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Deep conversations with underrated lawyers.
This is Horam with Horam's Quorum. My guest today is Prateek Shah. Prateek is the head of the Supreme Court and appellate practice at Aiken. Prateek has about as pedigreed a resume as you can get, but I'm struck with the downers conversation here about the perhaps unlikely path he took to get here as a first generation lawyer. And there's plenty of places you can learn about advocacy as an appellate lawyer.
Khurram Naik:We certainly cover some of that, but this is a rare opportunity to explore the market and the business of appellate litigation. Here's Pratik. So I'm excited to have you here, Prateek. Your lens on practice is fascinating, and you have a pretty unique story for someone who came from maybe an unlikely unlikely place to end up where you are now, and so it will be interesting to get into to that part of your your your your roots in Akron later on. But I wanna begin with, you you have a really unusual story that I think you've told in in some smaller venues, and I'll be excited to share it here, about some surprising impact of some early conversation you had in law school and how that that that led you down a path that had a a big impact in your career later.
Pratik Shah:Yeah. I would it start in my first year of law school. I was at Berkeley. And, like many first year law students, trying to figure out what I was gonna do for that summer afterwards. And I stumbled into one of those summer luncheon sessions, and this one was about judicial externships.
Pratik Shah:And, there was a panel of clerks who were currently clerks, in California courts, and I needed to establish California residency at Berkeley. So I knew I would stay there. And, one of the panelists, was someone named Vince Chabria, now known as judge Chabria on the Northern District Of California. And he was then clerking for judge Breyer on the Northern District Of California and, you know, talked about the opportunities to be an extern for the summer. And I ended up, you know, submitting my resume, and, judge Chabria, was kind enough to share it with judge Breyer.
Pratik Shah:And I was able to, you know, have that opportunity for that summer. And that summer, you know, maybe more than any other experience or job I've had in the law may have had the biggest impact, on me, for a variety of reasons. One is, because, judge Chabria and and and judge Corley, who was Jackie Corley, also the other clerk for judge Breyer that year. So all three of them are now, somewhat fortuitously on the Northern District bench as as judges. But they took, but, you know, they went out of their way to be great mentors and and help a first year law student along.
Pratik Shah:And, judge Breyer, what what was a fantastic boss. I mean, most people wouldn't be taking interest to interest in unpaid, you know, first year law students who are externing. But I recall vividly, that, one day, I came into chambers. I had been assigned to do some sort of memo in a bankruptcy case on a due process issue, which sometimes arises in bankruptcy cases. And I think I was somewhat nervous about it because, I hadn't taken constitutional law yet at Berkeley that's taught in the second year.
Pratik Shah:And so I was I'd written this memo and submitted it, to the judge, and the judge, said, why don't you come up to Chambers to discuss the memo? And I came up to Chambers, his office, I mean, and he said, well, Prateek, I haven't yet had a chance to read this memo closely yet, but my brother has, and he has some questions. And then he kinda gestures off to the side, and I turn my head. And much to my shock, I see justice Breyer sitting on the sofa there with a copy of my memo, in his hand. And, that may have been the last clear memory I have of that morning if I if I had blacked out.
Pratik Shah:I don't know. But but, no, you know, it was, we had a roundtable discussion. I remember, you know, the justice sitting there, the judge sitting there, you know, judge Chabria and judge Corley kinda smirking there. And, and, you know, it was, it was obviously a very memorable experience for me. And I and I share that story, I guess, for, I guess, a couple reasons.
Pratik Shah:One, obviously, it had a, you know, a a profound impact on me to have that opportunity as a student and and, you know, believe that, okay. Look. I can I can be in these circles and and and, you know, think think bigger and and, about about future opportunities? But, also, I think it said a lot about, the people in that room, judge Corley, judge judge Chabria, judge Breyer, and justice Breyer, all of whom made that possible. Right?
Pratik Shah:They did not have to do that at all to to to give to give that opportunity to a first year law student who hadn't taken constitutional law. You know, what what benefit are they getting out of, out of talking to me, about it? But I I think it speaks to their, willingness to be mentors, to be educators, and, obviously, had a big, formative experience in my life. I have no I have no I have no reason to think the justice ever remembered that encounter. Obviously, I went on, to clerk for him a few years later.
Pratik Shah:But, maybe I got the confidence to to apply, and, obviously, I'm sure some help behind the scenes from judge Chabria and judge Breyer, along the way.
Khurram Naik:What was the impact after that? Did that like, after you got her with the initial shock, I could easily see someone might like, the ego meter might go through the roof. We all met people like that in law school after just, like, their first semester, they did well, and, oh, wow. Now they're just, like, you know, like, swaggering down the halls. Did that happen to you?
Khurram Naik:And if not, why didn't it?
Pratik Shah:Yeah. I guess you'd have to ask the people around me to see if that was true. Hopefully, that didn't happen to me. No. I think I just remember being mostly thankful, for having that, opportunity.
Pratik Shah:And and, you know, I think it something that that has been a big part, and I think my career has been the role of of mentors. And and, you know, it wasn't just that experience in isolation. It was judge Chabria taking an interest and saying, hey. You know? Look.
Pratik Shah:I know your background. I know how you did. Here here are some judges you need to apply to for clerkships. Right? Like most I you know, I don't think any law student has a great idea of how the clerkship process works, but especially law students coming from families without any lawyers, probably like a lot of South Asians, at least of my generation, that made a big difference.
Pratik Shah:Right? And that gave me the confidence, hopefully, not not overconfident, but at least the confidence to apply to clerkships. I went to clerk with judge, Fletcher on the ninth circuit after that, which was just a wonderful, wonderful experience because he is just one of the best human beings on the planet. Forget judges. And and then and then later on to to justice Breyer.
Pratik Shah:So I think it had an impact in that way.
Khurram Naik:Let's start with judge Fletcher. What's what's one or two practice points, maybe something very practical or bigger picture with career and how to think about it, maybe either directed or indirectly? Because I can think I I externed for two federal judges in law school, and there's things that they directed to the other externs that was helpful. But it's also things that they just incidentally said to us as well that they don't didn't even necessarily know the impact it had on us. So I'm just opening the spectrum of kinds of things you could have learned.
Khurram Naik:What's one or two things that takeaways from that experience have stayed with you?
Pratik Shah:Yeah. So I'll I'll give you one very, like, concrete typical tip, lawyering tip that I still remember. It was on the very first project that I had there that that that that has stayed with me and and that I share with with other young lawyers, and then one kind of bigger picture thing, that I think is more impactful. But the very concrete lawyering tip since you asked of concrete things is it was a statutory case, I remember. And, you know, those of us, I think, I'm old, but I'm not so old such that we didn't have Westlaw and stuff when I was in law school.
Pratik Shah:So a lot of us kinda do legal research, especially as young lawyers using Westlaw or whatever, and even looking up, like, statutes, right, online. And and you read the provision, and and you go about it. And in that I remember in that case, you know, you read the provision, and and you think it means one thing. And I remember judge Fletcher telling me, yeah. You know, this analysis makes a lot of sense and all of that.
Pratik Shah:But here, you know, if you pull the book and he comes in with the book and, you know, he flips through the surrounding provisions, right, you know, it kinda puts it in a context that maybe, look. There's another way to read this. And so when I do you know, when I when I have statutory cases or whatever, I actually, you know, try to get the volume, of of of the statute. And I look at books probably more than most of the younger lawyers. But I think in that specific context, there is actually value to having surrounding context that you can't just get just through quick online research, but it's much easier to flip through a book and and do that.
Pratik Shah:So, there was that sort of concrete tip that I still use in practice now. But but more broadly with judge Fletcher, it's, I mean, he just shows you, you know, no matter how how brilliant someone is or how accomplished, you know, he's an article three appellate judge on the ninth circuit and all of that. Just there isn't a more down to earth person, that you'll meet. And so you ask that question about ego. Right?
Pratik Shah:And, you know, when you have models like that in an early on that you you see someone who's so, you know, so prominent and accomplished, but yet, you know, you would never know it if you saw him on the street. Right? The one rule in chambers we had was you can't dress better than the judge, and that was a hard bar to meet, to be honest, with judge Fletcher. He just did not have any ears about him, ate lunch with us every day, and talked with us, just as you would talk to anyone else or maybe how he would talk to his kids or or or otherwise. And so, you know, that that that has certainly stuck with me.
Khurram Naik:And so you had this early connection with justice Breyer. And so, of course, it it it was obviously, you could apply to the Supreme Court and and to clerk with him. What heading into it, though, what did you think you're gonna get out of a supreme court clerkship? I mean, it's an obvious I mean, of course, it's just what an incredible, you know, credential to get, experience to have, what a unique experience to have. And so there's obvious things about that.
Khurram Naik:But specific to you, why what what made you say I wanna do that, and what what's the payoff gonna be for you?
Pratik Shah:Yeah. So at the time, I was thinking maybe academia. I really like law school, and they tell people, look. If you really like law school, maybe you'd really like being a law professor. And the other thing I was thinking is, you know, maybe becoming an appellate advocate, having clerked on the ninth circuit.
Pratik Shah:That was the area of law I was exposed to, and I really enjoyed it. And and so for those paths in particular, a supreme court clerkship becomes very helpful just because, that is a credential that, that, you know, whether it's in academia, law schools, value or if you're going into appellate practice is valued. And so, for me, it made a lot of sense based on those were kinda a couple of the past that I was thinking about, beyond the fact, obviously, it's just an incredible experience. Even if you wanted to do nothing related to that, even if you didn't even wanna practice law, you know, you know, the the supreme court clerkship, you know, is just a special year. Right?
