The Expert

Greg Joseph is the corporate litigator you want answering that 3 a.m. (or 4 a.m.) phone call

Published in 2009 New York Metro Super Lawyers — September 2009

Last October, at 4 o’clock on a Friday morning, a phone call from Michael S. Helfer, general counsel of Citigroup, awoke Gregory Joseph. A few days earlier Citigroup had made a deal to acquire troubled Wachovia bank, and Helfer had subsequently learned that Wachovia wanted to accept an offer from Wells Fargo instead. He needed Joseph to go to court to enforce the original deal.

“I have to be on a plane to Moscow at 4 o’clock this afternoon,” a groggy Joseph warned.

Didn’t matter. Helfer wanted Joseph if only for a few hours.

Joseph is the consummate corporate and commercial litigator. Other trial lawyers may get more headlines but few have a better reputation among other top-echelon attorneys. Joseph writes books and articles that other lawyers read for tips on how to practice, and he represents lawyers when they get in trouble. When a settlement falls apart in a big case, he’s brought in to handle the trial. He’s the lawyer other lawyers call in the middle of the night.

His cases range from representing General Electric in insurance claims related to the collapse of the World Trade Center to helping a prominent Houston law firm avoid racketeering allegations after the Enron scandal. His articles have been quoted all the way up to the U.S. Supreme Court. One federal court decision, written by Judge Milton Shadur in Gregory v. Oliver in 2002, noted, “Greg is one of this country’s leading litigators.”

Jerold S. Solovy, the venerable chairman emeritus of Chicago-based Jenner & Block, agrees: “Greg Joseph is one of the most accomplished trial lawyers in the country. … He stands as a role model both for me and the profession.”

 

Joseph, 58, grew up in Minneapolis. His father was a wholesale liquor salesman and his mother helped run an auto auction company. He went to a Catholic high school, where he served on the student council and wrote for the school newspaper. “I always wanted to be a lawyer,” Joseph says. “I liked the debate, the intellectual combat.” He didn’t really know anything about lawyers except what he saw on television—Perry Mason, Judd for the Defense, The Defenders—and disagrees with those who deride the old lawyer shows as unrealistic. “It looked like being a lawyer was a lot of fun,” he says. “And it is a lot of fun. So it was actually quite realistic.”

He sailed through the University of Minnesota and its law school in six years. After graduating in 1975, he joined a small Minneapolis personal injury firm. He was 24 but looked 18. He tried 30 cases in his first three years, and remembers the first vividly. His client was a woman injured at a dance when one man pushed another man into her. She showed up at the courthouse in a mink coat, and Joseph had to persuade her not to wear it into the courtroom. Friends told him his voice quavered, but he made his points and he won. The verdicts in those early cases were often small; one garnered $3,000 for a farmer whose hand was injured by a grain auger.

Joseph’s fresh-faced enthusiasm led a number of people to take him under their wing. “I got great tips from court reporters and from law clerks,” Joseph says. “Court reporters would tell me, you know, ‘You gotta ask simpler questions.’”

When Joseph won a million-dollar personal injury verdict against the state of Minnesota in 1978—when seven-figure verdicts were rare—he was suddenly a rising star of the plaintiffs’ bar. He and his fiancée, Barbara, today his wife of 30-plus years, had talked about trying big-city life even before the million-dollar verdict; so, after contacting a headhunting agency, he jumped, in early 1979, to Fried, Frank, Harris, Shriver & Jacobson in New York. He walked in the door with more trial experience than all but one of the senior partners—Leon Silverman, the president of the American College of Trial Lawyers, who became his mentor.

It was the dawn of the era of the corporate takeover and Joseph was in the thick of it. “A takeover would involve trials and appeals within a month,” he says, obviously relishing the memory of the frantic pace—as offers came and deals closed with what seems like lightning speed compared with many of today’s cumbersome mergers and acquisitions. He often appeared before an administrative agency, a federal district court and a federal circuit court within a month. By 1982 he made partner and his reputation was growing. His headline-grabbing cases included representing Philip Morris in a takeover bid of Kraft Foods, and Mobil in its ultimately failed attempt to take over Marathon. In the 1990s, as the stock market skyrocketed, Joseph became more involved in securities class actions.

