Phil Gainsley
Minnesota Litigator’s past attorney profiles have highlighted Minnesota civil trial lawyers with niche practice areas, where the lawyers have established reputations of excellence but not widespread reputations, given specialization of their practices (Mike Flom, Gray Plant’s General Counsel, Jim Behrenbrinker, civil rights/excessive force cases, John Halpern, collections, Elliot Olsen, foodborne illness litigation, Eric Cooperstein, “ethics maven“).
With this model in mind, I went to speak with long-time Twin Cities litigator, Phil Gainsley, of whom I had heard a great many accolades but whom I had not ever come across. I had specifically been told that Phil’s expertise was in plaintiff’s side legal malpractice cases. That’s true. But it is the tip of the iceberg.
Phil, there are few lawyers in the Twin Cities who have developed the niche expertise that you have, attorney malpractice cases?
Actually, though I have taken on quite a number of such cases, my practice is far more broad than that. I’m really a generalist in civil litigation. I handle a wide variety of matters for Minnesota businesses and individuals.
So you would handle intellectual property litigation, real estate litigation, ERISA litigation and so on?
Sure. I’ve handled cases in all of these areas and then some. Mind you, it is critical that I associate myself with others — experts in particular areas. For example, for patent litigation, I would clearly need to have a subject matter expert, in addition to the normally-required claims expert, to pursue such litigation. But that’s not difficult and I have done that in many cases.
Tax cases? Regulatory rate-setting matters?
Well, no. There may be some narrow areas, like that, where I have not developed a practice and I don’t think I’d handle such cases. But as a special master or referee I’ve handled certificate of need proceedings. I love doing things like that because drawing findings is an art and as a fact-finder I did a lot of that … also as an eminent domain commissioner.
You started your practice at Gainsley, Squier and Korsh right out of law school in 1965. Quick work, being the first named partner at a law firm in your first year of practice!
No, actually, that was my father. I graduated law school and worked for my father. When he had a heart attack, I needed help, and Tom Squier came over from Leonard Street & Deinard. Then Richard Korsh joined us, and later Jim Rosenbaum [who went on to become the U.S. Attorney for the District of Minnesota and then judge of the U.S. District Court for the District.], Also, between Fritz Mondale’s terms as U.S. senator and vice-president, his aide Michael Berman was with us. Mike now lives in D.C. where he remains very active in Democrat politics. Jim now does mediation.
Back then, as a Jewish lawyer, I get the sense that your options were limited as to where you could work and many doors, now open to Jewish lawyers, were closed back then?
Well, I didn’t feel that, though I never had to look for work because it was a given that I’d be joining my dad. There certainly were some law firms that were identified as more accepting of Jewish lawyers (Maslon, say, or Leonard Street) than others. But, no. I had the sense that Jewish lawyers were at all of the large firms back then to one degree or another. I knew of Jewish colleagues at firms that were not per se “Jewish firms” like Phil Garon, at Faegre & Benson, for example, who was recently honored by the Cardozo Society. Back then, Faegre was known not to have many Jewish lawyers, but Phil obviously thrived there for decades. And even before he was there, there was Mitch Goldstein, a brilliant transaction-attorney, and a very good friend of mine, who died way too young.
How is it that you left your father’s firm after 17 years, in 1982, to join Moss & Barnett?
By that time, my father and Tom Squier passed away. Jim Rosenbaum was off on his years of public service. Mike returned join Fritz Mondale’s VP staff around that time. So GSK’s days were over and I went over to Moss & Barnett. I remember the call well: It was from Jim Hennesey, with whom I had been in an extremely contentious divorce proceeding. But that’s the way things were then: At 5:00 or at the end of the case, the hostilities ceased! Jim called, and I joined Moss & Barnett for about a dozen very happy years.
Twelve years, then, at Moss & Barnett, tell me about that experience.
Well, I very much liked my time there. One thing you might find interesting: each year the firm, understandably, would want to get a feel for the firm’s prospects and outlook for the year to come. So firm representatives would come to me and ask me what I predicted I would be able to bring in, in terms of billings. I would tell them “zero,” because then, whatever I was able to bring in would exceed my prediction. The nature of business litigation, especially contingent-fee, makes predicting work flow and, therefore, revenue, difficult ,to say the least. They never liked my answer, and maybe I suffered the consequences for it, but it was the honest answer.
Why did you leave Moss & