Breaking Away

Jonathan Putnam was no stranger to competition when he joined Kirkland & Ellis in 1993. He beat out 500 students to graduate first in his class from Harvard Law School, won a coveted position as editor of the Harvard Law Review, and clerked for the U.S. Court of Appeals for the District of Columbia. But distinguishing himself from the other lawyers at Kirkland, he discovered, would take a lot more than fancy credentials.

Every year, Kirkland's litigation associates compete against each other in two-day trials before mock juries, with partners acting as judges. 'I was way out of my comfort zone,' says Putnam, 40. He lost his first trial. Afterward, standing in front of the big board listing all the winners and losers, Putnam experienced an uncomfortable realization. 'I had a long way to go,' he says, 'to get where I wanted to be.'

Putnam is hardly the first ambitious young lawyer to be chastened by joining a big firm full of exceptional associates. It's a daunting reality: Few litigation associates will ever lead a significant case, and fewer still will rise to the upper echelons of their firm by the age of 45. There is no single road to success as a litigator at a major law firm; if there were, it would be gridlocked. To a large extent, young litigators have to carve their own paths using creativity, resilience, drive, and luck. But there are paradigms. We've identified five archetypes for success, and ten lawyers who exemplify them. Here are their stories.

THE ENTREPRENEURS

Before he went to the U.S. Department of Justice as a deputy associate attorney general in 1999, Ethan Posner was a respected--though not celebrated-- junior partner at Washington, D.C.'s Covington & Burling. When he returned to the firm in 2001, that changed. Posner, 44, leveraged his Justice experience to build an independent private practice. Today he chairs Covington's health care group, represents the largest pharmaceutical companies in the world, and, according to his partners, boasts one of the biggest books of business at the firm.

For those of you who haven't been paying attention, bringing in major business is one of the best ways to win accolades at a big firm. Junior partners who attract their own clients, or who persuade existing clients to give the firm new work, quickly become invaluable--particularly if they build specialty practices that expand their firm's expertise and reach. Even the most successful firms need risk-taking entrepreneurs.

Posner returned to Covington from the Justice Department with a determination to build his own client base, says Covington partner Gregg Levy. 'Ethan was insistent that he could go out and carve a niche for himself,' says Levy. 'It wasn't the firm that decided we could present him as a first-chair guy to clients--it was Ethan having the confidence to assert himself.'

At the Justice Department, where Posner headed a multiagency policy group studying the proliferation of Internet drug sales, he got to know major players in the pharmaceutical industry. While he did not work directly on developing cases against the industry, he was well positioned to see that drug companies were about to be hit with a wave of litigation. By the time Posner left the department in 2001, the wave was cresting. Pharmaceutical companies faced myriad government and private suits claiming that they had paid kickbacks to physicians through fraudulent Medicare and Medicaid reimbursements; had overcharged Medicaid for prescriptions; and had filed frivolous patents to keep generic drugs off the market.

To convert his relationships with in-house pharmaceutical lawyers into business, Posner marketed himself aggressively. He wrote articles for legal journals and spoke at health industry conferences on the legality of pricing and marketing practices. His timing was so good, Posner says, that a lawyer for a major pharmaceutical company once hired him to do an internal investigation before he'd even gotten off the stage.

Early on, Posner also landed a case that raised his profile in the industry. In 2001 Posner met with the legal team at GlaxoSmithKline plc to talk generally about pricing litigation. Two months later, when the company was sued for allegedly misstating the price of drugs when seeking Medicare reimbursements, Glaxo asked Posner to defend the suit. The case ultimately mushroomed into a class action against more than 40 pharmaceutical company defendants, with billions of dollars in damages at stake. Posner not only co-led GlaxoSmithKline's defense, he also served on the five-lawyer defense strategy committee and made arguments on behalf of all the defendants before Judge Patti Saris in U.S. district court in Boston. (GlaxoSmithKline settled the case last summer for $70 million.)

Today, Posner handles government and internal investigations for a client list that includes Merck & Co. Inc., Pfizer Inc, and Schering-Plough Corp. Most recently, he obtained a deferred-prosecution agreement for InterMune Inc. in a Department of Justice and Health and Human Services investigation into alleged improper marketing of the drug Actimmune.

