Episode 53: Jennifer L. Keller
One of America’s Most Successful Trial Attorneys and Founding Partner of Keller/Anderle
01:07:54
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Show Notes
Jennifer L. Keller is one of America’s most successful trial attorneys. Ranked among the top commercial litigators in the nation, people describe Jennifer as “one of the best trial lawyers in California,” who “has uncanny instincts, a wonderful courtroom demeanor, and an extremely clear and effective communicator,” and is “absolutely unflappable in court and builds a strong rapport and credibility with judges and decision-makers.” Today, she joins MC Sungaila to talk about some of her work and what attracted her to the profession. She also shares tips on finding opportunities to have a wonderful trial experience.
Relevant episode links:
Keller/Anderle, WordRake, BriefCatch, Don't Look Back
About Jennifer L. Keller:
Jennifer L. Keller
Jennifer is a Fellow of the American College of Trial Lawyers and member of California's Trial Lawyer Hall of Fame. She has won complex jury trials across a wide spectrum of subjects. Benchmark Litigation lists her among the Top 100 Trial Attorneys in America, and the Top 20 in California. Chambers USA calls her "the consummate trial lawyer" and "an incredible cross-examiner." She has won three CLAY Awards (California Lawyer Magazine California Lawyers of the Year).
In 2011 she was lead counsel for MGA in the retrial of Mattel v. MGA, a billion-dollar "bet-the-company" case (AKA "Barbie v. Bratz"), in which a jury rejected Mattel's trade secret and copyright claims awarded MGA $170 million for misappropriation of its own trade secrets. Including attorneys fees, the total award was $309 million.
In 2009 Jennifer won California's largest business jury verdict that year -- $350 million verdict for her venture-capitalist client in a 5-month fraud trial. The case settled in bankruptcy court for $120 million.
Jennifer represented Standard & Poors in United States v. The McGraw Hill Companies. In 2013 she successfully defended a Saudi princess falsely accused of human trafficking. She represented Michael Ovitz, founder of CAA and former chair of the Walt Disney Company. She won Broadcom co-founder Henry Nicholas a $43 million tax deduction the IRS had denied.
In 2018 she won a defense verdict for MassMutual in downtown Los Angeles in a class action jury trial. In 2017 she won a 9-month jury trial for a developer on charges he bribed members of the Board of Supervisors. He was found not guilty in just two hours.
Both Chambers USA and Chambers Global rate Jennifer among the top trial lawyers in the United States. Benchmark ranks Jennifer as a "National Litigation Star." She's been named 13 times by the Los Angeles Daily Journal as one of California's Top 100 Lawyers; is listed in "The Best Lawyers in America" in three categories, including Bet-the-Company litigation; is perennially among the Lawdragon 500 Leading Lawyers in America and was named a Lawdragon Legend; and is Super Lawyers' #1 Super Lawyer in all of Southern California.
Transcript
I am so pleased to have on the show one of the premier and amazing trial lawyers who I know and respect greatly, Jennifer Keller, one of the Founding Partners of Keller/Anderle in California, who has a nationwide trial practice. Welcome, Jennifer.
Thanks for having me.
We talked to a lot of judges and litigators on the show, but I think that you're in the special category of excellent trial lawyers. We'll talk about some of your work in that regard, but I wanted to talk first about how it was that you decided you wanted to become a lawyer and go to law school, to begin with.
I can't remember a time when I did not want to be a lawyer. As a little girl growing up, when I did, that was not a common path. I didn't know any women who were lawyers. I hadn't even heard of any women who were lawyers, but it's something I always saw myself doing. It's quite clichéd, but Perry, Mason, I wanted to be Perry. I didn't want to be Delis Street, and that hooked me.
In 7th and 8th grade, when I got into speech and debate, it was with an eye in my mind even then to honing skills that I would use someday as a lawyer. It seems strange because I know that most people go through a period of quest, wondering what to do, and trying to find themselves, but it was almost a preordained path for me. I never thought of being anything else.
What was it that attracted you to it? Did you know any lawyers other than Perry Mason on TV?
I did not. I wouldn't say My family was anti-lawyer, but my immediate family was certainly devoid of lawyers. My father, my uncle, and my cousin were physicians. They were not fans of lawyers.
I was going to say doctors aren't lawyer lovers generally.
We had one judge who lived on my street when I lived in Fullerton, but he was certainly not a billboard for becoming a lawyer. He didn't like having been a lawyer. He didn't especially like being a judge. That was it. It was TV.
When they say all the people who went to law school after LA Law or whatever, the impact is real. That's for sure.
It allows you to see yourself in that role. The idea of being on your feet in a courtroom where you could affect the outcome and protect a client appealed to me doing all those things.
The idea of being in a courtroom where one could actually affect the outcome and protect a client is appealing.
There weren't many women role models in those positions for you to look at, which is very different now for women who are entering law school or thinking about becoming lawyers. There are many more of us.
The first woman lawyer I met was a good one, though. I was sixteen at Sunny Hills High School. I think probably because nobody else was interested, I became the school's delegate to the District Attorney's Youth Council. I would drive down to Santa Ana for these meetings. It was a kid thing. First, the DA's office, she was either 1 of 2, put that person in charge of the kids, and that person was named Alicemarie Huber. The light bulb went off for me, “I can do this.” She later married Jim Stotler and became Alicemarie Huber Stotler, and the rest is history. You have your own.
