We've all been there and it doesn't feel good.
A former associate suing Kirkland & Ellis for sex discrimination has given other lawyers nightmares after she left notes identifying weaknesses of her case in the middle of her claim.
Zoya Kovalenko, who is representing herself, worked as an IP litigator in the US firm's San Francisco office for 11 months until she was fired during her first review in September 2021, where her supervising partner told her she had "not contributed to her matters at either the substantive or commitment level that is expected of an associate".
Kovalenko sued, alleging that the IP partners gave male associates preferential treatment to her, and were taking revenge after she complained about their conduct internally a few months before she was sacked.
But she's given her ex-employer a couple of easy wins after forgetting to delete two notes querying the strength of her arguments.
One note reads, "delete? Not sure I want it because the analogy seems weak" in a section that sets out the roles of the Kirkland partners she has sued.
The second note asks: "cut?? Will this undercut the 'Kirkland-should-have-let-me-work-with-other-partners' theme, e.g., by implying these partners are so important that they have final say in Kirkland matters?"
The slip provided lawyers with "nightmare fuel" after it was circulated on Twitter. "Seriously, I want to throw up", said one lawyer. "I'm currently throwing up for both of us", replied another individual.
"That's what happens when you file brief_final_v2_usethis.pdf instead of brief_final_v2_usethis2.pdf", tutted one lawyer, as others posted, "I had a stroke reading this. There is no hole deep enough", and "I need to take the rest of the day off."
One lawyer suggested it "Also sort of undermines any argument that the pro se drafter wasn’t fired for poor performance", a point which Orrick, Kirkland's lawyers, will pick up in their response if they're feeling sadistic.
Kovalenko has claimed that whenever partners got wind of her holiday plans they assigned her extra work either right beforehand or during her vacations. She said she was "not opposed to working a fair amount when traveling and on holidays", except the partners "did not show a similar disregard for male associates’ travel plans". According to Kovalenko, partners in the IP team went out of their way to ensure the men weren't disturbed, which included dumping their work on her. She said she was sacked despite her "willingness to always prioritize work over her personal life", which seems to be the base requirement in a US firm.
Kovalenko also alleged that when she joined a trial team at late notice, Kirkland IP partner Leslie Schmidt gestured to her in front of an expert witness in a derogatory manner and commented, "Now I'm stuck with this", then made her order them all food. "No male associate had ever been asked or had to order food for any member of the trial team, including themselves", said Kovalenko, adding that the partner "clearly" felt administrative tasks were "best left to females and are too ministerial for a male associate to handle".
According to her claim, she and another female associate were "left behind" after the trial to fly home by themselves on a commercial economy flight, while the male associate flew back with the male partners on an "all-boys" chartered flight.
A spokesperson for the firm said, "Kirkland & Ellis is committed to ensuring its workplace is one where every employee is treated with professionalism and respect".
"Ms. Kovalenko was employed by the firm for less than a year during which time her performance and the quality of her work product was found to be below the standards that the firm expects of its associates."
The spokesperson said the allegations were investigated and found to be "entirely without merit", and that, "To the contrary, the attorneys named as defendants and unfairly targeted are known for their integrity and commitment to mentorship".
The firm said it "will vigorously defend itself and the attorneys named as defendants against these baseless allegations".
Kovalenko did not respond to a request for comment, but can seek solace in RollOnFriday's coverage of lawyers most shameful typos and their most embarrassing errors.
"You have no evidence that I was rubbish at drafting!"
Tbf to her, a lot of what she describes is recognisable - it’s the women who get asked to make the tea, arrange the food and go over the meticulous boring “details”, while the men grandstand about “strategy” (not all men, not all firms but enough for this to be familiar ). I’ve also had worked dumped on me by the male partner a week before going on holiday, with the expectation that I would get it all done before I went away (but he couldn’t?!). Plus had the partner schedule 8am meetings when I had just come back from maternity leave, which never happened to the male associates when they were back from paternity leave. It’s all low level insidious stuff - hard to complain about the individual instances without seeming petty, but collectively, so wearing and designed to grind women down and prevent their progression.
Isn’t this taking unfair advantage of a litigant in person? I’d be careful if I was K&E about making too much of this. SRA is hot on this issue right now.
@14:36 Yeah I am pretty sure that even the SRA is not so delusional to think it has a genuine say on what happens in proceedings taking place in the US.
