David Tyra: Supreme Challenge

How this employment defense attorney with Kronick Moskovitz Tiedemann & Girard helped save California $2 billion

Published in 2011 Northern California Super Lawyers — August 2011

Q: What is the highlight of your career?

A: For sure it would be the oral argument in front of the [state] Supreme Court in Professional Engineers in California Government v. Schwarzenegger, which was just last October. In many ways it was nerve-wracking because, normally, oral argument in front of the Supreme Court is limited to 30 minutes. We got an order … that argument was being extended to 45 minutes a side, so already we knew there was going to be a lot of attention. And then, on top of that … [the court] granted permission to The California Channel to televise the hearing. So here it’s going to be this extended 45-minute oral argument on TV in front of the California Supreme Court—for me, it hasn’t gotten any bigger than that. I didn’t even get to say my name before Justice [Joyce] Kennard started asking her first question.

I’ll tell you the second really memorable moment for me, and it also comes in these furlough cases. [It] was in front of Judge Patrick Marlette in the Sacramento County Superior Court. When we walked into the courtroom that morning, there were, I would say, half a dozen television cameras crammed into the jury box, and then there was a big microphone array at counsel table for the attorneys, so it felt a little bit like when you see athletes at press conferences.

 

Q: This was the case in which you defended the state against public employee unions?

A: Since December of 2008, we’ve been litigating these cases full time. Governor Schwarzenegger made the policy decision to impose [state worker] furloughs because of the budget and cash crisis the state was experiencing at the end of 2008. It immediately became apparent that the unions were going to go to court to fight the furloughs.

 

Q: The suit brought by the Professional Engineers in California Government union was decided by the state Supreme Court in your favor?

A: [The court] found that the governor did not have the unilateral authority to furlough state employees. … What the Supreme Court found in Professional Engineers, however, is that—after the fact, while furloughs were occurring—the Legislature ratified the furlough program through enactments of various budget acts. … I’ll be candid with you: I would have loved to have gotten a decision that said the governor had the unilateral authority in a budgetary crisis, like the state found itself in, to take the action he took. That wasn’t the decision, but it was very satisfying to have gotten a decision from the Supreme Court that validated the furlough program.

 

Q: And now it’s all over?

A: No, there continues to be ongoing litigation regarding the former governor’s furlough program. The public employee unions that brought challenges to the furlough orders raised multiple theories in more than three dozen cases, and those cases were in various stages of development at the time that the Supreme Court issued its decision in Professional Engineers. So now what the courts and the parties are struggling with is what’s the impact of Professional Engineers on those remaining cases. We continue to litigate those issues.

 

Q: So the original cases were filed against Republican Gov. Schwarzenegger, and now they’re against Democratic Gov. Jerry Brown?

A: The named party … is the governor of California—regardless of whether he or she is Republican or Democrat. Yes, right now the current administration is defending the … furlough program based on a number of different arguments, but one of those arguments certainly is that the California Supreme Court’s decision in Professional Engineers validated the entirety of the furlough program.

 

Q: Did you save the state much money?

A: I think the sum total of those savings is in the range of $2.1 billion [for] February ’09 to June 2010.

 

Q: What did it feel like standing before the Supreme Court?

A: The moment wasn’t lost on me. This was a very important case that a lot of people were paying attention to, and stakes were very high. The stakes for the unions were very high; the stakes for the governor were very high. It was a very serious moment. I had spent hours and hours and hours preparing for it; I’d gone through three separate moot courts.

 

Q: Have you gotten tired of this case?

A: No, I can’t say that I have. There have been times when I’ve been physically tired. At one point in early 2010 … within a week’s period of time, we went from the trial court all the way to the California Supreme Court—with a stop in the Court of Appeal—and we filed three different emergency briefs within a 24-hour turnaround. That was a tough week. So, yeah, there’ve been times when I’ll have to admit these cases have worn me out a little bit, but I’ve certainly never gotten bored or intellectually tired of them.

 

Q: This was all pretty much new ground?

A: There wasn’t, frankly, any law on the books that spoke directly to furloughs when we started, so it really required a great deal of creativity and hard work to address all of the theories that have come up over the various cases that we’ve defended. … A lot of people put in a lot of really hard work on these cases and I’m very grateful to all of them. … There’s been a lot of good lawyering, I would say, in these cases on both sides. I have a lot of respect for the lawyers who’ve represented the unions. They’re good lawyers and they have fought hard to represent their clients and I’ve done the same.

 

Q: Were you initially drawn more to litigation or to employment law?

A: Litigation. When I got out of law school, I knew that I wanted to be a trial lawyer. I’ve tried lots of different kinds of cases. It was kind of happenstance, really, that as a young lawyer I got into labor and employment law. I was at a firm; there was a large institutional client of the firm that had several employment-related cases … and the partner that I was working with asked me if I’d be interested in working on these cases. I said sure. This was in the late ’80s—I started working on those cases and I’ve been working on labor and employment cases ever since.

