Becoming a savvy commercial litigator requires more than a mastery of courtroom tactics. “We consider all tools available to secure our clients’ objectives,” as Weil’s skilled partners explain…
Chambers Associate: The term “commercial” litigation can mean a lot of different things. How would you describe Weil’s commercial litigation practice?
Luna Barrington, partner: In simplest terms, we advise on resolving business disputes that arise from our clients’ most important relationships – with customers, competitors, suppliers, partners, employees, and occasionally shareholders and regulators. The subject of these disputes varies, and that’s why our practices and areas of expertise are broad. But, each of these disputes is a material event that can positively or negatively impact a client’s financial situation, reputation, intellectual property, competitive advantage, or even viability as a going concern. Every attorney on our team understands the markets in which our clients operate, so that we are best positioned to help achieve a commercially viable resolution.
Bambo Obaro, partner: For those reasons, our practices are typically split between trying and litigating cases and negotiating with adversaries and their clients. Our top priority is to identify the best outcome for our clients and ascertain how to arrive at that endpoint. Sometimes, pre-litigation posturing and negotiations are the best route. Other times, the client is best served by developing leverage through the litigation process. In many situations, we take the long view by trying the dispute to verdict or decision before a judge, jury, or arbitration panel, and positioning the client for success on appeal.
“Sometimes, pre-litigation posturing and negotiations are the best route. Other times, the client is best served by developing leverage through the litigation process.”
Jessica L. Falk, partner: Our practice involves assessing the client’s options, selecting the best path for defending or advancing our clients’ interests, and then working within the law and the facts to achieve the desired outcome. This requires depth and breadth of experience, and our team delivers at all levels of the group. For example, each of Bambo, Luna, and I have handled major restructuring-related disputes. Bambo focuses on class actions and trade secrets matters, often implicating California’s unique consumer and employee protection laws. Luna has considerable experience defending and prosecuting competitor and customer antitrust cases. I do a lot of work on commercial, IP and licensing litigation. We all have meaningful trial experience, which is really the signature of Weil’s practice.
CA: How do Weil partners and associates collaborate with each other and clients on commercial litigation matters? How are tasks and responsibilities usually divided up?
BO: Our commercial litigation teams place tremendous value on communication and transparency, so that all team members – including our clients – understand the strategy and plan of action for a matter as it proceeds. This goes a long way toward engendering collaboration and a shared interest in obtaining a successful result. Additionally, Weil tends to staff commercial litigation matters leanly, typically with 1-2 partners, a few counsel, and 3-4 associates (more if the matter is particularly complex). This relatively streamlined organization means that all members of the team are seen and heard and play meaningful roles. In my opinion, based on my experience working with other law firms, Weil associates enjoy considerably more access to senior partners on a regular basis – and that is not even counting mentoring and other programs the firm has implemented to build professional relationships outside of client matters.
JF: Partners and associates constantly share feedback so that we deploy the very best resources for each task. There is no set roadmap for the division of labor, and partners are nimble and experienced – they can use any particular matter to help develop and educate the firm’s associates. It all depends on the nature of the matter, but in my experience as an associate and a partner, junior associates may perform research and diligence, prepare memos, and draft motions. They also regularly present their work to the internal team and to clients. Mid-level and senior associates may play a significant role in revising and finalizing drafts of motions and court memorandums, engaging with counsel for adversaries on certain aspects of the case, preparing for and taking depositions, and handling other important parts of discovery. Weil associates also regularly have opportunities to contribute their talents to the highest levels of trial preparation, trial and appeal.
CA: What are some of the most significant opportunities for attorneys working on these matters?
JF: With more than 130 attorneys from around the world comprising Weil’s complex commercial litigation practice, there is massive potential for collaborating closely and developing relationships that deepen over time. The scope, complexity and variety of assignments – as well as the range of industries served – require our colleagues to constantly share information, skills, and perspectives. That means that even the most junior of team members have a chance to contribute in meaningful ways.
LB: Further, we are confident about taking our matters to trial – so every associate gains exposure to some of the best and most trial-ready minds working in today’s risk-averse legal environment. This level of immersion and interaction sharpens your judgment and shapes you into a better strategist and advisor, no matter what direction your career takes over the long run.
“The scope, complexity and variety of assignments – as well as the range of industries served – require our colleagues to constantly share information, skills, and perspectives.”
