Tinder joins the big leagues with seat on 7th Circuit
February 29, 2008
Tips for practitioners
Lawyers familiar with his work describe an expansive body of written opinions and scholarship that is meticulous and thorough. They said practitioners who appear before an appellate panel that includes Tinder can expect respectful, but pertinent questions from him.
“He’s not going to bully lawyers at oral arguments,” said Kathleen DeLaney, managing partner of the Indianapolis litigation firm DeLaney & DeLaney who tried three cases before Tinder in district court.
She offered this advice to practitioners appearing before him: “Don’t run from his questions.”
“If he asks a question, he wants to know the answer,” DeLaney said. “He won’t ask questions for the purpose of interrupting a lawyer’s flow or sending him off on a red herring. He will be asking questions designed to illicit information he thinks is important for the ultimate decision.”
That’s how Tinder summed up his own advice to lawyers who will appear before him.
“Lawyers are sometimes more concerned about, ‘Why is the judge asking that question?’ Or, ‘I hope that question isn’t really directed at this, because I want to talk about that,”’ Tinder said. “I can understand those concerns, but the principal focus needs to be answering that particular question. If you can use that answer to develop other arguments, or go to other points, that’s terrific. But get the question answered first.
“Don’t try to dance around the question to get somewhere else,” Tinder said. “The judge does it to find out what the answer is from that lawyer’s perspective.”
Tinder said it’s too early in the job for him to have a “Top Ten list of things to do and what not to do,” but here are a few more tips for appellate practitioners appearing before him on a panel:
Preparation, Tinder said, is the key.
“We think about lawyers being these wizards in the courtroom, or wonderful on their feet. But really, as anyone who is around the business long enough knows, there is a lot of drudgery in the office, preparing to do these wonderful things in the courtroom,” he said.
At oral argument, “Go right to the critical points that make a difference in your case,” Tinder said. “If there are parts of your position that aren’t favorable to you, or aren’t your stronger positions, be frank to admit it. But get to the parts of a case that make a difference for your client as quickly as you can.”
What’s an appellate practitioner to do if she’s made all her points, but hasn’t filled up all the time allotted?
“Gosh, if they’ve made their points, sit down. That’s fine,” Tinder said. “If the judges have questions, my impression is they’re not at all hesitant about asking them.”
And what if the lawyer believes there isn’t a yes or no answer to a judge’s question?
“It’s certainly appropriate for a lawyer to say, ‘Judge, there really isn’t a direct yes or no, and the reason for that is this and this,’ ” Tinder said. “But make sure it really is a situation where you really can’t answer it yes or no. Don’t try to obfuscate something to avoid something the judge is trying to point out.
“The strongest case has some weak points, and, if the judge is asking about one of the weak points, it’s always very impressive when a lawyer can admit that weakness, but explain how that’s not significant in the bigger picture, and direct the court back to the stronger points of the lawyer’s case.”
What if the lawyer simply does not know the answer to a judge’s question?
“Don’t make up an answer,” Tinder said. “It’s certainly understandable to say, ‘I just don’t know but, if the court would allow me, I could submit something after the argument.’ … There isn’t even a judge in the world who’s read every case and remembers every holding.”
Tinder doesn’t have a particular formula, he said, for what grates on him when it comes to lawyers. He dislikes the moments of “bickering among the lawyers, as opposed to advocacy on behalf of the clients.” But generally, he said, there’s a lot to like about lawyers.
“Lawyers are some of the most interesting people you’ll ever meet. They always have interesting hobbies, they’re energetic people, they’re problem solvers. …They’re fun to talk to,” he said.
Tinder should know. He is married to a lawyer. His wife, Jan M. Carroll, a former journalist, is a partner in the Indianapolis office of Barnes & Thornburg.
“I have a bias toward lawyers,” he said.
Comments
Got something to say?