Lawdragon magazine2016

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Cover spread, from left to right: Paola Lozano, Bryan Stevenson, Martin Lueck, Karen Patton Seymour, Martha Bergmark, Ted Mirvis, Stuart Singer, Todd Smith, Gayle Klein, Glenn Gerstell, Will Fogg, Walter Lack

INSIDE 100 LEADING LEGAL CONSULTANTS AND STRATEGISTS THE SEPT. 11 CASE: A YEAR OF REPORTING FROM GUANTANAMO BAY THE LEGENDS AND HALL OF FAME GUIDES Q&AS WITH LAWDRAGON 500 MEMBERS DAVID BOIES REFLECTS ON 50 YEARS OF LAW PRACTICE


S G Sher Garner Cahill Richter Klein & Hilbert, L.L.C., located in New Orleans, Louisiana is a nationally renowned full service law firm recognized for commercial litigation and transactions. Our talented team of attorneys provides our clients with the astute knowledge of a large firm practice, but with responsiveness, personal attention and sensible staffing of a smaller firm, all while delivering quality legal services effectively and efficiently. Clients receive the benefit of the firm’s proficiency across all disciplines, through handselected, integrated teams of experienced transactional and litigation lawyers. The hallmark of our service is our attention to the needs of our clients that goes beyond the rules of professional responsibility. When representation requires litigation, we are aggressive trial lawyers, who are not afraid to fight to protect our clients’ rights. We also believe in reasonableness and cooperation, however, and adjust our representation to suit the needs of any particular client. A client who brings us a transactional matter can expect an honest and accurate appraisal of the matter and a resolution in the most practical, direct and economically feasible manner.

Sher Garner Cahill Richter Klein & Hilbert, L.L.C. Co-Managing Members, James M. Garner & Leopold Z. Sher 909 Poydras Street, Suite 2800 • New Orleans, LA 70112 (504) 299-2100 • www.shergarner.com


One of the nation’s premier plaintiff’s personal injury law firms renowned for its achievements in the courtroom and its contributions to the community.

Trial lawyers 33 N. DEARBORN, CHICAGO, IL 60602 | 888.364.3191 | CORBOYDEMETRIO.COM


Winston & Strawn congratulates its partners for being recognized in Lawdragon’s “500 Leading Lawyers in America”

Mats Carlston

Linda Coberly

Steven Gavin

Jeffrey Kessler

Joel Rubinstein

Dan Webb

Finance Practice Co-Chair

Partner, Corporate

Managing Partner Chicago, Appellate & Critical Motions Practice Chair

Antitrust/Competition Practice Chair, Sports Law Practice Co-Chair, Firm Co-Chairman

Partner, Corporate

North America

Europe

Firm Co-Chairman

Asia

winston.com

Stephen D’Amore Litigation Practice Co-Chair

George Lombardi Litigation Practice Co-Chair

Michael Elkin

Managing Partner New York

Thomas Lane Partner, Litigation


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500

{ CONTENTS } 16 LETTER FROM THE EDITOR AND PUBLISHER 22 THE MOST POWERFUL EMPLOYMENT LAWYERS

For the first time ever in print, we present the 100 most powerful lawyers on the employer side of the bar, along with specialized leaders in employee benefits, labor and employment law, and immigration.

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36 100 LEADING LEGAL CONSULTANTS & STRATEGISTS

It took eight years for us to reprise our guide to those valued advisors whom lawyers call upon for their niche expertise. But in these pages, you’ll see that the wait was worth it. Featuring:

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39 Adam Gerchen, Ashley Keller and Travis Lenkner of Gerchen Keller Capital 42 Lynn Mestel of Mestel & Co. and Hire Counsel 43 John Sweeney of Logicforce 48 Marcia Horowitz of Rubenstein 51 Sabina Lippman of Lippman Jungers 53 Terry M. Isner and Vivian Hood of Jaffe

58 PRETRIAL OF THE CENTURY: THE SEPT. 11 CASE

An inside look at the government’s epic attempt to prosecute the five accused 9/11 plotters in an untested military system at Guantanamo Bay – and defense lawyers’ efforts to prevent the government from executing the men they say are torture victims. A special report based on a year of reporting from Guantanamo Bay.

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95 THE HALL OF FAME

The late U.S. Supreme Court Justice Antonin Scalia is among the 23 new honorees to be inducted into the Hall of Fame for their outstanding contribution to the legal profession.

102 LEGENDS OF THE 500

This year, we add another 41 truly remarkable lawyers to the Legends guide – which includes only those rare individuals who have made the Lawdragon 500 at least ten times.

116 THE LAWDRAGON 500 LEADING LAWYERS IN AMERICA This year, the most elite group in the legal profession has a record number of women honorees – a full one-third of the cast. Featuring:

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119 Karen Patton Seymour of Sullivan & Cromwell 125 Ted Mirvis of Wachtell Lipton 131 Glenn Gerstell of the National Security Agency 137 Antonia Apps of Milbank 139 Martin Lueck of Robins Kaplan 145 William “Bill” T. Reid IV and Lisa S. Tsai of Reid Collins 153 Gayle Klein of McKool Smith 157 Todd Smith of Power Rogers 161 Nicholas Gravante of Boies Schiller 165 Will Fogg of Cravath 169 Stuart Liner of Liner LLP

LAWDRAGON 500 ISSUE 17 | WWW.LAWDRAGON.COM


LAWDRAGON LAWDRAGON 2006-2015 2006-2015 LAWDRAGON HONOREE, 2006-2016 2006-2016

FF

rank N. Darras, founding partner of America’s top rank N. Darras, founding partner of America’s top disability insurance law firm, is humbled and honored disability insurance law firm, is humbled and honored by his continued inclusion in Lawdragon’s 500 Leading by his continued inclusion Lawdragon’s 500 Leading Lawyers in America. Darrasinhas been an honoree for the Lawyers in America. Darras has been an honoree for the last ten years in a row. last It ten years in a row. only takes a quick glance at the national It only takes a quick glance at the reputation Darras has established tonational understand his reputation Darras has established understand repeated recognition as a leadingto lawyer. Darras his has built repeated recognition as a leading lawyer. Darras has built the largest individual and long term disability insurance the largestpractice individual and long disability insurance litigation dedicated toterm helping the disabled and litigation practice dedicated to helping the disabled and disadvantaged fight Big Insurance. disadvantaged fight Big Insurance.

| Toll-free 800.458.4577 | | Toll-free 800.458.4577 |

DarrasLaw has put its 100+ years of collective DarrasLaw has put its 100+ years of collective insurance and litigation experience to good use by insurance and litigation experience to good use by taking on and beating all major insurance companies. taking on and beating allmillion major recovered insurance companies. The result is nearly $800 in wrongfully The result is nearly $800 million recovered wrongfully denied insurance benefits for clients acrossin the nation. denied insurance benefits for clients across the nation. Frank N. Darras has evaluated, litigated and resolved Frank N. Darras has evaluated, litigated and resolved more disability and long-term care cases than any other more and long-term care cases than any other lawyerdisability in the United States. DarrasLaw is America’s most lawyer in the United States. DarrasLaw is America’s decorated disability firm because of its unparalleledmost decorated disability firm because of its unparalleled national results and its ability to change disabled lives, national results and its ability to change disabled lives, one client at a time. one client at a time.

| www.DarrasLaw.com | | www.DarrasLaw.com |


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173 Wayne Mason of Sedgwick LLP 176 Clifford Aronson, Brian Duwe, Ivan Schlager, Erica Schohn, Sally Thurston of Skadden 185 Blair Nicholas of Bernstein Litowitz 189 Jeffrey Kessler of Winston & Strawn 193 Joel Laitman and Christopher Lometti of Cohen Milstein 195 Patty Glaser of Glaser Weil 199 Robert Bingle of Corboy & Demetrio 201 James Clark of Cahill Gordon 207 Steve Lane of Herman Herman 211 Cynthia Arato and Alexandra Shapiro of Shapiro Arato 215 Michael Kelly of Walkup Melodia 219 Dona Szak of Ajamie LLP 221 Stuart Singer of Boies Schiller 225 Kathy Love of McGinn Carpenter 227 Steven Molo of MoloLamken 231 Walter Lack of Engstrom Lipscomb 236 Bryan Stevenson of Equal Justice Initiative

238 THE LEGACY OF DAVID BOIES

There’s no better way to end our most epic issue than talking gaming, risk and the American legal system with the ultimate legal legend on his 75th birthday.

We congratulate John Tarantino on being a “Lawdragon Legend” — one of just 50 attorneys to make The Lawdragon 500 Leading Lawyers in America each year since 2005. Learn more at www.apslaw.com P R O V I D E N C E , R I / B O S TO N , M A / N E W P O R T, R I / M A N C H E S T E R , N H / W W W. A P S L A W. C O M


We Are Again Proud to Honor Our Seven Dragons

Max Berger New York

Mark Lebovitch New York

Hannah Ross New York

Blair Nicholas San Diego

Salvatore Graziano New York

David Stickney San Diego

Gerald Silk New York

Congratulations to our partners on their selection as Lawdragon 500 Leading Lawyers in America Bernstein Litowitz Berger & Grossmann LLP is one of the nation’s leaders advising institutional investors on corporate governance, shareholder rights and securities litigation issues. On behalf of its clients, BLB&G has obtained more significant recoveries and precedent-setting corporate governance reforms than any other law firm representing shareholders in securities litigation.

www.blbglaw.com New York

California

Chicago

Trusted Advocacy. Proven Results.

Louisiana


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THE LAWYERS FOR CLIENTS WHO MEAN BUSINESS. Boies, Schiller & Flexner LLP, founded in 1997, has grown to over 250 lawyers practicing in offices strategically located throughout the United States and in London. With a world-class litigation practice and a fast-growing corporate group, our attorneys regularly serve as lead counsel on complex, high-profile, global matters.

BOIES, SCHILLER & FLEXNER PROUDLY CONGRATULATES OUR PARTNERS NAMED TO THE PRESTIGIOUS LAWDRAGON 500 LEADING LAWYERS IN AMERICA GUIDE.

OFFICES LOCATED IN: NEW YORK New York City, Armonk, Albany

DISTRICT OF COLUMBIA Washington, DC

UNITED KINGDOM London

CALIFORNIA Los Angeles, Oakland, Palo Alto

FLORIDA Miami, Fort Lauderdale, Hollywood, Orlando

NEVADA Las Vegas

NEW HAMPSHIRE Hanover


Christopher Boies

David Boies

Karen Dyer

Nicholas Gravante

New York

Armonk

Orlando

New York

William Isaacson

Bill Ohlemeyer

Jonathan Schiller

Washington, DC

New York

New York

Natasha Harrison London

Jonathan Sherman

Stuart Singer

Stephen Zack

Washington, DC

Ft. Lauderdale

Miami

L AW D R A G O N H O N O R S WWW.BSFLLP.COM


PUBLISHER/CHIEF EXECUTIVE OFFICER K atrina D ewey

䰀愀眀搀爀愀最漀渀 ㄀  䌀漀渀猀甀氀琀愀渀琀℀

katrina @ lawdragon . com

EDITOR-IN-CHIEF/SENIOR VICE PRESIDENT J ohn R yan john @ lawdragon . com

VICE PRESIDENT, BUSINESS DEVELOPMENT AND SALES C arlton D yce carlton @ lawdragon . com

ART DIRECTOR S ammy E lfatrany sammy @ elfatranydesign . com

EDITORIAL ASSISTANT M ichelle F ox michelle @ lawdragon . com

ASSISTANT EDITOR J eff S chult jeff @ lawdragon . com

COVER DESIGN S tephanie B lackman sb @ blackmandesign . net

Issue 17 LAWDRAGON INC.

305 W. Broadway #239 New York, NY 10013

© Lawdragon Inc. 2016 All rights reserved. Reproduction in whole or part without written permission is strictly prohibited. For reprints of pages from this magazine, contact Carlton Dyce at carlton@lawdragon.com.

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WHEN YOU HAVE FINISHED WITH THIS MAGAZINE, PLEASE RECYCLE IT.


CHRISTOPHER A. SEEGER CHRISTOPHER A. SEEGER

Christopher A. Seeger is broadly admired as one of the nation’s most versatile, innovative and accomplished members Christopher A. trial Seeger is Mr. broadly admired one appointed of the nation’s most versatile,Steering innovativeCommittee and accomplished of the plaintiff’s bar. Seeger has as been to the Plaintiff's and as members State Court of the plaintiff’s trial bar. Mr. Seeger has been to the Plaintiff's Steering and as State Liaison Counsel in the nationwide Volkswagen Cleanappointed Diesel Litigation. In his recent roleCommittee as Co-Lead Counsel on Court the NFL Liaison Counsel in the nationwide Volkswagen Clean Diesel Litigation. In his recent role as Co-Lead Counsel on the NFL

Concussion case, Mr. Seeger served as chief negotiator in obtaining an uncapped settlement on behalf of thousands of Concussion case, Mr. Seeger served as chief negotiator in obtaining an uncapped settlement on behalf of thousands of

retired NFL players who suffered brain-related injuries as a result of hits sustained during their playing careers. retired NFL players who suffered brain-related injuries as a result of hits sustained during their playing careers.

Mr. Seeger's other leadership positions include Chair of the Trial Committee in the Chinese-Manufactured Drywall Mr. Seeger's other leadership positions include Chair of the Trial Committee in the Chinese-Manufactured Drywall

Products Liability Multidistrict Litigation (MDL), and appointments to the MDL Actos Product Liability Plaintiffs’ Steering Products Liability Multidistrict Litigation (MDL), and appointments to the MDL Actos Product Liability Plaintiffs’ Steering

Committee and the Plaintiffs’ Executive Committee (PEC) in the Depuy Orthopaedics, Inc. ASR Hip Implant Products Committee and the Plaintiffs’ Executive Committee (PEC) in the Depuy Orthopaedics, Inc. ASR Hip Implant Products

MDL. He also was named as Co-Lead Counsel in the Testosterone Replacement Therapy Products Liability MDL. MDL. He also was named as Co-Lead Counsel in the Testosterone Replacement Therapy Products Liability MDL. WithWith offices in New York, New Jersey, LLP has hasearned earneda anational national reputation a preoffices in New York, New Jersey,and andPennsylvania, Pennsylvania, Seeger Seeger Weiss Weiss LLP reputation as as a preeminent plaintiff’s injury, personal personal injury, injury, medical medicalmalpractice, malpractice, eminent plaintiff’sfirm, firm,representing representing clients clients inin pharmaceutical pharmaceutical injury, environmental cases, consumer class cases,among amongothers. others. environmental cases, consumer classactions, actions,and andqui qui tam tam (whistleblower) (whistleblower) cases, Lauded by the legal communityand andmajor majorpublications, publications, Seeger Seeger Weiss plaintiffs andand Lauded by the legal community Weiss has has “gained “gainedthe therespect respectof ofthethe plaintiffs defense alike willingness ‘alwaystake takeon on the the tough tough cases’ cases’ and of of everything when defense bar bar alike for for its its willingness toto‘always and ‘jump ‘jumpright rightinto intothe theheart heart everything when everyone is afraid,’” according Legal500. 500. everyone elseelse is afraid,’” according totoLegal

EEGERW WEISS EISSLLP LLP SSEEGER DRUG AND TOXIC INJURY

DRUG AND TOXIC INJURY

PERSONAL INJURY

PERSONAL INJURY

CLASS ACTIONS

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77 WATER STREET, NEW YORK, NY 10005

77 WATER STREET, NEW YORK, NY 10005 888.584.0411 212.584.0700 888.584.0411 212.584.0700 W W W. S E E G E R W E I S S . C O M I N F O @ S E E G E R W E I S S . C O M W W W. S E E G E R W E I S S . C O M I N F O @ S E E G E R W E I S S . C O M

WHISTLEBLOWER LITIGATION

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GIR ARDI

|

KEESE

FROM LEFT TO RIGHT: Howard B. Miller, John K. Courtney, James G. O’Callahan, Keith D. Griffin, Thomas V. Girardi, David R. Lira, Amy Fisch Solomon, Robert W. Finnerty, John A. Girardi

A national reputation built on helping the little guy Review the National Law Journal’s list of the top 11 plaintiff’s law firms in the country, Lawdragon’s list of the nation’s leading attorneys, or the Los Angeles Daily Journal’s ranking of the city’s best firms or its top 100 lawyers list, and you’ll regularly find Girardi | Keese attorneys named. Recognized for their legal acumen and superb trial skills, the 38 attorneys of Girardi | Keese frequently prevail.

RECORD OF SUCCESS | For more than 40 years, Girardi | Keese

has been at the forefront of injury cases involving physical hurt, property damage or financial harm. Since 1965, the firm has recovered more than $3 billion against some of the world’s largest corporations, including Exxon, Shell, the Ford Motor Company, DuPont and Walt Disney World. Girardi & Keese has also been involved in many groundbreaking verdicts, such as the first $1 million medical malpractice verdict in California in the 1970s, and more recently, the $1.9 billion settlement on behalf of California’s energy customers. Additionally, Tom Girardi was a significant architect of the $4.85 billion Vioxx settlement.


Amy Cantrell

Each win is important because every case represents the health and well-being of individuals in Southern California—the little guy. Individuals who have been harmed in some way are at the heart of Girardi | Keese’s practice, whether the injury was due to medical malpractice, product failure, wrongful termination, vehicle accident or similar wrongdoing. LEADING LAWYERS | This year, three Girardi | Keese lawyers made the Lawdragon 500 Leading Lawyers in America guide—founding partner Thomas V. Girardi, David R. Lira and Amy Fisch Solomon.

G K

GIR ARDI

|

KEESE

LAWYERS

1126 Wilshire Blvd. Los Angeles, CA 90017 ph: 213.977.0211

fax: 213.481.1554 www.girardikeese.com

155 W. Hospitality Lane, Suite 260 San Bernardino, CA 92408 ph: 909.381.1551


WE CONGRATULATE ALL THE ATTORNEYS SELECTED TO THE 2016 LAWDRAGON 500 LEADING LAWYERS IN AMERICA, INCLUDING EACH OF OUR NAMED PARTNERS: DARREN ROBBINS, PAUL GELLER, SAMUEL RUDMAN & MICHAEL DOWD. Robbins Geller Rudman & Dowd LLP is widely recognized as one of the leading law firms advising U.S. and international institutional investors and other clients in complex litigation emphasizing securities fraud, corporate takeovers, shareholder derivative claims, consumer fraud, antitrust claims, insurance fraud, and intellectual property, as well as whistleblower protection and qui tam suits. With 200 lawyers in 10 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history and ranked first in both the total amount recovered for investors and number of shareholder class action recoveries in ISS’s SCAS Top 50 Report for each of the last two years. Robbins Geller attorneys have shaped the law in the area of securities litigation and shareholder rights, and have recovered tens of billions of dollars on behalf of the Firm’s clients. Robbins Geller not only secures recoveries for defrauded investors, it also strives to implement corporate governance reforms, helping to improve the financial markets for investors worldwide. Please visit rgrdlaw.com for more information.

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A NOTE FROM THE PUBLISHER AND EDITOR

E WAIT UNTIL THE LAST POSSIBLE MINUTE TO REFINE THE WORDS THAT TOUCH OFF OUR ANNUAL MAGAZINE, WHICH THIS YEAR GAVE US THE OPPORTUNITY TO FINALIZE THESE THOUGHTS ON THE DAY AFTER THE PRESIDENTIAL ELECTION. The perceived wisdom told us that we’d include here that the U.S. elected its first female president. For us, the timing would have been fitting as an all-time high of 165 woman lawyers made the Lawdragon 500 featured this year – a full one-third of the list. Instead, we are left with a good deal more uncertainty about wide expanses of domestic and foreign policy – but with an absolute certainty that the lawyers featured in these pages will remain as busy as ever, perhaps some in ways they had not fully anticipated, in 2017 and beyond. Among them are a group of immigration advocates who we anticipate are already hard at work on our changed world. To be honest, we thought last year would be our “biggest” year when it came to the annual magazine. Ten-year anniversaries don’t come around often, it was a hard milestone to reach and a blockbuster issue. But this year, joined by our new head of business development, Carlton Dyce, whom many of you have gotten to know over the past several months, we pushed ourselves even farther, with new products and editorial efforts. In a year of positive developments, among the best was the relaunch of our guide to the 100 Leading Legal Consultants and Strategists – which we first rolled out in 2008 but hadn’t done since. Why did we wait eight years? We don’t have a satisfying answer beyond the reality that the year we first published this guide the financial collapse occurred, causing us and many other small companies that wanted to survive to focus on core products and services. As we did some outreach in mid-2016, however, it was clear a new group of consultants had emerged that made our guide timely and helpful. From an interest in litigation financing and new technological challenges faced by firms, to the age-old needs for assistance with communications and marketing, as well as attorney recruiting and law firm mergers, there was no shortage of worthy candidates to make the guide. And already, we’ve received significant feedback about whom to add or other areas to cover; we can guarantee that Consultants will return in 2017. The past year has also witnessed some of the most intensive reporting work that Lawdragon has ever done. Since last fall, Editor-in-Chief John Ryan has attended every pretrial hearing in the military commission being held at Guantanamo Bay against the five detainees accused of planning and financing the Sept. 11 terrorist attacks. John has made additional trips to cover pretrial hearings in a separate commissions tribunal and to take part in media tours of the detention facility. We have published on Lawdragon.com (go to www.lawdragon.com/guantanamo-bay) more than 30 stories on Guantanamo and the commis-

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LAWDRAGON 500 ISSUE 17 | WWW.LAWDRAGON.COM


“All Star Litigation Shop.” —LAW360

NEW YORK 430 Park Avenue New York, NY 10022 T: 212.607.8160

WASHINGTON, D.C. 600 New Hampshire Avenue, N.W. Washington, D.C. 20037 T: 202.556.2000

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CHICAGO 300 North LaSalle Street Chicago, IL 60654 T: 312.450.6700


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sions, including daily coverage of the proceedings, features on major legal issues and profiles of the attorneys, including the chief prosecutor and chief defense counsel. The centerpiece is the feature contained in this magazine – “Pretrial of the Century: The Sept. 11 Case at Guantanamo Bay” – which provides a comprehensive take on the protracted military tribunal that is attempting to account for one of the most important events in our nation’s history. We believe it is well worth your time to learn why this case – the second attempt in the untested military commissions system, the first under Bush and this under Obama – is not yet close to trial, even as we moved past the 15th anniversary of the Sept. 11 attacks. This is fascinating legal history being made in real time. Not to be outdone is CEO and Publisher Katrina Dewey. Whereas John is confined to circumscribed spaces in the tightly controlled Guantanamo detention and commissions area, Katrina has been roaming the nation like a true free spirit – watching a staggering amount of the land roll by in this historic election year. Her mission is the “Campus Road Trip,” our ongoing effort to visit every law school in the United States, some 250 of them – with 158 in 33 states hit so far. Many of you have taken notice of and supported our sister Campus site (campus.lawdragon.com), which aims to be an alternative to other school rankings like U.S. News. While there are many aspects of this initiative, we realized last year that leveraging our ability to produce great content would take the site where it needed to go. And so it has taken Katrina almost everywhere – from the Rust Belt that launched a revolution to the great University of Texas Law School to the back alleys of downtown Phoenix, where she searched for Arizona Summit Law School. The school does not have a lot going for it, but the graffiti in the trash-strewn alley is a plus. Of course, most of the trip and Katrina’s write-ups are to and about schools that are actually working hard – and succeeding – at preparing the next generation of lawyers, whose motivations in getting their J.D. are more varied than anyone imagines. We have visited an incredibly diverse mix of professors, administrators, deans and students in enough regions to make any presidential candidate proud. The year 2016 will be remembered by most for the Trump victory. For us, it will be remembered for the unlikely conversations between one business partner on a land line in the U.S. naval base on Cuba to another as she drives 800 miles to her next law school. But that’s what you call reporting and what we hope gives you a reason to care about Lawdragon, the stories we tell and the voice we bring to this country’s great lawyers. We wouldn’t be on this strange 11-year trip without your support. And we could not be more grateful to each of you.

KATRINA DEWEY Publisher and CEO katrina@lawdragon.com

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LAWDRAGON 500 ISSUE 17 | WWW.LAWDRAGON.COM

J O H N R YA N Editor-in-Chief john@lawdragon.com


PAUL A. TRAINA WALTER J. LACK Southern MH AV Preeminent® PAUL A.California TRAINA WALTER J. LACK Lawyer 2004-2009 SC Super Lawyer 2004-2009, 2012-2016 Super PAUL A.California TRAINA Southern WALTER J. LACK MH AV Preeminent® Law Dragon Legend 2004-2016 MH AV Preeminent® SC Super Lawyer 2004-2009, 2012-2016 SC Lawyer 2004-2009, 2012-2016 LawSuper Dragon Legend 2004-2016 Law Dragon Legend 2004-2016

Southern California Super Lawyer 2004-2009 Super Lawyer 2004-2009

STEVEN C. SHUMAN MH AV Preeminent® STEVEN C. SHUMAN STEVEN C. SHUMAN MH AV Preeminent®

ELIZABETH L. CROOKE MH AV Preeminent® ELIZABETH L. CROOKE ELIZABETH L. CROOKE MH AV Preeminent®

BRIAN D. DEPEW MH AV Preeminent® BRIAN D. DEPEW BRIAN D. DEPEW MH AV Preeminent®

GARY A. PRAGLIN GARY PRAGLIN MH AVA. Preeminent® GARY PRAGLIN MH AVA. Preeminent®

DANIEL G. WHALEN SC Super Lawyer 2013-2014 DANIEL G. WHALEN DANIEL G. WHALEN SC Super Lawyer 2013-2014

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BRIAN J. HEFFERNAN SC SuperJ.Lawyer 2010-2016 BRIAN HEFFERNAN BRIAN HEFFERNAN SC SuperJ.Lawyer 2010-2016

RICHARD P. KINNAN RICHARD P. KINNAN MH AV Preeminent® RICHARD P. KINNAN MH AV Preeminent®

BRIAN J. LEINBACH BRIAN J. LEINBACH BRIAN J. LEINBACH

STEVEN J. LIPSCOMB SC Rising Star 2008-2010 STEVEN J. LIPSCOMB STEVEN J. LIPSCOMB SC Rising Star 2008-2010

MH AV Preeminent®

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We Get Results We Get Results We Get Results and have for over 40 years and have for over 40 years and have for over 40 years 2015 Fortune Investors Guide Top 2015 Fortune Investors Guide Top Ranked Law Firm 2015 Fortune Investors Guide Top Ranked Law Firm Ranked Law Firm 2015 U.S. News® Best Law Firms™ ® Best Law Firms™ 2015 Newsfor Tier 1 U.S. National Mass Tort Litigation ® Best Law Firms™ 2015 Newsfor Tier 1 U.S. National Mass Tort Litigation Tier 1 25 National for Mass Litigation Over attorneys, with Tort numerous Over 25 attorneys, with numerous Southern California Super Lawyers® Over 25 attorneys, numerous Southern Californiawith Super Lawyers® Southern California Super Lawyers® ® 2015 U.S. News Best Lawyers™ ® Bestof 2015Angeles U.S. News Lawyers™ Los Lawyer The Year ® Best Lawyers™ 2015 U.S. News Los Angeles Lawyer of TheLitigation Year Walter J. Lack - Mass Tort Los Angeles Lawyer TheLitigation Year Walter J. Lack - MassofTort Walter J. Lack Mass Tort Litigation 10 figures in settlements/verdicts 10 figures numerous in settlements/verdicts including precedent-setting 10 figures including numerous precedent-setting recoveriesin settlements/verdicts including recoveriesnumerous precedent-setting recoveries 9 FIGURES IN REFERRAL FEES PAID 9 FIGURES IN REFERRAL FEES PAID 9 FIGURES IN REFERRAL FEES PAID

SC Rising Star 2008-2010

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Our mission is to fight for our clients with courage, conviction and integrity. Skilled, diligent and committed, Mary Alexander is an energetic advocate for truth and justice on behalf of people who have been wrongfully injured. Her firm has a long track record of multi-million dollar verdicts and settlements as well as a $1.15 billion verdict against lead paint companies involving the poisoning of children in their homes.

LAWDRAGON 5 0 0 L E A D I N G L AW Y E R S I N A M E R I C A

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Jeff Klein WEIL (NEW YORK)

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LAWDRAGON 500 ISSUE 17 | WWW.LAWDRAGON.COM


THE LAWDRAGON 500

THE 100 MOST POWERFUL EMPLOYMENT LAWYERS Lawdragon is proud to present the 2016 Guide to the Most Powerful Employment Lawyers, the result of hundreds of law firm submissions and editorial research conducted over the past year. This is the ninth annual guide to leading corporate, defense-side employment lawyers we have produced in partnership with Human Resource Executive (HRE) magazine. In addition to the 100 Most Powerful Employment Lawyers below, you can also view the Top 20 in Employee Benefits; the Top 20 in Traditional Labor & Employment Law; the Top 20 in Immigration; 40 Up and Comers in the field; and, for the fourth year, a Hall of Fame list.

PHOTO BY: GREG ENDRIES

LAWDRAGON 500 ISSUE 17 | WWW.LAWDRAGON.COM

23


LOGICFORCE CONGRATULATES JOHN SWEENEY ON BEING NAMED TO LAWDRAGON’S 100 LEADING LEGAL CONSULTANTS AND STRATEGISTS FOR 2016


SINCE 2007, MORE THAN 2,000 MID-SIZED LAW FIRMS HAVE MERGED OR CLOSED SO WHAT’S THE SOLUTION?

IMPROVE YOUR LAW FIRM’S PROFIT PER PARTNER AND NEW CLIENT ACQUISITION RATIO

The LOGICFORCE New Style of IT has revolutionized the way law firms use and pay for their IT, Cyber Security and eDiscovery ecosystem to gain competitive advantage. • • • • •

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Unleash productivity firm wide and achieve your desired business outcomes. To learn more, view John Sweeney’s Law Dragon profile or visit our website: www.logicforce.com.

SERVING MORE THAN 100 INSTITUTIONAL LAW FIRMS


THE 100 MOST POWERFUL EMPLOYMENT LAWYERS Nancy L. Abell, Paul Hastings, Los Angeles / Rory Judd Albert, Proskauer, New York / Rosemary Alito, K&L Gates, Newark / Lorie E. Almon, Seyfarth Shaw, New York / Fred W. Alvarez, Jones Day, Palo Alto / Michael L. Banks, Morgan Lewis, Philadelphia / Paula A. Barran, Barran Liebman, Portland / Ned H. Bassen, Hughes Hubbard, New York / Mark Batten, Proskauer, Boston / Joseph Baumgarten, Proskauer, New York / Scott C. Beightol, Michael Best, Milwaukee / Charles S. Birenbaum, Greenberg Traurig, San Francisco / Elise M. Bloom, Proskauer, New York / James N. Boudreau, Greenberg Traurig, Philadelphia / Paul

W. Cane Jr., Paul Hastings, San Francisco / Mark Casciari, Seyfarth Shaw, Chica-

go / Charles

S. Caulkins, Fisher & Phillips, Ft. Lauderdale / Apalla U. Chopra, O’Melveny,

Los Angeles / Vincent

A. Cino, Jackson Lewis, Morristown / Shauna Clark, Norton Rose

Fulbright, Houston / Joseph

T. Clees, Ogletree Deakins, Phoenix / William L. Cole, Mitch-

ell Silberberg & Knupp, Los Angeles / John

J. Coleman III, Burr & Forman, Birmingham /

Catherine A. Conway, Gibson Dunn, Los Angeles / Harriet E. Cooperman, Saul Ewing, Baltimore / Joseph

J. Costello, Morgan Lewis, Philadelphia / Barbara Jean D’Aquila,

Norton Rose Fulbright, Minneapolis / Lisa Orrick, New York / Lawrence Hostetler, Houston / Brian

J. Damon, Seyfarth Shaw, Boston / Mike Delikat,

C. DiNardo, Jones Day, Chicago / Dennis P. Duffy, Baker-

West Easley, Jones Day, Chicago / Kim F. Ebert, Ogletree Dea-

kins, Indianapolis / Juan Enjamio, Hunton & Williams, Miami / Anne gan Lewis, Miami / Debra

J. Fischman, Sher Garner, New Orleans / Mark J. Foley, Drinker

Biddle, Philadelphia / Gary York / Michael / Elizabeth

Marie Estevez, Mor-

D. Friedman, Weil, New York / John P. Furfaro, Skadden, New

J. Gray, Jones Day, Chicago / Brian S. Greig, Norton Rose Fulbright, Austin

P. Hardy, Kienbaum Opperwall Hardy & Pelton, Birmingham, Mich. / Gerald

T. Hathaway, Drinker Biddle, New York / Lynne C. Hermle, Orrick, Menlo Park / Patrick H. Hicks, Littler, Las Vegas / Stephen J. Hirschfeld, Hirschfeld Kraemer, San Francisco / Robert W. Horton, Bass Berry & Sims, Nashville / Jerry M. Hunter, Bryan Cave, St. Louis / Maurice G. Jenkins, Jackson Lewis, Southfield / W. Carl Jordan, Vinson & Elkins, Houston

26

LAWDRAGON 500 ISSUE 17 | WWW.LAWDRAGON.COM


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Ellen C. Kearns, Constangy, Boston / Jennifer P. Keller, Baker Donelson, Johnson City / Tracey A. Kennedy, Sheppard Mullin, Los Angeles / F. Curt Kirschner Jr., Jones Day, San Francisco / Jeffrey

S. Klein, Weil, New York / Jeffrey Kohn, O’Melveny, New York / Jay

P. Krupin, BakerHostetler, ”Washington, D.C.” / Matthew W. Lampe, Jones Day, New York / John

B. Langel, Ballard Spahr, Philadelphia / Kevin B. Leblang, Kramer Levin, New York

/ Adam

Levin, Mitchell Silberberg & Knupp, Los Angeles / John B. Lewis, BakerHostetler,

Cleveland / Robert

G. Lian Jr., Akin Gump, ”Washington, D.C.” / Joseph C. Liburt, Orrick,

Menlo Park / Donald

R. Livingston, Akin Gump, ”Washington, D.C.” / Alison B. Marshall,

Jones Day, ”Washington, D.C.” / William

C. Martucci, Shook, Kansas City / Matthew T.

Miklave, Robinson+Cole, Stamford / Marko J. Mrkonich, Littler, Minneapolis / Daniel L. Nash, Akin Gump, ”Washington, D.C.” / Michael Patrick O’Brien, Jones Waldo, Salt Lake City / Camille

A. Olson, Seyfarth Shaw, Chicago / Anthony J. Oncidi, Proskauer,

Los Angeles / William

P. Perkins, Seyfarth Shaw, New York / Laura R. Petroff, Winston

& Strawn, Los Angeles / Charles

M. Poplstein, Thompson Coburn, St. Louis / Roger K.

Quillen, Fisher & Phillips, Atlanta / Colleen M. Regan, Seyfarth Shaw, Los Angeles / D. Michael Reilly, Lane Powell, Seattle / Theodore O. Rogers Jr., Sullivan & Cromwell, New York / Lawrence

J. Rosenfeld, Squire Patton Boggs, Phoenix / Jeremy A. Roth, Littler,

San Diego / Paul

Salvatore, Proskauer, New York / Terry E. Sanchez, Munger Tolles, Los

Angeles / Eugene

Scalia, Gibson Dunn, ”Washington, D.C.” / Jonathan A. Segal, Duane

Morris, Philadelphia / Samuel

S. Shaulson, Morgan Lewis, New York / Patrick W. Shea,

Paul Hastings, New York / Dawn

Siler-Nixon, FordHarrison, Tampa / Richard J. Simmons,

Sheppard Mullin, Los Angeles / Grace

E. Speights, Morgan Lewis, ”Washington, D.C.” / Ste-

ven W. Suflas, Ballard Spahr, Cherry Hill / Nigel F. Telman, Proskauer, Chicago / Joseph E. Tilson, Cozen O’Connor, Chicago / Joseph J. Torres, Winston & Strawn, Chicago / Allan Weitzman, Proskauer, Boca Raton / A. Martin Wickliff Jr., Cozen O’Connor, Houston / Kirby C. Wilcox, Paul Hastings, San Francisco / Robert M. Wolff, Littler, Cleveland / John F. Wymer III, Sherman & Howard, Atlanta

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LAWDRAGON 500 ISSUE 17 | WWW.LAWDRAGON.COM


PROVEN STRENGTH

2016 LAWDRAGON 500 LEADING LAWYERS IN AMERICA*

Congratulations to Godwin Bowman & Martinez Chairman and CEO, Donald E. Godwin on yet another selection to the Lawdragon 500 Leading Lawyers in America*. For more than 35 years, Donald Godwin and the law firm of Godwin Bowman & Martinez have effectively represented a broad range of clients, from Fortune 500 companies to individuals seeking exceptional trial and appellate representation. The legacy of our Firm has been founded upon the tremendous efforts of remarkable individual trial lawyers like Don Godwin. Strength, skill and a passionate commitment to his clients are all hallmarks of the excellence that Don Godwin has brought to the practice of law.

*The Lawdragon 500 and the Lawdragon 500 Leading Lawyers in America Guide is compiled and published by Lawdragon, Inc.

& GODWINLAW.COM | 214-939-4400 | DALLAS


TOP 20 IN EMPLOYEE BENEFITS

Gregory C. Braden, Morgan Lewis, ”Washington, D.C.” / Steven G. Eckhaus, McDermott Will, New York / Stephen

W. Fackler, Gibson Dunn, Palo Alto / Robert C. Fleder,

”Paul, Weiss”, New York / Gary

M. Ford, ”Groom Law Group, Chartered”, ”Washington, D.C.”

/ Thomas

S. Gigot, ”Groom Law Group, Chartered”, ”Washington, D.C.” / Paul M. Ham-

burger, Proskauer, ”Washington, D.C.” / Eric W. Hilfers, Cravath, New York / D. Ward Kallstrom, Seyfarth Shaw, San Francisco / John F. McGuiness, ”Groom Law Group, Chartered”, ”Washington, D.C.” / Robert

Newman, Covington & Burling, ”Washington, D.C.” /

Kevin O’Brien, Ivins Phillips, ”Washington, D.C.” / Paul J. Ondrasik Jr., Steptoe, ”Washington, D.C.” / Nicholas York / Myron / Richard

J. Pappas, Weil, New York / Andrea S. Rattner, Proskauer, New

D. Rumeld, Proskauer, New York / Howard Shapiro, Proskauer, New Orleans

C. Shea, Covington & Burling, ”Washington, D.C.” / Charles R. Smith, K&L

Gates, Pittsburgh / René

E. Thorne, Jackson Lewis, New Orleans

TOP 20 IN LABOR & EMPLOYMENT LAW

M.J. Asensio, BakerHostetler, Columbus / Robert P. Brooks, Adler Pollock & Sheehan, Providence / Howard E.

Cole, Lewis Roca Rothgerber, Las Vegas / Louis P. DiLorenzo,

Bond, New York / Angelo

J. Genova, Genova Burns, Newark / Clifford A. Godiner,

Thompson Coburn, St. Louis / Steven Colo.” / Michael / Terence

M. Gutierrez, Holland & Hart, ”Greenwood Village,

Lebowich, Proskauer, New York / Michael J. Lotito, Littler, San Francisco

McCourt, Greenberg Traurig, Boston / Steven R. McCown, Littler, Austin /

Neal D. Mollen, Paul Hastings, ”Washington, D.C.” / Theodore R. Opperwall, Kienbaum Opperwall Hardy & Pelton, Birmingham, Mich. / Bernard

M. Plum, Proskauer, New York /

W.V. Bernie Siebert, Sherman & Howard, Denver / Robert Siegel, O’Melveny, Los Angeles / Jonathan

Sulds, Greenberg Traurig, New York / Richard F. Vitarelli, Jackson Lewis, Hart-

ford / Stanley

Weiner, Jones Day, Cleveland / Jeff Weintraub, Fisher & Phillips, Memphis

TOP 20 IN IMMIGRATION LAW

Daryl Buffenstein, Fragomen, Atlanta / Bo Cooper, Fragomen, ”Washington, D.C.” / Matthew S. Dunn, Kramer Levin, New York / Carl Hampe, Fragomen, ”Washington, D.C.” / H. 30

Ronald Klasko, Klasko Immigration Law Partners, Philadelphia / Mark D. Koestler,

LAWDRAGON 500 ISSUE 17 | WWW.LAWDRAGON.COM


KA

Keller/Anderle LLP BUSINESS TRIAL LAWYERS


Kramer Levin, New York / Ira / Deborah

J. Kurzban, Kurzban Kurzban Weinger Tetzeli and Pratt, Miami

J. Notkin, Barst Mukamal & Kleiner, New York / Michael D. Patrick, Frago-

men, New York / Julie

Pearl, Pearl Law Group, San Francisco / Eleanor Pelta, Morgan Lewis,

”Washington, D.C.” / Thomas

Ragland, Clark Hill, ”Washington, D.C.” / Laura Foote Reiff,

Greenberg Traurig, ”Washington, D.C.” / Theodore

Ruthizer, Kramer Levin, New York / De-

nyse Sabagh, Duane Morris, ”Washington, D.C.” / Suzanne B. Seltzer, The Seltzer Firm, New York / William

A. Stock, Klasko Immigration Law Partners, Philadelphia / Marc Van

Der Hout, Van Der Hout Brigagliano, San Francisco / Bernard Wolfsdorf, Wolfsdorf, Santa Monica / Scott

W. Wright, Faegre Baker Daniels, Minneapolis

40 UP AND COMERS IN EMPLOYMENT

Eric Amdursky, O’Melveny, Menlo Park / John M. Bagyi, Bond, Albany / Reginald W. Belcher, Turner Padget, ”Columbia, S.C.” / Sarah E. Bouchard, Morgan Lewis, Philadelphia / Tristan Brown, Simpson Thacher, Palo Alto / Colleen L. Caden, Pryor Cashman, New York / Meredith

S. Campbell, Shulman Rogers, ”Potomac, Md.” / Julie M. Capell, Winston &

Strawn, Los Angeles / Terri Chicago / Adam

L. Chase, Jones Day, New York / Neil Dishman, Jackson Lewis,

S. Forman, Epstein Becker, ”Southfield, Mich.” / Avi Friedman, Wolfs-

dorf, Santa Monica / Robert

F. Friedman, Littler, Dallas / Jeremy Fudge, Berry Appleman

& Leiden, Dallas / Malcolm

A. Heinicke, Munger Tolles, San Francisco / Matthew Holt,

Hurwitz Holt, San Diego / Matthew

C. Kane, McGuireWoods, Los Angeles / Sameer Khe-

dekar, Pearl Law Group, San Francisco / David N. Levine, ”Groom Law Group, Chartered”, ”Washington, D.C.” / Fermin

H. Llaguno, Littler, ”Irvine, Calif.” / Lynden Melmed, Berry

Appleman & Leiden, ”Washington, D.C.” / Kevin

Miner, Fragomen, Atlanta / Cindy Schmitt

Minniti, Reed Smith, New York / Ian Morrison, Seyfarth Shaw, Chicago / Christy Nguyen, Pearl Law Group, San Francisco / Kristen Orrick, Menlo Park / John

A. Page, Shook, Kansas City / Jessica R. Perry,

C. Romeo, Gibbons, Philadelphia / Seth J. Safra, Proskauer,

”Washington, D.C.” / David

E. Schwartz, Skadden, New York / Jason C. Schwartz, Gib-

son Dunn, ”Washington, D.C.” / Brian

Sinclair, Rutan & Tucker, ”Costa Mesa, Calif.” / Grant

Sovern, Quarles & Brady, Madison / Sarah Peterson Stensrud, SPS Immigration, Minneapolis / Jonathan / Denise 32

Stoler, Sheppard Mullin, New York / Julie A. Totten, Orrick, Sacramento

L. Wheeler, FordHarrison, ”Fort Myers, Fla.” / Susan A.P. Woodhouse, Littler,

LAWDRAGON 500 ISSUE 17 | WWW.LAWDRAGON.COM


Congratulations.

Congratulations to Christopher Cox for being named to the 2016 Lawdragon 500 Leading Lawyers in America. We celebrate Chris’s commitment to his clients, to our firm and to the legal profession.

Cadwalader, Wickersham & Taft LLP www.cadwalader.com


San Francisco / Todd D.

Wozniak, Greenberg Traurig, Atlanta / Joshua Zuckerberg,

Pryor Cashman, New York

HALL OF FAME

Brian Clemow, Shipman & Goodwin, ”Hartford, Conn.” / W. Melvin Haas III, Constangy, ”Macon, Ga.” / Mark

A. Hutcheson, Davis Wright, Seattle / Charles C. Jackson, Morgan

Lewis, Chicago / Thomas Mich.” / Thomas

G. Kienbaum, Kienbaum Opperwall Hardy & Pelton, ”Birmingham,

Y. Mandler, Hinshaw, Chicago / Armin J. Moeller Jr., Balch & Bingham,

”Jackson, Miss.” / Angelo

Paparelli, Seyfarth, Los Angeles / James R. Redeker, Duane

Morris, Philadelphia / Jeremy of Fame / Jeff

Sherman, Seyfarth, Chicago / 2015 Inductees to the Hall

T. Appleman, Berry Appleman & Leiden, San Francisco / Lynne Deitch,

Duke, ”Durham, N.C.” / Zachary

D. Fasman, Proskauer, New York / Baruch A. Fellner,

Gibson Dunn, Washington / James

C. Franczek Jr., Franczek Radelet, Chicago / Willis J.

Goldsmith, Jones Day, New York / Hunter R. Hughes III, Rogers & Hardin, Atlanta / Stephen A. Ploscowe, Fox Rothschild, N.J. / Ronald H. Schechtman, Pryor Cashman, New York / Gary

R. Siniscalco, Orrick, San Francisco / 2014 Inductees to the Hall of Fame / L.

Robert Batterman, Proskauer, New York / Barbara B. Brown, Paul Hastings, Washington, D.C. / Francis

X. Dee, McElroy Deutsch, Morristown / Mark S. Dichter, Morgan Lewis,

Philadelphia / Charles C. Foster, Foster Quan, Houston / Howard York / William

Ganz, Proskauer, New

J. Kilberg, Gibson Dunn, Washington, D.C. / Demitrios M. Moschos,

Mirick O’Connell, Worchester / Stephen

A. Ploscowe, Fox Rothschild, Roseland / Michael

Reiss, Davis Wright, Seattle / Peter Wolfson Zinober, Greenberg Traurig, Tampa / 2013 Inductees to the Hall of Fame / R. Atlanta / Austin

Lawrence Ashe Jr., ”Parker, Hudson, Rainer & Dobbs”,

T. Fragomen, Fragomen, New York / Alan V. Friedman, Munger Tolles

& Olson, Los Angeles / Theodore

R. Groom, Groom Law Group, Washington, D.C. / Paul

Grossman, Paul Hastings, Los Angeles / C. Lash Harrison, FordHarrison, Atlanta / Garry C. Mathiason, Littler, San Francisco / Bettina B. Plevan, Proskauer, New York / Patrick L. Vaccaro, Jackson Lewis, ”White Plains, N.Y.” / Jay W. Waks, Kaye Scholer, New York

34

LAWDRAGON 500 ISSUE 17 | WWW.LAWDRAGON.COM


TRUSTED PARTNERS. GLOBAL PLACEMENTS. Lippman Jungers LLC is a global legal recruiting firm focusing on top tier partner and practice group placements and new office openings. Collectively, we have placed more than 500 partners and have opened more than 20 offices for law firms in new markets throughout the US, Europe, Asia and Latin America. We partner with firms and candidates nationally and globally. From offices in Los Angeles, Chicago, Milwaukee and New York, our domestic recruiting practice focuses on: California, Chicago and New York, as well as Washington DC, Texas, Miami, Charlotte, Phoenix and Atlanta.

LIPPMAN JUNGERS LLC

•

818.907.5700

•

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Travis Lenkner, Ashley Keller and Adam R. Gerchen GERCHEN KELLER (CHICAGO)

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2016

Rare are those who are called upon by lawyers for their expertise. It’s almost always the other way around. So we waited a good long while – eight years to be precise – to reprise our guide to those valued advisors whom lawyers call upon for their niche expertise. When we last highlighted those consultants whom lawyers most valued for their guidance, we found recruiters, marketing and management consultants and technology gurus aplenty in our guide that still stands as the leading resource for those lawyers trust most. A lot has happened since then. So in a bow to the numerous lawyers who depend on Lawdragon to highlight the best in the business, we asked thousands of lawyers and consultants who they most turn to now. Not surprisingly, third-party litigation funders top this year’s survey. They’re led by the Gerchen Keller juggernaut, which has blown past its international competitors to become the world’s largest funder, with platinum clients and matters to boot. They are joined by the career strategists who help firms mine lawyer gold, the bankers who keep them in the black, some visionaries rethinking how legal services are delivered, and a new crop of diversity consultants and others with an eye solidly on the legal future.

PHOTO BY: MICHELLE NOLAN

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THE LAWDRAGON 500


100 NAME

ORGANIZATION

LOCATION

CONTRIBUTION

Elonide Semmes

Right Hat

Chicago

Branding & Marketing

Spencer Baretz

Baretz Brunelle

New York

Communication

Cari Brunelle

Baretz Brunelle

New York

Communication

Burkey Belser

Greenfield Belser

Washington, D.C.

Communication

Donna Greenfield

Greenfield Belser

Washington, D.C.

Communication

Jamie Diaferia

Infinite Global

New York

Communication

Richard Levick

Levick

Washington, D.C.

Communication

Vivian Hood

Jaffe

Jacksonville, Fla.

Crisis Communication & Marketing

Terry Isner

Jaffe

Rehoboth Beach, Del.

Crisis Communication & Marketing

Kathy O’Brien

Jaffe

New York

Crisis Communication & Marketing

Marcia Horowitz

Rubenstein

New York

Crisis Communication & Marketing

Linda Bray Chanow

Center for Women in Law

Austin

Diversity

Marla Persky

DirectWomen

Philadelphia

Diversity

Kate Johnston Ryan

Diversity Lab

Boulder

Diversity

Caren Ulrich Stacy

Diversity Lab

Boulder

Diversity

Sandra Yamate

Institute for Inclusion in the Legal Profession

Chicago

Diversity

Sharon Jones

Jones Diversity

Chicago

Diversity

Nora Plesent

New Girls Network/Lexolution

Los Angeles

Diversity

Deborah Rhode

Stanford

Stanford

Diversity

Dov Seidman

LRN

New York

Ethics & Governance

Dan DiPietro

Citi Private Bank Law Firm Group

New York

Finance

Gretta Rusanow

Citi Private Bank Law Firm Group

New York

Finance

Mehrnaz Vahid

Citi Private Bank Law Firm Group

New York

Finance

Jeffrey Grossman

Wells Fargo Private Bank

Charlotte, N.C.

Finance

Stephanie Corey

UpLevelOps

Redwood City, Calif.

In-house legal services

Mark Beese

Leadership for Lawyers

Evergreen, Colo.

Leadership Skills

Stephen Cirami

Garden City Group

Lake Success, N.Y.

Legal Administration Services

John Sweeney

LogicForce

Nashville

Legal Entrepreneur - Technology

Mary O’Carroll

Google

Mountain View, Calif.

Legal Operations - Technology

Miriam Rivera

Ulu Ventures

Redwood City, Calif.

Legal Operations - Technology

Mark Britton

Avvo

Seattle

Legal Services Delivery

Dan Lear

Avvo

Seattle

Legal Services Delivery

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GERCHEN KELLER WITH ADAM GERCHEN, ASHLEY KELLER AND TRAVIS LENKNER

BY KATRINA DEWEY

THREE YEARS AGO, A TRIO OF

brilliant lawyers with impeccable credentials decided to change the economics of litigation. Sound farfetched? Think again.

Gerchen Keller Capital has raised more than $1.4 billion in funding and committed more than $900 million in 80 investments, ranging from accelerating law firm receivables at year-end, to $55 million for Quinn Emanuel’s $25 billion Mastercard claim in the UK, to $26 million for a bankruptcy estate. That rare air makes the firm the world’s largest litigation funder – and they’re just getting started. The need for litigation funding is undeniable – plaintiffs’ lawyers have funded their own cases for years, and as the cases have gotten bigger, the most successful plaintiffs’ lawyers have funded the smaller ones. On the defense side, the scale of litigation has become an arms race. Yet with a handful of exceptions, the industry has remained at the edges of most attorneys’ awareness and acceptance. Led by Adam Gerchen, a Harvard Law School graduate and former Goldman Sachs banker and Alyeska portfolio manager; Ashley Keller, a former Bartlit Beck partner; and Travis Lenkner, who brought inhouse experience from Boeing as well as time with Gibson Dunn, the Gerchen Keller team seems unbeatable. Keller and Lenkner met while clerking for U.S. Supreme Court Justice Anthony Kennedy, and Gerchen and Keller met at Alyeska. We sat down to talk with them in Chicago recently, discussing what Gerchen Keller brings to the litigation funding arena, as well as their rocket trajectory. Lawdragon: Where did you get the idea to start Gerchen Keller? Adam Gerchen: At Alyeska, I was doing what’s called risk arbitrage, which is looking at announced mergers and acquisitions and investing in the outcomes. By far the largest component of that analysis is legal, looking at antitrust and regulatory approvals. And Ashley was analyzing other investments in public markets that were influenced by legal developments. Together, we saw an opportunity to apply legal analy-

PHOTO BY: XXXX XXXXX

sis in the most efficient possible manner, which is to invest directly, where we know the investment we’re making and the risk associated with that investment. Ashley Keller: Our goal was to try to thoughtfully institutionalize the litigation finance space by bringing in best practices and expanding the type and quality of counterparty, being helpful in a variety of ways outside. To us, it’s about treating a legal claim as an asset, and all the creative things either on the corporate finance side or the risk-management side that you can do with that asset. Travis Lenkner: We saw the opportunity to bring finance principles and capital to a profession and an industry that is under-banked and under-served by those principles. Law is one of the last industries that hasn’t had traditional finance applied to it. Given our backgrounds, we thought there was real demand, in a time when the cost of litigation is growing and legal budgets are being cut. AG: If you think about our team on the law-to-finance spectrum, Travis is on one end having principally practiced law, and I’m on the other, having never practiced law and always been in finance. And Ashley bridges the two. LD: Your focus on building a team with exquisite backgrounds top to bottom strikes me as a critical edge from attracting the best cases to the best investors. TL: Our intent from the beginning has been to be viewed as best in class and not just a commoditized source of capital. Frankly, given the sensitivities, a Gibson Dunn attorney is not going to consider working with a litigation finance provider that doesn’t speak the same language, understand the unique client concerns that come in working with a firm of that caliber, and who can’t come in, sit at the table, and be a productive member of that team. AG: Law firms know they can introduce us to sensitive client relationships and that we will approach all aspects - from the initial intake through potential documentation and then post-investment - in a professional manner that’s reflected in the brand we’ve built in the marketplace.

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TL: We do all our underwriting in-house, which has been true from day one. If we consummate an investment, two years later, we’ve been following the case the entire time. We understand it and have productive, strategic conversations throughout with the law firm and the client. LD: Is there such a thing as your ideal client or case to invest in? TL: Our goal from inception was to expand the market for litigation finance, and to explain to law firms serving larger companies that there are many situations where the fact that you could pay for something doesn’t mean that you should, or necessarily that you want to. AG: Think of it this way: At Boeing, when you’re building a new manufacturing plant, you have cash on your balance sheet but you still choose to use external financing in a variety of forms because that’s just a more efficient use, as general corporate finance theory would tell you, of someone else’s balance sheet. AK: Unlike Boeing - which has a wide range of options for how it’s going to utilize other people’s balance sheet to optimally put its own dollars to work - law firms operate under constraints that don’t apply to any other businesses. Law firm partnerships have a very healthy and natural risk aversion to taking or sharing risk with their clients because it’s always the partners’ money on the line. They have to put up their houses, cars, and other assets as collateral to finance the firm. You’re not going to take the same approach to risk when the only balance sheet that you can look to is your own. As specialists who focus only on evaluating legal and regulatory risk, we can expand the risk appetite and try and help them solve the problem that they’ve been talking about for decades. LD: Can you talk a little about some of your early investments and how they were instructive in building the business? Any course corrections you made or opportunities you saw and implemented?

court of appeals, but was waiting because the defendant had said it would file a cert petition in the U.S. Supreme Court. In the meantime, our counterparty, the plaintiff, had an acquisition opportunity and wanted to use the proceeds of this judgment, about which there was still some uncertainty, to pay some of the acquisition cost. Even in the best-case scenario, the judgment wasn’t going to be paid for six months, until the Supreme Court process ran its course. At closing, we provided $5 million. It had nothing to do with the attorneys’ fees, nothing to do with the cost of litigation. The plaintiff company used that $5 million as part of a package of money they put together to make a purchase. We’re now at more than 80 investments consummated across all our funds and more than $900 million of commitments to litigation investments, inception to date. LD: The growth’s extraordinary. You must be really proud of that. AG: We’ve remained nimble and flexible and, in terms of getting here growth-wise, we’ve been open to the needs of our counterparties; if we don’t have a pool of capital or don’t have a product that specifically addresses what they’re trying to solve for, we can create that product. TL: For example, when we launched, we didn’t have a dedicated pool of capital that could make laterstage, lower-risk investments, because our investors then were looking for the higher-risk, higher-reward, earlier-stage litigation investments. We realized that people were looking for a specialized capital provider and not finding one. And so we announced in 2014 that we had raised a $500 million fund dedicated to those kinds of opportunities. LD: Is IP a strong area for investment, or less so because of the changes in the law? AK: The demand for our products in the IP space is dramatically higher than it was a couple of years ago because the need for a risk partner is so acute in this environment.

For example, one involved a company that had a federal court judgment in hand, had survived the

TL: The more risk involved in a particular area - or frankly, the more risk people perceive in a particular area - the more they will seek to offload or to share that risk with specialists who are interesting in warehousing it. Of our many competitive advantages as compared to other firms, we are the only firm that has built such an experienced team to look specifically at IP opportunities.

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TL: If you look at our first dozen investments, about half were with or on behalf of Fortune 500 companies. Some were early stage, the complaint had just been filed, and we were paying fees and costs associated with litigation. Some were much more developed.

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If you look at the background of Gerchen Keller’s IP team, we are the leading finance group in the world, and certainly in the U.S., for IP litigation investing, full stop, bar none.

LD: What’s most gratifying about what you’ve achieved thus far? Is it changing the economics of litigation? Is it building an interesting and smart team?

LD: Should a law firm chair or head of litigation be calling you and saying, “I think I should come in and talk to you about our cases?”

AK: For me, part of the allure was the marriage of the best parts of finance and law. I loved clerking. One of the greatest experiences of my life was thinking deeply about legal questions. Transitioning into the day-to-day practice of law, I got about 10 or 20 percent of that satisfaction and 90 or 80 percent of discovery work, which is necessary and important and keeps the machinery of litigation running, but was not fulfilling.

AK: Yes. We’ll come to you. TL: We are presenting to litigation groups, going to law firm retreats, and sitting down with executive committees, practice group leaders and a range of partners and non-lawyer COOs, CFOs, Executive Directors and pricing directors – all the new professionals who are critical to the operation of a large law firm who do not come from a legal background. Anyone who hasn’t had that conversation with us should absolutely call to say, “What is the menu of offerings? How does it work? How do I educate my team and my firm so that when we see an opportunity we’re not trying to establish a relationship and figure out how it works for the first time?” LD: Can you talk a bit about the potential litigation finance has to change the economics of litigation for law firms? TL: Just think about alternative fees and contingentfee work. In many large firms, leverage only means “how many bodies can we put on this litigation. Let’s strap 100 associates to this thing and ride it as long as we possibly can.” And firms are skeptical about taking a completely contingent, risky position and making an investment in a case that might or might not pan out. We can calibrate that. It is possible to provide contingent economics, so the client receives what it wants, but we, for example, monetize 50 percent of fees every month for the firm. In that example, the firm is dramatically reducing the risk of a contingent fee. The firm is able to market itself more aggressively - not completely shift away from the billable-hour model, but also use the labor force that it has to create this contingent uplift instead of just the normal premium that a firm would negotiate. They can use the same number of bodies they already have to think about the fee picture differently and more aggressively, and frankly to be part of the chorus that is proposing contingent fees to their corporate clients more frequently. Those economics are very attractive to large and small companies alike.

PHOTO BY: XXXX XXXXX

I’ve always had an appreciation for finance. I’m a very Chicago School type person and believe in efficient markets, that capital should go into its highest and best use, that industry should adapt modern finance principles. That has largely held true for everybody except for the legal profession, which seems to be stuck in the ‘70s from a corporate finance perspective. The opportunity to use the legal brain, think deeply about legal questions, to add value, while simultaneously thinking about finance and how we’re, as you said, transforming an industry and bringing the tools of modern corporate finance to them, is really attractive. AG: For me, there’s obviously excitement to building a business. It is gratifying to be partnered with these two guys and for the rest of the team we’ve built and the value-add that they’ve given us, scaling the business the way we’ve scaled it. It’s rare that you can be disruptive to an industry, but in a positive way. It just seems like there’s so much low-hanging fruit for us to be helpful to companies and law firms that is exciting and powerful. TL: In particular, I enjoy the marriage of the substantive and strategic legal analysis that was the fun part of practicing law. The other fun part for me of practicing law was being interested in the business of law and of the law firm. We are at the table for high-level, strategic discussions with leaders in our field about how they manage their global firms and the direction of this profession from a finance perspective. That is exciting and satisfying for someone who was as much or more interested in how the law firm worked than in doing the work of the law firm.

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LYNN MESTEL

BY JOHN RYAN

THE STAKES ARE HIGH WHEN IT COMES

to an individual attorney’s career and law firm mergers. That is why it’s not surprising that so many in the legal space turn to Lynn Mestel. In 1987, Lynn founded Mestel & Company, one of the nation’s premier legal recruiting and placement firms, and in 1993, she founded Hire Counsel, providing temporary legal staffing, managed review and legal support services for law firms, corporate legal departments and government agencies. The success of both Mestel & Company and Hire Counsel is firmly rooted in her team’s track record in the success of many attorneys’ careers and providing enduring services and solutions for clients across the United States. “What’s most rewarding for me is knowing that both our candidate and client mesh well, and are better and stronger together,” Mestel, who has a J.D. from the Benjamin N. Cardozo School of Law, says. “It’s not good enough just knowing that an attorney candidate was placed into another company. I want to know that it was the right decision for both parties over the long-term.” Lawdragon: What was your career plan at Cardozo? Lynn Mestel: When I attended Cardozo, I thought I wanted to become a practicing attorney. Unfortunately, it became clear to me as a 2L that I would have virtually no option to join a law firm due to market conditions. I decided nonetheless to finish law school and get my degree as a legal education would always be beneficial in any profession. LD: What was your early career path like that led you into recruiting and starting your own company? LM: After my law school graduation, I became a marketing executive for two of the leading advertising agencies, Doyle Dane Bernbach and Saatchi & Saatchi, working for major global clients such as Cigna and Procter & Gamble. Through these unique experiences, I gained a strong understanding of business, marketing, branding and operations. While there was potential for a very interesting career working in large corporations, my personal circumstances as well as my own ambitions pointed me toward establishing my own business in 1987. When I look back, I am still very glad I worked in advertising because it has made me a better businesswoman as did having a legal education.

PHOTO LAW XXXX D R AXXXXX GON 500 ISSUE 17 | WWW.LAWDRAGON.COM 42 BY:

LD: This is a huge question, but if you can take a shot: What are some of the biggest changes you’ve seen on your side of the legal profession over the past nearly 30 years? Do a few big themes really jump out? LM: The legal industry had one of the longest growth phases of any professional business, which was fueled by Wall Street and globalization. For over 20 years, revenues, rates and profits increased and many lawyers have had the great fortune of becoming partners during this period. It was also during this time that law firms expanded both their geographic footprint and professional ranks to service the everincreasing and widening demand of clients. The biggest changes that affected this growth period were twofold: One, the 2008 recession and the subsequent, dramatic decrease in legal work and, two, the advancement and refinement of technology and legal software. These two factors reduced the need for lawyers and changed how legal services are delivered today. Clients quickly understood how these changes made their legal business needs highly coveted and adapted by putting enormous demands for the commoditization of legal work and capping of fees.


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Today, many wise leaders are trying to come up with a solution for the proper structure, size and composition of a law firm and the smartest, most efficient and profitable way to service clients. The single most unanswered question today is: What is the future of law firms of every size, and what will the practice of law look like in the year 2020? This is an especially difficult question to answer for an industry that has developed so much during a long period of unprecedented, continuous growth. LD: What does it take to succeed in your role? LM: To be a successful attorney placement consultant, you need a combination of intelligence, effort, experience and sensitivity to every attorney’s career trajectory, and that’s what I look for in professionals. Success in this business depends on one’s ability to forge strong relationships with clients and candidates, and earn their trust. As I have expanded the business, I think what is also important is for every member of our team to be able to embrace and adapt to change. This is necessary to continually make improvements in our technology and processes in order to remain competitive and provide the best service to our clients and candidates. LD: What mistakes do you see lawyers make? LM: Sometimes, lawyers make impulsive career decisions without considering all of the important factors or they overthink the move and miss obvious red flags or they overpromise what they can deliver.A common mistake with acquisitions is not putting into place an

JOHN SWEENEY

effective integration plan for all of the new members. This is especially true for very large groups who have strong prior relationships, which makes assimilation into the new organization even more challenging. LD: Why did you start start Hire Counsel? LM: I established Hire Counsel, seven years after Mestel & Company, because there was a dramatic change in litigation from paper to eDiscovery. This triggered the demand for temporary lawyers who were flexible, reliable and cost effective. The growth of Hire Counsel is a reflection of the metamorphosis of the legal industry. Our stated mission is “Serving Today’s New Legal Economy,” and that’s what we do – we create and customize staffing and managed review solutions to address our client’s dynamic, demanding, and ever-changing needs. My days are long and hectic, and as any Founder & CEO would, I am always thinking about problems and how things can be done better. However, the only way anyone can establish true success in business is through their team of leaders and advisers. I’m grateful for having a dedicated, collaborative team that does whatever it takes to grow both businesses. I am very proud to say that many members of both Hire Counsel and Mestel & Company have decades of tenure and yet we have brought on and integrated many new members who continue to allow us to learn and grow. Both Hire Counsel and Mestel & Company work together to support our candidates and provide winning results to our clients.

