Kirkland partner Sierra Elizabeth spoke with The Recorder about the impact of COVID-19 on trials and her practice.
As courthouses ease into reopening, Sierra Elizabeth has returned to the courtroom at mock pace, already clocking two lengthy jury trials this summer.
In the first trial, the Kirkland & Ellis partner helped win a defense verdict in May in the second bellwether trial over 3M’s combat earplugs. Then, in June, she was part of a team that won a $30 million trade secrets verdict for LivePerson Inc. in a trial against 7.ai.
The trials, both in U.S. district courts, couldn’t have been in two more different places dealing with the COVID-19 pandemic: Oakland, California, and Pensacola, Florida.
“I love to try cases,” said Elizabeth, who is in Los Angeles. She is planning for more trials in the coming months, even if it means more masks as COVID-19 cases rise. “If they tell me that’s the only way to try cases, and put a mask on, I’ll do it.”
Not only does she enjoy trials, but she likes to look good in them. Elizabeth founded a company called SuitKits that provides custom suits to female professionals. She talked about the pandemic’s impact on fashion in the legal profession.
This interview has been edited for length and clarity.
Law.com: What was your biggest lesson in 2020?
Sierra Elizabeth: That flexibility and being amenable to change is OK. And I say that because I’m in the legal industry. And a lot of what we do is based on history and precedent, and we tend to do things like they’ve always been done. And I think going forward, I will certainly take that with me and not be so stuck in what has always been done.
Law.com: What’s your biggest concern?
SE: My biggest concern going forward is the burden on our court system, and being able to get through the dockets that have such huge backlogs. From a personal perspective, I’m very concerned for the criminal system especially because of that, and getting people due process and making sure there is justice. With respect to what I do, I can just say, I’ve never worked this much in my career. There is just so much to do now because of both the interesting legal issues and problems that our clients and companies have faced because of the pandemic, and also because of this delay that we encountered in the court system. I’m a little bit nervous of how we get through it all, and how we get through it all effectively and efficiently, and how that doesn’t change outcomes.
Law.com: Are there trial delays in your cases?
SE: Because of what I do, which is essentially the biggest civil litigation that’s happening across the country, representing Fortune 1 to 10 companies, I personally do not think I will be put to the back of the line, or be affected by the backlog as much as my colleagues, potentially.
My 3M matter is the largest MDL in federal court history, so our judge is very focused on our claims and our matters. But I certainly have colleagues who have cases and trials that have been put off for effectively two years and no confirmed trial date in the future because nobody knows when it will happen.
Law.com: What was it like handling a jury trial during a pandemic?
SE: It was so interesting.
In Florida, I was actually surprised because during jury selection, for example, I expected for people to get out of jury selection like they normally do and not get picked for our jury because of the pandemic. To their credit, the jury pool there was very eager to sit for our case. During the first trial we had in Florida, masks were mandatory. It was in May. And so having to try a case with a mask on, with jurors who were masked, and you couldn’t see their expressions as you normally would, was very odd, and it felt like you were in the Twilight Zone a bit. It was also kind of an adjustment because it was uncomfortable and awkward. Part of what we do as trial lawyers is express ourselves and our emotions through our words and body language. Eliminating that because of just the mask requirement was a very interesting dynamic we had to adjust to.
In the trial I was lead counsel on, in late May, we did not have masks, and it felt kind of like normal again.
In Oakland, by comparison, there were still masks, even though it was later in the year and the pandemic had subsided. Masks were still mandatory, there were Plexiglas stations all over the place, they were sanitizing all the desks and the witness stands and podiums all the time. There was a limit on how many lawyers could be in the courtroom at a time.
That was very limiting, and we had to come up with ways to be effective as a team to deal with that barrier.
Law.com: You have more trials scheduled this year. Are you concerned about more mask mandates in courthouses and rising COVID-19 cases?
SE: I don’t think that any new guidelines will be any more stringent than what I already have gone through this past year. I feel much more prepared for it—for all the different possibilities. It was nice to get rid of the mask and Plexiglas and social distancing, but I love to try cases. If they tell me that’s the only way to try cases, and put a mask on, I’ll do it.
Law.com: I have to ask about your clothing line, SuitKits. Do you think the pandemic changed how lawyers dress for the courtroom?
SE: I don’t see in the near future there being such a relaxation of the dress code—at least what I do in court—that suits will no longer be necessary and exist. That being said, the pandemic certainly revived people’s love and desire to be comfortable while at work, especially since we weren’t in the office, and I think that will certainly change going forward.
I don’t think the suit is dead yet. I love a great suit, which is part of the reason I started my company, SuitKits, because I didn’t think it was adequately addressed in the market.
Law.com: What’s wrong with suits that are out there?
SE: I’m a lawyer. I go to court all the time. I try cases, I need a suit. Unfortunately, for me, if I were to walk into a department store, and try on suits, they don’t fit me well. I’m filling in that gap in the market, and responding to kind of the new wave of the future, which is ordering online and being able to customize, and allowing people to express their own unique personality and creativity. I just thought it was a very good way to fill in a need I had.
Law.com: What other trends are you seeing right now?
SE: One trend that I don’t like that immediately came to mind was, and we might see more because of the backlog issue, is that in my practice in products liability, there are a lot of cases getting consolidated—so, multi-plaintiff cases against one or more defendants. For many reasons, and all the reasons and statistics bear this out, the more plaintiffs there are in the case, the worse it is for the defense.
Law.com: What’s going on right now that surprises you?
SE: In my mind, because we’ve gone through this year and a half-plus doing remote meetings and remote hearings, and remote trials in some instances, I thought for a very long time in the future we would be on this remote track, so to speak. And I will tell you, I’ve had all my clients saying they want in-person meetings somewhere. I’ve already flown to a strategy meeting in Chicago for another case. My associates are begging me to go to in-person happy hours and meet them at the office. And maybe that’s because we’ve all been locked down so long. People are stir-crazy, and I think people are ready to get back in person.