The Litigators
by Paul Bernstein
harles Vogel '59, a litigator with Sid-
ley & Austin, likes to tell the story of
the policeman in Central Park who
observes a man throwing bread
crumbs on the sidewalk.
"If you read the sign, sir, it says, 'Do
not feed the pigeons,''' says the policeman.
"I'm not feeding the pigeons," says the man, sum-
moning indignation. "I'm feeding the sparrows. And
I can't help it if the pigeons are horning in."
To which the policeman can only shake his head
and mumble the familiar refrain: "Everybody's a
lawyer."
Eminences as gray as Chief Justice Warren Burger
have been joining in on the refrain of late, pointing
out that we have more lawyers per capita than any
country in the world while our law schools continue
to produce more and suggesting that perhaps the time
has come to levy penalties on lawyers who insist on
pressing "truly frivolous" cases.
A sampling of top litigators from the list of UCLA
School of Law alumni finds little argument that there
is too much litigation, some of it frivolous. But six of
the nine represented here consider themselves com-
merciallitigators, and find that field remarkably free
of the excesses noted elsewhere. One reason is its
complexity.
"It's hard for me to imagine how a judge or jury
could understand in six to ten weeks all the details of
how a digital computer is constructed and how the
industry works and what the economic effects are of a
particular move," says Thomas McDermott '58, a
litigator with Kadison, Pfaelzer, Woodard & Quinn
who managed to learn all that himself while prepar-
ing to try a massive case in the late 1960s involving
computer system design. "After you've been working
on the case for three years, you and the lawyer for the
other side know more about the case than any human
being is ever going to know. So if you can't settle it,
6
there's either something wrong with the lawyers or
there's something wrong with the client or there's
some principle at issue that has to be resolved or it's a
very, very close question. And even close questions
can be resolved and compromised. I think that most
good commercial litigators get their cases settled.
They do it because both sides clearly understand the
risks involved and arrive at a figure that is a rea-
sonable compromise."
The intricacies are what make commercial litiga-
tion a challenge for McDermott, a past president of
the Association of Business Trial Lawyers. For in-
stance, he currently represents a developer of large,
independent communities in several consumer pro-
tection cases, for which he has had to delve deeply
into the law of municipal finance and organization.
He represented the Retail Clerks International As-
sociation in an effort to place Washington's local 770,
then the largest local union in the country, in a
receivership, a case he remembers for its complexity.
McDermott spends most of his time on motions,
depositions, document production, and structuring
of litigation and settlements.
"I could not function without what I learned in law
school,' he says. "At least when I went to law school,
I thought it was taught just the way it ought to be
taught."
Occasionally he wishes he could be in trial more
often. "You're sort of betwixt and between," he says,
not too wistfully. "On one side you say, 'Sure, I'd like
to have more trials.' But would I really be doing the
job I'm supposed to if I had a lot of trials? The answer
to that is no, absolutely not. To resolve a case and
settle it fairly should, in my opinion, be the aim of the
commercial litigator."
Paul Bernstein, a free-lance journalist, has written for The
New York Times Magazine, Los Angeles Magazine, New
West, and other periodicals.
Thomas McDermott '58
Commercial litigators get to trial so seldom that
some do not even consider themselves trial lawyers.
Says Marsha McLean-Utley '64, a litigator with Gib-
son, Dunn & Crutcher and the incoming president of
the Association of Business Trial Lawyers, "1think we
are a different breed than lawyers who do a lot of
personal injury work, and their recognition of that is
that they have formed their own association." As one
of six partners working on six distinct issues of
Memorex v. IBM, which lasted six months, McLean-
Utley became a computer authority; while working
on litigation that grew out of the Baldwin Hills dam
disaster several years ago, she had to learn a great deal
about oil drilling and geology.
