Before he was chief justice of the United States, John Roberts was a prominent appellate lawyer who in one case found himself on the wrong end of a unanimous U.S. Supreme Court ruling. Asked why the court ruled against his position 9-0, Roberts quipped humbly, “There are only nine justices.”
That story came to mind as readers digested an article about a Fulton County prosecutor who ran into a buzz saw of criticism from three Georgia Supreme Court justices during a recent oral argument. “Incomprehensible,” “scary” and “frivolous” were among the justices’ descriptions of the state’s position that a judge was right not to suppress statements made by a murder defendant who told officers multiple times he wished to remain silent.
To be sure, harsh skepticism from three members of a nine-member court doesn’t necessarily predict failure. Experienced appellate advocates say they welcome questions so they can explain their position and alleviate any concerns judges have about it.
The Daily Report asked some appellate lawyers in Georgia how lawyers should handle judges who appear hostile to their position—without commenting on the recent Fulton County case at the state Supreme Court.
‘Have someone play the hostile judge’
“It happens sometimes,” said Laurie Webb Daniel, who heads the appellate practice at Holland & Knight. At the U.S. Supreme Court, she recalled, “I had [Justice Antonin] Scalia on my case.”
Years later, she got similar treatment from one of Scalia’s former clerks, Justice David Nahmias at the Georgia high court.
“It used to be Nahmias will hammer everybody,” said Daniel, but she noted that Justices Nels Peterson and Keith Blackwell are also tough questioners. (Nahmias, Peterson and Blackwell were the justices who expressed such displeasure with the Fulton County suppression argument.)
Daniel noted that Blackwell is known for posing “dreaded hypothetical” questions that twist the facts of the case at issue into unrecognizable situations.
But Daniel warned, “You can’t just say, ‘That’s not my case.’”
Each matter depends on specific facts and law, but she said advocates sometimes can tell a justice that a particular hypothetical situation is so unlikely to occur that “it’s not a justifiable basis for a rule of law.”
Daniel emphasized the importance of practicing arguments before moot courts of colleagues to prepare. “Have someone play the hostile judge,” she urged.
‘You aren’t there to defend yourself’
Amy Levin Weil, who headed the appellate division at the U.S. Attorney’s Office in Atlanta for 18 years before going into private practice, wrote in an email: “I’ve only once been yelled at during argument—by a visiting judge from California who didn’t understand what I was saying.”
“Instead of duking it out (which I wanted to do), when I realized he was never going to get it, I moved on. Even after his joining the unanimous decision in my favor, after 20 years, I’m still not over it.”
“You have to be very careful in responding to hostility from the bench,” added Weil, who is slated to argue a case at the U.S. Supreme Court this fall. “You never want to find yourself arguing with the court; it is important to be professional and show the judges respect. But it also is important to advocate for your client. Try to find common ground; perhaps the judge made a singular good point that you could acknowledge and either weave into your argument or contrast with the facts or law. If only one judge appears against you, see if you can persuade the other judges. If no one is on your team, move on to another issue or another point. Just remember that it is not a level playing field; you should not even consider responding in kind to hostile or aggressive language from a judge. You aren’t there to defend yourself; you are there to advocate for your client.”
It’s not personal
Leah Ward Sears, who served on the state high court for 17 years, including four as chief justice, wrote, “When dealing with judges who are hostile to or skeptical of your position, just remember that it’s your position they don’t like, not you, personally. So stay as cool, calm and composed as you can.”
“You can’t control how anyone chooses to behave toward you,” added Sears, who’s now a litigation partner at Smith, Gambrell & Russell. “You can only control how you will respond. And in the end you will come out a winner when judges and other lawyers know that you are a person who will always comport herself professionally and courteously.”
‘You don’t always have to fight everything’
Leighton Moore, who heads an appellate practice in Atlanta, wrote: “Sometimes you just have to stand up there and take your licks, but there are some approaches that can help.
“I think it’s useful to have alternative arguments, if possible, so that if you’re losing with one you can pivot to another and still win. Also, sometimes a controversial trial court decision has to be affirmed because of the standard of review on appeal, or because of a jurisdictional issue. Those types of procedural arguments are more emotionally neutral and can help cool things down.”
“One thing that usually doesn’t help is to stand there arguing with judges who have already decided an issue against you. You don’t always have to fight everything. Sometimes you can just candidly observe that it looks like your time is better spent on another issue, and switch over.”