The Supreme Thrill
Meet seven lawyers who have appeared in the Super Bowl of law
Published in 2007 Pennsylvania Super Lawyers magazine
By Bill Glose on May 25, 2007
Richard Tucker was cut off mid-sentence, and John Krill’s son was prodded with a pointer.
Nancy Winkelman was reminded of a dance, and Robert Graci of a sporting event.
Arguing cases before the United States Supreme Court affected each of these Pennsylvania lawyers in different ways. They all agree, however, that they will cherish the experience for the rest of their lives.
Nancy Winkelman: Schnader Harrison
Nancy Winkelman went to the U.S. Supreme Court representing a prisoner, pro bono, who wished to bring a civil rights action against the prison in federal court but could not do so before first exhausting the prison’s grievance process. She challenged the wording of the Prison Litigation Reform Act, which governs this rule.
Winkelman had appealed numerous cases to the Supreme Court before and was familiar with the Court’s automated response system. “You punch in the docket number of your case,” she says, “and a voice will say, ‘Certiorari was denied,’ because certiorari is always denied … but that morning I will never forget. I was in a meeting and one of my colleagues came running in at 10:15 and he said, ‘Cert was granted.’ I thought he was kidding. I had to call to hear it myself and my hands were shaking so much I couldn’t even dial the phone. My colleague had to dial it for me. It took me probably about a week just to stop shaking.”
Winkelman was still nervous on the morning of her argument. Not only had the Solicitor General weighed in on the side of the respondents, but 48 states and two territories had also signed an amicus brief against her position.
The amicus brief wasn’t her only surprise. “The Supreme Court is much smaller than I would have expected,” Winkelman says. “It has a much closer, more intimate feel than any court I’ve ever been in. … The protocol—it’s almost like a dance. It’s all very scripted and you need to know it. You need to know where you’re supposed to sit and when you’re supposed to stand up and how you’re supposed to address the Court. I’m used to arguing before three-judge panels; it’s very easy to keep eye contact with three judges. With nine justices, you can’t keep them all in your frame of vision. When you’re in the Court, you’re very close. It’s not like the justices are far back and high up; they’re right there.
In the end, the Supreme Court sided with the respondents 9-0. But that didn’t tarnish the experience for Winkelman. “After the argument was over, I went to the opposing counsel and shook his hand and said, ‘That was really fun,’” she says. “And that’s how it felt. It was a real high.”
Richard B. Tucker III: Tucker Arensberg
When Richard Tucker appeared before the Supreme Court, he argued that a diversity case filed in federal court involving a statute of limitations in one state should remain in effect when the case is transferred to a new state. To prepare for the argument, he visited the Court the week before to familiarize himself with the protocol.
“That was very helpful,” Tucker says. “It’s nice to know what is going to happen and whether they’re likely to ask questions, which they obviously are. Just getting your bearings [is important], so that’s not something else you have to worry about when you appear.”
The visit readied Tucker for the aggressive questioning he was about to endure. “I think I only got out my name and who I represented before they started asking questions,” he says. “It was almost immediate. The questions continued almost the entire half hour … I had an outline of what I was going to say, but there were only a couple of times I had a chance to get back to the outline and make a particular argument, and then the questioning started again. I remember vividly that the [30-minute] time limits were absolutely and totally enforced. The chief justice at the time was Chief Justice Rehnquist … and right in the middle of a sentence he said, ‘Thank you, Mr. Tucker. The next case on our docket is …’—I didn’t even get a chance to finish my sentence.”
Fortunately, he didn’t need to. The Court sided with him 5-4.
Peter Goldberger: Law Office of Peter Goldberger
Peter Goldberger handled the appeal of a client convicted of selling heroin. The point of law he argued was whether the post-release provisions of the Anti-Drug Abuse Act of 1986 became effective when the president signed it into law or approximately one year later, which would have eliminated his client’s mandatory minimum sentence.
“Coincidentally,” says Goldberger, “this case was coming up for argument shortly after my 15th law school reunion—I went to Yale, class of ’75. I invited all of my classmates who had worked for the Solicitor General or clerked on the Supreme Court or argued in the Supreme Court and might be coming to this reunion, and suggested that we get together at the reunion and do a moot court … One of them was my law school classmate, Sam Alito, and he was on my moot court … I gave an argument modeled on the points as I had focused them in my reply brief, and [the moot court] destroyed me; they completely destroyed my argument, which was great … they really helped me change my reply brief to make [it] better. Judge Alito, now Justice Alito, who doesn’t talk a lot, I remember very clearly the advice he gave me: ‘Don’t try to tell the first joke.’ That’s what he said. It’s not proper protocol. Don’t make a joke unless they give you permission to joke by asking a question that is a joke.”
Without the moot court preparations, Goldberger says he would not have known a Latin phrase that came up during trial. “I’m starting to give my argument and Justice Scalia says, ‘Wouldn’t you say the best argument for the other side is probably …’ and then he recites this maxim in Latin and doesn’t give any other explanation of the question,” he says. “It’s something that isn’t in any of the briefs and he’s asking the question in Latin and I had an answer ready. I recited a different maxim in Latin that implied the opposite conclusion in our case, which was what I planned. So, contrary to Justice Alito’s advice, I kind of turned Scalia’s question into a joke in Latin. He loved it! He cracked up and he spent the rest of the argument defending me from Justice Kennedy and Justice O’Connor.”
Though Justice Scalia protected him during argument, he didn’t side with him in the opinion. The Court voted against Goldberger 9-0.
