|Oregon State Bar Bulletin JANUARY 2008|
Bryan Gruetter "carried the corporate banner" when he represented insurance companies. Now he represents plaintiffs against insurance companies, calling it "doing God’s work."
Ken Hadley handles capital murder cases statewide. But he used to be the district attorney of Baker County.
And Robert C. "Bob" Weaver Jr. once was the face of government when he prosecuted mob-related financial crimes. Now, his pro bono work representing detainees at Guantanamo causes him to describe what his old employer is doing there as "a great threat to our system of law."
Gruetter, Hadley and Weaver are among the many lawyers who at some point in their careers decide to switch sides.
The phenomenon, which one legal career counselor says most often involves criminal and civil litigators, is neither new nor limited to Oregon: As Gruetter points out, "Clarence Darrow worked for the railroad for many years before he saw the light and starting suing railroads."
Attempts to switch sides are not always successful; the other side may be suspicious of the switch-hitter’s motives, or the former prosecutor may discover that the rainmaking aspect of private practice is not his forte. But, when it works, attorneys say that switching sides is the best way to put their old skills to new use.
Gruetter says that for him, "a light bulb came on" when he represented a plaintiff on a wrongful death case while still working primarily for insurance companies as the industry changed around him.
"I felt like I was the owner of a Beta Max store just as VCRs were coming in," he says of those changes. "I thought, ‘If I stay with this, I’m going to be out of work in my 50s.’ I can’t tell you what that one plaintiff’s case generated in fees, but it was more revenue than the previous several years — combined — of doing insurance defense. I made the decision, right then, to start my transition."
Making the Decision to Switch
Bryan Gruetter had been robbed at gunpoint while working his way through college in Portland. He knew he didn’t want to raise a family in the big city, so when he graduated from Willamette University College of Law in 1985, he accepted an offer with a two-man firm in LaGrande.
"I did everything," Gruetter says of that job. "It was a chance to find out, right away, what I liked."
Within two years, Gruetter discovered that he liked two things: insurance defense and being somewhere bigger than LaGrande.
"One of my first insurance defense cases was a critical burn injury," he recalls. "A guy with no sense of smell lit a match in his used travel trailer. It blew up and he was horribly burned and ultimately died."
"I was retained to represent the seller of the used trailer, located in Bend, so I went to Bend to do depositions. I hadn’t been in the area since I’d camped there as child."
"My pregnant wife and I fell in love with Bend. We saw a first-run movie, ate in a great restaurant. I also met some very-experienced insurance defense attorneys of that era, at the top of their game, very respected members of the bar. That probably enamored me."
So, when his wife spotted a listing in the Bulletin for an attorney at Dunn Carney’s new Bend office, Gruetter went after the job.
"That branch of Dunn Carney basically did only insurance defense," says Gruetter, "so I stepped into that practice."
Gruetter’s job was sizing up cases, typically vehicle accidents. He hired private investigators when the facts were suspicious. "Based on what we found (or didn’t find), I would give my opinion about whether to offer money and how much," he says. "We didn’t pay if we had a smoking gun. I was an evaluator first and gladiator second, and that learned skill really assisted my eventual transition to plaintiffs’ work."
Gruetter represented insurance companies almost exclusively for 15 years, 10 of them with Dunn Carney before it closed its Bend branch.
"I started getting more serious cases; deaths, burns," he says. "I was very, very successful at defending. I really loved that line of work. For a while, I really was marching to the corporate tune."
But the insurance defense industry was changing around him, with companies consolidating, moving their operations to big cities and hiring companies to audit the bills of the lawyers who represented them.
"Lots of companies were just reporting to bean counters," Gruetter says. "They were paying outside auditing creeps by how much they could write down off each bill. I was finding that I was trying more cases than any other attorney of my vintage; winning; working six to seven days a week; taking only a week’s vacation a year and still producing less revenue than the estate-planning attorney down the hall because of caps on my bill. It took all the creativity out of how I practiced law."
So, when the Oregon Association of Defense Counsel asked Gruetter to write an article for its newsletter in 1998, he entitled it "Defense Guidelines and Billing Audit Services: Growing Risks Involving Ethics and the Duty to Defend."
"I said that insurance companies seemed to hate their own defense attorneys," he says. "It got me a bit of notoriety as a rabble rouser. I got an incredible amount of response, including from other states: ‘Good for you;’ ‘Insurance defense used to be a team approach, but it’s become a corporate greed fest;’ ‘It’s difficult to make a decent living.’ I felt like a union organizer."
Two years later, Gruetter wrote a second article, this one entitled "The Changing Face of Insurance Defense: Careers in the Balance."
