Jonathan Polkes ’84 makes the case for being a trial lawyer
In May, Jonathan Polkes ’84 secured a blockbuster $460.8 million jury verdict as lead counsel for Regeneron Pharmaceuticals in a hard-fought, drawn-out antitrust suit against Amgen over sales practices for the cholesterol-lowering drug Repatha. Yet this case was hardly the first time Polkes has found himself in the center of a significant case in the headlines, complete with high stakes and dramatic courtroom showdowns.
American Lawyer has twice named Polkes Litigator of the Year, and the National Law Journal cited him as a Litigation Trailblazer in 2016. In this Q&A, Polkes, who is global co-chair of White & Case’s litigation practice, talks about how NYU Law fostered his interest in trial work, recalls the cases that shaped him professionally, and argues that trying cases is a vanishing skill set.
Tell us about some of the cases you’re presently working on.
I’m representing the Walt Disney Company in a significant securities class action lawsuit in California. And I’m representing Warner Bros. Discovery in a securities class-action that’s been filed here in New York. I also represent Morgan Stanley in a bunch of things that are ongoing—including the legal fallout after Elon Musk’s acquisition of Twitter. I represent Goldman Sachs regularly. And I’m representing AIG in connection with a series of legal consequences from a subsidiary filing for bankruptcy. It’s a very busy docket. I’m just grateful to be surrounded by some of the best lawyers in the world. They enable me to do what I do. The work is incredible, even though I think that trying cases is a dying art.
How did you develop an interest in law?
I was born and raised on the Upper East Side, and I went to Haverford College, which is a small liberal arts college in Pennsylvania. I became interested in law the moment I realized I couldn’t do anything else with a philosophy degree. The idea of coming back to New York and being in [Greenwich Village] appealed to me. That’s why I focused on NYU, which had the reputation of having a law school that people actually liked going to. But I didn’t know what to expect.
What were your experiences like at NYU Law?
It was the early ’80s and really fun. Washington Square Park was a place where you could hang out. I lived in the Mercer Street dorms, and the university gym was right across the street. I would go there, swim some laps and then hang out at Fanelli Café and the Great Jones Cafe. Life was good.
The Law School was full of really smart and ambitious people. Now I must confess: in my first year, I was not the greatest law student. My mind was elsewhere. I was 21 years old and blasting Grateful Dead music. I just wasn’t ready emotionally. By the third year, I found my place. Fortunately, I had a lot of great professors. I was in the Legal Defense Clinic with Chester Mirsky and James Cohen. I was also a research assistant for [University Professor Emeritus] Anthony Amsterdam, who was truly a legend. Eleanor Fox [Walter J. Derenberg Professor of Trade Regulation Emerita] was fantastic as my torts professor. And Burt Neuborne [Norman Dorsen Professor of Civil Liberties Emeritus] was my constitutional law professor while he was still at the ACLU. All things considered, I learned that contracts were not my forte. What interested me about the law were the practical elements. Being in court. And so NYU really launched my career in that sense.
What happened after you graduated?
Because I was so young in law school, I wanted some time on the back end. I applied for a work-study grant to live in Israel, where I clerked on the Israeli Supreme Court. That was just a very serendipitous and amazing experience. And then I came back and clerked at the federal district court in Washington, DC for Judge [William B.] Bryant. He was the court’s first black chief judge and a beloved figure. And then I briefly went to a law firm before going to the US Attorney’s Office in the Eastern District of New York, where I stayed for five years. I eventually became a supervisor in the White Collar Crimes Unit.
In the early 1990s, I made a career pivot and joined the equities division of Goldman Sachs. But I was miserable not being a lawyer. In under two years, I left Goldman and joined Cadwalader, [Wickersham & Taft]. At the time, Cadwalader was on the verge of a huge trial [in 1994] involving Lehman Brothers, for which they lacked a lead trial lawyer. The case [concerning a civil action over debt] involved a state-owned metals company in China. It was essentially the government of China that was on the other side. That case required me to fly all over the world. I went to Hong Kong dozens of times as well as Beijing, London and other places. In many ways, that was the formative case that I really cut my teeth on. [The litigation was settled out of court in 1996]. I remained with Cadwalader through 2005. Then I joined Weil, Gotshal & Manges, where I handled litigation for 20 years before moving to White & Case last March.
