Beth Graham on Building a Mass Tort Powerhouse

This transcript of Raising the Bar with RebuttalPR was generated using AI transcription and lightly edited for readability. It may contain errors, and speaker labels are approximate. The audio recording is the authoritative version.

Welcome to Raising the Bar with RebuttalPR, the podcast where we elevate the stories of the plaintiff's bar and dive into the key trends shaping the civil justice system today. I'm your host, Ray DeLorenzi, and in each episode, we'll bring you insightful interviews with leading attorneys, expert perspectives on current legal events, and in-depth discussions on the issues that matter most. Now, let's jump in.

I think tenacity and having the resources and understanding how difficult it is goes a long way. And the law is not easy. Federal courts are not easy on plaintiffs' lawyers, and it's getting more and more difficult. I credit my team now. I've got this incredible team working with me. I've got some really talented younger partners and associates and paralegals and staff, and I've been really fortunate that way.

Ray: Hey everyone, welcome to a new episode of Raising the Bar with RebuttalPR. I'm your host, Ray DeLorenzi, and today I am joined by Beth Graham, who's with Grant & Eisenhofer. She leads their complex and mass tort litigation practice, and she also is a member of the firm's executive committee. Beth, thanks so much for joining us today.

Beth: Good morning, and thank you for having me, Ray.

Ray: So, Beth, you know, I think as we talked before we started recording, I always like to figure out what makes people tick. And you've worked on some really big cases. But not unlike some other, I think, really esteemed plaintiffs' lawyers, particularly in the mass tort and complex litigation space, you also were on the defense side earlier in your career. You say that almost sheepishly. So tell me, why did you even become a lawyer in the first place?

Beth: Why did I become a lawyer? That's an excellent question. And if I'm being completely honest, it's because I wasn't really sure what else to do with an English degree in New York City. But kidding aside, I was always fascinated by the law and by advocating for people who maybe couldn't articulate things in the same manner, or didn't have the resources available to make their case. Ever since I was a kid, my parents would tell you that I was always arguing, and usually it was not on my own behalf, but on behalf of my siblings or somebody else. And so I just was fascinated with the law when I was in undergrad and decided to go to law school and just take a run at it. And I was the first person in my family to go to college. I was obviously the first person then to go to law school. And it was just really important to me to see if it was something that I could do, and when I got out of school, I knew it was for me.

Ray: So I find it interesting, particularly when someone is first in their family to go to college or go to law school, in your case, both. Was it ever, like at a young age, did anyone in your family say, oh, you're good at arguing, you should be a lawyer? Was it even in the scope of what you could become?

Beth: Um, not really, you know, but I was strong-willed even as a child, and I just thought, I'm going to do this. And it was interesting because I grew up in a neighborhood where everybody was a cop or a fireman or a nurse or a teacher, and that was my world. And I just, from a pretty young age, said, no, I'm going to be a lawyer. This is what I'm going to do. And I just kind of did it. And I was really lucky. I don't know in hindsight if it was skill, determination, grit, or a combination of that, but definitely a lot of luck.

Ray: When you go to law school, you become a lawyer, and especially for people at a younger age, I always feel like they have an idea of what a lawyer is, and then they have kind of a rude awakening at some point. What was that for you?

Beth: Yeah, it was a very rude awakening. So I graduated law school. I was 24 when I started practicing, which is shocking to me now. I thought I knew everything because I took all these important classes and I wrote and I clerked for a judge and I did trial advocacy, and then I got to my first job, which was at a big defense firm, and I couldn't find my way around anything, and it was so intimidating. And I just remember thinking, oh my God, the secretaries know so much more than I do about the law. What am I doing here? So it was definitely from day one kind of a humbling experience, but I was fortunate. I had some really good mentors, so pretty early on in my career, they just kind of threw me into the deep end, and so I kind of learned from there. But it was definitely intimidating at first. But I just thought, well, I can't quit like day one. And then day one became day 365, and all of a sudden, I was a second year. So yeah, they don't teach you what you really need to know in law school all the time.

Ray: Tell me about working at a defense firm and that experience.

Beth: Yeah. So, again, I didn't really know coming out of law school what to do because I didn't really have role models other than the ones I'd met in law school and my professors and the like. And back then, in New York City, everything was kind of geared towards big law, big law, big law. And they were the ones who came and recruited on campus. So naturally, I wound up at a big defense firm and found my way to California, which was in hindsight a blessing because I think I got a lot more experience going to big law in California at that point than I would have if I'd stayed in New York. I'd probably still be reviewing documents. But it was intense. It was all the things that you read about, billable hours, weekends, nights, partners who weren't the warmest and fuzziest, all of that. But it was a great learning experience for me. I got to see really great lawyers on the defense side and on the plaintiff side, but watching from the other side of the table.

