Kirkland is profiled regarding the Firm's perfect record at the U.S. Supreme Court in the 2020 term, with victories for Facebook, TransUnion, Alaska Native corporations, PennEast and the State of Georgia. Paul Clement is quoted regarding Kirkland’s appellate practice.
The work and preparation that goes into a typical U.S. Supreme Court argument is by all accounts intense. While every Supreme Court advocate has their own method, there are no shortcuts, and no guarantees.
Supreme Court oral arguments are always a high-stakes endeavor, and this term gave advocates a lot to balance, between the confirmation of a new justice to the court, an ongoing pandemic and an entire term of remote oral arguments.
Last term, the sudden move to all-remote oral arguments in the spring, precipitated by the pandemic, forced advocates and justices to shift away from longstanding in-person oral argument traditions and habits. That shift was not without hiccups.
But this term, in which oral arguments were held entirely remotely, the advocates and justices alike had built up some familiarity, and they had more time to relax into the rhythm of the remote format. And more often than not, oral arguments went off without a hitch, or at least without some of the awkward pauses, technical snafus, or strange noises heard last term.
Advocates got used to the justices asking questions in order of seniority, and receiving a set amount of time in which to pursue their questioning, rather than jumping in whenever the mood struck them. They became more accustomed to hearing from Justice Clarence Thomas, who rarely asks any questions during normal arguments, and were able to glean much about the court's newest justice, Amy Coney Barrett, and her questioning style.
"At the end of the day, I don't think it radically changed the way you prepare for the argument, because you still know you're going to get lots of hard questions," said Paul Clement, a partner at Kirkland & Ellis LLP, who argued four cases this term.
"To the extent it changed the way that I prepared for the arguments, it changed most substantially in the one or two cases where Justice Thomas had already staked out a distinct position in an earlier opinion. I knew that I was likely to be asked about that position in a way that would likely not have been the case in a more traditional format," he said.
Justice Stephen Breyer has remarked that the remote format had some positive impacts on oral argument. With only audio to rely on, everyone is forced to listen more closely.
But on the other hand, "it's less fun," Justice Breyer said in a virtual discussion with George Washington University Law School in September in honor of Constitution Day.
"I like it, very much, to listen to what my colleagues are saying, and then sometimes there's some back and forth among us. And that makes some progress," he said. "Like most things there are pluses and there are minuses. I like it, but I'm not sure I'd like to do it all the time."
While there were moments of levity and candor during this term's oral argument, remote advocacy at the Supreme Court is anything but normal. Even advocates with years of experience and expertise had to come up with new ways to tackle arguments and navigate a relatively untested format.
Those and other challenges notwithstanding, the eight law firms on this year's scorecard saw the most action this term, and all found many ways to make their case remotely 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's well-known appellate practice has a remarkable number of cases pending before the high court in any given term, and this term was no exception.
The firm's Clement, a former U.S. solicitor general and former law clerk to Justice Antonin Scalia, argued four of the firm's five cases, scoring victories in all four. Clement notched a win on behalf of Facebook in a battle over the reach of robocall rules, scored a victory on behalf of TransUnion in a wrangle over class action standing, helped secure a ruling that Alaska Native corporations can receive COVID-19 relief funding, and secured a ruling that removed a major roadblock for a billion-dollar pipeline project on behalf of PennEast Pipeline Co.
The court also sided with Georgia in its long-running fight with Florida over water supply, with Kirkland's Craig S. Primis arguing for Georgia and taking home a win in that case.
The appellate practice at Kirkland takes a team approach to these cases, Clement said, even in a year when working together was much more difficult due to pandemic-related shutdowns.
"Part of what we like to do in an appellate practice, at least at Kirkland, is to work collaboratively with colleagues. And it's a little harder to do when you're doing it over the phone or over Zoom. One of the things I was really happy about this term was overcoming some of those challenges and getting the benefit of all of that collaboration, even though we weren't physically together," he said.
O'Melveny & Myers LLP was also particularly busy before the high court this term. Special counsel Jeffrey Fisher, who has continued to work as co-director of Stanford Law School's Supreme Court Litigation Clinic since joining the firm in the spring of 2018, was again a repeat player this term, arguing four of the firm's five cases before the court. Fisher notched wins in a case that limited the reach of a computer crime law and curbed the ability of police to enter a fleeing misdemeanor suspect's home without a warrant.
Paul Weiss partner and veteran Supreme Court advocate Kannon Shanmugam also set a blistering pace this term, arguing four different cases at a rate of nearly one a month between November and March. Shanmugan scored wins in three, including a victory in a fight over what qualifies as a violent felony for sentencing purposes for firearms possession convictions under the Armed Career Criminal Act and a win in a procedural wrangle that is part of a climate change tort battle between energy giants and the city of Baltimore, and securing a redo for Goldman Sachs in a securities class action.
In the fourth case, Henry Schein Inc. v. Archer and White Sales Inc., where Paul Weiss represented the petitioner, the court dismissed the case as improvidently granted, deciding in the end to drop the petitioner's request to take a closer look at a Fifth Circuit decision refusing to send a dispute between two dental equipment distributors to arbitration due to a carveout in the underlying arbitration clause.
Williams & Connolly's appellate practice also argued a noteworthy four cases before the court this term, with Sarah Harris scoring a victory for Social Security applicants in their fight to revive benefits claims and securing a ruling that former railroad workers have the right to appeal in federal court if the Railroad Retirement Board refuses to reopen their benefits applications.
Hogan Lovells attorneys were heard as frequently at oral argument this term, tackling four cases. Hogan Lovells partner and former acting Solicitor General Neal Katyal argued three of them, scoring a win when the court sided with Nestle and Cargill in a case that posed novel questions about corporate liability for human rights abuses abroad, and a loss when the court ruled against the city of Philadelphia in an LGBTQ rights battle centering on the city's decision to cut ties with a Catholic foster care agency over its refusal to work with same-sex parents.
WilmerHale, Orrick Herrington & Sutcliffe LLP and Goldstein & Russell PC each argued three cases before the Supreme Court this term, scoring wins in cases featuring questions of bankruptcy law, Fourth Amendment interpretation and copyright issues.
Former WilmerHale partner Craig Goldblatt, who in April became the newest judge on the Delaware bankruptcy court, scored a victory on behalf of the city of Chicago in a wrangle with Chapter 13 debtors. Before leaving Orrick to join Georgetown University Law Center's Institute for Constitutional Advocacy and Protection, Kelsi Brown Corkran scored a win when a majority of the justices found that a police officer's shooting of a fleeing suspect in the back can still qualify as a "seizure" under the Fourth Amendment, even if the suspect is not captured. And longtime Supreme Court advocate Thomas Goldstein of Goldstein & Russell scored a resounding victory on behalf of Google in a multibillion-dollar copyright lawsuit brought by Oracle over smartphone software.
Goldstein also scored a win for investors pursuing securities class actions when the court ruled defendants should bear the burden of disproving the price impact of alleged misstatements.
At all these proven Supreme Court practices with highly experienced attorneys, advocates are constantly honing their technique, looking for new ways to catch a justice's attention and turn the court in their client's favor.
An experienced oral advocate can move a justice who might be on the fence, or encourage them to consider an argument in a different light.
And as Justice Breyer noted, oral arguments can help provide a way for justices to get some clarity on their position, and suss out other justices' approach to the question at hand and any problems they may have with a particular proposed solution.
"Oral arguments can help a justice make up his own mind, or her own mind," said Justice Breyer in a virtual lecture at Harvard Law School in April.
--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 reversed or vacated 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.