Mastering the Art of Persuasion: What Top Appellate Lawyers Do Differently

A well-crafted legal brief can sway a judge—while a poorly written one feels like hacking through a jungle with a machete. What sets elite appellate advocates apart?

“We read hundreds, thousands, thousands of briefs in the course of a year at the Supreme Court, and some are more effective than others. And it’s just a different experience when you pick up a well written brief: you kind of get a little bit swept along with the argument, and you can deal with it more clearly, rather than trying to hack through . . . it’s almost like hacking through a jungle with a machete to try to get to the point.” - Chief Justice John Roberts (Scribes Journal)

This is great advice but the question of how to do this lingers. Studying the writing of elite appellate attorneys like Carter Phillips, Kannon Shanmugam, and Lisa Blatt provides valuable insights into effective appellate advocacy. These lawyers and several others that Chambers & Partners ranks as Star Individuals for appellate law (the highest rank) are known for their exceptional clarity, precision, and ability to craft persuasive legal narratives. Their writing is not only technically sound but also compelling, as they frame legal issues in ways that make their clients’ positions appear both legally correct and persuasive from a policy perspective. They masterfully synthesize precedent, anticipating counterarguments and addressing them before the court even raises them. Their briefs are concise yet impactful, recognizing that judges have limited time and prefer arguments that are clear and direct.

Studying attorneys like Phillips, Shanmugam, and Blatt also reveals how the best advocates anticipate legal evolution. Their cases often signal broader shifts in constitutional or statutory interpretation, making their strategies useful for identifying emerging trends. By analyzing their writing, caseload, and advocacy techniques, appellate litigators can refine their own approach, enhancing their ability to persuade judges, shape legal doctrine, and ultimately improve their success in appellate courts.

The remainder of the article explores the work of those attorneys along with Paul Clement, Seth Waxman, and Donald Verrilli, all of whom previously served as Solicitors General of the United States. Most of the analysis is based on three recent briefs submitted by each attorney.

A Little Bit of Background

Paul Clement

Paul Clement has a distinguished career in appellate litigation. Currently a partner at Clement and Murphy and previously at Kirkland & Ellis, Clement has built a reputation as one of the leading Supreme Court advocates in the U.S. He has argued more than 100 cases before the Supreme Court, covering a wide range of legal issues, from constitutional law to federalism and statutory interpretation. Clement's litigation experience extends to representing both private clients and government entities, and he is known for his strategic thinking, persuasive advocacy, and ability to navigate complex legal questions.

Before entering private practice, Clement served as the Solicitor General of the United States from 2004 to 2008 under President George W. Bush, where he argued on behalf of the U.S. government before the Supreme Court and other courts. Prior to this, he clerked for Justice Antonin Scalia at the U.S. Supreme Court and Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit. Clement's extensive education includes a J.D. from Harvard Law School, and his legal career has been marked by his involvement in high-profile cases, including challenges to federal statutes, and his advocacy for key constitutional principles. Recognized as a top appellate lawyer, Clement is frequently called upon to handle cases that shape the legal landscape, particularly those involving the separation of powers and federal authority.

Kannon Shanmugam

Kannon Shanmugam is a prominent attorney who specializes in appellate litigation and constitutional law. He is a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, where he leads the firm’s Supreme Court and appellate practice. Shanmugam has argued numerous cases before the U.S. Supreme Court, gaining recognition for his skill in handling complex civil, criminal, and regulatory matters. His legal work spans a variety of fields, including technology, financial services, and federal regulations, and he is known for his ability to craft persuasive legal arguments in high-stakes cases.

Lisa Blatt

Lisa Blatt is a highly esteemed appellate litigator with a wealth of experience representing clients in high-stakes cases before the U.S. Supreme Court. She is a partner at Williams & Connolly, where she leads the firm’s appellate practice and is known for her exceptional skill in advocacy. Blatt has argued over 50 cases before the Supreme Court, making her one of the most successful female advocates in the history of the Court. Her cases span a wide range of issues, including constitutional law, regulatory matters, and commercial litigation, and she is known for her ability to navigate the complexities of federal law with precision and clarity.

Seth Waxman

Seth P. Waxman is a prominent and highly respected appellate lawyer who has argued over 80 cases before the U.S. Supreme Court, making him one of the most experienced advocates in the country. He is a partner at WilmerHale, where he co-chairs the firm's appellate and Supreme Court litigation practice. Waxman has represented clients in a wide variety of complex legal matters, ranging from constitutional issues and regulatory disputes to commercial litigation. His exceptional legal acumen and skill in presenting complex arguments before the Court have earned him a reputation as one of the nation’s top litigators.

