Episode 4: At the High Court

ISSUES ON APPEAL PODCAST TRANSCRIPT Episode 4: At the High Court Welcome to the Issues on Appeal Podcast. I'm your host, Duane Daiker. This is Episode 4: At the High Court. Duane: Thanks for joining me. As you know, this is a podcast that focuses on appellate issues and appellate practice in Florida, in both the State and Federal courts. And normally we do that through interviews with other lawyers, but this week is going to be a little bit different. We've had a lot of requests to talk about my recent visit to the U.S. Supreme Court. My case was heard at oral argument last month, and I thought many of you would find it interesting. Now, I didn't have the opportunity to argue the case, but it did just about everything else. It was truly awesome. Now, I'm not an expert in this by any means. This is my first time through the entire process, including briefing on the merits and oral argument. I'm just sharing my experience as a first timer at the court and through this process, but through the lens of an experienced appellate lawyer and somebody who is just fascinated with the whole process. But I didn't want a drone on about it, so I recruited a local appellate lawyer, friend and podcast enthusiast, Jared Krukar. Jared is with DPW Legal here in Tampa and is a Board Certified Appellate Specialist. Jared's interview with me, sorry, of me is coming up next. Jared, thanks for joining me on the podcast. Jared: Thank you. I'm glad to be here. Duane: So, you're an appellate lawyer here in Tampa and a big appellate geek like a lot of us with a lot of interest in the high court. So, I wanted to have you here today. Before we get started, will you tell me a little bit about your appellate practice? Jared: I'm with DPW Legal in Tampa Bay. We practice appellate law and intellectual property and I handle most of the appeals there; kind of all any 3sort of civil appeals you can think of; we have probably seen it. Duane: And I should mention that you are fairly newly certified by the Florida Bar as an Appellate Specialist, I think, just this past year you obtained your certification. So, congratulations. Jared: Thank you very much. I appreciate that. Last year. Duane: So, this is kind of a special episode of the podcast. I say special because I think that I will do a little bit more of the talking on this episode than I normally do. But I needed someone to be a guest host, so I brought you in as someone who would have some interest in this to give me somebody to talk to about this subject. Jared: I'm excited. I'm excited to commandeer the Issues on Appeal Podcast for just 45 minutes or so. So, let's go. Duane: There you go. So, what do you want to know, Jared? Jared: What do I want to know? Well, first, I think we need to introduce you if you are a guest speaker today. So, Duane, can you tell us a little bit about your practice? Duane: Sure. I am a Board Certified Appellate Specialist II. I am the head of the appellate department at Shumaker, Loop & Kendrick here in Tampa. I am sort of a generalist as it comes to a handling appeals. Like a lot of us, we take whatever comes in the door that sounds like an appeal or feels like an appeal. Obviously, because of the law firm, most of my practice is civil and generally commercial appellate practice, but I do some personal injury appeals and just a lot of administrative law appeals; anything that comes my way that sounds like an appellate court, I'm in. Jared: Yeah, I think a lot of us are similar that way, much like your previous guests, in that it's exciting to be a procedural specialist where we can specialize in appeals of all sorts, rather than a substantive area of law. So, that's one of the great things about our practice. Duane: It definitely is. It gets us to do a lot of different things. It's a lot about the mindset of the appellate process and differentiating that from being a trial lawyer and understanding, the processes and the persuasion and the communication. I guess our advocacy is the same in some respects, but appellate advocacy, it all shares some common skills and common thought processes that are very interesting to me. Jared: Absolutely. Absolutely. So, what brings me here today to interview you is that you recently had a trip to a court that we don't all get to practice in very often. Duane: Yeah. My first trip to the U.S. Supreme Court in Washington, D.C. Jared: Okay. So, tell us, I mean, not about the facts of the case, of course, but what brought you there? What kind of case did you have that brought you all the way to the U.S. Supreme Court? Duane: Well, I had a Federal case that was dismissed at the district court level on a statute of limitations basis under a Federal Law; under a particular Federal Statute, which was great, but the plaintiff appealed that case to the 11th Circuit and ultimately the 11th Circuit, reversed the dismissal, sent the case back. But in doing so, the 11th Circuit recognize that there was a three-way circuit split between other Federal Circuits as to how that portion of that statute should be interpreted. So, they sort of opened the door for review at the U.S. Supreme Court. Jared: Were you the party that ended up seeking the petition for cert to get to the U.S. Supreme Court? Duane: Yeah, my client was one of two codefendants in the case. So, we both are co-petitioners to the U.S. Supreme Court. So, we filed a petition for writ of certiorari with the U.S. Supreme Court, asking them to review the case and that process to resolve this conflict that existed among the other Federal Circuits. Which there's very limited ways that you get to the U.S. Supreme Court, and that's one of the most common is when you can demonstrate, and in this case, the Federal Appellate Court recognized that there was definitely a split amongst the courts and how they how they are reading that statute. Jared: So you're obviously involved in the appeal on the 11th Circuit. When did you get involved with the case? I believe you were involved in the trial level? Duane: I was. I was a primary counsel for my client at the trial level. Interestingly, at the trial level, I was sort of the lead in the case. The other codefendant sort of tagged along. I filed a motion to dismiss on the statute of limitations grounds and argued it to the district court and got the dismissal. After that point, some things had changed with my client and the co- defendants became much more interested in the case. They had a law firm, an out of state law firm that represented them in the 11th Circuit. They did more of the work in the 11th Circuit. I was involved, obviously, I like to practice in other circuits, so I had felt like I had a lot to offer there. I went to the oral argument, but did not do the oral argument at the 11th Circuit. Jared: Were you involved in the Supreme Court in filing the petition or did one of the other parties take the lead on that? Duane: So, the attorneys were involved for our codefendant at the 11th Circuit. They were replaced by another firm that has a very strong Supreme Court practice and is based out of Washington, D.C. You know, Jared, this is a pretty specialized area. There's not a lot of lawyers in the country that claim a specialty in doing U.S. Supreme Court representation. And frankly, it's not inexpensive to hire one of those firms. My client is was a smaller business. The codefendant was a very large international company and they thought it was