Trial Pros: Kirkland & Ellis' Greg Arovas
Greg Arovas is a partner at Kirkland & Ellis LLP who focuses on intellectual property litigation. Arovas has represented both plaintiffs and defendants in numerous patent and trade secret trials in district courts across the country, the U.S. International Trade Commission and in arbitrations. Arovas’ trials have spanned a wide range of industries including cases related to computer, software, communications, aerospace and medical product technologies. Arovas has been involved for several decades in litigation establishing the contours of standards essential patents in patent infringement matters. Although Arovas' cases are primarily focused on IP disputes, they frequently involve antitrust and state law causes of action. Arovas is actively involved in the day-to-day management of Kirkland’s IP practice and is a member of Kirkland’s firmwide management committee.
Q: What’s the most interesting trial you've worked on and why?
A: The most interesting trials aren’t always the biggest or highest profile cases, but those that involve the most complex set of intersecting and often competing issues. One particularly interesting recent trial is one where I led the defense of Alcatel-Lucent and several other defendants against allegations of patent infringement by Wi-Lan. This case presented interesting challenges since every one of the natural defense themes could be flipped against us because the defense group involved four large companies who were not similarly situated for many of the key issues. For example, one of the key themes involved the role of the litigation process itself, and the use of litigation as a tactical tool in a licensing program. The various defendants, however, had very different, and sometimes conflicting, views on licensing and enforcement of intellectual property rights. Any theme that worked for one defendant could be contradicted by the actions of another. The case also involved both standards essential and nonessential patents at a time when the defendants were actively involved in — and in some cases on the opposite sides of — important policy issues related to licensing and enforcement of both types of patents. For the defense themes to work, however, the defendants had to present a single unified story that was consistent with the different past and present corporate positions of each of the co-defendants.
Q: What’s the most unexpected or amusing thing you've experienced while working on a trial?
A: One reason trials are so interesting is that everyone seems to have some unexpected twist or turn. It can be new opportunities created by some decision by the other side, unexpected witness testimony or procedural issues. One trial I will never forget is a bench trial that spanned the government shutdown in 2013. The trial was scheduled to start just days before the funding deadline for the federal government. During the weeks leading up to the trial there was an endless stream of media coverage of the political maneuvering within Congress and between Congress and the White House over whether the government would get the additional funds it needed to stay open. From our workroom we could see the light on the top of the Capitol indicating when Congress was in session so we knew when deals were being negotiated late into the night. This caused endless speculation and, of course, a pool about whether the trial would start at all, start and go dark, or be saved by a last-minute deal. We ended up starting the trial, but after we finished our first witness the judge suggested we wrap up for the day because we were not likely coming back anytime soon. He was right. The shutdown started the next morning and we found ourselves sitting around the trial site day-to-day not knowing whether we had a trial to finish or should pack-up and go home. We ended up calling our next witness over a month later.
Q: What does your trial prep routine consist of?
A: Every trial on some level is unique and requires its own customized preparation plan. However, all trials have certain common threads that rise above differences in facts, witnesses and the client’s particular strategic objectives.
Finding the right story for each case is one of those key commonalities that drive trial preparation. Every trial has its own unique story that is told through the witnesses, the documents and the history of the dispute being litigated. Although the work to find the right story for each case begins long before the trial, and is shaped throughout discovery by the key facts that drive and constrain possible trial themes, many of the hard decisions about what story to tell are made in the final preparation for trial. I have always been amazed at how the complexity of pretrial discovery gives way to simple and common sense themes as trial approaches.
The final weeks before trial always involve an intense effort to repeatedly streamline, pressure test and simplify the trial story. This process involves hard decisions about how to focus the case, often by cutting theories that have merit but do not fit the single most natural story for the case. This process can be difficult, particularly in trials with multiple parties, because different parties and lawyers often have significantly different perspectives on which theories are the best for trial. But at the end of the day, hard choices need to be made because trying too many issues, or allowing the trial story to become too complex or unfocused, only weakens the case overall.
The story for each case also needs to be one that can be told by the witnesses who are available for trial to tell it. The best story is one that captures the witnesses natural perspective about what happened and why it happened. Although it is rare that any one witness will know all the relevant facts in a case, building off the witnesses historical perspectives and experiences helps the trial story come out in the most sincere and natural way possible. It also makes the witnesses jobs easier because they can present the facts they know in the context in which they learned them. But, given the extremely tight time constraints often present in civil trials, the trial time budget typically does not allow each witness to tell their individual story completely. Each witness needs to have a well-defined role in the overall story that allows the facts to unfold in an organized and consistent way, but with as little overlap as possible between witnesses. As trial approaches, the role of each witness needs to be repeatedly re-evaluated so that each witness knows their part in the trial story and advances the case themes without adding unnecessary complexity or detail.
Q: If you could give just one piece of advice to a lawyer on the eve of their first trial, what would it be?
A: Be yourself. When I first started practicing I spent lots of time reading trial transcripts and watching trials involving well-known lawyers all around the country in both my area of expertise and in other fields. This was an incredible learning experience. However, one of the things that I didn’t expect to learn was that there were so many different and sometimes even contradictory approaches that were successful for different lawyers in different cases. Each lawyer had his or her own style. There is no one right way to try a case.
It is also important to remember that while the trial is about the parties and the witnesses, the lawyer is also a key part of the trial presentation. In some ways, in every trial both the parties and the lawyers are on trial. Both have to be believed and trusted. The approach that is going to come across as the most sincere and believable is the one that is the most natural. So, while there are many talented lawyers practicing around the country who can be role models, the most effective style and approach will be the one that works with who you are.
Q: Name a trial attorney, outside your own firm, who has impressed you and tell us why.
A: I have been privileged over the course of my career to see so many talented lawyers that it is hard to pick just one. One attorney who stands out in my mind is Al Fey. My area of expertise, like Al’s, is intellectual property. These cases necessarily have a technical side that has to be part of the trial presentation. What always amazed me about Al was his ability to find a simple, understandable and human side of every case no matter how technical the subject matter and issues were that needed to be tried. Every trial was reduced to a few simple questions and themes that everyone could understand no matter what background and experience they brought into the case. Al also understood that winning a trial is a team effort. He always looked for ways to make to make the team stronger, both by supporting the lawyers around him and creating a positive environment no matter how challenging the facts were for the case being tried.
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