Khurram’s Quorum – Ep 032: Pratik Shah on the market for appellate law and choosing your lane

Khurram’s Quorum – Ep 032: Pratik Shah on the market for appellate law and choosing your lane

Pratik Shah is the Practice Head of Akin's Supreme Court and appellate practice, and he has about as impressive a resume as you can get. He clerked for Justice Breyer at the Supreme Court, served at the Solicitor General's office, and now leads one of the most respected appellate groups in the country. But what struck me most about this conversation was the perhaps unlikely path he took to get here as a first generation lawyer from Akron, Ohio.

There are plenty of places you can learn about advocacy as an appellate lawyer, and we certainly cover some of that here. But this is a rare opportunity to explore three underdiscussed topics: the market for appellate litigation, the business of appellate litigation, and the seismic shift in appellate practice over the past couple of decades. We also dig into how to make decisions about the kind of practice to join and build, and the role that mentors and relationships played at every turn in Pratik's career.

Keep reading below for the full link to the episode and the full transcript of our conversation.

Top Insights

Below are the highlights of our conversation:

• Mentors Open Doors You Cannot See: Pratik's career was shaped by a chain of mentors starting with a chance encounter at a law school luncheon. Judge Chabria connected him to Judge Breyer, who connected him to a Supreme Court clerkship, which connected him to the Solicitor General's office. None of these steps were visible from the outside, and none would have happened without someone taking an interest in a first generation law student.
• The Market for Appellate Law Has Transformed: Thirty years ago, specialized appellate practices in the private sector barely existed. Today, the Supreme Court bar has expanded into federal courts of appeals and regulatory litigation, driven by increased specialization, sophisticated clients, and a judiciary more skeptical of agency action. The number of Supreme Court arguments has shrunk, but the overall demand for appellate advocates has grown.
• Choose the Goldilocks Model: Pratik describes three models for appellate practice at a firm: the mega practice led by a former Solicitor General, the solo transplant building from scratch, and what he calls the Goldilocks model, a small but established group with room to grow and shape its direction. He chose the third, and it allowed him to build culture, develop associates, and make four homegrown partners in a decade.
• Build a Narrative the Court Wants to Follow: At the Supreme Court level, the court can do almost anything it wants. Your job as an advocate is to craft a narrative that makes the justices want to rule for you, using whatever tools are strongest, whether that is precedent, text, policy, or equities. Distill to one, two, or at most three issues, and lead with your strongest argument.
• Pro Bono Is Not a Side Project: At Akin, some of the heaviest matter hours in any given year come from pro bono Supreme Court cases. Pratik views this work not as something done in addition to the job but as an integral part of what makes appellate practice rewarding and valuable to the firm.

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Full Transcript

Khurram Naik: This is Khurram with Khurram's Quorum. My guest today is Pratik Shah. Pratik is the head of the Supreme Court and appellate practice at Akin. Pratik has about as padded a resume as you can get, but I'm struck from our 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. We certainly cover some in that space, but this is a rare opportunity to explore the market and the business of appellate litigation. Here's Pratik.

Khurram Naik: So, I'm excited to have you here, Pratik. Your lens on practice is fascinating and you have a pretty unique story for someone who came from maybe an unlikely place to end up where you are now. And so it will be interesting to get into that part of your roots and Akin later on. But I want to begin with, you have a really unusual story that I think you've told 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 led you down a path that had a big impact in your career later.

Pratik Shah: Yeah, I would 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 going to do for that summer afterwards and I stumbled into one of those summer luncheon sessions. And this one was about judicial externships. 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 talked about the opportunities to be an extern for the summer. And I ended up submitting my resume and Judge Chabria was kind enough to share it with Judge Breyer and I was able to have that opportunity for that summer.

Pratik Shah: And that summer, 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 Judge Corley, who was Jackie Corley, was also the other clerk for Judge Breyer that year. So all three of them are now somewhat fortuitously on the Northern District bench as judges. But they went out of their way to be great mentors and help a first year law student along, and Judge Breyer was a fantastic boss. I mean, most people wouldn't be taking interest in unpaid 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. Typically that's taught in the second year. And so 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, and he said, well, Pratik, 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 kind of 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.

Pratik Shah: And that may have been the last clear memory I have of that morning. I may have blacked out, I don't know. But we had a roundtable discussion. I remember the justice sitting there, the judge sitting there, Judge Chabria and Judge Corley kind of smirking there. And it was obviously a very memorable experience for me. And I share that story, I guess, for a couple of reasons. One, obviously it had a profound impact on me to have that opportunity as a student and believe that, okay, look, I can be in these circles and think bigger about future opportunities. But also I think it said a lot about the people in that room, Judge Corley, Judge Chabria, Judge Breyer, and Justice Breyer, all of whom made that possible. They did not have to do that at all, to give that opportunity to a first year law student who hadn't taken constitutional law. What benefit are they getting out of talking to me about it? But I think it speaks to their willingness to be mentors, to be educators. And obviously it had a big formative experience in my life. I have no reason to think the justice ever remembered that encounter. Obviously I went on to clerk for him a few years later. But maybe I got the confidence 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 out with the initial shock, I could easily see something like the ego meter might go through the roof. We all met people like that in law school after just like their first semester that did well and, oh wow, now they're just like swaggering down the halls. Did that happen to you? 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. And I think something that has been a big part of my career has been the role of mentors. And it wasn't just that experience in isolation. It was Judge Chabria taking an interest and saying, hey, look, I know your background. I know how you did. Here are some judges you need to apply to for clerkships. Most law students don't have 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. And that gave me the confidence, hopefully not overconfidence, 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 experience because he is just one of the best human beings on the planet, forget judges. And then later on to Justice Breyer. So I think it had an impact in that way.

Khurram Naik: Let's start with Judge Fletcher. What's one or two practice points, maybe something very practical or bigger picture with career and how to think about it, maybe either direct or indirect? Because I can think, 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 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. What's one or two things that you take away from that experience?

Pratik Shah: Yeah. So I'll give you one very concrete lawyering tip that I still remember from the very first project that I had there that has stayed with me and that I share 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 ask for concrete things, is it was a statutory case, I remember. And 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. So a lot of us kind of do legal research, especially as young lawyers, using Westlaw or whatever and even looking up statutes online. And you read the provision and you go about it. And in that case, I remember you read the provision and you think it means one thing. And I remember Judge Fletcher telling me, yeah, this analysis makes a lot of sense and all of that. But here, if you pull the book. And he comes in with the book and he flips through the surrounding provisions, and it kind of puts it in a context that maybe, look, there's another way to read this. And so when I have statutory cases, I actually try to get the volume of the statute. And I look at books probably more than most of the younger lawyers. But I think in that specific context, there was actually value to having surrounding context that you can't just get through quick online research, but it's much easier to flip through a book and do that. So there was that sort of concrete tip that I still use in practice now.

Pratik Shah: But more broadly with Judge Fletcher, I mean, he just shows you, no matter how brilliant someone is or how accomplished, he's an Article III appellate judge on the Ninth Circuit and all of that. There just isn't a more down to earth person that you'll meet. And so you ask that question about ego. When you have models like that early on, you see someone who's so prominent and accomplished. But yet you would never know it if you saw him on the street. 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 airs. He would eat lunch with us every day and talked with us, just as you would talk to anyone else or maybe how we would talk to his kids. So that has certainly stuck with me.

