Litigation

The legal industry has taken its lumps. At the top, growth is modest at best. At the bottom, law school applications have dropped off dramatically. There are scary book titles like Steven Harper’s The Lawyer Bubble: A Profession in Crisis (affiliate link) to spook the industry even more.

But some are pushing back against the gloom and doom and projecting a bright future ahead. The new hope for Professor Bradley T. Borden is third-party litigation financing (“TPLF”), dropping millions into lawsuits in exchange for a hefty cut at the end so they can party like a champ(erty).

Litigation finance is drawing considerable talent and will certainly change the way law firms and clients do business. But it’s no pathway to rekindle the pre-recession boom.

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Although I won’t name names here (because my employer is, among other things, the insurance broker to the stars, and I can’t afford to offend clients or potential clients), I just stumbled across an article that indirectly told me how to pick outside counsel.

In a relatively high-profile situation, a government entity recently had to retain an outside law firm. The government naturally retained an outside adviser to help the government make its choice. (How else could one possibly pick counsel?)

The outside adviser — I think you’d call the outfit a management consultant, although the website left me a little confused — has lots of MBAs on staff, but there’s not a lawyer to be seen. No matter: The MBAs created a questionnaire for the law firms to fill out, and the law firm that accumulated the most points won the business.

This is great! It’s time (once again) for me to stop thinking and start copying! We’ll revamp our whole system for choosing counsel! In the future, we’ll give the law firms who want our business a form to complete. We’ll add up the points — even I can do that. And then we’ll choose the law firm with the most points, thus retaining the best firm in the world to handle our matter through an objectively defensible selection process, in case anyone ever wants to second-guess our choice of counsel.

Shoot! If only I’d gone to business school, I could have been this smart! Let’s take a look at the questionnaire, so I’ll know the form that I’m copying to choose counsel for my next case . . . .

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Sometimes, we care about questions. Sometimes, we care about answers. Sometimes, we care about both.

When you’re reporting on a situation, remember that.

I see many, many interview reports that unnecessarily include questions when the reader cares only about answers. If you’re interviewing a witness, and the witness lived the facts (and you personally know bupkis), then we really don’t care about your questions; we care only about the witness’ answers.

So, when you’re reporting on your interview of the witness, do not assign an abbreviation to your name (Mark Herrmann, hereinafter MH), an abbreviation to the witness’s name (The Witness, hereinafter TW), and then report on your questions as though they mattered:

“MH asked . . . . TW responded . . . . MH followed up by asking . . . .”

We care only about the facts — which the witness knows, and you do not — so report only the facts:

“According to the witness . . . .” Your name should appear no more than once in the entire report, so we know who conducted the interview.

That’s a situation where we care only about answers. But there are other situations where we care only about questions . . . .

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Ed. note: This is the latest installment of The ATL Interrogatories, a recurring feature that gives notable law firm partners an opportunity to share insights and experiences about the legal profession and careers in law, as well as information about their firms and themselves.

What do Bob Dylan, Jerry Seinfeld, and Facebook have in common? Orin Snyder is their attorney. Orin is a litigation partner in Gibson Dunn’s New York office, and serves as Vice-Chair of the Crisis Management Practice Group and Co-Chair of the Media, Entertainment, and Technology Practice Group. He is also a member of the White Collar Defense and Investigations, Appellate, and Intellectual Property Practice Groups.

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If you’re a former Supreme Court clerk, the legal world is your oyster. In the words of one observer, “Supreme Court clerkships have become the Willy Wonka golden tickets of the legal profession. So many top-shelf opportunities within the law, such as tenure-track professorships and jobs in the SG’s office, [are] reserved for members of the Elect.”

If you work at a hedge fund, maybe after a stint at Goldman Sachs or a similarly elite investment bank, you’re the Wall Street version of a SCOTUS clerk — at the top of the field, but with way more money. There aren’t many Lawyerly Lairs out there that cost $60 million (the cost of hedge fund magnate Steve Cohen’s new Hamptons house).

