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Appellate Advocacy 2012

Speaker(s): Beth S. Brinkmann, Brian R. Matsui, Cate Stetson, David M. Gossett, E. Joshua Rosenkranz, Hon. Theodore A. McKee, Kathryn A Oberly, Mark D. Harris, Richard B. Rosenthal, Scott A. Chesin
Recorded on: Mar. 21, 2012
PLI Program #: 35482

Hon. Kathryn A. Oberly (Washington, D.C.), was appointed to the District of Columbia Court of Appeals in 2009, by President George W. Bush.  She attended Vassar College from 1967 to 1969, and, after transferring to the University of Wisconsin, earned her B.A. in Political Science (with Honors) in 1971.  In 1973, she received her law degree cum laude from the University of Wisconsin Law School, where she was Articles Editor of the Wisconsin Law Review. 

Judge Oberly served as a law clerk to the late Honorable Donald P. Lay of the United States Court of Appeals for the Eighth Circuit and later moved to the District of Columbia, where she served as an appellate lawyer in the Land and Natural Resources Division of the U.S. Department of Justice and then as an Assistant to the Solicitor General of the United States.  She entered private practice in 1986 as a partner in the Washington, D.C. office of Mayer, Brown & Platt.  In 1991, she joined Ernst & Young's Washington office as an Associate General Counsel, in charge of the firm's appellate and special litigation. In 1994, she was appointed Vice Chair and General Counsel of Ernst & Young, a post she held until her appointment to the District of Columbia Court of Appeals. Among other civic and professional activities, Judge Oberly is a member of the Council of the American Law Institute. 

Brian R. Matsui is a partner in Morrison & Foerster LLP’s Appellate and Supreme Court Practice Group. He represents clients from a diverse set of industries in appellate litigation in both federal and state appellate courts.

Mr. Matsui has substantial experience in the federal courts of appeals, having represented clients in appeals in almost every federal appellate court.

Mr. Matsui has briefed and argued many cases in the Federal Circuit. In particular, Mr. Matsui has significant experience on appeals to the Federal Circuit from decisions from the Patent Trial and Appeal Board. He has argued patent appeals on behalf of companies in varied industries including mobile device manufacturers, pharmaceutical companies, medical device companies, memory manufacturers, movie studios, and software companies.

Additionally, Mr. Matsui has extensive experience arguing and briefing appeals in the Ninth Circuit on a wide range of issues. Recently, he has represented leading financial services companies in appeals throughout the nation and prevailed in a D.C. Circuit appeal against the Securities and Exchange Commission involving the retroactivity of certain provisions of the Dodd-Frank Act.

Mr. Matsui has been involved in more than 35 cases before the Supreme Court of the United States. He has had a lead role in the briefing of merits cases involving the interpretation of the Federal Aviation Administration Authorization Act of 1994, the Bankruptcy Code, the Patent Act, and the Dormant Commerce Clause.

Mr. Matsui also dedicates significant time to the less fortunate in pro bono practice. He led the Morrison & Foerster team that was co-counsel for petitioner Terrance Graham in Graham v. Florida, 130 S. Ct. 2011 (2010)—in a successful Eighth Amendment challenge to Florida’s imposition of a “life without the possibility of parole” sentence to a juvenile offender convicted of a non-homicide crime. He also successfully represented a putative class of foster care children in a high-profile abuse and neglect case in the Ninth Circuit in Henry A. v. Willden, 678 F.3d 991 (9th Cir. 2012).

Prior to entering private practice, Mr. Matsui clerked for Justice Anthony M. Kennedy of the Supreme Court of the United States, Judge Pamela Ann Rymer of the United States Court of Appeals for the Ninth Circuit, and Judge David F. Levi of the United States District Court for the Eastern District of California.

