Defending Big Oil

Environmental litigator Rick Faulk sticks to the facts

Published in 2010 Texas Super Lawyers — October 2010

Environmental defense lawyers are never the heroes of movies. At best they’re portrayed as unsympathetic, at worst villainous, as they spar against heroic plaintiff’s lawyers played by the likes of Julia Roberts (Erin Brockovich) or John Travolta (A Civil Action).

Which means the courtly and warm Richard Faulk of Houston’s Gardere Wynne Sewell, who defends big oil, gas and chemical corporations in toxic tort cases and environmental litigation, is not out of central casting. 

“I don’t like win-at-all-cost attitudes,” he says. “The most difficult cases for me to try are those in which the plaintiffs have experienced major difficulties in their lives. These are good and sympathetic people. Sometimes they have endured terrible things. I’m not insensitive to their plight, but it is my duty to represent my client. It’s always my goal in those cases to find what is right for all concerned under the law. When I ground my client’s position on solid legal principles, I can go home at night and tell my family I’ve done the right thing.”

As the chair of the firm’s 140-attorney litigation department and environmental law practice, he’s racked up his share of defense wins, sometimes all the way to the U.S. Supreme Court.

“Rick is a valued and trusted counselor,” says Donald Evans, deputy general counsel for the American Chemistry Council. “On a number of occasions we turned to him to get his assessment of the liability implications of a potential new association activity, including how to mitigate any liability concerns. He is well-positioned to provide such advice, given his broad knowledge of the chemical and petrochemical industry, coupled with his extensive experience in dealing with tort matters.”

Faulk has taken it upon himself to understand climate change. He certainly understands its implications for his clients.

“Climate change affects every aspect of the law,” Faulk says, “from international business operations, to corporate transactions, securities disclosures, taxes and even what type of due diligence is needed before closing deals. The climate change controversy has generated extraordinary public-nuisance litigation, including three huge claims filed in three separate federal circuits. One case even alleges that industry members are responsible for exacerbating Hurricane Katrina by emitting greenhouse gases that cause global warming.”

To prepare his clients for climate issues, Faulk established a task force of 12 attorneys at his firm to develop expertise and monitor legislation and regulations. One of the team’s initial projects was, “Stormy Weather Ahead: The Legal Environment of Global Climate Change,” one of the first legal papers on this topic.

Faulk regularly publishes on the legal aspects of climate change and has twice been named a winner in the Burton Awards, a prestigious national awards program that recognizes legal writing. He went to work in December 2009 as a credentialed journalist at the United Nations Climate Change Conference in Copenhagen, during which Faulk published daily columns. Of his experience, Faulk says, “Journalists were the only ones allowed to attend and ask questions at the many important press conferences held by U.N. officials, world leaders and scientists. So this was a rare chance for me to get up close and personal with the decision makers, and to learn and report developments in real time, not through someone else’s belated analysis.”

Make no mistake, even though he handles a broad portfolio of litigation for the firm, Faulk’s defense work is his calling card. In 2004, Faulk presented briefs and oral arguments before the U.S. Supreme Court as lead plaintiff’s counsel in a contamination case known as Cooper Industries, Inc. v. Aviall Services, Inc. Faulk recalls the experience as, “the pinnacle of a lawyer’s career and one of the greatest challenges any advocate can face. Preparation is vitally important. You can’t give a canned argument; you must have a dialogue, a colloquy with the court, based on responses to their questions,” he says.

He and his team prepped for their arguments in moot court settings, including one at Georgetown University Law Center, in a courtroom designed to be identical to the actual Supreme Court. “Law school professors and former assistant solicitor generals serve as the Supreme Court, and they pepper you with questions in the same manner and style. You learn right away to answer with a ‘yes’ or a ‘no,’ and never to explain first, because you’ll be interrupted and never complete your answer,” he says.

When he stood before the real court, Faulk says he found the justices extremely well prepared and he was impressed by their energy and intellect. “Thankfully, our moot court practice at Georgetown paid off. I was relieved that not one question asked by the Supreme Court had not been covered by at least one of the moot court panels. But then, the moot courts usually lasted over 90 minutes, while argument before the Supreme Court lasted just a half-hour,” Faulk says. Although his team lost on one issue 7-2, they won the right to proceed on another issue and later won a liability finding in their case after the Supreme Court remanded it to trial.

