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By Philip W. Boesch Jr
Re-printed with permission – WestsideToday.com

“David Steals Goliath’s Music.” A New York Times editorial weighs online music piracy.

“David Versus Goliath.” – Business Week describes podcast wars.

Under the heading “David and Goliath,” it’s Elizabeth Hasselbeck and Rosie on rightwingnews.com.

Newsweek says Arabs on the street see America as Goliath.

An ad agency just calls itself “David and Goliath,” because everyone must know what that means.

It’s the classic confrontation. David, small and quick, lines up against the hugely ugly and powerful Goliath. Goliath goes down with one stone from David’s sling, defeated, beheaded, and abused for eternity. David becomes the rich king of all he sees. No one since has doubted that the Philistine deserved to die.

Taking a closer look, the man had 3 brothers, a mother, father, and a hundred dependents. A breadwinner with a long work history and a bright future, the man would be sorely missed, the loss of his care and protection worth boatloads of gold. The calculation of damages, all those zeros, could excite the dull deposition of any expert economist. Proving the death a wrongful one would be less heresy, more common sense. If the lawyer did his job to get a fair jury beyond all the hype of public attention, the facts could roll out easily. The theme, and all trials have themes, is that this death could have been avoided. Sure, this obnoxious man had stood in the valley for forty days, screaming challenges, but when jurors thought about it, taunts don’t justify murder. David’s lawyers could not justify the deadly strike. The young man’s move had been calculated, premeditated. It didn’t matter how much bigger Goliath was. It didn’t matter how afraid others might be. David had acted without fear, without doubt or remorse. It didn’t matter that Goliath killed when he felt like it. Even the most grotesque among us has the right to live. The trial would not need especially clever crossexamination. Before two thousand witnesses, David had marched ahead toward Goliath with a single, openly stated purpose. He said he’d kill him. He intended to kill him. He felt no fear. He even took off his armor. He was that confident, even arrogant, in his righteousness.

The death scene wouldn’t help David’s defense. The 9-foot Goliath, as tall as he was, stood in a valley beneath two hilltops. When the experts measured the angles, everyone could tell that David struck from above, from a distance Goliath had no chance to reach. As powerful as the man was, he could not have hurled his heavy sword the entire distance if he’d wanted to, and no one saw him try.

Faster, more agile, more clever, David’s advantages began to add up. Trained for years in the arts of his sling, teachers said David could nail a bullseye from a hundred paces, and Goliath stood much closer than that. Whatever Goliath could see coming toward his one good eye wouldn’t matter anyway. Everyone knew Goliath was too slow to move out of the way of anything, too slowwitted to think to duck. When they tried to defend David with a self-defense theme, good counsel would have been ready. There was that trick move David pulled before he let go with his sling. Samuel wrote it in the Bible, and so it must be. David yelled that he was going to feed Goliath’s carcass to the birds. When David pointed overhead, and Goliath looked up toward birds that weren’t even there, when the big man didn’t see it coming, David unleashed his strike.

Wrongful death. Murder. In the first degree. David’s defense would be left to flay away with cute lies… ‘if the stone don’t fit you gotta acquit’ and that sort of thing. The dead man’s family had proven liability, and  significantly, a defendant with the means to pay. David would be King with a store of gold. Damages, punitive damages, the sky was the limit. Of course, King Saul had on retainer lawyers who were too smart for all that. The day after, and for all time, David was an international celebrity, famous beyond all realms. With such a reputation to protect, a legacy greater than the fits and grief of the few, Saul’s lawyers had the situation surrounded with overwhelming efficiency, and privacy. Philistines might complain that the celebrity got unfair favorable treatment, what with no prosecution, being made king and all. But Philistines never could know what was happening behind the scenes. That was the whole point of it. The competence of the lawyers guaranteed the privacy of the outcome. Real names were hidden by trusts, the agreements were tight, the consequences of breach severe. If anything hit the press, they were ready with pre-packaged releases on self-defense and good riddance.

It shouldn’t surprise anyone if money were paid privately to protect a world class celebrity. It wouldn’t cost too much, because after Goliath died, David’s men routed his army, looted his villages and left the victims very needy. They couldn’t wait for a long trial to feed their kids. Food and shelter before lawsuits, David’s lawyers said. And they were right. They also knew there would be a payment. There could be no trial, no tarnish, nothing to hold back the creation and wonder of the celebrity that was David. That’s celebrity justice. Today it’s the hamburger stand against the Big Mac, the indie film hunting distribution in a crowded market, a sexually harassed employee with no witnesses, the boutique against the chain. Anytime it’s small against big, the few against the many, it’s David and Goliath all over again, and both of them need help.

