On Monday of this week Proskauer Rose published something brand-new online.
I use "brand new" advisedly. I would be the first to confess I may have missed something like it beforehand (and if you’re aware of any analogs, please let me know), but what they published is:
- remarkably ambitious,
- truly practical and useful,
- without precedent online or off, and
- the end result of an impressive investment of time and resources by the firm.
"It" is Proskauer on International Litigation and Arbitration: Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes, an e-book, with all that implies—you can search it, download it, email links or excerpts, copy and paste, etc. And, of course, from Proskauer’s end, they can (and vow to) update it.
What is "new" about this?
More on that anon. But first, I learned most of what you’re about to hear about this from Louis Solomon, the Proskauer partner who had the gleam of the idea behind the e-book in his mind 21 months ago, and who I was able to spend some time with to get the background for the story. (He reports that he was aided immeasurably by Jennifer Scullion, a senior counsel at Proskauer.)
Louis has been doing international litigation for a long time—starting about 25 years ago when Pepsico (Proskauer’s client) wanted to terminate an intransigent bottler in Taiwan. The longer he’s been doing it, the more he had come to realize that there’s not much written about the rules of the road for international litigation: Certainly nothing comprehensive, nothing by way of a "practical treatise."
So he decided to get the Proskauer Litigation Department to write the treatise, and began with a one-page outline; the first meeting attracted all of six people.
As they set out, a key decision upfront was write it with a decidedly practical bent: "We discouraged footnotes and multiple case citations; but we still wanted it to be comprehensive." So, for example, how do you actually obtain jurisdiction over a foreign entity or in a foreign court? How do you actually enforce a foreign judgment? And how do you do everything that comes in between those two end-points? The result is a 28-chapter e-volume with nearly 50 Proskauer lawyers as contributors. (Lou contributed four of the chapters himself and edited the rest.)
What types of "practical" questions? Well, for example, did you know (I did not) that inhouse counsel in France aren’t considered counsel, so no attorney-client privilege attaches to their communications? Or, that patent examiners working for a manufacturer in Sweden are likewise deemed outside the scope of privilege—but if a US challenger sues to invalidate a patent their internal communications are presumptively privileged? (Can you say, "asymmetrical playing field?")
There are a litany of other areas where, as Lou charmingly puts it, "the law is quirky." Examples? At least in the 2nd Circuit, which of course covers our home town of New York, foreign litigants can come to the US and take discovery in aid of their overseas matters without regard to the "relevance" requirement of Federal Rule of Civil Procedure §26(b)(1). No, the 2nd Circuit has not "interpreted away" that requirement, at least not on its face; it has instead decided that since 28 USC §1782, "Assistance to foreign and international tribunals and to litigants before such tribunals," does not contain an express relevance requirement, none obtains. Quirky indeed.
Here’s how Proskauer introduces the volume:
"Commerce in today’s world pays little heed to traditional geographic boundaries. Manufacturing, marketing, and distribution routinely criss-cross the globe. The Internet has all but obliterated historical national and state borders. These realities — especially given overlapping, diverging, or converging regulatory regimes — have led to a vast increase in the number and complexity of international or cross-border litigations, arbitrations, and regulatory investigations or proceedings.
"Cross-border business and regulatory disputes present unique challenges. Yet there does not exist for the client or practitioner any comprehensive treatment of the issues arising in managing, resolving, and avoiding controversies affecting multiple jurisdictions.
"Our objective here is to fill that gap by providing that essential reference guide. Proskauer has a long and extraordinary history in international practice. The specific contributing authors to this Guide, members of Proskauer’s Litigation and Dispute Resolution Department and International Practice Group, have helped shape the very law and practice in the topics treated.
"Our aim is not towards the bookish or academic. We have tried to write a resolutely practical guide, emphasizing the concrete and strategic over the theoretical, the lore as well as the law, the unique opportunities presented by international matters as well as the challenges. We intend to maintain this Guide as a timely compendium of current best practices as well as our most creative approaches to tackling new developments.
"We are publishing this Guide in e-Book format, over the Internet, for ready access and for ease of updating as the law evolves in this dynamic area. For this project to succeed and meet the needs of our clients, though, it must be interactive. Please, direct questions, comments, or reactions to any of our authors, to our Editor, Jennifer R. Scullion, or to the Editor-in-Chief, Louis M. Solomon. We look forward to hearing from you.
