May 15, 2006
The supreme experience | Maine lawyers who've argued before the U.S. Supreme Court say it requires the preparation and performance of a lifetime
By Taylor Smith
Bill Kayatta, a partner at Pierce Atwood in Portland, has a line on his resume that most lawyers would die for: He's logged time in front of the U.S. Supreme Court. And Kayatta's tested his legal mettle at the highest court in the land not once, but twice. "You usually count on going a whole career without getting a [Supreme Court] argument," he says. "I'm in the unusual position of having two."
Kayatta's second trip to the Supreme Court earlier this year launched him into rarified legal air, but he's not the only Maine lawyer to have gotten the call. Over the past few decades, roughly a dozen Maine lawyers ˆ from private law firms like Pierce Atwood or the state Attorney General's office ˆ have traveled to Washington, legal briefs in hand, to take the lectern before the nine Supreme Court justices.
Arguing in front of the U.S. Supreme Court is the pinnacle of the legal profession. It's the final step ˆ often after years of work ˆ for cases that have traversed the entirety of the American legal system. Getting the call to stand before the nine Supreme Court justices means something, lawyers say. Like a World Series ring for a baseball player or an Academy Award for an actor, arguing before the Supreme Court is an honor few lawyers get. "For most people, it's a lightning in a bottle experience," says Peter Brann, a partner at Lewiston-based law firm Brann & Isaacson who argued before the Supreme Court in 1999.
It's also an experience that few people hear about. News dispatches from the Supreme Court understandably focus on the proceedings ˆ the opposing arguments, for example, or what a potential court decision could mean. But since news cameras and photographers are banned from the courtroom, there's little in the way of color to illustrate the Supreme Court experience. "There's more theater in it than I thought," says Bill Plouffe, a lawyer at Drummond, Woodsum & MacMahon in Portland who argued before the Supreme Court in 1996. "It's the opportunity for this third branch of government to show itself."
The court's theatrics include a bench full of justices launching questions at a lawyer, who can either thrive or wilt under that pressure. And while that drama is likely more subdued than that of a criminal court where sensational cases play out ˆ often before a national audience ˆ there's gravity to the proceedings that the O.J. Simpson case never had. After all, the Supreme Court is the end of the road for legal matters. There's no appeal process and no second try. What the justices decide goes into the books, often with far-reaching implications for the entire American judiciary. "The issues take on a national significance," says Kayatta.
For a case to be heard by the Supreme Court, a minimum of four justices have to sign off and be willing to give it plenary review, or a full hearing that includes lawyers' oral arguments and a written decision by the justices. During its yearly sessions, which run from the first Monday in October to the end of June or early July, the court will hear just 100 or so of the 7,000 cases it receives. Cabanne Howard, a professor of law and public policy at the University of Maine School of Law in Portland, says in addition to seeking those issues of national importance, the justices typically are attracted to cases in which there appears to be some disarray in the law ˆ if, for example, the law has been interpreted in different ways by different judges around the country.
In February, for example, Kayatta represented S.D. Warren, a division of South African firm Sappi Ltd., against the Maine Bureau of Environmental Protection in what seemed like a local fight over the state's authority to regulate the company's hydroelectric dams on the Presumpscot River. But viewed through a wider lens, the case could significantly impact the Clean Water Act, a federal mandate that gives states regulatory control over their waterways. (The Supreme Court hasn't yet issued a ruling on the case, but Kayatta says it's expected before the end of the court's session.)
Similarly, Plouffe argued on behalf of the town of Harrison that a local summer camp didn't deserve its property-tax exemption. The case began as a parochial matter, but Plouffe says the Supreme Court accepted it because of a larger question of whether the state statute cited by the town is unconstitutional. "A judge on the U.S. Court of Appeals is there to decide the issue between the litigants," says Plouffe. "That's what judges do. But in the U.S. Supreme Court, they're there to decide the issue, the underlying issue. It's a different perspective."
