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The Firms That Won Big at the Supreme Court

In this article, Law360 highlights Kirkland’s four U.S. Supreme Court wins in the 2019 term. The article discusses arguments by Kirkland partners Paul Clement, K. Winn Allen and Dale Cendali.

In any typical Supreme Court term, advocates prepare and practice for these high-stakes encounters with intensity and focus. Many who appear regularly have habits, methods and rituals they lean on as they head toward that oral argument — where each side has just 30 minutes to sway the justices.

Normally, the high court's "hot bench" of eager justices will spend those 30 minutes peppering advocates with questions, often using the brief time not just to clarify their own thinking but to highlight issues and arguments for their fellow justices. Advocates must be prepared for frequent interruptions, sharp remarks and long hypothetical questions.

But this was a term when advocates had to truly be ready for anything.

The coronavirus pandemic pushed the court to shut down in-person oral arguments in early March, and when the justices returned for an unprecedented sitting in May, the arguments were held remotely and livestreamed for the first time in the court's history.

"In some respects, it's remarkable how the court, which I don't think is designed to quickly abandon its traditions, modified things in order to have those arguments. That in a lot of ways was very impressive, but it obviously created a very abnormal term," said Paul Clement, a former U.S. solicitor general and partner at Kirkland & Ellis who argued 6 cases this term, including one of the cases in the May sitting.

And for advocates preparing for those arguments, their training regimen also had to change, particularly their approach to moot courts.

"There were a lot more Zoom moots, telephone-only moots, and calls to our wonderful IT department to help with equipment," said Williams & Connolly's Lisa Blatt in an email.

Blatt argued the first telephonic argument in the May sitting, in USPTO v. Booking.com , in a case that was closely watched by court observers to see how this unprecedented remote argument experiment would play out.

"When the argument happened, I tried to treat it like it was in person — I had my own podium, I wore the same outfit I'd wear to court, and turned my dining room table into a counsel table with a podium and the briefs placed precisely how I would have had them in court," Blatt said.

Justices and advocates alike were forced to find their own ways to adjust to audio-only argument conditions, broadcast to the world in real time. Both sides woke up to many of the same challenges other workplaces were facing, including participants who cut each other off, dialed in from unusual locations, expressed themselves in surprising ways, or, unfortunately, forgot to mute themselves at important moments.

But whether the arguments were in person or remote, attorneys at these 10 law firms found ways to make their case to the justices.

A firm had to argue at least three times to make the list, and several emerged from the fray with an impressive win rate.

Kirkland & Ellis LLP's well-known appellate practice has a remarkable number of cases pending before the high court in any given term, and this was no exception.

Kirkland's Paul Clement, a former U.S. solicitor general and former law clerk to Justice Antonin Scalia, argued six of the firm's eight cases, scoring a win for Affordable Care Act insurers in a funding dispute over billions of dollars lost in the first few years of the act, and a win on behalf of the developers of the $8 billion Atlantic Coast gas pipeline in a fight over right-of-way access across the Appalachian National Scenic Trail.

Law360 declined to score two cases Kirkland argued — New York State Rifle & Pistol Association v. City of New York and IBM v. Jander  — where the justices took unusual actions that could not be clearly viewed as a win or a loss for either side.

Clement also notched a victory on behalf of the Catholic nonprofit Little Sisters of the Poor Saints Peter and Paul Home, in yet another case over the ACA's contraception mandate to reach the high court. The case was one of the handful argued remotely in May.

Clement, who said he is a big believer in the power of moot courts to prepare an advocate for oral argument at the high court, also said he tried to stick to some tried and true routines for that May case, with some exceptions.

"When life throws you a curveball, one way to try to minimize the disruptions is to try to stick with your routine. That's what I did for the most part. I did certainly modify my moot court preparation — my moot courts were telephonic moot courts."

The telephonic moot courts were also a good way to get a feel for how an audio-only format, in which the justices ask questions one after the other in order of seniority, might alter the typical flow of the argument, Clement said.

"It was done, I think, as a necessary accommodation by the court to the limitations of telephonic technology, but it was probably the single biggest difference in the dynamic compared to a more typical live argument," Clement said.

"The fact that one justice has the floor for a few minutes gives that justice a kind of unique control over that time period, unlike the typical argument where a justice may return back to a theme, or, as you're answering another justice's question, jump in and say, well, is that really consistent with something you said earlier? None of that really happens in the sequential questioning," he added.

