Another Supreme Court term, another look at the thrill of victory and the agony of defeat. The justices doled out plenty of both to local lawyers this season.
The biggest winner: Roy Englert of the D.C. office of Mayer, Brown & Platt. He won both of the cases he argued this term, including the huge Americans With Disabilities Act case last week, which narrowed the scope of the landmark anti-discrimination law for people with disabilities.
"We were on American Airlines' side," said Englert, 40. "They argued that the ADA doesn't treat as disabled nearsighted people who want to be pilots."
Meanwhile, others in his firm prevailed in three more cases, bringing Mayer's term tally to five wins and no losses. Attorneys Miriam Nemetz, Jim Oleske, Tom Kiriakos, Jim Schroeder, Ken Geller, Alan Untereiner and Mike Lackey were among those who either did the legwork or oral presentations in these cases.
On the agony side, there was Carter Phillips, a Sidley & Austin partner. Phillips is one of the city's most respected Supreme Court advocates, but the Big Nine roughed him up a bit this term, handing him three losses in the four cases he argued.
"The good news, without rationalizing about it too much, is that the losses were narrow and the win was a big win," Phillips said last week. The victory resolved a leasing rights dispute worth hundreds of millions to his client, oil giant Amoco Corp.
Of course, Supreme Court arguments aren't boxing matches and focusing solely on wins and losses in this sport might be fun, but it's hardly the whole story. Some cases, after all, are nearly hopeless and often a client is not expecting an outright win.
Hearsay urges everyone to keep that in mind as we review one last loss, that of Tom Goldstein, the 28-year-old Boies & Schiller lawyer who made his courtroom debut a few months ago in the hallowed halls of First Street NE and whose pre-argument preparations were chronicled in this space.
Alas, Goldstein lost. Big time. Cunningham v. Hamilton County answered this question: Must lawyers wait for a trial to end before appealing sanctions against them? Goldstein argued "no." The justices countered "yes," all nine of them.
"We lost -- what's a strong adverb? -- decisively," Goldstein said. "In all frankness we weren't surprised, though we were disappointed, particularly by the 9-0 decision.
In hopes of offering consolation, Hearsay directs Goldstein to the wise words of Watergate conspirator G. Gordon Liddy, who, when told he should have hired an attorney talented enough to have kept him out of jail, responded, "I had a great lawyer but a bad case."
Beware of U-Turning Lawyers
Attorney John Dowd of Akin, Gump, Strauss, Hauer & Feld nearly caused a traffic accident last week when he learned that a federal appeals court had overturned the bank fraud conviction of former Arizona governor Fife Symington.
Dowd was Symington's attorney in 1997 when a jury found the former real estate developer guilty of lying on financial statements to lenders. Dowd and his colleagues appealed that ruling on the grounds that the presiding judge had unfairly tossed out an elderly juror who announced during jury deliberations that she was firmly against a guilty verdict. After complaints from fellow jurors, the judge found that Mary Ann Cotey was "either unable or unwilling to deliberate with her colleagues."
But an appeals court concluded that Cotey might have been removed simply because she disagreed with other jurors. Dowd learned the news as he headed home early Tuesday afternoon, feeling a little ill.
"I was on M Street near Key Bridge and my partner called and said, `My God, we got a reversal,'" Dowd recalled. "I immediately pulled a 180-degree turn and jeopardized everyone's life and went back to the office." Once there, he did a lot of hugging.
The celebration might be short-lived. Prosecutors already have said they'll retry the case.
Headline of the Week
"7 Ways to Eliminate Smoking Guns" from the June issue of ACCA Docket, the journal of the American Corporate Counsel Association. This handy guide for in-house corporate attorneys offers hints on how to keep clients out of court and "not turn documents over to silver-tongued opposing counsel."
Eyes Wide Open
Washington lawyer Martin Lobel contacted Hearsay to quibble with a recent item suggesting that federal judge Stanley Sporkin nodded off during a civil trial last year. Lobel, who represented the plaintiff, maintains that Sporkin was attentive throughout the case, in which two businessmen were accused of engineering a sweetheart real estate deal behind a client's back. Sporkin found against both defendants, called their breach of fiduciary duty "egregious" and ordered them to cough up their ill-gotten gains -- more than $700,000 altogether.
"The proof that Sporkin was awake is that when the judge questioned [the defendants] he did a better job questioning them than I did," Lobel said last week. "He clearly knew exactly what was going on the entire proceeding."
Arnold & Porter was named the Pro Bono Law Firm of the Year by the D.C. Bar. The firm worked gratis for land mine victims and death row inmates and in cases involving fair housing, refugee rights, women's rights and employment discrimination. A&P also toiled for disability groups pushing for the installation of warnings for visually impaired Metro riders.
A harmonic convergence of legal talent was on display in the D.C. Federal Court last week. Strolling the halls, observers could peek at David Boies working over the final witness in the case against Microsoft Corp. A few doors down, Brendan Sullivan of Williams & Connolly cross-examined the former mistress of his client, Henry Cisneros, the former housing secretary accused of violating ethics rules. A couple floors away, Ted Wells, the guy who bested independent counsel Donald Smaltz in the Mike Espy trial, defended Franklin Haney, a Tennessee real estate developer who was indicted for illegally funneling money to the Clinton-Gore campaign.
The week's best performance, however, might have come from whippersnapper Michael Lacovara, the Sullivan & Cromwell partner who has been Microsoft's lead attorney in recent months. Looking younger than his 35 years and sporting tailored pinstripes and a perfectly placed breast-pocket hankie, Lacovara occasionally looks more like a groom on his wedding day than a litigator in the middle of the biggest antitrust spat in decades.
But he is focused, smooth, witty and unflappable, and he clearly relishes the klieg lights. Better yet, he has lent a touch of humility to the software giant's legal strategy, which previously projected an off-putting know-it-all air of infallibility. Last week, when Boies challenged the admissibility of certain evidence, Lacovara quickly grabbed a book of rules, read the relevant passages to himself and then backed off.
"Mr. Boies has the better argument," Lacovara said.
The audience actually gasped.
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CAPTION: Roy Englert won both of the cases he argued before the Supreme Court.
CAPTION: John Dowd behind former Arizona governor Fife Symington in 1996.