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Few things can cap a lawyer’s career like arguing a case before the U.S. Supreme Court. Unfortunately, that’s an opportunity most general counsel will never get. But some have had the privilege: At least three GCs have appeared before the highest court in the land. The most recent was Paul Cappuccio, Time Warner Inc.’s legal chief. In March, he represented his company and his industry when he argued for the National Cable and Telecommunications Association in a case against Internet service providers (ISPs). Cappuccio won in June, when the court ruled that cable operators like Time Warner don’t have to make their broadband lines available to ISPs. Before Cappuccio, former U.S. Attorney General William P. Barr-the top lawyer first at GTE Corp. and now at Verizon Communications Inc.-argued two cases before the Supreme Court while wearing his GC hat. And in 1991 Michael Beatty, then the general counsel at Coastal Corp., a Houston-based oil company, appeared before the justices. Part of it is luck According to these three men-as well as Carter Phillips, one of the deans of the Supreme Court bar-they’re the only GCs who have ever argued a case before the justices. They got there partly through luck: Their company or industry had a case before the court. But with Barr and Cappuccio, their background as Supreme Court clerks and top government lawyers-Cappuccio was in the Justice Department under Barr-also helped them win their starring roles. They predict that other GCs with similar backgrounds might also have a chance to argue before the justices some day. “Getting up in front of that court is like a drug,” Cappuccio said. Beatty said he “cherishes” his moment at the Supreme Court, since it was vindication for the stigma he felt as an in-house lawyer. But these men caution that given the demands of a high court case, other GCs should follow suit only when they’re particularly qualified and the case is really important to their company. Any lawyer who dreams of appearing before the Supreme Court must first contend with the justices’ shrinking docket, said Phillips, a partner at Sidley Austin Brown & Wood. Phillips said that the justices currently hear about 75 cases per term, which is roughly half of what they heard 20 years ago. The general counsel who dreams of being a Supreme Court advocate faces more than bad odds. “Most [GCs] aren’t litigators,” Phillips said, “and those who are-they’re too busy.” Even if they made time, he adds, “they could be committing the fundamental mistake of getting out of their element pretty quickly.” Finally, Phillips notes that a client with a case before the high court usually looks for an experienced advocate. Many of the best clerked for a Supreme Court justice and worked for the U.S. solicitor general. Neither qualification is essential, Phillips said, but they help. Cappuccio had the right stuff, having clerked for two justices in the late 1980s: Antonin Scalia and Anthony Kennedy. He went on to a stint at the Department of Justice (where he became friends with Barr, then the attorney general). After leaving government, Cappuccio went to Kirkland & Ellis of Chicago, where he took on his first two Supreme Court cases. He lost for General Motors Corp. in 1998, but won for Hughes Aircraft Co. the following year. In 1999, Cappuccio landed his first GC job at America Online Inc., moving to the top legal spot at Time Warner two years later, after the companies merged. Cappuccio acknowledged that his personal history at the Supreme Court helped him feel more comfortable in his most recent appearance, particularly when he was quizzed by Scalia. Their back-and-forth, Cappuccio said, was just like the old days when he was a clerk arguing in the judge’s chambers. Though Cappuccio didn’t convince Scalia (who wrote the dissent in the case), he did persuade the six justices who handed him victory. Like Cappuccio, Barr also argued a case before the Supreme Court in his pre-GC days. Barr, then the attorney general, represented the government in a 1992 case involving standards for habeas corpus review. After he left the Justice Department, he first became general counsel at GTE and then at Verizon, the product of a 2000 merger between GTE and Bell Atlantic Corp. While at GTE, Barr was picked to represent the telecom industry in AT&T v. Iowa Utilities Board. Barr said that the GCs of the various petitioner companies picked him not just because of his past experience, but also to avoid a turf battle. Had the telecoms decided to go with an outside lawyer, each company would have pushed for its favorite, Barr explained. While he won that case, he lost in his third appearance before the Supreme Court, when he represented Verizon in a challenge to Federal Communications Commission rules. Beatty, now in private practice at Denver’s Beatty & Wozniak, didn’t have the Supreme Court experience of Barr or Cappuccio when he argued before the justices. But he said that ever since he won a moot court competition as a student at Harvard Law School, he had dreamed of doing the real thing at the country’s top court. In 1991, he got his chance while GC at Coastal. The case involved a sanction of about $20,000. It was important for his company, Beatty said, “but you’re not going to be able to spend $1 million to argue this case.” Beatty was already trying big cases and arguing appeals for Coastal, so he picked himself for the Supreme Court appearance. It was a smart choice: He won his case unanimously.

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