Thursday, March 31, 2011

Oral Arguments

I really hate bad-mouthing Hawai'i and its legal profession.  I truly look for lawyers here that I can compliment and say that they're not an embarrassment to the profession or should be disbarred for their incompetence.  I have a few theories on why the quality of legal services here in Hawai'i is below average, but perhaps I'll save that for a different day.  Today, I want to talk about something I saw yesterday.  I wish I recorded it's going to be hard to visualize.

Yesterday the Intermediate Court of Appeals held oral arguments for two cases at the University of Hawaii Richardson School of Law.  The ICA normally holds oral arguments at the Supreme Court courtroom, but every once in a while it's held at UH to give law students the opportunity to get free lunch see attorneys argue an appellate case.  Afterwards there is a Q & A where students can ask the judges and law clerks questions about their jobs.  It's also a way for students to start thinking about clerking after law school.  Of the 12 clerks at the ICA only 3 are non-UH law graduates.

Anyway, yesterday involved two cases.  The first dealt with a fairly interesting search and seizure case involving the exclusionary rule and the fruit of the poisonous tree doctrine.  The case was really well-argued on both sides of the case, which made it both enjoyable and interesting to watch.  I thought the attorneys were well-prepared, articulate, and made well-reasoned arguments.

That's not the case I want to talk about.  No, the case that the world needs to know about is the second one. First of all, it was a traffic case about the calibration of a radar gun.  In Hawai'i you can be arrested for "excessive speeding."  It is a crime.  From the beginning this argument was a nightmare and a circus.  The Appellant's attorney (i.e. the defendant lost in the lower court and is appealing) was absolutely the worst attorney I have ever seen.  His behavior was inappropriate and disrespectful and completely undermined the legitimacy of the court (well, as much legitimacy as there can be when you listen to traffic cases...but stick with me).  His behavior (and argument) was so bad that it was laughable.  I feel the need to bring this up as a warning to any future (or current) lawyers who may do some of these things.

First, he drifted off topic several times and started "lecturing" rather than "arguing."  An oral argument should generally go like this:  brief summary of facts, point of error one, argument; point of error two, argument; etc.  During this time the judges will barrage the attorney with questions challenging the arguments.  This guy omitted the facts altogether (not terribly important as the judges read the briefs), but when asked the first question, the attorney literally said, "judge, I don't want to answer that, or go into that, because that point hurts my case. I want to talk about this grave injustice."  The attorney then turned around to the audience (i.e. turned his back on the judges) and started lecturing the audience.  He said, "see, this is what happens when you're caught speeding, you have to come up here and answer tough questions. don't speed."  He turned his back on the judges AT LEAST 3 times to address the audience.  At one point, he used the edge of the counsel's table to demonstrate "a cliff" that you fall off when you speed and then told the audience that they should never plead guilty unless they want "ridiculous" and "unjust" minimum penalties.

Second, he objected during the other side's argument.  For anyone not familiar with appellate arguments, you can't do that.  You can't say anything when the other side is speaking.  Both sides get 30 minutes.  When your time is up, you remain silent.

Third, when the other side made their argument, this guy banged his head on the table.

I wish I could recount more accurately the specific things this guy said, but suffice to say there were several times the judges themselves were laughing.  In my opinion, the lawyer should be sanctioned.  However, the judges never gave him a warning or tried to reign him in, so it's hard to sanction someone without putting them on notice.

That is sort of my point, though.  What kind of message are the judges sending to attorneys when they let them get away with this sort of spectacle?  In front of a room of future lawyers, the judges sent the message that it's okay to be unprepared.  It's okay to disrespect the court.  It's okay to interrupt the other side.  It's okay to not make a coherent argument.  In short, their silence made it okay for this guy to provide bad representation to a client.  I'm sure the judges didn't want to embarrass the lawyer.  In fact, afterwards one of the audience members remarked that they felt sorry for the lawyer because he clearly had no idea what he was doing.  My immediate reaction was that we should feel sorry for the client!  Someone paid this guy to represent him in court.  It looked like the lawyer was having a great time giving his lecture and making his gestures and making absurd comments, but at the end of the day someone needs to remember that this guy represented someone accused of a crime.  Someone's life, and criminal history, was in this guy's hands.  What are we saying, as a profession, when we fail to prevent people like this from becoming a practicing attorney?

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