January 01, 2018

Ten Important Considerations for Supreme Court Advocacy

How one makes the most of this vital, critical, and final phase of a Supreme Court case.

Theodore B. Olson

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A Supreme Court oral argument is the apex of the appellate process. With rare exceptions, each side has a mere 30 minutes to present its case to the justices. Except where the United States, through the Office of the Solicitor General, participates as amicus, argument time is not divided between advocates for either side. This is the hour when it all comes to a crescendo in the 75 or so cases the Supreme Court hears every year. Individual justices have said that minds can be and often are changed during the argument (Justice Breyer recently said that his views are influenced in up to 50 percent of oral arguments), so these minutes are precious and exceedingly important.

How does one make the most of this vital, critical, and final phase of a Supreme Court case? I am constrained by space limitations here, but there is no shortage of more lengthy and worthy analyses of the subject. For those interested in a deeper immersion, among the oracles I suggest consulting are the following:

  • Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges
  • Michael E. Tigar, Persuasion: The Litigator’s Art
  • David C. Frederick, Supreme Court and Appellate Advocacy
  • Frederick Bernays Wiener, Effective Appellate Advocacy (the ABA’s Litigation Bookshelf edition)
  • Sir David Napley, The Technique of Persuasion

Rather than attempt to summarize that insightful advice with my own gloss, I offer 10 considerations that I consider important in preparing for and executing a Supreme Court argument. Many of these are common sense and simple good judgment, but they may be useful reminders for anyone facing the daunting prospect of a Supreme Court argument.

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