National : An Introduction
Appellate Litigation Overview
The basic premise underlying the development of a specialized “Supreme Court” bar within private law firms is the recognition that lawyers with significant experience practicing before that Court are often best able to frame and successfully argue important legal issues pending there. Over the past 25 years, that belief has been embraced by business clients that regularly retain appellate specialists to represent them in cases before the United States Supreme Court. What that trend reflects is an awareness that the Supreme Court approaches cases on terms fundamentally different than any other court. This is because its docket is almost completely discretionary and because it does not view itself as a “court of errors.” The Supreme Court thus addresses each case with an eye toward creating rules of law to guide future litigation and conduct. These traits make advocacy in that Court unique.
In recent years, the presence and importance of private appellate counsel in high-stakes litigation has expanded to encompass litigation in the intermediate appellate and in the trial courts as well. This expansion has been fueled by a similar recognition that important cases arise throughout the country and the same benefits that appellate specialists offer in cases before the Supreme Court also apply to the resolution of key legal issues that may control the outcome of a client’s most important trials and appeals.
The benefits of specialized appellate counsel have been recognized for many years by the federal government. The Solicitor General’s office litigates cases pending in the United States Supreme Court on behalf of the federal government, and attorneys in that office gain valuable 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. Similarly, all of the major litigating components of the Department of Justice have appellate sections that present the federal government’s positions to the federal courts of appeals throughout the country.
The emergence of dedicated Supreme Court and Appellate practice groups within private law firms dates back to the 1980s. The premise underlying this development was that appellate specialists could provide benefits to clients in high profile cases before the Supreme Court. Counsel could tailor issues and arguments in a manner designed to increase the chances that review would be granted and that such review would be successful on the merits. The stakes at the Supreme Court justified retention of appellate counsel because the benefit of a favorable decision (and risk of an unfavorable outcome) would extend not only to the case decided by the Supreme Court, but also to litigation across the country involving the same or similar recurring issues.
Twenty five years later, business clients regularly retain Supreme Court counsel to handle and/or assist trial counsel with the preparation of cases at the Supreme Court. There was a time when it was rare for even one experienced lawyer to handle a matter before the Court; now most of the Supreme Court’s cases involve two or more experienced lawyers. Likewise, the same counsel are retained by trade groups filing briefs as amici curiae to ensure that the Supreme Court is fully informed of legal or factual points of importance to the business community in the cases that the Supreme Court may address. These trade groups, and the members that they represent, have recognized that appellate counsel can be particularly effective in highlighting to the Court the concerns of their members in cases of nationwide importance.
More recently, the role of appellate counsel has expanded beyond the confines of the Supreme Court, which accepts fewer than 80 cases each year for review. The expansion is driven by two realities: (1) many of the most important cases to businesses are, in fact, pending in the lower federal and state courts, and (2) the outcome of many of these important 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. Appellate lawyers increasingly have been called upon to apply their expertise to shape the litigation in these categories of cases.
Expansion To Other Courts
Participation by “Supreme Court” counsel has expanded so that appellate specialists often are called upon to play prominent roles in intermediate appellate courts and at the trial level. A number of examples illustrate this development.
Patent Appeals. Because it has exclusive and special jurisdiction over appeals of patent cases, the United States Court of Appeals for the Federal Circuit has become a court 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, and appellate lawyers can be very effective in communicating with generalist judges on highly technical subjects.
Administrative Law. Appellate specialists likewise have been involved in high-profile litigation involving disputes arising from actions of federal agencies that play a prominent role in developing the rules by which whole industries are governed. Challenges to such agency action may often turn on principles of administrative law that recur with frequency 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.
Multi-District or Complex Litigation. Appellate specialists have also staked out prominent roles in high-profile multi-district litigation pending before a single district court judge to whom hundreds or even thousands of individual cases may have been assigned. In this realm, the importance of pre-trial issues is magnified given the volume of cases to which any common ruling will apply and the reality that such rulings often will be insulated from immediate review. Conversely, appellate counsel serve a critical role if the need arises to seek immediate discretionary appellate review of an adverse trial court ruling. Given the stakes, business clients often look to appellate counsel to present, frame and preserve dispositive and non-dispositive issues (e.g., the proper scope of discovery or the admissibility of expert testimony). Rulings on these formative issues can have a profound effect on the management of complex litigation and the manner in which such litigation will be resolved.
Expansion To Critical Legal Issues
The role of appellate counsel has expanded horizontally so that business clients enlist appellate counsel to address cutting-edge legal issues wherever they arise. Many of these governing legal principles were developed initially in litigation before the Supreme Court. Thus, appellate counsel are retained to argue how these principles should apply to novel circumstances arising in the lower courts. Here too, a number of examples are helpful to illustrate these developments.
Punitive Damages. Over the past two-decades, the Supreme Court has developed a framework for assessing the procedural and substantive validity of punitive damages awards under the Federal Constitution. Appellate counsel have been retained to ensure that appropriate challenges to the availability and amount of punitive damages are effectively presented in both trial and appellate courts within that existing legal framework. In this respect, the role of appellate counsel has run full circle because some of the same appellate specialists who advocated for the legal standards adopted by the Supreme Court now are arguing in the lower courts how these standards should apply to new and distinct legal circumstances.
Federal Preemption. As with punitive damages, preemption of state-law claims is a recurring issue that generates multiple cases decided by the Supreme Court each year. Appellate counsel are taking a lead role in applying preemption law to new legal disputes. Such litigation is pending in the trial courts, appellate courts and in the United States Supreme Court. This has been a growth area for appellate specialists, who have been retained to represents the interests both of plaintiffs and of business clients in these cases.
