Talk fast?

Yes, it’s been a while – the combination of summer doldrums on the decision-issuing front and busy-ness and vacation frolicking on the part of yours truly. But the appellate courts are all back in session now with the kick off on the first Monday in October by the Supreme Court. So let’s get back to it.

The Supremes have a new rule this year (which, because they are the big poohbahs, they can, of course, ignore if they want). The Justices are now supposed to give parties uninterrupted time in oral argument before descending upon them like a chatty pack of wolves (chatty except for Justice Thomas, of course) . Although the allotted time for a Supreme Court argument is twice as long as a Law Court argument, the Supreme Court only protects an opening of two minutes, compared to the Law Court’s three minute rule. (Well, there are two more judges on the U.S. Supreme Court, and maybe we talk slower than the usual DC Supreme Court boutique crowd).   

 A Supreme Court Argument Debut, and a New Format: Opening Day Highlights, (Oct. 7, 2019)

I’m happy to report that the opening argument before the Supreme Court this year was from Sarah Schrup, the head of the practicum from my alma mater, Northwestern University School of Law. (See the link above). The issue in that case is whether the 8th and 14th Amendments permit a state to abolish the insanity defense. Here’s Scotusblog’s summary of the proceedings: A “view” from the courtroom: Two-minute warning, (Oct. 7, 2019); Argument analysis: Justices open new term with questions and concerns about insanity defense, (Oct. 7, 2019)

(This leads to a favorite insanity defense story – under the common law, the defense was long called the M’Naghten rule, after the Englishman in 1843 who killed the secretary of the Prime Minister, Robert Peel, when trying to assassinate Peel. M’Naghten rules, In drafting an opinion, members of the US Supreme Court were debating the proper spelling for the rule. (There is some debate – see “Spelling of his name” in Daniel M’Naghten, One Justice thought he had defeated his opponent’s argument on the spelling issue when he showed him that M’Naghten himself spelled it the way that Justice preferred. His opponent’s response? You guessed it – “you can’t rely on that! He was insane!”)

Much as I am happy dear old NU is getting a piece of the scintillating Supreme Court pie, every law school now seems to be trying to elbow into U.S. Supreme Court practice. The supply of lawyers hunting for work on that level also far exceeds demand. Wouldn’t it be more useful, at least to the type of practice that the vast majority of lawyers engage in, for law schools, particularly state university law schools (which NU is not) to help lawyers prepare to argue before their own state supreme courts? Mooting opportunities, starting with Georgetown, abound when a lawyer makes it to The Big Show. Why not have a similar program on a state level for the lawyers who don’t appear all the time in front of their state supreme court (or federal court of appeals) and could use the help?

I have no idea if Maine has the volume of appeals that would make this make sense, and certainly the Maine law school has other issues to tackle on its plate. But the only way to learn how to argue well is to argue a lot. With fewer cases filed, leading to fewer appeals, there are fewer opportunities for newbies to get a chance to argue anywhere, let alone the Law Court or First Circuit. Some type of program to help them practice when they do get such an appeal once they are lawyers and have left the moot court programs in their law schools behind could help address this conundrum.