Along with everyone else anxiously waiting for the U.S. Supreme Courts final word on the federal healthcare law is the lawyer who defended it in the federal appeals courtsNeal Katyal.
One year ago, Katyal, who says he believes the justices will uphold the law, left the pressure cooker of the Office of the Solicitor General where he was the acting solicitor general and before that the principal deputy solicitor general. We recently caught up with him in his decidedly more modern digs at Hogan Lovells to see how life has changed since his days in the Department of Justice.
Katyal is co-director of the firms appellate practice, sharing those duties with partner Catherine Stetson.
Go back a year ago to what your last day at DOJ was like.
Im pretty emotional, and that was a particularly emotional day. I just love the ethos of the department, of trying to get it right and the client really truly being the public and not the government. The attorney general was kind enough to throw this party for me. My kids came to it. That was pretty moving too. I was so taken aback by all the kind things said. I really wished my mother was there because she was the only one who would believe it.
That was the public side. The private side, I went to every lawyers office and I tried to tell them what they meant to me. Saying goodbye to Ed Kneedler was one of the hardest things I had to do, at least professionally, it was the hardest goodbye. I never met a lawyer like him. I think everyone tries to get things right, or almost everyone. I never met someone who so strives to get things right that he will work day and night, weekend after weekend, for 34 years to do that. I found it very hard to always be focused on the mission of the S.G. as opposed to outside forces and Ed really taught me how to stand up to those forces. To do it for 34 years as opposed to a couple of yearsyoure going to anger political forces on both sides all the time. His kind of attitudejust try to get it right and whats best for the long-term interests of the institutionits powerful.
Im a completely different lawyer because of him. I came in a much more kind of strategic lawyer and left, hopefully, a much more institutional lawyer.
When did you begin thinking about your next step?
The news I was leaving broke the Friday before, and then I just started getting callsfrom the banks, investments banks. Some of it wasnt even in law. Some major tech companies called as well, and then major law firms.
Everything moved way more quickly than I planned. I was hoping to take the summer off. I didnt feel comfortable keeping people waiting. All these people were investing their own time trying to get to know me. Over the next six weeks, I interviewed every day, if not once, twice a day. It was exhausting.
I started with a list of 30 law firms, five banks and three tech companies, and then winnowed it down pretty fast. I liked the idea of going to a company and being entrepreneurial. Then I thought to myself the experience I had in the S.G. office of diversification was even better. That led me away from a single focus, in-house and law firms with a more narrow platform. I had spent some time here as a summer associate. So this is a place I was always attracted to. In some ways it wasnt a surprise I came here. I had friendships with folks here. There also is something about this place. You come in and you do your work. Its not hierarchical.
But Hogan Lovells is not exactly the same firm you worked in as a summer associate in 1995, is it?
We now work in Japan, the U.K., France, China and the U.S. To be able to say to a client, `Your issue is something we can deal with in all these different forathats very helpful. Im sure that wasnt quite the case 15 years ago. The whole practice of law is becoming international in that the same sets of issues are going to manifest themselves. A cell phone will be shipped or an iPad to 170 countries and there will be several different legal regimes, not one. To offer clients the ability to have a single set of solutions and not contradictory advice and not have jockeying from one law firm to another will be helpful.
How did you prepare for your new job?
In September, I sat and I thought really hard about what appellate philosophy I would like. One part I knewthe anti-honcho model. Some of the appellate practices in town are one honcho and a bunch of people supporting them. I didnt want that practice because it doesnt train junior lawyers appropriately. I wanted a diversified practice that allowed associates to be in court. I love the mentoring side of things. I taught for 15 years. I wanted a place where I could do that and train a whole group of people instead of just going into court myself all the time.
Number two: What makes good advocates? Short briefs. We have a defined philosophy that our briefs come in 10 percent under the word limit. We try to write simple briefs that get to the heart of things. And write briefs after really listening to understand what your opponents best argument is and answer it directly. I do think in our briefs we will include a stand-alone section saying here is our opponents best argument and we answer it.
Third, we almost basically insist we have trial counsel. We will do everything possible to try to keep trial counsel on board, which is more efficient for the client and makes us better lawyers.
We will get super early involvementeven before the district court level. Right now, were involved in two matters way in advance of litigation. These are transformative, groundbreaking technologies that will change my life and your life. We want to be in now because we can help the product side. I want to make the practice one where we are about helping businesses design their products in advance of litgiaiton so when we get to litigation, its a different posture than if we hadnt designed it, knowing what the regulatory scheme, transportation, FDA and the like, are going to look like.
How has the government bar on representational matters affected you? (Katyal is prohibited for two years after leaving government from representing anyone in a particular matter if he was responsible for that matter within the year before leaving government.)
Im recused from almost every Supreme Court case and thats been hard. One former S.G. said to me, ‘Neal, its kind of like being the kid outside a candy store with your nose pressed up against the glass. Theres a lot of recusals at every level and also a long delay in getting answers as to whether a matter was is pending in the office. I lost a lot of work because DOJ was trying to track it down. Theyve probably said no to me on 50 matters. Thats fine. Im a big believer in deference to the government in general. That part of me hasnt changed.
Have you been able to go to court much?
No, Ive gone from a world in which I was in court every month to a world where Im not in court. We had eight arguments in the D.C. Circuit in the last five months and about 20 since I joined the firm. If we had a honcho model, it would be different, but thats not our model. There are lawyers who wrote those briefs and were working on them way before I got to the firm and they should do them. Thats great for the firm, but obviously it means Im not in court. I really do like being in court so I have missed that a lot.
Have you found a work-family balance at the firm?
No, its been rough. In some ways, for first time having money has made things easier. For the most part, this travel stuff has been really hard. For the first four years of my boys lives, I was the primary parent at home. I loved that. Now, just being on the road three days or so a week has been tough. I think the travel will lighten up a bit now that Ive met a lot of people. Hopefully it gets a little better. I was also teaching at Georgetown through this year. I love teaching. It was particularly hard to run that at the same time.
And yet, you seem quite content.
I really like it here. I like the idea you can help people and companies with their problems. I love advocacy and thinking through a problem and coming up with good solutions. I was worried the work would be kind of a letdown after the S.G. office, but I havent found that at all. I definitely miss the folks at the S.G. office, but Ive got a great group of new people to work with. Theres a part of me that will always want to teach and to do stuff for the public good as well.
Marcia Coyle can be contacted at [email protected].
