The following is an excerpt from Practice Perspectives: Vault’s Guide to Legal Practice Areas.
Josh Yount and Michael Kimberly, Partners—Appellate 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 ìseasoned Supreme Court practitionerî (2015), and according to Reuters (2014), he is among ìthe top handful of lawyers in Americaî who ìdominateî the docket of the US 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.”
Please provide an overview of what, substantively, your practice area 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, environmental 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 matters have dealt mostly with class actions, securities law, 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 national 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 decide to practice in your 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 or week like in your practice area?
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 a half-dozen times per year.
What is the best thing 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 is the most challenging aspect of your practice area?
Josh: For me, dealing with difficult and uncooperative opposing counsel is the most frustrating part of the job.
Michael: As with other areas of litigation, the work can be hard and the hours long. While the demands on my time are challenging, however, the people I work with (colleagues and clients alike) are some of the nicest and brightest people I know, which makes the sometimes-long hours easily sustainable. Technology and careful time-management also ease the burden; rather than encroaching on personal time with my family over the weekends, I usually come in early in the morning on weekdays. And the ability to work remotely in the evenings means that I am almost always home for family dinners during the week.
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 misconceptions exist about your practice area? What do you wish you had known before joining 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 your 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 activities do you enjoy when you are not in the office, and how do you make time for them?
Josh: Most of my free time is spent on family pursuits, such as sporting events for the kids, scouting, and occasional vacations. I also try to play basketball once or twice a week. I try to make time by carving it out when briefing schedules are set.
Michael: I have three young boys at home, and most of my free time is spent with them and my wife. My hobbies include photography and golf. Setting aside family time is very important to me; I’m usually the first one in the office, which means I can leave the office in time for dinner each night.