Photo by Jeffrey Luke.
Raised in Austin, he clerked for Justice William Rehnquist, and lives on eight acres in Bainbridge Island. He takes the ferry to work. He’s tried four cases in the past year, all patent matters. He notched one of his first patent successes for TwoWay Media, one of the first streaming radio services, in a case against AOL and in 2013 won a verdict for the company against AT&T, resulting in a $40 million judgment that was upheld by the Federal Circuit in 2015.
More recently, he went home to Texas and tried his first case in Marshall, winning $32.5M for DataQuill against ZTE over use of its patents in smart-phone technology. And then there’s the $536M settlement with Microsoft – including an $88M contingency fee – he won for Novell without ever filing a lawsuit.
Look a little closer, and you also see the grace of someone who sees fortune in what others consider adversity. That generosity of spirit has won over juries, colleagues and judges to the tunes of billions and made Folse one of the most elite and accomplished partners at the very, very elite and accomplished Susman Godfrey.
Lawdragon: Tell me about your upbringing, how you came to be a lawyer?
Parker Folse: There weren’t any lawyers in my family. I think what put the idea in my head was my mother, Marlee Baker, who was a remarkable person. She and my father were divorced when I was six.
She raised me and my brother, Gabriel, as a single mother in Austin and she worked the whole time. She’d gotten her degree in music, so for a while she taught music and was a solo pianist for the Austin symphony. She also worked in the Texas legislature for a long time, including a stint as Barbara Jordan’s first secretary when she was first elected to the Texas Legislature. For a time she was a real estate broker and there was also a stretch where she was a columnist for the Austin American-Statesman. She always had tremendous ambitions for us.
We moved back and forth between apartments, when she could afford it, and living with her parents when she couldn’t. My grandfather was a retired school superintendent who also sold schoolbooks around the state. He was the closest thing to a father figure I had while growing up.
My mother, by the way, went to University of Texas Law School at 49; she started the year I graduated. She practiced as a criminal defense lawyer.
LD: You clerked for 9th Circuit Judge Joseph Sneed, and then U.S. Supreme Court Justice William Rehnquist. What was that like?
PF: It was great. Judge Sneed grew up in West Texas, and had been assistant dean at UT Law School. He was a conservative Republican, and Carly Fiorina is his daughter.
There’s no way this could have gotten mapped out – a left-of-center Democrat like me hired by a conservative Republican on the 9th Circuit. Judge Sneed had a habit of hiring a clerk from the University of Texas Law School each year, and had one of his first clerks who lived in Austin do his interviewing at UT. I had a good record in law school, and I guess I made a decent impression. No one talked about my politics.
I applied to many Supreme Court justices, and I guess Justice Rehnquist was interested in seeing me because I clerked for Judge Sneed. He also never asked me during the interview about political beliefs; he asked me questions about growing up, what areas of law I found interesting, trying to get a sense of what kind of person I was. Throughout his entire time on the bench, he was always interested in hiring clerks from a diverse range of law schools and really believed the top people at any law school were fungible. He wanted people who felt it would be special to clerk at the Court. I think that helped me too.
LD: Did you enjoy your time clerking for Rehnquist?
PF: Absolutely. I disagreed with a lot of his judicial philosophies, but really admired him as a person. As with Judge Sneed, I felt they were my clients, I was their lawyer, and my job was to do the best I could for them. Nobody appointed me to the Supreme Court, so my job was to carry out their wishes as best I could. It wound up opening all sorts of doors, even to this day.
For example, one of my co-clerks for Justice Rehnquist, federal district judge David Campbell in Phoenix, was the chair of the federal Advisory Committee on Civil Rules and he recommended that I be considered for appointment to the committee as one of the members from private practice. And I was then appointed in 2012, and re-appointed last year, by Chief Justice Roberts, who was a Rehnquist clerk the year before Judge Campbell and I started the job. He stuck around to help train us for a few weeks that summer. That probably never would have happened but for this sequence of events that began with Judge Sneed.
LD: Any personal memories of Justice Rehnquist?
PF: Many. I’ll never forget the day, Jan. 13, 1982, when an Air Florida plane crashed into the 14th Street Bridge on the Potomac taking off from National Airport. Lots of people went into the water and died. It shut down traffic and the bridge across the Potomac that Justice Rehnquist used to get home. So he had his driver turn around and take him back to the court.
I lived in a little studio apartment right across the street from the back of the Supreme Court building. I went in the next morning and found the Boss sitting in his office looking haggard and drinking cranberry juice and eating an Oreo cookie. He looked like he hadn’t shaved or slept much. He explained he had to spend the night at the court – there was a room in the upper floors of the court with a cot.
He was a very formal person, very personally shy in some ways. So with some trepidation I said, if you like, I would like to invite you over to my apartment and I’ll fix you breakfast. I made him bacon and eggs in my crappy little kitchen.
LD: That’s an amazing story. Any other thoughts about him?
PF: He was super smart and had an incredible memory. We’d be sitting in his office talking about a case and he’d think of some Supreme Court decision that was relevant, stand up and walk over and pull the volume off the wall. He would know what volume of the reporters it was in.
He also had a realpolitik view of the law, and as much as anything else, that’s something I took away from my year at the Court, shedding some of the unrealistically idealistic perspectives you get in law school about judges and the methods of constitutional and statutory intrepretation. I suppose it came home to me that the law is made by human beings who are political creatures, whether they are judges or legislators. There is not really some inherent truth about what this statute or constitutional provision means, independent of who is interpreting it. It’s going to depend on those interpreting it and what shaped their lives up to that point. Some people get very cynical in how they view that reality. I don’t think of myself as a cynic, but that was something that hadn’t dawned on me to the extent it did that year – the recognition that these are all flesh-and-blood people at the heart of the judicial process.