Philip Boesch and the Boesch Law Group were the lead trial counsel in obtaining the record judgments for Anna Nicole Smith, and in obtaining a California state record wrongful death judgment. They have represented numerous celebrities in high-profile lawsuits, and in settling disputes on a low profile basis.

Philip W. Boesch is the principal and founder of the Boesch Law Group and an experienced litigator. He has obtained a state record wrongful death verdict in one case, and in another case what U.S. Lawyer’s Weekly profiled as the Number One Judgment in the United States. The Boesch Law Group practices business litigation and personal litigation in all state and federal courts.

By Philip W. Boesch Jr.
Re-printed with permission – www.WestsideToday.com

Litigation is a nasty business, an expensive process by which ordinarily civilized people resolve conflict, so as to come to a settlement no one is happy with. The first rule you learn about settlement is that a good one is equally disliked by all sides.

No one comes to litigation with much affection for the one who sues him, and it is easy to understand revenge when your loved ones are injured or your business is attacked. In a legal system where people pay for their mistakes through court process, parties hire headhunters to battle for private notions of justice distorted by pain.

Headhunting begins with the selection of the litigator. “Nice and thoughtful” works for estate planners. Litigators should flash menace, inspire fear. James Woods in “Shark” is the hungry, vicious animal you’d love to set loose on your enemies. On “Boston Legal,” the relentless brilliance of James Spader has, as its foundation, a do-anything/ say-anything strength that has no consequence but success. Yes, it is important to be smart, but not enough. The meanest bully, the one who eats nails for breakfast and your enemies for lunch (a headhunter) is the litigator most people think they want.

Anthropologists who study headhunting know that the practice was not confined to the jungles of New Guinea or the Amazon. David took Goliath’s head, and the Celts practiced headhunting too, because it reflected dominance and power and control. Wearing a man’s head on your belt completed the victory. Fill it with hot pebbles and sand, drop it in a simmering pot of water, wait twenty hours and then you had him. Shrinking it took his soul.

Divorce is fertile territory for headhunting. Punishing the guilty, sharing agony, slicing and dicing and shrinking heads,
can be stated goals or merely wishes left unsaid. Depositions can be ritualistic practices not so much to gather evidence
but to give the witness a painful dose of what misery awaits in the glare of the courtroom. Litigators refer knowingly
to “scorched earth” tactics designed to inflict discomfort and waste. The phenomenon of spending a dollar to ask a question that will cost ten dollars to answer is called “interrogatories.” Serving subpoenas on secretaries, lovers, bosses and confidants follows the terrorist tactic of instilling fear by lining up the loved ones of the enemy.

There are 54,000 lawyers in Los Angeles County; many of them litigators who have to promote themselves as the toughest headhunters money can buy. But as the headhunter ages and survives, the lessons sink in. It’s not the fear that
there always will be a younger, faster gun around the corner. It’s not a waning of desire either, because strong survivors in any field take satisfaction in being the best at what they do. The real lessons of war are in knowing how and when to reach for those small openings towards peace, in knowing how to build the bridge, piece by piece, to those you are working so hard to destroy. Bridge-building is the real art, lost in the beginning of a lawsuit, but reappearing always as exhaustion sets in. And exhaustion does inevitably follow because litigants cause each other so much unnecessary expense before the final round of a trial.

Henry Kissinger wrote that “we do not have the privilege of pretending a limitless capacity to impose our will.” As the
wise headhunter knows, as the Iraq war debate tells us, the preparation for the peace should precede the preparation for the war. Everyone knows that bridges are not built in a day. It takes skill, design, negotiation and, most of all, it takes communication and trust.

Headhunting leaves the warrior’s head, soul and spirit on his opponent’s belt— emotionally unavailable. With no one building bridges, endless expense remains as the reminder that there are headhunters out there who still practice their art without the slightest regard for client interest. You should carefully hire the headhunter at your peril, or you may reap what you sow.

Philip W. Boesch is the principal and founder of the Boesch Law Group and an experienced litigator. He has obtained a
state record wrongful death verdict in one case, and in another case what U.S. Lawyer’s Weekly profiled as the Number One
Judgment in the United States. The Boesch Law Group practices business litigation and personal litigation in all state and
federal courts.

