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Just Because Counsel Can Do an Appeal Doesn’t Mean that he Should

Posted in Oral Argument

Amateur HourIn episode #12 of First Mondays, Dan and Ian play cringe-worthy clips from the recent Supreme Court argument in Lee v. Tam, a case involving the disparagement provision of the Lanham Act and the First Amendment. There is a similar case in the pipeline involving the Washington Redskins. And counsel in that case argued that cert should be denied because of the poor quality of counsel for the band, The Slants. Counsel argued that the case involving the Redskins was a better case because of better counsel. Last week, the commentators speculated that the lawyer might be angered by the criticism and rise to the occasion. Alas, he did not.

At 20:27 in the podcast, Dan and Ian play some regrettable moments that seem to reinforce the choice of counsel argument. In the first clip, counsel responds to a hypothetical question by saying “that’s not a question before the Court.” Judges hate this response. Every panel I have ever watched at a CLE on oral argument features a judge or justice saying that judges hate this response. And it goes downhill from there.

The First Mondays guys, both former SCOTUS clerks, go on to say that the poor advocacy problem is most prevalent in criminal cases before the Court, to the tune of three to four arguments per term. Typically, the criminal lawyer who handled the case keeps the case all the way to the Supreme Court. Most criminal lawyers I know talk of their dream of one day presenting a SCOTUS argument. Often, I try not to picture how that might go. So, I’m not surprised at the notion that it so often doesn’t go well.

They then draw a medical analogy. Imagine a patient is diagnosed with a rare disease and the local general practice doctor chooses not to hand the case over to a specialist because the procedure will make the doctor famous. Such a thing would not happen in medicine but does happen in the law. And it apparently happened in this copyright case.

The problem at issue here goes deeper than advocacy at the US Supreme Court. Far too often, a lawyer tries a complex criminal case because he did a great job at drafting Aunt Jean’s will. When I take a new criminal appeal, this is generally the background. Or the lawyer handles an appeal simply because a potential client with an appellate issue walked in the door one day. And the client comes to me with a mess and a prayer for possible habeas relief. And it is not uncommon for me to get a call from a lawyer with a question about an appeal that they are handling. It becomes clear, not far into the phone call, that the deeper problem is that the lawyer is in over his head and should not be doing the case.

Dan and Ian go so far as to say that the choice of counsel doctrine should not apply at the Supreme Court level. Not only do I agree. I think the argument doesn’t go far enough.