So I remember being a young associate, and as I said, I had some really great mentors who would take me to court with them, and they would take me to these high-level meetings. And so I'd be sitting there in a meeting with, at that time, like Elizabeth Cabraser across the table, or Stan Chesley, or Arnie Levin, or these guys who were like, wow, I've read about them in cases. And so it was really something. But I didn't love it. I mean, once I realized what I was really doing. In the beginning, it was just, oh, I'm writing these memos and I'm writing these high-level briefs and I'm doing this and I'm doing that, I'm going to trial and I'm taking depositions. But when the light bulb went off, which was probably like three or four years into my career, and I realized I was defending corporations who, sadly in a lot of situations, had done the wrong thing, I just didn't love it.

But I remember this moment when I had a case against a plaintiff's firm, just kind of a single solo practitioner, a single-event plaintiff's firm in California. And it was a drug case, and I knew that there was a problem with our label. And I figured this guy's going to figure this out. And I had authority to settle the case for a pretty decent amount of money. And he never figured it out. And I was so upset on behalf of his client. And I realized that that's where my heart was, and I should be on the other side of the table, because I thought I could do a good job at this, and I know what I'm doing. So yeah, I kind of more quickly gravitated towards the plaintiff's side of the bar.

Ray: So you're like a third or fourth year at a big defense firm, and the path is sort of paved in many ways for folks there. You talked about mentors before. Who did you reach out to, and what were those conversations like, being like, yeah, I'm done with this track and I'm ready to pivot?

Beth: Yeah. So I realized in years three or four, but I think it took me until my sixth year to really get the nerve up to switch sides, because I started to talk to people who were on the other side. And I always kind of gravitated towards the plaintiff's side. When I'd be in a deposition, I didn't want to go out with the other defense lawyers who were there. I'd be hanging out with the plaintiff's lawyer. And I realized, it's a contingent fee practice, and it's not like lockstep advancement, and it's not guaranteed bonuses if you work a certain number of hours. It's much more about taking risks. And so it took me a little bit, a couple years after I realized what I wanted to do, to get the nerve up to do it.

And then I sent my resume, just cold, to at the time the biggest and best plaintiff's firm, still the biggest and best plaintiff's firm I think, in San Francisco, homegrown in San Francisco, Lieff Cabraser. I just sent my resume to Elizabeth. And unfortunately, we had so many conflicts because I'd worked on, I was in active litigation against her firm in like three or four cases. And one of the partners for whom I worked advised the client not to waive the conflicts, so I couldn't go work there. But she was kind enough, when she was on a plane, she handed my resume to another trial lawyer who was working on a case with her. They were coming back from some meeting. His name is Dick Alexander, and he was a fierce trial lawyer at the time in San Jose, California, and he reached out to me and said, I'm trying to build this class and mass practice. I'm a single-event practitioner. What do you think? And I interviewed, and the rest is kind of history.

I went to work for him. And I talked to people along the way. I talked to a lot of the big-name lawyers at the time about how to do certain things. And I was, again, really fortunate to get involved in a really big case right off the bat. I found this client, or the client found me, and I wound up in my first MDL as a plaintiff's attorney about six months into my practice as a plaintiff's attorney. So I just asked questions. I just asked the other plaintiff's attorneys who were on the executive committee with me, like, how do you do this? And I learned a lot. As I said, I got to watch a lot of really well-regarded plaintiffs' firms in the Bay Area. Cotchett was out here, and Allen Ruby, and obviously Dick, and Elizabeth. It was a really great learning experience for me, kind of just diving into it.

Ray: So you said about six months into your life as a plaintiff's lawyer, you're on an MDL. And MDLs sometimes get some criticism, let's put aside fair or not, about how hard it is for newcomers to break into those. And also, did folks look at you askance? Weren't you on the other side of the table six months ago? What was that experience like?

Beth: Yeah, it was hard. Not welcoming, I would say, at first. So I had filed a case, it was a dealership franchise dispute. We represented a car dealer, and I filed it in state court in San Jose, and it got removed to federal court. And the next thing I know, it was shipped across the country and into an MDL in Baltimore, Maryland, ironically. And the good news was I had the client. At the time, I had filed it as a class action, and my lead representative was a guy named Colonel Frank Borman, who had been to the moon and had run an airline, but also happened to own a number of car dealer franchises. And he was my client. I had answered the phone when his local counsel called at 8:00 on a Friday asking some questions about the case I had filed in San Jose, and he became my client. So it was difficult to push me aside because he was my guy, and everybody agreed he was the best possible class representative for a class of car dealers, because he was, you know, I've been to the moon, honor and country, I've run businesses. It was a no-brainer.

