You have 30 minutes to present the most important argument of your life. You try to keep your carefully constructed thoughts in order, but you cannot stop the barrage of questions from the top nine legal minds in the country. You have never argued in a court like this before.
Lawyers face this daunting situation if their case is one of the select few picked to be heard by the U.S. Supreme Court. But the experience doesn’t always have to be so intimidating. A program started at the Georgetown University Law Center is quickly gaining recognition as the premier location to hone skills to make a successful argument before the Supreme Court.
The Supreme Court Institute was started in the fall of 1999 by Georgetown Law professor Richard Lazarus. The institute encompasses a variety of programs, including lectures on current Supreme Court news and courses on the Supreme Court for Georgetown Law students. The centerpiece of the institute is the Moot Court Program, which hears approximately 50 percent of all cases that go before the Supreme Court.
A “moot” is a practice session in which lawyers present oral arguments. Many attorneys will practice oral argument within their own law firms; the Georgetown Moot Court Program is one of the first such programs to provide moots as a service.
Lazarus, director of the Supreme Court Institute, said he decided to start the Moot Court Program because many Georgetown law professors were informally involved in moots.
“It made sense to bring it together in a systematic and comprehensive way,” Lazarus said. “We already had the foundations for the institute, in particular because of the expertise with Supreme Court decision making and advocacy of many Georgetown professors.”
The Supreme Court Institute will hear oral argument for any counsel with a case before the Supreme Court on a pro bono, first-come, first-serve basis. If counsel requests a moot, the institute generally will not hear oral argument from the opposing counsel.
According to Lazarus, the institute will hear both sides only in very particular circumstances, and only if both sides in the case agree. If the institute does hear both sides, there is a concern that the advice given to the second side heard would be influenced by the first side’s moot court. In the special cases where moots are held for both sides, no justice participates in both moots and students are not allowed to attend either.
The Supreme Court begins hearing cases the first Monday of October and continues until late June or early July. The court operates on an alternating schedule of two-week periods when justices hear cases and deliver opinions, and recesses, when justices consider the business before the court and write opinions.
Out of the over 7,000 cases on the court’s docket, only about 80 are granted a writ of certiorari, which indicates that the court has accepted the case. Some cases are considered without oral arguments, but the majority of cases are denied outright either because the court is satisfied with the lower court’s decision, it decides the issue is not of national significance or because the court decides it does not have jurisdiction.
For the few cases that the court decides to hear, attorneys on each side are granted only 30 minutes to present their argument. Because nearly all cases have already been heard by lower courts, the Supreme Court does not invite a jury or witnesses—the arguments by the lawyers are all the justices hear. With up to 24 cases presented over the course of one two-week sitting, lawyers need to present their oral arguments in a concise and convincing manner that makes an impact on the justices.
The Moot Court Program operates on a similar schedule. The program holds moots from about October to April, and attorneys attend a moot court a few days before presenting at the Supreme Court. According to Lazarus, attorneys get the most useful advice if they present oral argument at a moot court just before the Supreme Court hearing because they have already thought out and prepared their oral argument.
Oral argument is crucial to a case argued at the Supreme Court. According to Georgetown Law professor Cornelia Pillard, the majority of attorneys are arguing at the Supreme Court for the first time.
“The moots can serve as damage control. For someone in an unprepared state, the main objective is to keep them from saying something damaging,” Pillard said.
A lawyer making an argument before the Supreme Court must follow a strict set of procedures, and a good place to start is the Court’s Guide for Counsel, which goes into intricate detail about procedures for lawyers arguing before the Court. The lawyers must arrive between 9 and 9:15 a.m. the day their case is heard and leave all coats, hats and papers in the Lawyers’ Lounge. The lawyer may not bring large volumes into the courtroom; most only enter with a single notebook. The lawyer makes his or her way to the courtroom with two co-counsel. When the case is called, the counsel must immediately proceed to the front counsel tables, and the lawyer giving the oral argument must stand at the lectern and “say nothing” until the Chief Justice recognizes the lawyer by name. Once he has done so, the lawyer may address the Court by the standard, “Mr. Chief Justice and may it please the Court … ” The Supreme Court Guide stresses that counsel may not introduce himself or herself or their co-counsel.
The speaking lawyer may only use “Mr.” when addressing the Chief Justice—all other justices are to be referred by their names, for example “Justice Thomas” or “Justice O’Connor.” Lawyers are not to use the title “Judge,” and the guide recommends that if the lawyer is not sure who is addressing them, they should answer using “Your Honor” rather than mistakenly address a justice by the wrong name.
Lawyers should expect the justices to interrupt them during their arguments with questions. The appropriate response is a “Yes” or “No,” followed by an explanation. The Supreme Court Guide cites the example of a lawyer who responded to a justice’s question with a question and was then chastised by the justice for daring to question a justice.
“Under no circumstances should [lawyers] read [the] argument from a prepared script … [and should] never under any circumstance interrupt a justice,” the Guide states. Lawyers are advised not to look down at notes, at their watch or at the clock on the wall—they are expected to speak facing the justices at all times.
A white light on the lectern comes on when the lawyer has five minutes left, and a red light is illuminated when time is up. The lawyer must immediately stop speaking and sit down. If a justice is asking a question, the lawyer may answer the question, but may not continue the argument.
Supreme Court rules are not rules a first-time Supreme Court lawyer would be accustomed to. Supreme Court oral argument should not address facts of the case. A case is heard before the Supreme Court when there is a question of law. Unlike juries, which can be swayed by facts and emotion, the court must be convinced by the lawyer’s vision of legal theory.
