Cops and Courts

David Bernick, the star litigator who led W.R. Grace & Co. to acquittal last May in the biggest environmental crimes case ever, has accepted a position as general counsel with Philip Morris International.

Bernick lives in Chicago and has spent 32 years at the law firm of Kirkland & Ellis. He made his name as a litigator during the tobacco and breast-implant wars, and has a reputation for using charts and visual aids to explain complex medical and scientific issues to jurors with aplomb.

The W.R. Grace case turned out to be one of the biggest corporate triumphs of the year, and ended with a breathtaking coup de grace when a federal jury acquitted the company and three of its executives on all criminal charges of conspiracy and obstruction of justice.

Many courtroom spectators came to watch the Grace trial play out at the Russell Smith federal courthouse in Missoula specifically to see Bernick’s theatrics, and few were disappointed.

He’s been riding a wave of success ever since, and in March will move to the shores of Switzerland’s Lake Geneva to begin work in one of the colossal cigarette company’s top legal positions.

The January 2010 edition of The American Lawyer gave Bernick and Kirkland & Ellis a big nod in its “Litigation Department of the Year” competition, calling the Grace trial “the biggest corporate roll of the litigation dice in the last two years.”

“A loss for Grace would have been dire,” the article continues. “The company and several Grace executives were essentially accused of covering up their complicity in the asbestos-related deaths of dozens of residents of Libby, Montana, where Grace once operated a vermiculite mine. A conviction could have meant prison for the executives
and a crippling fine for the company.

“The odds of an acquittal in Montana—where years of news stories about the tragedy in Libby had tarred Grace—seemed low. But with prosecutors
refusing to budge on a plea deal, Grace and its executives had no choice but to go to trial. Kirkland & Ellis’s David Bernick and Laurence Urgenson coordinated the efforts of the enormous
defense team, which included lawyers from Weil, Gotshal & Manges; O’Melveny & Myers; and Mayer Brown.

“The issues,” says Bernick, who took the lead at trial, “were: How do you defend [Grace’s history in Libby] without minimizing
the tragedy? And how do you get the jury to focus on the weaknesses of the government’s theories as opposed to just going with the flow?”

Bernick succeeded at disrupting said flow by shifting jurors’ attention from the widespread death and illness in Libby to allegations of prosecutorial misconduct and weaknesses in the government’s case. He convinced jurors that lawyers made deals with witnesses and hid evidence from the defense. By the third month of trial, even the judge was instructing jurors that the government had “violated its solemn obligation and duty.”

While in Missoula, Bernick’s dedicated work ethic was obvious. He spent his early morning hours eating a light breakfast at the DoubleTree Hotel’s Finn & Porter restaurant while poring over case documents in preparation for the day in court. The restaurant’s manager told me that Bernick was so focused on his work each morning that he barely responded to waitstaff’s inquiries, but after the the trial ended he personally thanked everyone for being so accommodating.

Over lunch breaks, the 5-foot-7, silver-tongued lawyer would sit at a table in the public space directly outside of the courtroom, sipping a bottle of diet root beer, studying documents, and scribbling marginalia on his yellow legal pads.

Filed under: Uncategorized by admin