AC Doubledown - Cory Friedman analyzes BOR's Brief

by Cory Friedman, www.sailingscuttlebutt.com on 1 Oct 2008
'Double Down. A Blackjack term that refers to doubling your wager after drawing two cards in return for only taking one additional card.'

Winning in the Supreme Court and losing in the Appellate Division is bound to get one’s attention. Golden Gate Yacht Club’s (GGYC) response is to double down. It has made a few changes.

Although it has not changed law firms, it has changed lead counsel, opting for Maureen E. Mahoney, Jim Kearney’s partner from Latham & Watkins’ Washington, D.C. office, along with two lawyers from her Appellate Advocacy team. Mahoney is an extremely experienced member of the exclusive Supreme Court Bar of lawyers who regularly argue before the U.S. Supreme Court. Her impressive credentials are consistent with former Attorney General Ed Meese’s long term project to remake the Federal Judiciary – University of Chicago Law Review, law clerk to Justice William Rehnquist (succeeded as one of his clerks by now Chief Justice John Roberts), Assistant Solicitor General in the George H.W. Bush Justice Department and nominated to the Federal District Court Bench (lapsed as a result of the election of Bill Clinton).

Ordinarily, by now she would have been nominated to a U.S. Court of Appeals slot and then the U.S. Supreme Court after a lucrative career in Supreme Court advocacy, but, for some reason, it has not happened and she has stayed on the other side of the bench. Perhaps she just likes winning big cases. She had done a lot of it.

Mahoney is not a member of the New York Bar and does not seem to have appeared in the New York Court of Appeals or the Appellate Divisions. She does not appear to be a sailor. Although she is probably not familiar with New York State practice, none of the procedural issues below are at issue in the Court of Appeals and, based upon her reputation for impeccable preparation and appellate advocacy skills, she should readily adapt to practice in the Court of Appeals, which is subtly different from the U.S. Supreme Court.

GGYC’s opening Brief in the Court of Appeals bears the imprint of U.S. Supreme Court practice. While this case has been appealed to the Court of Appeals as of right, because of the two dissenters in the Appellate Division, First Department, cases can only reach the U.S. Supreme if the Supreme Court agrees to accept them (except for the Supreme Court’s very limited original jurisdiction). In the tiny percentage of cases accepted, only a very narrow question presented may be addressed. Thus, advocacy is often on pinpoint and extremely arcane issues of statutory or constitutional language – although the resulting decisions may run to scores of pages, if not more.

On this appeal, after abandoning a cross appeal on its claim that Société Nautique Genève (SNG) had breached its fiduciary duty as defender, GGYC has doubled down on the meaning of the word 'having.' That is it. Everything rides on its tense as used the Deed’s phrase 'having for its annual regatta and ocean water course . . . .' The 'organized Yacht Club' issue is still argued, but Justice Cahn did not consider that ready for determination, which GGYC concedes.

While the basic arguments remain the same, style has changed. Jim Kearney and Aaron Siri favor the vigorous, often punchy style of New York litigators. You cannot win in New York’s state and federal trial courts if you do not keep the audience’s attention. Your competition is Broadway. U.S. Supreme Court writing is much more like law review writing -- smooth, conservative, colorless, unemotional, seamless, organized, and, some would say, not very interesting.

To read the remainder of this analysis http://www.sailingscuttlebutt.com/news/07/cf/#p29!click_here and you can read the whole saga.

Cory Friedman writes for www.sailingscuttlebutt.com on America's Cup legal issues, he is familiar with both the law, the court, the judge, and the sport. Cory has partnered with Scuttlebutt, and has been sitting in during the hearings, and reviewing all the filings so as to provide the sailing public with commentary that is accurate and unbiased, and full of insight and predictions based on his extensive experience in this arena.