A Double Bench-Slapping and Appellate Advocacy Basics

By William Peacock, Esq. on September 10, 2014 | Last updated on March 21, 2019

The case? Thomas Roque v. Natchitoches Parish School Bd., in which Roque is alleging that he was denied a school superintendent position because of race-based discrimination.

During oral arguments for the case, Roque's attorney David Broussard got a quick lesson in Fifth Circuit appellate advocacy, courtesy of Fifth Circuit Judge E. Grady Jolly and District Court Judge Lance M. Africk (sitting by designation) in the form of a double bench-slapping.

Why? One word: interrupting. (H/T to Above the Law and NMissCommentor)

The First Bench-Slapping

You can listen to the audio, from around the 7:00 mark to 10:30. Or, here is the transcript:

Judge Jolly: Let me ask you. Let me say something. Is it your theory of this case that the discrimination was in opening it up again?

Attorney: Yes, without voting --

Judge Jolly: No no no no no no no no --

Attorney: ... without interviewing or voting on the applicants, and reopening --

Judge Jolly:  You need to learn how to argue in the Fifth Circuit.

Attorney: Uh --

Judge Jolly: That is, you need to learn how to argue in the Fifth Circuit.

Attorney: I know how to argue in the Fifth Circuit. I've been doing it 40 years, Judge.

Judge Jolly: Well.

Attorney: I clerked for Judge Herbert Christenberry for three years. I think I know a little bit about federal courts. Go ahead and tell me, though.

Judge Jolly: No, I'm just telling you that whenever you argue in the Fifth Circuit, you need to listen to the judges instead of interrupting. We're the ones that decide the case. And we ask questions, we like to have answers. We don't like you to continue to rumble on. Now, with that said...

Attorney: [interrupting] I appreciate if it is reciprocal. When I'm making a statement, you interrupt me, you don't let me make my statement. I mean, is it reciprocal or not?

Judge Jolly: Well, go take a lesson in how to argue in the Fifth Circuit.

Attorney: Anyway, judge, we're saying this, it was the process and the procedure of reopening the applicants, to take in new applicants without voting on or even interviewing the candidates they had. And our client is saying it was skewed against African-Americans, because he had a decent chance of getting it the first time. Now, as I read Title VII, it says that you cannot use race as a factor in hiring individuals.

Judge Jolly: No kidding!

Attorney: Beg your pardon?

Judge Jolly (loudly): No kidding!

Attorney: And therefore, the evidence in this case, shows that the woman -- and I'm sort of relying on Judge Jones' case in the Dupree v. Sanders case, where her and Judge Higgenbottom wrote an opinion which had cert. denied, dealing with the cat's paw. The question is, is Ms. Hildebrand the cat's paw for the school board in this matter? Did she have sufficient control, or was she the primary thing? That is a jury question and we think the jury is entitled to hear that issue. That's all we're asking for is to let it go to the jury. The cat's paw --

Judge Jolly: Finally, you got around to an important point of law, and that is what's going to save you here, or get you to the jury, is the cat's paw theory. And that's the first time you've even mentioned it.

Attorney: It's in my brief judge, and my reply --

Judge Jolly: I'm talking about in your argument here, you've been ... anyway, go ahead.

Let's review the basics of appellate advocacy, both at Judge Jolly's suggestion and because we have a lot of law student readers.

Judges will interrupt. Judges can act like tyrants if they so please. As a wise visitor to the North Mississippi blog put it, "You argue before the judges, not with the judges."

I couldn't put it better if I tried. Now, let's return to the show.

The Second Bench-Slapping

Judge Africk: You know, I have to say this as a district court judge, that has these hearings in court almost every day. Honestly, I think you're being disrespectful to Judge Jolly, not that he needs a lawyer. But, you know, our job, and I can tell you sitting here, is to go ahead and focus in on certain issues that you may not know we need to focus on. But we're going to write the opinion. So, why you'd be antagonistic and say "well, Judge, you interrupt me, Judge Jolly," well, why would you say that when he's trying to help by getting to the issue? It seems to me you should be more respectful than that, because I wouldn't put up with it my courtroom, with all respect.

Exactly. Obviously, the judges are trying to address the applicability of the cat's paw theory and whether this case was properly disposed of without a jury.

(The cat's paw theory, by the way, is where there is no evidence that the person making an employment decision was biased, but the bias of another manager worked it's way into the decision. It comes from the fable of a cat and a monkey and some chestnuts.)

Judges decide cases on briefs. Rarely, there will be an issue that needs to be fleshed out further, and that's what oral arguments are for. Judge Jolly was trying to push ahead to narrower issues, but it took the attorney nearly nine minutes to get there -- an eternity in 20 or 30 minutes' worth of oral arguments.

Let's All Be Friends

Attorney: Well, I apologize to you Judge Jolly.

Judge Jolly: No, I'm --

Attorney: I'm very sorry, I was making a statement and you interrup -- I'm sorry, maybe my statement was irrelevant, and to that extent, judge, I appreciate you pointing it out to me.

Judge Jolly: You have no problem with me.

And just like that, with a qualified apology, everything is resolved. In reality, this is probably much ado about nothing -- the case is probably riding on the briefs. But if there was anything to be decided in oral arguments, that was a whole lot of time wasted on bitter back-and-forth, and a shocking lack of deference to an appeals court judge who, despite his snark, was trying to help.

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