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January 9, 2007

Is the big bad government afraid of lil' ole me?

As detailed this post, a few months ago I filed (with the help of great folks at Holland & Knight) an amicus brief arguing that the Eleventh Circuit should affirm the below-guideline sentence given to Sergeant Patrick Lett, a federal defendant with 17 years of honorable Army service including two tours of duty in Iraq.  (Background is here and here, and where you can find my filed brief.)  After filing my amicus brief and learning that the Eleventh Circuit had scheduled oral argument in the case, I filed a motion a few weeks ago requesting some oral argument time.

Today I have learned that the US Attorney for the Southern District of Alabama has formally opposed my motion for oral argument time.  In this opposition, which can be downloaded below, the government asserts that "[a]ny argument offered by Professor Berman would merely be cumulative of points that will certainly be addressed" by Lett's appointed counsel. 

Needless to say, I have no interest in traveling to Alabama (at my own expense) for oral argument just to present cumulative points to the Eleventh Circuit panel.  I authored the brief and now want a little argument time because I think Lett's case provides a terrific example of how reasonableness review can and should be applied without excessive emphasis on guideline provisions.  The case also is an excellent setting for exploring, as I have discussed here and here, whether and how federal sentencing laws can and should consider a defendant's personal history of distinguished military service.

After last night's disappointing football game, I would not expect anyone from SEC territory to be scared by a Buckeye.  But perhaps the government just reasonable fears that it might not continue its winning ways on Booker reasonableness review if I am allowed to help even the (often uneven) appellate playing field.

Download lett_argument_motion_opposition.pdf

January 9, 2007 at 02:39 PM | Permalink


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Professor Berman...Good for you to attempt to bring a little justice to the Justice Depepartment. The 11th Circuit has actually been less conservative on reasonableness appeals from the government than other circuits. Good luck to you and your client.

Posted by: mike | Jan 9, 2007 7:07:48 PM

Did the defendant agree to let you take some of his time, or were you asking for extra time in addition to the time given to the defendant already?

Posted by: Anon | Jan 10, 2007 2:47:11 AM

Note that "Mike" above thinks that Prof. Berman represents the defendant in the appeal. When he says "good luck to your client," he obviously does not understand that Professor Berman has no client in this case.

I'm curious about the answer to "Anon"'s question: did you ask or expect to take time away from the defendant?

Asking to submit an amicus brief is one thing. The court court can read or not read it as it deems fit. But when you ask for oral argument time, you are asking to FORCE the court to listen to you. This is entirely another ball of wax. In an era in which even parties are having their right to force the court to listen to them whittled down (and the Eleventh Circuit is one egregious example), it's a bit presumptuous, and too taxing on the system, for non-parties to try to force courts to listen to their arguments. Obviously, it's the court's call, but they'd better not dismiss ONE case this year without argument if they're willing to grant non-parties the right to argue.


Posted by: Mark | Jan 10, 2007 10:53:48 AM

Mark, when an amicus requests oral argument, my understanding is that it is merely a request, and the court can do with it what it wishes. As far as I know, as a non-party, an amicus has no right of any kind to oral argument.

As such, "asking to force the court to listen to you" isn't an accurate description, because only the court can apply the "force," and the court is always free to cut the amicus off after 30 seconds if it doesn't like his Buckeyes tie.

Posted by: Bill | Jan 10, 2007 11:22:16 AM

I'm the defendant's attorney in this case. Professor Berman, with my blessing, asked for additional time at oral argument. He never asked for any of my time. Also, the defendant received the time-served sentence that the government is now appealing due, in part, to Professor Berman's indirect intervention in the case at sentencing (before I or my office represented the defendant).

Posted by: FedDef | Jan 10, 2007 1:12:43 PM

With regard to Bill's post, I stand by the accuracy of my description. Asking a court for amicus oral-argument time forces the court to listen to the amicus in an entirely different way than when an amicus asks to be able to file a brief. I assume that my "obviously, it's the court's call" statement showed that we all recognize that the court gets to decide whether to permit amicus oral argument. Once oral argument time is granted, however, I hope that we don't get to the point that panels start deciding to cut off oral argument, whether based on their assessment of the arguments made or of the tie worn by the advocate, which Bill's posts suggests would be appropriate.

FedDef's post raises two serious follow-up questions. First, since the defendant agreed to accede to Prof. Berman's request for oral argument time, did the defendant, and FedDef, and Prof. Berman all request that the government's time be expanded to equal the added time for Prof. Berman? If not, does anyone think that it's fair that extra time is allocated to one side of an argument? Second, if the defendant, FedDef, and Prof. Berman did ask the court grant an equal amount of extra time to the government, my point about the resources of the court -- implicating the opportunity for oral argument of other parties in other suits -- is that much stronger. Twenty minutes or thirty minutes is a lot of court time in the Courts of Appeals, time which other defendants, who won't get the opportunity for oral argument AT ALL in the Eleventh Circuit this year, would very much like to have. The court has to think about those other cases when deciding whether to let amicus get additional oral argument time in any one case.

