The 800-Pound Piranha
David Markowitz is a courtroom giant—and a gentle soul
Published in 2009 Oregon Super Lawyers magazine
By Susan G. Hauser on November 12, 2009
The first time Lynn Stafford tried a jury case with David Markowitz, her 6-foot-4-inch, 300-pound law partner leaned over and said, “Now, Lynn, I can’t get up in front of a jury and be in their face. I am too big and I will be too intimidating.”
Markowitz instructed Stafford to take the more aggressive stance while he remained the quiet background presence. Stafford, who retired from Markowitz Herbold Glade & Mehlhaf last year, recalls that Markowitz’s nudging helped her develop a demonstrative courtroom style that would serve her well for the next 20 years.
In hindsight, she doubts her friend really would have gotten in jurors’ faces. Markowitz is more Ferdinand the Bull than Raging Bull.
Widely regarded as one of the best trial lawyers in the region, Markowitz deals with the stress of high-profile business litigation not by pumping iron or throwing punches, but by gazing meditatively at his extensive stamp collection. And rather than haranguing a jury, Markowitz becomes thoughtful, professorial and engaging.
“He has a way of making even the driest case interesting,” comments Judge Ellen F. Rosenblum of the Oregon Court of Appeals. “Believe it or not, that is important both to judges and to juries.”
“I think that jurors come to view Dave when he’s trying a case not so much as a lawyer for one of the parties but as a teacher of the truth about the case,” says George L. Kirklin of Kirklin Thompson & Pope, who worked at Spears Lubersky (now Lane Powell) when Markowitz was hired there in 1974. “And when you have accomplished that and you’re the guy the jury turns to for the truth about a case, you have probably won the case for your client.”
Markowitz’s office is a landscape of spheres, with every surface covered with crystal balls of all sizes. Each member of the firm chose a “marker,” a gift presented to the lawyer after every successful completion of a trial. As evidenced by his veritable Milky Way of spheres—Markowitz’s choice of marker—his success rate is remarkable, which makes him a formidable figure regardless of dimensions. When another lawyer recommended him to a client, describing him as a “300-pound piranha,” a paralegal in the firm posted the note on the bulletin board. Markowitz was embarrassed by the accurate guess of his weight. Just for fun, and as a diversionary tactic, he edited the recommendation letter to change the description to “800-pound piranha.” Then he promptly set out to lose 50 pounds.
The “800-pound piranha” sobriquet stuck. And when he won a case not long after that, the opposing lawyer paid tribute to Markowitz’s courtroom skills by presenting him with a petrified piranha. Weight undetermined.
Talk about a revolution
There was something about Markowitz that convinced Barrie Herbold he could help bring her revolutionary vision to fruition. Back in 1982, Herbold shared with him her idea for starting a boutique commercial litigation firm that would put into action what were then extreme feminist principles: strong support for women attorneys, families and personal fulfillment.
“Essentially, what she wanted to prove was that women could be very successful in the practice of law, particularly in the practice of trial work, which sounds like such an obvious thing today but wasn’t very obvious 30 years ago,” says Markowitz.
He believes he and Herbold, who died of cancer in October 2001, really clicked because they were both of the ’60s generation. “Peace was my issue, and Barrie was into freedom.”
She became managing partner of the new two-person firm, introducing to Portland far-out notions—such as sabbaticals for all employees—that are standard today. Part of her vision was to have a completely open firm in all respects. Besides working as a team, members of the firm would never be isolated by cubicles or solid walls.
Today, all of the 30th-floor offices in the Pacwest Center, including Markowitz’s northeast corner space, have glass walls. Everyone has a view of the Willamette River or the West Hills and everyone enjoys the benefits of natural light. In Herbold’s honor, the firm still bears her name.
Stafford, who joined the firm in 1986, recalls that Markowitz & Herbold was like no other law office she had experienced. “It was: ‘How can we make this firm a better place to work? We work darn hard at a stressful business, so how can we make it work for women and make it decent for all our employees?’” At one point, at a time when women litigators were about as common as, say, 800-pound piranhas, female partners in the firm outnumbered the men.
But Markowitz was a perfect fit, Stafford recalls. Not only did he support the people-first concept, but he did everything in his power to help these rare birds—women litigators—fly with their own wings.
“He’s just got unbelievable mentoring skills,” she says. “He brought many of us along from quite young lawyers to successful trial lawyers. If he weren’t a trial lawyer, he would be a teacher.”
Markowitz comes by his knack for teaching naturally. His mother became a teacher after raising her two children. His sister and brother-in-law teach math. His father, Harry Markowitz, also a teacher, earned a Ph.D. in economics at the University of Chicago and went to work for the RAND Corporation. In 1990, he was awarded the Nobel Prize in economics for his stock-market portfolio theory, about managing risk through diversification. His son treasures the memory of the night Dr. Markowitz, who still lives and teaches in San Diego, dressed in white tie and tails for the Stockholm ceremony.
Markowitz looks forward to any teaching opportunity. He accepts invitations from around the country to give day-long classes, and he makes regular appearances at the Oregon Law Institute, where he shares what he knows with young lawyers.
