The CockleBur Blog

U.S. Supreme Court Merits-Stage Procedure, Part III: Oral Argument

You have filed your Supreme Court merits briefs, booked your D.C. flight and hotel, and Google-mapped drug stores near the Supreme Court Building [for that last minute bottle of Pepto, of course]. It’s time for oral argument.

Does It Really Matter?

Eugene Gressman, a leading Supreme Court practice authority, has this to say about oral argument:

To resolve such [substantial and difficult] questions, the Court needs the fullest possible assistance from counsel, both in their briefs and their oral arguments. Counsel are expected to engage in a dialogue with the Justices that will serve to clarify the facts and the issues in the case and that will make a decisive impression as to the merits of the dispute. Only the lawyer who is fully prepared, articulate, and at ease can expect to fulfill the role assigned to him or her in this great process. Supreme Court Practice, Ch. 14.1 (9th ed. 2007).

On the other hand, when the famously-taciturn Justice Clarence Thomas lectured in my 1L Con Law class, he told us that he makes his decisions from the briefs, and does not really take that much from oral argument.

But in the end, for the Supreme Court mertis-stage litigator, the question of, “Does it really matter,” is actually pretty meaningless. Oral argument is part of the merits evaluation process, by rule and by tradition. You’ve written your best brief, so you might as well prepare to deliver a killer final stroke.

Preparing for Supreme Court Merits Argument

oral argThe Court offers a helpful guide for attorneys. It describes the process of oral argument, and also gives interesting nuts-and-bolts advice for preparation.

Attorneys should begin preparing for oral argument weeks ahead of time. Review—and re-review—all of the relevant case materials, including all of the briefing. Many litigants set up moot court practice sessions to try to anticipate the questioning from the bench, and to get a feel for the rhythym of oral argument. Keep in mind that oral argument can challenge your body and emotions, as well as your intellect, so try to stay rested, fed, and healthy in the days leading up to your session.

On the day of argument, attorneys must report to the Lawyer’s Lounge between 9:00 and 9:15 a.m. for morning sessions, and between 12:00 and 12:15 p.m. for the rare afternoon session. Wear conservative business dress, in traditional dark colors. The use of cell phones, computers, cameras, or any other electronic device is not permitted in the Lawyer’s Lounge, and these items may not be brought into the Courtroom. Recording anywhere in the Supreme Court Building is prohibited (thus, the iconic press conferences on the outside steps of the building).

Parting Gifts

On the counsel table, attorneys will find a handcrafted, working quill pen, a gift from the Court as a souvenir of the event. No kidding. Please, take the pen.

Because recording devices are not permitted in the building, you will not be able to get a photograph to commemorate the event. But if you like, the Court can connect you with a courtroom artist so that you can commission a drawing of your triumph.

When you step to the podium for thirty of the most exhilarating minutes of your career, it will just be you, your notes, and nine of the sharpest minds in the law. But when the session concludes, and the justices return to their chambers to consider your argument, the briefs they reference should be prepared to a standard of quality worthy of your effort. Give Cockle Legal Briefs a call to schedule your Supreme Court merits-stage brief.

New Petitions Recently Filed by Cockle Legal Briefs

Beltranena v. Holder, filed on September 12, 2014

Fleming v. Texas, filed on September 12, 2014

Conan Doyle Estate, Ltd. v. Klinger, filed on September 15, 2014

Arthey v. Schlumberger Tech. Corp., filed on September 18, 2014

A Breakdown of a Well-Written Question Presented

730135_11786430As we have discussed in our previous blog posts (here & here), the Question Presented is the most important part of your brief because it is the first item that the Justices’ law clerks view.  In this blog post I would like to exemplify the qualities of a well-written Question Presented by highlighting the Question Presented from the recently-filed cert petition in 14-280, Montgomery v. Louisiana:

Henry Montgomery has been incarcerated since 1963.  Montgomery is serving a mandatory life sentence for a murder he committed just 11 days after he turned seventeen years of age.