'His experience at the government,' says Brien O'Connor, a Ropes & Gray partner who worked with Posner on the multidistrict class action, 'and the way he has poured himself into the health care work since he came back, that's a very valuable combination.'

Like Posner, Katherine Forrest at New York's Cravath, Swaine & Moore decided to develop expertise where her firm didn't have any. In 1998, in the midst of the Internet boom, Forrest was a first-year Cravath partner who wanted to stand out even in that select company. She asked her summer associate to research every case relating to the Internet. 'It was the one open area in the law apparent to me at the time,' says Forrest, 42. The associate brought back a bulging three-inch binder.

Forrest educated herself by starting at page one of the binder's contents. 'I didn't know what the issues were until I read the cases,' Forrest says. 'I took it from there.'

In early 1999 Forrest put together a talk on how copyright law applied to the Internet and asked to present it to contacts at Time Warner Inc., a longtime Cravath client. 'For me, it was a very high-stakes presentation because I knew those were people I needed to have hire me,' says Forrest. 'I remember feeling like I could ruin my career if I screwed it up.'

She didn't. Time Warner needed expertise in Internet and copyright law, and Forrest supplied it. She was asked to give several presentations, and for months afterward, fielded phone calls from executives wanting to know more. 'We were looking to develop young litigators,' says Edward Weiss, the associate general counsel of Time Warner. 'We focused on her.'

Time Warner put her on an IP matter almost immediately. In an early test of how copyright law applied to the Internet, she sued MP3.com on behalf of the now-disbanded Warner Music Group, alleging that MP3.com had infringed Warner patents by making CDs available to its users. Forrest won summary judgment in 2000.

Since then, she has represented Time Warner and its subsidiaries in numerous copyright, technology, and antitrust matters, including the Napster and Aimster cases. Though she continues to counsel such clients as the Schneider Electric Company and HCA Inc., in antitrust matters, fully two-thirds of Forrest's time is devoted to Time Warner cases that grew from her curiosity about the Internet--and her drive to distinguish herself.

Juan Morillo didn't wait to become a partner to start hustling for clients. A born salesman, Morillo knew he had to make the most of that gift to make a mark at Sidley Austin: There were five former U.S. Supreme Court clerks in his associate class, and he wasn't one of them. 'Everyone told me I was crazy to come to Sidley, that I'd never make partner,' says Morillo, 37, who joined the firm straight out of Georgetown University Law Center. 'I had to build my own practice.'

From the beginning, Morillo looked everywhere for clients. He found the first two close to home--one through his then girlfriend (they're now married), who introduced him to the president of a small company involved in a real estate dispute; and the other through a family connection to a prominent investor caught up in an SEC investigation. (The case ended with no charges being filed.)

Morillo also built relationships with other lawyers, hoping for referrals. That work paid off in 2003, when a Mexican lawyer referred Morillo to ING North America Insurance Corporation in a highly charged case. A phosphate manufacturing plant in Mexico had been damaged in a hurricane. ING, the plant's insurer, set the damages at $10 million. The plant's owner claimed $300 million--and initiated a criminal investigation against ING and its senior management in Mexico. The executives fled the country and hired Morillo to advise them about possible extradition proceedings and recourse under international treaties. Ultimately, Mexico did not try to extradite.

ING was pleased enough with Morillo's work on the case to feed him more. The company is now a regular Sidley client, as are other Morillo clients, such as Mohawk Industries, Inc., Sorrento Lactalis, Inc., and Coronet Industries Inc. For all of them, Morillo is leading, or has already won, major class actions. According to Carter Phillips, managing partner of Sidley's D.C. office, Morillo has generated more than $5 million in revenue in each of the last three years. 'Juan will read a story in The Wall Street Journal and call the general counsel of any Fortune 500 [company],' says David Weinstein, a partner at Greenberg Traurig, who is Morillo's cocounsel in the Coronet case. 'He'll say, 'I understand you have an issue, and I'd like to come talk to you about it.' Very few people could pull it off without being over-the-top, but Juan can.'

