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[Richard Lazarus, guest-blogging, October 30, 2007 at 12:51am] Trackbacks
Advocacy Matters: An Update and A Few Responses to Comments

One threshold note. The Court granted review yesterday (Monday 10/29) in only two cases: the Exxon Valdez damages case and the Allied Engine qui tam case. The petitioners in both cases were the business defendants and, consistent with my thesis, petitioner's counsel of record in the first case was Walter Dellinger and the second case was Ted Olson.

This is not a question of liberal and conservative lawyers. This is simply excellent work performed by expert Supreme Court advocates on behalf of their business clients, knowing how best to pitch their cases to the Justices (and their law clerks). Knowing how to use amici at the cert stage, Dellinger secured the filing of 13 amicus briefs in support of the petition, filed by other leading members of the Bar. I have not reviewed the opps filed in the two cases, but I would expect that if less skilled lawyers had drafted the petition in each case and Olson and Dellinger had been representing the respondents in each (rather than the petitioners), they might well have persuaded the Court to deny review.

One comment pointed out that the advocacy gap is greater in many lower courts. I don't deny that. My point only is that the precedential impact of the gap in the U.S. Supreme Court is clearly greater and, for that reason, even small gaps can have a very large practical effect. And the advocacy gap is not small before the High Court, although as the article explains there is reason to believe it may be temporary in some areas of the law.

Several comments wondered why law firms generally don't handle environmental cases and questioned whether the Court's ruling in MA v. EPA undermines my thesis. As a general matter, the top Supreme Court litigators won't take on environmental pollution control case on behalf of an environmental plaintiff. They will do lots of classic criminal pro bono work, but not the kinds of classic pollution control cases that might upset the business community that serves as their client base for possible high-paying cases before the Court. You likewise won't see hardly any of those firms on the plaintiff's side of a torts case.

MA v. EPA certainly provides a counter-example in part to the trend I describe in the Court's docket. But, at the end of the day, its aberrational nature underscores how remarkable that trend in fact is. When the Court granted review in MA v. EPA and a few weeks earlier in ED v. Duke Energy, those two cases represented the first time that the Court had granted review on behalf of environmentalists over the federal govt's opposition since Sierra Club v. Morton in 1971. That's a long time.

One comment points out that advocacy alone cannot explain the NEPA cases and another argues that perhaps the environmentalists simply lost because their cases were weak on the merits. With regard to the first, clearly the makeup of the Court plays a role. If the Court had 9 Justice Douglases, environmentalists would not have lost any of those cases. My point here is just that absent such an extreme Court, advocacy makes a big difference and not of course that it is the only significant factor.

Addressing the second point, it was the SG's Office skill as advocates that prompted them to be selective in picking the NEPA cases to take up to the Court and in choosing what legal issues to raise and not to raise. There were many lower court NEPA losses the SG's Office did not take up even though their client agencies sought SCT review. And, in many of the NEPA cases the SG took up, the SG was careful to abandon losing arguments pressed in the lower courts. The best advocates know how to pick their cases and their arguments. That is how one can turn losers into winners.

Rabbit:
Lots of people seem to be conflating the cert stage with the merits stage. Many of your arguments, Prof. Lazarus, seem irrefutable with respect to the cert stage without even considering the merits stage. Maybe it would be useful to more clearly distinguish those two aspects of advocacy.
10.30.2007 2:20am
PersonFromPorlock:
Is advocacy anything but salesmanship? How would you feel if you found out your doctor prescribed treatment based on which drug companies have the most convincing salesmen, and why should we feel differently if the courts do likewise? Don't judges and justices owe us due diligence to select cases based on the cases' merits and not on their presentation?
10.30.2007 7:37am
Ralph Phelan (mail):
As a general matter, the top Supreme Court litigators won't take on environmental pollution control case on behalf of an environmental plaintiff.....
When the Court granted review in MA v. EPA and a few weeks earlier in ED v. Duke Energy, those two cases represented the first time that the Court had granted review on behalf of environmentalists over the federal govt's opposition since Sierra Club v. Morton in 1971. That's a long time."


For your analysis to be meaningful you have to take it as a given that the cases being brought are valid. But the choices that are "rational" for a political organization that survives on fundraising will appear irrational to a lawyer who assumes that the only conceivable purpose of filing a suit is to win.

