The Delphi Murders: Richard Allen Goes to the Indiana Supreme Court: Appellate Attorney George W. Hicks Discusses Oral Arguments

[00:00:00] Content Warning This Episode Contains Some Discussion of the Murder of Two Girls As we all know, there will soon be oral arguments before the Indiana Supreme Court concerning the Richard Allen case.

[00:00:13] But what exactly are oral arguments anyway? How are they structured and why do they even have them? How much pressure do they put on the attorneys in the case? And how do the lawyers prepare for such a high-stakes argument?

[00:00:25] After all, if an attorney makes an error, it could have fatal consequences not just for their case, but perhaps for their entire career. To get answers to those questions, we turn to George W. Hicks Jr.

[00:00:39] George is a partner in the Washington D.C. and the Dallas offices of Kirkland and Ellis, and he has extensive appellate experience, experience which, as you will hear, includes successfully arguing a case in front of the Supreme Court of the United States.

[00:00:55] My name is Ania Kane. I'm a journalist. And I'm Kevin Greenlee. I'm an attorney. And this is The Murder Sheet. We're a true crime podcast focused on original reporting, interviews and deep dives into murder cases. We're The Murder Sheet.

[00:01:10] And this is The Delphi Murders. Richard Allen goes to the Indiana Supreme Court. Appellate Attorney George W. Hicks discusses oral arguments.

[00:01:20] The reason our audience is currently so interested in the issue of oral arguments, of course, is this case of Richard Allen that has become the Supreme Court of Indiana on a writ of mandamus. I just wonder if you had any thoughts on that?

[00:02:20] Well, I think that it's a very interesting way that it is before the Indiana Supreme Court. So typically a case gets before any state Supreme Court, including the Indiana Supreme Court, after the case has essentially finished in the trial court.

[00:02:39] So there's been a verdict or there's been sort of final judgment. Then it goes to an intermediate court of appeals and there's a decision by that court. Then the losing party in the court of appeals asks for review by the state Supreme Court.

[00:02:55] So here the Indiana Supreme Court. And so it's sort of like a multi level process here. However, there as you mentioned, it's called a writ of mandamus. And that's a very unusual procedural mechanism by which you can go straight from a trial court proceeding that isn't even finished.

[00:03:18] There is no final judgment and go directly to a state Supreme Court, the Indiana Supreme Court here. And it's usually a more expedited proceeding.

[00:03:32] And usually the state Supreme Court will only step in to decide that issue if they think that it really is an important issue that needs to be decided because otherwise they would say, look, wait until the case is over, then bring your appeal to the court of appeals.

[00:03:51] Then if you lose, you can ask us that this is a very different situation where.

[00:03:57] Where the defense has gone directly to the Indiana Supreme Court and even more unusual, the Indiana Supreme Court has decided to hold oral argument on it, which means that at least facially they think there's something there or maybe more precisely.

[00:04:15] They think that there's an important legal issue here that needs resolving one way or the other, whether it's for the prosecution or for the defense. Can you tell us a little bit about yourself and your legal background?

[00:04:29] Sure. So I have been practicing for about, gosh, I'm on up on 14 or 15 years. I am actually originally from Indiana, Indianapolis, Indiana to be exact, born and raised there 18 years and then went off to college, off East.

[00:04:51] And didn't really have any plans to go to law school then. So I went down to New York City for a year and did some investment banking and made it a little bit in that and then decided that I really didn't like that.

[00:05:06] Went down to Washington, D.C. and I worked at the Department of Justice as a paralegal for a year to sort of dip my toe into the legal world and found that I really liked it.

[00:05:17] Took the LSATs somewhere in there, went back up to Boston for law school and really took to that and really enjoyed it and ended up doing a clerkship after law school, which as some of your audience may know is something that some folks do after law school to work for a judge

[00:05:40] and get a real inside baseball understanding of how courts work. And I happened to clerk on the District of Columbia Court of Appeals, that's federal court that hears peals from the federal district courts, clerked for a judge named Janice Rogers Brown.

[00:06:00] After that, I did another clerkship this time for Chief Justice John Roberts at the Supreme Court of the United States.

[00:06:10] And he would want me to make sure that I called it the Supreme Court of the United States, not the United States Supreme Court, because that is actually its official name.

[00:06:19] I did that for a year, which is pretty typical to do a clerkship just for one year, particularly at a federal court of appeals or the Supreme Court. It's a, as you can imagine, it's a pretty demanding job and it's almost 24 hour, seven days a week job.

[00:06:38] So one year is about most that anyone can have last there. And then I actually stayed in Washington DC and went off to practice and fell into litigation and specialized a little bit more in appellate litigation.

[00:06:56] So I predominantly since starting out after my clerkships in 2007 have predominantly done appeals.

