Mar. 2, 2008
California Lawyer Attorneys of the Year Awards
We honor 34 lawyers for their extraordinary achievements in 2007. They include criminal-defense attorneys, sole practitioners, law professors, government attorneys, and lawyers from large international firms whose work made a profound impact on the law.
In these, our twelfth annual California Lawyer Attorneys of the Year Awards, we recognize 34 lawyers who made a profound impact on the law in 2007. They include sole practitioners, government attorneys, public-interest lawyers, criminal-defense attorneys, law professors, and lawyers from large international firms. Their areas of practice range from disability rights and entertainment law to personal injury and employment law. Among their successes: securing the first federal death sentences in the Central District of California in more than 50 years, forcing a city to make its inadequate wheelchair ramps accessible, and winning a rare jury verdict in a securities class action. In all, we identify 22 accomplishments in 16 areas of legal practice that reflect both the breadth and depth of California's state bar. Congratulations to the winners.
ALTERNATIVE DISPUTE RESOLUTION
Fenwick & West, Mountain View
Working with the Institute for the Study and Development of Legal Systems (ISDLS), whose mission is to help streamline legal processes and reduce backlogs in foreign judicial systems, Schachter has focused his volunteer work during the past two years within India, establishing court-annexed mediation and case-management programs. The mediation program Schachter spearheaded in Delhi quickly became the gold standard for expansion elsewhere in India.
Logging 700 volunteer hours in 2007 alone, Schachter returned to Bangalore for several months, leading an ISDLS delegation and implementing a court-annexed mediation program there. He helped train nearly 30 advocates and educated hundreds of lower-session judges and high court justices on ADR techniques-and, importantly, garnered support from the local bar association. To date in Bangalore, mediators have successfully resolved more than 1,000 matters in matrimonial, property, landlord/tenant, and business disputes-with a settlement rate of 54 percent.
Schachter estimates there are 30 million backlogged cases awaiting trial in India, 60,000 of them in Bangalore alone. "My fondest dream is that in 10 to 20 years we will see mediation centers throughout India, run by Indians-resulting in a great reduction in the number
of cases being tried and easier access to justice by those who need it most," he says.
Steven L. Smith
O'Melveny & Myers, San Francisco
Logging thousands of work hours and travel miles over a six-year period, Smith was lead counsel for Duke Energy in
a high-stakes arbitration brought by a foreign state-owned energy company seeking damages on contractual claims governed by English law.
The dispute arose when Sonatrach, of Algeria, stopped delivering liquefied natural gas (LNG) to Duke Energy under the parties' contracts governing their 20-year trade: LNG coming from Algeria would be transported in tankers to Louisiana. The parties asserted numerous claims against one another. Sonatrach sought nearly $650 million from Duke based on its alleged breach of the obligation to develop a U.S. market for the gas. Duke counterclaimed for breach of shipping obligations, seeking $27 million.
In December 2006, after nearly six years of arbitration and five separate multi-week hearings-three of which related to damages alone-an arbitral tribunal in London issued a 94-page award rejecting Sonatrach's damages claim and resulting in a $25 million recovery for Duke. The parties settled their remaining issues last July.
Peter H. Gold
Sole Practitioner, San Francisco
Gold won a victory in January 2007 before the U.S. Supreme Court in Cunningham v. California (127 S. Ct., 856), a case that could potentially reduce many prison sentences. The decision held that California's Determinate Sentencing Law violates a person's rights, under the Sixth and Fourteenth amendments, to a jury trial by allowing judges to impose elevated sentences based on facts not determined by a jury. Initially, some California defense attorneys hoped the decision would secure for state criminal defendants the right to a jury trial on sentencing factors. However, any major shakeup has been forestalled since the state Legislature passed a stopgap law that has kept most Cunningham-based sentencing appeals from succeeding. But Gold, a court-appointed appellate attorney, remains optimistic that jury trials on sentencing factors will occur in California when the state law expires next year. In terms of sentencing, "the Cunningham decision may be the most famous decision in California," says Oakland criminal-defense lawyer Stephen Bedrick. "It is so famous that virtually every one of California's prisoners knows it by name and hopes it will help him."
