An Appeal for an Appeals Lawyer

July 17, 2008 11:16 AM

How to find an appeals lawyer who will want to take a (probable win) appeal to the US Supreme Court? Like, do they, um, hang out on the 'Net somewhere?

A friend of mine is the defendant in a CT State civil suit she is appealing to the US Supreme Court. The law under which she was prosecuted is extremely vaguely-worded and tends to trample on basic constitutional rights. So far this law has been used only twice, in each case to "smack down" people who have ticked off the State of CT. Lawyers, not just my friend and my (biased) self, agree on these points.

How can she find a good lawyer willing to take the appeal on a limited budget, hopefully for the chance of an impressive win in the Supreme Court? Or is that really something lawyers want? Maybe someone young and hungry? Countersuits would naturally follow a successful appeal, should the lawyer be interested.

She could also use legal counsel on a budget, of course.

Thanks, folks.

posted by Shane to law & government (26 comments total)

has the case gone through appeals court yet? i don't think you can go straight to the supreme court.
posted by thinkingwoman at 11:21 AM on July 17, 2008

It's probably worth it to call the ACLU. At worst, they'll be able to direct you to an attorney of the sort that you're looking for. At best, if the law is that outrageously bad, they might just pick it up and run with it, gratis.
posted by Citrus at 11:24 AM on July 17, 2008

There are a lot of questions raised by this post and hopefully you can unravel some. The biggest question is the procedural history up to this point. She's going to have exhaust her state court options and she'll probably have had counsel for quite some time by then. If she's unhappy with a trial verdict, she can't just jump to SCOTUS. Your post makes me wonder if there's even been a conclusion trial, to be honest.

The Supreme Court doesn't just throw out state laws it doesn't like, but needs questions to be presented in a specific manner. There's almost no way she can get an interlocuatory appeal heard, so she's going to have to go through with the trial, appeal to all the relevant state courts, and take those decisions and go to SCOTUS. That final step is called filing for cert and she has a very short time frame in which to do it. The Supreme Court bar has shrunk in recent years, as there are fewer and fewer top advocates, and on top of that, the Court is hearing fewer cases then ever before, so the odds of getting something in front of the Court are extremely low.

If she needs counsel, I'm going to guess that she's nowhere ready to go to the Supreme Court, but her best chance, given all that and being in CT, is to have whatever lawyers represented her appeals contact the Yale Law School Supreme Court clinic. A number of top law schools have clinicals like this one, which take pro bono cases, file for cert, and sometimes even secure representation. If she can get someone there to notice her (and quickly) she might have a chance. To be honest, it sounds like she needs a good lawyer first and an understanding that the process is going to take years and is most likely not going to end in Washington.
posted by allen.spaulding at 11:25 AM on July 17, 2008

*er, conclusion of her trial.
posted by allen.spaulding at 11:25 AM on July 17, 2008

I believe she lost her case and a State appeal already, thinkingwoman. I'll contact her to be sure. She has had enough legal counsel that she wouldn't be going to the US Supreme if it weren't the next step. She has been advised to file an appeal there and is working on that, although that is no guarantee they will agree to try the appeal. Thanks.
posted by Shane at 11:27 AM on July 17, 2008

and finally, there are no prosecutors in civil law suits, so your friend wasn't exactly prosecuted. Nor is there such a thing as a probable win at the Supreme Court. Like I said, the odds of getting cert granted are so small and the process so long, it may be time to think of other options. IANYL, etc.
posted by allen.spaulding at 11:27 AM on July 17, 2008

ACLU is your best bet.
posted by rokusan at 11:29 AM on July 17, 2008

She is going to have to go through the 2nd Circuit before she can go SCOTUS. It doesn't sound like the appeal has even been brought up to the federal level yet.
posted by rhizome at 11:55 AM on July 17, 2008

If the suit is proceeding through state court, the federal appeals courts have no jurisdiction, and there's no reason it would need to go there. SCOTUS can hear appeals from final judgments of the highest court in a state.
posted by sinfony at 12:07 PM on July 17, 2008

The ACLU has a branch in every state, that's a good place to start: here's the ACLU of Connecticut website.
posted by Solon and Thanks at 12:11 PM on July 17, 2008

