Over the next couple of months, the CockleBur will provide a series of conversations about the law with a number of prominent legal journalists, practitioners, scholars, policy makers, and social justice advocates. I chose these particular people because I think they can bring a unique perspective about topics such as advocacy, legal education, the legal profession, how the media covers the law, and how the law can work social justice change.
Our third conversation is with Roy T. Englert Jr., a partner at the Washington D.C. firm of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP. Prior to co-founding Robbins Russell, Mr. Englert was an Assistant to the Solicitor General and, after his graduation from Harvard Law, he served as a law clerk at the United States Court of Appeals for the District of Columbia Circuit. Mr. Englert has argued 20 cases before the U.S. Supreme Court and countless others in federal courts of appeals.
I have known Roy for around three years now. He is one of the smartest people I know. And he is a very kind man, who has always taken the time to answer my questions and give me sound advice.
Q. Thanks for taking the time for this discussion. Someone once told me that you try to read every decision handed down by the Supreme Court. Is that true? And why do you read all of them?
A. Yes, I do read every decision the Supreme Court issues, and almost always on the day of issuance. I feel that reading every decision helps me to understand how the Justices think. By reading everything, I sometimes notice discussions that are relevant in other contexts but wouldn’t be obvious to look for using standard research techniques. And staying on top of everything the Supreme Court says is helpful in litigation in lower courts as well as in Supreme Court litigation.
Q. When you start working on an appeal, do you start thinking about the oral argument even before you begin writing the principal brief?
A. Only in an attenuated sense. The brief is the main event, so it requires plenty of focus in its own right. It does help to think of questions that may ultimately be raised in oral argument, and to think about whether and how to anticipate them in the brief, but the brief is so important in its own right that I’m thinking overwhelmingly about the written advocacy and only a little about the eventual oral advocacy.
Q. You’ve watched and argued before the Supreme Court for a couple decades now. What changes have you had to make as an advocate as the Court has changed?
A. There have been a lot of changes in substantive approaches to issues to account for new precedents, of course. Most of those changes don’t lend themselves to discussion in this format, but at least a couple do. In statutory cases, the Court has become more interested in statutory text and less ready to allow legislative history or policy to drive statutory interpretation. The point can’t be pushed too far – issues of statutory interpretation difficult enough to reach the Supreme Court usually have a policy dimension, and enough of the Justices are interested in legislative history that it’s never good advocacy to ignore it – but an effective advocate does spend more effort on the text today than when I started litigating Supreme Court cases in 1986. Another substantive change is that the Justices show more interest in business cases than they did in my early years. I don’t subscribe to the simplistic notion that the Court is “pro-business,” but I do think the level of interest in business issues is noticeably greater.
In oral argument, the most dramatic change is the pace of interruption of counsel by questions. It was always important to be prepared to respond to the hardest questions about the case. Even back in 1986-1987, Justice Stevens and Justice Scalia could be counted on consistently to ask the tough questions, and they were not the only good questioners. But at that time there were also several Justices who said relatively little from the bench, including Justices Brennan, Blackmun, and Powell. Now eight of the nine Justices are aggressive questioners, and it’s important to try to front-load the important information in any answer because there’s a strong chance of being interrupted by another question after just a sentence or two of answer.
Q. Last term, Daniel Lerman, an associate at your firm, argued a case at the Supreme Court. As this article notes, it is not the norm for an associate at a D.C. firm to argue a case at the Court. Can you talk about why you gave the argument to him?
A. Dan really impressed me with his work on the merits briefing. And we had a wonderfully supportive client that was willing to entertain the idea of having a top-notch associate argue. When I was young, I was the beneficiary of several more experienced lawyers’ willingness to look for argument opportunities for me, and I’ve tried to find similar opportunities for lawyers junior to me.
Q. If a law school student is hoping to enter the world of appellate practice (which many want to do), what one piece of advice would you give them?
A. My single most important piece of advice may be a little bit surprising: don’t specialize in appellate practice too early. The best appellate lawyers have at least a little trial experience, and the best trial lawyers have at least a little appellate experience. The time to get that experience is in the early years of practice.
Q. Thanks again for taking the time to do this. Last question: Almost every SCOTUS litigator I know has a hobby or activity outside of the law that they are passionate about. And I know one of the things you like to do outside your law practice is referee Judo matches. What is your attraction to Judo?
A. I competed in Judo for 23 years (with modest success), and now I’ve been involved in Judo for almost another 23 years since retiring from competition, in various capacities but most notably in refereeing. I’ve long loved the physical activity of the sport, the different types of people and different cultures it brings me in contact with, and some of the specific philosophies that lie behind Judo. In a vague sense, Judo is also similar to litigation: both often involve taking aggressive moves by an opponent and turning them to one’s own advantage. But my Judo activities and my day job are also different enough to provide welcome changes of pace. I’ve been involved in Judo substantially longer than I’ve been a lawyer, and at this point it’s hard for me to imagine life without both Judo and law.