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The work of talented, hard-nosed litigators building top-notch commercial practices is often compared to athletic competition. Whether a litigator’s career is still developing like that of a young athlete on a professional farm team or a trial lawyer has reached superstar free-agent status, they both may be asking the same question: How can a litigator achieve the most success and satisfaction in major business litigation? In other words, how can one become a star player on the best team? While great litigators can be found at firms of all sizes, the country’s largest litigation departments are different in some ways. Obviously, as a result of their size, firms that field more than 350 litigators normally have the scope of practice and capacity to litigate claims involving many large-scale business disputes that typically cannot be duplicated in a smaller firm. Thus, when entire industries become subject to attack (such as big tobacco, failed dot-coms and high-priced energy producers) or when individual companies confront world-class problems (as have American Airlines, Bridgestone/Firestone and Enron), the nation’s largest litigation firms usually arrive on the scene, often many large firms on separate sides of each dispute. By almost any measure, the last several months have represented the “off season” of the legal profession — particularly for lawyers practicing at full-service business-oriented law firms. Many such firms have been confronting a triple whammy: the downturn of technology start-up businesses, the general economic contraction leading up to the recession and the fallout in selected hard-hit industries from the Sept. 11 attacks. The growing cacophony of media reports of law firm associate layoffs, top-level management changes and anticipated reductions in partner compensation comes as no surprise. The bright spots in this generally gloomy picture have been the robust reports from the nation’s largest litigation departments. In addition to the litigators working on matters driven by the faltering economy — bankruptcies, employment claims tied to reductions in the work force and securities class actions directed against underperforming or failing companies — other litigators at many large firms have never been busier. The litigation of high stakes disputes involving intellectual property, toxic torts and antitrust has not only survived but flourished recently at those firms that have large litigation departments. For litigators practicing at smaller litigation firms or larger, traditionally transaction-dominated corporate law firms, current circumstances may appear bleak. This may be the case for associates watching the partnership ladder being pulled further away and for successful litigation rainmakers now faced with the need to support overstaffed and underproducing transactional departments. In this climate, the stability and growth opportunities offered by the largest litigation practices are too attractive to ignore. So what do these litigation giants look for when they seek to add new partners? A PREMIUM ON WINNING At bottom, big-firm litigation practices need partners who are high-quality trial lawyers and can win major cases. The days when large law firms generated waves of “back room” or “support” partners have generally passed. If litigators’ skills and experience don’t qualify them to act as first chair trial lawyers in major cases, they are not yet ready to become litigation partners. Depending on whether a practice is plaintiff- or defense-oriented, to become a partner at a large litigation firm, a litigator needs a long track record of obtaining or avoiding class certifications, winning or preventing the entry of summary judgments, forcing favorable settlements through the marshalling of compelling evidence obtained in discovery and having actually tried and won cases in court. Historically, large-firm litigation department members were distinguished from “trial lawyers” because so many big-firm cases get settled. Settlement statistics probably haven’t changed that much, but the leading litigation departments at the nation’s largest firms now clearly expect their partners to be eager and able to win big cases at trial. While it is undoubtedly the case that some large firms still have litigation partners without substantial trial experience, a lawyer clearly will not be well-positioned for a new partner slot without meaningful stand-up experience in court. Although litigators are obligated to settle cases whenever it is in their clients’ best interests to do so, aspiring big-firm litigators should seek out trials wherever possible and wherever consistent with client goals. It is always difficult to predict which of one’s existing or new cases will actually get tried. There are, however, other opportunities to seek out trial experience. Some bar associations provide formal programs that offer additional trial experience for developing litigators. For example, many large litigation firms in Southern California support the Trial Attorney Project (TAP) of the Los Angeles County Bar Association. Under this program, large firms “loan” litigators to local prosecutorial offices to conduct trials in criminal matters, after receiving training provided by the TAP coordinators. Other courts maintain lists of publicly appointed private counsel for cases involving conflicts with the public offices that provide representation to indigent parties. Many of these programs relate to civil matters such as child welfare proceedings and public conservatorships. Clearly, these experiences are not the equivalent of trying large civil cases and cannot alone build a superstar resume, but they can help to fill out an otherwise limited trial scorecard. Although some of these appointments do involve payment of fees for services, others (such as the TAP program) also provide opportunities for lawyers to fulfill pro bono commitments. As the winter progresses and sports fans begin to turn their attention to spring training, lawyers hoping to become big-firm litigation partners should remember what that process is all about. Future superstars in the major sports leagues have to learn to perform the basic tasks of their professions at the highest level, every time. Excellence and success are built from the bottom up. Litigators who want to succeed in the biggest and most demanding cases (and at the biggest firms) must develop their skills in the same way. When lawyers can perform careful, creative and exhaustive legal analysis; when they can write commanding and persuasive briefs; when they can take devastating depositions; and when they can convince the most skeptical jury of their client’s position, they will be ready to enter the upper echelons of their profession. That is what large litigation practices look for in their new partners. Given the number of law school graduates entering the profession these days, and the number of experienced lawyers looking for firms with brighter futures, the largest litigation firms, like the best sports franchises, have the luxury of holding out for the top draft choices and free agents. Not all such recruits will succeed, but big firms know that’s where most future litigation stars can be found. TECH GURUS MAKE THE GRADE As large litigation firms more often handle more complex and high-stakes cases, they pride themselves on the cutting-edge technological resources used in the representation of their clients. Litigators whose practices don’t include as many large cases may not be as accustomed to using available technology. Although large firms don’t demand that each of their litigation partners carry a BlackBerry, aspiring partners must have a general