Fire & Ice

Fire & Ice

By David R. Corder

Associate Editor

Anyone who observes Barry Cohen knows the big-gun Tampa lawyer digs deep for the strategic advantage. In defense of the accused, that advantage may be a faulty search warrant. It could be compelling evidence of a fraud in a civil action. Or it just may be the makeup of the team of lawyers he assigns to a case.

That personnel makeup is exactly what Cohen had in mind when he assigned Fred Zinober and Lyann Goudie to represent Lai Chau in a negligence action against the owner and operator of Tampais Remington apartments. About three years ago, two brothers abducted Chau from outside her apartment, stole her car and drove her to an isolated spot behind a school. One of the pair shot her in the head, in the face and then in the neck. They left her for dead. Only with heroic effort did she survive.

In mid-December, almost three years after the crime, a Hillsborough County jury found the property owner and its management firm guilty of negligence. Zinober and Goudie convinced the jurors the defendants touted safety as an amenity to the 23-year-old college student but failed to deliver on their promises. The jury awarded Chau nearly $5.7 million in compensatory damages, including $4 million in non-economic damages for pain and suffering.

The next day the jury dropped a bombshell on Brentwood, Tenn.-based Southstar Equity LLC, the apartment owner, and Brookside Properties Inc., the management company. In a clear message: The jury awarded Chau $10 million in punitive damages.

The defendantsi Atlanta-based attorney, Earl iBillyi Gunn, refused to comment for this story. But immediately following the verdict, he told a daily newspaper reporter he was disappointed because Hillsborough Circuit Judge Sam Pendino had excluded evidence that would have benefited his client. Gunn represented a company controlled by two influential Nashville-area businessmen, Andrew Higgins and Nelson C. Andrews. A venture capitalist, Higgins is president of Commerce Capital LP, a U.S. Small Business Administration investment company. Andrews recently served as a gubernatorial appointee and chairman of Tennesseeis state tax study commission. He also serves on Vanderbilt Universityis board of trust.

It was a decisive victory for Zinober, 52, and Goudie, 45, the Cohen Jayson & Foster PA trial lawyers who are as different as night and day. She is fiery, aggressive and sometimes impulsive, a trait she attributes partly to her upbringing in a large Cuban-American family in Miami. He is thoughtful and methodical, a byproduct of conservative Long Island, N.Y., heritage. But she says he also has a tactical ability to ice the opposition with his calming manners.

Cohenis decision to pair these two experienced lawyers was a smart, yet, unusual move, says Tampa trial consultant Harvey Moore, who assisted the team with trial preparation and jury selection.

iThe usual model is often age and or gender graded: one senior attorney and a junior assistant,i Moore says. iNobody ever gives it a second thought. Combining Lyann and Fred, both highly talented in their own rights, doesnit look like a smart move until you realize the advantage, which comes from the combined talent.

iIndeed, Lyann and Fred could be the legal eOdd Couple,i oil and water, which mixed only because of their enormous respect for each other, the ability to set aside egos and focus on their commitment to the client,i Moore adds.

The decision to combine the talents of these two lawyers fulfilled a pure business need, Cohen acknowledges. It was the strategic advantage he sought.

Proving the facts

Soon after the crime, Lai Chauis family asked Seminole attorney Brian Johnson to represent her in a civil action against the property owner and the management firm. But Johnson, a solo practitioner, realized that taking the contingency case would cause a hardship on his practice. He referred it to Cohen.

Cohen assigned Kevin Kalwary, the firmis chief investigator, to research the facts as part of the strategy to calculate the risks of litigating the case.

iKevin Kalwary did a tremendous amount of investigation, which is one of the reasons why Brian referred (Lai Chau),i Zinober says. i(Johnson) recognized Barry had the resources to do the type of leg work that needed to be done before the case was filed.i

Zinober joined Cohenis firm in April 2002. Shortly after, Cohen assigned him to Lai Chauis case. Zinober, a board certified criminal trial lawyer who had served as an assistant prosecutor in the Pinellas County State Attorneyis Office, accumulated civil trial experience as a partner in the Tampa office of Shumaker Loop & Kendrick LLP and prior to that at what once was Tew Zinober Barnes Zimmet & Unice PA in Clearwater.

In the 1990s, a Pinellas judge appointed Zinober to represent Oba Chandler, who was eventually convicted of three counts of first-degree murder in the slayings of an Ohio woman and her two teenage daughters who were vacationing in Florida. Chandler was sentenced to death.

iI was paid $100,000 for that case,i Zinober recalls. iI probably netted somewhere between $6 to $7 an hour, and Iim probably underestimating the hours I put into that defense. It just consumed my life for a period of about nine months.i

It was a highly publicized case and one that won Zinober acclaim in the legal community despite the loss.

When Chandler appealed his convictions, claiming incompetence on behalf of Zinober, Pinellas-Pasco Circuit Judge Susan Schaeffer wrote: Zinober igave Mr. Chandler all he had to offer, and he had plenty to offer. He was and is one of Pinellas Countyis finest lawyers,i according to a 2001 St. Petersburg Times article.

Goudie joined Cohenis firm two months after Zinober. She was a former prosecutor in Miami-Dade and Hillsborough counties, who switched to criminal defense law in the late 1990s. Over a period of about three years, she won acquittals for three unrelated defendants in separate trials against first-degree murder charges, one as a solo practitioner and two as a member of the Hillsborough Public Defenderis Office.