Pratik Shah:You're two years removed from being a law student, and then you're, you know, you're kinda sharing chambers and talking about legal issues with, like, you know, you know, the best legal minds in the country and and the justices who've, you know, you know, just legal giants. Right? And so and and because of the weird way in which the supreme court works, right, I mean, it's it's a pretty isolated existence for the justices, even probably more so back then than today, where, you know, their interaction is really, you know, with, you know, with their four clerks, you know, and and maybe some informal interaction with the other justices, but but but not a whole lot in kind of formulating their their views. And so you have this unusual interaction where you have, you know, people who, are really gonna be making important decisions for the country and then discussing them with folks who are two years out of law school. So to have that vantage point and and and be able to start grappling with some of the, you know, kind of biggest legal issues of the day at that point in the career is kinda, is is just a is just an experience that, you can't really replicate.
Pratik Shah:And so that I think that's a reason for anyone, to wanna do it, regardless.
Khurram Naik:What do you think is the the single most misunderstood aspect of the Supreme Court?
Pratik Shah:Yeah. That's a it's a it's a it's a good question. You know, what I'll say is that, and this is, you know, something that, you know, I think different people may have different views. I don't think it's as true as today. It was a different court, you know, when I clerked on it.
Pratik Shah:That was the 2003 term, so you can see how old I am, over twenty years ago, now. And I guess what I'll say about that court is it was a court of relationships. Obviously, you still had a lot of five four decisions right there. At that time, it was justice O'Connor who was the swing vote. But, you know, think about that time.
Pratik Shah:Right? Justice Scalia and justice Ginsburg, polar opposites. Right? But their relationship is well chronicled. And for those who clerked at the court, you know, that's not just made up.
Pratik Shah:Right? It is a true relationship. You know, the fact that justice Breyer would go and talk to justice Kennedy. Right? He ought he not always would he be able to influence him, but sometimes he would.
Pratik Shah:Right? They would have a real dialogue. Even justice Breyer and justice Scalia. Right? You're talking about, you know, folks who had opposite schools of constitutional interpretation, and yet, you know, they went on a roadshow for the country to see, you know, hey.
Pratik Shah:Look. Here is how we we have two different views, but here's the common ground. Here's how we're we're different. And you could just tell that the relationships mattered. You know, justice Thomas, has said publicly, like, he looks back fondly on that court, because he felt they really trusted each other.
Pratik Shah:And, you know, in some ways, I think, you know, I was able I had the privilege of clerking for justice Breyer who, you know, I think, kind of, in a lot of ways, embodied that court. You know, he's not someone who's interested in debater points. Right? He's not, you know, he's not interested in zingers. He puts a premium on relationships.
Pratik Shah:He often talked about how nine people with different views managed to be so collegial. You know, they would have these weekly conferences where they decided cases, and sometimes they didn't go your way. But no matter how it came out, he would come back, and he would continue to be optimistic, right, that the process is working. Right? We we're we're we, you know, we have the dialogue, and and and maybe we didn't get this one.
Pratik Shah:But the next time around, you know, maybe we'll be able to persuade a majority. And and, you know, it speaks to his personal fundamental decency, I think, fair mindedness and optimistic outlook. I think qualities that I've tried to, bring, in into the practice that I do. But I think it's quite frankly, it's qualities that I think all of us could could could mirror more today. And I think a lot of the devices divisiveness you see in court opinions today, in in in writings about the court, in things like that is is a big change, from, back when I clerked.
Khurram Naik:What is it that most maybe now, not as maybe then or now with the benefit of of of other experiences, what surprised you the most about justice Breyer?
Pratik Shah:Yeah. I mean, you know, there isn't I don't think there's anyone who I can think of that truly genuinely believes to his core in our system of government. And, that really embodies kind of his entire jurisprudence as being. And I'm not just talking about the judicial process. Right?
Pratik Shah:The judges are just trying to come to the right answer, and, you know, people have different perspectives, and and it's not all result result oriented, right, people. You know? I I think, I'm not just talking about that. Right? People have their own views on on that.
Pratik Shah:Although, I do believe he really believes in the process, and peep and each of the justices and judges are really giving their best good faith effort to get to what they think is the right answer. He certainly believes that. But more broadly, he believes in our system of government. Right? That everything should be designed to kind of strengthen the democratic processes so that people can participate in government, get their views heard.
Pratik Shah:He he talks a lot about law bubbling up, and it's really something to the core. And I think in today's world, even back then, but certainly now today where everyone is jaded and everyone has you know, believes that government's dysfunctional, that little good comes out of it, that, you know, judges are just, you know, you hear the critique that they're just politicians in robes, all of that. That is something to his fiber that he doesn't believe. And so, you know, to to to be with someone in, who who who right. I mean, he he's not someone who hasn't been exposed to everything.
Pratik Shah:Right? He was he was he was on the senate judiciary committee, you know, as chief counsel with, you know so he's been in the legislative branches, learned from senator Kennedy. He's been at the highest levels of the judiciary, and still he believes that today. And so, you know, that's, I guess, something surprising, but also admirable.
Khurram Naik:And what have you found that you what's a perspective that you have that differs from him, a disagreement you have? Like, where where where does your world view depart from from his?
Pratik Shah:Yeah. I mean, it it it's it's a good question. I think it's hard for us to to have that same level of optimism and faith in the system when we're confronted with with, you know, today's, world. And so, you know, I guess, to me, it's it's become more complicated in in in trying to have that have that same faith. But but, you know, I I try to keep I try to keep some of that same optimism.
Khurram Naik:Nice. Okay. And then tell me about your path from the Supreme Court to the solicitor general's office.
Pratik Shah:Yeah. So, you know, I taught constitutional law for a year. I was thinking about that. I then ended up at Wilmer Hill in Boston for a couple years. And and, and after, you know, maybe two years there is when, I applied for an opening at, the solicitor general's office.
Pratik Shah:And if I had to pick, you know, right now, we've touched on perhaps the two most formative experiences early on. The third one, has to be my my, tenure at the SG's office. I think for any, young appellate lawyer, it's hard to imagine a better job to learn how to be an appellate lawyer. So much like in the supreme court clerkship, I was talking about your two years removed from law school, and you're there. Well, in the solicitor general's office, you might be two years removed from a supreme court clerkship, and you show up at the solicitor general's office.
Pratik Shah:I had only argued one other case in any court, and that was an intermediate court of appeals state court of appeals in Maryland. And then you come to the s g's office, and your next argument is gonna be in front of the supreme court. But you're not thrown in there completely, blind, because you you get the the privilege and the opportunity to learn from really the best, in my opinion, the best supreme court advocates in the country. You know, the deputies, the solicitor generals are obviously always very, esteemed appellate practitioners. I was the last hire of Paul Clement, which I think speaks to the bi truly bipartisan nature and institution of the SG's office.
Pratik Shah:But there are career deputies. Right? When I was there, Ed Needler is still there. Michael Dreeben was there, the criminal deputy. Both of them have well over 100 supreme court arguments each.
Pratik Shah:And when you watch them at work, I mean, just their substantive knowledge, the way they go about it, you're really not gonna get a better education in how to be a a supreme court, advocate. And so, for me, that was, you know, a transformational time, from being an aspiring appellate lawyer to actually, you know, becoming one and doing it. And and so, yeah, it's a it's a special place.
Khurram Naik:And we we've, there's actually because we've talked before, I know there's actually a know, somebody might see your resume and see this kind of, like, march of progress and miss out on some of the behind the scenes actions that happened to get there. So I actually think let's double back to your that that one l externship because I think that's where the story starts of how you started making connections and then how you started learning that that skill set of of networking, which was, I think, new to you, so many so many people, but particularly as somebody with without as a first gen law student. Tell me about, you know, how that journey started, and I wanna pick that up as you progress in your career.
Pratik Shah:Yeah. Yeah. No. I am not a natural networker. I think those who know me well would know that.
Pratik Shah:I don't think it's something I've ever really shared with a group of people, but I'll say it now. But, you know, I By
Khurram Naik:the way, Nesha, if you're not a good networker, I'm just just Right. Happy to know if you're not telling other people about stuff. So
Pratik Shah:I'm Yeah. So, you know, it was so kind of foreign to me that I remember at the beginning of law school, you know, when you have those recession receptions or career workshops when firms or other people came. You know, I would actually, because I just didn't I wasn't comfortable approaching people and talking. You know, I would literally write down beforehand to myself on a little scrap of paper, you know, kinda like three bullet points of things that I thought people might find interesting, or or or things to talk about in that context, just to make make me more comfortable and and and not be on the spot. And so, you know, I think I've gotten past that that at least, but but, you know, there are little things along the way.
Pratik Shah:Right? Like you said, go back to that first year. You know, judge Chabria, you know, I I I I do feel like I owe him a lot because he did take that interest in me. And and and not only with facilitating that interaction with judge judge Breyer and justice Breyer, but, you know, helping me with the clerkships, right, when I clerked for judge Fletcher and then later for for for for for justice Breyer. And then, you know, it didn't end there.
Pratik Shah:Right? Along the way, right, I mentioned the SG's office. We talked about, becoming there. Actually, I remember now someone had put me in touch with, now chief judge Sririni Vasan, who was just an assistant in the solicitor general's office at the time, when the opening had come open. And he was on his he was leaving the SG's office.
Pratik Shah:And so, you know, someone set up a phone call, and I had a phone call, with him about the job. And and and then I applied for that opening and and and got the job there. And then when I joined the office, there was an assist another assistant still there who was a few years ahead of me, Canon Chadmagum, who's one of the country's best, supreme court advocates. And, so I got to to know him there. And, you know, lo and behold, as he leaves in comes, Neil Katyal as the principal deputy, and got to form a strong relationship with Neil.
Pratik Shah:And then when Neil lee leaves, you know, who comes back? Chief judge Sri Srinivasan becomes the principal, deputy. Neil was the principal deputy under justice Kagan, who was then solicitor general. And then, Sri became the judge chief judge Srinivasan became the, principal deputy under Don Varelli. And so got to, you know, come full circle from that conversation I had with him to actually working with him, and forming these relationships.
Pratik Shah:And and, you know, those folks happen to be brown, happen to be Indian, which, you know, I think, honestly, it made me more comfortable, to form that relationship, right, and to to, with them. It doesn't obviously mean your parents have to be of someone of your same ethnicity by any means. But for me, at least someone, again, might not naturally form those, relationships. It made it easier to have that common ground. So I think there is something to the fact of having folks come.
