10/10/2007

13 Comments

1. Wow, she is a babe. Is she single?

   Comment by Dude — 10/10/2007 @ 7:29 pm

2. Dude, I had my witty comment related to her obvious sex appeal censored by Patterico, so watch it…

   Comment by Christoph — 10/10/2007 @ 7:30 pm

3. That’s the end of that discussion.

   Comment by Patterico — 10/10/2007 @ 7:33 pm

4. Okay, on topic: I like Thomas’s style of listening. However, I don’t see any problem with asking questions too, which is part of good listening. Thomas asking questions at the end if his points haven’t been covered is the best of both worlds.

   Comment by Christoph — 10/10/2007 @ 7:42 pm

5. There’s never been a time when I could not engage the Court within three minutes. A conversation and not a recitation. I can’t say that oral argument made any difference anymore than I can say that the case wasn’t decided by Rule 23 clerks (staff attorneys writing unpublished orders).

   That he had made his mind up consulting with his clerks before oral argument …. Ok, Article III gives him that power. But the law is process. So would he reverse a trial judge who had made up his mind reading the pleadings in consultation with his law clerks before the trial? (Yeah, it’s not an exact analogy.)

   Comment by nk — 10/10/2007 @ 7:58 pm

6. Did you read the linked posts, nk?

   All of the Justices come to the arguments with their minds made up.

   Frankly, given the stakes and the need for research, they’d be idiots not to.

   Justice Thomas gives the lawyers a chance to speak, and change his mind. It rarely happens, but at least he shuts his yap and gives them a chance.

   Read through the links (I’m suspecting you haven’t) and see if you feel the same. Especially the first one.

   Comment by Patterico — 10/10/2007 @ 8:02 pm

7. Patterico, I think Justice Thomas’s listening style is commendable… but frankly, provided they’ve done their research and thinking ahead of time ála Thomas, I don’t have a problem with the other Justices asking a bunch of questions if that’s how they think best.

   I tend to ask questions and that doesn’t mean I wouldn’t be trying to get to the truth. I would be.

   I may well learn from Thomas and adopt his approach. I just don’t think there’s anything wrong with the asking question approach, provided you’re not wasting the lawyers’ and their clients’ time with making speeches instead of uncovering and testing their core arguments.

   Comment by Christoph — 10/10/2007 @ 8:12 pm

8. I read both the links before commenting. I’m careful here, Patterico. I’ll read them again.

   Comment by nk — 10/10/2007 @ 8:21 pm

9. Ok, I read them again.

   Comment by nk — 10/10/2007 @ 8:24 pm

10. NK,

    I think trial judges should prepare for pre-trial legal issues and anticipated trial issues but they have to wait for the facts to be presented. However, appellate courts should have a good grasp of the issues before oral presentation or they haven’t done their homework.

    I’m obviously not privy to Justice Thomas’ thinking or methods but I read that interview to mean that Justice Thomas and his clerks outline the case, facts, positions and arguments so J. Thomas generally knows where he stands on a case. The argument is like the icing on the cake that probably won’t change the prepared outline, but it might. I liken it to summation in a jury trial. The jury has probably formed an opinion by that time. It’s a rare summation that can change their minds completely.

    Comment by DRJ — 10/10/2007 @ 8:41 pm

11. I agree with DRJ on this. I’ve been on a number of juries and the summations were pretty much wasted time. I can see where they might be useful in some cases, especially long and complex ones, but a summation has never come up with anything which altered my opinion on the case, nor the opinions of several other jurors who served with me.

    Granted that I’m basing this on very limited discussion as only on one jury did we actually discuss the effect of the summation, and then all agreed that both sides seemed incompetent in their summations. I also discussed it with one other juror on another jury on which I served, but that was long after the case and the other juror was a friend of mine. However, even with such limited discussion I’ve seen nothing in the other cases which would change my opinion. So yes, it might be that on rare occasions the summation will affect the outcome, but most of the time I doubt that it will.

    Don’t take this to mean that I’m arguing to abolish summations, only that they are of limited usefulness to the jury most of the time.

    Having said all that, I can well understand why Justice Thomas may not think that oral arguments do much to advance most cases if the analogy of summations being somewhat similar to oral arguments holds true.

    Comment by Fritz — 10/11/2007 @ 6:12 am

12. I would prefer a judge who asks a few questions and listens to the answers, rather than one who asks and interrupts or is intent on asking cunning hypotheticals that are best suited to displaying his own wit.

    Comment by quasimodo — 10/11/2007 @ 9:21 am

13. the summations were pretty much wasted time.

    Next you’ll tell us “Boston Legal” is fiction.

    Comment by McGehee — 10/11/2007 @ 7:40 pm

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