Charles_Fried_at_Harvard(2)In Part I of our interview with former Supreme Judicial Court Associate Justice Charles Fried, he offered advice to Massachusetts appellate lawyers on brief writing and preparing for oral argument. As promised, in Part II, Fried shares some examples of appellate advocacy drawn from his own practice.

Duane Reade Inc. v. St. Paul Fire and Marine Ins. Co., 411 F.3d 384 (2d Cir. 2005), involved a claim for business interruption coverage arising from the destruction of the World Trade Center by terrorists on September 11, 2001. Fried represented the insurer in the appeal to the Second Circuit. At oral argument, Fried used a metaphor that he believed helped capture the panel’s attention. “What the plaintiff has done,” he argued, “is place all its eggs in one basket…but the basket has a hole in it.” The strategic use of metaphors like this, Fried believes, is important in order to paint a picture for the judges.

However, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), Fried offers a cautionary example of how your own metaphor can be used against you. In an attempt to minimize the impact of overruling prior precedent, Fried, arguing to the United States Supreme Court on behalf of the Justice Department, suggested to the justices that all they had to do was “pull the thread on this one.” Opposing counsel, Frank Susman, seized on that language in rebuttal: “It has always been my personal experience that when I pull a thread, my sleeve falls off.” Fried cites this as an example of how an attentive appellate advocate can turn an opponent’s argument against them.

Directing our attention back to Massachusetts appellate practice, Fried explained how the role of oral argument changed during his tenure as an Associate Justice on the Supreme Judicial Court. When Fried was first appointed, only the reciting justice would receive the full briefing in advance of oral argument. The other justices received a memorandum summarizing case. This resulted in a colder bench than what we are accustomed to today. During his tenure, Fried made it his practice to request the full briefing in advance of oral argument. That trend took hold with the other justices, and as a result, oral argument soon began to look a lot more like it does today, where advocates often recite only the first few sentences of their prepared remarks before being peppered with questions from the bench.

Photography by Matthew W. Hutchins, some rights reserved.

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Photo of Jonathan Small Jonathan Small

Jonathan Small is a member of the firm’s Litigation Section and Insurance + Reinsurance Group. His complex commercial litigation practice regularly brings him into Massachusetts trial and appellate courts on behalf of insurance companies, real estate developers, and other businesses. His interest in…

Jonathan Small is a member of the firm’s Litigation Section and Insurance + Reinsurance Group. His complex commercial litigation practice regularly brings him into Massachusetts trial and appellate courts on behalf of insurance companies, real estate developers, and other businesses. His interest in appellate practice began in law school when, as a student attorney at Georgetown Law’s Institute for Public Representation, he wrote an amicus curiae brief on behalf of the AARP in U.S. Supreme Court case Warner-Lambert v. Kent, 128 S. Ct. 1168 (2008).

Jonathan has defended clients against bad faith and unfair trade practice claims brought under state consumer protection statutes, including the Massachusetts Consumer Protection Act (Chapter 93A). He has successfully argued dispositive motions in federal and state trial courts, and defended those rulings on appeal. He has also defended clients in class action lawsuits and defeated attempts at class certification at the trial and appellate levels.

Jonathan grew up in the greater Boston area in Easton, Massachusetts. He attended College of the Holy Cross in Worcester, Massachusetts, where he earned his undergraduate degree and majored in philosophy. After graduating from Holy Cross, Jonathan served as an AmeriCorps VISTA supporting low income communities in Miami-Dade County, Florida. He then matriculated at Georgetown University Law Center in Washington, DC, where he was a staff editor of the Georgetown Journal on Poverty Law and Policy, competed in mock trial as a member of the Barristers’ Council, was named a Global Law Scholars Program fellow, and served as a research assistant to Professor Charles R. Lawrence, III. Following law school, Jonathan clerked for the Honorable Lynn Leibovitz of the District of Columbia Superior Court. After the clerkship, he worked at Goulston & Storrs in Boston before moving to Connecticut with his family and joining Robinson+Cole.