Santa Clara University

On Trial

California Trial Court Legends Trace Roots to Their Santa Clara Law Education

BY RITA BEAMISH B.A. ’74 PHOTOGRAPHY BY CHARLES BARRY

A good teacher. A good listener. An excellent communicator. Adept at simplification. Intensely prepared. Imbued with a hefty dose of confidence. If you have to stand before a judge and jury, no litigator’s briefcase is complete, the experts say, without a healthy combination of these traits. They are the keys to delivering what every client wants—a case so strong that it will blow away the opposition, whether you’re representing the citizenry at large or one consumer, whether taking on a Fortune 500 corporation, a media favorite or the government itself.

Santa Clara law graduates are among those who have perfected these skills and used them to build reputations that mark them as top litigators in their fields, repeatedly singled out by legal publications and industry press as the go-to attorneys for courtroom representation.

Clockwise from top left: Ron Malone ’71, Ed Rudloff ’72, Dan Kelly ’69, and Mary Alexander ’82 gather in the San Francisco offices of Walkup, Melodia, Kelly, Wecht & Schoenberger.

“We’ve had a history of turning out some great trial lawyers at Santa Clara,” says Professor Gerald Uelmen, who as dean built on that tradition by establishing the Heafey Center for Trial and Appellate Advocacy seven years ago. The center has drawn to the campus some of the nation’s preeminent trial lawyers and appellate advocates, including the late Johnnie Cochran in his final public event, Michael Tigar, and Tom Girardi. Whether demonstrating how to persuade juries with video clips or explaining ways to convince the Supreme Court to hear a case, these professionals, through seminars and lectures and personal interaction, expose students to the kind of expertise they may one day face in a courtroom.

The emphasis on advocacy is hardly a stand-alone discipline, serving instead to bolster and complement areas where Santa Clara already has a strong reputation, like high tech law and social justice.

“Effective advocacy cuts across all of these areas,” Uelmen notes. “In the high tech field effective advocacy is a key element to success; in social justice you need good trial lawyers to take those issues into the courts, and good appellate lawyers to present them in the courts of appeal. This is an area that cuts across all of our areas of emphasis…appealing not just to the law students who want to be public defenders or prosecutors, but those focusing on other genres as well.”

Fighting the Justice Department

If trial lawyers suffer an image stereotype that makes them an easy mark for political vitriol and comedy fodder alike, Santa Clara alums who have become leading litigators don’t let it sway their conviction that everyone going to court deserves a lawyer, and a tough one at that. Take Dan Wall ’80, the former antitrust litigator for the Justice Department who turned the tables on his old employer last year to wallop the government in its antitrust suit against Wall’s client, Oracle. It’s not every day that an attorney beats Washington’s legal stable, and Wall’s victory wowed the legal world, winning the National Law Journal’s nod for top defense win of the year— “deft lawyering by Wall and two colleagues,” the magazine called it.

“It’s not very often that companies fight the Justice Department on these matters,” Wall says. “It used to be that they (the government) most always won. It was lunacy to fight them. In recent years it’s become more of a horserace.” And for his money, it’s a race well worth running: “I think a lot of companies made some wrong decisions in caving on these cases over the years.”

A partner in Latham Watkins’ San Francisco office, Wall has represented such giants as Genentech, Intel, Compaq, and Eastman Kodak. He traces his antitrust specialization to a law school class taught by George Alexander. The topic, he decided, “had the intellectual depth and the analytics that made it a good mind puzzle. I liked that openended- facts-and-circumstances kind of inquiry because it gave a lot of opportunity for creativity.” Strong courtroom technique, he says, is akin to teaching. “Good teachers are patient. They start at the beginning, not the middle…. You have to start basic and have the patience to build stories from the elemental to the more sophisticated, and you have to do it in plain language, simple examples.”

Discerning Donor Intent

When he looks back on his long agowork in the Justice Department— locking up mobsters, reading Lee Harvey Oswald’s old mail, grilling top government officials, and wrapping up the Watergate investigation— San Francisco attorney Ron Malone ’71 amazes even himself.

Ron Malone ’71 sees his trial work as a form of public service. He gets “wound up” he says, “when I see people taking advantage of someone who was not only incredibly generous but who is not there to defend himself.”

