Top Firms’ Supreme Court Business: Some Stay Close While Others Stay Away

Multiple services annually rank law firms along several dimensions and according to various measures.  Even with these rankings there is little objective gauge of a firm’s quality and rightfully so. There are many aspects that go into a firm’s relative quality and some are easier to gauge than others.  One thing that these rankings almost universally lack is a section specific to the Supreme Court.  This (lack of such rankings) is also somewhat intuitive.  The Supreme Court hears less than a hundred orally argued cases a year and that number is dwindling.  Many top-tier firms’ clients either do not have access to the Supreme Court or on the occasions that they might, do not wish to pay fees to try to litigate cases before the Supreme Court.  As such a focus on the isolating the Supreme Court is almost universally eschewed, this appears apt territory for examination. Just how often do these firms litigate in the Supreme Court? How do they stack up against each other? Which of their clients pursue cases to the top level of the United States court system? These are a few of the questions that will be examined below.

This post uses current rankings from Vault.com (which are regularly updated) and Supreme Court data relating to the firms identified by Vault dating back to the beginning of 2012.  Vault rankings are based on surveys of associates who vote for firms other than their own.  There are overall rankings as well as those separated by practice area.  The post looks at the Top 10 overall ranked firms and the Top 10 ranked appellate practices which are:

Overall Appellate
1 Cravath Swain Gibson Dunn
2 Wachtell Lipton Williams & Connolly
3 Skadden Arps Jones Day
4 Sullivan & Cromwell Bois Schiller
5 Davis Polk Kirkland & Ellis
6 Simpson Thatcher WilmerHale
7 Latham & Watkins Kellogg Hansen
8 Kirkland & Ellis Quinn Emanuel
9 Gibson Dunn Sidley Austin
10 Weil Gotshall Munger Tolles

 

Level of Involvement

The Top 10 overall ranked firms do not do the majority of their business in the Supreme Court.  In fact, some of the Top 10 do little business in the Supreme Court if any at all. This is especially the case with the top two overall ranked firms, Cravath Swain and Wachtell Lipton, which predominately focus on corporate/business matters.

BriefTypes

 

Although Cravath filed six merits briefs on behalf of direct parties since 2012, this number is quite low compared to other ranked firms, and leaves Cravath with the second fewest merits filings on behalf of direct parties.  Wachtell is the one firm out of the eighteen analyzed in the post without a single merits filing since 2012.  Wachtell’s attorneys filed three out out with ten briefs for the period on behalf of parties at the cert stage with the other seven briefs supporting amici.

Other firms on Vault’s list are much bigger players in the Supreme Court.  Four of these firms had over thirty merits filings on behalf of direct parties: Kirkland & Ellis, Latham & Watkins, and Skadden Arps and Gibson Dunn.  Kirkland & Ellis and Gibson Dunn are the only two to appear in the top appellate firm category as well.  Even though Kirkland & Ellis’ total number of filings far outnumber Skadden’s, Skadden filed the second most amicus curiae briefs of this group with 52.  Gibson Dunn’s attorneys filed the most amicus briefs with 99.

The next figure looks at aggregate counts for these firms’ SCOTUS participation in the form of briefs and cases.

BriefsCases

 

The two firms in both top overall firm and top appellate firm categories, Gibson Dunn and Kirkland & Ellis, filed the most briefs of this group with 347 and 284 respectively.  Skadden and Latham & Watkins make up the subsequent tier with 128 and 127 briefs.  After these comes Sullivan & Cromwell, which filed fewer than half of the briefs that Latham filed.

Which Cases?

Bringing the top appellate firms in along with the top overall firms, this section looks at the cases which involved more than one of these firms.  Looking at these eighteen firms’ filings from 2012, more than one of these firms filed briefs in 35 different cases.  The chart below lists these cases:

CaseNames.png

More of these firms filed briefs in Gelboim v. Bank of America Corporation than in any other case since 2012.  The Court in Gelboim examined when a district court’s decision is a final and appealable order in multidistrict litigation.  The glue that bound these firms to this case is the type of business that was a defendant in the original action: banks.

The firms that represented financial institutions in this case include Sullivan & Cromwell (with Boies Schiller) for Barclay’s Bank and for The Bank of Tokyo-Mitsubishi UFJ, Davis Polk for Bank of America, WilmerHale for The Royal Bank of Scotland, Sidley Austin for The Norinchukin Bank, Simpson Thacher for JP Morgan & Chase, Gibson Dunn for UBS, and Cleary Gottlieb for Citibank.  Each of the cases with more than two briefs from these firms included major corporation as a direct party aside from Fisher v. University of Texas at AustinFisher, a major affirmative action decision, had and has potential repercussions that extend beyond college admissions and into other domains.  Firms involved in this case include Gibson Dunn, Latham & Watkins, and Quinn Emanuel.

Favorable Outcomes

This section looks at the involvement and performance of these firms at the Supreme Court level and especially focuses on the top appellate firms.  Looking across both groups, the next figure shows the number of cases orally argued and decided since 2012 where at least one attorney from the firm was listed on the searchable version of the decision.

FirmLitigateCount.png

Sidley Austin led the pack with 39 cases followed closely by WilmerHale with 37 cases.  Two other firms with large Supreme Court involvement, Gibson Dunn and Jones Day came next.

Some of the most well-known Supreme Court attorneys practiced or practice on behalf of these firms.  These attorneys include the current Solicitor General Noel Francisco who worked for Jones Day and the Principal Deputy Solicitor General Jeffrey Wall who worked for Sullivan & Cromwell.  It also includes former SGs Ted Olson for Gibson Dunn, Seth Waxman for WilmerHale, Paul Clement for Kirkland & Ellis, Gregory Garre for Latham & Watkins, and Donald Verrilli now with Munger Tolles.

The next figure looks at favorable outcome percentage for the firms with the five highest percentages of favorable outcomes for the period since 2012.  This metric was created looking at the cases that were orally argued and decided by the Court, and then taking the percentage of cases where there was a clearly favorable outcome for a direct party represented by one or more of the firm’s attorneys.  Such an outcome was coded for the petitioner party if the Supreme Court vacated or reversed a lower court decision against the party or for the respondent party when the Supreme Court affirmed a lower court decision.

Top5.png

Three of the firms were awarded favorable outcomes more than 60% of the time.  Kirkland & Ellis, the only firm to appear on both the Top 10 overall firm ranking and Top 10 appellate firm ranking, had the highest percentage with two-third of its decisions in its favor.  Kirkland was followed closely by Jones Day and Quinn Emanuel with 63.16% and 62.5% favorable outcomes respectively.

Takeaways and Questions

We will not likely see many of the top ranked firms in the Supreme Court anytime soon.  Some will remain regular players before the Court (now more than before in Kirkland & Ellis’ case with the recent addition of Paul Clement and his appellate litigation firm Bancroft PLLC).  As we approach a Supreme Court term with some of the biggest cases in recent memory, and with a new justice that has yet to sit on the Court for a full term, one of the key questions will be whether the top appellate firms will be as successful before the justices now as they have been in the past.


On Twitter: @AdamSFeldman

6 Comments Add yours

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s