Lawyers are great at asking questions, but how are they at answering them? Bloomberg Law is talking with lawyers and other legal industry players at the top of their fields to find out what makes them tick, what challenges they face, and how they do what they do.
Jamie Welton is one of four litigation partners who left Barnes & Thornburg to open Duane Morris’s Dallas office earlier this month.
The partners’ strategy for winning new business in their areas of focus, including healthcare and financial services, involves “winning complex cases efficiently,” Welton says.
The commercial litigator who has worked on behalf of bankruptcy trustees says the nature of that business has changed during the coronavirus pandemic, he says. Compared with the financial crisis of 2007-2009, there is “far more credit available to provide the flexibility to restructure.”
Bloomberg Law spoke with Welton about his concerns about a False Claims Act decision; about how locating one document among a trove of papers resulted in a $64 million litigation win; and how new lawyers should worry less about billable hours and more about providing invaluable work for their firm.
This conversation has been edited for clarity and length.
Bloomberg Law: Which sectors will the new Dallas office focus on? What is the strategy for obtaining the business?
Jamie Welton: The office will focus on healthcare, commercial litigation, financial services, and related white collar. Our strategy is to continue to add value to our clients by winning complex cases efficiently and working collaboratively with our clients to maximize their abilities and handle whatever problems or obstacles stand in their way.
BL: What specifically are your strategies? What’s the biggest challenge?
JW: My specific strategies are simple: Winning efficiently. That said, the biggest challenge for me is managing costs and expectations, and the sycophancy of competitors.
BL: What’s your best war story from your legal career?
JW: We had issued a subpoena for documents to a large law firm regarding an M&A transaction it had worked on for the issuer of certain securities. It was a breach of contract case accusing defendants of refusing to settle a securities trade after becoming privy to material nonpublic inside information regarding the issuer.
It took two motions to compel the law firm to produce the “smoking gun” evidencing the “tip.” It was a two-page “memorandum to file” drafted by the head of the law firm’s corporate department, produced in the midst of 10-plus boxes of irrelevant drafts of deal documents.
The documents arrived late on a Friday evening. I was the only person in the office when they were delivered after hours. I stayed to go through them and discovered the smoking gun, alone in the office, shortly before midnight.
Two years later I would publish that document—and only that document— to a jury that had been inundated with documents piled at their feet from the other party.
At first, the court encouraged me to forego publishing it to the jury and move along with the cross examination. But it quickly realized what a crucial piece of evidence it was and allowed us to give each juror a copy of the document to examine in detail.
The jury reached its verdict after the three-week trial in less than three hours, awarding more than $64 million in damages. After all this time and a hundred plus cases later, I can still remember the feeling of exuberance when I discovered that one document.
BL: What legal question keeps you up at night?
JW: I am troubled by the current circuit split in False Claims Act cases which the Supreme Court declined to resolve recently.
The United States Court of Appeals for the Third Circuit ruled in U.S. v. Care Alternatives that relators in a hospice eligibility case did not have to show “objective falsity” in the presentment of a false claim. They could rely on the testimony of a paid medical expert to proffer a post hoc clinical judgment that differed from the physician in the field that certified a patient as being eligible for the Medicare Hospice Benefit, (i.e., the physician’s clinical judgment that a patient has a life expectancy of six months or less).
As anyone that has witnessed a loved one succumb to a terminal illness can attest, prognostication of life expectancy is most certainly not an exact science. And, having had a parent benefit greatly from the gift of hospice myself, I am very concerned that the ruling in U.S. v. Care Alternatives may hinder the ability of hospice providers to service terminally ill patients and their families out of fear of being second-guessed by the qui tam bar.
BL: What are differences between pandemic-related bankruptcies and ones that happened during the recession from 2007 to 2009?
JW: There was significantly more fast and furious litigation associated with the financial crisis bankruptcies than there is to date in pandemic related bankruptcies, which are more focused on traditional reorganization or small business liquidations.
During the financial crisis, there were intense pre-bankruptcy injunctive battles over financial asset seizures and fire sales, which often precipitated the bankruptcies.
In the bankruptcy cases themselves, there was a panoply of litigation by and against the warehouse lenders that financed home loans, the take-out investors that purchased the loan pools and securitized them, and other ancillary parties involved in the loan origination process.
The litigation will come though, most likely in the form of FCA cases, white collar investigations, business disputes related to the flood of PPE procurement in 2020, and commercial lease and financing arrangements and guarantees.
But during the pandemic, there have been more opportunities for workouts, particularly with the assistance rolled out by the federal government and temporary stays on foreclosure proceedings at the local level. These presented opportunities to work through the distress associated with state-mandated shutdowns outside of bankruptcy in many instances.
In short, the liquidity issues in the pandemic have been more temporary, and there is far more credit available to provide the flexibility to restructure.
BL: Does the firm have specific diversity targets, is the firm meeting those targets and what does it still need to do to improve diversity?
JW: One initiative I was particularly impressed with was the firm’s participation in the Mansfield 2021 certification program. Through the program, the firm will consider women, attorneys of color, LGBTQ attorneys and/or attorneys with disabilities for at least 30 percent of its leadership and governance roles, senior lateral positions, equity partner promotions and more.
In addition to a formal mentoring system, the firm also requires all diversity and inclusion committee members to mentor one or two diverse associates in the firm. The mentors provide feedback on how diverse associates are doing. The goal of the committee is to be proactive and intervene whenever there is an associate who is experiencing difficulty for any reason.
BL: I’m a new associate, fresh out of law school, what should I do to stand out and advance my career in the best way possible?
JW: Be a team player. No task is too small. Get involved in cases you want to work on in any way you can and carve yourself a foothold from there.
The billable hours will come with competency and the value the associate brings to the team. Fight the pressure to bill hours and hit metrics, and instead focus on the value you bring to a matter. The metrics will take care of themselves.