March 2006
The Tenth Annual California Lawyer Attorneys of the Year Awards
By the staff of California Lawyer

This issue marks the tenth anniversary of the California Lawyer Attorneys of the Year Awards. In 1996 we recognized 36 attorneys who made new law, set new policy, continued their exceptional work, or changed the course of national events. That tradition continues this year as we distinguish the state's attorneys-as well as one justice-whose work has had a significant impact in 2005 or whose achievements are expected to have a significant effect in the coming years. This year 35 accomplishments in 18 areas of legal practice and a total of 47 attorneys are recognized, including William Lerach and Kathleen Sullivan, whom California Lawyer named attorneys of the year ten years ago. The people honored include sole practitioners, public interest attorneys, attorneys from international law firms, district attorneys, and law professors. Their areas of practice range from elder law to appellate work at the California Supreme Court, the Ninth Circuit, and the U.S. Supreme Court. -Chuleenan Svetvilas

Administration of Justice

Carol A. Corrigan
Associate Justice, California Supreme Court

As chair of the Judicial Council's Task Force on Criminal Jury Instructions, Corrigan oversaw the drafting of more than 700 criminal jury instructions, replacing those drafted and used since the 1930s and '40s.

The task force, comprising 15 judges, lawyers, and legal scholars, worked for eight years to refashion the instructions, which took effect on January 1. Its aim was to recast the instructions in plain English-both to ensure that deliberating jurors understand and apply the law correctly and to make the experience of serving on a jury more meaningful. Although several states have revamped their jury instructions with an eye toward simplification, California stands alone in rewriting both its civil and criminal jury instructions from scratch. (The revised civil jury instructions took effect in September 2003.)

A few months after the task force completed work on the criminal instructions, Gov. Arnold Schwarzenegger appointed Corrigan, an appellate judge, to the state Supreme Court.

Alternative Dispute Resolution

Jeff G. Kichaven
Jeff Kichaven, A Professional Corporation, Los Angeles

As the 2005 president of the Southern California Mediation Association, Kichaven used his bully pulpit to push a reexamination of Los Angeles County's court-annexed program using pro bono mediation services, charging that the program both siphoned off public resources for high-stakes cases and unfairly denied mediators adequate compensation. Kichaven earlier spearheaded the group's first amicus brief filing in the seminal case of Rojas v. Superior Court (33 Cal. 4th 407 (2004)), urging the California Supreme Court to define limitations to confidentiality in mediation-a challenge to the mediation community's widely held assumption of absolute confidentiality.

"The easier path concerning both of these issues would have been not to rock the boat. But Jeff was willing to be the lightning rod on important and controversial topics-and that has made a huge difference in the profession," says Peter Robinson, associate director of the Straus Institute for Dispute Resolution at Pepperdine University School of Law.

Kichaven, who also was one of the authors of A Litigator's Guide to the Effective Use of ADR in California (Cal CEB 2005), began a full-time mediation practice in Los Angeles nearly a decade ago. "Maybe that is one of the most noteworthy things a mediator can do: start a practice from nothing," observes Richard Chernick, vice president and acting director of JAMS's arbitration practice.

Appellate

Stephen B. Bedrick
Law Offices of Stephen B. Bedrick, Oakland

Thanks to Bedrick, a sole practitioner who took his case all the way to the U.S. Supreme Court, racial discrimination in California jury selection has become much more difficult. The issue at hand: Do defense attorneys need to show that racial bias was "more likely than not" before they can force prosecutors to explain their peremptory challenges to strike minorities from juries? The justices thought not. By a vote of 8-1, they ruled that the mere inference that discrimination had occurred was enough to force prosecutors to explain their challenges. (Johnson v. California, 125 S. Ct. 2410 (2005).) The ruling overturns a California Supreme Court decision. (People v. Johnson, 30 Cal. 4th 1302 (2003).) Bedrick's client, Jay Shawn Johnson, is an African-American who was convicted of second-degree murder by an all-white Contra Costa County jury.

Andrew W. Schwartz
Shute, Mihaly & Weinberger, San Francisco

Twelve years of property rights litigation came to an end in June when the U.S. Supreme Court ruled unanimously that takings claimants do not have the right to relitigate their cases in federal court after losing at the state level. (San Remo Hotel v. City and County of San Francisco, 125 S. Ct. 2491 (2005).) It was one of the year's big defeats for property rights advocates and a big win for Schwartz, who saw the case through from beginning to end, even though he left the San Francisco city attorney's office last year to enter private practice. The hotel owners had argued that a taking occurred when a city ordinance prohibited the hotel from converting its rooms from residential to tourist use unless it paid a portion of the cost to replace the lost residential units. The Supreme Court decision effectively leaves federal courts out of the vast majority of takings cases. It also cuts the expense for local agencies to defend their land-use regulations. Essentially, says Schwartz, "What the decision does is preserve local control of land use."