Khurram Naik: And so you had this early connection with Justice Breyer. And so of course, it was obviously you could apply to the Supreme Court to clerk with him. What heading into it though, what did you think you were going to get out of a Supreme Court clerkship? I mean, it's obvious, of course, it's just what an incredible credential to get, experience to have. What a unique experience. And so there's obvious things about that, but specific to you, why, what made you say I want to do that? And what's the payoff going to be for you?

Pratik Shah: Yeah. So at the time I was thinking maybe academia. I really liked 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, maybe becoming an appellate advocate having clerked on the Ninth Circuit. That was the area of law I was exposed to, and I really enjoyed it. And so for those paths in particular, a Supreme Court clerkship becomes very helpful just because that is a credential that, whether it's in academia that 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 being a couple of the paths that I was thinking about beyond the fact, obviously, it's just an incredible experience.

Pratik Shah: Even if you wanted to do nothing related to that, even if you didn't even want to practice law, the Supreme Court clerkship is just a special year. You're two years removed from being a law student. And then you're kind of sharing chambers and talking about legal issues with the best legal minds in the country and the justices who are just legal giants. And because of the weird way in which the Supreme Court works, I mean, it's a pretty isolated existence for the justices, even probably more so back then than today, where their interaction is really with their four clerks and maybe some informal interaction with the other justices, but not a whole lot, and formulating their views. And so you have this unusual interaction where you have people who are really going to 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 be able to start grappling with some of the biggest legal issues of the day at that point in the career is just an experience that you can't really replicate. And so that, I think, is a reason for anyone to want to do it regardless.

Khurram Naik: What do you think is the single most misunderstood aspect of the Supreme Court?

Pratik Shah: Yeah, that's a good question. What I'll say is that, and this is something that I think different people may have different views, I don't think it's as true today. It was a different court when I clerked on it. That was the 2003 term. So you can see how old I am, over 20 years ago. 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. At that time, it was Justice O'Connor who was the swing vote. But think about that time. Justice Scalia and Justice Ginsburg, polar opposites, but their relationship is well chronicled. And for those who clerked at the court, that's not just made up. It is a true relationship.

Pratik Shah: The fact that Justice Breyer would go and talk to Justice Kennedy. Not always would he be able to influence him, but sometimes he would. They would have a real dialogue. Even Justice Breyer and Justice Scalia, you're talking about folks who had opposite schools of constitutional interpretation. And yet they went on a road show for the country to see, hey, look, here is how we have two different views, but here's the common ground, here's how we're different. And you could just tell that the relationships mattered. Justice Thomas said publicly that he looks back fondly on that court because he felt they really trusted each other.

Pratik Shah: And in some ways, I had the privilege of clerking for Justice Breyer, who I think in a lot of ways embodied that court. He's not someone who's interested in debater points. He's not interested in zingers. He puts a premium on relationships. He often talked about how nine people with different views managed to be so collegial. 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 that the process is working. We had the dialogue and maybe we didn't get this one, but the next time around, maybe we'll be able to persuade a majority. And it speaks to his personal fundamental decency, fair mindedness, and optimistic outlook. I think qualities that I've tried to bring into the practice that I do, but quite frankly, it's qualities that I think all of us could mirror more today. And I think a lot of the divisiveness you see in court opinions today, in writings about the court, is a big change from back when I clerked.

Khurram Naik: What is it that most surprised you about Justice Breyer?

Pratik Shah: Yeah. I mean, I don't think there's anyone 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, his being. And I'm not just talking about the judicial process, that the judges are just trying to come to the right answer. And people have different perspectives, and it's not all result oriented. I'm not just talking about that. He certainly believes that, but more broadly, he believes in our system of government. That everything should be designed to kind of strengthen the democratic processes so that people can participate in government, get their views heard. He talks a lot about law bubbling up. And it's really something to the core.

Pratik Shah: And I think in today's world, even back then, but certainly now today where everyone is jaded and everyone believes that government's dysfunctional, that little good comes out of it, that judges are just politicians in robes, all of that. That is something to his fiber that he doesn't believe. And he's not someone who hasn't been exposed to everything. He was on the Senate Judiciary Committee as chief counsel with Senator Kennedy. So he's been in the legislative branch. He's been at the highest levels of the judiciary and still he believes that today. And so that's, I guess, something surprising, but also admirable.

Khurram Naik: And what have you found, what's a perspective that you have that differs from him, a disagreement you have? Where does your worldview depart from his?

Pratik Shah: Yeah, it's a good question. I think it's hard for all of us to have that same level of optimism and faith in the system when we're confronted with today's world. And so I guess, to me, it's become more complicated in trying to have that same faith. But I try to keep some of that same optimism.

Khurram Naik: Okay. And then tell me about your path from the Supreme Court to the Solicitor General's office.

Pratik Shah: Yeah. So I taught constitutional law for a year. I was thinking about that. I then ended up at WilmerHale in Boston for a couple years. And after maybe two years there is when I applied for an opening at the Solicitor General's office. And if I had to pick, right now we've touched on perhaps the two most formative experiences early on, the third one has to be 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. Much like in the Supreme Court clerkship, I was talking about being 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. I had only argued one other case in any court, and that was an intermediate court of appeals, a state court of appeals in Maryland. And then you come to the SG's office and your next argument is going to be in front of the Supreme Court.

Pratik Shah: But you're not thrown in there completely blind, because you get the privilege and the opportunity to learn from really the best, in my opinion, the best Supreme Court advocates in the country. The deputies, the Solicitor General, are obviously always very esteemed appellate practitioners. I was the last hire of Paul Clement, which I think speaks to the truly bipartisan nature and institution of the SG's office. But there are career deputies. When I was there, Ed Kneedler is still there. Michael Dreeben was there, the criminal deputy. Both of them have well over 100 Supreme Court arguments each. And when you watch them at work, I mean, just their substantive knowledge, the way they go about it, you're really not going to get a better education in how to be a Supreme Court advocate. And so for me, that was a transformational time, from being an aspiring appellate lawyer to actually becoming one and doing it.

Khurram Naik: And we've talked before. I know there's actually, somebody might see your resume and see this kind of march of progress and miss out on some of the behind the scenes action that happens to get there. So I actually think, let's double back to that one externship, because I think that's where the story starts of how you started making connections and then how you started learning that skill set of networking, which was, I think, new to you. And so many people, but particularly as somebody without, as a first generation law student, tell me about how that journey started and I want to pick that up as you progressed in your career.

Pratik Shah: Yeah. Now, I am not a natural networker. I think those who know me well would know that. I don't think it's something I've ever really shared with a group of people, but I'll say it now. It was so kind of foreign to me that I remember at the beginning of law school, you have those receptions or career workshops when firms or other people came, I would actually, because I just wasn't comfortable approaching people and talking, I would literally write down beforehand to myself on a little scrap of paper, kind of like three bullet points of things that I thought people might find interesting or things to talk about in that context, just to make me more comfortable and not be on the spot.

