Lawyers at Work

293 Pages·2012·2.6 MB·English

by  Clare Cosslett

Lawyers getting the third degree—and loving it!
JamAinen Ze aVwlaidnesckki GKuatye S Rtoeemlaein
(Employment) (Cross-Border M&A)
Brad Fitzpatrick Dan Ingalls
Jim Sanders Chris Sprigman
Douglas Crockford L Peter Deutsch
(Corporate Defense) (Antitrust/Intellectual Property)
Lawyers
at
Work
Jonathan Streeter Wayne Alexander
Brendan Eich Ken Thompson
(Federal Prosecution) (Entertainment)
Joshua Bloch FSreaann DAelllaenny
Ken Kopelman
(Nonprofit)
(Financial Services)
Joe Armstrong Bernie Cosell
David Whedbee
Nandan Nelivigi
Simon Peyton Jones Donald Knuth
(Civil Rights)
(India Practice)
Peter Norvig Shane Kelley
Jacalyn Barnett
(Trusts & Estates)
(Family Law)
Arthur Feldman
Peri Lynne Johnson
(Civil Litigation)
(International Law)
Adam Nguyen
(Corporate/Legal Technology)
C l a r e C o s s l e t t
For your convenience Apress has placed some of the front
matter material after the index. Please use the Bookmarks
and Contents at a Glance links to access them.
Contents
Foreword                                                       vii
About the Author                                                ix
Acknowledgments                                                xi
Introduction                                                    xiii
Chapter 1 Anne Vladeck, Employment Law                               1
Chapter 2 Jim Sanders, Corporate Defense                              17
Chapter 3 Jonathan Streeter, Federal Prosecution                         37
Chapter 4 Ken Kopelman, Financial Services                             63
Chapter 5 Nandan Nelivigi, India Practice                              77
Chapter 6 Jacalyn F Barnett, Family Law                               95
Chapter 7 Peri Lynne Johnson, International Law                        115
Chapter 8 Kate Romain, Cross-Border M&A                            133
Chapter 9 Chris Sprigman, Antitrust/Intellectual Property                    151
Chapter 10 Wayne Alexander, Entertainment                           171
Chapter 11 Sean Delany, Nonprofit                                   193
Chapter 12 David Whedbee, Civil Rights                               209
Chapter 13 Shane Kelley, Trusts & Estates                              227
Chapter 14 Arthur Feldman, Civil Litigation                             245
Chapter 15 Adam Nguyen, Corporate/Legal Technology                      261
Index                                                          281
v
Introduction
The practice of law is not monolithic. Professional directories for the United
States sort one million lawyers and 50,000 law firms into some 65 core practice
areas. In Lawyers at Work, I interview fifteen lawyers in fifteen practice areas
selected to be representative of the lawyering spectrum: employment law,
corporate defense, criminal prosecution, financial services, international project
finance, family law, international law, cross-border mergers and acquisitions,
antitrust, intellectual property, entertainment, nonprofit, civil rights, trusts and
estates, and civil litigation.
My interviewing method has been to elicit from this ensemble of lawyers their
own stories in their own words. My aim has been to get at what makes them
tick: why they went into law, how they matched their personal traits and values
to their chosen practice areas, how they built their careers and developed their
styles of practice, how they manage the tensions between their professional
and private lives, and what drives them to lawyer on.
The lawyers I interviewed gave me a variety of reasons for becoming lawyers.
About half of them became lawyers because of a strong family legacy in the law.
One became a lawyer in spite of her family. Some found inspiring role models
and others thought they would enjoy the intellectual rigor of the law. Some
knew exactly what they wanted to do even before entering law school. Others
stumbled into their area of expertise after leaving law school.
Some of the lawyers interviewed in this book are “true believers” whose
practices reflect personal ethical imperatives to redress social inequities.
Sean Delany, for example, has spent his career in the area of public service
representing the indigent. David Whedbee has always reached out to protect
the civil rights of the least affluent. Anne Vladeck never doubted that, as
an employment lawyer in her family firm, she would represent unions and
employee plaintiffs against big employers, just as her parents had done.
