Ben is a trial and appellate lawyer. His favorite legal habitat is the courtroom. He spent his first eight years following law school in public service — two years as a law clerk to the Honorable John T. Copenhaver, Jr., two years as a federal prosecutor, and four years as Counsel to the Governor of West Virginia.
Because no good deed goes unpunished, Ben has been trying cases, or preparing to try them ever since, for plaintiffs and defendants. He and Brian Glasser formed Bailey & Glasser in 1999. Ben plays a leading role in many of the firm’s most challenging cases. His current and recent work includes:
- Currently serving as one of twenty-three lawyers on the Plaintiffs’ Steering Committee for the Volkswagen Diesel Emissions MDL pending in the Northern District of California, the largest automotive class action in history, with settlements projected to exceed $10 billion,
- Currently serving as one of six plaintiffs’ coordinating lawyers in the Freedom Industries Chemical Spill litigation in the Southern District of West Virginia, with a settlement process underway which will provide up to $150 million to over 300,000 affected residents and businesses,
- Leads a team of law firms prosecuting a civil antitrust/monopolization action for the State of West Virginia against the largest provider of asphalt and paving services in the State, if not the world,
- Served as one of nine lawyers in the country on the Plaintiffs’ Lead Counsel Committee for the Economic Loss Cases in the Toyota Sudden Acceleration MDL in the Middle District of California, which settled for $1.6 billion, and handled more than a dozen related death and serious injury cases,
- Retained to take an appeal from an adverse arbitration decision rendered by the West Virginia Business Court. The State of West Virginia’s Investment Management Board brought a breach of contract action against an annuity provider seeking damages of approximately $100 million. The case also presents novel constitutional and structural issues involving the composition of, and public access to, arbitration in the Business Court,
- Successfully handled the appeal for the defendant of a $93 million punitive damages verdict against a nursing home in West Virginia, then implemented a strategy to resolve, and win at trial, the client’s remaining cases,
- Representing the Chief Justice of the West Virginia Supreme Court of Appeals in impeachment proceedings, the first in West Virginia in more than 140 years, and
- Leads a team which regularly represents lawyers and doctors in defending malpractice claims, professional licensure proceedings, and criminal investigation.
Ben is a permanent member of the Judicial Conference of the U.S. Court of Appeals for the Fourth Circuit, a founding member of the Charleston Chapter of the American Inns of Court, and a Fellow of the American Bar Association. He serves on the national board of the Public Justice Foundation. He is AV rated in Martindale-Hubbell. Chamber U.S.A.’s Guide to America’s Leading Business Lawyers rates him in the first tier of General Commercial Litigators in West Virginia and described him as an “outstanding litigator and go-to guy.” He lectures occasionally on legal ethics and trial practice issues.
- Selected by his peers for inclusion in The Best Lawyers in America© for Bet-the-Company Litigation, Commercial Litigation, Criminal Defense: White-Collar, and Product Liability Litigation – Plaintiffs (2005-2020)
- Recognized within Chambers & Partners USA Guide in General Commercial (2011-2019)
- Chosen as one of the Top 100 Trial Lawyers by the National Trial Lawyers organization
- Recognized in 2011 by The Best Lawyers in America© as one of the Lawyers of the Year within Criminal Defense: White Collar
- Selected to the list compiled by Super Lawyers® for General Litigation, Criminal Defense: White Collar, and Environmental Litigation (2007 – 2017)
Volkswagen “Clean Diesel” Marketing, Sales Practices, and Product Liability Litigation
Ben Bailey serves as one of twenty-three lawyers on the Plaintiffs' Steering Committee for the Volkswagen Diesel Emissions MDL pending in the Northern District of California. The Bailey & Glasser team played a central role in developing the technical and engineering parts of the case. The first round of claims in the case, involving vehicles with 2.0 liter diesel engines, settled for more than $15 billion. Mr. Bailey also served on the settlement team dealing with vehicles with the 3.0 liter engines; the settlement of that portion of the case was worth at least $1.2 billion. A $327.5 million settlement with German auto electronics supplier Robert Bosch has also been approved.
