I argued in front of the Supreme Court today. (“In Washington, D.C.?” says Cole this morning when I tell him what I’m up to. No, buddy, Indiana.) The case was J.M. v. Review Board – that link takes you to the oral argument page. Here is the Court of Appeals decision that was vacated when the Supreme Court granted transfer.
I don’t want to go into much detail as to the substance of the case because it’s still under review, and, generally speaking, I don’t talk about specific cases I’m handling too much on this blog. But, basically, it had to do with whether an employee was discharged for just cause or not. If so, the employee is not entitled to unemployment benefits. If not, the employee is. The primary wrinkle for the Supreme Court had to do with the fact that IC 22-4-15-1(d) has a number of examples of ‘just cause’ for termination. The Court of Appeals felt like the example selected by the Review Board was not well supported. I made the argument that even if that particular example wasn’t well supported, some of the others were. The Court of Appeals said they couldn’t look to any other example other than the one chosen by the Review Board. I said they could and asked the Supreme Court to say so as well.
The process itself is a little like a dog chasing a car. You get an opinion from the Court of Appeals you don’t think much of and the only recourse is to go above their heads to the Supreme Court. But, grants of transfer by the Supreme Court are discretionary – most petitions get denied. But, you file your petition, and then mostly forget about it. Then one day, you get your order from the Supreme Court, jog your memory about the case, and then scan for the denial of your petition. Only, this time, the petition is granted. The Court of Appeals decision is vacated, and your case is live again.
And, as in this case, if oral argument is ordered, you have to re-learn the case again. So, that’s what I did. I went through the briefs. But, I had to do more. The difference between writing a brief and doing oral argument is that when you cite a case for a proposition in front of the judge, he can ask follow up questions. To answer them, you have to know, not just a snippet of language, but probably the factual background. Then that case has probably relied on other cases, and the whole thing just snowballs on you. It doesn’t matter how simple your legal issue is, once you start running the argument in your head, it can lead down any number of rabbit holes that you have to feel prepared for.
And you can get well prepared for the central parts of the argument. But, the body of law is vast and interrelated. You just can’t know it all. So, it’s never entirely clear when you’re “finished” preparing. You just run out of time. At least that was my experience. I’d gone through the cases and the transcripts and the briefs as much as I could and, last night, mostly threw out my oral argument outline and wrote a new one. Much better than my last. I rehearsed it, and it seemed to hold together fairly well.
But, with me, working that hard for a few days starts making it hard to sleep. If I don’t allow for enough down time before bed, my mind keeps running, and I have a tough time nodding off. That was my experience last night. I drifted off at about 1:00 a.m., woke up periodically, afraid I’d oversleep, and woke up at about 6:30 a.m. Upon waking, I realized I couldn’t remember my entire outline and there were cases I felt like I ought to know, but I could remember only their names and not their facts or why they mattered. Not surprising immediately after 5-6 hours of sleep; but not entirely reassuring either.
On the drive down to Indianapolis, there were a number of news reports about the ongoing oral arguments over Obamacare before the U.S. Supreme Court. I was just happy I wasn’t those guys. That’s an enormous amount of pressure. Downtown, I first looked at the state parking garage. If memory serves, when I was working down there, one or both of the garages offered parking to the public. But, not the case now. But, things were slow downtown at 8:45, and parking was no problem. Mostly when I walked into the State House, I was soaking in old memories from my days at LSA. But, I couldn’t help noticing a couple of things: first, there are were a lot of low number license plates in the surface lot adjacent to the building. Second, the first floor of the State House where the hearing rooms are looks really shabby. Even a fresh coat of paint would do wonders.
Anyway, I wandered up to the second floor and checked in – signing in with the Sheriff in front of the court room doors. Then, I went into the law library next door. Spending 15 minutes looking over my outline and the cases I’d highlighted calmed me down quite a bit. Then, I was able to talk for a few minutes with counsel for co-appellees to make sure we were on the same page. Since we were on the same side, there was only 20 minutes allotted for oral argument for the side, and it was up to us to coordinate its division. Since I’d filed the petition, I got the lion’s share – taking 15 minutes and leaving 5. (Which turned into about 18 and 2 in practice since the 15 minute mark came just as a longish question was forthcoming from one of the Justices.)