It also requires lawyers to take a different approach to their typical court appearance. A Supreme Court case requires months of preparation, writing legal briefs and digging through decades of old case law. It means tapping into a network of legal experts around the country to discuss the relevant issues in the case. And it takes the central argument of that case to a court that Kayatta says is unlike any other in the United States. "By definition, they're usually cases where the answers are not entirely clear," he says.
The preparation
Regardless how a case gets to the Supreme Court, word that it has made the court's schedule is a surprise for most lawyers. But after the initial shock comes the realization that the attorney has a mountain of preparation to tackle. The Supreme Court operates differently than other appellate courts in that there are nine justices vetting each side's arguments as opposed to, say, three judges in federal appellate court. That's three times the number of probing questions and many more well-versed clerks scanning each brief filed for the case. "The level of analysis and rigor that the arguments have gone through by the end of briefing in the U.S. Supreme Court is extraordinary," says Kayatta.
Maine Attorney General Steven Rowe argued on behalf of the Maine Board of Environmental Protection ˆ and against Kayatta ˆ in the Supreme Court in February. To prepare for the case, Rowe worked nights and weekends around his regular caseload, reading briefs from Kayatta and amicus curiae ˆ literally, friend of the court ˆ briefs from parties supporting one side or the other. What's more, Rowe dug into decades of Clean Water Act cases, keeping tabs on how the act has been amended over time and the importance of states' enforcement of that act.
Peter Brann says he "spent weeks that turned into months" working on case briefs, which are the building blocks of any Supreme Court argument. Before the case is heard by the Supreme Court, lawyers on both sides submit detailed briefs to each other and the court. The briefs help each side prepare their arguments, but also serve as a basis for the court's understanding of the case. "Oral arguments are valuable, but I've talked to a lot of judges, and it's the briefs that are really important," says Rowe. "These judges have very, very smart law clerks who help them prepare."
For his part, Brann holed up in the Statehouse Law Library and spent hours poring through historical documents to help write the brief and frame the case, which began as a labor and employment case, but ultimately ended up in the Supreme Court as a case challenging whether Congress had the power to allow a state to be sued ˆ in its own courts ˆ by its citizens. "I read lots and lots of Supreme Court cases, then I went back and read some more," he says. "You spend time reading fascinating stuff like the Federalist Papers. The research was really [asking], what were the Founding Fathers thinking?"
There's no template, however, for drawing up the brief, according to Cabanne Howard, who in the 1980s argued a case at the Supreme Court involving the constitutionality of a Maine state law banning the importation of bait fish, and whether that law violated federal commerce rules. The challenge for lawyers, he says, is to submit a brief that clearly outlines the case without getting bogged down in procedural muck or winding off on an unnecessary legal tangent. "I think it's a common failing from some people writing briefs that it should be long," says Howard. "The advice I've been given is what the Queen of Hearts said to Alice in the courtroom scene in Alice in Wonderland: 'Begin at the beginning, and when you get to the end, stop.'"
Leading up to the actual court date, most lawyers also stage rehearsals of the main event in the form of moot courts, where colleagues and law experts essentially stand in for the Supreme Court justices. "They're very helpful," says Rowe of the moot courts, which he set up at the National Association of Attorneys General and the Georgetown University Law Center, both in Washington, D.C., prior to his Supreme Court appearance. "They help you to think on your feet."
During these exercises, the participants work to expose fissures in the lawyer's case. Lawyers hope the bombardment of questions from the pretend justices will help refine their argument before they face the Supreme Court justices' notoriously varied lines of inquiry. "The point of all these practices is to think up all the questions that these justices might ask so you don't get knocked off balance by somebody," says Howard.
A day in court
At some point, though, it's time to put down the law books, wrap up the practice trials and head to court. While some cram until the last minute, others prefer to take a breather before oral arguments. Lewiston-based lawyer Peter Brann mixed in a bit of sightseeing with his moot courts, shepherding his family to D.C. tourist attractions like the Washington Monument and the Air & Space Museum. Others choose to relax over a quiet dinner, like Howard, who took his wife to an out-of-the-way restaurant near their alma mater, Georgetown University, on the evening before his 1986 Supreme Court appearance.