Kathleen M. Sullivan
Quinn Emanuel Urquhart Oliver & Hedges, Silicon Valley/Redwood Shores

Co-arguing with Clint Bolick of the Institute for Justice, Sullivan won a 5-4 decision from the U.S. Supreme Court that strikes down state laws barring consumers from receiving direct shipments of wine from out-of-state wineries if in-state wineries can make such shipments. It was a huge win for the wine industry, and also a big win for the economy of California, where wine and related industries have an annual impact of $45.4 billion. The decision, Granholm v. Heald (125 S. Ct. 1885), combining two cases from Michigan and one from New York, pitted two seemingly irreconcilable parts of the Constitution against each other: the Commerce Clause, which bars states from erecting trade barriers, even in areas of commerce where Congress has not legislated; and the 21st Amendment, which gives states broad powers in regulating the importation of alcohol. Bolick made the libertarian case to the justices. But in the oral argument, it was left to Sullivan to handle the most challenging questions. On the heels of the decision, a handful of states-including New York, Texas, Florida, Ohio, and Michigan-are moving toward allowing California wineries to sell directly to their residents. As big a year as 2005 was for Sullivan, though, the former Stanford Law School dean suffered a disappointment last year: She did not pass the California Bar exam after being hired by Quinn Emmanuel.

Civil Rights

Steven Wyner
Wyner & Tiffany, Torrance

Marcy J. K. Tiffany
Wyner & Tiffany, Torrance

In one of the most important special-education cases in decades, partners Wyner and Tiffany settled a case for $6.7 million with the Manhattan Beach Unified School District and the California Department of Education, which failed to comply with administrative orders to appropriately educate an autistic student.

The settlement's impact is national because it made clear that states must ensure school districts comply with the federal Individuals with Disabilities Education Act, which calls for districts to provide a free, appropriate public education. Before this case, California's education department left enforcement up to parents, according to special-education expert Pete Wright. Now states are realizing they can be found financially responsible, explains Tiffany. She says school districts are getting the message that if they drag their feet, they can pay a big price.

Paul L. Hoffman, Anne K. Richardson, Dan Stormer
Schonbrun DeSimone Seplow Harris & Hoffman, Venice (Hoffman); Hadsell & Stormer, Pasadena (Richardson and Stormer)

In March 2005, El Segundo-based oil company Unocal (acquired by Chevron in August) finalized an out-of-court settlement with 15 Burmese villagers who had alleged they were swept into forced labor during construction of a gas pipeline in Burma during the 1990s. The lawsuit centered on Unocal's responsibility for human rights abuses allegedly committed by the Burmese military. News sources estimate the settlement included $30 million in damages.

It is the first settlement reached in a case brought against a U.S. company under the Alien Tort Claims Act, which allows foreigners to seek damages in U.S. courts for crimes against the "law of nations." The U.S. Supreme Court has upheld the use of this law to bring human rights claims in federal courts. (Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).)

Hoffman, Richardson, and Stormer served as plaintiffs attorneys for the villagers, along with the nonprofit organizations Center for Constitutional Rights, EarthRights International, and International Labor Rights Fund.

Criminal Law

Dave Harris, Rick Distaso, Birgit Fladager
Stanislaus County District Attorney's office, Modesto

These three Stanislaus County deputy district attorneys were essentially dismissed as lightweights by many media pundits when they began prosecuting Scott Peterson for murder in the spring of 2004. Not only were they up against a media-savvy big-city lawyer, Mark Geragos, but they appeared to make some serious missteps at the beginning of the trial. By the end of 2004 when the jury convicted Peterson of killing his wife, Laci, and unborn child, the criticism had turned to praise. "We thought Geragos was going to overwhelm them," says Dean Johnson, a former San Mateo County prosecutor who is now a lawyer in Redwood City, where the case was tried. "It turned out the prosecutors outmaneuvered him at every level. The defense case suffered a meltdown, and Distaso's closing argument was outstanding." Peterson was sentenced to death in March 2005; three months later Distaso was appointed to the Stanislaus County bench.

