Lawyer Took Unconventional Route

Jeffrey L. Fisher, a 34-year old with two U.S. Supreme Court victories already under his belt, will address Harvard Law School (HLS) graduates today as their Class Day speaker.

The 2004 National Law Review’s runner-up for Lawyer of the Year, Fisher is a First Amendment and criminal-defense specialist at the Seattle-based law firm of Davis Wright Tremaine (DWT). He recently became partner after just five years there.

Two years earlier, Fisher argued and won Crawford vs. Washington and Blakely vs. Washington in the U.S. Supreme Court—two cases that significantly altered the federal court system’s procedures.

“In both cases, Fisher’s arguments transformed key aspects of criminal litigation,” says HLS Professor William J. Stuntz. “I don’t know of another example, in the past 30 years, of a lawyer having such an impact in two areas of law in a single year. The word brilliant is overused these days, but Fisher is truly a brilliant lawyer.”

INSIDE THE COURTROOM

Although Fisher works at a private law firm, he says that practicing corporate law never appealed to him. Instead, he says, wanted to pursue a career that would give him the freedom to do pro-bono work as well.

“DWT supported the fact that I took pro-bono very seriously and recognized that it would allow me to take on work that I wouldn’t be able to do for years at the firm,” Fisher says.

It was his pro-bono work that landed him in the Supreme Court in November 2003—just two years after he worked there as a clerk for U.S. Supreme Court Justice John Paul Stevens.

His case, Crawford vs. Washington, involved a criminal trial in which a videotape was used as evidence against the defendant, Crawford. But because Crawford’s lawyer was not able to cross-examine the videotaped witness, they took the case to the Washington State Supreme Court. There they argued that the videotaped evidence violated Crawford’s right, under the Sixth Amendment, to confront witnesses against him, but the court ruled that the evidence was reliable.

Fisher read the court’s opinion and then asked Crawford’s lawyer whether he could help appeal the case to the U.S. Supreme Court.

“The lawyer didn’t want to appeal the case, in part because the criminal trial scene is so under-litigated and he didn’t have the time, but Crawford then told me to go for it,” Fisher says.

Although only one of out every 100 petitions for Supreme Court review is granted, Fisher was able to persuade the Supreme Court to make room for Crawford’s petition on the Court’s docket.

“In this case, one thing was unusual,” Fisher says. “In almost all Supreme Court cases you argue on precedent, but in this circumstance I argued that all its previous rulings that used the reliability framework were wrong and that there was an absolute right to cross-examine the witness.”

Those who worked closest with Fisher admired this fresh approach.

“Although many lawyers told [Fisher] to focus on a narrower issue that was specific to the Crawford case in his oral argument, he knew when to be bold,” says Richard D. Friedman ’73, who is Aigler professor of law at the University of Michigan. Friedman assisted Fisher with the case and sat with him during his oral argument.

Although Fisher acknowledges that his argument was “a bit of a gamble,” seven justices ultimately ruled in its favor.

Fisher’s Supreme Court run didn’t end there.

Within five months, he found himself in a similar situation when a lawyer on another case, Blakely vs. Washington, also did not want to appeal the state’s ruling to the U.S. Supreme Court.

The Blakely case involved a question over the state of Washington’s sentencing guidelines and whether judges had the right to increase the severity of a criminal sentence decided by a jury.

Fisher argued that this violated the right to a trial by jury, and the Supreme Court ruled five to four in his favor.

“After the Blakely case was decided, it became pretty clear that the same result had to happen for the federal sentencing guidelines,” Fisher says. “Another case was brought forward and the Supreme Court then ruled that the federal sentencing guidelines were unconstitutional as well. Blakely served as the bridge to this important decision.”

A LIFE OF LAW

At today’s ceremony, Fisher plans to discuss his early misconceptions about a law career with the HLS class.

“When I was in law school, I had this impression that lawyers took what was given to them and navigated it the best they could, but that it would be hard to change the law,” Fisher says. “Changing the law is something I have been lucky enough to do now, and it is just astonishing how many issues are out there and that you can really make a difference.”

With his Supreme Court cases now closed, Fisher has been working with DWT on a federal appeals case pertaining to the Exxon Valdez oil spill in 1989 and on some other First Amendment work focusing on the journalistic privilege to keep sources confidential.

Born in Kansas City, Fisher graduated from Duke University in 1992 and then took two years off before attending the University of Michigan Law School, earning his law degree in 1997.

“I wasn’t really sure what I wanted to do after college,” Fisher says. “I taught tennis for some time and then got a job as a paralegal in Washington, D.C. It was there that I became interested in the moral and philosophical issues in our culture that seemed, to me, to be played out in the law, and decided that a law career seemed like a good day-to-day life.”

Fisher said that the “law just clicked” with him while in law school, which landed him clerkships with Ninth U.S. Circuit Court of Appeals Judge Stephen Reinhart and U.S. Supreme Court Justice Stevens in the two years after he graduated.

Fisher says his work with Justice Stevens gave him confidence to argue a case in the U.S. Supreme Court.

“I had a good idea of what the rhythms of the court room are like,” Fisher said. “It turned out that I was aligned across from Justice Stevens when I argued the Crawford case. He gave me a smile as the justices left which really relaxed me.”

Fisher lives in Seattle with his wife, Lisa Douglass, and their two-year-old daughter.

—Staff writer Carolyn A. Sheehan can be reached at csheehan@fas.harvard.edu.