Photo by Josh Ritchie.
Mr. Miami has done it all and seen it all. The young man who grew up in the Catskills where his parents repaired mattresses found his way to the University of Michigan, where he played basketball and won the heart of Dorothy, who had grown up in the Sunshine State.
After law school in New York and a stint in the military, the couple returned to Miami. They’ve never looked back. After a position at a standout local firm, Aaron Podhurst opened the doors of Podhurst Orseck, with Bobby Orseck, in 1967. Just five years later, he was appointed lead counsel for litigation over the crash of Eastern Airlines Flight 401, which crashed in the Florida Everglades on Dec. 29, 1972, killing 101.
That starring role led to many others. His firm is one of the standout aviation litigation practices in the world, which, increasingly, is the locale of air crash cases given the globalization of the practice. He’s also had the opportunity to counsel leaders at the highest levels, including serving as the unofficial mediator in the tense standoff over Elian Gonzalez, the young boy whose mother drowned in November 1999 as she attempted to escape Cuba and take Elian to Florida in a small aluminum boat.
We were lucky to get some time with Podhurst in his Miami office, where he talked about Miami, his philosophy on life and the law and some previously untold stories about the Elian Gonzalez case and the settlement of a crash from Fort Rucker, Alabama, straight out of “A Few Good Men.”
Lawdragon: Thanks so much for taking the time to meet with us. I’d love to hear a little bit more about your background.
Aaron Podhurst: I grew up in the Catskill Mountains of New York State. I was a little boy and worked in the hotels during the summer and in high school.
Then, believe it or not, I got a basketball scholarship to the University of Michigan. And that was my first time away from home. My folks renovated mattresses for the hotels. We always had food, but we were relatively poor and so this was a great opportunity to go to college. I had very good grades. And so the basketball scholarship got me to the University of Michigan. I have two older brothers and I was the first of my family to go to college.
LD: It’s a long ways from the Catskills to Michigan to Miami.
AP: While I was a senior at the University of Michigan, I met my wife, Dorothy, who was a freshman. She was from Miami Beach, and that’s the reason I’m down here. I went to Columbia Law School and then we ended up down here.
I thought it would be easier to raise a family in Miami than it would be in New York City. So she actually was not the pusher, I was, and I’ve loved it being down here. After law school, I was in the service and then came to Miami. I didn’t know anybody. I worked for an appellate judge for one year as a clerk, and then I went to a very well-known firm started by a guy named Perry Nichols, who was like the father of demonstrative evidence. I actually learned how to try cases as a young associate with him.
LD: What was your first case?
AP: It was a case I picked up one week after I got to the firm; someone dumped it on me, to be honest with you, and it was the case of an 80-some-year old man, who was a diabetic, and lost his leg when he tripped over a bumper in the city of Miami Shores. It was a very difficult case. You had to prove the city of Miami Shores had notice about the defective bumpers. And so we got an expert who took the reinforcement bars and said it had taken months and months for the bars to get to [a defective] stage. That was the “notice,” or at least that was what was presented to the jury. I didn’t know anything about trying a lawsuit or presenting a witness. It was amazing because the man was a sweetheart and we won him a great verdict.
LD: Congratulations. What a way to start.
AP: It was interesting how much the jury liked him. It taught me a lot about how important the plaintiff is in any lawsuit. The plaintiff is the most important person. This man was honest, was humble. When the insurance company lawyers cross examined him he admitted everything. They’d say, “Well, you should have seen it,” and he says, “Yeah, I guess I should have seen it.” He was that kind of a plaintiff and the jury just ate him up alive. You learn every time you pick a jury and every time you try a case. I tried many cases there before we started our own firm in 1967.
LD: What led you to start your own firm?
AP: The Nichols firm basically was splitting up because the then-senior partner, Perry Nichols, wanted to go practice with his son. And so it was an opportunity to start my own firm with the fellow who was the appellate lawyer for the firm, Bob Orseck. Bob tragically drowned in Israel in 1978, but he and I were very close friends and it’s been a great ride.
LD: Were you scared when you went out on your own?
