In Cicero’s Footsteps

Where did you grow up?

It’s a place in Minnesota where the horizon is right out in front of you: very flat, part of the plains instead of the wooded lake-filled country most people think about. It’s closer to the Dakotas, and in fact, it’s in a little corner of Minnesota that’s a few miles from the South Dakota border. It’s called Marshall, where the corn grows high and duck season is very important. It’s windy, it’s flat, it’s cold, but with the warmest people you could imagine. It was a town of about 8,000 people, and, in that part of the state, it was the hub of commercial life for miles and miles around. One high school, one middle school. Those were the days when you could play three sports, be in the band, do debate … I did get a call from a basketball coach who said it’s either debate or basketball. I chose debate. Maybe that was a bit of a career moment.

So a love for debate sparked a love for law?

I did very well in speech and debate, so yes, I’d say it was a result of my love of argument and public speaking. I thought being a lawyer was the thing to do. As for why someone from a small town from Minnesota has those interests, my mom was a speech coach in high school. My parents made books and all those kinds of things important. By the time I was a senior in college, I won the national collegiate championship in 1980 in extemporaneous speaking, at St. Olaf.

Where you majored in …

Latin and English. I thought seriously about teaching classics or English. I had one English professor who talked to me about it, but the academic job market is never a good place to be in. It wasn’t then, it isn’t today. He came from the University of Chicago, and I had him for Milton seminar as a sophomore. He encouraged me to study abroad, which I did, at Oxford. As for Latin, I’d been too busy in high school to take it, and there was this fantastic Latin professor, James May, who had just come [to St. Olaf] from UNC, which had the top classics program in the country. I took beginner’s Latin on a whim, and hung with it, taking a major. May is still there, in fact. He’s one of the world’s leading Cicero scholars.

Speaking of Latin, I understand the language got you and a friend out of a serious pickle once.

(Laughs.) Ah. Yes. My first year at St. Olaf, I became close with the guy who lived across the hall from me. He was this big-city kid from St. Paul, and here I was, a small-town guy. His name is Jim Overdahl, and he’s now the chief economist at the SEC … just a really smart guy who I still keep in touch with. We just visited in D.C. in October. Anyway, he was in Cambridge the year I was at Oxford, so we traveled together. He had relatives in Prague, so we trained it over there and on our way back, decided to stop in Budapest. Now this was in ’78, maybe ’79, when going to Prague and coming back meant military police behind the Iron Curtain with machine guns on a strap walking through the train station checking IDs. It was very exciting. His relatives … they were on the opposite side, one of them was a well-known political opponent of the regime, so they had been somewhat blackballed. That’s the atmosphere we were in. Our youth told us, “Oh, we’ll get off the train, even with no map.” Somehow we got totally turned around. It’s a city split by a river, and we were on the wrong side. We happened to run into a German professor who didn’t speak English, and we didn’t speak German, but we somehow stumbled on this common language, Latin. Eventually we made it back to the train station.

When was the moment you knew the law was the right choice for you?

I was maybe four or five years into the practice, at the second of the two firms I’d been with before I came [to Aiken & Schenk] 20 years ago. I just remember being on the phone with a client, and giving a piece of advice or answering some question, completely from the gut. I didn’t take time to research it, didn’t really know the exact answer, but I remember thinking after the call, “Wow. I can do this. I can bring to bear a mix of judgment and expertise that helps people solve their legal problems.” I think that’s when I knew. Keep in mind that was after a very steep learning curve, the first few years—an enormously high one.

Your practice, business litigation is pretty broad, isn’t it?

Part of the reason why—and part of the reason the practice has grown—is because I didn’t let anyone put me in a cubbyhole. I’m not really clear on how it happened, but, last year, for the first time, I hit 30 percent of my time/revenues doing mediation/arbitration. The rest of it is business litigation, non-personal injury litigation. That’s about the best definition I have. Whether it’s mediation/arbitration or litigation work, my cases all concern very similar fact patterns and legal issues: disputes among partners, lawyers who aren’t getting along, accountants who are being sued or not getting along, people whose investments in real estate have gone bad and who are being sued by limited partners. Unfortunately, the kinds of cases this sort of economy would generate.

What is the economy generating for your firm?

We’re all in this together. The law firms are only as healthy as their clients. The clients are suffering. It doesn’t mean necessarily that the firms have to suffer; the question is, “How do you mitigate that?” What I read, because I don’t live in this world, is that Big Law has squeezed profits out of the enterprise, even while their own clients are suffering. That’s laying people off, backing salaries down, all the moves we’ve read about over the past few years. But for us, we’ve got very low overhead and no debt, and even though the clients have been suffering, we’ve grown. Over the last 18 months, we’ve added some solid lawyers. So I really have two answers—Yes, we’re in this together, but we’ve also had our second best year in history last year. I read a review about this book based on this theory of “total destruction results in a new place to grow.” This author uses some natural disasters, London fire of 1666, the Lisbon earthquake. These are opportunities to grow. Out of chaos and destruction, good things can happen.

