To say Jeff Lamken has had an eventful year would be a gross understatement. A year ago, the veteran appellate litigator left his post as head of Baker Botts’ Supreme Court and Appellate Practice in Washington, D.C., to start a boutique firm with fellow big-firm defector Steven Molo, a prominent white-collar trial and appellate lawyer and partner at Shearman & Sterling in New York.
During his first year as a small-firm attorney at MoloLamken, he briefed and argued three high-profile cases before the Supreme Court— including defending the creation and constitutionality of the Public Company Accounting Oversight Board under the Sarbanes-Oxley Act.
He also has managed to keep court among an eager bevy of legal reporters clamoring for insights to the seemingly fashionable trend among big firm partners defecting to start their own practice. A year after forming his own boutique practice, Lamken is lauded by the National Law Journal as one of 20 “visionaries” that have enhanced the business and practice of law.
Lawdragon: It’s a year now since you left big firm practice and started your own boutique. How has it been and what were the biggest adjustments for you?
Jeff Lamken: It has been phenomenal. When you leave a well-managed firm with a huge infrastructure, you learn to appreciate that. But at the same time the advantage of being able to manage your own firm and creating an infrastructure that you think works best for you and for your client and doing things your way is pretty exciting.
LD: Any surprises?
JL: I kind of feel that after years of being in a very well-managed firm, I’ve been trained well to deal with any surprises that come my way, so there hasn’t been that many surprises. Except, one time, when I found myself lying on my back trying to fix the office Xerox machine, I sure was surprised. But hopefully there won’t be anymore of those.
LD: Can you talk about upcoming cases you’re working on, and do you expect to appear before the Supreme Court in the next term?
JL: Unfortunately, I can’t really discuss my cases in detail without client approval, but I am working on a couple of petitions that we’re hoping the court will take. No certainty they will, of course. The cert process is so notoriously unpredictable and the most mysterious process from the advocate perspective. You are always left wondering why some cases were taken and yours were not. So to answer your question, whether or not I expect to appear before the court next year, I certainly have as much a chance as any Supreme Court lawyer with a pending petition.
LD: What’s the most exciting part of your job?
JL: To handle any Supreme Court case is an extraordinarily high mark of every lawyer’s legal career, and to be able to do that for a living is just a fabulous thing. Every case is unique, and you just have fabulous clients who are extremely knowledgeable about their cases. They help you learn and develop your own knowledge and expertise in each legal issue before you. I also deal with a lot of different counsels and phenomenal lawyers writing amici who have been around the block and are experts in their fields. It’s just the pinnacle of law practice.
LD: How did you end up in appellate advocacy?
JL: It is an example of the invisible hand at work. I didn’t decide to do appellate work, but I came out of law school and went to clerk for Justice Sandra Day O’Connor and just fell in love with that practice. I went back to private practice and then ended up in the solicitor general’s office where I got a chance to argue a lot of cases before the court. So it’s something I just ended up practicing and loving enormously.
LD: Has anything changed in the practice since you started doing it?
JL: It is one of the more stable areas of practice. Trial lawyers would tell you how there have been dramatic changes in technology in the courtroom, electronic filing and e-discovery, but for the appellate world, except for page limits and word limits, the emphasis on the values of clean expression of writing and persuasiveness is still the same.
We haven’t gone into huge technological changes, and I’m more surprised by the consistency than any changes that have occurred. I expect in the future we’ll have e-briefs, as a new generation of judges and clerks become more oriented with the Internet and other new media. It would be really interesting to see whether or not video testimony would be embedded in briefs. I think it is just a matter of time before the appellate briefs move away from words to images of witnesses embedded in briefs. My guess is that it will be 10 years or more before we see that.
LD: How about a television camera in the courtroom?
JL: That’s one thing I’m hoping would not happen. I think it is a very intellectual enterprise and adding a camera to the proceedings will inevitably change how each person is going to judge or advocate. It will likely be a detriment to the process. When you introduce cameras, you will have another audience you would have to address and I think that will dilute the conversation.
LD: How would you describe the upcoming Supreme Court docket?
JL: It seems to be the ever-shrinking docket. It appears that a smaller and smaller number of cases each year are being taken. When I was a clerk, it was around 120 to 125 a year, and now it's down to about 70 cases a year. Whether that’s good or bad, I don’t know.
On the one hand, as a Supreme Court advocate you sort of think, “Shouldn’t they be they taking more cases? Shouldn’t they be correcting more circuit conflicts to get uniformity?” On the other hand, this is a court where what they say is the law of the land and very often there’s only one court that can consider constitutional decisions made by Congress, so maybe they’ll just pick constitutional cases and that’s it. Perhaps given the smaller docket they can just focus on those issues.
You want them to address the inefficiencies of the lower courts because people should not get a different brand of justice in California than you get in New York, for example. But maybe it’s better for us to sit back and let the lower courts hash it out for a while longer so we get better perspective or viewpoint. The docket is smaller; whether it’s better or not, it’s really hard to tell.
LD: What should we anticipate in the coming term? Do you see any trend?
JL: It’s hard to say. Sometimes these things go in trends. There was this period when the Supreme Court was seeing a lot of patent cases, then there was a wave of business-oriented cases, and then there was a wave of white-collar criminal cases. The overall docket is always substantial. They are certainly attuned to the importance of decisions that concern American businesses but they are also quite attuned to cases that involve criminal defendants and the impact of those cases on prosecutors. Sometimes they do seem to pick an issue du jour or topic du jour.
LD: Are there cases you’re watching in particular?
JL: There are a number of petitions that I’m certainly watching. Certainly the Walmart petition [in Walmart Stores Inc. v. Dukes] that I should disclose I filed an amicus brief in support of certiorari. I think class actions are something that the court might have on its radar. There’s just a number of interesting issues, both constitutional and statutory issues, that have come up.
LD: Any more insights you would like to share on law firm practice and the legal market in general?
JL: At this point, I think agility is key for law firms and for the practice of law in general. We are all reacting to both the needs of the clients and that of the courts. The clients are closely evaluating the cost and performance of their counsels, and at the same time, the courts are asking questions and then trying to get the right answers in incredible detail that requires using new technology and an incredible amount of resources. You really have to be agile and creative in responding to all these needs.
LD: What do you do for fun?
JL: I have a three-year-old and a seven-year-old and a wife, so those moments that I am not working I am devoting myself to them.