A Nice Guy Finishes First

Robert Van Nest proves that “world-class litigator” and “decent guy” aren’t mutually exclusive concepts

Published in 2007 Northern California Super Lawyers — August 2007

Forget about Raymond. Every-body loves Robert Van Nest. For a guy who has made his reputation fighting others in courtrooms, Van Nest has somehow won the affection of even the lawyers he battles—and often bests. 

Joseph Cotchett, a partner in Cotchett, Pitre & McCarthy, has faced off against Van Nest in several important cases. “He’s a very personable guy,” says Cotchett, “and that means a lot. Some lawyers are pompous asses. This guy is far to the other direction.”

James Brosnahan, of Morrison & Foerster, concurs, calling Van Nest as staunch a friend as he is a professional adversary.

Even big business likes the guy. And why not, seeing as he wins big cases for them. His personal list of clients includes American Honda Motor Co., Electronic Arts, Genentech, Intel, LSI Logic and Pacific Gas & Electric. One publication even dubbed Van Nest “Business’s Best Buddy.”

Van Nest’s ability to get along with others would no doubt have served him well in politics, so it’s hardly surprising that achieving elected office was his initial career goal. Growing up in Chicago, where politics rivals baseball as the official pastime, he became fascinated with the bump and grind of the city’s political life. By high school he had already decided he wanted to be a lawyer—not to practice law, but as a stepping stone to elected office. He calls it the “Abraham Lincoln” model of electoral advancement. 

He maintained the interest all the way through Stanford, where he earned his undergraduate degree in history and humanities in 1973. But when he temporarily postponed law school to take a job on the staff of the Democratic speaker of the house for the Illinois State House of Representatives, he quickly became discouraged.

“My first year we were in the minority, my second year, the majority,” he recalls. “But it didn’t seem to matter. Nothing got done. I was tremendously frustrated. In addition, the caliber of the legislators was not particularly high. It really turned me off. By the time I left for law school, my taste for politics was substantially muted.”

After earning his J.D. from Harvard, magna cum laude, in 1978, he clerked in San Francisco for U.S. District Judge William H. Orrick. After his clerkship was completed, U.S. District Judge Charles Renfrew referred him to a fledgling firm, Keker & Brockett, which was looking for a smart neophyte with a driving interest in litigation. When Van Nest appeared, it was clear they found him.

The choice of firms was not obvious. Started on a shoestring less than a year earlier by former federal public defenders John Keker and Bill Brockett, the firm offered the new hire $19,000 a year. Van Nest’s negotiating skills upped it to $21,000, still considerably less than he could have earned anywhere else.

More significant than salary, Van Nest recognized an opportunity to get something he considered invaluable: courtroom experience. At a time when most of his contemporaries were stuck in the background doing research, he got to hone his skills in front of a judge and jury.

“I liked the idea of starting out on the ground floor,” he explains. “When you get trial experience when you’re young, you get a real sense of how to litigate. It makes you leaner. You learn what you have to do to win. It’s a great way to learn to focus your mind.” 

In his first jury trial, he represented a man brought up on federal charges for bird smuggling. The trial was held in Los Angeles, and for Van Nest it dispelled the notion that trials are always won on courtroom skills. The client was acquitted because Van Nest persuaded the judge to dismiss the case due to lack of evidence. The lesson he learned became one of the cornerstones of his career: No amount of courtroom skills can trump thorough preparation.

In 1982, Van Nest became a partner in the firm, which had advanced from what Keker once described as “targeting criminals who could pay” to taking on fraud and securities cases. As word of the firm’s courtroom prowess spread, the clients became larger and larger, and by 1992, when the firm changed its name to Keker, Brockett & Van Nest, it had grown to 24 lawyers.

Brockett, however, had become uncomfortable with the firm’s increasing size and left in 1994 to form Legal Strategies Group, a boutique practice that more closely resembled Keker & Brockett in its early days. He died two years later.

In the meantime, the renamed Keker & Van Nest continued to attract big-name clients and high-stakes cases. Today, the majority of its cases involve multimillion-dollar claims.

According to Van Nest, success as a trial lawyer requires three qualities: the willingness to work tremendously hard; the ability to think on your feet; and the ability to separate the wheat from the chaff. 

“Trials happen quickly,” he says. “You have to be able to immediately grasp the implications of what happens in court and respond to it. The best way to do that is prepare in advance.”

