Kirkland partner Jim Hurst spoke with The Am Law Litigation Daily about how he and Kirkland have navigated trial work amid the coronavirus pandemic.
I usually associate the term “trial firm” with a certain swagger and, at least for our little slice of the world, a sense of cool.
In this high stakes portion of the profession where so few cases actually get to trial, the handful of firms that handle more than their fair share have real bragging rights. They get the crosses, closings, and breath-holding moments before verdicts we all grew up watching on television—or at least their real-world equivalents.
But this spring, with the global pandemic bringing a halt to virtually all scheduled trials in the U.S., trial firms got accustomed to a much less sexy term: Continued.
That phenomenon—having some of the most coveted, exciting professional work in the litigation world suddenly vanish, or at least delayed—led me to reach out to leaders at three of the firms that immediately come to mind when I think of trial firms. Jim Hurst at Kirkland & Ellis, John Quinn at Quinn Emanuel Urquhart & Sullivan, and Kalpana Srinivasan at Susman Godfrey all graciously took my calls and talked about how they and their firms have been navigating this period.
All three marveled at the adaptability that their firms and the courts have shown to shift to working remotely and keeping dockets moving. They also reported that trial work and in-person proceedings are starting to tick back up in some venues.
Kirkland’s Hurst, the first of the three I spoke with, said that even now his firm had “much, much lower volume than normal” of trial work. As of our conversation late last month, Kirkland as a whole had handled eight trials since mid-March: Four of them private arbitrations, four of them conducted remotely, and none in front of juries. The firm is starting to see an uptick in trial dates in the near term, but Hurst said there’s still the possibility of further continuations.
On a personal note, Hurst, who last tried a case late last year, had four trial dates spread across April, May and August pulled off the calendar. Three of those cases settled and the other was decided favorably on summary judgment. He doesn’t have another firm trial date until January, meaning that 2020 will likely be his first year in about two decades without a trial.
“It’s a pretty big dry spell for me,” Hurst says. “I absolutely miss it. It’s what I really love doing. It’s my favorite part of being a lawyer. But things have been taking its place.”
Hurst says that the lack of trial work has meant that he has been called in to handle more important depositions than he would normally. “For really important deps, we still make it a point to meet with witnesses in person, with masks, outside, with social distancing. So it’s all safe,” Hurst says. “There is a material advantage to being in person with a witness.”
Great minds think alike when it comes to defending depositions, it appears. When I spoke to John Quinn late last month he was gearing up for trips to San Francisco, London and Boston to defend depositions in person. He said that March, April and May was a period of transition for the firm with a number of trials being pushed off. But he added that June, July and August were the firm’s busiest of the year so far, and busier than the same period last year.
“Everybody was thrown for a loop to start with, but I think we have adapted, the profession has adapted, the judiciary has adapted and learned a lot about technology-enabled litigation and trial,” Quinn says. “We’ve learned some things about how to do things cost-effectively that can’t be unlearned—won’t be unlearned. Even when this passes, there are going to be some permanent changes that come out of this,” he says.
The pandemic has seen Quinn Emanuel picking up roles in nearly every big Delaware case involving a busted deal, including a case where Quinn himself represents SoftBank Vision Fund in litigation related to its canceled deal to buy a stake in WeWork’s corporate parent which is currently set for trial in January. Unlike many of the Wall Street firms who have traditionally grabbed the top roles in litigation over deals-gone-sideways, Quinn does not have a mergers and acquisitions practice.
“I think there’s an increasing awareness that it’s sometimes not the best decision to use the firm that did the deal to do the litigation that may arise out of the deal,” Quinn says. “The lawyers can be too close to the deal: They can be witnesses. It might, in some cases, be harder to get an objective view which is what you need to have.”
Susman Godfrey’s Srinivasan, meanwhile, says that the decreased amount of time that she and her partners have spent traveling has had some unexpected benefits. “We’ve had the opportunity to really dig and vet a lot of new matters on the plaintiff side,” she said. She also said that some virtual court appearances, where judges and the lawyers can read each others’ expressions and see each others’ faces has made some hearings more conversational—particularly leadership pitches in class actions.
“The court gets a sense of who you are and how you’re going to lead the team and what the team looks like,” Srinivasan says. “To me that’s an upside.”
Srinivasan took on the managing partner role at the firm this summer after firm founder Steve Susman died of complications from a bicycle accident and contracted COVID-19 while recovering. In a sentiment that echoes how many people have had to navigate loss during this time, Srinivasan said Susman’s death has been especially hard for her and her partners “in the broader environment where we can’t get together to commemorate the role he’s played in our firm and in the profession.”
That said, Srinivasan said that trial work is beginning to pick up this fall and small teams of Susman lawyers are coming together with precautions. “It might not be quite at the same volume as it was before, but we are in a different place than we were in April and May,” Srinivasan says. She added that the firm brought in an outside hygienist to consult on the logistics of getting the firm’s trial teams safely to and from the places where trials are moving forward. The firm is shipping PPE and sanitation equipment to team members’ homes before they travel. Firm leaders want to know travel arrangements, hotel layouts, where trial war rooms are going to be, what transportation to-and-from the courthouse will look like, and where witness preparation will occur to make sure there’s enough space for everyone to remain as safe as possible.
“Those details which we have standard game plans for, we are revisiting and basically every team is giving us a trial plan on logistics,” Srinivasan says. “Normally they would just sort out themselves … There’s a whole other layer that goes into it, and everybody is putting a lot into it.”