Pratik Shah: And so I think I've gotten past that at least, but there are little things along the way. Like you said, go back to that first year. Judge Chabria, I do feel like I owe him a lot because he did take that interest in me, and not only with facilitating that interaction with Judge Breyer and Justice Breyer, but helping me with the clerkships when I clerked for Judge Fletcher and then later for Justice Breyer. And then it didn't end there. Along the way, I mentioned the SG's office. Someone had put me in touch with now Chief Judge Sri Srinivasan, who was just an assistant in the Solicitor General's office at the time when the opening had come open, and he was leaving the SG's office. And someone set up a phone call and I had a phone call with him about the job and then I applied for that opening and got the job there.

Pratik Shah: And then when I joined the office, there was another assistant still there who was a few years ahead of me, Kannon Shanmugam, who's one of the country's best Supreme Court advocates. And so I got to know him there. And lo and behold, as he leaves, in comes Neal Katyal as the principal deputy. And I got to form a strong relationship with Neal. And then when Neal leaves, who comes back, Chief Judge Sri Srinivasan becomes the principal deputy. Neal was the principal deputy under Justice Kagan, who was then Solicitor General, and then Sri became the principal deputy under Don Verrilli. And so I got to come full circle from that very initial conversation I had with him to actually working with him and forming these relationships.

Pratik Shah: And those folks happen to be brown, happen to be Indian, which, I think honestly it made me more comfortable to form those relationships. It doesn't obviously mean your mentors have to be of someone of your same ethnicity by any means. But for me, at least someone who 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 like that. I think it does make a difference and forms a path. I've tried to do the same for those coming after me.

Pratik Shah: I think it's an interesting niche of the bar. Obviously South Asians are growing in the law, but the Supreme Court bar is one where we've been long established now as a strong community. All the people that I mentioned, Chief Judge Sri Srinivasan before he became a judge, Neal Katyal, Kannon Shanmugam, myself, Deepak Gupta, and before all of them, and now many after me. Easha Anand, who argued like three cases last term, Jagannadha Sai, Vivek Suri, so many folks. And so here you have this little corner. And I don't think it's coincidental, a little corner of practice where through the SG's office, there's been a chain and a network 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's office compares? I mean, of course, when you're a Supreme Court clerk, that's a term. It's terminal in that way. But can you compare the experiences of training, mentorship, and so on, for the SG's office as a training ground versus the Supreme Court?

Pratik Shah: Yeah. So clerkships, I think, are great grounds because you don't have to have any stint working or any ability to do anything. It is natural mentorship. I think many judges view that as a critical part of their role. And so that's why I highly recommend clerkships, even if you have no interest in the public law, even if you have no interest in litigation. 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 for years and years to come in your career. And that just happens organically through the process. And so 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. I don't think that that is a differentiator. I think that is something that happens with all of them.

Pratik Shah: In the SG's office, it's obviously not structured in that way. This is your job. 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 form these relationships and learn. I mean, the office, I think for those who aren't familiar, is shockingly small. Sixteen assistants, four deputies, and the SG. You're talking about 20 attorneys. That's it. That do Supreme Court litigation for the entire United States executive branch and oversee all of the appellate litigation 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, you were awesome. Here's one thing you could have maybe, here's one way to handle that question differently, or you could have done this. Those are conversations that happen in the SG's office after every argument. Everyone's very supportive, but at the same time, you're kind of 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, the SG's office?

Pratik Shah: Yeah. Look, they both have great value, and at different points in your career, one might make more sense than the other. I mean, the advantage of the firm for very young lawyers coming out, and this is what I did. Early on at WilmerHale, I had the opportunity to work on the Boumediene case in front of the Supreme Court and be one of the primary drafters of that brief along with one of my co-clerks at the Supreme Court, Julian Mortensen. We got to do that with Seth Waxman. So you get these great opportunities to learn from great folks and be involved early on.

Pratik Shah: I think the differences in the government when you go out, you can get oral argument opportunities. They're more plentiful and you don't have to worry about paying clients authorizing a very junior person to do significant oral arguments. The government, that's just how it's done. And so there's opportunities there. That's something, quite frankly, in our practice, as I've come over to the private sector, that I've realized. 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 realize, look, if you want to 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, getting at least one oral argument for each of our associates every year. 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 going back to the SG's office, in one of our earlier conversations, I asked you, hey, what was an inflection point in your career, and you talked about the Defense of Marriage Act and its course at the Solicitor General's office. So can you talk a little about that?

Pratik Shah: Yeah. So the Defense of Marriage Act arose while I was an assistant in the SG's office. And up until that point, in the Bush administration, and quite frankly in the Clinton administration, the federal government had always defended 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. Like I said, it was defended during the Clinton administration, defended during the Bush 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.

Pratik Shah: And so the Justice Department put a new team, including in the Solicitor General's office, to reflect that change in position. And I was part of that Solicitor General's office team along with Chief Judge Sri Srinivasan, who was then the principal deputy. And so we worked on that case together for the federal government, in briefing. I wrote the brief challenging the constitutionality of the Defense of Marriage Act in the Windsor case, which went on, with Robbie Kaplan arguing for Edith Windsor, and Don Verrilli arguing for the United States. The Supreme Court struck down, as everyone now knows, the Defense of Marriage Act as unconstitutional, and then that formed the basis for the decision a few years later in Obergefell that recognized marriage equality as a constitutional right.

Pratik Shah: So that was a formative experience for me for a lot of reasons. Some of the obvious, it was a landmark case. But also, it was the first time I was part of a case where there were so many interested people, not just in the public at large, but even within the government. People had been defending this law for a long time. It wasn't an easy decision. It's not something the government often does, to attack its own federal law. 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 filled with people from different agencies. Watching how Don Verrilli navigated all those dynamics was a true learning experience. Working closely with Chief Judge Sri Srinivasan and developing our arguments along the way. Working with Robbie Kaplan, the great Robbie Kaplan, along the way.

Pratik Shah: And then personally, obviously, at least of that generation in the South Asian community, it's not something that was easily discussed, but I've had since I was very young an uncle who is gay and has lived with his same-sex partner ever since I was a little boy. And my grandparents came to accept that. I'm sure I was too little to know the struggles to get there. But we remain very close and I know it was incredibly meaningful for him and our family when they got married shortly after those decisions in the state of Washington. And so professionally, personally, all of those things, a meaningful case for me.

Khurram Naik: And then, I think part of what we talked about before was, the significance of that case for you was really coming into your own as an advocate and as a professional. To kind of understand your potential and understand what it felt like to be steering your career to be a leader. Can you talk a little more about that legacy for you?

Pratik Shah: Yeah. I wasn't steering the ship in that case by any means. That was Don, that was Sri. I was the one writing the briefs and developing arguments. But that did lead, you're right. It was born in the sense that that was towards the end of my tenure in the SG's office. And that's honestly what led me to start thinking about what's next. I'd been there over five years at that point. And it felt like, gosh, it's going to be hard to top this experience working on that case. I loved the job. I loved briefing and arguing Supreme Court cases. I've already talked about what a great institution the SG's office is. But the one piece that's missing from that is you aren't the one steering the ship. You're not the one ultimately making what's going to be the government's position in the case. And what are going to be the major strategy calls? That's ultimately not your call as an assistant. That's the SG's call.

