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Eliot Jubelirer seemed worried. The veteran lawyer’s arms were folded across his chest, his head tipped forward and brow creased as he answered questions about the trial embroiling his client, Brobeck, Phleger & Harrison. It was an April morning and he was standing outside a Malibu courtroom during a break in testimony. He emphasized how difficult it was for his team to prepare for each day’s lineup of witnesses. “We have dozens of boxes of depositions and hundreds of exhibits to go through,” Jubelirer said. “We have to divide the work up. It’s like a battlefield triage.” Jubelirer’s anxiety was understandable. After all, he had agreed to jump in and defend Brobeck in a multimillion-dollar suit just three weeks before trial. But colleagues and clients say such fretting over a case is typical for Jubelirer. “Eliot always thinks that the worst is just about to happen, which means his clients don’t have to worry,” said former Brobeck partner Stephen Snyder. In Brobeck’s case, Jubelirer needn’t have worried. Despite the time handicap, he and his team pulled Brobeck out of a possible financial quagmire. While a jury found that partner Debra Pole’s defection to Brobeck a decade ago involved some misconduct by both Pole and Brobeck, it awarded the partners at Pole’s former firm only $153,000 in damages, a fraction of the $30 million they requested. The adroit save is typical of Jubelirer’s 30-lawyer litigation boutique, Morgenstein & Jubelirer, colleagues and clients say. While the firm doesn’t have the marquee name of larger litigation firms, it has earned a reputation for having top-notch trial lawyers who deliver good results. The firm also stands out for its lean staffing and competitive billing rates. “We work with a lot of different law firms around the country,” said Raymond Smerge, chief legal officer of Centex Corp., a home-building and mortgage-banking company based in Dallas. “When we are confronted with a particularly challenging or difficult litigation, when the stakes are high, the name that goes to the top of the list is Morgenstein & Jubelirer.” DEFENDING BROBECK While Morgenstein & Jubelirer is used to fast-paced litigation, the Brobeck case stands out in the firm’s scrapbook of trials. Jubelirer and his co-counsel in the case, partners Jean Bertrand and Wendi Berkowitz, spoke about the trial last week from their offices at Spear Street Tower, just one floor below Brobeck’s old space. Jubelirer and partner Marvin Morgenstein founded the firm in 1982 when they split from what was then Steinhart Morgenstein & Falconer with another partner and five associates. Morgenstein, who retired 10 years ago and now lives in Bozeman, Mont., was a well-known antitrust lawyer. Although the firm is perhaps best known for asbestos litigation — 40 percent of its business is products liability defense — Morgenstein & Jubelirer handles everything from employment and labor law to construction, real estate and insurance coverage. Its roster of clients includes glass container manufacturer Owens-Illinois Inc., as well as Emerson Electric Co., Newell Rubbermaid Inc., PG&E Corp. and Home Depot Inc. Among its most notable cases, the firm successfully represented FedEx Corp. in its suit against the Public Utilities Commission over the PUC’s attempt to regulate FedEx’s intrastate trucking. Jubelirer said the 1992 ruling helped spur Congress to deregulate all intrastate trucking, since FedEx otherwise would have had a competitive advantage. Morgenstein & Jubelirer also got a favorable settlement for Eastman Kodak Co. in a breach of contract and patent-licensing suit against Lockheed Martin Corp. two years ago. And currently, the firm has two employment cases — for the University of California and L’Oreal SA — pending before the California Supreme Court. “Eliot has a remarkable ability to do lots of different cases and jump in at the last minute,” said former partner James McGinnis who left the firm last year to join Sheppard, Mullin, Richter & Hampton. “All of his partners are very talented.” “They’re brilliant litigators and cut right to the heart of something,” said Anne Bingaman, who was head of the U.S. Justice Department’s antitrust division during the Clinton administration. She hired Morgenstein & Jubelirer partner Rocky Unruh to work as a staff attorney at the agency and subsequently hired Unruh and Jubelirer when she worked first at long distance company LCI and then at Valor Telecommunications. She said the two helped come up with a strategy to get the Bell companies to comply with the Telecommunications Act. While Jubelirer said his firm could go head-to-head with any other firm out there, he acknowledged that its smaller size puts it at a disadvantage in getting big cases. General counsel at major corporations tend to gravitate to firms with known names, he said. As a result, Morganstein & Jubelirer would consider a merger if the right suitor came along. “It would be great if the firm were bigger,” he said. “We have a pretty good cast of brand-name companies that use us, and we’d like to expand that.” But Morgenstein & Jubelirer doesn’t want to give up its collegial culture — which former partners and clients say is a major attribute of the firm. “They are good lawyers, honorable, very talented, who