Flip the Script

When Luke Ellis gets a case, the first thing he does is tear it apart

Published in 2015 Northern California Super Lawyers — August 2015

Q: I understand you pride yourself on changing the narrative of a case. What exactly does that mean?

A: You really have to start from the beginning, look at the evidence and take everything apart, because a lot of times the true narrative of the case is not what’s apparent in the police report. I worked a year ago or so on a case [involving] a young woman. She was 18. The bus was late. It was night. It was raining. She ran across the street against the light near a crosswalk. The light was green for the bus.

There was a grainy video on the bus that captured a small portion of this. You see a dark figure suddenly in front of the bus. The bus driver screams and runs over my client. The police put 100 percent fault on the girl. It’s probably a case everybody would look at and say, “Well, there’s no liability from the bus company.”

The brother came to see us; there was something that didn’t feel right about the case, about why the girl [Jung Hye Lee] would move out to the street like that. She was in Stanford [Medical Center]; I really couldn’t talk to her for almost a full year. She had horrible injuries—amputation, a crushed pelvis—just really a devastating, catastrophic injury. The mom, who brought the children here [from Korea] at a very young age, was a helper in a Korean restaurant, waiting tables and preparing food. They [were] well, well below the poverty line. They were wonderful people: hardworking, honest. I could tell that. [Jung Hye] Lee, she was working at a yogurt shop, trying to support herself; volunteering at a hospice and going to college to be a nurse.

It turned out that there wasn’t just this one tape. There were five or six different views. The police looked at, it turned out, 5 percent—less than that—of what was available. I got with experts and we looked at the film. The camera was not placed at the driver’s eye.

We basically were able to recreate [the scene] by having somebody run across on a dark night with rain at that very intersection. We had somebody who was the same height, weight, dress as Miss Lee do exactly what she did. [In our re-creation] it wasn’t “our client” jumping out with two seconds to spare; “our client” was visible for eight seconds, clearly trying to catch this bus that should have stopped at that stop.

Back to your question about changing the narrative. It suddenly became, “What did the bus driver see and what were the bus driver’s obligations?” I went to the site of that accident maybe 100 times, in addition to the film, just sitting there watching the bus, watching the people, talking to people, meeting with my investigator out there, meeting with experts. It turns out that bus stop was across the street from the lights. A lot of the trees had overgrown the bus stop. Nobody stood on the bus stop side, because if you stood on the bus stop side, there were no lights. There were trees; it was right next to the freeway; it felt weird, particularly for a young woman there at night. That bus driver, she would see people coming across the street. They would wait on the lighted side by the restaurant and [then] come across the street to the bus stop.

So we were able to change the story suddenly to, “Here’s a young gal that just started a job. It’s night. She’s nervous. The bus didn’t come. Now the bus comes and as it turns the corner, it looks like it’s going to stop. She expects it to stop, because it stopped for her every other time. This time, for whatever reason, the bus driver doesn’t and then just drives, panics, keeps going for 100 feet and keeps running her over: front wheels, back wheels.”

Suddenly, the bus company [Alameda-Contra Costa Transit District] is faced with a situation of, wait a second. This is a professional driver. She knows this particular bus stop. She needs to be careful. All of a sudden, from being 100 percent our client’s fault, I think we were able to change the story, change the narrative, to make AC Transit understand there was responsibility. That’s their job, to be on the lookout for passengers and to stop for them. [Editor’s note: Defense contended that Lee ran in front of the bus and another vehicle; and that the bus driver looked to the right but saw no passengers and drove on, and saw Lee seconds before impact but couldn’t stop in time.]

 

Q: How did it turn out?

A: $20.4 million. It was the largest amount ever paid by any bus company in the state—private or public—to an individual, ever. This was a settlement shortly before trial.

So that’s what I mean about changing the narrative. When you get a case, typically you get the police reports, you get some things and you get a story, but it’s not necessarily the truth. It’s not that the police are lying, but they’re just busy. They’re focusing on a lot of things on their plate. You just have to start from fresh. Go to the scene. Start all over.

 

Q: Going into law wasn’t your original plan as an undergrad, right?

A: I was in early childhood education.

 

Q: Quite a change.

A: Big jump. While I was at Berkeley, I was working at a preschool, and then was finishing up my degree at Antioch. I was interning at a rural elementary school in Ohio, and it suddenly dawned on me that I just felt too isolated and removed from what was going on in society.

Between the Vietnam War and watching Watergate unfold and all the lawyers—both being examined and cross-examining the witnesses—I was fascinated. Law school seemed to be a logical place for me to get more involved and engaged.

 

Q: And you started out as a criminal defense attorney?

A: Berkeley gave me the freedom to go get engaged. After your first year, you could engage yourself in public service or go intern or work. One of the programs was with the Alameda County Public Defender’s Office. Starting my second year, I was down there every minute that I could, because that’s where I wanted to be: criminal law, representing indigent defendants who couldn’t afford counsel. Then after I graduated … a friend of mine from the Public Defender’s Office—Jeff Tauber, who later became a judge—and I formed a criminal law practice in downtown Oakland.

Mostly court-appointed, indigent work. You start and you work your way up the ladder to more serious cases. Because it was sort of a natural inclination of mine to work with kids, I started in the juvenile court system. I’d represent the indigent minor either in a custody hearing, or they would be arrested for burglary or shoplifting or robbery.

 

Q: And you’re still involved in helping kids.

A: This is my 15th year teaching mock trial at Miramonte High School. It’s a great program—a lot of work, but it’s something we feel really strongly about. We helped financially when the courts got cut back. The programs were at risk—not only mock trial, but AcaDeca [Academic Decathlon], Model UN. Our law firm is a major donor to the Academic Events program at Contra Costa County [Office of Education].

