LIONS OF THE TRIAL BAR
CLE Credit: 1.0 ethics
Friday, June 19, 2015
12:30 p.m. - 1:30 p.m.
Bluegrass Ballroom
Lexington Convention Center
Lexington, Kentucky
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TABLE OF CONTENTS
The Presenter .................................................................................................................. i
Lions of the Trial Bar ....................................................................................................... 1
Bernie Nussbaum – From Watergate to the World Trade Center ......................... 3
James Neal – Hating Losing More than Loving Winning .................................... 11
Joe Jamail – Keeping It Simple .......................................................................... 17
Fred Bartlit – John Wayne in a Pin Stripe Suite ................................................. 23
Bobby Lee Cook – Kickin' Asses that Needed Kickin' ........................................ 29
James Brosnahan – Defending Clients, Not Movements ................................... 35
Richard "Racehorse" Haynes – The Man They Call When
They're in Texas-size Trouble ............................................................................ 41
THE PRESENTER
Mark Curriden
3888 Everwood Lane
Addison, Texas 75001
(214) 232-6783
[email protected]
MARK CURRIDEN is a lawyer and journalist for The Texas Lawbook, The Dallas
Morning News, and the ABA Journal.
He is the author of the best-selling book Contempt of Court: A Turn-of-the-Century
Lynching That Launched a Hundred Years of Federalism. The book received the
American Bar Association's Silver Gavel Award and numerous other honors. Mr.
Curriden also is a frequent lecturer at bar associations, law firm retreats, judicial
conferences and other events.
From 1988 to 1994, Mr. Curriden was the legal affairs writer for the Atlanta JournalConstitution, where he covered the Georgia Supreme Court and the U.S. Court of
Appeals for the Eleventh Circuit. He authored a three-part series of articles that exposed
rampant use of drug dealers and criminals turned paid informants by local and federal
law enforcement authorities, which led to Congressional oversight hearings. A related
series of articles by Mr. Curriden contributed to a wrongly convicted death row inmate
being freed.
The Dallas Morning News made him its national legal affairs writer in 1996. For more
than six years, Mr. Curriden wrote extensively about the tobacco litigation, alleged pricefixing in the pharmaceutical industry, the Exxon Valdez litigation, and more than twentyfive cases before the Supreme Court of the United States. He also authored a highlyacclaimed sixteen-part series on the future of the American jury system. As part of his
extensive coverage of the tobacco litigation, Mr. Curriden unearthed confidential
documents and evidence showing that the then Texas Attorney General, Dan Morales,
had made a secret deal with a long-time lawyer and friend in which the friend would
have profited hundreds of millions of dollars from the tobacco settlement. As a direct
result of his articles, the U.S. Department of Justice opened a criminal investigation,
which led to the indictment and conviction of Mr. Morales.
For the past twenty-five years, Mr. Curriden has been a senior contributing writer for the
ABA Journal. He is the recipient of many awards for his legal writing, including the
American Bar Association's Silver Gavel Award, the American Judicature Society's Toni
House Award, the American Trial Lawyer's Amicus Award, and the Chicago Press Club's
Headliner Award. Twice, in 2001 and 2005, the American Board of Trial Advocates
named Mark its "Journalist of the Year."
From 2002 to 2010, Mark was the senior communications counsel at Vinson & Elkins.
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LIONS OF THE TRIAL BAR
Mark Curriden
Reprinted with permission from http://www.abajournal.com/magazine/article/
lions_of_the_trial_bar.
Their names can be found in the pages of casebooks and on the sides of law school
buildings. They've tried some of the most important cases of the last fifty years, dazzling
juries and swaying judges. They've won – or saved – billions of dollars for their clients,
and become wealthy men in the process.
They've also represented the guilty and unpopular because they thought it was the right
thing to do. They are the lawyers most of us secretly wish we could be, if only for a day.
And now they're in the autumn of their careers.
Fred Bartlit. James Brosnahan. Bobby Lee Cook. Richard "Racehorse" Haynes. Joe
Jamail. James Neal. Bernie Nussbaum.
These seven lawyers are among the best litigators in America. Strike that. Most of them
consider the word litigator an insult. They're trial lawyers.
They're all past – in some cases, well past – seventy years of age, but when the nation's
largest corporations and most important people face serious trouble, they still turn to
these seven old-timers.
That's because, as the number of trials in the United States seems to be approaching
zero, there are fewer and fewer trial lawyers with the experience to take their place. (See
"The Endangered Trial Lawyer.")
Says U.S. District Judge Royal Furgeson, who's seen several at work in his San Antonio
courtroom: "They represent a breed of lawyer that I fear is on the verge of extinction."
But before they go, they've got some tales to tell – stories that are timeless, provocative,
profane and laugh-out-loud funny. And most of them are even true.
Sit back, pour yourself a drink, and learn how it was done back in the day. Class is in
session.
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BERNIE NUSSBAUM
FROM WATERGATE TO THE WORLD TRADE CENTER
Bernie Nussbaum remembers the conversation as if it were yesterday. Thirty-five years
ago, the U.S. House Judiciary Committee hired the New York City trial lawyer to lead its
effort to impeach President Richard Nixon.
Nussbaum was driving his team of young lawyers to their apartments in his Oldsmobile
Toronado, when one mentioned her boyfriend from Yale Law was visiting the next day.
"What is his law firm?" Nussbaum inquired.
"No law firm," the lawyer responded. "He's moving back to Arkansas to run for state
attorney general."
"That's crazy," Nussbaum responded. "He should get a good job with a New York law
firm."
"Well, he's thinking about running for governor," she continued, "because one day he's
going to be president of the United States."
Nussbaum immediately stopped the car.
"I started yelling at her, and I mean literally screaming, 'That is stupid. That is absolutely
crazy. That is not going to happen.'"
The junior staffer was Hillary Rodham and her boyfriend, of course, was Bill Clinton. The
Clintons obviously didn't hold a grudge against Nussbaum, as President Clinton named
him White House counsel in 1993. And displayed prominently in his thirty-first-floor
Midtown Manhattan office is a 1974 photo of him with young Rodham – a photo taken
within a few days of his outburst.
Still, Nussbaum, who is seventy-two, starts many conversations about himself by
deflecting attention to his senior partner Herb Wachtell.
"I joined Wachtell Lipton when I was twenty-eight and Herb Wachtell and Marty Lipton
were thirty-three," he says. "They seemed so old to me back then. Hell, they still seem
old to me. Compared to them, I'm still a junior partner."
"Really, we're still just a small, quiet law firm," he continues, far too modestly. "We do a
will here, an estate there. Nothing too big."
Nothing too big includes the multibillion-dollar jury verdict Nussbaum won in 2004 in the
historic World Trade Center insurance case. Or the $4 billion trial he won in Delaware for
his client, IBP Inc., in 2001. Or the billion-dollar case he won in 1997 in Nevada for Hilton
Hotels.
Nussbaum has two trials scheduled for 2009. He represents Philip Morris Tobacco Co.
in a lawsuit against the state attorneys general that aims to scale back billions of dollars
in payments the states claim the company owes from the 1998 settlement. And he
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represents longtime New York Chief Judge Judith Kaye and the state judiciary in a
constitutional battle against the New York governor and legislature seeking to increase
judicial pay.
"I had dozens of highly successful lawyers offer to represent us," says Kaye, who retired
January 1. "But I called Bernie for two reasons: He's the best trial lawyer I know, and I
needed someone who would provide me with independent advice and judgment."
Kaye and Nussbaum have a history. They met more than fifty years ago, when the two
were editors of their college newspapers – Kaye at the Barnard Bulletin and Nussbaum
at the Columbia Spectator.
Nussbaum filed the judicial pay lawsuit in 2008, claiming that the executive and
legislative branches of state government have unconstitutionally deprived New York
judges of the pay they need and deserve.
"What we are doing to our judges is horrendous," says Nussbaum, coming out of his
chair, waving his arms. "First-year associates at many New York firms make $160,000,
while New York judges make $136,000.
In 1909, New York paid its judges $17,000 a year, which is equal to $406,000 today. In
1936, we paid judges $25,000, which is $390,000 today. Back then, we paid judges on
par with what partners made.
"Now, we have judges resigning every month because they need to go back to the law
practice in order to pay for their kids to go to college," he says. "The inevitable
consequence is that we diminish the quality of the bench, which diminishes the quality of
justice."
Kaye says Nussbaum's brief summarizing the legal arguments in the case is "the best
legal writing I have ever seen." She describes him as a "fast thinker and an even faster
talker."
He's also capable of overcoming his modesty. As the allotted time for an interview
lapses, Nussbaum tells his assistant to move back his next appointment. "We're
discussing my favorite subject," he says. "Me."
From the Lower East Side to Morningside Drive
Bernard W. Nussbaum was born in 1937. His parents were Polish immigrants who
moved to the Lower East Side of Manhattan. His father was a garment worker who
spoke more Yiddish than English. Nussbaum went to college at Columbia University,
where he decided to become a journalist.
"I had every intent to live a life as a person of disrepute, as a journalist, but my parents
would have none of it," he says.
Harvard Law School was next, followed by a year checking out the world via the
Frederick Sheldon Traveling Fellowship, a prize awarded to top graduates to allow them
to experience foreign travel.
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Mention of the Sheldon Fellowship triggers Nussbaum's recollection of a discussion he
had with U.S. Supreme Court Justice Antonin Scalia at a party a few years ago:
"Do you know who followed you as editor of the Harvard Law Review?" Nussbaum
asked.
"You did," Scalia replied.
"Do you know who followed you with the Sheldon Fellowship?" Nussbaum inquired.
"Why, I think you did, Bernie," Scalia replied.
"So, when are you going to step down from the Supreme Court thing?"
"Oh, no," Scalia responded. "I may be here for a while."
Nussbaum received job offers from several top law firms, but chose to work for the
legendary Robert Morgenthau as a prosecutor in the Manhattan U.S. attorney's office.
From 1962 to 1966, Nussbaum tried dozens of major cases involving a range of matters
– from drugs, financial fraud and embezzlement to political corruption and bribery.
"If you really want to be a trial lawyer, I strongly encourage you to spend a few years as
a prosecutor," he says. "The experience you get from trying major, complex criminal
cases at age twenty-five is something you can never get from a big law firm – or
probably from any law firm."
In 1966, Nussbaum received a phone call from a high school classmate, George Kern,
who was starting a new law firm with six lawyers, including a couple guys named
Wachtell and Lipton.
There was absolutely no thought back then that the firm would emerge as the most
prominent and financially successful corporate legal practice in New York.
