The scariest sentence in legal lexicon may well begin with the words: “Mr. Chief Justice, and may it please the Court…” As noted by the Court’s Guide for Counsel, advocates must first utter these nine words before trumpeting a client’s case in front of the most inquisitive minds in the country. In fact, at least three practitioners have fainted over the past 40 years after those words left their lips.
Rule 28 provides three points of guidance regarding oral argument:
- It should emphasize counsel’s brief on the merits;
- Counsel should assume that the Justices have read his or her brief; and
- Counsel should not read from prepared text.
However, the rule goes no further in advising counsel how to argue, or what to expect. What follows is a primer on oral advocacy before the highest court in the land.
Oral argument is conducted from October through April each Term. A two-week session is held each month with arguments scheduled on Monday through Wednesday of each week. Unless directed otherwise, each side is allotted one-half hour of time.
Oral argument can play a crucial role in the outcome of a case. “The Court needs and responds to intelligent and creative discussions by counsel as it struggles to resolve some of the more difficult legal problems of the times.” Supreme Court Practice – 9th ed., Eugene Gressman, et al. Oral argument is counsel’s chance to paint a broad picture for the Court and to demonstrate the potential impact of a decision. Justice Ginsburg describes it as “an opportunity to face the decision-makers; to try to answer the questions that trouble judges.”
There is an element of drama in an oral argument, a drama in which for half an hour