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Tell us about your top U.S. Supreme Court or federal appeals court victory over the past year and how you and your team achieved the win.

For 45 years since passage of the Clean Water Act, parties have not known whether to challenge CWA rules in federal district court or courts of appeals, so they filed in both then litigated over which had jurisdiction, wasting time and money. Statutory language suggests most cases go to district court; but the U.S. advocated for court of appeals jurisdiction and courts agreed. In National Association of Manufacturers v. U.S. Department of Defense the Court granted certiorari over U.S. opposition and unanimously agreed with our clients that their challenge to the “Waters of the United States Rule” belongs in district court, providing a clear litigation path. Our close analysis of statutory language, context, and structure produced a clear jurisdictional rule, replacing decades of costly confusion.

How did your firm approach appellate success over the past year?

Think ahead. In NAM we believed the Court had not resolved the jurisdictional issue because parties who file in both courts are “winners” whatever the outcome. We held NAM, one of 18 clients, out of the court of appeals filing, eliminating that barrier to certiorari.

What practice advice would you give to your younger self?

Carve out the time to research and draft a good brief, put it aside, then carve out more time to self-edit, focusing on readability and clarity. Constructing well-crafted briefs takes time and it is the basis for everything else you will do in practice.

Responses submitted by Timothy Bishop, a partner at Mayer Brown.

Reprinted with permission from the October 26, 2018 edition of The National Law Journal © 2018 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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