Attorney scores trifecta for Supreme Court 'best brief'

By Cynthia Price
Legal News

People who knew John Bursch in high school might be surprised to hear that he has won the Best Brief Award from the National Association of Attorneys General three times and the Distinguished Brief Award from the Thomas M. Cooley Law Review no less than four times, since, as he says, he “hated English and didn’t care for writing” back then.

“Growing up I loved math and science,” Bursch says. “It’s been a funny turnabout.”

He says it was reading “One L” by Scott Turow, which calls “a virtual bible for prospective law students,” that set him on the path to changing his mind. He received his J.D. magna cum laude from the University of Minnesota (after graduating summa cum laude from Western Michigan University with a BA/BM).

As Bursch tells it, when he was clerking for U.S. Court of Appeals Judge James B. Loken, Eighth Circuit, “I found I absolutely loved the practice of law, and realized the way to succeed was to communicate in writing and orally to courts.”

And what a turnaround it has been.

Bursch has been a prolific litigator throughout his practice at Warner, Norcross, and Judd, where he started right out of law school, and during his recent three-year hiatus to serve as Michigan’s solicitor general.

In fact, he was so busy practicing before the Supreme Court of the United States (SCOTUS) at that time that the Wall Street Journal took notice.

In the article, author Jacob Gershman says, “Between March 2011 and the end of 2013, Mr. Bursch will have appeared for oral arguments in more than 6 percent of all of the cases before the high court during that time.”

He argued a total of eight cases and had SCOTUS summarily reverse two others (winning eight of the 10 cases and achieving partial relief in two). As Gershman notes, “By contrast, New York’s solicitor general has argued four cases before the Supreme Court since 2007.”

He has also argued 15 times before the Michigan Supreme Court, and will appear before them, he says, at least once in the coming year and possibly as many as three times now that he is back in private practice at Warner, Norcross, and Judd.

Bursch is a prolific speaker and writer, including co-writing the Institute for Continuing Legal Education’s Appellate Practice Handbook with his Warner colleague Gaëtan Gerville-Réache and authoring the “Michigan Supreme Court’s Guide to Counsel,” and has won numerous awards and honors over his career.

It was for his briefs in three of the SCOTUS cases that the National Association of Attorneys General (NAAG) gave him the Best Brief Award. About six or seven briefs are selected each year by a panel of independent U.S. Supreme Court experts, such as former clerks and major U.S. law firm attorneys. It is rare, even perhaps singular, for the same individual to win three years in a row, but Bursch pulled that off.

He has also just found out that, for the fourth time, he will receive the Distinguished Brief Award for advocacy in the Michigan Supreme Court from the Thomas M. Cooley Law Review. That award is in its 29th year and is given to the most scholarly briefs filed in the Michigan Supreme Court. A panel of jurists evaluates the briefs on the basis of question presented, point headings, statement of the case, argument and analysis, style, mechanics, and best overall brief.

That most recent award was based on his brief in Andrie Inc. v. Department of Treasury, which meticulously explored the statutes regarding sales tax and use tax in Michigan.

The case for which he won the NAAG award was much different. Burt v. Titlow is the stuff of which true crime stories are made, involving a transgender defendant, a treacherous lover who wore a wire, claims of ineffective counsel, and murder by “burking.”

That ability to tell a good story is one of the two hallmarks of a good brief, he says: it should be very clear and concise—and as short as possible—and it should be interesting to read.

Bursch offers similar advice about oral argument, particularly before SCOTUS. “You need to be able to deliver concisely and to the point. The justices ask lots and lots of questions during the time you have to argue, including hypotheticals, and if you can’t get your point across in a few seconds, it will get lost.” Bursch himself is impressively skilled at doing so, speaking and thinking remarkably quickly.

About his success, Bursch comments, “I’ve been blessed with a lot of opportunities to do appeals and have had a series of really great mentors as far as briefs go. I’ll throw out a few names—Bob Jonker, now Judge Jonker, who is fantastic; Bill Jansen, Jeff Birkhold, Jay Cragwell, Pete Gustafson. They’re all still at Warner. Pete is Of Counsel and the rest are all still practicing.” He also counts Attorney General Bill Schuette, who appointed him solicitor general, as a big influence on his life.

Bursch says the main reason he left his position with the state was that he wanted to spend more time with his family. “I have five kids, and one is a senior in high school now,” he says. “It was an hour each way every single day, and when I was arguing in front of the Supreme Court I would be gone a week and a half at a time. Now I can coach their soccer teams, shuttle them around ... Plus, it’s nice to have private clients. You can’t really have lunch with the people of the State of Michigan,” he adds.

Bursch’s main goal in taking the job was to be of service to those people of the state at a time when he felt the state was going to be turning itself around, and, he adds, “After three years I felt like I had made the commitment to public service that I’d intended to.”