Targeting an argument to that goal and making sure a lawyer does not offend the justices or break any rules is where the Moot Court Program comes in.
The moot court “justices” asked to participate include Georgetown law faculty with experience arguing before the Court, attorneys from D.C. firms with Supreme Court oral argument experience, recent Supreme Court law clerks and alumni or current members of the Solicitor General’s office. (The Solicitor General is responsible for representing the federal government before the U.S. Supreme Court.) Most justices prepare between three to four hours for the moots, primarily by reading the briefs for the case.
Most often, between four and five justices will hear a case. Of those justices, the institute tries to find some who have experience with the case topic so that those Justices can provide an understanding of how the case compares to past Court decisions.
“We try to find liberal justices for conservative cases and conservative justices for liberal cases—people who will be skeptical about the case,” Lazarus said.
When putting together a panel of justices, Tina Drake, Supreme Court Institute Fellow, says she looks for justices with similar experiences as the attorneys presenting.
“If the attorney is arguing for the first time, the panel won’t be the same as if it’s a seasoned advocate. We need people to be tough on them so we look for people similar in stature and temperament,” Drake said.
The moots are held in two parts. During the first part, the lawyers are asked to maintain formal character and present their oral argument as if in front of the Supreme Court. Justices may interrupt to ask questions and the lawyers are again advised to answer just as they would the court. After the 30 minutes allowed for oral argument, a formal questioning and answering period follows, until the “Chief Justice” concludes that the moot court should move on to the second part.
During the second part, the justices engage in informal discussion with the counsel and “have the opportunity to discuss the case, including the relative effectiveness and ineffectiveness of all aspects of counsel’s argument,” according to the institute’s website.
The informal discussion involves, says Lazarus, a “candid critique of practical and substantive advice.” Lazarus explains that justices have given comments such as, “I really didn’t like your beginning,” or “You are going to lose this case—but here is what you can do to minimize damage.”
The justices also give attorneys practical advice to warn them of Supreme Court procedure, custom and preference.
“For example, if you point at [Chief Justice William] Rehnquist during oral argument, he will tell you to stop pointing,” Drake said.
The justices’ critique can dramatically improve the oral argument, according to Lazarus. The questions at the Supreme Court are difficult and demand a high level of preparation. The scope of precedent is much different than with lower courts and requires a different kind of oral argument.
“The counsel comes away [from the moot court] with a much better sense of what will fly and what won’t,” he said.
Everything that goes on during a moot court remains confidential, even after a case has been decided. “Justices play devil’s advocate during the moot; they do not mean everything they say,” Drake said.
A group of Georgetown Law Center students is allowed to attend moots if they sign a confidentiality agreement and if the attorneys agree. According to the institute’s website, student attendance is important to the institute’s mission to “further educate Georgetown Law’s student body about the various issues before the Court.”
Students may not participate in moots, though counsel can solicit student input if desired. Often students will attend a moot and then attend the oral argument at the Supreme Court in order to determine how attorneys implement moot court advice.
Law Center student Raju Goyal has attended two moots, and finds that demand among students is high. He praised the program, noting that “the professors and former clerks give some really good advice and practice.”
Raymond Givens, an Idaho lawyer specializing in Indian law, has presented two cases before the Supreme Court. The first case involved a dispute over the ownership of submerged lands underlying Lake Coeur d’Alene and the St. Joe River. The Coeur d’Alene tribe had occupied the land and had been seeking to judicially establish ownership for about 25 years.
The case was accepted by the Supreme Court because of a question of jurisdiction—whether a tribe could sue a state in federal court. The case lost in a 5-4 decision.
In the second case, Idaho v. U.S., the federal government sued the state of Idaho on the tribe’s behalf—again, over ownership of the submerged land. This case was successful, again in a 5-4 decision.
Givens chose not to practice in a moot court for the first case, but then brought the second case to the Georgetown program.
“I had never been an advocate of moot courts. I thought they destroyed my spontaneity, which is one of my strengths. If you run things too many times, you lose the magic,” Givens explained.
But the first time Givens appeared before the Court, he was not prepared for the discourteous atmosphere. “They are in your face and snooty from day one,” Givens said. “They slit your throat anyway they can.”
Givens said he did not try to create the perfect oral argument and instead left the specifics of the argument fuzzy. He said his intention was for the panel to give him guidance on constructing the oral argument.
“I was very impressed by the panel [of justices]. They were just as snooty as I feared the court might be, and that’s exactly what I wanted,” he said. “I didn’t put a huge amount of effort into what I was going to say, and I got chewed up and spit out in little tiny pieces by that panel.”
One of the justices on the panel was also an expert in American Indian law and gave Givens extensive advice for his oral argument.
Givens completely restructured his argument to better appeal to those Justices that would oppose his position. “We created an argument approach that I hoped would allow me to keep control of the argument during the questioning,” Givens said. “In my experience, those who oppose a position that’s being presented ask questions designed to make the person speaking look bad.”
Givens now says the moot court was invaluable in helping to rework his argument. “The key to success was the caliber of [justices] that [Richard] Lazarus got for the panel. They were very bright people and were very well prepared. They had read and understood the briefs as well as any court ever would.”
Washington attorney Tom Goldstein has presented several oral arguments to the Georgetown moot court program, and has also served as a justice. He says that the moot court has been an incredible opportunity and has helped him win cases.
“As an advocate, [the moot court program] is my chance to hear the views of really smart lawyers with lots of Supreme Court experience,” Goldstein said. “Serving as a justice returns the favor to the Institute but it also makes me a better advocate. By mooting other lawyers, you definitely see how you can improve.”