understanding of how technology can improve efficiency and the quality of client representations in large-scale litigation. Leading litigation departments at large firms have created knowledge management systems. As partners, litigators need to know the capacity of these systems and how they can be used in large cases. It is no longer acceptable for big-firm litigation partners to ignore the basic tools made available to them on their desktops. In most cases, this will consist of an Internet search engine (providing access to practice-specific Web sites), Microsoft Powerpoint (for presentations), Microsoft Excel and Microsoft Access (for document management). Document management systems are the backbone of a firm’s institutional knowledge and therefore the primary element of the knowledge management system. Litigation partners will need to know the fields used for the coding of documents as those fields provide the avenues for document retrieval. Partners should be aware of litigation case management tools such as Concordance and Summation for data, and IPRO and Doculex Document Imaging Software for images that facilitate the organization of document populations, transcripts, videos and exhibits for each of their cases. Many large-firm clients and cases (particularly those involving shared data with co-defendants or experts) now require case management solutions that allow for collaboration. There are many Web-based vehicles (such as CaseCentral, Virtual Partner, iCONECT) that provide third-party hosting and allow for multiparty access. Additionally, partners need to be savvy about electronic discovery. Large litigation departments are capable of securing and extracting data from the hard drives of opponents’ computers and advise their own clients on the discoverability of metadata and other forms of hidden or previously erased electronic documents and communications (such as archived voicemail messages). Finally, use of such case management tools allows a firm to move a case efficiently from the office to the courtroom, where litigators can select from available trial presentation software (such as Trial Director Trial Presentation Software, Visionar, etc.) Litigators who hope to become large-firm partners should also be familiar with the movement toward paperless litigation. If trial lawyers have never filed electronic briefs (with internal citation links and imaged attachments, including video clips), they should be aware of this growing trend and be prepared to file their own electronic briefs when courts permit. Moreover, some large firms are implementing paperless office procedures whereby the reproduction and circulation of pleadings and other litigation materials to litigation teams is no longer wiping out forests (and inflating duplication charges to clients). Indeed, the use of technology and its resulting efficiencies is one of the advantages that bigger practices offer to clients dealing with large litigation demands. Those litigators who don’t reassure clients that their litigation is being conducted with due regard to cost-saving opportunities, if reasonably available, run the risk that their clients will look elsewhere for representation in their next big lawsuit. Being viewed as “technologically averse” clearly is an unnecessary handicap for litigators seeking partnership at a big firm. RAINMAKING COUNTS While the emphasis on a strong defense in many team sports is widely credited as a reliable strategy, the importance of a litigator’s book of business to a large law firm is less precise. Unquestionably, the ability of lawyers to attract clients to, and generate fees, for law firms (particularly if that business is portable) dramatically affects their market values. Many firms place particular emphasis on credit for origination of client work when fixing partner compensation. The use of origination credit formulas, and even the practice of assigning such credit in a formal way, however, is not universal among larger firms. This is particularly true for firms that can develop clients based on institutional quality and capacity. Most large law firm litigation departments have a long tradition of recruiting law students and training them to be outstanding litigators. While such firms differ in the partnership opportunities they afford their associates, it is common for new litigation partners to be made from a large firm’s associate ranks where such associates have not yet established sizeable books of business independent of preexisting firm-client relationships. The reasons a large firm has for seeking lateral partner additions to its litigation department also can suggest that a large book of business is not the primary objective being sought by the firm. In situations in which the firm has an existing client base that is generating volumes of work the firm is straining to complete, the ability to add partners who can supervise and be leveraged by additional associates to satisfy existing client demand often is the priority. For litigators with a substantive specialty (such as patent litigators with a technical background or experienced antitrust litigators), large law firms may look to add partners to create capacity in high-value areas both to facilitate firmwide marketing initiatives and to cross-sell these sought-after specialties to existing firm clients. Obviously, the presence of portable client relationships that have generated fees in the past provides great assurance that a particular candidate will be a productive partner. The demonstration of strong client service skills and client development initiative, however, can also provide similar comfort. If hopeful litigators don’t have significant portable business, they should work to make a record of their talents that can predict future success in business generation. They should ask former clients and judges they have tried cases before to provide references. In the final stages of lateral partner recruiting, a managing partner or litigation department chair may want to speak with such references to get confirmation of a litigator’s interpersonal skills. Partner prospects are well-advised to develop a written personal marketing plan and make progress toward achieving its objectives. Although different legal markets and practice areas will call for different plans, the business development departments at most firms can assist litigators in crafting an appropriate custom strategy. Common tactics include speaking and writing about a substantive specialty. Litigators may try to identify and join trade associations in which they are likely to meet client prospects in their areas of practice. In-house lawyers from potential clients can be invited to attend continuing legal education programs sponsored or presented by litigation specialists. Of course, the bottom line is to become known by those who will select outside counsel for litigation matters. All litigators should take steps that will make them more visible in their business communities. Large law firms are accustomed to assessing a lawyer’s prospects for success. Aspiring litigation partners must make sure their prior minor league records appear consistent with future major league stardom. Frederick L. (“Rick”) McKnight is partner-in-charge of the Los Angeles office of Jones, Day, Reavis & Pogue. He has a complex business litigation practice with an active trial docket in antitrust, securities and other business torts. Daniel J. McLoon is a Jones Day partner and is the litigation group coordinator for the firm’s Los Angeles office. His practice is focused on large-scale litigation, including nationwide class actions and national coordinating counsel roles.

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