The Antitrust Lawyer

The practice of antitrust law has two basic components : counseling and advocacy . They are quite different skills.

By counseling, I refer to the side of the practice where clients ask for guidance in evaluating the risk of some behavior, in shaping the behavior to minimize risk, and, though this clips into advocacy, in securing approvals for the behavior. This is challenging because the antitrust laws are very general and without interpretation offer almost no useful guidance. I have often said that antitrust law is a concept of applied reasonableness. The trick, therefore, is applying it. Antitrust lawyers interpret the general principles for their clients, turning the generalities into something constructive. We bring antitrust law down to earth.

I believe that counseling is the ultimate test of antitrust expertise. It is very hard to do well. Everything that defines and informs antitrust the law, economic theory, government policy and business strategy is in constant motion. And yet to counsel effectively, one must understand both the business and legal/economic sides of the equation. The effective counselor needs to get behind the client's business issues and the business context, such as the structure of their market, and then make a judgment as to how the relatively abstract principles of antitrust law apply. That takes someone who can understand antitrust at a high level. My experience has been that lawyers who just dabble in antitrust miss a lot of important nuances . Counseling in the antitrust area is, in my opinion, for experts only.

Antitrust lawyers are also advocates for our clients. We champion their desires and their causes. Whether they want to do a merger, have been sued, or are the target of an investigation, we articulate in the language of antitrust the reasons they ought to be able to do what they want to do, or perhaps why someone else should not be able to do what they want to do.

I find this the most satisfying side of the practice. There is an art to communicating something as subtle and obscure as antitrust theory in an understandable and effective manner. It is quite gratifying when you know you have reached and persuaded your audience.

An antitrust lawyer, like any type of specialized attorney, needs a set of specific skills. First, you need to be able to understand the conduct your client is, or was, involved in. You cannot just know what happened. You have to understand why it happened , why people wanted it to happen and the effects it has had on the market. That requires the acquired skill of knowing how to conduct business analysis and being comfortable with economic concepts. You need to know what drives profit and industry, and what competitive strategy is about. Those are skills which you simply will not have naturally, but rather must be developed over time.

You then need to be able to apply your antitrust learning to the facts, so that you can assess the issues, the outcomes and the probabilities. You need to know a lot about both law and economics to practice in this field. Very few antitrust lawyers can get by predominantly on case law and government pronouncements. The facts change too much, and they are always unique. Thats why its critical to master the principles of economics so that you can apply them to any situation.

An antitrust lawyer also needs advocacy and communication skills. You have to be able to articulate your clients case to a diverse set of audiences. Part of that is based upon innate advocacy and communication skills, but another part is the acquired skill of knowing the most effective ways to explain these things to people. As the years go by, I understand better what will and what will not work in an advocacy situation. Part of this is dumbing it down, which does not sound like the noblest pursuit. But much more, it is just good teaching. With time you get a sense for what a judge or a jury must first know to understand the important points about your case. I am a firm believer that teaching is the core of good advocacy.

In the antitrust litigation world, there are a lot of people who say they are antitrust lawyers and they are not. They are rather litigators and generalists . Those lawyers tend to be very good at communication, but they do not have the depth of understanding of the business concepts to know what they should be communicating. On the other hand, there are many fabulous antitrust lawyers, particularly those who do a large majority of agency work, who are good analysts, but are not very good communicators . They do not, and should not, litigate.

Different antitrust cases require lawyers with different skill sets. In a price fixing case, where reasonableness is irrelevant and the case is more of a Who done it?, the client needs a trial lawyer more than an antitrust expert. The client should pick the best trial lawyer possible, and not worry so much about the lawyer's depth of antitrust knowledge. However, that same lawyer would not be appropriate to handle a monopolization case. That lawyer would be overwhelmed by it, because there is such a high level of antitrust analysis in that type litigation. In that case, a great antitrust lawyer is somebody who is an effective trial lawyer and highly skilled at antitrust analysis. If a client is doing a merger review, they will need someone who has a good understanding of merger policy, is a relatively good communicator, and has a lot of experience dealing with the regulatory agencies. So the criteria used when choosing an antitrust lawyer vary depending on what the client needs.