The Supremes, unplugged

Has your case been granted cert by the Supreme Court? Well, congrats — but before you write a word of your brief or prep for oral argument, you’d better check one website that will help you out more than unshakable legal precedent on your side.

Tony Mauro at Legal Times found a website featuring video footage of eight of the nine Supreme Court justices very candidly speaking - often griping - about their appellate advocacy pet peeves. And they make for good watching, even if you aren’t preparing to argue before the high court.

The videos are the product of Bryan Garner, legal writing specialist who sat down and videotaped each justice [except for Justice David Souter, who declined to chat on tape] as they candidly gave their views - as well as an insight into their personalities.

We already knew Justice Antonin Scalia can get testy if lawyers don’t prepare their briefs properly. But in his video, he unleashes.

For example, speaking about lawyers who respond to hypotheticals by saying “That’s not my case,” Scalia snipes: “Boy, no. I mark it down. Absolutely, absolutely. I would rule against it if I could, just on [that point.] No, if I had to grade advocates in addition to deciding the case, what you would really get a ‘C’ for is saying that is not this case.”

And don’t make a verb by tacking an “-ize” on the end of a noun if you want to get Justice Anthony Kennedy - a crucial swing voter - on your side. Such a linguistic trick is “like wearing a very ugly cravat,” he said.

Scalia eschews the argument summaries in briefs, but don’t leave them out if you go before the Court. Justice Clarence Thomas loves them. They are “like giving you, you know, what’s going to be on TV next week.”

You can watch all of the videos - we sure will - on the website of LawProse, Inc. DC Dicta will round up a choice sample of quotes from the justices here later on.

Court rules on EEOC ‘charge’ standard

Today the Supreme Court ruled that an EEOC intake questionnaire filled out by a FedEx employee constituted a “charge” of discrimination, triggering the agency’s duty to notify the employer and giving the employee, after a period of time, the ability to file a discrimination suit.

If you recall, it was during oral arguments in this case, Federal Express Corp. v. Holowecki, that justice Antonin Scalia expressed his serious dismay at the agency for failing to make clear to claimants what a “charge” is, and admonished the agency to “get its act in order.”

Today, Justice Anthony Kennedy’s opinion did not set a hard and fast rule that such questionnaires always constitute a charge, but rather held that “a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee’s behalf.”

As to whether the employee in the case met that test, Kennedy wrote: “The agency says it does, and we agree.”

Justice Clarence Thomas, who once helmed the EEOC, did not agree. In a dissent joined by Scalia, Thomas wrote: “Because the standard the Court applies is broader than the ordinary meaning of the term “charge,” and because it is so malleable that it effectively absolves the EEOC of its obligation to administer the ADEA according to discernable standards, I respectfully dissent.”

The opinion can be found on the Court’s website here.