Elisabeth Layton

Hometown: New York, NY
Current Job: Senior Counsel at the U.S. Department of Justice, Civil Division, Federal Programs Branch
Undergrad: Yale University, B.A. 1990
YLS year: Class of 1996 (J.D. attained in 1997)
Clerkship: Judge Gladys Kessler, U.S. District Court for the District of Columbia
Activities at YLS: Yale Law & Policy Review, Lowenstein Project, Lowenstein Clinic, RA for Professor Owen Fiss, USAID Linkages Program (now SELA)


How did you get to your current position?

I spent the summer after my 1L year working in D.C. with the Legal Aid Society. I split my second summer between Cleary Gottlieb in New York and O’Melveny & Myers in D.C. After law school, I clerked for Judge Gladys Kessler on the U.S. District Court for the District of Columbia. Following my clerkship, I returned to O’Melveny & Myers in D.C. While in private practice, I split my time between two practice groups: first, general litigation, in which the practice was mostly class action defense; and, second, international trade law. My international trade work involved a lot of administrative law and I was often representing foreign clients before U.S. international trade agencies. I enjoyed the travel and the work with foreign clients, and I enjoyed arguing an administrative appeal in the U.S. Court of International Trade and winning. My work on that appeal was similar to the kind of administrative litigation that I do now. In June 2002, I started at DOJ and I’ve been here ever since.

What kind of work do you do in your current job?

It’s a lot of administrative law with a fair amount of constitutional law and a sprinkling of miscellaneous high-profile cases and issues thrown in. My department, the Federal Programs Branch of the Civil Division, represents federal agencies at the district court level when they are facing lawsuits challenging their regulations, policies, or programs. In addition, we represent the United States in defending the constitutionality of federal statutes in a variety of contexts. We often litigate issues of first impression. Over the past couple of years, a number of attorneys in my office have been busy defending against challenges to the Affordable Care Act.

When a case comes into the department a decision is made about whether it should be handled by a U.S. Attorney’s Office, by Main Justice, or both. We tend to handle a case if it’s high profile, if it involves specialized knowledge of administrative law, if it’s one of multiple similar challenges, or if it threatens a whole program or policy. We have smaller dockets than U.S. Attorneys, so we can spend more time on our cases.

Line attorneys like me are not expected to have subject-matter expertise. I really wanted to continue to be a general litigator and this is one of the few places where you can be a generalist so many years out of law school. In private practice there is pressure to specialize to make yourself more marketable, so it’s hard to remain a generalist. The variety of the work keeps it interesting and challenging.

Why did you decide to work at a firm after your clerkship?

Coming into law school, I was more oriented toward a public interest career, and I did clinic work and public interest work over summers. But I had a surprisingly positive experience at O’Melveny as a summer associate. I decided to return there after my clerkship because I wanted to make sure that I would get excellent training at the start of my career.

Having seen all kinds of lawyering during my clerkship, I became convinced that a top priority in the first few years of my legal career should be to get great training. My clerkship convinced me of something I hadn’t necessarily believed in earlier – that there is training and there are skills that any lawyer needs to have early in their career in order to become an excellent lawyer, and that my priority should be obtaining that training before determining where I wanted to put it to use.

I could have tried to go directly into DOJ after my clerkship through the Honors program, but I didn’t apply. I’d had such a positive experience at the law firm and I was interested in paying off my loans. My experience in private practice has been useful. Coming into my current position, I already had litigation experience and administrative law experience under my belt. In addition, I had experience working with extremely talented attorneys and working directly with demanding clients. I was ready to take on more direct responsibility for cases at DOJ.

Why did you make the move to DOJ and how does it differ from private practice?

I wanted to handle a variety of interesting cases, and to handle them with a greater degree of independence than a big firm could offer me. I also wanted a better schedule while still working with high-caliber people on interesting cases. Being a DOJ attorney has enabled me to escape the billable hour and business generation pressure of private practice, while at the same time doing high-profile work as a litigator.

By and large, I find my cases now more interesting than my cases in private practice were. And my colleagues are just phenomenal. The best thing about my current position is that I continue to work with extremely smart, high-caliber attorneys.

Government also isn’t hierarchical in the way private practice is. Especially when I first started at DOJ, it was liberating that no one cared whether I was 5 or 6 or 7 years out of law school. There is no pressure to bill hours or bring in clients. There are no requirements for “face-time” as there seemed to be in private practice. There is no shame in walking out the door at 5:30 p.m. on days when I don’t need to stay later or leaving early when I need to go to my kid’s school play. I also have more flexibility on working from home, which I typically do once a week when my schedule permits.

I often tell people that mine is the most family-friendly job you can have as a trial court litigator. But that – being a trial court litigator – puts a definite limit on how consistent or limited the hours can be. I still need to get my work done, and I don’t have a lot of support staff or any junior associates, so when a case heats up and there are emergency deadlines, I am sometimes working around the clock for a while. So that’s the flipside that comes with leaving a law firm – doing without a law firm’s resources, which often means having to do everything myself under tight time constraints.