In defense of Deandre Williams, Goudie as a solo practitioner won a seven-minute acquittal, she says, adding, i(The judge) appointed me in December 1997, and we went to trial in February 1998. I believe in speed. He was incarcerated, and he didnit do the crime. We needed to go to trial.i

Strategic advantage

In March 2003, Cohen and Zinober had enough confidence in the Lai Chau investigation to file the negligence action on her behalf. Soon after, Cohen assigned Goudie as a co-counsel.

Unlike Zinober, however, Goudie had no civil trial experience. The Lai Chau lawsuit would be her first.

iBarry recognized a couple of things,i Zinober says. iOf course that our styles would mesh. But also importantly, because of the fact the case had a lot of criminal law overtones to it, it seemed like a perfect thing for Lyann to get involved in it. Thatis the reason Barry felt that we would be a really good match in the case.i

But Zinober and Goudie recognized their litigation styles also differed. During initial strategy sessions, the two discussed those differences and how they could best use them to Lai Chauis advantage.

iWhen (Zinober) had a suggestion, nine times out of 10 I adopted it,i Goudie says. iWhen I had a suggestion about the case itself nine times out of 10 he adopted it. We had very healthy conversations where we had a disagreement and agreed either on his way or my way or some middle ground on both of our decisions.

iSo as far as case presentation o how to put on the witnesses, what we were doing and what we would say o that wasnit an issue at all,i she adds. iIt was simply in the style; in that heis a nice guy and Iim not a nice guy.i

Despite their differences, Zinober says each of them possessed what he considers a critical common characteristic.

iWhat we have most in common is intensity,i he says. iTrying a case with Lyann was different for me than any other experience I have had in that regard, because itis the only time I can think of, at least in the last series of years, that Iive worked with somebody who at least matched me if not exceeded me in intensity.i

There was friction at times, Zinober says. It had more to do with quirks and idiosyncrasies. For instance, he has to have an exercise workout and a cappuccino every morning and afternoon o no exceptions. Goudie grouses at his unwillingness to reschedule his routine to accommodate early morning travel plans.

Goudie is particular about hotel bedding. She refuses to stay at less than upscale hotels. iI have sleep issues,i she says. iIt has to be 100% cotton with at least 400 thread count or I canit sleep on it.i

Zinober adds: iThe only thing that is important where I stay is thereis got to be a gym and thereis got to be a Starbucks nearby. Other than that I could care less.i

Profitable decision

Cohenis decision to pair Zinober and Goudie paid off not only in monetary terms but even more so in terms of a precious commodity o time.

iWe got this case to trial in less than 18 months,i Zinober says. iWe hit hard and we hit fast. We got the judge to allow us to move forward on punitive damages (in June 2004), which is pretty much unheard of. Our own experts were shocked we were approved to seek punitive damages.i

Neither Cohen nor Zinober nor Goudie would talk about the distribution of the jury award between the law firm and Lai Chau. An appeal is likely, Goudie says, and the firm will handle the appeal in house.

Unlike other law firms that work on contingency fees, Zinober and Goudie work strictly on salary. Neither of them professes to know anything about how Cohen will split the fees.

iI donit know what it is to be honest with you,i Zinober says. iThat really is Barryis call. Weire pure trial lawyers in that regard. Our function is to try the case, to put it together and try it. The business end is Barryis.i

As for any financial gain beyond her salary, Goudie says: iI can tell you Iim not aware of one. What I would say about that is if we got a zero (award) Iid still get my paycheck. (Cohen) would be out the cost money and the money heis been paying us all along. Assuming he didnit fire us, we would still be getting our paychecks.i

The firm invested about $300,000 to cover costs for expert witnesses, depositions, consultants and travel, Zinober says.

On average, Florida personal injury law firms earn about 33% of the first $1 million and up to 40% of the amount in excess of $1 million. That is about $6.2 million out of a jury award of about $15.7 million.

As for rewarding the two lawyers, Cohen says: iI donit discuss the pay structure around here, but Iim very mindful of the effort that they made on behalf of the clients and the results they achieved for the client and the firm.i

Discussion about attorneysi fees bothers Zinober and Goudie because they say it overshadows the juryis message.

iThere is one positive thing that came out of the trauma this young woman experienced,i Zinober says. iThe message is (apartment property owners) need to spend the money that needs to be spent to protect these residents. Thatis really what the message was. Thatis what this jury said.i

At trial, the pair introduced evidence that the defendants could have made security upgrades at little or no cost. For example, local law enforcement in cooperation with Tampa Electric Co. offers the Crime Prevention through Environmental Design program. The free program offers businesses and residents crime prevention and lighting audits as a way to minimize crime.

iWhat really made the difference (to the jury) is it would have cost so little to make the changes that were necessary to prevent this exact incident from happening,i Zinober say. iItis a matter of these people learning whatis available, very often free of charge, and taking that responsibility to learn whatis available. Thereis a marginal cost. Spend the marginal cost.i

Trial testimony also revealed it would have cost Southstar Equity only about $12 per apartment per month to cover the cost to create a manned security presence, Goudie says.

iThat was the positive social message,i Goudie adds. iThe positive social message is look at whatis available. How much is it going to cost to protect these people? Itis going to come back in the end to benefit (the property owner) in terms of better profits. Then if a type of crime like this happens, the apartment owners are in a defensible position if they do the right thing.i

So, Zinober asks: Why is it even relevant what Cohen reaps from contingency fees if the jury persuaded this company, which owns and manages apartment properties in 11 different states, to improve their security procedures?

iThatis the message these jurors sent,i he says. iThat was the whole idea of punitive damages. Those jurors spoke clearly, concisely, loudly and correctly. Thatis the message they were trying to tell the community. Somehow that message seemed to get lost in how much lawyers make.i