Monthly Archives: June 2012

How much do oral arguments matter?

Much has been said in the wake of the US Supreme Court’s decision today upholding (for the most part) President Obama’s health care overhaul, the Affordable Care Act. I don’t have a lot to add to the substantive analysis being done (though if you’re interested, SCOTUSblog has a whole host of coverage).

What I found interesting as an appellate practitioner was how this case provided the opportunity to emphasize the old adage that oral arguments rarely make that much difference to the eventual decision and can often be a poor predictor of how a case will come out.

The Wall Street Journal’s law blog touches on this topic today:

Thursday’s ruling on the health-care law proved, once again, that oral arguments can be a weak predictor of outcome.

In the ruling today, a divided court upheld the individual mandate as a tax, accepting the Obama administration’s backup argument. But at oral arguments, that issue — whether penalizing people for not buying health insurance fell within Congress’s taxing power– had a low profile during the March arguments.

The WSJ law blog fails to ask the bigger question, though — why do oral arguments rarely make much difference?

I suspect at least part of the answer to this question lies in how courts prepare for oral arguments. In general (though not every court works exactly this way), long before oral argument, a judge’s chambers is assigned the case. That chambers (the clerks in conjunction with the judge) reads all the briefs, does their own independent research, and then drafts a memo to all the other chambers discussing and analyzing the procedure of the case, each sides’ arguments, the pertinent case law, and makes a recommendation as to how the case should turn out. Then, all the other chambers review that memo in conjunction with the briefs and the pertinent cases. If some judges do not agree with the recommended outcome in the memo, they can write their own memo explaining their view of the case. There can also be informal discussions between judges. In some courts, like Washington’s Division 1 Court of Appeals, the judges will even meet before oral argument to talk about the case, their thoughts, and questions, though they don’t technically vote.

In short, a lot of behind the scenes work is done on a case before oral arguments even begin. And therefore most judges have an idea of how they think the case should come out before oral arguments even begin. So it’s the rare oral argument that actually changes a judge’s mind about the outcome.

Additionally, at oral argument, the judges are frequently responding to the arguments the lawyers’ make. If the lawyers at oral argument don’t focus on the issue the judges find dispositive, it may be misleading to rely on the questions and attitudes of the judges toward those arguments.

We probably won’t ever know fully what happened in this case and why for a long time, if ever, despite the rumors circulating that Chief Justice Roberts switched his vote at the last minute.

All of this simply underscores an important practice tip: the briefs in an appeal are far more important than the oral arguments. That’s something always worth being reminded of.



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Filed under Appeals, US Supreme Court


I’ve been doing some clean up on the blog and wanted to call your attention to one thing. With all the press the US Supreme Court has received lately, I’ve added a link on the Blogroll to the go-to website for all things Supreme Court: Scotusblog. Scotusblog (SCOTUS is short for Supreme Court of the United States) is widely considered THE place to go for information about US Supreme Court cases and is consulted by many in the media, as well as the legal profession.

The blog, originally started by two appellate lawyers, now employs several people including Lyle Denniston, the dean of Supreme Court reporters, who’s been reporting for over 50 years. The blog also does a neat series called Plain English, breaking down cases so lay people can better understand them.

If you’re interested in any of the recent US Supreme Court cases, Scotusblog is the place to go.

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Filed under Legal websites, US Supreme Court

Lawyer solicitation of clients — ethics vs. morality

Lawyers are businesspeople. Trial lawyers may like to help people, but we also have to make money to stay in business, just like any other business. So marketing and advertising are important. But how far can lawyers go to solicit potential clients?

Awhile back, on one of the listservs I am a member of, there was some discussion about lawyers who read newspaper articles or obituaries and send letters to victims and their families soliciting business. Or lawyers who get their hands on police accident reports and send letters to the victims. There was a lot of disgust expressed about these kinds of tactics. But is this kind of solicitation actually prohibited?

Lawyers are governed by the Rules of Professional Conduct (RPC’s) which put limitations on things like lawyer advertising and client solicitation. For example, RPC 7.3 governs contact with prospective clients and generally prohibits direct or third person solicitation, whether in person, live telephone or real time electronic contact. On the other hand, written, recorded or electronic communication is allowed unless (1) the prospective client makes it known he/she does not want the solicitation, or (2) the solicitation is coercive or harassing. (I’m paraphrasing the rule because it’s a long one.)

Why do we prohibit in person, live direct communication, but not written communication? The thinking goes, our lawyer charms are harder to resist in person and an individual may just hire the first lawyer who speaks with her, whereas with written or recorded solicitation, a potential client has the time to make a reasoned decision about which lawyer to hire. It seems a little silly because the rule assumes we as lawyers are oh so powerful and lay people are powerless to resist us. But there is some truth to underlying rationale because it’s much easier to think through a decision when you aren’t faced with someone trying to convince you to hire them.

As you may have guessed from the rule, though, sending a letter to a victim of a car crash who’s name and contact information were pulled from a publically available police report is fully within the bounds of the rule (as long as the victim hasn’t already told the lawyer she isn’t interested in that contact). I think the more important issue, however, is not whether this conduct is allowed, but whether lawyers should engage in this kind of solicitation.

We as trial lawyers already have a bad reputation as “ambulance chasers” who will do just about anything for the almighty dollar. We have this reputation, in part, because there are lawyers willing to do just about anything to get business in the door. And these kinds of tactics — soliciting accident victims out of the blue — hurts our reputation more. I would guess that receiving a letter like that for some probably just adds insult to injury for those accident victims who probably feel like their privacy has been invaded.

Yet, there are lawyers who use these tactics. And I’m guessing they use them, at least in part, because they are successful.

These kinds of discussions about what kinds of solicitations are appropriate touches on broader philosophical differences. Do lawyers have any responsibility to the profession (after their responsibilities to their clients)? Or, do lawyers have only a responsibility to themselves (after their responsibilities to their clients)? I think how lawyers answer these questions will tell you a lot about the kind of person they are.

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Filed under Ethics rules, Lawyer conduct

My How Time Flies

It’s been 10 (!!) months since my last post, and I have no idea where the time went. Yikes! So I’ve decided to rededicate myself to the blog and hope to post weekly. I’ve also let go of the idea that I should keep the blog limited to only a couple topics. My head doesn’t really work that way, so I’ve decided to stop fighting my urge to post about other legally-related topics. You, dear reader, can expect a little more randomness.

So what’s on my radar? Well, it’s election season. And while the presidential election will naturally take up most of the headlines, there are other, under-the-radar races that have a big impact on the citizens of this great state. For example, there are 3 Washington Supreme Court elections, and there’s a good chance 2 of them will be decided in the primary in August. It’s hard to find good, reliable information about judges, and it’s hard for the general public to know what makes a good judge. So I plan to post my thoughts about what I look for in judicial candidates and my thoughts on some of the races.

Similarly, we will be electing an Insurance Commissioner and a new Attorney General this year. Those are important races for consumers because the Insurance Commissioner regulates insurance companies and penalizes them when they’ve broken the law. And the Attorney General enforces laws designed to protect consumers. I’ll have some thoughts on those candidates, as well.

On a completely different note, there are several insurance cases at the Washington Supreme Court that are noteworthy because of their impact on consumers. If my timing is good, I will hopefully be able to blog about the opinions.

Up next, though, is a post about lawyer ethics and client solicitation.

I have no doubt there will be other things that pop up, too. So here’s to being back in the blogging saddle!

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