100 Most Influential Lawyers in California

Los Angeles Daily Journal

To Win, 'You Can't Fear the Prospect of Failure'
October 4, 1996

Name: Walter J. Lack

Name of Firm: Engstrom, Lipscomb & Lack

Location of Firm: 10100 Santa Monica Boulevard, 16th Floor, Los Angeles 90067

Education: Loyola Marymount University (J.D. 1973); Loyola Marymount University (B.A. 1970).

Affiliations: U.S. Supreme Court, 9th Circuit U.S. Court of Appeals, California State Bar, Association of Trial Lawyers of America, Consumer Attorneys of California, Los Angeles Trial Lawyers Association, International Academy of Trial Lawyers and Los Angeles County Bar Association.

Publications: "Spoliation: A Defense Perspective," Consumer Attorneys of California Forum (January 1996). "Formulating a Defendant's Discovery Plan in a Mid-Air-Collision," Southern Methodist University School of Law, Journal of Air Law and Commerce (Vol. 47, No. 4, 1982). "The Availability of Strict Liability in the Excess Judgment Case," California Trial Lawyers Journal (Spring 1973). "The Anatomy of a Federal Employer's Liability Act Case," California Trial Lawyers Journal (October 1972).

Length of time practicing law: 23 years

Types of cases: Complex civil litigation (plaintiff and defendant) in both federal and state courts, with a primary emphasis on toxic torts, construction defect, insurance bad faith and professional liability cases.

Background: Born in Los Angeles the son of a vegetable farmer, Lack knew as early as eighth grade the he would become a trial lawyer. He majored in French and English at Loyola Marymount University in Los Angeles, where he was active in the Alpha Delta Gamma fraternity and played varsity volleyball for four years. He started his current firm with Paul W. Engstrom and Lee G. Lipscomb just six months after his graduation from Loyola Law School. "I suppose the only explanation for my choice of careers is the fact that the business is so interesting and exciting and that no two days are ever the same." Lack has extensive experience in dealing with expert witnesses. "Proper utilization of experts in the cases I handle determines every time whether the results are successful or not. Hiring the expert is one of the few things I will not delegate to an associate in any large case." In certain types of cases, the subject matter is "so arcane that there are only a handful of true experts" in the field. In these situations, "we actively look for the world's best expert in those arcane fields before we even file suit."

Keys to success: Lack believes that "the best lawyer usually wins and that juries reward those who are prepared and totally confident of victory." Comparing his work to high-stakes poker, his favorite game, Lack adds: "You cannot do this work and fear the prospect of failure." Lack also feels that his experience as an expert witness gives him an advantage over most lawyers in dealing with experts. "I have personally testified over 250 times as an expert witness in either legal malpractice or insurance bad faith cases."

Favorite trial moment: One memorable trial moment occurred in an insurance broker malpractice case. Lack represented a small business that claimed it would have grown into a multimillion-dollar operation over a period of five years if the defendant had been more careful in its selection of an insurance company to underwrite the plaintiff's business risks. While the jury was studying a 50 foot square board containing hundreds of numbers and projections, Lack noticed that the key expert had made a major error in his analysis and had actually accounted for federal and state taxes twice, thereby decreasing the potential award by $5.5 million. "There was no graceful way to call the error to his expert's attention outside the presence of the jury." Lack remembers. Without any warning to my expert, I asked him if he was man enough to admit a mistake in his calculations if it could be demonstrated that there was one. He naturally said 'yes.'" Lack then asked him if his calculations included two deductions for the impact of taxes. "After a long pregnant pause, the expert turned to the jury, smiled, and said 'yes, I made a $5.5 million mistake in the calculations and the number really should be $17 million.'" The jury awarded Lack's client $17 million. "I must confess, in my entire career I have never made more money with less effort solely as a result of a mistake that my expert made."

