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Supreme Court Sidebar: A Talk with Erin Murphy

This month, Supreme Court Sidebar sat down with Erin Murphy, a partner at Bancroft, PLLC. Erin recently made her first argument before the United States Supreme Court on October 8, 2013 in the case McCutcheon v. Federal Election Commission. Prior to joining Bancroft, PLLC, Erin was a law clerk for Supreme Court Justice John Roberts and Seventh Circuit Court of Appeals Judge Diane Sykes. She was called a “young superstar” by Above the Law. Erin spoke with us about her experience arguing before the Supreme Court and gave her advice for younger practitioners who dream of one day arguing before the Supreme Court.

The media reported that you were selected to argue the case less than a month before the argument was scheduled. Did you feel that you had adequate time to prepare for oral argument?

Although the final decision on who would be arguing was made a bit later than may be typical, I had been involved in the case for a while and was very familiar with the issues by the time the decision was made, so I had no concerns about how much time I had to prepare.  When it comes to Supreme Court arguments, I really do think there is a thing as too much time to prepare—at a certain point, you are more obsessing than preparing.  I felt like I had just the right balance between enough time and too much time. 

This was a very well publicized case. Did you have a game plan for dealing with the publicity? Did you feel any extra pressure from the publicity?

I suspect everyone who argues before the Supreme Court feels a great deal of pressure, so I’m not sure how much the degree of publicity really affects that dynamic.  That said, I did try my best to stay focused on preparing for the argument.  While this was my first time arguing, it wasn’t my first time being involved in a pretty high profile case, and I’ve learned that paying too much attention to the publicity can drive you crazy. 

During your preparations, who did you reach out to or accept help from? What was it about their assistance that made them good mentors?

I was happy to get help from pretty much anyone who was willing to offer it.  I focused in particular on talking to people I know who have significant experience arguing before the Court, and also former clerks I know who have specific familiarity with the current Justices.  The most invaluable assistance I received was through my moot courts, which are one of the great traditions of the Supreme Court bar.  Attorneys routinely volunteer their time to sit on moot courts just to help other attorneys prepare for their Supreme Court arguments, and I was very lucky to have some fantastic advocates volunteer to participate in mine.  There is just no substitute for standing at a podium and arguing your case before a panel of seasoned practitioners whose questions are often even more difficult than the ones the Justices will ask. 

During your oral arguments, Justice Kagan and Justice Breyer seemed to steal the show with various hypotheticals. Did you anticipate your argument going this way?

I wasn't tremendously surprised by where the bulk of the questions were coming from given the interest Justices Kagan and Breyer have shown in campaign finance issues in the past.  And although the Justices always have their own way of putting hypotheticals, fortunately, many were familiar from my moot courts.  Of course, the Justices don’t always give you quite as much time to answer!

Did your experience as a second chair to Paul Clement make the experience of actually arguing easier?

I think one of the most helpful things for an advocate in any court is familiarity with both the court and its members.  And in that respect, all of the arguments I’ve attended—both at counsel table and as an observer—were hugely helpful.  It’s hard not to be nervous when arguing before the Supreme Court, but the mere fact that the courtroom itself is a very familiar environment to me went a long way toward calming my nerves.  One thing you may not appreciate if you haven’t been there before is that both counsel table and the podium are very physically close to the Justices.  That up-close-and-personal aspect of the experience is probably even more intimidating for attorneys who haven’t had the experience of sitting at counsel table before.

Arguing before the Supreme Court is obviously a privilege few attorneys will have, so in general, when preparing for oral arguments before any Appellate Court, what advice do you have for young attorneys, and specifically, young female attorneys?

When it comes to appellate arguments, moot courts really are invaluable.  I have done at least one moot for each case I have argued, and I really do think there is no substitute when it comes to preparation.  No matter how much time you spend thinking of questions, you just aren’t going to think of all the things that someone else coming at the case with a different perspective is likely to ask.  And, at least for me, learning how to answer a question and learning how best to articulate that answer out loud are two entirely different skills.  You also can’t really tell whether your answers are satisfying—or even readily understandable—if you don’t try them out on some other people.  I’ve found that many female attorneys in particular are more comfortable with written advocacy than oral advocacy, which makes moot courts all the more critical.

Do you have any pieces of advice for young attorneys to help them be successful during the oral argument?

First and foremost, do not forget that you are there to answer the court’s questions.  That may seem obvious, but I can’t count how many times I’ve seen attorneys try to avoid answering hard questions or hypotheticals, and it never fails to irritate the court.  At the same time, the ultimate goal is to strike the right balance between answering the court’s questions and also making the affirmatively helpful points that you want to make.  I think the very best advocates are the ones who manage to use their answers to subtly steer the argument in the direction of what they want to be talking about.  It’s an incredibly hard thing to do, but to me, it’s the ultimate aspiration. 

Were there any pieces of advice you received throughout the preparation for your argument that you found to be particularly helpful?

This may seem like another rather obvious one, but I really appreciated how many veteran advocates told me not to forget that an argument is supposed to be fun!  That may not be the easiest thing to remember in the moment, but I did try to appreciate when I first stood up (and perhaps even more so after I sat down) the real honor and privilege that arguing before the Court is.  Appellate arguments of any kind can be difficult to come by, so I try to appreciate that every time I get the opportunity to argue a case, and I encourage all of you to do the same as well.   

Recordings of the Oral Argument in McCutcheon v. Federal Election Commission can be found here: http://www.oyez.org/cases/2010-2019/2013/2013_12_536

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