Before Sports Betting Case, Supreme Court Litigator Explains Oral ArgumentsBy Brett Smiley | Published: November 27, 2017 at 7:45 am
Washington, D.C.-based attorney Glen D. Nager has argued before the United States Supreme Court bench 13 times over his distinguished career. He grew up there so to speak, having clerked for former Supreme Court (SCOTUS) justice Sandra Day O’Connor, when he learned what effective advocacy looks like — the kind that resonates and does not peeve members of the high court.
The Jones Day partner specializes in employment law; class action, antitrust and environmental cases, and high-stakes appellate litigation. He is highly respected among his peers and regarded as a brilliant litigator. In 2010, Nager took on the National Football League in a major antitrust case that reached the Supreme Court, where he won a favorable judgment for American Needle, Inc. Nager also served as President of the United States Golf Association (USGA) from 2012-2014 and as a member of the USGA Executive Committee from 2006-2014.
Put simply, Nager knows the ins-and-outs of effective oral advocacy, particularly in the Supreme Court before a bench of nine razor-sharp, inquisitive Justices. In a recent conversation with Mr. Nager, he explained how to prepare for argument, avoiding pitfalls, and how respectful conversation is key. His insights are informative and fascinating and speak to all Supreme Court cases, and give us plenty to look for when the sports betting case arguments begin (Christie v NCAA). (This interview has been edited lightly for brevity and clarity.)
Ahead of Supreme Court Sports Betting Case (Christie v NCAA), Veteran Supreme Court Litigator Glen D. Nager Explains Oral Argument Procedure, Style and Pitfalls
SportsHandle (SH): Can you explain in layman terms the difference procedurally, and in terms of the overall experience, arguing in the Supreme Court versus in the other appeals courts?
Glen D. Nager (GDN): So, the major differences arguing in the Supreme Court between arguing in courts of appeals is number one, you get more time because oral arguments in the Supreme Court are typically 30 minutes per side and in courts of appeals, there’s a wide range but the typical argument is 10 minutes or 15 minutes. Number two, you’re arguing to nine rather than to three [judges] so the dynamic and the number of people who can ask you questions and interrupt you is larger. So maintaining a message is more difficult.
Number three, to the extent that you’re arguing a controversial matter. The challenge of keeping the arguments focused on the issues that you think you have the best chance of persuading the majority to join with is more challenging because there’s more people to distract and finally, I would say, that at least in the current era, the Justices on the Supreme Court are about as smart and hardworking and talented as they’ve probably ever been in the history of the country to the extent that I understand the history of the Supreme Court and I think I have a pretty good handle on it.
SH: How does that change things for you during argument?
GDN: That has both opportunity and challenge associated with it. The opportunity is that you have an audience that has to handle a wide range of cases and challenging issues, most of which don’t have clear answers. It can be an opportunity to get to the part of peoples’ minds that engages in reasoning rather than intuition, which allows an advocate to have more influence on the decision making process. Because to the extent that people are thinking, it’s easier to get them to do things on the basis of argument rather than on the basis of instinct. Instincts you can’t control, arguments you can.
SH: Interesting point.
GDN: The challenge of course is to the extent you have a weakness in your case, they’re more likely to find it.
SH: You touched on this with respect to maintaining a message: Do you typically go in there with a mental checklist, or bullet points of items that you want to weave in?
GDN: Absolutely, yes. I go with three. No more than three. When I teach oral advocacy that’s what I instruct, to have your three points that you want to have as takeaways, work them into your introductory statements, and return to one of those three as a part of your response to every question. That’s how I teach oral advocacy. Most cases are amenable to that. Every case may have 30 different things in it but it’s not 30 different things that are going to be determinative.
It’s no more than three points, and you might have to answer questions about the other 27, and you may have to give lots of details and reasoning about the three, but the three thematic points maximum is what your case turns on. I don’t use notes when I argue. I just have that mental checklist of three things. If I know my case well enough, and I keep it that simple, I can answer every question and remember one of the three that I want to link it up with.
SH: Regarding the very first words you utter, do you typically script out the first sentence, maybe 90 seconds or more in case they let you go for a bit?
GDN: I typically script out the first 25 words and memorize that, and the reason for that is that you can pretty much bank on having everyone’s attention as to what you’re going to say for about that long. Those 25 words are the effort to get your three themes on the table right at the outset, and again it depends upon the case but sometimes they’ll let you go for five minutes without interrupting but this court, because of the preparation, the quality of their training, their IQ, this is a very active bench now and they come prepared to ask questions. You’re not gonna get to speak for very long so, what your game plan should be, in my personal opinion, is to use the time when you won’t get interrupted to state what you think the case turns on and you’ve got to do it pretty efficiently.
SH: Do you recall any particularly memorable bits of verbal sparring that you’ve had with any of the Justices over the 13 cases you’ve argued?
GDN: One that I remember was my first argument, which was in 1986, because I had clerked for Justice O’Connor. I was a government lawyer at the time at the Solicitor General’s office. The case was about whether or not the regulations that the Department of Health and Human Services had passed during the Reagan Administration, that counted personal injury awards or Workers Compensation awards as income in calculating whether or not an applicant of AFDC benefits was eligible for AFDC benefits, whether their income was too high. One of my co-clerks with Justice O’Connor had argued his first case the month before in a really boring case. He basically had almost spent his whole time arguing without getting a single question because the case was so boring. So, Justice O’Connor threw him this huge softball, which he answered very well and that was the end of it.
