Lawyers at Work docx

Brendan Eich Joshua Bloch Joe Armstrong Simon Peyton Jones Peter Norvig Jamie Zawinski Brad Fitzpatrick Douglas Crockford Ken Thompson Fran Allen Bernie Cosell Donald Knuth Guy Steele Dan Ingalls L Peter Deutsch Lawyers getting the third degree—and loving it! Clare Cosslett Lawyers Anne Vladeck (Employment) Jim Sanders (Corporate Defense) Jonathan Streeter (Federal Prosecution) Ken Kopelman (Financial Services) Nandan Nelivigi (India Practice) Jacalyn Barnett (Family Law) Peri Lynne Johnson (International Law) at Work Kate Romain (Cross-Border M&A) Chris Sprigman (Antitrust/Intellectual Property) Wayne Alexander (Entertainment) Sean Delany (Nonprofit) David Whedbee (Civil Rights) Shane Kelley (Trusts & Estates) Arthur Feldman (Civil Litigation) Adam Nguyen (Corporate/Legal Technology) For your convenience Apress has placed some of the front matter material after the index. Please use the Bookmarks and Contents at a Glance links to access them. v Contents Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xi Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Chapter 1. Anne Vladeck, Employment Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Chapter 2. Jim Sanders, Corporate Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Chapter 3. Jonathan Streeter, Federal Prosecution. . . . . . . . . . . . . . . . . . . . . . . . . 37 Chapter 4. Ken Kopelman, Financial Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Chapter 5. Nandan Nelivigi, India Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Chapter 6. Jacalyn F. Barnett, Family Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Chapter 7. Peri Lynne Johnson, International Law. . . . . . . . . . . . . . . . . . . . . . . . 115 Chapter 8. Kate Romain, Cross-Border M&A . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Chapter 9. Chris Sprigman, Antitrust/Intellectual Property . . . . . . . . . . . . . . . . . . . 151 Chapter 10. Wayne Alexander, Entertainment . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 Chapter 11. Sean Delany, Nonprot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Chapter 12. David Whedbee, Civil Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 Chapter 13. Shane Kelley, Trusts & Estates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 Chapter 14. Arthur Feldman, Civil Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 Chapter 15. Adam Nguyen, Corporate/Legal Technology. . . . . . . . . . . . . . . . . . . . . . 261 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 Introduction The practice of law is not monolithic. Professional directories for the United States sort one million lawyers and 50,000 law firms into some 65 core practice areas. In Lawyers at Work, I interview fifteen lawyers in fifteen practice areas selected to be representative of the lawyering spectrum: employment law, corporate defense, criminal prosecution, financial services, international project finance, family law, international law, cross-border mergers and acquisitions, antitrust, intellectual property, entertainment, nonprofit, civil rights, trusts and estates, and civil litigation. My interviewing method has been to elicit from this ensemble of lawyers their own stories in their own words. My aim has been to get at what makes them tick: why they went into law, how they matched their personal traits and values to their chosen practice areas, how they built their careers and developed their styles of practice, how they manage the tensions between their professional and private lives, and what drives them to lawyer on. The lawyers I interviewed gave me a variety of reasons for becoming lawyers. About half of them became lawyers because of a strong family legacy in the law. One became a lawyer in spite of her family. Some found inspiring role models and others thought they would enjoy the intellectual rigor of the law. Some knew exactly what they wanted to do even before entering law school. Others stumbled into their area of expertise after leaving law school. Some of the lawyers interviewed in this book are “true believers” whose practices reflect personal ethical imperatives to redress social inequities. Sean Delany, for example, has spent his career in the area of public service representing the indigent. David Whedbee has always reached out to protect the civil rights of the least affluent. Anne Vladeck never doubted that, as an employment lawyer in her family firm, she would represent unions and employee plaintiffs against big employers, just as her parents had done. You can’t imagine a “true-believer” representing the other side without a crisis of conscience. By contrast, a “shades-of-grey” lawyer such as Jon Streeter is equally at ease prosecuting or defending the same classes of litigants. And Jim Sanders, tongue firmly in cheek, avers that moving from a public defender role to a corporate defense role can still be considered indigent defense if your client doesn’t pay. xiii Introduction xiv Some lawyers, such as Arthur Feldman, enjoy taking on