It's not just sweet dispositions that enable commer-
cial litigators to settle more often than litigators in
general. "In a commercial business entity," explains
McLean-Utley, "management quickly realizes that it
is not just the attorney fees they're spending. A great
many of their employees and management people are
spending their time on litigation to the exclusion of
managing the business and making a profit. So they
are much more inclined to concentrate on attempting
to resolve their strengths and weaknesses and achieve
a compromise so thev can go back to doing the busi-
ness they're best qualified for. For a plaintiff in a
personal injury action. it's more and more difficult to
achieve a settlement because everybody is looking at
that possible $4 million punitive damage."
McLean-Utley suggests that commerciallitigators
have learned one thing that might help other litigators
settle more often-"making sure the client is aware
not only of the strength in his case but of the weak-
nesses, from the beginning, and making sure the
client is aware of the risks.
"1 think law school gave us all the requisite proc-
esses to get prepared, but it's important to have some
on-line experience in the fundamentals of trial proce-
dure:' she says.
After graduating from UCLA School of Law,
McLean-Utley spent a year as a swing clerk for Jus-
tices Roger Traynor and Matthew Tobriner of the
7
Marsha Mcl.ean-Utley '64
California Supreme Court. There she saw the genesis
of a philosophical shift that has had widespread
ramifications. "I thought Tobriner was one of the
finest men I ever had the privilege of knowing and
Traynor was also a very serious jurist. Tobriner was
very warm, very compassionate, had a great heart, a
great feeling for people who were less advantaged and
believed that those in society who had advantages
owed an obligation to the less advantaged. Matthew
Tobriner was a very strong believer that one of the
functions of the judicial system was to provide reme-
dies for persons who had suffered losses. Spreading
the risk is an old tort concept, but now we're seeing
more and more causes of action being developed. As
a practicing lawyer, I am distressed to find that legal
princi ples which I believe had substantial policy
reasons for their initial creation and enforcement for
many years are being whittled away out of a desire to
enlarge and provide greater vehicles for recovery."
Charles Vogel has also seen litigation from both
sides of the rail. As a Municipal Court judge in
8
Pomona and a Superior Court judge in Los Angeles
with a tour of duty on the Court of Appeal, he wrote
the opinions in the Onion Field and Manson-Tate-La
Bianca cases. Now back in private practice for five
years, he finds the advantages to a practicing lawyer
of having served on the bench exaggerated. "I think
it's believed to be a greater advantage than it is. You
have some insight into what it is the judges are
looking for, although I know of lawyers who seem to
have obtained that insight without ever having been
on the bench."
In 1977, he left the Superior Court to join Nessa-
man, Krueger & Marsh-and, within five weeks, was
in court on a highly publicized challenge to Califor-
. nia's usury laws, later made moot by the passage of
Proposition 2. While with that firm, he successfully
defended Judge Paul Egly against an attempt by
Bustop to disqualify him in the Crawford case and
became involved in a number of environmental
litigation cases. He joined Sidley & Austin in 1980,
and there continues to pursue his environmental

Charles Vogel '59
interests as well as participate in their entertainment
law work.
"As I listen to myself, I've had a fairly eclectic kind
of practice," Vogel reflects, in a deliberative, no-
nonsense style that must have terrorized unprepared
lawyers when he was a judge. "I seem to have fol-
lowed a pattern that I had on the bench, which was to
have the opportunity-which I think really makes
the law an exciting career-of learning something
about a lot of things. I guess that's contrary to the
contemporary view of what lawyers should be
doing -specializing."
Fresh out of UCLA School of Law in 1955, Vogel
quickly discovered what his books on evidence had
left out. In his first case, he went to trial not knowing
that the prosecutor had a signed confession from his
client to a charge of oral copulation. Unfazed by this
slight setback, Vogel began to call his witnesses-an
illumination engineer, an ophthalmologist, and a
meteorologist-and argued that, under the lighting
and weather conditions present when the crime oc-
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curred, the arresting officer could not have seen what
he said he saw. The jury voted 11-1 for acquittal and
the district attorney dismissed the case. But Vogel
found, after paving his expert witnesses for their
time, that he had learned another valuable lesson. He
had used up his entire fee on the witnesses.