Then we went into the court room where the court staff was very helpful in assisting us with the mechanics. Pro-tip: Just shut up and listen to these people. They’re unfailingly polite, but I have to think they get tired of exchanging niceties with a bunch of big-ego lawyers all jacked up in anticipation of a big argument. A couple of unexpected bits of logistics – the lectern is a lot closer to the Justices than I had anticipated; and there is not a lot of room to set down many papers if you were hoping to be able to refer to them during the argument.
One helpful thing in calming me down was getting to observe the other lawyers involved in the case. It’s helpful to see that they are in the same boat as you; have the same struggles with nerves and preparation. In my case, the other side went first. Then, I was up. I always have the hardest time just delivering a presentation.
I hear that football players in a big game struggle a bit until the first hit, then it’s just football. I guess maybe that’s how I am until the first question. Once the first question came, I started enjoying myself. There’s something I really like about the mental exercise of answering a question but doing so in a way that advances one of the points you’re trying to make. Incidentally, once the questions started coming, that outline I was sweating over went right out the window. And I only managed to blurt out a couple of case names. I don’t know that the Court asked about any of them in particular. Mostly they posed hypotheticals or asked how the law did or should apply to particular scenarios.
And, then it was over. It felt like the argument went fairly well. But, even though I hadn’t been in front of this body before, I’ve been at this long enough to know not to try to guess about the decision based on the oral argument.
I don’t know about anyone else, but when I was figuring out what I wanted to do with my life and was envisioning being a lawyer, this is the type of thing I envisioned. (Even as I understood it was rare.) It’s just a privilege to have the kind of practice and clients that allow me to do such things.
Good luck, Doug! Having a case before the Supremes (even ‘just’ the Indiana ones) is quite an experience. I hope it goes well for you!
Perhaps apropos of nothing, but it may be interesting to you, Doug, that there is a strong possibility the Unemployment Insurance Review Board rarely listens to the cases it is supposed to do under the leadership of its chair, Steve Bier. Word is a lawyer who works for the Board hears the cases and makes decisions; only big ones might get the Board’s attention (which is also notorious for ruling in the employer’s favor).
Considering the Adjudication level (claims deputies who make initial determinations) and the Appelate section (with the Administrative Law Judges) have struggled with timeliness and having backlogs into months, the Review Board has, under Bier, had some of the quickest timeliness rates in issuing decisions (less than 3 weeks on average). There is no way the Review Board is 1) Getting together (at least 2 of the 3 need to be together in attendance) and 2) Listening to every case they hear (they are supposed to hear every recorded ALJ hearing that is appealed to them). With all the people who are denied unemployment, then appeal and lose before an ALJ and then appeal to the Review Board, there is no way the Review Board under Bier is adjudicating the cases before the Review Board legally (and they are not). I believe the Board should be subjected to further scrutiny (and at least in Bier’s case, reviewed as a lawyer for questionable practices), but they will not be, I’m sure.
As a former adjudicator and quality control auditor at DWD, I’d be fascinated to know the details about this case and what the Supreme Court decides. I know you can’t give details so I will wait and see what the Court issues. Congrats on going before the Court!
Thanks Bradley. I can’t offer any insights into the Review Board’s internal operation. The folks I talked to in the course of this proceeding seemed like good people; but, obviously that’s: a) anecdotal; and b) not especially relevant to the concern you raised.
I would like to see some statistics published on how many initial appeal hearings are determined by default. These telephone hearings, whoever invented them, were a terrible idea. I’ve heard numerous accounts of parties waiting by the phone and desperately trying to call at the appointed time when the call doesn’t come only to later learn that a default judgment was entered because one of the parties didn’t participate. I’m told that the ALJs deliberately do this to make their jobs easier. The only thing I know is that the system has gotten much worse and the error skyrocketed under this administration.
The telephone hearing was especially pushed starting in 2007/2008. On the Deanna Dewberry/WISH-TV stories about DWD and the UI system from a month ago, the Ronnie Miller she mentioned was the Chief Administrative Law Judge from 2007 until sometime in 2010 and undoubtedly the telephonic hearings were what was wanted during his time there (many people have warned that these hearings are a bad way of doing things). Though DWD looks at telephone hearings as a way of saving time (and money), there are tremendous pitfalls to the hearings such as some of the issues you raised that DWD either ignored or did not care about (or both). The telephone hearings were a way to crank-out the overburdened number of appeals (as were doing re-determinations contrary to state law, as Deanna exposed).
