Season 5: Episode 7: Luke Gilman

Litigation and Arbitration Partner of Jackson Walker

Hiring partner Luke Gilman offered perspectives on what skills aspiring lawyers need to have to get into international arbitration. 

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How did you journey in the law began?

I never intended to become a lawyer. During my work for the firm, I interviewed many law students who often had inspiring stories of deciding to pursue law at a young age. In contrast, my path was less defined. I worked in various industries such as film and media, and did some reporting. However, I accidentally took an economics course in college, followed by a law and economics course and a law and psychology course, which piqued my interest. After speaking with numerous lawyers and investigating law school, I decided to pursue it. Despite my parents' initial skepticism, I enjoyed the subject matter and saw it as a way to understand the world and help people. As a trial and arbitration lawyer, I find my work meaningful. Many aspiring lawyers in our group aspire to work in international arbitration, having obtained their home country license and now attending law school in the US to practice US law."

What do you do as an international arbitration lawyer?

As general dispute resolution lawyers, we understand that disputes can take various paths, with arbitration being a common one, especially in complex commercial and international disputes. The New York convention has made it easier to enforce agreements and have recourse in case of a breach. In an international community like ours, clients are bound to have international disputes, and understanding how these disputes can take shape, including the unique culture of arbitration that spans legal cultures, is crucial. I split my practice about 50/50 between state and federal courts, primarily in Texas but all over the country, and arbitration, both domestic and international. I mainly handle AAA (American Arbitration Association) administered arbitrations, but also ICDR (International Center for Dispute Resolution) and ICC (International Chamber of Commerce) cases. I'm always amazed at how clients manage to find obscure arbitration institutions, like one client that agreed to a NAFTA-based arbitration institute that no longer existed when the dispute arose. The process of figuring out which laws apply to which issues in a case is an adventure, and I find it to be a really intriguing aspect of the practice.

What is your favorite and the least favorite part of your job?

My favorite part of the job is obviously the issues that we get to deal with. In international arbitration, I feel like that's where the most interesting conflicts of law come up. I really enjoy interacting with other legal systems and figuring out how they differ. Even in small norms and expectations, where systems differ, you have to bridge the gap between the two. So intellectually, it's just a very interesting area of law where you get to put into practice a lot of things that other areas of law would encounter. Simple procedures like what law applies and how to apply it, or unusual situations in litigation can be much more predictable and boring. There's a lot of opportunity for intellectual stimulation.

On the flip side, there's never enough time and money to deal with it as adequately as you would like. Often, you just have a limited amount of time and a limited budget to work with, and you have to do the best you can with those parameters. The money part is really my least favorite because there are cases where you would like every case to be tried, but the better the case, the more likely it's going to have to settle. You won't be able to put on all the evidence and the arguments that you would like. In some cases, it can be really maddening because people have been harmed or have done bad things, and they will escape punishment just because it's too expensive to hold them accountable.

What obstacles have you encounter in your career? And how did you overcome them?

I think I've been relatively fortunate in many ways. I've spent my entire career at one firm, which is increasingly rare. I have deep relationships with my colleagues, which I enjoy. However, I didn't know how to pay for law school when I started, and the same for college. I worked while attending undergraduate school and law school. I waited to find a part-time program for law school so that I could work and study. I didn't know what I wanted to do and was unsure about job opportunities in legal practice.

Some may view this as an obstacle, but it became a competitive advantage for me. When starting to practice law, there's an immense amount to learn beyond what is taught in law school. Understanding practical issues such as how to file a case or initiate an arbitration and how to communicate with clients can be bewildering at first. I tell my clients that we're playing doubles tennis, and they need to hit the ball back to me when we need documents or to identify the right witness. I made countless mistakes early in my career, fearing that I'd be let go. It takes self-confidence to overcome mistakes when starting out in a busy commercial litigation or arbitration practice.

What do you expect to see from associate’s legal memorandum?  

I always think that the best thing to do before we even start trying to figure out the issues or how to draft is to understand our audience. Not only the immediate audience but also the audience that will come later on. For instance, when a partner hands you a fact pattern to review, it's common to examine the applicable law and issues to avoid any surprises. However, the audience beyond the partner, which is probably the client, is also crucial. In this case, you'll be writing a memo to prepare the partner to address all the issues with the client. Partners, especially when busy, rely on associates to conduct thorough research. Therefore, trust and the ability to put oneself in the partner's shoes are essential for building a long-term relationship.

Even minor errors such as typos can cause the partner to question the reliability of the entire process. While I'm forgiving about typos, if a cited case doesn't support what you've written, it's concerning. You are probably too young to remember the OJ Simpson trial, where the prosecutor misrepresented the law, causing damage to their credibility in court.

The quality of the memo is critical, as the partner may use it as a work product or to impress the client. The better the memo, the more involved I want the associate to be in the case. This is how associates can prove themselves and become a valuable resource to the partner, earning opportunities to sit at the table in their first few years.

What are the most important skills you learned about legal writing in law school and throughout your career?

If we separate legal research from legal writing, legal writing is about clear and accurate communication in a short amount of time. It's important to use simple and straightforward language, and to avoid using words that some readers may not know. Shorter sentences are generally better than longer ones, and unclear writing may indicate unclear thinking. When writing, it's important to have a clear understanding of the point being made, and to spend enough time on research and analysis before starting to write. I often find that if I start writing before my research is complete, and before my mental analysis is complete, I will spend more time going back and fixing my draft. It's also important to take breaks and come back to the writing with fresh eyes. Finally, it's important to give the client an opportunity to review the work and provide feedback. Skipping any of these steps may result in a less optimal product.

