Photo by Eli Meir Kaplan.
Brian Stekloff is passionate about creating innovative approaches to trial practice. Just 45 years old, he’s already tried over 30 cases and has a good sense of what works and what doesn’t in the courtroom. That’s part of why he co-founded Wilkinson Stekloff, in 2016. His goal was to develop a unique business model optimized for high-stakes, bet-the-company litigation while developing the next generation of trial lawyers in a democratic, inclusive boutique environment. By any measure, the firm has been a success so far — based in D.C., Wilkinson Stekloff represents large corporations in major trials and litigations all across the country, in both state and federal court, and runs a thriving pro bono trial practice in which numerous associates have taken lead trial roles.
“One of the advantages of our firm,” says Stekloff, “is that we don’t have a lot of bureaucracy, so we are always open to different subject areas.” Those subject areas span a wide variety of cases involving product liability, class actions, antitrust and sports. Among other matters, Brian is currently representing the NFL in an antitrust litigation and Glenmark Pharmaceuticals in a criminal antitrust case, and is serving as national trial counsel for Monsanto in ongoing mass tort litigation involving its popular herbicide Roundup.
Stekloff says he first fell in love with law through “To Kill a Mockingbird,” but realized it could be his career when he enrolled in a criminal justice clinic and represented indigent defendants charged with misdemeanors during his time at Georgetown University. After clerking for two federal judges and working as an associate at a large international law firm, he then became an Assistant Federal Public Defender for the Southern District of Florida. There, Stekloff chaired or co-chaired 22 felony jury trials and obtained full acquittals in nearly one-third of them, which, notably, is at least double the national average. Today, he serves on the Criminal Justice Act Panel for the District of Maryland. He is actively involved with the panel, and had a trial in July 2021 in which two Wilkinson Stekloff associates were able to play prominent roles, including giving the opening statement and closing argument.
Since returning to private practice, Brian has gone on to defend both individuals and corporations in criminal and civil cases. He has represented Fortune 500 companies including FedEx Ground, Pfizer, Medtronic, Monsanto, Bayer and more. He is known for getting results. Two of his most significant victories as a first-chair trial lawyer are the first-ever defense verdict for Monsanto in the Roundup litigation, which he secured just weeks ago, and the first jury verdict for Bayer in the Philadelphia Court of Common Pleas in a mass tort proceeding involving Xarelto. With such a prolific trial career, it’s no wonder he has been nationally ranked by Chambers & Partners and recognized as one of Lawdragon’s 500 Leading Lawyers in America. Part of Wilkinson Stekloff’s success is the firm’s commitment to diversity. Stekloff explains: “Focusing on diversity is really important but unfortunately rare in the market. It’s not only important within the firm, but also in terms of winning cases. You can’t figure out how to win over a diverse group of jurors if you only have your perspective, no matter what your background is.”
Those perspectives are included in a firm with nearly 60 percent women attorneys, and one that prioritizes hearing from all of its attorneys in a dedicated group environment free from the pressures and constraints of hourly billing. That philosophy of democratization has formed the basis for an incredibly successful firm, and a career full of wins for Stekloff.
Lawdragon: Tell me about the process of starting your own firm. What led to that decision?
Brian Stekloff: We started our firm in February of 2016, so we recently reached our five-year anniversary. I had worked with Beth Wilkinson, who was one of the other founding partners, on and off since 2003, and for a while we had talked about opening our own firm. We really just wanted to take some of the things that we enjoyed from Big Law, but then put them in a smaller, boutique environment where we were focusing on trial practice and where we could recruit and train the next generation of trial lawyers.
Beth was a prominent trial lawyer at Latham with me many years ago, when I was first starting out. I walked into her office, which is not like me because I am somewhat introverted, actually, and I said, “I’m Brian, I know you’re a trial lawyer, and I want to be a trial lawyer. I want to be a public defender. Can I get on one of your cases?” And she gave me a shot and I ended up doing all my work at Latham with Beth. She became my mentor from that moment.
LD: Why did you choose her?
BS: You could just tell she was a dynamic lawyer who had incredible judgment. I knew she had also done criminal work as a prosecutor for many years, and that type of work appealed to me. Even though I knew I wanted to be on the public defender side, and she was a prosecutor, the combination was just a great opportunity within the office. And it obviously all worked out. Here we are 18 years later, and we are in practice together.
LD: That’s really cool. And I’ve got to say, I like that you had this female partner who was your mentor. I love that female lawyers are able to become mentors now.
BS: Yeah, I’m really happy about that. It actually is also, I should say, one of the reasons we started our own firm — to highlight the importance of diversity in a successful trial practice. Our firm was originally named Wilkinson, Walsh and Eskovitz. The Walsh was Alex Walsh, and she’s now gone onto the plaintiff side and built her own boutique. But at the time, we had two women as the first two named partners, and I was so proud of that.
LD: Good for you. Do you focus on that when you are hiring?