Toyota Unintended Acceleration Marketing, Sales Practices, and Product Liability Litigation
In 2009, we filed one of the first wrongful death actions alleging sudden-acceleration defects in a Toyota Camry. Ultimately, our lawyers were appointed to key MDL leadership roles in what came to be, at the time, one of the largest products liability cases ever filed. Ben Bailey served on the plaintiffs’ lead counsel committee pursuing economic-loss damages; Eric Snyder serves in the same capacity on the committee pursuing personal injury claims. The firm played a leading role in developing expert testimony on the sudden acceleration defect in 2002-2010 Toyota vehicles. The economic-loss claims settled for $1.6 billion. Hundreds of personal injury claims have also been settled; dozens remain pending.
State of West Virginia v. USEPA, No. 12-5150
Bailey & Glasser counsel served as Special Assistant Attorneys General for West Virginia in the groundbreaking environmental litigation filed in the State from 1999-2003--the Mountaintop Removal, Cumulative Hydrologic Impact Analysis, and Bonding Litigations. Almost a decade later, Bailey & Glasser lawyers again represented the State against USEPA in these actions:
- Mingo Logan Coal Co. v. EPA, 714 F.3d 608 (D.C Cir. 2013);
- National Mining Association, et al. v. Gina McCarthy, et al., 758 F.3d 243 (D.C. Cir. 2014); and
- WV Highlands Conservancy, Inc., et al. v. Randy C. Huffman, 651 F. Supp. 2d 512 (S.D. W.Va. 2009).
Rector v. Alliance Coal
Bailey & Glasser represented a group of heirs and successors to a partnership that proved up a 200-million ton coal-reserve and assigned it to Alliance’s predecessors in a 1977 contract in exchange for royalties. After a two-week bench trial, our client was awarded nearly $3.9 million in unpaid royalties, plus an order of specific performance to pay future royalties. Verdict affirmed on appeal and judgment for $6.5 million entered.
Not guilty verdict for coal operator
In 2014, the firm obtained a full acquittal for a coal operator charged in a twenty-three count federal indictment. Our client was accused by the United States of participating in a tax fraud conspiracy involving more than $10 million, as well as engaging in prohibited currency transactions. The United States also sought the forfeiture of more than $10 million from our client. The government's investigation spanned several years, resulting in felony convictions for twenty-five defendants. After a nearly three-week jury trial, however, our client was found not guilty on all charges.
Citizens Against Pollution v. Ohio Power
We served as lead trial counsel for citizens’ group in environmental lawsuit against Ohio Power. The dispute centered on sulfuric acid emissions from AEP's Gavin Power Plant, and involved dozens of depositions, multiple experts in toxic air emissions, and a complicated regulatory scheme at the intersection of RCRA and CERCLA. After years of litigation and two days of trial, the case resulted in a creative consent decree which provided relief otherwise unavailable in a trial.
Bank of America, NA v. FDIC-Receiver
The firm was retained to represent the FDIC in its capacity as receiver of Colonial Bank. The case was resolved favorably to the FDIC as part of a multi-case, multi-agency settlement for $16.65 billion, the largest single-company settlement in U.S. history. The FDIC's portion of the BoA total settlement, which includes payment for FDIC's counterclaims in this case, amounts to $1.031 billion. Christopher Morris, Ben Bailey, Patrick Muench, and Maryl Sattler of B&G handled this matter for the FDIC.
