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Takeover Specialists Why many litigators hand their cases to High Court pros ABA JOURNAL - OCTOBER, 1998 By: Steve France 84 A.B.A.J. 38 Some might wonder if the new breed of lawyers who hold themselves out as Supreme Court specialists are really supreme glory hounds, experts at nipping in to steal cases from hard-working litigators who were just entering the most exalted law court in the world. Are the specialists really so good that a legal team that has worked a case for years should step aside? Apparently so. The Court now reviews only about 80 cases each term, down from the 150 or so it used to take, and an ever higher percentage is going to lawyers whose practice is focused on Supreme Court work. When Carter Phillips joined with former U.S. Solicitor General Rex Lee 15 years ago to build a Washington, D.C., Supreme Court practice for Sidley & Austin, it was the only firm "consciously and systematically pursuing those cases," says Phillips, who has 24 arguments under his belt. Now the firm competes with several boutiques and specialty departments in other D.C. law firms. While there is a touch of show business in g out a niche in the Supreme Court legal market, success in the Court is more like winning a close game of chess than stealing the show at Carnegie Hall, says Bruce Ennis of Jenner & Block's D.C. office. What matters, the specialists say, is understanding the unique role of the Court, the views of each justice and how to work with local counsel. Getting a Good Start Oral argument might seem the place where experience would count most, but in fact the most crucial point is much earlier -- when justices grant or deny cert. More than 98 percent of the cases are lost or won with a denial, says Charles Cooper, founder of the Washington, D.C., Supreme Court boutique Cooper, Carvin & Rosenthal. Of those cases taken, petitioners win two out of three. The specialists claim they can better those odds because they understand that the Court is less a court of last resort than a court of policy. What makes it different is not that it is the highest court in the land, but that it chooses its own docket and the issues it addresses in a given case. Understanding the ramifications of those facts is key to Supreme Court success. The insight "shines the most at the petition stage," says Supreme Court veteran Alan Morrison of Public Citizen Litigation, a consumer-oriented public interest litigation group. Also, the ultimate impact of a case hinges on the breadth of the ruling, which may be decisively shaped by the petition. The most arcane skill a master brings to the task is the ability to formulate a perfect "Questions Presented" section. The late Justice William J. Brennan once quipped that this part of the petition is the only part necessary to read. The statement should be short enough that it can be read aloud in one breath, Morrison says, but it cannot leave out any key issues -- and it must offer a big question that needs attention now. Trying to entice the justices can feel like searching for just the right catchy slogan for a direct mail campaign, Morrison says. He recalls a case involving a tort lawyer sanctioned for picturing a Dalkon Shield intrauterine device in an ad for legal services. Morrison says he almost decided just to reproduce the ad on the Questions Presented page and ask, "Can a lawyer be sanctioned for running this ad?" An Audience of One Of course, the initial target of the pitch is not the justices, but the law clerk who writes the pool memo the justices read to decide whether to review the case. One thumb up or down from this anonymous, newly minted lawyer will propel the case up to the High Court or down to legal oblivion, says Richard Bernstein, also a partner at Sidley & Austin. He estimates that clerk recommendations are followed 99 percent of the time. Though Morrison never clerked at the Court, it helps to have occupied an inner chamber of the Marble Palace if you want to make a career of living inside the heads of the justices. That's why Sidley & Austin has about 20 former clerks on its Supreme Court team. Bernstein, who clerked for Antonin Scalia, admits he was proud of having all of his pool memos followed. Despite the fun of seeing cases go forward, the clerks err on the side of caution, he explains. Above all, the clerks want to cover themselves, agrees Marci Hamilton, a former clerk for Sandra Day O'Connor who is now a professor at Cardozo Law School with a Supreme Court practice. Even a positive memo will note caveats against taking a particular case. The odds are slim of winning over one of these prudent youngsters with a flashy pitch. Despite the spicy tidbits a specialist deftly mixes into the brief, the clerks will be looking for the real beef, Cooper says. It comes in three main cuts: a significant loss by the federal government, a "palpable conflict in the federal circuits," or a "constitutional issue of real moment." What doesn't make the grade, Hamilton says, are arguments that the lower court made a bad decision. Even the worst error below will leave the Court unmoved in the absence of a juicy, larger issue. This goes against the grain for a lawyer used to squeezing the facts in his case to fit the circuit or state court's legal rule. In the Supreme Court, an attorney must change gears to argue that the lower court may have made the right decision under its rule, but the rule conflicts with other circuits, exceeds the statute or violates the Constitution, for example. Supreme Aspirations The number of law films and legal departments devoted to Supreme Court work is growing. Among the big players: Jenner Block: 15 Attorneys in High Court work 12 Former High Court clerks 10 Years of High Court specialty 28 plus Cases argued before the Court Sidley Austin: 44 Attorneys in High Court work 26 Former High Court clerks 13 Years of High Court specialty 42 Cases argued before the Court Cooper, Carvin & Rosenthal: 11 Attorneys in High Court work 04 Former High Court clerks 02 Years of High Court specialty 07 Cases argued before the Court Farr Taranto: 02 Attorneys in High Court work 02 Former High Court clerks 10 Years of High Court specialty 25-30 Cases argued before the Court Mayer, Brown: & Platt: 24-30 Attorneys in High Court work 6-7 Former High Court clerks 15 * Years of High Court specialty 26 Cases argued before the Court Gibson, Dunn & Crutcher: 08 Attorneys