ARGUMENT IN THE SUPREME COURT
OF THE UNITED STATES
Stephen M. Shapiro
The art of oral argument in the Supreme Court of the
United States has been discussed with great competence by a number of
distinguished writers.1 Before approaching the
lectern of the Supreme Court, any advocate would do well to consult these
eminent authorities. There is one aspect of the argument process, however, which
has not, in my judgment, received the emphasis which it deserves. And to this
extent, the neophyte may go astray. While Justice Jackson has likened oral
argument to the stately process of "building a Cathedral,"2 counsel is apt to conclude, after completing a first
argument, that the experience is more akin to an intense athletic contest,
hedged by rigid time restrictions and potentially fatal fumbles and missteps.
Unlike the builder of a cathedral, the Supreme Court advocate does not have the
luxury of time, and the preconceived architecture of the argument must, in
nearly every instance, be set aside in its entirety. The intensity of the
debate, and the shortness of available time, are all important aspects of
Supreme Court argument which require the advocate's closest
of Oral Argument
to the specifics of oral argument technique, it is useful for the attorney,
facing his or her first argument in the Supreme Court, to try to envision what
it is that the Justices expect to accomplish through oral argument, and likewise
to bear in mind what experienced advocates seek to accomplish. By viewing the
oral argument process from both sides of the bench, the advocate is better
equipped to give an effective presentation and to anticipate and grapple with
questions from the Court.
observers of the argument sessions of the Supreme Court would agree, I think,
that the Justices utilize the oral argument process to achieve the following
Clarification of the record. In nearly every argument, the Justices
attempt to bring into better focus important record facts, including details of
relevant pleadings, findings at the trial or administrative level, holdings of
the lower courts, steps taken to preserve points in the trial court and on
appeal, and the adequacy of the specification of questions presented in the
petition for certiorari or jurisdictional statement.
Clarification of the substance of claims. Despite the best efforts of the
brief writer, it is common for the Justices to insist upon a further explanation
concerning the precise nature of the claims presented to the Court. What exactly
is counsel contending in the Supreme Court?
Clarification of the scope of claims. More so than most lower courts, the
Supreme Court is interested in the scope of arguments and principles relied on
by the parties. How far does the principle go that counsel invokes? This, of
course, is the domain of the hypothetical questions, which the Justices propound
with frequency during oral argument.
Examination of the logic of claims. The Justices commonly require
attorneys to explain apparent inconsistencies between oral statements and
positions articulated in the briefs, or discrepancies between findings made by
the lower courts and positions taken in the Supreme Court. Still more
frequently, the Justices require counsel to explain how his or her position can
be reconciled with past relevant decisions of the Supreme Court, or the plain
language, structure, or history of controlling statutes.
Examination of the practical impact of claims. Since the Justices are
responsible for rendering decisions that embody wise policy consistent with the
intent of Congress and the framers of the Constitution, they persistently
inquire into the practical impact of the positions advocated by counsel. Will a
particular position impose excessive burdens on law enforcement officers,
interfere unreasonably with the freedoms of private citizens, or hamper the
legitimate activities of honest businessmen?
for or against particular positions. Several of the Justices use oral
argument as an early opportunity to make known their tentative views to the
other Justices, and to express, at least indirectly, their agreement or
disagreement with the submissions of counsel. Thus, to some extent, the argument
serves as an early conference, where the views of both lawyers and judges can be
expressed and debated. The use of the argument for this purpose — in addition to
the clarification of factual and legal uncertainties — raises difficult tactical
problems which are discussed in greater detail below.
It also is useful to consider the objectives of oral argument from
the point of view of experienced Supreme Court advocates. The following summary
of objectives is based on observations of senior attorneys in the Office of the
Motivating the Justices to view the case sympathetically. Every advocate is, in
an important sense, a salesperson, and the object of advocacy is persuasion of
other human beings. Oral argument is the lawyer's only opportunity to meet the
decision makers eye to eye, without "screening" from law clerks, and without
distractions from the five thousand other cases that the Court confronts each
year. Oral argument gives the advocate the opportunity to personally motivate
the Justices to rule in his favor by conveying the impression that fairness,
common sense, and the general public interest strongly support his
Simplifying information needed to decide the case in counsel's favor.
Oral argument offers the opportunity to separate out the truly important,
pivotal considerations in a case, and to give the Justices the few specific
"implements of decision" which are needed to resolve the case in a correct
manner. Counsel must bear in mind that the Justices cast their votes in
conference only a few days after hearing oral argument in twelve cases, nearly
all of which have extensive records and lengthy briefs. It is essential,
therefore, to give the Justices the few specific points that are needed to
resolve the case correctly, and which will remain in the Justices' minds until
to rest concerns or difficulties that the Justices express. In nearly every
oral argument, the Justices express their misgivings, concerns, and doubts about
counsel's submission. Some of them may tell counsel precisely what their pivotal
uncertainty is and invite him to dispel that uncertainty. This, of course, is an
opportunity to lay to rest not only their concerns, but also those of other
Justices who share the same point of view. Although the observation is hardly
original, it is important to reiterate that oral argument is counsel's only
opportunity to effectively "participate in the conference" and come to grips
with the real questions that trouble the Court.
d) Making a
positive and memorable personal impression. Cases in the Supreme Court
frequently are close, and the Justices look to counsel for guidance and
leadership. If the Court has confidence in counsel, this will smooth the way to
acceptance of counsel's arguments. By contrast, an attorney who makes a poor
personal impression necessarily raises obstacles to acceptance of his or her
contentions. The personal impression that one must convey is that of
respectfulness, utmost candor, reliability, complete knowledge of the record,
and sincere conviction. These impressions derive not only from the substance and
style of the argument, but also from subtle forms of nonverbal communication —
including counsel's tone of voice, "body language," and attire. In arguing
policy positions, counsel must endeavor to convey the impression that such
positions are carefully considered and reasonably formulated in light of the
interests of all affected persons.
Demonstrating that the argument hangs together under fire. Oral argument
is the anvil on which a solid position is hammered out and confirmed — or
shattered entirely by repeated blows. Effective advocates use oral argument to
dramatically demonstrate that their position is sound. Thus, despite difficult
questions and criticism, there always is a logical response and the argument
hangs together in a coherent way. There are, in short, no hidden defects, gaps
in reasoning, or unanticipated consequences. Some arguments fall apart entirely
under the pressure of argument. Other arguments, which have been carefully honed
in advance, are strengthened and confirmed by the process of
Argument preparation is an essential means to meet the goals
described above.4 It is a truism that counsel should
"know the record from cover to cover." But the point is of crucial importance.
