So, as said, appellate oral arguments are hard to do, and the oral argument here was, I think, particularly difficult to do. And I do wish to say that I think Helen Chaitman did an excellent job, a very good job.
Let me also say that this essay has been divided into two parts. There are several reasons. One is that it has taken a very long time to write, and will take me considerable additional time to finish, has proven to be godawful long in terms of numbers of words, and I have not been intelligent or perceptive enough to figure out in advance how to reduce it to a shorter string of essences, so to speak, without using organizational techniques that would themselves require extensive time to employ. Also, I now have to largely turn my attention to some other important, non Madoff matters for four or five days. So, in order to begin putting the essay's views into the public forum for Madoff victims who might wish to know those views, I have divided the essay into two parts, am posting the first part now, and will finish and post the second part, I hope, in about ten days or two weeks from now. The first part deals with some general matters plus the oral arguments of our first two advocates. The second part will deal with the arguments of the three advocates who opposed us, plus the rebuttal argument of Helen Chaitman.
* * * * *
Let me cover some of the pre-oral argument maneuvering, insofar as I know it, before turning to the argument itself. (This essay, as you can see, is discursive rather than the tightly written, all-excrescences-removed work that a good brief should be. Once, about a year ago, a lawyer on our side called me on the phone to lambaste me for opposing a direct appeal to the Second Circuit. This person told me I was a lousy lawyer, incompetent, and merely an academic because I favor a discursive style when writing essays. The person was so rude that I have not spoken to him or her since, and don't intend to in the future. And let us hope that we win in the Second Circuit, thus proving wrong the views I held about a direct appeal.) My knowledge of the pre-argument maneuvering is necessarily limited because I am not part of the relatively small group of New York City lawyers who seem to be in charge. Indeed, not being a part of that group -- two of whom, including the one who later called to tell me I am an incompetent, made clear on an early phone call that my presence was not desired -- I know little in advance about anything. Right now, for example, some among the NYC group are dealing with the Trustee in regard to which issues should be briefed as part of the so-called "omnibus briefing" of important issues this Spring, and I for one, and I know that some others too, are completely in the dark as to what is going on.
With regard to the pre-argument maneuvering about which my knowledge is limited, I have heard that the NYC lawyers exchanged memos, had conference calls, and had one or two moot courts, though I don't really know how the moot courts were handled except that I've heard that in the last one all the non-arguing lawyers were collectively the judges (which, if true, is, in my experience, not the way to hold a moot court). During the period February 25-March 1, I did, however, send the lawyers' group, in part at the invitation of one of its members, three memoranda of possible questions from the bench and possible answers, and one memo stressing the need for a short, persuasive opening argument of two or three minutes that would quickly tell the Court what our main points are before the Court got into the barrage of questions which many of you saw in person or read on the transcript. I included an example of such an opening argument. Though there is of course no guarantee, if you tell a Court at the beginning of your argument that you will begin with a brief listing of your points, the judges will sometimes let you do this because they know you will be brief (they will hold you to brevity), and in this way your major ideas will be set before the Court before the guns start firing at you. Such a short introductory opening argument briefly stating our major points was not attempted here.
Nonetheless, to my surprise, one of the group of NYC lawyers who are in charge told Dave Bernfeld that material I sent had been helpful. That was nice of him. But I do not really think my memos did much good or proved terribly helpful. The transcript shows that a large number of the points I stressed -- very important points, I think, which could be made in answer to questions if the argument proved a barrage, as it did -- received little or no mention. The points included that there were extensive statements of legislative intent in our favor, and the specific items of legislative intent that the statements established; that some of the leading legislators of the day -- not back benchers -- delivered these statements; that CICO has almost never been used before in nearly 320 SIPC cases; that the use of CICO utterly destroys Congress' vigorously and repeatedly stated intent that victims receive money or securities promptly from SIPC because CICO necessitates years-long forensic accounting to establish whether a customer can receive anything from SIPC; that there are well established financial techniques which limit the extent to which a Bernie Madoff can just make things up; that there should be discovery into why Picard and SIPC chose to use CICO; and that while SIPC and the Trustee claim they are being fair, the truth, as SIPC's letters to Congress reveal, is that almost all the money Picard is clawing back is going to the fabulously wealthy (at least in the short run) while the now newly impoverished will get little or nothing.
I should also say that the very first answer given to the Court by our advocates surprised me greatly. At the very beginning of the argument Judge Jacobs asked whether our three successive advocates were "going to divvy up issues in any way?" (Tr. 3.) The answer was "We're not really, Your Honor." (Tr. 3.) I have worked with advocates on lots of appellate cases in which more than one lawyer argued for my side: But I never have seen an instance where there was more than one lawyer arguing on a side and the lawyers did not divide up the argument by issues. The reasons for such division are obvious. With such division a lawyer can focus deeply on the issues he/she is responsible for, there will be less duplication of argument and therefore a larger number of important points can be covered, etc. Yet our side did not divide up the issues. (Perhaps I should add that an experienced appellate lawyer on our faculty was thunderstruck when told that the argument was not divided by issues.)
How did this occur? Well, I really don't know but believe I can likely make a good guess. With regard to rebuttal, you can't divide up the issues in advance because you cannot know in advance what points will be crying out for rebuttal when your rebutter rises to rebut. To select Helen Chaitman for rebuttal was in my view a good idea because, I would bet, she probably knows more about the case than anyone else. She would likely be best able of anyone to think of the best rebuttal points on many topics. And, proving the point, she did a good job on rebuttal.
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