Scott is an appellate lawyer who specializes in developing legal strategy at the trial level in order to position cases, or groups of cases, for appeal. He has experience litigating a wide variety of substantive issues; his particular areas of interest are product liability defense, punitive damages, and criminal defense. According to BTI Consulting, which named Scott to its 2020 list of “Client Service All-Stars,” clients describe him as “brilliant before the judge” and report that his “confidence shows and makes us confident in hiring him.” Legal 500 described Scott as an “appellate specialist” who comes “highly recommended” by clients. And he has been repeatedly recognized by both the New York Law Journal and New York Super Lawyers as a “Rising Star” in appellate litigation.
Scott’s appellate practice is national, with a particular focus on cases filed in New York, Florida and Massachusetts. He has handled appeals in virtually every federal and state appellate court in each of those jurisdictions, in addition to various other appellate courts throughout the country, including the U.S. Supreme Court, most U.S. Courts of Appeals and various state appellate courts. Overall, Scott has argued two dozen appeals—including in the New York Court of Appeals, the Second Circuit and all five of Florida’s District Courts of Appeal—and authored over 150 briefs on behalf of appellants, respondents and amici. He also spent a three-year term as a member of the Second Circuit’s Criminal Justice Act (CJA) panel, through which he accepted appointments to handle appeals pro bono for indigent criminal clients.
Because successful appeals often depend on careful issue-development and preparation at trial, clients regularly hire Scott to brief and argue complex issues at the trial-court level. He is deeply experienced in that type of work—in the past 10 years, Scott has served as “legal strategy” counsel during 30 high-stakes jury trials. He has also handled pre-trial motions practice and appellate preservation for over a dozen other cases that have either gone to trial or been resolved prior to trial. As legal strategy counsel before and during trials, Scott handles all aspects of appellate preservation and issue development, including drafting and arguing motions in limine, dispositive motions, directed-verdict and post-trial motions, proposed jury instructions and verdict forms, and exhibit objections. Scott regularly publishes and lectures on the subject of appellate preservation.
Scott received his J.D. from Columbia Law School, where he was a James Kent Scholar and a member of the Columbia Law Review. He received his A.B., cum laude in history, from Harvard College, where he won the Wendell Phillips Prize for the most promising orator in his class. Following graduation from law school, Scott served as a law clerk to Judge Pierre N. Leval of the U.S. Court of Appeals for the Second Circuit.
Civil Appellate Matters
Laramie v. Philip Morris USA Inc., No. SJC-13070 (Mass.): Represent Philip Morris USA in appeal pending on direct appellate review in the Massachusetts Supreme Judicial Court challenging the viability of punitive damages claims against tobacco companies in Massachusetts.
Philip Morris USA Inc. v. Rintoul, No. 4D20-1963 (Fla. 4th Dist. Ct. App.): Represent Philip Morris USA in appeal from the largest judgment entered in an individual tobacco case in Florida in five years.
Philip Morris USA Inc. v. Gentile, 281 So.3d 493 (Fla. 4th Dist. Ct. App. 2019): Briefed and argued appeal concerning the scope of Florida’s fraud statute of repose. Appellate court vacated $7.1 million judgment against client, granted judgment as a matter of law in the client’s favor on the plaintiff’s fraud claims, and remanded for a new trial on remaining issues.
Representaciones E Investigaciones Medicas, S.A. de C.V. v. Abdala, No. 655112 (N.Y. App. Div. 1st Dep. 2018): Represented major global generic drug manufacturer in $2 billion dispute over allegations of fraud in the acquisition of a Mexican pharmaceutical company. Case settled on favorable terms prior to argument.
Philip Morris USA Inc. v. Martin, 262 So.3d 769 (Fla. 4th Dist. Ct. App. 2018): Briefed and argued appeal concerning application of Florida’s punitive damages statute to wrongful death actions. Appellate court held that punitive damages are not permitted in cases involving decedents whose injuries first manifested after a 1999 statutory amendment. Judgment for punitive damages was vacated and the claim was dismissed.
Remet Corporation v. The Estate of Pyne, 26 N.Y.3d 58 (2015): Briefed and argued appeal in the New York Court of Appeals concerning the scope and meaning of contractual indemnification clauses in environmental cleanup cases. The lower court had held that the client was not entitled to indemnification for environmental cleanup costs associated with a Superfund site; in a unanimous decision, the Court of Appeals reversed and held that the client was entitled to full indemnification.
Bristol-Myers Squibb Co. v. Mylan, 586 F. App’x 747 (2d Cir. 2014): Briefed and argued appeal regarding contract dispute with generic drug manufacturer. The lower court had dismissed client’s complaint for failure to state a claim; the Second Circuit unanimously reversed and remanded for further proceedings.