Paul D. Boas: Attorney at Law
Paul Boas brought home a couple of keepsakes from his Supreme Court argument but has since lost track of them. “They give you these quill pens,” he says. “Sitting up on counsel table as you argue are these two little feather pens that you get to take as souvenirs. I don’t know where they are now. I might have one somewhere. I think my dog chewed up one of them.”
Boas represented a client who challenged a law banning anyone convicted of a felony from owning a firearm. Boas’ position was that the ban shouldn’t apply in this case since his client’s prior conviction was in Japan.
Before Boas’ argument, the Supreme Court clerk explained how to reserve time for rebuttal. A green-white-red light set in the lectern informs litigators how much time remains in their arguments: Green means go, white means five minutes remain and red means they’re done. He recommended that litigators wait for the white light, finish their current response and then say, “If there are no further questions, I would like to reserve the remainder of my time for rebuttal.”
“So I’m arguing,” Boas says, “and there’s a clock up on the wall, but you’re not supposed to look up at the clock; that’s sort of rude. I’m arguing and I’m answering questions and all of a sudden I notice the light is on. And I say, ‘If there are no further questions, I would like to reserve the remainder …’ and as I’m saying that, it turns red. It had been on for like four and 2/3 minutes, and I just hadn’t noticed. And as I said that, acting Chief Justice Stevens said, ‘It’s too late. You’ve used all your time.’”
Though dissatisfied with his clock management, Boas was pleased with the ruling: a 5-3 decision in his favor. Chief Justice Rehnquist did not participate due to poor health.
John P. Krill Jr.: K & L Gates
In 2004, John Krill successfully defended a challenge to a congressional redistricting plan. “The case came out favorably for my clients,” says Krill. “We did not get the brass ring in terms of getting the ruling we had sought—that [partisan gerrymandering] was non-justiciable, period. But we did get a plurality opinion to that effect, so I was pleased with the outcome. It was a fun case, fun from start to finish.
“I enjoy the dialogue that you can have when judges and justices are as interested in the legal issue as you are. To me, that’s what oral argument should be about. It shouldn’t be about sticking to a script … You’re listening as much as talking … It’s more like having a conversation than a scripted play … I really prefer to have a question to deal with, because that’s the only way to really address the concerns they have. If you’re making a scripted oral argument, you never know whether you’re pushing the right buttons.”
The justices’ buttons weren’t all that got pushed that day. “My younger son was there with my wife,” Krill says, “and he nodded off during the argument that preceded mine. One of the marshals came up with a stick, like a wooden pointer, like the sticks the nuns used when we were in Catholic school, and prodded him with the pointer to wake him up.”
Carl D. Buchholz III: Rawle Henderson
Carl Buchholz represented Birkdale Shipping Company in a case meant to resolve a split in the circuit courts regarding liability for conditions aboard ships. Some circuits ruled that ship owners are liable for the unseaworthiness of their vessels and negligence of foreign loading stevedores while other circuits ruled that ship owners are only liable for their own negligence. Buchholz argued for the latter position.
“It was a pretty limited issue,” Buchholz says. “I think the Supreme Court, maybe once a year, hears an admiralty maritime case. Part of my attitude going into it that made it easier for me was recognizing that and the fact that I had practiced maritime law for about 20 years. How difficult it must be for the Supreme Court to hear so many different types of cases only once every year or once every two years and be expected to be knowledgeable, whether it’s antitrust, admiralty, civil rights; it’s pretty impressive, the job they do.”
During argument, Justice Scalia took a lot of time with a line of questions about whether actual knowledge of a hazardous condition could be established by expert testimony. “In response to three or four of these same questions following up on each another, I said, ‘Mr. Justice, you can’t prove actual knowledge by expert testimony. You can prove it by circumstances—somebody saying they saw the longshoremen looking at it or a crewmember admitting he knew it—but you can’t have experts come in and say, ‘In my opinion he must have seen it.’ … At about the fifth question, out of the clear blue, while I’m looking down at my notes thinking to myself, how far do I go with this, I hear someone else from the Court say, ‘That makes no sense at all; that’s the craziest thing I ever heard.’ And it was Chief Justice Rehnquist telling Scalia that his question didn’t make any sense. I remember thinking at the time: ‘There is a God!’ And that quickly shut Justice Scalia down from that line of questioning. The rest went very well because it was a 9-0 decision several months later in favor of the ship owners.”
Robert Graci: Eckert, Seamans, Cherin & Mellott
Robert Graci defended Pennsylvania in a habeas corpus petition by a prisoner who alleged his confinement was unconstitutional. The prisoner had been convicted along with another individual, but their appeals were heard in different courts, and the other prisoner’s conviction was reversed.
“Justice Scalia asked me if there was a certification procedure under the Pennsylvania rules of procedure,” Graci says, “that would allow the U.S. Supreme Court to certify this question to the state so that they would address it first as a matter of state law. The Pennsylvania Supreme Court had adopted a certification process a couple of months before I argued the case, and I said, ‘Your Honor, I know that we have one, but it’s brand new and I don’t know how it works.’ Well, they figured out how it worked in relatively short order and ended up certifying the case to the Pennsylvania Supreme Court.”
Graci then briefed the case before the Pennsylvania Supreme Court, which decided the prisoner was entitled to the new decision, and the U.S. Supreme Court issued a per curiam opinion vacating the conviction. “Once the state Supreme Court answered the question they wanted answered,” Graci says, “I knew that there was no way that I could possibly win.”
Though he didn’t win his case, Graci has fond memories of the Court. “When you’re in the state Supreme Court, I think everybody believes it’s like being in the playoffs. But when you’re in the United States Supreme Court, you’re in the Super Bowl or the World Series. It really is a momentous occasion in the life of a practicing attorney. There aren’t that many people who get that opportunity. And when you get it, boy, it is a lot of fun.”
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