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August 31, 2017 Articles

Hot Topics from the Section Annual Conference

A summary of the three programs presented by the Appellate Practice Committee at the 2017 Section of Litigation Annual Conference in San Francisco.

By Melissa Arbus Sherry, Mark Yohalem, and Paul Cox – August 31, 2017

The Appellate Practice Committee presented three programs at the 2017 Section of Litigation Annual Conference in San Francisco in early May. The well-attended programs reflected the breadth of committee members’ expertise and substantive interests. This article summarizes the three programs.

State of the Law on Transgender Rights
For its first program, the committee partnered with the Section of Litigation’s Diversity & Inclusion Committee to present a program on transgender rights in public spaces. The program took place at the Section’s inaugural LGBT Forum, immediately before the Section Annual Conference.

The program featured a panel of national experts and advocates who spoke on recent developments in a hot area of the law: public protections for transgender individuals. The panelists included Scott Wilkens, an appellate litigator at Jenner & Block; Elizabeth Gill, a staff attorney with the ACLU of Northern California; Shannon Price Minter, the legal director of the National Center for Lesbian Rights; and Ilona Turner, the legal director of the Transgender Law Center. The program was moderated by Ghenete Wright Muir, a solo practitioner from South Florida and an active member of the Diversity & Inclusion Committee.

The panelists shared their wealth of experience in litigating cases on behalf of transgender clients. Mr. Minter, who has been working on transgender rights for decades, provided a brief history of the law’s treatment of transgender individuals from the mid-1900s to the present day. Mr. Wilkens and Ms. Gill then shared their recent experiences litigating on behalf of transgender students in the U.S. Supreme Court and in the Fourth Circuit. And Ms. Turner described her recent efforts to promote the rights of a transgender student in the Seventh Circuit.

For the benefit of the audience members, many of whom represent or plan to represent transgender clients, the panelists shared key insights for winning the debate in favor of legal protections for transgender citizens. In particular, the speakers emphasized the importance of educating courts about the medical community’s broad consensus in favor of the treatment of transgender individuals consistent with their gender identity.

The Future of the “New” U.S. Supreme Court
The committee’s second program addressed a critical national issue: the future of the U.S. Supreme Court.

The program featured a panel of veteran Supreme Court advocates: Caitlin Halligan of Gibson Dunn, Willy Jay of Goodwin, and Roman Martinez of Latham & Watkins. Supreme Court journalist Joan Biskupic served as moderator.

With Justice Gorsuch having just joined the Court a month before the program, the panelists discussed what impact he would have on the Court and its jurisprudence, how the oral-argument dynamic would change without Justice Scalia, and whether Chief Justice Roberts “got his Court back” with Justice Gorsuch’s confirmation.

The panelists also addressed a flurry of big questions about the new Supreme Court, including the following:

  • Might Justice Kennedy retire in the near term? If so, how would his retirement affect the Court?
  • How would the Court, with Justice Gorsuch, approach high-profile cases concerning the First Amendment, the Trump administration’s executive order on immigration, and the administrative state?
  • Under the Trump administration, would the solicitor general’s office present more petitions to the Supreme Court—including on hot-button issues like the Second Amendment and union dues?
  • What types of challenges, and under what theories, might progressive groups challenge the Trump administration’s controversial initiatives?

Preparation for Oral Argument
Finally, the committee led a mock oral-argument program in which the panel presided over a 30-minute moot court of Trinity Lutheran Church of Columbia, Inc. v. Pauley, a recent Supreme Court case that involved a range of complex First Amendment issues. Following this, the participants discussed how they prepare for oral argument.

The moot court was argued by two of the country’s most experienced appellate lawyers: Ginger Anders, formerly of the Office of the Solicitor General and now of counsel at Munger, Tolles & Olson; and Ashley Aull, deputy chief of criminal appeals for the Los Angeles U.S. Attorney’s Office. Mark Yohalem, also of Munger Tolles, then led a postmortem.

The program featured three prominent federal judges in California: Judge John Owens from the U.S. Court of Appeals for the Ninth Circuit, Judge Jon Tigar from the U.S. District Court for the Northern District of California, and Judge Michael Fitzgerald of the U.S. District Court for the Central District of California. The judges described the mock argument as some of the best appellate advocacy they had ever seen.

The tips that the participants shared about preparing for oral argument included identifying pinpoint legal or record citations to credential the advocate and reading the critical cases before rereading one’s own brief in order to see the law with the freshest eyes possible. The judges offered their reflections, as well, including (1) the importance of an advocate knowing the appellate record and (2) the credibility that an advocate can build by conceding points that the law, the facts, or both require to be conceded.

Note of Appreciation
One final note: The committee offers its deep thanks to the many participants who gave life to these three programs, and it invites committee members who would like to organize or to participate in these programs to contact the committee’s programming chairs, Melissa Sherry and Mark Yohalem.

Melissa Arbus Sherry is a partner at Latham & Watkins LLP in Washington, D.C. Mark Yohalem is of counsel to Munger, Tolles & Olson LLP in Los Angeles, California. Paul Cox is an associate with Ellis & Winters LLP in Raleigh, North Carolina.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).