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Blood and Sweat
Okay...... so maybe there wasn't any blood, but there was a lot of sweat. On my way to the 9th Circuit Court of Appeals, located downtown, I was in my suit. It was HOT! and while on my way I sweated in the car. Luckily for me, I didn't stink from it. I was thinking maybe I should've worn different clothes to the court room and then changed my clothes somewhere but I think it would have been awkward to be carrying a garment bag. Oh well.
Prior to that though... when I was getting read to drive downtown, the car wouldn't start. I noticed that I left the lights on. Lucky for me, I was able to get it jump started by Jennifer's brother.
Oral arguments were very interesting. It was actually quite awesome and as nerdy and dorky as it sounds, it was rush to be making oral arguments in front of Federal District Court Judge David Ezra and Judge Leslie Kobayashi. The third panelist, James Koshiba is an attorney and doesn't seem to have ever sat in a judges chair. As the appellant (the party who asked for the appeal, that means, my client lost in the previous court) I made my first arguments and was able to reserve three minutes for a rebuttal. Rebuttals are made after the appellee (the party not appealing) makes their oral arguments. The rebuttal gives me an opportunity to discuss with the court anything the appellee said after my oral arguments. Oral arguments at this level is limited to a total of 20 minutes. So, since I reserved three minutes, my first attempt at oral arguments was not to exceed 17 minutes.
I barely got finished introducing myself to the court when Koshiba began asking me questions. Unlike some of my other classmates who had different judge panels, our judges actually read our briefs to the court and were very familiar with the arguments written in them. So, when Koshiba began asking me the questions, he was asking for clarification on what exactly I was arguing.
It might be interesting to note, that, since I am an avid viewer of Boston Legal (the best legal show on television EVER!) I've been wanting to adopt the best court room styles ever shown on TV. Those styles come from characters Alan Shore and Denny Crane. Alan Shore exudes poise and wit while Denny Crane reaks of confidence (even when he doesn't know what he's doing) and ownership of the court.
So anyway, when I initially approached the podium to make my oral arguments, I approached it with the attitude that I owned that podium, that the court room belonged to me, and the judges would hear what I wanted to say, understand what I wanted them to hear, and be convinced that I knew what I was doing up there. Having the first bite at the apple, I wanted to make sure my opponent knew that my first bite would be big... VERY BIG, leaving little for her to take. By reserving three minutes for rebuttal, I was letting her know that I would be taking two bites.
It did catch me a little off guard that I was being questioned so quickly, but I was cautious not to let that show. I smiled, and quickly answered Koshiba's question and proceeded with my presentation. Not much time passed before he asked me a question again. I heard him, but I hadn't produced an answer in my head yet and I couldn't risk spending time on silence, that wouldn't look good. I smiled and asked him to rephrase the question. It gave the appearance that I didn't understand his question, but I knew what I was doing and I did understand his question. I needed to buy myself some time to formulate an answer in my head. I paid little attention to his rephrasing and thought about my answer. I figured out the answer and had only a few seconds to spare before he finished his re-phrasing of the question. This was great, because it allowed me to answer the question immediately after he asked it, rephrased. This looks so much better than looking dumbfounded and silent. I answered his open-ended question completely and to his satisfaction.
Throughout the couse of those 17 minutes, I was questioned by Judges Ezra and Kobayashi. I was having a field day. I was a kid in a toy store on a shopping spree. Although they asked very probing questions to my arguments forcing me to think quickly, it was still like I was a child in that toy store and they were asking me how I liked each toy. My responses echoed that confidence.
The podium became a throne to me, and I was sitting as King.
It's important to know that in the lower court, my client lost to the Defendants motion for summary judgment. When a party wins/prevails on a motion for summary judgment, that means, the court is confident that based on the facts provided and the law, this case doesn't have to proceed to an actual trial. Summary Judgment stops a case from going to trial because, based on the information, there is supposed to be no way that the party filing the motion for summary judgment would lose in a trial. Summary Judgments are necessary because, court dockets are crowded and if there are cases that don't need to go to trial, then, they shouldn't go to trial. So anyway, the defendant, (I represented the Plaintiff) won in the lower court for summary judgment.
My client, through me, appealled. An appeal doesn't mean that a party is asking a court to "re-try" the case. An appeal is essentially saying, "the lower court was wrong when it made its decision and we want you, a higher court, to review ONLY all of the facts, evidence, and arguments that were presented in the lower court b/c we believe they came to the wrong decision. In an appeal, you cannot introduce new evidence, new witnesses, etc, etc. In our case, we were saying that we believe the court applied the wrong law. We weren't asserting that there was a dispute in the facts but rather the application of the law.
