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The evidence continues to mount: You have a significantly better chance of winning at the Supreme Court if a veteran advocate argues your case before the justices. New research by Stanford Law School professor Jeffrey Fisher, himself a Supreme Court specialist, shows the growing influence of the small group of lawyers who dominate the rarified world of Supreme Court advocacy. It was a mere 25 years ago that the late chief justice William Rehnquist declared there was no Supreme Court bar to speak of. In 1980, only 2 percent of the arguments made to the Court were by lawyers with 10 or more prior arguments. By 2007 that grew to 28 percent, and anecdotally, it appears certain the percentage has grown even more since then. Fisher studied advocacy and outcomes in 352 Supreme Court cases over the past seven years and found that parties represented by specialists won 53.4 percent of the time. Non-specialist advocates won only 29.6 percent of the time. Broken down another way, the statistics show that when specialists represented criminal defendants, civil plaintiffs and immigrants as petitioners, they won 68 percent of the time; non-experts won 48 percent. When veteran advocates represented those parties as respondents, they won 30 percent of the cases; non-specialists won 15 percent. In an interview, Fisher said that in spite of the data, “I do not think specialists should do every single argument. I think there are some cases where having a lawyer who is a longtime practitioner in a specialized field — say, patents, bankruptcy, some types of criminal practice — can convey practical knowledge and wisdom about the way things work that can be very helpful to the justices.” The main focus of Fisher’s research paper was the rise of Supreme Court clinics at law schools, including the one he co-directs at Stanford, which was launched in 2004. The clinics have brought expert advocacy to previously under-served categories of Supreme Court litigants, including criminal defendants and individual plaintiffs in civil rights and immigrations cases, among others. Lawyers and professors have argued 40 cases briefed by clinics, and now represent parties in more than one in ten cases, Fisher states. Fisher excluded from his study most civil business cases and white collar criminal cases in which both parties would likely be represented by top-tier expert advocates. He highlighted instead those criminal and civil cases in which a party might go unrepresented or under-represented without the new availability of clinics. He defined Supreme Court specialists as those lawyers who had already argued five or more times before the Court, or whose law firm or organization had argued at least 10 times at the Court. In theory, said Fisher, “it seems strange” that the disposition of the pure questions of law and the Constitution that the high court deals with should depend on who represents the parties. “On the other hand, it stands to reason that if the quality and experience of lawyers matter everywhere else, they ought to matter in the Supreme Court as well,” wrote Fisher. “The justices are people like any other judges.” Fisher said that no other variable except for specialization can explain the higher success rates he found. He discounted the possibility of “selection bias” – the theory that specialists succeed more often because they are better able to pick a winning horse at the starting gate. The expertise brought to parties by Supreme Court clinics and other pro bono efforts, Fisher asserts, “truly levels the playing field” in cases argued before the Court. Individual plaintiffs and litigants represented by veteran advocates in the cases he studied have roughly a 50 percent chance of success, his data suggests, a rate Fisher finds remarkable because their adversaries are often corporations and government entities. Individual parties represented by non-expert counsel prevail just under 30 percent of the time, he said. Clinics have come under some criticism in recent years. New York University School of Law professor Nancy Morawetz has argued that the clinics’ race to argue cases on the merits before the Supreme Court has created “distorted incentives” in practice before the Court. She asserts that clinics may not consider a case’s broader implications for the development of the law, focusing instead on their desire for face time at the Court. As a result, she says, clinics sometimes appeal cases to the Court that for strategic reasons might have been better left alone. Clinics and other pro bono practices, she says, “should step back from their sheer competition for merits opportunities” and consult with other experts in the relevant field of law before appealing cases to the high court. Fisher agreed that “Fun and interesting as running a Supreme Court clinic may be, Supreme Court litigation is not a sport.” But he said the client’s interests are first and foremost. While studying the context of a case and considering alternate approaches is important, Fisher said “it would be a drastic step for a Supreme Court clinic to turn away the case on the ground that it might make bad law.” Tony Mauro can be contacted at [email protected].

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