Mum Judges Complicit in Injustice

Bloody Second Circuit

Focus. That is the most important thing to have and to maintain in appellate argument. Time is short. Good communication is key. Know what you want to say and find a way to say it.


That is the sum and substance of what I have to teach on appellate advocacy. After more arguments in various appellate courts than I can recall, I thought I was an old hand. That I had seen it all before. But I had never bled for my client.

Until today.

I was first up on today's docket in the United States Court of Appeals for the Second Circuit. I've been there scores of times. Today's case was a criminal appeal. My client is serving 30 years for armed robbery. I'd like to get him a new trial.

I was arguing by videoconference from Hartford. The court's camera wasn't working, so the panel could not see me.

Good thing. A minute or so into argument I wiped my nose. Blood. Soon it began to trickle, and then drip, down my hand, onto my notes, onto the appendix, onto the lectern, on my shirt, on my jacket. What to do?


I kept arguing, but then my hands were slimy with blood.

"Judge Pooler, I have sprouted a bloody nose," I said, I think. "I need just a moment to walk five paces to the men's room here and get some tissue."

"I am glad we can't see you," the judge said. She is of infinite good cheer. She looked a tad concerned. Had she seen me, she would have seen panic.

"The Government bloodied my nose at trial," I resumed, "and now they have done so on appeal." Then I resumed argument.


I was invited not long ago to be part of a panel on appellate advocacy. I agreed. When the program flyer was published and I saw who my fellow panelists were, I at once felt out-classed and wondered what in the world I could talk about.

I now have a topic: Blood in the Second Circuit. Focus.