The following is an excerpt from Practice Perspectives: Vault’s Guide to Legal Practice Areas.
Boris Bershteyn, Partner—Complex Litigation and Trials
Boris Bershteyn litigates complex matters before appellate courts (including the U.S. Supreme Court) and trial courts, with an emphasis on antitrust, commercial, and administrative law matters. He also advises clients on regulatory advocacy and enforcement actions by government agencies. In addition to arguing multiple appeals, Boris has represented amici in recent high-profile Supreme Court cases, including on such issues as marriage equality, reproductive rights, and interpretation of the Affordable Care Act. Before rejoining Skadden in 2013, Boris served in a number of senior legal and regulatory positions in the Obama administration, including as special assistant to the President and associate White House counsel, general counsel of the Office of Management and Budget, and acting administrator of the Office of Information and Regulatory Affairs. Earlier in his career, Boris served as a law clerk to Justice David H. Souter on the U.S. Supreme Court and Judge José A. Cabranes on the U.S. Court of Appeals for the Second Circuit. Boris is a graduate of Stanford University and Yale Law School.
Please provide an overview of what, substantively, your practice area entails.
My appellate practice entails representing clients in federal and state appellate courts—typically in antitrust, commercial, and enforcement matters. Some of the cases I have handled at the trial-court level. Others are cases my Skadden colleagues handled at the trial-court level but decided to seek out a more specialized perspective when the case reached an appellate stage. Occasionally, I work with clients on developing a novel legal argument (one grounded in constitutional law, for example) that we are framing for appellate courts even before any litigation begins. I also frequently represent amici—third-party “friends” of the court—in cases of high commercial or public interest.
What types of clients do you represent?
Perhaps because I am based in New York, many of my clients are financial institutions. This has allowed me to develop expertise in financial markets, especially from an antitrust and competition perspective. But I also represent a number of nonfinancial companies, such as a cosmetics maker or a chicken processor. In my amicus work, clients are sometimes commercial (such as Silicon Valley companies in an immigration policy case or exchanges in a commodity manipulation case) but often are public interest organizations (for example, the Carter Center or the American Public Health Association) or scholars.
What types of deals and/or cases do you work on?
These days, the majority of my cases (at both appellate and trial level) involve antitrust and competition. For example, I spend a lot of time on litigation concerning alleged collusion or manipulation in currency exchange markets or markets for energy products. I also am involved in a number of antitrust cases related to payment systems, credit cards, ATMs, and so on—and the operation of payment networks like Visa and MasterCard.
Outside the antitrust area, I work on a wide variety of very different matters. For example, we were involved in identifying some of the constitutional problems with the way federal agencies use administrative law judges to resolve disputes, and cases that pursued our theories are now making their way to the appellate courts. I also am involved in a pending appeal of a securities class action that asks important questions about the extraterritorial reach of our securities laws. On occasion, I consult on a tax-related appeal.
How did you decide to practice in your area?
I joined Skadden after clerkships on the Second Circuit and on the U.S. Supreme Court, so devoting a substantial portion of my time to appellate matters was a natural extension of those experiences.
What is a typical day or week like in your practice area?
I spend significant time every week working with Skadden’s very talented associates on developing case strategy and editing briefs. Because many of my cases allege collusive or cartel behavior and involve many defendants, I also spend a lot of time on the phone coordinating strategy with other law firms. I appear in court every week or two. When I am heavily involved in a trial-level case, I devote significant time to defending (or taking) depositions and working with economic experts.
I also spend a great deal of time on associate hiring. In my opinion, attracting talented and team-oriented associates to Skadden is the most critical ingredient of our success. So I try to devote a lot of time to meeting and interviewing candidates.
What is the best thing about your practice area?
I genuinely enjoy legal writing, and that is certainly the key part of any appellate practice. I also enjoy learning new things constantly, so it helps to be involved in a rich variety of cases. Because I focus on appellate matters, but continue to spend a lot of time on trial work, I also get to exercise a range of legal muscles—strategy, depositions, negotiation.
What is the most challenging aspect of your practice area?
One of the best things about my practice—variety—is also often the greatest challenge. This makes the learning curve perpetually steep.
What training, classes, experience, or skills development would you recommend to someone hoping to enter your practice area?
Clerkships are a terrific training ground for a potential appellate lawyer, and I highly recommend them. Also, in my experience, the best way to grow as a writer is to do a lot of quality reading.
What misconceptions exist about your practice area? What do you wish you had known before joining your practice area?
The greatest misconception is that appellate work is academic—concerned with abstract principles and detached from practical considerations. I find real-world judgment, practical negotiation skills, and emotional intelligence to be as important in an appellate practice as in any other.
What is unique about your practice area at your firm?
When I came to Skadden, we had a defined appellate practice group, albeit a smaller and less formal one than in many other firms. If anything, we have moved further away from formality. This means that any litigation or antitrust associate who is interested in collaborating with me on an appellate project can have an opportunity to do so. Those who come to enjoy that practice can work with me on developing an appellate specialty.
What activities do you enjoy when you are not in the office, and how do you make time for them?
I wish I could tell you about an exotic hobby, but I’d have to invent one. The truth is that I have two young children, who have nearly complete control of my calendar away from work. When I have time for anything else (typically, during the children’s naps and sleepovers), I spend it reading or exercising.