Pratik Shah: And so as I was thinking about it at that point in my career, it was, hey, look, am I ready to try to take that next step and kind of be the one who's making those strategy decisions, making the ultimate calls, taking more of a leadership position in my cases and in the practice? And that's one thing that you're limited in your ability to do in the SG's office as an assistant, as great a place as it is. And so I think that's what probably got me thinking, 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 the properties were that you were looking for, and what were the right conditions 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, it struck me that there were kind of three different models or types of practices. One was kind of the large mega practice where I had been an associate, for example a WilmerHale with Seth Waxman, or a Carter Phillips at Sidley, or the late Ted Olson at Gibson Dunn, 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. So that was one model. Probably not the right model for me because I was looking to go somewhere where I could be in the leadership capacity, driving the bus, and you're not going to do that when there's Seth Waxman, Carter Phillips, Ted Olson already at those practices.

Pratik Shah: The opposite end, the second model, is the kind of free agent model, or really a firm that's interested, doesn't have an appellate practice, but wants to bring on an experienced Supreme Court litigator to either have one or to build one. And if you think about some of the New York firms that didn't historically have those, there have been a number of people who've gone on and done that very successfully. Kannon Shanmugam did it. Williams and Connolly originally. Jeff Wall now at Sullivan and Cromwell. Doug Hallward-Driemeier at Ropes. We were assistants together. And they've all been incredibly successful. And the upside there is you build it in your vision. But there is, I'm not going to talk about the stories that did not work out, because that's a big risk at those places that haven't had it. And also, you don't have that group. 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, 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.

Pratik Shah: So I think there's pros and cons to each of these, but that's how I saw it. And then there is what I view as the third, what for me was the Goldilocks model, which is, look, a well-defined appellate group, but it's small. It's not led by a former SG, it's small, it's strong, but there's room to build, there's room to grow, but it's got a foundation and it's got established appellate credentials. And I think a number of folks I would put in that category. Akin obviously is where I am now. I would put in there Jenner, Morrison and Foerster, all places like that with super high quality appellate practices and people that I think fall in between those two other extremes that I mentioned.

Pratik Shah: And for me, that seemed really appealing. 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 can be very collegial, very horizontal rather than vertical, and you can shape its direction, you can grow it.

Pratik Shah: And so at the time I was coming out, President Obama had just nominated, now Judge Millett, Patty Millett, to the DC Circuit. And so Akin was looking. She was head of Akin's Supreme Court and appellate practice at the time. And I believe she had reached out to Judge Sri 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 how we viewed things. 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 similar vision. She had hired a group of folks who were very down to earth, super smart, talented, Supreme Court clerks and all the like, but also folks who are very down to earth, which is how she is for anyone who knows her. And I just hit it off and felt very comfortable, felt like I could trust her. 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 not screw it up and hopefully build and grow it over the years.

Khurram Naik: So, you mentioned a few other peer firms that you are kind of in that same bucket, that Goldilocks spot. You mentioned Morrison and Foerster, Jenner, and I'm assuming there's maybe a few others. How would you differentiate Akin's practice from those peers?

Pratik Shah: Yeah, look, they're all great practices and great folks at them, close friends and others from the SG's office, all folks who I admire. And that's one of the cool things about the appellate community. A lot of us have filtered through the SG's office at one time or another, we do moot courts for each other as favors and all of that. So there's a lot of synergies.

Pratik Shah: What I could say about Akin is, I think we've really tried to build a culture of really putting a premium on people who like working together. 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 going to be somewhere working hard, let's do it with people you really want to be around. So it's a non-negotiable. We're going to hire the most talented folks, and we've been very lucky because we are relatively small. We hire maybe one person a year, so we're able to get the pick of the very best talent in the country. But that's not enough. Is it someone who is going to fit in with our culture and be someone you really want to interact with? There's very little management I have to do, to be honest, of our group because the people just work together so well.

Pratik Shah: And so that's, I think, been a defining feature. I guess the other thing I'll point out is the fact that we all argue cases, from top to bottom. We had our associate, Margo Rascon, who just argued her first-ever case, not just a pro bono case, but for a paid client in kind of a bet-the-company type matter in the Fifth Circuit and won. 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 paying client with a big thing into saying, hey, I'm going to 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 I think that happens.

Pratik Shah: And so 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. One of our other great talented, wonderful counsels who came to us from Justice Sotomayor is going to be arguing in the Second Circuit next week for a major case for Kodak, a big case for Kodak. And so these are the sort of arguments that our associates are doing.

Pratik Shah: And so, yeah, it's been a real privilege for me. 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 Akin. All homegrown. We've made four homegrown partners. I was the only one after Patty left here in DC. We've made four homegrown partners in my decade or so here. And that's just our philosophy. We're going to hire the very best people we can. And hopefully they want to stay. Not all do. We've had people who go into academia, want to go into the government, have all sorts of different interests. And we support them there. But for the folks who want to stay and make this their home, I think we've been able to do that. And that's not me. That's coming from a lot of support from the firm. There probably aren't a whole lot of firms for a practice of less than a dozen people that would make four homegrown partners in a decade. So that's not leverage that a big firm normally would have. But I think they recognize the value and the talent of the people that we're able to bring in.

Khurram Naik: And then help me understand, let's paint a historical picture here to get some sense of trajectory into where we are today and where we're heading. So help us understand what the market for appellate litigation would look like ten years earlier, before you joined. So you joined 2013. What would it look like in 2003? What did it look like in 2013? And what does it look like today? What are the differences at those three points?

Pratik Shah: Yeah. So I would say a decade or two earlier before I joined, there wasn't a big market in the private sector. And quite frankly, that's why in earlier times, I think people stayed in the SG's office a lot longer. There were a lot of assistants at least at the time that I joined or shortly before I joined that had been there decade plus in the SG's office. 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 the state government person. There wasn't that large specialized bar, certainly not in the private sector.

Pratik Shah: Folks like Carter Phillips and Andy Pincus and those guys on the vanguard, Seth Waxman, Carter Phillips, they started these practices in some of the DC firms. And I think slowly but surely firms caught on that, hey, wait a minute. This seems to be a high value proposition, maybe not just in the bottom line of dollars and cents, but 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 so those grew over time. All the ones that we talked about and then the new ones coming up.

Pratik Shah: So if you go back whatever 30 years ago, it just didn't exist. And then by the time I'm coming out 10 plus years ago, they're pretty well formed. And you have those different models that I mentioned. Now, fast forward, I've noticed the turnover in the SG's office. Three years, people leave. Two, three years. That was unheard of. That was viewed as no, you shouldn't be coming for that short of a stint. I was there six years. And few people stayed a little shorter, a little longer, but that was within the realm. Now I think people are leaving because there are even more sorts of variations on those models, and other things in between. And so the demand has increased.

Pratik Shah: I think there was always a concern. I even remember when people said I was coming out. They're like, geez, the market looks pretty saturated for Supreme Court appellate advocates and I'm not sure what the opportunities really are. And yet year after year people come out, find great jobs, succeed. 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. Thirty years ago, before managed docket jurisdiction, there were 150 cases being argued. Back when I clerked, 85 cases. Now this past term under 60. So it's a smaller set. Outside of maybe Paul Clement or someone, there aren't a lot of people arguing half a dozen cases a term anymore.