do a good job for their clients, and they’re nice,” said Steven Kazan, of Oakland’s Kazan, McClain, Edises, Abrams, Fernandez, Lyons & Farrise, who has squared off against Morgenstein & Jubelirer in hundreds of asbestos cases. “The firm has a reputation as being really nice people,” said former partner Larry Lowe, who is in-house counsel at Apple Computer Inc. “Eliot has sort of a philosophical and stylistic influence over the firm, being very gentlemanly, very well prepared and professional.” The firm operates by consensus. Bertrand, who was co-counsel on the Brobeck trial, said she could only remember one partnership vote in 20 years, which was over a piece of art Jubelirer wanted. “It was the ugliest thing I’d ever seen,” she jokingly recalled. BARGAIN BILLING The firm is also known for its bare-bones litigation. Partners staff cases with a minimum of attorneys and their billing rates, which range from $170 to $365 per hour, are about half of what top litigators at Bay Area firms charge. Keker & Van Nest partner Robert Van Nest, for example, bills as much as $650 per hour, according to documents the firm filed with the U.S. Bankruptcy Court for the Northern District of California. Partners haven’t always agreed on the economical billing rates, however. “We would have constant fights” over the issue, said Lowe, who left the firm in 1995. “There were those of us who wanted to raise the rates and others who wanted to keep them mid-level. I felt we were a real bargain. That’s a reason why I had no hesitation in hiring them” to do work for Apple. Jubelirer acknowledged that there has been tension over the issue but said he believed that it was true at other firms as well. “We try to keep our rates below the so-called national law firms,” he said. “We think we can do it in part because, being smaller, we have lower overhead and we think it’s fair for our clients. And sometimes we get clients because of it.” Morgenstein & Jubelirer is also flexible in its billing structure, offering modified contingency fees and flat fees in some cases. In one matter, the firm worked out a reverse contingency fee, agreeing to take one-third of what the client would save if it won its appeal to the California Supreme Court. The firm got the court to take up the case and rule on behalf of its client. Brobeck also benefited from the firm’s pliant billing system. When Morgenstein & Jubelirer agreed to take up Brobeck’s defense in the partner defection dispute, Snyder said the firm had no assurance that it would ever be paid. The defunct Brobeck owed its previous counsel Keker & Van Nest $300,000, and all its incoming revenue was going to pay off its bank debt. Snyder said Brobeck did end up paying Morgenstein & Jubelirer for its services but declined to reveal the source of the funding. “We felt like they were our friends and they needed us,” Jubelirer said. “We couldn’t say no to them.” Brobeck partners had worked closely with Morgenstein & Jubelierer for many years and referred the litigation shop a lot of business. In the 1990s both firms represented a group of asbestos manufacturers, trying about 20 cases to verdict over a three-year period. And when Unruh took a leave of absence to join the Justice Department, he recruited former Brobeck partner James Miller to work with him. The two worked on the antitrust investigation of Microsoft Corp. and a price-fixing complaint against two-dozen market-makers that resulted in a consent decree. Brobeck partner George Cummings also later joined the team. Snyder, a former Brobeck chairman and now head of the firm’s liquidation committee, has been a longtime fan of Morgenstein & Jubelirer. “Each of them is a really good trial lawyer and pretty fearless,” Snyder said. “Their standards are high and rates modest, which has made them competitive in all but the biggest cases” where they don’t have the resources of larger firms. Snyder said he also appreciates Jubelirer’s articulate, thoughtful courtroom style. “Unlike so many courtroom lawyers whose desire is to impress people,” Snyder said, Jubelirer doesn’t do anything he hasn’t thought through, and in court, “he will turn his head to the side and with a twinkle in his eye and a smile reveal a sense of humor and razor-sharp mind.” Jubelirer and his team spent six weeks hunkered down at the Malibu Beach Inn, where all the rooms face the ocean. Poring over documents late into the night, they listened to the constant crashing of waves against the shore. Their souvenir photos of the trip — taken with a disposable camera — show the stacks of documents they had driven down from San Francisco. “Nobody on our side knew the entire record of the case, so you didn’t know if you were about to step on some land mine,” Jubelirer said. “We didn’t have a chance to become familiar with the documents or the personalities of the key witnesses.” While they didn’t have time to enjoy the beach or even the hot tub on their balcony, they did get a glimpse of Hollywood stars John Cusack, Mel Gibson and Pamela Anderson. The team is back to working in less glamorous venues. In the past two weeks, Jubelirer has been in Dallas, Chicago and Toledo, Ohio, working on construction defect and asbestos cases. “I’m doing what I’ve always done,” Jublirer said.

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