Last night I attended the celebration of the career of my greatest mentor, Sheila Birnbaum, whom the legal media decades ago aptly dubbed “The Queen of Torts.” It was a fabulous event graciously hosted at the Campbell Bar in NYC’s Grand Central Terminal by her firm, Dechert, with scores of people in attendance—lawyers and clients with whom she worked, lawyers she battled against, judges, professors, and her family. I was grateful to be there, too.
The night was filled with reminiscences of what we each have learned from Sheila, and how she has helped shape not only the law of products liability and mass torts, but also the people who practice in this area. I was struck by how it is this latter impact—on people—that is probably her most important and enduring legacy. Sure, Sheila has achieved tremendous victories on behalf of her clients, but long after people forget that she won a Supreme Court decision that put due process limits on the size of punitive damages awards, they will remember what she taught people about how to be a great lawyer/advocate.
I was fortunate to work beside Sheila for more than 20 years. She taught me many things about the law itself, and how to approach it creatively, focusing first on what your client ultimately needs in order to move past a dispute, and then building the syllogisms and supporting facts and case law to get there in the litigation. (No one paid our Skadden rates for problems that had easy answers. We often had to build an argument like you would build a wall, one brick at a time–and sometimes making your own bricks.)
But more importantly, Sheila is practical. Regardless of the industry, she studies the client’s business and tries to figure out why they need what they say they need. On occasion, she can even explain to the client why what they think they need as a formal legal matter is not necessary to achieve a result that makes business sense for them. Sheila is all about streamlining solutions to real world problems. And one of the first questions out of her mouth when pitching to represent a company in a new matter is simply: “What does a successful resolution of this matter look like in your view? I.e. What must you achieve in this litigation to advance your business objectives?”
Who needs McKinsey when you have Sheila?
Sheila recognizes that complex mass torts are interdisciplinary legal problems and the importance of not being the smartest person in the room, but rather the one with the most insightful questions. When she represented a company that could not produce America’s stockpile of flu vaccine one fall due to contamination at its foreign manufacturing plant, she understood that her team had to include experts on criminal law (for Congressional testimony and government investigations), securities law (for the inevitable class actions), product liability law, and lawyer/scientists from the firm’s intellectual property group who could understand the science and build a factual defense to the case. In addition, increasingly in mass torts, the path to a final binding resolution lies in bankruptcy rather than a class action settlement, and Sheila has worked with so many bankruptcy lawyers in the past few years that she could almost become one herself. Mass torts, Sheila knows all too well, is indeed an interdisciplinary discipline.
Sheila has always understood that defending a company is very personal. It is trendy for filmmakers and the plaintiff’s bar to paint corporations as nameless, faceless, soulless villains. But they are not. They are made up of everyday people who are proud of their products and their reputation, and want people’s experience with those products to be fulfilling.
When Sheila meets new clients, she invests in getting to know the people at the company—not just the general counsel, but the other people on the legal team who will be essential to getting things done in the case. She asks about their families, about their careers, and the internal pressures they are under to deliver answers to their business clients. And she lets them know that she and her team have their backs. When the in-house lawyer receives a question with an impossible deadline, she knows she can call Sheila’s mobile and her team will get the answer and deliver for that in-house lawyer. As you can imagine, this engenders great loyalty among Sheila’s clients. So, too, does Sheila’s attention to those lawyers’ career advancement long after the litigation is over.
Sheila also respects her adversaries; she doesn’t lie or play trivial games. And she has had tremendous success in negotiating favorable mass tort settlements by studying and understanding the plaintiff’s lawyers (their business objectives and their clients’ needs) as thoroughly as she does her own clients. She knows about her adversaries’ families and their interests. Sheila knows that even with your adversary, lawyering ultimately is personal.
Perhaps one of the best lessons I learned from Sheila is that authenticity matters. Sheila graduated law school the year I was born, when there were only a handful of women in law school and the only areas deemed acceptable for them to practice in were family law and trusts and estates. But this tough Bronx Jewish lawyer wanted to litigate, and chose the emerging field of products liability at a time when the concept of strict liability was just being developed.
As a litigator in this area, Sheila stood out like a sore thumb. I was privileged to attend a number of new business pitches with Sheila. Typically we would enter the room as a gaggle of patrician men were exiting, giving hearty handshakes to their interviewers. Sheila knew you can’t out-WASP a WASP. She entered the room as who she is, hugging her new acquaintances and asking about their families. She didn’t talk about last night’s game or the coming season’s lineup for any sports team, but she found meaningful personal ground on which to engage each interviewer, and she would remember it (and ask them about it) for years. When we left the room, it was hugs all around, as if she were everyone’s Bubbe. And as she would leave the room, she often reminded them that, “If you hire us, we’re going to take care of you, and I’ll be with you to field any questions as you present to your board.”
Sheila is an inspiration for each of us non-traditional lawyers to stop trying to be a cookie-cutter lawyer, but to be authentically ourselves—especially if we do not otherwise fit within the preconceived mold.
As of last night, Sheila has moved on from being a lawyer-advocate. But this octogenarian is not retiring! (She was never retiring–or shy, either.) Instead, she is moving on from Dechert to become a mediator for complex litigation matters. To my mind, as a consummate student of people, this is a role Sheila has been preparing for her whole life. As with all of her prior roles, I expect her to be wildly successful. Have fun solving those puzzles, boss! And thanks for a lifetime of lessons, which I have taken to heart.
