Appellate Tips from a US Supreme Court Clerk

Before he retired last year, Major General William K. Suter heard over 1700 arguments at the United States Supreme Court as that Court’s Clerk of Court. General Suter developed a Guide for Counsel that has practical tips on how to handle oral argument. Here are five:

William K. Suter

Major General William K. Suter

  • Prepare for oral argument like packing clothes for an ocean cruise. Lay out all the clothes you think you will need, then return half of them to the closest. From the arguments left, cull out a “cut to the chase” talk that you can give if you only have a few moments left after questioning.
  • Make sure that one of your briefs print in full any statute, regulation, or other document that your argument relies on. You want to be able to refer to the Justices to the text, and for them to have the text handy, during the argument
  • Do not read, attempt humor, make emotional pleas, or use jargon
  • Answer questions directly. Never stonewall, answer a question with a question, or interrupt a Justice when answering
  • Answer hypothetical questions on the facts of the hypothetical before you distinguish your case.

The tip that struck a chord is making the text of a statute, regulation, or other document handy for the Court.

I recently defended on appeal a trial court ruling which applied a governing statute. On appeal, the appellant did not mention the statute. No citation, no quote, no nothing.

In contrast, I cited to the statute in the first line of the respondent’s brief, quoted the stature as quickly as I could, and attached a copy of the statute as an addendum. The Court will have the governing text handy during oral argument, if it grants an oral argument.

How do you handle governing texts on appeal? Please leave a reply.

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