By Philip W. Boesch Jr.
Re-printed with permission
www.WestsideToday.com Westside Today • April 2007 35

Petra Hernandez, the bread-winning mother of four, was on her way to work along Route 144. Ten minutes later, state troopers sifted the remains of Petra’s head-on meet with a dozing truck driver. One minute Nga Li was minding her own business, turning left on Alvarado, heading home. Next thing she remembered there were bandages on her face and the loud moans of a charity ward, courtesy of the speeding cabdriver who hit her. At the hospital, Eliza Hurtault, who checked in two days earlier with a bleeding ulcer, stared blankly at the $23,984 bill. Its payment would take all she had and then some.

The first underdogs were eastern shipbuilders who laid their logs over a pit on planks called dogs. On top, the overdog pulled the two-man saw. In the hole, the underdog held on, sucking in the sawdust. In the west, prairie dogs were the underdogs, critters who hid in their holes, or who came out to be eaten, shot or stomped.

Underdogs have less everything: less money, less power, fewer advantages. As the insurance company saw it, Petra the cafeteria worker wasn’t wearing her seatbelt, and she was married to an unemployed husband who couldn’t read or write, and so, minimum wage, minimum offer. As for Nga Li, she might have contributed to the accident. No offer. Eliza Hurtault? She sold everything she could and worked harder than ever to keep up payments, even though she’d been charged four times what an HMO patient would have been charged for the same treatment.

Unfair? Life isn’t fair. Every contest has an underdog. Insurance claim reps have to measure death in some way. Contributory negligence always meant no recovery. And our elected officials passed the laws that encourage HMO’s to negotiate lower prices for health care.

It’s always been this way. The deck has been stacked against the underdog since the day California became a state. Back then, Chief Justice David Terry assured followers that the Chinese and the Irish never would be allowed in his courts. Slavery would stay legal in California, Terry promised, even if the state had to be divided in half. When Senator David Broderick stood for abolition, our Chief Justice shot him dead in a rigged duel.

“It takes great courage to step forward with less, to confront fear and threat in litigation that’s already hard enough to understand. To find justice in the system, we depend on this courage and you can count on the day the underdog strikes back.”

Judges are still people, with experiences and prejudices and points of view. They go to judging school, and some get high marks, while others deserve D’s and F’s. The duels are now verbal and the barriers, though not so obvious, remain impossibly high for the underdogs. It costs money, too much money for most, to hire good lawyers to navigate a system of complaints, pleadings, discovery, depositions, hearings, mediations, all before you get to trial. Little wonder underdogs remain underground, coming up only when they must.

So when does “unfair” become so intolerable that you just have to come out? Do you wait until an unfair competitor puts you out of business? Or until collection agents come to take your house? Or until you are paralyzed? Or dead?

When Nga Li decided to stand up against an unfair system, her court opinion in Li v. Yellow Cab changed the law of the land. Contributory negligence no longer barred all recovery of damages. Liability would forever thereafter be apportioned and divided among those responsible, changing the lives of thousands, millions of injured victims. When Guadalupe Hernandez turned down the token settlement offer for the death of his beloved wife, the state record jury verdict changed the way the insurance companies evaluated a child’s loss of a parent.

When Eliza Hurtault had to respond to agents collecting a bill for services four times the amount charged to an HMO patient, she and eleven others like her stood up as test cases against an unfair business practice. Her courage resulted in the “Compact with the Uninsureds,” reducing charges and eliminating the unfairness for many of the most needy patients. Underdogs again changed the way business was done.

No one ever prosecuted Justice Terry for murdering a U.S. Senator. The Chief Justice followed his prejudice to become a Brigadier General in the Confederate Army and returned after the war to a life of politics and prosperity until 1888. Supporting his young second wife, who lost a case on appeal, Terry approached and bullied the appellate justice who decided his wife’s case. The man’s bodyguard intervened and shot Terry dead. On the theory of “good riddance,” no one was prosecuted for that murder either.

It takes great courage to step forward with less, to confront fear and threat in litigation that’s already hard enough to understand. To find justice in the system, we depend on this courage and you can count on the day the underdog strikes back.

Mr. Boesch was appointed by the Los Angeles Superior Court as guardian ad litem of the 4 Hernandez children, lead trial counsel, and then after collection of the Judgment, Court-appointed guardian of the children’s estates. The Boesch Law Group successfully represented Eliza Hurtault and 11 other test cases, achieving peace for them and the hospitals’ Compact with the Uninsureds.