Wired GC

law from the inside out

GCs and the Opposition: No Fear

The ABA Journal has picked up the “report” by a legal consulting firm that features survey results of in-house counsel about outside litigation firms. The sales page for the report (only $2,400), along with the summary, are here.

Some legal media outlets have been favored with a look at the report. One, ALM’s Tex Parte Blog, notes the reference to a “Fearsome Foursome” of outside firms: Boies, Schiller; Jones Day; Kirkland & Ellis; and Skadden.

One question that generated this eye-catching list topped by these four law firms was reportedly which firm:

“would you really rather not see as lead opposing counsel in a litigation case.”

Now is this something you fear? The entire firm? Really? Because you might lose on the merits? Or because you might lose a large chunk of your outside counsel budget getting to the merits? Or of ever getting to some resolution?

First things first: general counsel do not fear a given law firm. In fact, many GCs have a T-shirt at the bottom of the rag pile in the laundry room closet with this logo:

Prudent general counsel do not underestimate any opposing counsel. If my opponent hires David Boies, I know (a) this case is big and (b) I need a worthy outside lawyer as my litigation counsel. Not to get too clever, but if my opponent fronts a second-year associate from Boies, Schiller handling a matter adverse to my company’s interest, I am much more likely bemused than afraid.

On large transactions or for major litigation, general counsel hire an outside lawyer with clear expertise. Most of these lawyers work at major law firms (or did at one time). If I am the counter-party to a deal or a case, I calibrate my selection of counsel like a chess move. And with litigation particularly, I chose a short-list of lawyers, and then look at their firms as a secondary selection factor.

For major litigation matters, you are choosing someone who will first-chair the case if it goes to trial. If David Boies says “Enough!” one morning and starts “The David Boies Law Firm” in a small town in upstate New York the next day, would that do something to the alleged fear factor calculus?

I don’t fear much, but I do fear for GCs who fear certain law firms. It’s not a worthwhile emotion; it’s really more a career-limiting exercise. (But it is a memorable marketing moniker…).

Now runaway budgets, or end-of-quarter “surprise” invoices are something else. That might result in something close to fear.

So next year I propose different list. It will be a “dirty dozen” of leading firms whose invoices are preceded by an interval of looming dread. And, of course, I will offer it at a value-price of $9.99, and make it available digitally on your new iPhone 5:

How Apple Will Leverage the Samsung Verdict

Yesterday we looked at Samsung’s attempts to minimize the damage from Apple’s billion-dollar patent infringement verdict.

Today Samsung is being more circumspect; according to the Wall Street Journal it took last week’s rambling statement, and pared it down to one sentence:

We will take all necessary measures to ensure the availability of our products in the U.S. market…

Not exactly rattling sabers anymore, eh? Maybe someone thought it wise to reign in boilerplate PR, and really start asking lawyers what all this means. And not just the lawyers from Quinn Emmanuel who handled the trial.

This is because Apple yesterday identified eight Samsung products that it wants permanently enjoined from sale in the U.S. There is hearing on that motion before trial Judge Lucy Koh on September 20. (Update: it now looks like the broader hearing on all these products will be held on December 6.)

This is where the calendar gets really interesting for Apple. On September 12, most observers expect Apple to announce the new iPhone 5. The best guess by people who make such guesses is that the iPhone 5 will start shipping on September 21. Yes, the day after the hearing on Apple’s injunction.

Now some smartphone market mavens expect Apple to sell more iPhone 5’s faster than any other consumer device in history. One analyst predicts Apple to sell $144 billion of them over its product lifetime (typically one year).

As they say on late-night TV info-mercials: but wait, there’s more!

Apple is also rumored to be readying the release of a new, smaller iPad in October. It would compete against smaller tablets sold by such companies as–wait for it–Samsung. That assumes that Judge Koh doesn’t enjoin their sale first. This iPad “mini” may be priced aggressively, and should sell amazingly well.

If there’s any consolation to Samsung, it’s that it builds components for the iPhone and iPad, such as the processor and memory chips. So maybe it has a sort of an economic hedge against the verdict. (Samsung has reportedly set up an internal firewall to separate the “fight Apple” and “supply Apple” groups. I have to think that some in the latter group are saying “told you so.”)

So when Samsung said it would appeal the verdict, it certainly has that procedural option. And maybe the verdict is overturned in whole (I doubt it) or in part (maybe).

But the media coverage of the verdict may already be worth more than a billion dollars to Apple. We know that the stock market yesterday took $12 billion off of Samsung’s market cap in the first trading day after the verdict.