LD: Sounds like you learned a pretty valuable lesson for your career as a trial lawyer.
PF: There are definitely differences between persuading a jury in a trial and persuading a judge, but there’s also an awful lot in common. Judges are above and perhaps even jaded about some forms of persuasion, but they’re still human beings. I think a lot of judges start out in making a decision with some sort of view about what’s fair or unfair and the equities of the situation, and sometimes that has nothing to do with the law. Lawyers who are blind to that in the way they write briefs or argue are making a mistake.
That’s what litigators and trial lawyers do. You have the interest of your client that you’re supposed to protect and advance consistent with ethics and morals, and you always have to take what you have to work with and make the best out of it. And you have to do that in a way that’s credible.
That’s doubly true in trials. Juries are very good at smelling phonies, and their attitude about lawyers, I suspect, is to be suspicious from the outset. They know that you are an advocate for your client, so they’re going to take everything you say with a grain of salt. If you stack on top of that some layer of pretense, saying things you don’t believe or trying to be someone you’re not, that makes it worse. The key is to find something that makes you feel passionately about your case, your position, your client, and let that come out. But it has to be genuine.
LD: That’s an interesting balance at Susman Godfrey, where the model is to bet on your client’s case. Let’s talk about that a bit.
PF: The first stories you hear when you’re meeting with a potential client are usually a gilding of the lily – particularly when someone is talking with us about a potential contingent fee engagement. They want us, or someone like us. They need a lawyer they don’t have to pay because they can’t in many instances, so it’s a bit of a sales job. That takes a little time to figure out.
Every lawyer at our firm eventually learns this. You have to cross-examine people who are trying to hire you, examine documents, dig as hard as you can to separate what’s true from what’s wishful thinking about the potential case being presented to us. It’s inevitable over the course of discovery that things you didn’t know are going to come out. Sometimes they dramatically change the picture of the case you had in your head. Sometimes it makes hard cases better and sometimes it does the opposite.
I think about the way a case would be tried, beginning early on. I kind of can’t help it. In a nutshell what I hope for is an appealing story that people off the street might care about, in addition to a case that has legal merit.
LD: How do you get people to care about big dollars in patent infringement?
PF: It’s true that our practice is basically about money, at a very cynical level. We’re not trying to keep people out of jail, or dealing with custody of children. If you deal with juries in our cases, for them it’s just exactly that question: Am I going to award money to this person or not? And for us, the question is how do you get them to care about it? And they do have to care about it.
You have to pull at someone’s sense of fairness and convince them they are righting a wrong. That’s not to say we’re ever going to get a jury verdict just because they think this is a fair result. I think juries try to pay attention to legal instructions, but it’s a lot better if you can get a jury to really care about what they’re doing consistent with the evidence and the law.
LD: Tell me how you won an $88M contingency fee without filing a lawsuit.
PF: That’s another “being in the right place at the right time, charmed life” story. During the time of the Justice Department’s first antitrust investigation against Microsoft, I was hired by a number of software companies who had antitrust claims against Microsoft. The first one was Caldera, who then owned the rights to DR-DOS software. We settled the suit for a confidential number (which the press reported as $275M), and so other companies hired us to pursue their claims.
Caldera was owned by Ray Noorda, who founded Novell. When the European Union’s antitrust authority later began a second investigation of Microsoft for restraining trade in the market for server operating systems, Novell was involved in that, and they hired us to pursue claims against Microsoft in the U.S. I contacted people at Microsoft and asked if they’d be interested in talking. Through a series of private meetings, we basically went through a paper trial over the course of a year until we got down to exchanging numbers. Then we got a mediator involved and eventually reached a settlement. At the beginning, I could never have predicted we would have settled without filing suit at anything close to the $536M we got. It kind of hit people at my firm out of the blue. It was fun sending emails to my partners the night that it happened. I still have all their replies.
LD: Was the move to Seattle a calculation by you and Susman Godfrey based on the technology business that has flourished here?
PF: Not at all. Moving here was crazy. We had no business here, no business plan to be here. It was purely the result of my wife and I having a great vacation here. Our kids were five and nine, and we thought it would be good for them to go to school on Bainbridge Island. And I think we both wanted to shake things up in our lives. I didn’t want to get away from the firm or Houston, it was just the unexpected attraction of Seattle and living on Bainbridge Island.
Steve Susman and Lee Godfrey have always been big supporters of me professionally and personally. They were the ones who said, “Why don’t you stay with the firm and we’ll open an office there and see how it goes?”
LD: So what happened?
PF: In 1995 I subleased an office at the end of the hallway in another firm, hired a secretary who became my office manager, and we’ve grown basically by a lawyer a year for 20 years.
We had no clients and almost no legal contacts in this region, but we got very lucky. Steve Susman had been approached about joining a plaintiff class action in Alaska on behalf of salmon fishermen in Bristol Bay who were alleging that seafood processors who bought from the fishermen conspired to reduce the price they were paid. Initially, Steve said Alaska was too far from Houston to interest him, but when I moved here, they contacted him again and we got into the case.
It went on for about six years before we tried it for four months in Alaska — and lost. But before we lost, we got about $50M in settlements. And as a result of that case, I got to know in short order most of the commercial trial lawyers of note in Seattle, because the seafood processors all hired them. One of them, my friend Ralph Palumbo of Summit Law Group, asked me to get into the Caldera case with him, and that led to the Novell case.
You couldn’t have predicted any of this. There are all sorts of links in that chain which began with our vacation to Seattle that could have snapped and turned out terrible, but it didn’t. My life is great, my wife Carol and my kids, Alexis and Connor, love it here. And now my son is in law school at University of Texas.