How To Write For The U.S. Supreme Court[1]

by Irwin Ironstone & Bob Vinik –

There was an article on “findlaw”[2] that described research from a Ph.d candidate. Some of the suggestions may or may not agree with what your have been taught in the past by your professors. The suggestions may or may not agree with comments from some of the justices (I know that Justice Steven Breyer has described what he tries to do in writing a decisions (he does not like to use footnotes.[3] The Late Justice Antonin Scalia has also commented about writing in several books.[4] Each of the Justices has an individual style that is described on law blogs. If I remember correctly, Justice Anthony Kennedy listens to several operas while he writes his decisions.[5] Justice John Roberts according to the analysis was one of the most effective writers of all time (his writing is very direct ). Justice Souter was possibly the most humble and did not participate in one survey.[6] Justice Ginsberg describes her style as one where her points do not have to be reread.[7] Justice Thomas’s decisions are usually short and to the point. Many people fail to recognize his ability to go against the grain in so many cases.[8] Justice Sonia Sotomayor’s writing style is long and difficult to follow. She has some very reasonable views but seems to have skipped a few writing classes at Princeton and Yale.[9] Hopefully, her writing will improve based upon the level of her law clerks and years of experience on the court. The newest Justice Elena Kagan is one of the best writers on the court.[10] Realize that before being solicitor General, she was dean of Harvard Law. She has a clear, concise, biting style. Some suggest that she is the best writer on the court and if you’re going to write for the Court reading the best writers on the court should help. In my opinion, the best writers at this time, and also the clearest are Roberts and Kagan. One usually takes conservative positions and the other liberal positions. We can all learn from the different styles of the justices.

GETTING A CASE TO THE
SUPREME COURT IS DIFFICULT.

Realize that the chance to have a writ accepted by the Justices may improve a little based on your writing. However, the odds against it being reviewed and accepted are very high[11]

The Author of the study, Adam Feldman, suggests using certain styles and techniques but most of the successful brief writers had lots of experience and were very bright.

Use active verbs. Keep your sentences short. Don’t dwell too long on case history. Win in the Supreme Court.

Most of the people in the list of those who were before the court were extremely talented lawyers, were law professors, clerked for justices and judges and may have been solicitor generals. Somehow, the list above does not tell the entire story.

At least, that’s the pattern identified by University of Southern California Ph.D. candidate Adam Feldman, who analyzed the writing style of Supreme Court briefs to see who had their brief language picked up by the Justices themselves.[12]

It appears that the justices use the briefs and writs before them and plagiarize freely if the writing is effective and corresponds with their arguments.

That analysis, which looked at 9,400 briefs filed between 1946 and 2013, found a distinctive writing style associated with success in the Supreme Court. Not only does that writing help win cases, it finds its way into the High Court’s opinions as well. Yep — it’s not just the law clerks who write the Justices’ opinions. The most successful Supreme Court lawyers get their language in there as well.

It appears that short, non-confrontational, active, concise language helps to get you before the Court.

TIPS FOR YOUR NEXT SCOTUS BRIEF

Feldman’s study looked at “the amount of language in Supreme Court opinions shared with merits briefs” based on lawyers’ experience practicing in the Court over almost 70 years. Feldman found that lawyers with the most experience before the Justices were much more likely to have language from their briefs work its way into Supreme Court opinions. That’s not terribly surprising, given that a small cadre of 66 lawyers dominate the Supreme Court bar.[13]

As in any club, or sport, there are stars that excel. Although the article and the full report gives tips, it still suggests that the odds are very high and for a non-attorneys, the only way that your action will be accepted is if the common pool of law clerks who review writs see a topic that is one that the justices might consider. The odds against a non-attorney getting a writ approved are slim or none.

Although many people talk about the rare exception like Gideon v. Wainwright, 372 U.S. 335 (1963), or Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), they don’t recognize that lawyers were responsible for presenting these cases before SCOTUS. (Those lawyers were very high up in the legal hierarchy.)