The last question posed to me was by Judge Ezra who asked me, (and it seemed to have been coming out of left field, I didn't expect it) "Are you saying there is a general issue of material fact?" I was stumped and immediately recalled what my "bruddah" Donavan K. told me about his recent oral argument. "Brah, the guy asked me a question about something we haven't even learned yet. I never know what for do, so I turned around and looked at my professor and he just wen shrug his shoulders. I told the judge, I never know." I wasn't about to do what Bruddah Donavan did. NO WAY! I was sitting on this throne and there was no way anyone, not even Judge Ezra was going to take me off until I was ready. But, I was stumped because, we appealed under the argument that the court used the wrong law, not that there was an issue of fact. So, I responded with, "Your honor, I'm a little hesitant right now to say no." Unlike Donavan's question, we had been taught about general issues of material fact, but, during my practice oral arguments, this question never came up. So, when Ezra asked a second time, after my response, I simply said, "Yes, your honor, I am."
Because I am the appellant, I want the judge to reverse the lower court's decision. Summary Judgments are given to parties when there is no issue of general material fact. What this means is, the facts of a case are in such a way that a jury could not find against the party who wants summary judgment. Unfortunately though, I was so surprised at the question that I didn't really think about it. I believe Ezra recognized the strength in the arguments I was making, and was now convinced after my arguments that the lower court was wrong in granting summary judgment. My time was up and was actually over when Judge Ezra asked me the last question. I went overboard on my 17 minutes, but Judge Ezra made sure the court room clerk continued to reserve my three minutes for rebuttal. That was the fastest 17 minutes of my life.
My opponent, (who is a good friend of mine at school) approached the podium for her oral argument. She would have 20 minutes to present her case and answer questions. I was anticipating that she would make reference to two cases that I was hoping to discuss in my rebuttal. In court, attorneys refer to other cases to help guide the judges in making their decisions. As lawyers, we look for similar cases to defend our position and say, "we should follow the decision in this case because it is the same and...either the court we're standing in made that decision and are bound to it, or, a higher court made the decision and we're bound to it too. Or, when our opponent refers to cases, we'll try to distinguish their cases and tell the judges, "We shouldn't follow that case because it's significantly different."
My opponent never referred to the cases that I was hoping she would, but, lucky for me, Judge Kobayashi brought one of the cases up and asked a question about it. This provided me the opportunity in my rebuttal to distinguish that case. Judge Kobayashi knew about the case and that the defendant was relyng on that case, because in our briefs, we make those same arguments and cite to those cases. But, when you make oral arguments, you don't always cite to the judges the cases. So, again, by her raising a question about that case, I was now able to use it. The other case I wanted to talk about wasn't raised by any of the judges nor was it raised by my opponent. But, my opponent discussed the definition of a word in controversy. The word in controversy was "accident." It was in controversy, because the insurance policy that existed between our clients didn't define the term, so there was a degree of ambiguity. So, the defendant is defining the word differently than I was. But, I could use her discussion of that term to bring up the other case I was hoping she would discuss. Now, I had another argument to use in my rebuttal. But BANG! she began to distinguish my key case (Sheets v. Brethren Insurance Company) and attempted to convince the court that they should not apply the test provided in my key case nor should they apply the decision and rule reached in it. It was a valiant attempt on her part.
My rebuttal is only 3 minutes long and I knew there was no way I could talk about her two cases AND convince the court that my key case was the case to follow, AND still answer any questions they had, if any. I had a big decision to make and quick. I didn't know which case I was going to leave out of my rebuttal, but I knew I had to defend the case I wanted them to use. Her 20 minutes was up and my last three minutes had crept up on me.
