In a legal market so oversaturated that clients are successfully insisting that outside firms rein in costs and firms are laying off lawyers and staff, three veteran New York–based attorneys believe they've found a niche that isn't yet being served.
Philip Lacovara, 69, Evan Davis, 69, and George Davidson, 71, all former Am Law 100 appellate specialists, have teamed up to offer what they see as a valuable service: a moot panel designed to provide lawyers pursuing an appeal with honest criticism from a neutral source.
Operating under the moniker "The Panel," Lacovara, Davis, and Davidson plan to charge $8,000 apiece—$24,000 for the triumvirate—to review briefs, hear arguments, and give oral feedback related to specific cases. The three attorneys say that issuing written conclusions about the arguments isn't part of their pitch and emphasize that they will only venture an opinion about whether those who hire them are likely to win or lose if asked.
The idea appears to be a rarity within an appellate bar that tends to rely on colleagues, friends, or law school clinics to test out arguments, often at little or no charge. Lacovara, Davis, and Davidson argue that if a company has millions or even billions of dollars at stake in an appeal, spending several thousand more ensuring that the best possible case is made is a worthwhile investment.
"When you talk to appellate judges, they are sometimes frustrated that even very good lawyers aren’t well prepared and seem to be startled or stunned by some of the questions that are asked," says Lacovara, a retired Mayer Brown partner who frequently serves as an arbitrator and mediator, on the genesis of the new business. "What we’re emphasizing is, we are completely detached from the case, coming on it fresh just as would appellate judges. We therefore think we can be more objective and more rigorous in various lines of questioning."
While Lacovara, Davis, and Davidson are all appellate lawyers, the three have taken divergent paths since graduating from Columbia Law School within a few years of each other in the 1960s.
Lacovara, who became senior counsel at Mayer Brown in 2004, has 18 appearances before the U.S. Supreme Court to his name, including arguing the Watergate era's so-called Nixon tapes case. His time in government also included stints as deputy U.S. solicitor general and special counsel to New York City police commissioner Patrick Murphy in the early 1970s. After leaving government service, he worked at Hughes Hubbard & Reed before taking senior in-house positions at General Electric Co. and Morgan Stanley & Co. Lacovara began his career with a clerkship for Judge Harold Leventhal at the U.S. Court of Appeals for the D.C. Circuit.
Davis—who clerked for Leventhal a few years after Lacovara's tenure with the judge ended—spent much of his career at Cleary Gottlieb Steen & Hamilton, where he has held the title senior counsel since July 2012. Active in New York politics, he served as counsel to then–New York Governor Mario Cuomo from 1985 to 1991 and made an unsuccessful run to become the state's attorney general in 1998. The only one of the three who hasn't argued before the Supreme Court, Davis is also involved in the New York City Bar Association and once served as the group's president.
Davidson is a Hughes Hubbard lifer who retired from the firm at the beginning of the year. In addition to his practice, he has served as president of The Legal Aid Society and chairman of the Federal Defenders of New York and continues to sit on the boards of several nonprofit organizations. His experience includes arguing cases in 16 appellate courts in seven states, seven federal circuits, and at the Supreme Court.
Davidson likens the perspectives the three men bring to the venture to Aristotle's three modes of persuasion: ethos (Davidson), pathos (Davis), and logos (Lacovara). "I would call Phil theoretical, with a very strong intellectual approach to the law," Davidson says. "I think of Evan as being sensitive to the moral dimension of the case, where’s the right and wrong in the situation. And I’m more oriented toward the practical."
It's unclear how much demand for the service there will be. Interviews with eight attorneys, a mix of East Coast appellate lawyers and in-house counsel around the country, revealed that even those who recognize the potential value of the service being offered believe the methods already available for testing the strength of an appeal work well and are typically less expensive.
Matthew McGill, a Gibson, Dunn & Crutcher appellate partner based in Washington, D.C., says lawyers in the district tend to help out friends at competing firms as a matter of professional courtesy. "I think certainly there’s a market for moot court services, and I think there may be circumstances in which you may want to get outsiders to assist with a moot court to obtain a fresh perspective," McGill says. "But generally we can obtain that here in the D.C. area without separately retaining people specifically for the purpose of a moot court."
Carter Phillips, a Supreme Court veteran and the D.C.–based chair of Sidley Austin, said by email that Sidley partners who conduct moots—something he says he never does—can rely on colleagues not assigned to a case to road-test their arguments.
"So I think it very unlikely that we would use them," Phillips says. "Obviously, clients might have a different take, but since we have very experienced appellate lawyers in the firm and we can cover all the circuits and the Supreme Court with multiple former clerks, it is pretty unlikely our clients would prefer to go outside the firm." (Davidson notes that even when firms rely on their own lawyers to fulfill a moot court function, the client still incurs a charge for the time spent.)
Julie Lewis, the deputy general counsel for litigation at medical imaging company Carestream, says that while it sounds like "an excellent idea," she doesn't think it would be worth the price for anything less than the most important appeals, or if the lawyers handling the appeal came from out of state and wanted venue-specific expertise that Davis, Lacovara, and Davidson might be able to provide. "Larger law firms are already doing that and are capable of doing that," she says of the moot process.
In-house lawyer Duane Holloway, who oversees litigation as a vice president and chief counsel at Caesars Entertainment, says he'd consider hiring the group "if they were the right three lawyers" to help his team prepare for a major case. Holloway adds that he sometimes hires retired judges to serve in a similar function.
For now, the business is in its early stages. Brochures have been printed and a website launched, and the trio is starting to solicit potential customers. All three lawyers acknowledge that they don't yet know how the market will respond or whether they've priced their service appropriately.
What they believe they do know is that for even the most seasoned lawyers, preparation is paramount.
"I wouldn’t go so far as to say it's malpractice not to do a moot court," says Davis, "but I do think it makes a whole lot of sense."