(as I understand it, they're not able to take too many cases at once, and are very frequently approached - so don't expect too much. I'm familiar with another state's branch, YMMV)
posted by Solon and Thanks at 12:14 PM on July 17, 2008

Hmm, now I'm thinking that whomever is giving lawyerly advice to Shane's friend might have meant the CT State Supreme Ct., and someone along the line misunderstood what the next steps might be.
posted by rhizome at 12:22 PM on July 17, 2008

Call your local law schools (or check their websites). Most of them have legal clinics which can either take the case, or refer her to local resources who might. She should also call the local bar association (city, county and/or state) and ask same. When looking at law school clinics, she should only really bother with civil rights or appellate clinics or those that handle the area of law this is.

/broken record
posted by crush-onastick at 12:24 PM on July 17, 2008

Assuming your friend has already lost in the state supreme court (necessary for a state case to have the US Supreme Court as the "next step"), and assuming your friend's case is actually as solid as you describe, it could conceivably be possible that she could get some high-level assistance, thanks to Tom Goldstein and what some have started calling the "Goldstein Effect." See also this article (search down for the word "knack" and read the few paragraphs starting there).

This is all a whole lot of supposition though, and her best first bet is probably to contact not just the Yale Law School Supreme Court Clinic mentioned above, but also the clinics at Texas, Virginia, Stanford, NYU, and Harvard. At this stage, being geographically close is less important than finding someone actually willing to write you a petition for certiorari.
posted by Partial Law at 12:30 PM on July 17, 2008

a (probable win) appeal to the US Supreme Court

If it is the U.S. Supreme Court your friend is talking about, keep in mind that few people in the U.S. would have the expertise to predict with any confidence which cases the court will agree to hear, much less which cases are likely to be winners.

The Supreme Court refuses to review lots of cases that are potentially meritorious. I.e., you may have legions unbiased lawyers who agree that a state supreme court got it wrong, but the Supreme Court refuses to take the case.

So even if your friend's case seems like a slam dunk winner for her, there is no guarantee that the Supreme Court would take the case ... even if it were ripe for Supreme Court review.
posted by jayder at 1:23 PM on July 17, 2008

The Supreme Court agrees to hear fewer than 1 percent of the cases filed before it. The Court tends to choose cases where there are conflicts among multiple lower courts about an issue or where the issue it is deciding will set a wide-ranging precedent. The mere fact that a law is unconstitutional is often not enough; there are so many "good" cases by that standard that the Court couldn't possibly hear them all.

Contact an experienced constitutional attorney, one who has argued before the Court before, preferably one who specializes in the particular area of constitutional law you're attempting to argue. Ask honestly whether or not your friend has a viable case, what the fight is likely to look like, and what the payoff is likely to be if you win. Then make a decision about how to proceed.
posted by decathecting at 1:33 PM on July 17, 2008

The chances of getting the US Supreme Court to grant cert on a case involving a state law that has only been applied twice are likely going to be pretty small. The Court is expected to issue fewer than 70 opinions this year, which is tied with last year in the lowest number of opinions issued since 1953. [Graph] Even if next year's cert numbers go up, it would be somewhat shocking to me if they granted cert on a little-used state statute.

Also, with regard to the "basic constitutional rights" question, note that this Court had no problem allowing police to enter people's private homes without knocking, so long as they had a warrant. I'm sure there are other examples.

So. Not to be overly discouraging. But your friend is looking at some pretty bad odds.
posted by onlyconnect at 1:45 PM on July 17, 2008

The chances of getting the US Supreme Court to grant cert on a case involving a state law that has only been applied twice are likely going to be pretty small.

Thanks.

Yes, it's a "cert."

To clarify things as much as possible, she lost a civil case, appealed, had the case chosen by the State Supreme Crt (bypassing the Appeals crt), and lost.

Now she is requesting the U.S. Supreme Court review the decision. This request is named a Petition for Writ of Certiorari or "cert." The Supreme Court can refuse to take the case and receives thousands of "Cert Petitions" per year, and denies all but about one hundred.
posted by Shane at 4:14 PM on July 17, 2008

Although you've noted that the case has been through the state supreme court, I feel compelled to point out that a petition for review in the state supreme court, at least all the ones I've practised before, is also call a petition for a writ of ceriorari. Or "cert" in the jargon.
posted by crush-onastick at 4:34 PM on July 17, 2008

Well, whatever's going on, she should make any financial decisions on the basis of the very low odds that the Court will hear her case.

