Great Heights

Imposing in stature, litigator David Herzog takes his work—not himself—seriously

Published in 2019 Indiana Super Lawyers Magazine — March 2019

In 2009, at the close of a monthlong trial in California, a jury ruled against David Herzog’s client, a Chinese manufacturer accused of producing contaminated fiberglass used in insulator rods that had allegedly caused several electrical failures. From the beginning, the jurors appeared unsympathetic to the foreign company, and raised their hands during voir dire when Herzog asked, “Who thinks we’re starting in a hole?” Ultimately, they concluded there must be something wrong with the products even though they said the plaintiff hadn’t proven its case. 

But there was one comment that caught Herzog off guard. While talking to the jurors after the trial, one of them commented, “Oh gosh, you’re so big.”

“It has always occurred to me that my size could be intimidating,” says Herzog, 63, a partner at Faegre Baker Daniels in Indianapolis who stands just over 6-foot-4. “I have to be mindful of that because I don’t want to appear to be unfair or seeking to take advantage of it. On the other hand, I believe that there are times when my height and presence work to my advantage. That said, I’d like to think that my preparedness and the commitment that I demonstrate are what serve me best.”

In nearly 40 years of practice, Herzog has represented high-profile local clients like Marsh Supermarkets and the Indiana Pacers, and, on the plaintiff’s side, secured his career’s largest verdict—$27 million—for the family of a Martinsville man who died in a propane gas explosion. 

Herzog is “no-nonsense when it comes to doing what is right. [He has] great morality and respect for all people,” says Chip Poth, CEO of the Canton, Georgia-based Universal Alloy Corp., which Herzog is currently defending in a trade secret case. “His personality and wit are infectious. He does not take himself too seriously, although in the heat of battle I would not want any other on my side. And I would not want to go against him.”

 

Born and raised in Huntington, Herzog spent much of his childhood outdoors—riding his bicycle and swimming in pristine Lake Clare. His late father was a railroad engineer; his mother, a nurse.

Arguing came naturally. One day when he arrived home from junior high school, his dad ushered him into the car, drove toward the edge of town and parked next to the lake for a serious discussion. “It was strange for my father to be as serious as he was,” Herzog says. “He told me that the school had contacted my parents to say I was challenging them in class. My take on it was they wanted me simply to accept what they were saying, and I wanted to follow up and ask questions. I did it in a way I thought was polite, but I suppose from their perspective they thought it was impertinent.” 

Around the same time, Herzog made up his mind to become a lawyer, even though his only knowledge of the profession came from watching Perry Mason. “It just struck me as something that would be fulfilling and admirable and consistent with my nature of asking questions,” he says, adding that he chose trial work because “I thought that’s what lawyers do.”

Herzog earned his undergraduate degree in history at Wabash College, adding German as a second major since he’d tested well in the language after high school and because, he jokes, “Kafka is easier to follow in German.” Seven years after graduation, he traveled to Deutschland for the first time, exited the train, walked into a pharmacy and used his “very best German” to ask for headache medicine. “And the young woman looked at me and said, in English, ‘Yeah, we have aspirin.’ I was crushed.”

By the time he finished his studies at Vanderbilt University Law School in 1980, he knew he wanted to focus on business litigation for the chance to constantly learn about new businesses, technologies and laws. “There are few things more exhilarating than squaring off against a smart, civil adversary in a courtroom,” he says. “I have represented individuals, and I’ve represented multinational corporations and everything in between, and the subjects of the cases that I’ve handled over the years has varied wildly.”

Take, for example, the Universal Alloy trade secret suit, brought by Alcoa, that, at press time, was pending in federal court in Atlanta. Herzog and his team have filed an antitrust counterclaim. Alcoa claims Herzog’s client misappropriated the trade secrets used in the manufacture of the frames for airplane wings formed by an aluminum extruder, which he likens to a Play-Doh machine except the pieces are 60 feet to 100 feet long, then stretched over a mold to impart the gentle curve.

In the four years Herzog has been handling the case, Poth says he has demonstrated a “quick understanding of technical processes and claims, and the ability to keep it simple and bore down to real issues in the case. He is a very strong strategist.”

Herzog is quick to credit his larger-than-life mentors. After earning his J.D. in 1980, he began practicing at Baker & Daniels with senior attorneys he refers to as giants in the profession. “When Steve Terry or Ted Boehm gave me the opportunity to work on something, I didn’t care what it was. I was in.”

In those days, the firm didn’t advertise, and its lawyers carried no business cards. “Joseph Daniels, who was the son of one of the founders, was of the view that you needed only to tell people, ‘I’m at Baker & Daniels’ and they’ll know how to reach you,” says Herzog. 

Like many boomer attorneys, Herzog started as a generalist, handling everything from securities to construction to small claims on behalf of apartment owners looking to evict tenants. In his first bench trial in municipal court in 1982, he represented a health-food store that filed suit when a freight company allowed the store’s perishable goods to sit in a hot truck on a sweltering summer day. “We tried the case for two days and recovered $7,700. Still a thrill,” Herzog says. “It’d be hard to try a case for that much now, but I prepared it and tried it alone against another young lawyer who did a nice job, and it confirmed my judgment that litigation was what I wanted to do. It was exhilarating.”