Nussbaum was gaining status as a New York litigator, but leading the House
impeachment case against Nixon catapulted him to the ranks of the elite. And his
reputation continued to grow.
Nussbaum says good settlements hinge on the opponent realizing that you are not afraid
to take the case to trial, as well as your own client recognizing the risks that come with a
trial.
For example, in March 1992, Nussbaum was hired by Kaye, Scholer, Fierman, Hays &
Handler after federal charges were brought against the prominent Manhattan law firm for
its role in advising Charles Keating and Lincoln Savings & Loan. The government sought
$275 million in penalties and moved to freeze the firm's assets – an action Nussbaum
contends would have put it out of business.
The $41 million settlement he reached with the Office of Thrift Supervision saved the
firm from having to close its doors. But he says it wasn't easy seeing his client have to
fork over that much money.
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"Any lawyer who tells you he's never lost a case hasn't really tried that many cases," he
says.
In 1993, Nussbaum crossed paths with the Clintons again, when the president asked
him to be his first White House counsel. His tenure as the president's top lawyer saw
many highs and lows.
A Stormy Stint in the Clinton White House
Nussbaum was blamed for the Zoe Baird and Kimba Wood fiascos (two attorney general
candidates who had hired workers with immigration issues), even though he had little to
do with their selection. And he received very little credit for the appointments of Attorney
General Janet Reno and Supreme Court Justice Ruth Bader Ginsburg, though he was
directly involved in picking and vetting both.
The national news media constantly cited "White House sources" criticizing Nussbaum
for being too confrontational. "He's a litigator in a corporate counsel's job," the Washington Post opined.
Nussbaum took the most heat when news broke that he advised President Clinton
against appointing an independent counsel to investigate Whitewater.
"I argued with the president vigorously," recalls Nussbaum. "I told him, 'If you do this,
this is an evil institution that will be investigating you and your family long after
Whitewater is pronounced bogus.' But he did it over my vehement objection."
In March 1994, Clinton told Nussbaum "it might be a good time to leave."
"Do you really think this is about me?" Nussbaum asked.
"Oh, Bernie, if you leave, there will be peace and we will finally get health care passed,"
the president replied.
"If I thought my quitting would help, I would do it," Nussbaum told his boss. "But if you
throw me – your most loyal advocate – overboard, no one will feel obligated to be loyal
to you."
Nussbaum says Clinton seemed to agree. But a couple hours later, White House Chief
of Staff Mack McLarty and his deputy, Harold Ickes, brought a letter to Nussbaum's
office that the president had received from a U.S. senator. The letter told Clinton that
Nussbaum was giving him bad advice, and that Clinton needed to get rid of him.
"The president told you to show me this letter?" Nussbaum asked.
"Yes," McLarty answered.
"Then tell the president I will resign." He did so that night.
Nussbaum remains close to the Clintons. He says Hillary Clinton used him as a
reference when the Obama administration was vetting her for secretary of state.
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"The FBI called me and asked me the most bizarre questions," chuckles Nussbaum:
"Does she have good oral communication skills? Would you hire her again?"
In 1997, Nussbaum found himself in a Nevada state court in a case in which both sides
agreed several billion dollars was at stake. Nussbaum's client, Hilton Hotels, had made a
tender offer for ITT – a bid ITT executives didn't want and took steps to avoid.
Showtime in Vegas
Nussbaum filed a lawsuit seeking to force ITT to proceed with its annual shareholders
meeting and sought an injunction to prevent ITT from formalizing its decision to
recapitalize the company in order to avoid the takeover.
"Your honor, I have always wanted to star in a Vegas show, and I would like to start by
singing a song," Nussbaum told the judge.
"That's fine, Mr. Nussbaum," the judge interrupted. "But I must tell you that, three weeks
ago, another person stood where you are standing and started singing a song. I
sentenced him to fifteen years."
"Judge, I will take my chance," Nussbaum countered. Then, he began: "It's a long, long
time, from May to December, but the days grow short when you reach September."
The song made Nussbaum's point that ITT could not legally continue to postpone its
shareholders meeting. The judge issued the injunction and ITT went on the auction
block.
In 2001, Dakota Dunes, S.D.-based IBP hired Nussbaum after Tyson Foods suddenly
backed out of an agreement to buy IBP for $4.7 billion. That very day, Tyson sued IBP in
an Arkansas court, claiming that IBP had committed fraud as part of its negotiation. IBP's
stock plunged more than $1 billion.
But Nussbaum believed that Springdale, Arkansas-based Tyson was simply trying to
keep the venue in its home state. The next morning, Nussbaum sued in Delaware,
asking for a speedy trial. Tyson countered in Arkansas by seeking an even speedier trial.
Facing a Home-Court Advantage
"I flew down to Arkansas the next day, and I knew it would be tough on Tyson's home
court," he says. "I couldn't find local counsel because every civil litigator had some
connection to Tyson. I finally hired a lawyer who handled traffic cases to act as my local
counsel."
But Nussbaum won the day when the Arkansas judge refused to set a trial date prior to
the trial scheduled in Delaware.
Five weeks after the lawsuit was filed, a two-week bench trial began in Delaware
Chancery Court. Nussbaum argued that there was no fraud, that Tyson simply had
buyer's remorse – and that Tyson should be forced to honor its agreement.
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"At the end of the day, we convinced the judge that we were the good guys and that they
were the bad guys," he says. "Most cases, despite all the technicalities, come down to
that: Did your client act in good faith or bad faith?"
The Delaware court agreed, ordering that Tyson complete the deal.
In 2004, Nussbaum stood before a Manhattan jury to argue the World Trade Center
insurance case – the biggest and most emotional case of his career.
Nussbaum represented Larry Silverstein, who in July 2001 had entered into a $3.2
billion, ninety-nine-year lease agreement with the Port Authority of New York and New
Jersey, allowing him to manage the Twin Towers. Silverstein purchased $3.5 billion of
insurance from two dozen different insurers to cover his property.
Twin Towers Recovery
Weeks after the September 11 attack, the insurance companies informed Silverstein,
who wanted to rebuild at ground zero, that it considered the destruction of the World
Trade Center towers to be only one attack and one incident, thus providing only one,
limited claim. That meant half as much money with which to rebuild.
Leading a massive effort by Wachtell Lipton, Nussbaum sued the insurers, claiming
these were two separate incidents and thus seeking to double the recovery.
"The jury research done by both sides told us that this was an unwinnable case because
people believed, coming into the trial, that they knew everything about the Trade Center
attacks," he says. "And people were evenly split on whether it was one or two attacks.
Jury research showed that neither side would ever be able to get a unanimous verdict
required under New York law."
But Nussbaum kept his case simple: There were two separate towers, two separate
planes, two separate strikes, two separate fires and two separate collapses. The
collapse of the first tower did not cause the collapse of the second.
The insurance companies argued that it was one terrorist attack, and, as a result, only
one occurrence and one insurance claim.
The key moment in the case came when Nussbaum cross-examined William Guernsey,
a claims director for Travelers Insurance who handled the World Trade Center case.
Under intense questioning from Nussbaum, Guernsey admitted that on the very day of
the attacks Travelers won a favorable court decision in California. In that case, a single
arsonist had set fire to four courthouses in Contra Costa County, including three on a
single day. Two of the fires were set 200 yards apart and within six minutes of each
other.
In that case, Nussbaum pointed out that Travelers had argued that the arson attacks
were four separate occurrences because four separate deductibles were triggered – a
position the Ninth U.S. Circuit Court of Appeals at San Francisco adopted in a ruling
issued September 11, 2001.
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Under cross-examination, Guernsey said that he and his superiors joked only a couple
of hours after the World Trade Center towers collapsed, "Gee, I wish we hadn't pressed
that position" in the California case.
"We felt it was ironic that that case would come down on the date that the 9/11
catastrophe occurred," Guernsey testified.
The jury, which included multiple Ph.Ds and a school administrator, deliberated for three
weeks before handing Nussbaum and his client a $2.2 billion victory.
"The other side never recovered from that testimony," he says. "Our victory in this case
was a major contribution in the rebuilding of the World Trade Center site. We are very
proud of our work."
BERNARD W. NUSSBAUM
Born: 1937 in New York City.
Firm: Partner at Wachtell, Lipton, Rosen & Katz in New York City.
Law School: Harvard.
Significant Cases:
1992 – Represented Kaye, Scholer, Fierman, Hays & Handler, which faced $275 million
in fines for its involvement with Lincoln Savings & Loan. The fine was reduced to $41
million.
1997 – Represented Hilton Hotels in a multibillion-dollar hostile takeover of ITT.
2001 – Represented IBP Inc. against fraud charges brought by Tyson Foods involving
$4.7 billion.
2004 – Won $2.2 billion from insurance companies in the World Trade Center insurance
case.
Other Career Highlights – Senior member of staff of the House Judiciary Committee.
White House counsel (1993-94).
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JAMES NEAL
HATING LOSING MORE THAN LOVING WINNING
James Neal has been trying cases for nearly five decades. He's gotten a lot of advice
over the years from judges, lawyers and law professors about what it takes to be
successful in court. But the best counsel came from his college football coach at the
University of Wyoming, where Neal was a running back in 1951. "The coach used to say,
'The team with the fewest mistakes during the game will win,'" says Neal. "It was true in
football and it is true in the courtroom."
The axiom has served him – and his clients – well. Despite scores and scores of trials
under his belt, Neal can count on one hand the number of times a jury has ruled against
his client.
That's not a bad record, considering that Neal, who turns eighty this September, has
handled some of the toughest cases ever. He prosecuted Jimmy Hoffa and the central
figures in the Watergate scandal. He's defended Elvis' doctor, Louisiana Gov. Edwin
Edwards, movie director John Landis and the Ford Motor Co. In each case, colleagues
and judges told Neal that he had no chance of winning.
"But they didn't understand how much I hate losing," he says. "Yeah, I love winning. But
I hate losing even more. Just the thought of losing makes my body shrink from 5'8" to
5'6"."
Neal had no early dreams about being a great trial lawyer. He wasn't much of a student
in college. "I scheduled all my classes in the morning so that when I woke up at noon, I
would already be done for the day," he says.
In law school at Vanderbilt University in Nashville, he decided he wanted to be a tax
lawyer. His dream was to lead the tax division of the U.S. Department of Justice. So
Neal took night classes at Georgetown University Law Center to get an advanced
degree in tax law.
In 1961, he got his big chance. Attorney General Robert F. Kennedy was looking for a
handful of bright young lawyers. Their mutual friend, newspaper editor John
Seigenthaler, set up a meeting.
