Customer Reviews

Supreme Court and Appellate Advocacy (Practition Treatise Series)

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This book is written specifically for any advocate arguing in the U.S. Supreme Court or federal and state courts of appeal. Written by a skillful advocate who has argued 12 cases in the U.S. Supreme Court and appeared numerous times in various courts of appeal, this book is full of helpful advice combined with nearly 100 examples from actual U.S. Supreme Court and appellate cases.

The author is a former Assistant to the Solicitor General and represented the United States in the U.S. Court of Appeals for the District of Columbia Circuit in the case of United States v. Microsoft Corporation. Various excerpts from that case, as well as many other well-known U.S. Supreme Court cases, appear liberally throughout the book.

The book begins with a fascinating history of oral argument in the U.S. Supreme Court. In early cases, oral argument often consumed several days in important cases and there was no limit to the number of attorneys for each side that were allowed to present the case. For example, in McCulloch v. Maryland, which was argued in 1819, six lawyers (including Daniel Webster), presented oral arguments. The case began on February 22nd and didn't end until February 27th, a Saturday afternoon.

In 1833, the Supreme Court first allowed the filing of "printed arguments" if counsel "shall choose so to submit the same." The ability to file written briefs generally shortened the time needed for oral argument in the Supreme Court because the attorneys no longer had to recite the complete history of the case. Even so, some highly publicized cases, such as the Amistad case argued in 1841 by John Quincy Adams, still took an extraordinary amount of time by today's standards -- 8 days.

In the twentieth century the time allowed for oral argument gradually declined to the current one half hour for each side due to the option, and then the requirement, that all parties file written briefs. This rule meant that the advocate no longer had to engage in extended readings of authorities or the extensive recitation of facts that had previously caused arguments in cases to go on for days.
The author believes that proper preparation of oral argument today starts with writing the brief. Whenever possible, the person arguing the case should participate in writing the brief as a way to thoroughly learn a case. The author quotes General William Suter, the current Clerk of the U.S. Supreme Court, as saying there are three secrets for arguing well: "preparation, preparation, and still more preparation."

Not content to just point out that diligent preparation is necessary, the author gives concrete examples and outlines a step-by-step analysis of the components needed to prepare and present a convincing oral argument. He informs the reader that most lawyers in the Solicitor General's Office have less than 2 weeks to prepare for oral argument in the Supreme Court. Seasoned private practice attorneys, on the other hand, often begin preparations as much as five weeks before the argument.

The author provides a comprehensive "to do" list and a suggested list of items an attorney should master in preparation for oral argument. A lawyer arguing a case for the Solicitor General's office generally participates in an informal moot court one week before the argument - with a formal moot court two or three days later.

The author cautions that extreme care should be given to the opening. He describes in detail what should be in an effective opening and provides numerous examples to emulate.

"In general, an opening should begin with a sentence stating the party's position or placing the issue presented by the case into context. The advocate should generally try to condense an argument into a discrete number of points. After an introductory sentence, the opening should signpost for the court the two to four points the advocate hope to make, using phrases the advocate hopes will be memorable to the court. The signposting sentences should contain certain "mantra' phrases - those phrases that encapsulate in sound-byte form the points the advocate will try to make during the argument. The elaboration of those succinct points then takes up the remaining sentences of the opening."

This book pulls no punches as it relates to effective advocacy; he cites both good and poor examples of oral arguments. The appendix has a variety of both model and ineffective openings, examples of mid-argument advocacy techniques, including use of a precedent, segues, use of analogies, handling hypothetical questions and others.

One of the best sections of the book is on dealing with the types of questions commonly asked during oral argument, including such things as background questions, questions about the scope of the rule of the case and its implications. A memorable example of not limiting the scope of the rule being advocated was the position taken by Arkansas Attorney General J. Winston Bryant in the case of Wilson v. Arkansas. In that case, the state argued that officers were not constitutionally required to knock and announced their presence before gaining entry to execute a warrant.

After a series of hostile questions from the bench about the State's position that knock and announce was not categorically required, Attorney General Bryant's likelihood of success with this sweeping argument was made clear:

QUESTION: And there's a very long tradition here that has to be taken into account, and the fact that the officers don't knock and announce certainly at a minimum ought to be a factor in what's reasonable.
GENERAL BRYANT: That is essentially the U.S. Government's position, and that is the State's fall back position, that if the Court does not see fit to announce a categorical rule to protect the police officers in the instance, that a reasonable fall back would be the position by the Solicitor [General], in that knock and announce would be a part of the reasonableness test under the Fourth Amendment.
QUESTION: Time to fall back, General Bryant, I think.

Another excellent chapter deals with common mistakes in oral arguments, including examples of errors in speaking style, substance, decorum and errors in citing materials and handling the court. Again, numerous examples of best practices are provided and the author provides plenty of guidance on avoidable errors.

Though primarily geared towards advocates arguing in the Supreme Court of the United States, this book would be of clear benefit to any attorney in Maine who argues even a single case before our Law Court. Filled with practical advice, numerous illustrations and seasoned insights, this book is sure to provide inspiration and guidance to all lawyers arguing before any appellate court.

I read this and found it enjoyable, even entertaining at times, as well as informative. Reading the chosen examples (excerpts from real Supreme Court arguments chosen and presented to exemplify particularly good and bad speech was all of the above.