Thursday, September 26, 2019
The second podcast in the SCOTUStalk series on oral advocacy featured William Jay, a former assistant US Solicitor and current partner at Goodwin. He has argued 17 cases before the Supreme Court and is a former clerk of Justice Scalia.
This podcast is full of practical tips for the appellate advocate. In response to questions from Amy Howe of Howe on Court, Jay described the differences between lower court practice and the nation's highest court. A seemingly obvious observation, but one not often discussed, was the dynamic that at the Supreme Court the advocate always faces the same nine judges. In the lower courts an advocate might not know who is on the panel until the morning of the argument. At the Supreme Court, this gives an obvious advantage to allow an advocate to be knowledgeable about each justices' prior written positions on the issue. Further, knowing the justices' questioning style is helpful. Jay characterized Justice Scalia as a questioner for whom he never had to guess his opinion, but also knew he was open to persuasive arguments.
In preparation for his appearances at the Court, Jay conducted at least 2-4 moot sessions. He points out that as a government attorney, he had access to agency expertise and heavily used those resources. As a new attorney arguing for the government he remarked that the cases given to the newbies were either 9-0 winners, or 9-0 losers. He is not sure whether his first tax case was supposed to be a winner or a loser, but he was up against a formidable lawyer who later became a federal judge herself.
Jay said the hardest kinds of questions to answer are the "line drawing questions" - those questions where the justices keep presenting hypothetical like "it is 2 years, 3 years, 4 years?" He states that for those questions the best way to answer is have some limiting principle in mind, to anticipate these hypotheticals, and to have potential exit strategies. Jay says that one mistake new advocates make is that they think they can decisively direct the flow of the argument. Never tell the Court "I'll get to that," or, "That is not this case."
On rebuttal he discussed the competing philosophies of whether one should make a glancing blow at a primary issue, or take the knock out to a tertiary issue. He came down on the side of attacking the primary issue even if the strike is not as spectacular as another lesser point that might be made.
A final bit of advice was to the substance of the oral argument. Jay said that the presentation of the argument should be the substance of the brief, but stated differently. Think of the thematic points, where to start the argument, and the absolute 2-5 things that must be said.