The General


Published in 2013 San Diego Super Lawyers magazine

By Erik Lundegaard on June 7, 2013


Q: You were given the Daniel T. Broderick III Award for civility, professionalism and integrity by members of the San Diego Bar in 2008. Any moment since, say in some heated negotiation, when you were ready to toss civility out the window?

A: I was in the Marine Corps. If there’s one thing the Marine Corps teaches you, it’s discipline and restraint. But the thought occurs to you from time to time.


Q: You’ve tried more than 140 cases to jury verdict. Which ones remain memorable for you?

A: On the defense side, the first case in California that went to jury verdict where a psychiatrist had sexual relations with patients. This was in the early 1980s. I tried the case against Marvin Lewis from San Francisco. He was 75 years old at the time and I could not believe his stamina. He taught me a whole lot about integrity and professionalism.


Q: In what way?

A: It was the largest verdict against a psychiatrist in history in California. I was a young lawyer and deeply hurt by it. I felt my career was probably over at a young age. But Marv Lewis, when we discussed settlement and later on, was an absolute gentleman dealing with me. He went out of his way to be courteous and civil. It was comforting to know that somebody wasn’t wanting to talk and act like a tyrant and hold it over me. He didn’t. He was very reasonable about how we resolved the matter.

Now, on the [plaintiff’s] side, I tried a case one time for a friend who was injured in an auto accident. He was riding a bike, and there was an issue of whether or not there was brain damage, and the conduct of the driver; and the insurance company would only offer me $75,000. So we went to trial in one of the few plaintiff’s cases I’ve tried, and I hit him for over a half a million, which I thought was striking a blow for justice.


Q: So you do plaintiff’s cases, too.

A: It’s a good teaching point for somebody to see what it’s like on the other side and to gain new insight and new respect for what plaintiff’s attorneys have to go through.


Q: What insights do you gain?

A: When you lose, you don’t get paid, number one. [Laughs] Number two, going first means it’s extremely important to come out with your best shots. On the defense side, you can sometimes hold back. I think that the plaintiff’s lawyers in their opening statements and in their opening witnesses need to do everything they can to make an impression upon the jury that’s favorable. And you don’t want to wait on that. You want to do it as soon as possible, start swaying their opinions and their thoughts.


Q: You’re a boxer. Which feels more like boxing: plaintiff or defense?

A: Probably the defense side. Let the other guy come out swinging. I like to wait a few rounds and then wear him down; and since you’re going last, you can get your good punches in after you’ve worn him down. That’s an interesting way to analogize it.

By and large, I prefer to be on the defense side, simply because I think that the majority of the time it’s the more comfortable position to be in from how you personally feel about people. I like helping people. And when people are being sued, oftentimes even when they have insurance, they feel that their own integrity and their professionalism and their own self-worth are being challenged. They need that support.


Q: So on the defense side, it’s not just insurance companies?

A: Rarely ever an insurance company directly. We’re always representing people that are insured. I’ve tried auto cases. I’ve tried product liability cases. I’ve represented many police officers. I’ve tried just about every type of case there is, except an aviation case. I’ve even tried an admiralty case. The person always feels threatened, especially where there’s the threat of punitive damages, or a verdict in excess of an insurance policy limits.

I had a police officer I defended one time. We represented the city of Carlsbad. And I’ll never forget: When we got the defense verdict for him, he came back to my office and he broke down crying, calling his wife to tell her they wouldn’t have to sell their house because they won the case.


Q: Any of your cases flip on you? Either you thought it was going negative and it went positive, or positive and it went negative?

A: Oh, sure. There was a case one time where I was defending a doctor. I told the doctor and I told the insurance company, “We’ve got to settle this case. We can’t win.” The doctor agreed that the case should be settled. But the insurance company and a claims person who I respect very much, who’s unfortunately now passed away, said, “No, Mike. You’ve got to try it.” I said, “But John, I can’t win this case.” “You go down and try it. You’ll do it.”

Well, to show you what [my] advice is worth, I won the case. So then I had to call him up and tell him that I was wrong. Ninety percent of the time, I [know] what a good judge or jury is going to do. Any experienced plaintiff lawyer is going to tell you, there’s a 10 to 15 percent [chance] when a jury just does something that nobody expects.


