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.

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.”

Info Tech Law: Arbitration begins with the contract

By Alan S. Wernick
Wernick & Associates

Arbitration, one form of alternative dispute resolution, is an integral part of the fabric of many technology agreements. How an arbitration clause is drafted can have a significant impact in the event of a dispute involving the agreement.

Many contract drafters place the ADR provision into the category of contract boilerplate. Frequently the time-worn ‘’standard arbitration language” is inserted into the contract and the parties may give little additional thought to the ADR provision. Possibly this is because the parties focus, as they should, on the success of the subject of the contract and the arbitration provision speaks to the possible failure of the transaction. For several reasons, I suggest that, in most cases, the arbitration provision should be given more consideration by the parties.

First, if a breach of the agreement is subsequently alleged, the agreement will most likely be read by a third party unfamiliar with the specific negotiations and background of the transactions. Second, that third party may be a judge or an arbitrator trying to figure out what the parties intended in the agreement. Third, in most cases, thoughtful attention to the drafting of the arbitration provision gives the parties an opportunity to shape how their dispute will be resolved in the event of a breach.

There are multiple factors that may be considered by the parties in deciding whether or not to include an ADR provision in their agreement. But, when the choice is made to include an ADR provision, the parties should carefully consider the alternatives in drafting the particular elements of the ADR provision. As the U.S. Supreme Court stated in Preston v. Ferrer, No. 06-1463, decided Feb. 20, 2008):

”[T]he Federal Arbitration Act (FAA or Act), 9 U.S.C. 1 et seq. (2000 ed. and Supp. V), establishes a national policy favoring arbitration when the parties contract for that mode of dispute resolution. … When parties agree to arbitrate all questions arising under a contract, the FAA supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative.”

Like most contract provisions, there is no ”one size fits all” in the drafting of the ADR provision — the ADR clause in one agreement may contain inappropriate language for the next transaction. The ADR clause must be carefully drafted to fit the specific transaction.

The contract drafter, who may be one of the parties or their lawyer, after a careful legal analysis of the particular facts of the specific transaction will make certain decisions concerning what to include, or not, in the drafting of this provision. The following is not an exhaustive list of all possible considerations for the drafting of an ADR provision for arbitration, but will provide you with a starting point:

Arbitration administration (for example, administered by the American Arbitration Association, one of the other arbitration administration entities, or a private arbitrator).

Number of arbitrators (one or three).

Method of selection of arbitrators (neutral selection process or ”party-appointed” arbitrator selection).

Arbitrators’ qualifications (for example, knowledgeable in information technology and/or computer law, licensing, copyright law, and/or the computer industry).

Scope of arbitration clause. (Will it cover all disputes or just certain types?)

Is a stepped ADR process appropriate (include mediation steps, C-level management involvement)?

If the contract is to be formed online, what form of acceptance will be needed to bind the other party to the contract in general, and the ADR provision in particular?

”Entry of judgment” language.

Location of the hearing.

Choice of law provision.

Type of damages available (e.g., injunctive relief, specific performance, money damages). Will preliminary relief be available? (Note, this is permitted under the AAA Commercial Rules.)

Discovery (pre-hearing discovery scope including number of depositions, time limits, discovery period, and so forth).

Form of award (a detailed written [”reasoned”] opinion - but note, it may increase the cost of the arbitration because of the additional arbitrator’s time involved).

Multiple parties issues (for example, disputes involving third parties who were strangers to the arbitration agreement).

Remedies (for example, delineate the scope of arbitrator authority in award, but be careful in limiting the arbitrator’s ability to award any statutory remedies).

If this is an international transaction, consider specifying the language of the hearing.

For some additional drafting elements to consider, you may want to take a look at the AAA’s ”Drafting Dispute Resolution Clauses: A Practical Guide” as one reference. Again, this is not an exhaustive list, and the contract should be prepared and reviewed by knowledgeable legal counsel.

The bottom line is to remember that the arbitration provision is one way to manage your legal risks, so be mindful when drafting ADR clauses, avoid the ”it’s just boilerplate” trap, and be prepared for the contract negotiations of the ADR clause.

©2008 Alan S. Wernick

Closing Argument: National disgrace at Guantanamo Bay

By Thomas P. Sullivan
Jenner & Block

In times of national crises, perceived or real, many of us lose confidence in the ability of democratic institutions to protect the nation, concerns often reflected in the actions of government policymakers. Frightening times present a test of our commitment to principles found in the Declaration of Independence and Constitution, and taught in our schools.