Carter Phillips

Carter G. Phillips is a highly regarded appellate litigator and partner at Sidley Austin, where he chairs the firm’s Supreme Court and appellate practice. With decades of experience, Phillips is one of the most accomplished Supreme Court advocates in the United States, having argued over 85 cases before the U.S. Supreme Court. His practice covers a wide range of legal issues, including constitutional law, regulatory matters, antitrust, and business disputes.

Donald Verrilli

Donald B. Verrilli Jr. is a distinguished attorney who has had a profound impact on the legal landscape, especially in the areas of constitutional law, appellate advocacy, and administrative law. He is a partner at Munger, Tolles & Olson LLP, where he leads the firm’s Supreme Court and appellate practice. Verrilli is particularly renowned for his tenure as the Solicitor General of the United States from 2011 to 2016, where he argued numerous high-profile cases before the U.S. Supreme Court and played a key role in shaping the government's legal strategy.

Similarities in backgrounds

1. Solicitor General Experience: Several of these attorneys served as Solicitor General of the United States (Paul Clement, Seth Waxman, and Donald Verrilli), a position that involved representing the government before the Supreme Court. This experience has contributed to their exceptional appellate skills and strategic thinking.

2. Clerkships: All of the attorneys have served as law clerks for prominent judges or justices, many at the U.S. Supreme Court (e.g., Paul Clement, Kannon Shanmugam, Lisa Blatt, and others). This experience shaped their legal philosophies and advocacy styles.

3. Elite Legal Education: These attorneys have all attended prestigious law schools. For instance, Paul Clement, Kannon Shanmugam, Seth Waxman, and Donald Verrilli graduated from Harvard Law School, potentially contributing to their deep legal expertise.

Differences

1. Clerkship Experience: While several attorneys clerked for U.S. Supreme Court justices, their clerkships differ in terms of the justices they worked for. For example, Blatt clerked for Justice Ruth Bader Ginsburg, while Shanmugam clerked for Justice Antonin Scalia. These clerkships may have influenced their respective legal approaches.

2. Primary Focus Areas: While all are appellate advocates, their specializations vary. For instance, Carter Phillips focuses heavily on corporate and business disputes in addition to constitutional law, while Seth Waxman has significant expertise in civil rights and criminal law. Lisa Blatt and Kannon Shanmugam have experience in a broad range of cases, but Blatt often handles complex regulatory matters and commercial litigation, while Shanmugam regularly focuses on federalism and constitutional interpretation.

3. Public Service Backgrounds: Verrilli and Clement have held high-level public positions (e.g., Deputy Counsel to the President, Solicitor General), while others, like Blatt and Shanmugam, have a more private-sector background in Supreme Court advocacy and less direct involvement in government roles.

The graph below shows their Supreme Court oral argument counts from oyez.org.

Note: These are briefs where these attorneys were listed as counsel. Although this generally gives them a supervisory role of the brief as well as drafter, in practice it is impossible to tell without more information how much oversight and writing they provided. Some of the analyses focus on one brief while others focus on each attorneys’ three briefs. I used several qualitative analysis tools in R in this post.

Getting Into Style

Shanmugam

Cases / Briefs:

IN RE SERTA SIMMONS BEDDING, LLC: The brief contends that the bankruptcy court's confirmation of Serta Simmons Bedding, LLC's reorganization plan, which favored certain lenders with an indemnity agreement disallowed under the Bankruptcy Code, was erroneous and should be reversed to comply with Sections 502 and 509.

Flores v. NY Football Giants: The brief argues that the district court wrongly refused to compel arbitration for former NFL coach Brian Flores's employment discrimination claims against the NFL and specific teams, misapplying state law and improperly rejecting the enforceability of arbitration provisions in his contracts.

National Assn. of Mutual Insurance Companies v. HUD: The brief challenges HUD's disparate-impact rule as exceeding the Supreme Court's limitations, arguing it forces insurers to consider protected characteristics in underwriting without requiring robust causality, thus allowing claims that undermine state laws restricting insurer discretion.

Linguistic Style

Shanmugam’s writing exhibits a preference for clear, assertive language, often using short, punchy sentences to make arguments feel direct and impactful. He uses repetition strategically to emphasize key points or ideas, reinforcing his arguments throughout the brief. Certain adjectives and adverbs are common in his writing to underscore certainty or importance. The tone is typically assertive and confident, with occasional use of diplomatic phrasing to soften more forceful points. He favors active voice, which conveys a sense of action and clarity in presenting arguments.

