Diversity in Practice: The trailblazers

By Arin N. Reeves, J.D., Ph.D.
The Athens Group

Branch Rickey, the general manager of the Brooklyn Dodgers in 1945, did not just seek the best black player to break baseball’s major league color line; he actively sought ”the right man,” a trailblazer.

According to Rickey, he had to find ”the right man as a player [and] the right man off the field. … He must be a great player … a man of exceptional intelligence, a man who is able to grasp and control the responsibilities of himself to his race and could carry that load.”

He found Jackie Robinson, an athlete who lettered in baseball, football, basketball, and track at UCLA and had already experienced and risen above the challenges of playing in integrated sports competitions. Robinson blazed a trail with the minor league Montreal Royals in 1946 and integrated major league baseball when he donned the Dodgers uniform in 1947.

In Robinson, Rickey indeed found ”the right man,” a record-breaking Rookie of the Year (1947) / MVP (1949) / six-time All-Star player who excelled in spite of racial hatred and violence from his fans and teammates alike. Rickey set off to recruit a black player who could meet major league standards, but by the end of Robinson’s first year, the majority of the major league could not have met the standards set by the first black player.

In the book, ”Moneyball” (2004), Michael Lewis introduces us to the Oakland A’s circa 2000, ”a small group of undervalued professional baseball players and executives, many of whom had been rejected as unfit for the big leagues, who had turned themselves into one of the most successful franchises in Major League Baseball.” A diverse team of non-superstars, the A’s did not look for the right men; instead, they chose good baseball players who worked to make the team right. A trailblazing organization with no individual superstars.

The barriers that Jackie Robinson broke in the 1940s inevitably made it possible for the A’s to break the mold in the 21st century. So, which model works better for diversity in the legal workplaces today: individual trailblazers breaking barriers or collective teams breaking the old molds of what it takes to compete and succeed?

In the field of diversity and inclusion, we celebrate trailblazers. Trailblazers are the barrier breakers and history makers. They are the people of color who, in small but brave numbers, fill the partnership and general counsel boxes in surveys. They dot the landscape of our state and federal judiciaries. Trailblazers signal the break from past limitations, but they don’t necessarily represent all of the perfectly able lawyers of color; they represent only those who are the spectacularly able and most willing to endure the rigorous dual careers of practicing law and blazing trails.

I was at a panel discussion on diversity several years ago when a young black lawyer asked the panelists if they thought it was possible for him to succeed in a law firm if he did not want to be a trailblazer. ”Not yet,” replied one of the panelists, ”we are still fighting for a star’s right to shine. We are a long way from average minorities having the same opportunities as average whites.” To be a successful minority lawyer, you had to also sign up to be a trailblazer.

The phrase, ”qualified minority,” is invoked in almost every dialogue on diversity; yet we rarely question why a minority needs the qualified qualifier in contrast to a white lawyer who does not.

”Qualified minority” is a phrase that stirs itself into most diversity efforts with a transparent ease that belies its presumptive nature — a minority is not fully qualified unless explicitly stated.

It takes a trailblazer to break through this presumption, and the trailblazer is celebrated for his accomplishment. The presumption, however, is left unchallenged. More importantly, the proposition that the majority of white lawyers could not meet the standards set by minority trailblazers is left unexamined.

The need to be explicitly defined as qualified is a professional stressor (and offense) endured by many minority lawyers.

The reality of having to blaze the trail you travel while achieving professional excellence in an environment where you are neither represented nor fully included is a reality that many minority lawyers accept; however, very few are willing to pay the price of living that reality for long.

So, many of the perfectly able leave because they are simply not willing.

Sixty years after Branch Rickey’s quest for the ”right man” to break down racial barriers, many diversity efforts still rely on trailblazers. Trailblazers are, by definition, remarkable. They are also, by reality, rare. The Oakland A’s give us an alternative model for diversity — a focus on high-performing teams that derive their success from their ability to leverage their differences and work toward a common goal.

Thus, the current challenge for diversity efforts is not the struggle to find more trailblazers, but to break the trailblazing mold and embrace the value that the sum of our average diverse parts will always be greater than any individual trailblazer, minority or otherwise.

Closing Argument: The nature of the beast

By Todd A. Smith

For virtually all of my career the civil justice system has been under attack. The ultimate goal is to diminish and even eliminate the jury decision. This is desired so that the responsibility for wrongdoing can be controlled. And not controlled by judges and juries, but by those who are regularly on the wrongdoer side of the equation.

Of course, this goes to the heart of our separation from England. We wanted nothing to do with a justice system controlled by the powerful. One of the things we wanted was to have independent decisions made by regular citizens. This is why the relentless attacks and the methods used are so troubling.

Attacks on civil justice rights, the independence of the judiciary, and the legal profession obtain quick acceptance among broader audiences simply by the use of buzzwords words and phrases that have been focus-grouped, strategized, and promoted through well-funded public relations efforts.

”Frivolous,” ”Judicial Hellhole,” ”lottery,” ”lawsuit abuse,” even ”trial lawyer,” with the appropriate sneer, have come to represent, for some, the civil justice system in America.

Of course, no one favors a ”frivolous” lawsuit. But billions have been spent to create the perception that most, if not all, lawsuits are frivolous. The most meritorious of cases, that virtually demand justice, seem not to escape the attacks and are clearly impacted.

Who is applying the pressure with seemingly limitless infusions of funds to think tanks, interest groups, and ”institutes”? At this point it is not so well-concealed. Behind misleading titles such as ”American Justice Partnership” (an amalgamation of industry front groups), the ”Illinois Civil Justice League” (the Illinois entry of similar groups), and the ”Institute for Legal Reform” (created and paid for by the U.S. Chamber of Commerce), lies a broad coalition of corporate interests, including the insurance industry, tobacco industry, pharmaceuticals, and more.

But, I suppose, one might say, ”How can you blame them?” If a corporation’s primary purpose is its bottom line, why shouldn’t it do all that it can to increase its revenue and limit its exposure to expense in this case, its responsibility for wrongdoing? It makes perfect economic sense. It’s in the nature of the beast.

And what they have discovered, along the way, is an added side benefit. Although the ultimate prize is the arbitrary cap on damages, the ”lawsuit abuse” campaign also affects elected officials, judges, and juries.

To become widely propagandized as a ”judicial hellhole” can’t feel good. Is it possible some judges are influenced by this effort? I suppose so. Judges are human after all. Perhaps that is what the proponents count on: that such insulting attacks on those who most deeply appreciate the importance of an objective judiciary will indeed bear fruit.

And, as to juries, you need to go no further than any courtroom during voir dire and listen as prospective jurors say there are too many frivolous lawsuits, or simply omit the word frivolous altogether. This suggests they may be inclined not to accept lawsuits, period. Regardless of merit. This is where the meritorious case is impacted. The well-funded campaign has jurors viewing with cynicism every case and their own civil justice rights.

Of course, the promise has always been that they are only after the meritless legal actions. Only the frivolous cases shall fall victim. But this proposition fails under the mildest scrutiny.

At the heart of the ”reforms,” again, are the arbitrary caps. A cap not on frivolous cases, but on meritorious cases, those most devastating to individuals and families. The contradiction is that such a damage limitation only becomes operative after a finding that one’s case has merit. And only after a determination by one’s fellow citizens that significant compensation is appropriate. Even the beast knows this, but it can’t avoid its very nature.

Another side benefit of the assault is the rediscovery of the lawyer as a convenient target in pursuit of the ultimate prize. Of course, lawyers have historically been useful targets, so there’s nothing new there. Here, however, it represents a false target. It is presented as a debate between corporations and trial lawyers.