Not only is familiarity with the record essential to provide specific
information to the Justices, but it is also essential to convey the impression
of reliability and leadership that is fundamental to any effective presentation.
The attorney who cannot turn, in a moment, to an essential part of the record,
or who cannot answer questions about the state of the record, will not command
the confidence of the Justices.
connection, however, it is essential to undertake a rough cost/benefit analysis
early in the process of preparing for oral argument. If the record is truly
voluminous — as, for example, the record of a six month antitrust trial —
counsel may simply not have time to personally read each page of testimony and
each exhibit. Any attempt to do so would undermine preparation on other central
matters. The solution, in this instance, is to obtain the help of trial counsel
and junior assistants, who can identify essential portions of the record for
review and provide concise summaries of the remainder. In addition, a close
reading of the Supreme Court's past relevant decisions will acquaint one with
the record facts that have been deemed important by the Justices in similar
situations. The attorney who argues the case must master such facts through
personal study, despite the length of the record. Of course, any portions of the
record cited in the briefs or the opinions below imperatively call for counsel's
is preparing for oral argument, it is advisable to spend a day or two listening
to arguments at the Supreme Court in Washington, D.C. Even counsel who have
argued frequently before the Court get a better "feel" for courtroom dialectics
through these regular visits, and are more comfortable with the argument when
their case is called for presentation. If the Court is not in session, counsel
may wish to listen to tape recordings of oral arguments at the National Archives
in Washington, D.C. It is also possible to examine transcripts of past Supreme
Court arguments, which are available in microfiche form in law libraries
throughout the nation.
significant case authorities must be read and reread before argument, while
peripheral cases may be reviewed through summaries from assistants. Counsel also
should try to "read around" in the area, including any relevant law review
articles and policy-oriented materials such as economics studies. Familiarity
with issues of policy will better equip counsel to deal with the questions
likely to be heard from the bench.
preparation also requires the advocate to think through the theory of his or her
case and consider its relationship to other areas of law. It is not enough to
have an internally logical theory of law. Questions from the bench almost
certainly will require counsel to explain the connection between his or her
argument and other related legal subjects. For example, in a case involving
forum shopping challenged under the due process clause, the Court is likely to
inquire: what is the relevance of the doctrine of forum non conveniens,
statutory transfer under 28 U.S.C. § 1404, and venue restrictions? The issues,
in short, should not be considered in isolation. Counsel should use a
"macroscope" as well as a "microscope" in examining the legal issues and
submitted by counsel to the Supreme Court, and each proposition to be covered
during oral argument, must be reviewed from the point of view of a skeptical or
hostile Justice who is intent upon exposing all latent fallacies and errors. Jot
down such questions and think through the best response. The very process of
anticipating questions and devising effective replies will strengthen one's
understanding of the legal issues, and help to build an intellectual framework
that lends substantial assistance in dealing with even unanticipated questions
from the bench. An assistant with an objective viewpoint should be recruited for
the purpose of identifying questions.
In trying to
anticipate questions from the bench, it should be kept in mind that many
questions will pertain to the familiar, common-sense themes discussed
previously. What is the case about? (What are the record facts and procedural
history?) What do you want? (What holding do you want in this case? What rule do
you want the Court to adopt to justify that holding? Is there any other rule
that would satisfy you?) How would your rule work? (What are the practical
consequences of the rule? How would it change current practices? Can it be
administered?) Can the Court do that? (Is there a legally respectable argument
for the rule? Does it have support in relevant authorities? Is it consistent
with what the Court has said before?) Why should we do that? (What values and
interests would be advanced by adoption of the proposed rule? Would opposing
values and interests be fairly accommodated? Why is the rule sought by counsel
preferable to the alternative?) After anticipating questions in these
categories, counsel should develop simple and common-sense replies. They should
be convincing on an intuitive level, even to the layman.
preparing for argument should discuss the issues in the case with anyone who
will listen. Intelligent laymen may raise questions that are highly pertinent,
as may attorneys who specialize in other fields of law. Specialists in the
field, of course, can provide sophisticated insights into potential
difficulties. If the case arises in a field of interests to nonlawyer
specialists, such as economists, sociologists, or businessmen, the issues should
be discussed with such persons as well. Brainstorming sessions with such persons
frequently result in the identification of questions and issues that later arise
during the course of oral argument.
Perhaps a week
in advance of the scheduled oral argument, it is advisable to conduct one or
more moot court sessions. Enough time should be allowed to assimilate the
questions and revise the argument outline after the moot court. It also is
essential to tape record the oral argument presentation to assure that it can be
covered in the allotted time, and to assure that all of the expressions to be
used in court are easily comprehended through the spoken word. Many expressions
that make perfect sense in written form are highly awkward, if not
incomprehensible, when spoken. The tape recorder is effective in "revealing what
kind of rhetoric gets across" through the oral medium.
every oral argument is punctuated with intense questioning, the argument is not
under counsel's complete control. It is essential, therefore, to plan an
argument that expands or contracts depending upon the amount of questioning from
the bench. Needless to say, the three or four most important points should be
identified in advance. And the oral argument outline should be clearly marked to
show which matters are dispensable if questioning becomes
Substance of Oral Argument
text, history, and purpose of the Constitution and federal legislation are the
most important factors in analyzing legal issues, there is no doubt that the
Supreme Court, sitting as a tribunal of last resort, is a body which declares
public policy. To be effective, therefore, counsel must convince the Court that
his or her position is sensible, good for the nation, and fair and reasonable
for all persons affected by the Court's decision.
Most of the
cases which reach the Supreme Court are doubtful, and respectable opinions could
be written to justify either affirmance or reversal. In this situation,
technical legal reasoning will not suffice. The Supreme Court is called upon to
render wise decisions which serve the welfare of the entire nation. Its
decisions, if erroneous, are extremely difficult to correct through the process
of legislative revision or constitutional amendment. The Court is well aware of
this. It accordingly is most receptive to arguments which demonstrate that
counsel's legal theory is beneficial to the public, administratively feasible,
and consistent with the teaching of past experience.
oral argument must address the reason "why" counsel's position makes good sense
— not merely the technical aspects of the case which are discussed in the
briefs. This means that counsel should not depend heavily on case authority.
