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BigLaw Associate's Big Day

New York Lawyer
December 3, 2008

By Gina Passarella
The Legal Intelligencer

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PHILADELPHIA - Most BigLaw thirty-somethings are focused on making partner or, in this economy, keeping their jobs.

But Dechert 9th-year Jason Murtagh, 33, won't be toiling away at his desk this morning on one of his typical products liability cases. He is down in Washington, D.C., making his case before the U.S. Supreme Court.

Murtagh, a Philadelphia-based Dechert associate, took on a pro bono case on behalf of a New York state prisoner who brought two civil rights suits against several employees of the New York state prison system.

Karen Murtagh-Monks, executive director of the nonprofit Prisoners' Legal Services of New York, asked Murtagh, her nephew, to represent Keith Haywood in Haywood v. Drown . Haywood had already seen both of his cases dismissed by the state trial court, where he represented himself pro se. An intermediate appellate court had upheld the trial court's rulings.

After checking for actual and positional conflicts in the firm, Murtagh said Dechert decided this was a case he ought to take because of its significance. The issue to be decided by the Supreme Court is whether a state law that bars state courts from hearing cases against correctional officers violates the Supremacy Clause by not permitting adjudication of claims under 42 U.S.C. 1983, a section of the U.S. Code that deals with civil rights claims.

The trial court threw out Haywood's cases, ruling New York Correction Law Section 24 prevents state trial courts from hearing claims for money damages against prison employees whether they are based on federal or state law, Dechert said in a statement. The firm said Section 24 has applicability beyond state prisoners and could prevent corrections employees from suing co-workers or supervisors in employment discrimination or civil rights claims.

When the case came to Murtagh, the New York Court of Appeals had agreed to hear it, but none of the briefing had been completed.

Murtagh said it's a constitutional question regarding a supremacy issue, so to some extent he has to go back to his days of constitutional law and federal courts classes from his time at Cornell Law School.

He said he approached the case like any other, which is to have the technical skills to argue and then learn the caselaw surrounding the issue.

Murtagh briefed the case and then argued it before the New York Court of Appeals, which he said has been his most significant appellate court argument to date. In November 2007, a split panel ruled 4-3 against Haywood, finding Correction Law Section 24 was a neutral jurisdictional rule that did not violate the Supremacy Clause of the U.S. Constitution.

So the next logical step was to appeal the case to the Supreme Court, which Murtagh immediately set out to do.

Gary Mennitt, a partner out of Dechert's New York office who helped Murtagh navigate the New York state courts and now the Supreme Court, said it was an honor for someone Murtagh's age to even argue before the state appeals court let alone the Supreme Court. Even though Dechert is a big firm, Mennitt said it's rare for certiorari to be granted or for any attorney to have the chance to argue before the nine justices.

"But we got [certiorari] and Jason set about to draft the Supreme Court briefs and he's done an excellent job," Mennitt said.

Murtagh also got a little help from amicus briefs from the PLSNY and a group of professors who teach constitutional law and federal jurisdiction.

Mennitt said the work Murtagh has done on this case has been great for his profile both inside and outside the firm. Although he was there to assist, Mennitt said he has really relied on Murtagh, who he said has taken on a huge amount of responsibility.

So has it hit him yet that he will be arguing before the Supreme Court? If waking up in the middle of the night thinking about the case is any indication, then yes.

"Anyone who is going to argue before the Supreme Court or, quite honestly, before any court, if they tell you they're not nervous, they probably are misleading you or shouldn't be doing the argument," Murtagh said. "The only way I can counterbalance that is [by] being as prepared as I can."

Aside from Mennitt, he has had some help in preparing. Dechert counsel Nory Miller has been working with Murtagh on the Supreme Court briefing and argument preparation. She has some experience in the arena given her work as a clerk to Supreme Court Justice William J. Brennan.

The firm also put on an internal moot court for Murtagh last week. Four partners, acting as justices, peppered Murtagh with questions after his argument and then gave him feedback. Mennitt said he thinks the experience was helpful and resulted in some changes to Murtagh's approach.

And Murtagh certainly isn't new to the appellate game. The vast majority of his work has been defending clients in products liability actions, including sitting first chair. In the past few years, he has been developing an appellate practice by writing briefs to appellate and state supreme courts. He also had the opportunity to try pro bono a Section 1983 case in New Jersey a few years ago. Part of the reason the firm wanted him to take the Haywood case was to build his oral advocacy skills, Murtagh said.

Ultimately, it's trial work that he said he loves.

"I think that being down in the trenches and explaining sometimes complicated issues to a jury can be a really exciting thing, so I want to continue that level of work," he said. "I think the skills that you develop during the oral advocacy portion of appellate work can be complementary to that."

Murtagh has a formidable opponent before the Supreme Court in New York Solicitor General Barbara D. Underwood. She had served as the acting U.S. Solicitor General in 2001 and was the principal deputy solicitor general before that.

Mennitt said Underwood is definitely a "significant adversary" who is supposed to be "excellent" at her job. He said one of the partners who sat on the moot court was Andrew J. Levander, who served as assistant to the U.S. solicitor general and worked with Underwood.

There will also be another important spectator in the audience today. Mennitt said he got a visit not too long ago from Haywood, who was released from prison after 20 years, just after the case had been taken up by the Supreme Court. Mennitt said Haywood plans to be at the arguments.

Murtagh graduated from the University of Georgia in 1996 and then went to Cornell Law School where he was part of the Law Review and sat on the board of the school's moot court — his first experience with formalized oral argument, he said.

He summered at Dechert in 1998 and when he graduated Cornell in 1999, he went to clerk for Judge Diane K. Vescovo of the Western District of Tennessee. He returned to Dechert in 2000 and has been in its Philadelphia office ever since.

He said he hasn't pulled his hours yet on this case, but has spent as much time on Haywood as he would any paying matter. Murtagh said he tries to take at least one pro bono case a year because he believes it is his duty to give something back to the community and it also helps him learn areas of the law — or courtrooms for that matter — he might otherwise never encounter.