Beer and Ale:
The Clerk of the Court at the U.S. Supreme Court put out a very helpful guide for lawyers who will be arguing before the Court that contains this anecdote:
One counsel representing a large beer brewing corporation was asked the following by a Justice during argument: "What is the difference between beer and ale?" The question had little to do with the issues, but the case involved the beer brewing business. Counsel gave a brief, simple, and clear answer that was understood by everyone in the Courtroom. He knew the business of his client, and it showed. The Justice who posed the question thanked counsel in a warm and gracious manner.
Seems to me there are two possible lessons here. First, always prepare for oral argument. Second, know your beer.
Allen G:
I wonder what answer he did give. The legal meaning in many states that beer is a fermented malt beverage of less than 4% alcohol by weight, and ale is stronger, is quite different than the modern brewing terminology, where beer is the generic term for any fermented malt beverage and ale is beer brewed with a non-lager yeast (lager yeasts being defined by the ability to completely ferment raffinose, a trisaccharide). There's also the archaic English definition, where ale is the old unhopped beverage popular before the 17th century. In popular non-brewing use, I think most people consider ale to be an older, stronger type of beer.
3.10.2008 7:00pm
Would that counsel had told his interlocutor that regardless of the difference, the Justice did not owe him one of either.
3.10.2008 7:02pm
Anderson (mail):
If the 5th Circuit's sex-toy case gets to the SCOTUS, counsel should be prepared for *lots* of background questions.
3.10.2008 7:08pm
Scaldis Noel:
It is too bad that the guide doesn't actually give the text of the answer given to the question "What is the difference between beer and ale?" As a homebrewer, I know that the difference is a precise one relating to top fermenting (ale) vs. bottom fermenting (beer) yeast. However, outside of those who actually brew, or those who are otherwise interested in the details of brewing, the distinction is often ignored. As a result both "ale" and "beer" are commonly, though incorrectly, used interchangeably. Even in brewing circles, both terms are often used generically to include any beverage in the general category, and are only used correctly when discussing the brewing process itself.
3.10.2008 7:11pm
Scaldis Noel:
By the way, my screen name, one I have been using for years, is a true top-fermented ALE, and quite delicious.
3.10.2008 7:12pm
Richard A. (mail):
If he worked for a large brewer, he could have truthfully answered, "The difference is that ale often tastes good, not like the club-soda-with-alcohol confection my client cranks out."
3.10.2008 7:20pm
Mike& (mail):
Too bad you don't owe me a beer or ale.
3.10.2008 7:25pm
John (mail):
Somehow, I don't think he gave Allen G's answer, helpful though it was.
3.10.2008 7:25pm
Doubt he gave Richard A.'s answer either.
3.10.2008 9:08pm
John Burgess (mail) (www):
I'm betting on a version of Scaldis Noel's proffer.
3.10.2008 10:13pm
dcuser (mail):
The lawyer in that anecdote was the late (and much missed) Bruce Enniss (formerly of Jenner &Block) and I believe that it was the Rubin v. Coors Brewery case on commercial speech.
3.11.2008 9:29am
Rock Chocklett:
Be sure to take advantage of any opportunity to hear Mr. Suter, Clerk of the Supreme Court. He was a guest speaker at my law school. He is witty and provides many interesting anecdotes and "inside" information about his time with the Court.
3.11.2008 2:18pm
mike the home brewer (mail):
There is no difference between "beer" and "ale;" the latter is a subset of the former. Beer comes in two varieties, as others have noted; (1) lager (uses "bottom fermenting" yeast that ferments at relatively cool temperatures; (2) ale (uses "top fermenting" yeasts that ferment at warmer temperatures. (In the UK, many people (incorrectly) refer to "beer" and "lager" (implying incorrectly that only ale qualifies as "beer.)). I suggest that any of you confused on this consult any of Michael Jackson's (no, not Mr. White Glove) books on beer.
3.11.2008 3:20pm
Pettifogger (mail):
From the transcript of the oral argument of Rubin v. Coors Brewing Co., 514 U.S. 476, 115 S.Ct. 1585 (1995):

QUESTION: What is ale? What's the difference between ale and beer?
MR. ENNIS: Well, to the best of my knowledge, Justice Scalia, ale is a malt beverage, but it is produced quite differently from beer. Beer is what's called a bottom fermentation process, and ale is a top fermentation process.
QUESTION: Ah, that explains it.
3.11.2008 3:50pm
Randy R. (mail):
I seem to recall that ale figures prominently in various children's stories, though none come to mind at this moment.
Doesn't Santa sit down and drink a pint of ale at some point in the story?
3.11.2008 8:38pm
JWR (mail):
When I clerked on the 4th Circuit the court heard a criminal appeal involving the schedule for restitution payments for cherry trees cut down in the national forest. Early question to the gov't (entirely unrelated to the substance of the appeal), "Now what sort of cherry trees were these?" Government counsel had no idea. Much of the oral argument was spent pondering the types of cherry trees in the national forests of West Virginia.

The government lost.
3.12.2008 1:48pm
Never Been There:
I also heard the Clerk (General Suter) give a talk on oral argument at my law school, and he mentioned this as a good example of an attorney knowing his client's business.

He also told the rest of the story, in which the CEO of Coors, who attended the oral argument, was convinced his counsel's answer was wrong, and that this would cost him the case. So they went back to the attorney's office and called the master brewer back in Colorado -- who confirmed that the answer was right. Ouch.
3.12.2008 2:51pm