Patriot Coal Corp. Bankruptcy
Our lawyers served as Special Assistant Attorneys General in both Patriot Coal bankruptcy cases, the first in the Southern District of New York and Eastern District of Missouri and the second in the Eastern District of Virginia. They represented the West Virginia Department of Environmental Protection as well as the West Virginia State Tax Department and Offices of the Insurance Commissioner. For the DEP, our lawyers helped secure a settlement valued at $50 million for the State to help ensure funding of reclamation and water treatment. On behalf of the Tax Department, our lawyers obtained dismissal of the Patriot trustee’s $5-plus million suit to recover alleged tax refunds due.
WP Steel, LLC
On behalf of the West Virginia Offices of the Insurance Commissioner, firm lawyers served as Special Assistant Attorneys General for the State of West Virginia in connection with the Chapter 11 case of RG Steel, LLC. After RG Steel defaulted on its workers’ compensation obligations, firm attorneys obtained relief from the automatic stay to allow the Insurance Commissioner to obtain $7 million in funds to pay workers’ compensation claims.
State of West Virginia v. Microsoft Corporation
Our lawyers served as special assistant attorneys general for the State of West Virginia in antitrust and consumer protection action against Microsoft Corporation; the case settled for a total value of $21 million.
Not guilty verdict for businessman in murder trial
Not guilty verdict of a funeral home owner accused of murder.
West Virginia, 1981
District of Columbia, 2014
Counsel to the Governor of West Virginia, 1984-1988
Assistant U.S. Attorney for the Southern District of West Virginia, 1982-1984
Law Clerk, Hon. John T. Copenhaver, Jr., U.S. District Court for the Southern District
of West Virginia, 1980-82
Memberships and Affiliations
Hon. John A. Field, Jr., Inn of Court
Permanent Member, Judicial Conference for the U.S. Court of Appeals for the Fourth Circuit
Fellow, American Bar Association
Fellow, West Virginia Bar Foundation
U.S. Supreme Court
U.S. Court of Appeals for the Fourth Circuit
U.S. Court of Appeals for the D.C. Circuit
U.S. District Court for the Northern District of West Virginia
U.S. District Court for the Southern District of West Virginia
Supreme Court of Appeals of West Virginia
Q: You’ve had an amazing career, and your firm, Bailey & Glasser, is one of the most interesting we’ve seen. Can you tell me a little about your background?
A: Sure. I grew up in Parkersburg, W.V., which is a medium-sized town on the Ohio River. It was a wonderful place to grow up. My parents both grew up there and went to high school there. I’m the oldest of four. I feel like that’s less and less common and that’s probably too bad. I went to college at Washington & Lee. And I wasn’t sure what I wanted to do when I grew up. I took the LSAT, clobbered it, and thought ‘oh, maybe I ought to be a lawyer’. I don’t remember what particularly led me to law, beyond that I was always kind of interested in it. I took a legal ethics class as an undergrad that probably had a lot to do with piquing my curiosity enough to take the test.
Q: Was anyone in your family a lawyer?
A: No. My father was an engineer; the Navy put him thru Georgia Tech in World War II. He had two bachelor’s degrees, one in civil engineering and the other in industrial engineering. His entire life he worked for a chemical company, then known as American Cyanamid at Wheel Island. My father drove up and down the same road every day, 18 miles for 40 years. My Mom, the brains of the operation, did a year-and-a-half of college at Pitt in the 40s, but came home and married Dad when he got out of the service. They’re 89 and 88 now.
Q: And how did you get from West Virginia to Harvard Law School?
A: After the LSAT, I applied to law schools, got in everywhere I applied and at the same time I didn’t really want to go on to graduate school. So I got a job at the George C. Marshall Foundation, on the campus of the Virginia Military Institute right beside Washington & Lee. I was hired to run a program that brought history majors from a bunch of small liberal arts colleges around the Midwest to the Marshall Foundation, where they could do research in original source materials, including Marshall’s papers. We were funded by the Lilly Endowment.
So I called Harvard and said ‘I don’t want to come until next year as I’ve got a job. Can you defer me?’ They said ‘no, if you don’t come we can’t save your place.’