We often slip our moorings, and revert to conduct we condemn when engaged in by other countries, for example, incarcerating Japanese-American citizens during World War II, and spreading fear of Communism during the McCarthy-House Un-American Activities Committee era. As a result of Sept. 11, 2001, this has happened again.

In October 2001, based on a claim that we were pursuing Al-Qaeda, the administration ordered an invasion of Afghanistan. Our forces seized hundreds of men from various countries many purchased for bounties and transported them to the prison located at Guantanamo Bay on the eastern tip of Cuba.

My partners Jeff Colman, Pat Bronte, and David Bradford and I have represented 19 prisoner-clients from Saudi Arabia, Yemen, Iraq, and Libya (13 have been returned to their native countries). We have visited them on multiple occasions.

To appreciate how far we as a nation have departed from our commitment to decency, democracy, and fair play, it is necessary to visit the prison and listen to the prisoners (usually through an interpreter). Appalling is as good a word as any to describe what our government has done and is still doing.

No reason for incarcerating these men has ever been established by introduction of evidence that they are guilty of wrongdoing against our government or anyone else.

Their ”hearings” were kangaroo courts: The prisoners were brought before anonymous tribunals with interpreters but no defense lawyers. Summary charges were read, and the prisoners were asked to respond. No supporting proof was introduced. Prisoners were not allowed to view evidence, cross-examine witnesses, or present evidence or witnesses. The tribunals could consider undisclosed classified evidence. Here are typical excerpts:

Tribunal: ”While living in Bosnia, the Detainee associated with a known Al-Qaeda operative.”

Detainee: ”Give me his name.”

Tribunal: ”I do not know.”

Detainee: ”How can I respond to this?”

Tribunal: ”The classified information cannot be shown to you due to national security reasons. By you participating today, we want to hear your story as well. We haven’t seen any information prior to this.”

Tribunal: ”As to the second request, you asked us to check with the Saudi police in Riyadh. It could prove you were on a humanitarian mission while on leave. — I denied that request as well, because an employer has no knowledge of what their (sic) employees do when they are on leave.”

Belying the government’s unproved assertions that the prisoners must be kept locked away because they are dangerous terrorists, most have been returned to their native countries, without apology, compensation, or explanation as to why they were held for years in virtual isolation, and (needless to say) without publicity from our government. More than 275 remain imprisoned.

Prison conditions are deplorable. Most prisoners are housed in small cells; prevented from contact with fellow prisoners; allowed little reading material in their native languages, no radio or television, and no adequate exercise or medical services. Food in Styrofoam containers is shoved through small openings. Although mental instability has become a serious problem, with repeated suicides and attempted suicides, nothing has been done to alleviate the causes and treat these people as human beings.

My partners and I doubt that any of our clients were or are criminals or terrorists. They were apprehended, in confused and volatile times, and assumed to be hostile and dangerous. They have treated us in a cooperative and friendly manner, but it comes as no surprise when they express loss of faith in our judicial system. We sympathize with indeed, we share their disillusionment with the way the United States has treated them. Our bedrock principles of criminal justice reject preventive detention except for the mentally disturbed.

Accordingly, we say: Each of these men should promptly be given a hearing before an independent judicial officer, with a lawyer if he desires, at which the government is required to establish that there is a valid legal justification for continuing to keep him in prison, and that he will be formally charged with a crime by a specified date. If this is not done, he should be released.

The root problem has nothing to do with closing Guantanamo Bay prison. It is that our government has jailed people from countries with which we are not at war, in intolerable conditions, declaiming them to be terrorists, but without establishing that they have committed crimes. Unless we comply with our own principles, we will continue to be subject to justifiable charges that we are hypocrites, and the object of derision in the international community.

The Crash of Air Philippines 541

By Robert Yates

Eight years ago April 19, 2000, Air Philippines Flight 541, with 131 passengers and crew members, left Manila at 5:21 a.m., flying to Davao City, on Samal Island, about 600 miles southeast of Manila.

As it approached the airport at around 7 a.m., another aircraft was on the runway. Flight 541 began to circle in low clouds, waiting for the plane on the ground to move off the runway. As it circled, Flight 541 slammed into the side of a mountain, 500 feet above sea level. The plane caught fire and disintegrated, killing everyone on board. It was the worst air disaster in the history of the Philippines. But there is more to this story than another horrible air crash. As airplanes in the American fleets wear out when they reach a point where the cost of overhauling the planes, which can run between $2 million and $8 million, is no longer worth it they are retired to the Arizona desert. There are thousands of worn-out planes lined up in the desert waiting for a second life. From there, leasing companies purchase the planes and lease them to other, usually foreign, usually developing, airlines.

