What Makes Kirk Deliberately Different
“In the next few years, data analytics will revolutionize litigation,” Kirk Jenkins writes on Sedgwick’s appellate blogs, the Illinois Supreme Court Review and the California Supreme Court Review. He has gone all-in at the leading edge of that revolution, creating analytic databases of dozens of data points drawn from every decision of the Illinois and California Supreme Courts since 2000, a resource which is unique among appellate practices. Kirk uses his databases to think about appellate litigation the way business people do: by quantifying every aspect of risk. He’s been interviewed about his groundbreaking work by the Wall Street Journal, The Associated Press, the Los Angeles Times, Roll Call, the Los Angeles Daily Journal, the Northern California Record, the San Francisco Recorder and the Chicago Daily Law Journal.
Kirk chairs Sedgwick’s Appellate Task Force. He has served as appellate counsel in approximately 200 appeals and petitions for interlocutory review in state and federal courts across the country. And yet, he understands that sometimes the most successful appeals are the ones that don’t have to happen — whether because the plaintiff concludes that an appeal from a defense verdict is unlikely to succeed, or because post-trial motions have reduced an adverse verdict to the point where an acceptable resolution is possible.
For that reason, Kirk believes that an appellate lawyer is an essential part of a litigation team even before trial begins. While the trial team works to win the case at trial, Kirk focuses on what will happen afterwards.
Beginning even before the jury is chosen, he works to ensure that the clients’ themes and points are presented in the best way to persuade an appellate court and that the client’s objections to any adverse decisions have been preserved, sometimes briefing and arguing key motions before the trial court himself. Kirk helps the trial team craft the client’s arguments with an eye towards not just what the law is, but what the law may soon become because of not-yet-decided cases pending in the appellate courts.
Kirk has briefed and argued many post-trial motions in the trial courts, reducing adverse judgments and improving the record for appeal before the appeal ever begins. He has also appeared before higher courts as amicus in cases presenting related issues and helped move the law in a more beneficial direction before the client’s case was decided.
In 22 years as a full-time appellate lawyer, Kirk has litigated across many industries on a broad range of issues, including:
- Price fixing, essential facilities and information sharing among competitors
- Federal preemption
- Electrocution injuries
- Failure to warn and design defect
- The admissibility of economic testimony
- Groundwater contamination
- Primary and exclusive administrative jurisdiction
- Alleged asbestos exposure
- The extraterritorial application of federal and state law
- The certification and decertification of consumer class actions
Presentations and Publications
Kirk is a prolific writer and a frequent speaker on emerging issues pending in the appellate courts. He edits and frequently writes for The Appellate Strategist, The Illinois Supreme Court Review and The California Supreme Court Review, the blogs of Sedgwick’s Appellate Task Force. Kirk talks extensively about the reasons Sedgwick established The Illinois Supreme Court Review in this interview at LXBN.com.
Kirk's recent publications include:
- “Divided California Supreme Court Upholds Death Sentence,” quoted, U.S. News & World Report (June 19, 2017).
- “Justices Eye Credit Card Surcharge Laws and Free Speech,” co-author, Law360 (November 3, 2016).
- “The Geography of the High Court Docket,” The Daily Journal (July 28, 2016).
- “Data Shows the Average Appeal Time is Increasing in California,” The Daily Journal (May 31, 2016).
- “How Many Pages Long are Supreme Court Civil Decisions?” Illinois Bar Journal, Vol. 104, No. 5 (May 2016).
- “California Supreme Court in 2015: A Year in Transition,” Law360 (February 4, 2016).
- “The Illinois Supreme Court in 2015: A Statistical Analysis,” Law360 (February 3, 2016).
- “How Long Does It Take the Illinois Supreme Court to Issue a Decision After Oral Argument?” Illinois Bar Journal, Vol. 103, No. 12 (December 2015).
- “Does an Unpublished Decision or Dissent Help You Get to the IL Supreme Court?” Illinois Bar Journal, Vol. 103, n. 9 (September 2015).
- “From Which Counties Do the Supreme Court’s Civil Cases Come?” Illinois Bar Journal, Vol. 103, n.8 (August 2015).
- “What Kinds of Civil Cases Does the Supreme Court Decide?” Illinois Bar Journal, Vol. 103, n. 7 (July 2015).
- “The Illinois Supreme Court in 2014: A Look at the Stats,” Law360 (February 24, 2015).
- “Iskanian Decision Not Such a Clear Win for Business,” The Recorder (September 5, 2014).
- “The California Supreme Court’s Iskanian Decision: Two Steps Forward, One Step Back,” The Legal Pulse, Washington Legal Foundation (July 1, 2014).
- “What We Learned About the Illinois Supreme Court in 2013,” Law360 (February 19, 2014).
- “Guaranty Fund’s Indemnity Payments Not Limited by Statutory Cap,” WorkCompCentral.com (November 8, 2013).
- “What We Can Learn from Illinois’ Kilbride Court,” Law360 (October 31, 2013).
