A new article over at law.com raises an interesting question: If you are a client with a Supreme Court case in a specialized area of law, is it better to hire a Supreme Court specialist or a subject-matter specialist to argue your case? Here’s an excerpt:
Dabney [a patent law specialist] and some others argue that a Supreme Court specialist isn’t quite the answer. “The trade-off is how well people know the Court versus how well they know the subject matter,” says Stanford Law School professor Mark Lemley, one of 24 law professors who filed an amicus curiae brief on behalf of KSR. “In several high-profile cases over the last four years, very well-known oral advocates have blown the answers to really important questions,” he added, though he declined to provide specifics.
The question of whether or not an IP lawyer should argue IP cases before the high court was a dead issue for decades. Then, in its last session, the Supreme Court granted certiorari to four IP cases, more than any year since 1965, when it heard seven. So far, the Supreme Court guys have come out on top: Only one of last year’s cases was argued by a patent litigator, and he lost. Bingham McCutchen IP partner Robert Schroeder represented respondent Swift-Eckrich, Inc., in a patent suit against Unitherm Food Systems, Inc. Oklahoma City business litigator Burck Bailey won that one. The rest were argued by Supreme Court specialists.
Dabney claims to be the best of both worlds. Over the last 15 years he has made himself an expert on Supreme Court precedent in patent law dating back to the mid-nineteenth century. And as he says, with typical bombast: “It’s hard for me to imagine there is someone who could be more effective than me.”
So which is better — subject area specialist or Supreme Court specialist? In my view, the answer is that it depends. If the subject area specialist is truly a nationally-known expert in the field, then that may be helpful. That reputation can bring added credibility. On the other hand, it’s possible to know too much about a subject area. For example, Dabney’s knowledge of Supreme Court precedent in patent law “dating back to the mid-nineteenth century” may be counter-productive; the Justices won’t know much about it and aren’t bound by it, so their eyes will probably glaze over if he focuses on it too much. A generalist can make sure that the Justices don’t miss the forest for the trees. Of course, the downside to a generalist is that he can miss the forest altogether.
Perhaps the one clear rule in this area is this: If you’re going to argue a Supreme Court case, do not boast to a reporter that “[i]t’s hard for me to imagine there is someone who could be more effective than me.” This kind of attitude only reflects poorly on the lawyer, and that can’t help the client.
Thanks to Howard for the link.