important enough and they were willing to spend the money to hire a Supreme Court firm. So, they, I would say, took the lead in the briefing, although certainly I had a lot of input. They were very good about working together in that process. So, I was definitely involved in the briefing process and I was happy to have that involvement. Jared: Okay. So, just so our listeners know, some of them may not the practice in the U.S. Supreme Court before, there is a pretty significant process, including that petition to get jurisdiction in the U.S. Supreme Court. That includes a response as well, potentially. Can you tell us a little bit about that? How did that apply in this case? Duane: Sure. So, the first step is the petitioner who's seeking review files a petition for a writ of cert with the court. And I've been in that position before where I have had other parties that I was opposed to file petitions. And when you respond in that situation, a lot of times, you don't even file a response; you waive your right to file a response. Because the fact is the Supreme Court gets so many of these and they hear so few of them, that the chances of getting your cert granted are pretty remote to start with. And so, usually the effort that's even spent on responding to a petition for a writ of cert is not worth it. The latest stat I saw on the court site was that the court accepts about 100 to 150 petitions each year, but receives more than 7000. So, that would tell you that the statistics are not in your favor. But the good news is, and the reason why we generally feel comfortable waiving a response, is if it's something the court is really interested in, before they decide to grant cert, they will ask the respondent for a brief. So, there's really no danger. So, I've been in that situation before. I've been the recipient of a petition and I've always filed a waiver and it's never gone any farther than that. But what happens at that point is the� there's something called a Cert Pool where the judges get together or their clerks and they review the petitions that come in. And four of the nine justices have to vote in favor of hearing your petition for it to move on. So, what happens is there's a conference date and they get together and they take that vote. This is one thing I didn't understand about the process is usually any case, before the court accepts jurisdiction and decides to hear the cert petition, they will they will discuss at a conference more than once. So, what happened in our case is we had a conference date and then it got reset for a second conference; and that is a very good sign. A lot of cases are over after the conference date; you'll get a notification that they've declined jurisdiction. But we got the notice it said that it had been reset for a second conference. So, while that's no guarantee that they're going to take it, that's a really good sign. And ultimately, we did get notice from the court that they had accepted jurisdiction of the case. Jared: So, that's interesting. That's a lot different than what we typically perceive in most Florida appeals and Florida discretionary review is you don't know what's happening with the court while they're considering whether or not they want to take your case. You just kind of sit there in and wait. Duane: Yeah. And one of the ways you can keep track, I mean, obviously you can keep track through the Supreme Court's website and their docket, but there's a service out there that's a SCOTUS blog. Which is at scotusblog.com, I think. Jared: So, that's S-C-O-T-U-S-blog? Duane: Right. Supreme Court of the United States (SCOTUS blog) and they keep track of these things and they will tell you what cases are being heard at conference where cases have been relisted. They have sort of a realist watch because everybody is more interested in the cases that have been relisted. So, it's a great way to keep up with what's going on with your case, ironically. Jared: So, the SCOTUS blog is just a couple of private attorneys (Well, I don't know if we�re many) but it's just private attorneys who happen to have a significant interest in this and they will watch the dockets themselves and post that. Duane: Right. A lot of whom are local and usually some representative of the blog is at oral arguments each day or when opinions are being read. And so, any morning that the court is going to be announcing opinions, there's a live blog on SCOTUS of, you know, you hear it there first when a case is decided, which is pretty neat. Jared: Interesting. Interesting. So, another thing that's somewhat unique about the Supreme Court practice is that it's not always just the parties that are in it from the appeal that end up getting involved. The Solicitor General sometimes gets involved. Did the Solicitor General get involved here? Duane: They did. We got some communication from them early in the case and had a telephone conference with a representative of the SG�s office where we tried to persuade them to take our side, unsuccessfully. Ultimately, the government decided to support the respondent in the case. And so, they did file an amicus brief from behalf of the government. And actually, I'm getting a little bit ahead of myself, but they actually took some time at oral argument too. The Solicitor General can ask the court to take a part of the oral argument time for the party they support for themselves. And so, they did do that. So, the Solicitor General actually had 10 minutes at the oral argument. Jared: Does the party have any say in that? Duane: You know, I think technically, you could probably oppose it, but I don't think anybody does, because they think the court's going to change their mind. If the government wants to be heard, I think the court's going to hear. Jared: Right. So, you are watching the conference lists, you�re seeing what's going on in the Supreme Court, then what? What's the notice you get? Duane: Well, you get briefing notices that establishes a schedule for the briefing. It's a lot, like we know in any other court, both parties file a principal brief and there's a reply brief. It's really not much different than anywhere else. There's a lot of formatting requirements for the Supreme Court briefs. Luckily, working with a firm that does this all the time, I didn't have to focus on that a whole lot. But there are a special printing requirements and colors and sizes. The court is still a little bit antiquated in that way. Every brief has a different color and you end up with a rainbow file full of briefs. There's a whole industry for printing Supreme Court briefs. It's pretty amazing. It's a little cottage industry of helping you to get your briefs filed. Jared: So, like specialist law firms, you probably have specialist printers sitting up in D.C. ready to take on your task. Duane: Oh, yeah. Absolutely do. Absolutely. Another thing, you might find this interesting; it surprised me. Very different from State Court practice is our reply brief was only due two weeks before oral argument. So, it was a very tight schedule. You're trying to prep for oral argument and you're still finishing up your reply brief and the court doesn't have a lot of time to look at it. I don't know if it always works out that way or if it's just the way our case got scheduled. But I was surprised that the briefing schedule was so extended that it was knocking up against the oral argument date. Jared: Yeah, it sounds like there might