David Elsberg on Launching the Trial Firm, Elsberg Baker & Maruri

David Elsberg appears to have another important skill other than trial lawyering – shaking up the legal market by putting together standout trial law firms.

Elsberg Baker & Maruri, which he co-founded in February, is his second Quinn Emanuel spinoff in six years, following the launch of Selendy & Gay in January 2018 where he was co-Managing Partner with Jennifer Selendy for the firm’s first four years.

Elsberg, former co-chair of Quinn Emanuel’s Investment Fund Litigation practice, founded Elsberg Baker & Maruri with Rollo Baker and Silpa Maruri, who are respectively former co-chairs of Quinn Emanuel’s Corporate Governance and Delaware Litigation practices, along with Jared Ruocco (a Quinn Emanuel alum), and two former Selendy Gay Elsberg partners, Michael Duke and Vivek Tata. The goal of the new firm is to be “the best litigation, arbitration and trial firm in the country,” he says.

The firm launched only 7 months ago, but it has already completed three arbitrations and trials, with more set to take place before the end of this year. The firm’s roster of clients include blue chip companies across business sectors, including hedge funds and private equity funds, which have been a mainstay of Elsberg’s practice for decades.

Elsberg says “we’re very fortunate that, right out of the gate, major clients that could hire any law firm in the nation have entrusted us with their most important trials.” This is not surprising, given the track record that he and his partners have amassed over the years, winning multibillion dollar trials on both sides of the “v.” 

Elsberg earned an undergraduate degree in history at Duke University and his law degree at Harvard Law School. He recently spoke to Lawdragon about his career and his ambitious new venture.

Lawdragon: Can you tell me what first led you to a career in the law?

David Elsberg: Growing up in my family, dinner was basically everybody arguing all the time about current events and about almost any other topic you can imagine. There could be two separate arguments going on at the same time, and then they would cross over. That was just how it was and it was fun. Then when I was in high school, I took a history class with a fantastic teacher, and the way he taught the class was asking somebody to give their view on the issue that we were studying. He would call on somebody else who disagreed, and the debate would ensue. He commented that I seemed to enjoy it and asked if I had thought about being a lawyer. Then I chose history as my major in college and continued to enjoy the same type of thing. So there was something I loved doing and it turned out there is a job where you’re able to do it.

LD: It sounds like you were leaning toward being a trial lawyer from the beginning.

DE: Oh, yeah. When I thought lawyer, the only thing I thought about was a trial lawyer.

I did a summer associate job after my 1L year, at a full-service firm that had different departments you were supposed to rotate through. I started in litigation and then they rotated me into the corporate department. I was there for maybe a couple weeks and I wasn't loving it. So, I asked if I could skip rotating through departments and I ended up doing only litigation the entire summer.

LD: Early in your career, did you have any mentors who helped you figure out your career path?

DE: Right out of law school I was lucky to clerk for Judge Amalya Kearse on the 2nd Circuit. Judge Kearse is brilliant, and I learned a tremendous amount about how to think and write about legal problems. When I was a young partner at Quinn Emanuel, and later as a not so young partner, I got to work with some colleagues I thought were among the very best trial lawyers in the nation. You work side by side with people like that, you see what they do, and you pick things up.

I think the word is out that if you need aggressive trial lawyers who can get up to speed quickly on your most important cases, we're on the short list.

LD: Looking at your own cases, whether when you were an associate and you were getting that standup experience or later on as partner, which ones stand out as most memorable to you?

DE: One is memorable because it was just an oddball situation, and it was very early in my career. The adversary served a complaint by mail. I remembered from studying for the bar exam that in order for mail service to be effective under New York law, the complaint had to be sent from a mail receptacle within New York State. That rule has since changed. In any event, I noticed that the last few digits on the postmark did not look like a New York ZIP code. But, frustratingly, the postmark was cutoff, so it was impossible to know the full ZIP code.

So we asked an official at a post office in Kearny, New Jersey to take a look at the cutoff postmark to see if they could tell us where the envelope originated from. They were able to confirm that it originated from New Jersey, not New York. So in one of my first oral arguments ever, I end up in front of a judge arguing that service was invalid, which was a problem for the adversary especially because the statute of limitations had run.

I was nervous to begin with, because it was one of my first oral arguments. The judge reacted by saying that it’s an unorthodox argument that he’d never heard advanced before. I thought I was being raked over the goals for being too technical. But then the judge said he thinks the argument is right. Not rocket science, and not the type of thing that makes headlines, but at the time it felt like a big deal.