I propose the following hypothesis:
When environmental groups push a case "over the federal govt's opposition" it's a crap case that only a ideologue could think had any chance - or worse yet a firvolous case that everyone with legal knowledge knows has no chance, and which is being pursued purely for its publicity/fundraising benefit. And that that's why neither the court nor the reputable legal firms want to touch it.

Under this hypothesis you've merely be observed yet another instance of the well-known phenomenon that the existence of a public agency reduces the demand for private institutions working in the same "market." By this theory private environmental groups' poor showing in front of the SC is simply another aspect of their struggle to find a reason to continue in operation: the EPA is doing to the Sierra Club what PBS did to "Air America" - in both cases not by design but merely by existing.

I would welcome any evidence that would falsify this hypothesis.
10.30.2007 9:21am
Zathras (mail):
My previous comment that "the advocacy gap is greater in many lower courts" was meant as supplemental, not replacing. It is certainly an issue on every level of advocacy. I will be very interested to see if your proposed remedies are able to address the gap on both levels.
10.30.2007 9:47am
Marklar (mail):
I cant but help be cynical - couldnt environmentalist woes at the SCOTUS level be traced to the composition of the Court, rather than expert advocacy? If so, there would be a co-relation between being a flush corporation, the ability to hire the likes of Olson et al, but the causation would be simply the inclinations of the justices themselves.
10.30.2007 10:22am
Daniel San:
Porlock: Don't judges and justices owe us due diligence to select cases based on the cases' merits and not on their presentation?

In the ideal world, of course. But that is true at every level of decision-making. I should make my meal choices according to nutritional considerations and choose my library according to my needs, but presentation makes a difference. There are worthy products that escape my attention and worthy cert petitions that don't get noticed by the Court.

Keep in mind that these are marginal differences where there is legitimate debate about the best choice. A skilled drug rep is not going to convince your doctor to prescribe an ampehtamine for your headache, but may influence a decision between two comparable products. A skilled attorney presentation is not likely to produce a dramatic change in a judge's outlook unless the judge has missed something that the attorney can make clear (juries are a different matter). Even the best judges have limited information, limited perspective, and limited attention; it is the job of an attorney to broaden that perspective and draw the attention to key information.

To say the presentation matters is not to say that the system has failed. It is to say that the system is imperfect and presentation helps.
10.30.2007 10:29am
PatHMV (mail) (www):
How could we determine whether the effect you've noticed is caused by actual superior advocacy by the elite bar or whether it's caused by superior brand recognition, by Justices and their clerks, of the names of the elite bar?

I'm speaking here primarily of decisions to grant cert., not merit decisions. Isn't it possible that a clerk sees that a brief was written by Ted Olson or Walter Dellinger and, because of their reputation, they simply assume it's a good brief on a case that must be cert-worthy?

Alternatively, it would seem to me that it's also possible that the elite bar is simply better able to predict, when deciding whether to take a case on behalf of a client, what is and isn't cert-worthy. In other words, it seems possible that if you simply hired them to predict whether cert. would be granted in a case, and then had another lawyer actually draft the cert. petition, then the results would be the same?

I doubt it would be possible to separate out these various effects without a random-selection trial which, of course, would not be possible, but these alternatives to simply "they're better advocates" should be considered.
10.30.2007 11:22am
Ralph Phelan (mail):
"Isn't it possible that a clerk sees that a brief was written by Ted Olson or Walter Dellinger and, because of their reputation, they simply assume it's a good brief on a case that must be cert-worthy?"

If they do make this assumption, mightn't it be a reasonable one?

The assumption would be based on prior experience (a large sample of good cases) and a realistic assessment of those lawyers' rational self-interest: they're not going to dilute their own brands by taking on a weak case. The clerks obviously shouldn't let "brand loyalty" make the decision for them, but it is a rational reason to look more closely at something they at first might have thought uninteresting.
10.30.2007 11:32am
PersonFromPorlock:

To say the presentation matters is not to say that the system has failed. It is to say that the system is imperfect and presentation helps.


