SCOTUS spotlight: Deanne Maynard on ‘split-second decisions’ as an oral advocate
on Aug 31, 2020 at 5:05 pm
Deanne Maynard, co-chair of Morrison & Foerster’s Appellate and Supreme Court practice, has argued 14 cases before the Supreme Court since her first oral argument in 2004. On this week’s episode of SCOTUStalk, Amy Howe interviews Maynard on how she prepares to argue before the justices, how she pivots away from hostile questions, and why hypotheticals can be the toughest questions of all. Howe also takes Maynard back to her first oral argument — accompanied by live audio — and what went through her mind when Justice John Paul Stevens asked Maynard a question before she even made it up to the lectern.
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Full transcript below the jump.
[00:00:00] Oyez! Oyez! Oyez!
Amy Howe: [00:00:03] This is SCOTUStalk, a nonpartisan podcast about the Supreme Court for lawyers and non-lawyers alike, brought to you by SCOTUSblog.
AH: [00:00:13] Welcome to SCOTUStalk. I’m Amy Howe. Thanks for joining us. Today, we are continuing our series on Supreme Court advocacy and we are delighted to have as our guest, Deanne Maynard, who’s a partner at Morrison & Foerster and the co-chair of the firm’s Appellate and Supreme Court practice. Before joining Morrison & Foerster, Deanne was an assistant to the US solicitor general. She’s argued 14 cases before the justices dealing with everything from bankruptcy to Indian law. Deanne, thanks so much for joining us.
Deanne Maynard: [00:00:43] Thank you so much for having me, Amy. It’s my pleasure.
AH: [00:00:46] You’ve argued many times before the justices, but you’ve also argued more than 65 times in the courts of appeals. Do you approach arguing at the Supreme Court differently than when you’re in the courts of appeals?
DM: [00:00:59] Well, many things are the same, of course, but I think there are at least two key differences. The first is, in the Supreme Court, you you always know from the beginning, even before you start briefing, even before you do the cert process, who your panel’s going to be. So, you know, the identity of the decision makers, you know, throughout the entire time. And you can think about that as you frame your arguments, as you draft your briefs, when you’re reading the precedents and you’re looking back at old arguments about what the justices are concerned about and who’s concerned about what and when you’re trying to count to five, which is what you’re trying to do in the Supreme Court. In the courts of appeals, most of them you don’t know. Sometimes you don’t know. Like in the federal circuit, for instance, you don’t know until the very morning of oral argument, you know, basically an hour, maybe two hours notice, which three judges you’re going to have on your panel. And so you just you have to approach it, getting prepared differently. You have to approach the briefing differently. You have to brief for the entire court and that, you know, that is a difference. Secondly, I think in terms of the way you think about your case and the way you prepare for oral argument is different, because in the court of appeals, they’re much more bound by precedent. There’s much often and they’re more concerned about the facts of your case just deciding your case. And so you you it’s much more important to know the key cases that they may feel bound by, the facts of your case and the record and, you know, the fact that they may be willing to decide your case in your favor without issuing a precendential decision, for example. So they’re not always thinking about what rules is going to create, you know, how do we approach this case now?
DM: [00:02:49] Sometimes they are, of course, and sometimes, you know, and I think often you kind of know which kind of case you are. You’re in a case that’s…this is a fact specific case and I didn’t need to win my case. And a lot of times in the courts of appeals, you’re thinking about like what is the narrowest way we can win this case? This is all we need to win this case. In the Supreme Court, of course, you need to know your record, always, and you need to know all of the precedents. But, almost by definition, when the Supreme Court takes a case, there is no governing precedent, because if there was a direct, on point, you know, governing precedent as a general matter, it should be a summary reversal or not a case that they’re hearing on the merits. And so the justices are often thinking about what should the rule be? How will this play out? How do we write a precedent that lower court judges can apply to the next case? And they’re often very unconcerned with who wins your particular case. And, in many decisions, as you know, they don’t actually decide the case, but they issue the new rule of law or they pronounce how they decide the legal questions and remand for the lower courts to apply it to the facts of your case.
AH: [00:03:59] So you have argued your first case in 2004. Has your approach to arguing at the Supreme Court changed over time, either because of what you’ve learned as you have gone along or because the court has changed? I mean, the makeup of the court is different. Or both?
