Elizabeth Cabraser on the Power of Collaboration

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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'm very, very proud of what our court system has been able to do, particularly when I compare it to what other legal systems have been able to do around the world. Not copying, but utilizing, adopting, adapting the best of our American litigation systems.

Ray: Hey, everyone, and welcome to a new episode of Raising the Bar. Today, I am joined by Elizabeth Cabraser, who is one of the most accomplished complex civil litigation attorneys in the country. For those who are not familiar with Elizabeth, she is a partner at Lieff Cabraser Heimann & Bernstein. She has litigated cases ranging from, and I know I'm going to miss a bunch here, Exxon Valdez, tobacco, opioids, the Volkswagen clean diesel case, and the list goes on and on. So it's a real honor to have Elizabeth here with us today. Elizabeth, thanks again for joining the podcast.

Elizabeth: I'm thrilled to be here.

Ray: So I like to bounce around in these, and I really like to get to know sort of the person behind all these big cases. But to start, you were recently quoted in a law.com article, and it talked about you comparing some of the elder statespeople of the plaintiff's bar and looking at what happened with President Biden. And I'm not going to get into the age factor. The part that stood out to me was that you bill the most hours of anyone at your firm. At this point in your career, what drives you to work at such an aggressive and high level day in and day out?

Elizabeth: Well, I think it's because I don't really consider it work. If I couldn't do this, I'd have to go out and get a real job, and I've been trying not to have to do that for a long time. I love what I do. It's often challenging, disappointing, heartbreaking, discouraging. But I don't know what else I could do with my time that I would feel was this worthwhile, given what I know how to do and the things I don't know how to do.

And really, we don't make a big deal out of billable hours at my firm, because we're a plaintiff's firm and we work on contingency, so we get paid perhaps. The point is not to spend as much time as possible, but to use our time as cost-effectively as possible. So it's not necessarily a virtue that I spend so many hours. The point is: what can I produce with that time for the benefit of our cases and clients? So it was a little bit of a surprise to me. If I were working for big law on the defense side, they might prize that. Over at my firm, it's kind of like, well, maybe you should take a time management skills course.

Ray: So I was at a conference recently and you were speaking on a panel, and you said something along the lines of becoming a lawyer not necessarily being what you were going out to achieve early in your career, and that you were very much into the research and the scholarship part of it. I'm curious, bring me back to even before going to law school. What were those things growing up that you look back upon today and think really intersected with what I do today?

Elizabeth: Well, I was always a great reader and a researcher and very eclectic, and not necessarily relating to the classes I was taking or the course requirements. In fact, everything else was always much more interesting than the course assignments. I had no idea that I was going to go to law school or be a lawyer. It wasn't a life plan. No one in my immediate family had been to college, much less law school. And when I was in high school, I was lucky enough to get a scholarship to a college prep school in Oakland where everybody was expected to go to college. So I had to pick something, and I loved science, so I was going to go to UC Berkeley and be a physics major, which I did for a while.

But you go to that big library on the UC Berkeley campus, and there were so many books there that had nothing to do with what I was supposed to be reading that I would just spend hours and hours wandering through the stacks. I'd come out at midnight when the library used to close, hadn't done my course reading, but had found a hundred other things that fascinated me. And the cool thing about the law is that it is always that type of a learning experience. With every new case, there's something new to learn: a new industry, a new product, a new part of the country, a new area of science or the law.

Ray: So you decide to become an attorney, but there are many paths an attorney can take. What drove you to wanting to represent individuals and then also develop this specialty in mass tort litigation?

Elizabeth: I originally wasn't going to go into litigation at all. The courtroom scared me to death because you had to talk there, and I was not a big talker. I was a reader, but not a talker. And I don't have a gregarious personality. I don't have a big personality. So I thought, what can I do with a law degree that'll kind of keep me in the back room doing research? It was either a law librarian, and I did work as a law librarian at the Alameda County Courthouse in Oakland for a while, or a legal historian. I was pursuing a legal history degree, and I thought that would keep me safe in the back room, and I could read all the books that I wanted.

