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Sizing Up a Small Firm The supply of high court cases is shrinking -- but the demand for a piece of that prestigious docket has never been more fierce LEGALTIMES.COM - WEEK OF JANUARY 5, 2000 A little more than three years ago, Charles Cooper and Michael A. Carvin, both former Reagan administration Justice Department officials then at D.C.'s Shaw Pittman, took the always risky step of breaking away from the mother firm and opening a litigation boutique. Today, Cooper, Carvin & Rosenthal has found a niche on the D.C. law scene, pursuing a wide variety of high-stakes cases. In an era in which consolidation and the megafirm are the buzzwords, that wasn't necessarily a predictable outcome. Jonathan Groner, the editor of Legaltimes.com, recently interviewed Cooper via e-mail and asked him about his start-up firm. The following is a transcript of their conversation. Legaltimes.com: When you left Shaw Pittman and founded your new firm, what were the biggest day-to-day problems that you faced in the first 90 days or so? How were these problems resolved? Cooper: When Mike and I opened the firm three years ago, we had very few of the administrative headaches that typically hamper such an event. We had planned for the opening weeks in advance, and somehow managed to get the files moved and the office equipped and functioning during the last weekend in September 1996. Cooper & opened its doors with five lawyers on Oct. 1 and, miraculously, the telephones, computers, copiers, etc. worked. We filed our first federal appellate brief two days later. Our biggest problem during those hectic but exhilarating early days was that we needed more help. By the end of our first full year, the firm had grown to 13 lawyers and had a new name - Cooper, Carvin & Rosenthal. Legaltimes.com: The pundits seem to be saying that these days, bigger is better in the legal world and that the era of the litigation boutique is over. What advantages did you see when you made your decision to break away from a large firm to form a small one? Cooper: The pundits (and the big firms) have been saying that for a long time. I think that there has actually been a resurgence of the litigating boutique in recent years, inspired to some extent by technological advances that have enabled small firms to handle large, complex cases. Our firm now has 16 full-time permanent lawyers, approximately 20 contract lawyers who form our document discovery teams, and a cadre of litigation paralegals. Our litigation practice is approximately 65 percent trial work and 35 percent appellate work. At the trial level, during 1999 alone our permanent lawyers took or defended approximately 200 depositions of both fact and expert witnesses, in matters ranging from breach of contract and takings claims against the federal government, to civil rights cases, to corporate commercial disputes. Many of these cases were paper intensive, involving literally millions of documents, which we were able to index, store, and search electronically. In our appellate practice, during the past three years we have represented parties in nine cases before the Supreme Court, and have handled many more cases in federal and state courts of appeals. In most of our cases, both at the trial and appellate levels, we are litigating against either the Justice Department or megafirms. We believe that we can handle any case at least as effectively and efficiently as our friends in megafirms, although our firm obviously can't handle as many cases as a megafirm can. Our sole purpose in forming the firm, like anyone who makes an important career move, was to maximize our professional happiness. Most importantly, we believed that starting a litigation boutique would permit us to handle the same kinds of interesting, important cases in a collegial, small firm environment. We also thought that by starting our own firm, we could control our growth to ensure that every lawyer at the firm not only can hit the long ball, but also can enjoy a good laugh. Finally, we hoped that a small firm would have economic advantages, allowing us to eliminate large firm bureaucracy and waste, and to take a flexible approach to structuring fee arrangements. Legaltimes.com: You clearly have had to keep up with the big firms in technology and in amassing the necessary number of people to staff your cases, and you have done so apparently quite successfully. Have you also had to match the big firms in associate salaries? And is your heavy use of presumably much lower-paid contract lawyers, where large firms might deploy expensive associates, your answer to the ratcheting salary problem that every top-drawer firm, large and small, is facing today? Cooper: Yes, we do match the big firms in associate salaries; beyond that, we have a bonus system designed to ensure that if our firm is especially prosperous, so also are our associates. Our use of well-trained, closely supervised contract lawyers to assist with document discovery is designed to hold down the ratcheting litigation costs of our clients. In document-intensive litigation, deploying expensive litigation associates to perform the initial review, indexing, and electronic coding of documents would dramatically increase the client's litigation expense. Legaltimes.com: What are the most successful techniques that you and your partners use to attract new clients to the firm? Cooper: I know of only one technique that attracts clients, old or new, to a litigation practice on a sustained basis, and that is to consistently provide