Being a federal judge is a dream job for many lawyers. Why would anyone want to leave it behind?
And yet that’s what several high-profile, highly regarded judges have been doing in recent months. One of them is Gary Feinerman, who stepped down as a judge of the U.S. District Court of the Northern District of Illinois at the end of last year, then joined the Chicago office of Latham & Watkins just last month.
Why on earth did Judge Feinerman leave the bench? I asked him that and much more—including what it was like to clerk for Justice Kennedy alongside two future Supreme Court justices, how he became a federal judge, how he funneled his clerks into SCOTUS clerkships as a “feeder judge,” and what type of practice he plans to build at Latham & Watkins—in this latest episode of the Original Jurisdiction podcast.
Show Notes:
Prefer reading to listening? A transcript of the entire episode appears below.
Sponsored by:
NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.
Gary Feinerman (courtesy photo by Latham & Watkins)Two quick notes:
David Lat: Hello, and welcome to the Original Jurisdiction podcast. I’m your host David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to by visiting davidlat.substack.com.
You’re listening to the eleventh episode of this podcast, recorded on Friday, January 27. I post episodes every other Wednesday.
I’d like to begin by thanking this podcast’s sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.
My guest today is Gary Feinerman, who served as a judge for the U.S. District Court or the Northern District of Illinois, with chambers in Chicago, from 2010 to 2022. He also served as the Solicitor General of Illinois, from 2003 until 2007, and as a law clerk to Justice Anthony M. Kennedy.
As readers of the Original Jurisdiction newsletter know, Gary recently left his judgeship to return to the practice of law. He is now a partner in the Chicago office of Latham & Watkins, where he represents clients in their highest-stakes litigation.
I refer to him as Gary rather than Judge Feinerman because, well, he told me to call him Gary, but I do think his preference is revealing. Unlike many judges who leave the bench to become arbitrators or mediators, Gary is back to being a working litigator, taking depositions, arguing motions, and trying cases. His experience on the other side of the bench for some 12 years makes him an invaluable addition to the Latham team.
He left behind a federal judgeship, which is a dream job for many lawyers. Why would anyone step down from the bench? That’s one of the questions that Gary and I discussed in our interview. We also talked about what it was like to clerk for Justice Kennedy alongside two future justices, his most noteworthy case from his time on the bench, how he worked his magic as a Supreme Court “feeder judge,” and the type of practice he plans to build at Latham & Watkins.
Without further ado, here’s my interview of Gary Feinerman.
DL: Hello, Gary! Thanks so much for joining me.
Gary Feinerman: Thanks for having me.
DL: Congratulations on your move to Latham and Watkins. I hope you're settling in well there?
GF: Yeah, absolutely. It's been almost a month. The welcome has been really warm, lots of orientation, lots of meeting colleagues whom I encountered during the interview process and new colleagues, and it's just been terrific through and through.
DL: Excellent, excellent. So we'll circle back to that in a bit, but to rewind, can you tell us about your upbringing and whether there was any hint in your childhood or adolescence that you might become a lawyer or a judge someday?
GF: Not really. So my dad was a pharmacist, just a retail pharmacist in town, one of the towns next to the town where I grew up. And my mom was a stay-at-home mom at first, and then when my sister and I got older, she became a calligrapher of all things, which was pretty neat, and then she worked in retail.
I had a relatively uneventful childhood. I played sports, not that well, and I was a somewhat better student. We were a typical middle-class family. We started off in Des Plaines, Illinois, which is west of the city [of Chicago]. Then we moved to Skokie, and then my parents made the typical middle-class move of buying a relatively inexpensive house in a great school district in Highland Park, and that's where I went to high school.
As to indications that I would be a lawyer, probably not, and I'm about to reveal myself as a huge geek—I had four years of Model UN in high school, so that was probably the biggest indication that I might be headed in the direction of being a lawyer, but not much beyond that.
DL: And then in college, what did you study, and did you get interested in law then?
GF: Yeah, kind of. So I was a poli sci major in college, but I also thought I wanted to be a doctor, so I was premed…
DL: Oh wow.
GF: … on top of that. My dad was a pharmacist, and it was kind of a natural fit for me to want to stay in that general field and go to med school. Then between my junior and senior year, I worked in a hospital, and I hated it. And I realized if you don't like working in a hospital over a summer, medicine's probably not the right profession for you. And given the poli sci major, I realized that my passion, both intellectually and just in terms of what made me tick, was politics and law. So I switched gears and took a year off between college and law school, and then went to law school.