But few would hope for an arrival to Washington like the one experienced by Plouffe of Drummond, Woodsum & MacMahon. Plouffe got stranded in Philadelphia the night before his court date after thunderstorms canceled his connecting flight to D.C. So he hopped an Amtrak to Washington with a colleague, Drummond, Woodsum & MacMahon partner Hugh MacMahon, but the pair left their luggage on the tarmac in Philly. MacMahon came to the rescue early the following morning ˆ just hours before Plouffe was due in court ˆ by finding the bags at what is now Reagan National Airport in nearby Arlington, Va. Had MacMahon not come through with Plouffe's blue suit and white shirt, he would have had to show up in court in the brown suit he wore on the plane. "I would have stuck out like a sore thumb," he says.
No matter how prepared a lawyer is, standing before the Supreme Court's can be a nerve-wracking experience. (For more on this, see "Approaching the bench," page 19.) During the court's sittings, when cases are heard, court runs from 10 a.m.-3 p.m. from Monday through Wednesday, and the justices will hear as many as 24 cases during each two-week sitting. After the Marshal calls the court to session with a bang of a gavel and a formal introduction of the justices, oral arguments begin with the petitioner ˆ the lawyer for the side of the dispute that petitioned the court ˆ who has 30 minutes to present his or her case. That's followed by 30 minutes of argument by the respondent. Lawyers don't call witnesses, and there's no jury hearing the case. Likewise, the lawyer's lectern isn't a pulpit for speeches. Instead, the proceedings have been described as a conversation between the lawyer and the justices ˆ though a conversation that sometimes seems more like an inquisition.
Bill Kayatta says he received 45 questions from the nine justices in his 30-minute oral argument during his first Supreme Court appearance in 1999, when he represented what was then called UNUM Life Insurance Co. in a federalism case. Such rapid-fire questioning doesn't leave much wiggle room for ill-prepared counsel. "You have to not only anticipate what the question will be and thought through the answer, but spent the time to refine the answer down to a very short answer," Kayatta says.
That said, lawyers say it's nearly impossible to predict every question the justices will ask. The transcript of the S.D. Warren case shows the Supreme Court justices in full swing, with both Kayatta and Rowe being peppered with questions during the entirety of their oral arguments. And often, a question isn't fully answered before another justice interrupts with a new one. (It seems, however, that this hard edge of the Supreme Court is beginning to soften under the guidance of Chief Justice John Roberts, who was appointed last September. A New York Times article from early May quotes a number of frequent arguers in the Supreme Court who note that there's less overtalk and interruption among the justices, and that questions have not been as rapid as in the past.)
The questioning certainly throws some lawyers for a loop ˆ Kayatta recalls seeing a lawyer become so flustered by the justices' questions that he just sat down midway through his oral argument. But most lawyers say it's the court's job to debate them and probe with questions. "An appellate argument is a conversation, it's not an opportunity for oratory. You don't want to make a speech," says Howard, in whose favor the justices decided the case by an 8-1 margin. "Only about 10% of cases in appellate courts are changed by the oral argument. Most of the time, the judge will pretty much tell you what they're thinking [through their questions], and it's your chance to try and talk them out of it."
Once the argument is over, however, there's nothing more. Lawyers can't continue to plead their case through briefs or other legal missives. In fact, there's nothing to do but leave the court and sit tight. The justices eventually will pass down a decision, though there's no predictable time frame for learning a case's fate ˆ it can take anywhere from a few weeks to six months to receive the justices' decision.
