The Litigator’s Notebook: A Behind the Scenes Look at Oral Arguments

Everyone knows that lawyers appear in court and talk to judges, but the portrayals on TV don’t usually give an accurate impression of what happens in court and why. IJ lawyers appear in court to argue for individual liberty, but they must also argue every complex and technical procedural issue that the government uses to try to derail our cases. That means that each of our cases has many oral arguments over time.

IJ litigates at every level—in federal court and in state court, in trial courts, mid-level appellate courts, and supreme courts. In just this past year, 26 IJ lawyers had 66 oral arguments, appearing in 36 cases, before 33 different courts.

Oral arguments can be full of surprises. Some judges ask questions the entire time, and the lawyer has to find a way to inject the most important points into the answers. When Dan Alban argued our case on behalf of hair braiders in Missouri in federal trial court, the hearing was nonstop questions for two hours, and it only stopped because a blizzard was about to hit. Other judges may ask no questions, and the lawyer must present everything they want to say without any idea about what parts of the argument are important to the judge. When Greg Reed explained why the court should not dismiss our challenge to food truck restrictions in Baltimore, he did so without a single question from the bench. In our case to break the monopoly on taxis in Little Rock, Arkansas, the judge ruled in favor of our entrepreneur client right after Justin Pearson had stopped speaking. In other cases, we have had to wait years for a decision.

Oral arguments in trial courts are probably the most like what people imagine lawyers do. Lawyers present evidence and make cogent arguments to convince the judge. Often, the judge is learning more about the case and coming to understand it along the way, so these arguments can have lots of questions from the judge about facts or law. The trial and accompanying oral argument in our case involving the monks who wanted to manufacture caskets in Louisiana was all about making sure the judge understood how the casket industry works, what caskets actually are, and how people go about buying caskets, both in Louisiana and outside of it. Once the judge understood that caskets really are just wooden boxes and that people frequently buy them on the internet, he also understood that all the reasons the state was giving about why people needed years of schooling to be allowed to sell caskets were total hogwash.

Appellate and state supreme court arguments, on the other hand, are less about convincing the judges (there are always at least three when you are on appeal) and more about shaping the opinion and possible dissents (the opinions that judges in the minority write when they disagree with the outcome). On appeal, all of the judges will have read lengthy legal papers and will be strongly inclined as to how they will rule. Oral argument, then, is about testing their theories, seeing if the facts and law fit with the particular way they hope to decide the case. The arguments also may reflect discussions that have been happening among the judges about particular issues, with each judge asking questions in a way that tries to convince the others. These kinds of arguments can be very challenging, because the lawyer must be prepared to respond to many different kinds of questions and to do so quickly.

Anthony Sanders’ most recent argument at the Minnesota Supreme Court illustrates the need for IJ lawyers to be prepared for anything. The case involves the meaning of the admonition in the Minnesota Constitution that warrants shall not be issued without probable cause.

The U.S. Constitution has a similar clause, but the U.S. Supreme Court has already said that the Constitution does not bar cities from conducting inspections of rental homes without the consent of landlord or tenant and without any evidence that anything is wrong with the home. We are asking the Minnesota Supreme Court to decide to interpret its own state Constitution differently. Anthony got out two whole sentences before the questioning began. One judge interrogated Anthony at length about the meaning and history of a particular semicolon in the text of the Minnesota Constitution. Two judges were interested in the policy implications of their decision—how would this affect the quality of rental housing? Plainly, the answers to these varied questions will figure heavily in discussions happening among the justices after the argument.

Sometimes, oral arguments are most memorable for a question asked of one’s opponent. During the 2005 Kelo vs. City of New London argument at the U.S. Supreme Court—argued perfectly by IJ President Scott Bullock—the real shocker came when Justice Sandra Day O’Connor asked the lawyer representing New London, “… the city thinks, well, if we had a Ritz-Carlton, we would have higher taxes. Now, is that okay?” Answer: “Yes.” That one question and answer then became the focus of Justice O’Connor’s dissent and the catalyst for the 44 state legislative reforms that swept the country after the decision. States wanted to make sure that in their state, the answer to the question would be a resounding “no.”

And at IJ, oral arguments are not just about the lawyers appearing in court. They are also about our clients and all the other people whose lives will be affected by the outcome. Sixty taxi drivers desperate to drive their own cabs piled into the courtroom to hear Bob McNamara argue for taxi freedom at the Colorado Supreme Court. Before our eminent domain argument at the Ohio Supreme Court, in which we successfully argued that the Ohio Constitution forbids eminent domain for economic development, hundreds of property owners from across the state attended a rally for property rights in front of the court. And in Arizona, a line of 100 parents and children hoping to get in to hear an Arizona Supreme Court argument about school vouchers cheered Tim Keller as he walked in to present our case.

IJ lawyers prepare intensely for oral argument. By the time we get there, we are ready for anything and ready to make whatever arguments we need—about the law, the facts or the process—to ensure greater liberty for our clients and everyone else.

IJ’s March 2017 Arguments

Let’s take a look at a typical month of arguments. Wesley Hottot told the 9th U.S. Circuit Court of Appeals that an entrepreneur should not have to go out of business in order to bring a lawsuit challenging a restriction on economic liberty. (Yes, amazingly, this is actually a question, and the trial court told our sedan entrepreneur that he could not challenge the state’s prohibition on sedan Groupons because he was still in business.) Dick Komer flew to Kalispell, Montana, to argue that a school choice program that parents can only use if their children attend non-religious schools violates the U.S. Constitution. In New Mexico, Rob Johnson argued that Albuquerque’s municipal civil forfeiture program violates the brand-new law passed by the state Legislature specifically to ban civil forfeiture. Wesley also had two different arguments asking San Diego state trial courts to return money that county prosecutors seized and held for more than a year, missing their deadline to file a forfeiture action. In our ongoing case challenging civil forfeiture in Philadelphia, Darpana Sheth argued against yet another round of motions to dismiss our case. And there has already been an argument in the Pottstown rental inspections case you read about earlier in this issue. Meagan Forbes convinced a Pennsylvania magistrate that, even though he was going to issue the search warrant, he should not let the city actually conduct the search until we have had time to present our full case.