A sterling reputation is the key driver of success for lawyers, agreed U.S. Supreme Court Justice Elena Kagan and U.S. Circuit Judges Sri Srinivasan, JD/MBA ’95, (BA ’89), and Raymond Kethledge in a talk at Stanford Law School this winter quarter. The event, co-sponsored by the American Constitution Society and the Federalist Society, gave students the opportunity to hear tips about writing a good brief—and more. It was held prior to this year’s Moot Court Board final arguments, at which the justice and judges presided in a simulated U.S. Supreme Court.
Asked about the most important traits in law clerks, Srinivasan said he looks for “what every supervisor looks for: someone who makes you do your job better.” All three emphasized the need for clerks who bring new insights to the cases they are handling and also are fun to be around, since judges and clerks spend a great deal of time working together.
Kagan said she looks for clerks who can stand up to her and offer counterarguments even when she seems to have made up her mind. Kethledge added that he looks for clerks who take ownership of their assignments, are professional and mature, and can write well because “for lawyers, that’s the medium through which we primarily express what we do.”
All three agreed that they enjoy reading well-written briefs. Kagan called Supreme Court Justice Antonin Scalia’s lone dissent in Morrison v. Olson (1988), in which he argued that the Independent Counsel Act should be struck down because it was a wolf in wolf’s clothing, “one of the greatest dissents ever written and every year it gets better.”
When asked for specific tips on writing a good brief, Srinivasan said the writer can take two approaches: One is to try to cite decisions in previous cases to compel the judge to rule based primarily on past practice, while the other is to write a brief that persuades the judge to adopt the arguer’s point of view. He advised the latter. It’s also important, Srinivasan explained, to acknowledge the weaknesses in your case. Kagan said the best briefs are ones that tell a story and make an overarching case for why the argument makes sense. Kethledge focused on the importance of good style and establishing credibility. “When a judge reads your brief, you should understand the judge is judging you,” he said.