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From Verdicts &
Settlements
"Movers and Shakers"
Law Firm Profile by Niccol Kording
Flash back to the spring
of 1975. It's Los Angeles and the legal profession is booming. UCLA is set
to graduate another class of future lawyers, including young John Golper, ready
to embark on his chosen path - labor law. In fact. he chose UCLA because it
had three solid labor law professors who were not taking sabbaticals - and
he chose labor law before he even started school. "I was drawn to labor law
when I was still in college," says Golper. "I had to come up with a topic for
my honors thesis.. .and found a professor who had a research grant, so I was
able to earn money while researching my paper."
Who would have known that Golper would go on to become a prominent labor lawyer
? "He's as good a labor lawyer as you'll find in the practice," says Bruce
D. May of Stradling, Yocca, Carlson & Rauth in Newport Beach. "He's good, not
just with the technical points of law, but also with good sound strategies,
which you need as a labor lawyer - especially with unions." In fact, the California
Department of Fair Employment and Housing, the state administrative agency
charged with overseeing employment discrimination claims, even tapped Golper
to defend the Department when one of its district administrators filed a discrimination
claim against the agency. But Golper has not always represented management.
He also represented unions when he first practiced. "I don't think just because
I'm pro-employer, I'm anti-employee," says Golper. "I think that, by and large,
employers are well meaning. For example, I think the employer should be able
to determine the qualifications for its work-force, and I don't think a jury
should second guess that."
Flash forward to May, 1994. The legal profession, though still growing, is
past the boom of the 1980s. In another part of Los Angeles, Douglas N. Silverstein,
a Whittier Law School student, gets ready to graduate and pursue his career
- a path he chose after growing up in Ohio, where his father owns a structural
steel business that employs union labor -labor and employment law. So why management
over employees? "I believe that I can make more of a difference as a lawyer
by keeping employers informed about their obligations and responsibilities
than by representing a single plaintiff," says Silverstein.
Not only has the practice area developed a whole new name, but it has also
changed its focus. "I'm one of those lawyers who came out of law school in
the 70's and when you became a labor lawyer, you dealt with unions," says Golper,
a partner at Ballard, Rosenberg & Golper, a labor and employment law firm in
Universal City, California. "Now everything in the area of employment litigation
is primarily jury trials with big monetary exposure that you didn't see when
I got out of law school." Golper remembers when the main cause of action in
an employment discharge case was for breach of contract, in contrast to the
numerous tort actions now brought. For Silverstein, a fifth-year associate
at Ballard, Rosenberg & Golper, the field has always been labor and employment
law. "But within labor employment law," he says, "there are numerous specialties."
Some of them include employment discrimination, wage and hour, and traditional
labor law, among others. "We represent management in labor and employment matters
and related litigation," says Silverstein, adding that the firm's practice
includes a preventive side as well - as advisors and counselors to their clients
- to help them avoid litigation by taking prophylactic measures to eliminate
potential liability.
Flash forward again to May, 1999, present day Los Angeles. In Universal City,
at the law firm of Ballard, Rosenberg & Golper, a 25-lawyer firm with nine
partners, a partner and an associate are discussing a case. They appear to
be arguing - or strategizing. It's not possible to determine who the partner
is by their tones. So, what makes the relationship between this young associate
and partner special?
"When we're together, it's a real free flow of ideas with respect to strategizing,"
says Silverstein. "When we work on cases, we sort of strategize out loud..
. .that allows us to come up with the most creative and best [ways] to serve
our clients' needs." Golper agrees. "Doug [Silverstein] reminds me of myself,"
he says. "I had a goal as a young lawyer that I wanted to be the person who
made partner at the youngest age in the law firm, and I knew that the only
way [I] could accomplish that was to work [my] tail off, absorb as much as
[I] could from the very good, experienced lawyers whom [I] worked under - and
I also knew it was going to take a lot of work."
