Imagine presenting on a subject that could alter the laws of the United States of America and change millions of lives. That is what lawyers do when they argue a case in the U.S. Supreme Court.
A counselor presenting an oral argument before the Supreme Court is usually given 30 minutes to present an argument. He or she can expect eight of the nine Justices—Justice Clarence Thomas does not usually ask questions—to fire questions at them. Whatever answers the lawyer gives will likely lead to more questions that can become a legal or logical trap.
As was the case in the “Obamacare” arguments of the last three days, the stakes are high, the pressure is immense, and the presentation expectations are tough standards to meet.
Those expectations include the following as described in the Supreme Court document Guide for counsel.
- No personal computers, cellular phones, cameras, or any other electronic devices are allowed in the Lawyers’ Lounge or the Courtroom.
- If you are the counsel for the petitioner should proceed promptly to the lectern–do not wait for the Chief Justice to issue an invitation.
- Remain standing at the lectern and say nothing until the Chief Justice recognizes you by name.
- Once recognized, say, “Mr. Chief Justice and may it please the Court …” Do not introduce yourself or co-counsel.
- Expect questions from the Court, and, if possible, answer “yes” or “no.” You may then expand your answer.
- If you do not know the answer, say so.
- Do not answer a Justice’s question with a question. Respond with the facts.
- Speak in a clear, distinct manner, and try to avoid a monotone delivery.
- Speak into the microphone so that your voice will be audible to the Justices and to ensure a clear tape recording.
- Under no circumstances should you read your argument from a prepared script.
- Never under any circumstance interrupt a Justice who is addressing you.
- Give your full time and attention to the Justice who is addressing you. Do not look down at your notes, at your watch, or at the clock located behind the Justices.
- If you are speaking and a Justice interrupts you, cease talking immediately and listen.
- Do not ask the Chief Justice how much time you have remaining–it is your obligation, or that of your co-counsel, to keep track of your time.
- A white light will go on when you have five minutes left; a red light when your time is up. Terminate your presentation immediately and, unless you are answering a direct question from a Justice, sit down.
- Do not make assertions about issues or facts not in the record.
- Use precise language.
- Argue the legal points, not the emotion behind those points.
- Eliminate half of what you initially planned on covering. Your allotted time evaporates quickly, especially when numerous questions come from the Court. Be prepared to skip over much of your planned argument and stress your strongest points.
- If a question seems hostile to you, do not answer with a short and abrupt response.
- Attempts at humor and familiarity usually fall flat.
- Anticipate what questions the Justices will ask you and be prepared to answer those questions.
- Promptly and quietly vacate the front argument table after the Chief Justice announces, “the case is submitted.”
The document that states the points listed above can be found at this link.
How does a lawyer prepare to meet these specific and demanding expectations?
One lawyer who argued before the Supreme 39 times had a specific, and successful, preparation regiment. The January 17, 2011 issue of Fortune Magazine reported that he would do the following three things.
- Write down hundreds of questions that the Justices might ask.
- Craft his answers and distill the words he would use down to their essence.
- Place those questions on flash cards and repeatedly test himself.
That lawyer was John Roberts, now the Chief Justice of the U.S. Supreme Court.
Follow this link for a sample of the “Omabacare” arguments this week.
The expectations on us presenters are not as exact as those for a counselor arguing before the Supreme Court.
Given that our learners will decide whether our arguments have merits and are actionable in their lives, perhaps those expectations should be.