The following is an excerpt from Practice Perspectives: Vault’s Guide to Legal Practice Areas.
Joshua Yount and Michael Kimberly, Partners—Litigation
Josh Yount is a partner in Mayer Brown’s Supreme Court and Appellate practice, working out of the firm’s Chicago office. Josh has handled a wide range of matters in the Supreme Court and in federal and state appellate courts throughout the country. He has written numerous articles on appeal-related issues and is a co-author of treatises on federal appellate practice, Seventh Circuit procedures, Illinois appeals, and securities class actions.
Michael Kimberly is a partner in Washington, DC, where he briefs and argues complex appeals and dispositive motions with primary focus on the antitrust laws, environmental law, and constitutional law. He has argued over a dozen appeals in courts throughout the country, including the United States Supreme Court; the Second, Fourth, Sixth, Seventh, Eighth, and Ninth Circuits; and en banc sittings of the Second and Eleventh Circuits. Michael has been described by The Washington Post as a “seasoned Supreme Court practitioner” (2015), and according to Reuters (2014), he is among ”the top handful of lawyers in America” who “dominate” the docket of the U.S. Supreme Court. Michael was recently recognized by Law360 (2016) as a top appellate advocate under 40, with “a years-long track record of effective advocacy before the nation’s highest court.”
Describe your practice area and what it entails.
Josh: My practice focuses on handling appeals in federal and state courts for business clients litigating issues of financial or legal significance. I also help trial litigators shape legal strategies and craft persuasive briefs in lower courts.
Michael: I work predominantly on appeals in the U.S. Supreme Court and U.S. courts of appeals. I also draft and argue motions to dismiss and summary judgment motions in the federal district courts. Substantively, most of my cases involve the antitrust laws, administrative law, or constitutional law. But because appellate litigation is typically focused on legal issues rather than factual ones, there are certain themes that cut across these substantive areas—questions of statutory interpretation, for example.
What types of clients do you represent?
Josh: I principally represent corporate clients, including Whirlpool Corporation and several financial institutions. I also have represented a variety of pro bono clients.
Michael: My client base is diverse. I frequently represent national trade associations like the National Association of Manufactures and American Farm Bureau Federation in administrative rule challenges and large financial institutions in securities and antitrust cases. Beyond that, I represent large companies like Procter & Gamble or Kimberly-Clark and CSX in a range of complex appeals. I also occasionally represent municipal entities. In my pro bono work, I typically represent individuals in civil rights litigation.
What types of deals and/or cases do you work on?
Josh: In recent years, my work has dealt mostly with class actions, retiree benefits, product liability, and bankruptcy-related matters. For instance, I represented a product manufacturer in challenging adverse class certification rulings in related product defect cases before the Supreme Court and then handled an appeal from a favorable trial verdict in one of the cases.
Michael: I often work on appeals involving questions of nat-ional and constitutional significance. I’ve represented clients in cases concerning the constitutionality of the Multistate Tax Compact, the legality of important Clean Water Act regulations, and the reach of personal jurisdiction under the Due Process Clause. In other examples, I’ve briefed and argued ERISA and bankruptcy cases involving statutory questions of broad applicability. Through my pro bono docket, I frequently litigate cases involving the First, Fourth, Fifth, and Sixth Amendments.
How did you choose this practice area?
Josh: In law school, I was always drawn to the opportunity for appellate litigators to shape precedent. Then, as a judicial clerk at the Seventh Circuit, I saw firsthand the importance of effective appellate advocacy. And, at Mayer Brown, I was fortunate enough to land at a place where the appellate practice is strong and highly respected.
Michael: In my experience, appellate litigation draws a particular personality type—one who is prone to thinking about legal issues not only in the case-specific context, but also from a broader perspective. While I always enjoy tackling the finer legal and factual details of any case I’m involved with, I am also drawn to that broader perspective. As a law student, I had the good fortune of joining the Yale Law School Supreme Court Clinic. The experience was a highlight of my law school career, and I knew early on that I wanted to continue that kind of work professionally.
What is a typical day like and/or what are some common tasks you perform?
Josh: Most of my time is spent reading briefs and case law, drafting briefs, and revising briefs. I also spend a fair bit of time advising clients on legal strategy and consulting with associates and fellow partners. When I have an argument, I spend time studying relevant materials and participating in moot courts.
Michael: My practice involves developing and discussing legal strategies with clients and co-counsel; drafting, reviewing, and editing appellate briefs and dispositive trial court motions; and arguing appeals and motions. Over the course of an average week, I spend perhaps one-third of my time meeting and talking with clients and co-counsel. Beyond that, I spend my time researching, writing, and editing briefs. I appear in court perhaps 10 times per year.
What training, classes, experience, or skills development would you recommend to someone hoping to enter your practice area?
Josh: A clerkship for an appellate judge is the best training for appellate work. It allows you to see many examples of effective (and ineffective) appellate advocacy. Civil procedure, federal courts, and constitutional law are probably the only essential law school classes for appellate practice.
Michael: Practice makes perfect. The best way to become a good brief-writer is by simply writing briefs, which means seeking out and grabbing opportunities to write briefs whenever they come along. It’s also important, when possible, to work with partners who are themselves experienced brief writers and appellate advocates—one of the best ways to learn is by seeing how a more experienced advocate improves your drafts.
What do you like best about your practice area?
Josh: I enjoy working with a great group of smart and friendly colleagues to come up with convincing answers to sometimes difficult legal problems.
Michael: There is no greater satisfaction for me personally than positively influencing the development of the law. At bottom, all litigation is about getting the best result for your client; in appellate litigation, the best result means not only winning the particular case at hand, but also influencing the law to make good results more likely in future cases too. The stakes are high, but it’s extremely rewarding work.
What misconceptions exist about your practice area?
Josh: An effective appellate practice is not limited to appeals. Appellate practitioners often do their most valuable work in shaping legal strategies at the trial level.
Michael: The work isn’t all glamorous. In addition to doing the deep thinking and writing, associates working in our appellate practice also have to format the briefs, ensure compliance with sometimes mundane (but important!) rules, review and edit tables, and oversee the production and filing of briefs. It’s a very valuable skill set to develop—being able to shepherd a brief from a substantively final draft to a truly final (and filed) product.
What is unique about this practice area at your firm?
Josh: We feature a deep bench of top-notch appellate advocates. There is no one “star” around whom all the work revolves. We also work hard to make opportunities available to more junior lawyers so that the firm’s next generation of appellate lawyers is ready and able to continue the firm’s long tradition of appellate advocacy.
Michael: As Josh mentions, Mayer Brown does not have a figurehead practice. Last term, our lawyers gave four oral arguments in the Supreme Court—and each argument was given by a different lawyer. Because the work is spread around so well, it means that it’s easier for a broad base of junior lawyers to find appellate opportunities.
What are some typical tasks that a junior lawyer would perform in this practice area?
Josh: We pride ourselves on giving junior lawyers opportunities to shine as brief-writers and oral advocates. In addition to legal research and occasional memo writing, new associates typically get a chance to draft parts of briefs and, if their work is strong, move on to drafting entire briefs. Also, through our pro bono programs, associates can handle all aspects of an appeal as early as their first year at the firm.
Michael: Junior associates in Mayer Brown’s appellate practice have opportunities to play very hands-on roles. As Josh says, they often are asked to help draft briefs right out of the gate. Short of that, substantive memo-writing assignments (whether client memos or research memos) are typical tasks.