Golper says that Silverstein is the same way. "Doug [Silverstein] is someone
I can rely on," adds Golper. And because of that, Golper has taken Silverstein
under his wing. "I've taken on associates here and there [whom] I have mentored,"
says Golper. "?That's how it was when I started." And that's how it is at Ballard,
Rosenberg & Golper today. The value to the client, adds Golper, is that a good
lawyer trains another lawyer to become a good lawyer. "Litigation is aggravating
enough, and, even though we fight for our clients' rights, it's a pleasure
to deal with a professional law firm such as John's [Golper's], and Doug [Silverstein]
is learning from John [Golper] in the same capacity," says Michael Calof of
Michael Calof, Inc. in Woodland Hills.
May, formerly with Golper in the Parker Milliken firm, agrees. "[ Golper] was
really a mentor to me during my early years. Now we're colleagues." He adds,
We're both management attorneys." May's respect for Golper reflects that tutelage.
[Golper] was great," adds May. "He not only helped me grow, but I saw him grow
tremendously." That's important because Ballard, Rosenberg & Golper is client-driven.
And it is that "client first" attitude that shapes the firm's approach to litigation,
motions, settlement and all aspects of labor and employment law. Whenever you
get a case, you have to look at what your client wants, says Golper. Sometimes
the case has to be litigated because there is a company policy that is challenged
that you have to defend, but if it can be resolved through summary judgment
or a beneficial settlement, Ballard, Rosenberg & Golper will do what needs
to be done. They do so, according to Golper, because "it's cost effective for
clients." Silverstein echoes those sentiments. "Early on, we ask our clients
how they define victory," he says. "Is victory spending $250,000 on defense
costs and getting a defense verdict, or is victory spending $10,000 early on
to settle the case? It's up to the client to make that determination." When
the client chooses litigation, Golper and Silverstein, among others in the
firm, are ready to fight for the client. But employment litigation has changed.
Once a specialty limited primarily to labor and employment lawyers with expansive
labor backgrounds, it's now a tort practice where many personal injury attorneys
are willing to venture.
"You've got very good personal injury lawyers doing employment litigation,"
says Golper. "It's high stakes litigation these days." Although he does not
doubt the ability of personal injury lawyers to try complex employment disputes,
he does see a value in being represented by a firm that has a well-rounded
background in the labor and employment setting. "It's not a situation of making
the jury agree with you, but making them understand what you did."
For that, he believes a labor and employment background gives his firm an edge
in this type of litigation. He also thinks that because employment law is his
firm's only focus, they know the area, and they know it well. "If we go to
lunch and talk about our litigation cases, we are talking about nothing but
employment cases. It's all the same thing - over and over - it's all employment
litigation," he adds. Because we are just completely focused in the employment
arena, I think that distinguishes us from other firms."
Silverstein agrees. "These days, a lot of firms are jumping into the employment
litigation arena and holding themselves out as employment litigators," he says,
"but we are more than just that."
Both Silverstein and Golper tout the firm as more than just litigation. "We
have the full range of labor and employment services," says Silverstein. "There
are those of us who litigate more than others, but our whole approach is interdisciplinary.
A trial causes havoc for clients," he says. "It's expensive and it ties up
a lot of people."
To avoid that havoc, Golper's firm has developed what would appear to be a
three-pronged approach to client representation - prevent, summarily dispose,
litigate. "Our whole philosophy is that we're here to come up with creative
solutions to problems, not create problems," says Silverstein. ?What we do
really matters," he says. "It makes a difference - it can sometimes make a
difference between an employer continuing to function and going under. We can
directly see the benefit we provide our clients ? whether by preventing potential
litigation or resolving existing litigation on terms favorable to our client.
Others pay preventative work lip service," says Silverstein, "but we actually
implement policies and procedures for our clients and render advice that truly
seeks to minimize or avoid potential liability." They do so by teaching seminars,
circulating a newsletter, keeping on top of the ever-changing field of employment
and labor law, and participating in the development of the law.
"We've put on seminars for our clients," he adds, "and not just for their attorneys
- for their line managers. And we provide them information they can actually
use in their daily tasks to help them be more effective managers and, at the
same time, comply with applicable laws and regulations."