That is, it's not really smart to spend $5000 pursuing a one-in-a-hundred chance at reversing a judgment against her of $25000 -- she's 99% likely to just be out $30K instead of the original $25K.

But that also means that unless a house worth of money or prison time are on the line here, it's probably smarter for her to just take her lumps and move on than to go even deeper into the hole fighting it, or to instead spend that money in the political sphere supporting candidates who dislike that law if she wants to tilt at windmills somewhat more effectively.

She could always just be one of the zillions of pro-se petitioners, unless Court rules have an actual indigency test for that.
posted by ROU_Xenophobe at 4:43 PM on July 17, 2008

Who are these lawyers telling her the case is a slam dunk? If they think it's so solid, why aren't they taking it? It seems like those who are familiar with the case would be in the best position at least to steer her towards someone who could help.
posted by JennyK at 4:43 PM on July 17, 2008 [1 favorite]

And if it's such a slam dunk, why has she lost twice?
posted by sinfony at 5:29 PM on July 17, 2008

The fact that you are resorting to AskMe for suggestions on finding an appellate lawyer suggests to me that she has been pro se so far ... i.e., she represented herself. If she had attorneys already, surely her attorneys would be assisting her with finding appellate counsel.

So, two important questions:

*Did she represent herself at the trial and state supreme court level?

If she represented herself, my thought is that she probably did not make a record and preserve issues well enough to have any chance of prevailing on the U.S. Supreme Court appeal, even if in the best of circumstances it would be a case that the U.S. Supreme Court would be interested in taking. A lot of times, appeals are lost because the litigant failed to preserve issues for appeal, which may seem like "a technicality" to laypeople but makes sense if you understand the different roles of trial and appeals courts.

*Would you be willing to give us the citation to the state supreme court opinion that ruled against her?

If she's seeking U.S. Supreme Court to review the case, clearly she has no qualms about her case and its issues being public, so I don't see why you can't give us the cite. There are a lot of lawyers on Metafilter, and giving us the citation would do two things: (a) she might get some candid insight into her chances of getting the U.S. Supreme Court to review the case, and (b) she might be able to get some contact info of attorneys who might take the case.
posted by jayder at 9:33 PM on July 17, 2008

*Did she represent herself at the trial and state supreme court level?

Hell no. But finding a lawyer for the US Supreme is working out to be a different ballgame.

*Would you be willing to give us the citation to the state supreme court opinion that ruled against her?

I'll ask her. Thanks.
posted by Shane at 9:26 AM on July 18, 2008

If you're not a lawyer, it's nearly impossible to know what the chances are of winning a Supreme Court reversal. "Unfair" or even "outrageously unfair" just isn't enough.

Also, at the appellate level, the issue changes. It's no longer "Did she get treated unfairly?" but "Did she get a fair chance to make her case?" Unless you can point out a defect in how the case was tried, there's almost no chance the Supreme Court will reverse, or even take the petition for cert.

There are no contingent fees for Supreme Court appeals. Lawyers charge by the hour, and Supreme Court lawyers don't come cheap. Figure $50,000 even to clear your throat. If your friend can't foot that kind of bill, her only hope is to find pro bono representation, and for that you go to large law firms, bar associations and law schools.

At this point, go to the bar association or other pro bono source (or pay for a consultation with an appellate lawyer) and get your chances assessed.

Deadlines for appeals are short. Get on it right away.
posted by KRS at 11:59 AM on July 18, 2008

Supreme Court lawyers don't come cheap.

I have been under the impression that if you have a case that is granted cert, qualified lawyers will fight for the chance to brief and argue the case for free. The prestige of arguing a case before the Court --- and the boost to lawyers' existing practices --- is worth it. I think I recall hearing about an appeal filed by a criminal defendant in which the Supreme Court granted cert, and the defendant's trial lawyer was determined to argue it himself, much to the dismay of white-shoe lawyers who were seasoned Supreme Court advocates. These veteran advocates came out of the woodwork offering to brief and argue the case for free.
posted by jayder at 1:35 PM on July 19, 2008