'Whatever You Do, Don't Look at the Clock'
Florida attorneys swap U.S. Supreme Court stories—from getting dressed down by Scalia to being the last lawyer to address Rehnquist
Published in 2020 Florida Super Lawyers magazine
on June 4, 2020
Updated on July 7, 2020
Tallahassee attorney Barry Richard has argued four cases before the U.S. Supreme Court. One took place in the midst of a scorching heatwave; another in a deep freeze; one was packed with visitors for an unrelated abortion case; another was empty save a handful of tourists. But he’s most famous for a case he didn’t argue in D.C.: Bush v. Gore, for which he was candidate George W. Bush’s lead attorney in 47 Florida state cases.
But he had to miss Ted Olson’s argument in the federal case before the U.S. Supreme Court. “We had two [unrelated] cases pending before the Florida Supreme Court,” he recalls. “We would get a call and somebody would say, ‘Be at the court in two hours for an argument.’ So I couldn’t take the risk of leaving Tallahassee.”
Of the six attorneys who spoke to Super Lawyers about their arguments before the justices, most celebrated after their arguments—certainly after their victories—with parties and adult beverages. Richard just went home. But he adds, “I don’t want to downplay it. It’s the Super Bowl for a lawyer. Very few lawyers have the opportunity to go at all.”
Barry Richard, Greenberg Traurig in Tallahassee; Business Litigation; Gustafson v. Florida, 1973; Gibson v. Florida Bar, 1991; Florida Bar v. Went For It, Inc., 1995; and Williams-Yulee v. Florida Bar, 2015: My first was back in the ’70s. Justices Black, Douglas and Marshall were still on the court. I did win all four of them.
Howard Srebnick, Black, Srebnick, Kornspan & Stumpf in Miami; Criminal Defense: White-Collar; Kaley v. United States, 2013; Luis v. United States, 2015: The legal issue litigated in the 2013 case actually started in 1988. How’s that for a long story?
Jeff Weiner, Jeffrey S. Weiner, P.A. in Miami; Criminal Defense; Florida v. Jimeno, 1991: Mr. [Enio] Jimeno was driving in a vehicle and [police] believed he was involved in a drug transaction, but they did not have probable cause. So they effectuated a phony traffic stop. Jimeno granted consent to search the car, but … police went immediately to a brown paper bag. Inside the paper bag, the police found cocaine and they arrested Mr. Jimeno. The trial court held this was a violation of the Fourth Amendment—because the consent granted was to search the car, not to search closed containers in the car.
John S. Mills, Bishop & Mills in Tallahassee and Jacksonville; Appellate; Clark v. Martinez, 2004: Daniel Benitez came over from Cuba on the Mariel boatlift as a young man in 1980. He had gotten in trouble in Cuba for literally stealing a loaf of bread for his family to eat—I think he was around 10. When he was living in South Florida, he had a grand theft [for] stealing a car stereo from a cousin. This prevented him from being able to adjust his status to lawful permanent resident. In a 1993 case, he pled guilty to robbery and firearms charges. He served his state sentence, and when he finished, the federal government picked him up at the jail and began a period of indefinite detention—not for committing a crime, just for being not lawfully admitted into the United States, even though the president, Jimmy Carter, had gone on the airwaves inviting any Cuban who wanted to come. He filed a handwritten petition in federal court saying it wasn’t constitutional to keep him locked up indefinitely. The 11th Circuit appointed me as his counsel.
Jeffrey Warren, Bush Ross in Tampa; Bankruptcy; Celotex Corporation v. Edwards, 1994: The case was incredibly challenging. It involved mass tort asbestos-related claims against Celotex arising from a merger with another company. We worked with lots of lawyers.
Mills: In the 11th Circuit, Judge Susan Black was always very kind at oral argument about recognizing lawyers who were handling cases pro bono. She said, “It looks like you might have a chance to go to the U.S. Supreme Court, Mr. Mills.” I said, “Hopefully, you’ll give me a chance to defend your good work there.” And they all chuckled. And a month later, we lost, three-nothing [at the 11th Circuit].
Srebnick: After my first year of law school, after getting rejected from a bunch of big law firms to be a summer associate, I got a job from a sole practitioner in Miami, and he had a case pending in which his ability to get paid had been affected by a judicial order. As a result, he was arguing the case in the U.S. Court of Appeals. I actually argued the case, because he could not attend the oral argument. The court allowed me to argue as a second-year law student.
Mills: I had this woman come into my office, just off the street. She told me that her son, Terrance Graham, when he was 16 years old, had tried to rob a Bono’s restaurant with some friends and they got caught. One of his friends had hit the manager over the head with a pipe. Terrance hadn’t injured anybody. He violated probation [for a different crime] when he ran from the police. The judge gave him life without parole. I told [Graham’s mother] we would be very interested in helping her, and we’d almost certainly lose at the state level: “Anytime anyone tells you [that] you can take your case to the Supreme Court, it’s a long shot, but I think there’s a shot here.” I quoted her a low fee and she agreed to try to raise it through fish fries and such. I had just hired Bryan Gowdy from another law firm. I told him, “I expect you to take this all the way to the Supreme Court and win it.” Kind of joking—half-joking. But that’s exactly what he did.