[00:04:19] I’ve definitely gotten better at predicting the kinds of questions that I’m going to get asked. And I feel like as a result, I’m often better prepared for the questions. So, and I do think that helps focus my preparation on the right kinds of questions and the right kinds of concerns and shoring up, you know, our position in important places to be more ready. I also am more comfortable now, you know, having done a number of arguments, I know my first argument, my one of my fears before my first argument was what if I stand at the podium and open my mouth and no sound comes out? You know, if I’m just, like, overwhelmed by the stress and I freeze? And I definitely don’t have that level of worry anymore, so I still do, you know, get nervous and I’m stressed by it.
DM: [00:05:18] And I think that it’s that fear of not knowing the answer or not being adequately prepared that, you know, drives one to get really ready because it’s a lot of work to get really ready. But I no longer worry that no sound will come out.
AH: [00:05:34] So tell us about a little bit more about your first argument. Sound did come out?
DM: [00:05:40] Sound did come out! One of my friends says at first it didn’t sound like me to him. But I have two arguments to share about. One is the about the argument itself. Which, the case involved Ohio’s prison system and the procedures that Ohio uses to place inmates in their highest security prison and whether or not those procedures comported with due process. And I was representing the United States as an amicus to Ohio, and I had not actually written the briefs in this case. The case I was supposed to argue as my first argument – it was one of those rare instances where the Supreme Court denies the United States’s request to participate at the argument. And so the office reshuffled the planning and I argued this case. So I was supporting the lawyer arguing for Ohio. And after, you know, and I had been given advice by, you know, experienced advocates in the office to get to the podium and settle my things on the podium and then take a deep breath when I was ready and look up and say, the traditional Mr. Chief Justice, and may it please the court, you know, so to get composed. Well, during the first 20 minutes of the argument, the court and the justices were probing really hard on what Ohio tells its prisoners before they trigger a potential move into the high security prison and weren’t entirely satisfied, I don’t think, with the responses. And I think the advocate for Ohio missed the fact that Justice Stevens asked him a question while he was trying to reserve time for rebuttal.
DM: [00:07:23] And so there was a question pending when he sat down. Which, as you know, you know, as an advocate yourself, is ideally, you would try not to leave a question pending.
[00:07:34] I was basically on my way to the podium.
[begin oral argument audio]
Chief Justice William Rehnquist: [00:07:38] Ms. Maynard, we’ll hear from you.
[end oral argument audio]
DM: [00:07:39] And Justice Stevens, who had asked the question, leans forward and says, “Ms. Maynard…”
[begin oral argument audio]
Justice John Paul Stevens: [00:07:45] Ms. Maynard, before you start, maybe you could answer the question I tried to ask at the end of his argument. Where in the record is the report?
[end oral argument audio]
DM: [00:07:51] And so, I haven’t gotten to the podium yet. I haven’t gotten my things settled. I haven’t taken my deep breath. And this I have this like split second. What do I do? Do I say, “Mr. Chief Justice, and may it please the court” or do I answer Justice Stevens? And I couldn’t recall, I mean, you know, this was this must have been like a microsecond in my brain. Right. But I didn’t know what to do etiquette wise.
DM: [00:08:15] But Justice Stevens, he had asked me a question, and so I opted for answer the question.
[begin oral argument audio]
DM: [00:08:22] JA-58 is the form. And if you look at that, you’ll see that it has a line that says…”You are being considered for transfer for the following reasons,” colon, and there’s a blank to be filled in.
[end oral argument audio]
DM: [00:08:37] And so I did know where in the record he could find that document. And I tried to succinctly say, you know, Yes, your Honor, it’s at JA-58, and here’s what it says and “Mr. Chief Justice and may it please the court.”
DM: [00:08:50] So when I got back to the office, the office was about split evenly on whether I had made the right choice. And, um, but I think in hindsight, for me, it was the right choice. Because, you know, Justice Stevens, I think, you know, wanted the answer to his question. I knew the answer to his question. I didn’t want to spend the first part of my argument talking about Ohio. I wanted to give my opening. And so by doing that, by answering Justice Stevens’ question, stopping…and and I saw Justice Breyer, I remember him picking up the book and, you know, looking in the joint appendix to find the documents. And so the justices were clearly looking at what I had said.
