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Kirby Wilcox is a partner in the San Francisco office of Paul Hastings, where he practices in the firm’s employment group. His practice focuses on all aspects of employment litigation and counseling for corporations. In addition to his practice, he serves as chief editorial consultant for “California Employment Law,” a treatise published by Matthew Bender. He received his law degree in 1977 from Hastings College of the Law in San Francisco. Wilcox was interviewed by Leslie Gordon. Q: What first drew you to employment law? A: I was a summer associate at Morrison and Foerster in 1976, and had every intention of becoming a lawyer in one of two very different disciplines, either as a litigator or a real estate lawyer. I spent that entire summer working on projects that were litigation and real estate-oriented, and when I got about three weeks from the close of that summer and had run out of real estate and litigation projects, I took on a few employment law projects just to complete the summer and was completely captivated by the work. Even though I had spent such a short time doing those projects, I asked the then existing head of the department whether I could be considered for an employment opening if I got an offer. He said yes, I got an offer, and I joined Morrison & Foerster the next year as an employment lawyer. I’ve stayed that course ever since. Q: I’ve heard there’s a perception out there that there’s a greater degree of collegiality among plaintiffs and defense employment counsel in Northern California than there is in Southern California. Do you think that’s true and, if so, what does that mean in terms of how lawyers in Northern California go about their practice? A: I have heard that there is a greater degree of collegiality between defense and plaintiffs’ practitioners in the north than in the south. I have gotten along with the Southern California plaintiffs’ practitioners with whom I’ve interacted, so I have not felt that dichotomy. But to the extent that it exists, the reasons may in part derive from the fact that there are a relatively small number of practitioners who practice employment law on both sides in the north, and we all know each other from many, many past engagements. And for the most part, we all practice with a common philosophy that has two aspects: One, we don’t prejudge cases just because we practice on one side of the fence. We are, to a great degree, influenced, as I think we should be, by the facts and the applicable law. The second practicing philosophy is that I think that, by and large, we all understand that if we engage in objectionable conduct with one another on a current engagement, we’re very likely to encounter each other on an engagement soon down the road. And it’s imperative that, from case to case, we maintain our credibility with one another because that credibility in the end is critical for our respective clients. So I think that, while we argue different points from different vantages and may vigorously disagree with one another, we tend to handle those disagreements respectfully because we’re going to have to work together on other matters. Q: How has your practice changed over the years? A: During the period in which I’ve been in the profession I think that the practice has changed in two primary ways. The first way is substantive. When I started, the predominant focus was on the National Labor Relations Act and matters having to do with organized employees and their employers. Over time, the substance of the practice changed to include a far greater percentage of equal employment opportunity cases. After that came wrongful discharge, then sexual harassment and other forms of harassment. And then there was a wave of wage-and-hour actions, which we’re still seeing. Back when wrongful discharge was coming into vogue, there were also quite a number of cases involving privacy and disability discrimination, which have continued through today. Employment law is one of those specialties that has reinvented itself substantively many times over during the years that I’ve practiced. It’s gone from a practice that was focused on very few areas to one that covers 20 or 25 very different and very significant types of claims involving employers. The second major way in which the practice has changed involves the ebb and flow of litigation and where that litigation is practiced. Again, when I first started there was a great deal of agency litigation involving the National Labor Relations Act. When wrongful discharge became prominent, state court litigation increased tremendously. Before that, if we weren’t doing NLRA work, we were doing Title VII work, which was largely in federal court. Fast forwarding to the present, employment litigation can take almost every conceivable form and involve the U.S. Equal Employment Opportunity Commission, the state Fair Employment and Housing Commission, state court, federal court, U.S. Department of Labor’s wage-and-hour administrator and so forth. Over time, the amount of time spent engaged in providing advice versus being in litigation has also ebbed and flowed. My practice today is more than 50 percent advisory, but only slightly more. That’s because there are still so many wage-and-hour class actions. But the specialty is complex enough now that employers are devoting significant resources to compliance efforts to avoid litigation. Q: When you do actually have a piece of litigation, such matters are now often settled before trial or resolved through some form of alternative dispute resolution. Given that, how do law firm associates get trial experience these days? A: Even though the current dominant form of litigation is class action litigation and even though the majority of those cases settle well before any trial preparations begin, wrongful discharge, disability, age, privacy and other forms of individual actions continue. The best way to say it is that when wrongful discharge first became possible, those cases for years dominated the practices of both plaintiffs’ and defense lawyers. As employers learned to make discharge decisions that were less vulnerable to attack, the number of those cases dropped off steeply. However, wrongful