Monday, December 10, 2018
Recently, The National Law Journal ran a story entitled, "How to Tell a Justice They're Wrong." The story recounted an exchange between Justice Kagan and Lisa Blatt, in which Ms. Blatt told Justice Kagan that she was "fundamentally wrong in several respects." While Justice Kagan took the correction in stride, joking back a bit, it can be hard to correct a justice. As the article recounts, some advocates use the phrase "with all due respect," or prefer a softer word choice than "you are wrong."
While it is important to correct a justice's incorrect notions about a case--that is certainly part of oral argument--what about correcting a justice's pronunciation? Interestingly, my former colleague James Duane and I observed an advocate correct Justice Kagan's pronunciation of the word "antecedent" a few years ago. Jim wrote about the situation in a short article that was published by the Seton Hall Circuit Review. You can also download it here on SSRN. I blogged about the article in 2017. As I wrote then,
During argument in the case, one of the justices asked a question that mentioned the last antecedent rule. The justice pronounced "antecedent" in an unconventional manner. The advocate, who was quite skilled, used the more common pronunciation of the word "antecedent" in her response.
As he reflects in the article, Jim told us after the argument that he has "never contradicted a judge about the pronunciation of any word while arguing a case. I would instead either mimic the judge's mistaken pronunciation, or simply not use that word in my answer." Sound advice.
So, when it comes to "aunt" or "ant" or "tomato" or "tomahto," let the justice be right. BUT, when it comes to the facts or the law, you as an advocate have a duty to respectfully correct the court.