DM: [00:09:27] But then I was able to reset and then give the opening I had planned for, my, you know, for myself. So that was, so I was I’m happy in hindsight with how I did it. But…
AH: [00:09:37] Yeah, I mean, it was a little bit of Justice Stevens putting you on the spot there.
DM: [00:09:42] Well…
AH: [00:09:42] But I’m not going to ask you to to criticize Justice Stevens, but…no one should criticize Justice Stevens.
DM: [00:09:49] Well, well, I clerked for Justice Stevens, as you may know.
AH: [00:09:52] I know, exactly.
[00:09:52] So, I’ve warm, fond feelings for Justice Stevens.
AH: [00:09:57] I do as well.
DM: [00:09:57] But I have…I’m very happy that I knew the answer to the question.
AH: [00:10:04] There you go. There you go.
DM: [00:10:06] If I hadn’t known the answer to the question, it would have been a very, very poor start to my first argument.
AH: [00:10:14] But I’m certain you would have known the answer.
DM: [00:10:17] So…and the second memory, is more, of a, personal one, which is: I was eight months pregnant when I did my first argument and I had chosen to wear the traditional garb of the solicitor general’s office, the morning suit, to do my arguments before the court. When I was clerking, we used to call that, you know, “the credibility suit.”
DM: [00:10:43] The, you know, I know you know…but for those who were listening who don’t know – the morning suit is…like the kind of suit that traditionally a man would get married in in the morning. So it has sort of white and gray and black striped pants and a cutaway gray jacket, almost like a tuxedo. But it’s a long jacket that’s gray.
DM: [00:11:03] And I wore a black vest and uh…so Marshall Talkin, she wears the same, so, you know, I modeled it what I bought after what Marshall Talkin wears.
DM: [00:11:15] And, but I had purchased it before knowing that I was going to be pregnant. And so, by the time of my first argument, the pants that I had purchased no longer fit. And for, men who have rented tuxedos know it was those kind of rental pants where you can open the buckle and make the belt, like, bigger.
DM: [00:11:38] But, um, even the leeway allowed by the rental tuxedo pants I had bought did not…was not sufficient for my eighth month, um.
AH: [00:11:49] You were eight months pregnant.
DM: [00:11:49] Eighth month body. And so, I had to rent pants. And I still remember they were, they were square pants. So they were like 40 by 40, or something. 30 by 30. I don’t remember exactly, but I just thought it was so funny that I was like arguing in square pants.
AH: [00:12:10] That is a great story. So, you alluded to this a little bit, but walk us through your preparation for a Supreme Court oral argument. How many moots do you do? What else do you do in the month or weeks leading up to an oral argument?
DM: [00:12:27] So I think the sort of big picture approach is to start wide and then funnel to narrow, so that by the time of the argument, you know, you’re just really focused on the things that are most likely to happen and most likely to come up.
DM: [00:12:43] But at the beginning of my prep, I like to go back and read everything, making notes as I go. And then as I get closer and closer, you know, hone in to the ten most likely questions and the, you know, ten points I really want to make. And oftentimes those two things tend to merge into one in the same. The ten most important points are also likely to be the ten most important, the answers to the ten most important questions. So, so, so a lot of preparation is personal. You know, it’s like me and my desk and my books and my computer. But then, certainly,you know, as is as tradition of lawyers who have trained in the solicitor general’s office, I like to do real live-on moots, in role, for as long as the advocate, you know, the questioners have questions.
DM: [00:13:39] And so I like to do at least two for a Supreme Court argument. And I like the mooters who are the pretend justices to be people who…like me, know the kinds of questions that the justices are going to ask, you know, have done themselves arguments in the court, have seen arguments, done arguments, been to a lot of arguments. And they know what kinds of questions the justices ask, but — they have not been involved in helping me with the case so far.
DM: [00:14:07] So they are cold. So when they read the briefs, they see, you know, they’ll pick them up just like the justices and the law clerks will pick them up.
AH: [00:14:17] Right.
DM: [00:14:17] Not, having, like me, drunk the Kool-Aid already.
AH: [00:14:20] Right, right.
