I think you can be more than “cautiously” optomistic. When the tone sounded announcing the end of your alloted time for rebuttal you were in the middle of a thought. You asked if you should continue. The Chief Justice leaned forward and, in my opinion from the courtroom audience, paused in an (unsuccessful) attempt to supress a wide grin. He could not hold back a bit of a laugh as he said “I don’t think you need to.” The implied part of the C.J.’s sentence was, “You have won this one — and we have enjoyed watching you do it.”

I’ll have to check back and see what the outcome of the case is!

http://omaha.com/article/20091202/NEWS01/912029983

No shame in nervousness. I’m still a bit jumpy going into an oral argument, even though I’ve argued countless scores of state & federal criminal appeals (including one at SCOTUS) over a forty-year career.

A bit of gratuitous advice for your next appellate adventure: when, as here, a court is allotting only a few minutes of argument, the judges have time to grasp only the basics: what, exactly, are you arguing, and what are the key (only a few) indispensable facts undergirding and absorb when, as in this court, there were many other arguments on a lengthy calendar. I think you got into a few too many abstractions and case holdings for an argument this brief. My golden rule: never mention a case name except in response to a question from the bench that mentions that case.

It’s always perilous to read the entrails of an oral argument as to outcome, but I would venture to say that overall the bench was favorably inclined toward your position.

One tip: indexing your notes, with tabs for every last reference you can think of, really helps when presenting material that is fact-heavy. I takes an absurd amount of time and practice for what is basically curating a bunch of material that likely will never be used, but those one or two facts you have directly on hand can make a huge difference.

Of course, this leaves a problem if you need to stall for time, but I don’t think you tend to suffer from that need.

I get that he was trying to muddle the case history and get the judges to consider the previous emails, and the judges seemed to pick up on that, but this muddling seemed, well, really muddy to this non-lawyer.

My “take” is that the judges were more responsive to Eugene and that he had the stronger and clearer argument.

Well, done, Eugene!

Bama 1L: Maybe the judges have their minds mostly made up before arguments and draft the opinions beforehand.

I’m sure they often have a pretty good idea what way they rule before oral arguments, but I doubt they would be willing to so directly render the the arguments meaningless by writing their opinions first, especially since the clerks presumably know what’s going on and could easily leak such a practice. A judge can’t help having a first impression, even one that’s hard to change, but they can help affirmatively deciding that they don’t even care to hear oral arguments.

Although not part of your case, why isn’t there an argument that the “victim” should have been required to seek and acquire a civil harassment restraining order before the defendant’s non-contemporaneous conduct (speech?) could rise to the level of a crime.

Of course then the crime charged would be contempt of a court order, but the advantage would be a set of judicial eyes looking at the case after a due process hearing to determine if the speech/conduct is unlawful. (i.e., not protected speech under the First Amendment.) This would eliminate the post hoc determination of unlawful activity that may subject someone to jail/fine.

ChrisIowa: Working instead of reading blogs?

touche, were I an appellate judge, I guess.

I’m just impressed/surprised that they can (1) prepare for upcoming oral arguments, (2) do the oral arguments, and (3) write the opinions in the cases that have been argued with a turnaround time of seven to ten weeks. Both the preparation for argument and the opinion-writing take a lot of time, but you can’t ever sacrifice argument preparation since the arguments go forward on the scheduled date, convenient or not. Opinions can always be delayed until later as they’re not scheduled for release on any particular date–which I why I assumed they usually took much longer.

dcperson: That’s pretty amazing. I’m curious how they churn out opinions that quickly.

Working instead of reading blogs?

Eugene Volokh: Shelby: I was indeed a bit flustered, because I was nervous. But a judge I know told me it’s good to be a bit nervous, or at least better than to come across as glib and a know-it-all. I don’t know whether that’s true, but at least it kept me from being nervous about being nervous, in addition to just being nervous.

Stage fright. A little isn’t necessarily a bad thing:

I’ve never gotten over what they call stage–fright. I go through it every show. I’m pretty concerned, I’m pretty much thinking about the show. I never get completely comfortable with it, and I don’t let the people around me get comfortable with it, in that I remind them that it’s a new crowd out there, it’s a new audience, and they haven’t seen us before. So it’s got to be like the first time we go on. — Elvis Presley

Shelby: I was indeed a bit flustered, because I was nervous. But a judge I know told me it’s good to be a bit nervous, or at least better than to come across as glib and a know-it-all. I don’t know whether that’s true, but at least it kept me from being nervous about being nervous, in addition to just being nervous.

DCPerson: I’ve been told that the Nebraska Supreme Court works quickly, and a quick search so suggests — of five criminal cases handed down on Nov. 20, 2009 (on several topics), two were heard in early September (about 11 weeks before) and two in early October (about 7 weeks before). (For some reason, I couldn’t find the fifth on any of the argument calendars; perhaps it was submitted on the briefs.)

Can I lightly and innocently chide you for appearing nervous at the outset? You recovered very quickly, but I thought you were going to plotz at the beginning!

You certainly seemed to have the better argument. Regarding courtroom conduct, the state attorney kept trying to talk over the judges, which can’t have helped him; they seemed to know his name, so I wonder if repeated appearances have made him more casual in his approach.

Your own manner (forgive me!) seemed rather flustered, though you clearly knew the case-law well. Is it simply a matter of that being your normal behavior, or were you for some reason more distracted or unready?

Anyway, thanks again, and I look forward to seeing the ruling.

SuperSkeptic: Looking good.Your opponent was falling all over himself, off-topic, and rude.At one point, he tried to argue that now Senator Avery (then candidate Avery, as you corrected on rebuttal) was not a “public figure” because at the time of the incident(s) he was elected but not yet sworn-in…that’s incredible.Although, admittedly, I was somewhat biased in your favor while watching.

At one point he actually answered a question with a hostile question, oops.

“You should see the mail and email that we get. Do we have a right to say no?”

Sounds like the Nebraska Supreme Court could have been amici…