December 22, 2006 Host: Mary Waldron Guest: Jonathan Polak
In this interview, Jonathan Polak, Director and Partner at Sommer Barnard in Indianapolis, discusses his law career and his most current and controversial case. He is representing the Goldman family in obtaining OJ Simpson's right to publicity in order to fulfill a monetary judgment that he was ordered to pay ten years ago. Simpson owes the Goldman and Brown families $33.5 million from a 1997 wrongful death civil case for the death's of his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman.
Polak also discusses other cases that he has handled as the chairman of his firm's intellectual property branch, as well as his innovative approach to law. His continuous quest to find solutions for cases that no one else has discovered keeps Polak's practice cutting edge and compelling. Duration: 00:24:19
Mary Waldron: Hello everyone. This is Mary Waldron from LawCrossing here for another podcast. Today I'm with Jonathan Polak. He is a director and shareholder at the Indiana based law firm Sommer Barnard. He's also representing the Goldman family in their pursuit to gain the right to publicity of OJ Simpson.
Let's just start at the beginning. How did you get interested in a career in law?
Jonathan Polak: When I was in middle school I thought I wanted to be a doctor. I took algebra and I realized very quickly that that was not my calling. I started debating when I was in high school, found that that was something that I was surprisingly efficient at and ended up really liking it. Had some success with it and that lead to going on to college and law school.
Mary Waldron: I know you attended Southern Methodist University School of Law, how was that experience?
Jonathan Polak: It was great. It was the same school that I went to undergrad in, and it allowed me to take advantage of some of the relationships that I had already built there at the school. I'd been involved in student government pretty heavily, and my senior year I was student body president. And that gave me a real good platform to continue on in some of those things and participate in those things. I knew a lot of the faculty; I knew a lot of the professors and those things. So, that was very advantageous I think.
Mary Waldron: I know you said you were involved in student government. Were you involved in many clubs and journals and such?
Jonathan Polak: I was the — I think I was a — I had some position on the law review. I don't remember exactly what it was, but I did participate in law review and it wasn't my favorite thing to do. But it was a great experience and I got to work with some really smart people. And I think that's what's the best thing about practicing law. You get to be around a lot of really smart people and you can learn a lot of things from them.
Mary Waldron: Yeah, and going with that, who was the most influential professors or faculty that you met over the course of your years there?
Jonathan Polak: Wow, that's a good question.
Mary Waldron: Cause you were there for a while.
Jonathan Polak: Yeah. Certainly in undergrad, one professor, Professor Kobylka, and I think his name is spelled K-O-B-Y-L-K-A. But Professor Kobylka was a political science professor who I guess took a particular interest in me and my political ideology, which I think was probably a little different than his. But we had some real good discussions and he was just so smart about the way he analyzed issues. Even though he was not an attorney, he had a very lawyer-like approach to the way he approached civil rights issues and those types of issues where law and politics intersect. And he was really very much an inspiration to me and really allowed me an opportunity I think to focus in on some core issues in the law.
Mary Waldron: What did you — where did you go after law school?
Jonathan Polak: Right out of law school I was supposed to — I clerked at a couple of firms the summer before I graduated from law school and got an offer from both of those. But the lawyer that I was going to go work with at the firm that I chose, about a week before I was supposed to go work there, called me up and said, "Hey I'm leaving and I'm going to this other firm. Would you like to go with me?" And I said, "What firm is that?" He said it was Arter. At the time Arter Hadden Johnson & Bromberg, which was a very well respected national law firm in Dallas and it was based out of Ohio. And I said, "Great. Tell me where to be," cause he had always been very good to me. And went to go work there. I worked with him for about two years.
And then I decided to make a career change or a career move at that point and I went to go work with a firm called Calhoun & Stacy. Another firm. They were based in Dallas and they were a litigation boutique firm. I really wanted to get in and try more cases and the opportunities that presented themselves there at Calhoun & Stacy gave me the ability to go do that. And I think in the span of two and a half years I was there. Three years I was there I think I took probably a hundred and fifty to two hundred and fifty depositions. I think I tried about ten or twelve cases. And was really able to — I guess — cut my teeth on a true litigation practice.
Mary Waldron: How did that lead to your current standing at Sommer Barnard?
Jonathan Polak: Sure. My wife makes a lot of decisions for me and she — well I met her at law school down at SMU. She is a (unintelligible) and she had I think actually followed another boy down there to Dallas. That didn't go anywhere and she ended up with me. But after we got married right out of law school she decided she wanted to move back to Indiana where her family was. And that's what happened. We started thinking about moving up here when we started having a family and interviewed with a number of different firms. I came to work with one particular firm, Dann Pecar Newman & Kleiman. It's mainly a bankruptcy real estate firm and worked there for about five and a half years. But during that time I was fortunate enough to have some opportunities with their clients as well as with other clients that I was able to develop in the intellectual property area.