Janet I. Levine
Lightfoot Vandevelde Sadowsky & Levine, Los Angeles

John D. Vandevelde
Lightfoot Vandevelde Sadowsky & Levine, Los Angeles

The criminal case against accused double agent Katrina Leung took a dramatic turn in January 2005 when a federal judge threw out all charges against her. The ruling was a jaw dropper, and it underscored the tenacity of Leung's lawyers, Levine and Vandevelde. Leung had been indicted on charges of photocopying and processing national security documents with the intent of harming the United States. She allegedly obtained the documents during romantic encounters with her FBI handler. After the government blocked their access to this agent, Levine and Vandevelde filed their motion for dismissal. Few thought it would go anywhere. But in the end the judge ruled that the prosecutors had engaged in "willful and deliberate misconduct." Now, says Laurie L. Levenson, who was a federal prosecutor before becoming a professor at Loyola Law School, whenever the government has another national security case, "they are going to hear echoes of this case." In December, Leung's attorneys reached a settlement with the U.S. Attorney's office, resolving all civil and criminal charges and dropping all appeals.

Thomas A. Mesereau Jr.
Mesereau & Yu, Los Angeles

Mesereau became the criminal lawyer in the country in 2005 when his client, Michael Jackson, walked out of a Santa Maria courthouse a free man. The pop star had faced a total of ten felony charges, including four counts of lewd conduct with a child under 14; four counts of administering alcohol to facilitate child molestation; and one count each of attempted lewd conduct and conspiracy to commit abduction. For Tom Sneddon, the Santa Barbara County district attorney who had pursued Jackson for more than a decade, it was the bitter end to a long hard fight. For Mesereau, who had previously defended heavyweight boxing champion Mike Tyson and actor Robert Blake, it was his most spectacular victory to date.

Elder Law

Anthony Chicotel
Elder Law & Advocacy, San Diego

In a case of first impression, California's Fourth Appellate District Court held last June that a skilled nursing facility in San Marcos violated the law when it refused to readmit a resident after a short stay in a hospital-a common tactic among facilities that seek to weed out residents who are Medi-Cal recipients, who require extensive care, or who are otherwise deemed problematic. The resident, Morteza Kashaninia, was represented by Chicotel. Eric Carlson, an attorney with the Los Angeles office of the National Senior Citizens Law Center, filed a pivotal amicus brief in the case.

The Kindred Nursing Centers case is unpublished. But "its logic has already had a huge impact on how nursing facilities in the state do business," according to Stephen M. Garcia, who practices elder law in California.

Chicotel recently filed lawsuits against two more facilities, alleging similar wrongs.

Entertainment

Robert A. Darwell
Sheppard Mullin Richter & Hampton, Los Angeles

David Weil
O'Melveny & Myers, Los Angeles

Like so many made-in-Hollywood marriages that go sour, the demise of the relationship between the Walt Disney Company and Miramax Films creators Bob and Harvey Weinstein was both stormy and highly publicized. Yet when the separation deal was finally announced in early April, both sides were actually talking about working together on future projects. Credit the negotiating skills of Darwell and Weil. Darwell led the outside legal team that represented Disney; Weil represented the Weinsteins. The two persevered through months of intense and often heated negotiations, which were conducted daily. Disney bought Miramax in 1993, but by 2004 it was clear the differences between them were irreconcilable. (That was the year Disney refused to distribute the controversial Michael Moore documentary Fahrenheit 9/11, which the Weinsteins financed.) In the final agreement, the Weinsteins agreed to complete projects already in production and oversee the distribution of Miramax films scheduled for release.

Environmental

Eric L. Garner
Best Best & Krieger, Riverside

Garner, recently named managing partner of his nearly 180-lawyer firm, was a key figure in resolving one of the largest settlements in recent years involving underground water supplies. The almost decade-long Santa Maria groundwater rights adjudication involved a huge basin in a fast-growing area of Southern California and pitted agriculture against urban interests-a classic California water fight. Although not all of the 1,200 parties have settled, enough have to give participants hope that the deal Garner helped broker will establish some peace and assure adequate water supplies for all involved. Garner, who represented the city of Santa Maria, was among the chief architects of the settlement.

Bill Lockyer
Office of the Attorney General, Sacramento

Since he was elected to the state's top legal office in 1998, Lockyer has often stressed his personal commitment to environmental issues. In June his office won one of the most significant environmental cases in recent history when the California Supreme Court unanimously rejected a property rights challenge to the California Coastal Commission based on its composition. (Marine Forests Soc'y v. California Coastal Comm'n, 36 Cal. 4th 1.) The court's decision also removed a legal cloud over thousands of decisions the coastal agency made over its three decades in existence. Supervising Deputy Attorney General Joseph Barbieri took the lead for Lockyer in defending the commission.

