An Interview with Steve Shapiro
by Jeffrey Cole
(This interview originally appeared in the ABA's journal Litigation, Vol. 23, No. 2, Winter 1997, and is reprinted with permission.)
Justice Holmes once said that he tried not to listen
to John W. Davis — the preeminent appellate lawyer of his time — so that he
would not be overly influenced by the "beauty" of Davis' arguments. Yet, what
lawyer, even if given a choice, would be Davis rather than Darrow?
Steve Shapiro would.
For 25 years, first as Deputy Solicitor General of
the United States and later as founder of Mayer, Brown & Platt's 30-lawyer
appellate group, the largest in the country, Mr. Shapiro has devoted himself to
appellate practice in the United States Supreme Court and the federal and state
appellate courts. Mr. Shapiro has argued 20 cases before the Supreme Court,
briefed hundreds more in that Court and in the federal and state courts of
appeals across the country. He is also a co-author of the leading treatise on
Supreme Court practice, Stern, Gressman, Shapiro & Geller, Supreme Court
Practice. His group has argued over 250 cases in the United States Supreme
In this interview, Mr. Shapiro talks about effective
brief-writing and oral argument, his group's recent success in persuading the
Supreme Court to announce constitutional standards in punitive damage cases, and
future developments in appellate practice. He also reflects on the Supreme Court
confirmation process and such notable personalities as Clark Clifford, Robert
Bork, Clarence Thomas, Frank Easterbrook, Rex Lee, and others.
Mr. Shapiro's insights prove not only that theory
controls the future but that it has profound present consequences. His
reflections are invaluable for lawyers looking for techniques to maximize the
chances of success on appeal, as well as for appellate judges, whose functions
are threatened by ever-increasing caseloads.
Q. After graduation from Yale Law School and a
clerkship on the Ninth Circuit, you became a partner at Mayer, Brown & Platt
in Chicago. Having achieved what, for many, would be the pinnacle of success,
you left the firm.
A.Right. I went to the Solicitor General's office. I
wanted to learn more about appellate litigation and argue significant cases in
the Supreme Court. It is difficult for a young partner in a law firm to have
Q.So you became an Assistant to the Solicitor General
and later were promoted to the position of Deputy Solicitor General of the
Q.What makes the Solicitor General's office so
A.The Solicitor General's office has about 20 lawyers
who are responsible for the briefing and argument in all cases in the United
States Supreme Court in which the United States is either a party or an
amicus curiae. This includes petitions for certiorari and briefs
in opposition. The 20 lawyers process over 2,000 cases each year. This
jurisdiction reaches all kinds of cases coming up from the various divisions
within the Department of Justice and all administrative agencies in the federal
bureaucracy. The office also supervises government appeals from adverse
decisions throughout the country. The continual involvement in Supreme Court
cases is unique in law practice. Immersion in the work of the Court gives these
lawyers an understanding of what the Court thinks and what the Court requires,
which is a tremendous litigation resource for the federal
Q.The relationship between the Supreme Court and the
Solicitor General's office is quite different from that which exists between
other courts and the lawyers who appear only occasionally, isn't
A.That's right. These lawyers realize that the office
has a rich, long-term relationship with the Court. Preserving the continuum of
credibility is important. Other lawyers who appear before the Court are of
course concerned with the same thing, but nobody appears in case after case the
way the SG's office does and it makes the SG's office something of an extension
of the Court itself.
Q.The SG's staff even dresses differently for
arguments, don't they?
A.Yes, the lawyers in the Solicitor General's office
wear 19th-century garb— a cut-away jacket and striped pants, morning coat, and a
vest. As the Chief Justice once reminded one of our lawyers, traditional attire
does not include a button-down collar. The tie itself is gray and black striped,
very somber and formal.
Q.The SG's office seems to be a kind of training
ground for federal circuit court judges.
A.Yes, Dick Posner, Charles Fahy, Thurgood Marshall,
Frank Easterbrook, Ray Randolph, Bill Bryson, Dan Friedman, Sam Alito, Oscar
Davis, and Bob Bork became circuit judges, and a number of others have gone on
to academic appointments.
Q.Who was the Solicitor General at the time you
A.Wade McCree, who had been a Sixth Circuit judge
until his appointment by Jimmy Carter.
A.Wade McCree was a wonderful gentleman, who was well
respected by all his "clients" throughout the federal government, which were the
executive branch and the various agencies that brought their cases to the
Solicitor General's office. He had extraordinarily good judgment, a wonderful
personal touch, and was really a joy to work for and work with. Everyone trusted
his judgment completely. If he thought a matter should be handled in a
particular way in the Supreme Court that is the way it was handled. If he felt a
case was not "certworthy" that judgment was accepted. He had a stately literary
style, reflected both in his writing and in his arguments.
Q.His personality differed from that of other
Solicitors General under whom you worked, didn't it?
A.Yes. I also worked under Rex Lee in the Reagan
Administration and Rex was a much younger man. He had been a law school dean and
never served as a judge. He was a more spontaneous personality, bubbling over
with humor. Everybody had a warm personal relationship with Rex Lee. Rex himself
had been a Supreme Court clerk, which gave him a good understanding of the
Court. Rex had a less formal argument style in court, and it was generally
salted with humor. I think the Court appreciated that.
Q.You were the lawyer for the United States in the
major commercial cases that were argued during your five years in the SG's
A.Yes, I was the Deputy Solicitor General in charge
of most of the commercial cases, including antitrust, securities, commodities,
communications, banking, and transportation.
