Brian O'Neill, one of the country's most accomplished litigators, talks with LawCrossing about his involvement with the Exxon Valdez oil spill trial and the state of the legal industry.
Brian O'Neill is one of the country's most accomplished litigators.
If you read Brian O'Neill's vitae, one of the first things you notice is a considerable work ethic, and the ample rewards from that work ethic. After a long list of tried cases, you'll come to the accolades and awards-also lengthy. If you talk with Brian O'Neill, what you pick up is passion. Not just passion for his cases, but for family, fishermen, the outdoors, and the practice of law.
As a kid, Brian O'Neill moved around a lot. His father was an officer in the U.S. Army, so he grew up all over the world. He followed in his father's Army footsteps by attending West Point, where he graduated in 1969. He was a field artillery officer for a couple of years in Europe and on Crete, took a leave of absence to attend law school at the University of Michigan, and graduated first in his class, U.S. Army JAG school in 1974. He returned to the Army and worked in the Pentagon's General Counsel's office for three years. It was there he first started working on environmental issues, trying cases involving environmental issues surrounding army base closures.
In 1977, he moved to Minneapolis where he joined the law firm he's been practicing at ever since: Faegre & Benson, LLP.
O'Neill doesn't think of himself as an environmental lawyer. "I'm a trial lawyer," he declares. Considering the long list of tried cases on his vitae it's easy to see why. Best known for the Exxon Valdez oil spill trial, he's had plenty of other successes. And he plays both sides of an increasingly polarized fence: he has been and continues to be a plaintiff's and defendant's attorney.
"My practice," O'Neill says, "has always been a general trial practice. I'm not a specialist in anything. I try any kind of case from copyright cases to criminal cases to patent cases to environmental cases to business cases. I do both plaintiff's and defendant's work-about half and half. And I have resisted the move to specialize."
These days, most legal professionals suggest specializing, but O'Neill's refusal to do so hasn't gone unrewarded. Along with the numerous, varied and interesting cases he's tried over the years, he's also garnered a long list of awards. In 1995, the Trial Lawyers for Public Justice declared him Trial Lawyer of the Year. And more recently he's been appointed Regent of the prestigious American College of Trial Lawyers. Other awards include Friends of the Boundary Waters, National Life Member of the Isaak Walton League, and being listed as one of the Best Lawyers in America as a business litigator. These seemingly contradictory recognitions illustrate one of O'Neill's guiding principles on choosing to work on a case.
"The focus on it all, whether it was a trial or an appeal, was that it was pretty interesting."
Our conversation with Brian O'Neill was much the same.
Q: You are probably best known for the Exxon Valdez trial. Could you tell us about a couple of your trials we're not likely to know, and why you consider them just, or almost as important as Exxon Valdez?
A: I had a case in '79 and '80 where I represented the environmental community over restrictions on motor boats and snow mobiles in the Boundary Waters Canoe Area in Northern Minnesota. I've done that litigation since then, so it's 25 years of Boundary Waters litigation. We represent the environmental community on almost all Boundary Waters and Voyageurs Park issues.
In '85, we brought a lawsuit to stop a wolf hunting scheme in Minnesota. I've also done wolf litigation around the U.S. since the late '70s, including the reintroduction of wolves into Yellowstone Park and keeping them in the park. That was in 2000. The Farm Bureau sued the government saying they were illegally introduced. We intervened to stiffen the government's spine and there was a big, big fight over keeping them there.
At the same time I was doing those things, I did everything from a couple of securities fraud cases that were tried to juries, a railroad case, a patent infringement case over paint guns, and trade secret cases over the theft of secrets out of garbage cans. I did some early litigation over ownership rights over implantable devices: everything from breast implants to penile prostheses.
Q: What was the process involved with becoming lead counsel for the plaintiffs in the Exxon Valdez case?
A: In '89, when the Valdez ran aground, I was trying a case with regard to patent and trademark infringement of goose decoys. And I heard about the grounding.
There are a lot of ex-Minnesotans in Alaska. I talked with some friends of mine who were up there, and went up there, and there was a lot of chaos at the time, especially in the fishing community. I closed the jury argument in the patent case and left the young lawyer who was with me to take the verdict and I went up to Alaska.
We were in Kenai and Soldotna and over in Cordova some, and the oil wiped out fishing season after fishing season. It started with the March April Herring season in Prince William Sound. The oil went all the way around the Kenai Peninsula and it wiped out fishing seasons in Kodiak, Cook Inlet, [and in several other places]. The distance that the oil spread was equivalent to the distance from San Diego to Seattle. It affected all of the great salmon fisheries but one. So we undertook representation of fisherman and all of a sudden we were representing a lot of fisherman.
We were in Alaska for most of '89 to '94 or '95, and in '94 I tried the case against Exxon which took about half a year. Eighty-seven trial days. I'm certain it's the most expensive case ever tried. There were thousands of attorneys working on the trial.
We were successful, and the verdict was 5.3 billion dollars.
Q: Parts of the Exxon Valdez litigation are still under judicial review, and the full amount has never been paid? Any idea how long this case will go on?
A: They've spent maybe as much as three billion dollars cleaning it up, but they were only able to pick up about eight percent of the oil. Once the oil gets out of the boat, it's pretty grim.