But I went to work as a law clerk for an attorney named Bob Lieff, who, interestingly enough, until he retired earlier this year, has been my boss and then law partner throughout my career. I got paid five bucks an hour to do legal research, which was more than I was getting for work study, so I thought that was great.

He was a plaintiff's lawyer, and he had a practice that involved people. I had to learn to deal with people, and I got fascinated by the power of the law to solve real people's real problems. And to me, that was even more fascinating and more interesting and more worthwhile than just the theoretical research, because it married both. If you could figure out a better way, a smarter way to deliver justice to real people that would help them in their real lives, there's nothing better than that.

Ray: So you're coming up in the legal field, a male-dominated world, and you were one of the first, if not the first, women to be appointed to lead an MDL. What was that experience like? You said being around people was a skill you had to learn, and men dominated the field and in many ways still do. How did you break in?

Elizabeth: Well, it helped that I began my practice in Northern California, specifically in the Northern District of California, the federal court there, which happened to be on the leading edge of what we would now call diversity and inclusion. They just called it treating everybody fairly. And while I wasn't particularly welcomed, I wasn't singled out, and I didn't suffer all of the overtly sexist experiences that many of my peers, women lawyer peers, did. I would hear horrible stories about practice in New York or practice in the South. So I was very, very lucky.

But the plaintiff's practice at the time was still dominated by very large personalities, swaggerers. I always used to call them the little buckaroos, the ones that would try to dominate a courtroom, try to dominate a jury. I didn't have that personality. But what I had was the willingness and the interest in doing the work that they didn't want to do: the legal research, the briefing, arguments in pretrial motions. There was no jury in the courtroom; there was a judge. They weren't interested in the judge, oddly enough. I have been enthralled by judges. I respect them greatly. But they wanted to get to the jury. So my job was, let me help you get through all these preliminaries that you're not interested in so we can get you to trial and get you to a jury, or get you to the argument that you think is important enough for your skill set.

And in complex litigation, that turns out to be about 95% of the work. So I'm one person, and I'm willing to do 95% of the work. That was a market, as you would say now, a marketable skill. And gradually over time, it turns out that if you're in the courtroom for pretrial purposes arguing motions with judges, they get to know you, and then the next time it comes time for appointments to leadership, they remember that, and you've either got a good reputation or a bad reputation. So that was really my path. I'm pleased to say that things are a bit better now, and women who want to start out being the trial lawyer have a better opportunity to do that now, but it's taken a long time.

Ray: So when you're appointed to lead one of these mega cases, you and your firm are working with other lawyers that are also often considered leaders in the plaintiff's bar. What qualities do you admire? And how do you approach working with people who have different personalities and egos, and make sure everyone is moving in the same direction?

Elizabeth: That is really the secret sauce that makes a case successful or not, right? Assuming that you have a meritorious case, assuming that you've got people that have the lawyer skills they need to do the discovery and investigation, the case can go well or badly depending on how well these divergent, sometimes clashing personalities can be made to work together. And again, I'm not the sine qua non of social skills, but I did learn very early on about the power of cooperation and collaboration and the power of working together. There is the dreaded litigation by committee, which can be stultifying and a miserable experience. But if people work together in a slightly different, more creative, more vulnerable way, you get the best of what everyone can contribute rather than the average.

And so that's the trick. I'm not sure what the formula is. In many of my cases, I've been very fortunate to be part of that sort of wonderful experience. There have been a few where it just didn't gel. But I think much of it is just the willingness to understand that now I'm part of a group. This is not my case, it's our case. And because it's our case, it can be a much better case than if it were mine alone, because we all know about the power of group deliberation and group decision making. It's just much better than having one person's point of view, one person's ideas, run an entire case.