be actually a pretty good positive to that and that you are already preparing for the oral argument while you're briefing as opposed to what you and I typically do here is the case sits for three, four, five months, you keep your eyes open for new cases that come out. But other than that, you almost, not from scratch, but you have to start preparing, from the beginning, just a few weeks beforehand. Duane: Right. You really have to refresh your memory. And here, that's really not the case. It's you're working right through. Jared: You get a notice that you're set for oral argument. What is the preparation for oral argument? You're still writing your reply brief, I suppose, while you're starting to prepare. Duane: One of the things that we did was some moot court sessions, where we would get together and the attorney who is arguing the case would argue to a panel of other lawyers for input on arguments and questions and that sort of thing. Now, I did not participate. I only participated in the last one of those. I know that they did some internally, but they invited me to the moot court that was done just a couple days. I traveled up to Washington, D.C., a couple days early for the oral argument and we had a moot court session where we spent a couple hours, just going through the case. Even at that point, we were still refining arguments and theories and responses to questions. And it was a wonderful experience. There was a roomful of very experienced Supreme Court litigators and appellate lawyers, and I like that almost as much as the oral argument day. It was just a blast to talk through all these things with people who had been there and I loved it. And I'll tell you, one of the things that amazed me was there was not a single question that came up at oral argument in front of the Supreme Court that hadn't already been discussed in the moot court session. So, that tells you successful moot court. Jared: Everybody knew what to expect. You were ready for it. Duane: Right. No surprises. Jared: That's great. So, I guess one of my questions would be, how would mooting for a Supreme Court case differ from mooting for a State Appellate Court case or a state Supreme Court case? Duane: Well, one of the things I was left with the impression that U.S. Supreme Court is not that much different than the Florida Supreme Court. A lot of the concerns are the same. But anytime you're at the highest level court like that, it's different than the intermediate courts. They are looking more at policy arguments, bigger concerns, bigger issues beyond what precedent might apply. So, you have to have that right mindset. One thing that was interesting in this particular moot court is the market judges would at times actually indicate, before they asked a question what justice they were channeling and making that question. Jared: That's incredible. Duane: I thought it was pretty cool in anticipating what that justice would say or what question they might ask. That definitely adds a little bit different element to it. Jared: Did a fake Justice Thomas ever ask a question? Jared: No? No fake Justice Thomas? No questions? Duane: No. Jared: All right. Let's talk about the actual Supreme Court. You have prepared. You are ready to go. I believe, from the Facebook post, I saw that you had a day off beforehand where you were able to go visit the court as a tourist with your lovely bride. Duane: I did. We did go to the court that day. I wanted to visit the Supreme Court Gift Shop, which I know you have seen before, but I did not realize until I had been to the court previously that there is a gift shop where they sell a lot of things and I wanted to make a stop there. And just to otherwise remember the lay of the land and that sort of thing. And the court building is open 8:30 or 9:00 o'clock to 4:00 or 4:30; just about every day, unless there's something unusual going on. So, it's easy to just go inside and poke around. And everybody was super friendly there, especially, if it came up that I was going to be there the next day. Everybody always wants to talk to you about your case and congratulate you and that sort of thing. So, it was actually a really cool experience to go there the day before and to sort of poke around a little bit. Jared: That's great. And what Duane was talking about, about us both visiting before is with the Florida Bar Appellate Practice Section. Our retreat last year and October was to Washington, D.C. So, we were able to have conferences throughout the day and we had a reception at the U.S. Supreme Court at night. It was an amazing experience; getting to roam the halls when the court was effectively closed to the public and with a quick visit to the gift shop, for those who followed somebody else who knew where they were going. But that's about it with that. But the one thing about the court, when it's opened just to the public (and this is what I'm incredibly jealous of) is that the courtroom is not open to the public. So, you can only see it from a little wooden barrier from the outside and peek in. Duane: That's right. I think we both have pictures of the entrance to the courtroom that you can just sort of peek in, but they don't generally allow people in the courtroom. I have heard, interestingly from other people that some tour groups do get to go inside the courtroom and actually sit, at least behind the bar, maybe not at counsel table. But generally speaking, you don't get into the courtroom now. Jared: One day. One day. So, that's the day before; day of. I'm really curious about how it's different, as far as, where you go into the building as an attorney who's practicing there. And also, is the rest of it's still open to the public or what? Duane: Yes. So, that day we showed up. Oral arguments set for 10:00 and the building opens about 8:30. I think we were there at 8:30. We were a little eager to get started. Jared: I don't blame you. Duane: When the Uber drops you off across from the court, the first thing I noticed was the huge line of people out front. Even though our case is not of particular interest or importance to the public at large, apparently oral argument is just of interest generally. And it was sort of in that spring break rain. So, I imagine that there were a lot of tourists in town, but there was a huge line of people waiting for the oral arguments to open and to try and get a seat in there. Now, you don't have to wait in that line if you just want to go into the court and look around. That was a line specifically for the public for oral argument. I don't think everybody got in; that was a very significant line. But as an attorney, when you roll up, you walk past that line and there are entrances on the lower level; you don't go up the iconic stairs into the courtroom. You go around the right or left side and there are doors there that anybody in the public uses, not just an attorney entrance. It's the public entrance for people were not there for oral argument. And then once you get inside, they direct you to the clerk's office where you check in. And then ultimately, one of the marshals will take you up to the second floor where there is a lawyers� lounge. Jared: The lawyers lounge. So, you walk into the lawyers� lounge. Who else is in there? Duane: Well, because it was a day with only one case, it was pretty empty when we were there. It was just us and opposing counsel for our case. And it's not much of a lounge. Jared: Why? What�s