In the News The National Law Journal

Chicago Litigation Department of the Year: The Windy City's Litigation Rainmakers

05 August 2013

This week, The National Law Journal trains its sights on litigation shops in Chicago—the city that brought us the skyscraper, Muddy Waters, Playboy and Ebony, and McDonald's. Oh, and a heck of a lot of legal talent. We asked litigation practices there to tell us about themselves—their headcounts and revenues, wins and losses. Our staff scrutinized their reports to arrive at the list of law firms you'll find in these pages. Kirkland & Ellis wins the overall prize. We were impressed by the sweep of the 300-attorney shop's ambitions, the breadth of its expertise and its record for success—on average, Kirkland won a victory in civil litigation on every business day last year.

Winner: Kirkland & Ellis

Kirkland & Ellis litigators in Chicago racked up an eye-popping 266 victories in civil litigation last year — an average of one win every business day.

The number reflects the breadth, depth and skill of the firm's nearly 300 Chicago litigators, who are known for their exacting preparation and forceful, even relentless approach. From defending long-time client BP PLC in massive litigation stemming from the Deepwater Horizon disaster, to beating back hundreds of products liability claims involving a contaminated drug, to winning $65 million for International Business Machines Corp. (IBM) in a contract dispute, Kirkland lawyers played for high stakes and won.

"We aren't afraid to go to trial," said partner Mark Filip, a former federal judge who served as deputy attorney general and acting attorney general in the U.S. Department of Justice from 2008 to 2009. "We're honest and ethical, but I do think we're aggressive and tough and hard-edged to some degree."

Filip is one of the lead Kirkland partners representing BP in a matter that has involved nearly 200 firm lawyers. Chicago partners Richard Godfrey, J. Andrew Langan, Matthew Regan and Hariklia Karis are also overseeing the multipronged litigation (along with co-counsel from Gibson, Dunn & Crutcher and Arnold & Porter), which has grown to more than 700 related cases in courts around the country.

Last year, BP agreed to pay $4 billion to settle criminal charges and a U.S. Securities and Exchange Commission civil suit and reached a class settlement resolving many economic-loss and medical claims. A multiphase bench trial in New Orleans federal court is continuing.

BP "wants to step up and be responsible," Filip said. In this context, success "ultimately is when the client is satisfied the matter is handled in a way that's consistent with their corporate ethics."

Another case in which Kirkland lawyers limited client liability involved the blood thinner heparin. In 2007, Baxter Healthcare and Scientific Protein Labs received raw heparin from China that was contaminated by a synthetic compound. Hundreds of cases were filed across the country, then consolidated into federal multidistrict litigation in the U.S. District Court for the Northern District of Ohio and a state court action consolidated in Cook County, Ill.

In the Ohio case, Kirkland lawyers led by Leslie Smith, Douglas Smith, Renee Smith and Sarah Donnell first won summary judgment on general causation in several categories. They went on to win summary judgment on 83 individual cases in 2012. Subsequently, most of the other plaintiffs voluntarily dismissed or settled their claims.

In Illinois, the first heparin case to go to trial involved a man who died after receiving the drug. The plaintiffs wanted $18 million, but the jury in 2011 awarded $625,000. With that verdict in hand, Kirkland lawyers last year went on to settle the bulk of the remaining state court cases, cementing their victory with a unanimous defense jury verdict in Nebraska state court earlier this year.

The key, Leslie Smith said, was "making sure the claims that had no merit were dismissed, while at the same time acting in a responsible manner" toward those who suffered legitimate harm.

Overall, Smith said, Kirkland lawyers are effective "not because we're loud or pounding the table, but because we're fluent in the facts and incredibly prepared."

Those qualities were evident in the firm's representation of IBM in a nasty contract fight with the state of Indiana. In 2006, the state signed a $1.3 billion agreement with IBM to modernize its welfare eligibility system. The program "became very unpopular politically," said Kirkland of counsel Steven McCormick, who worked on the case along with Chicago partners Jonathan Bunge, Douglas Smith and Aaron Charfoos. In 2009, Indiana terminated the contract, then sued IBM for $430 million in Marion County, Ind., alleging breach of contract.

The case went to a bench trial in spring 2012, lasting six weeks and involving 92 witnesses and nearly 7,500 exhibits. "We were able to go back through the records of the state…and show that IBM had accomplished every single one of the goals the state had for the program," McCormick said.

Indiana Governor Mitch Daniels refused to testify. The Indiana Supreme Court ruled he didn't have to, but gave the trial court wide latitude to "ensure that the interests of justice are served." The Kirkland team got creative — they went through Daniels' publicly recorded statements — there were many — for relevant quotes. Then they posed questions in court and played his "answers," McCormick said. The court dismissed the state's breach-of-contract claim and awarded IBM $65 million in termination payments and interest. The case is now on appeal.

McCormick summed up what makes Kirkland lawyers successful: "You have to be practical, to sense what is realistic," but you also have to be imaginative, and "to be relentless." — Jenna Greene

KEYS TO SUCCESS

"We focus on trial strategy and themes from the beginning of a case, efficiently drill down to the issues and facts that really matter, and meticulously prepare each case as if it will go to trial."

"Kirkland partners are excited to be at Kirkland, enjoy being lawyers and invest the time and effort to really understand the client's business objectives and shape case strategy from the earliest phases. It's a very upbeat place." — Mark Filip, partner and member, global management executive committee

"We emphasize recruiting attorneys from diverse backgrounds and providing extensive formal training and early opportunities for junior lawyers. Every member of a litigation team plays an important and often visible role, and we deliver successful results because our junior lawyers are so talented."

"We are passionate advocates for our clients and in court. Kirkland attorneys are fluent in the facts and law of the case, and work to establish credibility from the outset." — Leslie Smith, partner and member, global management executive committee

Practices