Q.The cases in which you were involved, especially
under the federal securities laws, are among the most well known in the
A.The securities cases included United States
v. Naftlin, Chiarella v. United States, Rubin v. United States,
Parklane Hosiery v. Shore, MITE v. Edgar, and Dirks v.
SEC. There are a number of others, as well as significant cases involving
the power of the Federal Reserve Board, Board of Governors of the Federal
Reserve System v. First Lincolnwood Corp., the constitutionality of
the Federal Election Campaign Act, NBC, ABC, and CBS v.
FEC, and a number of important antitrust, banking, and even some criminal
Q.There's a certain irony in this since your family
background was decidedly anti-commercial.
A.That's a fair statement. My grandfather was a labor
union organizer and a politician in Chicago at the turn of the century, an
advocate for the working man. My father was a labor union lawyer himself, and I
find myself representing the employer in most of our labor cases today. When I
worked in the government I was the advocate for the NLRB in a number of
Q.How many cases have you argued in the Supreme
A.I have argued 20 cases in the Supreme Court. And,
of course, I have filed merits briefs, certiorari petitions, and briefs in
opposition in hundreds of other cases in the Supreme Court. Our group at Mayer
Brown has argued collectively 250 cases in the Supreme Court.
Q.When you left the SG's office and returned to
Mayer, Brown & Platt, you conceived the idea of developing an appellate
group modeled after the Solicitor General's office, didn't you?
A.Yes. It seemed to me that the Solicitor General's
office had a unique advantage because of its familiarity with the Supreme Court
and its close monitoring of developments in the courts of appeals. There was
nothing analogous to that in the private sector; no other office was equally
plugged into the appellate system. When I left the Solicitor General's office, I
found that most of the firms felt that their litigators could handle a case in
any court, and they prided themselves on not having a specialized appellate
Q.That was true even in the major firms across the
A.Yes. The few that did have an appellate specialty
had one individual who was experienced in appellate work and who was assisted by
a number of young, inexperienced associates. There was not constellation of
senior experienced appellate lawyers. The thought occurred to me that the model
of the SG's office could be reproduced with substantial advantages for private
Forming an Appellate
A.I recommended to my firm the hiring of senior
people from the SG's office who were, in my opinion, the best of the brief
writers and oral advocates — these people included Andy Frey, Ken Geller, Paul
Bator, Kay Oberly and Andy Pincus. And since that time we have hired many
Q.How was that proposal received?
A.The firm was receptive. They thought this was
useful innovation, although they were uncertain about the amount of client
demand that would exist for a large group. There was some thought that we should
start small and gradually increase the staff, but we decided to take exceptional
talent when the talent became available.
Q.You were head of that department?
A.I headed it, organized it and recruited the
lawyers. Today we view ourselves as a true partnership with many senior members
who are their own bosses. We have coordinators in Washington, New York, and
Q.How large is your appellate
A.We have 30 people who work on appellate projects.
We also take on major trial court briefs that raise issues comparable to
appellate cases, and the group also spends time on legislative advocacy where
the same kind of analysis is called for, sophisticated written analysis and oral
presentation to legislative committees. We expanded on the Solicitor General's
model in several respects. First, our group is larger than the SG's office. We
have hired a dozen people from the Solicitor General's office. We also have a
group of former Supreme Court clerks and a number of law school professors who
work with us as "of counsel" members in particular areas such as constitutional
law, regulated industries, federal court procedure, intellectual property, and
so forth. Our senior appellate lawyers all have substantive specialties in
particular fields of law.
Q.The idea of bringing professors into the group was
your idea as well?
A.Yes. Originally there was some question whether
professors would find the law firm environment congenial. We began with Paul
Bator of Harvard who was a tremendous success. Later we worked with Arthur
Miller, Peter Huber, Michael McConnell, John Wiley at UCLA, and Cole Durham at
Brigham Young, as well as a number of other academics.
Q.In your system brief writing appears to be a
A.The brief writing is a collaborative effort. Most
clients expect our senior lawyers to roll up their sleeves and dig into the
brief, not just advise young lawyers, direct research, and fine-tune the
Q.You have represented some of the most powerful
commercial interests in this country and even the world, haven't
A.Our clients include large corporations, but the
list also includes smaller companies, government units, individuals, and a
number of charitable institutions including churches that have constitutional
questions. One very interesting case that is currently pending involves The
First Church of Christ, Scientist, which is the Mother Church of the Christian
Science denomination in Boston.
Q.What are the issues in that case?
A.The case, which is now before the Supreme Judicial
Court of Massachusetts, involves the jurisdiction of civil courts to intervene
in internal church disputes. The particular dispute involves the church's
expenditure of money to expand its communications efforts throughout the world,
including television broadcasting and enhanced publications. And it also is a
dispute about the authority of the directors of the church to interpret the
church's own internal constitution. The two plaintiffs, who are members of the
church, contended that the court had authority to determine the accuracy of the
directors' interpretation of the Church's constitution and the wisdom of these
expenditures. The question before the Court is whether such judicial
intervention is consistent with the First Amendment and whether the plaintiffs
have standing to bring the case.
Q.You were actually asked to represent the United
States Court of Appeals for the Seventh Circuit in one case, weren't
A.Yes. This may surprise you, but in attorney
discipline cases lawyers subject to discipline sometimes petition the Supreme
Court for review and they name as the respondent not their opponent in the court
below, but the court of appeals itself. A lawyer who was sanctioned by the
Seventh Circuit did just that and the Seventh Circuit asked us to file a brief
in opposition to the certiorari petition.
