Robert (gurdonark) wrote,
Robert
gurdonark

oral argument and flight cancellation



Wednesday I argued in an appeal in the United States Fifth Circuit Court of Appeals in New Orleans. I was pleased to find it only a few blocks' walk from where I was staying at Le Pavillon Hotel.

The court is located in a large building that looks satisfyingly like a courthouse. The Fifth Circuit is a federal appellate court, which has jurisdiction over appeals from cases in Texas, Louisiana or Mississippi. Federal court is a bit more formal than state court, and a circuit appellate court is a bit more formal than some federal courts.

The oral arguments began at 1:00 p.m., and our argument was third on the docket. Nonetheless, the attorneys were required to appear in person at the Clerk's between noon and 12:30 p.m. to check in for the argument. Once we had checked in, I came to understand we were not supposed to leave. I postponed lunch plans.

The court had a small room next to the court, an "Attorney's Lounge", available for people to sit in until their argument arose. Inside this small room which held banker's chairs, a listing of the cases for the day and the judges assigned to the cases was posted. The little room had a light and buzzer system to let one know which cases were being argued. I paced about a bit, rehearsing what I hoped to say. When the light and buzzer system came on for the appeal just before mine, I went into the courtroom to listen to the prior arguments.

I caught only the very tail end of the first case, a criminal appeal, in which the defense attorney was wrapping up his reply. Then I heard the second oral argument.
This appeal involved a breach of contract case arising from aircraft maintenance. The plaintiff's theory was that the aircraft went in for repairs without a leak, and came out with a leaking engine. The court had rejected this theory during the trial after plaintiff's case was presented. The appellant/plaintiff's task was to demonstrate that the lower court had been in error when it found no contractual duty and no damages.

I thought the argument went well for appellee overall, but there was one wrinkle. The defendant, and appellee, was represented by two attorneys. One attorney, the lead counsel, was a fellow who seemed very old (and thus was about my age). He had with him a
very young "second chair", a woman who could not be very long out of law school.

The "first chair" did a courtesy for his younger co-counsel. He allowed her to do five minutes of their twenty minute oral argument. This was a rare thing, because they both worked for one of those nationally-known mega-firms in which very young lawyers only get to carry briefcases and do gofer work during hearings. I was amused,in fact, for they had brought with them one, very small, Well's-Fargo-Pony-Express-saddlebag-ish briefcase, albeit a tasteful and refined one as to which my description is inadequate.
One need not guess who got to carry this--she did.

I was so pleased that he let her argue part of the case, ostentatiously reserving her five minutes of their twenty. Then I came to realize that she had been assigned to defend the costs awarded in the case--and that her position was a losing one.

This is one of those delicious ironies of being a young lawyer. One works hard on a case and finally gets a moment in the spotlight--on the only issue that is likely to be lost.

The issue was whether the cost of videotaping depositions should have been awarded to the winning defendant as costs. The trial court had awarded such costs. The Fifth Circuit has already issued a case, it turned out, that such awards are improper.

She argued valiantly that technology has changed, but the presiding judge courteously pointed out to her that one panel of the court cannot overrule another, absent an en banc hearing--i.e., one in which all the many judges of the Fifth Circuit convene for a kind of "supercourt" session. I liked the young lawyer's flair--she sought to orally ask for an en banc hearing. The judges were kind, and did not point out that her approach was procedurally not quite in sync.

Our appeal came up next, and I will skip over the discussion of its nuances or my performance, other than to mention I represented an appellee and that I love the "taste" of adrenaline in the afternoon. I do want to mention, though, that I like the Fifth Circuit Court of Appeals, as they give people who appear there free pens which say "Fifth Circuit Court of Appeals".

Thursday I went to the airport to catch my 2:40 p.m. flight to Los Angeles. When I left Garland, it was merely raining and above freezing, though there was a "snow advisory". When I got to the airport, 45 minutes to the west, snow was falling, and all the flights were canceled. With help from a lawyer in our office who made some calls, and the cooperation of a kind court in Los Angeles, we changed my court appearance on Friday to a telephone appearance. Then, after a few other business calls, I slogged home in snail-like traffic, until I could get off the clogged freeways and toll roads and onto side streets that got me home safely and without undue agony.

I mildly dislike telephonic appearances at hearings, so I am sorry I do not get to go to court in person. Also, I had set up a meeting (and now had to postpone) on Thursday evening with this cool fellow whose weblog I read, who shares my interest in public domain music and open source sharing of culture, and who has also written a lot of well-known webware for music play and sharing. We'll have to meet up another time.

On my way home, I stopped in a Dollar Store and bought more wild bird seed. I prefer to go to the Wild Bird Center for the highest quality seed, but I was out of seed. I find so often that the procrastination in search of the perfect can so often defeat doing the good, so I wanted to get my little sparrow friends seed, even if they must drive a Chevy rather than a Cadillac this time out.

I fell asleep before nine, and woke to find my dogs huddled together, as if it were winter.
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