Pat McCartan was from Youngstown, Ohio, the son of an Irish immigrant who was a local policeman. “His playground was a field down by the railroad tracks,” McCartan’s wife, Lois, would rhapsodize. “Pat grew up in the school of the street.”1 That was until he discovered the magic of the courtroom.2 He would sit in the gallery watching trials the way other youngsters were glued to the TV. These real-life legal dramas thrilled him. After high school, McCartan headed to Notre Dame, determined to become a lawyer.
As an undergrad, he worked at the college radio station, inveighing against Richard Nixon and Joe McCarthy, much to the annoyance of campus conservatives.3 A few years later, after graduating first in his class from Notre Dame’s law school, he landed a coveted Supreme Court clerkship, working for Justice Charles Evans Whittaker.4 Eating lunch with other clerks in the court’s cafeteria, he was prone to liberal outbursts, especially on cases involving civil rights and school desegregation.5
McCartan joined Jones Day in 1960, the same year as Scalia. (The two became lifelong friends.)6 He initially was headed for the dry world of tax law, figuring he wasn’t cut out for the glamour of being a trial lawyer. But Jack Reavis saw something in the young man.7 He told McCartan that there was a glut of workers’ compensation suits—derisively known as “slip and fall” cases—and asked the partner in charge of that litigation to throw some work McCartan’s way. The partner was happy to lighten his load, and soon McCartan was taking his first case to trial. He won, trotting out a chalkboard to document the contradictory statements by the plaintiff, who claimed to have hurt his back at a Chevy plant.8
That was the beginning of McCartan’s vaunted career as a trial lawyer. A series of impressive victories followed. He successfully defended Firestone Tire in what had looked like an unwinnable patent case. He managed to convince a jury that GM’s notorious Corvair—unsafe at any speed—was a decade ahead of its time in terms of safety. McCartan fended off Mobil’s attempted hostile takeover of Marathon Oil, a longtime Jones Day client. The triumphs earned him a front-page Wall Street Journal profile with the headline “Top Trial Lawyer Gets Firms Out of Trouble With Quiet Efficiency.” (The Journal memorably described McCartan as such a pristine dresser that he appeared “as primped and pressed as a Brooks Brothers mannequin.”9)
The decision to defend giant corporations for a living required you to either embrace their worldviews or to consistently subordinate your core beliefs. McCartan, it seemed, had prioritized his career over his politics. Perhaps trying to suppress his idealistic side, he avoided cases involving people, preferring institutions. Once, he had been stuck at a county jail on Christmas Eve, having been assigned by a court to represent an indigent defendant. “In a way, that was more difficult than corporate law,” McCartan said in 1982. “I was dealing with an individual who was in that situation because he didn’t understand the things I was trying to tell him.” He paused. “I guess I just get too involved in my cases.”10
McCartan inspired his acolytes—few more so than Steve Brogan. Part of it was that McCartan was a renowned litigator. His preparation and work ethic were legendary. But it was more than that. He knew the lawyers’ wives. He knew what their kids were up to. Young attorneys at Jones Day “are intensely loyal to him,” Brogan told an interviewer in 1993. “He taught them to be lawyers.”11
One result was that by the time McCartan became managing partner, he had the self-confidence to move quickly—and in a slightly new direction. Soon after settling the savings-and-loans lawsuits, he decided to do some pruning. The law firm had grown very large, very fast. When he took over, Jones Day had about 1,200 lawyers scattered all over the world, more than three times its size a decade earlier. The breakneck growth was exhausting. “I would like to think that the expansion of the firm has reached a plateau, or, at least, that the firm would not expand further for a while,” Erwin Griswold, the former solicitor general and longtime Jones Day partner, wrote in his 1992 memoir. “There is a point where the administrative problems will exceed the capacity of even the ablest managing partner. The development has already gone far beyond anything I would have thought possible when I joined the firm.”12
McCartan seemed to agree. He told an interviewer in January 1993, just as he took the helm, that law firms in general had grown too quickly. “I think it’s now apparent that supply exceeds demand,” he said. “Law firms are going to have to concentrate more on what their clients think they need.”13 That year, Jones Day’s roster of lawyers declined by 117. (It still had 1,066 and remained the country’s second-largest firm.)14
Soon McCartan shut down the firm’s Austin office, one source of the trouble with the FDIC.15 Next, he closed the firm’s PACs, which, as Jones Day had just learned with Keating, invited scandal.