Kestenbaum v. Durez Corp., Nos. 190421/11, 190143/11, 190321/11, 190399/11, and 190436/11 (N.Y. App. Div. 1st Dep’t.): Represented Union Carbide Corporation in two interlocutory appeals in the New York Appellate Division in Manhattan. One appeal concerned the propriety of an order joining multiple unrelated cases for a single trial; the other raised questions regarding the type of evidence sufficient to establish exposure to a hazardous substance. Briefed and argued.
Philip Morris USA Inc. v. Russo, 175 So.3d 681 (Fla. 2015): Represented Philip Morris in an appeal to the Florida Supreme Court raising the question of whether Florida’s 12-year statute of repose for fraud actions bars suits brought more than 12 years after the plaintiff relied on a fraudulent act. Principal drafter of the briefs; the case was argued by Florida counsel.
Offshore Exploration and Production, LLC v. Morgan Stanley Private Bank, N.A., 626 Fed. Appx. 303 (2d Cir. 2015): Represented the national oil company of Colombia in a Second Circuit appeal concerning the propriety of a $75 million arbitral award in favor of our client and the national oil company of Korea. Argued by counsel for co-defendant.
Mulholland v. Philip Morris USA Inc., 598 Fed. Appx. 21 (2d Cir. 2015): Briefed and argued appeal for Philip Morris challenging a $5.5 million jury verdict in a wrongful-death case. Previously represented the defendant as lead legal issues counsel at trial.
Schwarz v. Philip Morris USA Inc., 272 Or. App. 268 (Or. Ct. App. 2015): Represented Philip Morris in an appeal from a $25 million punitive damages award entered after a damages-only retrial. Previously represented the company in its successful appeal of the original award to the Oregon Supreme Court, and at the retrial. Principal drafter of briefs; argued by Oregon counsel.
Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C. V., 17 N.Y.3d 269 (2011): Principal drafter of briefs filed in the Appellate Division (as Appellant) and the New York Court of Appeals (as Respondent). The Appellate Division reversed an order denying clients’ motion to dismiss a lawsuit seeking over $900 million in damages; a unanimous Court of Appeals affirmed, enforcing a release that required dismissal of the complaint and entry of judgment for our clients.
Star One S.A. v. Andesat S.A.E M.A., 909 N.Y.S.2d 634 (1st Dep’t. 2010): Briefed and argued appeal from the denial of a motion to disqualify opposing counsel in high-stakes arbitration. Appellate Division reversed and granted judgment in favor of client.
Philip Morris USA v. Williams, 129 S. Ct. 1436 (mem.) (2009): Co-authored merits briefs in Supreme Court case addressing the adequate-and-independent-state-ground doctrine.
Broadcast Music, Inc. v. Weigel Broadcasting Co., 340 Fed. Appx. 726 (2d Cir. 2009): Briefed and argued appeal in dispute between a television broadcasting company and a music licensing company. Negotiated partial settlement of earlier dispute and stay pending appeal.
Mensing v. Wyeth, Inc., 588 F.3d 603 (8th Cir. 2009): Represented name-brand drug manufacturer in personal injury suit brought by a patient who was injured after ingesting a generic drug. The Eighth Circuit affirmed judgment in favor of client.
Adamo v. Brown & Williamson Tobacco Corp., 11 N.Y.3d 545 (2008): Principal drafter of briefs filed in the Appellate Division (as Appellant) and the Court of Appeals (as Respondent). The courts vacated a $20 million judgment against our client, holding that a plaintiff cannot prove negligent design in a product liability case without showing that the proposed safer alternative would have been acceptable to consumers.
Chemtall Inc. v. Madden, 655 S.E.2d 161 (W. Va. 2007): Drafted amicus brief on behalf of a trade organization challenging mass adjudication of punitive damage claims in consolidated action.
Koegel v. Baugur Group, HF, 2007 U.S. App. LEXIS 11373 (5th Cir. 2007): Represented large overseas employer in an appeal in a fraudulent-inducement suit brought by two former executives. The Fifth Circuit affirmed the dismissal of claims against our clients on personal jurisdiction grounds.
Williams v. New York City Transit Authority, 31 A.D.3d 631 (2d Dep’t. 2006): Briefed and argued appeal on behalf of a passenger who was injured while riding the subway.
