Fast on their feet
Appellate Practice Academy trains attorneys for highest courts.
Most attorneys will never set foot in front of the Michigan Supreme Court or the U.S. Supreme Court; those who do are likely to find themselves less prepared than they expected.
That’s because arguing a case in front of one of these two courts is a completely different experience than presenting a case in a lower court, according to John Bursch, an attorney with Warner Norcross and Judd.
“The U.S. Supreme Court … on average they ask 100 questions in a one-hour argument — more than one per minute,” Bursch said. “In that environment you really need to be able to deliver your entire case in little sound bite answers. You don’t have time to give a small speech every time they ask you a question.”
Bursch has argued 18 cases in front of the Michigan Supreme Court and eight in front of the U.S. Supreme Court, more than anyone else in private practice in the state, he said.
Earlier this year, Bursch began using his tremendous experience to help other attorneys prepare for cases in the Michigan Court of Appeals, Michigan Supreme Court and the U.S. Supreme Court.
He launched the Appellate Practice Academy at Warner Norcross, where he heads the firm’s Appellate Practice Group.
“We do practice arguments for all of our cases and we found those to be extraordinarily helpful in getting us ready, so when we are actually in court, we have a really good feeling for what the judges are going to ask and the best way to answer those questions,” Bursch said.
“It seemed like a natural thing to do: to take this practice that was working so well and give people outside our law firm an opportunity to use that service.”
He said his other motivation was a conversation he had previously with Michigan Supreme Court Chief Justice Robert Young. Young conveyed that he wished attorneys were more prepared before stepping in front of him and his colleagues.
“He had spoken to me back when I was Michigan Solicitor General about the need to create a stronger appellate bar,” Bursch said. “They wanted to see better arguments, with attorneys better prepared for the kinds of questions the justices ask.”
Bursch recruited Warner colleague Matt Nelson, who also has experience arguing cases in both the state and federal Supreme Courts, former Michigan Court of Appeals Judge Richard Bandstra, former Michigan Supreme Court Chief Justice Michael Cavanagh, former Michigan Supreme Court Justice Alton Davis, former Michigan Court of Appeals Chief Judge William Whitbeck, and Western Michigan University Thomas M. Cooley Law School Professor Devin Schindler to serve as panelists for the Appellate Practice Academy.
“Collectively, the four (former judges) have heard and decided several thousand appeals,” Bursch noted.
The number of panelists hearing the practice argument and providing feedback is consistent with the court in front of which the attorney will be arguing.
“If you are doing a Michigan Court of Appeals argument, there would be two to three on the panel,” Bursch said. “A Michigan Supreme Court argument would be up to seven, and if it’s the U.S. Supreme Court, up to nine.”
Bursch said the Appellate Practice Academy is run just like the real deal, with the panelists reading all of the material prior to the case and then asking questions of the attorney the same way the justices would.
“We actually have the practice argument in a mocked-up courtroom,” he said. “You run the attorney through the paces just like they were at the real argument. You call the case and you have the judges up on the bench, and they are asking a lot of difficult, rapid-fire questions the person has to answer.”
Following the practice argument, the panelists provide feedback and strategy to the attorney.
“They provided such great insight into shaping your argument,” said Andrew Rodenhouse, an attorney at Rodenhouse Kuipers.
Rodenhouse participated in the Appellate Practice Academy in March, just before arguing his first case in front the Michigan Supreme Court later in the month.
“The judges on the panel were just like a Supreme Court justice in that they had read everything,” he said. “They were well versed in the issues and, as such, they were really able to hone in on the argument and what should be the focus of the argument in front of the real Supreme Court.”
He noted he especially benefitted from being challenged by the panel to think about how the case would impact not only his client but also the entire legal landscape.
“While every case is important to every individual, when you get to that level, what the court is doing is asking, ‘Are we going to change a precedent? Are we going to make a precedent? Are we going to reinforce a precedent?’ because they are making law for the entire state.”
Rodenhouse said when he got to the Michigan Supreme Court on the day of his real case, he could see right away how the academy had benefitted him as he watched other lawyers argue their cases.
“What really struck me was how unprepared most of them were to appear in front of the state’s highest court,” he said. “I can see the justices being very frustrated with many of the attorneys in not understanding the proper protocols or how to shape the arguments, not knowing how to answer the questions.”
Rodenhouse said he hopes more attorneys will take advantage of the program.
“I can’t say enough good things about the program,” he said.
The fee charged for the Appellate Practice Academy is dependent on the number of panelists as well as the complexity of the case at hand.
“We will reach agreement on a flat fee so there are no surprises afterward about how much this is going to cost,” Bursch said. “Then we will put together a panel that will be a mix of attorneys and judges.”
Bursch said it’s a good idea for attorneys to consider participating in the Appellate Practice Academy even before filing their brief.
“The brief is the very first impression the justices will have about your case,” he explained. “It’s really important. If the judge makes up his or her mind based on the briefing, it’s really hard to move him off that mark at oral argument.”
Bursch said the Appellate Practice Academy already has attracted several attorneys.
“We’ve already mooted 20 percent of the cases that were presented to the Michigan Supreme Court so far this term, which is an incredibly high number for a start-up like this,” he noted.