During the course of oral argument, it ordinarily is inappropriate to refer to
more than two or three decisions. And those should be Supreme Court decisions.
The Court is unimpressed with arguments that depend on decisions of lower
federal courts or state courts.
observations about the structure of the oral argument also may be useful. Every
good salesman knows that the first few minutes of an oral presentation are
important. In the Supreme Court, this also is the case. The introduction should
orient the Court so that it can easily follow the subsequent development of the
In a few
sentences, counsel should tell the Court how the case reached it, what kind of
case it is, what counsel's submission is, and what subjects he or she plans to
cover in the allotted time. For example, after being recognized by the Chief
Justice, the petitioner might begin as follows:
Thank you Mr.
Chief Justice, and may it please the Court. This case is here on the State of
Illinois' petition for certiorari to the Illinois Supreme Court. The State
contends that the court below erred when it required suppression of relevant
evidence. After briefly summarizing the facts, I would like to explain why the
court below misconceived this Court's decisions in the Aguilar and
Spinelli cases, and then explain why, in any event, the evidence should
be admitted in view of the good faith of the arresting
turn, might begin as follows:
Justice, and may it please the Court. Respondent submits that the decision below
was compelled by the holding and logic of this Court's decisions in
Aguilar and Spinelli, and that the purposes of the Fourth
Amendment require adherence to those precedents. After describing several
essential facts that have been overlooked by petitioner, I would like to
summarize the important Fourth Amendment goals that are served by the
suppression order in this case.
Some cases, of course, require more factual
development than others. For example, in Illinois v. Gates,5 the state of Illinois obtained a substantial tactical
advantage by dwelling on the facts of record, which, Justice Rehnquist has
stated, "reeked of probable cause,"6 Even in such a
case, however, the facts must be distilled and simplified. The spoken word will
not bear the burden of many detailed facts. While the eye can take in such
detail, the ear cannot. In most instances, therefore, it is advisable to limit
the preliminary statement of the facts to five minutes or less. The Justices, of
course, have a clear view of the facts from the briefs and opinions below, and
are free to ask questions pertaining to the facts as the argument progresses.
Moreover, during the course of arguing the substantive issues, counsel can weave
in the facts as they become relevant. The danger inherent in an extended
preliminary discussion of the facts is that counsel is very likely to become
bogged down on peripheral questions relating to the record, only to find that
most of his or her argument time has elapsed before the affirmative points
needed to win the case have been introduced.
the argument, the advocate should attempt to "go for the jugular" by leading off
with the most persuasive point. Critical points should not, of course, be lost
in the shuffle by reserving them for the end. To the extent possible, however,
counsel should attempt to end the argument on a high note, just as he or she has
opened it on a high note. Trial lawyers know that opening and closing remarks
are the most memorable part of any courtroom communication, and this holds true
of oral argument in the Supreme Court. The argument will stick in the Justices'
memory if it both begins and ends on a strong point.
point ordinarily will be the point which has to be gotten across to win the
case. Counsel must grab the bull by the horns and give his most convincing
argument on this critical issue. It is a mistake to lead off the analysis with
an argument of lesser persuasiveness, or an argument that is unnecessarily
provocative or dubious. Such an argument will generate friction with the
Justices and cast a pall of skepticism over the entire presentation.
In preparing the oral argument, counsel should bear
in mind the terms of the Supreme Court Rule 38, which states that "oral argument
should undertake to emphasize and clarify the written argument appearing in the
briefs. . . ."7 This means that the argument should
give "flesh and blood" to the detailed legal arguments contained in the brief.
It does not mean that the brief should be merely summarized or paraphrased.
Indeed, Rule 38 advises counsel "that all Members of the Court have read the
briefs in advance of argument."8 The rule thus
directs counsel to go to the heart of the case in common-sense terms, rather
than repeating the technical points set forth in the briefs on the
The points made during oral argument should be positive, not merely
negative retorts to points made by one's opponent or by the court below. Counsel
must, therefore, give the Court a better alternative than his or her opponent
has offered. The alternative must be a fair solution to a real world problem,
not just a technical legal argument. The solution proposed must reasonably
accommodate competing interests, must be practical from an administrative point
of view, and must have desirable practical consequences. As Deputy Solicitor
Geller has observed, an effective argument convinces the Court that "the world
will be a better place" if counsel's submissions are accepted.9
advanced by one's opponent also may be dealt with briefly, but the refutation
should be straightforward and easy to comprehend. Frequently, a discussion of
the adverse practical effects of the opponent's argument is sufficient to
demonstrate its weakness. For example: "If petitioner's expansive jurisdictional
theory were accepted, that would mean that companies which sell their products
on a nationwide basis could be sued in any State, regardless of the
residence of the parties and the witnesses and regardless of the place of the
tort. A New York case could be dragged into the courts of Hawaii or Alaska for
no better reason than the plaintiff's desire to avoid the statute of limitations
in New York. This would invite forum shopping on the grandest scale."
A few hints about some of the narrower points of
oral argument also may be helpful. Counsel should not read at length from
statutes, cases, or legislative history. This is a terrible bore and a waste of
time. At the same time, however, one must come to grips with, and briefly
quote, the plain language of any statute or constitutional provision that is
controlling. As the Supreme Court stated in Ernst & Ernst v.
Hochfelder,10 the starting point in every
case of statutory construction is the text of the statute itself. Indeed, in
cases involving questions of statutory construction, the Court is highly
skeptical of policy arguments that are not firmly rooted in the controlling
sometimes arises whether counsel may go beyond the record during oral argument.
In making an affirmative contention, one should adhere closely to the record. In
response to a specific question, however, counsel may transcend the bounds of
the record. He or she should first inform the Court that the answer to the
question is beyond the record, then provide the answer, and finally state the
source of his or her information. In particular, the Court expects lawyers for
governmental units to be able to provide information about the government's own
The style of
the argument must, in all respects, be simple and hard hitting. Nothing
detailed, subtle, or rhetorical ever gets across during oral argument. For
example, lengthy citations of statistics are nearly indigestible, as are chapter
and verse citations to cases. Long sentences and windy paragraphs are nearly
impossible to comprehend. As previously noted, one must at all times bear in
mind the inherent limitations of the spoken word.
advocate should remember that the greatest barrier to an effective argument is
boredom. It is imperative that the argument be vivid and striking. This does not
result, of course, from exaggeration or from irrelevant emotional appeals.