McCartan’s career had been spent in litigation, and that’s where his heart remained as managing partner. The litigation department was the engine behind Jones Day, thanks in part to the steady thrum of tobacco work, but also a slew of other large, lawsuit-prone clients. It was a halcyon period for Jones Day’s trial lawyers. Not only was one of their own leading the firm, but its litigation department boasted two of the country’s best courtroom practitioners: John Strauch and Bob Weber.
Strauch was a master, in particular, at destroying opposition witnesses. One fabled episode took place in 1994.16 He was representing a bankrupt computer company called Alpex in a lawsuit against Nintendo. Alpex had patented one of the first technologies for home gaming systems where you could stick different cartridges into a console to play different games. The invention was a radical advancement from consoles that were hardwired to play only one game. A few years after Alpex’s patent, Nintendo introduced its own cartridge-based gaming product. The underlying technology was similar. The crucial difference was that Nintendo’s console came with blockbuster games like Super Mario Bros., which would revolutionize the industry.
Alpex sued Nintendo, accusing it of violating its patents. The case went to trial in the summer of 1994. Nintendo’s defense hinged on the argument that its Nintendo Entertainment System used more advanced, faster technology that allowed fully animated characters—visualize the curves on Mario’s and Luigi’s bellies—instead of the “linear player images” in use on consoles that relied on Alpex technology.
Nintendo’s expert witness was an impeccably dressed MIT computer scientist named Stephen Ward. He explained to the jury the superiority of these animated graphics, which he said simply weren’t possible using Alpex’s clunky technology. Then Strauch stood up to conduct the cross-examination. It was a hot day, and the air-conditioning system at the federal courthouse in downtown Manhattan wasn’t working. The judge invited the lawyers to shed their jackets, and Strauch happily did so, rolling up his sleeves. The opposing lawyers kept their jackets on, looking uncomfortable.
Strauch had prepared carefully for this cross-examination. He asked Ward to pinpoint the difference between the animated and linear images. Ward dodged, saying it was hard to define but that he could easily recognize them. Great, Strauch said. He wheeled out a large pad of white paper on an easel. He took a marker and drew a stick figure, which he said was supposed to be a hockey player. Which was that, Strauch asked, a linear or animated figure? Ward said it was obviously a linear figure. Strauch colored the stick figure red. Now which was it? Still linear, Ward answered confidently. Strauch added a bulge around the figure’s waist. Now? Still linear. This went on for a while, and everyone could see where it was going. Strauch added a nose. Then a tail. (It was a “combination human-animal cartoon,” he explained, his hands smeared with ink.) Ward allowed that the image was inching closer to the description of an animated cartoon, not a linear graphic, but that it was in an ambiguous zone.
Finally, Strauch scribbled on a beard, and Ward acknowledged that the figure had now crossed the invisible threshold from stick figure into three-dimensional cartoon.
“Okay, so now I know how you are drawing the line,” Strauch deadpanned. “If we have a nose, two little arms, a tail, more hip, and the configuration I have drawn, except for the beard, you don’t know whether it is a linear image player or not. But if we add the beard, it is not.”
The arbitrary nature of the distinction was clear for everyone in the courtroom. The jurors loved it. Some of them ducked behind the rail of the jury box so the judge wouldn’t see them laughing.17
After a few days of deliberation, the jury delivered a stunning verdict: It found for Alpex and awarded more than $200 million in damages, an embarrassing blow to the almighty Nintendo. It was one of the largest awards ever in a patent-infringement case.18 That cross-examination became a legend inside Jones Day. Strauch would regale lawyers about the strategy behind it, how he had prepped it in advance, how he knew that Ward would eventually snap. “There comes a time when the witness will know his next answer will be absurd,” Strauch explained. “That is when they’ll give you what you want.”
Bob Weber, too, had a knack for dismembering witnesses, pouncing when they left out small details. If they’re hiding this one little thing, what else might they not be sharing?19 In one case, defending RJR in a lawsuit brought by Minnesota’s attorney general, Weber grilled a professor who was a witness for the state. Weber asked her to read aloud a press release. She skipped a word here, a sentence there. Weber had her. “You didn’t read that quite right, did you, professor?” he asked.