[00:07:05] So that means that I typically do work in the courts of appeals, whether it's in the federal courts of appeals or the state courts of appeals, going up to the United, the Supreme Court of the United States, also the state Supreme Court.

[00:07:23] So obviously every state has its own Supreme Court. That is at the top of its system and the Supreme Court of the United States is at the top of the federal system.

[00:07:33] And I don't do a lot of work in trial courts per se, in the sense of arguing before juries or going out and doing discovery or that sort of thing or talking to experts.

[00:07:49] What I will do in the trial courts is work on motions, particularly dispositive motions that have to do with excluding expert seeking summary judgments, maybe asking for judgment as a matter of law after this Ben and Jerry trial, because those are all sort of questions that

[00:08:06] implicate legal questions, less so factual questions. So I guess if I had to put a put a summary of what it is I do it's it's typically legal type questions and less so factual type questions.

[00:08:21] So it's going to be stuff like is a defendant entitled to the the counsel of his choice as a legal question not did so and so do it or not do it that sort of thing.

[00:08:33] What sort of experience do you have actually doing oral arguments. I have pretty extensive experience I have, I have to think about how many oral arguments I've done I mean it's, I've argued at the Supreme Court of the United States, successfully, I have done maybe 30 over 30 arguments

[00:08:54] in the federal courts of appeals have argued before district courts have argued before bankruptcy courts. So really all levels of the system, but predominantly predominantly in the courts of appeals and have been doing that.

[00:09:12] Oh my gosh for over 15 years I guess by this point haven't made it back to Indiana to live but always proud to be from there.

[00:09:22] For our listeners who may not be familiar with with our legal system or may not have that familiarity with those oral arguments. Could you describe how they typically are how they proceed them, you know what exactly they do just kind of as a basic summary.

[00:09:37] Sure. So I think to give an answer to that requires explaining a little bit about the appeals process and the appellate process because it's very different from the trial process or what you often see in movies or on TV shows obviously

[00:09:54] shows even the trial process is very different than real life but the appellate process is even more different than trial process so when you get to an appeal, whether it's before a court of appeals or a Supreme Court, you're not really typically dealing with fact issues in the sense of did this or that happen or

[00:10:19] not you know did this person intend to do that or not what you're typically dealing with our legal questions. So you kind of take the factual record as a given and the factual record would have already been developed in the trial court below that could have been through discovery

[00:10:39] there could have already been a trial there could have already been a jury verdict and depending on what happened in the trial court and what the decision was that's pretty much the factual record that you're stuck with.

[00:10:54] There are there are not new facts at the appeals level. And that's pretty important. So there's no there's really no witnesses at the appeals level. There's no experts. Nobody's taking the stand.

[00:11:07] And there's no jury. All there really is is the factual record that already existed below and then there are all the legal questions. And so the legal questions are going to be things like okay, let's assume that the facts are what they are.

[00:11:25] And based on those facts is there liability for something you know you can try and come up with an example off top my head. But you know suppose that you have a discriminated employment discrimination case, and you and has been established below in the trial court that the plaintiff who is brought suits

[00:11:49] knew about the the discrimination in 2021. And it's now 2024. And the question is so there's there's no dispute about the facts we the trial court has already determined that the plaintiff knew about the injury to him on January 1 2021.

[00:12:12] But the only question now is okay. Does that allow that person as a matter of law to bring a lawsuit in 2024. If, let's say the statute of limitations was two years, but they have an explanation for why there should be an exception to that maybe, you know, maybe the defendant

[00:12:34] fraudulently concealed that fact or something like that so there's no dispute about when about the facts there's no dispute about when the plaintiff knew something, when the defendant knew something the only question is given those facts.

[00:12:47] Can this lawsuit proceed. So those are the sorts of legal questions that that judges are deciding at a court of appeals now they could be deciding very rarely did, did the lower court get the facts right, because usually in a lower court there's one person's version the plaintiff's

[00:13:05] version or the state's version and then there's the defendant's version and a jury or a judge or somebody decides which which version is correct in their minds. And usually that is pretty solid when it goes up on appeal, but you can still you can still challenge that to say look there was just no

[00:13:24] evidence to support the jury's finding that you know that the plaintiff knew about this on January 1, 2024. But typically what you're going to be arguing at a court of appeals are going to be questions of law, and the way that those are set up is so you've got your decision

[00:13:46] in the trial court. Somebody brings an appeal, and there are all sorts of rules and requirements about whether you can even bring an appeal at a certain time. So not every decision by a trial court can just be immediately appealed, because the courts of appeals don't like to deal with what they call piecemeal

[00:14:03] appeals. They don't want to they don't want to deal with 20 different appeals from one case, they'd rather pretty much the whole case go all the way through. And then at the end, there will be an appeal. And now there are exceptions to that. And one of them we'll talk about today. But typically, once you've got your decision that has been appealed to a court of appeals.

