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The Litigators

by Paul Bernstein
harles Vogel '59, a litigator with Sidley & Austin, likes to tell the story of the policeman in Central Park who observes a man throwing bread crumbs on the sidewalk. "If you read the sign, sir, it says, 'Do not feed the pigeons,''' says the policeman. "I'm not feeding the pigeons," says the man, summoning indignation. "I'm feeding the sparrows. And I can't help it if the pigeons are horning in." To which the policeman can only shake his head and mumble the familiar refrain: "Everybody's a lawyer." Eminences as gray as Chief Justice Warren Burger have been joining in on the refrain of late, pointing out that we have more lawyers per capita than any country in the world while our law schools continue to produce more and suggesting that perhaps the time has come to levy penalties on lawyers who insist on pressing "truly frivolous" cases. A sampling of top litigators from the list of UCLA School of Law alumni finds little argument that there is too much litigation, some of it frivolous. But six of the nine represented here consider themselves commerciallitigators, and find that field remarkably free of the excesses noted elsewhere. One reason is its complexity. "It's hard for me to imagine how a judge or jury could understand in six to ten weeks all the details of how a digital computer is constructed and how the industry works and what the economic effects are of a particular move," says Thomas McDermott '58, a litigator with Kadison, Pfaelzer, Woodard & Quinn who managed to learn all that himself while preparing to try a massive case in the late 1960s involving computer system design. "After you've been working on the case for three years, you and the lawyer for the other side know more about the case than any human being is ever going to know. So if you can't settle it,

there's either something wrong with the lawyers or there's something wrong with the client or there's some principle at issue that has to be resolved or it's a very, very close question. And even close questions can be resolved and compromised. I think that most good commercial litigators get their cases settled. They do it because both sides clearly understand the risks involved and arrive at a figure that is a reasonable compromise." The intricacies are what make commercial litigation a challenge for McDermott, a past president of the Association of Business Trial Lawyers. For instance, he currently represents a developer of large, independent communities in several consumer protection cases, for which he has had to delve deeply into the law of municipal finance and organization. He represented the Retail Clerks International Association in an effort to place Washington's local 770, then the largest local union in the country, in a receivership, a case he remembers for its complexity. McDermott spends most of his time on motions, depositions, document production, and structuring of litigation and settlements. "I could not function without what I learned in law school,' he says. "At least when I went to law school, I thought it was taught just the way it ought to be taught." Occasionally he wishes he could be in trial more often. "You're sort of betwixt and between," he says, not too wistfully. "On one side you say, 'Sure, I'd like to have more trials.' But would I really be doing the job I'm supposed to if I had a lot of trials? The answer to that is no, absolutely not. To resolve a case and settle it fairly should, in my opinion, be the aim of the commercial litigator."
Paul Bernstein, a free-lance journalist, has written for The New York Times Magazine, Los Angeles Magazine, New West, and other periodicals.

Thomas McDermott '58
Commercial litigators get to trial so seldom that some do not even consider themselves trial lawyers. Says Marsha McLean-Utley '64, a litigator with Gibson, Dunn & Crutcher and the incoming president of the Association of Business Trial Lawyers, "1think we are a different breed than lawyers who do a lot of personal injury work, and their recognition of that is that they have formed their own association." As one of six partners working on six distinct issues of Memorex v. IBM, which lasted six months, McLeanUtley became a computer authority; while working on litigation that grew out of the Baldwin Hills dam disaster several years ago, she had to learn a great deal about oil drilling and geology. It's not just sweet dispositions that enable commercial litigators to settle more often than litigators in general. "In a commercial business entity," explains McLean-Utley, "management quickly realizes that it is not just the attorney fees they're spending. A great many of their employees and management people are spending their time on litigation to the exclusion of managing the business and making a profit. So they are much more inclined to concentrate on attempting to resolve their strengths and weaknesses and achieve a compromise so thev can go back to doing the business they're best qualified for. For a plaintiff in a personal injury action. it's more and more difficult to achieve a settlement because everybody is looking at that possible $4 million punitive damage." McLean-Utley suggests that commerciallitigators have learned one thing that might help other litigators settle more often-"making sure the client is aware not only of the strength in his case but of the weaknesses, from the beginning, and making sure the client is aware of the risks. "1 think law school gave us all the requisite processes to get prepared, but it's important to have some on-line experience in the fundamentals of trial procedure:' she says. After graduating from UCLA School of Law, McLean-Utley spent a year as a swing clerk for Justices Roger Traynor and Matthew Tobriner of the