Pratik Shah: But what's happened is that it's really become a developed practice in the courts of appeals, federal courts of appeals. Now in virtually any high stakes appellate dispute, I'm seeing one of my counterparts from the Supreme Court bar on the other side in circuit courts across the country. And so the Supreme Court bar's primary practice for all of us is in the federal courts of appeals. And then that's become an area where, again, I think in high stakes cases, more often than not, you'll see folks with that background doing it, which firms recognize, which clients have recognized, and that's been a driver of growth.

Pratik Shah: And then the other reason why I think the demand continues to increase is regulatory litigation. Not even appeals at all, but they look a lot like appeals. There's no discovery. And that area has really exploded. And honestly, with all the changes, both in terms of how the agencies have been acting, but also the changes in the Supreme Court jurisprudence, no Chevron, major questions doctrine coming along, the judiciary much more skeptical of agency action, federal agency action. So clients challenging agencies' rules, regulations, in all sorts of areas, healthcare, trade, environment, securities, labor, all 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 work just like appeals, all oral arguments. And then they work themselves up the chain fairly quickly. So the practice has diversified. I've seen that even in my 10 years doing it. I did virtually none of that in my first five years at Akin. And now we do a whole lot of it. 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 a new frontier of disputes around regulatory disputes. And part of it is there was an existing matter, let's say appellate work, there's less Supreme Court matters to argue. But I haven't seen numbers on appellate activity. Has appellate activity changed much, say in the past decade or so? Of matters going to the appellate courts?

Pratik Shah: Yeah, I don't know the statistics on that. What I would say, though, at least anecdotally, 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 much more often in prior times. 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 high stakes disputes, as I said, I'm seeing more and more of my counterparts on the other side or the same side of those types of cases. So I think that's been a related development.

Khurram Naik: I think it's interesting to note that in so much of the story you're describing here is one of mobility. It's the SG's office and how tenure is dramatically shorter than before. 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 appellate counsel. That's interesting. That's just an interesting story to note. You see this in the legal market as a whole, there's a lot of mobility. Associates, some counsel, some partners, just in every aspect of legal practice and private practice, you're seeing just greater mobility of lawyers and of matters it looks like.

Pratik Shah: Yeah, I think that's right. There's no 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 yeah, with matters as well. And it's also with the increasing specialization, that's not unique to appellate law. It's in the law in general. But I think the appellate practitioners have benefited from that in that I think clients want to go to the experts for appeals, and it even gets more segmented. Patent appeal specialists, or people who do administrative law appeals, and all of that. So I think that has also been a contributing factor, increasing specialization for sure.

Pratik Shah: The one other area I would mention probably why firms have found it valuable and you've seen this increase is in pro bono cases. I think firms do find value in being part of that, both as a part of the professional duty of being a lawyer, but also in terms of those being often cases that get a lot of attention and bring positive attention to the firm. I mean, we've historically, and we're not unique among appellate practices, although I do think we tend to emphasize it a whole lot here at Akin, but we've always litigated kind of big pro bono cases over the years, whether it's in, and depending on the firm's bent and maybe the leadership's bent, that might look different, what you define as your pro bono cause. But for us, it's been civil rights, immigration rights, LGBTQ rights.

Pratik Shah: I had the privilege just two days ago to second-chair an argument, which I haven't done in a while, but 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 Tennessee's ban on gender-affirming care for adolescents. Which was honestly just an incredible experience for me, just being able to work with Chase closely and play that supportive role for a younger lawyer. And he's truly a trailblazing lawyer. He's been litigating these cases around the country. But to work closely with him, and he did an incredible job, and our Solicitor General Elizabeth Prelogar did an incredible job arguing that case.

Pratik Shah: But from the firm standpoint, it's just, to be somewhere where that, I feel really lucky to be an appellate, Supreme Court appellate lawyer. And our practice, I think, feels really lucky because that's just a part of it. It's not like we do that in addition to our job. Often the hours, if you look at our hour-matter hours, some of the heaviest matter hours are Supreme Court cases that we've taken on along the way. In any given year it might be a pro bono, non-billable case in that sense, but that's just part of the practice. We don't differentiate. That's just part of the practice and it's one of the best parts of being an appellate lawyer.

Khurram Naik: Well, you hear from some lawyers a lot of the time that there are firms that have policies around pro bono hours and credits, but at least tacitly and sometimes counter to those rules, there's overt communications about, hey, just limit how much pro bono you're doing, 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 confirming this is still valuable to do? The practice group, that we are still getting compensated for this in every sense. How do you do that? It's such a unique position to ask for substantiation of something that is not revenue generating.

Pratik Shah: Yeah, I think the firm sees the value in it. We've been doing it for a long time and they keep making partners in our group and keep investing as well. So I think they see the value. But I don't want to take it for granted. You're right. Not all firms make that calculus. That's why you don't see marquee appellate practices at every firm, or even firms that have them, you don't see the level of pro bono stuff that we do or some of our peers do. Because I do think we have a leadership that is extremely supportive, that truly believes in it. The chair of our firm is on the board of the LDF. And so I think there is that. It's going to depend firm to firm. And so I think if you're thinking about which firm to go to as a lawyer, that's something to think about, the track record and all of that, because it isn't a given that that's going to be viewed as a high value proposition.

Pratik Shah: Now, of course, we're adding value in all the other ways that I said. The high stakes disputes in the courts of appeals, those are not pro bono cases by any means. When you're getting hired to do those cases by the NFL or SpaceX or whoever it is, McDonald's, whoever our clients are, those are important cases for those clients, important for our firm. And we're able to do stuff that strengthens the other areas. You may say, okay, well, our practice might not be the most profitable, but what we do strengthens the most profitable practices at the firm. I argued the Purdue bankruptcy case, the opioid bankruptcy case, for the victims of the opioid crisis. That is a representation that our bankruptcy group, one of the largest in the country, had been doing for years and years. And in the trade practice, we have the largest trade practice in the country at Akin. And we in the appellate group are leading the challenge on the China tariffs, in the largest section 301 trade litigation in the history of the Court of International Trade. So we're able to add value to the marquee business, profit-generating practices that I think the firm can see in that way, even if we at the end of the day aren't ourselves generating it matter after matter.

Khurram Naik: And then can you speak to origination, because you talked about at least one matter was a product of matters referred from other practice groups. Tell me about the landscape of other practices that are destination practices for appellate matters, because you talk about this concept of now more than ever you're seeing that trial counsel is not necessarily becoming appellate counsel. So it sounds like there's becoming a market for appellate counsel for certain kinds of matters. And certain courts especially require more expertise, like the Federal Circuit has got its own jurisprudence and quirks, and there's a beneficial subset of knowledge of say patent law. So how do you see appellate practices approach business development, just broadly speaking? I guess that's the big picture question, and this question of originating work is part of that.

Pratik Shah: Yeah, so I think appellate is unique in that sense in that I view it as there's two bases to business development. There is internal and external. A significant part of what we're doing, I would say at least half, is still internally generated. Matters that folks in our various other practice areas at the trial level are handling, whether that's IP, like you mentioned, or trade, or labor, or Indian law. We do a lot with our Indian law practice. So forming very close relationships with some of those strongest practice groups within Akin that generate high value work at the trial court level. And so that's an important part, forming relationships within your firm with the people and groups that have the sort of work that is going to generate and justify hiring a high end appellate shop to do it, or that will even be pursued on appeal, whether that's to the court of appeals or Supreme Court. That is an absolute important, critical part of, I think, success of any big firm appellate practice, forming those relationships.

