The following is an excerpt from Practice Perspectives: Vault’s Guide to Legal Practice Areas.
Ian Heath Gershengorn—Partner and Chair,
Appellate and Supreme Court Practice
Ian is chair of the firm’s Appellate and Supreme Court Practice and is one of the nation’s premier US Supreme Court and appellate advocates. Before re-joining the firm in September 2017, he served in the Office of the Solicitor General at the US Department of Justice from 2013 to 2017, first as Principal Deputy Solicitor General and then as Acting Solicitor General of the United States. While there, Ian argued 13 cases at the Supreme Court. He also supervised the government’s briefing in a range of high-profile cases, including those involving the Affordable Care Act, election law, immigration, and same-sex marriage.
From 2009 to 2013, Ian served as the Deputy Assistant Attorney General in charge of the DOJ’s Federal Programs Branch. In that role, he led the district court defense of the Affordable Care Act, personally arguing the principal district court challenges to the constitutionality of the Act. He also supervised the defense of federal agencies, the President, cabinet officers, and other government officials in challenges to major regulatory and policy initiatives. From 1997 to 2009, Ian practiced as an associate and then as a partner at Jenner & Block. He focused on Supreme Court and federal appellate litigation. He began his career at the US Department of Justice, serving as counsel to Deputy Attorney General Jamie S. Gorelick and then as assistant to Attorney General Janet Reno. He graduated from Harvard College and received his law degree from Harvard Law School. After law school, he clerked for Judge Amalya Kearse on the U.S. Court of Appeals for the Second Circuit and for Justice John Paul Stevens of the US Supreme Court.
Please provide an overview of what, substantively, your practice area entails.
I lead the Appellate and Supreme Court practice at Jenner & Block, which has four main areas of focus. First, we represent clients in the US Supreme Court. That is a continuation of my four years of work in the Office of the Solicitor General, where I argued 13 cases at the Court in my role as Principal Deputy Solicitor General and Acting Solicitor General in the Obama Administration. Second, we represent clients in the federal courts of appeals and state appellate courts, on a range of commercial and other issues. Third, we work with our colleagues at Jenner & Block to provide writing, oral advocacy, and analytic support for their district court litigation and their other efforts to help our clients resolve their most challenging and sophisticated problems. Fourth, we represent clients in regulatory and other litigation involving the United States. That may involve challenging or defending government regulations, or working with clients to otherwise resolve disputes with the government acting in its regulatory capacity.
What types of clients do you represent?
I represent and have represented a wide range of clients. Before coming to Jenner & Block, I spent eight years at the Department of Justice during the Obama Administration—the United States was my client. In the short time I have been back at Jenner (since September 2017), I have had a number of fun and interesting clients. I am, for example, currently representing FanDuel, which runs a fantasy sports platform, in a lawsuit brought by college athletes alleging that FanDuel’s use of their names without consent violates the athletes’ right of publicity. I represent Charter Communications in an interesting appeal pending in the Eighth Circuit involving an issue under the Federal Communications Act. I represent the Official Committee of Retired Employees of the Commonwealth of Puerto Rico to defend against a constitutional challenge to the congressional statute that is intended to return Puerto Rico to financial stability. And I have been appointed to help thousands of residents of Houston who lost their houses in Hurricane Harvey in their suits against the United States for just compensation under the Takings Clause. So you can see it is a pretty diverse practice, and I am just getting started!
What types of cases/deals do you work on?
The bulk of my practice is concentrated in two main areas. First, I represent clients in the federal courts of appeals and the Supreme Court. The representation of Charter and of FanDuel described above presents a good example of that. Second, I handle regulatory litigation involving the United States. While at the government, I headed the Federal Programs Branch, which represents the United States in regulatory and constitutional litigation. For example, while at the Justice Department, I argued the principal district court cases challenging the constitutionality of the Affordable Care Act. My plan is to continue that sort of litigation now that I am in private practice. The Puerto Rico litigation described above is a good example. When clients have high-stakes regulatory litigation involving the United States, I want to be there.
How did you decide to practice in your area?