DL: Did you ever take the MCAT?
GF: Embarrassingly, yes. I did take the MCAT because at that point, the point at which you took the MCAT in those days, I had not yet reached the inflection point where I had decided that medicine wasn't for me. So yes, I studied for and I took the MCAT, and then pivoted after that.
DL: Wow, you were quite the masochist then. What did you do in between college and law school?
GF: I worked at this environmental consulting firm in D.C., which moved to Vienna, Virginia. It's called ICF Incorporated. It was a great company, and I spent most of my time there—we were, I guess “retained” is the right word, by the EPA, to help them with NPRMs, Notices of Proposed Rulemakings, and then the actual rulemakings, and going through all the comments that got submitted. So it was a really nice [segue] from college to law school, and just spending the year [before] law school in D.C. with so many classmates and so many people from across the country, it was just a really fun year.
DL: When you went to that consulting firm, did you already know you were going to law school, or did you apply while you were there?
GF: Yeah, I knew that I was going, and I had deferred a year with the understanding that I’d spend a year working and then head off to law school.
DL: And when you went to law school, what was your thinking in going to law school? Why did you go, did you think you wanted to do environmental law?
GF: That was definitely a possibility. It was quite some time ago, so I can't remember precisely what was on my mind, but having worked at ICF and done environmental regulation, at least at the front end for a year, that was certainly a possibility. When I was a poli sci major in college, I did a lot of international relations, so I thought international law might be in the cards.
But I knew always that I wanted to be a litigator rather than a transactional lawyer, because of the strategy of being a litigator, formulating arguments, being persuasive, making arguments, that was most in my wheelhouse. So whatever it was that I was going to end up doing, I knew it was going to be on the litigation side rather than the transaction side.
DL: So after graduation, I believe your first job or jobs were clerkships, right?
GF: Right. So I first clerked for Judge Joel Flaum on the Seventh Circuit, who is an extraordinary judge and an even more extraordinary person, just a wonderful first job to have out of law school. He's just exceptionally talented, exceptionally smart, exceptionally kind, and I'm just so fortunate to have clerked for him. He's been a mentor to me for the last 30 years, and we stay in very close touch, and it just was a joy to be working in the same building with him for the 12 years that I was a district judge.
DL: And then after that, I believe you clerked for Justice Kennedy?
GF: I did, yes. So I took a year between clerkships. I was at Mayer Brown for a year, and then went back to D.C. and clerked for Justice Kennedy.
DL: So this is a fun bit of trivia for my readers or listeners who are very interested in the world of Supreme Court clerkships. You clerked in October Term 1993, which I would say—some of your co clerks have made the argument to me—is the most illustrious class of SCOTUS clerks in history. Your co-clerks included now-Justice Kavanaugh, now-Justice Gorsuch, and you were all clerking for then-Justice Kennedy. But then other clerks that Term included Michelle Alexander, who is the author of the bestselling The New Jim Crow and Katherine Adams, who is the general counsel of Apple, and a whole bunch of other judges, current and former—former judge [Mark] Filip, Judge [Paul] Oetken, Judge [Allison] Eid. What was that like to clerk with that bunch of people, which even by SCOTUS clerk standards, I would say, is an extraordinary bunch?
GF: It was a wonderful experience. In terms of our chambers, Justice Kennedy could not possibly have been a better boss, just gracious through and through, and although we didn't agree on everything—and by the way, none of us agreed with Justice Kennedy on everything—we all really appreciated and respected his approach to cases and his approach to the job and his approach to law.
We had, as you might imagine, a very ideologically diverse chambers in terms of law clerks. And that made it just such a great deal of fun because we all respected each other, we all liked each other, and it just was a very interesting experience to be in chambers with that group of folks. In addition to Justice Kavanaugh and Justice Gorsuch, there was Miles Ehrlich, who is now a prominent criminal defense attorney in the Bay Area, and Nate Forrester, who is just a great guy, and he was earlier in his career the Solicitor General of Alabama and now he's at OLC [the Office of Legal Counsel]. It was just great to work with them.
As to the other chambers, it was fantastic to work and become friends with all of them. And we got along. It was one of those years, I know some years it's not so much, but it was one of those years where we all got along really, really well, regardless of our views on the law.
