By Robert Loerzel
Michael Y. Scudder Jr.is not the sort of lawyer who makes his points with dramatic flourishes.
You're not likely to see him pounding on the table. He is calm, deliberate and soft-spoken. But colleagues say that when Scudder speaks, people listen.
Scudder worked at the White House before coming to Chicago in February, when he joined Skadden, Arps, Slate, Meagher & Flom as a litigation partner. For the previous two years, his job was giving legal advice to the administration of President George W. Bush.
Bill Burck, who was deputy counsel to the president, said Scudder's signature characteristic was that he always remained calm under pressure.
"These were literally the most controversial, most hot-button, most high-pressure national security issues that the administration faced," Burck said. "That was his day-to-day life. ... He never panicked. You never even saw him sweat."
Before his White House position, Scudder had a similar reputation when he was prosecuting drug, murder, gang and pedophilia cases for the U.S. attorney's office for the Southern District of New York.
Lawyers who worked there with Scudder said he wasn't flashy in the courtroom. But he was quick and effective at organizing evidence and planning a trial - and he knew how to persuade a jury with his "just the facts" demeanor.
Now that he's working at Skadden, Scudder is impressing another group of colleagues with his thoughtful approach as he advises companies facing potential securities lawsuits or prosecutions for white-collar crimes.
"One of the most important attributes he has is resolving contentious issues, either civil or criminal, without acrimony," said Wayne Whalen, head of Skadden's Chicago office. "He's a very even-tempered, measured human being."
A Hoosier boy
Scudder, who grew up in Fort Wayne, Ind., thought about pursuing a law degree when he was studying accounting at St. Joseph's College in Rensselaer, Ind. He took a class in constitutional law and found the subject fascinating.
"I liked accounting even more, though, and wanted to get out and enter the business world - get out and practice a little bit," Scudder said.
So that's what he did. After college, Scudder was an auditor for Ernst & Young in Fort Wayne. But he soon realized that his work as an auditor was all about the past - examining things that had already happened. He noticed lawyers advising the same companies about what they should do in the future.
"That seemed more exciting to me than the audit work," he said.
Scudder enrolled at Northwestern University School of Law, thinking he would focus on corporate transactional law. But he quickly discovered that he loved other subjects, too, including constitutional and criminal law.
After passing the bar in 1998, Scudder clerked with Judge Paul Niemeyer of the U.S. Court of Appeals for the 4th Circuit in Baltimore. Scudder followed up that experience with an even more prestigious position - working for Justice Anthony Kennedy at the U.S. Supreme Court from July 1999 to July 2000.
"He's warm, engaging, a great conversationalist," Scudder said of Kennedy. "It's hard to find a topic that he doesn't know quite a bit about. He's eclectic in his interests. He's a real theater buff. Sometimes he would get talking about a Shakespeare production - just extraordinary levels of detail, contrasting this or that tragedy to the other. On other occasions, he'd be talking about some aspect of U.S. history, some president in the past, or some Supreme Court justice from way back. The next day, he'd be talking about the ball game."
During the year Scudder was there, the Supreme Court heard cases involving partial-birth abortions, the Miranda warning and school prayer.
Although Kennedy is a key swing vote, Scudder never got the feeling that Kennedy thought of himself as any more important than the other eight justices.
"Justice Kennedy just takes the cases one at a time," Scudder said. "And he puts an extraordinary amount of effort into each one of them."
Scudder said he loved working as part of a team with a judge and other law clerks.
"Those are very close-knit relationships for that year," he said.
It was a great experience that prepared Scudder for the sort of teamwork he would have in later jobs, he said.
Another clerk in Kennedy's office that term was Burck, who later worked with Scudder at the U.S. attorney's office and then in the White House.
When Burck met Scudder for the first time, he said he thought, "Is this guy for real?" Scudder seemed almost too nice to be believed, Burck said.
"He was like the quintessential Midwesterner in some ways," Burck said. "He was an honest, aw-shucks kind of person who genuinely believed that there's right and wrong in the world."
Being a public servant
After clerking, Scudder worked for two years at Jones Day in Columbus, Ohio, mostly handling appellate cases. Then he took a job as an assistant U.S. attorney in the Southern District of New York.
"Why in the world would you pick your family up from Cleveland, Ohio, out of a great law firm, to go make next to no money prosecuting?" Scudder said. "Worse yet, why would you go work in the pressure cooker of the White House? ... You could get right into a law-firm setting and be very comfortable. I had a lot of people ask me that."
The answer, Scudder said, is public service. And he urges all young lawyers to consider serving the public by working in a government position.
"My experiences were nothing but phenomenal in the government," he said.
The U.S. attorney in New York who hired Scudder, James Comey, was impressed right away when he interviewed Scudder for the job.
