Now in Legal Rebels:
Posted Mar 02, 2005 01:04 am CST
The case, Koons Pontiac Buick GMC v. Nigh, No. 03-377, involved an intensely close reading of the language in the federal Truth in Lending Act. At issue was whether a liability limitation in the statute applied to one or both clauses in a subparagraph. Ayer’s argument hinged on the rules contained in a congressional manual for how to express the legislature’s intent when drafting a bill.
The issue was arcane, even for a Supreme Court case. Yet Ginsburg wanted to know why he was mentioning the manual at all.
Ayer, arguing for Koons Pontiac Buick, believed his client’s case would hinge on the weight the court gave to the manual’s instructions. His response involved legislative procedure, grammatical structure—and a bit of Egyptian archaeology.
“We’ve been trying to think about how to understand those manuals,” Ayer told Ginsburg. “And the best idea I’ve heard from anyone is to refer to them as a sort of Rosetta stone.”
It isn’t often that the famed tablet translating ancient hieroglyphics is part of a Supreme Court argument. But Ayer was ready with the analogy. It was suggested just a week earlier when he practiced his argument during a moot court session at Georgetown Law Center’s Supreme Court Institute.
“That one very concrete thing made the argument so much more accessible and highlighted the key importance of the manual,” Ayer says.
The upshot: Ayer’s client won the case. The opinion, delivered Nov. 30, was written by Ginsburg.
Chalk up another success story for the Georgetown institute. Established in 1998, the Georgetown moot court uses former Supreme Court clerks, top-notch professors and private lawyers with plenty of experience to hear cases in a setting so close to the real thing that even the courtroom has been specially designed to mimic conditions at the Supreme Court chamber.
Though the room is much smaller, the intimate dimensions of the half-moon-shaped judges’ bench and lectern are carefully measured to approximate the real thing.
“I’m thinking about having a little sign made that says, ‘Do not adjust the microphone’—just like they have at the court,” says law professor Richard Lazarus, one of the institute’s founders.
The purpose, says Lazarus, who has argued some 30 cases before the Supreme Court, was to offer the kind of preparation that government lawyers traditionally receive from colleagues who critique arguments and fire questions they are likely to hear from the justices.
Lazarus, who has worked in the offices of the U.S. solicitor general and the U.S. attorney general, says that those opportunities are rare in the private sector. Especially lacking are the tough moot courts where smart people who know the issues as well as the arguing lawyers aren’t afraid to be brutally candid.
“We saw it as sort of a haves versus have-nots thing. It’s like baseball. You can take me to the stadium and tell me how the pitcher pitches, but until I get up to bat, we have no idea whether or not I can hit the ball,” Lazarus says.
Georgetown’s institute has grown by leaps and bounds since its inception, with lawyers coming from all over the country to practice—for their first, fifth or 50th argument —in a tightly controlled, completely private and utterly rigorous environment.
What makes Supreme Court moot sessions so important, Ayer says, is the high court’s trend in recent years to turn almost every oral argument into a question-and-answer session.
Since its inception, the institute has grown to the point where about two-thirds of all oral arguments taken before the Supreme Court get mooted at Georgetown first, according to Lazarus.
Unlike the in-house moots run by government offices and groups such as the National Association of State Attorneys General, Georgetown’s moot is strictly nonpartisan. “What makes our moots different is that we don’t take a philosophical position. Our people don’t come with baggage. We put liberals and conservatives together on a panel,” Lazarus says.
The panels hear only one side’s argument, so the institute schedules the sessions on a first-come, first-served basis. Trying to hear both sides would obligate Lazarus and other lawyers who run the moots to attend both sessions. They would find it hard not to give away accidentally some of the other side’s arguments.
“For us, it’s not about the philosophical issue in these moots. It’s about this lawyer and this client and making their best argument,” Lazarus says.
There’s only one strict rule: The moot sessions are not open to the public. In fact, the only audience ever allowed in are a few lucky Georgetown law students—and only with the express permission of both Lazarus and the arguing attorney. As a condition of attendance, students must agree not to discuss the moot outside of the courtroom.
One other rule that Lazarus enforces almost as strictly: Lawyers may not come to the institute for a moot session more than one week before their argument is scheduled in the Supreme Court. His panels expect lawyers to come ready—they only get one shot at an institute moot, just like they only have one shot with the court. Arguments last up to an hour, and are followed by an hour of critiques and debriefing by the panel of lawyers serving as justices.
“The questioning is so intense, there’s a huge premium on being able to respond quickly. A good answer 40 seconds later is worth nothing,” Ayer says.
BOTH SIDES OF THE BENCH
The institute’s moot court lets lawyers brainstorm concise, clear answers and practice delivering them instantaneously, says Ayer, whose law office is a few blocks away. He has practiced arguments at the institute, and he has been a panelist several times.
“I’d do it more often if they asked me. It’s fun and a real intellectual workout,” Ayer says.
So, just how valuable an experience is the Supreme Court Institute for lawyers preparing for the real thing?
“You see what impression your brief has made. It helps you focus and refine your argument based on the panel’s reaction,” says D.C. attorney Beth Brinkmann, who has argued 20 times before the Supreme Court, 18 times as a staff lawyer in the solicitor general’s office, and twice since she’s been in private practice. Both times she practiced at the Supreme Court Institute.
