Learning (and teaching) from doing.

• Author: Foley, Edward B.
• Position: First Arguments at the Supreme Court of the United States

1. A MENTORING OPPORTUNITY

   Even more special than the opportunity to argue at the Supreme Court is the opportunity to serve as a mentor to junior attorneys while doing so. My background as a law professor sensitized me to the possibility of playing this mentoring role, but the opportunity was made concrete by the litigation team we assembled to prepare for the oral argument.

   Serving as State Solicitor of Ohio while on leave from the University, I was fortunate to have the help of two Assistant Solicitors, David Gormley and Stephen Carney. But these were two experienced appellate litigators, who needed no mentoring and who, indeed, could teach me a thing or two. Their duties on the case were at a higher level. Having had the hands-on responsibility for drafting the briefs, their role in argument prep was mostly strategic and conceptual: what sort of questions we might expect from the Court and how best to handle them.

   The task of tracking down answers to a myriad of research questions fell to two first-year attorneys in our office, Dave Patton and Andy Bowers, who had just finished law school at Ohio State, where I was a professor. Naturally, then, I felt a special affinity for these eager young lawyers, especially as they exhibited a model can-do attitude, willing to share my philosophy of "no stone should be left unturned" as we prepared for argument. The bond we developed quickly felt similar to the bond that sometimes develops between research assistants and a professor, and so I began to see our shared preparation experience as a kind of teaching opportunity.

2. A LESSON ABOUT THE VALUE OF HARD WORK

   In getting ready for the argument, there was a surprising amount of research for Dave and Andy to do. Surprising, especially to them as junior attorneys, because our team had already sent four briefs to the Supreme Court (petition, petition-stage reply, merits brief, and merits-stage reply), not to mention all our office's briefing of the case in the district court and court of appeals. What more basic legal research could there possibly be left to do, simply to get ready for an oral argument?

   Habeas cases generally are procedurally complex, and ours was particularly so. A number of procedural wrinkles we had been able to confine to footnotes in our briefs. But now they loomed large, as potentially unanswered issues or obstacles, should the Court be interested in exploring them at oral argument. We were even concerned that the Court might choose to "DIG" the case (i.e., Dismiss it as Improvidently Granted), if it found some of the procedural problems intractable. As we were preparing for oral argument, we felt like we were tiptoeing through a procedural minefield, with each twist and turn presenting a new research question for Dave or Andy to address.

   Indeed, in his own article about this experience (written for an Ohio State alumni publication), Dave wrote: "The most striking aspect of the whole experience was the staggering amount of preparation." (1) While our need for additional research at this late stage of the process might have been unusually large, the fact that argument preparation generally takes substantial time and effort even after completion of briefing is a common phenomenon in my experience. As David Frederick has commented in his superb new book, Supreme Court and Appellate Advocacy:

   An advocate should spend time conducting legal research between the filing of briefs and the oral argument. Sometimes that research runs to ground issues intentionally left open in the brief; sometimes to close holes that did not seem so wide or significant when writing the brief but now seem much more significant. (2) Thus, in my role as mentor to Dave and Andy, my first order of business was to have them experience the reality of what General William Suter, the Clerk of the Court, has advised: "[T]here are three secrets for arguing well in the Supreme Court: preparation, preparation, and still more preparation." (3) Given Dave's observation to his fellow alums about the "staggering"...