Flight 541 was a Boeing 737, a 22-year-old plane that had been put out to pasture by Southwest Airlines, and bought by AAR Aircraft & Engine Group, a publicly traded company based in Wood Dale, Ill. AAR leased the plane to Air Philippines in January 1999 and sold the plane in April 1999 to Fleet Business Credit Corp., now a division of Bank of America, and assigned Fleet its rights under the lease.

The lawsuit against AAR and Fleet was filed in Cook County Circuit Court and, following litigation over the forum issue, including an appeal, stayed here. The lead plaintiff was a Chicago resident, Boeing’s corporate headquarters are here, and AAR is in Wood Dale. Donald J. Nolan of Chicago’s Nolan Law Group, who represented 47 of the plaintiffs, was appointed lead counsel. There were three other firms representing plaintiffs, all from the San Francisco Bay Area: Sterns & Walker; Bowles & Verna; and O’Reilly & Danko. Gary W. Westerberg, Christopher R. Barth, T. Patrick Byrnes, and Mark A. Deptula of Locke, Lord, Bissell & Liddell, represented the defendants.

The case settled in November 2007 for $165 million, which, Nolan said, worked out to about $1.5 million per victim.

Aside from the inherent interest of a huge settlement, the case is interesting as yet another feature of globalization in this case, the globalization of the airline industry, and the ethical and legal obligations of the companies that buy and lease the planes to airlines in countries where the safety standards are well below American and European standards and where even the culture plays a role in the safety of airlines. In the last five years, there have been more than 10 fatal commercial airline crashes involving aircraft leased to developing countries, the latest occurred on April 15 in the Democratic Republic of the Congo, killing at least 75 people.

Chicago Lawyer sat down recently with Nolan to discuss the case.

Chicago Lawyer: What were the liability issues in the case?

Nolan: There were four main issues: crew resource management, the failure to provide an enhanced ground proximity warning system under our product liability theory and spoliation for the destruction of the wreckage and failure to perform maintenance under negligent entrustment.

Chicago Lawyer: Let’s start with crew resource management. First, what is it, then, how is that an issue?

Nolan: Prior to the crash, the FAA mandated in the U.S. that crews have crew resource management (CRM) training, and what that deals with is a culture of deference in the cockpit, where human factors engineers learned and taught, and the FAA adopted, the idea that you have to have a system of checks and balances in the cockpit.

A co-pilot might notice something of imminent danger that the pilot did not notice, and it’s necessary to call that out complete deference is not afforded to the pilot in command. Whereas the FAA mandated that and has a directive in place for crews in the U.S. to have this CRM training, the government in Philippines did not so require.

Asian countries have a storied past with deficiencies in CRM, because it’s a clash with Asian culture, with deference to seniors.

For example, there was a Singapore Air crash in October 2000, on an international flight bound for Los Angeles international flight SQ006 when the crew took off in a typhoon in Taipei. There, none of the crew, even though they knew that it was not an appropriate takeoff, ever checked the action of the pilot in command.

In the Air Philippines case, the pilot was being supervised at the time of the crash by a check airman, meaning a superior on a check ride, and the check airman was one whose actions were not countered by a lower pilot, so we knew there were issues of CRM training.

Chicago Lawyer: How can the lessor be held liable for the crew’s training?

Nolan: AAR never checked to see what the standards were in the Philippines, and just presumed the Philippines would be following the FAA standard, when, in fact, they were not. So, under negligent entrustment law, which deals with what someone knew and should have known [they could be held liable].

Chicago Lawyer: And your negligent entrustment theory also relates to maintenance?

Nolan: This airplane was taken off the desert floor by AAR. It was purchased from Southwest Airlines, which is a high-mileage operating fleet, and this was a [22-year-old] airplane. Southwest Airlines is high-cycle, high-time. They really work their airplanes. Southwest made a decision somewhere along the line not to continue with that airplane a cost-benefit analysis of maintenance, upkeep, and the returns they’re offered on that.

Chicago Lawyer: How much was the lease for?

Nolan: The lease was on a per-month basis. The transactions were seven-figure transactions. I think when the plane crashed they made seven figures just on the insurance. When the plane crashed they had a financial return and a profit on the hull liability clause.

Chicago Lawyer: Who’s responsible for the maintenance?

