A Special Breed

Not everyone is cut out to live-let alone practice law-in Alaska. Four local attorneys explain the allure of their frosty home state

Published in 2007 Alaska Super Lawyers magazine

By Amanda Coyne, Ned Rozell on August 1, 2007


They live in a place where there are more caribou than people and the state capital can’t be reached by driving. Like most people in Alaska, they live there because they want to, though one who resides in Fairbanks-where the average temperature a couple of Januarys ago was 22 below zero-has passed the bar association exams in two other states for later in life, “when it gets too cold and dark up here.”

Like all the attorneys on the Alaska Super Lawyers listings, the four profiled below are big fish in a big pond-with relatively few fish. Their lives bear little resemblance to those of their Lower 48 law school classmates, who don’t fly in bush planes to the sites of accidents or watch bald eagles swoop outside their living-room windows.

They live in a state where, outside the few urban areas of Anchorage, Fairbanks and Juneau, the locals see them more favorably if they are wearing Carhartt outerwear than a suit and tie. And these Alaska attorneys believe they work in a place where their clients can get a fair shake.

“We still have access to our courts in Alaska,” says personal injury attorney Ward Merdes in Fairbanks. “We can get you in front of a jury and you can be heard.”

Bob Richmond: Never Heard the Word ‘Remote’

If pasted over the continental United States, Alaska would stretch from Washington, D.C., to Salt Lake City. But the 49th state has fewer miles of road than Vermont, giving air and boat travel special significance in Alaska.

Richmond, 63, a maritime and aviation attorney with Richmond & Quinn in Anchorage, has found himself flying to Valdez in 60 mph winds to meet with the man who was on the bridge during the Exxon Valdez oil spill, and to small Native Alaskan villages accessible only by air or boat. It’s a gritty world out there, smelling of diesel fumes and fish slime, and it’s a place where Richmond feels comfortable.

“Being raised in Kodiak . . . I’ve got a little better feel for how people think and act out in the bush,” he says.

“The bush” is what Alaskans call the few hundred villages and fishing towns not serviced by Alaska’s road network. Richmond, who defends maritime and aviation companies, has traveled to many of them since beginning his practice in the early 1970s.

His father, Chester Arthur Richmond, was stationed as a pilot aviator at the Kodiak Coast Guard station when Bob Richmond was 16. After attending Georgetown University in Washington, D.C., spending two years in the Army during the Vietnam War and graduating from the University of Oregon School of Law, Richmond returned to Alaska.

During law school, Richmond took summer jobs back in Alaska, working in fish canneries. He gained an appreciation for hard work, and a view of maritime law from the bottom up. Not long ago, he took a case involving a fistfight between workers at a fish cannery in Alitak, on the south end of Kodiak Island, a place where he worked as a teenager. The cannery ended up getting sued because the fight was on its property.

“Here I am, 63 years of age, flying back to the same cannery and bunkhouse I used to wash my clothes in 49 years earlier,” he marvels.

Richmond’s intimacy with Alaska and its unique maritime and aviation issues has led big-name clients to seek him out. Exxon executives called Richmond in 1989 after the oil tanker Exxon Valdez ran aground in Prince William Sound. When the third mate, Greg Cousins, was sued, Richmond got the lawsuit dismissed before trial, at a time when it seemed all of America wanted to hang anyone associated with Exxon.

“Today, people don’t remember who he was,” Richmond says.

Michael J. Schneider, a personal injury attorney also on the Alaska Super Lawyers list, has opposed Richmond many times during the past few decades. “Bob’s a very capable attorney on his feet,” he says. “He speaks very directly and communicates well with jurors.”

Alaska is huge, but the circle of people one meets there isn’t so large, and that’s one of the reasons Richmond loves practicing law there. Another is the chance to jump on a small plane with his fly rod and catch a rainbow trout on an egg-sucking leech in a remote river.
“I would not live anywhere else,” he says.

David Oesting Slays a Giant

Growing up in northern Wisconsin farm country, David Oesting had high energy, big aspirations and more than a little luck. Because he was too antsy to sit inside, he spent his boyhood roaming the wilds, hunting and trapping. As luck would have it, just as he had perfected his skinning and tanning skills, the Davy Crockett craze took hold and every little boy in America wanted a coonskin cap.