A week later, Kennedy called Neal. "Bobby told me that I should do what he needed me
to do instead of what I wanted to do," says Neal, who was asked to lead the
prosecutions against corrupt labor union leaders. "I told him I didn't have any trial
experience. He told me, 'That's OK because I don't have any experience being attorney
general either.'"
James vs. Jimmy
Of all the famous cases he's handled, Neal says he's asked to speak most often about
his prosecution of Teamsters President Jimmy Hoffa.
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"Hoffa was the toughest old bird I ever met," he says. "Every morning, I would sit down
at the prosecution table, look over at the defense, and Hoffa would shoot me a secret
finger message under the table.
"When the judge would recess for lunch, Hoffa would walk over to me, stick his chest out
and tell me that we should go down to the gym, put on the gloves, so that we could settle
this like men," Neal says.
Then there was the morning of December 5, 1962. The trial against Hoffa – on charges
that he used a trucking company to launder union money – was entering its second
month in federal court in Nashville. The eighth-floor courtroom was nearly empty when
Neal noticed a young man wearing a long, tan trench coat pushing his way past the
waist-high swinging doors of the bar.
"All of a sudden, this man pulls out from under his coat the biggest gun I had ever seen
in my life," Neal says. "He first pointed the gun at me and then at Hoffa, and he started
shooting.
The man, Warren Swanson, was a twenty-eight-year-old former mental patient who later
told Neal that he had been driving across the country when God told him that he needed
to kill Jimmy Hoffa.
"When Swanson started shooting, I hit the floor and ducked for cover, as did everyone
else," says Neal.
"Everyone except Hoffa. Not only did Hoffa not seek cover; Hoffa started charging
toward Swanson and punched Swanson right in the face."
"Hoffa was even a tough old bird on the witness stand," Neal says. "He had the same
answer to every question I asked: 'To the best of my recollection, I do not recollect.'"
While that trial against Hoffa eventually ended in a mistrial, Neal got his revenge two
years later when he convinced a jury that Hoffa was guilty of attempting to bribe jurors in
his previous trials.
Upward Spiral
In 1964, President Lyndon B. Johnson appointed Neal as U.S. attorney in Nashville.
Then, in 1966, he started his own firm, which eventually became Neal & Harwell – a
partnership that has lasted for thirty-eight years. The firm focuses on high-profile criminal
cases and civil litigation.
In 1972, Neal was hired by Bobby Wayne Wallace in the nation's first-ever air piracy
case to go to trial. The FBI charged that Wallace and his good friend George Gibbs
kidnapped Gibbs' estranged wife, who happened to be Miss Tennessee. The two former
football players at Middle Tennessee State University then hijacked a private aircraft to
fly to Florida.
The plane landed in Jacksonville for refueling. After the pilot triggered the notification to
authorities that he had been hijacked, the FBI quickly surrounded the plane. When the
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FBI refused Gibbs' request for fuel and a bottle of champagne, Gibbs killed the pilot, his
wife and then himself.
Neal argued that Wallace had been afraid of Gibbs, his former friend and teammate, and
that Gibbs' reaction to the FBI showed he had good reason.
"I told prosecutors at the beginning that my client would plead guilty to intimidating the
pilot and accept ten years in prison, but they turned me down," says Neal. "After closing
arguments, the federal judge called me into his chambers to tell me I had done a great
job, but too bad I was going to lose."
A few minutes later, there was a knock at the judge's door. The jury acquitted Wallace
on all counts.
Tricky Business
The next year, 1973, Neal learned his prosecution days were not quite over. Watergate
special prosecutor Archibald Cox asked Neal to be chief trial counsel in the cases
against John Ehrlichman, H.R. Haldeman and John Mitchell.
"It was by far the most important case in which I have ever been involved," he says. "I
was basically trying to prove that these defendants were involved in a conspiracy with
the president of the United States. It gets no bigger than that."
Neal says the keys to the case were the audiotapes of the men in the Oval Office with
President Richard Nixon. Every time the defendants proclaimed their innocence, Neal
played the tapes of their voices plotting inside the White House. When the defendants
claimed that the money was really for charity, Neal pointed out that they wore gloves
while handling the questionable cash.
On Jan. 1, 1975, the trio was found guilty of charges stemming from the break-in and
subsequent cover-up.
"It is the only time that I have been sad after winning a case," Neal says. "But it was the
greatest example that our criminal justice system, thanks to an independent judiciary,
works – even when dealing with those in the highest positions of government."
Haldeman's lawyer, John Wilson, in an interview with Time magazine, described Neal as
"the greatest lawyer I ever saw in a courtroom."
As important and exhilarating as Watergate was, Neal always found his way back home
to Tennessee. And in 1980, he found himself in the lead role in the biggest trial in
Tennessee history.
For the Love of Elvis
Dr. George Nichopoulos was charged by Memphis authorities with overprescribing drugs
to Elvis Presley, Jerry Lee Lewis and nine others. While Dr. Nick, as he was known, was
not charged with killing Elvis, ABC News reported that it was those prescription drugs
that caused the singer's death in 1977.
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Neal's own investigation found that Presley was getting illegal prescription drugs from
several others when he couldn't get them from Dr. Nick. He also learned that the doctor
was switching many of Presley's prescription meds with placebos in an effort to wean
him from the addictive drugs.
"I discovered that if it were not for Dr. Nichopoulos, Elvis would have been dead years
earlier," says Neal. "The evidence showed that [Dr. Nick] was actually slowly reducing
the amount of medicines he was giving to Elvis. He was the only person who truly cared
for Elvis – a true Good Samaritan."
While Neal had found his defense argument, he also recognized that the people of
Memphis adored Presley. He wasn't sure his client could get a fair trial due to juror
prejudice. But to prove that the jury pool had been tainted, Neal hired a jury consultant to
survey local citizens.
The results proved shocking. Two-thirds of Memphis residents blamed Presley himself
for the drug overdose, while only one in five thought his doctor was responsible. Even
more interesting to Neal was that only 12 percent of those polled believed that Presley's
physician should have refused to treat him and should have turned the singer in to
police. However, 70 percent believed that the doctor should have continued treating
Presley in an effort to reduce his drug dependence.
Needless to say, Neal decided to keep the trial in Memphis.
In the Dr. Nick case, as in all of his court victories, Neal waited to pounce on any
prosecution mistake. The opportunity presented itself with the state's key expert medical
witness, who was called to criticize Nichopoulos' method of treatment. On direct
examination by prosecutors, the doctor testified that he had written many scholarly
articles on this exact subject.
"We knew this guy was going to testify, so we checked him out at the Vanderbilt medical
school library and could not find a single article he had published in any medical journal,"
says Neal.
On cross-examination, Neal asked the state's expert to name the journals in which he
claimed to be published. When the witness couldn't, Neal began naming prominent
medical journals, forcing the doctor to answer no to each. He even asked the state's
witness to make phone calls during a court break to get the names of the journals. But
even after the break, the expert testified he couldn't remember the names.
"His entire testimony was discredited by that mistake," Neal says.
The state's expert never recovered and neither did the prosecution's case. The fiveweek trial ended on November 5, 1981, when the jury composed of six men and six
women took only three hours to find Nichopoulos not guilty on all counts.
Neal admits he's slowing down a bit. He wants to refocus his practice on helping the
younger lawyers at his firm to become better trial lawyers. Asked why he thinks he's had
the privilege of trying so many high-profile and fascinating cases, Neal pauses, and then
offers the briefest of explanations:
"Just damn luck. That's all it has been."
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JAMES NEAL
Born: 1929 in Oak Grove, Tenn.
Firm: Neal & Harwell.
Law Schools: Vanderbilt, Georgetown.
Significant Cases:
1974 – Neal served as lead trial attorney in the Watergate prosecutions of Nixon White
House aides John Ehrlichman and H.R. Haldeman.
1981 – Successfully defended Dr. George Nichopoulos on charges that he
overprescribed medications to Elvis Presley, Jerry Lee Lewis and other patients.
1985 – Represented Louisiana Gov. Edwin Edwards in his first trial for racketeering. The
jury voted 11-1 to acquit. On retrial, Edwards was acquitted.
1987 – Neal successfully defended movie director John Landis, charged with involuntary
manslaughter and child endangerment in the death of actor Vic Morrow and two child
actors during the filming of Twilight Zone: The Movie.
Other Career Highlights – As assistant to Attorney General Robert F. Kennedy, Neal
successfully prosecuted Jimmy Hoffa, president of the Teamsters Union, in 1964 for
attempting to bribe a grand juror. Hoffa received a fifteen-year sentence. Neal has also
represented former Vice President Al Gore in personal matters.
15
16
JOE JAMAIL
KEEPING IT SIMPLE
Joe Jamail settled into his chair at home to map out his closing argument for the next
morning. The case was a highly complicated business dispute between two of the
largest corporations in the world – a multibillion-dollar merger gone awry. Just as Jamail
picked up his pen, he heard a car horn blowing outside.
Jamail's buddies – singer Willie Nelson and former University of Texas football coach
Darrell Royal – were in a white limo, begging him to go out for a drink or two.
"I tried telling them that this was the biggest damn case of my life – hell, of anybody's life
– and that I needed to prepare," says Jamail. "But they weren't having any part of it.
They kept me up all fucking night drinking. I could barely see straight the next morning."
Jamail did just fine. He kept his closing argument simple. The case was about people
keeping their word and being honest – or, in the case of the defendants, about not
keeping their word.
The result: On November 20, 1985, a Texas jury returned a $10.53 billion verdict for
Jamail's client, Pennzoil Co., against Texaco Inc. It remains the largest verdict upheld on
appeal in legal history. The case later settled for $3.3 billion. Jamail's personal take
topped $400 million, according to reports.
"We celebrated that night at my house by eating hamburgers and drinking beer," he
says. "I've still got the $3 billion deposit slip on my wall."
Eighty-three and Counting
The son of a grocer, Joseph D. Jamail Jr. is one of the most successful lawyers in
history. He has tried more than 500 jury and bench trials, which resulted in more than
$13 billion in judgments for his clients – not too shabby for a guy who failed torts in law
school. Forbes magazine estimates Jamail is worth $1.5 billion, making him the 321strichest person in the U.S.
Despite having more money than he ever dreamed of and being eighty-three years old,
Jamail says he plans to continue trying cases for another decade or so, and then slow
down a bit. He's been hired by three Fortune 200 companies in the past six months that
are involved in bet-the-farm lawsuits.
"The corporate boardroom mentality and structure encourages companies and their
executives to fuck each other," he says. "So, there's always going to be a need for good
lawyers."
Jamail pauses to clarify. "By good lawyers, I mean good trial lawyers," he says. "They've
invented this new term, litigator. What the fuck is a litigator? I'm a trial lawyer. I try cases.