Just as important, he says, is a developed focus that enables you to zero in on the key elements and not be distracted by irrelevancies.

As he puts it, “In any trial, just a few factors decide the outcome. You have to be able to distinguish what matters from what doesn’t.” That became particularly important in the suit against Al Davis, the majority owner of the Oakland Raiders. In 2005 Van Nest and Stacey Wexler, a partner in the firm, won what one news report termed a “rare legal victory” against Davis, whose aggressive, even bombastic, response to any attempt to thwart his will tends to steamroll opponents. The claim was for hundreds of millions of dollars. 

Van Nest and Wexler represented the heirs to the football team’s founders, who claimed the contract Davis signed entitled them to recognition as limited partners in the franchise and gave them a right to examine the books.

The suit generated heated and sensationalized media coverage, fueled by rehashes of past controversies involving Davis, various local governments and the Raiders’ fan base. It was, in short, a media circus. But the Keker & Van Nest partners prevailed by resolutely keeping the proceedings focused on the terms of the contract rather than on motives, feuds and personalities.

“There were tremendous lawyers on the other side, from the Howard Rice firm, and we had a very colorful and very shrewd opponent in Al Davis,” Van Nest says. “It was a very compelling situation, with a lot of emotion—tears, explosive outbursts, insults. But the contract was very clear, and by constantly coming back to that and not letting ourselves get caught up in the drama, we were able to win.”

Brosnahan calls Van Nest’s preparation the hallmark of his practice and considers his ability to get to the bedrock of legal issues unsurpassed in the legal profession today. Cotchett, who went up against Van Nest in the Davis case, echoes the praise, saying Van Nest’s diligence in gathering and analyzing facts in advance of trial makes him one of the most formidable foes he has ever faced. “He’s a guy you can never take for granted,” says Cotchett. “He isn’t weighed down by the facts. You always have to be on your toes.”

Van Nest attributes some of his success to innate curiosity, which enables him to live up to the firm’s goal of retaining a generalist’s approach to practice. The desire to learn about new subjects is a critical component in his ability to prepare so thoroughly for each case. He enjoys studying.

Recent cases have taken him more deeply into the realms of intellectual property and divided infringement, a somewhat esoteric but growing area of patent law in which a cumulative series of actions by disparate individuals are said to violate a patent even though the individual actions on their own do not. These are highly technical areas where Van Nest’s intellectual bent and commitment to thorough preparation have proved vital.

He recently won a summary judgment in a patent defense case for Intel in the Eastern District of Texas, which Van Nest says has become a major forum for the making and clarifying of patent law. What made the win especially noteworthy is that the patent had been successfully asserted against several other defendants in other courts. “Very few defendants have fared well there,” Van Nest says, “but we persuaded the judge that the patent claim against our client was invalid. It was wonderful to win. The stakes were very high. The claim was for several billion dollars.”

He finds the IP field extremely exciting because of multiple issues that arise from advances in technology, issues that have only begun to be addressed by the courts.

“It’s a great thing to be litigating in a climate of change,” Van Nest says. “If rules are fixed and facts are simple, practicing law becomes routine. Where new decisions are coming down, you have to keep your mind really sharp. It’s invigorating.”

But if he wholeheartedly embraces change in the areas in which he is litigating, he is less sanguine about changes occurring in his firm. Having grown to some two dozen partners, the firm recently decided to become even larger. Van Nest worries it may lose some of the collegiality that has characterized the practice.

“We’ve always worked together, kept close tabs on each other’s cases and helped each other out. I don’t want to lose that, but that’s much harder once you grow beyond a certain point,” he says.

Nonetheless, increasing demand for the firm’s services has forced the firm’s two dozen partners to opt for expansion.

A substantial portion of the boost in business has come from other law firms, especially large ones, which increasingly have come to rely on Keker & Van Nest to defend them in professional malpractice suits. Van Nest credits the trend partly to the firm’s reputation for winning litigation but also to the decision not to become a full-service law firm, which means it isn’t competing with the big firms for clients. To put it simply, he says, “Lawyers don’t want to send a case to their competitor.”

But Brosnahan thinks Van Nest’s determination to treat opposing counsel with courtesy and respect and not carry legal battles outside the courtroom plays a role, too. The firm demands the same from junior partners and associates, imbuing them with a sense of consideration that has earned them the trust of their peers.

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