28 November 2007

Getting SCOTUS Attention

Do experienced Supreme Court advocates have a higher success rate at the certiorari stage? If so, why might that be?

They do. Roughly speaking they enjoy a 15 to 25 percent success rate and their petitions currently represent between 40 and 50 percent of the non-SG petitions before the Court, which is astoundingly high. I looked at the progression for several years since 1980, and it has steadily significantly increased from fewer than 6 percent in 1980 to approximately 44 percent in OT 06. So far this Term as of last Friday (11/23/07), they are responsible for 49.5 percent of the successful non-SG petitions. . . .

[T]he expert counsel know the kinds of things that will interest the Justices and they know how best to make their cases seem like they relate to those interests. This frequently requires dramatically recasting the legal arguments and policy implications raised by a case and abandoning wholesale arguments made below, sometimes aided by petitions for rehearing in the lower courts in an effort to place a new legal issue in the record. It also often requires creative characterizations of circuit conflicts by looking at a case from a variety of angles and several different degrees of generality. . . .

To persuade the Court that the legal issues presented are important, the expert Bar is especially effective at securing the filing of amicus briefs in support of review. . . . The experts know the filing of amicus briefs by certain kinds of entities (and counsel) are more likely to demonstrate to the Justices and the clerks that a case is important. And, no less important, the expert advocates have the professional connections and credibility necessary to get those briefs filed within the short time frames. My article both documents a dramatic increase in the number of such filings and confirms a previously-established statistical correlation between amicus filings and cert grants.

Another, related tactic often used by the better advocates is the prompt publication in national news media outlets of stories touting the importance of a case now pending on petition before the Court. Wall Street Journal op-eds are a favorite. . . . And these publications are timed to appear precisely when the Court is considering the petition.

Finally, although many clerks formally deny that the mere name of a well known Supreme Court advocate on a petition makes the clerk more likely to pay closer attention to the petition, many others in private interviews have confirmed the obvious that they do.

More at SCOTUS Blog.

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