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Law Practice,
Ethics/Professional Responsibility

Feb. 6, 2023

Fighting for a “turnaround”

Before the judge rules, you have an ethical duty to fight like hell. After she rules, you have an ethical duty to shut up and live with it.

Myron Moskovitz

Legal Director, Moskovitz Appellate Team

90 Crocker Ave
Piedmont , CA 94611-3823

Phone: (510) 384-0354

Email: myronmoskovitz@gmail.com

UC Berkeley SOL Boalt Hal

Myron is author of Strategies On Appeal (CEB, 2021) and Winning An Appeal (5th ed., Carolina Academic Press). The Daily Journal designated Moskovitz Appellate Team as one of California's top boutique law firms. Prior "Moskovitz On Appeal" columns can be found at http://moskovitzappellateteam.com/blog.

You’ve just begun your oral argument to an appellate panel and the Justices quickly go on the attack. They launch a series of questions at you that strongly suggest one thing: they’ve read your briefs, and they aren’t buying your arguments. They are about to rule against you. What to do?

If you want to win, there’s only one thing you can do: try to turn them around. This is your only chance to save your case, and you have only a few minutes to do it. It’s tough – very tough – but you have no other choice.

A long-time lawyer buddy of mine asked me to handle an appeal in a case he’d lost in federal district court. OK by me. I sent him my draft opening brief, but he didn’t like it. He rewrote it, but I didn’t like his draft. So we ended up agreeing that our approaches just didn’t mesh.

I said, “It’s your case and your client, so go with your brief. Good luck.”

He replied, “But I still want you to do the oral argument. I don’t do those well. And I don’t want to bring in a younger lawyer to argue. These kids are advocacy eunuchs. When judges give them heat, they wilt. They don’t fight. I’ve seen you argue, and you’re a fighter. You’re old school, like me. We were taught to fight for our clients.”

I thought about that. He’s right about me. I am a fighter. I voluntarily went into a line of work – appellate practice – where it’s usually all or nothing. Unlike trial court cases, my appellate cases hardly ever settle. The respondent won at trial, so he thinks he’ll win on appeal. So why should he give up anything? Plus, after years of litigating the case, the parties are often pretty angry at each other, and in no mood to be rational.

So no settlement. I win, or I lose – nothing in between. It can get pretty stressful, but, as the eminent philosopher Hyman Roth put it, “This is the business we’ve chosen…” The Godfather, Part II. (His “business” was crime, including the occasional murder).

Why did I choose a business where I regularly submit myself to the highs and lows of all-or-nothing victory or defeat? One might ask the same question to tennis pros and NBA stars. But those guys are young, when the competitive juices are still fast flowing. I’m a bit past my youth - but maybe I’m not quite grown up yet.

But was my friend right about the younger lawyers? Are they wimps at oral argument?

I’ve watched lots of lawyers argue appeals – usually while waiting my turn at the bottom of an oral argument calendar. Most do a decent job of presenting their arguments and answering the judges’ questions. They look ok - but do they fight when they’re about to lose?

This question arises most clearly when the judges’ “questions” show that they are about to rule against you. That’s when oral argument matters. That’s the time you need to fight back.

It sometimes arises when you’re representing the respondent, and you just heard the presiding judge say to the appellant’s lawyer – right when she gets up to argue - “Please sit down, counsel. We have some questions for respondent’s counsel.” Every experienced lawyer in the courtroom knows what this means: “We’ve already written the opinion, and it’s against the respondent. We’ll tell him our reasons via our ‘questions,’ when he gets up to argue. He then has one short opportunity to try to talk us out of it. A snowball in hell would have a better chance, but we’ll give him a shot.”

Does he try? Most attorneys get up and half-heartedly repeat the arguments in their briefs. But the judges have already read the briefs, and found them not persuasive enough to do the job. So repeating those arguments on your feet has no chance of doing any better! But at least they appear to try. If the client is watching, the attorney had to do something to show that he’s earning his fees.

