We have listened to the oral argument in Doyle v Palmer before the Second Circuit, posted on the court's website. The case challenged the affidavit of character required for admission to the bar of the Eastern District of New York. In making his argument, counsel for appellant invited the panel to ask questions because he did not want to merely repeat the arguments in his brief. A judge asked why the appeal was brought because the plaintiff controlled the contents of the affidavit and could have declined to submit the affidavit that was filed. Counsel suggested that the judge did not understand his argument and asked the judge "are you serious?" The judge thereupon withdrew his question, and counsel sarcastically added "I see you read the briefs thoroughly." The attorney was told he was acting "disrespectfully and discourteously," and asked to sit down.

After the United States attorney made a short statement, appellant's counsel stood up again to make rebuttal but was told he had "waived it." He apparently continued to talk and refused to leave whereupon an officer was asked to escort him out of the courtroom. Even if the appellant's argument was that he could not amend the contents of the required affidavit, the statements of his attorney were unprofessional and inexcusable.

Many appeals can be argued by lawyers who tried the case or are familiar with the record; others should require attorneys with appellate experience or specialization. Many arguments justify a mere statement that counsel does not want to repeat the briefing and invite questions. Argument is a matter of right in our Appellate Division and scheduled on almost all appeals in the Supreme Court. Argument is a good opportunity to clear up issues in the record or answer questions or concerns the court may have. All require attorneys to be respectful, listen to the questions and give direct answers. We favor certification for appellate litigators just as the certification process has been developed in other areas, but in any event, the appellate court room is another place in which civility is required. It should be encouraged by all members of the bench and bar.