Buchalter Nemer partner Peter Bertrand encourages lawyers to diversify - not just their stock portfolios, but their practices. Although he is better known for representing banks such as Comerica Bank, Citizens Business Bank and Silicon Valley Bank, the 32-year litigation veteran has been handling a variety of cases that include intellectual property disputes, bankruptcy cases and litigation related to Ponzi schemes.
According to Bertrand, who is eligible for votes on this year's ballot for the Lawdragon 500 and 3000 lists, the ability to learn new industries and technologies on the fly makes the practice of law more interesting and thrilling.
Lawdragon: What's the secret to being able to litigate cases across several practice areas?
Peter Bertrand: From my perspective the keys are: being a quick study; having a strong natural curiosity; not being afraid to ask questions; and understanding key leverage points. One of the things I love best about my practice is that I am always learning new areas. Instead of being pigeonholed into limited practice areas as is common with large firm litigators, I have had one of the most diverse practices of anyone in my firm. This has meant that typically I'll be working on labor, trade secret, lender liability, bankruptcy, real estate and entertainment cases simultaneously.
In order to be effective in learning new areas quickly, one has to have a strong curiosity about how things work and not be afraid to look bad asking lots of questions. Often times, lawyers are afraid to ask their clients questions for fear of looking uninformed or ill prepared. However, if you are going to be effective, you have to put your ego aside and be willing to get down to the nitty gritty to learn the client's business. I remember in one trade secret case I was handling, early on I got to the point where I could diagram complex semiconductor chips which I did during a meeting to explain how I intended to attack the other side's case. When I did so, one of the chief engineers of the client broke into a huge smile because he was amazed that I could learn the technology so quickly.
I also believe that to be effective it is critical to focus on key leverage points early on, to understand each party's motivation in order to create an effective case strategy. Thus while lender liability cases may be different substantively from trade secret or entertainment cases, understanding the parties' dynamics is as important as understanding the substantive law issues.
LD: What's the most interesting case you've handled in your career, and why?
PB: There are actually two. One involved an employee raiding and trade secret theft case where one bank took a statewide team of key employees from my bank client. The "raid" was orchestrated such that all of the defecting employees resigned late on a Friday afternoon and opened up for business the following Monday, literally in some cases across the street from my client. The defectors took confidential trade secret information and confidential customer data from my client and tried to steal a multi-billion dollar segment of my client's business. I got the call on Saturday afternoon while away for the weekend in Tahoe asking whether I could be on a Sunday morning conference call. I cleared conflicts that afternoon and was sitting in a parking lot Sunday morning which was the only place I could get cell reception.
In a period of about 15 minutes I literally outlined my strategy on the back of an envelope which included listing each of the causes of action we would assert, and what type of prejudgment remedies I recommended requesting. On the call I then described to the client what I proposed to do including obtaining expedited discovery, restraining orders, forensic computer exams and the like and had a team waiting in my office Sunday afternoon to prepare the various pleadings. The case was a seven day a week case over the next 15 months, and we were successful in shutting down the competing banking operations and winning virtually every motion we filed before the judge. Ultimately we received a $47 million settlement payment even though my client lost virtually no customers. It was one of those cases where everything went exactly as planned.
LD: What's the other?
PB: My other favorite case was getting my brother John into the 1984 Olympics in the Finn sailing class [The men's solo, single forward mast Olympic sailing competition]. Although the facts are somewhat complicated, the abridged version is that my brother was a victim of another competitor's intentional breaking of the rules to prevent him from getting the lone Finn berth. He had been the World Champion and was U.S. Olympic representative in the Finn class in 1980 when the U.S. boycotted the Moscow Olympics. In order to get my brother John certified by the U.S.O.C., we had to go through a series of arbitrations and court cases, and successfully obtained a mandatory injunction compelling the U.S.O.C. and I.O.C. to certify John.
Thereafter, the U.S.O.C. held an arbitration involving three potential representatives in Denver which commenced at 9 a.m. and continued until 2 a.m. the following morning. The U.S.O.C. had to certify its representative by 9 a.m. California time, so John and the representative of the U.S. Yacht Racing Association caught an early morning flight to Long Beach, and one of my partners and I flew to San Francisco not knowing the result. When we landed we learned that we had won and John earned a silver medal in the Olympics. One of the interesting aspects of that case was we had to learn yachting law and case law pertaining to U.S. Olympic competitors including the administrative procedures for seeking redress and appeal.