You can’t imagine a “true-believer” representing the other side without a crisis
of conscience. By contrast, a “shades-of-grey” lawyer such as Jon Streeter is
equally at ease prosecuting or defending the same classes of litigants. And Jim
Sanders, tongue firmly in cheek, avers that moving from a public defender role
to a corporate defense role can still be considered indigent defense if your
client doesn’t pay.
xiii
xiv Introduction
Some lawyers, such as Arthur Feldman, enjoy taking on a broad array of
cases. Many others—like Ken Kopelman, Jacalyn Barnett, Wayne Alexander,
and Shane Kelley—opt not to stray from their field of expertise. Some have
taken their practice onto an international stage, like Nandan Nelivigi, Peri
Lynne Johnson, and Kate Romain. Others have acquired their legal expertise in
practice and then applied it to academia and authorship, like Chris Sprigman, or
to entrepreneurship, like Adam Nguyen.
In interviewing these fifteen lawyers, I discovered that, despite the diversity
of their practices, priorities, and personalities, they all shared one trait in
common. Each had taken an aggressively proactive approach to his or her
career. When they saw opportunities, either professional or personal, they
went for them. They took risks and followed their instincts in selecting paths
that were often neither straight nor continuous. Falling in love or raising a
family can redefine a professional path without derailing it.
In twenty years of legal recruiting, I’ve seen the market seesaw back and forth
between jobs looking for good lawyers in times of economic growth, and
lawyers looking for good jobs in times of contraction. It is no secret that since
2008 law schools have been producing more lawyers than there are jobs and
that the median salary for junior attorneys has dropped.
For those considering law school, it is always risky to predict what the job
market will look like years down the road. What prospective lawyers do know
is that a shrinking market swells the ranks of unemployed and underemployed
lawyers, against whom they’ll find themselves competing after law school.
In the face of a weak and highly competitive market, it is imperative for
prospective lawyers to chart a realistic career plan before investing in a JD.
Law is no longer a fallback profession for dilettantes and temporizers. If you
understand what it means to practice law and you still want to do it—do it. If
not, do something else. Being a lawyer is hard work for those who love it. It is
not a life for those who do not.
The practitioners in this book all love their work, and all of them have
weathered economic storms and market turmoil. Collectively, they prove two
complementary propositions. First, lawyers can have exciting, remunerative,
and personally satisfying careers. Second, before taking a shot at the first
proposition, a prospective lawyer had better research deeply the practice
areas that interest her, take brutally honest stock of her own temperament and
abilities, and satisfy herself that the two are in perfect alignment.
So, if your passion is law, take what lessons of the head and heart you can from
the words of these fifteen legal practitioners who honor the legal profession
and love what they do.
C H A P T E R
1
Anne Vladeck
Partner
Vladeck, Waldman, Elias & Engelhard, P.C.
If you believe in workers’ rights and want to practice employment law, then you are
going to be on the plaintiff’s side. And if this is the path you choose, then prepare to
embrace the fate of Sisyphus, condemned to push a boulder to the top of the moun-
tain only to watch it inevitably roll back down. For there is an inequality of resources
in plaintiff-side employment discrimination work, Anne C. Vladeck warns, such that
it’s easier and more lucrative to do management-side defense. But if you are a true
believer—like Vladeck, who has a strong family history of left-of-center politics and her
name on the door—you would never consider representing a company that had wrong-
fully fired an employee. Never.
Vladeck took her BA, magna cum laude, from the University of Pennsylvania and her JD
from Columbia Law School. She is an adjunct faculty member at Columbia Law School
and has taught at Fordham and Cardozo Law Schools. She is a trustee of the Federal
Bar Foundation (secretary), a member of the Executive Committee of the Federal Bar
Council Inn of Court (president-emeritus), a former member of the Association of the
Bar of the City of New York Professional Discipline Committee, and a Fellow of the
American College of Trial Lawyers. She has received numerous awards for her work
and is a frequent speaker on employment law and litigation issues.
Clare Cosslett: When was the firm of Vladeck, Waldman, Elias & Engelhard
founded?
Anne Vladeck: My parents started this firm together in the late 1940s for the
purpose of representing unions and workers. They were on the ground floor of
employment discrimination because the antidiscrimination laws began to develop
2 Chapter 1 | Anne Vladeck: Employment Law
in the sixties and thereafter. The firm’s discrimination practice has been a natural
outgrowth of the labor practice.
Cosslett: Did your parents have a particular political ideology that made labor
law a natural area in which to practice?