[00:14:24] It's a pretty straightforward and streamlined process. The party that's appealing was typically called the appellants sometimes called the petitioner, but usually called the appellants files a brief. And that brief contains all of the arguments for why the lower court got it wrong. And then the other side who is called the appellee, sometimes called the respondent, but usually called the appellee will get to file its

[00:14:50] brief that explains why the lower court got it right, and why the opening brief is wrong. And then typically, the first party, the appealing party again the appellant will get to file one more brief that's called the reply brief. And so you've got the opening brief, the response brief and the reply

[00:15:10] brief. And then after that, it depends on the court and the case, but generally, the court will then have oral argument. And it's based on the briefing that it got in addition to the record that was established below. So remember, I referred to that factual record. That's kind of in place. And then you've got the briefs by the parties.

[00:15:33] And then you're going to have oral argument, usually. And after oral argument, typically the court will issue a decision within a few months. Sometimes it can be faster than that. Sometimes it can be longer than that. Sometimes the court will ask for more briefing.

[00:15:51] Maybe an issue came up during oral arguments that it wants to know more about, but that's typically the process. It's a lot more streamlined and procedurally consistent, I guess, is the way I would say, at any court of appeals, including a state Supreme Court than it is in the trial court. Trial court is very free-wheeling.

[00:16:11] There's a lot of things that are happening. Things move really fast. Court of appeals, it's pretty much opening brief, response brief, reply, oral argument, decision.

[00:16:22] I think one question a lot of people might have at this point is why even have the oral arguments? Why aren't those briefs enough? What is the court looking for?

[00:16:31] It's a great question. And often courts will not often, but it is certainly the case that a court won't have oral argument after it receives briefing. That's especially the case at the intermediate court of appeals, whether it's in the federal system or in a state system.

[00:16:49] Most states and the federal government have three layers. They have the trial courts, then they have courts of appeals, and then they have the Supreme Court at the top. That's how the federal system is. That's how something like all but three states are.

[00:17:05] So at the intermediate level, court of appeals, you do actually have a fair number of cases that don't have oral argument because you have a right to an appeal if you've lost.

[00:17:17] But sometimes, and often the case, you really don't have much of an appeal. And so the court doesn't need oral argument. It can pretty much make the decision based on the briefing.

[00:17:26] But there are certainly cases and whether it's higher profile cases or of course cases that just raise issues or arguments where it would be beneficial in the court's view to hear from the lawyers and to be able to ask questions and to be able to understand the case better because something that differentiates the courts of appeals.

[00:17:53] And I include Supreme Courts in that from the trial courts is court of appeals is making a decision not only for that case that is before it, but it's going to be setting up precedence and a precedent is a decision that means that it's going to be used in other cases, both by that court and by other courts and by other lawyers and parties in other cases.

[00:18:20] So when a court of appeals is writing a decision or an opinion, it has to be thinking not just about the facts of the case before it. And who's going to win that particular case it has to be thinking about the broader ramifications of the legal questions that it's writing.

[00:18:39] And as a result, many times it does need to ask the lawyers very specific or targeted questions about their case. But also, okay, if I rule for you, or against you, what does that mean for other cases? What does that mean for the law in general?

[00:18:58] What does that mean for this legal issue? Can you come up with a limiting principle for what you're saying? Are we going to open a can of worms here? You'll often hear a judge ask something like, if I were to rule in your favor, how would I write an opinion?

[00:19:13] Yeah, walk me through it. And so that's one of the reasons a court might have oral argument and it's also valuable to the attorneys to be able to either guide the court towards a preferred result or if you hear questions that suggests that your case is in trouble to steer the court away from them.

[00:19:33] In a minute, we're going to start asking you about how an attorney like yourself will prepare for an oral argument. But before I do, I wanted you actually wrote the terrific article on that subject. And in that article, you had a line that if I were an appellate attorney, I would find more chilling than anything in Stephen King.

[00:19:54] And I want to read this line. You wrote, a single stray statement could mean for your client the difference between victory and defeat, and for yourself, the difference between a promising professional trajectory and something quite different. How on earth does an attorney like yourself deal with that sort of pressure?

[00:20:16] That is chilling. That's what I'm buying. That's awful. That's real true crime. Well, I think that it is true and I stand by that statement. And because one of the challenges of appellate advocacy is that there's really no margin of error.

[00:20:39] You are up there and you are making statements on the public record in cases that by that point have usually gained a little bit of profile. And you are also making statements that as I alluded to before, are going to be used not just in your own case, which is, you know, if you say something wrong, bad enough.