I would also add something not many people know about — in August 2008, DWD stopped having claims adjudicators participate with hearings. Adjudicators used to participate with hearings as a part of their job as “defenders of the Trust Fund”. If a claimant said during the week-ending 3/31 that they could not accept work because they broke both legs, then I would deny them benefits for an indeterminate amount of time until they could accept work. Let’s say they appeal that decision — and I would participate in the hearing as a representative of DWD and defender of the Trust Fund. Let’s say the claimant now tells the judge that “no, I could work that week, I didn’t break my leg.” If I, as a claims adjudicator, can provide my testimony (and have the judge enter evidence I sent both parties) showing the claimant had indeed said they broke both legs and cannot work, then the judge will have to see if the claimant is lying and can then prove they could work during that week.
However, since DWD stopped claims deputies from doing ALJ hearings, there is NO ONE there to prove the claimant is lying. The ALJ will have no other recourse but to allow the claimant because the ALJ has no idea the claimant is lying (especially over the telephone where he/she can’t see the claimant), and the claimant will get paid UI when they should not.
Think about that if you are a business or taxpayer paying someone’s UI. No wonder, as you said Gary, the system has gotten so much worse under this administration. And if everyone only knew even half of the story…
One of the biggest structural concerns I have for the system is a sort of bipolar approach to the rights and responsibilities of the parties at the hearings. On the one hand, the process is contemplated as a sort of informal one where the parties are not expected to have a lot of specialized knowledge of the process. In accord with this view, the ALJs lead the questioning and guide the case development; to the point of cutting off the parties when they’re straying from the matters the ALJ has in mind at that moment.
On the other hand, there are technical burdens the parties seem expected to meet – e.g., specify which of the enumerated examples of just cause you think applies to your situation; if it’s (d)(2), present evidence of the uniformity of rule enforcement; if it’s (d)(5), present evidence of reasonableness and/or that the instruction is within the scope of the employment.
It seems a bit unfair if you’re not encouraged to get a lawyer, you’re not given discretion to develop your case in the manner you see fit, you’re cut off by the ALJ when you are trying to raise a point you think is relevant, the case is not developed properly and you lose for failing to meet a particular technical burden.
In my experience, the ALJ gets his questions asked and, only then, does he invite you to add “anything else;” but, at that time you’re usually up against an ALJ-imposed time deadline and it’s fairly clear that if you have a lot to add, the matter will have to be continued to a new date – which encourages you to just rely on the facts developed by the ALJ.
The end result is that I find the process more laden with potentially fatal technical landmines than your plain vanilla civil action through the trial courts; which is opposite of how it should be.
You bring-up so many valid points about the Appelate process there, and unfortunately nothing will change any time soon. There used to be a lot of good ALJs there, and there are still some, but many of the newer ones have a really bad understanding of unemployment insurance law. It does not help that the initial level adjudication is so bad (bottom 5 in the nation for the last 4 years) although there are some good adjudicators there too.
But when the initial decision is bad, not supported by facts, does not get rebuttal from the other party as required by federal mandate, or any other thing that would cause a bad decision, then the claimant or employer will appeal which causes a backlog which causes the appeals to be set at 45 minutes which causes some of the appeals to be rushed. It’s a very brutal cycle the incompetents at DWD have started.
Regarding nerves: like you, I enjoy oral argument, both at the trial and appellate level, more than anything else I get to do as an attorney. Yet, whenever I arrive in court before my opponent, there’s always a part of me that hopes that he or she doesn’t show up so that we have to do it on another day.
I hate the period between arriving and getting under way more than just about anything. The hoping the other side doesn’t show; then when they do show, the social awkwardness of the situation until the judge shows up.
Great post, Dough. I was able to argue a case at the Ind. Supreme Court back in October of 2008 (was it really that long ago?). I didn’t win (well, in the legal sense no, but practical sense yes–had I won, trial would have been a nightmare), but had a good time. I thought the justices were asking some questions that made me wonder if they understood the issues or even knew what they were–and opposing counsel felt the same way. At least the opinion revealed they got the issues right.
I agree with you about one thing. Oral arguments are the sort of thing that makes you feel like you’re really a lawyer. I’ve only argued once at the 7th Circuit, Ind. Court of Appeals, and Ind. Supreme Court, but each experience was outstanding, no matter what the outcome.
Thanks for sharing a great recap of the experience.