Civil Discourse Now

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Oral argument before an appellate court and the image of a roller coaster: apt metaphor.

   A colleague called me yesterday morning to say The Indiana Law Blog had an item about the picture of a roller coaster having been superimposed on the video of oral argument in Whistle Stop Inn, et al v. City of Indianapolis in which I argued for Appellants/Plaintiffs Monday afternoon.
   First, I was concerned someone might believe I had something to do with the matter. There would be little point to illustrating an oral argument with a graphic the judges could not see. Also, without having researched the matter, I feel confident when I say to have done so would violate some Federal or State statutes, or statutes of both.  Such conduct also would violate some provision of the Rules of Professional Conduct. Thus the conduct would be both wrong and stupid. I would point out, however, that my lack of techno-savvy for such matters can be gauged by my inability to “link” either the ILB items or the oral argument in question to this blog. I never was able to repair the 8-track tape deck I received for a high school graduation present in 1973. The deck fried out on Black Sabbath’s “Master of Reality” album, purchased, as I recall, at Tuchman Cleaners when that merchant marketed 8-track tapes for a dollar each.
   My initial concern was put to rest about the roller coaster later on Wednesday. Martin DeAgostino, Communications Director for the Indiana Court of Appeals, was quoted by The Indiana Law Blog to say the system had not been “hacked”: “The image you’re asking about is a stock image that is preloaded into our recording system. The image inadvertently appeared during the webcast when the system operator made a stray keystroke. It in no way involves any question of system integrity or ‘hacked’ access to the webcast or the Court’s webcasting system.”
   Concerns now alleviated, I pondered the roller coaster image as a metaphor for oral argument.
   Magnum, at Cedar Point, when I visited the park and rode the ride, was billed as the world’s tallest, fastest roller coaster. One morning, before the park opened, I watched, from the back of the hotel in which I stayed, as employees rode the coaster in preparation for the day’s customers. The cars would inch toward the top of the first hill. I could hear the “clink-clink-clink” of whatever mechanism pulled the cars to the summit. At a point at which the first three cars had crested the hill, the mechanism released, gravity took control, and the coaster flew down on its run.
    After the park opened, we stood inline for 45 minutes to ride Magnum.
   The wait was a bit unnerving. There were screams from the riders of Magnum, but also from other rides. Anxiety was understandable. I had thought through how I would react on the thing. One overriding concern was not to puke.
   When finally our turn came, and we were strapped or whatever into our seats, the cars began to move. The first “hill” of the ride was the tallest and steepest. I looked down at Lake Erie and at other of the park’s customers, as everything down there grew smaller.
   As we neared the top of the hill, I listened to the “clink-clink-clink” of the mechanism that hauled us up the hill. From the sixth or seventh car back, I watched as the first, second, and third cars crested, and went over the summit. There was a pause as the thing was released. We hurtled down the hill and through the course. One flashes on concepts of mortality in some moments. The ride was short. I did not puke. My eyes even were open as the cars shot down the first hill.
   Oral argument is similar to a roller coaster ride. If there is some great karmic cluster of chips in the Central Processing Unit of the mainframe that runs all mainframes, that would have been an alternative explanation for someone having hit the wrong keystroke.
   Many people have not seen an appellate argument. I would encourage everyone to go to the website of the Indiana Supreme Court and the Indiana Court of Appeals and watch one.
   The wait for the judges or justices (whether the case is before the Court of Appeals or Supreme Court) to take their seats at the bench is somewhat anxiety-laden. The doors to the chambers are closed. There is no “clink-clink-clink” as we begin to climb the first hill, but I swear I can hear the clock on the wall.
   The justices or judges (I want to make sure I flip that; the Supreme Court is the higher court and so, I want to mention its members first) enter from behind the bench as the bailiff bangs the gavel and announces the Court is in session. Some courts have much more archaic ways of announcing court is in session. Any way it is done, the effect is the same—the cars have crested the hill, the mechanism has been released, and the gravity of argument takes hold.
   Lawyers in oral argument do not read from scripts. We do not argue with each other. Instead, we answer questions from the judges or justices. Every bench before which I have argued in Indiana has been a “hot” bench. Usually, after I say, “May it please the Court,” the name or names of the party or parties I represent, and the relief we seek, the questions start. Sometimes the time at the lectern seems much longer than one had thought 15 minutes or whatever could be. Other times, time seems to fly.
   There are two things I write at the top of my legal pad for each oral argument: “LISTEN” and “SLOW DOWN.” The first is because good oral advocacy involves listening to the questions of members of the court AND ANSWERING THOSE QUESTIONS. To listen to the questions is (I reasonably believe) the best way to accomplish that task. The second is because I was a debater in college. My first couple of years, we “spread.” In other words, we would talk as fast as possible (200 to 225 words per minute I believe one journal article noted) to get as many arguments into the record as possible as that would make refutation by the other team more difficult. Speech at such velocity does not bode well for rational understanding. So I endeavor to SLOW DOWN.
   Debate was good preparation for oral advocacy. Better training, however, was two years of standup comedy in Chicago. I stood in front of a room of people, half of whom were drunk, who had paid good money to have me (and other comics on the card) make them laugh. And half the people who were drunk thought they were funnier than the people on the stage. (In some instances those members of the audience were correct.) That’s a tough room to play. An appellate court also is a tough room to play. Unlike comedy clubs, where hecklers can be tossed out, in appellate courts, the judges will continue to hit one with tough questions. One feels concern for one’s own mortality.
   The questions go to opposing counsel in similar fashion. Then there is time for rebuttal.
   After several minutes the ride is over. One still is alive.
   Someone hit the wrong keystroke in Monday’s oral argument. If the image had been of something else, the metaphor might not have been as apt. There even could have been an excerpt of the greatest movie of all time, “Plan Nine from Outer Space” by Edd Wood. I do not know that I could have blogged about that.  
   One final point I need to make about the video system of our Indiana Supreme Court. I watch all my oral arguments to spot the things on which I need to improve. However, there is a glitch in one of the cameras in the Indiana Supreme Court chamber. The camera from behind the lectern is defective. The image it shows of me shows a bald spot on the back of my head. I never have seen a bald spot on the back of my head. When I mention this to friends, they chuckle and say the camera has it right. I indeed have a bald spot on the back of my head.
  I do not have a bald spot on the back of my head.

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