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On the last Monday of September 1999, Laura Furgeson, a library assistant with Mayer, Brown & Platt’s Washington, D.C., office, waited eagerly in the clerk’s office of the U.S. Supreme Court. It was a grant day, and the partners in the firm’s appellate practice group were anxious for the new list of cases the Court had agreed to hear. Safely returned to the firm’s library, the list of 10 cases was copied and distributed to a small group of lawyers who began sifting for legal nuggets. On this day, Evan Tager, a 40-year-old partner with an eternal law review pallor and a jeweler’s eye for issues, spotted an 8th U.S. Circuit Court of Appeals case styled Weisgram v. Marley. He found a synopsis of it in U.S. Law Week and instantly recognized the case as a keeper. In 1993, he learned, Bonnie Weisgram was killed in a fire at her home. Her son, Chad, sued the maker of Weisgram’s heater, claiming the heater was defective and that it caused the fire. He won a large verdict, but the 8th Circuit ruled that his expert’s trial testimony was unreliable. The issue before the Supreme Court: Should the 8th Circuit now enter judgment for the heater manufacturer, Marley Company, or allow Chad Weisgram to retry his case? The Supreme Court had been kind to corporations in recent years, empowering federal judges to screen out speculative, potentially damning expert testimony. Weisgram, though, could undermine that by forcing defendants back into trial after an appellate court had found that a verdict was based on junk science. Tager picked up the phone to call Stephen Shapiro, the founder and senior member of Mayer Brown’s appellate section. Shapiro agreed the case was important, and he knew of a corporate client that would be interested in the outcome. He got on the horn to the client’s general counsel, who hired Shapiro to file an amicus brief. With that toehold, Mayer Brown would work its way deeper into Weisgram and help steer it, like so many cases before it, to a successful resolution. In 17 years, the firm has built one of the country’s premier appellate departments. It handles complex, high-dollar assignments all over the country, but Supreme Court work is its signature dish. In the past five years, Mayer Brown has argued 21 cases in the high court, more than any other firm. Its current roster of lawyers have argued about 200 cases combined, also the most, and the firm typically represents parties or amici in 15 Supreme Court cases on the merits a term, a sizable chunk of the available workload for defense firms. Supreme Court work is not for the meek; it is an exclusive, narrow niche and growing more narrow by the year. Traditionally, up until 1990, the Court heard 150 or more cases a term. It is down to about 80 cases, a fraction of the 8,000-plus petitions for certiorari filed annually with the court. So to get a piece of the action, firms have to hustle. Weisgram would underscore that and highlight why Mayer Brown is one of the dominant players in the market. Mayer Brown formally entered the Supreme Court picture in 1983 when Shapiro returned to the firm, following a five-year sabbatical in the solicitor general’s office. Like many lawyers who have worked in the office, which represents the federal government in the Supreme Court, Shapiro was overwhelmed by its sophisticated approach to appeals. He was particularly impressed by the division of the office into substantive areas of expertise, such as antitrust and securities law. Shapiro’s simple, but novel, vision was to create an SG-knockoff in the private sector. At the time, law firms might have one or two lawyers who focused on appeals, but certainly no departments. The prevailing wisdom was that a litigator is a litigator is a litigator. Shapiro, though, believed that if he built an appellate dream team, industry would come. The surest and quickest way to do that was to lure lawyers from the SG’s office, but that would take a considerable investment — the lawyers would have to be hired at a senior level, even though they wouldn’t bring a ready client-base. Faced with this risk, Shapiro and Mayer Brown didn’t flinch. Robert Helman and Leonard Herzel, the cochairs of the firm at the time, backed Shapiro’s vision, believing, too, that there was an underserved market for appellate expertise. They wholeheartedly endorsed Shapiro’s 1984 hire of Paul Bator, a former Harvard University law professor who was the number two lawyer in the SG’s office. With Bator, who died in 1989, the appellate department had its first star. Less than two years later, it would have a constellation. Before he rejoined the firm, Shapiro told Andrew Frey and Kenneth Geller, the deputy SGs in charge of criminal and civil law, respectively, that if they ever wanted to leave government, he hoped they would call him first. In January 1986 they did just that. Frey says he was in his office one Saturday with Geller and Kathryn Oberly, another top lawyer in the office, when he suggested that, after 13 years at the SG’s office, it was time for him to head into private practice. He asked Geller and Oberly whether they’d also be interested in jumping ship. Frey says he figured that he wouldn’t be joining an established appellate department, so he wanted to travel in tandem with his colleagues. “You don’t want to be the only person doing something,” he says. He called Shapiro and 10 minutes later Shapiro called back, “This is fabulous — you need to get on the next