AP: Yes, I was very scared when we opened our own firm. We didn’t have two pennies to put together. We got some business in the dissolution of the old firm. And Bob did some appellate work for them as they were dissolving. And then one thing led to another and we developed business until he died. We were together 11 years. And the firm has done very well.
We have sort of a specialty in aviation work, plaintiffs’ aviation work, in addition to many other things. So in 1972 was the crash of the first wide-bodied jet, an L1011 aircraft in the Everglades, Eastern 401. I got one case, and I’d never really been involved in aviation particularly. There were many cases, several hundred on that crash; one-third of those on the plane walked away, one-third were killed and one-third seriously injured. And all of the big-shot plaintiffs lawyers had cases, they all came down before U.S. District Judge Peter Fey, who’s now a retired senior 11th circuit appeals judge.
All of these big lawyers were vying to be the chairman of the plaintiffs’ executive committee, the lead counsel. And they’re all fighting - all these guys with reputations from all over the country - and he listened and he listened, and my application was just to be on the committee. I didn’t have the daring to even ask him as a young lawyer to be the lead.
And he says, “You know, we’re in Miami, I think I’m going to appoint Mr. Podhurst as the lead counsel.” To make a long story short, that was my breakthrough, because of that judge. From there, I got other cases, and on and on. Everybody gets a break along the way and that was mine. The entire case was handled within a year, which was unheard of, for multidistrict litigation, and it was a successful result for our clients.
LD: What did you learn from that case?
AP: I learned that one of my strengths, trying to not be immodest, was people. And to be chairman, any type of leadership or executive role, so much of it is getting people to work together. That’s what the court requires, that’s what the judge wants, and of course the plaintiff lawyers notably have large egos. So I learned by trying to be a good people person: be reasonable, have a little humility. And to deal with the different personalities is a very important part of doing that kind of work. And it’s really served me in good stead because, you know, some people just like to fight. And that’s not good, the judge doesn’t like that; it just holds things up.
I have a philosophy, which not everyone would agree with, which is not to burn any bridges. So even when you’ve been in a war, shake hands and move on. You never know when that will serve you well. I personally think it’s a good philosophy; others think it’s not that good. But it’s always served me well.
LD: Aviation law has changed so much since 1972. Can you explain why?
AP: Forum non conveniens is a great problem for plaintiffs’ lawyers and so many cases cannot be kept in the U.S. because of it. Because our firm has done so much aviation work, we’ve gotten a bigger share of a smaller pie. We now handle cases you can’t keep in the United States. People want the expertise and we get along well with Lloyds of London.
LD: Explain forum non conveniens to me and how that plays out in an international aviation case these days.
AP: Well, let’s talk about a recent crash that’s just been settled. An airline, Aires, suffered a crash in Colombia and many people were killed or hurt. The aircraft had very few Americans on it, most of the passengers were Colombians and from other countries.
Now while Aires had a place of business for service in Florida, the flight was an intra-Colombian flight. When I first started, you’d be able to keep that case in the United States because you had jurisdiction, service, and a couple of American victims. We attempted to do that even today and filed here. The insurance company was not sure if this was the proper jurisdiction – because you’re never sure. A lot of the medical damages work was done in Jackson Memorial Hospital here because the medical was not as good in Colombia. So while we faced a probable loss of forum non conveniens, it wasn’t assured. And our efforts to keep the case in Florida increased what we call our opportunity to get “Mid Atlantic prices” – meaning American rates are better, foreign jurisdictions being less.
LD: So by fighting to keep the case in the U.S., even if you ultimately lose jurisdiction, you are able to win higher settlement rates?
AP: That’s right. It’s very, very complicated with venue issues. If we’d have won the forum non conveniens on appeal and kept the cases in the U.S., the settlement would have been higher; if we lost, it would have been much lower. We had a number of cases of the Air France plane that crashed in Brazil. We eventually lost the forum non conveniens on the foreigners, but kept the American victims here and were able to settle those too. It’s a constant battle of forum non conveniens today, as opposed to a crash that occurs in the U.S., of which there fortunately aren’t too many more.