There are some lawyers who do nothing but this mediation bullshit. Do you know what
the root of mediation is? Mediocrity!"
17
The move to replace jury trials with mediation and arbitration, he says, is actually an
effort by elitists in our society to control how disputes are decided.
"I don't think the trial practice is dead," says Jamail. "But it is very ill. There are some
days you could throw a hand grenade down the hall of the Harris County Courthouse
and not hit anybody."
Jamail says young lawyers at big firms today don't have the opportunity to cut their teeth
on small cases, which would help develop their trial techniques.
"By not trying the small cases, the lawyers don't get the courtroom experience," he says.
"So when the huge, bet-the-company cases come along, there are only a handful of trial
lawyers who can handle it. That's why these big corporations still call us old-timers every
day."
A $100 Wager
In a television debate over tort reform with a physician, the medical doctor was slamming
lawyers as a drain on society. "I would like to remind the doctor that while his
professional ancestors were putting leeches on George Washington to bleed him, my
ancestors were writing the Declaration of Independence and the United States
Constitution," Jamail responded.
"I never heard any more shit from him."
Jamail didn't always want to be a lawyer. In fact, he initially enrolled at the University of
Texas as a pre-med student. But the first semester in 1942 didn't go so well. He failed to
show up for his final exams and received five Fs. So he forged his father's name on
enlistment documents and joined the Marines.
Jamail returned home after the war and received his liberal arts degree from UT. Then
he decided to go to law school, sort of.
"I was so damn naive that I didn't know that there was a test you had to take before you
got into law school, so I just started showing up for classes without even enrolling," he
says.
No one at the UT School of Law noticed Jamail wasn't officially enrolled either, until the
time came three years later for the law dean to sign his diploma.
On a $100 bet from a classmate, he took the bar exam in 1952, a year before he
graduated. The passing mark was 75. Jamail scored 76.
"Shit, I'm overeducated," he told his friends. "We used the $100 to buy a lot of beer and
got drunk by the lake."
Jamail remembers his first five trials. "Mainly because I lost all of them," he says. "They
were what we call dogs."
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His first win actually came while he was still in law school. A waitress at one of his
favorite bars had cut her hand trying to open a bottle of beer. So Jamail and his
classmates sued the beer's bottling company.
"None of us knew what the hell we were doing," says Jamail. "The thing was, the other
side and the judge also knew we didn't know what we were doing. Fortunately, the beer
company offered us $750 to settle the case. We took it and ended up spending it all at
the bar that night drinking."
Bucking Popular Opinion
The case that brought Jamail into prominence was a case no other lawyer in Texas
would touch. The facts were bad. The plaintiff was unsympathetic. And public opinion
was not in his favor.
Jamail's client had had a few shots of bourbon before jumping in his car to get some
fried chicken for dinner. His car jumped the curb of the cement island in the middle of the
street, knocked down a street sign and then struck a tree. The driver's blood-alcohol
level at the hospital tested at .22, and he died from the injuries a few days later. When
the man's widow asked the city to pay the funeral cost, city officials laughed at her.
"I went to the scene of the accident and I couldn't believe my eyes," Jamail says. "There
was a tree growing in the middle of the damn street. A couple of them, in fact. I thought,
what the hell is a tree doing growing in the middle of the street. A street sign, I could
understand, but not a damn tree."
Jamail sued the city of Houston claiming that the trees were a public nuisance. And he
won at trial. The city paid for the man's funeral, plus $6,000 for pain and suffering. Plus
the city had to cut down the trees. "I got calls for the next two years from these treehuggers cursing me for having the trees cut down," he says. Jamail garnered headlines
again in 1976 when he was representing Major League Baseball player Bob Aspromonte. The former Houston Astros infielder was jump-starting his car battery when the
jumper cable he bought at Sears, Roebuck & Co. flew off the car battery and struck his
eye, causing him intense pain and blindness in that eye. At trial, the jury awarded
Aspromonte $875,000. When defense counsel for Sears missed the deadline for filing an
appeal, Jamail obtained a court order allowing him to collect the judgment.
"I went to the largest Sears store in Houston, walked into the manager's office and told
him that I wanted the keys to the store, and I wanted him to get on the loudspeaker to
order all customers out because we now owned that store," Jamail says. "The manager
asked me what was going to happen, and I said that their competitor, Montgomery
Ward, was about to have the biggest damn Memorial Day sale in history."
Within an hour, according to Jamail, the law firm representing Sears showed up with a
check for the entire amount. The newspapers and radio stations announced that Jamail
had shut down Sears, which led to him getting a lot of angry phone calls. He remembers
one in particular.
"Joe, you son of a bitch, don't you know it is un-American to close down Sears?" The
caller was Willie Nelson.
19
Rolling with It
In the early 1980s, Jamail represented his courtroom idol, Houston criminal defense
attorney Percy Foreman, whose neck was injured when his car was rear-ended by a
commercial truck. On direct examination, Foreman testified that he had not experienced
any neck problems before the accident, and that he was entitled to $75,000 for lost
income due to the injury.
But on cross-examination, the defense revealed that Foreman had been hospitalized
nine times for neck problems prior to this accident.
"The jury looked at me, expecting me to give them an answer," says Jamail. "So I told
them that Percy had been a great lawyer throughout his life, but that he was now just an
old man and was growing senile."
At that moment, Foreman jumped up and yelled out across the courtroom, "You
goddamned son of a bitch!"
"See what I mean," Jamail immediately told jurors. "He doesn't even know where he is
right now."
The jury awarded Foreman the sum of $75,004. Jamail says he never figured out why
the extra $4.
"Today's law schools teach students how not to get emotionally involved in their cases,"
he says. "That's bullshit. If you are not emotionally involved, your client is not getting
your best effort."
While Jamail's tongue has swayed many juries and judges, it has also gotten him into
trouble. In November 1993, Jamail was defending his friend and client, Pennzoil Corp.
Chairman J. Hugh Liedtke, in a lawsuit regarding the takeover of Paramount
Communications Inc., of which Liedtke was an outside director. During the deposition,
Jamail called a lawyer representing QVC Network Inc. an "asshole" and said his
deposition skills could "gag a maggot off a meat wagon."
The Delaware Supreme Court reprimanded Jamail, calling his conduct "an astonishing
lack of professionalism and civility." Jamail told Texas Lawyer reporter Brenda Sapino
Jeffreys on the day the court issued its opinion, "I'd rather have a nose on my ass than
go back to Delaware for any reason."
20
JOSEPH D. JAMAIL JR.
Born: 1925 in Houston.
Firm: Jamail & Kolius in Houston.
Law School: University of Texas.
Significant Cases:
1962 – Won a $580,000 judgment for Olin Robertson, who had both hands and a foot
burned off due to a faulty electrical box. This was the first tort-law verdict in the United
States to surpass $500,000.
1985 – Won a $10.5 billion jury verdict for Pennzoil in a suit against Texaco for
interfering with a merger with Getty Oil.
1988 – Won a $16.6 million verdict for Sonya Webster, who was sixteen when she was
rendered quadriplegic after the crash of a Honda all-terrain vehicle. It was the first-ever
verdict against the ATV industry.
1993 – Represented Northwest Airlines in its losing antitrust claims against American
Airlines.
Other Career Highlights – A swimming center, a law school pavilion and the football
field at the University of Texas in Austin are named for Jamail, who is a hefty contributor.
21
22
FRED BARTLIT
JOHN WAYNE IN A PINSTRIPE SUIT
Fred Bartlit was told it was a case he could not win – that no lawyer could win.
In 1996, jet engine supplier Chromalloy sued Pratt & Whitney, a unit of United
Technologies Corp., claiming the defendant illegally monopolized the jet engine parts
market.
The smoking-gun evidence in the sixteen-week state court trial in San Antonio was an
internal, C-level Pratt & Whitney memo stating that its goal was to "destroy the
opposition" and "put them out of business."
The memo was accompanied by a drawing of a Chromalloy factory exploding, which
was followed by the words "and we will."
When it became clear that the case was going to trial, Pratt & Whitney hired Bartlit.
"Let's put it this way," Bartlit says. "As facts go in antitrust cases, this one didn't look
good."
Bartlit told jurors that the memo was nothing more than his client trying to be enthusiastic
about the fight ahead, the same way a football team tries to build excitement in the
locker room before taking the field.
"I told the jury that the memo was just a bit of bravado and that's it," Bartlit says. "I knew
I had to keep my argument simple, but I wasn't sure it was working."
Until …
The plaintiff's star witness was a renowned antitrust expert who had been in court for
much of the trial. Under cross-examination, Bartlit asked the expert how much he was
being paid by the plaintiff.
The expert responded: $550 a day. Realizing that Texas jurors were paid a mere $6 a
day – the lowest juror pay in the nation at the time – Bartlit decided to make some hay
out of it.
"So, when the jurors and I see you sipping coffee during breaks in the hallway, are you
getting paid $550 then?"
"Yes, I am," the witness responded.
"Well, when we see you sitting in the back of the courtroom reading the newspaper,
surely you aren't really being paid then, are you?
"Why, yes, I am," the expert replied. "But I am losing money on this trial because I've
raised my rate to $600 a day. So every day that I am here, I am actually losing $50 a
day."
23
That evening, after court had ended, the jurors told the judge that they had voted to
donate their $6 a day to the expert because they felt sorry for him.
"At that point, I figured I was in pretty good shape," Bartlit says.
The four-month trial ended with the jury finding for the defendant on all counts.
High-Stakes Leader Now seventy-six, Bartlit has tried scores and scores of bench and jury trials. His sixteenpage online resumé lists more than fifty major trials since 1970 in which the futures of
General Motors, United Technologies, Bayer, Amoco and DuPont were at stake. Oh
yeah, there's that one little Florida case from November 2000 in which the presidency of
the United States was in question.
"It is amazing how many lawyers have never tried a case," he says. "Litigators think
about lawsuits. Trial lawyers try them. And I fear that we are witnessing a great decline
in the number of trial lawyers who have had these great courtroom experiences to tell
about."
There's one reason for this, he says: "Very few cases actually go to trial today. It is a
disturbing and unhealthy trend."
Bartlit remembers the day he decided to become a trial lawyer. He was a first-year
associate at Kirkland & Ellis in Chicago in 1963. He was being paid $1,000 less per year
than his fellow first-years because he went to "the rinky-dink University of Illinois," while
the others had law degrees from Harvard, Yale and the University of Chicago.
He asked his father, a small-town Illinois lawyer, for advice on how he could stand out
and succeed amid such overachievers. Simple, his father responded: Find something
you can do that no one else wants to do. Bartlit knew immediately what that would
be: trying cases.
