Wednesday, February 13, 2008

/Something Relevant to Boalt Here/

I had a BLAST at 9th Circuit Day, today. I thought it would be interesting, but I had no idea it would be fun. Please enjoy these quotable moments -- not verbatim by any stretch -- from the arguments:

Judge Quotes:

US Attorney: "The Immigration Judge does not believe the petitioner says who he says he is."

Judge Noonan: "You know, all your other claims are just garbage. You have to admit you are not going to win. But there is one claim here where you might (just might, mind you) be persuasive. Why don't you focus on that one?"

Judge Noonan: "Yes, he did say that. But he's lying. He's been telling lies!"

Judge Bybee: "If we concocted a different theory -- say, that he delivered the paper by Federal Express instand of hand delivering them -- you wouldn't be standing here today?"
US Attorney: "Yes, that's correct your honor."
. . . .
Judge Bybee: "Mr X, I think you have done a good job of defending a difficult case. It's not your fault you are here, but the fault of a policy background over which you have no control."
US Attorney: "Thank you your honor. And that's a policy decision that's way above my pay grade."

Judge Noonan: "You are trying to tell me that your ran up 4 million dollars in paralegal fees? Thats unbelievabe. 4 million in paralegals?"
Attorney: "Yes, your honor, I believe that's what the record says."
Judge Noonan: "I'm supposed to believe that you charged only 2 million in attorney's fees. And 4 million in paralegals?"
Attorney: "Yes, if that's what the record says."
Judge Bybee: "Does your firm have a website."
Attorney: "Yes."
Judge Bybee: "Does it recount your triumphs as a firm?"
Attorney: "I don't recall."
Judge Bybee: "Do you conduct press releases?"
Attorney: "I do not recall."
Judge Bybee: "Okay, then, in the ordinary course of events, would a law firm have advertised these events as a 26 million dollar recovery, or a 3 million dollar recovery? In ordinary conversation, you would say you recovere 26 million dollars, not 3 million dollars, right?"
Attorney: "You know, I really can't say."
Judge Bybee: "These other fees, that supposedly weren't legal fees. You didn't know Allen and Price was law firm?"
Attorney: "No"
Judge Bybee: "Well, I did."
Attorney: "All I know is from the record."
Judge Bybee: "But the record is written on letterhead from Allen and Price!"
Attorney: "Yes, your honor."
Judge Bybee: "So you did know they were a law firm?"
Attorney: "Yes"
Judge Bybee: "Even though you just said you didn't?"
Attorney: "If you thought I said that I didn't know, then I must have misspoke."
Judge Bybee: "Okay, then. Moving on, here, why did you use the word "recovery" instead of some more specific term in the contract?"
Attorney: "I didn't write the contract."
Judge Bybee: "But your client signed it, right? And you are good lawyers?"
Attorney: . . . .
Judge Bybee: "You are good lawyerrs, right?"
Attorney: . . .
Judge Noonan: "You don't have a case and I don't think you have a valid claim here."
Attorney: "I agree that I don't have a case on point. I wish I did. But think if we look at the totality of the record . . . ."
Judge Thomas: "91% of the money went of the lawyers here, 9% went to the plaintiffs, and now you guys are here fighting over it. When I pick up the briefs, I find that rather jarring."
Judge Bybee: "Back to the expenses. Over 4 million dollars is a lot of paralegals."
Attorney: "Yes your honor. A lot of paralegals. A whole building full of them."
Judge Bybee: "And only two million in attorneys' fees. Just amazing. And don't you build in profits on those paralegals fees, anyway? So the firm was profitting there, too?"
Attorney: "I knew I shouldn't have gone into this on rebuttal."

Judge Noonan: "You know that you have not stated the law correctly."

Judge Noonan: "Your policy covers fraud, and someone charged fraud. Why didn't you cover them?"
Attorney: "Well it covers fraud unless that fraud results in someone acquiring ill gotten gains."
Judge Noonan: "Are you seriously making that argument?"
Attorney: "Excuse me?"
Judge Noonan: "Are you seriously making that argument?"
Attorney: "Excuse me?"
Judge Noonan: "Are you seriously making that argument to me?"
Attorney: "Yes, your honor."
Judge Noonan: "Well you will have to please spell it out then."
Judge Thomas: "I think what you are trying to tell the court is that if the damage results in economic injury, then your insurance doesn't cover it."

Judge Thomas: "Who wrote the findings?"
Attorney: "Well, he used our documents as well as others to form his opinions, but a lot of what he wrote was his own."
Judge Thomas: "Then why were they printed on your letterhead?"

Attorney: "Cognizant of the fact that I am in before law students today, who undoubtedly would like to hear oral argument, I also think my position has been made clearly enough that if I use up all of my allotted time I will only begin repeating myself. Unless the court has any questions?"

Attorney: "It seems to me, your honor, that you are playing devil's advocate here."
Judge Thomas: "Well, of course I am. I am supposed to be doing that."