In light of Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 83 L.Ed.2d 407 (2012), which holds that mandatory sentencing schemes “requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole”…violate the Eighth Amendment’s ban on cruel and unusual punishment, Montgomery filed a state district court motion to correct his illegal sentence.  The trial court denied Montgomery’s motion, and on direct writ application, the Louisiana Supreme Court denied Montgomery’s application, citing State v. Tate, 2012-2763 (La. 11/5/13), cert. denied, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014), which held that Miller is not retroactive on collateral review to those incarcerated in Louisiana.

The question thus presented here is whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?

What makes this question presented special?

  • Brevity – The information fits on one page, which allows the reader to absorb the question’s content at a glance, while also adhering to the Court’s Rule 14.1(a) to avoid “unnecessary detail.”
  • Yes or No – The question calls for a yes or no answer.  Open-ended questions should be avoided because the Court is not there to explain why a lower court decided the way it did.  Instead, the Court is there to correct an inconsistency in the law, and your Question Presented should steer the Court towards that direction.
  • Introductory Paragraph – Sometimes a legal issue is just too complex to boil down to a one-sentence question.  It is becoming increasingly common to use one or more introductory paragraphs to give the reader the proper context within which to consider the question.  Scalia has even endorsed phrasing the question in this way.  See Scalia & Garner, Making Your Case:  The Art of Persuading Judges, at 87-88 (2002).
  • What Law is Involved – This question does a nice job of summarizing the case law and the constitutional amendment at issue in this case.
  • Advocacy – The question uses persuasive language suggesting the Court ultimately resolve the question in favor of the Petitioner, while avoiding an overly argumentative tone.

At Cockle Legal Briefs, we will review your Question(s) Presented to make sure you are presenting your legal issue to the Court in an acceptable format.  No other Supreme Court brief printer offers this service.

Circuit Court Consultation and Printing Services

Circuit CourtsNot only can Cockle Legal Briefs help you prepare and file your Briefs in the United States Supreme Court, we can also help you prepare and file Appellate Briefs in the Second Circuit, the Fifth Circuit, the Ninth Circuit, or any of the thirteen Federal Circuit Courts. The filing requirements in the thirteen Federal Circuit Courts are complex, and often confusing. In addition to the Federal Rules of Appellate Procedure, each Circuit Court operates under its own set of local rules—mandatory practice standards that periodically change, and sometimes conflict with the Federal Rules—and, the various Clerks’ offices often adhere to unwritten practices and preferences that are distinctive to each Court. Below is a sampling of the consultation and printing services that we offer for our Circuit Court filers.

Circuit Court Document Review

A Circuit Court document must be filed in compliance with the Court’s rules as to length, formatting, and composition. Our Circuit Court experts are intimately familiar with each Circuit’s requirements. We can carefully examine your Brief, Motion, Appendix, Addendum, or Record Excerpts for compliance to ensure that your document will be accepted by the Clerk, and filed on time.

Circuit Court Proofreading

After decades of proofreading legal documents, we can confirm one basic human principle—everyone makes mistakes. The drafter must review all of the relevant elements of the case, research the applicable law, develop a coherent theory that relates the facts to the law, reduce the theory to a succinct, persuasive narrative, and finally, prepare a type-written draft. In that process, errors of form, grammar, spelling and consistency are bound to creep in. Our teams of professional proofreaders can comb through your draft, and note any possible problems that you may want to address before you present your completed work to the Court.

Circuit Court Typesetting

When filing a Brief in the Circuit Courts, it is important for the Brief to be prepared to the very highest possible standards of refinement and style. From cover through certificates, we can format your text, proofread the copy, send you an annotated proof for review, and make your corrections. We will then print, bind, file, and serve your document. Your typeset Brief, formatted in our distinctive Cockle Style, will let the Court, counsel, and clients know that your document has been prepared with the same level of care and professionalism as the argument it presents.

Circuit Court Consultation

If all you really need is to talk with someone—an expert who knows your Circuit’s requirements inside and out—then give us a call. We can schedule a time for you to speak with a consultant who is familiar with the Circuit (usually within an hour or two). We will ask for a reasonable consultation fee, and if you later decide to use one of our other services, we will apply the fee to those costs.