BY JOHN RYAN

THE ROLE OF TECHNOLOGY WITHIN A

law firm’s operations has never more been more important, or more challenging, with competition between firms and data-security threats at all-time highs. To take their businesses to the next level – not to mention for peace of mind – many firms turn to John Sweeney, President of Logicforce, where the company motto says it all: “Giving law firms a distinct competitive advantage through our New Style Legal IT.” Sweeney and his team help firms optimize their IT operations while providing eDiscovery, document review, cybersecurity and data analytics services. It’s a passion for Sweeney, who

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100 NAME

ORGANIZATION

LOCATION

CONTRIBUTION

Mark Harris

Axiom

San Francisco

Legal Services Delivery

Gerald Abila

Barefoot Law

Kampala, Uganda

Legal Services Delivery

Vivek Maru

Namati

Washington, D.C.

Legal Services Delivery

Jeff Carr

Valorem Law Group

Chicago

Legal Services Delivery

Michelle Crosby

WeVorce

Boise, Idaho

Legal Services Delivery

Allison Chock

Bentham

Los Angeles

Litigation Funding

Charlie Gollow

Bentham

Perth, Australia

Litigation Funding

Ralph Sutton

Bentham

New York

Litigation Funding

Christopher Bogart

Burford

New York

Litigation Funding

Jonathan Molot

Burford

New York

Litigation Funding

Adam Gerchen

Gerchen Keller

Chicago

Litigation Funding

Ashley Keller

Gerchen Keller

Chicago

Litigation Funding

Travis Lenkner

Gerchen Keller

Chicago

Litigation Funding

Jim Kearney

Lake Whillans

New York

Litigation Funding

Bruce MacEwen

Adam Smith

New York

Management

Tom Clay

Altman Weil

Newtown Square, Pa.

Management

Timothy Corcoran

Corcoran Consulting

Lawrenceville, N.J.

Management

Ron Friedmann

Fireman & Company

Washington, D.C.

Management

Tony Williams

Jomati Consultants

London, UK

Management

Larry Richard

LawyerBrain

Wayne, Pa.

Management

Suhrid Gajendragadkar

McKinsey

Washington, D.C.

Management

John Remsen

The Remsen Group

Atlanta

Management

Norm Rubenstein

Zeughauser Group

Washington, D.C.

Management

Mary K. Young

Zeughauser Group

Cabin John, Md.

Management

Peter Zeughauser

Zeughauser Group

Newport Beach, Calif.

Management

Kent Zimmerman

Zeughauser Group

Chicago

Management

Ward Bower

Altman Weil

Newtown Square, Pa.

Management - RIP*

Mike Androvett

Androvett Legal Media and Marketing

Dallas

Marketing

Scott Parks

Androvett Legal Media and Marketing

Dallas

Marketing

Pat Rafferty

Androvett Legal Media and Marketing

Dallas

Marketing

Anne Bothwell

Bothwell Marketing

Sonoma, CA

Marketing

Ross Fishman

Fishman Marketing

Highland Park, Ill.

Marketing

Sally Schmidt

Schmidt Marketing

Edina, Minn.

Marketing

44

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stays ahead of the curve on technology issues so that his clients do, as well.

while still providing the personalized service and subject matter expertise their reputations are built on.

Lawdragon: Can you discuss how you got into the legal profession on the business consulting side?

LD: Can you discuss the mix of firms LogicForce tends to work with?

John Sweeney: I was introduced to the legal business when conducting an enterprise consulting engagement for DuPont. I lead a team of consultants to assess the people, process and technology the company used to deliver document-related services around the world. After three months of analyzing the data it became very clear the economics no longer made sense for DuPont to provide these services internally and they needed to explore alternative means to improve efficiencies with a lower total cost of ownership. We made the recommendation to sell off several of their internal businesses that were delivering these services and outsource anything related to document services they needed.

JS: LogicForce has amassed a significant law firm clientele over the last 21 years of being in business. We currently provide services to top 50 law firms, super regional firms and boutique firms. Our primary focus is on mid-size law firms that have litigation practices in a 13-state area encompassing the Southeast, Midwest and Southwest. However, we do have clients in Washington, D.C., New York, Los Angeles and San Francisco.

My company eventually bought what was once DuPont’s legal support operations business and I was on the team responsible for the integration into the company. This initiative allowed me to work with the DuPont legal teams and their outside law firms. As my relationships grew so did my opportunities to consult and provide analytical expertise to the business problems they face every day. LD: What are a few things you find satisfying about working with lawyers and law firms – what is unique about working with this population? JS: I have worked on law firm projects varying from law practice acquisition to organization restructuring and business development strategy for attorneys. What makes it interesting is every firm has its own distinct culture which greatly impacts their view of the legal market and the best way to remain competitive. I get great satisfaction having those types of conversations with firm leadership and providing them with empirical evidence I’ve gathered to make the best business decisions possible. It’s gratifying to see ideas come together that are acted upon and improve the firm’s business performance. My most rewarding projects lately involve helping mid-size law firms structure their business model to effectively use IT to compete and win against Big Law. In this day and age, it’s pretty rare to find stories of the little guy or gal going up against a big competitor and actually winning – especially in law. However, that is possible today primarily because emerging technologies can enable mid-size firms to quickly scale to greater capacities when needed

LD: Can you explain a bit about how technology and business-related services have evolved over the years as they relate to legal? JS: Artificial Intelligence, Big Data, the cloud, mobility, cybersecurity and eDiscovery have had a dramatic impact on law firm’s ability to compete for their corporate client’s wallet share. Firms can no longer unilaterally raise their rates every year and expect to keep their clients because technology has become a great equalizer. More now than ever before mid-size law firms can affordably acquire the technological capacity to target clients, collaborate and take business away from Big Law. So regardless of the size of a law firm they all must modernize IT if they hope to unleash the productivity necessary to keep their fees in line while providing the legal subject matter expertise their lawyers are paid for delivering. It is interesting to note that in 100 percent of the projects where I have conducted enterprise IT, cybersecurity and eDiscovery assessments over the last five years, every law firm would benefit from moving away from strictly relying on their in-house service delivery capabilities to a model that offers a set of services and technology paid for on a monthly subscription basis. The smart firms are starting to do this today because the model is scalable, allowing them to keep technology operational costs low in a secure environment while freeing up funds to reinvest in growth initiatives. LD: Over your career, is there one area more than any other that you have consistently seen as interfering with law firm profitability, or interfering with the successful management of litigation? JS: Great question! Moving to a true profitability model is harder than it sounds for law firms. Many Managing Partners will tell you it is more “art than

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100 science.” The simple fact that there are three different revenue numbers a law firm can use as a measurement is only one of the issues: hours worked times hourly rate; bills rendered; and cash receipts. Determining actual costs is even harder when you consider support cost allocations and other overhead expenses. Most firms talk about cost-based project management as the way to profitability but very few have the technology or resources to implement a program that accurately captures all of the financial elements that go into delivering their services. In the end the client gets billed and argues with the law firm’s relationship partner about the fees making it difficult for both parties to come to a mutually desired outcome. This scenario often results in billing write-offs, other concessions and non-accrued time. Basically a lose-lose scenario. LD: If you can, please talk about why you developed the “Synthesis E-IT” analysis for law firms. How you came to develop it? And how it’s used by law firms? JS: I want to first state that every law firm who has underwent Synthesis E-IT has measurably profited on a short and long-term basis. Big data, the cloud, mobility, cybersecurity and eDiscovery are changing the way information moves across organizations and when leveraged correctly, can give a law firm significant competitive advantage. Every interaction between law firms and their corporate clients should be quick and responsive, whether it’s late at night, on the weekend or during rush hour on Monday. Every decision and piece of advice provided by outside counsel is now expected to be data driven much in the same way corporations evaluate data and make their business decisions. So I developed Synthesis E-IT in response to several requests from law firm managing partners and COO’s who were struggling with developing the right business model to deliver these capabilities to their lawyers and their corporate clients. Synthesis E-IT is a proprietary methodology and tool set designed to provide law firms with analysis of the functionality and return on investment of their IT, document management, cybersecurity and eDiscovery ecosystem. It is non-intrusive and involves a combination of process analysis, technology diagnostics, data gathering and functional interviews conducted by a highly trained team of experts. Clients receive a detailed report outlining their current state of operations and a scalable blueprint to transform their business into a lean, agile, customer-driven

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machine that improves lawyer productivity and firm profitability through a “New Style of IT” that resolves the limitations of current legacy systems and obsolescent applications. Smart law firms use it to gain competitive advantage, collaborate more efficiently and gain the ability to quickly scale to meet the demands of any size matter or project that may arise. LD: It’s hard to turn on the news these days without seeing a troubling story on cybersecurity. Where are law firms in terms of dealing effectively with this threat? If there were a few critical pieces of advice you would give a firm what would they be? JS: The legal and ethical obligations of law firms to protect client data are very well documented. A variety of federal laws like Health Insurance Portability Act “HIPAA” and Fair and Accurate Credit Transactions Act “FACTA” clearly obligate lawyers to protect certain types of data in their possession. States have also imposed obligations on law firms and businesses to protect personally identifiable information “PII” including driver’s license and social security numbers. Failure to do so can result in civil action, suits and penalties. Lawyers are also tasked with complying with their ethical duties as spelled out in the ABA Model Rules of Professional Conduct 1.1 and 1.6. Any violation may result in a malpractice lawsuit and potential disciplinary action. To compound matters almost every law firm today goes through a myriad of IT security audits per the demand of their corporate and government clients. Failure to meet client’s requirements may result in a significant cost outlay to bring the firm’s infrastructure into compliance or worst case, loss of business. This is particularly true of firms who work in the financial and healthcare industries. LD: Can you lay out for us what you think that firms should do to comply with these demands and regulations? JS: I recommend that firms pursue either an internal examination or external independent audit that looks at the following areas of information security. While this list doesn’t delve into great detail, it is a good first step to making security-conscious decisions and laying the groundwork for a holistic approach to security. 1. The cloud. Law firms should use cloud providers that can reasonably protect and provide assurances on overall data security.


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2. Email Security. Law firms need to consider using email encryption. 3. Bring Your Own Device or “BYOD.” Best practice is to have a clearly written BYOD policy regulating usage with the law firm having ultimate control over all devices. 4. All portable devices (phones, tables, laptops, media, etc.) are subject to loss or theft. Encrypting them not only makes sense, but with today’s technology this is a very easy step to accomplish in mitigating the risk to critical firm or client data. 5. Password Policy. All firms should have a policy that mandates passwords are changed at certain intervals throughout the year. 6. Everyone in the firm should understand the ethical and professional responsibilities they have to ensure the data in their possession is protected. General counsel should clearly articulate the data governance and IT security policies of the firm as well as the expectations for compliance. 7. Wireless access points should be considered untrusted devices. The ability to exploit laptops that are utilizing “public” Wi-Fi does not require any skill. Mobile employees should be equipped with company or personal hotspots to protect company assets. 8. Cyber Errors and Omissions Insurance Policy. Every Law Firm should have Cyber E&O coverage. The very survival of the business may depend on it! Data breach is a very real threat and has become an ever growing concern to managing partners and CIOs of law firms around the world, regardless of size or practice areas. Complicating matters are law firm clients who are becoming increasingly more sophisticated about data security requirements and demanding their lawyers and their firms have systems in place to ensure compliance. Failure to protect client data by a law firm can result in disastrous monetary and reputational consequences. Therefore, instituting a comprehensive data security program at the enterprise level of every firm has become a necessary cost of doing business. LD: How do you make sure you are in a position to provide critical advice to law firms on their business and their technology? JS: I really like what I do for a living. I get to meet smart people at law firms and corporate legal departments, investigate the latest technologies at innovative companies and learn from legal policy

makers about where our laws are headed. The fun part is synthesizing all of that information and developing strategies that will benefit my clients and their respective businesses. An average day for me starts at 6 a.m. when I read certain news feeds, trade publications and email. After that it’s strictly business most days. I try to assess at least three-to-five software applications and or legal services a week. I’ll speak at some conferences and attend a few others but most of my time is spent with my teams of experts and clients. I think the best way to remain relevant is by doing. I think my clients and staff know that about me. In the end if my client isn’t winning then neither am I. LD: How do you see your own business evolving? Do you expect to provide new services or a greater portion of time in one particular area? JS: I wear two hats at LogicForce, President and Consultant. So as far as my practice is concerned, I will still consult with managing partners, COO’s and litigation chairs on strategies to effectively address the critical business issues facing them today. The use of IT and data analytics will have an increasingly direct correlation to revenue growth of law firms and will continue to be a focus area of mine for the foreseeable future. More and more I see law firm leadership acknowledging the need to move from their traditional business models to a more modern approach. It’s my job to help them get there. LogicForce’s New Style of IT will revolutionize the way law firms use and pay for their IT and eDiscovery ecosystem while unleashing the capabilities it affords to gain competitive advantage. Most law firms have built their IT and eDiscovery capabilities over time with little coordination between the two. When conducting a Synthesis E-IT analysis at law firms to which I referred earlier, I usually find a mixture of hardware and software technologies with little integration, upgrade or financial discipline. Their approach to cybersecurity has been pretty much an afterthought until recent highly publicized data breaches became a focal topic of the media. I know of no other company with the legal industry expertise that can analyze, implement and oversee all IT functions, cybersecurity and eDiscovery under one roof. When you package these services in a subscription based financial model and analyze the return on investment, working with LogicForce makes good business sense.

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MARCIA HOROWITZ

BY JOHN RYAN

MARCIA HOROWITZ SAYS SHE HAS

“always liked working with lawyers,” and it shows. The Rubenstein managing director was on the shortest of shortlists when Lawdragon researched its guide to top consultants and inquired about trusted advisors for media placement and crisis communications. Experience counts, and Horowitz has a wealth of it now that she is more than 30 years into her tenure at Rubenstein, which began helping lawyers with media matters before law firms had PR or communications departments. “When one looks at the breaking news of the day, there is almost always a legal angle,” Horowitz says. “So lawyers are often directly or tangentially involved in all of the biggest stories as they break, and this keeps my professional life interesting and moving, often at high speed, every day.” Lawdragon: Can you talk about how you got into PR work, and when you started having at least a partial focus on law firms? When did that start – when enough firms really started looking for outside help with PR and crisis communications? Marcia Horowitz: I have a Masters in Journalism from Boston University and started my career working in the Mayor’s press office. It was there that I met Howard Rubenstein, who hired me as an account executive. I have been working for Rubenstein now for more than 30 years. We were certainly one of the first public relations firms to represent a law firm. Today, our law firm and crisis and reputation management practices dovetail well. We understand the first edict is to do no harm. Much of our crisis practice involves clients involved in lawsuits and we have vital experience in understanding court proceedings and what is appropriate to say or not to say. LD: As one of the most esteemed and experienced experts in marketing for lawyers and firms, what are the biggest changes you’ve seen during your career? MH: I have seen a sea change in the way law firms view public relations and marketing. When we first represented law firms, there were no public relations or marketing professionals in-house. We dealt directly with lawyers. Our first mandate, which has not truly changed fundamentally, was to have lawyers

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quoted on key issues of the day and to garner media coverage of big legal “wins.” This presented a huge learning curve for many attorneys. Law firms viewed themselves as professions, not businesses. Lawyers often found it unseemly to lower their standards by speaking to a reporter and saying anything but “no comment.” Obviously, the Internet turned everything on its head again. We now regularly speak to lawyers about everything from Twitter and LinkedIn to paid content. For that reason, the thrust of our work is constantly changing as online media evolves daily. A negative article can get lost in a day in the tumult of the Internet or it can seemingly last forever, prominently appearing in every Google search of the individual or the firm. Especially for our crisis clients, the exclusive we would give to, say, the Wall Street Journal or another high-profile outlet has sometimes been replaced by breaking the news on Twitter. Another dilemma these days is dealing with the continuing erosion in the number of news outlets and journalists. I think one of the biggest challenges is forming concise strategic messages that define


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our clients in a straightforward way and finding new and better ways to get heard in the crowd. LD: Do you remember the first lawyer or firm you represented and can you talk a bit about the engagement? MH: My first client was Weil Gotshal. My first placement was an op-ed in the Business Forum section of the Sunday New York Times. Harvey Miller wrote the piece, suggesting that fi ling for Chapter 11 actually had some benefits. That began the era of the reprint. LD: Your organization, Rubenstein, is widely regarded as the go-to specialists for marketing of all types, including crisis communications. Do you have three tips that all lawyers could benefit from? MH: In terms of reputation management, law firms facing a crisis themselves should do three things: First, focus on the right thing to do rather than on the right thing to say. Next, always tell the truth. You’ve heard it before: often it is the cover-up, not the crime, that causes the most problems. Third, be brief. This may sound elementary, but media statements should ideally be no more than three sentences. Giving the media a long document written in legalese gives a reporter the opportunity to cut the statement to pieces and to pick and choose what to use. LD: What are the biggest mistakes, generally, you see lawyers making in the media? MH: The biggest mistakes are saying too much, or saying too little. Reporters are looking for opinions and they need content that is interesting and thoughtprovoking. The competition with other law firms can be fierce, so saying something with substance will increase your chances to get mentioned. Of course we all agree not to cross the line by saying anything that might upset an audience important to them. It is simply not worth it. LD: Can you share a recent client experience – even if in veiled terms – that you believe was successful and highlights a particular key lesson in dealing with the media? MH: As a team, one of our greatest values is in being involved in the decision-making of whether to settle a matter or endure the pain and expense of pursuing it in court. Linked to this is whether to comment in the media and what that comment looks like. In every instance

these decisions are made in concert with leadership and counsel as well as others who have a particular understanding of the issue. The pendulum on the “no comment” solution has swung both ways. It has gone lately from “you look guilty if you say no comment” to “whatever else you say can and will be held against you.” LD: Is there an engagement in your career that really stands out, either for the intensity of the experience or the novelty of what was being dealt with? MH: I once had a client, a high-profile lawyer, who had not disclosed all his conflicts to a client he was representing. It was a remarkable lapse in judgment, and the New York Times decided to delve into the particulars of the case in a big story – complete with a big picture of the lawyer – on the front page of the business section. We worked hard to soften the blow of that article. To my amazement, for years thereafter, our legal clients said they wanted us to get them a profile in the Times just like that one. LD: At what point should lawyers start learning marketing and outside-the-courtroom communication skills? MH: Everyone can benefit from fine-tuning their communications and presentation skills. We regularly do media training for lawyers interested in enhancing their reputations through the press. But it won’t work without buy-in from the attorney. Getting quoted these days is more and more of an art. Sound bites are contrary to legal training but getting closer to it makes a big difference. LD: It’s been an interesting era for law schools. Can you discuss any work in this field and what type of assistance they tend to need? MH: We represent two law schools. They face the scourge of lists and rankings, and the challenge of distinguishing themselves from other schools. For these clients, exposure in the media that is seen by prospective students, academics and donors remains top of mind. Because law schools have no client conflicts, we often offer commentary from professors who are unencumbered in expressing their point of view. I do think the right kind of media exposure, and a lot of it, is particularly helpful for law schools who appreciate the value of a steady drumbeat of mentions.

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100 NAME

ORGANIZATION

LOCATION

CONTRIBUTION

Deborah McMurray

Content Pilot

Dallas

Marketing & Communication

Keith Wewe

Content Pilot

Dallas

Marketing & Communication

Burton Taylor

Proventus

Mission, Kan.

Marketing & Communication

Lloyd Pearson

393 Communications

Brighton, UK

Media - Directory Maven

Dawn Schneider

Schneider Group Media

New York

Media & Communication

V. David Zvenyach

18F

Washington, D.C.

Open Law - Technology

Jacob Heller

Casetext

San Francisco

Open Law - Technology

Tanina Rostain

Georgetown

Washington, D.C.

Open Law - Technology

Susan Crawford

Harvard

Cambridge

Open Law - technology

Jonathan Zitrain

Harvard

Cambridge

Open Law - Technology

Daniel Lewis

Ravel Law

Nicasio, Calif.

Open Law - Technology

Nik Reed

Ravel Law

Nicasio, Calif.

Open Law - Technology

Ann Lee Gibson

Ann Lee Gibson Consulting

West Plains, Mo.

Professional Recruiters

Scott Atlas

Atlas Counsel Search

Houston

Professional Recruiters

Kay Hoppe

Credentia

Chicago

Professional Recruiters

Janet Downie

Johnson/Downie

Houston

Professional Recruiters

Clint Johnson

Johnson/Downie

Houston

Professional Recruiters

Sabina Lippman

Lippman Jungers

Los Angeles

Professional Recruiters

Sharon Mahn

Mahn Consulting

New York

Professional Recruiters

Amanda Brady

Major, Lindsey & Africa

New York

Professional Recruiters

Jon Lindsey

Major, Lindsey & Africa

New York

Professional Recruiters

Jeffrey Lowe

Major, Lindsey & Africa

Washington, D.C.

Professional Recruiters

Jane Sullivan Roberts

Major, Lindsey & Africa

Washington, D.C.

Professional Recruiters

Paul Williams

Major, Lindsey & Africa

Chicago

Professional Recruiters

Mark Rosen

Mark Bruce International

New York

Professional Recruiters

Matt Feuer

McClure Feuer

San Francisco

Professional Recruiters

Sari McClure

McClure Feuer

San Francisco

Professional Recruiters

Bobbie McMorrow

McMorrow Consulting

Summerland, Calif.

Professional Recruiters

Lynn Mestel

Mestel & Company

New York

Professional Recruiters

Deborah Dempster

RedLaw

New York

Professional Recruiters

Amy Hambleton

RedLaw

London, UK

Professional Recruiters

Liam Brown

elevate

Los Angeles

Technology

Tim Hwang

FiscalNote

Washington, D.C.

Technology

Ray Gallo

Leverage

San Rafael, Calif.

Technology

Sanjay Kamlani

Matterhorn Transactions

Miami

Technology

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SABINA LIPPMAN

BY KATRINA DEWEY

“BEST IN THE BUSINESS.” “A game changer.” “The real deal.” My, oh my, has legal recruiting changed. Not so long ago, prestigious partners were loathe to acknowledge they even knew a recruiter. Today? Some of the nation’s most acclaimed lawyers can’t gush enough about the guidance they’ve been given to find a better fit for their skills. Those quotes above? They’re about one recruiter, Sabina Lippman, of Lippman Jungers in Los Angeles. She and her business partner and husband, Mark Jungers, have rocked the recruiting world since forming their firm in 2011, combining her experience with a couple of Southern California’s more prolific firms and his leading Major Lindsey & Africa’s Chicago office. Their deal sheet is to die for, and spans New York to Shanghai with individual partner moves and staffing of AmLaw250 offices. Lawdragon: Tell me a bit about your background. Sabina Lippman: I earned my undergraduate degree in mechanical engineering at MIT, and then an MBA there. I went to Ford in Detroit and Dearborn for five years and did powertrain planning and realized I was not a car person. You have to love cars to do that, and it was also very hierarchical. If there were 37 levels, I was a seven. If you think law firms are hierarchical, try Ford. So I went to law school, at the University of Michigan. Richard Posner wrote that law school should be a two-year program and a one-year internship. Law schools would lose a lot of money, but that would have been a better program for me. I quickly realized once I started practicing that working by the transaction and not by the hour is a much better fit. LD: How did you find your way to recruiting? SL: To be candid, I realized I had a lot of debt from all my degrees and had never focused on optimizing my income. I had thought I’d go to work in human rights or women’s rights, but realized I needed to make money. I had a friend at the time who mentioned recruiting as a possibility. I went to work for an L.A. recruiter who wasn’t set up to do much volume; you can’t build on that foundation. So I went to work at Watanabe Nason because I was looking for a serious brand for partner placement. I was there for eight years, the last five as a partner. I left in March 2011. LD: You must have learned a lot for your own firm.

SL: We had our best year ever the first year of Lippman Jungers and we’ve been going up ever since. I learned a lot at each place, from the importance of forming personal connections to creating yourself as a peer of the lawyers you want to place. I also worked with recruiters with really impressive standards of productivity, from which I learned the number of candidates you have to represent at a given time to make the number of placements you need. We have refined and added to those ideas, and created a better system. LD: How did you get in the exclusive ranks of recruiters? SL: We can’t share all our secrets of course, but a key philosophy – which is true for every successful person heading a recruiting company – is I have a cold call target every day and every week. And during periods where we are significantly exceeding our projections, I can relax those numbers. We target keeping in touch with people and sustaining long-term relationships, which are calendared at particular intervals. Our team backs us up creating lists that we customize and update every week. We do a lot of work in Asia, too. In the U.S., we meet with folks and show them the landscape they could look at, and explain how things could be different for them. We have various tools that allow us to customize this for each partner, and also a lot of stuff stored upstairs after 16 years that gives you an instinct or feel for what would make sense. We have gotten to know the people and styles of our clients and what would work or not on a personal level. It is a combination of systems and experience.

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100 LD: You put your MIT background to very good use. SL: It’s very helpful. I’m really comfortable creating programs and charts to show what different scenarios look like to candidates. I’m highly systematic, where Mark is a lot more social in his way of working with candidates. We both share years of experience of doing big group deals and having a lot of institutional knowledge. Mark loves golf, tennis and wine, and this creates a great bond with a number of candidates who would not be interested in going to bootcamp with me. So while our methods overlap, we vary along those lines. LD: Do you have a sweet spot with recruits? SL: I don’t think anyone can afford to have a sweet spot. I really like to make money, so I can’t just make a couple placements in my sweet spot each year. You can hang out with people in certain practices and talk a lot, but they still aren’t going to move if the time isn’t right. So you really have to methodically work the whole spectrum. That being said, we typically work in the AmLaw 100, AmLaw 200 spectrum as that’s more easily translatable from firm to firm. But you also have to look at individual people, with a multi-part strategy. It’s really fun to do deals and work with people at the highest level, but you still need to have bread and butter. Our California practice is roughly one-third Northern California and two-thirds Southern California. We also do work in New York, Chicago, Miami and Asia. LD: A trend in law firms seems to be cutting equity partners. Do you see that and can you help? SD: We do have lots of those situations. But it doesn’t mean the lawyers are bad. It means the firm is prioritizing others. They still may be very valuable to other firms. There are lots of times where unfortunately the person isn’t marketable and there isn’t a value placed on them in this market. In many circumstances it’s our job to know what firms are prioritizing and sometimes make things happen in a hurry – many times we are working on a deadline. Compensation is starting to be announced into the next couple of months. That prompts lawyers to call us, and we call them too. Most of the time lawyers tend to be more reactive than proactive. They want to keep their day job, and won’t be thinking about optimizing their situation. Instead, they tend to focus on the client and doing the work.

wouldn’t have known about. And I love getting a call a few years later when someone calls to say, “I’m so happy.” That’s really great too. And I remember that long after the deal closes. For someone I did help to get a better job and to become more successful economically and practice-wise, and to feel his or her life is going in a different direction, that’s great. I remember in particular a female partner, and when I met her, I said “You’re incredibly talented. Why are you at x firm and in leadership at 36? You’re spending huge amounts of time on management, so your compensation is lower than it should be.” When I met her she was making $275K and I told her I could help her get to $1M by 40. I ultimately placed her a couple of times. Sometimes it’s difficult to get from A to C in the first shot. She went to B, which could have worked, but they were conservative coming in the door and she wasn’t as aggressive in negotiating (or allowing me to do so) and having confidence in her numbers. After her second move, she is now a practice leader at the right time in her career, has a substantial practice, is working with very meaningful clients, leading business development events and enjoying life. Admittedly I was a year off on the $1M – she got there by 41. Another guy, I met as a junior partner in a firm, buried below big name trial lawyers. I knew at our first meeting that he had the hustle and business savvy to become a rainmaker. He was not happy at his firm and was considering opportunities outside law. Twelve years later, he has a number of marquis clients and a practice in the eight-figure range and feels like the master of his destiny. It was exciting to be part of that climb.

LD: What’s your favorite thing about your work?

It’s also rewarding when a partner insists that a recruiter is not necessary for the right move, but ultimately comes around. This happens all the time. On one recent occasion, I stalked the partner for weeks. He finally met with me and cautiously agreed to allow me to represent him, even to firms where he felt he was already very close to management. He wound up getting three amazing offers, and told me that the firm he chose would not have been a top choice in the beginning, but ultimately was the best fit (and best offer). We spent about 10-15 hours a week talking about this decision in the last two weeks and it was great to get a very kind and heartfelt thank you.

SL: Of course, I really like doing a huge deal. But more long term, I really enjoy being able to show someone a landscape they wouldn’t have known existed and have them discover an opportunity they

Finally, doing a big deal along with team members is awesome. It’s fun going into the trenches as a team and celebrating if we are lucky enough to come out victorious.

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TERRY M. ISNER AND VIVIAN HOOD

BY KATRINA DEWEY

TERRY M. ISNER, PRESIDENT, MARKETING

that would allow me to work from home, I jumped at it. It was perfect for me as a young mom, to have that flexibility while maintaining a career doing exactly what I wanted. I’ve now been here 20 years, and I still get a thrill when a particularly great news article features a client or includes a comment!

Both started their careers in Washington, D.C., in creative roles in marketing and public relations. Through connections, they made their way to Jay Jaffe, who founded the firm, and have never looked back over nearly two decades of tremendous change in law firms and an ascension of the importance of marketing, branding and communications.

LD: Terry, you are an artist at heart. How does that combine with working with lawyers?

& Business Development, and Vivian Hood, President, Public Relations, are considered two of the most successful and vibrant professionals in law firm marketing – building on a rich legacy of a firm considered by many to have invented law firm marketing.

We had a chance to catch up with them about the need for inspiration, risk and running a law firm like a business. Fortune truly does favor the bold. Lawdragon: Can you each tell me a bit about your background and how you came to specialize in consulting with lawyers and law firms? Terry M. Isner: When I entered into the world of legal marketing, I thought I was making a horrible career move. I was doing great creative work in D.C. for associations, retail, National Geographic and Smithsonian magazine. I did some work as a freelancer for Greenfield & Belser and that introduced me to legal marketing. I went in-house at Howrey & Simon as their creative director. Luckily for me, I started off at a firm that was leading the charge in creative legal marketing. The funny part of the story is it was Jay Jaffe whom I followed into Howrey. Jay started Jaffe in Howrey, and as he left to start working for more firms and to get Jaffe Associates up and running, I came in. Up until that time, I had never met him, nor did I know anything about him. From Howrey I went to Patton Boggs as their CMO, one day Jay came in to meet with us, and from there I went to Jaffe and never looked back. Vivian Hood: I started my career at Ketchum in Washington, D.C., which gave me a broad foundation and exposure to all types of public relations. Working in media relations was what I enjoyed most. A former Ketchum colleague joined Jaffe, and when she told me about a position that became available

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TMI: Well I’m a kid at heart and that gives me the ability to look at everything I do creatively. There is an intersection where my personal and professional worlds overlap and that area drives most of my imagination. I mix branding, shameless product endorsement, and storytelling into my paintings and photography work. I also apply whimsical, cuttingedge, and playful ideas into differentiating our clients and creating innovative strategies designed to reach our client’s goals and break through the noise. It’s my job to push the envelope, and being an artist allows me to think without constraint and to simply ask: “What if?” LD: Vivian, while you also approach firms from a marketing perspective, you seem more focused on core communication and crisis management. What are some issues you see lawyers and law firms consistently grapple with there? VH: One of the most significant changes in communications/PR over the years is that many lawyers still expect every bit of news to get printed, but that’s not how it always works. So my role as a PR counselor has changed and splintered more over the years: I am part educator, and I have to teach lawyers about the changes within the media industry and manage their expectations; part strategist, as I develop creative PR plans that will work for them using a variety of tactics that may not even involve a newspaper; and part publicist, as I implement and advance their visibility and thought leadership through targeted media and other opportunities. When it comes to crisis management, I am constantly surprised at the reasons and decisions that created the situation in the first place. The same types of problems seem to repeat themselves, and despite the often highly publicized examples of wrongdoing - for example fi nancial embezzlement - the same things still keep happening. But I guess that

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on these even a little bit, you are way behind. How can you keep up with client expectations if you are not operating more effectively and efficiently for them? There are still firms out there with their heads in the sand that are not interested in entertaining any thoughts about changing. They are not building a legacy nor do they have a long-term business strategy. They are destined for extinction. Those that are focused on changing their firms to be more in line with today’s business cultures are succeeding internally and externally. They are gaining and maintaining the trust and loyalty of their clients, staff and shareholders. Change is happening at every level from law firm leadership to branding, office location and layout, to technology, hiring and retention. How sad it is for those firms that see value in the status quo. LD: Can you each speak to the life of a law firm consultant. What’s the travel, what are your days like, what are the stresses and joys of your work? TMI: The life of a law firm consultant is a bit schizophrenic. I find it to be a juggling act everyday. Working in-house you have one brand to manage; as a consultant you could be managing up to six different brands a day.

is human nature. Lawyers are people, despite what some think! LD: You are both highly acclaimed veterans in the legal field. How have you seen law firms evolve, for good or bad, during your time advising them? TMI: Law firm evolution is happening at the speed of a sloth. But there is movement. Good or bad, slow or fast, the important thing is to always keep moving forward, to learn from that movement and to quickly make the changes needed to maintain relevance with your clients. It’s time to evolve or perish. There are so many areas within the law firm that can and should evolve constantly, like technology, marketing and business development best practices as well as generational needs. So if you aren’t focused 54

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You need to be very flexible, very knowledgeable, and confident in yourself and your skills because they will be tested. For Vivian and I, there is a lot of travel, our clients are all over, and we both speak at a lot of legal marketing programs, so we find ourselves on the road quite a bit. I find it very rewarding to have the opportunity to work with many different firms and to have multiple projects going on. There is great joy in partnering with a law firm that gets it and wants to learn and evolve. VH: As a law firm consultant, I never have the same day twice. Most often, when I try to plan my day in the morning, it never happens the way I expect! That variety and unexpected direction has always appealed to me and keeps my days from being boring. As I took on the co-ownership and management responsibilities, my travel definitely increased, but it’s usually at a manageable level. I have learned to better control my stress load by staying organized of my ever-growing and never-finished task list. My system works for me, and I can’t manage my days and weeks without relying on being organized. The joys are so many: collaborating with my amazing colleagues on client work, developing long-term relationships with clients that evolve into friendships,


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succeeding in our client’s PR campaigns, working from home and being available to my family. The list goes on – I truly love what I do! LD: Do you each have a favorite law firm success story that exemplifies the importance of strong marketing and branding to your clients? TMI: We have several, but there is one recent success story that I will refer to. Recently we were asked to help a firm with their branding and marketing initiative. We were already their PR provider and they were also using three other agencies to help in the rebranding project. For the most part, everyone did a great job. Yet, while they had a new logo they liked and a new website design and strategy that they loved, they were still missing the brand. We were asked to help them solve this brand identity challenge and help tie everything up into a strategic rebranding campaign. Our goal for branding is to find those brand promises that your clients, staff and stakeholders expect and have come to appreciate. Branding is not about marketing phrases; it’s about actions, core values and culture that you cultivate over time. History plays a big part in this. We found the brand, and we identified why their clients, attorneys and staff were loyal to the brand. The marketing strategy and the type of images, messaging and business development tactics used were all formulated based on these findings. VH: One story that sticks in my mind is the importance of being strategic, but it’s a story that many law firms still don’t tell enough. A “throw every PR opportunity at us and see what sticks” approach won’t support the business development and marketing goals that a practice, or a firm, should have. A lot of firms still are taking baby steps at best practices, and when I can convince them to be strategic and focused versus “give us everything and anything,” that is a success! We have some clients that just can’t commit yet to being fully strategic with their PR, but we’ll get them there! LD: How do you stay current on trends in legal marketing, and what do you think is the most important issue facing law firms today? VH: I believe it is incredibly important to be involved with our industry, such as by participating in and attending Legal Marketing Association meetings and conferences, reading relevant news, understanding what is happening in other professional services and corporate environments, connecting with industry

peers, writing and sharing our thought leadership, and – equally important – listening to our clients’ needs. We have to stay current, even ahead, of what is important because we are in the position of advising our clients about those matters. The most important issue facing firms is how to adapt to change and grow. The legal industry has seen enormous change particularly in the past 10 years; it’s incredibly different than it was 20 years ago when I first started. The impact of social media, new technology, mergers, law firm failures, fee structures, succession issues, generational differences – these dynamics and so much more are changing the future of law firms. Those that have understood and accepted these external and internal influences are the most successful. It is a privilege to help law

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100 firms understand what they are facing and to assist them in making fundamental shifts that will shape their futures.

environment concepts, work-life balance, knowledge sharing, technology platforms, collaboration, these will be factors driving the legal industry of tomorrow.

TMI: I think some folks are doing some very creative things in legal marketing, and I am proud of them for pushing the envelope - it gives me hope. I don’t really follow current legal marketing trends; if I did, I wouldn’t be providing the industry with innovative ideas.

LD: What do you most enjoy about working with lawyers? And what are you most proud of about the Jaffe organization and its work?

I prefer to be setting trends. To do that, I focus on the marketing trends of our law firm’s clients. Marketing in other industries is currently more creative and more client focused, and I see greater value in understanding these strategies and applying that creative thinking to legal marketing. For those that trust in our creative strategies, they end up doing some very nontraditional things, and law firms love to wait and see what the other firms are doing, so it is easy to be a trendsetter when it comes to legal marketing if you are not a follower. I think there are several important issues that law firms are facing. One is leadership and succession. Too many firms operate without a strategic plan, too many law firm leaders lead by consensus building and, sadly, too many firms are not grooming their next leaders. It’s time to run the law firm like a business. Differentiation through branding is another issue; we still aren’t branding our firms correctly. Branding is about culture and core values and how those resonate with the client. These qualities set you apart from the other firms, and it is extremely important to know them and live by them. A third is generational synchronicity, i.e., how can firms adapt to the needs of three generations of lawyers, each equally important to the success of the firm. LD: What do you see on the horizon for law firms, from small firms to global powers. In particular, we seem to be nearing the end of a phase where big law firms seemed intent on creating global platforms through principally branding. How would you grade those efforts, and what do you see coming next? TMI: There are so many disrupters out there at the moment it’s hard to predict the future, but I don’t think it will include the Big Law model. I can’t see millennials conforming to the culture of mega firms. That said, I do see law firms being run as a business and not a partnership, and I am surprised that some legal vendors don’t already offer legal services. The legal industry is being redefined, but we are way off from seeing its new iteration. Different work-

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VH: I have always said that working with lawyers has made me smarter. My education didn’t stop when I graduated college. Every day I learn something new in a number of topics. It’s fascinating, and I appreciate that I am a more interesting, well-rounded and knowledgeable person as a result! I think that my family and friends, and future clients, appreciate that, too! I am incredibly proud of everyone at Jaffe. Each person here has a role and a talent – a gift – that interlocks with each other and our clients. We are fortunate to have a low employee turnover rate, and I believe our culture is one reason why – we strongly encourage a lifestyle balance. We have many longterm employees who have been here eight, 10, 15 and more years, such as Senior VP of Public Relations Kathy O’Brien, who started off part-time and now is recognized on the Lawdragon 100 Leading Consultants list, and deservedly so. I so appreciate the passion and commitment and enthusiasm and professionalism that everyone here gives every day. They are all among the best in the industry, and I know they could work anywhere they wanted to. But they choose to work here! TMI: Working with lawyers is fairly predictable, but when they get it and see the value of strategic and creative thinking for branding and business development purposes, it is at that point I get the greatest joy, knowing you just provided someone with the knowledge and tools to succeed. Lawyers are smart, funny and creative; you just have to know how to tap into it. Jaffe is exactly where it needs to be right now. We have a very diverse, talented and loyal team, and it is that team that makes Jaffe what it is today. Many of us have been together for over 10 years, and it’s the team dynamic that makes us. My two business partners, Vivian and Melinda Wheeler, complete me as an agency leader, allowing us to focus on individual areas and then collectively manage Jaffe. We take great pride in our people and respect the unique makeup of our team, and I believe this resonates with our clients.



This Pentagon-approved sketch by court artist Janet Hamlin from June 2014 shows the perspective from the viewing gallery at the Camp Justice courtroom. The five defendants, from front to back – Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al Shibh, Ammar al Baluchi, Mustafa al Hawsawi – sit on the left side of the courtroom with their defense teams, while prosecutors sit on the right. (AP Photo/ Janet Hamlin, Pool)


Pretrial of the Century:

The Sept. 11 Case at Guantanamo Bay


An inside look at the government’s epic attempt to prosecute the five accused 9/11 plotters in an untested military system at Guantanamo Bay – and defense lawyers’ efforts to prevent the government from executing the men they say are torture victims. A special report based on a year of reporting from Guantanamo Bay covering the military commissions, a system created by the Bush administration and amended under President Obama, to try detainees captured in the ongoing war on terror. I. Torture v. the Sept. 11 Attacks The main reason Ed Ryan took the podium on May 31 was to convince the judge, Army Col. James Pohl, to allow the government to preserve the testimony of aging or infirm family members of the victims of the Sept. 11 terrorist attacks – those who may not make it to trial as witnesses. Since the May 2012 arraignment, the pretrial phase has crawled forward, leaving any trial at least a few years away; jury selection could last months, the trial itself more than a year. Already, two witnesses the government planned to call have died. Prosecutors wanted to take the pretrial depositions in open court during the scheduled October 2016 session at Guantanamo Bay, in the presence of the five defendants. Defense attorneys objected, claiming that taking the public testimony would prejudice the defendants – all of whom face the death penalty – before the trial even begins. During arguments, it became clear that Ryan had another motive: He wanted to refocus attention to Sept. 11, 2001, when orchestrated terrorist attacks killed nearly 3,000 people in New York, the Pentagon and a Pennsylvania field. And he wanted to let anyone watching know that prosecutors were a little sick and tired of what has become a frequent refrain of all five defense teams – that the past torture of their clients should undermine, at every possible turn, the government’s efforts to bring these men to justice. All five defendants spent multiple years at CIA black sites and were subjected to what the Bush Administration gently termed “enhanced interrogation techniques” before they arrived at Guantanamo Bay in September 2006. “Since the proceedings began in 2012, the word torture has been used over 500 times in this courtroom,” Ryan told the judge. “By comparison, the 60

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phrase September 11, or 11 September, or 9/11, about 200 times.” No one from the defense side of the room challenged these numbers. Torture has hovered over the case since the beginning and will remain through its final days, whenever that may be. The December 2014 release of the executive summary of the Senate Select Committee on Intelligence report on CIA interrogation practices, commonly referred to as the “Senate Torture Report,” declassified a significant amount of information about abusive practices inflicted on terrorism suspects. Army Brig. Gen. Mark Martins, who is Ryan’s boss and the chief prosecutor of the military commissions, said publicly after the report’s release that it should positively impact the case by allowing for greater transparency of the proceedings. It also provided a flood of vivid torture references in court by defense attorneys. Waterboarding, slapping, confinement inside a coffin-like box, wall-slamming, rectal hydration, rectal feeding, sleep deprivation, exposure to cold temperatures, prolonged isolation, being deprived of sunlight for years at a time, being hung from chains in diapers without use of a toilet – all of these receive mention in court. The case’s docket has close to 4,500 filings. The government’s count of motions that deal with substantive legal issues totals about 220; these have generated thousands of pleadings as the five defense teams and the prosecution have litigated each motion back and forth. In many of these documents, the defense teams have challenged the legitimacy of the military commissions system, the current conditions of their clients’ confinement at the top-secret Camp 7 detention facility on Guantanamo Bay and the government’s moral authority to execute the defendants. Defense attorneys see evidence of past torture as not only relevant to many of these arguments but also as


the key weapon in their arsenal. They also believe the government is prosecuting their clients in this new and untested forum instead of a federal court or court-martial in order to hide Bush-era abuses. In fact, defense lawyers often contend that the government remains in violation of the Convention Against Torture by failing to provide any mental or physical rehabilitation for the past abuse. Walter Ruiz, the lead attorney for defendant Mustafa al Hawsawi, who is accused of providing money to the hijackers, considered it a positive step this October when his client underwent surgery for rectal damage that the attorney links to “sodomy” disguised as medical treatment during the black-site years. Ruiz explained to reporters that his client “has to choose between eating and defecating,” due to the pain and blood associated with bowel movements, and that having a bowel movement required al Hawsawi “to reinsert parts of his anus back into his anal cavity.”

Ryan explained to the judge that the 10 prospective witnesses would all be “victim-impact witnesses” – those not called at the guilt-or-innocence phase of the trial but during the sentencing phase, if there is a conviction. He asked that their testimony be taken in October and preserved for later use. “Our submission to you is that the testimony of people saying, ‘My child meant the world to me,’ or ‘My husband meant the world to me,’ and ‘Their loss has devastated me,’ that won’t be anywhere near a point of jeopardizing a fair trial,” Ryan argued. The prosecutor added that one witness would have “a dual role” as both a victim-impact witness and as a fact witness to the attacks. Lee Hanson, age 83, lost his son Peter, daughter-in-law Sue, and granddaugh-

These and other details may surprise or alarm those who haven’t read the Senate report, but in the context of the 9/11 proceedings they have become somewhat mundane. Ryan reminded the judge during his argument that “We even got to watch movies” about torture, referring to Feb. 19, 2016, one of the case’s more unsettling and surreal days. James Connell, the lead defense attorney for Ammar al Baluchi, screened torture scenes from “Zero Dark Thirty” featuring a character based on his client. Connell wants more information about the CIA’s treatment of his client, which he claims was given to filmmakers but not defense lawyers. Their backs to the viewing gallery, the five defendants watched Hollywood’s rendition of their torture in silence. Prosecutors, too, have some powerful facts at their disposal, as Ryan’s oral arguments made clear that Tuesday morning. This court system, established by the Military Commissions Act of 2009, is based on rules and procedures from the Uniform Code of Military Justice (UCMJ) as well as regular federal courts. Both prosecution and defense teams benefit from a mix of military and civilian lawyers and staff. From the civilian side, Ryan is a longtime award-winning federal prosecutor with stints in North Carolina and Southern Florida. Very friendly in casual conversation outside court, Ryan can be an imposing presence during arguments, with his tall frame and booming voice.

David Nevin, lead defense attorney for Khalid Sheikh Mohammed. Image by Joint Task Force-Guantanamo.

ter Christine – “the youngest victim of 9/11,” Ryan said – when United Airlines flight 175 crashed into the South Tower. Ryan explained that Peter had placed a harrowing call to his dad during the hijacking. “Stabbings of flight attendants, flying erratically, people screaming, hijackers claiming they had a bomb,” Ryan recounted. “That phone call ended with Mr. Peter Hanson saying to his father, ‘Oh, God, ‘Oh, God,’ – and the plane crashed into the South Tower.” Ryan’s delivery was a punch in the gut. There was audible discomfort in the viewing gallery, which seats the media, NGO observers and victim family members chosen by lottery to attend the proceedings. Sobs could be heard as a curtain was drawn to give the family members privacy.

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Defense attorneys later acknowledged the power of Ryan’s presentation, and his skills as an advocate, but not everybody in court was pleased. Later that afternoon, after Ryan finished his plea for public depositions, Khalid Sheikh Mohammed surprised the courtroom by telling Pohl that although he had been “neutral” in the argument, he now wanted to speak. The accused plot mastermind, Mohammed is the best known of the defendants and sits at the front table, closest to Pohl. According to the charges, Mohammed first began hatching the plot – referred to by the defendants as the “Planes Operation” – with Osama bin Laden in 1996 and then guided it to its conclusion five years later. The judge admonished Mohammed to pipe down and threatened to remove him from the court – but not before the defendant uttered something about a “nuclear bomb,” according to the court’s Arabicto-English translator. After Mohammed settled a bit, Pohl told David Nevin, his lead attorney, to talk to his client. It wasn’t exactly clear what Mohammed was trying to say. Those in the viewing gallery watch the proceedings in real-time through a wall of glass, while the audio and video feed arrives on a 40-second delay allowing the judge and his security officer to prevent the spill of classified information. The disjointing experience is made worse in these situations: Pohl and Mohammed spoke over not only one another but also trampled the simultaneous translator. The transcript for that day records that Mohammed said: “He needs to know that this is a nuclear bomb in the world.” In addition to a live Arabic translation for the court record, which is provided by a translator not present in the courtroom, the defendants each have interpreters that sit at their tables to provide additional assistance. But Mohammed hadn’t had his team interpreter in about a year; for reasons that were still not exactly clear but extremely frustrating to Nevin, this person had lost his security clearance. Nevin had unsuccessfully sought to postpone the proceedings until the interpreter was restored. (Prosecutors often point out that Mohammed seems to speak pretty good English. He earned a mechanical engineering degree from North Carolina A&T University in 1986.) Nevin explained to Pohl that the lack of a team interpreter contributed to Mohammed not fully understanding what was happening in court when Ryan was talking about the Sept. 11 attacks. Nevin 62

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said that Mohammed also was bothered by the fact that both Nevin and Cheryl Bormann, the lead attorney for co-defendant Walid bin Attash, who sits directly behind Mohammed, had objected to a few of Ryan’s statements on the grounds the prosecutor had mischaracterized the defense’s opposition to the depositions, but Pohl overruled them. “Well, that’s the way the system works,” Pohl said. Later that evening, Nevin, a prominent criminal defense attorney and name partner at Boise, Idahobased Nevin Benjamin McKay & Bartlett, stopped by the media center at Camp Justice to explain to reporters his view of what happened. The nuclear bomb statement may have been a reference to U.S. aggression in the world, he said, such as the use of atomic weapons against Japan in World War II. More generally, his client was bothered that Ryan seemed to be giving a closing argument in the case, and Pohl seemed to be helping him out by overruling the defense objections. Nevin described Ryan’s argument as “compelling and effective.” The following day, when victim family members met with the media, there was great satisfaction among those who spoke on the record: Finally, they said, the proceedings had returned their focus to the 9/11 attacks. “About damned time,” said Kenneth Fairben, who attended with his wife Diane. The Fairbens lost their son, Keith, a 24-year-old paramedic who died while helping victims in the South Tower. They have set up the Keith Fairben Memorial Scholarship Fund to pay for medical and paramedic training courses for applicants in Nassau County, N.Y. – one of a countless number of charitable efforts launched by victim family members. Fairben said that most of his and his wife’s friends are now becoming grandparents for the first time. But Keith was their only child. “That’s something we will never have,” Fairben told reporters. Several weeks later, Pohl issued a written ruling that the government could depose two witnesses, but the process would take place outside of court, in the Washington, D.C., area, during December, and result in sealed testimony to be used at a possible sentencing phase. After a government motion to reconsider, Pohl issued another order allowing two additional witnesses for D.C.-area depositions, for a total of four, including Hanson. Pohl added that


any testimony by Hanson on the merits of the case – not the sentencing – would have to take place in Guantanamo Bay before the accused, unless the defendants waived their right to be present. The government later withdrew its request to depose all of the approved witnesses, except for Hanson. Of course, it’s hard to tell when a sentencing, or even the trial itself, might take place. Chief prosecutor Martins regularly declines to estimate when the trial might start. Defense teams have estimated that a trial is several years away, with Ruiz last Fall having provided the most dire prediction by saying it might be 10 years out. The most recent proceedings prior to this publication, held from Oct. 11 to 14, were the 18th pretrial session, occurring shortly after the 15th anniversary of the Sept. 11 attacks and before a presidential contest between two candidates who had different views of what to do about Guantanamo Bay. Former Secretary of State Hillary Clinton supported President Obama’s efforts to close the detention facility, while PresidentElect Donald Trump has said he would expand the detention operations. Congress has blocked the transfer of detainees to U.S. soil. But even closure of the detention operations at Guantanamo Bay would not itself terminate the military commissions system. Moving the case to federal court, where the Obama administration had wanted it to take place before abandoning the plan under political pressure, would be a separate decision. The 2009 MCA limits the military commissions’ jurisdiction to “alien unprivileged enemy combatants” – foreign terrorists and war criminals – but doesn’t say they have to be prosecuted at Guantanamo Bay. “Military commissions, like courts-martial, can be convened wherever you can securely hold a trial,” Martins told Lawdragon after the February pretrial session, before the plane ride back to Joint Base Andrews. “That can be many places.”

II. Case Focuses on Defense Access to CIA Interrogation Evidence

Though Ryan may have scored a moral victory of sorts at May’s end, past torture of the defendants remains the dominant theme in the pretrial phase. Martins wasn’t even in court to hear Ryan argue; he was back in Washington, D.C., partly to participate in oral arguments before the military commissions appellate panel in a separate death penalty case against Abd al Rahim al Nashiri, who is accused of

masterminding the USS Cole bombing in October 2000. (The third active military commission in pretrial hearings is against Abd al Hadi al Iraqi, who faces a life sentence for alleged war crimes as an al Qaeda commander.) The other reason Martins stayed in D.C. was to push forward the discovery process related to the CIA’s Rendition, Detention and Interrogation (RDI) program as the government seeks to determine what information about the defendants’ treatment at black sites should be given to the defense. Before the hearings, Martins talked by phone to reporters at Guantanamo Bay to explain his absence. At that point, the case’s “center of gravity” was in D.C., not at Guantanamo’s Camp Justice, given the looming discovery deadline of Sept. 30 for CIA black-site evidence – a date proposed by prosecutors and agreed to by the judge earlier in the year. Martins became the chief prosecutor in September 2011 after commanding a Rule of Law task force in Afghanistan. He graduated first in his class from West Point in 1983 and became a Rhodes Scholar. Through the Army’s Funded Legal Education Program, he attended Harvard Law School and graduated in 1990. The school awarded him its highest honor, the Medal of Freedom, in 2011, for his distinguished career as a lawyer and soldier. The commission’s work is largely done away from Guantanamo. While prosecutors trudge through discovery, defense teams travel around the world to prepare their cases. Both sides file lots of pleadings related to pending motions, and Pohl rules on matters that have been fully briefed and argued. That last part is the domain of Guantanamo trips – with oral arguments there reserved for motions that have been fully briefed. They take place every other month or so, parceled into one or two weeks at a time. Martins has published academic articles and taught at the Army Judge Advocate General’s School. He can come across as professorial when explaining aspects of the military commissions system to the media; that is similar to his reserved style in court. He typically meets with reporters before each court session and holds a formal press conference at the end. During the two-week trips, he’ll also hold a press briefing on the middle weekend. He and his staff are happy to find a pleading or citation relevant to a reporter’s inquiry. They also provide DVDs of all the commission pleadings and transcripts. (Defense teams are also generous with their time to the traveling reporters.)

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Army Brig. Gen. Mark Martins meets with reporters at the Camp Justice media center. Photo by John Ryan.

Martins is patient responding to repetitive questions, the most common being: Why is this case taking so long? Cordial as he is, the general can sound a bit irked – you can sense his blood pressure rise – when he’s asked to respond to defense allegations that the government is skirting its discovery obligations with the CIA black-site material. In July, the court spent half a day sifting through defense claims that the government improperly destroyed evidence from a CIA black site. “Allegations that can be wild and extreme should not be confused with serious allegations,” Martins said at the press conference concluding those hearings. His mantra? That his team is working on discovery “24 hours a day, seven days a week, 365 days of the year, including holidays.” He also underscores that prosecutors will not use any evidence from coercive CIA interrogations. He is more than well versed in his topic. Before he was deployed to Afghanistan, Martins co-led President Obama’s Detention Policy Task Force and helped draft the 2009 Military Commissions Act, which reformed the Bush Administration’s 2006 MCA. Among the reforms in the Obama version was a clear bar against the use of evidence obtained through cruel, inhuman and degrading treatment. Martins also typically adds that the government has already turned over in its case in chief to the defense some 300,000-plus pages of unclassified evidence and thousands more pages of classified material, and that the CIA black-site evidence is small by comparison. 64

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The government has nevertheless acknowledged that black-site evidence is relevant to various defense efforts. One is mitigation – the defense will continue to argue that past torture should bar the government from executing their clients. The more the defense teams learn about this past treatment, presumably the stronger their mitigation arguments will become. The evidence will also assist defense motions to have the case dismissed for outrageous government conduct. Beyond that, the defense teams will challenge the admissibility of their clients’ statements made after they arrived at Guantanamo Bay from the black sites. Defense attorneys say that these interrogation sessions are not “clean” – even if they did not employ the earlier brutal methods – and are instead tainted by the past torture, and should thus be suppressed by Pohl. How much the defense will learn about this past treatment is the critical legal question in pretrial litigation over discovery. The only public portion of the Senate torture report is the 500-page executive summary, which itself has redactions. The still-classified report is 6,700 pages, and it was based on about six-million pages of underlying documents. Defense lawyers have said that a massive “document dump” of all that material is at least theoretically possible because they and other members of their teams have top security clearances allowing them to view this information. Under the Brady v. Maryland principles, they add, the defense is entitled to all information that is favorable to the defendants. Under Brady, discovery always begins with a presumed good faith effort by the government to provide information to the defense. However, the government can invoke a “national security privilege” that allows it to withhold certain information that, if released, could jeopardize national security. In such situations, prosecutors can propose substitutions or summaries of the underlying information in a process that requires cooperation with the “original classification authority” – the authority or agency that first classified the information – whether it’s the CIA or another agency that has a stake or concern in the material’s distribution. It’s then up to the judge to determine if the proposed substitutions and summaries are fair by giving the defense “substantially the same ability” to make its arguments as if it had the original classified material. This process by the military commissions system mimics the procedures used in federal court cases under the Classified Information Procedures Act, or CIPA.


Pentagon-approved sketch by court artist Janet Hamlin from June 16, 2014.

Martins has described the process as “interactive” between the judge and the government. Earlier this year, Pohl adopted the government’s plan to provide, by the proposed Sept. 30 deadline, ten categories of CIA black-site information, including a chronology of where the defendants were held; details of how they were treated; summaries of interrogations; the identifications of interrogators, guards and medical staff at the black sites; and official documents on the use of the enhanced techniques, among other areas. Some evidence – including classified photos of the detainees at the black sites – has already gone to the defense teams. But most material is either with, or on its way to, Pohl, along with the prosecution’s proposed summaries and substitutions. (Martins told reporters before the October session that his team met the Sept. 30 deadline.) The commissions system incorporates CIPA procedures and also a standard from U.S. v. Yunis, a D.C. Circuit decision from 1989, which held that, in situations in which the national security privilege is invoked, the defense is not entitled to the evidence based “on a mere showing of theoretical relevance.” According to commission rules, the judge has to determine that the information is “noncumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution’s case, or to sentencing.” What makes a certain piece of evidence “cumulative,” or redundant or repetitive, and therefore not discoverable, is a disputed area between defense attorneys and prosecutors. Also disputed is who gets to make the initial cumulative determinations – the judge or the prosecutors.

The Defendants

1) Near the front (right) of the court is the accused plot mastermind, Khalid Sheikh Mohammed, who allegedly first met with Osama bin Laden in Afghanistan in 1996 to discuss the “Planes Operation.” He then directed the training and financing activities of the hijackers and the other four defendants, according to the charges. 2) Walid bin Attash, who sits behind Mohammed, allegedly ran a training camp in Logar, Afghanistan, to help find “trainees” for the operation, researched flight timetables to plan for coordinated attacks and conducted early “casing” missions to test security and surveillance of airports and flights. 3) In the middle, Ramzi bin al Shibh allegedly planned to become a hijacker but later became Mohammed’s “main assistant” in the Planes Operation after being denied a visa, and assisted with financing the operation. 4) Ammar al Baluchi, a nephew of Mohammed, allegedly ordered flight simulation software, transferred money to the hijackers and assisted with their travel. A year before the attacks, he allegedly wired $70,000 from Dubai to hijacker Mohammed Atta – designated as the “emir” of the operation – and another hijacker in Florida. 5) Mustafa al Hawsawi, who sits near the back of the court (left), also allegedly assisted the hijackers with travel to the U.S. and funding.

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During February proceedings, Pohl referred to cumulative as the “word of the day” as defense attorneys argued for access to correspondence and memos between the White House, the Department of Justice and the CIA on the controversial Bush-era rendition and interrogation program. Connell presented an elaborate slide illustrating the Yunis and Brady requirements when arguing to Pohl why the defense was entitled to “distribution channels” of torture memos between various arms of the government. Another key reform in the 2009 MCA was that all defendants facing the death penalty receive government-paid “learned counsel” with experience in capital cases, in addition to military defense lawyers. The lead attorneys for all five defendants are civil-

arguably be cumulative, but also who had received them. “Noncumulative is who got it,” Connell argued. Pohl came at the discussion from a different angle, asking if the government’s conduct is more outrageous simply because more people know about it. “Absolutely,” Bormann responded. The Chicagobased defender generally eschews Connell-style formal presentations in favor of exasperated critiques of the fledgling commissions system compared to the tried-and-true of federal courts. “This is by far the most restrictive discovery regime of my career,” Bormann said. Previously, Bormann had been best-known for running Illinois’ Capital Trial Assistance Unit, a state agency that assisted defense lawyers on death penalty cases. In that role, she was part of a coalition of lawyers and activists that convinced the state to abolish the death penalty in 2011, a victory that made her job at the time, in a sense, cumulative. She told the New York Times in 2011 that maybe she would go to “another state” to fight the death penalty, not yet knowing she would soon be fighting its application at Guantanamo Bay. Bin Attash, her client, is accused of running an al Qaeda training camp attended by two of the hijackers, and he also allegedly conducted some of the initial tests of the operation by bringing razor knives on planes. He lost his right leg fighting the Northern Alliance in Afghanistan and wears a prosthetic.

James Connell, lead defense attorney for Ammar al Baluchi, with military defense lawyer Lt. Col. Sterling Thomas of the Air Force. Photo by John Ryan.

ian attorneys who contract with the Department of Defense. Connell was a federal public defender before going into private practice, where among other cases he handled the appeal of John Allen Muhammad, the so-called “D.C. Sniper” who was executed in 2009. Connell is big on slides and often will make the most in-depth presentation on a legal topic in defense of his client, who is a nephew of Khalid Sheikh Mohammed and accused of providing money to the hijackers. (After finishing his argument, he was pleased that Nevin also wanted to refer to his Yunis and Brady slides. “It’s my proudest moment, your Honor,” Connell remarked before ceding the podium.) His point to Pohl was that the defense needed to know not just the content of the memos, which could 66

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Bormann asked Pohl to think back to the paper trails of Nazi officials that were revealed during Nuremberg trials after World War II. “The number of people that know about illegal conduct, or what I would characterize as war crimes, and cover them up, and the further those fingers stretch into various components of the United States Government, I would say that makes it more outrageous,” Bormann argued. The defense teams told Pohl that it is he – not the prosecution – who must decide what is cumulative, given the judicial role in determining what versions of classified information the defense gets after the government has invoked its national security privilege. But Martins disagreed. He argued that prosecutors always get a “first cut” in discovery and make the initial cumulative decisions. “We categorically reject this notion that we have to present every duplicate we have to you so you


can sort out which is cumulative and which is not,” Martins told Pohl. The cumulative debate is relevant not only to how many copies of memos are produced but also to the level of detail that defense teams receive about interrogation techniques – details they later hope to present to the panel of military officers who will be charged with deciding the defendants’ guilt or innocence, and then their sentences if there are convictions. In the February session, Nevin told Pohl that maybe it would be “the 403rd blow that was delivered against Mr. Mohammed” that would make a difference to the panel members, “only one of whom has to say execution is not right here.” That level of detail “may feel cumulative” if the panel has already learned that some abuse took place, Nevin argued, but “one more event may be important to one of these jurors who will have Mr. Mohammed’s life in his hands, if we get to that point.” In the arena of discovery about past torture, the Yunis cumulative arguments did not exactly fall into the category of riveting courtroom drama. That excitement was reserved for arguments about the government’s alleged destruction of CIA black-site evidence. Three defense teams want both Pohl, who is alleged to have improperly colluded in this effort, and the prosecution team removed from the case; a fourth, led by Connell, wants the prosecution removed but to question Pohl about his possible involvement; and a fifth, led by Ruiz, wants the judge and prosecutors to remain on the case. Ruiz also sees improper evidence destruction but wants to pursue different remedies later in the litigation. In July, the issue was somewhat narrow: If Pohl should hear the motion for his recusal or farm it out to another judge – the recusal before the recusal, if you will. But the arguments got nasty, with the prosecution and defense each calling the other “despicable.” The courtroom translators who provide the Englishto-Arabic translation for the defendants regularly tell attorneys to “slow down,” with Connell being the most common offender. It does not happen with Nevin, who is deliberate, meticulous and sometimes slow-moving in his style. He also has an admitted anti-authority streak and does not shy away from expressing outrage in court. One source in an ABA Journal profile of Nevin described the veteran defense attorney as “a velvet shiv.”

Timeline of Events Sept. 11, 2001

Terrorists using four hijacked planes kill 2,977 people in New York, the Pentagon and a Pennsylvania field.

2002-2003

The five defendants are arrested in several locations in Pakistan.

September 2006

The five defendants are transferred to Guantanamo Bay after being held for multiple years at CIA black sites, where they were subjected to “enhanced interrogation techniques.”

June 2008

The defendants are arraigned at Guantanamo Bay under the Bush-era Military Commissions Act of 2006.

January 2009

Upon taking office, President Obama halts the military commissions for the Sept. 11 defendants and other detainees facing charges.

October-November 2009

Obama signs the 2009 Military Commissions Act, with reforms to the system. Nevertheless, Attorney General Eric Holder announces that the five 9/11 defendants will be prosecuted in lower Manhattan federal court.

April 2011

Facing congressional prohibitions on transferring detainees to the U.S. and other political pressure, Holder announces that the Sept. 11 case will be returned to the military commissions system at Guantanamo Bay.

May 2012

The five defendants are arraigned again at Guantanamo Bay, this time under the Obama-era Military Commissions Act of 2009.

December 2014

The U.S. Senate Select Committee on Intelligence released the findings and executive summary of “Study of the CIA’s Detention and Interrogation Program,” which though redacted contains details of past abusive treatment of the five defendants and other captives in CIA custody.

October 2016

The Sept. 11 military commission holds its 18th pretrial session in the case, shortly after the 15th anniversary of the attacks. A trial date is not yet set. The last pretrial session of 2016 is scheduled for Dec. 5-9.

