It’s Like Speed Chess on Nine Boards at Once
by J. Stephen Barrick, Hicks Thomas LLP
Arguing a case before the U.S. Supreme Court is an experience that few lawyers ever have. Even for appellate specialists, the opportunity to argue in the highest court in the land is extremely rare. It is therefore special that one of our own – Aaron Streett of Baker Botts LLP – recently got that opportunity.
On March 5, 2014, Aaron presented oral argument on behalf of the petitioner in Halliburton v. Erica P. John Fund – a securities fraud class action case. Aaron’s client challenged the continued validity of the Court’s landmark case upholding the “fraud on the market” theory of reliance, Basic v. Levinson.
It was a weighty case by any measure. But it was also Aaron’s first time to present oral argument in the Supreme Court, and he was up against one of the country’s most well-known Supreme Court advocates, David Boies. And, at the end of the day, Aaron’s client walked away with a partial victory.
I recently had an opportunity to ask Aaron a few questions about his experience.
How did you get involved in this case?
Baker Botts has been lead counsel for Halliburton since shortly after the complaint was filed. I was brought into the case when it reached the Supreme Court the first time, back in 2010. My first assignment was to draft the Brief in Opposition to the Erica P. John Fund’s cert petition. I have been the lead appellate lawyer on the case since that time.
Are securities fraud class actions a particular specialty of yours?
No. I am an appellate generalist.
What made the case a good one for Supreme Court review?
At the end of the 2012 Term in the Supreme Court’s Amgen decision, four Justices suggested they were willing to reconsider the seminal securities decision of Basic v. Levinson. Our cert petition squarely presented the Court with that opportunity. There was also a circuit split on our second question presented: Whether a defendant may rebut the Basic presumption of reliance at the class certification stage with evidence that the alleged misrepresentations did not affect the stock’s market price.
There were a lot of amicus briefs filed in this case – 11 per side. Were you anticipating that much interest?
Yes, the questions presented are important to investors and companies alike.
Did you have to proactively seek out amici? How did you go about that?
At the cert stage, we reached out to potential amici to make them aware of our forthcoming cert petition and explain the issue and arguments we would be making. Once cert was granted, the remaining amici came out of the woodwork.
What was your reaction when you found out that cert had been granted?
I was at lunch in Washington, D.C., with Judge David Sentelle of the D.C. Circuit, the judge for whom I clerked. I was trying to be polite and not check my phone during lunch, but one of my colleagues on the case, Shane Pennington, who was also a Sentelle clerk, checked his phone and saw the news. We were surprised and excited, and it was a neat moment to share with the Judge who set our careers on track.
Appellate lawyers have come to expect some pretty drawn-out timetables, but in the Supreme Court, things can move pretty quickly. You filed your petition on September 9; the Court granted cert on November 15, less than three weeks after you filed your reply to the Respondents’ opposition; your brief on the merits was due 45 days after that; oral argument was scheduled for less than three months after you filed your brief; and the Court issued its decision, with three separate opinions, just three and a half months after that. What was that like?
It was intense. I felt like I spent most of my time over those months on this case, which made it challenging to keep up with other matters. One has to have a very talented and hardworking team to manage the research and drafting and argument preparation on such a compressed timetable, and we had that. The reply brief was especially tricky because we had to respond not only to the Fund’s 50-page merits brief, but also to 11 amicus briefs, including the brief of the United States’ Solicitor General.
Merits briefs, as you know, can be a pretty big job. Was it difficult to get that done in 45 days?
It was challenging. These issues were incredibly complex, involving economic theory, the specialized area of securities law, as well as the need to argue stare decisis. Again, we had a terrific team working around the clock. The biggest hurdle was coordinating all of the information and boiling it down into a persuasive brief.
How many people were involved in preparing your brief?
At what point were you tapped to argue the case?
Shortly after cert was granted.
That was obviously a tremendous honor, but it was also an awesome responsibility. How did you feel at the time, knowing you were going to be the one standing there in front of “the Nine”?
I was humbled and a little overwhelmed. It’s daunting enough to argue any case in the Court, but it was particularly unusual to have such a significant case as one’s first argument. That said, having clerked at the Court and having argued a couple dozen appeals in other courts, I felt confident that I could get prepared and ultimately turn in a solid performance.
Can you describe what you did to prepare for oral argument?
Re-read the briefs, the key parts of the record, and all the potentially relevant cases. Identified 3-4 key points to emphasize and refined different ways to articulate them. Drafted anticipated questions and answers. Identified various further research topics and questions for members of the team. Participated in four moot courts. Practiced questions and answers ad nauseam. Spent a lot of time discussing answers and overall strategy with my appellate colleague and second-chair on the case, Evan Young.
