IN THE SUPREME COURT OF THE UNITED STATES

Standing Order on Procedure

November 21, 2016

Title I: Structure of Oral Arguments

Court shall convene at 9:30 a.m., Wednesday, December14, 2016, at the Supreme Court of the United States, RDB 1009.

Title II: Roles

2.1 Role of Litigants

Each party shall have eleven (11) minutes to argue, with no rebuttal. Litigants should be dressed and comport themselves appropriately for an appellate argument. Litigants should follow the procedural requirements of an appellate argument. Litigants should be prepared not only to present a structured argument, but also to answer questions from the Bench. This requires a familiarity not only with the case at hand, but also with the broad structure of the doctrinal area at issue in the case and with how that doctrine should apply to different cases and factual situations.

Litigants should be prepared to argue law, facts, policy, theory, structure, and logic. Litigants must argue within existing doctrine and rules, although they are free to argue to the Supreme Court for the rejection, modification, or overturning of some doctrine. Such an argument must make clear that the litigant understands current law, the theoretical and legal foundation for current law, the problems with the current law, and the theoretical and legal foundation for a different rule of law.

Evaluation will be based on the quality of the argument, including the quality of the presentation. Of particular grading interest is the extent to which the argument reveals an understanding of, and engagement with, the law of federal courts.

2.2 Role of the Justices

The Court shall consist of three Justices—two students and Professor Wasserman. The Respondent position in one case will be heard by the class sitting en banc.

All Justices should be prepared and ready to ask questions of the litigants. Justices similarly should be prepared to question attorneys about law, facts, policy, theory, structure, and logic. Questions should reveal a familiarity with the case on review and the overall doctrinal area. Avoid rote or pointless questions.

Evaluation will be based on the quality and quantity of the questions. Of particular grading interest is the extent to which questions reveal an understanding of, and engagement with, the law of Federal Courts.

Title III: Preparation

3.1 Guide to Preparation

In preparing for the arguments as both lawyer and justice, students must read the court of appeals opinion being reviewed and the key cases cited in it. Several cases have concurring or dissenting opinions. Students also should read the class materials on that particular area of the course to understand how the particular case fits into the doctrinal framework. Outside research will be necessary and beneficial. Students may look at the briefs filed in the courts of appeals and any cert petitions, some of which are available on Westlaw.

I will post on the Blog the audio from some of the better arguments from last year; this will give you a sense of what the arguments (as both attorney and justice) should sound like.

3.2 Case Details

Most of the cases are fact-intensive, which leaves room for both sides to form arguments and to argue for or against affirming the lower court. Dissenting and concurring opinions, where available, reveal arguments for both sides of the case. Outside research can focus on circuit splits and decisions by other courts of appeals, which may be useful to petitioners in formulating their arguments as to why the lower court was wrong. Certiorari actually has been granted in several cases; you are free to look at the briefs and other filings in the Supreme Court.

Attorneys and Justices remain free to argue or suggest that the problem with the decision below is a problem with the broader Supreme Court precedent and that the doctrine should be changed. But such arguments must reflect an understanding of current law and put forward sound legal and theoretical reasons for changing that law.

3.3 Presentation: Chief Justice

1) The Chief Justice shall call a new case as follows:

Our next case is No. ______, [Party] v. [Party]. [Mr. or Ms. ___], you may proceed.

2) Arguments shall last for eleven minutes, with no rebuttal. The Court shall keep time and warnings shall be given at 5, 3, and 1 minute. The Chief Justice has discretion to permit an attorney to go beyond her appointed time to complete an answer to a question.

3) At the end of the petitioner’s case, the Chief Justice shall say the following:

Thank you, [Mr. or Ms. ____].

[Wait for Counsel to reach podium]

[/Mr. or Ms. ____], you may proceed.

4) At the end of the respondent’s case, the Chief Justice shall say the following:

Thank you, [Mr. or Ms. ____]. The case is submitted.

3.4Presentation: Parties

Parties must begin the argument as follows:

Mister/Madame Chief Justice, and may it please the Court.

Arguments should follow the formalities and rules of real argument. There is no need to introduce yourself or the party you represent; the Court knows. Get up there and make your argument.

Be prepared to have a conversation with the Justices, rather than to make a prepared and uninterrupted speech.

Title IV: Grading

Oral argument is worth twenty-five (25) points towards your final grade. Twenty points are based on advocate arguments and five pointsare based on performance on the Bench.