Bryan Gowdy, Creed & Gowdy in Jacksonville; Appellate; Graham v. Florida, 2009: It was one of the very first cases I took on when I transitioned from being a commercial litigator to trying to become an appellate specialist.
Mills: Some immigrants’ rights organizations approached us [for Benitez] and, to my surprise, urged us not to seek Supreme Court review. Their view was that this needed to develop further in the Court of Appeals, and if we took this case up to the U.S. Supreme Court, we were unlikely to win and it would be better to wait. I also got a bunch of phone calls from well-respected Supreme Court lawyers saying, “Good job. I’m ready to take the case over for you.” And I said, “Well, thank you … but I got this.”
Richard: I’ve always used a very short outline, like two or three words on a line. I’m always surprised when I see lawyers get up to argue before an appellate court and they have a big loose-leaf binder or papers stacked upon their table. I spend a lot of time in my head before an argument, arguing both sides with myself, and just thinking, riding a bike, walking. By the time I get there, I know it. The last time I was before the Supreme Court, I took an Uber, and I left my briefcase with my iPad [inside]. He drove off and I called and he said, “Yeah, I see it, I’ll circle the block and give it back to you.” I was standing in front of the Supreme Court [building] and he brought it back. What’s interesting is I never looked at it.
Srebnick: I did as many moots as people would do with me. I had my brother, who’s a criminal defense lawyer, available to work with me. My other co-counsel was a colleague from Georgetown from 30 years before. Basically, we put the band back together again from my law-school days.
Gowdy: It was a busy six-month period, from the day cert was granted until oral argument. I wound up working about 700 hours on Terrance’s case.
Weiner: I went to D.C. two days before the argument. We met with the Georgetown University law school people. I went back to the room and prepared 24 hours straight, no sleep, just studying and making out index cards with the cases, the key quotes, the pages. I rehearsed it to myself in the hotel room.
Warren: I sort of cabined myself in a hotel room. The only break that I really took—I went to the University of Florida on an athletic scholarship to play football, so I’m a huge Florida fan, so I did watch Florida play in an SEC championship game.
Mills: I looked in classified ads to rent a townhome on Capitol Hill. It was cheaper than any hotel and it turned out it was Tip O’Neill’s house, the former Speaker of the House. It was his widow’s home. We rented it from her.
Gowdy: We ended up having 14 amicus briefs. There were so many people calling, wanting to help. It was more than just writing the briefs, it was coordinating all these folks, which was like herding cats.
Srebnick: Every morning, I would listen to an oral argument from the Supreme Court from the website Oyez. I also went up to Washington the week before and sat through a couple of oral arguments in the court so I could really get a feel for the courtroom, for the voices of the justices.
The Day Of
Warren: I made the arrangements for my family and my mother and my brother and some of my mother’s sisters to come to the argument. For somebody like me, who grew up in a little town in North Florida, you don’t ever think of yourself making an argument to the U.S. Supreme Court.
Richard: They don’t allow cameras, but they have a group of sketch artists in the court, and you can hire them to do a sketch of your argument. The first three times I was there, I never did. The fourth time, I said, “I might as well do this.”
Mills: The argument right before mine was a case called Roper v. Simmons. My mother came to watch me. It was her proudest moment. Her son was arguing in the Supreme Court! She was sitting in the gallery and, as we were waiting, started chatting with a woman sitting next to her. And my mom said, “Oh, my son’s arguing the second case today.” And the poor lady said, “Well, my son was murdered by the defendant in the first case being argued.”
Srebnick: My parents are immigrants from Cuba. My grandparents are European immigrants who landed in Cuba. [For] my parents, it was an especially rewarding experience to watch their two sons—my brother was with me at counsel table—participate in the rule of law, coming from a lawless country
Gowdy: They only allotted four tickets to the advocate. I wrote the clerk and explained I was getting a lot of requests from family members and asked if I could have eight. He wrote back and said, “I have six.” That was a little bit of difficulty. My sister-in-law, mother, brother and father came; my uncle; one of my best friends from college. I found various ways to get more than six people in the door. There are all these people, you’re meeting and greeting them, but you’re getting ready to do this argument. But that all put me at ease.
Weiner: I got to argue before Thurgood Marshall and John Paul Stevens. Chief Justice Rehnquist ran the court and I argued against Principal Deputy Solicitor General John Roberts.
Mills: They tell you there’s a clock over the head of the justices and warn you: “Whatever you do, don’t look at the clock.” I did not. I had a watch.
Srebnick: I wanted to be very sensitive to stop talking when the justices started asking questions.
Mills: I was actually the last lawyer to address Chief Justice Rehnquist in court. He asked a series of questions that were not too friendly to our position. The clerk had warned us all ahead of time that the chief had some back problems and couldn’t sit for long periods of time. They said, “If, in the middle of your argument, he just stands up and walks out of the room, behind the curtain, don’t take offense—he’s stretching out his back, there’s a speaker back there, he’s listening to you, just ignore it.” Sure enough, he did that during our argument.
