Discover more from Original Jurisdiction
A Leading Litigation Boutique Turns 25
Cooper & Kirk celebrates a quarter-century of high-profile cases and high-powered alumni.
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at firstname.lastname@example.org, and you can subscribe by clicking on the button below.
Which law firm boasts the most impressive and influential alumni? There’s a strong case to be made that it’s Cooper & Kirk, especially adjusting for size. The elite litigation boutique has just 18 lawyers, but its alumni include two U.S. senators, three federal judges, a former U.S. solicitor general, and the chief legal officer of the #1 company on the Fortune 500. Of the current class of Supreme Court clerks, six are former associates or summer associates at the firm.
The firm’s influence will be reflected in tomorrow’s oral argument before the U.S. Supreme Court in Federal Election Commission (FEC) v. Cruz. The case will be argued by Cooper & Kirk founder Charles J. “Chuck” Cooper, appearing before the high court for the ninth time in his illustrious career. And his client, Senator Ted Cruz (R-Tex.), is an alumnus of the firm—the first associate the firm ever hired, in fact.
Cooper & Kirk (“C&K”) recently turned 25, a nice milestone for any law firm—and especially impressive for a firm that has been so influential. Over the past quarter-century, the firm has litigated some of the most important cases in the country, including Bush v. Gore, which decided the 2000 presidential election, and Hollingsworth v. Perry, which challenged California’s ban on same-sex marriage. As for clients, the firm has represented two former U.S. attorneys general, five senators, and a former national security adviser to the president, in matters both public and private.
Over the years, the firm has also generated more than its fair share of controversy. Although many of its cases are not political, the ones that are, like Bush v. Gore and Hollingsworth v. Perry, have been highly contentious—and in these cases, Cooper & Kirk has typically served as standard-bearer for the conservative side. The ranks of its alumni also skew rightward, including not just Senator Cruz but other conservative stalwarts like Senator Tom Cotton (R-Ark.), Judge James Ho (5th Cir.), and Noel Francisco, who served as U.S. Solicitor General during the Trump Administration (and who was C&K’s second associate hire, after Cruz).
Despite their involvement in some of the hottest of hot-button issues, Chuck Cooper and his colleagues have won the respect of their adversaries. As David Boies—who represented Al Gore in Bush v. Gore, then went up against Cooper again in Hollingsworth v. Perry—told me in a recent interview, “Chuck Cooper is one of the best lawyers I know. He’s an extremely skilled advocate and also a person of great integrity who cares deeply about our justice system. I’m much happier when he’s on my side than when he’s opposite me.”1
And there’s a value to having both sides well-represented by talented attorneys when litigating the most difficult issues facing the nation. As former Solicitor General Ted Olson, who went up against Cooper in the marriage-equality litigation, told Bruce Love of the National Law Journal, it’s crucial to have “skilled opposition that goes right to the heart of things” in high-level, constitutional cases. “When the other side is writing good briefs and making good, strong arguments, it takes your very best to counter.”
How did Cooper & Kirk get its start? Not with a controversial case over election law or gay marriage. Instead, you might call C&K “The House That Winstar Built.”
United States v. Winstar Corp. (1996) was an important case that Chuck Cooper argued—and won—before the Supreme Court. The details were complicated, as was the lineup of the justices in resolving it,2 but here’s a nice, concise Wikipedia summary:
Winstar arose as a consequence of the savings and loan (“S&L”) crisis. Federal regulators had allowed "supervisory goodwill" to be counted as regulatory capital for financial institutions that took over failing thrifts. Congress later passed the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), which substantially changed these advantages….
This had the effect of throwing numerous S&Ls aka thrifts out of compliance with FIRREA’s capital requirements practically overnight, leading them to be taken over and liquidated by federal regulators. Several of the thrifts then sued the federal government, alleging that the government had committed a breach of contract with this regulatory change.