Ray: When someone comes to you with a case, or you're researching it, let's take the Volkswagen diesel case or opioids, where you have all these different parties involved, whether they're defendants or governmental entities also looking to litigate the case, how do you start to get your arms around that? How do you start thinking through, here's a problem, and how do we work toward a solution?

Elizabeth: Yeah, I am not the most organized or linear person in the world. I tend to try to take in a lot of information and kind of have it marinate. And I try to figure out where the gaps are. What don't I know? What is the missing piece? I also value very highly people that have different types of research skills. There are people that are great fact people. You want that fact person on your trial team. Great legal researchers, you want them too; they'll find it. If it's out there anywhere, they'll find it. You want that person.

And then you want the person that can synthesize those facts, those ideas, those theories, and come up with a legal theory that fits the facts. It's almost like artificial intelligence, machine learning, except it's what people do. You figure out what has to be there, right? You don't have it yet, but based on inferences from everything that you do have, we know this must have happened, or there's a high probability that it did happen. Now let's figure out how to find it. Because we have to prove our case. We need evidence. We can't rely on conjecture. We need enough evidence so that the inferences from the information we do have are reasonable inferences, because juries can infer. That's what circumstantial evidence is. But you need enough direct evidence to enable people to do that.

So that's how I start. And frankly, when I'm thinking about a case, I work backwards. I reverse engineer from the jury instructions that the judge will give, or the elements of the claim that the court will consider if it's going to be a bench trial, on the legal theories that I think fit the case. And so then I know what I need to prove, and also, can I prove it? And again, is this a good fit? It might be a creative fit. We used public nuisance as a theory in the opioids litigation, although there weren't a lot of recent public nuisance decisions at all. When public nuisance started, it was environmental, because while we had a product, opioids, pills, they were creating an environment, essentially an environmental nuisance. People were dying on the streets. And so, without being far-fetched, we try to come up with that. It's kind of an aha moment that is going to resonate with someone: oh, that's what happened, that's why it happened.

Ray: So you mentioned going from jury instructions and working back. You've also been known for crafting some really incredible, unique, and groundbreaking resolutions. When does that enter your mind? How would we land the plane on this? What would that look like? Where does that come up in your train of thought?

Elizabeth: I try to front-load that also, because what's the point of litigation of a meritorious case, of the time and expense that everyone is going to put into this project, if the law does not have the power or the tools to provide some remedy for the problem? Would you go after an entity that is bound to file bankruptcy? Probably not, regardless of the seriousness of the violation, because there's not going to be a remedy. If you know that bankruptcy is bound to happen, is there nonetheless something a bankruptcy court could do to help provide a remedy in those circumstances? And it's interesting to me, if there are any law students watching this, that law students don't get a lot about remedies. Sometimes remedies courses aren't even taught. But the remedy is the point. What can the law do in this circumstance? What damages are available? What injunctive or equitable relief is available?

And equitable relief is important, right? Changing corporate behaviors, providing monitoring, providing a court to watch the future behavior of a defendant to make sure the same problem doesn't recur, those are very powerful remedies. Think of compensatory damages or punitive damages. Well, that's throwing money at a problem after the fact, right? It doesn't fix the problem. It's a proxy for justice, but it's not justice. And what if you can get not only compensation, but can also provide justice, corrective justice, something that ameliorates, mitigates the problem, prevents it from happening again?

And when we're thinking about resolution, we can do that. We can be much more creative and assistive in settlement than we might be able to be at trial, because a jury can't provide equitable relief or injunctive relief or tell a defendant, hey, change your behavior. They do it indirectly by awarding money. That's what punitive damages are supposed to do, indirectly or symbolically, to send a message. But in a settlement, we can actually craft that message and make sure the message is not only sent, but it's received and it is followed. And that's what's exciting to me about settlements, because you can do much more than you could in an adversary context.

