September 30, 2010

Suggestions for improving advocacy at the California Supreme Court

We have recently posted about a series of articles discussing the benefits of oral argument. Those articles focused primarily on the potential impact of oral argument in California appellate courts in affecting the outcome of decisions. Earlier this year, Jeff Bleich (current Ambassador to Australia, and former special advisor to President Obama and California State Bar President) gave a thoughtful address about ways to improve the quality of advocacy in the California Supreme Court. Ambassador Bleich began by pointing out that “[t]he U.S. Supreme Court has over time cultivated a group of exceptional advocates who appear frequently before it, and who have helped accomplish these goals of better and more precise decision making. . . . On the other hand, even in that Court, there were advocates who weren’t prepared, or who distorted the record, or were so nervous that they couldn’t think clearly. My favorite of these was a lawyer from New York who kept calling Justice Scalia ‘that guy.’ In those cases, everyone loses. The Court generally stopped asking questions of the lawyer altogether; the lawyer and his client effectively forfeited all opportunities that oral argument presented to make their case; and the Court’s decision was deprived the value of a nuanced and balanced presentation.”

Ambassador Bleich then pointed out that “[w]hile the California Supreme Court stands at the pinnacle of state courts in terms of its docket, I’m not sure that the advocates who appear before it-the Supreme Court Bar members-share that honor. Although the California Supreme Court has been blessed with some great advocates, my impression is that this group is smaller than it could be and its members appear before the Court relatively infrequently. Sitting in on oral argument, or watching it on California television, I’ve seen some extraordinary lawyers argue. But I’ve also seen some very ordinary argument.” He proposed a number of possible reforms geared toward improving the quality of advocacy in the court.

First, he suggested patterning the California Solicitor General’s office after that of the U.S. Solicitor General, and the Solicitor Generals of several other states. “Twenty-nine states have their own Solicitor General’s office, which is nearly four times as many as there were two decades ago. There’s a reason for this trend-it tends to produce better advocates for the state in high-stakes cases. Although California appointed its first Solicitor General a few years ago, it did not set up the office to function like the U.S. Solicitor General’s office. In fact, California’s office functions much like the system that most other states are abandoning. Currently, California’s office has an appellate section chief who specializes in state and federal appeals, but mostly leaves to the assistant district attorney who handled the case below the privilege of arguing the case in the Supreme Court. As a result, California has not formed a small, trained corps of lawyers who are familiar with the Court’s procedures and have developed a strong reputation with the Court as a reliable counselor on difficult issues. Moving to a model similar to the U.S. Solicitor General’s office would increase the professionalism and quality of the work. This is not to knock the trial lawyers in state government who currently handle appeals. However, the skills that make for a good trial lawyer do not necessarily translate to a good appellate advocate. A trial is a search for truth, while an appeal is a search for error. Each attracts different types of lawyers and benefit from different types of advocacy. A corps of appellate advocates ensures temperaments that are better suited to more scholarly analysis, and less of the skills that may be persuasive to a jury-such as dramatic flourishes-but fall flat with appellate jurists.” Revamping California’s Solicitor General’s office was a reform that Dean John Eastman also urged during his run for the Republican nomination for California Attorney General earlier this year.

Second, Ambassador Bleich suggested that a special law school clinic focused solely on the California Supreme Court be established that would operate like the many law school clinics around that focus on the United States Supreme Court. Such a clinic would benefit advocacy at the California Supreme Court in the same way clinics have improved advocacy at the United States Supreme Court : “These clinics typically work with students and faculty to review lower court cases, identify promising decisions, help the litigants prepare petitions for certiorari, and often help represent the parties if their petition is successful. The success of these programs is based on the ability of trained clinics, reviewing a wide range of decisions year after year, to recognize the issues that the court actually cares about. If a clinic does this well, the Court can start to rely on the clinic to find cases with a clean record. The Court also can trust that the briefs will be carefully reviewed and edited by professors and practitioners, and that the attorneys who argue the case will actually practice ahead of time.”

2 Responses to “Suggestions for improving advocacy at the California Supreme Court”

  1. These are great points. Developing a California Supreme Court bar in the same vein as the U.S. Supreme Court bar is an excellent and overdue development.

  2. If California can managed to get something like this setup, I think it would do the State a great service.

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