[00:21:04] But you might say something that establishes, that is used to establish a precedent that just undermines maybe your clients broader interests or the industry's broader interests or, you know, the class of individuals broader interests in a way that obviously all arguments are even in the trial courts and jury arguments

[00:21:28] and etc. are on the record and our public. But the fact that you're doing it in a court of appeals that is going to be writing a decision that is not just for your case, but for all attorneys and all judges and all jurisprudence really does kind of heighten mistakes.

[00:21:48] And for that reason, there's really no substitute for and we can and we'll go into this about preparation but there's just no substitute for preparation. There's this is not the place to sort of make stuff up or or to try to kind of

[00:22:07] elide a question that you might be asked sometimes you just have to say I don't know the answer to that question your honor because that's a better answer than trying to estimate something or giving giving your best guests and having that be

[00:22:25] very unfortunate, even if inadvertent admission or concession. So yeah I mean there's there there's certainly there is definitely an aspect of having the spotlight on you and and having your arguments have to be prepared in a way that is different than when you're arguing to a jury, or even to a judge in a trial court.

[00:22:53] So given how important being prepared is, can you talk us through what prep work looks like for an attorney getting ready to make one of these oral arguments just given how important it is to really be precise and and on the ball.

[00:23:07] Well, there is no substitute for thorough exhaustive preparation. I think there you have to be familiar with and understand a number of different aspects of your case in the law so number one, you have to know the record cold.

[00:23:27] And when I say the record, I'm referring to the factual record facts so what what did that what does the contract say what does provision Roman to dash seven sub subsection B say what does subsection E say how does it relate to Roman five

[00:23:45] I mean you need to know that contract cold you need to know the facts of the accident cold you need to know every single thing that you can and keep it all in your mind and be juggling in and have a facility to be able to immediately go to the page in the record

[00:24:05] So when the judge says, Oh, I, what does that subsection say exactly. I don't think the language says that you want to be able to know exactly where to go and be able to point out to the judge that he or she is mistaken about something or that you do know where it is.

[00:24:24] Where it is and when you have a facility with the record I think it also gives you a lot of credibility with the judges. I've seen a lot of times when you have a question from a panel of judges about something in the record, because they don't know the record they've they've got

[00:24:43] They've got dozens of cases before them so they're looking to you to assist them in the record and there's almost nothing worse than that 30 second pause where somebody is trying to flip through a binder trying to find the provision that the judge was asking about.

[00:25:00] And then the pause gets longer and everyone in the courtroom starts kind of fidgeting and the pause gets longer. And you can see the nervousness just taking over the lawyer, you don't want to be that person you want to have the record.

[00:25:17] If not in your head always then at your fingertips, but then that's just the first part then you need to know the law.

[00:25:24] So you need to know everything about the cases in that area of the law, the cases that you have cited in your brief, the cases that the other side has cited in its brief you need to know how good your cases are and you need to know their weaknesses and be ready to anticipate any questions about possible

[00:25:46] cases in your citations and you need to be able to do the same affirmatively and proactively with the cases cited by your opponent, but you also need to know it's not just a case of memories of memorizing your cases in their cases.

[00:26:02] You really have to have a fluency and a facility with that whole area of the law because the judges are not as likely to ask sort of factual or historical questions about a case because they've read the cases that that's their playing field.

[00:26:20] They know that stuff. They need your help on the record. They don't need your help as much on the cases, but they're going to press you on the cases because again, they're trying to figure out how does your case and a decision that we're going to write in your case.

[00:26:32] They're trying to figure out how does your case fit within the landscape of existing law and if we're going to take it one step further than the existing precedent. How does that work with the cases you've cited or if we're going to scale it back.

[00:26:47] So you have to have a, you know, almost sort of facility to kind of do some results and back flips with the case law and be able to speak fluently about it in a way that isn't just regurgitating but it actually is showing that you understand this area of the law and you can help guide the judges to the right place in the law.

[00:27:12] So what kind of a tone do you try to strike conversationally with the judges? I, in everyone's practice is different. I certainly try to take exactly a conversational tone and to speak with the judges in a way that gives them confidence that you know what you're talking about.

[00:27:37] And when you can speak conversationally, almost like, hey, I'm the expert in this area of law. You're also experts, maybe not in this area, but we're a bunch of people here who talk about the law.

[00:27:51] So let's talk about it. Let's talk about this case and that case and, and I'm not just going to sort of answer a question that you have and then wait for your next question.

[00:28:03] I'm going to take your question. I'm going to answer and then I'm going to kind of move on to a theme that I wanted to talk about that your question raises, your honor. That's a good point.

[00:28:12] And that brings me to another thing that I want to say. So I think one of the skillful aspects of appellate advocacy is not just to catch the ball and throw it back, but it's to engage in a broader conversation with the judges in a way that keeps them engaged

[00:28:32] and also helps you keep control of the conversation so that maybe you're not really letting them get an opportunity to ask a question that you might be concerned about. And you're always kind of keeping it, you're always kind of keeping it on your playing field.

