April 2002

How to Prepare  --  and Prevail  --  Before the Supreme Court of the United States

by Mark B. Rotenberg

One is rarely prepared when lightning actually strikes. On an otherwise ordinary morning last June, when one of my colleagues interrupted a routine staff meeting to announce that the United States Supreme Court had granted the petition for certiorari in Raygor and Goodchild v.  Regents of the University of Minnesota,1 I was incredulous.  The University had opposed the petition, and I had convinced myself that our short brief in opposition was the last filing we would ever submit in the case.  After all, the Supreme Court hears only about 1% of all cases presented to it for consideration.  But there it was, the Supreme Court's order granting the writ was in my hand, and for the next five months I would face the unique challenge of preparing to present a case before the Nation's highest court.  From this memorable experience, I would offer ten informal tips on how to prepare -- and prevail -- before the Supreme Court of the United States, in case you, too, get hit by a bolt from the blue.2

1.  Consider who best should argue the case. Even before the briefs get written, for better or for worse the first thought that runs through the mind is about oral argument.  The truth is that while most litigators dream of having one case in their career that gets "all the way to the Supreme Court," only the tiniest fraction of the bar has any personal familiarity with Supreme Court practice, and most of those lawyers reside in Washington and New York.  If you, like me, are not part of this elite group, you must carefully consider whether you have the background, skill, and time needed to perform this role properly.  The Supreme Court accepts cases without regard to the ability of the attorneys representing the parties, and as Chief Justice Warren Burger once observed, many lawyers whose clients end up in the Supreme Court "take advantage of this opportunity without giving much thought to their ability to do a credible job."3  Factors to consider are substantial appellate advocacy experience, thorough familiarity with the area of federal law under review, and time -- lots of it -- to devote to preparation. If you don't have these, you should help your client hire someone who does.

2.  Leave your ego at home, and seek help from those who study and practice before the Supreme Court.  Unless you are fortunate to have a practice focused on Supreme Court litigation, you are unlikely to have the familiarity with Supreme Court customs or the Court's current doctrinal framework that you will need effectively to advocate before the Court.  Find at least one or two attorneys who specialize in Supreme Court practice, who specialize in the legal field under review, and with whom you are comfortable.  Work intensively with them to shape your briefing and conduct your moot courts.  Do not assume that because you handled the case up to this point, you understand what the Justices will want to focus on.  More valuable than the views of a lawyer who handled the case below is the perspective of a lawyer who knows the Court well and who possesses the kind of knowledge of the law at issue that the Court will have.  He or she is in the best position to gauge what the interests and inclinations of the Justices will be at oral argument.  I was fortunate to have the advice of seasoned Supreme Court advocates, as well as a number of recent Supreme Court law clerks who were able to recommend effective approaches to particular questions "their Justices" were likely to pose.  You should also review copies of recent briefs submitted by the U.S. Solicitor General for both style and content.  They are the gold standard by which the Justices measure the quality of other briefs filed with the Court.

3.  Consider using amici filings to support your position. Cases in the Supreme Court typically raise questions of national importance, and thus are of great interest to many advocacy groups.  These groups are natural allies or opponents of your position.  Be aware of who they are and what role they may play in your case, and consider working with one or more of them to help the Court understand the broader implications of the legal issues at hand. In our case, amicus briefs were filed on behalf of dozens of states and a host of other governmental organizations.  (The United States also intervened and filed a brief in support of the University.)  Groups like these not only may provide invaluable sounding boards as briefing strategy is developed, they can assist in moot courts and supplement the parties' written advocacy with briefs of their own which help the Court understand other important perspectives on the case.

4.  Read as many cases as you possibly can, as well as relevant oral argument transcripts, and discuss their meaning with experts.  When you appear for your oral argument, you will stand before nine Justices who have a comprehensive familiarity with the Court's decisions bearing on your case. Many of them also may recall oral arguments in previous cases touching on the issues you intend to raise.  You must be in a position to have a sophisticated dialogue concerning these cases, how they can be reconciled in your client's favor, and how questions previously raised by the Justices in their opinions and at oral arguments may be answered.  Oral argument at the Supreme Court amounts to a high-level conversation with the Justices about their concerns.  You cannot address those concerns effectively if you haven't thought about them very carefully before hand.  Thus, reading broadly and thinking creatively about the implications of your position are a must.  At my oral argument, the very first question I faced concerned a federal statute that had never been cited or discussed by any of the courts below, nor referred to in any of the briefs filed with the Supreme Court.  Fortunately, my team and I had practiced a question similar to that one in one of my moot courts.  Effective preparation means having these advanced conversations again and again with others who are as knowledgeable as are the Justices themselves about their cases.  See Tip 2, above.

5.  Know your record.  Supreme Court lore is filled with tales of advocates who were stymied by seemingly simple questions about the factual or procedural posture of their own case.  While it certainly is true that the Court is not concerned principally with merely correcting error in the case at hand, often a Justice will use the particulars of the case to illustrate a broader point to his or her colleagues, or to distinguish the case from some larger historical or legal phenomenon.  Nothing will frustrate a Justice more than a lawyer unknowledgeable about the details of his or her case. 

