The following is an excerpt from Practice Perspectives: Vault’s Guide to Legal Practice Areas.
Ishan Bhabha, Partner—Supreme Court and Appellate Practice
Ishan is a partner in Jenner & Block’s litigation department and a member of its Appellate and Supreme Court practice group. Since joining the firm in 2012, his work has focused on complex issues of regulatory, constitutional, international, and commercial law. Ishan’s work has spanned a wide variety of substantive areas of law including energy, aviation and aerospace, education, media, communications, copyright, criminal, and banking. He has tried cases both in federal court and arbitration and has represented clients in all stages of litigation, from the filing of an initial complaint through the appeal of a verdict. Ishan has a particular focus on appellate litigation and has presented arguments in the U.S. Supreme Court and numerous courts of appeals.
Before joining the firm, he clerked for U.S. Supreme Court Justice Anthony M. Kennedy and Chief Judge Merrick Garland of the U.S. Court of Appeals for the DC Circuit. Ishan has also worked in the criminal appellate section of the U.S. Department of Justice. He graduated, magna cum laude, from Harvard College and, magna cum laude, from Harvard Law School.
Describe your practice area and what it entails.
As an appellate lawyer, my focus generally is on the key legal questions underpinning a case, whether in the Supreme Court, courts of appeals, or at trial. Thus, the primary work I do for my clients is identifying what legal issue a case turns upon and assessing the best arguments we have as to why those issues should come out in our favor. Sometimes that means counseling a client against a particular course of action in their business because the risks are too great. But my favorite situation is when the client has made a high-stakes business decision that requires us to be creative and aggressive when defending it in court. Doing this successfully requires a combination of creativity, research, and analysis, and really understanding what the client’s strategic goal is and how your case fits within it.
What types of clients do you represent?
I generally represent large corporations or pro bono criminal or civil clients. My corporate clients include United Airlines, Honeywell, Uber, Marriott, the University of Michigan, Prudential, Stripe, FanDuel, and Exelon.
What types of cases/deals do you work on?
My work falls into three categories. First, I work on appeals in the Supreme Court and the federal courts of appeals. For example, in December 2018, I argued a case in the U.S. Supreme Court regarding the rules for expert testimony in social security proceedings. In the last year, I had an appeal in the Sixth Circuit on sexual assault procedures at universities; in the Seventh Circuit about First Amendment implications of online fantasy sports, as well as on a habeas appeal challenging a murder conviction; and in the DC Circuit on the structure and operation of energy markets. Second, I try cases in district courts or through arbitration. Recently, I represented a solar energy producer in a case challenging aspects of California’s rules for renewable energy and a multi-billion-dollar company in a securities arbitration. Third, I counsel clients on a number of regulatory and business issues that they feel require creative legal analysis. For example, I recently advised a large startup on the First Amendment implications of its terms of service, counseled an airline on various issues related to its foreign operations, and helped a university respond to U.S. Department of Education rules for how sexual assault adjudications should be conducted. In addition, clients also call me from time to time to talk about issues that are on their minds and discuss strategies for their businesses. We often talk about ideas that make sense for their businesses within the bounds of the law as it exists today or as we imagine it might evolve.
How did you choose this practice area?
Since law school, I’ve been fascinated by the legal questions underpinning cases and the way in which legal rules inevitably shape what businesses and individuals do every day. While the “facts” and the “law” cannot cleanly be separated—and it’s critical to dig deep into the facts to understand what law applies and how—given my interests and my experience clerking, appellate law seemed like the natural place for me to practice. It’s been a wonderful ride so far, constantly interesting and challenging and putting me in a position where I work shoulder-to-shoulder with my clients, both pro bono and corporate, on the issues that quite literally keep them awake at night. There is no greater pleasure than arguing for your client in court on the issues they care most about and (hopefully!) persuading the judge that your view of the law is correct.
What is a typical day like and/or what are some common tasks you perform?
