As mentioned last month, former Chief Justice Tani Cantil-Sakauye recently said that her “biggest rule” about oral argument is “do not split time,” meaning don’t take advantage of the opportunity afforded by rule 8.524(f) to have more than one attorney argue for the same side in the Supreme Court. There might be some exceptions to that blanket advice, however.
One exception is for amicus counsel, writes AJ Kutchins in an email.
Kutchins, a Supervising Deputy State Public Defender, says about his appearance as amicus counsel in two relatively recent Supreme Court criminal cases, “I really believe . . . the argument[s] we presented made a difference.” He adds, “I am aware of a number of other cases in which the arguments of amicus played a key role and others in which counsel was simply not up to presenting all the needed angles of the case.”
In one of the two Kutchins cases, he says “counsel split time with me because his co-counsel (who was supposed to do the whole argument) was suddenly hospitalized; I recall answering a key question . . . that my colleague could not.” In the other case, where Hutchins needed the court’s permission to argue because defense counsel opposed the Public Defender’s appearance (see: Arguing with friends), “we were arguing a theory that counsel abjured but that the Court ended up adopting.”
An amicus exception to the don’t-split rule seems reasonable in certain situations. I’ve participated in four Supreme Court arguments in which I was ceded time as amicus counsel or did the ceding to amicus counsel. My guess is the amicus arguments in those cases didn’t affect the court’s opinions, but neither did they hurt the oral presentations.
In 2010, we wrote, “splitting an argument is often a mistake because it dilutes the parties’ ability to answer the Court’s questions meaningfully and the justices don’t particularly like it.” But we also then followed that up with this: “That said, in some cases it may be worth it to allocate ten minutes to counsel for amici to allow them to address a case’s broader policy implications.”
