The intersection between law and business grows more congested and perilous with each passing headline. Scary, scandalous collisions at Enron, Andersen, and Global Crossing, among others, are proving deadly for employees and shareholders alike. No company is safe. And emergency triage operations — life-saving legal campaigns — are gaining speed and severity at dozens of seasoned law firms like Gibson, Dunn & Crutcher LLP.
One of the most successful and profitable law firms in the United States, GD&C is a master of disaster. Founded in Los Angeles 112 years ago, the firm is perhaps best known for its winning litigation department — dubbed “the rescue squad” by the American Lawyer magazine in January because it has won so many high-profile, high-stakes, high-speed cases for American big business. Oh yeah, it also won a little U.S. Supreme Court case called Bush v. Gore back in December 2000.
GD&C’s leading lawyer in Bush v. Gore was Theodore Olson, who left shortly afterward to become solicitor general of the United States. But the firm did not forfeit its magic when Olson moved on. Last year alone, it won landmark legal cases for DaimlerChrysler, Lockheed Martin, and AMR Corp., the parent of American Airlines. In each case, the appellate team at GD&C stepped into dire circumstances ($250 million in punitive damages in the DaimlerChrysler case) and turned things around with deft skill.
“Our job is to put out the flames that are causing an immediate and fatal threat,” says Theodore Boutrous, lead lawyer on the DaimlerChrysler case. “Once things are under control, we have to find the root cause of the problem. Oftentimes, a terrible injustice has occurred — something has gone wrong in the jury room or during the trial that has produced an erroneous verdict. We have to figure out what legal flaw in that verdict will allow us to eliminate the problem all together.”
Here, Boutrous and colleague Thomas Hungar explain how the rescue squad at GD&C operates — and wins — with efficiency, flexibility, and speed.
Waste No Time
On November 7, 2000, one day after the U.S. presidential elections, Theodore Olson received a phone call from George W. Bush’s campaign camp. Traveling between his home base in Washington, D.C. and the GD&C offices in Los Angeles, Olson picked up his voice mail upon arrival at LAX. Within minutes, he was boarding a plane bound for Florida and kicking off a string of legal battles, including Bush v. Palm Beach County Canvassing Board and Bush v. Gore — arguably the most momentous political-legal battle in history.
“The Florida Supreme Court handed down its decision on a Friday,” Hungar, who worked alongside Olson for the Bush campaign, recalls in the canvassing-board case. “We filed our papers in the U.S. Supreme Court that Friday night. The Supreme Court granted review the next day. We filed our main brief the day after that and began our arguments the day after that — Monday morning. It all proceeded extremely quickly.”
But Bush v. Gore was the real killer. GD&C had just 48 hours to brief and prepare arguments for the case that would decide the next U.S. president. Ultimately, the Supreme Court held (by a 7-2 vote) that Florida’s recount procedures were unconstitutional and (by a 5-4 vote) that no further recounts were permissible. Those decisions, however contentious, validated the firm’s focus on speed and diligence.
“Speed is incredibly important, but it means nothing without thoroughness,” Boutrous says. “One of the most crucial skills is the ability to plunge in quickly, distill the key issues in a case, process the facts very quickly — within hours in some cases — and then immerse yourself in the case instantly and reemerge as if you’ve been there all along.”
Lawyers working on tight deadlines must not only understand the nuances of a given case in 10 seconds flat, but they must also be able to articulate those nuances forcefully in front of a judge, a jury, and the national media. Comprehension is not enough.
“Very, very quickly, you must be able to speak the language of that case,” Boutrous says. “Within a few days of getting a case, it’s really important to learn the key players, witnesses, evidence, and issues — and then be able to write about it in a way that is not only persuasive as a legal argument but sounds as if you are speaking its particular language. If you sound like an authority, the judge will have confidence in what you’re saying.”
