Steve Hirsch helps clients reframe and develop their cases for success in the federal and state appellate courts. That process can begin long before any appeal is filed, with dispositive trial-court motions and significant motions in limine, or during the post-trial motion phase, when issues are being teed up for appeal.
Mr. Hirsch’s core practice beliefs are that writing matters, that briefs should tell a compelling story, and that framing the issue is critical to success on appeal. He has been recognized by legal-writing expert Bryan Garner as one of the best brief writers in the United States, and has been chosen by the U.S. Court of Appeals for the Ninth Circuit to teach appellate brief-writing and oral argument.
Clients represented by Mr. Hirsch have included American Honda, AT&T Wireless Services, Electronic Arts, Genentech, Google, Hummer Winblad, Intel, Qwest, and many prominent law firms and individuals in civil and criminal cases, as well as smaller businesses, governmental entities, crime victims, immigrants, public-interest organizations seeking amicus assistance, and labor unions.
Cases of Note
Robin Antonick v. Electronic Arts Inc.: Robin Antonick, programmer of the John Madden Football video game for the Apple II that was released in 1988, alleged that EA owed him royalties on sales of all Madden Football video games over the last twenty-two years. Antonick claimed that all Madden games since 1990 are derivative works of the game he programmed, and he was therefore owed royalties under a 1986 contract with EA. On behalf of EA, we contended that none of Antonick’s source code, which was written for a more primitive platform and was outdated by the time it was released, was ever used in any subsequent Madden game. Although the jury found in favor of Antonik, U.S. District Judge Charles Breyer later entered judgment for EA, reversing the award and strongly discouraging similar suits based on additional versions of the game. Judge Breyer's ruling was affirmed on appeal.
Ziptronix v. Taiwan Semiconductor Manufacturing Company: We won summary judgment of non-infringement for Taiwan Semiconductor Manufacturing Company, Ltd. and its subsidiary TSMC, North America in a long-running patent lawsuit brought by North Carolina semiconductor company, Ziptronix, Inc. Ziptronix had asserted nine patents and more than 500 patent claims directed to TSMC’s manufacturing of semiconductors for use in backside-illumination image sensors used predominantly in smartphone cameras. On behalf of TSMC, we defeated Ziptronix’s claims by arguing that the territorial limits of U.S. patent law prohibited reaching TSMC’s business transactions and manufacturing operations in Taiwan.
Heller Ehrman LLP v. Davis, Wright Tremaine and Foley & Lardner: We won summary judgment for Davis, Wright Tremaine and Foley & Lardner, which were targeted by the Heller Ehrman bankruptcy estate. Law-firm bankruptcy trustees had argued unfinished hourly legal work is an asset that belongs to the failed firm, citing a 1984 California that involved the breakup of the Jewel, Boxer & Elkind firm. However, a federal judge rejected the 'Jewel' doctrine, and ruled Heller Ehrman cannot claim profits earned from hourly rate matters that its former partners brought with them to new law firms. The decision will likely influence future litigation over failed law firms.
Suffolk Technologies LLC v. AOL Inc. and Google Inc.: A Virginia federal judge granted our motion for summary judgment on all but one of Suffolk’s patent infringement claims, and issued a Daubert ruling striking the plaintiff’s expert damages opinion in its entirety. Soon after, Suffolk stipulated to invalidity on the last remaining claim. Suffolk had claimed that Google’s Adsense advertising placement technology, which selectively places paid advertisements for a company’s product or service on the Web page of another, used a similar protocol to the one under patent with Suffolk.
Oracle America, Inc. v. Google Inc.: We represented Google in what Oracle claimed to be a multi-billion dollar patent and copyright war concerning the use of the Java programming language in Google’s Android platform. When Oracle bought Sun Microsystems in January 2010, it acquired Sun’s rights to Java. In August of that year, Oracle sued Google, claiming its Android mobile technology infringed Oracle patents and copyrights. We defended Google against all the patent and copyright claims, and also argued that the damage estimates were wildly inflated. Following repeated rounds of motions and briefing, the judge dismissed the bulk of Oracle’s copyright claims, and at trial the jury rendered a unanimous verdict rejecting all claims of patent infringement. Although the jury decided that Google infringed an Oracle copyright on nine out of millions of lines of source code, the case was a sweeping victory for Google, with zero damages. After an appeal by Oracle, the case returned to district court for a trial on fair use. After a two-week trial, the federal jury unanimously found that Google’s use of Oracle’s Java programming language in the Android operating system was a fair use, thereby rejecting Oracle’s claims of infringement in their entirety.
