Being there Four attorneys relate their experiences of appearing before the U.S. high court

By Roberta M. Gubbins

Legal News

The United States Supreme Court devoted three days to oral argument on the new health care legislation. Lawyers on both sides of the issue filed briefs, practiced their argument and tried to think of all the questions the justices could conceivably ask. But what is it really like to appear before the justices in the highest court of the land?

Four experienced lawyers, Valerie Newman, State Appellate Defender Office, B. Eric Restuccia, Deputy Solicitor General, Cooley Professors Ronald Bretz and William Wagner, gave their answers at Cooley Law School on March 23.

"I'm on a bit of a high," Newman, opening the discussion said. "On Wednesday morning (March 21) the decision came down and I won."

The decision she was referring to was Lafler v Cooper, which she argued before the court last fall. The court found for her client, holding that relief was warranted due to ineffective assistance of counsel during the plea bargaining stage of the proceedings.

"In the United States Supreme Court everything is in booklets which are color coded. The court is steeped in tradition. It (our case) started off with the State's Petition for Certiorari, which is white. Everything is in these teeny, tiny little booklets," she said referring to the stack of multi-colored booklets in front of her on the table.

Once the Court takes the case, she explained, everything starts rolling. She received the prosecutors brief (light blue) and she responded with "my nice little red brief.

"If you think it is a daunting experience to go up there and argue, try taking all of this," she said holding up the booklets, "and knowing everything that is in them and every single case that has ever been decided in every state court, appellate court and the Supreme Court."

"There are 80,000 petitions (for certiorari) filed each year and there are only 80 grants," said B. Eric Restuccia, Deputy Solicitor General. "And when a court takes a case, 75 percent of the time the petitioners prevails."

Turning to the procedures surrounding the arguments, he said, "There is something different about the United States Supreme Court because of the all the tradition. You meet with the Court Clerk and he gives you a description of what is going to happen, he talks about the quill pen on the tables, where you stand, how the gallery is situated and how people come in and out of the gallery. Sometimes you can be distracted by the ceremony surrounding the court and you forget that it is a working court."

He described being before the court on a matter where the lawyers wanted to argue their point but the Court had other ideas.

"It doesn't matter what you want to talk about--just answer questions," he said, "you may be able to talk for a minute and a half, then answer questions. So the preparation is just answering questions and knowing the range of questions, which will be adverse to your position, and how you are going to answer them."

Ron Bretz, Cooley Law School professor, asked what does the lawyer do when the justices are talking among themselves. When this happened to one of her collegues, Newman said that after two minutes of conversation, the Chief Justice said "Now would be a good time for you to say something."

"The etiquette is that if they are talking to each other, you are not allowed to say anything. It is a very delicate balance. And if you violate the etiquette you will get yelled at. I was reprimanded by Justice Breyer because I did not answer the Chief Justice's question with a yes or no answer."

She mentioned that Chief Justice Roberts is never referred to as Mr. Chief Justice Roberts, he is simply called Mr. Chief Justice. Even though the lawyers know the names of each justice, "it would be very easy to call someone by the wrong name," a major breach of etiquette.

Bretz commented that part of preparation is to "moot your case" or argue it before an experience panel of lawyers who have been before the court.

William Wagner, Cooley Law School professor, began by saying that "if you have a Supreme Court practice, you should know that the café in the court has the best cheesecake in the United States."

He discussed the filing of amicus curiae or friend of the court briefs. "It is a very different and sometimes very important aspect of Supreme Court Practice. The impact is great. An amicus is to bring to the attention of the court some matter that is not in the red brief. Your client should have an interest that will impacted by the court's decision."

How the court characterizes the issue, he explained, often tells you how they are going to resolve the case. The amicus brief must raise issues different than the parties, adds value to those issues and presents an argument that the parties didn't have time to address.

"Remember who your client is and does he have an interest in the matter," he stressed, "and, memorize the Rules of Procedure."

The event was sponsored by Cooley's student chapters of the American Civil Liberties Union (ACLU) and the American Constitution Society (ACS).

Published: Mon, Apr 16, 2012


  1. No comments
Sign in to post a comment »