She was so impressive. Obviously, I love her and was trained by her by clerking with her on the district court, but she's thoroughly impressive and, I'm sure, thoroughly impressive then as well.
She was only 28 and I was 16, so she was still young enough that I could picture myself standing where she was standing. She had something that a lot of people who've only seen her on the bench don't realize a wonderful sense of humor. She was engaging, fun, and funny. All of us would walk out of the room wanting to be deputy DAs because we wanted to be like her.
I didn't realize that, but that's an amazing trailblazer for sure.
Is she a good first role model to have?
Yeah. I was going to say you have very good taste. That's cool. Perry Mason and pre-Honorable Judge Stotler, that's a pretty good group. You knew you wanted to do trial work and all that stuff. You didn't go to the DA's office, though. You went to the Defender's Office. How did that happen?
I had the idea in my head that I would be a deputy district attorney and wear the white hat. In law school, one of my professors, Gordon Van Kessel, who taught not just advanced criminal procedure about a clinic I participated in, said, “You don't belong in the DA's office. You belong in the public defender's office. You're anti-authority. You're not going to like the whole chain of command. It's not going to work for you. You have the personality of a public defender.” I said, “I don't agree. I think I'd be fine with that.”
He gave an example. He said, “Let's say the office policy is to strictly enforce the law on second-time prostitution. Let's say some woman doesn't have money for her kids for shoes or food at the end of the month. She turns a trick on the street corner and gets arrested. The mandatory minimum in jail is 45 days, and you know that this woman is going to probably lose her kids, apartment, job, and her already precarious existence are going to be imperiled. What do you do?”
I said, “I'd cut her a deal. I'd make a deal. I would demand 45 days.” He said, “No, it's office policy, not your decision. It’s the DA's decision. You're just a deputy. What do you do?” I said, “I would go talk to somebody about that and explain this woman's plight.” He said, “Nope, policy, sorry, got to do it.” I said, “I’d make the deal anyway.” He said, “You'd get fired. I have been both the special prosecutor for the city of San Francisco. I've also been a deputy public defender in Alameda County. Trust me. You don't belong in that office.”
I thought about it. I wasn't completely convinced. I did apply to both offices in Orange County. I was offered a job by both offices. I was leaning toward being a deputy DA, but sitting in court and seeing the parade of mostly poor people going by, mostly people of color, and the role of the district attorney. I couldn't see myself in that role. I didn't want to hurt people. I thought, “I'll get as much trial experience, and it'll be even more challenging to be around. I won't have to do that. People said, “You're going to kill your chances for the future. You're going to limit your opportunities. You'll never be able to be a judge.”
I said, “I'm not wanting to be a judge.” “That could change in 20 years. You'll have a much tougher transition to private practice. If you're a public defender, you have the mark of Cain on you.” I said, “That's wrong. Public defenders are valuable parts of our system. They make the constitution have meaning. The Sixth Amendment is meaningless if you don't have the right to counsel.”
I was quite naive, but I was correct, and Professor Van Kessel was correct too. I have such a difficult time with authority. Even with the limited authority in the Public Defender's Office, I changed it. There's not a whole lot of rigidity there, but he was right. It's funny. He’d sized me up in such a short time, but he was right.
If you hadn't had someone who said, “Here's the reality. Here's how it works. Do you feel comfortable with those kinds of decisions or playing that role?” You wouldn't have known that's how it works if he hadn't asked that and basically allowed you to think for yourself, like, “Would I feel comfortable with that?”
My friend, Tom Mesereau, went to the DA's office for one year. He felt so bad the whole time. He said he was in Juvenile Court and had convicted this poor young girl, which was a foster child. It was some small theft, and he prosecuted it and got a conviction. When he came back to the office, people were high-fiving him. He said he wanted to go to his office and cry. He wanted to go down and hug and help her. Tom only lasted a year because he didn't have somebody tell him.
That's what I was going to say. He didn't have the front end of that. It’s heartbreaking to be in that role to do that. You're like, “I'm doing my job and doing this, but I don't feel good about it.”
Unfortunately, there isn't a lot of discretion in most DA's offices. Once in a while, there is, or they'll give lip service to giving the deputies a lot of discretion, but I haven't seen it. I can understand that too. If you're the elected DA, you're elected to put into effect the policies that you campaigned on. That's what you promised to people, not to delegate that responsibility to each individual deputy. Nevertheless, there is a tension that usually pulls in the wrong direction. The devil on the ground, in the courtroom with the case, seeing all the particulars, is usually in the best position to make a decision about the equities of the case, but I'm not the DA.
Either way, the DA's office or the Public Defender's Office are great opportunities to have a wonderful trial experience from the get-go.
It's almost the only way anymore to get that experience. There's no place else that I can think of where you can have one jury out deliberating and be picking another one. At the federal level, the sentencing guidelines have killed trials. You have so many fewer trials now than you ever had before. I've talked to somebody in the US attorney's office for eight years, and they've had two trials.
That's so different. From what I saw clerking, that's so different from many years ago.
You can read all the books about trial practice, and they help, but until you've been there, things don't necessarily go the way you think they're going to go.
It's so hard for them to get trials that both the federal public defender and the US Attorney's Office tend to double staff every trial, whether it needs it or not, because that person can get experience at the counsel table, maybe taking a witness. It's an ongoing problem where we're going to get the next generation of trial lawyers. Unfortunately, major law firms tend to look down on district attorneys and public defenders at the county level.