Feldman identified a few of the writing characteristics of those successful lawyers for Bloomberg’s Big Law Business. Short sentences and active verbs are key, he said. Lawyers should “avoid dry regurgitation of the lower court’s opinions.” Keeping things brief [14]probably wouldn’t hurt either, as most of the briefs that work their way into SCOTUS opinions are relatively short. The average brief for lawyers who’ve argued before the Supreme Court more than five times is 200 words less than the briefs of less experienced counsel.

Some of the language from those briefs makes it into the Supreme Court opinions verbatim, Feldman found, in cases such as Lawson v. FMR, which borrowed three full sentences from the party’s briefs along with several other similar, but not identical, phrases.

It also helps if your case isn’t that important. Feldman found that “as cases are perceived as more important to the Court, the Court is likely to share less opinion language with the briefs.”

WHO WRITES THE SUPREME COURT BRIEFS?

So, what lawyers had the most success when it came to SCOTUS picking up their writing? Chief Justice John Roberts lead the pack with the highest amount of his brief language adopted by the Court. Prior to becoming a judge, the Chief Justice worked for the U.S. Attorney’s office as associate counsel for President Reagan, as Solicitor General, and in private practice for Hogan & Harston. Justice Roberts had the perfect combo of factors which Feldman found impacted success — he was a former SCOTUS clerk, government lawyer, and had practiced before the Court many times.
Feldman’s study identified the top ten overlap scores for non-Solicitor General[15] attorneys who regularly appeared before the Supreme Court. These were:

1. John Roberts (Law Clerk, Scotus+)

2. Carter G. Phillips

3. Laurence Gold

4. Seth P. Waxman (was a Solicitor General)

5. David. C. Frederick (Clerked at Scotus+)

6. Tom C. Goldstein

7. Jack Greenberg (law Professor Director-Counsel of the NAACP Legal Defense Fund)

8. Theodore B. Olson (was a Solicitor General)

9. Jeffrey L. Fisher (Professor, law clerk at Scotus)

10 Paul D. Clement (law Professor and Solicitor General)

These weren’t the only successful Supreme Court practitioners, however. For example, Harry I. Rand had the highest overlap value, but did not commonly practice before the Court, as his practice was focused on international art recovery. Individual lawyers’ success also didn’t translate over to their firms. Justice Roberts’ Hogan & Harston was only the fifth most successful firm before the Court, Feldman found. (O’Melveny & Myers was number one.)

The odds of having a writ accepted before SCOTUS are very high. In my last year of law school, when I was represented by a firm pro bono, I had a writ accepted. I sat in the Court and watched the argument. It was like watching an argument where the issues were like reviewing how many angels could dance on the head of a pin.

The Court found against my action 9-0 (I thought that at least two of the justices were wavering.) Irwin R. Eisenstein. The attorney who walked the case through the courts was second chair at Scotus. (Thank you Lewis Zirogiannis for your dedication and support.)
P.S. The question before the court was based on the Second Circuit raising a question of law (Simply, How many days does a party have to file an appeal in a false claims act if the government is not an active participant.) I responded to the two questions raised and thanked the court for allowing a non-attorney present the issues before the court. I soon received notice that the court had requested an attorney to brief and argue the issues for me. I opposed this motion but to no avail.

The law firm that took on the case before SCOTUS would have billed more than $275,000+ just for the work done for the action before SCOTUS (This was in 2008-9 costs).

At the time, I thought the time to appeal was sixty days rather than thirty days and there was a Circuit split (Some of the Federal Appellate Courts ruled it was 60 days but other courts ruled it was 30 days.) The Supreme Court is more likely to take an action when there is a circuit split.). One issue is that the lower court’s order was not sent to my new address and that delayed my filing by about 18 days. That was never addressed in the facts but I would have lost anyway. However, the decision by Justice Thomas has some factual errors (even at the level of SCOTUS).

It is interesting to note that when justices who retire are asked about some of their worst decisions, they might suggest how they would vote differently after their retirement.

