The Supreme Thrill

Seven Georgia attorneys talk about arguing before the High Court

Published in 2008 Georgia Super Lawyers — March 2008

Michael Wolensky was exhilarated, Emmet Bondurant stunned. Paula Smith had to push her way in, while David Walbert didn’t even want to be there.

And W. Warren Plowden Jr. was warned the chief justice would walk out on him.

Arguing cases before the U.S. Supreme Court impacted each of these lawyers in distinct ways. They all agree, however, that they will cherish the experience for the rest of their lives.

Laurie Webb-Daniel / Holland + Knight

Laurie Webb-Daniel familiarized herself with the way the Supreme Court operated before she argued her case. “I went up and visited and sat through arguments about a month beforehand,” she says. “I talked to people who had argued there and read everything I could as far as what’s expected. I typically will have a moot court before an argument, but in that case I had three moot courts. I had people who had argued before the Supreme Court or clerked for the Court, people with a variety of backgrounds, to moot me.”

Webb-Daniel’s clients had filed suit against a company and its auditors for securities fraud. “The jury had found in our favor and given us a multimillion-dollar award against the company and its directors, but had found in favor of the accounting firm,” she says. “So there were appeals filed by both sides.” Since various circuit courts had ruled differently on whether a motion for prejudgment interest would affect the time for an appeal, the Supreme Court granted certiorari to settle the issue. In the end the court ruled that a new notice of appeal had to be filed to preserve an appeal against the accounting firm.

“The most challenging thing was dealing with Justice Scalia,” says Webb-Daniel. “He would seize on an issue and not let go. He’d put out a hypothetical and I’d answer it. Then he’d change the facts, and I’d give him an answer. I was well prepared, but he kept changing the hypothetical so much … eventually it was just completely off base.”

Webb-Daniel was glad her husband—a partner in the firm who had tried the case in the trial court—was there with her. “He asked me as we were going into the courtroom if there was anything he could do,” says Webb-Daniel. “He was ready to give me words of wisdom, but what I said was, ‘Don’t forget the quills. Make sure I remember to get the quills.’ When you argue in the Supreme Court, they give you two feather quill pens as a memento, and I wanted to make sure I didn’t forget that important souvenir. He’s a prominent lawyer himself, and he jokes that all I needed him for was to carry the briefcase and get the quills. And I did forget it. It was the last thing on my mind when I finished that argument.”

Michael K. Wolensky / Schiff Hardin

Before Michael Wolensky went before the Supreme Court, he had already written numerous briefs for the Court and witnessed its oral arguments many times.

“It is a unique experience for lawyers,” Wolensky says, “and it can really throw you off your game if you’re not prepared for it. You stand in front of the nine justices and within seconds they start throwing questions at you from every corner. … I was 18 seconds into my argument when the first question came. If you go in with a prepared argument or speech, forget it; it’s not going to happen. … You have to weave your points into your responses.”

Wolensky’s case concerned whether instruments sold by his client were securities. The issues at hand were fairly technical.

“It can be daunting when you first undertake it,” Wolensky says, “especially when you have 50 or 60 years of Supreme Court precedent that you have to master, including some unusual and difficult issues. … I was faced with a dozen Supreme Court decisions all around the point and two decisions that addressed the point, so there was a wealth of facts and information there that had to be mastered.”

Although the Court ruled against him, 9-0, Wolensky found the experience magical. “I’ve argued in many circuits,” he says, “and I’ve argued in the Georgia Supreme Court, but the U.S. Supreme Court just has a certain feeling of awe and majesty about it.”

William B. Hill Jr. / Ashe, Rafuse & Hill

Oral argument in the U.S. Supreme Court is broken into two 30-minute blocks: one for each side. A red-yellow-green light set informs litigators where they stand in their argument time: green means go, yellow means five minutes remain, red means stop. When William Hill Jr. argued before the Supreme Court, his opponent failed to reserve time for rebuttal.

“As his light went on yellow,” says Hill, “I [decided] to argue the case without my notes. … When my opponent’s red light came on I took my watch off, stood up, put my watch on the podium. Rehnquist looked up, saw just my watch on the podium and started smiling. He said, ‘General Hill’—he called all of us generals—and I said, ‘Chief Justice, may it please the Court. This case leads itself to three outcomes …’ So I did my argument without notes. That was on a Monday. Tuesday, I got a telephone call from Lewis Powell III. Lewis was in my class as an undergrad at Washington & Lee, and his dad, Justice Powell, was still on the court. … So Lewis [says], ‘Dad called to tell me that when the justices went to en banc right after oral arguments on Monday, they remarked on how refreshing it was to have a lawyer come discuss his case with them instead of argue it at them with notes.’”

The issue Hill argued was whether a defense lawyer on a death penalty case is considered ineffective if he or she puts up no evidence during trial. Hill represented a defense counsel who didn’t put his client on the witness stand because the client took great delight in recounting the facts of the murder. “About two months later the decision came out and I won 5-4, by the skin of my teeth. I think Justice Powell may have written the dissent. He approved of my advocacy skills; he just disagreed with my position.” 

Hill was able to conduct his argument as he would a “cocktail conversation” thanks in large part to the temperament of the Court. “If there was ever a court that had the ability to impose psychological pressure and cause a good lawyer to choke,” he says, “it would be the U.S. Supreme Court. But the curious thing about it is those members of the Court are so respectful and deferential to lawyers that appear before them, they put you at ease. And you don’t even realize they’re doing it. That’s the thing that struck me most. … They’re intellectually aggressive—I’ll tell you that—but always civil.”

