The Lawyerly Lineage of Thomas H. Tongue

The acclaimed Portland trial attorney is filling the oversized shoes of three namesakes

Published in 2010 Oregon Super Lawyers — November 2010

In 42 years of lawyering, Thomas H. Tongue has racked up more than his share of awards and accolades—all very gratifying. But if you want the truth, says Tongue, only one of those honors was the cause of major hoopla in his family.

That was the day in 1993 that he was informed of his acceptance into the American College of Trial Lawyers (ACTL). After spreading the welcome news through his own household, Tongue picked up the phone to tell his parents. It happened to be an Irish holiday.

“I was able to call my 100-percent-Irish mother and say, ‘Happy St. Paddy’s Day!’” Tongue recalls with a smile. As for his father, retired Oregon State Supreme Court Justice Thomas H. Tongue III, he responded with a gruff, “It’s about time!”

“My family expectations were high,” says Tongue, a partner with Dunn Carney Allen Higgins & Tongue.

The reason his family is so hard to impress? It has a long line of Oregon lawyers named Thomas Tongue—five, to be exact. The most recent is Tongue’s son, Thomas, who practices business law at Schwabe, Williamson & Wyatt and is on this year’s Oregon Rising Stars list. Confusing? Tongue says his mother handled all the Thomas Tongues in the family by calling her husband, son and grandson respectively, “Judge, Tom and Tommy.”

But the subject of this article is the first in his family to become a fellow of the ACTL, whose crème-de-la-crème membership comprises fewer than 1 percent of trial lawyers. Tongue, who practices civil litigation and health law, and represents law firms sued by clients, is in fact in line to become the president of the ACTL in October 2011.

The first Thomas Tongue to hang out a shingle in Oregon was elected to represent the state in Congress in 1897. He was given no middle name or initial at his birth in Lincolnshire, England, but upon entering Congress, he was informed that proper gentlemen had middle initials. For reasons known to none, he chose “H.” Attached to the wall in Tongue’s office is his great-grandfather’s Congressional brass nameplate, H and all.

The tradition of naming Tongue sons Thomas H. ended when Tongue’s mother gave him an actual middle name instead of an initial. It was her maiden name, Healy.

“So I didn’t have to become Thomas H. the Fourth,” says Tongue. “I was grateful for that.”

When his son came along, Tongue went so far as to give him a middle name that did not begin with an “H.” He is Thomas Michael Tongue. Thomas Michael named his second son Thomas Ryan, but everyone, including the boy’s doting grandfather, calls him Ryan.

Tongue is not the first partner at Dunn Carney to be a fellow of the ACTL. He’s not the first to be chosen as its president, either. William H. Morrison, who in 1930 founded the firm, was president of the organization from 1972 to 1973.

“To have a law firm that’s produced two presidents of the American College of Trial Lawyers any place is impossible—much less,” he says with a chuckle, “in the state of Oregon.”

In 1968, when Tongue was fresh out of law school and the Vietnam War was raging, he enlisted in an Army Reserve JAG unit and was able to do civilian work at the same time. He was interviewed by Morrison, who drew him into the firm and groomed him to be a trial lawyer. First, Morrison asked Tongue what he wanted to do as a lawyer.

“I said I wasn’t sure,” Tongue says. “He said, ‘Let’s see if you can become a trial lawyer, because you can always move from being a trial lawyer to a business lawyer, but you can’t move back.’ I don’t know if that has a lot of merit to it, but it was enough to sell a 24-year-old.”

Morrison took Tongue under his wing, having him try at least a case a month while sharing with the young lawyer his own methods. For example, Morrison was in the habit of taking only five minutes for depositions. All he cared about was sizing up plaintiffs to estimate their effect on the judge and jury.

Between Morrison and Tongue’s own father, who sat on the Oregon Supreme Court from 1969 to 1982, Tongue had stellar examples as he honed his style.

“There’s no doubt in my mind that his father had a tremendous influence on him,” says N. Robert Stoll of Stoll Berne, who was Tongue’s classmate at Portland’s Lincoln High School. “He had a great mentor in his father, who was one of the really great Supreme Court justices of all time and a great appellate lawyer before that. And I think that’s reflected in the high professional standards Tom’s set for himself. He’s always been a very honorable guy.”

Tongue was a junior lawyer at his firm in 1977 when the Oregon State Bar Board of Governors created the Professional Liability Fund as a self-funded insurance program for lawyers. He became one of the original lawyers on the fund’s malpractice defense panel.

“I assisted on those cases, did the research and the writing,” he says. “I argued some of the early cases. I got to try, argue motions, take those up on appeal, and so forth. So I basically learned the professional negligence law under some pretty good lawyers.”