William Vaughn '55, a litigator with O'Melveny &
Myers, had a similar learning experience in assem-
bling evidence. While working his way through law
school as a private investigator, he was assigned to
investigate an accident in which a worker fell into a
supposedly unbarricaded hole on government
property. The worker claims the accident had oc-
curred at night, that the area was improperly lighted,
and that his attention was distracted by a baseball
game on the adjacent field. The enterprising young
Vaughn made a few phone calls and discovered that
the baseball field had no lights. He rushed into the
boss's office to announce that he had broken the case
open, that the accident could not have occurred at
night if the man was watching a baseball game on the
9
William Vaughn '55
unlighted field.
"Who gave you the information?" asked the boss.
"Some guy up there I talked to at the Air Force
base," answered Vaughn.
"Well, how are you going to prove it in a court-
room?" Says Vaughn, now older and wiser, "I stopped
and I realized immediately that you have to have the
names of witnesses and you have to be able to estab-
lish the circumstances. It was a bitter lesson."
He credits his experience as a private investigator
with teaching him how to assemble evidence, and
laments the fact that many law students today deny
themselves that kind of training. "That's the way the
game is played today. Law students look for summer
jobs in the hope of attracting attention for ultimate
employment. It wasn't the case back then."
A full bookcase in Vaughn's downtown office is
filled with transcripts of the lOO-day trial he con-
ducted in Transarnerica Computer Co. v. IBM, now in
appeal. At the end of seven months in San Francisco
federal court, representing IBM, Vaughn says he had
10
determined once and for all his physical and intellec-
tual limits. Those limits have also been tested on
behalf of CBS, when the Smothers Brothers sued
(unsuccessfully) over cancellation of their television
show. Vaughn has been with O'Melveny & Myers
since he graduated from law school, with the excep-
tion of a stint in the Army. (His draft notice and the
notice that he had passed the bar arrived in the same
mail; "I went out and got very drunk, and to this day
I don't know what the principal motivating force
was.") He describes his original job interview with
O'Melveny & Myers as "love at first sight," an evalua-
tion that has not apparently dimmed. "One of the
things I like about the practice of law here is that
basically all of us who do litigation feel that the
fundamental skill is advocacy and that it can be
applied in many different areas."
Benjamin E. "Tom" King '56, a litigator with Buch-
alter, Nemer, Fields, Chrystie & Younger, has also
applied his advocacy skills in many different areas of
commercial litigation, including unfair competition,
Benjamin E. "Tom" King '56
trade secrets, computer technology, fraud, defaulted
loans, and eminent domain. In his spare time, he has
written articles on travel and the outdoors for such
publications as Travel, Sport, Summit, and Carte
Blanche, as well as a book on mountaineering, In the
Shadow of the Giants, published last year. He is
currently at work on a mountaineering accident case
he thinks may be the first such case ever brought in
this country by one private party against another (as
opposed to a landowner, a school, or a manufacturer).
His client is accused of causing injury to the plaintiff
by knocking a rock loose.
Though King, partly because of congested courts,
no longer tries even the six cases a year he used to, he
concedes that the country is litigation-happy. "This
town is litigation-happy. They have causes of action
now that probably scarcely existed when we were in
law school. Class actions, securities act violations,
product liability have been extended over the years.
Plus, in a large city, you have the natural tendency of,
'To hell with you, I'll sue you!' I'm not saying it's
wrong, but it's happened. In Japan, as I understand it.
they don't have too many lawyers and it's traditional
not to litigate your disputes. I think they stick to their
agreements. I think they consider it somewhat of an
embarrassment to have to litigate their disputes,
whereas here it's no embarrassment at all. I think
lawyers have an obligation, which we sometimes
default on, not to file cases that don't belong. But
who's to judge that? A big city like Los Angeles tends
to be not founded so much on traditional values.
There's a lot of new people coming through and
people moving, so there's no particular inhibition
about suing your neighbor, because you don't know
your neighbor."
The big city of Los Angeles has the entertainment
industry to keep litigators like Kenneth Kulzick busy.
