NATIONAL LAW JOURNAL

Supreme Court Brief

Tony Mauro

Marcia Coyle

Jul 25, 2018

Media and special interest group scrutiny of U.S. Supreme Court nominee Brett Kavanaugh shifted into overdrive after the release of his Senate Judiciary questionnaire. No word yet on a hearing date. We take a look at his advice for appellate lawyers and tell the story of former Stris & Maher appellate leader Dan Geyser's new journey into solo practice. Thanks for reading Supreme Court Brief. We welcome your feedback. Contact us at mcoyle@alm.com and tmauro@alm.com.

Kavanaugh’s Rules of the (Appellate) Road
Supreme Court nominee Brett Kavanaugh’s long paper trail as a lawyer, judge and public speaker is yielding important insights into his habits and preferences as a jurist and as a consumer of the work product of appellate advocates.

At a 2011 summit of the Appellate Judges Education Institute in Washington, Kavanaugh offered a glimpse into his thinking as a judge, and processes that he is likely to bring with him if confirmed as a justice. Some of his tips for advocates and judges, condensed for length and clarity:

➤➤ Oral arguments matter. “Oral arguments are the first time that I'm learning what my fellow judges might think about the case, and that's important for the lawyers to understand, because you're getting in the middle of a conversation. But the important thing to remember as a lawyer is that conversation is starting among the judges at oral argument, and you want to be part of that conversation if you could.”

➤➤ Be candid, and avoid ellipses. “It's important to quote fairly and accurately the text of the statute in question. The lawyers have to be candid about what's the better reading. Do not stretch a precedent or the meaning of a statute. Do not use ellipses in the key qualifying phrase in the precedent. Every time I see an ellipsis in a quote, I immediately look at the case to see exactly what the wording of the statute was. Because so often that's where the bodies are buried.”

➤➤ Clarity counts. “I am very concerned with trying to set forth an opinion that is marked by clarity and workability in terms of what's going to happen. Will people know what the rule is? And will this really work in the real world? And therefore, in turn, I'm looking from the lawyers at oral argument and in the briefs, ‘What is the big picture here?’ And, ‘If your rule prevails, how will this all work?’”

➤➤ Judges are generalists. “We're dealing with a huge range of issues on a daily or weekly basis at oral arguments, and the lawyers are the experts. It's the job of the best appellate lawyers to bridge the gap. We would like to become experts in everything, but you're going to have spent months or years on something that we're going to have a 45-minute, one hour oral argument on.”

➤➤ Focus on the issues. “Well, [I look at] the appellant's brief to see what the issues are and then go back to the district court opinion. It could be the case that the district court opinion addressed six issues, but only two of them are on appeal, so if you started with the district court opinion you might miss that … That's a critically important part of my thinking and decision-making process.”

➤➤ Above all, civility. “I try to always keep the tone toward the lower court judge and toward my colleagues as respectful as I can. Realizing, number one, that's the way I like to be, and number two, I think that also helps set an example for a profession that needs more civility. Civility doesn't mean giving up your principles, doesn't mean giving up your position, but it does mean, for me, trying to always display respect for the opposing position for the counsel and for the lower court judge.”

High Court Veteran Takes Solo Path

Oh ye few and ye brave who cut the law firm tether and go forth in search of independence and solo appellate practices. Dan Geyser, formerly at Stris & Maher, is the latest to go it alone to build a Supreme Court and appellate practice.

Based in Dallas, Texas, Geyser headed the boutique's Supreme Court and appellate practice until May. He handled seven merits cases in the high court in the last three terms, arguing four of those cases for a 2-2 win-loss ratio.

In the new term beginning Oct. 1, Geyser (left) will argue Obduskey v. McCarthy & Holthus on whether non-judicial foreclosures are covered by the Fair Debt Collection Practices Act. His former law partner Peter Stris has argued seven high court cases. Geyser argued Digital Realty Trust v. Somers (9-0 loss) ; Lagos v. United States (9-0 win); U.S. Bank National Association v. Village at Lakeridge (9-0 win), and Midland Funding v. Johnson (5-3 loss).

Geyser told us about his approach to his practice:

“Normally I prefer to do my own research and write my own briefs. I think that produces the best product. You know where all the skeletons are buried, the best arguments and nuances. I realized over time I could do better briefs more efficiently working on my own. Since things were going well and a lot of my practice was separate anyway, it was time to give it a shot to make it on my own.”

Geyser said his clients have come directly through his own contacts over the years—a mix of clients, some referred from other firms and people who knew him. Friends who are stakeholders with public interest groups also reached out. It was a variety of different sources for the work.

"I'm probably not alone in wondering if it will keep busy and I hope it will," he said. Lately, however, he said it has been "ridiculously busy." He is working on two Supreme Court briefs, a Ninth Circuit brief, opposition to a rehearing petition and other items. He will do the same type of appellate work as elite law firms, he said.

"One nice thing about being on your own is when someone proposes something, it doesn’t take long to arrange a meeting to vote on it," Geyser said. "For different clients, different fee structures work best for them. My general feeling is if you do great work and keep people happy, they’ll come back and tell their friends. Sometimes it means giving up a little in the short term."

Even without starting the firm, he would have been in an "unusually tight" work stretch, said Geyser who is married with two young children. "But I do see a light at the end of the tunnel. I hope to keep it busy but not overwhelming."

Thomas's Majority Assignments

A few weeks ago, we wrote about how Justice Clarence Thomas will become the senior associate justice with the retirement of Justice Anthony Kennedy on July 31. That means Thomas gets to assign the majority opinion when he is in the majority and Chief Justice John Roberts Jr. is in dissent.

We noted that Thomas has assigned at least two majority opinions: the 2015 challenge to Texas’s refusal to allow a confederate flag symbol on specialty license plates. Thomas assigned the majority opinion in favor of Texas to Justice Stephen Breyer. And in Dolan v. United States, he turned again to Breyer in 2010 when his more senior colleagues were in dissent.

There's at least one more. Mayer Brown's Evan Tager told us: "I am pretty sure that Thomas got to assign the opinion in CSX v. McBride, a case in which my firm was on the short end." Thomas joined his colleagues on the left in an unusual alignment.

In Case You Missed It
>> Kavanaugh's only argued once in the high court, but what about briefs? Our report.

>> Kavanaugh's recused in more than 100 cases in the D.C. Circuit, a far cry from the thousands of Neil Gorsuch recusals in the Tenth Circuit.

>> Well, that was quick. White House counsel Don McGahn called Kavanaughwithin hours of Anthony Kennedy punching the clock.

>> Lawsuits involving disgraced comedian Bill Cosby and the statements his lawyers made in his defense are now before the U.S. Supreme Court.