Editor’s note: This is the second in a three-part series.
I have litigated against the federal government for more than 30 years and spent an additional six years working for the government—two in the White House Counsel’s Office, two as an associate independent counsel, and two in the Justice Department overseeing the constitutional defense of health reform legislation and trying to defuse other exigent issues. Too often, I saw lawyers and their clients fail to persuade the government because they had not understood their adversary’s strengths, limits and motivations. From my current perch back in private practice, many of the lessons I learned seem obvious. But experience—including my own earlier obtuseness—suggests that in the moment, clarity is more elusive. By setting out these lessons here, I hope to illuminate the common sense behind them and suggest to clients what they should expect from their attorneys when dealing with the U.S. government.
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