Of course, this erroneous view is promoted. It’s much easier to vilify the lawyer shooting the messenger who stands to protect these constitutional rights - and make that the target, rather than to focus on the real parties in interest those harmed by the wrongdoer.

Even some objective political figures tend to initially lean toward this view, failing to appreciate that the ultimate losers to corporate power and overreach are not the lawyers, but those the lawyers represent regular citizens. All of us. It is our rights that are diminished and, in many instances, effectively eliminated.

Today, political candidates address the need for change, moving away from gridlock, and speak positively of compromise. Others speak of a candidate’s ability to reach across the aisle and come to agreement. Perhaps this has its place under certain circumstances. Here it represents a false premise. You don’t compromise basic rights. The right to a jury determination of the harm done and extent of it is described as inviolate. You don’t (and can’t constitutionally) ”reach across the aisle” and place an arbitrary legislative compromise on that which is to remain pure.

Still at the top: 2008 Chicago Lawyer’s eighth annual survey of Illinois’ largest law firms

At Sidley Austin’s annual meeting this past April, following tradition, the firm handed out clocks - nice, beautiful clocks - to 13 partners who had reached 25 years with the firm. With lawyers becoming free agents in the last couple of decades, partners and associates are moving between firms as frequently as baseball players shift from team to team. It perhaps is instructive that the largest of Chicago’s firms have a foundation in longevity.

The three gentlemen on the cover of this issue are the chairs of three of the four largest firms that have jostled back-and-forth at the top of the heap since Chicago Lawyer started running this survey — Kirkland & Ellis is now the largest, and has been since 2006; but in 2004 and 2005, Sidley Austin was on top; and before that, from 2001 to 2003, Mayer Brown was the largest firm in the state. During all those years, and for at least two decades, all three have been with the same firm, and have risen to the top. Dan K. Webb left the U.S. Attorney’s Office in 1985 to join Winston & Strawn, where he is now chairman of the firm; James D. Holzhauer, chairman of Mayer Brown, has been with his firm since 1988; and Thomas A. Cole, the chair of Sidley Austin’s executive committee, has been at Sidley his entire career, beginning in 1975.

This year’s survey shows, once again, modest growth among those 113 firms that participated — a little over 5 percent. Among the largest firms — the 37 firms with 100 and more lawyers — the growth was about 1.8 percent. Nineteen firms grew, 17 lost members, and one, Bollinger, Ruberry & Garvey, stayed the same.

Those firms with 100 or more lawyers in their Chicago offices with the largest percentage increase were Skadden, Arps, Slate, Meagher & Flom, which increased from 178 lawyers to 198, an 11 percent increase; Swanson, Martin & Bell grew from 91 to 100, a nearly 10 percent increase; and Vedder Price had 9 percent growth, from 199 to 217.

The firms with the greatest decrease were McGuireWoods, which fell from 149 to 131, a 12 percent drop; Sonnenschein Nath & Rosenthal, which lost 16 lawyers from last year’s total of 197, for an 8 percent loss; and DLA Piper, which dropped from 294 to 217, a little under 8 percent.

The top four firms grew this year: Kirkland & Ellis grew by 5 percent; Sidley Austin by 8 percent; Mayer Brown, with all the turmoil of last year, grew by 3 percent; and Winston & Strawn increased by 5 percent. Jenner & Block, the fifth-largest firm, lost six lawyers, from 386 to 380, about 1.5 percent.

The full survey, which lists the number of lawyers in Illinois and worldwide, is available for download and costs $20.00.

Taking the reins

By Maria Kantzavelos

While some lawyers will hit the links to blow off steam after a long day at the office, or they’ll turn a golf course outing into an opportunity to connect with clients, Yvonne C. Ocrant makes it her practice to saddle up for some quality time with a trusty companion.

A horse enthusiast since she was bitten by the ”horse-love bug” as a 7-year-old, when she first took to the back of a Thoroughbred, Ocrant, a transaction and litigation attorney, makes the commute after almost every workday from the Chicago office of Hinshaw & Culbertson, to a barn in Elgin.

There, the law firm partner leaves her briefcase behind and picks up her bridle.

”My opinion has always been, it’s cheaper than therapy,” Ocrant said recently from outside the stables where she had finished bathing 11-year-old Otis, one of her horses, and where four-year-old Sam, her other Thoroughbred chomped on hay.

”When work gets stressful or a case just wears me down, there’s nothing like coming out to the barn and petting your horse,” Ocrant said. ”Even if I don’t ride — just coming out here, smelling the horses, petting them, even if I’m cleaning something — just being here calms my nerves.

”Whether horses know it or not, they do that to us. They call it a ‘kind eye.’ You look at a horse’s eye — it’s a soothing sense.”

For Ocrant, an avid equestrian who competes in eventing, which includes the three disciplines of dressage, cross-country, and stadium jumping — horseback riding is an outlet like no other.

”People say, ‘Why don’t you just take up a sport or go running to burn off stress?’ If I have quiet time, I’m still running stresses through my head. I can’t let it go. Yoga and running — it just doesn’t clear my head,” Ocrant said. ”But when you’re on a 1,500-pound animal with a brain of its own, you’d better be focused on that horse. I can’t be thinking about work, and the stresses just naturally fall off because I’m focused on him.”

Ocrant’s time with her horses is not only a stress release. Nor is it her hobby, she said.

”A hobby to me is, you can do it one day and then decide not to do it — you put the tennis racket or the golf clubs back in the closet. You don’t have to feed it, it doesn’t need to be warmed-up, it never gets hurt, you can always replace it,” Ocrant said. ”With the horses, you have to dedicate your time, your money, your blood, your sweat to making it safe and fun for you and your horse.

”I know I get a little crazy about it, but it’s a passion.”

At 34, Ocrant has converted that passion into a unique law practice that has taken off in recent years, since she carved out her own niche in the area of equine law.

As Hinshaw’s only equine lawyer — and one of the few lawyers in Illinois who identify themselves as such — Ocrant’s clients include horse owners, breeders, boarding facilities, trainers, farriers, veterinarians, hooved-animal humane societies, non-profit therapeutic riding centers, and agricultural business insurance providers.

As a litigator of equine cases, she deals with such legal issues as personal injury, property damage, breach of contract, and fraud.

Her transaction work in the area includes drafting agreements for equine purchases, sales, and leases, as well as boarding contracts, and trainer commission agreements. She also creates equine activity liability releases and disclaimers for boarding and training facilities, trainers, and other entities associated with activities involving horses.

Ocrant — who also practices in the areas of employment law and title insurance law — joined Hinshaw in 1999, after graduating from DePaul University College of Law.

In 2001 she began to carve out her niche in equine law, which has grown into a lucrative area that makes up about 40 percent of her overall law practice, she said.

”Without it, I’d be looking for more employment-related work or title insurance work,” Ocrant said. ”It’s significant enough now that I would have a big void in my practice if I didn’t have it.

”The equine industry is a $9 billion industry. When you think about an attorney trying to find a niche, well, a $9 billion industry is a pretty good market,” Ocrant said. ”As it turns out, I’ve got enough business in Illinois, but I am licensed in Wisconsin and in the federal courts of Indiana.

”And with Hinshaw having 25 offices, I can represent clients crossing state lines anywhere. Illinois has plenty of equine work, but to have the flexibility to practice in other states is a selling point for me.”

Building momentum

Ocrant acknowledged that her idea to start a Chicago-based practice with horses as its focal point was met with some skepticism when she first mentioned it to her senior colleagues at the firm.

”They had no idea what it meant,” she said. ”They thought I was playing with horses again — that’s about all they understood.”

Nevertheless, Ocrant said, ”they respected the fact that I was trying to start something new. Whether it took off or not, that was my problem. But they were willing to give me a chance.”