"I didn’t know it at the time," he reflects, "but
I was writing about my own career
When Ken Hadley graduated from Northwestern School of Law’s night school in 1967, he was being paid more at his day job as office manager for a railroad than some legal positions were offering.
He went to work for the state public defenders’ office in Salem, and then — lured by his desire to live in Eastern Oregon — started Baker County’s first public defender’s office in 1972.
He was its only attorney.
"I’d talked to clients at the pen, but trial was an all-new ballgame," he says. "I’d never selected a jury. I started Aug. 1, and had my first murder appointment within two or three weeks. I had to start learning."
After four years, Hadley went into private practice, where he did some criminal defense. "In a small town, you can’t specialize," he says.
Then he and two lawyer friends decided that Baker County’s long-term DA had overstayed his welcome. They started talking about which of them would have to give up the least to run against him.
Hadley was elected, serving two terms between 1980 and 1988.
"The PD’s (public defender’s) office had won seven or eight felonies in a row before I won (the election)," says Hadley. "The public defender said, ‘Sometimes I think I shouldn’t have supported you; I won more before.’ But we stayed friendly: the public defender, the city detective and I settled some cases over coffee."
"When I ran for DA, some police were concerned about a PD becoming the DA," he says. "Lawyers understand how you can make that change, but the public doesn’t necessarily. The police said, ‘Isn’t it true you don’t support the death penalty?’ I said, ‘Yes, but I don’t write the laws.’ I may be a stronger opponent of the death penalty now. I’ve watched what DNA has done; we now know darn well there are mistakes."
Since 1989, Hadley has handled capital and intentional murder cases all over the state as a sole practitioner.
Former federal prosecutor and Ohio native Bob Weaver admits that when he started law school, he didn’t even know that the job of assistant United States attorney existed.
Or the West.
Then he got a summer job clerking for a district attorney’s office in St. Helens, Oregon.
"I’d never been west of Chicago," says Weaver, who graduated from Notre Dame in 1975. "(The job) was a great, great experience. That’s when I began to focus on a career as a prosecutor. I was also motivated, as a lot of people of that generation were, to do public service."
Weaver started his post-graduate career as a prosecutor for the U.S. Department of Justice, trying white-collar cases for U.S. attorneys’ offices all over the country.
"These were gigantic, complex cases that take months, if not years, to investigate and months to try, the equivalent of Enron," says Weaver. "They included some mob-related financial crimes."
In 1979, Weaver joined the U.S. Attorney’s Office in Portland. He enjoyed considerable success as a prosecutor, heading the office’s criminal division and — in a move reminiscent of Al Capone’s conviction for tax evasion — convicting Oregon’s Bhagwan Shree Rajneesh of marriage fraud.
But after some14 years, the thrill was gone.
"As wonderful as that office was, many of my experiences were becoming redundant," he says. "When I was trying to decide (whether to move to private practice), I talked to Ninth Circuit Judge Edward Leavy, who was then a federal magistrate in Portland. He asked me the question: ‘Are you a better lawyer now than you were a year ago? Because you either get better or you get worse. You don’t stay the same; you have to be challenged.’ For the first time, I wasn’t sure I could answer that question yes."
So, in 1989, Weaver joined the Portland law firm of Garvey Schubert Barer, where he does a mix of white-collar criminal defense and other civil business- and tax-related litigation.
And, in 2004, he took his new role as defense attorney to extremes when he began representing two detainees at the U.S. military prison at Guantanamo, Cuba against his former employer, the U.S. government.
Getting a Job on the Other Side
Linda Green Pierce, the president of Northwest Legal Search, Inc., in Portland, has done lawyer recruitment for 20 years.
Her job includes informal career coaching and reviewing "thousands and thousands of resumes," including some from plaintiffs’ attorneys who want to switch to the defense bar.
Green Pierce cautions them that "There are some things that come with that."
"You’ve been after these people, suing them, and now you want to be part of them, want to be part of the defense club," she points out. "It’s hard to do unless you do it early; you get labeled."
Green Pierce says that whether someone who knows both sides of the game is valuable to an employer "depends on the job."
"If somebody’s doing a tax practice inside a private firm and then moves to a firm doing non-tax, everybody knows her value; she can look at a corporate transaction from a tax point of view," she says. "The plaintiff-to-defense (switch) is a little more fraught with suspicion."
Elizabeth Davis, assistant dean for career services and alumni relations at Lewis & Clark Law School, says that when she works with alumni job-seekers, "Sometimes the issue is as basic as, ‘I know I want to make a change; what else is out there that I realistically could pursue?’ The obvious answer is: the other side."
"Usually there are specific things about his practice area or environment that cause an attorney to want to change," Davis continues. "Generally he’s burned out on the cycle of litigation or on his practice area — seeing the things people do to each other. He wants to help people with issues, but not as dramatic or heart-rending. Or his personality is not a good fit with the culture of his office. It can be a great firm, but may not be a good fit for that particular person."