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Ray: Once again, we're joined by Elizabeth Cabraser, who's a name partner with Lieff Cabraser Heimann & Bernstein. Elizabeth, I want to pivot a little bit and talk about the future of MDLs and the future of the plaintiff's bar. For younger attorneys who may be listening to this and want to break into MDLs and lead MDLs, what advice would you give them?

Elizabeth: The advice I would give them is take every litigation-related course at law school that your law school offers. There used to not be very many of those. There weren't any when I went to law school back in, well, it was a pre-historic period anyway. But now there are, and there are schools, Berkeley, Yale, Harvard, Stanford, many, many schools, that will teach a multi-district litigation course. They teach class action, they teach mass torts, they teach litigation skills, they teach settlement skills and strategy.

Sometimes those are called the practicum courses or the experiential courses, but they're very important, because you have to know the tools that lawyers and judges are actually using out there. And you're not going to get a detailed look at that toolbox, at that tool set, in your first year of Civ Pro. You'll learn a lot about federal jurisdiction, but there's not time in a first-year Civ Pro course to get you to what lawyers and judges are actually doing today, what they might be doing in the future, and how they're doing it.

Ray: So how about for those lawyers who are doing PI work today, but they see how judges ask for your leadership application and your experience, and it's a bit of chicken and the egg? I don't have the experience, but how do I get appointed to get that experience? What do you recommend to those attorneys out there?

Elizabeth: Well, it's easier now to get that first job than it used to be, because judges are much more aware of the fact that if they are going to get some help in managing the complex case that has been assigned to them, they need an array of lawyers on the plaintiff's side that have all of those skills. They pretty much presume that the lawyers on the defense side, who have gone through beauty contests with major defendants and who have law firms with hundreds or thousands of lawyers, are going to bring those tools to the table. They don't worry about that too much. But they do worry on the plaintiff side, because most of us come from very small firms. A number of plaintiffs' lawyers that get involved in complex litigation are essentially sole practitioners.

So we have to litigate within a structure, which is a de facto law firm that the court essentially creates for the duration of the case. And so you want everybody in that law firm that can do the different things. Even a very young, inexperienced lawyer who, for example, has a science or engineering background and has done the factual scientific research to bring the individual case, has got something that is valuable to the group and valuable to the court. And this may be the first time they are exercising that skill or that background within a leadership structure. The leadership applications now basically enable people to put forth not just the standard resume, here's how many cases I litigated, here's who appointed me before, here's the fancy law school I went to. You don't have to go to a fancy law school. You just have to have something that will be useful to the case.

Ray: You know, I doubt you remember this moment, but when working on the Volkswagen diesel case, you did this Q&A with an auto website.

Elizabeth: Oh, the Reddit folks. Yes.

Ray: Yeah. And I think this person was probably being a smart aleck, but they were like, well, what does she know about cars? And it's like, what have you owned? I'm not going to recite the response, but it involved you having experience working on all these different engines. I'm not a car person, but it was one of those answers where I couldn't believe it. And I remember all the commenters laughing at the original poster, thinking they were going to pull one over. And then, also, for the folks who aren't aware, you're a drummer as well. For someone who spends so much of their life dedicated to their client and to the practice of law, you also have these other varied interests. I'm curious, how do those interests allow you to decompress? And how do you use those tools to help solve the problems that you're faced with day in and day out?

Elizabeth: Yeah, you know, that's a great question. On the Volkswagen case, I've done a lot of automotive litigation throughout my career because I'm fascinated by cars and how they work and how they can go wrong. My dad was, among other things, kind of a shade tree mechanic and a weekend stock car and race car driver and mechanic. So we had cars taken apart all over the place, and we all learned to work on them and fix them. I can't fix a modern car; that's all computers, because there are no mechanics left. But I've had an interest in cars, and I like to drive. I like to drive club racers and stock cars, and I always have. I don't do it much anymore because my reflex times aren't quick enough for cars.