The plaintiffs were viewed as unlikely to succeed; the government changes laws and regulations all the time, without incident or liability. But Cooper and his colleagues convinced the courts that this specific situation was different:
The United States Court of Appeals for the Federal Circuit found a breach of contract and awarded damages—and the Supreme Court upheld the lower court decision.
Winstar cases resulted in multimillion-dollar payouts to plaintiffs. As of July 31, 2000, there were 13 settlements or judgments totaling $1.158 billion against the federal government, with more than 100 more cases pending, as a result of the Winstar decision.
At the time that Cooper won Winstar, he was a partner in the D.C. office of a leading law firm, Shaw Pittman (now Pillsbury Winthrop Shaw Pittman). It was an excellent Biglaw firm—but Cooper was starting to wonder whether Biglaw was really for him.
“I began thinking it might be preferable to practice in a small litigation boutique,” Cooper told me. “A boutique wouldn’t have all of the advantages of very large, national law firms, like security and risk mitigation, but it did have advantages that Biglaw lacked—the ability to focus on the practice of law rather than a lot of bureaucracy, as well as freedom from the constraining forces you face at large law firms, like client conflicts and political influences.”
Under normal circumstances, leaving Biglaw to launch a boutique can be risky. But Chuck Cooper and his fellow Shaw Pittman partner, Michael Carvin, drew comfort from the fact that post-Winstar, numerous failing or failed thrifts were flocking to them for representation after their big SCOTUS win.
So on October 1, 1996, Chuck Cooper and Mike Carvin launched their new litigation boutique, Cooper & Carvin. Joined by three Shaw Pittman associates—Michael Kirk, David Thompson, and Vincent Colatriano—they had ample business from all the Winstar cases. Dozens of S&Ls hired the new firm to sue the federal government for damages—often very large damages—flowing from that fateful regulatory change that harmed so many of them.
“Winstar essentially became the anchor tenant of our law firm,” Cooper said. “It significantly mitigated the risk of starting a new law firm for the five of us who took that risk in October 1996.”
In financial terms, Cooper & Carvin was profitable after its first month. But in structural terms, the firm experienced some growing pains in the early years. In 1998, after Steve Rosenthal and several of his Morrison & Foerster colleagues joined the firm, it became Cooper Carvin & Rosenthal. But the Rosenthal group turned out not to be a good fit and left a few years later, as did Michael Carvin. (Cooper declined to discuss his disagreements with his former partners, simply praising them as lawyers and people, but it’s worth noting that Rosenthal and Carvin now practice at much larger firms—Loeb & Loeb and Jones Day, respectively.)
In 2001, the firm became Cooper & Kirk, when Michael Kirk joined Chuck Cooper as a name partner. The firm has remained Cooper & Kirk ever since—and it has thrived over the past two decades, adhering to a model that other boutiques might be interested in emulating. Here are the key components of its success.3
1. Small is beautiful.
Cooper & Kirk has remained small, resisting the pressure to grow into a Quinn Emanuel or Boies Schiller. Its current size of 18 lawyers is close to the biggest it has ever been. And its small size has played a big role in making C&K into the firm it is today, giving rise to several advantages.
Staying small has allowed Chuck Cooper and his colleagues to focus on practicing law, avoiding the administrative issues and office politics that consume so much of the time of Biglaw partners. As Cooper told me, “We don’t have committees at our firm. We make decisions by leadership coming to my office, talking things over, and deciding.”4
Its size has allowed C&K to get involved with interesting, high-profile matters—not just Bush v. Gore and Hollingsworth v. Perry, but also representing former National Security Advisor John Bolton in litigation with the Trump Administration over his bestselling memoir, former Attorney General Jeff Sessions in Russia-related matters, the City of New York in the line-item veto case, and the Duke lacrosse players who were falsely accused of sexual assault. Many Biglaw firms turn down such representations, fearing blowback from their numerous lawyers, clients, or both.
