I’m delighted that Richard Lazarus has joined us to discuss his fascinating article on Supreme Court advocacy and the Supreme Court bar.
After reading the article, I found myself wondering if the uneven distribution of top advocates is more a result of unsophisticated clients or the gap between economic “haves” and “have-nots.” I tend to think it’s more the former than the latter. There are many Supreme Court lawyers eager to help out for free on viable cases (or better yet, granted cases), so I think the role of resources is actually smaller at the Supreme Court than elsewhere. But the most sophisticated clients know that Supreme Court advocacy is a weird art, and that you often get better results when you have a trained artist helping you out. This isn’t always true, obviously, and to be clear I don’t think it’s is a good thing. But for better or worse it’s often the case. So the most sophisticated clients will pick their lawyers carefully and will aim for experienced counsel with a deep understanding of the Supreme Court. Unsophisticated clients are less likely to realize this, and their interests sometimes suffer as a result.
I would guess that’s the major problem in criminal defense cases. Lazarus states at the top of page 95 that criminal defense lawyers sometimes decline assistance from Supreme Court experts, preferring to “go it alone,” and that this can lead to a major gap in advocacy quality between the government and the defense. But the underlying problem is that the clients will tend not to know any better. A young and uneducated criminal defendant serving 30-to-life in a maximum security prison isn’t likely to be a specialist in appellate practice. He isn’t likely to know that he should ask his trial lawyer to step aside and find top-notch appellate advocates out there eager to represent him for free.
Of course, making more clients more aware of the effectiveness of different types of lawyers is no easy task. Maybe it’s an impossible one. But perhaps the attention to Professor Lazarus’s article is itself a start.