[Richard Lazarus, guest-blogging, November 1, 2007 at 2:35am] Trackbacks
Advocacy Matters: More Responses to More Comments

These second set of comments are just terrific. I am going to select out just a few for response.

1. It is certainly true that the impact of the advocate is greater at the cert stage than on the merits. I draw that distinction in the article and explain the reasons why, which largely relate to the amount of time the nine chambers are able to devote to cert (relatively little) as compared to the merits (much more, especially with the smaller docket). But the two cannot be completely severed because the cert stage sets the table these days for the merits. The percentage of affirmances has gone down over time. So success at the cert stage tends to become success on the merits, especially when the expert petitioner effectively repitches the case by raising issues differently than done below and the less effective respondent fails to object and becomes subject to a Rule 15.2 waiver.

2. Several comments raised the question whether the reputation of the counsel, wholly apart from the actual quality of the brief in a particular case, makes a difference. Based on my own experience and accounts of interviews with Supreme Court clerks, the answer seems clearly to be yes at the cert stage. Certain briefs are read more carefully and have more threshold credibility because of their author. This is true for petitions and certainly true for amicus briefs.

Of course, in most instances, the quality of the brief and the counsel's reputation are aligned. After all, that is why the counsel has such a strong reputation. But I am less persuaded that reputation alone, apart from the quality of the presentation, is controlling on the merits. At that point, actual quality not theoretical quality is what counts. Still here, when many amicus briefs are filed on the merits and only some are read closely, those authored by counsel whose names the Justices and clerks know are more likely to get a careful look.

3. I don't think there is much question that the vast majority of the top private Supreme Court Bar won't take on a pollution control case, whether pro bono or not (and most are pro bono). I frequently find counsel for folks with cases before the Supreme Court. For most types of cases, it is simply not a problem to interest, literally within two hours, some of the top Supreme Court lawyers. They will compete vigorously for these cases, agreeing to lengthy interviews, outlines of arguments, for the opportunity to take on a case. This competition extends to classic pro bono cases: death penalty, Free Exercise and Establishment Clause, Fourth Amendment criminal defense cases.

But give me a pollution control case and they will almost all beg off. Not because they would not like to do the case. Or because they like pollution. These folks love Supreme Court work and frequently chafe under their firm conflict policies. But they can't take them. It is bad for business as one comment pointed out.

Now, as one other comment suggested, this may prove to be a transitional moment and, if the Bar concludes that there is money to be made on the plaintiff's side, we may well see such a practice develop. There are already a handful of excellent SCT lawyers who have shown a willingness to take the plaintiff's side in business cases. David Frederick of Kellogg Huber.. is one obvious example. If the demand and paying clients develop, the Bar over time will respond.

Finally, one comment asked if I was deliberately using "pollution control" in talking about environmental cases. I was. There is far less of a conflict problem presented by natural resource law issues (e.g., public lands, national forest management) than by the kinds of air, water, and hazardous waste issues that implicate much of industry.

4. On the Exxon case, I knew I was going to get into trouble on that one, but provocation has its upside. The responsive comments were great. But I do have a few responses.

The first is that I was careful to say that cert might have been denied not just if an expert had written the opp but if BOTH an expert had written the opp AND a nonexpert had written the petition. I was not saying that changing just one of the variables would have made the difference. Note that petitioner was able to do the heavy lifting necessary to get 13 amicus briefs filed in support, in addition to putting the case in its strongest possible light in the petition. It takes great connections in the Bar to get that accomplished. A poorly drafted petition from the same ruling, without that amicus support, met by an effective opp, would, I still believe, likely have been denied. And that is all I was saying.

But now let me say more. I agree that Jeff Fisher is a great Supreme Court lawyer. I did not, however, see his name, however, listed on the brief in opposition. So I am not sure why the comment supposes he worked on the brief.

In addition, briefs in opp are a special talent and knowing how to write a good cert petition is not knowing how to write an effective brief in opp. An opp is a truly odd device. The opp's goal is to take an extremely important significant lower court win and make it seem incredibly boring, technical, insignificant, and uninteresting. One has to avoid the temptation to get sucked in to a deep discussion of the merits. Good opp writing is a peculiar skill.

Now, perhaps the brief in opp in Exxon is as good as it could have been. The firm on that side is certainly an excellent law firm and maybe Dellinger's skill (including the bringing together of 13 amici) made it a fait accompli. I can not know for sure. And, as before, I still have not had time to read the opp in detail.