"Sure, all lawyers say they wanted to try cases," he says. "But I realized that, when push
came to shove, not one of them really wanted to actually go to court and try cases to a
jury. I think it's because a lot of lawyers probably got the shit beat out of them in high
school, so they have this fear of losing. They do whatever it takes to avoid going to trial."
Bartlit tried his first case as lead counsel in the mid-1960s. Kirkland & Ellis client Amoco
faced an antitrust lawsuit in Salt Lake City filed by dozens of service station dealers who
claimed Amoco was doing things improperly to control prices. In 2009 dollars, he says,
more than $100 million was at stake.
Even though Bartlit wasn't a partner, he was determined from the start of the case to
position himself as the lawyer to try it. He took every deposition. He reviewed every
document. He attended every court hearing. When the case didn't settle, it was clear to
the client and K&E partners that Bartlit knew everything about this case and should lead
the trial team.
"Besides, no one else wanted to try it," he says.
24
Bartlit started his opening statement by telling jurors that the service station owners were
nice people.
"I see them all here in the courtroom. There's Mr. and Mrs. Thornton. Will you please
stand? Good to see you here," Bartlit said, before turning toward the jurors. "Now, Mr.
and Mrs. Thornton are very good people, and I hate to say this, but Mr. Thornton hasn't
told the truth.
"I feel bad that I have to be the person to show you this, but for some reason – maybe
because their lawyers have told them they have to do this, I don't know – but they aren't
telling you the truth," he said.
Bartlit repeated this with each service station owner in the courtroom. Then, over the
next month, he used cross-examination and the plaintiffs' own documents to show jurors
how the plaintiffs' case was false.
When closing arguments came, Bartlit started by pointing out that Mr. and Mrs. Thornton
and the other owners were now absent from the courtroom.
"Where are they? Why aren't they here today?" he asked, watching the jurors scan the
courtroom looking for the absent plaintiffs. "I wonder if they didn't come because they
didn't want to face you and because they knew you caught them in their lies. I guess
they couldn't hold their heads up."
The jury found in Amoco's favor on all counts.
Troop Tactics
Bartlit wakes every morning by four – even earlier when he's in trial.
He exercises for two hours and plays basketball regularly. He says the physical energy it
takes to be a successful trial lawyer is underestimated.
"Most trials are not sprints, but are marathons," says Bartlit, who spent eight years in the
U.S. Army as a Ranger after graduating from West Point and before law school.
"I've tried several cases that lasted three or four months. So you must remain fit and
have the strength and energy to handle it."
One of Bartlit's biggest wins came in 1974 when he represented General Motors in a
criminal antitrust case. GM and Ford had been indicted on charges that the two
automakers had conspired to fix prices and maintain a monopoly in the sale of large
fleets of cars sold to governmental agencies and large private customers.
If found guilty, GM faced a modest maximum of $100,000 in criminal fines. However, a
conviction would have banned the world's largest car manufacturer from doing business
with the government and made it much easier for other criminal prosecutions and private
civil lawsuits to move forward.
25
"It was one of the most incredible trials of its time," he says. Henry Ford and John
DeLorean were witnesses. "We estimated total damages to General Motors could have
been in the $4 billion range, which is about $60 billion today."
Searching for Understanding
In putting together his defense, Bartlit sifted through every single document in the case
and every set of minutes from every GM board meeting.
"I identified every time the GM board and its executives displayed uncertainty," he says.
"Because if there's uncertainty, it shows there's no conspiracy."
Then he found the document that would be the foundation of his defense. It came in the
form of minutes from a key board of directors meeting at which fleet sales were
discussed. The minutes showed the General Motors board and executives pondering a
single question over and over: "What will Ford do?"
The four-month trial ended with the jury acquitting GM of all charges.
"Jurors are like us: They hate not understanding things," says Bartlit. "They appreciate
and trust the people – be it lawyers or witnesses – who help them better understand the
facts and the meaning of the case."
He points to a 1980 trial in which he defended Dun & Bradstreet against an antitrust
lawsuit filed by National Business Lists. NBL accused D&B of using its credit ratings unit
to control and monopolize the data it needed to develop business lists.
NBL sought $7.5 million in damages and demanded that D&B be required to divest its
lucrative mailing list business.
In preparing for trial, Bartlit learned that for twenty-five years NBL had been developing
its lists from information taken from D&B's credit reference books in violation of the
copyright infringement agreement.
In her 1988 book, The Trial Lawyers, Emily Couric quotes Bartlit's reaction: "Do you
mean to tell me these guys ran their business on information they stole from us?"
National Business Lists "had been stealing from us for years – and now they're
complaining that they can't steal more."
Bartlit had found his defense, and it was a solid offense. Not only did the jury decide
against NBL's claims; it found the plaintiff infringed Dun & Bradstreet's copyrights and
awarded $3.85 million to D&B.
Riding to the Rescue
Bartlit says he's learned a key to success in court is being one's self or at least not trying
to be someone else.
"I tell our young lawyers the one thing we know jurors do is evaluate everyone in court,
and they don't trust phonies," he says. "So always be yourself. If you can't figure out how
you should act, I always say you should act like John Wayne. John Wayne wouldn't
26
whine to the judge with objections. He wouldn't be arrogant. John Wayne was strong but
quiet. He was a leader who focused on getting the job done."
Bartlit likes playing Wayne, riding to the rescue of his big corporate clients who have
received what he calls "the letter." The letter, he says, is written by a company's main
outside counsel who litigated a matter for years, only to realize it will not be dismissed
and is headed for trial. So the letter recommends cutting a deal.
"I get so many calls from corporate executives and general counsel telling me that their
outside lawyers want them to settle just to avoid trial," he says. "But these companies
don't want to settle. So they call me. I love getting that call."
Bartlit was at his daughter's wedding when he received a call from the office of Houston
lawyer James Baker, the former secretary of state. Baker needed him to fly immediately
to Tallahassee, Fla., to represent George W. Bush in the election dispute against Al
Gore.
Bartlit waited until the wedding party was well under way, and then he slipped off to
catch a private jet.
"I told my partner that us representing Bush in this was a no-win situation," he says. "If
we lost, we would be called incompetent. If we won, no one would realize it because
they don't know about trying cases."
Bartlit says the jury box was filled with television cameras. There were more reporters
from more places than he thought possible. Bartlit says people think he represented
Bush because of his politics.
"No one from the Bush camp ever asked me if I was a Republican," he says. "I hadn't
even contributed to Bush's campaign. In fact, I gave money to Joe Lieberman because I
thought he was a smart and reasonable guy."
"But I wasn't in this case because I thought the country would die if my client lost; I just
thought it would be a great case to try," he says.
Then Bartlit pauses, as if he is thinking about whether he truly wants to say what's on his
mind.
Then, he just says it.
"You know, if I were to rate my most important cases, I wouldn't even put Bush v. Gore
in the top ten."
27
FRED H. BARTLIT JR.
Born: 1932 in Harvey, Ill.
Firm: Bartlit Beck Herman Palenchar & Scott in Chicago and Denver.
Law School: University of Illinois.
Significant Cases:
1976 – Successfully defended General Motors in a $2 billion price-fixing antitrust case in
Connecticut.
1981 – Defended chemical giant Monsanto in a lawsuit brought by SuperTurf claiming
treble damages for price fixing on artificial turf products. Monsanto won at trial and on
appeal.
1996 – Represented United Technologies on claims brought by Chromalloy that UT's
Pratt & Whitney unit monopolized the sale of jet engine parts. He won.
2002 – Was victorious in appeals of two lawsuits defending Bayer's patent on the
antibiotic drug Cipro. Also won trials of both in lower courts.
2004 – Successfully defended investment fund Forstmann Little & Co. from $1 billion in
claims by the state of Connecticut in state court.
Other Career Highlights – Trial counsel (with partner Phil Beck) to George W. Bush
against Al Gore in 2000 Florida state court election litigation.
28
BOBBY LEE COOK
KICKIN' ASSES THAT NEEDED KICKIN'
The year was 1949. Bobby Lee Cook was handling one of his first-ever murder trials,
defending a man who had killed another man who had called him a "goddamn son of a
bitch."
During opening statements, the prosecutor told the Dade County, Georgia, jurors that
while calling someone this was a bad thing, it didn't give the defendant the right to kill the
man.
Slowly, Cook rose from his chair at the defense table to approach the jury. "I have a
question for you," he asked the dozen in the box. "What would you have done if
someone had called you a goddamn son of a bitch?"
At that moment, an older mountain man with a long beard sitting at the back of the jury
box whispered just loud enough for the other jurors to hear: "Why, I would have killed the
son of a bitch."
"I had an entire opening statement planned," Cook says. "But I just looked at the man,
looked at the jurors, nodded, walked back to my chair and sat down."
The next day, the jury acquitted his client.
During the past six decades, Cook has tried thousands of cases, including more than
300 murder trials, in more than forty states and several countries. He's represented
moonshiners and money launderers, bootleggers and bank fraud schemers. The
Rockefellers and Carnegies have been his clients. The television show Matlock was
reportedly based on Cook's practice. And his defense of Savannah socialite Jim Williams
helped bring to life John Berendt's true-crime classic Midnight in the Garden of Good
and Evil.
At age eighty-two, Cook still lives in Summerville, Georgia, which sits a little closer to
Chattanooga, Tennessee, than to Atlanta. He's still trying cases – he represents three
murder defendants in separate cases set to go to trial this year. He remains one of the
most sought-after criminal defense lawyers in the South.
"I'm having the best and most productive year of my career," Cook says. "I enjoy waking
up every morning and kicking somebody in the ass that needs it."
When that feeling is gone, he says, that's the day he'll retire.
From Creditors to Clients
"The law practice has changed so much," says Cook. "The law is viewed as a business
these days – and not as a noble profession. Law firms are operated as banks. I know
partners at big law firms who have never tried a case to a jury. I didn't become a lawyer
to get rich, but I'm doing OK."
29
Indeed he is. Cook's reported net income is about $1 million a year. He owns houses on
the side of historic Lookout Mountain and on beautiful Sea Island. His driver transports
him back and forth in his Rolls-Royce. But it hasn't always been this way.
"For many early years, I got more calls from creditors than I did clients," he says. "And
I've represented some clients that most lawyers didn't want to defend, and I made some
enemies in the process."
In 1951, Cook represented a man who had been arrested for moonshining by a Georgia
sheriff who didn't appreciate Cook's belief that the Fourth Amendment's prohibition on
illegal searches and seizures should apply in Georgia. When Cook showed up at the jail
to post bail for his client, the sheriff refused to accept the money and threatened to kill
the defense lawyer if he made any further attempts to have his client freed.
