When Alston & Bird’s intellectual property partners talk about strategy, they like to say it begins with relationships.
"Neil Williams [the late managing partner] used to call it a ‘shared enterprise,’ " says Frank G. Smith III, a partner in the firm’s IP litigation group. "It’s a relationship that we build up by working on a repeat basis with our clients. We have a common vision of what we want to accomplish. We understand the culture of the client and how they do business and we try our IP cases with that in mind."
Keith Broyles, the national leader of the IP practice, picks up on the theme. "It’s also our internal culture; we reward collaboration. It’s not one person and we have incentives to broaden our teams. We give young lawyers the opportunity to wade in and contribute. We are deeply ingrained in our clients’ business and we know the client’s strategy right down to document production. It’s a big deal to us that we are consistently named one of the best places to work."
Alston & Bird’s IP litigation group has about 100 attorneys, and they may come down on the side of either defense or plaintiffs as they protect client’s assets in patent, trademark, copyright and trade secrets.
A recent BTI Consulting survey of general counsel and other top corporate lawyers cited Alston as one of three national law firms that are "powerhouses" in IP litigation.
In 2012, the firm protected clients’ products that ranged from cars to flea medicine. In the latter category, Alston & Bird represented Merial, the maker of the popular Frontline flea and tick prevention for dogs and cats. The firm won a contempt order and injunction against a company that copied Merial’s proprietary formula.
In another case, Alston represented e2Interactive, a distributor of electronic gift cards, against a rival that had copied parts of the company’s underlying code and technology. The case resulted in a permanent injunction and a $3.4 million verdict against the competitor. Smith was the lead lawyer on both cases.
Broyles went to bat in 2012 for client Volvo Cars of North America and Autoliv, a maker of air bags and safety technology for cars, against a claim by another airbag company that alleged that Volvo and Autoliv had used its technology. The plaintiff ended up dropping both cases in the face of motions from Alston & Bird.
In a case involving Knology, a cable TV company represented by Patrick Flinn, Alston lawyers were able to persuade plaintiffs to drop claims against their client early after showing that the two firms were using different technologies.
The team’s approach is to define the issues and decide priorities. "Not everything is worth a client spending his money and wasting your time," says Smith. Then comes the formulation of a "road map to victory," which defines how they will present the case, how they might approach a jury trial, and how to look for peripheral issues that might help the case, such as what legally is happening in international patents.
"It depends so much on what the client wants," says Flinn. "We have some clients who say ‘Never settle with [patent] trolls,’ and others who get sick and tired of it and say, ‘How much can we settle [for] to make this go away?’"
Broyles bottom-lines it: "Basically, it’s how do you get your client out of the situation? ASAP."
Smith says sometimes going to a jury is the best alternative, and there’s an art to presenting complex, technical cases to laypeople. "They don’t want you to dumb it down. They want you to clarify. They want you to tell a story that includes the science, but is not limited to the science. If they don’t understand it, they get frustrated, hold it against you and tune out. They’re trying their hardest to understand. You can never oversell by being clear."
The key to being a good litigator is thinking on your feet and being prepared, Smith says. "But the most important thing is to be yourself. Don’t pretend to be something you’re not."
For Flinn, it’s all about the opening statement. "It’s the most exciting thing when you face the jury for the first time and lay out what you are going to prove. It’s your story."
The downside? "Sending out bills," Flinn says. "I just think there’s such a sacredness of the lawyer-client relationship. I prefer the great tradition in England where the lawyers wear those robes and in the back of the robe is a pocket where the clients puts in the payment. I really like that."
Broyles appreciates the strategy—putting the pieces of a puzzle together. "How do I get from A to Z? I love that. And I really hate bad lawyers, [who] are frustrating. It’s easier and more fun to deal with good lawyers," he says.
Smith says it’s the intellectual rigor that keeps him excited about his work. Noting that he earlier practiced in white-collar crime and antitrust, both highly specialized fields, he calls patent litigation "the most complex of all."
"And while it’s true that many patent cases are not bet-the-company cases, there are a fair number that are. … It’s got the coming together of economics, science and a very complex and often arcane body of law, and the high-end nature of it," Smith says. "I’m not sure you see that in any other litigation practice."