How to Keep It Real at the Fifth Circuit
A Law Clerk Asks Three Fifth Circuit Judges Four Questions
Article by Featured Author
Posted March 2017Chief Justice Rehnquist once said, “The client remembers the lawyer, the lawyer remembers the judge, and the judge remembers the porter who lost his luggage at the airport.” The lawyer’s task in written and oral advocacy is to differentiate himself in the judge’s mind from his lost luggage or his cold coffee or other distractions that may present themselves. Since I started a judicial clerkship last fall, I’ve seen advocacy — both written and oral — at a cerebral level. Unfortunately, not all advocacy is created equal. One of the most practical lessons I’ve learned in my short time as a clerk is that some techniques or practices really work. Others don’t.
Of course, I haven’t had enough time to compile a comprehensive list of the things that I find impressive or that seem to influence judges the most. Nor will I have the time to do so before I move on in August. Fortunately, three gracious Fifth Circuit judges agreed to let me pick their brains on the topic — which led to some of the most illuminating conversations I’ve had yet.
"Never lie or misrepresent yourself. Give an honest answer, and concede when necessary."
Selfishly, I would have liked to sit for hours and listen to these judges talk. For their sakes, though, I kept my investigation simple and asked only four questions. First, I wanted to know the most impressive thing these judges had seen in written and oral advocacy during their years on the federal bench. My next question provided comedic relief: What do advocates do that is most bothersome? Third, I asked for advice to new lawyers. Finally, I wanted to know their best advice for the underdog. Despite being an Alabama fan, which I must reference in everything I write, I have a soft spot for the underdog, or the person who has neither the law nor the facts on her side.
What works?
As for being impressed, judges want advocates to present a clear and accurate statement of the facts and the law in as concise a way as possible. Excessive length is problematic. To quote Jerry Maguire, as one of the judges did during our conversation, their plea to advocates is simple: “Help me help you.” A brief the length of War and Peace makes it hard to digest arguments and determine which information is helpful — or even relevant. And footnotes are not preferred, especially those in font small enough to strain even the healthiest eyes. The substance of the brief is usually more important than what you say at argument, so research the problem thoroughly.
For one judge, the best thing an advocate can do is spend a lot of time identifying key issues before writing. There’s nothing worse than a cluttered brief; make it focused, and you’re more likely to curry favor with the judges (and their grateful law clerks). Finally, and unsurprisingly, candor is expected, appreciated, and rewarded. Don’t argue beyond what the facts and the law permit. If you do, they’ll know. There’s no way that three judges and ten to twelve law clerks, all of whom study the cases extensively before argument, won’t be aware that you are misrepresenting yourself in some way. Keep yourself from falling into unflattering folklore by acting with integrity at each turn.
What doesn’t work?
Judges are, of course, bothered by different things. For one judge, it’s saccharine introductions. Advocates who attempt to win over the panel or ingratiate themselves come across as unprofessional, at best, and phony, at worst. There’s no need to remind the judges that you’re so honored and so privileged to be arguing before the court; they already know that. Instead, spend the introductory time making a real impression. Another judge is bothered by ad hominem attacks on opposing counsel. Attorneys should always act with civility, even if their opposition is an Auburn or (God forbid) a Clemson fan. No one expects praise for the other side, but appellate work is not the place for emotion. Passion, yes; outright meanness, no. Another judge emphasized how bothersome it is for advocates to talk over the judge during oral argument. In his words, all attitudes of arrogance should be checked at the door.
As an aside, one of the judges was quick to caution lawyers arguing before the Fifth Circuit in New Orleans about the dangers of the French Quarter. The worst thing that could happen at oral argument is a deregulation of blood flow and oxygen to the brain. So consider staying at the hotel the night before you argue. The nightlife will be there when you’re done.
Advice for new lawyers?
According to one judge, new lawyers, especially those arguing before the Fifth Circuit, should read Fifth Circuit briefs and listen to Fifth Circuit arguments before their own is scheduled to take place. Frighteningly, it’s obvious to the judges when an advocate is nervous, which becomes distracting. Become comfortable with the courtroom before an argument, and you’ll rely less on the podium for physical support and can focus instead on making your presentation. Another judge emphasized the value of first impressions. Advocacy, especially oral advocacy, is not easy. With experience, though, advocates develop a certain skill set and understanding of procedure that lends to valuable institutional knowledge. Before becoming a “repeat player,” be aware of how judges might perceive you. Reputations — good and bad — are hard, if not impossible, to shake. Become an advocate the judges can rely on. Become the one they look forward to seeing at the table.
Advice for the underdog?
One judge’s (sarcastic) advice: “Yell louder than your opponent.” Joking aside, judges are aware that attorneys occasionally must represent unpopular causes or clients unlikely to win. Even still, attorneys have a moral and professional obligation to represent those clients with the same zeal they would anyone else. That said, never lie or misrepresent yourself. Honesty is an advocate’s most important attribute, from the way she writes her brief to the way she answers questions at argument. And the panel will have questions, which judges urge you to welcome. Give an honest answer, and concede when necessary. According to one judge, if an advocate exhibits an understanding of the case and tries to be likeable, the panel may rule against her, but it won’t call her a fool. Also, be aware of the Fifth Circuit’s Rule of Orderliness. Absent an intervening change in the law by statutory amendment, the Supreme Court, or the Fifth Circuit’s en banc court, one panel cannot overrule the decision of another. So advocates with losing arguments should be aware of a case’s en banc potential. Put simply, you may live to fight another day.
I add a parting note about something my co-clerks and I have noticed that draws the ire of every panel, at least in our experience. Rule 28(j) letters should only be used for one purpose: citation of supplemental authorities (which, for the slow on irony, is the title of the rule itself). A Rule 28(j) letter is not for citing cases from 1982 that might, at some remote point in the future, become relevant. I remember one advocate being bitterly scolded by a judge during oral argument because of his misuse of the 28(j) process. Don’t be that guy.
The lesson is simple: Do it right, and keep it tight.
Special thanks to Judge E. Grady Jolly, Judge Rhesa H. Barksdale, and Judge Leslie H. Southwick.