Circuit Court Printing, Binding, and Shipping

After all of the research, drafting, checking, and re-writing, in most instances your work is still not complete. The document must be printed onto the page, bound with the correct color cover, and delivered to the Court and to counsel. Why not let Cockle Legal Briefs do that for you? We will print your document (single- or double-sided, depending on the rules of that Court), insert tabs when required, prepare the cover in the proper color, bind the cover and pages, and ship the copies by a method and time frame that satisfy the Court’s requirements.

Expert advice and consultation from our knowledgeable Circuit Court Document Analysts can help you avoid pitfalls. Cockle Legal Briefs has been producing top quality legal documents for over 90 years, and our staff of professionals—experienced in the unique practices of each Circuit—can help you present a timely, rule-compliant, and impeccably prepared document. Give us a call to discuss our Circuit Court services. Depending on the options you choose, we can provide a cost estimate over the telephone and schedule a time for your documents to arrive.

FASCINATING SUPREME COURT FACTS

 

“Get your facts first, then you can distort them as you please.” – Mark Twain.

From the installation of a frozen-yogurt machine to verified KKK membership, the history of the United States Supreme Court and its Justices is filled with fascinating facts.

Curriculum Vitae:

  • Excluding Senate confirmation, there are no formal requirements for becoming a Supreme Court Justice.
  • 57%, or 64 out of 112 Justices, never earned a Juris Doctorate degree.
  • Harvard has produced more Justices (15) then the next three schools combined (Yale, Columbia, and Samford (no, not Stanford. Samford)).
  • Today’s Court is comprised entirely of Ivy League graduates: 5 enrolled at Harvard, three attended Yale, and one graduated from Columbia.
  • William Howard Taft is the only person to have served as both President of the United States and Chief Justice of the Court.

Age is Just a Number:

  • The youngest Chief Justice ever appointed was 44 year-old John Jay.  The youngest Associate Justice ever appointed was 32 year-old Joseph Story.
  • The oldest individual to serve was Justice Oliver Wendell Holmes, Jr., who was 90 years-old when he retired from the Court.

Tenure:

  • There have been 112 Justices in the history of the Supreme Court.
  • Justices have served a term of 16 years on average.
  • Chief Justice John Marshal was the longest serving Chief at 34 years, 5 months, and 11 days, while Associate Justice William Douglas has the longest term in Court history at 36 years, 7 months, and 8 days.

Really?

  • Justice Hugo Black was a member of the KKK, though he later joined the Court’s majority in Brown v. Board, holding segregation in public schools unconstitutional.
  • Justice Ginsberg beat cancer twice while not missing a day of work.
  • The Ten Commandments adorn the walls of the Supreme Court building.

An Exclusive Club:

  • Jimmy Carter is the only president to serve a full term without nominating a Supreme Court justice.
  • President George Washington appointed 11 Justices, more than any other president.
  • Justice Byron White is the only Justice to be elected to the College Football Hall of Fame.  He was also inducted in the NFL’s Hall of Fame.
  • First Catholic Justice: Roger B. Taney.
  • First Jewish Justice: Louis Brandeis.
  • First African-American Justice: Thurgood Marshall.
  • First Hispanic Justice: Sonia Sotomayor.
  • First female Justice: Sandra Day O’Connor.

Oddities:

  • Justice Elena Kagan is responsible for the installation of the first frozen-yogurt machine in the Supreme Court cafeteria.
  • The top floor of the Supreme Court building houses a gym, which includes a basketball court dubbed “the highest court in the land.”
  • Justice Ruth Bader Ginsburg was 1 of 9 women in her 1956 graduating class at Harvard.
  • Traditionally, 20 white quill pens are placed at counsel’s tables each day while the Court is in session. After oral argument, attorneys are encouraged to keep the pens as souvenirs.

