The Man Who Bullies the Bullies
Why does Joe Cotchett win so often? Street smarts
Published in 2005 Northern California Super Lawyers magazine
on July 20, 2005
Updated on August 21, 2015
Joe Cotchett would make a terrible jurist. That’s just what he — Joe Cotchett — says when he’s asked about donning the judicial robes. “I’d be a terrible, terrible jurist,” he says flatly, “because I have biases. I’m an advocate.”
That he is. In more than 40 years as an attorney, Cotchett has earned a reputation as a man who champions underdogs. Cotchett is consistently ranked among the top 100 trial lawyers in the country by The National Law Journal, California Law Business and other publications (and he is the second top point-getter among this year’s Northern California Super Lawyers). But still he doesn’t wish to be found on the gavel-wielding side of the judge’s bench.
“There are many people who make great judges, and in California we are blessed with a fine judiciary,” he continues. “But I would never be even a decent judge. In my makeup — in my physical and chemical makeup — I have a passion for advocacy that would not permit me to sit and call balls and strikes as a good umpire has to do.”
Not that he hasn’t been asked before. But he wants to remain a trial lawyer, which is good news for those who need access to a worthy advocate, and bad news for corporate malfeasants.
The law firm of Cotchett, Pitre, Simon & McCarthy is located near San Francisco International Airport in Burlingame. One could be forgiven for mistaking its building for just another nondescript structure lying along a dreary industrial corridor crammed with laundry facilities and electricians’ shops. There is one giveaway, however: a tall, freestanding clock (that looks like it should be on a mid-19th-century London street corner) nearly hidden amongst the trees outside, with the words “Barristers” and “Advocates” printed on its large round face.
Inside, surrounded by mountains of books, trial binders and family photos, Cotchett sits in his modest corner office. He is a retired U.S. Army Reserves colonel and his 6-foot-4-inch, 200-plus-pound presence creates an imposing force inside a courtroom. But as he stretches out until his feet land on a stuffed toy bear he uses as a footstool, he appears loose and relaxed, and he’s content to speak leisurely of Chicago jazz clubs, of college basketball and where to find a good piano bar in New York City.
Until, that is, he sees a New York Times front-page photo of Bernard Ebbers. The ex-chief of WorldCom was just convicted of securities fraud and conspiracy, and his anguished mug looks like that of a kid caught stealing cupcakes from the church bake sale.
“This is an epidemic,” Cotchett says pointing at the photo. “We gotta start rebuilding from the ground up or that epidemic will destroy our society. Go back and look at the Roman Empire.”
At once, all sense of leisure vacates the room and Cotchett buckles down. “Unless we stop [the institutional greed], our society is destined for failure. I see it in spades every day. I have people coming in and telling stories …” His voice trails off, his eyes roll toward the ceiling. Cotchett seems momentarily overwhelmed by his thoughts until he finally snaps back into the moment.
“Do you realize what that man Ebbers took out of our society? It’s not just a couple billion dollars. We’re talking the lives and careers of thousands of people that work for WorldCom. Pensions destroyed. We’re talking about the effect from an economic ripple that becomes a wave that becomes a tsunami.”
Cotchett wants to be the man to hold back the rising waters of corruption that are flooding the financial world. This desire is nothing new for him, though. When he took on Charles Keating and the Lincoln Savings & Loan in 1992, he won a $3.3 billion jury judgment (later reduced to $1.7 billion) and exposed the contempt that some business leaders demonstrate for ethical behavior. What’s really remarkable was how he pulled it off.
He is a pioneer in the development and deployment of teams of investigators and forensic accountants that follow the paper trails of perpetrators back to the fraud. With the Lincoln S&L case, that meant sifting through warehouses full of documents to find the smoking gun that exposed wrongdoings by workers who were lower on the pyramid — while simultaneously building a case against those at the very top. Cotchett searches for the right people, as well as the right documents. In Tucson, his team eventually found several underlings willing to expose Keating.
But after he nailed the bad guys with their own documents, it was time to convince a jury of the wrongdoing. The law firms representing Keating and Lincoln had brought in psychologists for jury selection. Cotchett explains why he instead hired the former mayor of Tucson to help pick the jury. “He used to lean over to me at night and say, ‘Juror number three would be no good. I know her mother and her mother says such and such. Juror number four — keep him. He’s a great guy. I knew his dad, I knew his mom. I’ll tell you exactly how he thinks.’”
Cotchett is now standing (taking up lots of space in the office) and clearly relishing his performance. “Their psychologist would say [and it’s here that he drops his voice an octave to hit the standard psychologist baritone], ‘Uh, that juror would probably vote this way because of how he’s crossing his arms. And that juror would be no good because of how she’s touching her nose.’ I wanted somebody who knew the people. I didn’t want someone to tell me about head nods, quirks and body language. That’s just being streetwise,” he says. Streetwise is the trait he considers the successful trial attorney’s most important attribute. Those street smarts, along with his carefully selected jury, have rewarded him with many a massive judgment.
