Lawyer Sophistication in Supreme Court Criminal Litigation

Tony Mauro has a nice article in the Legal Times suggesting that, while the Supreme Court bar has become increasingly specialized, that process has not extended to criminal cases. In criminal matters, it seems, the local lawyer wants to hold on to the case. One possible result: criminal law develops in ways more hostile to criminal defendants. Why might criminal clients be less likely to use a Supreme Court boutique for their Supreme Court argument? Several reasons.

First, and probably most importantly, there is client sophistication. When IBM has a case in front of the Supreme Court, you can be sure that its general counsel – the true client – seeks out the attorney best prepared to win. And since that general counsel knows a lot about the business of law, he or she will surely be able to identify the most appropriate lawyers for the job. Most criminal clients, on the other hand, are relatively poor, relatively uneducated, and relatively unsophisticated. (I use the term “relative” since a recidivist may know more about good and bad lawyers than the average schnook who never got arrested, got divorced, or sued in tort.)

Also, criminal practitioners have every incentive to litigate the case themselves, and little not to. Most lawyers would love to argue a case before the Court. It looks fun, and – prospectively, at least – it offers a big ego boost. (You may not feel so good once Scalia has shaken you like rag doll.) They can also claim big shot status to clients who probably won’t know any different. And the main downside – that you lose, that you’re embarrased publically – will be lost in a market with limited information flow (unsophisticated incarcerated clients spread reputational data, but my sense it that it often relates more to the sizzle than the steak) – and where almost every case is lost on appeal.

Another factor may be the degree to which lawyers care about the broader implications of an individual case for the entire doctrinal area. In many areas of civil practice, the lawyers align their own interests very closely with clients. This is particularly true for activist lawyers who are suing as much for themselves as clients. But it’s also true in private practice. I would expect a management side labor lawyer to want to win for Client A because it will be good for Clients B-Z and because, over time, that lawyer is likely to find the positions of his or her clients preferable, as a normative matter. Part of this is good business, but part is that lawyers have close professional, and sometimes social, relations with their clients. The blurring of the lawyer/client line is less common for criminal lawyers. While many criminal lawyers do care deeply about the issues they litigate, it is usually in the activist lawyer sense. And in any case, my sense is that this passion is more common among indigent defense lawyers (and particularly public defenders) who do the work, and pass up income, in the interest of social change. And I wonder if these passion-defenders are the lawyers least likely to showboat at the Supremes to the deteriment of their client.

I’m curious what others think about this.

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21 Responses

  1. Paul Gowder says:

    Smacks a little bit of elitism. How much of the reputation of supreme court litigators is based on any real merit, and how much is just glamour? How much more difficult is U.S. Supreme Court litigation than federal appeals court litigation or state supreme court litigation really?

    Sure, knowing the personality of the Justices might be important, knowing how to moot the case well, etc. But are there really only a handful of lawyers who can achieve this?

  2. Dylan says:

    Mr. Gowder, as usual, is entirely correct.

    Outside of the SC bar and its immediate circle of fanboys, the idea that specialists provide any meaningful advantage because of their superior oral argument skills is hard sell. I think most issues are predetermined from existing law and the Justices preinclinations to a much greater extent that most people are willing to acknowledge, but to the extent lawyers are adding any marginal value it’s all about the brief. And for Supreme Court cases it’s not obviously hard to get plenty of excellent free help briefing such issues both directly and from amici.

  3. Dan Filler says:

    While elitism may be a factor, it is also true that there is a difference between a lawyer who routinely works in a trial court and one who does a lot of appellate argument. In my experience, the number of lawyers with serious talent in both venues is pretty limited. Perhaps this article focuses on a subset of the general problem: trial lawyers who should be outsourcing appellate arguments, whatever the level. Dylan, you’re right that oral argument will make a limited difference in most cases, but is that a reason to toss the limited edge it might provide?

  4. Mark McKenna says:

    Dan –

    I’ve always thought the specialized Supreme Court litigator is a mixed bag. On the one hand, I suspect that it does make some difference that you’re able to get a Carter Phillips or John Roberts to argue your case – not because they’re so much better but because, given the way the game works, perhaps the justices will give them more of the benefit of the doubt on close calls. This, of course, just reinforces the clubiness of the profession, but I suspect it’s a real dynamic.

