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Assume a posture of respectful Intellectual equality with the bench

The Solicitor General of the United States – the most frequent and often the most skilled advocate before the Supreme Court of the United States – is sometimes called the “tenth justice.” Every advocate has the opportunity to deserve this description – to be so helpful to the court as to be a colleague of sorts, albeit a junior one. And that is the sort of relationship with the court, a relationship of respectful intellectual equality, that counsel should try to establish. Some appellate judge refer to oral argument as the beginning of the court’s conference – an initial deliberative session in which counsel participate.

Intellectual equality requires you to know your stuff, to stand your ground, and to do so with equanimity. When you write your brief, or stand up to speak, have clearly in mind this relationship that you wish to establish. It is not the relationship of teacher to student – and if the judges get the impression that this is your view of things, you will have antagonized them. Nor is it the relationship of supplicant to benefactor. You are not there to cajole a favor out of the judges but to help them understand what justice demands, on the basis of your intimate knowledge of the facts and law. Perhaps the best image of the relationship you should be striving to establish is that of an experienced junior partner in your firm explaining a case to a highly intelligent senior partner.

Respect for the court is more effectively displayed by the nature of your argument (by avoiding repetition, for example, and by refraining from belaboring the obvious) than by such lawyerly obsequiousness as “if your honor please” or “with all due respect.” Of course if you’re going to err on the point, it is probably better to be unduly deferential than not deferential enough.

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