THE TRIAL LAWYERS

One of the toughest obstacles to launching a litigation career today isn't just proving yourself in court: it's getting to court in the first place. Clients are increasingly reluctant to bear the risks of a trial--and when they do, they want a veteran to do the talking. '[It's] one of the great sadnesses of this business,' says James Quinn, head of global litigation at Weil, Gotshal & Manges. All too often, young litigators simply don't get the chance to experience what Peter Wald, the global head of litigation at Latham & Watkins, calls 'the epiphenal event.'

But for those who get to trial, it can make all the difference.

Consider the example of Jonathan Putnam, the Kirkland lawyer whose initial mock trial came as a rude awakening. After the loss, Putnam dedicated himself to sharpening his trial skills, working closely with senior Kirkland lawyers William Pratt and Donald Kempf. He got his big break in 2000, when Trisport Limited, a family-owned British manufacturer of plastic golf cleats, came looking for a defense lawyer in a bet-the-company patent infringement suit filed by its archrival. Trisport's executives, who knew Putnam because he had helped a sister company win dismissal of a patent suit, asked him to lead the case. 'They were blissfully ignorant of the opportunity they were giving me, ' says Putnam.

Putnam lost 13 pounds during the two-and-a-half-week trial in federal district court in Boston in 2000. But after two days of deliberations, the jury ruled that Trisport hadn't infringed its rival's patent--and Putnam had made his name. Over the next six years, he led six other patent trials, winning all but one. (The loss was in a 2005 jury trial for Honeywell Inc., which had claimed $30 million in damages against Hamilton Sundstran.) His biggest clients today are General Motors Corporation, Honeywell, and Expedia, Inc.

'He strikes you as a very tall Eagle Scout,' says former Honeywell litigation chief Allan Tananbaum. '[But he] knows how to go for the jugular.'

Even when young lawyers don't get a chance like Putnam's to lead a trial, they can make a lasting impression from the second seat. Success comes from taking advantage of the opportunities that arise, however they present themselves.

Daralyn Durie, 39, of Keker & Van Nest was only supposed to have a limited role in her firm's defense of Genentech, Inc., in a $300 million patent infringement suit brought by Chiron Corporation. Name partner John Keker was running the case; five months before the trial date in 2002, Durie was assigned to analyze damages.

But Keker kept giving her more duties, ultimately asking Durie to handle three key witnesses at trial. 'Daralyn was insistent about getting as much trial experience as she could, and she sacrificed to do it,' Keker says. 'She will almost always say yes, even though she is swamped.'

One of the witnesses Durie cross-examined at trial was a Chiron scientist who had scribbled notes in the margins of a patent application that supported Genentech's view of the case. But Durie knew the notes would only be admitted as evidence if she could use them to impeach the scientist's credibility. So she needed to elicit contradictory testimony from him on the stand. 'When I stood up,' Durie says, 'there was a lot of objecting by the opposing counsel. ' Harold McElhinny, a partner at Morrison & Foerster. 'It was very contentious.' In the end the notes were admitted--McElhinny came up to Durie and said, 'Good cross.'

Her work at the Genentech trial, Durie says, led to speaking engagements and calls from other prospective clients. She now represents large venture capital firms, Google Inc., and Comcast Cable Communications, Inc., in high-stakes patent cases. Most recently, she successfully led Comcast's defense in a $2.2 billion patent infringement claim in the plaintiff-friendly Eastern District of Texas.

Says McElhinny, Durie's former opposing counsel: 'The number of people I admire is extraordinarily small. Daralyn is one of the future leaders of the profession.'

THE CLIENT CULTIVATORS

Developing close relationships with important clients is another excellent way for young lawyers to establish themselves. 'Clients are always watching,' says Paul 'Mickey' Pohl, the head of Jones Day's global product liability practice group. 'If you are winning for the clients, you've outgrown the internal market, and you are heading a team. In the end, it's a market test.' A firm's partners, in other words, listen to what their clients have to say about young litigators.