    On the other hand, Supreme Court specialists often lack real sophistication in the substantive area of law that is at issue. I’ve seen a couple of IP oral arguments and have often been unimpressed with the lawyers and their lack of understanding of the real issues. The question for criminal law, I suppose, is whether the lawyers who don’t want to give up the cases to the Supreme Court litigators have such substantive law advantage that it makes up for the loss of prestige.


  5. Seth R. says:

    Carolyn Elefant posted on this topic over at

    Check out the article “Hey Biglaw – Where Were You When it Mattered?”

    The zinger is at the end:

    “If biglaw really and truly cared about the quality of criminal representation, it shouldn’t come come waltzing in at the last hour with a high end defense, like a wayward parent who never spends times with the kids but lavishes them with gifts and cash once a year on their birthday and then wonders why they go astray. For all the money, the parent wasn’t there when it counted. And for all the skills and sophisticated arguments that biglaw wants to bestow on a small firm lawyer or a criminal defendant before the court of last resort, truth of the matter is, biglaw wasn’t there when it mattered. They have no right to be there now.”


    I’m truly sorry that Biglaw resents that they’re missing out on all the opportunities to puff up their firm advertising brochures. But this is more a matter of due process of law than law firm marketing.

  6. David S. Cohen says:

    I wonder if you’re better off being a non-pro before the Court. If you’re a pro, the Justices or the clerks may give you the benefit of the doubt and rely on your arguments entirely (unlikely, but possible). Thus, if you’re a SCOTUS pro and screw up somehow or are off your game, you’re in trouble. But, if you’re not in the club, the Justices and their clerks, as with most appellate cases, might not trust your work product and would do your work for you – finding on their own the best arguments one way or the other and backing that up with the best research.

  7. Seth R. says:

    David, I think you’re right that “being part of the club” helps in specialty courts.

    However, the Supreme Court is not a specialty court. It is an American icon. As such, it should be open to all America, regardless of revenue or prestige.

  8. David S. Cohen says:

    Seth – I agree. I think you might be better off with someone outside the club. (I probably should have been clearer in my post with my phrase “give you the benefit of the doubt and rely on your arguments entirely.” By that, I meant rely on your arguments as the best arguments out there for your side, not in the sense that they agree with your position.)

  9. Bob Van Der Velde says:

    One BIG factor not mentioned: MONEY!

    Seriously, the public defender may not have the budget for the luxury of bringing in outside SCOTUS specialists.

  10. CBH says:

    Practice before the US Supreme Court can be very different if, for no other reason, the Court can overrule (or just “clarify”) its earlier criminal procedure rulings. Those rulings are obviously binding on all other courts, and so the value of big picture or more policy based arguments is likely to be greater than even in a state supreme court.

    But Mauro makes another interesting point in his article — the defense attorney’s opponent in the US Supreme Court is likely to be far better than who he (or she) faced up until that point. Michael Dreeben, the Deputy Solicitor General who handles the really big criminal cases before the Court, is perhaps one of the most effective oral advocates practicing today. (Check out recordings of his arguments on the Oyez project’s website if you don’t believe me.) Mauro also mentions that some states have effective SG’s of their own (such as Ted Cruz in Texas).

    The law is, in the end, a battle of advocacy, and so a chronic mismatch in representation before the Court will inevitably have widespread repercussions.

  11. Paul Gowder says:

    Perhaps this article focuses on a subset of the general problem: trial lawyers who should be outsourcing appellate arguments, whatever the level.

    I think this is correct. From my own experience the skills of trial and appeal are very, very different. (Personally, I actually find it to be a total mystery how good trial lawyers tease out facts from witnesses, pick jurors and argue to them, etc. Give me a nice standard of review issue any day.) Nobody has yet shown me any thing resembling an argument as to how supreme court practice is different from appellate practice generally. And there are lots of good appellate lawyers who have never set foot in the Supreme Court.