"You're not going to shoot me," Cook told the sheriff. "There are hundreds of Cooks who
live in this county and they will hunt you down like a damn rabbit, and they will kill you."
Cook says he put the money on the table, grabbed the keys to the jail cell and started to
walk his client out the door, when he heard the sheriff cock his pistol.
"Boom! The gun fires and the bullet shoots into the doorway just above my head," says
Cook. "I got my client the hell out of there."
A month later, at his client's trial, Cook got his revenge. He had the sheriff on crossexamination and asked why he hadn't also arrested his client's neighbors for
moonshining. When the sheriff didn't answer, Cook responded it was because the
neighbors had been making secret payments to the sheriff while his client had not.
Angered, the sheriff threw a Coke bottle at Cook, barely missing him.
"I walked up to the witness stand, grabbed the sheriff by the collar, pulled him down onto
the floor and started whipping up on him," says Cook. "The judge was on the bench and
the jury was in the box watching me whip up on him for several minutes. They all knew
the sheriff was a tyrant. After a few minutes, the judge cleared his throat and said, 'Mr.
Cook, I think he's had enough.'"
"I pushed the sheriff back into the witness chair and finished my cross-examination,"
says Cook. "Damn jury was out for only a few minutes before they came back with a not
guilty verdict on all counts."
Cook's fame grew in 1975 when he represented on appeal seven men accused of killing
Atlanta pathologists Drs. Warren and Rosina Matthews. The key witness in the case –
"Hell, the only witness," says Cook – was Deborah Kidd, who testified that she had been
with the defendants and witnessed them brutally killing the victims. Prosecutors had
given her total immunity in return for her testimony.
But years after Georgia courts had refused to relook at the case, Cook got one more
chance to question Kidd under oath in a federal habeas proceeding.
At first, Kidd stuck to the same story she had told at trial. But Cook showed Kidd a
personal check she had written in South Carolina the very day she claimed she was
supposedly with the defendants committing murder.
30
When Kidd claimed the check was a forgery, Cook presented three handwriting experts
who confirmed the signature was hers. When Kidd said she'd backdated the checks,
Cook presented witnesses who said Kidd gave them the checks in South Carolina the
day she claimed she was in Georgia.
Cook also presented Kidd with an affidavit she'd signed in a South Carolina divorce case
at the exact time she claimed she was at the murder scene. Finally, Cook presented
evidence that Kidd and the lead detective had been sleeping together during the trial.
Overwhelmed, Kidd broke down on the witness stand and confessed to Cook and the
federal judge that she had made up the entire story, and that she and the police had
framed the seven defendants.
The convictions were thrown out and prosecutors later admitted that the seven were
innocent.
"If you can railroad a bad man to prison," says Cook, "you can railroad a good man.
That's why we should always vigorously fight for the constitutional rights of even those
who are most despised in our communities."
Against the Grain
Cook has a history of representing unpopular clients. For example, he was the only
lawyer in Georgia who represented unions during the 1950s, when organized labor was
considered communist. And his defense of high-profile criminals left many of his
neighbors scratching their heads.
In the mid-1980s, he was having breakfast at a Summerville diner when a longtime
friend approached his table to ask how he could represent a local man who was accused
of killing four people.
"I explained the Sixth Amendment, right to counsel, innocent until proven guilty, right to
confront your accuser," says Cook. The friend gave Cook a puzzled look. A few days
later, another longtime friend approached Cook, also seeking an explanation of how he
could defend such a horrible person.
"I could tell you that it is the right to a fair trial, due process, effective assistance of
counsel, but there's more to it than just that," Cook told his friend. "The guy paid me
$150,000 in cash up front."
"Well goddamn, Bobby Lee," the man responded. "That's great. We hope you win."
Cook, who has won about 80 percent of his murder trials, says there are two things a
lawyer must prove to a jury in order to win a murder case: That the victim was a bad
person who deserved to be killed, and that your client was just the man for the job.
"If you prove those two things, nine times out of ten, your client walks," he says.
Not that Cook wins all of his cases. In the 1970s, he represented a young man charged
with arson in the defendant's small north Georgia town. Cook asked the panel members
31
during jury selection whether any of them knew his client. Several jurors raised a hand.
Cook randomly pointed to one of the potential jurors and asked what he knew.
"Everyone knows Tommy's always been a little firebug," the juror responded.
"I knew then it was time to plead this case," Cook says.
And then there are those cases when you have to adjust your argument based on the
makeup of your jury. Cook points to a death penalty case he was defending in rural
Georgia in the early 1970s.
Seeking leniency from the jury during closing arguments, Cook quoted Shakespeare:
"The quality of mercy is not strained. It droppeth as the gentle rain from heaven, upon
the place beneath. It is twice blessed: It blesseth him that gives and him that takes."
Cook started to attribute his quote to Shakespeare when he caught himself.
"I realized that I was in Dade County, Georgia," Cook says. "The people of Dade County
are good but simple people. They don't know who the hell William Shakespeare is. They
may think he's some guy named Bill from Tennessee, or worse from Alabama, and
sentence my client to death."
So Cook cleared his throat and told jurors, "And that's from Song of Solomon in the
Bible." The jurors all nodded in reverence.
That night, Cook was awakened by a phone call. It was the prosecutor in the case who
said he had just finished reading through the Song of Solomon for the fourth time.
"What you told the jury ain't in there, you son of a bitch," the district attorney said.
"What version of the Bible are you reading?" Cook asked.
"The King James Version," the prosecutor responded.
"I never said it was the KJV," Cook replied and then hung up.
"The next day, the jury spared my client's life," he says.
A Deft Touch with the Jury
Cook frequently uses people's basic mistrust of government and power as a foundation
for his case. In 1979, the Rockefellers and Carnegies hired Cook after the federal
government seized their coastal Georgia property as part of a land condemnation
procedure, offering only nickels on the dollar. His clients told him they doubted a Georgia
jury would ever side with them because they are viewed as rich and powerful.
But Cook turned that argument upside down. He told the jury that if the federal
government could do this to the rich and powerful Rockefellers, then imagine what they
could do to ordinary citizens of Georgia. The jury awarded the families $5.5 million,
multiple times what the government had offered.
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In 1985, Cook used his extraordinary ability to relate to jurors and his exceptional crossexamination skills in defending C.H. Butcher Jr. of Knoxville, Tenn., in what was then
one of the largest federal banking-fraud cases in history. His client's brother, Jake
Butcher, had already pleaded guilty for his role in the alleged scheme.
During jury selection, Cook's fellow lawyers advised him to use his peremptory strikes to
remove from the jury both a military veteran and an eighty-one-year-old woman, neither
of whom fit the profile they were looking for.
"They thought she was too damn old and would fall asleep during the highly complicated
financial testimony, and they thought the veteran was too pro-government," Cook says.
"I never use jury experts because I think they are full of shit. Picking a jury is about
common sense and something down deep in your gut. It's not about science.
So I kept them on the jury."
The key witness in the case was a senior executive from a national accounting firm hired
by federal prosecutors to review millions of pages of documents from the failed United
American Bank. The auditors discovered that the $3 billion Butcher banking empire in
Tennessee was nothing more than a house of cards based on paper fraud. Tens of
thousands of people had lost their money.
The entire case rested on the credibility and independence of the private auditors.
On cross-examination, Cook asked the witness whether he had personally reviewed the
allegedly fraudulent documents.
"No sir," came the answer.
"But I have working for me the best and most honest team of accountants in the
business," the executive responded.
Cook asked whether he was willing to vouch for them personally.
"Yes, sir," the executive replied. "I know each and every one of them, and they are the
best."
Cook then turned to the four accountants seated behind the prosecution table and asked
them to stand.
"Are these the four?"
Yes, said the witness.
"Well, I want you to introduce each of them to the jury," Cook continued.
The witness stammered for a minute and then proceeded to say that each was highly
educated and well-qualified.
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"But I want their names," Cook said. "You said just a minute ago that you know each and
every one of them, and that you vouched for their credibility and expertise. What are
their names?"
One by one, Cook acknowledged the four accountants, asking the executive to provide
their names.
Finally, the executive admitted he couldn't remember them.
When the four started to sit down, Cook stopped them and asked them to remain
standing. He returned to the witness. "And if you, at any point during my crossexamination, ever remember any of their names, you stop me and let me know."
Every few minutes, after a series of questions, Cook paused dramatically and returned
attention to the standing accountants: "Have you remembered any of their names yet?"
He never did.
In his closing argument, Cook all but ignored most of the findings of the accountants. He
questioned the integrity of the audit, focused on patriotic themes, and reminded the folks
in the jury box that they could be a check on an all-powerful government.
At the end of the six-week trial, the jury acquitted Butcher on all counts. As Cook walked
from the courtroom, the eighty-one-year-old juror approached him and whispered in his
ear, "I was with you from the beginning, Bobby Lee."
BOBBY LEE COOK
Born: 1927 in Lyerly, Georgia
Firm: Cook & Connelly in Summerville, Georgia
Law School: Vanderbilt.
Significant Cases:
1986 – Defended Tennessee banker C.H. Butcher Jr., who faced twenty-five counts of
fraud. Butcher was acquitted on all counts.
1988 – Represented former Auburn University All-American football star Bobby Hoppe,
who was charged with murder in a 1957 shooting. Jurors deadlocked 10-2 for acquittal.
The case was never retried.
Currently – Represents Wayne Williams, who is appealing his 1982 conviction for the
murder of two black youths in what was known as the Atlanta Child Murders.
Other Career Highlights – Widely believed to have inspired the TV-show character Ben
Matlock.
34
JAMES BROSNAHAN
DEFENDING CLIENTS, NOT MOVEMENTS
James Brosnahan has tried more than 140 cases to a verdict. He's prosecuted
murderers and the secretary of defense. He's defended the chair of Hewlett-Packard and
the man known as the "American Taliban."
But when it comes to weird moments in court, nothing tops an experience in Reno, Nev.,
a few years ago.
Brosnahan was defending a man in a civil tax recuperation case in federal court.
"I was sitting at the defense table, making notes for my closing argument, when I
suddenly hear this scream," says Brosnahan. "I look over and my client has opposing
counsel by the throat."
Brosnahan rushed over to pull his client off the lawyer. The federal judge hit the panic
button under the bench, causing U.S. marshals to storm into the courtroom, weapons
drawn.
"The defendant is trying to kill the tax attorney," the judge yelled out.
The marshal paused, holstered his gun and, in a calm voice, responded, "Judge, that's
only a misdemeanor."
