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Advice From the Bench

by Justice William H. Lamb

Winter 2005, Vol. 67, No. 4

I was honored in 2003 to be selected to fill a vacancy on the highest bench in the Commonwealth. During that whirlwind year, I took an active part in court business, writing fourteen majority opinions, nine concurring opinions and five dissents. And I was involved in six times as many cases. Because of prior experience with zoning issues, I wrote four opinions dealing with land use.

Other opinions addressed workers’ compensation, capital murder, and common law pertaining to the nomination and appointment of constables in the Commonwealth. It was a fantastic experience. Now that I’m back on the attorney side, I thought I’d offer a few words of advice to lawyers who argue before the Pennsylvania Supreme Court, or any appellate court.

Listen Up!
The admonition to keep your ears open while talking is not as contradictory as it seems. The appellate court is a unique theater, and you need to be aware of the roles of the other players in order to know how to play your part.

Some lawyers just don’t get it. The justices are thoroughly prepared for argument and it is not necessary to go through the facts of the case. If the chief justice says, “We understand your point,” go on to your next one. The argument sessions are used to clarify issues and to define positions and the limitations of those positions. When questioned by a judge, lawyers should listen to and talk about what is on the court’s mind, not what is on the lawyer’s mind. Notwithstanding this guidance, some lawyers will persist in going through their script and ignoring cues from the bench, simply because it’s how they prepared for the argument.

Make an Impression
During argument sessions, we heard between six and twelve cases a day. With a volume this large, lawyers not only needed to present their cases well; they needed to make an impression. It may sound silly, but it’s true. You must work to distinguish your case from other cases, so the justices will better remember what you argued. Come up with an approach or an idea that will make your case stand out. I once argued a case by saying, “This case is not about X, it’s just about money.” This may have been jarring, but I wanted the justices to remember my case. I thought my characterization would accomplish that objective.

Just the Facts
Another word of advice: Don’t read verbatim long passages of precedent-setting cases. There is nothing more tedious. By all means, cite and discuss a case, but refrain from reiterating it word for word.

Similarly, even though lawyers should not recite the facts of their cases, they need to be familiar with the facts and the record. Nothing bothers a justice more than a lawyer who refers to a fact but can’t pinpoint in the record where that fact is established. The lawyer doesn’t have to know the specific page, but should know whether the fact was mentioned in a lower court opinion or stated in Miss Johnson’s testimony.

Honorable Mention
And speaking of Miss Johnson, while it may sound obvious, be sure to correctly address justices. There are nameplates for your reference. Don’t address Mr. Justice Jones when Mr. Justice Smith asks the question.

As in any profession, details count and they make an impression. Someone needs to proofread briefs. Misspelled words, grammatical mistakes and improper citations might seem minor, but they detract from the quality of what a lawyer is trying to do. Sloppiness is not limited to small law firms. I saw several instances where major firms made mistakes because they did not proofread briefs.

Mind Your Manners
Some lawyers will actually argue with a justice in a combative way. There is nothing wrong with an intellectual exchange, but occasionally lawyers will get offensive. Talk about a quick way to lose a case—that’s it.

Be Selective
Another misstep inexperienced lawyers often take is to try to cram a gallon’s worth of argument into a pint-size container. You have to be selective in what you argue. You want to make your best oral argument. You are allowed to refer to your brief and indicate that while you are raising five points before the court, you would like to argue points one, two and three here; and reserve points four and five. There is nothing wrong with that.

Inquiring Minds Want to Know
Ninety percent of cases argued before the Supreme Court are selected because the justices want to hear the case. They take the case because a conflict exists in the lower courts; an important and compelling issue is to be decided; or a new area of the law is at issue on which the Supreme Court has not written. The point is, the court took the case for a reason, and the attorney should be aware of that reason.

During my tenure on the bench, oral arguments made a profound difference in about twenty percent of cases. When we conducted our reviews, we would have forty cases on the argument list. I would have bench memos prepared, and we would have a minimum of a two-day chambers preparation session before oral arguments to review the cases. In about eighty percent of the cases my mind was nearly made up, but in the other twenty percent I felt compelled to hear the oral argument because I wasn’t sure. I’d have a free-flowing discussion in my chambers with my five clerks about the cases. Sometimes the clerks were split in their opinions. And there were times I would come back after an oral argument and say I’d changed my mind.

Stand Your Ground
Certainly, judges are not always right in positions they convey, and they, too, must be flexible during oral argument. As an attorney, I once argued a case involving the MCare Fund (formerly known as the CAT Fund). A trial judge wanted a representative of the fund to be available every day for a seven-week trial. The representative (my client) refused and was being held in contempt of court. On appeal, I argued that it made no sense for the court to order my client to be in court for seven weeks. I was pointedly asked by a member of the appellate panel if I was saying that the trial judge didn’t have the power to order my client to be there on the first day of trial to discuss settlement. I respectfully replied that of course the trial court had that power, but that asking my client to sit through seven weeks of a trial was an unreasonable request. The appellate judge accepted this distinction, as ultimately was reflected in the opinion. Judges often ask questions to test the limits of an argument.

These guidelines are basic and, in truth, the justices are rooting for attorneys to do an effective job. That justices want to show that they know more than the attorneys do is a misconception. It has been my impression that there was a genuine attempt to understand the lawyer’s position during argument and to clarify that position during an argument.

See you in court. Good luck.