Nolan: Both the lessor and the lessee. The lessor, having in the lease reserved to itself rights of inspection, and requiring that maintenance and safety be followed under that scenario on a legal basis it can face responsibility for the loss of life. Here, this fleet was not equipped with up-to-date manuals from Boeing.

Q & A: Georgia Logothetis

Georgia Logothetis

Age: 25

Education: A 2003 graduate of Northeastern Illinois University, and a 2006 graduate of DePaul University College of Law.

Career: An associate in the litigation group at Arnstein & Lehr.

• What is the last big deal or big case you worked on that you can discuss, and what did it entail?

I’m working on some very high-profile litigation out in Kane County. It is for the village of Campton Hills. Our firm incorporated a village and Illinois law allows residents who do not want to be part of the village to petition for disconnection. And there is a steady stream of residents in the village who don’t want to be part of the village for one reason or another who have filed these petitions for disconnections. We’ve taken four or five to trial. It is interesting because the cases essentially go from complaint to trial within 30 or 45 days.

It’s also interesting because you have these petitions for disconnections, but at same time there are other collateral attacks on the village. The more high-profile one was an attempt to place on the Feb. 5 ballot an initiative to dissolve the village in its entirety …

A [temporary restraining order] and a complaint were filed to get that proposition on the ballot. I was part of the team that argued under Illinois law that the referendum could not be placed on the ballot. We also argued that there were various procedural and substantive flaws in the complaint. We ended up winning that. That was a huge deal because, had that been placed on the ballot, it would have been very dangerous to the village, and the village may have been dissolved …

• If you could have lunch with anyone, living or dead, who would it be and why?

Barack Obama.

At this point in time having a conversation with him about where this nation is going, what types of policies he wants to implement, and how he will react with Congress when enacting the laws that we as lawyers will be litigating in court, I would love to have this conversation with him. So, Barack, if you are reading this, give me a call.

• What is your favorite book, movie, or television show about lawyers, and why?

I love ”Boston Legal” because, first of all, it’s extraordinarily well-written. It’s not close to the reality of my practice at all, but not many TV shows based on lawyers are.

What I love about ”Boston Legal” is the ways that they weave in commentary into their plot line … I distinctly remember one episode where they addressed torture. [The lawyer] gave the closing argument or opening statement, I can’t remember which one, essentially laying out this fabulous, brilliant case about how in the world we can be debating whether the best country in the world is engaging in torture.

Whenever I watch that show I wish that whoever is writing those types of speeches would write the speeches for the members of Congress or the political candidates because the writing on that show is so great.

• What advice do you have for new lawyers or those wanting to become lawyers?

The one thing that I’ve found from first-year associates and recalling from my experiences as a first-year, I remember sometimes I would have a typo in one of my briefs and I thought it was a horrible reflection upon me. Sometimes I would file something in the wrong division, just by accident, and I thought it was the end of my career as attorney. I was obviously making those traditional first-year types of mistakes …

As a first-year, if you make an error, you shouldn’t dwell on the fact that you made the error, because all first-years make errors and people who have been practicing for 20 or 30 years make errors. You should view that error as: okay, this happened, but why did it happen? But, more importantly, how do we fix it in the best interest of our client? The second piece of advice I would say is to have fun … I think, as first-years, instead of freaking out about an assignment, embrace it. This is your assignment. You get to shape it. You get to produce a product. Put your spirit into it and realize that you are part of team, part of a firm that’s helping people — whether these people are corporations or individuals.

• What do you do in your free time?

Outside of the office, I am a political writer. I’m a contributing editor at the nation’s most popular online political community. And to speak to those who know me, they will call me a political junkie. I’m addicted to C-SPAN. I love following the political process, and that takes up the bulk of my time kind of researching and writing and kind of being part of that movement.

• What do you like the most and the least about being a lawyer?

You can work on something and kind of put your blood, sweat, and tears into it and feel like that one project or that assignment almost killed you. That is probably my least favorite part about being an attorney — just the amount of personal investment that you have to make sometimes on a given case. That is expected and that is what you get when you sign up to be an attorney. That is especially what you get when you sign up to be a good attorney, and when you promise yourself that you are going to be the best possible attorney that you can be …

On the flip side of that, the thing I like most about being an attorney is that when you do win it feels great, and feels great especially when you have put in all of that time, energy, and work. It becomes that much sweeter when you win, knowing that those are the fruits of your labor.

• If you didn’t become a lawyer, what career would you have chosen?