Argumentation Style

Shanmugam is skilled at creatively framing legal issues, often presenting them from a unique angle that emphasizes nuances or overlooked aspects. He uses analogies or metaphors to make complex legal points more accessible and might rely on hypotheticals to illustrate the practical application of the law. The writing subtly appeals to values such as fairness and justice, often framing the case in terms of equity or public interest. His arguments reflect an ability to break down complex legal principles into simple, digestible explanations for broader audiences.

Organizational Structure

Shanmugam often breaks from traditional, linear structures in favor of a more fluid, persuasive presentation. He tends to lead with strong conclusions or high-impact statements, followed by detailed reasoning, creating a forward-moving argument. His choice of active headings signals a more persuasive approach rather than just descriptive analysis. Shanmugam’s of topic sentences helps highlight key points and maintain the reader’s focus on essential arguments.

Case Substance

Shanmugam’s strategies involve rigorously defending the enforceability of contracts and the procedural correctness of legal frameworks, often in the face of what he argues are judicial or regulatory overreach. The common goal across his cases is to maintain the integrity of established contractual obligations and business practices, whether in employment agreements, insurance regulations, or bankruptcy proceedings. By advocating for fair treatment and adherence to statutory rules, Shanmugam seeks to preserve the legal predictability and stability necessary for his clients' business operations.

Arbitration Clauses and Enforceability

In several cases, Shanmugam argues the enforceability of specific clauses, primarily arbitration provisions and disparate-impact rules. In Flores, he emphasizes that, under Massachusetts law, the inclusion of arbitration provisions in an employment contract should not be dismissed on the grounds of being illusory. This is demonstrated by the incorporation of the NFL Constitution’s arbitration provision, which is deemed enforceable due to the mutual consideration of the contract. In the insurance case, Shanmugam challenges HUD’s disparate-impact rule for insurers, arguing it improperly encourages the consideration of protected characteristics in underwriting, which distorts the risk-based decision-making fundamental to the insurance industry.

Challenges to Court and Agency Decisions

A consistent strategy is challenging decisions made by lower courts or agencies that Shanmugam argues overstep legal bounds. In Flores, Shanmugam reasons that the district court erred in deeming the NFL arbitration provision illusory and in invalidating Mr. Flores's contract with the Pittsburgh Steelers without giving proper notice. In the mutual insurance case, Shanmugam takes aim at the HUD rule that is said to contravene the Fair Housing Act by imposing disparate-impact liability in an area where it would disrupt the actuarial basis of insurance. Both cases show an attempt to preserve business and contractual integrity by questioning improper judicial or regulatory interference.

Employment and Insurance Contracts as Economic Agreements

Another recurring theme in Shanmugam’s arguments revolves around interpreting employment and insurance contracts as economic agreements centered on risk and mutual benefit. In Flores, Shanmugam argues that the NFL employment agreement reflects a legitimate exchange of value between Mr. Flores and the Patriots, including substantial salary and benefits in exchange for compliance with the NFL Constitution’s arbitration clause. Similarly, in the mutual insurance case Shanmugam defends the business practices of insurers, which are based on actuarial principles designed to mitigate risk. The argument asserts that imposing legal frameworks such as disparate-impact rules or invalidating contract provisions disrupts these economic agreements, which are foundational to both industries.

Verrilli

Cases / Briefs:

Albence v. Mennella: The Superior Court found Delaware’s early voting and permanent absentee voting laws unconstitutional, ruling they conflict with the state constitution's provisions on election day and absentee voting, while the defendants argue these laws are consistent with common practices and challenge the plaintiffs' standing.

ConocoPhillips v. Bolivarian Republic of Venezuela: Venezuela and PDVSA appeal a district court decision permitting ConocoPhillips to enforce an arbitration judgment against Venezuela by seizing PDVSA's assets, arguing that Conoco is estopped from treating PDVSA as Venezuela's alter ego after previously asserting their separateness, a claim the district court rejected based on a distinction between liability and asset enforcement.

FTC v. FleetCor: FleetCor contests the FTC's claims of deceptive practices related to its fuel card services, arguing that the district court exceeded its authority by imposing unnecessary requirements for informed consent and granting summary judgment despite substantial factual disputes and the absence of evidence for ongoing unlawful conduct, while also improperly holding FleetCor's CEO personally liable for the alleged violations.