So I took the job. About nine months into the job, the guy who ran the endowment got fired and the program ended. I reapplied to Harvard and got back in. There’s a very good chance if the grant money hadn’t run out I’d still be there. I lived on a cabin by a river in the middle of the Shenandoah Valley. It was wonderful.
The story I usually tell about Harvard is about my first class at Harvard Law School, which was a legal writing class, the only small class you have there. There were 15 people in the room and the guy who taught it was an adjunct, who goes around and says ‘Tell us all what you’ve been doing the last year’. I was the fourth person. And here’s how it goes.
The first person is a very militant, obnoxious person. She snarls, ‘Well, I’ve spent the last five years working for Senator Kennedy on the Judiciary Committee helping advance and write civil rights legislation’.
The guy next to her was very tweedy in a tweed jacket, with curly hair, and wire-rimmed glasses. And he said, ‘I got my bachelor’s at Harvard in English literature, my masters in English literature, and I hope this year to finish my Ph.D. in English literature while I’m at law school’. He’s still there and an assistant dean, by the way.
That was all pretty impressive. And then the guy beside me was a long tall drink of water from Texas. He literally had a slide rule on his belt. He was an engineer and had spent the last three years working for Raytheon designing the reentry guidance system for the space shuttle.
And then the teacher turned to me and asked, “Mr. Bailey, what have you been doing?”
“Well,” I said, I’ve been living in a cabin on a river, drinking beer and reading trash.” I staked out my turf. I’d had enough of extraordinary accomplishments.
Harvard Law School is an incredible institution, the greatest concentration of interesting, diverse and smart people I’ve ever been around. I looked at other law schools and smaller law schools. Once I figured I was going to go, there was really nowhere else. I did all my school on financial aid and loans as my folks couldn’t have afforded anything. I’m deeply grateful to Washington & Lee and Harvard.
Q: After graduating from Harvard, did you consider working in New York, Washington, D.C. or another big city?
A: I actually didn’t think I would go home. But after my first year of law school, I had a terrible car wreck and missed my 2nd year. It was July 3, 1977, and I was driving a 1965 VW Bug and a woman came across the lane in a Ford Torino and slammed into my car. I had a horrible leg break.
I had been working for Kirkpatrick Lockhart in Pittsburgh. I spent three months in traction immobile after the doctors opened my leg and had to reassemble it. I spent the next 2 ½ years on crutches and a cane. By Christmas 1977, I was able to hobble around on crutches.
So I went to work for a two-person storefront law firm in Parkersburg and one of the partners was a part-time judge on the state Court of Claims. He hired me as the Court of Claims’ first law clerk. I helped write opinions and became at the time the world’s leading expert on pothole law. I wrote the first opinion ever on a person getting money from the state for a car falling through a pothole!
Q: That sounds like an amazing experience.
A: It was. We had clients who just walked in and out. At Christmas, a client walked in with a cardboard box full of Mason jars. He said ‘This is for Dan” and it was his annual retainer – a box of moonshine!
I spent a year there on crutches seeing the soft underbelly of the retail side of law practice. The next summer before going back to law school, I went to work in D.C. in Alexandria and Arlington, Va., for a firm then called Boothe Prichard & Dudley, now merged with McGuire Woods. They had an office in Old Town Alexandria where the Boothe family had practiced law since the 18th century. I worked there for the summer before going back for 2nd year. Between my 2nd and 3rd years, I worked in New York for Winthrop Stimson at 30 Rock and 30 Wall Street, splitting my time.
Q: Was it a close call after seeing the big city?
A: Not really. I enjoyed all of that but I knew I had had more fun at the little law firm in Parkersburg. As a summer person working for a big law firm, I wrote briefs for a file on contingent plan D and I knew that’s exactly what I would have been doing had I gone to work there full time.