Trial-Level Legal Strategy
Served as legal issues counsel at 30 jury trials since 2011 in federal and state trial courts in New York, Florida, Massachusetts and West Virginia. Responsible for briefing and arguing motions in limine, dispositive motions, for-cause challenges to prospective jurors, exhibit objections, jury instructions, directed verdict motions and post-trial motions.
Responsible for legal strategy, motions practice, jury instructions and issue preservation in connection with several other recent and upcoming trials in Oregon, California, New York, New Jersey, Massachusetts, Florida, New Hampshire, Connecticut and Missouri, including multiple punitive damages retrials and several mass and class actions.
Milios v. United States, No. 19-291-pr (2d Cir. 2020); No. 13-cr-00159 (D. Conn.): Represented incarcerated defendant in appeal from denial of pro se habeas petition claiming ineffective assistance of counsel. Also represented client in compassionate release proceedings in the district court.
Morales v. United States, 651 Fed. App’x 1 (2d Cir. 2016): Briefed and argued habeas appeal on behalf of incarcerated defendant challenging his sentence on constitutional grounds. The district court denied relief; the Second Circuit unanimously reversed, finding that the defendant’s Fifth Amendment rights had been violated during his sentencing hearing. The case was remanded for re-sentencing.
United States v. Rosemond, 841 F.3d 95 (2d Cir. 2016): Represented high-profile criminal defendant in appeal from murder-for-hire conviction. Second Circuit reversed and remanded for a new trial.
United States v. Shellef, 718 F.3d 94 (2d Cir. 2013): Briefed and argued criminal appeal raising issues related to the proper application of the Speedy Trial Act.
Costello v. N.Y State Bd. of Parole, No. 6880/11 (N.Y. Ct. App. 2104): Represented seven former members of the New York State Board of Parole, as amici curiae, successfully urging New York’s highest court to limit the parole board’s ability to rescind a grant of parole in the absence of substantial new evidence regarding the original crime. Represented amici in the Appellate Division (3d Dep’t.) as well, and on petition for review.
People v. DiGuglielmo, 17 N.Y.3d 771 (2011): Represented murder defendant in pro bono appeal to the New York Court of Appeals.
United States v. Black, 530 F.3d 596 (7th Cir. 2008): Represented high-profile newspaper publisher in a Seventh Circuit criminal appeal challenging the district court’s interpretation of the “honest services” provision of the federal mail fraud statute.
United States v. Quattrone, 441 F.3d 153 (2d Cir. 2006): Represented high-profile investment banker in the successful Second Circuit appeal of his federal obstruction of justice conviction. In the wake of the court’s decision, as described by Time magazine, “prosecutors waved a white flag” and abandoned any effort to pursue a retrial.
United States v. Pinzon (E.D.N.Y. 2009): Represented criminal defendant at the trial court level. Successfully argued for dismissal of original indictment and withdrawal of guilty plea. Negotiated plea agreement with the government on superseding indictment.
Certification From the Second Circuit to the N.Y. Court of Appeals: A Guide, New York Law Journal, April 10, 2017.
How to Write and File an Effective Amicus Brief, New York Law Journal, August 24, 2015.
How to Preserve Instructional Errors, Los Angeles Daily Journal, March 30, 2015.
Is Booker a “Loss” for White-Collar Defendants?, Federal Sentencing Reporter, February 2, 2008 (with Hector Gonzalez and Matthew D. Ingber).
Federal Grand Jury Investigating a Corporate Client? Counsel Wisely, New York Law Journal, March 29, 2004.
Punitive Damages: Strategies for Trial and Appeal; Statutory and Constitutional Boundaries, Strafford CLE Webinars, June 2019.
Appellate Advocacy, Panel, Practising Law Institute (PLI), March 2012, 2014, 2016, 2019.
Shook Hardy Snags NY Appellate Partner, Law360, March 29, 2021.
Court Vacancies Mean Trump Gets to Nominate 12% of All Federal Judges From Day One, BuzzFeed News, December 29, 2016.
Second Circuit Says Conn. Judge Erred in Excluding Defendant From In-Camera Conversation, Connecticut Law Tribune, May 16, 2016.
Superfund Notice Held to Trigger Indemnity Clause, Bloomberg BNA, October 23, 2015.
Former Plant Owner’s Estate Liable for Site Cleanup, The Daily Record of Rochester, October 22, 2015.
Remet Not Liable for Canal Cleanup, NY High Court Says, Law360, October 21, 2015.
Preserving Issues for Appeal, New York Law Journal, August 25, 2014.
Scott Chesin, New York Law Journal Rising Star, New York Law Journal, June 5, 2013.
Ex-Parole Commissioners Decry Rescission of “Cop Killer” Release, New York Law Journal, November 26, 2012.