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Nevin outlined what he saw as a troubling sequence of events: Earlier in the case, Pohl had issued a “do not destroy” order related to evidence at overseas detention facilities. In good faith, defense teams had relied on the order. But then, in June 2014, Pohl issued a secret “destruction order” after an ex parte, or unilateral, presentation by the government, without giving defense teams a chance to challenge it. In fact, defense teams did not learn about the destruction order until 20 months after it was issued. Nevin said that he deduced from the events that Pohl had not first seen the original evidence to assess the adequacy of any substitutions proposed by the government before he made his ruling. “We have lost the ability to put our hands on some of the most important evidence in this case,” Nevin contended. Prosecutor Robert Swann shot back that Nevin was “not Sherlock Holmes.” The government has conceded that the failure to provide the June 2014 order to the defense teams in a timely manner was “regrettable.” Swann blamed it on miscommunication between the prosecution and Pohl as to whether the judge or prosecutors were responsible for distributing the document. Otherwise, Swann argued, the government followed the CIPA-like procedures that allow prosecutors to seek to provide substitutions or summaries for classified evidence. In this situation, the substitutions were photographic evidence provided to the defense. He said that both the defense and prosecution are allowed to make ex parte presentations to the judge – nothing fishy about that, contrary to what Nevin said. Swann, a civilian Department of Defense lawyer and former Army judge advocate colonel, worked on the 9/11 case during the Bush years, as did Ryan. (The defendants were initially charged under the 2006 Military Commissions Act before the Obama Administration temporarily halted, and then reformed, the commissions system.) Swann also served as chief prosecutor of the military commissions from 2004 to 2005, the first version of the system that Bush created by executive order in 2001. That version was in 2006 determined to be unconstitutional by the Supreme Court in Hamdan v. Rumsfeld, a decision that prompted the passage of the original Military Commissions Act later that year. Swann can be surly and occasionally funny in his jabs at the defense. Like Ryan, he is more prone to display hints of anger and frustration in court than 68

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Martins. On this day, he was clearly angry that Nevin had insulted the integrity of the judge. “They can’t manufacture a recusal by distorting the truth,” Swann told Pohl. “Their needless comments, their sarcasm, their pompous condemnation are all undignified and lack civility.” Written pleadings filed on this dispute in the weeks before the July session had also turned unusually bitter. The government accused Nevin’s team of “shrill antics” and filing a “hatchet-job of a motion” unfairly attacking Pohl after 35 years of honorable service. Mohammed’s team responded that prosecutors were predictably relying on “jingoistic histrionics” and had an “overarching priority of covering up the wide-ranging governmental conspiracy in criminal wrongdoing.” After oral arguments, Pohl ruled from the bench that he would not recuse himself from deciding whether he and the prosecution team should be removed from the case. He is expected to hear arguments on that issue during an upcoming session. Since that hot July day, the government and Pohl have made progress on their “interactive” process of deciding what classified information on the CIA interrogation program will be produced to the defense. In August, Pohl ruled that the government’s “proposed substitutions and summaries” were adequate for the first two categories of discoverable information – the chronologies of where the defendants were held from their capture to their arrival at Guantanamo Bay, and the descriptions of how the defendants were transported between the various locations. The remaining eight categories apparently remain a work in progress. Pohl – also the chief judge of the commissions system – does not appear to be merely rubber-stamping the government’s proposed versions of the evidence. In July, he informed the defense teams in court that he had been reviewing the prosecution’s proposals and had sent “virtually all of it” back for additions. Defense attorneys were somewhat heartened by this disclosure. What happens if Pohl wants “additions” – more detailed evidence – about past abusive treatment that the prosecution can’t get the original classification authority, the CIA, to provide? Conceivably, the judge would have to abate the proceedings until the government complies with his order to provide additional evidence. What appears to be the more likely scenario is that the defense will receive the Pohl-approved substitutions and summaries, determine them to be insufficient, and then file motions contending the government needs to provide additional discovery.


The judge told defense attorneys back in February – when he signed off on the government’s proposed 10-category framework – that he would not stop them from filing additional discovery motions, including in areas that may fall outside the 10 categories. “I’m going to remind you of that somewhere down the line,” Bormann told him.

III. Why is This Case Taking So

Long?

The oral arguments over CIA interrogation evidence are a relatively new development in the case, starting in earnest this February and continuing into the Spring and Summer. Connell often serves as the defense-side explainer-in-chief for the media and traveling NGO representatives, and even sometimes for the parties in court, given his savant-like knowledge of the ligation. He said the focus on interrogation discovery marked a “new phase” in the case. Martins generally avoids such labels but acknowledged the obvious importance of moving forward with the process. “Once discovery is done, we’ll be able to seriously set trial milestones, leading to a selection of a jury panel of officers,” he said in an interview following the February session. The case already has taken a long time to get to this point. Not surprisingly, there is some finger-pointing between the defense and prosecution about which is more responsible for the pace of litigation. Many people who have not been following the goings-on at Guantanamo Bay are surprised to hear that 15 years after the attacks the government is still trying to prosecute alleged 9/11 conspirators. In fairness, though, the longest delays in putting the accused through a trial have little to do with the present case, which is the second attempt at a military commission for the five defendants. The first attempt took place during the Bush era. The Bush administration’s decision to prioritize intelligence-gathering from suspects over prosecuting them delayed any trial from the outset: The defendants, all captured in 2002 or 2003, were not charged in the Bush-era military commissions until June 2008. The first commission, brought under the 2006 Military Commissions Act, seemed like it would move quickly. The five defendants sought martyrdom and rejected their defense attorneys at the arraignment. (The 2006 MCA only provided defendants with military defense lawyers, but the American Civil Liberties Union and

the National Association of Criminal Defense Lawyers launched the John Adams Project to hire civilian lawyers to assist in the defense.) In a December 2008 hearing at Guantanamo Bay, the five defendants said they wanted to plead guilty. However, the judge on that first commission, Army Col. Stephen Henley, determined that al Hawsawi and Ramzi bin al Shibh and could not make decisions about their own cases, due to questions about their mental competency. Mohammed, bin Attash and al Baluchi told Henley that they would wait until those issues were resolved before entering pleas. (Henley also asked the prosecution and defense lawyers to brief whether he could accept guilty pleas for capital offenses and, if so, whether the death penalty could be imposed, given that the 2006 MCA required a conviction “by the concurrence of all” the panel members before a death sentence.) The defendants never got the chance to enter their pleas. Obama took office the following month and immediately suspended the military commissions system, which included the 9/11 case and several other cases involving accused terrorists and war criminals held at Guantanamo Bay. Eventually, Obama decided that he would develop a new-and-improved military commissions system that was more credible in his eyes, with bans on evidence from cruel treatment and enhanced defense rights to counsel. “Military commissions have a long tradition in the United States,” Obama said on May 15, 2009. “They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered.” However, even with the passage of the 2009 Military Commissions Act later that year, the Obama administration decided to hold the Sept. 11 case in lower Manhattan federal court, a short walk from the site of the attacks on the World Trade Center towers. This further delayed a trial, as Attorney General Eric Holder’s plan fell apart under intense political pressure. In April 2011, Holder announced that the case would be sent back to Guantanamo Bay, and the government’s prosecution would start afresh under the new commissions system. Under the system, commission prosecutors draft charges and send them to the Convening Authority, who in addition to an overall management role decides whether to refer charges for trial. Ret. Navy Vice Adm. Bruce MacDonald, then the convening authority, referred death penalty charges in April

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2012, and the defendants were arraigned in court at Guantanamo Bay about a month later, on May 5, 2012. That widely covered 12-hour session marathoned through defendant prayer breaks; defense teams’ voir dire of Pohl to probe for potential judicial bias; and a defense-side request to have the entire charge sheet read, which took about 2-1/2 hours. Defense attorneys also lodged numerous objections to the fairness of the proceedings that previewed written motions in the months and years to follow. In fact, defense teams began filing motions the month before the arraignment. One motion attacked the government’s proposed “presumptive classification” guidelines that would make any defendant statement classified unless cleared by an original classification authority, which defense attorneys claimed was both unprecedented and unworkable. The government later abandoned this position as Pohl fashioned his protective order for how the parties are to handle classified information in the case. But that order – now in its third amended form – has remained a subject of litigation. Three of the defense teams did not sign the order’s “memorandum of understanding” regarding the handling of classified information until late 2015, and they did so with written reservations preserving their objections for appeal. Another pre-arraignment motion sought to have the case dismissed for “defective referral.” The motion alleged that the convening authority did not give the defense teams enough time and resources to meet with their clients and assemble information to make mitigation arguments against the referral of death penalty charges. Defense teams did not present

Cheryl Bormann, lead defense attorney for Walid bin Attash. Image by Joint Task Force-Guantanamo.

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their final arguments on the motion – armed with supplemental information from the Senate Torture Report – until Oct. 30, 2015. Pohl denied the motion to dismiss on Dec. 29, 2015. The presumptive classification and defective referral motions were the earliest from the defense teams. By the time the Mohammed team filed its motion alleging improper destruction of CIA black-site evidence, in May of this year, the number of defense pleadings and supplements were so far into the thousands they were hard to track. In their response pleading to the destruction allegations, prosecutors accused the defense of “a scorched-earth litigation strategy.” “Their goal is not acquittal in this case; their goal, and their entire defense strategy, is that the case never, ever be tried,” prosecutors wrote. “They seek to advance this goal by attacking and litigating every possible thing imaginable.” Some litigation does seem far afield from the case’s core issues, at least at first glance. This has bothered observers, including traveling victim family members, who have generally been impressed by Pohl but wondered if he is being a bit indulgent. The record for appellate review will be enormous. Any case with a guilty verdict goes to the U.S. Court of Military Commission Review. Either side can then appeal to the U.S. Court of Appeals for the D.C. Circuit, and then to the U.S. Supreme Court. Significant parts of the past year were consumed by witness testimony and oral arguments on a defense motion to ban female guards of Joint Task Force-Guantanamo from touching the defendants on their way to legal meetings and court. Pohl issued a temporary ban in December 2014 and defense lawyers wanted him to make it permanent, claiming that the touching by female guards violated their clients’ religious beliefs and reminded them of sexual humiliations from past torture. Pohl eventually sided with the government and lifted the ban this year. A few victim family members compared the defense teams’ painstaking witness examinations and presentations on the topic to, well, torture. Robert Regg, a retired New York City firefighter severely injured when the twin towers collapsed, said at the February session’s concluding press conference that he felt “emotionally waterboarded” by the defense efforts. (He overall praised his experience of attending the hearings.) Prosecutor Swann said during his closing argument that the defense was engaged in “a lame effort” to “drown out the realities of Sept. 11.”


From the defense perspective, however, the femaleguards issue cut to the core of the case by directly relating to the past torture of the defendants, as well as to the current conditions of confinement that negatively effect their ability to participate in their defense. “Mr. Swann’s trivialization of the tenets of one of the great religions of the earth is almost breathtaking,” Nevin told Pohl in his closing argument on the female-guards issue. The female-guard motion is one of several in which the specter of “unlawful influence” has been raised, as senior Department of Defense officials – including Secretary of Defense Ashton Carter – publicly criticized Pohl’s temporary female-guard ban. Defense lawyers saw a clear example of Pohl’s superiors in the military attempting to influence the case. (Pohl left his ban in place a little longer as punishment for what he termed “entirely inappropriate” comments.) Unlawful command influence is a common legal concept in U.S. military law; it has been referred to as “the mortal enemy of military justice” by the military’s appellate court, the U.S. Court of Appeals for the Armed Forces. The Uniform Code of Military Justice bars anyone subject to the code from attempting to influence a court-martial. The 2009 MCA similarly bars “unlawful influence,” but defense lawyers say such behavior has been rampant in the 9/11 case. Defense lawyers first filed a motion to dismiss for unlawful influence shortly after the 2012 arraignment, and updated it numerous times during its pendency, incorporating allegedly prejudicial comments against the defendants from President Obama and other officials. Mohammed’s military defense lawyer, Marine Maj. Derek Poteet, argued during oral arguments in December 2015 that too many “plainly inappropriate and reckless” comments have piled up – the bell cannot be “un-rung.” Poteet told Pohl that this case will be looked to for decades for “what is acceptable in military justice.” Ruiz, whose arguments can be colorful, compared the 9/11 case to a well of toxic waste that has been poisoned by repeated interference from a host of government officials and agencies. “We should not drink from that well,” he argued. Pohl rejected the unlawful influence motion to dismiss in April. He nevertheless agreed that some public statements could “taint the panel” of military officers that will eventually decide the case at trial. As a result, he will allow “expanded voir dire” and “liberal challenges”

during the panel-selection process – which is what prosecutor Swann had proposed in his arguments. More generally, defense attorneys say they have an ethical and sacred obligation to litigate as aggressively as possible on behalf of any defendant facing the death penalty. They also see the system as fundamentally unfair and confusing, often noting that it’s even unsettled whether the Constitution applies to the proceedings. Two months after the arraignment, defense attorneys filed a motion asking Pohl to find that the Constitution “is presumed” to apply to the commission. The judge ruled in January 2013 that the issue was “not yet ripe for decision,” agreeing with the government’s position. David Glazier, a former Naval officer turned academic who is critical of the system, describes the system as “court-martial lite” and says it abounds with opportunities for legal challenges. “In federal courts and courts-martial, the procedures are well settled; judges and attorneys know how to conduct those trials expeditiously,” Glazier, a professor at Loyola Law School in Los Angeles, said in an interview. “In the commissions, in contrast, literally every aspect is untested; judges are having to make almost everything up as they go, with attendant challenges by one side or the other to almost everything that they do.” Critics of the commissions system also take issue with the admissibility of hearsay evidence – which is allowed with greater latitude in the commissions than in regular federal courts or courts-martial – and are skeptical that statements by the defendants and other witnesses taken without Miranda warnings are truly free of coercion. On these issues, Martins echoes his commanderin-chief by praising the federal courts as the best option in most situations but not appropriate for certain cases involving terrorists captured overseas. In these situations, Martins says, commissions can fill “a narrow but important role.” “The Miranda and confrontation requirements in federal court are appropriate rules in domestic trials of alleged domestic criminals and terrorists,” Martins says. “But such rules are not only unprecedented in situations of genuine hostilities; they are not wise in such situations.” Beyond these constitutional issues are a quagmire of more practical constraints. Defense attorneys, for example, feel burdened by their inability to talk on the phone with their clients, a restriction that requires

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in-person client meetings at Guantanamo Bay. The teams have to balance these meetings and oral arguments with investigative trips to various regions of the world to prepare their clients’ defense. They also oppose the prosecution’s motion to prevent the defense teams from distributing client statements – what the government views as potentially constituting “propaganda” – to third parties. Defense lawyers say this will significantly inhibit their ability to work with nongovernmental agencies and experts that might be able to assist their clients. More than anything, the defense teams contend that many delays – and much of the litigation – have stemmed from government intrusions into the functioning of the defense teams. They have made regular complaints that the Joint Task Force guard force has improperly seized privileged attorney-client materials. Early in 2013, the defense teams also learned that the attorney-client meeting rooms had listening devices disguised as smoke detectors. (The listening devices were removed, and prosecutors said they never eavesdropped on conversations.) Attorneys and Pohl alike were troubled by an infamous episode, from a January 2013 hearing, that highlighted the murky layers of intelligence that may continue in the courtroom and legal proceedings. In the “red light incident,” the courtroom’s security light went off as Nevin was discussing a motion to preserve evidence in overseas detention facilities. But Pohl and his security officer had not pressed the censor button, which cuts the audio and video feed to the viewing gallery, leaving many to assume the CIA did it remotely. (Pohl later said an “OCA” had cut the feed and that such outside control would not be permitted in the future.) The most problematic event for the proceedings was an FBI criminal investigation into the team led by Buffalo, N.Y.-based attorney James Harrington, who represents Ramzi bin al Shibh, also alleged to have funneled money to the hijackers. According to the charges, bin al Shibh also wanted to be a hijacker but later became Mohammed’s “main assistant” for the plot after he was denied numerous visa requests for travel to the U.S. The FBI investigation into bin al Shibh’s team looked into information that defense members provided to their client and relayed from him to an outside party. Harrington learned in April 2014 that federal agents had turned one member of his team into an informant. The unlikely twist also caught Martins off guard. He assigned a Justice Department special trial 72

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counsel, which grew to a full “Special Review Team,” to handle the inquiry. Prosecutors were “walled off” from the proceedings and not permitted in court whenever the Special Review Team attempted to hash out with Pohl and the defense lawyers what was going on with the probe. The investigation effectively stalled any real progress in the case for over a year – from about April 2014 to October 2015 – when the Special Review Team finally convinced Pohl that the investigation into Harrington’s team had been closed, without any charges being filed. One especially bizarre hearing during that phase came in February 2015, when bin al Shibh and three of his co-defendants recognized the interpreter at his table as someone who worked at a CIA black site. The hearing was cancelled as it began. A defense motion to compel the government to produce the former interpreter for a deposition remained pending as of this publication. Marine Brig. Gen. John Baker became the chief defense counsel in July 2015. In this role atop the Military Commissions Defense Organization, Baker does not represent any of the defendants but rather supervises and consults with the teams and helps get them resources from the convening authority. That dynamic itself is a problem, he says, in that the authority responsible for referring charges also makes decisions about how defense teams are staffed and what experts they can hire. But Baker sees the intrusions into the defense function as the biggest problem in the case. “Everybody talks about how this is perhaps the most important criminal trial in United States history,” Baker said in an interview at his Guantanamo Bay office in June. “You would think that if we are going to put our system of law on display internationally, we would want to demonstrate how fair we are. And we certainly aren’t.” The two-week session in October 2015 proved to be productive by moving past – at least for a time – the potential conflict-of-interest issue resulting from the FBI investigation, which had been the biggest roadblock in the case. But even that set of hearings began with an “only in Gitmo” series of events and delays when bin Attash told Pohl that he might want to represent himself. Though allowed for by the 2009 MCA, going pro se is almost never a good idea. The challenge is heightened in a death penalty commission at Guantanamo Bay. Defendants do not have access to crucial clasContinued on pg. 75


David Glazier: A Discussion on the History of the Military Commissions Those who knew Prof. David Glazier during his college days at Amherst assumed he would go to law school, and they were right – eventually. He first spent two decades with the U.S. Navy, seeing a significant part of the world and gaining an impressive array of experiences, including those that would later inform his law studies at the University of Virginia and his scholarship afterward. Glazier teaches international criminal law, law and the use of force, and the law of war at Loyola Law School in Los Angeles. He has authored six law journal articles and one book chapter on the military commissions. Lawdragon: When President Bush first implemented commissions by executive order in 2001, where did this idea come from? What’s the lineage? DG: Military commission proponents always say that these tribunals date back to the Revolution, but the reality is that they were first created by the Army’s commanding general, Winfield Scott, who trained as a lawyer before joining the Army, during the Mexican War. The Articles of War (forerunner of the Uniform Code of Military Justice) in effect at the time only provided for the punishment of militaryspecific offenses, such as desertion, disobedience of a lawful order, cowardice in the face of the enemy, etc. Congress assumed that the Army would only be used defensively within the United States, and so they had mandated that soldiers accused of common crimes be turned over to local civil authorities for prosecution. But no invading army will ever allow its soldiers to be tried by local enemy civilian courts, and this left no way to punish U.S. soldiers for depredations they committed against Mexican nationals, including even murder and rape. LD: So it was for his own men. DG: Yes, Scott used what he called “martial law” authority to create a new “common law” tribunal – the military commission, for the initial purpose of trying Americans, not foreigners. Scott’s commission followed existing court-martial procedure, but substituted a set of common-law crimes listed in military orders in place of the statutory set of offenses included in the Articles of War. It is thus worth noting that military commissions were never intended to be limited to trying foreigners, nor were they intended

Photo provided by Loyola Law School, Los Angeles.

to be a downward departure from the due-process standards provided by courts-martial. They differed only in terms of subject-matter jurisdiction. Military commissions were used extensively during the Civil War, and the Philippine Insurrections, continuing this practice of rigorous adherence to court-martial practice; they received the same post-trial review and a number of convictions were overturned on “technicalities” for failing to apply fine points of military justice procedures or rules of evidence. LD: What are the more contemporary precedents? I know you have written about the case of the eight Germans who attempted sabotage on U.S. soil in 1942. DG: The eight Nazi saboteurs who landed in New York and Florida were quickly captured by the FBI with the assistance provided by one of the group leaders who turned himself in. Although the Justice Department initially intended a federal trial, it quickly discovered that there was no adequate crime available on the books to charge them with; prosecutors were literally looking at having to resort to offenses like immigration violations for entering the country without passports, and being unregistered agents of a foreign government in order to qualify for a sentence of even just a couple of years in prison. Attorney General Francis Biddle thus proposed to President Roosevelt that he use a military commis-

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sion based on a common-law application of the law of war which could impose death sentences. Unfortunately, Biddle also proposed that they depart from the historical practice of faithful adherence to court-martial procedure, and essentially allowed the commission to make up its own rules as it went along, and admit any evidence which the commission panel deemed “of probative value to a reasonable man.” Given that the FBI had conducted a thorough investigation and had an impressive collection of damning evidence, including voluntary confessions by each of the eight men that would have been fully admissible in federal court, Biddle’s legal shortcuts were wholly unnecessary. LD: What is the significance of Ex Parte Quirin – the 1942 U.S. Supreme Court case that upheld the jurisdiction of the U.S. military tribunal over the saboteurs – when looking at the support it may provide for, or limitations it places on, the use of military commissions? DG: Although FDR’s order establishing the military commission purported to foreclose judicial review, lead defense attorney Kenneth Royall – a former Felix Frankfurter protégé at Harvard – had the wherewithal to approach several Supreme Court justices and argue the importance of reviewing the constitutionality of using a military commission when ordinary civilian courts were open. Although the Court was in summer recess, and Royall had not even filed a habeas petition in a district court yet, the justices nevertheless agreed to convene a special July term while the military commission proceedings were still ongoing. The decision, styled Ex Parte Quirin, ultimately upheld the commission on the basis that the eight Nazis were enemy belligerents in wartime who were charged with an actual violation of the law of war, in a theater of war. At least one defendant was a U.S. citizen; the Court held that his affiliation with the enemy was no bar to trial. The Quirin decision was relied upon by key Bush advisers when they proposed the post-9/11 commission resurrection (the last prior commissions took place in the immediate post-WW II years), but they really failed to read it carefully or apply it in good faith. Bush’s order borrowed most of FDR’s language essentially verbatim, even including the bar on judicial review, despite the fact that the Court had unanimously rejected that part of Roosevelt’s approach just by meeting to hear the case. And in taking ordinary U.S. crimes such as “conspiracy” and “providing material support to terrorism” and attempting to charge them 74

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as war crimes, they ignored Quirin‘s explicit holding that the charges must include a recognized violation of the international law of war in order for the commission to have valid jurisdiction. Read the full Q&A at www.lawdragon.com/2016/05/01/ lawyer-limelight-guantanamo-david-glazier.

Current Commissions

Of the detainees remaining at Guantanamo Bay (a total of 60 as of Nov. 8, 2016), seven individuals across three different cases are facing charges before military commissions:

The 9/11 Case

Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al Shibh, Ammar al Baluchi and Mustafa al Hawsawi face the death penalty for their alleged roles in planning and financing the Sept. 11 terrorist attacks.

The USS Cole Case

Abd al Rahim al Nashiri faces the dealth penalty for allegedly orchestrating the bombing of the USS Cole in 2000.

The case against Abd al Hadi al Iraqi

Hadi faces a life sentence for his alleged role as a senior al Qaeda operative in Afghanistan and Pakistan. (His lawyers claim the detainee’s name is Nashwan al Tamir.)

Convictions

Two detainees (Majid Khan and Ahmad al Darbi) have pled guilty in military commissions and are awaiting sentencing, and one detainee (Ali Hamza al Bahlul) was convicted in 2008 and received a life sentence, though the conviction was vacated on appeal. The government appealed before the full U.S. Court of Appeals for the D.C. Circuit, which upheld the conspiracy conviction.


sified information or to a law library, and they cannot pick up a phone to talk about legal issues with whomever the judge appoints as standby counsel. Bin Attash complained to Pohl that his lawyers did not adequately explain to him what the self-representation process would entail. But Bormann said you couldn’t exactly blame her. “This is like no other court,” Bormann explained. “So I can’t possibly advise Mr. bin Attash of his rights because I, frankly, don’t know what they are.” Pohl concluded that he would need to draft a very strongly worded admonishment for bin Attash about the perils of self-representation, which the judge would use for a colloquy with the defendant and any other who might later consider going go pro se. The next day, after Pohl had distributed his proposed “trial conduct order,” the government expressed satisfaction with the document, offering just a few minor proposed revisions. Another of the defense counsel, Connell, saw a problem. He told Pohl that he had previously been briefed by the government on a top-secret program, referred to as an Alternative Compensatory Control Measure (ACCM), that he believed would be relevant to a detainee’s ability to represent himself. Connell had a classified filing in his hand that he wanted to submit to the court on the topic, but Pohl had not been “read into” the program, nor had the other defense teams. “Your Honor, could I double-wrap the document and submit it to the trial judiciary to be kept in a safe?” Connell asked. Pohl didn’t want it: “We will get to it when we get to it, but I don’t want to take custody of a document I’m not authorized to read.” The judge and other defense teams were briefed, or “read into,” the ACCM that week, which led to additional revisions of the bin Attash admonishment. (The Miami Herald later reported that the program appeared to involve extensive surveillance within the Camp 7 detention facility. “You must assume anything you say in Camp 7 is not confidential and will be disclosed to the U.S. Government,” Pohl edited into the admonishment.) Naturally, because this is Guantanamo, the ACCM read-ins created yet another sub-issue: Putting aside the oddity of a defense counsel but not the judge having been read in, what members of the defense teams can be read into the program?

On Oct. 22, after the additional read-ins, Ruiz told the judge that the government was refusing to read-in certain members of his team, even though they had the full security clearances and signed the “memorandums of understanding” to the judge’s protective order. Martins told Pohl that not every defense team member gets read into this particular ACCM, that it was based on a “need to know” standard. Ruiz was flabbergasted at what he saw as another government intrusion. “That gives the government a direct reach into the defense and into defense strategy as to who has and who needs to see this information,” he argued. Litigation over who can get read into ACCMs is pending as of this publication. Defense teams have also made numerous complaints over the past year that some team members have not yet received the required top-secret and special access program (SAP) clearances to review all case information and meet with their clients. As a result, these lawyers and support staff can only perform limited duties on the case. “The length of time that it takes to get a security clearance is unacceptable,” Baker said. “I have talked to everybody that I know about this, but it is like talking to a wall.” Ruiz has wrapped up many of the perceived interferences and other complicating factors into a somewhat global “motion to dismiss because national security considerations make a fair trial impossible.” He first filed the motion last year and has updated it since, including recently with the allegations over the allegedly improper destruction of CIA black-site evidence. As it turned out, bin Attash decided not to represent himself. Instead, he has made repeated efforts to fire his lawyers and have new ones appointed. Pohl has met privately with the defendant and his team and determined that bin Attash has not met the standard of “good cause” to sever the attorney-client relationship. After one such order, at the start of the two-week session in February, Bormann surprised the courtroom by approaching the podium to say that she herself wanted to withdraw from the case. “The trust has been completely eroded,” Bormann said of her relationship with bin Attash. She cited his past torture and the litany of government intrusions, all of which had irreparably damaged the attorneyclient relationship.

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Bormann added that her team had failed to get bin Attash a phone call with family members, even after his mother died. Pohl interrupted her, saying she was getting into another “global attack on the system.” “I understand that, but understand me here,” Bormann said. “We are talking about little pebbles, each little pebble being added into a glass of water so eventually there is no more water left.” Pohl denied her request, but the issue lingers. In the July session, bin Attash reacted angrily to the presence of Bormann and her co-counsel, Michael Schwartz, and had to be removed from court one day. The solution agreed to by the lawyers, Pohl and the government was that bin Attash’s lawyers would sit at the back of the court whenever the defendant was present. Few observers believe that Bormann actually wanted to leave the case, or that Pohl would seriously entertain the request that day. Instead, her plea was widely seen as an expression of sympathy for her client – an apology of sorts for the system – and another opportunity to assert that government interferences were preventing effective assistance of counsel, as defense teams have also argued in written motions. Many of the defense lawyers have grappled with the same fundamental question of whether to participate in a system they see as illegitimate and unfair, or to leave, which would be a principled stand but likely put their clients in worse positions. The other four defense teams currently have more cordial working relationships with their clients, but establishing and maintaining trust has been a challenge for all of them. That is the common motivation underlying many of the motions brought by defense lawyers, and why those sympathetic to their often unpopular work view them as bringing greater legitimacy to the system.

ment. It was not clear if they would participate in their defense or if they would adopt their approach from the Bush-era commission, when they welcomed their martyrdom. In one pro se filing from that case, the defendants said that they accepted the charges as “badges of honor.” But the biggest difference from the 2008 commission has been their decision to work with their lawyers and see this case through; even bin Attash, in his current disgruntled state, continues to meet with some members of his team. Not a whole lot is known about the conditions of the Camp 7 facility that houses the 15 high-value detainees, all formerly held by the CIA, including the five 9/11 defendants. As of this writing, the U.S. is holding a total of 60 individuals on Guantanamo Bay as law-of-war detainees. Joint Task Force-Guantanamo, or JTF-GTMO, which runs the detention facility, has conducted media tours of Camps 5 and 6 (Camp 5 was recently consolidated into Camp 6 with the reduced detainee population), but Camp 7 is off limits. Defense attorneys and the International Committee of the Red Cross (ICRC) can visit Camp 7. Court testimony has established that each detainee at Camp 7 has a personal recreation yard on the back end of his cell, and that detainees can talk to each other in raised voices. They also get time in a common rec area and a media room. But it’s clear the defendants enjoy coming to court, which gives them an opportunity to socialize. Pohl requires the defendants to attend the first day of each session, at which point they are advised of their right to skip subsequent days. Al Hawsawi, with his discomfort in transport and sitting from the rectal injury, is the most likely to stay at Camp 7.

IV. The Scene

Members of the guard force typically begin bringing the defendants in, one at a time, shortly before 8:30 a.m., entering on the left side of the courtroom when facing the bench. Guards walk on either side of the defendants, holding their shoulders and wrists, and walk them to their chairs on the outer left side of the defendant tables. At their seats, the defendants are not shackled to the floor, though the court has that capability. Mohammed, at the front, followed by bin Attash and then bin al Shibh, generally prefer to wear paramilitary-style camouflage jackets or vests (their right to do so was litigated). Al Baluchi, at the fourth table from Pohl, and al Hawsawi at the back closest to the viewing gallery, wear loose-fitting tunics or robes.

The defendants refused to enter pleas or answer Pohl’s questions at their chaotic May 2012 arraign-

As the official court time of 9:00 a.m. approaches, the large courtroom has the feel of a friendly office

Occasionally, in their own way, prosecutors faintly echo this sentiment, as Ryan did when he stood up to register the government’s objection to Bormann leaving the case – and to reject any notion that this was a situation of ineffective assistance by defense counsel. “For four years, no one in this courtroom – no one – can say she has not been a very zealous and competent counsel on behalf of Mr. bin Attash,” Ryan said.

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The courtroom where high-value detainees are tried. Photo by Joint Task Force-Guantanamo.

get-together, particularly on the crowded defense side of the room, as staff and defendants greet one another and chat amiably among themselves and their clients. The exception these days is bin Attash. But even on July 21, when he was removed from court, the defendant seemed to be having a pleasant conversation with Mohammed before his attorneys approached the table. The defendants talk to each other regularly during the proceedings. Pohl allows this, though attorneys acknowledge it can be distracting. “Mr. Mohammed, I don’t mind you discussing with your co-accused,” Pohl said during one of the October sessions as Connell was trying to give oral arguments. “But please keep your voice down.” “Thank you,” the judge added. Pohl always sets the lunch break based on the scheduled prayer time. The courtroom was built to accommodate six defen-

dants, as the government also initially sought charges against Mohammed al Qahtani, a Saudi national who was suspected of being the 20th hijacker. But Susan Crawford, the convening authority in 2008, was convinced that he was tortured and so refused to refer charges for trial. Al Qahtani remains in detention at Guantanamo Bay. The extra table and chairs at the back of the court, behind the al Hawsawi team, come in handy for overflow defense staff and, more recently, for bin Attash’s lawyers. That’s also where chief defense counsel Baker has sat to observe proceedings. Reflecting the hybrid nature of the commissions system, both sides of the room have a mix of men and women in military uniform and civilian business attire. Female civilian members of the defense teams will wear head coverings if their clients are in court. Bormann wears a black abaya (a full-body cloak) at all times, except on the rare days when none of the defendants is in attendance. Gary Sowards,

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a longtime death penalty lawyer from California who assists on the Mohammed team, stands out by going tie-less. Harrington, the elder statesmen of the crew, might show up to court in a bowtie, then later appear at the post-hearing press conference in sandals and shorts. Those who work on the commissions have ample opportunity to run into each other outside court. Pohl, his staff, the prosecution and defense teams, victim family members, NGOs and the media all take the same three-hour chartered flight out of Joint Base Andrews, in Maryland, to Guantanamo Bay Naval Base. The judge and the victim family members sit in first class; the media sit in the far back; the other groups are in between. Everybody except the judge takes the same 20-minute ferry ride from the Leeward side of the base, which houses the air terminal, to the Windward side, which provides access to the main parts of the base and Camp Justice, where the court proceedings are held. (Pohl takes a fast boat.) Large numbers of the prosecution and defense teams – including the bosses, Generals Martins and Baker – sleep in trailers on Camp Justice, while media and NGOs stay in nearby tents on the complex. Other lawyers and staff and victim family members stay in townhouse or hotel-style lodging elsewhere on the base. Camp Justice itself has become the subject of litigation over concerns that the area, a former airstrip, has too many cancer-causing agents. Baker temporarily halted his staff from sleeping in the FEMA-like trailers when elevated formaldehyde levels were disclosed, then rescinded the order once he was convinced that base staff had improved the airflow within the trailers. The bin Attash team has litigated, so far unsuccessfully, to halt the proceedings until the Navy completes a full health assessment of Camp Justice.

all the comforts of a small town: cafeterias, fast food, a Walmart-like store called the NEX (Navy Exchange), a bowling alley, an athletic complex, two movie theaters and a handful of bars and restaurants, not to mention a nice marina and opportunities for snorkeling and fishing. JTF-GTMO is a relatively recent tenant, leasing its space from the Navy. With about 4,000 service members and civilians on the base who are not part of the task force or the court, it is occasionally possible for temporary guests to blend into plain sight. Court participants and observers can avoid each other outside of the court complex, though it takes some effort and planning. One could walk into the base’s Irish bar, O’Kelly’s, on any given evening and see a series of tables – one with defense team members, another with prosecutors, then NGOs, victim family members and one with the media. Given the intensity of the case’s subject matter, the environment can feel a little claustrophobic – and that’s for a one- or two-week hearing. A number of people who work on commission cases are concerned that a long trial could feel overwhelming for some participants. They point out that a small town can be a clever backdrop for courtroom drama in novels and movies, but even fictional small town trials don’t wrestle with the worst-ever attack on U.S. soil and details of torture during the day, then send their participants to the same bars and restaurants at night. The different components of the traveling court system also meet with each other intentionally on the island. The prosecution meets separately with the media, NGOs and victim family members, and defense teams will do the same. Defense lawyers say they get the full range of emotions and comments from victim family members, from “we understand and appreciate what you’re doing” to palpable anger.

Anyone getting sleepy during Schwartz’s long presentation likely became wide awake when he said that an initial health report found a potential high frequency in soil samples of a type of benzopyrene that he referred to as “a highly carcinogenic, nasty material that causes scrotal cancer.”

At the end of the hearings, all groups take the same chartered flight for the return to Andrews, though some defense attorneys will stay on to meet with their clients. On one return flight this past year, defender Ruiz and prosecutor Ryan could be seen standing opposite each other in the aisle, several feel apart. Ruiz had to move forward; Ryan had to head back to the toilets. Who was going to move? Who finds a partially empty row to slide into to let the other pass? Ryan has a height advantage, but Ruiz is younger and a serious athlete. Both intimated that they weren’t moving. Then they chuckled and slid by each other, each patting the other on the shoulder.

The naval base itself has existed since 1903 and has

Welcome to the reality of a traveling court system.

“I’m not comfortable being in this room and I’m not comfortable bringing a team of typically 12 to 15 people and asking them to be here on behalf of my role as a defense attorney and on behalf of Mr. bin Attash,” Schwartz told Pohl on June 1.

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Continued on pg. 81


The Chief Prosecutor: Army Brig. Gen. Mark Martins

Army Brigadier General Mark Martins knew that being the top prosecutor of the controversial military commissions was not for the thin-skinned when the assignment came his way in 2011, while he was serving in Afghanistan. Among his many past assignments, he had co-led a task force on detention policies and helped draft the 2009 Military Commissions Act, which replaced earlier legislation from the Bush administration. Lawdragon: While here, you begin your press statements with a story of a victim family member, and you also meet with them during the week. Can you talk about the relationship with them – does that affect your approach to the case in any way? Brig. Gen. Mark Martins: For prosecutors, reaching out to victims and family members of the fallen is a labor we undertake with our hearts and not purely out of legal obligation. But it is also a formal duty, and very much part of the representation of the United States. Victim and Witness Assistance is formalized in statutes and rules, and we thus have an obligation to seek out those who have been traumatized, victimized, and wounded, and to figure out the best ways to give them information about the case. If you have wounded individuals who were at the scene, they also can be, in some cases, actual fact witnesses as well. Securing witness testimony, as with all evidence, is a prosecutor’s responsibility. We also must implement Victim-Witness legislation that is intended by Congress to ensure that the victims of crime are not forgotten by what is a necessarily analytical, fact-based, and empirical process that might otherwise come across as bureaucratic and heartless to the very people we’re sworn to protect. It’s impossible not to feel compassion for these victim family members who come to Guantanamo to observe, so it comes naturally to me and to all of us on our team to reach out to them whenever we can. LD: Can you talk a little bit about the lead-up to this job – you were involved in a task force related to Guantanamo policies, is that right? BGMM: Sure. In January 2009, the President established three interagency task forces in regard to Guantanamo and detention policy more generally. I was appointed to be the day-to-day Department of

Photo by Joint Task Force-Guantanamo.

Defense representative for Secretary [Robert] Gates and for [the then-General Counsel of the DOD] Jeh Johnson, on one of the three task forces, specifically the one assigned to develop and make recommendations on detention policy. Those of us on the Detention Policy Task Force worked closely with the Guantanamo Review Task Force, which examined the files of the approximately 250 or so then-remaining detainees, and with the Interrogation Policy Task Force, which focused, as its name suggests, upon interrogation policy. The Detention Policy Task Force had a forward-looking focus. We asked, “What are the best policies, from arrest or capture, to detention under various legal authorities by our forces or those of allies, following through to trial or other disposition? Then, where and how do we detain the person ultimately if he’s been tried and sentenced?” In other words, we examined the life cycle of the detention of an individual who comes into our custody because he was involved with international terrorism and hostilities. LD: How long did that last? BGMM: For me it was an intensive 10-month period. And I knew from early on that I would be on the Task Force for less than a year because only months after reporting to the Department of Justice building where all of the Task Forces were required by

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Executive Order to convene, I was promoted, and then essentially drafted, to go to Afghanistan to command a new task force there.

giving them modest training, security, and support, and getting them set up. They were prepared to work and to sacrifice for their country.

I went to Afghanistan, in part, to help implement the detention policy that we had developed and recommended. At this point, though, I thought that my involvement in traditional judge advocate legal work was likely done. My two years in command in Afghanistan drew upon legal training, but the assignment was operational. Then toward the end of the two years – in mid-2011 – Jeh Johnson called to inform me that the term of the previous chief prosecutor was coming to an end.

LD: What was your thinking when you got the call from Jeh Johnson about being chief prosecutor?

LD: What were you doing in Afghanistan at the time? BGMM: I had been interim commander of Joint Task Force 435, the United States organization responsible for law of war detention. Then, I commanded a new unit established by Secretary Gates in September of 2010 called the Rule of Law Field Force. It later became the NATO Rule of Law Field Support Mission when some 50 NATO and ISAF [International Security Assistance Force] countries voted at a North Atlantic Council meeting to make it a NATO-wide mission as well. Given how potentially divisive and controversial western military involvement in rule of law development can be, it was no small thing for such diverse nations to agree that putting military capabilities in support of Afghan-led law enforcement, judicial, corrections, and civil dispute resolution support was a wise move. In the end, these nations, led by Afghanistan itself, agreed that military logistics and security over the near term were essential to transitioning rule-of-law functions to Afghan control as soon as possible and to denying Afghanistan as a safe haven for the Taliban and the likes of al Qaeda. The command benefited from formal Afghan government approval, as well as from unanimous NATO and ISAF endorsement. We worked in 14 provinces and some 60 districts where there had been a vacuum in government law enforcement and dispute resolution. We found that if we could help the Afghans populate local government ranks with a few police investigators, prosecutors, judges, and trained corrections personnel – not perfection, but just a decent presence in positions of authority – then the Taliban would poll in the low single digits. It was a tremendous mission and a great honor to lead it. We were taking Afghan prosecutors, Afghan defense counsel, and Afghan judges and others, 80

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BGMM: When Jeh Johnson called me up, although it was unexpected, I had to acknowledge that my training and previous assignments made me eligible. I had been a prosecutor. I had been in armed conflict. I understood the law of war crimes, having taught the discipline at the Judge Advocate General’s school in the 1990s. And then it was true that I had done the detention policy work. It wasn’t one of those pre-assignment situations in which I could say, “This isn’t a good fit.” To be clear, a military assignment is not something I would ever actually resist, as the needs of country always come first, but this was an instance in which my past service and qualifications had led Mr. Johnson to call on me. Every duty assignment in a military uniform of the United States is a privilege. Though I did not foresee the job, it has enabled me to serve alongside some of the most talented and determined public servants I have ever known. It often works out that way. I have never had an assignment I’ve regretted. LD: You could have built your team a couple of different ways. You decided to keep on people who have been with the case for a while. Why? BGMM: We are fortunate as a country that experienced and talented prosecutors with federal court as well as court-martial experience have committed to staying on. Different leaders assume leadership differently. My approach over the previous three decades had not been to dive into a diverse organization with a complex mission and immediately start making dramatic changes. Over time, a pattern of carefully weighed decisions and efforts to lead by example make their imprint. Even as we are standing on the shoulders of all who came before us, we have done many things together to build a team over the past four years that is as capable and as cohesive as ever. In addition to prosecuting trial counsel, we have paralegal specialists, analysts, and others who also are making critical contributions, and their families are making sacrifices. The bottom line is that we have a great blend of skills and experience and dynamism. Read the full Q&A at www.lawdragon.com/2016/03/24/ lawyer-limelight-guantanamo-brig-gen-mark-martins.


V. Harrington and His Client’s

Vibrations

No one who travelled to Guantanamo Bay for the two-week session in October 2015 – the first to be held in several months – was especially confident that the case would finally move forward. Bin Attash’s surprise inquiry about self-representation was a distraction from the real issue that the session eventually settled into: the status of the FBI’s criminal investigation into the bin al Shibh defense team, led by Harrington, which apparently focused on how his team handled information going to and from the defendant. Remaining “walled off,” Martins’ team was not in court when a representative from the Justice Department’s “Special Review Team” told Pohl that the investigation into Harrington’s team was closed, without any charges being filed. The case could move forward after nearly a year-and-a-half of delays, according to the Justice Department team. “If we have indeed established, as we believe we have, that there is no investigation and not even a security-access issue, there cannot be a conflict,” attorney Fernando Campoamor-Sanchez said. Harrington and other defense lawyers had their doubts that the matter was so simple. Harrington pointed out to the judge that the government’s document attesting to the closed investigation contained the worrisome caveat “at this time.” Each defense team has a “defense security officer” – or DSO – a security specialist that advises the team on how to properly handle case information. In April 2014, the FBI met with the Harrington team’s DSO and entered into a confidential relationship with him. The DSO, an employee of SRA International – which contracts with the commissions – told Harrington of the meeting a few days later after consulting with his SRA supervisors. Harrington fired him, and the defense teams filed a joint emergency motion to abate the proceedings until they figured out what on earth was going on. “Where counsel’s duty of loyalty is potentially divided because counsel himself is under investigation, courts have not hesitated to critically examine the nature of the investigation and its impact upon the attorney-client relationship,” the defense teams wrote in their motion. Defendants are entitled to conflict-free counsel, which is potentially compromised if an attorney be-

Camp Justice houses the legal complex where detainees are tried. Photo by John Ryan.

ing investigated could be suspected of pulling his or her punches to curry favor with the government. The motion noted that the FBI asked Harrington’s DSO about all of the defense teams. Lawyers said that the investigation would have “a chilling effect” on the functioning of the teams. Later in 2014, Pohl ruled that a potential conflict did not exist for four of the defendants, but he held out bin al Shibh as a possible exception, given that the FBI had directed the bulk of its investigative efforts at his legal team. The FBI had also interviewed a linguist for the Mohammed team, but Pohl found that this could not have affected “trial strategy or intensity of effort” because the defense team did not know about the meeting until after that investigation was closed. Bin al Shibh’s situation required “further examination,” Pohl ruled. (He had earlier even decided to sever bin al Shibh from the case, citing both the conflict issue and pending litigation concerning the defendant’s mental capacity, but prosecutors convinced Pohl to hold off until the issues were resolved.) By the time the October 2015 session rolled around, both Harrington and Connell argued that they should receive more detailed discovery about the investigation – even if it was closed – before Pohl ruled on whether a conflict or a potential conflict existed. The judge sided with Campoamor-Sanchez, however: With the investigation closed, he could make a finding of no-conflict on the spot and the case could move forward. But Pohl ordered the Special Review Team to provide additional discovery on the past investigation, and he added that any of the affected teams, not limited to Harrington’s, could file new

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conflict motions in the future. (The judge also ruled during that session that bin al Shibh was competent to stand trial.) Reuters broke the story of one aspect of the investigation with an article explaining how a member from Harrington’s team relayed a message from bin al Shibh to his nephew in Yemen. Investigators were apparently concerned that the message to bin al Shibh’s nephew was “coded” but later determined it to be harmless. Nevin referred to the article in court during the October session, telling Pohl it was especially disturbing because defense lawyers have to meet with defendant family members in order to do their jobs. “It was found that Mr. Harrington wasn’t doing anything wrong, but I don’t know what the basis for that finding was,” Nevin said. “I don’t know how close Mr. Harrington was to a line. I don’t know what it would have taken for him to have been judged to have been on the other side of that line.” Over the past year, Harrington and his team’s lead military defense lawyer, Army Maj. Alaina Wichner, have been receiving discovery on the investigation into their team, per Pohl’s order. Harrington has not been shy in telling both Pohl and the media that what they are learning about the FBI’s infiltration into his team is alarming, and that the issue is far from over. In a meeting with reporters during the Spring session, Harrington and Wichner explained that the Reuters story covered one facet of the investigation. They added that investigators had also infiltrated their team to probe any improprieties with information going in the other direction – to bin al Shibh. In total, five members of the team – all long since fired – gave privileged information to investigators. Harrington said that there is a lot of “gray area” in the area of national security when it comes to deciding what information the client can see. None of the information given to bin al Shibh was classified, but apparently several team members were concerned enough to cooperate with the FBI. The investigation was obviously traumatic for the team and a major distraction to actual case preparation. Harrington said he credits Wichner with keeping what was left of the team together and also rebuilding with new additions to create an environment of trust. (As on other teams, some members continued to wait for security clearances 82

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that are required to meet with the client and see all case information.) Wichner has encouraged members of the team to express any concerns they have about security issues or the handling of information. Baker, the chief defense counsel, said the FBI investigation lingers over not just the bin al Shibh team but his entire office. “The people that work for me, their security clearance for many of them is their livelihood, and the idea that if they don’t follow the rules they can be justifiably held accountable is something that makes us extra cautious in what we are doing,” Baker said. “That very justifiable anxiety is made much worse by the fact that we have still never received the official guidance about what is classified and what is not that we are entitled to under the regulations.” No one wants to get fired, or go to jail and be disbarred, which is what happened to defense attorney Lynne Stewart after passing on information from Sheikh Omar Abdel-Rahman, her convicted terrorist client, to third parties. References to the “chilling effect” will occasionally find their way into the proceedings. During witness testimony over the female guards, in December, Nevin probed the then-commander of the detention center, Army Col. David Heath, about instances in which female guards are given different roles than their male counterparts. Heath acknowledged that it’s true that female guards cannot watch a detainee shower. Heath then told Nevin that, similarly, a female guard would not be allowed to see the defense attorney unclothed. “It makes me a little uncomfortable that you imagine me as a detainee,” Nevin responded. Despite the gravity of the case, almost every court session has some exchange that leads to laughter in the viewing gallery – and that was one of them. But Nevin wasn’t smiling. Harrington has quipped a few times that FBI agents must have been excited about the possibility of nabbing a veteran defense attorney, particularly one representing a 9/11 defendant. But it’s unlikely many people who work for the traveling court system would enjoy seeing Harrington go, not least of all Pohl, who seems to get a kick out of the affable and proudly Irish-American partner of Harrington & Mahoney. Harrington has been practicing since 1969, after graduating from the law school at the State University of New York at Buffalo.


Inside the detention zone, which is a short drive from Camp Justice. Photo by John Ryan.

Harrington has generally left the long and technical, or long and impassioned, arguments to the other lead attorneys, and is more likely to take his turn at the podium offering a relatively brief complementary argument. During the female-guard litigation, Harrington compared his client’s religious beliefs to his own Irish-Catholic parents banning the family from eating meat. Pohl corrected him: You mean just on Fridays, right? “Yes, we did eat meat on other days,” Harrington said. “Every other day I should say. Overcooked.” “We are Irish,” Pohl observed. “That’s the only way to eat it, Judge,” Harrington said. Then he made his point: We cannot fully understand all fixed religious beliefs in the world. He said that his mother found it “heartbreaking” when he merely inquired why he couldn’t eat meat on Fridays, and she struggled with the issue when the Church lifted the Friday ban.

“It doesn’t matter whether we agree with the reasons behind it,” Harrington argued. “It’s a religious belief, and we are not here to make that kind of a judgment.” Bin al Shibh also seems to want Harrington to stick around, given that the attorney is relentlessly litigating his concerns over his treatment at Camp 7. Though he often stays in the background, Harrington has played a starring role in two of the more exciting court days this past year: on Feb. 24, when his client testified in court about alleged mental torture at the Camp 7 facility; and on June 2, when fellow Camp 7 detainee Hassan Guleed (who is not charged before the commission) testified to support bin al Shibh’s claims. Those days highlighted another of the case’s longpending litigation series, that involving bin al Shibh’s claims that the JTF guard force is subjecting him to noises and vibrations as a continuation of the torture from the CIA black sites. Harrington’s team filed the first motion complaining about the alleged mistreatment in April 2013.

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On Feb. 24, bin al Shibh walked to the witness stand, flanked though untouched by guards. Pohl ordered that he would remain free of shackles on his short walk to the witness box on the judge’s left side. Harrington later said that it was the first time his client has walked freely – with so many unshackled steps – since his capture on the one-year anniversary of the Sept. 11 attacks, in Pakistan in 2002.

James Harrington, lead defense lawyer for Ramzi bin al Shibh. Photo by John Ryan.

Prosecutors have suggested that the defendant is hallucinating, lying or hearing normal construction and maintenance noise in the detention facility. Pohl ordered the government and the guard force to stop the disruptive noises and vibrations if they were in fact happening. But Harrington has begun several court days over the past year telling Pohl the abuse is continuing, that his client is suffering badly and that he is often in a distracted state for court proceedings. A pending motion now seeks to hold the government in contempt for allegedly violating Pohl’s order. Most observers seemed to side with the government on this one, and assume that bin al Shibh may be suffering from the aftereffects of the black sites; his claims sound a little wacky. But Harrington has tried to chip away at the assumptions, alluding not only to the past torture at the black sites but also to all the unknowns about what might go on at Camp 7. In October, after Connell alerted everyone about the top-secret ACCM involving Camp 7 surveillance, Harrington told Pohl this program could be related to his client’s suffering. Maybe the guard force didn’t even know about the sounds and vibrations, Harrington said. How could that be? Pohl wondered. “They may be very sophisticated,” Harrington said. “They may be very low level. They may be just enough to set him off, just the same kind of things that happened to him years ago.” He added: “It’s a very, very sophisticated program, and it’s something that the ordinary person, such as a guard outside the cell with a steel door or something like that, may well not know anything about.” 84

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Bin al Shibh spoke calmly in accented but clear English during quick-moving direct examination by his lead defender. Harrington used the Senate Torture Report as the basis for a brief exchange about bin al Shibh’s past treatment, which included noises and vibrations at the black sites, before moving into how the treatment has continued at Guantanamo. (Bin al Shibh testified that the Senate report did not document all that was done to him.) At 10:08 a.m. the courtroom’s red security light began flashing. The video monitor switched to a “Please Stand By” message and all observers were ushered out of the viewing gallery for about a minute before open proceedings resumed. The last audio to reach the gallery before the interruption involved bin al Shibh starting to compare structural characteristics of the black sites with Camp 7. The testimony once resumed went smoothly, without the censor button being pushed. “Make all my life terrible, make it upside down,” bin al Shibh testified of the alleged noises and vibrations. “You cannot concentrate, you cannot read, you cannot sleep, you cannot pray, you cannot do any of this because of living with this condition day and night, 24 hours a day.” Bin al Shibh said that the noises take different forms – from banging on the walls of his cell to buzzing – while the vibrations feel like “sitting in a car with the engine on.” He said it’s common for the guard force to wake him swiftly after he appears to fall asleep, and that guards are often proudly defiant of Pohl’s order. He also said that the treatment can get worse when he complains. Harrington focused a series of questions on how the disturbances affect bin al Shibh’s ability to participate in his defense. The defendant testified that disruptions occur as he tries to work on his case and that they get worse in the days before and during legal meetings and commission sessions. He said he has cancelled legal meetings and decided not to go to court as a result of his sleep deprivation and anxiety.


Among those not buying his claims was Clay Trivett, a counterterrorism prosecutor with the Justice Department’s national security division. Of the prosecutors who do most of the arguing in court – including also Gen. Martins, Ryan and Swann – Trivett is the most boyish of the lot. But he brings a deep reservoir of experience, having been first assigned to the military commissions in 2003. He is also a Reserve JAG Lieutenant Commander in the U.S. Navy. Under cross-examination, bin al Shibh rejected Trivett’s suggestions that the sounds may not be happening or perhaps are natural sounds from pipes. The prosecutor also raised the idea that bin al Shibh was lying to harass the guard force and to continue his jihad against the United States; the witness acknowledged that he views himself as an enemy of the U.S. He also acknowledged making abusive statements, such as calling female guards “sluts,” and breaking security cameras. In what seemed a non-sequitur, Trivett asked bin al Shibh if he remembers his dreams when he sleeps. The witness answered “sometimes.” “Do you dream about the people killed on Sept. 11th?” Trivett asked. Pohl sustained Harrington’s objection before bin al Shibh could answer. Trivett elicited detailed testimony from bin al Shibh about the workings of the detention facility. In the defendant’s view, the facility is a giant machine that allows guards to send noises and vibrations to almost any area, including cells, attorney meeting rooms, recreation areas and the media room. This might sound farfetched to some. At the hearing’s concluding press conference, however, Harrington said that he can feel trace effects or sensations of what his client is experiencing at the Camp Echo complex, where he meets with his client. Of course, by then, anybody directing vibrations to the room would presumably stop to make it seem like bin al Shibh was imagining the whole thing, so Harrington was possibly just feeling mild aftershocks. The 9/11 commission, like other long cases, progresses like a movie being filmed out of sequence, with scenes seldom occurring in a logical order to the casual observer. A motion might come up in one set of hearings and finish up with oral arguments in the next session, or maybe two sessions later, particularly if witnesses are required, which requires logistical preparations. And so the dispute over the alleged vibrations simmered from the end of February until

the Spring session. That week in court was among the most highly anticipated of the past year due to the planned testimony of fellow Camp 7 detainee Abu Zubaydah, who was expected to support bin al Shibh’s claims. The Palestinian is one of the better-known detainees due to his repeated mention in the Senate’s Torture Report. The report described Zubaydah as “the CIA’s first detainee” to go through the enhanced interrogation program. For Zubaydah, that reportedly included 83 rounds of waterboarding and a long list of other abuses, including being confined inside a coffin. The guard force transported Zubaydah and the other corroborating witness, Hassan Guleed, to Camp Justice on June 2, with Guleed scheduled to testify first. But there was a problem with getting Zubaydah to the stand: Unlike Guleed, he is one of the detainees who has been considered for prosecution and was represented by counsel. Zubaydah waited just outside the door of the courtroom (unseen by observers in the gallery) as his lawyer, Navy Cmdr. Patrick Flor, told Pohl that he would object to any line of questioning that could incriminate his client. This created an impasse given that Pohl had decided that the prosecution could probe Zubaydah for bias, including questions about his terrorist ties. Harrington and Flor agreed that the testimony could not move forward. Flor left the court to update Zubaydah before he was transported back to Camp 7. After the session ended, Flor told reporters that his client was disappointed but that he looked forward to testifying at some point. Still, Guleed, a 43-year-old Somali who testified in English, had held the gallery’s attention during lively direct examination by Harrington and cross by prosecutor Ryan. He testified that he has been subjected to offensive “smells” as well as to noises and vibrations. “We have mental torture in Camp 7,” Guleed said. The witness said that he decided to testify to help his “brother” (the two men are not related) and because his complaints to the guards – which he stopped making years ago – had not helped. Guleed also testified that a second 9/11 defendant – “Brother Mohammed” – also has experienced disruptions. He said that he and Mohammed are separated from each other by a cell but are able to communicate when both are in their individual recreation areas behind their cells. He described a situation when he and Mohammed both heard a banging noise – like

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a “hammer on a roof.” (In one prior session, when Harrington updated Pohl about the continuing abuse of his client, Nevin stood up to add that his client, Mohammed, had also recently reported to him a similar experience.) Ryan suggested that Guleed told multiple lies on the stand out of a continued devotion to al Qaeda, an affiliation the witness denied. “Is America your enemy?” Ryan asked. “No,” Guleed responded. He testified that he sees Americans as his friends because they provide him with his food at Camp 7. Both Harrington and Guleed complained that Ryan was cutting the witness off during his cross examination, and Pohl told Ryan to slow down. Ryan told Guleed he would not cut him off. “You did already, eh?” the witness said, sounding almost Canadian. Evidence on the vibrations continued later in the session, when a former Camp 7 commander, who was not identified by name, testified by video that both he and his predecessor had inspected areas of the facility and found no evidence to corroborate bin al Shibh’s claims. He said that roof repairs, air conditioner maintenance, installation of insulation and other activities could create loud noises. He said the guard force always notifies the detainees of such repairs in advance. But the public did not learn all that the former commander had to say. That’s because, on occasion, witness testimony is bifurcated, with some being given in open court and the rest in closed session when classified information may be involved. The commander repeatedly refused to answer certain questions about Camp 7 during Harrington’s crossexamination, explaining that he’d rather address those inquiries in the closed portion. The witness did testify in open court that he never asked to see the schematics of Camp 7 or inquire what company built the facility. He also testified he did not have any special training in mechanical or electrical engineering, plumbing or construction, and that when conducting his inspections he was looking for something that would have appeared unusual to him. He did not, for example, inspect the wiring that went into the defendant’s cells. “I did not look inside the walls,” the former commander told Harrington. 86

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“We’ll ask about the walls in a little bit,” the attorney said, pointing to the closed session scheduled for that afternoon. Zubaydah may yet testify at a future session. Harrington made a request to the current convening authority, Paul Oostburg-Sanz, to grant Zubaydah a limited “testimonial immunity,” so that prosecutors could not use what he says in court against him. Oostburg-Sanz denied the request, but the defense has asked Pohl to reconsider. Even if Pohl sides with the convening authority, Zubaydah could choose to testify after conferring with his attorneys.

VI. Case Moves Forward on Island Time

Pohl has a standing rule that all defense teams are presumed to have automatically joined each other’s motions, unless they move to unjoin. One reason why the litigation can proceed slowly through a single issue is that all defense teams may want to question a witness or give oral arguments on a motion, perhaps to make a point specific to their client or that the other teams may not have focused on. But the rule nevertheless makes sense, as the teams have similar positions on many issues and unjoining happens only on occasion. Apparently, this rule can create confusion if a thirdparty files a motion. That happened earlier this year when a consortium of news organizations challenged the government’s redaction of parts of the transcript for the Oct. 30, 2015 hearing, when a Camp 7 guard testified in the female-guard dispute. The entire hearing was held in open court. Lawdragon and other media representatives were in the viewing gallery, and Miami Herald reporter Carol Rosenberg live tweeted the hearing from the media center, which receives the court feed. After the hearing, the government nevertheless decided to redact from the published transcript information related to guard staff and operations that it deemed sensitive and did not want on the web. The media consortium claimed the censorship is unconstitutional. Dave Schulz, a longtime media lawyer at Levine Sullivan Koch & Schulz, travelled from New York earlier this year, for the oral arguments on Feb. 22. Without the necessary security clearances, Schulz could not be in court except to make his arguments; he had to watch defense and prosecution arguments from the gallery. With the 40-second security delay, Schulz


also was able to watch the last several seconds of his own presentation on the video feed after he took his seat with the rest of the observers behind the glass. A side issue was how automatic joinder might work when a third-party files a motion that at least some defense teams support. Three defense teams had filed joinders to the media motion. Nevin told Pohl that he was joining the defense teams who joined the motion, but had not necessarily thought of himself as joining Shulz’s motion. Pohl understood, using his catchphrase: “I got it.” “You are joining the joinders,” the judge said

will be talked about as “100 Bravo Bravo” or “100 Double Bravo.” The pleadings in the AE292 series – dealing with the potential conflict of interest from the FBI investigation into the bin al Shibh defense team – proved particularly confusing to sort through. Naturally, it was up to Connell to try to straighten out for the commission which motions were pending. “Separately pending is 292 Quadruple Yankee, which is our request to unseal the long series of classified and unclassified but all under-seal pleadings by the

“Unless I unjoin,” Nevin confirmed. Gen. Martins wasn’t exactly upset about this, but he arose to say that the approach didn’t seem to follow the rules of the court because the automatic joinder rule applied to joining motions, which have “content,” not to joining a mere notice of joinder. Pohl said that he would be lenient in this instance, as it appeared that a few teams thought they had “automatically joined the joinder.” “But in the future going forward, if it’s a third-party motion, I need affirmative joinders of the motion, not joinders of the joinder,” Pohl said. Though Martins was satisfied, Bormann then stood up. She pointed out that the joinder to the media motion filed by Connell’s team wasn’t simply a “pro forma motion,” it had “subsequent legal argument” by adopting Shulz’s arguments and adding supplemental points. That is why her team thought they had already – and automatically – joined that particular joinder, which was really more of a motion in its own right. “We are spending way too much time on this issue,” Pohl concluded, perhaps stating the obvious. (The judge later sided with the government on the transcript redactions, concluding in an October order that such retroactive actions are allowed to protect classified information.) The parties also can spend a significant amount of time simply talking about which pleadings they are referring to in court, as there are thousands of them. Each motion is assigned a number with the letters AE, for “appellate exhibit,” so the hundredth motion is AE100. Then each subsequent pleading within the series is given a letter, so AE100A is followed by AE100B and, when the series moves past Z, the next in line is AE100AA. Lawyers sound the letters out in court using the military phonetic, so AE100BB

Another view inside the detention zone. Photo by John Ryan.

Special Review Team,” Connell explained at one point on Oct. 25. “Connected to that, a sort of footnote to 292 Quadruple Yankee, is that the Special Review Team has filed 292 Quintuple Delta, which was although styled as a notice, is really a motion to approve redactions without, in our opinion, complying with the requirements of M.C.R.E. [Military Commissions Rules of Evidence] 506.” Connell added that 292 Quintuple Delta “could be seen as an unauthorized supplement to 292 Quadruple Yankee, or it can be seen as its own issue.” He told the judge that he needed to resolve those issues before moving on “to the question of resolving 292 Romeo Romeo, the government’s motion to reconsider, and 292 Sierra Sierra, the defense motion to reconsider.” Connell continued, “Now, 292 Sierra Sierra, the defense motion to reconsider, contains within it essentially two components. One of those is the ruling in 292 Quebec Quebec regarding AE 292 Lima…”

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And on it went. Despite the joinders, if there is one defense team that tries to distance itself a little bit more from the others, it’s the al Hawsawi team, which sits in the far back, often without the client present. Ruiz is not necessarily likely to unjoin other motions – he often takes the lead with impassioned omnibus attacks on the system, such as with the defective referral or unlawful influence motions – but he also contends that the case doesn’t have a whole lot to do with his client. Ruiz first filed a motion for severance back in May 2014 and has supplemented his position in pleadings since. “The prosecution’s case against Mr. al Hawsawi, as well as his criminal culpability, if any, is disproportionate when compared to his co-accused,” the motion states, referring to al Hawsawi’s alleged role in providing money to the hijackers. His lawyers argue that he had little contact with the other defendants, and that a joint prosecution severely prejudices him because the panel that decides the case with be likely to transfer guilt from the others. Prosecutors counter that the defense motion mischaracterizes al Hawsawi’s role in the plot. “Mr. Hawsawi ran many necessary errands, and he ran them with willingness and knowledge that an operation to take American lives was underway,” the government wrote in its response brief. To be sure, the media often lumps “the five 9/11 defendants” together when covering the case by not always detailing the allegations specific to each accused. Much of the general public probably knows that Mohammed, or KSM, as he’s broadly referred to, is the alleged mastermind of the 9/11 attacks; beyond that, they all are conjoined as the accused plotters. Ruiz believes that the government intentionally groups the defendants together, even when defense teams advance different arguments. That was evident in July in defense motions over the alleged evidence destruction of CIA black-site evidence, when Ruiz declined to join parts of the motion that sought to remove both the judge and the prosecution from the case. Ruiz told Pohl that he was bothered that trial counsel Swann had criticized the “entire left side of the room with the same broad brush.” Ruiz argued that a military judge like Pohl could “cut through the weeds” to see the distinctions, but a jury may not have that ability if the prosecution kept stepping “away from individualized determinations based on legal positions and relative roles in the case.” 88

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Pohl asked Ruiz if he was supplementing his motion for severance, then caught himself: He didn’t want to encourage another pleading. “Yes, we have information that we can add,” Ruiz said. “And you don’t have to encourage me, judge, on this issue, I think you know that.” Pohl acknowledged that al Hawsawi deserved “an answer” on the pending motion at some point. For the first half of the case, Ruiz was a Naval Commander and wore his uniform in court. With his extensive experience as a state and federal public defender before his most recent stint in the Navy, Ruiz for a time actually wore two hats on the 9/11 case as both the learned counsel and the military counsel for al Hawsawi. He is now a reservist and in civilian clothes. He has two military lawyers at his table, Marine Lt. Col. Sean Gleason and Army Lt. Col. Jennifer Williams, and another civilian lawyer, Suzanne Lachelier. As the case has dragged on, Ruiz is not the only attorney to step out of uniform. The second civilian attorney for bin Attash, Schwartz, has been with Bormann since the 2012 arraignment. He was an Air Force Major through the fall of 2015 before becoming a civilian to stay on the case, as he was scheduled to rotate to another assignment. Schwartz showed up to the February 2016 hearings in civilian clothes for the first time, and also with a beard. It was a bit of a cruel move when bin Attash later decided he wanted to fire both Bormann and Schwartz. The government supported Schwartz’s removal from the case because, as additional civilian counsel, Schwartz was not “statutorily required” to be present as learned counsel Bormann was. But Pohl included Schwartz is in his order that bin Attash did not have “good cause” to fire his lawyers. Army Maj. Wichner, for bin al Shibh, also will be returning to civilian life this year in order to stay on the case with Harrington. Chief defense counsel Baker says the rotation of military personnel is also an ongoing issue for the military paralegals, analysts and investigators who play crucial roles on the teams, and who have to choose between staying with the case and remaining competitive for promotion. He believes that the teams are vastly underresourced and is seeking additional civilian and military staff, recently securing funding for additional paralegals from the convening authority. But Baker says it makes more sense to staff the case with civilian attorneys, when possible. The biggest Continued on pg. 91


The Chief Defense Counsel: Marine Brig. Gen. John Baker If you go to Guantanamo Bay to observe the military tribunal against the five Sept. 11 defendants, you won’t see the Chief Defense Counsel arguing any of the motions at the podium or sitting at the defendant tables during the proceedings. Instead, you’ll find Marine Brig. Gen. John Baker at the back of the courtroom, directly in front of the glass separating the highly secure court from its viewing gallery. In his supervisory role, Baker does not represent any of the detainees. Rather, he provides advice to the defense teams and helps them get the resources they need from the military commissions Convening Authority, which is responsible for overall management of the commissions system as well as referring charges for trial. Baker was a supply and logistics officer in the Marines before attending law school at the University of Pittsburgh through the Marine Corps Law Education Program. Since graduating in 1997, he has served as a defense attorney, prosecutor and judge. He says he found his true calling – managing defense lawyers – as the Regional Defense Counsel for the Eastern Region of the Marine Corps, a position he held from 2008 to 2010 before serving three years as Chief Defense Counsel of the Marines Corps. In that top job, he oversaw the establishment of the Marine Corps Defense Services Organization, which reformed how defense lawyers were supervised and assigned to cases. Lawdragon: Can you discuss why you changed the name of the defense office, and how that plays into what your role is here? Brig. Gen. John Baker: When I took over, this office was referred to as the Office of the Chief Defense Counsel. The reason why I changed the title to the Military Commissions Defense Organization is that the focus of this office shouldn’t be on me. We are an organization that is comprised of defense teams, and when someone thinks about what we do, it is not the Chief Defense Counsel that is doing the litigation. The litigation is done by the defense teams. What I do is provide them with oversight and supervision, and advocate on their behalf for resources. What I don’t do is tell them how to litigate their cases. That is a big difference between my role and General

Photo by the U.S Marine Corps.