DM: [00:14:21] You know, [who don’t] already know why we’re right and why we should win, and then have them ask questions. And I don’t usually do it, with, you know, I don’t do it with…I know people do it differently. I don’t do with nine justices. I, you know, I find that if you have people who really know how the court asks questions, you know, you really only need three, three people, four people to grill you and then they that, you know, then they just all ask more questions than they would if they were, you know, really the justices.
And then I stay in role and I tell the people, of course, the people who have helped with the case and who are right there with me as the Kool-Aid drinkers, they you know, they’re there and listening and taking notes. And then I tell them, though, don’t help me. You know, don’t help me while I’m in role. That’s…the point of this is…to step in all the potholes, and learn where they are, and see what lines of questioning and what answers take me down some rabbit hole we’d really rather not be in.
DM: [00:15:23] And, so, don’t save me in the moot because I want to, like, fall on my face in the moot, not in the argument.
DM: [00:15:30] And, you know, sometimes that can be really tough for…clients and people…who’ve litigated the case and want to jump in and help you when it seems like you’re desperately flailing for the answer. But I think it’s really important to let those things play out in the moot and see how they go and then have as soon as…we usually do that, until, I mean, for much longer that time than I’ll have at the argument…an hour or more until the questions kind of peter out, right?
DM: [00:15:58] And, and then, you know, have a discussion section of a session after that. And that’s where everybody can tell me, “well, you really shouldn’t have said this” or “that’s not right” or I can get you that cite from the record. And that would be a better place to go with this question and really talk about…with the experience advocates, you know, “okay, that that you’re probing on this”, you know, “what’s your concern there?” “What do you think is my best response here?” “The three possibilities we’ve thought of…” You know, and chat about it and try to figure it out in advance. And I think, you know, if you do that well, then you, you know, the moot should be much worse than the real argument.
AH: [00:16:38] Yes, yes, indeed.
AH: [00:16:40] Do you have any traditions on the morning of the argument itself, eat at a certain place, listen to a certain song on the radio?
DM: [00:16:48] I know people have those…I don’t really, to be honest. I do… my one tradition which isn’t really, is more practical than anything else, which is…I get up like really early, like at the crack of dawn and get in my car and get all my things and get to the office. So in case something nightmarish happens, I can like, walk to the court if I have to.
AH: [00:17:07] That’s actually a great idea.
DM: [00:17:10] Um…and then once I get to the office, you know, it’s so early, there’s no one there and I do tend to then just sit with my own thoughts and, you know, review my key points and say out loud, my, you know, my introduction and the answers to the questions I think are most likely and just sort of run through a practice that way.
DM: [00:17:28] We do…have sort of more of a night before tradition, which started…when I was in the solicitor general’s office, my mom and dad would come. They came to I think almost every single one of my arguments when I was in the solicitor general’s office, which was really special. And so they would usually arrive the night before and stay with us. And my mom would always bring a chicken pie from this place in North Carolina that, you know, near our house and that I that I liked a lot. And so she would make that. So she would always make that, that was the traditional, like sort of, I mean, she, as she would say, she made it possible. She didn’t make it. You know, she went got it. And then, but she baked it!
DM: [00:18:08] And so then when when I would get home from my last day of prepping, you know, mom would have be in the kitchen, should have dinner all made, and we would sit down and eat it. And so um my mom died about six or seven years ago, but my husband still makes chicken pie often the night before.
AH: [00:18:23] Aw, that’s really nice…and now I’m hungry. That sounds really good. Talk about your opening statement. Do you memorize it? Sort of internalize it? It’s a little different now, you know, now that that advocates have, you know, whatever it is, two minutes, three minutes uninterrupted.
DM: [00:18:46] So I do memorize it. I try I think you’re internalizing it is a good way to put it. I think it’s memorizing and internalizing. But I try to do it in packets. So especially back in the day, as you say, when there wasn’t the preset amount of time, you know, 45 seconds was often the most you could hope to get out, maybe sometimes not even that.
