Unsophisticated Clients and the Supreme Court Bar:
I'm delighted that Richard Lazarus has joined us to discuss his fascinating article on Supreme Court advocacy and the Supreme Court bar.

  After reading the article, I found myself wondering if the uneven distribution of top advocates is more a result of unsophisticated clients or the gap between economic "haves" and "have-nots." I tend to think it's more the former than the latter. There are many Supreme Court lawyers eager to help out for free on viable cases (or better yet, granted cases), so I think the role of resources is actually smaller at the Supreme Court than elsewhere. But the most sophisticated clients know that Supreme Court advocacy is a weird art, and that you often get better results when you have a trained artist helping you out. This isn't always true, obviously, and to be clear I don't think it's is a good thing. But for better or worse it's often the case. So the most sophisticated clients will pick their lawyers carefully and will aim for experienced counsel with a deep understanding of the Supreme Court. Unsophisticated clients are less likely to realize this, and their interests sometimes suffer as a result.

  I would guess that's the major problem in criminal defense cases. Lazarus states at the top of page 95 that criminal defense lawyers sometimes decline assistance from Supreme Court experts, preferring to "go it alone," and that this can lead to a major gap in advocacy quality between the government and the defense. But the underlying problem is that the clients will tend not to know any better. A young and uneducated criminal defendant serving 30-to-life in a maximum security prison isn't likely to be a specialist in appellate practice. He isn't likely to know that he should ask his trial lawyer to step aside and find top-notch appellate advocates out there eager to represent him for free.

  Of course, making more clients more aware of the effectiveness of different types of lawyers is no easy task. Maybe it's an impossible one. But perhaps the attention to Professor Lazarus's article is itself a start.

Related Posts (on one page):

  1. Unsophisticated Clients and the Supreme Court Bar:
  2. Advocacy Matters
George Weiss (mail):
dont you think that at the supreme court level...the jsutices are much more likely to realy on the reaserch done by their clerks and their own views of the case..and that the appealte breifs and oral arguments are only going to help if theres some case or argument that evryone else missed?

that the suprme court level most arguments are going be be hashed and rehashed 1000 times before going ot the suprem court-what chance is there that there is some really smart lawyer that is going to bring up a point the justices or their overachiving law clerks (no offense orin) are not going to see when revewingthe merits themselvs?
10.29.2007 4:25pm
Unsophisticated clients or unsophisticated/ambitious criminal defense bar? I doubt that the clients hear a balanced view of the difference that experienced counsel can make at the Supreme Court. More likely, experienced counsel talk to the client's lawyer, who wrongly thinks that if he got the case this far, he should take it all the way. If the client ever hears about the multiple offers of free help, he probably hears that some hotshot Washington lawyers want to take this case away, but you're better off not going with someone who doesn't know you and the history of your case.
10.29.2007 4:30pm
Sean M:
I agree, Orin. But I wonder if the "appellate specialist" or "Supreme Court specialist" is such a good thing. After all, everyone has to make his first Supreme Court argument sometime.

It's like the dearth of "trial lawyers." Clients want lawyers who have tried a case before. But a lawyer can't try a case until a client lets him try his first case.

So what do we do?
10.29.2007 4:30pm
Dilan Esper (mail) (www):
I have a very, very different view of this. Supreme Court specialists are like a club, they are tremendously self-important, and they get their business by approaching clients who already have representation and convincing them to dump their lawyers who have been with them all the way and go with a "specialist" instead.

There's a great ego trip involved in appearing before the US Supreme Court. The truth is, however, that oral argument doesn't matter-- as Rehnquist observed, it only changes the results of less than 5 percent of the cases. So if these Supreme Court specialists were really concerned about their clients, they would write the briefs and then let the client's regular lawyer, who probably knows the record better to answer questions anyway and who would like a chance to appear before the Supreme Court, to argue the case.

This is all about getting the glory, not representing clients.
10.29.2007 4:46pm
I have not clerked on the Supreme Court, but I am inclined to agree with the thrust of what George Weiss said. I have seen the Supreme Court rule in favor of clients who had terrible, terrible briefing on their side. (One example would be the recent Parents Involved case, Louisville's white parents were represented by a guy who spent most of his brief quoting Martin Luther King Jr, but that doesn't really count since the SG was also on their side.)

