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The article below has been republished in full courtesy of Law360, written by Aebra Coe
The 10 law firms that file the largest number of briefs before the U.S. Supreme Court are more likely than firms that file fewer briefs to influence the final language used in high court opinions, according to a new study.Firms that were home to the counsel of record on Supreme Court briefs the largest number of times in the 67 years leading up to 2014 demonstrated greater overlap than less prolific firms between the language in their briefs and the language that was ultimately used in corresponding high court opinions, a metric used to gauge influence by University of Southern California researcher Adam Feldman, who used data analytics tools to amass the results for his Feb. 3 study, “Who Wins in the Supreme Court? An Examination of Attorney and Law Firm Influence.”Average overlap between brief and opinion language for the prolific firms was consistently around 10 percent, a significantly higher amount of overlap than the average for all briefs before the Supreme Court, which was 8.42 percent.“The implication from this figure is that the top firms tend to employ attorneys that perform better than the average Supreme Court attorney, but that there is similar output from all of these top firms,” Feldman wrote in the study.The high-filing and consequently influential firms include Mayer Brown, Sidley Austin LLP, Jones Day, WilmerHale, Gibson Dunn, Covington & Burling LLP, Jenner & Block LLP, Kellogg Huber Hansen Todd Evans & Figel PLLC, Hogan Lovells and O’Melveny & Myers LLP.For the study, Feldman gathered briefs and opinions from all the cases taken up by the Supreme Court between 1946 and 2013 that were orally argued and briefed, then examined the language overlap between each individual brief and corresponding opinion using several language and document analytics computer programs.In addition to overlaps in language, the study examined the briefs' quality of writing using a second analytics tool.It found that the relationship between the top firms’ brief quality and overlap values hinted at the possibility that brief quality plays a more important role for top firms than it does for top attorneys.Among attorneys who authored the most briefs before the Supreme Court during the relevant time period, those who were most influential in terms of overlap value, John Roberts and Carter Phillips, were both below the mean for brief quality.“This indicates that the court focuses on their briefs based on factors such as their credibility, which is not necessarily associated with their writing quality,” Feldman concluded.He added that the increased importance of quality for law firms “makes intuitive sense” because the experienced attorneys’ names are likely familiar to the justices and this familiarity likely comes with preconceptions about the attorneys’ abilities.“Attorneys that draft briefs for top firms are a mix of more and less well-known names and so brief quality may supplement name recognition at the top law firm level,” Feldman said.
This article has been republished in full and is courtesy of Law360. For the latest breaking news and analysis on energy industry legal issues, visit Law360 today.