This past year Orrick, Herrington & Sutcliffe won two jury trials in eight months for aerospace manufacturer SpaceX in cases brought by former employees, knocked out worker misclassification claims against Morgan Stanley and fought off an injunction bid from game developer Zynga in a trade secret case against client Scopely. Mike Delikat, chairman of Orrick’s global employment law practice, and Andrew Livingston, the deputy practice group leader, responded to questions from The Recorder about those wins and what sorts of employment cases clients bring Orrick’s way.
What do each of these matters demonstrate about the firm’s ability to litigate and try labor and employment cases? Unlike many of our peer firms, clients come to our employment law team because we have a proven bench of trial lawyers, expert in employment law matters. This sends an important message up front to plaintiffs bringing claims against our clients, often enabling us to obtain favorable resolutions for our clients early on or otherwise prevailing on case-dispositive motions, which will avoid the expense and risk of a trial.
What would you say is the trait of your litigators and your labor and employment practice, in particular, that keeps clients coming back? Although we have an enormously capable bench of employment trial lawyers, we look for creative solutions early on that will minimize both risk and cost for our clients, and also meet our clients’ business objectives. We develop deep relationships with our clients and know their businesses. From this foundation, if we perceive that a client may have either liability or reputational risk, we don’t hesitate to give them a frank appraisal of their case early in the process and plot a creative approach to resolving the matter.
A prospective client with a crisis calls and asks why your team should be retained. What is your answer? Our depth of experience on sensitive internal investigations, frequently involving issues at the C-suite level, gives us the experience and judgment to not only accurately evaluate the liability risk of claims, but also the reputational and financial impact of cases. Before embarking on a path of three years of scorched-earth litigation, which may ultimately be the path our client selects, we make sure we have laid out all of the implications and risks of litigating a sensitive claim. We frequently draw on our colleagues in SEC and other regulatory areas and our white-collar team to appropriately assess all of the risks going forward.
It’s a challenging litigation market, with flat or declining demand, and rate pressures. From a business perspective, what does it take for a litigation department to succeed in this environment? First, you have to listen to your clients. Really listen. What is an acceptable level of risk? What are their business objectives? You can’t give value-added advice without an understanding of at least those two things. Second, it’s important to offer something distinctive. There are other great trial lawyers out there. What unique insight can you bring about the sector, the claims, the judge, the jurisdiction, the other side, etc.? Third, you have to deliver value, no matter how important or complex the case. We’re focused on doing that through a combination of creative staffing, project management and technology.
What is the firm doing to train the next generation of litigators in your ranks? We put a real emphasis on training, with a curriculum that is focused on both legal and advisory skills. We offer almost 400 courses a year through Orrick University, and hold five intensive learning academies, where we take associates off the playing field for case study-style learning.
For litigators, we start with boot camps focused on depositions and motions practice, and then bring our more senior associates together for a trial academy. The faculty includes Orrick partners, clients, judges, professors and business coaches. Our senior litigation associates also participate in a weeklong mini-MBA program.
We also train for “teamship” skills. Stop by the war room after a day in court and you know litigation is a team sport. To help our lawyers make the transition from the individual contributor model of law school to the “teamplay” environment of litigation, we have courses taught by the winningest coach in U.S. collegiate sports.
Outside of the classroom, we believe there’s great value in shadowing senior lawyers. We give our associates bonus credit for time spent observing in the courtroom and at the office. Our associates also have an opportunity to gain early trial experience through a secondment program with the California DA’s Office.
Feedback is the most important element. This fall, we’re training our team in giving and receiving real-time feedback, and we plan to introduce a feedback app to make it a regular part of everyone’s day.
How is your department harnessing technology to work more efficiently? We find that optimal efficiency is not about technology alone. The combination of technology with the right staffing and project management is the difference-maker. We’ve deployed this combination in two Orrick services that have changed the way we litigate: Orrick Analytics and Orrick CaseStream. Both are based at our West Virginia operations center.
Orrick Analytics outperforms both the traditional law firm model and LPOs on document review. Our 30+ member team includes analyst attorneys, technologists, a statistician and project managers. We supplement them with a pool of contractors who are well known to us. We use sophisticated search and technology strategies, including machine learning, to generate savings and enhance quality by reducing human error. Culling data reduces the volume of documents that needs to be reviewed by humans by an average of 96.7 percent. This saves our clients an average of $58,000 per matter.
CaseStream is our proprietary litigation case management system. It is staffed with a team of nine project assistants who maintain case files on the system. Filings are instantly circulated to our team members and our client, enabling them to access files from anywhere, at any time. Workflows are standardized, including forms, checklists and precedents. This frees up our associates and paralegals to work on more substantive issues. We’re currently using the system to manage over 500 active cases.