Sole Practitioner, Santa Monica
Last year sobel won a case protecting First Amendment and equal-protection rights of free speech activists and artists on the Venice boardwalk, took on a case representing demonstrators involved in the May Day skirmishes with the Los Angeles Police Department in MacArthur Park, and filed multiple lawsuits alleging police harassment of homeless people on Skid Row. More recently, she and other civil rights attorneys have charged that police "quality of life citations" that result in arrests of poor and homeless people in L.A. amount to discrimination based on race and disability (Jones v. City of Los Angeles). As a result of Sobel's work, cities around California are reexamining policies that criminalize homelessness. In Los Angeles, an injunction was ordered to stop enforcement of a city code provision that allowed police to arrest people sleeping on the street. Because shelter is available for less than half of Los Angeles County's homeless population each night, the achievement is significant in its own right. But it has also had a ripple effect elsewhere, including the voluntary suspension of a similar nighttime sleeping ban in San Diego.
Timothy P. Crudo
U.S. Attorney's Office, San Francisco
In the first criminal trial of a defendant accused of stock-option backdating crimes, Assistant U.S. Attorneys Crudo and Adam A. Reeves won a conviction in August against Gregory Reyes, former CEO of San Josebased Brocade Communications Systems. In December, Crudo and Reeves won a second conviction, this time against Stephanie Jensen, Brocade's former vice president of human resources, for falsifying the company's books and records and for conspiring with Reyes to do so.
A pretrial agreement with Brocade signed in March 2006 by lead prosecutor Christopher Steskal permitted the company's outside counsel-Craig Martin of Morrison & Foerster's San Francisco office-to share the results of his investigation and interviews about option-granting procedures. Following Steskal's departure for private practice in January 2007, Crudo and Reeves used the investigator's testimony to successfully challenge Reyes's defense. Crudo took a gamble in calling only a single, low-level witness from the finance department. After seven days of deliberations, jurors convicted Reyes of all charges. In January, U.S. district Judge Charles Breyer sentenced Reyes to 21 months in prison and ordered him to pay a $15 million fine.
Susan J. DeWitt, Robert E. Dugdale, and Kim Meyer
Attorney's Office, Southern District of California, Los Angeles
These three federal prosecutors concluded a landmark case in 2007, securing in February the first federal death sentences returned in the Central District of California since 1950. The case, which involved members of a Russian kidnapping-murder ring, culminated in guilty verdicts for two men accused of orchestrating the deaths of five Russian immigrants in Los Angeles in 2001 and 2002. All five victims had been kidnapped and held for ransom or used to lure additional victims, then murdered and their bodies dumped in a reservoir near Yosemite Park, even after the ransom money was paid. During the complex trial, the trio introduced more than 120 witnesses and 4,000 exhibits; the jury returned a guilty verdict in less than two days. At the conclusion of the four-and-a-half month trial, the presiding judge stated that it was one of the most well-presented cases on behalf of the government he had ever seen.
Terry J. Kilpatrick
Sole Practitioner, San Luis Obispo
In May, Kilpatrick won a $221,000 judgment against the city of Riverside for inadequate wheelchair ramps-the state's largest award for a single plaintiff in a disability-access case (Lonberg v. City of Riverside, 2007 U.S. Dist. LEXIS 38824).
The plaintiff, John Lonberg, 70, has used a wheelchair since suffering injuries in an accident 25 years ago. The judgment, imposed after the city had denied several lowball settlement demands, followed a decade-long legal fight. It forced the city to retool nearly 200 of its ramps-to make them an accessible slope as required by the Americans With Disabilities Act-within four months of the judgment.
"It's made a tremendous difference in my life," says Lonberg. "Before, I couldn't even get across the street. Now I can go visit my friends. I can get to the mailbox and to the hospital on my own. Terry decided to do the right thing, and for that I will be eternally grateful, especially since he had to pass up lots of other cases that would have earned him lots of money."
Still in litigation is the issue of fixing ramps the city built before 1992, when state and federal regulations on accessible curb ramps and sidewalks took effect.