a broad array of cases. Many others—like Ken Kopelman, Jacalyn Barnett, Wayne Alexander, and Shane Kelley—opt not to stray from their field of expertise. Some have taken their practice onto an international stage, like Nandan Nelivigi, Peri Lynne Johnson, and Kate Romain. Others have acquired their legal expertise in practice and then applied it to academia and authorship, like Chris Sprigman, or to entrepreneurship, like Adam Nguyen. In interviewing these fifteen lawyers, I discovered that, despite the diversity of their practices, priorities, and personalities, they all shared one trait in common. Each had taken an aggressively proactive approach to his or her career. When they saw opportunities, either professional or personal, they went for them. They took risks and followed their instincts in selecting paths that were often neither straight nor continuous. Falling in love or raising a family can redefine a professional path without derailing it. In twenty years of legal recruiting, I’ve seen the market seesaw back and forth between jobs looking for good lawyers in times of economic growth, and lawyers looking for good jobs in times of contraction. It is no secret that since 2008 law schools have been producing more lawyers than there are jobs and that the median salary for junior attorneys has dropped. For those considering law school, it is always risky to predict what the job market will look like years down the road. What prospective lawyers do know is that a shrinking market swells the ranks of unemployed and underemployed lawyers, against whom they’ll find themselves competing after law school. In the face of a weak and highly competitive market, it is imperative for prospective lawyers to chart a realistic career plan before investing in a JD. Law is no longer a fallback profession for dilettantes and temporizers. If you understand what it means to practice law and you still want to do it—do it. If not, do something else. Being a lawyer is hard work for those who love it. It is not a life for those who do not. The practitioners in this book all love their work, and all of them have weathered economic storms and market turmoil. Collectively, they prove two complementary propositions. First, lawyers can have exciting, remunerative, and personally satisfying careers. Second, before taking a shot at the first proposition, a prospective lawyer had better research deeply the practice areas that interest her, take brutally honest stock of her own temperament and abilities, and satisfy herself that the two are in perfect alignment. So, if your passion is law, take what lessons of the head and heart you can from the words of these fifteen legal practitioners who honor the legal profession and love what they do. Anne Vladeck Partner Vladeck, Waldman, Elias & Engelhard, P.C. If you believe in workers’ rights and want to practice employment law, then you are going to be on the plaintiff’s side. And if this is the path you choose, then prepare to embrace the fate of Sisyphus, condemned to push a boulder to the top of the moun- tain only to watch it inevitably roll back down. For there is an inequality of resources in plaintiff-side employment discrimination work, Anne C. Vladeck warns, such that it’s easier and more lucrative to do management-side defense. But if you are a true believer—like Vladeck, who has a strong family history of left-of-center politics and her name on the door—you would never consider representing a company that had wrong- fully red an employee. Never. Vladeck took her BA, magna cum laude, from the University of Pennsylvania and her JD from Columbia Law School. She is an adjunct faculty member at Columbia Law School and has taught at Fordham and Cardozo Law Schools. She is a trustee of the Federal Bar Foundation (secretary), a member of the Executive Committee of the Federal Bar Council Inn of Court (president-emeritus), a former member of the Association of the Bar of the City of New York Professional Discipline Committee, and a Fellow of the American College of Trial Lawyers. She has received numerous awards for her work and is a frequent speaker on employment law and litigation issues. Clare Cosslett: When was the firm of Vladeck, Waldman, Elias & Engelhard founded? Anne Vladeck: My parents started this firm together in the late 1940s for the purpose of representing unions and workers. They were on the ground floor of employment discrimination because the antidiscrimination laws began to develop 1 CHAPTER Chapter 1 | Anne Vladeck: Employment Law 2 in the sixties and thereafter. The firm’s discrimination practice has been a natural outgrowth of the labor practice. Cosslett: Did your parents have a particular political ideology that made labor law a natural area in which to practice? Vladeck: I think that labor and employment law is one of the areas where you normally do have a political bent. If you are just interested in the subject matter but don’t have a political leaning, you should do management-side work and repre- sent