Editor: Please tell our readers about your background and your role as Director of Litigation for Dykema.
Stephenson: I headed the firm’s Litigation Department until the end of 2013. Dykema has 180 lawyers in its Litigation Department, with litigators in 12 offices. It was a time-consuming, intensive job that required travel to many offices, strategic planning, casting vision along with motivating people and developing personal relationships, and, of course, being the face of the Litigation Department to the outside world. I’ve passed the baton on to Michael Cooney, who is doing an outstanding job as our new Litigation Director. My current role is the leader of Dykema’s newly formed National Trial Team. We’ve been in the process of rolling that out for the last couple months.
Editor: You’ve just launched this National Trial Team, a new initiative, that I am not aware of other firms having undertaken. How did this idea come about? And why should company law departments take an interest in it?
Stephenson: While I originated the concept, as I started sharing it with other leaders of the firm, it was immediately embraced. Basically, it reflects the reality of litigation practice where fewer cases are going to trial, which means two things: One, the cases that do go to trial are really must-win cases. Two, there is just not very much trial experience to spread around among the lawyers in firms today. Frequently, the litigation departments at large firms have a lot of litigators with little or no trial experience. In terms of taking a case to trial, especially a big case in a tough jurisdiction, they just don’t have a ton of experience. This is one of the things that I think makes Dykema distinct. We have a wealth of trial experience in our litigation department. We have trial lawyers at the top of the profession who have tried multiple, tough cases, even in the so-called “Hell-hole Jurisdictions.” I became the leader of the team because I’m one of our firm’s trial specialists – one who has tried several headline cases. From the perspective of corporate law departments, if you’ve got a bet-the-company case in a tough jurisdiction, you want a trial specialist, not just someone who dabbles in it. We have a team of trial specialists.
Editor: How long has this new National Trial Team been in existence? Who are its members?
Stephenson: We’ve been in the process of developing this new product offering since January, when I became leader. We officially launched it in mid-March. The initial team of trial specialists has 27 people, who have more than 650 trials under their belts.
Editor: Over the past 20 years, consumer fraud cases have been on the rise, many of which you have handled. Are you seeing an increase in personal injury-type cases or in false advertising cases?
Stephenson: First, I want to confirm what you’re observing, that is, that there has been a pretty dramatic rise in consumer fraud cases in the past 20 years. I spent most of my professional career in Michigan and moved out to California five years ago. California is seen as the hotbed for consumer fraud cases. That has been my experience. I’ve been inundated with them since coming here, but we also saw them on the rise in Michigan. I think it’s a nationwide phenomenon. Most of these cases are brought under state law consumer protection statutes, which are very friendly to plaintiffs. These consumer protection cases really only work as class actions because the damages for an individual are too small to warrant the attention of personal injury lawyers. While personal injury cases are notoriously tough to certify as class actions, that doesn’t stop plaintiffs’ lawyers from bringing them. We universally oppose class certification in those cases. The more commonly brought consumer fraud cases are false advertising and false labeling cases that involve economic rather than personal injury.
Editor: In cases alleging consumer fraud, in particular, when do you advise your clients to go to arbitration rather than to the courts?
Stephenson: It’s usually not our choice. Plaintiffs will almost always choose court over arbitration if they have any hope of certifying a class. Defendant companies will usually prefer arbitration because it will avoid the class issue, but they can’t get to arbitration without an arbitration clause in an agreement. We are starting to see the rise of arbitration clauses in consumer transaction documents, although it is not yet common.
Editor: You’ve handled a number of aviation cases. How has your mechanical engineering degree and background been an asset to you in that practice?
Stephenson: It’s been a huge asset and not just in aviation cases. I handle many cases that have a science component, but beyond that, engineering school taught me an approach to solving problems that carries over into all kinds of trial work. You gather all the evidence you can find, you sift through it, you organize it and you form a plan of action around it – lessons from engineering school. That is how I try cases. Specifically, how has it helped me in aviation cases? Actually, my degree is in mechanical engineering but my focus was aeronautical engineering, and I had to make a choice at the end of engineering school about whether to go to law school or accept a job offer in the aerospace industry. That was a close call. But my focus in engineering school was aeronautical, which applies directly to my aviation cases.
