May it please the court ...

In a few hours I will stroll over to the UW School of Law and serve as a moot court judge in a competition for first year law students.  I'm always impressed by the poise and skill possessed by students who have been studying law for only a few months. 

The issue tonight will be the ever-popular one of applying the Fourth Amendment's prohibition of "unreasonable" searches and seizures to the specifics of a particular case.  Since I'm a judge of a case under review, albeit mock review, I can say no more.

But it reminds me of my own first year moot court experience.  The mock hearing was the culmination of months of research on a complicated problem, with our briefs probably counting more toward our grade than our oral presentation.  I partnered with another good student, Mark, and we worked well with each other.  The problem was less sexy than "search and seizure" or than criminal law in general.  It was -- and my memory has faded to a large extent -- an application of the Federal Tort Claims Act to certain acts of the government.

I'd tell you more, but I honestly can't recall the hypothetical facts we were litigating.  But the issue boiled down to an application of the Supreme Court's decision in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956 (1953).  (I give you the citation in case you're so excited by this post that you need to look it up.)   Dalehite arose out of a disastrous explosion of a ship carrying 2,100 tons of ammonium nitrate fertilizer near Galveston, Texas -- the deadliest industrial explosion in U.S. history.  Victims sued the federal government for negligence, and the trial court found the government liable for a litany of acts and failures to act. 

The Supreme Court reversed the trial court's verdict.  It held that whenever the government acts in the same manner as a private individual or corporation, its sovereign immunity has been waived by the Federal Tort Claims Act.  But when the alleged negligence was in pursuit of governmental policies or interests, so-called "discretionary acts," its immunity had not been waived.  The suit was dismissed in its entirety, because all the alleged negligent acts had been "discretionary acts."

The Dalehite decision was complex, and offered many aspects that had to be investigated; its implications had also been interpreted by later opinions from lower appellate courts.  Dalehite provided Mark and me meat for months of research and writing, before we came to the time for moot court arguments.

At the hearing itself, in the late spring of our first year in law school, I was petrified.  I had never done any public speaking.  On the other hand, my briefing was exhaustive (and no doubt exhausting), really more a law review article (and a good one) than an argumentative brief.  But we made good partners, because Mark was a brilliant speaker, and made up for my appearance during my half of the argument, where I stared at my inquisitors like a deer caught in the headlights.

Moot court teams are scored by the judges not on the merits of their case, but on how they present it -- in our case, both by the briefs and by oral argument.  We won.

But I assured everyone afterward that I would become some sort of probate or tax law attorney.  I would never, never be a trial attorney, where I would have to argue cases to either a judge or a jury, or an appellate attorney, where I'd have to argue to an appellate panel as we had done at our student moot court.

But I did, of course.  And enjoyed it.  Who can predict the future?   
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CORRECTION: I learned after I arrived that these were all second and third year students. Excellent job by everyone, as expected.