A lot of the battle is jurisdiction issues, which go to value. Since no one is sure who will lose or win, you increase your chances for a higher settlement during the jurisdictional battles. Also, some of the foreign jurisdictions are becoming better places for plaintiffs. Some of the verdicts, which used to be horrible in England or wherever, aren’t so bad anymore. So your difference, your low and your high, are closer than where they used to be. Most lawyers won’t handle these cases because it’s too complicated, too expensive, too risky, a big investment of money and time.
LD: Is there a particular case of which you’re most proud?
AP: The case that I’m most proud of in the world was a pro bono case. It’s funny. We took that case when we were not successful. A few years after Bobby and I started our firm, we were asked to get involved in a case for an Italian couple living in New York. They had adopted a little girl under New York procedure, and the New York statute required six months to pass before the unwed mother giving up the child could officially consent. She was a young girl from Colombia, and as luck would have it, Murphy’s law, the adoption agency lost the address of the adopting couple who had the child. And the birth mother came in a day or two before the six months and said “I want my child back,” which was automatic under New York law. But because they lost the address, the state agency didn’t contact the adopting family.
Well, you’re smart enough to figure out what happens when the child gets along with the only parents she’s ever known and the psychological impact not only on the child but the adopting parents. By the time they found the adopting parents, over a year had gone by. The adopting parents fought for the child in court, but lost in the general jurisdiction court in New York, lost in the court of appeals, lost in the appellate division of New York, and lost in the Appeals Court, which is the state Supreme Court. At that point, almost two years had gone by, so they petitioned the U.S. Supreme Court for certiorari, which was denied. But instead of turning over the child, the couple took her to Florida, so now they’re basically felons.
LD: How did you get the case?
AP: Another firm asked us to get involved and we did. We had to contend with the full faith and credit clause in the U.S., constitution, which means Florida had to give full faith and credit to the decision of the New York courts. So Bobby, who was an appellate genius, starts doing his research, and he determines there are two instances – only two in Florida law - where we have a chance for the adoptive parents to keep the child. One is where something is not in the best interests of a minor, the other being where it’s immoral, or a criminal act. Other than that, you’ve got to give full faith and credit to the court of another jurisdiction.
We hired a Yale psychologist who came up with a lot of testimony and the belief that it would be very injurious to the child at this point to say she had to go to someone else. So we developed that argument. And there were very strong lawyers on the other side. The circuit judge here ruled with us that we didn’t have to turn over the child – that it was in the best interest of the child and so within Florida’s exception to full faith and credit where a child will be injured, the minor has to be protected.
That decision was appealed to the appellate court, where we won in a 2-1 decision; appealed to the Supreme Court of Florida, which affirmed 5-2. The birth mother’s lawyers then took cert to the U.S. Supreme Court, which denied cert again. So we won. I would get a card every year from the mother, thanking me for all we had done. She just died. But the case is called in re Baby Lenore.
You know, you feel good because you gave something back. It’s a sad case either way. But I feel better about that than all the fees and whatever because you did something for the profession.
LD: Can you tell me about some of the cases your firm is working on now?
AP: We’re doing a lot of the NFL cases; Steve Marks, my partner, is on the plaintiffs’ executive committee. We’re on the drywall cases with Herman Herman, I’m spending a lot of time as co-lead of the Bank overdraft case. We’ve made some good headway on that, settling with Bank of America for $410M and Citizens Bank for $137.5M. You feel good about that because it’s so wrong the way the banks have piled up fees on people. The legal issues, arbitration and preemption, it’s in the contract, but nobody reads the contract.
LD: Where did you form your philosophy that being a successful person and professional requires involvement in the community, giving back in a range of ways?
AP: I was encouraged by Walter Beckham, who left the old Nichols firm in 1967 to teach at the University of Miami Law School. I worked with him as a young associate. He was a terrific man and he had a philosophy that being a good lawyer was 90 percent perspiration and 10 percent inspiration. You needed to know the facts and you needed to know the law. He also thought that your reputation is the most important thing you have and – like a restaurant, where you’re only as good as your last meal - you’re only as good as your last deed. So you need to be as tough as you’re going to be, you need to be honorable, and your word needs to be your bond. That’s served me personally very well.