“Those six years were unbelievable from the very beginning,” he says of his time as a young lawyer in the thick of one of Washington’s most tumultuous eras. Sworn in to the legal profession by Supreme Court Justice William O. Douglas and mentored by former Watergate special prosecutor Charles Ruff, Malone tried racketeering cases that once led to a bounty on his head, and he investigated the CIA itself, specifically its broad Cold War mail intercepts, which found him interviewing officials and generals from then-Vice President Nelson Rockefeller on down. “I had access to virtually any government secret,” he says. On his way out of town to study for an LL.M. at Harvard, he drove past the White House where a helicopter waited to ferry Richard Nixon into life as a disgraced expresident turned private citizen.

Today, Malone, a partner with Shartsis Friese & Ginsburg, makes a practice of standing up for the wishes of deceased philanthropists as one of the nation’s leading fiduciary litigators.

A specialist in the field of “donor intent,” he has represented charitable trusts with billions of dollars at stake, including a groundbreaking case involving the Leonard and Beryl H. Buck Trust of Marin County, and an ongoing, closely watched case involving what Malone says is Princeton’s mishandling of more than $600 million from the Robertson Foundation.

Malone sees his trial work as a form of public service. He gets “wound up” he says, “when I see people taking advantage of someone who was not only incredibly generous but who is not there to defend himself.”

He traces his trial skills to law school lessons on “the ability to make complex subjects simple by distilling the essentials. You want the jury or the judge to come away from the trial thinking that my guy was an honorable person who tried to do the right thing,” he says, “and that simple theme is what has won every one of my trials.”

IP Made Easy

“I like the kind of case where you’re really up against the big guy. You go in bare knuckles. You’re dropping your gloves and you fight it out,” says Terry McMahon B.A. ’72, J.D. ’76.

Simplifying material for the courtroom doesn’t get much more challenging than in intellectual property, and that’s Terry McMahon’s specialty. Recognized among the nation’s top I.P. attorneys, McMahon B.A. ’72, J.D. ’76, prides himself on translating high-tech into layman’s terms, delivering his message with his trademark graphics and cartoonish drawings. “I consider myself kind of an everyman.

If I can understand it, everyone can understand it,” McMahon says. The head of McDermott Will & Emery’s I.P. practice in the West, McMahon cut his courtroom teeth on fender-benders and slip-and-falls after graduating from Santa Clara, eventually making his somewhat happenstance segue to the intellectual property niche when, representing Apple Corp. in the early 1980s, “I figured out that it was a burgeoning trial area.”

While trying major cases, he built McDermott’s I.P. team from a handful of lawyers to 60, representing many of Silicon Valley’s big names and taking on industry powerhouses like Hewlett-Packard, Compaq, and Lucent. He has beaten Intel in court three times, including a “bet-the-company” copyright infringement defense for Advanced Micro Devices, then a small microchip maker.

Never mind the intense pressure and high stakes of his work, McMahon, who also teaches I.P. litigation at SCU School of Law, describes himself as “at my calmest and happiest when I’m in trial.” Arguing over a set of facts, meeting the creative challenges to persuade a jury, is “a great joy,” he says. “Especially when you win.” And when it’s David against Goliath, it’s extra satisfying to McMahon. “I like the kind of case where you’re really up against the big guy. You go in bare knuckles. You’re dropping your gloves and you fight it out.”

Looking out for the little guy

Dan Kelly ’69 says his Santa Clara education gave him an ethical code that helps him moderate his tone even in acrimonious cases. “You maintain a sense of civility regardless of the rigors of the trial.”

If there’s anyone who knows about standing up for the little guy, it’s personal injury litigator Dan Kelly ’69, partner in San Francisco’s Walkup, Melodia, Kelly, Wecht & Schoenberger. In more than three decades with the firm, Kelly, an SCU regent and a two-time San Francisco Trial Lawyers Association trial lawyer of the year, has faced off against big corporate interests many times, and in the process he’s heard his share of tragic client stories. There was the English couple who watched horrified as their two children fell, one fatally, from a malfunctioning ski lift at Lake Tahoe. Kelly won them seven figures in wrongful death and emotional distress damages. And there was the brain-damaged boy whose family sued a county hospital where the boy was taken for a schoolyard injury. The case, which Kelly as a fresh-faced lawyer tried with thensenior partner Bruce Walkup, reaped what was at the time the largest verdict on record—more than $4 million, Kelly says.