I guess if you were cynical you'd say, well, that's because it was a relatively uneventful term. There weren't many hot-button cases that Term. But I would argue differently: I think regardless of how many hot-button cases there were during the Term, it was just a very genial, friendly group, a respectful group, and by respectful I just mean respectful of differences, and so I think we would've gotten along regardless of what the docket was that particular year.
DL: Interesting. So do you have any random specific recollections of either Justice Kavanaugh or Justice Gorsuch, because I believe they were your colleagues in the Kennedy chambers?
GF: Yes, they were.
DL: I guess technically Justice Gorsuch was a clerk for actually Justice White, I believe, but he was sort of farmed out to the Kennedy chambers.
Gary: Right, yes. The clerks for the retired justices get affiliated with the chambers of an active justice, so it was great to have Neil with us in chambers.
As to recollections of anything in particular, I guess what I enjoyed most was our weekly and sometimes our twice-weekly basketball games up on what they then called, and I think continue to call, “the highest court in the land.” It wasn't much of a basketball court, and the ceiling was kind of low. If you had a jump shot with a very high arc, it was going to hit the ceiling, so you had to kind of learn to shoot more in a line-drive-type fashion. But those were great times.
James Forman was a great player—James Forman, who won the Pulitzer Prize for Locking Up Our Own. I think our ringleader probably was Julius Genachowski, who's now at Carlyle Group, but he was the chair of the FCC a few years ago. It was just a lot of fun. It was a way of letting off steam, and it was a way of building relationships with colleagues from across the building.
I should also mention the weekly happy hours that we had, which were another highlight because they were forums where we could just put work aside and be ourselves and form relationships outside of the work on the cases—that of course was very important, we spent a great deal of time on it—but it was nice to set that aside and just be with each other, as people. And I think that's one of the reasons why we had such a wonderful year and we were such a close group that year.
DL: I'm curious, I know that on and off justices have played in that game, not just clerks. Did any justices play in your day?
GF: No. Now General [William] Suter did, the Clerk of Court, at that point, and he was a formidable presence. He was just very tall, and let's just say he knew how to throw a pick, and you could not get through his picks under any circumstances. But I think I remember that Justice Thomas might have played the year before, but I think he might have snapped his Achilles or injured his Achilles, so he never made it up there, at least during my year.
DL: Okay, well, it's good he didn't injure himself during your Term. So after clerking, what was your path after that?
GF: Immediately after clerking, I went to DOJ and worked at what was then called the Office of Policy Development, and it's now called the Office of Legal Policy. And I did some policy work there, including on the 1994 crime bill. But my main role was to help with judicial nominations, both in terms of vetting prospective nominees and then supporting the nominees after their nomination through confirmation.
And then I was detailed for a bit over to the White House Counsel’s Office, where I did the same work over there, and it was a great time. I spent probably a year and a half in D.C. at DOJ and the Counsel’s Office, then I came back to Chicago and spent several years at Mayer Brown, a great firm. I was an associate there and then a partner, and I had a general litigation practice. I did a lot of arbitrations under the Telecommunications Act of 1996, which was a great deal of fun and a great experience.
Then several years in, an opportunity arose at the Illinois AG’s office, when the outstanding Lisa Madigan was elected attorney general, and she chose me to be her solicitor general, which was a great role and a great job. I know the attorney-general offices are structured differently across the country. In Illinois, the solicitor general—really a better [title] would have been the deputy attorney general in charge of appeals, because the SG in Illinois of course does Supreme Court and important Seventh Circuit and important Illinois Supreme Court cases, but also does every appeal. So there's a staff—at least when I was there, there was a staff of 40 lawyers, and other non-legal staff—where we just handled all of the state's appeals, other than direct criminal appeals in the Illinois appellate court, those were handled by the state's attorney's appellate prosecutor. But that was a great job, and I really enjoyed my colleagues there.
I spent four years as SG of Illinois, and after that I went to Sidley Austin, and I spent three years there. And after the 2008 election, an opportunity arose to join the court to become a district judge on the Northern District of Illinois. And I pursued that path and fortunately was able to join the court in 2010.