Our firm, and the Davis Wright Tremaine firm in Seattle, and six or seven other firms have funded this thing for fifteen years, which is quite an ordeal. Exxon has paid us a little bit here and a little bit there, but nothing that gets close to the significance of what we've put into it. We figure the coalition of firms have put into it about 180 million dollars in time and 30 million dollars in cash. And we expect that Exxon has put more than twice that amount in the case.
The fisherman have been paid some, but not all of their losses. And a lot of them have been paid very little.
The thing they didn't count on was our persistence.
I hope in the next year and a half, they'll run out of time and run out of appeals and they'll have to pay. I see the Ninth Circuit affirming the award of four and a half billion plus interest which would be seven billion. And then I see the Supreme Court not taking the case, and then them having to pay.
Q: How has the practice of law changed since your first days litigating?
A: That is something I've been thinking a lot about. I have a general civic and a modest criminal trial practice for plaintiffs and defendants. But the culture wars have polarized the bar like they've polarized other aspects of society. Now people are plaintiff's lawyers, or defense lawyers and they tend to demonize each other.
Companies tend to hire people who are ideologically pure on issues, regardless of whether they're plaintiffs or defendants attorneys. So there's a polarization among clients and who the clients pick as lawyers, and the issue of tort reform, which is related to this whole thing. And in the last twenty years, we've lost any notion of the fact that we all do the same thing and that who you happen to represent that day isn't who you are.
It's a huge problem. People pick their friends that way. People say very ugly things about other lawyers. And in defense law firms, when there are insular pockets of plaintiff's lawyers, it results in hard feelings. It's like you're going to the wrong church. To some extent, it's related to the changing of the profession of law from a profession to a business.
Lawyers when I grew up would do plaintiffs and defendants work. And realized that the guy on the other side of the table was the reason you had a job. The polarization of the bar makes it less fun to do law.
Q: Is there some good way to address the polarization of the bar issue?
A: There are little ways to address it. I'll give you one way.
One of my responsibilities as a Regent for the American College of Trial Lawyers is to help select the best trial lawyers in the Midwest. In my time as a state chair, and then now as a regent, I have tried, and the College is trying, to make fellowship in the College more reflective of the fact that we have plaintiffs lawyers, defendants lawyers, everybody that tried cases-criminal lawyers. And make the College reflect the trial bar and then provide collegiality through the College to the trial bar. Historically, I think the College was at least viewed [as] being very defense oriented.
That's a concrete way. The other thing is I don't hide the fact that I do both plaintiffs and defendants work.
My colleagues are coming to the same realization that I am. If the College is supposed to be comprised of the best trial lawyers in America, a good portion of those are on the other side of the table. And I think there are others who are concerned about the polarization of the bar.
Q: How do you think the public's environmental perspective has evolved? For example, do you think Americans have a greater appreciation for wilderness preservation than they did fifteen years ago?
A: The pressures on wild lands and wild animals are increasing on a year by year basis. And this Administration is probably the worst with regard to being a custodian of public lands. It's almost as though they don't believe in public lands. The President comes from Texas, which really isn't a public lands state. It has very little, if any, public lands. I think in Texas there may be only one small park down on the Rio Grande, but it has no tradition at all of parks and that kind of thing.
You just see it gobbled up and gobbled up and gobbled up. If you take the Boundary Waters, for example. It's about a million acres, and there's such a demand for wild land that people are just kind of loving it to death. Which indicates that we need more wild land. Once it's gone to development, you can never get it back.
I think people are complacent.
Q: Do you have any advice for young lawyers who want to start practicing law?
A: There's more of a need now for people trying to make the world a better place than there was 30 years ago. You really do have to watch your soul. I went to law school to make the world a better place, as did most of my classmates. That was 1971, when that was a subject of great discussion. And I watched a lot of my classmates-and I don't mean to be pious-drift away from why they started the journey to begin with. You really do have to watch your soul.
Q: How about some personal details. Wife? Kids?
A: My wife's name is Ruth. And I have five kids, two still at home.
Q: What are you currently reading?
A: Homer's The Illiad. I'll be reading The Odyssey after that.
Q: Do you have any hobbies?
A: I like any game in the world. Golf, fly fishing, back country canoeing, and skiing. And spending time outdoors. Anything fun outdoors is fun to me.
Q: Where do you vacation?
A: We usually spend our winter vacations at Big Sky, skiing and snowboarding. In summer we go on one long canoe trip in Canada or Alaska.
Q: What's your biggest professional accomplishment?
A: Sticking with the Exxon Valdez case for fifteen years.
Q: What's your biggest personal accomplishment?
A: My kids, when they start making their contributions to the world.
Q: Who do you admire, and why?
A: Dave Oesting, from the Davis, Wright, Tremaine firm in Seattle, and Matt Jamin, who's a practitioner in Kodiak, Alaska. Dave and Matt and I have persisted on this thing for fifteen years without anyone ever suggesting it's a drain. You can admire people that are older than you, or admire people that are dead, but watching their enthusiasm, buoyancy and ebullience for the last fifteen years has been fun to do. And the three of us have essentially run the thing and have never, ever stopped.
We all started in our early 40s and now we're moving into our late fifties. You're taking the best part of your career both with regard to excitement and financial security and doing one thing-and that thing isn't a sure deal. So it's [taking] the golden years of your practice and committing it to a drunk driving case.
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