Marsha Mcl.ean-Utley

Pomona and a Superior Court judge in Los Angeles with a tour of duty on the Court of Appeal, he wrote the opinions in the Onion Field and Manson-Tate-La Bianca cases. Now back in private practice for five years, he finds the advantages to a practicing lawyer of having served on the bench exaggerated. "I think it's believed to be a greater advantage than it is. You have some insight into what it is the judges are looking for, although I know of lawyers who seem to have obtained that insight without ever having been on the bench." In 1977, he left the Superior Court to join Nessaman, Krueger & Marsh-and, within five weeks, was in court on a highly publicized challenge to Califor. nia's usury laws, later made moot by the passage of Proposition 2. While with that firm, he successfully defended Judge Paul Egly against an attempt by Bustop to disqualify him in the Crawford case and became involved in a number of environmental litigation cases. He joined Sidley & Austin in 1980, and there continues to pursue his environmental

California Supreme Court. There she saw the genesis of a philosophical shift that has had widespread ramifications. "I thought Tobriner was one of the finest men I ever had the privilege of knowing and Traynor was also a very serious jurist. Tobriner was very warm, very compassionate, had a great heart, a great feeling for people who were less advantaged and believed that those in society who had advantages owed an obligation to the less advantaged. Matthew Tobriner was a very strong believer that one of the functions of the judicial system was to provide remedies for persons who had suffered losses. Spreading the risk is an old tort concept, but now we're seeing more and more causes of action being developed. As a practicing lawyer, I am distressed to find that legal princi ples which I believe had substantial policy reasons for their initial creation and enforcement for many years are being whittled away out of a desire to enlarge and provide greater vehicles for recovery." Charles Vogel has also seen litigation from both sides of the rail. As a Municipal Court judge in



Charles Vogel '59
interests as well as participate in their entertainment law work. "As I listen to myself, I've had a fairly eclectic kind of practice," Vogel reflects, in a deliberative, nononsense style that must have terrorized unprepared lawyers when he was a judge. "I seem to have followed a pattern that I had on the bench, which was to have the opportunity-which I think really makes the law an exciting career-of learning something about a lot of things. I guess that's contrary to the contemporary view of what lawyers should be doing -specializing." Fresh out of UCLA School of Law in 1955, Vogel quickly discovered what his books on evidence had left out. In his first case, he went to trial not knowing that the prosecutor had a signed confession from his client to a charge of oral copulation. Unfazed by this slight setback, Vogel began to call his witnesses-an illumination engineer, an ophthalmologist, and a meteorologist-and argued that, under the lighting and weather conditions present when the crime occurred, the arresting officer could not have seen what he said he saw. The jury voted 11-1 for acquittal and the district attorney dismissed the case. But Vogel found, after paving his expert witnesses for their time, that he had learned another valuable lesson. He had used up his entire fee on the witnesses. William Vaughn '55, a litigator with O'Melveny & Myers, had a similar learning experience in assembling evidence. While working his way through law school as a private investigator, he was assigned to investigate an accident in which a worker fell into a supposedly unbarricaded hole on government property. The worker claims the accident had occurred at night, that the area was improperly lighted, and that his attention was distracted by a baseball game on the adjacent field. The enterprising young Vaughn made a few phone calls and discovered that the baseball field had no lights. He rushed into the boss's office to announce that he had broken the case open, that the accident could not have occurred at night if the man was watching a baseball game on the

William Vaughn '55
unlighted field. "Who gave you the information?" asked the boss. "Some guy up there I talked to at the Air Force base," answered Vaughn. "Well, how are you going to prove it in a courtroom?" Says Vaughn, now older and wiser, "I stopped and I realized immediately that you have to have the names of witnesses and you have to be able to establish the circumstances. It was a bitter lesson." He credits his experience as a private investigator with teaching him how to assemble evidence, and laments the fact that many law students today deny themselves that kind of training. "That's the way the game is played today. Law students look for summer jobs in the hope of attracting attention for ultimate employment. It wasn't the case back then." A full bookcase in Vaughn's downtown office is filled with transcripts of the lOO-day trial he conducted in Transarnerica Computer Co. v. IBM, now in appeal. At the end of seven months in San Francisco federal court, representing IBM, Vaughn says he had

determined once and for all his physical and intellectual limits. Those limits have also been tested on behalf of CBS, when the Smothers Brothers sued (unsuccessfully) over cancellation of their television show. Vaughn has been with O'Melveny & Myers since he graduated from law school, with the exception of a stint in the Army. (His draft notice and the notice that he had passed the bar arrived in the same mail; "I went out and got very drunk, and to this day I don't know what the principal motivating force was.") He describes his original job interview with O'Melveny & Myers as "love at first sight," an evaluation that has not apparently dimmed. "One of the things I like about the practice of law here is that basically all of us who do litigation feel that the fundamental skill is advocacy and that it can be applied in many different areas." Benjamin E. "Tom" King '56, a litigator with Buchalter, Nemer, Fields, Chrystie & Younger, has also applied his advocacy skills in many different areas of commercial litigation, including unfair competition,