Because it is so tiny, Cooper & Kirk has been able to maintain extremely high hiring standards, since it’s not bringing in dozens of new associates each year. Of the 18 lawyers currently at C&K, seven are former SCOTUS clerks. As former associate Jesse Panuccio, who went on to serve as Acting Associate Attorney General and is now a partner at Boies Schiller, said to me, “They are the greatest group of litigators, from top to bottom, that I have ever worked with. Because of their size, they are able to be very selective.”
Perhaps most importantly, the firm’s small size has promoted collegiality and mentorship. When I asked current and former Cooper & Kirk lawyers what they appreciated most about the firm, they invariably mentioned the relationships formed with their colleagues. Here’s Rachel Brand, a former C&K associate who went on to serve as Associate Attorney General and is now the Executive Vice President of Global Governance, Chief Legal Officer, and Corporate Secretary of Walmart:
When I finished my first clerkship, I had a choice between Covington and Chuck’s firm, where I had been the very first summer associate. I was very conflicted. I talked about the decision with my mother, who gave me good advice: if you go to the big firm, you could get lost, but if you go to the small firm, you could get a mentor. She was right.
Chuck Cooper in particular has been a mentor to many—and Cooper & Kirk lawyers remember lessons from him years later. Panuccio shared this anecdote, demonstrating what he learned from Cooper about the importance of being prepared:
We had a very long trial in the Court of Federal Claims. We were in court for ten hours a day. The trial wasn’t as formal as most, and if you were hungry, you could sneak a snack in the courtroom. I was in charge of snacks, so I had a paralegal get a mix of healthy stuff, like carrot sticks, and good stuff, like beef jerky.
At one point in the trial, Chuck passes me a note: “Do you have any more beef jerky?” I handed him a bag of carrot sticks, whispering, “Sorry Chuck, this is all we have left.”
A few minutes later, I see Chuck looking at me—glaring at me—and biting down on that carrot stick with contempt. To this day, I can still remember the face that Chuck made eating that carrot.
And from that day forward, Panuccio never ran out of beef jerky.
Here’s another story, this one from Noel Francisco, a former C&K associate who served as Solicitor General and is now a partner at Jones Day:
Chuck and I had a trial in Rockford, Illinois, in the middle of winter. There had been blizzards, so there were piles of snow everywhere. As we were getting ready to head to court one morning, Chuck came down to the hotel lobby wearing nothing but his suit and a light overcoat. I said to him, “Chuck, you’ll freeze!”
But Chuck knew exactly what he was doing. Our trial was a huge story, so we made the nightly news—and Chuck looked great. On television, he was seen striding confidently into the courthouse, hair slicked back, dressed to the nines—and there I was trailing behind him, wearing this huge parka and dragging boxes. It was an early lesson from Chuck about the importance of presentation.5
But Francisco gained even more than that from Chuck Cooper: specifically, his post as U.S. Solicitor General, one of the most desirable jobs in the legal profession.
As some of you might recall, Chuck Cooper was a leading contender to serve as Solicitor General during the Trump Administration, pushed for the role by his good friend and fellow Alabaman, Senator turned Attorney General Jeff Sessions (whom Cooper helped prepare for his AG confirmation hearings). But Cooper abruptly withdrew from consideration as SG—on the brink of his likely selection. When I asked him recently about why he took himself out of the running, he told me he decided that he didn’t want it badly enough, especially after seeing the rough treatment that his friend Jeff Sessions received during his confirmation hearings for attorney general (despite having been a member of the Senate himself for two decades).
So what did Cooper do? He strongly recommended Noel Francisco for the coveted job, as Francisco recounted to me:
After the 2016 election, the understanding was that Chuck would be nominated to serve as solicitor general and I would go in as his principal deputy. When Chuck decided that he didn’t want to go through the confirmation process, he did one of the greatest things a mentor could do: he went to Jeff Sessions and said that you should pick Noel for SG. I would not have gotten the job if not for Chuck.