Legal Strategy and Argument Structure: These briefs employ a clear, strategic structure in presenting legal arguments. FleetCor’s brief uses a step-by-step breakdown of the charges, showing how each is unjustified or based on misunderstandings of the law or facts, while maintaining a focus on specific legal provisions (such as the FTC Act). In the Venezuela case, the argumentation revolves around the principle of judicial estoppel, explaining how Conoco’s legal position conflicts with its past positions in previous proceedings. The structured presentation of arguments aims to discredit or mitigate the opposing side’s case.

Focus on Legal Precedent and Interpretation: The briefs reflect a distinct approach in framing legal arguments, with a heavy focus on nuanced statutory interpretation and constitutional principles. They exemplify this by intricately dissecting regulatory nuances, aiming to show that the FTC's interpretation is inconsistent with both statutory language and the broader regulatory landscape. Similarly, in the Venezuela case, the argument hinges on complex interpretations of international law and sovereign immunity, stressing how constitutional principles should govern disputes over jurisdiction. This style highlights a deep reliance on carefully constructed legal frameworks to challenge opposing interpretations and push for a broader reading of legal protections.

Emphasis on Equity and Fairness: The arguments in these briefs reflect a focus on equitable principles. FleetCor’s argument revolves around the fairness of the FTC’s proposed injunction, arguing that its past practices were compliant and that drastic changes were unnecessary. In Albence there is an emphasis on fairness and consistency in legal positions, particularly. These briefs generally frame the opposing side's actions as unjust or unfair, either through overreach or inconsistency, reinforcing the need for a balanced legal resolution.

Regulatory and Compliance Issues: The cases involve significant regulatory disputes—in particular FleetCor faces the FTC over business practices, and Conoco faces issues related to sovereign immunity under international law. This suggests Verrilli deals with complex legal frameworks, possibly involving regulatory bodies or foreign jurisdictions.

Strategic Legal Positioning: These briefs specialize in navigating and challenging the legal positions of regulatory bodies or foreign governments. In these cases, Verrilli challenges lower court rulings that could significantly impact the client’s business operations. This strategy of appealing decisions and scrutinizing legal standards is a recurring theme in Verrilli’s approach

Focus on Legal Technicalities: Verrilli’s arguments in both cases emphasize legal technicalities, such as the proper application of legal standards (ex. judicial estoppel and sovereign immunity). This suggests a keen focus on procedural and substantive legal arguments, emphasizing the importance of legal nuances in achieving favorable outcomes for corporate clients.

Phillips

Cases/Briefs

Papp v. Pennsylvania: Dr. Kathryn Papp was convicted under a harassment law for criticizing a pet owner during a parking lot argument and for sending messages expressing her concerns about the owner's treatment of his dogs, raising significant First Amendment issues regarding the criminalization of speech based on perceived intent to harass.

South Carolina Ports Authority v. NLRB / Longshormen’s Association: The International Longshoremen's Association (ILA) filed a lawsuit against the United States Maritime Alliance to stop carriers from using the new Leatherman Terminal unless they hired ILA members for all longshore work, leading to a legal dispute over alleged violations of the National Labor Relations Act regarding secondary coercive actions and work-preservation defenses.

CG/Devas v. Antrix Corp: This case centers on a dispute between companies Antrix Corp. Ltd. and Devas Multimedia Private Ltd. over a contract for satellite services, highlighting the application of the Foreign Sovereign Immunities Act and the lack of U.S. court jurisdiction due to Antrix's foreign status and absence of relevant contacts with the United States.

Formal and Detailed Presentation of Facts

Phillips provides an in-depth, factual recounting of the events in a clear and structured manner, detailing the actions of the parties involved. Descriptions of key actions (e.g., the sequence of text messages, emails, and Facebook interactions) are included to set the stage for the legal arguments. These facts are often followed by citations to the record to back up the claims, creating a strong foundation for the legal analysis that follows.

Logical Structuring of Arguments

The reasoning follows a pattern of presenting the relevant legal issues, then analyzing how he apply to the facts of the case at hand. The structure is predictable, ensuring that the reader can easily follow the flow from issue to conclusion, often with a clear emphasis on the consequences of certain decisions.

Clear Separation of Facts, Law, and Arguments

The briefs tend to compartmentalize factual recounts, legal principles, and arguments, ensuring clarity and preventing the blending of different types of content. This separation allows Phillips to focus on each aspect in detail while maintaining a smooth, professional tone throughout. Arguments are built up from foundational facts, with each section clearly marked as relating to a specific issue of law or application.