Benjamin E. "Tom" King '56
trade secrets, computer technology, fraud, defaulted loans, and eminent domain. In his spare time, he has written articles on travel and the outdoors for such publications as Travel, Sport, Summit, and Carte Blanche, as well as a book on mountaineering, In the Shadow of the Giants, published last year. He is currently at work on a mountaineering accident case he thinks may be the first such case ever brought in this country by one private party against another (as opposed to a landowner, a school, or a manufacturer). His client is accused of causing injury to the plaintiff by knocking a rock loose. Though King, partly because of congested courts, no longer tries even the six cases a year he used to, he concedes that the country is litigation-happy. "This town is litigation-happy. They have causes of action now that probably scarcely existed when we were in law school. Class actions, securities act violations, product liability have been extended over the years. Plus, in a large city, you have the natural tendency of, 'To hell with you, I'll sue you!' I'm not saying it's wrong, but it's happened. In Japan, as I understand it. they don't have too many lawyers and it's traditional not to litigate your disputes. I think they stick to their agreements. I think they consider it somewhat of an embarrassment to have to litigate their disputes, whereas here it's no embarrassment at all. I think lawyers have an obligation, which we sometimes default on, not to file cases that don't belong. But who's to judge that? A big city like Los Angeles tends to be not founded so much on traditional values. There's a lot of new people coming through and people moving, so there's no particular inhibition about suing your neighbor, because you don't know your neighbor." The big city of Los Angeles has the entertainment industry to keep litigators like Kenneth Kulzick busy. Kulzick '56, a litigator with Lillick, McHose & Charles, is a retained West Coast counsel for ABC. He is currently representing both NBC (in a suit brought by Wayne Newton against the NBC Nightly News for defamation) and CBS (in a suit brought by Lawrence

Kenneth Kulzick '56
University against 60 Minutes for defamation and trade libel). For 14 years, he has screened Rona Barrett's broadcasts before they aired and says that the only times she has been sued he was-fortunately or unfortunately-out of town. He did the legal clearances for Stanley Kramer's Judgment series, for Attica, and for Friendly Fire. And he currently represents Lucasfilm in a lawsuit involving Raiders of the Lost Ark. Show biz has clearly rubbed off on Kulzick. "You got me at a bad time," he moans, without evident anguish. "The first time in 25 years I've lost a preliminary injunction." The preliminary injunction prohibited further showing of the film Great White because of the "significant likelihood" that it would be perceived as "substantially similar" to Jaws, but Kulzick had his comeback all ready for the press: "It was a definite case of overbite." In his office is a videotape machine and a bookcase full of tapes from ABC. The current attraction is a videotaped deposition from an underworld figure Kulzick made for an

upcoming trial. "If you write anything," says Kulzick, "be absolutely certain my wife Patricia-that beautiful redhead over on the bureau-gets full credit." Leaning back in his chair and pointing to a plaque from last year's First Amendment Congress in Philadelphia and Williamsburg, he says, "I am what they call basically a First Amendment lawyer. I have been for 20 years representing what I consider to be freedom of expression-that is, going against people who attempt to narrow rights of expression." Florentino Garza '56, of San Bernardino, has made no efforts to limit his interests. A member of the International Academy of Trial Advocates, he does tort litigation, probate and will contests, water and air pollution, contested elections, products liability, medical malpractice, and personal injury. While personal injury makes up 75 percent of his practice, he has also served since 1976 as special counsel for the state of Texas to determine, for tax purposes, Howard Hughes' domicile at the time of his death. He represents a San Bernardino city councilman who won