Big law firms were paying big money, which was a lot of pressure so I gave it thought. To test my convictions I applied for clerkships and got one with a judge in Charleston, Judge John Copenhaver. He’s still serving and active, the longest serving active federal judge. He’s an extraordinary man and a wonderful mentor. I came back here to Charleston to clerk for him, fully expecting to go back to New York. But I did two years as clerk for him and then just as that clerkship was ending there was a big turnover in our U.S. Attorney’s office here with a change in the political administration. And once I had started law school, it was clear to me I had to be a trial lawyer; the weirder the better; the more extreme the better.
Q: What kind of cases did you work on at the U.S. Attorney’s Office?
A: In some ways, it wasn’t a big move – I was on the 5th floor of the federal building as a clerk, and I moved to the 4th Floor for the U.S. Attorney.
When I got there – just happenstance, we’re a product of serendipity – they had a big project going on investigating fraudulent coal-tax shelters. The price of coal went through the roof in the late ‘70s, and Congress passed tax credits to encourage domestic energy production. Those always attract talented shysters.
At the time, you could actually – if you were smart – make more money investing in coal mines that failed rather than those that worked. All those things peaked in the late ‘70s, and by 1982 when I went to the U.S. Attorney’s office, the IRS and one of its key agents and one remaining prosecutor had all these cases they’d investigated and no one to try them.
Being a glutton for punishment, I said ‘I want to do that.’ In two years there, I tried more than 10 cases that lasted two weeks or more each. All I did was try cases. The agent had done all the work and basically what we would do is I’d say, ‘What’s this case about”, and “who’s this witness” and “what am I supposed to do”.
That investigator is Chuck Little and he still works for me today.
Q: Did you win many of those trials?
A: I lost one and won all the rest. The defendants were all bankers, engineers and other professionals. They all had lawyers, many from D.C., Boston, New York – very capable adversaries. That’s way more fun than having adversaries who aren’t. And it’s a great way to learn how to try cases.
I was getting ready to try one of our bigger ones in the summer of 1984 and the guy we were going to prosecute had a heart attack. I set three months aside for that trial and all of a sudden – poof! – I didn’t have anything to do. I had been griping loudly, for me anyway, about the quality of West Virginia state government and I didn’t like Governor Rockefeller much. So some friends of mine suggested that I should apply for a job with former Governor Arch Moore, who was putting together a campaign for Governor.
To understand the appeal to me, you should know the history with Arch Moore. My dad was a rock-ribbed Republican in a very Democratic state. In the early ‘60s, Governor Moore was a Republican congressman – and he was Parkersburg’s congressman.
And at that time, imagine this, you could have a private law practice and serve in Congress. Today people would look askance at that.
Congressman Moore was coming to speak at the Lincoln Day dinner in 1962, and my dad and I met him at the airport. I remember I was 7 and it was a very small plane. The plane lands, the Governor gets off with his wife, Shelley, and walks over to my dad, says “Hi Bob,” and he introduces me. Well, Shelley walked up and says, “Damn it, Arch, I left my dress back in Clarksburg. We’ll have to send pilot back to get it.”
The Governor looks at my dad and me, and asks if I’d ever been on an airplane and I had not. So the Governor asks my Dad if he would like to fly over to Clarksburg, pick up the dress and come back.
I climbed into the co-pilot seat, probably it was a King Air, flew to Clarksburg and back. So fast forward to 1984, and I send a resume to the gubernatorial candidate. The staff calls me over for an interview, I walk in and Governor Moore says, “Hi Ben, did you enjoy that plane flight?”
Q: It must have made quite an impression on you.
A: Governor Moore was one of those people with a photographic memory and who never forgot a name or place. I left the U.S. Attorney’s office, went to work for him, we won and then went into office with him and I was his lawyer at 31.
I was the number two or three person in the government of West Virginia. Which is crazy and makes no sense at all. But that’s what it was.
Q: What happened when Gov. Moore was indicted for extortion?
