When Ken Fitzgerald isn’t repping the San Diego Chicken or cross-examining bad actors, he moonlights with the La Jolla Symphony
Published in 2015 San Diego Super Lawyers magazine
By Joe Mullich on January 21, 2015
As Ken Fitzgerald approached the jury, he thought momentarily of Beethoven’s Ninth Symphony.
A partner and business litigation attorney at Chapin Fitzgerald in San Diego, Fitzgerald had an important point to make in his summation, but he didn’t plan on making it grandly. Instead, he walked to the corner of the jury box and dropped his voice. The jury leaned forward.
Fitzgerald, who received a music scholarship to Rice University and plays first trumpet for the La Jolla Symphony Orchestra, adopted his courtroom style in part from observing symphony conductors he’s worked with over the years. “Otto-Werner Mueller, who was director of conducting at Yale University, moved his arm and baton very little,” Fitzgerald says. “By the time of the performance, his movements were so small and contained and subtle, it forced a musician to play close attention to him. If he made a big gesture, it meant something, and had a dramatic effect on how you played.”
There’s an old joke: “How do you get to Carnegie Hall? Practice, practice, practice.” That’s Fitzgerald as both trumpeter and lawyer. “I have never been good at improvising and thinking on my feet at trial,” he says. “I am methodical and meticulous.”
How meticulous? He creates decision trees for most of his examinations—extensive outlines in which every question leads to a yes or no answer, and every yes or no answer is followed by another question. He scripts them out for as long as 30 pages. They take eight to 12 hours to produce.
But they’re worth it. He offers a quote from Maestro Mueller: “The worst insult a conductor can give the orchestra is to not be well-prepared. A conductor must know every line and see the whole phrase. … He must know what’s just ahead and where you are going.”
Twenty years ago, for example, Fitzgerald represented Ted Giannoulas, a.k.a. the San Diego Chicken, against a group that made plush toys based on the Chicken’s trademarked image. Most of the litigants settled; the lead defendant did not. Giannoulas, however, had secretly tape-recorded a conversation between himself and the lead defendant, in which the latter not only admitted to selling toys with the Chicken’s likeness, but promised to stop. Recordings of confidential conversations are, of course, not admissible in court, and on the stand, predictably, the defendant’s version of the conversation did not include his admission of wrongdoing.
That was answer A on Fitzgerald’s decision tree, and he asked the prepared follow-up: “Did you consider the conversation you had with Mr. Giannoulas confidential?”
When the defendant responded no, Fitzgerald promptly handed the judge a bench brief to admit the tape recording into evidence. When the defendant’s attorney objected, Fitzgerald pointed out that the plaintiff had acknowledged the conversation was not confidential, so the tape could be admitted. The judge smiled and said, “He did say that.”
Fitzgerald’s demeanor impresses colleagues. David L. Schrader, with Morgan, Lewis & Bockius, recalls a case he arbitrated against Fitzgerald: “He was effective at undermining a witness’s testimony and credibility without being hostile or attacking him personally, which is a hard thing to do. A lot of attorneys get emotionally wrapped up during a cross-examination. He keeps an even keel.”
The trumpet has helped in that regard. “You have to be calm while playing the trumpet or you will sound bad,” Fitzgerald says. “You have to be calm while being a lawyer, or your emotions will get the better of you and alienate your judge or jury. On stage or in the courtroom, you have to stay focused on what you are trying to communicate, and you have to know how to perform even if you feel nervous. Lots of musicians and lawyers crash and burn in the big moment due to stage fright and anxiety, but playing the trumpet and trying cases have both helped me learn—sometimes the hard way—how to stay relaxed, even when the pressure is on.”
He had an itinerant childhood. His father was in the plastics business, and the family moved around a lot: Massachusetts, New Jersey, Texas and California. “Every new town and home was a new adventure,” he says, “with different types of people with different accents and personalities.”
In high school, Fitzgerald’s interests were split between band and debate, and band won out. After receiving a music scholarship to Rice, he transferred to the University of Michigan to study with Armando Ghitalla, who had played principal trumpet in the Boston Symphony. His classmates included Bob Sullivan, who would go on to become the principal trumpet of the Cincinnati Symphony and Cincinnati Pops orchestras. It was there that Fitzgerald had a disquieting revelation: He just wasn’t good enough.
“My classmates were so much better than I knew I could ever become,” he says. “I thought I could make a living as a musician, but I wouldn’t be playing trumpet in a major orchestra.”
He was also concerned that playing trumpet in an orchestra wouldn’t engage him enough intellectually. So he returned to Rice, then earned his J.D. from UCLA in 1989. For a time he considered entertainment law. But that was mostly transactional work, and, as a performer, he longed for the courtroom.
He got there sooner, and at a higher level, than he expected.
On his first day at Latham & Watkins, he was assigned a case representing the BAR/BRI bar exam review course, which he himself had used in law school. BAR/BRI alleged that a competing course had made false claims in an ad comparing the two programs. So he flew to Chicago to meet with Richard Conviser, the professor who created BAR/BRI.