it look like? Does it have justices all over the wall and historical figures like we saw in the other room? Duane: It's one of the rooms. Well, this is just for you and the people who were there. But remember when we were at the appellate practice section gathering and we had a reception at a room off that interior courtyard? Jared: Yes. Duane: The lawyers� lounge is on that interior courtyard. It opens up into the middle of the building. So, it's just your typical room with some nice portraits in it, a bunch of chairs and there are restrooms for just lawyers there, which is nice. Jared: Especially if you're nervous {indistinct 23:38}? Duane: Especially if you're nervous; it doesn't hurt. Interestingly, this relates to another thing I want to talk about, which is there are no electronics of any kind allowed in the courtroom. You can't bring your cell phone. You can't bring laptop, iPad. In fact, they wouldn't even let me take my Apple Watch. So, at this point, you have to decide what you're going to do with them. And the court staff said, �Well, you can either leave your stuff in the lawyers� lounge or there are lockers available. You can lock your stuff into a locker.� And it just for some reason, I find it very humorous that the lockers require a quarter. It's like the old fashioned lockers at amusement park or you have to put in a quarter to put your stuff in and take the key out and carry the key around you till you get your stuff out. I did do that, but now that I know what I know, I would probably just leave my stuff in the lawyers� lounge. There's nobody going in there besides the lawyers who are there for the cases. So, I think that's a pretty secure place. Jared: I'm thinking there's not much more of a secure place than the interior rooms of the U.S. Supreme Court. Duane: I think so too. Jared: All right. So, you've gone to your locker now and you've deposited your quarter. Is it one of the lockers that returned your quarter when you were done? Duane: No, no. You're in it for the quarter. Jared: Oh, okay. So, you've dropped your stuff out there. Do you go back to the lawyers lounge? Duane: Yeah. You hang out at the lawyers� lounge until the clerk comes in. And when I say the clerk, I mean, the actual clerk of the court, Scott Harris, who's the clerk. He comes in once all the lawyers are there and gives you a briefing or rundown on the day. It was very cool. It's sort of like seeing a celebrity, you know, just to see Scott Harris and he�s a very nice guy. And he told us what the plan was. There were three opinions that were going to be issued that morning before court ever started. There were some motions that we're going to be heard to admit members to the U.S. Supreme Court Bar; he talked about that. And then he sort of gave some tips on what the expected customs are at the court. One of the things that you get from him at that point is you get this little card, this little handwritten card, very high tech. Sort of like the size of an index card. And it is your admission ticket to get you into the Supreme Court Library, which I did not do, but I probably should have. Jared: Jeez, Duane? Duane: I know. I recognized after the fact that the card said that it would get me in the library. I was too anxious that day to read the whole thing. But it also gets you admission into the court in front of the bar, you into the courtroom. So, pretty neat little souvenir that you get to keep. One of the things that the clerk explains to you is that there is a particular line that you open every argument with, and that is, �Mr. Chief Justice� and �May it please the court.� And so, you'll notice everybody says that because this little card tells you to say that. It also tells you that you don't refer to the Chief Justice as Chief Justice Roberts. You refer to him as Mr. Chief Justice. That's just part of the ceremony. Jared: I'm sure your experienced Supreme Court practitioners probably knew that without looking at the card. Duane: Right. The other thing the card says, which I thought was interesting, it says, �Keep account of your remaining time during argument.� And then it says in italics, �Do not make inquiry of the Chief Justice.� Jared: Wow. Duane: I don't ask him how much time you have left. Jared: Okay. Duane: There is a clock. One thing nice is there is a clock that's visible from the podium. Jared: Okay. So, one of the things that you mentioned a second ago was that the clerk had some tips for you. Do you remember what those tips were that he passed on? Duane: Yeah, a lot. Some of what I just mentioned. I mean, he mentions you're not to start your argument until you're recognized by the Chief Justice. That you were supposed to say that particular line. He cautioned everyone, which you and I well know, not to not to refer to anyone as a judge; everyone behind that bench is a Justice. And he said, �While you are welcome to refer to them as Justice and their name, that it might be safer just to reference them as �Your honor�, unless you feel comfortable.� You know, a few tips along those lines. And he would certainly answer any questions. You know, the whole experience from Scott Harris to the marshal at the court, to anyone that we dealt with, everybody was extremely accommodating. You felt welcome. You did not feel like you were intruding upon someone else's place or that you didn't belong. I love the experience and that everyone there was there to make sure that you felt comfortable and could do the best job that you could do and was really very welcoming. And I thought that was great. Jared: It sounds like they recognized the significance of this kind of visit for any practitioner who doesn�t do it every day and they try to make it make it as comfortable for you as possible. Duane: Absolutely. Jared: Sounds great. Yeah. So, you're sitting in the lawyers� lounge and your case gets called or what happens? Duane: The court said essentially, �You can go to the courtroom whenever you're ready.� And so, what time better than the present? We moved immediately to the courtroom. Jared: Right. Duane: You have to go through a security check. You know, the typical metal detector. They don't have an X-ray machine. The public isn't allowed to bring in bags, but of course, the attorneys are. So, someone from the marshal�s office goes through your bag in some detail, looking at it. Jared: They make sure you don't have an Apple Watch stashed anywhere? Duane: Right. They're looking for electronics, among other things, I'm sure. And they let you in to the courtroom and then you have to show your little white index card in order to actually move in front of the bar. At that point, they were already seating, most of the public was already seated at that point. So, the courtroom was starting to fill up. Jared: So what did it feel like walking in here as a practitioner? Duane: Jared, it was it was pretty amazing. I don't actually remember some of those first couple moments coming in because it was just kind of overwhelming and you're just trying to take it all in. Jared: I'm trying to picture this myself. Are you coming in from the left hand side? Duane: No. From the back, right down the middle. You walk right down the middle, through the bar and to counsel table. Jared: And honestly, I don't remember. When you walk through the bar, is there the swinging door that we have in most of our courtrooms? Duane: I think so. Jared: You don�t remember. I mean, that's