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Appellate Advocacy 2017


Speaker(s): Mark D. Harris, Rachel S. Bloomekatz, Richard B. Rosenthal, Scott A. Chesin, Stephen Kinnaird
Recorded on: Apr. 21, 2017
PLI Program #: 183391

Mark Harris is a partner at Proskauer Rose LLP and co-head of its Appellate Practice Group, which was honored in 2011 by Law360 as one of five Appellate Practices of the Year nationally, and by the National Law Journal with a spot on its annual “Appellate Hot List.”  Most recently, the American Lawyer named Mark its “Litigator of the Week” for his representation of Biosig Instruments before the Federal Circuit and the U.S. Supreme Court.  Mark 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, during which he prosecuted a broad spectrum of federal crimes, including health-care fraud, financial fraud, and corporate embezzlement, and tried a number of jury trials and argued before the Second Circuit.

Mark has handled dozens of cases in the U.S. Supreme Court and other appellate courts in areas spanning criminal law, sentencing, copyright, labor relations, employment law, and administrative law.  In 2015, 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.  In some of his other major cases, he served as co-counsel to the petitioner in Hill v. United States, in which the Supreme Court applied the Fair Sentencing Act of 2010 to benefit defendants retroactively; he helped persuade the Second Circuit to reverse the conviction of a former Gen Re executive; he successfully represented electronic publishers before the Supreme Court in Reed Elsevier Inc. v. Muchnick, named the 2010 “U.S. Copyright Case of the Year” by Managing Intellectual Property Magazine; and he briefed and argued the American Bar Association’s successful challenge to the Federal Trade Commission’s “Red Flags Rule.”

Since 1996, Mark has been a member of the Board of Editors of the Federal Sentencing Reporter and a frequent contributor. His work on behalf of non-U.S. clients was featured in the American Lawyer’s 2006 Litigation supplement. He has lectured on both appellate practice and criminal law 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.  He has appeared on WCBS-TV , NY1, Bloomberg Radio, FM News 101.9, and WINS AM-1010, and has been featured in the National Law Journal, New York Law Journal, Law360, Legal Times, and other publications.

Related Practices

Appellate

White Collar Defense & Investigations

Securities Litigation

Non-Compete & Trade Secrets

Education

Harvard Law School, J.D., 1992
magna cum laude

Supervising Editor, Harvard Law Review

Harvard College, A.B., 1989
magna cum laude
Phi Beta Kappa

Bar Admissions

New York

Illinois

District of Columbia


Rachel Bloomekatz is a principal at Gupta Wessler PLLC, where she focuses on Supreme Court, appellate, and complex litigation.

Rachel’s practice draws on her extensive appellate experience in both the public and private sectors, as well as insights gained from her clerkships with Justice Stephen Breyer on the U.S. Supreme Court, Chief Justice Margaret Marshall on the Massachusetts Supreme Judicial Court, and Judge Guido Calabresi on the U.S. Court of Appeals for the Second Circuit.

Rachel has argued constitutional issues and complex appeals in state and federal appellate courts nationwide and regularly practices before the U.S. Supreme Court. She has handled cases on a wide range of issues, including class actions, workers’ rights, immigrants’ rights, juvenile justice, public health, and voter protection. Most recently, Rachel successfully challenged the 112-year sentence of a juvenile defendant on Eighth Amendment grounds, in an oral argument that a former judge and Ohio Supreme Court expert praised as “clear, articulate, focused, and totally non-defensive, even in the light of some very tough questioning.” Rachel has also filed amicus briefs on behalf of numerous public health organizations in cases concerning tobacco, soda taxes, and other public health issues, and served as counsel to dozens of detained mothers and children in immigration detention in Artesia, New Mexico.

Rachel joined Gupta Wessler in 2016 from Jones Day, where she was a member of the renowned Issues and Appeals practice group. Previously, as an Assistant Attorney General in Massachusetts, she defended the Commonwealth’s gun laws, child protection statutes, and other state laws and regulations in appellate courts. 

Rachel divides her time between Washington, DC and Columbus, Ohio.


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 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 rbr@rosenthalappeals.com


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.


Stephen Kinnaird is a partner at Paul Hastings LLP and co-chair of its Appellate Practice. He has represented clients in numerous cases in the United States Supreme Court, the federal courts of appeals and district courts, and state appellate courts. Mr. Kinnaird has handled matters involving intellectual and real property, antitrust, environmental, transportation, administrative, criminal, tort, and constitutional law, among others.

Mr. Kinnaird has briefed and argued multiple cases in the U.S. Supreme Court.  He argued Padilla v. Kentucky, in which the Court ruled in favor of firm client Jose Padilla in holding that the Sixth Amendment imposed duties upon defense counsel to advise criminal defendants of the deportation consequences of criminal convictions. Mr. Kinnaird was featured on the cover of the July/August 2010 issue of The American Lawyer in a story discussing Padilla as the capstone of the firm's pro bono initiatives.  Lawyers USA named Mr. Kinnaird one of its nine Lawyers of the Year in 2010.  In 2013, Mr. Kinnaird successfully argued Peugh v. United States, in which the Supreme Court held by 5-4 decision that the Ex Post Facto Clause bars retroactive application of amendments to the advisory U.S. Sentencing Guidelines that raise recommended sentencing ranges.  In 2016, the Supreme Court appointed Mr. Kinnaird as amicus curiae to defend the ruling of the U.S. Court of Appeals for the Ninth Circuit in McLane Co. v. EEOC.  Other notable matters include engagements for:

  • an electronics manufacturer in the U.S. Supreme Court in a case involving removal of mass actions under the Class Action Fairness Act;
  • a major league baseball team in the U.S. Supreme Court in a case involving taxation of back pay;
  • a telecommunications company in the U.S. Supreme Court and the courts of appeals in cases establishing rules of competitive access to network facilities under the Telecommunications Act of 1996 and addressing takings and sovereign immunity defenses;
  • a railroad company in the U.S. Supreme Court in a case addressing the legal standard for causation by contributory negligence;
  • an energy company in the U.S. Supreme Court in a case concerning rights to coalbed methane in property derived from federal land grants;

Prior to entering private practice, Mr. Kinnaird served as a law clerk to Justice Anthony M. Kennedy of the United States Supreme Court, and to Judge John M. Walker, Jr. of the United States Court of Appeals for the Second Circuit. Mr. Kinnaird received a B.A. in English Language and Literature from Yale University, summa cum laude.  He received an M.A. in Philosophy, Politics, and Economics from Oxford University, which he attended on a Rhodes Scholarship. He received a J.D. from Yale Law School, where he served as Articles Editor on the Yale Law Journal and was awarded three faculty prizes for scholarship.