So I would say that it the court of public opinion, even if Apple eventually loses, it has already won, many billions of times over.

And what does this mean for lawyers and those who want (and need) their attention? I think that by the end of this year, any lawyer worth marketing to or working with will use an iPhone or have an iPad in the house.

And what does that mean? I will start laying out my case tomorrow.

(Until then, here’s an exhibit from the trial…)

Memo to Samsung PR: Scoreboard

Apple won a huge victory last Friday in its patent litigation against Samsung. Apple CEO Tim Cook took the high road in a memo to staff, saying in part:

For us this lawsuit has always been about something much more important than patents or money. It’s about values. We value originality and innovation and pour our lives into making the best products on earth. And we do this to delight our customers, not for competitors to flagrantly copy.

For some reason Samsung decided to rattle the sabers a bit, and post something on their website, but call it an “internal memo”:

History has shown there has yet to be a company that has won the hearts and minds of consumers and achieved continuous growth, when its primary means to competition has been the outright abuse of patent law, not the pursuit of innovation.

We trust that the consumers and the market will side with those who prioritize innovation over litigation, and we will prove this beyond doubt.

I’m not sure if this is a literal translation from the original. I cannot fathom how Samsung can use the term “innovation” when it was just found massively liable for pervasive patent infringement.

So we have a gracious winner, and a confused loser. Here’s something to help Samsung:

Now aside from the fact that this looks it came straight from an afternoon Kindergarten “Let’s Do Numbers” session, I think when a jury says “you lose” and attaches a number with ten figures, you ought to be somewhat circumspect.

Perhaps as an omen to Samsung, the day before the verdict was announced, Jerry Nelson, the voice of “The Count” on Sesame Street, passed away.

Before you issue a press release after a major defeat in litigation, it’s important to count first. Maybe not to a billion, but at least to 10. Then do a draft, and catch 40 winks before you release it.

I think Apple is happy, loves the verdict, and is proud of its lawyers and witnesses. Maybe even exultant. Samsung is probably frustrated, sad and exhausted.

Donald Verrilli, Meet Ray Lewis

Solicitor General Donald Verrilli had a challenging week in front of the Supreme Court. Few lawyers ever appear there. Mr. Verilli had to do it three times in three days. Some commentators took Mr. Verrilli to task for his performance on Tuesday; others read the tea leaves as signalling that the Affordable Care Act is headed for the ICU.

What I will say is that Mr. Verrilli had the tough end of this argument, and that you should never assume the opinion of the Justices will correlate to the tone of their questioning. Don’t count out the SG just yet.

Mr.Verrilli allegedly prepared for these arguments in a secure Washington DC hotel, dining on salmon for the putative benefits of Omega-3’s on the legal brain.

But perhaps Mr. Verrilli should have retained the services of one Ray Lewis of the Baltimore Ravens. If anyone knows how to mount a stout defense of anything, it is Mr. Lewis. At the least he would have fired up Team Verrilli Sunday night; upon reflection Mr. Lewis could have been motioned in pro hac vice, and given the final three minutes of the government’s time on Wednesday.

My reasoning? I submit this as Exhibit A: Ray Lewis talking to the men’s Stanford Cardinal basketball team, right before they took the floor Tuesday night in an NIT matchup against UMass. Stanford won, and the team ran through a concrete wall after the game rather than using the locker room door at Madison Square Garden:

We get one opportunity in life. One chance in life … to do whatever you’re gonna do. To lay your foundation. To make whatever mark you’re gonna make. To leave whatever legacy you’re gonna leave. Leave your legacy.

All he has to do is to flip Justice Anthony Kennedy, after all.

Lawyers can learn three things from Mr. Lewis: (a) be brief, (b) be passionate, and (c) it’s easier to do (a) and (b) when you are standing less than a foot away from a high-wattage powerpoint projector.

It also can’t hurt to “Low-Five” the Nine Justices before you start your argument, either.

Keeping Company Secrets – James Boutrous Interview

Many companies are consolidating operations and reducing headcount. Unfortunately, this difficult process can be made even more challenging as some employees depart with more than a severance check.

Today we have an interview on this subject with James Boutrous of the Butzel Long firm as the Wired GC goes:

Wired GC - Unplugged

jimb1.jpg
James Boutrous
Butzel Long

Just press on the far left arrow to listen:

Time: 11:40

This subject, and others, will be addressed in greater detail at next week’s SuperConference in Chicago; program and registration information for this offering from Inside Counsel is available here.