Clerking At Both Circuit And Appellate Affords A Unique – And Valuable – Litigation Perspective

Wednesday, April 23, 2014 - 13:27

The Editor interviews Rosa Tumialán, a Member of the firm in the Chicago office of Dykema Gossett PLLC.

Editor: Please tell our readers about your professional background and your practice at Dykema.

Tumialán: I graduated from the University of Missouri of Columbia with a political science major and then went straight to law school at Loyola University of Chicago. I worked briefly in the personal injury litigation area for about a year before clerking in the Chancery Division of the Circuit Court of Cook County for the Honorable Thomas P. Durkin for two and a half years. That clerkship was a fantastic experience; I learned a lot from Judge Durkin. I was preparing to enter private practice, when I received an offer to serve as law clerk to the Honorable Robert Cahill at the Illinois Appellate Court.  I held that position for the next five years. It was during my clerkships that I discovered how much I enjoyed the area of insurance coverage litigation.

In 2003, I joined Rooks Pitts as an associate and started doing primarily insurance coverage and appellate work, which eventually branched out into different areas. Dykema acquired Rooks in 2004. Fast-forward to today, when I am still focused on insurance coverage and appeals and have branched out into class action defense, consumer financial matters and general commercial litigation. My role as one of the firm’s appellate coordinators provides a level of quality assurance for our clients. I also serve on the firm's Diversity Committee and have a few younger, associate-level advisees.

Editor: How has your clerking experience influenced your practice today, and would you recommend that more young lawyers follow your lead?

Tumialán: The short answer to the second question is “yes.” I’m grateful to have had clerking experience in both the trial and appellate courts, even though it was not by design. The unique benefit that I gained is that I have a view of the case from both the trial court perspective and the appellate court perspective, which are very different. When I am litigating in the trial court, I can anticipate what the court might be thinking about the case and strategize how to advance it. I can also think down the road to the appellate stage, in the event of an appeal. My appellate court perspective enables me to plan how to develop my case during the trial court phase such that I have a pristine record, which is very important.

I would say to younger attorneys that clerking gives you a viewpoint that definitely adds value to your practice. While you may miss out on the more traditional associate training, you can still market the benefit of the unique perspectives you gain through clerking – as I have done – by integrating them into your litigation strategy as a value-added asset.

Editor: You have become well-known for your aggressive defense of the Telephone Consumer Protection Act (TCPA). Has your strategy changed with the widespread adoption of smartphones and social media?

Tumialán: My strategy remains constant: to put the pressure on early, and keep it on. If the case is a strict class action defense, I look for the weaknesses for class certification. If we’re in an insurance context, I anticipate the coverage issues and how to best exploit those to my client’s benefit. I take charge of the case; I’m not one to delay or wait for something to happen.

In terms of adjusting my arguments, I monitor the case law across the country with respect to TCPA and other general class action litigation on a daily basis, which gives me an idea of developing trends. I also keep track of FCC rulings because there are several cases that are stayed pending FCC determinations of how to interpret certain regulations. Keeping up to speed on those developments is critical right now.

Editor: Please comment on the changes to the TCPA regulations that went into effect this past October. What is the most important development for corporate counsel to take away from these amendments?

Tumialán: What is noteworthy is that these changes signify that the FCC is interested in maintaining and perhaps expanding the reach of the act beyond what it was originally intended to address – which was fax-blasting and robocalls – to text messages, which will indirectly encourage private enforcement of the TCPA. I don’t mean that the FCC is looking to increase the number of lawsuits of course, but its aggressive and apparently consumer-friendly stance in expanding the scope of the act will lead to the proliferation of these filings as a byproduct.

Businesses need to be increasingly vigilant in reviewing their marketing protocols and practices and in ensuring that best practices are being implemented. This requires an occasional regular auditing of their marketing practices, which is a service Dykema provides our clients as a proactive measure to mitigate the risk of being targeted in a TCPA case.

Editor: You’ve expressed concern that when the courts find that TCPA violations are not excluded from coverage, what results is to the detriment of consumers. Would you elaborate?

Tumialán: The TCPA is a consumer protection statute the purpose of which is to discourage certain conduct. If the courts find that liability under the Act is subject to insurance coverage, then it’s questionable whether that conduct is really being discouraged. The reality today is that we have a plaintiff’s bar that manipulates the statute to reap untold millions of dollars, and they effectively provide little or no meaningful relief to the class that they purport to represent – which of course can be said of all class actions in any context.

The difference with TCPA is that, as far as I can tell, it is the only type of violation that can be litigated on a class-wide basis for which the plaintiff looks to insurance policy funds to satisfy a judgment or settlement. That is not typically true in other class action contexts, at least not to the same extent. The plaintiff’s bar sees a pot of insurance gold, and that is what they go after. My sense is that a finding for coverage actually contravenes the purpose of the statute. You will not discourage conduct if that conduct is an insured liability.

Editor: Pivoting in a different direction: why is it that in 2014 I am still asking you if a female litigator is a novelty in the courtroom?

Tumialán: I wonder that myself! I do not know why that is. I have observed that the actions women take when they are currently in or aspiring to positions of power are perceived very differently from similar actions taken by their male counterparts both inside and outside the legal profession. I cannot explain that either. I do not know what we, as women lawyers, can do about it other than to continue to practice and excel in our respective fields and to continue mentoring those young women lawyers coming up behind us.

Editor: How does your work with the Women’s Bar Association of Illinois and Dykema’s Diversity Committee combat that notion?

Tumialán: The mission of the Women’s Bar is to promote the advancement of women in the legal profession. When I was on the board, through both encouragement and example, we strove to inspire young women to take on leadership roles in some form or fashion so they would eventually be identified by their respective firms as future leaders.

I’ve been on Dykema’s Diversity Committee since 2006. I continually encourage not just women but all attorneys of color to do the same thing – to always look for opportunities. I tell them to look for the positive when something negative happens because that is the way to grow, to assert some leadership, to become someone younger generations can look up to. We all need paths to success, and while everyone’s success is defined differently, the methods we use to get there may be similar.

Editor: Does the firm have a formal mentoring program, or do you take on informal mentees as well?

Tumialán: We do have a formal mentoring program, and I serve as an advisor to a few associates. But I talk to anybody who comes in my door. I find mentoring young attorneys refreshing because I always learn something, too. Mentoring is by no means a one-way street.

Editor: Please tell us about your pro bono work.

Tumialán: Currently I’m working on a pro bono declaratory judgment action. I also handle asylum cases involving refugees from countries where they were being targeted, often due to gang memberships. Those are tough cases. I presently have one case that has been pending for four years. I have also handled and consulted on a few international child abduction cases involving parents who are fighting over their children, many of them under the age of ten. Those cases are obviously very emotional.

I always tell associates who ask about the benefit of pro bono work that it recharges you. While you may do well and be appreciated in your daily work, you may not feel that immediate gratification of having really helped somebody, of improving someone’s daily existence. I’m always surprised by my pro bono clients’ gratitude, as well as by their disbelief that somebody would actually help them for free. It astounds me. I tell associates and colleagues that doing just one pro bono case can “reset” your mind and send you back to your daily work with a renewed sense of excitement and vigor. Pro bono work does such wonders for you: it’s an amazing reward in and of itself.

Please email the interviewee at rtumialan@dykema.com with questions about this interview.