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Specialists’ Help At Court Can Come With A Catch

Publication Date: 
October 09, 2010
Source: 
The New York Times
Author: 
Adam Liptak

Humberto Fernandez-Vargas, deported to Mexico, had run out of options. A federal appeals court said he could not return to the United States to live with his American wife and son. And his lawyer did not have the expertise or money to pursue the case further.

Then the cavalry arrived. Leading lawyers from around the country, sensing that the case was one of the rare ones that might reach the Supreme Court, called to offer free help. Mr. Fernandez-Vargas’s immigration lawyer was delighted, and he chose a lawyer from a prominent firm here.

...

A pioneer in this area was Thomas C. Goldstein, now with Akin Gump Strauss Hauer & Feld. A decade ago, he developed a technique to spot the cases most likely to attract the court’s attention — those in which two or more federal appeals courts had decided the same legal issue differently. Then he offered to handle such cases free, cold-calling surprised and often delighted local lawyers. In his first four years, he argued eight cases in the court, winning four.

...

The new specialists have not only prospered but have also compiled an impressive record. During the last six years, they have won much more often than relative amateurs, according to statistics compiled by Jeffrey L. Fisher, a director of the Stanford clinic, for a coming article. (He used essentially the same definition of experts as Professor Lazarus and considered the 292 cases in which one of the parties was an individual who was, or could have been, represented by the clinic. He thus excluded cases involving, say, disputes between two corporations or two states.)

As a general matter, the justices are more likely to reverse than affirm the decisions they review. Professor Fisher explored the gaps between experts and amateurs both when they represented individuals as petitioners — the parties bringing the appeals, and so the likely winners — and when they represented individuals on the other side, known as respondents.

...

“It’s more pointed and more obvious,” said Pamela S. Karlan, who directs the Stanford clinic with Professor Fisher, “because there are so few opportunities and the competition is so fierce.”