And then I just worked my ass off. Can I say that on a podcast?

Ray: Absolutely. Yes.

Beth: I worked my ass off. And so I think eventually the fellow members of the executive committee realized that I knew what I was doing. And I wound up forming a cordial, professional relationship with the in-house counsel for the defendant, which in that case was American Honda. And so we would see each other from time and again in a deposition or in court. And I was the person who, because they kind of begrudgingly accepted me into the MDL fold. I was young and I was the only woman at the time. And a lot of the fellow attorneys were car dealer attorneys. And so I was definitely a little bit handicapped in certain regards, in how they looked at me. But because of this relationship, and because I was tasked with figuring out the damage model, because it was a really complicated case, it had to do with bribery and corruption within the company. The executives were taking bribes from a certain cadre of dealers, and the other dealers like my client were affected because there were a limited number of Hondas at the time coming into the country. So it was this complicated allocation system, and I wound up being tasked with talking to guys with the big computers up at MIT about how we were going to unravel this whole thing on a national basis. And that became the model for settlement.

And so, literally, you read these stories, but it's true. Coming back from a deposition in Boston, I met with the assistant general counsel and his outside local counsel, not the lead trial counsel, but another outside local. And on the back of a napkin, we started to sketch out what this would look like if you guys wanted to resolve this case. But it was after several years and a second mortgage on my condo and a lot of anti-acid tablets under my desk. So yeah, I think my defense skills kind of came in handy because I wasn't looking at it like, this is the enemy, and it's to the death. It was like, all right, let's try to figure out a business solution. Here's what I think the number is. Tell me what you, you guys have big computers, what do you think the number is?

Ray: Do you think that your experience in big law, and I'm not sure if it's worn off at this point in your career, but do you feel like at least earlier on it gave you some credibility with the defense counsel in cases? Like, oh, you know what, she knows what makes us tick? Or were they like, yeah, you're the enemy at this point, so whatever?

Beth: I think it's a mix. I mean, there are certain lawyers who I've come up against in the last decade who definitely look at me like I'm the enemy and I'm just another plaintiff's lawyer. And then there are certain ones who I think appreciate that I understand that they have a client and they have a board of directors and they have shareholders and they have concerns about the value of their company. And I understand business solutions. So it's not just, I'm going to kick your ass in trial. It's like, I will if I have to, but I think I probably have gotten a little bit of credibility with just coming in the door. There's, okay, maybe we'll give her a shot, as opposed to, no, she just doesn't understand and is just the enemy. So I think it definitely helped. I don't know if it's worn off because I've kind of continued to try to use that as a model for resolution, everything I learned when I was on the defense side, and try to capitalize on that and learn even more from talking to my adversaries, whether it's in a courtroom or in a mediation room.

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Ray: Again, we're joined by Beth Graham, who is a principal at Grant & Eisenhofer and leads their mass tort and complex litigation practice. Beth, let's pivot to joining Grant & Eisenhofer and what drove that decision and that process as part of your next stage in your career.

Beth: Yeah, so as I said, I had started with a pretty prominent plaintiff's trial firm, and then one of the partners and I branched out and started our own firm. And then, after we resolved that case and another coordinated case involving hip implants, my partner decided, he was about 12 years older than me, he decided he was ready to retire and do something else. And I really didn't want to run a firm by myself. So I took a couple of years and tried to figure out. I mean, we continued to wind down the firm. And as we were doing it, I was trying to decide what I wanted to do. If I wanted to bring more people on as partners, or if I wanted to do something completely different, like mediation, or if I wanted to join another firm.

And I had been friends or acquaintances with Jay Eisenhofer for a few years by then. We'd met kind of fundraising for different political candidates. And he was always asking me, how do I build this thing? He wanted a mass tort, class action, tort department. They were already wildly successful in securities and antitrust and commercial litigation. And he'd been talking to the mass tort lawyers with whom he was friends, and he wanted to build this thing. And I kept telling him how he should do it. And he was frustrated because he's telling me about it, well, I have these six hip cases. I'm like, you're missing the mass part of the tort. You need more than that.