Martins’ role. General Martins decides what the government is doing with its litigation strategy and has an active role in court. The Chief Defense Counsel absolutely does not decide the litigation strategy for any particular case and cannot represent individual clients. The defense teams talk to me about their cases, but what they do with my advice is up to them. LD: What did you think when you were promoted and assigned to this position? Did you know what you were getting into? BGJB: I knew about the position and was excited about the possibility when being considered for it. But what I thought the commissions were, and what the commissions are, is like night and day. I just didn’t appreciate the depth and breadth of the legal work that is involved in the commissions. I had no idea how much work is involved. I didn’t know the amount of resources that were put into it. I had no idea how often they came down here. I had no idea how many motions they filed. I had no idea how much discovery would be involved. I also did not have an appreciation for how committed to the mission people here are. The quality of lawyers that are assigned to this, the paralegals and all the staff – everybody here is really, really impressive. I guess the other thing I didn’t appreciate was how under-resourced the defense teams are, even

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though we have what may seem like a lot of people. I feel like we have made some progress, but we need more resources to get the job done. LD: How do you get resources for the case? BGJB: When I was Chief Defense Counsel of the Marine Corps, I had my own budget. Here I don’t have my own budget. I have to ask permission from the Convening Authority of the military commissions to spend any amount of money on the defense teams. When I was the Chief Defense Counsel for the Marines, I felt like I had enough people and other resources. Here I don’t feel like I have enough resources, so that is what I have been working with the Convening Authority to provide – to get the assets that the teams need to do their job. I don’t know how Gen. Martins is resourced, but I can’t just go to the FBI or Department of Justice or elsewhere to get what we need. I have to go to the Convening Authority. LD: Even if the defense teams get new members, it can take a while for them to get their security clearances. BGJB: That is right. That is a huge issue. The length of time that it takes to get a security clearance is unacceptable. I have talked to everybody that I know about this, but it is like talking to a wall. Everybody I talk to says, “Hey, great, we hear you. We wish it was better.” Nobody can do anything about it. I am still waiting to find the person that can speed the process up. Everybody acknowledges that it is a problem, but nobody offers a solution, and that dramatically impacts the defense teams’ ability to adequately and zealously defend their clients. LD: You don’t have an attorney-client relationship with the defendants, but you do speak with them. For example, you’ve spoken a lot with Walid bin Attash, who has been unsuccessful in getting his attorneys fired and replaced. BGJB: While I don’t have an attorney-client relationship with any of them, their communications with me are privileged. I will meet with any detainee that requests to meet, as long their lawyers approve. I won’t meet with a detainee where his counsel says no. That has never arisen. There are a couple reasons why they want to talk to me. One is because they have an issue they feel needs to be resolved. Mr. bin Attash and his issues with his lawyers is a perfect example. I have met with him probably ten times to explain the rules, my role in the process, to let him know and give him my word that we are going to work through this issue. 90

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The other time I will go talk to them is that sometimes they want to tell me in front of their lawyers or their paralegals that they think these people are doing a good job, which is interesting. LD: Why did you decide to go to law school? BGJB: I was a supply and logistics officer and sat on the administrative separation boards in Quantico, Va., which are held if a service member engages in minor misconduct and the command wants to process them out of the service. It is essentially the way you can get fired without going to court. I sat on these boards every other week for six months. I remember watching a Marine Judge Advocate defending a Marine and thinking to myself that I could do a better job. Not because he was doing a really bad job, but it felt like it was an opportunity to help the Marines. Once I was involved in that process it made me decide that I wanted to be involved in the military justice process. My oldest brother also is lawyer. LD: So you knew you wanted to end up on the defense side? BGJB: It’s interesting. What drew me to want to go to law school was watching a Marine defend a Marine, thinking that was cool. But as I came out of law school I wanted to prosecute. My first assignment was as a legal assistance attorney, then as a defense counsel, and then I became a prosecutor. I really liked that, and later I also really liked being a judge. It is almost like whatever job I have been in, I have enjoyed. But when I became Regional Defense Counsel for the Marine Corps on the East Coast, is when I really felt like I had found my calling – leading defense counsel. I went from the regional role to being the Chief Defense Counsel of the Marine Corps. I really like leading litigators. LD: Some lawyers in the Sept. 11 case believe that trial is several years away. How long do you expect to stay in this role? BGJB: I think it is a three-year assignment, but I don’t know. Nobody said to me when I came in, “You are here for X amount of days.” I want to stay in this position as long as I am effective. So, if that means five years, it means five years. If it means one year, it means one year. Read the full Q&A at www.lawdragon.com/2016/07/06/ lawyer-limelight-guantanamo-brig-gen-john-baker.


Joint Task Force-Guantanamo provides tours of the detention area, where this photo was taken, but Camp 7 is off limits. Photo by John Ryan.

change observers of the case may see is the addition of a second learned counsel for each 9/11 defendant. If the government is going to move forward with the trial of the century, he says, it had better put its money where its mouth is. “The legal standard on capital cases is very clear,” Baker explained. “Counsel are essentially required to investigate and litigate two simultaneous cases: one to determine the guilt of the client and one for mitigation if the client is found guilty. If we really want to try these cases, there needs to be a second learned counsel on each team.” Not surprisingly, the arrival of the 15th anniversary of the Sept. 11 attacks renewed discussions of whether the case would be better off in federal court, even if the steps to get there (transferring detainees) are presently barred by Congress. The most commonly expressed critique of the commissions system is that it’s unnecessary given that federal courts have successfully processed hundreds of terrorist cases, typically ending in conviction. Only one detainee case, that of Ahmed Khalfan Ghailani, was moved to federal court from Guantanamo Bay before Congress banned transfers of detainees to U.S. soil. In 2010, Ghailani was found guilty in New

York federal court for his role in the 1998 bombing of the U.S. Embassy in Dar es Salaam and received a life sentence – another success, perhaps, for the civilian side. But supporters of the military option also cite the case as a dangerous near-failure, given that Ghailani was convicted of just a single conspiracy count and acquitted of hundreds of murder and terrorism charges. U.S. District Judge Lewis Kaplan excluded a key witness from testifying after learning he had been through the CIA’s coercive interrogations. Of course, a military judge at Guantanamo Bay might have to make a similar call under the 2009 MCA’s provisions. The convictions by military commissions include three during the Bush era (one by guilty plea) and five under Obama (all by guilty plea). They generally have resulted in short sentences, with all but three of the convicted detainees long since transferred out of Guantanamo Bay to their home countries. In addition, the D.C. Circuit has overturned convictions on charges of providing material support for terrorism and conspiracy – charges used in federal court cases all the time – because they were not recognized war crimes at the time the defendants engaged in the conduct.

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Walter Ruiz, lead defense attorney for Mustafa al Hawsawi. Photo by John Ryan

However, the government successfully challenged a D.C. Circuit panel’s invalidation of the conspiracy charge against Ali al Bahlul, who received a life sentence and remains at Guantanamo, in an appeal to the full circuit. In October, the circuit upheld al Bahlul’s conspiracy conviction in a 6-3 ruling; the issue is likely headed to the U.S. Supreme Court. For a military tribunal, the Sept. 11 case is on much firmer ground because the allegations include established war crimes, such as attacking civilians, attacking civilian objects, murder and destruction of property in violation of the law of war, terrorism and hijacking. And, of course, by this point so much has transpired in the case that starting over in a new jurisdiction is difficult to imagine – even if imagining this commission’s conclusion is equally difficult. The case has finally built some semblance of momentum. Pohl always sets the hearing docket based on the motions that have been fully briefed. During the Spring and Summer sessions, the judge and the lawyers were pleasantly surprised that they made it through everything available for argument. “As I’ve said on many occasions, I’m more optimistic than realistic,” Pohl told the court on June 2. “But actually this week we got a lot of things done, much more than I anticipated, and we’ve kind of exhausted what’s on the docket.” He called an early recess for the day. Critics of the military commissions often invoke the victim family members, who must wait for justice. In 92

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the area of war crimes and international justice, the long wait for justice is a recurring theme for victims and their families, particularly in new court systems that attempt to account for mass atrocities. In one of just many examples from the past few decades, earlier this year the International Criminal Tribunal for the Former Yugoslavia, based in The Hague, finally convicted Serb wartime leader Radovan Karadzic for genocide, war crimes and crimes against humanity tied to events that unfolded in the early-to-mid 1990s. In the eyes of some observers, like former Attorney General Eric Holder, who claimed nearly three years ago that the five defendants would be on death row if they had been prosecuted in federal court, the difference is that the wait for 9/11 justice is self-inflicted, not mandated by an existing court’s inability or unwillingness to handle a case. At the press conference concluding the most recent session in July, Harrington said that the fastest way to move the case along would be “to take the death penalty off the table.” “The government ought to seriously consider that at this point,” the attorney said. But family members who have travelled to Guantanamo Bay don’t often criticize the government for the pace of the case, resenting instead certain defense tactics. It’s hard to generalize on these topics, as some family members said they would have preferred a federal court trial. But most who have spoken on the record are deeply appreciative of the effort put forth by Martins and his team and say they are willing to wait as long as it takes for the Guantanamo military tribunal to finish. Where critics see a farcical system stacked against the defendants, these observers see a system willing to bend over backwards for the defendants, to cross every “t” and dot every “i” to prove that Americans do things right. When he took the job of chief prosecutor, Martins requested the assignment to be his last in the military to avoid any consideration for a promotion. He was scheduled to retire back in 2014 before receiving a three-year extension. He believes in continuity, and the long view. “We’re going to do this for however long it takes,” Martins told Lawdragon earlier this year. “Another benefit of meeting with family members is that many of them take a long view, too. They inspire us.”


Leaders in Litigation. www.gelaw.com


REPRESENTING THE FINEST LAW FIRMS AND PRACTICE GROUPS IN THE COUNTRY FOR 35 YEARS

“Effective Management requires a willingness to engage in constant transformation.” “Congratulations to Katrina Dewey for the lasting contribution of her incisive, inspirational journalism and unflagging integrity. In over two decades of being a first class writer, thought leader, editor and publisher for the legal industry, Katrina’s enthusiasm for doing the right thing for the right reasons has been beyond reproach. She makes the most valuable contribution, inclusion of all stakeholders in the legal industry. Her search for truth has influenced legal reporting in such a way that she stands out among much larger competitors. I consider it my greatest honor to be both her friend and co-conspirator.” – Bobbie McMorrow

STRATEGY BASED TALENT ACQUISITION MERGERS AND ACQUISITIONS - EXECUTIVE COACHING www.mcmorrowconsulting.com


Hall of Fame The Lawdragon Hall of Fame honors lawyers for their enduring contributions to the legal profession. In its second year, we have chosen 23 new honorees who have dedicated their careers to the law. They range from plaintiff lawyers who have changed the lives of badly injured individuals to powerful corporate governance experts. This year’s group includes the late U.S. Supreme Court Justice Antonin Scalia, whose lifelong embrace of the law, its quarrelsome crannies and soaring principles, defines our Hall of Fame.

PHOTO BY: STEVE PETTEWAY / U.S. SUPREME COURT

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Wylie Aitken - Aitken Aitken Cohn The most important impact lawyers can have is in their own communities, where Aitken has achieved justice for badly injured individuals, and been a leader for his law school and the trial lawyer profession. David Andrews - PepsiCo./McCutchen (1942-2013) He brought a grace to all he did, from leading environmental lawyer to one of the first African-American leaders in BigLaw, 19th General Counsel of the State Department to general counsel of PepsiCo. Ralph Baxter - Orrick Take a small-town kid from West Virginia, add a law degree and marketing savvy and watch him rise to preeminent employment lawyer, and then chairman of Orrick, which he revolutionized from a public finance shop to a national power. Morgan Chu - Irell & Manella A self-proclaimed underachiever in his own family, Chu is the first AsianAmerican head of a BigLaw firm, a genius IP litigator, the supporter of the Dean’s chair at Harvard Law School, and a benefactor of the remarkable City of Hope. Joe Cotchett - Cotchett Pitre The larger-than-life Cotchett rose from JAG officer to win billions for consumers in antitrust, financial and other frauds while becoming a major Bay Area politico and supporter of UC Hastings Law School and science and math teacher education. Mary Cranston - Pillsbury She crashed through BigLaw ceilings at Pillsbury when it was California’s leading firm, becoming head of litigation and then chair. She has since laid new pavement for women aspiring to corporate board positions and other leadership roles. Larry Feldman - Liner LLP He’ll forever be known for his star turn suing Michael Jackson on behalf of a boy the singer allegedly molested, just one of more than a hundred trials he’s handled in his remarkably winning career.

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Leading all other Chicago personal injury law firms in recoveries for the past seven consecutive years 1

70 WEST MADISON 55TH FLOOR CHICAGO, ILLINOIS 60602 WWW.PRSLAW.COM 312.236.9381 1

Chicago Lawyer Annual Settlement Survey 2010-2016

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CHICAGO’S PREMIER PLAINTIFFS’ TRIAL LAW FIRM


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William Gates - World Justice Project/K&L Gates A towering figure in the Northwest, he was a name partner at what is now K&L Gates, a community leader for Planned Parenthood and is a leading supporter of the World Justice Project and University of Washington Law School. Jack Greenberg - Columbia Law School/NAACP (1924-2016) The Columbia Law Professor will forever be remembered as one of the attorneys who won Brown v. Board of Education, and for succeeding Thurgood Marshall as president of the NAACP Legal Defense and Educational Fund. Marshall Grossman - Orrick A tenacious trial lawyer from Southern California, Grossman rose to prominence with his advocacy in the Guess? Jeans litigation, and has continued his high-profile winning ways while serving as an important supporter of the American Jewish Community. Ben Heineman - GE Corp. A key architect of the ascension of corporate counsel while general counsel at GE, Heineman now uses his Harvard platform to continue the conversation about corporate legal accountability. Stephen Immelt - Hogan Lovells A towering figure in Biglaw, the acclaimed litigator has led one of the only successful European expansions through merger, and is praised for his advocacy on redefining law practice with an eye to clients, leadership and solutions. Lou Kling - Skadden A vaunted dealmaker on Skadden’s illustrious team, he represents a who’s who of corporations, including News Corporation, Express Scripts and E.I. du Pont de Nemours and Company. Esther Lardent - Pro Bono Institute (1948-2016) The daughter of Holocaust survivors made public service her mantra, using her career to advocate for pro bono – and in the process creating more than 60 million free hours of legal services to people in need through the Pro Bono Institute. Raymond Marshall - Sheppard Mullin A widely respected Bay Area litigator, Marshall gives tirelessly to the community and serves as a strong voice for diversity through bar organizations, including the California Minority Counsel Project.

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Vilma Martinez - MALDEF/Munger Tolles/U.S. Government The voting power of Latinos and bilingual education are but two of Martinez’s legacies, rising from her San Antonio childhood to become a civil rights leader at MALDEF, partner at Munger Tolles and then Ambassador to Argentina. Richard Matsch - U.S. District Court The highly respected former prosecutor was exemplary as the judge in the Oklahoma City bombing trial of Timothy McVeigh and Terry Nichols. He continues to serve the federal bench in Denver. William Neukom - World Justice Project/Microsoft He’s had a storied career in every sense, serving as Microsoft’s first general counsel. He’s since run the San Francisco Giants and now the World Justice Project and has a building at Stanford Law School named after him. Stephen Reinhardt - U.S. Court of Appeals The oft-reversed 9th circuit jurist has had a remarkable career, rising from Air Force counsel to top L.A. labor lawyer and then irascible, unflinchable standardbearer of the left for an increasingly moderate 9th circuit. Larry Rogers - Power Rogers A co-founder of the consumer powerhouse Power Rogers & Smith, he won the largest personal injury verdict in Illinois in his very first trial – and has never looked back. He’s won millions for his injured clients and served as a leader of the bar. Antonin Scalia - U.S. Supreme Court (1936-2016) From nearly 30 years on the high court bench – producing law and originalist thought, and a legacy in law clerks - to his time at the University of Chicago Law School, where he fathered the Federalist Society, we will not see another of his impact any time soon. Paul Tosetti - Latham One of California’s M&A titans, Tosetti forged the path for Latham’s global impact in the area, representing companies including Allergan, Beckman Coulter and Oracle. John White - Cravath The corporate governance expert has had far-reaching impact on corporate transparency and modernized disclosure through his work at the SEC and as leader of Cravath’s elite corps of corporate counselors.

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The Legends That faraway prize. The world of success. In 2015, we popped a bottle for our 10th anniversary by introducing our first group of Legends – 50 lawyers we had recognized for their craft every year of the Lawdragon 500 and who epitomized achievement in lawyering. Dragons all, they are larger than life and illustrate the power and promise that can be achieved when a match is struck to ignite a piece of paper with will, dedication and passion. They never settle for less. To that remarkable group we this year add 41 more, working-class heroes who represent the injured everyman; a Supreme Court justice who embodies the life of the law – and particularly a woman’s journey; and dealmakers and trial lawyers whose achievement lies not as much in their million-dollar bounties as in their ability to change the worlds of those fortunate few clients who summon their wisdom and skill. They dare to try. They do it or die. Straight up. Extra dry.

PHOTO BY: FELIX SANCHEZ

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Mary Alexander

Riley Allen

MA RY A LE X A N DE R & A SSO CIA T E S -

R I LE Y A LLE N LA W - O R LA N D O

S A N FR A N CISCO

This passionate advocate for the injured and oppressed is a role model for female trial lawyers and the opponent you never want to go against.

We’d say he breaks bad but he’s so good. Allen brings the same fearlessness to representing his clients that he does to catching the big waves and other causes about which he’s passionate.

Photo by Annie Tritt

Photo provided by the firm

Corinne Ball

Robert Baron

JONES DA Y - N E W YO R K

Has any lawyer had the impact Ball has with her mastery of bankruptcy in this era of distress? We doubt it, and respect her determination and drive. Photo by Greg Endries

C R A V A TH - N E W Y O R K

A leader of Cravath’s peerless litigation corps, Baron is tops in securities litigation for JPMorgan, IBM and HCA in Chancery and an endless list of other prime-time suits. Photo provided by the firm

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Hilarie Bass

Sam Baxter

GRE E N B E R G T R A U R IG – MIA MI

M C K O O L S M I TH – D A LLA S

Bass is tops as a leader of her firm, her community and other professional organizations, including the ABA – at the same time her pro bono efforts threw out Florida’s ban on gay adoption.

They call him Mr. Marshall – Texas, that is. It’s the seat of his power, but far from its reach – given the former state judge’s unbeatable record in IP and other tough trials.

Photo by Josh Ritchie

Photo by Justin Clemons

Stephen Breyer

Bill Carmody

U.S. SU PR E ME CO U R T -

SUSMAN GODFREY - NEW YORK

W A SH IN G T O N , D.C.

The Bay Area native has served the country well for 22 years as a liberal-leaning justice who encourages thoughtful and active democracy.

This renegade Texas trial lawyer returned home to New York with his Susman Godfrey posse, and when disaster looms, he bets on the results of his clients’ big-ticket litigation.

Photo by Steve Petteway

Photo by Erica Freudenstein

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Frank Darras

Adam Emmerich

DA RRA S LA W - O N T A R IO , CA L IF.

W A C HTE LL LI P TO N - N E W Y O R K

Everyman’s hero for his dogged, passionate and inspired advocacy for injured, elderly & disabled workers has recovered more than $800 million in wrongly denied insurance benefits.

The savvy and ridiculous smart Emmerich is one of, if not the best, global dealmaker on the planet with a footprint in more countries than you can name. Photo by Greg Endries

Photo by Amy Cantrell

Pat Fitzgerald S KA DDE N – CH ICA G O

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James Garner S HE R G A R N E R - N E W O R LE A N S

As a legendary prosecutor, he took down governors and international terrorists, and now works on the highest of highprofile and confidential matters as one of Skadden’s most coveted partners.

This New Orleans born and raised powerbroker leads the new crop of “lawyers to know” in Louisiana, representing the state in its biggest battle – against coastal destruction.

Photo by Dave Cross Photography

Photo by Michelle Nolan

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Ruth Bader Ginsburg

Robert Giuffra

U.S. SU PR E ME CO U R T -

S U LLI V A N & C R O M W E LL - N E W Y O R K

W A SH IN G T O N , D.C.

The one. The only. We should all say thanks. Rarely does someone of such intense intellect, composure and dedication pass our way.

One of the most intelligent and erudite litigators to emerge over the past 20 years, he’s called upon by Volkswagen, Enron, the New York Giants, and every bank you can name.

Photo by Steve Petteway

Photo by Greg Endries

Sandra Goldstein

Edward Herlihy

C R A V A T H - N E W YO R K

Among the most feared corporate litigators, the first female chair of litigation at Cravath has litigated more than $500 billion in disputed deals in the past five years alone.

W A C HTE LL LI P TO N - N E W Y O R K

You don’t become the longtime co-executive chairman of the world’s most elite law firm for nothing, as this banking M&A major domo proves over and over again. Photo by Laura Barisonzi

Photo by Hugh Williams

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Jay Kasner

Neal Katyal

S KA D DE N - N E W YO R K

HO G A N LO V E LLS -

One of the world’s leading authorities on securities litigation, Kasner has defended and made ‘good’ law for illustrious companies claimed to have wronged their investors.

The esteemed former acting solicitor general of the U.S. has deftly argued more high court cases than any racial minority attorney – except Thurgood Marshall. Oyez.

Photo by Hugh Williams

Photo by Hugh Williams

Steve Lane

Neal Manne

H E RMA N HE R MA N - N E W O R L E A N S

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W A S HI N G TO N , D . C .

SUSMAN GODFREY - HOUSTON

The legendary New Orleans divorce lawyer is also managing partner of his famous firm after years of leading class actions and representing the ACLU to ensure marriage equality and equal rights.

He’s the olive in the cocktail, the Frank Sinatra of the Rat Pack. Which is to say, he’s supremely that guy – the politico, legal genius and community activist without whom there’s only a bunch of separate voices.

Photo by Hugh Williams

Photo by Felix Sanchez

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Mike McKool

Ted Mirvis

MCK O O L SMIT H - DA L L A S

W A C HTE LL LI P TO N - N E W Y O R K

The fabulous and aptly named litigation star founded a law firm juggernaut while trying more than 100 jury trials for clients from Alcoa to Medtronic. Photo by Justin Clemons

A genius litigator and corporate governance expert who’s relied on by everyone from Bank of America to Ken Langone when every single one of the chips are on the line. Photo by Hugh Williams

Gary Naftalis KRA ME R L E V IN - N E W YO R K

The deeply respected white-collar defender has the back of everyone from Michael Eisner to Rajat Gupta to the oldest U.S. synagogue. Photo by Erica Freudenstein

Steven Newborn W E I L - W A S HI N G TO N , D . C .

This legendary antitrust star has an unparalleled record of gaining antitrust approval for the largest companies in the world from Allergan to ExxonMobil to Johnson & Johnson. Photo provided by the firm

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Eileen Nugent

Carter Phillips

S KA D DE N - N E W YO R K

S I D LE Y A U S TI N - W A S HI N G TO N , D . C .

One of the world’s top dealmakers and global co-head of Skadden’s Transactions Practices, Nugent handles billions in M&A and LBO deals on a daily basis.

This highly regarded appellate advocate also runs one of the world’s biggest law firms. Photo provided by the firm

Photo by Hugh Williams

Joe Power PO WE R R O G E R S – CH ICA G O

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Gordon Rather W R I G HT LI N D S E Y -

A true working class hero for the most badly injured Chicagoans, Power appeals to juries and judges alike with brains, persuasion, tenacity and heartfelt dedication.

Mr. Arkansas is lauded as one of the nation’s great trial lawyers with a particular way with juries on behalf of his corporate clients, and a gracious manner noted by all.

Photo by Michelle Nolan

Photo provided by the firm

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LI TTLE R O C K , A R K .


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Alison Ressler

Paul Schnell

SULLIVAN & CROMWELL - LOS ANGELES

SKADDEN - NEW YORK

California Resources, Valeant and Ares all call upon this exceptionally gifted M&A and corporate governance lawyer who’s anchored the firm’s West Coast presence since 1984.

This jaw-dropping global dealmaker and healthcare deal expert handled $450B in global deals in 2015 alone, including 23 exceeding $1B. Photo by Laura Barisonzi

Photo by Amy Cantrell

Robert Schumer PA U L W E ISS - N E W YO R K

Chris Seeger S E E G E R W E I S S LLP - N E W Y O R K

The esteemed and powerful M&A impresario is regular counsel to Time Warner and a host of other worldwide companies who value his insight and experience.

One of the nation’s greatest plaintiff lawyers brings the heart and soul of the boxer and carpenter he started out as to improve safety for NFL players, pharmaceutical patients and other consumers.

Photo provided by the firm

Photo by Gregg Delman

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Joe Sellers

Leopold Sher

CO H E N MIL ST E IN -

S HE R G A R N E R - N E W O R LE A N S

WASH IN G T O N , D.C.

This civil rights and employment law champion has handled more than 75 class actions while giving abundantly to public interest.

A national leader in real estate and corporate law, Sher is also a dedicated advocate for his beloved New Orleans and Tulane Law School. Photo by Michelle Nolan

Photo by Hugh Williams

Stuart Singer BOIE S SCH IL L E R -

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Robert Spatt S I M P S O N THA C HE R - N E W Y O R K

FO RT L A U DE R DA L E , FL A .

A dazzling advocate in trial and appellate courts, he’s relied on by Carnival Cruises, Nascar, NextEra and the children of Florida to win big when it matters.

A noted dealmaker who is regularly called on for complex combinations, including Lorillard’s sale to Reynolds and Smithfield Foods in the largest Chinese takeover of an American company.

Photo provided by the firm

Photo by Hugh Williams

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Bryan Stevenson

Donald Verrilli

E Q U A L J U ST ICE IN IT IA T IV E -

MUNGER TOLLES - WASHINGTON, D.C.

MO N T G O ME R Y, A L A .

We need more Bryan Stevensons. Pure and simple. He champions racial justice, the rights of incarcerated children and equality for poor and minorities.

Obama’s longtime Solicitor General argued 37 High Court cases, including defending Obamacare and Marriage Equality, and now anchors Munger Tolles’ new D.C. outpost.

Photo by Alan Matthews

Photo by Hugh Williams

Donald Wolfe

Steve Yerrid

POTTE R A N DE R SO N – W IL MIN G T O N

He’s top dog when it comes to Delaware litigation, with more than 200 reported decisions including Revlon, AirGas and Hewlett Packard. Photo by Andrew Kahl

Y E R R I D LA W - TA M P A , F LA .

To call him a legend scratches the surface for this amazing plaintiff lawyer, who’s brought justice from Big Tobacco to Deepwater Horizon, while achieving more than 250 verdicts and settlements in excess of $1M. Photo provided by the firm

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Michael Young W IL L K I E F A R R - N E W Y O R K

One thing you can count on in the complex world of financial and accounting litigation is Young, whose trial and counseling work is tops. Photo by Erica Freudenstein

The Legends

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Karen Patton Seymour SULLIVAN & CROMWELL (NEW YORK)

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Justice Ruth Bader Ginsburg remarked before the passing of her dear friend, Justice Antonin Scalia, that there would be enough women on the Supreme Court when there were nine. One of President Barack Obama’s enduring legacies will be a Supreme Court with one-third female justices, and that he filled his first two vacancies with female appointees. We hope future Presidents will follow his lead.

THE LAWDRAGON 500 Of course, women have been 50 percent of law students for well past a decade. And many, including Sullivan & Cromwell litigator Karen Patton Seymour – who has served two stints in the U.S. attorney’s office in Manhattan in addition to her time in private practice – have been practice leaders since before Lawdragon’s founding in 2005. Here’s to her, Justice Ginsburg and the 163 other remarkable women who have helped us achieve something of which we’re incredibly proud: One-third of this year’s 500 is women, on the merits. We suspect Justice Ginsburg wouldn’t have it any other way.

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Arthur Abbey

Rosemary Alito

ABBEY SPANIER NEW YORK

K&L GATES NEWARK, N.J.

Matthew Abbott

Samuel Alito

PAUL WEISS NEW YORK

U.S. SUPREME COURT WASHINGTON, D.C.

Nancy Abell

Riley Allen

PAUL HASTINGS LOS ANGELES

RILEY ALLEN LAW ORLANDO

Linda Addison

David Anders

NORTON ROSE FULBRIGHT NEW YORK

WACHTELL LIPTON NEW YORK

Michael Aiello

Antonia Apps

WEIL GOTSHAL NEW YORK

MILBANK NEW YORK

Tom Ajamie

Frank Aquila

AJAMIE LLP HOUSTON

SULLIVAN & CROMWELL NEW YORK

Charla Aldous

Cynthia Arato

ALDOUS LAW DALLAS

SHAPIRO ARATO NEW YORK

Joseph B. Alexander Jr.

Stephen Arcano

DLA PIPER MIAMI

SKADDEN NEW YORK

Mary Alexander

Cris Arguedas

MARY ALEXANDER & ASSOCIATES SAN FRANCISCO

ARGUEDAS CASSMAN BERKELEY, CALIF.

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KAREN PATTON SEYMOUR KAREN PATTON SEYMOUR’S REMARKABLE

tenure at Sullivan & Cromwell has been interrupted not once, but twice, by stints at the U.S. Attorney’s Office in Manhattan. The first time, in 1990, Seymour was a young associate looking for significant trial experience, which she gathered over six-plus years. By the time of the second opportunity, in 2002, Seymour was already at an elite level in the profession and left to serve as the Office’s Chief of the Criminal Division. During the almost three-year tenure, she also took the lead trial role in prosecuting Martha Stewart and her broker, Peter Bacanovic, for false statements and obstruction of justice. Seymour has excelled in criminal work from the defense side at Sullivan & Cromwell; she is often called upon for massive investigations with an international flavor. In 2015, Seymour negotiated settlements for Barclays, which faced allegations tied to price manipulation in the foreign exchange market, and BNP Paribas, which admitted to violating U.S. economic sanctions. But the University of Texas School of Law graduate, who is also a Texas native, values the diverse mix of a practice that includes a wide range of litigation work. Lawdragon: What led you to New York? Karen Patton Seymour: After law school, I was pretty much convinced that I wanted to go to a bigger city than those in Texas to learn from the best and brightest. When I was a second-year law student, I initially looked at San Francisco and loved it, but I didn’t think the practice there was as strong as the practice in New York. Like many people, I came here to practice for a few years and learn how to be the best lawyer I could be. I assumed I might leave at some point and even move out of New York. I didn’t really expect to spend my entire career in New York City, and I didn’t really assume I was going to be a partner at Sullivan & Cromwell when I arrived. LD: Why did you go into litigation? KPS: It’s funny. When I was in law school, at least, the Texas firms were pushing me to go into a real estate practice or, in their words, “a less contentious” practice. They saw litigators as being louder tough guys. I remember being questioned a lot about why I was possibly interested in litigation, and there were suggestions that I might be a better fit because of my personality to do something other

BY JOHN RYAN than litigation. That just egged me on and made me completely convinced that I had to become a litigator, right or wrong. I certainly didn’t find that kind of attitude in New York or at Sullivan & Cromwell. It was refreshing to say I wanted to do litigation and nobody thought twice. LD: Why did you become a federal prosecutor? KPS: One of my first cases at Sullivan & Cromwell was participating in a nine-month bench trial up in Boston for the Kodak v. Polaroid patent infringement litigation, which was the largest patent infringement case up to that point. We were litigating on behalf of Kodak. It was a fascinating trial. I worked very closely with the partners on the case to help prepare for trial; it was a wonderful learning experience. But in the breaks at trial, the court would have the AUSAs, the prosecutors, come in for various hearings or conferences and the like. In contrast to the case that I was on, where everybody was 15, 20 years my senior and incredibly skilled in the courtroom, the AUSAs were my age and they were there themselves doing trials. It looked like a wonderful way to get trial experience, coupled with really fascinating cases. Also, for whatever reason, I had always had an interest in criminal issues. I had worked at a juvenile facility as an intern in high school. Doing something on the criminal law side had great appeal. LD: You were there for a while, about seven years. Did you ever think of becoming a career prosecutor? KPS: The U.S. Attorney’s Office in Manhattan is a relatively young office and people tend not to spend their careers there. Some do, but really very few. It’s the mold that you do that for a while and then move on. I loved that job and it was a job that I believe very strongly should be filled with people who are so excited to do it each and every day. When it starts getting routine or old or things seem, frankly, easier, you know in your heart when it’s time to move on. I never wanted to be one of those civil servants who didn’t give my all. Before I got to a point where I was waning in the job, I left. In my mind, I left a little early. I left when I still really loved that job, when it was still extremely exciting. At Sullivan & Cromwell, one of the great opportunities that we have is that you can be a generalist. I was not sure what kind of law I wanted to practice coming out of the U.S. Attorney’s Office. I was not

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Clifford Aronson

Peter Barbur

SKADDEN NEW YORK

CRAVATH NEW YORK

Lisa Arrowood

Robert Baron

ARROWOOD PETERS BOSTON

CRAVATH NEW YORK

Kim Askew

Judy Barrasso

K&L GATES DALLAS

BARRASSO USDIN NEW ORLEANS

Christine Azar

Scott Barshay

LABATON SUCHAROW WILMINGTON

PAUL WEISS NEW YORK

Baher Azmy

Charlene Barshefsky

CENTER FOR CONSTITUTIONAL RIGHTS NEW YORK

WILMERHALE WASHINGTON, D.C.

Andrew Bab

George Bason

DEBEVOISE NEW YORK

DAVIS POLK NEW YORK

Maria Baldini-Potermin

Hilarie Bass

MARIA BALDINI-POTERMIN & ASSOCIATES CHICAGO

GREENBERG TRAURIG MIAMI

Corinne Ball

John Baughman

JONES DAY NEW YORK

PAUL WEISS NEW YORK

Karen Ballack

Sam Baxter

WEIL GOTSHAL SILICON VALLEY

MCKOOL SMITH MARSHALL, TEXAS

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at all convinced that I wanted to do white-collar law. I wanted a variety of litigation and I wasn’t sure, having been a prosecutor for so long, how much I would enjoy the defense side. I felt like I would have a lot of professional freedom at Sullivan & Cromwell. LD: As it turned out, you did end up doing a lot of criminal work, though with a mix of many civil cases. KPS: I had a wide variety of civil cases when I came back from being a prosecutor. But I started helping out one of our partners who had a criminal case that was going to trial. Vince DiBlasi asked me to help him on this criminal case representing an individual. At first, I somewhat resisted and so he said, “Why don’t you just come to a meeting? You’re going to really like this client.” As he predicted, I really liked the client. I got to know the client and his wife. I realized that I could make a difference in helping people through one of the most difficult situations in their lives. I felt like I could really add value. I was very passionate about helping them. It’s wonderful to be a prosecutor. It’s important work and it is extremely rewarding work professionally. But on the defense side it’s also extremely rewarding to have the privilege to represent clients that you care about. That spoke to me in a way that sometimes some civil cases didn’t, in that a civil case may not be something your client is thinking about each and every day. It’s very different to be facing jail time. I then started doing more corporate investigations on the defense side and really liked the work. LD: You left again for a very senior position at the Justice Department. How did that happen? KPS: I received a call from Jim Comey, who’s the FBI Director. At the time, he was just appointed as the U.S. Attorney for the Southern District following Mary Jo White – which of course was a tough act to follow – and he was assembling his senior team. He called me totally out of the blue and asked if I would consider serving as his criminal division chief. To be honest, that was always a dream job. It took me no time to say yes. The only complicated part was that I was a partner at Sullivan & Cromwell and I was engaged in a lot of important matters. Jim needed a team that could become available pretty quickly. I talked to the firm first and they were, of course, understanding and supportive. Then I had to talk to each of my clients and that was difficult, but they were extremely gracious and we were able to do transitions on cases. LD:That job must be challenging.

KPS: It is. First of all, you have all of the assistant U.S. attorneys, around 165 AUSAs, who are in the criminal division. Part of what you do together with the U.S. Attorney and Deputy U.S. Attorney is to set priorities, to manage the office so that you are addressing the most important threats, if you will, in your district. That is going to be a wide range of cases from corruption to organized crime to terrorism to international narcotics trafficking to all of the white-collar cases – all of which the district is very famous for – but also just the day-to-day cases that people may not think about as much. It has such a spectrum of cases and you have to ensure that the most important cases are moving along and that appropriate charging decisions are made. You want to make sure that there are structures in place and reviews so that mistakes aren’t made. Charging someone falsely is a terrible thing. AUSAs need to be well trained, to understand how to build a case and to act fairly. It takes a lot. It’s a lot of management, but it’s also getting involved in helping to oversee and direct particular cases. LD: You also tried the Martha Stewart case. KPS: Jim Comey asked me to try the Martha Stewart case, but normally I was not in the role of trying the cases as chief of the criminal division because it takes too much time. You really have to step down to try a case. I had to get someone to cover for me as the acting chief while I was on trial for that case. LD: How would you describe your style as a trial lawyer? Has it changed over the years? KPS: It probably has changed; it’s hard to know. People always say to be successful as a trial lawyer you have to be yourself, and that’s what I try to do. I try not to pretend I’m somebody else in addressing the jury or the judge. So my personality in front of the jury matches my personality out of the courtroom. My style is not to be bombastic. I like to think that I have credibility with the judge and with jurors. I’m usually very polite to my opposing counsel. I’m not one to tend to make accusations. I’m not a screamer in the courtroom, but sometimes I can be a little theatrical and that can be fun. I think I tend to have a softer approach in the courtroom than many of my adversaries, and that sometimes throws them for a loop. LD: What does it take to succeed in negotiating for clients under investigation, outside of court? KPS: Again, I’d like to believe that my reputation is someone whose word you can trust. I like to be a

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Jere Beasley

David Bernick

BEASLEY ALLEN MONTGOMERY, ALA.

PAUL WEISS NEW YORK

David Beck

Erica Berthou

BECK REDDEN HOUSTON

DEBEVOISE NEW YORK

William Beck

Vineet Bhatia

LATHROP & GAGE KANSAS CITY

SUSMAN GODFREY HOUSTON

Candace Beinecke

Robert Bingle

HUGHES HUBBARD NEW YORK

CORBOY & DEMETRIO CHICAGO

Max Berger

Bruce Birenboim

BERNSTEIN LITOWITZ NEW YORK

PAUL WEISS NEW YORK

Martha Bergmark

Lisa Blatt

VOICES FOR CIVIL JUSTICE WASHINGTON, D.C.

ARNOLD & PORTER WASHINGTON, D.C.

Barry Berke

Jeff Bleich

KRAMER LEVIN NEW YORK

DENTONS SAN FRANCISCO

Sean Berkowitz

Christopher Boies

LATHAM CHICAGO

BOIES SCHILLER NEW YORK

Steve Berman

David Boies

HAGENS BERMAN SEATTLE

BOIES SCHILLER NEW YORK

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very straight shooter in negotiations, as in all of my lawyering. Bluffing and raising things that are not really important for the sake of getting leverage are not tactics I use; I tend to be very straightforward. Sometimes folks find it refreshing because I’ll just be quite candid with them about what the goals are and what we can and can’t do in a negotiation. I find that if folks want to try to resolve a matter, if you can drop the pretense and really talk through what are important issues on both sides and see if there’s a way to find common ground – sometimes there is, sometimes there’s not – it is better to be straightforward.

KPS: Yes, there was a period of years where there were really no guilty pleas by financial institutions. A couple of years ago, there were a couple of highprofile guilty pleas, including the BNP case, but it was one of two. Then after that, we’re seeing more and more pressure on our clients to have financial institutions actually plead guilty rather than have an agreement such as a deferred prosecution agreement. There still are some, but increasingly prosecutors are forcing entities to plead guilty and that is a change. That’s a real shift from a number of years back.

It can be difficult because sometimes prosecutors or the SEC or the folks on the other side really do vilify our client. Sometimes it’s hard for them to hear our requests as being reasonable, in part because they have such a bad view of the client, right or wrong. You try to help them deal with you as a person, different from your client, just trying to see if there’s a common way and a common path to move forward. These can be very difficult negotiations.

KPS: Sure, it can be very difficult for clients to accept that. But it’s not like you’re offering advice that they haven’t thought about because our clients are typically sophisticated. They read the papers and they see that increasingly the government is relying on guilty pleas rather than deferred prosecution agreements, which have been the subject of a fair amount of criticism. Increasingly, clients are expecting that to be part of the dialogue. It’s something I think most sophisticated practitioners are mindful of when an investigation begins.

LD: Has it become harder over the past several years with all the public anger over corporate fraud? KPS: It’s a very difficult atmosphere for any whitecollar defendant or client who’s faced with an investigation. It’s a very, very challenging atmosphere. The matters differ: sometimes you have a lot of negotiations where the government will address a lot of your concerns and needs, and other times you’re confronted with very difficult negotiations where there’s no flexibility on the other side. Sometimes you’re confronted with close to a take-it-or-leave-it settlement. Those can be extremely difficult. I think the climate has had a significant impact on what can be achieved in a settlement. I think having lawyers who understand what can be achieved in that climate, who understand what is negotiable and what’s likely not negotiable can be helpful in addressing the client’s concerns so you can predict in a negotiation what the areas are and where the client might want to focus. Some of the areas are not going to be very likely. You can help guide your client so that their expectations are right – if it’s a public entity and you are reporting to the board, the board is going to need to understand fully what the scope of liability is, what’s possible in negotiations for settlement. LD: In some of your recent settlements, such as the case involving Barclays and another involving BNP Paribas, guilty pleas were included in the deals.

LD: Is it difficult to educate clients about that?

LD: Do those massive cases signify how your practice has evolved since returning to Sullivan? KPS: It is a mix, which makes it fun. One of the things I really enjoy about my practice is that there’s a large international component to it, which I happen to love. I think cross-cultural issues are really interesting and I like dealing with non-U.S. based clients. They have a different framework and there can be some really interesting legal issues about how to work in one country when you have an overlay of different applicable laws and systems. But I have plenty of domestic clients as well, including a fair number of individuals and smaller companies. There’s a lot of variety. Each case is different and each one has its own story, so to speak. The clients are interesting. Many of the clients I’ve come to know over a number of years and have very close working relationships with them, but there are also new matters with new industries, with new issues. There’s constantly something new that you can learn about whether it is getting to know a new organization or an industry or a really tricky financial product, so it’s a fun job because there’s always something new to learn factually and legally. There’s no shortage of work out there to keep you excited about what you do. Read the full Q&A at www.lawdragon.com/lawyer-limelight-karen-patton-seymour.

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TED MIRVIS TED MIRVIS TIPTOED UP THE STAIRS TO

the attic in his family’s new home at 158 Algonquin Road in Hampton, Virginia. The inquisitive six-year old found boxes and could not resist the temptation to stealthily lift their edges and peer inside. His newfound treasure confounded him. They were huge books! – in whose company he spent magical hours. After some time and pondering, he concluded they must be law books. His father had been sent South from New York to be the rabbi in Hampton, so the young Mirvis reasoned the books were probably not his father’s religious texts. Hmmm.

“Are you a lawyer?” he looked up one day and asked his mom. He knew she also worked as the accountant and buyer of her family’s clothing business, Sear’s Department Store, which catered to the large military presence in Hampton and around Norfolk, just across the Bay. “Yes,” Lena Sear Mirvis, told her son. She was also a lawyer, having read the law after graduating from Duke. In 1937, she took the bar and became one of the first women admitted in the Commonwealth of Virginia. For those who know Mirvis, his pedigree is not surprising. He’s been called the greatest mind in corporate litigation, and his cases comprise a treatise on corporate governance battles. He’s the lawyer Bank of America turned to when they needed a mastermind to steer them through the financial collapse fallout. And, when the NASD turned its jaundiced eye toward Kenneth Langone’s firm, Invemed Associates, supposedly favoring certain of its clients with pieces of hot IPOs in the 1999-2000 craze, Marty Lipton reportedly told the Home Depot billionaire, “There’s only one person who can save you.” And he did. Lawdragon: There’s a mystique to becoming a partner at Wachtell. How did you join this firm? Ted Mirvis: I’m the luckiest man on the face of the earth. When I joined Wachtell, no one at Harvard Law School had heard of Wachtell. It was 1976 and there was no Internet, no email, no American Lawyer. There was no information for students about law firms. So most of the people on law review with me assumed I had good grades but that I must have

PHOTO BY: LAURA BARISONZI

BY KATRINA DEWEY been convicted of a crime. They’d say, “What is that, a garment shop?” But when I was a second year, Wachtell wrote to everyone on law review. And as I was opening the letter, another 2L walking by said, “That’s a great firm.” That night, I got a call from Nathan Lewin, a founder of Miller Cassidy, which was almost entirely Supreme Court clerks. I had worked with him at the National Center for Jewish Policy Studies one summer. And Lewin said Wachtell was a great firm – that I should sign up to see them. Within the next 10 days, I was talking to my Mom, who came to New York once every season to buy fur coats for the family store from a guy named Katcher, who was the uncle of Richard Katcher, who had just left Simpson Thacher for Wachtell. And then during my clerkship year, Judge Friendly called me into his chambers one day. He knew I wasn’t trying to get a U.S. Supreme Court clerkship after I completed my clerkship with him. And he asked, “Where are you going next year, Ted?” I didn’t have a real answer and I didn’t want to tell him I had a job with this firm no one’s heard of. He said, “What firm?” and I said, “It’s a small firm. They do a lot of securities work.” And he said, “WHAT’S THE NAME OF THE FIRM?” So I told him Wachtell. “Oh! That’s Marty Lipton’s firm. That’s a great firm.” LD: I guess given Marty Lipton and Bernie Nussbaum, among others at the helm, it’s no huge surprise you became a corporate litigator. But how did you arrive at that rather than deals, and how did you become preeminent in corporate governance disputes? TM: I didn’t set out to do anything. When I was asked if I was going to be a litigator or corporate lawyer, I’d say “I don’t know.” I was interviewing at some firm and said I didn’t know. And whoever was interviewing me said, “That’s not a good answer. You should say one or the other.” Civil procedure had been my favorite class in law school – I loved Paul Bator and David Shapiro – so from then on I said I wanted to be a litigator. Then in the early 1980s, I’m a young whippersnapper and I’ve made partner. I get a call at 8 a.m. from a partner who says, “Can you fill in for me around the corner at 49th and Park? I’m on a panel on takeover litigation with [Delaware Supreme Court] Justice [Andrew] Moore?”

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Mary Bonauto

Bruce Broillet

GAY & LESBIAN ADVOCATES & DEFENDERS BOSTON

GREENE BROILLET LOS ANGELES

Andre Bouchard

Paulette Brown

DELAWARE CHANCERY COURT WILMINGTON

LOCKE LORD MORRISTOWN, N.J.

Jamie Boucher

Rodney Brown

SKADDEN WASHINGTON, D.C.

CASCADIA LAW GROUP SEATTLE

Ray Boucher

Andrew Brownstein

BOUCHER LLP LOS ANGELES

WACHTELL LIPTON NEW YORK

Ted Boutrous

Jacob Buchdahl

GIBSON DUNN LOS ANGELES

SUSMAN GODFREY NEW YORK

David Braff

Susanna Buergel

SULLIVAN & CROMWELL NEW YORK

PAUL WEISS NEW YORK

Jennifer Bragg

John Buretta

SKADDEN WASHINGTON, D.C.

CRAVATH NEW YORK

Stephen Breyer

Karen Burgess

U.S. SUPREME COURT WASHINGTON, D.C.

RICHARDSON & BURGESS AUSTIN

Brad Brian

Elizabeth Cabraser

MUNGER TOLLES LOS ANGELES

LIEFF CABRASER SAN FRANCISCO

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The answer is “Yes!!” The Unocal takeover case was starting and they’re talking about a director’s duty of care and Smith v. Van Gorkom. The panel is Justice Moore, the general counsel of the SEC, Gil Sparks from Morris Nichols and Steve Rothschild from Skadden, the number one Delaware litigator – and me. There was literally no law from the Delaware courts except stray sentences about the proper role of directors in fighting a tender offer. We were not involved in Unocal. So I said, “If you step back and think about the Delaware statute, to approve a merger you need approval of the board of directors first. Shareholders cannot vote to approve a merger unless the board of directors has approved it. There is no such thing as a hostile merger. I don’t see why tender offers should be any different. Why should the board of directors not have that same power when it comes to whether a tender offer should go forward?” And Drew Moore looked over at me and said, “That’s a really good point.” The Unocal decision came out not long after, and it was the first in Delaware to recognize the power of the board of directors to stop hostile tender offers. And the pivotal point is that

on a panel. I gave a talk on “ABC, Anywhere But Chancery.” The plaintiff corporate securities bar had begun to say they were not going to sue in Chancery anymore and instead were going to bring their cases in other jurisdictions that were less sophisticated and where their cases had greater settlement value. I thought that was a terrible thing for the system. So I asked “Why can’t a corporation adopt by charter a provision that says a charter is a contract so it can have choice of forum provisions.” The late Frank Balotti of Richards Layton was sitting next to me and he said, “What are you saying?” And I said, “I think a corporation can put in its charter that all shareholder claims have to be brought only in the courts of Delaware.” He looked at me in front of 100 people and said, “That’s the most ridiculous thing I ever heard.” But people began to adopt it, and eventually in the Chevron case [now Delaware Chief Justice Leo] Strine approved it. There are now more companies that have the Mirvis bylaw than the poison pill. Thousands of companies have adopted the Delaware exclusive forum provision.

“ONE OF THE BEST ORAL ARGUMENTS I EVER MADE WAS IN 1982 IN FRONT OF JUDGE WALTER STAPLETON IN DELAWARE FEDERAL DISTRICT COURT. WE REPRESENTED CITY SERVICE TRYING TO FIGHT OFF A HOSTILE BID FROM MESA AND T. BOONE PICKENS. I LOST.” under Delaware Corporate Law section 251 directors are the gatekeepers of mergers, so therefore under section 141(a), they should have the same power with respect to tender offers. LD: That must have felt pretty cool. Is it safe to assume that experience had an impact on your focus on scholarly writing and speaking on panels about corporate governance, as you do regularly at the Tulane Corporate Law Institute? TM: Absolutely. One of the things I’m most proud of is the exclusive forum bylaw, which I first proposed

LD: What other cases have you been particularly proud of over the years? TM: One of the best oral arguments I ever made was in 1982 in front of Judge Walter Stapleton in Delaware federal District Court. We represented City Service trying to fight off a hostile bid from Mesa and T. Boone Pickens. I lost. What I remember most is when I got back to the office around 8 p.m. I got a phone call, and I didn’t know who it was. The guy starts talking to me and I figure out it’s an arbitrageur. So I said, “I’m not

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Bradley Caldwell

Jonathan Cedarbaum

CALDWELL CASSADY DALLAS

WILMERHALE WASHINGTON, D.C.

Tim Cameron

Dale Cendali

CRAVATH NEW YORK

KIRKLAND & ELLIS NEW YORK

Ralph Campillo

Denise Cerasani

SEDGWICK LOS ANGELES

WHITE & CASE NEW YORK

Raoul Cantero

Paul Cereghini

WHITE & CASE MIAMI

BOWMAN & BROOKE PHOENIX

Paul Cappuccio

Trina Chandler

TIME WARNER NEW YORK

VINSON & ELKINS HOUSTON

Mats Carlston

Erwin Chemerinsky

WINSTON & STRAWN NEW YORK

UNIVERSITY OF CALIFORNIA, IRVINE, LAW SCHOOL IRVINE, CALF.

Bill Carmody

Evan Chesler

SUSMAN GODFREY NEW YORK

CRAVATH NEW YORK

James Carroll

Ken Choe

SKADDEN BOSTON

HOGAN LOVELLS WASHINGTON, D.C.

Douglas Cawley

Bernard ‘Buddy’ Clark Jr.

MCKOOL SMITH DALLAS

HAYNES & BOONE HOUSTON

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going to talk to you.” But what he said was, “We figured since they sent such a young guy to argue, City Service must have a white knight and they don’t care about the motion; they’re going to sell anyway. But we were all in the courtroom and when we saw what a good job you did, we thought maybe you don’t have a white knight.” One of my most fun victories was winning both federal and state court motions to dismiss for Salomon Brothers when they were sued by [Vincent Murphy] one of the original founders for supposedly breaching fiduciary duties to him and the other former partners after the firm merged with Philipp Brothers. After I got the federal case dismissed by Southern District of New York Judge Morris Lasker, the plaintiffs hired Arthur Liman and sued in state court. We won the state court equivalent of a motion to dismiss. Then, in my first appellate argument ever, I go down by myself and Arthur Liman is there with this huge Paul Weiss team. He gets up and says to the judges, “Not only should you reverse, you should grant judgment in our favor.” And I’m thinking, “It’s one thing to go home and say the dismissal was reversed, but it’s another to say, ‘We just lost the case.’” I argued for 25 minutes and on Dec. 13, 1988, we got the decision. “Judgment is hereby affirmed. 5-0. Argued by Arthur Liman and Theodore Mirvis.” LD: And there are a slew of other headliner cases, including representing Airgas in the Air Products takeover. TM: Nobody thought we were right in our battle to defeat the Air Products hostile takeover. I thought I understood the bylaw issue very well, and if you can be passionate about a legal issue, I was passionate about that one. My longest oral argument was for Newmont Mining in 1987 fighting a hostile takeover bid from Pickens. I was not feeling well, threw up twice on the way down. But my argument went over two hours and I was in the zone. We won. One of the longest-running matters lasted nearly 10 years. We represented MCA in connection with the Matsushita acquisition in a very complicated stockholder claim. On behalf of MCA shareholders, they claimed that MCA head Lew Wasserman had a sweetheart deal in the sale, and we reached a settlement of the Delaware state court claim. That was challenged ultimately in the U.S. Supreme Court, where Barry Ostrager, then of Simpson Thacher, argued and won a decision that state court settlements, including in

the Court of Chancery, can as a constitutional matter release federal claims arising from the same facts, including claims within the exclusive jurisdiction of the federal courts. That was a critical doctrinal point that allowed deal litigation to proceed in Chancery. I must have written 30 briefs in that case. LD: One of the more intriguing things about you is that you are by no means just another law firm partner, whatever that means. Everyone is always interested in your long hair, and I hear you even have a neck-tie made after you now. TM: When I defended Ken Langone, I told him that I would not cut my hair until he was totally vindicated. I have no idea why I said that. That was in 2003. And even though the case against him was completely dismissed in 2006, he asked me to keep to my promise even afterwards. So I have. And the tie story is funny. I had a lucky tie that I’d worn at every oral argument. It was very frayed and I decided to retire it after the win in the Invemed matter. And so Sabrina Ursaner at Wachtell, who had worked on the case with me, claimed she could have it replicated. But apparently she told the tie maker it had to be EXACTLY the same as the old tie. So when they sent back the new one, it had the same frays and wear as the old one. And now Turnbull & Asser are marketing a tie with fray marks based on her obsession with detail. LD: It’s also important that people know of your close ties to and family in Israel. Can you talk a bit about that? TM: Sure. My dad spent the last 20 years of his life in Jerusalem after he retired from the rabbinate, and my daughter lives there now with her husband and seven of my grandkids. So my wife and I visit as often as we can, and I have been able to teach some classes at Hebrew University law school and also participate on CLE -type panels with judges of the new Tel Aviv Economic Division of the District Court, a kind of Israeli Chancery Court. LD: And what’s the Yom Kippur Open? TM: Oh, that’s a small golf outing I started 20 years ago. We play every year around Yom Kippur with about 20 friends. It’s just a funny name, and we raise some funds for the NYU Langone Medical Center. The YKO is also a national sponsor of the U.S. tour of the Israeli Philharmonic Orchestra. It’s a great group of people.

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GLENN GERSTELL PRACTICING AT A LARGE LAW FIRM FOR

39 years may not seem like the most natural lead up to serving as General Counsel of the National Security Agency, but Glenn Gerstell certainly has had no regrets since being sworn into the position in August 2015.

The former Milbank Tweed Hadley & McCloy partner and Columbia Law grad was a perennial Lawdragon 500 member for his prominence in handling complex transactions within the telecommunications industry. Working at the forefront of that practice enabled Gerstell to develop an expertise in infrastructure, cybersecurity and communications issues. He also had a background in public service by serving on the D.C. Homeland Security Commission and the National Infrastructure Advisory Council, among other positions. Also crucial to Gerstell’s preparation for the role was his deep experience in managing lawyers and law offices. He headed Milbank’s global communications practice, spent 18 years as managing partner of the firm’s Washington, D.C., office, and had also earlier managed the firm’s Singapore and Hong Kong offices. Of course, managing a diverse team of 100 lawyers for an intelligence agency and serving as the principal legal advisor to NSA Director Adm. Michael S. Rogers – and at a time when the public has heightened concerns over privacy issues – is a different world altogether. Gerstell also coordinates on legal matters with the White House and other government agencies, which he describes as “the most demanding and fascinating” part of his job. Lawdragon: Please talk a little about how this job came about. Glenn Gerstell: I always thought I’d work for a few years in private practice and then go into the federal government as a lawyer in some capacity, since I’d had a long interest in politics and public policy. But my law firm experience turned out to be so varied and challenging – taking me literally around the globe – that I got stuck in a (wonderful) rut and stayed with Milbank Tweed for 39 years. Knowing that the firm’s mandatory retirement age of 65 was just a few years away, I realized that this might finally afford me the opportunity to fulfill my lifelong desire to be involved in government. I knew I didn’t want to simply retire; I definitely wanted to do public service in some form.

PHOTO BY: ELI MEIR KAPLAN

BY JOHN RYAN Through discussions with friends in Washington, I discovered that during a second term of a Presidential administration, there were always deputies who were seeking to move up to the boss’ job when a vacancy arose, so it was surprisingly hard for an outsider to break into the system at a more senior level. But I got lucky when a friend who was the Pentagon’s General Counsel called me and said I should apply for an upcoming vacancy at the National Security Agency. At first, I thought my friend had dialed the wrong number, but I was encouraged to apply since, although I didn’t have a deep national security background, I did have homeland security experience and international law firm management skills. After a series of interviews, I was selected for the position as the General Counsel of the NSA. LD: Beyond that, you joined the NSA at a very interesting and challenging time for the agency, in the post-Snowden era and shortly after the USA Freedom Act changed how the NSA could search phone records. Did you have any reservations? GG: Actually, the fact that the NSA was facing all these challenges made the position almost irresistible. I knew that the agency was still trying to define itself for the public as well as overcome a lack of knowledge, exactly at a time when the demands on the agency were increasing in the counterterrorism and cybersecurity fields. If you’ve spent a career advising clients and solving problems, then the NSA was sure to put your skills and experience to the test. And I wasn’t disappointed in that regard! LD: In addition to your practice, you also held multiple management roles at the firm. Can you draw some comparisons between your past roles and your present job? GG: First, on a personal level, while I knew I was making a big change, I have to confess I really didn’t appreciate the challenges of transitioning from being a partner at a private law firm – with its relatively flat organization, great freedom and flexibility to pick your clients and projects and the ability to control your own life – to a federal national security position, in a military hierarchical organization, with almost everything being handled at the top secret level, and where your day is subject to the unpredictable disruptions of global events. That barely touches on the fundamental differences, but it was a complete

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CAHILL GORDON NEW YORK

PHILLIPS & COHEN WASHINGTON, D.C.

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CRAVATH NEW YORK

SOUTHERN POVERTY LAW CENTER MONTGOMERY, ALA.

Paul Clement

Robin Cohen

BANCROFT WASHINGTON, D.C.

MCKOOL SMITH NEW YORK

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WEIL GOTSHAL REDWOOD SHORES, CALIF.

CORBOY & DEMETRIO CHICAGO

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Robert Corn-Revere

HOGAN LOVELLS WASHINGTON, D.C.

DAVIS WRIGHT WASHINGTON, D.C.

Linda Coberly

Nina Cortell

WINSTON & STRAWN CHICAGO

HAYNES & BOONE DALLAS

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Todd Cosenza

PAUL WEISS NEW YORK

WILLKIE FARR NEW YORK

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GREENBERG TRAURIG ATLANTA

CADWALADER NEW YORK

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change, even down to the fact that I could no longer tell my wife almost anything about what I did at the office that day. Second, the professional experience is unlike anything I’d seen in the private sector. Most significantly, it’s impossible to overstate how rewarding it is to know that you are truly helping (even in a small way) to keep our country and its citizens safe, whether it’s from a cyber attack or terrorist incident. I loved being a lawyer in private practice and especially liked when I worked on financing infrastructure or something that was going to have a positive impact on people’s lives, but it’s just not the same feeling you get when you realize your actions are part of an effort to, say, rescue an American held hostage overseas. So corny as it may sound, it’s really a privilege to be in that position. You’d have to be pretty blasé not to get a kick out of sitting in a classified briefing with the Directors of the FBI and the NSA before a Congressional oversight committee. But it’s not just fun; it’s mostly sobering work with serious consequences, occasionally in situations where there’s no good solution. Everyone is working hard, often passionately, so sometimes the interagency discussions can get a little heated, but in the end we’re all working for the same government with the same goals. Even though the national security sector of the federal bureaucracy is enormous, one person can indeed make a difference. Of course you’d expect this at the highest levels of the President and Cabinet members, but lawyers throughout the government are often in a critical role to shape the debate and affect the outcome. I recall one situation where to my surprise, after just a few months on the job, an observation I made on a conference call with other components of the Intelligence Community and the White House staff was accepted and wound up being reflected in an important document signed by the President. LD: What about learning the ropes of the new job, compared to taking on a new deal or client at Milbank? GG: In the private sector, while I’d have to come up to speed on knowing a new client’s business or the facts of a particular case, again that’s nothing like being immersed in a completely different and technologically complex world of signals intelligence and information assurance. So much of the first year on the job was simply spent learning what the NSA does and how it interacts with the rest of the federal government and our allies around the world.

The NSA has a superb legal department of roughly 100 attorneys, who work in six offices: intelligence law, administrative and ethics law, cybersecurity law, litigation, legislation, and acquisition law. From the names of these offices, it’s pretty obvious what each one does, but you’d be surprised at the breadth of legal issues that come up. We answer questions about everything from real estate transactions to responding to international cyber attacks. I rely on the attorneys in these offices for expertise, since I can’t hope to replicate their knowledge and decades of experience. My job is to manage the legal department, to serve as the principal legal advisor to the NSA Director, and to help coordinate legal aspects of the agency’s engagement with the White House, Congress, and the other departments and agencies. As you might expect, the latter coordination role is unquestionably the most demanding and fascinating. While the work is totally different from my former job, the skills called for are the same: the ability to think and act strategically and to marshal facts and rationales in a compelling and persuasive way, and having the political sensitivity to know when and how to approach another organization, whether to jointly solve a problem or to get them to accept your position on something. I found invaluable the lawyer’s training to anticipate the other side’s objections, and craft one’s approach and arguments accordingly, and to avoid personalizing or demonizing the other side in professional controversies. LD: I think people have some ideas, accurate or not, about the type of lawyers that want to join big law firms. What types of lawyers join the NSA? Is there a particular “type” and how would you assess the pool of talent compared to private practice? GG: To my surprise, many of the people – lawyers and non-lawyer senior officials – have been at the NSA for decades. The draw of the “mission” is powerful and keeps highly skilled individuals at the agency even though they could earn multiples of their salary at a law firm or in Silicon Valley. I’ve been incredibly impressed with the overall caliber of people at senior levels in the national security sector; we’re fortunate as a country in this regard. At the junior end, we’ve had no difficulty in attracting top law school graduates. For many of them, the chance to work in the national security field, with a lot of responsibility right away, perhaps on matters that are in today’s headlines, is far more interesting than doing due diligence or document production for a law firm as a junior associate. Not that the law firm or in-house

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Kelly Dermody

UNIVERSITY OF CALIFORNIA, BERKELEY, BOALT HALL BERKELEY, CALIF.

