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Nossaman Partner David Graeler Profiled In Law360 "Trial Pros" Q&A

03/16/2016 Law360

David Graeler, Chair of Nossaman’s Litigation Practice Group, was profiled in Law360 as part of its “Trial Pros” Q&A series. The series provides insight into how the most respected trial attorneys in the field consistently achieve successful results for their clients. Mr. Graeler’s full Q&A can be found below.


David Graeler serves as chairman of Nossaman LLP's litigation practice group. His track record of success in high stakes litigation in federal and state courts has earned him numerous awards and accolades, including a 2014 California Lawyer Attorney of the Year Award for litigation, recognition as co-lead counsel in securing a jury verdict that ranked among the National Law Journal's "Top Verdicts" and securing a spot as lead counsel for the "Top Verdicts in California" in 2013. Graeler was also recognized by the National Law Journal as one of its "Top 50 Litigation Trailblazers & Pioneers" in 2014.

Graeler focuses his practice in the representation of public and private sector clients principally in the areas of real estate and eminent domain, construction, business disputes and data protection.

Graeler currently sits on the board of governors of the Association of Business Trial Lawyers and serves as co-chairman of the Courts Committee, where he liaises with industry leaders from the bench and from various bar associations. He also serves on the Judicial Appointments Committee for the Los Angeles County Bar Association, which assists the California governor in evaluating judicial candidates for the Los Angeles County Superior Court.

Q. What’s the most interesting trial you've worked on and why?

A. The most interesting trial I’ve worked on is Federal Deposit Insurance Corporation as Receiver for IndyMac Bank, FSB. v. Scott Van Dellen. This was the first lawsuit filed by the FDIC in connection with the 2008 banking crisis, and it followed an 18-month investigation that explored numerous complex residential acquisition, development and construction loans that were made by IndyMac. The banking crisis and the Great Recession were still very much in the public light while I worked on this case and brought it to trial. It was exhilarating to be involved in a case that was on the front line of the financial crisis. The complexity of the case also made it interesting. We had over 60 individual loan transactions at issue involving properties and witnesses located in many different states. Our complaint spanned over 300 pages. I believe we also had over 100 days of deposition testimony taken in the case and it was a real challenge to distill a tremendous amount of financial information into a trial presentation that would be clear, memorable and not boring. Of course, securing a $169 million verdict for our client was a wonderful way to end nearly four years of work.

Q. What’s the most unexpected or amusing thing you've experienced while working on a trial?

A. Perry Mason moments at trial are rare. When they occur, they are often amusing. I will share two stories. The first occurred during the IndyMac trial. I was responsible for cross examining one of the opposing loan experts. One of the key issues at trial was the housing bubble and when it burst. Most of the bad loans that we brought to trial were approved by our defendants in 2006 and 2007. Naturally, if we could show that the housing bubble was a known risk or had burst before our defendants approved the loans, it would go a long way toward proving that their decisions to approve the loans fell below the standard of care. The opposing loan expert testified on direct examination that the real estate markets that IndyMac was lending in were strong through 2008. During my preparation for his cross examination, I discovered that the expert gave a presentation in early 2006 to the Los Angeles County Bar Association on “How to Deal with Troubled Real Estate Assets.” To my surprise, the opposing expert’s presentation had an audio recording. When I listened to the recording, I heard the opposing expert’s distinctive voice bellow “When the housing bubble burst in some markets in 2005 and others in 2006, we had an unprecedented run up in prices that just jumped off the charts ...” Thus, at trial, I asked the opposing expert if he really believed the real estate markets were strong through 2008. After he stuck to his guns, I asked him if he recalled giving a lecture to the LA County Bar Association and he said he did. I asked him if he conveyed accurate information during that lecture and he said he did. After a bit more set up, I was able to play his audio recording at trial. I then asked him if he was paid to speak to the LA County Bar Association when he said the bubble burst in 2005 and 2006, and he said “no.” I then elicited the tremendous amount of money he was paid for his opinion in court.

The second example occurred during an inverse condemnation trial that I handled more than 10 years ago. I represented a public agency that was sued by a property owner who claimed that my client’s highway overpass project resulted in impaired access to his property. He claimed that cars and trucks could no longer enter his recycling business from the primary entrance because vehicles were traveling too fast and that it was unsafe. In the lead up to trial, I arranged to have a hidden video camera record the plaintiff’s property for two weeks. To my great surprise, not only were cars and trucks doing precisely what he claimed couldn’t be done, he did it himself! At trial, I locked in the property’s owner’s testimony before systematically showing him videos that disproved his testimony. The trial was essentially over at that moment.

Q. What does your trial prep routine consist of?

A. I first assemble my team to carefully define all tasks and strategies. I then ensure that each member of the trial team understands what his or her responsibilities are and when they are to complete their tasks. As for my personal preparation routine, I try to complete my witness examination outlines weeks before the trial is set to begin because it enables me to refine my trial themes and develop an opening statement. I then spend the remainder of the time editing my examination outlines and rehearsing my opening statement.

Q. If you could give just one piece of advice to a lawyer on the eve of their first trial, what would it be?

A. Be yourself. While different lawyers have different styles, the most important thing is to be genuine. Jurors are intuitive and can sense if you are putting on an act. The jury is looking to you to bring truth to the courtroom, don’t give them a reason to distrust you.

Q. Name a trial attorney, outside your own firm, who has impressed you and tell us why.

A. I’d have to say Judge Thomas D. Long. Before joining the bench, Judge Long was a partner at Nossaman and we worked together on the IndyMac trial. Judge Long had a presence in the courtroom that exuded control and poise. He was also very direct and credible in front of the judge and jury. I learned a tremendous amount from him.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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