Milbank Lawyer Wins Supreme Court Case After Switching Firms

The night before his first-ever argument at the US Supreme Court Nathaniel Zelinsky was nervously refreshing the court’s docket on his phone.

Donald Trump had reclaimed the White House for a second term the day before and it wasn’t clear the new administration would continue to support Zelinsky’s client: a woman fighting to hold police liable for killing her son during a traffic stop.

“You always want the Solicitor General on your side,” the former Hogan Lovells senior associate said, explaining it would signal that even the federal government felt the appeals court in this case had wrongly ruled the police officer’s use of deadly force was justified.

No notice of a change in the government’s position came.

In court, the Trump administration backed Zelinsky’s argument that the US Court of Appeals for the Fifth Circuit should have analyzed the police officer’s actions by looking at the totality of the circumstances, not just the moment he felt threatened.

The justices agreed with him in a unanimous decision on Thursday.

Unusual Events

Arguing before the Supreme Court is a high-pressure situation even if a lawyer has done it before and there’s no threat the government will withdraw its support. But for Zelinsky, Barnes v. Felix started off more stressful than most: his opening brief was due the day after his wedding.

The 34-year-old Yale Law School alumnus, who set out to be a historian, thought he’d be more stressed than he was by it all. But he said he was backed by a whole team at Hogan Lovells that included former partner Neal Katyal, who’s argued 51 cases before the Supreme Court.

Katyal sat second chair at the argument and helped Zelinsky write a rebuttal on the fly in which he addressed five justices individually and a specific question or concern they each had.

“He’s very good at looking at the justices and saying, ‘Okay, this is the thing that’s motivating that justice,’” Zelinsky said. “So, Neal was passing me notes.”

The duo got close working as as special prosecutors appointed by the Minnesota Attorney General’s Office to assist in its case against the police officers charged in the death of George Floyd. That killing of a Black man by a White police officer in Minneapolis sparked riots and protests nationally over police brutality. Zelinsky’s Supreme Court case was a natural outgrowth of that work.

In a statement, Hogan Lovells Partner Jessica Ellsworth said the firm has a long and cherished tradition of supporting associate arguments, including in the Supreme Court, and Zelinsky’s is another reflection of that commitment.

“The partners and associates in Hogan’s appellate practice spent weeks putting him through his paces as part of many rounds of moot courts,” she said.

Zelinsky did 10 rounds of those mock arguments to be exact. That level of preparation is characteristic of Zelinsky, according to his law school roommate.

“Nathaniel is an incredibly determined person and he prepares relentlessly for everything that he does,” said Alexander Fullman, a Cooley LLP associate, who lived with Zelinsky all three years. ”He’s someone who’s deeply committed to fighting for what he believes in and, accordingly, he has this work ethic that’s unparalleled.”

Move to Milbank

Zelinsky had another life change before the decision came out: the New Haven, Conn. native followed Katyal to Milbank LLP in February to be part of the firm’s new Supreme Court practice.

Less than two months later, Milbank inked a deal with the White House, agreeing to provide free legal services for causes that are priorities of the president to avoid punitive executive orders.

Zelinsky, who’s arguing a case directly challenging Donald Trump’s authority to fire independent agency officials, declined to comment on the firm’s deal. He’s representing Cathy Harris, a member of the Merit Systems Protection Board, who Trump removed in February.

Zelinsky said he’s also still representing Janice Barnes along with attorneys at Hogan Lovells. Her case against the Texas police officer who shot and killed her son Ashtian Barnes now goes back to the lower courts.

Since the justices were only asked to decide what standard judges must use when analyzing whether a police officer’s use of deadly force was justified, “what the ruling from the court gets us is the ability for Janice to go back down and make her case,” Zelinsky said.