At the Supreme Court, the Seventh Time is Not a Charm

Seven may be Eric Brunstad Jr.'s unlucky number. Brunstad, who works out of Bingham McCutchen's Hartford Conn., office, has been building an impressive Supreme Court practice in recent years by taking on out-of-the-way bankruptcy and estate law cases — one of which, Marshall v. Marshall, turned into a very high-profile case because he was representing J. Howard Marshall, the late Anna Nicole Smith's ex-husband, who lost. That was the 2006 case, if you recall, that probably brought the high court more publicity than any case since Bush v. Gore in 2000.

Brunstad's ability to grow a Supreme Court practice from outside of the nation's capital recalls the prowess of Jeffrey Sutton, the former Jones Day partner who dominated that firm's Supreme Court litigation from his Columbus, Ohio office before becoming a federal appeals judge in 2003.

Today marked Brunstad's seventh oral argument, and it was a doozy, with justices hitting him harder than almost any lawyer in recent memory.

The case was Preston v. Ferrer, an arbitration case that also has a modicum of celebrity appeal because of the identity of Brunstad's client. Brunstad was arguing on behalf of Alex Ferrer, a former Florida judge who stars in the syndicated "Judge Alex" TV show in which, ironically enough, he arbitrates disputes between ordinary folks over issues like falling trees and damaged furniture. The dispute that attracted the Supreme Court's attention was between Ferrer and his former California agent Arnold Preston over their management agreement which contains an arbitration clause. The issue was whether the dispute should be handled under the Federal Arbitration Act or under a special California law that governs talent agents' contracts.

Justices were unusually friendly toward Preston's Beverly Hills lawyer Joseph Schleimer of the firm Schleimer & Freundlich, who argued that the federal law should preempt the state law.

So by the time Brunstad rose to argue, he was already in a deep hole that was hard to climb out of. But you would not know it, given Brunstad's confident style, broad smile and booming voice. The justices hammered away hard at his position against preemption, however, arguing in essence that allowing state intervention would thwart the purpose of arbitration. Brunstad's smile vanished. Then it got ugly when Justices Anthony Kennedy and Ruth Bader Ginsburg started questioning the accuracy of statements he had made in his brief.

Kennedy challenged Brunstad to amend or "qualify" two statements he had made about the record in the case. Brunstad gamely defended what he had said, but eventually — no doubt to move off the subject — Brunstad agreed to a "factually accurate addition" to his brief. Ginsburg also piled on, pointing out another seeming contradiction between what Brunstad had said from the podium and what was in his brief. Brunstad again confessed error: "I wish to clarify that." Kennedy dealt the harshest blow, telling Brunstad, "If you have repeated statements in your brief that require qualifications... shouldn't we view with some skepticism what you tell us?" Brunstad soon sat down, looking deflated.

Standing outside the Court a few minutes later, Brunstad seemed stunned and weary but he stayed outwardly positive. He insisted that everything in his brief was accurate, noting that the point that Ginsburg disputed was actually something he had drawn from the lower court opinion. "It was a little strange," Brunstad said of his experience, adding with a smile, "Some days are harder than others." But he won't have much time to mope. Soon he will begin preparing for his next Supreme Court argument, in March or April. He'll represent the respondent in a bankruptcy case, Florida v. Piccadilly Cafeterias, Inc.