In any event, I guess my point is that the quality of briefing/lawyering seems like it would be much greater at the Court of Appeals or district court level, and incredibly important at the State Supreme Court or Court of Appeals levels. There the variation seems significant. True there is some variation with government briefs there, but where would you expect the difference in lawyering to be greater, when Texas is a party against a criminal defendant at the Supreme Court level, or the Court of Criminal Appeals?

And, obviously implicit in what I just said, is the difference in resources. The Supreme Court has 9 justices who sit on every case and do less than 100 cases a year (though they are each fairly complicated, but on the other hand they are often so purely legal they often do not have extensive factual records). The Federal Courts of Appeals do thousands of cases a year, and again I reference he State Supreme Court problem. The U.S. Supreme Court has by all accounts exception current, former, and future lawyers either fresh from the top schools and top Appellate clerkships or, increasingly, individuals with those credentials who have spent time in some kind of practice, whether with the SG or a law firm. State Supreme Court Justices have a very different pool to select clerks from, with a high variation (compare say Kentucky and New Jersey).

Sorry for the rambling post, but my point is simple:

The effect Orin has described is way more significant at every single other level of the legal system than it is at the Supreme Court level. I could be wrong, but I am tempted to believe that the gap in briefing is often bridged with internal memos, drafts of dissenting opinions, and the general work of the clerks for each Justice. Please correct me if I'm wrong, however.

On the other hand, if you are a Judge on the Court of Appeals for Kentucky, and one of the briefs is terrible, who is going to win? Your clerks are stretched thin, you are exceedingly busy (might even be running for reelection), so who will do all the research and marshaling the arguments?
10.29.2007 5:08pm
alkali (mail):
Does anyone have any sense of whether there is a meaningful difference between (A) a Supreme Court specialist and (B) a seasoned litigator who has been before state and federal appeals courts on numerous occasions? (I accept that either is probably better than having an attorney who has not appeared before appeals courts before argue your case.)
10.29.2007 5:11pm
One Man's View:
Candidly, I think we are all looking at this from the wrong perspective -- i.e. that of the lawyer -- and we are discussing relatively capabilities, status, selfishness etc. All of those have, no doubt, got some validity, as does Oren's point that criminal defendants don't have any real options or opinions.

But the more powerful factor here is the risk adverse nature of businesses. If you are a business in litigation your first instinct is to settle. If, for whatever reason you cannot settle the case and you have to fight then the =only= self-protecting CYA course available is to hire one of the so called "best" by whatever public measure is available. If you do that and lose, well ... at least you did everythign you can. But there's no help for the general counsel who decides to stick with trial counsel and not hire Ted Olsen/Walter Dellinger and the goes on to lose the case.
10.29.2007 5:26pm
not a dog (mail):
I remember reading the oral argument transcript in the Caballes case, while in law school. This was the case in which an officer walked a drug-sniffing dog around a car at a routine traffic stop, and the dog detected marijuana. The issue was whether this was an unlawful search.
The lawyer for the government was excellent. The criminal defense lawyer (I'm not sure if he was a public defender) was absolutely terrible. He kept making silly dog jokes and puns. The justices almost seemed to be trying to help him along. It was pathetic.
The government won the case. I think a stronger advocate might have convinced the Court otherwise.
10.29.2007 5:31pm
Dilan Esper: Your "very, very different view" seems to be motivated by fairness to trial/appellate counsel, not by the best result for the client. You're right, representing a client before the Supreme Court is an ego trip, and many lawyers' egos prevent them from letting go when they should. The brief posted by Eugene a few days ago is evidence - there is no doubt that the Justices will think less of the arguments when they are impossible to find in bad writing and obscured by typos. Those lawyers undoubtedly had multiple offers of assistance which they must have declined.

Alkali: Ask yourself who would be better at getting a majority of the Court: someone who has read everything they have written for a number of years or someone who has read the occasional case that was relevant to whatever subject happened to come up at the time?

For those who think that the quality of the Justices and the clerks should be sufficient to get to the right result, you are displaying a touching naivtee regarding the Court. They try to get the best result, but the cases they take are hard and could come out either way. Indeed, most cases get to the court because smart appellate judges have come to opposite conclusions on the same question. Most often in the briefing, but also in the argument, the lawyer's job is to advocate for the client's position -- to persuade the Justices that it is the correct position.

