Wednesday, February 3, 2010

Is it time to bag the whole "May it please the court" thing?

Thanks to Chris Wren for bringing to my attention this post from the Volokh Conspiracy in which the suggestion is made that we stop teaching students to prepare overly formal introductions for oral argument.

Here's the post from GW Law Prof Orin Kerr:

In law school, it’s common for students to be taught to give a somewhat grand introduction at the beginning of their moot court arguments. “MAY IT PLEASE THE COURT!”, the student is taught to announce, very slowly and formally, followed by an extended introduction that usually goes something like this:

“My name is Joe Student. I am here with my co-counsel, Jane Student. Together, we represent the Petitioner, James P. Robinson, in the case before you today. We will be dividing our argument. I will be arguing first, and I will discuss the First Amendment issues. Next, my co-counsel will argue second, and she will discuss the Due Process issues.”

Then the actual presentation begins. (See, for example, here at the 3:15 mark)

My sense is that this very formal presentation is pretty rare outside moot courts, though. In real life, it’s much more informal. In most courts, the judges have probably been hearing argument all day or even all week, and they’ve called your case and called you by name. They just need you to say for the appellate record who you are. In the usual case of an undivided argument, the whole introduction might just be a brief, “May it please the court, Joe Student for Mr. Robinson,” followed by the argument. Part of the reason for the informality is time, too: If you only have 15 minutes, even just a 30-second introduction is cutting into your precious time. 

Of course, if you’re a student in moot court and you are specifically instructed to make a formal introduction, then do it. But I thought it might be worth noting that it’s usually less formal in practice.

In response to comment about how we're presumably teaching students to model SCOTUS practice, Professor Kerr pointed out:

The funny thing about moots that model themselves after U.S. Supreme Court arguments is that you’re specifically not supposed to introduce yourself in a U.S. Supreme Court argument. The Clerk’s Office Guide for Counsel explains:

The Chief Justice will . . . announce that the Court will hear argument in the first case for argument that day. If you are counsel for the petitioner, you should proceed promptly to the lectern—do not wait for the Chief Justice to issue an invitation. Remain standing at the lectern and say nothing until the Chief Justice recognizes you by name. Once he has done so, you may acknowledge the Court by the usual: “Mr. Chief Justice and may it please the Court. . . .” Do not introduce yourself or co-counsel

So, is it time to rethink the whole "may it please the court" thing?

Hat tip to Chris Wren.

I am the scholarship dude.


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Yes, it's time to get rid of the very long introduction (although a short "may it please the court" can be helpful in getting into the correct frame of mind). The only benefit of the long introduction is that it gives a student (or beginning appellate advocate) a chance to hear his or her own voice and gain confidence before going on to the hard part of the argument. The biggest problem is that it only works if the court is not a particularly active court and will not interrupt it. If the court does interrupt, the long introduction has added absolutely nothing.

Other problems include that it prevents catching the ear of the judges or justices with something substantive and meaningful just when they are most likely to hear and remember best, it wastes time, it lends itself to the wrong pacing,such as rushing or singsonging, which then tends to continue throughout the argument), and it sounds like a show-and-tell exercise.

Posted by: Ellen Henak | Feb 5, 2010 7:42:37 AM

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