By Dr. Ken Broda Bahm:
(Used by the kind permission of Art Lien, courtartist.com)
Over the past couple of weeks, I’ve been fixated on the historic oral arguments before the Supreme Court focusing on the healthcare law. As I’ve reviewed the transcripts and audio recordings of the unprecedented six hours of oral argument, I’ve been struck by the skills of one advocate in particular. In what I expect will be the conclusion to this series, I want to focus on some lessons learned from Paul Clement, who represents the twenty-six states challenging the constitutionality of the Affordable Care Act. I hasten to add that I wasn’t impressed by Mr. Clement based on the position he advocates — in fact, I personally hope for a constitutional solution that does not involve throwing as many as thirty-two million Americans out of the health insurance market, but I was impressed by the quality and style of argument from the states’ side.
It is no surprise that Paul Clement, the former Solicitor General and current Bancroft PLLC partner, would turn in a superior performance. After all, he is a Supreme Court superstar, scheduled to argue seven cases before the Court this term alone. Evan Tager of Mayer Brown even called him the “LeBron James of law” due to the bidding war that ensued in 2008 when he left government service. Observers tend to agree that he has lived up to the hype. Veteran Supreme Court litigator Carter Phillips, for example, noted in an interview for Above the Law that Clement “did a spectacularly good job” and turned in “a very special performance” against the Act. So, focusing on the Court’s session on the individual mandate, I’d like to draw three lessons from the example of Mr. Clement’s argument: Prepare, prioritize and pivot. Prepare extensively, prioritize the judge’s question over all else, but pivot back to your own talking points wherever possible.
1. Prepare in Order to Know the Case Far Better Than Your Judges
The first lesson is the most obvious. Oral argument is not just a natural extension of the briefing that you’ve already done, it is a different setting that requires more limited goals, more immediately accessible expression of complex arguments, and a more reactive and flexible approach. In Mr. Clement’s case, his preparation included at least five formal moot court sessions. As The
New York Times reported, in the week before the big showdown, “There were so many of the mock arguments that lawyers call moot courts, that they threatened to exhaust something that had never been thought in short supply: Washington lawyers willing to pretend to be Supreme Court justices.” Many of the examples in the argument are, naturally enough, very complex and not amenable to being summarized in our humble blog. To appreciate the strategic and thorough nature of the response, you should really read the transcript or, better yet,
listen to the audio.
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Oral argument in appellate court generally means being tested by those judges who disagree with you. Repeatedly, however, Mr. Clement answers one of the Justice’s pointed case references by going immediately to the case and reciting specific facts or circumstances that differentiate the case from the point the Judge is trying to make. When Justice Sotomayor challenges the states on some of the argument’s less central ground on the government’s taxation power, Mr. Clement responds by dredging up a historic argument between James Madison and Alexander Hamilton on whether the government could place a tax on horse-drawn carriages, and leveraging that case to make the point that the framers would have agreed that the government cannot constitutionally tax the failure to buy something (the failure to buy a carriage, or in this case, insurance) without running afoul of the prohibition on a direct tax. The advocate’s ability to quickly adopt to overlapping challenges thrown out by multiple judges, and to retrieve and apply such a wide array of historic and legal knowledge is the product of one thing: preparation.
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2. Prioritize the Judge’s Question Over All Else
Preparing for oral argument naturally entails selecting your most critical areas of emphasis. But the demands of an active judge or panel means that, at any moment, you need to be able to drop what you were planning to say and immediately transition to your judge’s question. Even where the judge interrupts the flow of an important argument, and even when the question is leading you down what seems to be a side road, the situation demands the kind of humility that allows you to say to yourself, “Whatever I was saying can wait…let me give full attention to what the judge wants.” This ability to tailor one’s focus is a constant running through all of the advocates’ arguments, not just Mr. Clement’s. To my eyes, the entire transcript is free of any attempts to set aside a Justice’s question in order to get back on script. One might expect that in the Supreme Court, but even in an oral hearing before the county magistrate, the same principle should apply. If the decision maker has a concern that is important enough to interrupt your flow of argument, then by definition that interruption has now become the most important part of your argument. There is a guiding principle in all oral arguments, and it is found in the first words that often come out of an advocate’s mouth. It isn’t, “May it be what I planned to say,” it is “May it please the court.”
3. Pivot Back to Your Own Talking Points Wherever Possible
Still, getting to what you plan to say is important, and you do that by consistently pivoting on your answers. The term “pivot” is familiar in media and political communication circles, but may be less familiar in law. But the strategy is involved in nearly every oral argument answer I see in the transcript. You pivot by moving from facing one way to facing another, in this case, from facing their argument to facing yours. Your first response after the judge interrupts is always to answer the judge’s question. Always. If you’re not answering, then you’re not adapting and not persuading. But the response doesn’t end there. If all you do is answer, then you are forever on the defensive, doomed to fending off attacks without ever building your own arguments. In effective oral argument, you answer the judge’s point first, then naturally pivot back to one of your own affirmative arguments. This is where Mr. Clement truly shows the mastery of an experienced appellate attorney. For example, Justice Kagan challenges Mr. Clement with the central argument that individuals without insurance are still in commerce, and hence subject to regulation, because “they are making decisions that are affecting the price everybody pays for this service,” due to the fact that the uninsured receive uncompensated care in emergency situations.
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Mr. Clement first directly answers Justice Kagan’s claim: “If all we were concerned about is the cost sharing that took place because of uncompensated care in emergency rooms, presumably we would have before us a statute that only addressed emergency care and catastrophic insurance. But it covers everything, soup to nuts…”
Then he pivots this point back to one of his own central arguments: “But there is a much bigger cost shifting going on here, and that’s the cost shifting that goes on when you force healthy people into an insurance market precisely because they are healthy, precisely because they are not likely to go to the emergency room, precisely because they are not likely to use the insurance they are forced to buy in the [Act]. That creates a huge windfall. It lowers the price of premiums.” That argument then comes back to the states’ central position that Congress cannot constitutionally have the power to “compel individuals to enter commerce in order to better regulate commerce.” The mark of a successful pivot is that you end up on your own ground. You land on a powerful argument for your position, and not just on a rejoinder to a point against you.
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Preparing for oral arguments often involves reading a ton of briefs, and that is understandable. The briefing is the foundation for the argument and the ultimate decision. But briefs don’t complete the argument, and briefs can’t engage in a spontaneous and dynamic high-level dialogue in the way that oral argument can. In addition to memorizing the briefs and everything behind them, advocates with an oral argument in their future might also prepare by studying the examples of great advocates.
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Posts in the Supreme Court Series:
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Image Credit: Special thanks to Art Lien, courtartist.com, for allowing me to use the image of Paul Clement arguing before the Court. If you are a fan of courtoom art, be sure to vist the site.