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The Supreme Court of the United States of America, Part IV

On Behalf of | Feb 10, 2013 | International Family Law

When we last left our happy band, the Supreme Court of the United States of America had just accepted our Petition for Writ of Certiorari on International Family Law and told us to submit our Brief on the Merits.

The very next thing that happened is the phone rang.  And rang.  And rang.  

Suddenly, I was everyone’s best friend.  Everyone, that is, who wanted to argue a case before The Supreme Court of the United States of America.

It turns out that there is an emerging specialty in the Bar, those who routinely argue before the US Supreme Court.  Once upon a time, not very long ago, the attorneys who put the case together, tried the case and fought through the US Courts of Appeals went on to argue before the nation’s highest court.  Not so much so anymore.  Now a small cadre of attorneys argue so routinely that a study of the October, 2012 term showed that almost 80% of the attorneys who argued had argued before the Court five times or more.

And it appears that the way they get their business is to stay very attuned to cases that the Court grants certiorari and then call one side or the other or both and offer their services.  In every case, the offer was for free, as well.  

“I’ve argued numerous times before the Supreme Court.  I know those guys like the back of my hand.  I know just what they’re looking for.  Not just everybody can do it, you know.  Only a few folks survive that kind of contest.  Only a few folks can rise to the challenge.  You’d better let me handle it.  And did I mention I’ll do it for free?”  One fellow offered to put $1,000,000 worth of attorney time on the case if we would hand it off to him.

The decision was not mine.  It is and always shall be the client’s, Sgt. First Class Jeff Chafin.  Sgt. Chafin shot ever true and straight on this issue.  He wanted to keep the argument in house, where we knew the case, we knew the players, we already knew the law (International Family Law Hague cases have only made it to the Supreme Court once before), and he knew our heart.

So we turned down all comers and we set to work.

We did have one offer that we couldn’t refuse.  The University of Pennsylvania Law School offered to help us write the brief.  They have a Supreme Court clinic staffed with eager, bright students who spend their semester researching and writing briefs.  They are led by Professor Stephanos Bibas, an erudite fellow who was a quick study of the situation and predicted we had the winning hand by far. With an offer like that, we couldn’t, and didn’t, say no.

I’ll let our briefs and our opposition’s brief speak for themselves.  I’m real proud of ours.

Next came the practices.  In Supreme Court parlance, they are called “Moots” for moot court, I presume.  In Moots, the person who will make the argument before the Court is mercilessly grilled for a long as the panel has the patience for it so that all the warts, all the stammers, all the rat holes of an argument are discovered, thoroughly vetted and resolved.

The first Moot was at my Alma Mater, Georgia State University.  Ely Abbott put together a fantastic panel led by no less than our Dean, Steven Kaminshine.  We have no shortage of Supreme Court experts in our ranks so I was well grilled by Professors Rowberry and Segall to name but a few. 

The next Moot was by the University of Pennsylvania who hosted me in Philadelphia. This Moot was the toughest because they were extensively engaged in researching and writing the Brief so they knew it best and demanded the most adherence to its defense.

Last came Georgetown University’s moot on the Friday before Wednesday’s argument.  This Moot is legendary because of its long standing tradition of Mooting those arguing before the Court, because it’s room is designed to closely resemble the Supreme Court itself and because they assemble an incredibly prominent panel to conduct the exercise.

The Moots were the most intense, high energy practice rounds in which I had ever participated.  And here all these assembled faculty and experts were making me the center of their attention and effort to force me to perfect my craft.  

Additionally, the US Attorney General offered me the opportunity to sit in on a Moot for Nicole Saharsky who would argue the case for the United States of America. Chafin was to be her 15th argument before the nation’s highest court.

From all three, I learned different approaches I could take to the argument. I could play the zealous advocate, which seemed to be the most popular idea, literally fighting with the Justices to push my agenda on them, despite their inquiries.  I could play the technocrat or policy wonk, full of knowledge but short on purpose.  Given that Ms. Saharsky was going to advocate with keen precision for the government, and their position was entirely in line with ours, I decided to be myself, to argue the personal side, on behalf of Sgt. Chafin who had lost his daughter to a very bad decision by a trial judge.

I reasoned that the Justices would know the case through and through and the law from every aspect and while I had become quite prepared to defend or assert the positions that mattered, what I really needed to do was hear their questions and do my best to answer them earnestly.  I figured that they were unlikely to ask me a question that they didn’t want to know how I resolved it.  They were going to be uninterested in, if not somewhat resent, any dodge or effort to short shrift their concerns to get back to my own agenda.

All in all, three months of my life was devoted to preparing for the fastest 30 minutes I would ever enjoy. Now, with the last moot under my belt, still stinging from the precise, sharp questions posed, I had but a few last days in DC to study, to write and re-write and to wait for the pinnacle experience of my profession.

(to be continued)

Michael Manely