[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.