Monday, April 28, 2008

bad behavior at oral argument

From the Legal Writing listserv . . .
A snip from a case (go straight to the footnote) that might be interesting for students to read before their oral args. next year, or assuming the argument is available, it might even be better to listen to it.

From: Hartz v. Administrators of Tulane Educational Fund, Slip Copy, 2008 WL 1766886, C.A.5 (La.),2008, April 16, 2008 (Approx. 6 pages):

E. Roger Phipps' Conduct

*8 Finally, and completely separate and apart from the issues raised on appeal, we would be remiss if we did not comment on the conduct of Roger Phipps, counsel for Hartz, during oral argument in this case on Tuesday, March 4, 2008. Phipps' conduct towards the Court during argument was unprofessional. Even more serious was his admission that during his work on the case (including his preparation for argument), he had not read a key Supreme Court case. His cavalier disregard for his client's interest and for his obligation to the Court was both troubling and disgraceful.FN4 Accordingly, we are ordering Phipps to provide his client, Hartz, a copy of our opinion immediately after it is released. In order to ensure compliance, we are further directing him to supply our Court with proof of service.

FN4. An example of Phipp's interaction with the panel is included below.Phipps: ... so that's about all I have to say, Your Honor. I don't have anything other than that. You know, my client lives in Chicago. We communicate occasionally on the phone, she sent me the documents. And um, she's a doctor. She continues to earn a living, and she's generally unavailable if you call her because she, she's sort of a traveling doctor.Judge: That's not much of thing you come in here and tell us, I guess.Phipps: Well, my attitude is, the [district court] judge got it right.... And as far as whether even Ricks should apply, I don't think it should.Judge: What do you do about Morgan?Phipps: I don't, I don't, I don't know Morgan, Your Honor.Judge: You don't know Morgan?Phipps: Nope.Judge: You haven't read it?Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don't know if that's not Ledbetter, I can't remember the name of it. Ricks is the one that I go by; it's my North star. Either it applies or it doesn't apply. I don't think it applies.Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here-it's a Supreme Court case-and say you haven't read it. Where did they teach you that?Phipps: They didn't teach me much, Your Honor.Judge: At Tulane, is it?Phipps: Loyola.Judge: Okay. Well, I must say, that may be an all time first.Phipps: That's why I wore a suit today, Your Honor.Judge: Alright. We've got your attitude, anyway.

hat tip:  Kathleen S. Bean, Professor of Law, University Distinguished Teaching Professor, Brandeis School of Law, University of Louisville

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