Arguing before the Supreme Court is different from arguing before a lower federal court, she says. In the lower court, you interpret the precedent in light of your facts and ask the court to interpret the same way. The Supreme Court, however, is concerned with the consequences of the legal rules it makes, knowing that it is making a rule of law for the whole country.
“In a lower court, your argument is, ‘This is what the law is.’ In the Supreme Court, you argue, ‘This is what the law is, and this is why it should be that way,’ ” Brinkmann says.
She likes that the panelists come prepared with pointed questions, just like the court members often do. Answering questions on the fly gives the lawyers practice in answering succinctly and then guiding the discussion back to their strongest points, she says.
“Moot court is where you realize this is really going to happen. It’s part of the emotional preparation—it makes it real and immediate when you have to actually stand up there and defend your argument,” Brinkmann says.
Brinkmann says the panelists accurately predicted that certain members of the court would ask particular questions. Because of her moot experience, she was prepared to offer solid, succinct answers each time.
Brinkmann, who clerked for former Justice Harry Blackmun after her graduation from Yale Law School, has also served as a panelist on institute moots. She says she feels a responsibility to thoroughly prepare by studying the briefs and preparing questions.
“It’s academically challenging—sort of an intellectual parlor game,” she says, echoing Lazarus’ assessment of why he almost never has trouble finding willing panelists.
Acting as a panelist has allowed her to see the strategy decisions other lawyers make about presenting their arguments, both in their briefs and in oral argument, she says. “To be honest, I think it’s a service to the Supreme Court. The institute promotes really prepared advocates who get to the meat of their issues efficiently and succinctly,” Brinkmann says.
That’s what drew New York City attorney Leonard Gerson to the institute last term, days before his first—and, so far, only—Supreme Court argument.
Gerson was impressed with both the panelists’ depth of knowledge on the bankruptcy issue he argued, and also with their modesty.
“They were very gracious. There was an utter lack of arrogance. They weren’t telling me what to do; they were discussing my issues with me,” Gerson says.
Gerson says he was impressed with the panel’s knowledge of his rather arcane issue: the applicability of the 11th Amendment in bankruptcy cases. Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004). (See “Debts and Taxes,” February 2004 ABA Journal, page 16.)
“It’s not that they’re predicting how the court will respond, but the intelligence of their questioning helps you see where your strengths are and focus in on your best points,” he says. In Gerson’s case, the court found no 11th Amendment state sovereignty violation occurred when a bankruptcy court considered the discharge of a student loan obligation owed to a state agency.
He says the session sharpened his thinking and helped him feel confident about following a hunch to reverse the order in which he argued his issues from the way he had presented them in his brief.
“It was the best way I could have spent my time. They have a contemporary knowledge of how the court works that is very valuable,” he says. Houston lawyer William J. Boyce also argued his first Supreme Court case last term, Grupo Dataflux v. Atlas Global Group, 541 U.S. 567 (2004), involving diversity jurisdiction.
The most important thing the institute did for him was help him develop a short and powerful opening. It disposed of minor issues and drove directly to the heart of his argument—that hundreds of years of precedent require federal diversity jurisdiction to be determined by the parties’ status at the time of filing.
Boyce learned of the institute from his wife, also a lawyer. When his case was granted certiorari, she mentioned that members of her firm’s Washington, D.C., office used the institute to prep for oral arguments.
He calls his moot “an intense grilling that was not particularly fun.” But he got what he wanted—a vigorous dry run of the real court experience.
He admits a few of the panelists’ questions caught him off guard, but thanks to the moot experience, he was able to spend the few days before his real argument thinking about tight, succinct answers to those questions, as well as polishing his answers to the issues he was sure would come up in court. “The judges were very prescient in the way they predicted the questions the justices would have,” he says.
During the discussion after his argument, the panelists helped Boyce talk through the best ways to quickly address questions he knew the court would ask and get back on track with his best points. The strategizing worked in the real argument, helping him focus on likely areas of attack. “It was a very good tune-up,” he says.
The court ultimately agreed with Boyce, finding in a 5-4 opinion that subsequent changes in the parties’ status did not alter the fact that the district court did not have jurisdiction because complete diversity of citizenship was lacking at the time the case was filed.
HELP WITH PLAN B
Not every lawyer who comes to the institute succeeds before the court. Lazarus says that from time to time, panelists provide a “soft landing” for lawyers whose arguments will probably not carry the day. Sometimes, what a lawyer needs is permission to go in and do his best, recognizing that he will likely lose.
It’s not that the argument isn’t as sound as it can be, Lazarus says. It’s that the issue is one on which the justices are unlikely to be swayed. Hearing this out loud in a safe cocoon like a private moot session frees the lawyer to look for the best possible solution for his client.
For example, in a criminal case, maybe it’s unlikely that the lawyer will win a new trial for his client, but he might successfully argue for a reduced sentence.
The panelists will help him make both arguments—for a new trial and for a reduced sentence in the alternative—and encourage him to see victory in a reduced sentence decision. This frees the lawyer from the weight of his potentially losing battle and lets him go into the real argument with more confidence, which ultimately benefits both him and his client, Lazarus says.
“I have no question that our advocates are much better in their arguments after moot, and that’s the bottom line.”
Margaret Graham Tebo, a lawyer, is a senior writer for the ABA Journal.
Margaret Graham Tebo, a lawyer, is a senior writer for the ABA Journal.