I’m a writer by nature. If I hadn’t become an attorney, I still would have done something with the law, something with talking about the political process or doing something to that effect. My dream job would have been being a speech writer to the president.

— Interviewed by Olivia Clarke

Nelson-Beverly removes the barriers to her dreams

By Olivia Clarke

Heather Nelson-Beverly has rarely taken no for an answer.

When she began researching entertainment law as a career, she received negative responses from some lawyers she contacted. They told her she couldn’t have the type of career she wanted, and warned her that Chicago doesn’t have a thriving entertainment business. But she pushed past the pessimism, and created the kind of practice she dreamed about.

At age 37, Nelson-Beverly has owned the Law Office of Heather Nelson for 10 years, and practices entertainment and entertainment-related law. She lectures around the country, and is active in such organizations as the Chicago chapter of The Recording Academy, which is responsible for the Grammy Awards.

She’s looked to several key role models, especially legendary and now-deceased attorney Donald Hubert, who taught her how to not only be a good lawyer, but also how to run a successful practice.

”I really, really truly believe that there is more than one way to accomplish something,” Nelson-Beverly said. ”There is a huge thriving entertainment law practice, but you’ve just got to have the stuff.

”I would definitely say that I’m driven. I would definitely say I’m purposeful. I like to think that I’m fun along the way, despite the stresses and the schedule and the pressure a lot of the time.”

Learning the ropes

As a ninth-grader growing up in Minneapolis, Nelson-Beverly’s mother and stepfather told her that she couldn’t be the type of college student who went away to school to find herself.

There would be no backpacking trips across Europe or semesters spent searching for a major. She needed to find a career path early on because college can be expensive.

She remembered going to a library and finding a book that matched personality traits with different careers. She decided that marketing fit her personality.

She attended the University of Wisconsin-Madison and earned a bachelor’s degree in business administration and marketing, with an emphasis on communications.

But the thought of taking more classes to earn an MBA did not appeal to her, so she decided to attend Chicago-Kent College of Law. She didn’t plan on practicing law, but felt law school would give her more experience and options, she said.

”Fast-forward, I get into law school and in my first year it is so different than the business school kind of curriculum,” she said. ”But I loved it. It was in my first year of law school that I started to think, ‘Gosh, if I actually decided to practice law, what area would it possibly be that I would practice in?”’

She narrowed her focus to litigation because she was fascinated by the courtroom and oral presentation; and sports law because she played competitive tennis for 10 years and is an avid sports fan.

”As I reached out to more and more friends of mine from college who actually played professional sports, football players and basketball players, to do a little bit of case study on how I would get into doing sports law, it became a little bit ominous,” she said. ”A lot of these kids were either directly referred to agents and representatives, or there’s been someone who has been around for a long time, a friend of the family, or whatever.

”I definitely thought it would be kind of challenging to walk right out of law school expecting to say, ‘Hey, I’m a sports lawyer.”’

But she kept her goals in the back of her mind while attending Chicago-Kent. At the same time she faced the challenges of affording law school.

She said a couple of deans and a financial aid administrator suggested that her only option was to withdraw if she didn’t have the finances.

Nelson-Beverly instead got a job at the Law Offices of Joseph V. Roddy — even though working and attending law school was discouraged, she said.

While in the school cafeteria one day in her work suit, a man approached her and asked if she was a lawyer. He wanted to post an internship opening for his law firm, which handled such areas as entertainment law. She introduced herself as a law student with an interest in entertainment law.

She interviewed, and got the internship at Jones & Walls, a general practice firm. Because the firm represented music groups, it dealt with things like record contracts, music licensing, and deals involving artists and producers. It also handled criminal defense, discrimination and personal injury.

”I’m working. I can’t really afford to be in law school, so I decide to get out early,” she said. ”I really fast-track my course work so I can graduate in two-and-a-half years.

”I want to say, towards the end of my second year I started really thinking seriously about what would be the next step.”

Meeting her mentor

During a Chicago-Kent career day in her last semester, students could pick different workshops and sessions to attend.

Most law students picked the big and mid-size firm sessions, because that’s where the bigger money is, she said.

But Nelson-Beverly read Don Hubert’s biography, and the information about his solo and small-firm workshop.

”In reading his bio, I was absolutely blown away, and I asked to be transferred into that workshop,” she said. ”I went into that workshop, and saw him speak, and he was talking about himself and the practice area and the benefits of being in a small environment and the family environment at [a small] firm.”

At the end of the workshop she asked for his business card, but he said he didn’t have any. She told him she would like to intern for him, but he said he had no positions. But she wasn’t dissuaded.

