KNOW WHEN TO SAY WHEN

Last month we learned that it's good not to be asked questions during oral argument (at least in some courts). This months news is that it may sometimes be the better practice not to say anything.

This isn't about trial litigation when it's obviously sometimes the wise practice to be quiet, though there's that, too. You know, the rules they taught in trial practice in law school:

• Don't ask the "one question too many."
• Don't ask a question on cross to which you don't know the answer.
• Don't ask any questions on cross if there's nothing useful to be had from the witness.

Good rules all, though as with all practice advice, violate if you have a really good reason and you know what you're doing.

On a related note, George Orwell's "Politics and the English Language" where the sixth and last of his suggested "rules that one can rely on when instinct fails" is:

Break any of these rules sooner than say anything outright barbarous.

But, again, that's not today's keeping-your-mouth-shut-topic (a metaphorical mouth, in this case). Today's comes from this story in the National Law Journal (free registration required), "Study shows influence of SG in high court cases granted cert."

Here's the skinny, and it comes in two parts - one a whole lot more useful, I think, than the other.

First, the less useful part. The Supreme Court typically grants cert in just under 1% of the cases for which a cert petition is filed. However, when the Court asks for the Solicitor General's view, it grants cert 34% of the time. And it accepts the Solicitor General's suggestion on whether to grant or deny just under 80% of the time, which is remarkable.

I say this isn't all that useful because I don't think I have any idea what I can do in a cert petition (or an opposition filing) that would lead the Court to seek the SG's view. But the second part I can maybe do something with occasionally.

Again, the Court grants cert just under 1% of the time. However, respondent files a response to the cert petition, the percentage of grants goes up. Just how far it goes up is a function of who's responding and whether the response is voluntary or called for after respondent initially declines to respond.

• In 80.5% of petitions, a respondent waives his or her right to file a brief in opposition.
• When the Solicitor General represents the respondent, and chooses to file a voluntary response brief, the grant rate is 26 times higher than in instances where the office opted to waive response. When an individual state is the respondent, the grant rate increases by a factor of about 16 when the state voluntarily files an opposition brief. For private respondents, the grant rate increases only by a factor of three.

I know that if I want a court of discretionary review to refuse a case, I don't want amicus in opposition to granting review. That just makes the case seem important. Now, it seems, that any response at all may tend to do that, at least in the U.S. Supreme Court.

It'd be nice to see a similar study of other courts of discretionary review, like the Ohio Supreme Court. But even without that study, there's food for thought here. So, in those rare cases where I'm the respondent, I need to think carefully about whether to respond.

By the way, the full study on which the NLJ article is based is in the George Mason Law Review. You can download it here.