And so we were at a Yankees game one night and he said, why don't you join us? And I said, I don't want to move to New York or Delaware. And he said, we'll set you up in a San Francisco office. We just started talking, and I thought this is the perfect opportunity to build a firm again, but within a firm, and have the resources of a firm. So it wasn't quite as daunting a task as just taking what had been my own firm of 13 people and trying to find a new partner to work with. It was kind of transporting it over. So it was an easy decision. And I thought, well, we'll see what happens here. I'll build the firm within a firm, which is what I wound up doing. So we started with me and another associate and a paralegal, and now there's, I think, 42 people in my department.

Ray: So you've been wildly successful in terms of building that. And there's a lot out there now, I think lawyers are like, you know what, we're going to bolt on a mass tort practice, we're just going to get into this, and maybe also not appreciating the challenges with doing that. What challenges do you see, and why do you think you've had that success in building that practice?

Beth: Well, I have to give credit to my partners at Grant & Eisenhofer, because a lot of the success came from them giving me the resources to invest, both human resources and monetary resources. Because building a mass tort practice is not only incredibly complicated because there are so many moving parts, you know, it's not just the law, right? It's not just waiting for clients, 6,000 of them, to knock on your door. You have to do a lot of marketing, you have to do a lot of intake and interviews and client relationships. And so there's a lot of moving parts, and they really gave me the tools and the resources and the runway to get it off the ground, which is fantastic.

And you have to have a stomach for it because, you're right, a lot of people think, okay, I'll build a mass tort department, how hard is this? And actually, one of my partners, Stuart Grant, he's retired now, said, how hard can this be? I see all these guys on TV, you just get clients and then you settle, right? It's like, no, I wish it were that easy. And so we had, thankfully, some early successes with cases I had picked to get involved in in the beginning. We had some not so great success. We had failures. I was co-lead in one of my first MDLs at Grant & Eisenhofer, where I was appointed co-lead, and wound up, during the course of the case, the Supreme Court came out with the Albrecht decision, and all of a sudden we were preempted out, and the whole MDL was over. We went from talking about how we were going to pick a jury during COVID to a summary judgment opinion that got rid of all the cases.

So I think tenacity and having the resources and really understanding how difficult it is goes a long way. The law is not easy. Federal courts are not easy on plaintiffs' lawyers, and it's getting more and more difficult. So I credit my team now. I've got this incredible team working with me. I've got some really talented younger partners and associates and paralegals and staff. And so I've been really fortunate that way.

Ray: So you have a pretty varied caseload. And also, when you look at your successes, you've done drug and device work, done environmental work. How do you decide this is something where we can have an impact or we can add value? How do you pick those?

Beth: Yeah, that's a good question. You know, we started with drug and device because my experience, even from when I was a defense attorney with the pharmaceutical industry, taught me that, absent tort law, they're not going to stay in line, right? We are the guardian at the gate, I believe, when it comes to devices and drugs, because if you think about the system, you as a patient go to your doctor and say something happened as a result of this drug or device. The doctor then reports it to the manufacturer. And it's the manufacturer who's making a profit on the drug or device whose responsibility, under our crazy system, it is to go to the FDA. And then the FDA decides how and when to act. So I always gravitated towards those cases because it seemed like the playing field wasn't exactly level.

But more recently, we've expanded the group to include single-event catastrophic cases, which was kind of how I was raised up, so to speak. And I think those are important cases because, one, you've just got one individual taking on usually a large corporation, and two, it trains my lawyers to think about a single case, a single plaintiff. So I like those cases. And if it's something like product liability that's in my wheelhouse that I understand, I'll take those on. We've kind of gravitated a little bit towards youth detention center cases and sexual assault cases, clergy cases in the last five years, because we saw a need that wasn't really being met, unfortunately. There's a lot of institutional abuse that's being uncovered, and we really felt as a firm...

I always kind of make the decision in collaboration with my junior partners and with Jay Eisenhofer, who's the managing partner at the firm. And we look at where we can make a difference and how we can change the law and how we can advance the legislation and how we can maybe just take a little chunk out of preemption law or whatever it might be, and then how we can help the clients. There's some cases, I won't take on a case where I don't understand. I mean, every day I have to learn something new about a drug or a device or an environmental toxin, that's easy. But if I don't understand the legal principles, it's just not something I get involved with. But then I have to believe in the human story. Like at some point, if you're telling it to the jury, what is your client's story? And it has to be something that's appealing to me.