SOME OF THE RELATED RESOURCES:

• The Supreme Writer on the Court: The Case for Roberts (The Volokh Conspiracy)

• Kagan’s Conversational Tone Gets the Public Involved in Opinions (FindLaw’s U.S. Supreme Court Blog)

• Nine Plus: Supreme Court Clerks by the Numbers (FindLaw’s U.S. Supreme Court Blog)

• Amicus Brief Numbers: Quantity, Quality, and Influence (FindLaw’s U.S. Supreme Court Blog)

– See more at: http://blogs.findlaw.com/supreme_court/2015/08/how-to-write-for-the-supreme-court.html#sthash.boIsXPMK.dpuf
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[1] I would like to thank Bob Vinik for his support and assistance over years. He was an inspiration not only for me but for many others who became involved in the legal quagmires. Irwin Eisenstein
[2] see http://blogs.findlaw.com/supreme_court/2015/08/how-to-write-for-the-supreme-court.html The Original artilce was by Casey C. Sullivan, Esq. on August 21, 2015 12:57 PM- There are a significant number of additions and changes based on many other posts on the web.
[3] See https://www.youtube.com/watch?v=QMlRT67LuO8 last visited 4/21/16 A video where Justice Breyer describes how he develops an opinion.

[4] See http://www.newyorker.com/news/news-desk/writing-with-antonin-scalia-grammar-nerd last visited 4/21/16 where some of Justice Scalia’s thoughts about writing are reviewed. e.g. Making Your Case: The Art of Persuading Judges,” the first book co-authored by the pair, appeared in 2008. Their second book, “Reading Law: The Interpretation of Legal Texts,” … The nearly six-hundred-page tome details Scalia’s judicial philosophy, which they call “textualism.”

[5] At one lecture Justice Kennedy was talking about traveling the circuit where he is assigned. Each justice used to travel their given circuits by horse or any other means of transportation. At one of his stops before a group of lawyers in his circuit, Kennedy was describing how he wrote his decisions and one of the lawyers said- I also like to write to music and usually have two six packs while I write my briefs. (This is paraphrased but it is a true story- at a speech about 15 years ago at St. John’s Law School.)
[6] A single justice declined to participate in the project. “I feel like a rotter,” Justice David H. Souter, who retired in 2009, wrote to Mr. Garner. But, he explained, “Since I don’t think my own work is worth writing home about, I’d feel presumptuous telling other people what they ought to do.”
See http://www.nytimes.com/2011/05/21/us/politics/21court.html?_r=0