DL: So there's a lot to unpack there. Let me begin by asking you about your service as Illinois SG. I feel that the job of being a state solicitor general has really increased in prominence and influence, and a lot of states that didn't have state SGs now have them. There's even an association or group for them. But back when you did it, was that a position of long standing in Illinois? Had there been Illinois SGs for a while, or were you one of the first, and what was that like? Were you excited about the job going in?
GF: Very excited about the job. It had a leadership component where I was leading a group of 40 lawyers and other non-lawyer staff, and it [involved] very interesting legal issues. There were a lot of public-law issues, constitutional challenges to statutes and regulations, among many others. And there had been solicitors general in Illinois since the seventies, so Illinois was one of the states at the forefront of having state SGs. Obviously others were New York, where Barbara Underwood was an early SG and now has returned and is the SG again. In Ohio, Jeff Sutton, of course, was SG in Ohio, Texas had SGs of long standing, and my time in Illinois overlapped with Ted Cruz's time as SG of Texas. Alabama as well had SGs for a good long while. I mentioned my co-clerk, Nate Forrester, was SG, and I overlapped with Kevin Newsom, who was SG of Alabama when I was SG of Illinois. And Kevin, of course, is now on the Eleventh Circuit, and Caitlin Halligan was in New York, an extraordinary appellate litigator in New York.
So we had a really good group. It was a bit of a smaller group than they have now—it has been 15 or 17 or 18 years since I left the AG’s office. And kind of our ringleader was Dan Schweitzer at the National Association of Attorneys General, and he was kind of our organizer, and he would facilitate multistate amicus briefs in the Supreme Court and sometimes in the federal courts of appeals. And it was a really nice community, and we would get together every year at one of the attorney-general meetings for the National Association of Attorneys General. And at least back in that day—and I know things may have changed a little bit—whether it was a so-called “blue state” or a so-called “red state,” attorneys general and state solicitors general agreed kind of on like 90 percent of the stuff that came across our desks. There were some disagreements, but it was mostly we were on the same team, and that made it a really wonderful experience.
DL: That's interesting, because I do think times have changed. Now when you have a case involving states’ rights in the Supreme Court, you have a coalition of red states filing one amicus brief, and a coalition of blue states filing another amicus brief. So that is an interesting evolution you describe. And I believe as Illinois SG you argued before the Court also?
GF: Yes, I argued Illinois versus Lidster, which was a Fourth Amendment case. And actually on our side from the SG’s office was Patty Millett, who of course is now on the D.C. Circuit. So yeah, that was a great experience.
DL: And I believe you prevailed in that case, right?
GF: We did. Yes. Six to three maybe. Yes, we prevailed.
DL: Were you nervous going into the argument?
GF: Oh yes! Very nervous, for any number of reasons.
One is it was my first argument in front of the U.S. Supreme Court, and of course I had seen dozens of arguments when I was a clerk there, but it's a lot different sitting off on the side in the clerk seats than standing up at the podium. And of course Justice Kennedy was on the Court at the time, and I wanted to—I felt very nervous and a lot of pressure, and I'm sure he would never want any of his former clerks to feel this—but you just can't help but want to do a good job in front of your former boss and reflect well on him. So yeah, I was very nervous, but I somehow managed to get through it.
DL: Excellent, excellent. So congratulations on that.
Now at the tail end of your career narrative, you talked about your transition to the federal bench, and of course having been at OLP and having been at the White House Counsel's Office, you had seen that process from the other side. So was being a judge something that you had aspired to for a while, and can you talk in a little more detail about that process of outreach from either the administration or your senators in terms of the bench?
GF: Right. So given the wonderful experiences I had with Judge Flaum and Justice Kennedy, it was something that was always, I suppose, in the back of my mind, like at one point if the opportunity arose, I would want to be a judge, but there are just so few slots and opportunities.
It's not something that you could—at least, if you're handling things the way you should handle them, it's not something you should really curate your career around, like “I'm going to do everything I need to do in order to be a federal judge,” just because odds are, just given the relatively few number of slots, you're not going to be a federal judge, and you wouldn't have had the practice that you would've had, had you been doing the things you loved, as opposed to the things that you thought you needed to do in order to get yourself in a position to be a federal judge.
So I was just practicing the kind of law I wanted to practice. I was back at Sidley and after the 2008 election, I got a reach-out from Senator [Dick] Durbin's office and Senator Durbin, of course, was the senior senator from the president's party, and he was in charge of making recommendations, as is the case across the country. So I threw my hat in the ring and there was a process with a committee and I was fortunate enough to come out on the other end, being recommended to the president and then nominated and confirmed.