Most mentors take their mentees out to coffee every now and then. Chuck Cooper made his mentee the Solicitor General of the United States.
2. Nimbleness and flexibility are key.
Very much related to its small size, Cooper & Kirk has remained nimble and flexible. Instead of focusing on one narrow area of law, the firm takes a generalist approach, an increasingly rare thing in this age of specialization. This allows the firm to ride waves (like the Winstar litigation) while they last, then move on to other areas when the work goes away.
As a former SCOTUS clerk and veteran high-court advocate, Chuck Cooper could have focused his firm on Supreme Court and appellate practice. But as managing partner David Thompson explained to me, Cooper made a conscious decision not to have the firm pigeonholed in that way.
“We enjoy the variety of trial and appellate work,” Thompson added. “Unlike most commercial cases, cases over issues like voting rights or marriage or affirmative action don’t settle—they go to trial. We work on a lot of those cases and so we’ve done a lot of trials, at least one or two big trials a year.”
Although the firm is most well-known for its involvement on the conservative side in high-profile cases concerning issues of public policy, its practice is much broader. Its corporate clients over the years have included Bank of America, Boeing, Ford, Shell Oil, and Verizon. Many of its cases are mainly about money, and it has secured a lot of it for its clients over the years: trial verdicts, settlements, and injunctive relief worth more than $10 billion.
Vince Colatriano has been at C&K from the beginning, having come over from Shaw Pittman as one of the firm’s five founding lawyers. And over the past 25 years, Colatriano has not worked on any of the prominent, politically charged matters of the firm—by choice.
“I’m not registered with either party and not very active politically, but I consider myself a Democrat,” he told me. “So I don’t always like to get involved in some of the more political matters, and Chuck from the start has always respected that. I’ve been very busy on matters that haven’t been politically charged or politically adjacent cases. I’ve been working with a great group of people for the past 25 years, and they’re a joy to work with even if we don’t always agree on political matters.”
The firm is flexible in other ways as well. It’s flexible with clients, using alternative fee arrangements to a much greater extent than Biglaw firms—which it has been doing for years, dating back to the Winstar cases. And it’s flexible with talent, having allowed remote work well before the pandemic.
“One of the things we did early on that helped us with recruiting was giving lawyers great flexibility over where they work,” Michael Kirk told me. For example, one lawyer had to leave her Biglaw firm after her spouse got relocated for his job. Cooper & Kirk hired her, allowing her to work remotely—and she has been a valued colleague ever since.
3. It’s all about the talent.
Cooper & Kirk has an unusual—and unusually successful—approach to talent management. The core of that approach: hire top talent and give them lots of responsibility, allowing them to learn and grow at a much faster rate than their peers at other firms.6 As Rachel Brand put it:
I arrived at the firm after law school and one year of clerking, and because the firm was so busy with Winstar cases, I was out taking depositions, including expert depositions, within a month or so of getting there. I also handled discovery and argued a motion or two, as a young lawyer with practically no experience—and I learned a ton.
Brand’s experience is not unique. Jesse Panuccio argued his first motion within three months of arriving at the firm, also as a second-year associate. As a third- and fourth-year associate, Noel Francisco was not only taking depositions, but examining witnesses at trial.
Another way that Cooper & Kirk has made itself attractive to bright young lawyers is by handling high-profile cases of constitutional law and by being open to, and supportive of, government service by its attorneys. Many of the firm’s lawyers have moved back and forth between government service and private practice over the years, just like Cooper himself. Before launching C&K, Chuck Cooper completed two clerkships, including a Supreme Court clerkship with then-Justice William H. Rehnquist, and served in high-level posts at the Department of Justice—first as a Deputy Assistant Attorney General in the Civil Rights Division, and then as Assistant Attorney General for the Office of Legal Counsel. He understands the appeal of both a law practice and legal career with public-law aspects—and he goes to bat for his lawyers when they seek to enter government, even if it means losing their talents at the firm.
