Funny Oral Argument Moments

In my Persuasion class, we started with clips from oral arguments, and one was the famous "orthogonal" exchange, at 21:54 in Briscoe v. Virginia (2010)—instructive, but also a bit amusing.

A student asked if I could recommend some other funny exchanges, or perhaps exchanges that the participants thought were funning, whether from the Supreme Court or any other court. None came to my mind, but I thought I'd ask you folks, especially since I expect others would like to see some such examples. Please post suggestions in the comments, and please, if possible, include links to oral argument audio or video, if that's available.

Comments

[Noscitur a sociis]

There's this from the Bostock argument:

CHIEF JUSTICE ROBERTS: Thank you, counsel.
Counsel.
(Laughter.)
CHIEF JUSTICE ROBERTS: Sorry.

ORAL ARGUMENT OF JEFFREY M. HARRIS ON BEHALF OF THE RESPONDENT IN 17-1618 AND THE PETITIONERS IN 17-1623

MR. HARRIS: Mr. Chief Justice, and may it please the Court:
(Laughter.)
CHIEF JUSTICE ROBERTS: Touche.

Maybe you had to be there.

[bernard11]

What exactly is this about?

[Noscitur a sociis]

That excerpt didn't crack you up? I guess it's all in the delivery.

[Southron]

More than forty years ago I took a young pretty woman summer clerk to a federal court motion docket in “the Southern District [of Alabama]”. No clients there; just lawyers. A prominent and good admiralty lawyer named Hamp Uzzelle was giving a good but blustery argument about a motion. The District Judge, Hon. Brevard Hand [the third of the Hands in the federal judiciary, “unlearned Hand” as I once delicately called him in a light moment], took out an aerosol canister and sprayed Hamp, who looked bewildered, naturally enough, and said “your honor! What is that?” The judge held up the can which was labeled “Bullshit Repellant” The summer clerk ended up in another city.

[Josh R]

I'm Scalia.

[Josh R]

Let's try that again

[bernard11]

Somehow I didn't laugh uproariously at the linked exchange, though I am a bit dismayed that SCOTUS justices didn't understand what "orthogonal" meant in that context.

[gormadoc]

"Orthogonal" on context primarily comes from academia and shitty debate corners. They hadn't been in the first since before the proliferation. As for the second, well, that's where it finally reached their corner.

It's also a stupid pretension. There's nothing special about orthogonal sets that doesn't apply really well to other linear independent sets in the context. Not that it applies anyway. If you only consider two issues the only situation where they aren't linearly independent is where one is exactly a linear multiple of the other (or one doesn't exist), something that happens rarely, if ever, when we're discussing real world issues.

[LawTalkingGuy]

https://slate.com/news-and-politics/2011/03/is-john-roberts-the-funniest-supreme-court-justice-ever.amp

[Jimmy the Dane]

Not funny, but highly instructive of what not to do during oral arguments. Citizen United:

Alito: Could the government ban political books that contained express advocacy if an incorporated entity was involved?
Government: Yes

Next day relisted for constitutional question. Government ends up with huge loss on that instead of just statutory interpretation.

So maybe funny....in a sad way....

[y81]

There was an argument some time back, which I at least thought was funny, where it developed that no one on the Court knew what "romanette" meant. I don't know the case name, unfortunately.

[David Nieporent]

Discussed here, of course. Well, the VC's former home:

https://volokh.com/posts/1226638091.shtml

[Xenantaya]

Very strange. I'm in the category of people who assume that most attorneys both know what the word "romanette" means and use it to refer to lower case roman numerals. Surprised that, from EV's discussion, the word so rarely appears in dictionaries and written works. Hard to remember when I first learned the word.

[Noscitur a sociis]

Agreed: it wouldn't even have occurred to me that other lawyers might not. Makes me wonder how I learned it myself!

[Stephen Lathrop]

"But how would a term such as "Romanette" become so commonplace in some widely dispersed legal circles, to the point that its users assume that it's widely known, but so unknown to others within the same profession? Did it arise at some particular law school, or in some law firm, or among users of some particular drafting manuals, and thus seem common to people who have been exposed to it but unknown to others?"

I can suggest (uncertainly) an answer to that question. The date when the term begins to show up may be a clue. It was just about at that time that WYSIWYG digital fonts began (in just a few font families) to include optional purpose-designed small caps character sets. When you use those to set Roman numerals in lines of text, the caps presentation of the Roman numerals matches the height of the lower-case, instead of jutting above it.