Q: Did you have a mentor?

A: I did. John Rhoades in our law firm. John Rhoades went on to be a federal judge. John and I lived within a mile of each other. He mentored me about how to try lawsuits. He made me a far better lawyer by making me pay attention to detail, and not to overlook the slightest fact or issue. He was probably one of the smartest men I’ve ever been around. He passed away about three years ago.


Q: How did you join Neil Dymott?

A: When I got back from Vietnam, I was stationed at the Marine Corps Recruit Depot. They found out I was a lawyer, so they started using me as a lawyer. And I met another lawyer who was also an infantry guy in Vietnam like me, Bill McAdam, who is now a Superior Court judge. He and I formed our own law firm. For 2 1/2 years, we did a lot of trial work. We got well-known, he was hired away, and Holt, Rhoades & Hollywood [which became Neil Dymott] offered me a job.


Q: Your father was in the military?

A: He was a sergeant major in the Marine Corps.


Q: How did the interest in the law come about?

A: I got that from my Irish mother. She always wanted me to be a lawyer. She always respected lawyers. I don’t know where that came from, but she did. She said, “Mike, you’ve got the gift of gab. You should be a lawyer.” It was ingrained in me at an early age. I’d never planned on joining the Marine Corps.


Q: What changed your mind?

A: When I was going to Cal at Berkeley, all of the anti-war activity was going on. And one night, I saw a Viet Cong movie up there that was being shown by the Young Socialist Alliance group. And the audience cheered and clapped when an American helicopter got shot down. And an American pilot, as he was climbing out of the helicopter, was shot and fell on his face in a rice paddy. The whole audience erupted in cheers and claps. The next day, I drove over to San Francisco and joined the Marine Corps. I was so upset over what was going on at Berkeley. I just felt it was time for me to step up to the plate and do my duty.


Q: So when you were promoted to brigadier general in 1989, and you thanked Mario Savio in your speech, that wasn’t a joke.

A: If it hadn’t been for the anti-war movement and the way it was conducted and the despicable behavior of the people involved, I may not have joined the Marine Corps.


Q: When did you ship out to Vietnam?

A: After nine months of training to be a platoon commander and an officer in Quantico, Virginia, in the coldest winter they’d had in 20 years.


Q: And in the middle of all that, you passed the bar.

A: The Marine Corps delayed my entry until I finished taking the bar in San Francisco. And as soon as I walked out of that third day of the bar exam, I stepped in my car, drove to San Diego, loaded 7-Up trucks for six weeks, then drove across country in an old Volkswagen Beetle, with no radio, by myself, to Quantico. One of the loneliest drives I’ve ever taken in my entire life. I sang every song I knew and recited every poem that I’d ever memorized.


Q: Do you remember any of the poems?

A: Invictus: “Out of the night that covers me/ Black as the Pit from pole to pole/ I thank whatever gods there be/ For my unconquerable soul.”

   It’s a great poem.


Q: In Vietnam, you won the Navy Cross.

A: I would prefer that you use the term I “received” the Navy Cross. There are many, many men far more deserving than I of that award who never received it. So I wear it with humility and to honor all of my fellow Marines.


Q: What was the incident?

A: I had my platoon out. It was an area that we knew quite well. And one of my squads called me on the radio and told me he had 100 enemy soldiers cross his position in front of him. I told him to take them under fire. I got my other two squads. We linked up, and we fought them all night long. We were basically surrounded. But we stopped a rocket attack on Da Nang that night. The squad leader who initially took the 100 enemy soldiers under fire was a young corporal, 18-year-old corporal, by the name of Larry Smedley, who went on to receive the Medal of Honor.


Q: I read that, for a time, you were an aerial observer?

A: We flew in an airplane that essentially was like a World War II airplane. It was a prop-driven, overhead wing, tandem-seater aircraft. I sat behind the pilot. We controlled artillery, fixed wing strikes, worked with reconnaissance units, helped troops on the ground maneuver. When we ran out of rockets on our wings, we would drop hand-held smoke just like they did in World War I to mark positions. On more than one occasion, I fired my M16 out of the back of the airplane. It was a very unusual aircraft, but it was very durable. It could take a lot of hits.


