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Boodt: U.S. Supreme Court journey offers many lessons

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Indiana Lawyer Commentary


Last spring, after the 9th Circuit Court of Appeals denied USA Funds' petition for rehearing en banc in an important student loan bankruptcy case, my colleagues Joni Anderson and Julie Ragsdale recommended that USA Funds file a petition for certiorari with the Supreme Court of the United States. My initial reaction was that such a petition would cost a lot of money and have little chance of success. My colleagues would not accept that, emphasizing the decision's importance to our business interests, a split among the federal circuits, support from our regulator - the U.S. Department of Education, some troubling dicta included in the 9th Circuit's opinion, and the application of the holding of the case outside of federal student loans to other debts that are not dischargeable in bankruptcy. Being at least wise enough to recognize their logic and the strength of their convictions, but still under the impression that our efforts were somewhat perfunctory, we nonetheless were off on a journey that has been fascinating; certainly not the usual fare for three in-house student loan attorneys.

Petition for certiorari


Being new to the process, we didn't know that the first decision is who to hire to draft the petition. We have since learned that if you want to increase your chance for success, you are supposed to hire experienced Supreme Court practitioners. The logic is that these practitioners once were Supreme Court clerks, know the code words and can frame the issue in ways more likely to grab the Supreme Court's (or a clerk's) attention. At any rate, we didn't know better and allowed our appellate counsel to draft the petition, encouraged other participants in the federal student loan industry to file amicus briefs, and argued that our case involved matters important to the United States in addition to a split in the circuits. In the process, we did learn that the Office of the Solicitor General rarely weighs in on a case until it has been accepted by the court. Even though the Department of Education could not convince the Solicitor General to file an amicus brief at the petition stage, we successfully persuaded two industry participants and the bankruptcy counsel for the National Association of Attorneys General to submit a brief, which was expressly endorsed by 11 states.

Merits briefing


On June 15, 2009, we learned the Supreme Court granted our petition. After a few moments of elation, it hit us that we now needed to prosecute a case before the highest court in the land. We were definitely in uncharted territory. While there is plenty written on Supreme Court practice, including a helpful guide published by the court, we did not find any resources about how a three-person legal department in Fishers, Ind., should manage the process.

The first question was whether we needed additional help from someone experienced in Supreme Court practice. Easy enough: A resounding yes. Upon the recommendation of a well-respected Washington attorney, two former U.S. Supreme Court clerks were added to our team. One offered mastery of judicial insights and the other contributed invaluably to our written briefs. Each of our two law firms brought distinct experiences, strengths, and personalities to the team. As general counsel, the challenge for me was to define the roles and responsibilities during briefing and oral argument preparation, and to manage the personalities and interworking of our team of bright and seasoned lawyers.

One of the major differences in Supreme Court merits practice is the prevalence of amicus parties. Once cert was granted, the scope of potential assistance increased greatly. Much time was spent in the days after cert was granted strategizing who we wanted to file amicus briefs on our behalf and who we did not. We began an active campaign to solicit entities for support. Some were immediately helpful; others never called us back. In total, eight amicus briefs were filed. Interest in our little student loan bankruptcy matter had grown substantially.

The opportunity to persuade the Solicitor General to file a brief in support of USA Funds was critical. We knew that having the United States weigh in against our position would present an almost insurmountable hurdle. Prior to making a decision on which side to support, if any, the Solicitor General meets separately with counsel for the petitioner and respondent. We left the meeting feeling positive, but were not informed of the government's position prior to the filing of the Solicitor General's brief. Reading that the United States did support USA Funds certainly gave us encouragement.

A related issue is what to do about unhelpful amicus briefs. Notwithstanding Supreme Court Rule 37, it turns out very little. The plain text of the rule indicates that the petitioner and respondent must agree, or the person seeking to file the amicus brief must seek leave of the court, which is not favored. The practice, however, is to routinely grant requests from almost anyone who wants to file an amicus brief so as to not seem as if you are running from a position. Also, we learned the court more freely grants requests to file an amicus brief than the rules would indicate.