DM: [00:19:08] And so it’s it was very important to front-load the thing that you most wanted to say, then the thing that you second most want to say and then the thing that you third most want to say. And then if, you know, if they let you go on for a little while, then you get it all out. But if they interrupt, you said the thing that you most want to say. So you didn’t want to spend any time spinning your wheels or clearing your throat or anything, because there you may only have 30 seconds before they jump in. And I think even, you know, obviously last term was an experiment of sorts. But even then, you know, sometimes the justices would would, you know, forget the new rule and jump in. My, my coach here, Joe Palmore…had an argument last year where, I believe it was Justice Sotomayor, started to ask him a question and then, and then remembered about the rule and stopped. And so he was able to finish his planned remarks. But I think it’s a word to the wise that maybe packets is still a good idea.
AH: [00:20:07] Yeah, it will be interesting to see how long it takes them to sort of break that habit. It was sort of a constant source of watching entertainment for the press corps who’s who’s going to mess up today.
DM: [00:20:21] But it’s understandable in mooting. I had the same instinct, which is as soon as the advocate would say something that I wanted to challenge, it’s really hard not to jump in, especially when you sort of trained up in this world…of challenging as soon as you hear something that sounds challengeable.
AH: [00:20:39] It’s hard to break, you know, literally, sort of a decade long habit. I mean, it’s going to take time. What do you take up to the lectern with you? Do you take a binder? Do you take a sheet? Do you take nothing at all?
DM: [00:20:53] I take a narrow binder and I always have. It’s what I, you know, first learned to do when I did my very first oral argument. And I still do that. I tend to use hard pieces of paper so that when you turn it, if you need to turn the page for some reason, it doesn’t make a sound in the microphone and it has, you know, I use those card stocks with the tabs on them. And so often I have different tabs. Maybe if a case has several different kinds of arguments.
DM: [00:21:23] Then, that way if I want to look at the notes for a particular argument, then to look down and grab that tab and turn to it without any delay or fuss…but generally it’s more of a crutch than something I actually use. It was the book that I was using as I got prepared and I refined and refined and refined it, and it’s the book that I look at when I get to the office early that morning to refresh, but it’s very rare that I actually use it much at the podium. The one thing that I do tend to use it for…on the left-hand side of the first page, I have all the most important record cites. Or if it’s a case where I think I might want to quote a snippet of a case, I might have that and the cite, so things that probably I’ve committed to memory. But sometimes, in the moment, you know, and also if you’re going to give them a cite, you want to be really sure you’re doing the right thing. But almost as important as the binder and I think more important than the binder for actual use of the argument — and what I use more than the binder — is a tabbed version of the joint appendix and the APP pages from the brief with the statute in it. And, especially in a really complex statutory construction case…where, if you’re making a point and you want them to look at it while you’re making it, it’s really helpful to give them the page.
DM: [00:22:51] And, you know, you don’t have to say to them, “if you’ll just” — well, it may be helpful now that they can’t see you — but just reaching over to the table next to you and picking up, you know, the brief that has the statutory appendix in it and saying, you know, “A8 of our brief, there’s this language and if I can walk you through it?” Oftentimes, if the advocate picks up the joint appendix or picks up a brief and looks at it…the justices will too just because they’re following along. Right? And and then if you have a really complicated — and I have argued a number of cases with really reticulated statutory schemes where my argument’s very complicated and related to how this provision relates to that provision and I think it’s very important to understand the interlocking nature and the whole — it is useful to, you know, really have handy those pages, tabbed, and where you want to point them to while you’re discussing your points about the statute.
AH: [00:23:56] And…I’ve seen this done. And it also seems like they’ll really listen while you’re doing that.
DM: [00:24:04] Well, hopefully. Right?
AH: [00:24:07] As opposed to interrupting, you know, they’ll sort of give you some time to walk through this.
DM: [00:24:12] I think sometimes in the cases with very complicated statutory schemes, they they are also struggling with how to read the statute and they want to hear your explanation of it. And it is effective, I think, to have a visual aid to walk them through it.
AH: [00:24:25] So let’s talk a little bit about, sort of, argument strategy, for lack of a better word. What do you do…the Supreme Court’s known as a hot bench. You’re, you know, up at the lectern and you’ve got somebody who’s really peppering you with questions, but at the same time, you know that his or her vote probably isn’t in play. How do you deal with it with that situation?
