SCOTUS Specialist or Subject Matter Specialist?:
A new article over at raises an interesting question: If you are a client with a Supreme Court case in a specialized area of law, is it better to hire a Supreme Court specialist or a subject-matter specialist to argue your case? Here's an excerpt:
Dabney [a patent law specialist] and some others argue that a Supreme Court specialist isn't quite the answer. "The trade-off is how well people know the Court versus how well they know the subject matter," says Stanford Law School professor Mark Lemley, one of 24 law professors who filed an amicus curiae brief on behalf of KSR. "In several high-profile cases over the last four years, very well-known oral advocates have blown the answers to really important questions," he added, though he declined to provide specifics.

The question of whether or not an IP lawyer should argue IP cases before the high court was a dead issue for decades. Then, in its last session, the Supreme Court granted certiorari to four IP cases, more than any year since 1965, when it heard seven. So far, the Supreme Court guys have come out on top: Only one of last year's cases was argued by a patent litigator, and he lost. Bingham McCutchen IP partner Robert Schroeder represented respondent Swift-Eckrich, Inc., in a patent suit against Unitherm Food Systems, Inc. Oklahoma City business litigator Burck Bailey won that one. The rest were argued by Supreme Court specialists.

Dabney claims to be the best of both worlds. Over the last 15 years he has made himself an expert on Supreme Court precedent in patent law dating back to the mid-nineteenth century. And as he says, with typical bombast: "It's hard for me to imagine there is someone who could be more effective than me."
  So which is better -- subject area specialist or Supreme Court specialist? In my view, the answer is that it depends. If the subject area specialist is truly a nationally-known expert in the field, then that may be helpful. That reputation can bring added credibility. On the other hand, it's possible to know too much about a subject area. For example, Dabney's knowledge of Supreme Court precedent in patent law "dating back to the mid-nineteenth century" may be counter-productive; the Justices won't know much about it and aren't bound by it, so their eyes will probably glaze over if he focuses on it too much. A generalist can make sure that the Justices don't miss the forest for the trees. Of course, the downside to a generalist is that he can miss the forest altogether.

  Perhaps the one clear rule in this area is this: If you're going to argue a Supreme Court case, do not boast to a reporter that "[i]t's hard for me to imagine there is someone who could be more effective than me." This kind of attitude only reflects poorly on the lawyer, and that can't help the client.

  Thanks to Howard for the link.
Tennessean (mail):
When does it matter? That is, given the intense amount of intellectual energy directed at every Supreme Court case, when is the oral argument important? Answering that question, it seems to me, requires a Supreme Court specialist (even if sometimes your Supreme Court specialist might recommend using a subject matter specialist).
9.21.2006 2:53am

I think it matters often enough that a client should think very carefully about the question of which attorney to chose.
9.21.2006 2:55am
Maybe it depends on how much the justices are likely to know anything about the area of the appeal or care about it.

While patent law is critically important to the economic health of the country, do justices really give a rat's ass about it? I suspect they do not, so having a SCt generalist talk to the people who don't want to be more than generalists, if that, is likely a better course. A well coached generalist of course.

On the other hand, in something the justices might really get into, say some tax thing, using the tax specialist with coaching from the SCT generalist, might be the better course.

Then there is the third case, illustrated by the SCt hearings in BushvGore. Gore chose Tribe for the first whack, which ended up with the SCt vacating and remanding SCOFLA and telling it to try writing a coherent opinion. Then Gore chose Boies, who presumably knew the details of the case, for The Ultimate All The Marbles Hearing.

Did he choose well? Was knowing the details of the case more important than having an experienced SCt generalist?
9.21.2006 3:24am
Tennessean (mail):
Prof. Kerr:

My point wasn't that the choice was meaningless or irrelevant, but that it cannot be answered usefully without first addressing why oral argument matters (and for, ostensibly, you'd need a court specialist).

