Jerry Falk Almost Always Gets the Last Word

It's so much fun winning appeals for clients  

Published in 2008 Northern California Super Lawyers — August 2008

Spend some time with San Francisco appellate lawyer Jerome B. Falk and you will hear the same word repeatedly: "fun." Appearing before the Supreme Court of the United States to argue the fine points of the Howard Hughes estate is "a lot of fun." Sitting in an office, surrounded by boxes and boxes of documents, getting ready to dive into a case, is "the most fun."

At times, Falk's job and his conscience have forced him to take unpopular stands on issues. To avoid unpopular positions, he says, would "take all the fun out of it."

Falk even found fun in what others might see as an exhausting—if exclusive—apprenticeship, his clerkship with Supreme Court Justice William O. Douglas.

During his more than 40 years with Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Falk has helped guide the firm in its growth from 10 attorneys to approximately 120.

"He really enjoys being a lawyer," says Howard Rice director Steve Mayer, who says he has worked with Falk on "probably 50 cases." "I never get a sense that, to him, anything is drudgery."

"He's got an infectious enthusiasm about his cases," adds Amy Margolin, also a Howard Rice director. "He loves to dig into a case, grapple with difficult problems and find a solution."

Falk was raised in San Francisco. After his graduation from Lowell High School—two years after Supreme Court Justice Stephen Breyer—Falk moved on to UC Berkeley, an experience that, he says, "changed [my] political outlook."

In 1964, while Falk was at Boalt Hall School of Law, the Free Speech Movement erupted on campus. Falk, the son of moderate Republicans, did not join the protests. Instead of climbing atop a parked police car, he studied and debated the issues with his law school classmates.

"None of us at the law school got arrested," he recalls. "We were pretty timid. But it seemed quite clear to me that my beloved university was completely in the wrong in trying to squelch political speech on campus."

Inside the law school, Falk and his cohorts had heated discussions on the merits of the movement, the boundaries allowed the university and the precedents already established. "There were huge arguments," Falk says. "We gave it a lot of thought."

For Falk, the situation clarified the importance of law—and clarity in law—in settling explosive situations. "The law was not clear," he says. "Today a court would have no problem declaring those restrictions unconstitutional. It would have worked its way through the courts. Instead, it was handled politically."

Somewhere around that time of campus turmoil, the House Committee on Un-American Activities and civil rights, Falk says, he became a committed civil libertarian.

After college, he was chosen as the sole clerk to Douglas—a year of indentured servitude at slave wages. Naturally, Falk loved it.

"I had to write 50 to 60 memos a week, work on opinions and stay applications, speeches and things," Falk remembers. "I was going seven days a week."

In Douglas' mind, a clerkship was lawyer boot camp. If Falk could survive during his year with Douglas, he would emerge fully developed, ready to handle whatever came his way next.

Douglas was from the oldest of old schools. He was "all business" during the workweek, piling the paper onto his eager clerk's desk, speaking directly and tersely, dishing out compliments about as often as the Vatican chooses a new pope.

Occasionally, after hours on a Friday night, Douglas would call the young clerk into his office, unscrew the cap on some bourbon and tell stories of his colorful career, but he never gave Falk an indication of satisfaction with his work.

"I think I would have spent the whole year not knowing what he thought," he says, "except that one day the secretary showed me a letter he'd sent to the dean of Yale Law, where he'd taught."

In the letter, Falk says, Douglas wrote, "I don't know if you're hiring, but if you are, you should talk to my clerk. He's pretty good."

Many years later, at a dinner for former Douglas clerks, Douglas' widow told Falk that each night, at the dinner table, the cantankerous old justice would speak proudly of his clerk. "He would talk about you with such pride," Falk recalls Cathy Douglas saying. "I know he never said anything like that to you in the office, but he would tell me."

In 1966, following his clerkship, Falk returned to California, where he found he had his pick of employers. As he saw it, his needs at the time were simple.

"I wanted to do some pro bono work," he remembers, "and I wanted to work with really smart people."

Enter what has grown into Howard, Rice, Nemerovski, Canady, Falk & Rabkin. "I looked at the Martindale listing for this little firm. It had some extraordinary people."

The firm's small but impressive roster included firm founder Henry Howard, Stuart Pollack and Howard Nemerovski, all of whom played a role in developing the career of the young Falk, often by simply keeping their hands off.

