‘You’re Just Ready’
A case of the jitters, a bleeding ankle and a nearly missed entrance couldn’t keep 7 Texas lawyers from their dates with the nation’s highest court
Published in 2018 Texas Super Lawyers magazine
By Steve Knopper on September 6, 2018
Sometimes you can pick out a Texas attorney at the U.S. Supreme Court by looking down—at the feet.
“I remember going through security and they said, ‘You’re obviously from Texas. I don’t think I’ve ever seen anyone that’s going to argue a case in boots,’” recalls Dallas litigator Brian P. Lauten. And in the case of Corpus Christi’s Bob Hilliard, his boots ended up being more than fashion—they were a sort of protective armor.
Texas attorneys have argued incredibly technical cases in recent years. In Jerry W. Gunn, et al, v. Vernon F. Minton, Austin attorney Jane Webre successfully represented four lawyers in a case involving legal-malpractice claims arising out of a patent infringement suit. And they’ve argued viscerally emotional cases, like Hilliard in Hernández v. Mesa, in which he represented the family of a child who was standing in Mexico when he was shot to death by a U.S. Border Patrol agent—who contended the constitutional restriction on unreasonable force was not applicable since the teen was not in the U.S.
Some have appeared before the high court twice, including Dallas attorney Allyson Ho, whose cases were only three weeks apart. “That was a very intense period,” she says. “I was the only woman in private practice that year that had more than one argument before the court.”
We talked to seven Texas attorneys—including Aaron Streett and Jeff Oldham, Houston attorneys and longtime friends who faced off against each other—about their experiences confronting Justice Ginsburg, the late Scalia and the other seven.
Robert C. Hilliard, Hilliard Martinez Gonzalez in Corpus Christi, Personal Injury—Plaintiff; Hernández v. Mesa, 2017: I was in the gym. I generally don’t take calls while I’m working out. But my phone rang, and it was my wife, and she said, “Hey, the Supreme Court just granted cert in Hernández.” I said, “Wow. OK.”
Jeffrey L. Oldham, Bracewell in Houston; Appellate; Baker Botts LLP v. ASARCO LLC, 2015: I remember sitting in my office, and you see the orders list come out, and you see [your case] on the list. “Shocking” may be too strong of a word, but it’s an interesting moment.
Michael A. Orlando, Meyer Orlando in Houston; Energy & Natural Resources/Transportation; Wilton v. Seven Falls Co., 1995: Back then, I did a whole lot of work for the London insurance market—Lloyd’s and British-based insurance companies. The insureds filed a state court lawsuit in Houston and asserted bad-faith causes of action and breaches of insurance policy. They sort of threw the book at the underwriters, saying, “You owe us $108 million, and we’re also suing for treble damages for denying coverage—and you also owe us millions for defense.” There had been a similar case filed that the Supreme Court had granted certiorari in, a year or two before my case, but that prior case settled, so they didn’t get to decide it. My client said, “Absolutely, take it up to the U.S. Supreme Court if they’ll take the case.”
Jane M.N. Webre, Scott Douglass & McConnico in Austin; Appellate; Gunn v. Minton, 2013: It was a legal malpractice case that started out in state court. Totally not interesting or sexy in any way. It was a jurisdiction question: Does the legal-malpractice claim that arises out of a patent claim belong in state court or federal court? I told you it was not interesting or sexy in any way! They granted the cert petition October 2012 and the argument was in January 2013. Honestly, it was the most exciting thing that ever happened to me in my whole, entire life.
Hilliard: I stopped practicing law and started to become a Supreme Court advocate for about four months. And did probably six preparatory moot courts around the country: Georgetown, a couple out at Stanford. I did some informal ones with very good law professors around the country.
Webre: My prep period, just by circumstance, had to be relatively short. I had one moot here at Texas University law school. The panel members were all friends and law school classmates and law professors I had known for a long time. All of them out of the goodness of their hearts. No one was paid a dime. Well, I did buy them sandwiches. They read all the briefs and did a two-hour pepper-me-with-questions. Be nice to your village! You might need a favor from them.
Oldham: [Aaron Streett] clerked for Chief Justice Rehnquist the year before me. I literally took over his desk. It was kind of full circle for he and I, arguing [Baker Botts v. ASARCO, in which Streett represented his own firm, seeking additional legal fees] in the Supreme Court.
Aaron M. Streett, Baker Botts in Houston; Appellate; Baker Botts LLP v. ASARCO LLC, 2015; Halliburton Co. et al v. Erica P. John Fund, 2014: I don’t think [Oldham and I] spoke at all, except that we did discuss dividing up who could be involved in the Texas moot. Since we were both from Texas, both Supreme Court clerks, I’m sure both of us had the thought, “Let’s get together this group we had both participated in in the past.”
Oldham: We had a gentlemen’s agreement where we divvied up the group of Houston folks.
