Top Attorneys in Employment Law

Source: Scott Graham, Editor in Chief

Front Page: Top Attorneys

If you're a corporate executive and you've just been fired from your job, whom would you want to represent you? If you were the corporation, who would be the best choice to defend you?

The Recorder has surveyed the opinions of some 25 attorneys, judges, mediators and clients knowledgeable about employment law. Today we present their consensus choices for the Bay Area's premier employment law attorneys. It is one in a series of the newspaper's Top Attorneys special reports.

Topping the list are Orrick, Herrington & Sutcliffe's Lynne Hermle; Wilson Sonsini Goodrich & Rosati's Fred Alvarez; Rudy, Exelrod & Zieff's Mark Rudy and McGuinn, Hillsman & Palefsky's Cliff Palefsky.

To find out why they made the list, plus other employment attorneys who are held in high regard, turn to page 7 for our special report.

Page 7: Top Attorneys - Employment Law - Editor's Note

Today's special report marks The Recorder's second survey of top attorneys in the Bay Area.

In November, we presented a few top attorneys in 10 practice areas, including bankruptcy, admiralty, securities litigation and family law, among others.

This year we are taking a different approach. Each quarter we will shine a spotlight on a dozen or more of the top attorneys in a single practice area.

Today we are looking at employment law. To determine the names, The Recorder interviewed some 25 attorneys, mediators and corporate clients - most of whom are exceptionally knowledgeable about employment litigation. We asked them, quite simply, who stood out from the pack. (For the purpose of this survey, to maintain an apples-to-apples comparison, we did not inquire about labor lawyers who focus primarily on collective bargaining and NLRB issues).

We considered any employment lawyer based in the Bay Area - which created a challenge inasmuch as employment law in San Francisco-Oakland is a different animal from employment law in Silicon Valley-San Jose. Most of the attorneys featured on the following pages have made names for themselves in both markets.

One other bit of feedback is worth noting. Almost to a person, the attorneys and jurists interviewed for this article remarked on the collegial nature of the Bay Area's employment bar. Plaintiffs and defense lawyers alike expressed admiration and even affection for the people they do battle with in court or across a conference table - at least, the people mentioned on these pages.

Cliff Palefsky, who along with Mark Rudy received the most votes for top plaintiff employment attorney, analogizes to the stereotype of physicians' social skills. "There are surgeons and there are pediatricians," he says. In the Bay Area, "commercial litigators are surgeons. Employment lawyers are pediatricians."

Palefsky also notes that with the cost of trying cases approaching as much as $500,000, there's a lot of incentive for lawyers to get along with each other and find a middle ground.

Most of the people interviewed for this report said the atmosphere is different in Southern California, where bravado and hardball permeate the employment bar. One plaintiffs lawyer recalls enduring a 15-day deposition there, even with a referee present. "It's a much more contentious relationship" in Southern California, says a defense lawyer.

Plaintiff and defense lawyers alike say that the boom in employment litigation over the past quarter-century has had benefits for California. Both sides say that big employers have heard the message and have developed a more professional approach to human resources, which has been good for business and for workers.

Of course, plaintiffs lawyers say there are still some abuses, and defense lawyers say there are still litigation excesses.

We hope you'll enjoy our look at top employment lawyers. Later this year we plan similar features on real estate lawyers, insurance attorneys and life sciences counsel. If there's anyone in those practice areas you would like to nominate for consideration, it's never too early. Feel free to e-mail me suggestions, or any feedback you have on today's special report. My e-mail is sgraham@therecorder.com

-Scott Graham, Editor-in-Chief

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MARK RUDY

Where Cliff Palefsky has a difficult time completing a sentence without the words "truth" and "justice," Mark Rudy is all business.

"I'm not a table-pounder," the 59-year-old Rudy says. "I'm more business-oriented."

But he's no less effective an advocate, according to Bay Area employment experts. "He could be a professor except that he's such a good lawyer. He's Superman," gushes one employment specialist - a defense lawyer who opposes Rudy in litigation.

