Media Savvy and Litigation Department of the Year

So what does it take to be named the law firm "Litigation Department of the Year?" Well, according to American Lawyer in its profile of this year's winner, Gibson, Dunn & Crutcher, media savvy is a key ingredient. AmLaw puts it this way:

The most important battles can't be won solely with legal filings or courtroom arguments. Gibson, Dunn partners strongly believe that public perception can shape the outcome of a case. So its litigators aren't shy when it comes to engaging the media. Take the firm's successful challenge to Proposition 8, the California statute outlawing gay marriage. In the days leading up to the trial of Perry v. Schwarzenegger , partner Theodore Olson penned a 3,000-word cover story for Newsweek , entitled "The Conservative Case for Gay Marriage." And Olson estimates that he, along with his cocounsel David Boies, has participated in scores of interviews to explain the team's advocacy for marriage equality.

The profile of Gibson Dunn goes on to describe the firm's public perception savvy in other cases as well:

Gibson lawyers are just as adept at shaping the public dialogue in cases that are more technical and abstract. Case in point: the firm's representation of the U.S. Chamber of Commerce and the Business Roundtable in their challenge to the SEC's "proxy access" rule, which would have made it easier for shareholders to nominate directors. Partners Eugene Scalia and Amy Goodman participated in the press conference announcing the lawsuit in September 2010. They also compiled critical comments about the rule from current and former SEC commissioners that were posted on the groups' Web sites. And Scalia says he fielded dozens of phone calls and e-mails with reporters.

In July the D.C. Circuit invalidated the proxy access rule, delivering Scalia his fourth victory in six years challenging SEC rules. It's impossible, of course, to gauge the impact of the media campaign. But to Gibson, Dunn clients, the firm's media savvy is just one more way these litigators distinguish themselves. "It's a very special skill set [that Gibson, Dunn has]," says Robin Conrad, executive vice president at the litigation center of the Chamber of Commerce.

The other finalists in the annual competition included Boies, Schiller & Flexner, Mayer Brown, O'Melveny & Myers, Sidley Austin and Wachtell, Lipton, Rosen & Katz. Honorable mention went to a slew of litigation departments at top-line law firms, including Baker & McKenzie, Cravath, Swaine & Moore, Davis Polk & Wardwell, Hughes Hubbard & Reed, Jenner & Block, Jones Day, Kirkland & Ellis, Munger, Tolles & Olson, Orrick, Herrington, Paul, Weiss, Quinn Emanuel, Sullivan & Cromwell, Weil, Gotshal & Manges and Wilmer. A full list of the winners in all categories can be found here (subscription, I believe, is required).

The Mark Hurd Saga Continues

Last week the Mark Hurd case was back in the news. And the lesson for readers of In The Court of Public Opinion is this: assume everything is going to come out... eventually. And that someone will be to cover it. This is especially true in the age of the Internet, of video phones, iPads, PACER, Twitter and TMZ.

Hurd, the former CEO of Hewlett Packard – he’s now president of Oracle – was accused of sexual harassment by Jodie Fisher, a former event planning contractor for HP. Last week, a letter from Ms. Fisher’s attorney, Gloria Allred, was ordered to be made public by a court in Delaware. 

The Delaware Supreme Court ruled that the information contained in the letter is only "mildly embarrassing" to Hurd, and therefore is not protected from public disclosure. It didn't contain trade secrets HP, or non-public financial information. Rather, it contained details of Hurd's alleged sexual pursuit of Fisher.

The letter came from celebrity lawyer Gloria Allred.

An HP investigation did not find any evidence to support the harassment claim, but instead uncovered inaccurate expense reports relating to Fisher. This was enough to force Hurd out in August 2010. 

According to the letter, Hurd made it clear to Fisher that he was seeking a sexual relationship. 

Allred also claimed that Hurd made several sexual advances toward Fisher, which Fisher rejected.

The letter alleges that, as a result of her rejections of his sexual advance, Hurd was not hired for any future HP events.

Hurd's attorney, Amy Wintersheimer, said his lawyers had requested that the letter be kept confidential because "it is filled with inaccuracies (it should be noted that Fisher herself in a subsequent letter disavowed some of the contents of this letter, saying it was inaccurate and distortion and that she never meant to hurt Hurd).

Hurd’s attorney released a statement last week that said, in part: "The truth is, there never was any sexual harassment, which HP's investigation confirmed, and there never was any sexual relationship, which Ms. Fisher has confirmed.”

Just another example of a legal battle being simultaneously fought out in the court of public opinion – at it seems stories like these crop up every week.

Yes.... Judges are Affected by Public Perception (Part 2)

Here's another example of the extent to which Judges are affected by public pressure. According to Adam Liptak of The New York Times, the U.S. Court of Appeals for the 11th Circuit recently reversed itself on a highly controversial decision it made last year when it decided that there were no racial overtones when a a white manager at a Tyson chicken plant in Gadsden, Ala., called adult black men working there “boy.”

Why? It appears the judges did an about face in reaction to public outcry over the decision, and subsequent brief filed by some of the top names in civil right history. According to Liptak: 

The decision prompted Mr. Clemon and 10 other civil rights leaders to file a brief. Among the signatories were giants of the civil rights movement like the Rev. Fred L. Shuttlesworth, who survived beatings and bombings in Alabama and who died in October, and Andrew Young, a former mayor of Atlanta and ambassador to the United Nations.

The brief urged the court to reconsider, making the case that “boy” retains its venom. For evidence, the brief drew on personal experiences, history, literary classics like “To Kill a Mockingbird” and “Native Son,” and the writings of the Rev. Dr. Martin Luther King Jr.

“Boy,” the brief said, is either a proxy for or “at the very least a close cousin” of the most charged racial epithet.

                      *     *     *

Stephen B. Bright, the president of the Southern Center for Human Rights, was less magnanimous than Mr. Clemon. He said the case demonstrated “how judges manipulate facts and law to make a case come out the way they want it to.”  

“The new opinion flatly contradicts the first one in several places,” Mr. Bright said.  

The new decision followed unflattering news coverage of the earlier one and might have been prompted by the possibility of a rebuke from the full 11th Circuit.

Again, like my prior post on former Illinois Governor Rod Blagojevich (from an interview I gave to The Wall Street Journal), this points to the fact that judges are not sitting in ivory towers shut off the world around them. Extrajudicial forces can have an enormous impact on the law and on justices -- and lawyers and parties that understand this will ultimately be more successful in reaching their legal, business and personal goals.