Counsel should never attempt to harangue the Justices or to speak in the florid
and emotional style cultivated by some trial attorneys. Counsel's speech should,
however, be varied, with changes in inflection, volume, and pace. An occasional
appropriate metaphor also may be relied upon to facilitate communication. The
style of the presentation should fall approximately halfway between a formal
speech and a personal conversation. It must be clear, forceful, and emphatic,
without any element of stilted oratory or artificial rhetoric.
Mechanics of Delivering Oral Argument
The technique for delivering an oral argument varies from attorney
to attorney. There is no single technique which all experienced attorneys
follow. A few general observations, however, are applicable even in this area.
Initially, as the Supreme Court's rules admonish in italicized words: "The
Court looks with disfavor on any oral argument that is read from a prepared
text."12 Reading from a prepared text is sure
to put any audience to sleep, and the favorable personal impression required of
the successful advocate cannot be achieved without continuous eye
This does not
mean, however, that counsel should approach the lectern with no oral argument
notes or outline. Although a few advocates are able to present effective
arguments without reliance on notes, most find that an outline or list of points
is essential to assure continuity in the argument, to permit quick returns to
important subjects after sharp debates with the Court, and to avoid delays while
counsel gropes for the next point to be covered.
Many attorneys bring with them to the lectern a one or two page
outline of key points and phrases or quotations. Robert L. Stern observes that
he frequently writes out his arguments in advance in order to think through each
point clearly, and then distills the written text to an outline containing key
headings, words and phrases.13 A glance at the
outline permits him to recall the substance of the points he wishes to
attorneys bring with them a text, which they do not read, but which they use to
refresh their recollection by glancing at the familiar points set forth in the
text. Still others use note cards, arranged in proper sequence, to remind them
of points and authorities. If counsel has not yet decided which of these
techniques is most effective, it is advisable to experiment with different
techniques during moot court sessions prior to the argument in the Supreme
No matter what
form the outline, notes, or text ultimately may take, counsel should indicate in
dark ink the portions of the argument that are most important and the portions
that are expendable in the event of intense questioning. Likewise, when facts,
quotations, or cases are to be discussed during oral argument, the correct page
references should be noted in the margin for citation to the Court if it
requests such information. Detailed record citations also may be placed on note
cards for ready reference in the event that the Court seeks specific
When approaching the lectern,14 counsel should be equipped with all of the basic
materials needed for responses to detailed questioning. Next to him at counsel
table or lodged in the hands of an assistant, he should have copies of all
petitions, briefs, and appendices filed in his case in the Supreme Court.
Likewise, he should be armed with copies of any record materials that are
relevant to the argument, copies of any portions of legislative history that
could be pertinent, and copies of the most significant cases. It is not
advisable, however, to carry to the lectern the entire record, although an
assistant may have the most important portions ready at hand. All such materials
should be tabbed so that counsel can get to relevant portions in a moment. The
object, of course, is to have close at hand anything that might be quoted to the
Justices, or anything that might be needed to answer a question or to respond to
the argument of the opponent.15
argument commences, counsel should jot down the time that appears on the large
clock behind the bench in the courtroom. This permits a quick determination at
any point during the argument of how much time has elapsed and allows counsel to
decide "on the fly" how much of the argument outline can be covered and how much
must be abandoned.
Obtaining assistance from an associate at counsel table is
permissible, but, if repeated, can create the negative impression that one is
poorly prepared. If the Court asks an important question that counsel cannot
answer, he may turn briefly to an assistant for the requested information.16 It is important to settle in advance what to do
about the passing of notes from assistants. Ordinarily, a stream of notes
containing bright ideas is an enormous distraction, and should be forbidden. It
is not possible to pay attention to the questions asked by the Justices and the
arguments of the opponent while attempting to decipher handwritten notes of an
assistant. Note passing should be permitted only in a real emergency, or when
the oral advocate requests written assistance.
Much advice has been given about effective public speaking in the
Supreme Court. The nub of it is straightforward: the advocate should speak
clearly, stand straight at the lectern, and deliver an argument with a
controlled cadence. Long pauses while groping for the next point, or while
flipping through the record for a page reference, must be avoided. The correct
balance of volume is a matter that requires experimentation and the advice of
moot court observers. Counsel should not bellow at the Justices.17 Neither should he or she mutter or mumble during
oral argument. The impression to be conveyed through volume, tone, and gesture
is that of confidence, sincerity, and respect for the Court. This precludes
exaggerated gestures, pointing at the Justices, wandering from the lectern, and
other forms of distracting behavior.
toward the Court is, of course, an all important element. Justices should be
referred to as "Mr. Chief Justice," "Justice _________," or "your Honor."
Justices never should be referred to as "Judge"; still more clearly, no present
or past Justice ever should be referred to by last name only, without the
preceding title "Justice ________." In speaking to the Justices, counsel always
should display the kind of courtesy and respect used in communicating with a
senior partner or superior in the government. This means that even if, in the
heat of argument, the Court is not "unfailingly courteous" toward counsel,
counsel must be "unfailingly courteous" toward the Court.
This does not imply that counsel should be timorous or overawed. It
is never appropriate to "buckle under" just because an individual Justice seems
displeased with one's position. Colonel Wiener correctly characterized the
proper frame of mind, and the proper form of address, as that of "respectful
Questions from the Bench
Questions from the bench come in all forms and varieties. They
range from the difficult to the obvious, from the subtle to the whimsical. The
variety, rapidity, and unpredictability of questioning from the bench is perhaps
the distinguishing hallmark of oral argument before the nine Justices of the
Supreme Court. Counsel should not be unnerved or surprised by this outpouring of
questions. They call, however, for a snap judgment concerning the scope and
nature of the response. Speaking quite generally, questions from the bench fall
into the following categories, and call for the indicated types of replies:19
Questions that go to the heart of the case. As previously noted, some
Justices ask questions which go to the central issue in the case. The answer to
such a question may well determine the vote of the Justice asking the question
and also may affect the judgment of other Justices who share the same point of
view. Obviously, counsel should spend the most time with this category of
questions. These critical questions also can be used as a springboard for
development of related substantive points that counsel intends to cover during
Background questions. Many questions during argument simply require a
clarification of some record fact. Other questions manifest curiosity about
matters such as relevant geography, the identify of the judges below, or the
votes cast by the judges below. Counsel should give a quick and accurate answer
to such questions and move on without delay.
