Interviewing Esha Bandyopadhyay, Principal- Desi Advocacy: Spotlight on South Asian Women in the Law
By Prianka Misra • January 29, 2020•Ms. JD, Writers in Residence
I had the pleasure of interviewing Ms. Esha Bandyopadhyay, a Principal in the Silicon Valley office of Fish & Richardson P.C. As an experienced attorney handling intellectual property and technology-related commercial matters, she has represented an array of clients ranging from start-ups to Fortune 100 companies. Esha has litigated high-stakes issues regarding medical devices, computer software and hardware, consumer products, copyrights, trademarks, and trade secrets, among several other topics. Esha received her J.D. at the age of 22 from Berkeley Law School, and prior to joining Fish & Richardson in 2018, she has been a partner at Kirkland & Ellis LLP, Turner Boyd LLP, and Winson & Strawn LLP. In the last couple of years, she has been named Best Lawyer in the field of Trade Secrets, a “Woman of Achievement” by Legal Momentum, and a “Woman of Influence” by the Silicon Valley Business Journal.
Thank you for joining me! Let’s get started. You have extensive accomplishments and experience representing Fortune 100 companies, startups, and ground-breaking innovators in intellectual property and commercial litigation. But what drew you to litigation in the first place? And why IP and tech-related litigation? What do you like most about working in your field?
Quite frankly, I fell in love with it. I took intro to IP at [Berkeley Law] and my professor was the amazing Mark Lemley. He was extremely inspiring and motivated me to investigate what IP was. I hadn’t given much thought to a specific practice area when I entered law school and honestly hadn’t even given much thought to litigation versus transactional work. I quickly realized I gravitated towards litigation because it excited me more. Every case is really different, and you get to be creative in the way you run your cases - not that there isn’t creativity in transactional work - but I really felt that the pace and excitement of litigation really appealed to me. And once I took Intro to IP, I knew I wanted to be in the IP space. It felt like it was an area where there was a lot of development and growth continuing, and with that the opportunity to shape the law and change the law. And every case is different. Every technology is different. You are constantly learning something apart from obscure legal provisions and rules. You get to dig into a new kind of science or invention with every case and that had a lot of appeal for me.
We are living in a world where technology is exhibiting unprecedented growth, development, and innovation —machines are becoming increasingly capable on their own, there’s a broad adoption of AI in the technologies we use day to day. How have recent technological developments affected the way that you practice and strategize, and what do you do to stay up-to-date in an ever-changing field?
In terms of what I do to stay up-to-date, I study all the time. It never ends. I feel like we are constantly students in many ways. I am reading up on what’s going on, new technologies, and new developments all the time. It impacts not only the issues our clients are dealing with today, but also allows us to be forward thinking and consider what they might be dealing with tomorrow. For example, despite being a litigator, my work isn’t limited to litigation. We often partner with our clients and manage their patent portfolios so we have to think about not just today, but what tomorrow holds for them. In terms of recent developments in technology, we are constantly thinking about how a certain type of technology is going to continue to evolve: not only how it has evolved to date but what the next steps will be and what that will mean for our clients. We also have to be forward-thinking in the context of monitoring plaintiffs. For patent litigators, a large part of our practice is competitor litigation: two companies are innovating at the same time. But a large part of the time we see suits from non-practicing entities (NPEs)- companies that have purchased a patent who don’t necessarily have their own products or services, but their business model is to use their patent to sue other companies. A lot of times when our clients are seeing lawsuits from a particular NPEs, we’ll start to do a risk assessment of what it means for other clients as well, or other directions in which that NPE or related NPEs may be going.
Moving to your personal anecdotes, I enjoyed your article on LinkedIn, “I’m Grateful I Didn’t Give Up,” where you mentioned an interaction with a woman partner that caused you to momentarily doubt yourself. You also discussed how important it is for women to be comfortable enough in their own skin and to wear their failures as a badge of honor instead of projecting feelings of inadequacy they may have as an attack on other women. Do you have any advice for young women lawyers of color who might face these kinds of doubts more than others?