"We won the case, but my client still went to jail for six months for attacking the tax
attorney," says Brosnahan.
Brosnahan turned seventy-five in January, but he has no plans to slow down. He has
four jury trials and two nonjury trials already scheduled for this year.
"My standard for taking a case is extremely low," he says. "But nothing compares to the
electricity of an actual trial, and it is magnified when it is a jury trial."
A senior partner at Morrison & Foerster in San Francisco, Brosnahan has received about
every honor the legal profession hands out. The American Inns of Court honored him
with its 2007 Lewis F. Powell Jr. Award for Professionalism and Ethics. The American
Board of Trial Advocates and the American College of Trial Lawyers named him lawyer
of the year in separate years. His online bio is eighteen pages long, listing all of his
major court victories, honors and published articles.
Brosnahan says his decision to try all kinds of cases – civil and criminal – has allowed
him and trial lawyers of his generation to gain the courtroom experiences that following
generations have not had.
"The emphasis on specialization of practices is not all good," he says. "I strongly
encourage today's young litigators to take on one or two criminal cases every year. It will
make your civil trial practice so much better."
35
Early Days in the Desert
Brosnahan started his legal career as a prosecutor in the U.S. attorney's office in
Phoenix. He remembers his first jury trial as if it were yesterday. The date, he says
without hesitating, was April 10, 1961. The charge was murder. The defendant, who was
a member of the Pima tribe, had repeatedly stabbed the victim, a member of the Apache
tribe.
The murder took place in Bapchule, a small Arizona village that consisted of five huts.
The victim lived in one hut and the defendant lived in another. During jury selection, a
prospective juror announced that he also lived in one of those huts in Bapchule but
claimed he didn't know the defendant.
"I had no idea what I was doing," Brosnahan says. "But I knew that there was no way
this juror didn't know the defendant. That's when I first realized that sometimes jurors
lie."
Brosnahan used one of his peremptory strikes to remove that juror and went on to win a
first-degree murder conviction against the defendant.
"The great thing about jury trials is that there are always surprises," he says.
Brosnahan points to a trial he conducted in Santa Clara, Calif., a few years ago. He
asked jurors in the venire whether anyone in the group was a party to a pending case in
court. A woman seated in the second row raised her hand and said she was a defendant
in a case.
"What kind of case – civil or criminal?" Brosnahan inquired.
"A criminal case," she responded.
"What is the charge against you?" he asked.
"A murder case," the woman replied.
"All at once, the jurors sitting beside her slowly started moving away," he says. "I didn't
need to use a peremptory on her."
In 1989, Brosnahan represented Steve Psinakis, a Greek-American businessman
charged with illegally transporting explosive materials. Psinakis had been involved in the
overthrow of Ferdinand Marcos. Philippine President Corazon Aquino pressured the
U.S. government to drop its case. And witnesses at trial included the Philippine secretary
of state.
Twenty-seven federal agents had raided Psinakis' home, pointed guns right against his
face, physically threatened him and drugged his dog.
"The judge didn't react at all to what the agents did to my client, but when he heard
about the treatment to the dog, he was outraged," says Brosnahan. "That's when we
learned the judge was a dog lover."
36
Key evidence in the case was the photographs the agents took when they raided the
house, showing a bowl with the makings of a bomb – wires, glue, scissors and other
items. However, Brosnahan discovered other photos taken by the agents that showed
the same bowl, but without glue and wires.
Under oath, the defense attorney finally got an FBI agent to admit that he had staged the
photo, completely undermining the government's case. The judge was already upset at
the government about the dog, he says, and this fabrication of evidence pushed him
over the edge. In the end, Psinakis was acquitted.
Brosnahan says he gets a lot of "last-minute clients" who are represented by other
lawyers throughout the litigation process. He says he's been hired as little as three
weeks before the start of a trial.
"These clients wake up one morning and realize, holy cow, they are going to trial and
they need someone who has experience actually trying cases," he says. "I actually enjoy
those situations because it forces me to zero in on what matters in a case. There are not
twenty-five or thirty important witnesses in any case. Instead, there are only two or three
who truly matter."
In 1991, Iran-Contra independent counsel Lawrence Walsh lured Brosnahan temporarily
back to the prosecution side to lead the trial team against Caspar Weinberger, who was
the secretary of defense under President Ronald Reagan.
News made it to the FBI that Weinberger had taken and kept copious notes of Cabinet
meetings at which the sale of arms for hostages was discussed. However, Weinberger
told federal agents he had no such notes.
"The minute the FBI agents left his office, Weinberger pulled out his notebook and wrote
that the FBI came seeking his notes and that he had lied about the existence of the
notes," says Brosnahan. "Weinberger was concerned that the notes would have led to
Reagan's impeachment, which I doubt. But he should have turned them over."
Five days before the 1992 presidential election, Brosnahan secured a federal indictment
against Weinberger, charging him with making false statements to Congress. The
indictment included a handwritten note by Weinberger indicating that President George
H.W. Bush knew more than he had claimed.
Republicans accused Brosnahan of playing politics with the justice system, causing
Bush to lose his re-election bid to Bill Clinton.
"I was suddenly elevated from an infrequent contributor to Democratic politicians to
being the mastermind behind the Democratic Party," Brosnahan says.
On December 16, during a closed hearing in federal court to review secret, classified
evidence, Brosnahan said he noticed that Weinberger's lawyer, prominent Washington,
D.C., criminal defense attorney Bob Bennett, kept getting up and leaving the hearing.
The hearing ended with Bennett telling Brosnahan and the judge that he planned to
subpoena President Bush to testify during the trial on January 21 – the day after Bush
would leave office and thus could no longer claim presidential immunity.
37
"We had documented that Bush had given 218 different explanations of where he was
during Iran-Contra, so we knew he didn't want to testify," Brosnahan says.
"Eight days later, on Christmas Eve, we received word from the White House that
President Bush had issued full pardons for Weinberger and five others, thus ending any
need to call the president as a witness in the case."
Fighting the Tide of Public Disapproval
A decade later, Brosnahan would face the case of his life. He was watching the evening
news when he heard about the arrest of American citizen John Walker Lindh, who had
been captured on a battlefield in Afghanistan. Lindh was immediately labeled the
"American Taliban."
"[U.S. Attorney General John] Ashcroft went on national television to declare that John
was evil, that he was a terrorist, and that he hated America," says Brosnahan. "I told my
wife that night that this kid is in a whole lot of trouble."
The next day, December 2, 2001, Brosnahan was home watching the San Francisco
49ers when his office message system notified him of a pending voice mail. The
message was from Frank Lindh, the young man's father, asking him to take on his son's
case.
"I told John's parents that I am not a movement lawyer and that I represent individual
clients, not movements," he says. "I told them that if I ever got the feeling that I was
being used for the purpose of a movement, that I was off the case."
Brosnahan met with his partners at Morrison & Foerster to get their input. If his partners
had advised against, he says, he wouldn't have taken the case.
That being said, "I was absolutely sure that this case could kill my career," he says.
Brosnahan took the case on December 3 and immediately fired off a letter to Ashcroft
and Secretary of Defense Donald Rumsfeld demanding safe transport to Afghanistan to
meet with his client and instructing them to cease all interrogations of his client.
"For the first time in my legal career, no one even bothered to respond to me," he says.
Meanwhile, news broke that Brosnahan was representing Lindh. Death threats poured in
via telephone calls, e-mails and letters. He was forced to hire security guards at home,
at the office, and for traveling to and from court. A lawyer from Ohio told Brosnahan that
he planned to bring legal action against him for simply representing Lindh. The National
Review called Brosnahan the "American Tali-Lawyer."
Brosnahan wasn't allowed to meet with his client for fifty-four days.
"John was horribly mistreated," Brosnahan says.
"He was kept naked in a metal can – one of those containers used for shipping cargo. It
had one hole in it for air. I don't think it was legally torture, but it was horrible
mistreatment."
38
Lindh was no terrorist, according to Brosnahan. Instead, he was a teenager who went to
study in Yemen and then agreed to join Afghan forces fighting against the Northern
Alliance in that country's civil war.
Brosnahan hired one of the nation's leading terrorism experts, who had worked many
times for the federal government, to spend time with and evaluate Lindh. The expert
concluded that Lindh was no terrorist.
To prepare for possible trial, Brosnahan conducted a poll in northern Virginia, where the
case was set to be tried, to gauge public attitudes. "It wasn't good," he says. "Thirty
percent of the people wanted to give John the death penalty, and the government wasn't
even seeking death. But remember, this is just three months after the September 11
attacks, so people were still very edgy."
In the end, Brosnahan says, he had a very strong fact-based defense for Lindh. Because
this was the first terrorism prosecution post-9/11, the government didn't want to take any
chances with a loss.
Brosnahan entered into plea negotiations with Michael Chertoff, who was at the time the
chief of the criminal division at the U.S. Department of Justice.
"After we would talk, Chertoff would rush off to the White House or to see Rumsfeld to
obtain approval for the deal," Brosnahan says.
"I told him from the start that John would not plead to any of the terrorism counts
because he had never fought against American forces and he had never intended to."
The final deal provided for Lindh to plead guilty to lesser counts of supplying services to
the Taliban, and carrying a rifle and two grenades. Lindh received a twenty-year prison
sentence. "I still remember the first words John ever spoke to me: 'Boy, am I glad to see
you.'"
Says Brosnahan: "That's why I became a trial lawyer."
JAMES J. BROSNAHAN
Born: 1934 in Boston.
Firm: Senior partner at Morrison & Foerster in San Francisco.
Law School: Harvard.
Significant Cases:
1992 – Prosecuted former Defense Secretary Caspar Weinberger for his role in the IranContra cover-up.
2002 – Defended John Walker Lindh, aka the American Taliban, on charges he took up
arms against the United States in Afghanistan. In a plea agreement, those allegations
were dropped in favor of less serious charges that he supplied services to the Taliban.
39
200 – Defended the city of Oakland and Alameda County in an $836 million lawsuit
brought by the Oakland Raiders for breach of promise. Jury awarded $34 million.
2007 – Represented former Hewlett-Packard chair Patricia Dunn for her role in HP's
illegal obtaining of private phone records of journalists and HP board members. The
charges were dismissed.
Other Career Highlights – Winner of the 2007 American Inns of Court Lewis F. Powell
Jr. Award for Professionalism and Ethics.
40
RICHARD "RACEHORSE" HAYNES
THE MAN THEY CALL WHEN THEY'RE IN TEXAS-SIZE TROUBLE
There was a time when Richard "Racehorse" Haynes had his clients thank judges and
juries at the end of their trials. But back-to-back cases in the 1970s changed his mind
about that.