Lockyer has also positioned California in opposition to the federal government in what many perceive as the Bush administration's environmental rollbacks. For example, the attorney general has taken on federal policies on logging and air pollution. Lockyer has also actively disputed administration claims that federal regulation preempts the state's Proposition 65 consumer warnings on meat and certain types of fish.

Peter Mieras
District prosecutor, South Coast Air Quality Management District, Diamond Bar

Mieras has one of those jobs that rarely grabs headlines. However, in 2005 he led efforts by the district-which sets air pollution policy for an area that suffers from some of the dirtiest air in the nation- to resolve a case with a major refining company. The deal, reached in March, required BP West Coast Products to pay a $25 million penalty and spend millions more improving the company's Carson refinery. With a total value of $81 million, the settlement brought far less than the nearly $600 million the air district had sought in its two cases against the refinery. However, the cash penalty was the largest ever won by the district.

Mieras headed a team of staff attorneys and outside counsel working on the case.

Family Law

Jill Hersh
Hersh FamilyLaw Practice, San Francisco

After losing in both the trial court and the court of appeal, Hersh took her case to the California Supreme Court and won a ruling that potentially affects the rights of thousands of lesbian co-parents. The decision in K.M. v. E.G. (37 Cal. 4th 130 (2005)), which extended the parental rights of nonadoptive lesbian parents, held that Hersh's client, who donated her ova so that her lesbian partner could bear children, was a legal parent of those children. Effectively wiping out the distinction between families headed by heterosexual couples and those headed by same-sex couples when it comes to the custody of their children, the decision is also viewed as a significant civil rights and children's rights victory. Much of Hersh's work on the case, which spanned four years, was done pro bono. Reflecting on the amount of work and time she devoted to the case, Hersh says, "It never occurred to me to stop. It was just the right thing to do."

Government/Public Policy

Dick Ackerman
California state senator, Irvine

Joseph Dunn
California state senator, Garden Grove

In their leadership positions, these two lawyer-legislators have helped create unprecedented bipartisan legislative and budget support for the state's judiciary. Ackerman (R-Irvine) is the Senate Republican leader, and Dunn (D-Garden Grove) is the chair of the Senate Judiciary Committee. Dunn's ongoing support for the judiciary proved critical when a Senate-Assembly budget conference committee cut $100 million from the courts' $3.4 billion annual 2005-06 budget. Dunn balked and refused to vote for the entire state budget until the money for the courts was restored; the other legislative leaders went along. Also, this past year Dunn held legislative hearings in eight cities to underscore the need for a robust and independent judiciary. As a Republican, Ackerman obviously has less power in the Democrat-controlled Legislature, but he has used his influence to back stability in funding for the judicial branch. "There are fewer and fewer lawyers in the state Legislature," says one Sacramento lobbyist. "These two are in a position to help the legal profession, and they have. Their legal training informs the way they approach the issues that come before them. Lawyers and judges are fortunate to have them."

John H. Knox
Orrick, Herrington & Sutcliffe,San Francisco

During last year's state budget crisis, Knox used creative legal and financial strategies to secure nearly $455 million to help local governments throughout California pay for basic operating costs, including police and fire-fighting services. It was the first time securitization techniques had been used between the state's government agencies, a strategy that was already common in the private sector. Knox helped draft legislation allowing cities to sell financial assets that the state owed them. Knox and his team then coordinated the process of obtaining that cash on behalf of 146 cities and counties. When the state government surprised everyone by paying its obligations early, Knox adapted quickly to close the deal-and even managed to get the local governments extra money.

"John Knox got it all to work magically," says James Hamill, program manager for the California Statewide Communities Development Authority. "We couldn't have done it without him." Knox says the technique, which centered on the vehicle license fee receivable, is another step in expanding the use of securitization for local governments. He is working on similar financing strategies for funding schools and other state-mandated local services.

