When I went to law school, it was with the full intention of becoming a litigator. I would champion the rights of the downtrodden, fight for liberty and justice for all. If you've seen Erin Brockovich and A Civil Action, you have some picture of how lawyers can work for the good of people who have no voice. As for my specialty, apparently I told the associate in my investment banking group that I was going to do environmental law after one too many visits to toxic sludge-filled steel companies.
The reality proved to be different. Because of that banking background, it became nearly impossible to get a firm job in litigation. My experience was in Mergers and Acquisitions and corporate transactions, so naturally interviewers pegged me to follow that path as an attorney. Also, because of my nature as an introvert (which is nothing to be ashamed of as I discussed in a prior FLTW post), the mock trial sessions we had as part of our legal research and writing class filled me with terror. When I got in front of the judge (a mere 2L) to make my opening statement, I also passed out. It was bad. So I thought it was destiny that I would become a corporate attorney.
Fast forward ten years. Reading The Divorce Papers made me think about my current position as a contract attorney at an intellectual property litigation boutique. In my five years on the corporate side, it never crossed my mind that I would be working in litigation. Like the main character Sophie who specialized in criminal law but took a detour to work on a divorce case for the firm, I was presented the opportunity to dive back into law firm work last summer, albeit in litigation. I took it, since positions for lawyer moms who've taken time off are few and far between.
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First, if a hostile takeover is like a lightning raid, then litigation as it exists today in the U.S. is akin to the long drawn-out trench warfare of the first world war. As an M&A attorney, I worked on many antagonistic transactions. One of my strengths was my innate paranoia; that there was always something the other side was not telling us that I needed to ferret out and expose. There were many nights of sleeping at the office, wading through the documents and working out merger agreements. But it was rare that the entire process would last more than 6-9 months. Some of the smaller private deals went even quicker and were done in 3-5 months. IP litigation, on the other hand, is an exercise of patience. It can be years before a case even gets to a Markman hearing, the pretrial hearing that determines claim construction. Then if the trial is considered to be on the fast track, the actual trial will begin a year later.
Second, litigation is a game. The primary focus isn't getting justice under the law but winning. There are some situations where clearly the other side is making up lies that boggle the mind, but they persist in twisting the facts and the law to make their points. Even if the two sides of an M&A deal are at odds, once the merger agreement is signed, most of the adversarial posturing disappears. Merger agreements have Material Adverse Change clauses that will sink the deal if a extraordinarily liability comes out of the woodwork prior to and some time subsequent to closing. In litigation, if there is a smoking gun that one side manages to bury in the tens and hundreds of thousands of documents produced during discovery, then it is completely up to the receiving side to find it before it is too late. And even if two sides have gone back and forth on the case for over a lengthy period, there is nothing to prevent one side from slapping the other with a Rule 11 Professional Misconduct motion for bringing a case with no merit. Hey other side, if there were no merit, then why argue over the issues for more than a year before bringing your motion?!?
Last, "justice" is largely dependent on the judge assigned to the case and what that judge had for breakfast. It's amazing to see how the outcomes in many cases even in a single federal district in CA can differ from judge to judge. Basically, you can find cases to support whatever you want to argue. In the corporate context, if you are before the FTC or the SEC, even if it is one attorney writing the response to your issue, the sense is that it really is a collaborative office effort, rather than the determination of one person. No action letters and relief letters are relied upon (even if they state they shouldn't be relied upon) and subsequent actions come out in the same way for the most part. In litigation, the judge usually has the reputation of being plaintiff or defendant biased, but there is nothing anyone can do about it anymore since he is federally appointed and can only be dismissed for gross misconduct.
All of that said, I have relished the opportunity to go back to the office setting to learn IP law and the ins and outs of litigation. Learning how to use Westlaw efficiently all over again and drafting documents has given much satisfaction to my inner nerd. I'm a person that fights hard against change. It took me years to change my driver's license, my phone number, and my permanent mailing address. Some of my accounts are still listed under my maiden name. But what I've learned over and over again, that once you embrace change and step out of your comfort zone, you will be stretched and enriched in the process. The version of YOU that emerges is one that is wiser and more connected to the world. The banner across the blackboard of my seventh grade English class read, "Nothing is as constant as change." Every year of my life I find that to be true. How will you step out of your comfort zone?