This morning the Supreme Court is hearing a case on DACA. The consolidated cases ask whether the termination of the DACA program violated the Administrative Procedures Act.

People slept in the cold to be in line so that they could hear some or all of the oral argument in the case.  This is a conversation that I have with clients routinely. The most important work in any appeal is the writing of the briefs. I have no evidence of how many people standing in line to hear oral argument have read the briefs (link here: https://www.supremecourt.gov/docket/docketfiles/html/public/18-587.html) but I suspect it is very few.  The focus for most clients is on oral argument.

There are debates about how much oral argument matters. But the truth is that there is no one answer and instead it is case specific.  In some cases oral argument will make a difference and in others it will not. But in every case the brief is the preponderance of the argument and the most important tool to persuade the Court.

I encourage clients and family members to attend oral argument, but what I really want from clients and family members is to read the briefing. Start with the Appellant’s brief, read the Appellee’s brief, and then if there is one read the reply brief. Read them in that order because the briefs are a stand alone conversation.

Perhaps while the people are standing in line to get into the Supreme Court someone should pass out copies of the parties’ briefs to the spectators.

 

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