How did white-collar cases become a specialty for you?
Chance had a lot to do with it. When I was at the US Attorney’s Office, everyone started in general crimes. You were supposed to be there for a minimum of a year, handle about four trials, and then move on to narcotics. This was during the crack epidemic, when drug cases overwhelmed prosecutors’ offices. You could then go into one of the elite units—either white-collar, organized crime, or special prosecutions. I’d been in the general crimes unit for only six months. And then there was a high-profile prosecution of Eastern Air Lines. We ended up indicting Eastern Airlines, and it filed for bankruptcy not that long after [in 1991]. But they needed someone. I would just say that I skipped to the head of the line.
Looking back, which cases are especially memorable to you?
Certainly the Regeneron case. It was as real as a courtroom battle could get, with complex legal issues, a fantastic judge, a jury, and first-rate law firms slugging it out. It just doesn’t get better professionally. And then during the financial crisis in 2008, I was in charge of the entire litigation effort on behalf of Lehman Brothers after it filed for bankruptcy. That included the US Attorney’s Office in criminal Investigations, SEC investigations, probes from state attorneys general, class action lawsuits, and bankruptcy examiner investigations. That case really helped me leapfrog to the next level.
There was also the [2015 insider trading] trial for Morgan Stanley. The company was being sued by a Russian oligarch [Oleg Deripaska]. But Morgan Stanley had the incredible courage of its convictions. It did nothing wrong. And Morgan Stanley trusted me as the case went to trial with a very good law firm on the other side. We ultimately won the case. For me, that trial was a very proud moment.
You mentioned before that trial law is a dying art. Can you elaborate?
Trial law is an art. You learn by watching lawyers who are good at it and making what they do a part of your repertoire. Now it’s just a hard empirical fact that trials are becoming infrequent. When I was in the US Attorney’s Office in the ’90s, every judge in the Eastern and Southern District of New York was more or less on trial continuously. And that’s how people like me were able to get dozens of trials under our belts. Today, most judges are doing about four trials a year. It’s a completely different environment. On the criminal side, it’s because of the immense power of the prosecutors’ charging discretion. Prosecutors can make it unreasonably risky to go to trial by pushing various levers. On the civil side, the financial stakes of risking $500 million on the judgment or whims of random jurors is inherently unreasonable from a risk management perspective. Settling is insurance.
Plus, going to trial is more expensive than ever. You’ve got mock trials, jury consultants, vendors, and experts. And now young lawyers are just not being trained on trying cases. At the US Attorney’s Office now, I hear people come out with four or five trials. I had 20. So it’s harder to see where the next generation of skilled and experienced trial lawyers is going to come from.
What piece of advice would you give to current students at the Law School?
This profession was always hard. Demands were always high and the odds of making partner were always low. But it’s on steroids now. Everything’s harder. And that’s partly because we make so much more money now. With the high salaries has come a lot of dissatisfaction and career uncertainty.
But you have to find something that brings you pleasure professionally. I don’t mean what every graduation speaker says: “Find your passion, just do it, and everything will be fine.” It’s more nuanced than that. You won’t be great at what you do if you don’t give up a lot of weekends and late nights. I’ve done it all, and it was all worth it. You have to be realistic about what being a lawyer means to you—whether it’s working as an associate at a big firm, going to the Environmental Defense Fund, or working as a public defender—and if it’s something that turns you on.
Do you have any unrealized goals that you still want to accomplish in the future?
I love being a courtroom lawyer and a counselor to clients. But no matter how successful you are or how wonderful your career is, there’s always going to be regrets and opportunities missed. On the other hand, I’m feeling very young and energetic. At the end of the day, I am convinced that the best days are ahead. I’m not done yet. I have all kinds of ideas for the next chapter.
This interview has been condensed and edited.