City and County of San Francisco v. Music Concourse Community Partnership: We successfully defended the Music Concourse Community Partnership from two consolidated actions. The actions sought to halt the creation of a $50 million underground parking facility in San Francisco's Golden Gate Park. After two bench trials, the court declined to issue an injunction, which the California Court of Appeal affirmed.
City of Hope National Medical Center v. Genentech, Inc.: We represented Genentech in a breach of contract and breach of fiduciary duty action. In the first trial, the jury hung 7-5 in favor of Genentech. In the retrial, the jury awarded compensatory and punitive damages. The California Supreme Court reversed the breach of fiduciary duty verdict, thereby throwing out the $200 million punitive-damages award.
Pande v. Chevron: We won a $5.5 million jury verdict against Chevron for wrongfully terminating and retaliating against a female petroleum engineer. The U.S. Court of Appeals for the Ninth Circuit affirmed the award.
Keller v. Electronic Arts Inc. et al: We secured a favorable settlement for Electronic Arts Inc. (EA) in this groundbreaking antitrust and right of publicity class action. Current and former student-athletes claimed EA improperly used the athletes’ likenesses and biographical information in its NCAA Football and NCAA Basketball video games.
Private School System v. Northern California County: We defended a California county and certain of its Supervisors against claims that its land use decision regarding a Christian school violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and aspects of the US Constitution. After a multi-week trial in federal court, a jury resolved the case in our client’s favor, denying the school system's request for tens of millions in damages. The plaintiff appealed, but withdrew their appeal after receiving our appellate brief.
United States v. Theodore John Kaczynski: The U.S. Court of Appeals for the Ninth Circuit appointed our firm to serve as pro bono amicus counsel to four victims of the Unabomber. The appeal concerned the constitutionality of an order to sell his writings to benefit victims. The court rejected the Unabomber’s First Amendment arguments and authorized an auction plan.
United States v. Importer: We defended at trial and on appeal a prominent Iranian businessman indicted for smuggling $8 million worth of Persian carpets. The case was won on appeal.
Awards and Honors
- San Francisco Appellate Practice Lawyer of the Year, Best Lawyers in America, 2017
- Listed in Best Lawyers in America for Appellate and Commercial Litigation, 2010 - present
- California Lawyer Attorney of the Year (CLAY) for Legal Services, California Lawyer, 2015
- BASF Award of Merit, 2013
- In the 2011 edition of Benchmark Appellate, Benchmark Litigation recognized Keker & Van Nest as a "leading Appellate Firm in the Ninth Circuit."
- Named by legal-writing expert Bryan Garner as one of four “especially outstanding” appellate brief-writers in the nation
- Kudos from courts: “Pro bono counsel Steven A. Hirsch of the firm of Keker & Van Nest did an excellent job of clarifying the factual and legal issues both in his briefs and at oral argument, for which this court is grateful.” Andriasian v. I.N.S., 180 F.3d 1033, 1040 n. 10 (9th Cir. 1999). “The court is extremely grateful for the extraordinary efforts of pro bono counsel Steven A. Hirsch, of Keker & Van Nest, LLP, San Francisco[.]” United States v. Kaczynski, 551 F.3d 1120, 1123 n.1 (9th Cir. 2009)
- Northern California Super Lawyer, 2006-present
- Co-chair, Amicus Committee, Bar Association of San Francisco
- Member, California Academy of Appellate Lawyers
- Appellate Lawyer Representative to the Ninth Circuit Judicial Conference
Publications and Speaking Engagements
- Moderator, "First District Appellate Symposium: A View from the Bench,” California Court of Appeal for the First Appellate District, 2014
- "The Reply Brief: Making It Count," Bar Association of San Francisco, 2014
- "In Practice: Preparing for Oral Argument," The Recorder, 2013
- "Framing (and Winning) your Substantial Evidence Appeal," Daily Journal, 2012, co-authored with Kate Lazarus
- "The Appellate Process in California," Bridgeport CLE, 2012
- Instructor, "Legal Writing Through a Case," Yale Law School
- Three-time panelist on brief-writing at Ninth Circuit’s biannual Appellate Practice Workshop.
- Four briefs published in Bryan Garner’s textbook, The Winning Brief
- Taught appellate advocacy at UC Berkeley School of Law (formerly Boalt Hall)
- Panelist in numerous programs relating to appeals, brief-writing and California law