Appellate Hot List 2019: Jones Day
Shay Dvoretzky discusses the firm's top U.S. Supreme Court win.
October 25, 2019 at 02:30 PM
2 minute read
Tell us about your top U.S. Supreme Court or federal appeals court victory over the past year and how you and your team achieved the win.
We represent[ed] Merck in a case involving failure-to-warn claims. Pharmaceutical manufacturers can prevail by proving the [Food and Drug Administration] would have rejected the warning. In Merck v. Albrecht, however, the Third Circuit required manufacturers to prove this defense to a jury, by clear and convincing evidence, effectively gutting it. [U.S.] Supreme Court review seemed unlikely without a split. But [we] asked the court to rein in the lower courts' disregard for preemption, not to resolve a split. After the FDA took Merck's side, the court granted certiorari and unanimously reversed. By putting preemption back in judges' hands, the court eased manufacturers' path toward victory.
How did your firm approach appellate success over the past year?
We've always built a deep bench. Last term, four firm lawyers argued six Supreme Court cases. We've also continued to hire talented associates, including [a] number of Supreme Court clerks, and helped them develop through their own argument opportunities.
What is the most satisfying element of appellate practice in your opinion?
Appellate work requires a deep dive into the law and facts, but then simplifying everything into short briefs and oral arguments. It's both an intellectual challenge and an honor to practice that craft for clients.
What's the most valuable lesson you learned as a young lawyer?
Always focus on what your audience needs to know, not what you'd like to say.
Submitted by Shay Dvoretzky, a partner at Jones Day.
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