Donna M. Ryu
Hasting's Civil Justice Clinic, San Francisco
Ryu, a plaintiffs employment lawyer who teaches full time at the Hastings Civil Justice Clinic, battled an industry effort led by Kenneth Cole Shoes and its amici-who were represented by some of the largest defense firms in the country-in successive appeals in Murphy v. Kenneth Cole Productions, Inc. She took on the case after the clinic students she supervised won the first round in superior court. Her work culminated in a unanimous California Supreme Court decision (40 Cal. 4th 1094 (2007)) that resolved two highly contested issues in favor of employees.
First, the court ruled that the additional hour of pay an employer owes its employees when it fails to provide meal and rest periods under Labor Code section 226.7 is a wage and not a penalty-meaning that such claims are subject to a statute of limitations of three or four years rather than one. Further, the decision established that a trial court can consider wage claims that an employee did not raise at the labor commissioner proceeding. This is particularly important for low-wage workers who appear unrepresented before the Labor Commission.
Sheppard Mullin Richter & Hampton, Century City
As the "go-to guy" for Disney, MGM, and Sony, Katz often gets more than his share of big cases. But 2007 was a particularly big year for Katz, starting in January when he won a unanimous appellate court ruling, upholding a summary judgment he had obtained on behalf of Sony-owned Columbia Pic-tures Industries (Wagner v. Columbia Pictures Indus., Inc., 146 Cal. App. 4th 586). In that case, the court rejected the claim made by actor Robert Wagner on behalf of himself and his late wife, Natalie Wood, that because they owned a share of the net profits from the popular television series Charlie's Angels, they also owned a portion of ancillary and subsidiary rights to the movies based on it.
Katz followed up that case with two big wins for Disney. In the first, the Ninth Circuit affirmed a lower court ruling that certain paintings allegedly shown to Disney about 45 years ago did not bear a striking similarity to the Epcot theme park the company later built, so no copyright infringement occurred (Corwin v. Walt Disney Co., 475 F.3d 1239). In the second, he obtained a summary judgment against the claims of several screenwriters and producers that the motion picture Sweet Home Alabama infringed on a script that had been submitted to Disney (Benjamin v. Walt Disney Co., 2007 U.S. Dist. LEXIS 91710).
Susan S. Fiering
Deputy Attorney General, Oakland
Sierra Club Environmental Law Program, San Francisco
Center for Biological Diversity, Joshua Tree
Environmental Law Clinic, Stanford University
Fiering, Gallagher, Siegel, and Sivas played leading roles in the case that culminated in November's decision by the Ninth U.S. Circuit Court of Appeals rejecting the federal fuel economy standards for light trucks and sport utility vehicles. Such vehicles account for about half of all new sales in the country, says Sivas. Eleven states, the District of Columbia, the city of New York, and four public-interest organizations all joined in the petition to review the rule. The court, which ruled unanimously on most key points, found that the average fuel economy standards set out by the National Highway Traffic Safety Administration (49 C.F.R. 533) were incomplete and inadequate (Center for Biological Diversity v. National Hwy. Traffic Safety Admin. (508 F.3d 508 (2007)). Environmental legal experts predict the ruling will have a broad effect on the future work of federal agencies and projects that require federal approvals or permits, as well as on local, state, and private development projects that are subject to California's environmental-review statutes.
Trent W. Orr
Sole Practitioner (of Counsel for Earthjustice), San Francisco
Katherine S. Poole
Natural Resources Defense Council, San Francisco
Orr and Poole together have led efforts on behalf of environmental groups that produced one of the more significant rulings in California's recent history of struggles over its water supplies. In May, U.S. district Judge Oliver Wanger in Fresno ruled illegal the government assessment of risk to a threatened fish species from the massive pumps in the Sacramento San Joaquin Delta, which serve both the state and federal water systems.
The delta is the heart of the state's unique water collection and delivery system that has allowed development and farming to bloom in often bone-dry parts of California, but at massive environmental cost. About 25 million people get at least some of their water from the delta, and the water irrigates huge tracts of agricultural land.
