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It is billed as the most important patent case of the decade, and the companies on each side, eBay Inc. and MercExchange, a one-time online auction site, have fought tooth and nail. Both hired top counsel to fight the case, but when they needed to move to the Supreme Court, eBay wasn’t taking any chances. The question, how easy it should be for a patent holder to win an injunction against an infringer, was too important. Too important, apparently, to leave only to Jeffrey Randall, a veteran litigator now with megafirm Skadden, Arps, Slate, Meagher & Flom. Instead the online auction giant reached for a familiar high court advocate, Carter Phillips of Sidley Austin, whose argument before the Supreme Court on March 29 on behalf of eBay will be his 49th. At MercExchange, Phillips’ hire had a ripple effect. The company shoved aside Hunton & Williams for its Court argument, hiring Seth Waxman, the former Clinton administration solicitor general. MercExchange’s lawyers got it. “When you get to the Supreme Court it’s a very small club, and you want people who are polished practitioners,” says Scott Robertson, Hunton’s lead partner on the case. It’s standard operating procedure for clients in high-stakes corporate cases before the Court — snagging a member of that exclusive entity known as the high court bar. The increasing savvy of clients like eBay and MercExchange has helped foster an elite cadre of practitioners who have effectively cornered the market and, in a sense, serve as sort of unofficial gatekeepers to the Court. But now, more firms are trying to buy their way into the club. With its relatively minimal docket, the Supreme Court wouldn’t necessarily come to mind as a growth market. But it is becoming one. Clients are vying for top practitioners, law firms are courting appellate specialists, and, more and more, firms are bulking up in the Supreme Court and appellate arena. A few recent examples: In 2003, Baker Botts wooed former Court clerk and solicitor general alum Jeffrey Lamken to jump-start the Texas firm’s appellate group. Last year, Winston & Strawn brought on two partners in established practices to round out its litigation capabilities. And earlier this month, Akin Gump Strauss Hauer & Feld hired well-known blogger Thomas Goldstein to boost its work in Court advocacy. The increasingly competitive Supreme Court market stems, in large part, from clients who are placing a higher premium on star players than in the past. Supreme Court lawyers say the unique jurisdiction, the demanding sophistication of the high court, and, of course, the opportunity to leave a lasting impact on the law make hiring a specialist key to winning at the highest level. “Increasingly, businesses in particular recognize that they have a huge stake in Supreme Court cases,” says Lawrence Baum, a political science professor at Ohio State University who has written a book about the Court. “And they recognize that they are better off with experts, and I think the private firms have responded to that.” But the payoff isn’t a direct one. The Court only takes about 75 to 80 cases a year, which is half of what it handled two decades ago. Even the biggest players must tend to lower court matters. Though the immediate financial gain may be limited — appellate work, with minimal leverage and limited hours, is never a major profit center — firms say these practices pay off in other, less tangible ways: by raising the firm’s profile; by luring top law school graduates, former law clerks, and talented lawyers; and by drawing other litigation that will ultimately feed the bottom line. SPECIAL DELIVERY Firms began forming discrete Supreme Court practices about 25 years ago. Among the first to make the move was Mayer, Brown, Rowe & Maw, which began plucking attorneys from the solicitor general’s office in the early 1980s, including Robert Stern, a one-time acting solicitor general, and Stephen Shapiro, a former deputy solicitor general. Such luminaries came with a ready-made reputation, and clients soon followed. “In those days there was still a perception among law firms and lawyers that if you’re a litigator, you do everything,” says Evan Tager, an appellate partner at Mayer, Brown. The firm’s gamble worked. Its lawyers defended a key punitive damages case in the Supreme Court in 1989 for the waste-management company then known as Browning-Ferris Industries. Although the firm lost the case, businesses facing similar litigation began turning to its attorneys. Others firms followed Mayer, Brown’s example, and similar groups formed at firms including Jenner & Block, Jones Day, and Sidley Austin. But now that old guard is facing new competition. A wave of departures from the solicitor general’s office has helped fuel the change. “There are a lot of SG alums out there trying to make a buck in private practice,” says Alan Morrison, a professor at Stanford Law School and a frequent advocate before the Court when he headed the Public Citizen Litigation Group, until 2003. Among the former officials now in private practice: Latham & Watkins’ Maureen Mahoney, a former deputy solicitor general; Morrison & Foerster’s Drew Days and Beth Brinkmann, a former solicitor general and an assistant, respectively; Sutherland Asbill & Brennan’s Kent Jones, a former assistant; O’Melveny & Myers’ Walter Dellinger, a former acting solicitor general; Kellogg Huber’s David Frederick, a former assistant; and Farr & Taranto’s Richard Taranto, a former assistant. Two other alums from the solicitor general’s office, John Roberts Jr. and Samuel Alito Jr., have landed in even higher-profile