Pratik Shah:I think it does make a difference. It forms a path. I've tried to do the same, for those coming after me. I think it's a little it's a little interesting knit of of the bar. You know, obviously, South Asians are growing in in in the law, but the supreme court bar is one where we've been long established now as a strong community.
Pratik Shah:All the people that I mentioned, you know, chief judge Srinivasan before he became a judge, Neil Katyal Cannon, myself, Deepak Gupta, know, before all of them, and now many many after me. Right? Aishan, who argued, like, three cases last term. The gender saying there's a, you know, Vivek Suri and Sopan Joshi in the SG's office right now, tons of folks. And so here, you have this little corner, and I don't think it's coincidental.
Pratik Shah:A little corner of practice where through the SG's office, there's been a chain a a chain and and and and and a network, if you will, of of of of folks who've been able to support each other at least in some way, or another.
Khurram Naik:Then building on that, can you speak to how the process of professional growth and mentorship at the SG office I mean, of course, when you're a supreme court clerk, that's a term you know, that that there's a term that you're a clerk for, and it's terminal in that way. But can you compare the experiences of training, mentorship, and etcetera for for for the s g's office as a training ground versus the supreme court?
Pratik Shah:Yeah. So, you know, you know, clerkships, you know, I think, are great grounds because you don't have to have any networking or any ability to do anything. It is natural mentorship. Right? I think many judges many judges view that as a critical part of their role.
Pratik Shah:And so that's why I I highly recommend clerkships. Even if you have no interest in appellate law, even if you have no interest in litigation, you know, do a clerkship because that is the easiest way to form this relationship with someone who, knows a lot more than you, has been accomplished, and will really become a backer for you, you know, for years and years to come in your career. And that just happens organically through the process. And so that that's a really nice natural thing about clerkships, whether that's a district court clerkship, a court of appeals clerkship, or a supreme court clerkship. Right?
Pratik Shah:I don't think that that is a differentiator. I think that is something that happens with that. In the SG's office, you know, it's obviously not structured in that way. Right? This is your job.
Pratik Shah:You're you're a fully formed lawyer. You're going out and practicing, but it's a small office. And I think that makes it very comfortable to kind of form these relationships and learn. Right? I mean, the office, I think, those who aren't familiar, is shockingly small.
Pratik Shah:You know, 16 assistants, four deputies, and and the s g, you're talking about 20 attorneys. That's it. That that that do lit you know, supreme court litigation for the entire United States executive branch and oversee all of the upheld litigation, in in the courts of appeals for the federal government. And so when you're in that small environment, I just think it's easier to thrive, to learn from others, to form relationships, have conversations after an argument. Hey.
Pratik Shah:You know, you were awesome. Here's one thing you could have maybe, you know, here's one way to handle that question differently, or you could have done this. Right? Those are conversations that happen in the SG's office after every argument. Everyone's very supportive, but at the same time, you're kinda learning, from each other as well.
Khurram Naik:Are there any advantages you can think of to training in appellate advocacy at a firm as opposed to government, for instance, SJ's office?
Pratik Shah:Yeah. Look. They're they're both they both have great value. Right? And at different points in your career, one might make more sense, than the other.
Pratik Shah:I mean, the advantage of the firm, is for very young lawyers coming out. You know? And this is what I did. Right? Right.
Pratik Shah:You know, early on at Wilmer. Right? You had the opportunity to work on it. I had the opportunity to work on the case, in front of the supreme court and be one of the primary drafters of that brief along with one of my happened to be one of my co clerks at the supreme court, Julian Mortensen. We got to do that with Seth Waxman.
Pratik Shah:So you get these great opportunities to learn from great folks and be involved early on. I think, the the differences in the government when you go out, you can get oral argument opportunities. They're they're more plentiful, and and they just kind of, you know, you don't have to worry about paying clients authorizing a very junior person to do significant oral arguments. At the government, that's just how it's done. Right?
Pratik Shah:And so there's opportunities there. That's something, you know, quite frankly, in our practice as I've, you know, come over to the private sector and, where I've been that realizing that that we put a big premium on trying to get oral argument opportunities for our associates because I've always found that to be the one lagging part of big firm appellate practice. And I've tried to take the lessons from government and realized, look. If you wanna be an appellate lawyer, it's important to get oral argument opportunities. And so that's something we try to put a big premium on is getting at least one oral argument for each of our associates every year.
Pratik Shah:And then naturally, it happens, and they build more, over time on their own. But it takes some work to do that in the early years. So that's, I think, one of the differences between government and private practice.
Khurram Naik:Yeah. And and going back to the SG's office, in one of our earlier conversations, I asked you, hey. You know, what was an inflection point in your career? And and so you you talked about the Defense of Marriage Act and its course at at the Solicitor General's Office. So can you can you talk a little about that?
Pratik Shah:Yeah. So the defense of marriage act arose while I was an assistant in the s g's office. And up until that point, in the Bush administration and, quite frankly, in the Clinton administration before, the federal government had always defended the the constitutionality of the Defense of Marriage Act. And just to remind everyone, the Defense of Marriage Act was the federal law that said the federal government would not recognize any same sex marriage even if it was lawful under state law. So for purposes of Social Security benefits or any million other federal, benefits, there was a federal law, that said the federal government would not recognize same sex marriages.
Pratik Shah:Like I said, it was defended during the Clinton administration, defended during the Bush two, administration. And then when president Obama came into office, he and attorney general Holder made the decision that they would no longer defend the law, because they believed it was unconstitutional. And so the justice department put a new team, including in the solicitor general's office, to to to, reflect that change in position. And I was part of that solicitor general office team, along with, chief judge Sri Srinivasan, who was then the principal deputy. And so we we worked on that case together, for the federal government, in briefing.
Pratik Shah:I I wrote the brief, challenging the constitutionality of the, defense of marriage act in the Windsor case, which, which went on, with Robbie Kaplan arguing for Edith Windsor and Don Varelli arguing for The United States, went on, and and the Supreme Court struck down as everyone now now knows the def defensive marriage act is unconstitutional. And then that formed the basis for the decision a few years later in Obergefell that recognized marriage equality as a as a as a constitutional right. So, you know, that was a formative experience for me for a lot of the reasons, some of the obvious. Right? It's it was a landmark landmark case.
Pratik Shah:But but also, you know, it got it was the first time as part of a case where there were so many interested people, not just in the public at large, but even within the government. Right? People had been defending this law for a long time. It wasn't an easy decision. It's not something the government often does is attack its own federal law.
Pratik Shah:So there was that, dealing with that constituency. There were a lot of people who felt strongly on the other hand. The meetings on the law were, you know, filled with people from different agencies. Watching how Don Varelli navigated all those dynamics was a true learning experience working closely with chief judge Srivastava and developing our arguments along the way, working with Robbie Kaplan, the great Robbie Kaplan along the way. And then personally, you know, obviously, it's not at least of that generation in the South Asian community, you know, not not something that was easily discussed, but, you know, I've had since I was very young an uncle who, who is gay and and has lived with his same sex partner ever since I was a little boy.
Pratik Shah:And and my grandparents came to accept that. I'm sure I was too little to know, the the struggles to get there, but we remain very close. And and I know it was incredibly meaningful for him and our family when they got married shortly after, after those decisions in the state of Washington. And so, you know, professionally, personally, all of those things, a meaningful case for me.
Khurram Naik:Mhmm. And then it I guess, I I think part of what we talked before was significance of that case for you was really coming into your own as as an advocate and as a professional to to to kind of understand your potential and understand what it felt like to be steering on career, to be a leader. Can you talk a little more about that legacy for you?
Pratik Shah:Yeah. You know, I wasn't steering the ship in that case by any means. Right? You know, that was Don. That was Sri.
Pratik Shah:I I was the one writing the briefs and and and developing arguments, but that did lead. You're right. It was more of in the sense that that was towards the end of my tenure in the in the SG's office. And and and and that's honestly what led me to start thinking about, you know, what's next. You know, I'd been there over five years at the time by that point, and it it felt like, gosh.
Pratik Shah:You know, it's gonna be hard to top this experience working on that case. I loved the job. I loved briefing, arguing supreme court cases. I've already talked about what a great institution DSG's office is, but the one piece that's missing from that is you aren't the one steering the ship. Right?
Pratik Shah:You're not the one ultimately making what's gonna be the the government's position in the case, and, you know, what are gonna be the major strategy calls. That's ultimately not your call as an assistant. That's ESG's call. And so as I was thinking about it at that point in my career is, hey. Look.
Pratik Shah:Am I ready to try to take that next step and kinda be the one who's making those strategy decision, making the ultimate calls, taking more of a leadership position, in in in in in in my cases and in, and in and and in the practice. And and that's one thing that, you know, you're limited in your ability to do that in the s g's offices as an assistant as great a place as to be. And so that I think that's what probably got me thinking, hey. You know, what's the next step?
Khurram Naik:And so the next step for you was a return to private practice. Tell me how you assessed the landscape and how you made a decision about what's what was the the properties of the firm you're looking for, and and what were the right conditions for for you for success?
Pratik Shah:Yeah. So when I left, which is now over a decade ago, when I left the SG's office, as I kind of viewed the landscape of appellate practices in DC, you know, it struck me that there were kinda, like, three different models or types of practices. One was kind of the large mega practice where I had been an associate, for example, at Wilmer Hale under Seth Waxman or Carter Phillips at Sidley or the late Ted Olson at Gibson, Dun and Crutcher. Right? Big built out practices with a former solicitor general, a very prominent person with maybe a half dozen partner deputies or more, and then senior associates, mid level associates, junior associates built out.
Pratik Shah:Right? So that that's that was one model. Probably not the right model for me because I was trying to go somewhere where I could be in the the leadership capacity driving the bus, and and you're not gonna do that when there's Seth Waxman, Carter Phillips, Ted Olson already at those practices. The opposite end of the that model, the second model, I'll say, is the kind of, you know, fruity agent model or or or really a firm that's interested, doesn't have an appellate practice, but wants to bring on an experienced supreme court litigator to to either to have it or to build one. And, you know, so, you know, if you think about, some of the New York firms, that didn't historically have those, there have been number of people who've gone on and done that very successfully.