How does one transfer the legal writing skills learned from law school to practice?

At one point during my third year of practice, I received a call at 8:30 am. My partner needed assistance on an issue I had some familiarity with, but hadn't looked at in a while. I quickly wrote a memo, which ended up being around 30 pages, but could have been shorter if I had more time.

In my legal research and writing class in law school, I spent an entire semester working on a 15-page memo, which I found to be taxing at the time. As you progress in your career, you'll be amazed at how much quicker you become at writing similar memos. As a partner, you often have to deal with issues that would have taken a few days to a week and many hours of drafting a 10-page memo on a complex legal issue. Now, you're expected to respond to clients within a few hours and provide them with legal advice to guide them. Clients don't have enough time to wait for you to research and come back with a response. They need to take action immediately based on your legal advice. Sometimes, you may get a call and realize that you don't have enough time to analyze the issue thoroughly.

In such situations, you provide the 90% answer, follow up later with additional nuances and other considerations. In practice, law school examination questions come at you via email, texts, or phone calls. You learn to be ready for it. As you develop, it becomes second nature and you're happy to guide people through. Don't plan on having weeks to write a memo on every issue that you come across.

Do you have any advice for new lawyers?

My advice to the new generation of lawyers is to look for a lane where you feel your background has prepared you and where there are opportunities. Early in my career, I realized that I had worked in IT, even though I didn't have a degree in computer science. This made me valuable in a way that some of my colleagues weren't. I recall one of my colleagues referring to the "new rules of evidence," which turned out to be the 1978 codification of the Federal Rules of Evidence. As a new generation of lawyers, you're learning things for the first time, giving you a current perspective on the issues. This is an advantage you should leverage, as fresh blood is often relied upon to handle new and emerging legal issues.

Is your experience in litigation helps with your practice in arbitration? Is there any difference between arbitration and litigation from the perspective of legal writing?

There's so much translation going on in litigation and arbitration. I find that one of the more frustrating things about the transition is that when you're used to litigation, let's say for instance, someone I'm working with a traditional litigator. This person may do arbitrations from time to time, but isn't a seasoned practitioner, especially in the international practice. They will have a set of expectations that are not at all what an international arbitrator, for the most part, is going to have. Certainly not what a foreign party would have in terms of discovery in the general litigation process.

There's a huge amount of translation, so having a foot in both worlds helps me understand both the expectations of someone coming from the US litigation perspective and having a foot in the international arbitration world helps me understand how very different foreign legal systems are, the expectations that come along with those, and how to translate.

I have a very good friend who's a lawyer in Paris who is my explainer of all things civil law. Whenever I run into a civil law issue, I often send him an email and try to get a sense of what's the general reaction of someone from his background. For instance, I was asking him how he deals with precedent. He explained to me that there are concerns with consistency, but there's not the same kind of common law or the stare decisis application as in the US. But an arbitrator still wants to be consistent and give parties predictable forms of justice they can rely on in the future.

Evidence is an area where I see that a lot. Litigation in the US looks at evidence as a gatekeeper to keep the jury safe from hearing things they shouldn't rely upon. In arbitration, all evidence is equally admissible, but you should still attack weak and unsupportable evidence that shouldn't be given any weight. That kind of translation often gets lost in practice. Having a foot in both worlds is a benefit. I'm always disappointed at how little imagination people from a US litigation perspective have with arbitration. You can make that process much easier for your client, less costly, and more expedient. Often that requires working with the opposing party, which is where it falls apart. When you do have opposing counsel that's willing to work in the same way, you can agree on the things that don't matter.

How do you balance being thorough without leaving out details and being brief with your legal writing?

I always tell people that when judges first go on the bench, they have no page limits. As they get older, they require shorter briefs. The same goes for arbitration, but with the caveat that in international arbitration, the opinions can be very long. For example, exit arbitrations can have opinions that are 200 pages long and recite every argument that was made. I struggle with some US-based colleagues in international arbitration who want their pleadings to be short and to the point, the way a US judge would expect. International arbitrators expect more fulsome pleadings, especially for witness statements. They want a full discussion and for even ancillary issues to be addressed. It really depends on your audience and what they expect. In state court in Houston, anything beyond 10 pages is unlikely to get read due to the docket and the judge's workload. An arbitrator who is paid by the hour is much more willing to read longer briefs and witness statements.

Do you believe international arbitration is going to become a more frequently adopted dispute resolution mechanism?

Many people view international arbitration as something that is chosen, but it is really a necessity. If you do not have an arbitration agreement and have parties in different jurisdictions, having a civil court judgment enforced across jurisdictions can be extremely time-consuming and expensive.

The fact that the New York Convention makes arbitral awards easily recognizable and enforceable is a powerful tool. I do not see international arbitration going away or diminishing anytime soon, especially since business is becoming increasingly international. I do not see the US agreeing to any kind of cross-border enforcement regime, as suggested over the years, as it would be politically untenable.

I believe that internationally trained lawyers will have a bright career in international arbitration. In particular, if you have deep knowledge of another jurisdiction and are cross-competent in more than one jurisdiction, it is a powerful advantage, as it is relatively rare. Therefore, there are often issues that arise, and you become the perfect person to handle them. You may receive a call 10 years from now, and someone has been googling for days trying to find someone with your exact combination of experience and skills. That is what you want as a practicing lawyer, to have that kind of demand. I encourage you to explore this field. Although it can be difficult to break into, once you get your first foothold, it is a fantastic practice area.