discharge, disability, privacy and age cases still exist, and because employers are more sophisticated at the ways in which they handle those cases, when they are brought now, employers are more likely to feel that they have acted properly and are more likely to want to take those cases to trial. That’s in contrast to the past, when the definitions of a wrongful discharge cause of action, for example, were more vague, and it was less clear how juries would be instructed and what rules would apply. Now that we know what rules apply, again using wrongful discharge as an example, employers who follow those rules are more likely, if attacked, to want to defend the managers who made those decisions and take those cases to trial. We still go to trial in our office about two to three times a year, which is a lot. Q: What do you see as the next wave of employment litigation cases? A: I think that the next wave will be a resurgence of two types of litigation that have been ongoing but that I think will see increased activity. Those are age discrimination and disability discrimination, and I believe that because the baby boomer group is nearing that point when there are going to be illnesses and there are going to be natural replacements. Some of them who are replaced or who become ill, I think, will feel that they’re the subject of adverse action and will file claims on that basis. So I think there’s going to be a demographic reason for increased claims in those two areas. I also think that sex and race discrimination and harassment cases will remain robust, as will the wage-and-hour cases. But I mostly expect an increase in age and disability cases. Q: If you could put together a wish list for your practice, what kinds of substantive changes in the law would you like to see? A: First, with regard to wage-and-hour law, although it is an area in which I’m spending a great deal of time, I know of no practitioner � whether on the employer side or plaintiff side � who believes that federal and state wage-and-hour laws are reasonable and understandable. The laws in this area are arcane, containing many non-intuitive traps for the unwary, and I think federal and state laws should be made the subject of a very thoughtful overhaul. I’d like to see either a federal panel or a state panel with diverse membership get together and make a consensus proposal for changes in this area. I think that the rules are spawning too much litigation involving issues that don’t merit the expenditure of attorney and judicial resources that they’re currently receiving. In the area of disability discrimination, my wish would be for much greater clarity regarding the standards that define reasonable accommodations. Most employers have no difficulty with the concept of providing a reasonable accommodation but have very little theoretical guidance as to what accommodations are reasonable, leaving an enormous vacuum within which to litigate. Most employers would benefit from having greater clarity, and in the main would not object to that clarity even if it meant accommodations with which they might otherwise disagree. The issue is that in the gray area in which we all practice, we’re wasting enormous attorney and judicial resources trying to resolve issues that could be made clear through statutory and regulatory guidance. I could go on, but I think I’ll stop there. Q: What are your thoughts on pressure from your clients to lower their legal fees in the face of rising associate salaries at big firms? A: There have always been and continue to be cost pressures. At the same time, within the legal profession, particularly when it comes to employment law on the employer’s side, there have been tremendous strides in productivity accomplished through computerization of various aspects of our practice. For example, most of the cases are paperless, which reduces the need for large groups of paralegals and reduces pressure on the need to hire additional associates. Also, the various kinds of software that enable attorneys to scan enormous databases of prior pleadings and templates enables us to create documents themselves in very short order, reducing the number of hours devoted to those tasks and thereby reducing the cost to the client. Research tools at the desktop level allow us to search every conceivable court and agency database for precedents that, again, speed the process, reduce the need for additional headcount and drive costs down. To give you an example, we not only have the ability to search for past templates but also have document generation software. In other words, if we input a client’s name and a court and various actions, at least for an initial draft, the software will create the answer to a complaint that includes all of the necessary affirmative defenses. That can be done in a matter of a few minutes rather than a few hours. All of these software-driven and hardware-driven advancements in productivity have enabled relatively stable groups of attorneys to handle two and three times the quantity of work that they handled 10 years ago. All that means more efficient use of time and less cost to the client. This computer-driven productivity cannot be overstated. It has revolutionized the practice of employment law. Q: What’s perhaps the one thing you would change about practicing employment law at a big firm? A: Personally, I can’t get enough computerization. I’m in a firm that devotes enormous resources to the computerization of my area and practices. I hope that we never let up. I hope that we are soon to the point where almost every case is paperless, where there’s voice recognition software that will enable us to talk to a computer screen and watch the document unfold in front of us as we speak. I think that we’re just a few years away from that. Q: What kind of message, if there is one, would you like to give to plaintiffs’ employment lawyers? A: That litigation would be less about the fight and more about the solution. Often, there are common objectives and wildly diverging means to achieving those objectives. If there’s common ground with regard to an objective, there ought to be a way to achieve that objective with less litigation cost.

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