Thank you for sharing!

Your article was successfully shared with the contacts you provided.
June 26 began auspiciously for Carter Phillips, with word of a victory in a case that he had argued before the U.S. Supreme Court — his third win of the term. And then the day got better. After sharing the good news with his oil industry clients in the high-stakes government contracting case Mobil Oil Exploration v. U.S., Phillips and some colleagues at Sidley & Austin’s Washington, D.C., office went for a celebratory lunch. When he returned, a voicemail message from Thomas Burt, deputy general counsel of Microsoft Corp., awaited him. At first Phillips thought it would be bad news; if he’d won the beauty contest that Microsoft held in its search for a lawyer to shepherd its antitrust case through the Supreme Court, he didn’t expect to be informed by voicemail. But it turned out the news was good. Burt apologized for being so impersonal, but he was heading into a meeting, and he wanted Phillips to know: Microsoft wanted Phillips on its legal team. “I was in a pretty exuberant mood. That’s about as good as it gets,” recalls Phillips, managing director of Sidley’s D.C. office. All in a day’s work for Phillips, 48. With steady determination and an unflappable manner, he has become the go-to guy for large corporations looking for help from the Supreme Court. Phillips argued 12 cases in the last five terms, far more than any other lawyer in private practice, according to the American Lawyer survey. Last term alone, he argued three cases within a month — and won all of them. Few were surprised that Microsoft chose Phillips after interviewing two other Supreme Court veterans (no one will say which ones). But Phillips isn’t ever picked because he is a tiger in the courtroom. He has a matter-of-fact manner and a retiring demeanor that might make it hard to pick out this titan of Supreme Court advocacy in a crowd of two. By all accounts, though, that suits the Supreme Court just fine. His arguments have a “not to worry,” calming quality — more soothing than substantive, say some rivals. But if a case required him to ask the justices to walk off a cliff, Phillips, without being misleading, could convince a majority of justices that it was a curb instead. Not a big deal, he’d tell them. “Carter might be able to give a dramatic, gripping summation to a jury,” says Charles Cooper, an admiring rival. “But” — Cooper pauses for effect — “I’d be very surprised.” Phillips’ modest manner appeals to clients as well. He sells himself as the quintessential team player, not ego-inflated enough to insist that he argue all the cases himself. That was important in the Microsoft case, since New York’s Sullivan & Cromwell is still the company’s lead firm before the Supreme Court. If the Court accepts the case, Phillips might argue Microsoft’s side, and he might not. “Carter’s excellent reputation for being able to work as part of a team was one of the things that impressed me as the right fit for us,” says Microsoft deputy general counsel Thomas Burt. Phillips’ reputation as a team player, oddly enough, was once tested in court. A Massachusetts lawyer who was about to argue his first case before the Supreme Court claimed that another party, aided by Phillips, muscled him aside and persuaded his clients to let Phillips argue instead. Robert Gallagher of Haydensville, Mass., once a lawyer for the now-defunct Interstate Commerce Commission, had argued the transportation rate case of Reiter v. Cooper through the lower courts. But after the Supreme Court agreed to hear it, General Electric Co., which had $150 million at stake in the outcome, approached Gallagher’s clients, two small transportation brokerage firms, with an unbeatable offer: Turn the case over to Phillips to argue, and the clients would be indemnified for any losses coming out of the case. The clients agreed, Phillips argued the case in December 1992, and he won — saving shippers nationwide untold millions of dollars ever since. But Gallagher sued Phillips and GE’s counsel, and the complaint went to trial on a business tort claim of “intentional interference with advantageous relations.” Gallagher asserted that the client grab harmed his reputation and deprived him of the future clients that a Supreme Court appearance might have won for him. During the seven-day trial, Phillips and others testified about the value of hiring Supreme Court specialists, portraying what happened to Gallagher as not that unusual. The jury found that GE — not Phillips — had interfered with Gallagher’s client relationships, but that GE’s action was legal. At the time Gallagher ruefully called the verdict a victory for “inside-the-Beltway arrogance.” But now, reached at his Massachusetts office, Gallagher sounds less bitter. He faults GE for the hardball tactics, not Phillips — although he describes Phillips as “an enabler” whose presence helped make the switch happen: “I don’t consider him the primary person who did it, but there was a rather callous disregard for legal civilities.” Told that many practitioners now view Phillips as a courteous team player, Gallagher says, “I think he learned from the experience.” Phillips laughs at the suggestion and says, “That may be true.” He adds, “The fact of the matter is that I never aspired to make that argument.” But when GE decided to make the offer to Gallagher’s clients and urge them to switch to Phillips, he says, “I wasn’t going to tell my client not to pursue what they felt was in their best interests.” In the coming Microsoft case, whether Phillips argues the case or not, the company will have benefited from his keen talent for narrowing issues and devising strategies that will be palatable to the nine in black robes. “He cuts through the most complicated issues and knows the case law inside out,” says Stephen Smith, a University of Virginia law professor and former Supreme Court clerk who worked until recently with Phillips. “He sees ways of making arguments to the court that no one else does.” That more than makes up for what Phillips acknowledges is his lack of special expertise on antitrust matters — although he notes that while at the Justice Department in the early 1980s, he wrote a memo on the Expediting Act of 1903, the obscure law under which the Microsoft case is being fast-tracked on appeal. “I’m not the leading expert on any given subject,” says Phillips. “What I do have is a reasonably similar perspective on a case to what the justices do. The justices aren’t expert either.” Phillips gained that perspective in part by clerking for former chief justice Warren Burger 20 years ago. He had graduated with honors from Northwestern University School of Law and spent a year as an appeals court clerk before working for Burger. Phillips