Photo by Amy Cantrell.
Want a refresher on some of the biggest headlines of the past several decades?
Among his achievements is representing MGM Resorts International in settling literally thousands of claims arising from the mass shooting at the Route 91 Harvest Festival in Las Vegas in October 2017.
Brian also orchestrated a historic, multi-jurisdictional settlement on behalf of Pacific Gas & Electric Co., California’s largest utility, in litigation stemming from large wildfires that burned in Northern California in 2019 and 2021 and won a trial verdict in favor of drilling company Transocean after the Deepwater Horizon disaster that poured millions of gallons of oil into the Gulf of Mexico in 2010. After a multi-month trial, the court found that BP bore indemnity obligations for the millions of barrels of oil discharged, not Transocean.
Despite his success, however, the law isn’t the career Brian initially imagined for himself.
The son of a high school baseball coach, he gave up an opportunity to play professional baseball to attend Harvard Law, where he earned his juris doctorate in 1977.
“I didn’t know what to expect when I started law school, as I had no background at all in law or business,” he recalls. “Frankly, until then, my life had focused on two things: sports and schoolwork.” Harvard changed all of that. It was there that Brian realized he wanted to become a trial lawyer, and he went on to work in the U.S. Attorney’s Office in Los Angeles before joining Munger Tolles.
During the more than four decades since, he says, the legal profession has changed dramatically on the surface – not least during the Covid-19 pandemic, which saw a meteoric rise in video hearings – but remains the same at its core.
“The legal profession has evolved,” Brian says. “As many others have said, what was once a profession has become a business. The business of law is more complex and sophisticated than ever. But what was so satisfying about being a lawyer four decades ago still exists today. It’s the opportunity to help people solve their problems, and to work with great teams to do so.
Lawdragon: Speaking of the pandemic, you’ve been chair of Munger Tolles for three years now, during a period of tremendous upheaval in the law as well as life as we knew it before Covid-19. How has that affected your own practice and the firm’s operations?
Brad Brian: The short answer is that my firm and I adapted and, once we did, the Covid pandemic didn’t affect my practice or the firm’s practice at all. Because of our firm’s one-to-one partner/associate ratio and the non-bureaucratic way we govern ourselves, our firm has always been able to pivot quickly. We are rigorously committed to hiring and promoting only the best lawyers. From day one, lawyers here are given early responsibility and treated like owners. This has imbued an ownership-focused mindset among our lawyers, which is central to our firm’s success and ability to be nimble.
From paper exhibits to digital displays
For me personally, I have continuously adapted to changes throughout my 40 year career as a trial lawyer. I started trying cases when “publishing” an exhibit to the jury meant physically passing around the document to the jurors in the jury box. Over time that changed to using overhead projectors, then ELMOs [a brand of visual presentation equipment], and now computer operators who display and highlight documents on screens in the courtroom. None of this has changed the fundamental truth that the best trial lawyers are storytellers—they distill down complex facts into a coherent and persuasive story for the jury.
When I’m examining a witness, I want to be able to see the person’s face and at the same time gauge the reactions of the judge and jury. It’s much harder to do that when people are wearing masks.
It was fascinating to try a “hybrid” arbitration during the pandemic, meaning that the lawyers and arbitrator were together in a large conference room and some witnesses testified in person, but others appeared by Zoom. We won the case, but I must admit that it was harder to control a witness on cross-examination through Zoom. I also think something is lost when people in the courtroom are wearing masks. When I’m examining a witness, I want to be able to see the person’s face and at the same time gauge the reactions of the judge and jury. It’s much harder to do that when people are wearing masks. And it’s harder for the judge or jury to assess the credibility of witnesses whose faces are partially hidden behind masks.
There was one significant redeeming virtue of the pandemic: the modes of communicating with clients expanded. Although I missed the regular in-person contact with clients — and sought out every chance to meet with clients — the video technologies did enable us to connect with clients, rather than relying mainly on emails, text messages, and even phone conversations, which in my view have become too much of the norm. Regular client communication remained at the forefront — and in a perverse way was enhanced — while we adjusted to new state, local and national Covid-19 mandates.
