Supreme Court Advocacy: Acquiring the Necessary Expertise
Frederick, David C., Journal of Appellate Practice and Process
Advocacy before the Supreme Court of the United States is not for the faint-hearted. The issues are difficult, the cases momentous, the briefing a challenge, and the oral arguments a test of the first order. The Court's decision--whether a unanimous victory, a unanimous loss, or something in between--can feel like an anticlimax after the lawyer has lived through the push leading up to the oral argument, and then survived the argument itself.
The challenges are especially daunting to the first-time or infrequent advocate, who can put heart and soul into a case but still not have a clear idea of how best to present it. Supreme Court advocacy, like most other professional endeavors, gets easier with experience. But the novice can acquire the necessary experience only derivatively, through consultations with lawyers who have appeared before the Court in other cases.
That's where the resources described in this section come into play, for as Justice White used to tell his law clerks, "Two minds are better than one." (1) And it is the rare advocate who can think of everything necessary to win a case. (Indeed, I am still looking forward to meeting the lawyer who can win at the Supreme Court without consulting anyone else.) Talking through the case with a colleague, working collaboratively on the brief, and gauging an audience's reaction to different versions of the oral presentation can be invaluable.
As the first article in this section suggests, the advent of Stanford's Supreme Court Litigation Clinic has been a boon to advocates whose cases pose important issues but do not involve amounts sufficient to warrant the retention of high-priced appellate counsel. The Clinic offers those advocates pro bono help with briefwriting, exposes the enrolled students to Supreme Court practice, and creates argument opportunities for the instructors. By any measure, this yields a win for all involved. The clients get the benefit of excellent advocacy, the students get a valuable learning experience, and the instructors (each a lawyer with Supreme Court experience) get frequent chances to burnish their skills. Substantively, the Clinic has been highly successful at identifying cert-worthy cases and putting together successful petitions. Thus, although the Clinic presents a resource for only one type of client--non-governmental persons and entities for whom pro bono representation is appropriate--lawyers representing clients of this sort may find its expertise irreplaceable.
A good brief is an obvious prerequisite to a successful appearance in the Supreme Court. But the part of the advocacy experience that quite rightly inspires the most fear is the oral argument. The justices can and will ask the hardest questions, and they will expect succinct, direct, and well-crafted statements in reply--all in the first sentence of every response. The compression of time in a Supreme Court argument, along with the personalities on the present-day Court, add an element of urgency to the experience that lawyers are unlikely to encounter in any other appellate tribunal. (2)
The moot courts offered at Georgetown's Supreme Court Institute are in consequence a resource of broader applicability than is the assistance offered by the Stanford Clinic. As the second article in this section demonstrates, anyone can benefit from its help, and the Institute will provide a moot court to any Supreme Court advocate who is the first lawyer associated with a particular case to request one. …