Supreme Court practice

Houston-based Baker Botts LLP has been aggressively building a US Supreme Court practice group in its Washington office by hiring former clerks for Supreme Court Justices.  Bully for them.

I'm admitted to the bar of the US Supreme Court, having once sought a writ of certiorari (that was, predictably, denied).  Although I've done quite a few state and federal court appeals, the odds of actually arguing before the US Supreme Court, for me or anyone who's not in a practice group devoted to appellate litigation in a big firm, is vanishingly small.  I did, however, pass up an opportunity to argue a case in the Supreme Court, many years ago, back when I was at Baker Botts.

Having come to that firm out of a Fifth Circuit clerkship, for a couple or three years there I coordinated the firm's participation in pro bono appointed appeals in the Fifth Circuit.  The firm was extremely supportive — devoting many thousands of dollars in out-of-pocket expenses, and hundreds of thousands of dollars in opportunity costs from lost billable hours.  The unwritten but highly symbiotic  understanding was that the judges of the Fifth Circuit would appoint lawyers from firms like Baker Botts on more challenging cases in which their briefing and argument skills would be genuinely useful to the court; and in return, in addition to performing worthwhile pro bono work, our young lawyers got first-chair responsibility in writing the appellate briefs and, on occasion, arguing those appeals, and perhaps also handling evidentiary hearings on remand to the district court.

On one particular Fifth Circuit appeal for which we were asked to provide a court-appointed lawyer, I assigned the case to a brand new lawyer who'd eagerly volunteered, but whose bar scores hadn't yet come in.  He did all the work and wrote a first-rate brief, but since he wasn't yet licensed when it was due to be filed, I of course had to sign off on it.  By the time the case was scheduled for oral argument in the Fifth Circuit, however, he'd been duly sworn in, so he did the oral argument, and won.  To our surprise, the Texas AG's office petitioned for a writ of certiorari (seeking discretionary review) from the US Supreme Court — and to our even greater surprise, cert was granted and oral argument scheduled!  And my name was still on the case as lead counsel of record.

Oh, the temptation!  How easy it would have been to pull rank and grab the case, just to get a chance to argue in the Supreme Court.  But it would have been wrong — a selfish decision, unfair to the junior lawyer who'd written the brief and done the Fifth Circuit oral argument, and unfair to the client (who was entitled to representation by the most knowledgeable lawyer).   

So it was that my young colleague, within his first year and a half as a lawyer, argued before the US Supreme Court.  (He had to seek, and was granted, a waiver of the usual years-in-practice requirement for membership in the Supreme Court bar.)

Several months after the argument, we got the results — which were anticlimactic.  In a fairly rare type of result, the Supreme Court decided after it heard the oral argument that the case really wasn't that big a deal — not worth its time — and dismissed the previously granted writ of certiorari as having been "improvidently granted."  I consoled my colleague by telling him that this was actually the most convincing possible victory — he'd obviously completely convinced the four or more Justices who must have voted to grant the writ originally that the Fifth Circuit opinion was correct and ought not be disturbed, much less reversed.  He, however, was nevertheless personally disappointed — he wanted his name in the books on a full Supreme Court opinion, for obvious reasons.  Arguing in the Supreme Court is like pitching in the World Series, and he felt like his game had been rained out.