Really build that program up from scratch because they didn't have any IP lawyers there at the time and an opportunity came about earlier this year where Sommer Barnard a much larger firm here in Indianapolis needed someone to sort of take over and chair their intellectual property group. And they offered the position to me and that's how I ended up here. I've been here since February this year.
Mary Waldron: Is that your primary focus, the intellectual property rights?
Jonathan Polak: I would say about 70% of what I do is intellectual property litigation and consulting. Not a patent attorney but I do patent litigation, I do trademarks, I do trademark litigation, copyrights, and those types of things. But what I think I have the most fun doing is the litigation involving rights of publicity.
Mary Waldron: And I know that already you've covered some cases (unintelligible) and having to do with Marilyn Monroe, John Wayne, Duke Ellington. Can you tell me a little bit about those?
Jonathan Polak: Sure. The case we have involving Marilyn Monroe right now is pretty interesting. It's actually a series of about eight cases that are pending in New York, California and Indiana. It involves at its core, a dispute between Marilyn Monroe, the right of publicity and certain copyrights that are held by heirs of photographers that took her pictures back in the fifties and sixties. And there's been a dispute between those as to whether or not Marilyn Monroe actually has a right of publicity because of the circumstances of her death. And those issues are being litigated and it's a very interesting case.
I've also litigated on behalf of Duke Ellington and we have a case that wrapped up last year where we brought suit against Gibson Guitar Company. And what Gibson had done is they had bought the assets of Baldwin Piano Company out of bankruptcy. And then decided that it would be a good idea to make a piano called the Ellington. The Ellington was a piano that Baldwin had made back in the late eighteen nineties and they decided to resurrect that particular product in around two thousand and one. And of course that caused the Duke Ellington estate a great deal of consternation because in our view we're the only ones who could ever make an Ellington piano because Duke Ellington is just so closely associated with that instrument. And we ended up resolving that amicably but it was a very interesting case.
And I've also done a great deal of work with John Wayne. Not so much recently but several years ago where we were going and chasing down infringements of his name and likeness. We also represent John Dillinger and his great nephew is the one who is the actual client. We're trying to find licensing partners for him and also going out and pursuing right of publicity infringements.
Mary Waldron: I know right now you're working with the Goldman family on getting the thirty three point five million that OJ Simpson owes them.
Jonathan Polak: Yes.
Mary Waldron: And in doing this you're exploring the possibility of gaining his right to publicity.
Jonathan Polak: That's correct.
Mary Waldron: Can you explain some of the measures and tactics that you're going to have to go through to get to this?
Jonathan Polak: Sure. This is such a fascinating representation. I'm just so fortunate to be associated with the Goldman family because they are — they just have so much integrity. And my first involvement with them came about as a result of our idea to go after OJ's right of publicity. He has thumbed his nose at the legal system for so long. Going out and striking up deals, going out and doing signings, going out and doing autograph shows. And never really giving the Goldman's the benefit of any of that even in part. And the Goldmans were always put in the unfortunate circumstances where they would have to go chase the money.
What we came up with was the concept that rather than chasing the money after it's been paid which is really a lost cause, is taking possession of the property right that enables him to go and do these signings and get money. So, that if he goes to an autograph show and they pay him $5,000 and we have had that right of publicity transferred to us in advance. Then even if he gets paid by the tradeshow organizer, we can then go to the tradeshow organizer and say, "You know what, you paid the wrong guy. You should pay us and actually we thought the value was worth ten thousand so write us a check for ten thousand dollars." That is the basis or gist of what we filed. We went to the court and we said, "Judge, he has a long history of secreting assets away. He has a long history of not paying us. Give us the thing that he's using to go make this money so that we have a seat at the table."
We filed our motion and unfortunately the trial court did not agree with us. Her concern was and the reason why she denied our motion, was because she was afraid we were going to invade OJ Simpson's right of privacy. Now I think a credible argument can be made that he has no right of privacy at this point because he's such a public figure. He relishes in the public limelight. He does not do anything to try to protect his secrecy or his privacy. In fact he sort of welcomes people to invade that but the court I think was more concerned about the precedential effect of this. And she certainly raised questions of what happens if you're dealing with somebody who's not OJ Simpson. Who is not under public scorn like that person, but somebody who is much more favorable but just happened to have a judgment get entered against them that they can't pay.
