Litigation

As outside counsel handling a new piece of litigation, where do you start?

At closing argument.

That’s an oversimplification, of course, but it’s a valuable one. When you’re retained to defend a new lawsuit, you have to figure out how your client can win. What’s the other side’s weakest point? What are your strongest points? Where’s the emotional appeal in your case? What legal angles can you exploit? You put all that together and then spend a couple of years developing an evidentiary record that builds your path to victory.

It’s not rocket science: Figure out how to win; get there. Good lawyers do it intuitively.

As in-house counsel, when we receive preliminary case assessments from mediocre outside counsel, we don’t get the route to victory. What do we get?

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A wise man once said, “Ask yourself whether you are happy, and you cease to be so.” Lawyers, allegedly an unhappy lot, are asked if they are happy all the time. Vault asks, Am Law asks, and in a roundabout way, so do we.

To date, we’ve received nearly 8,000 responses to our ATL Insider Survey. Among other things, our survey poses this question to law firm lawyers: “If you had the chance to do it all over again, would choose to work for your firm?”

Unsurprisingly, those who answer “yes” tend to highly rate their firms in such areas as compensation, culture, and training. For those that wish they could take a Mulligan when it comes to their choice of employer, the inverse is true. Here is a comparison of ratings scores (on a scale of 1-10) for the various aspects of law firm life, broken out by responses to the “Mulligan” question:

SUBJECT ”Yes” ”No”
Compensation 7.81 5.35
Hours 7.38 4.81
Firm Morale 7.7 3.53
Training 7.45 4.32
Culture and Colleagues 8.56 4.56

Hardly counterintuitive stuff, we know, but it allows us to use the “Mulligan” response as a proxy for overall happiness/satisfaction, as it’s so broadly predictive of the nature of the individual’s assessment of his firm.

Back in April, we shared our survey findings showing that Davis Polk was the top firm when it came to morale (to date, this holds true.) Today, we look at whether there are notable differences regarding satisfaction based on practice area. If we slice our survey data by practice, we find that there certainly are. So after the jump, let’s look at how practice groups stack up against one another in terms of the happiness of its practitioners….

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The relatively new Boston office of Latham & Watkins seems to be going gangbusters. Even though it’s just a year old, it already boasts at least 24 lawyers. (For what it’s worth, they seem to be an unusually attractive bunch; I haven’t seen such a good-looking crop of Boston lawyers since the days of Ally McBeal.)

And their ranks are about to grow. Above the Law has learned that at least three litigation partners are leaving their current firm to join Latham’s Beantown outpost.

Who are they, and where are they coming from?

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Say what? One of Above the Law’s favorite subjects, celebrity lawyer and author Elizabeth Wurtzel, got attacked by a penguin?

Yes — in a manner of speaking. Penguin Group, the publishing mega-house, recently sued the bestselling and critically acclaimed authoress, seeking the return of her advance money. Other prominent authors have been sued as well.

How much does the publisher want back from La Wurtzel? What are her possible defenses? And who are some of the other high-profile defendants being pursued by the angry Penguin?

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Each year, Corporate Counsel compiles a list of the firms that the Fortune 100 companies use as outside counsel. These are the firms that corporate clients turn to when they’ve got bet-the-company litigation. From Exxon Mobil to Apple to Walmart, and everywhere in between, these are the clients with the deepest of pockets, and if you care at all about the business end of the law, then this is a list that you should care about.

But this time around, the list looks a little different. Due to the state of the economy, general counsel are now looking for more ways to reduce costs, and are constantly seeking out alternative fee structures. The firms on this year’s list may have been the ones that were most amenable to such changes.

Without further ado, let’s take a look at which firms topped this year’s list….

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I was recently asked to write an article about the future of Biglaw. (That’s one of the benefits of writing this column: Writing yields more opportunities to write. Like first prize at the pie-eating contest.)

I naturally asked some Biglaw acquaintances what they saw in their firms’ futures, in an effort to generate some grist for the article’s mill. (Given that I occasionally write in unbelievably awkward, and arguably unintelligible, mixed metaphors — such as “grist for the article’s mill” — it’s a wonder that Lat even permits me to continue writing this column, let alone that others solicit me to write in other fora. But that’s neither here nor there.)

