David Frederick describes himself and his colleagues at Kellogg, Huber, Hansen, Todd, Evans & Figel as “pike lawyers,” a term he first heard from a venerable local practitioner, Jacob Stein. “We take whatever comes down the pike,” Frederick said.
In part because the Washington firm is relatively small — 50 or so partners and associates — Kellogg Huber is able to take on a wide range of comers without the client conflicts that saddle some bigger firms.
“Unlike the larger firms that have very well-established corporate clients,” Frederick said, “we have a very diverse client base — states, small companies, large companies, wealthy individuals, other individuals — and a great diversity of subject matter.”
In recent years, more and more clients have been coming down the pike to see Frederick and his colleagues for appellate help, especially at the U.S. Supreme Court level. Frederick argued a rare five cases during the term that began last October, and all five of the clients came to him after the Court had granted review. Last term, he argued four times and brought home impressive wins in Jones v. Harris Associates, challenging the independence of investment advisers, and Merck & Co. v. Reynolds, a win for securities fraud plaintiffs.
The traffic is increasing for his colleagues as well. All told, four Kellogg Huber partners have argued before the Supreme Court during the current term — which happens from time to time at larger firms specializing in high court practice, but rarely if ever at firms as small as Kellogg Huber.
“All four were non-name partners,” said firm co-founder Michael Kellogg. “We don’t have a culture where the old guard grabs everything.” Almost all of its lawyers have experience as law clerks at the Supreme Court or circuit court level, and are given a shot at arguing at a younger age than at some firms.
The partners arguing at the high court this term besides Frederick were Aaron Panner, Scott Angstreich and Geoffrey Klineberg.
Not all were winners. Frederick lost two of his cases so far this term, and Klineberg had the thankless task of representing AT&T Inc., a longtime client, in arguing that the Freedom of Information Act protected corporations as well as individuals when it exempted from disclosure those documents that would harm “personal privacy” if released. When Chief Justice John Roberts Jr. came to the argument in the case, FCC v. AT&T, armed with evidence that the word “personal” does not include corporations, Klineberg was doomed, though he argued valiantly. AT&T lost, 8-0.
The 18-year-old firm, originally known for its telecommunications work, has long been a steady, if low-profile, player at the Supreme Court. Except for Frederick, its partners tend to be media-shy. But Frederick’s marquee 2009 victory in Wyeth v. Levine changed everything. The decision allowed a state tort remedy for Frederick’s client, a Vermont woman injured by a drug made by Wyeth. The drug company had argued the state case was pre-empted by federal law.
The ruling gained wide attention as a rare defeat for Big Pharma from a pro-business Court, and brought more business to Kellogg Huber — some of it from plaintiffs in lawsuits brought against business. Frederick said he has had to turn some away, and believes the broad spectrum of the firm’s clients has kept Kellogg Huber from being pigeonholed as only a plaintiffs’ firm.
Although clients may have been drawn by his win, Frederick thinks they sign up because of the firm’s smaller size and high standards for quality. The firm is small enough that there is no head of appellate practice — or any other practice category, for that matter. “We don’t have departments, we don’t have committees,” Frederick said. “The only committee I can think of is the coffee committee,” which makes sure the office caffeine supply is high grade.
And the work product has to be in the same category as the coffee. “There is a high premium on writing the finest briefs you can possibly write. A lot of care goes into writing briefs,” Frederick said.
Angstreich agrees that “there is a Kellogg Huber style in writing briefs that are rational, even-handed and persuasive.” He said, “The goal is to show why you are right, rather than using a lot of adjective- and adverb-laden table-pounding.”
Angstreich, 39, is a telecom expert who has argued more than two dozen times before appeals courts in addition to his Supreme Court debut last month. Early on, he said, he had to learn “telecom talk,” but also “how to translate that talk” for the benefit of generalist judges. Even in telecommunications briefs, he said, Kellogg Huber wants its lawyers to “make sure the finished product sings.” That is a tall order.
Frederick is also known for his calm, focused oral-argument style that seems to put justices at ease about what he is asking them to do. A veteran of the solicitor general’s office, he authored a 2003 book Supreme Court and Appellate Advocacy, full of “do’s” and “don’ts” about arguing before the nation’s highest court. A second edition came out last year.
He acknowledged that he sometimes, if rarely, violates his own advice in the heat of an intense oral argument.
And Frederick is always on the lookout for good and bad practices among oral advocates. Recently, he said with a look of horror, he heard a lawyer address a panel of federal judges as “you guys,” an informality that is never appropriate.
“At the solicitor general’s office, and here, that would never be done,” Frederick said. “There is a really important line” between proper and improper behavior in court, he said, “and that is a line you do not cross.”
Contact Tony Mauro at email@example.com.