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 Court alone.
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 that experience.
Q.So you became an Assistant to the Solicitor General and later were promoted to the position of Deputy Solicitor General of the United States?
Q.What makes the Solicitor General's office so unique?
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 government.
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 it?
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 began?
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 office.
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 area.
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 cases.
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 cases.
Q.How many cases have you argued in the Supreme Court?
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 practice.
Q.That was true even in the major firms across the country?
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 clients.
Forming an Appellate Department
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 more.
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 Chicago.
Q.How large is your appellate department?
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 collaborative effort.
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 rhetoric.
Q.You have represented some of the most powerful commercial interests in this country and even the world, haven't you?
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 you?
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 matter.
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 Hustler magazine.
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 Court.
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 the forum.
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 time?
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 ask.
Q.Could you describe the moot court process?
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 it?
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 argument?
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 argument?"
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 you.
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 courts?
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 appellate judges.
Q.What are the elements of a winning brief?
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 brief?
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 authorities.
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 appellate briefs?
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 argument.
Q.One sees in briefs statements about how meritless and worthless the other side's argument is. Does that serve any useful purpose?
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 completely ineffective.
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 argument?
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 win.
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 votes?
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 favor.
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 revolved.
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 ‘50s.
Q.Before then, arguments were even longer, weren't they?
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 quickly.
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 elegant simplicity?
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 harmful.
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 Court's attention?
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 presented?
A.It may be the most important part of your petition.
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 Amendment."
Q.Is the problem of incivility a factor in appellate practice?
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 sense.
Q.What do you do with a responsive brief that blatantly miscasts your arguments and ignores critical authorities?
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 purpose.
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 decision.
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 experience?
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 perspective.
Q.So, you are really advocating in the selection process, the nomination process, Justices with a varied and broad-ranging degree of experience?
What is the "Judicial Mainstream"?
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 disgrace.
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 greatest?
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 forgotten.
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. Gore case?
A.Yes, Andy Frey recently represented BMW in that case in the Supreme Court.
Q.What did the Court decide about punitive damages in that case?
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 the award.
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 rut?
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 it.
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 at all?
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, wouldn't it?
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 system.
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 litigation.
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 judges?
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.