Markowitz has spent the past 35 years keeping track of his observations of the best techniques and strategies, which he then shares in his classes. It’s his way of giving back while helping to elevate the profession.
“I focus on what I’m doing and what others in the courtroom with me are doing,” he says. “I catalog what I’m observing, and then I analyze it and organize it in a way that every lawyer could understand.”
Sounds dry, but as soon as Markowitz announces a class, such as the ever-popular “Deposition Techniques,” it fills up promptly. “We just can’t get enough of him,” says Elizabeth M. Stephens, director of the Oregon Law Institute and assistant dean for CLE (continuing legal education) at Lewis & Clark Law School. “He’s completely engaging. The firms are sending the newer lawyers because they know the kind of training he will give them is just first rate.”
A list of some of Markowitz’s cases that have made the local news reads like the programming schedule for TV’s Family Feud. There was Naito v. Naito, in which the families of civic leaders and brothers Sam and the late Bill Naito fought over dividing the family business; and Phil v. Will, with Nike’s Phil Knight wrangling with Claymation creator Will Vinton, whom Markowitz represented, to gain control of his studio. Then Nike was back in the action, in a contract dispute with tennis star Andre Agassi.
Markowitz represented Agassi. Stafford remembers him giving the celebrity athlete a crash course in deposition techniques—namely the fact that Agassi shouldn’t say anything more than necessary, preferably just “yes” or “no.”
“Agassi said, ‘I don’t know if I can do that. I’ve spent my life answering questions when I’ve had nothing to say,’” Stafford recalls with a laugh.
Once he learned how to talk to lawyers, as opposed to reporters, Agassi was so grateful for Markowitz’s help that he named him to the board of the Andre Agassi Foundation. Markowitz is listed on the Web site, right after Elton John and famed chef Emeril Lagasse.
Another case with celebrity connections fell into Markowitz’s lap in what was for him a dream come true. The widow of actor John Belushi was suing House of Blues, a chain of music clubs founded by Belushi’s comedy partner, Dan Aykroyd, and others in the wake of The Bues Brothers film success, over the chain’s licensing agreement of the Blues Brothers image.
The case ended up in Portland because the original agreement had been drawn up by the widow’s sister, a lawyer in Portland. She wrote into the agreement that any disputes would be arbitrated in Portland.
“This is a true story,” Markowitz begins, relishing the details. “I’ve seen the movie The Blues Brothers over 100 times. I owned it on Beta when it cost $100 to buy a Beta tape. When somebody broke into my house and stole my Beta machine and I went out and bought a VHS machine, the first movie I replaced was The Blues Brothers. Now that I’m on DVD like everyone else, of course I had to go buy The Blues Brothers. I just love the music and the dancing and the comedy.”
It was a twist of fate that caused the general counsel from House of Blues to pick up the phone and call the No. 1 Blues Brothers fan. As his caller spelled out the details of the case and asked for his help, Markowitz thought, “There is a God!”
Markowitz kept the secret of his Blues Brothers obsession to himself. But, he says with a laugh, “The client was impressed that I could quote scenes from the movie, as if I was a quick study for the case.” In the end, most of the case got thrown out by the arbitrator on summary judgment.
Markowitz pauses after telling the story and says, “I’m such a lucky person.”
Others aren’t ready to give luck so much credit.
“He’s the best lawyer I’ve ever run up against,” says Richard C. Busse of Busse & Hunt. “He’s the only one I felt could just run rings around me [when they met in 1977]. He comes up with theories and arguments no one else can. Some of the cases he’s won are cases that no one else could win.”
“He is a spectacular lawyer,” agrees U.S. District Judge Owen M. Panner. “He is professional, ethical, competent. He’s an excellent trial lawyer, just a fine man.”
Markowitz has four grown children from his first marriage, and four young grandsons whom he adores. For the past 11 years he’s been married to Pam Markowitz, who was a paralegal at his office. She has since retired from the firm to focus on her passion, animal rescue, and the couple has welcomed four elderly, formerly unwanted mutts into their family. Looking after the dogs has cut into their travel time, particularly their once-frequent trips to Las Vegas.
“He was a terrific poker player,” says O. Meredith “Met” Wilson Jr., of Wilson Dispute Resolution. “If he’s interested in something, he concentrates on it hard. He introduced me to Texas Hold ’Em way before they showed it on TV.”
Cautions Kirklin with a chuckle, “You don’t want to play poker with David if you’ve been drinking.”
Markowitz, who has practiced law in Portland since 1974, isn’t the type to say he’ll never retire. In fact, he already has that second career picked out: stamp dealing.
Since he was 10 years old and his mother would leave him at the stamp and coin counter at New York City’s Macy’s or Gimbels while she shopped, the “little scraps of paper,” as he calls them, have given him immeasurable contentment.
Stamp collecting is a world apart from law, but it’s one that he enters every day, either admiring his own collection or perusing photos of stamps for sale online. He says it grounds him.
“It’s a different world,” he says. “It’s not a combatant world; it’s a gentle souls’ place.”
Turns out this guy isn’t so fierce after all. He may make quick work of opponents in the courtroom, but a piranha? Well, maybe if there’s one that gently gums its victims to death, analyzing and explaining the process along the way. In the end, they may even thank him.
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