January 27, 2010
Judge Lifland's Schedules For Oral Argument On February 2nd.
In looking at the schedules approved by Judge Lifland for the oral argument on February 2nd, one fact sticks out like a sore thumb to a former litigator. The Malefactors Three (TMT) have been granted up to 130 minutes (or 2 hours and 10 minutes) for argument and rebuttal, while our side has been granted only 80 minutes to argue (or 1 hour and 20 minutes). The other side has thus received 61 percent more time than our side, with 60 of their 130 minutes, or nearly one-half their time, available for rebuttal.
In my 47 years at the bar -- as a litigator, a professor, or both simultaneously -- I have never heard of this kind of discrepancy in allotted time and have never heard of granting such a disproportionate amount of time -- 60 of the TMT's 130 minutes -- for rebuttal. The more normal arrangement is for the opening side, for example, to receive 30 minutes, from which it will typically reserve, say, 5 minutes for rebuttal, while its opponents also receive 30 minutes, which they must use in a single block. Or the opening side may receive 60 minutes, of which it will reserve five or ten minutes for rebuttal, while its opponents receive 60 minutes to be used in a single block. Whatever the particular arrangements, I have never before seen one side formally allotted, in advance, up to 61 percent more time than the other, or such a high percentage of its total time for rebuttal. (In terms of minutes, as opposed to percentages, the other side is getting what could be considered close to almost as many minutes just for rebuttal (60 minutes), as our side is getting for its whole argument (80 minutes).) This all is, frankly, amazing.
I have no idea what this scheduling means, if anything. Many will say it shows (yet again) that the Judge favors the other side, which to date appears to have continuously gotten whatever it wants from him while our side has been treated oppositely. Or, optimists may speculate -- many would say Pollyannaists may speculate -- that perhaps it means the Judge realizes the other side's arguments are not very good and he wants to give them full rein to develop their points so they cannot claim to have been short shrifted if they lose. (I would belong to the group which considers this possibility to be Pollyannaish, not just optimistic.) Or, perhaps it is just how the results of a judicial demand for schedules to be submitted and approved in advance "fell out" so to speak.
I know almost nothing about the judicial demand for schedules -- how it arose, what occurred in pursuit of it, etc. All that I know -- and it is precious little -- is that the judge made such a demand, met with certain lawyers to discuss it, I'm told (though I don't know why he picked certain lawyers and omitted others, nor do I know whether he met with both sides at the same time or each side separately), and, I've also been told, he rejected our side's first submitted schedule. It thus seems dubious that the imbalance in allotted time arose without judicial knowledge of imbalance, and certainly it subsequently was judicially approved with judicial knowledge of imbalance.
I do know for certain, however, that to have extensive rebuttal time is a lawyer's dream, because it gives one ample time to try to extensively knock down the points made by the previous side and to insure that the judge's last perceptions are favorable to your side. This is thought to be worth gold. Indeed, here is a true story that illustrates the point: The story is about brief writing, where the principle I'm discussing also holds true, just as it is true at oral arguments.
In the 1980s and 1990s I was involved in a huge antitrust case in Philadelphia in which the eventual verdict exceeded 700 million dollars, which in those days was real money, not a mere bagatelle to be casually tossed to AIG or Goldman Sachs. There were several parties on the other side. When all or only the particular relevant party on the other side was the moving party and thus wrote the opening brief(s), the lawyer for the relevant party on the other side used to write a fairly short opening brief. (The opening briefs are the written equivalent of the opening arguments at an oral argument.) Then our side would fully respond to the opening brief(s) -- this was our only opportunity to brief the issue. (Response briefs are the written equivalent of the response side of oral arguments.) Then this particular lawyer, in his reply brief -- a reply brief being the written equivalent of a rebuttal at an oral argument -- would file a major brief giving his full position chapter and verse, discussing arguments omitted from his opening briefs so that we had had no chance to respond to them (which was an especially pernicious trick when his was the only opening brief), and also assailing our own briefs. In this way the particular lawyer regularly attempted the wholly inappropriate dirty trick of trying to handicap us, in writing our responses, by saying little in his opening brief and then delivering his full arsenal after we no longer had a chance to respond in writing.
Now, I am not saying the TMT are going to pull the same kind of dirty trick. I frankly doubt it since they have put in for and received 70 minutes for their opening arguments. But my true story illustrates that having an extensive opportunity for rebuttal is regarded as extremely valuable. And it makes clear why courts, to avoid claims of unfairness and prejudice, do not permit the kind of imbalance in allotted time at oral argument, and the huge percentage of time given to rebuttal, as Judge Lifland has awarded here. Speaking frankly, I am shocked.