companies, because you earn more and you’re treated differently by some of the courts. If you believe in workers’ rights, then you’re going to be on the union side or the plaintiff side. And, more than just about any other area of law, it is political in the sense of which side you pick. There are some people who do both sides, but that’s fairly rare. They tell you in law school that you can do either side and it doesn’t matter, but I think with labor and employment law that’s wrong. Cosslett: When you say you’re treated differently by the courts when you’re representing the plaintiff side, what do you mean? Vladeck: Many judges think that employment disputes are not really worthy of federal court because the plaintiffs are individuals. Some federal judges are more interested in antitrust or corporate cases. I’m not saying this is true of all judges, but certainly some judges think that employment cases should be dealt with by separate courts, like Social Security or immigration, they should be given a dif- ferent designation. And it makes it more difficult when you have an employment case if you have a judge who, to some extent, thinks you’re wasting his time. It’s always been our belief that we have to put in papers that are better, and clearer, and more succinct, because we’re going to lose the attention of the judge. It’s not necessarily political, but some of it is also politics. Some judges really think that courts have gone too far in the antidiscrimination laws. What’s interesting, I think, is that judges are not happy to see certain claims in their courtroom, but if it becomes an issue for a friend or relative, then all of a sudden they’re the best claims ever and we should go to the Supreme Court. Cosslett: Why did you decide to go to University of Pennsylvania for college and did you know that you were going to go on to law school? Vladeck: I grew up on the Upper West Side in Manhattan and went to PS 87. I then went to a very small high school and I wanted something that was big and urban. Penn just seemed to be perfect. And it was. I thought it was great. I actually didn’t make the decision to go to law school until I walked in the door of Columbia Law School. Cosslett: What other career paths were you considering? Vladeck: When my mother was asked what I was going to do, she used to say I was going to be a doctor or a lawyer or do batik. If I had more talent, I would have been an artist. And if I could stand the sight of blood and been better at science, I would have been a doctor. Law school was a default position. Lawyers at Work 3 Cosslett: Once you had made the decision to go to law school, did you plan to join your parents’ practice? Or did you say, “I’m going to do this, but I’m going to carve my own path”? Vladeck: I don’t think either. The first firm I went to right out of law school was an environmental law firm, and it was presented as a public interest firm, with clients like the Adirondack Council. There were issues relating to what they were going to do with Whiteface Mountain for the Olympics. I thought that was perfect. They were then retained to defend a class action against a medical school. They thought I would be perfect for that. I didn’t agree. I hated the work and so, while I still liked a lot of people who were there, I left after about a year to go to what was then Frankfurt Garbus Klein & Selz, which is a First Amendment entertain- ment firm. It is now Frankfurt Kurnit Klein & Selz. Cosslett: So many lawyers start out in their career and they get to the first place, and they think, “Oh, this isn’t what I thought. I don’t like this.” And then they feel stuck. Vladeck: This was in 1979 and the market was very strong. I said to myself, “This isn’t for me,” did some exploratory work and had a job within a week. When I was hired, I was the tenth lawyer at Frankfurt Kurnit. I think there are now about sixty lawyers. I did a lot of First Amendment work. I did some of the libel work for Viking/Penguin, which was a major client. Some of it was enter- tainment litigation, where a star was in a magazine and they airbrushed out her dress. Things like that. Cosslett: You avoided the big-firm route, and I’m sure they were beating down your door. Vladeck: It never occurred to me to do that. Even during the summer, I worked as an intern for the US Attorney’s Office. I didn’t want to work at a big firm. One summer in college, I worked at a big firm proofreading legal documents. It was mind numbing. I said, “Not for me.” Cosslett: You were with Frankfurt Kurnit for about three and a half years. Did you find that you took on a lot of responsibility fairly early on? Vladeck: Yes. And it was a firm where there was some supervision, but there was also some, “Just go do it.” There were a lot of very good lawyers there, so there were people you could ask questions of who were more senior and who would help. It was very collegial. It was a great place. The firm was divided between entertainment and litigation, with litigation being the smaller