LIEFF CABRASER SAN FRANCISCO

Steve D’Amore

Patricia Dodge

WINSTON & STRAWN CHICAGO

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Lisa Damon

Diane Doolittle

SEYFARTH BOSTON

QUINN EMANUEL REDWOOD SHORES, CALIF.

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Bill Dougherty

COVINGTON & BURLING WASHINGTON, D.C.

SIMPSON THACHER NEW YORK

Frank Darras

Mike Dowd

DARRASLAW LOS ANGELES

ROBBINS GELLER SAN DIEGO

Susan Davies

David Drummond

KIRKLAND & ELLIS WASHINGTON, D.C.

GOOGLE PALO ALTO

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Carey Dunne

ALSTON & BIRD ATLANTA

DAVIS POLK NEW YORK

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Patrick Dunphy

CORBOY & DEMETRIO CHICAGO

CANNON & DUNPHY BROOKFIELD, WI

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company counsel path are bad ones, just that they have a different set of costs and benefits. LD: Can you discuss what your role will be with the reauthorization of Section 702 of the FISA Amendments Act – both in terms of responding to legal challenges to the provision and what might be your public relations role in explaining the importance of this tool balanced with 4th Amendment privacy rights? GG: When the new President takes office, he or she will have only 11 months to deal with the fact that one of our country’s most important national security statutes will be about to expire in December 2017. I’m referring to Section 702 of the Foreign Intelligence Surveillance Act, which is one of NSA’s most valuable programs. Simply put, its reauthorization is crucial to our efforts to help keep America safe. The 702 program enables us to conduct electronic surveillance on foreign targets who are located overseas. It has proven critical to helping our government understand international terrorist organizations, and it has led to the discovery of previously-unknown terrorist operatives and plots. For example, a few years ago, we were able to use our authority under Section 702 to intercept emails from an Al Qaeda courier in Pakistan to an individual in the U.S. that discussed bomb making. NSA passed this information to the FBI, who was able to use it to help identify the individual in the U.S. as Najibullah Zazi. The FBI was then able to track Zazi to New York City, where he and associates were planning to detonate explosives on the subway. He was later arrested and pled guilty, and he now awaits sentencing. Everyone at the agency is very sensitive to the fact that in carrying out the Section 702 program, some communications from U.S. citizens might be unintentionally scooped up. This is called “incidental collection.” NSA has lots of rules and regulations in place about how to handle this type of collection in order to minimize the impact on Americans’ privacy, and the attorneys in my office work hard to ensure that NSA complies with all of those safeguards. It’s also important to point out that the independent Privacy and Civil Liberties Oversight Board reviewed the 702 program in depth and found that, at its core, it satisfies 4th Amendment standards. Congress wanted to keep the 702 program on a short leash, which is fully understandable given the concerns about the potential impact on the privacy of U.S. citizens, and as a result, the program must be reviewed and reauthorized every few years. My office

will play a large role in the reauthorization effort, but it will involve the entire Intelligence Community and DOJ. Attorneys in my office will be heavily involved in discussions with Congress, oversight bodies, civil liberties and privacy advocates, and the public regarding the reauthorization. This public education role can and will include everything from explaining new or changed provisions of Section 702 to identifying and vetting additional information about the program that can be released at the unclassified level. LD: Can you explain how you interact with other agencies with which you have overlapping security concerns. How does your office fit into and participate in the interagency coordination process? GG: One of the best parts of my job – which I find the most fun and which I least expected – is that NSA frequently plays a leading role in interactions with other agencies on key national security issues. A good example involves the Privacy Shield agreement, in which we worked with other agencies to develop protections for transferring personal data between Europe and the U.S. These sensitive negotiations were led by the State Department and Department of Commerce, but NSA was heavily involved in the process because of European concerns regarding electronic surveillance. Even though I joined the agency only last year, I was quickly brought up to speed on those negotiations, reviewing drafts of the agreement and participating in interagency policy discussions. Attorneys in my office are now working closely with the Intelligence Community to develop policies and procedures for the implementation of the Privacy Shield agreement, including those procedures for handling surveillance complaints. Privacy Shield was a great example of the type of collaboration that goes on across agencies to ensure that the government takes a unified approach to complex policy issues. My office also has a voice in interagency policy discussions on topics like encryption, defensive and offensive cyber measures, and the new cyber incident policy. The FBI and DHS, in particular, often ask NSA for technical assistance because of our expertise in cybersecurity issues. We review these requests to make sure that NSA has the authority to assist and that fiscal implications are considered, and to help evaluate the policy implications of the agency’s involvement. My office often assists the agency in determining the best role to take in each situation, and in many cases, we take the lead during discussions with other federal agencies on these high-profile issues.

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Adam Emmerich

DURIE TANGRI SAN FRANCISCO

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Brian Duwe

Miguel Estrada

SKADDEN CHICAGO

GIBSON DUNN WASHINGTON, D.C.

Karen Dyer

Greg Ezring

BOIES SCHILLER NEW YORK

PAUL WEISS NEW YORK

Barack Echols

Ward Farnsworth

KIRKLAND & ELLIS CHICAGO

UNIVERSITY OF TEXAS LAW SCHOOL AUSTIN

Scott Edelman

D. Cameron Findlay

MILBANK NEW YORK

ADM CHICAGO

Jay Eisenhofer

Jeffrey Fisher

GRANT & EISENHOFER NEW YORK

STANFORD LAW SCHOOL STANFORD, CALIF.

Dianne Elderkin

Ora Fisher

AKIN GUMP PHILADELPHIA

LATHAM PALO ALTO

Michael Elkin

Patrick Fitzgerald

WINSTON & STRAWN NEW YORK

SKADDEN CHICAGO

Howard Ellin

Fidelma Fitzpatrick

SKADDEN NEW YORK

MOTLEY RICE NEW YORK

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name name FIRM FIRM FIRM (CITY)

Martin Lueck ROBINS KAPLAN (MINNEAPOLIS)


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MARTIN LUECK THERE MAY BE JUST TWO PLACES THE

Chairman of Robins Kaplan likes more than his Minnesota home: his family’s farm in Winner, South Dakota, and any courtroom, anytime, anywhere. Bring it. Martin Lueck leads one of the nation’s elite trial and litigation corps, with billions in wins from coast to coast, from $520M in the Eolas case against Microsoft to the much-contested and ongoing $7.25B Mastercard antitrust battle. So it may come as a bit of a surprise that Lueck meets questions about his craft and career with a good-natured, salt-of-the-earth attitude. That probably has quite a lot to do with his rise from a passionate music education student who loved jazz through his nighttime education at William Mitchell Law School, to his role as leader of the 230-all trial lawyer firm — an organization that he entered in 1983 as part-time law clerk and has never left.

Crucial to his success is his deft storytelling. Lueck says he got some of his storytelling talent from his father, a state patrol major who was popular as an after dinner speaker. Lueck has honed those skills to entrance juries with stories ranging from how a web browser is created to the magic behind a camera’s autofocus technology. We spoke as he and his wife Mallory made the 420-mile trek back to Minneapolis from Winner, accompanied by their Golden Retriever and pet fox. The prior weekend’s activities? According to Lueck, “glamorous things” like cutting cocklebur, barn repair, and mowing tree lines. Lawdragon: When did you decide to become a lawyer? Martin Lueck: Growing up, I wanted to be something different every week—from a fireman to a cell scientist. I liked science. I had a chemistry lab, and built model rockets. I caught bugs and studied them under my microscope. In high school I thought I would study physics or chemistry, but I also liked practical technical problems like working on machines with tools. I was a little worried about myself because I never could figure out what I wanted to be. LD: How did law school come about then? ML: After graduation as a music major from Winona State, I lived on a farm and took business classes

PHOTO BY: THOMAS STRAND

BY KATRINA DEWEY at University of Wisconsin, LaCrosse. I also taught music in southeastern Minnesota schools. I went into teaching because I was toying with a career in music. I found out I wasn’t a very good teacher, and I couldn’t make a living playing music. A principal I worked for had a PhD in literature. He had an outstanding literature collection, which he shared with me. We had spirited discussions about some of the great works of fiction, which eventually led to his suggestion that I go to law school. I don’t think he saw my future in teaching either. LD: How did you come to join Robins Kaplan? ML: In law school the American Trial Lawyers Association, now the American Association for Justice, sponsored a trial competition. My team won the Midwest regional competition in Olathe, Kansas. While we were preparing for the finals, our trial coach was also leading one of the first-ever National Institute for Trial Advocacy Training in-house programs for the Robins firm. He asked if I’d like to come over and demonstrate my closing argument for the Robins partners. I financed law school going to school at night, and working during the day in a small law firm. I worked straight through the summers and graduated in 3 ½ years. Robins Kaplan represented the opportunity I was looking for; and I made the most of it. Still, I literally had to prove myself at the end of the winter clerkship to get a job. And here I am 33 years later still proving myself every day. The competition was highly significant in another aspect. It was there that I met my wife Mallory who has been my source of strength and motivation and joy ever since. LD: Tell me a bit about you growing up. ML: I grew up in Roseville, a suburb of St. Paul. My father often appeared before the Legislature introducing bills related to public safety. He used to take me to watch night court in my formative years—real court, not the TV show. Looking back, the path to becoming an attorney may have been planted subtly growing up. He had been a navy pilot and aircraft mechanic, so when I was young I was more interested in tinkering with motors and building model rockets than preparing for a career in law. My mother was a homemaker, who grew up in a rural Minnesota

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T. Markus Funk

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Kenneth Gallo

REED SMITH NEW YORK

PAUL WEISS WASHINGTON, D.C.

Jodi Flowers

Joy Gallup

MOTLEY RICE MT. PLEASANT, S.C.

PAUL HASTINGS NEW YORK

Will Fogg

Sergio Galvis

CRAVATH NEW YORK

SULLIVAN & CROMWELL NEW YORK

C. Parker Folse

Merrick Garland

SUSMAN GODFREY SEATTLE

U.S. DISTRICT COURT FOR THE D.C. CIRCUIT WASHINGTON, D.C.

Gary D. Fox

James Garner

STEWART TILGHMAN MIAMI

SHER GARNER NEW ORLEANS

David Frederick

Gregory Garre

KELLOGG HUBER WASHINGTON, D.C.

LATHAM WASHINGTON, D.C.

Todd Freed

Deborah Garza

SKADDEN NEW YORK

COVINGTON & BURLING WASHINGTON, D.C.

Agnieszka Fryszman

Steven Gavin

COHEN MILSTEIN WASHINGTON, D.C.

WINSTON & STRAWN CHICAGO

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family. I inherited a love of cooking from her. I think I was 17 and out of the house before I ate a noodle that wasn’t homemade. My parents insisted I play the violin in 5th grade. I hated it and I was horrible and, accordingly, the orchestra director asked me to quit after a half year. The next year, I decided to try the trumpet, and I’ve had a love affair with the trumpet ever since. LD: How else did you pursue your interest in music in and after college? ML: At that time the largest music publisher in the world was based in Winona, where I went to college, the Hal Leonard Company. They had the contract to publish charts for Count Basie and Woody Herman. Basie, Herman and other great big bands came through Winona frequently giving us the opportunity to jam occasionally with some great musicians. I still love jazz. I have also been hooked on the Minnesota Orchestra since my dad took me to hear them when I was about 12. Currently, I’m chair of the Finance Committee for the Orchestra and Treasurer of the Minnesota Orchestral Association. Very rewarding. It is a world class orchestra. LD: Let’s talk a little about your career as a trial lawyer and how that came about. What attracted you to trial work? ML: The story, the persuasion, and the verbal combat. My father was a great storyteller. Effective trial advocacy begins and ends with telling a compelling story that reaches people of different backgrounds, attitudes, points of view, and leads them to be advocates for your position when they go into jury deliberation. I have found that telling a powerful story releases a great passion in me. As a result, being a trial lawyer seems like the most natural thing in the world. LD: Do you remember your first trial? ML: My first solo trial was a personal injury case in St. Paul, in state court my second year out of law school. I defended a woman who was an engineer for the Minnesota Pollution Control Agency. The case involved an incident that happened during a band trip while my client was still in high school. She and the plaintiff, another young woman, were together in their room when they heard a knock at the door. My client opened the door and one of the band members threw a wastebasket full of brackish pool water in her face. She fell back on the bed, hit-

ting the plaintiff, who in turn fell and struck her head. We believed the plaintiff was greatly exaggerating her injuries. After a 3-day trial, we won a well-deserved defense verdict. LD: What outside of the firm has taught you about advocacy? ML: Gerry Spence’s “Gunning for Justice” was an eye opener. He was relentless and unapologetic in championing his clients. He always told a powerful story in the courtroom. Life itself is a great teacher. I grew up in an environment of respect for self and for others. That translates to courtroom advocacy. You must let the jury know that you respect their collective wisdom and you trust putting your client’s cause in their hands. Teddy Roosevelt said the credit belongs to the man in the arena stained with sweat. That’s so true about trial lawyers. We don’t get to choose what cases go to trial, what rulings judges make about how evidence is presented. What we do choose to do is put it all out there as trial lawyers. Sometimes it can leave some scar tissue. It makes you that much stronger the next time. LD: Of your numerous significant verdicts and settlements, can you tell me about three of your favorite and why? ML: There was the Unocal trial in 1997, which was closely watched by the oil industry. [Robins Kaplan won a $91 million judgment after a jury verdict for Unocal in a patent infringement action regarding its patent on gasoline fuel]. Mike Ciresi and I tried it against John Keker and other wonderful lawyers on the other side. We had a great trial judge in Kim Wardlaw. The caliber of lawyering on both sides was extraordinary. The other one that will always be a favorite was a trial against Microsoft in Chicago, which I tried with my partners Munir Meghjee and Richard Martinez. Judge James Zagel presided. We represented Eolas and the University of California Regents against Microsoft [claiming its Internet Explorer improperly infringed an Eolas patent]. The expertise of all of the witnesses was extraordinary – and I’d say my finest direct examination was of Ed Felton, Professor of Computer Science at Princeton University. We did seven live experiments in the courtroom. We did everything from teaching the jury how to write computer code to building a website. I think we had

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Patricia Glaser

QUINN EMANUEL NEW YORK

GLASER WEIL LOS ANGELES

Paul Geller

Richard Godfrey

ROBBINS GELLER BOCA RATON

KIRKLAND & ELLIS CHICAGO

Mark Geragos

Donald Godwin

GERAGOS & GERAGOS LOS ANGELES

GODWIN PC DALLAS

Glenn Gerstell

Jay Goffman

NATIONAL SECURITY AGENCY WASHINGTON, D.C.

SKADDEN NEW YORK

Robin Gibbs

Louis Goldberg

GIBBS & BRUNS HOUSTON

DAVIS POLK NEW YORK

Lisa Gilford

David Goldschmidt

SKADDEN LOS ANGELES

SKADDEN NEW YORK

Ruth Ginsburg

Sandra Goldstein

U.S. SUPREME COURT WASHINGTON, D.C.

CRAVATH NEW YORK

Thomas Girardi

Tom Goldstein

GIRARDI | KEESE LOS ANGELES

GOLDSTEIN RUSSELL WASHINGTON, D.C.

Robert Giuffra

Elaine Golin

SULLIVAN & CROMWELL NEW YORK

WACHTELL LIPTON NEW YORK

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the first live Internet HD IP address in the courtroom and we created a webpage in the courtroom, and put it out on a server on the Web and downloaded the page.

of the emerging law in Minnesota and the Midwest around torts and business litigation. He was a truly marvelous trial lawyer in his age and he had a lot of disciples.

We bought computers off EBay from the era in which the work had been done and returned them to their prior art state, so we could show how the technology actually worked. We used a Smartboard to summarize Dr. Felton’s testimony. When we were done with the examination, we put the Smartboard back on a truck to Minnesota. The next day, Microsoft asked to borrow it and I told them it was somewhere north of Beloit.

I look at the lawyers I learned my litigation and trial skills from, and I see how they were tied to what they learned from Solly. And, I apply much of his approach as a result. We remain committed to making sure our young people grow as trial lawyers in the same tradition.

LD: Any other cases come to mind that highlight the importance of story to a successful case? ML: One other direct stands out in my mind, of Norm Stauffer of Honeywell, the father of directfocus technology. Doing a direct exam of him was like driving a Ferrari in the courtroom. The case was Honeywell v. JVC over autofocus in video cameras. My partner Matt Woods and I tried it in St. Paul, and got a jury verdict of $30,041,191, which was down to the penny what we asked. Stauffer’s story was classic. One of failure after failure. He did a demonstration with a Lucite block filled with water he had built. When he was able to show the jury how autofocus worked—at the moment the object came into focus—he looked at the jury with a sparkle in his eye and said “See! It’s like magic!” As trials go, it was pretty easy after that. LD: How do you manage running the firm and your trial work? ML: It’s been rewarding to have this dual career as both a trial lawyer and a business leader. I am fortunate to practice with partners whose own great skill and success allows me to do both. The people I practice law with, especially of my generation, are so highly focused on building this organization for the future and continuing all of the great traditions of this firm. It is an organization committed to the notion of doing good while doing well. LD: How does the Robins Kaplan of today resemble the firm you joined? ML: I reflect on that often. The firm that I joined was full of high-energy, high-stakes, very sophisticated, excellent trial lawyers who were capable across a broad range of types of cases and issues. And it is the same today. If you go back to before I joined in 1984, you had Solly Robins, who created much

And then there’s the spirit of our people. People ask, “What’s it like herding cats?” I don’t herd cats, I herd lions. Every single one of our lawyers wants to eat first, eat the most, and take a swipe once in awhile at the lion next to them. That’s what it was like when I joined, too. We are unrelenting competitors for our clients and their causes. When you have Robins Kaplan on the other side, you know we are going to do everything we can to press our cause forward, and you’re going to get scratched up a bit. LD: It’s remarkable how the firm has elevated its national reputation for litigation while maintaining a core group of strong values – especially in the current law firm environment. ML: As I look back, we have maintained the core practices of the firm that were here when I joined in as pillars in organization. The fact we represent everyone from individuals all the way to some of America’s largest corporate institutions brings a unique perspective to our lawyers. Apart from that, it’s tremendously rewarding to be able to participate at all levels of our society and economic structure; it brings a unique richness to the practice of law in our firm. As we represent all segments of society, our partners’ meetings are naturally an eclectic mix of business, patent, insurance litigation and the like. But it is the stories and struggles of injured individuals for whom we have secured justice that remind us of what is important in life and refreshes our humanity. The culture of the firm allows one to indulge yourself in so many different aspects of trial and litigation law that it’s truly fascinating and challenging. I feel like as a lawyer I’ve had the opportunity to remake myself many times over. It goes all the way back to that kid who couldn’t decide whether to be a fireman or a scientist. As a trial lawyer I get to do it all, see the world and the way it works through representation of the clients we serve and the journey we take together.

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Lisa S. Tsai and William “Bill” T. Reid IV REID COLLINS (AUSTIN)

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WILLIAM “BILL” T. REID IV AND LISA S. TSAI IT’S TOUGH TO FIND A NEWLY-FORMED

plaintiff’s firm that’s achieved greater success in the last decade than Austin-based Reid Collins & Tsai. Founded in 2009, the firm soared past $1B in verdictsand-settlements in its first few years, and has since tallied that much in 2015 alone. Among its victories is a $287.5M trial court judgment against Credit Suisse for defrauding investors in the Lake Las Vegas development. And while fraud and Ponzi schemes may draw much of the firm’s attention, they also devote substantial resources to professional malpractice disputes, bankruptcy trustee claims, cross-border litigation, and qui tam actions. But what really sets them apart? They’re totally badass. And we think they represent the future of the plaintiff’s bar. That’s the inescapable conclusion after spending time with the firm’s three founders: Bill Reid, Jason Collins, and Lisa Tsai. After spending years at larger institutions, this edgy, young group decided to build a trial firm that was true to the collective identity they’ve shaped over decades in other law firms, prosecution stints, and judicial clerkships: risk-taking, aggressive, and constantly on the hunt for sleeping dogs. The three founders tried their first case together in 2005, and Bill and Lisa led the trial team that won a nine-figure victory against Credit Suisse last year. Together, they’ve developed practices overlooked by other firms, and created a feet-first style of case preparation that should be imitated everywhere. When they are considering a case, they work it up long before it’s filed and present it to the defendant with a ”pay now or suffer later” approach. If that sounds mercenary, they’re not. They just embody a new style of law practice that is less old-boy and more results oriented – a true meritocracy. And no surprise, their clients love them, and their results speak for themselves. Lawdragon: Can you describe how you came to found your firm in 2009? Bill Reid: We all worked at a boutique firm before we formed Reid Collins & Tsai. I personally recruited Lisa and Jason to join our old firm. I recruited Jason out of University of Texas Law School. Lisa also graduated from UT Law, and spent some time at Latham

PHOTO BY: JUSTIN CLEMONS

BY KATRINA DEWEY

& Watkins in Los Angeles before she decided to return to Austin. There came a point in time where we operated as a firm within a firm at our old shop, and so eventually we decided that we’d rather be in control of our own destiny. Lisa Tsai: I like to say that we all grew up together in our law practice. I was just a baby lawyer when I decided to return to Austin, and little did I know that one decision would so dramatically change the course of my legal career. When I joined up with Bill and switched to plaintiff’s work, I felt like I had come home. Plaintiff’s work just fits me and gets me up in the morning - maybe that is why I do not need coffee and Bill has been my mentor and good friend every step of the way. Now a dozen years later, I get to live in a city I love and practice sophisticated and cutting-edge law with partners whom I deeply respect and admire on a national stage. Perhaps the best part is that we are all good friends, and we get to enjoy this law practice and our successes together. LD: What were your motivations in starting your own firm after having careers with other practices? WTR: Early in my career I worked at Hughes & Luce, a midsize firm, where I got a great deal of experience, but I wanted to be the lead lawyer and get real trial experience. So, in 1997, I quit and became an Assistant U.S. Attorney at the age of 29 and moved to Del Rio, Texas. After that, I knew I wanted to be a plaintiff’s lawyer and sprung at the chance to work at a boutique firm that had been formed by Hughes & Luce lawyers and former colleagues - mostly because they were willing to let me work in Austin, where I wanted to live and do plaintiff’s work. LT: Often times, people ask me why I was willing to leave the comfort and prestige of Big Law to join the ranks of a small plaintiff’s boutique. Although I really enjoyed and valued my time at Latham, as well as the summers I spent at other big defense shops, I think I always knew my highest and best use was elsewhere. When I began practicing with Bill and Jason, I found myself as a trial lawyer and never looked back. A few years later, it was a no-brainer to start a law firm together. I have no doubt in my mind that this firm and this practice were meant for me. LD: Can you discuss some of the early challenges you faced in going out on your own?

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David Gordon

Nicholas Groombridge

LATHAM NEW YORK

PAUL WEISS NEW YORK

Jamie Gorelick

Stuart Grossman

WILMERHALE WASHINGTON, D.C.

GROSSMAN ROTH MIAMI

Ilene Knable Gotts

Benjamin Gruenstein

WACHTELL LIPTON NEW YORK

CRAVATH NEW YORK

Stuart Grant

Dan Grunfeld

GRANT & EISENHOFER WILMINGTON

MORGAN LEWIS LOS ANGELES

Nicholas Gravante

Nina Gussack

BOIES SCHILLER NEW YORK

PEPPER HAMILTON PHILADELPHIA

Salvatore Graziano

Lucas Guttentag

BERNSTEIN LITOWITZ NEW YORK

U.S. CITIZENSHIP AND IMMIGRATION SERVICES WASHINGTON, D.C.

Karen Green

Melinda Haag

WILMERHALE BOSTON

ORRICK SAN DIEGO

Mark Greene

Richard Hall

CRAVATH NEW YORK

CRAVATH NEW YORK

Dicky Grigg

Doug Hallward-Driemeier

SPIVEY & GRIGG AUSTIN

ROPES & GRAY WASHINGTON, D.C.

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WTR: We did not plan on opening our own firm, but over time our Austin-based team became selfsustaining. We were the most profitable group at our old firm and eventually it just made sense to go out on our own, rather than to remain a firm within a firm. LT: Like anybody starting a new venture, we had no idea whether we would succeed or fall on our face. To say that our first office was a rat hole is generous. We used bankers’ boxes and a wooden plank to set up a conference table, and our attorneys had to share these tiny offices – where we literally could hear rats overhead. And for me personally, the timing was less than ideal – my first child was just six-months old, and I was still figuring out how to balance motherhood and work, much less run my own law firm. But somehow, the heavens parted, our clients took a leap of faith, brilliant associates joined us, and it has been an amazing ride ever since. LD: What are the risks and rewards in building a plaintiff-side contingency business? What was the first “a-ha” moment when you knew you had made a great decision? WTR: When we formed our firm, we had a totally contingent-based practice. We had no idea if any of our clients would follow us to a start-up law firm based in Austin, which is not a logical base for the cases that we do. Although we started with nine lawyers, we were able to get many of our clients to follow us to the new firm. We soon grew to 15 lawyers and got our first contingency pop in April 2010 and another in October 2010. We were worried about the change in platform, but we realized that it was our relationships not our platform that mattered most to clients. By October 2010, we kind of knew we were off to the races. LT: I think one of the common traits we all share is that we enjoy taking calculated risks alongside our clients. Not only does it make good economic sense, but it also just makes it more fun to practice law. We are literally invested in our cases, and everybody at our law firm knows that we only succeed when our clients succeed. And unlike other law firms, we do not just bonus people at the end of the year. When our firm makes money, everybody makes money, from the equity partners to the staff. This structure not only aligns our economic interests with our clients, but it creates a culture of teamwork across our entire firm. In fact, if you walk down our hallways on any given day, you will routinely hear our attorneys brainstorming and white boarding the most complicated issues in each

other’s cases - which we think results in better work product for our clients. LD: At this point, how would you describe the mix of cases that the firm is handling? WTR: We have all plaintiff-side commercial cases. We have a national calling card for third-party claims arising out of insolvency. From that practice, we have developed a national reputation for high stakes, commercial legal malpractice claims. Virtually all of our cases are on some form of alternative fee. We prefer mixed-fee cases, with a blend of fixed payments and a contingent fee. Yet still, well over 50 percent of our practice remains purely contingent-fee cases. LT: We bring cases that expose financial fraud and corporate malfeasance. At any given time, we have a large portfolio of cases arising from insolvency situations - for example, where we represent a bankruptcy trustee or offshore liquidator who has asked us to investigate and prosecute claims against third parties who caused the harm. These cases often involve fraud, breaches of fiduciary duty, and professional malpractice. As a result, we routinely prosecute claims against directors and officers, law firms, banks, and auditors. Outside of the bankruptcy context, we similarly represent fund managers, investors, companies, and individuals who have suffered losses as a result of fraud or negligence. And in recent years, we have developed a practice representing whistleblowers in qui tam lawsuits. LD: Bill, can you talk a bit about your Cayman Islands practice, how you developed it and about its success? WTR: I handled a case called InverWorld, which was a $325-million Ponzi scheme. My primary job over a period of years was to oversee the accounting malpractice claims. The clients were a tandem of a U.S. Bankruptcy Trustee and a Cayman Liquidator. I even had joint hearings with the U.S. Bankruptcy Judge and the Cayman Judge and two sets of lawyers on the phone, which was pretty cool. Over the years, I got to know the Cayman insolvency practitioners very well, and we have had a lot of success on their behalf. Our representation of offshore liquidators dovetails nicely with our work for bankruptcy trustees because so many of the underlying issues are the same. Of course, both onshore and offshore insolvency clients prefer alternative-fee lawyers because they have limited means to pay hourly fee lawyers, and they usually need conflict-free counsel that can take on institutional defendants. That makes our law firm a natural solution.

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500 LD: How do you sell the firm to potential clients used to hiring larger firms for their biggest cases?

or their low offers result in them - not us - choosing that suit be filed.

WTR: Our marketing message today is much easier than in years past. This is so primarily because we have been so successful over the past seven years. Most notably, our $287.5 million judgment against Credit Suisse last year was a very large and very public win. It certainly caused people to take notice of this little Austin-based firm. It’s obvious, but once you get a $100M dollar case and you succeed, then you can get more. Once you get a billion-dollar case and you succeed, then you can get more.

But, the answer to your question is that we get far ahead of our opponents before we ever engage with them and long before suit is filed and then we run our teams as efficiently as necessary but with the goal of getting the case trial ready as soon as possible. I think it helps that we are good at focusing on what is important and avoiding the time waste that many defense firms seem to engage in on things like written discovery and other largely useless tasks.

So now, we market ourselves as the team that will handle your case, that works well together, is tenacious, resourceful, smart, and with successful trial experience and a track record of great results. Being a former AUSA never hurts in selling trial skills either. LT: In many ways, our model sells itself. When clients call us, they nearly always have a problem that a big law firm cannot handle. We can bring claims against large banks, professionals, and corporations, but the big law firms are beholden to them. And we bring those claims on a mixed-fee or contingent-fee basis, unlike the large hourly defense shops. Frankly, hiring a large law firm to bring a plaintiff’s lawsuit is like cutting a steak with a butter knife – it does not work. LD: Given the size of some of your opponents, how do you prevent your case and trial teams from being out-resourced during long litigations? WTR: In short, our approach to cases is very frontend loaded. We almost always work up our cases and present a draft lawsuit to our opponent with the invitation to have an upfront business discussion. In fact, we usually tier our contingency fees so that we take a lower percentage on a pre-suit settlement and a higher percentage on a post-suit settlement. We get people to agree to the concept of “Let’s agree to some form of standstill agreement, and let’s give you everything we’ve got to say, and let’s hear everything you’ve got to say. If a settlement agreement at that point is appropriate, we’d love to have one. If not, tell us and then you will in effect choose to be sued.” In most of our big cases, we enlist experts pre-suit and usually can take advantage of the pre-suit discovery available to a bankruptcy trustee or offshore liquidator in our insolvency practice. Long story short, we do a ton of upfront work and put our adversary to a decision: where their unwillingness to negotiate

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LT: We are used to taking on Goliath and winning. Our 28-lawyer firm daily goes toe-to-toe with the largest and most elite law firms in the country – as we just did in the Credit Suisse case. In our experience, being outmanned is not the same as being outgunned. While the big law firms may have more bodies, we have a cohesive team of talented lawyers who are personally invested in the outcome of our cases and focused on trying our cases. Our lawyers work as a team in every respect, we spend months preparing our cases before we ever file them, and we are typically miles ahead of our adversaries by the time we reach the starting line. LD: The successful case against Credit Suisse Group drew a lot of attention. While you won liability before a jury, the large damages were decided by the judge. How did it happen that the case was split into a jury trial and then a bench trial, which benefitted your clients tremendously? WTR: It is conventional wisdom that a jury is good for plaintiffs and a bench trial good for defendants. I would agree that generally a judge can be more difficult to try a case to on liability and can apply the various evidentiary standards more stringently, but once you establish liability to a judge, I feel he or she can more faithfully apply the law of damages without the split-the-baby type of decision that juries often make. With that said, Credit Suisse chose to invoke a jury waiver in our case. But, New York law is clear that a claim for fraudulent inducement is immune from a jury waiver on the premise that it would be unfair to allow a defendant to invoke the benefits of an agreement if the plaintiff was induced by fraud to enter into the agreement. Thus, under New York law, fraudulent inducement is tried to a jury. We knew going in that asking a judge to give us $300 million in damages was a tall order. But we thought – rightly – that if we could persuade a jury


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that Credit Suisse committed fraud by clear and convincing evidence that our breach of contract claims - which carried a preponderance of the evidence standard - would hopefully be well received by the court. And, we thought that if we got that far, the judge would give us all of the damages that we were entitled to on our non-jury claims. Our plan played out as we imagined. We won the jury trial by an 11-1 verdict. In fact, the foreperson ironically was the only vote against us. Although we proved fraud by clear and convincing evidence, the jury only awarded us $40 million. Of course, our best liability and damage theories were only for the judge to decide. Although we did seek a much higher number in front of the jury, neither side had presented any evidence to support a $40 million award, and it was clearly the product of some backroom horse trading by the jury. After the three-week jury trial, we came back six months later and tried the case to the bench. The judge awarded us liability on all three bases that we sought and then faithfully applied the law of damages and awarded us a $287.5 million judgment. LD: How would each of you describe your own styles as trial lawyers? Do you see yourself as similar or different types of lawyers in the courtroom? WTR: We are a great team. I bring over 20 years of trial experience and a big-picture view. Lisa is very detail oriented, and we complement each other well. But, what we have in common is that we both can be ourselves in front of a jury and that is a trait that all good trial lawyers have. LT: Whether I am before a jury or a judge, I try to be authentic and tell them a simple story. My goal is to explain how my clients were harmed and why they are entitled to recover, and to show them why I personally have spent years fighting for my clients. No matter how complicated the facts, I believe every case comes down to what is fair, what is just, what is right, and what is wrong. These are universal human concepts that everyone understands, and that is what I try to focus on in every case. LD: What are some of your formative experiences as trial lawyers? WTR: My first law job was as a law clerk to Reynaldo G. Garza on the Fifth Circuit. What he impressed upon me more than anything else during my clerkship was that equities really do influence the result. In fact, it was my experience as a law clerk that

taught me to focus on the equities and weave them into my themes. I have a ton of trial stories, especially from doing 25 criminal trials in three years as an AUSA. We had one case before Judge William Wayne Justice, to whom I tried a number of cases, where a border patrol caught two dudes in the middle of the night with 450 pounds of drugs. None of the agents’ stories matched. I told my boss I couldn’t prosecute it, and he said “It’s been indicted. It’s your job to go prosecute it.” So we did. The public defender in his opening statement said, “The moment they arrested my client, he told them they had the wrong guy.” And I asked to approach the bench. I’m a big approacher. And this was before a judge who was a personal hero of mine. And I objected by noting that you can seek to admit the hearsay of a party opponent, but you can’t put your own hearsay in and he’s talking about what his client’s going to say. The judge told me to sit down and overruled my objection. A few days later, my agent witness is testifying, and the public defender began his cross examination with: “Isn’t it true my client told you the moment he was arrested ….,” and I say, “Judge ….” and ask to approach. But he told me to just state my objection where I stood. “And I say, ‘Are you sure, Judge?’” So I’m speaking my objection, which I was told to do, and I set forth a valid and succinct objection to the admission of hearsay and then in the heat of battle said, “If he wants to put his client on the stand, he’s free to do so.” At that moment, time stopped. The judge says, “Bailiff, dismiss the jury.” No one in the courtroom would look at me. My case agent wouldn’t even look at me. And I knew I was in bad trouble. The judge says, “Reid, why did you find it necessary to invoke the client’s right not to testify in front of this courtroom?” And I said, “Judge, I asked to approach.” And he said that was true, and let me know in no uncertain terms that if I managed to win the case he would entertain a Rule 29 post-verdict motion to throw out the conviction. I won a 27-minute guilty verdict, and the judge granted a new trial. We soon thereafter settled for a compromise plea bargain. LT: Three weeks after I moved to Austin in 2004, I had my first hearing in federal court – and not just my first hearing, but my first opportunity to take a witness live on the stand in a Daubert hearing. I’ll never forget

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Jeffrey Hammes

Steve Herman

KIRKLAND & ELLIS CHICAGO

HERMAN HERMAN NEW ORLEANS

Kamala Harris

Lynne Hermle

U.S. SENATE WASHINGTON, D.C.

ORRICK MENLO PARK

Geoffrey Harrison

Marielena Hincapie

SUSMAN GODFREY HOUSTON

NATIONAL IMMIGRATION LAW CENTER LOS ANGELES

Natasha Harrison

Jennifer Hobbs

BOIES SCHILLER NEW YORK

SIMPSON THACHER NEW YORK

Janice Hartman

Shawn Chapman Holley

K&L GATES PITTSBURGH

KINSELLA WEITZMAN LOS ANGELES

Michael Hausfeld

Heidi Hubbard

HAUSFELD WASHINGTON, D.C.

WILLIAMS & CONNOLLY WASHINGTON, D.C.

Kris Heinzelman

James Hurst

CRAVATH NEW YORK

KIRKLAND & ELLIS CHICAGO

Edward Herlihy

Sherrilyn Ifill

WACHTELL LIPTON NEW YORK

NAACP-LDEF NEW YORK

Russ Herman

Bill Isaacson

HERMAN HERMAN NEW ORLEANS

BOIES SCHILLER WASHINGTON, D.C.

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it. He was a banking expert and incredibly savvy. Bill had a lot of confidence in me and was going to give me - the baby lawyer, a three-year lawyer - the opportunity to take a witness live on the stand at this hearing. What I’ll never forget is he turned to me right before I go on, and says, “Don’t fuck it up.” That’s become a running joke with us, and we still say it to each other. But I knew then the trust Bill put in me, and that represents how we run our firm and our cases. We give every lawyer on a case a meaningful role and trust them to do a great job. LD: As your firm’s practice is national, why did you choose Austin as a home base? WTR: Austin is a great place to live and work. Virtually everyone that visits agrees – the trick is to find a good legal job here. From the first time I set foot in Austin in 1992 working for Judge Garza I knew that I wanted to live here. In short, we can recruit amazing young lawyers even though we have virtually no local practice – so it works. Additionally, the overhead necessary to maintain our firm in Austin is a fraction of what it would be in places like New York. LT: Even though I went to law school in Austin, I never planned to practice law here. I moved back to Austin after practicing law in Los Angeles for purely personal reasons - because my now-husband had started graduate school out here. Looking back, it was one of the best decisions I ever made in my life. Now years later, I get to live and raise kids in one of the best cities in the world while prosecuting complex and interesting cases alongside my good friends and partners. LD: What do you look for in young trial lawyers? WTR: We look for entrepreneurial, smart, self starters who are not fearful of independence and have the written and verbal skills we need. But everyone needs to satisfy the test of being someone we’d all want to spend our free time with. We are like a family, and we really focus on the team chemistry. LT: When I recruit young lawyers, I am looking for a certain je ne sais quoi. As a baseline, we want candidates with exceptional academic records, but that is only a starting point. To do this line of work successfully and for the long haul, you need to possess a certain something that drives you to fight against all odds, that wakes you up at night when you have an epiphany about your case, and that gets you going each morning because you know you need to

push the ball forward for your client. That certain something is intangible and hard to describe, but I definitely know it when I see it. LD: Does each of you have an extra-curricular or public interest activity that you want to talk about? WTR: My kids are in an International Baccalaureate school where they are taught in three languages and I serve on the school board. I am proud of the fact that our family travels abroad every summer for extended periods of time where we all practice our Spanish and learn about other cultures. LT: I grew up in a family that was very active in community service, and I have followed in those footsteps my entire life. I sometimes joke that I have been president of every organization I have ever joined, although I think that may actually be true. As a lawyer, in particular, I have served for many years on the board of the Texas Fair Defense Project, which stands up for the constitutional rights of indigent criminal defendants. I think how we treat poor people accused of crimes is a direct reflection of the fairness of our entire criminal justice system. For those who are well off, we sometimes take our liberties and freedoms for granted, but I can tell you from experience that we have a lot of work to do to make sure our criminal justice system is fair for every one of us, rich or poor. LD: If you had to do it all over again, would you still be a lawyer? And why? WTR: No question. This is what I was meant to do. I love the mental chess game of the practice, but more importantly I like taking on large institutions and holding them accountable. The Credit Suisse case was very rewarding in that respect. LT: I love what I do. I find it very motivating and rewarding to take on big business and expose financial fraud and wrongdoing. But I have to admit my original love was journalism, and I am sure I would be reporting on the nightly news in a parallel life. That said, I think it is no coincidence that my two professional passions are trial work and journalism because they really are about the same thing: finding out the truth and telling people about it. LD: What do you hope we write about the firm in 10 years? WTR: I hope you are writing about our next generation of amazing lawyers. LT: I could not say it any better.

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GAYLE KLEIN WHEN ONE OF THE NATION’S TOP TRIAL

lawyers joins one of the most successful trial law firms, the relationship should thrive. And that is the case with Gayle Klein, a former Weil partner who joined McKool Smith’s burgeoning New York office in 2008. The University of Texas School of Law graduate wanted not only a trial firm but also one that would allow her to be on the other side of the courtroom from financial institutions. In her largely New York-based practice, Klein has done more than flourish as co-chair of McKool Smith’s financial products litigation team. Lawdragon: Did you know in law school that you wanted to be a courtroom lawyer? Gayle Klein: I enjoyed participating in moot court in law school, but my passion for the courtroom took hold when I started taking depositions and attending hearings. During the first three years of my practice, I was required to take at least three depositions a week on behalf of a defendant in asbestos cases. That meant waiting several hours to ask maybe 20 minutes of questions about a particular product. Although some colleagues did not consider that a cherry assignment, I did. Through trial and error, I learned how to develop effective examination outlines, really listen to the witness, and be nimble with questions. I also learned that you gain great insight from any deposition or courtroom opportunity, no matter the subject matter or size. So I volunteered every chance I got – and sometimes practically begged – to speak in court or examine witnesses. And, of course, once you demonstrate an aptitude in the courtroom, the opportunities present themselves. LD: Why did you decide to join McKool Smith and what has kept you at the firm? GK: When I decided to move to New York, I spent a year interviewing to find a firm that offered the right fit for me and my practice. I wanted to work with skilled trial lawyers in an entrepreneurial firm that viewed New York as a strategic growth area. Additionally, I needed to be able to represent clients adverse to banks and other financial institutions. McKool Smith fit all of those criteria. The firm has demonstrated unwavering support for the growth of my practice since I joined in 2008. What started as a single case against Wachovia has turned into a thriving national practice with more than 40 lawyers

PHOTO BY: DAVE CROSS

BY JOHN RYAN from coast to coast. We represent several hedge funds, private equity firms, trustees and other sophisticated companies against many of the world’s largest financial institutions. The people at McKool Smith and the culture of the firm have made it a great home. We pride ourselves on being a trial firm first. I’ve met with prospective clients who have asked why they should hire a trial firm when they aren’t looking for their case to go to trial. The answer is simple. Trial lawyers are not only effective at trying cases, we are also effective at creating leverage so that the case can resolve without the need for a trial. McKool Smith has about 185 lawyers, which allows my clients to benefit from a vast amount of expertise. We’ve seen the inside of every courtroom and handled every type of dispute that you can imagine. The level of rigor we bring to our practice and the high level of client service we provide is something that I am very proud of. LD: I know that you co-chair the firm’s financial products litigation team and handle a wide range of other cases. What is your caseload like these days? GK: My docket right now leans heavily toward securities and investment-related litigation. I’m currently working on eight very active residential mortgagebacked securities (RMBS) cases where we are seeking to enforce contractual rights related to the sale of billions of dollars of defective mortgage loans. One of the cases against Citigroup is set for trial in February 2017. So, my foreseeable future will revolve around preparing for trial. Beyond the RMBS cases, I have been working on market fraud matters relating to complex financial products and other interesting breach of contract cases. LD: When looking back over your career, is there a case or client that stands out as particularly memorable – either for the result or a lesson learned? GK: One of the things I like most about being a trial lawyer is that you have the opportunity to learn about many different industries and subject matters, so it keeps things interesting. Mike McKool and I tried a case last year for Alcoa Power Generating that stands out as memorable because of the subject matter. Alcoa and its predecessors spent 100 years buying parcels of riverbed and constructing four hydroelectric dams on the Yadkin River in North Carolina. The state disputed Alcoa’s ownership of

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Valerie Ford Jacob

Brad Karp

FRESHFIELDS NEW YORK

PAUL WEISS NEW YORK

Jameel Jaffer

David Karp

ACLU NEW YORK

WACHTELL LIPTON NEW YORK

Christy Jones

Jay Kasner

BUTLER SNOW JACKSON, MISS.

SKADDEN NEW YORK

Patrick Jones

Neal Katyal

JONES KELLEHER BOSTON

HOGAN LOVELLS WASHINGTON, D.C.

Nora Jordan

David Katz

DAVIS POLK NEW YORK

WACHTELL LIPTON NEW YORK

Elena Kagan

Don Keenan

U.S. SUPREME COURT WASHINGTON, D.C.

THE KEENAN LAW FIRM ATLANTA

Stacy Kanter

Skip Keesal

SKADDEN NEW YORK

KEESAL YOUNG LONG BEACH, CALIF.

Roberta Kaplan

Jennifer Keller

PAUL WEISS NEW YORK

BAKER DONELSON JOHNSON CITY, TENN.

David Kappos

Jennifer Keller

CRAVATH NEW YORK

KELLER ANDERLE IRVINE, CALIF.

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the land and dams, and the central issue to the dispute was whether this 45-mile stretch of river was navigable at the time of North Carolina’s statehood in 1789. If the river was navigable at statehood, it was a highway of commerce and not susceptible to private ownership. The challenging aspect of the case was to prove the physical conditions that existed without any fact witnesses. We worked with scientists to prove the geography of the river and the likely erosion of the riverbed over time. We worked with a marine archeologist to prove what kind of boats existed and whether they could traverse that geography and river flow. And we worked with a historian to understand whether anyone was actually traveling on the river. The texts he relied upon included diaries from the Revolutionary War and from a group of settlers who lived near the Yadkin River and documented their daily lives. Every part of that case was fascinating and a lesson in history and science, which made the client’s courtroom win particularly satisfying. LD: How would you describe your style as a lawyer? Has it changed over the years? GK: I think my clients and colleagues would describe my style as client focused and detail oriented. Everything that I do on a case is related to the client’s end goal. The first questions I always ask clients include what are their business goals, how the current issue impacts their business, and what constitutes a “win.” Our clients enjoy working with us because our top priority is the success of their businesses and we work hard to minimize litigation distraction. We also implement targeted strategies and avoid fighting just for the sake of the fight. Over the years, I have noticed that focusing on the factual detail is powerful and creates case insights. For example, as we were preparing for the Alcoa trial, we plotted precisely where along the riverbed certain towns, bridges, and other physical landmarks had been located. Pinpointing these locations – which the other side did not do – created a powerful image of how people lived and worked along the river over 100 years ago. LD: Can you name a lawyer you have come up against in litigation whom you admire, and why? GK: I greatly admire the women practicing in securities law these days. On both sides of a case, we are strong, insightful, and experienced in leading large and complex matters. Kathy Patrick of Gibbs & Bruns has done an amazing job seeking redress on

behalf of investors against major financial institutions. There were many parties with differing interests and she managed to wrangle them all and successfully resolve billions of dollars in claims. And I have been litigating against Susanna Buergel of Paul Weiss, who represents Citigroup, for more than three years now. I appreciate that we can steadfastly disagree over the facts and the law, and yet still work together in a collegial manner to move the cases forward. LD: You have lived in New York, Texas and California over the years. Was there a reason you have moved around? GK: I grew up in Corpus Christi, Texas, and it was my dream to live in Dallas, Texas. I moved when professional and personal opportunities presented themselves. Although I am profoundly goal oriented, I also believe that you should not let those goals get in the way of seizing interesting opportunities when they present themselves. I think that is one reason why McKool Smith is the right firm for me. Although the firm had strategic growth initiatives, our growth in many practice areas, such as our recent addition of an insurance recovery practice, was largely based upon being entrepreneurial and open minded. LD: Legal industry reports note an increase in law firm competition and client concerns about reducing their overall legal spend. How have these developments impacted your practice? GK: Companies have been growing their in-house capabilities, and as a result, there is a decrease in demand and a resulting increase in law firm competition, especially for the bet-the-company cases that are in our wheelhouse. However, these developments have not impacted the way that I practice law. At the end of every engagement, our clients should feel that they have received exceptional value for the money they have spent on our services and the advice they have received in return. We have always taken measures to control costs, such as staffing cases leanly and using outside vendors where appropriate. Additionally, McKool Smith is a market leader in implementing all manner of alternate fee arrangements; we have been using them to achieve great value for our clients for more than 20 years. For example, in addition to straight contingent-fee work, I have defended class actions on a flat fee and been paid success fees for obtaining an early defense victory. We have also been working with litigation funding firms for years. Read the full Q&A at www.lawdragon.com/lawyer-limelight/gayle-klein.

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Todd Smith POWER ROGERS (CHICAGO)

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TODD SMITH

BY JOHN RYAN

WE COULD JUST AS EASILY BE READING

representing individuals and again on the plaintiff’s side in civil cases representing individuals – people really needed your help. On the criminal side, folks that couldn’t afford a lawyer were provided a lawyer. On the civil side, people who were deeply in trouble with having suffered perhaps even lifetime devastating injuries are able to get a lawyer, and not have to go out of pocket, because it’s, of course, contingent on your success.

Smith, a proud native of Evanston, Ill., received his law degree from Loyola University Chicago School of Law, which awarded him its “Medal of Excellence” – the school’s highest honor – in 2005. After years being mentored by the legendary Philip Corboy, he moved to Power Rogers, where he has achieved many record-setting verdicts. Among those most meaningful to him are the families he’s successfully represented after the wrongful death of a child. Smith also recently secured an $8.1M settlement for the family of a 52-year-old man killed in a helicopter crash.

LD: Last year, you won the Illinois Bar’s Distinguished Award for Excellence, which followed other highprofile awards. What have those meant to you and what do you attribute the success to?

about Todd Smith as one of the nation’s leading criminal defense lawyers, which is how the Chicagobased Power Rogers & Smith founding partner got his start. But there are countless plaintiffs across personal injury, wrongful death, aviation, product liability and medical malpractice cases who are grateful the award-studded attorney made the switch to the civil side back in 1980.

Lawdragon: Please talk a bit about how you switched to a civil practice representing plaintiffs.

TS: The recognitions from the Illinois Bar, as well as from the Association of Trial Lawyers of America, now AAJ, and the award from my law school are, of course, wonderful recognitions. I never could have imagined I would have received this type of acknowledgement. The truth of the matter is that without those who have given me opportunities all along the way, I would never have been considered for these kinds of recognitions. I really do owe it to others.

Todd Smith: I was a trial lawyer for the Cook County Public Defender’s office handling felony jury trials. I also handled felony cases tried to the judge, as well as hundreds of preliminary hearings in felony cases. I was only four years in practice when I was asked to join what was then known as the Cook County Public Defender’s Murder Task Force. It was the elite group in the office. My supervisor, who remains a very good friend, was not willing to let me leave the position I was in because he wanted to have me to teach the “younger” lawyers. I became frustrated and began looking for outside trial work. In other words, outside of the office in private practice.

In terms of a few things that have been instrumental in arriving at a certain place in my career, I’d have to first say that, one, is being tossed into the fire immediately as an assistant public defender where you were standing in a courtroom right away representing people who had only you to help them. Talk about being thrown right into battle. The same was true once I reached the civil side. I was told by Phil Corboy “lawyers who want to try cases, try cases.” In other words, get out there and do it. LD: You’re an Illinois native and have spent most of your time there. Did you ever think about going elsewhere and, if not, what has kept you in Illinois?

There really weren’t any positions with criminal defense practitioners as they are often either solo or just a couple of lawyers working together. I absolutely wanted to do trial work and I got very fortunate when I heard that Philip Corboy, a legendary Chicago plaintiff’s personal injury lawyer, was looking for an associate to add to his firm. That was 1980. I was immediately handed a large number of cases and was sent out to trial within my first two weeks of being in civil trial practice.

TS: That’s an interesting question. I’m sure I’m not unique. If you enjoyed where you grew up, why not stay? What’s not to like about Evanston, Illinois? The first suburb at the edge of one of the greatest cities in the world. It has the nationally, even internationally respected, Northwestern University, there. I basically grew up on that campus where my father taught for 40 years. I guess the bottom line is I have deep ties and experiences with this community, and virtually all of them are very positive.

The part that I think was most appealing to me was that in both types of practice – on the criminal side

LD: Are there certain types of matters that are keeping you busy these days?

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Michael Kelly

Jeff Klein

WALKUP MELODIA SAN FRANCISCO

WEIL GOTSHAL NEW YORK

Stasia Kelly

Ethan Klingsberg

DLA PIPER WASHINGTON, D.C.

CLEARY GOTTLIEB NEW YORK

Erika Kelton

Edwin Kneedler

PHILLIPS & COHEN WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE WASHINGTON, D.C.

Anthony Kennedy

Alan Kornberg

U.S. SUPREME COURT WASHINGTON, D.C.

PAUL WEISS NEW YORK

Thomas Kennedy

Michael Kump

SKADDEN NEW YORK

KINSELLA WEITZMAN LOS ANGELES

Jeffrey Kessler

M. Natasha Labovitz

WINSTON & STRAWN NEW YORK

DEBEVOISE NEW YORK

Kenton King

Walter Lack

SKADDEN PALO ALTO

ENGSTROM LIPSCOMB LOS ANGELES

Adam Klein

Joel Laitman

OUTTEN & GOLDEN NEW YORK

COHEN MILSTEIN NEW YORK

Gayle Klein

David Lam

MCKOOL SMITH NEW YORK

WACHTELL LIPTON NEW YORK

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TS: I like the fact that my practice has been broad, covering a number of areas – medical malpractice; aviation cases; accounting and financial negligence/ malpractice; and in more recent years mass tort and class action cases. Keeping me busy today is my appointment as co-lead counsel for economic loss in the National Class Action/Takata Air Bag Defect litigation centered in the Southern District of Florida. LD: Can you discuss a recent case? TS: One is a wrongful death and product liability case involving a helicopter crash. A pilot of an Agusta (Italian manufacturer) helicopter working for the Air Angels organization, a medical helicopter service in the western suburbs, crashed and died just south of the DuPage County Airport. This was obviously a tragic event, but a fortunate aspect is that he was the only person on board. Not only was it a foreign manufacturer of the helicopter, but also the component part that we have long contended failed was made by a French manufacturer. It was a contest from the very beginning and it started with personal jurisdiction, with a motion brought by the French component manufacturer. The jurisdiction issue went twice to our intermediate Appellate Court and twice to our Illinois Supreme Court and then to the U.S. Supreme Court where certiorari was denied. We won that jurisdiction issue in the Illinois Supreme Court. It was the first jurisdiction decision by the Court in about 25 years. There were no eyewitnesses to the occurrence, so it’s an entirely reconstructed case with a half-a-dozen experts employed just on the liability side of our case, including a helicopter piloting expert, two reconstruction experts, a ball bearing manufacturing and design expert, and a metallurgist. LD: Interesting. What else stands out about the case? TS: Certainly as to the client the loss by his wife and children in the death of the pilot is an enormous impact. One of the things that they have long strived to do is to show that this highly qualified pilot – with over 12,000 hours as a helicopter pilot – did nothing wrong. That it was a failure of the product itself and not the failure of the pilot. That, as you might guess, is the defense in the case. I will certainly never forget the case, number one, because of the length of time involved on the jurisdiction issue alone; and two, the success on appeal twice to the Appellate Court and then to the Illinois Supreme Court. And we now finally reached the point where all of the experts are in place and we near the finish line – the trial. Shortly after the com-

mencement of trial, the long journey of this case ended in a resolution of $8.1 million. LD: How has your practice changed over the years? TS: Well, obviously I’m not doing any criminal work anymore and I did many, many jury trials in criminal felony cases, from theft on up to murder, and virtually everything in between from kidnapping and armed robbery to burglary, etc. My early civil practice was primarily automobile cases, and then I started practicing more in the product liability and medical malpractice area. The cases generally in the last many years have been the more complex type in Medical Negligence, Aviation and now Consumer Class Action and Mass Action. LD: Did you have a mentor who was particularly influential? TS: Yes – Phil Corboy on the civil side of my practice was clearly the most important mentor in my career. He was the top personal injury trial lawyer in Chicago of his generation by far. He opened the door for me – in other words gave me the opportunity; but he gave me more than that by showing me how to do it, and to do it the right way. LD: What about a case that stands out? TS: I have been very fortunate to have some cases that are particularly memorable for me. There probably isn’t a single one alone. Having said that, I have tried a lot of wrongful death cases, and particularly wrongful death cases involving children. I suppose one aspect of that that I recall is in 1990 I tried the wrongful death of a 13-year-old girl and obtained a then-record $6M verdict against Chicago Transit Authority, the bus and train company of the City of Chicago. It was hard fought on both liability and, of course, damages, but the case did set a record high for compensation in the wrongful death of a child, and it was one of the earlier cases that involved the loss of society and companionship elements alone without any economic loss. That and the fact that 10 years later I obtained an $8 million verdict for the wrongful death of an 11-yearold which set the next record high for compensation again along the same lines and elements of damage. It’s really not so much about the amounts of money itself as it is that you are able to persuade a jury to think about the importance of that child in terms of non-economic aspects of life, and the loss in both cases to those families. Read the full Q&A at www.lawdragon.com/2016/10/24/lawyer-limelight-todd-smith.

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Nicholas Gravante BOIES SCHILLER (NEW YORK)

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NICHOLAS GRAVANTE IT WAS HOT AS HELL IN FLUSHING

Meadows, Queens, in August 2014. And at the annual sports and celebrity fest known as the U.S. Open, Nicholas Gravante of Boies Schiller was in full swing, schmoozing with clients from the Warhol Foundation, talking up the Brooklyn Public Library and thinking through his upcoming closing argument in the heated $2B battle over AriZona Iced Tea.

It had been a long summer, and he would head to Marshall, Texas, for trial in the Trinity Guardrail case in five weeks. That case, too, had blockbuster potential as it involved whistleblower claims that the guardrail manufacturer had knowingly installed flawed rails throughout the country, leading to death and severe injury. He had worked tirelessly for more than two decades for a moment like this, attending every bar function; drinks and dinners five nights a week; leveraging coveted sports tickets to the Knicks, Nets, Islanders and U.S. Open; and political contacts that he stoked like his life depended on it. And then his father had a stroke. His father was the lawyer to know in Bay Ridge, Brooklyn, where Gravante grew up and still lives with his family, just a few doors down from his childhood home, and across the street from where his wife, Jackie, was raised. In that moment and the agonizing months that followed, Gravante’s very big year turned into the kind of drama that puts even a platinum book of business in perspective. Perhaps fittingly, Gravante thinks of business development as survival. From the time he graduated Columbia Law School in 1985, he has made a series of unconventional choices that gave him tremendous lawyering skills, as well as street smarts. He started out at Cravath, where he received exquisite training as a lawyer and formed relationships that have defined his career. “In the mid ‘80s, at least, Cravath got business because it was Cravath. There was a nonstop series of cases and they had the luxury of picking and choosing what they wanted to do,” he said. After four years, Gravante was itching for real trial experience. He had an offer to join Rudy Giuliani’s team as an assistant U.S. attorney for the Southern District of New York. But at the time, no trial was bigger than the expected prosecution of John Gotti and his colleague Sammy ‘the Bull’ Gravano for murder

PHOTO BY: LAURA BARISONZI

BY KATRINA DEWEY and other mayhem. Gravante decided he wanted to work for Jerry Shargel, a lawyer he had never even met, but one with a prominent reputation, who had defended Gravano and played a key role in the prior acquittals of both men. The son of a paint store owner, Shargel was a solo practitioner who made his own way to the top of the criminal defense bar. Gravante’s father had done the tax returns of Sammy Gravano, whom he knew from the neighborhood, so was called as a witness in a case against him. Because he had been so impressed with Shargel, he recommended Nick talk to him. The rest is history. Gravante sent his resume, Shargel saw he was from Cravath and Columbia, and said he was hired. Shargel had never had an attorney with Gravante’s credentials, and Gravante took the opportunity to learn how to own a courtroom, as well as how to get business. “I saw the way Jerry hustled,” says Gravante. “And I don’t model my networking after Jerry’s in the sense that Jerry hung out at the Ravenite Social Club with John Gotti and Sammy the Bull. But he needed to be seen, to have a drink with them, have lunches, go to parties. And I analogize that to the people I want to be doing business with. “ When Gravante moved a few years later to the Cravath spinoff, Duker & Barrett, he knew how to hustle, but now he had to hunt. “When your survival depends on bringing in business, you do it by necessity.” He’s watched over and over how lawyers learn to develop business when they must, not because they should. And it is necessity that helps producers withstand the prospecting – what can seem like a blur of inconsequential meetings, plane rides, questionable uses of time, and yet another cocktail. The monotony of the hustle is all forgotten when a contact hits. “You throw the seeds and maybe 5 to 10 percent of them grow, but they grow,” said Gravante. David Boies left Cravath in 1997 to found Boies Schiller and is the maestro of the jazz orchestra that is the narrative of each and every case, from hitting its first note to managing it through its unexpected and often thrilling end. Gravante joined the firm in 2000 and has won Boies’ praise. “Nick is an exceptional trial lawyer who has earned the respect of his partners and clients. His reputation and accomplishments have made him one of the Firm’s key business generators. The Firm is lucky to have him.”

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Jeffrey Lamken

Michelle Lee

MOLOLAMKEN WASHINGTON, D.C.

U.S. PATENT & TRADEMARK OFFICE WASHINGTON, D.C.

Carolyn Lamm

William Lee

WHITE & CASE WASHINGTON, D.C.

WILMERHALE BOSTON

Christopher Landau

Yoon-Young Lee

KIRKLAND & ELLIS WASHINGTON, D.C.

WILMERHALE WASHINGTON, D.C.

Steven Lane

Eduardo Leite

HERMAN HERMAN NEW ORLEANS

BAKER & MCKENZIE CHICAGO

Tom Lane

Heather Lennox

WINSTON & STRAWN NEW YORK

JONES DAY NEW YORK

Mark Lanier

Lawrence Lessig

LANIER LAW FIRM HOUSTON

HARVARD LAW SCHOOL CAMBRIDGE

Travis Laster

Sandra Leung

DELAWARE CHANCERY COURT WILMINGTON

BRISTOL-MYERS SQUIBB NEW YORK

Wendi Lazar

Andrew Levander

OUTTEN GOLDEN NEW YORK

DECHERT NEW YORK

Mark Lebovitch

Stuart Liner

BERNSTEIN LITOWITZ NEW YORK

LINER LAW LOS ANGELES

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Part of the magic of Boies Schiller is that – while Boies and Jonathan Schiller are vast rainmakers each and every year – lawyers like Gravante and D.C.-based Bill Isaacson also produce jaw-dropping amounts of business that often has little relationship to the top of the marquee. “I get my work from everyone, everywhere,” says Gravante. “I have no idea where my next cases are coming from, I just know they’re coming.” Take, for example, his relationship with Judge Eugene Nardelli, which resulted in Gravante doing an internal investigation related to the Jared Fogle scandal, among many other engagements. Gravante met Nardelli because he was vetting an applicant as a screening committee member for the 2nd Department of the Appellate Division of the New York Court. An applicant for presiding judge of that department listed Nardelli, then retired from the1st Department as a reference, and Gravante called him. The two became fast friends; Nardelli joined Boies Schiller as counsel in 2011 after 18 years as a Justice of the Appellate Division, and is well connected in New York politics. And today Nardelli and Gravante are a regular twosome at bar events, the Columbus Club and other Italian-American community dinners.

release an error when no body is in custody. The error he relied on was made by the original lawyer who provided flawed advice on the immigration consequences of the guilty plea. “Kovacs made full restitution and did not assert the statute of limitations because he wanted to accept responsibility,” said Gravante. “He paid 100 percent of what he owes, his probation is terminated early, his whole family is in the U.S., his grandkids are here, and he’s in Australia visiting relatives. He’s told if he flies back to the U.S. he will be detained. So he’s stuck out of the country for years.” Not only did Gravante convince the 2nd Circuit, he also wowed the New York Observer, which ran a banner headline declaring, “Boies Firm Sinks One from Half Court.” The combination of tireless networking, relationship maintenance and creative and connected lawyering is trademark Gravante. It does not hurt that he regularly plays tennis with Senator Kirsten Gillibrand, spends time with Andrew Cuomo, was an early fundraiser for Bill DeBlasio and is currently Board Chair of the Brooklyn Public Library. Ultra-producers are driven by many motivations, which largely come down to varieties of competition or compensation. To Gravante, it’s about pride.

Gravante’s rainmaking is also successful because he is a friend, who makes time for associates and fellow partners, stays in touch with people, making sure they have a cocktail or go to a game each year. One former associate remembered Gravante’s criminal law background and reached out for help in the case of Stephen Kovacs, an Australian national who became a U.S. resident.

“Within our own firm, though I’m not in competition with my own partners, there is pride. We all want to be the partner that brings in the most business in a particular year,“ he says. “And we’re a firm, we’re partners. And not everyone has the inclination or the social skills. But I love doing it. I want to do it.”

Turns out, after Kovacs’ Manhattan store was robbed in 1991, he agreed with the insurance adjustor to commit fraud. When charges were filed more than five years later, Kovacs told his lawyer to just cut a deal so he could pay restitution and put his mistake behind him. Most important, he said, was that whatever charges he pled to could not have immigration repercussions because he traveled frequently to Australia and could not risk being kept out of the U.S., where his family lived.

Gravante ended up winning a $1B payout for his client, John Ferolito, in AriZona. In Marshall in October 2014, he sat at the counsel table after the jury returned its $175M verdict, which is trebled under federal law. The lawyers with whom he tried the case handled press interviews with mobs of reporters outside the courthouse while Gravante sat, alone in the courtroom, enjoying perhaps the biggest win of his career and checking his Blackberry for updates on his father’s health.

As these things go, after the initial fraud, Kovacs did everything right but still was told in 2009 that upon his return to the U.S., he would be detained. Eventually, the case made its way to Gravante, who resurrected the ancient and arcane doctrine of error coram nobis – basically the opposite of habeas corpus (let the body go), and meaning a writ to

His father passed away in March 2015. A few months later, Judge Rodney Gilstrap added penalties to Trinity’s tab, which now totals $663M. The case is on appeal to the 5th U.S. Circuit Court of Appeals. Perhaps fittingly, Gravante and some friends purchased the boat where he and his family spent some of their last, best times with his dad. It’s called Lady Victory.

