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Scalia’s lessons of appellate advocacy

We know Justice Antonin Scalia is writing a book that is essentially a “how to” manual on appellate advocacy.

Perhaps one of the chapters will be titled, “Make sure you put all relevant information about your case in your brief.”

That may sound self evident. But just days after an attorney miffed the justice for not including relevant statutory language in his brief, today an attorney hinted during oral argument that the Court may have improvidently granted review of the case – something he maybe should have mentioned in his brief.

Let’s back up – the case, Allison Engine Co. v. U.S. Ex Rel. Sanders, No. 07-214, stems from a qui tam action brought under the False Claims Act by whistleblowers against a subcontractor to a company building guided-missile destroyers for the Navy. The project was federally funded.

The whistleblowers alleged that the company submitted invoices for payment even though the work did not meet contractual or Navy requirements. The invoices were submitted to the contractor – not the government – but the whistleblowers contend that an invoice seeking federal funds, even if not submitted to the government, qualifies under the Act. The subcontractor contends that it does not.

But during the last 15 minutes of oral argument, James B. Helmer, Jr., the attorney representing the whistleblowers, caused a stir when he claimed that certificates of conformity were sent to the Navy – something that would have clearly fallen under the Act, rendering the Supreme Court’s review of the case unnecessary.

“Allison was required . . . to give a certificate of conformance that all of these rigid requirements had been satisfied, and that certificate of conformance had to be given to the United States Navy,” Helmer said.

“I thought it was not established that anything from this defendant got to the Navy,” said Justice Antonin Scalia.

“You were told that earlier this morning [by opposing counsel], Your Honor,” Helmer said. “I don’t believe that’s correct.”

“Well, then there’s less to this case than we had thought,” Scalia said. “My goodness, even under the Petitioner’s theory, you win . . . What is all this fuss about, then?”

“This case is not an outlier on the ends of this statute,” Helmer said. “It is squarely in the middle.”

Then came the lesson. “I wish you had said that in your brief, because we could have saved ourselves a lot of reading,” Scalia said to Helmer.

“Your Honor, anything that I can do to help the Court,” Helmer said. “I apologize if I didn’t write the brief better than I could have.”

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