Advocacy before the United States Supreme Court.

• Author: Jackson, Robert H.

The invitation to deliver this lecture is a signal honor, and the temptation is to respond with a discourse upon some tempestuous issue of world-wide reverberations. But it will encounter less competition and be more useful to the profession to choose a workaday subject on which I have some experience to support my opinions and you have personal experience to warrant criticising them. Let us consider together the problems which confront a lawyer when his case reaches its journey's end in the Supreme Court of the United States.

More then ten years ago, Mr. John W. Davis, in a wise and stimulating lecture on "The Argument of an Appeal," shared with our profession the lessons of his own rich experience. He suggested, however, that such a lecture should come from a judge--from one who is to be persuaded, rather than from an advocate. With characteristic felicity, he said: "Who would listen to a fisherman's weary discourse on fly-casting ... if the fish himself could be induced to give his views on the most effective method of approach?" (1) I cannot add to the available learning on this subject. (2) I can only offer some meditations by one of the fish.

Let me confess that, when dangling bait before judges, I have not always practiced what I now preach. Many lessons that I pass on to you were learned the hard way in the years when I was intensively occupied with presentation of government litigations to the Court. And if I appear to overrate trifles, remember that a multitude of small perfections help to set mastery of the art of advocacy apart from its counterfeit--mere forensic fluency.

Is ORAL ARGUMENT DECISIVE?

Lawyers sometimes question the value of the relatively short oral argument permitted in the Nation's highest Court. They ask whether it is not a vestigial formality with little effect on the result. In earlier times, with few cases on its docket, the Court could and did hear arguments that lasted for days from such advocates as Webster, Pinkney, and Luther Martin. Over the years the time allotted for hearing has been shortened, but its importance has not diminished. The significance of the trend is that the shorter the time, the more precious is each minute.

I think the Justices would answer unanimously that now, as traditionally, they rely heavily on oral presentations. Most of them form at least a tentative conclusion from it in a large percentage of the cases. This is not to say that decisions are wholly at the peril of first impressions. Indeed, deliberation never ceases and there is no final commitment until decision actually is announced. It is a common experience that a Justice is assigned to write an opinion for the Court in accordance with a view he expressed in conference, only to find from more intensive study that it was mistaken. In such circumstances, an inadequate argument would have lost the case, except that the writing Justice rescues it. Even then, his change of position may not always be persuasive with his colleagues and loss of a single vote may be decisive. The bar must make its preparations for oral argument on the principle that it is always of the highest, and often of controlling, importance.

WHO SHOULD PRESENT THE ARGUMENT

If my experiences at the bar and on the bench unite in dictating one imperative, it is: Never divide between two or more counsel the argument on behalf of a single interest. Sometimes conflicting interests are joined on one side and division is compelled, but otherwise it should not be risked.

When two lawyers undertake to share a single presentation, their two arguments at best will be somewhat overlapping, repetitious and incomplete and, at worst, contradictory, inconsistent and confusing. I recall one misadventure in division in which I was to open the case and expound the statute involved, while counsel for a government agency was to follow and explain the agency's regulations. This seemed a natural place to sunder the argument. But the Court perversely refused to honor the division. So long as I was on my feet, the Justices were intensely interested in the regulations, which I had not expected to discuss. By the time my associate took over, they had developed a lively interest in the statute, which was not his part of the case. No counsel should be permitted to take the floor in any case who is not willing to master and able to represent every aspect of it. If I had my way, the Court rules would permit only one counsel to argue for a single interest. But while my colleagues think such a rule would be too drastic, I think they all agree that an argument almost invariably is less helpful to us for being parceled out to several counsel.

Selection of leading counsel often receives a consideration after the case arrives at the high Court that would have been more rewarding before the trial. But when the case is docketed in Supreme Court, the question is, shall counsel who conducted the case below conduct its final review? If not, who shall be brought in?

Convincing presentations often are made by little-known lawyers who have lived with the case through all courts. However, some lawyers, effective in trial work, are not temperamentally adapted to less dramatic appellate work. And sometimes the trial lawyer cannot forego bickering over petty issues which are no longer relevant to aspects of the case reviewable by the Supreme Court. When the trial attorney lacks dispassionate judgment as to what is important on appeal, a fresh and detached mind is likely to be more effective.

No lawyer, otherwise fairly equipped for his profession, need hesitate to argue his own case in Supreme Court merely because he has not appeared in that Court before. If he will conform his arguments to the nature of its review and his preparation to the habits of the Court, he has some advantages over a lawyer brought in at that late stage. Sometimes even his handicap will work out to his advantage. Some years ago, a country lawyer arguing a tax case gleaned from baffling questions from the bench that his case was not going well. He closed by saying, "I hope you will agree with me, because if you don't, I certainly am in wrong with my best client." Such a plea is not enough to win a decision, but its realism would assure a most sympathetic heating from any judge who can still remember what it is to face and explain to a defeated client.

Many litigants, and not a few lawyers, think it is some advantage to have their case sponsored by a widely known legal reputation. If such counsel is selected because of his professional qualifications, I have nothing to say against that. Experience before the Supreme Court is valuable, as is experience in any art. One who is at ease in its presence, familiar with its practice, and aware of its more recent decisions and divisions, holds some advantage over the stranger to such matters. But it is a grave mistake to choose counsel for some supposed influence or the enchantment of political reputation, and above all, avoid the lawyer who thinks he is so impressively eminent that he need give no time to preparation except while he is on a plane going to Washington. Believe me when I say that what impresses the Court is a lawyer's argument, not his eminence.

On your first appearance before the Court, do not waste your time, or ours, telling us so. We are likely to discover for ourselves that you are a novice but will think none the less of you for it. Every famous lawyer had his first day at our bar and perhaps a sad one. It is not ingratiating to tell us you think it is an overwhelming honor to appear, for we think of the case as the important thing before us, not the counsel. Some attorneys use time to thank us for granting the review, or for listening to their argument. Those are not intended as favors and it is good taste to accept them as routine performance of duty. Be respectful, of course, but also be self-respectful, and neither disparage yourself nor flatter the Justices. We think well enough of ourselves already.

The time may come when you will be sought out to argue a case for other lawyers. In that event, you should consider whether it is not due yourself to insist on full responsibility for its presentation. Divided command is as disastrous to a litigation as to a military campaign. Either you will be in control of the litigation or someone else will be in control of your professional reputation. Some of the wisest leaders of the bar decline to participate in a case, even with most amiable and reputable associates, unless they are given undivided command.

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