Litigation. Trial Runs

• Author: Stephanie Francis Ward
• Pages: 24-25

Business of Law | LITIGATION

Kirkland & Ellis

litigation partner

James Basile speaks

at a KITA program.

LITIGATION

Trial Runs

For Kirkland junior associates,

mock trial program creates court

experience

BY STEPHANIE FRANCIS WARD

Photo by Leslie Barbaro

2018 revenues, making it the biggest

U.S. law rm by gross revenue, ac-

cording to the Am Law 100 rankings.

Its work over the years has included

representation of BP in the Deepwater

Horizon oil spill, Volkswagen during its

emissions scandal and several trans-

gender soldiers challenging the Trump

administration’s ban on allowing them

to serve in the military.

‘Things will go wrong’

“Rather than a young associate getting

training on the client’s dime, they get it

at the rm’s expense,” Basile says. He

would not say how much the program

costs, but disclosed that the Chicago

and D.C. programs take up more than

9,000 hours in attorney time and in-

clude 90 partners, who besides serving

as judges provide training and perfor-

mance critiques.

“People’s experience with KITA is

that things will go wrong, but the nice

thing is that nobody is going to lose

any money when things go wrong,”

says Basile, who has handled litigation

matters for clients including Facebook,

JPMorgan Chase, Discover Financial

and 24 Hour Fitness.

According to Basile, it’s possible to

replicate surprises that can come up in

real trials.

“Just like with regular judges, you

never know how things will come out.

Also, just like in the real world, wit-

nesses vary on how effective they are,

and you don’t know the strategy your

opponent will take,” he says.

When asked why the rm just didn’t

send its associates to trial skills pro-

grams offered by the National Institute

of Trial Advocacy, Basile replied that in

the 1970s, many Kirkland partners were

among the rst group of trial lawyers

recruited to participate in NITA, and

they thought that bringing a similar

program in-house made a lot of sense.

The KITA program has been offered for

41 years.

In terms of who gets to go to court

at Kirkland, Basile says it’s the client’s

choice, and he advocates for associates

to be included.

At this point, it’s a given

that junior associates at big

rms will struggle for actual

court time. Cases rarely go

to trial anymore, while clients frequent-

ly demand experienced attorneys in

court for the cases that do go forward.

For junior litigators, most of their ex-

posure to trial work comes in the form

of doing research, writing briefs and

conducting e-discovery.

Kirkland & Ellis came up with a

solution. The rm created the Kirkland

Institute for Trial Advocacy, a lengthy

civil mock trial program for associates

that includes professional actors as

witnesses, partners playing judges and

hired jurors. Expert witnesses partici-

pate free of charge.

For rst-year associates, KITA offers

direct- and cross-examination drills. In

the years that follow, associates get to

do mock bench and jury trials, some-

times with multiple parties. One mock

trial takes place in Chicago and another

in Washington, D.C. Both are a week

long.

Associates are expected to behave as

if they were involved in a real trial and

not a mock one. “Part of what we dis-

cuss with associates is taking the time to

both prepare their witnesses adequately

for their testimony, as one would at a

real trial, and make a personal connec-

tion with them so that they can best

communicate in the courtroom,” says

James F. Basile, the Kirkland partner in

charge of the KITA program.

Kirkland states that it has a trial-

ready philosophy, and its lawyers have

opportunities to appear in court earlier

in their careers than they would at other

rms.

The law rm had $3.76 billion in

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ABA JOURNAL | SEPTEMBER–OCTOBER 2019