Kasowitz Benson Torres & Friedman partner Aaron Marks, 38, set out to impress his firm's most important client when he was only a second-year associate. At the time, Marks's firm had just been hired to negotiate a settlement between Liggett Group Inc. (the smallest of the four U.S. tobacco companies) and five state attorneys general suing the industry. Liggett's chief executive was Bennett LeBow, a client known to be hard on his lawyers.

Marks, assigned to research early settlement drafts, won LeBow's confidence with his detailed knowledge of the tobacco industry--and his hard work. During the two weeks leading up to Liggett's landmark settlement with the five AGs in 1996, Marks drafted and redrafted around the clock, with LeBow camped out in Marks's office reading each provision. 'I got very impressed,' says LeBow, in a gravelly Southern drawl. 'I asked complicated questions and he always had good answers.'

The night the deal was finished, Marks was asked to join name partner Marc Kasowitz, LeBow, and a few Liggett executives for a celebratory dinner at the Four Seasons restaurant. Just two years out of law school, Marks realized that he had proven himself.

In 1998 LeBow tapped him to be Liggett's lead litigation counsel. Marks has now tried nine cases for Liggett, including the Justice Department's conspiracy case against all of the tobacco companies, in which Liggett was the only defendant to win a dismissal from Washington, D.C., federal district court judge Gladys Kessler.

'Aaron is an excellent trial lawyer,' says Dan Webb of Chicago-based Winston & Strawn, who has been cocounsel with Marks on two cigarette cases. 'I've spent a lot of time noodling with him on strategic issues, and he is a very effective strategist. He is superb on his feet, jurors like him, and he is very well prepared.'

And Marks got there, says Kasowitz, by focusing intensely on his client's needs. 'It didn't happen by my convincing them. I don't go to a client and say, 'We have faith in him, and you should trust me,' ' says Kasowitz. 'He became the repository of expertise and knowledge, so it was natural for the client to turn to him.'

Like Kasowitz, Richard Pepperman II, 42, secured his reputation by making himself indispensible to an important firm client in a heap of trouble. Pepperman then used the credibility he had earned to expand his career beyond that client.

Now the deputy managing partner of Sullivan & Cromwell's litigation group, Pepperman was the first associate the firm assigned to Microsoft Corporation's antitrust case when it was just a small Justice investigation in 1993. As that case exploded over the next decade, turning into the largest government antitrust case in U.S. history and spawning dozens of private class actions, Pepperman's responsibilities grew along with it. 'At each point along the way, as nicely as I could, I lobbied for a larger role,' says Pepperman.

During the first phase of the consolidated antitrust trial in 1998, Pepperman was a junior member of S&C's Microsoft team, drafting motions and handling a few cross-examinations; by the second phase--a three-month trial in 2000 to determine whether the company owed damages to nine nonsettling states and the District of Columbia--Pepperman was one of the three S&C lawyers in court every day, a leader on the defense team that persuaded Washington, D.C., federal district court judge Colleen Kollar-Kotelly that the states were not entitled to additional payments. By 2004 Pepperman was lead counsel for Microsoft in a two-month antitrust trial in state court in Minnesota. (The case ended in a mid-trial settlement.)

Pepperman's development 'was like time-lapse photography,' says William Neukom, then the head of Microsoft's legal department and now chair of Preston Gates Ellis. 'For eight years, this [litigation] was the most important thing on my desk,' Neukom says, 'and Rick became an anchor.'

Then Pepperman made a bold career decision. After the Minnesota trial, he started branching beyond Microsoft. 'It had become a bit like Groundhog Day, ' says Pepperman. 'I wanted to have a higher profile, so I walked away from my comfort area and starting doing things I had never done before. ' Pepperman is currently representing Willis Group Holdings Limited, the world's third-largest insurance carrier, in regulatory investigations and civil suits in more than 20 states; and Morgan Stanley & Co. Inc. in shareholder litigation arising from the Time Warner/AOL merger. He also regularly represents Goldman Sachs in securities litigation.

Microsoft, meanwhile, hasn't forgotten about him. When Thomas Burt, Microsoft's head of litigation, heard that Pepperman was working for other clients, he began vying to keep Pepperman's time. 'Here was this enormously talented guy who knew us and knew our issues and, boy, I wanted to keep him on our team,' says Burt. 'I'm hoping to get him back someday.'

