It was March 31, 2015, and Winston & Strawn’s Mark Werbner was experiencing a first in his esteemed, 150-plus jury trial career: He was about to argue before the U.S. Supreme Court for the first time.
He still remembers the moment when Chief Justice John Roberts said, “Commil USA v. Cisco Systems. Mr. Werbner?”
“My God,” Werbner thought. “They know my name.”
Even though Werbner’s first case before the nation’s high court was only five years ago, it feels like a lifetime ago in light of the COVID-19 pandemic, which is creating a new first even for the nine justices: hearing oral arguments over the phone.
The court conducts its first telephonic oral arguments Monday over whether travel website Booking.com can trademark its name. The case Americans will be paying the most attention to over the next two weeks will be argued May 12 over whether President Trump’s tax returns and financial records can be subpoenaed. For the first time ever, the Supreme Court will livestream audio for the 10 upcoming arguments over C-Span.
Whether you’re before the justices in-person in the court’s chambers on One First Street or from your living room, arguing a case before the U.S. Supreme Court is surely to be one of the most important – and nerve-racking – experiences in your legal career.
“Appearing before the Supreme Court, especially the first time, is unlike any other experience a lawyer will ever have,” Werbner said. “It is the Super Bowl, World Series, NBA Finals, Stanley Cup and the Masters all rolled into one. It can give pause to even the most prepared, confident seasoned trial veteran,” said Mark. “The key is to be as comfortable, knowledgeable of the process and as over-prepared as possible.”
The Texas Lawbook asked Werbner for his tips, insights and rituals when it comes to arguing before the Supreme Court in this virtual era.
Texas Lawbook: Many appellate lawyers have night-before/morning-of rituals when it comes to oral argument before the Supreme Court or lower courts of appeals. If you hypothetically were to go to oral argument tomorrow before the U.S. Supreme Court, what would your at-home rituals be that others may find helpful?
Mark Werbner: It sounds simple, but deep breathing. It is amazing how beneficial that can be. And study. Arguing before the court has always required a bar-exam level of preparation and study, but I think that level is even higher when you’re in an environment where you can’t see the justices’ faces or read their reactions. This will be like walking into a radio drama rather than sitting down in an IMAX theater. Those are two very different experiences requiring different kinds of preparation.
TLB: It’s apparent that none of us will be the same coming out of this pandemic. How do you think the Supreme Court may be different post-coronavirus?
MW: Previously, the court would crowd people in very close together, so in the new environment, I expect them to limit spectators. I also expect increased security, with mandated masks and gloves for a while. Just as many lawyers are saying they plan to do more work at home and make greater use of videoconferencing, the court might like its experiment with telephone arguments and use it again. However, if I had to predict, I would say this may be a one-time action for this stately institution.
TLB: What’s your biggest piece of advice to those who are delivering their first oral argument ever before the Supreme Court during this virtual era? If you had to argue your first Supreme Court case over a phone conference, what would your strategy be?
MW: As much as possible, I would try to re-create the in-court experience. This is why I suggest that the lawyers present their arguments not from home, but from a mock courtroom if possible. Doing so will give you a podium to stand at and a table to work from.
Most law schools have mock courtrooms, as do many law firms. A polite ask will almost certainly get you the space for a day. I do not think any lawyer who is about to argue before the U.S. Supreme Court will be turned away.
I do not think there is a substitute for having people with you when making the argument. That’s an important adrenaline boost. So you might ask some silent supporters to join you. They just need to remain properly socially distanced at six feet, so the number of people you can ask to attend will be limited to the size of the room.
Finally, I would find pictures of each of the individual justices and post them on the wall in the order they sit on the bench. It is impossible to replicate the moment that Chief Justice Roberts calls your case, looks you in the eye and you are off to the races. If you have a photo array of the court positioned how they sit on the bench, they will be more than just voices on the phone.
TL: You pointed out the importance of trying to set up your oral argument somewhere outside of the home. Why is that important?
MW: This is high business in the High Court. Your home is a million miles away from that. You might not be able to be there physically, but you need to be there mentally, with 100 percent of your focus on the arguments. It is human nature to lose some focus under the circumstances. But you will retain sharper focus in a professional setting over your home.
TLB: What if you have no other option but to deliver your oral argument at home?
MW: If your home is the only option, make sure it is quiet and can be secured. While kids chasing the dog make for a cute moment in client Zoom meetings, it can create a distraction that derails your arguments during court. Wherever you present from, make sure you are comfortable. All variable elements should be in your favor. There is no excuse for the distraction of being in a room that is too hot or cold, too dark or bright. But don’t get too comfortable. No one sees below your chest on a video call, but that doesn’t give you leave to go casual. Dress like you are going to court. Because you are going to court.
TLB: As meetings, depositions, hearings and oral arguments are now occurring in the virtual world, colleagues, judges and opposing counsel have been patient and understanding with one another as Zoom video chats occasionally freeze or someone’s connection gets dropped. Can you expect the nation’s highest court to be just as understanding if that happens? Why or why not?
MW: Unfortunately, not. You will be expected to have arranged for the best connectivity possible, just as the court will have. If the problem is on your end, it really will be “your problem.” In general, the justices for the most part are not reacting to you differently because it is your first argument and maybe the pinnacle of your career. So that is not a consideration and won’t be if your actions or poor connection disrupts the argument.
TLB: One big downside is you miss the whole dynamic of visual cues that would be important in any oral argument, such as Scalia shaking his head or Ruth Bader Ginsburg nodding. How do you get around that?
MW: Nothing can replace or duplicate actually standing before the justices, not even if you had amazing interactive video. But one has to study the justices in advance and be in tune with their style and inflections. One idea: the court has always made audio of the arguments available on its website. Now more than ever, I would use that audio as a tremendous resource. Listen to the justices and look for clues in their voices the way you would a raised eyebrow or a tilted head.
TLB: What other in-person dynamics do you lose? How do you make up for what you lose?
MW: Maybe the edginess and massive adrenaline rush, and certainly the awe and majesty of the experience. When I appeared before the court, my daughter and wife were with me and we had a big celebratory lunch in D.C. immediately afterward, and that added so much more significance to the day for me. While you may not be able to do the same, plan some sort of celebration with those who are closest to you.
TLB: What do you gain, if anything, by arguing virtually? Would it be easier to focus?
MW: Everyone is different, but I have a hard time seeing benefits in terms of focus. You will be arguing before this nation’s highest court. You will be fielding questions from the justices of the U.S. Supreme Court. The magnitude of the responsibility is what sharpens focus.
TLB: How are you going to know if Clarence Thomas is even present?
MW: Be ready for a surprise!