I approached the podium one last time, "Your honors, I would like to draw your attention to opposing counsel's definition of the word, 'accident.' Again, I must re-iterate, that the insurance policy was ambiguous because it did not define the term. But, keeping that in mind, I would like to direct you to a case cited by the defendant in her brief, Gaylord v. ProPump. In that very same case the defendant cites, it defines 'accident' differently than she defines it. The court in that case defined accident in a way that defines it more consistent with our definition." I then read that court opinion word for word. Sure, I was off the throne for 20 minutes, but I was back on it. I didn't just own that podium, the court room was now my Camelot or better yet, my 'Iolani Palace. Mine. I had taken out my sword from its scabbard and placed it on the shoulders of my opponent's case (Gaylord v. ProPump) as it knelt down on one knee before me. I knighted the Gaylord case. The Gaylord case would now work for me and defend my castle/palace, my argument, my position. With less than than two minutes remaining, I had to come to the rescue of my fiercest warrior, Ke'eaumoku (the warrior for and teacher to Kamehameha). The Sheets v. Brethren Insurance Company case was my Ke'eaumoku. It was the case that stood proudly, tall and strong over this case I was arguing in. My opponent had stabbed my Ke'eaumoku badly but not vitally. The strong warrior he is, he would survive. Whether or not he would be strong enough to continue fighting would be up to me. It was my obligation to quickly tend to those wounds and heal them immediately. Time was becoming another fierce opponent to us in the wake of my opponents brutal attack. "My opponent attempts to distinguish Sheets but it is the most appropriate case, of all the cases cited by both of us, to apply here. She's right. Sheets requires a causal nexus. Her interpretation of the causal nexus however, is incorrect. If you look at the facts of the case in Sheets you'll see that, like the case before us today, the causal nexus does not have to be direct. In can be indirect. In Sheets the suing party alleged that negligent misrepresention influenced them to buy the house. They relied on the representation that the septic tank was in good working order. After hearing that representation, they decided to buy the house. When the suing party moved its family of eleven into the house, the septic tank could not sustain the sewage and waste of the 11 people. As a result there was flooding. Representations of the septic tank being in good working order were made to the customer from the seller. The customer relied on that representation, then bought the house and moved their family in. Soon after, the septic tank failed to work correctly because it could not sustain the 11 members of the family living in the house. Flooding occurred and there were damages. The buyer said, if they had known that the septic tank wasn't in good working order, they wouldn't have bought it. That same scenario happened here. In our case, Johnson Construction relied on Tom's Crane's representations that the crane was safe, reliable and would comply with state statutes on crane height. Johnson Construction relied on those representations. Later, it was found that the Crane had servo malfunctions, excessive wearing of the tracks and hoist stalls, did not comply with state statues on crane height (the crane exceeded the height limit), and a Johnson Construction employee was injured. The causal nexus in Sheets was the same as in this case. I defended my warrior Ke'eaumoku and he was now standing tall and strong again. He defended my domain once more as I reminded the judges of his strength. "Sheets is the most appropriate case to guide this court in reaching its decision. There are too many similarities here which, again, includes the same language existing in both insurance policies. The insurance policies in both cases are strikingly identical even down to the ambiguity of the term, 'accident.' The causal nexus here is very similar and therefore, the test created in Sheets should be applied. We satisfy that test." About ten seconds were left. "If there are no are further questions, I would just like to state that 1.) Negligent misrepresentation is an occurrence, 2.) that Sheets is the most appropriate case to apply here, and 3.) Bermuda Mutual committed bad faith when it refused to defend Tom's Crane. Thank you. The battle was over. DENNY CRANE!
WHEW! Oral arguments were now over. The judges showered us with numerous compliments and commended us for our poise and style and expressed clearly that they were impressed with our oral arguments and, as they described it, well-written appellate briefs. Both Judges Ezra and Kobayashi praised my rebuttal calling it great. Kobayashi stated that I did very well in defending Sheets, my key case. THey equally made compliments to my opponent (and friend) as well. She did great.
While litigation is very adversarial, neither the judges, nor our professors declared a winner to the oral arguments. Our oral aguments were simply an exercise for us to verbally demonstrate our understanding of our case and to defend our arguments when they were criticized and/or questioned respectively by opposing counsel and the judges.
It was awesom experiences and I would leap at the opportunity to do it again. Until then, I must now dedicate myself to studying for final exams.
In less than two days, my parents will be here. I can't wait!
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(Anonymous)
2005-07-01 21:25
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Well done, Applaud, Hats off, I'm proud of you. Did very well and prevailed, You stood tall and firm. Your discription was great and I enjoyed reading of your event and know you felt the rewards of your hard work.
Great Job. and very proud of you
Love,
Mom(Reply to this) (Thread) |
| Good job Derek!
(Anonymous)
2005-07-28 01:21
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Now I'm on your blog too. It sounds like you have really found your niche - that is awesome. I am proud of you too!
Neida(Reply to this) (Thread) |
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