Pratik Shah:Cannon did it. Williams and Connolly originally. Jeff Wall now at Sullivan and Carmel. You know, Doug Hallward, Dreameyer at Ropes. We were assistants together.
Pratik Shah:And and, you know, they've all been incredibly successful. And and and, you know, the upside there is, you know, you build it in your vision. But, you know, there is, I'm not gonna talk about the stories that it did not work out because that's a big risk at those places that haven't haven't had it. And, also, you don't have that group. Right?
Pratik Shah:You might be able to do the practice. You're the person, but you're working within a general litigation group, and you don't have that same tightly knit, kind of, well defined group that you might have in a clerkship or in the SG's office or in one of those bigger firms that I had mentioned, before. So I think there's some, you know, pros and cons the pros and cons to each of these, but that's how I saw it. And then there is what I, you know, view as the third what for me, the Goldilocks, model, which is, look, a a a well defined appellate group, but it's small. You know, it's not led by a former SG.
Pratik Shah:It's small. It's strong. And but there there's room to build. There's room to grow. But but but it's got a foundation, and it's got established appellate credentials.
Pratik Shah:And, you know, I there there are, I think, a number of folks who I would put in that category. Aiken, obviously, is where I am now. I would put in there Jenner, Morrison, and Forrester, you know, all places like that with super high quality appellate practices and and and and people, that I think fall in between those two other extremes that I mentioned. And for me, that seemed really appealing. Right?
Pratik Shah:You have a real group of appellate lawyers that you can be part of a small community within these big mega firms, and yet it's not so big such that you need a hierarchy that you might at some of the bigger firms. You can really work with everyone. It's it can be very collegial, very, horizontal rather than vertical, and you can shape its direction. You can grow it. And so at the time I was coming out, president Obama had, just nominated, now judge Millett, but Patty Millett to the DC circuit.
Pratik Shah:And so, Aiken, was looking, and she was head of Aiken's Supreme Court in appellate practice, at the time. And, I believe she had reached out to to to judge Srinivasan, who was then the principal deputy solicitor general, and he put us in touch. I did not know, judge Millett at the time, but, he put us in touch, and I ended up hitting it off with judge Millett in terms of kind of, I think, how we viewed you know, we had both come from the solicitor general's office. She had spent even, a longer time there before my time. I think we had just a very, you know, a very similar vision of of you know, she had she had hired a group of folks who are very down to earth, you know, super smart, talented, you know, supreme court clerks and all the like, but also folks who are very down to earth and which is how she is for any of you who, know her and just hit it off and felt very comfortable, felt like I could trust her.
Pratik Shah:And and and and that's where I ended up going to try to build and take the reins from her and build on all the wonderful things she had done and, a, not screw it up and, b, hopefully, build and grow it over the years.
Khurram Naik:So you mentioned a few other peer firms that you or or kind of in that same bucket of that that that Goldilocks spot. You you mentioned I think I heard you say Morrison, Forrester, Jenner, and I'm assuming there's maybe a few others. How would you differentiate Aiken's practice from those peers?
Pratik Shah:Yeah. Look. No. They're all they're they're all great practices and and and great folks at them, close friends and others from the SG's office, all folks who I admire. And and, yeah, that's one of the cool things about the appellate community is, you know, we all, a lot of us have filtered through the SG's office at one time or another.
Pratik Shah:We do moot courts for each other as favors and all of that. So there's a lot of synergies. You know? I I what I could say about Aiken is, I mean, I think, you know, we've really tried to build the culture, really putting a premium on people who, you know, really like working together. Right?
Pratik Shah:There's no there's no, doubt about it that we're a big law firm, and everyone works very hard and all of that stuff. And so if you're gonna be somewhere working hard, let's do it with people who you really wanna be around. So it's a non negotiable. We're gonna hire, right, the most talented folks. And we've been very lucky because we are relatively small.
Pratik Shah:You know, we hire maybe one person a year that we're able to kind of, you know, get, you know, the pick of the, very best talent in the country, but that's not enough. Right? Is it someone who is gonna fit in with our culture, and and, be someone you really wanna interact with? There's very little management I have to do, to be honest, of our group because the people are are are just so, work together so well. And, and so that's, I think, kind of been a defining feature.
Pratik Shah:I guess the the other thing I'll point out is the fact that that, you know, we all argue cases, you know, from top to bottom. You know, we had our associate, Marga Roscone, just argued her first ever case, not not just a pro bono case, but but but for a paid client in kind of a bet the company type matter in the fifth circuit and one. Right? And because we are relatively small, our matters tend to be more leanly staffed, And so the clients get to know not just me or one of the other appellate partners, but get to know the associates on the case too because there might be only two or three of us on the case. And so that gives them the confidence because it's often hard to talk a, you know, paying client with a big thing to say, hey.
Pratik Shah:Yeah. I'm gonna trust someone to do their first argument in it. But if they've seen that person at work and interacted with them and really learned that they're the brains behind the operation, then, you know, I think that happens. And so we try to do we try to do that, whether it's through a pro bono opportunity for the first few arguments or, like, for Margo, a paid opportunity. You know, one of our other great, talented, wonderful counsels who came to us from justice Sotomayor who's gonna be arguing in the second circuit next week, for a major case for Kodak, like, a a big, big case for Kodak.
Pratik Shah:And so, you know, these are the the these are the sort of arguments that, that we that our associates are doing. And so, yeah, it's been a real it's just been a real privilege for me. The the one last differentiating factor I'll mention is in my time here, we have not hired a single lateral partner in my decade, at Aiken, all homegrown. We've made four homegrown partners. I was the only one after Patty left here in DC.
Pratik Shah:We made four homegrown partners in my, decade or so here, and that's just our philosophy. We're gonna hire the very best people, we can, and, hopefully, they'll wanna stay. Not all do. Right? We've had people who go into academia, wanna go into the government, you know, have all sorts of different interests, we support them there.
Pratik Shah:But for the folks who wanna stay and make this their home, I think we've been able to do that and, you know, I you know, that that's not that's not me. That's coming from a lot of support from the firm. They're probably not a whole lot of firms for a practice of, you know, less than a dozen people that would make, you know, four homegrown partners in a decade. So, you know, that's not leverage that a big firm normally would have, but I think they recognize kind of the value of and the talent of the people that that we're able to bring in.
Khurram Naik:And then help me understand paint. Let's paint a historical picture here then then to get some sense of trajectory into where we are today and where we're heading. So help us understand what what would the market for appellate litigation look like 10 like, say, ten years earlier before you joined? So you joined 2013. What would it look like in 02/2003?
Khurram Naik:What it looked like in 2013, and what does it look like today? Like, what's what what are the differences at those three points?
Pratik Shah:Yeah. So I would say, you know, a decade or two earlier before I joined, you know, there wasn't a big market in the private sector. And, you know, quite frankly, that's why in earlier times, I think people stayed in the SG's office a lot longer. Right? You know, there were a lot of assistants at least at the time that I joined and or or shortly before I joined that had been there decade plus, in the SG's office.
Pratik Shah:And and I think part of that is there wasn't a private sector option, really, for you to do that same sort of practice in the private bar. A lot of supreme court cases decades ago were argued by the trial lawyer or by, you know, the state government person, or there wasn't that large specialized bar, certainly not in the private sector. Folks like Carter Phillips and Andy Pincus and and those guys on the vanguard, Seth Waxman, Carter Phillip, they started these, you know, practices in some of the DC firms. And and and I think slowly but surely, I think firms caught on that, hey. Wait a minute.
Pratik Shah:This seems to be a high value proposition. Maybe not just in the bottom line of dollars and cents, but these are these are bringing on really talented lawyers that handle high profile cases that can add a lot of value to the firm both tangibly and intangibly. And and so those grew over time. Right? All the ones that we talked about and then the new ones coming up.
Pratik Shah:So as I said, you know, so if you go back, whatever, thirty years ago just didn't exist. Right? And and then, you know, by the time I'm coming out, you know, ten plus years ago, the the they're they're pretty well formed, and and you have those different models that I mentioned. Now fast forward now, you know, I I've noticed the turnover in the SG's office. You know, three years, people leave.
Pratik Shah:Right? Two, three years. That was unheard of. Right? That was viewed as, no, you shouldn't be coming for that short of a stint.
Pratik Shah:You know, I was I was almost six years and and and and and and few people, you know, some stayed a little shorter, a little longer, but that was, you know, within the realm. And now I think people are leaving because there are even more sorts of variations on those models. Right? There's those models and the and other things in between, and so the demand has increased in there. I think there was always a concern.
Pratik Shah:I even remember when people said I was coming out. They're like, jeez, the market looks pretty saturated, right, for supreme court appellate advocates and, you know, not sure, you know, what the opportunities really are. And yet year after year, people come out, find great jobs, succeed. And and and it is interesting because during this entire time, over the decades that I've been talking about, the number of supreme court arguments has shrunk. Right?
Pratik Shah:Thirty years ago before mandatory jurisdiction, there were, you know, 150 cases being argued back when I clerked, you know, 85 cases, you know, now this past term under 60. Right? So it's a, it's a it's a it's a smaller set. So it's not, you know you know, outside of, you know, maybe, you know, Paul Clement or someone. There aren't a lot of people arguing half dozen cases a term anymore.
Pratik Shah:But what's happened is that the it's really become a developed practice in the courts of appeals, federal courts of appeals. Now in any highs virtually any high stakes appellate dispute, I'm seeing one of my counterparts from the supreme court bar on the other side, you know, in circuit courts across the country. And so it's not it's it the supreme court bar, the primary practice for all of us all of us is in the federal courts of appeals. And then, and that's become, you know, an area where, again, I think in high stakes cases, more often than not, you'll see, folks with that background doing it, which, which firms have recognized, which clients have recognized, and and that's been and then the other reason why I think the demand continues to increase is regulatory litigation. Right?