With the normal caveat that there is no “normal” day, most days have some combination of counseling my clients on whatever is on their plates at the moment, working on a brief or a dispositive motion, getting ready for an upcoming oral argument, and perhaps mooting one of my colleagues for an argument they have. Every day I communicate with a client in one way or another and because all my work is on teams, I’m constantly meeting with my fellow partners and associates. One of my favorite things about Jenner & Block is just how collaborative all of the work is and that I’m always interacting with smart, fun, and kind colleagues.
On my favorite days, of course, I’m arguing in court!
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Legal writing is critical, so joining a journal, moot court competition, clinic, or classes that really expose you to legal writing is very important. Another great way to gain practical experience is to clerk in an appellate court. This helps to gain an idea of how the courts operate. If you don’t like getting up in court and arguing, this probably isn’t the field for you, so it’s worth doing activities in law school that will let you figure out whether this is an experience you enjoy.
What do you like best about your practice area?
Far and away, my favorite part of being a lawyer is going toe-to-toe with really intelligent judges over difficult questions. That gives me the biggest adrenaline rush and also puts me in a position where I can best help my clients—pro bono and corporate—solve some of their most important problems. Appellate law provides you with exactly this experience, while focusing on the core legal issues in a case. I also love the step prior to argument which is brief-writing. It forces you to distill your argument down to its key components, research what law already exists, and honestly confront the strengths and weaknesses of your argument. This process gets you to where you need to be without making unnecessary concessions or stretching cases beyond their actual holdings. It’s a real intellectual challenge and a thrill when the argument comes together as you want, the client is happy, and you win in court.
What misconceptions exist about your practice area?
I think people believe appellate law is highly academic and without any of the “cut and thrust”—and human drama—that makes being a litigator such an exciting career. While it’s true that an appellate argument can often be academic in that you’re talking about the logic, history, and rationale behind the big legal rules that govern a case, often I’m using those same skills to advise clients of significant decisions that are not from a court and might have huge consequences for their businesses. For example, after we won a pro bono habeas appeal in the Seventh Circuit, the state offered my client a plea deal in lieu of us pushing for the full remedy—retrial but with the potential for a bigger sentence—that the court’s order entitled us to. Talking with my client about everything in his head and heart as he tried to decide whether he wanted to pursue a retrial and risk an additional 20 years on his sentence if we lost—but be released immediately if we won—or take the deal and know for sure he’d be out in 7 years, was one of the most difficult and complex discussions I’ve ever had. In a way, it had nothing to do with the intricacies of case law, and yet all the skills I developed as an appellate lawyer—assessing risk, determining what a court might likely say when faced with two hard choices—came into to play as I tried to help him think about what was the best course. For what it’s worth, he took the risk, and the state took the case to the Supreme Court which gave us a favorable ruling. As a result, he’s out of jail 11 years earlier than he otherwise would have been.
What is unique about this practice area at your firm?
We’re a small group, so all our cases are staffed very “flat”—that is, generally just one partner and one associate. I think this is a huge boon for associates because it means they are almost always drafting the brief that will go to the client and eventually the court—not some memo that goes to a more senior associate who turns it into part of a brief, that then goes to a junior partner who pulls together the whole brief, that then goes to the senior partner who argues the case. Our most senior partners work directly with our most junior associates, and as an associate, I always stayed in close touch with the client and even argued a number of cases myself. The other unique aspect of our firm is that the appellate group is closely integrated with the other practice areas within our firm, so we advise on cases throughout the litigation stage, helping our colleagues and the client shape the legal arguments at (or even before) the trial stage so as to best position any eventual appeal.
What is your routine for preparing for oral arguments?
First I re-read the briefs and the key cases we rely on, trying to really understand what the other side takes from them and how those cases fit into the bigger legal area within which the case falls. Second, I’ll do two moot courts or, if the case is in the Supreme Court, perhaps three. Moots are by far the most useful way to prepare for a case because you get to see what strikes people about your case when they haven’t been thinking about it and living it like you have. Third, in the days before the argument, I’ll just practice the answers to what I think are the big questions that the case turns on. Sometimes this has nothing to do with the “law” per se, and may be the question of why your position is “fair” or makes common sense. I’ll practice these answers when I’m walking on the street to pick up lunch, driving home on my scooter, or getting dressed in the morning. It can make for some weird looks from the public and my family alike, but it’s what works for me!