The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Tracie Bryant, Partner, and Matthew Summers, Associate—Litigation
Tracie Bryant is a partner in Kirkland’s Washington, DC, office. Her practice focuses on complex commercial litigation before federal and state courts across the country. Tracie represents clients in litigation matters involving contracts, antitrust, consumer products, false advertising, trade secret, defamation, and constitutional law. She has extensive experience with class action litigation and representing clients seeking or defending against temporary injunctive relief. Tracie also maintains a diverse pro bono practice and was awarded the 2014 Kirkland & Ellis Washington Pro Bono Service Award. She received her B.A. with honors from Stanford University and her J.D. from Harvard Law School.
Matthew Summers is a litigation associate in Kirkland’s Los Angeles office. Matthew’s practice focuses on all phases of complex litigation in both state and federal courts. His litigation experience includes contract disputes, government investigations, product liability defense, mass tort and class action defense, and white-collar criminal defense. He has been a member of trial teams that secured “Top Defense Verdict” honors in 2018 and 2019 from the Daily Journal. Matthew also has an active pro bono practice. He received a B.A. in Political Science from the University of Southern California and his J.D. from the University of Chicago Law School.
Describe your practice area and what it entails.
Tracie: Most broadly, general litigation entails settling legal disputes in a court of law or through arbitration. Litigators at Kirkland are involved in every aspect of the litigation matter. We may start our work by advising clients even before a complaint is filed. Once a complaint is filed, we work on briefing related to the case, manage discovery, and then prepare and try the case. At Kirkland, the litigation team often works on any appeals that may follow as well. As a general litigator at Kirkland, I work on a wide variety of subject areas, including antitrust, false advertising, class actions, and other commercial disputes.
Matthew: Kirkland’s General Litigation group handles any type of litigation—except intellectual property, which has its own practice. We handle all phases of litigation, from evaluating a case before litigation is instituted through trial and appeal. Kirkland also conducts internal corporate investigations and represents clients facing governmental investigations.
What types of clients do you represent?
Tracie: My clients are just as varied as my practice area. I’ve represented telecommunications companies like Verizon, health care companies like Abbott Laboratories, building supply manufacturers like JELD-WEN, Inc., and everything in between. Most of my clients are large Fortune 500 corporations, but others are small startups or even individuals.
Matthew: Kirkland’s client base spans the full spectrum—from the largest corporations in the world to single individuals. This exposes Kirkland associates to a diverse group of companies and individuals facing diverse challenges. In my practice, I have had the opportunity to represent clients ranging from a technology entrepreneur to the recently homeless to large companies like Johnson & Johnson, Boeing, RBS, Macy’s, Syngenta, Aerojet Rocketdyne, and Toll Brothers, among others.
What types of cases/deals do you work on?
Tracie: Most litigation matters are resolved before trial, but Kirkland is often retained when the client believes that a case is likely going to be tried. I work on getting cases “trial-ready.” That focus begins early in the case with dispositive motions, which may result in the case being dismissed completely or narrowed. Assuming the case proceeds past that stage, I learn the facts of the case, collect the best documents supporting my client’s position, and work with witnesses who will be involved in telling my client’s story at trial.
Matthew: Kirkland’s General Litigation group has given me the opportunity to work on a variety of different cases in various stages of litigation. The firm’s open-assignment system allows me to work on matters that interest me, including trial-ready cases in the products liability and mass tort space, as well as large-scale general commercial litigation that is in the early stages of discovery. For example, after my first year, I wanted to get significant trial experience, so I reached out to a partner who handles trial ready products liability cases and ended up going to trial five times over the next two years on behalf of Johnson & Johnson.
How did you choose this practice area?
Tracie: I’ve wanted to be a lawyer for as long as I can remember and always assumed I’d do some kind of “Law & Order”–style trial work. I decided on my practice area after law school—I clerked in a federal district court, and I was finally able to experience litigation firsthand. I loved everything about it: the legal arguments, the process, and the energy of the courtroom.
Matthew: I wanted exposure to different types of cases and challenges to broaden my knowledge of the law and sharpen my skill set across all phases of litigation, and Kirkland’s general litigation group gave me the best opportunity to do that.
What is a typical day like and/or what are some common tasks you perform?