Combining firms to create a new enterprise

By Olivia Clarke

A successful merger can often be like a successful marriage.

It takes understanding, compromise, teamwork, and a belief that this new partnership will work for the betterment of everyone involved. Some firms make it look easy, and others have faced challenges along the way.

In the last 10 years a number of Chicago firms have merged with firms from outside the Midwest, and with firms in their own backyards.

Lawyers from Reed Smith, DLA Piper, Drinker Biddle & Reath, and Locke Lord Bissell & Liddell participated in a roundtable discussion about firm growth and law firm mergers. They talked about such topics as, what type of lawyer works best in a large firm, and how firms deal with client conflicts when two firms merge.

Here is a portion of the roundtable discussion, and here is who participated in the discussion:

Jennifer Kenedy (pictured), an equity partner at Locke Lord Bissell & Liddell. She has been on the combined firm’s board of directors since Oct. 2, 2007, when Locke Liddell & Sapp, and Lord, Bissell & Brook merged. She has also co-chaired the combined firm’s integration committee since the same date.

Michael A. LoVallo, Chicago office managing partner at Reed Smith. He has been in that position for over a year, and that was preceded by five years as co-managing partner at Sachnoff & Weaver. Reed Smith and Sachnoff & Weaver’s combination date was March 1, 2007.

David Matteson, managing partner of Drinker Biddle & Reath. He was on the 2006 management committee at Gardner Carton & Douglas, and has been managing partner since Gardner Carton & Douglas and Drinker Biddle & Reath combined Jan. 1, 2007.

William A. Rudnick, managing partner of DLA Piper’s Chicago office. He’s been in that position since January 2008. DLA Piper’s most recent merger was in 2005, and it was a three-way merger among Piper Rudnick, DLA, and Gray Cary.

What are some of the challenges in having a large firm, and the challenges involved in merging in Chicago?

Matteson: The challenge is to get everyone informed and stay informed about what a much larger group is doing. It’s easier when you are smaller, fewer people to understand and get to know their practices, their clients. As the enterprise gets larger the challenge is to find ways to communicate better and get informed.

LoVallo: The challenge is also the opportunity. The upside is all in having people have access and knowledge to the information and the people in the firm. Communication is always an issue in a law firm. I think it takes more direct attention the larger the firm is and the more offices it has to really develop systems and programs and follow them, in terms of communication. But the upside is so much greater as well. Once people see the upsides they’re willing to invest and participate in those practice group meetings or partner meetings, because that’s now how they’re accessing the good information instead of just trying to get it by osmosis in the hallways.

Kenedy: I would say firm culture — trying to have a cohesive, consistent firm culture when you’ve got as many as 12 offices nationwide. I would identify that as a big challenge.

Rudnick: The biggest challenge is the business case upfront. You’ve got to have a vision that makes sense from a business perspective on a stand-alone basis, and then makes sense for the people who are a part of the firm as well. I think the biggest failing that a lot of mergers face is that there isn’t an overwhelming business case to be made at the beginning. And you have two problems that result from that.

One is, if you can’t make the business case to your colleagues, they don’t buy into it and they don’t go along. Second, if you don’t make a business case, the transaction itself, if not doomed, faces serious challenges going forward.

How do you deal with the client conflicts when you are growing and merging?

Rudnick: We’ve dealt with that issue in three different respects. The first issue is, you’ve got to do your homework upfront and figure out what the conflicts are and whether or not you can even go through with the transaction. In all our mergers, we’ve done that and that’s been at times a challenge and we’ve had to, on a couple occasions, say good-bye to some clients.

The second piece of it is, you’ve got to be very, very careful and track the information and develop systems that work, and strike a balance between missing potential conflicts or actual conflicts on one hand and gumming up the works on the other hand. You need a system that can actually identify issues and address them.

I know I said three, but I actually have four.

The third one is, the bigger you are the more important it is to make industry bets. For example, are you going to represent big pharma, or are you going to represent the generics, because you can’t do both.

The last piece has been something that has been known as the international piece — where the conflict rules are entirely different. What we think of as a conflict they don’t think of as conflicts there at all. It’s something we have to educate our overseas colleagues on, because it’s just not something they’ve had the sort of intuitive understanding that we’ve all developed in the practice in the U.S.

Matteson: In our combination we threw a lot of resources at the conflict issue earlier on in the process, and the conflicts are not just client conflicts, but potential business conflicts. As Bill indicated, we may need to find a new home for a certain practice in order to make room for a larger practice. Knowing what those issues are early in the process is very helpful.

Kenedy: We did that as well beforehand. We actually, I think, looked at every single major matter we had between the two firms and tried to identify any conflicts ahead of time and resolve those that we could, and the ones that we couldn’t, decide whether we would be able to go forward, given the conflict.

But it is also equally important after the merger that we take care of conflicts. We used to just have a conflicts system where you plug in your client and figure out if there is a conflict. Now we sort of have levels, almost like a triage, where we have the traditional conflict search; we have daily conflict memorandums that go out, so that if people are opening a file in Houston, we know in Chicago to look and see if one of our clients is on the list. We also have people sending out e-mails for emergency matters, and that is something I think from the sheer size of a firm it’s become necessary to make sure we didn’t miss any business conflicts, and we didn’t miss any ethical conflicts just by our sheer size.

Matteson: As those conflicts are identified, and there always are conflicts. You can’t put two vibrant firms together without finding them. It’s interesting to me to see how our combination partner handled it.

Did they tell us that by definition their client was going to be the continuing client and ours wasn’t? We learned that it was all about the dialogue in deciding through a consensus what the best result was for the combined firm, and that taught us a lot about how other conflicts or issues would be addressed.

Closing Argument: The economic side of the practice

By Tyrone C. Fahner
Mayer Brown

Today, whether you practice in a big firm or small firm or are a solo practitioner, the practice of law has changed and will continue to change dramatically. Almost all of the change tests the bond between lawyer and client and is driven by economics.

For example, economic forces make more difficult the recruitment, promotion, and retention of the very best associates and partners. Each law firm hiring cycle brings an announcement that starting salaries for brand-new associates have risen once again. This causes an upward spiral of salaries for each more senior associate class. The financial impact on firm partners is negative unless associate and partner rates are increased in a corresponding fashion.

It does not sit well with clients when law firms and legal publications trumpet the high level of associate salaries, which exceed those of judges of the federal court; and average profits-per-partner of a firm, which often exceed the compensation of a general counsel or many of the clients’ more highly paid managers. The sum of these circumstances does little to strengthen the bond between client and counsel.

On the other side of the equation, general counsels are under immense pressure to reduce the amount of company resources consumed by litigation and related legal expenses. As a result, our clients insist that we manage relationships with them as part of their business, and not simply as a cost of doing business that adversely impacts their bottom line.

The pressure to reduce fees has been felt for several years. The extent to which institutional clients are willing to part ways for discount fee arrangements, even at the expense of the deep knowledge lawyers hold of the company’s business and place within an industry, is relatively new. Many general counsels are seeking to practice law in a new way, altering the traditional relationship between company and counsel. They are looking for firms that will embrace an approach of legal service delivery in a partnership focused on business objectives as well as legal objectives. The success of such an approach depends on law firms and counsel who understand the idea of operating as a single integrated team with in-house counsel.

While most of us like to believe that we are indispensable to the success of our clients, and in some cases we are, in-house counsel will frequently point out that the profession abounds with great lawyers who have successfully tried complex bet-the-farm cases to judges and juries.

In their eyes, the same is true for firms and lawyers who have managed multibillion-dollar mergers and financings.

