SCOTUS Specialist or Subject Matter Specialist?:
A new article over at law.com raises an interesting question: If you are a client with a Supreme Court case in a specialized area of law, is it better to hire a Supreme Court specialist or a subject-matter specialist to argue your case? Here's an excerpt:
Perhaps the one clear rule in this area is this: If you're going to argue a Supreme Court case, do not boast to a reporter that "[i]t's hard for me to imagine there is someone who could be more effective than me." This kind of attitude only reflects poorly on the lawyer, and that can't help the client.
Thanks to Howard for the link.
Dabney [a patent law specialist] and some others argue that a Supreme Court specialist isn't quite the answer. "The trade-off is how well people know the Court versus how well they know the subject matter," says Stanford Law School professor Mark Lemley, one of 24 law professors who filed an amicus curiae brief on behalf of KSR. "In several high-profile cases over the last four years, very well-known oral advocates have blown the answers to really important questions," he added, though he declined to provide specifics.So which is better -- subject area specialist or Supreme Court specialist? In my view, the answer is that it depends. If the subject area specialist is truly a nationally-known expert in the field, then that may be helpful. That reputation can bring added credibility. On the other hand, it's possible to know too much about a subject area. For example, Dabney's knowledge of Supreme Court precedent in patent law "dating back to the mid-nineteenth century" may be counter-productive; the Justices won't know much about it and aren't bound by it, so their eyes will probably glaze over if he focuses on it too much. A generalist can make sure that the Justices don't miss the forest for the trees. Of course, the downside to a generalist is that he can miss the forest altogether.
The question of whether or not an IP lawyer should argue IP cases before the high court was a dead issue for decades. Then, in its last session, the Supreme Court granted certiorari to four IP cases, more than any year since 1965, when it heard seven. So far, the Supreme Court guys have come out on top: Only one of last year's cases was argued by a patent litigator, and he lost. Bingham McCutchen IP partner Robert Schroeder represented respondent Swift-Eckrich, Inc., in a patent suit against Unitherm Food Systems, Inc. Oklahoma City business litigator Burck Bailey won that one. The rest were argued by Supreme Court specialists.
Dabney claims to be the best of both worlds. Over the last 15 years he has made himself an expert on Supreme Court precedent in patent law dating back to the mid-nineteenth century. And as he says, with typical bombast: "It's hard for me to imagine there is someone who could be more effective than me."
Perhaps the one clear rule in this area is this: If you're going to argue a Supreme Court case, do not boast to a reporter that "[i]t's hard for me to imagine there is someone who could be more effective than me." This kind of attitude only reflects poorly on the lawyer, and that can't help the client.
Thanks to Howard for the link.
I think it matters often enough that a client should think very carefully about the question of which attorney to chose.
While patent law is critically important to the economic health of the country, do justices really give a rat's ass about it? I suspect they do not, so having a SCt generalist talk to the people who don't want to be more than generalists, if that, is likely a better course. A well coached generalist of course.
On the other hand, in something the justices might really get into, say some tax thing, using the tax specialist with coaching from the SCT generalist, might be the better course.
Then there is the third case, illustrated by the SCt hearings in BushvGore. Gore chose Tribe for the first whack, which ended up with the SCt vacating and remanding SCOFLA and telling it to try writing a coherent opinion. Then Gore chose Boies, who presumably knew the details of the case, for The Ultimate All The Marbles Hearing.
Did he choose well? Was knowing the details of the case more important than having an experienced SCt generalist?
My point wasn't that the choice was meaningless or irrelevant, but that it cannot be answered usefully without first addressing why oral argument matters (and for, ostensibly, you'd need a court specialist).
I.e., what is to be gained (or lost) in oral argument given the extensive briefing provided to the Court as well as the intellectual energy the Court itself will direct at the issues? In how many cases is oral argument a but-for cause of the outcome?
I'm not saying oral argument isn't important -- I'm saying that I don't think you can understand the importance of oral argument without being very, very familiar with the Court and that you can't make an informed decision about your orator without knowing what the practical aims are.
Excellent line, OK.
Reminds me of Newt Gingrich.
In all seriousness, the best appellate patent lawyers, in my limited experience, for the most part, haven't been patent specialists. For the KSR case, a good Supreme Court lawyer who can learn the subject matter with enough sophistication is a better choice, IMHO, than a patent specialist who would like to argue in the Supreme Court.