His vast trial experience, his reputation among other top attorneys, and his many contributions to legal theory and practice through his writing have helped Joseph become a court-acknowledged expert in certain legal areas—notably securities and RICO (Racketeer Influenced and Corrupt Organizations Act)—but he embraces any sort of complex commercial litigation. He relies on co-counsel in the early stages of many cases, such as antitrust, bankruptcy and tax, but there’s no doubt who’s in charge at trial. “I think the law is fungible,” he says. “My expertise is in rules of evidence, rules of procedure, and actual trials and appeals. The substance of the law is relatively irrelevant.”

By 2000, Joseph was head of the litigation department at Fried Frank but was thinking about leaving. “I love the firm, I love the people there, the great practice,” he says. “I never would have left the firm except for conflicts.”

It wasn’t personal, it was business. The conflicts grew out of the firm’s interest in keeping its wide-ranging list of major clients happy. “A certain member of one industry wouldn’t want you suing another member of that industry,” Joseph says. “Eight out of 10 calls you’d have to say ‘No’ out of the box.” The final straw came when he accepted a case for Seagate, the technology company, against a major accounting firm. Fried Frank did not represent the accounting firm, but it did represent other accounting firms, and it didn’t want to be seen as unfriendly to accounting firms. Joseph’s partners asked him to drop the case but he didn’t want to abandon the client. He left Fried Frank in March 2001. On a recent morning in his offices high above Lexington Avenue, a mildly pained expression creeps into Joseph’s still youthful face when he talks about it.

More than eight years later, people at Fried Frank still speak highly of Joseph. “He’s a fabulous lawyer, and we have a great relationship with him,” says Jonathan Mechanic, a Fried Frank partner and chairman of the firm’s real estate department. “He would not have left except for the conflicts. It killed him that he could not take all those good cases.” These days when Fried Frank turns down cases because of conflicts, the firm often refers those cases to Gregory P. Joseph Law Offices.

Launching his firm, Joseph says, was “a lot like diving off a cliff and not being sure whether there’s water there.” But all his Fried Frank clients came with him, and so did several Fried Frank colleagues. The firm today has six partners, including Joseph, and nine other lawyers. “I would hope that what we’re able to do,” Joseph says about his firm, “is take extremely complicated instruments and fact-situations and understand them extremely quickly and be able to give a fair appraisal of them.”

 

When Citigroup called him at 4 a.m. last October, Joseph woke a couple of his partners. They raced to the office, drafted a complaint, and filed it with the New York State Supreme Court as Joseph was en route to Moscow. Over the next three days, Joseph got five hours of sleep. He spent several hours testifying before a Russian court on behalf of another New York law firm, Boies, Schiller & Flexner, which had called him in as a RICO expert in a $20 billion lawsuit. Otherwise he spent virtually every waking moment directing legal maneuvers in the Wachovia case, and, at times, arguing the case over the phone amid a flurry of claims and counterclaims before various state and federal courts and government regulators. Citigroup ultimately decided to allow the Wachovia sale to Wells Fargo, but months later Joseph still smiles at the thought of the frenetic work over that Friday-to-Monday. “Yeah, it was a very long weekend,” he says. “Not a typical weekend. But it was a great weekend, one of my favorite weekends.”

Citigroup’s Helfer says there is a reason Joseph is the guy he wants answering that 4 a.m. phone call. “I make sure that he is always representing Citi in some matter so that I never have to worry about him being on the other side,” Helfer says. “Greg is a rare combination of a lawyer who is perfectly at home, and terrific, in a courtroom in front of a jury, and perfectly at home, and terrific, in a conference room in front of a board of directors.”

Jonathan D. Schiller of Boies, Schiller & Flexner, who hired Joseph to come to Russia as his RICO expert, agrees: “Greg combines scholarship and trial skills at the consummate level.”