Davis says she hasn’t encountered concerns that switching sides will require switching work cultures and belief systems as well.
"Because they’ve been working in the system, they have a fairly good sense of where the challenges are (on the other side)," she says of the alumni she helps. "They really go into it with open eyes. Often, by the time they get to us, they’ve had quiet conversations with the other side about switching."
Davis says that what she does hear are concerns about how to make employers believe they are sincerely interested in working for the other side.
Davis recommends that attorneys raise this issue themselves, preferably via informal informational interviews. There, they can explain that they feel they would have a better philosophical alignment on the other side and want to work where they can do the most good.
"Sometimes just being able to talk it through (with a prospective employer) — before they ever see a resume and cover letter — can help a lot," she says.
Davis also suggests asking colleagues to make contacts on the attorney’s behalf, explaining to prospective employers that they know the person is really committed to a transition and that they highly recommend him. "That can be very effective," says Davis. "They can say things that the attorney may not be able to without sounding arrogant."
But, Davis cautions, in the end, "If you can’t find a way to get a foot in the door, you’re going to have a really hard time getting a job at that office."
"I think there are some prosecutors’ officers
that are unlikely to hire someone who’s been doing criminal defense," she
says. "But not all. Some civil plaintiffs’ firms are suspicious
of hiring someone who’s done civil defense; I talked to someone
just last week who is having a really hard time transitioning for that
reason. But there are other employers who are going to say, ‘That’s
great.’ It sometimes depends on what the office’s past
history of success has been with hiring people who’ve worked
Jane Steckbeck, interim assistant dean and director for career services at the University of Oregon School of Law, recommends that prospective job switchers read Deborah Arron’s What Can You Do With a Law Degree? A Lawyer’s Guide to Career Alternatives Inside, Outside & Around the Law.
Steckbeck says that attorneys should be reassured that even if a job switch doesn’t work out, they are gathering transferable skills along the way, citing the example of someone who graduated from law school in 1988, and — almost 20 years later — finally found "a career he loves" combining law with other interests. "It’s not uncommon for someone to hit their stride after trying a variety of practice areas," she says reassuringly.
New Points of View
Former prosecutor Weaver says he was well aware that private practice wasn’t a sure thing when he was deciding to leave the U.S. Attorney’s Office.
"I had serious misgivings about whether I could make it in private practice," he acknowledges. "The FBI really has only one law firm to go to. Attracting clients is far more competitive (in private practice)."
And Gruetter says that when he decided to switch from representing insurance companies to representing plaintiffs, he discovered that "all the local attorneys in Bend still thought of me as a corporate lackey."
"I had to do marketing to re-invent myself," he says. "I had always been against that. It helped me get rid of my snobbery against advertising."
One thing that seems to facilitate a successful switch is strong familiarity with what the other side does.
Richard A. Lee represented plaintiffs on workers’ compensation and personal injury cases in Eugene for two years before joining Bodyfelt, Mount, Stroup & Chamberlain in Portland. He now does mostly insurance defense.
"It was a switch to the other side of the street, but a switch I understood," says Lee. "In Eugene, I primarily worked for Lyle Velure (now a circuit court judge), who had done civil defense work for 20 years before switching to plaintiffs’ work. The firm’s main paralegal — for lack of a better word — was a former insurance executive with Travelers Insurance. So I was doing plaintiffs’ work, but for fellows who were incredibly well versed in the defense side because they’d done it for 20 years."
And Hadley, the public defender-turned DA-turned capital case defender, says his pre-law school experience working as a clerk in a judge advocate’s office, where attorneys work both sides, served him well.
"I never thought about being a lawyer as one (side) or the other;" he says. "Any good lawyer should be able to prosecute and turn around and defend. A few on each side see one side as evil. I never saw it that way. If everybody does his best and is honest and follows the rules, it’s good for the system."
The successful switch-hitter can use his knowledge of how the other side works not only to ease his own transition, but to benefit his employer as well.
"You’re not going to convince someone with money to give it to you unless you show them something," says Lee. "Some people want to hide the ball. I came from a place where the attitude was, ‘They have the money, we want the money, let’s give them what they need.’"
Gruetter echoes this thought.
Gruetter says that when he represented insurers, he discovered that he could get jurors to award the plaintiff zero if he could catch him in a single lie or exaggeration.
"A little white lie equals a little golden nugget to an insurance defense lawyer," he says. "And because that’s how I did win cases, I learned to now tell every single plaintiff that honesty and lack of exaggeration are critical to a good result with insurance companies."