But whatever the final result, lawyers who have gotten the opportunity to argue before the U.S. Supreme Court say it's a monumental experience. Bill Plouffe's case ended with a 5-4 decision against his client, the town of Harrison. The decision didn't surprise Plouffe ˆ he said he expected it to be a close vote. And win or lose, it was an experience he was happy to pass on. "I knew my son was interested in maybe going to law school, and afterwards, outside the court, I gave him the brief," he says. "It's kind of like the game ball. He's practicing law down in Boston now."
Kayatta's second trip to the Supreme Court earlier this year launched him into rarified legal air, but he's not the only Maine lawyer to have gotten the call. Over the past few decades, roughly a dozen Maine lawyers ˆ from private law firms like Pierce Atwood or the state Attorney General's office ˆ have traveled to Washington, legal briefs in hand, to take the lectern before the nine Supreme Court justices.
Arguing in front of the U.S. Supreme Court is the pinnacle of the legal profession. It's the final step ˆ often after years of work ˆ for cases that have traversed the entirety of the American legal system. Getting the call to stand before the nine Supreme Court justices means something, lawyers say. Like a World Series ring for a baseball player or an Academy Award for an actor, arguing before the Supreme Court is an honor few lawyers get. "For most people, it's a lightning in a bottle experience," says Peter Brann, a partner at Lewiston-based law firm Brann & Isaacson who argued before the Supreme Court in 1999.
It's also an experience that few people hear about. News dispatches from the Supreme Court understandably focus on the proceedings ˆ the opposing arguments, for example, or what a potential court decision could mean. But since news cameras and photographers are banned from the courtroom, there's little in the way of color to illustrate the Supreme Court experience. "There's more theater in it than I thought," says Bill Plouffe, a lawyer at Drummond, Woodsum & MacMahon in Portland who argued before the Supreme Court in 1996. "It's the opportunity for this third branch of government to show itself."
The court's theatrics include a bench full of justices launching questions at a lawyer, who can either thrive or wilt under that pressure. And while that drama is likely more subdued than that of a criminal court where sensational cases play out ˆ often before a national audience ˆ there's gravity to the proceedings that the O.J. Simpson case never had. After all, the Supreme Court is the end of the road for legal matters. There's no appeal process and no second try. What the justices decide goes into the books, often with far-reaching implications for the entire American judiciary. "The issues take on a national significance," says Kayatta.
For a case to be heard by the Supreme Court, a minimum of four justices have to sign off and be willing to give it plenary review, or a full hearing that includes lawyers' oral arguments and a written decision by the justices. During its yearly sessions, which run from the first Monday in October to the end of June or early July, the court will hear just 100 or so of the 7,000 cases it receives. Cabanne Howard, a professor of law and public policy at the University of Maine School of Law in Portland, says in addition to seeking those issues of national importance, the justices typically are attracted to cases in which there appears to be some disarray in the law ˆ if, for example, the law has been interpreted in different ways by different judges around the country.
In February, for example, Kayatta represented S.D. Warren, a division of South African firm Sappi Ltd., against the Maine Bureau of Environmental Protection in what seemed like a local fight over the state's authority to regulate the company's hydroelectric dams on the Presumpscot River. But viewed through a wider lens, the case could significantly impact the Clean Water Act, a federal mandate that gives states regulatory control over their waterways. (The Supreme Court hasn't yet issued a ruling on the case, but Kayatta says it's expected before the end of the court's session.)
Similarly, Plouffe argued on behalf of the town of Harrison that a local summer camp didn't deserve its property-tax exemption. The case began as a parochial matter, but Plouffe says the Supreme Court accepted it because of a larger question of whether the state statute cited by the town is unconstitutional. "A judge on the U.S. Court of Appeals is there to decide the issue between the litigants," says Plouffe. "That's what judges do. But in the U.S. Supreme Court, they're there to decide the issue, the underlying issue. It's a different perspective."
It also requires lawyers to take a different approach to their typical court appearance. A Supreme Court case requires months of preparation, writing legal briefs and digging through decades of old case law. It means tapping into a network of legal experts around the country to discuss the relevant issues in the case. And it takes the central argument of that case to a court that Kayatta says is unlike any other in the United States. "By definition, they're usually cases where the answers are not entirely clear," he says.