But one reason I have not is that the opp is 30 pages, the max allowed by the Rules. I must confess that the page length alone causes me a little concern. When in the SG's Office, we learned that a long opp was often (not always) a mistake, because it unavoidably suggested that the case was interesting and invited the clerks to think long and hard about the merits and spend more time on it. The purpose of an opp is not to persuade the clerks that the decision below is right and truth and justice have been vindicated. It is to persuade them that it is uncertworthy and that can typically be done in a very few pages and when done in that manner, the short page length underscores your claim that cert should be denied.

Less in opps is almost always more. My goal for opps was 10 pages and, if at all possible, no more than 15, and I loved 5-10. A complete diss.

As for Allison Engine, the comment may well be right that the case was a slam dunk cert grant. As I said before, I have not looked at the case closely. My only point here is that what often looks like a slam dunk from the cert petition has taken a lot of work to look that way. I have read some lower court opinions, followed by a Carter Phillips cert petition, and been quite amazed at how the case has been effectively transformed to seem certworthy (and then cert is in fact granted). And, while it looks easy once it is written, that is only because of the expertise reflected went within it. And, conversely, a certworthy case in the wrong hands quickly becomes cert denied. It happens all the time.

One more caveat about Exxon and Allison Engine, which is to start where I began with them. I do not want to hold them out as poster-cases in support of my thesis. That would require far more study of their details than I have given and the opps in both cases might well have in fact been spectacular.. My article already contains enough internal support to warrant my conclusions and I would encourage those interested to take a look at it. What has been inevitably simplified for the purpose of this blog is treated in a far more nuanced and careful way in the full article. I mentioned those two cases only because the timing of two more grants from two leading members of the bar just as my blog was undergoing was too irresistible to go unmentioned.

Finally, it is important to stress that one can be a spectacular lawyer without being a spectacular Supreme Court lawyer. And, many of the best Supreme Court lawyers would be truly miserable trial lawyers. They don't have the correct skill set. And, yes, of course, there are some trial lawyers who would also be excellent Supreme Court lawyers. Some of the best arguments before the Court are by the trial counsel who handled the case the entire way. They tend, however, to be the exception just as the excellent Supreme Court lawyer who can be an excellent trial lawyer is also the exception. Specialization in the practice of law, including litigation in general and Supreme Court litigation in particular, has its advantages. And, what we are witnessing right now is a group of lawyers effectively exploiting those advantages to an extent not seen before the Court since the early 19th Century.

Yes, but you're still enthusing over the Champion's prowess at trial-by-combat without wondering if trial-by-combat is a good thing. Sure, advocacy affects the outcome of cases; but should it? And if it shouldn't, is there a better way?
11.1.2007 9:47am

It makes a difference how good the lawyer is-- and in many instances, WHO the lawyer is-- at every level. So long as some people are better than others at their jobs, or have prestigious reputations, human beings are going to respond to that.

I think that all of Prof. Lazarus's thoughts on the way advocacy shakes out at the supreme court may not be correct, but I think this is a fantastic subject for study. Perhaps quantitative methods would help. I was initially skeptical of the theme of his posts but now I think this is one of the better ideas discussed on this site in quite a while.
11.1.2007 10:17am
David Sucher (mail) (www):
If what Professor Lazarus says is true about the prejudice created by known personality in the petitions for Cert-- (and I have no reason to doubt it) -- then there you have a good reason to make such submissions "blind" so that the Clerks and Justices can't be swayed by the name on the petition.

And I can't see any reasons NOT to make such petitions blind (can anyone offered a principled reason?) except that it
1. diminishes the power of the SC Bar
2. might show that its reputation is unfounded.
11.1.2007 11:53am
PatHMV (mail) (www):
This isn't directly related to your excellent points, but it is something I've long been curious about. What percentage of cases in which cert. is granted were fairly obviously "test cases" which were expected to be headed for cert. from the beginning? Does planning for cert. at the trial stage make it easier to set the stage? I'm thinking of cases like Brown v. Board of Education, First Amendment challenges to new obscenity or Patriot Act-type laws.
11.1.2007 11:58am
PatHMV (mail) (www):
PersonFromPorlock, as I noted in an earlier thread, our entire system is premised on the idea that strong advocacy is essential to discovery of the truth. As the professor notes, the answer is often only obvious in retrospect, after a lot of hard work has gone into analyzing and explaining the matter in a particular way. Wise judges in an ivory tower can not determine the proper resolution in a vacuum.
11.1.2007 12:02pm
Adam J:
David Sucher- That's a surprising good idea; however it should only remain blind until the cert determination is made. Of course, clerks and Justices would never admit that they are influenced in any way by the name on the brief.
11.1.2007 12:08pm
And I can't see any reasons NOT to make such petitions blind (can anyone offered a principled reason?)