Vladeck: I think that labor and employment law is one of the areas where you
normally do have a political bent. If you are just interested in the subject matter
but don’t have a political leaning, you should do management-side work and repre-
sent companies, because you earn more and you’re treated differently by some of
the courts. If you believe in workers’ rights, then you’re going to be on the union
side or the plaintiff side. And, more than just about any other area of law, it is
political in the sense of which side you pick. There are some people who do both
sides, but that’s fairly rare. They tell you in law school that you can do either side
and it doesn’t matter, but I think with labor and employment law that’s wrong.
Cosslett: When you say you’re treated differently by the courts when you’re
representing the plaintiff side, what do you mean?
Vladeck: Many judges think that employment disputes are not really worthy of
federal court because the plaintiffs are individuals. Some federal judges are more
interested in antitrust or corporate cases. I’m not saying this is true of all judges,
but certainly some judges think that employment cases should be dealt with by
separate courts, like Social Security or immigration, they should be given a dif-
ferent designation. And it makes it more difficult when you have an employment
case if you have a judge who, to some extent, thinks you’re wasting his time. It’s
always been our belief that we have to put in papers that are better, and clearer,
and more succinct, because we’re going to lose the attention of the judge. It’s
not necessarily political, but some of it is also politics. Some judges really think
that courts have gone too far in the antidiscrimination laws.
What’s interesting, I think, is that judges are not happy to see certain claims in
their courtroom, but if it becomes an issue for a friend or relative, then all of a
sudden they’re the best claims ever and we should go to the Supreme Court.
Cosslett: Why did you decide to go to University of Pennsylvania for college
and did you know that you were going to go on to law school?
Vladeck: I grew up on the Upper West Side in Manhattan and went to PS 87.
I then went to a very small high school and I wanted something that was big
and urban. Penn just seemed to be perfect. And it was. I thought it was great.
I actually didn’t make the decision to go to law school until I walked in the door
of Columbia Law School.
Cosslett: What other career paths were you considering?
Vladeck: When my mother was asked what I was going to do, she used to say
I was going to be a doctor or a lawyer or do batik. If I had more talent, I would
have been an artist. And if I could stand the sight of blood and been better at
science, I would have been a doctor. Law school was a default position.
Lawyers at Work 3
Cosslett: Once you had made the decision to go to law school, did you plan to
join your parents’ practice? Or did you say, “I’m going to do this, but I’m going to
carve my own path”?
Vladeck: I don’t think either. The first firm I went to right out of law school
was an environmental law firm, and it was presented as a public interest firm,
with clients like the Adirondack Council. There were issues relating to what
they were going to do with Whiteface Mountain for the Olympics. I thought that
was perfect.
They were then retained to defend a class action against a medical school. They
thought I would be perfect for that. I didn’t agree. I hated the work and so, while
I still liked a lot of people who were there, I left after about a year to go to what
was then Frankfurt Garbus Klein & Selz, which is a First Amendment entertain-
ment firm. It is now Frankfurt Kurnit Klein & Selz.
Cosslett: So many lawyers start out in their career and they get to the first
place, and they think, “Oh, this isn’t what I thought. I don’t like this.” And then
they feel stuck.
Vladeck: This was in 1979 and the market was very strong. I said to myself,
“This isn’t for me,” did some exploratory work and had a job within a week.
When I was hired, I was the tenth lawyer at Frankfurt Kurnit. I think there are
now about sixty lawyers. I did a lot of First Amendment work. I did some of the
libel work for Viking/Penguin, which was a major client. Some of it was enter-
tainment litigation, where a star was in a magazine and they airbrushed out her
dress. Things like that.
Cosslett: You avoided the big-firm route, and I’m sure they were beating down
your door.
Vladeck: It never occurred to me to do that. Even during the summer, I worked
as an intern for the US Attorney’s Office. I didn’t want to work at a big firm.
One summer in college, I worked at a big firm proofreading legal documents. It
was mind numbing. I said, “Not for me.”
Cosslett: You were with Frankfurt Kurnit for about three and a half years. Did
you find that you took on a lot of responsibility fairly early on?
Vladeck: Yes. And it was a firm where there was some supervision, but there
was also some, “Just go do it.” There were a lot of very good lawyers there, so
there were people you could ask questions of who were more senior and who
would help. It was very collegial. It was a great place.
The firm was divided between entertainment and litigation, with litigation being
the smaller practice. It was intense, but it was good intense because instead of
having six layers, where I was an associate reporting to a more senior associate
who reported to a more senior associate, it was one on one with the partner
and the client. It was much more collaborative. So I thought it was great. There
4 Chapter 1 | Anne Vladeck: Employment Law
was no time or money for a small firm to do make-work—to say, “Do a memo
on this that I’ll never use.”