Practice Pointer: Lack offers this practical advice concerning expert witnesses: "Good experts are generally in high demand. Lawyers who act like they own the expert's time are in for a rude awakening if case materials are not sent to the expert at the earliest possible time." Lack also emphasizes the paramount importance of an attorney's first interview with an expert. "When you first meet an expert he does not know you, and what you see is what you typically get on the witness stand. There are many well qualified experts who are fearful of the legal process, naturally bashful or unable to communicate their ideas clearly through simple language."

Use of experts in toxic tort cases: To Lack, a toxic tort trial is "the classic battle of experts. The stakes are generally so high that neither side spares any expense in the preparation of the case." Proving exposure to toxic chemicals requires experts from many fields. For cases involving underground pollutants, "you will need to hire a chemical engineer, geologist, hydro-geologist, computer modeler, well-digger, testing laboratories and any number of other specialists in fluid dynamics." For airborne pollutants, "you also need to retain meteorologists, experts on particle distribution air-quality engineers and chemical engineers." Proving exposure to a toxic chemical is merely the first step, Lack explains. At that point, the attorney faces the "even more daunting task" of establishing causation and damages. "While the government establishes broad guidelines establishing permissible safe levels of exposure to toxic agents, the methodology for establishing these standards and guidelines is extremely crude and based upon assumptions which are incapable of proof except through human experimentation. Since using humans for such experiments is "both illegal and unethical, science uses animal studies or epidemiology to learn more about causation." Lack cautions lawyers working in this area to be aware of the difference between legal proof and scientific proof. Such lawyers "have a heavy burden of educating expert witnesses on the concept of proof and causation. nothing in science is established as a 'fact' unless the certainty level is at least 95%." Lack finds the toxic tort area exciting "because of the uncharted nature of the issues which present themselves." He believes toxic tort cases provide "a wonderful opportunity for young lawyers to be exposed to the variety and complexity of technical and medical issues." Nevertheless, he warns that the field may not be for everyone. "With the possible exception of antitrust litigation, there is probably no other type of case in the law that typically has the massive outlay of costs which a toxic tort case has." Prosecuting a toxic tort case requires "vast resources and unlimited staying power."

Personal: Lack and his wife, Barbara Lack, a dentist, have been married 26 years and have two sons, 17 and 19. The family resides in Encino. Lack's hobbies include golf, deep-sea fishing, snow-skiing and gin rummy. He is also a member of the Plantation Golf Club in Indian Wells.

What other lawyers and judges say about this attorney: Thomas Girardi, of Girardi & Keese in Los Angeles, says Lack is "the finest lawyer in Los Angeles-end of report."

THE CASE
Water Contamination Fetches Residents Millions
On July 1, 1996, a seven-month arbitration/medication resulted in a $333 million settlement against a California utility. The plaintiffs, 600 residents of a small desert town, claimed that the defendant contaminated their ground water by using chromium in its nearby plant and then dumping the chromium into unlined ponds (case reported July 12, 1996, p. 4). The plaintiffs were represented by Walter J. Lack, of Engstrom, Lipscomb & Lack in Los Angeles and Thomas V. Girardi, of Girardi & Keese. The plaintiffs claimed that the defendant knew that the contamination reached crises levels and that the defendant knew of the seriousness of the problem for 25 years, but did nothing about it. The plaintiffs claimed numerous injuries, including various types of cancer and various digestive disorders. The defendant denied that chromium caused any of the plaintiffs' medical problems. During the course of the litigation, 78 expert witnesses were either called or deposed. Experts in geology, well-drilling, hydro-geology, fluid dynamic, cooling tower design, cooling tower particle size and distribution, meteorology, aerial photography, agricultural water consumption, chemistry and biology testifies concerning the amount of chromium released and where it went throughout the various aquifers supplying domestic water to the plaintiffs. Experts in epidemiology, oncology, molecular biology, toxicology, internal medicine, inflammatory bowel diseases, pulmonary disease, autoimmune disorders, teratology, genetics, neurology, neurotoxicology and dermatology testified concerning causation and damages.