Over the past year, some of the biggest names in U.S. business have engaged in headline-making litigation. Whether their battles concerned intellectual property, labor and employment, or other corporate concerns, these companies turned to some of the country’s top litigators to fight for them.
Two such companies—Apple Inc. and Wal-Mart Stores Inc.—that faced bet-the-company lawsuits successfully garnered courtroom victories, not only because the facts of the cases were in their favor, but also because the litigators who argued their cases possessed a distinct set of skills.
Apple’s and Wal-Mart’s success should be a lesson to all in-house counsel about the value of choosing outside counsel wisely. Smartly selected representation is especially important as law firm billing rates steadily increase (a recent report from legal software company TyMetrix and the Corporate Executive Board research firm found that the average hourly rates from 2009 to 2011 for large law firms increased by 13 percent) and as legal departments increase their overall legal spend (an HBR Consulting survey of 260 companies found that in 2010 and 2011, businesses spent more on outside counsel than they did in the preceding two years).
In this article, star litigators offer insight about what makes a great trial lawyer and how in-house lawyers can support their outside counsel as they represent their companies at trial.
Howard Scher, a shareholder at Buchanan Ingersoll & Rooney and a fellow of the prestigious American College of Trial Lawyers, an organization comprising the top trial professionals in North America, recently wrote an article for InsideCounsel.com outlining the top characteristics of successful litigators.
The first of the five key traits, Scher says, is credibility. “Credibility fundamentally means do not promise what you cannot deliver,” he explains.
The second trait on Scher’s list is civility. He says in-house counsel should steer clear of litigators who come off as too pompous or combative. Although it’s important that outside counsel demonstrate their strength during trial, aggressive attitudes should stay in the courtroom. “Outside the courtroom, there is no reason why you can’t be totally civil and cordial to your adversary,” Scher says.
The final three traits on Scher’s list are confidence, curiosity and competitive spirit.
Theodore Boutrous Jr., a Gibson Dunn partner who last year represented Wal-Mart at the Supreme Court in Wal-Mart Stores Inc. v. Dukes, says there are a few more key characteristics in-house counsel should seek out in their trial lawyers. He says it’s important to hire lawyers who prioritize two-way communication and understand their clients’ litigation objectives. Companies also should look for outside counsel who are creative. “They should look for paths to victory that might not necessarily be jumping off the page,” Boutrous says.
Boutrous also says successful litigators are “tenacious but respectful of their opponents, the courts and the process,” and they are able to stay even-keeled throughout the ups and downs of litigation. “They keep their emotions in check,” he says.
Morrison & Foerster Partner Harold McElhinny, who is a fellow of the American College of Trial Lawyers and who represented Apple in its recent patent litigation against Samsung Electronics Co. Ltd., adds that successful litigators have a strategic sense and an innate ability to tell a story. “The trial system is actually quite hard, if you think about it,” he explains. “Juries don’t hear things in chronological order. It’s hard to make sure they get the whole picture before they make up their minds. So the ability to tell a story that your witnesses build toward and that you can reinforce in your closing is important.”
Experts say litigation success also hinges on whether in-house counsel lend the right support to their trial teams.
“In-house lawyers have to make their lawyers realize that the case matters to them,” Scher says. “The one thing that is doomed to fail is a hands-off attitude. If in-house counsel says, ‘This is your case, go do whatever you want,’ and basically doesn’t care, that’s the worst. Lawyers like to know that what they’re doing makes a difference.”
Furthermore, inside counsel should make their company’s culture and expectations clear. “You want a client who explains what an appropriate manifestation of their business personality is” so outside counsel can advance the company’s cause, Scher says.
Boutrous agrees. “Communicating clear objectives and parameters, and the general counsel’s own view of the case, and what would be, in their view, a positive resolution, helps trial lawyers chart how to get there,” he says.
McElhinny says in-house counsel can also support their trial teams by finding the proper balance between trust and involvement. “It’s important to recognize and support the expertise that you’re hiring,” he says. “On the other hand, it’s your case and it’s your company. You have to be a player—you can’t simply hire somebody, turn the case over and hope that it turns out for the best. The best client relationships I have are teamwork ones, where everybody recognizes what they bring.”
When asked what his strategy was for winning the Wal-Mart Supreme Court case, Boutrous says preparation was everything. “I tried to understand how the justices would look at the issues from their perspective and prepare for the questions that I thought were going to come,” he says. “In the argument itself, I focused on the issues that I thought all nine justices were likely to agree with us on and kept coming back to those issues.”
McElhinny wouldn’t comment personally on what he thought was the key to his success in the Apple trial against Samsung, but he said one National Public Radio story noted that the difference between the Apple lawyers and the Samsung lawyers was that the Apple lawyers had a story to tell. “Everything that was said in the courtroom built around this clear, consistent story,” McElhinny says. “It was very hard to understand what points the Samsung lawyers were trying to make because it all seemed sort of scattered. I took that as a great compliment. We worked hard on that.”