Monday, May 15, 2006

Defense Lawyers in the Supreme Court

Some observers are concerned that some criminal cases before the Supreme Court are not ably handled by the defendants' lawyers, who often are not experienced advocates at that level. Tony Mauro, - Will Defense Lawyers Accept Help on High Court Criminal Cases?, Legal Times, May 12, 2006.

The National Association of Criminal Defense Attorneys (NACDL) has offered behind-the-scenes help, but now some leaders are trying to formalize the assistance, with moot courts and assistance with brief writing.

Formerly, criminal cases often had inexperienced Supreme Court advocates on both sides. But many states now have solicitors general to handle the litigation -- and the U.S. Solicitor General is often granted argument time on the side of the prosecution.

The article quotes Jeffrey Fisher of Davis Wright Tremaine, "one of the very few stars of criminal defense advocacy who currently practice before the Court." (Fisher has taught Supreme Court Decision Making at the UW. Soon he is moving to California to join Stanford's Supreme Court Litigation Clinic.)

Carolyn Elefant of MyShingle picked up on the big firm affiliations of many of the lawyers expressing concern about the quality of the defense advocates. She was concerned that the NACDL proposal was a move to take over cases. Hey Biglaw - Where Were You When It Mattered?, May 12. A commenter replies that NACDL is not trying to steal cases and that many of its leaders are from solo and small firms. One of Elefant's points remains: there's important, much needed work to be done in the lower courts too. More resources should go there, so that the records are better by the time the cases get to the Supreme Court (if they get there at all).

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Image from the Supreme Court's homepage,

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