Three Trial Attorneys

Walter Lack '73:

Litigating for environmental plaintiffs

In the hit feature film, Erin Brockovich, Loyola alumnus and small practitioner Edward Masry '61 needs to enlists a large plaintiff's attorney firm to bring the water polluting electric utility PG&E to the bargaining table. He turns to Walter Lack '73 of the Century City firm of Engstrom, Lipscomb & Lack. In the film, the resulting partnership leads to a winning combination involving some $330 million dollars in settlement for 600 injured plaintiffs who live in the PG&E contaminated California high-desert town.

Despite the film's focus on Julia Roberts' portrayal as the paralegal and pivotal character, the professionalism and widely-acknowledged expertise of Lack and his firm powered the successful outcome of the true-life story.

While still a day student at Loyola Law School in the early 1970s, Lack worked for Santa Fe Railroad on a part-time basis and was injured on the job. He turned to a major law firm to represent him against the railroad. That firm not only won him a settlement but also hired him as a law clerk. Within six months of graduating law school 1973, he started his present law firm with two partners, Paul Engstrom, an established litigator, and Lee Lipscomb, a Los Angeles-based aviation adjuster.

Today, Lack's firm is the largest pure contingency firm in California. There are 30 attorneys and 30 paralegals, along with a very large support staff, sharing the 16th Floor of the Ten-One Hundred building on "Little" Santa Monica Blvd. The firm specializes in complex business litigation, mass toxic torts, insurance bad faith, and aviation litigation.

Lack involves himself in cases at three critical points. First, he meets a client for an initial interview. At the end of the consultation he tells them,"You won't see me until mediation." Lack handles mediation efforts personally and considers mediation skills essential for today's attorney.

If mediation is unsuccessful, Lack is the attorney who tries the case. He spends about 80% of his time in court. The remaining 20% is spent interviewing new cases and attending mediation conferences.

"I take about one out of twenty possible new cases and about half of the ones I take are joint-ventured with prominent firms who also have expertise in large contingency fee cases." Lack's most likely co-venturer is Thomas Girardi '64 of Girardi & Keese, a respected Loyola alumnus.

"These Fortune 1000 companies only hire the largest law firms. Typically they try to paper you to death. By joint venturing we can go toe-to-toe with any law firm in America."

"Tom Girardi and I have spent over four years in trial together in the last seven years. Our styles compliment each other." The fit between the two attorneys is near perfect, resulting in over $1 billion in verdicts and settlements.

Lack describes their give-and-take style: "Typically, I give the opening statement. We split up the cross-examination of defense witnesses, based upon who we want to go after for our own reasons. Often we don't decide until after the witness has testified. Tom has a more free-form style. I have a more organized approach. Our methodology is intuitive, not formalistic."

While Lack agrees that jury consultants are "the vogue," he has never used one. Rather, he tries to tailor his presentation to dial into each juror's life experience.

"For example, it's common to have utility workers and postal workers on a jury. We will try to use examples of how a defendant's conduct was careless in terms that a juror can relate to. We also try to weave our perception of the jurors' background into our characterization of the defendant's behavior."

Lack, like other plaintiff's attorneys, feels juries "have been preconditioned by the insurance industry to look upon a victim, especially someone seeking money, with skepticism." However, he is still positive about a jury's appreciation for the need for contingency-fee representation.

"The contingency fee is the key to the courthouse. Lay people still understand that. The shadow audiences for Erin Brockovich appreciated the fact that corporations could hire lawyers at $400 an hour and the only way to go against them was with a contingency fee set up."

Lack clarifies that pursuing a class action lawsuit is different than representing a large number of individual clients. "In California, in a class action suit, a judge will determine your fees and you have no control. In separate cases involving a multitude of people, as in Erin Brockovich, there's usually a contractual arrangement. You either win or lose and are compensated based on that."

The risks in class-action suits can be daunting. "For every ten actions brought, only one gets certified. To get to that point of certification takes a lot of effort and it may not work out."

Lack explains that court procedural matters and attorney compensation limits have put entire areas of litigation beyond the practical range of would-be plaintiffs. "The MICRA Act put me out of business in the medical malpractice area. I've only done 2 in the last 20 years. Under this California statute, no plaintiff has received 100% compensation no matter how serious the injury."

Among the most prestigious trial attorney memberships Lack holds is being a Fellow of the International Academy of Trial Lawyers, one of only 10 members in California. Lack is also a prominent member of ABOTA, the American Board of Trial Lawyers of America. Lack sees his membership in trial attorney organizations as a means to oppose what he views as an ongoing effort to limit the right to trial under the guise of tort reform. Among ABOTA efforts is a major CD ROM interactive program that teaches grammar school kids how our civil justice system works.

For Lack, the greatest challenge in the courtroom is to get the average juror to appreciate the level of damage suffered by a typical plaintiff. "Jurors have a difficult time compensating for the intangibles such as pain and sufferings."

Lack feels that the substantial result in the PG&E case were based on the jurors' reaction to the bad facts. "Jurors reacted against the behavior of PG&E. PG&E officials knew about the contamination, didn't disclose the problem to the water board, and then lied about it. So? A jury faced with those kind of facts generally will look past a difficult causation issue."

"PG&E had world-class doctors saying that those cancers couldn't be caused by those chemicals. We had doctors who said the opposite. That 'battle of experts' was resolved because of PG&E's overall bad behavior."

Lack considers where his career had taken him and is pleased with his plaintiff advocate role. "I used to defend a lot of these big corporations for years. It wasn't any less lucrative, but it was certainly a lot less fulfilling. You were lucky to get a pat on the back. From the perspective of corporate America that's what you were hired for."

"When you do plaintiff's work on a daily basis, you can affect your client's life in a favorable way. You become the most important person aside from spouses and children if you can give the client economic freedom. They're already disadvantaged. For example, I've represented a little boy paralyzed from the neck down. He'll be dependent for everything on an around-the-clock basis. If I can give him the chance to finish his education and not worry about housing and food for the rest of his life, I feel good."

"These Fortune 1000 companies only hire the largest law firms. Typically, they try to paper you to death. By joint venturing, we can go toe-to-toe with any law firm in America." - Walter J. Lack on mass tort claims