Still, presentation is 'presented' here as a Good Thing and not as a way of taking advantage of the system's flaws. It's exactly as though we were exhalting the skills of lobbyists without ever wondering if lobbying promotes good laws.

At some point, celebrating 'the sizzle' devalues the steak and that's what I see here. Why not talk instead about how the courts need to refine their procedures - and perhaps need more money to do so - so that both applications for cert and the cases themselves can be decided on the merits?
10.30.2007 11:33am
Daniel San:
PatHMV: How could we determine whether the effect you've noticed is caused by actual superior advocacy by the elite bar or whether it's caused by superior brand recognition, by Justices and their clerks, of the names of the elite bar?

That brand recognition is part of advocacy. If a judge considers me respectable and credible, I am a better advocate to that judge. In most cases, all things being equal, I want an advocate with positive brand recognition.

Your other point, about selection bias, seems correct. A skilled and experienced attorney is better a choosing cases and should tell a client whether a case is worth pursuing. That certainly boosts the win-loss ratio.
10.30.2007 11:37am
PatHMV (mail) (www):
PersonFromPorlock... because advocacy is not mere "sizzle." In our system, strong advocacy is considered an essential component of the truth-seeking process. We have an adversarial system of justice precisely because we believe that "neutral experts," sitting ind their chambers thinking by themselves, do not, ultimately, do very well in looking at a problem from all possible points of view. Strong argument by two (or more) sides with a serious interest in the outcome is an essential part of helping judges make difficult decisions.
10.30.2007 12:02pm
PatHMV (mail) (www):
Daniel San... certainly a good point. I've known many lawyers, however, who deserved their good reputation when they were younger, but retained that reputation long past the point when it was deserved.

What's the saying? You pay a new lawyer $50 an hour for $500 an hour worth of work, and you pay an old lawyer $500 an hour for $50 worth of work.
10.30.2007 12:06pm
David Sucher (mail) (www):
This a troubling but useful post. One would be naive to believe that the Court -- this Court, anyway -- is anything but a political body. But to see it presented so baldly is refreshing.

I wonder if a useful reform would be for petitions at the cert stage to be offered anonymously? or through some sort of blind, (should there any back-and-forth in the course of a petition's consideration?)

The advantage would be that the Clerks and their Justices would not be able to see the brand but would have to judge the petition on its merits.
10.30.2007 12:11pm
David Sucher (mail) (www):
Btw, for the layman, this statement is an extraordinary one:

"As a general matter, the top Supreme Court litigators won't take on environmental pollution control case on behalf of an environmental plaintiff. They will do lots of classic criminal pro bono work, but not the kinds of classic pollution control cases that might upset the business community that serves as their client base for possible high-paying cases before the Court. You likewise won't see hardly any of those firms on the plaintiff's side of a torts case."

I have no reason to doubt it but it is so striking that I wonder where I could find documentation...some sort of historical analysis...or maybe an "I was there" from an "elite" (self-described) attorney. I am somewhat surprised that with all the environmental litigation that there is not a plaintiff's bar for environmental suits...and with tort cases, follow the money. Why no "elite" Supreme Court Bar there?
10.30.2007 12:16pm
NaG (mail):
David Sucher: I don't think Lazarus' post indicates that the Court is political. The Court gets thousands of petitions every year, and is always looking for help in trying to decide which petitions are worth hearing. Well-regarded practitioners that have proven themselves capable at identifying cert-worthy cases and issues will naturally be able to bend the Court's ear at the cert stage to a certain extent. That isn't political; that is merely one group of experts informally assisting another.

I think Rabbit's comment, echoed elsewhere, is particularly relevant, that high-quality representation makes a difference at the cert stage but perhaps not so much at the merits stage. Sometimes a case is an obvious candidate for cert (like the D.C. gun ban case), but on the more marginal cases a perfectly-tuned pitch may make the crucial difference. However, that doesn't mean you will win the case. I would not be surprised if the big Supreme Court practitioners all have relatively modest records in the win/loss column, something close to 50-50. A Solicitor General is probably the best candidate for a winning record. But does that matter? Getting the Court to grant cert is a pretty important victory in itself. In that narrow circumstance, I think Lazarus' comments are well-taken.
10.30.2007 12:26pm
anonVCfan:
I had the same thought about selection bias as PatHMV. I think that Prof. Lazarus considered it, though, and that it comes out more clearly in the article than the posts.