Immigration

Jonathan D. Montag
Montag & Nadalin, San Diego

Montag won a 3-0 decision from the Ninth Circuit that established two important precedents expanding rights of those seeking asylum in the United States. (Tchoukhrova v. Gonzales, 404 F.3d 1181 (2005).) First, the court ruled that children with serious disabilities constitute a "particular social group" that merits special consideration for asylum when they face a well-founded fear of persecution. And second, the court ruled that the special status accorded to these children carries over to the affected parents. The facts of the case were particularly gruesome: When Evgueni Tchoukhrova was born in 1991 in Vladivostok, Russia, with infantile cerebral paralysis, he was initially thrown in a container holding medical waste. Against all odds, the baby survived, but government officials applied tremendous pressure on the parents to abandon the child to a state-run orphanage. The parents resisted, and after the child was denied both medical care and access to public schools, the family came to the United States seeking asylum. As Jayne Fleming, an appellate attorney at Reed Smith, notes, the Ninth Circuit took pains in this case to describe the circumstances in which denying medical care or education can be viewed as persecution. And she says the court's decision promises to have a big impact on asylum cases.

Marina Pineda-Kamariotis
Law Office of Marina Pineda-Kamariotis, San Francisco

In April 2004 sole practitioner Pineda-Kamariotis argued that her clients were caught in an absurd situation with their immigration appeal. Husband and wife Salvador Azarte and Celia Castellon had filed a timely motion to reopen their case with the Board of Immigration Appeals (BIA) because their U.S. citizen child had a newly diagnosed disability. However, an immigration judge had already decided they should leave the country under a voluntary departure. The BIA did not act on their new motion for six months, and then it penalized them for not leaving.

Pineda-Kamariotis took the case to the Ninth Circuit, which ruled in January 2005 that in such situations the departure date must be extended until the BIA rules. (Azarte v. Ashcroft, 394 F.3d 1278 (2005).) This resolved a catch-22 situation by which the BIA denied appeals to immigrants granted voluntary departure. In the past year, Azarte has been cited numerous times by the Ninth Circuit and by other circuit courts.

Intellectual Property

Mark Lemley
Professor, Stanford Law School;of counsel, Keker & Van Nest, Palo Alto

Lemley's pursuits in litigation, policy, and education in 2005 helped shape debate on the most pressing issues in intellectual property. He served as lead counsel on an amicus brief filed by various tech companies in the Federal Circuit case that changed the law of claims construction. (Phillips v. AWH Corp., 415 F. 3d 1303.) The court held in that case that patent claims should be construed based not on dictionary definitions but on the text of the patent-the position advocated by Lemley for his client, Intel, and other amici curae. In addition, Lemley testified before congressional panels on patent reform and pending legislation, and before the Senate on antitrust law reform. Finally, he established the IP Litigation Clearinghouse on the Stanford University campus. Its purpose is to create a comprehensive, searchable database on every IP lawsuit in the country, to help inform policy decisions, support consistent monetary values for patent cases, and provide data for standardizing royalty fees.

Litigation

David M. Balabanian
Bingham McCutchen, San Francisco

Most lawyers never get to experience a Perry Mason Moment, when a witness reveals a startling truth while under oath. In Balabanian's case, that moment came during his deposition of PeopleSoft CEO Craig Conway and proved crucial in Oracle's January 2005 acquisition of PeopleSoft for $10.3 billion. At the time of the deposition, PeopleSoft was successfully holding off a hostile takeover bid by Oracle. In one of several legal maneuvers, PeopleSoft sued Oracle for tortuous interference with a contract, based on the alleged harm Oracle's bid caused PeopleSoft's customers. But during his deposition, Conway admitted to Balabanian that statements he made months earlier to Wall Street analysts-that the Oracle bid did not hurt business-were false. He then stumbled over a follow-up question about whether his actions amounted to situational ethics. When the PeopleSoft board learned of the deposition's contents, it fired Conway, which led to another bid by Oracle that the PeopleSoft board accepted, ending an 18-month takeover battle.

Vartkes B. Yeghiayan
Yeghiayan & Associates, Glendale

Mark S. Geragos
Law Offices of Geragos & Geragos, Los Angeles


Brian S. Kabateck
Kabateck Brown Kellner, Los Angeles

The Turkish and American governments may not officially recognize the 1915 Armenian genocide, but the work of these three Armenian-American lawyers-Yeghiayan, Geragos, and Kabateck-makes official denials appear increasingly ludicrous. In 2004 and 2005 the trio and their law firms reached two settlements, of $20 million and $17.5 million, on behalf of descendants of some of the 1.5 million Armenians massacred in the waning days of the Ottoman Empire during World War I. New York Life Insurance Company and Union Life Insurance Company, which is owned by French insurance firm AXA Group, had denied life-insurance claims by Armenian heirs, at least in part because copies of the insurance policies disappeared during the killings. The lawyers are continuing their genocide litigation against other European insurance companies and banks.