If the case could have two solutions and one side is elegantly presented and persuasive while the other is ham-handed, typo-ridden and dense, who do you think will win?
10.29.2007 5:33pm
Dilan Esper,

The main question isn't who argues the case, it's who writes the brief. You're focusing on the "glory" of oral argument, and the real issue here is the grunt work of briefwriting.
10.29.2007 6:02pm
George Weiss (mail):

If the case could have two solutions and one side is elegantly presented and persuasive while the other is ham-handed, typo-ridden and dense, who do you think will win?

the side that has the policy result the justices like..or has the constitutional/statutory interpretation doctrine

if has a policy natural answer (not to be confused with policy neutral argument)-then its probably not in the supreme court
10.29.2007 6:23pm
George Weiss (mail):
sorry thats..has the constitutional statutory doctrine they like (strict construction etc..)
10.29.2007 6:24pm
visitor from Texas (mail) (www):

A young and uneducated criminal defendant serving 30-to-life in a maximum security prison isn't likely to be a specialist in appellate practice. He isn't likely to know that he should ask his trial lawyer to step aside and find top-notch appellate advocates out there eager to represent him for free.

For Free.

Obviously a client should be informed of that.
10.29.2007 6:25pm
Per Son:
The Supreme Court doesn't belong to just the elite cadre. Carter Phillips, Starr, Goldstein, et al. do not own the role. Back when the voucher case was before the court, Clint Bolick threw a hissy fit, because of who Ohio chose to argue.

Clint stated: "We cannot afford to leave anything to chance, and we can be assured that our opposition won't be having a rookie attorney arguing against the program."

Betty Montgomery, the state AG, responded in a lovely manner: "If he wants to argue this case, then he should run and become the attorney general of the state of Ohio. It is the state's case."
10.29.2007 6:36pm
Per Son,

But isn't the most important interest the client? I'm not sure, but you seem to be suggesting that it's okay to think of Supreme Court arguments as a sort of bonus of elected office. If I'm a citizen of the state of Ohio, I would rather have a better chance of winning the case than know that my politicians are enjoying a moment of glory over in Washington DC.
10.29.2007 6:42pm
Per Son:

Not at all. I feel that Clint Bolick injected himself and insulted an extremely capable practitioner (who won the case!!). Originally, Jeffrey Sutton argued the case at the 6th Circuit, but he was nominated for judgeship, and presumably Montgomery wanted someone who could fill Sutton's shoes (very large shoes). She did not just choose some lawyer that gave her campaign $$, but chose someone who knew the case inside and out, and was a star lawyer in her own right.

I only laugh at the end result though, because I wished Ms. French was less capable (I am against vouchers)!
10.29.2007 6:48pm
George: I guess I'm somewhere in the center between those who think that the quality of amici, clerks, and Jutices will inevitably reach the right result regardless of advocacy and those (like you, apparently) who think that the Justices' policy preferences (or method of interpretation) will prevail regardless of what is argued.

Of course, there are often (for instance) competing plain meaning arguments on both sides and competing policy considerations that will appeal to a single Justice. Those are the strategic considerations that a specialist will help you find and exploit. Sometimes a novice may win regardless of poor advocacy because the cases below were so wrong; sometimes the best advocate will lose no matter how good his or her arguments. Maybe a specialist will only make the difference between an 8-1 loss and a 7-2 loss. Or maybe they won't make any difference at all. Even so, prisoners or even other parties who would be unable to pay a big firm's full rates nevertheless deserve (and can get for nothing or next to it) the best representation that's there to be had, because sometimes it makes a difference between a 5-4 loss and a 5-4 win. The more cases are decided 5-4, the more Supreme Court litigants should take advantage of the resources offered to them.
10.29.2007 6:49pm

Just so I understand, you agree with Bolick's concerns generally, but you just think that he was wrong in that one case? That certainly may be true.
10.29.2007 6:51pm
George Weiss (mail):
hypothetical to demonstrate my side of the argument:

your a one man operation in private practice in DC

your client has going to be guilty (of a state crime) only if a search/seizure is uphled and will definitly beguilty if it does.

the search/seizure issue is one that has been the subject of a circuit split between 5 circuits on one side and 3 on another..suprme court has yet to deal with the issue

your state supreme court has never decided the issue before as a matter of law for the state to follow while awaiting guidence from the supreme court

the prosecutor offers you a plea deal.