Judge Thomas: "I understand the distinction between this case and those that cut against you, but what case goes for you?"
Attorney: "Well, no case goes for me. But these kinds of cases don't come along very often."

SF DA: "There is no evidence that this officer was inovlved in random violence on the street."
Judge Thomas: "Are you saying he was involved in planned violence on the street?"

And . . . . [drumroll please] . . . the worst argument of the day, appealing a summary judgement ruling:

Attorney: "If people can elect a president, why shouldn't we let a jury vote on causation?"


From the Q&A session with students:

Judge Noonan [regarding the court's reversal rate]: "Typical numbers are 20 out of the 16 thousand cases that come before this court. Who is worrying? It's like being struck by lightening"
Judge Thomas: "Well, in that case I've been struck by lightening a time or two."

Judge Thomas [regarding the court's reversal rate]: "Its' largly a media myth. But you just take the repution, like Dennis Rodman."
Judge Bybee: "We're the Dennis Rodman???"
Judge Thomas: "Yeah, we're like the bad boys of the federal circuit."

Student: "May it please the court."
Judge Thomas: "Sometimes it doesn't"

Judge Noonan [regarding the persuasiveness of oral argument]: "You are absolutely right -- we've read the briefs, we've looked at the record, and we've made up our mind! Now it can be changed, maybe 1 in 10 times, but we have done our homework, and we are intelligent, and of course we have made opinions prior to oral arguement!"

My predictions on rulings, which are based on the oral arguments only:

Omondiagba v. Mukasey: Appellant. Hand delivering a valid birth certificate destroys your credibility? Seriously?

Broen & Bain v. O'Quinn: Appellee. 4 million in paralegal fees, 23 of 26 million to the lawyers, and now you want to hang on to another 3 millions?

Research Corp. v. Wesport Ins. Corp.: Appellee. No one really thought they had negotiated a policy which only covers events that do not result in economic harm, did they?

Snyder v. San Francisco. Draw. It seemed like the judges were willing, eager even to hear the appellant's argument. In fact, it seemed like they wanted to help him make it at times. But the rambling, hyper-nervous, quaky voice chatter of appellant's attorney never quite put all the pieces in a row. And his opponent, DDA SF, had obviously been in court a time or two. Maybe appellant's briefs are better -- if so, SFPD is going to be bummed.

13 Comments:

Blogger MRP said...

Hey Patrick,

Great post - thanks for writing down all those quotes.

2/13/2008 1:48 PM  
Anonymous Anonymous said...

I think its funny that the only people commenting on this blog are the bloggers themselves.

2/13/2008 1:57 PM  
Blogger Armen said...

Awww, memories of Judge Noonan screaming in a thick Boston accent, "WHE'S THE HAHM?" Also memories of another disgruntled commenter trying to start a rival blog. I hope you don't flyer the halls like the other guy.

2/13/2008 1:58 PM  
Blogger Learned Hand said...

It's not a rival blog as much as it's another blog to report on and encourage discussion of topics relevant to Boalt. I will continue to read and support Nuts & Boalts.

2/13/2008 2:01 PM  
Anonymous Anonymous said...

If I did not know this already, after 9th Circuit Day, I have become convinced I had better know what the HELL I am talking about if I ever appear before them! As Patrick’s post shows, some of those attorneys were eaten alive.

2/13/2008 2:38 PM  
Blogger Patrick said...

That’s a good idea. But I do not know if it was an issue of knowing what they were talking about so much as that the judges seemed to go for the throat on the merits, right out of the gate.

And some of the merits seemed something less than, uh, meritorious.

2/13/2008 2:44 PM  
Anonymous Anonymous said...

I loved how the city attorney spent 3 min. telling the 9th circuit that the 14th amendment only applies to state action.

2/13/2008 3:09 PM  
Anonymous Anonymous said...

That was only matched by his opponent's contention, which was that since we let people vote for president, causation should have survived summary judgement so the jury could vote on it, too.

Those judges have a tough job in this case . . . maybe they'll rule against both parties?

2/13/2008 5:56 PM  
Anonymous Anonymous said...

I agree. Oral argument could be improved if the judges could apply an increasingly painful electrical shock when the attorney's argument starts getting crappy.

"Your honor, if you let people vote for president, you should let a jury vote to determine causation. ****Bzzzt****"

2/13/2008 8:07 PM  
Anonymous Anonymous said...

Did Yoo and Bybee play bondage games when it was over?

2/13/2008 8:27 PM  
Blogger McWho said...

No, but they did make fun of the fact that the Marine mess makes berkeley hippies forget about Yoo for a few months.

2/13/2008 10:25 PM  
Anonymous Anonymous said...

This morning, a certain civ pro II professor pointed out this blog's error in calling the attorney from the first case a "Deputy DA." He was an AUSA.

2/14/2008 12:14 PM  
Blogger Patrick said...

Apologies to the AUSA. Or the CP II professor, whoever cares more.

2/14/2008 1:46 PM  

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