Joseph loves jury research. “I want to hear what people are thinking,” he says. Too often, he adds, lawyers talk down to jurors. “You start off by saying something like, ‘It’s a difficult case but I can make it easy for you.’ So condescending.” Instead, he says, lawyers should tell jurors: “Of course it’s complicated. We wouldn’t be involved if this thing weren’t complicated. But it’s learnable. I learned it. You can learn it. It’s difficult, but it’s something that we have to understand in order to be able to deal with the case.” He’s got nothing but respect for juries. When nonlawyers offer their reactions to legal arguments, he often asks himself, “Why didn’t I think of that?”

To organize and simplify his cases, Joseph identifies key evidentiary issues and prepares “brieflets” for each, no more than two pages, that clearly explain the issue. If needed mid-trial, he can grab a brieflet and hand it to the judge. Joseph also looks for ways to illustrate his case. “People understand graphics immediately in a way that they don’t hear words,” he says. Joseph cites a case that came to him in early January. Both the Museum of Modern Art and the Guggenheim were being sued by a German-Jewish family to recover two of Picasso’s most famous early works—“Boy Leading a Horse” on display at MoMA, and “Le Moulin de la Galette” at the Guggenheim. The family claimed that the sale of the two works to an art dealer in 1934 had been under duress from the Nazi government. The New York museums later acquired the paintings, worth hundreds of millions, from the art dealer.

The museums lost a summary judgment motion in January, and Joseph was called in only four weeks before trial. Joseph and several lawyers in his firm spent much of the month creating 40 computerized bar charts and graphs. “I’ll show you,” he says, flipping open his laptop. He points at an elaborate family tree, with names redacted, that pops up on the screen. “These were the plaintiffs,” Joseph says. “This was the person that was allegedly under duress. These are generations that have made no complaints.”

The case settled just before trial. Joseph was disappointed. “Terribly,” he says. “I at least wanted to be able to do the opening and a few crosses.”

 

Beyond the courtroom, Joseph has given up his teaching duties at the Trial Advocacy Institute at the University of Virginia—“There’s just no time,” he says—but continues to be involved with many legal education programs. He will serve as president of the American College of Trial Lawyers starting in autumn 2011. Other pro bono work in recent years has been focused on the future of the federal courts. “I don’t think anybody doubts that you get fair results in federal court,” he says. “The only question is whether or not people can afford it, or whether we marginalize them by pricing it so high that people are trying to avoid it.”

Joseph has written or edited eight books that have become standard references, variously, for RICO, litigation, evidence and civil procedure. His résumé, which runs 13 pages, lists 123 law journal articles and dozens of lectures, speeches and presentations he’s delivered from Washington, D.C., to Shanghai, as well as court opinions that cite his writing. Joseph says the writing is a way of tying together all his research—he spends 45 minutes every morning reading recent decisions—and maintaining his expertise. “It’s a way of developing credibility,” he says. “You have to make yourself into an expert in something … you just have to devote the time and attention to it.” In the last nine years, his writings have been cited in more than 150 federal district, appellate court and state supreme court decisions.

“Greg is one of the most exceptional people I know—a first-rate lawyer as well as a prolific and balanced authority and reporter on several areas of the law, e.g., federal civil procedure, evidence and sanctions,” says Fern Smith, the influential San Francisco-based retired federal judge who was formerly director of the Federal Judicial Center. “I’ve worked with him on several committees and panels over the last 15 years and always learn something from him.”

Joseph has no hobbies; he says his work is his hobby. Several times a week he does Pilates or goes for a run along the East River promenade near his apartment, and he and Barbara spend weekends at their country house in Connecticut. After a career in human resources in New York, Barbara became an educator, teaching developmentally disabled children for several years. Then she became a yoga instructor, teaching in the NYU theater program and running her own studio for a decade. She is retired now, serving as a guardian ad litem in Connecticut and New York for children who have been abused or neglected. “She’s much more interesting than I am,” Joseph says.

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