What Not To Say at Oral Argument

U.S. v. Marquez-Diaz, 2009 WL 826840 (3/13/09) (unpub'd) - Just a cautionary tale about what counsel says at oral argument. The 10th had issued an earlier decision saying counsel had waived a particular issue at oral argument. The 10th granted the petition for rehearing and begrudgingly addressed the issue, insisting all along counsel really did waive the issue. The 10th recounts that in response to a judge's question:"And so it was a valid traffic stop at its inception?," counsel said: "True, I am willing to let that go" and counsel never returned to the point.