BO: Finally, our CCL practice truly operates at the heart of the firm. We work closely with our corporate and private equity colleagues on litigation analysis and risk assessments as part of the firm’s deal work, we litigate and try matters arising in bankruptcy proceedings, and we play lead roles in disputes arising out of IP transactions and agreements. This means that associates are regularly interfacing with partners from across the firm, in office around the globe – important opportunities to deepen their knowledge and work experience.
CA: What have been the most interesting trends in commercial litigation over the past year?
LB: We have started to witness jury and bench trials get back to their pre-pandemic frequency. We are fascinated and encouraged by the innovations made by courts, judges, and advocates during a challenging few years, but are very happy to be able to represent our clients vigorously in the courtroom with everyone present.
BO: All told, I think we have seen an increase in the amount of high-stakes litigation getting filed, owing in part to business disputes that arose during the height of the pandemic, which are still just only now being brought to court.
CA: What changes do you foresee impacting the commercial litigation practice in the future?
JF: Clients will continue to embrace remote depositions. If the documents are shipped in advance so that the witness may look at the hard copy, remote depositions can proceed seamlessly. Especially in more remote geographic locations, this reduces travel and other costs for the client.
“Jury and bench trials are picking up in frequency again after weathering the last year. This is a very important development for our clients and for the U.S. judicial system more broadly.”
LB: I’m intrigued by the increased use of artificial intelligence and other tools in resource-intensive aspects of the litigation process, such as discovery. These tools will most certainly continue to change how clients and firms shape litigation strategy, and I am hopeful that they will make all of us better lawyers and counselors.
CA: Can you describe the most interesting commercial litigation matter you have worked on and your role on it?
BO: Far and away is my recent role as co-lead trial counsel for Meta Platforms. In July 2022, the Federal Trade Commission sued to enjoin Meta’s acquisition of virtual reality developer Within Unlimited, which took place over just a few months of expedited proceedings leading up to trial in December. This was a novel merger challenge for the FTC, and we had a chance to make a major impact on the agency’s regulatory priorities, well beyond just what was at stake for our client. Our cross-practice and cross-office team prepared arduously for the trial, which was seven days and consisted of about 36 hours of court proceedings. I examined two of the key witnesses, including one of the Meta executives and a critical third party witness, whose testimony ultimately proved pivotal in the judge’s post-trial decision. In it, he affirmed that Courts will put the Government to its proof when it seeks to challenge a transaction in court. It’s by far one of the most significant commercial litigation matters that I have worked to date and one that will have a lasting impact in the tech sector and beyond.
JF: We represented The Walt Disney Company after it purchased Marvel Entertainment and affiliated entities in a dispute with Jack Kirby. As background, Jack Kirby was a notable comic book artist who worked for Marvel for decades, including during the late 1950s and early 1960s when The Fantastic Four, Iron Man, and The X-Men (among others) were created. Kirby’s heirs sought to terminate the copyrights to those and other characters that they alleged were developed by Kirby. We brought litigation in the S.D.N.Y., seeking a judgment that Kirby’s contributions were made as “works for hire” and therefore were not subject to the termination right. Our team obtained testimony from comic icons, including the legendary Stan Lee. We also researched comic book articles and interviews from prior decades to learn about Marvel’s creative process. Ultimately, we won before the district court and the Second Circuit. I was the junior associate on the case and the “keeper” of the factual record. You don’t usually see stacks of Marvel comic books piled into a lawyer’s office!
“The experience was particularly memorable because of the theatrics involved in blurting out an objection from the back of a courtroom. I thought things like that only happened in movies.”
LB: We were retained on the eve of trial in a certified antitrust class action brought against our client, C&S Wholesale Grocers – one of the largest private companies in the U.S. These cases rarely get tried, and the stakes were significant – potential treble damages of nearly $1B. Plaintiffs claimed that C&S and a competitor (which settled prior to trial, leaving our client potentially on the hook for all damages), entered into a conspiracy to allocate certain geographic markets. We were meticulous in our preparations for trial, which required us to master an enormous litigation and factual record dating back eight years. Two of my key roles were to prepare our client’s chairman for his trial testimony, and lead the cross-examination of the class members’ liability and damages expert – both of which proved to be pivotal in convincing the jury that our client was credible and did not engage in the alleged conduct. Ultimately, we won a complete defense verdict after the jury deliberated for less than an hour! It was extremely fast-paced from start to finish.
CA: What can commercial litigation associates expect in terms of work/life balance?