"I could tell that he was going to be a star, to be honest," said Comey (who later became deputy attorney general and is now senior vice president and general counsel of Lockheed Martin). "I thought that he was not only incredibly smart, but a person of great common touch - that is, an ability to work with police officers and agents and victims.
"He is somebody who can easily be overlooked in a crowded room of loud lawyers because he is so quiet," Comey said. "But once you get to know him, when Mike Scudder speaks, you shut your mouth and you listen. He's not going to talk often, but when he talks, he's going to say something that's worth saying."
Comey handed Scudder a big case for his first trial: the prosecution of Stefan Irving, who was charged with traveling to Mexico and Honduras to molest boys, as well as possessing child pornography. Scudder said one of the challenges of this "sex tourism" case was deciding how much of the disturbing evidence to present. What was the right tone to use when showing evidence, including child pornography, to jurors?
Burck, who watched the trial, said Scudder handled the case in exactly the right way.
"He basically just laid out the evidence," he said. "The instinct to pound the table and to sort of sneer and smirk and to point at the defendant and call him a pervert is so overwhelming in a case like that. And Mike took exactly the opposite approach, which was absolutely matter-of-fact."
Scudder said he knew jurors would be repulsed by some of the evidence that authorities found on Irving's computer, including pornographic videos featuring young boys.
"We made judgments about it," Scudder said. "Look, we're only going to show a couple of those in court. ... I can remember vividly a juror in the front row at the trial recoiling on seeing one of these images. Lesson learned is: Think hard about your presentation of evidence."
"I think the jury was absolutely convinced by everything that Scudder said," Burck said. "They came back very quick with a verdict. It was a conviction across the board."
Another major trial Scudder handled was the prosecution of a drug gang.
Scudder calls that trial a "very satisfying experience" for a couple of reasons. For one thing, he enjoyed putting together a complicated prosecution with multiple defendants, numerous witnesses and a large array of evidence. But Scudder also believed he was making a dent in the drug problem.
"When you work on these gang cases, you've got to take them one at a time," he said. "And by dismantling these organizations and getting them off the street, you're cleaning up the neighborhoods one step at a time. This was a group that was moving extraordinary amounts of heroin and was very, very violent - wreaked havoc upon multiple blocks in the South Bronx. The approach was to take down the whole organization from bottom to top."
Heading to Washington
In the summer of 2006, Scudder moved to a job on the Justice Department's national security team in Washington. His work included serving as liaison to Iraq's court system, which was conducting the trial of Saddam Hussein.
Each day, Scudder monitored what was happening in the Iraqi courts and reported the news to the attorney general and his deputy. Scudder said the Justice Department helped the Iraqis with courthouse security and logistics, while letting the Iraqis run the trial itself.
"Rule-of-law initiatives are critically important in the reconstruction of a country," he said.
Beginning in January 2007, Scudder was associate counsel to Bush, reporting to White House Counsel Fred Fielding. Then, in October 2007, Scudder took on an additional role: general counsel of the National Security Council, reporting to National Security Adviser Stephen Hadley and meeting frequently with Bush. Scudder served in both of those capacities until the Bush administration left office in January 2009.
"I think that history will look favorably upon what President Bush did for the country following 9/11, including up through the end of his administration," Scudder said. "What I would emphasize ... is just the extraordinary difficulty of these questions."
For example, Scudder raised the issue of what to do with people captured during an ongoing war on terrorism.
"There's no historic analogue for the type of war we're fighting," he said. "You're not fighting against people in uniforms. It's all novel. It's all unprecedented. So if you were shouldering the responsibility of being the commander in chief, you're going to want all the different options. ... You're going to realize that you have an extraordinary responsibility of having to protect the country. And you're going to make the best decisions that you can in the circumstances without a playbook to draw upon."
According to Hadley and Burck, Scudder did not simply tell White House officials what they wanted to hear on legal questions, which is what critics have accused some of the Bush administration's other lawyers of doing.
"He was not a 'yes man' by any stretch of the imagination," said Burck, who is now a litigation partner at the Washington office of Weil, Gotshal & Manges. "He really was someone who tried to look at the issues from an objective perspective, taking into account all of the competing views. ... You knew you weren't just getting some particular political or ideological perspective when you talked to him."
"Mike had some of the most difficult issues to deal with," Hadley said. As an example, Hadley mentioned the question of how to structure military tribunals.
"There were also a lot of issues that came in that required a cool head," Hadley said. "And that's what Mike had. He's very well-organized, very methodical, very careful, but also the kind of lawyer who understands that there's a problem that needs to be solved. And he was very creative in trying to find a way to solve problems and trying to find a way forward that was fully consistent with the law. He doesn't get knocked off his pins."
Hadley, who is now senior adviser for international affairs at the U.S. Institute of Peace, said, "If he thought there was not a lawful way to do something, he was very clear that the administration and the president should not be doing it."