[00:28:52] While of course still you're not going to cut them off and you want to give them opportunities to ask questions, but sort of in the same way that we're doing right now.

[00:29:01] I mean, you asked a question and every time you've asked a question, I've given you an answer, but then we kind of talk about things a little bit more and you don't want to be long winded, of course.

[00:29:11] And you want to answer the question, but you also want to be able to do it in a way that is always advancing your position before the judges.

[00:29:22] Is it a good idea when it comes to the weak points or possible questions you don't want to get to in your argument to identify what those may be and what the kind of holes in what you're saying are going into it?

[00:29:35] And is that a better way of like dealing with it, knowing what the other side is going to bring up and being able to anticipate that in any way? I think that it depends sometimes on first who goes first.

[00:29:49] So sometimes you're going to be the appellee or responding and the other side is going to go first. And so you're going to have an idea already of what the judges are thinking about the other side's case, but also your case based on the questions they're asking.

[00:30:06] And so if you're in that position, you kind of make a judgment call on the fly when you go up and give your argument.

[00:30:17] If you want to start out rebutting some of the points that seem to land a little bit more with the judges, I generally wouldn't do that. I wouldn't sort of start off kind of with your foot in the bucket.

[00:30:33] You want to be able to give your strong affirmative argument, but if you see that there is something that is troubling one of the judges,

[00:30:44] then you do want to be able to pivot to that and address that because if it goes unaddressed and you're just talking about your affirmative points over and over for 10, 15, 20 minutes,

[00:30:54] you've kind of done yourself a disservice because you know there's something out there that at least one judge is concerned about. Now, if you're going first, you're going to make probably more of an affirmative arguments,

[00:31:07] but you already know based on the other side brief what some of their stronger arguments might have been. And so you might end up weaving that into your affirmative argument.

[00:31:21] You might sort of pause and, you know, if you think that you're kind of made your point on your affirmative points,

[00:31:29] you then say, you're honored that I do want to address what I think are three points that the appellee tries to make in its brief that just don't match up with the case law or something like that.

[00:31:42] Or of course you can just wait for a judge to bring it up him or herself. It kind of just depends on the quality of the briefing and the arguments and whether you think that there's something that a judge is going to want to know.

[00:31:56] And so it's better to preemptively raise and rebut that on your own terms rather than to have a judge ask it in a more pointed way.

[00:32:03] Is it useful to have practice sessions either formally with a loop for it or just informally talking with your colleagues or spouse or whoever?

[00:32:13] So I think that there is no better preparation than doing a moot court, at least one moot court as closely in style and formats and substance as it will be to the real thing.

[00:32:28] There's no substitute for having people who can be mooters, so mock judges and who are coming to the case who don't know anything about the case just like real judges.

[00:32:42] I don't find it as useful to have people who worked on the case also be your judges because they know the ins and outs and they know the strengths and the weaknesses.

[00:32:53] I think there's no better preparation than to have three other lawyers, ideally appellate types or people who are litigators obviously read the briefs fresh just like judges will and then ask questions based on that because you will get questions in a moot court that you've never thought that you had no idea would have hurt anyone.

[00:33:18] But that's because you've been living with the case for months or years and it's so helpful to have that outsider generalist perspective.

[00:33:28] I find it a little less helpful but people have different approaches this to have an informal prep session where you're kind of talking about the issues and talking through things.

[00:33:39] I find that to be helpful after a formal moot court where you can kind of do a debrief and talk about answers to questions that maybe didn't have great answers for.

[00:33:50] But I think that that's kind of should all be done before the moot court is when you do the prep and when you are asking the questions of your colleagues who know about the record or might know that area of law particularly well.

[00:34:05] And then you come into the moot court and you want the hardest looters you can. You want people who are going to be intimidating and put you on the hot seat for an hour.

[00:34:17] And that's what people do when they're in government, that's what people do at private firms.

[00:34:25] It's just so it's so invaluable to have that preparation and you have someone write down the questions and then you look at those questions afterwards and you figure out what you could have said better. You figure out what themes you might want to reevaluate based on those questions.

[00:34:43] People can have multiple moot courts kind of depends on on what the actual argument is going to be like. But I think that there's no better preparation for an argument than to do a moot.

[00:34:56] I'm curious and this may be a difficult question to answer, but you talk about getting to know the record, getting to know all of the cases doing things like moot court. Roughly how many hours of prep time does it take to prepare for an hour of oral argument?

[00:35:13] Well, I will say an hour of oral argument is pretty unusual. That that will only typically occur at the Supreme Court level. So the Supreme Court of the United States typically has hour long arguments and even then you're only arguing for 30 minutes.