They'll hire somebody who was an A USA because they think that's a prestige position and that person will be able to do the written work, but they often have very little trial experience. Some of the people who are represented as trial horses at big firms have to me, a laughably small amount of trial experience, but the big firms do tend to avoid hiring those very people who have the experience and could help them.
That one approach to growth in your firm is that you appreciate people with trial experience, and you have found some of the most appropriate and best recruits from state defender's offices. Others where you're like, “Who has the trial experience? Where am I going to find this?”
A smart lawyer is a smart lawyer. If you've got somebody who's both a good trial lawyer, very bright, and can even write, that person will make a transition into civil litigation pretty quickly. It's much easier to take a wealth of trial experience and transition into a different practice area than it is to have all these in the world but no trial experience.
It's one of those things you can almost only learn by doing. I can go to all the seminars in the world, and they help. You can read all the books in the world about trial practice, they help, but until you've been there, things don't necessarily go the way you think they're going to go. Stuff happens.
Yeah, and to be nimble about that. I've seen you in court. I don't even think you're conscious about it anymore, but maybe you are. When the dynamic changes and you can feel that the vibe has changed in the courtroom, something has changed, and you're assessing both that and all of the different players, what do I do with that? There's a lot of intuition that comes from that, but intuition is from an experience, like you said.
I remember when I was a newer public defender and looking at the DSM definition of ADD, I realized I had it, even conduct disorder. It's a different way your brain is organized, but it helps you as a trial lawyer. If people are bothered by distraction, they have to be on their narrow track. A trial lawyer loves that.
You're keeping an eye on the witness and the jury and one eye on the judge. You're keeping an eye on your client. All these things are happening at once. You've got a lot of different channels that you're able to use. It's interesting it caused me to think about what's neuro-typical and what isn't, and to what degree being atypical in certain ways is part of the skillset.
That is what I perceive you're doing, and you're like, “Yup. That's what I'm doing, all of those different things,” and integrating what the next approach that fits all of those things is?
The other thing that people who are ADD often have is the ability to hyper-focus when they're interested in something. That is also very helpful when you're cramming for trial. You have to have a tremendous amount of information very quickly. Being that person who, when you're tapped on the shoulder, doesn't even feel the tap because you tunnel vision onto what you're doing is helpful. It may drive you crazy, but it helps you absorb a lot of information.
You need different skills at different times in the process, and that's true. You need to be able to be nimble in the courtroom, but previously you need to be prepared so that you've prepared what you know or suspect could happen. You're open as a result of that to other things that you don't expect in the courtroom. You said one thing, which if you didn't have the experience yourself, I don't think many people, as conventional wisdom or whatever, would think the way you do about translating the skills.
That's because, in part, that's what you did. You had developed the trial skills in the Defender's Office, and when you came out and were in practice, you not only did criminal defense work but also transitioned to very big-ticket, high-end civil cases. There aren't many people who make that transition or see that it's possible or feasible in a way, but because you did it, you're able to see that in others and say, “That's a good template. It's possible. It's not just possible for me. It's possible for others.
I see the downside, particularly for big firms, in not having real trial lawyers because it shows. There will be some cases that will inevitably end up before a jury, or there are cases that should, but that get settled because of the fear of the lawyer. They're so terrified of the unknown. I'll frequently hear from people, “We had to settle this case because you never know what a jury will do. Juries are crazy.” The people who say that almost never have a lot of trial experience.
Juries are not crazy. They're not. In the cases I've had over the course of many years, I cannot remember a jury doing anything irrational. I've won some that I didn't think I should win or didn't think I was going to win. There are 1 or 2 I lost that I thought I had in the bag. Even then, when I look back on it, it was like, “What was I thinking? Of course, I was going to lose that case. That was a dog.”
Trial psychosis sets in, and I convinced myself I'm going to win, which is probably helpful in increasing your odds, but I've never seen a jury do anything irrational. “These jurors are crazy, and so we have to settle phases.” If you pick the right jury, they're not crazy. They are not, but you have to have the background and the skill.
That's true for in-house counsel who may not have gone to trial as a client even that much. There's a lot of trepidation in that regard, “I'm not comfortable with this. I have a different sense of risk or perception of risk.” That's where you can help them in assessing the risk having gone to trial a lot. It's what you're comfortable with or not comfortable with.
I had a client in a big company that shall remain nameless, but a Fortune 100 company where they had 40 lawyers in-house, but they had never had a jury trial. It was a class-action case. Those don't go to trial very often anyway. The lawyer who had been shepherding and along for them the whole time was issuing these dire predictions, “You're going to lose, and it's going to cost so much money. It's going to be horrible. I can jump in and settle this for you.” I said, “How many jury trials do ever had?” The answer was none. He was making predictions about what a jury would do.
I said, “I disagree. Here's why I think we have a strong case for the jury.” The associate general counsel in charge of it, to her credit, said, “Let's go for it. I think this is wrong. I don't think this should have been filed against our company. I think the allegations are false, and let's go for it.” We did and prevailed, but it's always annoying to have somebody prognosticating about what a jury will do who's never had a single jury trial. What is your prediction based on?
Somebody offered an analysis and was like, “What's the foundation for that? Why do you think that?”
