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Students' High Court Work Will Live Beyond Litigation

December 2, 2008 | by Pat Vaughan Tremmel
CHICAGO --- Every year students in the Northwestern University School of Law clinic go to Washington, D.C., to watch their instructor Carter Phillips, one of the country's most respected Supreme Court litigators, argue before the court -- most recently about Paris Hilton's and Nicole Richie's use of dirty words during prime time.

One year Supreme Court Chief Justice John Roberts led a clinic class in which he shared tips from working both sides of the high bench. And, all year long, students work closely with Sidley Austin LLP lawyers, preparing cases that, if accepted by the Supreme Court, will live in the law long beyond the litigation.

Now in its third year, the Supreme Court Clinic, part of the Appellate Advocacy Program in the Bluhm Legal Clinic at Northwestern Law, is giving the 10 or so second- and third-year students who participate in the course each year experiences of a lifetime.

Students assist lawyers in Sidley Austin's Supreme Court pro bono practice, made up mostly of criminal cases. Now in its 15th year, the practice helps federal defenders and private counsel think strategically about which cases would be the most likely to succeed in court and assists them in the preparation of their cases. Students spend significant time drafting briefs that argue why the court should take a case or, after the court decides to do so, why the case meets the stiff legal requirements to reverse lower-court decisions.

The classes are taught mostly by Sidley lawyers, including Phillips and Jeffrey Green, partners well known for their high court expertise. Deputy Solicitor General Michael Dreeben was one of the guest lecturers who regularly share their expertise with the budding litigators, and last year, during a trip to Washington, D.C., the students met with Supreme Court Justice Clarence Thomas. Acting as judges, attorneys, defendants and witnesses, the students also participate in moot courts, where they test their own skills as well as those of the attorneys they are preparing for their big day in court.

So far, four of the "cert petitions" that the students worked on have been accepted by the Supreme Court. (A Petition for Writ of Certiorari is a brief filed by a losing party that asks the Supreme Court to review the decision of a lower court.) Every year, the court accepts between 70 to 80 cases from the approximately 7,000 certiorari requests that are submitted.

Already this term one of the four cases, Chambers v. United States, was argued on Nov. 10 by Sidley partner Rob Hochman. The issue is whether Deondry Chambers' previous failures to report for confinement (he had to go to jail on weekends) constitute a "violent felony" on his record and make him a career offender. Several federal courts had disagreed over the issue, and the Supreme Court took the case to clarify the law.

Chambers and the other cases that the students work on offer relatively rare first-hand lessons about the sound, analytical principles that must be employed to convince the Supreme Court to overturn lower-court decisions.

"One of the most fundamental lessons that students learn in this clinic is that the Supreme Court is not an error-correcting court," said Sarah O'Rourke Schrup, clinical assistant professor and director, Appellate Advocacy Program, at Northwestern Law. "Even the most egregious decision by a lower court doesn't necessarily mean the Supreme Court is going to review it, unless the case also raises important and undecided legal issues."

The advocacy principles the students learn translate to all types of legal work, and that is especially true for advocacy at the Supreme Court. "Typically, the issues we deal with have already been the subject of a great deal of thought, argument and dispute," Schrup said. "That's why they are so fascinating -- and such hard work. Just getting the court to review a case requires nuance and unique skill."

"The court is usually pretty gentle in suggesting that another court has made a mistake -- but less so where the error is longstanding or the analysis is especially weak," Green added. "And then there are rare cases like Chambers, where the Seventh Circuit reversed course before the Supreme Court even heard argument."

The court has granted review in two clinic cases this term, Michael Rivera v. the People of the State of Illinois and Dean v. United States. Rivera has to do with an erroneously seated juror, and Dean concerns whether an increased mandatory minimum sentence is appropriate for a person who accidentally discharges a weapon during a robbery in which no one is hurt. Northwestern students drafted the cert petitions and now are hard at work on the merits briefing.

"These students are helping to shape the law of the land," said Green, who delights in hearing from clinic alums about prominent references to cases they worked on while in the Supreme Court Clinic. "The students work extra hard because they know what they are working on will often go right into the legal textbooks."

The clinic's first granted cert petition, Gall v. United States, dealt with how much discretion district court judges have in fashioning below-guidelines sentences. In October 2007, Green argued the case, and, in December 2007, the court gave the Northwestern students and Sidley lawyers the ultimate victory, holding that the sentencing judge didn't abuse his discretion in granting Brian Michael Gall probation instead of imprisonment. Gall was discharged from probation within days of the ruling.

"Our students are engaged in a teaching and learning experience of immense value to Northwestern and to the lawyers and litigants who are served by the Supreme Court Clinic," said Thomas Geraghty, associate dean for clinical education and director of the Bluhm Legal Clinic at Northwestern Law. "The Supreme Court Clinic has been a wonderful addition to the Bluhm Legal Clinic community."
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