Concise and Forceful Conclusion

The final paragraph in Phillips’ briefs often synthesizes the arguments, reiterating the most critical points without over-explaining. The conclusion is not just a summary but a firm statement that seeks to persuade the reader or judge towards a specific resolution.

Representation of Individuals Against Larger Entities

The briefs position individual clients (such as employees, consumers, or private citizens) against larger, more powerful entities (like corporations, government bodies, or institutions). The arguments crafted in these cases highlight power dynamics and focus on the imbalance between the parties, suggesting that this attorney frequently represents individuals in cases where he faces significant challenges in navigating against more resourceful opponents. These cases often involve complex legal relationships, such as employment disputes, civil rights violations, or class actions against corporations.

Advocacy for Progressive or Reform-Oriented Legal Interpretations

The remedies sought by Phillips are often aligned with advocating for change, whether through novel legal interpretations, broadening existing legal frameworks, or pushing for expansive rights. This indicates that Phillips regularly represents clients who may be seeking broader social or policy change through the courts. For instance, his arguments involve highlighting underrepresented issues, advocating for expanding protections under civil rights or consumer protection laws, or challenging outdated or restrictive interpretations of laws that disproportionately affect their clients.

Focus on Emotional and Psychological Harm

The briefs demonstrate a tendency to argue for recognition of emotional or psychological harm in addition to or instead of traditional damages, particularly in cases involving defamation, harassment, or abuse. This focus reflects Phillips's likely representation of clients who seek redress for personal harms that may not fit neatly into conventional legal categories, suggesting a caseload where emotional suffering plays a role. In such cases, Phillips may seek both compensatory damages and injunctive relief, advocating for legal recognition of intangible damages.

Requests for Injunctive or Non-Monetary Relief

In these cases Phillips seeks remedies such as injunctions or other forms of non-monetary relief. This suggests a caseload where clients are seeking not only financial compensation but also specific actions to be taken by the opposing party (such as removal of online content, halting certain practices, or enacting policy changes).

Blatt

Cases/Briefs:

Barnes v. Felix: This case addresses the standards for assessing the reasonableness of police use of force, particularly in life-or-death situations, as demonstrated by Sergeant Roberto Felix's response to a fleeing suspect during a traffic stop, emphasizing that evaluations of officer actions must occur at the moment force is applied rather than considering prior circumstances that may have contributed to the encounter.

United States v. Miller: This case addresses the conflict between federal sovereign immunity and a trustee's ability under the Bankruptcy Code to avoid fraudulent transfers made by a debtor to the United States, specifically examining whether section 106(a) waives sovereign immunity for actions to avoid such transfers under section 544(b).

Starbucks v. NLRB [main case of focus]: This case revolves around whether the National Labor Relations Board can penalize an employer for unfair labor practices by categorizing a store manager's uncertain remarks about potential raises and union benefits as unlawful threats and coercive interrogation, despite evidence that employees did not feel threatened and the manager lacked intent to coerce, raising First Amendment concerns about free speech in discussions related to unionization.

Focus on Subjective Intent

Blatt consistently emphasizes the importance of subjective intent in legal analysis. Across the briefs, she argues that the mental state of the individual—whether an employer, police officer, or government agent—must be considered when assessing liability or reasonableness. For example, in the NLRB case, Blatt highlights the manager’s lack of intent to threaten employees, while in the police shooting case, the officer’s subjective fear for his safety is central to the defense. This focus humanizes the client’s actions, framing them as reasonable or benign, which helps counterbalance any objective evidence that might suggest otherwise.

Structured and Logical Flow

Blatt’s briefs are characterized by a structured and logical flow, often starting with broad legal principles and narrowing to specific applications. Each section builds on the previous one, creating a cohesive narrative. For example, in the NLRB case, Blatt begins with the First Amendment’s protections, moves to the NLRA’s statutory framework, and then applies these principles to the specific facts of the case. This methodical approach ensures clarity and persuasiveness.

Use of Analogies and Comparisons

Blatt frequently employs analogies and comparisons to strengthen her arguments. For instance, in the NLRB case, she compares employer speech about unionization to true threats of violence, arguing that the latter receives more protection despite being less valuable. In the police shooting case, she draws parallels to common law principles of self-defense. These analogies help clarify complex legal concepts and make the arguments more relatable and compelling.

