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In many New York firms, a litigator is a litigator, whether arguing a case before the Manhattan Supreme Court or the U.S. Supreme Court. The belief that a litigator should be a generalist remains deeply ingrained in their cultures. On the other hand, firms from elsewhere have increasingly embraced the idea of elite appellate practices insulated from the daily grind of trial work. Many are now hoping to import such practices into the New York market. That is because there is client demand that New York firms are not meeting, said E. Joshua Rosenkranz, an appellate partner who recently inaugurated the practice in the New York office of San Francisco’s Heller Ehrman White & McAuliffe. “This is an area where clients seem to be ahead of a lot of the New York firms,” said Rosenkranz. “Sophisticated in-house counsel recognize that there are special skills involved in appeals.” But while many partners at New York firms agree that appellate work requires certain specialized skills, they also see the rise of such practices as driven more by marketing than by client demand. “It’s a function of whether firms feel they have someone with real marquee value,” said Harold P. Weinberger, a litigation partner with New York-based Kramer Levin Naftalis & Frankel. The marquee names tend to be U.S. Supreme Court luminaries based in firms’ Washington, D.C., offices. But while lawyers such as Carter G. Phillips of Sidley Austin Brown & Wood, Walter Dellinger of O’Melveny & Myers or Kenneth W. Starr of Kirkland & Ellis garner headlines for appearances before the high court, the Supreme Court practice is not exactly a growth market for firms. “It’s about 80 cases a year, half of which may be criminal,” said Rosenkranz. “That’s about 40 cases divided among a small number of players.” Not surprisingly, many firms are hoping to leverage the prestige of their U.S. Supreme Court practices. Mayer, Brown, Rowe & Maw, Jones Day and O’Melveny & Myers have expanded specialized appellate practices into New York, and they have encountered some skepticism, said Philip Lacovara, a New York-based appellate partner at Mayer Brown. “There is definitely a philosophy that a good litigator should be able to do it all,” he said. That is because the skills inform each other, said Weinberger. “Isn’t it better to have the lawyer who tried the case do the appeal?” he asked. “An experienced litigator should be able to handle an appeal.” Robert D. Joffe, the presiding partner of New York’s Cravath, Swaine & Moore, agreed. “Our litigators tend to do everything,” he said. “We think in the end the client is better served by broad experience.” Weinberg noted that one of his firm’s name partners was a noted U.S. Supreme Court advocate who nonetheless continued to handle trial work. “When Marvin Frankel was alive, he did a lot of appellate work,” said Weinberger, “but he never just did appellate work.” There are clearly examples of lawyers who excel in both environments, said Lacovara, but more common are great trial lawyers who simply cannot adapt to the appellate environment. “There are people who are superb trial lawyers who simply bungle the process at the appellate level,” he said. Of course, appellate practices are often pitched at clients who feel their trial lawyers bungled the case at the trial level. At Mayer Brown, Lacovara said 80 percent of the appellate group’s cases were handled by other firms below. Bringing an appellate group into a case that the firm’s own litigators have already been handling at the trial level can be trickier. Lacovara said Mayer Brown has had the distinct practices long enough that the firm’s trial lawyers and appellate lawyers regard each other with mutual respect. Rosenkranz also said that he expected few problems along the way, and added that good appellate lawyers generally worked with trial lawyers to determine the appropriate level of each lawyers’ involvement in a particular matter. But many attorneys are clearly uncomfortable with the notion of a separate appellate group perceived as more elite than the large litigation practice. The controversy is exacerbated by the fact that, at Mayer Brown and most other firms with specialized appellate practices, young lawyers are invited to become appellate specialists right out of law school or, more commonly, clerkships with federal Circuit Court judges or U.S. Supreme Court justices. The fact that appellate practices are particularly attractive to the most academically accomplished of young lawyers has lent such practices a rarified, frequently elitist air that rankles many other litigators. It has become a point of pride among some appellate lawyers that they have never worked on a case at the trial level. It can also be a recruiting headache for top firms that would like to bring aboard such young lawyers but refuse to spare them from working on document productions or other trial-level grunt work. “We tell those people they’ve been terrific at what they’re doing but they’ve only seen a part of it,” said Joffe. “We’ve been reasonably successful in getting those people. It is a somewhat different subculture.” ACADEMIC CREDENTIALS In terms of his academic credentials, Rosenkranz fits the profile of many who gravitate toward appellate rather than trial work. A law review editor at and magna cum laude graduate of Georgetown Law Center, Rosenkranz went on to clerk for both Antonin Scalia, then serving his last year as a judge in the U.S. Court of Appeals for the D.C. Circuit, and U.S. Supreme Court Justice William Brennan. Like several appellate practitioners, he has also spent relatively little time in a firm environment. Before joining Heller Ehrman this spring, he was the founding president of the Brennan Center for Social Justice at New York University School of Law. Before that, he worked in the state’s Office of Appellate Defender. “Appellate advocacy is a more cerebral sort of activity,” said Rosenkranz. “It emphasizes a lot more writing. There’s a different vocabulary.” But Weinberger criticized what he called an “ivory tower” attitude, and noted that specialized appellate skills may be less important today now that subject matter in areas like intellectual property has become so specialized and technical. But Lacovara said arguments that subject matter expertise may be becoming more important than advocacy expertise ignored the fact that most judges — even in the Federal Circuit, which specializes in patent cases — do not themselves have technical backgrounds. “You never know if you’re going to get a judge who is a patent expert,” he said. “You need to have the ability to communicate with the audience you have.” Some firms in New York are inclined to split the difference. Two years ago, Weil, Gotshal & Manges launched an appellate practice built around former Texas state solicitor general Gregory S. Coleman, now the sole lawyer in the firm’s Austin office. James W. Quinn, the firmwide litigation head at Weil Gotshal, said the group now handles the vast majority of appellate cases at the firm, but he noted that most of the group’s lawyers continue to spend a large amount of time on trial work. Moreover, associates are not allowed to join the group without spending at least a few years working in the broader litigation department. “Trials are why we get into this,” he said. “I would wonder about someone who didn’t want to do trials.” Thomas R. Newman, of counsel in the New York office of Duane Morris and author of the treatise “New York Appellate Practice,” said he certainly welcomes the spread of specialized appellate practices and the recognition of the special skills involved. But he also noted that he spent many years in general litigation before concentrating on appellate work that has taken him before the New York Court of Appeals in about 80 cases and the 2nd Circuit for another 30 matters. “Any appellate lawyer should also know what happens at the trial level,” he said. “You have to have an appreciation for what those lawyers went through.”

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