6.  Focus on your weak spots-the Court and your opponent surely will!  Prepare, rehearse and review again what you intend to say in response to the toughest questions your case presents.  Invite your team of experts to critique and improve your response.  This is not the time to surround yourself with "yes men."  There will be plenty of time to celebrate the quality of your presentation after that celebration actually is earned by your performance before the Court.  Preparation time should be spent grinding and honing the edge of the points you need to make in order to defeat your opponent.  That means practicing crisp and candid responses to your weakest points.    

7.  Study the practices and customs of the Supreme Court. As anyone who has appeared before the Court will attest, it simply is not just another appellate court.  There is no other court like it.  The Clerk of the Supreme Court publishes a "Guide for Counsel in Cases to be Argued Before the Supreme Court of the United States," which contains essential information and advice on briefing, oral argument, decorum, seating, etc. [e.g., "Do not introduce yourself or co-counsel.  Under present practice, "Mr." is only used in addressing the Chief Justice."]  Get it and read it carefully. Equally important, if you possibly can, go to Washington and watch an argument or two first hand.

8.  Expect media attention, and develop key media messages. Everyone knows that the news media cover the Supreme Court vigilantly, but arguing counsel may overlook the fact that what counsel may be asked on the courthouse steps is not the same as what he or she was asked in the courtroom.  In our case, for example, the briefs and oral arguments focused on issues of federalism and statutory interpretation.  The media's focus was instead on the personal predicament of the two retired University employees who had sued their employer. Leaving the marble and velvet courtroom for the bright lights of the media out front, I had to immediately adjust the focus of my presentation and confront a very different audience with very different concerns.  Be prepared to perform in both arenas, and don't confuse the two.

9.  Arrive in Washington early, and get focused!  Our oral argument was scheduled on the Monday morning following Thanksgiving.  While it meant being out of town over the Thanksgiving weekend, I decided to be in Washington for the weekend to get comfortable, focused and rested.  [I also didn't want to risk any post-9/11 travel disruptions flying into Washington, D.C.]  No matter when your argument is scheduled, however, it's vital to get completely focused and eliminate distractions well before you get to Court. As noted above, it is also advisable to attend some Supreme Court sessions before your argument date, especially if you are not familiar with the courthouse layout, argument decorum and procedures, etc.  This will help reduce the inevitable jitters on argument day, which all advocates -- even experienced ones -- have at the Supreme Court.4  Finally, on the night before the argument, stop reading cases, have a good dinner, and get a good night's sleep.  What you don't already know the night before, you aren't likely to learn effectively then anyway!

10.  Once you're at the podium, remember you're not there to give a speech, to rehearse the points in your brief, or to be entertaining [only Justices tell jokes!]  Your principal mission at oral argument is to help the Justices come around to your client's position, and you do that by answering their questions.  The transcript of my argument reveals that I was able to get three sentences out before the questions started coming, and they did not let up for almost the entire 30 minutes I was allotted.  My experience was typical of that of most arguing counsel.  This suggests that the goal of your oral argument preparation must be depth of understanding, not delivering a smooth lecture. Deal directly with difficult questions -- be candid and forthright in defending the implications of your position.  If a question calls for a yes or no, say yes or no, then elaborate.  Often the Justices are speaking through you to their colleagues, and they -- or their colleagues who may agree with you -- expect you to hold your ground.  Hypothetical situations are frequently suggested by Justices to test the application of a rule they contemplate adopting for the Nation as a whole.  It is not helpful, therefore, to respond simply by saying that the facts of your case are different; they know that.  You need to help the Court understand how your position makes sense as a general rule of law for the United States.

These tips, of course, don't assure victory.  Winning in the Supreme Court may not turn on the quality of the attorneys' presentations -- after all, the Justices and their clerks are able to come to their own view of the merits even without counsel's help.  But it is certainly also true that oral arguments do matter; the Supreme Court would not hold them if they did not.  Some Justices may be undecided about the outcome going into oral argument, and your oral presentation may suggest an answer to a difficult question that might change some votes, or might materially change the way a decision is written. You can't control those things, of course, but you can control how well prepared you are.  You owe it to your client, and to yourself, to do the best you possibly can.  These tips may help you to do that.  Remember, lightning may only strike once!

Mark Rotenberg is General Counsel of the University of Minnesota. He previously was a partner with Dorsey & Whitney, served in the Justice Department's Office of Legal Counsel, and was law clerk to D.C. Circuit Chief Judge Patricia Wald.

1 No.  00-1514.  Certiorari was granted on June 4, 2001. The case was argued November 26, 2001 and the Court's decision was announced February 27, 2002.

2 In addition to these informal tips, attorneys appearing before the Supreme Court may consult a number of excellent sources.  See, e.g., Robert Stern, Eugene Gressman, Stephen Shapiro, Kenneth Geller, Supreme Court Practice [7th ed. 1993]; Richard Willard, Strategies for Case Preparation and Argument Before the Supreme Court, 5 U.S.F.Mar.L.J.  91 [1992]; Rex Lee, Oral Argument in the Supreme Court, 72 A.B.A.J.  60 [June 1986].

3 Warren E.  Burger, Forward: Conference on Supreme Court Advocacy, 33 Cath.  U.L.Rev.  525, 526 [1984].

4  Chief Justice Rehnquist has stated that he believes all attorneys arguing before the Court are nervous.  When he argued a case in the Supreme Court as a Justice Department lawyer, he said, he found himself "bathed in sweat" when the ordeal was over.  See Thomas Spaulding, A Lawyer's Day at the United States Supreme Court, 63 Tex.  B.J.  140, 141 [2000].