“I did my level best to eradicate raccoons from northern Wisconsin. And, for a kid, I got rich doing so,” says Oesting, senior partner at Davis Wright Tremaine’s Anchorage office. His booming voice befits a man who wants the big things in life: to catch the biggest fish, fly his airplane across the biggest swaths of Alaskan wilderness, ski the state’s biggest mountains.
And then, of course, there are those big cases-multi-party bankruptcies, mining and telecommunications suits, and banking and oil litigation-the kinds that take years and require separate rooms to house all the legal briefs. But no case has been as drawn-out, complex and political-or garnered as much attention-as the Exxon Valdez oil-spill case, in which Oesting was lead council for fishermen, processors, Alaska Natives and others affected by the spill. The case, involving more than 32,000 litigants, has been tied up in the court system since 1994, when an Anchorage jury awarded Oesting’s clients $297 million in compensatory and $5 billion in punitive damages.

Oesting, whose expertise includes environmental, maritime and bankruptcy law, graduated second in his class at Washington University School of Law (St. Louis) in 1970. He arrived in Alaska from Seattle in 1980 to start an Anchorage branch of Davis, Wright, Todd, Riese & Jones (predecessor to Davis Wright Tremaine), having practiced with that firm for 10 years. He was one of only two lawyers at the firm to jump at the chance to move to Alaska.
But as luck would have it, when the tanker Exxon Valdez ran aground in 1989, he was sufficiently well established to be in an advantageous position. He also had the tenacity to elbow out hundreds of out-of-state lawyers who flocked to Alaska to take on the huge corporation. And he had the vision to understand the case could be resolved only through toxic-tort litigation, a relatively new type of class-action suit.

“I did a lot of intimidating, and gradually there coalesced a consensus that agreed, ‘All right, this guy is God,'” he quips.

David Tarshes, a partner with Davis Wright Tremaine in Seattle, works with Oesting on the Exxon case. He recalls, “There have been at least 70 firms involved in that case, and coordinating all of that was, and still is, like herding cats. It took a leader, and he is the perfect person for the job.”

But even a stand-in god would have been challenged by an army of Exxon lawyers who have filed 22 post-trial motions, spending years and a considerable fortune trying to get the case thrown out. The Ninth U.S. Circuit Court of Appeals recently cut the $5 billion jury award in half; even so, Exxon has promised to appeal to the U.S. Supreme Court.

Oesting is ready. “I like big challenges,” he says. “Challenges are the spice of life.”

How Doug Mertz Wound Up in D.C.

One winter day in Juneau, a high school student unfurled a butcher-paper-and-duct-tape banner reading “Bong Hits 4 Jesus” as runners jogged past, carrying the Olympic torch to Salt Lake City. Juneau lawyer Doug Mertz didn’t know it at the time, but that young man’s action would take up a third of his time for the next five years and land him before the nation’s highest court, opposite superstar lawyer Kenneth Starr.

Mertz, 58, owns a practice focusing on environmental and employment law, Native Alaskan and American Indian legal issues in Alaska’s stunning capital city by the ocean. He took on the case when a Juneau high school principal suspended 18-year-old Joseph Frederick for unfurling the banner off school grounds in 2002. The principal saw the message as being pro-drug. The young man, his father and Mertz argued that the issue was free speech, not drugs.

When the Ninth Circuit Court of Appeals ruled in favor of the student, the case attracted the attention of groups throughout the country interested in the First Amendment. “When we won in the Ninth Circuit, it was assumed that would be it,” Mertz says. “But to the surprise of everyone, the Supreme Court decided to hear the case.”

There began the adventure of a small-town Alaska lawyer who found himself opposing Whitewater Special Prosecuting Attorney Starr in front of the Supreme Court. But Mertz, a graduate of Yale and Harvard Law School, and former assistant attorney general for Alaska, was up to the task. First, he presented his case to a few moot courts.

“They got really aggressive,” he says. “It irritated me, but that was exactly what I needed.”
On the big day, the Supreme Court justices were honed and ready for the attorneys.

