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In his law firm of sorts, there are 150 lawyers handling roughly 1,900 cases with billions of dollars at stake. And, depending on your perspective, the client is either a single entity or 285 million people. David M. Cohen, a broad-shouldered, silver-haired, weekend sailor, charts the course of government litigation in the Commercial Litigation Branch of the U.S. Department of Justice’s Civil Division. And it’s fair to say that some private lawyers would be happy to see his boat lose sail. Director of the branch for 23 years, Cohen conveys a toughness and solidity that obviously influences the government’s litigating posture in the areas that are on his watch. His sharpest critics today are the plaintiffs’ lawyers in government contract suits involving failed savings and loan associations. The government’s potential liability is an estimated $35 billion. It’s big-dollar litigation, says thrift litigator Charles Cooper of Washington, D.C.’s Cooper & Kirk, a former Justice Department lawyer. “That having been said, I still haven’t seen the government litigate a case in the way the government has litigated these cases,” he says. His colleague, Peter J. Broullire III, a solo practitioner in Albuquerque, N.M., agrees: “We are talking about a very, very hard-nosed, government position.” Cohen, unfazed, says, “We have a lot of responsibility, and a lot is at stake.” The responsibility includes all Civil Division litigation in the U.S. Court of International Trade, the U.S. Court of Federal Claims and the U.S. Court of Appeals for the Federal Circuit. His branch’s 1,900 cases break down into about 1,400 at the trial level and 500 at the appellate level. “We spend a lot of our time on government contract, regulatory takings and military pay cases,” says Cohen, who came to the Justice Department in 1973 as a lawyer in the Civil Division’s appellate section (“It’s the best job any lawyer could have,” he says. “I traveled around the country and argued cases in every circuit but one.”) NOVEL ISSUES His branch has faced the most novel and complex issues in recent years in the damages and regulatory takings areas, he says. “Most government contracts litigation involves relatively standard contracts with clauses that tell you how to determine damages,” he says. “But in the Winstar-related cases [thrift litigation], we don’t have any damages clause. We have to use contract principles, and it’s amorphous and difficult to determine how to measure damages.” In the regulatory takings area, the problem is that the law is so unclear, he says. “We have a case involving cigarette vending machines, and the vendors claim their property was taken by the government when the FDA [Food and Drug Administration] said they couldn’t put the machines where minors would have access. “And we have another case involving tanker ships which must have double hulls by a certain date. The claim there is a taking of single-hull vessels.” SPENT FUEL PROBLEMS His branch is also handling multi-billion dollar litigation concerning the government’s failure to fulfill contracts for disposal of spent nuclear fuel. “We settle about 40 percent of our cases, but that’s usually after discovery,” Cohen says. “Agencies have to think long and hard before litigating cases because the risk is to their own money.” Keeping the longtime government lawyer at Justice is a combination of law and culture. “People here always understand that with litigation, you have to make decisions and sometimes quickly,” Cohen says. “You don’t have to go through a million layers of bureaucracy.” And, he notes, department lawyers get to know all of the decision-makers. “That means that sometimes the youngest trial attorney can end up in a meeting with the attorney general.” The Civil Division has a tradition that managers also litigate, he adds: “That has been fun and these issues are fascinating. You’re at sea in a lot of them and it’s an opportunity to help shape the law. I have no reason to leave.”

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