In this article for The Am Law Litigation Daily, partner Jess Krannich describes overcoming “less than ideal” circumstances before securing a complete defense win for Sotheby’s International Realty in a breach of contract dispute.
File this under “less than ideal.”
Last month, as Jess Krannich of Kirkland & Ellis was driving from his downtown office in Salt Lake City to a hearing he was set to handle for client Sotheby’s International Realty, his tire blew out. During a time when most litigators want to be polishing the finer points of their argument outline, or at least taking some deep breaths, Krannich was dealing with the logistics of completing his journey to the courtroom. Semis whizzed by the onramp to Interstate 80 right around the start of the climb up the canyon to the glitzy mountain town Park City where the hearing was set to take place.
When I spoke with Krannich yesterday about the whole ordeal, he detailed how he reached out to his assistant to alert the court and emailed his client who was set to be in the courtroom. He also attempted to coordinate a pickup from the associate working on the case, Rebecca Nelson, who was making the drive separately. He said his location was so tricky to navigate that Nelson got a bit turned around trying to find him.
By the time the Kirkland lawyers connected, the court’s clerk had passed along an understanding message encouraging them to be safe. Krannich told me that when Nelson finally got to him he even made a joke that “the worst thing that could happen hopefully has already happened” for the day.
Maybe not.
Krannich continued to attempt to keep the mood light as he made his way into the courtroom, cracking another joke with security about the trial involving Gwyneth Paltrow that wrapped up recently in the same Park City courthouse. But once he got inside the courtroom, things took another confounding turn: Krannich couldn’t get the PowerPoint presentation he intended to make—including multiple slides with multi-step, carefully-crafted animations dissecting the contract underlying the dispute—to pull up on the court’s IT system.
Already a half-hour behind schedule for the two-hour argument slot, the court gave Krannich the options of bringing in additional equipment or calling in the court’s IT consultant. But having already delayed things that long, Krannich made the snap decision to do things “the old-fashioned way.” He handed out paper copies of the slides his assistant had made beforehand to opposing counsel and the court. Then he got moving on his arguments for dismissing the claims luxury Park City real estate developer Promontory Development brought against Sotheby’s.
Promontory alleged Sotheby’s breached an exclusivity provision in the parties’ contract by becoming the agent for a separate development in Coalville, Utah. Krannich, however, argued that Sotheby’s had been upfront with Promontory about the Coalville property and that the developer’s remedy for any alleged breach of their agreement was to end the arrangement, not seek damages. Krannich also pushed back against the developer’s request for 25% of Sotheby’s 2021 commissions from sales at Promontory—or $700,000—arguing those funds earmarked for marketing the properties were only due if the parties’ contract was renewed. The renewal was a no-go after Promontory announced it would work exclusively with a Berkshire Hathaway affiliate in 2022.
After a little more than two hours of argument, Judge Rich Mrazik of Utah’s Third District Court handed Sotheby’s a complete defense win, dismissing Promontory’s claims with prejudice.
Krannich told me yesterday he, like lots of litigators, wants to be as “dialed in” as he can be for big arguments. This experience, he said, was “as non-conducive to being in the kind of headspace you want to be in for a high-stakes oral argument as I’ve ever had.”
“I think as a breed litigators tend to want to control everything that we can control,” Krannich said. “We put in all this time to get as ready as we can possibly be. But then, we have a tendency to want everything to go perfectly.”
“Sometimes you just got to be willing to let those things go and step up and let it rip and trust in the work that you put in,” he added.
“I think what has been a real progression in my career is the ability to trust the preparation that we put in … know that even if things that are outside of our control go wrong, that you can fall back on what you put into it and know that you can step up and deliver,” he said. “But I’ll tell you: this day … it really kind of puts that mindset to the test, right?”
