Spoiling for a Good Fight

Dennis Kennedy doesn’t back down from a challenge, whether defending Big Tobacco or taking on Toyota

Published in 2010 Mountain States Super Lawyers — July 2010

In 2006, Dennis Kennedy took a gamble, leaving Nevada’s largest private law firm after 31 years. And the commercial litigator wasn’t sure what would come next.

“After you leave a large firm, you have a couple days before you actually start practicing at your new firm where you have no clients and you say to yourself, ‘God, I wonder if I’m ever going to have another client!’” Kennedy says of moving from Lionel Sawyer & Collins to what was then a five-lawyer firm founded by former colleague John Bailey.

Luckily, it was a fleeting moment. “That lasted about 15 minutes for me,” says Kennedy. “But, you know, there is that time where you just say, ‘Gosh, I hope I made the right decision, I hope everything works.’ And it turns out that the decision was a very good one.”

He’d made a similar leap in 1975, when he launched his law career. After graduating from the University of Washington’s law school, he left his hometown of Seattle for Las Vegas. That worked out, too. He’s been there ever since.

“The great thing about Las Vegas was that there was no well-established social and professional structure that enabled certain people to succeed in the legal field and inhibited certain other people from succeeding. Las Vegas was, especially then in 1975, a true meritocracy,” Kennedy says. “It’s still like that. It was founded and run by gamblers and by people who were interested in winning and they didn’t really care what your background was. If you were a lawyer and you were good and you could help them win, that’s what mattered.”

Kennedy started at Lionel Sawyer & Collins, where he spent more than three decades defending hotel, pharmaceutical, gaming and tobacco companies, and health care providers. When he changed firms, many of those clients, including Philip Morris, R.J. Reynolds Tobacco Co., and Walters Group, followed.

Kennedy, now 59, decided at a young age he would become a lawyer, thinking he’d enjoy the intellectual fight. “It turns out that I was right,” Kennedy says. “If you enjoy a good fight, you’ll like litigation.”

Throughout his career, he’s gotten into plenty of tough fights. In health care suits, Kennedy often deals with patients and families after something has gone horribly wrong. In one case, Kennedy argued to reverse a $5 million jury verdict for the care of a brain-damaged child because of errors made in the trial. “These are hard things to do because in your heart you can’t help but sympathize for somebody that something bad has happened to,” Kennedy says, “but, of course, you’ve got a duty to your client and you’ve got a duty to the legal system to stand there and say, despite all of that, things weren’t done as they should’ve been done.” (At press time, the case had been argued and was under submission.)

In 2000, Kennedy successfully argued for 18 tobacco companies, including Brown & Williamson and the Tobacco Institute, against casino employees who sought health checkups paid for by tobacco companies because of their exposure to secondhand smoke on the job. “Nevada is a very unique state because risk and reward is something that [Las Vegans] see everyday as a principal part of our economy here, which is gaming. It is very difficult in Nevada to tell a judge or a jury, as people do in tobacco cases, ‘I didn’t know that this might be harmful to me,’” Kennedy says. “You might be able to make that argument some place. You can’t make it here. … It’s a pretty discerning bunch of people who live here. And they’re not prone to accepting excuses like that.”

That sentiment was critical in a suit that originated in 1994, which claimed video poker machines were deceptive and misrepresented the odds of winning to make players think they had a better chance of a payout. “The court—both the 9th Circuit and the local court here—cast a pretty skeptical eye upon arguments of plaintiffs who said, ‘I really thought I would win when gambling. And I’m shocked to find out that I might lose,’” says Kennedy, who was the co-lead attorney representing the gaming companies and successfully argued both cases. In 2002, the 9th U.S. Circuit Court of Appeals affirmed that the case couldn’t be certified as a class action; three years later, a federal court judge dismissed the original lawsuit.

Being able to analyze and communicate—skills Kennedy learned as an undergrad studying economics and English lit—are necessary for success. “As any trial lawyer will tell you, a lot of times that’s your biggest challenge: you have to make sure that people understand what happened or how things work before they can understand whether you were right or wrong. And many times the right or wrong is the easy decision,” Kennedy says. “If the jury looks to you to explain [what happened] to them and you can’t, many times you will lose for that reason.”

At Bailey Kennedy, where he’s a name partner, Kennedy’s made time for a new challenge: taking on cases for the other side, something that just wasn’t done at his previous law firm. After Toyota’s recalls, Kennedy became the lead Nevada counsel as part of a nationwide group of attorneys who are filing suits for owners who claim their vehicles have lost value. At press time, some estimated these cases could cost Toyota more than $3 billion.

“It doesn’t matter if you take your car in and get it fixed and comply with the recall—the value of your car’s dropped $500 or $1,000 and it’s never coming back. And it’s not anything you did,” says Kennedy. “They haven’t been sending out checks, so we filed a class action.

“That’s kind of fun stuff, and in my old life I’d be defending Toyota. Saying we don’t owe anybody anything. But it’s a lot more fun to be on the other side.”

Regardless of which side he’s on, the payoff is the same. “No question, the most rewarding part is helping people,” Kennedy says. “The people that we deal with always have troubles and problems—often big trouble and big problems—and if you can get those problems resolved and get the people back to where they should be—usually back doing business or back to a normal life—that is far and away the greatest reward there is in this profession. Nothing else comes close.”

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