futile arguments

exerpt from Futile Arguments:Lawrence v. Texas and the Supreme Court Bar, published in the Modern American. 


The current consensus in the literature and among Supreme Court litigators themselves is that hiring specialized appellate counsel is generally a good thing. Michelle Lore wrote an excellent article for The Minnesota Lawyer in 2007, detailing all the reasons a trial lawyer should hand off an appeal to an appellate specialist. Among other advantages, she points out the specialized skill set, familiarity with appellate judges, and the objectivity that new appellate counsel can bring to a case. She also notes the prestige that attaches to specialized counsel, recognizing that clients view appellate work as “a distinct service.”

These clients may be correct in their view. According to Kevin McGuire and Joseph Swanson, specialized appellate counsel achieve much higher rates of being granted certiorari (also
known as “cert,” or review on appeal) in the Supreme Court and possibly reach higher rates of winning cases. In his article, Repeat Players, Mr. McGuire examined the lawyers in all Supreme
Court cases between 1977 to 1982 to determine that “lawyers who litigate in the high court more frequently than their opponents will prevail substantially more often.” Kevin McGuire proposes that the more an attorney appears before the Court, the higher the likelihood of his success. Joseph Swanson takes a micro look at the certiorari process by examining three particular members of the Supreme Court bar in three particular cases, but arrives at a conclusion similar to Mr. McGuire’s: “One can only conclude that hiring experienced Supreme Court counsel to petition the Justices for review may improve one’s chances considerably.”

One consequence of the rise of the elite Supreme Court bar is that judges may expect something different, if not better, of the parties appearing before them than they have in the
past. According to Jennifer S. Carroll, appellate judges expect a different level of legal argumentation than trial judges. The “emotional pleas” considered the norm at the trial level, she says, would be “inappropriate at the appellate level.” In fact, she argues that “[a]pellate practice has evolved into a specialized area of the law, and justifiably so. The fundamentals of appellate advocacy—writing a simple persuasive brief, making an effective oral argument, and having a command of the appellate procedure—necessarily reflect effort, skill, and at the highest level, art.”

Even the Supreme Court agrees. The American Bar Association Journal interviewed Justice Antonin Scalia and Bryan A. Garner about their coauthored book Making Your Case: The Art of Persuading Judges. The book instructs appellate lawyers of at all levels on how best to write briefs, argue cases, and, ultimately, convince judges. When the Journal asked Justice Scalia his thoughts on the rise of the Supreme Court bar, the Justice said:

I think that there are a significantly larger number of lawyers who appear at least once a term and sometimes several times a term than when I first came on the court . . . . I think I can say that those who do it with great frequency and are paid a lot of money to do it because they are good at it are obviously going to be better—other things being equal—than a novice.

A litigator approaching her first argument in the Supreme Court may rightfully worry that this presumed level of competence creates an ethical duty to hire specialized appellate counsel.
Christine Macey compares the benefits of increased chances of being granted certiorari, more effective oral arguments, and the affordability of appellate specialists to the “novice lawyer’s”
obligations to educate her client and provide competent representation. Ms. Macey concludes that “although statistics show that experience matters at the High Court,” inexperienced attorneys may fulfill their ethical duties by comprehensively educating their clients and preparing adequately for trial. Moot courts, Supreme Court clinics, brief writing assistance, and online and print resources (including those coauthored by Justices themselves) are all resources attorneys may use to help them prepare.

Ms. Macey also discusses reasons that attorneys may prefer to not pass on their cases to appellate attorneys.

A lawyer may want to keep [a] case for legitimate reasons, such as client trust or superior knowledge of the facts. Alternatively, a lawyer may wish to keep [a] case for self-interested reasons. A Supreme Court argument is a once-in-a-lifetime opportunity for most attorneys. It could lead to television or newspaper coverage, as well as future business. Supreme Court advocacy is associated with prestige. . . . Legal fees may also motivate to keep the case to herself.

Some of these reasons may also be related to a lawyer’s connection with and passion for the particular cause implicated in the case. The lawyers involved in Lawrence v. Texas exemplify the way in which the rise of the Supreme Court bar can affect who argues which cases. To explore the rise of the Supreme Court bar, and specifically the role of Lawrence v. Texas
and impact litigation, in the lesbian, gay, bisexual, and transgender (LGBT) movement, I interviewed Paul Smith and Mitchell Katine and corresponded briefly with Suzanne Goldberg over email.