The preparation
Regardless how a case gets to the Supreme Court, word that it has made the court's schedule is a surprise for most lawyers. But after the initial shock comes the realization that the attorney has a mountain of preparation to tackle. The Supreme Court operates differently than other appellate courts in that there are nine justices vetting each side's arguments as opposed to, say, three judges in federal appellate court. That's three times the number of probing questions and many more well-versed clerks scanning each brief filed for the case. "The level of analysis and rigor that the arguments have gone through by the end of briefing in the U.S. Supreme Court is extraordinary," says Kayatta.
Maine Attorney General Steven Rowe argued on behalf of the Maine Board of Environmental Protection ˆ and against Kayatta ˆ in the Supreme Court in February. To prepare for the case, Rowe worked nights and weekends around his regular caseload, reading briefs from Kayatta and amicus curiae ˆ literally, friend of the court ˆ briefs from parties supporting one side or the other. What's more, Rowe dug into decades of Clean Water Act cases, keeping tabs on how the act has been amended over time and the importance of states' enforcement of that act.
Peter Brann says he "spent weeks that turned into months" working on case briefs, which are the building blocks of any Supreme Court argument. Before the case is heard by the Supreme Court, lawyers on both sides submit detailed briefs to each other and the court. The briefs help each side prepare their arguments, but also serve as a basis for the court's understanding of the case. "Oral arguments are valuable, but I've talked to a lot of judges, and it's the briefs that are really important," says Rowe. "These judges have very, very smart law clerks who help them prepare."
For his part, Brann holed up in the Statehouse Law Library and spent hours poring through historical documents to help write the brief and frame the case, which began as a labor and employment case, but ultimately ended up in the Supreme Court as a case challenging whether Congress had the power to allow a state to be sued ˆ in its own courts ˆ by its citizens. "I read lots and lots of Supreme Court cases, then I went back and read some more," he says. "You spend time reading fascinating stuff like the Federalist Papers. The research was really [asking], what were the Founding Fathers thinking?"
There's no template, however, for drawing up the brief, according to Cabanne Howard, who in the 1980s argued a case at the Supreme Court involving the constitutionality of a Maine state law banning the importation of bait fish, and whether that law violated federal commerce rules. The challenge for lawyers, he says, is to submit a brief that clearly outlines the case without getting bogged down in procedural muck or winding off on an unnecessary legal tangent. "I think it's a common failing from some people writing briefs that it should be long," says Howard. "The advice I've been given is what the Queen of Hearts said to Alice in the courtroom scene in Alice in Wonderland: 'Begin at the beginning, and when you get to the end, stop.'"
Leading up to the actual court date, most lawyers also stage rehearsals of the main event in the form of moot courts, where colleagues and law experts essentially stand in for the Supreme Court justices. "They're very helpful," says Rowe of the moot courts, which he set up at the National Association of Attorneys General and the Georgetown University Law Center, both in Washington, D.C., prior to his Supreme Court appearance. "They help you to think on your feet."
During these exercises, the participants work to expose fissures in the lawyer's case. Lawyers hope the bombardment of questions from the pretend justices will help refine their argument before they face the Supreme Court justices' notoriously varied lines of inquiry. "The point of all these practices is to think up all the questions that these justices might ask so you don't get knocked off balance by somebody," says Howard.
A day in court
At some point, though, it's time to put down the law books, wrap up the practice trials and head to court. While some cram until the last minute, others prefer to take a breather before oral arguments. Lewiston-based lawyer Peter Brann mixed in a bit of sightseeing with his moot courts, shepherding his family to D.C. tourist attractions like the Washington Monument and the Air & Space Museum. Others choose to relax over a quiet dinner, like Howard, who took his wife to an out-of-the-way restaurant near their alma mater, Georgetown University, on the evening before his 1986 Supreme Court appearance.
