First argument impressions of the Supreme Court.

• Author: Riback, Stuart M.
• Position: First Arguments at the Supreme Court of the United States

For a lawyer who only occasionally argues an appeal the most disconcerting thing about the Supreme Court is that it is truly a court of last instance: It cannot be reversed on appeal. I never realized before my first appearance at the Supreme Court just how comforting it is in day-to-day litigation to know that, although I always want to win on every issue, there is someplace to seek a better result if things don't go my way. It had never occurred to me that I relied on this premise, but when I got to the Supreme Court, its absence loomed large. This was a sobering experience, especially at the end of a road that had until then been very successful.

THE CERT-WORTHY CASE

After a weeklong trial, my firm's client, Samara Brothers, had established to the jury's satisfaction that the defendant, WalMart, had either copied or connived in copying from Samara's line of children's clothing. On appeal, the Second Circuit upheld all of Samara's copyright claims as well most of its trade dress claims, with the result that Samara's recovery after appeal was about ninety-five percent of the district court judgment. So after a smashing victory at trial and a ruling by the Second Circuit that resulted in my client keeping almost all the money the jury had awarded, I was reasonably sure that the case was all but over.

True, the Second Circuit had split two-to-one, and the dissenter was Judge Newman--possibly the most well-respected judge on the Second Circuit bench at the time. And the adversary was Wal-Mart, which had a well-deserved reputation of never surrendering, ever, and fighting most cases to the bitter end, almost irrespective of the merits. But it is conventional wisdom that motions for rehearing are almost never granted, that the Second Circuit grants en banc rehearings about as often as the planets align, and that the Supreme Court grants certiorari even more rarely than that. So my partners and I were relatively optimistic.

Little did we know.

Wal-Mart moved for rehearing and for en banc review, as we expected. The motion was denied (also as we expected), and Wal-Mart then filed a cert petition asking the Court to hear five different issues, which amounted to pretty much all those on which Samara had won below. It seemed highly unlikely the Court would consider that sort of petition. I drafted and filed an opposition to cert, and then put the matter out of my mind.

I didn't think about the case again until the Friday before the first Monday in October, when I called the Supreme Court Clerk's office to ask how I could go about ascertaining the disposition of the cert petition once the Court convened on Monday. I was told to call on Monday at about 11:00. So I did. And I was dumbfounded when I learned that the Court had granted cert. What is more, the Court had formulated its own question that it wanted the parties to address--one that differed from those the parties had characterized as the issues in the case. (1)

I was not surprised that it was the trade dress issue that the Supreme Court wanted us to address. In retrospect, perhaps we should have realized that it was a good candidate for the Supreme Court. First, there was uncertainty in the circuits, several of which had been wrestling mightily to make sense of the Supreme Court's 1992 Two Pesos (2) decision in cases where the claimed trade dress was in the appearance of the item rather than in its packaging. They had enunciated a number of different standards that, upon analysis, seemed to me to be not that dissimilar, though each circuit formulated its standard in different language. And there had not been all that much opportunity for case law development, because only a bit over six years had elapsed between Two Pesos and the Second Circuit ruling in Samara. But the lower court cases and the scholarly commentary were increasingly noting splits of authority and differing standards, and apparently the Supreme Court took these mentions seriously. Second, although the facts of the case had seemed to us to be hopelessly tangled, the facts did not seem the least bit complicated to the Supreme Court because, after all, there was a jury verdict. (Two Pesos was an appeal after a jury verdict as well.)

One thing I could not understand, though--and still don't--is why the Supreme Court ordered what it called "expedited" briefing. It turns out that expedited briefing is actually quite leisurely by lower court standards. The Court directed Wal-Mart to file its brief in about six weeks. We would have something less than five weeks to file ours, and WalMart's reply was due three weeks after that. Oral argument was set for January 19, 2000, about ten days after the last brief was due.

GETTING A FEEL FOR THE COURT

I had never been in the Supreme Court before. I had not appeared there as an attorney, and I had not even been in the courtroom. I had to apply for admission to the Supreme Court bar in order to sign our opposition to cert. I had only a vague idea of what sort of merits brief the Supreme Court expected, what kinds of arguments each of the justices would find convincing or what sorts of authorities (besides Supreme Court opinions) the Court would deem persuasive. Clearly I would need help.

I initially turned to an attorney I knew from when we had both been young associates in our first law firm jobs. He had clerked in the Second Circuit and Supreme Court, and had spent a sizable stint in the Solicitor General's office. Now a partner in the Washington office of a national law firm, he seemed genuinely happy to learn that I would be appearing in the Supreme Court, and was pleased to offer his assistance. In the course of our conversation I also learned a few very interesting facts about the small coterie of attorneys who make a large part of their living practicing before the nation's highest court. For one thing, it's a very competitive practice. The Supreme Court's caseload has shrunk to the point that getting an opportunity to argue before the Justices is increasingly considered a rare prize. Yes, there is still a lot of business in writing cert petitions and oppositions to cert, but that is hardly as sexy or as interesting as standing at the lectern fielding questions from the Justices. So I was interested to learn that certain firms with Supreme Court expertise offer a lower price to the client if the firm's Supreme Court specialist does the argument. Simply working on the papers without doing the argument costs more. Apparently, the prestige and the thrill of an oral argument in the Supreme Court are, to some firms, worth several thousand dollars.

In the end, I could not engage this attorney to help me because his firm had done some work for Wal-Mart. (I saw no reason to go through the process of getting the conflict waived; it was much easier and quicker to go elsewhere.) We were referred to a fine appellate lawyer at Howrey & Simon, Mark Levy, who had also spent several years in the Solicitor General's office and had argued some fifteen cases in the Supreme Court.

I met Mark in person for the first time in early November, when I made a trip to Washington to watch the Court in action. I thought it would be important, before preparing my argument, to get a feel for the courtroom, to watch how the Justices reacted to different advocates on different issues, and to see which Justices were aggressive questioners, which Justices probed most deeply, and which areas of inquiry seemed most interesting to which Justices. Making the trip in early November was dictated by the calendar--it was the only time after cert was granted that the Court was in session and I wouldn't be busy working on writing the brief. So on the afternoon of November 1, 1999, I got on the Metroliner in New York, and I arrived at the Supreme Court bright and early the next day to watch the arguments.

I discovered that attorneys who are members of the Supreme Court bar do not have to wait on line to get one of the relatively few seats that are available to the general public. Instead, a few rows of seats are set aside just for members of the Supreme Court bar. These seats are immediately behind the counsel tables, so I had a pretty good view of the Justices and the attorneys. The best view, of course, is from the lectern: It is very, very close to the Justices--so close that...