June 19, 2018 Articles

Hall v. Hall or David v. Goliath?: Winning in the Supreme Court

Consolidation of multiple cases does not extinguish the cases' individual identities or merge them into a single case.

By Steven Finell – June 19, 2018

With Supreme Court practice dominated by a small number of High Court specialists, a victory by a lawyer arguing his or her first case in the Court is noteworthy. When a newcomer persuades the Court to grant certiorari in a civil action, and then persuades all nine justices to join in a single opinion that reverses the appeals court’s judgment, that is remarkable. When the newcomer is a solo practitioner from the Virgin Islands who faces off against one of the Court’s inner circle, a former acting solicitor general, and prevails through exemplary advocacy, that is a story that all appellate lawyers should hear.

That is the story of Hall v. Hall, 138 S. Ct. 1118 (2018), in which Andrew C. Simpson persuaded a unanimous Supreme Court to resolve an important question of federal appellate jurisdiction, one that had roiled the federal courts of appeals for decades: When a district court has consolidated civil actions under Fed. R. Civ. P. 42(a), is a final judgment in one of the actions appealable of right under 28 U.S.C. § 1291? Simpson then persuaded all nine justices that the answer is yes.

But this story doesn’t just start at the Supreme Court. The issue developed over 45 years, brewing in the circuit courts. This article traces the development of that jurisdictional issue—a history that is both interesting in its own right, and useful to understanding Simpson’s advocacy and arguments in the Supreme Court.

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