The name of the lawyer on the brief is an additional piece of information that has some probative value (however small) for the clerks and judges in deciding whether to grant cert. Why should the people making the decision have less information?

Your suggestion is similar to rules of evidence that prohibit juries from seeing certain kinds of evidence. Character evidence, hearsay, and that sort of thing are useful, but the idea is that the danger of juries giving too much weight to those things is so strong that we're better off depriving them of that evidence altogether.

Other than platitudes about human nature, I see no basis to apply that reasoning to the Supreme Court's cert process. The name on the brief is useful information, and the Justices and clerks should have it.

Another, somewhat unrelated reason is that signing the briefs makes lawyers more accountable.
11.1.2007 12:16pm
Adam J:
anonVCfan- I completely disagree, there is absolutely no probative value in the name. Please explain how you think it is appropriate for a judge or clerk to be making any inference regarding the merit of the case based on the name at the end of the brief! What useful information is gained from the name? The clerk finds out if the case has merit by reading the brief... not the name on the brief.
11.1.2007 12:30pm
Adam J:
anonVCfan- Oh, and I agree that accountability is important, that's why that the brief should be only be blind until cert is determined. Plus the name on the brief (after cert is determined) is useful for building an attorney's reputation- which is important for helping clients find the best attorney.
11.1.2007 12:42pm
Adam J, it's like brand names or anything else involving repeat players. Past performance is probative of future performance. If [insert name of Supreme Court specialist here---Tom Goldstein, Seth Waxman, Carter Phillips. etc.] has shown him/herself to be good at identifying certworthy cases and has not filed many frivolous or bad-faith cert petitions, then seeing that person's name on a future brief is a good indication that there's potential merit in the brief. Similarly, if you get a brief from Jonathan Lee Riches, you know that it'll probably be entertaining, but utterly frivolous.

Of course, that in no way excuses the judges or clerks from exercising independent judgment about the merits of the brief, but it is probative information.

There's a good argument to be made that this information will be abused--that clerks and Justices will not exercise their independent judgment to verify or refute what the name on the brief leads them to suspect about the merits--and that the names on the brief do more harm than good and create the appearance of impropriety, but that's entirely different from saying that the name on the brief is completely useless.

David Sucher asked if there is "ANY" reason to leave the names on the brief, and I suggested two.
11.1.2007 12:49pm
Now I'm reading your second comment... I agree on the accountability thing.
11.1.2007 12:52pm
Adam J:
anonVCfan- You are right in determining that past performance is useful in determining one's likely future performance. But what you're talking about is using past performance to determine present performance... which is just dumb. You don't give [insert name of Supreme Court specialist here---Tom Goldstein, Seth Waxman, Carter Phillips. etc.] a pass because his past briefs were good, you read the brief and determine if this brief is good. It's like a sports game, the past record may be useful in determining how they do in the next game, but you measure how they are playing today, by seeing how they are doing today- not by looking at a record of how they are done in the past.
11.1.2007 1:12pm
Right... I'm not suggesting giving anyone a pass. When I [I say "I" for clarity of expression--I'm certainly not a Supreme Court clerk] read something though, I form impressions and expectations that are revised as I go along. For example, if the first paragraph of a brief says "the Supreme Court is unconstitutional," I expect the ravings of a lunatic, and can quickly skim the next few pages, the section headings and table of citations to see if I need to spend more time on it. If those things change my mind, then I'll read the rest of the brief more closely. If not, I won't.