Bruce Schafer, head of the fund’s claims department, has known Tongue for 24 years. “You can find people who have good technical skills,” he says, “but it’s a lot harder to find people who not only have good technical skills but also are wise and have great judgment and whose advice you can take to the bank. In terms of integrity, skill, wisdom and judgment, I don’t think you can do any better.”

Still, Tongue maintains a very low profile. Search The Oregonian archives or Google his name and you’re likely to learn more about his great-grandfather and his father than about him. Tongue prefers to stay in the background and says his clients, many of which are local law firms in occasionally embarrassing situations, appreciate that he keeps himself, and them, out of the headlines.

“I’ve represented about every firm in town,” says Tongue, “but I don’t talk to a lot of reporters. Law firms don’t necessarily like to have their names identified with clients who turned out to be not so good. They value their good name and reputation very much and they don’t want to have it taken and thrashed about.”

Tongue won’t speak about cases that are pending. But a few he mentions involved headline-grabbing names of several years back, such as Craig Berkman and the late Jeff Grayson. Some law firms that represented these men hired Tongue, who helped resolve all potential claims from investors without any suits being filed against the law firms. Grayson ran Capital Consultants, an investment firm that was seized in 2000 by the federal government in what the Securities and Exchange Commission called at the time “the biggest fraud by an investment manager in U.S. history.”

Berkman, a venture capitalist, former state Republican Party chairman and onetime gubernatorial candidate, fell from grace after his misappropriation of millions of investors’ dollars came to light in 2004.

Representing the investors in the case against Berkman, which was resolved after five years with a $58 million award to the investors, was Stephen English of Bullivant Houser Bailey. English first met Tongue in 1972, when he was clerking in the firm that had just named Tongue partner. He has considered his sometime opponent a friend ever since.

“Even when you’re opposing him,” says English, “you can have an enjoyable dinner out and genuinely feel as though the two of you have set aside whatever professional adversarial situation you had and are just two friends enjoying each other’s company.”

William A. Barton, of Barton & Strever, has come up against Tongue on a couple of occasions, most notably in the lengthy Goddard v. Farmers Insurance case. The case, stemming from a 1987 fatal car accident, dragged on through 21 years and seven appeals with a big win in 2008 for Barton. But that gave the Newport lawyer plenty of time to watch Tongue in action. 

“He uses the corners well,” says Barton. “He knows when to be in the corner and cover up, when to come out and trade blows, he knows when to clinch with the judge and he knows when to be in front of a jury. His instincts are simply superior. He’s a wonderful opponent.”

Tongue notes that he tried another insurance defense case against Barton in Eugene: “[Barton] didn’t win that case, but he more than made up for it with the Farmers case.”

Tongue’s friends extend well beyond the legal arena. One longstanding association is with the YMCA of Columbia-Willamette, which gave him his first job, as a counselor at its Camp Collins. Later, he was a counselor at the Y camp at Spirit Lake, obliterated in 1980 by the eruption of Mount St. Helens. As a young lawyer, he joined the Y’s board and did occasional pro bono work for the organization.

After he left the board, the charity property tax exemption of two Y facilities was challenged in 1985 when private health clubs in the area took exception to the swanky Metro Y (now Allstar Fitness) next to Duniway Park and the RiverPlace Y (now RiverPlace Athletic Club). The Y was ordered to pay $1 million in back taxes for the two facilities. This time the Y hired Tongue as a different kind of counselor. It was a long battle, but by 1992 Tongue was able to get the Metro Y’s tax-exempt status restored. The RiverPlace Y had changed hands in 1986.

“I think very highly of Tom,” says Bob Hall, president and CEO of the YMCA of Columbia-Willamette. “He has a personal and emotional stake in what we do and our mission. It’s a whole lot more than just business.”

But when it’s business that’s at stake, Tongue considers himself a lawyer’s lawyer. U.S. District Court Judge Garr “Mike” King agrees: “If I needed a lawyer, I’d hire Tom Tongue. Tom is a wonderful person, and he’s given a great deal to the bar.”

David Markowitz, with Markowitz, Herbold, Glade & Mehlhaf, says, “Simply stated, he’s my favorite lawyer in Oregon.

“He’s been a mediator on cases I’ve been involved in, he’s been an opponent, we’ve co-counseled cases, and when our law firm has needed [an outside] lawyer we’ve hired him. We’ve had every conceivable professional relationship with him.”

Tongue may not be the first in his family to bear his name, but he knows exactly who he is.

“I just kind of do what I do,” says Tongue. “I don’t try to be somebody I’m not.”

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