How much do oral arguments matter?

Much has been said in the wake of the US Supreme Court’s decision today upholding (for the most part) President Obama’s health care overhaul, the Affordable Care Act. I don’t have a lot to add to the substantive analysis being done (though if you’re interested, SCOTUSblog has a whole host of coverage).

What I found interesting as an appellate practitioner was how this case provided the opportunity to emphasize the old adage that oral arguments rarely make that much difference to the eventual decision and can often be a poor predictor of how a case will come out.

The Wall Street Journal’s law blog touches on this topic today:

Thursday’s ruling on the health-care law proved, once again, that oral arguments can be a weak predictor of outcome.

In the ruling today, a divided court upheld the individual mandate as a tax, accepting the Obama administration’s backup argument. But at oral arguments, that issue — whether penalizing people for not buying health insurance fell within Congress’s taxing power– had a low profile during the March arguments.

The WSJ law blog fails to ask the bigger question, though — why do oral arguments rarely make much difference?

I suspect at least part of the answer to this question lies in how courts prepare for oral arguments. In general (though not every court works exactly this way), long before oral argument, a judge’s chambers is assigned the case. That chambers (the clerks in conjunction with the judge) reads all the briefs, does their own independent research, and then drafts a memo to all the other chambers discussing and analyzing the procedure of the case, each sides’ arguments, the pertinent case law, and makes a recommendation as to how the case should turn out. Then, all the other chambers review that memo in conjunction with the briefs and the pertinent cases. If some judges do not agree with the recommended outcome in the memo, they can write their own memo explaining their view of the case. There can also be informal discussions between judges. In some courts, like Washington’s Division 1 Court of Appeals, the judges will even meet before oral argument to talk about the case, their thoughts, and questions, though they don’t technically vote.

In short, a lot of behind the scenes work is done on a case before oral arguments even begin. And therefore most judges have an idea of how they think the case should come out before oral arguments even begin. So it’s the rare oral argument that actually changes a judge’s mind about the outcome.

Additionally, at oral argument, the judges are frequently responding to the arguments the lawyers’ make. If the lawyers at oral argument don’t focus on the issue the judges find dispositive, it may be misleading to rely on the questions and attitudes of the judges toward those arguments.

We probably won’t ever know fully what happened in this case and why for a long time, if ever, despite the rumors circulating that Chief Justice Roberts switched his vote at the last minute.

All of this simply underscores an important practice tip: the briefs in an appeal are far more important than the oral arguments. That’s something always worth being reminded of.



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I’ve been doing some clean up on the blog and wanted to call your attention to one thing. With all the press the US Supreme Court has received lately, I’ve added a link on the Blogroll to the go-to website for all things Supreme Court: Scotusblog. Scotusblog (SCOTUS is short for Supreme Court of the United States) is widely considered THE place to go for information about US Supreme Court cases and is consulted by many in the media, as well as the legal profession.

The blog, originally started by two appellate lawyers, now employs several people including Lyle Denniston, the dean of Supreme Court reporters, who’s been reporting for over 50 years. The blog also does a neat series called Plain English, breaking down cases so lay people can better understand them.

If you’re interested in any of the recent US Supreme Court cases, Scotusblog is the place to go.

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Lawyer solicitation of clients — ethics vs. morality

Lawyers are businesspeople. Trial lawyers may like to help people, but we also have to make money to stay in business, just like any other business. So marketing and advertising are important. But how far can lawyers go to solicit potential clients?

Awhile back, on one of the listservs I am a member of, there was some discussion about lawyers who read newspaper articles or obituaries and send letters to victims and their families soliciting business. Or lawyers who get their hands on police accident reports and send letters to the victims. There was a lot of disgust expressed about these kinds of tactics. But is this kind of solicitation actually prohibited?

Lawyers are governed by the Rules of Professional Conduct (RPC’s) which put limitations on things like lawyer advertising and client solicitation. For example, RPC 7.3 governs contact with prospective clients and generally prohibits direct or third person solicitation, whether in person, live telephone or real time electronic contact. On the other hand, written, recorded or electronic communication is allowed unless (1) the prospective client makes it known he/she does not want the solicitation, or (2) the solicitation is coercive or harassing. (I’m paraphrasing the rule because it’s a long one.)

Why do we prohibit in person, live direct communication, but not written communication? The thinking goes, our lawyer charms are harder to resist in person and an individual may just hire the first lawyer who speaks with her, whereas with written or recorded solicitation, a potential client has the time to make a reasoned decision about which lawyer to hire. It seems a little silly because the rule assumes we as lawyers are oh so powerful and lay people are powerless to resist us. But there is some truth to underlying rationale because it’s much easier to think through a decision when you aren’t faced with someone trying to convince you to hire them.

As you may have guessed from the rule, though, sending a letter to a victim of a car crash who’s name and contact information were pulled from a publically available police report is fully within the bounds of the rule (as long as the victim hasn’t already told the lawyer she isn’t interested in that contact). I think the more important issue, however, is not whether this conduct is allowed, but whether lawyers should engage in this kind of solicitation.