Weiner: In the argument before mine, a young lawyer was arguing, and the chief justice spun in his chair, stood up and walked behind the curtain. The lawyer simply stopped. Should he continue to argue? Should he wait? What should he do? It seemed like an eternity before Thurgood Marshall said, “Please
continue arguing,” and everybody in the courtroom laughed.
Richard: Appropriately, when you were facing the bench, Marshall was on the far left and Rehnquist was on the far right. Marshall asked me a question, I responded. Then he asked me a similar question later, and Rehnquist yelled across at him, “You already asked him that! He already answered it! Why are you asking him again?” And I’m standing there watching a tennis match.
Gowdy: The moment I stepped up to the podium—I don’t want this to sound the wrong way—I was completely at ease, because I was so prepared, more prepared than I ever would be again. There were a lot of people who knew me, so it wasn’t a strange place. And the justices weren’t that mean.
Weiner: It was a beautiful, majestic courtroom. I was surprised to see how close the podium was to where the justices sat. John Roberts was friendly, polite, couldn’t have been nicer—obviously, we were on opposite sides. I remember how it looked, how it felt; I remember the crowds, the artists drawing the courtroom and the lawyers arguing. It was really a special day. Until the decision came out. Then it wasn’t so special.
Srebnick: When I prepared my outline, if I had not been asked any questions, I would’ve been done in 10 minutes. I was actually praying for questions, because I was afraid that I’d run out of things to say in five minutes. Fortunately, by my stopwatch, the first question came out in about 45 seconds. The questions began and never stopped.
Mills: I was able to make all the points that I hoped to make. One of Rehnquist’s questions was: Couldn’t this be an act of war by Cuba? If they just dumped all their immigrants and emptied their prisons and dropped them on our shore, wouldn’t that be like an attack? [He] compared it to sending missiles. My response was along the lines of, “Well, Mr. Chief Justice, human beings aren’t missiles.”
Warren: The argument flew by. There’s no video of Supreme Court arguments, but there’s an audiotape, and one of my partners obtained it. Part of that tape was a really complex, aggressive question from Justice Scalia, who had a reputation for things like that. I’ve enjoyed, over the years, playing that for somebody, to get a sense of having someone very critically challenge what you’re saying.
Richard: I came up in the ’60s; I was in the hippie generation, so my hair was a little long. After the argument, I was in the coffee shop in the Watergate Hotel, and a woman who had a Southern accent said, “You made a good argument today, counselor.” I said, “Thank you.” She said, “I was surprised; I thought you’d be on the other side, from your appearance.” And I said, “Are you arguing today in a case?” She said, “No, Daddy is Justice Blackmun.” I said, “Well, if you have dinner with Daddy tonight, tell him you thought I did a good job.”
Warren: I remember being in mid-sentence when Chief Rehnquist said, “Case submitted!” and hit his gavel. It sounded like a cannon went off. I knew
to stop right in mid-sentence and just sit down.
Srebnick: I lost the first one. The chief justice was on my side. He dissented. It was an unusual alignment, because it was the chief justice joined by Sotomayor and Breyer, whereas Justice Ginsburg and Justice Kagan were in the majority for the government. I’m not sure that alignment has ever happened, before or since.
Weiner: After the arguments, numerous law professors and judges, including some justices from the Florida Supreme Court who just happened to be in attendance that day, all thought maybe we had a chance. Several of them came up and told me: “Jeff, I think we can save this case.” Well, we didn’t. I got two votes in our favor: Thurgood Marshall and John Paul Stevens.
Mills: We won that case, seven to two [in 2005]. Scalia wrote the majority opinion and Clarence Thomas wrote the dissent. Everybody says those two were lockstep and always on the same side—that was what I was told by all these groups that had been trying to dissuade me from taking it up.
Weiner: The issue was the Fourth Amendment, search-and-seizure protection for the public. It just didn’t happen that day, and unfortunately, there are more and more cases in which the Fourth Amendment is chipped away, exceptions are made and law enforcement has more authority.
Srebnick: Won the second one. March 30, 2016. My 52nd birthday. Best birthday party I’ve ever had.
Mills: I think we drank a bunch of rum. That may have been around the time we started a regular routine when we win a big case—Gosling’s Black Seal rum. It’s from Barbados. I went to a law school program in Barbados, and that’s where I picked that up.
Warren: I was at our offices, and I think the walls are still reverberating from the loud exclamation.
Gowdy: We did win! I think I picked my kids up from school that day and they didn’t know any the better. Inside, I felt good.
Mills: There is one real sad postscript. I thought [Benitez] was a wonderful person who had persevered. He became an electrician’s apprentice. Six months after his release [on parole in late 2004], he was on the job one day, up on a pole, and had a heart attack and died.
Richard: I’ve spoken to classes more than once, and one of the things I tell them is that you need to have the highest respect for the institution; but as far as the individual justices, these are the same lawyers that, before they got appointed, were doing what I’m doing. They’re the same lawyers that I would encounter at gatherings. They’re just people.