DL: This podcast is being sponsored by NexFirm. If you have wondered whether launching a law firm could be the best next step for your career, NexFirm has the experience and expertise to help. Contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com today to learn more.
So I talked about this a little in my recent interview with Secretary Jeh Johnson—you were a partner in a law firm at the time [of your nomination]—were you involved in politics? Were you involved in fundraising for either President Obama or Senator Durbin? Did you have political connections?
GF: In terms of fundraising, no. We certainly contributed, but we weren't bundlers, and we didn't solicit others to contribute at all. I did work on then-Senator Obama's presidential campaign, just as a layperson who got involved in one of their policy committees. But other than that, no, I wasn't involved politically at all.
DL: So looking at your tenure as a judge, you served on the bench for more than a decade. Is there a particular case or matter you handled as a judge that you would view as either your most memorable one or a matter that you're particularly proud of your handling of?
GF: I handled several thousand cases during my time on the bench, and when any particular case was before me, I handled it as if it were the most important case on my docket, because most of the time, it was to the litigants and the lawyers in the case, the most important case on my docket. So I didn't—at least my instinct was not to think about cases in that way.
But that said, if I had to identify my most memorable case, I'd have to say it was the one that received a lot of public attention, or one of them that received a lot of public attention. It was a challenge by Cook County and an immigrant-rights association here in Chicago to an immigration regulation implementing the “public charge” statute that was promulgated during the prior administration.
The case presented fascinating and difficult legal issues under the Administrative Procedure Act and the Equal Protection Clause. I ended up invalidating the regulation, and the government appealed. And then after the current administration dismissed the government's appeal of my judgment invalidating the regulation, the case then presented more really interesting and fascinating issues regarding whether and, if so, under what circumstances, states can intervene to defend a federal regulation, when the federal government is no longer defending the regulation.
DL: And did that case go to the Court, or is that issue before the Court? This is definitely ringing a bell, and I believe there's a case in February that looks at this issue.
GF: Yes. That particular issue is before the court. There was another case involving the same regulation out of the Ninth Circuit that got argued in front of the Court, and I believe that case got “DIGged” [dismissed as improvidently granted]. It was Arizona versus San Francisco. But yes, there is a case coming up this Term, not in the context of a public-charge challenge, but in another context involving the ability of states to intervene. And I believe last year, last Term, there was another case, I think out of Kentucky, where the Court considered either this issue or an issue that's adjacent to this.
DL: Yes, I think that's right. I think also the February case might be the case involving the Remain in Mexico policy, which I think a number of red states want to defend.
So it's interesting. You're handling these high-profile cases, these interesting and complex legal issues. Being a federal judge is a dream job for many. It sounds like it was a dream job for you as a young lawyer. So why did you decide to leave the bench?
GF: It was a very difficult decision. Serving as a federal district judge was the honor of my professional lifetime. It was a privilege to serve the court, the Northern District of Illinois, and the country. And our court—well, the judiciary as a whole, and in particular the Northern District of Illinois—is a wonderful community. Other than Judge Johnston, who's out in Rockford, we were all in the same building, all the active judges are in the same building, and I loved my colleagues. I loved my staff—courtroom deputy, court reporter, and I loved all my law clerks. And I loved as well the public-service aspect of being a judge and advancing justice. It's a great job. It really is.
Even with all those positives, and I hope you'll forgive the cliches, but I just concluded that after 12 years, it was time to start a new chapter and take on a new challenge. In particular, I missed two aspects of practice, both in private practice at Sidley and Mayer Brown and public practice at the Illinois AG’s Office.
The first was being an advocate, of taking sides and fighting for a client. There came a point during my tenure as a judge later on where I'd be handling a case and I'd be on the bench, and if I were being honest with myself, which is hard in this kind of a situation, I was thinking, all things being equal, I'd rather be doing what they were doing than what I was doing.
The second aspect of practice that I missed has to do with the fact that being a judge, and particularly a district judge, where you sit alone, is a relatively solitary endeavor. And I found myself… I would join any committee that would have me as a member. I was just really, really hungry for collaborative opportunities. But just the nature of the job—for the most part, even if you max out on the committees—it's a solitary job, and practicing law is a team sport and. Eleven, twelve years in, I realized that I'm much more of a team-sport person than a solitary-endeavor person.