Tracie: Every day is different and depends on the stage of my cases. It’s hard to generalize, but I usually spend some part of my day thinking through the strategy for cases and discussing it with my colleagues, part of the day talking to clients about their cases, and then a portion of my day writing or revising briefs or other correspondence.
Matthew: Right now, we are in the middle of intensive fact discovery for a trial set for next year, so my typical day includes preparing for and taking/defending depositions, researching and drafting pre-trial motions and briefs, participating in meet and confers with opposing counsel, coordinating the review and production of documents, and preparing for expert discovery.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Tracie: In litigation, there is a lot of “on the job” training, but I found that Civil Procedure and Evidence are the two classes I call upon most often. I also recommend focusing on opportunities to improve your legal writing through classes, journals, or work as a research assistant. In addition, if you have an opportunity to clerk for a district court judge, it helps you learn a lot about the litigation process and how courts work through cases.
Matthew: Legal research and writing is a critical skill for any litigator. Very often, cases are won or lost on the papers. I recommend classes and programs focused on developing and honing your written advocacy skills. An understanding of procedure, and how that procedure plays out in practice, is also important. Classes and programs focused on pre-trial and trial civil procedure, along with on-your-feet trial advocacy, are beneficial to any litigator.
What is the most challenging aspect of practicing in this area?
Tracie: Dealing with the unexpected. A lot of litigation is thinking on your feet, whether it’s on the phone with opposing counsel, in a deposition, or at a hearing. No matter how much you prepare, there will be something that will happen that you weren’t expecting but you need to be ready to deal with. It’s part of the challenge but also a lot of the fun!
Matthew: Clients come to Kirkland when they are facing the most complex legal challenges, often times with bet-the-company stakes. This requires Kirkland attorneys to think critically to develop creative, sometimes novel, arguments and strategy to achieve the best possible resolution for the client.
What is unique about your practice area at your firm?
Tracie: Unlike most firms, Kirkland truly has a “general litigation” practice area. General litigators at Kirkland are expected to be able to litigate any case in any subject matter, so you won’t see many narrowly defined practice groups on Kirkland’s website such as antitrust litigation or restructuring litigation; those all fall under the “litigation” umbrella. With that said, some people do find that they prefer certain subject matters so they elect to work primarily on litigation matters in those areas. However, Kirkland doesn’t ever require general litigators to specialize in a certain subject matter, and many people work on a variety of cases throughout their careers.
Matthew: What sets Kirkland apart from our peer firms is the level of experience and responsibility given to junior attorneys. It is not uncommon to take your first deposition or argue your first motion as a first- or second-year associate. In my interactions with opposing counsel, whether it is on the other side of a deposition, oral argument, or meet and confer, I am almost always interfacing with senior partners. Kirkland invests incredible time and resources in developing its associates, which, in turn, allows the firm to trust associates with work traditionally reserved for partners.
What are some typical tasks that a junior lawyer would perform in this practice area?
Tracie: Our junior lawyers participate in every aspect of the case. We look for them to research; write; and help prepare senior attorneys for depositions, meetings and hearings—but also, very early, to start taking their own depositions and running meetings themselves.
Matthew: Typical tasks for a junior associate include conducting legal research, drafting offensive and defensive discovery, preparing deposition and trial examination outlines, and drafting briefs and motions. As mentioned above, junior associates should not be surprised if preparing a deposition outline quickly turns into them taking the deposition. Or drafting a motion ends up with them in front of the court arguing the same. My experience is illustrative. Within my first two years at Kirkland, I took and defended my first depositions, argued before the Ninth Circuit, argued my first pre-trial motion, and sat at counsel’s table and second-chaired multiple cross and direct examinations at trial.
In what ways has the coronavirus pandemic affected your practice? How have you adjusted to lawyering in the wake of COVID-19?
Tracie: Immediately, deadlines and trial dates were all moved back, and many of my cases slowed down. After it became clear that the coronavirus pandemic wasn’t going away anytime soon, my cases continued to progress as they had before. The biggest ongoing differences are that I never travel anymore, but I see my clients and witnesses more often because everyone has grown accustomed to video calls.
Matthew: COVID has forced us all to adapt to the remote working environment, and quickly. Kirkland made the transition relatively seamless by providing us with the technology and tools necessary to work from home. While taking a deposition over Zoom took some getting used to, the majority of my practice has been unaffected—a credit to Kirkland’s incredible support staff.