As a young trial attorney, Herzog admits, “I was often impatient and overly aggressive. I now encourage younger colleagues to raise their ‘outrage threshold’—to listen, observe and think, but not to react unless and until they’re ready.”

He relishes being in the mentor seat. “The longer I practice, the more rewarding it is to work with people who are really smart—I confess, often smarter than I am. But they don’t realize it because I have the experience. … You see some of yourself in these people and you want to give them the opportunity and the mentoring that you had, that in my case equipped me to grow and develop and become the lawyer that I am today.”

Herzog’s earlier courtroom style has long since given way to a quieter confidence. In an effort to keep the “fly by the seat of your pants” moments at bay and persuade jurors and judges to trust his unembellished facts, he often overprepares. “It’s like the commencement address that I gave when I was in college,” he says. (See sidebar.) “It was stressful preparing for that but, when I stood at the podium, I looked out and I saw my father’s head bobbing up in the crowd, and I said to myself, ‘You’re going to do this once in your lifetime. Enjoy it.’”

Herzog’s forte, he says, is “owning” his clients’ problems. “This isn’t a job for me,” he says. “This is my profession. It’s what makes me what I am. So when a person comes to me with a problem, that becomes my problem. I tell clients to offload the problem and the stress of it onto me.”

In 2000, Conseco Inc. (now CNO Financial Group) lured him away from Faegre Baker Daniels and into an in-house position. Despite his 20-year track record of successful business litigation, Herzog says the three-year stint offered valuable insights into how companies operate. He also learned how to better explain to executives the expected costs and outcomes of each legal matter. “Finance is the language of business, so business lawyers and litigators need to be financially literate,” he says. “We need to understand the basics of financial accounting, quarterly reporting, all of the things that business people focus on as a matter of course.”

When the company filed for bankruptcy in 2002, Herzog’s former colleagues at Faegre asked him to come back. Accepting the invitation was easy, as was the transition.

Although Herzog is primarily known as a corporate defense attorney, he occasionally leaps to the plaintiff side, such as the $27 million case. Since 1990, he had represented the local gas utility in cases involving natural gas fires and explosions and had become acquainted with fire inspectors throughout central Indiana. So when a young man died in 2004 in a propane water heater explosion in rural Morgan County and four relatives were severely burned, an investigator at the scene suggested the family contact Herzog. The civil case turned out to be one of the most meaningful of his career. For nearly seven years, Herzog advocated for the family through pretrial proceedings and discovery disputes.

Longtime friend Irwin Levin of Cohen & Malad knew this was an unusual case for Herzog. “You don’t just have a client,” Levin told him. “You have a cause.”

At the end of the three-week liability portion of the trial, the jury held the propane supplier 65 percent responsible for the accident. (The grandfather who built the home and installed the propane piping was blamed for the rest.) A year and a half later, Herzog tried damages before a different group of jurors, several of whom cried as they heard the evidence. Herzog, too, found it difficult to keep his composure. When he put the father of the young man who died on the stand, “I couldn’t talk initially,” he says. “When our eyes met, I lost my voice and I smacked the podium a couple times, and I think it was awkward for everybody in the room, but I finally said, ‘This is your opportunity to tell the jury what kind of man your son was, what kind of husband, what kind of father.’”

In November 2011, the jury delivered the stunning verdict—nearly three times that of any before it in the history of Morgan County.

“It was an emotionally draining experience,” says Herzog. “I’ve told my many friends in the plaintiff’s bar that I have a newfound appreciation and respect for what they do and how hard it is.”

 

From a personal standpoint, nothing has been more difficult than the succession of health challenges starting in 2005 that temporarily waylaid Herzog. First came the heart attack, then the cancer diagnosis and treatment, followed by chemotherapy that caused him to go into cardiac arrest a second time. During all this, Herzog took only a brief sabbatical from his practice. “I wanted to demonstrate to myself and to my colleagues that I wasn’t damaged goods,” he says.

The ordeal only strengthened his lifelong sense of gratitude and optimism. More than ever, he enjoys traveling with his wife, Mia, playing golf and, most recently, oohing and aahing over his first granddaughter, Reese Elizabeth, born in November. “I wouldn’t trade what I’ve been through, because it has made me realize how immensely fortunate I am,” he says. “Everywhere I go, everything I do, everyone I meet now brings me joy.” 

A Message of Hope

He was only 8 years old, but David Herzog remembers the events surrounding the 1963 assassination of President John F. Kennedy in great detail, down to the hooves of the Quartermaster horse clomping down Pennsylvania Avenue at the funeral procession. He also recalls the subsequent impact of the Vietnam War and Watergate. “The world was, some thought, a gloomy place,” Herzog says. “But [in 1977] I was an optimistic 20-year-old who had just gotten a degree from a liberal arts college and I was convinced that we could do better.”

Starting his summa cum laude commencement speech in front of the graduating class at Wabash College, he said, “What I’m about to say is no doubt a product of my youth and naivete. Nevertheless, I feel compelled to say it because a number of things have happened in our lifetime that are discouraging and causing people to become cynical.”

Borrowing his theme from Black Panther leader and Soul on Ice author Eldridge Cleaver—“If you are not part of the solution, you must be part of the problem”— Herzog encouraged his peers to adopt a stance of optimism and self-reliance. 

Herzog still believes in the power of positive thinking. “Happiness is a choice,” he says. “And I choose to be happy.”

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