The United States Court of Appeals for the Seventh Circuit heard arguments this week in a case involving the University of Notre Dame and the issue of contraceptive coverage. News reports painted a picture where the three-judge panel (Judges Posner, Hamilton, and Flaum) were skeptical of the University’s arguments. Some of them even went so far as to note that Judge Posner repeatedly told counsel for the University that he couldn’t understand the University’s argument.
What many of the news reports missed, however, was the fact that the University’s attorney, Matthew Kairis of Jones Day, violated some of the most basic principles of any oral argument presented to a court. Kairis wouldn’t answer simple yes-or-no questions, leading Judge Posner to threaten at one point that he wouldn’t permit Kairis to continue his argument if he wouldn’t answer a simple question. Kairis repeatedly talked over the judges, leading Judge Posner to tell him to stop interrupting. Right out of the box, Kairis botched a simple question from the court: what relief do you want? At one point, Judge Posner said to Kairis, “Stop babbling.” Ouch.
Most lawyers know that Jones Day is a big (as in really big) law firm that hires only the brightest of the bright. Kairis’s credentials are impressive (Harvard Law), and he’s handled a lot of high profile cases. That’s why it is so surprising that Kairis didn’t conduct a better argument. Indeed, at one point Judge Posner was so frustrated with the interruptions that he made a remark suggesting that it was inconceivable that a lawyer who had done arguments in other courts didn’t know that it’s a cardinal sin to interrupt the judge. (Speaking of sins, Judge Posner stumped Kairis with the question, “Is use of contraceptives a mortal or venial sin?” After Kairis said he didn’t know, Posner said, “Well you should know. It’s a mortal sin,” and then went on to explain why Catholic theology labels it a mortal sin.)
Now, in all fairness, Judge Posner can be one of the tougher questioners from the bench. His questions can come rapid fire, and he can get testy. Still, any law student who has done a moot court argument in school learns that you don’t interrupt the court, talk while the court is talking, or irritate the judge by trying to sidestep a direct question. (Posner admonished Kairis twice, “Don’t fence with me,” after asking a yes-or-no question.) Perhaps Kairis was having a bad day, had taken some cold medicines, knew he had a weak argument and was doing the best he could, who knows. Still, if I was Notre Dame’s general counsel, I would not have been happy. Regardless, every lawyer has had an experience like Kairis had, and you can’t help but feel sympathy for him.
The news media, of course, interpreted the tough questions from the bench as a sign that Notre Dame’s case was in trouble. Experienced appellate lawyers (and even those of us who handle the occasional appeal) know that you can’t predict the outcome of a case based on oral arguments. Indeed, I once argued before Judge Posner at the Seventh Circuit. I thought he (and the rest of the bench) beat up on my opponent’s position much, much more than they did mine. When the opinion was handed down, I lost (in an opinion written by Judge Posner).
If you’d like to listen to the 90-minute oral argument, the Seventh Circuit has it posted online. The direct link to the mp3 file is here.