Pratik Shah:Not even appeals at all, but they look a lot like appeals. There's no there's no discovery. And that area has really just exploded, honestly, be with all the changes, both in terms of how the agencies have been acting, but also the changes in the supreme court jurisprudence. Right? No Chevron major questions doctrine coming along.
Pratik Shah:People much more the judiciary much more skeptical of agency federal agency action. So clients challenging agencies' rules, regulations, and whole hosts of areas, health care, trade, environment, securities, labor,
Khurram Naik:all
Pratik Shah:of that. Now if you look at it, it's almost always someone like me or one of my counterparts that's involved in those litigations even though they often start in the district court. They they work just like appeals, oral arguments, and then they work themselves up the chain fairly quickly. So the practice is diversified. I've seen even in my ten years doing it, I did virtually none of that in my first five years at Aiken, and now we do a whole lot of it.
Pratik Shah:And so I think that's all been part of the evolution.
Khurram Naik:So let me make sure I understand the evolution right. So part of it is substantive that there's, you know, new new frontier of disputes around regulatory disputes. And part of it is there was an existing matter of, let's say, appellate work. There there's, you know, less, me, Supreme Court matters to to argue, but there's there's I don't I I haven't seen any numbers on on appellate activity. Has appellate activity changed much, say, in the past decade or so of matters that go to the appellate courts?
Pratik Shah:Yeah. I don't know the statistics on that. What I what I bet, though, at least anecdotally, what I would say is that clients have become more sophisticated about hiring for high stakes disputes, folks from appellate practices like ours rather than just sticking with your trial counsel. I think that was probably, and, obviously, that still happens today, but that was probably how it happened, you know, much more often in, in prior times. Right?
Pratik Shah:You know, you you stick with whoever win or lose. You stick with them, especially if you won. But nowadays, especially the more sophisticated clients and especially in in high stakes disputes, as I said, I'm seeing more and more of my counterparts on the other side or the same side of of those sites types of cases. So I think that's been an a related development.
Khurram Naik:I think it's interesting to note that and so much of the story you're describing here is one of mobility. So you're talking to SG's office and how tenure is, you know, dramatically shorter than before. So that's a story of mobility, and then there's also a story of client mobility of, hey. Let me send this matter to sophisticated help counsel. That's interesting.
Khurram Naik:That that's just an interesting story to know that, you know, it just you see this in the legal market as a whole. You see there's a lot of mobility among associates, among counsels, among partners. Just in every aspect of legal practice and private practice, you're seeing just greater mobility of lawyers than of matters, it looks like.
Pratik Shah:Yeah. I I I think that's right. I I think that's right. There's there's no doubt doubt about it. I mean, you know better than me, but, yeah, you see big name partners leaving firms, changing firms, true in the associate ranks, as well and and, yeah, with matters, as well.
Pratik Shah:Right? I mean, be and and it's also with the increasing specialization. Right? That's not unique to appellate law. That's in the law in general, but I think appellate practitioners have benefited from that, in that, you know, I think clients want to go to the experts in that and for appeals.
Pratik Shah:And even it gets even more segmented. Right? You know, patent appeal specialists or people who do administrative law appeals and and and and and that. So I think that has also been a contributing factor increasing, specialization, for sure. The one other area I would mention probably why firms have found it valuable, and you've seen this increase is and, again, this is not a dollar sense thing, but, you know, in in pro bono cases, right, there you know, I think firms do find value in in being part of it, you know, both as a part of the professional duty of being a lawyer, but also in terms of of, you know, those are often cases that get a lot of attention and bring attention to the firm and positive attention to the firm.
Pratik Shah:I mean, we've historically and we're not unique among appellate practices, although I think, I do think we, tend to emphasize it a whole lot here at Aiken. But, you know, we've, you know, we've always litigated kind of big big pro bono cases over the year, whether it's in this you know? And depending on the firm's bent and maybe the the leadership's bent, that that might look differently, what you define as your pro bono cause. But for us, it's been civil rights, immigration rights, LGBTQ rights. I had the privilege just, two days ago to second chair an argument, which I haven't done in a while, But sec at the supreme court, at least, second chair an argument for, Chase Strangio, the trailblazing ACLU lawyer, who's the first openly transgender lawyer to argue in our challenge to the ban Tennessee's ban on gender affirming care for adolescents, which was honestly, you know, which was just an incredible experience for me just being able to to work with Chase closely and and and play that supportive role for a younger lawyer.
Pratik Shah:And he's truly a trailblazing lawyer. He's been litigating these cases around the country, but to to work closely with him, and he did a incredible job. And our solicitor general, Elizabeth Prologer, did a incredible job arguing that case. But for for from a firm standpoint, you know, it's it's just to be somewhere where that you know, I feel really lucky to be an appellate supreme court appellate lawyer in our practice. I think it feels really lucky because that's just that's a part it's not like we do that in addition to our job.
Pratik Shah:Right? I mean, often the hours if you look at our our matter hours, some of the heaviest matter hours are supreme court cases that we've taken up along the way might, in any given year, be a pro bono non, you know, nondilable case in that sense. But that's just part of the we don't differentiate. That's just part of the practice, and it's, and and I think it's, it's it's one of the best parts of being a an appellate lawyer.
Khurram Naik:Well, you hear this from lawyers a lot of time is that there is you know, there are firms have policies around pro bono hours and credits, etcetera, but least hastily and sometimes counter to those rules, there's overt communications about, hey. Just limit how much pro bono you're doing, and this is, you know, this is too much. So it sounds like your practice is really unique in so clearly being expected to contribute in that way, but a firm is still a business, and so then how do you communicate and get buy in from the firm just to confirm that, hey, I'm confirmed this is still valuable to to the practice group that, you know, we are still getting compensated for this in every sense. Like, how do you how do you it's such a unique position that you're in to to ask for substantiation of something that is not revenue generating. So how do you do that?
Pratik Shah:Yeah. You know, I I think the firm sees the value in it. We've been doing it for a long time, and they keep keep making partners in our group and and and keep treating us well. So, you know, I think they see the value. But, you know, I don't wanna take it for granted.
Pratik Shah:You're right. Right? Not all firms make that calculus. Right? That's why you don't see marquee appellate practices at every firm, right, or even firms that have them.
Pratik Shah:You don't see the level of pro bono. I think stuff that we do or some of our, you know, some of our peers, do because I do think that. I think we have a leadership, that is extremely supportive, that truly believes in it, the chair of our firm, some, you know, on the board of the, LDF. And, you know, so, you know, I think there is, you know, I think there is that it's gonna depend firm to firm. But, and so I think if you're thinking about which firm to go to as a lawyer, you know, that that that's something to think about, the track record and all of that, because it isn't it isn't a given, that that's gonna be viewed as a value high value proposition.
Pratik Shah:Now, of course, we're adding value in all the other ways that I said. Right? The high stakes disputes and the court of appeals, those are not pro bono cases by any means, you know, when you're getting hired to do, those cases by the NFL or SpaceX or whoever it is, McDonald's, whoever our clients are, you know, you know, that those are important cases for those, firms, important, for those clients, important for our firm. And, you know, we're we're able to do stuff that strengthens the other you know, you may say, okay. Well, our practice might not be the most profitable, but what we do strengthens the most profitable practices, you know, at the firm.
Pratik Shah:Right? You know, I argued the Purdue bankruptcy case, the opioid bankruptcy case for the victims of the opioid crisis. Right? That is a representation that our bankruptcy group, one of the largest in the country, had been doing, for years and years in the trade practice. We have the largest trade practice in the country at Aiken.
Pratik Shah:And, you know, we, the appellate group, are leading the challenge on the China tariffs in the in the largest section three o in the largest trade litigation in the history of the court of international trade. Right? So we're able to add value to the marquee business, profit generating practices that I think that that the firm, can can see in in that way even if we, at the end of the day, aren't aren't ourselves generating it matter after matter.
Khurram Naik:And then can you speak to origination work? Because you're you're you you talked about it says at least one matter was, you know, a product of of matters referred from other practice groups. Tell me about the landscape of other practices that are destination practices for appellate matters? Because you talked about part of this concept of now more than ever you're seeing that that trial counsel isn't necessarily becoming appellate counsel. So it sounds like there's becoming a market for appellate counsel for certain kinds of matters.
Khurram Naik:He also know that certain courts are especially, you know, require more expertise, like the Federal Circuit has got, you know, its own jurisprudence and and quirks, and and there's it's beneficial to have an an a subset knowledge of, say, patent law. So how do you see how appellate practices like, how do they approach business development just broadly speaking? I guess that's the big picture question, and this question of originating work is is is part of that.
Pratik Shah:Yeah. So, you know, I think Appellate is unique in that sense in that, you know, I view it as there's two basis to to to business development. There is internal and external. Right? A significant part of what we're doing, I would say at least half, is still internally generated.
Pratik Shah:Right? Matters that folks in our various other practice areas at the trial level are handling. Right? Whether that's IP, like you mentioned, or trade or labor or Indian law. We do a lot with our Indian law practice, you know, the those sorts of things.
Pratik Shah:So forming we form very close relationships with those with some of those strongest practice groups within Aiken that generate high value work at the trial, trial level, trial court level. And so that's an important part is forming relationships within your firm with the people and groups that have the sort of work that is gonna generate and justify hiring, you know, a high end appellate shop to to do it or that will even be pursued on appeal, you know, whether that's to the court of appeals or supreme court. That is an absolute important critical part of, I think, success of of of any big firm appellate practice is forming those relationships. And it works, I'm sure, differently within each firm. You know, like I said, I had the blessing of coming after judge Millet here who had formed a lot of great relationships and credibility within the firm for us.
Pratik Shah:And, you know, I think we've been able to build off of that and expand those relationships. That is a huge part of it. And then the other part is the external part. Right? There there are over time, you develop clients even if they don't use Aiken for some of those other practices when they have a high stakes dispute or an appellate dispute or, quite frankly, regulatory litigation.