It’s easier said than done, but I think the most important thing I try to get across to women attorneys or attorneys of color who are starting [their careers], is to not worry about everything else. Focus on the work. The work speaks for itself. I feel that we are in a position today - and I’ve been practicing for twenty years - where things have improved, but there is still a lot of work to be done. We still have to work harder than the average person. That’s just the reality. So when you walk into a meeting or a partner’s office, when you walk into a lunch with any colleague, always be prepared. Always have done your homework, and give it 150% because that’s the world we live in. You need to always be at the top of your game and be the best you can be. If you do that, don’t worry about the rest. Don’t worry about being a woman, or a minority, or both. Because at the end of the day, the people that matter - the clients, the judge that is trying to get it right, the jury that is trying to understand what is going on - that’s what they care about: getting the right outcome.
I had an experience a few years ago. I was heading into trial in the Eastern District of Texas and got really nervous about giving the opening statement because I felt like I didn’t think the venue would be terribly friendly toward minority women. I actually wondered if it would be a disservice to my clients if I were the face of the client.
I reached out to one of my mentors from a prior firm, at Kirkland and Ellis. He is Caucasian and he was the person who really taught me how to do trials. I felt very comfortable having an open conversation with him: I asked, should I have one of my white male colleagues give the opening statement? Because even though I would love to, I’m really concerned that it is not in the best interest of my client.
He asked me, “Would you be as comfortable in terms of the substance and the content if someone else delivered the statement?” And I said, “No, definitely not. I won’t be able to run up there and fix what they are doing or saying!”
And he said, “Then stop thinking about it. You deliver the opening and stop asking yourself if it's right. At the end of the day, the jurors just want to hear the substance. They want to know what is going on. They want to understand the technology, and if you truly believe that you know this better than anyone else on your team, then you go and deliver that statement.”
I’m so grateful that he gave me that advice, because, as it turned out, seven out of ten jurors were women, there were several minorities, and there was one openly gay woman, which none of us expected when we were envisioning that East Texas jury. And we obtained a defense side verdict after less than two hours of jury deliberation. So clearly it was not a bad move!
Do you feel that being a South Asian woman in the legal field has informed your perspective on your work or on the profession in general? Do you think that your cultural or gender identity played a role in how others perceive you in your professional role? Do you embrace or reject these perceptions in any way?
I think that you can’t rid yourself of who you fundamentally are. One of the things that minority women - and in particular, Asian and South Asian women - face is somewhat of a deeply instilled perception that women are supposed to be submissive. I’m not saying that our parents, who are first generation immigrants, have taught us that directly. I think they’ve actually taught us the opposite: “It makes no difference that you’re a woman. You should be studying as hard as your brother or the other men in the community. You should be accomplishing just as much.”
But I think culturally there is still something different. I trained in Indian Classical Dance for decades. I remember in the expressional dance pieces that we would do, when we played a female role versus playing a male role, there was a noticeable difference in the way we were taught to carry ourselves. When you play a male, you send your shoulders back and stand straight. When you play a female role, inevitably, you are simulating holding a scarf [to cover your face] and that speaks to fundamentally who we are. I’ve had to train myself to be different in a work setting - particularly in court, I focus very much on my posture and how I’m carrying myself because I think that demonstrates a sense of confidence. But ultimately, that is very much a personal thing, and it’s about how we view ourselves.
In terms of how others perceive us, I think that things are getting better. There is less and less overt bias against people simply because they are minorities or women. But there is still a lot of implicit bias. I think that for me, that has meant spending time and diverting effort towards educating other people and supporting other people. When I started, I really didn’t have any role models who were Indian in the legal field and there were very few women who had opted to become partners. Many had chosen to become of counsel, go part time, or leave the law firm scene altogether. I think for those of us who have stayed and decided that this is what we want to do, I view us as having an obligation to support the next generation who are coming into the field - pulling them up (and pushing up those who are already with us. We really can’t make progress otherwise, if we don’t look out for each other.
Do you have a mentor, or multiple mentors? Can you tell me about the value that they add to your career development and how you met them?
Most of my mentors have been Caucasian men. For better or for worse, I think that they didn’t see me as a female or as a South Asian. I think they saw me as someone who worked really, really hard. They took me under their wing and they just taught me. I got really lucky in terms of getting a lot of in-person opportunities when I was relatively young in my career.