The third thing he taught me which I thought was extremely helpful is to try to get along with as many people as possible. You need to stand up for your rights, you can’t let someone run over you – none of us are allowed that - but you need to not burn your bridges and to try to be a good person. I have found that if you have a good reputation and you try to do the right thing most of the time, you get the benefit of the small little bit of discretion from courts, other lawyers. Lawyers who someone calls you up and says, “My sister is getting married, I want to put off the deposition for two weeks,” and these lawyers say “no,” to me they’re jerks, absolutely jerks. A judge is going to allow it anyway, so why would you say no?
I’ve also developed my own lessons, which I try to teach it to the younger people in this office. If you have doubts about something you’re doing, you’re not sure it’s ethical, or forget the word ethical even, if you’re not sure it’s best practice, don’t do it. If you have to think about it don’t do it. Because that means something about it is bothering you. And if you don’t know something, ask someone else. That’s a good thing to learn in life.
LD: Your clarity that there’s a right and a wrong way to do things is striking.
AP: I can’t think of an exception, I’m sure there has been one in my career, but if I say my grandson is graduating from seventh grade and it’s not convenient, the other attorneys always accommodate me and I always accommodate them and nothing changes in the case. You just have to do the right thing to be treated properly. If it’s something that putting it off is going to hurt their client, that’s different. There’s a right way and a wrong way for almost everything. I’m old fashioned, I know.
The other thing I learned from the old firm was as a young lawyer to get involved in the community. And I enjoyed it or I wouldn’t have done it. I have been involved in bar associations, and have served as president of organizations. I’m Jewish, so I was the head of the Greater Miami Jewish Federation for many years; even today I’m on the executive board of the University of Miami, and the hospital. I’ve been on the board of directors of Community Partnership for the Homeless, chairman of board of the Miami Art Museum. All of those kinds of things - and it sounds goody two shoes - you really learn about how lucky you are and how tough it is for the average person in the world when you see people without food, people without shelter, see people suffering.
And like the art museum, one of the reasons I got involved is there’s no extra money anymore for teaching culture in the public schools. Now you can give kids the opportunity with private-public partnerships to teach arts, so you can pay for the busses and get the 5th graders and take them to the science museum and the art museum and teach them about culture.
The homeless effort has been a tremendous success over 10 years, taking them off the streets, giving them six months of shelter, a place to retrain, retool for employment. So many of the homeless are people who have psychological or emotional problems, they’re not ne’er do wells. I also think, and this is not the reason to do it, but it’s good for business because when you do these things, you meet a lot of people. Assuming you’re a good lawyer, people would rather go to good people rather than not good people, all things being equal. And I try to get younger people to do that.
LD: Tell me about your family?
AP: We have three daughters, eight grandchildren. One daughter lives in Boca Raton with a boy and a girl; another daughter lives in Miami with two boys and a girl, and my youngest daughter lives in Dallas with three boys. We’ve been blessed. We get together all the time. We have a summer home in Aspen for 31 years, and live there in the summer.
LD: Where do you live in Miami?
AP: In Coral Gables, just south of Coconut Grove. We used to live in a place out in the Northwest called Miami Lakes. My fame was my next door neighbor for 31 years was Don Shula. The first person I met in Florida when I moved down, whose family actually developed Miami Lakes, was Bob Graham, the Senator and Governor, so they’re both very close friends of mine. We raised our family in Miami Lakes. After the kids were grown, Dorothy and I decided to move into a condo, it’s an easier life.
LD: I know you and Dorothy have traveled many times to Israel in delegations to enhance understanding and ties to that country, and you’ve worked extensively with the Cuban American community. Why do you think it’s so important to forge these ties?
AP: If people would talk to each other more, the world would be better. If Republicans and Democrats would talk to each other, the country would be better. I watch and sit in amazement at how absolutely nonfunctional Congress has become. It shocks me. When Bob Graham left the Senate, I asked him why he didn’t run again after serving for 16 years. You know what he said to me? ‘It’s not fun. We don’t talk to each other’.
LD: Are there other favorite war stories you can share? You’ve seen so much in your years of practice, with high-profile aviation crashes and Elian Gonzalez.
AP: Well, part of what’s fun about being a trial lawyer is you can help people. And you’re right, I do think I should write a book some day about some of the serendipitous things I’ve seen.
