Volume 3, Number 4 • September 2005

Arguing Before the Supreme Court of the United States or Lesser Courts

When lawyers are first faced with an argument before the Supreme Court or any type of argument before any court dealing with the interpretation of a statute, they should organize their thoughts as to how the courts in the past have indicated how they wish to interpret the statutes.

1. Textual or Plain Meaning. When first arguing before a court, you will first start out by looking at the textual or plain meaning of the statute. What does the statute actually say? Is there any ambiguity? Can a plain meaning control without perverting the law or the result?

2. Contextual. If the plain meaning does not reach where the court wishes it to go, courts then look at the section of a statute in relation to other sections of the same part of the statute to explain its meaning. In short, does something else in the same law lend a definition or allow it to be interpreted to make sense?

3. Historical Analysis. If textual and contextual analyses do not help, the next type of analysis is one that looks at the historical aspects of the law.

4. Political Arguments. You can also examine the policy arguments that define the certain way a Court may feel about the general policy of the country or of the law.

5. Consequential Arguments. In short, can the court handle ruling if it ruled in a certain way? Would the court be overburdened with litigation? Is it efficient to decide the case a certain way? Or would it create more protracted litigation or make more work for the Courts?

6. Justice or Equity Argument. Is it fair? This is often actually considered by the court.

7. Relationship Argument. Would a certain decision disrupt the structural relationship among the federal government, state government, and Congress and courts?

Based on a presentation given by G. Eric Brunstad Jr. of Bingham McCutchen LLP, Hartford, Connecticut, eric.brunstad@bingham.com, to the National Association of Bankruptcy Trustees, August 2005. Mr. Brunstad has argued two cases before the Supreme Court of the United States and has participated as cocounsel on several other cases before the Court.