Not All Appeals Are Equal

Every year the lawyer research and ranking company Chambers & Partners (sometimes mentioned as C&P herein) puts out a list of top appellate lawyers and firms (in a previous post I looked at some of the listed firms’ cert performance). Chambers uses a mix of qualitative and quantitative methodology to come up with its various lists.  Since its group of top appellate lawyers presumably made the cut based on their prowess in appellate law generally, this list is far from Supreme Court specific. In fact, as most lawyers are aware, appellate practice traditionally is based in federal and state courts of appeal and often has little to do with Supreme Court practice.  Since the Supreme Court is not necessarily the principal court of practice for this group of attorneys, I thought it would be interesting to see how involved the group of 66 attorneys in Chambers’ list of top appellate lawyers have recently been in Supreme Court litigation. To do this I looked at several measures of participation for the previous and current Supreme Court terms.

Many of the 66 attorneys in Chambers’ list of top appellate lawyers were involved in multiple cases across the 2016 and 2017 Supreme Court terms. In fact, when we look at their total participation in terms of merits and amicus briefs that name them as counsel we have 282 briefs or an average of 4.27 briefs per attorney.  Now this measure is quite skewed as the top participating attorneys were involved in well over five cases during this period and the least involved attorneys were involved in few to no cases in the Supreme Court. Just comparing the 2016 and 2017 terms, these attorneys were and are slightly more involved in cases this term than last.

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So which attorneys made Chambers’ list and how many cases were they involved in respectively? The following figure shows the attorneys that participated in Supreme Court cases over the past two terms and how many cases they were listed in.

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The individuals in this figure were involved in cases as amici and merits attorneys and, as we will see, some of these attorneys were disproportionately involved at one level or the other while others had mix of involvement.  The top attorney by case involvement for instance, Andrew Pincus of Mayer Brown, reached this platform primarily through amicus participation.

 

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With his involvement in 20 amicus briefs across these two terms Pincus accounts for more than double the participation of the next most involved amicus attorney in the list, David Frederick.  Pincus’ amicus participation runs the gamut from representing E-Bay in the recently argued South Dakota v. Wayfair to representing the Chamber of Commerce in Lucia v. SEC which will be argued on April 23rd.

Other attorneys on the amicus list like David Frederick and Paul Clement were also involved in a slew of cases at the merits level.

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Neal Katyal’s involvement on cases’ merits over the past two years though surpasses that of Clement, Frederick, and all of the other attorneys on Chambers’ list with 11 cases.  These cases include his representation of Hawaii in the highly anticipated case – Trump v. Hawaii.  Clement recently argued on behalf of the winning party in Encino Motorcars v. Navarro.  Rounding out the five most involved attorneys at the merits level we have Orrick’s Josh Rosenkranz, William & Connolly’s Kannon Shanmugam, and Goodwin’s William Jay.

The level of participation from these 66 attorneys was far from equal across cases. Certain high-profile cases led to the involvement of greater numbers of these attorneys.  Still, there are cases involving several of these attorneys that might be somewhat surprising.

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The case involving the most attorneys from Chambers’ list over the past two terms was the patent case Oil States Energy Services v. Greene’s Energy Group.  While Oil States has not received as much coverage in the popular press as other cases like Masterpiece Cakeshop, the possible repercussions of this ruling for many businesses created large stakes for powerful entities affected by patent litigation.  The travel ban case – Trump v. Hawaii – ranks second on the list followed by Gloucester v. G.G. in which the Court vacated and remanded the lower court’s decision based on the federal government’s changed stance in the matter.

Even though these attorneys were and are involved in multiple cases over the past few terms, this does not necessarily signal their continued involvement in Supreme Court cases moving forward.  With the current strength of the “Supreme Court Bar” of elite attorneys though it should not be surprising that many of these attorneys continue to be involved in a high level of Supreme Court litigation.

The next figure looks since January 1, 2017 at granted, denied, and pending cert petitions from the attorneys shown in previous figure that were involved in at least three merits cases. The numbers are based on the dockets where they filed cert petitions.  This figure should be taken with a grain of salt as it encapsulates a specific moment in time. Some of the pending petitions could be granted or denied in the near future shifting the composition of this figure substantially.

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This figure has some overlap with the previous figure as the granted cases were predominately already argued.  Nonetheless we see that even with their success, these attorneys file a fair share of petitions that are denied. We also see that almost of the attorneys on this list have current petitions in the pipeline.  Kannon Shanmugam has the most pending petitions of this group followed by Paul Clement. Suffice it to say that this group should be quite involved in forthcoming Supreme Court cases and petitions.

While not all attorneys from Chambers and Partners’ list are highly involved in Supreme Court litigation many are, and with the continued involvement and success of elite Supreme Court attorneys there is no suggestion that this trend will cease to persist.  A future cut at this question may compare attorneys covered by Chambers’ list with other top Supreme Court attorneys not mentioned by Chambers.  While there are many ways to measure Supreme Court success, this is one more piece of evidence that the acme of U.S. Courts is dominated by a group of veteran attorneys and will continue to be so at least for the foreseeable future.


On Twitter: @AdamSFeldman

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