Another partner, Richard Rosenberg, is well-known for his training skills.
"Richard always gets rave reviews because he provides it in a very user-friendly
manner, by using real world examples by providing line managers with information
they can take back to their work," says Silverstein. The California Employment
Development Department, even asked the firm to provide a series of lectures
to groups of employers throughout the state. And they do it pro bono. "It's
a way of giving back to the community," says Silverstein. "It's difficult to
do pro bono work for management and this is a way we can give back."
If, even with preventive measures in place, their clients are sued, Golper
tries to resolve the case in an expeditious manner - if it's in the client's
interest. For him, the ultimate pleasure is when the plaintiff walks away thinking
the result is right. For Ballard, Rosenberg & Golper, that is often the result
of a summary judgment motion. "I like winning summary judgment motions because
I think right was done and this client didn't have to pay for a trial," says
Golper. "Our firm has traditionally been very successful on summary judgments."
Silverstein attributes much of that success to a formula for summary judgment
created by Golper.
"Our litigation philosophy with respect to summary judgment motions is to depose
the plaintiff, pin down that testimony and then use those admissions that we
gain through the deposition as undisputed evidence on which to base the motion,"
he says. ?We have had a tremendous amount of success on behalf of the employer
in resolving matters at the summary judgment stage."
The emphasis on summary judgment is twofold. First, if successful, it saves
the client the money and time involved in a trial. It also serves as a way
to let a judge decide the law rather than a jury. "It's one thing to argue
that a person is an "employee at will" to a judge, but another to argue it
to a jury," says Silverstein, indicating the presence of a sympathy factor
any time a corporate defendant faces an individual plaintiff. If that fails,
trial it is. "We can also be pitbull litigators, when necessary," says Silverstein,
who began refining his litigation skills even before he joined Ballard, Rosenberg
& Golper.
He worked full-time his last semester of law school as a judicial extern for
Judge Alex Kozinski of the 9th Circuit US Court of Appeals. Silverstein's litigation
emphasis has continued at Ballard, Rosenberg & Golper. "It's wonderful working
with John [Golper], Rich [Rosenberg], and Ken Ballard, who is probably the
premiere hospitality industry labor and employment lawyer in the entire country.
I gravitated toward litigation and now I really like it," says Golper. "I like
the competitiveness. One of the things about litigation is there are so many
different aspects of it. You're not only an employment lawyer, but you've got
the litigation aspects on top of it."
And Golper and Silverstein have gained the respect of both colleagues and opposing
counsel for their abilities as trial lawyers. "Doug Silverstein is my labor
and employment lawyer of choice, not only for my clients, but also for my law
firm," says Sanford Michelman, of Greenberg &c Michelman in Calabasas. "John
Golper is an excellent trial lawyer," says Joe Posner of Joe Posner Inc. in
Encino, opposing counsel to Golper in many cases. "He can talk to people -
not only that, but in trial, he's a very professional, courteous opponent.
We can cooperate on a professional basis in getting the trial done," adds Posner."
At Ballard, Rosenberg & Golper, litigation includes appellate work. "We have
numerous published appellate and supreme court decisions creating law favorable
to employers," says Silverstein. Turner v. Anheuser Busch (a California Supreme
Court case that created a pro-employer standard for construction discharges,
which has been adopted by many other states) and Davis v. Consolidated Freight
(a 9th Circuit case that created favorable law on at-will employment issues)
are just a few of those cases. What it comes down to is that the firm solves
clients' problems. Whether that means creating employee handbooks and policies
or trying cases, they do it. Flash back to a time when lawyers were not the
subject of hundreds of jokes and were seen as community leaders and problem
solvers. "I think what truly separates us [from other firms] is that we don't
sound like a bunch of lawyers," says Silverstein. "Lawyers are seen as problem
makers not problem solvers. We're problem solvers. We present our clients with
the broadest array of solutions that could possibly resolve their potential
labor and employment issues." Flash forward - to what the practice of law should
be.
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