But still, I enjoyed being a judge, and it's a great job, and I didn't have to leave, and I decided that I would leave only if presented with an extraordinary opportunity. And Latham & Watkins, where I joined earlier this year, fit that bill to the T. It does first-rate work across the board. It epitomizes excellence and it has, just significantly to me, a collegial, collaborative, and hardworking culture, where I believe that I could thrive both professionally and personally, and that culture came through in the interview process, and it has continued to come through during my first few weeks at the firm.
And joining that firm in the Chicago office was a particular draw. The Chicago litigation group is just phenomenal. It has an extremely solid foundation, and it's poised for even greater success. My sherpa or rabbi or whatever metaphor you want to use during the interview process with Sean Berkowitz, who I'm sure you've heard of, pretty much everybody's heard of, he’s an immensely talented lawyer, an outstanding leader, and an extraordinary person. And the prospect of working with Sean and the other litigators in Chicago—Mary Rose Alexander, Ken Schuler, Mark Mester, John Sikora, our Chicago litigation chairs, Terra Reynolds and Eric Swibel, and I could go on, but I'm going to start something like an infomercial, so I'll stop—the chance to work with them to build on the practice’s many successes and to help mentor the associates and the younger partners was an opportunity I just couldn't pass up.
DL: So if you will forgive the plug of my own work, I actually did a profile of the Latham litigation practice for Above the Law a number of years ago, and I got to interview Sean, who rocketed to fame for his work as a federal prosecutor on the Enron case. And I think even though Latham has a world-class transactional practice, private equity and public M&A, I think its litigation practice is really amazing. And so I can understand why if you were going to go join a firm, you would join Latham.
Now, I do note that your departure from the bench is part of this mini-trend of some young, as in not eligible for senior status, high-powered, highly regarded judges, leaving. Judge [Gregg] Costa left in the Fifth Circuit. Judge [Paul] Watford is leaving in the Ninth Circuit.
What do you make of this trend? And forgive me if this is a little direct, but could it have something to do with the increasing gap between compensation for partners at Latham, where they make millions of dollars a year, and the federal bench?
GF: I don't know if I would even call it a mini-trend. Judge have left the bench before retirement age for quite some time, and it just so happens there was Judge Costa and Judge Watford, and of course Judge Abdul Kallon from Alabama and Judge [George] Hazel from Maryland who also recently left.
I can't really speak to what motivated the others. Certainly, just as a factual matter, the compensation is better in the private sector, or at least at firms like Latham & Watkins, than it is on the court. But federal judges get paid well, and so for me it was really the two things that I mentioned a few moments ago, rather than have anything having to do with compensation.
DL: That's a totally fair point. And I would also mention on federal judicial compensation that judges who are eligible for senior status when they are age 65 or above and they've served 15 years or more on the bench are eligible for their salary for life, which is a very generous retirement benefit. I talked to one former judge who went to the private sector and basically did want to be compensated for forfeiting the value of that very lucrative retirement benefit.
But anyway, can you tell us a little bit about the type of practice you aspire to build for yourself at Latham & Watkins? I know you're joining a great team, and certainly they have areas that they're already known for, but are there things that you are trying to focus on, either issues or areas of law or type of litigation?
GF: That's a great question. So my home at Latham is in the complex commercial litigation practice, which is led by Sean Berkowitz, within the firm's litigation and trial department, and I'll also plan on working on intellectual-property cases, securities and derivatives, white-collar and investigations, to the extent there's a role for me to play. Particularly in Illinois or the Seventh Circuit, I could handle some appeals, and complex commercial litigation handles a wide array of cases, consumer fraud, business torts, contract cases, product liability, and the like. So the goal of my practice is just to provide as much value to Latham's clients as I can.
As we discussed, before I was a judge, I worked in two law firms, and I was the solicitor of Illinois. And in those roles I was a working litigator handling complex matters. At the law firms, they were high-exposure cases for our clients, and for the state of Illinois, they were significant public-law cases. For cases that were in the trial court, I set strategy, I conducted discovery, took depositions, drafted and argued motions, conducted hearings, and tried cases before courts and arbitrators. For cases on appeal, I drafted and edited briefs and argued appeals.
