Wednesday, March 19, 2008

District of Columbia v. Heller: The Elevator Speech as Part of the Lawyer's Repertoire in Oral Argument and Other Venues

Posted by Jeff Lipshaw

Suffolk Last night, the Center for Advanced Legal Studies at Suffolk Law School and the Entrepreneur's Forum of the Stanford Club of New England co-sponsored a program on the art of the elevator speech.

The elevator speech is the commonly-used shorthand for a talk, usually no more thanStanford_logo thirty to sixty seconds (i.e. the time you might spend with someone in an elevator), in which an aspiring entrepreneur conveys the gist of his or her new and eminently investment-worthy idea to a venture capitalist.  We held a well-attended gathering in which a panel discussed the attributes of such talks, and the participants workshopped their own.

My particular contribution (in addition to the fact that I used to be involved in representing clients in the entrepreneurship/venture capital arena) was to emphasize the elevator speech as part of the repertoire of both practicing and academic lawyers.   Anyone who has been asked to describe a research agenda at the AALS meat market has probably given an elevator speech, as has any professor who is asked to describe the thesis of a new article.  As a practitioner, I once gave an elevator speech at the counter of the Michigan Corporations and Securities Bureau, trying to persuade the clerk to accept for filing an unusual amendment to the corporate charter of a college, by which we would complete the merger of one institution into another.

Not unrelatedly, I had been helping some of our students prep for a securities law moot court competition a couple weeks ago, and I used the idea of the elevator speech as an analog for the opening thirty to sixty seconds of an oral argument, the time when you are least likely to be interrupted by the court.  If you haven't used that time to express the thesis why your side ought to win (or, at least, make your position clear), you have probably wasted it.  (In my strange and somewhat ADHD-addled career, I've also argued cases in the U.S. Sixth Circuit, the Michigan Supreme Court, and the Michigan Court of Appeals.)

So I was curious, the morning after the oral arguments in District of Columbia v. Heller, to see just how well the oralists took the advice I never had a chance to give them.  What follows is the portion of theHandgun argument that follows "may it please the Court" and precedes the first substantive interruption by one of the Justices.

Here is Walter Dellinger's opening gambit for the District of Columbia:

The Second Amendment was a direct response to concern over Article I, Section 8 of the Constitution, which gave the new national Congress the surprising, perhaps even the shocking, power to organize, arm, and presumably disarm the State militias. What is at issue this morning is the scope and nature of the individual right protected by the resulting amendment and the first text to consider is the phrase protecting a right to keep and bear arms. In the debates over the Second Amendment, every person who used the phrase "bear arms" used it to refer to the use of arms in connection with militia service and when Madison introduced the amendment in the first Congress, he exactly equated the phrase "bearing arms" with, quote, "rendering military service." We know this from the inclusion in his draft of a clause exempting those with religious scruples. His clause says "The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."  And even if the language of keeping and bearing arms were ambiguous, the amendment's first clause confirms that the right is militia-related.

Here is Solicitor General Paul Clement's opening for the United States:

The Second Amendment to the Constitution, as its text indicates, guarantees an individual right that does not depend on eligibility for or service in the militia.

Finally, here is Alan Gura for the respondent gun owners:

All 50 states allow law-abiding citizens to defend themselves and their families in their homes with ordinary functional firearms including handguns. Now I'd like to respond to one point that was raised related by the General --

JUSTICE SCALIA: Talk a little slower; I'm not following you.

MR. GURA: Okay. I'd like to respond --certainly, Justice Scalia. I'd like to respond to the point about the -- the District of Columbia's position over the years with respect to the functional firearms ban. The Petitioners have had two opportunities to urge courts to adopt this so-called self-defense exception construing the exception. The first option came in 1978 in McIntosh versus Washington where, the petitioners urged the Court of Appeals of the District of Columbia to uphold the law because it was irrational in their view to prohibit self-defense in the home with firearms. They deemed it to be too dangerous, and this was a legitimate policy choice of the City Council and they actually prevailed in that view.

The second opportunity that the Petitioners had to urge this sort of self-defense construction was actually in this case in the district court. We had a motion for summary judgment and we made certain factual allegations in this motion and on page 70a of the joint appendix we see portions of our statement of undisputed material facts. Fact number 29, which was conceded by the District of Columbia, reads: The defendants prohibit the possession of lawfully owned firearms for self-defense within the home, even in instances when self-defense would be lawful by other means under District of Columbia law. The citation for that is functional firearms ban and that point was conceded.