Orlando: There was $108 million involved, so it meant a lot to the client. I was telling them, “Look, there’s a whole lot to be done here, and it’s going to take me a few months to do everything. Is it OK that I spend huge amounts of your legal dollars to do that?” They said, “We don’t care about that part, that’s a drop in the bucket in comparison to the issues. … You do what you’ve got to do.” So I did. That was the only case I ever handled, and probably ever will handle, where the client tells you, “We don’t care what you spend.”
Brian P. Lauten, Brian Lauten, P.C. in Dallas; Business Litigation; University of Texas Southwestern Medical Center v. Nassar, 2013: I basically spent six months in D.C. I lived the entire time in the George Hotel, by Georgetown Law School. I picked it for two reasons: They had same-day dry cleaning services every day, and it was right near the Supreme Court.
Allyson N. Ho, Gibson, Dunn & Crutcher; Dallas; Appellate; M&G Polymers USA, LLC v. Tackett, 2014; Perez v. Mortgage Bankers Association, 2015: I think Chief Justice Roberts has said there are always three arguments: the one you prepare, the one you give and the one you wish you’d given. But I didn’t have any time, coming out of M&G Polymers USA, LLC v. Tackett, to obsess over it, because I just had to launch right back into preparing for Perez v. Mortgage Bankers Association. I think it was the Monday after Thanksgiving. I had room-service turkey that year.
Lauten: We pored through the opinions of every single Supreme Court judge going back 30 years on anything that could remotely be relevant so we could figure out a way to leverage that fifth vote [for his client, a doctor who claimed his supervisor was biased against his Middle Eastern heritage]. We knew it was going to come down to a 5-4 vote. We thought we had a pretty good shot at Chief Justice Roberts.
THE MORNING OF
Ho: I sort of thought I would have difficulty getting to sleep that night, but I just went to bed really early. … I felt very calm because, [after] all of the hours and days and weeks of preparation, you’re just ready.
Webre: I’m the youngest of nine kids in my family. So a bunch of my siblings and my husband and my kids all came to Washington to watch. We all went the night before to have pizza. … All of a sudden, like 8:30 or 9: “I need to go! I need to go right now!” I got back to the hotel and I got into bed and I had all my notebooks on the bed, spread around. “I just need to look at them for a minute.”
Hilliard: I like to be in the courtroom early and just get a feel for it. There was already a line around the block for this argument. The court was packed. My wife and kids were there.
Webre: It’s really kind of a magisterial thing. I got out of the cab the morning of the argument—there’s the first set of steps, then the long plaza. It was kind of a quiet moment for myself.
Streett: [Opposing attorney David Boies and I] were told before the argument, in the lawyers lounge, to wait for the court official to come back and escort us into the courtroom. We waited and waited, and finally, at 9:55, we decided we should go on in, because we didn’t want to miss our argument. Sure enough, they had forgotten to come back and get us. We were seated at the counsel table about one minute before the court. So a little bit stressful there.
Hilliard: I’m walking up, and they have these beautiful marble columns, but the base is squared. I go around the round column, but I don’t make room for the squared base, so I hit my shin on the squared marble base. My elbows went on my knees and my eyes started watering and I couldn’t breathe. And the escort says, “We’ve got to go.” I said, “Wait! Wait!” I knew I had really injured myself. When I sat down, I immediately just turned off my pain receptors and started focusing. I felt a throb the entire time, but it was, like, just a light knock up in the attic somewhere. Then, when I got in the car after the press conference at the end, as soon as the adrenaline went away, I thought, “Something hurts! Oh, shit, my foot.” When I took my boot off, I saw my sock was covered in blood. And I still have the scar. You’ll say, “What’s that scar?” I’ll say, “That’s when I went to the Supreme Court.”
Lauten: I’ll never forget going through security and each marshal saying, “Mr. Lauten, I want to welcome you to the U.S. Supreme Court.” I remember thinking, “I really don’t want to hear that again,” because then I really was going to start getting nervous.
THE JUSTICES ENTER
Webre: It’s remarkably small and intimate, the courtroom itself. You’re really super-close to everything, and they have those teeny-tiny chairs to cram as many people in as possible, so you really have to be very friendly with all your seatmates.
Hilliard: You do notice that they’re [just] feet away from you. They’re a little elevated, but, you know, I’m 6’6″, and so we were basically close to eye-to-eye.
Webre: If you had skills, you could hawk a loogie onto a justice.
Lauten: I’ll never forget Chief Justice Roberts looking at me, saying, “Mr. Lauten, we’re ready to hear from you.” I was so unbelievably impressed that he said my name exactly correctly, because everybody in every courtroom mispronounces my name.
Lauten: I’ve given dozens and dozens of appellate arguments in front of many different appellate courts, and I’ve always prepared a very detailed, surgical, topical outline. I’ve never read from it, but it’s a road map to make sure I’ve stayed on course. The U.S. Supreme Court is the only court where I’ve ever walked up there with absolutely nothing in my hand, not even a pen. I remember thinking, “I don’t need anything. I’m as prepared as I’m going to be.”
Streett: It was a very hot bench. I think I had 39 questions in 30 minutes.