A: He went to jail and I didn’t. I tried to keep him out of trouble, but didn’t keep him out of all of it. I left the job in the middle of the investigation. When we left, the investigation into him was hot and heavy. The Bowles Rice law firm offered me a job and I wasn’t sure I was employable because of the investigation.
They and I were pretty upfront about it and I became a litigation partner there for 10 years. I handled civil defense work and criminal defense work. Towards the end of my 10 years there, a couple of really juicy criminal cases came down the pike, and I was unable to take them because of conflicts within the firm. The CEO of one of the bigger hospitals in Southwest Virginia was being charged with fraud and one of the alleged victims was a bank, and we represented the banking association. There was an issue conflict, not even an actual conflict.
Q: Is that where you met Brian Glasser?
A: Yes, he was my associate there, and he’s a force of nature. That’s an understatement. He tried a big case for a big client as an associate and beat a big law firm in a fight between two coal companies, just beat ‘em like a drum. And I had to scratch and claw to get Brian a $10,000 bonus. I had a lot of dear friends there, still do, but Brian was frustrated, and he wasn’t going to last. I knew exactly what I’d be doing the rest of my career if I stayed there.
So we opened Bailey Glasser on March 1, 1999. It was a fresh start, which are two- or three- or four-edged swords. The opportunities were pretty limitless. We thought we had some risk, but didn’t think we had a lot. We didn’t have clients, we just left them and opened our door. Me, Brian, Chuck and a secretary.
Q: How did it go? And what were your aspirations?
A: We did very well from the beginning. People in West Virginia and Charleston and the area around here knew we were pretty aggressive trial lawyers. Brian was a big Democrat. And I’d been counsel to a Republican Governor, so we had access to the political establishment, such as there is. We had hopes some day we’d get to 12 or 15 lawyers.
We thought we could grow a practice to be statewide and maybe regional. We weren’t sure exactly what it would look like, though we were sure it would have something to do with the coal industry and we wanted a criminal practice and we wanted to do plaintiff work. From the beginning, we wanted to be both plaintiff and defense lawyers. That runs contrary to the grain. But when I’m asked what kind of lawyer are you? I say ‘I’m just a lawyer.’
We have always tried to balance that, the theory being the hourly discipline keeps the lights on and every once in awhile if you hit a good plaintiff lick you might do a little better. As I look at it today, that model has worked for us. We have grown the hourly side of the practice into not just a local or regional, but also a national practice. We’ve tried cases in New York, Montana, California and are working for the FDIC. We have kept the hourly work, while the clients have gotten bigger. The scope of our focus has always been on fairly complicated commercial stuff. The coal industry and energy is the core, but it’s grown well beyond that.
Q: Let’s talk a little about your energy and coal practice.
A: The first cases we did were for a new client, Chris Cline, who was then a contract miner in a fight with a company that owned the resources and they were trying to shut him down. Four days before trial, Chris’ lawyers told him they had a conflict. They found their workers comp department had done work for a company on the other side.
Brian and I were brought into the case with a hearing on an injunction set four days from when we were hired. They thought we’d ask for more time – and we didn’t. We walked into court and kicked their asses up one side and down the other.
We’ve represented Chris ever since, and he and Brian are very close. We just took his company, Foresight Energy, public this summer. That’s 12 years since we first started working for him. He was not a big player then and today he’s one of the biggest coal producers in the U.S. and internationally, especially in Australia.
Q: What other types of work have you done for Chris and Foresight?
A: In 2004-2005, he foresaw that a lot of the air regulations the coal industry complained about would create opportunities. He bought some of the biggest coal reserves in the country, mostly in Illinois, which were relatively high in sulfur. And he was exactly right that all the Clean Air Act regulations would cause power companies to put scrubbers on their facilities so the coal would be useable. He bet the farm on that vision and has been very, very successful.
We’ve grown up with him, and do lots of other energy work. But the story of our firm isn’t complete without Chris. We do a lot of his business work all over the country and have seven to eight lawyers who do nothing but transactional work, lots for Chris, but also for others.