She said she at least wanted to meet with him at his office. She went there the next day with her resume in hand. He sat down with her and again told her there were no positions, but he wanted to know her story.

”I told him, ‘After seeing you speak and after learning more about you, I would give anything to just have the experience of working with someone with the credentials you have and the caliber of the caseload you have,”’ she said. ”I said, ‘I really just want to learn how to be a good lawyer.”’

Nelson-Beverly said Hubert was very concerned about what she hoped to get out of an internship with only a few months left of law school. He said he was definitely not looking for an associate.

”I told him, ‘You know, six weeks with the best, even if I have to leave, is going to be worth it for my career,”’ she said.

She interned for him in the fall of 1995, and he hired her as an associate in 1996 because he needed extra help handling a large Chicago ward redistricting case.

Her first year as an associate was an interesting, whirlwind year. The firm not only handled a large caseload, but Hubert also had a very public, and somewhat political position, as president of the Chicago Bar Association, she said.

”Whenever you start at a new firm or a new job, you are always told to be the first to get there, be the last to leave,” she said. ”But no matter how hard I tried I couldn’t do it. Don would be there at the crack of dawn and he would work until the wee hours of the morning, just late, late nights.

”He never stopped working, yet was always composed, always sharp — especially in public. His public persona and demeanor were just absolutely magnetic.”

Hubert often spoke candidly with Nelson-Beverly and the other associate, Debby Goldman. Eating pizza at 10 p.m., as they got ready for a case, he would tell them war stories or offer coaching advice, she said.

”It was like working for your dad, it really was,” she said. ”Even with all the demands on him personally, he still took so much time in the personal development of myself and Debby Goldman. He’d be there for us to practice our opening statements and closing arguments for cases.”

Making the leap

Despite enjoying her time working for Hubert, Nelson-Beverly never gave up her passion for entertainment law.

She said she knew she couldn’t pursue this dream right out of law school because she needed to learn how to be a lawyer first. But Hubert recognized her desire to pursue entertainment law, and sent her to workshops and conferences that focused on that area.

While attending conferences, she started meeting people who were looking for legal help. Hubert allowed her to work on those entertainment matters on the side.

”What happened is I actually started developing a practice that I saw had the potential to really grow,” Nelson-Beverly said. ”It was at that point that I had a talk with Don and said, ‘I’m thinking of doing my own thing.”’

Hubert offered to start an entertainment side within the practice so that she would stay, but she said there was really no room.

She made the decision to go out on her own, but she asked Hubert and two other lawyers to work cases with her while she got started.

At first, she not only handled entertainment law, but also areas like criminal defense and real estate. But within nine months she focused only on entertainment law.

”It was definitely a little intimidating, because the buck stops with you,” she said. ”It is now up to you to be able to generate the business in order to really survive.”

Early on she lucked out. One of the first music groups she represented locally, hip-hop group Do or Die, found success in the music industry and sold over 800,000 copies of its first album.

”They ended up being a really big deal,” she said. ”And, quite frankly, entertainment, like any other area of the law, is one where word-of-mouth is very important. If you get associated with what turns out to be a high-profile client, it starts to serve as its own advertising.”

As she built her firm, she was very thankful for her business degree, and for the time she spent working for Hubert. She learned valuable lessons from him about the business side of a small law firm.

”By being in an environment where it is a small firm you have contact with clients the minute they come in the door, until you close their case,” she said. ”You are involved in all elements of running the business, which was a benefit. [My firm] really kind of took on its own life, thank goodness … I pretty much tried to plan as best I could to be prepared for it.”

Today’s entertainment industry

Nelson-Beverly has worked with such clients as ”The Apprentice” star Omarosa Manigault-Stallworth, and former White Sox player Frank Thomas with regard to his record label.

She primarily represents clients in the music industry. Many of her clients tend to be businesses, such as independent record labels and marketing companies. But she also maintains a steady client base of artists, music producers, and songwriters.

Nelson-Beverly said lawyers often intimidate artists, so she tries to be approachable, and she explains the legal side of the music industry in easy-to-digest information so that they understand what is going on.

”It’s wonderful to have a relationship and know that these clients kind of depend on you and kind of trust your word,” she said. ”I have a young producer right now who, for the last several years, would just call me and say, ‘I’ve got questions. I just want to learn.’

”Now he’s got his first placement with a major record company. He’s being looked at by some pretty big-deal artists … We started when maybe he could only give me $50, but I’m like, ‘I don’t care. You are eager to learn.”’

