Courtroom Decorum in Baskin v. Bogan

Yesterday the 7^th Circuit heard argument in Baskin v. Bogan, a case involving Indiana’s same-sex marriage ban.  These arguments provide some noteworthy lessons in decorum.  Appellant’s counsel began his argument by articulating a precise roadmap in simple, comprehensible terms.  He was barely able to finish the first sentence of his first point, however, before being interrupted by one of the judges.  Certainly interruptions are to be expected during oral arguments. This interruption, however, initiated a parade of horribles so grand that it left appellant looking like a monster.  Throughout the argument, appellant’s counsel struggled to finish a single response before getting pounced with additional questions.  When he attempted to advance his own argument in response to a question, he was immediately admonished to answer the question.  At one point, another judge even explicitly said the court had no intention of allowing him to advance his own argument.  Curiously, the court was not interested in the rich logos arguments appellant was attempting to advance. The judges wanted to know about the pathos arguments like the psychological impact on the children of same-sex couples and the various sociological, anthropological, and psychological literature available on the issue. 

Appellant’s counsel professionally withstood the barrage of questions, although his frustration at times was evident in his voice.  Toward the end of the argument, though, he became much more adamant in his disagreement with the court’s hypotheticals.  His frustration showed both in his word choice and tone of voice.  By comparison, both attorneys for the appellee came across much more composed.  Granted, the court appeared to favor that side, so their argument was more readily received.  The moral of the story is that attorneys should be prepared to frame logos arguments in pathos terms when the logical argument leads to a necessary result the court is reluctant to adopt.