“This is going to hate insurance companies.” Yes, jurors are not always terribly receptive to insurance companies. You try to weed out the ones who have extraordinarily strong feelings. Hopefully, they don't end up sitting on the jury, but even then, most jurors are fact-driven. They all come in with biases. Some of them come in with biases so strongly can't be overcome. Your job as a trial lawyer is to ferret those people, but most jurors are not like that. They're not a blank slate either, but they come in wanting to do the right thing.
You also had a unique experience. There aren't many trial lawyers who also have experience inside the Court of Appeal. How did your experience as a senior research attorney at the Court of Appeal impact how you try a case?
People who say juries are crazy almost never have much trial experience.
It was a real fortuity that I ended up there. I had a baby and was in private practice. When he was a year old, my husband kept him awake until 8:00 to see me when I got home. When he went to hand him to me, he started crying and clung to my husband. I thought, “This is not good. This is not what I have in mind for being a mom.” I took up one of the justice’s longstanding offers to come work there. At the time, I was mournful about it.
I was thinking, “This is going to completely derail my career. Here things are going well, I'm building things up, and now I'm going to go off and be a glorified law clerk. This is going to be a real bump in the road.” It was the opposite. The time that I spent there was very valuable to me as a trial lawyer, extremely valuable.
For one thing, the other attorneys there were fantastic. Some of them were brilliant, and I learned a lot from them, but I also learned a lot about the thinking processes of the justices. Certainly, filling in as the rid attorney from time to time, I learned what might grab the attention of the court and what was likely to be denied immediately, and what was not.
I remember we got this one repetition one time that the opening line of which was, “You'll never believe what happened.” It went on to detail a truly horrific situation in which a family showed up for a routine adoption. Everybody was all dressed up, a little boy with his little bow tie on and everything. The judge began this grilling about the immigration status of the child and called immigration and stopped the adoption. It was horrendous. You'll never believe what happened. I'll always remember that as an opening. Needless to say, the court decided to entertain that petition.
I became much more careful about making a record. I knew already. I had been an attorney in the Richmond Appeals Department and also at the Public Defender's Office. I was a little more attuned to making a record than some, but I became attuned to it afterward, dotting the I's and crossing the T's and making sure that off-the-record conversation that you casually had back in chambers gets memorialized. If something does happen to be missed, make sure that it makes its way into the motion for a new trial.
It's represented somewhere. That has been very valuable, learning how judges think and also learning the importance of brevity. I probably cut down the length of my motions, including motions in limine, and every other motion under the sun, probably at least by half, as a result of working there because people get bored. They're human beings. I also learned to try to avoid legalese as much as possible in my brief writing to punch up the race a little bit and use some active verbs. Don't drone on.
Human beings are reading it, not bots, and if something captures their attention, you're more likely to see things go your way. I’m a bit of a schoolmarm when it comes to writing and always encouraging the lawyers in my office to ditch prior to and subsequent to before and after regular words that humans use. All the things that go along with that use active verbs, never say things like the undersigned. The undersigned understands I was at fault.
It's extra verbiage that is not helpful.
We have a program called WordRake. When we had some younger lawyers in the office, we required them to use WordRake. It goes through and automatically deletes all sorts of unnecessary sentences and dependent clauses and cleans up.
There are a lot of good writing tools now in that regard. You can't do everything. You have to know how to be a good writer yourself. WordRake is helpful. BriefCatch is also helpful. I used that for appellate briefs. It’s the same thing, focusing on active verbs and cleaning out things.
You know young Sean Chang, who used to be with us. At one point, I said to him, “Have you WordRake this brief?” He said, “Jennifer, I've become a human WordRake.” I can totally see him saying that. He internalized WordRake up to the point where he didn't need it.
That's good because it trains you to do it yourself instead of being totally dependent on the program. That is funny that he'd used it so much that he's like, “I already know.”
My soldiering at the Court of Appeal, I regard it as invaluable in my career. If I could say one thing to myself as I left the practice of law to go to the court, I would say, “This is going to turn out well. Don't feel bad about this. This is going to work for you.”
In a lot of cases, people may feel along their path like, “No, this is it.” I've gone off a particular road and can never get back a certain way. The mind feels a little negative about something that's going on, but on the back end, you can see everything that all fits together and makes perfect sense. In this case, I enhanced your trial skills because I'm an appellate lawyer, but I still think that trial lawyers are good. Largely, old-school trial lawyers are excellent at creating the record, understanding like, “My job is not done.”
In part, appellate law is a relatively new specialty, which was your job earlier. There wasn't someone who was going to come in and consult or be at trial. You had your eye on many things, the trial you're doing, and the appeal. I love to see that with good filers. It’s like, “If I open the record, I'm like, “Yep. There it is. That conference was off the record. Here's the information about what happened.” I’m clapping when I see those transcripts.
You left the Court of Appeal and came into a boutique law firm that you've had to grow and a women-owned law firm. How has that been? Especially transitioning from doing criminal defense to significant civil cases and having that ability to go back and forth between those, how did you build and develop your own law firm?
It was another fortuity. I tried my first civil case back in 1998 when Justice Wallen, for whom I clerked at the Court of Appeal, recommended me highly to a law firm that had been sued. It was styled as a whistleblower case, blowing the whistle on their billing fraud. She was supported in that by their former managing partner and another former partner. It wasn't a slam dunk, but the more I looked into it, the more I thought it was ridiculous and a winner.
I tried that in front of Judge Richard Frank and won that case. It was fun. It was the first time I realized these skills are completely portable. There's no difference in the rules of evidence and persuasion. There are a few wrinkles that you have to learn about in civil practice. Certainly, when it comes to experts, there is a little more that you have to learn, but I realized right then that I didn't need to remain siloed.