Pratik Shah:Right? I mentioned that. That originates in the district court. So they may just come to us. A lot of industry associations.
Pratik Shah:Right? We have relationships with the chamber of commerce and others, might might come to us, directly to handle those. And so and then, of course, there's the occasional pitches you get invited to and based on referrals and all of that. So that's part of it like any other practice. But but, yeah, the big difference is I think we at least I view it as I have this, you know, this internal and external business development, if you will, that that that's necessary to to really have a successful appellate practice.
Khurram Naik:And what do you do you do personally for external business fella activities?
Pratik Shah:Yeah. You know, I different now than when I first started. Right? When I first started, you know, I had never been a partner at a firm, let alone leading a practice or anything like that. You know, judge Millett was hugely helpful in that and flying around with me to meet all clients.
Pratik Shah:I just remember the first, like, six months being a blur because I was always meeting clients and, you know, giving talks and doing that. And quite frankly, like, the government, no one knows who you are. Right? And, like, nobody publicizes anything you do when you're you know, at least back then before there are all the all the blogs prominent, you know, people just don't know who you are. So a lot of it is just getting out there, getting people to know you.
Pratik Shah:Now I've been doing this ten years. And so that part of it becomes easier. Right? You don't have to be out there promoting and and meeting with clients and all of that. People start to come to you, which makes that easier.
Pratik Shah:But still, you know, I'm doing a lot of talks about the especially in the in the end of the term, beginning of the term, that summer season, right, where the supreme court is in recess, DC circuit is in recess. The nice thing about appellate practice is it does typically dip down in busyness over the summer, which is great. You have families and all of that stuff. There's still briefing and all that stuff going down, but argument prep time, goes down. And and I replaced that with doing doing talks on the supreme court on appellate appellate advocacy.
Pratik Shah:I really enjoy that. It also happens to have the benefit of getting you in front of different lots of groups, clients, whatever it might be, bar associations, law schools, whatever, that that exposes you. And things happen in in in mysterious ways. Right? You you would never guess the you know, some some ways in which work ends up coming back to you.
Pratik Shah:And so so, yeah, I think that's all part of the process.
Khurram Naik:What part do you enjoy the most?
Pratik Shah:Oh, yeah. Probably, you know, doing the talks on on on Supreme Court. You know, it's an area of you know, for basically my entire career. Right? I've been watching the court and doing it.
Pratik Shah:It's still something, I find fascinating, and and I really love what I do. You know? Don't tell the firm this, but I would do this probably for a lot less. And so, you know, it's something I really, naturally, enjoy. I'll be for the first time, actually, since I taught con law after my supreme court clerkship, I'm gonna be teaching a class this spring at Georgetown, law school on constitutional litigation and the executive branch with Joshua Matz.
Pratik Shah:And so, so it's something I really just, enjoy.
Khurram Naik:Is that a lot of work to prepare an outline for constitutional law now?
Pratik Shah:Yeah. We'll see. We'll see. It starts in the spring semester. I mean, it's not gonna be a true, like, first year comm law class.
Pratik Shah:It's gonna be a seminar that talks, about case specific examples of constitutional litigation against executive branch. And, I will certainly be incorporating some of my own cases, which hopefully will help in, in reducing prep time and still making it more interesting for the students since, I can share some actual firsthand firsthand experience.
Khurram Naik:How has the experience of teaching impacted your career? Like, what is it that compared to somebody who hasn't taught the way that you you have, how is your practice different than somebody who who wouldn't have had experience?
Pratik Shah:Yeah. I mean, probably not a lot. I mean, honestly, like, there there are some. I'm not gonna say it categorically. There are a few academics who can who can become who make good appellate practitioners.
Pratik Shah:Think, Toby Heighton's a great example. Right? We were in the SG's office together. He was a professor at UVA, came over to the SG's office. He was a phenomenal advocate, appellate advocate now on the fourth circuit.
Pratik Shah:But but sometimes, academics don't make the best, appellate advocates because they're thinking big thoughts, concepts, trying to harmonize things. Where when you're in an appellate court, you're trying to win a case, or when you're a supreme court, you're trying to, you know, reconcile precedent history, the things that the court is interested in, not necessarily your academic theory. And so I'm not sure that, you know, you know, teaching has a a big impact on on on, on how I, having taught. And, again, it's been now, gosh, almost twenty years since I last taught. So I I can't say that that but we'll find out.
Pratik Shah:May may may may maybe it'll make me a better or worse practitioner after reteaching this spring, so we'll see.
Khurram Naik:But so I wanna speaking of education, wanna go back to your early experiences because there was an inflection point that happened for you even before you went to college for your education. So can you take us back to your roots a little bit about those early influences and the and the trajectory that sent you on? Because I think in many ways, learning about the earliest years helps us understand that your outcome was it it seems like less predetermined and and and subjected to some early luck and some some benefits you received then.
Pratik Shah:Yeah. Yeah. And I'm happy to start, talk a little a bit about that. I grew up, as you, I think, mentioned in beginning in Akron, Ohio. That's where I was born and raised.
Pratik Shah:Like many of folks in our generation who grew up with parents who immigrated from South Asia, my parents from India, I grew up in a working class neighborhood in Akron, stayed in the same house all the way until after I left for college there. And, you know, not not great schools in in our in our area. I was the only Indian kid in in my elementary and, middle school. I had a great experience, I will say, and there are challenges, along the way. But my brother, who is five years older, I think, had the foresight.
Pratik Shah:You know, he went to the high school in our area, which, really wasn't doing well. And, and, you know, I'm thankful for his, foresight. And he said he told my parents, you know, you can't send Prateek there. And so, I ended up going to a Catholic high school in Akron even though I'm not Catholic. Never been to a church in that.
Pratik Shah:I'm raised Hindu and Jain. And and but for for the education, I ended up going there. And, you know, I I do think that had had a big influence on on kind of, you know, where, where I ended up, after that. You know, it was a great academic experience there. I ended up, applying to Princeton and going to Princeton, for college.
Pratik Shah:A large part of that was the fact that my mossy lived in Sayreville, New Jersey. And so that, you know, it gave everyone comfort that we had someone close by. But I did end up going to Princeton from there. And, you know, in in in a lot of ways, you know, you know, having grown up in Akron where I was the only Indian kid in my elementary, middle school, but, you know, we had a small Indian community in this on the side of maybe, I don't know, a 10 dozen Gujarati families who lived in Akron who kind of spent the weekends with growing up. I'm still in touch with some of the kids who I grew up, with back then on those weekends.
Pratik Shah:It's kind of a second world almost. Princeton felt a little bit like that to me. I in in in not just in the South Asian, non South Asian sense, but just in the cultural sense. And that, you know, felt a little bit, like I was entering a new world, there. Obviously, there were a lot of kids, like me from small towns or, you know, more disadvantaged backgrounds or whatever.
Pratik Shah:But there were also a lot of kids from boarding schools and and elite schools and all of that. And so, you know, it was an adjustment there. But like anywhere, you find your community. You find your people. There was also a small South Asian community of friends at at Princeton.
Pratik Shah:I'm sure it's much larger now, but back then, a small small group. You find the other folks there. And I did chemical engineering there, and it was a great place to do that. It was a small department, which which I found very helpful just given my personality and allowed me to grow and and think about other things. A lot of people who do engineering there don't go go on to be engineers, and I was kinda in that boat.
Pratik Shah:I did engineering, but didn't wanna be an engineer. And and it wasn't the most, certainly the most, educated decision. But but but after that is when I ended up in law school. So it was it was an unlikely, I guess, trajectory in some ways. But if I if I had to pinpoint, you know, my big brother back then, you know, saying, hey.
Pratik Shah:You know, let's send them to home and open up some opportunities, made it to Princeton, opened up more opportunities. Right? It's not a story unique to me by any means, all made possible by the parents taking the true true leap and and and and coming to this country and and and allowing those other much smaller leaps or steps to happen. But but, so my my story is not by any means unique. I know a lot of people who probably listen to your podcast can relate to it in a bit, but, but, yeah, that's that's a little bit about how I got to where I ended up.
Khurram Naik:And look. I mean, you you went to Princeton, and there's many people who came from very privileged backgrounds at that school in particular. Part of your story is that you happen to make a relationship with one judge Breyer who knew another judge Breyer. So those are what are the odds these two siblings both had, you know, that, you know, the the position they had in society? So there's pools of people that had these kinds of outsized performance, and we can spend all time a lot of time talking about whether that's nature or nurture or whatever.
Khurram Naik:But the point is that there's there's some groups of people that do have some advantages of in terms of relationships and networks, etcetera. And some that you were talking about early on is is that, hey. You were not natural at this, and you had to kinda figure this out from scratch, and you get this, like, one point o version of three bullet points you wrote down to to to have these conversations with. So I I guess I'm curious as a big picture question is, compared to some of those pedigreed peers, the the peers who did have the ties to lawyers and did have some insights into, hey. Here's how you choose a law school, and here's how you think about feeder judges and all these other kinds of of of insider information that among comparably talented peers is a differentiator in terms of outcomes.
Khurram Naik:What were the advantages of not having those advantages?
Pratik Shah:Yeah. I mean, I guess, you know, I guess one thing you have when you don't have all of that kind of background coming in is you are coming in as a blank slate in a lot of ways, and so you don't have preconceived notions. Like, I had no idea when I ended up at at Berkeley, you know, law school, you know, what I would eventually be doing. I didn't know that appellate law was a field. I didn't know what the solicitor general's office was.
Pratik Shah:I didn't know about clerkships. You know? I just didn't know that. And so I didn't have any preconceived notions. Whereas, I guess, if I had come in with, you know, a lot of people who knew about things and maybe, you know, I I know I wanted to be some corporate securities litigator, and I wouldn't have considered anything else, and I would have gone down that path and done the things that there had not kinda stumbled into this, path that put me on a trajectory to become a supreme court appellate advocate.
Pratik Shah:And so I think there are advantages, right, that you do that. But but it is. And and I'm sure it's true in every field. Right? But law is the one that I know.