At oral argument, you were up against one of the most high-profile Supreme Court advocates in the country, David Boies. Did that affect your preparation?
You say you moot-courted four times. How did the anticipated questioning compare to the actual thing?
The moots predicted all but two questions.
How did your answer to those go?
One question was a hypothetical posed by Justice Breyer about applying the presumption of reliance to an international contract dispute decision he had just announced that morning. Following standard advice about how to answer Justice Breyer’s questions, I picked a part of the question that I understood and tried to answer it. The other question related to our fallback argument but seemed to be very tangential. I briefly answered it and pivoted to a point I wanted to make.
So, you arrive at the Supreme Court building the day of oral argument – what’s the first thing you do when you get there?
Head up to the Lawyers’ Lounge and try to relax.
What sort of check-in process does the Court have?
Arguing counsel meet at a desk in the lower level of the Court and are escorted upstairs to the Lawyers’ Lounge. In the Lawyers’ Lounge, the Clerk of Court gives a briefing to arguing counsel about what to expect during the argument.
Was there anything about it that was surprising or unexpected?
We were told to wait to be escorted into the courtroom, but nobody came to get us. Finally, Mr. Boies and I decided we should start wandering in. We made it to counsel table at 9:58—a little too close for comfort.
How long before your scheduled time for oral argument did you arrive?
About an hour and a half.
Every practitioner has his or her own way of gearing up for argument. What did you do between the time you were checked in and the actual argument?
Prayed, drank a lot of water, and practiced my opening a few times. Other than that, I just tried to enjoy the experience and conversed with colleagues and other acquaintances who were in the Lawyers’ Lounge.
What kind of reception did you feel like you got from the Court’s justices?
It was hard to know what to expect in this case, since we had a very aggressive opening position—asking the Court to overrule a leading precedent—and a fallback position that was likely to divide the Court along typical lines. Most of the Justices seemed skeptical of overruling Basic but open to our fallback position. It was a pretty hot bench—I got 39 questions in 30 minutes—but nothing out of the ordinary in terms of the tone or pace of the questioning.
One of the third-party accounts of the argument made it sound like you got pummeled with hard questions while they just sat and listened to Boies talk. Did it seem like that to you?
Mr. Boies got his fair share of hard questions, but he did get fewer overall questions than I did. I was a little surprised by that.
What was the most memorable moment about oral argument for you?
Probably being able to conclude my rebuttal argument with a strong closing just as the red light came on. There is no countdown timer at the Court, which makes it quite difficult to time one’s closing. I also received an infamous two-minute hypothetical question from Justice Breyer, in which he referenced an opinion he had just handed down that morning.
The Court’s ultimate decision was a bit of a mixed bag for your client. Was the Court’s decision a surprise?
We were very pleased to prevail unanimously on our fallback argument, resulting in a vacatur of the lower courts’ decision to certify the class. The Court’s unanimity on that point was quite surprising, because a closely-divided Court had ruled for the plaintiffs on a similar securities question the preceding Term. We were not surprised that the Court declined to overrule Basic, especially after hearing the Justices’ questioning at argument. That would have been the securities-law equivalent of overruling Roe v. Wade. By accepting our fallback argument, the Court alleviated some of the worst problems with how Basic was being applied by the lower courts.
You clerked for the Court about 10 years ago for William Rehnquist. Did you feel like the Justices recognized you?
I am acquainted with a couple of the Justices, but they treat all counsel the same, with very few exceptions.
Was there any ceremony or process at the Supreme Court that was special or unusual?
Yes, the Court is the only U.S. appellate court of which I am aware that issues its decisions in open court. On the morning of my argument, the Court issued opinions in three cases. The authoring Justice reads a summary of his or her opinion from the bench. I always enjoyed watching this as a clerk, but as an advocate waiting to argue it only served to heighten the tension.
Do you feel like you learned something new about oral argument from this experience?
Yes, I experienced firsthand how different arguing in the Supreme Court is from any other court. The rapidity and quality of the questioning is unmatched and the demands of economy and strategy in answering those questions effectively is analogous to playing speed chess on nine boards at once. I just hope to continue to improve with each argument, as it is a skill that can only be sharpened with experience.
What about practice before the Supreme Court in general?
Practice before the Court is unique by virtue of the Justices’ location at the pinnacle of the third branch of government. Particularly where the Court is being asked to overrule an important precedent, the Court considers a lot of factors that are not “legal” in the strict sense of the word, including the Court’s institutional legitimacy and its relationship with Congress. I was also struck by the media and public-opinion battle waged in connection with the case.
Finally, and most important, what about the storied quill pen? Did you get one of those?
Yes, all four lawyers at counsel table get one. So this was actually my third quill, although this one is certainly more meaningful to me than the earlier two.