Want to get your case to the Supreme Court? New study tells you which lawyers to hire.

January 22, 2016

(Reuters) – Past performance, as they tell us in mutual fund advertisements, does not guarantee future results. But a new study of 93,000 certiorari petitions filed at the U.S. Supreme Court between the court’s 2001 and 2015 terms is more evidence that a small group of Supreme Court practitioners enjoy outsized success in persuading the justices to accept cases from their clients.

The academic study, by a political science PhD candidate (who is also a lawyer) and a law student at the University of Southern California, reaches conclusions similar to those in “The Echo Chamber,” a Pulitzer-finalist 2014 report by my brilliant Reuters colleague Joan Biskupic and others. The Echo Chamber explained how 66 lawyers in private practice, most working for businesses, dominate the Supreme Court’s docket. The new paper, “Finding Certainty in Cert,” provides handy statistics on individual lawyers, kind of like baseball cards for the Supreme Court bar.

The lawyers with the highest cert grant rate in the entire 14-year span were Jeffrey Fisher of the Stanford Law School’s Supreme Court Litigation Clinic (29.1 percent); Seth Waxman of Wilmer Cutler Pickering Hale & Dorr (26.4 percent) and Andrew Pincus of Mayer Brown (25.9 percent). Close behind them were lawyers whose names will also be very familiar to Supreme Court watchers: Paul Clement of Bancroft, Theodore Olson of Gibson Dunn & Crutcher and David Frederick of Kellogg Huber Hansen Todd Evans & Figel.

The rest of the list of the most successful cert seekers, according to the paper, is University of Washington law professor Eric Schnapper, Thomas Goldstein of Goldstein & Russell, Charles Rothfeld of Mayer Brown, Carter Phillips of Sidley Austin and Christopher Landau of Kirkland & Ellis.

Carter Phillips filed by far the most cert petitions of any lawyer in private practice, with 117. (Goldstein of Goldstein & Russell is second in that category with 78.) Cert petitions by Clement and Phillips attracted the most amicus support, which, as study authors Adam Feldman and Alexander Kappner point out, is often an indicator of a case’s significance. Not surprisingly, according to the paper, all of the lawyers on their list of cert petitioners with heavy amicus backing are elite private practitioners. In addition to Clement and Phillips, they include Gibson Dunn’s Olson, Wilmer’s Waxman, Gregory Garre of Latham & Watkins, Neal Katyal of Hogan Lovells and Walter Dellinger of O’Melveny & Myers.

The study also tabulated cases in which private lawyers opposed petitions for certiorari. When the authors factored out two lawyers who typically represent state entities, they found Kirkland’s Landau to be the most successful at fending off Supreme Court review, defeating cert petitions in nearly 95 percent of the 18 cases in which he filed an opposition brief. Miguel Estrada of Gibson Dunn defeated cert in about 91 percent of his 21 cases for respondents; Rothfeld represented 15 respondents and defeated cert for 80 percent of them.

The paper’s table on lawyers’ rates of success in cert petitions included only practitioners who had filed at least 25 petitions. To find rising stars, the authors looked in addition at frequent filers in the last four Supreme Court terms. That analysis spotlighted John Elwood of Vinson & Elkins, who won cert grants in three of the six petitions he filed between 2012 and 2015; and Kannon Shanmugam of Williams & Connolly, who won Supreme Court review in four of the 11 cases in which he filed a cert petition in that time frame.

There’s lots more in the study, including an analysis of which law firms, as opposed to individual lawyers, have enjoyed the most success in obtaining and defeating certiorari. (Hint: Goldstein & Russell is small but mighty.) You can also find out which companies have filed the most petitions for cert since 2001, and which have managed to win Supreme Court review.

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