The Supreme Thrill

Three attorneys share their experiences in front of the nation’s highest court

Published in 2006 Oklahoma Super Lawyers magazine

By Kathryn DeLong on November 7, 2006

For most general practice attorneys, appearing before the Supreme Court is a once-in-a-career experience, if it happens at all. Mostly, it’s due to luck — being involved in a case that interests the Court. “Any lawyer dreams of practicing before the United States Supreme Court,” says Karen L. Long of Rosenstein, Fist & Ringold. “It’s almost every lawyer’s dream come true.”

The actual time spent in the impressive courtroom may whiz by, but the satisfaction of reaching a career milestone persists long after the big moment has passed. Even when the majority opinion doesn’t go their way, as is the case with two of the three following Tulsa attorneys, lawyers find the Supreme Court experience to be personally fulfilling. Here’s why.
James C. Lang remembers his experience in 1992 as “up close and personal” with the justices. Prior to his appearance before the Court, he had heard that the oral arguments would be more of a conversation with the justices than a presentation of facts. That proved to be true.
“I really felt very comfortable before the Supreme Court,” recalls Lang, a founding member of Sneed Lang. “You’re much closer to the bench than you are in most courts of appeal. It’s a bit unusual. There are nine people in front of you. You have to be prepared for questions from any of the nine. Being so close, you’re moving your head back and forth listening to questions.”
In his 42 years as an attorney, he has argued before different courts of appeal throughout the United States. A lot of times, he says, the Circuit Court judges play the devil’s advocate — building up one side of the case when in fact they might be leaning toward the other side. With the Supreme Court justices, it’s much easier to tell from the tenor of their questions which justices are for you or against you, says Lang.
In his Supreme Court case — United States v. Williams — the issue was whether the government prosecutor had an obligation to present to the grand jury evidence tending to prove the defendant’s innocence. “We won at the district court level and won at the 10th Circuit Court of Appeals. We lost five to four in the Supreme Court case.” The majority opinion, which was written by Justice Antonin Scalia, held that the government prosecutor did not have the duty to present exculpatory evidence. Justice John Paul Stevens wrote the dissenting opinion. “Justice Scalia asked the hardest questions. I thought he would have ruled in favor of the government just by virtue of his questions,” says Lang, who also could tell from Justice Stevens’ questions that Stevens would rule in his side’s favor.
Preparation for the oral arguments is similar whether it’s for a circuit court or the Supreme Court. “You review cases and briefs, anticipate questions you will be asked. The United States Supreme Court justices ask more questions and more incisive questions if for no other reason than there are six more of them than on the circuit court.”
He had an adrenaline-filled half-hour to make his case before the justices. Afterward, “I was pleased with the questions and my ability to answer them.” Still, he says, “It was nice to have it over with because there’s so much time spent preparing. It’s a highstress 30 minutes in front of such an august body.”
How rare is it for a lawyer from Oklahoma to argue before the U.S. Supreme Court? Graydon Dean Luthey Jr. of Hall Estill is happy to answer that question. “Look at it this way: There are 70 cases a year that are usually heard. A large number involves a branch of government, oftentimes represented by government lawyers on the federal, state or local level. If it’s private litigation, there are prominent national firms that have active Supreme Court practices.” So, he concludes, “the chance of a private lawyer in Oklahoma to get the opportunity to argue before the Court is fairly limited. It doesn’t have anything to do with talent. It’s all based on luck — the court agreeing to hear your case. For people like us, it’s a once-a-career type of thing.”
Luthey prepared mightily for his appearance before the Court on Oct. 2, 2001. “I worked on it intensely for a month before.” As part of the preparation, “you tend to reflect more on the individual legal philosophies of the justices,” he says. “You have access to their writings. You’ve got to read every opinion that has any possible relevance to your case.
“You identify a few themes you want to put across,” he explains. “You identify questions you think you are likely to get, and you work out answers to those questions. This provides you the opportunity to be responsive and at the same time reinforce your theme. I came up with a lot of questions I thought I might be asked and a list of questions I hoped I wouldn’t get.” And, yes, he was asked some of those too. “I worked on preparing answers: a short answer of 15 to 20 seconds, a little longer answer and a more in-depth answer, to be prepared to use as circumstances arose.”
Luthey argued on behalf of the Chickasaw and Choctaw tribal governments. The issue in Chickasaw Nation v. the United States was whether, under the Indian Regulatory Gaming Act, proceeds from pull-tab gaming should receive the same exemptions from federal gaming excise taxes that are enjoyed by state lotteries. The Court found that the tribes would not enjoy the same exemptions. “We didn’t win. We got two votes, seven to two,” he says. Nevertheless, “it was a good experience. It was certainly challenging and intellectually stimulating.” After it was all over, “I was pretty worn out [but] I enjoyed it.”
Karen Long has been in the hallowed chambers of the U.S. Supreme Court twice in her life. The first time was in 1983, when her then-husband, Art Angel, served as one of the lead attorneys in the famous Karen Silkwood case concerning the liability of nuclear facilities. Although Long had given birth to her daughter just three weeks before, “I could not miss the opportunity to watch that case,” she says. “I remember being just awestruck by so many things.”
It’s not the size of the room that’s so imposing. “It’s actually a very small courtroom,” she says. “It’s awe-inspiring in part because it is very regal,” imbued with the “sheer majesty of years of history.”
She returned to that majestic courtroom in 2002, as one of the attorneys representing the Owasso, Okla., school district. Owasso Public Schools v. Falvo focused on whether the common practice of peer grading (students grading each others’ quizzes and other assignments) violated 1974’s Family Education Rights and Privacy Act, known as FERPA, which prohibits the release of education records without parental consent.
Much to the relief of educators across the country, the Supreme Court reversed the 10th Circuit Court of Appeals’ decision that the practice constituted a violation of FERPA. Can you imagine? Long muses. “If you’re going to treat even a quiz as a record that’s protected the same as an official transcript, it would be very destructive to a lot of schools.”
Long, who was the lead attorney in the case, sat at counsel table two, right in front of the justices. “If I had leaned over slightly and Justice O’Connor or Justice Thomas had also leaned over, we could easily have shaken hands. That’s how close you are to the sitting justices.”
Long didn’t present the oral arguments before the court; that was handled by her co-counsel, Jerry Richardson. Nevertheless, she derived enormous satisfaction from the experience. “There’s no greater thing,” she concludes, “than having the United States Supreme Court issue an opinion that validates the legal position you have taken on behalf of a client.”

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