The actual briefing on the merits differed more from appellate practice than we initially thought. One of the major differences was that we no longer focused on the decisions of the various circuits. In fact, once the petition for certiorari is granted the Supreme Court seems to care little about the lower circuit opinions. Instead, the Supreme Court looks to what makes sense as the law of the land, not just in bankruptcy but also in other areas of the law. As our case developed over the summer and fall, our arguments moved away from specific references to the bankruptcy code and rules to global tenets of statutory construction and principles of finality, waiver and voidness. Our citations changed from federal circuit courts to mostly Supreme Court decisions.

Oral argument

Even though I hold to my belief that briefs decide many more cases than do oral arguments, oral argument at the Supreme Court level does seem to get everyone's attention. We had many individuals privately solicit us to argue the case.

Generally a party is given 30 minutes for oral argument. In our case, the Office of the Solicitor General requested 10 of our 30 minutes to argue on behalf of USA Funds. After thinking about it for a few seconds, we acquiesced to the request even though they would take two of our four seats at counsel table, including mine.

Now that is taking one for the team.

As was true during the briefing stage, the emphasis of our argument continued to evolve as we prepared for oral argument. We decided to focus on well-known principles of statutory construction and what outcome makes sense rather than spend too many of the few minutes we had on the intricacies of the bankruptcy process. The goal was to sift the case down to a few sentences and to have succinct answers to questions likely to be asked by the justices. To prepare for oral argument, we had four formal moots. Each panel focused on different issues. In our best moot, the panel did such a good job of role playing that often we could pick out the justice. In the end, I think that four was about the right number. For those looking to save a little money, Georgetown Law Center offers a well-regarded free program to help prepare counsel. The moot court room at Georgetown mimics the actual Supreme Court courtroom right down to having the same carpet and clock. Not sure that helps, but a nice touch.

Dec. 1, 2009, will be a day I long remember. Strangely, one of my biggest worries that morning was that all of our guests made it to the court and had reserved seats waiting. The whole process of reserving seats is convoluted so there was reason to worry that someone would have not been included on the all-important list. The courtroom of the Supreme Court, while not huge, is something to see - high ceilings and massive marble pillars - with the lectern only a few feet from the chief justice. Because the justices are so well known, it felt odd to see them in person and so close. For those who have not attended an oral argument of the Supreme Court, you must include it on your bucket list.

Our 20 minutes before the court went pretty much to plan. We successfully predicted almost all of the areas of inquiry. Justice Antonin Scalia, consistent with his reputation as a curmudgeon, scolded the attorney arguing on behalf of the Solicitor General for not having one of the key statutes more handy in the record. Justice Ruth Bader Ginsburg did a bit of teaching to Justice Sonia Sotomayor about not interrupting a senior justice. While the justices may not be experts in bankruptcy law, they certainly were well-prepared. We were impressed that oral argument is serious people having a serious discussion about serious matters.

Now we wait for the opinion. The experience has taught us how a case changes once you are before the Supreme Court. What was once a procedural bankruptcy matter becomes a discussion as to the tensions between process and finality, when litigation begins and ends, waiver and voidness. Maybe most surprising, we were taken aback by how many people and entities were engaged in and followed the case. We certainly were not used to being written about in trade journals, bankruptcy publications, and even the popular press - including appended less-than-kind comments from readers.

Argument day ended on a surreal note. Driving home from the airport that night, with a big full moon in my front windshield, I turned on National Public Radio. Nina Totenberg was giving a blow-byblow recount of the interplay between the justices and counsel in our case. I felt like an athlete listening to sports radio on the way home from the game. Hearing Nina Totenberg talk about one's case is about as good as it gets.

Well, it would have been even better if she'd favored our side.

David Boodt is vice president, general counsel, and corporate secretary for USA Funds. The opinions expressed in this column are the author's.

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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