A.Successfully, although there were three Justices
who would have heard the case. So it was viewed in Washington as a close
Q.And you've been the lawyer for the government of
Japan, haven't you?
A.Yes. In the Matsushita case, a major
antitrust case in the 1980s, I represented the government of Japan. They
submitted an amicus brief dealing with act of state issues and with the
application of the antitrust laws to international trade.
Q.Another one of the unusual cases, outside the
normal course of your representations, was that of Larry Flynt, the publisher of
A.He was involved in a libel suit with a woman named
Keeton. She allowed the statute of limitations to expire everywhere but in one
state that was far removed from the residence of either of the parties. The
question was whether that remote court could take jurisdiction over the issue
consistent with the due process clause. We had filed an amicus curiae brief in
the case on behalf of a trade association that was interested in the
jurisdictional point and in a companion case as well. Two days before the
argument, Mr. Flynt had a disagreement with his appellate counsel, and the Court
was without an advocate to defend the judgment below. So they called on me
shortly before the argument.
Q.Who actually called you?
A.The Clerk's office said that the Chief Justice had
made this request. Forty-eight hours later, I argued the case before the Supreme
Q.What was the result of the case?
A.Our position was rejected in the Flynt case,
but it was accepted in the companion case, so that the two cases made some
important law about jurisdiction over disputes with only limited connections to
Q.How much time is devoted to argument preparation in
a major case?
A.I devote a large amount of time to oral argument
preparation. In a big case with a large record and voluminous briefing, I have
spent as much as a month in argument preparation.
Q.What do you do that takes so much
A.I have always made a point of reading the entire
record, which includes the entire transcript, the exhibits, and the pleadings.
In addition, the briefs will cite multitudes of opinions, which you have to be
prepared to discuss during argument. On top of this, we go through moot court
sessions in which we try to anticipate every question the court might
Q.Could you describe the moot court
A.It varies from case to case, but in a large matter
where a lot is at stake, we will have a moot court group that includes not only
the lawyers who have worked on the case and the clients, but outside attorneys
who are expert in the area.
Q.How do they help prepare you?
A.Initially, I present the argument without
interruption to get reactions to the substantive points. Then we run throughout
the argument with the clock running — 30 minutes, 20 minutes or 15 minutes,
depending on the time frame of the real argument, with questions. We see how
much of the argument can be delivered while responding to questions. The final
session has no time limitations, and we take up every question that anyone can
think of. By the way, the Chief Justice just gave a speech about oral argument
technique, and he made the point that the art of oral argument is spontaneity,
but he added that meaningful spontaneity depends on complete familiarity with
the law and the record. Effective spontaneity grows out of the kind of
understanding that you get through the moot court process.
Q.This can be a very costly undertaking, can't
A.Sometimes it is. But if the matter before the
Supreme Court or the court of appeals is sufficiently significant, the client
demands that kind of preparation.
Q.Do all the members of your group devote this much
time to argument preparation?
A.The lawyers all have different styles. Some of them
are quicker studies than others. I like to read and reread the major cases and
the briefs. Others are able to do that more quickly, so it varies greatly from
person to person.
Q.Judge Easterbrook was legendary for the speed at
which he worked, wasn't he?
A.Frank Easterbrook was the quickest brief writer I
ever knew. He could write a brief even in the most complex case in a day or
two—often without leaving his desk because he remembered the major precedents,
had a photographic memory. Ray Randolph, who is now a judge of the D.C. Circuit
Court of Appeals, was also very fast. Easterbrook was also able to prepare for
oral argument very quickly. This is in the tradition of Robert Jackson, the
Solicitor General many years before my time, who was able to prepare a major
case in just two or three days.
Q.What are the ingredients of an effective appellate
A.I think the most important ingredient is thorough
preparation so that all the information about the case and legal authorities is
at your fingertips. After all, your main purpose for participating in the
argument is to answer the court's questions. The second ingredient is
condensation and simplification of the case so that the few critical
considerations that are needed to decide the case correctly can be presented in
a few minutes, if the questioning is intensive. The third ingredient is
flexibility in responding to the court's questions, giving the court a full
answer, but then using the question as a stepping stone to return to the
critical points in the case. One problem I see frequently in argument is that
questions can cause counsel to lose any sense of direction. Effective argument
means that you answer the court's questions but use the answer as a transition
to return to the winning ideas.
Q.Is it ever appropriate in responding to a question
to say. "I'd like to answer that later" or "I'm going to get to that later in my
A.That is a mistake because it irritates the court.
You don't have control over what you are going to be able to say later, so you
are never in a position to keep that kind of a promise. Sometimes you can get
away with giving a brief response and then indicate that you would like to
enlarge on that point later in the course of the argument with a little more
background and sometimes the judge will let you do that. But the best policy is
to give at least a concise answer immediately.
Q.Have you ever seen a case where as a consequence of
questions a lawyer does not have a chance to make any meaningful argument, and
thus asks the court for additional time?
A.I see that all the time, and depending on the
court, you may get a little extra time. In the U.S. Supreme Court there is no
mercy. If your red light goes on, that is the end unless a Justice is asking a
question, then you can answer the question fully— until the Chief Justice stops
Q.In the courts of appeals?
