With great sadness I read of the death of advocacy in these pages on Dec. 23rd (I’ve Never Seen Anything Like It’: Miami-Dade Attorney Held in Criminal Contempt). Derrick Morales was given 40 minutes for his final argument, including 20 seconds for rebuttal. Apparently he uttered a few words over the critical time limit and was held in criminal contempt for “obstructing the administration of justice…”
Contempt is usually a toxic stain on a lawyer’s reputation, but in this case, it is more the red badge of courage.
The incomparable Clarence Darrow argued to a judge for 12 hours over three days to save Leopold and Loeb from the hangman. But the modern, efficient, time-pressed judge no longer sees any value in extended lawyer advocacy. The art is slowly fading away, being replaced by technology.
John Paul Stryker wrote a book on trial advocacy which he subtitled, “a plea for the renaissance of the trial lawyer” in 1954. Instead of a new flowering of eloquence, we are suffering the black death of silence. No longer is advocacy welcomed in our trial courts. It is treated as an unnecessary waste of time, or now, a crime worthy of condemnation and punishment.
I have a lot of empathy. I was once granted an entire three minutes by the Eleventh Circuit. And in another case, an undistinguished federal judge in northern Indiana declared a recess in the middle of my final argument, ordering the marshals to quickly shelter the jury from my words. I’m not sure if my argument was too good or too bad. At least I avoided imprisonment.
Why is there a time limit placed on final argument? Too persuasive? Too dramatic? Or too pedestrian? We are trial lawyers; we go to war with words. We have the verbal confidence to stand on our feet, articulate the facts, and marshal our arguments. We are able to speak with passion in a way that inspires people. The final argument is our primary weapon.
I don’t know what Derrick Morales said in those last few minutes of overtime but I picture it as Salman Rushdie did: “Language is courage; the ability to conceive a thought, to speak it, and by doing so, to make it true.”
Contempt is usually a toxic stain on a lawyer’s reputation, but in this case, it is more the red badge of courage.
The incomparable Clarence Darrow argued to a judge for 12 hours over three days to save Leopold and Loeb from the hangman. But the modern, efficient, time-pressed judge no longer sees any value in extended lawyer advocacy. The art is slowly fading away, being replaced by technology.
John Paul Stryker wrote a book on trial advocacy which he subtitled, “a plea for the renaissance of the trial lawyer” in 1954. Instead of a new flowering of eloquence, we are suffering the black death of silence. No longer is advocacy welcomed in our trial courts. It is treated as an unnecessary waste of time, or now, a crime worthy of condemnation and punishment.
I have a lot of empathy. I was once granted an entire three minutes by the Eleventh Circuit. And in another case, an undistinguished federal judge in northern Indiana declared a recess in the middle of my final argument, ordering the marshals to quickly shelter the jury from my words. I’m not sure if my argument was too good or too bad. At least I avoided imprisonment.
Why is there a time limit placed on final argument? Too persuasive? Too dramatic? Or too pedestrian? We are trial lawyers; we go to war with words. We have the verbal confidence to stand on our feet, articulate the facts, and marshal our arguments. We are able to speak with passion in a way that inspires people. The final argument is our primary weapon.
I don’t know what Derrick Morales said in those last few minutes of overtime but I picture it as Salman Rushdie did: “Language is courage; the ability to conceive a thought, to speak it, and by doing so, to make it true.”
6 comments:
He complains that he "was granted an entire three minutes by the Eleventh Circuit." Meh. Oral argument on appeal should be eliminated altogether anyway.
The problem is most judges are careerists and dont care about the justice system only obtaining power and status.
Oral argument is only granted in criminal appeals to give the government an opportunity to avoid reversal.
https://www.theguardian.com/us-news/2022/dec/22/ron-desantis-appoints-judge-abortion-girl-school-grades
Your Welcome
Ok. What idiot judge did this and held a lawyer in contempt ?
Roy is - as is often the case - correct. Judges feel we are wasting their time. In my last trial I was asked several times how long my closing would be. There was a look of concern on the judge’s face. I kept saying I was not sure but that I believed anything I could say in five minutes would be better than taking ten. Finally I said “maybe an hour “. The judge immediately said “ ok when do you want to be warned how much time you have left ?” I replied that I had never agreed to a time and would not do so. The judge then said they were setting it for one hour. I finished in 43 minutes. But would the world have ended if I took 65 minutes ? Most lawyers given the chance, flounder after ten minutes or so. It’s hard to speak and keep an audience interested for more than ten or fifteen minutes. Maybe time limits on jury trials will be next. Like chess each side will get three hours to speak and we will have to hit a little clock when we start and stop. And when we run out of time that is that.
OA is more egregious. Although In the 4 & 5 DCAs I find lately they are setting cases for 15 minutes a side -more than the 3dca allows- what the 11th does on a joint appeal is awful. Making three and four lawyers split up ten minutes when their client’s life is on the line. I don’t understand. We work on these briefs for the better part of a year. All the judges get are bench briefs from their Clerks and then they give us a few moments to make our post. Ridiculous.
"We are doing what is best for our stockholders." or "The jury won't be listening to you past 15 minutes so let's not bore the jury." In both cases, someone's rights are going to have to suffer.
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