"May it Please the Court": Arguing Before the United States Supreme Court
You might be thinking, “I'll never argue a case before the Supreme Court, so why bother reading this”? If you think about it, there's probably not a single group of Americans with more experience at both hearing and giving persuasive speeches than the nine justices on the United States Supreme Court. First, they hand-pick the cases that they want to hear. From their standpoint, they’re never wasting their time. Second, some of the best litigators come before the Supreme Court. They hear America's best attorneys argue their cases. Third, the justices are practiced debaters. They might stop an attorney and ask him questions, or debate him on some narrow point of law. So, even if you'll never argue before the Supreme Court, you might want to read on as it may help you the next time you have to speak before a group with the goal of persuading them.
A Unique Experience
Few attorneys get to argue before the Supreme Court, but many of those that have say that it’s an intimidating experience. In 1935, the Solicitor General Stanley Reed fainted when arguing before the Court--but it was probably from exhaustion. Current associate justice Ruth Bader Ginsberg argued before the Court when she was younger. She said that she did not eat anything that day for fear that she would lose it while arguing!
Attorneys are by themselves at the podium where they face the Nine. They have 30 minutes to make their case before the Court and the Court has been religious about making the attorneys stop in mid sentence once their time is up. Furthermore, the justices can ask them any questions they wish so counsel must be prepared.
Before they argue their case before the Court, counsel has filed a brief with the Court. A brief is a document that the lawyer provides for the justices, which provides the legal reasoning for why counsel feels the Court should decide in favor of his client. The Court might also allow others who are not parties in the case to file a brief. These briefs are called amicus curiae briefs (amicus curiae means “friend of the court”).
Back in 2008, Supreme Court Associate Justice Antonin Scalia and legal writing expert Bryan Garner wrote a book called Making Your Case: the Art of Persuading Judges, where they offer counsel advice on the best approach to take when arguing before the Court. Some of these tidbits you probably already know, but some might surprise you….
What You Probably Already Know
There are several things about persuasive speech that you probably have known about for as long as when your speech teacher told you to stand up straight and breath with your diaphragm, but Scalia and Garner don’t leave it to chance that you know.
- Dress for Success—Leave the khakis and sports coat home—dress appropriately.
- Know, Know, Know—Know your audience, know your case, know your opponent’s case.
- Prepare, Prepare, Prepare—When those well-meaning friends come by and say, “You can over prepare, you know…,” just smile and get back to work.
- Alpha and Omega—Keep in mind the beginning and the end, that is, have a powerful beginning and a powerful ending. The rest of the time, you're probably going to be answering questions.
- Be Accurate—Don’t overstate your case.
- Don’t Accuse—Let your argument do the indicting.
What You May Not Know
However, all’s not as it seems. Some of the advice might surprise you….
In his 2002 book The Supreme Court, the late Chief Justice William Rehnquist noted that the best attorneys that argue before the Court are not necessarily the best rhetoricians that can wow the audience with eloquence. In fact, the worst presentation would be a canned, memorized speech no matter how eloquently delivered. Rather, the attorney must be ready to engage in a discussion with the Court which will involve a battery of questions being fired at him by the justices. The attorney might have a great opening and a great closing. But in between, he will not get his chance to give a scripted speech.
In fact, in recent times, the justice’s questions have become the structure of oral argument. Except for Justice Clarence Thomas who fancies himself a “listener,” the rest of the justices ask questions of counsel. Therefore, the best attorney before the Court has to be one that can handle tough questions and still make his point. So Scalia and Garner instruct counsel to embrace the questioning process. Attorneys won't be successful if they see the questions as an interruption to their speech. They will have to make their points as they answer questions.
- "Boy, you're inquisitive!"—Never act put out by a question and never put off a question. Stop what you're saying in mid sentence and answer it. If another justice interrupts you with a question of their own, leave off answering the previous justice and answer the new one.
- If you don’t understand the question, say so—Ask for clarification.
- "I'm not omniscient, you know..."—The justices don’t expect you to be omniscient, just near-omniscient. So, if you don’t know, say so. But if you have to do that too much, your goose is getting cooked.
- “Mr. Chief Justice, that was a very interesting (or “insightful” or “elegant” or “meaningful” or “cogent”) question.”—You shouldn’t be stomping on their ego, but you shouldn’t be stroking it either.
Listen to a Supreme Court Oral Argument: "Citizens United v. FEC" (2009)
And How Important is Oral Argument?
"The oral argument is not that important is it? Don’t the judges know what they need to know from reading the brief?” Not necessarily. Keep in mind that the Nine are probably not experts on your case. Yes, they are experts on the law generally but as the attorney, you are the expert (at least you’d better be!). So, they are going to tap your thinking when you stand before them.
And they can’t get everything from just the brief. It’s true, the brief contains more information than you can cover in your 30 minutes. But the brief does not have the persuasive power of oral argument. A judge, for example, can’t tell what you think is the most important point of law from what you’ve written. In the brief, one point might be longer than the other, but only because it is more complex and therefore requires more explanation. But that point might not be your most persuasive. The oral argument will bring order, priority, and focus to your case.
Some other advice for oral argument might go like this:
- Don’t try to pull the judges heartstrings—They may not be the most icy, hard-hearted pack in America but you just as well pretend that they are. Don’t appeal to emotion; they’re not going to shed one tear over your sob story about state government workers having to pay in ten percent of their salary for health care. In fact, they’ll likely resent it.
- “You know, Mr. Chief Justice, I was just thinking how much you and I have in common…”—Don’t even think about it. Be conversational, but not familiar.
- IMHO—Don’t say it. Present your case as the truth. After all, you think it’s the truth, don’t you? Stand on your own two feet. Don't say, “Pardon me while I text cocounsel…” Do it and you’re dead. Besides, they won’t know what you’re talking about. The Court was treated to indoor plumbing only ten years ago, computers three years ago, and Justice Stevens was still looking for the carriage return on his PC when he left in 2010.
- “You know, Justice Kennedy, that point of law reminds me about the one with the Imam, the Jewish Rabbi and the Catholic Priest and they’re all on this flight to Morocco and…..”—Humor is a very tricky thing before the Court, so be careful. They’re getting over $200,000 a year to crack the jokes from the bench (at least, that’s what they think) and the only one that’s really good at it is Justice Scalia. As for Justice Kagen, she’s not as good at telling jokes as she is at being one. Humor is no laughing matter when you’re in front of the Supremes, so tread lightly.
- KISS—Simplicity is elegance before the Court. You can’t cite every precedent and you can’t give the Supremes your entire brief in thirty minutes. You’ll have to pick and choose. “What is my best argument”? Of course, no one is saying that you should oversimplify or be simplistic. There is a balance there and you’ll need to find it.
Balance. Attorneys who argue before a Court have to walk a fine line: formal, but not stuffy; conversational, but not folksy, knowledgeable, but not a know-it-all; simple, but not simplistic. But these may be some of the same skills you’ll need the next time you have to persuade your boss to give you a raise or convince the father of your girlfriend that you’re the right guy for her.
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