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WILLIAM FOGG FEW FIRMS OFFER THE DEPTH OF

Cravath’s Corporate department, which boasts 44 partners who regularly are called upon to handle the world’s most sophisticated deals. The firm has provided counsel to the entrepreneurs, bankers, inventors and executives who have built the U.S. economy for nearly 200 years, from handling the financing to build the nation’s railroads to restructuring the nation’s auto industry. Cravath demonstrated its corporate clout across the board in the past year, with blockbuster deals in M&A, securities and banking. The firm advised Royal Dutch Shell as U.S. counsel in its $70B acquisition of BG Group; and Cigna Corporation in its pending $54.2B merger with Anthem. In the securities arena, Cravath represented the underwriters in connection with the $5B offering of Actavis. And it represented JP Morgan, Mizuho and Wells Fargo in one of the largest acquisition financings ever – a $36.4B bridge credit facility in connection with Actavis’ acquisition of Allergan. A deal that was particularly challenging and high profile was Ferrari’s $982M IPO, in which Corporate partner William V. Fogg led the firm’s representation of the underwriters, led by UBS Investment Bank and BofA Merrill Lynch. We recently discussed that deal, and how Cravath has built such a deep corporate bench. Lawdragon: Tell us a bit about the Ferrari IPO last October. IPOs were already hitting the doldrums then, but Ferrari had a great performance. William Fogg: It was a great deal to work on. Fiat Chrysler had previously announced that it was doing an IPO of 10 percent of the shares of Ferrari, and spinning off the remaining 90 percent. We went to Italy for five days in July 2015, to Maranello, which is a Ferrari company town, to get the filing and diligence completed. The five days were pretty grueling, with meetings starting on a Sunday and going on constantly until we filed. The tours of the plant were fascinating and it gave us a sense of the rich history of the company and the power of the brand. The company people were great hosts and of course took us to the test track where the drivers took us around in a few of their high-end models. That was fun. The initial filing happened pretty quickly after the deal started and we ended up with a very successful IPO and Ferrari re-domiciled as a Dutch company with all its assets in Italy.

PHOTO BY: LAURA BARISONZI

BY KATRINA DEWEY LD: How did you get involved in that deal? WF: Through a series of transactions following the Chrysler bankruptcy and government bailout, Fiat became a 60 percent owner of Chrysler. The other 40 percent was owned by the VEBA, a trust set up to fund post-retirement benefits for former Chrysler workers. Fiat wanted to buy the whole company, but they couldn’t come to agreement with the trustees on a valuation for the price of VEBA’s stake. And the trust had a liquidity right – an IPO right. I got involved when the trustees delivered their notice to do an IPO of Chrysler, and JP Morgan called. All along we suspected the Chrysler IPO would not happen and that as it got closer to being priced the road show would move the parties together on the valuation of Chrysler. That is exactly what happened, Fiat bought the remaining stake and then after that we did a few debt deals for Chrysler, now a subsidiary of Fiat, and then for FCA (as Fiat had renamed itself). Later they decided to do an IPO of Ferrari (a subsidiary of FCA), and by then we had developed a great relationship with the company and the Sullivan & Cromwell team, who were terrific to work with. LD: Is this the type of deal you hoped to do when you joined Cravath after Columbia Law School? WF: I grew up around the law; my father (Blaine ‘Fin’ Fogg) was one of the early partners at Skadden, so I grew up around lawyers, bankers and clients. I majored in political science and economics at Brown, then spent a summer in the Sullivan & Cromwell mailroom. I also spent summers at Bear Stearns in the brokerage operations back office and at Merrill Lynch in investment banking. I thought about doing a JD/MBA, but realized during law school that I was ready to get to work. I considered litigation, but after my first-year summer at Shereff Friedman, where I did litigation, research and writing, I knew in my gut I was going to be a corporate lawyer. Then I spent my second-year summer at Cravath, splitting between corporate and tax. I liked the deal flow, sitting in negotiations. When Cravath made me an offer, I accepted. LD: Can you explain the training a corporate lawyer goes through at Cravath? WF: Our rotation system is unique. On the corporate side, lawyers are expected to master a wide range of

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500 corporate issues as they rotate through our banking, securities and mergers and acquisitions practices. I joined full-time in September 1991 and spent my first year in commercial banking, working on some big leveraged deals. I worked for Allen Parker (now presiding partner of the firm) and Jim Cooper, who did more investment-grade credit work. I worked on leveraged finance with Allen, who’s one of the guys who invented it. One of my first deals was Time Warner buying Six Flags. It was a leveraged acquisition and Time Warner had to borrow money from our client, Chemical Bank (now part of JPMorgan), to do the deal. I had been at the firm for three months and handled the collateral part of the deal, while Pat Moriarty (now a Senior Attorney) did the credit agreement with Allen. The collateral work wasn’t sexy, but it was important. You get a lot of experience here right out of the box. LD: What about your second year? WF: That year I rotated to one of our securities groups, and worked for Kris Heinzelman and Collier Kirkham (now retired). We mostly handled high-yield deals for First Boston, which is now part of Credit Suisse, and also did some IPOs. In my prior bank work, we basically negotiated the terms of the loan. In securities work, we also negotiated the terms of the debt (bonds) but also had to do due diligence and write disclosures about the company. I found it interesting to listen to CEOs talk about their business. I’d sit through the diligence presentations and then read the corporate minutes. I learned to write disclosures about the company, including risk factors. I enjoyed the business aspect of that. My first securities offering was a high-yield deal for Sealy, the mattress company. In the early ‘90s, the SEC had not yet adopted Rule 144A, providing a safe harbor from the registration requirements for some securities sales. So every deal then was registered. First Boston had written commitments and had to use a lot of their capital, including on a funded bridge for Sealy. Our deal helped First Boston get its money back. LD: And then in your third year, you rotated to London? WF: Yes, in September 1993, and then I kept extending and extending so I stayed until the end of 1995. We treat London as a normal rotation, which is 15 to 18 months. Mine was longer because of some great deals I was working on. On my second day in London, the partner, John Young,

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a wonderful man and one of my mentors at the firm, tells me we have a major European privatization. I had no idea what that meant. So I’m a third-year associate and basically need to figure out what a privatization is, which is when a government sells off an asset, and then be the senior associate on the deal. At the time, the EU was requiring its states to privatize certain functions, including their telecom and postal services. The Dutch government took their postal, telecom and cable TV monopolies and put them into one corporation called KPN. We represented KPN in two deals while I was in London. The first was the initial listing in Amsterdam. We sold off one-third of the company and did a 144A offering in the U.S. Then, right when I was supposed to leave London, they announced they were going to sell a second tranche and also do a NYSE listing and U.S. registration. So I stayed and handled that. LD: Did you like living in London? WF: I loved London, both personally and professionally. The travel was great. I liked living in a foreign country, and working on cross-border securities deals was fascinating. You have to make local rules work with U.S. law and figure out the different accounting. It really hones your skills. Especially back then, you’d have to spend a lot of time explaining how to do a U.S. securities offering in a simple way to foreign clients who had never done one. That teaches you how to explain complicated things in an understandable way. LD: Did the rotation continue when you returned from London? WF: I rotated in to M&A for a couple of years when I returned in 1995. That was a pretty busy time. I worked with Allen Finkelson and Rob Kindler. Right away, I was thrown into a merger of equals between Ultramar and Diamond Shamrock. That was really memorable because Rob treated me as the senior associate and I had never done M&A before. It was a little daunting but I learned a ton. I also worked on deals for IBM and CBS. I found that my prior training in banking and securities prepared me for M&A, both because I had learned deal management skills and because M&A involves a lot of issues where securities and banking are implicated. LD: How long does the rotation system last, and what do you see as its enduring virtues? WF: Our corporate associates rotate their entire time as associates. It’s great training; we just think


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it trains better lawyers. It’s awesome for the lawyer and for the firm. It creates more well-rounded lawyers who can advise clients on a range of issues. We have great associates and sometimes it can be a bummer for a partner when someone rotates out who that partner has come to rely on, but that is the way we do things. In the long term it’s better for everyone. LD: Do you ever wonder if it would be more efficient to not have such a long rotation? WF: Never because I drank the Kool-Aid. It’s incredibly valuable to work with a wide variety of lawyers, who have different styles and different ways of doing things. It’s great training to work with as many partners as possible. And we think it helps us select the right people for promotion because we have a more informed view. It also makes the firm more nimble in changing economic times. For example, in the latter part of last year into this one, when securities was slower, some of the younger securities partners helped out on M&A. So while the various groups in Corporate may have an expertise they are most associated with, we’re all capable of doing most any type of corporate work. We chip in and help each other. LD: I can certainly understand how the rotation system plays a huge part in the collegiality and unique culture of Cravath. WF: It does. I value the collegiality among our partners and consider some of my partners among my closest friends. One of them also happens to be my wife (Julie North). The lockstep compensation also plays a huge part in it. Every lawyer in the same class makes the same money and we have never busted that. That means that the client gets the best resources placed on their matter. If I have a client doing something I’m not an expert in, I don’t have to worry that if I call my partner for help, I will make less money. Our system takes out a lot of the “not fun” side of doing our jobs. We’ve got a deal with just this happening right now. One of my clients is looking at doing a funky forwardderivative thing that I’ve never done, but my partner Andy Pitts is an expert in. So when the clients call and say “we want to do this,” instead of engaging in “learn and risk screwing up” I call Andy and everyone’s happy.

LD: How does the rotation system carry over once you become partner? WF: When you’re a partner, we organize in groups, basically as a bunch of little firms inside a big firm that have rotating associates assigned to us. We’re generally set up along subject-matter lines, so in Corporate we have three securities groups; two banking groups; three M&A groups; a real estate group; and a corporate governance group; and a few specialized groups, including IP and environmental. We change the groups over time to address changing client needs. LD: Can you talk about a few of the most interesting deals you have handled, and explain what made each deal interesting to you? WF: That’s a tough one. When you do this for 25 years there’s a lot to choose from. KPN was formative and Ferrari was fun. The capital raises for banks during the financial crisis were pretty hairy. I always like the IPO issuer side, because you help give birth to a public company. I’ve handled two issuer IPOs in the last few years. Evolent Health was an interesting private company formed by a partnership between the University of Pittsburgh Medical Center and The Advisory Board Company, a public company in the healthcare space. TPG later invested in the company. They came together to form a healthcare analytics company. They have a complicated structure, a socalled “Up-C,” that was challenging to set up and required a lot of negotiation among the company and the major shareholders. The other recent issuer IPO was for CyrusOne, a REIT. Our longstanding client, Cincinnati Bell, had a few data centers and bought a data center company, CyrusOne. We helped them to combine these assets and then did an IPO in a complicated so-called “Up-REIT structure.” I feel lucky to have been at Cravath my entire career. From the minute I walked in the door, I was given cutting-edge, complicated deals to work on and that taught me how to be a corporate lawyer. That’s why I find this question so hard to answer. There have been so many transactions over the 25 years I have been at the firm. Generally I have found that the more complicated a deal is, the more value you can add. And for us, the more complicated the better. That’s where Cravath excels.

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Stuart Liner LINER LLP (LOS ANGELES)

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STUART LINER IN THIS ERA OF LEGAL INNOVATION, WE

thought it was time to talk to Stuart Liner, who’s been reinventing the law business for nearly 20 years at L.A.’s Liner LLP. He brings a velocity and appreciation of risk to all aspects of the firm – from the practice of law, to its underwriting of 85 students in need, to its substantial returns from a unique investment fund.

With a core group of partners, Liner has built one of the largest independent firms in Southern California, focused on key strategic practices, including entertainment, real estate, food labeling and hospitality class action defense, and bet-the-company litigation – including a $24 million settlement the firm recently won against the State of California. Lawdragon: Your firm, Liner LLP, seems to be soaring while many traditional firms struggle. What led you to open your own firm when you were 34-years old? Stuart Liner: I was fortunate to be able to develop a substantial practice by my fourth year as a lawyer and was made partner at a 20-lawyer firm in Century City. From the beginning, I had a strong interest in understanding the business side of law firms and felt comfortable in a management role. When we started this firm three years later, I had become intimately involved with running a small law firm and felt confident that my growing practice would prosper in an environment in which I had tighter control over decision making. As a result, 19 years later, we have an exceptionally strong L.A. firm that does really good legal work while controlling our costs, and having a business acumen that gives lawyers here opportunities to make money doing something beyond just practicing law. LD: How does the firm today compare with your original vision of it? And what were some of the challenges along the way? SL: My vision was to have a law firm that would be more than just the practice of law. I wanted to go beyond the hourly model on the business side, but also have a strong element of giving back to our community with an emphasis on young people and education. To do that meant we had to become a really good law firm, which meant recruiting very talented lawyers. Early on we were successful in recruiting some excellent lawyers, like Joe Taylor, Eddy Klein, Ellyn

PHOTO BY: AMY CANTRELL

BY KATRINA DEWEY Garofalo, Michael Novicoff, Mitchell Regenstreif and Angela Agrusa, who are also fantastic people. That created a foundation that made it possible for us to grow our respective practices while continuing to be opportunistic about lateral growth. The problem was – from 1996 until just the last few years – we were fighting a tidal wave where everyone was going to national or international law firms. These firms were all putting boots on the ground here in L.A. We started to recognize there was a certain kind of really good lawyer that would come to our firm. It may be based upon conflicts, or they couldn’t work for someone in Philadelphia or New York or somewhere else, or because they were ambitious entrepreneurs wanting to take some risk for upside financial rewards. We were incrementally growing every year with an eye towards trying to create critical mass in practice areas that we thought were important to have in the L.A. legal market – entertainment, real estate, and litigation. A lot of those early years were very lucrative for us because we had clients that would allow us to leverage the practice. For many of those years, we were four associates per partner, which allowed us to focus on the hourly business as our primary source of income, and take some strategic risks. LD: What about those early years led you to believe this was working? SL: This is a business built on relationships. When you are in business with people you’re being tested every day. How are you going to react? What’s the communication like? Are you fair? How do the economics get worked out? Enormous goodwill was built between me and the partners in terms of trust and an ability to view this as a safe nest. This is a place where we are building something together. And it wasn’t just people who were leveraging off each other or asking “what’s in it for me”. There was a collective “we” as opposed to a lot of law firms that were really just cost-sharing law firms that share expenses tied to a formulaic matrix on their individual productivity, on originations and collections on time. We tried not to do that – which meant that some of us would leave more money on the table to invest in loyalty and creating stability within the core group of partners who were buying into what we were trying to do here.

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500 Between 2003 and 2008, we hit our proper economies of scale. We had enough people and dollars coming through the door and high enough rates to be able to make the money we wanted, and to make investments in other kind of risks and recruit. We grew from two lawyers to 80-something by 2008; which is a lot of growth from primarily lateral hiring. From that perspective, while it was a great run, there were problems that had more to do with the fact that we were growing just for the sake of growing, and perhaps not being as strategic and selective about lawyers, and the vision. LD: And then, I take it, you were hit by the financial collapse along with every other law firm. SL: When the bottom fell out in the economy, we were hit very hard. It was a difficult time for us. The best way I’d put it is we needed to reinvent. We were a little slow about doing that. My partners didn’t want to make the needed cuts, but I was willing to do whatever they felt was comfortable for them. We waited to make cuts probably nine months longer than we should have. LD: And when you cut, how low did it go? SL: By 2010, we were down to 50 lawyers. In many ways it was the best thing that happened to us because it made us get down to a strong nucleus of partners. It got us to a place at which – for better or worse – we really never had to worry about headhunters pulling our people out. And it created a committed core of partners. We don’t have a traditional structure with capital accounts and buy-ins, so we don’t put handcuffs on people. And because we don’t carry any debt and don’t have any exposure of any real consequence, people are here because they choose to be. We also saw this as a window of opportunity. We made the decision to dedicate 15 to 20 percent of our time on an hourly basis to some form of risk-based fee relationship. That requires us to be really sharp on how we run our hourly business. We need to run it efficiently and keep our costs down so that people can make a good living on the hourly business and hopefully get rewarded for the risk in a large multiple way for the time we are investing.

LD: Have you always been a risk taker? SL: Growing up, my family moved 26 times before I went away to college. I attended four high schools in four years. Although some of those moves were difficult, it also provided me valuable lessons about reinvention, adaptability, and being opportunistic. I was fortunate to have the stability of two loving parents and two loyal brothers who are also lawyers today, which made the chaos of our ever-changing environment manageable. I think that experience alone gave me the ability to look at every shift as a new opportunity to flourish and prosper. That translates well to what is happening today in our fastchanging world. If being comfortable with the many twists and turns in the road makes me a risk-taker in other people’s eyes, I’m okay with that. LD: Let’s talk about risk. Your personal success has been written about extensively. Do you bring that same strategy to the firm’s work? SL: As a firm, we try to keep within a window of risk tolerance where we know we keep the lights on and people are comfortable with their economics and then have the opportunity to play for upside. We are very disciplined about how much money and time we spend on cases so that it doesn’t significantly impact our cash flow and we avoid going into debt and doing things firms often do when they are too heavily laden into one or the other. If you’re going 50 percent risk and 50 percent hourly, it’s hard to make a stable living. For us, 80 to 85 percent of our time is in hourly work and is a good living as long as we collect our money and keep our expenses down. We had to stay very disciplined about keeping overhead low, staying efficient. We don’t have big offices, but we have nice space. We are smart about spending our money. LD: What does that mean for individual partners?

LD: Had you done any risk-based fee work before? So many law firms talk about it, but so few do it well or on any significant scale.

SL: We are a partnership with people that understand what being a partner means. This is a place in which you get to choose how much risk you want to take individually. If you’re not comfortable taking risk because of financial reasons, or it’s just your personality, our system can accommodate that and pay you at a high level based on your hourly business and your hourly productivity. You obviously don’t participate in the investment ventures at the same level as those people who are willing to take more risk.

SL: We had, which was one of the reasons why it seemed logical; intuitively it felt right to us.

We view this as the “choose me” state. You get to choose how you want to live and how you want to

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earn your income. It’s a self-actualized philosophy; know yourself. Don’t try and be something you’re not. We can accommodate the non-risk person. We can accommodate the high-risk person. And most people here fall somewhere in between. I actually have very few financial conversations with partners on an annual basis once we establish each person’s priorities. LD: How can that be? SL: Let’s be realistic. We pay well. That makes it easier. And historically when there have been liquidity events, people have felt the distribution has been fair. But we have never had a partner vote. Ever. We do not conduct all-partner meetings. Ever. LD: Never? SL: It has been 10 years since we last had an all partner meeting. We’re 28 partners, we communicate with each other every day. I’m walking those halls and knocking on people’s doors. People are in my office all day every day. Part of my job is to play traffic cop and to solve problems and to get the right people working on the issues, whether it’s management issues or client issues or economic issues. And trying to put together the right team and then deputize people who are comfortable making decisions. To get the right people for the right jobs. Part of my job is also to build consensus. If you look at it the way we do, it’s really about accountability. I would never make any decision of any consequence without getting the buy-in from all partners. We’ve never really had a situation where the partners weren’t unanimous on any real issue. Running a law firm this way requires rational conversations and forces partners to own what is really important to them. My experience being in law firm partnerships is typically when you have partnership meetings, the people with the very least to say talk the most. And none of us have the patience for that here. This may be unorthodox for law firm cultures, but it works well for us. LD: It’s not for everybody? SL: Not at all. If you view the process of democracy as an important component for running a business or a law firm, I can’t relate to you. I don’t think that you can make the decisions necessary in this fastmoving economy waiting for people to process over long extended periods of time, to then communicate their feelings and to build a consensus. You need someone who has the vision, is selling the vision, and then is taking into account people’s opinions along

the way and processing it to build the consensus. We have velocity to our decision making. And that’s a more productive way for us. We’ve made a conscious decision not to be a 250- or 500-lawyer law firm. We wanted to be nimble, to be quick, to move toward opportunities quickly and to do that you can’t be a slow-moving dinosaur. LD: For the right lateral partner, this sounds like a great opportunity. And certainly, you’ve added some legendary L.A. lawyers, including Larry Stein, Larry Feldman, Bob Kahan, and Bob Kaufman. SL: We have been fortunate to recruit some amazing partners over the past couple of years in addition to those guys. People like Jerry Neuman, Michael Kiely, Scott Robinson, Rocky Delgadillo, Steve Abram, Dennis Roy, Bill Pham, Wayne Grajewski, and Robbin Itkin. All of them came here searching for a better way to practice law – whether in the actual practice or the business of law – wanting to maximize their earning potential by stepping out of conformity and doing what other law firms are doing for the sake of consistency. These are people with some guts who are willing to break habits, take risk and have a willingness to reinvent themselves when the world changes; and are people who can be accountable for their decisions and own their failures, which will occur when you take chances. These traits, in combination with the culture of shared opportunity and involvement, inspire a feeling of ownership in our partners. The builder in me carries over and the partners here feel like builders in our firm. This is unique to us. We have been approached by scores of national law firms over the past 10 to 15 years that were interested in acquiring us. And we have unanimously rejected those overtures because we value our autonomy, culture and upside potential. LD: How do you continue to practice while you’re doing all this? SL: I have an enormous luxury of being able to be at a firm of our size and have zero billing expectations. I do not bill time to any hourly clients. That doesn’t mean I’m not working on matters or that I’m not involved in matters, but my time is free. That gives me the ability to put myself to my highest and best uses, which is working with our partners to provide strategic input for clients and the law firm, and our investments of time and money. Read the full Q&A at www.lawdragon.com/2015/02/25/stuart-liner.

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Wayne Mason SEDGWICK LLP (DALLAS)

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WAYNE B. MASON IT WILL SURPRISE NO ONE THAT

Wayne Mason “always wanted to be a trial lawyer,” especially when you take into account that he has been at the top of his craft for decades. “In my neighborhood, many kids wanted to be a police officer or firefighter but not me,” Mason explains. “I don’t have any memory, nor does my family remember a time when I didn’t want to be a trial attorney. That’s unusual because there are no lawyers in my family.” The Dallas-based defense lawyer at Sedgwick LLP is on the short-list for companies facing their most critical litigation. Mason excels not only in the courtroom but also in the big-picture role of managing litigation and strategy for clients facing claims in multiple jurisdictions. These days, among his many cases Mason is using his vast experience crafting winning narratives on behalf of an engineering firm entangled in the Flint water tragedy. Mason received his law degree from Samford University Cumberland School of Law in 1984. Lawdragon: What led you to Cumberland School of Law as opposed to other options? Wayne B. Mason: Although I grew up in New York, I went to college in the South and wanted to stay. What many people may not know is that Cumberland is one of the most highly regarded schools in the country for its trial advocacy programs. There are national, annual competitions among law schools for trial advocacy and Cumberland is routinely in the top of these competitions. That, more than anything else, is what attracted me to the school. LD: What was your first trial? Can you describe what the outcome was and any memory that stands out? WM: My first trial was actually while I was still in law school. In Alabama you can receive a special permit that allows you to try a case under the supervision of a licensed lawyer. So, my first case was representing a disgruntled homeowner case with a claim against a builder. I can’t recall the specifics but I do remember that I lost. But even in losing the case, I learned a valuable lesson. The jury said afterwards that they hated my client, who was sitting behind me the whole time making faces in reaction to everything the defendant said. LD: Were there lawyers you looked up to as a young

PHOTO BY: JUSTIN CLEMONS

BY JOHN RYAN trial lawyer that you modeled yourself after? WM: Yes, there were many whom I admired. What I learned from them more than anything else was that graduating from law school and passing a bar exam is not a destination, it’s a beginning. Developing as a trial lawyer happens over a lifetime. To truly excel in this art form, you must commit to a lifetime of study and honing your skills. I’m a voracious reader having studied virtually every trial advocacy book ever written, as well as the lives of some of the greatest trial lawyers. I’ve studied transcripts of their trials and then developed my own style. The lesson is that you shouldn’t copy other people. Learn everything you can from what they know and what they do and then develop your own approach. LD: Was there a lesson you learned in the early phase of your career that you view as particularly key in reaching the elite levels of the profession? WM: I had some mentors who were very good lawyers, but I was taught to believe that the people on the other side of the “v.,” the plaintiffs, were basically the enemy. Too many times I was urged to be aggressive and non-cooperative and it wasn’t until I matured enough in the profession to realize that was a huge mistake. I have come to understand that you can be a successful lawyer, be cooperative, and still vigorously defend your client without resorting to intimidation and being disagreeable. LD: Along those lines, are there clear ways in which your courtroom style has changed over the years? WM: Absolutely. I won a lot of cases early in my career but my tactic was basically to out-argue the other side. That is not the best way to persuade. The real breakthrough in my career came when I learned that the narrative is the key to every case. Storytelling always matters, whether it’s a complex commercial case or a catastrophic injury case. It’s understanding and knowing how to build and deliver the narrative. LD: To an outsider, it would seem that managing complex litigation and leading broader, long-term strategy, as in a multidistrict litigation (MDL), involves different skills than actually being effective before juries in individual trials. Is it rare to have both sets of skills? How difficult is it to balance playing both roles? WM: The bottom line is that my job is to first and foremost protect my client’s brand. Litigation is most

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David Lira

Martin Lueck

GIRARDI | KEESE LOS ANGELES

ROBINS KAPLAN MINNEAPOLIS

Cheryl Little

Loretta Lynch

AMERICANS FOR IMMIGRANT JUSTICE MIAMI

U.S. ATTORNEY GENERAL NEW YORK

Judy Livingston

Colleen Mahoney

KRAMER DILLOF NEW YORK

SKADDEN WASHINGTON, D.C.

George Lombardi

Neal Manne

WINSTON & STRAWN CHICAGO

SUSMAN GODFREY HOUSTON

Chris Lometti

Greg Markel

COHEN MILSTEIN NEW YORK

CADWALADER NEW YORK

Simon Lorne

Steve Marks

MILLENNIUM CAPITAL NEW YORK

PODHURST ORSECK MIAMI

Kathleen Love

David Marriott

MCGINN CARPENTER ALBUQUERQUE, N.M.

CRAVATH NEW YORK

Jonathan Lowy

Craig Martin

BRADY CENTER TO PREVENT HANDGUN VIOLENCE WASHINGTON, D.C.

JENNER & BLOCK CHICAGO

Paola Lozano

Katharine Martin

SKADDEN NEW YORK

WILSON SONSINI PALO ALTO

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“I DON’T GET LOST IN THE MINUTIAE. I WORK WITH A HIGHLY SKILLED TEAM OF LAWYERS THAT WORKS ON THE ADMINISTRATION OF THE CASES. BUT, BEING THE FACE AND THE VOICE OF STRATEGY OF THE CASE POSITIONS ME, HOPEFULLY, TO MOST EFFECTIVELY UTILIZE MY ADVOCACY SKILLS.” often a threat to a company and an unwanted expense. I strive to understand the business objectives of the client and be mindful of those throughout the litigation . That typically means searching for ways to save money, which can be tens – and sometimes hundreds – of millions of dollars. Sometimes it means pursuing a case for a client who is a claimant, where we are seeking to recover a great deal of money. Senior lawyers must be good at many things. Clients’ objectives are frequently best met early in the process and the case doesn’t have to reach a courtroom. What my most sophisticated clients know is that the same critical communication skills trial lawyers use in the courtroom can be invaluable elsewhere. Whether you’re talking to the general counsel, the board of directors, a mediator or arbitrator, a jury or a judge the same communication skills can make the difference in ultimately saving (or recovering) large sums of money.

WM: What keeps me busy is that I have a large and diverse practice. Whether it’s advising the board of directors on corporate governance issues, working on SEC matters for Fortune 100 clients, acting as national coordinating counsel, or facing “bet-thecompany” litigation risks, the common thread is that generally significant damages are being sought or there’s the potential for significant impact on a corporation. These are always multifaceted, complex matters. I think the sweet spot, my expertise, is taking the extremely complex and making it simple. LD: What is the nature of your representation regarding the Flint water crisis? In all the coverage and anger, is there something that you feel that the public has missed or is not grasping with that situation? WM: I represent one of the engineering firms that advised the City of Flint with respect to certain elements of the transfer of water from the Detroit water source to the Flint River.

I don’t get lost in the minutiae. I work with a highly skilled team of lawyers that works on the administration of the cases. But, being the face and the voice of strategy of the case positions me, hopefully, to most effectively utilize my advocacy skills. In an MDL, for instance, when the other side knows there is an experienced trial lawyer defending the case, it often makes a huge difference for clients. And the administrative and trial elements intersect and complement each other because ultimately if the case can’t be resolved, you’re not having to play catch-up and parachute in to try the case. I have done that too, of course, but it is much more effective to involve trial counsel as early as possible in the case.

From a legal standpoint, it’s like a hypothetical on a bar exam; there are so many different issues raised. First of all, what occurred is absolutely a human tragedy, and we can’t lose that perspective. But my job, ultimately, is to focus through the courts, and sometimes even through the media, on the reality of what our client’s role was and what really happened – which at the end of the day, is what sets a trial lawyer apart. The ability to separate the grandstanding from reality. The ability to represent my client, focus on what really happened, and deliver the desired outcome. Flint is just one example.

LD: You handle a wide range of cases. Is there an aspect of your trial approach that you bring to all your cases, regardless of the subject matter?

LD: What do you do to relax and recharge the batteries when you get a chance to take a break from your practice?

WM: Yes, that’s an easy answer. The narrative. Every case has a story and the classic story elements need to be told.

WM: I’ve shared that I’m an avid reader and lifelong learner. In what free time I do have, I’m an enthusiastic fly fisherman and golfer. I also have a lake house where I enjoy spending time with family. Almost everything I do in my free time is with family.

LD: Can you talk a bit about what is keeping you busy these days?

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CLIFFORD ARONSON, BRIAN DUWE, IVAN SCHLAGER, ERICA SCHOHN, SALLY THURSTON: THE NEW WORLD OF GLOBAL DEALMAKING

BY KATRINA DEWEY

ONE OF THE MOST PROFOUND CHANGES

in the practice of law is its globalization. We hear that concept every day, but with little discussion of what it means to the lawyers on the front lines successfully negotiating cross-border deals.

Today’s best lawyers bring an in-depth knowledge of their clients’ business objectives when navigating the complexities of these nuanced deals. Beyond M&A capabilities, a successful deal team is multidisciplinary and well-versed in global considerations – from international tax implications to workers’ rights in France, or the possible national security issues that may arise when a Chinese company buys an enterprise that has NSA contracts. We had the opportunity to talk to a cross-practice group of partners from Skadden, which in 2015 became the first firm to exceed $1 trillion in annual M&A deals. Our conversation underscored just how strongly today’s global dealmaking environment is rooted in the intersection of government, finance, tax and competition, and is increasingly impacted by challenges ranging from national security and employment and compensation issues to data privacy and cybersecurity considerations. Clifford Aronson, the North American leader of Skadden’s Antitrust and Competition Group, is based in New York. Brian Duwe heads Skadden’s Chicago office and is a top M&A and corporate lawyer. Ivan Schlager, based in Washington, D.C., heads the firm’s Committee on Foreign Investment in the U.S. practice. Erica Schohn is a New York-based partner providing compensation and benefits advice on U.S. and cross-border transactions. Sally Thurston, a senior tax partner based in New York, offers multinational clients advice on the tax implications of transactions as well as tax planning. Lawdragon: Let’s talk about how global dealmaking has changed in the past 30 years – and what type of team a firm needs to be successful in today’s

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M&A environment. Brian, how do you establish the architecture of a global deal at the outset and decide which lawyers and practices you need to have at the table? Brian Duwe: The architecture is almost always driven by the nature of the parties involved and the specific facts and circumstances of the deal. We review a wide variety of factors at the outset and identify the fundamental issues that are likely to drive structure. Tax is often a big factor because the structure you choose can have very different tax results and value implications for various constituencies. In larger global transactions, differences in tax regimes may also drive the ultimate choice of jurisdiction in which the resulting company will reside. You also have to consider the certainty of getting a deal done. Antitrust and other regulatory regimes that can delay or derail a transaction are almost always a factor in considering structure and terms, and those are increasingly more complex global issues. In cross-border transactions we have to consider whether either party is government-owned or whether there are strategically sensitive assets involved and, if so, what political and security issues may arise and what clearances may be required. The process also involves identifying and managing the expectations of the stakeholders involved. These parties may be large shareholders, debt holders, major contracting parties and others. Depending on the jurisdiction, you may also have to consult with a works council or other labor-related group to address the needs of employees and labor organizations that may be impacted by the deal. To address all of these and many other complex issues in a global transaction, you need to consult with an array of subject matter experts. At Skadden, we have specialists around the globe and across a wide variety of practices who are not only at the top of their fields, but who are also experts in how their practices interact with the M&A process. Once we have assembled our team, we prioritize the issues with the client and begin to work together to structure the deal. It’s rare that our initial proposal

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Sally Thurston

SHERRILYN IFILL

BY JEFF SCHULT

IF ANY ORGANIZATION CAN BE SAID TO

people’s expectations of what is possible.

have shaped and framed the modern discussion of civil rights in America, it is the NAACP Legal Defense and Educational Fund. “The best civil rights law firm in American history,” as President Obama called it, has never been content to rest on its laurels, and Sherrilyn Ifill, named president of the LDF in 2012, has determinedly pushed the mission and dream of equalAronson rights forward on every front. Clifford In a year (NEW that has been marked by the 50th anniverSKADDEN YORK) sary of the signing of the Civil Rights Act and the 60th anniversary of Brown v. Board of Education, Ifill, NYU Law ’87, has made the most of opportunities to remind the country both of how far it has come and how far it has to go when it comes to providing for equality under the law, political and economic fairness and justice, and human rights. LAWDRAGON: You’re the seventh President and Director-Counsel of the NAACP Legal Defense and Educational Fund, a firm that has played a pivotal role in civil and human rights law and litigation in the United States for 75 years. Do you ever sit at your desk and wonder, “What would Thurgood Marshall have done?” And what do you think he’d have to say about the NAACP LDF in 2014? SHERRILYN IFILL: No pressure, right? Actually I do channel former Director-Counsels quite a bit. I find that each one in their own way was creative, bold and original. I push myself to be more courageous largely because of the example that each of them set. I think that Marshall would love the work we are doing and our powerful voice. I speak with Mrs. Marshall a fair amount (she sits on our board), and she keeps up with our work. I think we’d be in good shape if Justice Marshall were asked about us today. LD: You’ve worked in civil rights, one way or the other, for much of your professional career. How do you measure progress? Is it disheartening to still be litigating over the Voting Rights Act? SI: It’s disappointing to be sure. We all hoped that America would move faster towards racial equality. But anyone doing this work knows that progress is full of stops and starts. We measure progress not only by the creation of access and opportunity, but also by material changes in the lives of real people. I also think it’s important to see progress as changing

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SKADDEN (NEW YORK)

LD: You’ve said your mentor was Derrick Bell, who was the first tenured African-American Professor of Schohn Law at Harvard Law and taught atErica NYU Law. How did that relationship develop and what did youYORK) SKADDEN (NEW learn from him? SI: Derrick Bell was one of my mentors (I have been blessed with many mentors) and he principally encouraged me when I was writing my book. In fact it was Prof. Bell who insisted that I apply to MacDowell, the writing colony, to break through writing some critical chapters. I applied and was accepted and wrote for 8 hours a day, every day for a month. Best of all, he never allowed me to develop a sense of satisfaction – even about civil rights victories. And he saw the subtle and devastating ways in which victories were often infected early on with the seeds of future defeats. Brilliant, insightful and compassionate man. Plus he was just fun. LD: How much does your role as president have to do with fundraising? Does the NAACP LDF have enough resources to fulfill its broad mission? SI: Fundraising is a key part of my job and no, we do not have enough to fulfill our mission. LDF has become an institution and people just expect us to do what we do. But we need resources to support this work. Our attorneys work so hard, and carry such a heavy load and yet to pay just for their travel, for depositions, for expert witnesses is a struggle. Every lawyer in this country should be a supporter of LDF. That’s how significant our role has been in shaping the rule of law and transforming the profession. LD: Among your writings is a critically acclaimed book on the history of lynching in the U.S. Are there have shaped and framed the modern discussion of civil rights in America, it is the NAACP Legal Defense and Educational Fund. “The best civil rights law firm in American history,” as President Obama called it, has never been content to rest on its laurels, and Sherrilyn Ifill, named president of the LDF in 2012, has determinedly pushed the mission and dream of equal rights forward on every front. have shaped and framed the modern discussion of civil rights in America, it is the NAACP Legal Defense and Educational Fund. “The best civil rights law firm in American history,” as President Obama called it, has never been content to rest on its laurels, and

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500 lines up with the other side’s suggestion, so the next step is negotiation. As the structure evolves, you may have to return to the drawing board and reshuffle the pieces numerous times throughout the process, and that requires constant engagement with the entire team. LD: How do all of your various areas of expertise come into play in today’s global transactions? Ivan Schlager: In global cross-border deals, you can have a multijurisdictional national security review in France and the United States that impacts your tax structure while you’re simultaneously handling European and U.S. antitrust issues. The important thing is to understand how each other’s areas may impact one another, to understand the risk allocation issues related to the M&A side or the regulatory side or the tax structuring side. That way, if you come up with a tax structure, for example, you can anticipate how the regulators will view it if they have to impose a mitigation plan around a certain group of assets. We have an advantage, because we present a global platform that can manage the risk across multiple regulatory jurisdictions. Clifford Aronson: In some areas, like antitrust, the ability to get a deal done is partly a function of how often you’re in front of the agencies. Have you had similar deals in the past? How much experience do

you have in the industry? A lot of firms may have antitrust capabilities, but they don’t know the agency well or haven’t had a recent case, and the agency’s always changing from political, policy and economic perspectives. Schlager: The volume of work that a firm handles and the depth of its experience with different types of transactions gives it credibility with the regulator. For example, when we were in front of the CFIUS regulator on a very difficult transaction, we were tasked with putting a mitigation structure into a certain entity, but there were related tax consequences. We were able to bring in our tax team to explain to CFIUS how we could structure the deal in a way that also addressed the government’s concern. To do that in a seamless fashion is unique. LD: Let’s talk about the critical role tax now plays in global deal structuring – with inversions, of course – but also with every deal I take it? Sally Thurston: Potential tax implications need to be understood from the get-go. Is this an equity deal? A cash deal? When it’s cross-border, you have to consider how the funds are going to flow through the company. Will there be financing? In what jurisdiction will it take place? Where is income generated? Deductions? If it’s an equity deal, there are myriad rules we have to navigate. For example, if we decide

Brian Duwe SKADDEN (CHICAGO)

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to incorporate in the UK, because that’s where one of the parties is located, we have to ensure that’s respected for U.S. tax purposes and the like. In some situations, Skadden’s tax attorneys know about the potential transaction before our M&A lawyers do. The tax considerations can be so integral to making the transaction work that a significant amount of upfront tax analysis is required to determine whether a potential deal is viable before bringing in the deal lawyers to discuss how to put it together. LD: So a big deal could come in through the tax lawyer? Duwe: Deal lawyers love when that happens. Thurston: From a tax perspective, there can be two levels of involvement on global deals. The first is the kind of deal work in which a big transaction is announced and you’re tasked with negotiating with the other side and handling the external contracts and public-facing information. The second – and what we’re very often doing on behalf of our clients – is advising on the plumbing inside the company. How will you make a potential deal work? How do you merge all the operations after the fact to take advantage of cash that may be trapped offshore in a tax-efficient way? Then, when that tax planning comes to fruition, we can say, “Let’s bring in our deal team, too, to get the transaction done.” Having such a strong tax planning practice allows us to be involved before the transaction, during the transaction and afterwards when the merged companies begin to integrate their operations. LD What you’ve all described is quite a sea change from when you started practicing. Could you talk a bit about the evolution of global dealmaking – including the enormous scale of the deals you now do – and how that’s changed your practice over the years? Aronson: When I started practicing, the largest transactions tended to be oil transactions like Conoco Mobil. They also were usually domestic, so we never really focused on antitrust issues outside the United States. Today, there are 120 or more antitrust authorities around the world, all of which want a piece of the action. The markets have become more global in terms of commerce, so antitrust issues can apply across borders. Cross-border transactions involve governments from all over the world, which work together, coordinate

PHOTO BY: STEVE EWERT

and share information. They don’t always agree on the theories, but they share information, so you can’t make one argument to the European Union and another to Brazil and another argument still to China – because they’re all talking to each other, and it will come back to haunt you. That’s a big change in antitrust law. Increasingly, antitrust enforcement is also consistent in the more developed economies. Antitrust is driven, in theory and in law, by economics. There was a point in time when the European Commission didn’t have an economist on staff. Now the EC has economists, which is good, and their theories are closer to those in the U.S. Brazil – another big antitrust-enforcing country – has economists, and its legal approach is more like the EC. The one unknown is China, where other policies impact the antitrust outcome and make the process difficult to predict. LD: Let’s say all five of you are working on a deal together and you’re getting hung up on antitrust in Brazil, or there’s an employee compensation issue that’s bubbling up. How are you communicating with one another in real time to keep the train moving while some issues seem to be jumping the tracks? Erica Schohn: It is critical to communicate because certain milestones are gating items to the deal’s progression. For example, in these large cross-border transactions, there are often employees in more countries than there are even legal entities. Employee-transfer issues, which require consulting with works councils and unions all over the world, create significant timing challenges in global transactions. The employees impacted by a deal need to know the details around the post-closing terms and conditions of their employment, including the details surrounding their positions, their compensation and their benefits. This requires balancing the overall timeline of the deal with the legitimate desire of the employees for information and the legal requirements in each country surrounding employee communications. Each country has its own protocol with differing timelines for works council, employee representative and individual employee consultation. Much of the communication with the employees occurs after signing the transaction agreement, but in some cases, such as France, the consultation needs to be done prior to signing at a time when few employees know about the impending transaction. Others don’t have any prescribed timelines, so you have to rely on past deal experience to develop a practical process that

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500 is reasonable for all the different stakeholders while at the same time complying with legal intricacies around the globe. As an attorney, you never want your area to be the one holding up the closing or the one to force the complication of a delayed closing in a far-away jurisdiction. Duwe: From a communications standpoint, it often will be the M&A lawyer who has to run point and work back and forth with the tax people, with Erica and her team on benefits and employment and labor issues, with Cliff on antitrust, with Ivan if we have foreign investment questions and issues, and so on. Issues may be raised in one particular area that seem significant in isolation, but when you look at them from the perspective of the whole deal they may not be as large of a concern. The M&A attorney is often in the role of harmonizing and prioritizing the various issues that are raised by the experts. LD: Ivan, I would suspect your practice has probably changed the most as it has grown in importance to dealmaking? Schlager: Definitely. Setting aerospace and defense aside, we began experiencing an evolution around 2000, as we saw more network deals and as cybersecurity really emerged as an issue. It started with telecom network and telecom equipment deals, and certain transactions that connected to the energy

Ivan Schlager S KADDEN (WASHINGTON, D.C.)

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grid. After Dubai Ports World attempted to buy an operator of seaport terminals in 2006, there was an explosion of rigorous national security reviews. We’re now seeing other jurisdictions, such as France, pick up national security reviews. It’s not a one-on-one transaction with CFIUS agencies anymore, because whatever commitments the client makes to CFIUS will be examined in other countries. We’ve spent a lot of time in front of the French National Security Agency and have become adept at marrying the commitment a client makes to the French authority with the commitment we have to make to CFIUS with the commitment the Chinese buyer would have to make in front of NDRC (National Development and Reform Commission). I was working on a difficult transaction over the last couple weeks in which the commitments we made had an impact on a research facility in Germany and a software development facility in India. The practice has become extremely global in nature. LD: What role does shareholder activism play in deal structuring and how how much do those concerns influence the work each of you do? Schlager: We have had situations in which we highlighted the presence of an activist for specific agencies to explain why the company was making certain decisions and the pressure the management team


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was under to deliver for shareholders. We’ve also had activists who’ve tried to manipulate the CFIUS agencies to negatively affect a deal when those agencies are really supposed to look at a transaction and address the narrow national security issues. To the extent activists have been an issue, they’ve been played both ways, right? Duwe: You can also overstate the impact of shareholder activism on M&A. If there’s opposition to a deal among the shareholders, it attracts a lot of attention and probably gets disproportionately more play in the press than most other transactions. That being said, communication with shareholders has never been more important in M&A transactions. How you communicate a deal, especially at announcement, and how well you are able to work with shareholders so they understand the strategic logic of the transaction are more important parts of the equation than they used to be. In the largest cross-border deals, the shareholders on both sides will likely need to approve the deal; and between the deal announcement and closing, effective shareholder communication can be critical to getting a deal done. Aronson: I find that sometimes companies are being forced to pursue strategic transactions with their competitors that maybe they wouldn’t otherwise consider. It can be challenging because one of the most important questions that an antitrust lawyer can ask a client is, “Why are you doing the deal?” Normally you want a very pro-competitive, outputenhancing efficiency-based answer, like “I’m doing it to reduce costs and increase innovations that produce or increase service levels.” But a lot of times the answer is, “I have a shareholder activist who says I better consider this transaction and hopefully we’re going to get some benefits from it.” We have to be able to handle the risk of these kinds of deals from an antitrust perspective, including who is going to take on the risk and what the cost is to the clients. Thurston: You can encounter shareholder issues in the inversion sphere because that’s such a controversial transaction. It’s a lightning rod for criticism. It is a taxable transaction to the shareholders of the U.S. company, and usually they’re not getting any cash from the deal that they can use to pay their taxes. Most of the entities that own the shares in these big public companies are tax-indifferent, and they don’t care. But if the company has a big retail base, it has moms and pops who’ve had share certificates in their

PHOTO BY: ELI MEIR KAPLAN

desk drawer for the last 50 years and now are getting taxed. The challenge becomes how to explain to your shareholders that this is a good thing, this is a deal-enhancing, value-enhancing proposition over the long term. At certain levels of ownership, another issue is that management could be hit with an excise tax; someone like Erica has to deal with this all the time. Very often the company does something to help those executives deal with the tax burden, and doing so attracts the ire of the shareholders. A lot of that is disclosed in the proxy statements, but not all shareholders will understand the tax analysis. The challenge is how to get these shareholders to understand the situation and get on board. We’ve had instances in which very small shareholders write in and say, “I really don’t like this and at your next shareholder meeting I want to propose a resolution that the company is not going to engage in these types of transactions anymore.” LD: That must be fascinating when you’re trying to make a billion-dollar deal and somebody with a few shares can send it sideways. Schohn: When innovations like inversions come on the scene, they inevitably impact other areas. The excise tax is a good example. As a result of shareholder activism, companies generally have stopped giving executives tax gross-ups for golden parachute excise taxes incurred by executives because of the large payout they receive in a transaction. But, with inversions, executives face a different type of excise tax that investors hadn’t focused on before. It stems from a different provision of the tax code and applies even when executives aren’t receiving any payout in the transaction. Because the executives weren’t receiving money in the transaction to pay the inversion tax, companies were grossing them up – even those that said they wouldn’t gross people up for the tax on golden parachute payments. We’ve spent a lot of time explaining to shareholder activist groups and proxy advisory groups how this excise tax is different than the golden-parachute excise tax. Initially they didn’t understand that we weren’t going against policies we had already communicated regarding golden parachute tax gross-ups. It was an uphill battle but we eventually got the big proxy advisory firms to understand the technical differences we were dealing with, and not automatically recommend against a company solely because it was providing inversion excise tax gross-ups.

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Wally Martinez

Randi McGinn

HUNTON & WILLIAMS NEW YORK

MCGINN CARPENTER ALBUQUERQUE

Mark Martins

Patrick McGroder

OFFICE OF MILITARY COMMISSIONS NORTHERN VIRGINIA

GALLAGHER & KENNEDY PHOENIX

Wayne Mason

Jami Wintz McKeon

SEDGWICK DALLAS

MORGAN LEWIS PHILADELPHIA

Marco Masotti

Mike McKool

PAUL WEISS NEW YORK

MCKOOL SMITH DALLAS

Randy Mastro

William McLucas

GIBSON DUNN NEW YORK

WILMERHALE WASHINGTON, D.C.

Colette Matzzie

John Mead

PHILLIPS & COHEN WASHINGTON, D.C.

SULLIVAN & CROMWELL NEW YORK

Michele Coleman Mayes

Christopher Meade

NEW YORK PUBLIC LIBRARY NEW YORK

BLACKROCK NEW YORK

Darin McAtee

Richard Meadow

CRAVATH NEW YORK

LANIER LAW FIRM NEW YORK

Brian McCarthy

Mark Mendelsohn

SKADDEN LOS ANGELES

PAUL WEISS WASHINGTON, D.C.

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500 “WHAT’S IMPORTANT IS TO CONTINUE LOOKING AT WHAT’S CHANGING ON THE REGULATORY LANDSCAPE, IN PARTICULAR, AND TO MAKE SURE WE HAVE THE EXPERTISE AVAILABLE TO ADDRESS NEW DEVELOPMENTS AS THEY ARISE.” - BRIAN DUWE LD: Are there other areas, whether from a practice focus or the rise of global competition, you see over the next five to 10 years becoming an important addition to the core group of lawyers that comes together to get a big deal done? Duwe: It’s hard to predict. I’m not sure we would have predicted how CFIUS has evolved. When I started practicing, it didn’t exist. What’s important is to continue looking at what’s changing on the regulatory landscape, in particular, and to make sure we have the expertise available to address new developments as they arise. Schlager: Cyber is kind of a catch-all phrase, but specifically remote access to networks and software updates and how those are accomplished will grow in importance, as well as patches and phishing and firmwide updates that could potentially compromise networks. We live in an interconnected economy – which is also a venue for actors from Russia or France or Israel or China to compromise certain systems. This is an area we haven’t fully come to grips with, but that’s going to evolve over time and be ever more important. Aronson: On the antitrust side, there’s a theory being floated that having access to big data as a result of a transaction will somehow prevent a competitor from accessing that big data even if the company is not using it today. The ability to evaluate these theories is going to be important, and it’s not just in the antitrust arena. Big data also raises privacy concerns, and it remains to be seen how legal theories are going to develop to cover these concepts. Schohn: We’re seeing more and more focus on data privacy and that’s an area that is continuing to develop with the new Privacy Shield rules between the U.S. and the EU. More recently, we are seeing both billion-dollar companies with massive workforces and smaller companies with global workforces. Even where a transaction doesn’t immediately feel like a huge cross-border undertaking, we find often that the workforce is distributed around the world. One issue

that we often run into with these deals, irrespective of the size, is data privacy. We’re trying to get the deal done by sharing information between the companies and suddenly people are saying, “Wait, I can’t share this yet.” And the other company says, “I can’t get this deal done for you if you don’t share that information.” Duwe: Cyber also impacts the overall risk assessment of a deal. You have to think more critically about the vulnerabilities of the related companies of a potential target, and what potential risks are embedded in their cybersecurity practices. Basically, are you importing risks and vulnerabilities that you didn’t have originally in your own business? Thurston: From a tax perspective, there are two things going on. If we ever get fundamental tax reform, that will change the playing field for a lot of multinational companies. Who knows whether it will happen, but it has more momentum than it has had in years. The second issue is the EU and its activism in terms of how they’re deciding state-aid cases and BEPS (base erosion and profit shifting) cases and the like. This will require more cross-border cooperation among tax advisors to make certain a transaction or structure works not only under existing law, but where it may be headed as a result of EU initiatives. LD: What I’m taking away from this discussion is the profound evolution of dealmaking since you started practicing. It was perhaps a largely linear process to get a deal done, even with contested deals. Now it seems like basically every deal is multidimensional. Duwe: It’s multidimensional because the landscape for completing these deals has become more complex. In today’s deals, you inevitably have to integrate advice from various team members across a wide range of practices and jurisdictions. But, as has always been the case, our ultimate goal is to ensure that the client’s decision-making process is well-informed, tactically sharp and ultimately drives an outcome that is optimal for their business.

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Blair Nicholas BERNSTEIN LITOWIT Z (SAN DIEGO)

name name FIRM FIRM FIRM (CITY)


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BLAIR NICHOLAS BLAIR NICHOLAS DIDN’T HAVE TO LOOK

very far to find a role model for his life in the law. The San Diego-based partner at Bernstein Litowitz Berger & Grossmann drew inspiration from his triallawyer father, Vernon Nicholas, to build a practice representing defrauded investors, for whom he has recovered billions of dollars. Nicholas has amassed an astounding record representing prominent public and private institutional investors and counsels them on whether to opt out of class actions to pursue their individual cases – which is never an easy decision. “The problem solving in my practice is akin to putting together a complex puzzle for each client to meet their goals and objectives,” says Nicholas, who is also a senior and co-managing partner of the firm. He graduated from the University of San Diego School of Law in 1995 and before that did his undergrad in economics at the University of California, Santa Barbara. Lawdragon: What led you to develop a practice focused on representing investors? And what specifically drew you to Bernstein Litowitz? Blair Nicholas: My father was a plaintiffs’ trial lawyer for over fifty years and some of my best childhood memories were watching him at trial passionately advocating for justice and compensation for the injured. When I saw the difference that my father made in people’s lives, I had a vision for a similar calling. It has been gratifying to represent investors – including tens of millions of state and local employees – who have had their retirement benefits and other savings depleted or entirely wiped-out due to stock fraud and egregious corporate wrongdoing. To know that I am working to hold corporate wrongdoers accountable for their predatory practices and at the same time returning hard-earned savings to the retirement accounts of firemen, police officers, teachers, and other hardworking Americans who have been defrauded at the hands of Wall Street and other corporate interests is extraordinarily rewarding. It is this work that attracted me to BLB&G, one of the top firms in the field, and we have to date recovered more than $30 billion for investors. LD: As someone who has practiced in this field for over 20 years – and who started practicing law the year that the Private Securities Litigation Reform Act was passed – what have been some of the major trends in securities and shareholder litigation?

PHOTO BY: PHILIP FERRARI

BY JOHN RYAN BN: When I started practicing 20 years ago, it was rare for an institutional investor to proactively pursue litigation to recover assets lost to securities fraud. Today, the institutional investor community is far more connected and educated about their fiduciary duties with respect to fraud, asset recovery, and violations of the securities laws. Recent high-profile scandals and collapses involving massive systemic wrongdoing have caused many institutional investors to revisit and evolve their philosophies with respect to litigation. This includes the accounting scandals of the early 2000s, the financial crisis and subprime meltdown, and the current probes into manipulation of the world’s financial markets, benchmark rates, and instruments by global investment banks and their proprietary traders. Today, rather than remaining passive, many of the world’s most prominent institutional asset managers are increasingly utilizing litigation and recovering substantial damages for their funds, clients, and beneficiaries. Another major trend is the advocacy from the institutional investor community to reform governance practices in the corporate boardroom. Public pension funds, mutual funds, and other large asset managers with long-term investment horizons are increasingly coordinating their voices to address deficient corporate governance and promote best practices, and advocate for constructive developments in the law which are critically important to ensure the integrity of our corporate model and the capital markets at large. Too often the business media focuses on activist investors with short-term interests, and ignores the recent wave of shareholder activism that seeks to promote the long-term interests of corporations and their stakeholders through sound corporate governance. LD: How has the institutional investor community’s role as litigants evolved since the 2008 crisis? BN: There is a reason that institutional investor leadership in securities fraud actions has accounted for nearly 90% of the top 100 securities settlements in history. Institutional investors are highly selective in the cases that they pursue, actively participate in the litigation strategy, select and closely monitor legal counsel, and demand significant recoveries for damages caused by securities fraud. Corporations and their management have significant legal cover and protection from liability and the efforts of insti-

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Carlos Mendez-Penate

Mark Morton

AKERMAN NEW YORK

POTTER ANDERSON WILMINGTON

Jane Michaels

Sara Moss

HOLLAND & HART DENVER

ESTEE LAUDER NEW YORK

Patricia Ann Millett

Elizabeth Mulvey

U.S. DISTRICT COURT FOR THE D.C. CIRCUIT WASHINGTON, D.C.

CROWE & MULVEY BOSTON

Martha Minow

Francis Patrick Murphy

HARVARD LAW BOSTON

CORBOY & DEMETRIO CHICAGO

Ted Mirvis

Scott Musoff

WACHTELL LIPTON NEW YORK

SKADDEN NEW YORK

Jeffrey Mishkin

Gary Naftalis

SKADDEN NEW YORK

KRAMER LEVIN NEW YORK

Steve Molo

Laura Neebling

MOLOLAMKEN NEW YORK

PERKINS COIE SEATTLE

Maura Monaghan

Daniel Neff

DEBEVOISE NEW YORK

WACHTELL LIPTON NEW YORK

Tom Moore

Lynn Neuner

KRAMER DILLOF NEW YORK

SIMPSON THACHER NEW YORK

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tutional investors to push these cases hard and hold wrongdoers accountable have impressed the courts and leveled the playing field in securities litigation. Not surprisingly, recoveries to shareholders have increased dramatically as a result of institutional leadership. LD: Has your role as counsel to large institutional funds evolved since the crisis? Have you seen more opt-outs and how do you decide when to opt out? BN: Since the financial crisis, I have generally witnessed an accelerating trend among institutional investors to explore litigation as a means to recover losses caused by fraud and other forms of corporate misconduct. This includes a rising tide of “opt-out” cases – where an institution with significant damages chooses to opt out of a class action and bring its own individual case. However, institutions must be selective in deciding whether to opt out of securities class actions, as there are only a small number of cases that present strong and meritorious opt-out opportunities. While I have been highly successful representing institutional investors in opt-out matters, the assessment of whether to advise clients to opt-out in any given case involves careful consideration and weighing of many factors. As counsel and advisor to some of the largest institutional investors in the world, my principal role is to educate my clients about their various options so they, as fiduciaries, can make an informed decision of what is in the best interest of their institution and its clients. In some cases their decision is complex, in other cases involving clearcut wrongdoing and outsized losses, the decision can be relatively straightforward. LD: What about future trends? BN: I believe that shareholders will increasingly demand formal court appraisal for the fair value of their shares in connection with mergers and acquisitions. Increasingly, institutional investors are not passively settling for the merger price negotiated by corporate insiders and are actively demanding fair value for their shares by asserting appraisal rights – which entails filing a claim for a judicial determination of the fair value of the shares being acquired. The appraisal remedy is an important check on the merger negotiation process, as well as board negligence and opportunistic insider behavior. The appraisal remedy assures minority shareholders that they will receive fair value for their shares. No question, it is a powerful remedy that more and more institutional investors are taking advantage of.

LD: What is the most interesting aspect of your work? BN: The most interesting aspect of my work is providing advice to institutional investor clients on how best to maximize their recovery of damages caused by securities fraud. There are many considerations and options and no client or securities action is the same. Therefore, my practice involves the weighing and analysis of complex risks and benefits to formulate recommendations that are in the best interest of each client, based on its unique circumstances and objectives. The problem solving in my practice is akin to putting together a complex puzzle for each client to meet their goals and objectives. It never becomes monotonous, and increasingly encompasses pursuing remedies both within and outside of the United States. I also really enjoy strategizing with the other attorneys at BLB&G. I am fortunate to work with many of the most talented attorneys in the securities litigation field and working through complex issues with my colleagues is engaging and thought-provoking. LD: What is rewarding about playing a leadership role at such a renowned firm? BN: It is extremely rewarding to serve in a leadership position at the firm as I have the opportunity to strategize with some of the most talented attorneys in the field on a variety of matters, even matters in which I am not principally involved on a day-to-day basis. I also have the opportunity to help develop, mentor and foster junior lawyers’ development and nothing is more satisfying than watching those lawyers rise to the top of the securities litigation field. Finally, to participate on the firm’s management committee and help set the strategic course for the firm with the sage input and leadership of our founding partner, Max Berger, is extremely rewarding and enriching. LD: What advice would you offer young lawyers interested in representing investors? BN: Their top priority should be to know their clients’ goals and objectives. Every client I represent has a different goal and objective, which can dramatically alter the strategy and course of the litigation. Also, securities litigation is constantly evolving and changing and it is critically important to stay apprised of all new developments, court decisions and regulations that may impact your clients so you can provide the most strategically effective and timely advice possible. Read the full Q&A at www.lawdragon.com/2016/08/07/ lawyer-limelight-blair-nicholas.

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Jeffrey Kessler WINSTON & STRAWN (NEW YORK)


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JEFFREY L. KESSLER JEFFREY KESSLER LIKED SPORTS - ANY

sports – during a somewhat idyllic childhood near Coney Island, in Sea Gate, New York. He was an “enthusiastic athlete, not entirely talented,” he says, but he relished the competition. What he was really great at was analyzing competition, an interest that budded as he went through Columbia Law School. He also was particularly taken with the nascent notion that you could create social change through the law – specifically the law of competition.

BY KATRINA DEWEY antitrust cases. It was the Oscar Robertson litigation for the NBA players union. [Robertson was president of the union and challenged rules that restricted player movement between what were then two basketball leagues and with the NBA itself. It set the framework for today’s NBA free agency.] That case settled in 1976 and I arrived in 1977, so I started as a very young lawyer and was asked by Ira to do some of the antitrust work for the Players Association. LD: It must have been thrilling to work on that.

Thirty years later, the co-chairman of Winston & Strawn has played a starring role in revolutionizing the rights of athletes - making the competition more competitive, if you will. While the headlines shout about his work on behalf of Patriots all-star quarterback Tom Brady, Kessler himself is a much quieter presence, appreciative of the opportunity to work with union and league leaders to make sports workplaces for players more economically fair and safe.

JK: Robertson was the first successful use of antitrust for the players. The previous attempts had been unsuccessful and the Supreme Court had ruled that baseball wasn’t subject to antitrust because of a 1922 decision written by Oliver Wendell Holmes. Congress never changed it, the Court wasn’t going to change it on its own and nobody yet knew how important antitrust rights for players would become in all of the other sports.

Lawdragon: When did you decide to become a lawyer?

LD: Did you find some threads of those values from the ‘60s and ‘70s in your work representing players?

Jeffrey Kessler: I originally thought I would go into politics. As a teenager in the late 1960s, early 1970s, I was motivated by the anti-war movement and the civil-rights movement. Core values of the rights of the individual, due process, fairness and equality emerged from that era.

JK: Sure. The player issues were very connected with the issues of racial equality, individual freedom and individual issues of due process. Those were very much issues that plagued professional athletes. They really had very few rights, uniquely, in the workforce because of the systems that the leagues imposed. They couldn’t choose who they could work for. They couldn’t choose where they lived – things most of us took for granted. Even the stars didn’t have those freedoms. Of course there were other important issues as well. A lot of sports had very large African-American populations, which connected these issues to civil-rights issues as well.

I wanted to go to law school because I thought it was an important education to get to go into government. But at Columbia, I concluded I actually wanted to be a lawyer. I realized that I was excited by legal issues and the case law. I discovered, in particular, that I liked antitrust law and it set me on a different path. LD: How did you pursue this interest in antitrust? JK: Antitrust was my first elective at Columbia, and it wasn’t my first choice. But as I started reading the cases and learning the principles, it captivated me both from an advocacy standpoint as well as an intellectual standpoint. After that, I took an advanced antitrust course, and did a summer internship for an antitrust professor working on his casebook. I joined Weil Gotshal out of law school because I thought it was the best New York-based antitrust practice. Ira Millstein headed the practice there and became a mentor to me. That’s also how I got into sports work because Ira had one of the first sports

PHOTO BY: LAURA BARISONZI

LD: Do you find fulfilling your ability to challenge the leagues on behalf of individuals, as you did on the Freeman McNeil case again the NFL in the early 1990s? JK: It’s very satisfying, but it’s not really about my work alone. These were great teams of player advocates that were put together and I was proud to be among them. For example, Gene Upshaw was an unbelievable leader of the National Football League Players Association at the time of McNeil - and had the courage to do what no group of players had ever done before, which was to end the union so that it could not be used to block the players from asserting antitrust rights.

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David Nevin

Ted Olson

NEVIN BENJAMIN BOISE, IDAHO

GIBSON DUNN WASHINGTON, D.C.

Steven Newborn

Wayne Outten

WEIL GOTSHAL NEW YORK

OUTTEN GOLDEN NEW YORK

Blair Nicholas

Brian Panish

BERNSTEIN LITOWITZ SAN DIEGO

PANISH SHEA & BOYLE LOS ANGELES

Tom Nolan

Robin Panovka

SKADDEN LOS ANGELES

WACHTELL LIPTON NEW YORK

Eileen Nugent

Arrie Park

SKADDEN NEW YORK

HELLMAN & FRIEDMAN SAN FRANCISCO

Andrew Nussbaum

C. Allen Parker

WACHTELL LIPTON NEW YORK

CRAVATH NEW YORK

Bill Ohlemeyer

Stephanie Parker

BOIES SCHILLER NEW YORK

JONES DAY ATLANTA

Regina Olshan

Kirk Pasich

SKADDEN NEW YORK

LINER LAW LOS ANGELES

Ronald Olson

Brian Pastuszenski

MUNGER TOLLES LOS ANGELES

GOODWIN PROCTER BOSTON

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That means the players cut themselves off financially from dues check-off, which was, at the time, the financial lifeblood of the union. The players were willing to support this cockamamie idea that [Weil partner] Jim Quinn and I presented to Gene Upshaw as to how killing the union could enable the players to use antitrust laws in their favor despite having lost a prior challenge. We said, “To have antitrust rights, you have to stop being a union,” which was a radical idea then. It was the strength and character of Gene, Richard Berthelsen, Doug Allen, and the player leaders that were involved who were willing to risk it all to stand up to the league. Jim and I played our roles, but we were part of a great team, in the sports sense, that came together and was able to achieve this change. LD: That’s an important distinction as you are portrayed as being Tom Brady’s lawyer, when in fact you are representing Tom Brady as a member of the union. JK: That’s right. And Tom’s case was very much about the rights of individual athletes as much as it was about the rights of Tom Brady. You know, Gideon v. Wainwright wasn’t just about the individual in the case. In a lot of these cases we are trying to create precedents that will protect players in general so that even the last player on the bench cannot be disadvantaged or exploited by the leagues. It’s very much a group mentality in terms of what we’re trying to achieve in many of these player cases. That’s also the situation with the case we have now for the U.S. women’s National soccer team, who get paid much less by U.S. Soccer than the men’s national team even though they do the same work and have achieved far greater success. Yes, it will help these women, but they are engaged in this legal battle for equal pay for equal work primarily because they are trying to send a message and establish a precedent for women not just in sports but for women in the workplace generally. This case, like many of my sports cases, is very much connected to a larger issue than just the individuals who are involved. LD: Sports antitrust is only half of your practice. What do you enjoy about your other antitrust work? JK: I also get tremendous satisfaction out of the corporate side of my antitrust work. The issues there are very complex and often involve frontiers principles. One of my most important corporate antitrust clients is Panasonic, which was formerly known as Matsushita. The first case I was involved with for Panasonic was the Matsushita v. Zenith case, which

went to the Supreme Court. The entire Japanese electronics industry was being unfairly attacked by a couple of domestic companies with massive antitrust conspiracy claims because they were more efficient and charging a lower price to consumers for quality products than the domestic companies. It was a perversion of antitrust principles that the domestic companies were asserting claims because, at the time, they couldn’t effectively compete, as being a superior competitor is neither an antitrust violation nor a bad thing for consumers. It’s actually what antitrust laws encourage. Yet this case went on for 16 years all the way to the Supreme Court and back. It was one of the first big antitrust cases I worked on and it helped establish an important precedent, which is still very influential in antitrust cases today. The Supreme Court issued three very important summary judgment opinions in 1986 and Matsushita v. Zenith was one of them. The three cases together collectively established that summary judgment was appropriate in complex cases, including antitrust, where the plaintiff failed to come forward with admissible and significant probative evidence in support of the claims. The claim against Matsushita and the other defendants - that they were lowering their U.S. prices from what they charged in Japan – was really the opposite of an antitrust claim. The Supreme Court’s willingness to dismiss that claim on summary judgment became not only an important ruling for Matsushita and the other Japanese defendants, but also greatly benefitted the consumers who reaped the rewards of that competition. LD: What is the lasting impact of your sports work? JK: A lot of my core work in the sports area has been bringing competition principles into that area. Many of the cases I have been involved with have tried to overcome the idea that somehow sports is not really a business, that sports really isn’t subject to the normal antitrust rules. This is why my antitrust work became the vehicle that brought me into sports cases even though my sports work has, over the years, become more diverse. Antitrust was the core principle that I have fought for in the sports area. History has proved that the more courts have applied antitrust principles to the multi-billion dollar sports business, the more those sports have benefitted, the more players have done better, the more teams and fans and sponsors have done better. Read the full Q&A at www.lawdragon.com/lawyer-limelight-jeffrey kessler.

