The Triumph of Losing

Tony Mauro

Corporate Counsel

11-01-2012

Are lawyers throwing their clients under the bus in pursuit of a highly coveted chance to argue before the U.S. Supreme Court? That question is raised by an intriguing article in the Harvard Journal of Law & Public Policy that focuses on lawyers who have the task of opposing certiorari in a case that has been appealed to the high court.

Lawyers in the position of respondent ordinarily urge the Supreme Court not to take up the case, in large part because their client won in the court below. But author Aaron Tang asserts that as appearances before the Supreme Court become rarer and prized "beyond quantification," these lawyers face unhealthy incentives to soft-pedal their arguments so that the court will grant review anyway and set the case for oral argument.

Writing in the summer 2012 issue of the publication, Tang notes: "The benefit of becoming one of the few, esteemed attorneys to appear before the court might be diametrically opposed to what is best for the client who has prevailed below and who would obviously prefer to . . . never have counsel set foot in the U.S. Supreme Court building at all." A former fellow at Stanford Law School's Constitutional Law Center, Tang is now clerking for Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit.

Tang isn't the first scholar to suggest that the increased prestige and value of appearing before the Supreme Court may be distorting attorney incentives to the detriment of clients and the court itself. In a controversial 2010 article, professor Nancy Morawetz of New York University School of Law suggested that pro bono lawyers and newly created Supreme Court clinics may, in the interest of burnishing their high court credentials, be appealing cases that should or would otherwise be left alone.

The latest article suggests that the problem is real when it comes to opposing high court review. Tang cites eye-opening results of a survey he conducted of 116 D.C. lawyers with Supreme Court experience. Seventeen percent of lawyers who have handled more than 25 cases before the court agreed that they have seen instances where an attorney provided "less than zealous representation on a brief in opposition to certiorari due in part to a personal desire to argue before the court."

One unnamed lawyer surveyed told Tang that "in a world where 'number of Supreme Court arguments' is like notches in a belt, and the media attention heaped upon practitioners is so intense . . . the pull of this brand of 'practice-building' may be just too great to resist."

Tang notes that many Supreme Court practitioners list the number of cases they've argued, omitting how many of those cases they've won—suggesting that the value of arguing at the high court is not greatly affected by actual outcomes. In other words, lawyers opposing cert might gamble at the cert stage in hopes of securing argument time, even if they might ultimately lose on the merits—as respondents usually do. When the court grants cert, it ends up reversing lower court opinions most of the time.

Tang suggests that the ethical dilemma is likely to be greatest for first-time advocates before the court who represent clients who also have little experience there. Supreme Court veterans would not want to damage their reputations by punting in a brief opposing cert, he said, while one-time advocates may not be as concerned about getting a second chance before the court. And court-savvy clients might detect less-than-vigorous representation at the cert stage and end up hiring someone else to argue the case on the merits if review is granted.

"I probably get hired as often as not after a client unsuccessfully opposes cert. So if the lawyer's hope was to get an argument, it did not work out so well," says Carter Phillips of Sidley Austin. Phillips, who has argued more cases before the high court than any other current private practitioner, also says, "Given that the court ordinarily reverses 75 percent of the time, a lawyer would make a huge mistake by tanking on [opposing] certiorari. I think the experienced lawyers would rather behave ethically and convince the court to pass rather than try to fall into the 25 percent pool."

Another veteran advocate, David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, says he was shocked to hear that lawyers might be soft-pedaling their opposition to certiorari for the sake of personal aggrandizement. "I'd be extremely disappointed if it were true. Our duty is to zealously advocate for our clients at all stages," Frederick says. "I have never seen a brief in opposition that reflected that kind of unethical behavior."

A version of Mauro's story appeared in The National Law Journal, a sibling of Corporate Counsel.