A 3L in Federal Court: Observations of the Nacchio Argument

As you know, students who contribute to The Race to the Bottom frequently follow ongoing litigation. The Nacchio trial is one such example. Today, two students, Trevor Crow and myself attended en banc hearing for the Nacchio appeal. For the two of us, the federal courthouse was an uncomfortable environment and a far cry from the comforts of law school.

My first observation was that Maureen Mahoney was under fire. Mahoney began her argument by stating the government’s theory. It claims the defendant forfeited his right because the defense failed to say, “I want a hearing.” Immediately Judge Briscoe interrupted Mahoney and stated, “Isn’t that a pretty good theory?” Before Mahoney could finish her answer, Judge Holmes interrupted and asked about whether the district court could properly exclude the witness without giving the defendant a hearing? Mahoney responded that the exclusion was a “surprise” and that it was the court's obligation to hold a Daubert hearing. Briscoe, who was noticeably antagonistic, further questioned Mahoney about why the court should have the obligation when Nacchio is the one who wants the expert to testify. At one point, Judge Lucero said he was “perplexed” by the defense's argument.

On the light rail ride back to school, several things became apparent. We were both surprised how nine judges engaged two of the country’s best appellate attorneys. To be sure, Mahoney took the more difficult questions. But even with mostly softballs, at one point Judge Holmes saw fit to rescue Edwin Kneedler from Judge McConnell ’s inquisition. As a student observer, I left feeling that no experience in law school has prepared me to handle such an examination. The Socratic Method leaves much to be learned. Even the best had trouble persuading the court. As both Trevor Crow and Professor Brown note, it seems the court will vacate the panel’s decision and reinstate the conviction.