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As appellate specialist Daniel Smith argued in court in late November that his client in a negligence case had been prejudiced by the exclusion of crucial evidence at trial, one appeal court justice started to ask a question. “I’m not quite finished,” Smith said gently. Surprisingly the justice said, “OK,” and backed off. Justices don’t like to be cut off. But Smith, a solo practitioner from tiny Kentfield in Marin County, pressed further minutes later by telling all three justices on the panel they were wrong in suggesting his client should have raised objections after the trial court judge made his decision. “That’s not the law,” Smith said firmly. “If you want that to be the law, then please announce that in an opinion.” Not many attorneys would be given that much leeway. But Smith, who obtained a reversal in that case, is no average lawyer. He has specialized in plaintiffs-side civil appeals for 28 years, and has appeared before appellate panels — including the California Supreme Court — up and down the state. Most justices know him well. As a result, Smith can push the limits of argument. “You should always be deferential,” he says, “but you can be deferential and still be firm.” And still win. Smith has taken on and beaten many major corporations, including tobacco companies, automobile manufacturers and airlines. In some of the cases he’s most proud of, Smith obtained the first affirmance of compensatory and punitive damages against a major tobacco company for a woman with lung cancer, twice obtained reversals of rulings that denied an asthmatic man the right to prove he wouldn’t have consented to treatment with a drug that caused hip injuries, and won the right for asbestos victims to recover from brake-product manufacturers under market share liability. “I’ve got a niche,” he says, “and I really like it.” What’s impressive to friends and foes alike is that Smith has had such success while working solo — and almost exclusively for plaintiffs. “He is one of the few appellate lawyers I know who has made a very successful go at representing plaintiffs on appeal,” says Jon Eisenberg, an Oakland-based partner for Horvitz & Levy, an Encino appellate powerhouse that often represents insurers and corporations. “I don’t know how he does it. I’d love to know.” Smith says he keeps the money coming in the only way he knows how — by maintaining a reputation as a fair and honorable lawyer. He finds clients through legal seminars and writing classes he teaches, networking in lawyer organizations, and by word of mouth from satisfied customers. That has allowed him to maintain a steady stream of work on issues ranging the alphabet — from appellate procedure to zoning. He says he handles 10 to 15 cases at a time, and doesn’t balk at taking them on a contingency fee basis. “Sometimes the lawyer wants to pay me an hourly fee, which I’ll accept,” he says. Jerry Spolter, a partner at Spolter, McDonald & Mannion and a mediator for JAMS, says Smith was a fledgling lawyer when he first heard his name. “I used him in my first appeal, and I’ve used him on every appeal since,” Spolter says, “and he has never lost for me. “He’s a star,” Spolter gushes, “and he’s an elegant, honorable, ethical person.” James Sturdevant, president-elect of the Consumer Attorneys of California and a plaintiffs lawyer who has retained Smith on some high-profile tobacco cases, says Smith is highly regarded because he has “mastered appellate rules” and carries a sense of authority. “The key to effective advocacy is neither to be too strong or too meek, but to argue with respect, with some force behind what you’re saying,” the Sturdevant & Sturdevant partner says. “That doesn’t mean loud language or body movements, but with a presence.” Nancy Hersh has no complaints either, having retained Smith many times, even back into the 1980s when an appeal court affirmed a $1.7 million judgment for a woman with defective breast implants. “He’s very straight, very direct, very honest and very charming,” says the Hersh & Hersh partner. “He’s sort of old-fashioned. And let’s get down to the nitty-gritty. He’s good at what he does.” By Smith’s own estimates, he has gotten judgments affirmed 88 percent of the time before trial and 84 percent after trial. On the other side, he has gotten judgments reversed 56 percent of the time before trial and 59 percent after trial. Since 1980, he has won five of six California Supreme Court cases as either counsel of record or representing the amicus curiae. And in 2003, he persuaded the court to accept two more cases — one about the admissibility of federal health and safety standards in regard to a contractor’s negligence and the other involving landowner liability for exposing workers to asbestos. First District Justice J. Anthony Kline calls Smith “one of the better appellate advocates that regularly appear in our court.” “I enjoy lawyers who are well prepared, and he’s as well prepared as they come, Kline says. “He’s familiar with the law and he’s always intimately familiar with the record.” Another justice at the appellate level in California agrees, but believes Smith sometimes can come on too strong at argument. “If he has a drawback at all, he sometimes can be a little too vigorous in presenting his case,” this justice says. “But he knows his facts and he knows the law. When