When a clerk or a judge has a limited amount of time to spend going through a few thousand cert petitions, the name on the brief can mark which ones are likely to contain cert-worthy issues. This may strike some as improper, but it's not useless or illogical. If 2 cert petitions are sitting on a table, the brief with Ted Olson's name on it is more likely to be worth a clerk's time than the one with J.L. Riches's name on it. This doesn't excuse a clerk from the task of examining both briefs, but it is useful information, and I wouldn't fault the clerk for spending more time on Olson's.
11.1.2007 1:46pm
That's my last word on this point... I think Adam J raises some good points, and any further response from me would probably be largely repetitive of what I've already said. Professor Lazarus raises several interesting points, and I donn't want to further drown out other voices or other commenters.
11.1.2007 1:49pm
Adam J:
anonVCfan- Certainly impressions and expectations are developed while reading the brief, that's part of evaluation, I'm only saying that impressions and expectations shouldn't start until the brief is opened. It's a flawed assumption to assume a good attorney is going to always have merit to his case.

Even a superstar attorney who can always pick a winner is going to take losers. They've gotta make a buck, and if a big client wants to fight a case with no merit to their side, guess what, the attorney is still going to take the case. And between a clerk's initial flawed assumption of merit based on the name attached to the brief, and the superstar attorney's skill at advocacy, you easily end up with a meritless case filling up the Court's limited resources.
11.1.2007 2:24pm
David M (mail) (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 11/01/2007 A short recon of what's out there that might draw your attention, updated throughout the check back often.
11.1.2007 2:44pm
NaG (mail):
There are generally three kinds of of parties that petition the Supreme Court for certiorari. The first are your pro se criminal defendants. Second are parties that are represented at the appellate level by the same counsel that handled the trial and intervening appellate procedure. Third are the parties who have retained appellate counsel specifically for this matter. The question is whether those in the third group should get slightly preferential treatment at the cert stage than the other two.

In thinking about this, it is important to recognize that these appellate-specialists often have the luxury of being able to choose which cases they will take. As such, they will tend not to sign on to cases that they do not think have a chance of cert and a win on the merits. They have a reputation to maintain. The same is true at the trial level -- often, the biggest difference between the successful trial lawyer and the scrub is the former's ability to pick out the winning cases.

Pro se criminal defendants appeal because what else are they going to do -- sit in jail? Parties that still utilize their trial counsel are either trying to avenge a loss or preserve a win. The interests of these two groups are relatively immediate -- winning and losing. They aren't as concerned about the long-term development of the law, while the Supreme Court is. That puts these parties at a bit of a disadvantage when it comes to pitching their case to the Justices.

But here's the thing: are appellate specialists more successful at the cert stage because their names carry more weight, or are they more successful because they are better at picking cert-worthy cases? I think the latter explains most of it. I don't think there is any specialist famous enough to be able to compel the Court to take a case on name alone -- or to compel the Court to not take a case on the same basis. That would be corrupt.

The whispered implication that the Supreme Court is favoring practitioners over the law is simply threadbare. That the specialists get a closer reading doesn't mean the pro se litigants are getting barely a reading at all. And the rate of success of the specialists makes sense when one considers that specialists spend their time looking for cert-worthy cases (or being pitched cases seeking appeal) and then working on them. Besides, those of you who think that "blind grading" at the cert level will make a difference are fooling yourselves -- the discerning Justices will often be able to tell the difference on the pleadings alone.
11.1.2007 2:49pm
NaG (mail):
Adam J: "And between a clerk's initial flawed assumption of merit based on the name attached to the brief, and the superstar attorney's skill at advocacy, you easily end up with a meritless case filling up the Court's limited resources."

And how often is that, exactly? Considering how many cases are taken on by the "superstars," there are amazingly few DIGs, even if we assume the superstars were responsible for all of them. "Easily" just ain't the word.
11.1.2007 2:53pm
Adam J:
NaG- Fair enough, "easily" might not be the word, but if it happens at all it's a problem. And just as I can't determine whether practitioners are being favored over the law, you can't determine that they are not. Obviously you can't avoid good advocacy defeating merit on occasion, but you can avoid "brand name" recognition defeating merit- so why don't we? If you agree that the name is an improper reason for determining cert, and you agree that it could influence a decision, what's the harm in removing the name from the picture? Also, of what relevance is the number of DIGs- who's to presume a poorly granted cert petition is going to be dismissed before review?
11.1.2007 3:26pm
NaG (mail):
Adam J: DIGs are cases that the Court determines, after granting cert, should have never been granted cert. I figured that spoke to your fear that a specialist could get a completely meritless case before the Court on name alone.

