A little humor can go a long way toward defusing tense situations in oral argument, with one important caveat: when it comes from the bench only. Attempts by counsel to loosen up the proceedings often fall flat, or worse, especially when they come at the judges' expense.
That sounded like the case during Monday's arguments before the Ninth Circuit U.S. Court of Appeals in Verdugo v. Target Corp., 10-57008. The issue was whether the big retailer could be sued by the family of a woman who suffered a fatal heart attack in a store, on the theory that Target should have had a defibrillator available to resuscitate her.
The court sounded like it was leaning toward certifying the question to the California Supreme Court, but Ryan Craig of Mission Viejo's Trachtman & Trachtman was making a hard-charging push to end the case now. "I believe the California Supreme Court has already given this court a definitive answer in the case law," Craig said.
"Well, of course it hasn't," Judge Marsha Berzon told him. "Those cases are about something completely else."
"I don't agree, your honor," Craig said.
"I don't respectfully agree," Judge Harry Pregerson corrected him.
"I've never used an AED, so I cannot answer that question directly," Craig said.
"We've got 'em right out here" in the courthouse, Pregerson said.
That's when Craig, who has a speaking style that calls to mind Joe Pesci in My Cousin Vinny, got into trouble. "You want to be my first trial case, I'll be glad to do it your honor," he told the 88-year-old Pregerson.
"What did you say?" Pregerson replied. "What did you just say?"
"I said I would be willing to try it if you want to be the first patient," Craig repeated.
Berzon quickly switched the subject. Why was Target pushing so hard the idea that a retailer has no obligation to render first aid, she asked.
"That is not the only position that Target is taking in the case," Craig said. "And I won't say that's the strongest argument, either."
"So why are you taking it so strongly?" Berzon said, now getting a chance to laugh.