Tom Goldstein recorded a great ABA Journal podcast on marketing at the Supreme Court level. I transcribed (to the best of my ability) a few of the more interesting questions.
In response to a question about lawyers, who traditionally do not argue before the Court, wanting to keep a case on appeal to the Court:
The lawyer who has case below has very strong incentive not to bring in outside counsel, and have very strong incentive to argue at the Supreme Court . . . . When I started in 1998, it was not very competitive. Now there are 30 law firms with Supreme Court practices actively looking for cases. There are only 40-50 paying opportunities for petitioner or respondent in all of those cases. The competition is pretty accomplished, with Ted Olson, Seth Waxman, Paul Clement, Maureen Mahoney, Greg Garre, and others.
In response to a question about pitching lawyers who have their petition granted (around 10:45):
When I am trying to get involved in cases that are going to be argued at the Supreme Court [JB: those where cert is granted], there are so few of them, as opposed to cert petitions, where there are a lot of them. Then, I not infrequently still need to go out and approach the lawyers in those cases. Not always. I would say that about half the time for my argument, those are cases where I made an effort to get involved . When it comes to paying work of the firm, it is only 10%.
I think Tom’s answer suggests that half of his arguments come from soliciting clients, and of that 50%, 10% are paying customers, and the other 90% are pro bono. That would suggest the other half seek out Goldstein. But it’s not clear from the context. To put that in perspective, according to these stats from Kedar Bhatia at Daily Writ, Tom has argued 25 cases from OT 2000-OT 2011.
In response to a question of how Tom makes the pitch:
It will vary. I do really try to have as non-threatening approach as possible. Because I think there is a felt sense by other lawyer that Supreme Court counsel will try to take over the case. That is not what I am going to do. I want to make sure that that relationship start well. I will almost always call the person. I find that works a lot better than emailing. If there is anyone i know that knows them, I will try to get an introduction to them. Meeting in person is the best of all worlds. But the difficulty of having that comes from courts across the country is that it is often impractical.
In response to a question about hesitancy to take nonpaying clients:
There are industries where I will hesitate more to take on a nonpaying case that will put me in conflict with an entire body of potential clients. For example, insurance, retail. We have relationships where clients may come to us at any time, and who we have done work for in the past. I don’t want to foreclose my doing more work for them, or take a position they will be frustrated with me, for a pro bono client. That is really the only client when I am really concerned. In general, I believe a balance between paying and pro bono client will work its way out. Doing pro bono is an opportunity to do good, but also an important opportunity for getting argument opportunities.
In response to a question of how Goldstein prepares for the “beauty pageants”:
I really try and do all the work myself, rather than asking someone else to do it for me. Because I think the would-be client expects me to do the talking in the meeting. I try to develop a theory of the case, how I would present the case on appeal, or in the Supreme Court. What if anything I would do it differently. I really try and learn a lot about it so that I can go in, without any notes, and talk if I have to for hours about the case about the case and the issues they are confronting and the strengths and weakness. I try to get them involved in the conversation. I’m not a big person about marketing materials, I’m not a big person talking about my past experiences. At the point they call me, invited me to have the opportunity to come in, they knew enough about me, they can see me as a lawyer worth hiring. I try to build a rapport with the decision makers. It is a very intensely personal process.
If they really feel like you are the person who is the busy private practitioner and you don’t even have the case, and you’ve spent the time to know a great deal about it, they believe you will do the work for them as their appellate lawyer, and they will develop a sense if you are good or bad at it, understand their case, understand them as a client, understand their problems. I don’t have the sense that most lawyers who are involved in a beauty contest spend that kind of personal time. Rather they tend to go in and pitch themselves and start a conversation about the case. I want the would-be client to think about this is as a real substantive comment about the case and feel that they can continue the conversation by hiring them.
The “beauty pageant” is the SCOTUS-slang for the pitches made to the clients to get the coveted Supreme Court argument.
In Unprecedented, I discuss in glamorous detail the beauty pageant of how Jones Day was retained in NFIB v. Sebelius. Indeed, Jones Day was retained by National Federation of Independent Business over other prominent firms because of the quality of their pitch, and how much thought was given in advance. Karen Harned, the executive director of NIFB’s Legal Center, who made the decision to retain Jones Day relayed this story:
Harned told me she “didn’t really know the attorneys at Jones Day” before the interview, but was “blown away at the level of thought they had already given the case—a lot more than from other firms.” Harned was also impressed by the breadth of experience at Jones Day, which had recently hired a large number of Supreme Court clerks from both conservative and liberal justices.
I have more details about which firms were in consideration in the book. Harned’s reasoning reflects Tom’s sentiments exactly. Joan Biskupic wrote about the beauty contest in a recent case from Guam.
In response to a question about whether lawyers are good at selling:
You have to build a personal connection. It is sales. Lawyers aren’t salespeople. They went to law school, not ot business school. They like to think about and write about problems. They don’t like to think in the terms of what it is the client is trying to figure out in hiring someone. Lawyers often to miscalculate, and say, what I should do is talk about myself, and why i am a good lawyer, and why i have experience in that area. I think the client knows enough about that at the point they bring you in in the first place. What they are really interested in is how you can apply that skill set and reputation.
Very interesting interview.