A clinic's place in the Supreme Court bar.

• Author: Fisher, Jeffrey L.
• Position: II. Clinical Opportunities B. Operational Considerations 1. Expertise Concerning the Court B. Opposing Certiorari through Conclusion, with footnotes, p. 170-201

b. Opposing certiorari

A clinic also can and should use its expertise to assist litigants and local counsel in defeating opponents' petitions for certiorari. As Lazarus recently explained, (107) a brief in opposition to certiorari is one of the oddest--sometimes utterly counterintuitive--documents a litigator can have to write. Having just won in the court below, the brief must, among other things, downplay the importance of the victory, minimize its impact, make the legal issues sound dull, emphasize quirks in the case, and even point out ways that the petitioner may still get what it wants. The best arguments in these respects usually have little or nothing to do with the merits. A clinic can help local counsel navigate this process and increase the odds that certiorari will be denied.

This work can be especially important because defeating a certiorari petition is sometimes an individual litigant's only real hope of preserving his or her victory--and it is almost always a litigant's best hope of doing so. Recall that from October Term 2004 through October Term 2010, individual plaintiffs in this sample won as respondents on the merits only 22.6% of the time. 108 Criminal defendants won as respondents on the merits only 18.8% of the time. (109) By helping more of these parties defeat review in the first place, a clinic can have a positive impact on its clients' cases. Beyond that, the clinic can also truly aid the Court by helping it screen out cases that appear on the surface to be worthy of plenary review but that actually are flawed in some way, or are less practically or jurisprudentially significant than meets the eye.

c. Litigating on the merits

Finally, a clinic has an opportunity to deploy its expertise in order to help clients prevail (or at least to lose in the least harmful way (110)) on the merits. The statistics above show that from October Term 2004 through October Term 2010, individuals represented by Supreme Court specialists appear to prevail considerably more often than those represented by nonspecialists. (111)

These statistics even go so far as to support McGuire's assertion fourteen years ago that the Solicitor General is indeed "merely one of many successful lawyers who appear before the Court." (112) When facing the Solicitor General's office as counsel for the petitioner, Supreme Court specialists prevailed--as noted above--65.2% of the time among these cases, almost exactly the average rate of success of all petitioners in the Supreme Court overall (about 65%). (113) In other words, when an individual has specialist counsel, it truly levels the playing field on the merits. (114)

2. Resources

   A Supreme Court clinic presumably will have deep resources--both in terms of human energy and in terms of financial support from a law school. Those resources can assist clients at both the certiorari and merits stages.

   a. Certiorari stage

   Informational deficits are not the only kind of "market failure" that can impede the certiorari process. Financial deficits also cause a client not to seek certiorari in a certworthy case. Imagine a client who is suing for $10,000. The costs alone of printing briefs to file in the Supreme Court can approach that amount; the costs of paying for a lawyer's time would dwarf it. A prominent Supreme Court specialist at a Washington, D.C. firm, for example, recently charged a business client $1.1 million for handling the certiorari and merits stages of a case. (115) Thus, even if a client were sure that the Court would take her case and that she would win, she nonetheless might reasonably decide not to file for certiorari.

   Some individual litigants, of course, do not have to make such financial calculations. Many plaintiffs have contingency agreements with their attorneys or are protected by fee-shifting statutes (116) from paying legal fees. Criminal defendants often have appointed lawyers who are paid entirely by the government. But that does not mean that these litigants are immune from the pressures of cost-benefit analysis. It simply means that the litigants feel those pressures through their lawyers' resource allocation decisions. That is, many lawyers-given their own financial imperatives--will avoid work that they predict is unlikely to produce dividends, either in a financial or professional sense.

   Before jumping to the conclusion that such lawyers are shirking their duties to their clients, or to the public as members of the bar, consider the example of the first Supreme Court case that I handled, Crawford v. Washington. (117) In the Washington State appellate courts, Michael Crawford was represented by an appointed lawyer who, under the standard contract with the State for criminal appeals, earned $2000 for each appeal he handled. This fee was intended to cover not only proceedings in the Washington Court of Appeals but also any that occurred in the Washington Supreme Court. The lawyer had no ability to recoup any extra funds by litigating the case in U.S. Supreme Court.

