The Backstop

Nothing gets by the former college catcher Brad Brian

Published in 2007 Southern California Super Lawyers — February 2007

Maybe Brad D. Brian could have made it to The Show. After graduating in 1974, the star catcher at UC Berkeley was offered a chance to play professional baseball for the Baltimore Orioles. The offer, which would have taken him to the Orioles’ minor league affiliate in Lodi, Calif., was tempting. But Brian told the pro scout recruiting him that he had one condition.
 
“I said I’d agree to sign if the Orioles would give me a bonus large enough to pay for one year of law school tuition,” he recalls.
 
The scout would have none of it. “Law school?” he asked incredulously. “We don’t want no baseball player going to law school.”
 
That was as far as Brian got in pro baseball. But he did make it to law school—Harvard Law School, no less. Now he has made it to the major leagues of the profession of law. A partner at Munger, Tolles & Olson in Los Angeles, he has represented some of the country’s biggest corporations—from GE and Boeing to Northrop Grumman and General Dynamics—in both civil and criminal matters.
 
“Brad is just one of the most accomplished lawyers I’ve ever seen,” says Robert L. Corbin of Corbin & Fitzgerald in Los Angeles, who has teamed up with him in several cases. Corbin once represented a defendant whom Brian prosecuted for an armed bank robbery. “The thing that really distinguished Brad was he had tremendous confidence, but at the same time … he was extremely ethical,” he says.
 
Brian, 54, learned his courtroom craft as an assistant U.S. Attorney in Los Angeles and has been something of a jury trial nemesis for his former employer since going into private practice. In 1994, for example, he won an acquittal for Thomas Spiegel, former chief executive of a failed savings and loan, in a high-profile white-collar fraud case. In that case, some—maybe most—lawyers would have advised Spiegel to take a deal. After all, thrift industry executives weren’t exactly national heroes at the time, and many experts predicted the government would convict Spiegel on charges of looting Columbia Savings & Loan of Beverly Hills. But Brian went to trial with a bold strategy of blaming government regulators for Columbia’s problems. “We basically turned it around and put the government on trial,” he says.
 
During the trial, the defense obtained an audiotape of a conversation in which a key prosecution witness, Howard Schneider, discussed his prowess as a con man with a guy named Bob Westbrook. Brian made the most of the Perry Mason moment in cross-examination.
 
“Didn’t you tell [Westbrook] that you never met anybody who you couldn’t con out of something?” he asked.
 
“I don’t think so,” Schneider haltingly replied.
 
Then Brian played the tape to the jury:
 
Schneider: I have a knack of f***ing things up but, throughout my life, thank God, what’s always got [me] back up is being the best thief there is.
 
Westbrook: OK.
 
Schneider: I ain’t never met anyone who could con me out of anything. I never met anyone I can’t con out of something. Never.”
 
“That was you talking. … was it not?” Brian asked the witness.
 
“Sounded like me,” Schneider admitted.
 
“No further questions, your honor,” Brian concluded.
 
The lead prosecutor dismissed the defense’s theory, but the jury took only two hours to acquit Spiegel. “That case changed my life,” Brian says. “I started getting a lot of calls from people in trouble.”
 
Some of those people include executives at major international corporations. Recently Brian led the defense for Boeing against accusations that a lower-level employee stole trade secrets from a competitor to win a government contract. The aerospace giant agreed in June to pay a $50 million criminal fine and $615 million in civil penalties to resolve two federal investigations. But Brian and his colleagues won some key concessions from the Department of Justice—among them that Boeing would not itself be prosecuted in the future for the matter, even if the plea agreement were breached by Boeing; and there would be no breach of the agreement even if there was criminal conduct committed by an employee “classified at a level below executive management,” or if there was criminal conduct by anyone of a type different than that at issue in the case.
 
University of Connecticut law professor Leonard Orland has marveled at the deal, commenting on Counterpunch.org that “under this agreement, Boeing gets a pass. It’s pretty good negotiating.” Brian declined to comment on the deal, but those who know him see his fingerprints all over it. “He’s very effective in persuading very committed prosecutors that their risk of losing [at trial] is greater than the probability of winning,” says Corbin.
 
Though Brian’s thick hair is graying and he hasn’t played baseball for some time, he still has the husky, compact build of an athlete. He’s also got a relaxed manner and a booming voice perfectly suited to the courtroom. For an interview in a conference room at Munger Tolles, one of the powerhouse law firms on the West Coast, he dresses casually in an open-necked shirt, a green bracelet adorning one wrist.
 