So, I had my first argument the next month and was sort of thinking, ‘Well, maybe I’ll get a softball.’ I got up and she did ask the first question but it was incredibly hostile and I answered it and then she asked again and I answered it a different way. This went on for like three minutes with her effectively asking the same questions in a very hostile tone and me answering it at which point, after she asked it again, and I gave yet another answer when Justice Scalia piped in and said, ‘Well, I’ve understood each of your four answers. I’m not sure why Justice O’Connor doesn’t.’ That one you might call sparring.
SH: Speaking of Justice O’Connor, was there anything you observed or learned during your clerkship that maybe made you think, ‘When I’m back here arguing, I’m going to remember that.’
GDN: Yes. The court and all of its Justices really appreciate lawyers who are well prepared and responsive, so that the lawyers who go up there and filibuster or demagogue or engage in scripted argument and commentary are ineffective. The lawyers who go up to have a genuine, straightforward conversation can be quite effective.
SH: Hence why you probably don’t want to bullet more than three points.
GDN: Correct. Even though it’s the Supreme Court of the United States and even though you’re nervous, and even though they deserve great respect, the effectiveness of your argument is to remember that the advocate has the advantage and there’s only one advocate. If you view each of the nine as an opportunity in a respectful conversation to answer their questions and use their questions as an opportunity to make your client’s case, you actually can control the courtroom. Because you will have their attention if you answer their questions, and if you do answer their questions, they will then listen to what you have to say. They will stop listening if you don’t answer their questions.
SH: You mentioned nerves. You obviously have a tremendous amount of experience there now. Did you feel quite nervous the first time? Do you still get a little bit of the pregame type of butterflies?
GDN: Absolutely, I mean not to the degree I did on my first one. I was 28 years old and didn’t sleep particularly well the night before. I sleep fine now, but of course. I mean the irony is because I clerked there and I knew the Justices then and now, I’m at the age where several of the Justices on the court are people who I’ve had professional relationships with and a few personal relationships with. Over time, I am much more relaxed in that court than I am in any other court in the United States. So, I get more nervous if I’m going to state court in one of the 50 states or a Federal District Court in Los Angeles than I am in the Supreme Court, because I don’t know the judge. I don’t know the courtroom. The local rules I may be less familiar with. Here I know the people. I know the courtroom. I know the rules. I’ve done the drill.
SH: You mentioned earlier having to be familiar with nine Justices and prepared to answer any of their questions. Depending on the subject matter of each case and previous decisions, and knowing their general tendencies, were you typically expecting questions or maybe more engagement from certain Justices?
GDN: So, for every case, a lawyer has to try to figure out, to the extent you can, from prior decisions and the nature of the issues, which Justices are more likely to be amenable to your case and oppositional to your case. So, you definitely think about that in advance and plan for that in advance both with regard to what the questions might be and answer that might persuade. An answer about a statute that would be persuasive to Justice Scalia was very different than an answer that might be persuasive to Justice Kennedy. I mean you’re going to have to change ideologies. One believed in legislative history, one didn’t.
So, using legislative history as an answer in a question to Justice Kennedy would not be very effective in answering a question put by Justice Scalia. Even if he’s being hostile and even if your best argument came from legislative history, that would be the wrong way to start your answer to him. So, instead you would give him the best answer you had using the concepts that he would be most amenable to and then you would transition your answer to the thematic point, which might embrace legislative history, to try to speak to the others who didn’t ask the question but are listening to your answer. That’s part of the challenge, part of the art.
SH: During or after oral argument, did you usually have a sense of whether you’re going to get a favorable or unfavorable decision?
GDN: Most of the time I would say you get clues but the clues are inconclusive. Sometimes it’s pretty clear but those are the 9-0 cases one way or the other. It’s usually perilous to try and predict the outcome from what is spoken at oral argument in a case where it’s going to be divided because you don’t know when people ask questions, whether they’re asking questions from devil’s advocacy perspective or got persuaded by something that was spoken. In some cases, particularly high profile cases they’re actually trying to hide their cards. So, it’s not that you’re not watching and it’s not that you’re not trying to figure out where they’re coming from, but it can be very difficult.
SH: Last question. Is there something unique or special about arguing in the Supreme Court that the average person probably doesn’t know?
GDN: Well put that way, I would say that the opportunity to influence the decision-making process in the Supreme Court is 99% in the briefs and 1% in the oral argument. Whereas in courts of appeals, it might be 80% in the briefs and 20% in the oral argument and in a district court, it might be, depending upon the judge, 30% to 50% in the briefs and 50% to 70% in the oral argument.
And the reason for that has to do with the time and caseload that the Supreme Court had relative to the courts of appeals, relative to the district courts. So, the Supreme Court has a much smaller docket, so the Justices can each spend a lot more time on each case. The quality of the briefing is higher in the Supreme Court on average than in the courts of appeals and the districts courts and so, they’ve given a lot of thought to the cases by the time they actually get to the bench at oral argument. So, it has to be a really difficult case or a poorly briefed case or you have to have not only come up with a new thought that is really persuasive and that you omitted from your briefs to turn the tide of an oral argument in the Supreme Court.
It’s a great professional honor to be able to argue in the highest court in the nation. It’s fun. It’s challenging. I’m not trying to minimize it or tell people don’t come hire an expert because we do that for a living, but in all honesty, the arguments in the Supreme Court are largely for show and not as much for the dough as in the lower courts, where you have much more of an opportunity as an oral advocate to actually influence the decision. The brief writing is critical. There are very few cases when I’ve clerked and you know, I’ve hired Supreme Court clerks for the next 30 years, all of us agree, there are very few cases where there’s any evidence, it’s not that there’s none, it’s just very few each term, where the outcome changed because of something that happened in oral arguments.