Mr. Matsui previously chaired (from 2012-2015) the ABA’s seven-person Standing Committee for Amicus Curiae Briefs, which oversees preparation of ABA briefs for filing before the Supreme Court and other courts. He is currently a member of the amicus curiae committee for the American Intellectual Property Law Association, and he was the co-chair of the amicus curiae brief committee for the National Asian Pacific American Bar Association. Mr. Matsui previously served a three-year term as an Appellate Lawyer Representative for the Ninth Circuit, having been selected by the Court of Appeals for that position. Mr. Matsui served as a board member for the D.C. Circuit Historical Society.

David Gossett is the Assistant General Counsel for Litigation at the Consumer Financial Protection Bureau (CFPB). In that role, he leads the group of lawyers who defend the Bureau in litigation - including cases challenging the Bureau's rules and regulations as well as other defensive litigation - as well as handling all appellate and amicus litigation for the Bureau. Before joining the CFPB in August 2011, David was a partner in the Supreme Court and appellate litigation practice at Mayer Brown LLP, where he had a particular focus on administrative law, constitutional law, federal preemption, class actions, and arbitration.

David has repeatedly been recognized as a leading appellate lawyer. He was selected by his peers for inclusion in the 2009, 2010, and 2011 editions of The Best Lawyers in America® in the specialty of Appellate Law, listed in 2011 edition of Washington DC Super Lawyers, and in 2006 was recognized by Washingtonian Magazine as one of the "Top 40 Lawyers Under 40" in Washington. He is an elected member of the American Law Institute (ALI), and is one of the founders-and the Executive Editor-of the Green Bag, a quarterly law journal. He graduated with high honors, Order of the Coif, from the University of Chicago Law School, where he was an editor of the University of Chicago Law Review. He received an M.A. in experimental psychology from the University of Pennsylvania and his B.A. from Reed College. He clerked for the Honorable Diane P. Wood on the U.S. Court of Appeals for the Seventh Circuit.

Scott Chesin is a partner in the Supreme Court and Appellate practice in Mayer Brown’s New York office. He handles appeals in state and federal courts throughout the country, and he regularly partners with trial lawyers at Mayer Brown and at other firms to develop legal strategies applicable to all phases of litigation: pre-trial, trial, post-trial, and appeal. Scott has experience litigating a wide variety of substantive legal issues; his particular areas of interest are product liability defense, punitive damages, and criminal defense. According to Legal 500, Scott is an “appellate specialist” who comes “highly recommended” by clients. In 2013, the New York Law Journal named Scott to its list of “Rising Stars” – lawyers under 40 who are “top contributors to the practice of law and their communities.” He has been listed as an appellate “Rising Star” by New York Super Lawyers since 2014. Also in 2014, he was appointed by the Second Circuit to its Criminal Justice Act panel, through which he accepts court appointments to represent indigent criminal defendants on appeal.

Scott’s appellate practice is national in scope, with a particular focus on New York-based matters: since joining Mayer Brown in 2004, Scott has argued appeals in the U.S. Court of Appeals for the Second Circuit and the Appellate Divisions for the First and Second Departments; he will argue his first case in the New York Court of Appeals in September 2015. Scott has authored approximately 75 appellate briefs, including approximately three dozen filed in the New York appellate courts (the Court of Appeals, the Appellate Divisions, and the Second Circuit), and others filed all around the country (including in the U.S. Supreme Court, the U.S. Courts of Appeals for the Fifth, Seventh, Eighth, and Eleventh Circuits, and multiple state appellate courts.

In addition to handling purely appellate matters, Scott regularly briefs and argues complex issues at the trial-court level. In the past four years, Scott has served as lead legal strategy counsel during ten highstakes jury trials. In addition, he has handled pre-trial motions practice and appellate preservation for over a dozen other cases that have either gone to trial or been resolved prior to trial. As legal strategy counsel before and during trials, Scott handles all aspects of appellate preservation, including drafting and arguing motions in limine, dispositive motions, directed-verdict and post-trial motions, proposed jury instructions and verdict forms, and exhibit objections. Scott regularly publishes and lectures on the subject of appellate preservation.