To use purpose-designed small caps is a big improvement on the 2 other methods of setting Roman numerals among ordinary text—whether setting them as ordinary caps, or reducing the point size to create-makeshift-small caps to match the text height. The disadvantage of the former method is visually obvious, the disadvantage of the latter is that the stroke weights are too thin to match the other text.

Anyone who has to deal with Roman numerals, or other uses of small caps in text, would do well to look for a text font family which includes an optional purpose-designed small caps character set. Even today, they are not always easy to find.

Thus, the term may have begun in circulation among lawyers whose firms had been early adopters of those special font families, which included the purpose-designed small caps character sets. "Romanette," is not a term I had ever heard before today, however, and I have pretty good knowledge of typography, which I practiced professionally for years.

[Ridgeway]

I think you are overthinking it.

"Roman" and "romanette" are just handy ways to identify clauses when you are negotiating documents orally.

Another one we used to use was "in the hole", but for the life of me, I cannot remember exactly what that meant. I think it was when nest got so deep that you had to re-use indicators -- so if you had clause (A)(1)(a)(i)(A), that would be "cap A in the hole", but I am not positive.

This may also have been a New York thing. I still refer to bankers boxes as "Miracle Boxes" and accordion folders as "Redwelds" to the befuddlement of my interlocutors.

[Pettifogger]

Little "i" in the hole: (i); Little "v" in the hole: (v); etc. That's the only term I ever used.

[Noscitur a sociis]

That seems very unlikely to be the case, because the characters you're describing aren't romanettes. The term expressly refers as to Roman numerals set in lowercase.

[MatthewSlyfield]

If you are doing an outline/multi-level numbered list with roman numerals as level 1 romanettes as level 2, what do you do if you need a 3rd level or a 4th?

I've taken a preference to Arabic numeral with a . for each level
1
1.1
1.1.1
2
2.1
2.1.1

[Pettifogger]

Yes, I find such a system much preferable. If you open a 50-page contract in the middle, you can quickly find where you are organizationally. That is far more difficult with a traditional outline format.

[Noscitur a sociis]

That's what I use for argument sections in my briefs (although if you have to go below three levels anyway, that's not a good sign!) but it's not as well-adapted for statutes as conventionally formatted.

[MatthewSlyfield]

" but it's not as well-adapted for statutes as conventionally formatted."

Why exactly not? what advantage is there to the conventional formatting.

I'm not going to accept that on bare assertion.

[Burnett]

While clerking on the Third Circuit, my judge was on a panel with Judge Marion Trump Barry (President Trump's sister). The case involved the issue of whether the jury's punitive damages award was excessive in relation to it's award of compensatory damages. The lawyers were debating the proper test for evaluating whether punitive damages were unconstitutionality excessive under BMW v. Gore:

Judge Barry: I always thought it came down to the old Jesus Christ test.
Appellant's counsel: Excuse me?
Judge Barry: You know. Where you first look at the compensatory number, then look at the punitive number and say, "Jesus Christ!"

[Rev. Arthur L. Kirkland]

The judge replaced by Judge Barry once told me during argument to 'sit down and shut up.' (That is a precise quotation or very close.)

That guy -- a strident liberal -- was an unlikely hero to the right-wingers of the Volokh Conspiracy. The Volokh Conspirators should revere him because, similarly against type, he also provided a 25-year gravy train (appointment as special master) to a wingnut law professor.

[TwelveInchPianist]

Your honor, that issue dot the issue here is zero.

[Anna]

Oral arguments during my clerkship (2002), the U.S. Court of International Trade, Senior Judge Nicolas Tsoucalas (now deceased) presiding, two attorneys for two different plaintiffs (both were importers of shrimp negatively affected by the EU ban on importation of farmed shrimp fed hormone supplements) were challenging an antidumping decision by the Department of Commerce. First attorney (from Coudert Brothers) delivered an unusually animated speach, waiving not just hands but also arms, as if he were practicing the Dance of Little Swans from Tchaikovsky's Swan Lake
(it was particularly amusing since he was tall and corpulent), and accompanies his arm gestures with tiny hops taken, first, all the way to the right, then all the way to the left, then again to the right, then again to the left. He then sat down, drying his face with a handkerchief. Then, the second plaintiff's attorney (frail and about 4'10") made a dry, literally a minute-long argument while standing behind the plaintiffs' table being followed by an attorney for the Department of Commerce who also delivered a dry, albeit a lengthy argument, analogously standing behind his table.

Judge Tsoucalas: "Any response from the plaintiffs?"

The first attorney (still sitting down): "I yield my time."

Judge Tsoucalas: "Eghmm... What exactly does it mean?"

The first attorney (standing up and making a waiving gesture at the second plaintiff's attorney who is sitting two feet of him): "Ohhhh, he is so much shorter than I..."

