High and Mighty
Watchers of the U.S. Supreme Court have had plenty to get excited about this year, thanks to two new justices, plus a weighty docket examining presidential powers and core constitutional principles.
But there also has been plenty of action outside the courtroom, as many of the country’s most prestigious firms have been hustling to create, revamp or upgrade their Supreme Court practices. It has gotten so intense, in fact, that one legal blogger and top-flight Supreme Court litigator even likened it to an explosion.
Which leads many to wonder what’s behind the build up. After all, Supreme Court practice groups aren’t necessarily seen as revenue generating ventures. The highly accomplished lawyers who litigate at this level don’t come cheap, and there are few opportunities for argument since the high court only grants cert each year to 70 to 90 cases.
The answer, of course, is money. Clients still pay good money for Supreme Court work, which more and more begins at the trial level. Add amicus brief writing—something that is on the rise even as the number of merits cases has decreased—and these high-profile litigators have plenty to do.
Indeed, the consensus among Supreme Court lawyers is that revenue generation stems less from actual Supreme Court related work and more from the myriad ways the high court practice groups interact within the firm to boost billing and bring in new business.
“I don’t think anybody can do Supreme Court work and nothing but Supreme Court work,” says veteran high court practitioner Barry Sullivan, a former assistant solicitor general who co-chairs Chicago-based Jenner & Block’s Supreme Court practice. Mark Levy, a former assistant solicitor general who directs the appellate advocacy group at Kilpatrick Stockton in Washington, D.C., agrees. “No firm really tries to make a Supreme Court practice stand alone,” he says.
But Supreme Court lawyers say most of their bread and butter is earned at a lower level, and not just in appellate work. Many say they are getting involved at the trial level, reaching out to litigation departments both in house and outside to strategize as cases are being prepared.
“Increasingly, clients are interested in having our input at the pretrial and trial stages of litigation,” Sullivan says. “When somebody does get an important piece of litigation, they’re thinking forward earlier.”
Lending Strategic Expertise
This type of interaction also helps create a more complete level of service that many clients have come to appreciate, if not expect. Sullivan says his clients are more savvy and sophisticated than when he first started practicing before the high court more than 30 years ago. Now clients may quickly recognize that a case is beyond settlement and will be long-fought in the trial and appellate courts, possibly resulting in splits among the circuits and an ultimate battle in the court of last resort. His involvement can also help trial lawyers position a case so that issues can be preserved on appeal, he says.
And because most cases settle, Sullivan says, it’s getting easier for clients to identify what issues are worth taking to trial—and which are worth litigating to the bitter end to create case law in the company’s favor.
Levy says that while some Supreme Court litigators might spend 50 percent or more of their time on pure Supreme Court work, the percentages vary depending upon how the practice is set up. For instance, Sidley Austin has a dedicated “United States Supreme Court” practice and Jones Day calls its practice “issues and appeals.” Many others include their Supreme Court specialty within a general appellate litigation practice.
Also bringing its appellate lawyers into earlier phases of the litigation process is Wilmington, Del.-based DuPont Co., a pioneer of innovative partnerships between in house and outside counsel. This integration process can begin as early as when a complaint is filed.
“I’m looking for a core group of appellate experts [on whom] we can rely on a very dedicated basis,” says Thomas Sager, who is vice president and assistant general counsel at DuPont. The idea is for these appellate lawyers to work seamlessly with Sager’s in-house team to identify issues at the earliest phases of litigation and to develop strategy.
“Rather than waiting for the end result—a $30 million verdict to overturn—they identify issues that can be taken beyond the trial level … to make sure that case law is developed in a way that supports good science,” Sager says.
This approach doesn’t just make good litigation sense, it also helps boost firm revenue. Clients who pay a premium for lower court legal work often don’t want to pay the same amount for a single lawyer or smaller team of lawyers to take the case through the appellate courts, say Supreme Court lawyers. But clients don’t hesitate to pay for advice at the time of trial.
It’s a psychological hurdle for clients, says Levy. “Clients probably pay more for paralegal services at the trial level, without ever questioning it, than they would pay some appellate lawyers for an entire appeal,” he says. “It’s hard for clients to separate out discrete parts of the legal bill. They are more cost conscious than they are in the trial court.”
A Supreme Court group’s presence in the firm can also help bring in clients, even if it doesn’t rack up a single billable hour for them.
Presence Pays Off
Superstar lawyer Tom Goldstein, who made a high profile move from his own upstart firm to a position with Akin Gump Strauss Hauer & Feld in early May, says most Supreme Court practices earn revenue for a firm by driving “a significant amount of business because of their profile and the assurance it gives clients about the high end representation they will get.” (Goldstein will take his popular SCOTUSblog with him to Akin Gump.)
And having a Supreme Court group doesn’t hurt recruiting, either. Goldstein notes that his new firm has lured the top graduates from Harvard and Stanford the last two years running, and that it just signed on two lawyers who will clerk at the Supreme Court before joining the firm.
Ultimately, the ability to handle a client’s case from trial court through the highest court in the land is a plus. Raymond Michael Ripple heads the appellate practice group at DuPont and has argued on behalf of the company before the Supreme Court. He says that once cert is granted, four out of five times his company’s strategy would be to stick with the same appellate team it has used up to that point.
But, he says, “when you finally get down and have to argue the case in the Supreme Court, it becomes a very personal thing. Everybody understands, at the highest level, you’ve got to make a very fine choice.”
Building the Band
For many law firms, creating a Supreme Court practice group is akin to courting Mick Jagger.
Meet the high court rock stars: former Solicitors General Ted Olson, who has argued a mind-boggling 43 cases before the Supreme Court, and Seth Waxman, who racked up an equally impressive 45; Carter Phillips, a former clerk for Chief Justice Warren Burger who comes in with 51; and, before he became chief justice, John G. Roberts Jr., coming in at 39 arguments.
In the increasingly competitive race to build prestigious Supreme Court practice groups, a lawyer’s marquee value matters—especially since the number of lawyers topping these elite charts is only getting smaller.
It’s not hard to be admitted to practice before the Supreme Court. But it’s a whole different story when it comes to building a practice that will bring you face-to-face with all nine justices on a regular basis.
Sixteen is how many times Tom Goldstein has argued before the high court. Goldstein left his Supreme Court boutique in May to head Akin Gump Strauss Hauer & Feld’s Supreme Court practice, a move that surprised many court watchers.
Before moving from Goldstein & Howe to Akin Gump, he noted on his popular Web log that the number of private party arguments conducted by “repeat players” was growing. It was an observation that also reflects the latest research.
Political science professor Larry Baum of Ohio State University in Columbus has tracked patterns of participation in Supreme Court cases for years, publishing results in updates of his book The Supreme Court.
What he found was that, over a five-year period from 1999 through 2004, more and more of the same private practice lawyers are coming back to argue. “There’s a steady pattern of growth in repeat appearances by attorneys,” Baum says.
Explaining the change is easy: “The stakes in Supreme Court cases are sufficiently high,” Baum says, meaning it is inevitable that clients with the money would seek out Supreme Court advocates with the expertise the clients desire.
“It’s not reasonable not to take advantage of that if you have access to those resources,” Baum says. “If you’re able to get Carter Phillips to represent you, why not?”