The courtroom clerk (the long-serving and right-honorable Karen Kirksey-Smith calls the two cases, saying that the counsel for the first case (Hoeg v Lawson) should enter the counsel area first. They do, but yours truly was a little confused as to whether I was to go into the counsel’s area with or after them or wait until I was invited. (The same Deputy Attorney General was handling both cases, so she was already in the counsel table area.

I didn’t want to mess up, so when she called our case. I announced my appearance for our plaintiffs, and the DAG announced hers. I was still in the audience area, right in front of the wood fence swing door thingie separating the two areas.

So I ask:

“Judge should I stay in the on-deck circle or do you want me to enter and join in now?” He asked me what I wanted to do. I told him since most of the issues were overlapping, it made sense to me to join and he pointed out and pointed to the empty third counsel lectern facing the judge’s bench and invited me to take it.

Now, 9,999 out of 10,000 attorneys would have responded with “thank you your honor” and proceeded to the open lectern

So, what does that 1 solitary lawyer say, something that no other lawyer in federal court would think of saying? Well, to clarify, I’m not sure I actually thought about it. It might have been more of a blurt-it-out kind of thing, (which raises a whole other kettle-of-fish). Whatever. Raising both of my hands, and speaking in a voice a little louder and a little more exuberant than the occasion might have called for, I respond:

“Tag team, I love it!”

Now, maybe some people in the courtroom were taken aback or even agast, and maybe a few even laughed at my response, but all of them were surely thinking, what kind of idiot says that to a federal judge?

But everyone in the courtroom (including me) laughed out loud when Judge Shubb shot back:

“Yea, but I get to call the tag.” Touche!

Maybe I mumbled something like “fair enough”, or maybe it was just that I was still laughing when I said it.

He (with a little help from me) set the tone for a discussion with openness and a touch of levity and some back-and-forth banter while showing due respect to the important issues in the case. Or maybe the lesson is that I got away with it (and other such exchanges with him) this time, but next time, I should stick with “thank you your honor.” I’ll give you my final position after I read his decision.

(excerpted from “Things I Should Never Have Said to Judges“, Vol. 1 of 4, expected pub. date, May, 2024)

Rick Jaffe, Esq.