Kirkland partner Mike Jones spoke with The Am Law Litigation Daily regarding a high-profile case that involved courtroom advocacy sharpened by presentations made to newspaper editorial boards and legislators.
Maryland’s four public historically black colleges and universities are on the doorstep of a historic settlement that will provide $577 million to help the schools build unique, high-demand academic programs.
The deal, which is poised to get veto-proof sign off from the Maryland legislature in the coming weeks, comes after nearly a dozen years of pro bono legal work by Kirkland & Ellis and the Lawyers’ Committee for Civil Rights Under Law working on behalf of a group of the schools’ alumni. The outcome is all the more impressive when you consider that the state initially proposed spending about $50 million on marketing, campus multicultural centers and scholarships to settle the case and Republican Governor Larry Hogan made a “final offer” of $200 million in 2019. It’s also the only case of its kind undertaken without the backing of the U.S. Department of Justice.
Kirkland’s Mike Jones said the case is just what President John Kennedy had in mind when he invited the leaders of the major law firms to the White House to encourage them to get involved with civil rights litigation, spurring the founding of the Lawyers’ Committee. Jones said that Kennedy knew “that sometimes when the government didn’t act, these organizations and firms have the resources and talent to make a real difference.”
Over the course of the past 11 years, Kirkland lawyers led by Jones and of counsel Karen Walker have dedicated more than 25,000 hours to the case. At an initial six-week trial up against lawyers from Venable and the state attorney general’s office, they proved that the state intentionally gave HBCUs second-class treatment by duplicating their academic programs at traditionally majority white schools. The firm’s work also included a seven-week trial on remedies with Zuckerman Spaeder working alongside the AG’s office, a trip to the Fourth Circuit Court of Appeals, three legislative hearings, and four multi-week mediations. That awe-inspiring tally of hours doesn’t even count the nearly 12,000 hours of time Kirkland’s legal assistants have put in on the case.
The Litigation Daily last week caught up with Jones, Kirkland’s first Black partner who himself is an alum of Dillard University, an HBCU in New Orleans. Despite decades of prior high-profile cases, Jones says the HBCU case is the only one his three kids follow and want to talk to him about. His daughter graduated from Spelman College in Atlanta and he has a son currently attending Morehouse College, also in Atlanta. Jones said that beyond all the courtroom advocacy, his team had a “three-pronged” strategy of engaging with the media, the schools’ alumni, and the state legislature to help drive a positive outcome for the plaintiffs.
“I’d say that some of the most intense advocacy that we did was outside of the courtroom in terms of discussions with the editorial boards who had been listening to the state for a very long time and did not understand the case and were frankly skeptical of the case,” Jones said. He recalled spending hours on the phone with an editor from the Baltimore Sun the night before his opening statement “disabusing them of some of the things they heard from the state.” He said it was vital to help editorial boards across the state understand the case as it was developing. The boards, in turn, became “very, very strong advocates” for resolving the case in the plaintiffs’ favor, he said. The media advocacy had the added benefit of laying the groundwork for the legislature to become involved.
With alumni, he said it was important to keep those interested in the case motivated. That involved rallies at the schools and at the state capitol. Jones said the galleries of the courtroom were packed with alumni at both trials and at the court of appeals. “The importance of the case, the level of the interest in the case was noted both by the district court judge and the Fourth Circuit,” he said. “That was a critical component.”
And while engaging with the legislature was always part of the strategy, Jones said that particular element really came to the forefront after legislators voted in 2017 to authorize Maryland’s attorney general to sue the Trump administration without the governor’s approval. Around the same time the makeup of the legislature began to shift and the Legislative Black Caucus, with whom the plaintiffs have been engaging for the past four or five years, took on more prominence. “Those things aligned for us to really put the pedal to the metal on the legislative component,” he said.
“To me, the overall lesson is don’t lose sight of the importance of public advocacy and the press inquiries and being able to tell the story both in court, on appeal, and to editorial boards,” he said.
At the same time, Jones said that speaking to reporters and editors who weren’t familiar with the civil rights precedent the case built on, the U.S. Supreme Court’s 1992 Fordice v. United States decision, helped hone his overall message. “Having to explain the issue to laypeople and to speak at public rallies, it really forces you to simplify and sort of hone the message,” he said.
“It worked the other way around, too. We used some of the courtroom advocacy to sharpen some of our public points,” he said.
In particular, Jones said that while lawyers and judges understand “arguing in the alternative” and accept it as the norm, the sorts of arguments that the state’s lawyers were making, which seemed contradictory on their face, made the state’s positions sound “wishy-washy” to the public and legislators. “We were able to really point out some of the inconsistencies in the state’s argument and position that really ultimately helped me with the public and the legislators as well,” he said.