It can be feast or famine for U.S. Supreme Court practitioners — even for Carter Phillips of Sidley Austin, who has argued 76 cases there, more than anyone now in private practice.
Last June, Phillips chalked up three victories in one week, including his high-profile win over the Federal Communications Commission on behalf of Fox Tele­vision Stations on the issue of broadcast indecency.
But during the term that began last October and ends next month, Phillips had no Supreme Court arguments at all. "It was a little strange — the first time since the 1995 term I was shut out," he said. "It was one of those terms where the ball did not bounce my way."
That did not mean Phillips could go fishing, however. He officially started as chairman of Sidley’s executive committee on May 1 after a transitional year as co-chairman with Thomas Cole, who stepped down.
In addition, Phillips said, "Last year was unbelievably busy with court of appeals cases. Since last May I have argued 11 cases in seven different circuits." And he’s happy with that, noting that "the nice thing about court of appeals cases is that they are more lucrative." They often involve more issues and research than at the Supreme Court, Phillips said, so can generate more fees "just on a purely hours basis."
Phillips argued his 100th case before federal appeals courts in December. Charles Douglas, chairman of the firm’s management committee, said at the time, "It is a testament to the depth and breadth of Sidley’s appellate practice that Carter has reached those kinds of numbers."
On behalf of SynQor Inc., Phillips won an appeal before the U.S. Court of Appeals for the Federal Circuit in March, affirming its $95 million jury verdict in a patent infringement case. Also before the federal circuit, Sidley partner Constantine Trela Jr. won another infringement case in March for clients eBay Inc., Microsoft Corp. and Dell Inc. against Kelora Systems LLC.
Sidley does have one case pending before the Supreme Court: Maracich v. Spears, a dispute under the Driver Privacy Protection Act. Partner Joseph Guerra argued that the law does not permit class action lawyers to use personal information obtained from state motor vehicle divisions for mass solicitations.
And despite his global duties as chairman of the firm, Phillips hopes his high court drought will soon end. "I have a couple of cases still on the orders list for this term and I am working on several cert petitions. So hopefully one or more will pop up."