Q: What a remarkable client and story. Can you talk about other energy work?
A: At the same time, we were representing the State of West Virginia and its regulators in fights with the Environmental Protection Agency. I did the first big one of those 12 years ago, and have done the most recent one – another round with the coal industry attacking President Obama’s war on coal. West Virginia regulators are in the middle there.
We’re in a coal state, that’s where I learned to first try cases. Just outside my office, we have a team located with mine maps of massive contiguous reserves and coal seams for a fight between two coal producers. It was mined extensively in the ‘40s, ‘50s and maybe the ‘60s, when different technologies came in place and concerns about pollution arose. Virtually all of the mining in Southern Illinois was shuttered until this recent renaissance. It’s cutthroat and a very difficult business to be in in this environment. The reserves there can be mined very efficiently if someone knows what they’re doing.
Q: And what about your criminal defense practice; are you still active in that area?
A: Oh yes. There are four or five of us who have a pretty active criminal docket. Our biggest victory at trial recently was defending a case for David Cline, owner of Rock N Roll Coal Company, in the mountains of Virginia. Tried in Abingdon. The government accused 30 to 40 different people of being engaged in a large conspiracy to use cash for payroll and thereby defraud the government of income taxes. Every single person they accused either pled guilty or was convicted except our client and his son. They indicted David and his son, Josh. They had very few codefendants by the time we got to trial. And both of our clients were acquitted. There is nothing in the law that feels better than a jury saying not guilty.
That case had repercussions throughout the industry and the area. What I am most proud of is that I didn’t try it. I was there, picked the jury and did legal arguments and helped my trial team. But I was jammed in advance of trial, and to try a case you have to know every jot and tittle and I didn’t. Mike Hissam, like me, was a law clerk and a federal prosecutor and is just spectacular. He and Rod Smith worked up the case, divvied up witnesses, and carried the ball. And I explained to the clients they needed the lawyers who knew the case best to carry the ball.
From the standpoint of the guy who started the place, seeing the younger lawyers do as good a job as anyone anywhere could do and bring a big victory home, that was just spectacular.
The thing about criminal work is that so much of it, if you do it right no one ever knows and you can’t talk about it. We have had wonderful success for politicians, businesspeople, friends of friends who came to us early before they were charged and gave us an opportunity to dig in, investigate the case and isolate the strengths and the weaknesses and to make a pitch for the government stepping aside, charging someone else or not charging anyone.
That is really what we do best and I am particularly proud of that.
Q: And what about you, and what you are spending your time on these days?
A: When I look at where I spend my time, one of the fascinating evolutions of it – I know that we thought that I would probably do more of the defense work and Brian would probably do more of the plaintiffs work. As it has evolved, we both still do all of the above. But of late, with the Toyota Unintended Acceleration cases I have been doing, my practice involves more plaintiff work than I ever thought it would.
The strategy may be a little different, the drivers may be a little different, but the day-in, day-out nuts and bolts of preparing a case, knowing witnesses, the law, arranging documents, those are the same things that I learned to do prosecuting fraudulent coal tax shelters. The technology now is much different, and my law firm and others have gone through millions of documents electronically – translating from Japanese and then searching, doing predictive coding and reviewing those that seem pertinent.
The case for the FDIC versus Bank of America, which the Department of Justice is now talking about settling, that case involved even more documents than Toyota. But the work we do is the same. I’m struck by how some of the mechanics and realities have changed, but the process and the theories don’t.
To convict a person of creating a fraudulent coal tax shelter, I had to explain to a jury of ordinary people coal-mining tax laws and intent. And to prepare a case against Toyota for unintended acceleration I had to be able to explain auto electronics software, causes of death and numbers. The job you do as a trial lawyer is translator, taking two or three foreign languages and trying to decipher them in a way that makes sense. If you can’t do that, you don’t have a case.