you’ve got a case with Smith coming on, you know it’s going to be thoroughly briefed and very ably argued.” Daniel Upham Smith, who turns 60 in September, was born in New Jersey but moved with his parents the next year to Kentfield, where he’s lived ever since. His father, Fred, now 95, sold business machines and was civically involved with groups such as the Sierra Club and Friends of the Urban Forest. His mother, Elizabeth Rudel Smith, was active in politics and made a name by serving as the U.S. treasurer for 15 months during the Kennedy administration. To this day, Smith possesses a black-and-white photograph of his mom conversing with a young Ted and Joan Kennedy. He also has 32 one-dollar bills framed in glass — each bearing his mother’s official signature as treasurer. Smith credits his mother’s career for his own pursuit of a life in the law. “A lot of the people we saw in the house, and visited, were lawyers,” he says. “And I found their work fascinating.” Smith’s not just talking about everyday lawyers. Mom’s friends included former California Supreme Court Justice Stanley Mosk, former California Attorney General Thomas Lynch and former Congressman Roger Kent. Smith graduated from Princeton University in 1965, then got his J.D. from Boalt Hall School of Law in 1968. After clerking in San Francisco for a year with the late U.S. District Judge Alfonso Zirpoli, Smith worked briefly as a legal aid lawyer in Alameda County, as a litigator with Sidley & Austin in Chicago and with the Los Angeles city attorney’s office, where he established the appellate department. Smith founded his own civil appellate practice in 1983, and works out of his home in Kentfield. His office is in a small and cluttered three-room extension of the main house, situated between a carport and a backyard swimming pool. He shares the space with his wife of five months, estate planner Lucinda Lee Smith. With its collection of family photos, memorabilia, travel souvenirs and legal books — including the official reports of the California Supreme Court back to 1934 — the place has the comfortable, well-worn feel one might expect of an old-world scrivener. It’s a fitting office, because Smith — tall, silver-haired and well mannered — comes across as a lawyer from another, more genteel, time. “He’s very courteous, almost patrician in his approach to arguments,” says Howard, Rice, Nemerovski, Canady, Falk & Rabkin partner H. Joseph Escher III. “He’s courtly.” Smith’s even well known for advising potential clients to drop appeals because they don’t have a chance of winning. “Often that’s the hardest thing for an appellate lawyer to do,” says James Martin, an appellate lawyer and partner at Pittsburgh’s Reed Smith. “Most people don’t want to be told they don’t have a good appeal. “Bringing a dose of reality to what can happen in the appellate process is important,” he says, “and Dan is good at that.” Smith says he simply doesn’t want someone to make “a bad investment.” “I take the ones,” he says, “where I think we have a good chance of showing serious error that affected the outcome.” And he says he will never compromise a case by taking an untenable position. “Credibility is such a high value for the appellate lawyer,” he says. “So I never take a position that doesn’t pass the straight-face test. If you take one case where you stretch for the client, you’ve got the reputation as someone who stretches and can’t be trusted. “To claim X when X is rebutted by Y,” he adds, “just makes the justices scratch their heads.” But the normally sure-footed Smith made one misstep a few Christmases back when he sent every justice on the First District a copy of “A Civil Action,” Jonathan Harr’s novel that tracked a toxic exposure suit from beginning to end from the plaintiffs’ lawyer’s viewpoint. “Scary, funny and informative,” one Random House review says, “it’s the kind of book that makes you want to write letters to the people in power when you’ve finished reading.” Smith went further than sending letters, though, and the reaction from the bench wasn’t entirely welcoming. “I got a whole range of letters, some saying, ‘Thank you for your thought, but I can’t accept it,’ and others that were very critical,” Smith says sheepishly. “Some were highly offended. They interpreted it as a direct intent to curry favor. I was mortified.” Smith calls his gaffe “a naive goodwill gesture.” The book, he says, was “very gripping and it never occurred to me that something as trivial as a book could be seen as running afoul of judicial ethics.” Lesson learned, though. Smith won’t even send Christmas cards now. He usually has a defter touch, which is why lawyers flock to the classes and seminars he teaches on writing and protecting the trial record. Briefing the courts is just as important as oral argument, he says, and in his manual, “Persuasive Legal Writing,” he emphasizes brevity, simplicity and a clear train of thought. “Lawyers get misled in law school into academic writing, which is convoluted and cluttered,” he says. “Judges want briefs written simply and concisely.” His highly lauded manual suggests that, with the correct training, lawyers can master the writing styles of greats like Henry David Thoreau and Ernest Hemingway. “My goal is to write a brief as if E.B. White wrote it,” Smith says. “That’s my Holy Grail.”

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