practice. It was intense, but it was good intense because instead of having six layers, where I was an associate reporting to a more senior associate who reported to a more senior associate, it was one on one with the partner and the client. It was much more collaborative. So I thought it was great. There Chapter 1 | Anne Vladeck: Employment Law 4 was no time or money for a small firm to do make-work—to say, “Do a memo on this that I’ll never use.” Cosslett: Sounds as though you were pretty happy there. Why did you leave? Vladeck: My father died in the late seventies. One of my older brothers is a lawyer, and he and I were thinking it was probably a good idea to have a family member join my parents’ practice if we were going to maintain it as a family firm. We believed that our parents had created something valuable. My brother was firmly ensconced in DC. At the time, he was at Public Citizen Litigation Group and was about to argue before the Supreme Court. So it seemed to be a more natural move for me. I started here in 1982. Cosslett: How big was the firm when you joined? Vladeck: I think there were about ten to fifteen lawyers. About the same size as we are now. We had gotten to be a much larger firm doing more union- side labor work, but we don’t do very much of that anymore. We find that the employment litigation practice is really our specialty. There are a few small firms in New York that do labor work, and they tend to have certain institutional clients. Cosslett: When you joined Vladeck, you were a fifth-year associate. Your mom was a senior partner. How was it to walk in as a midlevel associate? Did your mom take you under her wing, or did she say, “You’re on your own kiddo”? Vladeck: It was very natural because she treated most of the young associates like her kids anyway. The one thing that we had a very hard time with was figuring out what I was going to call her. We had a major case when I was first here called Whittlesey v. Union Carbide. We represented an employee who sued Union Carbide under the age discrimination act. Union Carbide argued that he was a high-enough-level employee that they were able to mandatorily retire him. It’s a case that went up to the Second Circuit. We were in court on an injunc- tion motion and we were in one of those old federal court elevators. My mother, who had one speed, which was fast, was getting out of the elevator before it arrived at the floor, and all of a sudden, I screamed, “Mom!” And everybody in the elevator cracked up, even people we were just yelling at. So I ended up just calling her “Mom.” That was the only real issue we had to deal with. Cosslett: How was the Whittlesey case decided? Vladeck: We had a bench trial before Judge Pierre Leval, who’s at the Second Circuit now. He found that our client was discriminated against. And he also, for the first time in this circuit, ordered front pay instead of reinstatement because, under the circumstances, reinstatement would have been difficult for both the plaintiff and the company. It became one of the cases that’s cited all the time for the front-pay principle. Lawyers at Work 5 Cosslett: I’m very confused about mandatory retirement. Vladeck: If there’s a real partnership, you can have mandatory retirement. But if it’s not and you have employees, then you can’t because it’s unlawful for age to be the motivating factor in a decision. Contrary to what a lot of people believe, there’s no upper limit on the laws against age discrimination. You have to be over forty to be covered by the ADEA, 1 but you could be ninety and sue for discrimination. One of my partners had a sexual harassment case for someone who was in her late seventies. It was settled. Cosslett: How have you built your reputation as a litigator? Vladeck: We have a lot of contact at this firm with clients and potential clients. So I started meeting people and helping them. It’s word of mouth. The one thing that can be very satisfying is that we get a lot of referrals from the other side— from our adversaries—and even from the courts. So we have the sense that if we had left money on the table in a settlement or had not done a good job, our adversaries would not be sending us their friends or their partners. So reputa- tion is developed in part in that way and then also through speaking or teaching. There are a lot of opportunities for speaking, such as courses and events for the Practicing Law Institute, the American Law Institute Continuing Legal Education, and ABA and bar associations. I’ve also done adjunct teaching at Fordham, Columbia, and Cardozo. In teaching, you find that you learn things that can be very useful in your practice that otherwise you wouldn’t have focused on. You go back and read some of the early cases that you use but haven’t really thought about in a long time. It can be very, very helpful. Cosslett: Is your practice primarily national, or is it New York–oriented? Vladeck: It’s primarily New York area, but it is national in the sense that we do have cases in other states. If we have a lawsuit out of state, we have local counsel. We also have some lawyers who have membership in bars outside New York, but the firm’s practice is generally local. The companies, on the other hand, can be national and now with people working remotely, it’s like a law school exam: “They work in Canada, but their headquarters are in New York, but the act took place in Florida.” Cosslett: Where does jurisdiction lie? Vladeck: Your guess is as good as mine. Cosslett: Are you seeing more of a particular type of employment discrimination than you used to? 1 The Age Discrimination in Employment Act of 1967. [...]