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Gibson, Dunn & Crutcher’s appellate team is on a streak. With warhorse Theodore B. Olson in the lead, the appellate group has won eight of the 11 U.S. Supreme Court cases it has argued during the past three terms. Overall, the firm claimed victory in 75% of its high court cases. “Getting 11 cases to the Supreme Court � then winning eight of them � in a given stretch is an incredible success,” said Paul Watford, co-chair of the American Bar Association Section of Litigation’s appellate practice committee and partner in the appellate practice group at Munger, Tolles & Olson in Los Angeles. In 2007 and early 2008, Gibson Dunn had four Supreme Court victories and a solid collection of wins in other federal and state appellate courts. What’s behind the record? Firepower: Olson is a highly regarded Washington insider, whose 40-plus years in practice and solid conservative credentials have given him a deep understanding of the philosophies of the Supreme Court justices � two of whom he helped get appointed to the high court as a Bush administration confidant. Helping to shape the court and having a deep affinity for its appointees is one way to get insight into the minds of the justices. “We work hard to give the court our best analysis to find the way that at least five justices will agree with our approach to the case,” Olson said. “You can’t win every case, but we try to win as many as we can.” Another tactic is to look for as yet-unexplored or underdeveloped weaknesses in cases, particularly when seeking to overturn jury verdicts. “When we come to a case we try to take a fresh look at what’s happened,” said Theodore J. Boutrous Jr., who with Olson is one of four co-chairmen of the appellate group. The others are Miguel Estrada in Washington and Daniel Kolkey in San Francisco. “We try to say, ‘What else is there? What else might there be that would take this verdict down? What’s the Achilles’ heel of this verdict in addition to the things that might be most obvious?’” The lawyers take a long view of the law, he said, actively looking for ways to shape it in their clients’ favor � even if it takes years to do it. The practice maintains an open-door policy: Anyone in the firm can come over. That flexibility brings new ideas and energy to maintain the “never-say-die” attitude, said Boutrous, who from Gibson’s Los Angeles office also co-chairs the firm’s media and entertainment group. The firm’s nonhierarchical organization means that lawyers can follow their interests, crossing over into multiple practice areas at will. In the appellate and constitutional law group, eight partners and 15 to 20 associates are team regulars, but others throughout the firm continually come and go on cases, Boutrous said. “I think that has given us a huge advantage.” ‘A lot of fun’ Richard J. Doren, a Gibson Dunn partner in Los Angeles, brought his national class action defense experience to an appeal involving insurance policyholders and the floods that followed Hurricane Katrina. Doren convinced the 5th U.S. Circuit Court of Appeals to reverse a trial court ruling that insurance covered the flood caused by the breach of New Orleans’ levees. With more than 200,000 policyholders, the stakes were very high and the challenge intense. Still, “putting together a good argument � that’s a lot of fun professionally,” Doren said. Opposing counsel in the Katrina insurance case, John Ellison, a Reed Smith partner in Philadelphia, said the insurance coverage issues are still being litigated before the Louisiana Supreme Court. He praised Doren’s job, then added: “I am still surprised with the result.” Opposing counsel praise Gibson Dunn’s appellate performance as solid and highly professional. Yet those who have won cases against the firm discuss their victories with detectable notes of glee. Erwin Chemerinsky, a Duke Law School professor and appellate practitioner, said that in three punitive damages cases against Gibson Dunn, he’s won one and lost one; the third is still on appeal. “I think they did a superb job of litigating,” Chemerinsky said of Gibson Dunn’s reversal of a $3.5 million punitive damages award in the California Court of Appeal. The case involved a United Parcel Service Inc. whistleblower who won $20 million in punitive damages from a jury, but the trial judge reduced the award. The firm’s courtroom opponents emphasize that winning on appeal is not just a matter of who the lawyers are. “At the appellate level, good lawyering is important, but judges make a real effort to get beyond the lawyers and decide the case based on the facts and the law,” said Michael R. Levinson, litigation practice chairman at Seyfarth Shaw in Chicago, who lost a baseball bat patent case against Gibson Dunn at the U.S. Court of Appeals for the Federal Circuit. Olson has worked at the firm since 1965, with two notable intervals: Between 2001 and 2004 he was U.S. solicitor general, and from 1981 to 1984 he was a key presidential adviser in the Department of Justice’s Office of Legal Counsel. Olson ranks among lawyers with high court insider status. He represented George W. Bush in the two cases that settled the disputed 2000 presidential election. After helping Bush take office, he advised the president on his two Supreme Court nominees, fellow conservatives John G. Roberts Jr. and Samuel A. Alito Jr., both of whom Olson has known since the 1980s, when all three were Reagan administration legal advisers. “Those have been exciting places to put my foot in the stream,” Olson said. “These are really outstanding people. I’m glad I was able to participate in a very small way in their preparation in their confirmation hearings.” Insiders don’t necessarily get a pass, said Wendy Lascher, a 35-year appellate lawyer at Lascher & Lascher in Ventura, Calif., and a board member of the American Academy of Appellate Lawyers. As with any experienced practitioner, having Olson on a case means the court will pay attention, but it won’t “bend over backwards” for him, she said. Appellate lawyers win or lose based on the strength of their cases, said Steven L. Mayer, director of the litigation department in the home office of San Francisco-based Howard Rice Nemerovski Canady Falk & Rabkin. Mayer has been Gibson Dunn co-counsel and opposing counsel, and won and lost cases with the firm. Gibson Dunn “can’t pull rabbits out of their hats” any more than other appellate lawyers, Mayer said.

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