Ditch the Ego
Five years ago, a federal-court jury in Houston leveraged $222.7 million in compensatory and punitive damages against Dow Jones & Co. — marking the largest libel verdict in history. Publisher of the Wall Street Journal, Dow Jones was brought to court by a Houston brokerage firm, MMAR Group Inc. At issue was a 1993 Journal article that charged the founders of MMAR Group with deceptive trade practices.
Boutrous first heard of the case when he opened his morning newspaper and read about the verdict, in March 1997. A few days later, he was asked by the Dow Jones legal team to lead a historic turnaround mission — to help reverse the crippling judgment in an appellate court.
Not only did Boutrous need to learn the case and formulate a strategy to get the verdict overturned; he also had to link arms with the general counsel for Dow Jones as well as lawyers from George, Donaldson & Ford, the Austin-based firm that had tried — and lost — the initial case. Quickly joining forces with, and learning from, lawyers who were experienced with the case would prove absolutely crucial.
“It’s important to be able to jump in with fresh eyes,” Boutrous says. “But at the same time, you have to work well with the client and then with the other lawyers, who have been there all along.”
That legal collaboration paid off almost immediately, when Boutrous and his teammates convinced U.S. district judge Ewing Werlein Jr. to throw out the $200 million punitive-damages portion of the jury award, arguing that there wasn’t evidence that Dow Jones published the disputed article with reckless disregard. Then, in August 1999, Werlein threw out the remaining $22.7 million in compensatory damages — partially because the appellate legal team discovered that MMAR had failed to disclose pertinent, secret recordings during the initial trial.
“We find that it if you value people’s contributions and treat them with respect, you can iron out the tension that is sure to arise when you put several legal teams in one room,” Hungar says. “There is no room for ego.”
Stand Strong, Remain Flexible
The importance of courtroom flexibility was never so evident as it was during the final days of Bush v. Gore, when leading counsel Olson abruptly — and effectively — shifted from a straightforward argument about ballot counting to a more obscure argument about equal protection. But the line between flexible and wishy-washy is anything but fine. While constantly considering new angles and fresh arguments, a good appellate lawyer will never appear unsure, Hungar says. That means not allowing your opponents to pull you away from your themes and keeping your head clear in the midst of intense Supreme Court inquiries.
“In most appellate courts, it’s important that you answer the justices’ questions, even if they’re asking about something you’re not interested in talking about, because you don’t want to irritate or anger the court,” Hungar says. “You want to be respectful and give the justices the information they need to decide the case, but at the same time, a good appellate oral advocate is always looking to turn the question to his advantage. And, in answering the question, he is always looking for ways to turn attention back to the case’s main themes.”
Currently, Hungar is practicing the art of strategic flexibility in the case of NextWave Personal Communications Inc. v. Federal Communications Commission — a long-running battle over more than 200 valuable wireless communications licenses. In January 2000, the Federal Communications Commission seized and reauctioned licenses issued to NextWave shortly before the communications company declared bankruptcy three years earlier. NextWave never paid for the licenses, but GD&C argued that the government did not have the right to seize the assets of a bankrupt company. On June 21, 2001, the D.C. circuit court agreed with NextWave, prohibiting the FCC from releasing the licenses — worth about $16 billion.
Then, in early March, the U.S. Supreme Court agreed to hear the case. That means Hungar, who represented NextWave in the United States Court of Appeals for the District of Columbia Circuit last year, must return to square one. Though he declined to comment on the case, he and his team at GD&C are most certainly going to fine-tune and finesse a new argument for the Supreme Court, which will work to reconcile the federal bankruptcy law with the Telecommunications Act of 1996. Chances are the themes and emphases of the case will continue to shift for months — even years — to come.
“We pride ourselves on leaving no stone unturned in search of the strongest and most effective legal argument, even if that means digging back into arcane 17th-century English common law,” Hungar says. “That’s the kind of thing we do to ensure that the best research and legal writing is done to present the best legal arguments to the court.”
Anni Layne Rodgers (email@example.com) is the Fast Company senior Web editor. Learn more about Gibson, Dunn & Crutcher on the Web.