Clement was asked by the court to defend the Ninth Circuit's decision that the Consumer Financial Protection Bureau's director was constitutionally permitted to be removable only for cause, a lower court decision the justices reversed in a 5-4 ruling on June 29th.

Similarly, Kirkland's K. Winn Allen, who clerked for Justice Samuel Alito before joining Kirkland, was appointed by the Supreme Court to brief and argue Holguin-Hernandez v. U.S. , in order to defend the Fifth Circuit's approach to sentencing appeals after the solicitor general's office declined to do so.

In another star turn, Kirkland's IP powerhouse Dale Cendali scored a win for jeans maker Lucky Brand in a long-running trademark fight.

Gibson Dunn & Crutcher LLP's appellate practice also argued a striking number of cases before the justices this term, racking up five oral arguments between them.

The firm's Ted Olson, who served as solicitor general under President George W. Bush, scored a win with a high court ruling that blocked the Trump administration from terminating the Deferred Action for Childhood Arrivals program.

Gibson Dunn partner Miguel Estrada, a former assistant solicitor general who clerked for Justice Anthony Kennedy, notched a victory on behalf of Comcast Corp. in a ruling that set a high bar for allegations of racial bias in contracting.

The firm's Amir Tayrani and Matthew McGill also argued before the high court this term, in Monasky v. Taglieri , an international custody dispute, and Opati v. Sudan , a fight over damages related to the 1998 embassy bombings in Kenya and Tanzania.

McDermott Will & Emery LLP's appellate practice got a boost last June when appellate attorneys Paul Hughes and Michael Kimberly left Mayer Brown LLP to lead that group. The pair wasted no time adding to their oral argument tallies, appearing this term before the justices in cases covering trademark, immigration and deportation questions.

"Building out a robust and active Supreme Court and appellate practice at McDermott has been the opportunity of a lifetime. Paul and I were especially happy to be able to bring our longstanding leadership in the Yale Supreme Court Clinic with us to McDermott," Kimberly said.

Hughes had a particularly busy term before the high court, arguing three cases and scoring wins in a pair of deportation cases, one of which gave two deported men a shot to return to the U.S. after the justices said federal courts do have the authority to review their challenges. In the second of those two cases, the court's ruling will allow foreigners with criminal convictions who fear they will be tortured if they are deported to fight denials of requests to stay in the U.S. in federal court.

O'Melveny & Myers LLP special counsel Jeffrey Fisher, who has continued to work as co-director of Stanford University Law School's Supreme Court Litigation Clinic since joining the firm in the spring of 2018, was again a repeat player this term, arguing two cases before the justices, including one of the remote arguments in May.

In a victory for Fisher in April, the Supreme Court decided to overrule a long-standing precedent, finding nonunanimous jury verdicts in criminal cases unconstitutional.

O'Melveny's Kendall Turner, who clerked for Justice Stephen Breyer, scored a win in her debut argument in Holguin-Hernandez v. U.S. , when the Supreme Court ditched a Fifth Circuit rule requiring criminal defendants to formally object to a sentence in order to preserve their ability to appeal its reasonableness.

"Our team had a great run at the court this Term," said Jonathan Hacker, chair of O'Melveny's Supreme Court and appellate practice group. "Our work reflected the breadth and diversity of our skills and our team."

Jenner & Block LLP, Jones Day, Goldstein & Russell PC, Hogan Lovells, Williams & Connolly LLP and WilmerHale each argued three cases before the Supreme Court this term, scoring wins in cases featuring questions of trademarks, arbitration, bankruptcy, and debt collection.

Shay Dvoretzky of Jones Day scored one victory for a French unit of General Electric Co. in an ongoing multimillion-dollar dispute with an Alabama steel plant owner, and racked up a second win in a battle over the time limits to file Fair Debt Collection Practices Act suits. Jones Day's Yaakov Roth also notched a win in the 'Bridgegate' case, when the justices unanimously ditched the convictions of two former New Jersey public officials.

"Our three wins before the court this term show how our deep bench of appellate lawyers has shaped the law in different areas," said Beth Heifetz, practice leader for Jones Day's issues and appeals practice, in an email. "All three will have far-reaching consequences."

Williams & Connolly lured Lisa Blatt from Arnold & Porter last term to take over as chair of the appellate practice, and she wasted no time racking up wins this term.

