Wiley Rein & Fielding's Appellate Practice: A Correlation Between Experience And Success

Monday, November 1, 2004 - 01:00

Editor: Mr. McBride, would you give our readers something about your background and experience?

McBride: After graduating from Stanford Law School in 1987, I clerked for Judge Robert H. Bork on the U.S. Court of Appeals for the DC Circuit and then for Justice Sandra Day O'Connor on the United States Supreme Court. Following my clerkships, I spent a number of years at the U.S. Department of Justice. In 1992, I joined the U.S. Attorney's Office for the Eastern District of Virginia. I served as Chief of Appeals in that district for several years, which enabled me to brief and argue a large number of important government cases before the Fourth Circuit. I entered private practice in 1998 with the law firm of Cooper, Carvin & Rosenthal, LLP.

I joined Wiley Rein & Fielding in early 2001, where I am a member of the Management Committee of the firm and co-chair of the firm's appellate practice.

Editor: Please tell us about your practice.

McBride: Our communications practice group is comprised of 75 lawyers and 3 engineers. It is the largest communications practice in the country, with a regulatory team, a legislative team and a litigation team. The litigation group consists of approximately 16 attorneys, including four former Supreme Court clerks, and numerous former federal district court and appellate clerks, who specialize in extremely high-quality legal analysis, strategic litigation planning, and complex civil litigation in the state and federal courts. Much of our work lies in the area of defending business interests against improper state and federal regulation, as well as opposing the latest theories of liability dreamed up by our friends in the plaintiffs' bar. We represent a number of telecommunications companies, Internet service providers, broadcasters, advertising interests, and equipment manufacturers in the communications sector. Our practice involves the formulation and execution of legal strategies for clients in state and federal trial and appellate courts across the country. Often we are called upon to formulate and execute a legal strategy in multiple cases across the country on legal motion, with appellate practice to follow. We are, in essence, a legal strike force, that can be deployed anywhere in the country on short notice to seek preliminary relief, file defensive motions, or take over a matter on appeal that has gone awry in the court below.

Editor: Do you draw upon other disciplines and practice groups? What are the key relationships in this regard?

McBride: We draw upon the skills and talents of a number of other disciplines. At the moment, for instance, we are heavily engaged in wireless communications matters, which necessitates the expertise of lawyers who specialize in wireless issues. In this particular arena there is a real need for engineering expertise. We are fortunate to have several highly qualified engineers on staff, who know the network issues of our clients and regularly work with the attorneys in crafting legal arguments that fit our clients' technology and business interests. This gives us a power of presentation that few firms can duplicate. It is a practice where both our lawyers and our engineers never stop learning from each other .

Wiley Rein's appellate practice group acts as a resource for every other practice group within the firm. High-end appellate work in the federal circuits and the Supreme Court requires a particular kind of know-how and a familiarity with the precedents and trends throughout the federal courts. This is the only way to manage a large client's nationwide legal interests, ensuring maximum chance for success in the most favorable forum. There is an art to posturing an important legal issue for a client or industry group for eventual presentation to the higher federal courts, including formulation of legal theories, choice of forum, public relations, and coalition building for amicus support.

Editor: What are the skill sets that you look for in an appellate lawyer?

McBride: I think the most important skill is the ability to think analytically and arrive at two things necessary to win cases. The first is a coherent legal theory of the case - one that fits comfortably within established legal principles and judicial precedent and that your opponent cannot unwind. The second is a need to understand the emotional and policy underpinnings of the case that favor your client and to project them to a wider audience. This entails a complete understanding of your legal position, your client's business model and a conception of why your position represents sound public policy and something that a judge can be confident in adopting. A good appellate lawyer wraps fact, law, and public policy into a coherent package that appears in the final briefing and oral presentation to be the self-evident, optimal result.

Strong writing skills are critical. I would have to say that a great many young people just out of law school do not have the ability to craft effective advocacy prose in which every paragraph has a dedicated purpose and the entire message is woven together and conveyed in the proper sequence and with the proper tone. While this is obviously a skill that can be learned in practice itself, I believe that the law schools do not place enough emphasis on legal writing. There is no substitute for actually writing and answering briefs. That is why I am a strong believer in debate and moot court practice, both in the law schools and in continuing legal training of young lawyers.

Editor: Would you tell us about some of the recent U.S. Supreme Court and other significant appellate matters that the group has handled?

