A specialized Supreme Court bar within private law firms has developed from the premise that lawyers with significant experience practicing before that Court are often best able to frame and successfully argue important legal issues pending there. For 25-plus years, business clients have embraced that view by regularly retaining appellate specialists to represent them before the United States Supreme Court. In addition to business clients, states—even those with their own appellate specialists—and municipalities increasingly are retaining outside counsel in the private sector to represent them in the Supreme Court. These trends reflect an awareness that the Supreme Court approaches cases on terms fundamentally different from any other court. This is because its docket is almost completely discretionary and because it does not view itself as a “court of error correction.” With respect to the former consideration, the Court’s docket continues to shrink; it heard oral argument in just 72 cases during October Term 2011, down from 78 in October Term 2010. Given that the Court receives more than 1500 paid petitions and over 7000 total petitions for review annually, appellate specialists play a critical role in navigating the obstacles to having certiorari granted. As to the latter consideration, once review is granted, the Supreme Court addresses each case with an eye toward creating rules of law to guide future litigation and conduct.
In recent years, the role of specialized appellate counsel has expanded to litigation in other appellate courts and even trial courts. This expansion has been fueled because the Supreme Court’s dwindling merits docket means that a federal appeals court or a state’s highest court will provide final review in the overwhelming majority of cases, and because clients recognize that the same benefits that appellate specialists offer in the Supreme Court also apply to the resolution of key legal issues that may control the outcome of high-stakes cases in lower courts.
Historical Development of the Modern Supreme Court Bar
The federal government has recognized the benefits of specialized appellate counsel for many years. The Solicitor General’s office—which has been called the “Tenth Justice”—litigates in the Supreme Court on behalf of the federal government, and attorneys in that office gain insights into the types of arguments and analyses that are likely to influence the Justices when they are deciding whether to accept a case for review or resolving cases on the merits. Additionally, the Department of Justice has appellate sections that present the government’s positions to the federal courts of appeals nationwide.
Private law firms’ dedicated Supreme Court and Appellate practice groups emerged in the 1980s, often stocked with veterans of the Solicitor General’s office. Clients realized that appellate specialists could provide unique benefits in the Supreme Court. These counsel could tailor issues in a manner designed to increase the chances that review would be granted and of success on the merits. The stakes at the Supreme Court justified retention of appellate counsel because those decisions would have rippling effects in litigation across the country.
Now, nearly 30 years later, business clients, as well as states and municipalities regularly retain Supreme Court counsel to handle and/or assist trial counsel with the preparation of cases at the Supreme Court. It once was rare for even one experienced lawyer to handle a matter before the Court; now most Supreme Court cases involve two or more experienced lawyers. Similar to attorneys in the Solicitor General’s office, in recent years, some lawyers in private practice have had five or more arguments in a single term, and, during the past two terms, approximately 15 advocates in private practice have had two or more arguments in a term.
The representation of amici curiae continues to be a central part of Supreme Court practice. Many of the same, specialized counsel who represent parties in the Supreme Court are retained by trade groups filing briefs as amici curiae to ensure that the Court is fully informed of legal or factual points of importance to the business community. In high profile cases, it is not uncommon for dozens of amicus briefs to be filed, and the Supreme Court often explicitly addresses amici’s arguments in its opinions.
Expansion To Other Courts
Appellate specialists increasingly are retained to represent clients in federal courts of appeal, state high courts, and even trial courts. The Supreme Court now accepts fewer than 80 cases each year, whereas it decided 150 to nearly 200 cases on the merits in the 1980s, when the appellate specialists emerged. Because federal courts of appeals and state high courts effectively will be the courts of last resorts for many important cases, businesses recognize that it is critical to have skilled advocates address complex legal issues. Just as in the Supreme Court, the outcome of these important lower court cases turns on the ability to persuade trial and appellate court judges, who often are generalists by training, on novel and/or complex legal issues. Thus, appellate specialists now often are called upon to play prominent roles in intermediate appellate courts and at the trial level. Moreover, because many of these governing legal principles were developed in Supreme Court decisions, experienced appellate counsel are well-positioned to argue how these principles should apply to novel circumstances arising in the lower courts.
Because almost any area of law can present complex legal issues, it is difficult to generalize about the areas in which appellate specialists may play a role. Nonetheless, several types of appeals and legal issues in which appellate specialists figure prominently are noted:
Patent Appeals. Because it has exclusive and special jurisdiction over patent appeals, the United States Court of Appeals for the Federal Circuit is at the forefront of some of the most important litigation in the country. Judges on the Federal Circuit have long encouraged the use of non-patent and experienced appellate lawyers to handle matters before that court. Many sophisticated clients have heeded that advice and now regularly retain appellate specialists to handle patent appeals. In this context, there is often a translation function that is important to effective advocacy. Therefore, retaining an appellate specialist can be very helpful in communicating with generalist judges on highly technical subjects. The Supreme Court’s docket also has facilitated this process. For instance, in both the 2010 and 2011 terms, the Supreme Court heard three cases from the Federal Circuit. In recent terms, the Supreme Court has heard as many as four cases from the Federal Circuit, i.e., more than five percent of the Supreme Court’s merits docket. A number of those recent patent cases were handled by appellate specialists, not patent lawyers, in the Federal Circuit, which can be beneficial to framing issues for eventual Supreme Court review.
Administrative Law And Proactive Litigation Against The Government. Appellate specialists regularly are involved in high-profile litigation arising from actions of federal agencies that develop the rules governing industries. Challenges to such agency action may turn on principles of administrative law that recur frequently before courts such as the Court of Appeals for the District of Columbia Circuit. These challenges to agency action span the spectrum of substantive areas from environmental law, telecommunications law, federal securities law, employment law and food and drug law.
While litigation filed against the federal government related to the Affordable Care Act is the most prominent example, appellate specialists are also frequently retained to bring impact litigation against federal or state government entities. When new legislation or regulation threatens the well-being of a particular company or entire industry, clients have recognized that appellate specialists can assist in challenging affirmatively—rather than defensively following government enforcement—the legal bases for such legislation or regulation.
Compelling Arbitration. Over the last few terms—as in the past decade more generally—the Supreme Court frequently has resolved whether business-to-business or consumer cases are subject to arbitration. Arbitration agreements in commercial and consumer agreements are prevalent, and thus have spawned litigation nationwide. Because arbitrability often turns on the intersection of the Federal Arbitration Act and other federal statutes or rules, appellate specialists are well-positioned to handle these arguments throughout the litigation and to preserve them for potential Supreme Court review.
Class Certification. Particularly given the Supreme Court’s decision during the 2010 Term in Wal-Mart v. Dukes that struck down a massive nationwide class, appellate counsel continue to play a vital role in appellate and trial courts as businesses defend against certification of class actions. Issues of class certification—and efforts to immediately appeal adverse class rulings—are critically important to business clients.
Federal Preemption. During the October 2011 Term, the Supreme Court decided another four cases involving the federal preemption of state law. In recent years, the Supreme Court has decided as many as five preemption cases in a term. Specialized appellate counsel continue to take a lead role not only in briefing and arguing these cases when they reach the Supreme Court, but also in applying preemption law to new legal disputes.