March 30, 2007 -- The University of Virginia Law School’s Supreme Court Litigation Clinic has successfully petitioned the Supreme Court to hear Watson v. United States, a case involving a defendant whose sentence was extended due to an additional gun charge. In its inaugural year, the clinic petitioned the court concerning five cases, making the course a particularly intense experience for its nine students, who will now tackle a merits brief in Watson. Of the more than 7,000 cert petitions seeking hearings each term, the court agrees to review and issue decisions on 100 or fewer cases.

In the clinic, students work with real Supreme Court cases, partnering with counsel who handled the cases in the courts below. Students examined federal circuit and state court decisions over the summer in hopes of finding cases that might be worthy of appeal.
 
“There are a lot of people interested in these cases, so it’s important to stay on top of monitoring the circuits and the states,” third-year U.Va. law student Matt Madden explained. “You really have to check every day.”

That persistence helped Virginia land several cases, including Watson, despite tough competition. Five leading law schools have started Supreme Court clinics since Pam Karlan, a former U.Va. law professor, started the first clinic at Stanford three years ago.

Madden was trolling through the Web site of the Fifth Circuit Court of Appeals when he stumbled across something that he thought might make the justices take notice. Louisiana defendant Michael Watson sought to buy a gun from a federal agent, who wanted drugs in return. Watson was busted not only on drug trafficking charges but also for “using a firearm in furtherance of drug trafficking,” which in the end tacked on nearly 10 years to his sentence. But was receiving a gun “using” a gun? The Fifth Circuit believed so.

“Different circuits have reached different conclusions on that question,” Madden said, resulting in “defendants in different parts of the country receiving different sentences for the exact same conduct.” Conflict among the federal circuits often catches the attention of the Supreme Court.

In the clinic’s first semester last fall, students drafted Watson’s cert petition, with the supervision of U.Va. law professor Dan Ortiz and attorneys David Goldberg and Mark Stancil, in coordination with the counsel in the court below, Baton Rouge attorney Karl Koch.

“This is how you would litigate a Supreme Court case in a law firm,” Stancil said, but “most junior lawyers don’t get to draft Supreme Court briefs.”

Stancil, a 1999 graduate of U.Va.’s Law School and attorney at Robbins, Russell, Englert, Orseck & Untereiner, in Washington, D.C., noted that students in Supreme Court clinics may have different levels of involvement in such cases. “When you talk to the counsel who handled the case below, they want a partner in their case,” he said. “We like to work with them, not just step in and replace them.”

“Our experience in Watson was very positive because the students were able to do an awful lot of the work,” Ortiz added.  “The clinic is only good for the students if they have a lot of responsibility.”

Months after the clinic began last fall, it’s clear now that emphasizing the drafting process has improved students’ writing skills, Ortiz said.

“They can write more quickly. They know the right questions to ask. The stuff they do is more polished — it takes less revision,” Ortiz said. “It’s a wonderful capstone experience for them because it brings together a lot of things that they’ve learned in law but they haven’t actually had a way of applying, and they’re applying them at about the highest level you can in the profession.”

The experience has helped Madden as he prepares next year to clerk for Judge Stephen Williams of the U.S. Court of Appeals for the District of Columbia Circuit. “I’m interested in appellate advocacy and Supreme Court work,” he said. “The structure of the class just seemed really exciting — to take real cases and seek certiorari from the Supreme Court … It also seemed like a great opportunity to refine my writing skills and persuasive writing in a way you don’t normally get to do in a big lecture class.”

Third-year law student Khang Tran, who is clerking for Judge Robert G. Mayer of the U.S. Bankruptcy Court for the Eastern District of Virginia after law school, also found that the clinic is preparing him well for the next stage of his career. “During the clerkship interview process, I think every judge I talked to at least mentioned my involvement in the clinic,” he said, and the topic led to many longer conversations.

The class’s attention has now turned to writing the merits brief for Watson, due in early May. The briefing will be completed over the summer, and the case is slated to be argued before the Supreme Court in October. 

“It’s our first merits brief, so everyone is really jumping headfirst into it,” Tran said. “The group dynamics really help.”

For Watson, “we’ll be arguing that … one doesn’t naturally say that one ‘uses’ a gun or ‘uses’ an item when it’s received,” Madden said. “It’s a persuasive case.” He hopes to attend oral arguments in the fall.

“We’ve got a very good chance of winning this one, but we’re going up against the solicitor general’s office, which is the best law firm in the country,” Ortiz said.

To read more about the work of the U.Va. clinic, go to: www.law.virginia.edu/html/news/2007_spr/supctclinic.htm.