[7] She tells her law clerks: “Don’t write sentences that people will have to re-read. Same is true of public speaking.” Hers is direct, to the point and never excessive. She says: “My effort was to speak slowly so that that ideas could be grasped.” In her public speeches her style is professorial, hearkening back to her days as a law professor, first at Rutgers School of Law, briefly at Harvard Law School and at Columbia School of Law. See https://www.natcom.org/CommCurrentsArticle.aspx?id=995
[8] Using linguistic software researchers discovered that Thomas’ opinions are short and to the point. One of Thomas’s traits is “[His] opinions contain language from briefs submitted to the court at unusually high rates.”
They found that he copies sections of the briefs that support the courts opinions. A review of his writings suggest that he has a distinctive role on the court. on the words of others do not suggest misconduct — legal writing often tracks source materials — but they do illuminate his distinctive role on the court.
“Since his views on major legal questions can be idiosyncratic and unlikely to command a majority, he is particularly apt to be assigned the inconsequential and technical majority opinions that the justices call dogs.”
See http://www.nytimes.com/2015/08/28/us/justice-clarence-thomas-rulings-studies.html
[9] “As a Supreme Court nominee, Sonia Sotomayor has a lot going for her: a stellar judicial record, a Yale Law School pedigree, a compelling personal history, and more trial experience than any other sitting justice. But while she’s clearly a bright and talented lawyer, she unfortunately lacks one of the key qualities of a successful Supreme Court justice: writing skills. To put it bluntly, Sotomayor doesn’t write very well.” She will never be a Scalia who is quoted both in dissent and in his majority or concurring opinions. E.G. ” Scalia’s opinions are cited in leading constitutional law casebooks more than any other sitting justice. In the 2002 case Republican Party v. White, for instance, he quipped, “campaign promises are—by long democratic tradition—the least binding form of human commitment.”
One of the nice features of the Second Circuit Federal Appellate Court is that even Pro Se parties get at least 5 minutes to argue their appeals. This is a practice that should be followed by other circuits. Most non-attorneys may not be able to express themselves as well but frequently have very logical analysis of many legal issues. I have appeared in the court several times to argue some interesting issues.
I was before then Circuit judge Sotomayor who at that time did not impress me. She certainly was not as competent as one of the other judges in my panel. One, Guido Calabrese who was the dean of Yale law school and was very interested in the economic impact and false claims action against several states for their abuses in child support collections. He gave me between 10-15 minutes rather than 5 based on the economic models that I presented related to fraud in the state systems. Judge Calabrese taught justices Sotomayor, Alito, and Thomas when he was at Yale.
” See http://www.motherjones.com/politics/2009/06/sonia-sotomayors-prose-problem
[10] One article says of Justice Kagan ” “If, as Kagan intends, her style allows her to reach lay readers, the Court’s most junior Justice may well turn out to be its most effective communicator, a valuable link between those who decide the law and those who are bound by it,”.” see http://blogs.wsj.com/law/2013/11/19/the-remarkably-conversational-style-of-elena-kagan/
[11] The court (SCOTUS) may publish statistics about the number of writs submitted and accepted but these figures are slanted. They do not include writs that are thrown out based upon procedures. They may not address many issues that they have decided even though lower courts frequently ignore their determinations. Every now and then, the Court slaps the hands of state court judges but not frequently enough. If they did that, they would not have time to hear any other cases. I had one action dismissed because the clerk of the court said I had filed out of time. I had a motion in the Florida Supreme Court to clarify an order. It took about three months for a determination and when I filed the request for an extension, the Scotus clerk said that I was out of time. I did not know that state courts could modify an order and use the date of the original order (Back date). I am sure that the Florida Supreme Court Justices may have known about this quirk. My request never made it to the SCOTUS, and was never counted. There may be thousands of other cases that are also rejected with a simple note by the clerks of the Supreme Court saying your request for a writ has been denied (this after spending hundreds of hours writing the writ and spending thousands of dollars.
[12] The entire report is available (Last visited 4/21/16) and is 30 pages. It is located at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2643826
[13] http://blogs.findlaw.com/strategist/2015/08/meet-the-lawyers-who-control-the-supreme-court.html last visited 4/20/16 Out of more than 17,000 lawyers who belong to the Supreme Court bar, only 66 are before the court regularly. This is about 1/3 of One percent. ” Those attorneys are involved in almost half the Court’s cases. The magical 66 lawyers were also six times as likely to have their cert petitions accepted than your average, plain Jane lawyer.” Other characteristics include:
• Primarily corporate lawyers: fifty-five of them work for Big Law firms specializing in representing corporate client;
• Less diverse than the Justices: sixty-three of the 66 are white, only eight are women;
• No stranger to the Supreme Court: almost half worked as SCOTUS clerks;
• Former government workers: 25 worked in the Office of the Solicitor General-
• See more at: http://blogs.findlaw.com/strategist/2015/08/meet-the-lawyers-who-control-the-supreme-court.html#sthash.rrX9xKOY.dpuf
[14] See 5 tips to improve your legal writing strategist last visited 4-24-16 at
http://blogs.findlaw.com/strategist/2015/06/5-tips-to-improve-your-legal-writing.html
1. Be Concise
2. Don’t Assume Your Audience Is Knowledgeable
3. Your Perspective Should be Neutral and Objective
4. Step Away (approach it with fresh eyes)
5. Put Down the Thesaurus and Avoid Legalese
Each article frequently points to other articles. If you feel brave start reading them after this article.

[15] Solicitor General the law officer directly below the attorney general in the U.S. Department of Justice, responsible for arguing cases before the US Supreme Court.

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