Personal Injury

Nancy Hersh
Hersh & Hersh, San Francisco

In June Eli Lilly and Co. agreed to pay $690 million to settle claims filed by approximately 8,100 patients who alleged suffering blood glucose-related side effects, such as early-onset diabetes, after taking Lilly's antipsychotic drug Zyprexa. Hersh, principal in the San Francisco firm Hersh & Hersh, played a significant role in achieving the settlement, which was reached in federal district court for the Eastern District of New York.

Hersh was the first to file a Zyprexa-related personal injury suit and represented 430 individual cases in the coordinated litigation. Her firm served as cochair of the science and discovery committees, which proved critical in developing the plaintiffs' case. Hersh, along with Ramon Lopez of Lopez, Hodes, Restaino, Milman & Skikos of Newport Beach, led four plaintiffs firms in several months of negotiations with Lilly. The master settlement agreement represented approximately 75 percent of the U.S. Zyprexa product liability claims then identified by Lilly.

"Hersh is one of the rare ones," says Jerrold S. Parker, co-counsel in the multidistrict litigation and a name partner in Parker & Waichman in New York. "She was extremely instrumental in making the settlement happen as quickly as it did."

Rick Simons
Furtado, Jaspovice & Simons, Hayward

In a closely watched clergy sex-abuse case brought against the Diocese of Oakland, Simons won $875,000 in punitive damages on behalf of two brothers who were molested by a diocesan priest when they were children. The case was of particular interest to lawyers involved in the hundreds of clergy sex-abuse cases in the state because it was the first to go before a jury for punitive damages-and the verdict demonstrated that a diocese could be held accountable for its priests' actions.

After the award, several other clergy sex-abuse cases immediately settled, and more settlements are expected. Simons also is liaison counsel for approximately 135 other Northern California clergy sex-abuses cases.

Orange County plaintiffs lawyer John Manly praised Simons for his ability to put his clients first, and to work well with other plaintiffs lawyers. "The Oakland case," he says, "is really having a ripple effect on cases not only in Southern California but in other states as well."

Pro Bono

Leo Cunningham
Wilson Sonsini Goodrich & Rosati, Palo Alto

The Eleventh Circuit Court of Appeals in March upheld a landmark $4 million jury verdict on behalf of the family of a victim of the Pinochet regime in Chile. (Cabello v. Fernandez-Larios, 402 F. 3d 1148 (2005).) The case represents the first time an American jury delivered a verdict against a person for "crimes against humanity." Working pro bono, Cunningham was the lead attorney in Cabello and delivered the closing argument in the 2003 jury trial in Florida. "Even though the case gets acclaim as the first-ever jury verdict in this country finding crimes against humanity," he says, "I think the affirmance of the secondary liability theory by the Eleventh Circuit in March is likely to be the lasting contribution of the case to human rights law." The Center for Justice and Accountability in San Francisco and attorney Robert Kerrigan of Kerrigan, Estess, Rankin, McLeod & Thompson in Pensacola, Florida, were also instrumental in the outcome.

Bert H. Deixler
Proskauer Rose, Los Angeles

Deixler served as lead attorney in a 2005 case that brought about the end of a 25-year-old policy of racial segregation in California's state prison system-the largest in the country. (Johnson v. California, 543 U.S. 499.) California had been the only state in the nation that segregated prisoners solely by race for at least two months upon entering custody. Inmate Garrison Johnson first filed a complaint against the California Department of Corrections and Rehabilitation for its segregation policies in 1995. Five years later Deixler and Proskauer Rose began representing Johnson pro bono, and in November 2004 Deixler argued the case before the U.S. Supreme Court. In February 2005 the court ruled 5-3 in favor of Johnson and affirmed that any use of race is suspect and requires strict scrutiny to justify its use. The Court sent the case back to the Ninth Circuit for further examination. (Chief Justice William Rehnquist did not participate.) In December the state of California agreed to a settlement, the terms of which include immediate desegregation of the inmate reception centers-the specific issue raised by the petition to the Supreme Court-and plans to gradually desegregate the entire prison system in phases commencing in early 2007. Deixler was aided by a nationwide team of Proskauer Rose attorneys, including associate Tanya Forsheit and partner Lois Thompson in Los Angeles, partner Charles Sims in New York, and associate Lee Crawford in Washington, D.C.

