"Five Oral Argument Tips — For Judges"

Howard Bashman has reprinted an interesting article from the October 2008 issue of The Federal Lawyer called "Five Oral Argument Tips — For Judges." The article provides the perspective of United States District Judge Michael W. Mosman of the District of Oregon, who sat by designation for a while on the Ninth Circuit. Judge Mosman's first tip reminds appellate judges that "respect is a two-way street" and that no one is immune to typos:

It is also fair to add that much of the disrespect that flows from judges to lawyers comes from a poor understanding of what the practice of law is like. In a real life practice, perfection can be an elusive goal and the pressure to get the job completed can be tremendous. While this is no excuse for mediocrity, it does put minor errors in context. It is probably no accident that the former practitioners on the bench tend to be those who seldom show the lawyers disrespect.

The article concludes:

As between the judge and the lawyer, oral argument is not adversarial. It can be tense; there can be a lot at stake; there are pitfalls for the lawyer that can do harm to the case. But fundamentally it is a form of partnership. This partnership works better if judges show respect to the lawyers and have enough humility to be critical of their own performance.

That's it for this week. Have a great Thanksgiving, everyone! [Cross-posted to The Appellate Practitioner.]