December 8, 2014 / 11:03 AM / 3 years ago

Analysing the impact of the Supreme Court bar

NEW YORK (Reuters) - Our reporting team used a wide array of data and computing tools to produce the most comprehensive analysis to date of the U.S. Supreme Court private bar.

The documents

To determine which lawyers succeeded in getting the most cases before the high court, we used data from online legal research service Westlaw [tmsnrt.rs/127jGqJ], a unit of Thomson Reuters. The data contained appeals filed during Supreme Court terms beginning in 2004 through 2012. At the time we began our analysis, it was the most complete data available. The data included about 14,400 petitions for writ of certiorari, formal requests for a Supreme Court hearing.

We focused our research on the influence of private lawyers. As a result, the analysis omitted some 1,300 petitions filed by government lawyers. Also omitted: about 2,800 self-filed paid petitions and tens of thousands of petitions in which petitioners, typically prisoners, file unpaid appeals without a lawyer. (These are rarely taken up by the court.) We also chose not to consider automatic appeals – jurisdictional statements guaranteed to be heard under the law – and petitions the court adjudicated without hearing arguments.

This left about 10,300 petitions. We attempted to verify petition lists with top lawyers and firms and to correct errors or omissions. Nevertheless, a small number of petitions may be missing from the analysis.

The petition document is what the Supreme Court refers to when it chooses to grant or deny an appeal. That decision leads to clear data that can be analysed: a “yes” or “no” on each lawyer-filed petition.

The Supreme Court paper trail also includes response briefs and friend-of-the-court, or amicus curiae, briefs. Lawyers say well-written briefs can persuade the justices to accept or reject a case. But because the response and amicus briefs produce no clearly measurable results, we did not include them in our analysis.

Categorizing the petitions

We categorized the petitions by lawyer, firm, type of case and type of petitioner. That work enabled the reporters – two of whom are attorneys – to identify 66 lawyers and 31 law firms most active and successful before the court. When the names of two or more lawyers appeared on a brief, that petition was counted toward each lawyer’s totals. For group counts, however, such as the number of petitions filed by the top lawyers, petitions with multiple lawyers were counted once.

Identifying “Big Business”

One Calais, a Thomson Reuters-owned document-analysis software programme, was used to identify companies that petitioned the court. We defined “Big Business” as companies that were listed in the S&P 1500 Composite Index, the MSCI All Country World Index, the Forbes list of largest private U.S. companies, and Hoover.com listings of foreign companies with more than $1 billion in annual sales.

Exploring the petitions

We used a machine-learning method known as latent Dirichlet allocation to identify the topics in all 14,400 petitions and to then categorize the briefs. This enabled us to identify which lawyers did which kind of work for which sorts of petitioners. For example, in cases where workers sue their employers, the lawyers most successful getting cases before the court were far more likely to represent the employers rather than the employees. For this work, Reuters was advised by James Cochran [bit.ly/127k4Wf], a statistics professor at the University of Alabama, and Andrew Nystrom, a former Thomson Reuters research engineer with expertise in machine learning.

Identifying top petitioners and firms

Top petitioners were defined as those who filed at least nine petitions from 2004 through 2012 – an average of at least one per year – and had at least three of those petitions granted certiorari. These 66 lawyers are extreme outliers among the 17,000 private lawyers who petitioned the court in those years, and their success rate in getting appeals accepted is four times higher than average. The 31 top firms had to meet our criterion of filing at least 18 petitions – an average of two a year – in the period, making them extreme outliers among the 8,000 firms that filed appeals. In addition, at least 10 percent of a firm’s petitions – and a minimum of three – had to have been granted certiorari, a success rate that is double the average.

Exploring oral arguments

To explore which lawyers dominated the crucial job of making oral arguments before the court, we used the Supreme Court’s official journals, which list every argument. Case numbers, titles and the names of lawyers were taken from the journals to build a database of all arguments from the 1994 through 2013 terms. To identify the winning party in each case, we relied on The Supreme Court Database, archived by Washington University.

Identifying top oral advocates

We defined a top oral advocate as anyone who argued at least five cases during the last decade. Just 34 lawyers qualified. Within this group, an elite group of eight lawyers each argued 15 or more cases in that period.

Some lawyers worked as government attorneys before entering private practice. Any work from their days on a government payroll was excluded from the tally, because the reporting focused on the private bar and paying business. Our counts do include cases in which the government hired a private lawyer for a case.

Occasionally, cases are re-argued before a decision or, in rare cases, are argued on consecutive days. In such cases, a lawyer’s multiple appearances counted as one argument.

Reporting By Janet Roberts. Edited by Blake Morrison.

Our Standards:The Thomson Reuters Trust Principles.
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