Jennifer Johnson | Fenwick & West LLP
Kathryn Fritz | Fenwick & West LLP
Hi, Jennifer and Kate, thank you for doing this. We’re going to start out with some general questions
What type of work do you do on a daily basis?
I’m in our IP litigation group. I generally work on soft IP matters, which is copyrights, trademarks, and trade secrets, and then once in a while I also do patent litigation work and general commercial litigation
Kate: I’m also in our IP litigation group, specializing in trademark and copyright litigation. I am also currently the firm’s Managing Partner.
How long have you worked at Fenwick & West and in your specific practice area?
I started working fall 2007. I have been working in my practice area since I started, but I really began focused on soft IP my second year, so, since 2008
Kate: I’ve been here for 23 years
Time spent on Pro Bono
Pro bono work is usually not the main focus in a big law firm focused on corporate law and intellectual property law.
Have you found that a greater emphasis is placed on pro bono work at Fenwick & West relative to other law firms? How do you break up your time doing pro bono?
The majority of our work is not pro bono work. But, I find that we definitely place a greater emphasis on it than other firms do. And, we allow billable credit for associates who work on pro bono cases, which provides incentives to take on pro bono work.
Other than that, it is a great opportunity for younger associates to get experiences that they may not get on cases for billable clients. For example, if there is a deposition or a hearing on cases for big clients, a lot of the times the clients will insist that a partner attends the hearing or takes the deposition. Where on pro bono cases it gives associates an opportunity to have those experiences earlier on in their career, which is great.
How do you seek out pro bono cases within your firm?
We have a pro bono director and a litigation partner who helps run our pro bono program. Attorneys learn about opportunities from our pro bono director or other attorneys. Attorneys may also be contacted directly by organizations about pro bono cases that they would like us to work with them on. .
As an institution, we encourage and support to pro bono. We have a very independent culture, which has a couple of implications for our pro bono. First, we do not mandate that every attorney spend a certain number of hours every year on pro bono cases the way some firms do. As a result, some attorneys take on pro bono work, and others do not. We leave it to individual attorneys to make a decision. But we do count every hour spent on approved pro bono, without any cap or credit ceiling, exactly the same for all purposes as every other billable hour. Second, any attorney in the firm, not just our director of pro bono or pro bono partner, can suggest a pro bono project for the firm to take on.. We have a pro bono committee that is comprised of three associates and our pro bono partner that reviews and needs to approve all pro bono project requests, whatever is happens to be. If a partner or an associate suggests a project, this committee must approve it; they review it to make sure that fits our pro bono qualifications, and then every proposal has to be approved by them no matter whom it comes from.
As to where pro bono opportunities come from, they can come from traditional pro bono providers or directly from our attorneys. For example, an attorney may have a friend that is starting a not for profit that is trying to meet an unusual need, and it can be approved even though not from a formal pro bono provider. As a result, our pro bono work is all over the map—we have people who do fair use analysis on documentary films, people that do patents for low income people, people that help low income people with their taxes, asylum cases, landlord tenant cases, guardianship, etc.
I heard you say that not everyone does pro bono work. Is it not a firm wide requirement that you do specific amount of hours of pro bono?
No. I think when I started it was recommended that everyone do 50 hours.
As I said, we don’t have a culture of great mandate. Our culture is a culture of trying to encourage and inspire people to take it on themselves. Some attorneys spend many more hours on pro bono than the amount recommended by the bar and bar associations and others do not. We leave it to the individuals.
How many hours per month or year do you typically spend on pro bono cases?
Personally for me it has ranged each year. First year I didn’t do any. During my second year I had a few big pro bono cases, so I worked a few hundred hours on those.
Kate: She spent a lot of time. And then she needed a pro bono break. I now handle more management of cases, I will supervise some pro bono matters, but then I spend a lot of time either on pro bono committees, task forces or speaking at professional conferences about pro bono to the Bar at large.
Experience gained from working on pro bono cases
Do you do pro bono work tied to trademarks and other aspects of IP law that you typically practice?
