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"Supreme Court Argument Cycle Dominated by Veterans":
Marcia Coyle of the National Law Journal has the scoop.

  I wonder how (if at all) the picture changes if you focus on who wrote the briefs rather than who stood at the podium for oral argument. The media invariably focuses on who gave the argument, but most of the important work is done at the briefing stage. Of course, if there are lots of names on a brief, it's hard to tell who actually did the bulk of the work; focusing on who had the argument is much easier.
Steve:
As a first-year, I had the pleasure of calling the Supreme Court Clerk to ask if there are any restrictions as far as the names you can put on a cert petition. (Answer: As long as the top name is a member of the Supreme Court bar, they don't care how many other names you add underneath.) I got the sense that they get asked that question ALL THE TIME.

As with other legal filings, the answer is usually, but not always, that the bottom name on the brief did most of the work.
8.11.2009 11:47am
OrinKerr:
Great comment, Steve.
8.11.2009 11:48am
Jay:
That's true, I think, as long as all the names are members of some bar--when I was part of a law school SC clinic, we were told that another school's clinic had learned the hard way that the Court did not (perhaps obviously) want students' names on briefs, but also had rejected/required revision of briefs that simply said "X Law School S.C. Clinic."

Also, is it necessarily the top name, or the one with the asterisk next to it indicating who the "Counsel of Record" is? Oddly they aren't always the same.
8.11.2009 11:57am
Steve:
In my case it was the top name (he wouldn't have been on top otherwise, as he wasn't the senior lawyer), but this was 15 years ago, so who knows.
8.11.2009 12:02pm
ayzc:
I just wrote a cert petition (my first). I believe the name marked as counsel of record needs to be a member of the supreme court bar, but that name doesn't need to be the top one
8.11.2009 12:16pm
Eduardo:
Actually, I disagree with Steve. I think that with Supreme Court briefs, usually the second person on the list did most of the work. In many of these shops, there is a partner who primarily handles the briefing (for example, Virginia Seitz writing Carter Phillips' briefs). Sure, there is important research by junior associates as well, but I would focus on the second from the top if you want to know who gets lion's share of credit for the briefs.
8.11.2009 12:18pm
Steve:
That's a valid point, but it assumes the junior associate is even going to get his name on the brief once every partner in the firm has claimed pride of place!
8.11.2009 12:26pm
Jon Roland (mail) (www):
As one whose name has appeared on both cert. and amicus briefs, and contributed to the writing of all of them, I have some perspective on what happens. I seem to be invited to join after the brief has reached a late stage of drafting and there is a felt need for cleanup, which is what I have mostly done. Not so much verifying the cites (Ialthough I have caught some errors there) as keeping the lines or argument relevant and on-track, checking the logic, and better framing of the issues. It seems many lawyers get so emotionally involved in their cases that they lose the perspective that an outsider, especially an outsider to the legal mainstream, can provide. I have also tried to read the concerns of particular justices that could affect the way they vote.
8.11.2009 12:30pm
OrinKerr:
I think it would be funny if the court rules required parentheticals explaining each person's role in the brief writing on the cover of the brief. A list of counsel on a cert petition could be like this:

John Allstar (uninvolved, but he's our big name)
Karen Lawyer (uninvolved, but she's the head of practice group)
Ally Associate (wrote the whole thing)
John Junior (he only reviewed a draft, but he clerked for Justice X and we're trying to get his attention)
8.11.2009 12:36pm
OrinKerr:
It seems many lawyers get so emotionally involved in their cases that they lose the perspective that an outsider, especially an outsider to the legal mainstream, can provide.

Jon Roland, you certainly provide that. ;-)
8.11.2009 12:38pm
Dilan Esper (mail) (www):
Arguing the case is the glory position, and unfortunately much of supreme court boutique practice seems to be focused on falsely convincing parties that oral argument matters so much that you have to deny the glory to your local lawyer.

Brief writing does matter much more, and if the big time oral advocates would sublimate their egos, they would tell clients that the briefing is more important than who argued.
8.11.2009 12:47pm
krs:
Jay and Steve, the names on the brief thing is spelled out in the rules. See Supreme Court Rule 34.1(f):

Only one counsel of record may be noted on a single document. The names of other members of the Bar of this Court or of the bar of the highest court of State acting as counsel, and, if desired, their addresses, may be added, but counsel of record shall be clearly identified. Names of persons other than attorneys admitted to a state bar may not be listed, unless the party is appearing pro se, in which case the party's name, address, and telephone number shall appear.


Jay, the top name isn't always counsel of record. See, e.g., this cert petition.
8.11.2009 12:50pm
The Court's Friend:

The media invariably focuses on who gave the argument, but most of the important work is done at the briefing stage.

