Pro Bono Innovators 2022 Honoree Kaplan Hecker & Fink

Your firm’s work included a victory in the Sines v. Kessler case (along with Paul Weiss and Cooley) scoring the $26 million verdict for clients injured at the 2017 “Unite the Right” rally and on Covid-related executive orders in Kentucky and Virginia. How did your firm strategize on how to approach these matters?

Our firm was founded on the principle that there always must be someone to stand up to a bully. After the horrific White supremacist violence in Charlottesville in 2017—followed by President Trump’s comment that there were “very fine people on both sides”—it became apparent that the Civil Rights Division of the Department of Justice was not going to act. So, we decided that we would instead, and in October of 2017, we filed a groundbreaking civil rights lawsuit against the organizers of the “Unite the Right” rally.

We’ve continued to look for opportunities to add a unique contribution to developing law or to step in when it appears that no one else will in the face of other instances of injustice. Whether we are defending Kentucky’s critical public health measures amid the Covid-19 pandemic or standing up for LGBTQ students in Florida against the cruel and unconstitutional “Don’t Say Gay” law intended to discriminate against them in public schools, we thought we could make a real impact and believed we had the expertise and capability to do so.

What were the most innovative aspects of these matters in your view? And who took the lead on driving innovation with the work?

One innovative aspect of the Charlottesville case was the legal theory we used: We dusted off the 150-year-old Ku Klux Klan Act of 1871—a law originally enacted amid post-Civil War racial violence—to allege a conspiracy to commit racially motivated violence. We also used a similar statute under Virginia law.

Another innovative aspect of this case was our approach to discovery, which relied on a set of messages and posts that had been leaked from various “dark web” social media platforms. Putting all those posts together—including additional ones we got from issuing subpoenas —is how we actually built the case and showed the conspiracy at work in real time.

Given the eerie similarities between Charlottesville and what happened on Jan. 6, we are proud to see that many of the cases involving injuries to plaintiffs on Jan. 6 (not to mention the House January 6 Committee itself) have used a similar methodology in approaching the huge volume of disparate sources of evidence in such cases.

Tell us more about the impact of the matters on the local, national, and/or global level.

We did not know when we filed in Charlottesville that there would be a long series of racist shootings committed by people with the same ideologies using the same right-wing social media websites as the defendants in our case. But that unfortunately is what happened—in Buffalo, Pittsburgh, and elsewhere.

That makes the precedent we set in Charlottesville—our litigation strategy, the factual record we created, and the verdict—all the more important. But we didn’t stop there. We also have challenged the unconstitutional conditions of confinement at a federal prison in Brooklyn; obtained dismissal of defamation claims brought by Rep. Devin Nunes against [GOP strategist] Liz Mairfor her political criticism; and successfully represented the governors of Pennsylvania and Wisconsin at the US Supreme Court in high-stakes election cases.

Why do you think your team achieved successful results?
First and foremost, in all of these cases, we had brave plaintiffs willing to stand up against injustice and a team of lawyers committed to marshaling the best possible arguments on their behalf. That has consistently proven to be a winning combination. We could not have brought these cases without the courage of our clients. And in all of these cases, the law and, in my opinion, principle, were strongly on our side.

In addition, a big part of our firm’s not-so “secret sauce” is that our commitment to public interest work, alongside our commercial and white-collar practices, allows us to attract some of the strongest young lawyers in the country. Our ability to litigate so successfully comes from the extraordinary skill and creativity of every single lawyer at our firm.

Take us back to the time the matters were resolved. What did you do to celebrate?

I would be lying if I did not admit that a lot of beer and not-so-healthy fried food was consumed on the evening after closing arguments in the Charlottesville case. There was also a lot of laughter.

When a lawyer is under the kind of stress we were under for weeks on end during the Charlottesville trial, there needs to be an outlet. It is vitally important that lawyers live full lives, not only for themselves, but to have the proper perspective on what we do every day.

Responses provided by Kaplan Hecker & Fink founding partner Roberta Kaplan.

—With assistance from Kibkabe Araya.