Nothing a lawyer of a certain age likes more than telling “war stories.”
Here’s one from me. I was the lead lawyer in a case and won at the Ninth Circuit. The other side sought en banc review and was immediately rejected. Then sought Supreme Court review, which was granted.
While I wanted to again argue the case, the issue being reviewed was a narrow and technical one, and an attorney who had won a similar case before the Supreme Court offered to do it very cheaply. So I owed it to my clients to step aside.
We then lost 0-9, with Sotomayor writing a unanimous decision.
I could have done it, it couldn’t get any worse than that.
In the end, it didn’t matter. Only a narrow slice of the Ninth Circuit’s decision was reversed. With the rest of it intact, we won before the trial court.
Today I learned by best prospect for another Supreme Court trip was cancelled. The 1986 decision Kelly v Robinson has been aggressively criticized by circuit courts, who suggested it may be bad law. The 9th Circuit called it a “relic of the 80s” like “big hair and NutraSweet”
In 2020, the SC appeared to be interested in revisiting it, but declined because one of the lawyers was a pro se bankrupt attorney coming off a suspended license. In my case, the other side was a competent big SD firm.
What dashed my dream was the other side decided not to defend Kelly at all. I think I would have won in the end, but they had plenty of good cases and arguments they could have cited.