"Henry [Howard], a smart guy, hired all these smart young people and then gave them all this latitude," he says. "He didn't try to dominate the firm. He let us run things."

The firm's small size allowed Falk to dabble in many practice areas. He soon found that he enjoyed litigation above all else. Thanks to a few early high-profile appeals, Falk earned "a reputation as someone who would do an appeal."

In 1975, Falk made his first appearance at the U.S. Supreme Court. (He has appeared there three other times since.) Unlike most Supreme Court neophytes, when Falk took his place, he gazed out at a bench full of familiar faces. "I was a little nervous," Falk remembers. "It was intense."

Intense or not, Falk argued his case successfully.

 

Falk is a man comfortable with stability. He has been with the same firm his entire career. He has been married since 1963, and he and his wife have lived in the same house in Berkeley for 35 years. Once he found his niche as an appellate specialist, he simply built his practice until he was at the top of his field.

Unlike Southern California, where appellate practice is dominated by a few large firms, the Northern California appellate community is divvied up among individuals and boutique firms, with a few big names—like Dennis Riordan and, yes, Falk—appearing over and over in major cases. During his career, Falk has represented the Oakland Raiders, the state of California, the city of San Francisco, Toshiba, McKesson, American Express and the Irvine Company.

Indeed, for someone who claims to not "fit the personality type" of the classic appellate lawyer, he has built an impressive résumé. "A lot of people who do appellate, they're more inner-directed," he says. "That's not me."

Falk is a team player who takes his role as a mentor seriously. He has applied the lessons of hard work he learned from Douglas and tempered them with a resolution to "remind myself to give people compliments and tell them when they've done well."

According to Margolin, who was born right around the time Falk began working at Howard Rice, "He demands the highest quality of work from us, but he does it in a way that really inspires people."

Falk is comfortable sharing credit. He is quick to mention that Howard Rice's entire appellate team—which numbers eight directors—is responsible for the firm's success.

"He's not afraid to say to anyone, no matter where they are on the masthead, that their idea is terrific, and that he'd never thought of that. For Jerry, it doesn't matter where anyone is on the food chain. He's more interested in your smarts and what you have to contribute," says Margolin.

In Falk's most recent high-profile case, he represented Genentech in a breach of contract and breach of fiduciary duty suit with City of Hope. Naturally, he describes a recent appearance in front of the California Supreme Court as "a ton of fun." While the court affirmed a $300 million judgment against Falk's client, it also threw out $200 million in punitive damages.

In person, Falk resembles the journalist David Halberstam, a giant in his own field. His demeanor is casual and comfortable, which shouldn't be taken for a lack of intensity. Ask him about lawyers who let their personalities overwhelm their professional responsibilities and he dials up his focus. "There are lawyers I've come up against," he says. "Their behavior was so bad ... I would do anything to squash them. So those cases don't settle. You just want to rip their throats out."

He says this with something like regret. "I have a theory that in most cases, it's not a conscious choice to be a Rambo. They can't control themselves."

At 67, Falk is at an age where one would expect "retirement" to at least be hovering on the periphery. While he is active in several charitable organizations, including East Meets West, a foundation dedicated to improving the lives of children in Vietnam, Falk says he is nowhere near the finish line of his career.

"I love to do this," he says. "I love to write, I love to analyze. I love getting whatever number of Beacons [moving] boxes, sitting in a room with them and trying to figure out what are the most important things to read.

"[But] I don't want to be someone who has to be told, ‘You don't have it anymore,'" Falk adds. "I'm going to figure that out before anyone has to tell me. Thank God I'm not there yet."

Falk has made himself very successful while never straying from the tenets and beliefs that brought him into the game in the first place, and while staying committed to the idea of working at full capacity, something he learned while clerking for Douglas.

"I never missed a deadline," he says, proudly. "To me this is fascinating. I came close many times, but I never missed one. I could tell you that this reflects extremely well on me, but the truth is that [Douglas] was managing my work. He knew what I could do, and he never made it easy on me, but he never set me up to fail, either."

It is the "clean slate" of a new case, he says, the figuring out which argument to use, how to manage the case, that keeps him fresh and motivated.

"Challenges are what keep me going," says Falk. "If it were easy, it wouldn't be any fun."

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