Critical Issues In Selecting An Appellate Practitioner

Thursday, May 1, 2008 - 01:00

Editor: Carter, tell our readers about Sidley Austin?

Phillips: The firm has approximately 1,850 lawyers located in 16 cities. Our lawyers are involved in a broad spectrum of litigation and transactional practices. We take great pride in the fact that, if a client asks whether we can do "X," it invariably turns out that whatever "X" is, Sidley does it and has as much or more experience in that field than anyone. We have been around since 1866, and we started as a Chicago firm. At this stage, with significant numbers of lawyers throughout the United States, Europe and Asia, we most certainly think of ourselves as a global law firm.

Editor: Please describe Sidley's appellate practice, including its frequent involvement in cases before the U.S. Supreme Court.

Phillips: Our appellate practice began in the mid-1980s. It was largely the brain child of our late partner Rex E. Lee, who had served as U.S. Solicitor General. We started with a basic U.S. Supreme Court practice and then worked on expanding it to cover a wide range of other kinds of appellate and, as we call them around here, law-intensive practices. We now have about 25 partners who regularly practice in the appellate area, and are spread throughout most of our major domestic offices. We practice in both federal and state appellate courts, but in some states we have a much more extensive practice than others. For example, the Los Angeles office has a huge state appellate court practice largely driven by the fact that interlocutory appeals are allowed in California.

This term we are involved in about 40 percent of the U.S. Supreme Court cases on the merits. In the last year, five of our partners have argued in the Supreme Court, including Joe Guerra, Virginia Seitz, Jay Jorgensen, Jeff Green and myself. So, over time, the practice has grown to cover virtually any subject that the Supreme Court might address. We have been involved in a significant number of criminal cases, but our most substantial involvement is in the business side of the docket, which in the last few years has increased dramatically. The growth in our appellate practice has been weighted toward the federal court of appeals because that's where the bulk of the cases are and because general counsel have become much more convinced that it makes sense to use appellate practitioners rather than leaving appeals to trial lawyers as a case proceeds.

Editor: Sidley's appellate practice has been recognized by a number of sources, including the National Law Journal and the U.S. Chamber of Commerce.

Phillips: That's true, but the real test, I feel, is that we represent Fortune 50 or Fortune 100 clients in their most important cases. On that front, we have had pretty remarkable success. I believe that the recognition we have received is based on the breadth of our appellate practice and the consistently large numbers of cases in which we have been involved and the visibility of those decisions.

Guerra: Carter mentioned that business clients reach out to us to handle complex matters. They look to us to handle such cases not only in the U.S. Supreme Court and in the courts of appeals, but also in district court litigation where complicated legal issues are involved. Clients come to us for such projects because they value the appellate perspective we can provide on a variety of issues that can crop up in district court cases, like jurisdictional and statutory interpretation issues, or administrative law questions. Appellate practitioners understand how appellate courts tend to view these issues, and this can be enormously important - not only when you are in front of an appellate court, but also in a district court when you are explaining to a trial judge how he or she ought to think about an issue. We have a lot of expertise to bring to bear on those kinds of questions and we have had a long record of working collaboratively with trial counsel in ways that are productive and harmonious.

Editor: In 2007, Carter received the Lewis F. Powell Award for Business Advocacy from the National Chamber Litigation Center (NCLC) for best exemplifying a commitment to improving the litigation environment for the business community. Please describe some of the cases that have significantly improved the business environment.

Phillips: The most recent have been in the securities law area. We handled the Tellabs case, which set the pleading requirements for standard securities act violations. We also did an amicus brief for the U.S. Chamber of Commerce in the Stoneridge case, which deals with derivative liability. I think if you look at the securities law cases in the last five years, we have either represented a party or the Chamber as amicus in all of them. These cases have reduced the amount of securities litigation, both private litigation and those arising out of SEC enforcement actions - and this is consistent with what Congress generally intended in its amendments to the securities laws in the mid-1990s and the early 2000s.

We have been active for close to 20 years in the punitive damages field. I argued the TXO case, which involved the due process standards to be applied to punitive damage awards. I believe that, working with the Chamber and other business organizations, our efforts have had a very positive effect over time. That can be seen in the standards that the U.S. Supreme Court has adopted in deciding whether or not a punitive damage award is excessive. We look forward to being involved in future cases that will set precedents to further clarify that standard.

Guerra: We have also litigated a number of important preemption questions in a variety of settings. Peter and I handled cases involving a species of preemption known as the "filed tariff doctrine," which was important to our telecommunications clients. We're also involved in the burgeoning area of global warming litigation. I handled a case for utility clients where we obtained dismissal of a suit brought by eight states to enjoin emissions from coal-fired electric plants, then defended that dismissal before the Second Circuit. We recently filed a brief for the Chamber in a Ninth Circuit case involving whether the U.S. auto industry can be sued under federal or state nuisance law for allegedly causing global warming. This area will undoubtedly be a continuing focus of litigation in the future.

Editor: Peter, what skill sets does the firm look for in selecting a member of its appellate practice group? After a distinguished career at the DOJ, including serving as acting attorney general, any firm in the country would be pleased to have you join them. Why did you choose to come back to the firm after leaving the Justice Department?

Keisler: We look for excellent writers, excellent oral advocates and people with very strong analytic skills who can think about problems in a creative and fresh way. We seek people who put the client's needs ahead of their egos.

Coming back was actually a very easy decision to make. I had had 13 wonderful years at Sidley. I believe that Sidley has the premier appellate practice among firms today. The lawyers include some of the most brilliant and creative practitioners anywhere in the profession, and the breadth and depth of the practice are extraordinary. We are a collaborative group. It's a wonderful experience to get people here together to brainstorm about a new case or discuss a complex appellate challenge that we might be facing and then to walk out of the room with ten new ideas.

Editor: What is the relationship of the appellate practice group to trial counsel?

Guerra: We most typically partner with trial counsel from another firm when we handle an appeal. We are brought in to help write the briefs and most often to argue the case, but our guiding principle in these situations is that we are there to help. We know that trial counsel know the record and often the subject matter better than we'll ever know them. However, we have the experience to complement their talents and skills, and we work collaboratively to figure out what issues to raise on appeal, how to position those issues and what arguments have the best chance for success. Bringing folks in with a fresh perspective at this stage can be enormously helpful. I litigated at the trial level earlier in my career. After being deeply involved in a case for three or four years, I know how hard it can sometimes be to separate out the two or three most critical issues for the appeal.

Keisler: There is no difference at all between how we relate to trial counsel from Sidley and how we relate to trial counsel from another firm. Ultimately, what the client cares about and what the lawyers involved are supposed to care about is presenting the best arguments to win the case. The last thing the client wants to see are competitive instincts coming to the fore when different firms are involved. When we are brought in to handle an appeal, it is not about us; it's about how to work with everybody involved to find and present the most successful arguments in the most effective way.

Editor: Within your appellate practice, it appears that a number of the members have expertise in handling particular types of matters; why is subject matter expertise sometimes desirable?

Keisler: Appellate judges want to understand the practical consequences of their decisions and an appellate practitioner who is thoroughly familiar with the subject matter can give them confidence that the legal rule they adopt will be an appropriate guide to lower courts and to private actors. Judges know that they may not revisit that same set of issues for quite a while and that in the meantime what they say is going to reverberate throughout the system. They want to understand how their decisions will play out in the real world. Having subject matter expertise helps the lawyer provide judges with that understanding.

Please email the interviewees at cphillips@sidley.com, jguerra@sidley.com and pkeisler@sidley.comwith questions about this interview.