Neinast v. Fairfield County District Library

You may have noticed that yesterday’s blog entry was MIA. I was rather busy yesterday and the evening before preparing for oral argument in my appeal of the lawsuit I have against the Fairfield County District Library.

The lawsuit is an attempt to have their barefoot rule removed. The effort has been a long and winding road.

First, you can take a look at their Code of Conduct. The rule is

Shirt and shoes must be worn in any library facility. If a child has learned to walk, the child must wear shoes.

I started way back in 2008 by writing a few letters to them, and eventually giving a presentation to their board. Going in, I was told that the reason for their rule was “decorum”, so that is what I mainly focused on. Here is that presentation (more or less — the actual delivery may have varied from these notes).

By the way, since the main library in my area, the Columbus Metropolitan Library, does not allow me in barefoot (and I lost my lawsuit against them), I have rather limited access to library services. The lawsuit is an attempt to get access to at least some sort of more extensive library usage.

You can see the full docket for the case if you want to. It is long. Very long. Three years worth, obviously. There has been a lot of back-and-forth.

I initially lost on summary judgment and had to appeal. I got a partial remand on appeal, and so we had an Evidentiary Hearing. Evidentiary hearings are a lot like a trial, so I more-or-less got to conduct one side of a trial. It was a very interesting learning experience. If you are interested in seeing how all that goes, I’ve got a copy of the transcript online.

After the Evidentiary Hearing, the trial judge ruled against me, so it was time to appeal again. On an appeal, a few briefs are exchanged, then there is the oral argument. Oral argument for an appeal is a bit of a strange beast: it’s almost a kind of Kabuki theater. Each side has a total of only 15 minutes to make its case. The one who goes first (the Appellant: me), can break up that time and leave some for rebuttal at the end. (Everybody always does so; I reserved 3 minutes, which is also rather standard.)

The tricky part is that this is nowhere near enough time, so careful planning has to go into preparing for oral argument. You need to hit what you think is most important, and even more important, you have to allow for questions for the judges. (The questions are the most important part. First, it shows that the judges are engaged. Second, it is your chance to be your most persuasive and give the judges what they might need to rule in your favor.)

So, while I had 12 minutes for my initial portion, I tried to prepare 8 minutes. That was difficult. I had to pare down all that I wanted to say to the really important stuff. You can take a look at my notes, but by the time I went to use it, I had scribbled all sorts of extra stuff on it, based on last-minute ideas.

Then during the oral argument itself, one has a very delicate tango to dance. You have to respond to the judges. Their questions highlight the issues of concern in their minds and if you don’t adequately address them, you’re toast. So it means that whatever you prepared can get tossed out the window rather rapidly, and you are doing extreme mental gymnastics to answer their questions while paring in your mind so that you still get across the critical stuff. (One way to do this, and of course I did, was to prioritize items in one’s notes, and then just chop away, in real time, the lower priority items.)

After the Library got its chance, we then went to my rebuttal, and the purpose here is to try to counter points from the Library’s presentation, and to maybe stress a final point.

The standard texts on oral argument stress that

The purpose of the briefs is to tell the Court how to rule
in your favor. The purpose of oral argument is to tell the Court
why they should rule in your favor.

I hope I did that.

So, how did it go? It was nice that the Court was fully engaged. I got my points across. I even had one judge say that she found the case quite fascinating. It must be admitted that this is not a standard run-of-the-mill case that they see every day. But I can’t predict the outcome.

What happens next is that the judges go into chambers to decide all the cases they heard yesterday (12 of them), and then the opinion gets written up. That will appear probably in 2 to 3 months.

By the way, folks might ask whether I appeared barefoot before them. This was something I seriously and fully considered. I have had other barefooters tell me that I really had to, to show them I was really serious. But I think the correct decision is what I did: I wore shoes. The reason, and I was ready to use this reason in case any judge asked me why I wasn’t barefoot, is

I’m here to argue this case, not some different theoretical case of whether I can appear barefoot before you.

It was hard enough fitting all I wanted into the 15 minutes. Time arguing about me being barefoot before the court would have wasted the time that would be better put to arguing the law in the case I am trying to win.