Advocacy Is… A Matter of Perspective
Koji Fukumura (LAW ‘93) is a study in balance: corporate lawyer and occasional surfer, zealous advocate and respectful adversary, East Coast crisp and West Coast cool. “He’s a good balance between a laid-back Hawaiian and a street fighter from Philly,” says Brian Robbins, co-founder and managing partner of Robbins Arroyo, in a recent Super Lawyers article about his occasional adversary. “And he always shows good judgment on how to balance those two sides.”
Fukumura is a partner at Cooley LLP, Chair of the Firm’s Securities Litigation Practice Group, and a member of its Management Committee. He is resident in the San Diego office and part-time in the Colorado office. “Seventy percent of what I do is shareholder litigation. This includes shareholder litigation where plaintiffs are asserting securities fraud under the federal securities law or are asserting breach of fiduciary duty in derivative suits or direct class actions,” he explains. This also includes M&A litigation – “I defend deals.” The rest is largely defending his clients in government investigations, where either the Securities and Exchange Commission or the U.S. Department of Justice is pursuing claims similar to those raised in his shareholder cases.
Fukumura chose securities litigation for two reasons: access and potency. “Early on in my career,” he says, “I realized that securities litigation is a seemingly narrow field but one that has a couple of great advantages. First, when you represent a client in securities litigation, you are dealing with executives in the C-Suite of a public company as well as that company’s Board of Directors. It gives you access, right away, to the highest levels of a public company. Second, it is a field that is always going to have potency in the sense that public companies, their executives and their directors are always going to be targets of plaintiff’s firms.” It’s that gift for strategic perspective that has made him invaluable to his clients, who look to him for counsel when events don’t go their way.
Much of Fukumura’s practice is event-driven. “Let’s say I represent a biotech company whose lead compound failed its phase II trial,” he begins. “The success or failure of that clinical trial will likely have a profound impact on that company’s stock price. Accordingly, I routinely counsel clients during the pendency of the clinical trial about the various actions the company’s shareholders or the government regulators may pursue in reaction to the trial’s failure and the resultant large, unfavorable price movement. Or, a software company might restate its financial statements – they discover, for example, that the way they have been recognizing revenue for the past five quarters is incorrect. Like the failure of a clinical trial example, that revelation could have a dramatic, negative effect on the company’s stock price. What I do is I look at the total landscape of what might happen as a result of the occurrence of that event and counsel (or defend) my clients.”
In fact, it was looking at the landscape, or perhaps the horizon, that led Fukumura from an early career in life sciences to one in law. The son of a doctor, Fukumura graduated from the University of Colorado in 1989 with a degree in molecular biology and began work as a medical researcher. But then came managed care, and with it concern among physicians about its impact on their ability to practice. “Doctors were saying to me, ‘We’re going to have to see two hundred patients a day in order to make a living,’ and, ‘It’s just not the same as it was when your dad was a doctor, when he could see his twenty patients a day and really develop long-standing relationships with families,” Fukumura recalls. “I viewed the practice of medicine as changing, and so I applied to a bunch of law schools instead. I had choices all across the country, but the trial advocacy program made Temple very attractive to me.”
Advocacy turned out to be something at which Fukumura excelled – not only in the courtroom, but in conference rooms and deposition rooms as well. Even as a young lawyer, his perspective, coupled with a tenacious commitment to preparation, made him a formidable advocate for his clients. One particular early securities case stands out. After spending the first day of a deposition plagued with speaking objections by a more experienced lawyer, Fukumura regained the upper hand by first shutting down the bad behavior and then presenting an original defense based on a novel reading of one section of the Securities Exchange Act of 1934, which he had read from end to end off the clock. His preparation and big-picture perspective paid off, resulting not just in a favorable outcome for his client but also an understanding of advocacy that has informed his practice ever since.
“Advocacy means that I am ethically and professionally advancing the position of my client – to win,” Fukumura begins. “It’s preparation, preparation, preparation…. Young lawyers need to recognize over and over and over that we have to be maximally prepared whenever we’re standing up before a judge,” he says. “So that’s first. Then, there’s another aspect of professionalism, which is civility. I have a curious practice in that I see many of my opponents all the time in cases which creates, in itself, a sense of civility. We all know that we’re going to be seeing each other again in the next case or in two cases from now. So I really try to separate how I am as a person from the fact that we’re opponents and try my best to ensure that the civility part of our profession is something that I carry through personally.”
Both preparation and civility require – and support – the strategic perspective that has made Fukumura a trusted advocate for so many clients. Understanding the big picture, in the case and in practice, is essential not just to winning in court but to leading in the profession. Fukumura, who will chair the Litigation Section of the American Bar Association beginning in August 2017, does his best to persuade young lawyers of the wisdom to be gained by asking bigger questions and thinking outside of the box. It’s that wisdom, in tandem with experience, that can help them learn what Fukumura already knows: that success, in practice and in life, often depends on your perspective.