Certainly the idea that people can guess as to when it is that they might render the firearm operational is -- is not a one that the Court should accept, because a person who hears a noise, a person who perhaps is living in a neighborhood where there has been a spate of violent crimes, has no idea of when the District of Columbia would permit her to render the firearm operational, and in fact there is a prosecution history not under this specific provision, but certainly other under gun prohibition -- uh -- laws that we are challenging here today to prosecute people for the possession or for the carrying of a prohibited firearm even when the police ruled the shooting has been lawful self-defense.

As I read the transcripts, Mr. Dellinger and General Clement took my unsolicited and ungiven advice; Mr. Gura did not.

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Actually, if one listens to the entire oral argument having already understood the issues presented by the parties and amici (on both sides) and presumes that Gura predicted the rest of the argument and did not just get lucky, he hit on and answered clearly the MAIN point of concern and removed the only possibly succor for the District:

It's a ban, even on self-defense, and no amount of wiggling will get out of that simple fact when the District has previously argued (in another case) successfully that self-defense was NOT an exception.

Dellinger (for the District) was stopped at the point you end the quote and forced to managed to confess that even he understood the Right to Keep and Bear Arms as a individual one -- immediately giving up any hope except for either 'it's not a ban on self-defense' (silly given the District history) or 'then can have rifles that are locked up and unloaded' which was demolished by the Chief Justice's comedy routing of 'turn on the light, find my glasses, try to unlock the darn thing, etc'.

In the first exchange he lost, and abandoned his first and usually most strongly argued firewall.

Of course if you believe (incorrectly) that Solicitor General Paul Clement's main point is encapsulated in the quote you provide then this will encourage the pro-Rights side, but his MAIN point was that 'given it is an individual right. But if you read the briefs and listen to Clement his thrust is 'we recommend against scrict scrutiny as standard because we are afraid that will overturn too many current gun laws'.

He was stopped and forced into the sillyness of this objection with only one remaining hope: The Chief Justice indicated a willingness NOT to adopt ANY current 'standard' of scrutiny, since none of these are in the Constitution but mere historical baggage of the Court, and to look at this Right to Keep And Bear Arms afresh to determine what infringements might be permissible.

Gura was not perfect but he started more strongly (after being slowed down helpfully by Scalia) than any of the others -- he addressed what would later become the KEY point of the entire oral argument and the ONLY place where he has any significant jeopardy.

Of course, this requires we presume that Gura could, and did, predict where the real battle would be engaged.

Gura, lucky or smart? Either works.

Posted by: Herb Martin | Mar 21, 2008 2:39:41 PM

Herb, I was talking style more than substance. I'm not an expert on the merits of the case. Orin Kerr over at Volokh knows far more about the substance than I, and here's his real time note on Gura's opening:

"Gura isn't starting effectively: he's focusing on a very technical point, speaking very quickly, and I don't know if the Justices are even following what he's talking about. On the other hand, that may not be a bad thing; seems like he walks into his argument having five strong votes in his pocket, and he just needs to avoid losing them (which seems unlikely). Gura goes on for a few minutes until Breyer intervenes to ask a Breyeresque long hypothetical question that takes Breyer a few minutes just to ask."

That was my reaction. He wasn't saying clearly that the law (or parts of it) should be struck down because it unconstitutionally infringed the individual right to self-defense that is embodied in the 2d Amendment, but focused instead on something about the inconsistency of the District's arguments in this and prior cases.

Having said that, the respondent (assuming as Orin points out it makes any difference) has a different task because the argument should incorporate a reaction to what was actually said, rather than seem like ships passing in the night. Perhaps that is what he was doing.

One of my mentors used to believe that you should begin your cross-examination of a witness with a point that was made right near the end of the direct because it was fresh in the jury's mind and, if effective, could really turn things. That is, you don't follow the script necessarily as originally planned, but adapt on the fly. I'm not sure if that's as true in oral argument.

Posted by: Jeff Lipshaw | Mar 22, 2008 4:11:16 PM

Hi Jeff,

I enjoyed your post on writing an elevator speech. It was well-written and quite informative. Congratulations on a job well done!

I just made a post on crafting an elevator speech. I use a three-step process that follows a problem/solution/referral method that works for virtually any situation. Perhaps you can give a a try and let me know how it works for you.

I appreciate your feedback.

Best regards,

Glenn Andrew

Posted by: Glenn Andrew | Sep 1, 2008 3:27:55 PM

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