So, the issue becomes how to distinguish yourself and your firm from any other good law firm. How do you achieve being viewed as a colleague, as part of a team, as a problem-solver, as opposed to a necessary but unwanted expense?

To earn or retain a client you must make clear to them that you fully understand both the business and the place of the company within its given industry.

You must demonstrate the skill to give them necessary representation at the least expense. They will want your best attorneys and transparent and appropriate levels of staffing.

Clients will no longer pay for the training of a firm’s associates (as in second-chairing a deposition or observing and taking notes at a court hearing). Clients will not pay associate rates for paralegal work; and they will not pay paralegal rates if the work may be outsourced. This structure is becoming the norm in big cases requiring extensive discovery and production of electronic and hard copy materials.

Simply put, most clients of any size or business want matters handled as quickly and as well as possible for as little cost as possible. An inability to fulfill this expectation puts important and long-standing profitable client relationships at risk.

One of the ways in which general counsels achieve reduction in their overall legal budget is through convergence of their legal services. This means that companies who may have as many as 40 law firms working for them nationally or worldwide will put out a Request for Proposal to each law firm with the stated intention of reducing the number of law firms in use and the total spend for outside legal services.

The law firms then compete with each other in terms of rates, the provision of free legal education for in-house lawyers, arranging alternative fees, instituting success fees, sharing risks, and similar arrangements. It has become the norm for clients to ask for a detailed analysis of costs, a monthly or quarterly budget, and an explanation when the budget for a project is over or under estimates. Clients do not like surprises, and so, predictability is almost as important as cost.

All of this points to the fact that lawyers and law firms, whether large or small, must sell more than their legal skills as productive partners to financially awake clients. We must be creative and resourceful to obtain and keep clients. The challenge will be to get the right economic balance in the relationship between lawyer and client.

Electronic Discovery Survey of Illinois Attorneys Shows a Few Surprises

by Tom O’Connor

Overview

The Law Bulletin Publishing Company recently conducted a survey of Illinois attorneys regarding their experience with electronic discovery. 240 lawyers responded to the survey that asked 17 questions about their level of exposure to eDiscovery matters, experiences with electronic discovery vendors, and products. The final question asked for their thoughts on the most important issues facing them in this ever-increasing area of practice.

Who’s Who?

The respondents to the survey represented a good cross-section of practitioners, with 35% practicing in firms of between two and twenty attorneys, 25% in firms with over 100 attorneys and 22% being solo practitioners. The remainder was spread between firms of 20-50 (12%) and 50-100 (6%).

The respondents themselves were primarily partners (59%) with 20% being associates, 15% in-house counsel.

Perhaps the biggest surprise occurred almost immediately in the question which asked “Are you familiar with the Federal Rules changes regarding electronic discovery?” 70% answered “Yes” which means that 30% were not familiar with the rule changes. The figure seems almost astonishing given the high degree of coverage and the flurry of CLE activity surrounding changes that went into effect in December of 2006.

Sources of eDiscovery Trends

Not so surprising was the fact that 45% of the respondents said that their main source of information on electronic discovery was print media. Next closest was Web sites at 35% followed by e-mail feeds at 20% and conferences at 22%. Consultants received a 12% figure while the percentages who answered either “colleagues” or “case law” were even at 5% and specific CLE sessions were at 2%. What struck me about these figures was that traditional methods of gaining legal knowledge (print media, reading cases or statutes and discussing issues with other attorneys) were approximately 60% while newer types of electronic sources such as Websites and RSS feeds were approximately 40%, indicating that these non-traditional methods of electronic delivery of information directly to the desktop are a significant factor in how attorneys are educating themselves.

How Much Is That Case Worth?

When asked specifically about matters involving e-discovery, 68% answered that they had handled such a case. 30% of those had a matter valued over $5 million with the others ranging from $5 million to less than $100,000. 21% had handled multiple matters with case values ranging high and low, indicating that eDiscovery cases are not just restricted to high-dollar cases. The vast majority expected their eDiscovery caseload to either increase (58%) or remain stable (33%) in 2008.

Consultant or No Consultant

The question, “Have you ever hired an electronic discovery consultant or firm?” provided the biggest surprise of the survey for me. 69% of the respondents indicated that they had not hired an eDiscovery consultant or firm. Those who did hire such a company preferred Kroll (25%) Lexis-Nexis Applied Discovery (20%), Fios (18.5), FYI (18% ) and EED (15%) All other companies listed (KPMG, Encore, Stratify, Attenex and Navigant) came in at single digit percentages.

Upon examination, the breakdown is perhaps not so surprising. The respondents answering “yes” to the consultant question were the large firm attorneys with high value cases. The respondents answering “No” were predominately sole-practitioners and small firms. The fact that these are respondents performing a high percentage of their eDiscovery work in-house is a theory perhaps born out by the fact that the two most popular products listed as a response our question about products are Summation at 64% and Concordance at 47% . Both products are more easily used by smaller firms to perform their own eDiscovery processing, especially on email files. And in fact, after those two products, no other company had higher than a 10% response except for EnCase, which is typically used for forensic-level analysis of servers and workstations.

Software of Choice

Interestingly, the attorneys who answered about their experience with the software they used, confirmed my experiences working with various firms around the country: the vast majority of attorneys are either ambivalent towards, or unhappy with the software they are employing. In this case, 2/3 of the respondents declined to rate their software of choice at all but of those who did (and 25% of the respondents admitted that they didn’t actually use it themselves, but left that task to a staff member: not surprising in a survey with such a high number of partners responding), 42% found their choice “satisfactory” or “ok”. An equal number (13%) were either very happy or very dissatisfied.
The most common complaint? “Poor interface” at 9%. And the product most often mentioned by name as the best? Neither Summation nor Concordance. IPro was the stand-out, whose users were enthusiastic about IPro’s ease of use.

On the Web

Another surprise for me was the high number of respondents who had used a Web-based application to host their eDiscovery documents. Given the number of small firms and solos represented, I expected this number to be relatively low, yet 66% answered in the affirmative. The most often mentioned products here were iConnect (25%) and Lextranet (17%) with FYI (10%), CaseCentral (10%), Catalyst (8%) and CaseLogistix (5%) rounding out the leaders with Kroll, OnTrack, EED and Applied Discovery all getting one mention. 8% couldn’t tell and 5% were using a custom application. Most curious statistics in this category? 12% of the respondents said they DIDN’T KNOW what Web application they were using!

Most Important Issues Regarding eDiscovery

Not surprisingly, the one eDiscovery issue that the majority of respondents felt was most important was cost. But it was not a dominant response at only 20%. The remainder of the responses were very closely bunched with education on the eDiscovery issues at 12% followed by tactical usage (8%) and then project management, authentication and “I have no idea” all at 7%, the last clearly reinforcing the education answer. Smaller numbers, but nearly identical figures (at 3-5%), came in for communications with client, high volume of data, judicial education, metadata and compliance.

Conclusion

So what general trends can we take away from these results? Clearly, eDiscovery is cutting across all the legal demographics of firm size, case values and attorneys but a significant number of lawyers are still unfamiliar with the requirements and characteristics of electronic discovery. No single vendor is dominating the market in Illinois and national vendors are clearly splitting the business with local shops. Although well known products such as Summation and Concordance have a high market presence they are being pushed by the rise of Web based applications and, although cost conscious, attorneys are rating both vendors and products on a number of other factors besides price.

All of which means that the eDiscovery market is still growing and I look forward eagerly to seeing what this survey tells us a year from now.