Daily immersion in human drama can be draining, but a litigant has to keep his focus, Kelly says. “You realize that if you put out your heart to every one of these people and viewed that as your job, there would be nothing left of you. You have to keep your sense of empathy but realize that your function is to represent them, be mindful of their plight but not speak to them in just platitudes. You have to remember that they came to you in your role as a lawyer.”

Kelly believes personal injury work also has a broader benefit, particularly in product liability cases where defendant companies may improve their products, be they cars, breast implants, or drugs. “It’s lawsuits that point out, ‘hey you have a problem here.’ Then there’s a reaction,” he says.

Kelly says his Santa Clara education gave him an ethical code that helps him moderate his tone even in acrimonious cases. “You maintain a sense of civility regardless of the rigors of the trial…. I don’t have a personal vendetta against the defendant or defense counsel. My job is to present the case as best I can for my client.”

Attorney Activist

“The biggest challenge of being at trial is representing the average American against great odds, large corporations that don’t treat people fairly. I feel very proud to do it,” says Mary Alexander ’82.

Trial lawyers might feel that they don’t get much civility from the political realm, where they are a favorite whipping boy at election time. One common refrain is that lawyers and their lawsuits create a more costly society, but consumer attorney Mary Alexander ’82 doesn’t hesitate to turn the tables on big, moneyed accusers. “We are the scapegoat, and the irony of it is we are actually the ones that stand in court for the little guy. They know we are what stands between them and being able to make products with impunity,” says Alexander. The San Francisco litigator, who has scored big wins in cases ranging from a pedestrian mowed down by a San Francisco bus, to asbestos and bicycle product liability lawsuits, has been a leader in driving home those points as an activist and past president of the American Trial Lawyers Association. She also led the ATLA two years ago in fighting efforts to curtail lawsuits against drug companies and others.

During her tenure at ATLA, Alexander helped organize thousands of attorneys to provide pro-bono legal services to victims of the 9-11 terror attacks, the largest ever probono effort and one of her proudest accomplishments—“Trial lawyers at our best, doing what we do every day—representing people hurt through no fault of their own.” It was her interest in health and environment that steered her to law when she began to wonder what occupational hazards might have contributed to her husband’s leukemia and what laws might have protected him. She says she decided to devote herself to “fighting for the ordinary person, fighting for the voiceless and the powerless.”

“The biggest challenge of being at trial is representing the average American against great odds, large corporations that don’t treat people fairly. I feel very proud to do it,” she says.

Taking Risks for the Client

If there is a perception that lawsuits mean more trials than ever, the truth lies elsewhere, according to the American Board of Trial Advocates and the ATLA. They say there are far fewer trials than in years past, with some 97 percent of civil cases settled outside of trial. That’s not a good trend in the view of Rick Watters ’73, a personal injury litigator in the Fresno firm of Miles, Sears & Eanni.

Watters is dismayed by the drop off in trials and believes lawyers often shy away from trial out of inexperience and lack of confidence, a reticence that begets a cycle in which they never gain the experience because they don’t go to trial. “A lot of lawyers don’t want to go to trial. They’re not equipped to go to trial. They’re afraid of going to trial; they haven’t done it,” he says, underscoring a point he made on campus while receiving an Alumni Special Achievement award this year. “It’s good to resolve cases but there are some cases that should go to trial. What if you represent someone who is paralyzed and say it’s a product liability case, an airplane crash, defective seats, and your client’s paralyzed? They make you an offer that would barely cover the medical bills and expenses.” If there is a cogent case to be made for liability, the attorney must so advise his client, he says. “The lawyer has to recommend to his or her client to go to trial because the risks of trial are outweighed by the benefits of going in those circumstances.”

