From Justice Writ Small to Justice Writ Large

E. Michelle Drake’s transition from capital defense work to consumer law 

Published in 2019 Minnesota Super Lawyers magazine

By Dylan Thomas on July 11, 2019


E. Michelle Drake can’t say exactly what led her to focus so single-mindedly on helping “the little guy” as both a public defender and in her current class action and consumer law practice. But a summer job working at the St. Croix Boys Camp certainly had something to do with it.

At 19, Drake came home from Harvard University and went to the camp—a treatment program for kids involved in the juvenile justice system. The summer ended with a three-week canoe trip in Canada, and when it was over, Drake’s view of the criminal justice system had come into focus.

“If you have a lens into the kind of family structures that can produce the dysfunction that ultimately creates violent crime, you can never stop seeing this grownup as a child,” she says. “You can’t un-imagine their childhood, and it has to change the way you see them.”

Drake would eventually move to New Orleans to intern at the Louisiana Crisis Assistance Center; to the University of Oxford to take a class with death penalty expert Roger Hood; and to Atlanta, where as a law student she worked on a death penalty appeal with attorneys at the Southern Center for Human Rights.

For a time, she spent half the week during law school living 80 miles from campus in Springfield, Massachusetts, where former nurse Kristen Gilbert faced the death penalty for killing four veterans’ hospital patients. Drake had talked herself into a law clerk role for Gilbert’s trial defense team. “We had these motions in limine about all kinds of random stuff,” Drake says, “so I would write those, and then I would go to trial and then I would visit with Kristen in jail.”

Gilbert avoided the death penalty and in 2001 was sentenced to life in prison without the possibility of parole. She is currently in a federal women’s prison in Fort Worth, Texas. Drake and Gilbert correspond to this day, sharing updates about their lives.

“You can’t undo that experience with someone—where their life is on the line and they have to reckon with that,” she says. “It’s intense for both people. I think a bond is inevitably formed.

After graduating in 2001, Drake moved to Atlanta to begin her career as a Fulton County public defender before joining the team that opened the Georgia Capital Defender Office as a junior attorney. She found a place in a tight-knit community of friends and colleagues.

In one case, Drake established her client’s innocence using cellphone records, showing her client’s phone was not in the area where the crime was alleged to have occurred. The prosecutor got a hold of the same list of calls and started dialing numbers to ask if Drake’s client had really been the person on the phone.

“Irony of ironies, my client had been talking to a minister,” she says. The case was dismissed.

Even as her career quickly advanced in Atlanta, she considered her next move.

“If you’re good and you’re dedicated, and you’re in a place like Fulton County and you can handle big, violent cases, that can very quickly become all you have,” she says.

Drake came home to Minnesota in 2007, where she applied what she’d learned to a consumer and employment class action practice, joining Berger Montague in 2016. A shareholder, she manages the firm’s Minneapolis office and has totaled over $150 million in settlements and verdicts to date.

Nothing could be as visceral as fighting to keep a client off of death row. But making mortgage companies answer for force-placed insurance schemes or forcing the credit reporting companies to fix their algorithms is rewarding in a similar way.

“The goal is much more abstract, which is justice writ large,” she said. “Corporations can’t steal from people a little bit at a time. No death by a thousand cuts.” 

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