About the Author: Tom O’Connor is the Director of the Legal Electronic Documents Institute. Tom is a nationally-known consultant, speaker and writer in the area of computerized litigation support systems. Tom’s involvement with large cases led him to become familiar with dozens of software applications for litigation support and he has both designed databases and trained legal staffs in their use of eDiscovery tools. Tom is the author of The Automated Law Firm, a guide to computer systems and software published by Aspen Law & Business, now in its fourth edition and The Lawyers Guide to Summation, published by the ABA.

The IP world: A place for firms of all sizes

By Olivia Clarke

After working as a summer associate at both an intellectual property boutique firm and a general practice firm, Sandra Frantzen needed to pick which world to work in.

With a law degree and bachelor’s degrees in chemistry and environmental studies, she discovered that she liked how specialized an IP boutique firm could be. The lawyers, who often possess technical or science backgrounds, can delve into specific intellectual property issues as opposed to skimming the surface, she said.

”At a boutique you really have an opportunity to understand the technology, and to be intimately familiar with it. And personally, it gives a lot of value to the client,” said Frantzen, a shareholder at McAndrews, Held & Malloy, an IP boutique firm. ”When [handling] technology, a superficial understanding of that technology really isn’t good enough.”

Like Frantzen, many lawyers opt to combine their science degrees with their law degrees and practice at IP boutique firms.

Many Chicago IP boutique firms opened in the ’80s and ’90s, during a time when clients wanted lawyers who could understand the technical side of their businesses. They usually couldn’t get this IP help at general practice firms.

Today many general practice firms see the value in having their own IP practices, and often employ lawyers with experience similar to those at IP boutique firms. Some boutique firms cannot withstand the competition and close their doors, while others remain very successful because they’ve created a niche for themselves in the legal market. These boutiques have become the David to the large firm’s Goliath and are successfully competing for IP business.

”General practice firms, in the past 10 years, have really improved the technical people at their firms,” Frantzen said. ”You might have a very large firm, 600 lawyers, and an IP department of 30 people. When you have a boutique, you really have a lot more lawyers that have the knowledge and experience to help you with all your issues.”

Changing times

The IP boutique firm model is from a time when the patent practice was viewed as a very distinct, very specialized realm, said Richard Gruner, director of the Center for Intellectual Property Law at The John Marshall Law School.

It made sense for firms to be organized around a patent practice, Gruner said. But interest in intellectual property has grown.

The patent area now intersects with other areas of business, and the broader legal world now pays closer attention to IP, he said.

Many large firms are now concerned when a piece of their clients’ affairs goes to another law firm, Gruner said. A large firm may merge with an IP boutique firm to keep its clients’ matters under one roof, and so it can integrate the firm’s business advice with its IP advice more effectively, he said.

But, he said, he believes there will always be room for IP boutique firms. Smaller- and medium-size businesses that don’t have broad legal needs, but need patent advice, will want to stay with these firms.

Successful IP firms must provide the full-spectrum of patent needs, and handle such areas as patent prosecution, patent licensing and patent enforcement, Gruner said.

Patent prosecution involves the drafting of patent applications, and the shepherding of those applications through the United States Patent and Trademark Office’s patent application process.

”It’s a tradeoff between having a narrow specialization versus the importance of those other non-patent skills,” he said. ”One can make a case that one or the other is more important.”

Robert Half Legal reported in its February survey that intellectual property ranked fourth in terms of practice areas that will experience the most growth in the next year.

Division Director Billie Watkins said there’s always a demand for lawyers with technical backgrounds in such areas as engineering and computer science, and especially in firms specializing in patent practices.

”I do see that there has been an expansion in terms of mid-to-large firms expanding their IP practices,” Watkins said.

IP boutique firms have had a wonderful run because IP has been hot for a long time, but the market has changed dramatically, said Joel Henning, senior vice president and head of Hildebrandt International’s Chicago office.

Many IP boutiques relied on patent prosecution for profitability, and that could be a problem in today’s market, Henning said.

”Some general practice firms are getting out of patent prosecution all together,” he said. ”It is one of the areas of the law that is beginning, and I stress only beginning, to be outsourced overseas to India.”

A corporation’s general counsel may outsource the company’s patent prosecution, or the outside law firm may use offshore outsourcing, Henning said.

These individuals from India speak good English, are well-trained in both the law and in a science or technical area, and have the overall skills to handle patent prosecution.

Their work may then be reviewed for quality and consistency by either the corporation’s inside counsel or by the outside firm.

”IP litigation remains very hot but because it’s so hot, the good general practice firms with high-end litigators have been very, very savvy about competing with the IP boutique for the most profitable IP litigation,” Henning said, ”and they are increasingly successful at it.”

Many IP boutiques have been pretty complacent about their success in the marketplace so they’ve been slow to react, he said. As a result, they’ve lost clients and lawyers, and some have closed up shop.

”I would say, for IP boutiques that are managed in a very strategic way, they can survive and prosper,” Henning said. ”But I don’t see many of them doing that.”

Roper & Quigg opened in 1990 to exclusively handle patent litigation. The IP boutique firm found success, but the cases were getting bigger and bigger.

It needed to bring in outside help more often to handle these cases, said then-name partner Harry Roper.

The firm decided to join Jenner & Block in 2004, and Roper is partner and chair of Jenner & Block’s IP practice. He said he likes that larger firms have more resources, and a wider diversity of lawyers with a variety of expertise.

”Over the past five years, we’ve seen more and more boutiques indeed merge with larger firms,” Roper said. ”But on the other hand some of the boutiques have still been very successful, and still remain quite strong.

”I think you are going to see fewer boutiques, but the ones left standing are still going to be very strong, well-positioned firms.”

Adapting to the legal market

A strong IP boutique firm should offer patent prosecution, Roper said.

Smaller clients do not always have in-house patent prosecution capabilities, and many large firms do not focus on this area, he said.

”I think a lot of the smaller clients that have very, very limited inside resources may find themselves in a situation where they need a full range of IP lawyer expertise, particularly in patents,” he said. ”If they don’t have any in-house patent people, small clients like to use one firm to do that. I think boutiques will be attractive to those kinds of clients.”

Niro, Scavone, Haller & Niro started in 1976, during a time when big firms did not consider IP to be a premier field, said Raymond P. Niro, a founder and senior partner.

But Niro said interest in patents grew with the creation in 1982 of the U.S. Court of Appeals for the Federal Circuit — a merger of the U.S. Court of Customs and Patent Appeals and the appellate division of the U.S. Court of Claims.

This change piqued law firms’ interest in patents, in part, because significant dollar judgments soon followed, he said.

Citing The National Law Journal, he said IP litigation today amounts to the largest dollar value of all verdicts — ahead of contract, products liability, fraud, and medical malpractice litigation.

Patent infringement lawsuits cost, on average, between $3 million and $8 million in fees, he said, citing the American Intellectual Property Law Association’s Economic Survey 2007.

”Because it became a hot area, it attracted the big firms,” Niro said. ”That changed everything significantly. It created a level of incivility.

”It used to be a sort of club where everybody knew everybody. It became more of a business-intense environment instead of a collegial environment with patent lawyers working together. It also brought people who purported to be IP lawyers but had no technical training.”

Some boutique and general practice firms have found a way to work together. Large firms often recommend Davis McGrath when conflicts prevent them from handling the matter themselves, said Bill McGrath, name partner and associate director of John Marshall’s Center for Intellectual Property Law.

Davis McGrath, a 12-lawyer IP boutique firm that started in 1990, may work with a larger firm when the boutique has a particular expertise that the larger firm doesn’t have.

”They feel comfortable sending the matter to us,” McGrath said. ”We aren’t going to walk away with the client, but we are providing excellent services.”

His firm has grown and become more sophisticated in terms of the type of clients it handles, but it wants to maintain a small-firm atmosphere, he said.

