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Leading Questions: Cooley Appellate Litigator Elizabeth Prelogar

Sept. 11, 2020, 9:41 AM

Lawyers are great at asking questions, but how are they at answering them? Bloomberg Law is talking with lawyers and other legal industry players at the top of their fields to find out what makes them tick, what challenges they face, and how they do what they do.

Elizabeth Prelogar is an appellate litigator at Cooley, has argued seven Supreme Court cases, and has handled numerous appeals in federal and state courts around the nation. Her practice covers a wide range of civil and criminal matters, including high-stakes constitutional, white collar, and regulatory issues. Prelogar previously served as an assistant to the solicitor general at the U.S. Department of Justice, and also recently worked as a legal adviser on Special Counsel Robert Mueller’s probe into Russian interference in the 2016 U.S. elections.

Bloomberg Law spoke to Washington-based Prelogar about diversifying the Supreme Court bar, learning the art of writing opinions from Justices Ginsburg and Kagan, and commanding the attention of a classroom of eight- and nine-year-olds.

This conversation has been edited for clarity and length.

Bloomberg Law: What sets your firm apart from other Big Law firms?

Elizabeth Prelogar: Cooley has an amazing culture. I know that’s an overused description, but it fits here. Across the firm there’s a commitment to excellence and intense dedication to delivering results for our clients, but those objectives don’t come at the expense of recognizing that people at the firm have identities and passions outside of the practice of law. And there’s a genuine premium placed on collaboration. We’re competitive—we like to win—but we don’t compete against each other. It’s been the perfect culture to try to build a Supreme Court and appellate practice.

BL: What is the biggest challenge currently facing your practice area?

EP: The Supreme Court bar faces significant issues with respect to diversity across all metrics. To give just one example, in the most recent term I was one of only 13 women out of more than 100 advocates who argued in the Supreme Court. There is a lot of hand wringing about this issue at the back end when reviewing the statistics each year. But so much more can be done at the front end, from focusing on early pipeline issues like unequal access to clerkship opportunities, to changing the mindset of mentors who may be reluctant to give up Supreme Court opportunities, to working with clients who have shone a spotlight on this issue generally, but may not specifically think about diversity when hiring for Supreme Court cases.

BL: What is your favorite war story from your career?

EP: After one of my Supreme Court arguments, I volunteered to speak to my son’s elementary school class about the judicial branch. Preparing for that presentation was in some respects more daunting than getting ready for the argument itself, as I tried to think through how to explain Article III, the mechanics of advocacy, and the role of the Supreme Court to a group of 30 eight- and nine-year-olds. I feared a cold bench. I managed to capture their attention by ordering a gavel from Amazon and promising that they could each take turns banging it during the break following my presentation. If only it were that easy to get the Court on my side during argument.

BL: What is one of your favorite memories from clerking for Justices Ginsburg and Kagan?

EP: Both Justice Ginsburg and Justice Kagan are excellent writers, and some of my favorite memories from the clerkships are the moments I spent with them working on opinions. Justice Ginsburg and I would sit together in her office going over draft opinions line by line to discuss changes. Justice Kagan and I would process and wordsmith all aspects of an opinion to try to ensure that every word and thought was right. Having the opportunity to learn about the art and craft of writing from both Justices was one of the highlights of my clerkship experience.

BL: You recently secured a preliminary injunction against a rule in your home state of Idaho that would have banned transgender women from playing on women’s sports teams. You have also been advocating for a transgender inmate’s right to get gender confirmation surgery. How did you become involved in transgender rights?

EP: The work I’ve done on LGBTQ+ equality issues has been some of the most meaningful of my career. I first got involved working on marriage equality before Obergefell, and I’ve been lucky to be part of amazing teams working on transgender rights issues since I joined Cooley. In the sports case, Idaho was the first and only state in the nation to categorically bar women and girls who are transgender from playing school sports. It was also the first and only state to enforce that policy of exclusion by subjecting all women and girl athletes to the threat of an invasive examination to prove their eligibility. The preliminary injunction we obtained means that Idaho can’t enforce that discriminatory law. In the other case you mentioned, our team helped defeat Idaho’s request for a stay from the Supreme Court that would have prevented our client from obtaining medically necessary gender confirmation surgery. Seeing the real-world effect these cases have had on our clients and the community has been incredibly rewarding.

BL: What advice would you give an associate just starting out in their Big Law career?

EP: There is no substitute for hard work—so dig in and get invested in your matters. Learn your cases and your clients inside and out so that you have the whole picture in mind when crafting arguments. Don’t be afraid to think creatively. Understanding precedent and situating your case within it is critical, but there are so many novel legal questions that can benefit from creative advocacy. And be nice. There isn’t a trade off between being an aggressive and successful advocate for your clients’ positions and treating others with respect.

To contact the reporter on this story: Mary Ellen Egan in New York at maryellenegan1@gmail.com

To contact the editor on this story: Rebekah Mintzer in New York at rmintzer@bloomberglaw.com
Chris Opfer in New York at copfer@bloomberglaw.com

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