Florentino Garza '56
election three years ago as a write-in candidate by a margin of three votes, had five votes deducted by a court challenge, and is now pulling out all the stops to reverse that decision. In the meantime, the candidate has almost finished serving his four-year term, but Garza believes important questions about the use of absentee ballots warrant pressing for a full resolution. Last year, Garza's name was prominently mentioned for nomination to the California Supreme Court. But it's personal injury that Garza still finds most interesting. "It has certain rewards, not only financial, but really it's a reward of satisfaction when you find that the economic life of an injured party is more secure by virtue of your services." The cases he handles are not repetitive fenderbenders, he says. "The tort area of the casualty field is as broad as you can stretch it." Some, like the nation's Chief Justice, suggest that field has been stretched too far. "I disagree," says Garza. "I think a measure of any civilized society is the way the laws take care of injured and disabled people. That is not to say that everyone who is injured is automatically entitled to recover. But it means that if there is a legitimate basis under our law to incur recovery based upon culpable conduct or, as in product liability, a corporation placing defective products in the stream of commerce which injure a user, 1think there is a logic, I think there is a justice in seeing that the injured party be properly-not unreasonably, but properly-compensated." When asked about his big cases, he does not assign them dollar values, but rather cites two that had socially significant outcomes. In one, he won "modest" damages for his client and an abatement order from the attorney general to clean up an environmental disaster in Barstow. In another, he won compensation for a young woman left paraplegic in an accident; the woman went on to become director of the cardiac department at a Los Angeles hospital. Lee Wenzel '57, a founding partner of Morgan, Wenzel & McNicholas, has, until recently, been on the other side of personal injury cases, as a defense 13

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Lee Wenzel '57
lawyer. Now, however, his practice includes plaintiff work as well. "I like to try plaintiffs' cases," says Wenzel. "They keep you on your toes. Both my partner and I have been criticized by the insurance industry [for doing both]. Perhaps there are some companies that would not retain us on the theory that we don't have their best interests at heart. But now people are a little more philosophical." Such criticism has not kept insurance companies from providing the bulk of Wenzel's work, along with most of the big drug companies, Remington Arms, and General Telephone. Wenzel has five lawyers working full time just on discovery for an asbestos case involving the Armstrong Corporation and another four on litigation arising from the fire at the MGM Grand Hotel in Las Vegas. He is a member of the International Academy of Trial Lawyers and a past president of the American Board of Trial Advocates. As an alumni representative on the University of California Board of Regents, he devoted as much as 40 percent of his time to University affairs.

Wenzel describes his courtroom style as sincere and low-key, though he will admit to some theatrics like facial nuances and an effort to "emote." "As a rule, I am cordial to my opponents and their clients. Some of the nastiest lawyers in town are some of the most respected. That's not my style." Nor is it his style to flaunt his big verdicts. "You go into some lawyers' offices, they'll have a picture of a big check. I've never done that. It is a barometer, but I've lost some big cases and I'm not ashamed of it. You find a lawyer who's never lost a case and he's probably not taking the hard ones. I'd rather try a hard case than one that's a slam dunk." Alan Halkett '61, a litigator with Latham & Watkins, disagrees with some of his colleagues in commercial litigation that the field is immune to excesses. "I think there is far too much litigation. And I think it's true in the commercial field as well. The stockholder invests $50 a share in a hundred shares and five years later they're worth $10 a share so somebody ought to pay for it. I don't mean there are not legitimate instances

Alan Halkett '61
where stockholders have been fleeced, but I do believe there are certain risks that are inherent in it and if you are unsuccessful in a business venture, sometimes you say, 'That's the way it goes.' Everybody seems to think there's a reason why they failed or lost money." He does feel, however, that making a distinction between the terms "litigation" and "trial" might clarify the process of resolving disputes. "There is perhaps a common conception that litigation and trial are the same thing. They are not. The litigation process itself, short of trial, is part of a legal process which leads towards the resolution of disputes. And .that process is an interesting and somewhat convoluted one. The litigator's role very often is to examine the dispute, dissect the dispute, and give to both sides a more objective view and sometimes an imaginative solution to the dispute." A past president of the UCLA Law Alumni Association and a member of the Chancery Club in Los Angeles, Halkett specializes in such commercial litigation as securities, mergers, and takeovers. He recently represented the Federal Home Loan Bank Board and the Federal Savings and Loan Insurance Corporation in litigation arising from their takeover of Fidelity Savings and Loan in the San Francisco area. He represented Continental Airlines in their takeover bid for Texas International and PSA in their takeover of Valhi. He spent ten months in Federal District Court in Los Angeles representing Capitol Records in what he thinks was "the first stockholders' open market purchaser class action case ever tried." Can litigation skills be taught? Halkett thinks more emphasis on communication and advocacy skills-a problem he says starts long before law school-could help. But there are some aspects of litigation only experience can teach, primary among them the acquisition of a thick skin. "There are some people who take very seriously any rebuke. If you can't walk away from the courthouse and forget it, you cannot live in the environment of litigation." That, he says, is something no law school can anticipate. 0

VOL 5, NO 3





Susan Westerberg Prager

The School's New Dean