The Key To Success In International Arbitration And Litigation? Collaboration Across Practice Groups

Saturday, November 1, 2008 - 00:00

Editor: Mr. Kehoe, would you tell our readers something about your professional experience?

Kehoe : I am a commercial litigator and arbitration practitioner, both domestic and international. In recent years my practice has focused mostly on international arbitration, but I still appear in court on domestic litigation matters as well.

Prior to joining King & Spalding in 1993 I was with Skadden Arps in New York, where my primary focus was on mergers and acquisitions. King & Spalding's decision to open a New York office at that time gave me an opportunity to enter on the ground floor of a growing enterprise. Since I joined the firm, our New York office has grown from 11 attorneys to over 100. It has been an exciting time.

Editor: Would you give us an overview of the New York office's business litigation group?

Kehoe: We have six partners and 20 associates. The group's principal areas of activity include financial services litigation, director and officer liability defense, international arbitration and litigation, and a variety of defense work for professional services firms, including accounting firms. While much of our work is predictably New York-centric, we work with lawyers from all of the firm's offices around the world on a constant basis. I believe that one of the firm's great strengths is the ability of lawyers in each office to call upon the expertise and personnel in other offices. This interdependence is one of the key factors behind the firm's success, in my assessment.

In recent years the firm has made a conscious decision to focus on the sector and market areas where we already have an established and highly regarded practice. Each of our strategic areas of focus in New York fits squarely within the firm's overall profitable growth plan, particularly on the international front.

Editor: How does the group handle appeals?

Kehoe: A good trial lawyer is focused on winning the case. Sometimes the trial lawyer is not as focused on appellate issues as he or she should be. A good appellate lawyer wants to make the trial decision hold up on appeal or, having lost below, to see it overturned. The skills involved are not necessarily in conflict, but they are different. Our New York litigation group handles appeals routinely, but in that process we call upon specialized appellate lawyers in the firm.

Editor: How has the explosion in discovery costs - I am thinking of e-discovery - impacted the practice?

Kehoe : It certainly has impacted our practice in the large securities cases. My partner Mike Malone currently is handling a class action matter in which discovery has become both unwieldy and expensive. Fortunately for our clients who need it, King & Spalding has been at the forefront of developing high-quality, cost-effective solutions to the challenges of collecting, reviewing and producing documents in complex litigation. As a primary part of these efforts, the firm created the Discovery Center in 1995, which today has more than 130 team members dedicated solely to discovery, due diligence and other document-related matters. On the other hand, I have not experienced e-discovery problems in international arbitration. For example, the expensive process of re-creating electronic files previously deleted simply is not part of the landscape in international arbitration and litigation. In the international arena, arbitrators are much more likely to place meaningful, and reasonable, limits on what may be granted with respect to discovery.

Editor: Please share with us some of the major cases that you have handled recently.

Kehoe: Our group has been busy recently, and it appears that we will continue to be quite busy in the coming year. Last week we concluded a three-day international arbitration hearing involving claims by our client that its joint venture partner breached the joint venture agreement between them. We are representing one of the country's largest banks in a jury trial that starts on Monday in the Southern District of New York. This case is substantial, and it arises from the failure of asset-backed securities that we have all read about.

We have trials and arbitration hearings scheduled through 2010. Some of them, of course, will settle. But some of them will proceed to a final determination on the merits. The partners in our group have real and substantial experience actually trying cases, and we have been fortunate in achieving a high level of success for our clients in litigations and arbitrations that have gone the distance.

Editor: Speaking of arbitration, would you give us an overview of King & Spalding's international arbitration practice?

Kehoe: The international arbitration practice has its historic roots in our Houston office and the terrific work of the lawyers there, particularly Doak Bishop, representing investors in disputes with various governmental instrumentalities. With that solid foundation, we have expanded the practice into the other offices of the firm, and into commercial disputes that arise between companies from different countries that do business together. The Chambers publication states in its annual law firm report that our international arbitration practice has gone from "zero to sixty in five years," and that we are one of the "biggest success stories" in the international arbitration area. Other publications have commented on our growing international stature as well. But, the reality is that we are simply responding to our clients' needs and requests. As our clients continue to move globally, we support them, and that means ensuring that we have the highest caliber talent in the various offices across the firm, with expertise in the clients' business sectors. For example, we opened three new offices in the Middle East recently, and the lawyers there are extremely busy helping clients with energy, construction and other transactional matters. These folks sometimes find the need for dispute specialists, and our international disputes team works closely with them. I believe Ihave already suggested this, but let me say it directly because it is important - the lawyers at this firm work very well with each other and with our clients. We genuinely like each other. And we have a terrific staff of administration, secretarial and technical support. It is a well run place and a nice environment in which to work.

Editor: Would you share with us some of the highlights of the international arbitration practice in recent years?

Kehoe: Our representation of a major oil company in a dispute with a South American government certainly is a significant highlight. This is being handled by lawyers from the Houston and New York offices. John Bowman recently concluded a successful international arbitration on behalf of a French-based oil and gas company. Energy-based enterprises are increasingly drawn to arbitration as a means of resolving their disputes.

The pharmaceutical industry also appears to see international arbitration as an attractive means of resolving disputes, and we are handling a number of matters for clients in this sector. King & Spalding has a strong practice group in the pharmaceutical area, which means that our international arbitration practitioners can call upon the firm's specialized expertise and talent in handling cases for these clients.

Similarly, we have been asked to handle a major international arbitration in the intellectual property area. The IP lawyers at King & Spalding are ranked among the best in the world, and they will be part of the international arbitration team representing the client in this particular matter.

Editor: There was a time when one of the attractive features about arbitration was its relatively lower cost compared to litigation. That is not necessarily true today.

Kehoe: I agree that the cost of arbitration seems to be getting higher. In my opinion, this is not related to increases in allowed discovery. I believe that the cost increase is due largely to increases in disputed amounts. Over the past ten years or so there has been an extraordinary increase not only in the number of commercial and investment disputes brought to arbitration, but also in the value of the issues in dispute and in their complexity. That means that more witnesses must be interviewed, a greater volume of documentation must be read and assessed, and the arbitrators must spend more time in attempting to understand the issues of the case. But with the proper approach and discipline, arbitration remains less expensive than litigation in my opinion and personal experience.

Please email the interviewee at ekehoe@kslaw.com with questions about this interview.