But Winston & Strawn partner Abbe Lowell is in a league of his own. He speaks in beautiful paragraphs, with nary an 'uh' or 'um'—testament to formidable advocacy skills that have drawn clients including presidential son-in-law Jared Kushner and New Jersey Sen. Bob Menendez. I was delighted to have the chance to talk with him about his career litigating at the intersection of law and politics for ALM's new podcast, Legal Speak. Lowell told me that from the beginning, he “wanted to interact with the government—either be in it or fight it or a combination of both.” And he has—cutting his teeth at the Justice Department (where his starting salary was $17,056), as Democratic counsel to the House Judiciary Committee during Bill Clinton's impeachment, and as the go-to lawyer for politicians and other power players in deep trouble. In our conversation, he shares his perspective on impeachment, which in our modern era, he sees as political rather than a constitutional tool. “If the president of the United States really commits an act that the public knows about, if it's bad enough to have him be impeached in a constitutional sense, the people and his party will not rally around him,” Lowell said. “They will force that person's resignation. Whereas if it's not … then it will be a matter of politics and who has the votes, and the person will likely survive.” Lowell goes on to talk about how his work on behalf of Kushner is similar to—and different from— other matters, and what it was like to represent former Sen. John Edwards, a formidable trial lawyer in his own right. (“Every day, Senator Edwards would have about 50 or 60 ideas, and one or two of them were OK.”) Lowell also shares why he left Norton Rose Fulbright to join Winston & Strawn and what as a white collar lawyer he looks for in a law firm. To listen to the podcast, click here or find us on find us on Apple Podcasts , Google Play , or Libsyn . |

Gibson Dunn Wins (Again) in Case with 'Purposeful, Bold, Breathtaking' Discovery Abuses

There's nothing like catching opponents red-handed forging documents, destroying evidence and lying about it. That's what happened when Gibson, Dunn & Crutcher lawyers dug deep on behalf of client AEW Capital Management, L.P. in a contract fight with real estate developer Neil Shekhter's NMS Capital over a joint venture involving Southern California apartment buildings worth hundreds of millions of dollars. Describing the document and evidence destruction as “shocking, intentional, and pervasive”--not to mention “purposeful, bold, breathtaking”--Los Angeles County Superior Court Judge Suzanne Bruguera issued terminating and monetary sanctions in December 2016. When I first wrote about the fight, NMS counsel Skip Miller of Miller Barondess (whose other clients include Rod Stewart, Elton John, Nick Nolte, Bob Dylan, Sean Connery and Steven Tyler, according to his law firm bio ) told me the penalty was “dead wrong, contrary to California law and will be overturned.” Or not. Last week, Gibson Dunn and AEW largely prevailed before California's Second District Court of Appeal. The appeals court affirmed the terminating sanctions order for “deliberate and egregious misconduct,” and held that the misconduct was such that “any sanction other than dismissal [would be] inadequate to ensure a fair trial.” What kind of misconduct? One example: The trial court ordered an examination of Shekhter's home computer. Right before the forensic exam, he changed out the hard drive with a new one, “manipulating it by backdating the computer's clock to make files appear older than they were and then flooding it with more than 75,000 backdated files and folders. This resulted in the permanent loss of evidence and metadata,” the appeals court wrote. And that's just one example. Shekhter's lawyers argued terminating sanctions are “grossly excessive and impermissibly punitive” because all that was removed from the hard drive were personal photos of Shekhter's wife and the tax returns of an employee and “neither these acts nor the alleged forgery remotely warrant terminating sanctions.” “These arguments are an oversimplification of the record and neglect the fact that it is impossible to know the full extent of the evidence destroyed or withheld,” the appeals court held. However, the appeals court determined that Judge Bruguera erred in awarding AEW $6 million for legal fees and costs because she didn't offer Shekhter and his company the opportunity to challenge their reasonableness. The monetary sanctions were remanded. The appeals court also reversed the terminating sanctions order against other NMS-related parties based on a jurisdictional quirk because, at the time the sanctions were awarded, these other parties already had filed a notice of appeal regarding a prior order that dismissed all of their claims on demurrer. But the related parties are likely to face the music when the trial court judge rehears the sanctions motion on remand. “We are gratified that the Court of Appeal recognized that no trial court should be forced to put up with the type of misconduct engaged in by NMS and its principals—forgery , perjury and the willful destruction and suppression of evidence, and terminating sanctions are the least that should be expected under such circumstances,” said Gibson Dunn partner James Fogelman, who argued the appeal. He also tried the underlying matter with partners Jay Srinivasan, Kahn Scolnick, Charles Nierlich, Kristin Linsley and associates Shannon Mader, Harper Gernet-Girard and Samuel Spears. |

What I'm Reading

Miles & Stockbridge Vows Appeal After Verdict for Ex-Partner After he gave notice, he expected full return of his capital contribution to the 216-lawyer firm-- about $68,000. The firm sent him a check for $9,519. Judge Wood OKs Privilege Designations in Cohen Matter Bracewell partner Barbara Jones determined 162 items seized by the government while executing a search warrant should be designated privileged—and 292,226 should not. Paul Manafort's Losing Streak Deepens in Washington Court The ruling marked the second blow in two days against Manafort, who a week earlier was sent to jail after prosecutors claimed he tried to tamper with two potential witnesses. Supreme Court Expands Patent Damages Beyond US Borders, Narrowly Kirkland & Ellis partner Paul Clement had the winning argument for WesternGeco. Justices, in Nod to Privacy, Restrict Police Power to Obtain Mobile Phone Data The decision in Carpenter v. United States marks a win for privacy interests in the ongoing tug-of-war over data privacy in the digital age. Man Who Injured Waitress With Forcible Kiss Hit With $3M Tab by Phila. Jury The 6-foot-4, 250-pound man (who spent the night bragging about his Rolls-Royces, his Maserati and his home at Mar-a-Lago) said, “You've been walking by me all night, and I want a kiss” before taking hold of the waitress, injuring her rotator cuff, neck and shoulders.