you know that your case has a reasonable chance of ending up in the supreme court...but you also know that youll never get to argue it because somebody who specializes in supreme court advocacy will probably take it from you.

are you not going to be more likely to tell the client to accept the deal..even if your heart tells you you could win in the supreme court (your in a hypothetical world where the supreme court has a liberal majority)

if your answer is yes..and you also support giving up cases to these lawyers..does this type of thing affect your answer to the latter question?
10.29.2007 6:56pm
George Weiss (mail):
cvme: true that only a supreme court expert can really play to the biases of a particular justice the best way...and the clerks wont do it for you there b/c (if im right) the clerks of one justice dont get to talk to the other justices..and if those 4 clerks of the improtant justice dont want to try to influance or just miss that how their justice's bias could mark the case..then they wont brign it before the justice.
good point

also i definitely agree with the people who point out that these big supreme court firms offer their services for free often and clients have a right to knwo that of course
10.29.2007 7:03pm
Per Son:

We are probably on the same page, just the Ohio in me gets fired up when this issue is discussed. I believe the client's interests govern. Often, when cert is granted, the litigators come a'knocking, and I believe the counsel must tell the client about these offers, and have a fair discussion. Maybe the client choses the DC guy, or maybe the client goes with the one who has worked the case for 5-10 years.

The Ohio case just highlights the fact that some of those in DC (I live and work in DC myself) feel they know better than even the sophisticated clients (yes, Ohio is a sophisticated client).

Another issue worth some discussion are supreme court counsel who troll for cases, such as digging for circuit splits and the like. Does that promote justice or just line the pocket books regardless of the outcome.
10.29.2007 7:06pm
Per Son,

Ah, got it -- yes, I think we're on the same page about this.
10.29.2007 7:12pm
Drew (mail):
My experience partly belies the have/have-not gap as a reason for success at the SCOTUS. As an associate approximately 15 years ago, I had a case where my opponent successfully sought cert review. I found out about that cert was granted when I was contacted by two Supreme Court "botique" appellate firms in D.C. within 24 hours of the writ issuing. Both offered to write my client's brief and argue the case at no charge other than printing costs. My firm would remain "co-counsel" but would not have any signifcant role.

I was dubious and asked about the offer. One of the callers did not deign to answer my questions. The other said that his firm was willing to do work for free on a few cases that they thought were winners in order to ensure a certain "presence" at the SCOTUS each term. Given that I received two such calls and the competition for such work has only gotten stiffer, I suspect that some parties can get high quality advocacy at virtually no cost.

By the way, the client elected to proceed with my firm, I wrote the brief,and a partner argued the case. We won. However, I wonder if we had lost if all of us would have rued the decision to turn down both firms.
10.29.2007 7:19pm
A note on businesses/corporations who hire Dillinger/Phillips/Starr etc:

It's the same principle as when they hire Cravath, Wachtell, etc for some typical business/litigation issue. The decision on what lawyer to hire is made by some executive (CEO, probably GC who is some kind of VP). It's not so much that you expect them to win or do the deal better, but instead, if the company loses you can always say "Hey Shareholders/Board of Directors, don't look at me, I hired Carter Phillips! I did everything I could possibly have done! Please don't fire me."

If you hired respected but obscure lawyer/law firm Y, this argument might not fly. Thus, the "Supreme Court bar" becomes a kind of prestige brand in that sense.
10.29.2007 7:21pm
Does anyone have a link (or other identifying information) for the brief CVMe mentioned that Eugene posted a few days ago? Thanks.
10.29.2007 7:21pm
Dilan Esper (mail) (www):
The main question isn't who argues the case, it's who writes the brief. You're focusing on the "glory" of oral argument, and the real issue here is the grunt work of briefwriting.

Professor Kerr:

Reread my post. I don't have any problem with people associating in Supreme Court practitioners to help write the briefs. I do have a problem with the clubby nature of the Supreme Court bar glomming on to oral arguments.