”I don’t want it to sound like partners at big firms don’t pay attention to their clients, but in some ways, with a smaller firm, more senior partners are probably more accessible than they might be at a larger firm,” McGrath said.

IP boutique firms enjoyed decades of success, but they must now change the way they do business because the clients’ needs have also changed, said John Mortimer, managing partner of Wood Phillips, a 16-lawyer IP boutique firm founded in 1876.

”I think, more than ever, our assistance is required to allow them to make good decisions on their IP portfolios,” Mortimer said. ”Our objective is to make sure every dollar achieves its maximum value.”

”Thirty years ago, a lot of companies were concerned about building patent portfolios without being as critical to what they were patenting. That was at a time when they didn’t have to pay maintenance fees to maintain patents,” he said. ”Now there is a need to bring out their portfolios and get rid of assets that are not of value or not going to bring value, and spend the money in areas where the future is more in focus.”

He said he’s confident that his firm will always offer a service that is in demand, but it must be offered properly. IP boutique firms must be flexible to their clients’ needs.

General practice firms face some challenges in entering the IP legal market, Mortimer said.

”The patent practice is not something that meshes perfectly with the general practice in the larger firms,” he said. ”There are differences and they have to be accommodated for, and that is often difficult in a large-firm environment.”

When McAndrews, Held & Malloy started in 1988, IP boutique firms were much smaller, said George McAndrews, a founder and chairman of the board. His firm began with six lawyers and today has 90. It adds between four and six lawyers each year.

”As the corporations got larger and we entered into national and global economies, the ability of the boutique firm to keep pace required many of them to expand to what I now call ‘mega boutiques,”’ he said.

The use of juries in IP litigation exploded in about 1983, which created a greater demand for technically trained lawyers who can translate the language of an inventor into information a judge or jury would understand, he said.

Today his firm searches for people who are not only at the top of their law class, but also at the top of their engineering or science classes, he said.

”Many technically trained people become immersed in jargon that reflects their technical competency,” McAndrews said. ”Lawyers, though, are communicators to people with minimal technical competency, and that requires an art form that isn’t present with merely technical people or non-technically trained lawyers.

”The boutique firms recognize this and their success or lack there of revolves around how well they can get this community of like-minded and like-trained men and women together to accomplish the common purpose of being advocates for their clients.”

Creating a niche

Niro, Scavone, Haller & Niro, an IP boutique firm with 32 lawyers, has carved out a niche for itself in the legal market.

About 80 to 90 percent of its patent litigation is handled on a contingent-fee basis, Niro said. The firm realized there was a need for good lawyers to represent good people who cannot afford the legal process.

”That has opened up an opportunity to take cases that some of the big firms would not,” Niro said. ”The contingent fee aligns the interests of the lawyers and the client. If you are successful for a client you get paid, if you aren’t, you don’t.”

The firm tries to select cases very carefully, and receives more cases than it can accept, he said. It retains scientists and engineers who assist the firm in evaluating cases.

IP boutique firms can succeed in today’s legal market with a successfully executed business model that offers value to its clients.

”I like the idea that we can define our own path,” he said. ”We have a focused area. We know and have the experience in doing this kind of work and we don’t go outside of it. It allows us the opportunity to focus on an area of the law and not have to worry about trends or directions and incompatible areas.”

There will always be clients who decide to work with a firm that has the expertise, as opposed to a firm that is a one-stop shop, said Robert Gerstein, a partner and a member of the executive committee at Marshall, Gerstein & Borun, an 80-lawyer IP boutique firm that was founded in 1955.

”In whatever area you are working in, you have to have a deep expertise,” he said. ”If you are going to do biotechnology work, it is not enough that you have some people with some chemical background. You need to have people who are really knowledgeable in that area.”

Boutique firms must communicate to clients and potential clients the importance of hiring lawyers who work with their specific problems, specific business or specific technology on a daily basis, Gerstein said.

He said his firm looks for lawyers in the patent area, in particular, who ”have a passion for learning new technology. And another thing we find that is extremely important for everyone is the ability to write well. What we do day in and day out is provide written work product for our clients.”

IP boutique firms need to be careful that they don’t put all their eggs in one basket, said Grantland Drutchas, a founder and managing partner of McDonnell Boehnen Hulbert & Berghoff, a 75-lawyer firm founded in 1996.

Those IP boutique firms that ditched patent prosecution for litigation find that those models do not work, Drutchas said. And larger firms are swallowing up those boutique firms that banked entirely on litigation as their primary moneymaker.

His firm maintains a balance of litigation and patent prosecution, he said.

And with an almost exclusive focus on high-tech industries, including biotechnology and pharmaceuticals, telecommunications, computing and software, business methods, and information-age trademarks, the firm says its weathered the rise and fall of the economy by staying focused on the cutting-edge industries that drive production.

”We have a pretty diverse practice, especially for the Midwest,” Drutchas said. ”We end up having a pretty extensive pool of candidates for lawyers. There are a lot of people who grew up in the Midwest, who went out and got PhDs, and are looking to come back to the Midwest. But there really are not a lot of firms that provide really high-caliber work for them.”

Drutchas said some general practice firms view their patent or IP group as a service group for the firm’s overall clients. Those lawyers aren’t expected to independently bring in their own clients, which can create a glass ceiling for them.

”When I started in law, which was in 1985, patent lawyers were really kind of looked at or referred to as the plumbers of the legal profession,” he said. ”It was considered unduly technical. Even the litigation surrounding patents, most general practice firms didn’t want to touch it.”

Today, general practice firms, he said, ‘’see it as one of the last bastions of bet-your-company litigation. When a company is risking losing an entire product line when accused of infringement, they are willing to spend a great deal of money. The general practice firms have seen this as a large potential revenue maker.”

A Trial Run

By Jerry Crimmins

”Ladies and gentlemen, we are here today because of the injury that Robert Parker inflicted on my client, Mary Wallace.”

The plaintiff’s lawyer, Carol P. Woosley, looks angry, sometimes fierce, as she delivers her brief, opening statement. She walks up and down and makes vivid gestures. Woosley (pictured above, center), of Bruce, Farrel, Dorn & Associates, doesn’t know, but the jurors are difficult. It is going to be a bad day for plaintiffs at DePaul University College of Law’s Litigation Lab.

”My client is married, a normal housewife with children who enjoys playing racquetball every week with other retired people at a park facility near her house in the Chicago suburbs. My client has been doing this for two years,” Woosley says.

With assurances of confidentiality, Woosley has taken the opportunity to present three personal injury cases to a mock jury of DePaul law students. She seeks their reactions, their opinions, their comments on the evidence, and even their suggestions.

This service costs Woosley $350 for two hours of the law students’ live time. The students also had agreed to read in advance the documentation she supplied on each case. That way, their comments would be based on evidence and legal issues far beyond what she might present in her brief, opening argument.

As part of the promise of confidentiality, the teacher, attorney Michael R. Panter, says the students must all go through conflict checks before they hear any case to try to assure that none is connected to the opposing parties or their counsel.

(For this story, the names and facts in the cases have been changed.)

”On the date in question, my client went to the park facility to play racquetball, and people paired off into teams,” Woosley continues.

”That day, my client hooked up to play as partners with Robert Parker.

”Robert was more competitive. He was there to win, and that’s what he was going to do. Mrs. Wallace and the two people on the other side were having fun.”

The law students listen with the deadpan expressions typical of jurors.

Two of the students wear baseball caps indoors. Most are dressed in pullovers, sweaters or sweatshirts.

Only one, a young woman, wears business attire and pearls.

”The ball comes back, and it’s out of my client’s range,” Woosley continues. ”Mr. Parker hits her right in her eye with his racquet. He hits her so hard she almost lost the sight of her eye.