Joseph Speelman, former head of litigation and commercial law at Lyondell Chemical Co., calls Faulk his “First Knight,” from the days when Faulk handled and counseled Lyondell regarding toxic tort cases in Texas and Louisiana. “Rick was our very first ‘Lyondell Knight,’” Speelman says. 

“The ‘Knights’ were a tradition I started at Lyondell. To be named a ‘Lyondell Knight,’ a lawyer had to win the case, not just do well in it. Rick was the first to win his case and, in fact, it went all the way to the Supreme Court. Since then, the ‘Lyondell Knighthood’ has grown quite a bit, but it all started with Rick Faulk. He’s a remarkable trial lawyer.”

 Adds Russell Porter, who retired in 2006 as vice president and deputy general counsel for Alcoa Inc.: “Rick has the gregarious nature of a plaintiff’s lawyer. He is a people person. In my experience, a lot of defense litigators are not that way, but Rick seems to enjoy what he is doing more than most.”

The only child of restaurateurs in Orange, Texas, Faulk describes his parents’ Tenth Street Grill as a wonderful place to grow up. “It was a gathering spot for doctors, lawyers, contractors, carpenters, plumbers, roofers, bankers and laborers, who debated issues over coffee, and not always quietly,” Faulk says. He did a little bit of everything at the place, from waiting tables to mopping the floors.

As a child, he was musically inclined and sang in his church choir from age 6. His passion for music led him to pursue a composition degree in the 1970s from the University of North Texas (UNT), where he had to demonstrate proficiency in each orchestral instrument.

“Musical composition teaches you to create and develop a theme, which is central to almost every profession, whether you’re in law, sales or another enterprise,” he says. “Composing requires strategic thinking, planning and ultimately execution through performance. The tools may be different, but the mental exercise is the same.”

In 2004, Faulk and his wife Candace endowed a scholarship fund to provide financial assistance for student composers at UNT, where he now serves as chair of the music school’s advisory board. In addition to tuition scholarships, the endowment provides for an annual concert.

“Rick called me out of the blue, told me about his history and his love of music, and said he would like to give something back,” says James Scott, dean of UNT’s College of Music. “Rick has taken a real interest in some of the Faulk Scholars, as we call them, and has followed their careers. He is a model of what philanthropy can and should be.”

Faulk’s motives are clear. “Music must be heard, not just written, and this is a wonderful way for new composers to hear their works performed and receive audience feedback. We need to encourage talented people to think artistically and elegantly. Even if they later pursue another profession, their avocation will be enhanced, elevated and improved by their sensitivity and discipline,” he says.

Faulk still composes music on occasion. His friend Vernon Hartman of the New York Metropolitan Opera sang the 2006 premiere of Faulk’s work The Passion According to King David during Good Friday services at First Presbyterian Church in Houston. Faulk still sings in his church choir.

In addition to musical talent, Faulk is also a bit of a poet, although he dismisses his efforts as ditties written for his wife, friends or colleagues. “But my poems are important to me and I hope they are important to those for whom I write,” he says.

 

Faulk has found a home at Gardere, where he has practiced since 1996. “Gardere encourages its members to be what I call ‘complete lawyers.’ Success in one’s profession imposes responsibility to support and serve one’s community. You cannot be ‘complete’ if you’re not committed to causes beyond your own self-interest,” he says.

In addition to his UNT philanthropic efforts, Faulk and his wife have provided scholarships in choral conducting at Houston Baptist University. He also serves on the board of the Houston office of the American Diabetes Association. Outside of Houston, Faulk teaches judicial education programs and serves on the board of overseers of the Searle Center on Law, Regulation, and Economic Growth at Northwestern University School of Law in Chicago.

Asked how he finds the time for his many and varied pursuits, Faulk gives an unexpected response. “You’d be surprised how much thinking gets done working with cows,” he says. He and his wife own a ranch, and it is there that he finds clarity. “Getting back to country life on a regular basis helps you focus on things that really matter. Everything else then falls into place.”

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