What do my Biglaw lunch dates (and others whom I pester) say about their futures? They say many things, but one common refrain about the future of Biglaw is “consolidation. Big law firms will continue to merge, and only the biggest will thrive.” When I ask why firms will feel compelled to grow, folks often say: “Clients insist on it. Clients want one-stop shopping.”

What clients? Any real ones, or just theoretical ones? I, at least, don’t insist on one-stop shopping. . . .

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The average person is relatively honest. Why do we create rules that force otherwise honest people to lie?

We do this to many people. Think first about physicians.

For some reason, New Mom and Baby should spend one extra night at the hospital. Mom and Baby are doing fine, but the doctor sees a reason for one more night of rest. What does Doc do?

The insurance company won’t pay for, and Mom can’t afford, an extra night at the hospital, so Doc lies: He falsely notes that Baby is “jaundiced,” which justifies the necessary night at the hospital. The rules have turned Doc into a liar.

I’m sure that’s just the start of what the insurance bureaucracy does to turn honest physicians into routine liars. But I’m thinking today of rules that turn perfectly honest lawyers into liars. Once you start thinking about it, you’ll come up with endless examples . . .

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Fair is fair is fair is fair: First, I analyzed what drives partners nuts. Next, I revealed what drives associates nuts. Third, I suggested how secretaries could drive their bosses nuts. Which (unless my imagination improves) leaves only today’s column: How to drive clients nuts!

How can you drive clients nuts? Let me count the ways.

First, remember that it’s really not the client’s case; it’s yours! The client retained you. You’re tending to the thing. If you win, you’re going to link to the decision from your on-line firm bio. So take the case and run with it!

When journalists call, answer their questions. (Make sure they spell your name, and your firm’s name, correctly in the published piece. Free publicity can’t hurt.) That silly little client surely trusts you to handle the press properly and, if the client doesn’t, the client’s wrong.

In fact, don’t limit yourself to handling the press. Figure out what an appropriate settlement should be, and then move the process along on your own. Call opposing counsel and tell her that you haven’t yet run this idea past your client, but you think the case should settle for 500 grand. Tell her you’ll recommend that amount if she’ll recommend that amount, and see what happens. The client will be pleased that you evaluated the case and sped the process without bothering the client at all. That’s both convenient and cost-effective: You’ll be a hero! (It’s quite unlikely the client was thinking more broadly than you are, considering the effect of settling this case on business issues, or other cases, or the like. After all, it’s your case. Don’t be a weenie; you handle it!)

Great! We’ve pushed the client one step closer to the brink of insanity. What else can we do to nudge the client over the edge?

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Biglaw litigators are to be feared in general, but certain Biglaw litigation departments strike fear into the hearts of their opponents like no others. BTI Consulting Group recently polled 240 in-house lawyers to determine which Biglaw firms they dread “see[ing] as lead opposing counsel in a litigation case.” Each year, after culling through all of the survey results, BTI names the “Fearsome Foursome” — the most-feared litigation firms in the country.

This year, while two litigation powerhouses remained on the list, two prominent Biglaw firms were edged out by other worthy victors. Another 15 firms were honored as “Awesome Opponents.”

So which Biglaw firms are the most feared when it comes to litigation? Let’s check out the latest rankings….

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On Friday afternoon, after just under three days of deliberation, the Apple v. Samsung jury came back with a tidy little verdict awarding just over $1 billion to Apple. Meanwhile, Samsung got nothing on its counterclaims.

It was a big win for Apple, and it came surprisingly quickly. As Elie pointed out, it would take many smart people more than three days to even understand all the the terms within the 109 pages of jury instructions. Aside from the jury itself, it seemed no one was ready for the verdict. One attorney for Apple even showed up in a polo shirt.

Let’s have a post-mortem run through of the case (and a quick-and-dirty look at the massive attorneys’ fees incurred by both sides)….

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