"Uteful" Discretion

By John Masson, Amicus editor

There's a moment in the film "My Cousin Vinny"—that legal training classic—when the title character, a Brooklyn-born lawyer, is cross-examining a witness in front of an Alabama judge.

Vinny: Is it possible the two utes --
Judge: Uh, the two what? What was that word? … Did you say "Utes?"
Vinny: Yeah, two utes.
Judge: What is a "ute?"
Vinny: Excuse me, your honor. Youths.

The roles were reversed when a similar tete-a-tete played out during a January Supreme Court hearing, after Michigan Law Professor Richard Friedman—himself a proud son of New York—deployed a highly precise word: orthogonal. The term left a couple of the justices momentarily scratching their heads.

Friedman: I think the issue is entirely orthogonal to the issue here because the Commonwealth is acknowledging --
Chief Justice Roberts: I’m sorry. Entirely what?
Friedman: Orthogonal. Right angle. Unrelated. Irrelevant.
Chief Justice Roberts: Oh.
Justice Scalia: What was that adjective? I like that.
Friedman: Orthogonal.
Justice Scalia: Orthogonal?
Friedman: Right, right.
Justice Scalia: Ooh. … I think we should use that in the opinion.

The exchange left both sides chuckling, and drew an admission from Friedman that he bore some responsibility for "perhaps a bit of professorship creeping in." And it didn't damage the argument Friedman was making in Briscoe v. Virginia, a Confrontation Clause case that the justices ended up sending back to the lower court with a one-paragraph ruling just a few days after hearing arguments.

The Briscoe case closely resembled last year's Melendez-Diaz v. Massachusetts, in which the high court ruled that prosecutors can't present reports from crime labs without live testimony from the technicians who did the work.

"Vacating and remanding the decision below was a good result so far as my clients are concerned," Friedman said. "And having nothing happen more than that was a very good result so far as the Confrontation Clause was concerned."

And what of the momentary linguistic diversion?

"I don't think it did any harm," Friedman said. "It was a brief interlude, it was amusing, and it helped make my point that the issue they were asking about had no bearing on what was before them."

That doesn't mean he'd use the same word again, however, especially now that he's been reminded that different groups of people—even those as closely related and highly educated as law professors and Supreme Court justices—tend to fish for their words in different ponds.

"Any lawyer arguing in court is trying to explain a position," Friedman explained. "The last thing you want is confusion."

Read more about Friedman's Supreme Court hearing here:
NYTimes
Washington Post (1, 2)