Defense Against Government Overreach

A central theme in Blatt’s arguments is the defense against perceived government overreach. In the NLRB case, she argues that the Board’s actions infringe on the employer’s First Amendment rights. In the bankruptcy case, she challenges the federal government’s use of sovereign immunity to avoid liability. In the police shooting case, she defends the officer against claims of unconstitutional conduct. This recurring focus highlights Blatt’s specialization in cases where clients face what she portray as excessive or unjustified government intervention.

Emphasis on Subjective Intent and Reasonableness

Blatt consistently emphasizes the subjective intent and reasonableness of her clients’ actions. In the NLRB case, she argues the employer lacked intent to threaten or coerce employees. In the police shooting case, she stresses the officer’s reasonable fear for his safety during a high-stakes encounter. This focus on intent and reasonableness serves to humanize the client and frame their actions as justified, even in contentious or legally complex situations.

Policy Arguments Highlighting Broader Implications

Blatt often includes policy arguments to underscore the broader implications of the court’s decision. In the NLRB case, she warns that punishing employer speech could chill protected communication nationwide. In the police shooting case, she argues that imposing liability on officers for split-second decisions could undermine public safety. These arguments aim to persuade the court by appealing to the practical consequences of ruling against her client, beyond the immediate legal issues.

Waxman

Property Casualty Insurers v. Todman: The case involves the Property Casualty Insurers' Association of America challenging a HUD rule that imposes disparate-impact liability on risk-based pricing and underwriting practices in homeowners insurance, arguing that the rule undermines state insurance regulations and violates the McCarran-Ferguson Act and the Fair Housing Act, as it threatens to disrupt actuarially sound practices essential for maintaining affordable insurance rates.

DNC v. NC State Board of Elections: In this case, the Republican National Committee and the North Carolina Republican Party sought to purge up to 225,000 registered voters from North Carolina's voter rolls or require them to cast provisional ballots without notice, claiming these voters might be "potentially ineligible," despite their applications being verified, which led to legal challenges regarding jurisdiction and the violation of federal voter protection laws.

EPA v. Calumet Shreveport Refining: This matter involves a legal dispute regarding the EPA’s 2022 denial of exemption requests from small refineries under the Renewable Fuel Program (RFP) of the Clean Air Act, with multiple circuit courts conflicting over the proper venue for review, ultimately highlighting issues of national applicability and the need for consistent regulatory standards across jurisdictions.

Precision and Formal Tone

Waxman’s writing is characterized by a highly precise and formal tone, avoiding colloquialisms or informal language. This is evident in the consistent use of legal terminology, such as “actuarially sound,” “disparate-impact liability,” and “nationwide scope or effect.” Waxman also employs complex sentence structures, often embedding multiple clauses to convey nuanced legal reasoning. This precision ensures clarity and authority, reinforcing Waxman’s expertise.

Strategic Use of Analogies and Comparisons

Waxman frequently employs analogies and comparisons to clarify complex legal concepts and strengthen their arguments. For example, in the insurance case, he compares the application of HUD’s rule to risk-based pricing with the Supreme Court’s decision in West Virginia v. EPA, emphasizing the dangers of federal overreach. In the Clean Air Act case, he contrasts the Fifth Circuit’s decision with those of other circuits to highlight the inconsistency and inefficiency of fragmented litigation. These analogies make abstract legal principles more relatable and underscore Waxman’s points in a compelling way.

Repetition for Emphasis

Waxman frequently uses repetition to emphasize key points and reinforce arguments. In the insurance case, he repeatedly stresses that HUD’s rule “clashes with state law” and “threatens vast economic consequences.” Similarly, in the election case, he underscores that plaintiffs’ claims would “violate federal law” and “sow doubt about the integrity of North Carolina’s elections.” This rhetorical technique ensures that critical arguments are not overlooked and leaves a lasting impression on the reader.

Policy-Driven Language and Broader Implications

Waxman often incorporates policy-driven language to highlight the broader implications of the court’s decision. In the insurance case, he warns that HUD’s rule could “undermine the foundation of pricing and underwriting for the entire industry.” In the election case, he argues that the plaintiffs’ claims would “cause election chaos” and “wrongly disenfranchise voters.” This approach appeals to the court’s sense of fairness and practicality, framing the legal issues within a larger societal context. Waxman’s ability to connect legal arguments to real-world consequences is a hallmark of his persuasive style.