or debating questions. The Justices sometimes engage in extended debates
with counsel, which may or may not relate to central matters in the case. Of
course, counsel cannot cut off such debates, despite his belief that the matter
is tangential. Nonetheless, one must avoid getting bogged down too long on a
peripheral point. It is essential in this instance to give the best possible
answer, and find a tactful way to get back to the main points.
questions or observations. Counsel should enjoy the remark and then get back
to business. While it is not uncommon for the Court to offer a humorous
observation or question, attorneys ordinarily should refrain from introducing
humorous observations of their own. As often as not, attempts at humor fall
flat, and in all instances are a waste of counsel's limited argument
Irrelevant questions. It is not uncommon for counsel to hear questions
which he believes are related only remotely to the dispositive issues in the
case. In fact, however, the matter of relevance is personal and relative, and
one should never display irritation over questions that appear to be beside the
point. Counsel should give a polite answer and avoid any withering glance or
trace of sarcasm. He should give a brief response and then explain why the
present case raises a "somewhat different issue."
questions. Counsel should assume from the very beginning that some of the
Justices will present hostile or unfriendly questions, manifesting their
disagreement with his position. This is no occasion to be unnerved or
disappointed. Hostility frequently is a sign of frustration that the questioner
is in the minority. Counsel should remember that, while one or more Justices may
seem dissatisfied with his positions or answers, a majority of the Court may
well be on his side. In dealing with hostile questions, counsel should give a
polite but firm response and get back to his main
rule in dealing with all questions from the bench is to give a direct,
nonevasive response. Inexperienced attorneys frequently antagonize the Court by
evading questions — responding, for example, by saying "that presents a
different case," or "that really isn't what this case is about." The Court is
well aware that its questions call for analysis of a point different from the
point counsel is pressing. It nonetheless expects a direct answer.
must be concise and clear. Ordinarily, counsel will find it impossible to
include more than one or two short sentences in a response. The Justices will
interpose a different question if counsel drones on too long. It is
inappropriate, however, to be so anxious to get back to a planned speech that
questions receive a "back-of-the-hand" answer. If the Court has raised an
important point, and is willing to hear an extended response, counsel should not
hesitate to provide it.
source of annoyance is any attempt by counsel to postpone an answer to a
question from the bench. One cannot say "I have not yet come to that point in my
argument." The answer from the bench is likely to be: "You certainly have, and
it is time to answer." In some instances, it is advisable to interrupt the
course of the oral argument in order to give a full-blown response to the
Justice who has raised the question. This is particularly true if the point is
an important one. In other instances, it is possible to give a more concise
answer on the point, and then assure the Court that the answer will be
elaborated after laying the necessary foundation. If you promise to return to a
question, be very sure that you actually do so.
critically important to listen carefully to questions presented from the bench.
The object is not to blurt out a response to the question before it is finished,
in the manner of a high school quiz show. Counsel should make sure that he or
she understands exactly what the Court is asking. If a question is unclear, the
Justice will rephrase it. The Court is justifiably annoyed by attorneys who
waste argument time by responding to questions which the Court has not
One should not
expect, of course, to have an uninterrupted interlude for presentation of
arguments, or even for giving extended answers to questions. It is not uncommon
for the Justices to begin propounding questions shortly after counsel says "Mr.
Chief Justice, and may it please the court." This calls for flexibility. Counsel
cannot be so wedded to a prepared outline that he or she is unable to hop
quickly from question to question and to get back to affirmative points promptly
after dealing with questions.
The intensity of the questioning varies considerably from case to
case. Sometimes, counsel's position is so strong or so weak that questioning is
largely superfluous. In other instances, however, the argument is "hot." That
means that counsel gets nothing but questions for a thirty-minute period.20 Frequently, the questioning process will be
dominated by those Justices who disagree with the position being presented. It
is essential in this situation not to let the argument break down into a series
of unrelated responses. The argument should not become a cross-examination in
which counsel is forced to give a string of unfavorable concessions before the
red light goes on. He must attempt to retain control over the argument in at
least this sense: after answering the question presented by the Justice, counsel
should weave in the affirmative points that are necessary to win the case. In
other words, the advocate must have clearly in mind the main points that must be
presented no matter how intense the questioning becomes. And, with a little
dexterity, the questions from the Court can be used as stepping stones to make
these essential points. For example: "The answer to your Honor's question is
_____________. And in this connection, I would emphasize. . . ."
counsel will face a "cold" argument in which the Justices ask very few
questions. This possibility requires one to have a prepared presentation which
will extend for twenty to twenty-five minutes, which is interesting, and which
is known well enough to be presented without supporting dialogue. This is not to
say that all available time must be used. If the essential points can be
communicated in less time, the Justices will greatly appreciate counsel's
brevity. Beyond this, there is a substantial tactical advantage in conveying the
impression that the case is so simple and straightforward that there is no need
to dwell at length upon it. At the end of such a "cold" argument, counsel may
simply say: "Unless the Court has further questions, I will reserve the balance
of my time for rebuttal."
the bench may appear to be so cold that it is virtually ignoring counsel's
argument. Some Justices may talk among themselves during argument, read
materials before them, and even briefly leave the courtroom during the course of
the argument. Counsel should not be unnerved by this. Frequently, the Justices
are conferring about some aspect of the case before them. It is usually best
simply to forge ahead and try to make the oral presentation lively and
interesting. A short pause for emphasis also may bring attention back to the
questions, of course, are hostile or unfriendly. If an attorney is having a hard
time, a sympathetic Justice may intervene with a friendly question, or a
restatement of the attorney's position, which is intended to place his case in a
favorable light. Ordinarily, such helpful reformulations should be acknowledged
and accepted: "Justice _________, you have accurately summarized our central
contention . . . ." On occasion, however, a Justice may ask a question that is
not quite accurate in its friendly implication. The best response is to accept
the help but politely point out the mistake. For example: "I would agree with
your Honor's approach, but I think the main support in this situation comes from
. . . ." It is not advisable merely to accept the help if it rests on a mistaken
premise; the other Justices promptly will identify the fallacy and embarrass
counsel for failing to do so.
counsel will be so well prepared for argument that he or she will be able to
respond to all questions presented from the bench. However, one also must
consider the possibility that a question will be raised to which the answer is
unknown. If the Court asks a question concerning the record which counsel cannot
answer, it is permissible to turn briefly to an assistant for the information.
If the point is really an important one, counsel can offer promptly to file a
short supplemental memorandum. If this is not appropriate because the matter is
a minor one, it is permissible simply to say: "I regret that I cannot supply
that information. My recollection is, however, that the subject is discussed in
the testimony of ____________."