In 2001, Chapman University retained me to try a case that had been filed against it by a bunch of students in its first law school class. They were alleging intentional misrepresentation and so and so. It was very represented by some very fine lawyers. Buddy Herzog is an excellent plaintiff lawyer, and Steve Madison with Quinn Emanuel. I came into that case at the last minute. The founding dean had wanted me to represent him. I had told him, “I'm not set up to take slews of depots, but I have a friend who can do that. I don't see you staying in the case as an individual. I don't think it's going to happen.”
I managed to get him dismissed on the eve of trial. I think it was a couple of weeks before. I went in and did a mock for Chapman. I agreed that I would play the role of one of the lawyers, and based on the mock, the trial consultant, who I had never met before, strongly encouraged them to bring me on as lead right then.
At some point in your career, your enthusiasm is still high, and that's the sweet spot for you. Later on, you've got the experience and the vision, but you don't necessarily have that same degree of youthful enthusiasm, and you're much more aware of the things that can go wrong.
I didn't know that story. That's amazing.
That's what happened. That turned into a very long trial, four and a half months in front of Judge Cola. That ended up being a win as well and was a fun case to try. I took every witness but one. The firm that had the case before then backed me up, and they were wonderful. They were not ego involved at all. They were perfectly willing to second chair, back up, and help with law motion work and all that. That was a good experience.
That same trial consultant from that trial, several years later, had a case where this venture capitalist was alleging that he had been done out of a business opportunity that was worth a large amount of money. He had been unfairly deprived of that opportunity. He already had counsel, but on the eve of what was supposed to be that trial, his counsel had had a cardiac event. I never heard any more about it but withdrew. He was casting about for a new counsel, and the trial consultant asked her, “Who do you know who could come in at the last second? This is a complex case and tries this case.” She said, “There's this criminal defense lawyer in Orange County named Jennifer Keller. She'd do a fabulous job.”
Because he is a venture capitalist and thinks outside the box, he retained me. Morgan, Lewis, & Bockius was on the other side. They are two big trial horses and had a big contingent down from San Francisco to try that case. We tried it in the Lancaster Court in LA. That was another long trial, many months long. I don't remember anymore if it was 4 or 5 or 6 or what, but it was a long trial in front of a wonderful judge who’s deceased, Judge Victor Chavez, one of my trial judges. I'm not alone in that. I think about everybody's favorite judge.
We got a $350 million verdict on that case, and the offer had been $8 million. We settled it in the bankruptcy court for $110 million, maybe. The skills are very easily transferable, which was fun because it was a fraud case, fraudulent discipline, and potential interference. It felt very much like I was prosecuting a fraud case. The nexus of the case was that the CEO, my client, thought he was firing for the purchase of this business that he was about to close on.
It’s secretly owned by the company behind a strawman. He couldn't own it publicly because he was vice-chair of a big publicly traded competitor and had a non-compete. It was a credit card processing company. He was vice-chairman of US Bank. He had a strawman running it. He had posed as a CEO candidate basically to get all the information and screw my client out of the opportunity. It was the day before closing. There were legions of lawyers working on the closing documents. All of a sudden, it was, “No, we're not doing it.”
It was a fun trial. The lawyers from Morgan, Lewis who were supposed to be big trial guys, were very intelligent, and moving papers were great, but one of them hadn’t tried a case in fifteen years or more. The other, I think about the same. They were still trying to use an Elmo. We had everything popping up and underlying, trying to use an Elmo. The jurors were sending out notes, “We're getting seasick. Please make them stop.” That was the first time I realized that because somebody is with a big firm and a big trial attorney doesn't mean they necessarily have tried cases.
Steve Madison was different from Quinn Emanuel. I was against him in the Chapman case. Steve was an excellent trial attorney. He had done an A USA back when they tried cases. He had been a Los Angeles Deputy City attorney and had tried a million cases. He was very skilled. I remember sitting there and admiring one of our witnesses' cross while simultaneously being somewhat dejected. I had to admire it. It was like watching the news closing around somebody's neck. I thought, “This guy is good,” but he was an exception. Quinn Emmanuel prides itself on having a number of people try a lot of cases.
The case that has gotten the most notoriety of you coming in before trial is the MGA case, but you had that role in previous matters. Some people would be, even if they had a lot of child experience, a little concerned about coming in before trial and the case.
The more I practice, the more I realize that some of these things were crazy things to do. Tom Bizzaro, when I was on the verge of taking the MGA case twelve days before trial, said, “What are you doing? You're committing career suicide. You're a well-regarded criminal defense lawyer for your skills now in civil cases. They're going to blame you. This is going to be a loser like it was last time. They're going to say, “It was all because this criminal defense lawyer from Irvine came in and didn't know what she was doing. Why do you want to do this?”
I said, “You're making a big assumption. You're assuming I'm going to lose. I don't think I'm going to lose. Based on what I've seen so far, I haven't had to get into the guts of the case much, but this is a David and Goliath battle all the way. Our client has been unfairly treated by Mattel and was clearly trying to crush a successful upstart competitor. That's all I need to know to think we have a pretty good shot at this.”
Sometimes it's good not to know. The convention is like, “That's not a good idea.” You're like, “No, I can see where this could happen,” and it's good that you don't know that. Sometimes, you would do what others see impossible and achieve it because you see the outcome. You're like, “This is thoroughly possible.” Now looking back, you're like, “I did that?”