This tends to be true in cases before the courts of appeals as well. It doesn't matter if # 2 or # 3 on the brief has read the record, done the research, drafted and revised the entire brief, and compiled the appendix, and if # 1 did no more than put his signature on it. As long as # 1 breezes through a cram session and presents oral argument, # 1 gets all the credit/accolades.
8.11.2009 12:53pm
The Drill SGT:
On the other hand, we could use a veteran on the court.

Frankly, my fantasy of invoking a modified Heinlein "you have to be a Vet to vote" rule, and requiring Congresspersons to be a product of say, the Military, the Peace Coprs or the UPHS would make me happy :)
8.11.2009 1:29pm
CJColucci:
If the brief came out of Bigname McOral's shop and the case came to the shop in the first place because of Bigname McOral, then it is only fair that Bigname McOral get the coverage. Not that I wouldn't be interested in a story about which worker bees did what, having been a worker bee on a few cases myself, but that's too inside-baseball for a general audience -- or so, at least, the media serving general audiences are entitled to think.
8.11.2009 2:39pm
OrinKerr:
If the brief came out of Bigname McOral's shop and the case came to the shop in the first place because of Bigname McOral, then it is only fair that Bigname McOral get the coverage.

Why? Fair in what sense? Fair to whom?
8.11.2009 2:45pm
Anderson (mail):
As with other legal filings, the answer is usually, but not always, that the bottom name on the brief did most of the work.

This has certainly been my experience, to the extent that, where I write a brief and there are 3 or more attorneys listed, I want to be the one named last.

I like Prof. Kerr's suggested parentheticals rule ... subject to Rule 11-style sanctions for dishonesty!
8.11.2009 2:50pm
Anderson (mail):
it is only fair that Bigname McOral get the coverage

I scarcely think that putting a porn star's name on the brief is likely to help with most of the justices.
8.11.2009 2:54pm
AF:
In my experience (which with the exception of 3 filings has not been with the Supreme Court), there is enough variation in (1) how drafting is allocated and organized, (2) how heavily the drafts are edited, and (3) which names ultimately appear on the brief and where, that it is would be very to tell who if anyone did the bulk of the work on the brief just by looking at it.

However, I like Orin's suggestion and would suggest extending it to the parties on the various amicus briefs:



The Center for Better Law in the USA (token conservative group supporting the liberal side of the case)

The National Association of People With Identical Financial Interests to Respondent (duh)

Washington Legal Foundation (files a brief in every Supreme Court case)

Brief of 183 Professors of South American maritime law(prominent law professors want Court to adopt an innovative position tangential to the case that represents the consensus among law professors)

Brief of Professor Y (solitary law professor wants Court to adopt a bizarre position almost wholly unrelated to the case from an article he wrote in 1986)
8.11.2009 3:13pm
Anderson (mail):
The National Association of People With Identical Financial Interests to Respondent

AF for the win!
8.11.2009 3:16pm
Steve:
Yeah, I loved that one too.
8.11.2009 3:23pm
Jay:
The last-listed-name rule is probably most accurate (and perhaps the line originated) in government filings, where certain top officials are listed in order even though they literally may have never even heard of a case, something which I doubt is true to quite the same degree in private practice. For example, every appellate brief filed by a U.S. Attorneys' office is going to list the U.S. Attorney at the top; every brief filed by the DOJ Civil Division is going to begin with the Civil AAG; briefs filed on behalf of a state typically list the A.G. first.
8.11.2009 3:37pm
Jon Roland (mail) (www):
OrinKerr:

It seems many lawyers get so emotionally involved in their cases that they lose the perspective that an outsider, especially an outsider to the legal mainstream, can provide.

Jon Roland, you certainly provide that. ;-)

And since I plan to be a candidate for the U.S. Senate for Hutchison's seat, if lightning strikes I could become the other senator from Texas. (I know Cornyn since back when he was Bexar County District Presiding Judge.)
8.11.2009 3:47pm
krs:
1. I scarcely think that putting a porn star's name on the brief is likely to help with most of the justices. Right, but the clerks...

2. The "last name did all of the work" rule isn't always accurate, in my experience. Some partners I know are fairly hands-on, and an "honesty rule" listing might look like this.

John Allstar (reviewed some drafts, peripherally involved)
Karen Lawyer (did most of the thinking, half of the writing and about a quarter of the research)
Ally Associate (did some of the thinking, wrote a first draft that was reworked by Karen Lawyer, and did about two-thirds of the research)
John Junior (spent several hours on Wexis looking for cases to support discrete points)

I have no idea how representative that is of the world at large. Several of the arguments I've seen seemed pretty clearly done by people who hadn't written the brief.
8.11.2009 4:17pm
krs:
I like AF's suggestion. I think I've seen these things before under different captions:


Brief of 180 Law Professors and Law-Professor-Like Individuals whose expertise is not related to the case and who signed the brief because of their political views and who hope to project the air of detached expertise, at least to the media.