She argued the first case of the historic May sitting, scoring a victory from that closely watched oral argument, with the justices handing down a ruling in the final days of the term in favor of client Booking.com.

Blatt, who leads the firm's appellate practice with Amy Saharia and Sarah Harris, said the firm's Supreme Court wins reflect a "true team effort."

"Both the briefing and arguments reflect our grit and joy in framing the cases," Blatt said.

Jenner & Block's Adam Unikowsky had another busy court term, with arguments in two cases, including his representation of the Montana Department of Revenue in a hot-button case over a state scholarship program that the court eventually ruled should apply to all qualifying private schools, including religious ones.

The firm's Ian H. Gershengorn, who joined Jenner & Block after a stint in the Solicitor General's Office, first as principal deputy solicitor general and then as acting solicitor general at the end of President Obama's term, also scored a victory for his client Jimcy McGirt in McGirt v. Oklahoma , a case concerning tribal treaty rights and the application of federal criminal law, which was decided 5-4 on the final day of the term.

Gershengorn had argued essentially the same issue in the 2018 term on behalf of Patrick Murphy in Sharp v. Murphy , which the court also decided in Murphy's favor in one of the final opinions of the term, in a per curiam citing the reasoning stated in McGirt.

Hogan Lovells' Mitchell P. Reich notched a win in Rodriguez v. Federal Deposit Insurance Corp.  when the court in May nixed an award of a $4.1 million tax refund to the FDIC as receiver for a defunct bank, instead of to the bankruptcy estate of the corporate parent.

Goldstein & Russell's Thomas C. Goldstein scored a victory in March when the high court found three Citgo units financially responsible for a $133 million oil spill in Delaware, and the firm's Eric F. Citron notched another in April on behalf of group called Public.Resource.Org Inc. when the justices ruled Georgia's official state law code could not be locked up under copyright law.

WilmerHale's Danielle Spinelli argued on behalf of Lee Boyd Malvo in the so-called "D.C. Sniper," case, urging the justices to find the life without parole sentence handed to him as a juvenile was unconstitutional. While the justices did not ultimately decide that case, Spinelli's client achieved a victory of a different kind. The parties requested after oral argument that the case be dismissed in light of new legislation passed in Virginia that allows for the possibility of parole for juveniles serving sentences of 20 years or more.

With so many law firms investing heavily in their Supreme Court practices, those who wish to bring a case before the country's highest court have no shortage of choices when it comes to highly experienced practitioners and dedicated practices.

And for many cases, a sure hand at oral argument can make all the difference. While many justices say they come into oral arguments with a strong sense of their own views of the case after reading the briefs, the arguments themselves can provide a turning point, and a lawyer can potentially move a justice from one side to the other.

"I think the most successful lawyers at the court understand that it's not their show, it's the justice's show," Justice Elena Kagan told Harvard law students in August. "That's true just as a factual matter. But it's true because it's the judges who are making the decision, and they're going to make the decision based on the questions they have."

--Editing by Pamela Wilkinson and John Campbell.

Methodology: A law firm's Supreme Court win-loss record is based on the outcome of cases where a member of the firm argued before the court.

The scorecard includes all law firms with three or more attorney appearances at oral arguments over the course of the 2019 term, regardless of the outcome. Some cases were not scored.

As a general matter, if the Supreme Court affirms the lower court, the petitioners lose. If the Supreme court reverses or vacates the lower court ruling, in whole or in part, the petitioners win. Cases that are dismissed as improvidently granted after oral argument are recorded as a win for the respondent.

There are, of course, exceptions. In cases where there is not a straightforward ruling, Law360 sometimes had to weigh a range of factors, including how much of the parties' arguments the court adopted and the likely impact of the ruling, when selecting the winning side. In some extremely rare circumstances, both sides might record a loss or a win.

Law360 did not score New York State Rifle & Pistol Association Inc. v. City of New York , New York, since the justices dismissed the case as moot. Retirement Plans Committee of IBM v. Jander was also not scored after the justices remanded the case due to inadequate development of the record.

Mathena v. Malvo was also not scored, since the parties requested after oral argument that the case be dismissed in light of new legislation passed in Virginia that allows for the possibility of parole for juveniles serving sentences of 20 years or more.

Sharp v. Murphy , a case argued in the 2018 term that had been held over and was decided per curiam in the 2019 for the reasons stated in McGirt v. Oklahoma , was also not scored.

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