This isn't perfectly on point, but in patent cases the Supreme Court's decision whether to grant cert is heavily influenced by the SG's recommendation (see here), and not, for example, by the input of the AIPLA, the CAFC Bar Association, or patent law professors. The Supreme Court is a generalist court, and a generalist litigator who can absorb the subject matter in sufficient depth is probably the best lawyer for the job.
Amen to that. I wouldn't want to be in the same room with the guy, much less have him representing me. It's easy to imagine him getting mad at the justices for not "understanding" (= "embracing") his opinion, and lecturing them on their ignorance.
Randy Barnett's point was slightly different. He argued that while most times an experienced Supreme Court advocate is the best choice, occasionally litigants need an outsider who will make an unconventional argument. The experienced Supreme Court advocate, it was suggested, is hesitant to risk his reputation before the court as a respected repeat player by offering a non-traditional argument, even if it has a chance of success. This strikes me as quite an indictment of those advocates, and I do not know the extent to which it represents actual practice, but it is something to think about.
This Dabney fellow must have a severely limited imagination if it couldn't come up with that one.
Being a great advocate for your cause, in the narrow but deep subject matter you are a master of, is no guarantee you will be persuasive in a different environment.
Sometimes a great specialist will be able to master the intricate nuances - but only if properly brought along by the SM specialist.
Also: Know the facts! Know the law! Know the tribunal!
Also: duh.
Indeed, any good attorney with a heavy law and motion practice should be able to succeed in the Supreme Court. Obviously more care and time will be invested in a Supreme Court brief than, say, a summary judgment brief, but the mechanisms of good research, writing and advocacy are the same.
If one were more cynical about the Supreme Court, then a "specialist" in the sense of one who is socially familiar to the justices would be a better choice. However, at the risk of sounding naive, the Supreme Court chooses its own docket and presumably decides cases on their merits. A case may turn on the quality of the attorneys' work product, but not on the identity of the attorneys.
If it's an IP case, hire Seth Waxman, he's probably the Supreme Court specialist with the best knowledge of IP law. Failing that, get both kinds of specialists to write the brief. The Supreme Court specialist should argue it and be primary author. There's an art to writing a good Supreme Court brief that's different from a trial brief or a brief to the Court of Appeals. But, at least with patent law, there are often sublties and history that generalists rarely grasp.
Unitherm wasn't really an IP case, by the way, it was a civil procedure issue in the context of a patent case.
I agree that on the petition stage the input of a Supreme Court specialist is critical. I've seen too many petitions terrible petitions that virtually foreclosed review on cases that should have been review.
The only choice is who presents. There, I think the criterion is easy: who's the better oral advocate? I would suspect, as a general rule, it's the one who's more practiced at it, i.e., the appellate specialist. If you're a good appellate advocate, you're a quick study: you pride yourself on your ability to get up to speed on virtually any subject matter -- and not just in a slick way, but up-to-speeed enough that you can converse intelligently with the specialists in the field, and teach it to the Court. More difficult for some subject matter than others, but that's why they pay you the big bucks.
For better or worse, stare decisis is a powerful doctrine. I very much doubt that a self-described "specialist" somehow has a better ability to get SCOTUS to throw well-establised precedent overboard. It just doesn't happen that often. It is difficult to imagine, at conference, the Chief saying, "well, ordinarily we'd just apply this string of precedent, but we should redo this body of law because Mr. Specialist said so."
There is something about JPS3L's argument that suggests the Justices are more or less malleable putty that can be crafted with sufficiently expert hands. Certainly a high degree of talent is desirable, if not required, for Supreme Court practice; and most, if not all self-described "specialists" are more than sufficiently talented. But in the end, it is a marketing gimmick. A clever and effective marketing gimmick, but a gimmick nonetheless. Supreme Court practice requires talented lawyers, not high priests.
Lopez affirmed the CA5, though; Judge Garwood was able to come up with similar arguments from his non-SCOTUS position too. If the Supreme Court hasn't spoken to an issue, very similar policy/text/"new law" issues confront lower courts too, albeit much less frequently.
Now... I'm not overly deferential to authority... But on these matters I'm particulary interested in the opinions of people who worked next to Supreme Court justices. Everyone else is just guessing!
The reason you would go with a specialist in any of those situations is their “court-specific human capital.” They’ve invested lots of time learning the court’s customs as well as the judges’ judicial (and sometimes personal) quirks. If you think that makes no difference to how your case comes out, you are kidding yourself!
However, if I ever have a case that goes there, you bet I am going to argue it myself, I don’t care how much extra work I have to do to prepare.