Ten seconds of deathly silence follow while the second attorney is staring at the first one in a bit of a shock, while the first one is beaming at him, being pleased with the compliment he had just paid to the second attorney's brevity.

Judge Tsoucalas, to the second attorney: "Do you have anything to add?"

The second attorney, slightly standing up (which changes little since he's not tall): "No, all else is in my brief..."

Judge Tsoucalas, to the defense counsel: "Anything from the Commerce?"

The attorney for the Department of Commerce, without even bothering to get up: "No, Your Honor."

Judge Tsoucalas: "Well, it was entertaining... Also, the last time I have considered offering something so stupid as to speak."

A month later, the Judge issued my draft in favor of the plaintiffs, which began with, "Despite the Plaintiffs' counsel best efforts, the Court finds in favor of the Plaintiffs." A larger-then-life personality, the Judge issued the option as drafted (alas, unpublished, we rarely issued published). Coudert Brothers dissolved four years later. The large law firm where the second attorney was employed is still in business.

[Anna]

P.S. So sorry for the flood of typos: typing on my cell; well, hopefully, you get the gist of it.

[Rev. Arthur L. Kirkland]

" typing on my cell "

What are you in for?

[PurplePros]

After the indecipherable Romannette discussion and unfunny YHTBT references, Anna’s post is a treasure!

[Anna]

Another good one that comes to mind was reflected in a transcript that caused years of underlying litigation: I wasn't present during the argument but described it in my draft for Judge Renee Marie Bumb in Sierra, 2012 U.S. Dist. LEXIS 145378: search for the words "Plato" and "plateau."

[Ridgeway]

1. "Now doctor, isn't it true that when a person dies in his sleep, he doesn't know about it until the next morning?"

2. "The youngest son, the twenty-year old, how old is he?"

3. "Were you present when your picture was taken?"

4. Q: "Doctor, before you performed the autopsy, did you check for a pulse?"

A: "No."

Q: "Did you check for blood pressure?"

A: "No."

Q: "Did you check for breathing?"

A: "No."

Q: "So, then it is possible that the patient was alive when you began the autopsy?"

A: "No."

Q: "How can you be so sure, Doctor?"

A: "Because his brain was sitting on my desk in a jar."

Q: "But could the patient have still been alive nevertheless?"

A: "It is possible that he could have been alive and practicing law somewhere."

5. "Was it you or your younger brother who was killed in the war?"

6. "Did he kill you?"

7. "How far apart were the vehicles at the time of the collision?"

8. "You were there until the time you left, is that true?"

9. "How many times have you committed suicide?"

10. Q: "So the date of conception (of the baby) was August 8th?"

A: "Yes."

Q: "And what were you doing at that time?"

11. Q: "She had three children, right?"

A: "Yes."

Q: "How many were boys?"

A: "None."

Q: "Were there any girls?"

12. Q: "You say the stairs went down to the basement?"

A: "Yes."

Q: "And these stairs, did they go up also?"

13. Q: "Mr. Slatery, you went on a rather elaborate honeymoon, didn't you?"

A: "I went to Europe, Sir."

Q: "And you took your new wife?"

14. Q: "How was your first marriage terminated?"

A: "By death."

Q: "And by who's death was it terminated?"

15. Q: "Can you describe the individual?"

A: "He was about medium height and had a beard."

Q: "Was this a male, or a female?"

16. Q: "Is your appearance here this morning pursuant to a deposition notice which I sent to your attorney?"

A: "No, this is how I dress when I go to work."

17. Q: "Doctor, how many autopsies have you performed on dead people?"

A: "All my autopsies are performed on dead people."

18. Q: "All your responses must be oral, OK? What school did you go to?"

A: "Oral."

19. Q: "Do you recall the time that you examined the body?"

A: "The autopsy started around 8:30 p.m.."

Q: "And Mr. Dennington was dead at the time?"

A: "No, he was sitting on the table wondering why I was doing an autopsy."

20. Q: "You were not shot in the fracas?"

A: "No, I was shot midway between the fracas and the navel."

21. Q: "Are you qualified to give a urine sample?"

A: "I have been since early childhood."

[Noscitur a sociis]

Yes, my grandmother also forwarded that email to me 20 years ago.

[John F. Carr]

Your grandmother sounds young. I think I have it in a 30 year old book, and certainly was familiar with it more than 20 years ago.

[Ridgeway]

The one with "because his brain was in a jar on my desk" always makes me chuckle.

Heck, the Cleveland Browns "some asshole is signing your name to stupid letters" dates from 1974, and it still makes me laugh too.

