litigation advocacy
Why did Justice Antonin Scalia advise not talking back to judges, not even politely?
<p>I copied and pasted the transcript from YouTube commencing at <a href="https://youtu.be/mI3Me2Cf2Mw?t=5465" rel="nofollow noreferrer">91:04</a>, the end of the 2007 Ames Moot Court Competition. As you can read, the English barrister's comeback was polite — no profanity or sexual language. But why did Justice Scalia still disadvise this comeback? What exactly is wrong?</p>
<blockquote>
<p>The other thing I think you all did quite well — you have to know how to handle the boorish judge.
Trust me, I was no nastier today than I am usually.
And you have to know how, with composure, to respond
to that judge, you know.
You can't respond in kind.
There's a wonderful story that I think Justice Jackson used
to tell about the argument in England,
where at a certain point, their arguments went on for days,
or still did, until recently.
The judge looked down at Counsel,
He said (ENGLISH ACCENT) Counsel,
I've been listening to you for three hours,
and I'm none the wiser.
[LAUGHTER]
And the barrister, who probably lost his case,
said, (ENGLISH ACCENT) I expected that, my Lord.
But I thought you might be better informed.
[LAUGHTER]
You'll have to resist making those comebacks to the judge
who is torturing you.</p>
</blockquote>

<p>It is a joke to illustrate the advice that just because the judge is rude to you you should never be rude back, and definitely not with a subtle rudeness couched in polite terms.</p>
<p>In British English if you ask someone for an explanation of something and their  reply does not really provide any enlightenment at all, and certainly no real explanation, you might say &quot;I am none the wiser&quot; meaning that your understanding of the matter has not been increased by what you have been told.</p>
<p>But the usual meaning of &quot;wiser&quot; is to do with a general characteristic someone has. - e.g. &quot;more experience made him wiser person&quot;. Saying that someone is wise in this sense is a compliment and saying that they are unwise is a criticism. Saying that someone's understanding of a matter has increased - that they are better informed -  is often neutral - just a fact.</p>
<p>Essentially what the judge is saying is that despite days of supposed explanation by the barrister, the barrister has not really come to the point and explained anything - the judge is criticising the barrister.</p>
<p>The barrister, in retaliation, pretends to take the phrase &quot;I am none the wiser&quot; said by the judge literally (rather than idiomatically) as if the judge was saying &quot;I am a fool and you have not made me any wiser&quot;.</p>
<p>The gist of what the barrister is saying is &quot;you are a fool and trying to make you wiser would be a hopeless task but I was trying my best to explain this matter to you in words even a fool like you would understand&quot;.</p>

<p>In the context, I believe Justice Scalia is said that it is better not to make a sarcastic comment or retort to a judge in the case that you are working on. The comment doesn't contain profanity or sexual but it is not polite -- he is insinuating that the judge is 'uninformed' which could make the judge angry.</p>

<p>The exchange quoted by Justice Scalia is most often attributed to <a href="https://en.wikipedia.org/wiki/F._E._Smith,_1st_Earl_of_Birkenhead" rel="nofollow noreferrer">F. E. Smith</a> - although he was the kind of person, like Winston Churchill or Oscar Wilde, who tends to have things attributed to him. It's not clear that he <em>actually</em> said this, but it's certainly the kind of thing that people like to imagine he said. His general reputation and image is an intelligent and tenacious orator who achieved great career success at a young age, including being named <a href="https://qcappointments.org/" rel="nofollow noreferrer">King's Counsel</a> less than a decade after being called to the Bar. So it is roughly in character that he would be associated with making clever and irreverent remarks to judges.</p>
<p>Even in England, where courtroom practices are different from the U.S.A. in several regards<sup>1</sup>, the quoted remarks are meant to be understood as unusually rude. We're meant to be amazed that Smith could get away with it, not take it as a model for how we ought to behave ourselves. I think the English tradition, especially a century ago, tends to value rhetorical cleverness and a certain amount of formal banter - where one can make jokes and allusions using &quot;proper&quot; courtroom language, while still advancing ones case. This comes across in other legal anecdotes which often feature witty ripostes, puns, and so on, usually taking place in open court.</p>
<p>In this tradition, the point is that barristers are <em>meant</em> to be very good at thinking on their feet, mastering a large corpus of detail, and working within the highly structured context of the trial; and specifically for the English, wit can signal high status as a kind of <a href="https://en.wikipedia.org/wiki/Sprezzatura" rel="nofollow noreferrer">sprezzatura</a>. By the same token, it is very easy to miss the mark, including by letting oneself slip over the line into actually insulting the judge.</p>
<p>Whether this remark would be taken as a &quot;real&quot; insult is quite contextual. I could imagine that (assuming this ever happened) the judge might understand it as being in the nature of playful banter, especially if the barrister went on to actually address the substance of the judge's criticism. Much would depend on the tone and on the history between the people involved. I could also imagine a judge being personally insulted but continuing to deal fairly with the case. What Justice Scalia is suggesting to the students is along the lines of &quot;don't try this at home&quot;, as a fresh-faced young advocate is more likely to mess up their case (and potentially sour their relationship with the judge, people the judge talks to, their client, people their client talks to, etc.) than to achieve anything by the comeback.</p>
<hr><sup>1</sup> What I'm gesturing at here is that while both kinds of court are formal affairs, the popular image of an American court is that it's full of people in expensive suits shouting "Objection! Badgering the witness!", and a British one is full of people in silly wigs murmuring "Uhhh, my Lord...?".
