Wednesday, September 20, 2017
I'm thrilled to join the team at the Appellate Advocacy Blog. I am, literally, a professor of appellate advocacy; I teach and direct the Ilana Diamond Rovner Program in Appellate Advocacy at IIT Chicago-Kent College of Law. I will post about oral argument, psychology and persuasion, snappy legal writing, and other things that fascinate me about appellate courts and the stuff lawyers do to move them.
In an especially excellent episode of the always-great First Mondays podcast, Dan Epps and Ian Samuel interview Lisa Blatt of Arnold & Porter Kaye Scholer (the interview begins at about the 33:30 mark). The interview is full of useful insights about appellate advocacy, particularly oral argument preparation. And it helped me wrap my mind around Blatt's 33-2 record in argued SCOTUS cases; she is brilliant and self-aware, and she has crafted an advocacy style and preparation process that play to her strengths.
The coolest exchange in the interview is about a snippet in the Supreme Court's Guide for Counsel (pdf):
Know your client's business.... For an excellent example of a counsel who was intimately familiar with her client’s business, see the transcript of argument [pdf link] in United States v. Flores-Montano, 541 U. S. 149 (2004). The case dealt with the searching of vehicle gas tanks by customs agents at an international border. Government counsel had a total grasp of why and how the agents conducted the searches and provided convincing explanations to all questions posed by the Court.
The Guide nails it. In the interview, Blatt details how and why she acquired such expertise: she traveled to a U.S. Customs facility in Virginia to immerse herself in the nitty-gritty of border searches; she worked with agents as they took a gas tank apart; she learned reams of out-of-record information touching on the issues of drug trafficking and border searches; she does this to develop deep empathy with—and to better channel—her client. It's a great story.
And speaking of story: Blatt's command of the information lets her tell a full and convincing story to the Court. As the audio recording of the Flores-Montano oral argument makes clear, her well-packaged explanations of gas-tank searches and border crossings and "wonderful pieces of equipment" that let officers probe upholstery without leaving a mark do more than establish her credibility as a Knower of Many Obscure Things. They help vividly tell the legal story that matters in the case. The issue, after all, was whether customs officers must have reasonable suspicion to remove, disassemble, and search a vehicle's gas tank for contraband. In the all-things-considered Fourth Amendment stew, the details matter. The details linked to law persuade (and one detail made it into Justice Breyer's concurring opinion). And the whole package makes for a nifty object lesson in world-class advocacy. Listen if you can.