Instructions for Counsel

Instructions for Counsel’s Brief:

In developing a written argument on behalf of your side’s position, you are representing your side’s particular interests, which include winning the case at hand. But it is not enough to say “my side should win,” nor is it sufficient to appeal to abstract principles of fairness. Rather, you are trying to convince the justices to adopt a specific interpretation of the constitutional provisions at issue. The justices, in this dispute, are less interested in the fate of your particular client than in how your client’s case will affect the development of legal doctrine. Your brief should seek to guide their efforts by relying on Supreme Court precedent, jurisprudential doctrines and tests, and other legal approaches to demonstrate the persuasiveness of your position.

The brief should begin by clearly identifying the central constitutional question or questions presented by the case, and then briefly describing the case’s background as set out in the materials provided to you. The core of your brief, however, should focus on convincing the justices that existing law, as applied to the facts before you, best supports your proposed resolution of the constitutional question or questions you’ve identified. Case facts should not be discussed for their own sake; rather, you should work the most germane case facts into your argument as support for it. Do not add to the case facts presented to you; it is essential that all actors work with the same information. And be certain to acknowledge the most compelling counter-arguments, while resisting the temptation to present and easily knock down a caricatured version of them, and to respond to them directly.

Much of the assessment of your brief will rest on how well you make use of relevant materials, including Supreme Court opinions from precedent cases. While only majority opinions have precedential value, you may also draw upon the reasoning presented in plurality, concurring, and dissenting opinions if you find that reasoning persuasive. When drawing upon non-majority opinions, be certain to note that the cited material comes from a non-majority opinion.

Rules Governing Formatting and Citation:

Your briefs are limited to ten double-spaced and numbered pages with 11–12 point font and 1” margins. A separate cover sheet should be attached with your name and student ID #. Do not feel the need to resort to stilted language that you might associate with “writing like a lawyer.” But your language and tone should be appropriately formal. Equally important, your briefs must display an appropriate degree of professionalism; they must be logically organized, cleanly written, and attentive to issues concerning grammar, syntax and spelling. Poor writing will make the merits of your argument less visible to the Court, and as such will adversely affect your chances of winning.

Conventions on citation:

  • The first time you cite a case, use the full case name (in italics) with the year and the full citation. For example, Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).
  • For subsequent references to that case, you may use a shortened version of the case name, or just the case name. For example, Parents Involved.
  • Usually, the shortened version refers to the first party, but when the United States is the first party, you should refer to the second party. (Because the United States government is such a frequent litigant before the Court, referring to the United States in the shortened version would cause substantial confusion about which case you are referring to.) For example, U.S. v. Ballard, 322 U.S. 78 (1944) becomes Ballard. If a state is the first party, then you should use both names in subsequent references. So Miranda v. Arizona, 384 U.S. 436 (1966) would become Miranda v. Arizona.

Some other usage conventions to keep in mind:

  • When you are referring to the Supreme Court, it is capitalized, even if you use just “the Court” or “the High Court.”
  • It’s “Justice Breyer” when referring to a specific justice, but “the justices” when referring to them generically.
  • Similarly, while proper nouns are capitalized (“Congress,” “the Constitution”) their adjectival forms are not (“congressional,” “constitutional”).
  • Specific amendments or articles of the Constitution should be capitalized as well.
  • The plural of “precedent” is “precedents” not “precedence.”

Instructions for Counsel’s Oral Argument:

In addition to filing briefs, counsel will be responsible for orally arguing the case before the justices. You will have twenty minutes before the justices, and the Chief Justice will strictly enforce the time limit, so do not expect that you’ll be allowed to finish a thought once time has been called. Before beginning your oral argument, you should address the Court with this phrase, “Mr. (or Ms.) Chief Justice, may it please the Court.” Throughout the proceedings, when referring to a justice, it is appropriate to use the title Justice or Chief Justice along with the last name. Placards will be posted in front of each justice to help you remember which justice you’re addressing.

Do not prepare for oral argument as if you are going to be allowed to present a speech. The justices can and will interrupt you, and they might do so very early. If you inflexibly commit to giving a speech, you will find yourself frustrated, and the justices will become frustrated over your unwillingness to engage their questions directly. Instead, prepare a roughly two-minute overview that spells out your side’s central contention (e.g., “The state’s program violates the Commerce Clause because it impermissibly privileges in-state economic interests at the expense of out-of-state interests, and does so without a sufficiently compelling reason”). Afterwards, you’ll start developing your position until the justices interrupt you. (If they do not interrupt you, just keep going. But since their grades hinge in part on their contributions to oral argument, they will have incentives to interrupt you early and often.) Because interruptions will be likely and frequent, you might want to prepare your argument in a modular fashion, so that you’ll be able to skip around as dictated by the order and type of questions you’ll confront.

You may bring written materials with you to oral argument, but you should not expect to have time to look through them. And reading verbatim from your brief just looks and sounds awkward; instead, I’d recommend index cards with a few notes on each of them to serve as signposts for your argument. If you’ve prepared appropriately, you’ll be able to look at these notes and remember how to fill in the gaps. (And manipulating index cards is less unwieldy than flipping through a brief in search of material to use.)

Remember that during oral argument, your main job will be to respond to the questions of the justices. Using their questions to make your points will serve you better than putting them aside while you make a point. Even if you think a question is foolish, misguided, or irrelevant, you need to address it; the justice posing that question will not look kindly on your ignoring or criticizing it. If you find the question unclear, or if you find the question clear but you’re unsure about how to answer, you should ask the justice to rephrase. That will buy you a little more time to think. If that extra time proves insufficient, try your best to answer, but without conceding anything crucial to your side’s position. You must avoid saying anything that would concede defeat; make the best argument you can, even if it’s not one you might consider to be especially convincing.

To get a clearer sense of how oral argument at the Supreme Court tends to go (types of question, pacing, etc.), you might want to listen to some oral argument at oyez.org.