A.In the courts of appeals, occasionally the
presiding judge will enlarge your time and permit you to continue to argue
because of the volume of questions. But when the presiding judge says "thank
you, we understand your position," it is time to stop. I have noticed more
flexibility in state appellate courts.
Q.You have a very favorable opinion, don't you, of
the work product and the quality of the judging in the state
A.I have been very impressed with the level of
preparation in the state appellate courts, the quality of the questioning and
the good common sense that these judges bring to these cases and also their
courtesy to counsel. Their opinions by and large tend to be somewhat more
concise but in my book that is a virtue. So, I am a big fan of the state
Q.What are the elements of a winning
A.The virtues of a good brief, in my opinion, are
clarity, selectivity, and simplicity of writing, including the headings of the
arguments. I remember Frank Easterbrook's words of advice to me, which I
continue to use and I recommend to others: use short sentences, use active
verbs, use short paragraphs and avoid footnotes. Briefs that are written in this
fashion are clear, simple and direct, and are not soporific because the verbs
are active and the words carefully chosen.
Q.One of Cardozo's great attributes as a judge, it
was said, was that he could present facts so persuasively that the legal
conclusions seemed inevitable. How important is the Statement of Facts in a
A.Except for those cases that turn on an abstract
point of law, the statement of facts is generally the most important and
challenging part of a brief. The facts are the one thing that the appellate
judges know nothing about. It is very important that the factual statement be
forceful, but that it not be a one-sided or argumentative presentation. I think
fact statements of that kind turn off appellate judges and undermine the
credibility of the brief. The same point applies to discussion of legal
Q.What makes it so challenging?
A.It is challenging because it has to be short enough
to be read and understood even if the transcript fills 10 or 20 boxes. The whole
matter has to appear in a sympathetic light as a result of your factual
statement even though you don't hide from or disregard the adverse facts. It is
true that the court should have a good sense about how to decide the case after
finishing the statement of facts and yet the statement of facts can't be
argumentative or the court will lose confidence in the presentation. It is a
difficult line to walk.
Q.It is your view, isn't it, that a summary of
argument section, regardless of how it's captioned, is very important in all
A.It is and, of course, it is required by the federal
rules of appellate procedure. Most of the states require a summary of argument
too. It serves several purposes. If a case is complicated and there is a lengthy
statement of facts and a complex set of arguments to follow, it is very hard to
understand the significance of particular parts of the argument unless you see
the big picture first. It is much easier to follow the details of the argument
if you have an overview of where the argument is headed. Also, some judges may
need that summary of argument as a refresher before the oral
Q.One sees in briefs statements about how meritless
and worthless the other side's argument is. Does that serve any useful
A.Invective directed at the opponent and epithets
characterizing the arguments as frivolous are largely wasted. I think it also is
a signal to the judges that you are in trouble. So I think it is
counter-productive. There are occasions when the other side has egregiously
miscited something and you want the court to understand that it should feel
displeasure over this transgression, but if the rhetoric is overdone it is
Q.Does the oral argument still play an important role
in appellate practice?
A.I think it is important and I say that because the
Justices of the Supreme Court say so, and the appellate judges say so. It is all
the more important given the huge caseloads today. There is a need to sort out
what is really important and get quick answers to questions when the judges have
only limited time for examining records and looking at authorities. So as there
is more and more work and the amount of time for argument shrinks, it becomes
increasingly important that the lawyer be there to guide the court to the most
important considerations and answer all its questions.
Q.How do you capture a court's attention in a short
A.The exercise is to reduce the case to its bare
essentials and to pick out the one or two points that the case really turns on.
With most courts being as well prepared as they are today, there is no need in a
ten-minute argument to start describing the facts and the procedural posture of
the case. The court expects you to turn immediately to the central
consideration. And of course you need to answer the court's questions flexibly,
give them an accurate answer but return to the important affirmative points in
the course of answering those questions so that your ten minutes do not
disappear without any opportunity to explain the reason why you should
Q.How do you deal with the obstructionist judge— the
judge who uses oral argument as a vehicle for his or her own amusement or to
argue a point through you?
A.I think you have to recognize that that is a normal
part of the process. And my attitude has always been to look at that as an
opportunity. If you can explain to the skeptical judge why the apparent defect
is not really a defect you may win over that judge and you will certainly
strengthen the hand of those who are on your side.
Q.Do you believe oral argument can actually change
A.I do. Justice Scalia has made the comment that he
will ask one or two questions that are critical to his thinking about the case,
and if you satisfy him on those questions, you will have his vote. I had that
experience in an antitrust case where he seemed very hostile to our position at
the outset and then he asked his pivotal question. We gave the answer that he
ultimately accepted. He ended up writing the opinion for the 5-4 majority in our
Q.This is also an example of the worth of thorough
preparation for oral argument, is it not?
A.That was a case where we had spent literally a
month on argument preparation involving dozens of lawyers. We thought we had
covered most of the questions that could come up. But we decided to ask one more
lawyer in our group to look at the case and see if he could raise any new and
significant question. He read the briefs, and he posed the very question asked
by Justice Scalia, and it turned out to be the question on which the whole case
Q.Has appellate practice changed in the time since
you were a young lawyer?
A.There has been a lot of change in the 25 years that
I have been practicing in this field. When I first began appearing in the
Supreme Court in the ‘70s, there was no limit on the size of briefs, and lawyers
in a big case might submit 200-page briefs. Today, briefs in the Supreme Court
are limited to 50 pages. You are lucky to get 50 pages in the appellate courts.
