All Five Women Supreme Court Justices Speak

Imagine that someone assembled Bill Russell, Magic Johnson, Larry Bird, Michael Jordan, and Kobe Bryant to discuss how to win NBA championships.  The parallel to such a gathering, for those interested in appellate practice, was tonight’s seminar entitled “Appellate Advocacy in the New Jersey Supreme Court,” sponsored by the National Association of Women Lawyers (“NAWL”).  All five women who have served on the Supreme Court of New Jersey spoke at this gathering at the Bar Center in New Brunswick.  Retired Justice Marie L. Garibaldi, the first woman appointed to the Court, retired Chief Justice Deborah T. Poritz, the Court’s first and only woman Chief Justice, and current Justices Virginia Long, Jaynee LaVecchia, and Helen E. Hoens offered excellent advice to a crowd of over 150.

Many of the pointers were fairly standard.  For oral argument, be prepared, candid, and ready to follow the oral argument where it leads.  In brief-writing, be clear, concise and present the “story” (the facts) in the most appealing way possible.  Both orally and in writing, put your best issue first and get to the core of the matter right away.  But each Justice also had something to offer that went beyond the normal advice.

Justice Garibaldi, for example, emphasized the importance of maintaining credibility with the Court.  She urged oral advocates not to pretend that their positions do not all have downsides.  Failing to recognize that most cases are close, not “slam dunks,” will harm a party’s position with the Court.

Chief Justice Poritz mentioned her background as an English teacher in discussing briefs.  She found that briefs containing grammatical errors, typos, or structural problems had the potential to affect her view of the merits, rightly or not.  She also suggested that counsel read their briefs aloud as they are being prepared.  That, she said, may reveal discordances that are not evident from seeing the words on the printed page.

Justice LaVecchia emphasized that counsel must be ready to engage in a dialogue with the Court, as opposed to “speechifying” and expecting the Justices to sit mute.  She cautioned that advocates should be ready to address the policy implications of their positions.  “If the Court rules for you, where will your argument lead” in the next case?

Justice Hoens made a point that seemed obvious after she made it, but was not evident to a number of oral advocates that she has seen.  She often asks counsel “what is the principal rule of law that you ask us to adopt?”  A surprising number of advocates, she said, are not prepared to answer that question.  Yet, that is the heart of every appeal in the Supreme Court.

As the judge who has served the longest on appellate courts (27 years on the Appellate Division and Supreme Court combined), Justice Long had a number of valuable insights.  She said that the “dream” oral advocates waive the uninterrupted five-minute opening statement and dive right into the colloquy with the Court.  They also come to the podium with just a single sheet of paper or one index card, knowing that a pile of briefs or appendices will not help during argument.  Justice Long also recommended that counsel prepare a closing consisting of several lines, to tie everything together and end “on a high.”

Some of the presentations were leavened with humor.  Justice Garibaldi said that the most persuasive briefs were those that agreed with her own opinions.  Justice LaVecchia offered, as an emergency strategy, “when all hope is lost, don’t be afraid to beg.”  But Justice Long had perhaps the best line, and the best insight about humor.  There is no place for counsel to make jokes in the Supreme Court.  “Only judges are funny,” she said.

Since the program was sponsored by NAWL, there was some discussion about whether there are differences between male and female advocates in the Supreme Court, or between male and female judges.  All the panelists agreed that they did not perceive any material differences on gender lines.

Justice Long closed with the wisest single piece of advice.  “Love being before the Court” at oral argument.  “It shines through.”