Scott received his J.D. from Columbia Law School, where he was a James Kent Scholar and a member of the Law Review. He received his A.B., cum laude in History, from Harvard College, where he won the Wendell Phillips Prize for the most promising orator in his class. Following graduation from law school, Scott served as a law clerk to Judge Pierre N. Leval of the U.S. Court of Appeals for the Second Circuit.

Mark Harris is a partner at Proskauer Rose LLP and co-head of its Appellate Practice Group, which was recently named to the National Law Journal’s 2020 Appellate Hot List. He is also a member of Proskauer’s White-Collar Defense & Investigations and Securities Litigation Groups, concentrating his practice in the areas of white-collar criminal defense and related litigation, and representing both institutional and individual clients in government investigations and prosecutions.

Mark is a former clerk to U.S. Supreme Court Justices John Paul Stevens and Lewis Powell, Jr., and to Judge Joel Flaum of the U.S. Court of Appeals for the Seventh Circuit. Mark served as an Assistant U.S. Attorney for the Southern District of New York, prosecuting a broad spectrum of federal crimes, including health-care fraud, financial fraud, and corporate embezzlement, and trying a number of jury trials and arguing appeals before the Second Circuit.

He is the editor of PLI’s new treatise Principles of Appellate Advocacy: A Guide to Modern Practice (forthcoming 2021), a comprehensive guide to appellate law and strategy.

Mark has handled dozens of cases in the U.S. Supreme Court and other appellate courts in areas spanning criminal law, bankruptcy, copyright, labor relations, employment law, and administrative law. In some of his major cases, he has successfully represented the Financial Oversight and Management Board of Puerto Rico before the First Circuit in more than two dozen appeals arising out of Puerto Rico’s bankruptcy; he successfully represented Nextel Communications before the Second Circuit, which vacated the certification of a class of hundreds of former employees who had brought fiduciary and other claims against the company; he represented Biosig Instruments before the U.S. Supreme Court and the Federal Circuit, for which the American Lawyer named him its Litigator of the Week; and he argued a major Establishment Clause case in the Second Circuit.

Since 1996, Mark has been a member of the Board of Editors of the Federal Sentencing Reporter and a frequent contributor. He has lectured on both criminal law and appellate practice before the International Bar Association, the National Association of Criminal Defense Lawyers, PLI, and the ABA Sections of Litigation, Criminal Law, and Employment and Labor Law, and has been interviewed by Bloomberg Radio, the National Law Journal, WINS AM-1010, Law360, Legal Times, and other news organizations. He also serves on the Board of Trustees of the National Museum of Mathematics.

Richard B. Rosenthal is a solo appellate lawyer who handles appeals across the country, often on behalf of plaintiffs, from his offices in Miami and San Francisco.  He is a former law clerk to the Honorable Levin H. Campbell of the U.S. Court of Appeals for the First Circuit, and to the Honorable Edward B. Davis, Chief Judge of the U.S. District Court for the Southern District of Florida.

Mr. Rosenthal has served as a personal attorney to Barack Obama and as Statewide Lead Counsel to the Obama for America presidential campaign in Florida.  His clients have also included two United States Senators; a sitting Chief U.S. District Judge; a retired Appellate Justice from California; Secretary of Defense Medal of Freedom recipients; a Hall of Fame baseball star; a major political party in Florida; the nation’s largest independent record label; a police labor union; various nonprofit organizations, trade, and professional associations; and individuals of every background and station.

Mr. Rosenthal has been listed by the National Law Journal as a “Trailblazer” among American plaintiffs’ lawyers.  He has also achieved the rare distinction of having been named simultaneously to “Super Lawyer” and “Best Lawyer” lists in two states: Florida and California.  He is a frequent speaker at continuing legal education events, has served as an adjunct professor of law, and has delivered guest lectures at various law schools including Yale, Columbia, Stanford, Michigan, as well as international lectures on the topic of American Democracy and American Values at law schools in Siberia, Kyrgyzstan, and Ukraine.  He can be reached at

Josh Rosenkranz chairs the Supreme Court and Appellate practice at Orrick Herrington & Sutcliffe, where he handles high-stakes appeals for industry leaders. A former law clerk to U.S. Supreme Court Justice William J. Brennan Jr. and then-Judge Antonin Scalia on the D.C. Circuit, Josh has personally argued more than 170 appeals in state and federal appellate courts across the nation and has served as attorney of record in some 1,500 other appeals. Josh has played a leading role in more than a dozen Supreme Court cases, having argued eleven in the past seven years. The American Lawyer named Josh “Litigator of the Year” in 2012, dubbing him “the Defibrillator” based on his streak of appellate wins for companies that “appeared to be at death’s door.”