Editor: Bet-the-company cases like the NW Airlines Flight 255 case where you represented McDonnell Douglas tended to garner a lot of media attention. What did you learn about media management during that high-profile case in the ’80s, and how has Dykema’s approach evolved to manage these types of cases in today’s social media landscape?
Stephenson: It’s a whole new ballgame. That trial lasted 18 months, starting in the ’80s and ending in the ’90s. There were no cameras in the courtroom back then. You had sketch artists – not social media, cameras everywhere, or jurors viewing Facebook and Twitter during the trial and deliberations. Media management in a big case today is completely different from what it was in the ’80s or ’90s. No longer can a party say “no comment” to the press, which was common wisdom back then. Nowadays “no comment” is interpreted as an admission of guilt. I certainly believe it’s unwise for a company or for a lawyer as a spokesperson for the company to just blow off the media. Companies today tend to be proactive about their press relations. They’ll put out a press release instead of waiting to be contacted. It’s better to shape the message. I think that’s a positive development for clients. It’s important for me as their lawyer to be part of the crafting of that message, but typically, and appropriately, it’s a client spokesperson who delivers the message.
Editor: How has Dykema responded to the increasing demand by corporate clients for alternative fee arrangements?
Stephenson: Dykema is a leader in alternative fees, at least in litigation. We have embraced it for 20 years as part of our culture. We have many very sophisticated clients. For example, we represent the top domestic and foreign automotive companies, and they’re very sophisticated in litigation management. Virtually everything we do for big clients is based on some sort of alternative fee. We’ve used just about every variation of alternative fees and are very comfortable with them.
Editor: You are a world champion Masters swimmer – currently holding two world records. I understand that you swim competitively to challenge yourself. Does your drive to litigate high-profile, high-stakes cases stem from that desire as well?
Stephenson: I think it does. I am currently in training for the 2014 World Championships in Montreal this coming August. There’s no money in the sport of swimming – it’s completely internally driven. It’s something I’ve been doing for a long time, and so I’m comfortable with it. You set a goal and then step up to the challenge. I could talk all day about the parallels between high-level swimming and high-stakes litigation. In both cases it takes months or years of preparation. You have to work hard and push through adversity. You have to be incredibly disciplined and focused. And when the big day comes, you have to embrace the spotlight and ride the adrenaline.
Editor: That’s quite a testimonial! You are truly a Renaissance man in that respect. Please tell us about your pro bono work.
Stephenson: Pro bono work has sparked my motivation for law practice in several ways. A lot of what we do for companies has a big impact on people, on jobs, on the vitality of the community. But when you’re talking about doing pro bono work, a lot of times it’s very personal. You’re there helping somebody who really needs your help and whose life is going to be changed by your help. My focus for the last five years has been in the area of human trafficking. One of my clients is a teenage girl who was trafficked by her mother into a prostitution ring and brought into the U.S. illegally. She became my client when she was 14 years old and has been my client for the last five years. I’ve seen her life changed as a result of our help and the protection of the law. We’ve helped her with immigration issues and with the underlying criminal prosecution of the trafficking ring. Just knowing her and seeing the way her life has been changed has given me a renewed motivation for my law practice.
Editor: I understand you are also an author. Your first novel, The Underwater Window, about the world of competitive swimming, was published in 2012. Are you working on a second novel?
Stephenson: Yes. I have a concept and an outline in mind for a second novel. The Underwater Window surprised me with how successful it’s been. It was published almost two years ago, but just last month I was asked to speak to a group about the book. A couple months ago the organizers of a law conference bought 150 copies to distribute to attendees. I did not expect the book to have legs like that. It has been far more successful, and a lot more fun, than I ever expected.
Published March 20, 2014.