It is not
possible to dodge questions calling for a legal judgment. Legal, hypothetical,
or policy questions must be answered on the spot to the best of one's ability.
It is permissible to say "I have not considered that variant of our situation,"
but counsel then should proceed to indicate what factors are pertinent and give
his best analysis of the proper outcome.
One need not
worry about encountering the conventional law school question — "give me the
facts in the Drybones case." This never arises. Counsel should, however,
know enough about all of the cases cited in his brief to be able to deal with
questions about them and their relevance. Indeed, some attorneys have been
surprised by highly specific questions from the Court, such as: "You rely on the
Johnson case, but didn't the Court explicitly say in footnote 19 that it
was not reaching your issue?" The possibility of this kind of question requires
not only great care in drafting the brief, but also a clear recollection of
significant cited cases.
be no need to add that counsel never should bluff about cases he has not read.
If counsel receives a point-blank question about a case that he does not know,
he should admit it and state: "If your Honor would refresh me concerning the
holding in that case, I will try to answer the question directly." This should
not occur, of course, if the case is a relevant one. Thorough argument
preparation will encompass all such cases.
The Justices frequently ask attorneys to make concessions during
the course of oral argument. It is essential to use utmost care in responding to
such questions, since concessions made in open court can be used against counsel
in deciding the case on the merits.21 On the other
hand, one cannot run away from concessions that must be made. This is
particularly true of factual matters. For example, if a Justice inquires "isn't
it true that your client testified __________," an answer must be given in the
affirmative if that is the case. In dealing with a question calling for a
concession, it is essential to first answer the question, and only then
to explain why the conceded matter is not dispositive. If a Justice is disturbed
that you are not making a concession that you must make, simply say "I do
acknowledge your Honor's point. The record shows __________. That, however, is
not dispositive here because . . . ."
care must be exercised in dealing with questions calling for a concession of
law. For example, it is common for the Justices to ask questions such as:
"Wouldn't you agree that your position should be rejected if the facts were
_________." If you are willing to stand on the distinction between your case and
the variation described by the Justice, you should simply answer "yes." On the
other hand, if it is not crystal clear that the distinction is a dispositive
one, or if your case is not greatly different from the hypothetical case, it is
best not to concede the point at all. It is permissible to respond: "I wouldn't
concede that the variation would produce a different result. Your Honor has, of
course, described a far less favorable case for applying the principle we rely
on, but it still would control because . . . ."
Justices must anticipate the future consequences of their decisions in a wide
variety of cases arising throughout the nation, they are highly concerned with
the breadth of legal principles they announce and their potential application to
other situations. Counsel therefore must be ready for the question: "How far do
you carry that principle? Would you, for example, apply it in the following
instance . . . ?" Hypothetical questions such as this are a central feature of
oral argument in the Supreme Court, and they require substantial preparation and
analysis in advance. Counsel should bear in mind that every principle has a
breaking point. Stated otherwise, every principle meets a contrary principle at
some point. Counsel, therefore, must be wary of presenting arguments that sound
radical because principles are extended too far. In distinguishing a
hypothetical situation, it also is essential to remember that it is not
sufficient merely to say "that is a different case." The Justices know that.
They want to know what principle separates the two instances.
heat of debate on an important issue, counsel may find that one or more Justices
are especially persistent in questioning and appear unwilling to relent. This
may be the case when a Justice is making known his or her views in an emphatic
manner, and is determined to expose the weaknesses in counsel's arguments.
Often, another Justice will divert this colloquy by posing a different question
that permits counsel to shift back to a more fruitful line of argument. In the
absence of such relief, however, counsel must give his best answer firmly and
politely; he then should attempt to steer the argument back on course by weaving
in affirmative points. If the hostile Justice returns to the same point, counsel
may wish to say: "Justice ________, I regret that I cannot improve on the answer
I previously gave the Court on that point." Counsel never should express
exasperation with the Court for persistent examination. And if it is necessary
to disagree at the end of a colloquy, counsel should do so courteously: "With
great deference, your Honor, we see that case in a very different light. In our
view, . . . ."
generate goodwill not only by answering questions in a forthright and accurate
manner, but also by returning briefly to important questions asked of his
opponent who has provided wrong or inadequate information. For example: "Justice
_________ asked Mr. __________ whether __________. He answered __________. In
fact, however, the Joint Appendix, at page _______, discloses a quite different
answer on this important question."
Respondent's Argument, Rebuttal and Amicus Curiae
rules described above apply to the arguments of both petitioner and respondent.
However, the respondent is required to exercise even more flexibility than
petitioner. The same is true, of course, of the appellee, who addresses the
court after the appellant has concluded his argument. Counsel for respondent
should approach the lectern with the same materials — including argument
outline, briefs, and appendices. He also should have in mind the main points
that he wishes to make. Counsel should not use his argument time simply to
complain about mistakes that his opponent has made; he must make his own
affirmative case. In short, it is essential for lawyers on both the "topside"
and "bottomside" to give the Justices the intellectual and emotional basis for
ruling in favor of their clients.
respondent should not, however, proceed with the argument as if he or she was
seated in the courtroom during the preceding half hour. It is essential to
refocus the planned presentation to make it relate to what has happened during
the topside debate. If one is well prepared, there should not be many surprises.
It is a good practice to bring along a magic marker to annotate the argument
outline as counsel for petitioner speaks, noting the major points that will be
added in light of what petitioner's counsel and the Court have
important exchange between the Court and counsel for petitioner has taken place,
and if it goes to the heart of the case, counsel for respondent may wish to
begin with the substance of that colloquy and weave his whole argument into the
issues that thus have been raised. After making an affirmative point, it
frequently is helpful to turn to related questions previously asked by the Court
of petitioner's counsel and provide corrected responses. In this way, counsel
for respondent can make the affirmative points that are essential to victory and
also disarm the advocacy of his opponent.
rules for rebuttal are straightforward. Counsel for petitioner should, of
course, attempt to reserve enough time during the topside argument to permit an
adequate rebuttal. Ordinarily, no more than four or five minutes will be
required. But counsel should make every effort to reserve at least some
time for rebuttal. The existence of rebuttal time has a salutary restraining
effect on respondent's counsel, who realizes that any overstatement or
unsupported contention will be exposed at the end of the
The amount of
time reserved for rebuttal is not entirely under counsel's control. If the Court
propounds many questions at the end of the argument, rebuttal time may vanish.