Some of the circuits have limited the pages to 35. Oral arguments then were a
half hour per side; arguments had been one hour per side in the
Q.Before then, arguments were even longer, weren't
A.If you go back to the 19th century, oral argument
in the Supreme Court was unlimited and some arguments went on for days.
Nowadays, of course, in the appellate courts arguments may be limited to 10
minutes or 15 minutes per side. Even in the largest cases, you have these
constraints on time and pages and that reflects the burgeoning dockets. All of
this puts a tremendous premium on condensation, simplification, getting to the
heart of the case, being able to communicate what is really telling and critical
in a few words, and being able to answer questions very
Q.Given the page constraints imposed on briefs is
there a role for literary style?
A.I think that good style is more important than ever
simply because the judges and clerks have so much to read. If you want to be
noticed, the brief has to be elegantly written. It has to be interesting. There
can't be anything boring about it. So I think that good writing style, just like
oral argument technique, is more important then ever.
Q.So when you talk about simplicity, you are not
talking about a lack of style and art and elegance. You are simply talking about
A.Yes, that's the idea. Simple Ciceronian writing
that is clean and clear and leaves out unnecessary verbiage. There is certainly
room for good metaphors, for references that are colorful, and epigrams that
convey important truths. On top of this I think that as the briefs get shorter,
it is all the more important to convey to the reader the reason "why" your side
should prevail. Recitations of case law without explanation why a particular
result is consistent with statutory purpose, consistent with the needs of the
judicial system, and consistent with the needs of society is going to be a dry
and unimpressive presentation. So that dimension of the brief, even though the
brief is getting shorter and shorter, is critical to making it interesting and
persuasive. My main criticism of briefs today is that there is insufficient
attention to that dimension. Justice Breyer made the comment recently that if he
reaches a result through application of legal reasoning that is not good for
society, that is an indication to him that he needs to start over again and
rethink the matter. And he is a smart enough man to change the result if it is
Q.Despite your work on appellate projects, you have
managed to save time for academic work, haven't you?
A.Yes. The biggest project is our Supreme Court
practice treatise which was republished in 1993. This is Stern, Gressman,
Shapiro and Geller, Supreme Court Practice. It is a description of the
procedural and jurisdictional rules, and the techniques necessary to bring a
case to the Supreme Court, to brief it, and to argue it. We also have a
supplement that comes out when there are new rules or amendments between
editions of the book and that is a time-consuming task.
Q.We've talked about briefs and oral argument. Let's
talk about preparation of a certiorari petition.
A.The first thing to do is to get a sample of a good
certiorari petition. Sample petitions are appended to our treatise, so
that is one source. The second thing you should do is to look at the Supreme
Court's rules and our treatise discussion of the content of the
certiorari petition. The Court receives more than 5,000 certiorari
petitions every year and it hears less than a hundred cases in a year, so you
have to persuade the Court that your case is one of those few that really
demands a national binding decision and that the time is ripe to hear this
case—that it is truly "certworthy" under the Supreme Court's own criteria. The
Court usually looks for cases in which there is a pervasive conflict among the
circuits that has percolated, with differences of opinion illuminating the
issues, so that the matter is really ripe for Supreme Court review. Conflicts
with past Supreme Court opinions are rare but they too are an occasion for a
grant of certiorari.
Q.Is there any one criterion that seems to engage the
A.Conflict among the circuits is important but the
general public importance of the issue is also key. A conflict can be relatively
minor in practical significance, but sometimes conflicts among the circuits
create great practical problems. For example, a business that has a 50-state
operation needs to know what the law is for the business nationwide. Or if the
issue arises again and again in the federal court system, consuming huge amounts
of private and judicial resources, that may be an appropriate occasion for
Supreme Court review. But the lawyer needs to think beyond the question of
whether or not there has been error in the case because the Supreme Court does
not sit to correct error. The real issue is whether this is a case that calls
for a nationally binding pronouncement from the Supreme Court that clears up the
confusion in the lower courts.
Q.What about the statement of the question
A.It may be the most important part of your
A.I would say so in the case of a certiorari
petition. Justice Brennan used to say that sometimes he could decide whether a
case was "certworthy" or not simply by reading the question presented. The
object is to capture both the issue and its importance, without becoming too
argumentative. Sometimes a short preceding paragraph is used to state background
needed to understand the question. The whole thing may not exceed one page. Here
is an example from the recent BMW case: "Whether the $2,000,000 punitive
exaction in this case, which is 500 times respondent's compensatory damages, is
grossly excessive in violation of the Due Process Clause of the Fourteenth
Q.Is the problem of incivility a factor in appellate
A.I think that is less of a problem in the court of
appeals than in the trial courts. The debate is so carefully structured that
everyone is on their best behavior. But there is a problem of hysterical
rhetoric, and there is a problem of one-sidedness in the presentation that I
think is analogous to incivility. The court wants briefs that respond to the
difficulties in the case as opposed to briefs that treat the other side's
submissions as being utterly frivolous and which fail to come to grips with the
real difficulties. I see briefs of this sort coming from very prominent law
firms, which treat the facts in a completely one-sided fashion and put a spin on
the case law that is entirely partisan and which fail to address the
difficulties in the client's position. Two such briefs are like ships passing in
the night, and the opportunity is lost to the help the court understand what the
competing principles are and why one rather than the other makes good
Q.What do you do with a responsive brief that
blatantly miscasts your arguments and ignores critical
A.I think it is best to respond more in a spirit of
sorrow than in anger to a performance of that sort. It is necessary to point out
that these are falsehoods and that they are serious ones that the court should
not be misled.
