Academic journal article Journal of Appellate Practice and Process

Why Me?

Academic journal article Journal of Appellate Practice and Process

Why Me?

Article excerpt

When I was asked to write about my first Supreme Court argument, I wondered what could possibly be interesting about that subject. Then I realized that there is at least one good question to ask anyone about his or her first Supreme Court argument: Why were you hired? That is, why in the world would anyone entrust their Supreme Court case to someone who had never argued one?

Supreme Court arguments are highly coveted and a number of experienced, outstanding advocates regularly appear before the highest court. The advantages of experience are obvious, and every party who has a case before the Supreme Court has an array of choices among that group of attorneys, most usually backed by excellent law firms and each with a track record that assures a highly competent performance, and often a stellar one. Experienced advocates are expensive, of course, but a party with limited resources can almost always find one or more seasoned Supreme Court veterans to take the case for a discount--or for free.

In my case, the first trip to the Supreme Court podium led through Williamsburg, Virginia. In the fall of 1989, I was a panelist at the Supreme Court Preview at William & Mary Law School, which had become a favorite annual event for me. Cosponsored by the Institute for the Bill of Rights and the American Society of Newspapers, the weekend consisted of the correspondents who covered the Supreme Court and a few law professors previewing the leading cases of the Term for editorial writers and interested members of the public.

In 1989 the Preview was held in late October, and one of the cases on the list to be discussed was Baliles v. Virginia Hospital Association. (1) As a recent grant, it was near the end of the list of cases to be decided, and the panel assigned to assess major statutory cases never got to it.

The week after Williamsburg, I was in my office at Duke when I received a call from Judy Henry, who introduced herself as one of the Richmond lawyers who had successfully argued the Virginia Hospital Association case in the Fourth Circuit. (2) She had attended the Supreme Court Preview to learn how the panelists would assess the prospects for her case in the Supreme Court, only to be disappointed by the absence of discussion of VHA. But, she said, she did have the opportunity to hear me speak at the Conference.

Coming to the point, she said she would like to suggest to her client the possibility of considering me to argue the case in the Supreme Court. She, her partner Martin A. Donlan, and Laurens Sartoris, the head of the Virginia Hospital Association, had already made several trips to Washington to interview each of the law firms with leading Supreme Court practitioners, and were on the verge of choosing one.

It was still possible to consider me, but the selection process was basically at an end and time was extremely short. The petitioner's merits brief was soon to be filed, and work would have to begin immediately on the Association's brief for respondent, due thirty days later. They needed to finalize their decision within a couple of days. It was clear that if I wanted to be considered, I would have to come to Richmond the next morning to be interviewed.

I told her I would think about whether I could possibly attempt to do this case, and would phone her back in a couple of hours. Her call left me dazed. I had never argued a case in the Supreme Court, or been responsible for briefing one on the merits. I had argued a few cases in the Courts of Appeal. (A year earlier, my wife had gone to Washington to be Special Assistant to the Director of the FBI, and while she did that, I became a Professor in Residence in the Civil Appellate Section at the Department of Justice in order to get some "real" experience.)

And I had written my share of law review articles and been active in public affairs, testifying fairly frequently on constitutional issues before the House and Senate Judiciary Committees. …

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