Wanger's ruling came in a 2005 lawsuit the environmental groups filed to preserve one of the alleged victims of the water system, the tiny Delta smelt. Scientists consider the species, which is officially listed by regulators as "threatened," to be a prime indicator of environmental health. To protect the fish, Wanger in August imposed limits on pumping from the delta that some state officials predicted could cut by up to one-third the amount of water taken out-possibly the largest water-supply reductions ever ordered by a court in California. Environmentalists hope the decision-which Wanger finalized in December-will force the state to adopt new ways of managing the vital delta and forestall what some experts believe is a biological disaster in the making (NRDC v. Kempthorne, 2007 U.S. Dist. LEXIS 91968).
San Francisco Public Defender's Office
In 2007 Adachi led the San Francisco Safe Communities Reentry Council, a collaboration of more than 50 government agencies, community organizations, and individuals serving the needs of the formerly incarcerated. The council obtained more than $2 million in funding and launched several programs to help those newly released from jail and prison secure housing, education, and employment and deal with their emotional, health, and legal needs. It also created a step-by-step guide to job training and record expungement, Getting Out & Staying Out: A Guide to San Francisco Resources for People Leaving Jails and Prisons, already distributed to 3,500 people before their release.
Adachi established a reentry unit in the public defender's office composed of ten social workers who assist both juvenile and adult parolees with employment, education, drug rehabilitation, and housing. In its first year, the unit has helped more than 400 people. The reentry unit also provides support for children of incarcerated parents or of girls in the juvenile justice system.
In addition, last year Adachi expanded the Clean Slate program, which helps ex-offenders clear their criminal records, overcoming obstacles to employment and education. Its Mission District office now has four satellite offices, which have assisted more than 20,000 people in the often-overlooked population of violent offenders.
District Attorney, San Francisco
Since taking office in 2003, Harris has often cited the harrowing statistic that seven of every ten people sent to California prisons will commit a new crime within three years of release-the worst recidivism rate in the nation.
To combat this, in late 2005 Harris, the state's first black female DA, divined and pioneered a new initiative called Back on Track, with the goal of preventing offenders from committing more crimes and, at the same time, saving tax dollars. The program focuses on young, first-time drug offenders with no history of violence or gang involvement.Â All participants must plead guilty, but they agree to a one-year deferral of final sentencing while they complete a rigorous course involving intensive supervision and requiring them to get a job and an education, as well as reengage with their children and families. Goodwill Industries is a partner in the program-managing cases, gathering resources, and placing individuals in fitting community services.
Since the initiative was launched, more than 100 former offenders have successfully completed Back on Track, and 100 more are currently enrolled. Fewer than 10 percent of the program's graduates reoffend. And it costs just $5,000 per participant, compared with $35,000 per year to house them in jail.
J. Clark Kelso
McGeorge School of Law, Sacramento
Kelso has saved the state $100 million annually in information-technology costs, a remarkable feat considering that the state has not had an official IT department since 2002. In his capacity as California's appointed chief information officer, this law professor has consolidated data centers, set up a collaborative user group for government IT officials, developed an IT system for managing technology issues, and developed a strategic plan for the executive branch's IT spending and procurement. Also last year, Kelso pushed California to reinstate its IT department, which became official in January and is now headed by a full-time CIO. Calling Kelso "an invaluable asset to state government in both volunteer and executive capacities for the last three governors," California Treasurer Bill Lockyer applauded Kelso for using "formidable diplomatic skills" to manage change in a large organization, ultimately having "righted the California technology ship after two decades of erratic, off-course IT development which had many very expensive, very public failures."
Patricia T. Sturdevant
California Department of Managed Health Care, Sacramento
As lead counsel for the state's Department of Managed Health Care in an enforcement action against Kaiser Foundation Health Plan, Sturdevant is responsible for creating a novel consent agreement that resulted in a substantial increase in organ dona-tions last year. In 2005, Kaiser improperly transferred more than 2,000 patients awaiting kidney transplants to a new renal center without providing adequate staffing to meet increased needs or transferring accrued patient waiting times. As a result, the number of people who died waiting for organs roughly doubled. The ensuing state enforcement action against Kaiser, begun in May 2006, resulted in Kaiser agreeing to pay a record $5 million penalty, but it also focused on corrective action. To counteract Kaiser's mishandling of the regional kidney transplant center in San Francisco, Sturdevant orchestrated an innovative settlement in which Kaiser gave a $3 million donation to Donate Life California Organ and Tissue Donor Registry to finance the registry's first media campaign on the importance of organ donation. The April 2007 campaign increased binding organ-donor registration commitments online by an estimated 40 percent. DMV donor commitments also have gone up every month since the campaign began. The increased registrations were especially significant for the state's ethnically diverse population, as two-thirds of Californians waiting for donor organs are minorities.