New York City, September 2007
To get a real flavor of how comprehensive the volume is, I’ll list just a very few of its 28 chapter headings:
- Securing US Jurisdiction
- The Role of Comity
- Choice of Law
- Discovery Abroad for US Proceedings
- Discovery in the US In Aid of Proceedings Outside US
- Privilege Issues
- Cross-Border Legal Ethics
- Extraterritorial Application of US Laws (Employment and Securities Laws)
You get the idea. But, as Lou observes, "today there’s no such thing as a small litigation—not with e-discovery." So comprehensiveness is not really negotiable.
If you’re like me, right about now you’re wondering how on earth Lou was able to marshal the substantial resources to make this happen—and on top of that to persuade risk-averse lawyers to publish it online as an e-book free to all comers.
First, he argued the internal benefits for the firm:
- Clients need practical, real-time advice;
- Proskauer lawyers need to write more (Lou and I both subscribe to the belief that you probably don’t fully comprehend something until you have to write about it);
- International practice is an area where Proskauer has genuine depth of expertise;
- Senior and junior lawyers need more opportunities to work together; and
- The project could foster the development of mentor/protege relationships.
Second, he argued the external/reputational benefits for the firm:
- Merely by producing this Proskauer would be seen as strongly capable in this area;
- By offering valuable intellectual property for free, Proskauer predisposes prospective clients to come back for more (why does Zabar’s give free samples of cheese?);
- Most importantly, Lou told me with no small degree of passion that a key goal of the project was, and is, to "contribute to the debate, to participate in the dialogue." How so? "International litigation presents courts all the time with issues and decisions where the law is, to put it charitably, not fully formed. Courts struggle with this; they sometimes don’t know how to approach an issue. We wanted to suggest ways to think about these things. In my experience, courts will never ever penalize a lawyer for taking a view in an unsettled area of law; you’re allowed to have an intelligent opinion. Lawyers are allowed to further the profession without running afoul of judges."
What about the objection that this stuff is our bread and butter—how can we give it away?? Lou’s answer, as mine would be, is that in fact no potential case or controversy in the real world is so simple that simply referring to a treatise will suffice to guide your action. Or that if your question really is that simple, Proskauer wouldn’t charge you for answering it anyway, particularly if the answer can be as short and sweet as "See Chapter 6."
Once the project got underway, the support by the firm itself was astounding, even inspirational, reports Lou. He estimates that an average author devoted north of 100 hours to writing his or her contribution, and while segments came from nearly every corner of the litigation department, two chapters were also prepared by the corporate department, on—what else?—avoiding litigation.
"Nearly 50 authors @ roughly 100 hours apiece!?," you’re thinking? That’s right; I told you this was a serious undertaking by the firm. Although they did not track time to the 0.1 of an hour (Lou didn’t track his own time at all, in fact), Lou reports that his "best estimate is that the firm has made a several million dollar investment, closer to mid-seven figures than low-seven figures."
Is this a model for the practice of law in the 21st Century? Emphatically so, I believe.
But be forewarned: Before attempting this at your firm, understand that to do this is a professional exercise at the highest level of ambition. It’s crystal clear to me from talking with Lou that it’s also a labor of love (or, it had better be). He confessed that he and Jennifer made people go back and hone their language "again and again; there was scrupulous editing and constant re-working." And I believe it shows.
Now that it’s online, you be the judge; see for yourself.
Update (5 Oct, 6:00 pm). When I originally spoke with Lou, I asked what clients’ reactions had been like and he replied that it was so new there essentially hadn’t been time for any reaction.
Well, here’s the first report. I’m not at liberty to identify the client, but suffice to say it’s one of the largest multinational corporations in the world, in a business that affects all of us every day. This comes from a senior in-house counsel and was entirely unsolicited:
"have skimmed through your guide. it is terrific! i think it’s well done, great for issue spotting, well written, well organized, user friendly, etc.
quite a lot of work, i cannot imagine how you fit it in!"i have circulated it to my intl division colleagues and have forwarded it to a litigation dept colleague who has been dealing w some intl investigations/litigations. i’m sure she’ll forward it within the lit department (and they may very well have been sent an announcement directly)"
So, for all the managing partners and practice group leaders who might still be rolling your eyes at the multi-million dollar investment Proskauer made in this guide, I have a question for you: "What price client loyalty on that order?" Put differently, how likely do you think it that that multinational will start giving its international litigation to a firm other than Proskauer?