I.e., what is to be gained (or lost) in oral argument given the extensive briefing provided to the Court as well as the intellectual energy the Court itself will direct at the issues? In how many cases is oral argument a but-for cause of the outcome?

I'm not saying oral argument isn't important -- I'm saying that I don't think you can understand the importance of oral argument without being very, very familiar with the Court and that you can't make an informed decision about your orator without knowing what the practical aims are.
9.21.2006 3:58am
In a perfect world (I know, I know!) lawyers would argue the law and the Court would exert itself to understand them. This business of 'Supreme Court specialists' seems like self-indulgence on the Court's part and pandering on the lawyers'.
9.21.2006 8:13am
more effective than I.
9.21.2006 8:47am
Revonna LaShatze:
"Of course, the downside to a generalist is that he can miss the forest altogether.

Excellent line, OK.
Reminds me of Newt Gingrich.
9.21.2006 8:58am
When I read about this debate, it often reminds me about the tension in ancient Greece between the Sophists (experts in rhetoric) and the philosophers. When deciding whether to hire either a Sophist or a philosopher as an advocate, remember this: Socrates couldn't defend his own life in court.
9.21.2006 9:33am
The best choice is someone with less ego than either Goldstein or Dabney...

In all seriousness, the best appellate patent lawyers, in my limited experience, for the most part, haven't been patent specialists. For the KSR case, a good Supreme Court lawyer who can learn the subject matter with enough sophistication is a better choice, IMHO, than a patent specialist who would like to argue in the Supreme Court.

This isn't perfectly on point, but in patent cases the Supreme Court's decision whether to grant cert is heavily influenced by the SG's recommendation (see here), and not, for example, by the input of the AIPLA, the CAFC Bar Association, or patent law professors. The Supreme Court is a generalist court, and a generalist litigator who can absorb the subject matter in sufficient depth is probably the best lawyer for the job.
9.21.2006 9:48am
AppSocRes (mail):
As an inventor manque (one patent, issued 2002) it frightens me that extremely important but highly technical issues regarding intellectual property law are probably going to be argued and heard by people who may not have a full understanding of very complicated issues. More than likely the final results will favor large corporations over independent inventors and entrepeneurs. I wish there were some way the Supremes could hand this one over to an expert panel. By the way, bring the issue of intellectual property law up with private, i.e., not working for large corporation, inventors and there would be just about universal agreement that this is one more area where the Clinton administration fumbled badly.
9.21.2006 10:18am
Anderson (mail) (www):
do not boast to a reporter that "[i]t's hard for me to imagine there is someone who could be more effective than me."

Amen to that. I wouldn't want to be in the same room with the guy, much less have him representing me. It's easy to imagine him getting mad at the justices for not "understanding" (= "embracing") his opinion, and lecturing them on their ignorance.
9.21.2006 10:24am
Michael Dimino (mail) (www):
The William and Mary Supreme Court preview had an interesting exchange about this. The majority opinion seemed to be that experienced Supreme Court advocates were valuable, not just for the argument itself, but for the cert. petition in particular. In part this was because the arguments could be written in such a way as to attract attention, but also because the name of a well known advocate on the brief was itself a cue to the clerks that the case is a potential grant.
Randy Barnett's point was slightly different. He argued that while most times an experienced Supreme Court advocate is the best choice, occasionally litigants need an outsider who will make an unconventional argument. The experienced Supreme Court advocate, it was suggested, is hesitant to risk his reputation before the court as a respected repeat player by offering a non-traditional argument, even if it has a chance of success. This strikes me as quite an indictment of those advocates, and I do not know the extent to which it represents actual practice, but it is something to think about.
9.21.2006 10:29am
JPS3L (mail):
Are the two mutually exclusive? Irrespective of which attorney would be lead counsel or present the oral argument, it strikes me that you would want both involved in the brief writing and oral argument preperation phase of the process. In terms of who actually presents the oral argument, it should be the better of the two public speakers, which would likely be the attorney who argues before the high court regularly, but I suppose could be either. I imagine that any corporation involved in IP development would be able to hire multiple attorney to represent them, so the question only becomes relevent to someone who can't afford both. Personally, I'd take out the second mortage.
9.21.2006 10:30am
Bork Fan:
It's quite possible to be both, and, in fact, patent law provides the ultimate example of such versatility: Robert Bork. Not only is Bork one of the most gifted advocates ever to argue any type of case before the Court, he's also a patent law (and antitrust) expert.

