Apparently, competition for Supreme Court cases has now grown so intense that biglaw firms are trying to poach criminal cases from small fry defense lawyers. That’s the distinct impression that I came away with after reading Will Defense Lawyers Accept Help on High Court Criminal Cases?
The article reports that this past term, the Supreme Court heard argument on 22 criminal cases – and according to observers in the defense bar, some of the cases were not argued or briefed particularly well. Whereas once, the purported lack of quality did not matter as much because the the states attorney generals office were also less qualified, the article describes that now, most states have high quality, professional solicitors offices with ample appellate experience.
Most of the lawyers quoted in the article who criticize the small fry’s performance are biglaw attorneys who sit on the National Association of Criminal Defense Lawyers (NACDL) board and no doubt are chomping at the bit to log more time before the court. The NACDL attorneys claim that small firm attorneys have rebuffed them when they call with offers of assistance. But NACDL isn’t just offering assistance; though the article doesn’t say it, I am guessing that in most cases, NACDL lawyers essentially want to take the case on themselves, stealing it from the small firm attorney.
One of the cases that the article cites as an example concerns Michael Studebaker, an attorney from Utah who argued the case at the court [full disclosure: Studebaker is on one of my listserves and during a discussion of whether he should retain the case, I was one of those who strongly advocated that he keep it, provided that he was willing to seek support from experts which he apparently did]. The article critiques the length of Studebaker’s brief and quality of his argument. I did not view the argument nor review the brief but as an appellate advocate, I know that you are only as good as the arguments presented below. Once you reach the Supreme Court level, there is only so much that you can do with a case that’s not very strong and the impression that I reached from reading coverage of Brigham (for excerpts of the argument, see here), the defense faced an uphill fight.
Which brings me to my last point. If biglaw cares so much about the rights of defendants, then where is biglaw when it matters? Where is biglaw when a case is initially briefed inside a seedy city courthouse or before a judge on the bench in the middle of nowhere? Where is biglaw when a capital defendant needs to raise a novel argument regarding his IQ or mitigating factors or an expert witness who can discredit the prosecutor’s DNA evidence? Where is biglaw when the defendant can’t pay to order the transcript but didn’t qualify for “in forma pauperis,” so his small fry lawyer picked up the tab and on top of it, briefed the appeal for free? In appellate practice, the lower level is often where it counts, where arguments are raised or waived or successfully developed or not, and where factual findings that bind the case going forward are made. Up at the Supreme Court level, for better or worse, you play the hand you’re dealt. Biglaw might have handled the Brigham case with more deftness, with a 50 page brief and snappy comebacks to the judges, but at the end of the day, I’m guessing that the outcome of what was not a very strong case for the defendant to begin with would have been the same.
And let’s be honest. This cry for better quality representation at the Supreme Court is all about biglaw attorneys trying to leach on to the last “open field” of cases available for argument before the Supreme Court. It has nothing to do with protecting criminal defendants. If biglaw really and truly cared about the quality of criminal representation, it shouldn’t come come waltzing in at the last hour with a high end defense, like a wayward parent who never spends times with the kids but lavishes them with gifts and cash once a year on their birthday and then wonders why they go astray. For all the money, the parent wasn’t there when it counted. And for all the skills and sophisticated arguments that biglaw wants to bestow on a small firm lawyer or a criminal defendant before the court of last resort, truth of the matter is, biglaw wasn’t there when it mattered. They have no right to be there now.