What could lure four high-powered lawyers and hedge-fund types, including two former clerks to the all-powerful Justice Anthony Kennedy, to leave their current perches? How about the chance to earn the kind of money that would make a Supreme Court clerkship bonus look like a diner waitress’s tip?

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I’ve finally plucked “big firm mediocre” out of my life.

First, I left Biglaw, so I’m no longer revising lifeless drafts that arrive either up through the ranks or from co-counsel.

Then, my corporation entered fixed fee deals for virtually all of its litigation work. We invited only firms that do good work to compete for our business, and the winners have performed as expected: No brief arrives at our doorstep until it’s been reviewed by someone who can write.

But we still have a few strays: There are cases in oddball jurisdictions or involving unusual specialties where we select counsel on an individualized basis. And we still have old cases lingering from before our fixed-fee days staffed by an assortment of counsel. Once in a long while, I still run into briefs written in the “big firm mediocre” style.

What’s funny is how consistent it is. Although the briefs address different subjects in different jurisdictions, and they’re written by different people, “big firm mediocre” constitutes its own distinct literary genre. Care to write in that genre (or assess whether you already do)? Here are the characteristics:

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Unlike the latest Harmony Korine movie, filled with neon bikinis, former Disney princesses. and James Franco in bad dreads, my Spring Break consists of hanging with my kids while my wife works 24/7 on a grant application. We don’t make annual pilgrimages to Turks and Caicos; we make bi-weekly trips to Wegmans. But you know what? I signed on for this, and no amount of island sand can replace the sound of my younger boy reading a bedtime story to his little sister for the first time last night.

I read with interest the compensation package for the anonymous in-houser that Lat posted yesterday. In the comments, I pointed out that the package wasn’t outrageous or impossible, just that it was (way) outside of the norm. And that is okay. I chose this life and I am happy to say that it has been a soft landing for me. I have a good job, in a real estate market that is hard to beat — anywhere.

Lat is correct that Susan, Mark and I need to be circumspect about compensation; it would not do for our employers to see a pay scale pasted on these pages. So what can I say about my comp?

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In Old School, when Mitch, Frank, and Beanie tied string to cinderblocks and their prospective members’ members before throwing the blocks off the roof, their fraternity gravely injured a pledge. While Weensie ended up just fine in the film, fraternities across the country cause injuries and even deaths with some frequency.

If someone is negligently or intentionally injured by a multi-million dollar organization, one would expect to see a lawsuit followed by a quiet, insurance-funded settlement.

But fraternities don’t roll like that, bro…

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Patricia A. Martone

“You can’t eat the orange and throw the peel away — a man is not a piece of fruit.”

– Arthur Miller, Death of a Salesman (affiliate link)

Take this famous line and replace “man” with “law firm partner,” and you’ve captured the gist of the lawsuit against Ropes & Gray brought by Patricia Martone, who alleges age and sex discrimination by her former firm. (Martone, a former IP litigation partner at Ropes, is now a Morrison & Foerster partner.)

When I broke the news of this lawsuit back in 2011, I expected a speedy settlement. Would Ropes really want to go toe to toe with a pair of high-powered litigatrices, namely, Martone and her formidable employment lawyer, Anne Vladeck?

But here we are, two years later, and the battle rages on. Ropes has hired a third leading litigatrix to defend itself. Let’s learn the latest news….

(Note the multiple UPDATES at the end of this post.)

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Stanley M. Chesley

Has the “master of disaster” been mastered by disaster? Has a class-action king been stripped of his crown?

It would seem so. One of the nation’s most famous and successful plaintiffs’ lawyers, Stanley M. Chesley, just got disbarred.

Cue the schadenfreude. We heard about the news from numerous tipsters. “Time to downgrade your Maybach and jet,” gloated one.

What makes it even better, of course, is that Stan Chesley is married to a federal judge, the Honorable Susan J. Dlott (S.D. Ohio). What’s that old saying about Caesar’s wife?

So what got this high-flying class-action lawyer grounded? Hint: it’s all about the benjamins….

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