Today she represents many gospel music artists, such as, Shari Addison, runner-up in the BET show, ”Sunday Best.” She also represents Sheri Jones-Moffett, who had a 2007 Grammy-nominated song.

Nelson-Beverly works with Jonathan Nelson, an award-winning songwriter, who, she said, has written for some of the biggest names in gospel music. She has worked with him for several years, and negotiated his recent contract with Integrity Music.

”She’s the best. She’s phenomenal,” Jonathan Nelson said. ”My wife is a hard sell and she met Heather face-to-face not too long ago and they’ve turned into girlfriends. They just hit it off — She has helped me to become further established and organized.”

He said Nelson-Beverly is responsive to her clients’ needs, and, if she doesn’t have an answer, she commits to finding the right one within 24 hours.

”If you can’t get along with Heather Nelson then there is something sorely wrong with you, he said. ”I just wish that more people knew about her. She will become a highly sought-after attorney in the future.”

On the corporate side, she represents such companies as Nu Face Entertainment, a full-service boutique marketing and branding house.

Rita Lee, the company’s founder and CEO, said Nelson-Beverly’s ethics and service-oriented approach make her a good lawyer. She helps her clients understand the law, as opposed to simply giving them paperwork and telling them to sign it.

”She makes sure your business has the protection and the infrastructure to do business for years to come,” Lee said. ”If you want to adjust or change your company, the infrastructure put around you is very flexible.”

Peter Strand, senior counsel at Holland & Knight who focuses on entertainment and intellectual property, said Nelson-Beverly knows what she’s talking about.

”Heather has all the skills and she is also a good face to put on entertainment representation because she is competent and pleasant and she knows what things to battle over and what things not to battle over,” Strand said.

Life-work balance

One of the strengths she believes she brings to her law firm is that she handles litigation, which many entertainment lawyers don’t do, she said.

Her skills helped her, for example, when she represented a client with contracts with a major record label and a prestigious artist manager. The client needed to get out of both contracts because she was filing for bankruptcy.

When Nelson-Beverly and her client showed up to court on the first day, about five large-law firm lawyers, which the record label hired, greeted them. The lawyers ended up not arguing the case because it was briefed fully. The judge wrote a written opinion, and read his ruling in her client’s favor.

”It was kind of one of those David-and-Goliath type moments, especially when you are solo,” she said. ”I might have still been practicing out of my living room.”

When she started her career she interviewed in Los Angeles at places like Paramount Pictures and Sony, but they looked down on the fact that she didn’t attend a top 10 law school.

But she said she knew she made it in her career when that didn’t matter anymore. For example, Harvard Law School invited her to speak at the school about entertainment law — an experience that meant a great deal to her.

Nelson-Beverly said owning her own firm gives her flexibility.

When she first started her law firm, her grandmother was dying from cancer. She was able to gather some paperwork and her laptop and head to Minnesota. She could handle work, and still visit with her grandmother before she died.

”When I was there I was able to spend more one-on-one time with my grandmother than some of my relatives who lived there because they, of course, had to go to work,” she said. ”It was kind of like the light bulb goes on and you go, ‘This is what this is for.”’

She said if it allows her to provide for others or see loved ones more regularly, ”At the end of the day, that’s what it’s all about and that’s what really motivates me.”

That flexibility allows her to live with her husband Anthony Beverly in California while still practicing in Illinois. She splits her time each month between both states.

She also has many more goals beyond her legal practice. She’s trying to write two books, and is in the process of starting a non-profit organization called, What’s Your Legacy? She wants to inspire others to look beyond instant gratification, and focus on what their legacy will be to society.

When asked what her legacy is, she said, ”It is to inspire others to dream big, and not pay attention to all the no’s, and to not take adversity as a block to getting what you want, but to see it as something that you’ve got to overcome to get what you want.”

Just as she received mentoring from such lawyers as Hubert, she too tries to mentor others. She said she remembers what it was like when some lawyers didn’t help her, and how she benefited from those who did.

”I got a lot of unanswered calls when I tried to do research [about entertainment law],” she said. ”I vowed that I would never do that.”

One person she mentors is Shayla Cooper, who is of counsel to her firm.

”She just trusted me with her business, trusted me with her clients and made herself available to me for anything,” Cooper said. ”The way that she gives of herself, her expertise, her career — basically everything that I know about the entertainment industry I know because of her.”

