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Two legal advocacy groups that want a judge to declare San Francisco’s gay and lesbian marriages illegal have so far fought the city independently in state court. Now that the two cases have been consolidated, the Alliance Defense Fund and Liberty Counsel will have to work together. But clearly, neither the Orlando, Fla.-based Liberty Counsel nor the Alliance Defense Fund of Scottsdale, Ariz., wants to play second fiddle. “We’ll resist as much as possible having our case subsumed to any case,” says Benjamin Bull, Alliance Defense Fund chief counsel. Liberty Counsel’s complaint has been designated the lead case, notes President Mathew Staver, adding that the attorneys in a lead case generally present arguments. If there is going to be a fight over control of the case, it won’t surprise trial attorneys. “Many, if not most, litigators and trial attorneys are competitive by nature and, consequently, would rather be driving the car than sitting in the back seat,” says Otis McGee Jr., a partner at Sheppard, Mullin, Richter & Hampton in San Francisco and a member of the executive committee for the California State Bar’s Litigation Section. Both parties challenging San Francisco’s gay marriage licenses are quick to say they will avoid friction. “We all understand that a harmonious relationship will produce potential better results,” Bull says in an e-mail. “Our battle is with the city, not with each other.” The two groups each filed a legal challenge in Superior Court Feb. 13, the day after San Francisco began issuing marriage licenses to same-sex couples at Mayor Gavin Newsom’s behest. ‘SEPARATE STRATEGIES’ Despite similar missions and a shared goal, lawyers working on the Alliance Defense Fund’s Proposition 22 Legal Defense and Education Fund v. San Francisco have steered a separate course from Liberty Counsel lawyers on Thomasson v. Newsom. “Except for seeing each other in court, there hasn’t been — we’re not working in tandem, let’s put it that way,” Bull says. “We’re not affiliated at all,” Staver says. “We have separate strategies.” Both are nonprofits that attempt to advance and defend religious rights, traditional family values, and the sanctity of human life. Staver, who founded Liberty Counsel, had been a pastor for three years when a video on abortion and a reading of the U.S. Supreme Court’s decision in Roe v. Wade drew him to law school. The 1987 University of Kentucky College of Law graduate started Liberty Counsel in 1989, along with two other Florida-based businesses that have since shut down: Staver and Associates, a law firm that handled primarily insurance defense work, and the Staver Group, a lobbying firm. Staver says his clients included Marriott hotels and the Orlando Magic basketball team. In 1999, Staver turned his full attention to Liberty Counsel, where he is one of six litigators on staff in Florida and Virginia. Another 600 to 700 affiliate lawyers pitch in as local counsel on out-of-state cases. In addition to litigation, Liberty Counsel dabbles in higher education, radio, and television. The firm plans to open a law school this summer in Lynchburg, Va., in partnership with Liberty University, a private Christian college, says Staver. He also hosts two weekday radio programs and a weekly television show produced by Liberty Counsel, according to the firm’s Web site. In contrast to Staver, Bull, the Alliance Defense Fund’s lead lawyer on the San Francisco cases, began his career as a prosecutor. After graduating from the University of South Carolina School of Law in 1975, Bull spent six years in Virginia as a criminal prosecutor, then three years in civil litigation as a deputy county attorney. About 20 years ago, his prosecutions of obscenity cases brought him into contact with Christian organizations that needed legal help, Bull says, prompting him to move on to a string of posts with religion- and family-oriented legal groups. Most recently, he spent about three years as executive director of the European Centre for Law and Justice in Strasbourg, France. When he returned to the United States in 2001, Bull joined the Alliance Defense Fund, where he supervises more than 20 staff lawyers in the organization’s Arizona headquarters and in its regional offices in Southern California, Louisiana, and Kansas. He also oversees 740 allied attorneys. In addition to getting directly involved in litigation, the Alliance Defense Fund strategizes with like-minded groups about which cases to try and which to pass on, trains Christian lawyers at five-day “litigation academies,” and offers grants to attorneys to try cases in line with the fund’s mission. In the San Francisco cases, the two groups started by picking slightly different opponents in their original actions — only Liberty Counsel named Mayor Newsom in his individual capacity and only the Alliance Defense Fund named the city. And although both firms share cornerstone arguments based on sections of the California Constitution and state family laws, there has been some divergence — such as Liberty Counsel’s assertion that city officials violated open meeting laws. San Francisco Superior Court Judge Ronald Quidachay consolidated the two cases late last month. Citing a state court rule, he designated Liberty Counsel’s Thomasson the “lead” case because it was filed before the Alliance Defense Fund’s Prop 22. TIME TO TALK Attorneys from both groups say they haven’t discussed how the consolidated cases will be tried, but expect to do that soon. They may signal how they will merge their strategies on March 29, when Quidachay is scheduled to preside over a show-cause hearing. The two groups may divide oral arguments or file separate briefs, Staver says. For now, Bull says he expects each firm to file their own briefs and present oral arguments on different points of law, “so as not to irritate the judge.” Some civil litigators say time limits can provide another incentive to work together, particularly at the appellate level. In the San Francisco court’s law and motion departments, where Quidachay presides, attorneys aren’t typically given firm time limits, but can usually sense when a judge doesn’t want to hear any more, says San Francisco solo practitioner Herbert Yanowitz, who sits on the litigation section’s executive committee. But appellate court justices typically impose strict time limits, Yanowitz says. “Very often, they’ll just cut you off.” The thought has crossed Bull’s mind. “A court of appeal may say one lawyer may argue per side, but we have separate plaintiffs who may not agree on strategy,” Bull says. “We’ll agree maybe on 80 percent of the things, but you know, 20 percent we may disagree.” Staver says it doesn’t make much sense to split up oral argument if an appellate court gives each side only 15 minutes or so, unless the lawyers can easily divvy up the issues. Still, he’s confident the two firms will be able to iron out any wrinkles as they come up. “I wouldn’t anticipate any significant disagreements.” Pam Smith is a reporter at The Recorder, the American Lawyer Media newspaper in San Francisco, where this article first appeared.

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