My experiences clerking really opened my eyes to the appellate practice of law and made me realize it was something I wanted to pursue in my career. I had the great fortune to clerk for two amazing judges: Amalya Kearse of the US Court of Appeals for the Second Circuit, and Justice John Paul Stevens on the US Supreme Court. Getting that exposure to appellate litigation and seeing how those two “lawyers’ lawyers” did their work got me really excited to try appellate law. When I first went into private practice in 1997, I joined up with the appellate practice at Jenner & Block, which at that time was headed by the late Bruce Ennis, a legend of the Supreme Court bar. My first case with Bruce was a First Amendment challenge to an anti-gambling statute that prohibited broadcasters from advertising even legal lotteries. I got to help with the briefing; Bruce argued the case in the Supreme Court; we won; and I was hooked!
What is a typical day or week like in your practice area?
There really is no typical day, and that is one of the things I love most about the job. I might be working one day on a case involving the sovereignty of an Indian tribe; the next day on a major preemption case involving the Federal Power Act; the next day on a Trade Secrets appeal; and the next day on a First Amendment challenge to a government regulation that limits corporate speech. One of the great things about appellate law is that it is perfect for those of us who are genuinely curious about the law. We come in, learn a new area, translate a complex business situation so that it can be understood by generalist judges, and then we move on. I love it!
What is the best thing about your practice area?
The best thing about my practice area is oral argument. There is nothing quite like the rush from trying to argue your case before appellate judges who are deeply immersed in the issues. It is said that the best oral arguments are a conversation; that’s true, but it is like conversation as if it were a contact sport. You need to be responsive to the judges and answer their questions, while trying to steer the conversation toward the topics and points that are most important to your case. You need to know the strengths and weaknesses of your case, and you need to understand the other side’s case as well or better than they do. You have to explain why you should win your case, but also understand the implications of your case for other cases and other parts of the law. It is a pretty intimidating and exhilarating experience.
What is the most challenging aspect of your practice area?
The best thing about my practice area is also the most challenging: oral argument. In the days before oral argument, I find it all-consuming. I am thinking about the case while I commute, while working out, and (too often) while trying to sleep. I usually keep a notepad beside my bed in case I wake up in the night with thoughts about the case. (Much of the time the notes look like gibberish the next morning, but sometimes there is actually something useful that I’ve gleaned from my 3:00 am ramblings.) The preparation is intense. I usually do at least two moot courts, where my colleagues spend an hour or more peppering me with the questions they think are the most difficult. I study all of the briefs and cases, trying to organize my arguments and anticipate my opponents. Sometimes travel is involved—in a case involving a First Amendment challenge to an abortion buffer zone, I visited the buffer zone; for a case on the constitutionality of a warrantless breathalyzer, I went to the Park Police station and took a breathalyzer. We really try to leave no stone unturned, and it can be exhausting. But it is essential to achieving excellence as a practitioner.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
The most important skill in my practice area is the ability to take complicated concepts and make them understandable in both writing and oral argument. Good writing is critical, so classes on legal writing and experience on journals at law school are very useful. Clerking for a state or federal judge is also extremely valuable—it allows you to improve your writing, to learn how judges approach their job and to see what persuades them, and to gain exposure to a range of legal issues and approaches to lawyering. Sometimes I think the best training for this aspect of my practice is to try to explain your case to a non-lawyer friend or family member. When you can summarize your case and why you should win without the jargon and legal mumbo-jumbo that we all use too often, then you really know your case.
What misconceptions exist about your practice area? What do you wish you had known before joining your practice area?
One misconception about my practice area is that it is a bit of an “ivory tower” existence, or that the members of the group are afraid to get their hands dirty. That is far from the truth. A successful law firm appellate practice involves not only brief writing and oral argument in the appellate level, but also handling the briefing and argument at trial and other district court proceedings. Here at Jenner & Block we want to be able to bring the analytical and writing skills of our group’s lawyers to all of our clients’ problems. That is so in part because our clients’ important cases are not just (or even primarily) appellate, but also because it is often easier to get to the right result if the proper groundwork is laid at the start of the case.
What is unique about your practice area at your firm, and how has it evolved since you have been at the firm?
Jenner & Block has had a top-notch appellate practice for decades, and our work for corporate clients is on par with the highest levels provided in the industry. But one thing that has always stood out for the firm and has drawn me to Jenner & Block from the beginning is the commitment to pro bono. The firm as a whole is always among the top firms for pro bono commitment, and for the past several years has been ranked by American Lawyer as the number 1 pro bono law firm. The appellate group is fully committed to that spirit. We work on death penalty cases and civil rights cases, on cutting-edge cases involving immigration rights and Indian law, on human trafficking and First Amendment. The commitment to pro bono is truly part of our DNA, both at the appellate practice and at the firm as a whole.