In other words, can you hire Laurence Tribe or Carter Phillips to be on the brief WITHOUT orally arguing the case? I have my doubts.
10.29.2007 7:39pm
George Weiss: I'm sorry to fight your hypothetical, but before you even get to trial, you really have no idea whether "your case has a reasonable chance of ending up in the supreme court." The cases with the best chance come up repeatedly and the likelihood that the Court won't take the issue up before you get all the way through the state court system are slim, particularly where you have a great 5-3 circuit split.

The answer to your question should have nothing to do with the lawyer's ego. I would move to suppress the evidence before trial. If I lost, I would point out the strength of the case and uncertainty of the law to the prosecutor and enter the plea, reserving the right to appeal the seizure issue.
10.29.2007 7:43pm
George Weiss (mail):
ok its true that you are unliekyl to know whehter your particluar case would get there..even if you knwo the issue will eventually go to the scotus

but dont most standrd plea deals require you to waive appeal except for inability to understand appeal or lack of adaquite counsal?
10.29.2007 7:45pm
George Weiss (mail):
sorry thats pleas generally require wavie of appeal accept lcak of understanding of plea or lack of adaquite counsal
10.29.2007 7:47pm

I don't know if Tribe or Phillips will work on cases they do not argue. I would assume they do, but I do not know. In any case, the article is not about oral argument, and it's the article that we were discussing.
10.29.2007 7:50pm
alkali (mail):
CVMe: Clearly we can generate reasons why it would be desirable to have a super-special SCt practitioner handling a case. The question is whether those reasons actually have any weight. Knowing that Justice Scalia dislikes artichokes(*) is something a lawyer from Atlanta or Boston or Chicago or Detroit might not know but it ultimately matters very little.

(* Made-up fact. My apologies to Justice Scalia and the artichoke industry.)
10.29.2007 8:33pm
Mark Seecof:
Of course Supreme Court specialists would love to help out with a granted case. That's the easy, fun part!

Given that the Supreme Court takes very few cases (in proportion to those offered), nearly all of the work and risk is in the cert. petition!

10.29.2007 8:36pm
allwrits (mail):

I have been involved in a small number of indigent defense cases on cert. The problem is not "unsophisticated/ambitious criminal defense bar," but allocation of resources. If a public defender has 15 appeals in which s/he knows that 1/3rd might get reversal or reduced sentence, or they can give one of those 15 a one in a hundred (or more like on in two hundred) chance of cert, where should they allocate their resources.

Being a public defender is unlike private practice in that client's compete for resources, even if unknowingly, not by the fee they bring to the table but the level of need and chance of success. It would be wrong, if not immoral, to deny a client a 1 in 3 chance of something positive in their case by giving another client a 1/2 of 1% chance of something favorable.
10.29.2007 8:57pm
George Weiss: Honestly I am not a trial level criminal practitioner, but I have seen numerous 4th Amendment cases at the appellate level where there was a plea entered subject to the right to appeal an adverse motion to suppress. A plea negotiation is like anything other negotiation, how it goes depends on the relative bargaining position of the parties. When there is a circuit split on a question of unsettled law (in the forum) that would decide the case one way or the other, the defendant would have a pretty compelling case for not waiving that issue on appeal. After all, the worst that could happen if he went to trial was that he would lose and then he would still have the right to appeal on the evidentiary issue. Pleading saves both sides' resources.

Alkali: Here's a made up fact that is similar to the kinds of things a supreme court practitioner might know: Let's say you have a criminal case that depends on statutory interpretation. You have several canons of construction that you can make good but not perfect arguments with and you think Justice Scalia and Thomas would be generally adverse to you. Wouldn't it be useful to know that one or the other of them had applied the particular canon to similar statutory language in another case last term? Now if the case were a majority opinion in a similar criminal case it would be easy for most practitioners to find that, but what if it were a concurring opinion in an ERISA case? Or a Scalia dissent in a first amendment case? Lexis searches probably won't make those connections, and most lawyers aren't familiar enough with the Justices to make those connections. Again, maybe that doesn't win the case, but it could.

