A Fool's Errand?

Spent the morning in Rochester today.  Suit, tie, white shirt, shined shoes.  Visited with Justices Hurlbutt, Peradotto, Carni, Green and Pine for, oh, about 15 minutes or so.  Since leaving my appointed clerkship for that court in 1988, I have returned to visit many times.  Volleyed with Justices Peradotto and Carni for most of the time I spent on my feet.  My familiarity now with both the process and my subject matter has allowed me to treat appellate oral arguments as opportunities to tell the court what I think. And so I did. 

I knew my task today would be difficult.  After all, I would be asking the court to recognize or create an exception to a 2005 Court of Appeals' decision which, I contended, although further relaxing a previous relaxation of the no-prejudice rule as it applies to SUM claims, had not itself created a static, absolute rule.  I drew the court's attention to the Court of Appeals' use of the words "under these circumstances" in its concluding or holding paragraph as evidence of that court's intent that its ruling not be applied inflexibly.  When staring stare decisis in the face, it's best not to blink.  My client's only chance was not to skirt around, climb over or crawl under the wall.  It was to run through the wall.  Not as in an accidental running through a wall, but as in the 7-year-old Todd Kryzmowski, start at the end of the garage attic, run as fast as you can and hurl yourself  through the closed attic window like Superman onto an old logpile two stories below, through the wall.   

If I were a bettor, I'd bet against myself.  Or, more exactly, I'd bet against having convinced at least three of the five justices to accept and adopt the argument I made to the court this morning.  "I am not unmindful of today's date", I told the court, "but it is not a fool's errand to ask the court to modify the order appealed from to grant my client's motion for summary judgment by finding that the court below erred in applying the Rekemeyer rule."  Under the circumstances, I'd say oral argument went as well as it could.