I should note that our firm’s leaders — our Co-Managing Partners Hailyn Chen and Malcolm Heinicke, our Chief Operating Officer Kevin Posterro and management team — were relentlessly committed to supporting our workforce throughout the pandemic. They were incredibly thoughtful and careful as they thought about supporting our colleagues and serving our clients as effectively as we have for the past 60 years.
BB: Much of what was brought forth by the pandemic will become the new normal. I expect remote hearings to happen more regularly in many courts. By eliminating commutes — especially long distance travel — video technologies solve a lot of the logistical difficulties of getting a bunch of lawyers to the same place at the same time. I found that many lawyers are actually more comfortable speaking by video than they are in in-person hearings. Although I personally prefer in-person meetings, I expect many routine conferences will proceed by video.
I expect many law firms will continue operating in a hybrid work model, allowing lawyers and professional staff to work remotely as well as in the office. Separate from that, I think video conferencing will continue, both firm-wide and with clients, to connect people working in different offices of different cities.
I have mixed feelings about all of this. There is no more satisfying experience than going to trial with a team of lawyers, paralegals, and other support staff. That satisfaction derives in part from the sense of community that’s been built up among the team members. But it’s harder to do that when people are working remotely and not interacting with each other face-to-face.
I also expect many clients to limit in-person meetings and conduct more video conference calls. They’re less expensive and they enable more people to participate. But the attorney-client relationship is built on trust, and I’ve always thought you build trust by rubbing shoulders with each other in person.
BB: The types of cases we handle didn’t change during the pandemic. Munger Tolles is known for representing companies facing large crises that involve civil and criminal litigation, government investigations, regulatory work and challenging public relations issues. Companies faced many of the same issues during the pandemic, and we managed to get our share of those challenging cases. We are privileged to represent some of the largest, most respected companies in the country — Berkshire Hathaway, PG&E, Intel, Bechtel, Southern California Edison, Bank of America, Google, MGM Resorts, Fortress, and Wells Fargo, just to name some — and we continued to work for all of them during the pandemic. That said, many of our clients saw an increase in activity in pandemic-related areas ranging from PPP litigation for financial services clients, to force majeure disputes for real estate clients, to labor and employment litigation. We also saw an uptick in investigations as well as an increase in professional responsibility matters, perhaps because the pandemic led many people to want to blame others for their problems.
Personally, I was privileged to be retained by the court-appointed receiver responsible for administering health care to inmates in the California prison system. My charge was to advise the receiver on whether to recommend a mandatory Covid-19 vaccination for all staff entering the California state prisons. Ultimately, the receiver made that recommendation, the federal district judge adopted it, and I argued in the Ninth Circuit U.S. Court of Appeals in support of that order. Although the Ninth Circuit ruled against the order, it was a privilege to handle this and so many other socially and historically important issues.
Our firm has always been committed to pro bono causes and, if anything, that commitment got even stronger during the pandemic. Our work on behalf of incarcerated persons has become a blueprint throughout the country to protect medically vulnerable inmates. We have assisted lower income tenants who faced eviction during the pandemic. We also joined forces with other law firms, bar associations and legal aid organizations to launch LA Represents — a pro bono initiative that provides free legal services to Los Angeles residents facing hardships caused by the pandemic.
BIGGER ISN’T NECESSARILY BETTER
LD: What are the biggest challenges and opportunities facing lawyers/ law firms today?
BB: When I first started practicing law, a “big firm” had 100, perhaps 150, lawyers centered in one, maybe two offices. At that time, many firms viewed geographic and headcount growth—often by merger or lateral hiring—as the biggest opportunity to build a successful law firm. And many firms were very successful with this strategy.