Facts obtained from the Supreme Court’s website, Oxford Univ. Press, ConstitutionFacts.com, CNN, History.com, The Daily Beast, The National Constitution Center, and KQED.org.

fact

New Merits Brief Filed by Cockle Legal Briefs

Brief For Petitioner in Direct Mktg. Ass’n v. Brohl, No. 13-1032, filed on September 9, 2014

New Petitions Recently Filed by Cockle Legal Briefs

Montgomery v. Louisiana, filed on September 5, 2014

Daniel v. Bank of Am. Nat’l Ass’n, filed on September 8, 2014

Bower v. Texas, filed on September 9, 2014

Verkerk v. North Carolina, filed on September 10, 2014

Acceptance Cas. Ins. Co. v. Great West Cas. Co., filed on September 10, 2014

New Petition Recently Filed By Cockle Legal Briefs

Meade v. U.S., filed August 18, 2014.

U.S. Supreme Court Merits-Stage Procedure, Part II: Document Filing

The decisions of the U.S. Supreme Court not only shape the law of the nation, but can often adjust the weave of our social fabric. To help the justices meet this weighty challenge, the Rules lay out a merits-stage process that offers sources beyond the arguments in the parties’ briefs, to provide information to the Court that is both comprehensive and concise.

docsThe Joint Appendix

The Joint Appendix is a compilation of materials from the record below. The JA is intended to be a useful guide for the justices as they consider the arguments in the case, and is not the sole reference source for the Court, which will have access to the entire record below. The parties are encouraged to confer on the content of the JA, but Rule 26.2 provides a document designation scheme if the parties are unable to agree. The petitioner is expected to pay the initial costs of preparing the JA—which, like all Supreme Court merits-stage filings, must be typeset to the Supreme Court’s exacting format—but Rule 26.3 requires the respondent to advance costs for documents that the petitioner deems unnecessary, and further, generally provides that the JA expenses are a taxable cost at the conclusion of the case. The Court can also assign JA costs as it deems appropriate. The parties might defer filing of the JA, or even be excused entirely, upon a granted motion to the Court. The cover is tan, includes both the petitioner’s and the respondent’s signature blocks, and indicates the date the petitioner filed the Petition, as well as the date the Court granted the writ.

The JA should be filed with the Petitioner’s Brief, 45 days after the Court grants the writ, however the petitioner can ask the Court for an extension of time.

Amicus Briefs

Amici can file briefs supporting either party, or neither party (an amicus supporting neither party will have the same filing deadline and cover color as an amicus supporting the petitioner). Amicus briefs are due seven days after the party being supported files its principal brief. Important note for Supreme Court merits-stage parties: litigants should avoid filing a party’s principle brief before the due date; amici in support will have scheduled their filing date for seven days after the party’s due date, and may not be able to meet a shortened filing period. Briefs supporting the petitioner are clad in a light green cover, and briefs supporting the respondent are in dark green. Supreme Court merits-stage amicus briefs are limited to 9,000 words.

The Supreme Court Merits Rule

While the U.S. Supreme Court only allows filing by paper document, all filers at the merits stage must send the Clerk a text-searchable PDF copy of the brief on the day of filing. The Court’s memo detailing the Supreme Court Merits Rule provides a specific naming convention for the PDF file, depending on the identity of the filer. The filer must send a copy to every party’s counsel of record, but this does not replace the paper service requirement. Filers are not required to serve amici who have filed in the case, but if the Solicitor General has filed an amicus brief on behalf of the government, we recommend sending the SG a courtesy copy.

With over 90 years of brief filing experience, Cockle Legal Briefs can help you navigate both the written and unwritten rules of Supreme Court merits-stage practice. Give us call to schedule your next Supreme Court filing.

New Petitions Recently Filed by Cockle Legal Briefs

Keele v. U.S., filed on August 29, 2014

Sarno v. U.S., filed on September 2, 2014

Disclaimer

Articles posted in the Cockle Blog are for informational purposes only. Nothing in the Cockle Blog should be taken for legal advice. In fact, Cockle Blog articles are not a substitute for proper legal research conducted by licensed attorneys.

Cockle Blog will occasionally provide opinions on certain cases and Court procedures. These opinions should be viewed with the recognition that no one can predict with certainty how the Supreme Court will rule on particular cases. Any reliance on articles contained in Cockle Blog must be done at one's own risk.