slots, only adding to the luster of the office. Some of the established practices have also lost key players, who have sought to carve out a name for themselves, rather than live in the shadow of the big-name practitioners. In 2000, for instance, five former Mayer Brown partners spun off their own boutique, Robbins Russell, devoted mainly to the high court. Then there are the newcomers. Winston & Strawn has long been known for its litigation. It is national counsel to Philip Morris and represented the New York Stock Exchange in its compensation dispute with former Chairman Richard Grasso. Though the firm had taken a number of key cases to the appellate level, Winston’s appellate expertise, particularly in the Supreme Court, was thin. So the firm’s leadership scouted out specialists, and in the past two years wooed Gene Schaerr, one of the founding attorneys of Sidley’s Supreme Court group, as well as Mayer Brown partner Linda Coberly. Both are former Supreme Court clerks. “Increasingly, the Court seems to be taking more business cases, and business clients are acutely interested in that area,” says Kimbell Anderson, Winston’s general counsel. “Even if we may not be counseling every one of those cases, we certainly want to be respected in the business community.” Like many firms that have moved into the Supreme Court arena, Winston doesn’t focus solely on the high court. But the reputation of its Supreme Court experts has helped the firm land other appellate work for clients such as Marsh & McLennan, the government of Puerto Rico, and dairy manufacturer Westfailia-Surge. Schaerr has argued two cases before the Supreme Court since joining, but, he says, those cases haven’t been big moneymakers. “There is certainly some discounting,” he says. If breaking in can be tough for a partner from an established firm, it is even more so for those on their own. Thomas Goldstein was something of an anomaly when, as a 29-year-old attorney, he formed his own firm and began cold-calling lawyers to help them take their cases through the Supreme Court. By sifting through opinions for circuit splits, he was able to build a multimillion-dollar practice. Large firms have approached him over the years, but Goldstein decided to abandon his tiny firm for Akin Gump because it appeared committed to investing in the practice. The draws: “a broader platform, access to more clients . . . and to put together a bigger team who can do Supreme Court work,” he says. Other newcomers found their own creative ways to get before the Court. Jeff Fisher clerked on the Supreme Court, and after heading into private practice at Davis Wright Tremaine in Seattle, he looked for ways to get himself in front of the high court again. His approach was pro bono work. In 2004 he got lucky when two of his cert petitions were accepted at the Court. He argued and won both, a notable achievement since he was representing criminal defendants in both cases. Now he’s set on expanding his appellate work. “There is just a particular opportunity and need in West Coast-based firms because so many of the appellate practices are in D.C., yet so many cases come out of the West Coast,” he says. MAKING THE MARKET The rising interest has, however, led to more fierce competition inside the marketplace. Lawyers who once shied away from actively seeking out cases, the way Goldstein does, are modeling his entrepreneurship. The state of Montana’s cert petition in United States v. Timothy Omer had not yet been filed when Michael Sherwood received a call from a big-firm attorney (he won’t disclose which one) hoping to take over the case. Sherwood, a Missoula, Mont., solo practitioner, is representing Omer, the defendant in the bank fraud case being appealed. Three more calls followed. “They were saying, �Look, you should hand the case over to our firm.’ I just think there are people who would prefer to see their names on Supreme Court briefs,” he says. Instead he has opted for pro bono help from Goldstein and the National Association of Criminal Defense Lawyers. “Would I be the first to admit that there are [lawyers] probably better qualified to argue? Generally, yes,” he says. “Certainly, no one knows the factual and legal background in the case better than I, and my client is comfortable with that.” Although newcomers may discount cases, more established firms say they have not felt pressure to lower their fees. Firms can still charge anywhere from $30,000 to $100,000 for cert petitions and a few hundred thousand to take a case through arguments. But, says Michael Carvin, a partner in Jones Day’s appellate practice, competition is squeezing everyone. “There is no question: You have more monkeys chasing fewer footballs.” Whether this movement will spread is less certain. New York firms, for one, have held off establishing full-blown practices. Barry Ostrager, chair of litigation at New York-based Simpson Thacher & Bartlett, believes his firm has enough talent to handle any kind of litigation, whether in trial court or at the highest level. Simpson Thacher has argued three cases before the Court in the past decade — all ones that it handled from the start for clients. “We certainly don’t think we lose any business,” Ostrager says. Moreover, the economics of emphasizing Supreme Court work isn’t much of a motivation in New York, where firms draw their biggest sums from corporate transactions. And, Ostrager adds, “We don’t need some prima donna Supreme Court practitioner waiting for the Supreme Court to ring.”
Emma Schwartz can be contacted at [email protected]. Tony Mauro can be contacted at [email protected].

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