Corporate law’s trial of the century was set to begin on October 17, 2022, in a small Wilmington, Delaware courtroom. Twitter v. Musk had it all. Celebrity. The world’s richest person. A product that helped foment revolutions around the world and aided the rise of one of the most consequential – for better or worse – political figures in this country. Leading law firms and lawyers were hired, important questions about whether to enforce contracts between sophisticated players were hashed out. And then there was the small matter of a $44 billion purchase price. The fates of Silicon Valley, national and global politics, contract doctrine, and $44 billion all seemed to rest in the hands of Kathaleen St. Jude McCormick – the chancellor of Delaware – and, eventually, the five members of the state Supreme Court.
And then, it never happened. Two weeks before trial, Elon Musk agreed to honor the merger agreement Twitter sued him for breaching. Musk bought Twitter, fired its executive team, eventually changed its name to “X”, and pursued his role as “chief twit” of a company he had just accused of trying to defraud him. Delaware’s trial of the century ended in a whisper as Chancellor McCormick dismissed the case.
But for a trial that never happened, Twitter v. Musk achieved a remarkable litigation distinction: During the 126 days between the initial complaint and the case’s dismissal, 101 attorneys made formal appearances. That is a potential record in the Court of Chancery. Consider these comparisons based on a dataset constructed by professors Afra Afsharipour and Matthew Jennejohn for their recently published article on gender and the Court of Chancery.[1] The highest number of appearances in a single Chancery case was 78.[2] That case – litigation involving insurance behemoth AIG and alleged misconduct by its former CEO – was open for 2,286 days, compared with 126 for Twitter.[3] Twitter’s 101 attorney appearances stick out even more in the context of the full dataset. For the 15,000 cases in the Afsharipour and Jennejohn dataset, the median number of appearances was four and the mean was 5.2.[4] The vast majority of those cases had below 20 attorney appearances, whereas the 10 cases with the highest number of appearances had a mean of 62.9 appearances.[5]
Although Twitter did not pan out as the corporate trial of the century, the appearance record it set still merits some attention. The case’s rapid beginning and end and high lawyer count offer a unique opportunity to think about the legal profession in the context of a single case. With its docket now complete, I have hand-collected a dataset of Twitter’s attorney appearances. I supplement the docket dataset with additional data from billing records of Wachtell, Lipton, Rosen & Katz (Twitter’s lead counsel) through August 2022. These records were made public by Musk in his post-acquisition fee dispute with Wachtell.[6] These datasets contribute to several conversations regarding the legal profession.
First, to what extent does the gender gap in the profession persist?
Second, to what extent does credentialing appear in legal hiring and staffing?
And third, how does state-based regulation of the profession affect clients’ hiring and firms’ staffing decisions?
In considering these questions, I find that these two sophisticated parties – each with tens of billions of dollars on the line – ended up with teams whose lawyers had remarkably similar levels of experience, positions within law firms, and educational credentials. The lawyers diverged, however, in gender and experience as judicial clerks. Compared with Musk’s team, Twitter’s attorneys had 75 percent more women among them and 75 percent more former clerks to federal or Delaware-state judges. The full paper this post is based upon provides 11 appendix tables breaking down the demographics of lawyers who appeared in Twitter. The following excerpted tables offer some high-level comparisons around gender, law-firm position, years’ experience, and clerkship experience.
Appearances by Women, by Party
| Musk Parties | Third Parties | Total | ||
| Partner | 31.8% (7/22) | 10% (1/10) | 26.1% (6/23) | 25.5% (14/55) |
| Counsel | 0% (0/3) | 50% (1/2) | 100% (3/3) | 50% (4/8) |
| Associate | 36.8% (7/19) | 30% (3/10) | 44.4% (4/9) | 36.8% (14/38) |
| Total | 31.8% (14/44) | 18.2% (4/22) | 37.1% (13/35) | 31.7% (32/101) |
Average Years Since Law-School Graduation, by Party
| Musk Parties | Third Parties | All | ||
| Partner | 22 | 20.7 | 21.8 | 21.8 |
| Counsel | 19.3 | 16 | 13 | 16.1 |
| Associate | 5.7 | 7.1 | 6.4 | 6.2 |
| Women | 11.4 | 11.4 | 12.5 | 11.8 |
| Men | 16.3 | 14.9 | 19.5 | 17.1 |
| All | 14.7 | 14.1 | 16.6 | 15.4 |
Clerkships, by Party
| Musk Parties | Third Parties | Total | ||
| Federal | 50% (22/44) | 18.2% (4/22) | 17.1% (6/35) | 31.7% (32/101) |
| Delaware | 13.6% (6/44) | 18.2% (4/22) | 31.4% (11/35) | 20.8% (21/101) |
| Total | 63.6% (28/44) | 36.4% (8/22) | 48.6% (17/35) | 52.5% (53/101) |
More, the data present evidence that although Twitter and Musk were represented by non-Delaware-based lead firms (Wachtell Lipton for Twitter, Quinn Emanuel Urquhart & Sullivan for Musk), local Delaware lawyers were engaged to a degree suggesting that they added value to the parties’ efforts rather than made appearances simply to satisfy regulations around pro hac vice admissions and retaining local counsel. That evidence is found in the greater-than-necessary numbers of Delaware lawyers appearing in the case and the similar levels of experience of the Delaware and non-Delaware lawyers who made appearances.
All in, this unusually high-profile corporate litigation appears to have had more in common with workaday civil cases than first meets the eye. In that light, my essay (including the original data provided in its appendix) presents a litigation case study for use in scholarly, law-firm, bar-association, and judicial investigations of the three questions it raises, and perhaps many more.
ENDNOTES
[1] Afra Afsharipour & Matthew Jennejohn, Gender and the Social Structure of Exclusion in U.S. Corporate Law, 90 U. Chi. Rev. 1819 (2023).
[2] Email from Matthew Jennejohn, Prof. of Law, BYU L. Sch., to Andrew Jennings, Author (Oct. 29, 2022, 3:08 PM) [hereinafter “Jennejohn Email”].
[3] Docket, In re. Am. Int’l Grp. Inc. Consol. Derivative Litig. (C.A. No. 769-VCS) (Del. Ch.) (initial complaint filed Oct. 22, 2004 and case closed Jan. 25, 2011). The AIG litigation involved several parallel cases and dockets, however, and thus the total AIG-related litigation in the Afsharipour & Jennejohn dataset ran for 2,645 days
[4] See Jennejohn Email, supra note 2.
[5] Id.
[6] Complaint at Exhibit 4, X Corp. v. Wachtell, Lipton, Rosen & Katz, CGC-23-607461 (Cal. Super. Ct. S.F. Cty. July 5, 2023).
This post comes to us from Professor Andrew Jennings at Emory University School of Law. It is based on his recent paper, “101 Lawyers: Attorney Admissions in Twitter v. Musk,” availablehere.
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