By Dr. Ken Broda-Bahm:
(Used by the kind permission of Art Lien, courtartist.com)
Over the past couple of weeks, I've been fixated on the historic oral arguments before the Supreme Court focusing on the healthcare law. As I've reviewed the transcripts and audio recordings of the unprecedented six hours of oral argument, I've been struck by the skills of one advocate in particular. In what I expect will be the conclusion to this series, I want to focus on some lessons learned from Paul Clement, who represents the twenty-six states challenging the constitutionality of the Affordable Care Act. I hasten to add that I wasn't impressed by Mr. Clement based on the position he advocates -- in fact, I personally hope for a constitutional solution that does not involve throwing as many as thirty-two million Americans out of the health insurance market, but I was impressed by the quality and style of argument from the states' side.
It is no surprise that Paul Clement, the former Solicitor General and current Bancroft PLLC partner, would turn in a superior performance. After all, he is a Supreme Court superstar, scheduled to argue seven cases before the Court this term alone. Evan Tager of Mayer Brown even called him the "LeBron James of law" due to the bidding war that ensued in 2008 when he left government service. Observers tend to agree that he has lived up to the hype. Veteran Supreme Court litigator Carter Phillips, for example, noted in an interview for Above the Law that Clement "did a spectacularly good job" and turned in "a very special performance" against the Act. So, focusing on the Court's session on the individual mandate, I'd like to draw three lessons from the example of Mr. Clement's argument: Prepare, prioritize and pivot. Prepare extensively, prioritize the judge's question over all else, but pivot back to your own talking points wherever possible.