You switch hats often, between litigation and mediation/arbitration. Tough transition?

One would think. It is a very different set of skills, but it’s not difficult for me. There is some overlap. At some point in a mediation with one side or the other, you have to help them evaluate a claim, or a defense, or a component of their damages case. You have to be a little bit of an advocate. I got into mediation thanks to a leading construction attorney in town. At a birthday party, he came up to me and said, “Hey, you should be mediating more cases, and you should be mediating construction cases.” I said, “I don’t do construction work,” and he said, “No matter. I’ve got your first case.” I have never said to another lawyer, “I do mediation and arbitration.” From there, it just took off, ranging from construction to business. I haven’t done much in personal injury. So that’s what it’s really about, unless you’re one of these top national practitioners … you really have to have the trust of the people in the community rather than marketing prowess.

What’s it like running into a fellow lawyer around town who you’ve found against?

I was just asked to mediate a dispute between a client and one of our city’s leading lawyers … to me, the only effect it has is, it’s just an honor. It’s an honor to be asked to help resolve their problems. Inside or outside the legal community, everyone understands their role: If I have to be hard on the client, or the lawyer, everyone understands that. I’ve got one job to do as a lawyer, and one job as a neutral, which is just call ’em as I see ’em. The lawyers have to trust that you know what the heck you’re doing. I found against a client of a lawyer here in town, it was almost a $3 million case, and had a meal with him soon after. I go back to Marshall, Minn., where there were one or two judges. They were deciding murder cases, felonies and everyday neighborhood disputes, and they might run into the lawyers at the high school later that night. The truth is, I love lawyers. I have strong feelings for them. But I have a job to do. That’s what professions do. And as proud as I am of a lot of the trial/arbitration wins—and I say “I” loosely, as sometimes these are with partners and associates—I’m most proud of my pro bono cases.

Can you share one?

Of course. Sometimes it’s just heartbreaking. I do work for a law school classmate of mine, Patricia Gerrich, a lawyer with Community Legal Services. They run volunteer legal programs here in Phoenix, and it’s one of the leading ways for lawyers to meet pro bono clients. I just love doing that work. I had a case once in which an elderly woman lost her home. She was a member of a church, which was a fringe outlet, not a mainstream church. Through a series of strange agreements, the church had taken her home from her, similar to a Ponzi scheme. She was ill, and they were supposedly helping her. To her, the documents looked good, so she didn’t understand. One day they just came and kicked her out. The morning of trial, she grabbed my hand and said, “Shawn, let us pray.” She prayed that the judge would understand what would happen, and she would have her home back, that she wouldn’t be out on the street. So we had a claim that was really an equitable claim that the court should rescind and we won … her tears of joy, the emotion … it was amazing. Business litigators like to talk about those “bet the business” cases, but, for this client, it didn’t get any bigger. There are lots of lawyers around Phoenix doing this kind of work, and I’m grateful to be one of them.

You’re pretty involved with ASU, too.

That’s right, and wow—what a treat that has been. For 10 years, we’ve had a terrific dean at ASU, Patricia White, now at U of Miami Law. Paul Berman stepped in, and the guy is an absolute dynamo, just a fireball. No exaggerating, they’ve got 30 or 40 new programs underway over there. I have been involved any way that I can. I was asked to coach the moot court team, and we won [major competitions] twice. In 2009, we took home the Jenckes Cup. I’ve been involved with some speed networking, too. I just love law students. I love their energy. It’s infectious. They want to soak up whatever they can. They’re eager, and we have a common language … and it’s not Latin.

What words of advice do you impart to them?

I’d tell students—and even young lawyers—that you need to be seen doing good work. When that happens, most everything else just happens. Second and third years need to get in front of employers because, and I don’t care how good your grades are, good work is what persuades.

So what do you do in your free time?

I love to read. I just finished The Black Swan. It is incredibly interesting, and has to do with victims of randomness. It’s by an economist. I also finished Dewey, about that library cat in small-town Iowa? It’s a kick for any cat lover. The town is not so far off from where I’m from. Running, also. The number of miles has gone up and down over the years, but running has kept me fit, energized and sane for almost 40 years. I’m also a huge 24 fan. I love the tension.

Would you trade in your brief case for Jack Bauer’s credentials?

Oh, no. I could never be him. Nor would I want to. Maybe my son would, though. We just heard that he’s gotten an interview with the CIA. He’s a junior in college. What in the world is the CIA doing with juniors in college? We’re not really sure, but we’re very excited about it.

Final word: We hear you make an unreal cheesecake.

It is a mean cheesecake. Hazelnut. And a chocolate amaretto version that just kills. Here’s the thing—you take the hazelnuts, put them under a broiler, roast and then grind.