As some of the commenters have brought out, part of the Court's job is to look past reputation to the merits of the cases and also not to depend on these "specialists" to fill their dockets at the cert stage.

I'm still trying to figure out what Prof. Lazarus's main point is, though. Advocacy certainly "matters," but any clerk can tell you that. Judges have a lot of talent and a lot of resources, but a limited amount of time and can't be expected to think of every single good argument on either side of the case and reach the Platonic ideal of the "best" decision in every case. If there are non-obvious legal arguments that could influence the result of a case, skilled lawyers who can discern those arguments and present them effectively will "matter."

The more interesting point appears to be the effect on the Supreme Court bar on the Court's docket, particularly the "business" cases. I wonder though, how much that can be traced to the lawyers and how much other factors are responsible. In some quarters, there's been a feeling that for a long time the Supreme Court has taken too few business cases and has been excessively interested in civil rights and criminal procedure. The last few terms might represent a correction of sorts. Maybe it's due to the lawyers, maybe it's the turnover on the Court, maybe the business community's arguments are finally being taken seriously for other reasons, or maybe it's just a coincidence... Tellabs v. Makor, for example, was a case in which there was a clean circuit split on a question of federal law that the courts of appeals repeatedly pointed out, and I doubt that Carter Phillips's talents were needed at the cert stage.

Twombly, on the other hand... my initial impression is that David Frederick deserves lots of credit for getting the Supreme Court to take the case and to rule as they did...
10.30.2007 12:29pm
David Sucher (mail) (www):
One more remark: there is a useful analogy of the SC to the "elite" publishers who will not even look at a manuscript unless it is defacto vetted by an authors' agent they know. In both cases it is human nature -- regrettable but still human -- that people find it easier to make a decision on their own with the imprimatur offered by "elite" SC Bar or well-known agents than solely by their own judgment.

With the publishing industry, there is not much to be done because we have only private actors in a non-monopoly situation. With the Court, it is cause for concern and perhaps reform.
10.30.2007 12:34pm
Shertaugh:
Prof Lazarus:

A couple of observations. And a question.

First, the Exxon case involved excellent advocates on both sides.

The respondent was represented by, among others, Jeff Fisher of Davis, Wright &Tremaine. Fisher, who clerked for Stevens, is batting 1.000 in his pro bono criminal cases before the SCOTUS involving the Confrontation Clause and the unconstitutionality of the US Sentencing Guidelines.

What may have made Exxon appealing to the Court is it (1) comes from the 9th Circuit, (2) the panel seems to have ignored contrary SCOTUS (1818) and 9th Cir (1905) authority governing punitive damages in maritime cases in favor of the SCOTUS's general punitive damages cases (like Haslip, and (3) a clear split in circuit authority now exists because the panel did not, as other circuits have continued to do, follow the SCOTUS rule writ in 1818.

Second, the Allison Engine case (you have a typo in your post calling it "Allied Engine") -- petitioned by Ted Olson -- I think was an easy call for the Court. Both the DC Cir's majority opinion by then-judge Roberts in Bombardier had a compelling dissent from Judge Garland that the 6th Cir's 2-1 majority in Allison adopted, with the dissent taking Robert's side. It's an important issue with the split clear. And you have the Chief Justice having already squarely weighed in on this very conflicted issue.

My question to you is this.

In what can fairly be called "business cases," the defendant-petitioner in Allison Engine called Gibson Dunn &Crutcher's Olson. Absent conflicts, the defendant-petitioner could have hired, absent a conflict, Carter Phillips or Maureen Mahoney or Andrew Frey. The same is true in the Exxon case -- on both sides, considering the amount of money involved.

But that's not true on the respondent-plaintiff's side of Allison Engine. Lawyers who represent qui tam relators are plaintiffs lawyers, at least generally. That group is obviously adverse to the very class of clients who pay for the services of Olson, Phillips, Mahoney, Delinger, et al.

So who are the plaintiff lawyers to call in that situation?

