By Allison Hight
U-M Law
“I’ll start by saying that appellate advocacy is a really good way to make a living if you have a short attention span,” Paul Clement said during his recent talk at Michigan Law. “There are a lot of areas of the law where you make your way by learning more about the area than anyone else and hold yourself out as an expert. Appellate advocacy is almost on the opposite extreme.”
Clement, a former solicitor general and a nationally recognized litigator who has argued more than 80 cases in front of the Supreme Court of the United States, came to the Law School to kick off Michigan Law’s 92nd Campbell Moot Court competition. As a government lawyer and in private practice, Clement has argued more cases before the Supreme Court since 2000 than any other attorney. Michigan Supreme Court Justice Joan Larsen, also an adjunct professor at Michigan Law, introduced Clement, calling him “the most gifted advocate of his generation” as well as “a regular guy.”
Clement, a partner at Bancroft PLLC, described the practice of appellate advocacy in general, comparing the profession to “a translation service.” The judges hearing a case may not know a great deal about the specific area of law that it addresses, he explained, and experts on that area are not always the best people to explain it to them.
“Saying trust me, I really know my stuff? That doesn’t work,” Clement said. “I think one of the advantages of appellate advocates is that they’re generalists, too. They speak the same language as the judge.”
Clement went on to describe how experts and generalists work together on a case before it goes to court, explaining the issues back and forth to each other to reach the right level of simplicity. His first explanation is usually too simple, he said, “but then you try again, essentially a back and forth where my co-counsel is trying to say that it’s more complicated than that, and I’m trying to say that it can't be that complicated.”
Clement explained how arguing in front of the Supreme Court is different from lower courts. “One big difference is that the Supreme Court justices can really do whatever they want. They’re not bound by precedent if they don’t want to be.”
He stressed that one of the key aspects to being a successful advocate is to keep each of the justices’ legal and personal ideologies in mind. “You kind of have to go in knowing what they agree with and what they don’t and pitch your case accordingly. Because of the Justices’ well-established views on the law, the case can really end up coming down to one or two justices. You have to address that reality.”
As an illustration, Clement described his experience in one of the cases that he argued in front of the Supreme Court, Tennessee v. Lane, a 2004 case that addressed whether disallowing access to upper floors of a courthouse to people who are disabled was a denial of public services in violation of the Americans with Disabilities Act.
“When we were thinking about this issue, the only better context than the courtroom we could think of to bring Justice [Sandra Day] O’Connor to our side in the case was voting booths,” Clement said. “If there’s one thing that would be more sympathetic than access to a courtroom, it was access to voting booths.”
He said that he was able to address this issue through an unexpected avenue. “Usually when you have justices hostile to you, you’re trying to answer their questions directly and get off the topic, but at one point in the argument, Justice [Antonin] Scalia, who wasn’t trying to help me, started saying, ‘Well, if you’re right about this, this position would apply to voting booths.’ I said, ‘That's absolutely right, Justice Scalia. Let’s talk about that as long as you'd like to.’ Because the audience wasn’t Justice Scalia. He wasn’t going to vote for me. The audience was Justice O’Connor.”
Clement ended by addressing the students competing in this year’s Campbell Moot Court competition. “What I think makes moot court really effective and helpful is that it gets you focusing on what I think is certainly the most important thing for appellate advocacy: What is your theory of the case? Why is it that your side wins? Why should you win? What is the principle of law that the court should adopt and if they adopt, you win?"
He encouraged all of the audience members to participate in the competition. “It’s something that I think you’ll really enjoy,” he said. “The reality is that I couldn’t do what I do unless I thought that oral argument made a difference.”
Reprinted with permission from U-M Law
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