JF: There’s always some degree of unpredictability, given a potential TRO or a new case – but typically you’ll have some advance notice of when things will be hectic. Court deadlines, deposition dates and other events are usually set in advance and help make it easier to make plans and achieve some balance for your life outside of the firm.
“We also researched comic book articles and interviews from prior decades to learn about Marvel’s creative process.”
BO: We are in a service business, so sometimes client demands will dictate schedules. That said, I believe that commercial litigators enjoy a range of responsibilities, roles, and projects because of the breadth of our work, which is important balance within the workplace. That is very appealing.
LB: Generally speaking, I’ve found that the work demands are manageable if you prioritize, plan ahead, and remain mindful of the potential for interruption. You also have to find a way to blend aspects of work and life when possible; professional development activities, including bar association events and panels, can be excellent ways to accomplish this.
CA: What talents and abilities help an attorney succeed at commercial litigation? How have you developed those skills at Weil?
LB: Look for opportunities to develop your practical litigation and writing skills. Also look out for mentors who may provide constructive feedback about your work, writing, and courtroom presence, as well as how to best focus your practice. My mentors have really helped me improve my craft and to find ways to build important relationships with other partners and clients.
“Court deadlines, deposition dates and other events are usually set in advance and help make it easier to make plans and achieve some balance for your life outside of the firm.”
BO: I always advise more junior attorneys to take ownership of the projects they work on and to be proactive. While the learning curve in a law firm can be quite steep, it is important for more junior attorneys to give their best effort. There are many ways that junior attorneys can make significant contributions to a project. Associates who recognize this early on tend to be more successful.
JF: You must see all sides of your client’s case and not just the strengths. By spotting issues and preparing to combat potential weaknesses in your client’s position, you help prepare your legal arguments and the potential trial witnesses who may have to deal with factual issues before the judge/jury.
CA: What can students do to prepare themselves for a career in commercial litigation? What were the most beneficial law school classes you took and the most useful skills you developed before your started practicing?
BO: Take advantage of clinics, moot court, trial advocacy programs and other opportunities to gain practical experience.
JF: I interned at a small law firm during high school and college. This provided a helpful, up-close perspective on the different roles within a firm – from receptionist to senior partner. This experience also made me appreciate the vast resources at a big law firm and how those can be applied to a massive commercial litigation. As far as law school classes, I’d recommend evidence as well as any classes or clinics that push you to think on your feet. I participated in pre-trial advocacy and trial advocacy seminars, as well as a course on taking and defending depositions.
LB: If you have an opportunity to clerk, definitely pursue it. Clerkships expose you to a wide variety of cases and require you to learn new areas of the law on the fly. There’s no better way to broaden your experience, hone your writing capabilities, and develop generalist credentials.
“You must see all sides of your client’s case and not just the strengths. By spotting issues and preparing to combat potential weaknesses in your client’s position, you help prepare your legal arguments and the potential trial witnesses who may have to deal with factual issues before the judge/jury.”
CA: A client calls and asks you to pitch your distinctive capabilities for a potential dispute. What would you say makes Weil’s commercial litigation practice unique?
BO: Clients turn to Weil because we offer a seamless, full-service trial practice that can litigate and try the case from start to finish. This provides a number of benefits to our clients. First, there’s no need for them to hire additional trial specialists. Second, we send a message to adversaries that our client is prepared to – and will – try the case without hesitation. Third, we approach all pre-trial aspects of the case with a view towards ultimately trying the matter, a guiding principle that typically results in a more efficient, business-like approach to litigation. And, of course, our team offers meaningful trial experience at all levels, including junior associates.
“Our teams become immersed in our clients’ businesses by learning as much as possible about their objectives, market dynamics, and competitive landscape.”
JF: Weil offers considerable subject-matter experience inside and outside of the litigation department, which allows our commercial litigation teams to tackle practically any issue and enhances our ability to deliver creative solutions. We routinely collaborate with attorneys across the firm’s restructuring, corporate governance, employment, white collar, environmental, appeals and strategic counseling, and IP practices, among others – to anticipate issues and provide our clients with advice that is strategic, pragmatic and sensitive to risks.
LB: We are not litigation-myopic. We like to litigate and try cases, but we consider all tools available to secure our clients’ objectives. Our teams become immersed in our clients’ businesses by learning as much as possible about their objectives, market dynamics, and competitive landscape. We work closely with clients to deploy a dispute resolution strategy that is commensurate with their goals and based on this understanding. For as many trials as I’ve handled, there’s been as many mediations, strategic negotiations, and renewed/improved contracts, of which I’m equally proud.
