Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Tuesday, May 8, 2012

Who is the Audience?

In a recent New York Times article, Adam Liptak discussed the competing views of Solicitor General Donald Verrilli's performance before the United States Supreme Court in defending the constitutionality of the health care law. It is a fair and even-handed description of the debate. But the existence--and sometimes overheated nature--of the debate is a source of concern for at least two reasons. First, justices who oppose the televising of Supreme Court arguments--an issue that was revisited ad nauseum in connection with the health care law hearings--often express the concern that the practice would feed the popular media's tendency to reduce important issues to decontextualized snippets. They worry that this would prove, at best, trivializing and, at worst, misleading. Unfortunately, the firestorm over the number of times that General Verrilli cleared his throat will reassure those justices that their anxiety is warranted. Second, the comments of many of General Verrilli's critics (who have never argued before any court, let alone the Supreme Court) reveal their misunderstanding of the role that lawyers play when they argue a case. The lawyer's job is not to be "dazzling" (a word often used to describe Clement's abilities, and with which I would heartily agree). Rather, the lawyer's job is to help a judge or justice do theirs. An argument filled with zingy one-liners and dramatic pauses may play well to the press but do little or nothing to assist a judicial officer in thinking about how to decide a case, describe their reasoning, or frame their holding. When I was a very new lawyer, a senior partner in the firm and I happened to be in court when a lawyer gave a very flashy argument to a judge. It kept everyone in the courtroom highly entertained, but I noticed the judge had a sour look on his face. My colleague observed it as well, and I asked what that was about. "This lawyer's problem," he responded, "is that he's arguing to the benches ... rather than arguing to the bench." To borrow a phrase from Shakespeare, oral arguments that are "full of sound and fury" are fun to watch--but they may signify nothing.


  1. Does this remain true when arguing to Justice Scalia while he is repeating language from conservative talk radio, or perhaps more importantly, Justice Kennedy, prone to rhetorical flashes of his own? The Justices seem quite aware of the effect of one-liners in selling their decisions - is it not reasonable to think maybe they are also swayed by them?

    1. This is a good question, Andrew. I have two thoughts. First, I think that lawyers should be careful not to assume that they have the same rhetorical license that the judges before whom they appear do. They don't. Second, I agree that sometimes a rhetorical flourish may help a judge understand why a particular ruling would have or lack merit or assists the judge in expressing (or "selling") their conclusions. But I believe it is critical to stay focused on the primary task at hand: to help the judge do his or her job ... not to dazzle them with your unbridled brilliance. I think this is why law school oral advocacy competitions often sound like debates while the arguments of highly experienced advocates often sound like conversations.