Right now, a woman I view as a mentor, is a woman attorney still practicing at my firm: Juanita Brooks. She’s been practicing for several decades, is Hispanic American, and must be around 5’1” – but when she walks into the courtroom, she has the attention of every single person in there. She is truly a rockstar trial attorney and has this incredible ability to communicate, be it with a judge of a jury, that is unmatched. I view her as a mentor not only because I can learn by watching - but also because she pushes up other women at our firm and in the field. If she has the opportunity to do something, or speak somewhere, or meet with a contact, and she is unable to go, she will undoubtedly pull in other women in the firm and share that opportunity with them. That is unbelievable.
For lack of a better term, a lot of times in this profession you see a lot of hoarding: holding onto an opportunity because you’re so worried that you’ll lose it otherwise. With Juanita and with my prior mentors, I think the most significant thing about them is that they had or have gotten to a point in their career that this concern is gone completely. They were[/are] able to share and give without worrying. They were[/are] comfortable in their own skin, and for that reason they were able to share.
What does success look like to you - besides achieving wins for clients, are there other ways that you measure your personal and professional success?
In general, we say a win for a client is a success, but especially in high-stakes patent litigation, it’s really how you define a win. There are cases where we represent a defendant and ultimately, we end up paying quite a significant amount of money, but if it is still a tiny fraction of the giant amount that the plaintiff had demanded, then that’s a win.
For me, the question is whether or not I am feeling a sense of fulfillment in the work that I am doing. This changes; it’s not something that is constant or consistent over the course of a year or several years. You constantly have to ask yourself whether you are feeling that sense of fulfillment.
The questions are, am I learning something? Am I doing something for my client that will make me feel good about it? Am I achieving a goal that is meaningful to me? Some years that means, getting incredible verdicts and changing the landscape of the law. Some years it is protecting a client from something terrible happening to them. Sometimes getting a settlement is a major win for the client. It’s really about looking inward and determining whether you have a sense of accomplishment in what you are doing and what you have been doing. If I wake up and look forward to going in to work, then that’s a win.
If you can be true to yourself and do something that you value, then you’ve had a successful week or month or year or decade in your practice.
You sit on various boards, are a litigation principal, are involved with numerous associations, and have received so many awards and recognitions for your achievements as a lawyer. How do you find a balance between career and personal life, and what do you do to de-stress?
I teach Pilates on Sunday mornings. That’s the activity that brings the most balance into my life, in a multitude of ways. It forces me into a completely different space than being at work or being with my family. First of all, it causes me to exercise and be fit, which has many different ramifications for mental and emotional well-being. Apart from that, it causes me to be among friends who have a completely different perspective on life. My yoga and Pilates friends just view things very differently than my friends who are lawyers. Any issue that we discuss, they are coming at it from a completely different angle. That makes me take a step back and consider that perspective - ranging from political issues, to current events, to how we spend money. That has brought a lot of balance into my life, and an ability to prioritize what is important. And it allows me to step back, breathe, and handle everything that is going on.
I am involved in a lot of different organizations, but I’ve streamlined my involvement. The ones in which I am most involved in are causes and issues that are really, really important to me. If you look at the groups and activities in which I’m involved, you’ll see certain themes: diversity issues, arts issues, and moving things forward. I’ve chosen organizations and groups that are truly doing those things in an impactful way. I have a daughter who is three and a half - I’ll think, “Is this work that I’m doing something that will impact her in a way that makes her future better?” The boards that I sit on, and the organizations that I’m involved with, like Legal Momentum (which is dedicated to improving the lives of girls and women), and World Arts West (which organizes the Ethnic Dance Festival, the largest celebration of diversity and the arts in the country) – these are things from which my daughter will one day benefit.
Ultimately, if it’s important, you make time, and if you enjoy it, it’s worth it. So it doesn’t just feel like, “oh god, there’s another commitment.” It’s just something which increases your happiness.
Thank you again for taking the time to speak with me. I’m sure our readers will enjoy your thoughts the wide range of topics we’ve covered!