As the hammering continues, and the attorney’s answers make no dent in the Justices’ predetermined verdict, the attorney usually wilts, smiles wanly, and sits down. He’s lost the appeal. “That’s the breaks.” It happens, and life goes on.

Not me.

I’m not built to go through the motions and accept the inevitable loss. I fight. They ask their “questions,” and I go straight to the guts of the justice of my cause – working it into each of my answers. They push back, and I push back at them. It seems hopeless, but you never know. Something might open up. Maybe they got a fact wrong.

Also, it’s likely that one judge (probably the one fighting with me the most) drafted the opinion and is the one most committed to it, so there’s not much chance of turning him around. But it’s also possible that one of the other judges might be willing to challenge it at their post-argument conference – if I give her some good ammunition. Unlikely, but possible.

Sometimes when I fight, the judges seem annoyed. Their faces seem to say: “Why does this guy keep bothering us, telling us we’re wrong when we know we’re right? We’ve already decided the case, and we have other cases waiting on the oral argument calendar today. He should shut up and sit down, so we can move on.”

But I have faith that most judges appreciate a lawyer’s duty to fight for his client – respectfully, but ardently. I hope they won’t hold it against me the next time I appear in front of them.

I can’t be sure of this, of course, and neither can these younger lawyers. Maybe they’re afraid of retribution from the bench if they push back hard.

Is it ethical to let this affect your argument? Is a lawyer allowed to pull his punches for his current client to preserve a better chance to win for a future client? And is a lawyer allowed to go easy on the court in order to further the lawyer’s own career? Let’s look at the rules.

Rule 1.3 of the ABA’s Model Rules of Professional Conduct says: “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” Note “the client.” Your duty of zealous advocacy applies to this client – not to be traded off for “your client base” or “your career.”

And to me, “zeal in advocacy” means you don’t give up till the judge actually rules against you – which just happens to be the legal limit on zeal. In Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 126, after the trial court sustained objections to a lawyer’s questions to a witness, the lawyer continued to ask the same questions. The appellate court affirmed the contempt citation:

“The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law. It is the imperative duty of an attorney to respectfully yield to the rulings of the court, whether right or wrong.”

That sets a pretty clear line that reconciles two potentially conflicting ethical duties. Before the judge rules, you have an ethical duty to fight like hell. After she rules, you have an ethical duty to shut up and live with it.

When I argue a seemingly-lost cause, I come close to the line, but I’m careful not to cross it. During my oral argument, the judges indicated what they planned to rule – but they haven’t officially ruled yet. They haven’t delivered any signed opinion to me. Until that happens, my ethical duty to fight zealously for my client continues. I stop when my time runs out, or the Presiding Justice says they’ve had enough of me.

That said, I admit that once in a while, in the heat of the moment, I’ve said something I later regretted. One time, when a judge ignored my contention that a reported case expressly rejected his approach, I proposed that he put his approach in his opinion so I could take it to the Supreme Court. Ouch! Maybe an argument too far …

My last-minute, Hail Mary efforts to save a losing cause are not entirely last-minute brainstorms. I’m pretty quick on my feet, and I’ve been around a while, but I too can be startled by a sudden shot across the bow. So I prepare to fight for a turnaround. Indeed, that’s just about all I prepare for. I figure, “When I get to oral argument, the Justices have read my briefs. That either worked or it didn’t. If it worked, I’ll probably win no matter what happens at oral argument. But if it didn’t work, I need to come up with something new and bold to turn them around.” So I review the briefs and the record with any eye towards a new angle – a short, powerful argument that cries out for justice. It’s almost never a reported case, or any other legal authority. It usually comes from the facts, or a new twist on the facts.

Alas, I cannot claim great success from my Hail Mary efforts to save a losing cause. It’s really tough to turn around three (or seven or nine) smart, experienced minds that are made up. But I have done it occasionally, and so can you. Prepare to fight - then give it all you’ve got.

#370873


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