Federal appellate arguments as sporting events

Article III Groupie's excellent idea about using reality TV models to reform the law clerk hiring process has reminded me of an idea I've had for a while. There's been a debate about whether federal courts should televise their proceedings. The obvious rejoinder is to point to the debacle known as the O.J. Simpson trial, but that was at the trial level. At the appellate level, there's no worry about nine-month long proceedings, no grandstanding for the jury, etc.

Think about it: an oral argument lasting 20 minutes to an hour would make a perfect "sporting" event. (Hey, if ESPN televises the World Series of Poker, why not?) You have the competitors -- the fearsome appellate litigators, about whom we can film those mini-featurettes that NBC deluged us with during the Olympics. Even better if they have a history of arguing against each other. [Cue cheesy Survivor "Eye of the Tiger" music. . . .]

You could have law professors, appellate litigators, law clerks, or even A3G herself offering color commentary. For example, when an advocate devotes too much time on a loser argument instead of conceding and moving on to a stronger point, the color person could chime in with something along the lines of, "When you're being paid $450 an hour, you can't make rookie mistakes like that! Punt and move on!"

Of course, most contests require referees -- and here the process is set up perfectly: the judges are the referees. I'm thinking that the presiding judge could serve as a sort of an umpire -- we could even give the presiding judge a yellow flag like the ones the football refs carry to signal penalties. When an oral advocate commits a foul, the presiding judge could toss the flag at the lawyer and call a penalty. The penalties would result in loss of argument time. Here are some I have in mind:

Personal Foul -- Unnecessary Roughness: Personal attacks on opposing counsel cost five minutes of argument time.

Illegal Procedure: Reliance upon facts outside the appellate record cost two minutes of argument time.

Delay of Argument: Too many "uhs," "ums," fumbling through the record to respond to a question, or other attempts to evade tough questions cost two minutes of argument time.

Encroachment: Straying from the lectern and coming too close to the appellate bench -- a big No-No, loss of ten minutes of argument time.

Illegal Shift: Shifting one's legal position from the brief to a new one at the oral argument costs ten minutes of argument time.

Illegal Holding: Misstating the holding of controlling authority costs five minutes of argument time; of persuasive authority, two minutes.

Of course, there would be no instant replay, but I'm sure the TV crew would show replays of the offending behavior.

What would make for even better TV would be if the advocate -- or better yet, the client -- would come storming from the pews to protest a penalty. (I'm mixing baseball and football here, but bear with me.) Maybe the advocate or client would toss a sheaf of papers, briefs, etc. toward the bench. Or throw some chairs Bobby Knight-style. A really enterprising client would bring in some dirt to dump on the courtroom floor and kick it all over (especially toward opposing counsel). Naturally, the presiding judge would be able to eject the client or advocate -- and to have the Court Security Officers (i.e., the bailiffs) haul the client or advocate out. There would even be a clubhouse for the person to retire to (only we call them MDC or MCC).

The biggest barrier to implementing this proposal, of course, is getting federal circuit judges to agree. On the one hand, they get more ways to control and torment attorneys, which would seem to be a desirable thing. On the other hand, they may fear that, like referees, they'll be seen as bland and nondescript. Fear not! The most colorful referees stand out, such as American League baseball umpire Ron Luciano (who used to point his finger at baserunners and "shoot them" as he called them out).

Meanwhile, the benefits to Americans would be more interest in and appreciation of the workings of our federal courts.

(Note: in case any future Senate Judiciary Committee staff members find some cache of this post in the year 2020 or something, I'm just kidding.)

Comments

[g]

You could also combine the judging element of American Idol into it. After each side's oral argument, you could have the judges ripping into the lawyers. For example, "if I'm being honest, that was absolutely dreadful. I could hear the same legal arguments at any fourth-tier law school. You should sue your law school, but please hire another lawyer to do that since you're clearly unfit to practice law"

[jc]

so as a law clerk, am i akin to a "line judge" in football? do i get to throw flags and then go confer with my judge?

[Tung Yin]

jc wrote: so as a law clerk, am i akin to a "line judge" in football? do i get to throw flags and then go confer with my judge?

My first thought was, let's not get carried away. However, upon more reflection, I'd say it's between you and your judge. If your judge wants you to have flag throwing power, well, you should have it. It would be interesting whether this would make clerkships with such power-sharing judges more desirable.