“It was unnerving, exciting and tense to be a week into the job and have my work product reviewed by the head of the leading bar review course in the country,” he says.
It got better. Still a first-year associate, Fitzgerald argued the case before the 9th Circuit. “At the time, the firm gave an extraordinary amount of experience to young lawyers,” he says. “They paired one partner with one associate and let the associate do a lot. You didn’t have teams of colleagues to help you, so it forced you to learn lawyering very quickly. And I learned that hard, fast and intense work gets you good results.” He prevailed in the case.
Daniel M. White of White, Oliver & Amundson, who has worked on cases with and against Fitzgerald, praises his quick command of facts. “He is very analytical and brings a calm to highly charged situations,” White says. “Other lawyers get bombastic for no one reason, but he fights the battles he has to fight.”
In 1998, Fitzgerald helped represent Credit Suisse in a bad-faith insurance claim against a unit of AIG called American Home Assurance Co. Credit Suisse had lent money to build four small hydroelectric projects, and the developer went bankrupt. American Home, which provided the performance bond, denied its obligation.
After the judge dismissed the tort claim for bad faith, Jay Wheeler, the lead attorney and Fitzgerald’s mentor, came up with an unusual tactic: He asserted that American Home issued the bond fraudulently with no intention of paying. “American Home adopted so many ridiculous positions in the litigation,” Fitzgerald says, “and the defenses it asserted were completely bogus. If the company really intended to perform its obligations, it wouldn’t have acted this way.”
But how to prove it? In discovery, American Home turned over boxes and boxes of evidence related to the project. On one note, Fitzgerald noticed something scribbled out. He sent the document to a forensic document examiner who examined it under a light filter. The scribbled-out message referred to a memo, which Fitzgerald eventually secured, in which the contractor’s project manager told his boss there was no way the project could be built on time.
In its decision, the 9th Circuit cited “sharp-eyed associate” Kenneth M. Fitzgerald by name for the discovery that led to the memo. “When I read that in the opinion, I burst out laughing and had it framed,” Fitzgerald says.
Fitzgerald says the fun part of the trial was determining the punitive damages. “They had no defense,” he adds. “We just put up evidence about what bad actors they were.”
American Home called as a witness the attorney who’d scribbled out the notes, and he ventured this opinion: “I believe we had a good defense and still do.” The moment the attorney discussed his legal tactics, Fitzgerald knew that his attorney-client communications and work products could be introduced as evidence, and he immediately handed over a subpoena for the material.
Such complex cases provide the intellectual stimulation that drew Fitzgerald into law. But by 2010, something was missing. “I like the nuts and bolts of lawyering,” he says. “At large firms, partners are not incentivized and compensated for lawyering but for managing groups of lawyers.” So he joined veteran trial lawyer Ed Chapin’s boutique litigation firm.
He keeps running into bad actors. In one case, Fitzgerald represented a manufacturer who claimed his trademarked image had been pilfered. The other party maintained they had created the trademark and produced a CD containing the digital images to support their claim. “We sent the CD to a computer forensic expert, and he was able to figure out the software that was used to put the file into the CD didn’t exist until five years after the date he claimed to create it,” Fitzgerald says.
More disturbing for Fitzgerald is when the bad actor is another attorney. A businessman, who was also an attorney, recently claimed that he had a verbal contract to buy a $53 million promissory note from Hughes Network Systems, a Fitzgerald client. He claimed an executive at Hughes had left a voice mail affirming their deal. Except there was no contract, no confirming letter, no notes memorializing this purported conversation. The voice mail itself didn’t even exist.
“In a videotaped deposition, [the businessman] claimed he had deleted the voice message because he believed there was a penal code section that required him to delete the voice mail,” Fitzgerald recalls. “He looked so ridiculous giving this explanation that I wanted to play the videotaped deposition during the opening arguments and during his cross-examination, but the judge wouldn’t allow it.” No matter. During the examination, Fitzgerald asked the question again and the man gave the same “fumbling, bumbling, ridiculous explanation.”
That case set Fitzgerald’s personal record for how fast a jury returned a unanimous verdict: less than an hour.
The La Jolla Symphony, where Fitzgerald plays first trumpet, has six concert series during its November-to-June season, and its musicians practice together once a week. Fitzgerald, who is divorced with four children, practices on his own for an hour every day no matter where he is: hotel rooms, airports, it doesn’t matter. “You have to stay in shape by practicing every day,” he says; “otherwise, you lose your chops.”
Fitzgerald may have thought of Beethoven’s Ninth that day in the courtroom, but he considers Mahler’s Fifth Symphony the ultimate orchestral piece for trumpet players. “It opens with a dramatic trumpet solo, and the trumpet carries the most dramatic melodic lines through most of the movements,” he says. “It’s on every trumpet player’s bucket list.” It’s now off his, since he played it with the La Jolla Symphony last fall.
In high school, Fitzgerald wondered: band or debate? His answer turned out to be: both. “Playing in the orchestra allows me to fulfill my musical ambitions while I get to practice law,” he says. “I feel like I’m a professional musician and an attorney. I have the best of both worlds.”
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