[00:35:32] And typically in the federal courts of appeals or state courts of appeals, you might get 15 minutes, which actually is almost more challenging than half an hour because you're trying to talk about a case that could have been lasting for years and maybe five or six legal issues in 15 minutes.

[00:35:53] But, you know, when it comes to preparing for even a 15 minute argument, I mean that that could be 60, 80, 100 hours of prep work. Because again, it's all about knowing every date, every record page, every, every single thing that happens in that case.

[00:36:16] And it's about knowing everything about every case you've cited and what the other case cited.

[00:36:21] So it's an extraordinary amount of preparation for a very short amount of time, which again I think just kind of goes back to the elevated stakes of appellate litigation and oral argument in a court of appeals or Supreme Court.

[00:36:39] You talk about all of this level of detail you need to know. I recall in the article you mentioned something about preparing a cheat sheet. What sort of things would you recommend an attorney put on a cheat sheet?

[00:36:51] So, I use a cheat sheet as my, as the only thing that I will bring up to a podium. And I think what I referenced in that article and what I typically do is it's just a manila folder that has four sides to it.

[00:37:10] And I've typed out my, my notes and I put them on there. So I really only got four sheets and I see sometimes people will go up with binders and tab pages and yellow pads and they're scribbling.

[00:37:28] And I just find that number one, I think it's distracting to the judges when you go up there with five three inch binders. And number two, I think that kind of signals that you're not there to have a conversation with the judges like I talked about earlier.

[00:37:47] So if you go up with just four pages on a manila folder, you are essentially committing yourself to having memorized most of everything and also being there to talk with the judges and not simply just answer questions.

[00:38:03] So the types of things that I would put on that sort of cheat sheet would be maybe six or seven bullet points of the main themes that I want to get across.

[00:38:16] The main points that if I had 30 seconds to talk to you about this case, this is what I want you to know about it.

[00:38:24] Those could be factual points. Those could be legal points. Those could be policy points about why it's a good idea to rule in our favor because of the broader repercussions.

[00:38:36] Often I will put some key record sites on there. So if they're, if we're talking about a contract case and the contract is 100 pages long, I want to be able to know exactly where in the record the seven key provisions are.

[00:38:53] I can look down very quickly and say, oh, your honor, that's at record 1340 if you're looking for that provision. And they appreciate that. And it makes you sound like you have real credibility.

[00:39:05] I will put some key cases down and I will talk about the takeaways from them and I will maybe put some of the other side's key cases and just jot down some of the limitations on them.

[00:39:18] So it's four pages, you should be able to fit a lot in there. And if you need more than four pages, then you're probably not going to be using it as a cheat sheet.

[00:39:31] You're probably going to be using it as a crutch. And you're not going to be talking with the judges. You're going to be answering their questions or talking at them and not really engage them in the type of advocacy that is best.

[00:39:46] You touched upon this with a number of your answers, but I was wondering in your view, what is the worst mistake an attorney can make during an oral argument?

[00:39:55] I think the worst mistake an attorney can make during an oral argument, I mean, is to say something or give an answer that is essentially made up.

[00:40:10] Whether that's a factual answer or a legal answer. If a judge asks you something and you don't know the answer, the better response is simply to say, Your Honor, I don't know the answer to that right now.

[00:40:25] I'm happy to submit a letter about it afterwards and then move on or say, but I don't think that's relevant, Your Honor, because of X, Y and Z.

[00:40:36] But your question takes me back to another question that your colleague asked. So to say something that you don't have support for is only going to get you in trouble.

[00:40:49] I mean, number one, you could be flat out lying to a court which is in no one's interest, particularly your own, your officer of the court and you have to be honest with court.

[00:40:59] But even if you're just kind of coming up with something, the other side, number one, could call you out on it when they get back up.

[00:41:08] They might send a letter to the court saying so-and-so said this and that's completely wrong. And here's the case that shows that or here's the record site that shows that.

[00:41:18] So now you've got something in writing that points out how wrong you were. You also risk the judge following up with another question that is painting you into a corner based on a representation that you just made that you don't have backup for.

[00:41:33] So now you're two in the hole and at some point, you're going to reveal that you've just kind of lost all credibility.

[00:41:41] So if you don't have an answer to a question, you really just need to be honest about it. Now hopefully you don't find yourself in that situation because you prepared or you are able to parry that question in a way that is both respectful to the judge

[00:41:59] but gets you back on track to your arguments. But you just don't want to go up there and kind of flail and swing wildly if you're not prepared.

[00:42:09] Is the atmosphere usually pretty congenial and collegial or have you ever seen things get tense or even hostile between the attorneys and the judges? It is generally pretty collegial. I would say that typically appellate advocacy and appellate practice is far more collegial both between the attorneys.

