A specialized bar for the California Supreme Court?

MOSKOVITZ ON APPEALS

In law, as in most things, California tends to run ahead of national trends. But there's one place we lag behind: the development of a specialized high court bar. Is this one area where Washington, D.C. is actually worthy of emulation?

For much of the 20th century, there was no real U.S. Supreme Court bar. (Formal admission to the bar is largely symbolic.) In most cases, the lawyer who handled the matter in the lower courts also handled it before the justices.

But beginning in the mid-1980s, that began to change, as corporate litigants sought to shape the law by hiring expert Supreme Court counsel, usually former Supreme Court law clerks. Those experts grew adept at influencing the high court's docket through successful cert petitions, and as a result, they started handling a greater and greater share of merits briefing and oral argument.

That trend -- and public attention to it -- has accelerated in recent years. In 2014, Reuters published a landmark report titled "The Echo Chamber." Among other things, it found that over the preceding decade, there were 34 lawyers who argued five or more cases in the U.S. Supreme Court. Those 34 lawyers accounted for an astounding 35 percent of all oral arguments made by private attorneys.

The Reuters report marveled at the success of these experts, but warned that it results in the court hearing from a narrow range of voices, most of whom represent large corporations. Hence the echo chamber of the title.

While clerking on the California Supreme Court a few years back, I was struck by how different our state high court seems to be. I saw plenty of excellent advocacy, but as far as I could tell, there were relatively few repeat players. Most of the attorneys appearing before the court were the same ones who'd handled the case below, rather than specialists brought in for their Supreme Court expertise. California operates much like the way things used to be in Washington, D.C.

That got me thinking about a pair of questions -- one descriptive, one normative. How different is the makeup of advocacy before the California Supreme Court? And if we have less Supreme Court specialization here in California, would more be better?

Answering the first question was fairly straightforward. To approximate the Reuters report, I looked at all civil cases the California Supreme Court decided over the past decade. I then compiled a list of the lawyers who presented more than one oral argument during that decade. And then I cross-checked to see if any of those lawyers had argued criminal cases as well.

The results confirmed my anecdotal impressions. From August 2008 to August 2018, only nine private attorneys argued five or more times in the California Supreme Court, compared with 34 such attorneys in the U.S. Supreme Court over a similar time frame. Those nine California specialists accounted for well under 10 percent of all arguments by private attorneys, compared with 35 percent in the U.S. Supreme Court. None of the California specialists argued more than seven times in the decade I analyzed, whereas the Reuters report identified eight attorneys who argued more than 15 times each in the U.S. Supreme Court -- a group that includes people like Paul Clement and Ted Olson.

That's not to suggest that the nine people on my list are the only California Supreme Court specialists. Five arguments in a decade is an arbitrary cutoff; I chose it only to match the Reuters study. It doesn't account for collective expertise within firms, for attorneys who argued multiple cases over a longer time frame, or for those who authored briefs but didn't present oral argument. And I didn't include lawyers employed by public agencies, just as the Reuters study excluded the U.S. solicitor general's office. (Along the same lines, I excluded attorneys on public defender panels appointed to represent criminal defendants and habeas petitioners.)

But in broad strokes, it's clear that specialized advocacy plays less of a role in California's high court than in its federal counterpart.

The harder question is whether California's legal system would be better off with Supreme Court specialists handling a larger share of cases.

On the one hand, it's likely that an increase in the role of experts would aid judicial decision-making. On the U.S. Supreme Court, the justices often praise the quality of advocacy they see from high court experts. They've even suggested it helps them make better decisions.

This effect might be even more pronounced in the California Supreme Court, which schedules oral argument only after the justices have reached a tentative decision in the case. A nuanced understanding of what can (and can't) be achieved at oral argument could make for more productive arguments before the court. And the court would no doubt benefit from briefing that is attuned to its special institutional role and the interpretive styles of its justices.

On the other hand, there are reasons to fear the "echo chamber" effect. As institutions, high courts are well equipped to handle thorny legal questions, but naturally less adroit when it comes to foreseeing the practical implications of their holdings. As such, many questions at oral argument are about the trial court record and about hypothetical future cases, not legal precedent. A lawyer who has "lived" the case from its inception -- and who routinely handles similar cases in the trial courts -- may be able to offer the court a real-world perspective that a Supreme Court specialist could not.

There's also a related worry about specialization unduly favoring large corporations at the expense of the little guy. But there's reason to think this would be less of problem in California than it is in D.C.

Of the nine top advocates on my list, only five fit the standard big law mold. The other four lawyers are at smaller outfits that routinely represent workers, tort victims, public entities, and small businesses. That may be due to the composition of the state high court's docket. All of its cases are important, but the average litigant in a family law or contract case may not have the means (or the desire) to hire a Supreme Court expert from a big firm. This pattern mirrors trends in the California Court of Appeal, where many appellate specialists are solo practitioners and small firm lawyers willing to work on contingency or for a flat fee on behalf of clients of modest means.

If we assume that a more specialized California Supreme Court bar would be similarly mixed, then there's not so much reason to fear a tilted playing field.

On balance, I warily support greater specialization -- as long as we treat the U.S. Supreme Court as a cautionary tale. The degree and character of specialization in that court is too extreme. Rather than concentrating advocacy in the hands of a few big firm lawyers, we'd likely benefit from a modest increase in specialization from within our existing appellate bar -- which tends to be more diverse in all respects than its Washington, D.C. equivalent. (Whether the economics of legal practice would allow for some -- but not too much -- specialization is beyond the scope of this column.)

And all lawyers who practice in the California Supreme Court, "specialists" or not, could stand to pick up specialized knowledge about high court practice. Some of the best resources, like SCOCAblog and Horvitz & Levy's "At the Lectern" blog, are completely free.

Do you have views on this issue? Want to know more about the list I compiled? Please get in touch.