Brian Panish of Los Angeles: A vanishing breed

WAR STORIES

In the modern era of spiraling litigation costs, contractual arbitration clauses and tort reform, Americans' Seventh Amendment right to civil jury trials is gradually eroding. The American Board of Trial Advocates (ABOTA), founded in Los Angeles 60 years ago, is comprised of the nation's finest trial lawyers, dedicated to preserving Americans' right to jury trial and promoting civility and integrity in trial practice. Each month, this column explores the secrets and successes of California's most experienced and celebrated trial lawyers, a vanishing breed to be sure.

This month's profile is Brian Panish of Los Angeles' Panish, Shea and Boyle, whose eye-popping trial verdicts and record-setting results over the last two-plus decades are already legendary. I could let loose a gusher of superlatives, but Mr. Panish's achievements speak for themselves: over 140 civil jury trials to verdict, 31 jury verdicts over $10 million each, three jury verdicts over $50 million each, the nation's largest-ever personal injury jury verdict of $4.907 billion, and maybe Brian's favorite record, California's largest remittitur ($3.8 billion, bringing his previous record verdict down to only $1.1 billion). Panish is an ABOTA Diplomate (100 or more jury trials). He is a past president of L.A.'s ABOTA Chapter (2011) and has been honored deservedly as Trial Lawyer of the Year by California ABOTA (2010) and a host of other associations.

You could say that trial lawyering is in Brian Panish's blood. As the son of Howard Panish, himself a successful trial lawyer and ABOTA Diplomate, young Brian Panish frequently took the bus after school to the downtown L.A. courthouses, where he finished his homework, but more often watched his father try cases. The lessons must have stuck.

Catching up with a busy lawyer the likes of Brian Panish was no small feat. Ultimately, we met on the ninth floor of the Stanley Mosk Courthouse, amidst the bustle of the noontime recess. How fitting, I mused. Brian was embroiled in a long-running jury trial about a truck accident with catastrophic injuries. I was grateful for his time and cut right to the chase.

Against a backdrop of whirring wheeled briefcases and gurgling soda fountains, Panish spoke most glowingly of his clients who had no lost earnings, no lifelong medical expenses, no real economic loss. Only a collection of stories telling of how his clients' loved ones had touched others' lives.

Panish doesn't hesitate in proclaiming that his proudest courtroom experiences invariably came when, as his client's last and only advocate, he was able to convey the meaning, value and memories of his clients' lives through the life stories they shared with loved ones, before tragically leaving them behind. "The relationships we form and the imprint we leave on others' lives are what define us as people," reasons Panish. To succeed, you must "tell your client's story," Panish advises. "Present your clients as unique individuals and make their life stories compelling."

In Culbertson v. MTA, Panish championed the cause of a hearing-impaired, 78-year-old Compton mom, whose blind, unemployed, adult son, Cameron "Carwash" Culbertson, fell between train cars and onto the tracks, while trying to negotiate his way onto the Blue Line. Horrified onlookers watched as a Metro train severed Culbertson's body in half as he vainly tried to extricate himself from the tracks. Employing two blind experts using collected ridership data, Panish established that the Blue Line transported the most and poorest passengers in the region's rail system and that disabled passengers were disproportionately reliant on public transportation. He also proved that the blind Culbertson had used his cane appropriately and effectively, but had unfortunately attempted to board at the station with the fewest safety barriers. Many American and international rail systems post signs warning riders to "Mind the "Gap" (i.e. spaces between trains). Blind riders, however, require physical barriers, and there weren't any.

Before a courtroom gallery packed with blind citizens, Panish urged his client to recall the touching refrain that bonded her to her son: "You are my eyes," her son often reminded her. "You are my ears," rejoined his mom. But now he was gone and his mom only suffered in silence. "You, the jury, must be his voice!" Panish exhorted his jury. The jury responded with a verdict of over $17 million. (MTA's pre-trial offer had been $25,000.)

In Cisler v. Saddleback Unified School District, the case of the wrongful strangulation death of a disabled 3-year-old in a defective safety harness, Panish struggled to convey to the jury the magnitude of the loss of the toddler with Angelman Syndrome and why his family should recover against the community's school district. Children afflicted with Angelman Syndrome are generally good natured, but can't speak. Nonetheless, Panish showed the impact the boy had on the people who knew him through a stream of the defendant's own school employees -- teachers, administrators, janitors -- each of whom testified how their daily lives were brightened by the cheerful child. The Orange County jury's verdict: $10 million.

Panish's record $4.9 billion verdict came in the 1999 trial of Anderson v. General Motors, and with it, Panish's self-described "craziest trial moment." In Anderson, a poor African-American mother and her small children all survived a horrific auto collision coming home from church services on Christmas Eve. All three children suffered unfathomable, life-altering burn injuries, which Panish attributed to a leaky fuel tank, which GM knew about, but refused to recall and correct. GM had run a crash test with an exemplar vehicle, recreating the collision speeds and circumstances testified to by the plaintiffs. GM claimed that its test results proved its vehicle was not defective. So, during trial, GM sought and obtained a jury inspection of the test car in a GM warehouse.

At the inspection, GM had the test car raised on a hydraulic lift for the jury's undercarriage inspection. Unfortunately ("You can't make this stuff up," teases Brian), during the inspection, a droplet of fluid fell from the fuel tank directly onto a juror's head! Panish reckons the stranger-than-fiction moment gave instant plausibility to his faulty fuel line theory and punitive damages case. His closing arguments on the children's behalf cinched Panish's finest hour.

However, Panish's most memorable and skillful trial performance occurred six years later. Like the other cases illustrated above, Dominguez v. City of San Francisco recounted an incredibly sad story. The plaintiffs were a grandmother and mother who, together every morning, walked their 41/2 -year-old pride and joy through their rough neighborhood to the Head Start program to which she had won entrance. The little girl was to be the family's first U.S. citizen and first English-speaker.

As they stood on the street corner waiting to cross, a private vehicle violently collided with a Municipal maintenance truck, which careened over the street corner curb and, with the little girl impaled on its hood, through the facade of a pizzeria. The force of the collision "traumatically amputated" the 41/2-year-old girl's brain from her skull right before her distraught mother's and grandmother's eyes.

The city disputed liability and the case went to trial in a San Francisco courtroom. The coroner's photos of the victim were so graphic that, even though it had taken Panish months pursuing and finally winning disclosure of the photos, the judge only allowed Panish to enter one (his choice) into evidence. Panish selected one, had it discretely authenticated by the coroner on the witness stand, and quietly tucked it into an envelope.

In his empathic closing argument, Panish imagined the horror of what the mother and grandmother had witnessed, as their beloved angel, hopes and dreams were instantly destroyed. He warned the jurors that photos of the girl's injuries were too gruesome to display in court, too horrible for even him to study, but as evidence, he would send only one into the jury room, in a sealed envelope. If the first responders' testimony or the jury's collective imagination weren't enough, any juror could open the envelope and view the photo in the jury room. Panish left it to the jurors to decide. In the end, none dared to open and look, but did return a verdict of $27 million.

As time for the afternoon session of his trial grew close, Panish gathered up his notepads and papers. His parting advice to novice trial lawyers? "Don't worry about winning and losing. Get in there and try your cases. Your tough ones, your unlikely ones, your untried theories. You'll learn. You'll improve. And if you can make that essential connection between your client and the jury, you're bound to win more often than not."