I remember one case, I represented three widows and the children out of a crash of a Bell helicopter during the Vietnam war, who died at Fort Rucker, Alabama. I can tell the story now because the statute of limitations has run. We were suing the manufacturer of the helicopter. And of course there’s a close relationship between the military contractors, like the helicopter manufacturer, and the government. The crash occurred, and there was a unit investigation at Fort. Rucker. We tried to get the results of the service investigation and they wouldn’t tell us anything. So we went to court, demanded to know the facts. And we lost. We lost in the district court, went to the circuit court of appeals in Washington, D.C. We lost, we lost, we lost and we couldn’t get anything.
So we were in a bad position as the case was coming to trial. We knew something happened because soon after the crash they grounded all the helicopters in Vietnam, the HU1A. I went back to Fort Rucker for one last set of depositions. I’d been there before, none of the people would answer. I was taking the deposition of the head of the unit wide investigation, who I’d taken before, and he wouldn’t answer the first time. And I was taking his deposition again, and again he was instructed not to answer.
I was really on my last leg and I went to the john. I was at the urinal, when the door swings open, and a man’s voice says, “Don’t turn around.” I knew the voice immediately. And I hear, “The crash was caused by the cutter pin being manufactured 5/8 of an inch too small. Don’t turn around. Figure it out.”
And then he left.
LD: That’s unbelievable. And you knew who he was?
AP: Oh yes. He was the head of the commission, a very close friend of the deceased. He could have been court martialed for what he did, and he just couldn’t stand that the wives and the kids were going to lose because of this nonsense that this was a military secret. They had a batch of pins that were mismanufactured and that had caused this crash, but they classified it as a secret so no one would ever know.
So you talk about things that happen in life. Once you know what happened, you send a set of interrogatories to the manufacturer, and tell the judge you’ve found information. They say, “How did you find this out,” and I say, “It’s none of your business!” But now they know you know and the case settles. I laugh every time I think of this guy, he just couldn’t stand it anymore. He couldn’t live with it and he could have been court martialed.
LD: That’s an amazing story. Any others come to mind?
AP: There are also the tragedies. In the 1972 L-1011 Eastern case I mentioned before, I got a bunch after I got appointed lead. And I remember, I represented a woman who was an in-flight stewardess, like a hostess.
The plane took off from JFK in New York on a Friday night right before New Year’s Eve. And the landing light that showed whether the gear were down failed – they had put it in wrong. There was nothing wrong with the aircraft, the government wasn’t paying attention and they just pancaked into the Everglades. The crew was at fault, the FAA was at fault because - as they saw it going down, instead of saying how are you doing out there, they were supposed to say verify your altitude.
But that night at JFK, at the last minute just before the doors closed, two of Eastern’s very best customers, Mr. and Mrs. Goldberg, came on the plane. When he walked on, there were only two seats left in the back of the plane. And the in-flight representative said “I have a seat in first class.” She insisted they take her first-class seat as well as another one that was still empty. “I’ll sit where yours are,” she insisted. So she takes the seat in the back. And, P.S. they both die and she lives.
The flight attendant was physically hurt a little, but her emotional trauma was so severe. Why did I live and they die, she kept asking? And there are no reasons.
All of these things in a 50-year career, you say to yourself, life is so interesting. You get a feel for things that are not explainable. If you’re a religious person, even then you can’t explain it. Why would you kill Mr. and Mrs. Goldberg?
LD: I know you were also involved in the custody battle over Elian Gonzalez. How did that happen?
AP: I got a call from Janet Reno, asking would I try to bring the community together so we can have him voluntarily turned over. She had an order requiring him to be turned over. At that time, the anti-Castro fever was even worse than it is now. So I got two of my Cuban American buddies, the president of University of Miami and the four of us formed a little committee. She called me because I was the mediatory type and we got the entire Cuban American community to agree we would work together to move the boy to a neutral place. They were all very devout Catholics, so we put him with a well-known nun, Sister Jeanne [Barry University President Sister Jeanne O’Laughlin], and got Chesterfield Smith, president of the ABA to help set up a neutral house. That way we would let the court’s proceedings take their due and whatever the court ruled, we would take it and there would be no violence. We worked hard and got it all done.