But few would hope for an arrival to Washington like the one experienced by Plouffe of Drummond, Woodsum & MacMahon. Plouffe got stranded in Philadelphia the night before his court date after thunderstorms canceled his connecting flight to D.C. So he hopped an Amtrak to Washington with a colleague, Drummond, Woodsum & MacMahon partner Hugh MacMahon, but the pair left their luggage on the tarmac in Philly. MacMahon came to the rescue early the following morning ˆ just hours before Plouffe was due in court ˆ by finding the bags at what is now Reagan National Airport in nearby Arlington, Va. Had MacMahon not come through with Plouffe's blue suit and white shirt, he would have had to show up in court in the brown suit he wore on the plane. "I would have stuck out like a sore thumb," he says.
No matter how prepared a lawyer is, standing before the Supreme Court's can be a nerve-wracking experience. (For more on this, see "Approaching the bench," page 19.) During the court's sittings, when cases are heard, court runs from 10 a.m.-3 p.m. from Monday through Wednesday, and the justices will hear as many as 24 cases during each two-week sitting. After the Marshal calls the court to session with a bang of a gavel and a formal introduction of the justices, oral arguments begin with the petitioner ˆ the lawyer for the side of the dispute that petitioned the court ˆ who has 30 minutes to present his or her case. That's followed by 30 minutes of argument by the respondent. Lawyers don't call witnesses, and there's no jury hearing the case. Likewise, the lawyer's lectern isn't a pulpit for speeches. Instead, the proceedings have been described as a conversation between the lawyer and the justices ˆ though a conversation that sometimes seems more like an inquisition.
Bill Kayatta says he received 45 questions from the nine justices in his 30-minute oral argument during his first Supreme Court appearance in 1999, when he represented what was then called UNUM Life Insurance Co. in a federalism case. Such rapid-fire questioning doesn't leave much wiggle room for ill-prepared counsel. "You have to not only anticipate what the question will be and thought through the answer, but spent the time to refine the answer down to a very short answer," Kayatta says.
That said, lawyers say it's nearly impossible to predict every question the justices will ask. The transcript of the S.D. Warren case shows the Supreme Court justices in full swing, with both Kayatta and Rowe being peppered with questions during the entirety of their oral arguments. And often, a question isn't fully answered before another justice interrupts with a new one. (It seems, however, that this hard edge of the Supreme Court is beginning to soften under the guidance of Chief Justice John Roberts, who was appointed last September. A New York Times article from early May quotes a number of frequent arguers in the Supreme Court who note that there's less overtalk and interruption among the justices, and that questions have not been as rapid as in the past.)
The questioning certainly throws some lawyers for a loop ˆ Kayatta recalls seeing a lawyer become so flustered by the justices' questions that he just sat down midway through his oral argument. But most lawyers say it's the court's job to debate them and probe with questions. "An appellate argument is a conversation, it's not an opportunity for oratory. You don't want to make a speech," says Howard, in whose favor the justices decided the case by an 8-1 margin. "Only about 10% of cases in appellate courts are changed by the oral argument. Most of the time, the judge will pretty much tell you what they're thinking [through their questions], and it's your chance to try and talk them out of it."
Once the argument is over, however, there's nothing more. Lawyers can't continue to plead their case through briefs or other legal missives. In fact, there's nothing to do but leave the court and sit tight. The justices eventually will pass down a decision, though there's no predictable time frame for learning a case's fate ˆ it can take anywhere from a few weeks to six months to receive the justices' decision.
But whatever the final result, lawyers who have gotten the opportunity to argue before the U.S. Supreme Court say it's a monumental experience. Bill Plouffe's case ended with a 5-4 decision against his client, the town of Harrison. The decision didn't surprise Plouffe ˆ he said he expected it to be a close vote. And win or lose, it was an experience he was happy to pass on. "I knew my son was interested in maybe going to law school, and afterwards, outside the court, I gave him the brief," he says. "It's kind of like the game ball. He's practicing law down in Boston now."
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