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DC Dicta asks: Who should argue – the Supreme Court pro or the case veteran?

When the Supreme Court agrees to hear a dispute who should argue the case: the lawyer who has argued it before lower courts or a Supreme Court pro who is well-known by the high court’s justices?

That is the question behind a behind-the-scenes standoff in the case Carcieri v. Kempthorne, which is scheduled to be argued before the Court on Nov. 3.

Ted Olson, former U.S. solicitor general turned Supreme Court veteran, has filed his appearance with the court to argue on behalf of the petitioner in the Indian land case. But so has Joseph S. Larisa Jr., the attorney who has argued the case in the lower courts. (Lawyers USA‘s sister publication, Rhode Island Lawyers Weekly, named Larisa one of the 2006 “Lawyers of the Year,” so he’s apparently no slouch.)

The Supreme Court clerk told the two that they’d better work it out, and gave the attorneys an Oct. 30 deadline to do so.

Officials in Charlestown, R.I. – where the land dispute is based – are backing Larisa. The governor and the state attorney general, however, are behind Olson. Larisa has proposed several times that the standoff be settled by a coin toss. Olsen, the governor and attorney general didn’t think so. “They have not suggested any other option other than ‘Ted wins,’” Larisa told Legal Times. “Less than 13 days to go until oral argument and we cannot agree on a simple coin toss. It is the town’s position that the AG and governor are now affirmatively hurting preparation for oral argument.”

So who do you think should argue the case? Vote now!

[polldaddy poll=1033582]

3 comments

  1. I kept waiting for you to mention Justice Scalia’s counsel in his new book. I suspect that he would err on the side of having Larisa argue.

  2. Great point! Thanks!

  3. It is a bit misleading to dwell on Larisa’s current willingness to flip a coin as a last resort for a resolution. For months he has proposed the much more reasonable alternative of a moot court competition to decide who should argue. Besides being a sensible merit-based alternative it would have been great practice.

    So the real story is: Larisa proposes merit-based competition to decide who should argue. Governor and AG refuse without proposing alternative.

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