THE PROTÉGÉS

Abby Cohen Smutny, 42, spent part of her childhood on a kibbutz near the Golan Heights in Israel. That inspired her desire to practice international dispute resolution. After law school she went to work at White & Case, one of the few U.S. firms that then had an international arbitration practice. During her first summer in the firm's Washington, D.C., office, Smutny met Charles Brower, one of the deans of the international arbitration bar.

'It may be a little corny,' says Smutny, 'but I saw his career path and thought, 'That is what I would like to do.' ' And so Smutny went about hitching her practice to Brower's.

Finding a mentor--a senior lawyer to serve as a career guide--can make all the difference for young litigators. Inside the firm, says Simpson Thacher & Bartlett litigation cochair Barry Ostrager, mentors can assure their protégés coveted assignments and support among the partnership. And in the outside market, they can have an even more significant influence: securing client contact and helping junior lawyers raise their profiles. It is tricky to balance those benefits with the danger of being eclipsed by a mentor's reputation. But as Smutny's career demonstrates, it can be done.

As a first-year associate, Smutny was inundated with general litigation assignments. Nevertheless, she knocked on Brower's office door to ask if he had any work. At first he waved her off. A few weeks later, though, he called to ask if Smutny had some time.

'The truth was, I didn't,' says Smutny, laughing. 'But I sure didn't tell him that. I knocked myself out to complete my other work and make sure he felt his assignments were the only ones I was doing.'

Smutny got her first leading role on a major project as a midlevel associate, when Brower asked her to write the opening statement in a $1 billion case for a Turkish construction company that lost a Kuwaiti hydroelectric power dam project when Iraq invaded in 1990. Smutny traveled to Turkey for interviews and mastered 54 volumes of evidence to prepare the 100-page introduction.

'If I made a mistake, [Brower] would cut me off at the knees. But I appreciated that he wasn't coddling me,' says Smutny. 'To the outside world, he was so generous and complimentary about me, it opened many doors.'

As Brower (now retired from White & Case) stepped back from his practice, Smutny moved forward. In 2001 she took over the lead role in a long-running dispute between a Czech bank and the Slovak Republic, winning an $877 million award that is still the largest ever granted by the arbitration court of the World Bank. Smutny has become, according to Barton Legum of Debevoise & Plimpton's Paris office, a recognized expert in investment treaty disputes, one of the fastest growing areas of international arbitration.

'She has great judgment,' says Brower. 'There is not a client she has been put together with who has not ended up accepting her advice.'

Unlike Brower, Sean Murphy's mentor--securities litigator James Benedict--is still in the prime of his career. Murphy's challenge has been to prove to his clients, many of whom are also Benedict's clients, that he is a first-rate litigator in his own right.

Murphy, 37, didn't pick Benedict. Benedict picked him. At the time, Benedict was head of the litigation department at Rogers & Wells (now Clifford Chance). He grew up in upstate New York, got his bachelor's degree at St. Lawrence University, and went to Albany Law School. So did Murphy. When Murphy graduated from Albany in 1994, Benedict called and suggested that he come to Rogers & Wells for an interview. After Murphy joined the firm, Benedict kept an eye on his progress.

In 2002 Benedict assigned Murphy to work on a $3 billion securities action against his longstanding client AllianceBernstein L.P., which had been sued by Florida's state pension fund for allegedly mismanaging its funds. Murphy took more depositions than any other defense lawyer in the case and cross-examined one of the state's key experts during the seven-week trial in 2005. The jury eventually dismissed all claims against Alliance and awarded Murphy's client $1.2 million in unpaid fees.

When Benedict decided to move to Milbank, Tweed, Hadley & McCloy in 2004, Murphy was the only Clifford Chance partner he invited to come along--even though they weren't working on a single case together. Since then, Murphy has developed close relationships with several other Benedict clients, including financial services heavy-hitters Merrill Lynch & Co., Inc., Fidelity Management and Research Company, and Capital Research and Management.