[00:42:32] I mean, the attorney is it's hard to get all riled up about hypothetical, abstruse legal questions. You know, it's not like we're talking about discovery where people are accusing people of hiding stuff and making my life miserable.

[00:42:47] And you made us work on a weekend because you guys screwed up, etc, etc. It's generally pretty collegial. And the judges are as well.

[00:42:56] These are the people who get appointed to courts of appeals and people who generally argue before courts of appeals are they're not your slash and burn types.

[00:43:05] And they're, you know, they're not your fired brimstone. They're generally kind of dorky and nerdy. And, you know, they spent a lot of time in the law library reading law books.

[00:43:17] And so there's not a lot of kind of fired brimstone. However, certainly it can get there can be fireworks. There are certain certainly judges who are known for not suffering fools and not taking and they know when they're kind of getting snowed on an answer

[00:43:37] or the lawyer is dodging them or the lawyer is not being forthcoming as I alluded to before. And you will definitely get some judges who can really press on an attorney now it almost never gets personal.

[00:43:53] And I think everyone kind of knows that that the judge is doing his or her job in firmly pressing on the advocate and the advocate is doing or his job and pushing back sometimes firmly.

[00:44:06] You know, there's nothing wrong with being firm towards a judge and stating your position clearly and sticking to it and saying you know with all respect your honor I just think that's incorrect.

[00:44:17] I think that's an incorrect reading of the law and I don't think or I don't think that the record bears that out. You know, you take a different view but I would refer you back to record 1343 and so on so

[00:44:29] case and so you can kind of move on if the judge gets hostile and certainly there's there's an element to the practice of a pellet advocacy where you know when to give it.

[00:44:40] You know when to move on and you know when a judge just isn't going to be moved on something and just kind of needed to get it out. And then you move on and you kind of also know ahead of time who the judges are who are more likely to have a little fire in his or her belly.

[00:44:57] Just from a personal level, from your own experiences, what is it like to argue before the I'm going to get this right the Supreme Court of the United States.

[00:45:06] Yes, well it's it is unparalleled. It's a wonderful experience. It's the most preparation I've done for arguments ever. I think I even stayed in a hotel the three nights before the argument just to completely isolate myself and and kind of be in the zone maybe two days

[00:45:28] before I probably had a report that is a particularly singular experience because you've got nine justices that you're dealing with so most courts of appeals have three judges.

[00:45:42] Even most state Supreme Courts will I mean the Indiana Supreme Court for example has five justices. It's pretty rare that you're going to be before court that has nine justices.

[00:45:56] Sometimes you might argue before an en banc court of appeals. So you'll get the full well the 15 judges there but that's very rare. The Supreme Court of the United States has nine justices and you also have argument for usually 30 minutes.

[00:46:12] And while it can fly by, you're getting hammered for 30 minutes because you've got people who I mean talk about writing an opinion that's going to be looked at by other by other lawyers other judges and they are writing.

[00:46:31] They're writing their opinions for the ages for the history books and so they need to know every single last aspect about your case. And so you need to know every single last aspect about your case.

[00:46:48] And it's the biggest court you'll courtroom you'll probably ever arguing. It's a very, very large courtroom. Obviously it's recorded and it's you know heard by thousands and I suppose millions if they ever really wanted to get around to listening to oral argument.

[00:47:05] And so that margin of error that I talked about earlier I mean it's it's it goes from infinite decimal to zero and but before you know it it's over and and it's really, you know the preparation and the style of advocacy advocacy really isn't that much difference from arguing

[00:47:29] over other courts of appeals. It's just sort of on steroids, because you've got instead of three people asking me questions, two of whom may not really care that much about the case because well you've got a right to an appeal.

[00:47:44] And this is just another one of the thousands of cases we have to hear every year. The Supreme Court took your case because it was interested in the case, and it has to decide your case and it has to decide it in a way that will affect every other case in that area of law.

[00:48:03] And so it is every justice is paying attention to the case. Every justice has read the breeze very carefully. Every justice has four law clerks who have read the breeze very carefully and you know and know everything about the case so it's it's it's the same basic principles of advocacy but amped up to 11 as they say criminal

[00:48:28] criminal defense attorneys sometimes talk about how difficult it is to wait for the verdict and for them usually they have to wait hours or maybe days. And as you've indicated sometimes when you after an oral argument you may have to wait months to find out the decision.

[00:48:47] How do you deal with that is that it's not a difficult wait. It's a difficult wait, except that you know there's nothing you can do about so you sort of just have to move on to the next thing on your plate.

[00:49:03] Imagine it probably would be a little bit more difficult to wait for a jury verdict because you know it's coming in the next two to five days, and you're going to have to to activate once that verdict comes down.