Morrison & Foerster, San Francisco
As Krevans prepared to defend two subsidiaries of satellite television company EchoStar Communications against a patent-infringement claim before a Texas jury, the last codefendant, DirecTV, settled on the eve of trial. The lawsuit had been filed in 2005 by Forgent Networks, which built its business in recent years licensing intellectual property. It originally charged 15 cable and satellite companies with stealing the digital video recording technology that allows viewers to play back content as it is recorded. EchoStar faced about $200 million in alleged damages-not to mention the Eastern District of Texas's intimidating pro-plaintiff record. But Krevans and her team-which included Texas trial lawyer Otis Carroll of Ireland, Carroll & Kelley and fellow MoFo partner Charles Barquist-went forward anyway. Their strategy was a bit unusual: They acknowledged that EchoStar had infringed, but counterattacked, contending that Forgent's patent was actually invalid. The bold plan worked, putting Forgent on the defensive right out of the box. After a weeklong trial and about an hour of deliberation last June, the jury returned a unanimous verdict in EchoStar's favor.
Michael P. Judge
Los Angeles County Pubilc Defender's Office
Congress Member 7th Congressional District
Last September, President Bush signed into law the largest increase in student aid since the GI Bill of 1944. Known as the College Cost Reduction and Access Act (HR 2669), it appropriates more than $20 billion to cut interest rates on federal student loans and increase grant aid for low-income students. The legislation also makes it easier for freshly minted lawyers to take relatively low-paying jobs in the public sector by both extending the repayment period of student loans and forgiving the unpaid balance after ten years of service. As the bill's sponsor, Representative Miller has made the legislation a top priority since at least 2001, when he became the senior Democrat of the House Committee on Education and Labor. (He's now its chair.) Meanwhile, Judge put together a lobbying effort that included public-interest lawyers from across the country. He also submitted testimony on behalf of the bill and met with more than two dozen senators and Congress members in Washington, D.C., and California.
Girardi & Keese, Los Angeles
Girardi & Keese, Los Angeles
In one of a series of cases in which Bigelow and LippSmith alleged sexual abuse of children by a residential facility, the two attorneys secured a jury verdict of $12.5 million for three plaintiffs. Of that, $9.7 million went for punitive damages. "It is a large award," says personal injury lawyer Rick Simons, a partner at Furtado, Jaspovice & Simons in Hayward, who in 2005 won a similar molestation case against the Catholic Diocese of Oakland. "And it is more difficult to get an award against an institution than a perp." The jury found that operators of Masonic Homes of California in Covina knew or should have known about two of its employees' unlawful sexual abuse of children living at the home. The three male plaintiffs were sexually abused for several years while they were living at the home in the late 1970s.
In late 2006, Bigelow and LippSmith won a $3.5 million verdict against Masonic Homes for the sexual abuse of two female residents there. The verdicts are among the first to include punitive damages awards under the Childhood Sexual Abuse Revival Act (Cal. Code Civ. Proc. Â§340.1).
Kiesel, Boucher & Larson, Beverly Hills
In 2007 an overlapping group of plaintiffs attorneys reached separate settlements with the Archdiocese of Los Angeles (Coordinated Proceedings: the Clergy Cases 1) and with the Diocese of San Diego (Coordinated Proceedings: Clergy Cases 3) for hundreds of cases of alleged clergy sexual abuse. In July the Archdiocese of Los Angeles settled 508 cases for $660 million; in September the Diocese of San Diego settled 144 cases for $198 million-more than double its final offer before filing for bankruptcy protection earlier in the year. Boucher was liaison counsel in both settlements.
