Question (I almost said “quaere” but then I remembered that I am on the Plain English Committee of the PA Bar Association): Is there a trend toward getting the SCOTUS maven in at an earlier stage?

But when you hire a specialist and get the result you wanted, there’s a feeling of satisfaction that you left nothing to chance.

An experienced “Supreme Court specialist” may be better at identifying particular issues in a case that will cause the Court to grant cert. However, the experienced attorney who actually litigated the case in the lower courts may be in a better position to brief and argue a case once the Court grants cert.

In most cases, the litigator will understand the facts and the law of the case, will have argued the consitutional or federal issues in the lower courts, and will treat the opportunity to argue before the Court very, very seriously. Advocates who will have the Court’s ear only one time are more likely to awake slumbering Justices.

The Chief and the other Justices may listen to the novice more closely, if only out of curiosity. They may gain insight into world that Supreme Court specialists have only seen through briefs.

In any event, arguing a complex and difficult constitutional case to an overworked Superior Court Judge, without a Clerk, is much more of a challenge than arguing a case before nine very well prepared members of the Court.

I agree with you that if specialization actually benefits clients significantly, that’s more important that allowing non-elite lawyers to realize their dream of arguing before the Court. But I am not convinced that such specialization does benefit clients significantly; my bet is it probably confers a marginal benefit, based on the same grounds that appellate specialization does, i.e., you get someone whose view of the record is not based on trying the case, and who has a greater understanding of the sorts of arguments that can win or lose before the Court. But the “sales pitch” of the firms that do a lot of Supreme Court practice– i.e., that you have a better chance of winning when your case is argued by a former clerk who appears before the justices all the time– seems quite questionable to me. Further, Novice’s point is correct to– it probably costs more, especially if one doesn’t live in New York or Washington, to hire a Supreme Court specialist.

I also think ohwilleke hits another point right on the mark– oral argument is the FUN part of Supreme Court practice. It’s the part that gets you written up in the press, and the part that allows you to match wits with Scalias and Breyers. But it is probably the least important part of the process– 90 percent of cases are a fait accompli before oral argument. And many times the petition for cert.– by far the most important step in a Supreme Court appeal because of the long odds it faces– is written by the counsel who handled the case at the appellate level, with the Supreme Court specialist swooping in after the cert. petition is granted to handle the merits briefing and argument.

So I stand by my statement: I think it is, on balance, a pretty bad thing that we have this elite club that handles so many private party cases before the Supreme Court.

The real art of U.S. Supeme Court practice, so far as I can tell, is getting petitons for certiorari granted. With under 90 argued cases every year and over 5,000 petitions, this is clearly the greatest hurdle, particularly if you don’t have the good fortune of being in the U.S. Solicitor General’s office.

The next most important matter, it would seem, is excellent brief writing (in which case one would want to look at who is signing the briefs, as oppose to arguing).

Oral argument is, arguably, less important in the U.S. Supreme Court than in any other appellate court in the nation, even though it is more dramatic. No other court of which I am aware hears fewer arguments on the merits each year. Very few courts have anything approaching the talented ranks of clerks found in the U.S. Supreme Court to do whatever grunt work needs to be done and dig beyond the party’s claims in their briefs, and likewise, few courts have the privilege of receiving briefs of the quality that is the norm in Supreme Court practice.

As analysis of Supreme Court practice using political models and using analysis of questioning at oral arguments indicates, most justices are strongly leaning one way or the other by the time oral arguments are conducted. And examples of rather shoddy performances at oral argument (the state’s attorney in the recent Oregon assisted suicide drug case comes to mind) that do not prevent its advocates from losing their cases again affirms this general tendency.

Their specialty I think matters less at oral argument and more at actually getting the Supreme Court to hear the case. And possibly, in close cases, figuring out whose vote is in play (John Roberts apparently was very good at this latter task).

It is important to recognize that Supreme Court practice is inherently different than any other practice — trial or intermediate appellate. The Supreme Court is not bound by precedent to the same extent as the lower courts (except for its own conceptions of stare decisis). And given the Court’s criteria for selecting cases — i.e., resolving circuit splits and conflicting interpretations of federal law — the arguments are likely to turn on conflicting legal standards, not one’s mastery of the record.

That is not to say that a generalist cannot prevail at the Court. Nor do I wish to imply that generalists are incapable of outperforming seasoned Supreme Court litigators. The Supreme Court (Marble Temple aside) is still a court. And the skills of lawyering are translate quite readily across multiple fora. With these qualifications in mind, however, I think there is ample support for specialization.

Maybe it’s even a salutary step that a Supreme Court bar has returned. Tom’s post tomorrow might address the pros and cons of his findings. Nevertheless, I’m not yet convinced. The last thing that Washington, D.C. needs is another elite, insular group fighting it out among its members for the cream of the legal crop and the power and prestige that come with such success.

The premise of a Supreme Court specialist practice is presumably the same as that of any speciality. Someone who focuses on a particular field of law is likely to develop expertise that generalists don’t have. It’s the same reason why we have divorce lawyers, criminal defense lawyers, estate lawyers, intellectual property lawyers, and so forth.