McBride: The case that has garnered the most press recently is RIAA v. Verizon because the issue of music sharing over the Internet has generated great public interest in recent years. This issue pits the recording companies against the Internet service providers. The federal district court in Washington DC issued a decisive ruling for the recording industry, holding that Internet companies must comply with thousands of statutory subpoenas demanding personal information of their subscribers. We were hired to handle the appellate proceedings in the DC Circuit, and we were able to obtain a reversal of the decision of the court below in a unanimous opinion written by Chief Judge Ginsburg. That was a radical turnaround, something characterized in the press as a surprise setback for the recording industry. The Supreme Court recently denied certiorari in that case.

Another noteworthy case in which we are involved is Brand X v. FCC. This case concerns the proper statutory classification of high-speed Internet access over cable modem and Digital Subscriber Line or DSL systems. The Ninth Circuit overturned an FCC ruling that classified high-speed Internet access as an "information service" subject to minimal regulation, rather than as a "telecommunication service," subject to price and access regulation. The United States and FCC have petitioned the Supreme Court for certiorari, and we support the United States in that case. I believe that the Supreme Court will grant review in this case and that it will establish a critical legal precedent for the proper regulation of new broadband Internet access services.

The case of Verizon Wireless v. The State of Minnesota is also significant. This matter concerns whether a state can enact legislation that regulates wireless rates. Congress has preempted rate regulation of wireless services because, in a highly competitive market, there is no need for rate regulation. Within days of the governor signing this legislation, we filed a complaint and a motion for preliminary relief on behalf of virtually every wireless carrier in Minnesota. We obtained a TRO and a partial preliminary injunction and the case is now on appeal in the Eighth Circuit. The Eighth Circuit recently granted our motion for a stay pending appeal, always a good sign for the merits of any appeal.

And just this summer we prevailed in a class action litigation brought against Verizon Hawaii. Joe Cochett, a very well known plaintiff's lawyer in San Francisco, brought a class action lawsuit in circuit court in Maui praying tens of millions of dollars against our client under the Hawaii unfair competition and deceptive trade practices laws. We were able to win a dismissal with prejudice of the entire complaint on motion for summary judgment. The case is now on appeal to the intermediate appellate court in Hawaii.

Editor: As you know, our publication is directed to an audience composed of general counsel and the members of corporate legal departments. Would you give us your thoughts about the relationship between general counsel and outside counsel in connection with the development of litigation strategy?

McBride: First and foremost, outside counsel must provide advice and effective representation in the particular case at hand. Just as important, outside counsel must provide broader strategic advice that projects the case and the legal principles at issue into the future and down a path that might reflect 10 or 15 moves forward on the chessboard. Outside counsel has a responsibility to work with corporate counsel to posture the case for maximum success. To a large extent, this means developing an understanding of the client's business needs and goals and taking on at least some of the responsibility that corporate counsel carries in attempting to meet them.

To be successful in this relationship, outside counsel must address concerns that are much larger than the demands of the immediate litigation. You become your client's eyes and ears in the legal world: is there a danger or an opportunity on the horizon that threatens or can advance your client's business model?

Editor: What do you think are the key factors that general counsel ought to have in mind in selecting outside litigation counsel?

McBride: The key factors in successful federal court litigation are experience in handling the fray of the courtroom - experience on your feet - and experience in brief writing. Lawyers who have spent time in litigation roles with the government tend to have a considerable amount of this type of experience. It is difficult to develop these skills in a law firm setting alone - although many good litigators do over time. In any event, real world experience is crucial, coupled with subject matter expertise and solid litigation judgment. These should be the central criteria in a general counsel's selection of outside counsel for a critical case or set of cases.

Strong writing skills, as I mentioned before, are also crucial. This includes both the ability to develop a written argument and to analyze your adversary's written arguments. The first task of a good litigation counsel is to sit down and read the initial pleading a number of times. This entails looking for the ambiguities, analyzing the factual and legal allegations, and finding the factual and legal gaps or unwarranted assumptions in your opponent's position. Experienced litigation counsel must completely "unpack" the initial pleading in the case, and then plot the appropriate strategic course of the litigation. Is this a motion to dismiss case? Should we answer and seek discovery? Are these facts we need to develop from the opponent? Above all, how does the case fit into the client's overall business and legal strategy?

One of the most rewarding aspects of my work revolves around my close professional and personal relationships with in-house counsel. Thinking as the client thinks, anticipating the client's legal problems, and always recognizing that the business goals are the ultimate goals and that the legal proceedings are but one tool in the overall conduct of the business, are the keys to a productive and longlasting relationship with your inside counterparts.

Please email the interviewee at amcbride@wrf.com with questions about this interview.