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.