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Trials and Litigation

Posner tells BigLaw chief, 'stop babbling,' threatens to end argument in contraception mandate case

A contentious oral argument Wednesday before a federal appellate court panel in Chicago included a lesson in appellate advocacy for the BigLaw litigation leader representing the University of Notre Dame in a high-profile health care case.

“Don’t interrupt,” Judge Richard Posner told Jones Day partner Matthew Kairis several times during the course of a 45-minute argument. He and Kairis talked over each other repeatedly about the remedy being sought by the university in the Affordable Care Act case being heard by the 7th U.S. Circuit Court of Appeals.

Although there is a provision in the act that allows religious institutions to obtain an exemption to the statute’s contraception mandate, Notre Dame doesn’t want even the “complicity” of filing out a form to transfer responsibility for contraceptive services to a third-party provider, Kairis said. Additionally, Notre Dame argues that it shouldn’t be forced to give up a portion of its authority as the administrator of the health care plan to a contractor providing products and services the university considers morally wrong.

Posner repeatedly said that he thought Notre Dame’s objection to the exemption process concerned a “trivial” role in the provision of health care services. He sought to get Kairis to tell him whether Notre Dame objected simply to sending a letter to the feds stating something along the lines of “we’re a religious organization, and so we’re just not going to pay.”

In an increasingly aggravated tone, as Kairis sought to qualify and explain his answers and began speaking more quickly, Posner tried to pin him down and get a yes or a no response.

Posner told Kairis to “stop fencing,” demanded that he answer questions with yes or no responses, and threatened: “Look, if you don’t cooperate with me, I’m not going to let you continue your argument.”

Finally, as the courtroom battle continued, Posner gave the Jones Day partner a lesson in trial advocacy:

“Would you stop babbling?” he told Kairis. “When you’re asked a question … you’re not supposed to interrupt judges and, if they ask questions which can be answered yes or no, you answer yes or no. Don’t you understand that?”

A Religion Clause post provides a link to an audio recording of the 7th Circuit hearing. In addition to Posner, Judge Joel Flaum and Judge David Hamilton sat on the appellate panel.

Kairis declined to comment when contacted by the ABA Journal.

Columbus Business First provides a lengthy profile of Kairis, who heads the litigation department in the firm’s Columbus, Ohio, office and played football as an undergraduate at Notre Dame.

See also:

Chicago Tribune: “Judge, Notre Dame attorneys spar in school’s health care law appeal”

Wall Street Journal (sub. req.): “Judges Push Back on Notre Dame Challenge”

Third Apple: “How not to conduct an oral argument”

Updated Feb. 14 to clarify the lede.