The View from the Back Bench

During my two-year stint as a law clerk with the Supreme Court of South Carolina, I learned that an appellate court law clerk spends 98 percent of his or her time sitting at a desk reading, writing and researching. Fortunately, I enjoyed pouring over briefs and clicking through Westlaw while trying to decipher the right (or best) answer to the complex legal questions that reached the state’s highest court. But without a doubt, my favorite part of the job was the other two percent of my time—watching oral arguments.

I viewed oral argument as a lawyer’s World Series. The fast-moving discussion seemed to me the ultimate challenge for an attorney, testing his intelligence, his quickness and his understanding of the case. I also enjoyed watching the justices, who poked and prodded at weaknesses with targeted questions. For two years, I watched the action from my spot on the back bench of the courtroom, along with the other law clerks. From this perch, I heard arguments on a variety of issues presented by attorneys with a variety of styles. By comparing the approaches, and with an eye to the ultimate result, I was able to get an idea of what, in my view, lawyers do right and wrong before the Supreme Court. From that experience, I humbly offer a few tips from “the back bench.”

Mind the clock.

Prior to your case being argued, you will receive a letter from the clerk of court, which will inform you, among other things, of the times that have been set for your arguments. Ordinarily, the times will be set as, for example, 10/10/5, meaning 10 minutes for the Appellant or Petitioner, 10 minutes for the Respondent, and five minutes in Reply. Prepare your argument with this time in mind. When you reach the podium to begin your argument, that time will be displayed before you. If the clock runs before you have finished, ask for permission to continue. I never saw the Court deny an attorney additional time to complete his argument, but I have seen judges appear irritated when attorneys have blown through their allotted time without any hesitation. When dealing with a five-person panel, annoy any one of them at your own risk.

Stay focused.

Like any court, the Supreme Court has its traditions. One tradition that sometimes surprises counsel occurs during the first oral argument of the day when a wonderful guy named Jody enters from a side door to serve the justices beverages. Jody will serve the Chief Justice first, then the other justices in order of seniority—a neat rule, but one that mandates a circuitous route around the bench. Don’t be thrown. The justices won’t halt arguments for this ritual, and you shouldn’t either.

Don’t pass notes.

It wasn’t allowed in middle school, and it is not a good idea at the Supreme Court. If you are assisting another attorney who is arguing before the Court, don’t pass a note to the counsel handling arguments while he is at the podium. It makes him look foolish, and it’s just awkward for you. The only exception to this rule is if your co-counsel makes a mistake of fact during his argument. In this situation, a quick note gives him a chance to restore his credibility with the court.

Concede necessary points.

I distinctly remember watching onecase where I was convinced that a lawyer had the winning argument,which he had set forth in his brief. When his argument meandered a bit,one of the justices attempted to bringhim to the point by asking him to concede a relatively minor issue that reflected negatively on his client, but was not fatal to his case. However, the attorney refused to grant the point and, to my dismay, spent the entirety of his remaining time arguing a point he should have conceded, never reaching his winning argument. Don’t fall into this trap and, as you prepare for arguments, consider what points you can safely concede to the Court. In addition to moving the argument along, you can use concessions to buttress your argument. For example, if confronted with a “slippery
slope” issue, tell the justices why they should feel comfortable where you draw the line.

Know the standard of review.

Why try to hit a home run when a base hit will do? In my experience, lawyers typically do a good job addressing the standard of review in their briefs, but then ignore it during oral arguments. If the other side must prove abuse of discretion in order to prevail, make that a central point of your argument. This is particularly true if, as is often the case, the opposing side ignores the standard in its oral arguments and essentially argues that the lower court simply got it wrong. Make it clear that is not enough.

If it’s not preserved, say so.

Again, why make your job harder than it has to be? Preservation rules are important to the Court; if your opponent hasn’t abided by those rules, key on that during arguments. However, do not rest your argument on preservation, and be prepared to explain to the Court why you should win on the merits.

Don’t talk over a justice.

This sounds like an obvious point, but I witnessed many violations of this unspoken rule. You might be making an important point, but it is not worth irritating the people who are deciding your case. Jot your thought on your notepad and come back to it.

Not all questions are hostile.

It is natural to assume that if a justice is asking a question, he or she is attempting to poke holes in your case, but that is not always true. If I had a dollar for every time I saw the Chief Justice shake her head and say, “You can lead a horse to the water, but you can’t make him drink,” I would be wearing nicer suits. Even if a justice agrees with you, he or she might want to make sure of what you’re saying, or might want you to clarify a position for the benefit of the rest of the Court. If you understand that all questions are not hostile, you can answer more intelligently.

Know who wrote the cases.

During my time clerking, it was clear to me that each of the justices takes great pride in the opinions they author. Consequently, if your case implicates or is at odds with recent Supreme Court precedent, you can expect the authoring justice to be quite vocal during oral arguments. Know the case backwards and forwards and expect argument to focus specifically on the case rather than more generally on the issue at hand. Be prepared to explain why the case is distinguishable or (tactfully) why it is wrong.

Present your best argument first.

This is a fundamental principle taught early in law school but one which, for some reason, many attorneys ignore during arguments. Your winning argument should be the center of the discussion, and only after you have effectively conveyed the point or feel you must abandon it should you move on. If you are the Respondent, you should not feel bound to reply to the issues raised by the Petitioner or Appellant in his opening argument. In fact, it can be very effective to address your opponent’s arguments in reverse order, especially if you can do so succinctly.
However you proceed, place the focus on your winning argument, and don’t allow your opponent to control the discussion.

Use your Reply.

Trial lawyers will do anything in order to be allowed to make the final closing argument to a jury. They clearly recognize the importance of getting the “last word” to the jury, so why would you voluntarily pass up the equivalent opportunity in an appellate court? I have seen countless attorneys “waive” the reply argument, and every time I felt it was a serious mistake. Even if you do not feel that you have further points to make, use the chance to briefly reiterate your arguments. While it is true that you run the risk that you will be subjected to further questioning, justices simply are not that easily deterred. On multiple occasions, I witnessed counsel attempt to skip reply, only to be summoned to the podium by a justice to answer a question or two. In short, there is much to be gained and little to be lost by using your reply.

Be prepared for hypotheticals.

Hypotheticals are not just for law school exams anymore. While lawyers are largely concerned only with the case at hand, the justices decide cases with an eye to the precedent the decision will establish. After all, as you are arguing your case, the justices have the files for the next term’s cases sitting on their desks, and they are acutely aware that the day’s decision will soon be applied to a different set of facts. Consequently, you will need to be ready to address the long-term viability of the result you are advocating. One of the fairly recent additions to the Court was frequently ready with a targeted hypothetical that made me glad I was sitting on the back bench rather than standing at the podium.

Don’t be afraid to adapt on the fly.

Sure, you are a smart guy or girl, but so are the folks sitting behind the bench. On a few occasions, I realized that a justice had conjured a legal argument that was dispositive of the case, but one that was not addressed by either side in their case briefs. When the point was raised during oral arguments, counsel was usually hesitant to adopt the position, either due to suspicion or pride. A win is a win. While the Court can’t reverse a case based on an argument you did not raise, it can affirm on any ground appearing in the record. Don’t be afraid to pick up the idea and run with it.

Have fun.

However mundane the case and however empty the courtroom, know that you have a rapt audience on the back bench who cannot wait to be standing where you are.