“It’s a very heady experience,” Mertz says. “You argue before these nine very intelligent, but very arrogant, self-assured people who have no hesitation to grill an attorney aggressively.
“My opponent, Ken Starr, got maybe 15 or 20 seconds into his argument before they started throwing rocks at him.”

Mertz figures he got a few more seconds into his opening argument before the justices jumped in. Then, in a flash, he was done.

“Each side gets 30 minutes, but it feels like it’s over in an instant,” Mertz says.

On June 25, 2007, the Supreme Court ruled 5-4 against Frederick, and the long battle was over. Mertz is relishing a return to normalcy.

“My only plan is to spend more time in the wilderness,” says Mertz, owner of six kayaks, three canoes, an Adirondack guide boat and a 16-foot motorboat.

A New Yorker by birth, Mertz’s fascination with Alaska led him here in 1974 to work for state Supreme Court Justice Jay Rabinowitz.

Mertz has helped defend the land to which he migrated by representing the state in its investigation of corrosion problems with the Trans-Alaska Pipeline. Following the Exxon Valdez oil spill, he helped draft new state and federal legislation, including the federal Oil Pollution Act of 1990.

Says Mertz, “I moved up in 1974 for a one-year job and never went back.”

Ward Merdes: A Look-You-in-the-Eyeball Lawyer

The statuette of cartoon hero Underdog that looks down on Ward Merdes from a shelf in his Fairbanks office seems a fitting mascot for the personal injury attorney.

“I represent little people who have been screwed,” says Merdes, 44, with Merdes & Merdes. “My job is to unscrew people.”

The Alaska-born lawyer recently defended a man charged with driving while intoxicated. Convinced his client was telling the truth, Merdes poked around until he found that police hadn’t calibrated the breathalyzer. Eighteen minutes after Merdes delivered an argument based on that finding, the jury delivered a unanimous acquittal.

Fairbanks Assistant District Attorney Jason Weiner opposed Merdes in the case. But he holds no ill will-in fact, he was impressed with his adversary’s performance. “He’s a very experienced trial lawyer who’s taken a lot of effort to hone his skill,” says Weiner.

Merdes is a look-you-in-the-eyeball kind of person, quick-witted and solidly built. It’s not hard to picture him as the college baseball pitcher who glared at batters, or as a young boy with a heightened sense of fair play.

“I was always the one who got in the fight with the bullies,” he says with pride. “And I beat them.”

Merdes enjoys a challenge-he passed the state bar exams in Alaska, California and Washington-and relishes a good scrap. He presents cases in front of a jury about once a month.

“It’s a fabulous way to earn a living,” he says. “I get to go to battle with the insurance companies-the biggest, baddest bastards in the world-for the little guy.”

Merdes also lectures for the American Association for Justice. The plaintiffs’ bar association hires him to preach what he practices.

“Here I am, this little pissant lawyer from Fairbanks, who they fly around the country,” Merdes says. “I think they like me because I’m kind of blunt.”

But the man who says he enjoyed “the knife-fight of law school” dials down his ego before taking his cases to court. His wife, Lori, teams with him to enlist people for mock juries.

“Some people wonder why I win cases,” he says. “It’s because I don’t try cases I’ve already lost. I bring these [mock jurors] in, and they kick the hell out of me,” he says. “But, man, the stuff we learn. And the clients learn a lot, too.”

Merdes follows a path blazed by his late father, Ed, an Alaska state legislator and well-known trial attorney. In 1982, Ed was reading another attorney’s legal brief and shaking his head. Ward, then 19, asked what was wrong.

“Ward, do anything but go to law school. The world already has too many lawyers,” his father said. “It’s full of lawyers trying harder to line their own pockets than help decent people.”

Ward pushed ahead anyway, eventually sharing a practice with his father, then later with his brother and close friend Mark, who died suddenly after a martial-arts workout in 2005. Merdes has kept the dual name of Merdes & Merdes to honor both his father and his brother.

Merdes admits to being a bit heavier in recent years than when he and his brother practiced martial arts together. These days, his passion for his career is what fuels him.

“For fun, I practice law,” he says. “I dedicate an inordinate and stupid amount of my life to the law, just because I like it.”

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