Pratik Shah:It's an opaque process, like clerkships. Like, how do you go about even deciding who to apply to? How do you make that happen? And and, you know, it seems, I know they come up with these plans and all of that, but it can start pretty early on where your grades from the first year. But I think when we when we were in law school, I'm trying to remember, I think you applied just after your first year, so you only had a year of grades.
Pratik Shah:Like, how do you figure out how to do that? And so, you know, finding it is, I think, a hugely important thing. And we had at Berkeley, like all law schools, right, we had our affinity groups, which were strong Then it was in the aftermath of when they had just in the aftermath of when they had affirmative, ended affirmative action. So the affinity groups were were were were, particular emphasis on those groups, and and, you know, that that played a role with me, as I mentioned, you know, know, forming the meeting judge Chabria and having his input and other students there. I think it is super important.
Pratik Shah:Now we have, I think, many more formalized ways in which to do that. There's the appellate project, a great organization that, you know, matches up, first generation law students, law students of color with, more senior members of the bar. I'm sure law schools have more formal programs and all of that, but but but I do think, it's an important thing to to help shed light on what can otherwise be a pretty opaque process. Mhmm.
Khurram Naik:So speaking of opaque processes, I think a lot of people don't understand you know, we were talking about how the Supreme Court makes their decisions and sums the behind the scenes about how ideas are socialized and and how they end up drafting their opinions. And so you you know, as a clerk, you you have unique perspective on the court. I recognize, as you say, the court has changed and and changed in terms of how they they work together and work on their opinions. But it'd be hard to to miss this opportunity to ask you about advocacy and your principles for for advocacy. So let's start with you know, there's briefing.
Khurram Naik:There's oral advocacy. Let's start with briefing. Tell me about, at the highest level, what are the the three bullet points, if you will, for your, principles for appellate briefing?
Pratik Shah:Yeah. So, I mean, I think the overarching thing about briefing is, right, you wanna build a narrative so that the court wants to rule for you. And here we're talking about supreme court briefing. And so almost never do they have to rule for you. They're the supreme court.
Pratik Shah:They can change the precedent. They can kinda do anything they want as broadly, as narrowly as you want. So we're talking about supreme court. You really need to come up with a narrative that makes them want to rule for you. Now how that's done is gonna depend a lot on the case.
Pratik Shah:Right? You know that there there but there are finite set of tools that you're working with. In some cases, it may be the precedence on your side. In other cases, it may be the text on your side. In other cases, maybe neither of those on your side, but you've got policy and common sense and equities on your side.
Pratik Shah:So, right, depending on which what sort of case it is and which are the tools are gonna be strongest for you, to me, it's shaping that narrative around that around whatever tool is gonna be most effective for you to get the court to want to rule for you. And so that's, I guess, at the highest level, that's kind of how I think about it at the outset of a case, at the Supreme Court is maybe different from briefing before the lower courts.
Khurram Naik:And then in terms of you know, you've got this raw matter of trial court record, and so maybe we can expand this conversation to appellate briefing as well as Supreme Court briefing. You've got this raw matter. How do you shape that to go to the appellate level? Like, what what is a high level principle you're using for, I am prioritizing arguments, and what was I prioritizing? And, you know, at a really high level, how do you sit down?
Khurram Naik:Like, what what is your order of of of tasks you approach with understanding the subject matter you're working with and and how you're gonna present it.
Pratik Shah:Sure. So I think I think key what what I think most appellate lawyers will tell you, and and certainly, I'm a believer in this, is that right. And, again, it's this is not true for all cases, but but generally speaking, look, you're looking for legal issues. Right? Issues of law.
Pratik Shah:Right? Lot happens in trial. And I think this is really the value add of appellate lawyers is sometimes it's easy to get stuck into the facts and the morass of what happened and wait. This was this was found wrongly against me or my client or, you know, that's not how it actually happened and all of that. I think cutting through that to get to legal issues, appellate judges are much more comfortable when it comes to deciding peer issues of law.
Pratik Shah:So trying to figure out, okay. Here's everything that happened. You know? What is the best legal issue that I can present? And and I can weave in the equities and the facts and all of that, but let me distill this to two.
Pratik Shah:And I don't want 10. I don't want eight. I want, like, give me one two max three, right, in terms of questions presented in an appeal so that the judges can really focus on on, you know, distilling what might have been months and thousands of pages, if not tens of thousands of pages of record into a 50 page brief.
Khurram Naik:And then when you think about how to prioritize arguments, are there any principles you're using there for like, let's say there's three arguments. Like, what is a a further principle you might use for for organizing?
Pratik Shah:Yeah. You know, a lot of that's gonna depend on the case. But, you know, at the highest level, and this is not rocket science, always start with your strongest argument. Right? That that that that's what even if it might not logically always be in that way.
Pratik Shah:But, you know, judges have limited time. These appellate courts are busy. They get a lot of cases on any given day. They might be hearing four or five arguments. You know?
Pratik Shah:Let's come out with what is our strongest argument, and and let's make it. And even in that, like I said, you know, I want one, two, or three max issues in an appeal. And then that gets even funneled further by the time of argument. Right? I wanna be trumpeting my best argument now.
Pratik Shah:Maybe there are times to pivot if a judge happens to be the reason why you brief the others is maybe one judge is interested in one of the other arguments. Great. You do that. But usually by the time through that briefing process, through the opening brief, and then by the reply brief, if you have a reply, you can funnel it. You get a better sense of funneling it.
Pratik Shah:And then by argument, the idea is to have it really distilled to what is your best your best argument.
Khurram Naik:And do you have a formula for how you prepare for oral argument?
Pratik Shah:Yeah. You know, that's changed over the years. You know, in the early years, in the in the in the SG's office, in particular, you know, and you're getting ready for argument, you know, I used to, for example, one of the things I used to do is I used to write out, questions, and I would, in fact, you know, do q and a's. And I still do that to some extent, perhaps less than I did then. But you would write out all your q and a's.
Pratik Shah:And, but the thing that was different back then is I would actually, you know you know, put those questions, write out those questions on, you know, pieces of paper or note cards or whatever. And I would give them to my to my wife, who is not a lawyer. She's a pediatric oncologist, has has, little little patience for legal discussions and even less patience for me. And so I would give them to her, and this was, you know, in the pre kid era before we had kids. And and she would you know, I would say, hey.
Pratik Shah:Can you ask me these questions? And she would ask, you know, randomly pick out one of the cards, ask me the question. And without fail, after about twenty seconds of me talking, she'd be like, I'm bored. Move on. And and so it would force me really to crystallize my answers into succinct nuggets.
Pratik Shah:Now I'm gonna see sound really old, but I'll say back in the old days of those supreme court arguments, before the changes in post pandemic changes where they changed the format of arguments. That was truly you know you know, that was the challenge was because the questions were relentless. There's still a lot of questions in supreme court arguments if you listen to them, but they were really relentless in that pre pandemic days before you had this protected round of questioning at the end. And so you really needed to be able to succinctly answer things and then pivot on to something else because you really just didn't have that ground. So, again, I'm sounding like an old man back when supreme court arguments were really hard and challenging.
Pratik Shah:They're still hard and challenging, but but that was a particular skill. And so that was something I used to do is have her answer questions. And then now, you know, once we have kids and, you know, all of that stuff, you know, that that all fell by the wayside. And and and, you know, I fell into my preparation and doing a lot of the same things, obviously. Look.
Pratik Shah:I'm gonna read the reread the briefs closely. I'm gonna come up with my cute few key q and a's. All of that, I still do. The most important part of preparation, though, which is true then, true now, I'm a strong believer, and this is the solicitor general's office model, is moot courts. That's now become ubiquitous, I think, in the appellate bar.
Pratik Shah:But it really started in the SG's office and, did two moot courts for every case in the SG's office. I still do that now today for any case that I'm arguing here in private practice, and we do that for all our cases. We do two moot courts. Whoever's arguing doesn't matter. And we have people asking questions who have not worked on the case previously.
Pratik Shah:They pick up the briefs. They read them just like the judges would, and you do, you know, whatever it is, an hour of q and a, and then debrief to do it better. There's no better practice, I found, for preparing for argument, than that.
Khurram Naik:Well, you know, on the topic of, you know, what you trained at and learned at the office, you you've trained with people like Seth Waxman. You train with people like Srisha and Avasin. How does your style differ from some of these key influences?
Pratik Shah:Yeah. You know, there are different styles, obviously, of supreme court argument. You gotta be true to your, you know, what you're comfortable with and your personality. I mean, you know, Paul Clement, who hired me, who's kind of, you know, one of the best supreme court advocates of his of his generation. You know, I think, justice Kagan described there are I think the words you used are are heaters and chillers.
Pratik Shah:Right? Like, he he tends to he tends to amp up in an argument. Right? Amp up the energy, amp up that, very lively argument style. And and then, you know, on the other side of the coin, there are people who, tend to be very tempered, very measured in the way, that that there are arguing cases.
Pratik Shah:I think of Leandra Kruger. We were assistants in the solicitor general's office together. She's now a justice on the California Supreme Court. But, you know, you go listen to one of her arguments, very soft spoken, brilliant arguments, but just bringing the temperature down and and and and calm, cool, and collected no matter what the how pointed or how aggressive the the the questioning might, might be. So I've try you know, I've learned from watching, all of those folks, you know, some things you can imitate, some things you can, and some things you have to be true to your style.
Pratik Shah:I guess others would probably be better suited to describe where I fall in that spectrum. I will say, though, that sometimes you have to adjust, you know, for the case the type of case that you're, that that you're arguing. I mean, the example that comes to my mind, which is, I think, out of my normal style, out of my comfort zone, was the Purdue opioid case that I argued, last term where, you know, I was arguing on the same side, and I think there's different variables you have to keep in mind when you're an advocate. But I was arguing on the same side with Greg Garr, who was representing Purdue. And, you know, Greg by personality, Greg is a phenomenal advocate.
