By Rebecca Prybell • February 06, 2014•Writers in Residence
Supreme Court Sidebar sat down this month with Valerie Newman, a Michigan State Appellate Defender and adjunct professor at the University of Michigan Law School. Valerie has argued* two cases before the United States Supreme Court in the last four years, Lafler v. Cooper (2012) and Burt v. Titlow (2013)**. Valerie was kind enough to speak with Supreme Court Sidebar about her experiences and to offer her advice for law students and young attorneys who have the chance to argue before any kind of court, from a motion in state court to an appellate argument in the highest federal appellate courts.
Lafler v. Cooper (2012) and Burt v. Titlow (2013) dealt with issues of ineffective assistance of counsel during plea negotiations in a criminal case. In Lafler, the Court agreed with Valerie’s position, and found that, despite a fair trial, the fact that the defendant had received incorrect advice from his attorney regarding a plea deal, one that he likely would have taken if not for the incorrect advice, was unconstitutional due to ineffective assistance. In Titlow, the Court disagreed with Valerie’s position, and found that the defendant did not meet his burden of proving that his attorney did provide ineffective assistance of counsel.
Below is Supreme Court Sidebar’s discussion with Valerie Newman:
Q: In previous interviews, you mentioned that after arguing once before the Supreme Court, you would not look forward to arguing before the Supreme Court again, and then only a year later you did go back, how did that come about?
A: That came about because Burt v. Titlow was a Michigan case, and the respondent, Titlow, was unrepresented before the U.S. Supreme Court. Because the case was a follow-up, or appeared to be a follow-up (to Lafler v. Cooper), the local Appellate Court appointed me and then the Supreme Court appointed me.
I am glad I went back and argued again. The second time it was a much more pleasant argument, and it had a much different tone and tenor to the argument. It was different because I think there was not quite as much at stake. In Lafler v. Cooper, everyone except me recognized that it was a potential landmark case. During that argument, there was a lot of the Justices vying against one another, so it was a more difficult argument for me as the litigant. I could feel the angst of some members of the Court and it felt very hostile to me personally. It was something I had not necessarily expected from the Court. Before the argument of course, you read about the Court, you can learn about the nine Justices, there is a lot of information out there. You can talk to people who have argued, listen to prior arguments on Oyez, there is a lot you can do to prepare, and yet none of it truly prepares you for the experience.
Q: When preparing, who did you reach out to or who did you accept assistance from? Were there any women who offered particularly good advice and what was that advice?
A: People reached out to me, very quickly. They reached out even before cert was granted. People who follow the Supreme Court closely thought this was a case the Court might take, so they reached out. I have mixed emotions about the reach out. Some people were nicer about it than others. The basic message from people is you don’t know what you are doing. It didn’t really matter that I was a women. It was offensive, especially in Lafler because that was a case I had litigated for seven years at that point, and I had been very successful. While someone might have been able to argue better than I did at technical level, I knew the case.
Some advice I would give is do not assume that someone can do something better than you can. Everyone has to argue for the first time at some point. Maybe when someone has argued three or even thirty cases, they are well respected, but that still does not mean that they will do any better of a job than you will do. The fact that I knew the case so well and was so passionate about it, made me successful.
Q: How did you choose who would be your second chair during the argument? Was your decision to have women sit with you a conscious one?
A: My second chair during Lafler was Jacquline McCann and during Titlow I had Jessica Zimbelman sit with me. They are both attorneys from my office and attorneys that I trained. I did want a female second chair because I believe in mentoring especially young women in my office. Jackie (McCann) and I worked on a lot of cases together. At the time of the argument, Jessica (Zimbelman) was a very new attorney in the office and had to be admitted to the Supreme Court to be able to sit Second Chair. I considered having them sit Second Chair as part of mentoring, and I wanted to offer that opportunity to a woman.
We had a lot of help in preparing for the argument. It was a great learning experience. I had a law student who was doing pro bono work as a fellow; he did great work on the case. We also had a team of folks at Sidley Austin, led by Jeff Green, who were fantastic throughout the whole process. Jeff and his folks were the only ones who were willing to work with me, instead of take the case from me. Their firm does a lot of Supreme Court work, so they know what they are doing. It was really an incredible commitment on their part, working on the case just for the sake of advocacy.
