How Much Does Attorney Experience Matter at SCOTUS?

View of the US Supreme Court Building on a bright Christmas Day
By Richard Dahl on July 29, 2019 6:00 AM

Nothing tops experience when it comes to lawyerly success at the U.S. Supreme Court.

That’s the finding – perhaps unsurprising - of a recent study by two political scientists who set out to measure how experienced lawyers stack up against inexperienced ones at SCOTUS.

Michael J. Nelson of Penn State and Lee Epstein of Washington University in St. Louis (where she’s also a law professor) concluded that experienced attorneys have a 14-percent greater likelihood of winning a case.

By “experienced attorneys,” the authors state that they are referring in large part to a group of lawyers who specialize in Supreme Court advocacy. The message, they say, is that no matter how effective the attorneys who handled the case at trial, litigants are better served by ditching them in favor of experienced Supreme Court litigators.

A List of the Best

So who, exactly, are these lawyers?

According to  an analysis in SCOTUSblog, the attorney who chalked up the most votes from justices between 2013 and 2017 was Paul Clement, a former U.S. solicitor general and current partner at Kirkland & Ellis, with 190.

Rounding out the top five are Neal Katyal, a former acting solicitor general, now a partner at Hogan Lovells, with 157; Seth Waxman, another former solicitor general, now a partner at WilmerHale, with 128; Stanford law professor Jeffrey Fisher, 122; and Tom Goldstein, a partner at Goldstein & Russell, with 107.

The Skills of the Trade

One of the reasons why experienced lawyers are successful at the Supreme Court is because they know the nuances of the Court and how to appeal to specific justices. No surprise, then, that three of the top five vote getters are former solicitors general.

It also stands to reason that a successful member of this elite club can afford to be judicious in selecting the cases they would agree to take before the Court.

And speaking of elite clubs, the authors also looked at where the experienced SCOTUS lawyers got their legal training and found a correlation. “All else equal,” Epstein told the New York Times, “graduating from a top law school increases the odds of winning by almost 13 percent.”

Nelson and Epstein report that the top Supreme Court attorneys command hourly wages that are about 15 times the average amount for a lawyer in the U.S. That can be a hefty price tag – but if they want to win, future SCOTUS litigants might want to pay the freight.

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