Defense Against Federal Overreach

Waxman consistently argues against federal overreach into areas traditionally regulated by states or governed by specific statutory frameworks. In the insurance case, he challenges HUD’s rule for interfering with state insurance laws under the McCarran-Ferguson Act. In the Clean Air Act case, he emphasizes that EPA’s actions should be reviewed exclusively in the D.C. Circuit to avoid inconsistent rulings across circuits. This theme reflects a focus on preserving state authority and ensuring federal actions align with congressional intent.

Policy Implications and Broader Consequences

Waxman frequently underscores the policy implications and broader consequences of the court’s decision. In the insurance case, he warns that HUD’s rule could destabilize the insurance market and harm consumers. In the election case, he argues that purging voter rolls would cause chaos and disenfranchise eligible voters. By connecting legal arguments to real-world impacts, Waxman appeals to the court’s sense of fairness and practicality.

Challenges to Administrative Agency Actions

A central theme is the challenge to administrative agency actions that exceed statutory authority or lack adequate justification. In the insurance case, he argues that HUD’s rule is arbitrary and capricious for failing to consider McCarran-Ferguson preemption. In the Clean Air Act case, he contends that EPA’s exemption actions should be reviewed in the D.C. Circuit to avoid inconsistent rulings. This focus reflects a commitment to holding agencies accountable to their statutory mandates and preventing overreach.

Clement

LSP Transmission Holdings v. Hudson: The case involves a challenge to Indiana House Enrolled Act 1420 (HEA1420), which grants exclusive rights to incumbent electric transmission owners in Indiana to construct new transmission facilities, thereby restricting competition from out-of-state entities and potentially funneling significant interstate transmission projects to Indiana-based companies.

In re: East Palestine Train Derailment: This matter revolves around the 2023 Norfolk Southern train derailment in East Palestine, Ohio, where a $600 million settlement agreement aims to provide compensation to the affected community, despite objections from a small group of individuals challenging the fairness and adequacy of the settlement.

In re: Whittaker, Clark & Daniels v. Brenntag: This case involves the bankruptcy proceedings of Whittaker, Clark & Daniels and its associated entities, which sought Chapter 11 relief after facing extensive tort liabilities from historical operations, particularly regarding talc and asbestos claims, and sought to declare that successor liability claims against their asset acquirer, Brenntag, belonged to their bankruptcy estates to protect against disproportionate recoveries by certain creditors.

Strategic Use of Analogies and Comparisons

Clement frequently employs analogies and comparisons to clarify complex legal concepts and strengthen his arguments. For example, in the bankruptcy case, he compares the successor liability claims to the precedent emphasizing that the same legal principles apply. In the Norfolk Southern case, he contrasts the settlement’s benefits with the risks of prolonged litigation, framing the settlement as the only viable path to justice for the affected community. These analogies make abstract legal principles more relatable and underscore Clement’s points in a compelling way. This stylistic choice demonstrates Clement’s ability to simplify complex issues without losing legal precision.

Precision and Formal Tone

Clement’s writing is marked by a highly precise and formal tone, avoiding colloquialisms and maintaining a professional, authoritative voice. Clement employs complex sentence structures, often embedding multiple clauses to convey nuanced legal reasoning. For example, in the bankruptcy case, he writes, “The bankruptcy court was correct and should be affirmed. In fact, this Court has essentially already resolved this case in In re Emoral, Inc., 740 F.3d 875 (3d Cir. 2014).” This precision ensures clarity and reinforces Clement’s expertise.

Anticipation and Refutation of Counterarguments

A key stylistic element is Clement’s proactive anticipation and refutation of counterarguments. In the bankruptcy case, he addresses the Committee’s attempt to carve out California-law and product-line claims by arguing that such distinctions are foreclosed by Emoral. In the Norfolk Southern case, he preemptively counters objectors’ complaints about the settlement’s fairness by highlighting the extensive discovery and mediation process that led to the agreement. This approach not only strengthens his position but also demonstrates a thorough understanding of the opposing side’s potential arguments. Clement’s ability to dismantle counterarguments is a hallmark of his persuasive style.

Strong Rhetorical Conclusions

Clement often concludes sections or the entire brief with strong rhetorical language that underscores the stakes of the case. In the bankruptcy case, he warns that allowing creditors to pursue successor liability claims outside of bankruptcy would “enable creditors to improperly evade the bankruptcy process and obtain disproportionate recoveries.” In the Norfolk Southern case, he describes the settlement as providing “substantial monetary relief and closure to the community.” These conclusions leave a lasting impression on the reader, emphasizing the urgency and importance of the court’s decision. This stylistic choice reflects Clement’s ability to blend legal reasoning with persuasive advocacy, ensuring his arguments resonate on both a legal and emotional level.

