John Roberts's Tips on Appellate Advocacy
Chief Justice John Roberts Jr. once told an interviewer, "I have yet to put down a brief and say, 'I wish that had been longer.'" His comment is one of many bits of advice, direct and indirect, that can be gleaned from Roberts's years of writing as well as his public comments about the craft of appellate advocacy. Roberts's first recommendation to litigators would likely be to read the classic 1940 ABA Journal article by former solicitor general John W. Davis, "The Argument of an Appeal." When giving advice on how to win a case, Roberts often invokes Davis's rules, which include: "Always go for the jugular vein," "Rejoice when the court asks questions," "Know your record from cover to cover," and the ever-popular "Sit down." Roberts's own rules include the following advice:
"If you believe the result you seek is compelled by a recent Supreme Court decision, ignore all advice about how to structure the perfect argument; begin and end with that controlling decision." —"Thoughts on Presenting an Effective Oral Argument," 1997, School Law in Review.
"When I was preparing for Supreme Court arguments, I always worked very hard on the first sentence, trying to put in it my main point and any key facts, because I appreciated that the first sentence might well be the only complete one I got out in the course of the argument." —"Oral Advocacy and the Re-Emergence of a Supreme Court Bar," 2005, Journal of Supreme Court History.
[Read more about Roberts's career as an appellate advocate.]
A Supreme Court advocate "needs to have something of the medieval stonemason about him. Those masons—the ones who built the great cathedrals—would spend months meticulously carving the gargoyles high up in the cathedral, gargoyles that when the cathedral was completed could not even be seen from the ground below. The advocate here must meticulously prepare, analyze, and rehearse answers to hundreds of questions, questions that in all likelihood will never be asked by the court. The medieval stonemasons did what they did because, it was said, they were carving for the eye of God. A higher purpose informed their craft. The advocate who stands before the Supreme Court, whether a veteran or novice, also needs to infuse his craft with a higher purpose." —"Oral Advocacy and the Re-emergence of a Supreme Court Bar," 2005, Journal of Supreme Court History.
Before oral argument, "sit down with either a layperson or a colleague in your firm or office who has nothing to do with the case. A nonlitigator is what I would look for. And just drop the brief on them and say, 'Look, can you spend a half hour and read this brief and tell me what you think?' . . . And if that person can't come back to you after reading through it once and answer two questions—what is this case about, and why should I win—you need to go back and start over." —Bryan Garner Interview on Legal Writing, 2007, cited in The Scribes Journal of Legal Writing, 2010.