At Munger, Tolles & Olson, we decided many years ago to take a very different path. Our growth has remained intentional and this has allowed us to preserve the cultural cohesion and extraordinary quality that is central to our service model. For many years we had only one office. We now have offices in San Francisco and Washington, D.C., in addition to Los Angeles, not because we wanted to expand our geographic footprint — we already had a national practice — but because we had an opportunity to bring in exceptionally talented lawyers who happened to live in those cities.
Throughout our firm’s history, we have viewed hiring and promoting the most talented people as the most important underlying value of the firm. That principle guides us today. Perhaps because of that principle, we’ve often been called upon to help guide companies through some of their most challenging problems and crises— including our work for Salomon Brothers in the Treasury bond scandal more than 30 years ago in New York; for Allstate Insurance Company in the thousands of claims arising from the 1994 Northridge Earthquake in Southern California; for Transocean in the Deepwater Horizon tragedy off the coast of New Orleans; for Tokyo Electric Power Co. Holdings, or TEPCO, handling lawsuits brought by plaintiffs who alleged they sustained injuries related to the 2011 nuclear disaster in Japan; for MGM Resorts International in resolving claims by more than 4,000 victims of the horrific terrorist shooting in Las Vegas in 2017; and for PG&E now in the criminal and civil litigation arising from wildfires in Northern California.
Our relatively smaller size has never prevented us from taking on large matters—including international investigations. We have developed strong relationships with colleagues outside our firm and often find ourselves partnering with other law firms and lawyers in big cases. I have found those relationships deeply fulfilling, as I always learn from working with the best lawyers in the world, regardless of where they work.
LD: Your career has included both government work and private practice. What skills did you learn at the U.S. Attorney’s Office that benefited you when you moved to Munger Tolles?
BB: I went to the U.S. Attorney’s Office in Los Angeles because Andrea Ordin, the first woman U.S. Attorney in Los Angeles, was working to build something special there. Before joining her office, I interviewed with a number of law firms at the time, though Munger Tolles was the only law firm in Los Angeles that thought going to the U.S. Attorney’s Office would be a good move. They said it would be a great job for me because I would learn how to build cases, get trial experience, and broaden my overall experience in the law and the community.
They were right. I tried 17 cases in three years, learned how to build cases and focus on what matters, and built friendships that have lasted a lifetime.
Our firm continues to hire lawyers out of government service and to encourage others to give back through government service. My partner in Washington, D.C., Don Verrilli is the 46th solicitor general of the United States. Countless Munger Tolles alums are serving in the courts and in government, including six on the 9th Circuit U.S. Court of Appeals, one as a federal district judge and 19 as state trial judges, the latest of which is my partner Brad Phillips, whom Gov. Gavin Newsom appointed to serve as a judge on the Los Angeles Superior Court on March 14. There are also three Munger Tolles alums in the White House Counsel’s Office, and 22 in U.S. Attorney’s Offices around the country.
LD: What advice would you give someone considering a similar path, especially regarding timing? Is it better to start in private practice and then go into the public sector or vice versa?
Client is Job 1
BB: There’s no magic formula. I was fortunate enough to land a job at the U.S. Attorney’s Office right out of a clerkship. Others take government jobs after a few years in private practice. Still others become judges at the end of their careers.
Everybody is different, and what works for one person might not work for another. But I will offer this: Everything we do as lawyers should start and end with the client in mind. I recommend that junior lawyers pursue any opportunities that broaden their understanding of client needs and teach them how to solve problems. Early in my legal career, I joined the Board of the Joffrey Ballet when it was co-based in Los Angeles and New York City. It was a difficult time for the company because its founder, Robert Joffrey, had just died and half of the board resigned over the company’s financial problems. I unexpectedly found myself running the company while practicing full-time at Munger Tolles. The organization was deeply in debt, so I had to make tough financial and managerial decisions with help from a team of outside lawyers. This gave me a client’s vantage point early in my career and helped me learn firsthand what high-quality client service truly means. I credit my role with the Joffrey and my work at the U.S. Attorney’s office as the two experiences that most shaped who I became as a lawyer. I learned to exercise my judgment and to make decisions based on the best information I could get. I learned that client service is paramount, and that lawyers should give back to the communities in which they live and practice.