DM: [00:24:51] Well, I think it’s important to remember that everyone’s still listening to what you’re saying. And so even if you’re looking at one justice who you think you’re unlikely to…get, but you know that what you’re saying still might persuade others, it doesn’t really matter that you’re answering the questions of someone you think you’re really unlikely to get as long as everyone else is still, you know, listening, which they, of course, are. And so it’s important to keep in mind that, you know, the others may be open and they may have the same concerns or they may want to know…they may already be inclined to vote with you, but they want to know how to write the opinion that response to this justice’s concerns. And so you’re…the one who’s given the most thought, hopefully, to how to answer those, and why it’s not a problem for your case and what the responses are.
DM: [00:25:45] And so I think it is best to try to answer. Now, sometimes if you feel like, well, I’ve …tried the same point several times, and it’s not…then I think you do want to try to pivot away. And one of the things that you practice in running through your points in preparation is, you know, well, I might get this hostile question. This is my crisp answer to that question and I’m going to pivot to this other point that I want to make. I mean, another strategy is to try to invoke another justice’s name: “This is the answer, but if I could, I’d like to go back to what justice so-and-so asked earlier and often if if one does that, they’ll allow you to move away.
AH: [00:26:35] Yeah. And that actually…especially the first part of…your answer sets up a related question, which is, you know, when you’ve got a hot bench and you’re sort of responding to the questions, how do you get out your affirmative case? And so we’re going to play an excerpt from your argument on behalf of the federal government in Watson v. United States. This was a case about whether or not someone who trades drugs for a gun uses the gun for purposes of a statute that would add five years to his sentence. And so, it looked like you did a really nice job shifting to try to make your case. So, I’m going to play an excerpt. Here’s Deanne Maynard, then an assistant to the solicitor general in Watson v. United States.
[begin oral argument audio]
Justice Antonin Scalia: [00:27:26] They refer to crimes in which there’s been a receipt, but there’s also been a conveyance. Why do you focus on the receiver rather than the conveyor?
DM: [00:27:35] Because our reading, Justice Scalia, gives full effect to the provisions that Congress has carefully chosen to place in D3. And the and the petitioner’s reading does not.
JAS: [00:27:43] What are they?
DM: [00:27:44] And if I can…can explain it? In D1, it’s on page 8A our brief, D1 is set forth. In 924-D1, Congress provided two principal ways in which the government can forfeit firearms. The first is, if an offense is completed, the government can forfeit a firearm that is involved in or used in that offense.
JAS: [00:28:08] Involved in? That broadens that enormously, doesn’t it?
DM: [00:28:11] Yes, it does, Your Honor, but that actually strengthens my point.
JAS: [00:28:15] But cuts the other way. Congress knows how to say “involved in” if it wants to reach that broadly. And it didn’t do it under the provision in which Mr…pursuant to which Mr. Watson was indicted.
DM: [00:28:26] Well, yes, Your Honor. But, if you allow me, to continue on…further on in D1, Congress used a narrow subset of crimes, some of which include receipt crimes, where it only used the word “use”. And that’s the logic of this court’s decision in Smith. And it applies equally here. Further down in D1, Congress allowed the government to forfeit crimes intended to be used in certain, very specific listed crimes. And, in other words, to forfeit the firearms before the um…the crime actually is committed. Some of those crimes include receipt crimes include the very receipt crimes listed by this court in Smith. And so given that Congress believed that the firearms intended to be used in purely receipt crimes were ultimately going to be used by the receipt, Congress employed the term here very broadly, including to receive the firearms.
[end oral argument audio]
AH: [00:29:21] So talk a little bit about what you did in this case, and sort of a little bit more about sort of techniques for making your affirmative case rather than playing defense, so to speak.
DM: [00:29:32] In that clip that you played, what I tried to do was say, answer the question, but if you’d let me explain it, you’d let me explain my answer, because it was a complicated statutory scheme again, like I was referencing earlier. And I had points that I wanted to make that related to that piece of the of the statute. But I needed to walk through it to make it clear. And so I think sometimes in responding to hostile questions, you can say, “I want I want to answer that question, but if you’d let me take a step back first?” or “I’m gonna answer, but I’d like to take a running start.” And oftentimes then they will let you explain.
AH: [00:30:12] Right. They just want to know that it’s coming. What kind of questions are the hardest to answer?
DM: [00:30:18] I think hypotheticals are the hardest to answer.