Born in Merced, a farm town in California’s Central Valley, Brian at age 3 moved with his family to suburban South San Francisco, where his father became a legendary high school baseball coach. He sat behind the plate for South San Francisco High as a catcher and, he confesses, “playing for your father is pretty intense.” Both his parents attended Berkeley and, he says, “had a very strong sense of public service. … They believed in helping the community.”
 
Brian also attended Berkeley, graduating with both academic and athletic laurels—the catcher was voted MVP of the school’s baseball team. Then, having turned down the Baltimore Orioles, he went east to Harvard Law School, where he served as managing editor of the law review and graduated in 1977. But his career plans were vague. “I just knew I wanted to try cases,” he says.
 
He got his first chance to do that at the U.S. Attorney’s Office in Los Angeles, an experience he names as one of the most important of his career. As a prosecutor, he says, “You learn how to make decisions, how to try cases and—which is probably even more important—what it takes to make a case.
 
“Many lawyers spend way too much time on pretrial discovery,” he continues, expressing one of his recurrent criticisms of the profession. “What’s really important … is to figure out early in a case how good the case is and what it will take to win. You’ve got to have a strategic plan at the outset of a lawsuit.”
 
In other words, spadework is all. Much of Brian’s most important work goes on behind the scenes. He has conducted more than a hundred internal investigations for corporations and, on many occasions, saved clients millions of dollars and the embarrassment of publicity by negotiating settlements or persuading prosecutors not to file charges. In a way, he’s still a catcher, strategically calling pitches for clients and blocking the plate to get them out of trouble.
 
“There’s a very strong connection between playing sports and being a lawyer,” Brian observes. “I like to win and I’m very strategic.”
 
After leaving government service in 1981, Brian joined Munger Tolles and focused on developing its white-collar criminal defense business. In one massive fraud case, he represented Northrop Corp., now Northrop Grumman, which was accused, among other things, of falsifying tests on a guidance device for a nuclear-armed cruise missile. The company pleaded guilty in 1990 to 34 counts and agreed to pay the government $17 million, but Brian helped persuade prosecutors to drop 141 other charges.
 
Others he has gotten out of trouble include Bill Simon, a gubernatorial candidate in California, on whose behalf he persuaded a judge to throw out a jury’s $78 million fraud verdict. He also persuaded the government not to prosecute contractors (Shea-Kiewit-Kenny) accused of defectively constructing a subway tunnel beneath Hollywood Boulevard. In a pending matter, he is defending the law firm of Sidley Austin against dozens of suits alleging tax shelter malpractice.
 
“Brad is most happy when engaged in some challenge,” says Corbin. “It doesn’t matter if it involves law, public service or a professional organization. It could be athletics … he’s constantly engaged in problem solving and overcoming obstacles.”
 
However complicated and paper-intensive a case may be, Brian “knows his case,” says Joseph H. Zwicker, a former federal prosecutor who is now a partner at Choate, Hall & Stewart in Boston. “He knows every single piece of paper, every witness … he’s loaded for bear.”
 
Brian, a keen supporter of the arts, says he enjoys helping businesses in trouble, but that he also wanted to use his skills to help the larger community in L.A. “Lawyers are educated to be problem solvers,” he says, “and those skills are very usable in the community.” Shortly after the Northrop case concluded, he volunteered to serve as vice chairman of the Joffrey Ballet in Los Angeles for a year (while maintaining his law practice). Leading the nonprofit Joffrey out of financial disarray, he says, “gave me a whole different perspective—about decision making, running an organization, working with people, learning how to delegate.” In the unfamiliar position of seeking legal advice, he also realized the importance of not “sounding wimpish.”
 
Clients, he explains, “want your best judgment as to what they should do … they want your best advice. They don’t want lawyers hedging what they think.”
 
Among his other recent public-service projects, Brian helped set up a pro bono panel of 15 law firms to represent inmates in prisoner rights cases. And he overcame a few obstacles last March—including giving up the comforts of modern transportation and housing—when he traveled far from the comforts of his Pasadena home to Niger in Central Africa with his wife, Claire, a journalist, and the younger of their two daughters. Benefactors of the Nomad Foundation charity, they delivered vitamins and school supplies to remote villages and went native in the process. “We lived in huts with nomads,” Brian recalls.
 
Now he’s planning a return trip—a tribute of sorts to a teenager whom he met at one of the schools he visited in Niger. “He said, ‘Nobody ever comes back,’” Brian remembers. “I realized that you show your commitment in doing it more than once.”

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