If this appears to be occurring, counsel politely may remind the Court that he
wishes to reserve a moment or two for rebuttal. Ordinarily, the Court will honor
this request, or, in the alternative, give petitioner's counsel a minute of
rebuttal even if the red light has flashed on at the end of his
should be planned during the course of respondent's argument; it never should be
prepared in advance. No matter how much time is left over for rebuttal, counsel
should make only three or four important points. It is not appropriate to
compile a long list of your opponent's errors and then touch upon every one of
them during rebuttal.
be quite effective if respondent's counsel has made a statement that is directly
contradicted by the record or by some controlling authority. In either event,
counsel on rebuttal should be prepared to give the Court the dispositive
citation. When the red light goes on, counsel should thank the Court and sit
down. However, one may finish answering a question from the Court, and may
answer any new question presented by the Court, after the red light has flashed
be forewarned that the Court is visibly impatient with rebuttal. This means that
any rebuttal must be snappy and good. Indeed, it can be quite effective, after
an opponent has made an unimpressive argument, simply to stand up and say with
confidence: "Unless the Court has questions, we will waive
exception of the Solicitor General and his staff, few attorneys have occasion to
present oral argument as amicus curiae. Occasionally, representatives of state
governmental bodies, or other substantial organizations, will be permitted, on
motion, to present oral argument as amicus curiae. This, however, is the rare
appearing as amicus curiae ordinarily will have only ten or fifteen minutes, as
prescribed in the Court's order permitting amicus participation. This rigid time
restriction calls for special condensation and dexterity. There is no occasion
to spend any time on the facts. Counsel should give a quick introduction
summarizing his position and the ground to be covered during the allotted time.
Then he should embark immediately upon the two or three main points that must be
addressed. One must be skillful at weaving main points into answers to
questions, and steering the argument back into meaningful channels, when only
ten or fifteen minutes are available. If, of course, the Court keeps counsel on
his or her feet after expiration of the allotted time with additional questions,
he or she should not hesitate to remain at the lectern. However, if the red
light flashes on and there are no additional questions, counsel should thank the
Court and promptly sit down. Unlike some courts of appeals, the Supreme Court
does not permit any attorney to "wind up" his argument after the red light has
It is often observed that, although it is difficult to win a
case through oral argument, it is easy to lose the case during argument.
Although, personally, I am more optimistic about the positive potential of the
argument process, I have not the slightest doubt that mistakes during oral
argument have the potential seriously to undermine counsel's position on the
merits.22 The potential pitfalls and missteps
during argument are so numerous that no catalogue could suffice. However, some
mistakes occur with such frequency that it is appropriate to set them forth as
errors have the potential to affect adversely counsel's affirmative
— Leading off
the argument with a dubious or unnecessarily provocative contention that
generates friction at the outset.
inflexibly to a prepared speech when the Justices express interest in other
hyperbole, overstatement, or exaggeration in describing record facts.
emotional rhetoric, high-flown oratory, or irrelevant lines of argument intended
to excite emotional responses.
— Bellowing at
the Justices in a stentorian tone of voice, or, conversely, mumbling and
long and boring delays while groping for page references, cases, or
around the lectern, slouching over the lectern, rocking back and forth before
the lectern, using awkward gesticulations, pointing at the Justices, jiggling
keys or delaying proceedings while drinking water at the podium.
— Using dry,
monotonous speech, without any variation in pitch, pace, or volume.
lack of respect toward the bench, including flippancy or
— Relying on
lower court authorities, dissenting opinions, or law review articles.
— Failing to
come to grips with the plain language of statutory or constitutional
— Reading from
the text of an oral argument script, or reading at length from legislative
history, opinions, statutes, regulations, or the trial record.
factual points which have been resolved adversely by both courts
— Arguing about the correctness of the lower court's disposition of
an issue of state law.23
— Referring to
matters outside the record (such as newspaper articles) in presenting
— Using distracting physical exhibits.24
Mischaracterizing the Court's institutional role. For example, arguing in a
constitutional case that "this Court requires . . ." as opposed to arguing that
"the Constitution, as construed by this Court, requires . . . ."
— Arguing to a
particular Justice that "your Honor has held in the Jones case that . . .
." It is the Court that has so held, in an opinion written by a
to talk after the red light has flashed on without any invitation for further
argument in the form of additional questions.
most harmful errors of all are made by counsel while responding to questions.
Some of these mistakes are matters of substance; others are matters of style.
All of them have the potential to throw a bath of cold water on counsel's
presentation. These common mistakes include:
— Failing to
listen carefully to a question from the bench, and answering some other question
that the Justice has not asked.
questions by stating "that's a different case . . ." or by failing to give a
direct, simple, and comprehensible answer.
— Refusing to
give a "yes" or "no" answer when the Justice so requests and when it is possible
to do so.
to postpone answers to questions, or promising to cover matters that are never
covered adequately later.
long-winded, multiple-paragraph answers to straightforward questions, or relying
on complex and incomprehensible factual descriptions in responding to
— Failing to
accept or acknowledge helpful observations or reformulations of argument
suggested by a Justice.
about knowledge of a case, statute, or trial transcript.
— Indulging in
repeated conferences with lawyers at counsel table prior to answering
fearful or timorous responses to overbearing questions, or displaying
disappointment when questioning is hostile.
to answer questions by propounding other questions back to the Court.
to respond to a Justice by name, but using the wrong name.
— Referring to
a Justice as "judge" or referring to present or past Justices only by last names
and without the proper title. It is essential to say "Mr. Chief Justice,"
"Justice ________," or "Your Honor. Bear in mind that Justice O'Connor does not
wish to be called "Madam Justice."
suggestion may be in order. Attorneys arguing for the first time in the Supreme
Court should not worry about nervousness. Even experienced lawyers are nervous
before their arguments. Nervousness melts away quickly, however, once the
argument begins. Prior to argument, it is helpful to think positively and
gratefully about the experience: you are appearing before nine people who want
you to do a good job, and if you are determined to do so, you certainly will.
Remember, too, that thorough preparation is the best cure for buck fever. Once
you have mastered your case, you will know it far better than the Justices and
will be able to guide them to a correct understanding of it.