the last thing you're paying attention to is what the door is. Duane: I believe so. But I was really taking it all in at that point. Now, we went down and we sat on the left side. There's a large counsel table with a left turn in the middle. And the petitioners generally (this is another thing that I did not know) that petitioners generally sit on the left side and the respondent on the right. But I say generally, because the government, as the Solicitor General is arguing, they always sit on the far right side of the counsel table. So, if the government is supporting the petitioner, the sides reverse; the government's always on the right. So, generally petitioner on the left, but depending on what position the government is taking. If they're taking a position, sometimes that switches. So, that was an interesting little tidbit that I had never thought about. Jared: I haven't heard that either. So, you're walking in, how many attorneys are with you on your side? How many are sitting at your table with you? Duane: We had four attorneys on our side, two attorneys on the other side and then the Assistant Solicitor General. Jared: And you take a seat at this point? Duane: We did. We took a seat. The council table, it's a little tight with four people. They actually put a chair on the end; they sort of. So, that was a little bit weird. It's really better designed for 3 lawyers. Another thing that's interesting about the seating position is� and the clerk. This is another thing that the clerk mentioned to us in the briefing is when the attorney for one side stands and moves to the lectern, generally, everybody moves down a chair, closer to the middle. So, I'm sure so that you can pass notes or whatever or be in some contact if necessary. But yeah, we actually did. Everybody shifted the chair to the right when our side was at the lectern, which is interesting. Jared: So, this may be getting ahead of our conversation, but what happens when that attorney sits back down? Duane: Everybody shifts back to the left. Jared: Interesting. Very interesting. Okay. So, when you have compose yourself and realized, �I'm really here?� What surprised you as you're sitting there looking around? Duane: There are a few things. The first thing and I've heard people, everybody who has been at the court has said this to me, and I still didn't really internalize what it meant. The counsel table is extremely close to the bench. I mean, no one walks in front of the counsel table, between the counsel table and the bench. But even to do that, I almost think you'd have to turn sideways to get through there. It's very close to the bench. The justices are very close to you when they're seated. You really feel like you're there. I mean, I've argued at the Florida Supreme Court, and it's a different feeling because you're almost abutting the bench with your table. It's very, very close. And that was surprising to me. Jared: And who else is up here at this point? Is there a bailiff or security or the clerk? Anybody else working on the bench? Duane: Yeah. Before court starts, everybody sort of files in. And there is the clerk, Scott Harris, and I think somebody with him in the clerk's office sits. As we're looking at the bench to the left, the marshal is to the right of the bench. There are also some seats to the right that the law clerks of the various justices sit. Then there's quite a bit of seating immediately behind the council tables, but in front of the bar that separates the courtroom from the gallery and that is seating for Supreme Court bar members, who get sort of first shot at those seats. So, there is quite a quite a few of those seats and a lot of them were full. Those seats were not totally full for our argument. There is also a sketch artist who is in the courtroom, generally speaking, the gentleman who is there and I think is there a lot because he works for the SCOTUS blog. He�s a gentleman named, Art Lean, and he makes courtroom sketches because of course, there are no cameras of any kind allowed in the courtroom. Jared: So, the clerk had said that there was going to be opinions read. I'm guessing that's the first thing that happened before your argument. So, how does court start? Duane: There's some sort of buzzer that alerts everyone that the court is coming. I don't know how to describe. It is a little different than what I've heard in any other courtrooms. And then the marshal calls the court to order and the justices come out and they stand briefly in their position and sit. And of course, the courtroom all stands and then the marshal directs everybody to sit and the court starts. Jared: Is there an announcement at the beginning of court? Duane: There is. And I wish I could tell you what it was. It was some sort of, �Oh, yay. Oh, yay. Oh, yay�, you know, sort of thing. But again, I was a little caught up in the moment and I'm not sure that I heard it completely. Jared: You got the gist of it though. Duane: I did. Jared: Okay. Duane: It's interesting, while we're talking about the seating, you know, the justices have a very particular way in which they enter the courtroom and they sit. And so, the Chief Justice sits in the middle, which is John Roberts and then the justices fill in alternating sides of him by seniority. So, the most senior judges sit towards the middle and the least senior judges sit on the outside. And so, it's always fascinated me that you might wind up with every seat, I suppose, in the courtroom if you're on the court long enough or most of them, but I guess you don't get too comfortable with one seat. So, as we were sitting on the left side, I was probably four feet from Justice Gorsuch and Sotomayor; they were very close. Justice Sotomayor is so close at that point that I was having a little bit of trouble seeing her over the bench because she's maybe not as tall as some of the justices, but they're very close. So, then it was Justice Breyer and Thomas and then, of course, Roberts in the middle and then Justice Ginsburg, who was there, Alito, Kagan and Kavanaugh. So, it's not even Justice Kavanaugh, who is the farthest from me was� it just doesn't feel very far. Jared: So, the court opens with reading of opinions today or this day. How does that start? Who reads them? Duane: Yeah, that's something that I knew intellectually that the court announces all their opinions before they introduce them in writing, but I had never thought about that process. And so, when they have opinions to deliver on that day, they open the court and they go right into it. The author of the opinion presents it. It's interesting to me, Justice Kavanaugh read an opinion that he had authored and it seemed to me as though he read the opinion word for word. On the other hand, Justice Breyer had an opinion that he was presenting and then, you know, you don't have the opinion in front of you, so it's hard to say for sure, but it sounded more like he was speaking a little more extemporaneously about it. So, I thought that was interesting. And then there was another opinion that was delivered and Justice Breyer had comments in dissent. So, sometimes the dissenting justices are represented and say something in that process and apparently, sometimes they don't, because there was another case where there was a dissent, but no one spoke. So, I guess that that's a little bit flexible as to who wants to be heard on those topics. But it took about a half an hour for those three