Q: Did it feel safer than being on the ground?

A: Oh, less safe. There was no way to hide in the air. On the ground, when you’re with the grunts, if somebody was shooting at you, at least you could hug the dirt and crawl away. But there, we were only doing 85 miles per hour in this aircraft. We got shot at all the time. Fortunately, the enemy wasn’t that good of a shot. But, sometimes, when a .50-caliber was shooting at us, it would seem like it would be forever for us to get out of the range of the big gun.


Q: Have you been back to Vietnam?

A: I have. You can Google this story. It was in the U-T. June 14, 2009 is the date of the article: “The Vietnam vet and his long-lost friend.” I found this guy who was just a kid when I left. That was quite touching.

I enjoyed the whole experience of going back. One day I just looked myself in the mirror in the hotel room [in Vietnam], and I said to myself, “It’s over.” Something must have been inside me that I was not aware of. A reporter asked me one time, “Do you ever think about Vietnam?” and I said, “Every day.” I’m writing a book right now about my experience in Vietnam. I think for those of us that fought in that war or any war, the captivating experience of your entire life is going to be the war you were in and the men you served with and the experiences, good and bad, that you had, and your times that can never be duplicated in any other place. So there must have been something going on inside me that I wasn’t aware of. [Going back to Vietnam] let the demon out, so to speak.


Q: You went back with … ?

A: Some other Marines.


Q: Had you been talking about it for a while?

A: We had. And the opportunity came and we did it. I met a former Viet Cong over there, right next to a village, who came out of a corn field. A guy about my age who walked straight up to me and shook my hand, wearing all black. I looked at him, and told him by motioning and everything that I was a Marine, and we used to fight in that nearby village. And he nodded his head back and forth, and like a ghost, he disappeared back into the corn field. Two of my Marines were standing behind me when all of this took place, and they couldn’t believe it. It was like something out of a movie. Like out of Field of Dreams, you know? It was obviously somebody who, at one time, I may have shot at and he shot at me.

But I’ve got to tell you, Vietnam is just a transformed country. It’s very capitalistic. People were very friendly.

I have to keep reminding myself that we have generations of Americans that never experienced the Vietnam War. I think it’s important that Americans know about the sacrifice of so many young men who went to the first really unpopular war in modern history in the United States and fought bravely and stood up for what they believed in—despite the fact that when they were welcomed home, they were spit upon and reviled.


Q: Did any of that happen to you?

A: I’m a pretty big guy. A couple of times people said things to me, and I just let them know that they’d better keep their mouths shut. But I was fortunate to come back to San Diego, which was a pretty pro-military town. I knew a marine [who] lost a leg, and somebody told him he deserved to lose it.


Q: When did you feel this attitude changing?

A: During the Reagan administration. But it really happened during the first Persian Gulf War. In 1990, when I took over Camp Pendleton, I began to see the community come together, then the greater community, and then the whole country. T-shirts all of a sudden came out: “Support our troops.” We were inundated. We passed on everything we could to the troops in the field. I’ll tell you this: Because all of the cookies and everything and cakes that people donated that we’d sent them, we went to war with the highest sugar content of any Marines ever.


Q: How tough was it with your caseload when you were called to active duty and became commanding general of Camp Pendleton?

A: I left within 48 hours. I had to call all my clients. Everybody understood. I will say this, it was unbelievable, the overwhelming support. There was one person in one company that was not happy about it and did something that was not in my best interest. And he was subsequently fired for his conduct. The support in the community from attorneys on the opposing side, judges, and everything was absolutely overwhelming and heartwarming.

Let me tell you this story. When I came back from active duty, one of the first cases I had, the plaintiff’s lawyer wanted to make sure that I didn’t mention anything about Camp Pendleton or the fact that I was a Marine or anything else. The judge told me to make sure not to do that. And I said, “Of course, Judge, I wouldn’t do that.” But since I’d been on TV so much, half of the jury recognized me. “Yes, I recognize General Neil.” So, I didn’t have to say anything about my recent Marine Corps experience. Half of San Diego knew who I was.

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