Saturday, May 18, 2019
A few weeks back, Deputy Assistant Attorney General Thomas Ward argued before the Fourth Circuit. What followed "May it please the Court," has become a lesson for appellate practitioners everywhere: Always remember your audience.
The case is Sanders v. United States, No. 18-1931. It's a pretty important case in its own right. Sanders is a Federal Tort Claims Act case. The plaintiffs alleged that the Government had failed in its duty to conduct a background check on Dylann Roof, the man who murdered nine African-Americans in Charleston, South Carolina. The plaintiffs contended that the Government's failure had allowed Roof to buy the guns used in the shooting.
The Government contended that the FTCA's discretionary function exemption applied and, thus, that there was no liability. That argument carried the day at the district court, and the Government relied on the same argument on appeal. The panel was relatively conservative, so the Government should have felt pretty good about its odds.
The Fourth Circuit's Chief Judge, Roger L. Gregory, wasn't having it. He asked a particularly charged question, which ended with Judge Gregory calling the Government's argument "absurd." That exhortation drew an eyebrow-raising comment from Mr. Ward, who responded, "Your Honor, I know you're not trying to humiliate me by that tone." What followed was a well-deserved tongue lashing from Judge Gregory, ending with the command to "just answer [the] question."
Mr. Ward's Sanders argument is a great example for us all. It's tough to see another attorney go through something like that. There, but for the grace of God, go I, right? Even so, the exchange offers an important lesson. Always keep your audience in mind. Remember that most judges are warm, friendly people, but that every so often one will find your considered position offensive. You've got to do your best to put these personal differences behind you. Otherwise, your argument will end up as a footnote to the much more juicy exchange you had with the bench. I know I remember very little about the Sanders argument, other than the attention-grabbing bit.