As an example, Hadley raised the scenario of interrogating a terrorist who might have knowledge about an imminent attack.
"There were people, particularly after 9/11, who said, 'Whatever you need to do to get that information is fine, even if you have to go beyond the law,'" Hadley said. "Well, the president of the United States completely rejected that view. And his view was 'I'm the chief law enforcement officer of the United States. I above everybody need to comply with the law.' That was clearly Mike Scudder's philosophy as well. ... His job was to make sure we stayed inside the law."
Part of Scudder's White House work was listening to people from different agencies and departments and trying to bring them to a consensus.
"Nobody would ever walk away from a meeting with Mike feeling as if they had been railroaded or they had been hoodwinked or tricked," Burck said. "He may not agree with you ultimately, but all those people would always feel like they'd gotten a fair hearing."
Shortly after joining the White House, Scudder conducted an internal investigation into the firings of seven U.S. attorneys. Scudder wrote a memo in March 2007 after interviewing Justice Department and White House personnel about the dismissals. The White House refused to release Scudder's memo, but in March 2009, former Bush administration officials agreed to let the House Judiciary Committee see the document.
Scudder declined to say much about the U.S. attorney firings, because they are still under investigation.
"The only thing I would say about that is I thought it was an unnecessary, self-inflicted wound," Scudder said.
A change of pace
As the Bush administration came to an end, Scudder said he was eager for a change of pace.
"I wanted to get back to the Midwest," he said.
Scudder, 38, and his wife and high school sweetheart, Sarah, have two sons and two daughters, ranging from ages 4 to 10.
"We had wanted to raise our kids in the Midwest," he said. "I had been on the East Coast for six years. We were eager to get back. Last summer, we decided upon Chicago."
Scudder had worked at Skadden once before, as a summer associate in the mid-1990s when he was a law student at Northwestern. He said he decided to return to Skadden because he was impressed by the firm's efforts to raise the profile of its litigation practice.
Chip Mulaney, a partner in Skadden's Chicago office, said the firm hired Scudder because of his wide-ranging government experience, as well as his background as a certified public accountant.
"That set of skills is hard to duplicate," Mulaney said. "What's not to like? That's a great background. And he's not even 40 yet."
Scudder's intelligence and personality were also factors in Skadden's decision to hire him.
"He's calm and reassuring in his manner and his presence," Mulaney said. "It doesn't mean his brain isn't going 90 miles an hour, but he doesn't sit there and vibrate as if he had too many cups of Starbucks in the morning."
Skadden hired Scudder at a time when the firm was putting more emphasis on handling matters involving white-collar crime. Scudder said his background in accounting is useful at Skadden, where some of his clients are companies that need to redo their financial statements.
"A company believes it may have financial problems on its hands and wants to investigate them internally to try to get ahead of a wave of litigation or government investigation," Scudder said. "That's kind of the bread-and-butter work of our litigation practice."
When Scudder advises companies facing potential lawsuits or criminal charges, it helps that he has worked as a prosecutor and government lawyer, he said.
Sometimes, his job is "trying to persuade the prosecutors that criminal action is not warranted," he said. "It helps to have been on the other side of the table for discussions like that - to know the way prosecutors often approach cases."
That background also helps when he tells clients what they should do. In some cases, that could mean advising a client to acknowledge some wrongdoing and work out the best deal possible with the government, he said.
"A good lawyer is always going to provide the client with their honest and candid assessment of the facts and circumstances," Scudder said.
Scudder said he expected a lot of securities litigation to result from the economic downtown. Some people might be tempted to sue a corporation after its stock price plummeted, accusing the corporation of wrongdoing, he said.
But he said there hasn't been as much litigation as he anticipated. He believes people were watching their budgets more closely because of the recession, making them reluctant to risk money on a lawsuit.
"Big litigation is costly, if you're going to bring it against a corporation," he said.
Outside the office, Scudder's hobbies include photography.
"What I really have a keen interest in right now is Indiana landscapes," he said. "I've got a number of good friends in Indiana on the lookout for good old barns and farm scenes."
In the office, Scudder enjoys taking a look at briefs written by other lawyers, offering advice on how to sharpen their arguments and hone their writing. Scudder said it's a good idea to have someone else look at your writing whenever you think, "This is really good. I just can't do much better than this myself."
With his wide range of experience, Scudder brings a "360-degree perspective" to the issues he deals with at Skadden, said Colleen Mahoney, a partner in the firm's Washington office.
"He has a much broader vocabulary than people who have just been on the left side of the table or on the right side of the table," she said.
Mahoney added, "What I really value in him and what I think clients appreciate as well is that he's very low-ego, low-drama. He doesn't say a lot. He doesn't wave his hands around. But everything he says matters."