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Wednesday, March 29, 2006

Supreme Court Practice. The newest issue of The Journal of Appellate Practice and Process has a number articles on Supreme Court Advocacy: Acquiring the Necessary Experience. This is a topic of great interest to me, given my special interest in appellate advocacy and Supreme Court advocacy being at the top of the heap of that discipline. There is a preface by David C. Frederick, the author of Supreme Court and Appellate Advocacy. It is interesting, but it leans too much to the modern belief that Supreme Court advocacy is best done by Supreme Court specialists. While there is a lot to be said for that school of thought, the idea that you should stay away from the Supreme Court unless you've worked for the Solicitor General or some advocacy group that appears before the Court often is hard to swallow. As lawyers, we often deal with issues in areas of law, which we are new to. We might even go to Courts that we have never been to before. Should a lawyer, no matter how experienced, never take on an antitrust case because he or she is not an antitrust expert?

Fortunately, there is a growing literature on Supreme Court practice, Supreme Court oral arguments can be downloaded off the internet, and examples of cert petitions and merits briefs from the Court are readily available. (See here and here, for instance.) So while a practioner might give serious thought before taking on a case before the Supreme Court (assuming he or she is lucky to get one), I would argue that it is something that can be done without being an experienced Supreme Court practitioner.

I shouldn't give you the impression that Mr. Frederick only speaks of this subject; indeed, it is only a subtext, which I pick up because I am sensitive to it. Although I have filed amicus briefs (both at the petition stage and the merits stage), cert petitions and oppositions to certiroari, I have never appeared before the Court . . . yet. And I refuse to be deterred.

There is an article on the Stanford Supreme Court Clinic run by Tom Goldman, an experienced Supreme Court advocate who blogs at SCOTUSblog, Amy Howe, his wife and partner, and Pamela Karlan of Stanford. That clinic is only of use to attorneys who wish to appear before the Court if you are a student at Stanford, in which case it is excellent. If you have a case that might merit Supreme Court review but which your client cannot afford, the clinic might take the case, but you are basically going to be handing it off to the students and the instructors. But since the instructors (Goldman, Howe and Karlan) are top notch, it certainly would good for the client.

Frederick also mentions that the Georgetown Law Center's Supreme Court Institute provides free moot courts if you are arguing before the Supreme Court, provided you are the first attorney on a case to get in touch with it. I expect that that is a very helpful service to an attorney, whether experienced or not.

I have not read the other articles in the issue (although I'm pretty much through the one on the Stanford Supreme Court Clinic), and I may have more to add in another post. We'll see.

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