There's really no good answer to the question, "Counsel, you are not reading this, are you?" Which is probably why counsel for Marvin Brandt Revocable Trust stood silent for several seconds when asked the question by Justice Scalia during yesterday's oral argument in Marvin M. Brandt Revocable Trust v. U.S. It took a compassionate Justice Breyer to break the tension by saying "It's all right."
There are two very good reasons not to read a prepared statement to the Court -- it's against the rules and it's not good advocacy. Legal Times reminds us that Rule 28 says "Oral argument read from a prepared text is not favored," and the court clerk's guide to oral argument says, "Under no circumstances should you read your argument from a prepared script."
As Chief Justice Rehnquist explained in 1987 in The Supreme Court, reading to the Court "is so egregious that it is rarely seen":
The ultimate purpose of oral argument, from the point of view of the advocate, is to work his way into the judge's consciousness and make the judge think about the things that the advocate wishes him to think about. One of the best ways to begin this process is to establish eye contact with as many of the judges as possible, and this simply can't be done while you are reading your presentation.
A post at Above the Law noted that once he abandoned his script the lawyer did a good job. "Scalia just gave him the nudge he needed."