“I read what I wanted to.”
“You skipped over a sentence, didn’t you?”
“It wasn’t part of my point,” the professor answered, falling into Weber’s trap. Jurors rolled their eyes.20
Like all experienced trial lawyers, Weber had suffered his share of setbacks. One came in 1984, on his first case after being named partner. Jones Day was representing Art Modell, the principal owner of Cleveland’s cherished Browns football team. Modell was in a financial dispute with one of the team’s minority owners, and the fight went to trial. Weber tried the case with McCartan. They lost. The next day, McCartan stomped into Weber’s office with a copy of that day’s Plain Dealer. The verdict was on the front page. McCartan threw the newspaper onto Weber’s desk and snapped at the junior partner: “One thing I hope for you is you don’t wake up on your fiftieth birthday and find out you’re the biggest loser in town.”
The Indians baseball team for decades had played at Cleveland’s Municipal Stadium alongside the Browns. But in the early 1990s, the city had blessed—and agreed to partly finance—a new sports complex that included Jacobs Field for the Indians. The stadium, named for Dick Jacobs, the team’s owner, opened on a sunny Monday in April 1994. Bill Clinton, wearing an Indians jacket over his suit, strode to the mound, shook some hands, and fired a ceremonial strike to Sandy Alomar Jr. behind home plate. The president then watched the game from Jacobs’s suite.21
When Jacobs Field was being built, a number of Cleveland-based companies had ponied up $1 million apiece to help defray the costs. At Pogue’s behest, Jones Day was one of them. The decision ticked off partners, who demanded to know why Pogue was spending the firm’s money—their money—on what felt like a charitable endeavor.22 But it wasn’t long before the contribution paid dividends. The Indians held a lottery among big contributors to see who would get which luxury box. Pogue drew the first pick and selected the box right next to the owner’s. “I became an instant hero with the partners,” he reminisced.
On Opening Day, Pogue, McCartan, and Weber were in the Jones Day box. Clinton had been leaning over a railing and chatting with McCartan. “Then he jumped across the bar separating the two loges and started talking to me,” Pogue recounted. They chatted for five minutes. Pogue, a staunch Republican, couldn’t help but be impressed with the charismatic young Democrat.
Weber, too, was in a jovial mood. Clinton’s national security adviser, Anthony Lake, briefly left the loge and upon his return asked if anybody had come looking for him. A crisis was underway involving North Korea, and Weber joked that yes, there had been a phone call for Lake, and the voice on the other end had been shouting in what sounded like Korean, and the only decipherable phrase was “Anthony Lake.” Lake chuckled. At another point, Clinton mentioned that he was flying to North Carolina that evening for the NCAA basketball finals. Weber slung his arm around the president. “Another tough day at the office,” the lawyer joshed.23
The Jones Day partners had company that memorable afternoon: Art Modell was in the box with them.24 Modell wasn’t known as a bitter man, but he must have been hurting as he sat there, accompanied by an American president, watching as his city celebrated this state-of-the-art stadium, named for another team owner. For the past few years, Modell had been pressuring Cleveland to spend more than $150 million to upgrade the dilapidated Municipal Stadium. (“A crummy old silo with plumbing like a Calcutta sewer,” a local columnist called it.25) City officials had balked at the nine-figure price tag, leading Modell to threaten to sell the team. Even so, he vowed that as long as his family owned the Browns, the team would remain in Cleveland.
About a year later, Modell had a confidential discussion with McCartan. He was in the final stages of secretly negotiating a deal to relocate the Browns to Baltimore, where officials were dangling all sorts of financial incentives. Modell knew his move would be greeted with a flood of litigation—not to mention local fury—in part because it was a clear violation of his public promise. He needed his lawyers prepped for battle.
McCartan called Weber into his office. “Get ready,” the managing partner said. Weber would be in charge of representing Modell.
Weber took over a Jones Day conference room and started getting people organized. The city was likely to sue for breach of contract; the Browns had a long-term lease on the stadium, which Modell planned to abandon. There would be delicate negotiations with the NFL. And there would almost certainly be other problems, though it was hard to predict exactly what form they might take.