To get clients to see him as more than Benedict's sidekick, Murphy says, he met with them independently as often as possible. When he first started working on Fidelity matters, for instance, he travelled to Boston to see his clients several times a week. He and Benedict were handling such a volume of mutual fund cases at the time, Murphy says, that by necessity they met separately with different clients. 'I put myself as the point person on everything,' Murphy says. 'And Jim was great about it--he wanted me to be that guy.'

Now Murphy leads his own matters, recently representing Fidelity in a revenue sharing suit that was dismissed in October 2006. And when he and Benedict work together, they work as peers. This summer they won a dismissal in a $1 billion excessive fee case against American Century Investment Management, a mutual fund company.

'Often when you run into a team of lawyers, you have the lead partner and everyone else follows behind,' says Chuck Ethrington, head of litigation at American Century. 'Sean was an equal partner with Jim.'

THE OUTSIDER

Finally, there's a maverick route to big-firm litigation success: joining a firm after establishing a reputation and expertise elsewhere. E. Joshua Rosenkranz, 45, had already founded two nonprofit appellate practices when he joined Heller Ehrman's nascent Appeals & Strategy group in 2003. In 1988, after clerking for then D.C. federal circuit court judge Antonin Scalia and Supreme Court justice William Brennan, Rosenkranz cofounded the Office of the Appellate Defender, a New York-based nonprofit that handles appeals for indigent defendants. Then in 1995 he established the Brennan Center for Justice at New York University, a public interest firm that works to reform democratic institutions through litigation and public policy. So when Rosenkranz arrived at Heller Ehrman, he says, 'I already had a profile.'

During Rosenkranz's eight years as director, the Brennan Center represented clients in more than 50 cases, including three at the Supreme Court for which he was the lead brief writer. Rosenkranz's most famous case was his defense of the McCain-Feingold campaign finance reform legislation, which the Brennan Center had a hand in drafting. The legislation was upheld by the Court in 2003. 'That was the perfect arc of what we wanted the Brennan Center to be doing,' says Rosenkranz. 'Generating new ideas and getting them passed and defending them in litigation.'

But it was during that case, Rosenkranz says, that he realized he wanted to litigate full time. So he began searching for a firm to join--one where his experience would stand out. 'I didn't want to go to a firm that already [marketed] a premier appellate practice,' says Rosenkranz, 'but a firm where I could have a role in building that practice.'

Heller, which wanted to expand its Supreme Court capacity beyond its two appellate partners, was a good fit. 'He was a strategic hire for us,' says M. Patricia Thayer, cochair of Heller's intellectual property litigation practice group. 'Bringing Josh in was a move to build that group and build in New York.'

Thayer was among the first Heller partners to require Rosenkranz's services. Her client, Merck KGaA, had just lost an appeal at the Federal Circuit in a patent infringement case in June 2003, and she asked him to take a look. In 2005 Rosenkranz made his first oral argument before the Supreme Court in that case, winning 9 to 0. Later that year he appeared before the Court again, arguing pro bono that a federal law requiring law schools to give equal access to military recruiters violated the schools' First Amendment rights. (He lost that case 8 to 0.) Rosenkranz is now preparing for his third Supreme Court argument, on behalf of Pacific Gas & Electric Company. He's also handling appellate cases for Qualcomm Inc., Visa International, and Philip Morris USA Inc.

'The first motion he wrote for me was hugely significant,' says William Sailer, head of litigation at Qualcomm. The firm was fighting a $650 million breach of contract claim over the cancellation of employee stock options and hired Rosenkranz to draft summary judgment motions, which he won. 'It was clear from the very first piece of work he did that he was brilliant.'

While there is no substitute for raw intelligence, a good education, and an unquenchable appetite for hard work, the most successful young litigators at large firms have something more--an ability to inspire confidence in their partners and clients. They convey an attitude that no amount of responsibility or pressure is too much for them to handle. And they hunt for ways to prove it. As David Bernick, a senior litigator at Kirkland & Ellis points out, litigators who win the struggle for recognition are those who make the most of their opportunities. 'You can't make it to the top without things falling your way, ' Bernick says. 'But it's a rare person that can take full advantage of the things that fall their way.'

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