Pratik Shah:He was one of the five solicitor generals who I served under and just an awesome person, very low key. That that is Greg. Right? Measured, methodical, and and quite frankly, representing Purdue, you know, problem and and fit appropriately with the demeanor there, answering questions, in a low key methodical way, sticking to the law. You know, I was arguing with him on behalf of all the opioid victims and all of that.
Pratik Shah:And so I knew that my role was really to channel the victim's voice. And so, I think as justice Kagan said during that argument, wow, mister Shah, you're being very emphatic. And so I think, you know, she recognized that it was not my normal style, but I think it's what, it's it's it was the right thing to do for the clients there, and the right message to send for the court, to get to get across the equities and the importance of the of the case there. So I I think, you know, yeah, there are gonna be different styles. Great advocates have different styles, so there is no one style.
Pratik Shah:You have to see what fits your personality, what you're comfortable with, and go with that.
Khurram Naik:Maybe this is a dumb question. Judge k justice Kagan knows your style. What do you think is the actual impact of you varying how you spoke with the case? Okay. You chose the emphatic style, which makes sense.
Khurram Naik:It it matches that demographic you're serving and and just so to it. It just the corresponding Purdue Purdue is chastened by all its, you know, impact it's had. There's no dispute about the negative impact that opioids have had, and the only question is what to do about it. And so so it makes sense that you chose that style, but what do you think actually was the impact of choosing a different style that moment?
Pratik Shah:Yeah. Well, I, you know, I don't know. You'd have to ask the justices. We still came up a vote short, but but I think it allowed us to communicate. You know, everyone would have to listen to the argument to do, but I think it did create space for us to communicate some very important points that were reflected, unfortunately, for us in the dissent, but but but but but but came through and I think impacted the questioning that the justices did.
Pratik Shah:You never know. Obviously, it's hard to know how it would have turned out otherwise. I think it was the right call in that moment. But, yeah, you've gotta, you know, you gotta kinda do what makes sense to you and and and and and hope that that resonates with the justices.
Khurram Naik:Well, maybe and, again, with the repeated caveat that I recognize that that the court has changed over time in in in composition and and how it operates. But at the time that you clerked, what was the practical impact? Help us understand what really happens at the oral argument and the practical impact it has on shaping judges' decisions.
Pratik Shah:Yeah. You know, I think, you know, different judges will say, I think, different things. I think what you typically hear, which is what I I think I tend to agree with, which is and this may differ a little bit between the supreme court and lower courts, whereas I think oral argument generally makes a bigger difference in the courts of appeals than it does the supreme court. And you can kinda probably see why, right, in the supreme court. These are justices which have very well formed views.
Pratik Shah:Now I think there are a subset of cases in which oral argument can make a difference and does make a difference and certainly makes a difference in a much bigger number of cases how the opinion is written. But as to the ultimate result, I think briefing ends up being much more important than oral argument, generally speaking, in the outcome of cases. You know, I think oral argument, can, you can lose a case at oral argument pretty easily by making bad concessions and making mistakes. I think it's less, less common for you to be winning cases at oral arguments, but it does happen. And so, obviously, you wanna be as well prepared and positioned you can to maximize the odds of that happening.
Khurram Naik:And with that in mind, your approach to oral argument then is playing defense to make sure you're not giving up anything?
Pratik Shah:Oh, no. No. Not at all. I think that that that's just something that I think you don't want to do. Right?
Pratik Shah:I mean, I don't think you prepare not to give away the case. I think I've seen it happen a fair bit. But but, you know, I think that's just comes with the territory and advocate. No. You're you're trying to put you are trying to frame the case in the best possible light for your client, for your position.
Pratik Shah:That's what oral argument to me is about. And, of course, addressing the hardest questions and the biggest vulnerability in your case because judges will ask about that, and so you have to take that head on. So, you know, I think that's the the biggest role your biggest role in in oral argument.
Khurram Naik:Look. I mean, from what you describe about appellate practice, it it seems like even with all the changes you described, increased mobility, which and then increased competition, All things considered, appellate practice still seems very glamorous. So so what are the reasons why, and, you know, a skilled litigator, maybe somebody who clicked court to supreme court, let's say, what are reasons why someone might pursue a trial court practice rather than a appellate practice?
Pratik Shah:Yeah. That's a better question for the trial court litigators who you who you who you interview. I you know, what I've heard what I've heard over the years is, some some, some will say, oh, well, appellate litigation is like playing tennis without the net. Right? Right?
Pratik Shah:I mean, you know, you you don't have that challenge of, you know, all this stuff that goes on in a trial court and the back and forth and the, you know, cross examination and all those kind of, I guess, you know, my cousin Vinny moments or or or whatever. You know, to me, you know, at least from my perception and understanding of trial practice, what I appreciate is not having to deal with all the hassle that litigators often have to deal with real litigators who do trial court litigation have to deal with in terms of, gosh, you know, discovery disputes or nasty grams between lawyers over all sorts of things. That is by and large absent from appellate practice. Usually, the only things you're procedurally you're fighting over, like briefing extensions, which usually everyone agrees to, or, you know, things like there just isn't that much to fight over other than the substance of the case. And so, you know, now the the one change for me, as I mentioned last few years doing regulatory litigation in the district courts, I've now I've now encountered that more.
Pratik Shah:And that's reaffirmed my my belief that I chose the correct path in being an appellate lawyer because I don't enjoy those, you know, fights over procedural things and timing and preliminary injunctions and all of those things that seem much less orderly, and, I don't really go to the substance of the legal issues in the case. The other, you know, benefit, I guess, in the appellate bar is because it tends to be, a lot of repeat players, especially in the supreme court bar in particular. But as I mentioned, often see them in in the courts of appeals, you have that personal relationship. And so that also, I think, makes it much easier in communicating and lot less of the games and, you know, missives and all of those things that I think are more common in in other types of litigation.
Khurram Naik:Okay. So still basically only reasons to be an appellate lawyer. Okay. Got it. So sometimes, John, there is out there.
Khurram Naik:I got it. Okay. So so so for for all the associates who are listening to this or maybe law school students or even earlier who who are considering a path to appell litigation, how do you how do you even think about guiding someone about that? So we already know someone's driven. They're they're they've got all the intellectual prerequisites and dispositions to enjoin the kinds of subject matter that happens in pill litigation.
Khurram Naik:Maybe we've already covered the why to pursue it. Maybe more tangibly how to pursue it.
Pratik Shah:Yeah. You know, I mean, appellate appellate, you know, is a is a field in which there is, in many ways, kind of an established track. Right? And so it's not you know, it is a pretty known it's a pretty a path that you can follow and embark on if that's something you wanna do. You know, clerkships are the starting point.
Pratik Shah:Right? And and in particular, clerking for some sort of appellate court is is, I think, an important, an important step, in that in that process. And so I always emphasize to anyone who's interested in in in in becoming an appellate lawyer to really think hard about clerkships and, you know, and and and doing a clerkship and and, you know, taking from there. Now there have been circumstances, but they're unusual. We'll hire someone in the appellate group.
Pratik Shah:I mentioned Margo Rasconi earlier, one of our associates who argued in the fifth circuit, and she came to us from Georgetown, directly having not even clerked yet. You know, she had done night school at Georgetown and gotten some bad advice that, oh, no. You know, night students, aren't gonna be able to get good clerkships or whatever. But then she took a class with judge Millett, who was teaching there. And, you know, I think judge Mullett told me, like, she's the best writer, you know, she's ever had in any of her classes.
Pratik Shah:And so, you know, we brought her on. She was fantastic. And then when she was here, she applied for clerkships and got a plus clerkship. You know? The just judge Kelly and judge Cuthlage on the sixth circuit and then came back here.
Pratik Shah:So there are ways to get around it, but the typical path, you know, you do your clerkship. And then and then, you know, you think about joining, you know, one of those appellate obviously, supreme court clerkship would be would be would be great. And then, you know, joining one of those appellate practices. But there are other opportunities as well either at the outset of your career or once you've done this for a few years, department of justice outside of the solicitor general's office has, you know, stellar appellate components in the civil division, the criminal division, environmental division. Various components within justice department have their own appellate sections.
Pratik Shah:They have an honors program. They take young lawyers, and you get to start arguing cases very early on in the federal courts of appeals. Their state solicitor general's office is now. That's another new development. Didn't exist when I was coming out of law school, but they have now developed much in the mode of of the federal the solicitor general's office.
Pratik Shah:The states having very sophisticated and high quality solicitor general's offices, that's opened up a whole number of opportunities, for young lawyers in appellate, in in in the appellate space. So I think in some ways, there are more opportunities than there used to be.
Khurram Naik:What do you attribute that rise? What why is the states have elected to to to start this, and why didn't they have them before?
Pratik Shah:Yeah. Same development. Right? Increased specialization, realizing the value of having these. And and and now, you know, you'll see whole bunch of states with former supreme court clerks and others as their state solicitor generals, often pretty young lawyers, as well, which is opening opportunities for younger lawyers to take leadership opportunities, in that avenue.
Pratik Shah:And that's red and blue states. Right? You've seen that phenomenon in both. And and that's been part of the trajectory, right, in this increase in in the Trump administration. Blue states taking the lead in challenging Trump policies in the Biden administration.
Pratik Shah:Red states taking the lead. Those suits, by and large, are being led by these state solicitor general's offices who have now become, you know, pretty high power type appellate shops.
Khurram Naik:Well, so it sounds like, you know, you you make all these joking references to to how old you are and and how, you know, to to to to you know, how ancient your experience is. But something I'm struck with is, I think, probably, justice Spryer did have an impact to you with your optimism that you really are someone who any number of people will be tempted to describe changes as for the worst, but I I I haven't heard you describe overall the trajectory of the appellate bar as as any of the words. There's challenges, and there's things maybe that you disagree with. But overall, just it creates more and more opportunities for litigators to develop their craft and develop business. So I I think I'm struck with with that optimism that you have, and I'm I'm glad we sat down to talk.
Pratik Shah:Yeah. It's been a lot of fun. Thank you, Karam.