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SCOTUS Leak Shows Why Litigators Need to Know Their Judges

May 23, 2022, 8:00 AM

Is there a broad takeaway that litigators can find in the troubling episode involving the U.S. Supreme Court “leak heard ’round the world”?

Few lawyers will ever litigate cases with the potentially epic consequences of Dobbs v. Jackson Women’s Health Organization, the abortion case that was subject of the leaked draft opinion.

And few lawyers actually expected that President Trump’s three Supreme Court appointees would sympathize with Roe v Wade, given an opportunity to overrule or cut it back significantly—no matter how they may have dissembled or refused to answer questions during confirmation hearings. Any active litigator surely realized that then-nominees and now Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were specifically selected expecting that they might help undo Roe, even though confirmation hearing testimony doesn’t always provide a crystal ball.

The leak is extremely troubling, but the likely result is unsurprising. The key: the Senate questioning and vast research of the media scouring everything they authored helped disclose where their votes would probably end up. The president’s counsel did his homework. Homework is key!

Predictability, though, not always foolproof for Supreme Court nominees, is far less certain when it comes to federal district court nominees before whom most litigators appear. Those confirmation hearings are typically perfunctory. Put simply, litigators must do their own research about the judges they appear before.

Advice for Litigators

The following is advice on how to best position your case with the judge.

Assume your case is assigned to a particular judge. Your research skills will potentially disclose his or her views on the critical issue that your case presents, based upon prior career or writings, or an earlier decision. Be clear though: you’re stuck with that judge. Recusals are hard to come by, and properly so.

Your task, then, is to overcome possible predilections or legal proclivities based on a judge’s personal and professional past, prior writings, earlier decision(s), or all of these. You’ll be unlikely to persuade a judge that a prior decision was wrong.

The judge has likely made up his or her mind on the overarching issue presented; unless an intervening decision compels a change in thinking, or maybe even binds the decision. Without that, your task it to distinguish the hell out of the earlier case. Not so easy, typically; but perhaps your client’s story is more sympathetic, or you can establish that the adverse party in your case warrants no favorable consideration.

Put simply, the judge’s earlier decision is there, and immovable. Your task is to move around it. Maybe another judge decided differently and you can discern if that ruling might compel your judge to think differently on the issue.

Maybe your pathway lies in how your judge conducts the courtroom. You need to closely study the judge’s rules, and observe him or her in action. How far does the judge allow lawyers to go? When does the judge lose patience with an argument, or aggressive argumentation? Maybe this judge is the sort who listens to and is influenced by the last attorney who speaks—some are.

Look, too, to see how the lawyers arguing before the judge manage to somehow turn the light on for the judge through some technical skill. It may be rare, but it happens—that is, the thing that may potentially distinguish your case from a previously adverse ruling. Maybe it lies in your storytelling skills.

In the Supreme Court, things are different. Lawyers there argue orally and after submitting briefs simultaneously to nine justices (or fewer) and the justices are rarely moved by oral argument—some publicly say so. Different considerations apply in the lower courts.

Molding the Facts in Lower Courts

In federal district court, the lawyer’s job is often to mold “the facts,” if only to create a favorable factual appeals record. District court factual findings are largely left undisturbed on appeal.

So, if you’re unlikely to persuade the district judge on the law, your primary task may be to a maximize a sympathetic fact-finding by him or her, recognizing that only an appeals court can provide relief from the district judge’s adverse view of the law.

We may never know how Justice Samuel Alito’s opinion and, importantly, those of his colleagues, may change in Dobbs due to the disturbing leak. So, in fairness, “the leak” won’t likely provide the district court litigator with meaningful insight on effective litigating.

It should, however, provide a critical reminder that the district court litigator needs to conduct the kind of “personal” research that moves heaven and earth to digest his or her assigned judge as soon as the case is assigned. Trust me, those who argued Dobbs did so long before the case reached the Supreme Court.

I co-teach a class on judging at both Fordham and Cardozo Law Schools in New York. Under a regimen of omerta—what occurs in class stays there—every week we invite judges to speak and they describe their innermost thinking about their own decisions and decision making. Don’t you wish you could be there? Happily, though, there are no leaks. I take the liberty of saying, though, that every single guest judge tells the class: “Know your judge!”

Your job is to learn everything possible about your judge, and what might move his or her thinking. We currently have insight into the February thinking of at least Alito on Roe, and maybe that of some of his colleagues. The “leak” and its possible aftermath, though, more than anything, should remind the rest of us of our job as litigators (even if our case isn’t on the Supreme Court docket).

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Joel Cohen practices white-collar criminal defense at Stroock & Stroock & Lavan LLP. Previously, he served as a federal and state prosecutor. He is the author of “Blindfolds Off: Judges on How They Decide,” and is an adjunct professor at Fordham University School of Law and Cardozo School of Law.