And sometimes it's just putting my finger in there and going, okay, what do you think? I don't know, and you just kind of do an early, in-my-office focus group. Like, what do you think about this case? What would you say to this? And we spend a long time vetting our cases at the front end. I mean, weeks, sometimes months. And I know who in my firm is going to say no to everything, and I go to them because they're a good sounding board, because they're like, oh, this isn't going to work, and here's the 20 reasons why. And then I know the people who are like, oh, that's a great story, let's go get them. And I kind of balance it. And I look at the flaws in the case. If I was a defense lawyer, how would I attack this case?

Ray: So I know you still hopefully have quite a few years left in your career, but at this point, if you could pick the case that for you is the one you really want to be known for, what is that case to you?

Beth: Oh, God. I don't know. I mean, I love doing the advocacy for children because it's a natural extension of representing victims of corporate abuse to now representing survivors of personal assaults. I don't know what the perfect case would be. I haven't found one yet, so it's hard to conjure what it might be. But I also love keeping my hand in a little bit of everything. I like the environmental, but then, as you know, I just finished the big environmental case, and I'm like, no más, I want to move on to something else. And right now, I'm spending most of my time doing cases in Maryland against the Archdiocese of Washington, and up in New Hampshire, because of institutional abuse of childhood survivor cases. So I don't know what the perfect case would be. I don't know if there is a perfect case for me, to be honest.

Ray: You talked about, and I keep going back to the mentor theme because I think it's interesting that you talk about all these mentors who helped you. And now you have a practice where you have 40-plus people in your charge. What's your philosophy to mentoring them that you picked up from others? Or also, ways that you felt that you could have been better mentored as a younger lawyer?

Beth: Yeah. So I try to tell everybody, first of all, the fundamental rules in my office are: show up and be present, work hard, and don't be an asshole. If you can do those three things, you're going to succeed working for me. It's just that simple. I believe in trying to mentor people. I mean, there's the mechanics of it, right? Like we do lunch and learns, and I try to get younger attorneys out in depositions just to sit and watch. And I bring them to meetings and try to get them training. I take the time, if they've written something, instead of just redlining it and sending it off, I'll sit down with them and say, okay, do you know why I changed this? Or I'll put in the comment bubbles, here's why I'm changing this, so that they understand.

So right now I'm in the stage where I'm trying to teach my younger partners how to mentor. I think the fundamental thing about mentoring is making people feel safe enough to be able to ask the question. And I tell them every single day, I've been practicing over 30 years, and every single day I learn something new. And if you're not learning something new, then you're not doing it right. And so it may be a tip I get from somebody who hasn't been practicing as long, but I'm like, wow, I never thought of it that way. Maybe from watching somebody who's been doing something better. I have a colleague with whom I've been in leadership in three cases now, and I just marvel at the way he can take a deposition. And so even if I'm not at the deposition, I will watch the video of his deposition, and I'll pick something up from it. But I think it's creating that safe space, if you will, to tell the people who work for you: there's no question that's too stupid. We all were there once, we all had to learn. They call it the practice of law for a reason. It's a practice, and every day you should be kind of making yourself a little bit better.

Ray: So you talked a bit earlier on about bad Supreme Court precedent and how it's tough to be a plaintiff lawyer, particularly in federal court. What keeps you up at night? And also, I want to end with what makes you feel positive and hopeful about the work you do.

Beth: Well, the current administration keeps me up at night, and the current Supreme Court keeps me up at night, because it's unpredictable. I mean, look, I would rather have predictability. That's what the law is: you want to expand it and you want it to fit societal norms and you want to advance it on behalf of the people that it affects, right? I mean, decades ago, who would have thought some of these cases could have even existed, right? But when you have this chaos that we have right now, it's really hard to say to a client, it's going to be okay, we're going to power through and the law's on our side, because it's chaos right now. I mean, it does keep me up at night.

What keeps me sane is, okay, I'm Californian, and I have to shout out for California. I'm still in my West Coast bubble enough of the time in enough cases that I have faith in the judicial system, because we have some incredible jurists out here, and our climate politically is very different. And we still, I think, as a state, believe that state law prevails, and that the courts really are the place where disputes are supposed to be taken. And it's not supposed to be political, and it's not supposed to be issue-driven because of society. It's supposed to be something that you can count on. And I think state law still gives me some comfort. And not just California, other states that still believe in the Constitution. Yeah, that's the only thing that's giving me comfort these days, right?

Ray: Well, one hell of a high note to end on, per my notes. But seriously, Beth, very much appreciate your time and joining the podcast today. Everyone, that's Beth Graham of Grant & Eisenhofer. Thanks so much.

Beth: Thank you.

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