For the sake of argument Attorneys discuss standing before the U.S. Supreme Court

By Steve Thorpe

Legal News

What's it like to take your case to the highest court in the land? Aspiring attorneys got a chance to find out in the panel discussion "A View From the Podium: Arguing Before the U.S. Supreme Court."

The law students, perhaps expecting glitz and glamour, got a real-world cold plunge when the first panelist to speak, attorney Valerie Newman, said, "I felt like the ball between the big cats and they're just batting you around. It's a significant accomplishment in anyone's career, but I think I would die if I had to go a second time."

Panelist Elizabeth Jacobs, on the other hand, said, "I understand what Val's saying, but I loved every single minute."

The Michigan Lawyer Chapter and the University of Detroit-Mercy School of Law Student Chapter of the American Constitution Society presented the program on Thursday, Jan. 19, at the school. Law students heard first-hand accounts from the presenters of arguing before the highest court in the land and were able to ask questions.

All four of the panelists have argued at least one case at the Supreme Court level.

Newman argued Lafter v. Cooper, determining whether a defendant who rejects a plea agreement based on deficient advice from counsel can have a conviction overturned because of that and, if so, what is the proper remedy?

Jacobs argued Howes v. Fields, examining whether Miranda warnings must be provided to inmates when they're being questioned about matters unrelated to their incarceration.

Marla McCowan argued Renico v. Lett, reversing the Sixth Circuit to find that the Michigan Supreme Court had not acted unreasonably in denying relief on double jeopardy grounds.

Peter Van Hoek argued Michigan v. Bryant, finding that a statement by a wounded crime victim identifying the shooter is non-testimonial and can be admitted at trial because the police interrogation was to deal with an ongoing emergency and, thus, did not violate the Confrontation Clause.

All four panelists agreed on the importance of preparation. Painstaking research, writing, editing and mock arguments go into a single appearance in the court.

"Just to write the brief is hundreds of hours of research, writing, editing, rewriting, having other people read your work and rip it apart," said Newman. "Dozens and dozens of drafts and then you do hours of mock orals. You finally get before the court and then you barely get to say a word."

Because of the high profile of the U.S. Supreme Court, in some ways there is better access to needed information.

"It's wide open in terms of opportunity to prepare," Jacobs said. "Go to They have all of the briefs available within minutes of their presentation. Justice Ginsberg was still reading a recent decision and I was already printing it out on my computer."

There are some who will encourage you not to prepare at all.

"I immediately began getting calls from the big law clinics like the one at Harvard. I got more than nine calls in an hour," said McCowan. "They say, in not so subtle terms, there's no way you're qualified to do this. You're just a regular peon, so you can leave it to us. In the end I thought 'I know my client. I've been on this for years.' My boss gave me a pep talk and said, 'You can do this. No one else is going to have his voice.'

In addition to more conventional preparation, Van Hoek recommended some books to read for a better understanding of the court.

"I recommend that anyone who finds themselves about to argue in the Supreme Court reads a couple of very important books. The first is 'Making Your Case,' by Justice Scalia about how to be successful in the court," Van Hoek said. "The book I wish I had read before I argued is 'The Nine,' by Jeffrey Toobin. It's basically an inside story of how the Supreme Court works. For example, you learn that the justices don't talk much to each other outside of court. The time they talk to each other is oral arguments. They're not so much talking to you as the attorney as they're making statements of their position to gauge the reaction of the other justices."

Van Hoek also valued the insight the books gave him into the arcane and borderline superstitious practices of the institution.

"There are a lot of quirky traditions in the court, like 'Don't ever look at the clock over the Chief Justice's head.' "

Speaking of the justices themselves, another factor the panel stressed was "know your audience." Which justice or justices are you arguing to? Who's already on your side? Who's a lost cause? Who's the swing vote?

"Rather than writing briefs for anonymous judges or panels that might or might not contain judges who might favor your argument, you know exactly who you'll be facing," Jacobs said. "From the beginning, you start strategizing who you're going to appeal to. I know that the guy in the middle is the one I want to appeal to, in this case Justice Kennedy. I get the brief of the Solicitor General of Michigan and he -- no fool -- has done the same thing."

Finally, they all agreed that, like it or hate it, arguing in the U.S. Supreme Court was an incredibly stressful experience.

"When the Supreme Court called me and said that the petition for cert has been granted, my stomach dropped, and all the sudden I thought 'This is real,'" Jacobs said.

"It's nerve wracking to a degree you can't imagine," said Van Hoek, "but it's something as an appellate attorney you always hope you can do."

It's left to McCowan to have the last word -- literally and figuratively -- on the fear factor.

"I think 'terrified' is the best way to describe my response when I found out I would be arguing in the Supreme Court," she said. "I felt confident in my writing skills, way more so than in my oral arguments. A friend who had clerked for Justice Stevens talked me through it and was a calming influence. But then at the end she said, 'See, you did it and the brief is great and even if you get there on the day of oral arguments and you pass out it doesn't matter, because they have your brief!' I thought, 'Wait a minute ... has anyone ever passed out?' It hadn't even occurred to me that could happen."

Published: Mon, Jan 23, 2012