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Jones Day is hitching its appellate pro bono wagon to the powerful engine of New York University School of Law this fall. For years the firm has had a very active pro bono litigation practice, including extensive appellate representation of criminal defendants, prisoners, asylum petitioners, and others seeking to avoid deportation. It also has a strong Supreme Court practice. Seven firm lawyers — including two associates — have argued 12 cases there over the past three years, and several of those cases came to us as pro bono cases handled in the federal courts of appeals. Beginning in early September, we will join forces with NYU School of Law to establish a new clinical offering: the NYU Supreme Court Litigation Clinic. The clinic will enlist the aid of 10 NYU law students in the firm’s efforts to press the claims of pro bono clients in the highest court in the land. The students will enjoy a hands-on introduction to Supreme Court practice, working under the close supervision of the three of us, who are teaching the class. Clinic students will not only work on cases they have identified but will also be involved in pro bono cases handled by Jones Day lawyers in the appellate courts that merit being pursued to the Supreme Court. A handful of top law schools, beginning with Stanford in 2004, have recently created such clinics, all with the goal of involving students in representing parties in real cases before the Supreme Court. Although the NYU-Jones Day clinic is thus not the first in the field, our clinic will be notable in certain important respects. One is the level of the firm’s commitment to the project and the opportunity the students will have to learn from a number of experienced lawyers throughout the course of the program. The three of us will be present each week for the two-hour regular class session, and we will take the lead in presenting lectures and leading class discussion of assigned readings on various aspects of Supreme Court practice. We will also take personal responsibility for supervising the drafting of briefs and petitions by teams of students, which will involve intensive editorial revision and substantial daily discussion as the process goes forward. In addition to those of us who will work with the students on a day-to-day basis, other Jones Day lawyers will work with the students from time to time, in a variety of ways. Some of these lawyers will work with us and the class on cases on which they have previously worked at the federal appellate level as we prepare papers to be filed in the Supreme Court. Other firm lawyers will come into the class as guest lecturers and discussion leaders, whether to discuss Supreme Court experiences they have had or issues about which they have special knowledge. The clinic also plans to make substantial use of NYU law school faculty experts working in the subject areas that are the clinic’s primary focus. As possible consultants both with regard to the merits and in deciding on the most effective approach to take in particular cases, the NYU faculty is a particularly rich resource upon which the clinic expects to draw regularly. Among the many pro bono appellate cases handled by Jones Day lawyers, three recent cases found their way to the Supreme Court, where they were briefed and argued by firm lawyers. During the 2005 term, for example, two of us (Ayer and Feder) handled the case of Woodford v. Ngo, which concerned the precise meaning of the exhaustion requirement under the Prison Litigation Reform Act. During the prior term, Jones Day represented the respondent in Wilkinson v. Dotson, which addressed whether a prisoner may seek a new parole hearing due to procedural shortcomings in a previous hearing in which parole was denied. That case followed a year after Doe v. Chao, in which we represented a claimant under the Privacy Act, arguing that the statute’s minimum damage award of $1,000 is available to prevailing plaintiffs whether or not they prove actual injuries suffered. Among the clinic’s earliest projects this year will be petitions for certiorari in cases previously handled by Jones Day lawyers at the appellate level on behalf of pro bono clients. We are currently reviewing the status of a number of such matters with firm lawyers and have already identified several possible candidates. In addition to pursuing petitions for certiorari and litigating cases on behalf of parties, the clinic will also prepare amicus curiae briefs in Supreme Court cases. These briefs will typically be filed by the clinic acting as counsel for other individuals or organizations with particular interests, experience, or expertise regarding law or policy questions central to the cases. THE STUDENTS’ ROLE Unlike many intermediate appellate courts, the Supreme Court does not have a rule allowing student argument. But in addition to involvement in every other aspect of practice before the high court — including drafting petitions for and oppositions to certiorari, drafting merits briefs when working on cases that have been granted review, and drafting amicus briefs in cases where other lawyers are representing the parties — the clinic will also focus on oral presentation and argument. Much of the work of formulating legal strategies and theories will be done by extended discussions among the students and lawyers handling the case. We will also hold moot courts in the cases in which we and other lawyers are involved and afford the students the opportunity to present mock arguments before experienced judges. This partnership between a major national law school and an international law firm will clearly benefit students, pro bono clients, and pro bono practitioners. We hope a fourth winner will be the Court itself, which will get to hear arguments on behalf of the least privileged of litigants from counsel who are experienced in litigating before the Court, and supported by some of the finest law students in the country.
Donald Ayer is a partner in Jones Day’s Washington, D.C., office. He clerked for then-Chief Justice William Rehnquist and chairs the firmwide pro bono program as well as the government regulation practice. Samuel Estreicher is the Dwight D. Opperman professor of law and co-director of the Opperman Institute of Judicial Administration at New York University School of Law. He is also of counsel to Jones Day in New York, and he clerked for then-Justice Lewis Powell Jr. Meir Feder heads Jones Day’s New York office issues and appeals practice and is a former clerk for Justice David Souter.

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