John Roberts is best known for being Chief Justice of the United States Supreme Court. But before he was a judge, Roberts was widely known as an excellent lawyer. A recent article in The American Lawyer discussed Roberts’ career as an advocate. A few takeaways for effective appellate advocacy:
1. Fresh perspective can make a difference: Especially when you are new to the case on appeal, take a fresh look at the case from top to bottom. In particular, take a close look at any jurisdictional issues, many of which can be raised at any time. Roberts won a 1997 case by spotting a jurisdictional defect that was raised for the first time at the Supreme Court.
2. Interesting writing is important: In a 2003 brief, Roberts spent a few sentences of his brief on an anecdote about how the mine at the center of the litigation got its name. The story had nothing to do with the legal issues, but Roberts later explained that the anecdote made for an interesting read. Interesting reading invests the reader in the outcome of the story.
3. Context matters: Although the appellate litigator is generally stuck with the record developed below, it may not be enough to know the record cold. Roberts went to great lengths to make sure he understood the factual context of the case. He often insisted on visiting the location where the dispute arose.
4. Prepare for questions: Roberts would prepare hundreds of index cards with every question that he could think of, and then shuffle them up so that he could practice transitioning seamlessly from topic to topic. Roberts was also known for doing up to 10 moot courts, and made it a point to invite people who would be hostile to his arguments as well as those who were unfamiliar with the area of law.
5. Listen carefully: Preparation is crucial, but a carefully scripted argument is usually a bad idea. Listen to the court’s discussion to find out what is important to the judges hearing the case. When he was the appellee, Roberts preferred to listen to his adversary (and the court), and pick up on whatever issue seemed to concern them the most.