Practicing Antitrust Law

Antitrust is a very complicated, specialized, and evolving area of law. Consequently, an antitrust lawyer must stay on top of industry developments. The Internet has been a very big help in terms of allowing antitrust lawyers to keep abreast of everything in the field. I am now able to access daily what is going on at the Department of Justice, at the Federal Trade Commission, and at the European Union Competition Directorate without leaving my desk, so I can stay up-to-date on new developments. The court system has also developed electronic internet access, which allows you to access dockets via the Internet. You can find actual pleadings in cases, at least in federal court and in many state courts, and that has allowed me, for example, to put in a request: what were all the antitrust cases filed in the country today? And you can get an answer to that query, and this helps keep you abreast of developments.

There are also the information services that report on antitrust decisions, and I try to stay current with those. Another important information source is the antitrust community in general. Antitrust typically involves multiple party plaintiffs and multiple party defendants, and you make a lot of friends and acquaintances from being involved in those cases, and you can stay in touch with them and discuss what is going on in the industry and what new decisions are made and what is the significance of the new decisions and so forth. And, of course, when you have clients who are large enough to have law departments that have antitrust lawyers, you talk to those lawyers all the time about new developments as well. That helps you stay on top of what is going on within the client company as well as in the antitrust community generally .

One great piece of advice about practicing antitrust law was actually from an adversary whom I greatly respected. He always said that if you have to try an antitrust case with more than a hundred documents, you should give up because you are going to lose. I always thought that was great advice. Antitrust law tends to be extremely complicated, and judges and juries can and do get lost with complicated things. If it takes a lot of documents and testimony to persuade a judge or jury, they will not be able to deal with the complex story you are trying to tell. Consequently, I have always operated on the principle that it is important to simplify. Application of that principle is not limited to the court room; clients and sometimes even co-workers need to understand the advice or instructions that are being given.

To be successful as an antitrust lawyer, you need to know the facts and the law and the economics better than your adversary. Some kinds of antitrust cases are relatively straightforward. Because there is no defense or justification for conduct such as price-fixing, the issue is a straight factual issue: did the company engage in price-fixing or not? But in cases where the conduct is not per se illegal (i.e., indefensible), the issues can be extremely complex and often require sophisticated economic analysis presented through economic experts. An antitrust lawyer must be able to understand the economic theory as well as the expert, to discern whether the experts economic testimony is consistent with the applicable legal standards and the facts of the case, and to make it clear to a court or a jury most of whom have had little or no economic training that the expert does or does not have a credible opinion on the issues in the case. This is only possible if the lawyer truly understands economics, antitrust law, and the facts of the case.

I also think that credibility as a trial lawyer is important for antitrust lawyers. Perhaps more than any other area of law, antitrust cases are bet the company matters for defendants. Not many cases get tried and there are some antitrust lawyers who have never tried a case or have tried a case but only poorly. Whether representing a plaintiff or a defendant, a lawyer who does not have a track record of trying and winning an antitrust case will cost his client money. Your adversary will know that your client is unlikely to let you try the case few clients will risk a high stakes trial on the success of a lawyer who has not tried big cases before and that knowledge will permit your adversary to insist on a trial absent a highly-favorable settlement for his or her client. On the other hand, if you do have credibility as a good trial lawyer, your adversary will usually not want to face you in court and will be quicker to settle . I have had a few situations where opponents have voluntarily dismissed my client from a case because they did not want to try a case against me. I am not suggesting, however, that I have won every case or intimidated every opponent . I have lost cases and think that losing some cases is an important, though unpleasant, learning experience. A good deal of my personal motivation to win for clients comes from the desire to avoid the unpleasantness of losing.

I believe what separates the great from the good is not only knowing the law and the economics and the facts, but also having a great deal of common sense and the ability to think strategically by putting oneself in the other persons shoes, thinking about how he is going to react , and planning a response to that reaction. I have always believed this is very important and, even when my adversary strikes a particularly effective blow, I look for the opportunities that he or she has provided me by striking that blow. There is opportunity even in adversity. Good judgment is also important: you are often making judgments about the risk of losing which requires making judgments about a jurys ability to understand the facts or the courts ability to grasp a fine distinction. If you make a mistake in judgment, it can cost your client a great deal of money.