The business of law is more complex and sophisticated than ever, but what was so satisfying about being a lawyer four decades ago still exists today. It’s the opportunity to help people solve their problems, and to work with great teams to do so.
I must say that trial experience—whether gained through private practice or public sector work—gives lawyers an accelerated understanding of what clients need and how to solve problems. We have a number of fabulous trial lawyers at our firm—Greg Stone, Glenn Pomerantz, Carolyn Luedtke, Hailyn Chen, Bethany Kristovich, Laura Smolowe, Bryan Heckenlively, and Craig Lavoie all come to mind—who got their first experiences trying cases at our firm and not the Justice Department.
The bottom line is that lawyers must take advantage of the best opportunities available. For some lawyers, that will be private practice, and for others it will be public sector work.
BB: I’m continuing to work on great cases, both civil and criminal. I’m spending a lot of time leading the defense of PG&E in both criminal and civil litigation arising out of wildfires in Northern California. I really enjoy those cases both because the client is terrific and because the cases involve issues of national importance as climate change and drought create challenges for utilities, government and private landowners alike.
I’m also continuing to represent law firms in defense of legal malpractice and other claims against them. I love representing lawyers because I care deeply about the legal profession and the role we as lawyers play in resolving disputes in a democratic society. Over the past 30 years, I have been privileged to represent some of the largest law firms in the country in their most challenging problems. I am very humbled by the fact that my peers in the profession have often looked to me to help them in their times of need.
Last year, my partners Bethany Kristovich, Laura Lin, and I geared up for trial for a major law firm facing hundreds of millions of dollars of exposure. The case settled literally on the eve of trial.
Earlier this year, I was brought in to work as co-counsel with Elena Baca of the Paul Hastings firm in defense of broad allegations of gender discrimination. The case is set for trial in February of 2023.
I’m also leading a number of investigations for major companies in response to government subpoenas and investigations.
I feel very fortunate that my practice has remained as broad, diverse and challenging as it was thirty years ago.
BB: My life and legal practice are incredibly fulfilling, so I don’t regret giving up my chance to play professional baseball for the opportunity to go to law school. I learned how to think like a lawyer, to analyze a problem and to come up with a solution. I also met a broad range of enormously talented people like Susan Estrich (the first woman President of the Harvard Law Review), Attorney General Merrick Garland, and my lifelong friends Steve Naifeh and Greg Smith, who introduced me to theater, music and art, and who later won the Pulitzer Prize for their biography of Jackson Pollock.
It was in my third year at Harvard Law School that I realized I wanted to be a trial lawyer. I got good grades during my first two years of law school, but I didn’t really enjoy law school. But in the second semester of my third year, I took an intense trial advocacy program, and was able to learn from such gifted trial lawyers as the late John Payton, Linda Listrom, and Jane and Norm Moscowitz. I was hooked. From there it was an easy decision to apply to the U.S. Attorney’s Office in Los Angeles when my wife (an investigative reporter) got a job at the Los Angeles Times.
When I left the U.S. Attorney’s Office in late 1981 and joined what was then Munger, Tolles & Rickershauser, I didn’t know what to expect. I hoped I could continue trying cases in both the criminal and civil arena.
Right from the start, it was clear that Munger Tolles was a firm that would provide me the opportunities to pursue my passion. Less than a year after I joined the firm, I and two of my colleagues, Bill Temko and Rush Fisher, took on a death penalty appeal to the California Supreme Court for a convicted man who was in fact innocent. After hundreds of pages of briefs and an intense oral argument, the Supreme Court reversed the conviction in a 4-3 vote and remanded the case for a new trial. The second jury failed to convict our client, and he was released.
The firm also gave my partner Greg Stone and me the opportunity to serve on the Federal Indigent Defense Panel, where each of us tried a number of criminal jury trials to verdict. In 1985, we were asked to represent Svetlana Ogorodnikova in a very high-profile espionage case that seems to have been the inspiration for the TV show, The Americans.