”She has to undergo lengthy medical treatment. Her medical bills are over $30,000.

”I ask for a verdict in favor of my client and against Mr. Parker for what he did in striking my client so hard she almost lost the sight of her eye.”

The ”defense counsel” then speaks. He is really the 13th student, Fernando Gutierrez, and not yet a lawyer.

”Mrs. Wallace and Mr. Parker played together for several months,” Gutierrez tells the students. He explains that the players’ manner of dividing the court was long settled.

”Mr. Parker always wore sports goggles. The plaintiff just wore prescription glasses, no goggles,” Gutierrez adds.

”Mr. Parker made contact with her with a backhand swing while he was in his part of the court. He struck Mrs. Wallace with the side of his racquet.

”He did exhibit ordinary care. He was in his part of the court. When he began his swing, she was 8 to 10 feet away. …

”She should expect that Mr. Parker would hit the ball since she could not. She was well aware of his style of play. …

”I would hope the jury finds for the defendant, therefore, with all the facts to be considered in this case.”

When the student jurors are asked to give their opinions, one comment stands out.

”If I was on the jury,” states Cortney Closey, ”I would be pissed off I had to take a day off work to hear this case, and I vote for the defendant.”

Only two of the 12 student jurors say they would find in favor of the plaintiff, and even those two would give the defendant only 40 to 50 percent of what she sought.

Woosley doesn’t mind. She and her law firm are really insurance defense counsel. She had decided to argue the other side’s case.

Her venue, Litigation Lab, is a new course this semester at DePaul. It is the brainchild of Panter, a career Chicago plaintiff’s attorney.

One trial consultant said Panter’s course is perhaps a first for any American law school.

Panter invites trial lawyers to present their pending cases to one of his two classes of law students to help the lawyers work out whatever problem the lawyers choose.

By the time this article was reported, Panter said 20 lawyers had presented their cases to one of his Litigation Lab classes, 15 plaintiff lawyers and four defense lawyers, and one other.

The cases included medical malpractice including severe birth injuries, a railroad injury, motor vehicle accidents, tort cases involving municipalities, a product liability case, a dispute over a government contract, various damage cases involving homeowners’ insurance, and two cases in which patients were allegedly abused.

In one of those abuse cases, the patient was allegedly harmed by a residential care home, and in another, by a doctor ”who allegedly breached patient boundaries,” according to Panter.

In one instance, a lawyer brought his clients to talk to a class to seek reactions. ”It was extremely emotional,” Panter said.

In another class, the only question was whether the lawyer should accept an offer from one of the defendants or continue against two defendants. Cases involve questions of procedure, jury instructions, and substantive law.

Because the students may research the cases, ‘’students have looked up and found amazing information for the lawyers,” according to Panter. ”Really, few lawyers can compete with the students as far as finding stuff in the computer.”

On the day that a reporter attends, the law students’ comments and suggestions are a mixture of what could be expected of ordinary, student-age jurors, plus comments displaying the extra knowledge that would be expected of third-year law students.

Panter goes around the table to ask each student his or her opinion.

”Sports are inherently dangerous,” argues student Mike Silverman after hearing the racquetball case. ”It’s not apparent the defendant broke any rule of conduct. When playing sports, you have to break the rules in order to find any level of negligence. There is none here.”

”She (the plaintiff) put herself at risk for the fun of sports,” another student, Bill Rock, asserts. ”It’s not his fault he was playing to win. She didn’t wear goggles.”

Lindsey Wills, the young lady in business attire and pearls, says, ”If you play with racquets, you’ve got to expect to get hit.”

After similar remarks from the student-jurors, student Ryan Smith is called on.

”I say plaintiff this time!”

”Whoa” and ”Ohhhhh” his fellow students exclaim all together.

”Stand up,” Panter commands. ”Talk to the jury.”

Smith rises. ”I play racquetball,”he says. ”If the ball’s coming and, hey, somebody’s right here, you don’t swing.

”You owe a person the obligation not to hit somebody in the head.

”Your duty is not to hit somebody in the head.”

Attorney Woosley gets drawn into this rapid-fire conversation and says when she used to play racquetball, she used to get hit.

At this point, trial consultant Patricia McEvoy of Zagnoli, McEvoy, Foley LLC in Chicago, who often gives advice in Litigation Lab, offers two observations about a potential trial:

”People who don’t play sports are not going to understand. You guys are all talking from a very competitive point of view. There are going to be people on the jury who don’t have that experience.”

Also, McEvoy says, the lawyers need a diagram for the trial to show the players’ positions on the court, and, for the defense lawyer, to show that the plaintiff is out of the defendant’s field of vision.

To sum up, Panter asks, ”Do you give anything to the defendant?” Out of 12 jurors, only Smith and Kyle Armstrong next to him agree to give the defendant more than 1 percent of what she sought. They would give her only 40 to 50 percent.

Having none of that, student Brian Molloy, asserts, ”I would sanction the attorney who brought it (the lawsuit).”

Woosley commented later she ”found it worthwhile to get the input of other people, especially young, fresh people who have some knowledge of the law but are not yet mired in taking one side or the other.”

In Litigation Lab, she said, ”You get a fresh look at your case, and you might find a little gold nugget that you overlooked.”

An extra benefit to the lawyers who make the presentations, Woosley said, is that they get Mandatory Continuing Legal Education credit for participating.

”I would much rather obtain the (CLE) hours working on my cases,” Woosley noted, ”than attending a lecture on something I either know or have no need to know.”

A discussion of plastic Solo cups is an example of the original points of view the students might offer. This occurs when defense lawyer Woosley presents another of her personal injury cases from the plaintiff’s side.

The subject is a large, backyard party with beer in southern Wisconsin attended by 18- to 20-year olds — at least one of whom had a reputation for violence. At the party, several young men were shot and wounded.

The defendant homeowner contends that he was indoors, and he did not know the young people in the backyard, including his nephew, were drinking beer.

Gutierrez, still playing defense lawyer, argues that the event was ”not a type of circus as the plaintiff contends. It was a mere party that was turned into a scene of horror” by young men who were not invited.

”This was ‘appallingly unexpected,’ Gutierrez argues. The defendants he says were not responsible.

When asked, the students are overwhelmingly for the defense in this case, too.

But then Panter asks them to argue the opposite side, for the plaintiff.

The students instantly switch and argue against their own opinions.

”Violence is obviously forseeable,” argues student Jeff Bloom, ”when you have 18 year olds, alcohol, one with a history of violence.”

Three students argue that the red Solo cups in use at the party were the dead giveaway to the homeowner that the party goers were drinking beer.

”You can’t hide the cups,” says Phil Kunz.

”Guys might pee in the bushes, but the girls will come in the house” to urinate, points out Kyle Armstrong.

Partiers going in and out of the house carrying red Solo cups seems to mean to the students the homeowner knew the party goers were drinking beer.

”There are 20 kids, a keg of beer, a supply of Solo cups.” states Bill Rock. Add to that one young man with a ”history of violence.” ”I think that defines negligence.”

The students have argued against their real opinions only because Panter asked them to.

In reality, the only person at the table who seem to sympathize to any degree with the defendants is McEvoy, the trial consultant.

”I disagree with everybody,” McEvoy says. ”I expect the property owners to have some control over the property.”

Panter advises the defendant to give a little. ”I say admit bad judgment,” he argues. ”Demonize” the fellow with the gun. ”Pay the med pay,” he adds.

”Med pay,” he explains later, is a provision of homeowners’ insurance and automobile insurance, which will pay medical expenses incurred up to the the limit of the coverage. He says it is ”unrelated to fault.”

