Supreme court advocacy: acquiring the necessary expertise.

• Date: 22 September 2005
• Author: Frederick, David C.

PREFACE

Advocacy before the Supreme Court of the United States is not for the faint-hearted. The issues are difficult, the cases momentous, the briefing a challenge, and the oral arguments a test of the first order. The Court's decision--whether a unanimous victory, a unanimous loss, or something in between--can feel like an anticlimax after the lawyer has lived through the push leading up to the oral argument, and then survived the argument itself.

The challenges are especially daunting to the first-time or infrequent advocate, who can put heart and soul into a case but still not have a clear idea of how best to present it. Supreme Court advocacy, like most other professional endeavors, gets easier with experience. But the novice can acquire the necessary experience only derivatively, through consultations with lawyers who have appeared before the Court in other cases.

That's where the resources described in this section come into play, for as Justice White used to tell his law clerks, "Two minds are better than one." (1) And it is the rare advocate who can think of everything necessary to win a case. (Indeed, I am still looking forward to meeting the lawyer who can win at the Supreme Court without consulting anyone else.) Talking through the case with a colleague, working collaboratively on the brief, and gauging an audience's reaction to different versions of the oral presentation can be...