Thursday, November 17, 2016

The Tenth Circuit

Some time ago I took on this interesting case with a partner at my firm. It's an Eighth Amendment case (the right to be free from cruel and unusual punishment).

A year ago I successfully argued a part of the case and after the judge issued his ruling, the State of Utah decided to appeal the decision. When something is appealed from federal court in Utah, it gets heard by the 10th Circuit Court of Appeals, which is located in Denver.

I was happy to go to Denver to argue the case, and I did that this week. It has actually been a dream of mine for a long time to get to argue in front of that court.

Normal people dream about becoming a famous musician or meeting Oprah or getting hit by a car owned by a very wealthy person and being injured badly enough to never have to work again but not badly enough that life is miserable. I dream about standing in front of a panel of judges and indignantly saying something like, "WELL THEN I GUESS THIS ISN'T EVEN AMERICA ANYMORE."

When I told Rebecca that I was going to be doing this argument, she immediately invited herself, bought a plane ticket from Mississippi (where she lives right now I swear don'tevenask), and turned our text chain into a paper chain every 24 hours to count down the days until we could meet up in Denver.

Rebecca was living in sin with me when I first took on this case and she was interested in it then and thought it would be fun to attend.

For those unfamiliar, when you argue in front of a federal appeals court, three judges sit up at the front of the courtroom. Each side has 15 minutes to argue about the legal issues the court is supposed to consider. The judges are prepared to hear the arguments because over the last many months, each side submitted substantive briefs arguing their points and citing to other case law from that court and from the Supreme Court. The judges interrupt the person arguing as much as they want with questions and counterarguments and the attorney has to respond to the best of their ability.

You don't argue factual issues in front of an appeals court. It's all about how to apply the law. So the argument is more of an academic one. And especially when it concerns Constitutional issues, like, say, the boundaries of the right to be free from cruel and unusual punishment, it can become heated really quickly.

I knew this. And, being the neurotic crazy person that I am, I prepared for this argument like my failure to present it successfully might usher in the Apocalypse. I have at least 12 friends who are going to write me out of their wills if they hear me give one more 90-minute lecture on what I think about the Eighth Amendment.

Wednesday morning arrived. I was excited. Rebecca and I walked from our (definitely haunted) bed and breakfast to the courthouse. We were unnecessarily early. Rebecca took 200,000 pictures of me like it was my first day of school and this was kindergarten. She even fixed my hair with her spit.

See how young and hopeful I look? So optimistic? So ready to defend the Constitution of the United States of God Bless America? So sure that I was about to single-handedly prevent the Apocalypse?

Want to see a picture of me right after the argument?

You guys. How is it possible for 15 minutes to feel like 9 days?

It was so exhausting. The judges had more questions than I knew it was possible to have on any topic. At one point I may have eyed the room for emergency exits.

There's actually a video of the argument. Here's one clip:

I swear to you the first thing I did after we walked ran out of the courtroom was google "how to become a sheepherder in Jordan."

Rebecca was helpful.

Eli: How do you think it went?

Rebecca: You said things.

Eli: And?

Rebecca: And they said things, too.

Eli: Is that it?

Rebecca: I love that tie!

We wandered Denver for the rest of the day going through all of the traditional stages of grief and then even making up a few new ones like "shopping" and "profanity."

At various times Rebecca changed her mind about whether or not it went well, at one point wondering if we should both enter the witness protection program but then two hours later deciding that "it was actually probably such a good argument that they're going to let you keep the original copy of the Constitution at your house for a while!"

My prognosis usually matched hers to some degree. I've since been told by various colleagues that these are common feelings after an argument like this and that they would be worried if I didn't feel this way.

And now I'm home. And recovering. And waiting for a few months for the court to write its opinion. And Rebecca is somewhere in Mississippi. Probably eating gluten-free sawdust and also recovering from being one of the most amazing friends ever.

In happy news, Jolyn found out that she won the grant money for her classroom thanks to all of your amazing support last month. Please go check out the Stranger Facebook page for an adorable picture of her class celebrating the news. She (and I) thanks you from the bottom of her impressively-mischeavious big heart.

~It Just Gets Stranger


  1. If I ever need a lawyer to argue my case against cruel and unusual punishment (or anything else, really), I hope it's you. You say you're crazy and neurotic, everyone else says you're well prepared and knowledgeable and dedicated (I mean, I don't actually know if that's what people say, but I assume they do, right after commenting on your amazing hair. Clearly your astounding intellect plays second fiddle to your looks, because that's the way the world works, right?)

    1. Ditto, can you law for me if I ever need to go to court??

  2. Rebecca's spit worked well - your hair looks amazing.

  3. I'm alternately horrified and thrilled (tickled pink in Southernese) that you might have said "I guess this isn't even America anymore!" in a real live grown-up court situation. I know you didn't but the thought is great.

  4. So proud of you. I have absolutely no doubt you presented the strongest argument possible. I have all the confidence in the world that your ability outshined your doubt and apprehension. Great job!!!!! Bring on the decision.

  5. You don't know how it ended?!?!?!?! Who are you, the new cliffhanger queen of the internets?!?!?!?! The suspense may literally kill me

  6. I live in Denver and you didn't even call!

  7. So, does the new appointment mean you argued in front of the probable next Supreme Court judge? Because that would be pretty cool.

    1. Actually, yes. Judge Gorsuch was on my panel in November. He yelled at me. I have a recording to prove it.

    2. That sounds like it should be a Strangerville Short. "Someone important yells at Eli."