Impressing Your Mentor
After graduating first in her class from Columbia Law School, Laura W. Brill had the opportunity to clerk for Justice Ruth Bader Ginsburg. Years later, when a colleague brought her the case of Pasquantino v. United States, which questioned the government’s right to prosecute for wire fraud based on schemes to evade foreign taxes, she jumped at the chance to take the case before the Supreme Court—and did so pro bono. At the court, she had the honor of arguing before the justices and, especially, before her former boss and mentor.
“There was a certain excitement to appear in front of a justice who you have such an affinity for and a personal relationship with,” says the Irell & Manella partner. “It added a nice element.” Though the justices ultimately decided 5-4 against her, Brill says she found satisfaction from at least one of the justice’s votes. “[Ginsburg] ended up writing the dissent, so it was gratifying that I had at least persuaded her.”
Brill’s case also came at a time when there was a cloud hanging over the normally genial justices.
“[Chief] Justice William Rehnquist was ill, so he wasn’t there, and there was a real sense of sadness on the court,” Brill says. It was November 2004; Justice Rehnquist passed away the following September.
Still, Brill says it was a rewarding opportunity.
“It is a great exercise to try to convince a very skeptical audience on a very important issue,” Brill says.
Defending Anna Nicole
Before Kent Richland got his supreme judgment, he had to suffer more than one supreme embarrassment.
Prior to his argument, Richland took the time to greet his family, friends and the members of the press who had gathered to watch. But he was so wrapped up in the pre-argument excitement that he missed one essential step.
“My zipper had been down the entire time,” Richland says with a pained chuckle. “I had to figure out how to adjust it without anyone noticing, and in the end I don’t think anyone did.”
Including his client, Vickie Lynn Marshall, better known as Anna Nicole Smith. Richland represented the ex-Playmate and reality TV star as part of her battle with her late husband’s son over the deceased billionaire’s fortune.
Richland’s wardrobe malfunction wasn’t the only thing that went wrong that day. While seated at the table, mere meters from the custodians of the Constitution, Richland reached into his pocket to get a pen, and came out with a handful of ink.
“I didn’t want to touch anything because I was afraid I would ruin something that had been there for 150 years,” Richland says.
Luckily the assistant solicitor general at his side noticed Richland’s predicament.
“She is a mother, so she had some Purell and Kleenex in her bag,” Richland says with a laugh.
All this before the argument even began. Once Richland launched into his 20-minute address, Justice Antonin Scalia immediately threw a wrench into his central argument.
“He said to me, ‘Do you think that you might have a narrower position you may want to argue, a position that might actually have a chance of winning?” Richland says, adding that the barbed comment carried with it a ray of hope. “I did have [a narrower position]. So there was a hint at a chance that I could win.”
Despite additional obstacles, the ultimate outcome was a favorable one. Which meant a happy Richland, and a happy client.
“I went back to see [Smith] after the argument,” Richland says. “She just hugged me and said thank you.”
Naysaying the Naysayers
Lee Paterson could have used a little more support while preparing for his first and only case in front of the Supreme Court in 2003.
“The pundits and naysayers came out of the woodwork,” says Paterson, whose case questioned whether the opinion of a treating physician created a rebuttable presumption in favor of the employee in ERISA disability insurance plan benefit determinations.” “I got phone calls and even gratuitous remarks when I argued other cases. Everyone wanted to tell me how I was going to do on the case.”
And the calls weren’t limited to Paterson.
“Flack hit my client,” Paterson says. “They called and said, ‘You know Paterson isn’t competent; he’s a minor leaguer. You should dump him and hire me.’”
But all the ballyhoo made his victory that much sweeter.
“We went 9-0 and that ended that,” Paterson says. “After the decision, there was a great silence from the former critics.”
Though Paterson may have lacked support outside of the courtroom, he attributes part of his winning performance to the thoughtful treatment he received from the clerks and justices of the court.
“The clerk of the court bent over backward to make sure we understood things and that we knew what services were available to us,” Paterson says. “You don’t want to be the rube who just came in from the prairie, but they go out of their way not to make you feel that way. They want you to do the best job that you can.”
The positive treatment inspired Paterson to make a move he says he would have never done in regular court. As Justice Ginsburg grilled Paterson’s opponent on the contents of a document, the court watched as the attorney fumbled for his misplaced copy. Instead of allowing the embarrassing scene to continue, Paterson simply grabbed his own copy and handed it to his opponent.
“I was affected by how far the court had gone to help me,” Paterson says. “It was the right thing to do.”