Brief of 10 Law Professors and Law-Professor-Like Individuals rounded up at the last minute to counter the Brief of 180 and dispel the view that the 180 speak for all Law Professors and Law-Professor-Like Individuals.

Brief of Some Guy Who Thinks It's Cool to File Supreme Court Briefs But Has Nothing of Substance to Add.

Brief of Some People Who Want You to Know that the Sky Will Fall if the Court Sides With Petitioners.

Brief of Some People Who Want You to Know that the Sky Will Fall if the Court Sides With Respondents.
8.11.2009 4:24pm
Read too many briefs:
The amicus brief titles have come close to, but not quite hit, this one:

Brief of Interest Group that Knows that This Brief Will Not Be Read But Needs to Tell Donors that We're Fighting For them in the Supreme Court and Will Later Tell Donors that We "Won" The Case And Saved The Children (from American Pie?)
8.11.2009 5:30pm
BZ:
I'd even go a bit further:

These days, at least on the major brief, many of the points have been vetted and commented on by other attorneys not in the firm, but in the field (or knowledgeable about the issue). This prevents the lead firm, who may have only one aspect of the issue in mind, from focussing exclusively on that one aspect. The proscription in the rules for cooperation in writing the brief goes only to parties' attorneys writing amicus briefs, not the other way around.

E.g.: a recent briefing and moot series included dozens of lawyers, both former govt officials and others. The moot centered on a procedural issue, the briefing on procedural and substantive issues, the eventual decision looked principally at a substantive question as being decisive of the procedural determination. The tipping point on the substantive question was in an amicus brief. Which lawyer could best have been described as the one who deserved the "focus?" I would argue "none of the above." The focus should have been on the decisive issue, which essentially dropped into the pond of coverage like a stone, spawning few ripples.

And further, I would point out that it was probably the attorney who got the issue and facts framed correctly below who deserves a good bit of credit, particularly in an affirmance. And today those attorneys are often frozen out for a bigger name. A friend of mine, known to many on this list, is extraordinarily effective at getting SCotUS wins, but still can find himself out in favor of another, bigger name.
8.12.2009 10:42am
CJColucci:
If the brief came out of Bigname McOral's shop and the case came to the shop in the first place because of Bigname McOral, then it is only fair that Bigname McOral get the coverage.
Why? Fair in what sense? Fair to whom?

Because that's what most people in the target audience will likely find interesting -- who's grabbing these cases and why. And there seems to be an actual trend to report, an increasing concentration of cases going to certain big name specialists. While you and I may find reporting on the division of labor among worker bees interesting, I doubt that such interests are widely enough shared to make editors and publishers want to run such an article. And there's probably no trend to report either on that subject.
8.12.2009 11:02am
SCOTUS Devotee:
krs (8/11, 12:50 p.m.), actually the "one counsel of record per brief" rule, clear as it seems, isn't always followed. once I saw two counsel of record on a brief. i'm pretty sure bob bork was on it, so one could find it with a bit of searching. there were at least two parties represented on the brief, so maybe that was the theory for multiple "counsels of record."
8.13.2009 8:10am
Roy G. Biv:

If the brief came out of Bigname McOral's shop and the case came to the shop in the first place because of Bigname McOral, then it is only fair that Bigname McOral get the coverage. Not that I wouldn't be interested in a story about which worker bees did what, having been a worker bee on a few cases myself, but that's too inside-baseball for a general audience -- or so, at least, the media serving general audiences are entitled to think.

If McOral is someone like Ted Olson or Carter Phillips, then I suppose there's no problem with his getting the accolades, as I suspect he's had plenty of input in the case from day one. The previous post, however, referred to situations in which Bigname may have gotten the case for reasons entirely unrelated to his expertise in appellate practice, takes virtually no part in the brainstorming, researching, writing, or editing, and then waltzes in at the last minute to put on a big show for the client at oral argument. While this is much more common in the courts of appeals than it is in the Supreme Court, I think it's bad practice no matter what the venue.

I've made it far enough up the food chain so that this no longer happens to me, but, having learned my lesson, it is my practice NOT to present oral argument in cases in which I didn't write (or at least have very substantial editing and revising duties on) the brief. Maybe that's Old-School, but many judges I've spoken to seem to prefer it.
8.13.2009 10:03am
CJColucci:
Roy G. Biv:
For what it's worth, I agree with you on what is the better practice. My point was about what the media does and why.
8.13.2009 12:59pm

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