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Arguing before the Supreme Court is daunting at any time. But arguing there for the first time; that’s the ne plus ultra of fear, exhilaration and unpredictability. Talbot D’Alemberte lost 10 pounds before his first argument 10 years ago. Ian Macpherson lost his lunch the day before he argued for the first time in 1980. Beth Brinkmann and Walter Dellinger hardly slept the night before their first arguments in 1994 and 1990, respectively. They and 10 other lawyers recount their “first time” U.S. Supreme Court arguments in the latest issue of The Journal of Appellate Practice and Process, published by the William H. Bowen School of Law at the University of Arkansas at Little Rock. The essays are as useful and riveting as law review prose can get, full of personal asides and details that make it clear that a first-time experience at the Supreme Court is etched in a lawyer’s memory like no other episode in his or her life. For Harvard Law School professor Laurence Tribe, the memories of his first argument in 1980 are sadly intertwined with those of the death of his father just two weeks before. The argument in what turned out to be the landmark Richmond Newspapers v. Virginiacase could not be rescheduled. During his preparations Tribe was haunted by his feelings of grief. “In none of the 30 or so Supreme Court cases that I’ve argued since Richmond Newspapershave I passed the days leading up to oral argument in anything like the unfocused, disoriented frame of mind in which I felt those days and nights slip by,” Tribe wrote. Even as he stood to argue, he said, “a large part of me was not in that chamber, its pale marble columns gleaming against a sober background of mahogany and deep red velvet … . Part of me was reliving my father’s funeral.” Tribe’s distraction led to one of his few missteps before the Court. Before his father died, he had planned to visit the Hanover County, Va., courthouse that was the focus of the case, which tested the First Amendment right of the press and public to attend criminal trials. But he never made the visit, and when then-Associate Justice William Rehnquist asked him during oral argument where Hanover County was, Tribe was tempted to tell him why he could not answer the question. But Tribe remembers thinking, “I couldn’t appear to be asking for his sympathy,” so he answered Rehnquist this way: “It’s some miles from Richmond, Mr. Justice.” To which the associate justice, with a map clearly spread out before him, replied, “Well, … that’s like, most places are some miles from Richmond.” Tribe remembers not feeling at all embarrassed by his lapse. “Big whoop,” Tribe wrote. Other authors do concede embarrassment in recalling certain moments. J. Richard Cohen, general counsel of the Southern Poverty Law Center, recalls that during his 1986 argument in United States v. Paradise, Justice Byron White asked him a question that Cohen simply did not understand. “The moment presented me with a terrible dilemma,” Cohen wrote. “Should I start babbling and hope that I’d say something responsive? Or should I announce in front of the world that I didn’t get it, thereby confirming that I had no business being there in the first place?” Cohen writes that he paused and said, “Your Honor, I regret to say that I do not understand your point.” It was the right thing to say, because Justice White simply rephrased his point without any ado. “It was no big deal,” Cohen recalls. Emory University Law School professor David Bederman says that he ended the rebuttal in his first argument in 1993 by telling the Court, “I have no further substantive points.” Chief Justice Rehnquist could not resist this retort: “Do you have any nonsubstantive points?” Amid laughter, Bederman deftly replied, “I will not rise to that invitation, Chief Justice.” Arkansas law professor J. Thomas Sullivan recalls his skewering by justices in his 1985 debut at the Court. After his opening sentence in which Sullivan stated the issue, Justice White abruptly asked, “Isn’t that why we’re here?” Sullivan’s appearance was preceded by a comedy of errors. Days before his argument, Sullivan was playing with his 1-year-old daughter, and planted a suction-cup toy on his forehead. “When I finally dislodged the thing, it had left a large, well-defined red circle in the middle of my forehead that looked exactly like a target,” Sullivan wrote. He spent two days frantically trying to make it go away, and thankfully it disappeared the day he flew to Washington, D.C. Sullivan also recalls saying his prayers before argument while in the room