Josh’s practice covers a wide range of subjects, including securities, intellectual property, antitrust, federal preemption, insurance law, corporate governance, criminal law and constitutional litigation. Among his recent clients are Apple, Carnegie Mellon University, DISH Network, Facebook, JPMorgan Chase, Kleiner Perkins, Microsoft, Morgan Stanley, Oracle, and UBS.

Cate Stetson is the co-Director of Hogan Lovells’ nationally acclaimed Appellate practice group and a twice-elected member of the firm’s Global Board. Cate has argued one hundred appeals, including multiple times in the U.S. Supreme Court, in all of the federal courts of appeals, and in state appellate courts ranging from New York to California. She has been described to the press as “tough and smart” and “one of the most gifted litigators and orators I have ever encountered,” and commended for her "brilliance of mind and ability to grasp complicated technical matters."   

Judge Theodore A. McKee was sworn in as a Judge of the U.S. Court of Appeals for the Third Circuit on June 20, 1994; in 2010 he became Chief Judge. He is only the fourth African-American to serve on the Third Circuit bench. Judge McKee graduated magna cum laude from Syracuse University College of Law in 1975. A native of Rochester, New York, Judge McKee graduated from the State University of New York at Cortland.

Upon graduation from law school, Judge McKee began his legal career in Philadelphia at Wolf, Block, Schorr & Solis-Cohen. He left there in 1977 to become an Assistant U.S. Attorney for the Eastern District of Pennsylvania. His position as an Assistant U.S. Attorney was the beginning of a career in public service. He left the United States Attorney's Office in 1980 to become a Deputy City Solicitor in the administration of then mayor, William Green. There, he headed the enforcement division of the city's law department. In 1983 he accepted a position as General Counsel to the Philadelphia Parking Authority, and then ran successfully for the Court of Common Pleas, where he served for over 11 years. Toward the end of his first term on the Court of Common Pleas he was granted an assignment to the Orphans' Court, thus becoming the first African American to be assigned to that court.

Judge McKee is quite active in the community, and serves on the boards of directors of several non-profit organizations and institutions including the Vera Institute of Justice,  and the Advisory Committee of City Year Philadelphia. He was a member of the Third Circuit Task Force on Equal Treatment in the Courts, and co-chaired the Commission on Racial and Ethnic Bias of the Task Force. Judge McKee has also served on the Pennsylvan ia Sentencing Commission, and was the chair of the Commission for nearly four years during which time he chaired a subcommittee charged with reexamining Pennsylvania's sentencing guidelines. He has also served on the Council of the Criminal Justice Section of the American Bar Association and the Criminal Law Committee of the Judicial Conference of the United States.

Judge McKee is a Trustee of Temple University and Syracuse University and recently became an Advisor to the American Law Institute's Committee on Revising the Model Penal Code, and is a member of the ABA Commission on Effective Criminal Sanctions. Rutgers University College of Law has recognized his commitment to public interest law and community involvement by awarding him its annual Mary Philbrook Public Interest Award, and he has  Honorary Doctorate of Humane Letters degrees from  the Trustees of the State University of New York, and Widener University College of Law.

Judge McKee has traveled to Moscow to address the Council of Russian Judges on the "Importance of an independent Judiciary,")," and Ghana to work with the Ghanian judiciary. Although he is not a historian, in 2001, the United States House of Representatives appointed him to serve as a Member of the Advisory Committee to the Congressional Commission to Commemorate the 250'" Anniversary of the Birth of James Madison.