[00:49:18] When you're waiting for an appellate decision, you kind of know nothing's going to happen for a month or two. And so you just sort of have to move on to the next item on your list.

[00:49:31] It can be frustrating the longer it goes on because then you start wondering and your client starts wondering hey what's going on here why is this taking so long. Remember that one question they asked you think they're hung up on that.

[00:49:45] Maybe there's another case that came out somewhere that so you start you start having these mind games a little bit about what on earth could be taking this court so long, but nine out of 10 times it was all just you'll never know why it took them so long, but they'll just issue a decision.

[00:50:04] And maybe one maybe you lost but there'll be no explanation for what how did the heck did this take nine months it's a seven page opinion, but they're very busy courts and every every judges over worked.

[00:50:17] And the courts and appeals are overworked and even the state Supreme courts even though they get to decide on how many cases they're going to take their overworked.

[00:50:27] And so you just sort of have to accept that there's going to be a wait time now the only the only court where as far as I know they actually do have a time in which they get all their decisions out is the Supreme Court of the United States.

[00:50:43] At the end of every term by the end of June, and I think there's one exception during COVID when they went into July a little bit. They get all their decisions out by the end of the term at the end of June.

[00:50:57] So that's really the only court where you are essentially guaranteed to know when you're going to get a decision by every other court. You just have to wait and I have seen cases where people wait over a year from a court of appeals for a decision.

[00:51:15] And it can be very frustrating because so much is waiting on that opinion. Maybe things have been delayed in the trial court because you're waiting on that opinion.

[00:51:23] Maybe the outcome of that opinion one way or the other is going to have a massive effect on the trajectory of the case or other cases. And I can't tell you how many times a client says, can you can we call the court and ask what's going on?

[00:51:38] And the answer is always the same. Sure, we can call them. They won't tell us anything, but I'll call them. We call them. They don't tell us anything. And that's what we tell the client. So only the judges and the staff know for sure.

[00:51:53] And speak to the courts manager. And I'm sure that they get so many phone calls from, you know, and even in high profile cases where they are getting calls not just from the attorneys but from the general public.

[00:52:06] And, you know, they almost need to have a recorded line that just says stop calling. We will issue our decision when we issue it. Before I ask you our final question, I have to I'm sorry this has been driving me crazy.

[00:52:18] And I've been so curious about it over your shoulder. Is that a picture of a saint right there behind you? Yes, that actually is a picture of Saint Thomas Aquinas knew it. Oh my God, I was like that.

[00:52:32] It's blurry but I am Catholic too. So what do we go. Yes, that you are the first I've done a lot of zooms. And first person who has ever noticed that that's very impressive. Yes, Aquinas, Tomas, Dominicans, all that sort of stuff.

[00:52:50] I referred earlier to being dorky and nerdy. So throw a little 12th century Aquinas in there and you've really got yourself something.

[00:52:59] Love that. I love that so much. Oh my gosh, I was like, oh, this is going to be so embarrassing if it's not but I got to shoot the shot. You never know until you ask.

[00:53:10] Yes. Here's here's a question though. Here's our final question that we always ask everybody. Is there anything that we didn't ask you about that you wanted to mention or anything that you think it's important to understand?

[00:53:20] Or if there's more information on the subject that people want, where can they get that?

[00:53:25] Sure. Well, I think you asked great questions so I don't have too much more to offer but I will say that for folks out there who are interested in oral arguments or oral advocacy, particularly at the Supreme Court levels,

[00:53:43] there are websites out there where you can literally go and listen to a Supreme Court argument going back 60 or 70 years, sometimes even earlier.

[00:53:56] The website's called OYA www.oyez.org and you can go there and you can literally listen to arguments when Chief Justice John Roberts was a young government attorney and he argued for the Supreme Court or Justice Kagan

[00:54:17] or all of these people who, I mean you could listen to Thurgood Marshall argue the civil rights cases. Some of these people who are just extraordinary oral advocates and to hear the way that they present arguments.

[00:54:32] I mean even just for some of them the sonority of their voice. It's really educational, it's entertaining and it's actually kind of awe inspiring. The fact that you can listen to these great orators who went on to do extraordinary things

[00:54:53] or even people who just argued one time in a particularly important case. So if there are folks out there who want to know more about this or just listen to some of these great arguments, that's a website where they can do it and it's really fascinating.

[00:55:10] You'll go down the rabbit hole and stay there for hours. Very cool. Well thank you so much. We really appreciate it George. Absolutely. Thank you for having me on. We want to sincerely thank George for sharing his time and great insights with us.

[00:55:23] Thanks so much for listening to the Murder Sheet. If you have a tip concerning one of the cases we cover, please email us at murdersheet at gmail.com. If you have actionable information about an unsolved crime, please report it to the appropriate authorities.

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