Boucher and associate Anthony M. De Marco coordinated settlements with defendants and groups of plaintiffs attorneys, who themselves often were organized as a consortium to share costs and responsibilities. Among the most active groups with a significant number of cases were: Boucher, Larry E. Drivon of Stockton, and Jeff Anderson of St. Paul, Minnesota; Katherine K. Freberg of Irvine, Terry M. Giles of Houston, Texas, and Stephen C. Rubino of Margate City, New Jersey; and John C. Manley and Venus Soltan of Newport Beach. In addition, Irwin M. Zalkin and Michael Zimmer, partners in the San Diego firm of Zalkin & Zimmer handling 45 cases in San Diego and 60 statewide, were critical to the Clergy 3 settlement, which effectively ended the San Diego Diocese's Chapter 11 proceeding.
Charles D. Naylor
Sole Practitioner, San Pedro
Scott P. Nealey
Lieff Cabraser Heimann & Bernstein, San Francisco
Robert J. Nelson
Lieff Cabraser Heimann & Bernstein, San Francisco
In one of the year's largest personal injury verdicts, Naylor, Nealey, and Nelson won $50 million in punitive damages, as well as $5.2 million in compensatory damages, against DaimlerChrysler for the wrongful death of Richard Mraz, a longshoreman. Mraz, 38, suffered fatal head injuries when the 1992 Dodge Dakota pickup he had been driving ran over him after he left the vehicle. The jury found that a "park to reverse" defect in the truck's automatic transmission, said to affect more than a million DaimlerChrysler vehicles, was a substantial factor in Mraz's death. This was the first park-to-reverse case against Chrysler in 25 years to make it to trial. It was also the first case in the nation to test the impact of a recent Supreme Court ruling relating to jury instructions on punitive damages, a decision that makes the task of recovering such damages considerably more complex. (In Philip Morris USA v. Williams, the high court held that due process prohibits a jury from punishing a defendant due to the injuries or deaths that the company's conduct or product may have caused to nonparties.)
Marc Van Der Hout
Van Der Hout, Brigagliano & Nightingale, San Francisco
Last October, Van Der Hout won dismissal of all charges against two Palestinian men who were arrested on the eve of becoming U.S. citizens in 1987. The two men, Michel Shehadeh and Khader Hamide, faced deportation under a McCarthy-era law and then under the USA Patriot Act for alleged political associations with a group affiliated with the Palestine Liberation Organization. (A third Palestinian he represented, Aiad Bara-kat, was granted citizenship last year.) The dismissal comes after a nearly 21-year pro bono fight by Van Der Hout on behalf of the National Lawyers Guild for those three men and the rest of "the L.A. 8"-a group of seven Palestinians and one Kenyan-who had faced deportation on charges that they had ties to terrorists. It is one of the more controversial immigration cases in recent memory and also one of the longest running. In addition, Van Der Hout last year challenged the federal government's delays in processing applications for citizenship and green cards.
James P. Bennett, Jordan D. Eth, and Terri A. Garland
Morrison & Foerster, San Francisco
In a rare trial of a securities class action, a defense team led by Bennett, Eth, and Garland won a unanimous jury verdict in a case brought against Milpitas-based JDS Uniphase Corp. and four former executives. It is only the fifth securities class action case tried to verdict since the Private Securities Litigation Reform Act (109 Stat. 737) went into effect in December 1995. The trio represented the company and three of its executives. Michael J. Shepard and Michael L. Charlson, partners at Heller Ehrman, separately represented the fourth executive.
To prop up the company's share price, shareholders alleged, JDSU executives falsely predicted sales growth and then, between 2000 and 2001, sold about $800 million in stock before investors discovered stagnant inventory. Shareholders also alleged that JDSU violated federal securities law by not disclosing that its earnings were inflated because of the company's failure to record write-downs of goodwill. In 2002, shareholders filed a class action seeking $20 billion in damages.
Securities litigators Eth and Garland began working on the case in 2002. Lead trial lawyer Bennett came on board nine months before trial; he handled the opening and closing statements, and all three attorneys examined witnesses. During the four-week trial in November, defense attorneys argued successfully that the company could not have anticipated the telecommunications bust of 2001, which devastated the market for the company's fiber-optic equipment. A nine-person jury in Oakland deliberated for two days before returning a unanimous defense verdict on all counts.