One of the large pro bono cases that I worked on was a copyright related case. I think one of the partners here had learned about it from another firm that conflicted out, and we took that case on pro bono. The Plaintiff was a large copyright troll, who had filed over 250 lawsuits against various defendants in different jurisdictions and most of the defendants that they were targeting were small companies or online forums that plaintiff thought would not have enough money to defend themselves through a law suit, which was part of their business plan. Those defendants had an interest in settling with the plaintiff so, plaintiff would get $25,000 or so from each defendant that settled. We took on one of the small online political forums. Basically what happened was that a user of the website had posted a small excerpt from a newspaper article on this political online forum. The newspaper had a practice of assigning parts of the right in copyright of the newspaper articles to this copyright troll, basically giving him the right to sue whoever posted a small part of an article online.
I learned a lot about the fair use doctrine as a defense to copyright infringement. We ended up receiving a very favorable result for our client, and eventually the case was named US Copyright case of the year in Managing IP Magazine, which was very exciting for us because we had taken the case on pro bono, had spent a lot of hours and had a lot of trips to Nevada arguing different motions for that case. It ended up having an impact on the other 250 plus cases that were pending and the future defendants that were sued could then use our case as precedent so they wouldn’t have to spend as much money on attorney’s fees or be forced to settle.
Pro bono representation is also extremely important for the courts in cases like this. Because of the nature of these cases, most of the defendants could not really afford the lawyers the lawyers to defend them. In situations like this, pro bono attorneys can provide the other side of the case to the court. In the end, it is better for the judicial system for there to be equal adversaries.
Have you learned or become an expert on any other type of law besides your normal IP litigation practice area while working on these types of cases?
In each case I have taken on, there has been a new issue—I have taken on several cases completely unrelated to IP litigation, and those are interesting because they give an opportunity to completely learn a different type of law.
One case that I worked on was a Civil Rights Act case- I had never done anything like that before. You basically have to become an expert to argue things properly in briefs and in front of the judge, so it gives people the opportunity to learn different aspects of the law.
I spent about 15 years working on a death penalty case, and I have also worked on a few political asylum cases over the years. I actually brought one in on my own when I was a very junior associate, and brought a partner in to working on it with me. Those were great because they were totally different types of law and I got to manage a case on my own and engage in creative fact finding on those asylum cases and present a case to a judge. A lot of times you can do that in these cases, and get to do it on your own when you are a junior attorney.
Yes, it really is a great opportunity for younger associates
Especially at bigger firms where you might not have as many opportunities to do this directly in early years. It helps build confidence.
What has been your favorite case that you have worked on?
That large copyright case was probably my favorite, just because our client was so happy and it’s always good when your client is happy. But it’s something else when you can help a small little guy who can’t necessary fend for himself.
What has been the most rewarding experience for you while working on a pro bono case?
My most rewarding case was probably the civil rights case that I worked on, which was regarding a prisoner who had diabetes while in prison and wasn’t cared for properly with proper levels of insulin. He passed away in prison. But, we sued on behalf of his son, and ended up basically securing him a college education, which was nice because the son was innocent and had no part in the reason for why his dad went to jail. And then he was able to have some means to live on for several years. It’s always nice to help someone. Pro bono work leaves you with a good feeling afterwards.
My pro bono cases are my favorite cases. I mean I have worked on two political asylum cases, on both of which I helped clients obtain political asylum, and they would have perished if they had gone back to their native countries. And then on my capital case we achieved a reversal of a death penalty. Those are literally life changing cases.
In what ways has your pro bono work helped you become a better attorney for your paid clients?
My First deposition experience in both taking and defending were for pro bono cases. Our firm does a really good job in having programs where you practice taking a deposition with other attorneys, but it’s nice to have a real one that matters for a case. And, it’s great to have that opportunity when you are a junior associate and you may not have those opportunities with cases for paying clients. It allows younger associates to develop more quickly in those areas where they may not have had that ability if they didn’t have the pro bono cases.
And then also for me what was great about that prisoner case was that our firm was recognized for the work done on that case by the Northern dJstrict judges. And at the reception for that, we got to walk around and talk to a lot of the judges, and meet them face to face in a place where it wasn’t them behind the bench and us standing in front of them. It gave a more personal aspect to the judges where we weren’t divided by the line of the bench.
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