Representation of Clients in Interstate or Multistate Disputes

Clement represents clients involved in interstate or multistate disputes, often implicating federal law or constitutional principles. In the dormant Commerce Clause case, he challenges an Indiana law that discriminates against out-of-state energy companies, emphasizing the law’s impact on interstate commerce. In the Norfolk Southern case, while the dispute is localized to Ohio, the settlement involves a national corporation and addresses claims with broader implications for mass tort litigation. This focus on multistate or federal issues suggests Clement’s expertise in navigating complex jurisdictional and constitutional questions.

Emphasis on Equitable Distribution of Resources

A common thread in Clement’s arguments is the emphasis on equitable distribution of resources. In the bankruptcy case, he argues that allowing successor liability claims to proceed outside of bankruptcy would result in “disproportionate recoveries at the expense of other creditors.” In the Norfolk Southern case, he defends a settlement that provides “meaningful compensation” to thousands of victims, ensuring a fair distribution of funds. This focus on fairness and equity reflects Clement’s commitment to resolving disputes in a manner that balances the interests of all parties involved.

Defense of Competitive Markets and Fair Business Practices

Clement advocates for competitive markets and fair business practices. In the dormant Commerce Clause case, he challenged Indiana’s law for granting exclusive rights to in-state companies, arguing that it stifles competition and violates constitutional principles. In the bankruptcy case, he defends the integrity of the bankruptcy process, ensuring that all creditors are treated fairly. This focus on promoting competition and fairness in business practices underscores Clement’s role in protecting clients from anticompetitive or inequitable actions.

Takeaways -- Similarities and Differences

Similarities between the attorneys’ cases and briefs

1. Use of Analogies and Comparisons: All the attorneys, including Shanmugam, Blatt, Waxman, Verrilli, Clement, and Phillips, frequently employ analogies to clarify complex legal concepts. This helps make abstract legal principles more accessible and strengthens their arguments.

2. Formal and Precise Tone: Each attorney uses a formal, authoritative, and precise tone in their writing, avoiding colloquialisms and ensuring clarity in their legal arguments. They often rely on legal terminology and complex sentence structures to communicate nuanced legal reasoning.

3. Anticipation and Refutation of Counterarguments: The attorneys all proactively address potential counterarguments. For example, they preemptively counter objections in various cases by providing strong refutations and defending their positions against possible challenges.

4. Focus on Equitable Solutions: Several of these attorneys emphasize equitable distribution and fairness, whether in terms of resources (such as in settlements or bankruptcy cases) or protecting competitive market practices. Their arguments often reflect a commitment to fair treatment.

Differences between the attorneys’ cases and briefs

1. Primary Areas of Legal Focus:

   • In this set of briefs, Shanmugam, Waxman, and Clement’s cases tend to focus on constitutional issues, particularly the Commerce Clause, federal law, or jurisdictional matters.

   • Blatt and Phillips focus more on bankruptcy law and business practices, defending fair business conduct and equitable distribution of assets.

   • Verrilli deals mainly with high-profile societal or financial impacts cases, involving complex legal principles like market fairness and competition.

2. Stylistic Approach to Legal Writing:

   • Shanmugam and Waxman utilize clear legal reasoning and are known for their structured, formal arguments.

   • Blatt and Phillips tend to simplify complex issues through analogies but rely heavily on their formal, authoritative voice.

   • Verrilli and Clement use strong rhetorical conclusions and strategic arguments to make an emotional impact or underscore the urgency of their cases.

3. Approach to High-Profile Cases:

   • Clement, Verrilli, and Waxman are involved in significant, high-profile cases with broad implications, such as large settlements, constitutional challenges, or interstate disputes.

   • Shanmugam, Blatt, and Phillips’ cases focus more on localized legal issues, such as bankruptcy claims or fairness in business practices, although they also address multistate or federal cases.

4. Focus on Client Representation in Multistate or Interstate Disputes:

   • Shanmugam, Waxman, and Clement represent clients in interstate or multistate disputes, often implicating constitutional principles or federal law.

   • Blatt and Phillips cases had less emphasis on such broad geographical implications, focusing more on issues related to bankruptcy, business practices, or local disputes.

   • Verrilli worked on high-profile cases that may have national consequences but not necessarily a specific multistate legal focus.