The competition of the courtroom is what drives Watters, who has racked up 74 trials to verdict in federal and state court. “I like to take risks in cases where I think it will benefit my client,” he says. Whether it’s going up against a Finland firm for a worker’s death in a rock-crushing machine, fighting for airplane crash victims, or setting a product liability legal precedent when a mechanical grain harvester smashed a man’s arm, Watters is proud of the multi-million dollar awards he wins, as well as the smaller amounts that still hold companies to account.

Defending Doctors

Being a trial lawyer also can take attorneys to places never quite anticipated. Just ask Pebble Beach-born Dennis Thelen ’78 who has spent more than a quarter century contentedly ensconced in Bakersfield where his law practice is booming and he is about to try his 100th case. He is happy to report that his adopted hometown is in every way more pleasant than the common perception of a 100-plus-degree fueling stop along the eastbound freeway. “It’s not really that hot all the time,” he laughs.

Thelen decided to have a look at Bakersfield following law school when another SCU law grad, David Lampe, put out the word that a local firm was seeking new lawyers. Thelen liked what he saw, but figured he’d stay just for a couple of years’ experience, and then move on. By 1985, however, he was ready to start his own firm, LeBeau-Thelen, along with his law school friend Bernie LeBeau, whom he had lured to his new home town. Lampe also was a founding member.

Thelen developed an expertise in malpractice litigation and spends most of his time defending physicians. It’s a specialty to which he may be genetically suited. Thelen’s dad was a neurosurgeon, his brother a rheumatologist, and his mom a flight attendant back in the days when stewardesses were expected to be nurses as well. “I continue to get a lot out of representing doctors,” says Thelen. “I know that doctors work very hard.”

Insurance Industry Attorney

“Most jurors are very skeptical. It takes a lot to win them over. I try to put on a smiley face and let them know that insurance companies are really made of people like you and me,” says Ed Rudloff ’72. “It’s very difficult.”

Ed Rudloff ’72 has been to jury verdict more than 100 times, but when asked for his most memorable case, he reaches back to his post-law school days as a prosecutor in San Francisco. That’s when he helped put away four defendants in the notorious Golden Dragon Massacre involving the killing of five people and wounding of 11.

“If someone said to me when I was in the district attorney’s office, ‘You’re going to be working for insurance companies,’ I would have said, ‘You’re nuts.’” Rudloff now says. “I have absolutely no affinity or relationship with the insurance industry at all.”

But that in fact is where Rudloff found his niche after six years as a prosecutor, and today he tries cases for some of the biggest names in insurance. His firm, Rudloff, Wood & Barrows, specializes in property insurance law, often litigating for carriers in claim disputes arising from disasters like the Loma Prieta and Northridge earthquakes, major fires, and hurricanes.

Representing an industry that comes in for its share of public abuse, Rudloff has had to get used to being on the defensive. He finds himself well-practiced in explaining that “there is some good in the insurance industry,” he says. “Most jurors are very skeptical. It takes a lot to win them over. I try to put on a smiley face and let them know that insurance companies are really made of people like you and me…. It’s very difficult.” Nonetheless, he manages to win more cases than he loses, a lot more, and that keeps the likes of Travelers and Farmers and State Farm coming back.

The challenges of reaching jury verdict more than 100 times, he said, add up in stress. “It has a way of aging you far too quickly. It’s very high pressure. It puts a lot of years on you.”

For law students, says Professor Gerald Uelmen, highlevel moot courts are a clear demonstration “that what they’re learning in law school is relevant to what’s going on out there. They’re seeing the cutting edge issues that are in front of the Supreme Court right now.”

No Surprises

The pressure means that lawyers have to be quick studies more than ever before, Uelmen notes. Whatever their client specialty, they invariably must master complex technical issues, both in terms of content and in courtroom presentation. They need endless preparation to make sure that nothing at all comes as a surprise during trial. The Heafey Center gives some insight into what that pressure is like by sponsoring moot court sessions for attorneys who are preparing to argue their cases before the U.S. or California Supreme Court.

For the students, says Uelmen, these high-level moot courts are a clear demonstration “that what they’re learning in law school is relevant to what’s going on out there. They’re seeing the cutting edge issues that are in front of the Supreme Court right now.” One day, those insights will travel with them as they walk through the courtroom doors and proceed to the counsel’s table.