The Plain Talker
Robert Josefsberg’s secret to courtroom success: Keep it simple
Published in 2010 Florida Super Lawyers magazine on June 14, 2010
Robert C. Josefsberg didn’t figure that one day his career would hinge on defending a transvestite against a barroom brawl murder rap.
It’s not that any case is out of his realm. As a Miami commercial litigator and white-collar criminal defense attorney for 40-plus years, Josefsberg, 71, has defended wealthy Cuban-exile developer Santiago Alvarez (who could have ended up with a much tougher sentence for shipping weapons in an alleged plot to overthrow the Cuban government); and rock star Jim Morrison, against a charge of public lewdness. He’s sued the PLO under the Alien Tort Act after one of its members shot the fingers off a journalist, and Jose Canseco for being a bully. He’s taken on Chiquita, the fruit company giant, accused of paying protection money to the Colombian rebel group FARC (who in turn used that money to kill several Christian missionaries), as well as a highly recruited college quarterback who sued the University of Miami when he didn’t make first-string.
So it’s not that he didn’t welcome the barroom case. He prides himself on helping anybody and everybody, and craves variety because he likes learning new things. He freely admits that he “lives for trials,” and his Podhurst Orseck office near Government Center in downtown Miami is right where he wants to be: a motion’s throw from the courthouse.
In fact, the garrulous Josefsberg loves trials so much, he was less than thrilled about having a case dismissed a few years ago. A construction project outside a nearby municipal parking garage had left the “exit” as the only entrance. Though an attendant gave permission for drivers to enter there, a traffic cop wrote out a bunch of tickets. Six of those ticketed were colleagues of Josefsberg’s, who retained him to fight the citations. For the trial, he meticulously constructed a large chart of the traffic flow and brought in several witnesses. But when the officer didn’t show, the judge dismissed the case. Joel Perwin, one of the plaintiffs and a former Podhurst attorney, remembers Josefsberg protesting, tongue-in-cheek, “No! I object! I have a chart! And five witnesses!” (In Josefsberg’s memory, his line went more like: “I want to try this case on its merits.”) To which the judge quipped, “Get out of my courtroom!”
Josefsberg does love the “performance” aspect of the job. During the civil suit against Canseco and his twin brother, Ozzie, over the beating of a man the slugger accused of grabbing his girlfriend in a bar, Josefsberg’s co-counsel asked Canseco to demonstrate how “lightly” he’d touched the guy. Josefsberg volunteered to be “touched.” Canseco hung himself, Josefsberg says, by shoving the 6-foot-5-inch, 270-pound attorney so hard, he almost fell down.
“He’s such a jerk, he couldn’t resist.” Josefsberg says with a laugh.
A verdict came down for substantial damages, though Josefsberg says Canseco has yet to pay a penny.
A Brooklyn Kid
Josefsberg grew up in the Bensonhurst section of Brooklyn, where, he recalls, “you couldn’t get in trouble” due to a sophisticated “informant system of mothers,” and neighborhood grocers who would look at your fake ID and scowl, “I don’t care what that ID says, Bobby. I know you, you’re 15, and you’re not buying beer.”
As a teen-ager he was undecided about a career—until he told his attorney father that he planned to be an engineer. “He approved, which puzzled me. I thought I was being pushed into being a lawyer, and when I saw I wasn’t, I realized it’s what I wanted to do.”
While a sophomore at Dartmouth, his older sister fixed him up with her freshman friend Marlene at Skidmore College. They met for homecoming weekend, dated four years (interrupted by a six-month period in which Marlene dumped him for being “immature”), and when they got married, Marlene helped put him through Yale Law School. She is co-founder of DFYIT—Drug Free Youth In Town, a youth-oriented substance abuse-prevention program, and the couple now have four children and 12 grandchildren, all of whose pictures can be seen adorning the walls of Josefsberg’s office.
After law school, the Josefsbergs were in search of a warmer climate and picked Miami so Marlene could be near her sister. The climate turned out also to be right for a smart white-collar criminal attorney to prosper.
Following a stint as assistant U.S. attorney, which gave him trial experience, Josefsberg joined Nichols, Gaither, Beckham, Colson, Spence & Hicks, before venturing out with his brother-in-law Daniel to form Pearson & Josefsberg.
In 1970, Jim Morrison retained him. The Doors’ lead singer was accused of indecent exposure and simulating a sex act on guitarist Robby Krieger during a Miami concert, which drew “decency” advocates including Anita Bryant and Pat Boone to the barricades. Josefsberg describes the Morrison he knew during those six weeks as “very humorous, decent and kind. We had a lot of laughs.”
Morrison was acquitted of the felony charge but found guilty of misdemeanors, but the rock star died in Paris while those were on appeal.
Life Throws a Curveball
Josefsberg had attracted a lot of attention, and the practice was blooming nicely.
All that was put in jeopardy in 1974 when Josefsberg contracted cancer of the soft palate. Doctors excised part of the palate, which left him unable to speak clearly, so that even his name was hard to understand. For the next year, speech therapy included blowing a ping-pong ball in place at a 45-degree angle on a Scrabble tile rack. It was the only time in his career he seriously thought about giving up lawyering and becoming, say, a judge. “I’d just have to say ‘granted’ or ‘denied,’” he half-jokes.
