Why Joe Friday Wouldn’t Have Made A Good Appellate Advocate

The late Jack Webb, who played Sgt. Joe Friday on “Dragnet,” is perhaps best remembered for uttering this famous line: “Just the facts, ma’am.”  (Actually, according to Wikipedia, he actually said, “”All we want are the facts.”)  Whatever the line, appellate advocates would do well to ignore Sgt. Friday’s focus on the facts when they argue before an appellate tribunal.

One of the most basic truths about oral argument is that appellate judges don’t want to hear advocates drone on about the facts of the case.  The judges have read the parties’ briefs; the facts are in the briefs; advocates should focus on the legal issues!

I can tell other lawyers this until I’m blue in the face, but too often they do not listen.   Perhaps they will find this colloquy from a U.S. Supreme Court argument more convincing.  Keep reading until you get to Justice O’Connor’s question:

* * *

Chief Justice Rehnquist: We’ll hear argument next in Number 96-1569, Daniel Bogan v. Janet Scott-Harris.  Mr. Rothfeld.

Mr. Rothfeld: Thank you, Mr. Chief Justice, and may it please the Court:

I have two principal points to make this morning. The first is that State and regional legislators who are sued under section 1983 are entitled to absolute immunity if they acted in their legislative capacities. Local legislators who were sued under the statute should be entitled to that same absolute immunity if they acted in their legislative capacities. My second, and closely related point, is that–

Justice Scalia: I can’t hear you very well. I can’t hear you at all.

Mr. Rothfeld: –Sorry, Your Honor. My second and closely related point is that public officials at all levels of Government, regional officials, State officials, and local officials, do act legislatively, and therefore are entitled to absolute immunity when they propose legislation, vote for legislation, and enact legislation. Now, the facts–

Justice Breyer: Are you going to at some point address the court of appeals’ reason for address… for your losing, which I didn’t hear in either of the first two points, because I thought the court of appeals accepted both of those points.

Mr. Rothfeld: –Well, the court of appeals did accept that there is absolute immunity for actions that are taken in a legislative capacity, and we agree with the court of appeals’ decision on that point, a decision that I add was endorsed by every circuit.

I think… I will address the second point subsumed within my suggestion that legislators necessarily act legislatively when they propose legislation, enact legislation, which is what they did here.

There was a dispute in the court of appeals as to whether the legislation here was legislative in character within the meaning of the immunity doctrine, and I will get to that point.

As I say, the facts that underlie this are simply stated. Respondent was the Director of the Department of Health and Human Services of the City of Fall River, Massachusetts. The mayor of Fall River proposed a budget which eliminated a number of city positions–

Justice O’Connor: Well, I think we’ve read the facts. Can we get on to the issue?

* * *

Need I say more? 🙂



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