BS: Yes, we are very focused on that in our hiring. We don’t set numeric goals or anything like that, but our hiring structure ensures that we’re taking on diverse candidates. We require every candidate to meet with a broad cross-section of the firm, which means that each candidate will meet with the majority of the partnership and at least 10 people overall.
LD: Oh, that’s great, definitely more than average.
BS: Right. And in our firm that means that they’re seeing people from many different backgrounds, because we are a majority-female legal team and we also have multiple attorneys of color, LGBTQ+ attorneys and other diverse attorneys. And all of those folks’ perspectives are factored into our hiring decisions.
And we make sure that our whole staff is diverse as well, not just our attorneys — that goal extends to our IT staff, legal support and legal assistants too.
LD: Oh, that’s good to know. I have also heard that clients are getting more and more focused on that, too. They want their legal team to be diverse.
BS: Yeah, I mean they should, and they do. Their attorneys will be appearing in front of jury pools that represent all of America and it’s important that their lawyers reflect that. I think we are well positioned for that, and we take it very seriously.
LD: That’s wonderful. Then, one interesting thing about your firm is that you operate on a flat-fee structure. Tell me about that.
BS: Yeah, we are creative and flexible depending on the matter and where we are coming in on the matter. But we typically charge either by the phase of litigation that we are involved in or by month, depending on what stage the litigation is in. So we don’t bill hours.
LD: Oh, that’s so different.
BS: It is. We’ve found that that structure has been very advantageous, both for our clients and for us. For our clients, it provides them with certainty, and they know that they are going to get a lot of our resources on every one of their matters. Then, I think for our attorneys it provides a lot of advantages as well, because there is less of a focus on how much time it takes to do work and more on doing great work.
There’s one other benefit from our structure. Our clients are going to pay the same fee for a month regardless of how many attorneys are on the matter. That means we can incorporate our team members into all of the significant events, whether it is a court hearing, a deposition, or a strategy meeting with the client. Because of that, I think we are able to train our attorneys more holistically, and our clients benefit from a team that is not siloed into different areas of the case.
LD: That makes so much sense. What a smart structure. And is your firm still growing, or do you like the size you are at right now?
BS: I would say we’re slightly growing. Right now we are at about 35 to 40 attorneys. I think at our peak we were at around 45. So we are busy, and especially when the pandemic ends and trials really start again, we expect to be very busy. Even though we’re growing slightly, at the same time we really want to maintain our culture. We have no plans of trying to become a firm with 100 attorneys, for example, but we are always looking for diverse attorneys looking to be trained to become trial lawyers.
LD: That’s great. Speaking of younger lawyers, when did the idea of being a lawyer first come to you?
BS: I actually thought I would be a doctor when I was first in college. I started in biology, but then shifted to political science and to law school. In law school I started to really like litigation-related subject matters. I liked civil procedure; I liked evidence. And then in my third year I was part of something at Georgetown called the Criminal Justice Clinic, where you are the lawyer for defendants who are charged with misdemeanors in D.C. Superior Court.
And so I was in court in those cases and just fell in love with it. The public defender aspect of it, but then also the trial, courtroom litigation aspect of it. I think that was the cherry on top, whatever analogy you want to use, for my plans. And then it played out where I clerked for two district court judges for a couple of years.
LD: How was your experience clerking?
BS: My judges were both amazing. To me, they epitomized what every litigant should expect from a judge: hard-working, prepared, patient and fair. Of course, they are both also brilliant. And I loved trials and saw several trials while I was clerking. After that, I went to Latham, and that is where I met Beth Wilkinson, who, as I said, is my other founding partner. Latham is a great law firm, but also I started to realize that I could just get lost as a litigator, and I wanted to try to control my own destiny.
LD: That’s wonderful. Then, in terms of your trials more specifically, I wanted to talk about the Monsanto case you are involved in litigating, which involves claims that those who use Roundup weed killer were at risk for developing certain types of cancer. It must be under intense public scrutiny. Can you explain the case a bit? How did you first come to take the case on, and what is significant about it?
BS: So, when Bayer acquired Monsanto, they became responsible for overseeing the Monsanto litigation. I had done some work for Bayer in the past, so that’s when I came in.
I’ve now tried two of these cases to verdict—the first federal court trial, in front of Judge Vince Chhabria, and a state court trial involving a child plaintiff. We lost the first case after the jury was out for approximately a week on the issue of causation. I think we litigated a really strong case, but we had a challenge with our jury because there was a lot of prejudice against Monsanto and pesticides and chemicals generally, particularly in the San Francisco Bay area. After the trial, we were able to convince Judge Chhabria to reduce the damages, and the case is still on appeal. Our damages from the jury were significantly lower than in the other cases Monsanto had against them.
On a happier note, we recently won a complete defense verdict in state court in Los Angeles. It was the first jury verdict for Monsanto in a RoundUp case. It was really thrilling to get a second crack at the subject matter, and I’m proud that we were able to deliver a great and long-awaited result for our client. It was a hard case—the plaintiff was a child with cancer, difficult family circumstances, very sympathetic—but the jury ultimately understood that RoundUp had nothing to do with it.