“Street smarts aren’t taught in law school and they don’t come from books,” he explains. “They come from your roots.”
Cotchett’s roots stretch back east to Chicago. His mother was a nun. Well, that’s not exactly true. His mother was an actress (which explains his flair for dramatics), and while pregnant she had the role of a nun, so she was able to carry Cotchett almost the whole time on-stage because she wore a habit. After moving to Brooklyn as a child, Cotchett says, he began to develop his streetwise senses. “I didn’t like bullies, and fortunately I was big enough to confront them head-on,” he says.
With his height and strength, he also became a good basketball player. When he was 16, he headed to North Carolina State in Raleigh to play basketball and study engineering. He eventually transferred to California Polytechnic University in San Luis Obispo to complete his undergraduate work. Along this journey he found good people, but he also found injustice.
Cotchett says he believes that it’s not only the environment that you are born into, but how you have been taught to handle certain situations that truly develops those all-important street smarts, along with integrity and leadership. With those attributes firmly hardwired into Cotchett, he has never been scared to try to right a wrong.
As a student, in Raleigh, for instance, he actively disobeyed the “colored only” signs and sat wherever he pleased on public buses, which had designated seating for blacks. At Cal Poly he defied tradition and founded that school’s first integrated fraternity, Alpha Sig.
After graduation, he became an Army intelligence officer in the Special Forces’ Green Berets. He followed that up by enrolling at the University of California Hastings Law School in San Francisco. Then the real work began.
One of his first important victories was against a Los Angeles tortilla manufacturer, where his client lost an arm at the factory because a $1.50 safety switch hadn’t been installed. An even more important case — one that he lost — came in 1983, when he sued the FBI on behalf of the family of Viola Liuzzo. “We lost the case, but we actually gained an awful lot,” he says. Liuzzo was a civil rights worker who had been killed in 1965 by a Ku Klux Klan member in Selma, Alabama. The Klansman, it turned out, was an FBI informant, and Cotchett decided to sue the government agency for its role in Liuzzo’s murder.
The judge ruled that Cotchett hadn’t proved that the FBI was negligent. “At the time I felt a sense of terrible loss, except for the fact that we exposed to the media what had happened,” he says. “Until then, no one ever knew that it was an FBI informant that shot and killed Liuzzo. That had all been swept under the rug.” The fallout from the trial ended up in the positive column when the FBI changed its policies regarding hiring informants. Plus the case opened up the concept that you can sue a government agency such as the FBI for such an atrocity.
In the following decades, he often aimed his sights at companies committing financial crimes that devastate lives. For example, he scored $140 million in damages for more than 1,000 San José area residents who were scammed by Technical Equities. He was awarded $62 million from J. David Dominelli for the victims of an alleged financial swindle. And in 2003, after California had tanked financially trying to survive the energy crisis, Cotchett stepped in and helped gain a huge victory for California consumers and energy companies by negotiating a $1.7 billion settlement from Houston’s El Paso Corp. for illegally manipulating natural gas prices.
At the heart of Cotchett’s drive for justice is the idea of upholding ethics — and not just in big business. He’s critical when it comes to his own profession as well.
“This used to be a great profession. I’m afraid it’s becoming more of a business today,” he says. “There are lawyers in our profession and the only thing they think about is getting their next BMW or whatever. The real good lawyers are in it for the justice, whether that be a prosecutor or a criminal defense lawyer.”
He’s so consumed with ethical dilemmas that he wrote The Ethics Gap in 1991. The book reveals the scope of corruption inside government, big business, the medical and pharmaceutical communities, and the legal profession. (In The Ethics Gap, Cotchett never mentions his own role in resolving the Lincoln S&L debacle, but he cites that case 19 times, far more than any other case in the book, which demonstrates just how profoundly it affected his career.)
Though he believes that it is all but impossible to actually teach ethics (just like street smarts, he believes environment and family are paramount to promoting ethical behavior), he would still like to see more emphasis placed on the subject in school. Not only in law schools, but in secondary education as well.
Which is why he’s writing another book just for children. “This is going to be the most exciting book I’ve ever written,” he says while flipping through proof sheets of chapters that will be found in The Rules and Laws We Live By.
“I don’t think we really teach what the law is all about in our elementary schools. So I am writing a book in the form of lesson plans that I am going to give to the California school system. I truly believe that children raised in the right environment can be taught respect for the law, which leads to more ethical behavior in life.”
Who knows? Maybe Cotchett’s work will inspire more children to battle it out just like he does. Call him an ethicist. Call him an advocate. Call him a dreamer. Just don’t call him a judge.