This Dabney fellow must have a severely limited imagination if it couldn't come up with that one.
9.21.2006 10:41am
Eh Nonymous (mail) (www):
One word: Lessig.

Being a great advocate for your cause, in the narrow but deep subject matter you are a master of, is no guarantee you will be persuasive in a different environment.

Sometimes a great specialist will be able to master the intricate nuances - but only if properly brought along by the SM specialist.

Also: Know the facts! Know the law! Know the tribunal!

Also: duh.
9.21.2006 10:44am
Alan Gura:
The notion of a Supreme Court specialist is a rather recent marketing creation. There is no reason why a skilled appellate practitioner cannot do well in the Supreme Court.

Indeed, any good attorney with a heavy law and motion practice should be able to succeed in the Supreme Court. Obviously more care and time will be invested in a Supreme Court brief than, say, a summary judgment brief, but the mechanisms of good research, writing and advocacy are the same.

If one were more cynical about the Supreme Court, then a "specialist" in the sense of one who is socially familiar to the justices would be a better choice. However, at the risk of sounding naive, the Supreme Court chooses its own docket and presumably decides cases on their merits. A case may turn on the quality of the attorneys' work product, but not on the identity of the attorneys.
9.21.2006 10:45am
I'm an IP attorney and I've written or helped write several amicus briefs in recent Supreme Court patent flurry.

If it's an IP case, hire Seth Waxman, he's probably the Supreme Court specialist with the best knowledge of IP law. Failing that, get both kinds of specialists to write the brief. The Supreme Court specialist should argue it and be primary author. There's an art to writing a good Supreme Court brief that's different from a trial brief or a brief to the Court of Appeals. But, at least with patent law, there are often sublties and history that generalists rarely grasp.

Unitherm wasn't really an IP case, by the way, it was a civil procedure issue in the context of a patent case.

I agree that on the petition stage the input of a Supreme Court specialist is critical. I've seen too many petitions terrible petitions that virtually foreclosed review on cases that should have been review.
9.21.2006 11:32am
Chris 24601 (mail):
Of course, with same-day transcripts, whichever guy who didn't do the oral argument can go back and post what his answers would've been to the questions.
9.21.2006 11:43am
Tax Lawyer:
JPS3L hit the nail on the head. It's a false choice. You need both crafting the brief. It'd almost be malpractice per se not to have both skill sets brought to bear on the brief writing.