LD: That’s interesting. So, there have been some huge verdicts against Monsanto, up to over $2 bullion. How were you able to turn the tide?
BS: The biggest thing was being able to be self-critical and identify and then address our shortcomings. We felt really strong about the way we had tried the first federal case and it was somewhat tempting to approach the second case the same way and prove we had the right approach. And we did carry some things forward; for example, in both cases, we succeeded in persuading the judge to reverse bifurcate the case so the jury could focus on causation and the scientific evidence up front.
But ultimately, success as a trial lawyer is about being adaptable and not falling in love with your case or your own ideas. We looked carefully at the record in the second case to figure out the best approach to those facts. Ultimately, we focused pretty closely on the issue of exposure—how much Roundup the plaintiff had actually been exposed to. That was really not something we discussed in the first trial, but it seemed like the right approach on the facts of the second case, and the jury apparently agreed. I was proud of our team for having the confidence to pivot to a different strategy.
LD: That makes a lot of sense. Now, going back a bit, I wanted to ask about your time as a public defender. It just seems like such an excellent training ground for anyone who wants to be a litigator. Were there any lessons from that time that you still bring with you in your practice today?
BS: Absolutely, a couple of them. My first lesson is something like the Malcolm Gladwell 10,000-hour mastery theory. I don’t know that I have 10,000 hours, but I do think one of the most helpful things for becoming a trial lawyer was just getting practice standing up in front of a jury, doing an opening, doing cross-examination and closing. The whole time I was making mistakes and then learning from them. And public defenders, unlike a lot of prosecutors, conduct a lot of cross-examinations, which I think has really paid off for me in private practice where strong cross-examination skills are a necessity.
Similarly, I would say that as a trial lawyer you really have to find your own style. I can watch amazing trial lawyers, but it doesn’t mean I can replicate their style or the way that they present things in front of the jury. I was able to pick up different techniques from different lawyers I watched so I could form my own style.
The other thing I learned was that you have to earn credibility from the jury. As a public defender, your adversary is often the United States Government, who has automatic credibility. So I think I learned that you have to take advantage of every step of the trial to build up that credibility, so that by closing you’ve convinced them. You can’t just walk in and expect that a jury is going to believe you, so you have to tell them what you are going to do at the beginning of the trial and do exactly what you told them.
LD: Interesting. So, would you say your style as a litigator is that you are a straight shooter?
BS: Yeah, I would say that I’m a straight shooter and I don’t try to fight everything. I think one of the biggest lessons I learned is that you need to fight the things that matter. Getting in a tit for tat over every issue is not going to be persuasive to the jury. To me, in order to be persuasive, you have to be honest and avoid fights over little things that should not impact the jury’s decision.
Also, I’d say you have to edit. I think some lawyers just want to overwhelm the jury with everything they think is important, but juries generally do not remember the vast majority of what happens at a trial. So, you have to focus on the core themes, the core evidence and repeat it in different ways so that the jury understands it and finds it persuasive. That’s what will ultimately win the case.
LD: That’s so helpful. Tell me more about what you enjoy about this practice?
BS: I love the work and collaboration. I think that one of the great things about our firm is that we have a culture of brainstorming. I want to hear from every attorney on my teams, from the first-year associate to the partners. We have diverse teams for this exact reason: You want a diverse perspective on issues that are going to be presented to a jury. I like when people challenge me and come up with different themes, or different ideas about a case. I think it’s so important to create a culture of teamwork where people really feel invested in the case, and invested in figuring out the best presentation so that there is a sense of camaraderie.
LD: And I imagine having the flat fee structure probably promotes camaraderie, right? The attorneys aren’t competing against each other for billed hours.
BS: Exactly. We literally do not track our hours. I think it takes away competition that comes up with billable hours. It also just allows us to have a lot of team-oriented strategies.
I also think that billable hours can create a lot of tension with clients. But with us, once they agree on the fee, as long as we are getting the work done and doing it well, the client is not worried about how we are spending our time. And so, we are allowed to have that culture of integrating everyone into the whole case, brainstorming and coming together and helping train people.
I think it helps lead to our success because the full team understands everything that is happening in the case, and therefore is more invested in being creative and coming up with the right strategy.
LD: I imagine it would be such a great space for young associates, then, too, because they are getting a higher level of experience. It sounds like that would create a very collaborative, less hierarchical environment.
BS: That is exactly right. You took the words out of my mouth: We are not hierarchical. I am interacting with every associate on every one of my teams on a regular basis. At big firms, the junior associates in particular, they are so far down that ladder, they feel very siloed. They only know their little part of the case; they don’t understand how it fits into the big picture. And they are never interacting, or rarely interacting, with the partners, so they are not learning as much because they are not hearing from him or her to understand his or her thinking or strategy. We’ve been able to break down those barriers and it’s been fantastic. I am so proud of what we’ve achieved in just five and a half years.