My plan is to continue, or I guess resume, that practice at Latham, rolling up my sleeves and handling complex, high-exposure cases. But I'll be able to do so with the perspective that I've gained from 12 years on the bench, both as a district judge, which was most of my work, and having sat by designation on the Ninth Circuit pretty regularly over the last few years and earlier on the Seventh, and I hope it will prove to be a valuable perspective.
I lost count at some point of the number of times as a judge when I was reading briefs or hearing argument or presiding over a hearing or at trial where I thought to myself, boy, I wish I knew that when I was a practicing lawyer. And what I mean by that is that as a lawyer, you make the most informed judgment you can about how a particular argument or strategy or tone or piece of evidence will hit the judge or the jury. But what can appear to be a good or smart or strategic move on paper or on the chalkboard when you draw it up in the conference room, it's not necessarily a good play in reality. And given the number of reps I had as a judge, particularly during my day job on the district court, I could bring to bear, hopefully, a perspective and exercise judgment that will bring value to our clients, whether I'm drafting or editing a brief or motion to dismiss or summary judgment motion or Daubert motion or engaging with imposing counsel about discovery or taking or defending a deposition or handling a hearing or a trial.
So I guess that's a long way of saying I want to resume my practice of actually being a working litigator handling cases. And another component of my practice, which complements the first and will draw on the perspective that I gained as a judge, is to be a strategic advisor on a particular case or a particular client. And that can entail something as simple as conducting a moot court in significant cases, whether for Latham teams or for clients who are using another law firm on a particular matter. It can entail reviewing strategy or litigation themes at the outset of a case or in the middle of a case or right before trial. Or it can entail taking a broader look at a client's portfolio of litigation or prospective litigation and thinking strategically in long term about how the client could mitigate its litigation exposure and better manage its litigation risks. So I know that's a lot, but that's what my plan is, at least at the moment, for the kind of practice that I hope to have at Latham.
DL: And it is a notable plan, in the sense that many former judges sort of become judges in private, they go into arbitration, mediation, alternative dispute resolution. But I noticed in the announcement of Latham about your arrival and in what you were just saying to me that you do want to be a working litigator. So I think clients will really benefit from your perspective from a dozen years on the other side of the bench.
Before we move to my final four questions in the little speed round, I want to ask one last question. When you were a judge, you developed a reputation as a district court feeder judge. You would send many of your clerks into Supreme Court clerkships.
What is that like? And specifically, are you picking up the phone to be like, “Justice, I got a great one for you!” Or is it more like they're already interested in your clerk and they call you to say, “Judge Feinerman, what's this person like?” What's the balance between pushing and responding to incoming inquiries?
GF: It was mostly responding to incoming inquiries. There are a couple justices on the Court whom I know personally, so our relationship was such where I would feel comfortable reaching out to them, either by email or text, to say, “Hey, I have somebody who's really great and is worth a close look.” But I certainly didn't have that relationship with most of the justices on the Court, so I would wait to hear from them.
But it was nice for me to be able to work with these clerks. I would often say that I punched well above my weight when it came to clerks, and I just felt so fortunate to have as my law clerks young people who not only were outstanding lawyers, but outstanding people, and it just gives me so much enjoyment and satisfaction to be able to continue my relationships with them over the years.
But yeah, being able to have clerks that went on to the Supreme Court was a nice, unexpected bonus of the judge-clerk relationship.
DL: And I'm sure, of course, as a partner at Latham, you can continue to mentor young lawyers, associates, so I think you'll certainly enjoy.
So turning to my final four questions, which are standardized for all my guests, the first is, what do you like the least about the law? And this can either be the practice of the law, in the trenches, or it can be law as the abstract system that governs us.
GF: I'm far from the first person to say this, but the incivility that occasionally arises between or among counsel is the thing I like the least about the law. Litigation is contentious by nature. People are having disputes and they're significant, whether it's in the criminal realm, which is extraordinarily significant, or the civil realm, which is also significant and it's very important and essential, and a lawyer's duty is to advocate zealously for a client. But that can be done in a civil and gracious manner while continuing to be a decent human being. And so a lawyer can disagree, must disagree, even heatedly, about very important things, without being disagreeable.
Most lawyers, I found both in practice and as a judge, do that just fine. And they handle that balance. But too many, and I think one is too many, but too many don't manage to handle that balance, and there's enough of that—again, the minority, but there's enough of that where it impinges on the practice of law and it impinges on the role that lawyers and courts play in our society and it hurts what the law should be, which is a learned profession where people act civilly, fight hard in the courtroom, but always maintain composure and dignity.
