Southern California Super Lawyers 2006
Does Brian Panish Ever Lose?
A RECENT WIN AGAINST THE CITY OF SAN FRANCISCO BRINGS HIS $1 MILLION WIN TOTAL PAST THE 100 MARK
By Larry Rosen
Photography by Larry Marcus
From his bench outside a closed courtroom in the San Francisco federal courthouse, Brian Panish assumes the loosely coiled posture of an athlete, and not by accident. From 1976 to 1979, before he became one of the country’s most prominent plaintiff’s lawyers, Panish roamed the defensive backfield for coach Jim Sweeney’s Fresno State Bulldogs. Then, as now, he was a team leader.
Try this one and see how it fits: four billion, nine hundred and seven million, six hundred and sixty two thousand, three hundred and twenty-one dollars. That’s the amount of what was, at the time, the largest personal injury and product liability verdict in U.S. history. Panish won it from General Motors in 1999 for his clients who were injured when their car exploded. GM was then the largest corporation in the world. It was not, however, above the law.
In all, Panish has won more than 100 verdicts and settlements of more than a million dollars, 13 in excess of $10 million. In a few days, when Panish hears the verdict of his latest trial, Dominguez v. San Francisco, both numbers will increase by one. At present there is no verdict. The jury is deliberating, arguing the merits of his case behind a locked door.
“I’m not allowed to talk about this case,” he says referring to the debates going on just a few feet away. “There’s a gag order.”
For Panish, Dominguez v. San Francisco is not unusual: Someone has suffered; someone else’s negligence led to her suffering; Panish has been called in to seek justice. In this particular case, a city vehicle struck a 4-year-old girl as she was crossing a city street. “This,” Panish says, “was one of the most deep-down emotional cases I’ve ever tried.”
In a country where “plaintiff’s lawyers” and “personal injury lawyer” are used by some politicians as pejoratives, Panish stands out as a man driven by ideals. He learned this from his father, who was also a lawyer. “We talked about his cases,” says Panish, “and I could relate to them.”
First, though, came football.
“Other than family, that’s my first love,” he says. Most of his friends, he says, are football coaches. Panish himself has coached high school football (“St. John Bosco, 1981 to 1982. The only time in the history of the school that they won back-to-back Del Rey League Titles,” he says proudly) and continues to coach his two daughters, ages 14 and 12, and one son, age 6, in youth league sports.
Panish, who grew up in the Los Angeles area, played several sports in high school. Upon graduation, Fresno State offered him a football scholarship. He played free safety, made friends for life and learned many lessons he now applies to the courtroom and to his life. For example, he learned that it’s not necessarily the fastest and strongest that win, it’s the smartest and most prepared. “It’s who can react and knows what’s coming, who anticipates and gets complex defenses,” he says. He learned to relate to all kinds of people and, also, he says, “that the most important thing is the team.”
Back outside the closed courtroom, Panish is the team captain. Lawyers approach him, whispering in his ear, requesting his time, if just for a minute. “They have another question,” one whispers. Panish unfolds his 6-foot-4-inch frame from his bench and follows his teammate down the hall, pausing to quietly check on the Dominguez family, who sit a few benches away.
There was a time, long before his General Motors case and million-dollar verdicts, that Brian Panish was an untested rookie. Just out of law school, green but the equivalent of a first-round pick, Panish found himself representing a plaintiff in a case involving tire tread separation. “I remember waiting for the jury,” he says. “It’s no different now than it was then, how anxious you get.” During deliberations the jurors emerged long enough to ask for a pad of paper. The inexperienced Panish wondered why the jury needed paper. “[Colleagues] were making fun of me all night, saying, “Paper? That must be a bad sign.” The jury needed the paper, obviously, to calculate the amount of money the plaintiff would be awarded.”
Panish’s style is not flashy. Though he spent his football days as a free safety, the quarterback of the defense, speeding from sideline to sideline and looking to make the big ESPN-worthy hit, his courtroom style, he says, is more Joe Friday than Joe Namath. He’s a grinder, what Monday Night Football analyst John Madden would call a “hard-hat-and-lunch-box kind of guy.” He has too much respect for juries to try to impress them with smoke and mirrors. “Juries see right through that [showmanship],” he says. “You’re never going to get by any juror by playing for sympathy. No way. They’re too smart for that.”
