Before the Bar: New Grad Argues at 9th Circuit

20170622_ElizabethAriasEugeneVolokh
Elizabeth Arias and Professor Eugene Volokh collaborated on her First Amendment argument.

Elizabeth Arias graduated from UCLA School of Law in May and immediately turned her attention to the first major test of her legal career. It was not the California bar exam.

On June 16, Arias delivered oral argument before the U.S. Court of Appeals for the Ninth Circuit in French v. Jones, a First Amendment case with potentially far-reaching implications for election-related speech.

Seizing an exceedingly rare opportunity for someone just a few weeks out of law school, Arias represented the Center for Competitive Politics, a nonprofit for which UCLA Law professor Eugene Volokh and the students in his Scott & Cyan Banister First Amendment Clinic researched and drafted an amicus curiae brief. That document supported Mark French, a 2014 candidate for justice of the peace in Sanders County, Montana, who was barred by state law from saying that the Republican Party had endorsed him. French lost that race, but his challenge to the statute has lived on.

“The case is about whether judges can associate with a political party and whether the Montana law unfairly burdens judicial speech,” says Arias, who argued that the law violates the U.S. Constitution’s protections of free speech and association. A budding litigator who prevailed in a number of moot court competitions during law school and will work at O’Melveny & Myers in Los Angeles after she takes the bar exam in July, Arias started working on French as a second-year law student in the clinic.

20170623_VolokhAriasAttorneys

L-R: Montana Assistant Attorney General Stuart Segrest, Montana Solicitor General Dale Schowengerdt, Matthew Monforton, Elizabeth Arias, Eugene Volokh, Mark French.

 

Under the direction of Volokh, UCLA’s Gary T. Schwartz Distinguished Professor of Law, the four-year-old clinic has filed friend-of-the-court briefs in more than 50 cases on behalf of third parties with keen interests in First Amendment issues. “Speech cases often present issues that have significance well beyond the interests of the parties,” Volokh says. “In the Banister Clinic, exceptional students like Elizabeth get to drill deep into First Amendment law, public interest groups get to express their views even if they don’t have the resources to write a brief themselves, and courts can get helpful insights that the parties are often not in a position to provide.”

Volokh’s experience — he clerked for Supreme Court Justice Sandra Day O’Connor and Ninth Circuit Judge Alex Kozinski ’75, has written a First Amendment textbook, has argued more than a dozen cases for clinic clients, and has written articles that are widely cited in appellate courts — attracted French’s attorney, Matthew Monforton ’94, who knew Volokh ’92 when both were students at UCLA Law. “Eugene Volokh is one of the top First Amendment scholars in the nation, and that sends a strong signal to the judges that this is an important case,” Monforton says. “His presence in the courtroom conveys gravitas.”

Equally appealing was the chance to give one of Volokh’s star students a turn at the tribunal. “Courts and attorneys have a duty to help law students transition into practitioners, and participating in a real oral argument before an appellate court is a great way to do that,” says Monforton, who previously served in the Montana state legislature and now runs a civil rights practice in Bozeman. “This is a case where you can do it: You don’t have the same client-based pressures that you would have if you were representing a corporation that’s got $50 million on the line or a criminal defendant who’s looking at 20 years in prison if you lose on appeal. This is an important First Amendment case, but it’s one where the client wouldn’t, and doesn’t, object to a smart new law graduate participating.”

Making Her Case

20170622_ElizabethAriasInCourtBigger

Elizabeth Arias argues before the U.S. Court of Appeals for the Ninth Circuit in Seattle.

A Ninth Circuit rule states that an “eligible law student acting under the supervision of a member of the bar of this Court” can appear for a consenting client. It’s a great program, Volokh says. “Students and recent graduates so rarely get to argue cases — indeed, often lawyers don’t get their first appellate arguments until many years in practice. And of course, those students prepare extra hard and thus perform extremely well.”

With the court’s approval, Arias and Volokh leapt into their preparation — right when she also ramped up her studying for the bar exam.

“Preparing for the argument was actually a nice break from bar prep, which is lots of tedious memorization,” Arias says of her series of moot court simulations with panels of UCLA Law professors acting as judges. Those exercises gave Arias sharp insight on the substance of her argument, as well as tips on her posture, pronunciation and tone of voice. “I was very lucky that they took the time to read all the materials and prepare tough questions. Their feedback was invaluable.”

But nothing compared to the real thing, which played out in 10 minutes in a Seattle courtroom. Arias fielded probing queries on the finer points of political speech doctrine, withstood some good-natured quips and connected on a few curveballs that she did not see coming. “The judges asked some questions that I had not practiced in the moots,” she says, “but the moots helped me feel confident that I could discuss the case and handle it.”

The judges agreed. “Oftentimes, we don’t acknowledge students when they are not representing a party, but are amici,” Judge Jay Bybee said to the courtroom as he concluded the hearing. “But, Ms. Arias, this was very nicely done, and I hope you realize how fortunate you are in a big case to have had a professor give you his argument.”

She is well aware. “The experience was amazing,” Arias says. “I feel like it will be my top experience of law school. It just worked out so well. I feel so lucky to have had the opportunity and am so grateful to everyone who helped make it happen.”