Class Certification. Appellate counsel also play an important role in defending against class actions based again on the requirements governing class certification as explained in cases decided by the United States Supreme Court. Issues of class certification – and efforts to appeal adverse class rulings immediately – are critically important to the resolution of some of the most important litigation facing business clients. Resolution of legal issues governing class-certification of potentially hundreds or thousands of individual claimants warrants the expertise of appellate counsel to ensure that mandatory requirements and limitations on such lawsuits are observed in trial and on appeal.
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The role of appellate counsel has developed in recent years to encompass participation not only at the Supreme Court, but also in trial and appellate courts in high-stakes litigation on some of the most important and pressing legal issues facing business clients.
Former Solicitor General Paul Clement
recently left King & Spalding LLP to join Bancroft PLLC. He draws praise as a “superstar appellate litigator,”
and has a reputation as a leader in the field, having argued over 50 cases before the US Supreme Court. “Stellar appellate lawyer,” Kathleen Sullivan
is the chair of the national appellate practice at Quinn Emanuel Urquhart & Sullivan LLP, and is the former dean of Stanford Law School. Peers think it “an honor to stand at the podium with her,”
and market commentators point out: “She has quite the touch with the judges, she is personable, witty and super smart.”
She represents Wyeth, a division of Pfizer, before the United States Supreme Court in a challenge to the pre-emption provisions of the National Childhood Vaccine Injury Act of 1986. After five years of cochairing the Supreme Court practice at Akin Gump Straus Hauer & Feld LLP, Thomas Goldstein
re-joined his old firm Goldstein, Howe & Russell. According to impressed market commentators: “He is an appellate phenomenon.”
Miami-based Bruce Rogow
recently joined Alters Law Firm, having previously operated as a sole practitioner. He focuses on major federal and state civil and criminal appeals. Joshua Rosenkranz
is the chair of Orrick, Herrington & Sutcliffe LLP’s Supreme Court and Appellate Litigation practice. He wins accolades for his “brilliant analysis and judgment.”
Clients appreciate how he “rethinks every case from the ground up,”
and add: “He can take the most complicated legal or technological issue and present it in a way that seems like common sense.”
The head of the appellate practice, Mike Hatchell
of Locke Lord Bissell & Liddell LLP, impresses market commentators as “a very influential and well-respected appellate lawyer, particularly in the Texas Supreme Court.” Jonathan Franklin
is the current head of Fulbright & Jaworski LLP’s Supreme Court and appellate practice. He is adept at handling cases in a variety of areas, including constitutional law, administrative law, foreign sovereign immunity, IP and contract matters, as well as tort, antitrust, labor, telecom and international law. “Appellate talent,” Lisa Blatt
is the head of the appellate and Supreme Court practice at Arnold & Porter LLP and has “hit the ground running,”
according to impressed sources. Since joining the firm in 2009, after serving as an Assistant to the Solicitor General at the Department of Justice, she has already been granted two certiorari petitions by the Supreme Court and has argued a case before the high court. Miller Baker
is cohead of McDermott Will & Emery LLP’s appellate practice group. He is prized for his “in-depth knowledge of constitutional and jurisdictional issues,”
and focuses his practice on appellate and constitutional litigation. Linda Coberly
of Winston & Strawn LLP is dubbed “a highly skilled advocate”
by interviewees. She is the vice chair of the firm’s appellate and critical motions practice group, devoting her time to appellate advocacy and complex commercial litigation. Daniel Collins
is based in the Los Angeles office of Munger, Tolles & Olson LLP. He devotes his practice to appellate litigation and complex civil litigation, and has represented clients in appellate matters in the Ninth Circuit, the US Supreme Court, and the California appellate courts. Raoul Cantero
of White & Case LLP is “a smart, diligent and superior appellate lawyer, who is accessible and easy to work with,”
according to impressed interviewees. He heads the Miami appellate practice and is adept at handling cross-border disputes relating to Latin America. Douglas Hallward-Driemeier
joined Ropes & Gray LLP in 2010 and heads the firm’s appellate and Supreme Court practice. The former Assistant to the Solicitor General is praised as “an exceptional advocate,”
and offers particular expertise in federal preemption, the False Claims Act, securities litigation, and intellectual property matters. Stephen Kinnaird
is the appellate practice co-chair at Paul, Hastings, Janofsky & Walker LLP. Noted as “a talented and charismatic lawyer,”
he has particular expertise in matters involving energy, transportation, IP, antitrust, environmental, telecommunications, administrative, criminal, and constitutional law. He represented Jose Padilla in the United States Supreme Court in 2009. The Court ruled in favor of his client, holding that the Sixth Amendment imposed duties upon defense counsel to advise criminal defendants of the deportation consequences of criminal convictions. Peers think highly of Kannon Shanmugam
of Williams & Connolly LLP. He focuses on Supreme Court and appellate litigation and joined the firm in 2008 after serving as an Assistant to the Solicitor General in the Department of Justice. Market commentators describe Helgi Walker
of Wiley Rein LLP as “dynamite in the courtroom and a forceful oral advocate.”
She is particularly adept at handling appellate matters involving common carrier, wireless, cable, Internet and broadcast issues. Highlights of the past year include successfully petitioning the US Court of Appeals for the DC Circuit on behalf of wireless and paging service providers for review of an FCC rule which imposed a mandatory eight-hour back-up power rule for all cell sites. Up-and-comer Catherine Stetson
of Hogan Lovells US LLP impresses with her “brilliance of mind and ability to grasp complicated technical matters.”
Peers describe her as “a delight to work with,”
and prize her excellent analytical and writing skills. Jeffrey Lamken
of Molo Lamken LLP is prized as “a wonderfully talented appellate lawyer,”
and is described by peers as “a joy to work with.”
He handles matters in a wide range of areas, including administrative law, civil rights, criminal procedure, energy law, intellectual property, and telecom law.