How Not To Behave At Oral Argument

Don't condescend to the judges on your appellate panel, and try to show up wearing pants...

There’s not really much to say here. There are just a few things to remember to avoid an embarrassing oral argument. Basically, don’t condescend to the judges on your appellate panel, and try to show up wearing pants (and maybe some socks). Pretty simple, right?

We’ve seen this kind of confrontational tone out of lawyers before, and it never ends well for the attorney. Like when Jones Day’s Matthew Kairis thought it wise to continuously interrupt Judge Posner in Notre Dame v. Sibelius. What happened next was… entirely predictable: Kairis ended up with an earful from Judge Posner about the proper role of an advocate before an appellate panel.

This poor fellow earns the same basic tongue-lashing, just with a different accent…

On Friday, a Fifth Circuit panel consisting of Judge Grady Jolly, Judge Edith Jones, and Eastern District of Louisana Judge Lance Africk, sitting by designation, heard argument in Thomas Roque v. Natchitoches Parish School Board. The plaintiff’s attorney, Daniel E. Broussard Jr., argued that the lower court erred in granting the school district’s summary judgment motion. Broussard’s client is a black man who applied for the position of superintendent and was passed over in favor of a white applicant.

Both sides concede that Broussard’s client makes a prima facie case. The school board offered evidence that plaintiff was seriously considered for the job and given an interview, but passed over in favor of the white candidate who already had a doctoral degree and possessed prior experience as a superintendent, while Broussard argues that these justifications are pretextual based on alleged comments from a board member that she “[didn’t] feel that the community was ready for a minority Superintendent.” Ultimately, Judge James Trimble Jr. decided that a stray remark from a board member who did not yield leverage over the hiring process was not enough to establish pretext.

During oral argument, Broussard bristled at the panel’s lack of sympathy for his pretext arguments. You can listen to the argument here.

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But if you want to skip to the best parts, check out the exchange between Broussard and Judge Jolly, from about 7:00-8:10. When he cut off Broussard by saying, “you need to learn to argue in the Fifth Circuit,” Judge Jolly was probably begging for a confrontation. Still, Broussard didn’t have to take the bait. Oh, but he did — he took the bait, chomped down, and let the juices run down his chin, declaring that he’d practiced for 40 years and clerked for Judge Herbert Christenberry, adding that “I think I know a little bit about federal court.” And then the sneering, “Go ahead and tell me, though.”

The tension between Broussard and Judge Jolly gets so ramped up that around the 9:40 mark, Judge Africk steps in and benchslaps Broussard for not showing Judge Jolly the proper respect.

Meanwhile, I’m guessing Judge Jones leaned back, munched some popcorn, and quietly enjoyed the show. I guess there’s no reason to tell anyone to shut up when the proceedings are this entertaining.

Thomas Roque v. Natchitoches Parish School Bd., Oral Argument [U.S. Court of Appeals for the Fifth Circuit]

Earlier: The Benchslap Dispatches: I Pity The Fool Who Tries To Talk Over Judge Posner
Judicial Diva Gone Wild? Chief Judge Jones Tells Judge Dennis to ‘Shut Up’

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