The news began to leak in early November 1995. A television station in Baltimore reported that Modell had made a “handshake deal” to move the team there. All hell broke loose in Cleveland. Reporters tracked down Modell at the Browns’ suburban training facility, and he initially declined to comment on the reports, simply saying that he had no intention of selling the team.26 (That was true, but not the point.) The deal was announced at a celebratory news conference in Baltimore days later.
To a sports-crazed city, this amounted to treason. “I always liked Art Modell,” Pogue told me, “but like everyone else in Cleveland, I was devastated.” Modell became a public enemy. Death threats poured in. So did anti-Semitic slurs. (Modell was Jewish.) Modell started wearing a bulletproof vest and traveling with bomb-sniffing dogs.27
As expected. the city sued, accusing the Browns of violating the terms of the team’s leases. In another lawsuit, season ticket holders accused Modell of fraud; his vow to keep the team in Cleveland had induced fans to shell out for season tickets in part because that would ensure that they had priority access to Browns games far into the future. Now there was no future.28
Barely a week after the Baltimore move was unveiled, Jones Day entered the public crosshairs. “I’m for anything that will make Art Modell’s life miserable. Same goes for the hired guns who are aiding him in his treachery,” a Plain Dealer columnist wrote. “I trust Cleveland will long remember the commitment to the community Jones Day is demonstrating by representing Modell.”29 Lawyers and editorial writers called for Weber to resign as president of the Cleveland Metropolitan Bar Association.30 Weber reported getting “serious personal threats”31 from Browns die-hards who left menacing messages on his home answering machine. The NFL hired off-duty Cleveland cops to stand sentry outside Weber’s home, as well as police protection for other Jones Day lawyers and staff. Clients pulled their business.32 The firm’s fax lines were sabotaged.33
In court, Jones Day rolled out different defenses in different venues. Responding to claims that Modell had defrauded people by promising not to move the team out of Cleveland, Weber and his colleagues argued that holding Modell accountable for that statement would “have a chilling effect on comments by team officials to the media, which will be to the detriment of sports fans and the public at large.”34 In the Painesville Municipal Court, Browns fans and local lawyers squared off against some of Jones Day’s most experienced litigators, who flattened them with procedural maneuvers. “It was kind of comical,” one of the fans sighed afterward. “We definitely were overmatched.”35
At one hearing, a battalion of Jones Day lawyers occupied three full rows of the courtroom. “It looked like they sent half the office,” a columnist remarked. “Gazing upon wave after wave of Jones Day lawyers sitting there so earnestly as the billable hours rolled by, one word kept running through my mind,” he wrote. “Ka-ching!”36
Fair enough. But money was only part of the story, at least for Jones Day. The firm by now was accustomed to representing radioactive companies; you couldn’t help but develop a thick skin after years of defending RJR. There was no question of abandoning a long-standing client the way Modell was abandoning Cleveland. Weber, forty-four at the time, adored the Browns; he held four season tickets near the fifty-yard line and had been known to show up to games in orange face paint.37 Now, though, he had a job to do. “The life of a lawyer is that you defend the clients that come to you,” Weber said at the time.38
So when an editor at the Plain Dealer phoned McCartan with what sounded like a threat, he was playing right into Jones Day’s hands. The headline on the front page of the next day’s newspaper, the editor warned, would read: “JUDAS DAY.” By aiding a public enemy, the law firm was betraying its hometown, or so the argument went. McCartan curtly responded that if the editor was trying to intimidate him, it wasn’t going to work.39 “Professionals do not walk away from a client just because the media or those controlling or having access to the media don’t like what they have done,” McCartan explained.40
McCartan and Weber’s defiance in the face of violent protest would become one of the proudest moments in Jones Day’s history—a tale recounted in orientation sessions and other settings to generation after generation of Jones Day lawyers. The “Judas Day” epithet would serve as a reminder of the importance of standing up to politicians and the media and everyone else when principles dictated. There was nobility in sticking up for a years-long client, even as his needs evolved from the resolution of anodyne business disputes to the defense of what felt like a public betrayal.
Over the years, though, the episode would evolve into something more than a unifying point of pride. It would become an all-purpose justification for Jones Day taking on toxic clients and going to great lengths to keep them happy.