Grading Oral Arguments

Both SCOTUS Blog and How Appealing have posts up here and here about the oral argument grades that Justice Harry Blackmun gave various lawyers who appeared before him during his time on the Supreme Court, including the mediocre grades he gave three lawyers who now sit on the court - Chief Justice John Roberts, Justice Ruth Bader Ginsburg and Justice Samuel Alito.

Blackmun's report card has further roiled the always-simmering discussion of the impact of oral argument on the outcome of any given appeal. Howard Bashman, of How Appealing fame, weighs in with a very thoughtful column on Law.com. I agree with what Howard has to say but I want to expand a little on the points he makes.

First, let's put any appellate result in perspective. The variables involved in the outcome of any case are essentially as follows:

a) The quality of the record, i.e. the facts;

b) The current state of the law based upon binding precedent if you are not in the highest court around or stare decisis if you are;

c) Who the judges/justices are and how they individually apply factors a and b; and finally,

d) The persuasive quality of the written and oral advocacy that the judges/justices get through the briefs and oral argument of the advocates that help them reason though the application of b to a.

Now, these variables cannot be computed in some sort of algebraic formula and as Howard Bashman notes, the best lawyer won't always win. Nevertheless, the outcome of every appeal will turn on how these variables play out against each other and since arguing an appeal is an exercise in persuasion just as the trial was, it follows that the lawyer who does the best job of working these variables through a well written brief and a cogent oral argument, will have an edge over the lawyer who writes a poor brief and/or who was not prepared for oral argument. That edge may well be the difference for your client.

One final thought on Justice Blackmun's "report card." Although his grades were mediocre, Roberts, Ginsburg and Alito had an outstanding success rate in the Supreme Court for their clients. I guess that's the beauty of having appeals decided by more than one judge.