in High Court work 06 Former High Court clerks 14 Years of High Court specialty 35 Cases argued before the Court Hogan & Hartson: 14 Attorneys in High Court work 10 Former High Court clerks 05 Years of High Court specialty 13 Cases argued before the Court * Firm had a small Supreme Court specify in 1951 and argued 216 cases since then. The practice expanded in 1983. Source: Information supplied by the law firms. The Art of Getting to No Making the job tougher for a lawyer who claims a case presents a big issue is the opponent who argues it is "unique and boring" -- Morrison's mantra in writing oppositions to cert. But, if a case is small potatoes, why the participation of heavy weight Morrison, whose time is precious? That sticky question, and the risk that his involvement might make the Court more likely to grant cert in anticipation of an able argument, sometimes leads him to leave his name off opposition briefs. On the flip side, having a big name push a petition is eye-catching and reassures the Court of expert handling. No name elicits more interest than Harvard Law School's Laurence Tribe. Just getting the constitutional guru to take a case is a victory. Every law clerk knows that Tribe turns away many cases, only taking those he believes are important and interesting. At oral argument he is a star. Bernstein remembers as a clerk seeing Tribe "physically pivot" to make eye contact with a justice whose input he wanted and duly received. Later, working with the late Rex Lee, Bernstein was striving to avoid cert in a patent case that Tribe claimed violated separation of powers. It was pointless to remain anonymous, and the counter argument required some heavy lifting. But a resourceful Lee came up with an artful way to maintain the necessary dismissive tone: The length of his rebuttal was necessitated by the "extravagance and novelty of petitioners' claims." Cert denied. Such flourishes notwithstanding, the real work is done behind the scenes, says Ennis of Jenner & Block. Like a chess master, the attorney must see all the dimensions of each question. The analysis requires a sense of each justice's concerns and convictions, and how they fit with the others' thinking. The aim is to move the justices to respond in a way that advances the game plan. The need to "use all you know about each justice" determines the entire strategy of a case, Tribe says. He looks for a "common denominator around which at least five justices can coalesce," or failing that, for possible coalitions that add up to five based on more than one ground. The point is that true Supreme Court specialists are litigators, not ivory tower "subject-matter experts." To win tough cases they need to pluck precedents from a wide range of substantive areas that might connect with one or more of the justices, he says. Clashing Perspectives Such strategies can clash with the views of the litigator who has handled the case below. Some simply refuse to give up the case. Cooper says he finds "plenty of contrarians out there who don't believe the Supreme Court is that different. They have poured a lot of professional equity into their cases and want to see them through." The result is that "every year, a lot of first-timers argue cases." Those local counsel who do share the case are likely to give more weight to the facts and immediate legal questions in a case, while the specialist favors a big-picture approach, Ennis says. He cites a case involving regulations that prohibited beer labels from disclosing alcohol content. Local counsel told the client beer company that Ennis was crazy to pursue a First Amendment argument rather than stick to issues of statutory authority and administrative law. Furious at having his advice rejected, local counsel removed his name from the brief. The Court bought the new test of commercial free speech that Ennis had devised, he says. Phillips faced a similar strategic fork in the road in handling Missouri's appeal of a federal school desegregation order that added terms to an existing decree. Although the discussion was amicable, attorneys from the state strongly opposed Phillips' recommendation to attack the validity of the underlying decree, in part because the cert petition had focused only on the new requirements. Missouri chose to go with Phillips, who hit a home run: The decree was nullified over a four-justice dissent that complained the issue had been improperly "smuggled" into the case. Swinging for the fences may not always be in the client's best interest, however, according to Fred Morris of Leonard, Street & Deinerd in Minneapolis, local counsel in a 1997 Ennis case determining when civil RICO claims accrue for statute-of-limitations purposes. Ennis won the case for a farm equipment company that faced dozens of aging RICO claims, but he heeded Morris and argued for a moderate rule that cleared the client, while leaving many other RICO defendants still on the hook. Other specialists might not have done as well, speculates Morris. "The Supreme Court lawyers did a wonderful job of marketing themselves and building up the mystique of the Court," he says, but some of them came across as too arrogant or seemed to have their own agenda. For example, he rejected one attorney who insisted on arguing for a more sweeping pro-defendant rule of law than Morris needed -- an outcome that would have provided glory to the lawyer and relief to his other corporate clients. Morris came away from the Supreme Court experience a little shocked at "how uninformed the justices were on the law" relevant to his case. Ironically, that's another reason to hire a specialist, he says. Although Ennis immersed himself in the law and facts of the case, he still ended up knowing less than Morris. The simpler, fresher view of the case allowed Ennis to better understand the perspective of the even less knowledgeable justices. That, plus familiarity with the Court, gave Ennis the right tools to guide the justices' thinking, Morris believes. The Minneapolis lawyer emphasizes that he has an ego and a national practice, and could have argued his case successfully. Not easily intimidated, he says many trial judges of his acquaintance give lawyers more hell than he saw the justices dish out. But the importance of the case -- which made it so tempting to keep -- is also what inclined him to hand the ball to Ennis to ensure the best for his client. |
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