AH: [00:30:21] Justice Breyer’s hypotheticals…
DM: [00:30:25] So, and I…in some cases, you know in advance, they just lend themselves to hypotheticals and you expect that this is a case where it’s going to be all about hypotheticals. And especially in that situation, I ask my mooters in advance, “please think of some hypotheticals to spring on me at the moot.” Often you won’t get the exact same hypothetical one as mooters asks, but the principles that you’ve thought out in your head will still work with any hypothetical. And, in particular, you need to know in advance: “What’s the rule my client needs? “What is, where do I have to, like, stand my ground no matter what?” Because we can’t give in to this or that hypothetical, because we need that. And that changes depending on the case and it changes depending on the client.
DM: [00:31:11] Some clients, this is their only case like this. They just want to win this case. They don’t need a broad rule. They need a really narrow rule. And you all you have to defend is winning this case. Other clients – this isn’t their only case like this. And they have many cases like this, some of which may have different facts, and you can’t give up their future case. And so you have to hold a broader role. And that’s, I think, a really important thing for advocates to work out with their clients during the preparation in advance so that, you know, at the podium with confidence…what you can give up and what you can’t.
AH: [00:31:50] Yes. Yes. So when you’re the petitioner, you get a rebuttal, which is usually somewhere around three to five minutes, mostly, if you’re lucky, uninterrupted time to sort of wrap things up and state your case one last time. I’m going to play a minute or so from your rebuttal in Sandoz v. Amgen involving the interpretation of — here’s one of your complicated statutory schemes – Biologics Price Competition and Innovation Act. Here’s Deanne Maynard of Morrison & Foerster, representing Sandoz in Sandoz v. Amgen.
[begin oral argument audio]
DM: [00:32:24] Thank you, Your Honor. There can be no doubt that the judgment that we’ve petitioned on is a federal judgment that the federal circuit issued a federal injunction and dismissed their state law claims. Two: the statute Congress, when it wanted to provide for an injunctive relief of the L procedures, it did so. It provided, for it, in only one instance, violations of the confidentiality provisions in L1H and significantly, that’s also the only provision that Congress called a failure to do something in L1, a violation. Yet Amgen wants you to read the statute and to read those…the rest of the provisions as implicitly entitling them to an injunction that Congress chose not to provide. And instead they want to call the remedies Congress did provide, as the backup. I…that’s a very odd way to read the statute. The rights here are patent rights. The remedies they were given were patent remedies and they’re forceful. They gave them artificial infringement actions in the case where you participated in exchange and in the case where you don’t…
[end oral argument audio]
AH: [00:33:26] So what…what were you trying to do here and what do you generally try to…accomplish in your rebuttal?
DM: [00:33:34] Well, I think it’s…it’s one in the same. Which is, it’s really important to remember, first and foremost, it’s a rebuttal, right? So it needs to relate to what’s happened since you sat down.
DM: [00:33:47] What you’re trying to do is respond to the arguments that the respondent’s counsel has made or the questions respondent’s counsel’s been asked, to hit your most important points. And it has to be really crisp, and it has to be concise and it has to be only the most important things that have happened since you sat down.
AH: [00:34:08] What advice would you give to someone who is arguing before the court for the first time?
DM: [00:34:14] Listen to previous arguments before the court. And if you can, listen to the arguments in cases, you know, in and around what you’re gonna…what you’re arguing about. Because you’ll get a really good sense of the kinds of questions you might get. Also, maybe some ideas about the answers you should give, depending on how close the case is to your case. And you’ll also hear different styles of advocates because there’s more than one way to be a stellar Supreme Court advocate. There’s…the advocates have different styles and you can listen and try to pick and choose. You know, if you’re arguing the Supreme Court, chances are you are an experienced advocate already, elsewhere, and you have your own style already. And you should go with your style. You should be yourself, learn your case, go in, be confident. And I think, right before you start, take a deep breath and don’t forget to enjoy it. It’s an incredible professional experience and a privilege.
AH: [00:35:12] Deanne Maynard, thanks so much for joining us.
DM: [00:35:14] Thank you so much for having me, Amy. I appreciate it.
AH: [00:35:16] That’s another episode of SCOTUStalk. Thanks for joining us. Thanks to Casetext, our sponsor, and to our production team: Katie Barlow, Katie Bart, Kal Golde and James Romoser.