[MatthewSlyfield]

Selected answers.

1. No
3. No.
7. 0.1 micrometers*
9. If I had committed suicide, I wouldn't be sitting here answering your stupid questions. Unless this is Hell.

[bernard11]

Even I, a non-lawyer, have heard these often.

Still, they are funny.

Another involved a witness to an altercation that occurred late at night:

Lawyer: So you say you saw the defendant pull out a knife?
Witness: Yes.
Lawyer: How far away were you from the defendant?
Witness: I was across the room.
Lawyer: How far can you see at night?
Witness ( to judge): Your honor, may I ask you a question?
Judge: Yes, go ahead.
Witness: How far away is the moon?

[J. Denny]

There was an audio only recording at law school we listened to for legal writing. I want to say it was the 9th circuit and it was being argued I want to say 1-2 weeks after SCOTUS had made appellants argument no longer valid. And the 9th circuit is interrupting the appellant's arguments to tell him, he has to distinguish the case from what SCOTUS has just decided and that the 9th circuit is not overriding SCOTUS. Finally the judges after to remind counsel he needs to sit at his table and not walk out of court after his argument. I want to say the case was about drug dogs and search of a vehicle.

[BrotherMovesOn]

Bob Loblaw's Law Blog
"Bob Loblaw no habla Espanol!"

[fafalone]

PD Andrew Weinstock: "You want to set it for docket sounding, set it for docket sounding. I'm not waiving in any case. This is an emergency created by the state,"

Brevard County Judge John Murphy: "You know if I had a rock I would throw it at you right now. Stop pissing me off. Just sit down. I'll take care of it. I don't need your help. Sit down."

PD: "You know what? I'm the public defender I have a right to be here and I have a right to stand and represent my clients."

Judge: "I said sit down. If you want to fight lets go out back and I'll just beat your ass."

PD:

Judge: "I'm not kidding. You wanna fuck with me?! DO YA??!"

PD: Alright!

Just in case anyone is not familiar with the Dishonorable Judge John C. Murphy's fist fight with a public defender.

Video: https://www.youtube.com/watch?v=MM6ogn68FGM
Unfortunately the actual fight is off screen.

Probably not the type of humor you're looking for but it's the hardest I've ever laughed at a court proceeding.

[fafalone]

I guess the commenting system didn't like my formatting the blank line for the PD I noted he stormed out in tags. There was another tag indicating the judge started punching him as he screaming 'I'm not kidding..'

[Jason Cavanaugh]

Surprised nobody's mentioned this classic:

https://www.youtube.com/watch?v=7vN_PEmeKb0

State of Georgia Vs. Denver Fenton Allen.

[Rev. Arthur L. Kirkland]

An oral argument of a sort (unrepresented party on the witness stand in Juvenile Division, attempting to prevent termination of parental rights, which was long overdue in my judgment as conflict counsel for the children):

Judge (exasperated by a struggling, disingenuous witness): 'Mr. Robertson, could you possibly be any more obtuse?'

Mr. Robertson (after a moment of contemplation): 'I can't be sure about that one, Your Honor . . . (suddenly brightening) but I am certainly willing to try, if you think that could help my case.'

Judge (to me): 'Do what you can. I know you need to make a record . . . but I am ready to rule.'

[blackoasis]

Funny but requires context.

Presiding Bishop v. Amos.

Holding: Title 7's exemption of religious organizations from discrimination claims is not an unconstitutional establishment of religion.

The Church of Jesus Christ of Latter-day Saints (then frequently referred to as the Mormon Church) fired a janitor after he lost a temple recommend, a marker of membership in good standing.
As relevant to the argument (but perhaps not to the facts of the case), the Church teaches its members not to smoke or drink.

Rex Lee, a Mormon, and Justice Scalia, who drank and smoked, knew each other well.

In argument, Lee was defending the line Congress had drawn, and mentioned the question of the Church being required to hire a Catholic.

Justice Scalia interrupted to ask:

QUESTION: Mr. Lee, I hope this is at least a nonsmoking, nondrinking Catholic?

MR. LEE: That is definitely — a nonsmoking, nondrinking Catholic; better in that respect than some other Catholics that I know.

Justice Scalia cracked up.

Transcript: https://www.supremecourt.gov/pdfs/transcripts/1986/86-179_86-401_03-31-1987.pdf

More backstory, and warnings about this kind of humor, here: https://www.actl.com/docs/default-source/default-document-library/actl_journal_80_spring_2016.pdf?sfvrsn=2. I was one of the (then) young lawyers Rex Lee warned against "trying this at home."