But I have found that for me, I am a hands-on person, and the way that I solve problems is by taking something apart and seeing how it works and seeing, can I fix it, can it be improved? It works great in product liability design, because we always have to argue that there's a safer alternative design. So the more you know about design, at least enough to appreciate the real experts, the better. And music and drumming is important to me because it is hands-on. It uses a different part of the brain. It's being able to be with people that care nothing about the law, that are living in a different world and space, which is refreshing, and I think it's important.

I would recommend to everyone, whether they're in law or business or medicine, whatever they're doing, to find something that you are obsessed with and need to do. Even though it's one of these 24-7 things, find a little time to indulge yourself in a completely different hobby, interest, or skill. Learn about something that you wouldn't otherwise learn. Pick up the trombone that you used to play in middle school, do it again, play guitar, do art, just because it is a palate cleanse. It's a brain refresher. And sometimes I find that when I'm away from the legal problems and I've been trying to solve a completely different problem, something is always going on in the back of your head somewhere that is working. You're still working on that problem, but you're not exhausting yourself. And sometimes you get back to it, and that's when the insight occurs or the revelation occurs. Plus, you've also gotten a little relaxation downtime.

Ray: When you look at the next 10 years of the plaintiff's bar, what gives you optimism and what keeps you up at night?

Elizabeth: Well, I'll take it in reverse order. What keeps me up at night is the threat to all of our government institutions, including the courts, because we need them. They're what protect our freedoms, our liberties. That's what makes us Americans. I'm very proud to be an American, because I'm very, very proud of what our court system has been able to do for Americans, particularly when I compare it to what other legal systems have been able to do around the world. And frankly, they're utilizing, adopting, adapting the best of our American litigation systems to bring more protections to people and consumers in their countries. So more countries are using class actions or representative actions. Their courts are opening up. And I very much fear that our courts are closing down. We need that access to justice. We need that courthouse door to stay open.

Courts do more with less than any other institution of government. They are the lowest item on the budget. Taxpayers pay the least amount for them, but yet they do so much. And so the preservation of our civil justice system, the preservation of our courts, is going to be key, particularly during the next few years, because we're going to be seeing less government regulation, which means more things could go wrong. I hope they don't, but if they do, we're going to need those courts more than ever.

And what I'm hopeful about is that courts, judges, lawyers, and citizens will rise to that occasion, and people will express their power and protect their rights through our court system. It's there for everyone. Lawyers will remember that they are servants and agents of justice. We are servants of the people. We are agents of justice. We are very fortunate to be able to earn a living doing what we do. But it's most important that we keep doing what we do. It's more necessary than ever.

Ray: When you look back on your career, what will stand out to you as your greatest accomplishment, and what do you still want to accomplish?

Elizabeth: You know, I don't think of it in terms of accomplishment, but I'm very, very proud of my firm. We started as two lawyers. The senior lawyer was trying to retire. That did not work out. We just kept going. And over the years, our firm has grown gradually and slowly. We have wonderful lawyers. I would not qualify to get a job here today, I'm proud to say. And the folks that work here, lawyers, paralegals, staffers, have a commitment to civil justice and a joy in doing the work. And I very much hope that that is sustained.

I both enjoy passing the torch to our newer generation of younger partners, although occasionally I tug it back, because I don't want to leave. But the law is a relay, and you've got to have somebody to pass that torch to. And you hope that they're faster, stronger, brighter, and are going to carry it the next way. And I see that in my firm. To me, that's something that I'm very proud of. It's not my accomplishment, but it is something that I'm very proud to be a part of.

Ray: I think that's a great note to end it on, Elizabeth. Again, I just want to thank you for the time and for joining the podcast today. And thank you for all your efforts, which many Americans are indebted to you for, for what you've accomplished in civil justice. So again, thanks so much.

Elizabeth: Well, thank you, Ray. And by the way, the law deserves and needs more good PR, so keep at it.

Ray: Thanks for the plug. I appreciate it.

Thanks for listening to this episode of Raising the Bar with RebuttalPR. Don't forget to subscribe and follow to join us next time. See you then.