Pratik Shah: And it works, I'm sure, differently within each firm. Like I said, I had the blessing of coming after Judge Millett here who had formed a lot of great relationships and credibility within the firm for us. And 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. Over time you develop clients, even if they don't use Akin for some of those other practices. When they have a high stakes dispute or an appellate dispute, or quite frankly regulatory litigation, I mentioned that. That originates in the district court. So they may just come to us. A lot of industry associations, we have relationships with the Chamber of Commerce and others, might come to us directly to handle those. 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 yeah, the big difference is I think we, at least I view it as, I have this internal and external business development that's necessary to really have a successful appellate practice.

Khurram Naik: And what do you do personally for external business development activities?

Pratik Shah: Yeah, it's different now than when I first started. When I first started, I had never been a partner at a firm, let alone leading a practice or anything like that. Judge Millett was hugely helpful in that and flying around with me to meet all the clients. I just remember the first six months being a blur because I was always meeting clients and giving talks and doing that. And quite frankly, in the government, no one knows who you are. Nobody publicizes anything you do when you're in the government, at least back then, before all the blogs became prominent. 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 10 years. And so that part of it becomes easier. You don't have to be out there promoting and meeting with clients. People start to come to you, which makes that easier. But still, I'm doing a lot of talks, especially at the end of the term, beginning of the term, that summer season 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. There's still briefing and all that going on, but argument prep time goes down. And I replace that with doing talks on the Supreme Court, on appellate advocacy. I really enjoy that. It also happens to have the benefit of getting you in front of lots of different groups, clients, whatever it might be, bar associations, law schools. It exposes you and things happen in mysterious ways. You would never guess some of the ways in which work ends up coming back to you. And so I think that's all part of the process.

Khurram Naik: What part do you enjoy the most?

Pratik Shah: Oh, yeah, probably doing the talks on the Supreme Court. It's an area of, basically my entire career, I've been watching the court and doing it. It's still something I find fascinating and I really love what I do. Don't tell the firm this, but I would do this probably for a lot less. And so it's something I really naturally enjoy. I'll be, for the first time actually since I taught constitutional law after my Supreme Court clerkship, I'm going to be teaching a class this spring at Georgetown Law School on constitutional litigation and the executive branch with Josh Matz. And 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. It starts this spring semester. I mean, it's not going to be a true first year constitutional law class. It's going to be a seminar that talks about case-specific examples of constitutional litigation against the executive branch. And I will certainly be incorporating some of my own cases, which hopefully will help in reducing prep time and still making it more interesting for the students, since I can share some actual firsthand experience.

Khurram Naik: How has the experience of teaching impacted your career? Compared to someone who hasn't taught the way that you have, how is your practice different than somebody who wouldn't have had that experience?

Pratik Shah: Yeah, I mean, probably not a lot. There are some, I'm not going to say it categorically, there are a few academics who can be and make good appellate practitioners. I think Toby Heytens is a great example. 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. 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 at the Supreme Court, you're trying to reconcile precedent and history, the things that the court is interested in, not necessarily your academic theory. And so I'm not sure that teaching has a big impact on how I practice. Having taught, and again, it's been now gosh almost 20 years since I last taught. So I can't say that. But we'll find out, maybe it'll make me a better appellate practitioner after reteaching this spring. So we'll see.

Khurram Naik: So I want to, speaking of education, I want to 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 true threads that sent you on your way? Because I think in many ways, learning about the earliest years helps us understand that your outcome was, it seems like, less predetermined and subject to some early luck and some benefits you received then.

Pratik Shah: Yeah, yeah, and I'm happy to talk a little bit about that. I grew up, as you I think mentioned at the beginning, in Akron, Ohio. And that's where I was born and raised. Like many folks in our generation who grew up with parents who immigrated from South Asia, my parents from India, grew up in a working class neighborhood in Akron, stayed in the same house all the way until after I left for college. Not great schools in our area. I was the only Indian kid in my elementary and middle school. I had a great experience, I will say, and there were challenges along the way. But my brother, who was five years older, I think had the foresight. He went to the high school in our area which really wasn't doing well. And I'm thankful for his foresight. He told my parents, you can't send Pratik there.

Pratik Shah: And so I ended up going to a Catholic high school in Akron, even though I'm not Catholic, never been to a church, and I'm raised Hindu and Jain. But for the education, I ended up going there. And I do think that had a big influence on where I ended up after that. It was a great academic experience there. I ended up applying to Princeton and going to Princeton for college. A large part of that was the fact that my Masi lived in Sayerville, New Jersey. And so that gave everyone comfort that we had someone close by. But I did end up going to Princeton from there.

Pratik Shah: And in a lot of ways, having grown up in Akron where I was the only Indian kid in my elementary and middle school, but we had a small Indian community, on the order of maybe a dozen Gujarati families who lived in Akron who kind of spent the weekends together growing up. I'm still in touch with some of the kids who I grew up with back then on those weekends. It was kind of a second world almost. Princeton felt a little bit like that to me. Not just in the South Asian versus non-South Asian sense, but just in the cultural sense, in that it 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 more disadvantaged backgrounds. But there were also a lot of kids from boarding schools and elite schools and all of that. And so 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 Princeton. I'm sure it's much larger now, but back then, a small group.

Pratik Shah: 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 I found very helpful just given my personality, and allowed me to grow and think about other things. A lot of people who do engineering there don't go on to be engineers. And I was kind of in that boat. I did engineering but didn't want to be an engineer. And it wasn't the most certainly educated decision. But after that is when I ended up in law school. So it was an unlikely, I guess, trajectory in some ways.

Pratik Shah: But if I had to pinpoint, my big brother back then saying, hey, let's send him to this school and open up some opportunities. Made it to Princeton, opened up more opportunities. It's not a story unique to me by any means. All made possible by the parents taking the true leap and coming to this country. And allowing those other much smaller leaps or steps to happen. But 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 yeah, that's a little bit about how I got to where I ended up.

Khurram Naik: And look, I mean, you went to Princeton and there's many people who came from very privileged backgrounds. But that one particular part of your story is that you happened to make a list with one Judge Breyer who knew another Judge Breyer. So those are, what are the odds? These two siblings both had the position they had in society. So there's pools of people that had these kinds of outsized performance and we can spend a lot of time talking about whether that's nature or nurture or whatever. But the point is that there's some groups of people that do have some advantages in terms of relationships and networks. And some of what you were talking about early on is that, hey, you were not a natural networker. You had to kind of figure this out from scratch and you had this early version of three bullet points you wrote down to have these conversations with. So I guess I'm curious as a big picture question. Compared to some of those pedigreed peers, the peers who did have the ties to lawyers and did have some insights into, here's how you choose a law school and here's how you think about feeder judges, and all these other kinds of insider information that among comparably talented peers is a differentiator in terms of outcomes. What are the advantages of not having those advantages?