- “Iskanian v. CLS Transportation: Will California Fall in Line on Class-Wide Arbitration Waivers?” Legal Opinion Letter, Washington Legal Foundation (February 8, 2013).
- “The Kilbride Court After Two Years: Pragmatic and Collegial,” Law360 (January 24, 2013).
- “The Illinois Supreme Court 2012: Year in Review,” Law360 (January 15, 2013).
- “Supreme Court to Consider Mailbox Rule,” WorkCompCentral.com (January 7, 2013).
Kirk’s recent presentations include:
- “Adding an Appellate Specialist to the Trial Team: The Sooner the Better,” Sedgwick Appellate Task Force Webinar (June 7, 2016).
- “Data Analytics and the Illinois Supreme Court,” Kane County Bar Association Appellate Practice Committee (July 10, 2015).
- “The California Supreme Court: What to Expect in 2015,” Sedgwick Appellate Task Force Webinar (April 29, 2015).
- “The Illinois Supreme Court: Preview of Coming Attractions, 2014-2015,” Sedgwick Appellate Task Force Webinar (October 22, 2014).
- “The United States Supreme Court’s Busy Class Action Docket,” California State Bar Convention, San Jose, California, October 13, 2013.
- “Lawyers Guide to Using Social Media for Professional and Client Development,” Practicing Law Institute, San Francisco, California (May 2, 2012).
- “Coming Attractions: What to Expect in the Appellate Courts, and What to Do (and Not Do) Once You’re There,” Sedgwick LLP Chicago Seminar Series (July 2011).
- “Punitive Damages Post-Campbell: Using Recent Decisions to Your Client’s Advantage,” American Conference Institute’s 13th Advanced National Forum: “Bad Faith and Punitive Damages,” San Francisco, California (April 28, 2006).
- 2nd U.S. Circuit Court of Appeals
- 5th U.S. Circuit Court of Appeals
- 6th U.S. Circuit Court of Appeals
- 7th U.S. Circuit Court of Appeals
- 8th U.S. Circuit Court of Appeals
- 9th U.S. Circuit Court of Appeals
- 10th U.S. Circuit Court of Appeals
- U.S. Court of Appeals for the D.C. Circuit
- U.S. Court of Appeals for the Federal Circuit
- U.S. District Court (D. Ariz.)
- U.S. District Court (N.D. Cal.)
- U.S. District Court (E.D. Ky.)
- U.S. District Court (W.D. Ky.)
- U.S. Supreme Court
- J.D. (1986) Harvard Law School, cum laude
- B.A. (1983) Harvard College, magna cum laude
Kirk has been repeatedly recognized as among the leaders of the national appellate bar:
- Best Lawyers in America©, Appellate Law, 2010−2018.
- Seventh Circuit Litigation Star in the 2012−2013 editions of the Benchmark Appellate Guide.
- Certified Specialist in Appellate Law, State Bar of California Board of Legal Specialization. (The Supreme Court of Illinois does not recognize certifications in the practice of law, nor are such certificates, awards or recognition a requirement to practice law in Illinois.)
Memberships and Affiliations
American Academy of Appellate Lawyers (by election) — Since its founding in 1990, the American Academy of Appellate Lawyers (AAAL) has committed itself to advancing the administration of justice and promoting the highest standards of professionalism and advocacy in appellate courts. Membership in AAAL is reserved for experienced appellate advocates who have demonstrated the highest skill level and integrity. Nominations to the organization can only be made by current Fellows. Nominees are thoroughly vetted by the legal and judicial communities in a confidential process and must be elected to the fellowship by the board of directors.
California Academy of Appellate Lawyers (by election) — Academy membership is limited to attorneys with substantial experience in the appellate courts, and members are elected only after rigorous scrutiny of their appellate skills. Kirk was elected secretary-treasurer of the Academy in 2017.
- American Law Institute (by election) — The ALI is the leading independent organization in the United States, producing scholarly work to clarify, modernize and otherwise improve the law. The Institute (made up of 4000 lawyers, judges and law professors of the highest qualifications) drafts, discusses, revises and publishes restatements of the law, model statutes, and principles of law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education. Kirk serves as a member consultant to four ALI Restatements currently being drafted by Reporters with the Assistance of ALI members: U.S. Law of International Commercial Arbitration; Torts: Intentional Torts to Persons; Torts: Liability for Economic Harm; and the Restatement of the Law of Liability Insurance, as well as the Project on Sexual & Gender-Based Misconduct on Campus.
- American Bar Association Council of Appellate Lawyers — Kirk also serves by appointment of the chair of the Council of Appellate Lawyers on the Amicus Committee of the Judicial Division of the ABA.
- Society for Empirical Legal Studies — Kirk pursues his interest in applying sophisticated statistical techniques to the analysis of appellate decision-making through his membership in the Society. The Society is an international organization of scholars which stimulates ongoing conversations among scholars in law, economics, political science, criminology, finance, psychology, sociology, healthcare and other disciplines.