Opening the courts at night for the kids to come in requires overtime for the sheriffs, and they can’t just let the kids run around in the courts unchaperoned. The metal detectors are still there and the guards are there. So it’s quite an expense.

 

Q: Why is it important to hold these things in the actual courthouse?

A: The kids are in the halls of justice. The courtrooms are big and kind of intimidating. They have to get through that. Being in the courtroom, having a judge sit up higher than them; some person who’s two or three times older than they are, grilling them with questions about different evidentiary rules—they’re in awe at first, and then they learn critical thinking, how to deal with adults, how to work under pressure, even if they don’t go off to law school.

You watch the kids mature in the program. They’re gawky. They haven’t grown into their bodies or their voices or their confidence. I love to work with the freshmen and watch them come back and get better and better and better. Finally, as seniors, they look like third- and fourth-year lawyers. They’re that good.

 

Q: Did you have mentors along the way?

A: I had some great professors [at Berkeley] that I’ve kept in touch with since, who were very inspiring and really got me engaged. One in particular has been a lifelong friend and mentor, [UC Berkeley law professor] Jesse Choper, who was dean and taught constitutional law.

That was the height of Watergate, right before Nixon resigned. [Nixon] fired the special prosecutor and then everybody was resigning, and there was this whole thing of how could this happen that you fire these people. The law school was ready to go out on strike—the law students—and Jesse was at the forefront, getting everybody focused and collected. He and I have been friends since.

 

Q: And before Berkeley you were at Antioch. What was that like?

A: I grew up in Laurel Canyon in the Hollywood Hills; I wanted to get out of LA. I chose Antioch because they had a work-study program. It was 1968. There was a lot of anti-war activity in that area in rural Ohio, so a lot of speakers. Allen Ginsberg and anti-war protesters would come there. My parents, I think, were liberal Democrats, but it definitely was eye-opening and a political awakening.

It was so hot in that first summer there, I went to stay with a college roommate in Chicago, and little did I know that the Chicago [Democratic] Convention was going on. I just didn’t put the two together. It was really just because it was air-conditioned and we’d get out of Yellow Springs [Ohio] for a little bit. [There were] demonstrations and marches, and the police were arresting people. People were running, literally running for their lives, in the park. It was a wake-up call, for sure.

 

Q: Did that influence your decision to go into law?

A: It certainly politicized me more. Being in Yellow Springs, I think, politicized me.

 

Q: And you ultimately switched from criminal defense to personal injury.

A: A lot of criminal defense lawyers do make a switch to plaintiff's personal injury. I was co-counsel in a murder trial defending Huey Newton, who was co-founder of the Black Panther Party. Ultimately we prevailed on it. That was a long trial. I just needed a break from that intensity. About the same time, a friend of mine, Andy Gillin, who had been with a Bay Area legal service for the poor, was looking for a litigation partner. It just seemed perfect, representing people against corporations and insurance companies.

 

Q: Was it a difficult transition to personal injury?

A: It was different, but the trial experience is critical. Picking a jury, getting documents and physical evidence admitted, is essential. You see a lot of big firms, hourly firms, where young associates aren’t getting experience. They have programs where they farm [an attorney] out to the public defenders or the district attorney for a year. You get so much experience and you’re able to try so many cases, you can then transition over to a personal injury case or a civil case, because the rules of evidence are the same.

Picking a jury, dealing with judges, dealing with that dynamic—that’s critical experience that you can’t always get in the civil arena. A lot of civil cases don’t go to trial.

 

Q: What do you think of that trend?

A: Well, I’d rather be in trial. But the cases that I’m working on now are very, very complicated. I really enjoy the three-dimensional kind of chess piece of putting the case together, unwinding it, spending hours and hours at the scene of an accident, and looking at critical pieces of evidence.

I’ll get a big case with a serious injury, catastrophic injury, which are my cases now. Maybe I’ll handle five of those at any given time. Somebody has either been killed, sadly, or there’s some horrible injury, paralysis, amputation. Those are the cases that I’m involved with. Typically, there are a lot of depositions, a lot of workup, and a lot of careful analysis. So I do enjoy that process. It’s like a puzzle in a way.

 

Q: What do you like best about your job?

A: It’s really, really a rewarding practice. I can’t say that there’s been a time where I’ve ever wanted to leave it. I feel like I’m doing something good with my life and my time. I’m helping people that need help.

The jury system in this country is unbelievable, where you can have equal footing against a major corporation or a county or a huge insurance company with unlimited resources. You can tell a person’s story and present that case, and you’re the same as that big corporation or government entity and you have equal footing in the eyes of the law.

 

Q: How do you make sure you get a good jury?

A: I have honest talks with jurors. I credit my criminal law background with being able to pick a jury because, boy, as a criminal lawyer, sometimes you don’t like your client. Sometimes they’re scary. Sometimes they’ve done something or have been accused of doing something really terrible and you’ve got to try to pick a fair jury. So you can’t be timid.

A lot of lawyers are afraid to ask open-ended questions. They might say, “You can be fair, can’t you?” And then you’ll say yes. “You’ll give my client a fair chance, won’t you?” And then you’ll say yes. Those are close-ended questions. I haven’t learned about the way you feel. Who’s going to say, “No, I’m not fair”?

You have to get over that uncomfortableness. If you don’t get the feelings of people out on the table and get the elephant in the room and talk about it a little bit, you’re in trouble.

I get people that will listen and give me a shot and be open. That’s all I want.

 

This interview has been edited and condensed.

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