We as trial lawyers already have a bad reputation as “ambulance chasers” who will do just about anything for the almighty dollar. We have this reputation, in part, because there are lawyers willing to do just about anything to get business in the door. And these kinds of tactics — soliciting accident victims out of the blue — hurts our reputation more. I would guess that receiving a letter like that for some probably just adds insult to injury for those accident victims who probably feel like their privacy has been invaded.

Yet, there are lawyers who use these tactics. And I’m guessing they use them, at least in part, because they are successful.

These kinds of discussions about what kinds of solicitations are appropriate touches on broader philosophical differences. Do lawyers have any responsibility to the profession (after their responsibilities to their clients)? Or, do lawyers have only a responsibility to themselves (after their responsibilities to their clients)? I think how lawyers answer these questions will tell you a lot about the kind of person they are.

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My How Time Flies

It’s been 10 (!!) months since my last post, and I have no idea where the time went. Yikes! So I’ve decided to rededicate myself to the blog and hope to post weekly. I’ve also let go of the idea that I should keep the blog limited to only a couple topics. My head doesn’t really work that way, so I’ve decided to stop fighting my urge to post about other legally-related topics. You, dear reader, can expect a little more randomness.

So what’s on my radar? Well, it’s election season. And while the presidential election will naturally take up most of the headlines, there are other, under-the-radar races that have a big impact on the citizens of this great state. For example, there are 3 Washington Supreme Court elections, and there’s a good chance 2 of them will be decided in the primary in August. It’s hard to find good, reliable information about judges, and it’s hard for the general public to know what makes a good judge. So I plan to post my thoughts about what I look for in judicial candidates and my thoughts on some of the races.

Similarly, we will be electing an Insurance Commissioner and a new Attorney General this year. Those are important races for consumers because the Insurance Commissioner regulates insurance companies and penalizes them when they’ve broken the law. And the Attorney General enforces laws designed to protect consumers. I’ll have some thoughts on those candidates, as well.

On a completely different note, there are several insurance cases at the Washington Supreme Court that are noteworthy because of their impact on consumers. If my timing is good, I will hopefully be able to blog about the opinions.

Up next, though, is a post about lawyer ethics and client solicitation.

I have no doubt there will be other things that pop up, too. So here’s to being back in the blogging saddle!

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Regence fined $100K for denying coverage for removal of birth control

Today, Washington’s Insurance Commissioner, Mike Kreidler, announced a $100,000 fine levied against Regence for its failure to pay for procedures to remove IUDs. Regence paid for the insertion of the device, as long as it was prescribed by a doctor. However, the problem arose when women wanted the devices removed — in that case Regence refused to pay for the procedure unless it was “medically necessary.” So if a woman decided she was ready to have kids and wanted the device taken out, Regence refused to cover the procedure unless she could prove that procedure was medically necessary to her health. In other words, really easy to get the implantation of the device covered, really hard to get the removal of the device covered.

So women were forced to either pay for the procedure themselves out-of-pocket, or forgo having it removed if they couldn’t afford the procedure.

Kind of outrageous.

Regence ended up denying 984 claims to remove IUDs between 2002 and today. And it wasn’t until one woman called the Office of the Insurance Commissioner in April 2010, that the OIC began an investigation resulting in the fine. Regence has now reprocessed all the claims and paid them, totaling about $149,000. Regence also must pay 8% interest to all policyholders whose claims were denied.

The Insurance Commissioner’s Order details how Regence violated the law. WAC 284-43-822 regulates the unfair practices relating to health care.

Section (1) prohibits any health carrier from restricting, excluding, or reducing “coverage or benefits under any health plan on the basis of sex.”

Section (2)(a) requires all carriers who provide comprehensive prescription coverage to not “exclude prescription contraceptives or cover prescription contraceptives on a less favorable basis than other covered prescription drugs and prescription devices.”

And finally, Section (2)(b) prohibits carriers from placing limitations or restrictions on “prescription contraceptives that are not required or imposed on other covered prescription drugs and prescription devices.”

By making it much harder to get coverage for the removal of IUDs, Regence violated all three provisions, and they are paying the price. Kudos to Mike Kreidler and the rest of his team at OIC for sticking up for the rights of women in this state.

The sad part is that most women who had coverage denied didn’t do anything about it. Only 3 of 984 women even bothered to appeal the denial of coverage. And it wasn’t until April 2010 — 8 years after Regence began denying coverage — that one of the women called of the Insurance Commissioner’s Office to complain.

I think the lesson here is that just because your insurance company denies your claim doesn’t mean that the denial was right under the policy or under the law. So if you feel that coverage has been unfairly denied, stick up for your rights — appeal the denial and file a complaint with the Insurance Commissioner.

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How much does it cost to take your case all the way to the US Supreme Court?

