Seth Waxman Discusses Advocacy in the Supreme Court

Seth Waxman circa 1997.

Seth Waxman was the 41st Solicitor General of the United States, in that position from November 1997 until January 2001. Since the time he left the Department of Justice and put representing the United States behind him he has become one of the most sought after appellate advocates in the country.  Waxman, who practices at WilmerHale in Washington, DC, has also become quite in demand in the patent community, both as a counselor during patent litigation and then as litigation turns into appeals he takes center stage.

Waxman has become one of America’s super lawyers, specializing in all kinds of appeals before the Supreme Court of the United States. He is in such demand in patent matters because the Supreme Court has never been known to be a warm and welcoming place for patent owners, but Waxman has achieved notable victory where many in the industry suspected certain defeat.

I spoke with Waxman in August 2012 on the record. What follows is Part II of my interview with Seth Waxman. In Part I we discussed the path to becoming Solicitor General and how and why Waxman decided to leave private practice. Part III (forthcoming) will discuss why the Supreme Court is so interested in patent cases, and the finale, Part IV (also forthcoming), will discuss the mechanics of a Supreme Court grant of certiorari, so stay tuned!


Waxman on the advantage of not being a “Patent Specialist”

WAXMAN: Perhaps paradoxically, it seems to me, the advantage in litigation with respect to esoteric areas of the law and technology goes to the generalist.  All too often,  experts apply all sorts of mental shortcuts in explaining why their view is correct.  It’s difficult for anyone with expertise to put herself  in the mindset of someone who isn’t, and is approaching the issue as a generalist adjudicator.  Even Federal Circuit judges  with technical training lack expertise with respect to the vast majority  of the kinds of innovation that comes before that court.

When I approach a patent case, I’m almost always in the position of the untutored generalist — as to the technology, the doctrine, the practice, or (usually) all three.  I try to learn the fundamental step-by-step of what’s involved.  Sometimes I enlist  a practitioner steeped in doctrine; sometimes it’s a an expert in the technical field.  These tutorial sessions are incredibly interesting.  And observing myself learn these things that are not at all obvious to me helps me to frame what it will take to “teach” these points, in a brief or in an oral argument.  I try not to take anything for granted, in the learning and the “teaching.”

When my children were younger, I used to prepare for every Supreme Court by  trying to explain to one of them what the case was about.   Of course judges and justices aren’t  children (far from it!) , but trying to explain to a child  what the case is really about and why you think you’re right, helps reveal just  how many mental shortcuts you’re making.  Going step by step in this way, it’s easy to see from your audience’s face when you’re making a logical or explanatory leap, when your explanation has skipped  too many logical building blocks.  You have to go back and realize ah-ha.

QUINN: That’s a key piece.

WAXMAN: That’s a key piece.  And it’s not like you’re going to have to explain many truly fundamental principles to justices of  the Supreme Court, but I find simply reflecting on them in the context of trying to build an argument to be incredibly helpful.  And this applies with particular force in the patent and technology area.  There, I don’t assume my audience — children or judges — will be sufficiently knowledgeable  about anything.

Waxman on arguing before the Supreme Court

WAXMAN: Advocacy in the Supreme Court is reflects the unique dynamics of the Court and it’s docket.  The nine justices, of course, always sit en banc and, with rare exceptions, almost all of them will  ask questions at oral argument.  Because the court accepts relatively few cases for plenary consideration, the justices are able to steep themselves quite deeply in each case before oral argument.  And because the court sits atop the entire judicial system, the court tends to be relatively unconcerned with any precedent by its own.

That said, I don’t prepare for an oral argument in the Supreme Court much differently than I do for oral arguments in the courts of appeals, or, for that matter, in district courts.  I try hard to  anticipate any question a reasonable judge or justice might have.  I work over and over the best answer to the hardest questions.  And with respect to each answer, I try to figure our what follow-up questions the court might have, and what the answers to those questions might be.  For me at least, this is hard, hard work.

In the Supreme Court, where arguments are 30 minutes per side, an advocate may field up to 50 questions.  There’s no time to reflect on the best answer, or to luxuriate in words before delivering it.  You either work these things out in advance, or you squander your opportunity to be most helpful to the Court, and of course to your client.

Another important step for me in preparing for argument is to define and refine what I call the kernel of the case —  the one, two, or at most three framing points you want to have at the forefront of your mind, and to communicate, during the argument.  Ideally, these should be featured in the briefing, but I find often that they’re not.  There’s something about the process of stepping away from the fray of the briefwriting and thinking in a focused, concentrated way about the oral presentation of the case that often reveals new insights.  It’s so very important to unearth those insights, and to communicate them effectively at argument.    Judges are every bit as human as the rest of us.  They too are working to discern the most satisfactory way of defining the core issues and crafting the correct resolution.  They’re interested in oral advocacy to the extent it adds value.

Most judges are quite discerning in this regard.  It doesn’t take long to reveal just what kind of an oral argument they’re going to be getting— whether this is a lawyer who’s prepared, thoughtful, and candid, or is this someone who’s  unprepared, or superficial, or not reliable.  Is the advocate clueless, wise, or  merely clever.

This latter point is important.  Smart law students tend to be clever.  When they begin practice, they tend to gravitate toward answers that tend to make them look smart rather than focusing on answers that will most help a judge decide the best way to resolve an issue.  Moving from the former to the latter  requires time and experience, and sometimes  a lot of tread wear.  But it’s the most important transition an advocate can make.  Clever answers provide transient gratification to the speaker, but judges are looking for wisdom, and it is vitally important for advocates not to mistake the former for the latter.

QUINN: Too clever by half, almost.

WAXMAN: Or just clever, period.  Don’t ever aspire to be the kind of lawyer judges consider merely clever.

QUINN: Now when you started that answer, you mentioned that you may anticipate questions from eight of the nine Justices.  And I’m confident I understand what you’re saying there because one of them has a reputation for not asking questions.  But for those who maybe are not that familiar with the Supreme Court, who are you referring to?

WAXMAN: Justice Clarence Thomas rarely asks questions at oral argument; he’s explained that he doesn’t find oral argument useful in helping him decide cases and how to write opinions that fairly address the issues.   As a consequence, he rarely asks questions.  I’ve had, I think, two oral arguments during which Justice Thomas asked a question.  I don’t remember what they were, but they were very good.




Warning & Disclaimer: The pages, articles and comments on do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of Read more.

Join the Discussion

3 comments so far.

  • [Avatar for rolando]
    November 27, 2012 06:58 am

    Thank you for this article. Very insightful, I am looking forward to the upcoming parts.


  • [Avatar for Gene Quinn]
    Gene Quinn
    November 25, 2012 07:22 pm


    I have 2 more segments upcoming. They are short, but there was a logical topical split. The complete interview was fascinating. I’m glad you enjoyed it so far.



  • [Avatar for Anon]
    November 25, 2012 12:43 pm

    Great article Gene – thanks!

    (and thank you Mr. Waxman for sharing)!