Q&A With Nossaman's Kurt Melchior
Nossaman Partner Kurt Melchior was profiled in Law360 as part of its popular Q&A series. Mr. Melchior's full Q&A can be found below.
Kurt W. Melchior, a partner with Nossaman LLP, has experience in complex litigation, including insurance coverage litigation. He represents policyholders in large-scale insurance coverage suits, acts as an expert witness with respect to insurance coverage, defends antitrust cases asserting price-fixing and other restraints of trade, litigates antitrust consumer fraud, securities, contract and real estate matters including numerous class actions and represents physicians, lawyers and accountants on matters of professional competence.
Q: What is the most challenging case you have worked on and what made it challenging?
A: Nobody tries class actions; but I have tried two before juries. I represented a developer in defense of a class action brought on behalf of 6,000 second-home lot buyers, which alleged that the developer had misled buyers about the availability and cost of water and sewer services and many other things and had a nine-figure exposure. With my client's total support, I led the trial team, trying the case before a jury and an unsympathetic judge for nearly six months. After eight days of deliberation, the jury returned a total defense verdict. The appellate court, affirming that judgment, called this an "epic trial drama."
Probably the worst moment of many was when the opposition left a letter under my door one evening, which contained a mid-eight-figure settlement demand and announced that they would negotiate only with in-house counsel. In-house counsel backed me completely.
Q: What aspects of your practice area are in need of reform and why?
A: Litigation has become a paper-shuffling exercise. Few young lawyers have any trial experience — rather, "litigators" spend years doing discovery, but as the cases approach trial, they settle. The volume of litigation and the expense and risk of trial may have removed the concept of the "trial lawyer" from the practice of civil law: Can that be fixed? If so, how, since these risk-benefit calculations are not likely to change?
The following, a part of the paper-shuffling, is likewise not as much a matter of law reform but of social change. Unfortunately, the use of the Internet for communications has made discovery much too expensive and frustrates efforts to resolve problems promptly and at reasonable cost. Yet, I see no alternative to discovery of computer-stored information (CSI). A breakthrough of reform is needed but has not been found to date.
Q: What is an important issue or case relevant to your practice area and why?
A: Concentration of power in smaller numbers of competitors affects all areas of business; yet, governmental controls are fitful and random. We see this in many places, such as the concept that concentration does not violate the antitrust laws unless it is acquired by wrongful conduct, in the difficulty competitors have in stating a claim for relief when they are forced out of their field or with customers when their choices and price options become limited through concentration; and indeed, in the limited and random governmental enforcement of antitrust and even securities laws.
Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.
A: Howard Friedman of Loeb and Loeb, unfortunately retired; Joe Cotchett of Cotchett Pitre & McCarthy; Jim Brosnahan of Morrison & Foerster. Each of them are skilled communicators whose social values also shine through their work. Howard won some huge business disputes; Jim is highly visible on behalf of unpopular causes in addition to his high rate of success in representing large companies; and Joe virtually defined the category of plaintiffs' lawyers with the knowledge and skill to take on complex business issues.
Q: What is a mistake you made early in your career and what did you learn from it?
A: Graduating from law school, I took a job with a U.S. Senate Committee, thinking it would put me in the midst of the important issues in the committee's charge; but the job was dull and routine, and I soon left. It taught me clearly that things are often not what they seem, especially in public life.
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