How valuable was your clerkship experience?

My clerkship was extremely valuable. As the years go by, I draw more on my own litigation experience, but having clerked for a district court judge also always informs my work litigating in district court. As a litigator, you’re always trying to figure out how the judge will handle different issues and what arguments he or she will find most persuasive. Sometimes when I’m considering what a judge will do on a particular issue, I remember something about how my judge handled a similar issue. Just because my judge ruled a certain way doesn’t necessarily mean that’s what will happen in the current case, but it’s just one more piece of information. Those little bits of information are crucial in litigation.


How well did your time at YLS prepare you for your career?

I was not the most practical law student – I took classes that interested me. It was interesting as an intellectual experience. I was able to take fantastic courses with fantastic professors. I think law school honed my analytical abilities, my ability to “think like a lawyer” and my ability to express myself like a lawyer, but I can’t say there were particular classes that prepared me better than others for day to day work in any part of my career.

Analytical and writing skills are essential, so Rob Harrison’s legal writing class was probably the most practically useful in all the work I’ve done since. For particular cases I’ve worked on in my current job, I’ve certainly drawn on what I learned in Jerry Mashaw’s Administrative Law class and Vicki Schultz’s Employment Discrimination class.

The practical details of civil procedure I certainly did not learn at YLS. That’s part of where the clerkship was particularly useful. Although there was a bit of a steep learning curve early in my clerkship, by the end I had learned a tremendous amount of civil procedure that has been helpful in all of my litigation work since then.


How have you handled work-life balance issues?

I was not very good at balancing work and life before law school when I worked on Capitol Hill, or during my clerkship, or as a law firm associate. My usual approach was to throw myself entirely into work when I needed to. I would disappear into work for weeks at a time and then re-emerge in the world after a big deadline and try to take advantage of a bit of downtime. Especially since I used to travel abroad quite a bit while working in my former law firm’s international trade practice, there would usually be some downtime after trips, so it was easier to work with these ebbs and flows.

That was before I had children. I knew I would have had a hard time making the time I wanted to for my family in that environment. I came to DOJ knowing that it’s easier to find that balance in government. The caveat is that being a trial litigator is a big limitation. The opportunities to work from home, for example, have expanded a lot since I’ve been at DOJ. Now I can do that once per week and as needed. But if I have to be in court or take or defend a deposition, those are days I can’t work from home. On the days when I would be largely at my computer, there’s a lot of flexibility.

How have you seen the role of women in the legal profession change over the course of your career?

The major changes I’ve noticed have to do with where I am. There’s still work to be done in my current workplace, but it doesn’t feel like such a boys club. Certainly things like who you play golf with don’t matter. There are some female leaders who have been very helpful. In private practice, to a large extent what the client says goes. If they wanted a man to be the lead counsel, for example, at least when I was in private practice, they usually got what they wanted. It’s different when you’re representing the government because we have such a different relationship with our client.

There can still be challenges in government, though. Early on in my time at DOJ, I was working on a case where I was the person who had written the briefs and memos, but there was an older male lawyer serving as lead attorney on the case. We were scheduled to have a meeting with the client, who I was told was from the military and had some very old-fashioned views. First the client said I couldn’t attend the meeting because I didn’t have a high enough rank. A woman leader in my office got involved in negotiating and said she was horrified. The compromise we ultimately negotiated was that I would be allowed to attend the meeting, but I wouldn’t speak. So it was progress of sorts, but there was clearly much room for improvement.

I don’t see a straight line of continual progress in the position of women in the legal profession. I think if you graphed the progress you would see jagged lines, with sharp improvements that are sometimes followed by setbacks. There is progress, but it’s not across the board, uniform progress. For example, we may soon have another female attorney general, and I see that as progress even though she wouldn’t be the first female attorney general. Until it’s routine, we have progress to make.


What advice would you give to current YLS students?

If I were giving advice to women at YLS, I would say a major part of their academic and later work experience should be cultivating mentors. I used to think that mentors would just naturally find me and often that is not the way it works. The whole concept of “managing up” was not something I ever heard mentioned, much yet discussed, yet it is so important in legal careers as in other fields. Perhaps these techniques are discussed and taught these days, which would be to the advantage of YLS women. There’s so much writing on these issues now after Lean In, so I hope that current YLS women think much more than I do about ways to plan and manage their careers.

Also, law school is an important time to be your own advocate. I was always reticent to take up my professors’ time, and looking back I think that was ridiculous. Go to office hours, talk to your professors. I didn’t take enough advantage of the incredible access YLS students have to their professors. You should try to take advantage of that even when it’s not with an agenda, before it gets to be time to ask for recommendations.

I also think the whole concept of managing a career is something that deserves more thought. Nowadays there is much more of that sense. I recall having heard professors talk about their career paths and much of the time, what they emphasized is happenstance in how they got where they were. I think grabbing the reins to try to steer where you go is valuable. It’s not something that I really consciously thought about enough.