James A. Strain
What interested you about going into your particular area of law?
When I first returned to the practice following my clerkships (at the Seventh Circuit and the United States Supreme Court), I was splitting my time between litigation (law and motion practice) and corporate. It was in the heyday of hostile takeovers, especially in the state of Indiana, and both skill sets were handy in the context of defending or prosecuting a takeover attempt. Another former Supreme Court law clerk became available and wanted to do law and motion practice. It was easy to give to him all of the law and motion practice work that I was doing and to concentrate mostly on the corporate side of the practice, which I have done ever since.
What would you say is the most rewarding aspect of practicing in your area of law?
The most enjoyable aspects of what I do revolve around figuring out solutions to potentially “bet the company” kinds of problems and counseling clients through those problems.
What has been the key to your success?
The biggest key, I suspect, has been that more often than not, my solutions to “bet the company” problems have been workable solutions. In one instance, a client did not follow my advice and instead followed the more conventional advice of Chicago counsel. His company went into bankruptcy and had to be sold. Only when it was too late for me to be able to help did he come back and admit that he should have followed my recommendations.
What is one example of a case/matter you are particularly proud of?
One of my biggest personal successes came in the defense of the Indiana Control Shares Acquisition Statute in front of the United States Supreme Court. I had been one of the two authors of the statute who had figured out how it should pass constitutional muster (when all other attempts had failed to that time). Before the law was even effective, it was challenged in federal district court in the Northern District of Illinois, and that court held it unconstitutional. Thereafter, the Seventh Circuit affirmed. Neither I nor my then law firm was in charge of either of those actions. I was then authorized to appeal the matter to the United States Supreme Court (back when such appeals were still possible). The Court noted probable jurisdiction and I argued the case on behalf of the client. About six weeks later, the Court reversed the Seventh Circuit and held, 6-3, that the statute was constitutional. See, CTS Corp. v. Dynamics Corporation of America, 481 U.S. 69 (1987). In one sense, it was living the lawyer’s dream – believing in an approach to constitutional legislation, helping to implement it, and then successfully defending it in front of the Court. What was important about the case, and what lives on, is that it placed in the legal firmament that state corporate law in matters of corporate governance is sacrosanct in the absence of (i) a direct burden on interstate commerce, (ii) discrimination against interstate commerce or (iii) a direct usurpation of the state’s authority under the Supremacy Clause by the federal government.
How has the legal industry in your field changed in the last 30 years?
Some of the biggest changes in my practice area have occurred because of the advent of institutional investors replacing the moms and pops who once owned America’s corporations. In most publicly-held U.S. corporations today, easily 90% of the stock that is in float is owned by institutional investors that may, in turn, be owned by moms and pops. Those investors view their jobs as obtaining the most return on their investments, not necessarily what is best for the corporations, the communities in which they are located or even the moms and pops who own their shares. Often they turn over the decision making authority with respect to the voting of shares to another institution, like Institutional Shareholder Services (“ISS”). ISS and others like it publish and make recommendations on voting based on their own particular view of an ideal series of standards for corporate governance. And boards of directors are afraid of receiving a “withhold vote” recommendation from ISS or one of the others with respect to their elections or reelections. As a consequence, directors are more focused on the immediate return than on long-term return and on what will get them re-elected. This particular development has meant that lawyers must manage to that expectation rather than what is in the best interests of the corporation – the statutory mandate in most states for director conduct.
What does being included in Best Lawyers for 30 years mean to you?
It has been an honor and a source of pride for me to have been included in Best Lawyers for more than 30 years.
What is one piece of advice you would give to new attorneys?
Ours is a service profession. Serve your clients and attempt to solve their problems as effectively and as efficiently as possible, while always staying within the bounds of ethics and the law.
What is the biggest obstacle you see for your practice area in the next 30 years?
It seems to me that so long as the focus of the proxy advisory firms and the market is on short-term gains, as opposed to long-term rewards, our businesses, our economy and our country, as well as the practice areas that include corporate governance, mergers and acquisitions and corporate law, are going to have a long, uphill battle.
Is there any other advice you would give your younger legal colleagues?
Yes! Get involved in your communities, whether it is with youth, cultural and artistic pursuits, sports - whatever. And engage in creative works, even if you do not believe you are in the slightest creative. Do something outside of the practice of law. Kurt Vonnegut, Jr., once advised a class of high school seniors to do something creative every day – write a poem, paint a picture, play an instrument – something, anything. Do not do it to share. Do not do it for public appreciation. Do it for yourself. My belief is that the more well-rounded a lawyer is, the better he or she will be able to relate to clients and to solve their problems.