recalls playing basketball with now-retired justice Byron White and enjoying it, “even though he cheated.” The Canton, Ohio, native then headed into academia with his wife, the pair teaching at the University of Illinois College of Law for a couple of years. “I could have stayed indefinitely,” he recalls with fondness. But an invitation from deputy solicitor general Lawrence Wallace to consider working in the SG’s office lured him back to Washington in 1981 and changed his life. He developed a strong working relationship with solicitor general Rex Lee. When Sidley & Austin hired Phillips as an associate in 1984, Phillips soon brought Lee with him — launching one of the earliest specialized Supreme Court practices. Lee was a magnet for top-drawer clients seeking help before the justices. One of Lee’s cases also turned into a learning experience for Phillips. In 1995 Lee agreed to help the state of Colorado defend in the Supreme Court its constitutional amendment barring special protections for homosexuals. As a result, gay law student organizations threatened to boycott Sidley & Austin’s recruiting efforts that fall. At the time, Phillips defended the representation ,but now, he says, “I’m a whole lot more sensitive to the issue than I was then. There was a substantial reaction within the firm, and I came to realize how important this was to the gay and lesbian community.” Lee lost the case. Phillips speaks with reverence for Lee, who left the firm’s full-time practice in 1989 to become president of Brigham Young University (and who died in 1996). “I don’t think I’m nearly as good a lawyer as he was,” Phillips says. Modesty aside, Phillips has inherited Lee’s knack for generating steady Supreme Court-bound business. He has argued 22 Supreme Court cases since joining Sidley, just last term surpassing Lee’s 21 private-practice arguments. “He serves as an important filter through which we pass all the cases in which there is a potential Supreme Court petition,” says Wiley Mitchell, Jr., senior general counsel for Norfolk Southern Corp. “If he says we don’t have a prayer that the Supreme Court will accept a case, we take his advice and don’t file. He saves us a lot of money.” By the same token, Mitchell adds, “Hopefully, when the Court sees a petition with Norfolk Southern’s name on it, and Carter’s name on it, they’ll know it is cert-worthy.” The Phillips name on a brief before the Supreme Court does not come cheaply. A petition for certiorari costs a client between $35,000 and $75,000, Phillips says, depending on the complexity of the case and whether his services include “lobbying” the Justice Department to join his client’s side. Phillips tried just that for Norfolk Southern last term, seeking the Justice Department’s support in a railroad crossing preemption case, Norfolk Southern v. Shanklin. After meeting with Solicitor General Seth Waxman, the government sided with Phillips’s adversary. But Phillips won the case anyway. Once a case is accepted, a Phillips brief on the merits will run between $100,000 and $300,000. To argue it before the justices, Phillips charges $25,000 more. Phillips is one of the few top advocates who does not practice his arguments beforehand in moot courts. He’ll sit around the table with Sidley colleagues and others who have thought about the case, but nothing formal. “I’ll do whatever is necessary, but I don’t sequester myself,” Phillips says. That does not mean he is casual about preparation, however. In the weeks before an argument, he says, “you never get the case out of your mind. You wake up and realize you must have spent the whole night thinking about the case, because you have five new ways of looking at it.” In spite of the preparation, he reassures anyone who asks that he has a life outside work: “I have two kids, three dogs, and I’ve coached every sport known to mankind. I coached softball against Ken Starr.” Since much of Phillips’ practice is for corporate clients, it surprises some that he also offers a helping hand to federal public defenders. Eight years ago, Phillips recalls, a federal court official called him for help, bemoaning the uneven quality of advocacy before the Supreme Court by public defenders. Rarely were they a match for the solicitor general’s office, the official said. With 15 former Supreme Court clerks in his shop, Phillips organized a project to give public defenders assistance before their Supreme Court arguments. “It seemed like a fun project at the time,” he says, adding that it gives his firm’s lawyers valuable experience as well. Under his supervision, Sidley lawyers helped put the defendants’ case in shape for cases that have turned into blockbusters — including U.S. v. Lopez in 1995 and Dickerson v. U.S. earlier this year. Carolyn Fuentes, an assistant federal defender in San Antonio, is grateful for Sidley’s help in the case she won last term, Bond v. United States — in which the Court said border patrol agents were violating the Fourth Amendment when they squeezed a bus passenger’s luggage looking for drugs. Sidley gave Fuentes an office to use in the days before her argument, and partner Jacqueline Cooper spent hours with her on her brief and argument preparations. The firm also set up a moot court session for Fuentes. “That’s time-consuming for the firm,” says Fuentes. “It was invaluable to me.” Phillips also took the call in 1998 when former college athlete and new lawyer Renee Smith looked for help in her Title IX dispute with the National Collegiate Athletic Association. Smith accused the NCAA of sex discrimination, but the association said it was a private organization and thus not subject to Title IX rules. “I read an article about the top Supreme Court lawyers and called several,” recalls Smith. “I told them I wanted to be available and participate in the briefs.” Phillips, it turned out, was the one most willing to keep her in the loop of her own case — and he was willing to do it pro bono, besides. “He was very easy to talk to,” Smith says. The case, NCAA v. Smith, is counted as a loss for Smith and for Phillips, because the Court ruled unanimously that dues payments to the NCAA from universities that receive federal funds are not enough to subject the association to suit under Title IX. But the justices left open alternative arguments, and the case is back before the lower court. Smith could ultimately win. The publicity generated by the case put her in contact with other women in similar disputes with the NCAA. “I am very happy with the situation, and Carter Phillips did a wonderful job,” says Smith. She adds, “Talking to him, you would never know he was the managing partner of Sidley & Austin’s Washington, D.C., office. And he’s from Ohio, besides.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.