And I certainly see the logic there but that is what we're taking up on appeal and we'll dealing with that through the California courts.
Mary Waldron: How did you get in touch with Karl Manders of Continental Enterprises Incorporated?
Jonathan Polak: Karl and I have worked together since two thousand and one I believe. And he runs a private investigation firm here in town. He's really, I think, educated me a lot on the intellectual property. He's been working in that area for so long and he's introduced me to a lot of his clients. We work together hand in hand on a lot of these representations. It actually was his idea to come up with this concept of going out and getting an assignment. A forced compelled assignment of the right of publicity.
Mary Waldron: Yeah, that's what I thought I read that...
Jonathan Polak: He is a true academic, a true intellectual and even though he is not an attorney he really likes just sitting in a room with a bunch of people who are lawyers and thinking up ways to go out and really better protect the intellectual property rights of whether they're individuals or companies.
Mary Waldron: I know in Goldman's lawsuit it says fraudulent conveyance which alleges that OJ has a shell corporation which he stashed away all his earnings from public appearances so he doesn't have to pay the Goldman's. Since the controversy with the book and the interviews, I Did It, it said that he was paid one point one million for his involvement. Have you have had any breakthroughs in finding out where this money is right now?
Jonathan Polak: Well, OJ himself gave a radio interview about three weeks ago where he said — he told us all where the money went. It went right in his pocket.
Mary Waldron: Really?
Jonathan Polak: He said it would be — and I 'm quoting him — naïve to think that he didn't get the money. But we know and we've always known that this whole scheme was set up specifically so that he could claim political cover by saying, "It went to my kids."
Mary Waldron: I was saving that for the next question. Yeah.
Jonathan Polak: Yeah. But in reality it never went to the kids or if money went to the kids, very little did. Instead it went to things that jazz him such as I'm sure he paid down his house note. I'm sure that it paid down some of his bills. He lives kind of high so he is one of those that I'm sure that spends money in great quantities and very often. It's frustrating for the Goldmans knowing that the chance of recovery there is not high from Simpson or Lorraine Brook. But in my view the real villains in that are not — certainly they're villainous in what they've done. But the people who acted in concert with them, who you would expect better from, companies like HarperCollins. Companies like Fox Broadcasting, companies like News Corp. Those companies we certainly believe acted in concert with them and in doing that I think really made not only a PR mistake, but I think probably we'll find crossed the legal line. And aided and abetted someone who we believe is a known killer to circumvent the civil judgment that the Goldmans have.
Mary Waldron: Yeah. So, do you think that — it seems to me he's taking the money like this one point one million, and spending it on what he needs to spend it on. And then his pension or rather what he's getting every month from the NFL that can't be touched so that can just go be set away. Is that what he's doing you think?
Jonathan Polak: Conventional wisdom says the pension can't be touched the same way conventional wisdom says his homestead can't be touched. But I can assure you that we are working on ways and I think we've already identified some ways to get at that.
Mary Waldron: Good.
Jonathan Polak: It's a little premature for me to disclose those things, but I think we're all going to see over the next several months some additional actions that we're taking against him to allow us to wrest those away. And regardless of whether we're successful or not, we intend to push the envelope as far as we can to see how far judges are willing to protect a killer's assets.
Mary Waldron: I know you're just a lawyer of the Goldmans but do you know the children are reacting to this, the children reacting to the book, the incident, all this?
Jonathan Polak: I only know what I read. I've never spoken to them. It's interesting cause you read one article that might be quoting OJ's lawyer. And he'll say that the kids have always known about the book, that they were totally comfortable with the book and that they were the beneficiaries of the book. Now, I find that entirely impossible to believe that the children would be okay with a book that could otherwise be titled, if I killed your mother here's how I did it.
Mary Waldron: Yeah.
Jonathan Polak: I just don't get that.
Mary Waldron: I think it's ridiculous.
Jonathan Polak: But that's their story. But you read other things and you see that it's not quite so cozy and you've got this horrible situation where these poor kids who are true victims in this entire thing. They never did anything to anybody. And there is a 911 tape that has been played quite a bit. It's Sidney Simpson who is on there clearly distraught complaining about what a jerk her dad is, he doesn't love her and he doesn't do anything for her. We've heard rumors that he's never around. He doesn't attend holidays with them. We only know what we read in the papers and only a certain percent of that probably is true. But I feel for that family, I feel for those kids and it's just a bad situation all the way around.
Mary Waldron: Yeah. I know you graduated from law school in ninety-four when this OJ trial started up. What did you think of it then and how has your perspective changed now that you're working with the Goldman family?