In its inaugural semester, DePaul has offered Litigation Lab in two sections of 12 students each. Each section is fully enrolled.

Panter said he has also added four additional, two-hour class sessions to allow more lawyers to come in and present their cases.

He recently prepared a blue and red flyer to attract more students.

”Litigation Lab announces 4 additional sessions. … Come and see what all the BUZZ is about! Meet and help great lawyers with active cases! 2Ls who do a session will get a preference in signing up for Litigation Lab next fall!”

Panter likes exclamation points. Nevertheless, it is noteworthy that 30 more students signed up to take part in those for extra sessions — for no credit (exclamation point).

The cases that remained to be heard in the spring semester, according to Panter, included one involving whether an insurance company is liable for a large loss — which Panter won’t describe further — with many millions of dollars at stake; also ”a divorce case, a probate case, a patent case, a defense auto, a med mal defense, and 4 plaintiff cases.”

Still to come also was a session with a doctor who frequently delivers medical testimony who will try to show ”proper cross and direct examination techniques” for medical testimony.

”This is going to be a real treat for these students,” according to Panter, ”because they wouldn’t normally ever get an opportunity to work so closely and so candidly with a top physician like this. He has never done anything like this with law students before.”

Attorney George T. Brugess of Hoey & Farina who appeared before one of the Litigation Lab classes this semester commented afterward:

”The litigation lab program is truly visionary. It is unlike anything we had in law school. The lab not only gives me the chance for feedback on an important case, it shows…students why lawyers practice in firms, to discuss the best way of handling a file. The dynamics of group discussion never fails to give birth to new ideas and novel ways to approach a case. The group discussion certainly did in this case.”

Woosley said, ”I absolutely recommend it. … Some of the students picked up on points that I did not think were particularly strong or meaningful and used them to weave a different take on the case than I had.”

Inevitably, the students have suggestions for improvement.

”Fewer PI (personal injury) cases. More time with the lawyers,” suggested student Ian Wolfe after the first five weeks.

”If we could get more clients in, that would be great,” said student Joni Holder.

”Great transition course from law school to real world,” stated a student in an anonymous evaluation form.

”It’s honestly the best class I have taken in law school,” said another anonmyous student in an evaluation form. ”This class is preparing the students to be lawyers, not just how to act like one or read cases.”

On the day that a reporter attends the class, Woosley argues her third case on behalf of a plaintiff who was injured while he and his neighbor were painting the house owned by the plaintiff’s neighbor.

The ladder, several years old, owned by the neighbor, broke. The plaintiff hurt his leg and had many thousands of dollars in medical bills, she said.

Both the plaintiff and the neighbor weighed more than the ladder’s advertised capacity. In fact, of course, the defendant is Woosley’s client.

Out of the 12 students on the jury, Kyle Armstrong is the only one to find for the plaintiff.

”The defendant gave the plaintiff a ladder. The ladder says 200 pounds maximum. … When he gets on the ladder, it’s not his ladder. He’s helping his neighbor out. You’ve got to see some negligence” on the part of the neighbor-defendant,” Armstrong says.

The neighbor ”knows what this (ladder) can hold. Our plaintiff doesn’t know. You have to play something.”

Other students are not impressed since the defendant also used the ladder.

Near the end of the class, Panter asks the students to offer Woosley several ‘’sayings, slogans, themes” that would apply to all three cases and that a defense lawyer such as Woosley can use.

This exercise is for the students, of course.

”No knowledge means no liability,” says Lesley Melega. ”Unintended accidents aren’t intended to create liability.”

”Accidents happen. People make mistakes,” says Joni Holder.

”Show how a verdict for the plaintiff would hurt the jury or society,” offers Cortney Closey.

Brian Molloy says, ”A finding for liability opens up every single, everyday accident for a future lawsuit.”

Climbing the Ladder: It’s a growing process

By Marina Santini
Reed Smith

During the first years of practice, advice on how to become a successful member of your firm (and of the profession) comes at you fast and furious.

Everyone has a lesson, a tip, a war story. Figuring out how to weed through all that advice to arrive at a formula that works for us individually becomes a challenge in and of itself. As one of the partners at my firm likes to put it, ”You don’t even know what you don’t know.”

I won’t bore you with every detail of every time this has turned out to be true — suffice it to say that, at least at the beginning of your career, it will turn out to be true about practically every assignment.

Halfway into my first week at work, I got my first assignment. At some point during my second or third year of law school, I decided that I wanted to be a securities litigator. When my first assignment was to work on an appellate brief in a 15-year-old securities fraud action, I was thrilled.

I spent most of my first week (and weekend) as a working attorney poring over more than a decade’s worth of pleadings, briefs, and deposition transcripts, and slowly becoming more and more overwhelmed. Here I was, knee-deep in files, only hours into my first case, and I had no idea what I was doing. Seriously, what did I know about securities law? And, for that matter, what did I know about how to be an attorney?

I confessed my concern to the other associate on the case, who assured me that it was hardly unique. Of course, I made it through those first few days and we wound up filing what I thought was an excellent brief. Afterward, I realized that there was so much for me to learn from the experience.

Even though I’ve always considered myself to be fairly self-confident, I had definitively been intimidated by the ”newness” of what I was doing. How to avoid that in the future?

Additionally, what did I know about being an attorney? Of course, there can’t be a single answer that works for everyone. Part of what I realized from that first experience is that I was very uncomfortable with feeling that I ”didn’t know what I didn’t know.”

I knew that part of developing more confidence would have to include some time devoted to building substantive knowledge, in addition to what I would learn through case assignments, in the areas of the law in which I wanted to practice.

Young attorneys rarely read advance sheets or journals. This is a waste of countless opportunities, not only to build your base of knowledge in any number of areas, but also to have important interactions with your colleagues.

For instance, if you read something particularly relevant, you can pass it along to others in your department or bring it up at a meeting. As you work to carve out your particular role within your firm, such interactions can be crucial.

They can turn into opportunities to work with key partners on articles or CLE presentations, which, in turn, will likely turn into opportunities to work on cases with those partners. It’ll take years to truly develop an expertise in any particular area, but you can begin to build it almost immediately.

Another crucial part of developing as a young attorney is identifying where your strengths and weaknesses lie, and then seeking assignments that highlight your assets and help you improve in weaker areas.

There’s no single blueprint for success, and developing a little self-awareness will go a long way toward figuring out what works for you. You can go through this exercise formally or informally.

At my firm, for instance, the annual attorney review process includes a self-evaluation, where we are asked to assess ourselves in a variety of areas, including legal ability, billable and non-billable contributions to the firm, and personal qualities.

Aside from being a great opportunity to toot your own horn, the self-evaluation can be an invaluable career development tool.

But whether you do it as part of a firm evaluation process or on your own, the real trick is being honest enough to identify weaknesses in yourself and then figuring out what to do with what you learn.

If, for example, you think that you are particularly organized or a good manager, look for opportunities to manage cases, or even particular aspects of cases, so that this quality can shine. (I’ve found that electronic discovery can be a particularly good area for young attorneys to gain great experience and exposure.)

If, conversely, you think you need work on your interactions with opposing counsel, seek out assignments that will afford you opportunities to go to court or to otherwise interact, and watch others interact, with opposing counsel. (Again, electronic discovery can give you an in here since many partners will be happy to turn this area of responsibility over to even a very junior associate.)

Above all, the process of growing to be a successful associate and to be sought after within your firm will be ongoing. Take time every few months to take stock of how far you’ve progressed and where you’d like to be in another few months.

Often, setting distant goals can be easier than setting short-term ones, but it is the process of setting, and meeting, those more immediate goals that will help you achieve those long-term ones.

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