And that’s when Glenwood Winters, aka Jackie, walked into his life.
After a second surgery, Josefsberg received a court-appointed case defending Winters, an African-American transvestite who’d been beaten up in a bar, left, later returned, and ended up in a scuffle that resulted in the death of Winters’ attacker from a knife wound. At the trial, Josefsberg proved that it was the assailant who’d brandished the knife. Then the attorney put his arm around the cross-dresser and told the jury, “Glenwood is everything I want my kids to be, which is whatever they want to be.” When the Dade County jury returned a verdict of “not guilty,” Josefsberg knew that he’d regained both the ability to be understood, and the power to persuade.
“During those two years, I became very appreciative and very humble. But I overcame that,” he laughs.
The law partnership came to an end in 1979 when Pearson was appointed to the bench. Josefsberg then served as special counsel to Gov. Bob Graham. In 1980 he joined Podhurst, where he’s remained ever since.
Drawing the Line
These days, he’s able to pick and choose his cases.
“I like being on the correct side. I see myself as a white knight. Ever so often when I leave the courtroom, I want people to whisper, ‘Who was that Masked Man?’”
Being on “the correct side” means not always getting your client off scot-free on a technicality.
“I’m not going to place myself in a position to allow [a defendant] to continue to do wrong and to hurt themselves or others,” he says. “I’ve had cases where a young person could’ve won on a motion to suppress, but I told him I want him to get a sentence that requires he get treatment under probation.”
Also, because of his wife’s lifelong work, Josefsberg refuses to represent people in the drug business.
Former colleague Perwin says, “There’s not a family in Dade County that Bob hasn’t helped in one way or another: Their kid was in trouble, there was some kind of litigation; Bob has never said no. As a result, the total amount of fees he’s brought in a 30-year period is about $250.”
Those “fees” may be slightly off, but in fact, Josefsberg is famous within the legal community for the amount of pro-bono work he performs—some 300 hours annually, he estimates. He regularly receives awards from beneficiaries, such as Put Something Back, Legal Aid Society, Dade County Bar, Legal Services of Greater Miami, Inc., and B’nai Brith Bench & Bar Unit. He recently received the Toby Simon Pro Bono Award from the Florida Supreme Court.
Bob Sondak, a commercial litigation lawyer with Cohen, Chase, Hoffman & Schimmel, has known Josefsberg for about 30 years, but hadn’t opposed him in court until 2002.
“All I can say is that Bob came into this years-old case late, replacing other attorneys who had a conflict, and in the space of 30 days managed to trounce me in court, and did it in such a nice way, I couldn’t even get mad at him.
“He gives off such an aura of trustworthiness, after a few days you want to hand him your wallet.”
A Civil Affair
Befitting a past president of the International Academy of Trial Lawyers (IATL), Josefsberg bemoans the lack of cases that now reach trial. As a result, while he’s at an age where he’d like to reduce his caseload, he’s had to double it to continue getting the trial work he loves.
“It used to be, [if] I had a 50-case caseload, 10 would go to trial. Now, out of 50 cases, maybe one makes it.
“These days, everything is ‘resolved’ through arbitrations, mediations. Businesses are risk-averse and afraid to go to trial.”
He believes the present scenario hurts the current generation of attorneys. “When I began at the Nichols firm, the senior partners gave us every rear-end whiplash case to try. I’d make a closing argument in one case and walk over to another courtroom and pick a jury. We all did that.
“Nowadays, there’s not much of a crop to pick and there’re a lot more crop-pickers.
“Young lawyers are told, ‘You can’t handle the big cases till you get trial experience,’ and they can’t get trial experience.”
This paucity of trial cases contributes to what is perhaps Josefsberg’s chief gripe.
In 1994, while serving as dean at the IATL, he gave a highly touted and much re-published speech about civility. Or, more accurately, the decline of such.
Among his points: Civility, which according to the dictionary is “courtesy, dignity, decency and kindness,” has largely been replaced, Josefsberg argued in his speech, by Rambo-style take-no-prisoner attorneys who feel they have to take on, and even fuel, the rage of their clients.
It’s not coincidental that the public image of lawyers, once regarded as “the peacemakers,” has suffered greatly during this period.
Since attorneys no longer face each other regularly in the courtroom, they lose a sense of community.
The most important component in Josefsberg’s nine-point plan to restore civility is mentoring young lawyers, teaching them that they can zealously defend their clients while remaining courteous.
As proof that civility pays off, Josefsberg says a quarter of his business comes from opposing clients and attorneys he treated with dignity, and that the first time he encountered Podhurst professionally was as opposing counsel.
“One reason I’m good at [lawyering] is my Brooklyn upbringing. I’m pretty simple. I talk plain language,” says Josefsberg. “Jurors hate when they think lawyers don’t believe they’re smart enough to understand a case. The objective in trying a case is to synthesize and simplify. That’s why I’m very good with children. That’s why my wife learned that my immaturity is good.
“I have not changed my office furniture for 28 years. A lawyer’s imagery is personified by his desk. Some lawyers have a lot of glass, a lot of chrome, a lot of glitz. Mine is Viking Oak. I have something that is very strong, tasteful, decent and understated. When someone comes in here and wants a quick fix, they look around and see that I do things the old-fashioned way, and the right way.”
And, he might have added, the civil way.