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Trial and Appellate Attorneys

Our Work

missionWe are trial and appellate attorneys. We litigate cases, conduct trials, conduct appeals, and provide strategic advice in our core practice areas, which are antitrust lawbusiness litigationreal estate litigationsecurities fraudtrademark offensesfalse advertisinginsurance law, and white-collar crime.

We thoroughly understand our work. To perform it properly, we always complete an essential analysis before filing or responding to a complaint. At this stage of our work we carefully examine our client’s situation, seeking to gain a careful understanding of the matter so far as possible. This initial review often entails a substantial investigation. We then consider how the controlling laws likely apply to the client’s matter. If appropriate, we prepare our client’s claims and bring them, or advise our client as to why we think the contemplated claims should not be litigated. If our client has been sued, we conduct the same kind of analysis before presenting the client’s defense and asserting any claims against the other side or third-parties. Then we proceed to court, prepared to try our client’s case to a judge or jury.

If we appear in a case, it means that we are prepared to try it to conclusion and to bring an appellate challenge if appropriate. Even so, wherever possible we always seek to reach a fair settlement because we have learned from experience that full-fledged trials and appeals entail costs that often are reasonable only when the underlying controversy is substantial or concerns how our client can conduct its business in the future. Sometimes we have gone to trial on behalf of clients who were resolved to vindicate a principle. Often we have counseled our clients to accept a compromise resolution for the sake of efficiency, certainty, and the avoidance of undue litigation expense. But if we appear in a matter, it means that if necessary we can try it to a jury or a judge. Indeed, we relish the prospect of doing so when appropriate, since nothing is more challenging or engaging in the practice of law than presenting a case at trial.

We have learned from experience that it is sometimes not possible to obtain a meaningful settlement from a stubborn or hostile adversary until we have established that we are competently developing the case for trial and will indeed proceed to trial unless we can reach a fair settlement. This approach never entails futile chest-beating exhibitions, but only a serious, methodical, and intelligent development of our client’s position and evidence. By doing this work, we not only prepare ourselves for trial, but also lay a foundation for a successful settlement, since our adversaries can see for themselves that if they do not settle with us they will soon enough risk a worse outcome at trial.

In our experience, cases that proceed to trial usually fall within one of the following categories: (1) Intractable disputes between stubborn adversaries or where one or both sides seek to vindicate important principles; (2) trials and appeals over unsettled, significant questions of law whose clarification allows our clients to make appropriate long-term plans; and (3) trials of very strong claims or defenses, where the party with the strong position can foreseeably obtain a better result at trial than by settlement. Most other cases can usually be settled at some point before or even during trial.

Even so, we can negotiate successful settlements only if we are genuinely prepared to try the matter in court. Otherwise, our adversaries will grasp that they can wear us down or simply proceed to trial themselves because we will not oppose them successfully if they do so. This circumstance gives rise to the so-called litigator’s paradox: if a trial attorney is really prepared to try his case, he will often be able to negotiate a successful settlement agreement before trial; but if he is not prepared to try his case, he will obtain only an inferior settlement or actually find himself flailing at trial because his adversary will have grasped that he cannot try his case — which can be a dispositive failing in any litigation.

We are passionate about our work. Our cases are fascinating and have enormous importance to our clients and sometimes to society as a whole. Each case presents a unique challenge and can give rise to high drama, especially at trial, and its outcome often has monumental importance to our client’s work or plans. We always strive to offer superior advocacy and a superior approach to each of our matters so as to help our clients resolve challenging controversies or obtain meaningful redress for wrongful practices that have caused them significant harm.

Our Ability to Accept Large Cases

Several times we have been opposed by teams of highly capable attorneys fielded by leading global law firms. In any such matter, or whenever the need arises, we can quickly assemble our own team of first-rate professionals who have worked with us successfully on prior occasion, and we can also procure essential litigation services from reliable outside service-providers, so that we are never outmatched or overwhelmed even by the largest or most pro-active global firm. We think that our work in these matters has reflected favorably on us, and we have obtained successful results for our clients in exceedingly difficult, sprawling, and complex antitrust controversies. All the while, we are able to maintain our reasonable billing arrangements because of the manner in which our practice is structured and our lean fixed costs.

MR. MARKHAM’S ARTICLES ON ANTITRUST LAW

AN OVERVIEW OF ANTITRUST LAW (By William Markham, © 2000)

“Antitrust law is the law of competition and is perhaps the least understood law of all. This article provides an overview and explanation of the essential principles of antitrust law.”
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ANTITRUST EXEMPTIONS AND IMMUNITIES (By William Markham, © 2022)

“Over the years, Congress and the federal courts have established various immunities from federal antitrust law, removing from its reach specified commercial activities and even entire lines of commerce.”
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HOW THE CONSUMER-WELFARE STANDARD TRANSFORMED CLASSICAL ANTITRUST LAW (William Markham, © 2021)

“Since the late 1970s, antitrust law in the United States has been transformed out of recognition and rendered largely toothless by consumer-welfare jurisprudence….,”
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ANTITRUST AND FREE MARKETS (BY William Markham, © 2022)

“Some critics of antitrust law treat it as mere governmental overreach and an unwelcome infringement upon the ordinary operations of our free markets. (….) That criticism betrays a fundamental misunderstanding of the very term ‘free markets,’ which refers to markets that are free of any undue restraint, whether public or private.”
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UNLAWFUL PRICE DISCRIMINATION (By William Markham, © 2013)

“In this article I take up the obscure, problematic doctrine of illegal price discrimination, which was codified by the Robinson-Patman Act during the Great Depression, and which the modern, conservative Supreme Court has severely limited.”
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WHY ANTITRUST LAWS MATTER (By William Markham, © 2006)

“The antitrust laws are supposed to promote and protect competition, or, if you will, competitive processes in distinct ‘lines of commerce’ or ‘relevant markets.’ This alone is their proper purpose.

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MR. MARKHAM’S ARTICLES ON TRIAL PROCEDURE AND CONTRACT LAW

MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL (By William Markham, 2011)

“I try in this article simply to set forth a list of simple rules to explain the key points of the law of evidence. I also offer several pointers on organizing evidence in order to present it competently at trial.”
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ANATOMY OF A LAWSUIT (By William Markham, © 2007)

“This article is written for non-lawyers, young litigators, and non-litigator attorneys who wish to understand how a lawsuit works in practice from start to finish.”
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AN OVERVIEW OF CONTRACT LAW (By William Markham, 2002)

“Contract law lies at the heart of our system of laws and serves as the foundation of our entire society. This is not an exaggeration. (….) Our society depends upon free exchange in the marketplace at every level.
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LAW OFFICES OF WILLIAM MARKHAM, P.C.
402 West Broadway, Suite 400
San Diego, CA 92101
Tel. (619) 221-4400
inquiries@markhamlawfirm.com

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