To reiterate, this is the court's call. Maybe the issues involved in this case warrant extraordinary argument time. I don't know. I trust the court's judgment on that issue. But I do know that the question of allocating scarce Court of Appeals argument time to amici runs a lot deeper than whether the government is "afraid" to have amicus argue in any given case.


Posted by: Mark | Jan 10, 2007 2:19:53 PM

When the Eleventh Circuit agrees to hear amici at oral argument, the court automatically gives the government (or other opposing party) extra time equal to the time given amici. It's not necessary for the parties to ask for it. FYI.

Posted by: FedDef | Jan 10, 2007 3:14:17 PM

Sounds like someone is a little bitter about having his own request for oral argument denied.

Posted by: Anonymous | Jan 10, 2007 8:05:18 PM

To Anonymous: I've never asked for oral argument time as an amicus, and I've never had a request for oral argument time denied. Fortunately, most of my appeals are in the Sixth Circuit, where the court has killed itself to make sure that attorneys who ask for oral argument time get it. The Eleventh Circuit, in contrast, has a well-documented practice of deciding many appeals without argument -- and without a thoughtful decision to boot.

This is not personal. If you're going to make it personal, you should at least have the courage to sign your name.

But as you make it personal, don't try to point your fingers at me. I'm just an advocate. It's very personal to the men sitting in prison who wish they could get their day in court, while some people think that the Courts of Appeals are graduate-school seminars.


Posted by: Mark | Jan 11, 2007 10:26:22 AM

I would think that the man sitting in prison on whose behalf Prof. Berman would like to argue would appreciate any extra oral argument time afforded to the amicus on his side.

Posted by: Anonymous | Jan 11, 2007 11:59:25 AM

Anonymous goes from ad hominem to non sequitur (and a subjunctive non sequitur at that). Nice.

I have no doubt that the defendant in this case would like all the help that he can get. I am also confident that FedDef and Prof. Berman would each do an excellent job arguing the defendant's case. Therefore, the issue here is one of resource allocation (and, thankfully, not one of competence). The issue here isn't personal. It isn't about a government lawyer being "afraid" to have an amicus argue, and it certainly isn't about whether I've ever had a request for oral argument denied.

The Supreme Court, deciding only 100 cases a year with nine judges, has the luxury of permitting amicus oral argument time. The Courts of Appeals, however, are courts AS OF RIGHT, and they each decide thousands of cases (in at leas one instance, over 10,000 cases) a year with only a few more judges than the Supreme Court. The question of amicus argument time is an important systemic, institutional issue, with very important questions of resource allocation that are different for the Courts of Appeals than for the Supreme Court. As I've stated repeatedly above, the call is for the court. If the Eleventh Circuit is able to choose between giving an amicus argument time (with concomitant additional time to the United States) and permitting another defendant to actually have his day in court, I hope that they lean toward permitting argument in an additional case.

Why anyone would read this basic argument and make
it personal, I'll never know.


Posted by: Mark | Jan 11, 2007 12:55:43 PM

The courts of appeals spend most of their time reading briefs, and just a few hours of every month hearing argument.

I don't think it's the case that every 10 minutes given to an amicus is 10 minutes taken away from another case. Rather, it's 10 minutes that the judges spend with the advocates instead of with the briefs, because they find that it's helpful to interrogate the lawyers for a bit. If the judges grant Prof. Berman argument time, it won't come at the cost of time spent on another case. Rather, they'll do it because they think that 10 minutes of asking him questions will save them 10 minutes or more of going through the Federal Reporters and the statute books on this case.

As far as I know, court of appeals judges can hear argument in every case they find difficult to decide or in which they have questions they'd like to ask the advocates. While time pressure is part of it, I think the reason argument isn't allowed in a lot of cases is because the judges think it would be a waste of time. There's certainly a public relations boost to holding argument in open court and having a losing party's procedural rights showcased for the public, but I don't think that judges deny oral argument because they feel that they have a finite time to devote TO ORAL ARGUMENT. Rather, it's because they have a finite amount of time to devote to the task of deciding cases, and they feel that 30 minutes spent hearing argument on a case they find relatively easy would be better spent reading the books and typing up the opinion.

I think "anonymous" is just looking for a button to push. I wouldn't take it personally.

Posted by: Bill | Jan 11, 2007 5:33:54 PM

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