plane to Chicago.” Shapiro had worked with Oberly and, like Frey and Geller, he regarded her as a catch. Despite Shapiro’s eagerness to hire the three lawyers, Frey wanted to explore his options. He called other firms but soon ran into a roadblock: firms were thrilled at the prospect of Frey, Geller, or Oberly, but they couldn’t absorb all three. With Helman and Herzel’s backing, Shapiro brought the threesome on board. Frey, with more than 60 Supreme Court arguments to his credit, and Geller, with about 40, are two of the top appellate partners at the firm; Oberly left in 1991 for Ernst & Young, where she is now the general counsel of the accounting firm. Mayer Brown followed its 1986 haul with other high-level hires from the solicitor general’s office, and, over time, it built a foundation for this talent through its associate ranks. The appellate section now has about 35 lawyers, including seven from the SG’s office, spread out over three offices: Chicago, D.C., and New York. True to Shapiro’s vision, the appellate section also boasts many subspecialties, including antitrust and securities law (Shapiro), administrative law and constitutional preemption issues (Geller), and punitive damages and commerce clause issues (Frey). Mayer Brown has no lock on appellate talent, but team lawyers claim they are much deeper, with more first-chair Supreme Court experience, than their competitors: Sidley & Austin, Hogan & Hartson, Gibson, Dunn & Crutcher, Jones, Day, Reavis & Pogue, and O’Melveny & Myers. “Mayer Brown can rightfully say they have more heavily qualified [Supreme Court lawyers] than any other law firm in the country,” says Thomas Goldstein, a D.C. competitor, who will argue two Supreme Court cases next term. “Top to bottom, across the board … no one really compares.” Richard Lazarus, a Georgetown University law professor who runs the school’s Supreme Court Institute, says that Mayer Brown spreads its Supreme Court workload more evenly than other firms. But, he says, this egalitarian approach may not sell as well as the Sidley model, which is to funnel the work more through a central figure, namely Carter Phillips, who is one of the top Supreme Court practitioners in the country. “Businesses like that clear leader,” says Lazarus, who has argued 11 cases before the Supreme Court. The flip side, he concedes, is that Mayer Brown can probably handle more high court cases competently at once. “There is some risk in the Sidley & Austin model, with who is doing the research,” he says. “I’m not saying there is a bait and switch problem, but that is the issue.” The problem for Mayer Brown is not depth but, rather, that there is not enough work to go around. The Supreme Court started scaling back its docket in 1989, when it heard 146 cases on the merits. The docket has declined, steadily, ever since. Last term, the court heard only 83 cases. Even worse for defense firms, no more than 30 to 40 cases a term concern the business community. Lawyers offer various explanations for the dwindling docket, the most common being that the Supreme Court justices have simply decided that they can not competently sustain a 150-opinion workload. The result is that firms must increasingly settle for the peripheral work of representing trade associations, public interest groups, and corporations in their amicus efforts. This is not as lucrative as merits work — on average, Mayer Brown charges about $25,000 to write an amicus brief as opposed to $250,000 and up to represent a petitioner in a case start-to-finish. In Weisgram, Mayer Brown had more on its mind than just amicus work. It also wanted to represent Marley Company, the maker of the allegedly defective heater, as did other firms. John Burtis, director of claims and litigation for Marley’s parent company, says three or four defense firms called to offer to take over the case from Marley’s trial lawyer, Christine Hogan of Bismarck, N.D. He won’t identify the suitors, but he says they were all big-name firms. Mayer Brown did not call Burtis directly, but it did have a client call on its behalf. “The firms must have felt that in North Dakota, they can’t have any appellate talent out there, and [Marley] must need help,” he says. Meanwhile, Hogan, a partner in 16-lawyer Zuger Kirmis & Smith, considered the jockeying shameless. Like most litigators, she dreamed of one day arguing in the Supreme Court. In fact, she was something of a Court fanatic — she was a lifetime member of the Supreme Court Historical Society and owned an audiotape collection of famous oral arguments. “I happily played and replayed my favorite argument tapes the way a Beatles fan might play ‘Abbey Road.’ All the while wondering … what it would be like … to stand before the Supreme Court?” she wrote in an article, published this month in For the Defense, about her role in Weisgram. Luckily for her, Burtis decided to dance with the one who brung him. After he learned about the case, Shapiro put a call into Brunswick Corporation, a Lake Forrest, Ill.