Supreme Court veteran Kannon Shanmugam has practiced at the high court for nearly 20 years and hasn’t seen competition in the Supreme Court bar as high as it is now.
Earlier this year Shanmugam nevertheless joined a growing number of firms setting up new Supreme Court practices, making the jump from litigation powerhouse Williams & Connolly to launch Paul, Weiss, Rifkind, Wharton & Garrison’s new practice.
The prestige of Supreme Court work can be a tool to enhance a firm’s brand—both for attracting new clients and new talent, too, said Robert Hochman, whose firm Sidley Austin was one of the first to set up a dedicated high court shop in the 1980s.
The latest firm to do so is Chicago-based McDermott, which lured SCOTUS duo Paul Hughes and Michael Kimberly from a longtime player in the Supreme Court business, Mayer Brown.
But the number of cases the Supreme Court agrees to hear has hit historical lows in recent terms, from upwards of 150 in the 1980s to just around 70 in recent terms.
The level of competition between law firms to get high court cases makes it “increasingly difficult to represent clients in Supreme Court matters in a way that makes economic sense,” Shanmugam said.
Simply chasing after Supreme Court arguments isn’t a great way to build a practice, he added. In order to get the full benefit of a Supreme Court practice, firms must build a broader appellate practice that focuses on a steady stream of matters in the lower courts, he said.
“Focusing only on the Supreme Court is fool’s gold,” Shanmugam said.
Steeper Competition
When Shanmugam began practicing at the high court 20 years ago, there were four or five firms that really held themselves out as having Supreme Court practices.
Now virtually every elite Big Law firm has Supreme Court litigators who are aggressively pursuing cases as soon as they’re decided by appeals courts, he said.
Over this past term, Big Law attorneys represented parties in 43 out of 71, or 61%, Supreme Court cases, a Bloomberg Law analysis found. If you expand that to include amicus filings, Big Law lawyers were involved in 61 out of 71, or 86% of the court’s cases.
But even though Big Law is getting a bigger piece of the pie, that pie has gotten much smaller. And Supreme Court work alone just isn’t going to pay the bills—at least not at large law firms.
The economics of a Supreme Court practice aren’t as lucrative as compared to the other work lawyers at Big Law firms do, said Supreme Court veteran Thomas Goldstein.
Lawyers are not going to be able to bill out as many hours to clients as they would, for example, at trial, Goldstein said.
There are no depositions or document review in Supreme Court work, as those revenue streams are eliminated as cases work their way up the judicial system, Goldstein said.
He’s worked on one Supreme Court petition that approached $1 million in attorneys’ fees, but cases with prices that high are few and far between.
In contrast, a large law firm’s fees for a trial can frequently exceed that price tag, Goldstein said.
Focusing on appeals generally can help give lawyers the steady stream of work—and income—they need to run successful Supreme Court practices at firms, Shanmugam said.
While trials and appeals are the bread and butter of any litigation practice, firms generally have far fewer active Supreme Court cases.
A Supreme Court practice integrated with the rest of the firm can boost other client services and get lawyers involved earlier in the litigation process—and at lower courts.
Hughes said that over the long run his work is fairly evenly split among the three levels of federal courts: district courts, intermediate circuit courts, and the Supreme Court.
Sidley’s Hochman said appellate lawyers are often asked to identify appellate issues that might need preservation during the trial, and even to argue dispositive motions.
Getting involved early in litigation is a way for firms to tell clients that they’ll be there with their clients to see the case to the very end.
A Supreme Court practice is a “natural complement” to other litigation work at the firm, Hughes said.
But money aside, there are less quantifiable but extremely valuable reasons for a Big Law firm to have a Supreme Court practice.
“A name-brand appellate practice is prestigious in itself, but a serious SCOTUS practice is that, cubed,” said Bruce MacEwan, president of Adam Smith, Esq., a legal industry consulting group. “It doesn’t get more high-prestige than that.”
Firms compete not only for clients but for talent, too, Goldstein said. A Supreme Court practice can be a “differentiator” not only for clients but in recruiting talent to the firm, he added.
Not Just for Big Law
But it’s not just big law firms that are competing for Supreme Court business.
More lawyers are applying diverse business models to Supreme Court practice, Goldstein said—from boutique firms to solo practices. His firm Goldstein & Russell, P.C. was one of the first boutique firms to test out the Supreme Court waters.
Other boutiques that have robust Supreme Court practices in Cooper & Kirk and Gupta Wessler.
One new solo practitioner, Daniel Geyser, has been especially successful at nabbing high court cases. He was one of just a handful of private attorneys that got three or more cases granted during the Supreme Court’s 2017 term, according to Adam Feldman of Empirical SCOTUS.
A small practice can’t always replicate the best work of major firms in all areas, Geyser said. “If you’re doing complex litigation, for example, you often need a large team to handle all the moving parts,” he added.
But in some ways, Supreme Court litigation is perfect for smaller firms, Goldstein said.
The work is challenging and high impact, but doesn’t require a lot of overhead costs, he said.
It’s often a matter “of becoming immersed in the material,” Geyser said—something that’s “ideally suited for small teams or individuals.”
And smaller firms also have an advantage because bigger firms more often have clients that could create conflicts of interest with other clients, Goldstein said.
‘Making the Sausage’
Roberta Kaplan said creating “a distinct, walled-off practice group specifically and solely designed” for appellate work isn’t always necessary.
Many firms, including hers—Kaplan Hecker & Fink—"maintain a robust Supreme Court and appellate practice as part of our general litigation practice,” she said.
“We believe that the best appellate advocates are those who have had experience ‘making the sausage’ at the trial court level and likewise, that the best trial lawyers are those who fully appreciate and take into account the appellate issues that lie ahead,” Kaplan said.
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