W. Warren Plowden Jr. / Jones Cork & Miller

W. Warren Plowden Jr. was taken aback by how opposing counsel were situated beside each other. “The lawyers are sitting up there at a table with a lectern in between each side,” he says, “so when you stand up to argue you can reach out and touch [your opponent].”

Plowden’s case on behalf of the Monroe County School District refuted an allegation of sexual harassment by a fifth-grader. “You’re nervous. You’re worried: Am I going to do this all right? That sort of thing. But once it got going, all that went away. … You get in a groove and as the questions start coming, you just go with the flow.” The Supreme Court wound up voting 5-4 that the claim for money damages based on sexual harassment can be made under Title IX.

What Plowden remembers most had nothing to do with the argument itself. “When you’re getting ready to go in the courtroom,” says Plowden, “the clerk gets all the lawyers back in a little lawyers’ room and starts giving you the ‘what fors’ and the ‘how to dos and don’ts’ and all that. And he said, ‘Listen, midway through your argument, the Chief Justice [Rehnquist] is going to get up and walk behind a curtain and walk back and forth several times because of his bad back. We put some speakers back there and he can hear everything you say. Don’t stop. Don’t wait for him to come back. Just keep going like nothing happened.’ Sure enough, there I am in the middle of my case and a lady comes out, pulls his chair back—they sit in these tall-backed chairs—and he gets up and walks out. There’s a huge, dark-colored curtain that goes all the way across the room behind the bench. A few minutes later he came back and sat down like nothing.”

Emmet Bondurant / Bondurant Mixson & Elmore

Emmet Bondurant argued three cases before the Supreme Court, winning two. The one he lost, which occurred in 1966, challenged the constitutionality of a Georgia gubernatorial election provision as violating the equal protection clause of the 14th Amendment.

“Three minutes into the argument,” says Bondurant, “you knew how the case was going to come out. Our side had prevailed in the lower court. Representing the state on appeal was then-Assistant Attorney General Harold Hill. About three minutes into his oral argument, Justice Hugo Black asked Hill a softball leading question: ‘Mr. Hill, there’s nothing in the federal constitution telling Georgia how to elect a governor, is there?’ With that I knew that we were very likely to lose. … We lost in the Supreme Court by a 5-4 vote, and that’s how Mr. Maddox got to be governor.”

Bondurant hadn’t considered Black a swing vote. Black had actually written the opinion in a Supreme Court case Bondurant had won three years earlier that similarly challenged the apportionment of congressional districts.

“It was a bit of a stunning reversal from all of his prior opinions,” says Bondurant. “That position is irreconcilable with virtually everything he had done previously in that area.”

In the earlier case Bondurant won on congressional reapportionment, he researched anything he thought had bearing on the issue, including documents that dated back hundreds of years, such as the minutes of the Constitutional Convention of 1787. “I was dealing with a question that affects the whole country,” he says. “[Reapportionment] was something that had not happened since the founding of the country. So you were essentially overturning not quite 200 years of practical precedent in which the courts had stayed out of the area.”

David F. Walbert / Parks, Chesin & Walbert

David Walbert argued a 1982 case challenging a county election system as being racially discriminatory.

“You’ve got to be very competitive to do this sort of thing,” says Walbert. “Arguing before the Supreme Court is a kick in the ass and it’s fun on any day of the week, but I like to win. Had I lost [in the lower court], I would’ve been real happy, but as I was a winner the last thing I wanted was the Supreme Court reviewing it. … They don’t take cases to affirm them; they take cases to reverse them.”

Making matters worse, while the case was pending appeal, another case decided by the Supreme Court changed the law in a regressive way—stating that not only must a law be racially discriminatory, it must be proved that the purpose behind the law was intentionally discriminatory.

“Everybody said, ‘They’re taking it solely to reverse it and you’re going to lose,’” says Walbert. “Everybody likes to talk about the Supreme Court, but really no one knows exactly what’s going on. In any case, you’re so much closer to it and know so much more about it, and frankly, if you need other people’s views, you ought not to be doing the case.”

Walbert was right not to listen. He won 6-3.

Paula K. Smith / State of Georgia Criminal Division Law Dept.

The morning Paula Smith argued her case, she had to fight to get into the building. “There were several law student groups there,” she remembers. “And then there was a group of appellate lawyers and this was their week to be there and observe court. So everybody was going through the attorney membership door, and I was getting concerned that I wasn’t going to get in. I had to break in line and say, ‘Excuse me, I’m part of the show. I’m not trying to be rude but I’m first up!’”

Smith’s case involved a Fourth Amendment issue questioning whether a home could be searched if two people lived there and one granted consent to search while the other refused.

“We had known this was going to be a very active argument,” says Smith. “I think I was asked more than 60 questions in thirteen-and-a-half minutes, so it was difficult to get everything out. … What surprised me the most is who asked what questions. Traditionally, Justice O’Connor, Justice Kennedy at times, and certainly Scalia were more pro-state, more pro-law and order, and O’Connor and Kennedy seemed far more hostile toward our position. On the other hand, Justice Souter and Justice Breyer seemed to ask questions more favorable toward our issue.”

Even though the Court ruled 5-3 that only one person needed to refuse consent to search, Smith revels in her experience. “To have the opportunity to represent my state,” she says, “and stand there and just step into that stream of history where so many famous jurists and so many cases have been … nothing can compare.”

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