Supreme Court to Hear Law School Clinic Case Watson
Third-year law student Matt Madden was trolling through the Web site of the U.S. 5th Circuit Court of Appeals last summer, searching for potential cases for his Supreme Court Litigation Clinic, when he stumbled across something that he thought might make the justices take notice.
Louisiana defendant Michael Watson sought to buy a gun from a federal agent, who wanted drugs in return. Watson was busted not only on drug trafficking charges but also for "using a firearm in furtherance of drug trafficking," which in the end tacked on nearly 10 years to his sentence. But was receiving a gun "using" a gun? The Fifth Circuit believed so.
"Different circuits have reached different conclusions on that question," Madden said, resulting in "defendants in different parts of the country receiving different sentences for the exact same conduct."
Conflict among the circuits can catch the attention of the Supreme Court. The Supreme Court recently agreed to hear Watson v. United States, offering a satisfying conclusion to the inaugural clinic's nine students, who will now tackle a merits brief on behalf of Watson.
Of the more than 7,000 cert petitions seeking hearings each term, the Supreme Court agrees to review and issue decisions on 100 or fewer cases. Students spent many hours outside of the class reviewing federal appellate and state court decisions throughout the summer and early fall, looking for potential appeals. Among the five cases the clinic pursued, students also successfully argued against the Supreme Court hearing a case involving a federal court's habeas ruling.
"There are a lot of people interested in these cases, so it's important to stay on top of monitoring the circuits and the states," Madden explained. "You really have to check every day." That persistence helped Virginia land several cases, including Watson, despite tough competition. Five leading law schools have started Supreme Court clinics since Pam Karlan, a former Virginia law professor, started the first clinic at Stanford three years ago.
In the clinic's first semester last fall, students drafted Watson's cert petition, with the supervision of law professor Dan Ortiz and attorneys David Goldberg and Mark Stancil, in coordination with the counsel in the court below, Baton Rouge attorney Karl Koch.
"This is how you would litigate a Supreme Court case in a law firm," Stancil said, but "most junior lawyers don't get to draft Supreme Court briefs."
Stancil, a 1999 graduate of the Law School and attorney at Robbins, Russell, Englert, Orseck & Untereiner, in Washington, D.C., noted that students in Supreme Court clinics may have different levels of involvement in such cases.
"When you talk to the counsel who handled the case below, they want a partner in their case," he said. "We like to work with them, not just step in and replace them."
"Our experience in Watson was very positive because the students were able to do an awful lot of the work," Ortiz added. "The clinic is only good for the students if they have a lot of responsibility."
The clinic instructors also try to guide the students without doing work for them.
"We're very committed to the drafting experience with the students and not just rewriting their work," Stancil explained. The instructors "want to give them the feedback it's really hard to get in private practice when you're under tremendous time pressure." As a result, "the students get to do more than they would get to do for even their first year at a firm."
Months after the clinic began last fall, it's clear now that emphasizing the drafting process has improved students' skills, Ortiz said.
"They can write more quickly. They know the right questions to ask. The stuff they do is more polished—it takes less revision," Ortiz said. "It's a wonderful capstone experience for them because it brings together a lot of things that they've learned in law but they haven't actually had a way of applying, and they're applying them at about the highest level you can in the profession."
The experience has helped Madden as he prepares next year to clerk for Judge Stephen Williams of the U.S. Court of Appeals for the District of Columbia Circuit. "I'm interested in appellate advocacy and Supreme Court work," he said, "The structure of the class just seemed really exciting—to take real cases and seek certiorari from the Supreme Court. It also seemed like a great opportunity to refine my writing skills and persuasive writing in a way you don't normally get to do in a big lecture class."
Third-year law student Khang Tran, who is clerking for Judge Robert G. Mayer of the U.S. Bankruptcy Court for the Eastern District of Virginia after law school, also found that the clinic is preparing him well for the next stage of his career. "During the clerkship interview process, I think every judge I talked to at least mentioned my involvement in the clinic," he said, and the topic led to many longer conversations.
"More than anything else we learned to try to get in the heads of decision makers," Tran said.
The class's attention has now turned to writing the merits brief for Watson, due in early May. The briefing will be completed over the summer, and the case is slated to be argued before the Court in October. The instructors expect next year's students to play a significant role in preparing the case for oral argument.
"It's our first merits brief, so everyone is really jumping headfirst into it," Tran said. "The group dynamics really help."
For Watson, "we'll be arguing thatone doesn't naturally say that one 'uses' a gun or 'uses' an item when it's received," Madden said. "It's a persuasive case." He hopes to attend oral arguments in the fall.
"We've got a very good chance of winning this one, but we're going up against the solicitor general's office, which is the best law firm in the country," Ortiz said.
Ortiz said students have devoted so much time to the yearlong course that he plans to raise the number of credits it confers next year. "This was an awful lot of work," Ortiz said of the five-credit clinic. "They're real troupers."
"Our students are fantastic," Stancil agreed. "They've really sharpened not just their writing skills but their analytical skills."
The clinic petitioned for the Supreme Court to hear three other cases to which the court did not grant cert. In Smith v. Wisconsin, handled by Law School alumna Allison Ritter '92, a juror in a DUI case who worked in the district attorney's office running the case was seated over the defendant's objections.
"It was brilliant having them come in and help me out," said Ritter, a criminal trial attorney and partner at Ritter, Rypel & Yasin in Milwaukee. She received a call offering help from Ortiz and Stancil after her case was denied by the Wisconsin Supreme Court. "They really helped me so much and my client was really grateful," she said. "The class really put a lot of effort into that brief."
The clinic also took on Fausey v. Hiller, a case closely watched by parents-rights groups that revolved around the question of whether state courts can grant grandparents custody or visitation rights to a grandchild over the objection of a fit parent. State courts have split 13-12 on the issue of whether grandparents have to show harm to the child due to lack of visitation or custody, based on an unclear Supreme Court decision in 2000, Troxel v. Granville.
Appellate litigator and "How Appealing" web blogger Howard Bashman picked up the Fausey case and contacted Stancil to see if the Virginia clinic would be interested in working with him on the case. Although the clinic instructors felt the case was strong, the Supreme Court announced today that it would decline to hear it.
"Getting anything granted cert at the court is always a crap shoot," Stancil said. "I never take anything for granted when I'm trying to get a case before the Supreme Court."
"I could not be more pleased with the work that the students and instructors at the University of Virginia School of Law's Supreme Court clinic performed in preparing the petition for writ of certiorari and reply brief in support of review," Bashman wrote of the clinic's role in Fausey in a recent Law.com article.
In Kelley v. Bracewell, the clinic argued in their cert petition that crop bail-out payments passed by Congress should be considered part of the bankruptcy estate (giving creditors access to them) when the debtor filed for bankruptcy after the crops failed, but before the law was passed. The intellectual issue at stake was "how contingent can an interest in something be before it fails to qualify as property," Ortiz explained.
In another case, Palakovich v. Thomas, the clinic successfully argued that the Supreme Court should not grant a hearing. After his conviction, a man sought habeas relief from the Pennsylvania and federal courts, claiming that a critical eyewitness identification was incorrect. State courts ruled against him, but the lower federal courts, finding that the Pennsylvania courts had not looked at the relevant facts, granted him post-conviction relief. "We wrote a brief saying 'no the federal courts were right, and there's no important issue at stake here anyway,'" Ortiz said. "The Supreme Court typically doesn't take cases because it thinks the results below were wrong. The question usually has to be important. Either there's a big national issue or there's some real division on the law among the lower courts, and we argued there wasn't either here."
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