where lawyers who are about to argue assemble. The nervous lawyers were making small talk. One lawyer told Sullivan that his senior partners warned him that Chief Justice Warren Burger hated to see lawyers wearing button-down collars. Sullivan said, the lawyer “frowned with mild dismay as he suddenly noticed the button-down collar on my brand-new white shirt and said, ‘I guess I shouldn’t have mentioned that.’” For Mayer, Brown, Rowe & Maw partner Andrew Frey, his first argument — the first of more than 60 — came in 1972 when he was at the U.S. Solicitor General’s office. It was a perjury case, Bronston v. United States, and Frey knew from the outset that it would be difficult, if not impossible, for him to win. “The question was whether I could get any votes at all,” Frey writes. Unknown to Frey at the time, his outfit did not help his cause. He had cobbled together his obligatory morning suit — required for members of the SG’s office — with a coat, pants and a borrowed vest. “Unfortunately, the vest was pearl gray, not charcoal,” Frey wrote, “and though it had been worn before by the fellow who had loaned it to me, it was my appearance in the vest that prompted a call from the chief justice to the S.G. a few days after the argument, cautioning that only a charcoal gray vest qualified as proper attire.” Frey was peppered with skeptical questions from the very beginning, he recalled: “After this battering had come to a merciful end, I was consoled by the seemingly sincere statement by Deputy S.G. Larry Wallace … that my argument was the best he had ever heard in defense of an indefensible case.” Wallace was right; Frey lost by a unanimous vote. Solo practitioner David Bruck in his piece reflects on the special burden carried by advocates for death row inmates — not just their clients, but others in similar situations. “Of course, a lawyer puts his own clients first,” Bruck wrote, “but one can’t (and shouldn’t) handle a death-penalty case in the Supreme Court without giving a lot of thought to how many people will be hurt (killed, actually) if the case goes bad.” Bruck’s first argument was Skipper v. South Carolinain 1985. When he stood to argue, he realized — as many of the other essayists observe — how close he was to the justices. “I stood and gazed up at the chief justice in a state of suspended animation for what seemed like a very long time,” Bruck wrote. “It reminded me of the ski racing I’d done as a kid, standing in the gate waiting for the signal at the top of the slalom course. The trick, our coach had told us, was not to forget to breathe.” He finally began, but 10 minutes into his argument, the justices broke for lunch — something they don’t do anymore, since the Court’s smaller docket enables it to hear only two cases a day, both completed before lunch. “It was like a time-out in the middle of an Olympic bobsled run,” Bruck said, continuing his sports analogies. After the argument — which he ultimately won — Bruck recalls telephoning his client, who was anxiously awaiting word on death row. Bruck was struck by “the sense of incongruity between the majesty and pageantry of the Supreme Court proceedings and the dingy squalor of the death-row cell block on the other end of the line. It was hard to believe that one could be so intimately connected to the other.” The essays relate personal experience but also offer invaluable, if conflicting, advice. Brinkmann, now of counsel at the D.C. office of Morrison & Foerster, recommends two moot courts before oral argument. In addition to rehearsing all possible questions, Brinkmann says, they served as “a reality check. I really was going to argue before the Supreme Court, and soon.” On the other hand, Timothy Coates of the Los Angeles firm Greines, Martin, Stein & Richland declined all offers to stage moot courts for him before his first argument in 1991. “I wasn’t concerned about the dynamics of an appellate court, because I had already had a substantial number of appellate arguments,” he said. Coates’ advice, instead, was to “come to Court with a fair amount of experience, try to observe an oral argument in advance, and, of course, prepare until you’re ready to drop.” He also suggested determining “the one question that you would not want to be asked. Then figure out an answer to that question.” One more bit of advice from Coates, who ended up partly winning and partly losing his case: “Have fun. This is why you’re an appellate lawyer.” Tony Mauro is Supreme Court correspondent for American Lawyer Media andLegal Times . E-mail: [email protected].

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