David A. Lash
O'Melveny & Myers, Los Angeles

In 2003 Lash joined O'Melveny & Myers in the newly created role of managing counsel for the firm's public interest and pro bono services. In just two years Lash, who had served for nine years as executive director of Bet Tzedek in Los Angeles, transformed O'Melveny's pro bono program in California.

Under Lash's stewardship the firm's pro bono hours nearly doubled, from 24,000 hours a year to more than 45,000. Through his leadership, firm attorneys now are involved in the Ninth Circuit Pro Bono Program, the Bell Shelter for homeless military veterans, the Homeless Court program, and the Teen Court program for inner-city youth. Lash was a cofounder of the Los Angeles Pro Bono Council, and as a member of the council he was one of the key organizers of efforts to help thousands of Hurricane Katrina evacuees now living in Southern California. Under the council's program, more than 400 lawyers and law students were trained in the legal issues surrounding relief for the displaced Gulf Coast residents.

Kenneth W. Starr
Dean and professor of law, Pepperdine University School of Law; of counsel, Kirkland & Ellis, Los Angeles

On November 29 Virginia Gov. Mark Warner granted clemency to death row inmate Robin Lovitt, who was scheduled to be the 1,000th person executed in the United States since the U.S. Supreme Court reinstated the death penalty in 1976. Warner had denied clemency in eleven previous death penalty cases. Starr was the lead attorney providing pro bono postconviction counsel for Lovitt and the driving force behind the clemency petition.

Lovitt was sentenced to death in 1999 for stabbing a man in a pool hall with a pair of scissors. DNA tests on the scissors proved inconclusive, but before further tests could be done, the scissors were destroyed by a court clerk in 2001.

"Our failure in the case was to get review from the Supreme Court," says Starr, "so we were then given only one opportunity to save Robin's life, and that was to reconcentrate our efforts on the clemency petition. Our efforts in that respect were as comprehensive and as strategically thought out as our litigation effort."

A total of 95 attorneys worked on the Lovitt case, key among them Ashley C. Parrish and Thomas D. Yannucci of Kirkland & Ellis's Washington, D.C., office and Robert E. Lee Jr. from the Virginia Capital Representation Resource Center. Thomas Kellenberg and his students in the Semester in Washington Program for Notre Dame University were responsible for bringing the case to Kirkland & Ellis in 2000.

Public Interest

Richard B. Ulmer Jr.
Latham & Watkins, Silicon Valley/Menlo Park

Sara Norman
Prison Law Office, San Quentin

Donald Specter
Prison Law Office, San Quentin

In response to a 2002 lawsuit, Farrell v. Allen, brought by the Prison Law Office and Disability Rights Advocates that challenged conditions in the state's juvenile justice system, the California Youth Authority (CYA) agreed to make sweeping reforms in how justice and punishment are meted out to youthful offenders. A stipulated January 2005 agreement calls for a focus on safety, rehabilitation, and therapy. Among other things, the CYA will develop a system to separate vulnerable wards from dangerous ones and provide intensive treatment to those with mental illnesses, create a plan to reduce violence and the use of force, develop a plan for the treatment and management of wards on suicide watch and with other psychiatric problems, hire a qualified medical director, decrease the isolation time for wards, and develop a plan to prevent overcrowding.

Much of the work on the lawsuit was performed by Norman and Specter of the Prison Law Office. Ulmer, a Latham partner, personally billed more than 900 pro bono hours on the litigation. Also contributing pro bono hours to the suit were Latham associates Allyson McKinney (now with the International Justice Mission in Washington, D.C.), Jennifer Scafe (now with the SEC), and Kyra Busby, as well as Jones Day partner Caroline Mitchell.

Paul F. Caputo
Law Office of Paul F. Caputo, San Jose

In a litigation-driven move heralded by disability rights activists, the Santa Clara Valley Transportation Authority last April paid $2.165 million to a disabled woman who was injured when her unsecured motorized scooter tipped over from a sharp turn during a bus ride. The payout came after a jury verdict in Borja v. Valley Transportation Authority (No. 1-01-CV-802902), a case that pitted Caputo, a San Jose private practitioner, against the deep pockets of the county. During the four years before the case was resolved, Caputo fronted more than $75,000 of his own funds.

Rather than taking the usual tactic of attacking the evidence at trial, Caputo challenged the transit agency's policy, which did not require disabled passengers in wheelchairs or scooters to be securely strapped in while riding.

