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THE TRANSCRIPT

The Ultimate Lawyer's Nightmare

December 12, 2000|Norman Kempster

History will recall Monday's hearing as the U.S. Supreme Court's most direct intervention in the process of choosing a president. But for Joseph P. Klock, who argued the case on behalf of the Florida secretary of state, the day likely will be recalled for something far more personal-the ultimate lawyer's nightmare.

Klock, a bit player in the legal drama that matched lawyers for Vice President Al Gore and Texas Gov. George W. Bush, twice called justices by the wrong name, a gaffe that produced titters in the usually staid high court chamber.

In response to a question from Justice John Paul Stevens, at 80 the court's oldest member, Klock said, "Justice Brennan, the difficulty is that under ...

He broke off, realizing that he had used the name of a justice who died more than three years ago.

"I'm sorry, that's why they tell you not to do that," he said, referring to the use of a justice's name in answering a question.

But the lesson did not last. Minutes later, in response to a drumfire of pointed questions from Justice David H. Souter, Klock said: "Justice Breyer, what I'm saying is that ...

Souter cut him off, "I'm Justice Souter. You've got to cut that out."

"I will now give up," Klock said.

But as he continued his argument, Justice Antonin Scalia prefaced a question with a remark that prompted a loud burst of laughter in the courtroom. "Mr. Klock? I'm Scalia," the justice began.

"Yes, sir," Klock said. "I remember that. It will be hard to forget."

Lawyers said the incident demonstrates that even seasoned attorneys are subject to stage fright when facing the nation's highest court.

A few years ago, Walter Dellinger--at the time acting U.S. solicitor general, the government's top lawyer in arguments before the Supreme Court--mixed up Justices Sandra Day O'Connor and Ruth Bader Ginsburg in answers to questions from the bench.

"People get stage fright in front of every court," said E. Lawrence Barcella Jr., a Washington trial lawyer.

But in the legal battle over the disputed 2000 election, Barcella said, Klock's blunders might also represent "a combination of information overload and sleep deprivation" among lawyers handling the high-stakes case.

"The fact that it is starting to show is not surprising."

Klock himself pointed to fatigue as the culprit.

"As tired as I was, I might have called them Justice Reno," he said after the hearing. He was referring to Janet Reno, a former Miami prosecutor who now serves as U.S. attorney general.

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