The argument in Larrabee just finished at the DC Circuit (video link below). The one substantive point that came through--even more so than from the Government's brief--is that the Government absolutely refuses to impose any limits on Congressional determinations of who is or is not in the land and naval forces. Government counsel proposed a "sham" limitation but refused to define it, and also repeatedly refused to answer Judge Tatel's questions about hard cases, responding "but that's not this case." This stubbornness was especially egregious in the rebuttal portion at the very end. I have a non-substantive question for appellate counsel: isn't this really bad form? How can you avoid a hypothetical in this way? I don't think I've ever seen an oral argument where counsel refused the questions in this manner. Has anyone else seen this (or done it themselves)? VIDEO LINK: https://www.youtube.com/watch?v=jcpG24eHEEM&ab_channel=UnitedStatesCourtofAppealsfortheDCCircuit Brenner FissellEIC
William Cassara
10/22/2021 01:25:38 pm
I have presented over a hundred oral arguments. While I wouldn't say I have never refused to answer a hypo, I can't imagine a scenario where I would. My general tactic is to try and figure out why I am being asked the question (is the judge trying to lead me down a path I don't want to go?) and then answer it with the caveat as to why that isn't our case, and why the answer might be different in my case. But to simply refuse to answer? No.
Brenner M. Fissell
10/22/2021 02:00:00 pm
Thanks Bill this seems right! Check out the link at 1:12:45 and tell me what you think. This comes after multiple previous attempts (can you sense the frustration in his voice?). I'm cringing! Comments are closed.
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