In the end, it may be the case that no list of abstract suggestions
can provide much help to attorneys preparing for a first argument in the Supreme
Court. Perhaps it is impossible to improve on the straightforward advice of
Judge Robert Bork: "Stand up straight; speak clearly; and try to sound
intelligent."25 If further embroidery is necessary,
I would only reiterate the suggestion that counsel experience firsthand the
atmosphere of the courtroom prior to oral argument — an atmosphere in which
severe time constraints and rough-and-tumble questioning are the order of the
© 1999 Mayer, Brown & Platt. This Mayer, Brown & Platt article provides
information and comments on legal issues and developments of interest to our
clients and friends. The foregoing is not a comprehensive treatment of the
subject matter covered and is not intended to provide legal advice. Readers
should seek specific legal advice before taking any action with respect to the
matters discussed herein.]
* Mr. Shapiro, a partner at Mayer, Brown & Platt
specializing in appellate litigation, formerly served as Deputy Solicitor
General of the United States. B.A., 1968, Yale University; J.D., 1971, Yale Law
School. The author is indebted to Judge Daniel M. Friedman, Robert L. Stern,
Andrew L. Frey, Kenneth S. Geller, Frank H. Easterbrook, William C. Bryson, and
Daniel Harris for their helpful suggestions on the subject of this
- Among the most valuable of these
discussions are: R. STERN APPELLATE PRACTICE IN THE UNITED STATES ch. 7 (1981);
R. STERN & E. GRESSMAN, SUPREME COURT PRACTICE ch. 14 (1978); F. WIENER,
BRIEFING & ARGUING FEDERAL APPEALS ch. 7 (1967); Prettyman, Supreme Court
Advocacy: Random Thoughts in a Day of Time Restrictions, 4 LITIGATION 16
(1978); Griswold, Appellate Advocacy, With Particular Reference to the United
States Supreme Court, 26 RECORD OF THE BAR OF THE CITY OF NEW YORK 342
(1971); Jackson, Advocacy Before the United States Supreme Court, 37
A.B.A. J. 801 (1951); Davis, The Argument of an Appeal, 26 A.B.A. J.
(1940). Return to Article
- Jackson, supra note 1, at 864.
Return to Article
- For a description of the Solicitor
General's Office, see McCree, The Solicitor General and His Client, 59
WASH. U.L.Q. 337 (1981). Return to Article
- This subject is comprehensively
treated in the authorities noted previously in this article. See supra
note 1. Return to Article
- 103 S. Ct. 2317 (1983). Return to Article
- Address by Hon. William H. Rehnquist
on Oral Argument in the Supreme Court (Oct. 18, 1983). Return to
- SUP. CT. R. 38 (1982). Return to Article.
- Id. Return to
- Remarks by Kenneth S. Geller,
Conference on Supreme Court Advocacy (Oct. 18, 1983). Return to
- 425 U.S. 185, 197. (1976) Return to Article
- See, e.g., TVA v. Hill, 437
U.S. 153, 172-73, 194-95 (1978). Return to Article
- See SUP. CT. R. 38, supra note
7. Return to Article
- R. STERN, supra note 1, at
390-91. Return to Article
- The height of the lectern is
adjustable to accommodate both the near-sighted and far-sighted practitioner.
The necessary adjustment should be made before counsel begins the oral argument.
Return to Article
- Occasionally, a new statute or
regulation may come to counsel's attention shortly before the argument. The
Supreme Court's rules permit the filing of a supplemental memorandum addressed
to such matters. However, if the matter is important and must be referred to
during argument, the attorney may lodge ten copies of the statute or regulation
with the Clerk with a request that each Justice receive a copy, and should
simultaneously make service upon opposing counsel. New matters of significance
should not be raised for the first time during oral argument. Return to Article
- In rare cases, the Chief Justice may
grant leave to file a concise supplemental memorandum addressed to the point in
question. Return to Article
- The close proximity of the bench to
the lectern, and the sensitive voice amplification equipment used in the
courtroom, make loud declamation unbearable to the Justices and to observers in
the courtroom. Return to Article
- F. WEINER, supra note 1, at
299. Return to Article
- The range of questions asked by the
Court is ably discussed in Prettyman, Supreme Court Advocacy: Random Thoughts
in a Day of Time Restrictions, 4 LITIGATION 16 (Winter 1978). For a brief
description of the questioning style of each Justice, see Mann, Prepping for
the Justices, 4 AMER. L. 97 (Nov. 1982). Return to
- Justice White recently observed that
oral argument is an occasion for the Justices "to clarify their own thinking and
perhaps that of their colleagues. Consequently, we treat lawyers as a resource
rather than as orators who should be heard out according to their own desires."
White, The Work of the Supreme Court: A Nuts and Bolts Description, 54
N.Y. ST. B.J. 346, 383 (1982). Return to Article
- On rare occasions, counsel may
realize, after completion of the argument, that he or she has made an
improvident concession on a point of major significance. In such an instance, it
may be appropriate to send a concise letter to the Justices through the Clerk,
with 10 extra copies, which refers to the question and clarifies the response in
a suitable manner. Service upon opposing counsel also should be made. Needless
to say, there is no assurance that the Justices will honor this kind of
retraction. See generally Rose v. Mitchell, 443 U.S. 545, 573-74 (1979);
Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 170 (1972). Return to
- Justice Rehnquist recently has
Oral advocacy is probably more important in the
Supreme Court of the United States than in most other appellate courts. . . .
[T]he time set for oral argument is the only opportunity that you will have to
confront face to face the nine Members of the Court who will ponder and decide
your case. The opportunity to convince them of the merits of your position is at
its high point.
W. Rehnquist,Oral Advocacy: A Disappering Art, 32-33,
Brainerd Currie Lecture, Mercer University School of Law (Oct. 20, 1983). Return to Article
- In almost every instance, the Supreme
Court will treat a state court's construction of state law as final. In most
instances, the Court likewise will defer to the construction placed on local law
by the lower federal courts, who presumably are more familiar with local law. Return to Article
- This almost always is a bad idea.
Substantial amounts of time are wasted while physical evidence is examined,
passed around, or stared at in the courtroom. All too frequently, the use of
exhibits is perceived as a stunt. If some document must be specially examined —
such as a newly promulgated statute or regulation — counsel should notify the
Clerk well in advance and ask him to distribute copies to all of the Justices
prior to argument. If counsel insists on using a large chart or some similar
form of physical evidence during the argument, he should notify the Clerk at
least two weeks in advance and obtain the Court's permission. Return to Article
- Remarks of Hon. Robert H. Bork,
Conference on Supreme Court Advocacy (Oct. 18, 1983). Return to