Kulzick '56, a litigator with Lillick, McHose &
Charles, is a retained West Coast counsel for ABC. He
is currently representing both NBC (in a suit brought
by Wayne Newton against the NBC Nightly News for
defamation) and CBS (in a suit brought by Lawrence
11
Kenneth Kulzick '56
University against 60 Minutes for defamation and
trade libel). For 14 years, he has screened Rona Bar-
rett's broadcasts before they aired and says that the
only times she has been sued he was-fortunately
or unfortunately-out of town. He did the legal
clearances for Stanley Kramer's Judgment series, for
Attica, and for Friendly Fire. And he currently
represents Lucasfilm in a lawsuit involving Raiders
of the Lost Ark.
Show biz has clearly rubbed off on Kulzick. "You
got me at a bad time," he moans, without evident
anguish. "The first time in 25 years I've lost a prelimi-
nary injunction." The preliminary injunction pro-
hibited further showing of the film Great White
because of the "significant likelihood" that it would
be perceived as "substantially similar" to Jaws, but
Kulzick had his comeback all ready for the press: "It
was a definite case of overbite." In his office is a
videotape machine and a bookcase full of tapes from
ABC. The current attraction is a videotaped deposi-
tion from an underworld figure Kulzick made for an
12
upcoming trial. "If you write anything," says Kulzick,
"be absolutely certain my wife Patricia-that beauti-
ful redhead over on the bureau-gets full credit."
Leaning back in his chair and pointing to a plaque
from last year's First Amendment Congress in
Philadelphia and Williamsburg, he says, "I am what
they call basically a First Amendment lawyer. I have
been for 20 years representing what I consider to be
freedom of expression-that is, going against people
who attempt to narrow rights of expression."
Florentino Garza '56, of San Bernardino, has made
no efforts to limit his interests. A member of the
International Academy of Trial Advocates, he does
tort litigation, probate and will contests, water and air
pollution, contested elections, products liability,
medical malpractice, and personal injury. While per-
sonal injury makes up 75 percent of his practice, he
has also served since 1976 as special counsel for the
state of Texas to determine, for tax purposes, Howard
Hughes' domicile at the time of his death. He repre-
sents a San Bernardino city councilman who won
Florentino Garza '56
election three years ago as a write-in candidate by a
margin of three votes, had five votes deducted by a
court challenge, and is now pulling out all the stops to
reverse that decision. In the meantime, the candidate
has almost finished serving his four-year term, but
Garza believes important questions about the use of
absentee ballots warrant pressing for a full resolution.
Last year, Garza's name was prominently mentioned
for nomination to the California Supreme Court.
But it's personal injury that Garza still finds most
interesting. "It has certain rewards, not only
financial, but really it's a reward of satisfaction when
you find that the economic life of an injured party is
more secure by virtue of your services." The cases he
handles are not repetitive fenderbenders, he says.
"The tort area of the casualty field is as broad as you
can stretch it."
Some, like the nation's Chief Justice, suggest that
field has been stretched too far. "I disagree," says
Garza. "I think a measure of any civilized society is
the way the laws take care of injured and disabled
people. That is not to say that everyone who is injured
is automatically entitled to recover. But it means that
if there is a legitimate basis under our law to incur
recovery based upon culpable conduct or, as in prod-
uct liability, a corporation placing defective products
in the stream of commerce which injure a user, 1think
there is a logic, I think there is a justice in seeing that
the injured party be properly-not unreasonably, but
properly-compensated."
When asked about his big cases, he does not assign
them dollar values, but rather cites two that had
socially significant outcomes. In one, he won "mod-
est" damages for his client and an abatement order
from the attorney general to clean up an environmen-
tal disaster in Barstow. In another, he won compensa-
tion for a young woman left paraplegic in an accident;
the woman went on to become director of the cardiac
department at a Los Angeles hospital.
