17 May 2006

Don't Come Calling . . .

There's been a bit of a fuss because Law.com published an article about how we poor, helpless, incompetent defense lawyers need to be rescued from ourselves by helpful, capable, beneficent, better-than-you lawyers if we are supposed to represent one of our clients in the Big, Bad Supreme Court of the United States. Several blawgs had postings about this: Concurring Opinions, OrinKerr.com, SL&P, Arbitrary & Capricious, and Hoosier Lawyer. However, the best, by far, is My Shingle; Carolyn Elefant blows the article out of the water.

Here's my $.02. If I ever have a case which is accepted for argument by the Supreme Court of the United States the quickest way to eliminate yourself from any participation which I can control will be to contact me. I know that it will probably be in the best interest of my client if I get help. However, we both know that the calls I get after cert is granted aren't about helping me or my client. They're about putting your name on a brief or getting face time in front of the Supreme Court. This is true whether you are biglaw or a "criminal law appellate specialist" out there in your own botique firm. Don't call me; if I want your help I'll call you.

So, what steps do I plan to take when (ever the optimist I) that fateful day comes? Well - as much as I think the Supreme Court would do well with a few more 13 page briefs which cited the main case on point but didn't have a 20 case string cite and made its case succinctly at the expense of missing that one outlying, semi-relevant case from Guam - I'd look for an expert. And there are plenty around. After all, what else have law professors got to do? Grade papers twice a year? ;-) I might not know exactly to whom to talk but I bet I know of some people whom I could contact who would probably be able to point me in the right direction. Get a law professor and two or three students suckered into errrr . . . I mean convinced to work free of charge for truth, justice, and the American way and I bet my 15 page brief could get fleshed out to 50 pages - including that all important, semi-relevant case from Guam.

As well, I'd put some serious thought into contacting the NACDL (btw watch first lady on the media clip). Now, I'm more hesitant to do this for a couple reasons. First, I'm no longer a member. I was for a while a few years back before I realized that I was getting nothing out of it. Well, that's not exactly true. I was getting a well put together magazine every month which, almost invariably, told me how terrible a lawyer I was because I was court appointed rather than a PD. However, I'd probably be happy to rejoin if required. Second, I have no difficulty whatsoever imagining the aforementioned "criminal law appellate specialist" using this as an avenue to try to shoulder out a local-yokel and save him from embarrassing himself because he's obviously going to be badly overmatched. All - of course - in the interest of doing what's best for the client. Of course. Still, the resources of the NACDL are such that I'm fairly certain I'd have to, at the very least, contact the organization and see if I could work with it.

And, no, I won't give up my oral argument time so you can put that you appeared in front of the Supreme Court on your CV. If you're all that worried about my presentation help me out by arranging 4 or 5 murder boards. Or better yet sit around and informally discuss the issues with me a few times (I tend to learn better this way) and still do a couple murder boards. Anyway, let's face it, if we haven't won via the brief we're not going to win during the oral argument. If the Court was seriously interested in having attorneys trying to persuade it during oral arguments it would remain silent the majority of the time and let the attorney be persuasive. Instead we have hot benches and they're all about the Justices, not the attorneys' ability to persuade. All an attorney does with a hot bench is survive and I can survive any courtroom. I may walk out of the courtroom after having been scalped by Scalia but I'll walk out of the courtroom.

Now you've read the Ken Lammers plan for that fateful day when the Supreme Court decides I am worthy of the honor of driving up through the world's worst traffic jam, paying half a month's earnings to stay the night at a hotel with exactly the same stuff in the room as a $50 Red Roof Inn, facing the very real possibility of actually getting mugged (gotta love D.C.), and then feeling the love of a court whose latest addition made his bones as a federal prosecutor. Almost sounds like too much fun. The only question is whether I'll go buy the silly suit that's the "official" uniform of the Court. Probably not; I'm not even sure if we non-solicitor general types are allowed to wear them in court anyway.

1 comment:

iocaste said...

If you do make it to U.S. SCt, seek advice from appellate attorneys -- not law profs.

No, really.