Another memorable one was when I was at Wachtell Lipton. It was the first trial I ever worked on. It became a landmark decision, called IBP v. Tyson. As a young associate, I was only doing behind-the-scenes stuff, but it was thrilling to be on a trial team. I got to see lawyers who were at the very top of their game. In the middle of the trial, I was sent to do a deposition. It was meant to be sort of a nothing deposition, but the witness gave some surprising answers that were actually kind of important. And then [Wachtell attorney] Bernie Nussbaum ended up playing a couple video clips of the deposition at the trial. I was really bit by the trial bug and knew I wanted to do trials over and over again.

LD: What's keeping you busy since you launched the new firm?

DE: There is a confidential arbitration where there's a dispute among the founders of a major private equity fund. Another confidential arbitration involves three out of the four managing members in an investment fund who are looking to remove the fourth one. And a third involves a dispute between two of the world’s largest global information technology services companies.

We’re also representing the world's largest independent oil trader in a dispute about cargo that was seized when the cargo was going through customs at its destination. An interesting part about it is that the party that we're arbitrating against did not sign the agreement that has the arbitration clause in it. And so, we had to go to federal court for a decision saying, “Yes, you did not sign the contract with the arbitration clause in it, but nonetheless, you are bound by the arbitration clause and have to arbitrate it.” I’m also doing a court case involving a multibillion-dollar dispute among family members who are the heirs to one of the largest real estate empires in New York.

We’ve been hired to do cases where a trial threat is important, and as I mentioned in the seven months since we threw our doors open, we’ve already done three with more to come before the end of the year. I think the word is out that if you need aggressive trial lawyers who can get up to speed quickly on your most important cases, we're on the short list.

If you stick to only taking the shots you’re very likely to win, then you’re not adding as much value for your client as you could.­

LD: What would you say the goal of the new firm is?

DE: To be the best trial, litigation and arbitration law firm in the country. The way we're getting there is by only hiring people that we think are true stars. We’ve been fortunate that a number of people who were top of the class at the top schools in the country are reaching out to us with the same passion for trial work. We've already turned down a very large case that we could have taken if we were willing to hire, say, 20 additional associates on top of the ones we have now, very quickly. We turned it down because that's not how we're looking to grow, we’re doing it much more selectively.

LD: How would you describe your style as a lawyer?

DE: I try to stay attuned to the client’s objectives, understanding that for the client, litigation is not an end in itself but a way to get to a goal. Put another way, litigation is an asset for the client and the job is to get as much value as possible from the asset, however the client defines value. I try to outwork the other side, diving into the documents and the case law, and I try to take positions that are thoughtful and strategic, without hesitating to move aggressively in court to get the client the best result.

Many lawyers, even litigators, are risk averse and will avoid making moves just because there is some realistic possibility of losing. I think that’s not the right way to look at it. It’s not always a binary thing: Do it if you’re likely to win, don’t do it if you’re going to lose. It’s more nuanced. Don’t be motivated by fear, instead inform the client of the risks and then take the risks that your client recognizes as smart, calculated risks that will help get to the right result.

Just as an example, a 60 percent chance of losing a motion on a meritorious argument may be worth the shot, because you may win – and because even if you lose, there could be other benefits, such as educating the court about important facts and themes that will be important later, or forcing your adversary to lock into a position that will create problems for it down the road. If you stick to only taking the shots you’re very likely to win, then you’re not adding as much value for your client as you could.­

LD: What do you find most fulfilling about your practice?

DE: I've had this poster up for a long time. It's a New Yorker cartoon, and it says, "What if my bliss happens to be suing people?" I'm very, very lucky. I love this job, I’ve always loved it. I've said on occasion that there are parts of the job that I would do on a Saturday for free. Cross-examinations are way up there in terms of what really gets your blood pumping. When it works, it’s a blast.

LD: What advice do you find yourself giving to young lawyers most often?

DE: If you want to be a trial lawyer, do everything you can to get early experiences getting into court. TROs are great opportunities for young lawyers. Raise your hand for the TROs, including the ones that come in on a Friday night, because things move fast and there are often opportunities for associates to do things like take depositions and do court arguments. And if you get those experiences, then there's that upward cycle where you've done it and so you can do more court work.

Also, just ask and ask and ask and ask again. When you're on cases, ask the more senior lawyers to do depositions, to do arguments. Even if the answer is “no,” word gets out that you’re hungry for the experiences. So when something comes up, you’re front of mind.

LD: What do you do for fun outside of your practice?

DE: I have three teenage kids, and there’s nothing better than spending time with them and my wife, Natalie. We like to spend time in upstate New York hiking, swimming in a nearby lake in the summer, and skiing in the winter. And I’m a Knicks fan, I have a great time going to games at Madison Square Garden when I can. And, of course, just like when I was a kid growing up with my parents – dinner time is always full of lots of lively arguments, sometimes two or three happening at once, and I still love that, too.