The jury awarded his client, Maria Borja, a Stockton woman with cerebral palsy and other conditions, the sizable amount to pay for lifetime medical care and for pain and suffering from injuries that rendered her unable to live independently. The transportation authority is now adopting a mandatory securement policy for passengers with disabilities.

Securities

John C. Dwyer
Cooley Godward, Palo Alto

In the four years following adoption of Regulation Fair Disclosure in 2000, the SEC brought just a handful of enforcement actions-one of them against Siebel Systems. But just six months after the commission issued a cease-and-desist order in the Siebel case, the SEC alleged that officers of the company violated Reg FD again, disclosing material nonpublic information to several institutional investors.

Rather than settle, Siebel called in the cavalry. In the first contested action involving Reg FD, Siebel outside counsel Dwyer assembled a legal team that included Steven Schatz, a partner at Wilson Sonsini Goodrich & Rosati, and Kathleen Sullivan, who at the time was the dean of Stanford Law School. The attorneys not only argued that Siebel hadn't violated the rule but also challenged the constitutionality of Reg FD and the statutory authority of the SEC to adopt it.

In August a federal court in New York dismissed the SEC's complaint in its entirety, without ruling on the constitutional or statutory issues. (Sec. Exch. Comm'n v. Siebel Sys., Inc., 384 Supp. F. 2d 694.) The court held that Reg FD "was never intended to be utilized in the manner attempted by the SEC" in this case.

William S. Lerach
Lerach Coughlin Stoia Geller Rudman & Robbins, San Diego

It was a very prosperous year for Lerach and his firm's institutional inves-tor clients. Most obvious among the firm's dozens of securities class actions in 2005 were three settlements in the Enron securities fraud class action that benefited the University of California, whose regents were lead plaintiff for investors in the case. In June UC announced a $2 billion settlement with Citigroup and, days later, a $2.2 billion agreement with JPMorgan Chase. In August, UC announced a third settlement, this time a $2.4 billion agreement with Canadian Imperial Bank of Commerce. At the time of the announcement, class recoveries totaled $7.1 billion, exceeding the record $6.1 billion for litigation brought by investors in the WorldCom case.

The total recovery is likely to grow even larger. Among those who have yet to settle are Merrill Lynch, Credit Suisse First Boston, Barclays PLC, Toronto Dominion Bank, Royal Bank of Canada, Royal Bank of Scotland, and Deutsche Bank AG. Most estimates of the economic damages from Enron's massive corporate fraud range between $40 billion and $60 billion.

Lerach has estimated that legal fees would consume 8 percent to 10 percent of the recovery amounts, subject to review by the Houston federal court hearing the case.

William F. Sullivan
Paul, Hastings, Janofsky & Walker, San Diego

In what is considered a major win for the defense bar, Sullivan successfully argued before the U.S. Supreme Court that a claim for securities fraud must specifically include allegations of a direct link between a fall in a company's stock price and the alleged fraud or misrepresentation. (Dura Pharm., Inc. v. Broudo, 125 S. Ct. 1627 (2005).) The unanimous decision is considered one of the most important Supreme Court decisions in securities fraud litigation in more than a decade. By setting a tougher pleading standard for the element of "loss causation," the decision provides companies with an important tool in defending against so-called strike cases filed as a matter of routine when a company's stock price drops. Since the April 2005 ruling, at least 23 securities fraud cases have been dismissed due to the tightened standards, according to Sullivan. "We did not anticipate how broadly the case has been applied," he says. "The case has been cited dozens of times and has been used as a basis for summary judgment in class certification motions to limit the class."

Transactional

Keith Flaum
Cooley Godward, Palo Alto

In 2005 Flaum was lead counsel on more than 16 M&A transactions, including three of last year's largest technology deals in Silicon Valley. He represented Siebel Systems in its $5.8 billion sale to Oracle, Adobe Systems in its $3.4 billion acquisition of Macromedia, and eBay in its acquisition of Skype for up to $3.9 billion. In negotiating the purchase of Skype, a Luxembourg-based start-up with estimated 2005 revenue of $60 million, Flaum led the structuring of one of the largest and most complex earn-out deals in the technology sector. The acquisition-which involved multiple foreign tax laws, two types of shareholder consideration, U.S. and European accounting laws, and the drafting of a detailed, performance-based management contract-had eBay paying Skype shareholders $2.5 billion up front in stock and cash, and up to $1.4 billion more if the company meets certain criteria. "Earn-out transactions are very difficult to negotiate, even when they are based solely on revenue and are a relatively small portion of the overall purchase price," Flaum says.