ORAL ARGUING

A Bit of Brooklyn in the Supreme Court

Thursday, March 29, 2007

Deference, with maybe just a touch of obsequiousness, is the rule for lawyers taking their cases before the nine justices of the Supreme Court.

So when Harvard law professor Arthur R. Miller yesterday mixed it up a little with the court's ever-ready pugilist Antonin Scalia, some of those in the packed courtroom later talked about it as one of those did-you-hear-that moments at the court.

Miller, whose white hair and dark, bushy eyebrows are familiar from his legal commentaries on ABC and his debate-style shows on PBS, is representing investors who want to sue Tellabs, alleging securities fraud. [Story, Page D3.]

Congress has set a high bar for such lawsuits: Plaintiffs must show not just credible allegations but a "strong inference" that the company acted with wrongful intent.

The justices wondered whether you could assign a percentage to such a "strong inference," a 33 percent chance plaintiffs could convince a jury the allegations were true, a more than 50 percent chance?

"I think it's 66 2/3 ," Scalia said, pulling another number out of the air.

"Is that because you never met a plaintiff you really liked?" Miller asked the conservative Scalia.

The room erupted in laughter. Scalia smiled. A little.

Miller backpedaled. A little. "I took a liberty there with the justice," Miller said.

But it was not over.

Scalia's chance came later, when Chief Justice John G. Roberts Jr. prepared to pounce on one of Miller's arguments. Miller stopped him first.

"Don't take me literally on that," Miller said. "For heaven's sakes, I'm from Brooklyn. I'm very colloquial. I'm very sorry about that.''

"Let me write that down," Scalia said with a satisfied smile. "We should not take you literally. All right."

Roberts was set to rule. "Okay, you two are even now."

-- Robert Barnes


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