Lawyers interviewed for this story said Rudy's even keel and detailed knowledge of the law make him proficient not only at advocacy but also at mediating employment cases. Rudy, of Rudy, Exelrod & Zieff, was one of the top 10 mediators in the Bay Area in a 2002 Recorder survey. He spends about 75 percent of his time as a neutral and 25 percent on his own caseload.

Like Palefsky, Rudy says mediation is an ideal vehicle for resolving most employment cases. "I've been through trials. It's exhilarating for the trial lawyer. But it's hell for [clients on] both sides," he says. Clients endure the same kinds of emotional and financial beatings that couples take in divorce trials, he says.

"The most important thing for them is to get closure and move on with their lives," he says.

Rudy graduated from Georgetown University Law Center in 1969, then did government-sponsored volunteer work. "It was either Vietnam or VISTA," he says. "I became a VISTA lawyer."

During that stint he helped obtain a consent decree against hospitals in the New Orleans area that were refusing to provide emergency medical treatment to uninsured patients. He also did housing work in Washington D.C., before coming to San Francisco to work for the Equal Employment Opportunity Commission. By the late 1970s he had started his own practice. At about that time California appellate courts were breaking new ground on wrongful discharge law with cases like Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167 (1980), and Pugh v. See's Candies, 116 Cal. App. 3d 311(1981). Rudy says he tried about 10 cases over the next decade involving breach of implied covenant of good faith. He also helped win a $485,000 jury verdict in a drug-testing case - Luck v. Southern Pacific Transportation, 218 Cal.App. 3d 1 (1990), and a $325,000 award in an age discrimination case, Stephens v. Coldwell-Banker, 199 Cal. App.3d 1394. On Dec.29, 1988, a more conservative California Supreme Court, then under the leadership of Malcolm Lucas, revisited the doctrine of wrongful termination. Rudy remembers standing in line with other employment lawyers at the clerk's office, waiting for the court to issue Foley v. Interactive Data, 47 Cal.3d 654. "There were about 15 to 20 of us waiting for the decision. We wanted to determine if we were still practicing employment law."

The court didn't eliminate wrongful termination claims, but it did scale back the damages available in many such cases. For that reason and several others, Rudy began transitioning to mediation. But he has always carved out some time for advocacy. Rudy says he needs to be in the trenches to keep up with what's happening on the bench and in the law. "It's difficult juggling," he says. "I work very hard. I have found it not essential, but certainly important, to offer that experience."

ALAN EXELROD

Alan Exelrod gained fame as one of the attorneys who tried Weeks v. Baker & McKenzie, the case that put sexual harassment litigation on the national map. But Exelrod, of Rudy, Exelrod & Zieff, is no one trial pony. Two years after scoring a $7 million verdict in Weeks (reduced on appeal to $3.5 million), he obtained a $3.5 million verdict in a harassment case against Safeway, teaming up again with his Weeks co-counsel, Phillip Kay. Around the same time he was obtaining settlements for harassment on behalf of three women against ICN Pharmaceuticals and its CEO, Milan Panic, the former prime minister of Yugoslavia. That case made worldwide headlines. In the past several years he has won a $1.2 million verdict for an insurance company employee who refused to sign a non-compete agreement and a $2.7 million verdict against Oracle Corp. in a whistle-blower case - each of which was upheld in published opinions on appeal. A judge familiar with Exelrod describes him as "very cerebral, very smart, very well-prepared." While one attorney who has litigated against him says he's "not the most imposing courtroom presence," he says Exelrod is "highly effective" at getting a good result for clients.

STEVEN ZIEFF

Steven Zieff, a partner of Mark Rudy and Alan Exelrod, received a couple of mentions, giving Rudy, Exelrod & Zieff a trifecta. Zieff won a $90 million verdict in Bell v. Farmers Insurance Exchange, a trail-blazing wage-and-hour class action.