Wednesday, January 26, 2022
Two members of our five-member state supreme court recently announced their retirements. One of my colleagues remarked, "it's going to be a very different supreme court without those two." That got me thinking about how much court membership shapes written and oral advocacy. I decided that it affected writing somewhat, but not much, and that it had a greater effect on oral argument preparation.
I think the composition of an appellate court affects briefing only marginally--maybe 5-10%. Good legal writing and analysis are essential whoever your court members are, and it's going to appeal to them whoever they are. If there is substantial turnover in a short time, then the new members might be more open to overturning precedent that they had no hand in making, which could affect whether you ask for that. And the way you phrase an argument or what you emphasize might depend a little on who the judges/justices are. But overall, I think court composition has little impact on the written product.
It's different with oral argument. I have noticed that changes in court composition substantially affect my oral argument preparation. To be sure, there are certain indispensable aspects of preparation that do not depend on the precise audience--you're going to have to know the relevant cases, the record, and the crux of your and your opponent's positions. But I've found that with changes in court personnel come changes in my brainstorming questions and in what I emphasize at argument--maybe 25% of what I do. After appearing in front of a judge/justice a few times and reading their opinions, you get a sense of what is important to them, and what their concerns are likely to be. Is this an empathetic judge? A strict textualist judge? One with an academic bent? What do they care about? What persuades them? Those caricatured personalities are very helpful in brainstorming questions, as my inner judge/justice-so-and-so raises concerns as I review my argument. And I've found that the better I'm able to understand the judge/justice, the better conversation I'm able to have with them--and hopefully, the more persuasive I'm able to be.
Setting aside SCOTUS practice (which is somewhat its own animal), how have changes in your appellate court personnel affected your written and oral arguments?