first-rate legal advice and services. If you win, they will come. True, the familiar techniques of publishing articles, giving speeches, participating in bar or specialized trade activities, etc., are also important methods of establishing one's reputation for expertise in a particular legal area and, therefore, of helping to draw the attention of potential clients. But over the long term, performance is the only thing that really matters. This is especially true, I think, for young litigation boutiques, which typically receive a substantial amount of business through client referrals from larger firms. We have been truly gratified by the warm reception and support that our firm has received from our many friends in the larger firms in the Washington legal community. Legaltimes.com: You and your partner Michael A. Carvin held key positions in the Reagan administration and were known as committed political conservatives. Has your firm taken any cases with a conservative ideological aspect - including pro bono cases - or has it pretty much stayed away from hot-button cases? Cooper: During the decade since Mike and I left the Justice Department, we certainly have not shied away from cases involving politically controversial issues. Indeed, in keeping with our experience as officials in both the Civil Rights Division and the Office of Legal Counsel at the Justice Department, we have litigated a large number of cases involving constitutional issues and civil rights issues, which are politically controversial almost by definition. In recent times, for example, we have represented: (1) the State of Hawaii before the Hawaii Supreme Court in the gay marriage case; (2) the intervening defendant in a case defending the constitutionality of California's Proposition 209, which prohibited the use of racial and gender preferences in education, employment, and contracting; (3) Congressman John Boehner in connection with his suit against Congressman Jim McDermott for illegally disseminating a tape recording of a phone conversation between Speaker Newt Gingrich and Boehner; and (4) individual voters in a case in which the Supreme Court invalidated the Census Bureau's plan to utilize statistical sampling in the 2000 Census. On the other hand, many of our conservative friends were quite unhappy with us for representing (along with Lloyd Cutler, Alan Morrison, and Michael Davidson) Senators Robert Byrd, Daniel Patrick Moynihan, and Carl Levin in their constitutional challenge to the Line Item Veto Act (we also represented the City of New York, et al., in the second, successful Line Item Veto case). And we recently represented before the Supreme Court an individual FOIA claimant seeking disclosure of a document classified under the national security exemption. In that case we were allied with the Reporters Committee for Freedom of the Press, the National Security Archive, and other liberal groups. Our firm also currently represents workers at the Paducah Gaseous Diffusion Plant in a qui tam action seeking recovery against government contractors for, among other things, fraudulently exposing the workers to plutonium and other deadly radioactive substances. The point is that, although the bulk of our practice is commercial litigation, we have been involved in a wide variety of high-profile public policy cases, representing parties on both sides of the political aisle. If we believe that a cause is just and well-founded in the law, we will take it. Legaltimes.com: Many observers have suggested that for economic and other reasons, large firms end up doing the vast bulk of the pro bono work accomplished by D.C. lawyers. Has your firm made any concerted effort to do pro bono work or at least to encourage it and make allowances for it among those attorneys who are interested? Cooper: We believe in some causes enough to make them our own. During the past three years, our firm has handled close to 20 pro bono matters, large and small. For example, our involvement in the Line Item Veto cases was pro bono. I also represented, pro bono, former Assistant Secretary of State Elliott Abrams, my Reagan administration colleague and friend, in connection with bar disciplinary proceedings relating to his Iran-Contra involvements. Currently, we are litigating two pro bono cases that warrant mention. In Hatter v. United States, my partner Steve Rosenthal represents over 100 federal judges in a compensation clause challenge to the reduction of their compensation due to the imposition of Social Security taxes enacted after their appointments. Our firm also currently represents three residents of Berkeley, California (dubbed the "Berkeley 3" by the national press) in a First Amendment Bivens action against officials of the U.S. Department of Housing and Urban Development for official actions taken to discourage our clients from engaging in traditional speech activities protesting a HUD-funded project. In both Hatter and "Berkeley 3" we have won favorable liability determinations. While it is probably true that the large law firms carry the lion's share of the load in discharging the bar's pro bono responsibilities, our firm has annually committed hundreds of thousands of dollars in professional time and resources to pro bono cases. We are satisfied that we are doing our fair share. To view this article online at the Legal Times website, click here. Reprinted with permission of Legal Times, 1730 M St., N.W., Suite 802, Washington, D.C. 20036 Phone: 202-457-0686 Copyright, Legal Times, 1999 |
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