... using well water Nor can a ship hit a well-marked reef and leak all that oil with just one thing going wrong You’ve got to understand all the complexities that led to what happened Lawyers at Work And then the consequences of what happened in the aftermath You’ve got to master the life-cycle of a salmon You’ve got to know something about carcinogenicity and what chemicals do what and at what levels... somebody who’s Lawyers at Work employed and so it’s within their knowledge—which is very helpful in some ways, and in some ways it’s not People often have wrong ideas about what’s protected, what’s not, what’s acceptable activity in the workplace, and what’s not Cosslett: How different is a case that takes on front-page proportions from a case that’s lower profile? Vladeck: Even the judge was somewhat surprised... Cosslett: What is it about litigation that gives you the most satisfaction, and what’s the most difficult? Vladeck: The most satisfaction is that you have a client who needs to be heard and who is then believed One of the things you get in these cases is that the client is a gold digger, or all they want is money, or they’re making it up—so it’s very satisfying to have that kind of affirmation They... with the cases that we want to take There’s a saying that, “You can do well by doing right,” and it’s true We’re lucky that there are some equal-opportunity pigs out there who are very rich and just keep doing what comes naturally Lawyers at Work Cosslett: How does your firm work in terms of billing? Do you work on contingency? Vladeck: It totally runs the gamut We will occasionally work on a full contingency,... that’s why we continue to get that business Now, the problem with that is you’re only as good as that last case So you have to perform And it’s a pretty tough measuring stick These guys are sophisticated And they’re paying attention So if you don’t deliver, then that’s the end of it Cosslett: Can you estimate how many firms these huge companies utilize for litigation? Sanders: It depends on the nature... ultimate issue, or at least part of the ultimate issue in that case So it really goes back to taking the discovery process extremely seriously, knowing your case, and not underestimating juries Some lawyers assume that jurors are not smart and talk down to them It’s hard because there are certain things that you need jurors to understand, but you don’t want to give them the impression that you think that... people that had suffered some damages that we caused and those that did not So I apologized to those that I knew we had damaged And then I apologized again in closing And it stunned the plaintiffs’ lawyers, and they spent a lot of time in helping me out by calling into question the sincerity of my apology and my client’s apology So they kept that apology at the forefront That was not a great strategy... spill working with the state in the criminal investigation 31 32 Chapter 2 |  Jim Sanders: Corporate Defense Cosslett: Can you talk about trial preparation, depositions, and all the less glamorous jobs that need to be done in anticipation of a trial? Sanders: I hate the discovery part of civil cases because, by and large, it’s a perversion of what’s being intended by the rules regarding discovery What... throughout the state There are wonderful stories about how they swiped each other’s speeches Cosslett: Who won? Sanders: The Democrat won, but the Republican, who was my great-grandfather, ultimately became governor of Tennessee in 1920 His brother, Bob, became governor, and then a US Senator He was influential in the Progressive movement at the turn of the century My great-grandfather had ten children... a scathing dissent about how the courts were not doing what they should, and this person had been discriminated against, and that Columbia might win this decision, but at what cost? Our philosophy is that you have to take a case that you’re willing to lose If the principle is important—which it is—then you have to be willing to lose, even if it’s subjective and even if it’s harder Cosslett: What about . harder. Cosslett: What about discrimination issues relating to sexual orientation? Vladeck: There is no federal statute that prohibits it, but there are state and. case. Cosslett: What is it about litigation that gives you the most satisfaction, and what’s the most difficult? Vladeck: The most satisfaction is that you have