Allwrits &Marc Secoff: At, they regularly list "petitions to watch" at the Supreme Court's conferences. Those are petitions that Akin Gump and Goldstein think have the best chance of being granted. In almost every list, there are a handful of obviously pro bono or reduced fee petitions by leading Supreme Court litigators. The problem isn't that these lawyers aren't seeking out cases at the cert. stage. I'm sure they would welcome inquiries from lawyers who need help on a cert. petition that has a decent chance of being granted.
10.30.2007 12:35am
George Weiss (mail):

well yes-the prosecutor is giving up the right to impose a big sentence...the defendant gives up the right to litigate the 4th issue

if the defendat doesnt give this up..than what does he have to offer

im not sure but i bet the defendant waives pretty much evrything almost all the time when he often do you see criminal appalete decisons about cases where the defendat took a deal?
10.30.2007 12:42am
George Weiss (mail):
also remeber the prosecutor is the master of the deal..suppose he takes says the offer is only good if you dont even file a motion to supress...

i thus figure the lawyers ego as to whehter and how far he himself will be litigating the issue is important...and if at some point the big boys will take it away he wont be intrested.

i dont see a lot of humble and non self absobed lawyers running around
10.30.2007 12:45am
Sean M:
I'm curious, Professor Kerr:

If you think all clients should hire experienced Supreme Court counsel, how does someone become experienced Supreme Court counsel?

After all, there's no way to avoid having a first argument in front of the justices.

What seems most odd, really, is that the only client who "rationally" trusts untried counsel is the United States. The SG's office is the closest thing there is to an entry level job in Supreme Court advocacy.

I'm not denying the general point, which is that specialists can do a good job. I'm just wondering how we develop specialists when the system people are proposing by its nature keeps people out of the specialty.
10.30.2007 12:53am

a result of unsophisticated clients or the gap between economic "haves" and "have-nots." I tend to think it's more the former than the latter.

That would explain why Gore chose Boies instead of Tribe for the "winner talk all" oral argument.
10.30.2007 1:06am
Troy Winthrop Snodgrass, IV:
Unsophisticated clients are the ones who go for the mediocre and overpriced "brand name" lawyers because they don't know any better.

These "supreme court specialists" have figured out that acting the part of the high-and-mighty expert tends to generate repeat business and be re-enforcing.
10.30.2007 1:26am
unwelcome guest:
If it's the quality of briefing that's the issue, the name at the top is relevant only to the extent that the name sets the style of the brief. The substance is being written by smart former appeals clerks in most instances. Where the name at the top has a real impact is in negotiations with the SG's office about the office's involvement/non-involvement.

That's not saying that I am convinced that oral argument has no impact. I am uncertain. It seems to be a reasonable position to prefer supreme court advocates to have been at least involved in a number of merits briefs, if not prior oral arguments. But I don't think that the SG's office (and alumni) should hold a monopoly. Nor do I think that it's necessarily in the client's best interest to give up the case mainly because (coming back to briefing) you would have no idea who will be doing the briefing and whether they actually believe in your position (I think that does matter, but how could I test it?). The test should be whether you can meet the high standard of briefing at the top appellate shops.
10.30.2007 1:29am
Your post implies that you believe that being a "sophisticated client" isn't correlated significantly with financial wherewithal. I suppose this may be true -- but based just on intuition, a correlation seems likely to me, especially in criminal cases. Of course, there may be unsophisticated wealthy parties, as where a moneyed party assumes that a big-bane firm is better than a Supreme Court specialist -- but overall I'd expect that there are very few situations in which an economic "have-not" is sophisticated about Supreme Court lawyering. Do you think there's any basis for a contrary assumption?
10.30.2007 2:56am
Um, I meant "big-name firm" -- of course. Poor touch-typing skills . . . .
10.30.2007 2:57am
Sean M:

Let me clarify. When I refer to "experienced counsel with a deep understanding of the Supreme Court," I don't mean lawyers with Supreme Court oral argument experience. Oral argument is only a small part of the picture, and not the most important part. I just mean someone who closely follows the Court, who is familiar with the kinds of arguments made at the Court (both at the cert stage and the merits stage), who is familiar with the Justices' views, who know how to count to 5, etc.


I did not mean to imply this; I am just interested in the question of causation, not correlation. I think it's pretty clear it does correlate with $$$ in some settings.
10.30.2007 6:06am
Public_Defender (mail):
I agree that local lawyers should do a better job of consulting with experienced SCOTUS counsel, but the SCOTUS bar is a part of the problem. Local lawyers who have litigated SCOTUS cases tell me that the SCOTUS bar is a bunch of back stabbing vultures. Many experienced SCOTUS lawyers are very willing to help (I've spoken to a few), but there are enough vultures that the entire bar has a bad reputation. That reputation makes it less likely that their "help" will be welcome.

