Tales from a SCOTUS Counsel Table Voyage
Whether you are petitioning for certiorari or opposing the writ, you may be lucky (or unlucky) enough to find yourself in the hallowed halls of the United States Supreme Court. I am blessed to have recently taken this journey as counsel of record in a case that I litigated (please see the blog of my law partner, Bruce D. Greenberg, Esq., on all the legal action: http://appellatelaw-nj.com/an-ldg-case-is-argued-in-the-united-states-supreme-court
). I would like to pass along some helpful hints to those that may find themselves on a similar passage for the first time, and point to some wonderful resources that may aid you in understanding how to navigate these legal waters.
A good starting point is a resource my team used to help us understand the SCOTUS process: Supreme Court Practice 10th Edition
. It is co-authored by an excellent travel companion during my recent journey, Edward A. Hartnett, who is the Richard J. Hughes Professor for Constitutional and Public Law and Service at Seton Hall University Law School. The resource provides practitioners with firm footing to understand the venture they are about to embark upon. It explains the process of how cases are reviewed and how certiorari is granted, and even provides some analysis on the current Court’s composition. It’s a must-have for first time practitioners.
The next resource that can educate you on this brave new world you will journey to is scotusblog.com
. Its founder, Thomas C. Goldstein, Esq., Goldstein & Russell, P.C., was my tour guide during my experience and presented the case before the Court.
Initially, you should evaluate your existing team and determine whether the Supreme Court briefing and the analysis can be conducted by them, or whether the aid of an outside resource is the more prudent practice. In my opinion, the attorney who handled the case from its inception is best suited to captain the case. He or she has the most knowledge of the historical, procedural and legal facets that carried the case thus far and should never relinquish a role in that process.
However, there are different schools of thought, and clients that may opt for the “turnover method,” seeking a specialized Supreme Court counsel to prepare and argue the case before the highest court in the land, with limited involvement from prior counsel. Supreme Court counsel is a wonderful luxury to employ like a hired guide through troubled, uncharted waters. While helpful to navigate the unknown twists and turns, they can be costly and may take over the steering of the ship.
As counsel of record, you should determine what needs and wants you and your client will have during this journey because it is your choice to dictate your level of involvement with your client’s blessing. Above all, seek out the best approach for your case and the best way to position your case. For example, sometimes taking on an issue addressed by the lower courts head-on is not creative enough since the Court may overturn its prior rulings despite stare decisis being in your favor. Or, the Court can interpret the law in a novel fashion after your case has been presented.
One of the important issues raised in SCOTUS practice is soliciting amici to support your position before SCOTUS. Yes, you heard me, YOU solicit and seek your sources and organizations that may be critical to advancing some positions that you will not have time or briefing space to put before the Court. Make sure that these amicus submissions will advance your arguments from a different angle and not simply restate your brief’s arguments.
As counsel of record, you will also have the opportunity to solicit the “Moby Dick” of amici, i.e., the Office of the Solicitor General. To land that “great white whale,” you had better do your homework on how to pitch them like that blue chip client you have been seeking for years. I provide you with two useful articles that I used in understanding that specific process: http://www.nationallawjournal.com/id=900005434802/Riding-the-Coattails-of-the-Solicitor-General?slreturn=20160102194341
Moot courts are essential. There are a number of law schools and organizations across the country that assist new practitioners to the Supreme Court. But access to them is very competitive. Make sure you get at them before your adversary does, in order to take advantage of an organization that moots regularly for cases argued before SCOTUS.
As to the art and skill of the oral argument – I blogged
about that this issue previously. After going through this magnificent travel to Washington, DC, I can only say that my belief in “let’s get back to moot court” has never been more true. The moot court process not only flushes out arguments, it flushes out the judicial political positions—the right, center and left—of the Court; it exposes the dangers of certain topics, cases and theories; and it also reminds you that you are currently doing everything that you wanted to do and imagined you could do when you embarked on that initial odyssey into the practice of law. Oyez, oyez, this Honorable Court is now in session!