Top Litigators Manage Firm's California Offices

Tuesday, January 5, 2010 - 01:00

Editor: Tim, you were named managing partner of the firm's Silicon Valley office and Fritz was named managing partner of its San Francisco office. Please describe your respective offices, their principal practice areas, and how they are related.

Scott: The Silicon Valley office includes 30 lawyers all of whose practices relate to life sciences. The office's principal, though not exclusive, focus is therefore on the life sciences industry.

Our life science practice includes life science patent prosecutors, most of whom have PhD's in some relevant area, whether it is chemistry, biology or genetics. We have a group of IP litigators who likewise have advanced education in life sciences. We have two corporate lawyers who have worked with both venture funds and life science companies.

Our separate litigation group includes general commercial and securities litigators who have done a lot of life science litigation in the form of qui tam litigations and disputes arising from collaboration, license or supply agreements and the like.

What makes us unique, and this is one of the areas in which the Silicon Valley and San Francisco offices overlap, is that to our knowledge we are the only law firm out here that practices in the life sciences arena that has an on-the-ground regulatory practice. We have three regulatory lawyers in our Silicon Valley office; one used to be at the FDA, and the other two came from the industry, where they focused on the regulatory side of life sciences.

Because life sciences is the focus of the Silicon Valley office, it is the main thrust of our marketing efforts. That is not to say that is all we do.

Editor: How important is life sciences to the Silicon Valley economy?

Scott: Silicon VaIley has probably the densest concentration of emerging life science companies in the country. Just as the technology industry grew out of National Semiconductor, the life science industry here grew out of Genentech and all the spin-offs out of Stanford and Berkeley. There are probably 500 life science companies within a stretch of 40 miles. The three areas of the country where law firms have the most robust life sciences practices are Boston, Silicon Valley and down in North San Diego county.

Zimmer: Our San Francisco office is smaller. Although it has only twelve lawyers, we are pleased to be at that figure, because when we opened on April 1, 2008 we had only three. Despite the bad economy, we have managed to grow as a result of lateral hires from other firms and through transfers from our other offices.

Our primary practice areas are pharmaceutical and medical device work. We also practice in the toxic tort area involving chemical exposure cases, groundwater contamination and related matters. We do commercial litigation and like Tim's office also do IP work. We too have an FDA regulatory partner resident here in San Francisco, and I concur with Tim's comments that it is a bonus to be able to offer this service on the ground in both offices in California. We have a real estate partner as well and are hoping to add more.

While we are smaller in number than the Silicon Valley office, we cover a somewhat wider range of practice areas. This is also our first week in our new office space at 101 Second Street.

Editor: Is there a synergistic relationship between your two offices?

Scott: There is and it is primarily in the ways in which the two offices touch on the life sciences, so that Fritz's product and tort group together with the FDA lawyers in San Francisco all work closely with lawyers in this office in marketing and on cases. We have been here only since March 2008. The two offices total about 40 lawyers, and the plan is to continue to grow through adding new practice areas to our respective offices.

Zimmer: I agree with Tim who has been very proactive about scheduling cross-selling meetings so that the partners have opportunities to regularly check in with each other and compare notes on where different trends are headed and potential client pitches that can be made. Indeed the life sciences areas is where we have the most overlap.

Editor: You might tell our readers a bit about your practices and backgrounds.

Zimmer: I have been practicing for 26 years, since graduating from the Georgetown University Law Center in 1983. I do primarily drug and medical device defense litigation work, some commercial litigation work, and a fair amount of toxic tort work. I was recruited away from my former firm by King & Spalding to help open the San Francisco office. I currently serve on the Board of Directors of the International Association of Defense Counsel (IADC), whose membership is limited to leaders of the defense bar. I am also on the Steering Committee of the Drug and Medical Device Committee of the Defense Research Institute (DRI). With my involvement in those organizations and writing and speaking on defense bar issues, I keep actively involved in the defense scene.

I started in 1983 here in San Francisco with Bronson, Bronson & McKinnon, a firm that no longer exists. Ten years later, I was a member of a group that broke away and formed our own firm called Preuss Walker & Shanagher - later known as Preuss, Shanagher, Zroleff & Zimmer - which became the San Francisco office of Drinker Biddle and Reath. I was recruited away from Drinker to help open the San Francisco King & Spalding office in April 2008.

Scott: I graduated in 1985 from the University of Chicago Law School, so I have been doing this for 24 years. Shortly after graduating, I joined a small suburban shopping center law firm, which was called Wilson Sonsini, as their 80th lawyer. I stayed there for 18 years, and at various points ran their litigation group and sat on the management and executive committees. I saw that firm grow from 80 to 800 and left in 2002.

I went to Sidley Austin in San Francisco for a couple of years where I ran their litigation group and then moved here in October of 2008. My practice is really a mix of securities litigation and general commercial work. On the securities side, I have probably done about 30 securities class actions. On the commercial side, I have done a spate of consumer class actions and also a lot of breach of contract actions involving such things as breaches of license agreements and supply agreements and the like.

Editor: As litigators, what skills do you bring to the management of your offices?

Zimmer: I am honestly not sure that being a litigator gives me any particular leg up on how to run the office. The people skills that Tim and I hopefully bring to this job based on our negotiating experience and time spent in court should be helpful. A lot depends on our ability to communicate to those we manage that we are all in this together and need to work as a team.

Scott: The main function that I see us playing is organizing groups of people and getting them focused in one direction to accomplish important goals. As litigators, we know that our success depends on how well we manage our cases. I agree with Fritz that managing an office is primarily a people job and that most successful litigators have people skills.

Editor: An increasing number of successful litigators have become the general counsel of major companies. Why is this happening?

Zimmer: We too have seen this happening. An old friend and former partner of mine, Mike Holston, became general counsel of Hewlett Packard. It is an interesting trend because previously the general counsel core came from the transactional side. The most likely explanation is that litigation expenses have soared in recent years.

Editor: To what extent has the cost of e-discovery contributed to the increase in litigation expense?

Scott: You can't even litigate a simple thing without the discovery cost dwarfing everything else in the case. If a complaint in a securities class action case survives a motion to dismiss, the cost of collecting and reviewing all the electronically stored data creates an impetus to settle the case before even getting to the merits in order to avoid the cost of e-discovery.

Zimmer: The invention of email has done more to benefit plaintiffs' counsel than any other development of the last 20 years. I have colleagues on the plaintiffs' side of the bar who tell me they thank their lucky stars that email was invented.

Editor: Do you feel that the Twombly and Iqbal cases have helped to relieve the e-discovery burden?

Zimmer: So far so good is my short answer. But legislative efforts are underway to either eliminate or marginalize the result in those cases.

Scott: As a defense lawyer, I'd say those cases represent steps in the right direction. Notice pleading particularly as it relates to our prior discussion about email and the cost of e-discovery makes it impossible for a defendant, at least in a small- or medium-size case, to defend itself because it becomes uneconomic to do so.

Editor: There is increased interest in changing the federal rules to require fact pleading. Will this reduce e-discovery costs?

Zimmer: In the drug and device setting, requiring fact pleading is not a complete solution to the discovery burden, but it's a good start.

Scott: The impact of fact pleading on reducing the burden of e-discovery depends on how it is implemented. A fact-based pleading standard which limits plaintiff's discovery to investigating the facts set out in a complaint will help. However, much of the cost of e-discovery comes from retrieving the data and then identifying data that is responsive to the request. Even if you have a narrow set of claims, you are still put in the position of reviewing rafts of data to figure out what is responsive.

Please email the interviewees at tscott@kslaw.com and fzimmer@kslaw.com with questions about this interview.