Litigation Daily

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Jenna Greene

Jan 22, 2019

Good morning! It’s January 21 and I’m Lit Daily editor Jenna Greene, here with your Daily Dicta. Reach me at jgreene@alm.com or on Twitter @jgreenejenna.

A heads up that Lit Daily will not publish tomorrow--I've got the day off.

How Hogan’s Neal Katyal Aces Back-to-Back Appellate Arguments

Hogan Lovells associate Katie Wellington (above, right) will make her first appellate argument on Tuesday, appearing before the U.S. Court of Appeals for the Tenth Circuit in Denver on behalf of Ford Motor Company in a suit involving wrongful death claims and the statute of limitations.

It’s a career milestone, the culmination of years of training and hard work by the former clerk to U.S. Supreme Court Chief Justice John Roberts Jr. and (then) D.C. Circuit Judge Brett Kavanaugh.

But don’t expect her to cut loose and relax once it’s over. Because eight days later, Wellington is due in Cincinnati to appear before the U.S. Court of Appeals for the Sixth Circuit in Samarripa v. Ormond as court-appointed counsel. The case addresses an issue on which the circuits have split—do courts have discretion to impose a partial filing fee on habeas petitioners?

“I’m really excited. I feel extremely fortunate to have the opportunity to argue two courts of appeal arguments as a mid-level associate,” Wellington said.

That it’s happening so close together … well, that’s not actually uncommon for members of Hogan’s appellate practice.

Two years ago, practice co-head Neal Katyal (above, left) had to argue two U.S. Supreme Court cases a day apart; and twice more in that same year, he argued two different Supreme Court cases a week apart from one another.

It’s not just him. Appellate co-head Cate Stetson last year went to Omaha to argue Vallejo v. Amgen in the Eighth Circuiton May 15, then returned to Washington for Amgen v. Azar in the D.C Circuiton May 17. The next day, she was in Atlanta before the Eleventh Circuit for Health First Inc. v. Capitol Specialty Insurance Corp., then off to Chicago for Kleen Products v. Georgia-Pacific before the Seventh Circuit on May 23—four arguments (and 5,000 miles) in nine days.

Other firm lawyers have been in the back-to-back hot seat as well. For example, Sean Marotta on December 10, 2018 argued Comptroller of Maryland v. Wynne in Maryland Circuit Court, followed the next day by Bandemer v. Ford Motor Company before the Minnesota Supreme Court.

Also in December, associate Mitch Reich appeared before the D.C. Circuit on the 17th to argue S.M.S.R. v. Trump and again three days later for Micula v. Government of Romania.

And last week, partner Jessica Ellsworth was before the Federal Circuit arguing Autobody Parts Association v. Ford Global Technologies on Jan. 8, followed by a trip the Third Circuit on Jan. 10 for United States ex rel. Bookwalter v. University of Pittsburgh Medical Center.

In some ways, it’s a problem many lawyers wish they had—how to juggle all these awesome appellate arguments?

To be sure, Hogan’s appellate practice group substitutes other lawyers when it’s feasible or even asks the court to reschedule. But when a lawyer like Wellington has been living and breathing a case from the beginning, Katyal said it wouldn’t be right to give her argument away to someone else just because of tight scheduling.

So how—in a nitty-gritty, practical sense—do the litigators actually do it? From keeping the facts and case cites straight to remembering this time if you’re appearing on behalf of the appellant or appellee?

Katyal likens it to high school or college, when you take final exams one after another—history in the morning, biology in the afternoon; English the next day, then calculus, then French (My daughter is a junior in high school. That was her December finals schedule. I pitied her.)

“As adults, we generally don’t have that kind of compressed schedule,” said Katyal (who also has a child in 11th grade.) “But it’s something we’ve done in our lives many times.”

In preparing for back-to-back appellate arguments, he advises focusing on the second argument first. But then a week or two out, drop it and dive 100 percent into the first one. As soon as that’s over, you turn around and cram for number two.

Katyal is also mindful of the physical toll. “I don’t drive on the day of an argument, I take Uber,” he said. “And I make sure to get some exercise.”

What about sleep? “The sleep piece is really important,” he said, though he acknowledged it can be tricky if (like Cate Stetson) you’re flying around the country and staying in hotels. Still, he said he personally always sleeps well the night after an argument (“It’s the adrenaline crash”) which helps keep him fresh for day two.

On the other hand, if you’re making back-to-back appearances before the same court, Katyal said it’s necessary to be mindful of any tensions in the arguments you’re making. “You have to be really focused on that. It’s something you might get asked about,” he said.

“And this is minor but critical,” he added. “Are you the petitioner or the respondent? You could be the appellee one day and the appellant the next. You need to make sure you use the right label.”

 

What I’m Reading

Jaguar Land Rover Loses Trademark Case Against Bombardier Over Defender SUV
WilmerHale’s Louis Tompros persuaded a federal jury in Detroit that there was no likelihood of consumer confusion.

Judge Slaps Down Texas Lawyer Tagged by Plaintiffs Firm as a 'Professional Objector'
Texas-based lawyer Christopher Bandas was accused of being a “professional objector” to class action settlements by plaintiffs firm Edelson PC.

In Written Opinion, DC Judge Acknowledges 'There Is Real Hardship Being Felt by Innocent Federal Employees'
“But I want to make something very clear: The judiciary is not just another source of leverage to be tapped in the ongoing squabble between the political branches. … In the final analysis, the shutdown is a political problem. It does not, and cannot, change this court's limited role."

Shutdown Meltdown: What It Means for Law Firms and the Courts
On the latest Legal Speak podcast, retired U.S. District Judge Jeremy Fogel, former director of the Federal Judicial Center, describes what will happen as the federal judiciary runs out of money to sustain operations.

European Nonprofit Files Complaints Against Amazon, Netflix and Others Over Alleged GDPR Violations
Noyb said it tested eight streaming services: Amazon Prime, Apple Music, DAZN, Flimmit, Netflix, SoundCloud, Spotify and YouTube and found none in total compliance with GDPR Article 15. The maximum fine for violations can be as much as 4 percent of global revenue or 20 million euros, whichever is higher.

Gordon Rees Snags 19 Toxic Tort Lawyers From Hawkins Parnell, Including 15 in Dallas
“Their technical savvy and geographic breadth perfectly complements the firm’s national platform, which continues expanding to best position us to serve our clients’ needs throughout the country," said Dion Cominos, the managing partner of 892-lawyer Gordon Rees.

Ken Starr on Why He Doesn't Expect a Starr-Style Report on Trump
“Minimalist” was the word Starr used to describe what he expects to see from Mueller’s investigation of Russian interference in the 2016 election. “Firecracker” was the term he used referring to his own detailed report in 1998. (I think he forgot “salacious” and “explicit.”)

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Litigator of the Week: Paul Weiss Partner Makes a $220M Save in ‘Uncharted Territory’
Litigating a series of novel and wildly complex claims in hostile territory, Paul, Weiss, Rifkind, Wharton & Garrison partner Andrew Gordon succeeded in getting a $220 million suit against Citco dismissed on summary judgment less than two weeks before trial.

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