If you’re the video game industry successfully suing the state of California to challenge the constitutionality of its law prohibiting minors from buying violent video games, the answer is about $1.15 million. According to Bloomberg BusinessWeek, the attorneys at Jenner & Block, who represented the video game industry in Brown v. Entertainment Merchant’s Ass’n, asked the high court recently to order the state of California to pay those legal fees.

Among the goodies in this cost bill was $18,760 for the lawyers to work on the first practice argument, $21,928.75 for the second practice argument, and $12,698.75 for the third practice argument.The lead partner on the case billed a cool $250,000 for his time alone.

Oh, and also $2,725 for a junior partner to attend the oral argument and have lunch with the client afterward.

Ouch for the state of California and its taxpayers. It sounds to me like at this point this is simply a request by the winning party, and I’m assuming the state’s lawyers will be vigorously objecting to some of these items.

I’m equal parts appalled and in awe. I have enough trouble feeling bad about the hourly rate I charge for my time on the few hourly cases I have — I can’t even imagine what I’d feel like if I was billing out at the partner’s hourly rate, which has to be at least $600 per hour. Who’s worth that?


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Does wishing a judge happy birthday on Facebook count as ex parte conduct?

Social media presents all sorts of cool, interesting, interactive marketing opportunities. For lawyers and judges, though, it also presents all sorts of pitfalls because of the constraints of the ethical rules governing their conduct. The policy underlying these rules is that lawyers and judges have a special responsibility to ensure the independence and integrity of the justice system. If people lose confidence in our system and the rule of law, then people will stop following laws, and we slowly slip toward anarchy and every person for themselves.

In Washington state, lawyers are regulated by the Rules of Professional Conduct (RPC) and judges are regulated by the Code of Judicial Conduct (CJC). Both the RPC’s and the CJC’s prohibit lawyers and judges from engaging in ex parte contact. A lawyer for one party cannot communicate with the judge outside the presence of the lawyers for the other parties on a matter related to the lawsuit at issue. The rule is designed to keep all parties on the same footing and to protect from the appearance that the judge favors one party over the other.

These rules create all kinds of problems for lawyers and judges in social media land. For example, can lawyers and judges be Facebook friends? On one hand, judges are people and allowed to maintain real life friendships with lawyers. On the other hand, it might look a little improper when a judge is publicly Facebook friends with some lawyers and not others. Some states, like Florida, have addressed this problem simply by prohibiting judges and lawyers from being Facebook friends. But what does it mean to be a Facebook friend in this day and age when people have, literally, hundreds of Facebook friends? And what happens when a judge happens to be Facebook friends with, not one of the lawyers for a party, but one of the major witnesses?

This latter question was addressed just a few days ago by the Supreme Court of South Dakota. In Onnen v. Sioux Falls Independent School District, the plaintiff was terminated from his job as a registrar. Onnen appealed through the administrative level and after those appeals were denied, he filed suit arguing he was wrongfully terminated (the reasons why are not important here). The judge held a three day hearing, after which he affirmed the decision to terminate. Onnen discovered after the decision that one of the major witnesses for the school district was Facebook friends with the judge and had wished the judge a happy birthday on his Facebook page while the case was pending. Onnen asked for a new hearing based on this ex parte contact between the witness for the school district and the judge. That request was denied.

The South Dakota Supreme Court affirmed the decision to terminate and the denial of a new hearing. The court held that by definition, the happy birthday post was not about a matter related to the court action. In other words, communication is prohibited only where it concerns something that is in front of the judge or about to be in front of the judge.

The Court went on to hold that even if the happy birthday post was considered ex parte communication, there still would not be a need for a new hearing because the character of the communication was harmless. A new hearing is warranted only where “the adverse party is prejudiced by an inability to rebut the facts communicated and if improper influence appears with reasonable certainty.” Because there was no information communicated to the judge and the judge stated he did not personally know the witness nor did he connect the post to the witness, there was no improper influence and no need for a new trial.

I think this decision was the only correct one. Think about how many times a happy birthday message gets posted on Facebook. As Seattle lawyer Venkat Balasubramani said:

If any modern day communication is more inconsequential than a “happy birthday” post on Facebook, I’m not sure what it is. We’ve all seen, at one time or another, Facebook’s reminder that it’s our acquaintance or friend’s birthday and have taken the two seconds out of our busy web-surfing schedule to wish the person happy birthday. Both the sender and recipient know full well that this is about the most impersonal birthday gesture possible in modern day society.

If this decision had gone the other way, the implications would be staggering. Any time a judge stopped to chat with a lawyer — even just to say “Hi, how are you?” — she would be in danger of having any decisions involving that lawyer reversed. Our already overburdened court systems might collapse from the sheer number of complaints about this kind of communication. Judges would then have to isolate themselves even more than they already do, which would lead to an even-more-removed judiciary.

Thankfully, the South Dakota Supreme Court recognized the happy birthday post for what it was — nothing more than an impersonal, meaningless gesture.

(h/t to Venkat Balasubramani over at Eric Goldman’s Technology & Marketing Blog, linked above. In the interests of full disclosure, Eric Goldman was my Contracts professor in law school.)

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