Add Berg & Androphy – a spirited Houston standout led by acclaimed lawyer David Berg – to the list of Texas firms making a run at New York. Berg recently hired two Kasowitz partners, Michael Fay and Jenny Kim, opening offices on West 45th St.
Berg is a famed trial lawyer and author, who’s won protection for anti-war protestors at the U.S. Supreme Court; defended Susan McDougal in her Whitewater conviction; sued the KKK with Morris Dees and the Southern Poverty Law Center to protect Vietnamese fisherman off the coast of Texas; and won $420M for limited partners of Marriott International and Host Marriott.
Throughout his 45-year legal career, he’s handled his share of cases in New York, which has grown in appeal to Texas trial lawyers as that state’s courts have been overtaken by tort reform. He was convinced to make it official by two things: the warm reception he received in a case involving breach of fiduciary duty by a sports agent, and the availability of Fay and Kim.
A few years back, Berg represented noted basketball agent Eric Fleisher and his Assist Sports Management agency against a former agent who took clients including Kevin Garnett with him to start his own firm.
“My favorite theme in any case if I can find it is betrayal,” said Berg. “If you ask any panel on voir dire anywhere, whether it’s Florida, Texas or New York, if they have ever been betrayed, sooner or later a hand goes up. It’s one of the most common and motivating themes of human life.”
A lawyer on the panel said a client had asked him to find investors for a company. He did, and invested himself. And everything the client said turned out to be a lie.
“I hate the ‘how do you feel’ question,” Berg recalls, “so I asked what he did about it. Did he sue?”
And the lawyer said, “I didn’t, but I wish I had.”
Berg – author of “The Trial Lawyer: What It Takes to Win” - led the panelist through a lovely illustration of how to win over a jury in voir dire. “So you don’t see anything wrong with coming to a courtroom to try to get your money back?” he asked.
He saw in the jury “a kind of compassion that is missing in other cities,” said Berg. “Texas jurors in many instances have been the subject of years and years of tort reform advertising and scare tactics. I saw some compassion in that jury I hadn’t seen in awhile.”
Berg tried the case with his son, Gabriel, of New York’s Kennedy Berg. The jury awarded Berg’s client $4.6 million – more than he asked for. “What I saw there I loved. It reminded me of the days when I was first coming up as a trial lawyer when people would be persuaded and not angry at trial lawyers.”
Earlier this year, Berg received a particularly intriguing pitch about a group from Kasowitz, led by Fay and Kim. “I checked with Harry Reasoner,” the vaunted Vinson & Elkins partner, “who said great things, and sat with them myself and it all clicked.”
Fay and Kim joined the firm in April, and already are bringing in commercial litigation and structured finance disputes. “The majority of our work is from Texas, but they’re gaining on us,” said Berg.
The firm now has 16 lawyers, and sees huge opportunity to add to its trial and qui tam practice, the latter, headed by Joel Androphy.
Neal Manne, the Houston-based managing partner of Susman Godfrey, sees a great future for Berg & Androphy in New York.
“David Berg is a wonderful lawyer whose rare combination of New York street smarts and Texas charm will assure his firm of great success in the Big Apple,” said Manne, whose firm has been blockbusters since opening in New York in 2007.
Berg’s street smarts and experience also appealed to Fay, who saw an opportunity for entrepreneurial litigation after 22 years with Kasowitz, including at Mayer Brown.
“We see great opportunity in financial-based commercial litigation, including mortgage-backed securities and derivatives,” says Fay. “We have found a very real interest among clients for trial lawyers with significant financial experience, without hundreds of mouths to feed, and with a willingness to take some of the risks of litigation through contingency fee arrangements.”
As Susman has proved, the New York market has a sweet spot for firms that will share the risk with clients. “What I do know is there is a huge opportunity for firms like ours because we are high risk, high reward,” said Berg. “We make all manner of creative fee agreements, but mostly we like to have skin in the game and we like clients to have skin in the game.”
“We love what we do,” said Kim, “Learning new things, understanding structured finance. We talk about the twists and turns of litigation strategy on a constant basis. “People think of it as work, and that’s never been the case for me. Work is my life and I don’t mean that in that sad way some people say it.”
Part of the attraction for Fay and Kim was the ability to go back to being trial lawyers, rather than administrators of huge trial teams at a big firm.
“This is an unbelievable breath of fresh air,” says Kim.
To Berg, who’s 73, it’s a way to stay in the game. “To me, two of the greatest obstacles to overcome are time, about which we fool ourselves in many ways. And wasted talent.
“Part of the move up here is personal. I’ve still got a few good verdicts left in me. They’re going to drag me out of the courtroom by my boots.”
Berg is also the author of “Run, Brother Run,” a childhood memoir.