Pratik Shah: Yeah, I mean, 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 Berkeley law school 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. I didn't know about clerkships. I just didn't know that. And so I didn't have any preconceived notions. Whereas I guess if I had come in with a lot of people who knew about things and maybe, I want to be some corporate securities litigator and I wouldn't have considered anything else. I would have gone down that path and done the things that led there and not kind of stumbled into this path that put me on a trajectory to become a Supreme Court appellate advocate. And so I think there are advantages. You do that.

Pratik Shah: But it is, and I'm sure it's true in every field, the law is the one that I know. It's an opaque process, like clerkships. How do you go about even deciding who to apply to? How do you make that happen? And it can start pretty early on with your grades from the first year. But I think when we were in law school, I think you applied just after your first year. So you only had a year of grades. How do you figure out how to do that?

Pratik Shah: And so finding mentors is, I think, a hugely important thing. And we had at Berkeley, like all law schools, our affinity groups, which were strong. It was in the aftermath of when they had ended affirmative action. So the affinity groups placed particular emphasis on those communities. And that played a role with me, as I mentioned, meeting Chabria and having his input and other students there. I think it is super important. Now we have, I think, many more formalized ways in which to do that. There's the Appellate Project, a great organization that matches up first generation law students and 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 I do think it's an important thing to help shed light on what can otherwise be a pretty opaque process.

Khurram Naik: So, speaking of opaque processes, I think a lot of people don't understand the behind the scenes about how the Supreme Court makes their decisions, how ideas are socialized, and how they end up drafting their opinions. And so you, as a clerk, have a unique perspective on the court. And I recognize the court has changed in terms of how they worked together and worked on their opinions. But it would be hard to miss this opportunity to ask you about advocacy and your principles for advocacy. So let's start with briefing and oral advocacy. Let's start with briefing. Tell me about, at the highest level, what are 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, you want to build a narrative so that the court wants to rule for you. And here we're talking about Supreme Court briefing. Almost never do they have to rule for you. They're the Supreme Court. They can change the precedent. They can do anything they want as broadly or narrowly as they want. So if we're talking about Supreme Court briefing, you really need to come up with a narrative that makes them want to rule for you.

Pratik Shah: Now, how that's done is going to depend a lot on the case. There are a finite set of tools that you're working with. In some cases, it may be the precedent on your side. In other cases, it may be the text on your side. In other cases, maybe neither of those are on your side, but you've got policy and common sense and equities on your side. So depending on what sort of case it is and which tools are going to be strongest for you, it's shaping that narrative around whatever tool is going to 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, which is maybe different from briefing before the lower courts.

Khurram Naik: And then in terms of, you've got this raw matter from the trial court. 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? What is a high level principle you're using for prioritizing arguments? And at a really high level, how do you sit down? What is your order of tasks, your approach to understanding the subject matter you're working with and how you're going to present it?

Pratik Shah: Sure. So I think what most appellate lawyers will tell you, and certainly I'm a believer in this, and again this is not true for all cases, but generally speaking, you're looking for legal issues. Issues of law. A lot happens in trial. And I think this is really the value of appellate lawyers. Sometimes it's easy to get stuck into the facts and the morass of what happened and wait, this was found wrongly against me or my client, or 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 pure issues of law. So trying to figure out, okay, here's everything that happened. What is the best legal issue that I can present? And I can weave in the equities and the facts and all of that. Let me distill this to two, and I don't want ten, I don't want eight. I want like, give me one, two, max three, in terms of questions presented in an appeal so that the judges can really focus on 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? Like let's say there's three arguments, what is a further principle you might use for organizing?

Pratik Shah: Yeah, a lot of that's going to depend on the case, but at the highest level, and this is not rocket science, always start with your strongest argument. Even if it might not logically always be in that way. But 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. Let's come out with what is our strongest argument and let's make it. And even in that, like I said, I want one, two, or three max issues in an appeal. And then that gets even funneled further by the time of argument. I want to be trumpeting my best argument now. Maybe there are times to pivot if a judge happens to be 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. And then by argument, the idea is to have it really distilled to what is your best argument.

Khurram Naik: And do you have a formula for how you prepare for oral argument?

Pratik Shah: Yeah, that's changed over the years. In the early years, in the SG's office in particular, when you're getting ready for argument, I used to, for example, one of the things I used to do is I used to write out questions. And I would do Q and As. And I still do that to some extent, perhaps less than I did then. You would write out all your Q and As. But the thing that was different back then is I would actually put those questions, write out those questions on pieces of paper or note cards or whatever. And I would give them to my wife, who is not a lawyer. She's a pediatric oncologist, has little patience for legal discussions and even less patience for me.

Pratik Shah: And so I would give them to her. And this was in the pre-kid era, before we had kids. And she would randomly pick out one of the cards, ask me the question. And without fail, after about 20 seconds of me talking, she'd be like, I'm bored, move on. And so it would force me really to crystallize my answers into succinct nuggets.

Pratik Shah: Now I'm going to sound really old, but I'll say, back in the old days of those Supreme Court arguments, before the post-pandemic changes where they changed the format of arguments, that was truly the challenge, because the questions were relentless. There are still a lot of questions in Supreme Court arguments if you listen to them, but they were really relentless in those 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 sound like an old man, but back when Supreme Court arguments were really hard and challenging. They're still hard and challenging, but that was a particular skill.

Pratik Shah: And so that was something I used to do, answer questions that way. And then now, once we had kids and all of that, that all fell by the wayside. And I fell into my preparation and doing a lot of the same things. Obviously, I'm going to reread the briefs closely. I'm going to come up with my few key Q and As. All of that I still do. The most important part of preparation, though, which is true then and 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. But it really started in the SG's office. We 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. They pick up the briefs. They read them just like the judges would. And you do 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, on the topic of what you trained at and learned at the SG's office, and you trained with people like Seth Waxman, you trained with people like Sri Srinivasan, how does your style differ from some of these key influences?

Pratik Shah: Yeah, there are different styles, obviously, of Supreme Court argument. You've got to be true to what you're comfortable with and your personality. I mean, Paul Clement, who hired me, who's kind of one of the best Supreme Court advocates of his generation, I think Justice Kagan described, I think the words she used are heaters and chillers. He tends to amp up in an argument, amp up the energy, a very lively argument style. And then on the other side of the coin, there are people who tend to be very tempered, very measured in the way that they're arguing cases. I think of Leondra Kruger. We were assistants in the Solicitor General's office together. She's now a justice on the California Supreme Court. But if you go listen to one of her arguments, very soft spoken, brilliant arguments, but just bringing the temperature down and calm, cool, and collected no matter how pointed or how aggressive the questioning might be.

Pratik Shah: So I've tried, I've learned from watching all of those folks. Some things you can imitate, some things you can't, and some things you have to be true to your style. I guess others would probably be better suited to describe where I fall in that spectrum.

Pratik Shah: I will say though that sometimes you have to adjust for the case, the type of case that you're arguing. The example that comes to my mind, which I think was out of my normal style, out of my comfort zone, was the Purdue opioid case that I argued last term. I was arguing on the same side, and I think there are different variables you have to keep in mind when you're an advocate, but I was arguing on the same side with Greg Garre, who's representing Purdue. And Greg by personality, Greg is a phenomenal advocate. He was one of the five Solicitors General who I served under. And just an awesome person, very low key, that is Greg, measured, methodical. And quite frankly, representing Purdue, that probably fit appropriately with the demeanor there, answering questions in a low key, methodical way, sticking to the law.