Consider the General Motors case, in which an entire family received third-degree burns when their 1979 Chevy Malibu exploded after being rear-ended. The family was driving home from church on Christmas Eve. They were hit by a drunk driver. Had the gas tank not exploded, expert analysis found, the worst injury would have been a broken leg. Of the six family members, the 11-year-old daughter’s injuries were the worst. Her hand was burned completely off, and her face, legs and arms were badly scarred. Panish received a call from the lawyer, asking that he meet with the family. “When I saw one of the young girls, and how horribly disfigured she was, I knew we had to do everything we could to help this family,” he says, recalling the meeting.
Given these gut-wrenching facts, Panish and his team could be forgiven if their courtroom arguments had been tinged with dramatics and sympathy. Instead, they based their argument on internal GM documents and memorandums. These included the “Ivey Memo,” a 1973 document in which Edward C. Ivey, an Oldsmobile engineer, reasoned to his superiors that it would be more cost-efficient for General Motors to settle with the families of each of the 500 people burned to death annually in GM cars than to install safer fuel tanks in the vehicles.
The cost of the upgrade? $8.59 per car. “Our approach,” says Panish, “was that this was clearly a survivable impact. [GM] could have designed to prevent this, but they put profits over safety.” In the end, the plaintiffs were awarded $4.9 billion.
Proof that no good deed goes unpunished, Panish has earned himself a starring role on lawyer-bashing and tort reform Web sites, blogs and newsgroups. His photo adorns a page of Trial Lawyers, Inc., a publication aimed at Los Angeles, the “least fair litigation environment in the nation,” according to a Harris Interactive poll of corporate executives. Panish shrugs this off. “It’s this whole propaganda thing going on,” he says. “There is a well-financed group trying to take away people’s right to a jury trial.” As Panish talks, the old football player fire rises in his eyes. “They’re tampering with people’s ability to come to a courtroom, the only place in America where an individual can be on equal footing with a large corporation.
“When you’re taking on these corporations, they’re not just going to hand over the money. You’re taking a risk,” he says. “A big risk. I don’t think it’s opportunistic at all.”
Panish’s bottom line is that he has to believe in his cause. He peppers his conversation with words like “righteous” and “crusade.” “I wouldn’t take a case if I didn’t feel there was a righteous claim,” he says. Juries can tell, he says, if a lawyer believes in his cause. And though wins are measured in numbers, Panish keeps score with names. “The No. 1 motivating factor is the clients. You’re their only hope. Whenever you get tired or down, think about the client, and that motivates you.”
In April 2005 Panish left Greene, Broillet, Panish & Wheeler, where he was a partner for 18 years, to start Panish Shea & Boyle. “My father had his own firm. We wanted to chart our own course.” The split was not acrimonious, and in fact, the new Panish Shea & Boyle will be working with the old Greene, Broillet & Wheeler on behalf of the nine victims of the July 16, 2003, Santa Monica Farmer’s Market crash. Six were injured and three killed when a driver plowed his car into a crowd of shoppers at the Santa Monica Farmer’s Market on that day. In this case, the issue is whether the city should have installed a wall to protect farmer’s market shoppers from out-of-control automobiles.
On September 1, the jury returned its verdict for Dominguez v. San Francisco. The resulting $27 million award was the largest amount ever paid by the city of San Francisco. Afterward, despite the triumph, Panish remained on an even keel. The gag order lifted, he was now free to talk, but not to gloat, or even celebrate. “It’s more a sense of relief,” he says. “I don’t have the feeling of wanting to high-five everyone. I don’t see a lot of lawyers high-fiving each other when they get a big verdict,” he adds, dryly. This case is a tribute to its plaintiffs, he says. “It shows that people can stand up to city hall.”
“This family,” Panish says, “has great faith. Being a parent myself, to see what these parents were going through.” his voice trails off. “But they battled back. They’re relieved, too, but also glad that the jury recognized what they’ve been going through.”
Now the case, like all cases, inevitably enters the realm of motions and appeals. It’s over, but it’s not over. Panish has cases waiting, including one involving an SUV rollover, but he will remain with Dominguez v. San Francisco until its ultimate decision is reached. He’ll grind it out, like the competitor her was and still is, until the final gun sounds. “We’ll argue the appeals,” he says. “I’m going to be on this case until justice is served.”