Finally, the firm also has an approach to recruiting that’s different from most other firms, which helps it stay small. As Michael Kirk explained, instead of competing with all the other top firms for 2L talent, Cooper & Kirk hires 1L summer associates. It stays in touch with them, often helping them land judicial clerkships. And some of these former 1L summers end up returning to the firm after their clerkships (along with recruits out of clerkships, including SCOTUS clerkships, who never summered at the firm).
4. Values and ethics are paramount.
“Chuck is someone of enormous talent but also enormous integrity,” David Boies told me. “One of the most important things you need to do as a lawyer is to maintain your credibility with the court. Yes, you’re an advocate, but you have to advocate in a balanced way. You pick and choose what you use at trial, but you need to do that in a way that’s fair. Chuck was really first-rate at that.”
And Cooper imparted these values to his firm and its lawyers.
“Chuck is extremely ethical,” Jesse Panuccio said. “Whenever there was a potential ethics issue—how to disclose something to the court, what arguments to make in a case—Chuck always gave the most ethical answer.”
“We do our small part in trying to promote proper values within our profession,” Cooper said. “These include old-school values of extending courtesies to your opponents, accepting their representations until they give you reason to no longer do that, and always turning square corners in every respect with your opponents and the court.”
Its “conservative” cases, C&K lawyers emphasized to me, should be viewed as less about politics and more about values, especially the rule of law and the Constitution. “As Chuck has said to me, ‘If asked to choose between the U.S. Constitution and a policy preference, I will clutch the Constitution to my bosom every time,” managing partner David Thompson recalled.
Putting the rule of law over partisan politics is why, Thompson explained, Cooper represented Democrats like Senator Robert Byrd and Representative Henry Waxman in challenging the line-item veto. Although the line-item veto was popular among Republicans, who saw it as a tool for promoting fiscal conservatism—it was pushed by President Ronald Reagan, then included in the Republicans’ “Contract with America” in 1994—Cooper saw it as unconstitutional. He challenged it in the Supreme Court—and prevailed.
Or take same-sex marriage, which Chuck Cooper and Michael Kirk litigated against in Hollingsworth v. Perry—not because they’re against marriage equality as a policy matter or on a personal level, but because they did not see the issue as controlled by the Constitution. As a former colleague of Chuck Cooper who does not share his politics wrote to me back when I was at Above the Law, defending his former boss against criticism for his litigation against same-sex marriage:
What I’d say in defense of Chuck was that he came to that litigation with good faith and principle. In his sincere view, the U.S. Constitution had never been understood to codify a right to same-sex marriage and never should be so understood, unless and until amended; recognition of same-sex marriage would thus be left for voters to decide.
Here’s how Michael Kirk put it to the National Law Journal:
“As a U.S. citizen, I couldn’t be happier that we lost [in the marriage-equality litigation], because I think it’s the right thing for our country and the world,” Kirk said, adding that as a lawyer, however, “we should have won,” so that the country could decide the issue democratically, rather than by judicial decree.
“This is one of the things that’s hard for people who are not lawyers to understand: For lots of our cases, what you feel about the law and what you feel about the issue can be two different things.”
I suspect that Chuck Cooper’s views on “the law” versus “the issue” are different. A year after arguing against a constitutional right to same-sex marriage, Cooper proudly celebrated the same-sex marriage of his daughter.
Over the past 25 years, Cooper & Kirk has played a role in some of the most consequential cases in this nation’s history. Its lawyers have garnered copious coverage in the media. And its financial rewards have been robust, with associates earning Biglaw pay and partners making millions.7 But at the end of the day, the headlines garnered and the hours billed aren’t what make Chuck Cooper the most proud.
“The thing I marvel at the most is the success we’ve had in attracting extraordinary young lawyers to throw in with us, if not permanently, at least for a time,” Cooper told me. “Many of our colleagues from the past 25 years have gone on to extraordinary positions of great prominence in the profession. I’m proud of the place that we have established for ourselves in the American legal community.”