My practice took a major turn a year or so later after Congress amended the federal False Claims Act to provide much higher economic incentives for private plaintiffs to file qui tam suits on behalf of the Federal Government. Most of the early cases were filed against defense contractors in Los Angeles, and I was fortunate enough to be hired to represent many of those contractors. By the early 1990s, I had handled dozens of cases under the False Claims Act, and had developed significant expertise in this area.
Perhaps ironically, it was my False Claims Act work that led to the more than 200 legal malpractice or malicious prosecution cases I have handled for dozens of major law firms. In many of my early False Claims Act cases, I partnered with other firms and developed close and lasting relationships with some very able lawyers at those firms. When unfortunately those firms got sued, they looked to me to represent them in defense. That led to my law firm defense practice which I have maintained ever since.
In 1994, I got an opportunity that literally changed my life, both professionally and personally. Tom Spiegel, the CEO and Chairman of Columbia Savings & Loan Association in Beverly Hills, had been indicted on more than 100 counts of bank fraud, embezzlement, and other charges. Tom was represented by one of the best white collar lawyers in the country (based in New York City), but decided he wanted somebody else to try the case for him. I was one of the dozen or so lawyers he interviewed. He gave me a half-hour for the interview, but we ended up spending four hours together in that first meeting. He hired me the same day.
Together with two great lawyers—my partner Mike Doyen and our co-counsel Rich Marmaro— we had a 10-week jury trial in late 1994. The judge threw out some of the charges at the end of the government’s case, and the rest went to the jury. The trial was very emotional, and the Los Angeles Times recap noted, "some in the packed courtroom gallery [were] brushing back tears" as I closed my two-hour summation to the jury. Tom was acquitted on all charges.
The verdict changed everything in my practice. I kept doing False Claims Act cases, and I expanded my law firm defense practice. But the Tom Spiegel case enabled me to get into what I call “crisis” cases — for Allstate in the thousands of cases arising from the 1994 Northridge earthquake; for the construction companies Shea-Kiewit-Kenny in litigation arising from the collapse of the temporary support tunnel for the Los Angeles subway; for a national law firm in defense of literally hundreds of lawsuits filed by taxpayers claiming they had received fraudulent advice from a former partner who was later convicted and sentenced to eight years in prison; for Transocean in the Deepwater Horizon tragedy in the Gulf of Mexico in 2010; for MGM Resorts in defending thousands of claims from victims of the 2017 terrorist shooting at the Mandalay Bay Hotel; and for PG&E in the civil and criminal litigation arising from the tragic wildfires.
When I started out, I didn’t expect any of this to happen. I’ve been blessed with the opportunity to learn from some of the best lawyers in the country, including my friend and mentor Ron Olson, former partners like Alan Bersin, Carolyn Kuhl, Jerry Roth, Allen Katz, Susan Nash, and Bart Williams, and some wonderful lawyers at other firms like Jamie Gorelick, Ted Wells, Dick Sauber, Deb Yang, Mary Jo White, Kerry Miller, and Kevin Orsini. All of them have made me a better lawyer, and I’m truly humbled by the chance to work with them and with some of the best in-house lawyers in the country.
BB: My father, who died in 2018, was the longest-running high school baseball coach in the history of the state of California. As both a coach and a parent, he instilled in me the values of working as a team, striving for excellence, and respecting your opponents.
The same values apply in litigation. I work hard every single day to do the very best work I can, to encourage my colleagues to do the same, and to try as hard as possible to get the best possible results for our clients. Regardless of how hard I push, I always respect my opponent and of course the court and its staff. As a mentor to junior lawyers, I do my best to pass along those values in the next generation of attorneys.
BB: The first thing they need to know is that practicing law at this level is hard work; there’s no sugar-coating that. You need to be smart, but it’s not enough. When we hire new lawyers, we look for people who, through a combination of brainpower and their life experiences, will exercise good judgment and be willing to take responsibility for communicating those judgments to clients, judges, and opposing counsel.