"She said she was "not opposed to working a fair amount when traveling and on holidays"" - sorry, what? Why are people putting up with these practices? Holiday is personal time, not the employer's.
This won’t have any probative value at all. It’s as relevant as her telling everyone that she had a brilliant case.
And if this had happened in England we would have had a quiet word with the sender and deleted.
And I wouldn’t resort to such tactics if I had a good case.
There's a good Reuters article summarising (a) the case; and (b) the many mis-steps the claimant has made, here:
Kovalenko in her complaint (which now has restricted access on PACER, although archived copies are available online) takes what strikes me as a scorched-earth approach. For example, she names names -- not just of the partners she alleged discriminated against her, but of the four male associates she uses as comparators (as opposed to identifying them, say, as associates A, B, C and D). She then details their shortcomings in a bid to show that she was a better lawyer, pointing to examples of how one or another had “subpar performance on at least two assignments" or “failed to adequately address claim construction” or “required substantial guidance and supervision."
Much of Kovalenko’s complaint focuses on her workload, which she alleges was “onerous and excessive” compared with her male counterparts. However, she only specified that she billed “well over 200 hours” in both June and July 2021. Which is a lot, but for Big Law?
One thing that differentiates her complaint from others that have succeeded is the duration of her employment. She says that when factoring in time off at the beginning of her tenure for onboarding and training, and to study for the California bar, and seven weeks at the end when she says she was frozen out of new assignments, she really only worked at Kirkland for "a mere seven months."
@21st @14.09 - also tbf, the weak case is also very recognisable. Just because it might have happened doesn't mean it did. How do you know the things you describe are meant to 'wear women down and prevent their progress in the profession'? It sound like a lot of what happens at work to men as well.
@9.28 because it’s exactly my experience too and that of many, many other women I know, not just in law but generally. How do I know it’s intended to wear women down and stop them progressing? How does anyone know. It could just be the men in question being khunts, couldn’t it, but does it really matter if the net effect is the same? Yes some of it will be familiar to men, but the “what about the men” fails here because no, men don’t get tasked with the tea making, food ordering and are not expected to do the grunt work in the way women are. They also don’t suffer from discrimination in relation to pregnancy and maternity and it’s disingenuous to suggest otherwise. I’ve never met a man yet whose career was harmed by having children. In fact, it’s often benefitted them, by conferring the impression of stability and maturity in a way it doesn’t do for women.
But hey, as in all these case of discrimination, if you are determined not to see and accept the experiences of others, then there is nothing I can say or do to convince you.
I am reminded of the large trans-Atlantic firm (for whom I used to work) having to defend a GBP £x0,000,000 claim - with regard to a former partner who'd "gone rogue" with "their" client to defraud investors.
As part of their disclosure response, they decide to take the litigation tactic of disclosing three tons (literally) of paper.
Sadly, in the first box they left the internal report (thirty plus (30+) pages) detailing where their case was weak (and setting out their delaying etc. tactics).
We spent days debating whether it was legally privileged etc. - but decided to give it to the Sunday Times.
They settled fairly soon (and fully) thereafter . . .
22nd @ 14.00 - so you're saying you don't know its to wear women down and stop them progressing. What evidence do you have that "men don’t get tasked with the tea making, food ordering and are not expected to do the grunt work in the way women are"? And are you saying that in all of your and the many, many women you knows' experience, men have been the culprit each time? In relation to pregnancy - its not uncommon for women to marry rich, have children and leave the workforce. That's a choice, not discrimination. And as for maternity rules not being discriminatory, I mean come on! Look at the period of maternity leave compared to what fathers get.
It will be difficult to convince anyone of wide-ranging discrimination when looking at it in a balanced way suggests that a lot of it doesn't exist, and in cases where it does, women are also the culprit.
"According to her claim, she and another female associate were "left behind" after the trial to fly home by themselves on a commercial economy flight, while the male associate flew back with the male partners on an "all-boys" chartered flight."
1. The travesty of having to fly commercial.
2. Does the client know they were billed for a charter flight?
@Frequent flyer - and did it actually happen?
For edification purposes, the internal comments showing the alleged “weaknesses” of this plaintiff’s case pertain only to a specific non-substantive issue and do NOT have any bearing on the merits of the case—i.e., whether this person was subject to discrimination and retaliation. Just sharing in case anyone cares about understanding the actual facts.