Law evolves with growth of biotechnology

By Maria Kantzavelos

Louis Pasteur may have received a patent on his work with yeast — a living organism — back in 1873, but it was Ananda Chakrabarty’s invention of a live, genetically engineered bacterium capable of breaking down crude oil that was at the heart of a 1980 U.S. Supreme Court decision that is said to have opened the door to the business of biotechnology.

Industry experts point to the high court’s ruling in Diamond v. Chakrabarty, which established that genetically engineered life forms are patentable, as the impetus for the commercialization of an evolving technology that generally involves the manipulation of living things to make or change products — such as human therapeutics to treat certain forms of cancer, crops that are resistant to drought, or new forms of fuel.

”It was just a matter of timing and rather interesting technology that made for headlines and heavy-duty investment,” said Michael F. Borun, of counsel to the intellectual property boutique Marshall, Gerstein & Borun. ”A patent is a short-term monopoly, and investors love monopolies. When people saw that there was a space for some exclusivity in this technology, then the money came floating in.”

So did a new niche in the practice area of intellectual property law.

”It’s economics,” said Borun, who is considered a pioneer in biotech patent law. ”Law firms said, ‘There’s money to be made in providing services in this area to clients, but we don’t have anybody with a technical background. Let’s start hiring people with PhDs in molecular biology.”’

Chakrabarty, now a professor of microbiology and genetics at University of Illinois at Chicago, was working as a scientist for General Electric when he came up with the oil-eating bacterium that would be used to clean up oil spills.

Since the high court’s decision holding that the tiny, live creature is patentable subject matter as an article of ”manufacture,” the U.S. Patent & Trademark Office has issued numerous patents on genetically modified microorganisms and other life forms, as well as cells, tissues, and molecules derived from those things — like nucleic acids and proteins. The patents cover such areas as immunology, antibody production, gene therapy, and genetically altered, or transgenic, crops and animals.

The United Nations Convention on Biological Diversity defines biotechnology as: ”Any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use.”

Many biotechnology inventions serve as the building blocks to potential products that eventually make it into the marketplace. Those results could be a life-saving drug; a pet cat engineered to be hypoallergenic; transgenic plants like one that allows tomatoes to be picked green and ripen thereafter, or soybeans and other crops that are resistant to herbicides; and livestock engineered to produce proteins in their milk.

Headline-grabbing developments talk about cloning animals like prize bulls, or the possibility of one day using stem cells to ”grow” human organs or tissue, or specially engineered microorganisms to aid in the development of biofuel.

The applications of biotechnology tools are wide-reaching.

When Janet M. McNicholas talks about the industry, the biotech patent lawyer who co-chairs the life sciences practice group at Bell, Boyd & Lloyd borrows a motto from the Washington, D.C.-based Biotechnology Industry Organization to point out that biotechnology can work to help ”heal, feed, and fuel” the world.

”What biotechnology does is, it provides solutions,” McNicholas said. ”We’re talking about solutions for problems, whether that problem is that you can’t grow enough corn to feed people, or you have cancer and you need something to get rid of it. There’s some problem that relates to human beings in a really important way — that’s something the technology has the ability to solve.”

IP is crucial

In today’s research-intensive, highly regulated industry of biotechnology — a field steeped in ideas, invention and science — a company’s intellectual property can be its main asset, particularly when the company is getting started.

As such, industry experts stress, the protection of that intellectual property — often in the form of patents — is fundamental to the industry.

Janet M. McNicholas of Bell, Boyd & Lloyd and David W. Clough of Howrey (with Kevin E. Noonan of McDonnell Boehnen Hulbert & Berghoff back to camera) in a lab of the Department of Biochemistry & Molecular Genetics at the University of Illinois at Chicago’s College of Medicine.

”It’s especially important to the biotechnology industry, because the investments that are necessary to bring a biotech product to market are so huge that unless you have very strong intellectual property protection, the risk is so much higher than with, say, a software company,” said David Miller, president of the Illinois Biotechnology Industry Organization, a local biotech trade group.

For example, it can take up to $1.2 billion and sometimes more than a decade to fully develop a new therapeutic protein — an antibody to treat a disease like cancer — and to bring it through U.S. Food & Drug Administration approvals and into the marketplace, said McNicholas, who is also a former molecular biologist.

”These things — the products — come from living things. Those living things — whether it’s a living plant or a living cell — that’s not the same as some kind of cheap plastic product from China,” McNicholas said. ”’These are very complicated systems, and they require a great deal of research and development, and they’re regulated.”

That’s where lawyers with a mix of expertise in the biological sciences and intellectual property law enter the picture.

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