Most advocates before the Supreme Court have argued there before, and for many first-timers it’s the capstone of a distinguished career, but on Dec. 3 a law firm associate will take the podium for the first time in his career.
That doesn’t happen often. The vast majority of the argument slots for this Supreme Court term—40 of the 54—have gone to repeat arguers, and this is the only slot filled by an associate so far.
The attorney is Mitchell P. Reich, a senior associate at Hogan Lovells in Washington. Beyond the distinction of arguing before the court as an associate, the opportunity to field probing questions from razor-sharp justices pushes lawyers, said Neal Kumar Katyal, a former acting U.S. Solicitor General who is a partner at the firm and co-director of its Supreme Court and appellate practice group. He plans to be second chair for Reich at the arguments.
“It doesn’t just affect your reputation—it really does affect your actual lawyering, and the drafts you’ll write are going to be better because of it,” he said.
Creating such opportunities could change what the Supreme Court Bar looks like, according to Amir H. Ali, who is Supreme Court and appellate counsel at the Roderick & Solange MacArthur Justice Center. Ali argued before the Supreme Court when he was an associate at Jenner & Block.
“I think we do see that the teams that are writing the briefs, which are often made up of a number of associates, look a lot more diverse than the Supreme Court Bar itself that stands up and argues the cases,” he said.
Katyal saw this as part of his own commitment to trying to change the low numbers of women and minorities who argue at the Supreme Court. “Mitch is an example of that,” he said. “I mean it’s very rare to have openly gay attorneys arguing at the U.S. Supreme Court, but Mitch is one.”
Arguing the Case
Reich is representing Simon E. Rodriguez, trustee for the bankruptcy estate of United Western Bancorp Inc. Rodriguez has argued that the company owned a $4 million tax refund that arose from losses incurred by a subsidiary, United Western Bank, when it declared bankruptcy. The Federal Deposit Insurance Corporation, the receiver for United Western Bank, has said the refund already belonged to the bank, so the bank shouldn’t be treated as one of multiple creditors vying over a parent’s estate in bankruptcy.
The case could alter the fate of corporate tax refunds that can run into the hundreds of millions of dollars and help resolve a dispute in lower circuit courts over what rule governs these fights.
Reich and a former colleague found the case after the U.S. Court of Appeals for the Tenth Circuit issued a decision in it. He said it stood out as a very economically important issue where the lower courts were split and the legal rule the Tenth Circuit was applying seemed questionable.
Reich was involved right away with the initial pitching of the case, and it was his hard work on it as well as his previous experience and reputation that helped him get the argument, Katyal said.
It’s sometimes hard to get clients to be thinking right away about an associate arguing a Supreme Court case, Katyal acknowledged, but he said it becomes an easier sell as the clients get to know the associates.
And providing early opportunities to argue helps with recruitment, he said. “That allows us to hire not just Supreme Court clerks but the very best Supreme Court clerks and the very best court of appeals clerks.”
Reich clerked for Supreme Court Justice Elena Kagan before joining Hogan Lovells. He has briefed eight Supreme Court merit cases over the past two terms and second-chaired cases for Katyal—Cyan v. Beaver County Employees Retirement Fund and Hall v. Hall, according to the firm’s website.
“I definitely think clerking at the court is incredibly helpful preparation because you just see a lot of arguments, and that in itself is very helpful,” Reich said.
A Pressure Cooker
Still, not every firm will want to tap a first-timer to argue at the Supreme Court, said Lindsay Harrison, a partner at Jenner & Block who argued at the court as an associate.
“When the stakes are high enough to reach the Supreme Court, you often find that clients or the firm itself want the argument to be handled by someone who has been there before,” she said.
Sometimes deciding who should take a case will depend on whether partners are already getting the opportunity, said Michael Kimberly, a partner at McDermott Will & Emery who is co-chair of its Supreme Court and Appellate Practice Group. He first argued before the Supreme Court when he was a senior associate at Mayer Brown.
“You’re more likely to see it in circumstances where a firm is doing well that term, which makes it a bit easier for the partners to give up a case and not feel the sort of market pressure to take all of the opportunities within the firm themselves,” he said.
In Reich’s case, both he and Katyal said this had nothing to do with it, although Katyal himself is arguing before the Supreme Court on Dec. 11. “Just speaking personally, from the minute I saw a circuit split, well before the case was granted, I thought this was a perfect opportunity for Mitch to argue before the Supreme Court,” Katyal said.
Although there’s more preparation involved, the process of readying for arguments is the same as with arguments at other courts, Reich said—including studying the briefs, thinking through the questions, and participating in moot courts.
In fact, by the time of arguments Reich expects to have done five moot courts with other lawyers. “We do a mock oral argument that’s about 30 minutes to an hour where they just ask questions that a judge might ask and I answer them as if it were the oral argument, and then afterwards we have a feedback session where folks say what worked for them, what didn’t,” he said.
That’s in addition to all the reading he does. “I read through all the briefs very closely, all the cases and statutes and regulations very closely, and the record in the case,” he said.
For Supreme Court arguments in particular, some of the focus in moots shifts, Katyal said. “For one thing, stare decisis—the role of precedent—plays far less of a role, because the Supreme Court can overrule any decision that it’s written,” he said. That leads to more questions involving hypotheticals or pressing the limits of a position, he said.
Reich’s case, Rodriguez v. FDIC, will come before the justices as one of two cases argued Dec. 3.
—With assistance from Kimberly Robinson.
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