In some of the criminal cases that I had where I got amazing outcomes, I sometimes think I could never do that now. My youthful enthusiasm, zeal, and belief in my case and I'd be too objective now. I was looking at that and like, “This is a tough one.” There is at some point in your career, I'm not sure when, where your skills have been going this way on the graph, and your enthusiasm is still high. That's the sweet spot for you.
Later on, you've got the experience and the vision, but you don't necessarily have that same degree of youthful enthusiasm. You're much more aware of the things that can go wrong. One, it helped me as a young trial lawyer. I didn't have an awareness of all the disastrous turns that trial could take. I would plunge in, and fortunately, it worked out pretty well.
I like that graph of the convergence. It has to be perfect and have the skills along with it.
You still have the enthusiasm and the zeal, and that's when you're at your very best. A lot of cases on the pure enthusiasm and skill, but maybe not experienced, and you can win this based on having a tremendous experience too. There's a saying that I love that you always want to get a young doctor and an old lawyer.
It doesn't change that much. Certainly, there've been things that have made it easier in a practical sense to practice, doc review software, for example. It allows firms like ours to compete with mega-firms. We no longer have to send twenty associates with a key to the warehouses. We can do it electronically. We have a fantastic new discovery associate who is smart as a whip and understands how to manage document productions. We're able to keep up with about anybody.
What advice would you have now for people who like you have that glint in their eye and want to do trial work? What advice would you give them? Would it go to the DA or public defender's office?
That's where to get it. There are some insurance defense firms that try cases, but you can get pigeonholed if you go into insurance defense. I don't know that you get a variety of trials. Oddly enough, in criminal defense and prosecution, you see a lot of variety because there are all different kinds of experts that crop up. You learn to be good at the cross-examination of expert witnesses. There are all sorts of different scientific areas you have to learn, including psychiatry and bullet trajectories.
You have to learn a lot about forensic accounting if you're doing fraud cases. There's a tremendous variety of things that you can be exposed to. If you go to the DA's office, you can even do a stint in environmental crimes and talk about directly transferable to civil practice. There is a financial crimes unit. You can see every Medicare fraud, medical fraud, big healthcare fraud cases, and more garden variety stuff, securities cases.
The idea is to get the best results. That is why it's very helpful to have a skilled appellate lawyer at your side.
It's the only way I know of to get that quality of trial experience and also to get such a large amount of responsibility because there is no team around. There are no conference calls. It's you and a file. You should handle it. Retain whoever you think you should retain as an expert. Craft your own investigation request and send your investigator out to find out all the following things. You're completely responsible. It was very seldom that I ever had a supervisor ask me anything about my cases. There'd be, “How's it going?”
Unless it's a death penalty case, it's you in the courtroom. There's nobody else there. You're having to handle everything from paralegal to preparing exhibits to everything. You've got to make all the decisions. Are you going to call your client to the stand or not? Are you going to put on a defense or not? What jury instructions do you want? What special instructions do you want? You have to do all of it. That's the best place to get a trial experience.
One of our senior counsels, Anand Sambhwani, was with the Department of Justice Civil Division. He was trying cases all over the country for the DOJ, mostly breach of contract cases and big dollar amounts at stake. That was a great experience for him because he got to see how all the different districts handle things. He might be in the District of Connecticut one day, the Southern District of Ohio the next, and the Northern District of California the next. He got a great grounding in how district courts handle things.
Being comfortable with that, moving between different courts in that way.
It was him with his file and briefcase and no help, no paralegal Anand trying these cases. It gives you a real comfort level with leading a case in civil practice. One thing I've seen with some of our people who've come out of big firms is they've always been part of a big group. They’ve never led a case. They probably haven't. They might not have taken many depositions.
We had one guy who had been at Gibson, Dunn & Crutcher for eight years and had never taken a deposition that never argued a motion. He had been in the office as part of a group doing written work on a huge case. That was it. That's something you bring to the table when you've been in one of the public agencies doing trial after trial and are completely comfortable leading a case. That's all you've done.
There’s maybe a thinking outside of the box thread. Judge Tina Byrd on the LA Superior Court, who I worked with when she was at Irell, also talked about something similar. She's now in the family law court and said she enjoys it. She sees similarities between that and her experience doing financial crimes work at the US Attorney's Office. She's like, “I'm looking at spreadsheets. There's a lot of economics involved in the family law.” I feel like I can import that comfort level and all of that into family law.” Both her admonition and yours are to think outside the box where you're gathering a number of skills and thinking about what skills you have, not the labels on them, but how those skills can translate to new or different areas.
She’s dealing, for example, with a reach of spousal fiduciary duty cases all the time. It’s a big thing I understand in family law. It’s good when you have spouses hiding from each other right and left. I can see that. It'd be transferable. I enjoy being a generalist. I've always enjoyed it. When I was in the public defender's office at the beginning, people thought I was going to be an appellate lawyer. I enjoyed writs and appeals and did good work, but I wanted to be in the trial court.
Nevertheless, having both skill sets has been extremely helpful. Certainly, when I was in the private practice of criminal defense so low, I had to have both skill sets. I didn't have my law in motion work for the most part until much later. Being a generalist and able to try any case that comes in the door is fun. It keeps your interest level high.
That's how I feel. On the appellate side, I love that it's a different topic, subject matter, and developing issues in the law. It's not all the same case.