I think the main flaw in your reasoning is this: the pox on specialists getting an extra eye at the cert stage only carries water if granting cert to the specialist's case necessarily meant dismissing the petition of an otherwise cert-worthy case by "regular" counsel or a pro se litigant. There is nothing to suppose that this is the case. The Court has no quota in the number of cases it will hear. It will hear as many cases as it thinks need to be heard. That the specialist's case may have a better chance of getting cert doesn't mean that the other cases are correspondingly less likely to be granted cert. Each stands on its own merits. It's just that specialists are better able to tell which cases have more merit and are better able at conveying that merit to the Court.
11.1.2007 4:09pm
Adam J:
I know what a DIG is, I just don't see how you can assume that a case where cert is granted under the circumstances I suggested will therefore be "DIGed." Also, what does a quota have to do with it- are you suggesting the Court has limitless resources- clearly every case granted cert leads to less resources available for other cases (that's just economics). Also, I think you're assumption that specialists are chosing cases based on merit is largely wrong, they're also considering what other business the potential client might bring- in fact I suspect they prioritize this over merit. I have no problem with a specialist getting an "extra" eye because of his skill for advocacy- there isn't much we can do about that with the adversarial system- the problem is when there's an extra eye merely because of who he is. Maybe it's difficult to measure how much of a problem this is, but that doesn't mean it's not a problem- and it seems to me easily correctable when it comes to granting cert. Also, I can see no real downside of a blind petition, your only argument is that it's not a problem.
11.1.2007 4:35pm
NickM (mail) (www):
Keeping cert petitions blind would also require a gag rule on attorneys publicly discussing the cases they are filing petitions on. A few law professors do this on a rather frequent basis.

Keeping cert petitions blind would also have unusual results in the cases where a justice's recusal is required due to a past professional relationship with counsel.

11.1.2007 4:49pm
Adam J:
NickM- interesting point on the gag rule, although I'm not sure how much "gagging" would be necessary, that is a valid problem. However your second point is a point actually in favor, since their blindness would remove the conflict (in much the same way as blind trust investments remove a judge's conflicts).
11.1.2007 5:02pm
CarolynElefant (mail) (www):
One issue that I've been wondering about is the Tom Goldstein effect on Supreme Court practice. I remember reading about Goldstein when he came on the scene about ten years ago, and how other practitioners derided him as an ambulence chaser for aggressively seeking out circuit split cases. Much of the criticism seemed to suggest that Supreme Court practice was too elite or genteel to be treated as a rainmaking business and yet, that is exactly what Goldstein accomplished. Since then, firms have followed suit and tried, more aggressively to build Supreme Court practices - and they've done so by offering to handle those cases that the local lawyer at the trial or appellate level would have handled. Because of that phenomenon, Supreme Court cases have become consolidated in the hands of a few firms that aggressively target them instead of being spread out amongst local practioners who typically handle them.
11.1.2007 11:23pm
NaG (mail):
Adam J: A case worthy of being DIGed is the quintessential example of the "meritless case filling up the Court's limited resources" that you described. If you can't see the connection, then I'm afraid we'll just have to leave it at that.

No, the Court does not have limitless resources. But it certainly could hear more cases than it does now. I say that because, historically, the Court has usually heard more cases than it does now. Thus, specialist-backed cases are not squeezing out the others.

As for my "assumption" about how the specialists choose cases, re-read CarolynElefant's comment. The whole point of these specialists have been their willingness to aggressively target cases ripe for cert. That's what sets them apart from regular practitioners. There are very few people who make it their business to know where the circuit splits are and then hunt down cases that could be used to bring that split before the USSC. There are fewer still who specifically create such cases expressly for that purpose. These are the people we are talking about. They trust that their specialty will attract additional business on the side, but the fact is that appellate practice as a boutique business is almost entirely novel. It's not a money-maker. It's a prestige thing.

As for the downside, again, you're overstating the issue. That some specialists get an extra eye doesn't mean anyone else is getting less of an eye. The Court reads everyone's briefs. If a specialist's brief doesn't appear to merit cert, they will give it an extra read. That's all. The Court doesn't feel bad about rejecting cert for a specialist, and is certainly professional enough to keep personal affection out of the equation (especially given that it still takes four votes to grant cert). According to your argument, why not make ALL briefs in ALL courts blind? Is justice being subverted that widely?
11.2.2007 10:30am