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So You Want to Argue Before SCOTUS? Get in Line

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By Jonathan R. Tung, Esq. on October 07, 2015 6:55 AM

Within the legal community, a sure-fire way to boost the prestige of a firm is to argue before the Supreme Court of the United States. The legal community and general public treat the Court with hallowed reverence (although this may be changing).

Even proximity to Washington DC can do wonders for your bottom line. Many lawyers will go through the trouble of earning their license in DC simply because it will allow them to charge up to 25 percent more per hour than they otherwise could. If one earns the privilege to argue before the High Court, the hourly rate potential can reach in the thousands. The incentives to argue before SCOTUS really can't be overstated.

A Really Small Club of Elite Lawyers

In order to be a SCOTUS firm, you'll either have to hire an attorney who has argued before the Supreme Court, or cultivate yourself or one of your firm's lawyers to get there. However, that's easier said than done. The steps involved in getting there almost ensure that the number of attorneys who argue before SCOTUS is a very small, very elite group.

Be an Active Lawyer for Three Years and Be in Good Standing

Any lawyer who has been an active member of a state bar for 3 years and is in "good standing" with that state bar is eligible to apply for admission to the Supreme Court of the United States. The applicant must complete an application form and attach a certificate of good standing from the state's highest court and send it to the clerk of SCOTUS. If the clerk's certificate is beyond a year old, then the applicant will have to start the process all over again.

Find Two Sponsors

The applicant must also find two members of the SCOTUS Bar to sponsor them and vouch for the applicant's character and qualifications. This acts an additional road-block to admission. However, once the lawyer successfully completes these steps, the SCOTUS clerk will review the application. If everything is squared away, she will issue a certificate of admission to the SCOTUS Bar which gives the applicant the right to argue cases before the highest court in the land.

Actually Stand Before the Nine Justices

It is one thing to pass the hurtles to gain admission, but its another thing to actually argue before the Court. During the Court's long conference, the Court essentially rejects almost all petitions. Of approximately 10,000 petitions that are submitted, less than a hundred will actually be heard by the Justices. That's less than a 1 percent chance of your case being heard.

Wait: It Gets Worse

The 1 percent number mentioned above assumes an equal chance and random roll. It turns out that some lawyers get more favored treatment at SCOTUS.

The idealism that surrounds the Supreme Court is often at odds with the reality of practice. A Reuters piece examined the rate of acceptance of some lawyers who petitioned for cert at SCOTUS against other private attorneys. It found that over 9 years of cases and 17,000 lawyers, 66 of those lawyers were 6 times more likely to have their cases heard by SCOTUS than the others.

These lawyers were part of a very rarified area in the law: firms that specialize only before SCOTUS. And although they represent only 1 percent of the lawyers who filed cert to the Supreme Court, these attorneys were involved in 43 percent of the cases the Court decided to hear from 2004 to 2012. These numbers suggest that it takes something more than just having a novel issue of Constitutional Law to argue.

The Grand Takeaway

It may turn out that you may have to settle for something less if you want to turn you firm into a Supreme Court practice. Although you may be able to hire an attorney with previous SCOTUS experience or even earn admission to argue before SCOTUS yourself, either route will be a sizable investment consideration. As for actually arguing a case before the Justices? Well, it just might be easier to join one of the super-elite firms who specialize in arguing before the Court. In that way, you're chances of having your petition heard will shoot to about 40%. Not quite the route you were looking for, but that's the breaks.

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