My last entry discussed whether lawyers make a difference in the outcome of a case, using the oral argument in Perdue as a starting point for the discussion. The ruling in Perdue came down yesterday. http://www.supremecourt.gov/opinions/09pdf/08-970.pdf Basically, they split the baby – in theory a lodestar fee can be enhanced based on exceptional performance, but the factors they cited for this rare situation focused on economics (e.g. the doggedness of the litigation) versus any explanation of how a particularly fantabulous lawyer can make a difference substantively. The Court's reasoning makes sense in the context in which it was examining the question – deciding how much the losing governmental side should have to pay — although particularly nowadays I think the flipside may be more telling - while doggedness is important, particularly in civil rights cases, the lodestar is still an hourly based determination. Hence, shouldn't the court be looking at whether the lawyer completed tasks/achieved the objective in less time than one would expect? That's what clients are looking for – the sort of experience and expertise that can save them money through efficiency as well as increase their chances of prevailing.
In any event, the second module of the AAAL conference continued to focus on whether lawyering makes a difference, examining case studies of how individual lawyers changed the law. Because the conference was held in Phoenix, we heard from lawyers from the firm which handled Miranda, which was very interesting, and some other cases were used to show how specific lawyer choices probably affected the outcome of the decision. Chief Judge Rebecca White Berch of the Arizona Supreme Court and Judge Mary M. Schroeder of the Ninth Circuit echoed the opinions of the judges from the first session that the lawyers' identities can affect discretionary review. Judge Schroeder cited immigration law as one area in which the impact of good versus bad lawyering is evident, given the horrid representation some defendants are receiving.
Ex-Solicitor General and now Yale Professor Drew Days made an excellent point about how sea changes in the law are often pre-dated by some softening up by others, citing Solicitor General Philip Perlman's activities from 1947-52 as pointing the way toward Brown v. The Board of Education. Among other things, five years before Brown, Perlman filed a brief in Henderson v. U.S. arguing that Plessy v. Ferguson should be overturned.
Another speaker noted that because the appellate court tends to focus on the trial court's decision, this is another reason why it is helpful to have the appellate practitioner involved at the trial level, to help shape that decision with an eye toward potential appeal.
Finally, I will note that our lunchtime speaker was the inimitable Alex Kozinski, Chief Judge of the Ninth Circuit. He is always worth listening to (and not just for entertainment value). The points he made that I found interesting included the following.
1. dissents can be a good thing. Courts like unanimity (as do law students – it was so much easier studying the Warren court than the fractured courts thereafter). In individual decisions, however, dissents can serve to clarify the issues and sharpen the content of the majority decision.
2. wear the decision before you make it. CJ Kozinski clerked for Justice Kennedy, and he cited two lessons he learned from him. First, while ruminating on a pending case, Justice Kennedy would try wearing one side for a day, then the other side another day. This helped fully explore all the arguments. Second, he always told his clerks that the decision needed to be written in a way so that the losing attorney could explain to his client why he lost (other then presumably that the court didn't understand, etc.).
His tips for oral argument were consistent with other judges' views, but are always worth hearing: answer the question and don't avoid the elephant in the living room. There is no point in trying to artfully evade the hard issues, either in your brief or argument. He also noted that lawyers often concede more than they should, and they are not always good at perceiving the softball question. On the last point, knowing your judge can help – some ask these types of questions more often. Finally, he made the very good point, often not followed, that it is easier to lose a case at oral argument than to win it there, so if things are going your way SIT DOWN.
More to come on the next conference sessions.