First, a Texas jury had just found his client not guilty on all counts, when Haynes told the
court his client had something to say.
"Ladies and gentlemen, I want to thank each and every one of you," the client stated.
"And I promise you that I will never, ever do it again."
A few weeks later, another Haynes client was acquitted. Again, the defendant thanked
the judge and jury, only to be interrupted by the judge.
"Don't thank me, you little turd," the judge said. "You and I both know you're guilty."
Living and learning, says Haynes, is the key to being a good trial lawyer. If you don't try
something, you will never know if it would have worked. And Haynes admits he's tried a
lot of things.
"If you go in for heart surgery," he says, "you want a surgeon who has done it a few
times before."
Indeed, Haynes is the master of courtroom theatrics. He once shocked himself with a
cattle prod in open court to show the jury that, while it "hurts like hell, it's not deadly." Another time, he threatened to drive a nail through his hand to prove to the jury that it
wasn't really that painful. And he once cross-examined an empty witness chair in an
effort to mock opposing counsel.
But these courtroom demonstrations are not the reason that Racehorse Haynes is a
legend. The reason is his extraordinary success.
During his five decades of practice, he's represented forty clients facing capital
punishment; not one has been sentenced to death.
Between 1956 and 1968, Haynes had one of the longest winning streaks in legal history.
He defended 163 individuals charged with driving under the influence of alcohol. All 163
were found not guilty.
Comedian, musician and former Texas gubernatorial candidate Kinky Friedman
described Haynes as "one of the most successful and most colorful silver-tongued devils
to grace Texas since God made trial lawyers."
Haynes, who turns eighty-two in April, has been the defense attorney in some of the
most prominent Texas murder cases ever tried. He's been memorialized in three books,
two movies, a Broadway play, and even in popular music. In 2003, singer Tom Russell
released a single called Racehorse Haynes:
41
Show me the phone, lend me a dime
I ain't rollin' over, I ain't doing no time
I ain't coppin' no plea, I'm hip to your game
I ain't talkin' to no one, except Racehorse Haynes
Somebody better call Racehorse Haynes.
Early Shtick Grows Old
Richard Haynes split his childhood growing up in Houston and San Antonio. His
grandmother read Shakespeare and the Bible to him at bedtime.
He got the nickname "Racehorse" from his high school football coach, who complained
that Haynes always darted for the sideline instead of gaining yards downfield.
After a stint with the Marines, Haynes used the GI Bill to pay his way through college
and law school. He graduated from the Bates College of Law in 1956.
Haynes became a lawyer on a Friday afternoon and was in court trying a criminal case
the next Monday morning.
"My first time to address the jury, I stepped right in the [chewing tobacco] spittoon," he
says. "I felt stupid, but the jury apparently felt sorry for me, and probably felt sorry for my
client that he had such a stupid and clumsy lawyer. They acquitted him on all charges."
If that works, Haynes thought, maybe he should try it again. So he started his second
trial by stepping in the spittoon again, making it look like an accident. Again, the jury
declared his client not guilty. Noting this seemed an effective ice-breaker with the jury,
the Houston lawyer did it a third, a fourth – and continued nearly a dozen times. With
each pratfall, the result was the same.
Finally, Haynes began another case by heading straight for the courtroom spittoon when
the judge called him over to the bench.
"You're not going to kick over that spittoon again, are ya?" the judge asked.
"I guess not, your honor." Haynes knew the gag had run its course.
The Dallas Observer described Haynes as a "flamboyant ex-welterweight boxer, South
Pacific war hero, motorcyclist, sailor and millionaire with a reputation that has grown to
nine feet tall and weighs in at a junkyard-dog-mean 500 pounds." He told the weekly that
he wanted to practice for another four years and then hang it up. That was in 2003.
But Haynes has no plans to step aside yet.
"I have to work through 2009 because I have a half-dozen cases set for trial," he says.
Haynes is famous both for the variety and quantity of his cases. For instance, he's
represented three dozen women in what he refers to as "Smith & Wesson divorces,"
which are cases where the husband had been abusive, leading the wife to kill in selfdefense.
42
"I won all but two of those cases," he says. "And I would have won them if my clients
hadn't kept reloading their gun and firing."
The biggest of those Smith & Wesson divorces was his defense of Vickie Daniel, a
former Dairy Queen worker accused of murdering her husband, who happened to be the
speaker of the Texas House of Representatives and the son of a former Texas governor.
Haynes knew the case would be neither popular nor easy.
The Liberty County courthouse windows were open to let in some fresh air as Haynes
rose from his chair to start his closing argument. At that very moment, the high school
band practicing next door started playing the William Tell Overture. The prosecutor
immediately objected, claiming Haynes had orchestrated the whole thing.
"I wish I had, because it is a marvelous idea," Haynes told the judge.
Courtroom observers say Haynes presented a brilliant defense, showing that the popular
legislator had abused his wife, and that she did what she did to protect her health, life
and children.
Daniel was acquitted and awarded custody of her kids. The trial established battered
spousal syndrome as a legitimate defense in Texas homicides.
Haynes has been on the other side, too. He once represented a man who had been
charged with assaulting a woman. He was convinced his client was being framed by the
accuser. The alleged victim, he says, had a reputation for not telling the truth, as well as
for "using a lot of NFL vernacular."
To make his point, Haynes approached her on cross-examination and stepped on her
foot.
The woman spewed a raunchy curse at him.
"That's all I needed to show the jury, your honor," Haynes told the court, and then he sat
down.
His client was found not guilty on all counts.
A Dramatic Flair
Haynes has lived by the advice of his mentor, legendary Texas trial lawyer Percy
Foreman: "If you can prove the victim abused a dog or a horse, you can convince the
jury that the guy deserved to be killed."
"For some reason," Haynes continues, "cats don't apply."
For Haynes, the courtroom is always a place for theater. He reenacts crime scenes. He
mimics opposing counsel. He shouts, screams and dances. He waves around murder
weapons – be they guns or cattle prods.
There was a trial in the 1970s in which the prosecutor refused to call a key witness
because he knew Haynes would tear him apart on cross-examination. Furious, Haynes
43
used his closing argument to cross-examine an empty witness chair, asking the same
probing questions he would have asked the absentee witness.
The stunt was effective; again, the jury acquitted on all counts.
Haynes once defended two members of the Outlaws motorcycle gang named Fat Frank
and Super Squirrel. He says his clients were accused of nailing a woman, crucifixion
style, to a tree after she "violated the first rule of the oldest profession" – she didn't share
money she made from her prostitution business.
Haynes says Florida prosecutors only pursued the charges because the woman was the
daughter of a sheriff's deputy.
Haynes showed that, as part of the motorcycle gang, the woman had performed a
variety of public sexual acts, and he tried to convince the jury that she'd bragged about
having her hand nailed and that it hadn't been that big a deal.
For the closing argument, Haynes had an idea: He would nail a hand to the defense
table to show the jury it wasn't painful. Haynes met with a medical doctor to find out if
there was a place in the hand where a nail would cause less damage and blood loss. He
then got the doctor to inject his hand with Xylocaine to reduce the pain.
Before the judge could intervene, Haynes called off the stunt.
"I chickened out at the last minute," he says. "I was afraid I would start crying in front of
the jury."
The defense was effective even without the grotesque exhibition; the jury found his
clients not guilty.
Haynes admits he uses flaws in the court system for the benefit of his clients –
sometimes to his regret. Once, he defended two white cops charged with killing a black
man. After a long, hard-fought trial, the jury found his clients not guilty. When a reporter
asked Haynes to describe the turning point in the case, Haynes blurted his answer:
"Well, it was the moment the court chose the last one of those twelve bigots to serve on
the jury."
"For several years after that," he says, "prosecutors would pass around the newspaper
article with that quote in it to prospective jurors."
Experience Pays Off
One of Haynes' biggest cases came in 1976 when he was hired by Fort Worth
multimillionaire T. Cullen Davis, who was charged with murdering his stepdaughter and
his estranged wife's boyfriend, and attempting to kill his wife. At the time, Davis was
widely believed to be the wealthiest man to have ever been tried for murder in the United
States.
Haynes provided a two-pronged defense: Davis was at a movie theater watching The
Bad News Bears at the time of the murder, and an eyewitness put someone else at the
scene at the time of the slayings.
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The key to getting the jury to believe an alibi defense, he says, is to simultaneously
provide an acceptable alternative scenario that points to someone else committing the
crime. Haynes interviewed his client's wife for thirteen days in a cross-exam some critics
said put her on trial by forcing her to answer sexual questions unrelated to the
allegations.
The verdict: not guilty.
Two years later, Davis was arrested again. This time, he was charged with hiring a hit
man to kill the judge in his divorce case, his ex-wife and a handful of others.
Prosecutors, who had Davis on audio- and videotape, were confident of a conviction.
But the Houston lawyer once again worked his magic. Haynes told jurors that the state's
key witness was a paid informant who was not to be believed, that Davis went along with
the sting operation because he thought he was working for the FBI, and that Davis was
so rich that he wasn't concerned with whether these people lived or died.
To everyone's shock, Davis was again acquitted.
Haynes loves discussing his cases to teach young lawyers about trial practice. In 1978,
he told attendees at an ABA meeting in New York City that attorneys too often limit their
strategic defense options in court. When evidence inevitably surfaces that contradicts
the defense's position, lawyers need to have a backup plan.
"Say you sue me because you say my dog bit you," he told the audience. "Well, now this
is my defense: My dog doesn't bite. And second, in the alternative, my dog was tied up
that night. And third, I don't believe you really got bit."
His final defense, he said, would be: "I don't have a dog."
RICHARD "RACEHORSE" HAYNES
Born: 1927 in San Antonio.
Firm: Richard Haynes & Associates in Houston.
Law school: Bates College of Law (now the University of Houston Law Center).
Significant Cases:
1971 – Haynes defended prominent Houston plastic surgeon Dr. John Hill, charged with
killing his wife by withholding medical attention. Some said the doctor had injected
deadly bacteria into a dessert fed to his wife. The first court appearance ended in
mistrial, and Hill was murdered by a hit man before he could be retried.
1977 – Successfully defended Fort Worth multimillionaire T. Cullen Davis on charges he
killed his estranged wife's daughter and boyfriend, and tried to kill her.
1979 – Won acquittal for Davis again on charges that he hired a hit man to murder the
judge presiding over his divorce case.
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1983 – Successfully defended British businessman Ian Smalley, who was charged with
international arms smuggling.
Other Career Highlights – Inspired singer Tom Russell's ballad Racehorse Haynes on
the 2003 album Modern Art.
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