Q: What differences can you identify between your first and second time arguing before the USSC?
A: Any time you have argued once, the second time you will have a comfort level that was not there the first time. The second time I felt more comfortable and better prepared. I prepared a little differently because I knew what I thought was helpful, whereas the first time I was flying blind. I knew the second time who to ask to do the moot court arguments, people with the right characteristics to really challenge me.
Q: At any time, during either argument, did you feel that your experience was different than any of the male counsels?
A: No, there was no overt or covert sexism or anything like that. I thought I was treated fairly. Of course, in Lafler, there were people like Justice Scalia who were very adverse to the position I was arguing. I do not think it was a woman or a personality thing but it is hard to not take it personally. Overall, at that level, everyone is extremely nice, helpful and courteous.
Q: You argued against the same counsel in both arguments. Did that make a difference? Throughout the argument, he calls you “my friend”, you called him “brother counsel”, was there any thought that went into that?
A: We have a good relationship so it did not make a difference. In terms of what we called each other, at the Supreme Court, they give you a book of rules. It tells you that you are supposed to refer to the opposition as “my friend”. They emphasize that they want civility. I felt funny saying “my friend” so I chose “brother counsel” because it is something that is used and it was more comfortable for me. At the Supreme Court, they want it to be friendly, despite the obviously tense atmosphere during the argument.
Q: Was it helpful to have the companion case, Missouri v. Frye, during Lafler?
A: It was a blessing and a curse. During the process, we were working to get amicus briefs written and submitted. There was one amicus partner in particular that we wanted to do a joint brief, but the other case was much more focused and a lot easier to wrap your head around. There was a clear ethical violation in that case, whereas Lafler was a little messier, even though the state had conceded to ethics violations.
It was nice that I knew Emmett Queener, who argued the other case (Missouri v. Frye). We were able to do a moot court together and it was nice to talk to someone who knows your issues and your case.
Q: During the Titlow argument, Justice Breyer was very fact intensive in his questioning, while Justice Stevens brought it back to bigger points. Did you anticipate that?
A: There was really nothing that came up during the argument in Titlow that I did not expect. A difference between the two cases I argued was my level of involvement. In Titlow, I stepped in at the appellate level, and it is always tough to step in at the end of the litigation. In Lafler, Mr. Cooper was my client from day one. In Titlow, I could not do anything about the record, it was what it was, and it was missing things, which was ultimately fatal to the case. I understand why Justice Breyer went fact intensive; it was because there were important facts missing. While I think I could have won and should have won in Titlow, I understand why the Court issued the decision that they did.
Q: Obviously, arguing before the Supreme Court is a privilege few attorneys get the opportunity to have, but in general, when preparing for oral arguments before any Appellate Court, what advice do you have for young attorneys and specifically young female attorneys?
A: My advice is to be prepared. That is the number one piece of advice I have, you have to be prepared. If you are doing appellate litigation, you should be doing a mock of the argument. I have been doing this for twenty years and I still do a mock before big cases. The reality is, if you have five to six people who have read your brief, they are apt to think of things you have not thought of before. You do not want the moment when you think of something for the first time to be before the real court. You want time to work out the issue and do research.
Preparation is really the key. There have been a number of times when I have seen lawyers who have not anticipated simple questions. This is especially true for women, because you lose integrity if it looks like you are unprepared and have not looked at the case from the other side’s perspective. The same is true for a trial. Doing a full mock trial is tough but if there are particularly thorny issues, you might want to get someone to work through them with you.
I would also recommend that people read Justice Sonia Sotomayor’s book. It talks about how she prepared for cases and gives good perspective.
Finally, have confidence. There are times as a lawyer that are very trying and lots of emotion go along with that. Especially as a woman, you have to work hard to compartmentalize it. If you lose a case, you have to be professional. There is nothing worse than seeing someone rolling their eyes and shaking their head.
*The recording of Valerie's arguments can be found here:
**Lafler v. Cooper, 132 S.Ct. 1376 (2012); Burt v. Titlow, 134 S.Ct. 10 (2013)