I remember it was a Friday night, I’m on the phone with Janet and she said, “You have to turn the boy over now.” “Why?” I asked. I told her we were getting very close to getting everyone to agree. But she said it had to be now, and she won’t tell me why.
I was thrown off guard because my very close friend was Bob Graham had been told by [President] Bill Clinton that they’re never going to take the boy over the Easter weekend. So I thought we had until Monday. Janet’s a good person, by the way, although she screwed this up pretty good. And she couldn’t tell me she’d already ordered a raid weeks ago because I was an unauthorized person under the statute. There’s SWAT teams and they have to be protected.
Janet and I are going back and forth on the phone. The guy in the house is Manny Diaz, who later became Mayor of Miami and I’m negotiating between Janet and Miami. My wife is sitting there and it’s terribly stressful. Five a.m. I see the raid. It was almost a disaster what occurred. But a week before, there had been guns in that house, and I’d gotten them all out. I can just imagine if someone got killed, Janet would have been toast because it was such an unnecessary raid. They struggled, the SWAT team. And it turned out nobody got hurt.
And you know who [Reno’s] big advisor was? The current attorney general, Eric Holder. I just didn’t think there was any need to do it. And they did the one in Texas too [Waco], remember that? That was almost my worst day as a mediator. At least no one got hurt. No one knows there were guns there, but the statute has run. I had gone to the people with the house and told them they couldn’t have guns there and they had to get them out.
The Cuban American community acted very well. I’m not saying the decisions of the court were right or wrong, it probably was right legally but they all acted in a very democratic manner. And the community came together. There were a lot of bad feelings but nobody got hurt. Can you imagine if someone had pulled a gun on the SWAT team? Thank God there were no weapons.
I was very angry because I felt it was not handled right, even though I knew she could not tell me. Bob Graham said to me, Aaron, give the one interview and then be done. I gave the big interview and then I refused to talk. I’ll never forget ABC Nightly news called, and they said they’re having Janet Reno and they wanted me to come on. They got tough with me. And I said, “I don’t want to talk about it anymore.” They said, “You’re not going to come out very well,” and I said so be it. I made up my mind and I gave an interview and that’s it. Janet goes on, the Attorney General of the United States, and they tried to get her to say I wasn’t trustworthy, and she says no, you’re wrong, I would trust Aaron Podhurst with my life. She took all the wind out of their sails. That’s the kind of person she is.
LD: You have really seen a lot in your career.
AP: It’s been a good ride, Katrina. I feel like I’m not the most famous guy in the world, but I really have had the opportunity to taste life and to practice in a profession that I love and meet a lot of nice people. People are the most interesting thing in the world. I love to people-watch and meet people I don’t know. If you can teach your friends, children, lover, the best quality you can have is to feel good about yourself. If you feel basically good about yourself, you can do a lot of nice things. People who don’t like themselves can’t hide. You can’t get rid of yourself.
You know, nobody’s perfect. None of us can be. By and large if we’re a decent person, if you feel good about yourself, try to better yourself, have a good self image.
Each time one of our daughters got married, I gave the same speech at the wedding. There are five or six things you should know. One, don’t go to sleep angry, make up before the evening; you can’t have a very long fight with your husband. Two, don’t cross the bridge before you have to. So many things in life work out. Third is the six-month test. Today, you’re going to leave here, the cab will get stuck in traffic, maybe your boyfriend didn’t call. You have to have a light bulb go off between your ears and say is this going to bother me in six months? And if the answer is no, you have to laugh. Because it’s not important. If it’s not going to bother you in six months, let it go.
The last thing I tell my kids: Life is a journey, you’ve got to enjoy the journey. The destination is death. So enjoy what you do, be happy with what you do. To be an American born in America, you’re so lucky to begin with. And I don’t mean to be arrogant, but we’re so lucky to be Americans.
Everybody has a bad day. You could be born a woman in African, what chance do you have? I always say to my kids, you could have been born in a place where you have no chance. We’re not starving. We’re lucky. No one’s going to come arrest you for saying what you want to stay. We’re lucky.
LD: You’re so right. Thank you. It’s been fun talking to you.
AP: You too.