opinions to be delivered before we got to the to the business of the court. Jared: And you had no indication of what those were going to be beforehand? Duane: No. And in fact, that's one of the things, if you�ve watched the alive SCOTUS blog in the mornings, there's always speculation about what opinions might be read that day and how many boxes of stuff were brought out to give them some indication of how many opinions might be read that day. So, no. Nobody knows until it's spoken at oral argument. Jared: Very interesting. So, there are people speculating based on watching boxes being moved around the court? Duane: Right. Jared: It's serious stuff. That make sense. So, we finally get to your case and you said you were the only case that day. Duane: We were. And so, it starts; the chief justice calls the case. Every lawyer that that argued that day, he addressed by name. So, he was very well prepared to know who was arguing in the proper pronunciation of their name. So, he calls the case and calls the petitioner's lawyer by name and it starts. Jared: And how much time does everybody have? Duane: So, generally speaking, each side gets 30 minutes. Like in state court, as a petitioner, you can reserve rebuttal time, which we did. In this particular case, as I alluded to before, the government took 10 minutes of the respondent�s time. So, the respondent actually only had 20 minutes and the government had 10. Now, there is an analog clock high above the chief justice that you can see, but there is also a box with lights. And so, there is a five minute warning light and there is an out of time. White a white light for five minutes, red light front of time. Interestingly, the clerk, Scott Harris, told us� one of the things (I'm remembering now) that he told us in that briefing was that if the light turns red, under previous chief justices, you were expected to stop midsentence and you were done. But the Justice Roberts does not handle it that way. And that if you ask permission to finish your thought that that will be allowed. So, a little bit more forgiving as far as that goes. Jared: It's nice to hear; a little bit of good trivia for jeopardy next time. The case gets called, your co-council goes up, he announces the traditional opening line as set forth on the card the clerk has given you and starts arguing. Was it a hot bench? Did the justices have any questions? Duane: It was a hot bench. There were a lot of questions. I think in the course of the argument, every justice asked a question with the exception of Justice Thomas. But, you know, that's not unusual. Duane: Well, we talked about that. No, mock Justice Thomas in the Moot Court. Duane: Right. He doesn't ask hard questions. Although, interestingly, he did ask a question in a case later that week, but on our day he did not. So, everybody else, though, had questions. And clearly, the argument was spent addressing questions. There wasn't a lot of time to strike out on your own path. It was definitely a directed discussion. Jared: It's kind of the argument I think most appellate practitioners hoped for; you�d rather have a hot bench. I know that's how I am. I think that's how you are, Duane: right? Duane: Absolutely. I mean, if you're going to be there talking to the judges, you want to know what they're interested in. And you're going to be talking to justices, you'll certainly want to know what they're interested in. So, questions are better than no questions for sure. Jared: And so, the things they were interested in, were they the things that you were hoping they were interested in? Duane: I think so. For the most part, it's like any other appellate court. There were justices that we thought, by their questions, we thought were favoring our position. There were justices we thought were not in favor position. And there are others who are a big question mark. So, at the end of the day, when we were looking at the case, we're hoping for maybe a 5:4 in our favor, but you just don't know. Jared: That close, huh? Duane: It's very hard. You know, there's a lot of predictions that are done before hand and attempts to guess who will go what way. And ultimately, you just don't know. Jared: And from just a procedure or being in the court for the first time, was just watching or observing argument or being part of it, was that like what you expected or were there any surprises to you about how that proceeding occurred? Duane: No, I don't think it was surprising. I think the argument was very much what I would have expected. And I think I alluded to this before, not really any different than practicing in front of another Supreme Court; not much different than practicing in front of the Florida Supreme Court. It feels different because it's kind of a whole different level and you've got this all this pomp and circumstance and tradition behind it. But ultimately, giving that type of oral argument is just giving an oral argument. And that was very much what I would have expected in any other court. Jared: So oral argument is over. Your co-counsel has given as rebuttal. What does he do? How does he close out the argument? Duane: Well, key sort of ends very abruptly at that point. The Chief Justice has a phrase that he says each time, which is that the case is submitted. And that's it. Jared: So, that's it. So, your co-counsel sits down, Chief Justice probably doesn't even look around. He just announces, �Case is submitted� and nothing else is said? Duane: I don't think so. That was all I recall hearing. There's not a lot of fanfare. The justices stood up, everybody stood up and they filed out of the courtroom. It definitely ends quickly. Jared: Do they walk out in the same way they walked in, in alternating seniority? Duane: You know, I think so. I couldn't be sure about that. But I will tell you one thing that I thought was interesting. When you're standing there, you can kind of get a good view that the bench is several steps up from whatever is behind the bench; behind that red curtain. And so, the justices have to go down a couple of stairs to leave. And I did notice Justice Thomas stopped and waited for Justice Ginsburg and took her hand and helped her down the stairs. So, I thought that was very nice. Jared: That does seems very sweet. And if I recall correctly, your oral argument was just after Justice Ginsburg returned from her leave of absence, right? Duane: Yes. It was not long after that. So, we were happy for her to see her there and participating. Jared: Right. That's wonderful. So, you leave the court with the other fellow attorneys. I would then ask you; was your was your wife in attendance? Duane: She was. There is a limited number of seats that the court will designate for people who are not sitting at counsel table so that you can bring your clients or your partners or other people who worked on the case who there's no room to sit at counsel table. So, we did have a few extra seats. My client declined to attend. So, I was able to get one of those seats to my wife and also one of my wall partners. So, they were both able to come and watch the argument from a little bit farther back, but they certainly enjoyed it, too. Jared: So what's this feather pen we always hear about? Duane: Yeah. So, apparently, it's been a tradition at the court since John Marshall was Chief Justice that anyone who argues or sits at counsel table at the court gets a feather pen. When I say �I guess� I may not be using