Lee Wenzel '57, a founding partner of Morgan,
Wenzel & McNicholas, has, until recently, been on the
other side of personal injury cases, as a defense
13
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Lee Wenzel '57

lawyer. Now, however, his practice includes plaintiff
work as well. "I like to try plaintiffs' cases," says
Wenzel. "They keep you on your toes. Both my part-
ner and I have been criticized by the insurance in-
dustry [for doing both]. Perhaps there are some
companies that would not retain us on the theory that
we don't have their best interests at heart. But now
people are a little more philosophical."
Such criticism has not kept insurance companies
from providing the bulk of Wenzel's work, along with
most of the big drug companies, Remington Arms,
and General Telephone. Wenzel has five lawyers
working full time just on discovery for an asbestos
case involving the Armstrong Corporation and
another four on litigation arising from the fire at the
MGM Grand Hotel in Las Vegas. He is a member of the
International Academy of Trial Lawyers and a past
president of the American Board of Trial Advocates.
As an alumni representative on the University of
California Board of Regents, he devoted as much as
40 percent of his time to University affairs.
Wenzel describes his courtroom style as sincere
and low-key, though he will admit to some theatrics
like facial nuances and an effort to "emote." "As a
rule, I am cordial to my opponents and their clients.
Some of the nastiest lawyers in town are some of the
most respected. That's not my style." Nor is it his style
to flaunt his big verdicts. "You go into some lawyers'
offices, they'll have a picture of a big check. I've never
done that. It is a barometer, but I've lost some big cases
and I'm not ashamed of it. You find a lawyer who's
never lost a case and he's probably not taking the
hard ones. I'd rather try a hard case than one that's a
slam dunk."
Alan Halkett '61, a litigator with Latham & Watkins,
disagrees with some of his colleagues in commercial
litigation that the field is immune to excesses. "I think
there is far too much litigation. And I think it's true in
the commercial field as well. The stockholder invests
$50 a share in a hundred shares and five years later
they're worth $10 a share so somebody ought to pay
for it. I don't mean there are not legitimate instances

14
 Alan Halkett '61
where stockholders have been fleeced, but I do be-
lieve there are certain risks that are inherent in it and
if you are unsuccessful in a business venture, some-
times you say, 'That's the way it goes.' Everybody
seems to think there's a reason why they failed or lost
money."
He does feel, however, that making a distinction
between the terms "litigation" and "trial" might
clarify the process of resolving disputes. "There is
perhaps a common conception that litigation and
trial are the same thing. They are not. The litigation
process itself, short of trial, is part of a legal process
which leads towards the resolution of disputes. And
.that process is an interesting and somewhat con-
voluted one. The litigator's role very often is to ex-
amine the dispute, dissect the dispute, and give to
both sides a more objective view and sometimes an
imaginative solution to the dispute."
A past president of the UCLA Law Alumni Associa-
tion and a member of the Chancery Club in Los
Angeles, Halkett specializes in such commercial liti-
gation as securities, mergers, and takeovers. He re-
cently represented the Federal Home Loan Bank
Board and the Federal Savings and Loan Insurance
Corporation in litigation arising from their takeover
of Fidelity Savings and Loan in the San Francisco
area. He represented Continental Airlines in their
takeover bid for Texas International and PSA in their
takeover of Valhi. He spent ten months in Federal
District Court in Los Angeles representing Capitol
Records in what he thinks was "the first stockholders'
open market purchaser class action case ever tried."
Can litigation skills be taught? Halkett thinks more
emphasis on communication and advocacy skills-a
problem he says starts long before law school-could
help. But there are some aspects of litigation only
experience can teach, primary among them the ac-
quisition of a thick skin. "There are some people who
take very seriously any rebuke. If you can't walk away
from the courthouse and forget it, you cannot live in
the environment of litigation." That, he says, is some-
thing no law school can anticipate. 0
15
 UCLATHE MAGAZINE OF THE UCLA SCHOOL OF LAW

LAW VOL 5, NO 3 SPRING 1982

,.
I{:

'11

Susan Westerberg Prager

The School's New Dean