Q.But not necessarily to accuse the other lawyer of
having done it intentionally?
A.Right. I don't think that serves a
Q.Judges are always telling lawyers about their
short-comings. What advice could you give to appellate court judges about how
the appellate system can be improved?
A.I am convinced that time is not used in an optimal
way by appellate judges, and I have that impression whenever I read a stack of
slip opinions from the various circuits. It is striking how much is being
written on rather straightforward legal points where the precedent is
established by the Supreme Court or by prior circuit law, and yet page after
page is being written on these well-trodden grounds. Certainly long opinions
make sense when new ground is being broken. Then you need a full discussion of
the legal merits, but in many of the cases these opinions seem unduly long; in
many of these cases a five- or six-page unpublished memorandum opinion would be
sufficient and would be a great time-saver. There are other cases where a ruling
from the bench or a one-page ruling is appropriate. At the same time, I think
that the judges hurt themselves by cutting back so severely on opportunities for
counsel to communicate with the court before the decision is made. For example,
in very large cases, with multiple complex issues and cross-appeals, I have
noticed that some courts are quite inflexible about granting even an extra ten
pages for the briefing of the matter, and in some of these cases, the courts
will struggle for months and months if not a year or more to come to a decision.
Now, if they had given counsel a few more pages to complete the explanation they
would be, I think, assisted rather than hindered in coming to a
Q.Do courts also increase their burdens by imposing
strict limitations on oral argument?
A.I believe so. If there were 15 minutes rather than
10 minutes to present oral argument, more of the judges' questions could be
answered. The lawyers are in a position to quickly provide information that the
court needs as opposed to a law clerk who has to fumble through an unfamiliar
record. So if one were to shave time from the opinion-writing process and give
it back to counsel for oral argument, I think that would be an aid to the
judges. Speaking as a consumer, I would rather have five more minutes to
communicate before a decision is made than a long-winded explanation why I am
right or wrong.
A.A number of the circuits forbid counsel to send a
letter to the court with a supplemental citation if there is any discussion or
argument. You simply send in the opinion with a terse reference to the case.
That means somebody has to read through that whole opinion and figure out
exactly how it supports or fails to support your argument. Now if counsel were
given even one page to explain the significance of that case, the judges and
their clerks could tell at a glance whether the case was worth studying or not,
and how it fits in. So, I think some of these time-saving devices actually
backfire. One final example: a few of the courts informally reserve the first
half of the argument for a rather uninterrupted presentation from counsel. This
is a good idea. When counsel go through the argument preparation process in a
major case, it is inevitable that they will have a better understanding of the
case than they had when they wrote the briefs. It is inevitable that they will
be able to give a distillation of the critical considerations that would be very
useful to the court in deciding the case. But if the entire 10 or 15 minutes
allotted for argument is spent answering questions, the court misses out on an
important resource that would help it to decide the case.
Q.Paul Bator wrote a somewhat critical article titled
"What is Wrong with the Supreme Court" shortly before he passed away. As a
student of the Supreme Court, what are your views on the strength of the Court
compared to prior decades?
A.Paul's point was that the Court's perspective on
the cases coming up to it was more limited than it should be and that the Court
was letting pass a number of very important cases every term that required a
national rule of law. There is an old debate about whether the Court grants
review in a sufficient number of cases. It is taking on more currency now as the
number of grants of review goes down. The Court decides less than a hundred
cases a year now, which is substantially down from prior years.
A.I think this is a function of several things. One
is the elimination of mandatory appeals. Another explanation is a change in
personnel. Some of the Justices who have retired, like Justice White, thought
that the Court should grant review in every case that involved a conflict, and
that voice is not being heard today. Another thing, frankly, is that the lower
court judiciary is more attuned today with the views of the conservative
majority on the Supreme Court and there are fewer occasions where a decision is
completely out of line with current Supreme Court philosophy. I think a final
factor is that the Court's perspective is unduly narrow. The Court does not
attend sufficiently to the kind of important commercial disputes which Paul
Bator described in his article. There are cases that the Court lets pass that
vitally affect the operation of the national economy— cases that go to the
efficient operation of businesses that make products for our whole society and
employ thousands of people. The Court seems, frankly, to be preoccupied with
issues of criminal law, civil rights, and federalism. Since the retirement of
Justice Lewis Powell, there has been less attention to business cases. I think
that is a fair criticism of the Court today.
Q.Is this problem a product of limited judicial
A.The background of the current Justices is largely
in academics, government service, and service on the lower court judiciary.
Business law experience is limited. And this is not the only area where the
Court's perspective may be unduly constricted. I think the departure of Thurgood
Marshall from the Supreme Court left a gap in the experience of the Court.
Justice Marshall's career focused on society's "have nots." That is an important
Q.So, you are really advocating in the selection
process, the nomination process, Justices with a varied and broad-ranging degree
What is the "Judicial
Q.In this connection, you have strong feelings about
the Bork and Thomas confirmation hearings, don't you?