the terminology right. It's a goose feather quill that has to be dipped in to ink in order to write. So, I don't think that I will ever do that, but I do have my feather pen there. They're right there on the table as you come in. So, I quickly scooped that up and put it in my briefcase and that's another memento of the day that will probably be framed or something to keep. Jared: That�s quite the souvenir. Duane: Definitely a good one. Jared: I know we can't hold the court to any sort of timetable, but how long do you expect to hear what's going on? Duane: Well, generally, and so the court is in recess starting in late June or early July. So, we would expect to do here by them before they wrap up this session. So, I would say as courts go a couple months, that's pretty good, right? I think that's� Jared: That's not too bad. Duane: No. Jared: That's not too bad. Duane: No. That's admirable. Jared: Do you think you'll go back and watching away some time and just get into line? Duane: Well, see, the beautiful thing is for lawyers who are members of the Supreme Court bar, which is not difficult to do; you have to be a lawyer in good standing, you have to have someone who is already a member of the Supreme Court Bar to vouch for you and you have to pay a fee, of course. But if you do that and you get admitted to the Supreme Court Bar, you don't even have to have a case pending in front of the Supreme Court; you just have to apply. If you go through that process, then it's very easy to go see an oral argument. You just have to show up on oral argument day and those chairs I mentioned before are saved for Supreme Court Bar members and it's a first-come-first- serve, but I think it's not that difficult to get in too anyway if you're an attorney. If you're not an attorney, you have to wait in that line. And I think how long that line is depends upon what case is being heard that day and what time of year it is and what the weather's like and whether the cherry trees are blossoming and all that sort of thing. Jared: Right. Right. Duane: But definitely, I would love to go back in any capacity and I would recommend any lawyers that are going to Washington on a trip, do it far enough in advance that you can get admitted to the Bar and go watch an argument, because it sure makes you feel like a lawyer. It's a great feeling. Jared: I'm glad to say that I now know somebody who is a member of the Supreme Court Bar who may be getting a phone call from me in the near future. Duane: I'd be I'd be happy to sign your application, Jared. Jared: Unfortunately, it sounds like spouses of lawyers who are not lawyers can't come and sit with you in that line. So, they're stuck in the long line. Duane: That's the catch. Right. Jared: How is the long line work? Duane: It is just a first-come-first-served too. And I have heard that the line can start forming at 4:00 or 5:00 o'clock in the morning on OA days and maybe even earlier if it's a day that they're arguing case of particular importance. But other than that, it's just a first come first serve line. And, you know, how hard it is to wait in that line probably depends a lot on what the weather is like in D.C. Jared: Right. Right. It still sounds better than Black Friday at Best Buy. Duane: Well, yeah. It's better than that. Jared: And I might as well ask this question. It's more of a basic question, but not everybody will know. What's the court dress? Is there required dress code? Duane: You know, obviously, it's very formal for the lawyers. Everybody wears their best suit because you're wanting to make an impression. Jared: Absolutely. I bought a new one for our visit last October. Duane: Yeah. I brought a new suit for the argument. It wouldn't get Men's Warehouse as a sponsor of the show. There is a dress code for the audience, but I don't think it's as strict as you might think. But certainly, like ties aren't required or in that sort of thing. But, you know, just maintaining decorum. Jared: Right. Duane: On the dress, I thought I had mentioned, another thing that I did not fully appreciate, but the clerk and the Marshall and anyone who is arguing for the Solicitor General, they have a dress code. They wear morning coats, which is like a long formal coat, like you would wear maybe to a wedding or something. It's called a Morning Coat and more traditional dress and they all still wear those. So, I thought that was kind of interesting. Jared: Kind of the one thing that harkens back to olden days. Duane: Yeah. No, wigs, but Morning Coats. Jared: Definitely no wigs. Just nobody makes the same potential oversight you did when we visited in October. Where's the gift shop again, so nobody misses it on the way out? Duane: So, the gift shop is on the first level towards the back left side of the building. It's right across from the cafeteria. Jared: I mean, the first level almost feels like the basement a little bit. I mean, the most beautiful basement you've ever been in. But it feels like the basement compared to the main level. Duane: It does. You know, the first level is sort of the working level. The clerk's office is there, the gift shop, the cafeteria. But there is a lot of stuff on display there. There's the big sculpture of John Marshall sitting in his chair. So, there's a lot of stuff to see there, but the real action is on the on the second floor and where the courtroom is. And I think there are some days that you can't even get to the second floor if court is in session. But if court is not in session, you get up to the second floor and peek into the courtroom like we were able to on that trip. Jared: Very interesting. So, I have one last question about this. If you had the opportunity to argue this case yourself, would you have wanted to do it? Duane: Yeah, absolutely. I mean, I guess what appellate lawyer wouldn't.; right? Jared: Very true. No matter how nerve wracking it could be. Very true. Duane: Yeah. And certainly now, especially now, having been there and seen the process and understanding the process and seeing just how accommodating the court is and the clerk is would take away a lot of that nervousness that you would have if you had not been there. But the lesson to me was this is just another appellate court in some ways. In some ways, obviously, it's not. But in a practical matter, this is another appellate court. It's not an intermediate appellate court. But is it any different than a state supreme court? You know, it's very analogous. And I certainly see no reason why I couldn't have done that argument. And if I ever got the chance to do it, I wouldn't hesitate to do it. I think that it's something that we're trained to do as appellate lawyers and we just have to put aside the awe of what you're doing and say, �Yeah, this is this is an appellate argument. This is what I'm trained to do and let's do it.