Photo by Josh Ritchie.
Although Ed Moss admits he misses representing plaintiffs (he was good at it), a whole slew of corporations are happy he made the switch to defense-side work permanent. He stands as a titan in the area of products liability and other complex commercial cases nationally, and is one of the most admired litigators in the state of Florida, where he has practiced his entire career.
The Shook Hardy & Bacon partner has emerged as a popular figure while representing some pretty unpopular clients. Perhaps most famously, Moss has defended Brown & Williamson in major tobacco litigation, including the class action brought by flight attendants over second-hand smoke, which went through months of trial before ending in a landmark settlement. Other clients have included Texaco, Hartford Insurance, Boeing, Westinghouse, Home Depot and American Home Products, among many others.
Lawdragon: How did you become interested in going into law?
Ed Moss: It was kind of an amorphous situation. My dad was not a lawyer but a number of his friends were, and some were judges. Generally, I remember that all of them impressed me as a kid. They were people I looked up to and believed I would like to emulate. That’s where going to law school began.
LD: What about becoming a trial lawyer as opposed to another type of practice?
EM: That resulted from the first job offer I had, at a small insurance defense firm. Obviously, when I was admitted to the bar things were different in terms of getting your feet wet at trial. One thing led to another and I was basically a young lawyer involved in representing insurance companies in all kinds of cases. In the first year, I ended up trying a case because one of the partners in our firm, for some reason, went AWOL, just as the case was set for trial. That was an education in and of itself because the plaintiffs’ lawyers on the other side were really major league, the biggest we had in Florida and with national reputations. Here I was in my first or second year in practice trying a case against them. [The case settled after jury selection.] By then, I was hooked and knew this was what I wanted to do. There was a tremendous amount of excitement, tension and pressure.
LD: You then did well with plaintiffs’-side work. How did you come to move to defending cases?
EM: We were quite successful [at the plaintiffs’ firm], we had a very vigorous practice with some very impressive results. When I decided to leave and start what became Anderson & Moss, our goal was to fill a niche. We knew that, at that time, there were not an abundance of lawyers in South Florida who had real trial experience and who really tried complex commercial cases. Senior partners at large firms were responsible for those types of cases and clients, and Miami-Dade County was not heavy on that type of trial lawyer. We thought that this could be a void we could fill, and it worked. Anderson & Moss began with a fair number of plaintiffs’ cases and it continued that way for a while, but the plaintiffs’ cases kind of dropped off. More and more clients called on us to defend cases and other personal injury and complex commercial matters. By the time we merged into Shook Hardy, we weren’t doing any plaintiffs’ work to speak of.
LD: Do you miss the plaintiffs’ practice?
EM: To this day, there are some things about plaintiffs’ work that, if you’ve done it and done it reasonably well, there has to be something wrong with you if you don’t miss it. A lot of the practice involves getting good results or verdicts for some very nice people – that part of it, sure, I miss. But I’ve become known as a defense lawyer, and there’s nothing wrong with that. I enjoy what I do.
LD: Did some clients want to hire you because you had worked on the other side?
EM: I think initially, for sure, there were some clients with in-house counsel who did feel that way: “Why don’t we hire somebody who knows the other side inside and out? If not giving us an even playing field, it might at least give us an advantage we didn’t have.” A number of clients expressed that sentiment. They don’t much anymore.
LD: What’s different about trial work now? What have you noticed changing over the years?
EM: Jurors are much better informed than when I began. The amount of publicly available information and the manner and means by which people are becoming informed are much different. When you walk into a courtroom and represent a chemical or oil company, or a tobacco company, jurors unquestionably arrive with some pretty strong opinions. Hopefully those opinions are not fixed, but sometimes they are. Over time that’s become a much more difficult situation. You must deal with it upfront, in voir dire. You can’t go in there with your head in the sand; you have to face it head on. Except for some pure commercial cases, most of the cases that I now handle involve serious claims of personal injury, or are class actions or mass torts.
LD: What is a key ingredient to defending clients that may be unpopular, when the plaintiffs’ experience will almost surely be grounds for some sympathy?
EM: Well, first of all, you need the ability to talk and reason with people. With jurors, your task as a lawyer is for them to at least be impressed that you are someone who will give us a straight story. You’re talking about a feeling of trust. That is an essential element that some lawyers can engender, and others do not. If you can’t command that type of reaction from jurors, then this is not the profession you ought to be in; at least, you shouldn’t be trying cases.
LD: What do you think is the toughest or most challenging case of your career?
EM: My very toughest case I can’t talk about, because the client would not appreciate it. But another memorable one was years ago, when I was hired to become one of the lead counsel in defending the 1986 San Juan Dupont Plaza fire. There were 108 deaths and hundreds of horrible injuries. The case was tried in federal court in San Juan, Puerto Rico. The trial went on pretty much for a year and was interrupted by a huge hurricane – Hugo. For those of us who stayed the course in San Juan, the amazing thing was that the jurors never missed a day. When they were supposed to come back after the hurricane, they came back. That is a monumental case in my memory, spending two-and-a-half years in San Juan – a year and a half in San Juan preparing and another year trying the case.
To say that the hotel was grossly underinsured doesn’t capture it – it had only a million dollars in coverage. So obviously the plaintiffs had to find other defendants and sued anyone with any product in the hotel, from people who made the floor coverings, the wall coverings and the makers of the slot machines because they had wooden cabinets.
LD: How did you ending up joining Shook Hardy?
EM: I knew some of the lawyers at Shook for many years by being involved in different professional associations. And when the flight attendants second-hand smoke case was set to go to trial, David Hardy came down and represented Phillip Morris, while I represented Brown & Williamson. David and I became good friends. I admired his trial skills, and he must have thought I had some. When the case ended and before David left Miami, he asked me if I ever thought about our firms merging. I said no. He said, “Think about it, I’ll be calling you.” He did and we merged.
LD: But you’ve always stayed in the same area. Were you never tempted to move?
EM: I was born here, and have always been a resident. My dad moved here some time in 1933-34. I’ve seen a lot of changes, many of them for the better, some for the worse. I’ve had offers that would have taken me elsewhere, but I truly like the lifestyle Miami provides. I really like Miami, and it’s always had an outstanding trial bar. That’s one of the things that always kept me here and intrigued me, and we continue to have a very accomplished and fine trial bar.
LD: What about doing something else outside the law?
EM: Well, now I enjoy watching my sons, one who is a plaintiffs attorney practicing with one of my oldest friends and one who just joined our firm. I still enjoy coming into the office, I’m still invigorated by a new case and helping some of the other younger partners get a case ready for trial. I still have a great interest in, and get great enjoyment from, the law. I don’t think there is anything else I could do that would be more interesting, invigorating or challenging.