Q&A With Kirkland's Claudia Ray

Claudia Ray is a partner in the New York office of Kirkland & Ellis LLP. Her practice focuses on copyright, trademark and Internet-related litigation in federal and state courts, before the Trademark Trial and Appeal Board, and in international and domestic arbitration proceedings on behalf of clients in a wide range of industries, including entertainment and media, financial services, technology and consumer products.

Ray also frequently provides prelitigation counseling on intellectual property issues as well as advising clients in connection with their overall IP protection and brand-building strategies and on IP issues in the context of complex transactional matters.

Q: What is the most challenging lawsuit you have worked on and why?

A: Warner Bros. v. RDR Books. We represented author J. K. Rowling and Warner Bros. against RDR Books, a publisher who planned to release what it called a "lexicon" that copied and closely paraphrased significant amounts of text from Ms. Rowling's seven Harry Potter novels and two companion books that she had written to raise money for charity.

Our clients moved for a preliminary injunction, but the court, on five weeks' notice, decided to convert the oral argument on the motion to a full trial. During that five-week period we had to produce more than 10 years' worth of documents about our clients' efforts to police their rights in the Harry Potter properties, review the defendant's documents about its book, and prepare our witnesses and exhibits while at the same time dealing with the extensive publicity that the case generated.

Most commentators confidently predicted that we could not possibly win the case by asserting what was viewed as a strong fair use defense to our clients' copyright infringement claims. The fact that the defendant was represented by the Stanford Fair Use Project, in addition to a local New York attorney, was viewed as supporting that conclusion.

In fact, we confounded the convention wisdom and prevailed after a bench trial, with the court concluding that the defendant's book took too much material from Ms. Rowling's books, and was insufficiently transformative.

Q: Describe your trial preparation routine.

A: I think that trial preparation really starts right at the start of a case. Even before drafting a pleading, I look for a narrative framework that will let me explain my client's position in a clear, compelling way that will resonate with a trier of fact who may not have any familiarity with the factual or legal issues presented in the case. When it comes time to try a case, I focus on fine-tuning that narrative, using the evidence we have collected during discovery to put flesh on the bones of the narrative.

Q: Name a judge who keeps you on your toes and explain how.

A: I have had the privilege of appearing before many fine jurists, at both the trial and appellate levels, so picking just one judge is very difficult. One who does stand out is Judge Naomi Reice Buchwald of the Southern District of New York. I appeared before her when she was a magistrate and again after she became a district judge. Judge Buchwald is smart and very experienced, so you really have to be on your toes when you appear before her, but that also makes arguing before her enjoyable.

Q: Name a litigator you fear going up against in court and explain why.

A: As a junior lawyer, I had the privilege of working with Martin Glenn, who is now a bankruptcy judge in the Southern District of New York. He is a very smart, very experienced litigator who was often asked to help colleagues prepare for major arguments because he would think of the toughest questions. I would like to think that having benefitted from his guidance and mentorship, I could give him a run for his money if we ever faced off in court, but I am also glad never to have been put in that position.

Q: Tell us about a mistake you made early in your career and what you learned from it.

A: When I was a junior associate, I worked on a case where I was tasked with overseeing discovery. My responsibilities included meeting and conferring with opposing counsel about scheduling depositions. At one point I reached a verbal agreement with opposing counsel about the date for a particular witness's deposition and sent out the appropriate notice for the agreed date. So far, so good.

What I did not do, however, was make sure that the senior partner and the client, with whom we were working very closely, both had the deposition on their calendars. I caught the omission before the date arrived, and was able to reschedule it for a later date when it turned out that the client and the senior partner had subsequently schedule events that conflicted with the deposition, so I was able to fix the mistake.

I learned a valuable lesson, however, and one that I think is equally important for both junior and senior lawyers to remember, about the importance of communication. One important key to effective teamwork is making sure that everyone on the team, from top to bottom, is in the loop. If team members do not establish effective means of communication at the outset of a matter, it is virtually inevitable that at some point something will fall through the cracks. In the best case, the problem will be fixable, as my mistake was. In the worst case, a failure to communicate can lead to major problems, possibly even jeopardizing the outcome of a matter.

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