Oldham: Justice Kagan was [seated] the farthest right, and when she would ask questions, you almost had to turn your whole body to answer. And when Justice Sotomayor was [talking] on the other end, you had to turn the other way.
Hilliard: Justice Ginsburg was pretty firm on her views. When she was asking me a question, she was really just sharing with her fellow brethren what she was thinking and feeling.
Orlando: Justice Ginsburg asked the first question, along the lines of, “If we accept your position, Mr. Orlando, won’t we be clogging up the federal court system with all of these federal insurance declaratory-judgment actions?” Everybody but Justice Thomas asked questions that were similar to Justice Ginsburg’s. The only one who asked a question that led me to believe “he’s at least seeing my side of the argument here” was Justice Scalia. They never stopped asking questions, and I never stopped talking, until the light went red and the clerk ushered me to sit down. It’s like, “Oh my goodness, I don’t have any rebuttal time.”
Streett: [Scalia] asked me a question he thought showed my position was not consistent, that I wasn’t following the logical consequences of my argument. He said, “You wouldn’t agree that attorneys should only get fees when they’re 100 percent successful in the defense of their fee application?” I said, “No, your honor,” and tried to explain. [He said,] “No, I didn’t think so! Ha-ha-ha.” He thought he had trapped me. But we were prepared for that question. It was certainly one where Justice Scalia played his role to a T.
Webre: Justice Ginsburg asked me a question. You really have to pay attention and listen. She has such a soft voice, and she speaks very slowly and [with] really formal syntax. The little voice in my head said, “Hey, Janey, you know that question you’re answering right now? Ruth Bader Ginsburg asked you that question.” And I’m going, “My God, she did!”
Orlando: I knew I lost the case. There was no question in my mind, from the questions they asked me. And I thought, “Well, maybe it won’t be so bad, it’ll be a 6-2 decision.” Because maybe Justice Scalia saw my position, and Clarence Thomas votes with him a lot. … My wife and two young children were with me, my brother-in-law was there, one of the lead clients from London was there, sitting through the argument. We went to lunch afterward. Everybody could see I was holding my head low. I was depressed. My wife was trying to make light of the whole thing and said, “It was kind of humorous. All we could see is your back, because you’re facing the Supreme Court. I was watching you, and—you probably don’t know this—you flex your butt muscles when you’re obviously nervous.” [Laughs.] I thought that was good—just make a little light of the situation. It didn’t help a lot.
Ho: M&G came out first, and I was thrilled on behalf of the client [who was being sued by retired employees over whether they should contribute to their health-care costs]. It had been really, really long-running litigation where they had to labor under this case law in the 6th Circuit, and the Supreme Court essentially agreed with us and wiped away that case law. The result in Mortgage Bankers, even though that was a loss, was not unexpected. Any loss is a disappointment, but it laid the groundwork for future cases.
Oldham: We were here at my office and got the opinion, and immediately called the client and let the client know [we had won] and then tried to read the opinion. It was frenzied.
Streett: I always joke with [Oldham] that he got his revenge for me leaving him too much work [at Rehnquist’s office] when I left. [Streett won his Halliburton case, though.]
Hilliard: When I took this case, there wasn’t one appellate lawyer in the country who would’ve given us a chance. I was at the office and the emails started flying: “Holy shit, we won!” SCOTUS reversed the 5th Circuit and remanded the case back for the Circuit to re-evaluate the qualified immunity question. [Update:] We re-argued to the 5th, and it issued an opinion that it was right the first time. We’ve just applied for cert with SCOTUS again in Hernández II.
Lauten: It was devastating, 5-4. The fifth vote was actually Justice Kennedy. He wrote the opinion and ended up being the swing vote. We did end up settling on remand.
Orlando: The ruling was 8-0. [The clients] didn’t fire me, they didn’t chastise me; they paid the bill, which was just massive. They didn’t ask me to cut any time; they didn’t say, “Oh, God, we didn’t expect this was going to be this high.” They were huge bills, and they didn’t blink at paying them. Ultimately, because there was so much money at stake, the case—the insurance side of it—got put on hold while the underlying case wound its way through the appellate system from the appeal of the $108 million judgment. It ended up in the El Paso Court of Appeals. They cut the damages to a heck of a lot less than the $108 million. In the end, I had very happy clients, because they didn’t have to pay anything on the insurance side. But from an ego standpoint, losing a case before the U.S. Supreme Court has never sat that well with me.
Webre: It was unanimous, and the chief justice wrote the opinion, and it came out four weeks after the argument. It was, at that time, the fastest opinion in, like, three terms. It was very exciting and gratifying, and my husband went out and got the … opinion framed and it hangs in my office.
Orlando: That was fairly early in my career, and it’s helped me believe, as long as I do the prep for whatever I’m working on, you can’t scare me. You can’t! I know how to stand up in front of the chief justice of the U.S. Supreme Court firing a question at me and I’ll be able to handle it.
Best in Major Metro Print Journalism in the Texas Gavel Awards presented by the Texas Bar Association, which annually honors five pieces of journalism that deepen the public understanding of the legal system.
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