Pratik Shah: I was arguing with him on behalf of all the opioid victims and all of that. And so I knew that my role was really to channel the victims' voice. And so I think it's Justice Kagan who said during that argument, wow, Mr. Shah, you're being very emphatic. And so I think she recognized that it was not my normal style, but I think it was the right thing to do for the clients there. And the right message to send for the court, to get across the equities and the importance of the case there. So I think there are going to be different styles. Great advocates have different styles. So there is no one style. 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. Justice Kagan knows your style. What do you think is the actual impact of you varying how you approach the case? Okay, you're choosing an emphatic style, which makes sense. It matches the demographic you're serving. And just so too, the corresponding, Purdue is chastened by all its impacts 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. So it makes sense that you chose that style. But what do you think actually was the impact of choosing a different style in that moment?

Pratik Shah: Yeah, well, I don't know, you'd have to ask the justices. We still came up a vote short. But I think it allowed us to communicate some very important points that were reflected, unfortunately for us, in the dissent, but came through and I think impacted the questioning that the justices did. 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 got to kind of do what makes sense to you and hope that that resonates with the justices.

Khurram Naik: Well, maybe, and again, with the repeated caveat that the court has changed over time and in composition and how it operates. But at the time of your clerkship, what was the practical impact? Help us understand what really happens at oral argument and the practical impact that has on shaping judges' decisions.

Pratik Shah: Yeah, I think different judges will say different things. I think what you typically hear, which is what I tend to agree with, and this may differ a little bit between the Supreme Court and lower courts, is that I think oral argument generally makes a bigger difference in the courts of appeals than it does the Supreme Court. And you can kind of probably see why. In the Supreme Court, these are justices who have very well formed views. 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 as to 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.

Pratik Shah: You can lose a case at oral argument pretty easily by making bad concessions and making mistakes. I think it's less common for you to be winning cases at oral argument. But it does happen. And so obviously, you want to be as well prepared and positioned as you can to maximize the odds of that happening.

Khurram Naik: 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's just something that you don't want to do. I don't think you prepare not to give away the case. I've seen it happen a fair bit. But I think that just comes with the territory as an advocate. No, you're trying to frame the case in the best possible light for your client, for your position. 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 I think that's the biggest role, your biggest role in oral argument.

Khurram Naik: Look, I mean, from what you describe about your appellate practice, it seems like even with all the changes you described, increased mobility and then increased competition, all things considered, an appellate practice still seems very glamorous. So what are the reasons why a skilled litigator, maybe someone who clerked Supreme Court, let's say, what are reasons why someone might pursue a trial court practice rather than an appellate practice?

Pratik Shah: Yeah, that's a better question for the trial court litigators who you interview. Whatever I've heard over the years is some will say, oh, well, appellate litigation is like playing tennis without the net. I mean, you don't have that challenge of all this stuff that goes on in a trial court and the back and forth and the cross-examination, and all those kind of, I guess, My Cousin Vinny moments or whatever.

Pratik Shah: To me, 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, discovery disputes or nasty grams between lawyers over all sorts of things. That is by and large absent from an appellate practice. Usually the only things you're procedurally fighting over are like briefing extensions, which usually everyone agrees to, or things like that. There just isn't that much to fight over other than the substance of the case.

Pratik Shah: And so, now, the one change for me, as I mentioned, the last few years doing regulatory litigation in the district courts, I've now encountered that more. And that's reaffirmed my belief that I chose the correct path being an appellate lawyer because I don't enjoy those fights over procedural things and timing and preliminary injunctions and all of those things that seem much less orderly and don't really go to the substance of the legal issues in the case.

Pratik Shah: The other 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, I often see them in the courts of appeals. You have that personal relationship. And so that also, I think, makes it much easier in communicating, and there's a lot less of the games and nastiness and all of those things that I think are more common in other types of litigation.

Khurram Naik: Okay. So still basically only reasons to be an appellate lawyer. Okay. Got it. So for all the associates who are listening to this, or maybe law school students or even earlier, who are considering a path to appellate litigation, how do you even think about guiding someone about that? So we already know someone has the intellectual prerequisites and dispositions to enjoy the kind of subject matter of appellate litigation. We've already covered why to pursue it. Maybe more tangibly, how to pursue it.

Pratik Shah: Yeah. Appellate is a field in which there is, in many ways, kind of an established track. And so it's a pretty known path that you can follow and embark on if that's something you want to do. Clerkships are the starting point. And in particular, clerking for some sort of appellate court is, I think, an important step in that process. And so I always emphasize to anyone who's interested in becoming an appellate lawyer to really think hard about clerkships and doing a clerkship and taking it from there.

Pratik Shah: Now, there have been circumstances, but they're unusual. I mentioned Margo Rascon earlier, one of our associates who argued in the Fifth Circuit. And she came to us from Georgetown directly having not even clerked yet. She had done night school at Georgetown and gotten some bad advice that, oh no, night students aren't going to be able to get good clerkships or whatever. But then she took a class with Judge Millett, who was teaching there. And I think Judge Millett told me like, she's the best writer she's ever had in any of her classes. And so we brought her on. She was fantastic. And then once she was here, she applied for clerkships and got an A-plus clerkship, Judge Colley and Judge Kethledge on the Sixth Circuit, and then came back here. So there are ways to get around it.

Pratik Shah: But the typical path, you do your clerkship. And then you'd think about joining one of those appellate practices. Obviously, a Supreme Court clerkship would be great. And then 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. The Department of Justice, outside of the Solicitor General's office, has stellar appellate components in the civil division, the criminal division, environmental division. Various components within the Justice Department have their own appellate sections. They have an honors program to take young lawyers. And you get to start arguing cases very early on in the federal courts of appeals.

Pratik Shah: State Solicitor General's offices, 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 the federal Solicitor General's office. 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 the appellate space. So I think in some ways there are more opportunities than there used to be.

Khurram Naik: Why did state Solicitor General's offices arise? Why didn't they happen before?

Pratik Shah: Yeah, same development. Increased specialization, realizing the value of having these. And now you'll see a whole bunch of states with former Supreme Court clerks and others as their state Solicitor General. Often pretty young lawyers as well, which is opening opportunities for younger lawyers to take leadership opportunities in that avenue. And that's red and blue states. You've seen that phenomenon in both. And that's been part of the trajectory in this increase. In the Trump administration, blue states taking the lead in challenging Trump policies. In the Biden administration, red states taking the lead. Those suits by and large being led by the state Solicitor General's offices, who have now become pretty high powered appellate shops.

Khurram Naik: Well, so it sounds like, you make all these joking references to how old you are and how ancient your experiences. But what I'm struck with is, I think probably Justice Breyer did have an impact with your optimism. You really are someone who any number of people would be tempted to describe changes as for the worse. But I haven't heard you describe the overall trajectory of the appellate bar in any of those words. There are challenges and there are things maybe that you disagree with. But overall, it just creates more and more opportunities for litigators to develop their craft and develop business. So I think I'm struck with that optimism that you have. And I'm glad we sat down to talk.

Pratik Shah: Yeah, it's been a lot of fun. Thank you, Khurram.