Who in the SCOTUS bar is willing to take a position adverse to his or her firms' every corporate client doing federal contracts or business?
10.30.2007 12:34pm
Visitor Again:
I rather think that U.S. Supreme Court justices and staff are capable of recognizing a good petition or brief and a good oral argument whoever writes or delivers it. I think they delve deeper than labels and go beyond brand recognition.

And, after practicing law for 39 years, I believe there are hundreds and probably thousands of lawyers capable of writing excellent petitions and briefs and of delivering excellent oral arguments before the U.S. Supreme Court. Many, perhaps most, never get the chance.

It may be true that fewer lawyers are handling more and more cases that reach hearing before the U.S. Supreme Court, and I suppose that does make them an elite, but the proposition that only they are capable of doing an excellent job before the Supreme Court is unwarranted elitism.

I have a pretty good idea of the advocates I'd choose to represent me or someone I cared about in a criminal, constitutional or civil rights case before the U.S. Supreme Court, and they're not members of any elite U.S. Supreme Court bar.
10.30.2007 1:11pm
Adam J:
Visitor Again- It's not unwarranted elitism, it's just specialization. You might have two equally talented attorneys, but if has more experience at a particular job (like advocating before the Supreme Court), it's pretty safe to say he'll do that particular job alot better.
10.30.2007 1:43pm
Ralph Phelan (mail):
"I have not reviewed the opps filed in the two cases, but I would expect that if less skilled lawyers had drafted the petition in each case and Olson and Dellinger had been representing the respondents in each (rather than the petitioners), they might well have persuaded the Court to deny review."

Until you do that review you are assuming your conclusion, which is that what the USSC Bar does to make cases good is more important than their ability to recognize cases that already are good.
10.30.2007 2:25pm
A.S.:
Several comments wondered why law firms generally don't handle environmental cases and questioned whether the Court's ruling in MA v. EPA undermines my thesis. As a general matter, the top Supreme Court litigators won't take on environmental pollution control case on behalf of an environmental plaintiff. They will do lots of classic criminal pro bono work, but not the kinds of classic pollution control cases that might upset the business community that serves as their client base for possible high-paying cases before the Court.

I'm having trouble interpretting this statement.

First of all, there is an ambiguity between pro bono and paid work. I can understand if a large firm doesn't want to take pro bono environmental cases. But they are turning down environmental groups willing to pay the firm every cent as much as Exxon? That would surprise me. After all, firms are perfectly willing to upset Exxon by working for Shell.

Secondly, the focus of the statement on "environmental pollution control case[s]". Is this the bulk of environmental cases that rise to the Circuit Court of Appeals and Supreme Court level? I can't tell if Lazerus is trying to unduly narrow the statement.

In any case, I'd love to see some quote by the Sierra Club, or NRDC, or Audobon Society, saying that they tried to hire Gibson Dunn (and offered to pay them full fees) but were turned down because the firm doesn't like environmental cases (as opposed to an actual conflict of interest).
10.30.2007 2:39pm
Ralph Phelan (mail):
"Secondly, the focus of the statement on "environmental pollution control case[s]". Is this the bulk of environmental cases that rise to the Circuit Court of Appeals and Supreme Court level? I can't tell if Lazerus is trying to unduly narrow the statement. "

This whole thing is starting to smell to me like a political campaign on the part of environmentalist groups who are losing power due to shifting politics and/or the poor merits of their claims, but would like to blame it on "unequal access" to the courts.

The "non-federally-approved environmental case" dataset is fatally flawed - the effects of type of representation, broad societal political trends, the effects of organizational politics on case selection, and the possibility of USSCB discrimination against certain types of client are all inextricably mixed.

If Lazarus really wants to know how important USSC Bar member representation is, it's time to examine datasets from unrelated fields. Try examining its effect on something like criminal procedure or intellectual property cases. The ideal type of case to examine would be one where both plaintiffs and defendants had both USSCB and non-USSCB representation.
10.30.2007 2:54pm
DCL (mail):
A few general thoughts, from someone who is a member of the Supreme Court bar and has worked with environmental groups extensively. One, it is very difficult to get members of the elite bar to represent you if you are an environmental group. I don't think it's bias on the part of the bar. It's just that conflicts of interest with industry group clients are a serious problem. Environmental groups even have trouble getting firms to provide pro bono assistance on tax and general counsel matters because of conflicts. It's just a fact.