Part of the problem is the lack of respect for local lawyers argung their first SCOTUS case. Experienced SCOTUS counsel are constantly trying to convince local lawyers to turn over the case. Also, some SCOTUS lawyers talk to local lawyers like partners would talk to associates (or professors to students) instead of like equal colleagues.

It's amazing that lawyers who are so good at persuading the justices are so bad at persuading their colleagues. Remember, if a local lawyer gets a case into SCOTUS, it's because 1) the lawyer did the impossible by convincing the Court to grant an IFP cert petition; or 2) the lawyer won a victory in the court of appeals or state supreme court important enough to merit the Court's attention. In either case, the client will likley want to stick with the winner.

Experienced SCOTUS counsel come out of the wood work when cert is granted. If they really want to help (instead of just get face time in front of the Court), they should watch federal court of appeals and state supreme court opinions for cert worthy issues. Then, they should call the attorney on the case an offer to help. Sometimes, the attorney will voluntarily turn over the case. Sometimes, the attorney will want petition-writing or amicus help. That's a lot more work. But if the first time I hear from is when cert is granted, I'm going to doubt your motives.

As I said above, the key factor is respect. When experienced SCOTUS attorneys call a local lawyer who just got a case into the Court, they treat the lawyer as a respected colleague chosen by the client. If they don't, they aren't likely to be very persuasive.
10.30.2007 7:25am
Sean M:
I think with the new formulation, Orin, a lot of my concerns are cleared.

Thanks for the reply.
10.30.2007 9:57am
CiarandDenlane (mail):
George Weiss: Having no direct experience in criminal plea bargaining, I'll put to one side CvMe's fighting with your hypothetical. But, even assuming that your hypothetical is right, I don't agree with what seems to be your view. You posit that a lawyer would be less likely to appeal an issue that may go to the Supreme Court if he knows that he will not personally be able to brief and/or argue the case in the Supreme Court. And that is bad how? The baseline of your "less likely" is the situation where the lawyer's decision to fight/accept a deal is influenced by the possibility that he will be able to appear before the Supreme Court. That's his interest, not his client's. Removing that interest by making it likely that the trial attorney won't handle the appeal more nearly aligns the attorney's personal interests with his client's.
10.30.2007 10:43am
humble midwesterner (mail):
I heard a behind-the-scenes account once of the voucher case (Zelman), which has been mentioned above. The Ohio attorney who argued the case in favor of the voucher system was modest, respectful, and deferential to the justices. The lawyers who argued against vouchers were big guns who acted very rudely and condescendingly, even to the point of interrupting justices.
The Ohio lawyer used this to her benefit, and capitalized on being underestimated. She fulfilled a kind of stereotype of the small town lawyer in the big city. The opposing lawyers overplayed their hand.
I'm wondering to what extent that kind of strategy can work. Is there a benefit to being an out-of-town attorney who does an excellent job and behaves respectfully, and draws out the condescension from the professional Sup Ct litigators, which turns off the justices?
10.30.2007 11:08am
humble midwesterner: There were three lawyers arguing on behalf of Ohio, including Ms. French, who did a superb job, and Ted Olson, one of the biggest guns around.

The attorneys for respondents were Robert Chanin, decidedly not among the big guns at the Supreme Court, and Marvin Frankel. Frankel was a former federal judge who argued several cases before the Court, but in 2002 he was well past his prime at 80 years old. He died a couple of weeks after the argument. Chanin did a poor job - abrasive and argumentative. Frankel had a lot to clean up following Chanin, and was unfortunately distracted by irrelevant matters.

This is all to say that the Zelman case doesn't tie up into the neat homily you relate.
10.30.2007 11:49am
humble midwesterner (mail):
Thanks for the more complete info.
I suppose I must remain a humble midwesterner.
10.30.2007 11:55am
George Weiss:

It will always depend on the state's laws, but I think most states at least allow for a defendant to plead guilty but obtain permission to still appeal a pre-trial issue like a motion to suppress. I know Texas allows it, because I'm an appellate prosecutor and handle those appeals quite a bit. ;) Even when he's not waiving his right to appeal, the defendant's still giving up his right to insist on a jury trial, which can be a lot of time, expense, and trouble to the witnesses. If your goal in offering a plea bargain is to prevent an abused child from having to undergo the trauma of testifying at trial, giving a plea bargain but allowing the defendant to appeal his motion to suppress can be a good bargain. It all depends on what both sides want and are offering.
10.30.2007 1:26pm
Kelvin McCabe:
To follow up on Kenvee - IL also allows people to plea after developing the factual record during the motion to suppress and then losing. They simply then stipulate to the facts brought out at the motion hearing for trial purposes and file the notice of appeal. Saves lots of time and hassle for all sides and keeps the appellate record confined to the facts that make up the legal basis of the appeal (the motion to suppress).

