Steven Andersen was a litigator and managing partner in Boise with Holland & Hart, one of the Mountain West firm’s more than 500 lawyers.
Thomas Banducci was a partner in Banducci Woodard Schwartzman, a small firm Downtown. Not long before, he had been a managing partner at Stoel Rives, a firm with nearly 400 lawyers.
Andersen worked on high-profile cases, such as a lawsuit by more than 100 Idaho farmers against DuPont for negligence involving an herbicide that damaged crops across southern Idaho.
Banducci’s firm landed what it called a “David-and-Goliath” victory in 2012: a $52 million judgment against Saint Alphonsus Health System over a broken business partnership involving magnetic resonance imaging, or MRIs. The case pitted the small Boise firm against Jones Day, one of the world’s largest.
Andersen and Banducci wanted to try something new. They decided to go into business together, taking along colleagues from their prior firms. They opened Andersen Banducci with seven other lawyers in January 2013.
More lawyers have joined the roster since. The business is doing “phenomenally well ... really successful and a lot of fun,” Andersen says.
It represents a Canadian agricultural chemical company, Agrium, handling all of its litigation around the U.S. Some of its clients and cases have been in the national spotlight, such as Boise State University’s lawsuit stemming from its decision not to join the former Big East conference, and a case against Idaho potato growers that alleged price-fixing. It also represented the title company for Tamarack Resort in a breach-of-title insurance lawsuit brought by Credit Suisse.
It hasn’t all been gold stars. The Idaho Supreme Court in August allowed a 2013 lawsuit to proceed in which 16 men allege that leaders of The Church of Jesus Christ of Latter-day Saints were aware that Boy Scout volunteers who sexually abused them were dangerous. Andersen Banducci represents the church. The firm also represents minor victims of sexual abuse in settings such as fast-food restaurant play areas.
Andersen speaks passionately about the value of those kinds of disputes playing out in court. Trials, however, are expensive — a huge motivator for parties to settle out of court. Andersen does not disclose his firm’s prices, but he says they are one-third to one-half less than is typical for big-firm attorneys with the same level of experience to make litigation more affordable. According to the National Law Journal, the average hourly rate for a partner at Holland & Hart is $295 to $725. At Stoel Rives, it is $320 to $690. At Jones Day, it is $445 to $975.
“We wanted to do something differently and have the freedom and flexibility to do it without the strictures of big-firm policies and big-firm financial models,” he says. “If you’re (part of) a big firm, you have to bill a certain number of hours and at a certain rate.”
I have to look at things like, “Do we buy this new coffee machine?” You’re seeing the whole business from top to bottom, like hiring and marketing. Then I have to do the full-time legal practice on top of it.
Steven Andersen, Andersen Banducci, on co-running a law firm
Q: Does your firm plan to grow in size?
A: I think that we will probably grow over the next few years. We have so much work that we will probably have to grow. But we’ll try to maintain a smaller-firm approach to legal problems. Because the smaller, more individualized approach is much better than a homogenized, big-firm approach in most situations.
All of us conceived the idea of forming a firm that has big-firm backgrounds and experience but can be more fleet, can deliver certain legal services for less. And is willing to do both corporate defense or business defense as well as plaintiffs’ work for certain plaintiffs.
We thought, hey, there’s a niche for us.
Big firms are monopolizing on their services and trying to corner the market by growing bigger. We won’t do that; we think we’re in competition with them.
Steven Andersen, Andersen Banducci
Q: What’s so bad about a big firm?
A: In some ways, they are good for clients because they have a lot of resources. (But) big firms are big because it’s more protective of, and advantageous to, the lawyers than the clients. No one lawyer has to take any risk. No one lawyer has to make decisions.
And I think clients experience that, too, because they get lost in the shuffle. They complain about their bills. It’s the lawyer you hire plus the 10 lawyers he or she puts on the case to work on it.
We try to avoid that overstaffing. The lawyer you hire is the lawyer who represents you.
Q: What is high-stakes litigation?
A: Where there’s a lot of money or an issue of importance to the company, or an issue of importance to the industry. So much litigation is really pretty routine — “You ran over my foot, and I want $10,000,” that sort of thing — but high-stakes litigation is above or beyond.
The damages in a case like [the potato price-fixing lawsuit], if successful, could destroy those companies.
There are lots of “litigators” out there but few trial lawyers who have actually tried cases. Cases that are really complicated and high stakes involve a certain degree of skill and experience.
The main specialization we’re looking for is really the ability to take a matter to court. Ultimately, if it can’t be resolved some other way, you’ve got to be able to go there and prevail.
Q: Settlements are so common, though. Why is it important to go to court?
A: There are lots of articles written about this. Look up “the disappearing trial.” It’s constantly talked about by judges that the number of cases that actually go to trial is diminishing. The reasons are, one, the expense of it, two, the risk of it. An OK settlement now is better than potential exposure later.
But I think people have no confidence in the process. The juries are seen as unpredictable. The lawyers charge more for taking it to trial. And (the plaintiffs) have to go to court instead of doing their normal business.
We think you can limit those intangibles and unknowns a great deal with jury research and quality evaluations by someone who’s experienced enough and seen it enough to know what will work.
Too many (cases taken to trial) will break the system, so settlement is important. But what you see more and more is (settlements in) the ones that are important — the ones that should be tried and there is a need for an arbiter, a judge and jury to decide the outcome for you.
Settle the bad cases which don’t really belong (in court) — the merits are in question, the stakes aren’t high enough, the parties aren’t committed enough to their positions. But try the good ones.
Steven Andersen, Andersen Banducci
Q: Lawsuits playing out in court also are important for precedent, right?
A: Many, many, many of our concepts that we hold dear — (such as) product safety and what you have to do to make your products safe — were born out of litigation. Settlements are confidential. The issues that brought the parties to a conflict impasse never get aired.
The farmers stood up to DuPont, and I would like to think that was an important milestone for companies to label their products and disperse them in correct applications.
The trial and a judge’s rulings are really important, because they keep society moving forward. They define our values and our approaches to conflict.