The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Kieran Gostin, Partner, and Betsy Henthorne, Associate
Kieran Gostin is a partner at Wilkinson Walsh. Since joining Wilkinson Walsh at the end of 2016, Kieran has represented company defendants in five trials that went to verdict, with each case resulting in a defense judgment. Before joining Wilkinson Walsh as an associate, Kieran was a trial attorney in the Federal Programs Branch of the U.S. Department of Justice, where he defended the legality of federal statutes and executive agency action. Last year, Law360 selected Kieran as a Rising Star, an honor given to “attorneys under 40 whose legal accomplishments transcend their age.”
Betsy Henthorne is an associate at Wilkinson Walsh. After graduating from Georgetown Law, Betsy clerked on the Southern District of New York, the D.C. Circuit, and the U.S. Supreme Court. Since joining the firm, Betsy has worked on numerous paying and pro bono matters at various stages, including discovery, dispositive motions, trial, and post-conviction. In 2019, she was part of the trial team that won a complete defense verdict in a multi-state consumer fraud class action, and she and another associate secured the release of a pro bono client who had been given a life sentence at 16 years old.
Describe your practice area and what it entails.
We are a trial litigation boutique and pride ourselves on being able to take any case to trial. The firm’s attorneys have now tried more than 100 cases in a wide variety of areas, including almost 20 trials since the firm opened its doors in
While we take cases at every stage, we are often hired to represent clients at or near the end of discovery. This means our cases are normally ramping up for trial, and our job is to focus on taking what is often a very broad record and simplifying it into a compelling narrative that will be persuasive to a jury.
What types of clients do you represent?
The firm represents a wide variety of clients—including large companies (Bayer, Allergan, Georgia Pacific), sports associations (NFL, NCAA), criminal defendants, and pro bono clients. The pro bono cases are some of the most rewarding, and we have been lucky enough to work together on a substantial pro bono matter representing incarcerated people in Missouri seeking treatment for hepatitis C.
What types of cases/deals do you work on?
Like all attorneys at our firm, we are focused on cases headed toward trial. In terms of subject matter, there is no single type of case on which we work. As a firm, we are willing to take any case to trial, but over the past several years we have had antitrust, class action, criminal, products liability, and sports-related trials. Everybody at the firm floats between these areas and is exposed to all aspects of trial litigation.
How did you choose this practice area?
Kieran: I was working at the DOJ, and my practice mostly focused on briefing and arguing dispositive motions involving constitutional law and statutory interpretation. I joined Wilkinson Walsh because I wanted a new challenge and to learn from some of the best trial lawyers in the country on how they approach cases. And I am glad I did because it has changed the way I practice as a lawyer. Going to trial regularly gives you a totally different perspective on every other part of a case—including how to take depositions, how to deal with opposing counsel, and even how you argue in front of judges.
Betsy: I knew in law school that I wanted to focus on litigation. I did a trial-focused clinic and interned in two public defenders’ offices and found I enjoyed being in the courtroom, working with witnesses, and making deals with opposing counsel. I particularly loved the problem-solving and strategy aspects of trial work. So, after finishing my clerkships, I looked for a firm where I could do that kind of work with smart people on tough cases. That’s Wilkinson Walsh in a nutshell.
What is a typical day like and/or what are some common tasks you perform?
No two days are the same, and a lot of what we do depends on the stage of the case. As a general matter, we focus a lot of our time on preparing our cases for trial and then going to trial.
Preparing for trial covers a lot of ground, but on any given day, we might be meeting with clients, participating in internal strategy meetings, prepping witnesses for cross, developing direct and cross examinations, preparing opening statements, or drafting dispositive or trial-related briefs.
The best part of our job is actually going to trial. The hours can be long, but every day brings a lot of excitement. Regardless of which lawyer is standing up in the courtroom, the entire team has to work together to analyze the evidence as it comes in, react, and provide our best response. It is a very collaborative process that is really quite unlike anything else we do as lawyers.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
There is no substitute for getting trial experience. We would recommend doing anything you can to get that experience, whether it be working at a trial firm over the summer, doing a law school clinic or government internship that gives you exposure to trials, or even doing moot court or mock trial in law school. The most important indicator of whether somebody will be a successful trial lawyer is whether he or she has a passion for the work. The best advice we can give to an attorney who is thinking about becoming a trial lawyer is to get out there and see what it is actually like.
What misconceptions exist about your practice area?
One of the biggest misconceptions from candidates applying to our firm is that writing is not an important skill for trial lawyers. We both spend a lot of time writing, and it is still the chief way that we communicate with the court. Sometimes we are writing a lot because our firm is taking the lead on dispositive briefing, but there is also an incredible amount of other briefing that occurs before and during trial. That briefing can have a significant effect on the course of trial—from influencing the evidence that is admitted by the court to shaping the instructions that are read to the jury. But it also has a more intangible effect, as you educate the judge on the merits of your case and hopefully win her or him over to your side.
What is unique about your practice area at your firm?
Wilkinson Walsh’s relentless focus on trial is part of what makes working here so rewarding. While many firms and lawyers view trial as a last resort, we are thinking about our presentation to the jury from the moment a complaint is filed, or whenever a case first comes to the firm. We develop our trial themes early and use them to guide our decision-making at every stage.
That means we do everything, from depositions to document discovery to the briefing of dispositive motions, with an eye towards our ultimate trial strategy. To take just one example, we don’t just look for experts who agree with our position—we want someone with a compelling story, who will be able to connect with jurors and explain difficult concepts in a way regular people can understand.
Being able to make good arguments will only get you so far—we want to make our case come alive for the jury. This approach is more difficult but also a lot more interesting and a lot more fun.
What are some typical tasks that a junior lawyer would perform in this practice area?
Betsy: Beth (Wilkinson), Alex (Walsh), and Brian (Stekloff) always say they founded this firm to train the next generation of trial lawyers. And they mean it. Our business model, which consists exclusively of flat fees, means associates get a lot of exposure to clients, witnesses, and opposing counsel. Even junior associates have a seat at the table for strategy and witness meetings, and associate input is always taken seriously. Associates work closely with witnesses in a variety of contexts. This includes preparing for and attending in-person meetings, helping vet expert reports and other materials, drafting outlines for depositions and trial, working with witnesses to prepare PowerPoint presentations for trial, and writing strategy memos. Associates also help with opening statements and closing arguments at trial, conduct research (legal and otherwise—ask us about how associates’ factual research has helped solidify multiple trial victories!), and draft briefs. The bottom line is we aren’t wasting time billing hours or generating busy work—everyone is focused on the case we collectively will present to the jury.
How is practicing litigation in a boutique different from practicing in a large law firm?
Most of the differences are driven by the practical implications of having fewer attorneys—we have around 40 lawyers; whereas, large law firms can have hundreds if not thousands of lawyers. That means all of our attorneys have to be willing to dig in and participate in the management of the firm—whether by serving on the technology committee or helping to analyze potential business opportunities. But it also means you have a bigger voice right from the start: Many of the actions we have taken as a firm (both at trial and otherwise) were first suggested by some of our most junior associates.
The other big difference is a personal one. At a smaller firm, particularly when you are going to trial together on a regular basis, you end up knowing everyone else really well. That creates a different type of environment and encourages the feeling that you and your colleagues are teammates.