- Skill Sharpener
Supreme Court Litigators Rely on Georgetown Law Program
by Erica Winter
Long after law school is over, the Bar exam vanquished, and a legal career well established, there are still some challenges that a lawyer would never face without rehearsal. Just like the old saying about Carnegie Hall, no one would go before the United States Supreme Court without practicing first.
One place many go for this rehearsal is Georgetown Law's Supreme Court Institute. The institute's Supreme Court Moot Court Program is close to the Supreme Court in more ways that one. Just a few bocks away from the pillared temple on First Street in Washington, DC, the moot court program allows lawyers to sharpen both their arguments and tactics.
A panel of five or six experts presides over a moot session at the institute. The pro bono panel—all of whom review the case briefs and prepare questions beforehand—is made up of former Supreme Court clerks, Georgetown Law professors, and lawyers who have extensive knowledge of the Court. The institute has a 13-member Outside Advisory Board, many of whom also serve on moot panels.
Donald B. Ayer, a member of the advisory board and a partner with Jones, Day, Reavis & Pogue, became involved with the institute and the moot court program through the program's founder, Richard Lazarus. Lazarus, now a professor at Georgetown Law, and Ayer had been colleagues at the Solicitor General's office.
Ayer has a wide range of Supreme Court experience. He clerked for Justice William H. Rehnquist for the 1976 term. He was Deputy Solicitor General at the Department of Justice from 1986 to 1988, and was then Deputy Attorney General from 1989 to 1990. In all, Ayer has argued 16 cases before the Supreme Court.
Ayer has sat on Georgetown's moot court panels and also practiced cases before them. Panelists do not try to act like one specific Supreme Court justice, Ayer says, although if a certain question is raised, many in the room know which justice will raise that same issue at the actual Court. Mostly, however, Ayer tries to pinpoint problems in the arguments being made and question the lawyer on the facets of the case.
Roy T. Englert, Jr., a partner with Robbins, Russell, Englert, Orseck & Untereiner, also serves as a panelist and sits on the advisory board. Like the Court itself, panelists are generalists. Panels are not just comprised of specialists on the topic being heard. The panelists' goal is to "just analyze the case," he says.
Englert also works as an adjunct professor with Georgetown Law's Appellate Litigation Clinic. He worked in the Solicitor General's office from 1986 to 1989. In the 1990s, Englert argued several antitrust cases before the Supreme Court. He has argued 14 cases before the Court in all.
Mooting a case benefits lawyers in two ways, says Englert. Just being on their feet and speaking out the case is beneficial. Then, it's the interaction with the panel "justices," with people pushing on the case's weak points, that can help. The questioning refines the lawyer's thinking, sharpens his or her answers, and reveals unanticipated questions, says Englert.
At Georgetown's moot court program, panelists are often "very aggressive" in their questioning, says Ayer, helping to elicit "fast, persuasive answers to tough questions," from the practicing lawyers.
Ayer has argued before the Supreme Court, both for the Solicitor General's office in the 1980s and more recently in private practice with Jones Day. Last autumn, Ayer won his Supreme Court arguments in the case Koons Buick Pontiac GMC, Inc. v. Nigh. Before Ayer argued the case, however, he mooted it at Georgetown.
The moot sessions raise questions that are "really, really helpful," says Ayer. They "give you food for thought; (they) really give you something to think about," he says.
Ayer did make some changes on Koons because of the moot session. While not a complete 180-degree shift, he would "always" make changes after mooting a case, he says. An outside point of view is very important to have, says Ayer, especially when a lawyer has spent such a long and intense time on a specific case.
The Supreme Court puts an emphasis on the value of a short, clear statement, says Ayer. Lawyers must answer the Justices in one or two sentences. While the lawyer may know the issues inside and out and could present a good argument lasting for 10 minutes, at the Supreme Court, you may only have 30 seconds, says Ayer. With only that spec of time, the answer must be there, ready. This is why mooting is important.
Georgetown's moot program serves lawyers and allows students to see the inner workings of developing arguments for the Supreme Court, Ayer says.
Georgetown Law students who attend the moot Supreme Court case sessions can "see lawyers at work; they see the intellectual preparation for an argument at the highest level of our legal system," says Richard Cooper, a partner with Williams & Connolly who serves on panels for the moot court program and the advisory board.
The institute and the moot court program benefit the larger professional legal community by helping "improve the quality of arguments in the Supreme Court and thereby may contribute to the high quality of Supreme Court opinions," says Cooper, via an email interview.
Cooper taught food and drug law at Georgetown Law from 1987 to 1992 and in 1996. He was Chief Counsel at the USDA from 1977 to 1979. In 1977, he was in the Office of Energy Policy and Planning, Executive Office of the President. Cooper also clerked for Associate Justice William J. Brennan, Jr., in the Supreme Court from 1969 to 1970.
Students "see some of the kinds of choices advocates have to make in presenting arguments to an appellate court. They may also learn in some detail the state of the law as to the specific issues in the case that is the subject of the session they observe. It may also be beneficial for students to see their professors interact with practitioners. The students may also see a very good advocate and may learn from that advocate's approach, style, and method," says Cooper.
Another beneficiary of the program is the Court itself, says Ayer. Lawyers, like any other professionals, can only improve with practice. "The Court must appreciate that," says Ayer. For all involved, Ayer says, "it's really a terrific program."