It's one thing, though. Those general counsels are sometimes leery. They think they have to have a specialist in whatever field it is. It's easy to get a specialist to tag along with you and tell you anything you need to know. It's not easy for that specialist to try a case. I wish that more of them had that awareness.
The other thing is that even if you are settlement driven, which most in-house people are, you're getting a much better settlement when they're afraid of you. They're not afraid of you because you're a super-specialist. They're going to be afraid of you because at the end of the line, if they have to face twelve good people and true that they're going to get the willies.
We've got some outstanding settlements because the other side is scared. It’s something we bring to the table. We don't seem to have any shortage of business. There are enough people out there who do recognize it, but it's fun. We can go from trying a huge, bad faith case or AIG and turn around and defend Kevin Spacey on his alleged sexual assault case. We’re quite confident we'll win because there's nothing to it. We have quite a range from the city of Costa Mesa to the big life insurance company, to you name it, everything in between, venture capitalists. We've had several huge breaches of partnership cases involving a family wealth of anywhere from $100 million to billions. Those are always fun cases.
Jim Brosnahan, who I'm sure you know, MoFo in San Francisco, he and I were chatting one time about a case I had where it was a massive amount of family wealth. The knives were out. They were carving each other up over it. Jim said, “You know when these cases wherein families have that money, there’s always enough to go around, but it doesn't.”
That's a solid observation. Yes.
There's a guy who is a magnificent trial or who tried cases well into his 80s. The other nice thing about being a trial where is you can keep going until you can't keep going. The skills are the same. They're not going to go away, assuming that you don't have some dementia. If your brain is working, you can get into the courtroom and keep going. Some top trial lawyers have done their best work in their 70s. I'm not planning to retire. I wouldn't say I want to die with my boots on because I don't wear boots.
I love reading the records that you create and working with your team. I'm glad that you're not planning to stop doing that anytime soon. That's good.
We let you make us better, and that's the idea to get the client the best results. It's very helpful to have a skilled appellate lawyer at your side, especially in things like jury instructions and other aspects of the record. Knowing what motions to bring or not to bring and because something's meritorious and you might win doesn't necessarily mean it's a good idea. You can take a perfectly good word, take it one step too far, and give the other side an appellate issue that you don't need to hand them. You're good at that strategic advice.
There are so many things you can do on the trial card. I love being involved much earlier because we're looking at the big picture strategy. Here's something else to think about when you're making a decision, both for the client and the trial lawyer, you can do that. I want you to win. I want to be an appellee, but let's see what that might do down the line and sometimes be able to think about things in different ways. If there's an evidentiary argument for something, but maybe there's a legal thematic argument, you can add to that. It will make it better or add to the reasoning that's there for appeal.
Even sometimes clarifying things like, “That's not clear to me what the judges are precluding and what the judge is allowing,” you want to make that clear. What is the ruling? What's the scope of that on the evidence for the record, so it doesn't look like you chose not to do that? You are prevented from doing that. It's fun to be able to add some input on.
Are you ready for a lightning round of a few questions, Jennifer, to close up?
Sure.
Which talent would you most like to have but don't?
It’s organizational ability. I am not the world's most organized person. My brain and my desk aren't that organized. Ideas come in and out all the time. I sometimes wish that I were better organized and less of a procrastinator. They go together. I'm very lucky to have Kay Anderle as the managing partner of the firm because I will get an idea and start free-associating with the idea. Before I finished the sentence, Kay was sitting at the keyboard and starting to make it happen. Left to my own devices, I get lots of ideas that don't get followed through on.
That's knowing your strengths and having partnered with someone who has complementary strengths.
She's great at making all the things that need to happen for a successful business. I've surrounded myself with lawyers who are extraordinarily organized.
I was going to say that's okay because you have others who fill in, but you have to know yourself and know these are my strengths. These may not be my strengths. Having someone who has strength is a good compliment.
What’s fun about our firm right now is that we're in that sweet spot where we have some of the people from big firms who are wonderful writers and researchers and have worked on huge cases. We've got two former federal public defenders, fabulous trial lawyers who were always at the top of their game. We've got people who are sticklers for the procedure and understand how to use the civil procedure to their advantage and how not to run foul of the rules. I spill out ideas all the time and some of them are not as good. I keep a handle on every one of our cases about everyone except for a couple of smaller ones. It's great because we work as a unit, a well-oiled machine. It's the first time I've had the luxury of this firm around me. Everybody's good.
I was going to say it's so gratifying because you've moved forward and expanded the kinds of cases you work on. The environment and the team that you have. Starting from you in the defender's office and even prior to that. It must be gratifying because you also built that team, which is also nice.
We had to kiss a lot of frogs along the way, but Kay and I were pretty intentional about what we wanted to put together and the skills that we wanted to have. We’re matching up people with big firm backgrounds with people from the criminal justice side or on-it case and meshing those two. In the office among us, we have over 400 jury trials. That's a lot of trial experience.
We have some wonderful people, one from Munger Tolles and one who was with Gibson Dunn for sixteen years, one who was a judge, Virginia Phillips’ law clerk for two years. He was at Latham at one point. We have some very talented people top to bottom. There's an old saying that A people hire A people and B people to hire C people. I'm probably an A-minus person who's hired a lot of A-plus people, and that's how I like it. I want everybody to be smarter than I am. I have that experience at our firm.
It's more fun that way. I like that too.