LD: Can you talk a little bit about the matters you're currently working on?
PB: In the past year I've obtained approximately $100 million in wins in various matters that I have been handling. This year I just recently won a case against the FDIC involving law firms' abilities to obtain secured claims while representing failed financial institutions. The significance of the case against the FDIC is that given the need for financial institutions to have top legal representation in connection with recovering on their loan portfolios, the FDIC's attempt to prevent lawyers from obtaining liens to secure payment for their services significantly undermines financial institutions' rights and ability to retain competent counsel.
I also successfully knocked out a lender liability case against a financial institution which sought in excess of $50 million in connection with a Ponzi scheme which is currently on appeal. I am also involved in a number of fraud cases involving financial institutions and will be involved in enforcing an approximate $20 million judgment against a Canadian movie producer. Also, I am currently working on a trade libel, trade secrets and unfair business practices case set for trial in the L.A. District Court.
LD: You've been a trial lawyer for more than three decades now. How has trial work changed or has it changed?
PB: With the ability to access information more readily and the technological improvement in search engines and graphics, trials have become more interactive and less static. For example, video taped depositions bring to life witness' testimony and tend to draw the judge and jury's attention more to what is on the screen as opposed to simply reading from a deposition transcript. The use of computer graphics is again another way to make a case come alive. For example, in the employee raiding cases that I have tried, I have been able to demonstrate graphically how the defecting employees essentially duplicated my clients business, right down to the same management structure from one employer to the other.
On the negative side, it appears to me that there is less collegiality and more sharp practice that occurs. I see more and more personal attacks being made on the integrity of counsel and the drive to bill more hours coupled with the ease of propounding discovery simply by pushing a few buttons on a computer tends to cause substantial increase in the cost of litigation to the clients.
LD: What is the most pressing legal issue or development in your clients' minds right now?
PB: Given the diversity of my practice there are a number of significant legal issues in play. In the employee raiding/unfair competition area one of the developing issues has to do with an employee's right to compete versus an employee's fiduciary duty not to harm the interests of their current employer. A number of cases in this area are really focusing on what actions employees can and cannot take in preparation to join a competitor. These issues are particularly significant where management employees are involved, in that their failure to take action to protect against raiding of the current employer's employees conflicts directly with their desire to lure away employees to join a new enterprise.
We also continue to see attempts to erode the Statute of Frauds and Parol Evidence Rule particularly in connection with respect to real property foreclosures. In particular, River Island Cold Storage Inc. v. Fresno-Madera Production Credit Association (2011) 191 Cal.App.4th 611 appears to attempt to pare back the Parol Evidence Rule regarding the introduction of extrinsic evidence to contradict the terms of an integrated writing. For example, the court in River Island held that a party's assertion that they failed to read the terms of an integrated writing was a basis to get around the Parol Evidence Rule, which significantly affects financial institution's ability to rely on the express terms of their written loan agreements.
LD: Any advice to young attorneys thinking of embarking in this field?
PB: My advice is to get to trial as early as possible in your career because it will better enable you to focus on the actual issues which will be ultimately tried. Too often, young lawyers take a shotgun approach with respect to discovery and it is only when trial is imminent that they focus on the critical issues for trial. My recommendation is to create at the beginning of the case a trial notebook which identifies the issues, key documents and the questions to be answered.
I also believe that to be an effective litigator it is critical to understand the parties' motivations. Finding common ground or ways to accommodate opponents' concerns can often be accomplished without your client being required to give up anything significant. By focusing the disputes on the key issues, one can be much more cost effective and earn your client's trust. Also, being pragmatic will save the client a lot of time and money.
LD: What do you do outside of work? Any interesting hobby?
PB: Early in my career I was a workaholic and never took vacations or had time to travel. I now try and create more of a balance by traveling, hiking, exercising and collecting wine as a way to maintain a fresh perspective. Also, being able to compartmentalize work time and leisure time is important for there to be more of a balance in life.