Cosslett: Sounds as though you were pretty happy there. Why did you leave?
Vladeck: My father died in the late seventies. One of my older brothers is a
lawyer, and he and I were thinking it was probably a good idea to have a family
member join my parents’ practice if we were going to maintain it as a family firm.
We believed that our parents had created something valuable. My brother was
firmly ensconced in DC. At the time, he was at Public Citizen Litigation Group
and was about to argue before the Supreme Court. So it seemed to be a more
natural move for me. I started here in 1982.
Cosslett: How big was the firm when you joined?
Vladeck: I think there were about ten to fifteen lawyers. About the same size
as we are now. We had gotten to be a much larger firm doing more union-
side labor work, but we don’t do very much of that anymore. We find that the
employment litigation practice is really our specialty. There are a few small firms
in New York that do labor work, and they tend to have certain institutional
clients.
Cosslett: When you joined Vladeck, you were a fifth-year associate. Your mom
was a senior partner. How was it to walk in as a midlevel associate? Did your
mom take you under her wing, or did she say, “You’re on your own kiddo”?
Vladeck: It was very natural because she treated most of the young associates
like her kids anyway. The one thing that we had a very hard time with was
figuring out what I was going to call her. We had a major case when I was first
here called Whittlesey v. Union Carbide. We represented an employee who sued
Union Carbide under the age discrimination act. Union Carbide argued that he
was a high-enough-level employee that they were able to mandatorily retire him.
It’s a case that went up to the Second Circuit. We were in court on an injunc-
tion motion and we were in one of those old federal court elevators. My mother,
who had one speed, which was fast, was getting out of the elevator before it
arrived at the floor, and all of a sudden, I screamed, “Mom!” And everybody in
the elevator cracked up, even people we were just yelling at.
So I ended up just calling her “Mom.” That was the only real issue we had to
deal with.
Cosslett: How was the Whittlesey case decided?
Vladeck: We had a bench trial before Judge Pierre Leval, who’s at the Second
Circuit now. He found that our client was discriminated against. And he also, for
the first time in this circuit, ordered front pay instead of reinstatement because,
under the circumstances, reinstatement would have been difficult for both the
plaintiff and the company. It became one of the cases that’s cited all the time for
the front-pay principle.
Lawyers at Work 5
Cosslett: I’m very confused about mandatory retirement.
Vladeck: If there’s a real partnership, you can have mandatory retirement. But
if it’s not and you have employees, then you can’t because it’s unlawful for age to
be the motivating factor in a decision. Contrary to what a lot of people believe,
there’s no upper limit on the laws against age discrimination. You have to be
over forty to be covered by the ADEA,1 but you could be ninety and sue for
discrimination. One of my partners had a sexual harassment case for someone
who was in her late seventies. It was settled.
Cosslett: How have you built your reputation as a litigator?
Vladeck: We have a lot of contact at this firm with clients and potential clients.
So I started meeting people and helping them. It’s word of mouth. The one thing
that can be very satisfying is that we get a lot of referrals from the other side—
from our adversaries—and even from the courts. So we have the sense that if
we had left money on the table in a settlement or had not done a good job, our
adversaries would not be sending us their friends or their partners. So reputa-
tion is developed in part in that way and then also through speaking or teaching.
There are a lot of opportunities for speaking, such as courses and events for the
Practicing Law Institute, the American Law Institute Continuing Legal Education,
and ABA and bar associations. I’ve also done adjunct teaching at Fordham,
Columbia, and Cardozo.
In teaching, you find that you learn things that can be very useful in your
practice that otherwise you wouldn’t have focused on. You go back and read
some of the early cases that you use but haven’t really thought about in a long
time. It can be very, very helpful.
Cosslett: Is your practice primarily national, or is it New York–oriented?
Vladeck: It’s primarily New York area, but it is national in the sense that we do
have cases in other states. If we have a lawsuit out of state, we have local counsel.
We also have some lawyers who have membership in bars outside New York,
but the firm’s practice is generally local. The companies, on the other hand, can
be national and now with people working remotely, it’s like a law school exam:
“They work in Canada, but their headquarters are in New York, but the act took
place in Florida.”
Cosslett: Where does jurisdiction lie?
Vladeck: Your guess is as good as mine.
Cosslett: Are you seeing more of a particular type of employment d iscrimination
than you used to?
1The Age Discrimination in Employment Act of 1967.