� I would love to do it. You know, the fact is I never really had the opportunity to do this one; it was never really an option, just based on the circumstances. But if the circumstances were different, I wouldn't hesitate. Jared: I think anybody listening to this podcast would probably be right there with you. Duane: Absolutely. Jared: All right. Did I miss anything about your trip to the U.S. Supreme Court? Duane: No, I think we've covered it. Like I said, it was just an inspiring experience. So, glad I had the opportunity. Jared: That's very cool. And congratulations for your trip and fingers crossed on the result of the unnamed case for which you were there for. Duane: Thank you. Jared: So, this is the fun part. Those of you who have listened to the podcast know that Duane often ends his podcast with a lightning round and putting his visitors on the hot seat and I get to turn the tables today. So, are you ready, Duane? Duane: All right. Yeah, turning the guns around. Already. First question, Oxford comma in your writing? Duane: Yeah, absolutely. I mean, I have gotten into a few Twitter arguments with people over this. I don't understand the reason not to use an Oxford comma. It adds clarity. It takes out the discretion. Absolutely. Jared: So, Duane and I are both college professors and our mythical spare time. And do you tell your students the same thing; Oxford comma always? Duane: Oh, yeah. Jared: Absolutely. Duane: Yeah. And you know, most of them are not in a position to argue. So, I'm indoctrinating them early. Jared: One or two spaces after a period. Duane: So, I addressed a little bit of this in the last episode. I am definitely two spaces. You know, I recognize that scene as archaic a little bit and the reasons date back to typesetting and typing and whatever. But to me, here's what I do. I put one space between a sentence and a citation that relates to that sentence and two spaces everywhere else. Jared: Mixing it up. I like it. Duane: I like the fact that it creates� the one space ties the citation to the sentence that goes before and the two spaces separate the sentences. I think it's an important visual spacing indicator and it makes your writing clearer. Jared: I don't think I've ever heard anybody answer that question that way before. That is a unique as unique proposition. I wonder if anybody will adopt that with you. Duane: You should adopt it. I think it makes a lot of sense. Jared: I'll consider it. But I'm going to save my official answer for the next time I come back and I'm the guest. Duane: All right. Jared: All right, West Law or Alexis? Duane: You know, I prefer West Law. But the firm has changed contracts back and forth over the years and I can use either one. But I like West Law and I particularly like the West Law Next web interface. It works great on the web, it works great on my iPad. If given the choice right now, West Law. Jared: All right, case name is underlining or italicizing? Duane: Always italics. I dislike underlying. I dislike underlining in titles. I will take underlining off of titles of documents. There�s been some studies that show and then underlining is not an aid to reading, that it makes it harder to read text that is underlined. I am not a fan of underlining anywhere. Jared: Fair enough. I know the answer to this question. Iphone or Android? Duane: Always iPhone. Jared: You and your Apple Watch. Jeez. For pleasure reading; paperbacks or Kindle? Duane: I always prefer a Kindle. Listen, I like paperback books and I like the feel of books. And sometimes, if I really like a book, I'll buy it in hardcover, just to have it. But when it comes to actually reading, I much prefer to read on a Kindle or these days on the Kindle app, on my phone or on my iPad. Jared: So when it comes to a writing style and we'll stick with appellate. Also, for those of you who don't know, Duane is a prolific writer and more than just a appellate world. But for appellate purposes here; for your writing style, do you have a role model that you tend to try to imitate or emulate? Duane: Sort of, I guess. And it doesn't really come from the legal world. But if I had to say that I've learned a lot from any particular author about style, I would say it's Ernest Hemingway. I like Hemingway's style a lot. He is very concise. He's very short. He's very to the point. He uses very plain language to create, you know, sort of pictures. He makes his thoughts clear without telling you what they are. And those are all things that I strive for in my writing. I try to be brief, concise to show every step of the reasoning, to get people to where I want to go and I'd like to think that that's influence in part by my reading and love of Hemmingway. Jared: Remind me again; how many pages was Old Man and the Sea? Duane: You know, I don't remember, but it's relatively short. And if you're interested in Hemingway and his style, that's the best place to start. Jared: So, that's it for Duane's podcast today of Issues on Appeal. Duane, thank you for letting me commandeer for a short while and interview you about your visit to the Supreme Court and learn a little bit about the mastermind behind this new podcast, which I love listening to and I'm honored to be a part of. Duane: Jared, thanks. Thanks for your time. Thanks for doing this. I will definitely have you back on the podcast some other time. We have a lot of other things that we could talk about and we'll do that at some point. Just remind the listeners, if they want to get a hold of you. How did they do that? Jared: Sure. So, again, I'm with DPW Legal in the Tampa Bay area. You can get me on my phone there at 813-778- 5161. My email address is jared@ip- appeals.co. Or I'm fairly active with the Florida Bar Appellate Practice sessions, so you can find me on their website there. I'm on social media. There aren't too many Jared Krukars around, much like your previous guests, Nick {indistinct 01:01:23} and Sarah Lulu. I mean, I'm pretty easy to find me on the bar or on social media; on Facebook or Twitter or LinkedIn. Duane: Yeah, all of my guests so far have pretty unique names, but yeah, you sure are easy to find and you're pretty active in The Appellate Twitter and that sort of thing. So, people can follow you and see what you have to say. Jared: I don't hide away too much, unfortunately. Duane: Well, Jared, thanks for being my guest or maybe for me being your guest; I'm not sure. Jared: Whichever way you want to call it. It's been a pleasure and I'm very glad to be part of it. Duane: Thanks. All right. Thanks to Gerard Krukar for being my guest or actually, my guest host on this week's Issues on Appeal podcast. Remember, podcasts are never legal advice and nothing that I say or anyone on the show says should ever be interpreted as legal advice for any particular situation. That being said, if you need legal advice, if you need the help of an appellate lawyer, I'd be happy to try and help. You can contact me at Issues on Appeal on Twitter or at my professional email D-D-A-I-K-B-R@shumaker.com. My contact information is always in the show notes that are available in your podcast player. Speaking of podcast players, I know that many of you were listening on an iOS device and many more of you probably want to. If so, you're probably using the Apple Podcast Player that everyone has pre-installed on their Apple devices. However, I would suggest to you that there are better alternatives. In particular, if you're using an iOS device, I�d recommend the free app, Overcast, which is available on the App Store. Try it and I think you'll like it. I'd love to hear your comments and suggestions on the show. Just send me an email or Twitter DM, let me know that you're out there and that you're listening. Please keep listening, be a part of the show and help me spread the word. I've got another great show coming up next week about appellate pro bono opportunities and how you can get involved. And it's a lot easier than you might think. And as always, thank you for considering this week's Issues on Appeal. 1 1