  12. Mike S. says:

    Does anyone know how often large firms (or SCOTUS boutiques) take up indigent cases pro bono? (Whether through genuine concern or through a genuine concern for their AmLaw 100 rankings…)

  13. SCOTUS lawyer says:


    U.S. Supreme Court practice is quite different from general practice, in my experience. The cert stage is just totally unique: the traditional legal “merits” aren’t very important. And at the merits stage, you are crafting an argument for five or six very specific people. Arguing that a position is “mandated by the law” is useless, as nothing is “mandated” unless the Justices want it to be mandated. Most argument to a court of appeals is based on binding precedent, but there is no binding precedent at the Supreme Court level. Plus, you have 8 active justices at argument who are using you as a vehicle to persuade the swing votes (whether in a hostile or friendly way), and you have to take their questions and weave the tapestry you want to weave in the midst of it. It’s really its own world.

  14. SCOTUS lawyer says:

    Make that “quite different from general appellate practice.”

  15. Paul Gowder says:

    SCOTUS laywer: making the reasonable assumption that you are who you say you are, to some extent I have to defer to your experienced opinion. However, I’d ask you to clarify what special skills you think these differences call for, and why ordinary appellate advocates don’t have it.

    On the face of it, it doesn’t seem like a big difference. The “mandated by law” thing would seem to just be a substantive change in the arguments to be presented, i.e. less authority and more normativity. (And would be the same for state law questions in state supreme courts.) The question-taking/weaving would seem to mirror the dynamic on other appellate courts.

    I, for one, would be bery interested in hearing more about the skillset that you see as necessary for those differences, and also the cert stage.

  16. Dylan says:

    “The law is, in the end, a battle of advocacy…”

    Worst. Theory of jurisprudence. Ever.

  17. SCOTUS lawyer says:


    I guess it depends on what you mean by “skillset.” My point is less about the skills required to do the job than the goals and approach of one who is doing it skillfully.

  18. Bobbie says:

    A couple scattered thoughts.

    I work for a big firm and we take up fair amount of pro-bono work that ends up in the Supreme Court. Over the past three years, I suspect we’ve been before the Court at least five times in non-paying cases. I know the lawyers who often are behind these cases, and they don’t do it for prestige, but because they believe very deeply in each of the causes they’ve taken up. Although none of the cases have been criminal cases, contrary to suggestions above, we have lawyers who have impressive criminal experience. One attorney in particular was an AUSA for many years. Several others do white collar (and they run a thriving pro-bono practice). We also have a number of former clerks who spent a large portion of a year dealing with the intricacies of criminal law for behind the bench. I don’t think any of this is unusual for big firms.

    It’s also clear to me that Supreme Court litigation is a specialty. How could having experience with particular judges not be invaluable? I’d rather have a trial attorney who’s been before a judge a number of times than someone else who has more experience, but not with that particular judge. And like another poster mentioned, the arguments must be crafted differently before the Supreme Court. That’s not necessarily a skill set the average attorney couldn’t pick up, but it’s not something he or she would be used to doing. Bottom line: practice makes perfect.

  19. Trace L. Rabern says:

    While what SCOTUS says rings true, I don’t agree that this skill set and situation (arguing merits to certain legal personalities, and having no binding precedent) is unique to USSCT oral argument. That is what an advocate needs to know and do to be effective in my state supreme court. (Our state has departed from federal law as a matter of state constitutional law on many fronts so the federal law is just as another persuasive jurisdiction.) The field of possibilities is wide open and there must be a frank and full and passionate discussion of what our state supreme court wants the law of our state to look like. While I am sure not all the members of my state supreme court are as intellectually gifted as some of the members of the USSCT, the majority of them must be persuaded, nonetheless, through a sophisticated and tailored individual dialogue. (They also seem to savor shaking an advocate like a rag doll.)

    We public defender appellate advocates learn a great deal about the inner workings of the justices’ brains by reading each of their opinions (and OA questions) over time in response to different stimuli. I suspect that when a particularly effective USSCT advocate hones precisely in on what the justices are concerned with (for example, as Jeff Fisher does in his 911 case briefs by evoking the “hue and cry” doctrine) it is not necessarily because he has been talking face-to-face with the court a good deal (he has, on both sides of the bench), but more because he has read and digested everything written by the justice to the point of getting inside his brain to see what makes him tick. That is exactly what good appellate advocates in our state supreme court have to do. Smaller stage? Sure. Smaller impact? Also yes, only binding within our state. But requiring the same hard work, skill set, courage, passions and considerations nonetheless.

