10
Up Close and Personal with Justice Roberts
Last month I observed arguments at the U. S. Supreme Court. I had occasion to help two clients prepare for arguments there in 2010, so I was eager to see the action first hand. The day I attended, there were two different cases in which five lawyers appeared; one of them acting United States Solicitor General Neal Katyal. Three other advocates had appeared in front of the court before, and one was making her first argument.
The level of advocacy was high that day. At its best, lawyers were engaged in what sounded like urgent but friendly—and spirited—conversation. Occasionally each advocate stopped to think, consider, and regroup, but only for a few seconds—no more. The clarity, facts on the tips of tongues, and general command of English was quite respectable.
I don’t mean to damn with faint praise. The stakes are high in one of the most famous courtrooms anywhere. Just the distraction of talking to nine people who are, for all intents and purposes, celebrities, is significant. The level of security, the crush of spectators, the famous and near-famous in the gallery, all make the room feel crowded with urgency and importance. The size of the courtroom contributes to that feeling—it is smaller than you’d imagine. It seems that Chief Justice Roberts could easily lean forward to shake hands with the lawyer at the lectern. He can see the perspiring brow, the trembling fingers, and read any discomfort as an advocate fumbles with papers or hesitates (too long?) over an answer.
So can the rest of the justices, of course, but Roberts is a former Supreme Court advocate, increasing the pressure on the lawyer a few feet away. He knows if preparation has been adequate. There is no faking it in front of the finely-sharpened linguistic knives of the Supreme Court, where Roberts, flanked by Justice Kagan, the Solicitor General until her appointment to the Court last year, sit as stern reminders that the level of argument should be outstanding. One verbal gaffe, one moment of hesitation, one concession instantly regretted, and it could feel as if our entire justice system was slightly besmirched by one’s performance.
As I watched and listened, I was as interested in how assiduously each attorney had prepared as I was in the moment at hand. Experience counts, of course, but what practice lies behind that?
I heard an intriguing rumor last autumn when I taught an appellate advocacy training program: when Roberts was at Hogan & Hartson, the policy was to have 30 moots prior to an appearance before the Court. (Can anyone from a Supreme Court practice confirm a number this high?) Vanity Fair’s March, 2007 article about Hamden v. Rumsfeld states that Neal Katyal mooted that case 15 times. Fifteen sounds about right to me for a new advocate. By the fifteenth, you would be settling into a comfortable routine. Thirty is a luxury. That would be Major League, world-class preparation.
In a series examining the Roberts court last year, the New York Times explored a ”new breed” of lawyer http://www.nytimes.com/2010/10/10/us/10lawyers.html?ref=johngjrroberts that specializes in the high-stakes arguments required at the court. How does this new breed routinely prepare? How can preparation be the most productive? What kind of practice under pressure will lead to the best arguments?
For more about the current Solicitor General: http://www.whorunsgov.com/Profiles/Neal_Katyal