The Three R's
I often stress to lawyers at our firm the value of the “3 R’s” — reputation, relationships, and responsiveness. To build a successful practice these days, you need to show all three of these. You need to build a reputation among clients and your peers. You need to develop relationships of trust and confidence. And, particularly in this era of electronic communication, you need to be responsive.
As a trial lawyer, I want the jury looking to me as the source of truth so that when I ask a question on cross-examination, the jury thinks I have evidence on which I have based that question.
LD: How would you describe your style as a trial lawyer?
BB: I pride myself on being better prepared than anybody on the other side. Nowadays cases are tried based more on the documents than on witnesses’ recollections of in-person meetings and phone calls. To be an effective trial lawyer these days, you need to know all the key documents and be nimble enough to use those documents to impeach witnesses who stray from them.
If you know the documents well, you’ll also enhance your chances of maintaining your credibility with the jury. I think credibility with the jury is critical. As a trial lawyer, I want the jury looking to me as the source of truth so that when I ask a question on cross-examination, the jury thinks I have evidence on which I have based that question.
A lot of people believe jurors make up their minds after opening statements. I’m not sure that’s right, though I’m sure many jurors say that in post-trial interviews. But regardless of whether they actually make up their minds after opening statements, it’s clear that first impressions matter with jurors — much like they matter in your first appearance before the judge or in your first meeting with your client. So not only is your opening statement critical, but the first 5-10 minutes of your opening statement are critical. Tell them in simple, direct words what the case is about and what the key evidence will show. And if you have a smoking gun, mention it early in the opening statement and then weave into your more detailed account later.
I try not to be flashy or over-the-top at trial, though people who have seen me try cases likely would say that I can be pretty forceful during my cross-examinations of hostile witnesses. I’m fond of saying that every case is about credibility. What I mean by that is that witnesses have their own personal biases and agendas, and those biases and agenda can affect the way they frame their answers, the tone of their voice, or even their body language while they’re testifying.
Make sure to listen during trial. Many lawyers think they are great orators, but the best trial lawyers are really good listeners too. You cannot be a great cross-examiner if you don’t listen to the witness’s answers. I have seen too many lawyers tied to their scripts during witness examinations. Sometimes those lawyers completely fail to follow up on an answer they didn’t expect, even if that answer is very helpful to the lawyer’s case.
BB: By far the most memorable experience happened in 1994 during my defense of Thomas Spiegel, the CEO of Columbia Savings and Loan.
The main government witness testified for a day and a half on direct examination. I then cross-examined him for a half-day. When I got back to my office late that night, I saw a message from someone who claimed to know the witness and said he could “help.” Even though it was after 10:30 p.m., I called him back. He asked me to meet with him the next morning, and stressed that he had evidence that would really hurt the government’s witness.
I didn’t know what to make of it, and of course I couldn’t meet with him the next morning because I was continuing the cross-examination. So I asked my partner Mike Doyen to meet with the informant.
What happened next changed the case, led to Tom’s acquittal, changed the course of my career, and reshaped at least some of our firm. To make a long (and very interesting) story short, the informant had secretly tape-recorded the witness and gave us a tape where the witness, between profanities, said: “I’m the biggest thief I’ve ever met,” and “I’ve never met a man I couldn’t con.” The second statement captured our trial theme perfectly — that this witness had conned Tom into believing that the false financial statements the witness had submitted to the savings and loan association were in fact accurate.
As you might guess, when I asked the witness on the stand whether he had made the statements recorded on the tape, he denied them. I then played the tape and asked him if that was his voice on the tape recording. After he sheepishly said “yes,” I stared at him for 30-45 seconds and announced that I had no further questions.
The jurors gasped. The trial effectively was over.
BB: I love being a lawyer. I love trying cases. I love helping clients. And I love working as part of a team. The legal system in our country is the best legal system in the world, and is a key part of our democratic system for making decisions. I remain proud to be part of it. I hope others feel the same way.