    Whenever I appear in front of our state supreme court, there is almost invariably a tension between what I need to do as an advocate for this client and what I want to do as an advocate for changing the law of the state to better serve my indigent clients, generally. For my client I need to close the door behind me (no slippery slope problem), while for my clients, generally, I want to establish a broad new rule. For my client I might want the remedy on the most narrow basis because that is the basis most likely to appeal to the swing vote, while that narrow win does no good for any of my other clients with a similar issue. Occasionally, there is a way to lose the case for this particular defendant and yet win a great new legal rule for my clients, generally, in the opinion. It is a tight (and frustrating!) spot in an argument when it is clear this is the way the swing vote wants to go, and almost starts bargaining with you from the bench.

    This tension is one reason that supreme court firms and individuals representing a client will always fail to see eye-to-eye—the duty to this client vs. duty to criminal law and accused people generally. But this is all the more reason for more (free) support and collaboration and mooting with attorneys, and due consideration of the benefits of turning a case over to someone like Jeff Fisher. We need to drop the pretense all the way around.

  20. Chuck R says:

    I can’t claim expertise in the SCOTUS, but I’ve noticed that in approx half the cases at the CtApp level, someone on the panel asks a detailed fact question that may sway their vote – the answer is sometimes available from the Admin Record, and sometimes not. In specialized areas (like IP), one might say that some technical aspects of the law function much as facts in the criminal arena. In both contexts, there is great benefit to the advocate knowing those facts intimately.

    On a practical level, non-trial counsel one can attain 99% of the necessary factual knowledge by close reading of the record and deep knowledge of the applicable law. Moreover, trial counsel who fails to adequately prepare for argument might be unable to recall the necessary facts at the right moment. Assuming equal levels of intelligence and competence, it seems to me that the main question is whether the advocate, whoever they are, will find the time and have the tools to prepare adequately for the argument. (The primary “tool,” would be a solid moot argument, with people who have a good sense of the law, the facts, and the judges).

    As an immigration litigator, I would hesitate to cede an argument to a SupCt specialist who wasn’t also a specialist in immigration law. But I do care enough about the issue that I would have to place it above my desire to argue the case myself – assuming the availability of someone who would argue the case better than I.

  21. Scott says:

    I don’t think that the skill set is necessarily any different from the highest levels of State Supreme Court advocacy, and of course there are a lot of first-rate lawyers who do not practice regularly before the Supreme Court who could do a great job there. But the point is that everyone who insists on keeping “their” case when it goes up to the Court thinks they are in that category, and most of the time they’re wrong. The creativity and thoroughness of research, elegance of drafting, and quality of oral advocacy turned out by the best of the Supreme Court bar (such as our new Chief Justice when he was practicing) are so different from the norm–even the norm in high stakes federal litigation–as to be very noticeable. A really great Supreme Court brief frequently reflects the work of 4 or 5 extremely good lawyers full time for months. Does that happen often in State Supreme Court practice? I don’t know but would be interested to hear.

    There are also peculiarities, like the relative unimportance of precedent and heightened importance of good policy arguments, that many lawyers fail to execute well even if they appreciate them in the abstract. Another is the importance of amicus curiae support and coordination, which is a very important part of winning a Supreme Court case but rarely as important in other contexts. And SCOTUS above is right that certiorari is completely unique–a trap for the unwary for even truly great lawyers who do not deal with it regularly, and therefore make mistakes like urging the Court to take their case because it’s an interesting question of first impression, or because the Ninth Circuit decided the case contrary to a long line of its own precedents, etc.

    I think Mark definitely has a point that the Supreme Court specialists are rarely as expert in particular specialty fields like IP (or tax) as the people who practice in those areas all the time. But sometimes that’s an advantage, since the Justices aren’t experts in those areas either, and specialists tend to develop a lingo and a set of assumptions about what is on the table and what isn’t that makes it harder for them to communicate effectively with neophytes and think outside of their usual parameters.