DL: I totally agree, and sometimes I fear that that is eroding. But I do agree with you that the vast majority of lawyers do comply with that value system.
So my second question is, and maybe you touched on this about the pre-med track, but what would you be if you were not a lawyer?
GF: It's a great question. I've been a lawyer for 30 years and then a law student for three years before that, so it's hard to imagine what else I would be doing. But if I kind of had a fantasy job, and while I don't follow sports as closely as I'd like to, I would want to be a sports broadcaster. I think that would be just a great deal of fun, and it's intrinsically interesting, and not just the sport component of sports, but also the societal component of sports, more and more over the last few years, has become an aspect of professional collegiate sports. And so sports broadcaster is what I would want to be, if not a lawyer.
DL: Do you have one or two sports that you follow particularly closely?
GF: I mean, I try, I mean, it’s really hard to be a football fan when you live in Chicago these past few years. So I managed to catch a game this year, and we went to the Packers game, and I'm in a mixed marriage: my wife is from Milwaukee and is a Packers fan, and I'm a Bears fan. And as I joke with her, it's been a very long 29 years we've known each other, because they've had two quarterbacks and I think we've a dozen or two quarterbacks. And I like to follow basketball, professional basketball as well. And one other sport: one of our daughters is a collegiate rower, so I very much follow collegiate rowing as well.
DL: Oh yes. I remember a number of years ago pre-pandemic when we grabbed lunch, I think she was in the middle of a competition, and so you were checking on the status of that. And then on the Packers, one of my earlier guests, Paul Clement, was saying it's really like the civic religion, so I can understand why your wife is a diehard fan.
My third question is, how much sleep do you get each night?
GF: Not as much as I should, always, but I probably average around seven or seven and a half hours a night.
DL: Okay, that's good. And I've actually been heartened by the number of successful lawyers and judges who've told me they get seven to eight hours, which I think is great.
So my final question is, any final words of wisdom, especially for listeners who look at your life and career and say, I want to be Gary Feinerman?
GF: Well, I don't know if you want to be Gary Feinerman, but the words of wisdom I would have would be, practice the kind of law that you love to practice, the kind that energizes you, the kind that makes you want to leap out of bed in the morning and get to work. And whatever it is you do in the law, form close relationships with the people who are in your space and who are in your legal community. That could be with colleagues, it could be with opposing counsel, it could be with staff at your firm, it could be judges who you meet through bar associations or inns of court, and it could be with clients.
And when I said practice the kind of law that you love to practice, that's ultimately what's going to make you happy. And it's going to make you a better lawyer because if you're doing something you love, you're going to be better at it than if you're doing something that you really don't care for.
And just in terms of the arc of your career, be open to opportunities as they arise, and importantly, be open to change—shifting gears, regardless of the stage of the career that you're at.
DL: Yes. I think that many lawyers are sometimes afraid of change, but certainly a theme I've noticed in interviewing successful lawyers and judges is, many of the time, they took opportunities that they never even thought about and it worked out very well for them.
So again, Gary, thank you so much for joining me. Congratulations on joining Latham. Good luck in building your practice. And I'm really glad to have had you on the show.
GF: Thank you David. It's been a true pleasure and I appreciate your having me.
DL: Thank you to Gary Feinerman for joining me. It was wonderful to hear his insights from behind the bench, and I suspect we’ll continue to see his name in the news as he handles high-profile cases as a lawyer.
One of the lessons of Gary’s career is not to be afraid of exploring new opportunities, which brings me to our sponsor. Thanks to NexFirm for sponsoring this episode of the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. If you would like to explore this opportunity, contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com to learn more.
Thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers, for tuning in. If you’d like to connect with me, you can email me at davidlat@substack.com, and you can find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram at davidbenjaminlat.
If you enjoyed today’s episode, please rate, review, and subscribe to Original Jurisdiction. Please subscribe to the Original Jurisdiction newsletter if you don’t already, over at davidlat.substack.com. This podcast is free, as is most of the newsletter content, but it is made possible by paid subscriptions to the newsletter.
The next episode of the podcast should appear two weeks from now, on or about Wednesday, February 22. Until then, may your thinking be original and your jurisdiction free of defects.