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Christopher Lometti and Joel Laitman name name FIRM FIRM FIRM (CITY)

COHEN MILSTEIN (NEW YORK)


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JOEL LAITMAN AND CHRISTOPHER LOMETTI AFTER THE FINANCIAL CRISIS, THE LOSS

of trillions of dollars in wealth in such a short period of time had left much of the world stunned. But lawyers who represent investors had little time to waste if they wanted any chance of recouping losses for their clients. In this challenging and complex effort, many institutional investors were happy to have Joel Laitman and Christopher Lometti on their side. The New York-based partners at Cohen Milstein Sellers & Toll have played lead roles in several of the most significant mortgage-backed securities (MBS) class actions, netting more than $1 billion in settlements so far. Lawdragon: How did you get these cases going? Joel Laitman: I often think about that question because the answer reminds me that while success requires hard work it also often happens because of timing – which we generally have no control over. For several years prior to the commencement of the MBS cases we had been prosecuting two class cases as sole lead counsel – Dynex and Bombardier. Both cases alleged securities fraud claims on behalf of investors against issuers of bonds collateralized by mobile-home loans. These bonds were virtually identical to MBS except, instead of investors getting paid from pools of residential mortgages, they were paid from pools of mobile-home loans. So, essentially, when the financial crisis hit and we saw the enormous damages sustained by our pension fund clients from their MBS investments, we were already quite familiar with these kinds of financial products. LD: What were some early challenges you faced? Chris Lometti: Two principal strategies were employed in an effort to defeat the MBS cases. First, defendants argued that the bonds were bought primarily by funds and other investment banks who knew the risks involved. Judge Baer accepted this argument in both the RALI and Harborview cases, and initially denied class certification. However, following an appeal to the 2nd Circuit and the presentation of evidence demonstrating that no investor – no matter how sophisticated – ever saw the adverse results of the underwriter banks’ re-underwriting of sample offering loans just before the offering, Judge Baer reversed himself, finding that all investors had been kept in the dark and certifying the two MBS classes. The RALI case ultimately settled for $335 million and Harborview for $275 million.

PHOTO BY: LAURA BARISONZI

BY JOHN RYAN

JL: The second defense strategy was to attempt to cut the scope of the classes to either just a limited number of tranches in a single offering or a limited number of offerings emanating from a common registration statement. The argument was that even though the tranches and offerings were sold by the same defendants, there was insufficient standing or commonality to include them in a single case or class. The law was unsettled in both areas, but was ultimately resolved mainly in favor of investors as courts became more familiar with the products and the MBS process. LD: How do you litigate over several years? CL: Basically, you have to have the ability to shoulder setbacks and devise strategies to overcome them. In the MBS context, this meant going to the 2nd Circuit three times. In RALI and Harborview, we went up to reverse the denial of class certification; in Novastar, we went up to reverse the district court’s dismissal of the case; and in Lehman, we went up to reverse the dismissal of the claims asserted against the rating agencies. This willingness and ability to appeal adverse rulings – which requires years of additional work – is possible only if you have a very deep belief in the underlying validity of your clients’ claims. JL: Our teams consisted of an extremely talented group of partners and associates as well as numerous contract lawyers hired to assist with the review of millions of pages of documents. Still, Chris and I were very hands on. I took the lead role in arguing motions, conducting hearings and taking critical depositions in RALI, Harborivew, HEMT, Lehman and Novastar. Chris was central to and active in all these cases, as well as being central to the prosecution of the Countrywide, Bear Stearns and Washington Mutual cases. LD: What lies ahead for the practice? CL: The MBS cases that we filed – all of which were based on Securities Act violations – are winding down. While there are still some cases based on contractual put-back claims and some governmental cases that are still being litigated, it’s safe to say that the bulk of the MBS cases that were filed have been resolved. JL: Beyond that, it’s hard to say with certainty, but one thing we both know: greed is unfortunately part of the human condition, and so it’s only a matter of time before another scam rears its head. Read the full Q&A at www.lawdragon.com/2016/09/12/lawyerlimelight-joel-laitman-christopher-lometti.

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Patty Glaser GLASER WEIL (LOS ANGELES)

name name FIRM FIRM FIRM (CITY)


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PATTY GLASER A DECISION TO COME OUT WEST FOR THE

first time in her life for a federal clerkship brought Patty Glaser into the Los Angeles legal scene of the 1970s. Glaser found what she calls a “meritocracy” in which she learned from great lawyers and ascended to the top of profession, becoming one of the nation’s most successful and best-known trial attorneys. Her life feels a bit like the Hollywood stories that brought her fame. A native of Charleston, W.V., she clerked for Judge David Williams, who was the first African-American federal judge west of the Mississippi. She joined the iconic Century City firm Wyman Bautzer and then was a founder of what is today Glaser Weil, where she catapulted to fame suing Kim Basinger for backing out of the film “Boxing Helena.” Since that star turn, she’s become the go-to litigator in L.A. for business litigation, as well as Hollywood, representing Miley Cyrus, Conan O’Brien and Paula Deen, among many, many others. She was the longtime attorney to Kirk Kerkorian, who left her $6 million when he passed away in 2015. She met her husband, a former safety for the Pittsburgh Steelers, as a friendly witness. A wonderful friend and a fearsome foe, she also is a passionate philanthropist, particularly for theater, the judiciary and the Jewish community. She has produced plays and is on the board of the Geffen Playhouse and Los Angeles Music Center Theater Group. She is a member of the Board of Trustees of the National Judicial College. And passionately supports The Hebrew University of Jerusalem. But practicing law is her true north. “If I weren’t a lawyer, I’d perish,” Glaser says. The Rutgers School of Law graduate is name partner and chair of the litigation department at Glaser Weil Fink Howard Avchen & Shapiro. Lawdragon: How did you first become interested in being a trial attorney focusing on complex litigation? Patty Glaser: After I graduated from law school, I clerked for David Williams, a U.S. District Court judge for the Central District of California. I found the complex matters I worked on during my clerkship to be fascinating and that really fueled my interest in pursuing a career as a trial attorney. LD: What do you like about it? What is professionally satisfying?

PHOTO BY: AMY CANTRELL

BY JOHN RYAN PG: I find being a trial attorney fulfilling in just about every way possible – intellectually and emotionally. Meeting the client’s needs is the top priority, though. Every day is interesting and comes with new challenges. I enjoy being presented with a variety of issues and problems. LD: What types of cases are keeping you busy these days? Are there trends you are seeing in your practice? PG: So many law firms have become a collection of partner “silos.” Happily, we have successfully avoided that. Every client of “mine” is genuinely a client of the firm and this is true of my partners’ clients as well. LD: Is there a specific reason why you chose Rutgers over another school? PG: It may have somewhat been a matter of luck, but for me, Rutgers was a really good fit. The legal education I received there was a mind opener and my analytical thinking improved dramatically as a result of having gone there. I’m much more logical, insightful and incisive due to what I learned and experienced those three years. LD: Do you have the type of practice you imagined yourself practicing while in law school? PG: It’s even better than anything I could have imagined, by multiples! LD: Why did you pursue a career in the law in the first place? PG: I like walking into dark rooms and finding doors – in other words, I love problem solving. LD: After American and Rutgers, what brought you out west? PG: I’d been out of the country a number of times by the time I graduated from law school, but I’d never traveled west of the Mississippi River domestically. I had applied for federal clerkships all over the country and was lucky enough to receive a few offers. One of these was in L.A. with Judge Williams and it was only a one-year commitment. I loved the fact that the legal world in L.A. in the early ‘70s was very much a meritocracy. It didn’t matter who your family was, what clubs you belonged to – anyone could be successful here and I believe that’s still largely true today.

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Diane Patrick

Kit Pierson

ROPES & GRAY BOSTON

COHEN MILSTEIN WASHINGTON, D.C.

Kathy Patrick

Debra Pole

GIBBS & BRUNS HOUSTON

SIDLEY LOS ANGELES

Harriet Pearson

Jonathan Polkes

HOGAN LOVELLS WASHINGTON, D.C.

WEIL GOTSHAL NEW YORK

Richard Pepperman

Karen Popp

SULLIVAN & CROMWELL NEW YORK

SIDLEY WASHINGTON, D.C.

Kim Peretti

Richard Posner

ALSTON & BIRD WASHINGTON, D.C.

7TH U.S. CIRCUIT COURT OF APPEALS CHICAGO

Elliot Peters

Benjamin Powell

KEKER & VAN NEST SAN FRANCISCO

WILMERHALE WASHINGTON, D.C.

Kathleen Flynn Peterson

Joe Power

ROBINS KAPLAN MINNEAPOLIS

POWER ROGERS & SMITH CHICAGO

Carter Phillips

Marvin Putnam

SIDLEY WASHINGTON, D.C.

LATHAM LOS ANGELES

Roberta Pichini

Steven Quattlebaum

FELDMAN SHEPHERD PHILADELPHIA

QUATTLEBAUM GROOMS LITTLE ROCK

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“I’M WORKING ALONGSIDE THE BEST ATTORNEYS I’VE EVER WORKED WITH AND IT MAKES MY PRACTICE THAT MUCH MORE ENJOYABLE. BECAUSE OF THE CALIBER OF OUR PARTNERS AND ASSOCIATES, THESE ADMINISTRATIVE DUTIES ARE FAR LESS ONEROUS AND I’M ABLE TO DEVOTE THE GREAT MAJORITY OF MY TIME TO TRIAL WORK INSTEAD.” LD: Was there an early experience or mentor who really helped shape the course of your professional life? PG: Yes – I was fortunate to have several terrific mentors. When I clerked for Judge Williams, I was able to observe Frank Rothman’s courtroom skills firsthand. After I joined his firm, Wyman Bautzer, I learned a great deal about trial preparation and trial practice by working with him closely on a number of matters that ended up being tried. Another partner in the firm, Greg Bautzer, showed me the huge importance of maintaining client relations – he was utterly devoted and loyal to his clients and I learned, among many other things, how critically important it is to respond to every client communication every day before leaving the office. My third mentor was Mariana Pfaelzer. She was a managing partner at the firm at a time when this was a real rarity. She showed me and many others that there are no limits on what a female attorney can achieve and made it much easier for women attorneys in my generation to succeed. LD: Can you share a lawyer you have come up against in a case that you admire, and why? PG: There are a number of attorneys that immediately come to mind: in Los Angeles, Marshall Grossman, Bob Mangels, Pierce O’Donnell, Bert Fields, Bill Shernoff and Glenn Pomerantz; in San Francisco, Paul Nelson. They are all consummate professionals and really terrific trial attorneys. LD: Do you have any special routines before or during a trial or appellate argument? PG: Absolutely. I have a number of special routines when I’m in trial. I drive to court the same way each day. I eat the same thing for lunch. I wear the same earrings for the duration of the trial. And I always refuse to comment on how the trial is going.

that much more enjoyable. Because of the caliber of our partners and associates, these administrative duties are far less onerous and I’m able to devote the great majority of my time to trial work instead. LD: What do you try to “sell” about your firm to potential clients – how is it unique? PG: The firm sells itself because of the high quality of our attorneys. Today clients aren’t interested in “law firms” but instead they’re interested in particular lawyers. Our firm is an easy sell because I’m blessed with wonderful colleagues. LD: How do you relax outside work? PG: First and foremost, I love to spend time with my husband and our two wonderful grandsons, who basically “own” me. We travel together as a family, which is wonderful. I also particularly enjoy contributing to the legitimate theatre community through my participation on boards of organizations such as the Center Theatre Group and the Geffen Playhouse. I attend theater productions whenever I can and, on occasion, have actually co-produced shows with some close friends. LD: Please tell us about some of your public interest and community involvement. PG: Absolutely. Among the other boards I serve on is that of the American Friends of the Hebrew University of Jerusalem, an organization I am really passionate about. I also try to support the work of Sharon Nazarian and the Younes & Soraya Nazarian Center for Israeli Studies at UCLA by serving on that board in its efforts to promote the study of Israel’s history, culture and society. LD: If you weren’t a lawyer, what would you be doing now professionally? PG: If I weren’t a lawyer, I’d perish.

LD: As chair of the litigation department, are there challenges you face in your current leadership role?

LD: Do you have a favorite book or movie about the law or justice system?

PG: Not really. I’m working alongside the best attorneys I’ve ever worked with and it makes my practice

PG: “To Kill a Mockingbird” is probably my all-time favorite.

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Robert Bingle CORBOY & DEMETRIO (CHICAGO)


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ROBERT BINGLE SERENDIPITY IS CAST IN THE LEAD

role when you ask Robert Bingle how he landed a coveted slot at the renowned Chicago-based plaintiffs’ firm of Corboy & Demetrio after earning his law degree at night. But those who know him say he should take more credit. With mentoring from legendary name partners Philip Corboy Sr. and Tom Demetrio, Bingle established himself as one of the region’s most prominent trial attorneys by adding to the firm’s astounding record of multimillion-dollar verdicts and settlements in personal injury and wrongful death cases. He has also more than left his mark with his compassionate advocacy for terribly injured clients and their families, many of whom have become his friends.

He started out after college, however, operating a punch press in a sign factory, before moving on to teaching. From there, he used his people skills in hospitality, but decided to give law school a try. He graduated in 1981 from Loyola University Chicago School of Law – which he attended while holding a full-time sales job. Bingle also has been the firm’s managing partner since 1995. Lawdragon: What led you to law school? Robert Bingle: My oldest brother, Bill Bingle, is a lawyer in Toledo, Ohio, and throughout undergraduate school I always had in the back of my mind the possibility of going to law school. Once I started working in the hotel industry, while I thoroughly enjoyed the experience, I continued to think about the idea of expanding my potential in the corporate world by getting a law degree. That led me to Loyola night school. LD: And how did you end up at Corboy & Demetrio? RB: In relation as to how I got a job on the plaintiff’s side, it was certainly somewhat serendipitous. Going to night law school and working as the Director of Sales of the Palmer House, a Hilton Hotel, was, to say the least, a challenging experience. I didn’t have a lot of time to participate in extracurricular activities going to law school; most of the time I was racing out of the hotel at 6:00 p.m., and taking the “L” up for class that would get out somewhere around 8 or 9. At some point in my tenure at the Palmer House, a young man approximately my age was hired and I undertook the role of his mentor. This individual

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BY JOHN RYAN became a very good friend and his family, I think, knew that I had taken a special interest in helping him. In any event, after I had graduated from law school and was about to take the bar and looking for a job in the legal industry, this young man mentioned to me that maybe his father and uncle could help me. I did not know that his father was Sydney J. Marovitz, who was the Former Park Commissioner of the City of Chicago ,and his uncle was Abraham Lincoln Marovitz, a revered and renowned Federal District Judge here in Chicago. After meeting Mr. Marovitz and Judge Marovitz, within three days I was sitting in front of Philip Corboy – and 34 years later I’m still here. LD: What about your practice and Corboy & Demetrio has kept you there for your whole career? RB: I have often thought that of all the areas of law that I could have gotten into, plaintiffs’ personal injury is really, I believe, one of the most intimate and personal areas of law that you can experience. Over my career, I have had the privilege of representing families, widows, children, and all assortment of individuals who were hurt. What I have enjoyed most about this practice is that it has not only allowed me to provide for my family, but also to satisfy some innate sense inside of me of helping other people in a time of need. LD: Was there a case early in your career where you feel you really cemented your skills as a trial lawyer or that convinced you that you could excel regularly in court? RB: Approximately four years into my career, I had the opportunity to work directly with Phil Corboy on a major case involving a young man who had his leg cut off in a railroad yard. I worked daily with Phil for more than half-a-year on every facet of this case. Phil was approaching the end of his trial career and for the first time ever he allowed another lawyer to give an opening statement. I can tell you I don’t know if I could ever describe how nervous I was when I stepped up to give an opening statement in that major case four years into my career with Phil Corboy sitting behind me. Fortunately, I was able to perform this statement in a good fashion, even receiving a compliment from my other mentor, Tom Demetrio. Read the full Q&A at www.lawdragon.com/2016/10/26/lawyer-

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JAMES CLARK FOR JIM CLARK, A CHANCE EXPERIENCE

as a courtroom witness sparked an interest in law school – which he decided to attend despite his family’s preference for him to pursue a medical career. He credits Cahill Gordon & Reindel for the flexibility that allowed him to shift from the litigation to the corporate side of the firm, where under the mentoring of partner Ike Kohn he began his long and successful deal-making career. The 1979 graduate of Albany Law School also praises the “throwback” style that has maintained more of a familial relationship between the partners at Cahill, where he sits on the Executive Committee. Among his major transactions in recent years, Clark represented NBCUniversal in the $7.75 billion acquisition of the 2022-32 U.S. broadcast rights for the Olympic Games. Lawdragon: How did you first become interested in having a high-end transactional practice? Jim Clark: Well, it certainly wasn’t what I had planned coming out of law school. I wanted to be a trial lawyer. That’s why I went to law school. I joined Cahill – one of the great litigation firms in the United States – after graduation and started doing litigation work. After six months of working on great cases, big and small, I came to a realization – although I loved the notion of being “at trial,” I did not enjoy all of the work that went into the preparation for trial, such as research, discovery, depositions, motions, etc. At many big New York firms that would have been a major problem but not at Cahill, where associates can decide what areas of law they want to work in and when they want to do it. So I asked a corporate associate who was down the hall from my office if I could work on a corporate deal with him. That afternoon, I was sitting in the boardroom of a corporate client with their CEO, CFO, two Cahill partners, the associate and me mapping out a strategy to save this company from bankruptcy. I was hooked! And here I am now 35 years later with a “high-end” transactional practice. LD: What do you like about it? JC: I am extremely lucky. I absolutely love my job and look forward to coming to work 99 out of 100 days. After all these years, I still enjoy learning about businesses and industries that I haven’t dealt with before. I also enjoy the problem-solving aspect of the job – in fact, I probably get five-to-ten calls a week from clients as well as lawyers from other firms asking

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BY JOHN RYAN my advice on matters that my firm is not involved in. LD: If you had to pick, what would you say is the most interesting matter you’ve worked on as a lawyer? JC: The most interesting “thing” for me, by far, has been my work over the years for NBC Sports negotiating the U.S. broadcast rights for 14 different Olympic Games. Those negotiations have taken me all over the world and have involved all sorts of complex and interesting issues. And it doesn’t hurt that I am a sports fanatic so the subject matter is exciting for me. But I have to say that the most interesting “time” for me as a lawyer was working with the people at Drexel Burnham in the late 1980s. I watched Mike Milken and his team “invent” the high-yield bond market, the financing of leveraged buyouts, “highly confident” letters and all the other things they pioneered. It was a whirlwind but I learned so much. I have never seen in my career more talent, work ethic and creativity in one organization than there was at Drexel. It was a very special place and it was a privilege to be able to play a small part in it. LD: What types of transactions are keeping you busy these days? JC: My practice has largely evolved over the years into a corporate transactional practice principally representing investment banks in securities offerings (called capital markets transactions by some people) and bank financings. These transactions are typically for non-investment grade rated companies which means that they pose many more issues and problems than would be the case for a blue-chip issuer/borrower. I also do a lot of work in the debt restructuring area, especially in the oil and gas industry recently. As I like to say, I know how to put them together as well as how to take them apart. LD: Why did you pursue a career in the law? JC: My family wanted me to become a doctor so I was a pre-med student in college but I didn’t really like it. In my junior year of college I was called as a witness in a trial involving a car accident. I was absolutely fascinated by the lawyer for the insurance company. He was very sharp and great at crossexamining witnesses. And I was told his fee was one thousand dollars a day! I wanted to do what he did, so I applied to law school.

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David Rievman

QUINN EMANUEL LOS ANGELES

SKADDEN NEW YORK

Gordon Rather

David Ring

WRIGHT LINDSEY LITTLE ROCK, ARK.

TAYLOR & RING LOS ANGELES

Noelle Reed

Darren Robbins

SKADDEN HOUSTON

ROBBINS GELLER SAN DIEGO

Tom Reid

John Roberts

DAVIS POLK NEW YORK

U.S. SUPREME COURT WASHINGTON, D.C.

William T. Reid IV

Graham Robinson

REID COLLINS & TSAI AUSTIN, TEXAS / NEW YORK

SKADDEN BOSTON

Lorin Reisner

Stephen Robinson

PAUL WEISS NEW YORK

SKADDEN NEW YORK

Alison Ressler

Cristina Rodriguez

SULLIVAN & CROMWELL LOS ANGELES

YALE LAW SCHOOL NEW HAVEN, CONN.

Ekwan Rhow

Pete Romatowski

BIRD MARELLA LOS ANGELES

JONES DAY WASHINGTON, D.C.

Joe Rice

Anthony Romero

MOTLEY RICE MT. PLEASANT, S.C.

ACLU NEW YORK

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“IF YOU ARE LUCKY ENOUGH TO GET A JOB OFFER AT ONE OR MORE OF THE BIG NEW YORK FIRMS, TAKE IT. AFTER THREE OR FOUR YEARS OF WORKING THERE, YOU WILL HAVE BEEN TRAINED TO RUN DEALS OR CASES AND HAVE A SENSE OF SELF-CONFIDENCE THAT WILL STAY WITH YOU FOR THE REST OF YOUR LIFE.” LD: Why did you choose Albany Law School? JC: I was the oldest of five boys and was the first one in my family to go to college. My parents and grandparents begged me not to go to law school. As I said, they wanted me to become a doctor. I was accepted into a number of schools but chose Albany because my brother was going to nearby Siena College and I wanted to be close to him. I had absolutely no idea at the time that there were big differences among law schools and the impact it could have on the ability to get a job. Had I known that at the time, I probably would have gone somewhere else. And who knows how that would have turned out for me. LD: Is there a professor that stands out as being key for your career? JC: I was fortunate to end up doing very well at Albany and became editor-in-chief of the Law Review. I had a number of job offers from big New York firms but I was interested at that time in moving to Arizona or Southern California, where I also had offers, to escape the Northeast winters – which I still want to do actually. But one of my professors, Frank Wallace, gave me tremendous advice. He told me to go to New York, get the training that these big firms give you, and after a couple of years if I still wanted to move to warmer climates there would be any number of firms who would take me. It was great advice. Unfortunately (or fortunately) for me, I got hooked on the practice here at Cahill so here I am 35 years later still wishing I could do this job in a warmer climate, but I can’t. LD: Do you have advice for current law students? JC: I think that many law students are reluctant to come to big firms in New York City. They may not like the weather, the lifestyle or the long hours often required at these firms. However, I still to this day pass on the advice I received from Frank Wallace. If you are lucky enough to get a job offer at one or more of the big New York firms, take it. After three

or four years of working there, you will have been trained to run deals or cases and have a sense of self-confidence that will stay with you for the rest of your life. Lawyers with that training are in high demand everywhere – both in law and in business – so you will have opened many doors to continue your career even if you decide that the big firm life is not for you. And this advice is coming from someone who really is not a big fan of New York City! LD: Was there an early experience or mentor at Cahill who really helped shape the course of your professional life? JC: I was extremely lucky that Ike Kohn, who was a senior partner at Cahill, took me under his wing when I was a third-year associate. He was a brilliant lawyer and rainmaker and he taught me almost everything I know about the practice and business of law. I will forever be grateful to him for that. Ike did not believe that lawyers should seek or get publicity but rather do their jobs and stay in the background. He definitely would not approve of me doing this interview! LD: Out of all the deals you’ve worked on, is there one that stands out as a “favorite” or that is particularly memorable? JC: Without a doubt, it was my first Olympic television rights deal for NBC. It was 1986, NBC was Ike Kohn’s client and they wanted Cahill to represent them in the negotiation for the TV rights to the Olympic Games to be held in Seoul, Korea in 1988. NBC had done a prior Olympics deal for the Moscow Olympics in 1980 using in-house counsel, and it did not turn out well for them in the end, but that’s a whole other story. So I was a sixth-year associate and Ike asked me to do the deal, in part because he knew I was a sports fanatic. The prior Olympic broadcast deals were done via a three- or four-page letter agreement between the International Olympic Committee (known as the

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Kathryn Ruemmler

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LATHAM WASHINGTON, D.C.

Joshua Rosenkranz

Miles Ruthberg

ORRICK NEW YORK

LATHAM NEW YORK

Hannah Ross

Antony Ryan

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Faiza Saeed

WEIL GOTSHAL REDWOOD SHORES, CALIF.

CRAVATH NEW YORK

Neal Roth

Kelli Sager

GROSSMAN ROTH CORAL GABLES, FLA.

DAVIS WRIGHT LOS ANGELES

Joel Rubinstein

Hollis Salzman

WINSTON & STRAWN NEW YORK

ROBINS KAPLAN NEW YORK

Charles Ruck

Susan Saltzstein

LATHAM COSTA MESA, CALIF.

SKADDEN NEW YORK

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IOC) and the network that was televising the Games that did not say much other than the price. I was charged with transforming that letter agreement into a 100-plus-page contract that contained provisions for everything from what time events would be held to maximize primetime viewers, where NBC could put their cameras and what happens if North Korea comes across the border in the middle of the Games. After a brutal eight months of negotiations we finally agreed on the long-form version of the contract and to this day that form serves as the template for Olympics television contracts in the U.S. Arthur Watson, who was the then-President of NBC Sports (Dick Ebersol succeeded him a few years later), took a real liking to me during the deal negotiations and taught me about the network television sports business. I also made many friends at NBC that opened up other doors for me within my practice and my personal life. Gary Zenkel, who used to work for me at Cahill, went up to NBC Sports after a few years of practicing law and eventually became, and still is, the President of the NBC Olympics unit. LD: Is there a lawyer you have come up against in your career who stands out? JC: I have had the privilege of working across the table from many talented lawyers in my career but the one that stands out to this day is Don Petroni from O’Melveny & Myers in Los Angeles. Don, who retired some years ago, was a senior partner at O’Melveny and represented the IOC and the Seoul Olympic Committee in the 1986 Olympic contract negotiations. Don had a style that was unique. He was a great lawyer and negotiator but always honest and fair. He also knew how to lose his temper every so often to keep you on your toes. I have tried to emulate his style in my practice and, although I could never be as good as he was, I think that style has served me well. LD: As a member of the Executive Committee at Cahill, are there challenges you face in your current leadership role? JC: The business of law has become increasingly competitive during my career and especially in the last few years. One thing we are focusing on is developing our next generation of leaders and rainmakers. In today’s world, where virtually everything is done via e-mail and conference calls, it has become more and more difficult for the current generation to actually meet the people working on deals and build personal relationships with clients. That is something

that we have been stressing to our younger partners. Also, the quality of the work is extremely important. My motto is “you are only as good as your last deal.” We try to remind people that keeping the quality of work at the highest level is of upmost importance. LD: Can you share some strategic plans from your firm for the coming months or years? JC: Well, Cahill is a bit of a throwback firm. Very few lateral partners (90 percent of our partners came to us as associates from law school or shortly thereafter) and very few partner defections. There are not many firms left that can still say that. We have resisted the model employed by most of our competitors to have offices in multiple cities around the world and numerous lateral partners, which also corresponds to numerous partner defections. Cahill has three offices – New York, Washington D.C. and London – and a real feeling of “family” among its partners. Ike Kohn, whom I talked about earlier, was the Chairman of the firm for 20 years and he had very strong views of what a law firm partnership should be. Once Ike retired, he chose Bill Hartnett to be his successor and Bill has done a tremendous job in the 10 years he has been Chairman. He has stayed true to the Cahill model while at the same time growing our practice in select areas, such as corporate investigations and white-collar crime. I think that approach is working extremely well for us and is the one we will stay with for the foreseeable future. Bill and I started at Cahill at the same time and have been very good friends since day one. He and I are similar in a lot of ways except he has way more patience than I do. LD: There are many high-quality firms out there. What do you do to try to “sell” Cahill Gordon to recruits? JC: The interesting thing about Cahill is that you can choose what you want to work on and, more importantly, whom you want to work with. There are very few firms that let you do that. What attracted me to Cahill 35 years ago is still true today – great work, close-knit partnership, people who are go-getters and a real freedom to shape your own career. One of our favorite sayings here is that “we don’t have very many titles or many rules.” So if these are the things you are looking for (and not everyone is), Cahill is the place for you. I have had many fortunate things happen to me in my life, but coming to Cahill has to be near the top of that list.

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Steven J. Lane HERMAN HERMAN (NEW ORLEANS)

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STEVEN J. LANE IF THERE IS A LAWYER WHO KNOWS

how to handle a crisis, it’s Herman Herman & Katz managing partner Steven J. Lane. Not only has he managed New Orleans’ preeminent plaintiff firm since Hurricane Katrina hit, he also excels as a familylaw attorney. As managing partner, he makes the trains run for a firm that has taken on massively complex and heartwrenching cases, helping victims of Hurricane Katrina, the BP oil disaster, and bad Chinese drywall installed in homes damaged by the storms. As a family lawyer, he is called on to help New Orleans’ elite in affairs of the heart. Most often, that means the broken heart – and the broken-hearted do crazy things. From drugged margaritas, to an enraged grandpa with a hammer and disputes over – what else, beloved pets - Lane has really seen it all. Lawdragon: Can you tell me a bit about how you decided to become a lawyer? Steven Lane: I wanted to become a lawyer because I thought it was a very honorable and prestigious profession. It is an honor to be a lawyer. And it’s very unfortunate that lawyers have the negative reputation they do because for the most part the vast majority of lawyers are out there doing everything they can to assist the public, doing pro bono work, doing volunteer work. All you read about in the paper are partial facts about cases that people make fun of, like the McDonald’s coffee case, and they blame lawyers. Or they see large awards and attorneys getting large fees. And they don’t realize the attorneys have gone out and borrowed millions of dollars and have worked tens of thousands of hours without getting paid. LD: How did you end up joining Herman Herman and then becoming a family lawyer? SL: Well, that’s a good story. While I was attending Loyola Law School, I was Russ Herman’s law clerk. He had all these high-profile divorce cases. People would come to him to handle the divorce cases and he hated those cases. After a few years of working on these cases together, he said, “When divorces come in, I’ll do the interview, you do the work”. And within about five years I was handling them all myself. I had become his clerk because his sister, Shelly, was my law school classmate. I had zero intention of

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BY KATRINA DEWEY staying in Louisiana, and planned to go back to New York. All I took was common law property courses, no Louisiana civil code courses. But in my third year, I decided I was going to stay in New Orleans. Russ’ sister said, “Why don’t we study for the bar together?” So I’d study for the bar at Russ’ parents’ house, and his dad, Mr. Harry, would be there in another room. He heard us studying and knew I was looking for a clerking job. I didn’t know it, but Mr. Harry told Shelly to tell Russ to hire me because he was sure I wouldn’t be passing the bar anytime soon. LD: Being managing partner of a plaintiff law firm is so difficult. Can you talk about some of the challenges, and what happened to the firm when Hurricane Katrina hit? Your offices are right by the Superdome. SL: I had been doing half class actions and half domestic, but they asked me to become managing partner a few years before Katrina hit. I had to stop the class-action work – there’s so much travel – and use that half of my time to manage the firm. As managing partner, I make the personnel decisions in terms of hiring and firing, handle the financial matters with the firm’s CPA, lines of credit, bonuses, raises, partnership distributions, and insurance issues. Whenever anyone has a problem, they come to me. When Katrina hit, the whole inside of our building was destroyed. So we had to move, to Houston, Florida and to the North Shore of Lake Pontchartrain. By January 2006, the building was redone and we moved back. We needed a new air system, built more conference rooms, and upstairs offices. Most of our records were intact, and whatever was on our computer system was in Atlanta. We were in the midst of the Vioxx trials, which got moved to Houston. We didn’t miss a beat in terms of any of our MDLs, though of course our courts were closed so you had to travel to wherever they were transferred. Some judges went to little small towns near Baton Rouge and you’d go see the judge and their staff in a hut to try your case. Almost every judge in Orleans parish lost their homes. LD: Can you talk a bit more about the impact you saw on the New Orleans legal community after Katrina? SL: Once people left, a lot didn’t come back. For family law, that meant many disputes where a parent wanted to relocate and the other parent objected.

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Frank Schreck

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John Savarese

Rodd Schreiber

WACHTELL LIPTON NEW YORK

SKADDEN CHICAGO

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David Schulz

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LEVINE SULLIVAN NEW YORK

Eric Schiele

Robert Schumer

CRAVATH NEW YORK

PAUL WEISS NEW YORK

Jonathan Schiller

Ronald Schutz

BOIES SCHILLER NEW YORK

ROBINS KAPLAN MINNEAPOLIS

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Christian Searcy

SKADDEN WASHINGTON, D.C.

SEARCY DENNY WEST PALM BEACH, FLA.

Allison Schneirov

Chris Seeger

SKADDEN NEW YORK

SEEGER WEISS NEW YORK

Paul Schnell

Philippe Selendy

SKADDEN NEW YORK

QUINN EMANUEL NEW YORK

George Schoen

Joseph Sellers

CRAVATH NEW YORK

COHEN MILSTEIN WASHINGTON, D.C.

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There was also a substantial increase in the number of divorces. People who had been on the edge – “should I stay married, get divorced?” – once Katrina happened they went over the line and couldn’t take it anymore. We also saw a lot of law firms that didn’t make it. Many firms that had been in business for years ended or broke up. Many personal injury firms or others who relied on a certain segment of the New Orleans population as clients, once it was wiped out in the 9th Ward, a third of the population up and left and they were a large portion of what these smaller PI firms relied on. But if you work at McDonald’s in New Orleans, you can work at McDonald’s anywhere. You can’t have a car accident if no one is living there. We were lucky at the firm because we were so diversified in terms of what we did – it wasn’t all personal injury or domestic. We also had Vioxx going and several seven-to-ten figure civil cases that settled right before or after Katrina and gave us the money to keep going. We try to do whatever we can so that people have an accurate view of the benefit that lawyers have on society. When recent floods came through and hit Baton Rouge, we went out and solicited donations of school supplies from around the country. We filled a conference room with boxes and boxes of pencils, notebooks, backpacks, household supplies, canned food, and then we coordinated with the Governor’s wife, who’s a teacher, to make sure all these items got out to the public that needed them. What’s funny is we were getting shipments every day from Fed Ex and the truck driver making the delivery said, “When I saw all these boxes, I thought I was making a delivery to a warehouse.” We just do what we do knowing it’s helping someone and that’s the reward. Not whether we got a case from or made money from it, it was just the right thing to do. Because of our contacts throughout the country, through the Louisiana Association for Justice and the American Association for Justice, lawyers came and made these donations. Lawyers helping lawyers to help other people helped tens of thousands of people. LD: You also represented the ACLU in its litigation against your prior governor, Bobby Jindal, over marriage equality. Hos did that come about? SL: My daughter went to school with the daughter of Marjorie Esman, the executive director of the ACLU in Louisiana. Ms. Esman contacted me to challenge the Governor’s executive order, which basically allowed state workers not to penalize businesses or

individuals who discriminated against gay couples seeking to get married. Jindal issued that executive order minutes after the legislature voted it down. I went to our partners and they all immediately said, “We need to help.” That’s what we do – we protect people in the minority who are getting bullied. We ended up filing suit against the Governor to undo his executive order as unconstitutional. The Governor filed an exception that we had no cause of action, which was denied. When the election for the new Governor took place, any executive order rendered by the outgoing governor is automatically undone if nobody takes any action to keep it alive. The new Governor let Jindal’s order lapse. Essentially, the suit went away by itself, and we prevailed. What’s interesting is within the last several weeks the new Governor, John Bel Edwards, has been in a fight with the new AG, who has been rejecting proposed state contracts in which the Governor insists on language concerning sexual and marital equality. There’s a fight going on now, so this may rear its ugly head again. LD: What are you working on now? SL: I can’t really talk about most of my family law cases, because it’s people’s private lives. I can talk about a big case I’m working on with Russ right now involving the most valuable property in the city, the World Trade Center, which our client is trying to turn into a Four Seasons hotel. We represent Carpenter & Company Inc. and Woodward Interests LLC. Another bidder, who lost in the bidding process, is trying to hold up the hotel. It’s a really nasty case, and it got personal. The judge told us to file for sanctions against our opponent. We did and were awarded $60,000 on one motion, and another is pending. Folks have been trying to put this property to use for the past ten or 15 years. Russ and I have represented the last three prospective owners and every time the city thinks it’s found someone, there’s another reason the deal falls through. But this developer has some great backers and we’d love to have it built for our tricentennial, in 2018. It would be a real feather in the cap of the city and a huge economic boost. LD: How long will you continue as managing partner? SL: President Obama and I are going out at the same time. It’s been 15 years. Brian Katz and Steve Herman are going to split up the responsibilities of managing partner. Maybe I’ll have more time to practice my tennis. I may even break down and get a dog.

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CYNTHIA ARATO AND ALEXANDRA SHAPIRO KEEPING UP WITH LAW SCHOOL

classmates can pay dividends in ways you can’t always predict. Columbia Law ’91 graduates Alexandra A.E. Shapiro and Cynthia S. Arato were not close friends as students, but the occasional hangout while partners at different firms led to a realization that perhaps they should form their own litigation boutique. That happened in January 2009. Shapiro, a former federal prosecutor in Manhattan who left Latham & Watkins, handles a mix of civil and criminal work, with an impressive record of obtaining reversals of criminal convictions on appeal. Arato, who left Gibson Dunn, specializes in intellectual property litigation for both companies and individuals in the entertainment and media arenas, as well as in other industries. Their practices complement each other, not least because each likes to dabble in law outside their own substantive focus and collaborate on case preparation. They expect Shapiro Arato to expand its range of litigation work in the years ahead. Lawdragon: I assume your relationship started at law school. How did you stay in touch over the years and develop the idea of possibly starting your own firm? Alexandra A.E. Shapiro: We crossed paths in law school but didn’t connect again until many years later when we were both partners at large firms. We began having occasional lunches and sharing information about our careers and experiences. I was approached by one of our firm’s original founding partners about starting a boutique litigation firm and became seriously interested when I learned that Cynthia was involved. As we discussed starting our own firm, it became clear that we shared the same goals and sensibilities. Cynthia S. Arato: Alexandra and I had mutual friends while at Columbia Law School, and they kept me up to date on her career moves. We reconnected after I moved back to New York and we were both in private practice. We made a point to meet for lunch from time to time, and we would talk about our longterm goals. We didn’t talk specifically about starting a small firm, but once I began thinking about doing that, Alexandra was a natural fit. LD: Can each of your share a key motivating factor in making the move when you did?

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BY JOHN RYAN

CSA: I had reached a point at Gibson Dunn where my billing rate was beginning to limit my ability to attract and retain clients in the entertainment industry. It didn’t make sense for a lot of artists and entertainment companies to hire a partner from a large law firm to handle many of their matters. I had a great experience at Gibson, but I have always enjoyed working with artists and entertainment clients and wanted to have the flexibility to accommodate their needs. AAES: I also found myself constrained by the realities of working at a big law firm. Latham & Watkins’ popularity with large institutional clients meant that I sometimes missed out on opportunities to represent individuals, especially with respect to white collar and appellate work. I was also closing in on a decade of practice in a large law firm environment and was ready to take the next step towards a new challenge. I felt it was time to chart my own course and focus on the work that most appealed to me. LD: Looking back over the seven years, is there anything about the process that has surprised you? Or is there one piece of advice that you definitely would give anyone considering launching a boutique? AAES: All things considered we had a very smooth start. We were busy with client work from day one. That was challenging because it took some time to hire qualified associates, and we had to make do with temporary attorney assistance for several months. Also, we had to balance our client work with setting up an IT framework, accounting systems, and employee benefit plans and the like. I would say that it is important for anyone launching their own firm to do as much of that legwork in advance as possible, including identifying reliable vendors. CSA: I had spent most of career at boutique law firms, so I didn’t have any surprises. I had a number of cases for long-standing clients in the music industry that I continued to handle when we opened our doors and that helped give us stability from day one. I would advise anyone who can to start with an anchor client or two. Our first hire was a part-time office manager and not an associate. That allowed us to focus more of our energies on building our practices and on our cases. It was more valuable to have help with all of the non-legal work, which is especially heavy when you are starting a new firm, than it was to hire lawyers.

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Bruce Sewell

Jerry Silk

APPLE CUPERTINO, CA

BERNSTEIN LITOWITZ NEW YORK

Karen Patton Seymour

Stuart Singer

SULLIVAN & CROMWELL NEW YORK

BOIES SCHILLER FT. LAUDERDALE, FLA.

Kannon Shanmugam

Pankaj Sinha

WILLIAMS & CONNOLLY WASHINGTON, D.C.

SKADDEN WASHINGTON, D.C.

Alexandra Shapiro

Rachel Skaistis

SHAPIRO ARATO NEW YORK

CRAVATH NEW YORK

Joseph Shenker

Daniel Slifkin

SULLIVAN & CROMWELL NEW YORK

CRAVATH NEW YORK

Leopold Sher

Brad Smith

SHER GARNER NEW ORLEANS

MICROSOFT REDMOND, WASH.

Jonathan Sherman

Leslie Smith

BOIES SCHILLER WASHINGTON, D.C.

KIRKLAND & ELLIS CHICAGO

Paul Shim

Paul Smith

CLEARY GOTTLIEB NEW YORK

JENNER & BLOCK WASHINGTON, D.C.

Roman Silberfeld

Todd Smith

ROBINS KAPLAN LOS ANGELES

POWER ROGERS & SMITH CHICAGO

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LD: As anyone who has run a small business knows, hiring the wrong person can cause a number of problems and waste a lot of time. What have you looked for in lawyers and other staff that have joined the firm? AAES: Hiring exceptional talent is essential when working with a small team. Beyond the obvious like analytical abilities and strong writing skills, we look for people who take ownership of their work, since our matters are staffed leanly without the buffer of layers of lawyers. Clerkship experience is also invaluable, even though it sometimes means that it takes longer than we would like before an associate can start. We find it is worth the wait. CSA: It is important to hire people who want to work in a small firm environment. People who prefer working on large teams or are drawn to the amenities of a BigLaw firm – like a dedicated, 24-hour word processing department – may not be the best fit. But self-starters who relish taking the lead on projects early on tend to be happier and their talents will shine. LD: You have different types of litigation practices. Does the mix of work the firm handles always flow from each of your core areas? Have you expanded to, or have you thought about expanding to, a different type of litigation area that you do not typically focus on? CSA: A lot of my work is in my sweet spot of intellectual property litigation for media and entertainment clients. That work has expanded to include non-IP work for these same clients, as well as IP work for clients in other industries, including banks and technology start-ups. Both Alexandra and I think of ourselves as litigators first, and subject matter specialists second, so we both relish working on complex matters, including outside our core areas of expertise. I recently handled a matter involving the intricacies of federal drug testing laws and Alexandra has been spearheading a challenge to the Federal Election Commission’s rules regarding the presidential election debates. AAES: Because of my appellate expertise I am most often retained when another firm has lost at trial, but I also handle investigations and complex civil and criminal litigation at the trial court level. Going forward we would like to take on even more of those commercial matters, especially in the financial arena, as well as more white-collar work. Also, we have recently been doing more Supreme Court work

and hope to expand our Supreme Court practice going forward. LD: Given that you work on different types of cases, do you still collaborate? Are there ways in which you work together on litigation aside from management issues? CSA: We have expertise in different substantive areas and that was one of the key factors in our choice to partner in this venture. We respect each other’s instincts and intellect. We often pop into the other’s office to talk about case strategy or a particularly thorny issue. Alexandra and I moot each other for our appellate arguments. And we each have taken the lead in select issues in the other’s cases. I recently helped negotiate a trademark license for one of Alexandra’s clients, and she advised some of my clients when they received subpoenas in government investigations. LD: Can you discuss your fee arrangements when talking work and what role this played in building the practice? AAES: Our fee arrangements vary according to the needs of our clients, from hourly billing to contingency arrangements to alternate fees. Tailoring our rates has allowed us to set our own agenda and build a practice around cases that are cutting edge and of interest to us on the merits. We have no rigid fee structures that would limit our ability to pursue the work that we find most rewarding. LD: You’ve both worked on some high-profile matters recently. What will be keeping you busy in the year ahead? AAES: In October, I will be arguing before the U.S. Supreme Court in U.S. v. Salman, which raises an important question on the scope of insider-trading liability. In addition, I am representing Dean Skelos, the former New York State Senate Majority Leader, in his pending 2nd Circuit appeal of his conviction on federal public corruption charges. Also, the second phase of my work as independent consultant for the New York Stock Exchange pursuant to an appointment arising from an SEC settlement is just beginning. CSA: I am working on an infringement case regarding the novel issue about the depiction of graffiti art located on public city streets. I am also continuing to oversee international litigation for the J.D. Salinger Literary Trust and we anticipate a trial in 2017 regarding copyright protection abroad for works that have entered the public domain in the United States.

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Michael Kelly WALKUP MELODIA (SAN FRANCISCO)


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MICHAEL KELLY KNOWING THAT HE WANTED TO MAKE

the world a better place, Michael Kelly saw three career options when he was young – physician, minister or attorney. Four decades into a stellar legal career, it’s safe to say that Kelly made the right choice. His interest in “social justice and righting wrongs” is reflected in the countless claims he has brought for injured plaintiffs, which have resulted in more than 175 verdicts and settlements worth in excess of $1 million. The San Francisco-born Kelly, a name partner at Walkup Melodia Kelly & Schoenberger, stayed in his home city for law school at Hastings College of the Law and also for his career. Lawdragon: What do you find satisfying about representing plaintiffs? Michael Kelly: Probably the most satisfying thing about my work is the opportunity to help people who genuinely need assistance with surviving an injury, illness or disability for which they were unprepared – or for which their resources were overwhelmed. Whether that is replacing an income for a surviving spouse that was financially dependent upon his or her partner before death, helping to recover the funds necessary to pay for physical or cognitive rehabilitation for a child or adult who has sustained a traumatic brain injury, or restoring mobility or selfesteem to an amputee or spinal cord injury patient, these are the things that make our work fulfilling, satisfying and sustaining. LD: What would you say is the most interesting thing you’ve done as a lawyer? MK: I’ve been blessed to have opportunities to litigate and try cases involving everything from car crashes to dangerous drugs and devices, defective consumer products, aviation crashes, public transportation disasters and mass torts. I’ve also had the opportunity to give back to the profession by teaching at the University of California Hastings College of the Law, and by representing the National Institute of Trial Advocacy in its various course offerings across the United States, in Eastern Europe, South America, the UK and Japan. Maybe the most interesting thing I’ve done as a lawyer was undertaking to train Japanese lawyers in how to conduct jury trials with the adoption of the Saiban In modified jury trial laws in Japan in the early 2000s. Since World War II, the Japanese had

PHOTO BY: GREGORY COWLEY

BY JOHN RYAN modeled their criminal cases on the uniform code of military justice, which had been put in place by Gen. Douglas MacArthur. In that system a panel of three judges decided all cases. The Saiban In system added six civilian “judges” to the panel in every case. Japanese lawyers had nowhere to turn for training in how to conduct U.S.-style adversarial oral advocacy to a panel of laypersons. I was privileged to make multiple trips to Japan, at the invitation of the Federation of Japanese Bar Associations, to develop and conduct litigation training for the Japanese bar. LD: What cases are keeping you busy these days? MK: My time these days is focused on litigating a construction defect tragedy that occurred in Berkeley, Calif., in June of 2015, in which seven visiting college students from Ireland were injured and six were killed when a balcony collapsed due to poor construction and maintenance practices. Each of the injured students was a remarkable and spectacular human being who came here as part of the J1 visa program. They were faultless in the deck failure. The event is a national tragedy in Ireland. I’m working with a number of experts in the fields of code compliance, architecture, building engineering, waterproofing and other trades. The building was relatively new, and the structural failure has brought about a call for improved code requirements as well as ongoing inspections for exterior residential decks. This was an entirely avoidable event, and my clients are driven to make certain that nothing like this ever happens again. LD: What trends are you seeing in your practice? MK: We seem to see more and more consumer product cases being forced into the federal multidistrict litigation (MDL) process. From my perspective, that is not a good thing. Historically, individual state courts have done an excellent job of providing a forum for trying single-plaintiff product liability suits. The individual states have an interest in protecting their citizens from dangerous and defective household products, automobiles, drugs and medical devices; and case-by-case deposition and document discovery in state courts has proved to be an effective way for finding and proving the truth and making our society safer. The ability of large corporations to remove cases to federal court and have them consolidated before a

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500 single federal judge, delaying justice for all those plaintiffs who must wait until “bellwether” litigation takes place and global settlements are thrust upon them is not a good thing. The defendant’s best friends are always delay and complexity. There is no place where greater delay happens and more needless complexity is generated than in the MDL process. Additionally, the discovery in the MDL process never identifies wrongdoing as effectively as individual state court litigation. There is substantial irony in the fact that while individual product liability suits against a given manufacturer alleging a defect in a particular product may result in multiple depositions of corporate engineers, managers and other persons, if you hurt or injure a lot of people you can actually foreclose and limit the discovery into the truth by seeking the protection of an MDL. LD: Is there a specific reason why you chose Hastings over another law school? MK: As a native San Franciscan, I knew I wanted to stay and practice in the San Francisco area after law school. Additionally, my wife and I were married prior to law school and our families were in the area. So we had both professional and personal reasons to find a law school which was affordable and close to home with an excellent reputation, a history of producing talented courtroom lawyers and respected trial court judges. My choices were Hastings or Boalt Hall on the UC Berkeley campus. I thought Hastings would provide what I needed in terms of academic and practical training, and I’ve never regretted my choice. LD: Do you have the type of practice you imagined yourself practicing while in law school? MK: I don’t know that any law student ever correctly imagines what she or he will be doing after graduation. I knew that my place in the legal system would involve work in the courts. I knew that I did not want to be doing transactional or office-based work. I began my career as a criminal defense lawyer, and while the work was intense, difficult and stressful, something about the courtroom atmosphere was energizing. From there I moved to civil trials. LD: Why did you enter the law in the first place? MK: When I was growing up my parents and teachers instilled in me the belief that each of us has an obligation to the people around us to make the world a better place. When I was young, it seemed to me that if you wanted to make your community a better place you had three choices: You could be

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a physician, a minister or an attorney. I hated math and wasn’t very good in chemistry, plus I fainted at the sight of blood. That ruled out being a doctor. My penchant for sarcasm, cynicism and wisecracks made the Lord’s work an unlikely career. That left the law. Its focus on social justice and righting wrongs resonated with me. It let me remain who I was, and make a difference for the better in other people’s lives. LD: Did you have a favorite class or professor that was particularly influential in your studies or future career? MK: When I was at Hastings the so-called “65 Club” was in its heyday. The 65 Club concept was adopted to target and recruit nationally known legal educators, law school deans and prolific authors who had been required to retire at age 65 by their prior institutions. I think my favorite teacher among that group was Lawrence Eldridge. Eldridge started teaching law in Philadelphia in the late 1920s, first at Temple University and later at the University of Pennsylvania. He retired from Penn Law School in 1944. From 1940 to 1968 he was in private practice and also served as a lecturer on medical jurisprudence at Penn Medical School. He moved to San Francisco in 1970 and taught torts at Hastings until his retirement in 1979. He authored several books on the law, among them “Trials of a Philadelphia Lawyer” (1968) and “The Law of Defamation” (1978). In 40 years of private practice he specialized in plaintiff-side tort cases. He taught torts with great vigor and excitement. Notwithstanding the fact that he was well into his 70s, talking about the cases he had tried and the people he had helped was inspiring. Additionally, his work on the restatement of torts and his other scholarship gave him credibility and gravitas that was not always associated with the field of torts. LD: Was there an early experience or mentor who really helped shape the course of your professional life? MK: San Francisco in the 1970s was a legal community full of giants in the field of torts: Bruce Walkup, Bob Cartwright, Melvin Belli, James Downing, Jim Boccardo, Marvin Lewis Sr., E. Robert Wallach and many others were on the cutting edge of trial practice, experimenting with and perfecting the use of demonstrative evidence. I was fortunate to secure an associate’s job working in Bruce Walkup’s law firm. It was the incubator for many great San Francisco plaintiffs’ lawyers and I had the opportunity to learn from all of them.


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LD: How has your practice changed since the early part of your career? MK: It’s hard to believe that the practice of any lawyer who’s been at it 40 years has not changed over time, but I think in the plaintiffs’ personal injury practice there have been dramatic changes. In the early days, auto crash cases probably made up as much as 75 percent of the work, but over time, as successful product liability suits compelled automakers to make their vehicles safer and forced manufacturers to implement designs that cushioned impact, absorbed energy, provided better occupant protection via headrests, seatbelts and airbags, the number of automobile cases litigated in the courts significantly decreased. At the same time, we saw ourselves doing more and more product liability work on behalf of consumers for a variety of household and consumer products such as infant furniture, home appliances, tires, automobiles, drugs and devices. Additionally, in California, we experienced draconian restrictions on the right of medical patients to be fully compensated for injuries caused by their healthcare providers. Limits on recoverable damages as well as severe restrictions on plaintiffs’ attorneys fees, works to the benefit of doctor and hospital insurance companies in preventing fair and adequate compensation to patients for life-altering injuries caused by doctors, hospitals, nurses and other healthcare licensees. Our legal landscape was dramatically changed by the restrictions implemented by the California legislature in 1975 with the Medical Injury Compensation Reform Act (MICRA), with the result that at least 80 percent of patients who have suffered at the hands of negligent healthcare providers are marginalized and foreclosed from bringing cases in the courts. As someone who always was involved on the medical side of tort practice, I watched the section of the bar that handled plaintiffs’ medical negligence claims almost entirely vanish. In my practice, I have continued to do medical negligence and healthcare malpractice, but my ability to represent clients who have had substantial and significant quality of life impairment, without economic harm, has been greatly limited because of our MICRA statute. At the same time, I found myself becoming more involved with so-called “mass torts” that implicated healthcare delivery issues – particularly those that involved medical devices. My 40 years of experience in healthcare-related litigation – whether physician negligence, hospital errors, negative drug interac-

tions, coupled with my work on product-defect claims in the ’80s and ’90s – seems to have been a good prelude to becoming involved in medical-device defect litigation. LD: What do you do for fun when you’re outside the office? MK: If I’m not at work and truly on vacation, then it’s likely you will find me in the outdoors, typically fishing on a mountain river, creek or stream in the Sierra, the Rockies, or the mountains of Montana. If I’m not on vacation and I’m home and need a break, then you’ll find me at the ballpark. I have been a fan of Major League Baseball, and the San Francisco Giants, since 1960. I’ve had season tickets for the Giants for more than 35 years. Since I live in the city, and the park is downtown, it’s a great getaway – and when the team is winning it’s even better. And of course, like almost all grandparents, I’d rather be hanging out with my grandchildren than doing almost anything else. I once read a quote that said “Our grandchildren accept us for ourselves, without rebuke or effort to change us, as no one in our entire lives has ever done, not our parents, siblings, spouses, friends — and hardly ever our own grown children.” I think that’s true. Our time together is special. There is nothing that has to be accomplished, there is no judging of thoughts or opinions, there’s just fun. And seeing the world through their eyes, well, it’s better than TV, movies, books or theater. LD: If you weren’t a lawyer, what would you be doing now professionally? MK: I think I would probably be teaching something somewhere. Maybe History, maybe Political Science, or English at the university level. Maybe Social Studies or English in high school. Maybe Torts or Constitutional Law or Trial Practice in law school. My mom was a teacher and it gave her great satisfaction. I think that teachers, as a whole, are both undervalued and underpaid. They step in and take the place of parents for our children six-to-eight hours a day for 12 to16 years of kids’ lives. They are excited and challenged by their students’ curiosity, intelligence, creativity and longing for learning. It makes going to work fun. There is great satisfaction in watching young people develop, grow, become independent and face the world with optimism. It’s a way to make a difference, to help change the world one person at a time. I think it’s very satisfying work. Read the full Q&A at www.lawdragon.com/2016/04/07/lawyerlimelight-michael-kelly.

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Abby Cohen Smutny

Catherine Stetson

WHITE & CASE NEW YORK

HOGAN LOVELLS WASHINGTON, D.C.

Amy Solomon

Bryan Stevenson

GIRARDI | KEESE LOS ANGELES

EQUAL JUSTICE INITIATIVE MONTGOMERY, ALA.

Sonia Sotomayor

David Stickney

U.S. SUPREME COURT WASHINGTON, D.C.

BERNSTEIN LITOWITZ NEW YORK

Lisa Sotto

Christina Storm

HUNTON & WILLIAMS NEW YORK

LAWYERS WITHOUT BORDERS NEW HAVEN, CONN.

Robert Spatt

Adam Streisand

SIMPSON THACHER NEW YORK

SHEPPARD MULLIN LOS ANGELES

Broadus Spivey

Leo Strine

SPIVEY & GRIGG AUSTIN

DELAWARE SUPREME COURT WILMINGTON

Sri Srinivasan

Diane Sullivan

U.S. DISTRICT COURT FOR THE D.C. CIRCUIT WASHINGTON, D.C.

WEIL GOTSHAL NEW YORK

Richard Stark

Kathleen Sullivan

CRAVATH NEW YORK

QUINN EMANUEL NEW YORK

Myron Steele

Steven Sunshine

POTTER ANDERSON DOVER, DEL.

SKADDEN WASHINGTON, D.C.

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Dona Szak AJAMIE LLP (HOUSTON)

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Stuart Singer BOIES SCHILLER (FORT LAUDERDALE)


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STUART SINGER IT’S THE SPORT OF CHAMPIONS –

legally speaking. Just ask more than a few members of the Lawdragon 500. It’s all about debate, and few were champions as early as Stuart Singer – who got his start as a high school champion in Miami and went on to win the National Collegiate Debate Championship while at Northwestern University. He’s never looked back.

Where have those skills landed him? As the president of the Harvard Law Review; two-year clerk to U.S. Supreme Court Justice Byron White; partner at Boies, Schiller & Flexner; and counsel of choice for, Carnival Cruises, Fidelity National Financial, and NextEra Energy, the largest renewable energy company in the U.S. In recent years, he’s secured what’s been called the most important transformative relief in the multi-level marketing field, against Amway/Quixtar; co-led the elite Boies Schiller class-action corps in huge optouts from both the LCD and CRT (cathode-ray tube) litigations; and, enjoyed success in litigation on behalf of Madoff victims in the Anwar feeder fund litigation – in which they both made good law and won a significant settlement. But what we’re here to talk about is a case close to Singer’s heart, and which may have changed more lives than any U.S. litigation of the past decade. Because who better to rip off than children – and Florida had 2 million children in 2005 who were being denied Medicaid benefits to which they were entitled. At least until Singer came along. Lawdragon: Tell me how you decided to become a lawyer, and what role debate played in that? Stuart Singer: I was born in Miami in 1956 and grew up in a very modest neighborhood, which is now part of Little Havana. I was a debater at Miami Senior High in 1972 and then went to Northwestern, principally because they have a great debate program. Debate is probably what got me into Harvard Law School and allowed me to do well there. While at Harvard, I continued to be involved in debate, serving as a part-time coach for the University of Redlands and traveling to debates they’d have on the East Coast each year. That’s how I met Bill Isaacson [a Boies Schiller partner who was a National Debate Tournament Finalist from Redlands in 1981]. It’s also how I met Michael Gottlieb, another Boies

PHOTO BY: JOSH RITCHIE

BY KATRINA DEWEY Schiller partner, more than 20 years ago when he was a Northwestern debater. The debate coach said this guy is incredibly good and recommended we keep an eye on him. LD: How did you come to join Boies Schiller? SS: After I clerked for Justice White, I came home to Florida and joined Greenberg Traurig, which then had only 60 lawyers. Mel Greenberg recruited me. After I made partner, another clerk for Justice White, Peter Kalis, contacted me to ask if I would consider joining K&L Gates to manage its Miami office, which I did from 1993 to 2000. In 2000, through Bill Isaacson, I met Jonathan Schiller and Don Flexner, and then met David Boies. They asked me to join the firm. The opportunity to work with this firm was so extraordinary – to do plaintiff work, defense work, public interest work and have a national platform while still living in Florida was really something unique. LD: Many lawyers don’t realize that the second-largest contingent of Boies Schiller lawyers is in Florida. SS: The first Boies Schiller & Flexner office in Florida was with Karen Dyer and Gary Harris in Orlando. I joined Caryl Boies here in Ft. Lauderdale and we built up the office and then Steve Zack and Mike Koznitsky merged their top-notch firm into Boies Schiller in 2001 for our office in Miami. And we also have an office in Hollywood from our merger with James Fox Miller, one of the nation’s best family lawyers, and his team. LD: Lawdragon met you in 2005, because of your lawsuit against the state of Florida on behalf of 2 million children who were being denied health care under Medicaid. Now – 11 years later – you’ve finally won sweeping reforms. Congratulations. Can you talk a bit about how you got involved in that case? SS: Jim Eiseman from the Public Interest Law Center in Philadelphia contacted me and asked if we would do this case jointly with them. They had done that in other jurisdictions, in Illinois and Oklahoma, representing children to try to get better care for what’s called the EPSDT mandate of the Federal Medicaid law: Early Prevention, Screening, Diagnosis and Treatment. For children, unlike adults, there are a series of services the state has to provide for healthy kid checkups: full exams, immunizations, lead blood testing, vision exams, hearing and dental. It also requires providing

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500 treatment for conditions that are found and ensuring that children get care with reasonable promptness. Separate and apart from that, the Equal Access Provision provided that Medicaid beneficiaries should have equal access to care – or, more specifically, that payment rates for doctors treating the children should be set at a level to facilitate equal access. The federal Medicaid act also required outreach to inform people that services are available. One of our partners, Carl Goldfarb and I began to investigate, and then we were joined by Damien Marshall, who’s now a partner in New York but started out as an associate in Ft. Lauderdale, Sashi Bach, also a partner in Ft. Lauderdale, and Josh Riley, who is now counsel in our Washington, D.C., office. LD: After you understood what was required of the state, what was your next move? SS: The physician organizations began to find some plaintiffs. What that meant, basically, was finding the guardians and parents who were willing – even though there was nothing in it for them financially – to poke their heads up against the state of Florida and take them on in a big lawsuit. We were helped by the Florida Pediatric Society, which is the organized pediatrician group in Florida, and in particular, a wonderful individual, Louis St. Petery, who is a pediatric cardiologist who practices in Tallahassee. We filed suit in South Florida on their behalf, as well as on behalf of the Florida Chapter of the American Academy of Pediatrics and the Florida Academy of Pediatric Dentists. Probably the most important stroke of good fortune for us is that the case was assigned to Judge Adalberto Jordan. He’s wonderful and smart, and was also willing to take the time to deal with what he said was the most complex case he’s ever had. LD: How did you break down such a complicated case to prove the state’s failure to meet its obligations? SS: We broke the case down into six areas. One was the lack of preventative care from pediatricians. A second was the lack of specialty care, which was a huge problem. The third was dental care; Florida ranked last in the entire United States in the percentage of children on Medicaid who received dental care – at the time of trial, only 21 percent. The fourth area was arbitrary terminations of care and switching, where kids were switched from one doctor to another or arbitrarily terminated when they should have been kept on. There were 25,000 kids being terminated a year wrongfully.

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LD: How could that happen? SS: The two computer systems in Florida - one at the Department of Children and Families, and the other at the Agency for Health Care Administration - couldn’t talk to each other effectively. The fifth area involved problems with the application process. During the trial, I asked the other side’s expert to try to complete the application and the expert couldn’t do it. Their witness from the Department of Children and Families couldn’t do it either. And the sixth area was the outreach program, which Florida in its wisdom eliminated in 2003, even though it’s mandated. There are two forms of outreach that are important. One is that people who are enrolled need to know they’re entitled to benefits, including that they’re entitled to transportation, and they should get reminder letters about dental care. In addition to that, there needs to be the second type of outreach – to the people who are eligible for the benefits, but need to be notified so that they can enroll. Florida took the position that the statute didn’t apply to eligible but unenrolled children. Judge Jordan shot that down – there are 250,000 kids in Florida who are eligible but not enrolled. You need to have outreach including billboards, and flyers in welfare clinics and in schools. At trial, we showed how the state knew they were failing to meet the mandated requirements with some wonderful video testimony our team put together. LD: Can you discuss clips from testimony that you presented in court? SS: Yes. One is the former head of AHCA, whose deposition I took a year after he left office; he was the senior-level cabinet officer responsible for the program. The state fought tooth and nail to prevent his deposition. We had to win in front of the magistrate judge, the district court and they even took it to the 11th Circuit in an effort to prevent us from getting his testimony. But we won those battles. I went to the State of Washington to take his deposition - and he has amnesia. He doesn’t remember anything – but we had a transcript of a speech he had given when he was secretary and one of our case managers had through a public records request obtained a videotape of that speech, which led to my ability to do this at trial, comparing the deposition to the videotape of his speech.