Fighting for Johnnie
The last place Jonathan Cole, a professional liabilities attorney, ever thought he would find himself was arguing a complicated constitutional rights case in front of the Supreme Court. But Cole represented the late Johnnie Cochran, and in 2005, the attorneys found themselves entangled in a First Amendment fight with Ulysses Tory, a former Cochran client.
“It was incredibly intense and stressful, but exciting as well,” says Cole, who studied First Amendment law in excess of 200 hours to prepare for the case.
Tory had taken to picketing outside Cochran’s office because, he claimed, Cochran refused to pay him money he was due. Lower courts found in favor of Cochran, placing a broad injunction against the former client that prevented him from making any speech, written or oral, for or against Cochran. Tory, represented by First Amendment expert Erwin Chemerinsky, argued that the ruling was a blatant use of prior restraint, and took the case to the Supreme Court.
Despite his lack of experience with First Amendment law, Cole says the argument went well, and only Justice Stephen Breyer was really able to temporarily shake him.
“I couldn’t answer [Breyer’s] question and he said, ‘Well, I will give you the answer,’” Cole says. So Breyer answered the question for him, leading to a round of laughter in the Court.
Unfortunately, Cochran passed away only a week after the argument, and the justices decided against Cole and Cochran 7-2, writing in the opinion that with Cochran’s passing the judgment became moot.
“Going in I was told I was going to lose 9-0, so I will take my 7-2,” Cole says. “And if Johnnie hadn’t died, I think I would have won this thing, but I don’t know and we, unfortunately, will never know.”
Helping Holocaust Victims
“I don’t know what the statistics are, but I think when the Supreme Court takes a case, it is more often than not because they don’t agree with the court of appeals,” Frank Kaplan says. “There is always that risk.”
Which is why Kaplan suspected that he was fighting an uphill battle. He had won in the 9th Circuit Court of Appeals representing the state of California against insurance companies. California had adopted a statute demanding that insurance companies disclose the names of the Holocaust victims who may have held claims. Since many Holocaust survivors were children, they had no knowledge of their family’s insurance policies, and many claims went uncollected.
Once the sides were drawn, it was the insurance companies backed by the U.S., Swiss and German governments, versus Kaplan and 51 members of Congress, 13 states and Bet Tzedek, which provides free legal services to seniors. Kaplan began preparing and, though he felt good with the argument, he was not optimistic about the outcome.
“The press reports we read seemed to lean toward their side,” Kaplan says. “Since [the Supreme Court reporters] watch so many cases, I figured they would have a good idea of how it would go.”
Despite countless hours of preparation, the decision came out against Kaplan, but he says there were a few positive aspects to the judgment.
“It was much easier that it was 5-4,” Kaplan says, adding that the four who decided for him included the two most conservative and two most liberal justices. “It taught me that we had made some convincing points and we had convinced some of the smartest people on the planet that we were correct.”
And Kaplan’s team was still able to help many of the survivors who never saw a penny of their relatives’ claims. During the arguments, the insurance companies had to bend over backward to prove to the court that they had planned to release the names all along, and that the statute wasn’t necessary.
“I think the insurance companies disclosed a lot more information than they would have as a result of the case going so far,” Kaplan says. “It ultimately benefited a lot of people.”
The Kindest Justice
The key to a Supreme Court argument is “preparation, preparation, preparation,” says Paul Hoffman, who has appeared in front of the court in some capacity more than 20 times—many of the cases dealing with the complex issues of international and constitutional law.
But no matter how many times you appear before the justices, Hoffman says, your first time will always stick out from the rest.
“The first time what you are really worried about is making a horrific mistake and the earth just opening up underneath you and swallowing you into lava or something,” Hoffman says. His own first experience was made more terrifying because he was arguing against Ken Starr.
“I was more relaxed by the second argument,” he says. “You get more a sense for the dynamic of the court and realize the justices are asking questions as much for themselves as they are for you. And you get a sense of the importance of moral advocacy at that level, and it actually gets more enjoyable.”
Some of the justices seem to add to the amiable atmosphere of the court more than others.
“Justice [John Paul] Stevens is always so kind to the advocates,” Hoffman says. “If all the judges were like him, it would be a pretty pleasant experience.”
Chief Justice Rehnquist, on the other hand, referred to one of the arguing attorneys in a case before his as the “singularly most unprepared lawyer” that had ever appeared before the court.
“After I saw that, I really expected lightning bolts to come down on me,” Hoffman says.
Fortunately Hoffman did not suffer the same fate as the berated barrister. He admits that it gets easier and says there is no better experience for any attorney.
“There is nothing I have done in law better than arguing up there,” he says.