The Highs and Lows of Supreme Court Advocacy


Brandt Revocable Trust v. United States

I was kind of pulling for Steven Lechner on this one. It was hard not to. Lechner was the lawyer who experienced one of the more embarrassing moments in the history of Supreme Court oral arguments.

(Ok, more than a little hyperbole here. There have been plenty of other embarrassing moments. In recent history, there was, of course, Solicitor General Donald Verrilli’s frog-in-throat-water-sipping moment in the health care case. It’s not particularly embarrassing in and of itself, but it was on a far bigger stage, compounded by the same-day audio release. There was also an embarrassing moment I recently came across on the part of the losing attorney in the famous 1963 Gideon v. Wainwright case. The justices were asking him about Clarence Gideon’s competence representing himself in court when Justice Stewart asked whether Florida would allow a non-lawyer such as Gideon to represent anyone else in court. The correct answer was no, but the lawyer for some reason said yes. This set off a flurry of “really?!” questions from the Court, which the lawyer eventually brought to a close with a refreshingly honest confession: “I’m sorry, Your Honor; that was a stupid answer.” Yes, that was pretty embarrassing.)

Back to Lechner: This was the lawyer who, in the case of Marvin M. Brandt Revocable Trust v. United States, started oral argument by apparently reading from a prepared text. He was just about a minute into his argument when Justice Scalia interrupted: “Counsel, you are not reading this, are you?” Ouch. This was then followed by a long, painfully awkward silence: 6 seconds of nothing, according to my Oyez clock. (But really, what was he to say?) The silence was broken when Justice Breyer offered a reassuring, “It’s all right,” at which point attorney Lechner got back to his presentation. Here is the clip of the opening scene from Oyez.

But on Monday, Lechner emerged victorious. The Court decided 8-1 in his favor. I assume when Chief Justice Roberts announced the decision from the bench, he read from a prepared text.

(Note: Professor Richard Pildes has a nice entry at SCOTUSblog on the likely reason the Chief Justice took this relatively low profile case for himself.)

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