By J. DeVoy
Oral arguments are strange things. With enough practice, they can be sharp and flawless tools of advocacy, but trying to use them too soon can lead to disaster. I had a case of the latter during a moot court practice last year. Eager to enhance my argument, I tried to go completely without notes for my second or third practice. I also had the added challenge of appearing before my coach and two faculty practice judges.
I brought my legal pad just to be safe. I had no intention of needing or using it, but thought that having a hedge against total failure would be a good idea. It was an exciting argument about designated protest areas, personal preferences being doled out by public employees, and secondary effects of government actions that restricted free speech.
My teammate and I were representing the Petitioner, the local government that promulgated this rule. He went first. I went over my argument in my head as he spoke, trying to pay attention to the questions the judges were asking. He, too, was trying to practice without notes for the first time.
Thirteen minutes elapsed and it was my turn to shine. I took my pad up with me to the podium, addressed the court and began. It went well for about a minute until I started arguing a different government speech issue regarding employees and political statements. Whoops.
I caught myself as quickly as I could and turned to my notepad. The first page had nothing to do with my argument. “No big deal,” I thought, flipping to the second page, showing no signs that anything was amiss. Still nothing. Another flip of the page, this time faster, and still no argument. I did this again and again, hoping against hope to see the word “Petitioner” emblazoned on the top of any of them. I brought the wrong pad. Instead of my legal pad with notes for moot court, I had brought my “idea” pad, which contained so many things utterly useless for my argument. The beginnings of a screenplay about a Ph.D. student who has his life ruined after discovering and trying to publicize his findings that IQ is 100% genetic. Ideas for underserved ice cream flavors, such as “Pomegranate Mango” and “Gin.” People on whom I sought revenge for minor slights both real and imagined. An analysis on the relative merits of putting Rachel Starr on the front of my annual winter holiday card to family members and whether doing so would constitute fair use. Not a word about secondary effects.
Inspiration needed to come, and fast, as the time window for looking deliberately contemplative had long expired. I hoped to summon the advocacy skills of Johnny Cochran, Andrew Rima or Marc Randazza. All that came to mind were parole hearings, specifically John Lovitz’s in Trapped in Paradise and Charles Manson’s from 1992. I had no option but to work with what I had.
“Counsel, how are the secondary effects of public safety at all relevant in this case and not an ad hoc justification for the City’s actions?” Asked the judge.
“Well, people are like dinosaurs on the ground, constantly living in fear of the Pterodactyl, which could fly. It could fly and rain death and pain upon them at any time because other dinosaurs could not, and only the most heavily armored, like the Stegosaurus, could even fathom protecting themselves. But the public, like the dinosaurs that had brains the size of chestnuts, cannot fathom anything, and it is up to government to do the thinking. Here, the city wanted to reverse the equities and make the people like the Pterodactyl, taking wing and flying high, high above their collective problems, namely the inevitable bloody clash of protesters and counter-protesters.” What was I even saying?
“Counselor…what?” She seemed genuinely confused. But, I might have been on the way to dazzling her beyond understanding what was happening.
“We reach an impasse here, your honor, moving pawn four, er, bishop four to seven. All the oceans’ contents, if they were the city’s tears, they would not be enough to express the remorse of the city in taking this action. But it was necessary because public safety in the face of potential rioting is part and parcel of other restrictions this court has affirmed for the sake of public welfare under the secondary effects doctrine, including petty crime and prostitution. Surely this is as valid, affecting the welfare of the person, as constitutionally permissible restrictions designed to maintain property values based solely on the secondary effects of otherwise permissible speech.” I was beginning to believe myself and even find my legs. Alas, it was not to be.
“Bishop…Chess? Dinosaurs? What are you talking about, how does this relate to the regulation of a protest on public property?” She just wasn’t letting up. Not that I was giving her any reason to, but this was disheartening.
I decided to stun the bench in a final desperate effort. “Your Honor, this is about decency, basic human decency, and the right of the state to enforce it when it can limit violence even if it means limiting speech. This is about what’s right!” With that, I made a dramatic hand motion that flung my pad at the bench, where it struck with a thud. The tribunal clearly was rattled. To this day, I can only imagine the mortified look on my teammate’s face as it happened.
“Counselor, what is the meaning of this?” The lead judge asked, barely below a scream. “WHAT IS THIS?!”
Defeated, I paused to muster all the aloofness I was capable of and said, “the Aristocrats.”
H/T: Derangement and Description, for giving me an idea I never would have thought of otherwise.
P.S. – None of this actually happened.