John Gilroy, a former Washington County deputy district attorney who now does criminal defense and plaintiffs’ personal injury for Gilroy & Napoli in Lake Oswego, says that switching sides "can only make you a better attorney. There’s no down side. Having been a prosecutor helps me prepare cases, anticipate offers, etc. It would have been helpful to have had this kind of experience while I was a deputy DA, and vice versa."
Switching sides can result not only in a new job, but a new appreciation of what both sides do.
Gruetter says that while he was "never white and black completely, I did have some thoughts that some plaintiffs’ attorneys were ambulance chasers."
"I made the transition because the market changed,
and lost all my defense-oriented snobbery in the process," he
says. "I really carried that corporate banner pretty high, had
that righteous indignation. I could win case after case and feel superior,
whereas I now realize my grandmother probably could have won many of
them. The really good cases were
Gilroy, who was a prosecutor for more than four years, says he "probably didn’t appreciate how difficult (defense attorneys’) jobs are" until he became one himself. "Clients," he says. "Clients’ families; jobs; jobs to lose."
Gilroy says that when he was a prosecutor, he "respected those (defense attorneys) who worked hard to fairly advocate for their clients; those who treated me with civility; those who picked their battles."
"It can go both ways," he points out. "I knew prosecutors who were that way, too; who had battles where battles were meant to be fought, not just for the sake of fighting."
Now, from the other side, Gilroy says he has "nothing but respect for prosecutors."
"It’s a very noble profession and, for many people, a great career," he says. "If I wasn’t in private practice, I think I’d be a prosecutor. I think better prosecutors listen and see a defendant’s good points, but people are people. Some listen better than others. A lot of it comes from the person who is making the point and your relationship with that person. When I was a prosecutor, I at least thought of myself as somebody who would listen. But I encountered defense attorneys who didn’t see things the way I did."
Weaver also says he has learned that there are different ways of seeing things.
For example, says Weaver, "It can be hard for a prosecutor to say no. The easiest thing is to say ‘yes’ to law enforcement that has lots of man hours and emotion into a case, in part because (the law enforcement) agency is expecting prosecution, but maybe because the prosecutor can’t get his head around the idea that the conduct wasn’t done with criminal intent. It was hard for me to see that when I was a prosecutor. When I see the other side, especially with corporate behavior, I now can see that that’s possible."
That said, Weaver says his view of his old office — against which he tries most of his criminal cases — is very positive. "Its lawyers are outstanding in their dedication to the office and the mission of the office," he says. "Their judgment in most cases is very good."
Perhaps more surprisingly, Weaver also has high praise for the federal prosecutors and members of the Office of the Judge Advocate General (JAG) who are involved in the imprisonment of "uncharged military combatants" imprisoned at Guantanamo, two of whom he is representing pro bono.
"These are cases I feel passionate about," says Weaver, noting that unlike the tiny percentage of Guantanamo inmates who actually have been charged with war crimes, his clients and the other uncharged enemy combatants have virtually no legal rights.
It’s a great threat to our system of law on a global level, and very short-sighted, because it will be used against our own side when they are captured," he says.
But, he says, "It (Guantanamo) hasn’t changed
my view of prosecutors, because the decisions that led to Guantanamo
were not made by experienced, frontline justice lawyers. The heroes
in Guantanamo, in my view, are the career JAG officers
who have put their careers at risk by taking up the cases of detainees. They have become persona non grata and have seen their careers suffer."
The Grass is Greener
In the end, attorneys who have successfully weathered a career switch say they not only have found new ways to use old skills, but other tangible benefits as well.
Richard Lee says that one advantage of switching from representing plaintiffs to insurance defense is that he feels less pressure.
"When I did plaintiffs’ work, except for some ‘serial’ plaintiffs, that lawsuit was the only lawsuit in their life," he points out. "It affected them in a very personal way. On the defense side, the insurer-client has had hundreds, if not thousands, of lawsuits; each case is not a life-or-death case. There are exceptions; I’ve represented some nice people, who have never done anything wrong, on environmental regulation cases, and if we lose, it’s the company. I’ve lost sleep over those. But for the most part, there’s less pressure."
Gruetter, who now does 100 percent plaintiffs’ personal injury and wrongful death, says his revenues "have doubled and tripled" since he switched sides.
"I love it!" says Gruetter, who opened his own firm in Bend on Dec. 3, 2007. "My days now are spent comforting salt-of-the-earth people and helping them through tough times. I can do cases the way I think they need to be worked up. I got my creativity back. I can’t imagine being anything other than plaintiff’s lawyer. I really feel like I’m doing God’s work."
ABOUT THE AUTHOR
Janine Robben has been a member of the bar since 1980. She is a frequent contributor to the Bulletin.
© 2008 Janine Robben