The only choice is who presents. There, I think the criterion is easy: who's the better oral advocate? I would suspect, as a general rule, it's the one who's more practiced at it, i.e., the appellate specialist. If you're a good appellate advocate, you're a quick study: you pride yourself on your ability to get up to speed on virtually any subject matter -- and not just in a slick way, but up-to-speeed enough that you can converse intelligently with the specialists in the field, and teach it to the Court. More difficult for some subject matter than others, but that's why they pay you the big bucks.
9.21.2006 12:34pm
JPS3L (mail):
I think that the notion of a Supreme Court specialist is more than just a marketing scam. Aside from just knowing the law, practice before the Supreme Court requires you to develop an argument that will bring five justices together. This often requires an advocate to understand how all nine jutices individually adjudicate a specific issue so that you can bring those divergent approaches together in a winning argument. Additionally, practice before the Supreme Court requires an advocate to anticipate the types of questions the justices will ask and, at times, to be able to tranistion one justice's question into an invitation for a different justice to help support your argument -- perhaps even offering an argument you hadn't considered. While I agree that any skilled practioner could do this, for the amount of time it would take them to get up to speed on the finer distinctions of each justice's approach to an issue, you might as well just hire the specialist. Finally, I would also note that the arguments you make before SCOTUS are sui generis. Unlike lower courts, you are not as concerned with precedent because the Court is always free to overturn their own cases (irrespective of stare decisis). Thus, a SCOTUS advocate does not simply need to do the best job analogizing their case to a favorable past precedent, but needs to explain to he court why that result is the better one as a matter of public policy. In this respect, advocates need to be able to address disputes of text, constitutional history, legislative purpose, and policy consequences (and to some extent precedent) in a way that most advocates before lower courts do not. (Obviously, you address legislative intent and judicial consequences in the lower courts as well, but not as an avenue to potentially creating new law or asking the court to adopt a fresh approach to an area of law. Indeed, Lopez created an entirely new approach to interstate commerce without overturning one case by adopting arguments that would not have been advancded in the lower courts.) Having a fluid understanding of these aspects of the development of a law is one more reason to hire a SCOTUS specialist.
9.21.2006 1:34pm
Alan Gura:
Bringing five SCOTUS justices together is not much different than bringing two of three panelists together, or five (or four, as the case may be) state supreme court justices together. Self-described "Supreme Court specialists" are not privy to the inner psychological machinations of the Justices in any way that wouldn't be equally transparent to others. Plenty of such "specialists" have failed to get that fifth vote out of O'Connor or Kennedy, and it was not for lack of special insight or lack of talent.

For better or worse, stare decisis is a powerful doctrine. I very much doubt that a self-described "specialist" somehow has a better ability to get SCOTUS to throw well-establised precedent overboard. It just doesn't happen that often. It is difficult to imagine, at conference, the Chief saying, "well, ordinarily we'd just apply this string of precedent, but we should redo this body of law because Mr. Specialist said so."

There is something about JPS3L's argument that suggests the Justices are more or less malleable putty that can be crafted with sufficiently expert hands. Certainly a high degree of talent is desirable, if not required, for Supreme Court practice; and most, if not all self-described "specialists" are more than sufficiently talented. But in the end, it is a marketing gimmick. A clever and effective marketing gimmick, but a gimmick nonetheless. Supreme Court practice requires talented lawyers, not high priests.
9.21.2006 3:08pm
Chris 24601 (mail):
Lopez affirmed the CA5, though; Judge Garwood was able to come up with similar arguments from his non-SCOTUS position too. If the Supreme Court hasn't spoken to an issue, very similar policy/text/"new law" issues confront lower courts too, albeit much less frequently.
9.21.2006 3:11pm
MikeC&F (mail):
I suspect that if you put 100 former Supreme Court law clerks into the same room, at least 90% of them would agree that Supreme Court advocacy is quite different from other appellate advocacy.

Now... I'm not overly deferential to authority... But on these matters I'm particulary interested in the opinions of people who worked next to Supreme Court justices. Everyone else is just guessing!
9.21.2006 4:39pm
elChato (mail):
Any sharp lawyer could do a good job. But the same is true of bankruptcy court, or a trial in state court, or a motion before a tough federal district judge, or a proceeding before the state's disciplinary committee defendant a lawyer accused of misconduct.

The reason you would go with a specialist in any of those situations is their "court-specific human capital." They've invested lots of time learning the court's customs as well as the judges' judicial (and sometimes personal) quirks. If you think that makes no difference to how your case comes out, you are kidding yourself!

However, if I ever have a case that goes there, you bet I am going to argue it myself, I don't care how much extra work I have to do to prepare.
9.21.2006 5:33pm
Mike is correct that everyone is guessing... as is he when he says that 90% of Supreme Court clerks would agree. If I remember correctly, 5 or 6 of the VC bloggers are former Supreme Court clerks, and Randy's argued there. I wonder what they think.
9.22.2006 11:04am
anonVCfan: addition to what's already in the post, of course.
9.22.2006 11:04am