Seduced by Trial Law

Q: How long have you lived in Texas?

A: I lived in upstate New York in the Catskills for about eight years, moved to Fort Worth in 1957. Moved to Houston in ’71 and this has been our home for 40 years.

Q: Did you always plan to do commercial litigation?

A: I came to commercial litigation with malice aforethought. I started my career in 1971 at Vinson & Elkins as a trial lawyer in their insurance defense section trying personal injury, insurance defense cases, malpractice, products liability and the like. I did that for three years and I decided during that period of time that I really wanted to go for my own law firm and that I wanted to take the experience that I had in trying cases and apply it in a commercial litigation context. I wanted to build a law firm and a practice that centered on commercial litigation rather than personal injury practice. So that’s what I did.

Q: Do you remember the moment when you became interested in law?

A: I vividly recall it: When I was about 17 years old, I had an uncle named Pat Maloney in San Antonio who was a high-profile plaintiff’s personal injury lawyer, and Pat used to talk to me for hours about his cases. I became fascinated with the law, and particularly with trial law, based upon that. I was entirely seduced by the concept and from that point on, I never wanted to do anything else but be a trial lawyer.

Q: What about trial law do you love?

A: It provides an opportunity for you to be the producer, the director and one of the chief protagonists in the presentation of the production, which is a trial. It provides tremendous intellectual stimulus, obviously, and of course it provides plenty of excitement and risk because at the end of a trial, a jury is going to come with a verdict and there’s going to be a winner and there’s going to be a loser. It really combines, from my point of view, the best of all things that any profession or business opportunity has to offer.

Q: How large is your current firm?

A: We have 30 lawyers. Our philosophy has been to control the growth as tightly as possible. You have to achieve a certain gravity, I suppose, in order [to handle] quite a number of high-stakes, bet-the company-type cases at a time, so you need to have enough lawyers, to field a team of lawyers, to do that. At the same time, there’s little to be gained in our simply adding numbers. We run this firm pretty much as an old-fashioned partnership, and intimacy, and the people you practice with, are of paramount importance.

Q: What’s the biggest recent piece of complex litigation you’ve worked on?

A: The [Port of Houston] case. We worked that case up for the better part of a couple years before it went to trial, which is pretty typical.

The Port case was one in which we were representing Zachry Construction company, which was the contractor; the Port was the owner, and it was a wharf facility over near the Houston Ship Channel that we were contracted to build. Under the contract, the contractor had the right to select the means and methods by which to do the work, and the key part was the use of what was called “freeze wall technology.” That simply meant that the site along the water’s edge was going to be kept dry by creating a frozen earth wall around the site. They undertook to do the work using that methodology, and, well-advanced into the project, the Port—without any genuine justification—declared that they didn’t want that methodology used. That was a breach of the contract, we said. Our clients nonetheless finished the project, but it had the Port’s interference and breach [which] had disastrous consequences for these schedules. And, as a consequence, Zachry incurred many millions of dollars in cost overruns, which the Port refused to pay. So we brought the suit on behalf of Zachry. The jury heard the case for three months and returned the verdict for $18.75 million. Now the case is on appeal.

Q: With the amount of work a trial like that takes, can you achieve work-life balance?

A: One of the happily and sadly inexorable truths about being a trial lawyer is you have to work enormous hours. It is a very interventionist lifestyle and there is just no way around it. If you’re not prepared, it’s going to show, and it’s not going to go well for you. There’s just no way I’ve ever seen to avoid that aspect of it; and that’s a lifestyle choice because it ripples through your entire life.

Q: How do you make it work?

A: We delegate a lot of responsibility to [young lawyers] early. As a consequence, they are not only well-trained, I like to believe they’re also enormously well-prepared. By the time we get to the trial, those things give good cause for me to have a lot of confidence that our trial team has got an edge, and it’s proved to be the case over the years. You have to maximize your preparation, and you have to take any little advantage you can. Your young lawyers are a key to that.

Q: That’s interesting—you show a lot of confidence in your young staff.

A: No lead lawyer can run around and take all the depositions in the run-up to a major trial of a major complex case. You have to rely on your partners and your associates to take a major role as you proceed to trial. So it serves any firm’s interest to train its lawyers as quickly and effectively as possible.

Q: Do you have a preference between plaintiff and defense law?

A: No. First off, I enjoy both of them. My view has always been if you’re the only trial lawyer in a small town, you wouldn’t have a choice when people come to you. You would take whatever case you could. I think it makes you a better defense lawyer if you know how to try plaintiff’s cases and vice versa. So I’ve always felt that in the commercial area, you were well-served if you would take on and learn how to try cases on either side of the docket, and that’s what we’ve done. I guess on balance, I really enjoy the risk-reward of plaintiff cases, where you might have more personally on the line than in other circumstances.

Q: What’s the run-up of a trial like for you? What do you do the night before and directly afterward?

A: In the run-up to trial, much to the chagrin of my wife, Lela, and earlier in my life to my children, it required me to isolate myself to some degree and become pretty much unifocused on the case. On the evening before, usually I go out for a nice dinner with my family or friends, but by that point you’ve usually spent a month in the preparation phase, where you’re sort of sequestered. On the back end, the deflation you feel at the end of a trial, whether you win or lose, is enormous. It takes two or three days for it to sink in that you’re actually done with something that’s been going on for months of totally intense committed time.

Q: What advice do you give to your new hires?

A: Well, first, I encourage them to go buy as much house as they cannot afford so they get highly leveraged and remain highly committed to the practice. [Laughs]

On a serious note, I try to convey to them that they are going to experience in our firm and partnership the opportunity to take on a lot of responsibility early, and I encourage them to aggressively do that.

The second thing we tell young lawyers is we have plenty of adversaries in our line of work, and all the adversaries we need are on the outside of our law firm. People are not going to advance themselves within our firm at the expense of other young lawyers. Everybody here will be graded and assessed on their own merits, and therefore they can sleep well at night knowing if they do their job and take that responsibility, internal politics is not going to be an issue in their advancement and enjoyment of the practice of law.

Q: Tell us about the Bee Gees thing?

A: Well, over my lifetime people have repeatedly confused me with the Bee Gees member [Robin Gibb]. Yes, I’ve had many people make jokes about that or make reference to that. And my thoughts are that, over the years, I’ve been able to drop that name and get a lot of reservations at places for dinner that I couldn’t have otherwise gotten in.