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It was the kind of case that most lawyers would turn away, said the lawyer who didn’t. After all, what were the damages? Gail Atwater was arrested and put into jail for not wearing a seat belt — a crime punishable in Texas by a $50 fine. She was not physically harmed and was not kept in her jail cell for an inordinately long time. But she sued the police and town officials because they would not deal with what she firmly believed was an out-of-control cop. “I’m sure most law firms would have turned down her case,” said Atwater’s counsel, Robert C. DeCarli, a partner at the two-person firm of DeCarli & Irwin in Austin, Texas. “But it was also this perfectly framed Fourth Amendment issue,” he said. When he stepped into the case at the 5th U.S. Circuit Court of Appeals, he recalls, “I realized this case was made to go to the Supreme Court.” And go it did to the justices, on the question of whether the Fourth Amendment bars full custodial arrests for misdemeanor, fine-only offenses. Last November, before the case was argued, Atwater firmly believed the high court would rule for her and she foresaw a 9-0 decision. DeCarli, in an interview then with The National Law Journal, said, “I’d be happy with 5-4.” The decision was 5-4, against Atwater. And as most lawyers who have been in the same position as DeCarli would agree, the closeness of a 5-4 defeat does little to take away its sting. Justice Sandra Day O’Connor told him during the argument, “You have the perfect case.” DeCarli recalls ruefully, “I thought we had won because we had Justice O’Connor, and she is rarely on the losing side. I thought that means we probably had five votes. What I did not know was that Justice Souter [the decision's author] would decide to make this case the case in which he decided to be a conservative again.” FIRST-TIMER DeCarli was a first-timer at the high court. He had just left an Austin law firm to build a solo appellate practice when the lawyers for Atwater and her husband — Pam McGraw and Debra Irwin, who later would partner with DeCarli — asked him to edit their 5th Circuit brief. He went on to argue the case, winning before a three-judge panel and losing en banc. He essentially worked for free, he said, but he wanted the case because it had that perfect Fourth Amendment issue; it looked like fun, and Atwater’s argument was right. But the high court case, he said, was a “dream come true” and the “most fulfilling” experience in his legal career to date. He went into it with one guiding principle: “When you’re at that level, you don’t want anyone to be able to say you could have done something more or someone else could have gotten a different result,” he explains. “I thought we would win, but losing is always a possibility so I wanted to make sure, more for myself, personally, that I would be able to say and know I did everything humanly possible.” For a solo or small-firm practitioner, “everything” essentially means putting the rest of your practice on hold from the time the Supreme Court agrees to hear your case until the case is argued. DeCarli said he spent “four solid months” on the case at the Supreme Court level. After his petition for review was granted, he recalls, “We had generous offers from the ACLU to take the case over and do it for free. The president of the state ACLU said this was something for the big boys to handle.” But his clients wanted to stick with DeCarli, not go with the American Civil Liberties Union. He spent about 2-1/2 months on the merits brief, which, he believes, should be the best brief the lawyer can write. That brief, he explained, is the basis for the justices’ first impression of the lawyer’s ability and has a direct impact on the effectiveness of the lawyer’s oral argument. If the brief helps the justices work through the issue, he said, they are more likely to believe that the lawyer can provide additional help at argument. “The converse is also true,” he adds. He also prepared for the arguments, primarily through moot courts: three with different panels from the University of Texas in the month before his argument, and then two more the week before the argument that were arranged by Georgetown University Law Center and the Cato Institute. And he read transcripts of oral arguments from past cases that related in some way to his case. DeCarli fielded about 60 questions during his 30 minutes at the podium. Although DeCarli and Irwin were seven years out of law school at the time of the Atwater case, their practice was only 2 years old. And having one of two partners spending more than 90 percent of his time on one matter was a potential practice killer. “My partner was the revenue generator during that period,” said DeCarli. “I have Debra to thank for keeping us going.” For the whole process — from the 5th Circuit through the Supreme Court — he and his partner were paid roughly $22,000 — far below the six figures commanded by large firms for Supreme Court work alone. After the decision came down, DeCarli filed a petition for rehearing. “I know motions for rehearing are rarely granted, but the average American isn’t going to understand that. They’ll think this terrible decision has come down and there’s this procedure for the court to change it, and how could you not try? That was part of my thought process, and I thought if there was any chance, I have an obligation to try.”

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