-based client of the firm. At the time, Mayer Brown was representing Brunswick in a case that could be adversely affected by a pro-plaintiff ruling in Weisgram. Shapiro suggested to Brunswick’s general counsel, Dustan McCoy, that the company should file an amicus brief. He also asked McCoy to call Marley and offer Mayer Brown’s services. McCoy put a call into Burtis, but Burtis made it clear right away that he was sticking with Hogan. As unseemly as it may seem for Shapiro to reach out for business, it is the price that firms must pay to maintain a heavy diet of Supreme Court work. Some practitioners, though, are not willing to pay the price. Hogan & Hartson, for example, does not prospect for Supreme Court work, according to John Roberts, head of the appellate section. He says he’s not comfortable cold-calling prospective clients, and he is not confident it is effective. Roberts’s attitude: “If you do a good enough job, the cases will find you.” Alan Morrison, the director of Washington, D.C.’s Public Citizen Litigation Group, says that Mayer Brown is relatively aggressive about seeking out Supreme Court cases, even pro bono matters. Last term, for example, Morrison spotted a case involving a prisoner that the Supreme Court had just agreed to hear. His group represents indigent Supreme Court parties for free, so he wrote a solicitation letter to the prisoner, only to find that Mayer Brown had already offered to represent him pro bono. “Firms are hungry,” says Morrison. “They need [Supreme Court] cases for their lawyers to brief and argue.” From an economic standpoint, though, it doesn’t seem to make sense for Mayer Brown to prospect for Supreme Court business. Firm partners concede that the work is less lucrative than lower-court appellate work, which accounts for the vast majority of the appellate section’s billables. In circuit court cases, there are usually many more appellate issues to investigate and brief. By the time a case makes it to the high court, the legal issues have been narrowed tremendously, so firms cannot staff the cases heavily. “Work in the [Supreme] Court now is sufficiently [scarce] that it is kind of a loss leader,” says Paul Smith, a partner in the appellate section at Chicago’s Jenner & Block. “You have high-visibility cases, which are good for recruiting, good for the firm’s image, and you can meet important potential clients, which can lead to additional work.” Geller maintains that the firm’s Supreme Court practice is profitable. He estimates that the appellate section earned $15 to $20 million in revenue in 1999, though he cautions that Mayer Brown does not account separately for appellate profits and revenue. They are counted simply as litigation finances. Using the average of Geller’s revenue figures, the 35 lawyers in Mayer Brown’s appellate section generated $500,000 in revenue, on average, slightly less than the $570,000 that Mayer Brown lawyers earned as a whole in 1999. Whether or not Mayer Brown’s Supreme Court practice is strictly a loss leader, it is certainly a leader, opening doors to more lucrative lower court assignments. Frey, for example, came to be known as a punitive damages expert, thanks in part to his representation of BMW of North America, Inc., in a landmark 1996 Supreme Court ruling that placed constitutional limits on punitive damages. Now Frey, and a team of Mayer Brown lawyers, are eagerly sought by corporations to intervene in trials when it seems like a punitive damage award is possible. Beyond dollars and cents, Supreme Court work is also clearly a labor of love for Mayer Brown. The appellate lawyers in the firm are a bookish lot, who follow the Court religiously. They consider themselves quasi-academics who play a central role in the development of the law. True to form, you can find them some nights wandering firm halls, in torn sweaters and bare socks, discussing the law. “This is an environment where ideas are valued above all,” says Eileen Penner, a partner in the department. “You can actually walk down the hall and have a conversation about four Supreme Court cases by the time you get to the water cooler.” Early this year, one of those cases likely would have been Weisgram. Mayer Brown would expand its initial supporting role in the case — filing an amicus brief for Brunswick — into something more substantive. Soon after the court granted certiorari in September, Shapiro called Hogan to offer his assistance. Despite her earlier uneasiness with firms’ efforts to displace her, Hogan eagerly accepted Shapiro’s free advice. During the briefing stage of the case, he was in close contact with Hogan, offering guidance about how to address various issues. He also reviewed Hogan’s final draft to ensure that Brunswick and Marley were sending a coordinated message to the Court. In early January, as the date for the argument neared, Shapiro organized a moot court for Hogan at Mayer Brown’s Chicago headquarters. He and eight other firm lawyers acted as Supreme Court justices, peppering Hogan with the sort of hostile questions and hypotheticals she could expect from the Court. To round out the firm’s services, Ken Geller met Hogan on the morning of the argument, to make sure she knew where to go. He waited with her in the lawyer’s lounge, as the seconds ticked away until her argument. In late February, Hogan learned the good news: the Court ruled 9 to 0 that Chad Weisgram could not retry his case. Hogan says she was thrilled about the ruling, though not surprised. “Our position had been laid out clearly, in large part because I had the help … of Steve Shapiro.” With the Court’s 2000 term now under way, Laura Furgeson has resumed shuttling to and from the court. Each week, she brings the promise of another important precedent-in-the-making. Mayer Brown’s appellate lawyers, likewise, have swung into gear, eagerly watching the weekly list of cert grants in the hopes of landing another Weisgram.

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