A.Yes, I do. I think it was a serious mistake to fail
to confirm Bob Bork. He would have been an outstanding member of the Supreme
Court. He was experienced in private practice, he had a distinguished career on
the faculty of the Yale Law School, and he revolutionized antitrust law with his
articles and books. He was an effective courtroom advocate as Solicitor General,
and he was a fine judge on the D.C. Circuit. Those who worked with him and knew
him personally, liberal and conservative, Democrats and Republicans, had a high
opinion of his abilities, his integrity, and his character. He was caricatured
before the Senate Judiciary Committee as somebody lacking humanity and
criticized for being outside of the "mainstream" of judicial philosophy, when in
fact his views were consistent with the majority of Justices who served on the
Supreme Court over the years.
Q.What is the "judicial mainstream"?
A.No one has the slightest idea. And the irony is
that by rejecting a nominee for being outside of the "mainstream," the Senate
adopted a test that is now being turned against liberal academics. Scholars are
afraid to generate original arguments and analysis, and those who are nominated
are the safe nominees who don't have a paper record, who have published less and
spoken less than people like Bob Bork. That diminishes the quality of the
nominees. I think it has a chilling effect on academic scholarship which is
unfortunate. And it turns the Senate confirmation process into something of a
circus with referendums about what is in the mainstream or whether an individual
personality is an attractive one to television audiences. In the case of Bob
Bork, there were criticisms of his wearing a beard, which some Senators
lampooned during the debates.
A.I think Justice Thomas is an extraordinarily
talented jurist and was a good selection for the Court. He was a top student at
Yale Law School. He was a successful corporate law practitioner in a Fortune 500
company. He was a law enforcement official in the civil rights field during the
Reagan administration, and he was a good judge on the D.C. Circuit. He is
certainly a conservative voice, but he is clearly a very talented and smart
judge. And, of course, he brings to the Court a very different perspective. He
is an African-American who has known some of the hardships that Justice Marshall
experienced but a very different philosophy has grown out of that background. I
was disturbed by the confirmation process in the Senate for the same reasons
that I was disturbed by the Bork confirmation hearings. Many of the participants
wanted to apply a litmus test to Clarence Thomas that asked whether he was in
the "mainstream" of American legal philosophy. That is a completely subjective
standard, and it now is being turned against people whom the Clinton
administration would like to appoint to the judiciary. The soap-opera review of
personal issues, on national television, was in my opinion a
Q.You have seen many famous advocates before the
Supreme Court. Who are the ones that stand out in your mind?
A.There are many talented advocates today. I will
mention a few. Frank Easterbrook, who is now a Seventh Circuit judge, was an
excellent oral advocate. In that same small circle, I would also include Andy
Frey and Phil Lacovara, who are now colleagues of mine, and Paul Bator, who was
a colleague before he passed away. I thought Dan Friedman, who was a senior
lawyer in the Solicitor General's office and later a judge on the Federal
Circuit, was an outstanding appellate advocate. Bob Bork, Rex Lee, Charles Fried
and Michael Gottesman are in this same category. Among the younger lawyers, I
think that Michael McConnell, Ken Geller, Lou Cohen and John Roberts are all
outstanding. This is not a boys' club. One of the most distinguished advocates
in the last twenty years is Kay Oberly, one of the talented women who served in
the Solicitor General's office.
Q.And historically who are the
A.Well, Charles Fahy was regarded as one of the very
best of all times. Robert Jackson and John W. Davis, of course, who were
Solicitors General many years ago, were truly great advocates as you can see
from transcripts of their arguments.
Q.You also worked on two Supreme Court cases with
Clark Clifford. What were your impressions of him?
A.Clark Clifford, in addition to being a master of
the Washington legal scene, was also a savvy trial lawyer, trained at the St.
Louis bar. He had a very shrewd insight into litigation strategy generally and
he was remarkably insightful in both of these cases in the Supreme Court. I also
found him to be a man of great wisdom and compassion. It was obvious why several
Presidents had sought his counsel. He suffered, as you know, from the BCCI
controversy. I was glad to learn that the jurors who ultimately considered that
matter in New York exonerated one of his colleagues and reported that they felt
that the case against the defendants was an insult to their intelligence. The
sad thing about this is that Clifford suffered so much injury before this was
resolved. He will be remembered for his service to his country, his stature as a
lawyer-statesmen, and his professional skills long after BCCI is
Q.You have been in almost all the cases over the last
decade seeking to limit punitive damages, haven't you?
A.We have been in most of them. Andy Frey, Ken
Geller, Evan Tager, Roy T. Englert, Jr., Charles Rothfeld, Andy Pincus and Tim
Bishop all have been working for the last decade to rationalize punitive damage
awards and to develop constitutional limits. The issue came up again and again
with different refinements and different arguments. The Court saw these issues
in various contexts and got a sense of the dimension of the problem. But it took
that period of percolation. Substantive law reform is not for the fainthearted.
It takes years and it can be costly.
Q.You were finally successful in the BMW v.
A.Yes, Andy Frey recently represented BMW in that
case in the Supreme Court.
Q.What did the Court decide about punitive damages in
A.This was a case where the plaintiff complained that
the automobile he purchased as new had been scratched and refinished without his
knowledge. He sued not just for a few thousand dollars in damages he said
affected the resale value of the car, but for several million dollars in
punitive damages, claiming that this had been a deceptive act. The state court
initially awarded $4 million in punitive damages and a tiny award of actual
damages. The punitive award was cut in half on appeal. The Supreme Court
concluded that in view of three factors, reprehensibility, the ratio of actual
to punitive damages, and the criminal fines that would be applicable in an
analogous situation, this award was completely out of proportion and invalidated
Q.Have you been involved in substantive legal reform
at the congressional level as well?