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And this was a legal battle that involved many seriously injured children. Among the named plaintiffs, you had a boy with a tumor growing on his neck and he couldn’t get radiological scanning. You had another kid with scoliosis; he couldn’t get surgical treatment. You had children who had broken bones that couldn’t be set promptly. Two children who were named plaintiffs died during the pendency of the case. This was a tremendously serious situation. Resolving this was very hard and the state fought us tooth and nail. In Illinois there was a settlement, although it was also after a trial. There eventually was a settlement in Texas. Some of these cases, like in Texas, have also gone for a decade, but it didn’t have to happen. It didn’t have to take a decade. LD: Children. Healthcare for children. It shouldn’t be a hard sell. How could anyone disagree on that? SS: One of the things no one disagreed with was that preventative care for children is about the most cost-effective place to spend money because by dealing with this at the preventative stage you’ll avoid bigger problems where you have to pay for more health care down the road. Yet in earlier administrations up until the time of the suit, the state would go to the legislature and ask for more money for the same things we were asking for, but the legislature would not approve the funds, In fact, we used that in our case, so if there’s a real culprit in this case more so than AHCA, it’s the Florida legislature because they wouldn’t fund what they were required to fund.

On December 31, 2014, the decision came down – a sweeping decision in our favor on everything. The state continued to fight, arguing that because they had now moved to managed care, these problems had been taken care of, that the evidence was stale, all sorts of additional issues. In a few areas after the trial, the state largely fixed some things like terminations of eligibility. The applications were better, but other problems such as not paying doctors enough money to incent participation, paying them at Medicaid rates that are 50 percent below Medicare and 70 percent below private insurance, remained. In October 2015, Judge Jordan directed two magistrate judges, one to have a remedy hearing in April of this year and the second, federal magistrate judge Chris McAliley, to have a mediation. We had a mediation before the trial that didn’t accomplish anything, but this time around the state had some new attorneys, including Carol Licko with Hogan Lovells, and Rick Figlio, who has worked with the governor and works in Tallahassee. You had a new general counsel at AHCA, Stuart Williams, and Judge McAliley was determined to exhaust every opportunity for settling the case. Through everyone’s efforts, we got the whole thing settled in the space of two months of about 10 to 12 allday mediation sessions. LD: Are you happy with the settlement?

We had to win class certification. We had to win against a motion for summary judgment. We had years of discovery. Our trial started in front of Judge Jordan in December 2009. Originally, he had imposed a time limit where each side would have about 120 hours, and the state complained so much that he took off the time limits because it’s an important case. The state took tremendous advantage of that. They called witnesses that testified for six, seven days at a time.

SS: It’s a good settlement, and it’s a compromise, which means you don’t get everything you want. But it provides a system of changes which, if implemented properly and if they have the intended effect, will get Florida to national norms in both medical and dental care in three to five years. The State has committed to spending all the savings from the Medicaid program to increase reimbursement levels. And if they don’t meet interim benchmarks, they have to increase all the doctors’ compensation up to Medicare levels so as to incent more doctors to participate; and similar changes are made for dentists.

The trial went a few days here and a few days there through 2010. In October 2011, we were a long way from finished and Judge Jordan was up for appointment to the 11th Circuit. Other judges took cases from his docket, but he kept this case. We then were in trial almost constantly from October 2011 through March 2012, when we closed. The state made a lot of post-trial motions. It took a long time, 94 trial days, to get to the finish line.

The settlement also encourages the agency to work as partners with doctors’ organizations, including to meet with them on how to improve applications and outreach. The court retains jurisdiction until 2022. The State also agreed to pay us and our co-counsel at the Public Interest Law Center $12 million in attorney’s fees and costs. Read the full Q&A at www.lawdragon.com/lawyerlimelight-stuart-singer.

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Kathy Love MCGINN CARPENTER (ALBUQUERQUE)

name name FIRM FIRM FIRM (CITY)


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KATHY LOVE LIKE MANY OF HER FELLOW LAWDRAGON

500 members, Kathy Love embodies the philosophy of taking cases that make a difference. For Love and her partners at the renowned Albuquerque, N.M.-based plaintiffs’ firm of McGinn, Carpenter, Montoya & Love, that typically means helping people during the most difficult times of their lives. Among her many verdicts and settlements, Love earned a $67.3-million verdict in 2014 against Biotronik over the wrongful implant of a pacemaker. The 1995 graduate of DePaul University College of Law is currently serving as President of the New Mexico Trial Lawyers Association and Foundation. Lawdragon: How did you first become interested in being a trial attorney representing plaintiffs? Kathy Love: I have always been committed to representing the “little guy” against the “big guys.” I started my career as an assistant public defender where I became even more aware of the disparity of power between socio-economic groups. I met my now law partner, Randi McGinn, and was struck by the positive change that can be made through plaintiffs’ litigation and knew that representing plaintiffs was what I was meant to do. LD: Can you share a few things that you like about the practice or why it is professionally satisfying? KL: When clients come to me, it is usually because the worst thing in their lives has happened – a catastrophic injury, the wrongful death of a loved one. It is more satisfying than anything I ever dreamed of doing to help them face their grief and make changes that will prevent similar tragedies from happening to other people in the future. LD: What’s the most interesting thing you’ve done? KL: It is hard to narrow it down to one “most interesting thing” because one of the great things about being a trial lawyer is that I am always learning new things. I have worn a hard hat and toured a copper smelting plant, I have interviewed witnesses in communities of all corners of the state. I have learned about medical procedures, carbon monoxide, police practices and all kinds of things that I never would have encountered but for the cases I handle. LD: How do you choose what cases to take on? KL: I take cases where I can make a difference in the community – either through changes in the law, or

PHOTO BY: KIP MALONE

BY KATRINA DEWEY policy changes that will make workplaces, products, or systems safer for people. LD: Can you describe a recent case? KL: I represented 34 people whose doctor convinced them that they needed pacemakers surgically implanted in their chests when, in fact, they did not need the pacemakers. My partner and I tried the first of 34 cases to a jury in the fall of 2014 to a $65 million punitive damages verdict. We proved that the manufacturer of the pacemakers was offering kickbacks to the doctor to implant as many of its devices as possible. The doctor, the manufacturer and the hospital made millions of dollars off the scheme. The cases have been in litigation since 2007. We are a small firm and were up against two national corporate hospitals, an international manufacturing company and a doctor. The challenges have always been and continue to be getting the discovery we are owed, then culling through hundreds of thousands of documents to find the buried treasures. As our healthcare system becomes more profit-driven and less community-centered, there is a tension between running a business and keeping patients safe. Anti-kickback rules are intended to protect patients and ensure that medical decisions are made not for business purposes, but for patient safety. When those rules are violated, patients get hurt. This case sent a message to the medical device manufacturing industry that patient safety must come first. LD: What do you do for fun outside the office? KL: I established my career first, and had a child later in life. I focus most of my free time on my family – traveling, hiking, skiing, playing basketball and board games. LD: What about some of your public interest work? KL: I have been privileged to attend good schools and have many opportunities in life, so I am a believer in giving back to the community. I have been involved in a number of local organizations like Emerge New Mexico, which trains women to run for political office; the ACLU’s reproductive health initiatives; and Equal Access to Justice, which raises money for legal aid organizations in New Mexico, among others. Read the full Q&A at www.lawdragon.com/2016/05/10/ lawyer-limelight-kathy-love.

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Steven Molo MOLOLAMKEN(NEW YORK)


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STEVEN MOLO STEVEN MOLO ACKNOWLEDGES THAT IT

may have appeared a little crazy to start a law firm in the wake of the financial crisis, a venture he took on with appellate specialist Jeffrey Lamken. But it turned out to be a shrewd move for the talented litigators and entrepreneurs – building a thriving practice that has allowed them to take on the cases they want. For Molo, a perennial Lawdragon 500 member, that can include anything from plaintiff-side work over mortgage-backed securities to defending corporate executives or politicians in criminal cases.

“I am one of the very lucky people who can say I love what I do and believe this is the career I’m supposed to have,” Molo says of being a trial lawyer. A graduate of the University of Illinois College of Law, Molo cut his teeth as a prosecutor and then at the Biglaw firms of Winston & Strawn, where he served on the executive committee, and Shearman & Sterling before co-founding MoloLamken in 2009. The firm has offices in New York, Chicago and Washington, D.C. Lawdragon: Can you talk a little bit about how you decide what cases to take on? Is it just what happens to really draw your intellectual and subject matter interest? Steven Molo: We look for matters – and it seems like matters look for us – in which we provide the greatest value. Sometimes it is about a case having our intellectual or subject-matter interest, but it is also about what we can bring to a matter. We bring highly experienced courtroom advocacy skills and a strategic approach. Clients tell us that is not all that common. We work very hard at that – including in our recruiting and training of associates. And, of course, we will share risk, investing in cases we believe in alongside our clients. While many clients – companies, foreign sovereigns, investors, executives, inventors – come to us directly, we take great pride in the fact that much of our work is referred to us by other lawyers. We often partner with other firms and, recently, one of the truly great global firms retained us as its counsel in a significant matter. LD: From an outsider’s perspective, it seems a little counterintuitive to have started your own firm not long after the start of the financial crisis. SM: Counterintuitive? Many people thought we were crazy. Both Jeff and I had established careers

PHOTO BY: GREG ENDRIES

BY JOHN RYAN with excellent firms. But we also both had an overwhelming desire to create a firm that would be first, grounded in excellence in advocacy, and second, entrepreneurial and able to turn that excellence into financial success. The timing actually was great because many clients were in the midst of re-thinking their relationships with outside firms. The crisis also provided a lot of opportunities to get hired on complex financialservices-related litigation and investigations. And, of course, if you were willing, as we were, to sign your name on a lease in Midtown Manhattan or Foggy Bottom, real estate was reasonably priced. LD: What advice would you give to lawyers considering starting their own firm? SM: First – have a well-defined vision of what you want to be. Commit to it and let it drive every decision you make – hiring, compensation, client selection, office location and design, what your website looks like. Define your culture, build it, and live by it. Second – recognize execution is as important as strategy. That often means basic blocking and tackling – billing and collecting, moving along the interview process, being sure the team has the technology and other tools needed to do the job well. Third – take calculated risks and be prepared to adjust and move forward if things don’t go as planned. You can always find a reason not to do something that involves risk – adding a new partner, experimenting with a different fee structure, undertaking a new marketing initiative. If you think things through, some risks will pay off and you will profit and grow. Yet, others won’t and you cannot beat up yourself or, more importantly, others in the firm when that happens. We are big on what the military calls “after action reviews.” We try to take the time to evaluate what occurred and learn from our failures as well as our successes. LD: I would assume that hiring and staffing is of extreme importance for a lean firm like yours, given the types of cases you handle, and that the opponent law firms will often be much larger. SM: Our firm begins and ends with our people. We look for people who are bright and have had some accomplishments in terms of academic success, a judicial clerkship, maybe government service. But

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Steve Susman

Mary Ann Todd

SUSMAN GODFREY HOUSTON

MUNGER TOLLES LOS ANGELES

Tara Sutton

David Tolbert

ROBINS KAPLAN MINNEAPOLIS

INTERNATIONAL CENTER FOR TRANSITIONAL JUSTICE NEW YORK

Eric Swedenburg

Steve Toll

SIMPSON THACHER NEW YORK

COHEN MILSTEIN WASHINGTON, D.C.

Dona Szak

Robert Townsend

AJAMIE HOUSTON

CRAVATH NEW YORK

John Tarantino

Max Tribble

ADLER POLLOCK PROVIDENCE, R.I.

SUSMAN GODFREY LOS ANGELES

Clarence Thomas

Lisa Tsai

U.S. SUPREME COURT WASHINGTON, D.C.

REID COLLINS & TSAI AUSTIN, TEXAS

Peter Thomas

Jonathan Turley

SIMPSON THACHER WASHINGTON, D.C.

GEORGE WASHINGTON LAW SCHOOL WASHINGTON, D.C.

Tyler Thompson

Ted Ullyot

DOLT THOMPSON LOUISVILLE, KY

ANDREESSEN HOROWITZ MENLO PARK

Sally Thurston

Karen Valihura

SKADDEN NEW YORK

DELAWARE SUPREME COURT WILMINGTON

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that’s only the beginning. We’ve spent a lot of time – working among ourselves and with consultants – to develop an interviewing regimen designed to identify people who will thrive in our culture. That means a demonstrated interest in the kind of work we do, an ability to communicate well, a commitment to teamwork, an appropriate level of confidence and presence that will play well with clients and other lawyers, and an entrepreneurial spirit. Candidates interview with every partner and associate. We are open and direct with them about who we are and how we work, and we encourage them to be honest with themselves and with us in response. It takes a lot of time but it’s worth it. LD: Did you always want to be a trial lawyer? SM: Yes. I am one of the very lucky people who can say I love what I do and believe this is the career I’m supposed to have. I am fortunate that Jeff Lamken, a tremendously talented lawyer, shared a vision to form the firm and that we have an outstanding team devoted to making MoloLamken a world-class litigation firm. I feel the firm provides a tremendous vehicle for the full employment of my talents and I hope that that’s true for every lawyer who joins us. LD: You are known as a great courtroom advocate. How does a younger lawyer today develop those skills? SM: Getting on your feet in court, of course, is the best way to learn. It is not always easy to get the opportunity. Our people have no choice. They all attend NITA [National Institute for Trial Advocacy] when they start with us and then they’re off to the front lines. One of our mid-level associates crossexamined seven witnesses in a criminal case I tried to a jury in federal court in Chicago earlier this year. But you can learn a lot from watching great lawyers, reading transcripts, and reading books about trials. You have to be committed and seek out opportunities, and be ready to run with the ball when it is handed to you. LD: Is there a single tip for successful advocacy that you can share? SM: To quote Mies van der Rohe, “Less is more.” Too many lawyers wallow in the minutiae and lose perspective. In the end we are there to persuade rather than to prove we are right – if that makes sense. As humans we communicate through narratives. Great advocates – at both the trial and the appellate level – are great story tellers who are able to clearly and

simply set out a path for a jury or court to follow and decide in their favor. That means intellectual honesty and editing. Having the confidence and good sense not to introduce eight documents because the point is better made with two, or to drop a final argument in a brief because there’s no way it will carry the day is the mark of good advocacy. Fortunately for our firm and for me, it’s far less common than you might think. LD: Was there a mentor in the prosecutor’s office or early at Winston & Strawn who was particularly influential in your development as a litigator? SM: Wow. There’s always a risk in answering a question like this that you will forget to mention someone or their name will be edited out. I’ve had some wonderful people generously provide me with insight and guidance throughout my career. Paul Biebel, who just retired as the Presiding Judge of the Cook County Circuit Court Criminal Division, was an early mentor who let me learn by doing. Winston & Strawn’s Chairman, Dan Webb, has been an important influence. I worked for him for about five years as an associate and a junior partner – we tried several major cases together. Judge Joel Flaum on the 7th Circuit and Ty Fahner at Mayer Brown have been there throughout my career. Gary Naftalis, Greg Joseph, Bill Pratt, and Bob Fiske all have been terrific influences since New York became a bigger part of my practice. And when we started the firm, people like Steve Susman, Mark Kasowitz, Fred Bartlit, Mike Lynn and others around the country were supportive and helpful. LD: Can you share a fellow trial lawyer you have come up against in court whom you admire, and why? SM: Another risky one. Rather than a lawyer, I will give you a firm – Jenner & Block. They have been opposite me more times than any other single firm throughout my career. We’ve had some great battles – the Ron Perelman case against Morgan Stanley; Paul Smith and I spent a day arguing some of the key issues early in the RMBS litigation; the last case I tried at Winston & Strawn had [former Jenner chair] Jerry Solovy representing a hedge fund suing my client, UBS. As a young government lawyer I dealt with Bert Jenner on a case. He then sponsored my admission to the U.S. Supreme Court bar. We’ve also been on the same side in some important matters. They are smart, tough advocates. Well – now I have irritated my friends at the other great litigation firms throughout the country. Read the full Q&A at www.lawdragon. com/2016/10/04/lawyer-limelight-steve-molo.

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Walter Lack ENGSTROM LIPSCOMB (LOS ANGELES)


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WALTER LACK IT’S HARD TO FIND A MORE GRACIOUS, intelligent and admired lawyer than Walter Lack.

And yet were it not for an accident in his first job – working for the railroad in Los Angeles – he might never have had the opportunity to help thousands of injured consumers win billions from makers of faulty products, oil companies that harm the environment, and aircraft manufacturers whose failures lead to tragic deaths. The founder of Los Angeles’ Engstrom Lipscomb & Lack is genuinely grateful for every opportunity he’s had, particularly since the day he entered Loyola Law School in Los Angeles. We talked shortly before he hosted the class of 1966 from Gardena’s Junipero Serra High School at his home for their 50th reunion. He looked at his old yearbook ahead of time, and smiled at his prophecy – he was going to be a lawyer. That’s what he said at eighth-grade graduation, too, though no one in his family had graduated from college. It’s great to be smart. It’s better to be smart enough to know how lucky you are. Lawdragon: Can you tell us a bit about your path from working-class kid in suburban L.A. to law school? Walter Lack: The law came to me in a strange way. My dad was a building contractor and my mom was a full-time homemaker, which was a big job as I’m the oldest of five boys. I loved high school and was very lucky to get a national merit scholarship for four years at Loyola. I moved out of the house and a week after high-school graduation my cousin told me about a great summer job working for the railroad as a switchman and brakeman. I drove to a seedy industrial area in East Los Angeles and applied for a job at the Santa Fe Railroad. In a few days, I was a bona fide railway switchman and that required me to join the Brotherhood of Railway Switchmen Labor Union. I loved the job and decided to keep it while attending college full-time. As a switchman, you make up the trains of cars by making sure the coupling devices are open so the cars hook together; you get under the cars where the couplers are and hook up air hoses which activate the air brakes. My favorite shift was working 11 p.m. to 7 a.m. because then you could go to school in the morning.

PHOTO BY: AMY CANTRELL

BY KATRINA DEWEY LD: That sounds like a dangerous job. WL: It was. Not long after I got there, I saw a guy get coupled up between two cars and I was the first guy to reach him. Before they uncoupled the cars, he said, “Tell my wife I love her.” And then he died. After two years, Santa Fe promoted me to Engine Foreman, which meant a good raise and responsibility for running crews of up to 10 men when I was 20-years old. I was injured on the job, my thumb got caught in the dog on a defective brake. I was sent to Santa Fe Hospital for surgery. That’s when the law first came to me. Still recovering from the effects of surgery, two gentlemen entered my room and introduced themselves as union representatives and co-workers. I learned that railroad workers and seamen were the only class of workers in America who were not covered by Workers Compensation benefits but could sue their employer if the accident was the fault of the employer, and mine was. I went directly from the hospital to the lawyers’ office recommended by the Union. My case drug on for years and by the time it went to trial I was in my first year of law school working as a law clerk for the firm representing me. At trial we waived a jury and railroad counsel agreed. Big mistake for them. The judge awarded me enough to pay off all my student loans, law school tuition and stake me an entry in the World Series of Poker. I was starting to really like the law. LD: And how did you come to found Engstrom Lipscomb & Lack shortly out of law school? WL: I worked 40 hours a week clerking for the lawyer who handled my case during law school. So I had 10 trials by the time I graduated. I knew the path I was going down, so I only took classes that would help me – maritime law, civil trial advocacy, insurance law. I took aviation law from Bill Tucker, who was probably the toughest insurance defense lawyer doing aviation law exclusively in the country. Fred Lower taught me torts, insurance law and civil trial advocacy. He became a very distinguished dean of the law school and was an inspiration to me and personified civility, competence and professionalism. After graduation, the top 10 percent of graduates in my class were being offered premium salaries of $18,000 per year by O’Melveny and Gibson Dunn.

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Chilton Davis Varner

Maurice Watson

KING & SPALDING ATLANTA

HUSCH BLACKWELL KANSAS CITY, MO.

Christine Varney

Seth Waxman

CRAVATH NEW YORK

WILMER HALE WASHINGTON, D.C.

Charles Verhoeven

Dan Webb

QUINN EMANUEL SAN FRANCISCO

WINSTON & STRAWN CHICAGO

Donald Verrilli

Ted Wells

U.S. DEPARTMENT OF JUSTICE WASHINGTON, D.C.

PAUL WEISS NEW YORK

D. Jean Veta

Tony West

COVINGTON & BURLING WASHINGTON, D.C.

PEPSICO PURCHASE, N.Y.

Helgi Walker

William Whelan

GIBSON DUNN WASHINGTON, D.C.

CRAVATH NEW YORK

Leigh Walton

Mary Jo White

BASS BERRY NASHVILLE

SEC WASHINGTON, D.C.

F. Joseph Warin

K. Craig Wildfang

GIBSON DUNN WASHINGTON, D.C.

ROBINS KAPLAN MINNEAPOLIS

Paul Watford

Beth Wilkinson

9TH U.S. CIRCUIT COURT OF APPEALS LOS ANGELES

WILKINSON WALSH WASHINGTON, D.C.

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The firm I worked for started me at $20,000 per year with a guaranteed bonus. At that point I really loved the law. I was given cases to try the day I was sworn in representing railroad workers and seamen. I really liked the clients because I could make a big improvement in their lives. Within a few months, I started my current firm with Lee Lipscomb, where I have been for 42 years. LD: You also did a lot of work right from the start in aviation cases, which has been a hallmark of your career. How did that come about? We started out handling a lot of defense work for the aviation insurance market. Both of my partners had big firm experience defending airlines and representing the insurance underwriters who wrote the business, as well as handling subrogation claims. The minute we opened the door we got a case from Mather Air Force Base in Sacramento. A plane getting electrical repairs blew up and killed five guys. They assumed the cockpit voice recorder was burned up. But we found it, downloaded and transcribed it. The last words of the two guys in the cockpit were, “If you flip that switch, you’re liable to light Charlie up like a Christmas tree.” And then the guy flips the switch. We got a great result for the owner of the airplane. There was also the SilkAir 737 crash. A Singapore Airlines 737 took off from Jakarta and 35 minutes into flight went into a steep dive spiraling into the Musi River, killing 110 people. The critical part of the wreckage was 24 feet underwater; it took a year just to remove the wreckage. We needed the cockpit voice recorders and the flight data recorder; we didn’t know we needed, but ultimately got, the tail section. Within 48 hours of the crash, Boeing held a press conference saying this was a clear case of a pilot trying to commit suicide. We didn’t get into the case for the first few years, but then a lawyer came to us with a cascading electrical failure theory. When he got the flight data recorder, we could see somebody had pulled the electrical circuit breakers about five minutes before the crash, which meant there was no evidence of what happened after that – no flight parameters, nothing from the cockpit. And the only way those shut down is one of the flight crew had to have physically shut them down. I hated the cascading electrical failure theory. The man who became our expert was working on two crashes in America involving 737s where there was “uncommanded rudder failure.” The rudder sends a plane

up or down, which fit with the plane diving suddenly and spiraling. To prove that theory you needed the actuator device, which weights about 50 pounds and is a beautifully engineered cylinder. It uses hydraulic oil to push the rudder on a 737 up or down. When I got involved no one knew where the actuator was. I’d been involved in helicopter crashes in Indonesia and knew the chief investigator. We flew an investigator to meet him, and he says, “You know what, I think the actuator is still in our safe.” This was seven years after the crash. I sent our referring lawyer to Jakarta and the investigator wouldn’t part with it. So we flew him to Florida to our metallurgist, where they did a tear-down inspection and SVM microscopy. They found all kinds of original metal shavings. We developed a theory that a shaving got in there and prevented the slide from moving when they commanded the rudder and the plane went down because of that. And we found evidence that the manufacturer, Parker Hannifin, had rejected this exact actuator several times. For trial, we borrowed a mock-up of the entire 737 tail. We parked it right across the street from the courthouse. We marched the jury across the street and had our experts use one of the actuators and showed the jury when you make a certain command, the elevator goes up or down. They were enthralled. When the jury came back, they gave us more than we asked for. We only had four clients, two airline stewardesses and parents. That was the greatest jury I ever had. For four people, we won $50 million. From there, they asked us to represent the rest of the passengers and we settled for about $150 million within months. And the case had been considered a complete write-off, a loser. LD: We’d be completely remiss if we didn’t talk about Erin Brockovich, where you were a featured character in an Academy-Award winning movie. WL: They filmed bits of the movie in my Century City office and I asked the director if he had an interest in what actually happened at trial. He said, “It’s not about that.” To the average moviegoer it looks like a third of a billion dollars showed up on the porch step one morning and the case was over. It doesn’t show we spent seven months in trial in the first 33 cases, all of which led to a global settlement of just the first 600. There were 10 more years of litigation after that and a total recovery of about $180 million. Today, no utility in America uses any chromium-based product in their cooling towers.

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Bruce Yannett

RICHARDS LAYTON WILMINGTON

DEBEVOISE NEW YORK

Jamie Wine

Steve Yerrid

LATHAM NEW YORK

THE YERRID FIRM TAMPA

Christopher Wolf

Michael Young

HOGAN LOVELLS WASHINGTON, D.C.

WILLKIE FARR NEW YORK

Don Wolfe

Steve Zack

POTTER ANDERSON WILMINGTON

BOIES SCHILLER MIAMI

Marc Wolinsky

Taurie Zeitzer

WACHTELL LIPTON NEW YORK

PAUL WEISS NEW YORK

Richard Wyatt

David Zornow

HUNTON & WILLIAMS WASHINGTON, D.C.

SKADDEN NEW YORK

Debra Wong

Damien Zoubek

YANG GIBSON DUNN LOS ANGELES

CRAVATH NEW YORK

Lawrence Zweifach GIBSON DUNN NEW YORK

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LD: What’s the most important thing to you about being a lawyer? WL: Making a positive impact on a client’s life. This is particularly applicable to people who are injured or have lost somebody in a death case. When it’s over the only memory or impression of the law they have is how you made their lives better. That’s just a fact. LD: What cases are you working on now? WL: I still have a number of aviation crashes, none more important than for the family of Alan Purwin, the number one stunt pilot for helicopters as well as a famous fixed-wing stunt pilot. He did all the Michael Bay movies. He was working on the movie “Mena”, the story of Pablo Escobar’s first pilot, starring Tom Cruise. They hired Purwil to fly the fleet of three fixed-wing planes and three helicopters. The last day of principle photography, Purwil had been flying Tom Cruise all day and was completely exhausted. He jumped in the back of an airplane piloted by a guy who wasn’t even supposed to be on the set. He was just a friend of the director and the director’s employee, who was in charge of air operations. They crashed the airplane and killed everybody on the 10-minute flight into Medellin. I’m suing all the production companies, including Ron Howard and Brian Grazer, on behalf of his widow and children. We’re also involved in the Porter Ranch case handling over a thousand cases. I’m on the Planning and Steering Committee, which has already put $2 million in trust to finance a complete historic reconstruction of the well field; we have sources that indicate PG&E knew the field has been leaking for years. My favorite case right now is a sleeper, like a lot of our cases. The Bluff Fire was the largest fire in California history, burning 3,000 homes in three counties last summer, as well as several hundred thousand acres of forest. Most people assume it was a terrible forest fire. But guess what? We got PG&E in open court to say they’re responsible and they’ll pay for everything. The actual investigation revealed that PG&E hired a very large tree-trimming service, Trees, Inc., to do that work. When two lines came down intersecting at a roadway, they left three trees untrimmed – and that’s the exact point of origin. At 60-mph, the lines came together and created a spark that was unstoppable. We hired a drone firm to fly to the boundaries and visualize every stump in HD. We measure the size of the stump from the aerial photography, then we

know how big the tree was and we can calculate the board foot of lumber in each tree and multiply it by its value. The largest element of damages is a loss of timber, for which there’s a special civil code section providing two times fair market value. We can get the actual damages to within a hundred dollars on a hundred-thousand acres. LD: You are considered an outstanding investor. Can you talk about how your work as a lawyer introduced you to investment opportunities serving on the Boards of Directors of notable companies? WL: Some of the early results we achieved were judged by the clients to be phenomenal and new opportunities presented themselves. Some clients wanted us to invest in their business; some wanted us to be a part of it. If you litigate, the law requires you to become an expert on something new every day of your life. You must appreciate that the law can present infinite opportunity if you are willing to tolerate risk of failure. The law has allowed me to obtain on-the-job training in fields that no university curriculum could ever duplicate. About five years in to the practice I was invited to join the Board of Directors of a multinational insurance company where I served for 26 years. During that tenure I was elected Chairman of the Compensation Committee and Lead Outside Director. I also served on the Boards of several public companies with full disclosure that I was a plaintiff lawyer and Democrat. I was Chairman of the Board of a high-tech company that had a lot of government contract work. Sitting on that Board was a retired Naval Admiral who was Chairman of the Join Chiefs of Staff under Bush I, who got me investing in companies that all turned out to be home-run investments. I sat on the Board of a pharmaceutical company for 15 years. During that time the company discovered two compounds which the FDA has approved to treat two different blood cancers. During a London Board meeting, we traveled to Cambridge University and met a world-renowned cancer researcher. At lunch he mentioned his interest in the work of a small company in America that was close to a possible cure for Hepatitis C. Thankfully, Gilead Sciences is the largest holding in my retirement plan today. These stories could go on and fill a telephone book – if they are still making them. The only constant is the law’s ability to offer an infinite flow of life opportunities. Trial lawyers really are the lucky ones.

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Bryan Stevenson EQUAL JUSTICE INITIATIVE (MONTGOMERY, ALA.)

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LEGENDARY RILEY ALLEN

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ten years — and to even be mentioned in the company of some of the finest lawyers in the country.

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Being There:

David Boies’

First 50 Years in Court

It’s Vegas, baby, and the tables are warming up. But first, let’s grab a drink at the bar, and discuss whether the street artist Banksy actually exists, with a guy who looks a lot like Harvey Weinstein. Dinner is a glamorous affair, with gorgeous couples – high-society, media elite, straight and gay – talking about court battles. They should know. Kris and Sandy and Paul and Jeff are the plaintiffs who won the biggest civil rights battle of the past 20 years, for marriage equality. Pass the pigs in a blanket, please?

Photo by Jennifer Pottheiser. Artwork by Stephanie Blackman.

Next day, take a bus tour down to the Mob Museum, led by Nick Pillegi, who produced “Goodfellas” and wrote “Casino”. Nick and his seatmate in the fedora seated right behind Jeffrey Toobin – are recounting the scene of a poolside mob hit, and the guy in the hat says, “That’s not how it happened.” Jaw drop. Another round of mai-tai’s if you don’t mind. Naturally, because this is David Boies’ 75th birthday party, anything can happen and the fellow had, shall we say, intimate knowledge of how it did happen and had been a close personal friend of the government for the past couple decades. In his 50th year of law practice, Boies has defined a generation of lawyers – bringing a boundless view

By Katrina Dewey

of the law to emblazon an era of social change through advocacy in courts, boardrooms and the media. His life has swept from the dusty boots of a construction worker to his ever-present Merrills striding up the steps to the U.S. Supreme Court, bringing an everyman’s demeanor, some sunshine in his pockets and a barracuda mind. He’s famous for many cases – Westmoreland, Bush v. Gore, Microsoft and, of course marriage equality, in which he teamed with Ted Olson to challenge California’s ban on gay marriage. Too, he’s considered the most illustrious cross-examiner of his generation – and with good cause. He reduced Bill Gates to incoherency, and used his scalpel so effectively on the founder of the Institute for American Values, David Blankenhorn, that he became a supporter of marriage equality. Oceans of words have celebrated Boies’ accomplishments since his rise to partnership at Cravath, through a stint in Washington, D.C., and then on to his own firm, Boies, Schiller & Flexner, now nearly 20 years old. He brings to the law a rare courage bred of experience, clarity, a respect for the system that is the marrow in his bones and a vision of the law that is larger than himself. If one angle of his life has been less explored, however, it may be his more personal side – where he learned to love risk, the price he’s paid for it, its relationship to the law, and its rewards, when risk well taken pays up.

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Where better to talk risk than in a city he has loved since August 1958 when he stepped off the train on the way back to Fullerton, California, from summer school in Boulder, Colorado. The dyslexic 17-year old had 90 minutes to kill so he wandered over to Binion’s and took a look at the craps tables. He became entranced trying to figure out the odds, and how the game worked. A later train and 48 years down the road, we’re back for one of the handful of visits he makes each year. Typically with his family – whose company he relishes - and best friend James Fox Miller’s crew, they gather around the craps table like it’s a Thanksgiving turkey. “I play a little dice,” Boies says, sitting in a suite at the Wynn looking over the Vegas skyline of 2016 and contemplating the gleaming tower next door emblazoned with TRUMP in million-point font, gold, of course. “But I would be careful about dice. It’s a tricky game. The thing about dice is you’ve got all sorts of crazy things you can do but you really only want to do two things basically. One is bet the pass line. And the other is to bet the come line. And the come line is exactly the same as the pass line, it’s just a different roll of the dice.” Kind of like a big lawsuit. A roll of the dice. You’re looking for seven or eleven. “Just learn the pass line and you know everything you really need to know about craps,” he says. “It’s very relaxing.” A blue-collar kid, Boies attended college at University of Redlands, thinking he’d be a teacher like his father. From there he went to Northwestern Law School, and then Yale, from which he graduated in 1966. He joined Cravath, and took advantage of its policy of doubling vacation time used for public interest to go to Jackson, Miss., for the summer of 1967 to help with voter registration and defend the rights of students who had traveled South and were arrested. He lived in a poor section of Jackson that summer, but would play cards with both his African-American neighbors, as well as the fancy white folks uptown. Which is quintessential Boies. People are people, whether he’s talking to the president or a woman on the street. He’s interested in it all, and takes it all in, equally. Craps or lawsuits. Rich or poor. Powerful or powerless. All the same. 240

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“It’s the ability to manage risk,” he explains. “For example at the craps table you have to manage risk, you have to be disciplined, you have to be comfortable with ups and downs, you’ve got to be patient. “All of those aspects are important in law, and in life. Managing risk is very important. There are very, very few areas where you can have important rewards without some risk. And the question is always balancing the potential reward against the risk. And that means understanding the risk and being able to manage it.” One of his earliest lessons in managing risk as a lawyer came when he was given the opportunity as a young Cravath partner to try a case called “Cal Comp” in California. The firm’s top lawyers, including lead litigator Tom Barr, were swamped defending IBM against antitrust claims in the East. Boies saw a reasonable proposition that his odds of defeating a $400M antitrust claim brought by a small California manufacturer against IBM were decent, and that the upside of taking those odds should he win were enormous. [And, sidenote, Boies’ brother worked at IBM, and invented voicemail there.] If you have a legal touchstone to which you return time and again, it is Cal Comp, the first civil litigation in which you were a lead lawyer. I take on a lot of cases that other lawyers won’t take on because they think they’re risky. And I’m going all the way back to my first big commercial case, the Cal Comp case. Other lawyers before me turned the case down because they thought it was likely to lose. I saw a way to win because this was a situation where this small company, Cal Comp, was suing IBM. IBM at that point dominated the computer industry. They had cut their prices to drive a competitor out of the business and they had essentially succeeded in driving the competitor out of the business to a very large extent. And they had just lost a similar kind of case in the federal court of appeals. So there were a lot of negatives. But on the other hand, the prices to which IBM had cut its price levels were profitable. They weren’t making as much money as they had before, but they were making money. This was back in the mid ‘70s, and the argument was the purpose of the antitrust


laws is to encourage price competition and you don’t want to have a rule of law that will chill price competition. If you have a rule of law that says you can’t cut your prices below cost that’s a bright line. People can understand that. It doesn’t chill competitive behavior because there’s no real competitive reason to sell below cost. But if you’re selling above cost then there’s no bright line. How do you tell when you’re cutting your prices too low as long as they’re above cost? He won the trial and defended it at the 9th Circuit. My argument to the court, which included [now U.S. Supreme Court Justice Anthony] Kennedy – who was on the 9th circuit at that point – in fact, I saw Justice Kennedy at a birthday party a few months ago and he remembered the case. My argument was that as long as you had prices above cost, even if you had monopoly power, you couldn’t penalize somebody for engaging in what the antitrust laws are intended to encourage, which is price competition. I didn’t discount the risk, but I thought the risk was less than other people thought it was because I could see the rationale - and it was a case which if we were able to win it would drastically change IBM’s antitrust position, so there was a very large return if you were successful, and I thought you could reduce the risk from the way people thought. You’ve said you were not in the black financially until after you left Cravath. Though you made what was considered a lot of money as a partner there. And of course you’ve been quite financially successful and have the beautiful homes, wine cellar and yacht to show for it. But at the end of the day, you seem just as happy eating some bar snacks, having a few drinks and being with your family.

like that. You’re getting something for your money. A lot of bets on the table when you play craps right the house will have less than a 1 percent edge, sometimes less than one-tenth of 1 percent. Other games the house has a 3, 5 or 10 percent edge, some the house has a 10 to 12 percent edge. A lot of people bet those because it’s exciting, the odds are higher. And a lot of people bet those because it’s exciting to win from players who don’t play quite as sensibly. They’re going to build these palaces and give you these free things based on the people who don’t play quite as well. And you’re going to win or at least have cost of entertainment? So you balance your appreciation for risk-taking with the fact this is what you enjoy doing. Exactly. When I took the Westmoreland case on, again, everybody thought it was an enormously risky case. [Former General William Westmoreland sued CBS after a segment by Mike Wallace on 60 Minutes claimed Westmoreland lied about the progress of the war in Vietnam.] TV Guide, which was a very important magazine in those days had published a cover story, “Anatomy of a Smear.” They’d found the film editor of the program who cooperated with them and said Mike Wallace and 60 Minutes made up [the allegations that Westmoreland lied about the progress being made by the U.S. military in Vietnam]. It was a very, very damaging article. The press was very negative about it. But it was a case where there was a very important upside. If we’d lost not only would it have been enormously damaging to Mike Wallace and CBS, but also this was a period of time in the ‘80s when you had right-wing, conservative organizations that were trying to rein in the liberal press.

Sometimes if I’m just with my kids, we’ll just play $5 red chips. That’s fine with me. I’m not here to make money particularly. This is a bad place to make money. The house has an edge. In craps, it’s a small edge, a very small edge, but nevertheless it’s an edge. And so over time you will tend to lose money. You can sometimes win because your betting sequences will be different. You can win. But on average over the very, very long term you’ll probably lose.

And you had an organization called AIM – Accuracy in Media, and they were very supportive of this. The case itself was brought on Westmoreland’s behalf by the Washington Legal Foundation, which still exists and styles itself as a conservative public interest think-tank. If they had succeeded, I think it would have had a very serious chain effect on journalism generally because they were threatening to bring these kind of suits against liberal organizations that criticized or reported on the military. Balancing the risk and the upside, I thought it was a very important case not to lose.

To encourage you to come, they give you free rooms and comp restaurants and shows and stuff

I also had a theory that was never ultimately tested because we won the case in conventional ways. My

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theory said that any high public official, president, vice president, commander in chief of the military in war, was libel proof. Anything you said about them in their official capacity they could not sue, even if you could show knowledge of falsehood. You could not sue them. And the theory was that they have immunity from defamation suits. If Westmoreland had said something about Mike Wallace, Mike Wallace could not have sued him even if it were defamatory and even if Mike Wallace could have proven it because they have an absolute privilege against lawsuits. And my argument was it should be reciprocal. We moved for summary judgment and no one had ever made this argument before. And the Judge said, “I’m not going to decide this prior to a trial.” He didn’t disagree, or agree, he just said, “It’s interesting and I’m going to wait until after I’ve got a full record to decide.” But I think if it had gone to trial and we’d lost on conventional theories, that approach minimized the risk in the case. There’s a pattern in the sense that I will sometimes be more inclined to balance the rewards against the risks. And I will also try to find ways to manage the risks, to minimize the risks. It’s interesting to examine the way you’ve pulled apart your cases, and the strategies you’ve taken. It strikes me that a key to a great trial lawyer’s success is that the case can never be about you. It sort of is and sort of isn’t. It may be a little unusual among trial lawyers. You see trial lawyers tend to have large egos. In some sense it’s hard to do what you do. I’ve said this to young associates: You either have to have an enormous ego or no ego. Because either way you don’t care what people think. The important thing is not caring what people think about you. What you want is people to think you’ve got a good case, you want people to think that you’re right, you want to persuade people, but what you shouldn’t care about is what do they think about you. If you don’t care what people think about you and you only think about your case that helps you win. And if you win, people think better about you. How do you do that when you walk into court as America’s most famous trial lawyer? What you want to do when you get finished – a lot of lawyers want people to think “that was really 242

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a great lawyer.” What you really want people to think is “that lawyer was really lucky, he had a really strong case. He had a case anybody could have won.” Because you make your case look so good. You want to package your case so that you are simply putting out the facts and the judge and the jury is coming to their conclusions. You are the messenger. And they’re almost coming to their conclusions in spite of you. What you want them to do is not to focus on you. As you know I dress kind of consistently. It’s comfortable. I’ve always been that way. During Cal Comp, we had a shadow jury, but I didn’t get this feedback until after trial was over and we interviewed actual jurors. I wore the same suit, the same tie and almost the same shirt every day. The women on the jury – both the women and men noticed it. The women didn’t like it because they were suspicious of it. They said “Mr. Boies seemed like such a nice person but I worried that maybe he wasn’t genuine because he’s obviously successful, he’s IBM’s lawyer, obviously can afford a lot of clothes and he wears the same tie over and over again. I worried that he was trying to make us think he was just an ordinary person.” The men had a somewhat different reaction. Some of the men didn’t notice. The men that did notice tended to say, “He’s just so interested in the law he didn’t care about clothes.” But enough people on the jury were suspicious of this because it was unusual. Even if they weren’t suspicious, they were distracted by it. And you don’t want a jury focusing on your clothes. I thought up until that trial, that my clothes because they were so ordinary would be good because people would not be focusing on them. But in fact they were too ordinary. And so, after that when I have a jury trial, I will buy 6 or 8 ties and I will change them off so that there’s nothing to distract. I still basically wear the same suit, but that doesn’t seem to bother people because they’re used to lawyers in dark blue suits. But I’ll change my tie so that I’m not doing something that makes the jury think about me as opposed to think about the case. Or how I talk. I will tend to be relatively soft-spoken. I won’t get real emotional. I will sometimes use emotions. And because I’m generally unemotional and soft spoken, when I do use emotion and I speak a little sharply, people really pay attention. But your goal is when you finish cross examination


I’ve watched you in court several

times...like viewing a fox in his lair...

...pick up a document, and then strike. you don’t want them to think, “Boy, that was a really great lawyer, he really whipped that witness.” What you want them to think is, “Gee, that witness was just so untrustworthy, so unreliable.” You want them to focus on what you’re accomplishing, not on you. You don’t want your judge or jury, your jury in particular, to think, “David Boies is a really great lawyer.” You want the jury to think, “David Boies had a really easy case.” Many lawyers go into court relishing the opportunity to go destroy a witness, for example they put themselves into the battle. Obviously, you do that too, in some sense, but you do not present it as a contest between you and the witness. Right. It’s much more effective. The harder the case you take on, the more important it is to do that. Because I think the more you’re trying to get people to accept something that is not necessarily counterintuitive, but contrary to expectations, you want to be plain, you want to be clear, you want to bring the jury along so that they believe you trust them, that you’re not trying to put something over on them. You’re relying on their judgment, their common sense. You are trusting them. You’re not asking them to trust you. I’m trying to persuade them on their terms. I’m trying to make them come to that conclusion. The best illustration I have of this is my cross-examination of General Westmoreland at the trial. This is in the middle ‘80s at a time when the country is returning to patriotic themes. It’s the time of the Rambo movies, it’s the time of Ronald Reagan. The anti-Vietnam sentiment in the country that existed in the ‘60s and ‘70s has now turned and people are patriotic, they are suspicious of attacks on the military. You have in Westmoreland, who at the time was in his middle 60s – he’s 6’ 2”, ramrod straight, handsome, white hair, just the epitome of a general, he’s somebody who had spent his entire life serving his country. I’m

42 when the trial started, and I looked younger. And I had to convince the jury that this patriot, this sort of grandfatherly figure was lying. If I had torn into him - if I had made this a battle between David Boies and William Westmoreland, nobody was going to be on my side. Or if so it would be very few. So what I had to do was I had to make the jury uncomfortable with him before I evidenced any discomfort. I started the cross examination enormously respectful. I would say to him, “General Westmoreland, you said this and I’d just like to ask you about this document which superficially may appear a little inconsistent, but I’m sure there’s an explanation for that. And can you explain how you reconcile these two things?” And he would give me an answer, and I’d say, “Thank you,” and I’d move on. And I’d do that again and again. Over time you could see the jury begin to be a little uncomfortable because there seemed to be so many contradictions and when he gave an explanation that didn’t really fit I wouldn’t attack him for it. I’d either just move on or say, “Let me see if I understand what you’re saying, you’re saying this, … and that’s the explanation? Yes, ok.” And I’d move on. The second day I’d pick up the pace a little bit more and a little bit more and by the end of the second day he was so tense his back went into spasms and we had to take off a couple days. But you had to be patient and you had to let the jury reach the conclusion on its own. Before you could accuse him of lying, of not being straight, you had to get the jury to begin to be uncomfortable with him, to sense there was something wrong, to be unwilling to accept his explanations. I’ve watched you in court several times crossexamining witnesses and it’s a little like viewing a fox in his lair – you get the slightest squint in your

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eyes, amble about a bit, go pick up a document, and then strike. We both remember the divorce of Los Angeles Dodgers owners Frank and Jamie McCourt, in which you represented Jamie and had a devastating cross-examination of a longtime corporate lawyer to the McCourts about an important document. I will rarely be rude to a witness. In the McCourt case, I questioned a Bingham partner who had represented Frank McCourt. I was accusing him not only of lying but also of falsifying documents to help Frank McCourt. And it was very clear he did it. By the end of the examination he was even saying, “I don’t remember doing it, but I must have. I don’t have any other explanation.” Even there, although I got sharp with him a couple of times, because he was clearly not being responsive, I tried to be civil. That’s another lesson I learned from the Cal Comp case. The plaintiff put on an expert witness relatively late in the case, a guy named McGovern. He misrepresented stuff and I had him cold. I just destroyed him on the witness stand. We had this shadow jury and that night they debriefed the shadow jury and of course the shadow jury doesn’t know who they’re working for. The reports came back that they were very disturbed. They said, “We’ve always so liked and respected Mr. Boies, but he was so mean to Mr. McGovern. We couldn’t understand why he was being so mean. Yes, McGovern made mistakes but everybody makes mistakes.” And what I realized is that I had seen where those mistakes were, that I was telling the jury those mistakes. I was confronting him with those mistakes, but I hadn’t laid the groundwork, I hadn’t gotten them ready to accept that this person was lying. And so when I sort of destroyed him, they saw me destroying someone they weren’t prepared to say was lying, that they felt he had just made mistakes. And that was a very powerful lesson - that you need to be sure that you don’t get ahead of your skis, ahead of the jury. Let the jury lead you, don’t lead the jury. You have to teach the jury, you have to make the jury lead you, but you have to do so in a way that allows them to come to the conclusion on their own. You can help them, you can be their guide, but they have to reach that conclusion. You were just 35 when you learned that. We both know lots of 60-year old lawyers who still haven’t learned to get our of their own way. 244

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I had a number of advantages. One advantage was my civil rights experience. Representing civil rights workers in the mid ‘60s in Mississippi taught you a lot of things. It taught you patience. You couldn’t just storm into court, even when you were right. You had to deal with hostile judges and juries. I remember a case I had in Lexington, Mississippi. I went up there from Jackson to represent two African-American [Student Nonviolent Coordinating Committee] workers who had been arrested for not having Mississippi driver licenses, and then beaten up by police and charged with resisting arrest. It was a judge trial on resisting arrest. If I had simply gone in and accused them of police brutality, I would have turned this judge off. The judge kept referring to Billy Joe Gilmore, the town constable, as Billy Joe. It was a small town, everybody knew each other. I was this young kid from New York who came down to stir up the colored folks and you had to pick your way very carefully if you were going to have any chance to get the clients off. It also taught you there were a lot of cases you ought to win that you’re not going to win. If you go in and do the very best job you can and lose, you go back the next day. Even the cases we lost, having people be represented and making people go through it made the police less willing to make irresponsible arrests the next time. Very marginally. There were very, very few great victories, but you made very incremental progress. It teaches you patience and teaches you how to deal with judges that are against you and small-town juries. I was also very fortunate in terms of my early development. We tried the Telex case in Tulsa, Oklahoma, in 1972. [Telex was yet another regional competitor that sued IBM for antitrust violations. Telex won a large jury verdict, but IBM won on appeal.] I had just turned 31 and was still an associate at Cravath. I cross-examined two of their key witnesses. And then to have the opportunity to try the Cal Comp case was the kind of thing you can’t engineer for yourself. That’s just pure luck. I had the opportunity to do a lot of things that I think brought me along relatively quickly. Still, it’s hard to think that it’s 30 years this year since the New York Times magazine article [“The Litigator, David Boies, The Wall Street Lawyer Everyone Wants,” a 10-page spread, in which he was featured on the cover]. Partly time goes by so fast, but also it’s jut unusual


in any endeavor to have the opportunity to perform at that level with these kind of cases for that long. You left Cravath 10 years after that article to form Boies Schiller. You were reportedly considered a bit of a renegade at Cravath. Is Boies Schiller more of an expression of who you are? Leaving Cravath and forming Boies Schiller really was a second lease on life. It was powerfully energizing and it enabled me to create a firm that was the kind of firm that I always wanted and always believed every firm ought to be like. Where people are entrepreneurial, collegial, taking on important cases, taking risks, prepared to take on difficult cases, prepared to go in and risk losing. An awful lot of lawyers, particularly at the top of the profession, don’t want to lose. They don’t want to take any risk of losing. If you’re not prepared to lose, you can’t take on the important cases. You can’t take on the tough cases. The reason cases are important is because they’re uncertain. Whether Cal Comp, Westmoreland, Microsoft, marriage equality or Starr v. U.S. All those cases are important because there’s a principle. But they are also important because you can’t predict the result in advance. If it were a lay down it wouldn’t be important. Let’s talk about taking on perceived wisdom, and cases perceived to have long odds. You and Ted Olson brought suit against California’s Prop. 8 claiming it was unconstitutional to discriminate against gay and lesbian couples who wanted to marry. And you brought the suit with a highly unusual motivation – you wanted to put restrictions on who could marry on trial. Marriage equality was one of those things where I was so convinced we were right. And yet everybody said we were wrong. Everybody - including the people who had spent their lives fighting that battle, ok? And I can remember when Ted came to me I immediately said, “Yes.” And after that it became clear how strong the opposition was. And I kept going back and thinking, “Am I missing something? What have I missed?” You had to respect that judgment. It was from people who knew far better than I about these battles. It was just like Westmoreland. When I took the Westmoreland case on, all the quote First Amendment lawyers, the libel lawyers, said, “This is

a loser.” And then when I made a point of defending the case on truth, everybody said, ‘There’s Boies, he just doesn’t understand. You never defend on truth, you always defend on actual malice.” I remember there was an article in New York Magazine or Business Week, with a picture of me and the caption was, “Has Boies Fallen Into a Truth Trap?” Connie Bruck in the American Lawyer wrote an article that all First Amendment lawyers were critical of my emphasis on proving the truth of the broadcast. The falsity of the broadcast was assumed after the “Anatomy of a Smear” article. On the other hand, if we had won that case on absence of malice, while we would have won the case, Mike Wallace’s reputation, CBS’ reputation would have been enormously damaged. And besides, the broadcast was true. It was thoroughly researched, it was supported by the testimony of numerous former officers, people who had devoted their entire lives to serving their country, people with absolutely no incentive to make that testimony up and every incentive not to testify. And while there were editing choices people could debate, the fundamental premise of the broadcast was accurate. And I was convinced I could demonstrate that. But the experts were totally disapproving. And that was true even more in marriage equality than Westmoreland. I really took that seriously. These were people I had enormous respect for, who had fought for marriage equality for years and for many of them it was personal. And it was a judgment call, not a mathematical formula. It wasn’t something anybody could prove. And you really wanted to get it right. And every time I went back to think about it, and I kept thinking, you know, “I’m right and they’re not.” And I went back and re-read and re-read Justice Kennedy’s opinion in Romer v. Evans and went back and read the opinion in Lawrence v. Texas. Every time I read it my view was, “Scalia’s right” [in his dissent in Lawrence]. No matter what they say they’re not deciding, the principles here inevitably take you to marriage equality. Once you have said that you can’t make moral judgments, you can’t discriminate against people based on their sexual orientation, I think it had to follow that states could not bar people from marriage just based on their gender.

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Sometimes you can actually

take what the other side thinks

is their good argument and make that your argument.

I also believed that just the process of Ted Olson and me taking this fight on was going to move the public debate even if we lost in court. Even if we lost in court, this was going to take this issue out of sort of the specialty area, which is where it was, and make it a mainstream issue. We made it into a civil rights issue and the combination of how well known the two of us were, how different the two of us are, all of that contributed I think to a view that said this is a mainstream issue. And I thought that was going to happen even if we lost. And after the Supreme Court argument, and we didn’t know how it was going to come out, you still saw the way people were talking about the issue. And they were talking about it entirely differently than they’d talked about it four years earlier. That case changed the world. Marriage equality is now the law throughout the United States, where there were an estimated 780,000 same-sex married couples as of 2015, and is also recognized in 21 countries worldwide. You’ve always given credit to the many advocates who came before you and to the work so many people did in making marriage equality a reality. But I think it also underscores one of your hallmark lessons: Find the truth in every situation. And we did that partly inside the courtroom and partly outside of the courtroom. You always go back when people who know a lot about something and who you respect tell you that you’re wrong and tell you quite emphatically that you’re wrong. It always makes you think. And that’s a good thing. Because it did make us think, and it did make us more careful, probably. The thing is to find the truth. If you can’t find a truth 246

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that will let you win you’re not going to win. The first step is to find the truth that helps you win. The second step is to make that truth known. Make that truth accepted. But the first thing to do is to find the truth you can win on. You’ve got to have a ground that is so strong that you can sustain it. That nobody can push you off. It doesn’t matter how long they have, what resources they have, how smart they are, there is nothing they’re going to be able to find that’s going to destroy that truth. The core truth of the case. And that’s what you build. For example, in Cal Comp, the core truth was that these were above-cost prices, ok? And sometimes you find that core truth is something that other people aren’t paying attention to because they don’t see it as core; it may be true, but they don’t see it as core. They don’t see how that truth can help you win. So part of it is identifying that truth. I’ve said a lot of times if you’ve got a short trial – one or two day, sometimes maybe a four-day trial – you can sometimes win with a lie. And that’s because maybe the other side doesn’t have the time, doesn’t understand it soon enough, isn’t able to respond to it. In a long trial, you can only win with the truth. Because the other side has all the time in the world to find out everything that’s wrong with it. A lot of times lawyers want to hold things back because they’re afraid if the other side has it ahead of time or too early they’ll find things wrong with it. I almost always in a case will in my opening statement say, “Here are three documents, three charts, four exhibits and you’re going to hear about these until you are so tired of hearing


about these. But these are critical. These are absolutely critical. And if they can find something that’s wrong with them, then maybe you ought to decide for the other side. But I tell you you’re not going to find anything wrong with them because they’re true.” Can you talk a bit about one of your riskiest maneuvers – taking your opponent’s argument as your core truth? Sometimes you can actually take what the other side thinks is their good argument and make that your argument. Almost a quarter-century ago, I defended Westinghouse in a case where they were alleged to have bribed Ferdinand Marcos, the dictator of the Philippines to get a large nuclear power plant contract. We were being sued by the Aquino regime that had come in after Marcos – and they were trying to nullify the contract and void it on the grounds it had been procured by fraud. The contract had already been performed so if they voided it they got their money back and Westinghouse got a pile of concrete and wire in the Bataan Peninsula that was worthless. So this was a bet-your-company case for Westinghouse. The theme of the Republic’s complaint was that Marcos had been this absolute dictator, he was evil and avaricious, was in total control of the country, nobody could do anything without his permission and he could take whatever he wanted and he took a piece of every public works project The theme of my opening was that Marcos was an absolute dictator. He controlled everything that went on in the country, he took whatever he wanted, he wasn’t constrained by the rule of law. I just exactly matched everything they said. Their conclusion from that was “and he therefore must have been bribed to get this contract because otherwise we wouldn’t have gotten the contract.” And my conclusion was that as someone who has total control of the country and owns the country, he doesn’t need to take a fee for the contract he can just take whatever he wants. That theme followed all the way through. The day Marcos fled, he took a truck, backed it up to the mint in Manila, filled the truck with newly printed pesos and took it with him on the plane. My theme to the jury is somebody, who any time he wants, can back a truck up to the mint and

take as many pesos as he wants, doesn’t need to get bribed. He doesn’t need to stoop to that. He’s got an automatic bank account that gives him as much money as he wants. He has an infinite amount of money. That truth was a truth that ultimately enabled the jury to decide for us. Because they didn’t have to conclude that Marcos was a good guy or even a marginally honest person. In fact, the more they thought he was a bad guy, but very powerful, the more it reinforced that he didn’t need to do this. That was another case everybody thought we were going to lose. How could you defend Marcos? We had terrible documents, just terrible documents. They’d hired a guy named Herminio Dicini as their agent. Herminio Dicini knew nothing about nuclear power plants. He was Imelda Marcos’ cousin or dentist or something. Westinghouse paid him $40 million. The other side had documents where Herminio Dicini came and asked for more money and said he needed more money because the $40 million had all gone to the quote big guy. He didn’t have any money left over for himself. At one point it looked like the contract was going to be awarded to General Electric. So the head of the Westinghouse operation in Manila cables headquarters in Pittsburgh and said, “Storm clouds are on the horizon.” It talks about how, “We’ve been told we had a lock on the contract, now it seems like maybe GE has it,” and, ‘It seems you can’t trust anybody to be dishonest anymore.” These were terrible, terrible. terrible documents. A lot of lawyers advising Westinghouse wanted to defend the hiring of Dicino and wanted to say all Westinghouse wanted was a level playing field. Our competitors were hiring friends of Marcos, we just wanted to win on the merits. But that wasn’t consistent with the documents. What I was saying is we hired this guy as our lobbyist. We wanted him to lobby Marcos so he’d give the contract to us. We wanted to win. We didn’t want a level playing field. We were trying to tilt the playing field our way, that’s what you use a lobbyist to do. It’s risky, but true. It was ground you could stand on. And it was consistent with all the documents, where they’re trying to get unfair advantage, trying to screw the other side.

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I said, “We didn’t make this world. We don’t necessarily even like this world but that’s the world it was in. And if you were going to do business there that’s how you had to do business.” One of the hardest things I had to do in that case was figure out how to describe Herminio Dicini. Everybody wanted to call him their agent. But he wasn’t an agent. He didn’t know anything about nuclear power plants. And I finally decided he was a lobbyist. Nobody likes lobbyists. Everybody knows lobbyists are sort of sleazy but everybody uses them. And they’re legal. So if I could get the jury to think of him as our lobbyist as opposed to our bagman, that was a way of explaining all the documents and yet doing it in a way that helped the jury come to the conclusion that whatever our use of him was it wasn’t bribery, it wasn’t something illegal. You’re trying to find the truth that will help you win. It’s got to be true. And it’s got to help you win. You’ve got to find something that’s a basic truth. You can’t win an important long case without basic truths. And you’ve got to find them. And you’ve got to find a way to prove them to a jury, to a judge and ultimately to an appellate court. You’ve seen so much in your 50 years of practice. And you seem today as passionate about the justice system as the day you started practicing. That’s what makes it challenging, exciting, worthwhile. It’s what enables you to use the law to make our society better, to make it more just. This is a justice system. The legal system is a justice system. It’s designed to do justice. Lots and lots of times it doesn’t. Lots of times it fails to do justice, lots of times it is an agent of injustice. But it always has the capacity to do justice. And the more that we’re prepared to try to make it an agent of justice, the more we’re prepared to take on the difficult cases, take on the challenging cases, devote the resources to it and do it in an intelligent, strategic way, the more we can make the law fulfill its promise. It requires a combination of idealism and really tough tactics and strategy. It is the ability to be tough, to be aggressive, the ability to be tactical but to do it in an ethical way, in a way that respects the truth and to do it in the service of important causes. In the marriage equality litigation, we spent a lot of time cross examining people to bring out the truth. 248

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And that required a lot of preparation. The fact that you’re right doesn’t mean you’re going to win. It has to be the right person saying the right thing and packaged right. You’ll spend maybe two hours in a deposition maybe getting a one-line quote. One of the depositions was up in Toronto of one of their religious experts and she was a professor and she started off making some claims in very universal terms. I then spent 25 minutes taking her through a whole series of things she didn’t know that were marginally relevant but things she didn’t know. The fact she didn’t know them wasn’t really that central but what it said to her is, “I better be careful about stretching the truth here because I’m beginning to look bad. I better be careful about dissembling.” And so she became more willing to give the things she ought to be prepared to give. If you just went after things that were absolutely essential, you wouldn’t be able to prepare the grounds, you wouldn’t be able to prepare the witness. You wouldn’t be able to get the witness in a state where the witness is uncomfortable about how they’re appearing so they want to tell the truth. It’s interesting to watch you destroy people. You bring a rare emotional intelligence to your craft, where you parry with either a softness or a sharpness, playing nice or professorial. But underneath, there is always an ice-cold calculation of the use to which you are putting a witness for your cause. I’m unusual to some extent. Because I think people tend to be more emotional in their implementation, in what they do, in their performance. That has to do with a variety of things. Part of it has to do with how they want to be perceived, part has to do with the illusion that they are in a real life situation. You’re not in a real life situation. You’re in a morality play. You’re an actor in a morality play. Your emotions are the emotions that are befitting the role you’re playing. For example an actor in a play isn’t emotional about the role. Their emotion is designed to fit the role. When you’re in court, you need to realize you’re not in your life. This is not your life. You are creating something as a medium of expression. You are communicating. You are a messenger. You are a medium of communications. You are functioning as part of a morality play that’s designed to convince, persuade, enthuse, motivate people. But this is not your life. This has nothing to do with me.


The fact that somebody in court is

trying to hurt me doesn’t make me mad. That’s their role. I know that’s what

they’re trying to do. That’s the process. When you walk out of the courtroom and go home at night? That’s your life. For example, I can show impatience, I can be sharp occasionally, I can even be loud occasionally, not very often, but there’s nothing they can do in that courtroom that will make me mad, there’s nothing they can do in that courtroom that will make me happy, sad, nervous, offended, A, because it’s not me, and B because they’re not them. They are also participants in a morality play. It’s like Siegfried and Roy with the tigers. They don’t get mad at the tigers. The tigers maul them occasionally. They don’t get mad at the tigers. That’s their nature. You deal with wild animals and it’s their nature to hurt you. The fact that they are trying to hurt you shouldn’t make you mad. The fact that somebody in court is trying to hurt me doesn’t make me mad. That’s their role. I know that’s what they’re trying to do. That’s the process. That’s how we do justice. In civil law societies where you have investigating magistrates, they’ll bring people in and it won’t be an adversarial process. That’s how it should work if we had philosopher kings - if you had perfect ways of discerning truth and implementing rules. But we don’t. And because we don’t, I don’t think anybody’s come up yet with a better way of getting at the truth and getting at justice than the adversarial system and until we do - if you believe in justice - you’ve got to try to do justice in the context of the adversarial system. And that means being prepared to do the things that you have to do in the adversarial system to make your point, get your point across, to the judge and the jury, to perform your morality play.

Our justice system is only as good as what everyone involved contributes to it. Whether in a case with a ton of money or advocating civil rights for many people, we hear about the justice system as someone prevailed in this case … or lost … but it’s an enormous roving morality play where we all get something Everyone needs for it to work. Everyone needs to play their role. And you have to be prepared to take on roles, to take on causes that are hard, are risky. That you can lose. And you’ve got to be able to lose really important cases, like Bush v. Gore and the next morning show up at a court. That’s not always easy to do. Because no matter how well you try, you always wonder whether there’s something else you can do. But you have to be able to put that behind you. Learn from your mistakes, learn from your process and then move on. I saw [Gore’s Vice Presidential nominee and plaintiff lawyer] John Edwards in court in the Volkswagon cases. He was saying Al Gore asked him to go to the Supreme Court and listen to the argument in Bush v. Gore. Afterward he and Bill Daly were talking to Gore about the argument. Edwards said, “Boies was talking like a lawyer, they made this argument, we responded this way, we had this good argument.” And finally Bill said, “It doesn’t make any difference, we’re going to lose. I can count votes. There are five votes that don’t want you to be president, there are five votes that want George Bush to be president.” That’s too bad, but sometimes that happens. Just like defending civil rights protestors in the south. But that teaches you. Sometimes it’s the process, not the outcome. Shall we go play some dice?

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Advocates for Workplace Fairness

Congratulations to Wayne Outten, Adam Klein, and Wendi Lazar for inclusion in the 2016 Lawdragon 500 Leading Lawyers in America

Outten & Golden focuses on a global scale on advising and representing individuals and groups in employment, partnership, and related workplace matters. The firm counsels individuals on employment and severance agreements; handles complex compensation and benefits issues (including matters involving I.R.C. Sections 409A and 280G, bonuses, commissions, and stock and option agreements and awards), and advises professional partners (including accountants, doctors, and lawyers) with contractual and strategic issues.

Our nine practice groups

It also represents employees with a wide variety of claims, including discrimination and harassment based on sex, sexual orientation, gender identity and expression, race, disability, national origin, religion, and age, as well as retaliation, whistleblower, and contract claims. Outten & Golden is also at the forefront of family leave issues and veterans’ workplace rights. The firm handles some of the largest class action and impact litigations in the United States involving a wide range of employment issues, including economic exploitation, gender- and race-based discrimination, wage-and-hour violations, violations of the WARN Act, and other systemic workers’ rights issues.

• Class & Collective Actions

• Executives & Professionals • Financial Services • Sexual Harassment & Sex Discrimination • Family Responsibilities & Disabilities Discrimination • Lesbian Gay Bisexual Transgender & Queer Workplace Rights • Discrimination & Retaliation • Whistleblower Retaliation • WARN Act Wayne N. Outten is the Co-Founder and Managing Partner of Outten & Golden and Co-Chairs its Executives & Professionals Practice Group. Adam T. Klein is the Deputy Managing Partner of Outten & Golden and Founded and Co-Chairs the Firm’s Class Action Practice Group. Wendi S. Lazar is a Partner of Outten & Golden, Co-Heads the Firm’s Individual Practice Area, and Co-Chairs its Executives and Professionals Practice Group.

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