This morning was a fairly stressful event. I had an appearance before the Oregon Court of Appeals. Most people don't really know much about an appellate practice. When most people think of being in the courtroom they usually think of Perry Mason or Matlock cross examining witnesses into submission.

But being in front of an appellate court, however, is a much different experience. Essentially, you are the one being cross examined by at least three, and as many as nine, judges. There are no witnesses, just you and the other attorney. Most of your argument is in your brief, which you probably submitted six months earlier (if you're lucky, sometimes it's longer). You have the possibility of swaying the judges your direction. You run the risk of completely screwing up your case and losing. Badly. Because it's so critical you prepare the heck out of the case for days before hand. All for 15 minutes worth of talking.

Some people have a script that they've prepared. Some people have talking points, or an outline. The trouble is, you never know how it's going to go or whether you'll have time to actually spit out anything you want to get to. If it's a "hot court" you can get an immediate flurry of questions right after you introduce yourself. In some ways, that's a good thing, because you don't have to worry about covering specific points, you're just dealing with the issues that the court wants to deal with. If it's a "cold court" you can get no questions. I always consider this to be a bad thing, because it means that either the court has already made up it's collective mind and they want you out of their way, or you're so far away from where you should be that they don't know how (or care to) bring you back to their reality.

This morning, after rising at my customary 4 a.m. and trekking down to my office, I continued the preparations I had started last night. I laid out my argument. I anticipated questions from the court and crafted responses. I made sure my notebook had the statutes and the case law in question easily available at the flip of a tabbed page. I mentally ran through my comments, complete with cues for returning myself to my comments if the court side tracked me with their questions. Then I drove the 5 minutes to the Supreme Court building and, along with my opposing counsel, waited my turn before the court.

It was "law clerk day", which meant that the DOJ clerks were over from across the street watching the proceedings, so there was a considerably audience (for an appeal, that is). There were four criminal cases in front of ours, which I'm sure were quite important and which I don't remember. Finally our case was called.

My opposing counsel went first because he represented the party requesting the appeal. He introduced himself to the court (there's a specific protocol for doing this) and told the court what he wanted (reverse the trial court decision because we think it was wrong). Then Judge Edmonds pounced.

Which judge it was is fairly important here, so I'll invest a little side note. I always make it a point to find out which judges are on your panel so that you can tailor your argument to any prior decisions they may have made on related issues in the past. About two years ago there was a case which talked about exactly the same portion of law that we were addressing. In that decision, Judge Edmonds wrote a fairly spirited defense. I believe that both the majority opinion and the dissent were in my favor, but the other attorney clearly felt that the decision was going to help his case. What he didn't realize was that Judge Edmonds had written the dissent. That is, he didn't realize that until about 15 minutes before we were called when he was reading the case and glanced at the dissent. He leaned over and whispered, "Did you know Judge Edmonds wrote the dissent in Medill?" I slyly glanced at him from the corner of my eye and said, "Why, yes. Yes, I did." He looked somewhat uncomfortable.

So when Judge Edmonds leaned over the bench and said, "Your client started this by filing something in Texas saying that Father abused the children in Oregon, right?" I knew that my colleague was in trouble.
"Yes", he replied.
"So all of these things happened in Oregon?"
"Yes"
"So then tell me again why you think that somehow Oregon doesn't have jurisdiction over this case and Texas does?"

This continued for all of his 10 minutes and into the time he'd reserved for rebuttal. I rose and took the podium. I abandoned my prepared comments and ventured forth into the unknown with my hastily jotted notes of the last 10 minutes. After a minute or two it was apparent that the judges didn't want to play. There were essentially no questions even when I touched a hot button or two. They half-heartedly engaged me on a couple of points, but nothing substantive. I took my seat after about 4 minutes when Judge Edmonds looked over the top of his glasses and said, "Is there anything else you'd like the court to consider, Mr. Carlson?" I sat down at that point.

So now we wait. Maybe for 30days, potentially for a year and a half. You never can tell. These things take as long as the Court of Appeals wants them to take and you can't very well rush them. The Court could write a 100 page diatribe on why this should go to Texas and overturn the trial judge. The court could issue an "AWOP" and "Affirmed Without Opinion" the case, which means they send out one page of paper that consists primarily of the caption. In the mean time, the remainder of this ten year old case gradually moves it's way through the system. One turgidly slow step at a time. I'm reasonably comfortable with the thought that the decision will go our way, but you never can tell for sure. I'll let you know.

On this day at foldedspace.org

2003 — Husbanding Points   In which fall approaches. In which I find a precious ring. In which I am a fan of movie musicals. In which I build a stockpile of Husbanding Points.

— Site Tweaks   In which I do a bit of site redesign.

2002 — Social Butterfly   For the past two weeks I've been as busy as a busy little bee. flitted from one social engagement to another with barely a chance to breathe. I've had fun.