In addition, the State can appeal adverse rulings on motions to suppress -all they have to do is file a notice of signficant impairment - which usually isnt hard when the Judge suppresses from evidence the kilo of cocaine which is the basis of the charges against the defendant anyway.

I am working on the latter variety right now, and im curious to see if the appellate court gives the due deference to the trial court's factual findings that we see so often when the defendant loses his motion to suppress and appeals.
10.30.2007 2:09pm
George Weiss (mail):

you assume that not if the lawyers interest in his ego is take away by the scotus bar...that that will be a good thing becuase he shouldnt appeal anyway.

but what if he should appeal and now he soent want to?

what if a client would have wanted to appeal but the 3influance of the lawyers ego makes him counsal the cleint to accept a plea instead? then the lawyers ego being suppresed doesnt end in a nutrual balance ofthe instead hurts the client.

(holding in reserve of course the issue of how often people get to appeal after a plea)


thanks for your insight about the situation in texas.

however the fact that state law allows an appeal from a plea doesn't mean the defendant will not wavie it in his plea contract...

havntyou also had many cases where you movedto dismiss the appeal becuase the defendat wavied it in his plea?

and of course..many states may not allow it (again with the exception of not understanding the plea etc..)
10.30.2007 2:27pm
George Weiss:

Of course a defendant can waive his right to appeal a motion to suppress, but a defendant can waive pretty much every right he has. You were talking in absolutes -- plea deals require you to waive right to appeal, the prosecutor would never offer a deal if it didn't include the right to appeal, defendants waive everything "almost all the time" if he pleads. That's just not true. It's not a matter of state law, and it's certainly not a matter of state practice. I'm writing two briefs just this month on that issue.
10.30.2007 4:33pm
George Weiss (mail):

i was arguing more that it was the reality that prosecutors almost always try to work the waver into the plea deal...not the matter of state law.

i understand that it may not be almost always.perhapps its just somtimes...

but its a hypothertical...and as long as it is the case that "often" defendants must waive rights to appela when they plead..the argument holds
10.30.2007 8:15pm
CiarandDenlane (mail):
George: I was not assuming anything about whether it is a good idea for the client to appeal or not in your hypothetical. I suggest that it is the client's best interest -- whatever that is and however imperfect one's crystal ball may be in assessing it -- that should count and that reducing the effect of the lawyer's ego on the equation (totally eliminating it is probably never wholly possible)would be a desirable, rather than undesirable, thing.
10.30.2007 10:43pm
I know I shouldn't still be thinking about this, but the following just occurred to me: The doctor who diagnoses your heart murmur most often doesn't do the triple bypass. The trauma doctor who diagnoses your skull fracture doesn't perform brain surgery. And you wouldn't want them to. Use a general practitioner to keep you healthy. Use a heart surgeon when you need heart surgery. It's the same thing at the Supreme Court, only somehow the general practitioners' ego is hurt that they can't do brain surgery, and people ask, "Why would you diagnose heart disease if you'll never get to do the bypass?" For doctors and lawyers, it should be the best interest of the client/patient that matters. A GP in both fields might well find an interesting case that is best handled by a specialist. It's in the client/patient's interest that the best professional for the job does it.
10.31.2007 1:06am
George Weiss (mail):

a lawyer;s ego can help a lawyer stay motivated to help and argue for his client: to that extent its a good thing and is at the heart of the adversarial system. if its taken away..your left with what makes the most money for the lawyer in that case...

take away a lawyers ego to appeal and hell tell the client to plea out even when he should be more forthcoming about the guy's chances on appeal.


were not really talking about two different fields of law through..were just talking about the level of argument and the forum.
10.31.2007 2:00am