As to the merits of environmental cases, environmental groups actually win a fair number of case before the Court when they have prevailed at the appellate stage. I suspect Professor Lazarus can back this up with data.

But environmental groups are extraordinarily choosy about bringing cases before the court and will more often than not REFRAIN from filing cert petitions even when their interests may warrant it. That has a great deal to do with the ideological make up of the current Court.

Look at the number of 5-4 cases, and more specifically, the dripping rhetoric of the conservative 4 in cases like Rapanos and NAHB v. Defenders. I think it is largely undeniable that an environmental case in the current Court starts off 4-4, with Kennedy the only one legitimately up for graps. We have no interest in making bad law for our cause.
10.30.2007 3:46pm
r78:
To the extent that Valdez supports your argument, it also disproves it because the opposing side was represented by an extremely skilled attorney.

The only way to properly test the thesis would be to find cases involving large corporations who have been hit with environmental verdicts and who are represented by novices at the Supreme Court while the opposing party is represented by a skilled Supreme Court advocate and then compare what happens with all the other cases. Not likely to happen.

So while you can unfold an argument that the "inner circle" of Supreme Court advocates is very important - and while it is a group whose members and wannabe members certainly don't shy away from preening - there really isn't any way to test the validity of the assertion.

In fact, I would make the opposite argument. Having a skilled advocate represent you is far more important in trial court than it is on appeal. First, a skilled trial lawyer will be able to create many appellate issues. Second, when the client is in trial, its attorney is its only advocate before the court or the jury. When a case winds its way up to the Supreme Court, there are many skilled legal minds who will look at it to see whether there is any basis for cobbling together the 4 votes needed to get it before the court - even if the attorney filing the papers is a putz.
10.30.2007 4:23pm
David Sucher (mail) (www):
NaG says:

"I don't think Lazarus' post indicates that the Court is political. The Court gets thousands of petitions every year, and is always looking for help in trying to decide which petitions are worth hearing. Well-regarded practitioners that have proven themselves capable at identifying cert-worthy cases and issues will naturally be able to bend the Court's ear at the cert stage to a certain extent. That isn't political; that is merely one group of experts informally assisting another."

Political is not the same as partisan. Your satisfied defense of the status quo is circular reasoning: we have agreed with old school chum so-and-so before so we might as well give him more credence now.

More to the point: The fact that the Court will read Ted Olson's brief differently than it does some unknown's is human but very wrong. We have a systems of laws not people and so to the extent humanly-possible, the Court should be reading the words on the petition/brief and not the signature below it. NaG's defense of credentialism is very human but also unfortunate.
10.30.2007 6:43pm
NaG (mail):
David Sucher: Sorry, man, but I'm not falling for your bait-and-switch on what "political" means.

Credibility is a part of the law, in part because public policy concerns consider the future effects of current decisions. The vast majority of the cases before the Court are there because somebody didn't like losing at the lower court. The Court is not around to overturn every bad decision -- if it did that it would be hearing perhaps hundreds more cases every year. It's there to guide the law. That means thinking about where the law is headed. And credibility plays a part in that. The Court doesn't ignore pro se litigants, nor does it take every case Ted Olson is involved in. But Ted Olson can take a marginal case and make it one that the Court will hear, while a pro se litigant cannot. Until cases stamp themselves "cert-worthy," people are going to be making the pitch and the call.
10.30.2007 11:27pm
David Sucher (mail) (www):
Sorry, NaG, I don't see you making a very persuasive case that allowing the personality of the advocate ("credibility") such a large role is consistent with "we are a nation of laws not men."

I agree that as human beings the members of the Supreme Court are understandably & inevitably swayed by the signature on the petition.

But I can't get that you are seriously saying that such prejudice is a good thing and are rejecting my proposal of anonymous petitions for cert. (I can't see anonymity going much further, of course.)
10.31.2007 2:18am
Ralph Phelan (mail):
Sorry, NaG, I don't see you making a very persuasive case that allowing the personality of the advocate ("credibility")
Credibility is not about personality, it's about track record. "I don't see anything cert. worthy at first glance, but this guy has never wasted my time before. Maybe I spend an extra five minutes and look a bit closer."
11.1.2007 10:07am