Armed Forces Appeals Judges Hear Arguments, Offer Advice in Eckstein Hall Session

“When you’re done, sit down.”

Pithy but important advice on how to present an oral argument to an appeals court was one of the beneficial things Marquette Law School students had a chance to hear Tuesday. That was when the United States Court of Appeals for the Armed Forces convened for a session in Eckstein Hall, followed by a question and answer session with the court’s five judges.

The court, an Article I entity which hears oral arguments in about three dozen cases a year, heard oral arguments in the appeal of an Air Force staff sergeant, Joshua K. Plant. He was convicted in 2012 of two counts of aggravated sexual assault of a child, adultery, and child endangerment and given a sentence that included 12 years of confinement. Included in Tuesday’s proceedings: Joshua J. Bryant, a third-year Marquette law student, who presented amicus curiae arguments in support of the sergeant’s appeal.​

First, here’s the case the court heard. Then, we’ll summarize some of the advice.

Plant, who was serving at an Air Force base in Arkansas at the time of the incident, did not contest the sexual assault or adultery convictions. The issue on appeal was whether being the sole parent at home during a night of drinking and partying in which Plant apparently became rather very intoxicated was enough to convict him of child endangerment. His 13-month-old child was sleeping during the party and was not actually harmed.

Plant’s private appellate attorney, Philip D. Cave, was given 20 minutes to argue that Plant’s conduct didn’t meet the definition of the crime in military law. Use of alcohol is not per se evidence of endangering a child, Cave said, and there was an absence of proof the child was endangered in this case.

Cave was followed by 10 minutes for Bryant’s amicus curiae argument. Bryant argued to the judges that the explanation of negligence in the military’s Manual of Courts-Martial should not be more narrowly applied to the case and that the government had not shown at trial that there was a connection between Plant’s alcohol use and endangerment of the child.

In his 20 minutes, U.S. Air Force Captain Thomas J. Alford argued for the government that the courts-martial manual could be applied broadlydid apply and the circumstances showed that Plant was endangering the child because he was not in a state where he could respond if the child was in need. With all that was going on in the home at the time, there was a “substantial likelihood” of harm to the child, even if none occurred, Alford argued.

Questions from the panel of judges included where the line should be drawn between bad parenting and endangerment and how to determine whether there had been a “substantial likelihood” of harm to the child. Chief Judge James E. Baker asked Alford whether, “on the off chance,” another airman got drunk while at home in charge of his kids, that airman would meet the legal definition of endangering his kids in the absence of other circumstances such as those in Plant’s case.

The court is expected to issue its decision within several months.

Following the formal session, the five judges took questions from the audience. Asked for advice for someone arguing before an appeals panel, each judge offered a down-to-earth response.

Judge Kevin A. Ohlson said an attorney should know the record in a case in depth and come to the podium with a plan focused on making one or two points.

Judge Charles E. Erdmann said attorneys should think about the consequences of the position they are arguing and what it would mean in a bigger picture if their view prevailed.

Judge Margaret A. Ryan said attorneys should be candid. It won’t be taken well if they play ”hide the ball.” And they shouldn’t just repeat what is in their briefs. Something needs to be added in the oral argument.

Chief Judge Baker said lawyers shouldn’t try to be Clarence Darrow in court. They should find their own voices and be willing to let that develop over time. “Do not be in a race to find your legal voice,” he said. “It will come.” Baker also said it can be wise for a lawyer to take time before answering a question from a judge because a good answer is better than a quick answer. He suggested that, on occasion, pausing to consult with the second lawyer at the counsel table was a good way of getting time to think about an answer. “You don’t get extra points by speaking extra fast,” he said.

And Judge Scott W. Stucky gave the blunt answer about sitting down when you’ve made your point.  Say what you’ve got to say and stop, even if there is time remaining. “Sit down and you’ll earn favor in heaven,” he said.

The court is based in Washington, D.C., and holds sessions around the country, such as the one at Marquette, on two trips a year. Professor Scott Idleman and Adjunct Professor Al Rohmeyer, who co-teaches a course in military law, and Adjunct Professor Al Rohmeyer led the effort to bring the court to Eckstein Hall.

This Post Has One Comment

  1. Melissa Greipp

    I was happy to see a number of law students in the audience. I thought the questions from the court asking the attorneys to weigh the merits of their argument against the other side’s argument were especially instructive to the students.

    This is exactly what an advocate must prepare to do in a brief or in an oral argument–to consider why and how their own argument is stronger than the other side’s argument and to articulate why and how the other side’s argument is weaker. It’s not enough simply to know what is good about your argument or bad about the other side’s argument; you must be able to consider the arguments relative to each other.

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