11 May 2011
by Marcia Coyle
When a residency challenge reared its head early in Rahm Emanuel's candidacy for Chicago mayor, he already had a skilled Supreme Court advocate on his legal team before any appellate court stepped into the fray.
The advocate, Andrew Pincus, partner at Mayer Brown, said that Emanuel's campaign was an example of how appellate skills can be applied before they are actually needed for an appeal. "I wasn't on the papers because I'm not a member of the Illinois bar, but from the beginning, [residency] was going to be a significant legal issue and you can bring appellate skills to bear from the start," he said.
Developing legal arguments when a complaint is filed is part of the triple play action that Pincus has provided in his practice for more than two decades. He also briefs and argues cases in federal and state appellate courts and works on policy issues — many of those litigation related and some not.
While he may have been a behind-the-scenes figure in the Emanuel campaign, he recently was at front and center of the Supreme Court bar by scoring one of this term's biggest business victories — the 5-4 ruling in AT&T Mobility v. Concepcion on April 27.
Proving once again that predicting case outcomes based on oral arguments is a perilous venture, most media accounts of the AT&T arguments portrayed a Court seemingly more sympathetic to the consumers' arguments than to Pincus' client, AT&T. But Justice Antonin Scalia, who was one of Pincus' most skeptical questioners, wrote the majority opinion in favor of AT&T. He said that California contract law, which finds class action waivers in arbitration agreements to be unconscionable, is preempted by the Federal Arbitration Act.
"You never know and I'm very superstitious," said Pincus about Supreme Court outcomes. "You don't want to be overly optimistic. I thought people overplayed in their coverage Justice Scalia's questions and didn't sort of look as much to the flow of the argument."
The arc of Pincus' appellate career was influenced greatly by the late U.S. District Judge Harold Greene, considered by many as the premier trial judge of his era, and for whom Pincus clerked.
"I was there during the AT&T antitrust case," recalled Pincus. "He was a wonderful guy who had a career in public service and told great stories about his job in the Justice Department. He helped to set up the appellate part of the civil rights division and worked on drafting the civil rights laws when Bobby Kennedy was attorney general. Then he was asked by President Johnson to remake the D.C. court system. He worked with Congress and the Justice Department to create the court appellate structure."
After a brief stint at Hughes Hubbard & Reed, Pincus, recalling Judge Greene's stories about the Office of Solicitor General and its work on early challenges to the civil rights laws, decided to seek a job in that office. "I was lucky," he said. "In 1984, I only had been out of law school three years. I was there for four years."
As an assistant to the solicitor general, Pincus had an office next door to another assistant, Charles Rothfeld. The two men became fast friends and later colleagues at Mayer Brown. Today, they also are co-directors of the Yale Law School Supreme Court clinic.
But policy issues also called to Pincus. In 1997, William Daley, a Mayer Brown partner, was tapped by President Clinton to be U.S. secretary of commerce. Daley asked Pincus to join the Department of Commerce as general counsel.
"I went along with Bill on that incredible adventure and ended up doing very little conventional litigation, but working on policy issues like electronic commerce, the electronic signature act, privacy issues, domain names and I was point person on the Digital Millennium Copyright Act," he said. "That was tremendous experience."
When Daley left to run Al Gore's presidential campaign, Pincus left the department and helped the campaign in various ways. "I spent two magical months in Tallahassee working on the Bush v. Gore litigation, which was a very strange experience."
After the election, Pincus became global counsel of Andersen Worldwide S.C. "I got there in the spring and Enron happened in September," he recalled. "I stayed and legally unraveled Arthur Andersen for another year and then went back to Mayer Brown."
Pincus finds two challenges in appellate litigation, both of which he likes equally. "One is really thinking through the legal problem and then looking at the range of arguments you can make," he explained. "It's like a jigsaw puzzle but you're cutting the pieces. How do I arrange them in the most convincing way possible and then how do I express arguments in a way that is as compelling as can be? I've done it for a lot of years but I really do like those exercises."
That is also what he likes about teaching, he added. "With students, they're very smart, but they haven't done this before. I like that — starting at the beginning. The reason I can talk about what I like about appellate advocacy is that teaching it makes you think what you really like about it."
Pincus has argued 22 cases in the Supreme Court — three this term. Besides the AT&T case, he argued and lost in Los Angeles County v. Humphries, and is awaiting decision in DePierre v U.S., a sentencing challenge focusing on the meaning of the term "cocaine base."
"What's challenging about Supreme Court advocacy is the Court wants to get the case right but it is also thinking about this area of law and adjacent areas and wants to come up with an approach that makes sense and is consistent with what it has done in other areas," he explained. "As a litigator, that forces you to think about those things — yes, for your client, but also about the whole picture and not just that we're really right in this case."
Mayer Brown's appellate practice was launched in the mid-1980s by veterans of the Office of Solicitor General with the idea of a practice by and with friends, said Pincus.
"Steve Shapiro, Ken Geller, Kay Oberly, Andy Frey — they were all superstars at the time," he said. "The philosophy was to sort of spread things around even as people developed expertise in different areas, for example, Ken on preemption, Steve on antitrust, Andy on punitive damages. Our view is we have a practice and everybody is good. The client can choose or we will find the right person for the client. It is an incredible treat to be able to practice with your friends for so long."