And the feeling is mutual: the lawyers who have passed through its halls remain deeply proud of Cooper & Kirk.
“The firm embodies an older—and better—way of practicing law,” Jesse Panuccio told me. “It’s based on collegiality, mutual respect, interesting cases, and very hard work. At the same time, the lawyers have lives outside the office. I think of them as a merry band of litigators, just based on how much they love what they do.”
“It’s different compared to Biglaw, a very personal experience. People are very proud of having worked there. To this day, I consider myself a Cooper & Kirk guy. In my mind, that’s where I learned to be a lawyer.”
Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world, as well as the ability to comment on posts. You can reach me by email at email@example.com with any questions or comments about Original Jurisdiction, and you can share this post or subscribe using the buttons below.
This explains why David Boies recruited Chuck Cooper for two high-profile matters: the Blue Cross Blue Shield antitrust litigation, in which they both serve on the plaintiffs’ steering committee, and Giuffre v. Dershowitz, in which Boies’s client, Jeffrey Epstein victim Virginia Giuffre, is suing Alan Dershowitz for defamation. (Boies was disqualified as Giuffre’s lawyer in the Dershowitz case because he could end up being a witness in it.)
The Winstar lineup: “SOUTER, J., announced the judgment of the Court and delivered an opinion, in which STEVENS and BREYER, JJ., joined, and in which O'CONNOR, J., joined except as to Parts IV-A and IV-B. BREYER, J., filed a concurring opinion, post, p. 910. SCALIA, J., filed an opinion concurring in the judgment, in which KENNEDY and THOMAS, JJ., joined, post, p. 919. REHNQUIST, C. J., filed a dissenting opinion, in which GINSBURG, J., joined as to Parts I, III, and IV, post, p. 924.” Got it?
And yes, that’s right: Chief Justice Rehnquist, for whom Chuck Cooper clerked, was one of the two dissenters—joined by Justice Ginsburg, surprisingly enough.
Cooper & Kirk is conservative, but there’s no reason why its model or something similar couldn’t be used by liberal or progressive lawyers. In fact, I’d say that Kaplan Hecker & Fink reminds me of a Cooper & Kirk on the left: it attracts top-shelf talent by offering them the opportunity to work on a great mix of constitutional and commercial cases, a lot of early responsibility, and market or above-market compensation.
These days, of course, the meetings are by phone or Zoom. Although the firm has someone in the office to check the mail, answer the door, and receive deliveries, almost all of the C&K lawyers have been working remotely during the pandemic.
Chuck Cooper is known among D.C. lawyers for his sartorial splendor. He has appreciated the importance of looking sharp ever since he was a high school student working at the best men’s clothing store in Huntsville, Alabama. Many of his best customers were lawyers, which only increased his interest in law as a career (especially after he realized his dream job, shortstop for the L.A. Dodgers, wasn’t happening).
When Cooper and I spoke via Zoom, I was impressed by his impossibly crisp, monogrammed dress shirt. But he told me that the pandemic has cramped his style: “These days, I’m wearing gym shorts with my white oxford.”
This aspect of the Cooper & Kirk model is not unique. It’s the approach of firms like Susman Godfrey, Wachtell Lipton, and many more.
For associates, C&K pays market salaries and bonuses. It also pays the market rate for SCOTUS clerk bonuses. (It tried to resist this but then reversed itself, finding that it was losing out on too much talent.)
For partners, Cooper declined to provide any information, citing the firm’s old-fashioned commitment to discretion. But here’s one data point from news reports. Former Nevada attorney general Adam Laxalt recently resigned from the Cooper & Kirk partnership to run for the U.S. Senate in Nevada. According to the personal financial disclosure that he filed last month, Laxalt earned $2.2 million as a Cooper & Kirk partner—and keep in mind that he was one of the firm’s newest partners, having joined only in March 2019.