Monday, May 18, 2009

Richmond Reflections

I was in Richmond all last week (hence the light blogging), making a pair of oral arguments in front of the Fourth Circuit. For wildly different reasons, they'll both go down in my brain as particularly memorable.

My argument on Tuesday morning involved a sentencing issue. At the time my client was sentenced, the courts were still grappling with how post-Booker sentencing worked, and the district court went on at length about how it couldn't figure out how to apply a sentence below the Guidelines, as was appropriate to the facts and history of the client. In the two plus years that the case languished on appeal, the Supreme Court clarified a lot of things. Prior to the argument, I filed a supplemental brief laying out the recent developments in the law. For some unknown reason, the Government didn't reply, even though they'd asked to do so.

By the time the case was set for oral argument, it was pretty clear that my client needed a new sentencing hearing. After sitting through a mind numbing argument on a civil case (enlivened only by the fact that it sounded as if Foghorn Leghorn represented the plaintiff), I strode to the lectern, opened my notebook, and launched into my introduction. Before I even really moved on to any argument, the presiding judge cut me off and said, basically, "it certainly looks like this case needs to remanded for resentencing. Let's see what the Government has to say."

50 seconds! My argument lasted 50 seconds! The countdown clock on the lectern never even made it all the way through the 14th minute! My co-counsel said that I looked a little bit hurt, as if I had some brilliant points I'd worked up, but all for naught. That's somewhat true, but sometimes you just got to sit down and shut up. The panel grilled the Government for about 10 minutes, to no avail. They didn't even ask if I had any rebuttal. Safe to say, I think we won that one.

Friday morning's argument was a little different. For one thing, although the main issue (another sentencing issue) was pretty strong, it actually had arguments on both sides. For another, as my co-counsel and I walked to court, there were two empty school busses parked outside and a line snaking out the door. The possibility of a fully gallery rattled through my brain. We wound our way through the line of school kids and slipped through the metal detector.

I should say, at this point, that in the Fourth Circuit they do not tell you who is on the three-judge panel before which you'll be arguing. I think the theory is that it keeps attorneys from tailoring their arguments to a particular judge, but it's not a standard practice, as far as I know. The first time you get a chance to find out who is on your panel is after getting past security by checking out the docket sheets.

When listing the judges on each panel, they all have titles before their last names - Judge, Senior Judge, etc. - so I tend to skim over that and check out the names. Sometimes, a judge from outside the Fourth Circuit, or from one of the district courts, is sitting by designation, so the names aren't all familiar. That was the case on my panel, as the first name on the list was "O'Connor."

"Hmm," I thought, "there's no O'Connor on the Fourth Circuit. Wonder where he's from?" So I scanned back to the title - "Justice." Wait a sec - "Justice O'Connor"? Holy shit, I was going to argue in front of Sandra Day O'Connor! Since her retirement from the Court, O'Connor has sat on several circuit courts, so it's not unknown for it to happen, but I certainly wasn't expecting it. That probably explained the presence of the school kids, all of whom crammed into the court's en banc courtroom for our slate of arguments.

The argument itself went pretty well. The same presiding judge I had on Tuesday was presiding again, and even recognized me ("Weren't you here yesterday?"). Justice O'Connor seemed very sympathetic to the argument I was making, as did one of the other judges, so I have high hopes for this one as well. Regardless how it turns out, however, it'll be a day I long remember.

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