Jonathan Polak: I have to pinch myself sometimes cause I remember as I would go to class in the morning or in the afternoon, right there in the middle of the law school library in the entrance, there was a television that they'd set up specifically. And they just played the OJ trial all day long.
Mary Waldron: Yeah, everywhere. I was little and I still remember that just being on all the time.
Jonathan Polak: Yeah. I remember walking through and you'd sit there and you watch a little bit then you go to class. The parts that you'd missed you read the paper, you do whatever. I don't know that it was necessarily a hot topic that we just sat around and talked about all the time. But it certainly was a spectacle during the time. And then when the criminal verdict came down, I certainly was shocked. I think the rest of us at the school who followed the trial even remotely closely, were shocked. Because certainly conventional wisdom was that he was guilty as sin.
Mary Waldron: Yeah.
Jonathan Polak: And through some strange machination of justice or injustice the verdict went in the other direction.
Mary Waldron: Yeah.
Jonathan Polak: But even to this day because of my involvement with the Goldman family, I get emails all the time from people telling me that what I'm doing is wrong.
Mary Waldron: Really?
Jonathan Polak: Or what I'm doing is improper. Usually mixed in with a few expletives here and there. But telling me that he was found not guilty and people should just let him be. But that completely ignores the fact that a jury of his peers found in the civil court by a burden of proof that was just slightly lower than the criminal burden of proof. Cause they had to prove it by clear and convincing evidence. The jury in that case sure found that he was responsible and in that case I don't know that there were as many racial overtones and underpinnings as what unfortunately were taking place in the criminal case. And I think you also had just a totally different judicial environment.
Mary Waldron: And I read somewhere that OJ publicly stated that he's not going to pay the ordered payment to the Goldman family at all. Period.
Jonathan Polak: He said he'd rather — if paying the Goldman family meant he had to work he would not work.
Mary Waldron: That's, yeah. I think I read that somewhere too.
Jonathan Polak: He was quoted on the golf course as he was getting out of a golf cart.
Mary Waldron: It's been almost ten years since that civil suit.
Jonathan Polak: Yeah.
Mary Waldron: How long can someone get away with something like that?
Jonathan Polak: People avoid justice all the time unfortunately and it's up to judgment creditors like the Goldmans to be diligent. And people can say what they want to say about the Goldmans but they certainly can't say that they've not been diligent in their pursuit, at least in a public way, of OJ Simpson. Keeping him in the public eye. He will whether he was ever put in an actual jail cell or not, he will remain in a virtual jail cell.
Mary Waldron: Yeah.
Jonathan Polak: As long at the Goldmans have anything to say about it and certainly as long as I am their attorney. And we are going to continue to tighten our grip around him and his assets. And make that jail cell smaller and smaller and smaller using legitimate legal procedures that are available to us.
Mary Waldron: In terms of the right to publicity, what if he just doesn't ever go out again and publicize himself? If you gain the right to publicity could he just sit around and not do anything about it?
Jonathan Polak: In my view the Goldmans are in the perfect position because we get victory either way. If he continues to go out and have public appearances and the like, we will be taking action that will allow us to capture those funds. So in that sense we'll be financially victorious. But if he never goes out and appears publicly again, if he stays in the virtual jail cell that we put him in, then we will at minimum have the moral victory of putting him in there and being the pariah that he is.
Mary Waldron: That is true. And so changing topics totally, this is getting to the end of the interview. What type of advice can you offer to law students? That's our primary audience here law students and younger professionals. What kind of advice can you offer to them to get to a career like yours some day?
Jonathan Polak: Sure. I don't know if I'd wish my career on anybody. I work all the time. To the law students of today and the future, my only advice would be to stay creative about the way that you approach clients' problems. When everyone else is telling you no you can't do that, there's always a way to find a way to do it. You just got to be creative, you got to be aggressive and you got to find that path because that path is out there. It may be a long path, it maybe a circuitous path, but it's out there. You just got to be strategic and you got to be smart and you got to be thoughtful about the way you approach it.
Mary Waldron: That's some good advice. Is that (unintelligible)?
Jonathan Polak: No. That's certainly how I approach my practice because — and whether it's a simple bank case or someone's personal injury or it's the most complicated case you've got, it's real easy to fall into tried and true practices.
Mary Waldron: Yeah.
Jonathan Polak: It's real easy to do the mundane and the ordinary. But what I think makes lawyering fun, if there is such a thing, is to do things that — is to go places no one else has gone yet, to find ways to do things that no one else has tried and then to be successful at it. Because then you're making law and you're pushing the envelope and that stuff can be really, really fun.
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