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BMC Software GC Pat Tagtow and his senior counsel, Sarah Menendez, spent five years litigating and two weeks at trial claiming that competitor but sometimes business partner IBM made a “material misrepresentation” and acted in “bad faith” during contract negotiations when it agreed to not displace BMC’s products from AT&T’s mainframe systems but did so anyway. There were 52 depositions, 17 expert reports, hundreds of thousands of pages of documents produced as evidence and more than 950 court docket entries.
Menendez was hired by Tagtow as head of litigation three months after BMC filed the lawsuit against IBM in 2017. “It was initiation by fire,” she said.
Menendez said the case against IBM was bigger than any case in her career and the resulting $1.6 billion trial victory was one of the largest damage awards in the U.S. in 2022.
In this expanded Q&A with The Texas Lawbook, Menendez shares more about her best day at BMC and reveals what factors she considers when hiring outside counsel.
To read Mark Curriden’s full-length profile of the BMC legal team in the IBM litigation, click here.
Texas Lawbook: What are the factors you consider when deciding about hiring outside counsel?
Sarah Menendez: There are obvious things — expertise in the type of case that we’re reviewing, sufficient number of attorneys at the firm to handle the anticipated workflow, and (in an ideal world) experience with the judge, the opposing party and the opposing counsel. For me, the deeper question is whether we have a shared litigation philosophy and approach to the case — Is this something that should be staffed by junior attorneys or a case that will take daily attention from the lead partner? How do they like to deal with communication? How heavily involved do they like in-house counsel to be? Is this a case that we should try or a case we should settle? There are no right or wrong answers to these questions, but it does help the relationship tremendously to know whether — at the outset — you agree on the answers.
Lawbook: What has been your best day working at BMC?
Menendez: I think it’s a tossup between the day of the judgment and the last day of trial, but I think that the last day of trial actually has the edge. I had the opportunity to be at the table where some of the titans of the industry (on both sides) practiced their craft. At heart, litigators are storytellers, just like journalists. The course of a trial is a chronicle of what happened and how and where and when and why. I deeply believed in our story, and we told it and told it well. And I was satisfied that our story had been understood. I felt at peace in a way that I think is rare in this profession. As a litigator, I’m not sure you can really ask for more than that.
Lawbook: What does outside counsel need to know about you?
Menendez: I’m a very involved client. There are certainly pros and cons to that, but I hope that the pros outweigh the cons.
Lawbook: What role does diversity play in your decision for hiring outside counsel?
Menendez: I think it’s critically important to have a diverse group of people on any team. We often speak of building diverse teams in terms of it being the right thing to do for society — I don’t want to minimize that. But I think that diversity is also critically important to the actual results of cases. I find that when there is diversity on a team, that team tends to have more interesting and creative ideas, and also tends to notice the significance of a larger variety of issues. In my opinion, that gives diverse teams an edge from a purely practical perspective.
For similar reasons, I’m also passionate about giving young attorneys experience arguing at hearings, particularly discovery hearings — among other reasons, young associates are often the closest to the actual facts/documents/cases. They also take the opportunities that they’re given to argue in court extremely seriously, and in my experience have gotten phenomenal results. It’s a win-win.
Lawbook: Are you working on any pro bono or public service matters that you want to highlight?
Menendez: I spent five years as a member of the executive board for Compudopt, a national nonprofit focused on eliminating the digital divide by providing technology access and education to underserved youth. I continue to contribute to Compudopt as a member of its Gulf Coast regional advisory board. I am also co-troop leader for my daughter’s Girl Scout troop.