Kay and I often joke that we've created a firm that wouldn't even interview us. That's a slacker. The law school's not cool. This person has no law review. What's this person been doing?
You need a variety of skills and strong points. Who is your hero in real life?
Do I have a hero? I saw a series about him. Benjamin Franklin is on my mind because he was brilliant and good at many things. He was a scientist and good at statecraft. He was an inventor, a publisher, and a writer. He was way ahead of his time. He enjoyed life. He wasn't an anesthetic. He was a gourmet and a gourmand. He was able to learn multiple languages. He was an autodidact. He had very little formal schooling.
He was somebody who, in many ways, was as responsible for the founding of this nation and the setting up of its laws as anybody out there. We think of Jefferson and his grounding in the enlightenment as being maybe the prime mover. Franklin had a longer view than any of them. He was older than they were. He was under the actuarial tables of the day and should have been dead 30 years earlier. He was a long thinker. That famous comment of his coming out of the invention of what do we have, what country do we have? He still didn't know if we were going to have a king. He said a republic if you can keep it.
That's about as true as it was back then. I don't know about a hero, but a figure of great fascination for me has been Franklin. He put himself at risk many times, both in terms of public opprobrium and physical risk of crossing the seas in bad weather on relatively rickety boats to serve his country. Nothing ever stopped him from speaking his mind, even when he was being criticized horribly. He took a long view. He was in both diplomacy and other areas. He's certainly a figure of great fascination for me. In his own way, he was quite courageous. He was too old to charge into battle but charged into battle in other ways.
We live in a time when so many people were so timid. They're afraid to say anything or speak up against tyranny, sedition, and insurrection, all of which we've seen in this country at its very highest levels. Many people are afraid to say anything because I don't want to seem political. You’re not political when you're speaking up for your country, continuing to exist in the way that it has. It's amazing how little it takes to scare people.
That's one of the things that's amazed me throughout my life, how little it takes to scare people. It's not a gun to the head. It's not risking your life and limb. It's not risking losing everything you own financially. It’s even risking being criticized is too much for a lot of people. Ben Franklin was not afraid and could have been hanged for treason. That was a very real possibility at the time that the revolutionaries could all end up being hanged. They had a lot of courage. He had a lot of courage, and I admire him greatly.
Courage is important, especially in times you noted, but I hope we have others like Franklin who will stand up and have that courage.
We do have some, but the other saying that is constantly popping into my mind is that all that is required for the triumph of evil is for good men to do nothing. We have a lot of good men doing nothing and women. Anyway, that's my sermon for the day.
This might lead to the next question, given the choice of anyone in the world, who would you invite to a dinner party? Perhaps Mr. Franklin would be one of them?
I would definitely invite Mr. Franklin. I would love to invite Barack Obama to a dinner party and Hillary Clinton. I'd like to have both of them. John F. Kennedy would be a delightful dinner companion. Intelligent, witty, and well-traveled, he would have been a wonderful dinner companion. While he's in some ways falling out of favor, I can't imagine a better dinner companion than Winston Churchill. I would love to have dinner with Indira Gandhi. There is another fascinating and courageous person that would be full of interesting perspectives.
It’s even more interesting if you had all of them together at the same dinner party, that would be something else. Last question, what is your motto, if you have one?
Don't look back. Something might be gaining on you. That was Satchel Paige. That one and the other model that has served me well is, “Because your paranoid doesn't mean they're not after you.” I love that. The first time I read Satchel Paige’s Don't Look Back. Something might be gaining on you. I thought that is a life motto in so many ways on so many levels.
Keep moving forward. You can't change what already happened. You got to keep moving forward. The next phrase completely pivots that on its head. It's two things in one. It's smart in that way.
When you consider that he was finally able to pitch in the Major Leagues in his 40s, he was still a dominant pitcher. He was such a fantastic athlete. That was the other thing, and he didn't want to say how old he was. He claimed not to know exactly but didn't want to say either. He didn't want to be the victim of ageism. If he told people he’s 48 years old, would they want to start him in a game? That was his other famous quote. When they said, “Come on, Mr. Paige, how old are you?” He said, “How old would you be if you didn't know how old he was?” I asked myself how old would I be if I didn't know how old I was. I'm thinking maybe 45.
Twenties, that's too young. It's got to be something else.
Forty-five is a good age. Not to make as many dumb mistakes as you make when you're younger, you still make some, but you've come into your own. You've got a little life experience here. You're not old enough. Most of us who are fortunate are not old enough to have started experiencing a lot of serious illnesses at a pretty good age. I like it. It’s pre-menopausal. All of that stuff, for a while, my medicine cabinet looked like it belonged to a witch. It had wild yam root.
Those are good times to have behind you. I was standing in front of a jury when I was going through the change. I was doing voir dire and suddenly, a sheet of sweat started coming down. I could feel my face turning bright red, and I started sweating like crazy. What could you do? I leaned over to the council table. I took a bunch of tissues and said, “Ladies and gentlemen, what can I say? I'm a woman of a certain age.” They all started laughing and looking so concerned. One of the jurors said, “My wife's going through that.” Another one said, “I remember when my mom went through it.” What can you do?
It’s very authentic, relatable, and own it. That's what's going on.
That was not fun, though.
All the different phases of life and don't look back as it were. Jennifer, thank you so much for talking about your journey insights and sharing your story with others. Thanks so much for joining.
Thanks for having me. It was a lot of fun.