A.That's right. A recent example of a long-term law
reform is the Private Securities Litigation Reform Act of 1995. A number of the
lawyers in our group worked on securities law issues in the appellate courts,
trying to rationalize liabilities, and they ultimately took this problem to
Congress. Mark Gitenstein and Andy Pincus in our Washington office were
responsible for this. They worked with a coalition of people who were concerned
over this subject and made the broad public interest arguments about why this
scheme of liability was harmful to the economy. They took the issue to Congress,
and a bill was passed. The President vetoed it and they then worked to override
the veto by making the case again to a bipartisan group in Congress. That effort
was ultimately successful.
Q.What do you make of claims appearing in recent
books like The Lost Lawyer that our profession is falling into a
A.That is a book by Anthony Kronman, who is the dean
of the Yale Law School. The thesis of the books is that the legal profession
today is suffering from a malaise, which affects particularly the younger
members. The argument is that legal service has become a commodity driven by
efficiency considerations and specialization and that young lawyers do not have
a chance to get a broad exposure to the law. At the same time, in-house legal
departments are growing and lawyers have less contact with business clients.
There is less of an opportunity for a lawyer to become a generalist. All in all,
the lawyer-statesman is on the wane. Lawyers are becoming more and more
dissatisfied with the situation but do not know what to do about
Q.How serious is the problem?
A.I think it is a serious problem and a number of a
people have commented on the same thing, a number of books have been written on
the same subject. But I am more hopeful about a solution than Dean Kronman.
Ironically, the solution seems to come from one of the things that he talks
about, and that is specialization. I see young lawyers today developing
specialties in the law that give them tremendous name recognition, that create
tremendous client demand. Their judgment on very big issues becomes vital to
businesses and other clients while these individuals are still very young and it
is precisely because they have specialized and studied a narrow but important
field of law.
Q.So, you don't decry the decline of the generalist
A.I decry the decline of the generalist, but I see
early specialization as a potential solution. My experience is that once a
lawyer becomes a specialist and develops expertise on a subject that is of
interest to lots of people, those relationships turn into broader relationships
where advice is sought on a range of problems.
Q.What kind of experience would you look for if you
were selecting federal appellate court judges?
A.I think breadth of experience is very important and
I think it is a virtue that is being overlooked today.
Q.That would cut out your specialists though,
A.Well, there are a number of specialties lawyers can
pursue. One leads to another, as I have indicated. And I am a great believer in
following different career paths at different times — including government
service, teaching, private practice, and pro bono work. And I believe there is
value in tapping the lifelong experience of older nominees. Older people have
maturity which is important, and that has been overlooked in recent years when
Presidents have tried to find youthful judges who will serve for many decades. I
think intelligence and professionalism obviously are key, and integrity and good
sober judgment, willingness to listen, open-mindedness— all of these
traditional, perhaps humble virtues are critical. It is much less important
whether a lawyer has a particular view on some litmus test issue. I think we
should look for appointees who come from different backgrounds. I would not try
to take them all out of the academy or all out of the judicial
A.I think judicial demeanor is important, if not as
important as professional quality, experience, and integrity. But it is
important that litigants feel that the judge has heard and understood their
position and listened with a sympathetic understanding. That is important to our
fellow citizens and it is important to lawyers, I think, too, to feel that their
arguments have been listened to and not simply slapped down.
Q.You are an economically minded fellow. Viewed from
an economic perspective, are there too many lawyers?
A.I am not sure there are too many lawyers. I think
there is too much litigation. I don't think that the volume of litigation in our
society is productive. It seems excessive to me, and to most of our fellow
citizens if recent surveys are believed. I realize many of your readers will
disagree with this opinion. But I was brought up in the belief that a settlement
was better than a lawsuit, that the litigation system is not a lottery, and that
one of the worst things that can be inflicted on a client is a long drawn-out
lawsuit with uncontrollable costs. I do feel that we rely on litigation to
settle too many disputes that could be settled outside of the courthouse and too
many social issues are being brought before the courts through imaginative
extensions of the constitution and federal statutes. So, I guess you would put
me in the camp of the skeptics about the current high volume of
Q.Are lawyers in the main worthy of the
disapprobation they receive?
A.Well, I think many of our colleagues are doing very
constructive work on many different fronts. Particularly those who are making
agreements possible and helping citizens to find their way through the legal
system and through the bureaucratic maze. Those who defend people accused of
crimes are contributing an essential service, as are prosecutors, but some of
the civil law gladiators have properly earned the disapprobation you refer to by
bringing suit too readily, by demanding jackpot justice, and by using enormous
damage claims and the burden of litigation to extort settlements. These are
conventional complaints. I must say I agree with them.
Q.Do you think the problems with over-crowded
appellate dockets would be alleviated if there were more
A.I would not add more and more judges to deal with
caseload burdens. As more judges are added the more we have a multiplicity of
opinions on what the law means. I had the experience as a law clerk of seeing
diametrically opposite opinions rendered on the same subject on the same day,
both unanimous. So, the more judges you add the more uncertainty there is, the
more litigation there is, and the more demand there is for additional judges.
That is not a good solution. I think some of the other things we have talked
about, including the writing of shorter opinions and more emphasis on
settlement, would go a long way toward remedying this problem. Perhaps we need
more specialization in the appellate judiciary to avoid conflicts in the law.
The most effective solution will come from the legislatures and the courts
themselves when they use more restraint in creating new causes of action. The
litigation system cannot be expanded endlessly.
[Copyright © 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.]