   After Crawford lost 9-0 in the Washington Supreme Court, (118) I called his lawyer and asked whether he had any plans to seek certiorari. He did not, even though the Washington Supreme Court's holding implicated a deep conflict concerning how to apply the Confrontation Clause's then-prevailing "reliability" framework, (119) and three sitting Supreme Court Justices had recently suggested that the Court's reliability-based approach to the Confrontation Clause should itself be reconsidered. (120) The investment required to litigate these issues in a single case in the Supreme Court would have crowded out any hope of the lawyer's taking enough appointments to sustain a living at $2000 per case.

   A clinic can solve cost-benefit impediments to certiorari. Because a clinic receives its funding from a law school, and because all of its work is done on a pro bono basis, it can seek certiorari in a civil case in which the cost of hiring counsel to litigate the matter would exceed any expected recovery. In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, (121) for example, the Stanford Clinic represented a plaintiff in a case involving the Fair Debt Collection Practices Act who claimed that her damages totaled $1000. (122) In Sossamon v. Texas, another Stanford Clinic client likewise sought modest damages for violations of the Religious Land Use and Institutionalized Persons Act. (123) Both cases involved frequently recurring issues that affected a substantial number of people across the country. But in both cases, it cost more than the individual plaintiffs were seeking in damages simply to pay the printing costs for the briefs in their cases.

   b. Merits stage

   Surely one reason that Supreme Court specialists tend to be more successful in the Court, wholly apart from the expertise they can deliver, is the depth of resources that specialists tend to have. Pamela Harris, the former Executive Director of the Georgetown Supreme Court Institute and a former attorney in a law firm's Supreme Court practice, told me once that she thought it took, on average, about one month of solid, full-time work to write an adequate merits brief. That sounds about right to me.

   If anything, the estimate strikes me as low. Even if one has written the certiorari petition and litigated a case below, writing a merits brief for the Court is an enormously complicated task. One needs to master not only all of the law in the specific subject matter at issue, but also needs to mine the Court's jurisprudence in general for parallel situations and related issues. One may need to compile an exhaustive legislative history of a statute or research the Framers' intent regarding a constitutional provision. One needs to talk to experts across the country about how various laws or proposed rules work on the ground. One needs to draft, redraft, edit, and edit again. On top of all of that, one often needs to manage a significant amicus effort. Instead of taking all of one lawyer's time for a month, therefore, it may well require several people's full-time attention for several weeks in order to handle the briefing stage of a merits case. Properly preparing for oral argument takes the better part of several weeks as well, especially if counsel has not previously argued in the Court.

   The reality is that no matter how skilled a solo practitioner or a member of a small firm or public interest office may be, such a lawyer may simply lack the time and resources to commit to the merits stage of a case. Over the several months during which a merits case is active, for example, such a lawyer may have to write several other briefs or even try several cases. And even if the lawyer (or an entire small firm) could put her entire practice virtually on hold for those several months, doing so might jeopardize the individual's (or firm's) solvency. A clinic serves the public interest by providing resources to litigants in such cases.

3. Substantive expertise

   In addition to providing expertise concerning the Court and resources, a clinic can also offer substantive expertise to clients concerning the field of law at issue in their cases. It is certainly true, as noted above, that one reason that Supreme Court specialists are successful in the Court is because they tend, to some degree, to be substantive generalists--just like the members of the Court themselves. (124) At the same time, however, some specialists are successful in the Court in part because they are experts in particular areas of law. The Solicitor General's office generally classifies its deputies according to areas of substantive expertise. Experts exist on the private side of the ledger, too. (125) When such lawyers combine expertise concerning the Court with expertise in a certain field, they are able not only to craft legal arguments and strategies that appeal to the Court as generalists, but they are able to back them up with reputations for a deep understanding of how...