 

Q: What do you like about them?

A: The facts are always interesting. You know, the emotions tend to run high, because [as] the old saying [goes], about the three most traumatic events in a person’s life are death, divorce and being terminated from your job. Every case is different and has to be approached uniquely. So it keeps my interest.

 

Q: What do you like least?

A: I suppose, like every private practitioner, time sheets and time management are sort of the bane of my existence. It would be so much easier to just sit down and do the law work and not have to worry about that; but, you know, we don’t have any other product to sell but our time and our expertise, so that’s how we have to keep track of it. I would say most of my colleagues in private practice, that tends to be what we grumble about, and I’m no different.

 

Q: Do you have any advice for law students?

A: I think it’s very different for law students today than when I came out of law school. … We were almost encouraged not to have a particular specialty but to sort of experience different practices of law, different substantive areas of law, and then, after two or three years of practice, kind of settle into one that seemed to suit us best. I don’t think current law students can afford to do that. I think specialization is critical now, because the job market is so difficult, and having a unique set of skills coming out of law school—having focused his or her studies in law school on a cutting-edge area of the law that’s just starting to emerge—will really give that student a leg up in the job market.

 

Q: What are some of those emerging areas?

A: One of the really interesting areas of the law—and it’s an area my firm is getting really active in—is the intersection between the proliferation of social networks and e-commerce and the law. There was a really interesting case that went up before the National Labor Relations Board just recently where an employee had made some disparaging comments about her supervisor on her Facebook page. The employer found out about that and terminated the employee. That case was settled before the NLRB could issue a decision, but I think those sorts of issues are going to become more and more prevalent. … There inevitably will be some clash between that [social network] activity and various areas of the law. I think it’s a really interesting and emerging area, and certainly one where there’s plenty of opportunity to grow, because there isn’t a lot of developed law on the subject. The pace of technology is much faster than the pace of change in the law, and so that’s an area where students coming out of law school can really have an opportunity to have an impact and get involved in an emerging issue.

 

Q: What are some of the ramifications?

A: Just as a for instance, and kind of sticking with my field of labor and employment, if your employer gives you a BlackBerry or some [other] kind of electronic device and says: Here’s this device, we want you to keep this with you at all times because we may send important emails or important information may come out in the middle of the night when you’re at home, and we need you to keep on top of this. And so you become one of those “CrackBerry” addicts, checking your messages at all hours of the night. Does that mean that you’re working and need to be compensated for that time? Or [an] employer provides an employee with an electronic device, and then that employee misuses that electronic device; sends improper material. What are the employer’s rights, and what rights of privacy, if any, does the employee have when using an employer-provided device? There are just all kinds of issues that come bubbling out of this use of electronic devices and the electronic workplace and social networks and all that. There are a lot of really interesting issues that I think courts are going to be grappling with in the next several years.

 

Q: When you started practicing law, did it differ from how you envisioned it?

A: It’s a lot more tedious than they make it appear. You never see on TV a young associate attorney wading through bankers boxes full of documents or answering hundreds of interrogatories that have been propounded in a case. It’s a lot more tedious than anyone is ever led to believe while they’re in law school. You have to be willing to put the time in and deal with that tedium. I turned 52 this year, and it wasn’t until two years ago that I got the opportunity to work on cases of the caliber of representing the governor of the state of California. [So] I guess my other piece of advice would be: Be patient. Your time will come, but be patient.

 

Q: Do you ever find yourself sympathizing with an employee?

A: Well, I’ve been a management-side lawyer for the entire time I’ve been doing labor and employment law. There certainly have been cases where I’ve gone to my client and said, “You know, the plaintiff’s got some pretty good arguments here, got some pretty good claims; this is probably not one we should go to the mat on because I don’t think the results are going to be great.” I think every defense lawyer, not just in the employment field but in every field, has a number of those moments where you go to your client and you say this probably wasn’t a [situation] that was handled in the best way and we’ve got some significant risks and we need to get this case resolved.

I try not to get caught up in the emotions—either the plaintiff’s anger at having been terminated or my client’s sort of righteous indignation that this employee they felt they had appropriately terminated has now turned around and sued them—because I just don’t think I’m doing my job well if I get caught up in all that. I try to keep my focus on the arguments that are being made, the issues in the case, and try to give my clients a realistic assessment of the strengths and weaknesses of their position—to let them know, yeah, I think this is a case where we should defend it vigorously because you did all the right things, or gee, no, I think this is a case where there might be some risk and we should probably see if we can’t get this thing wrapped up.

 

Q: You have to be the voice of reason.

A: I think that if I’m doing my job that’s exactly what I’m doing: bringing a distance from the emotions and a detached, rational  “Here’s where I think your weaknesses and strengths are; I think this is how we ought to proceed.” You know, I think that’s what we’re here for.

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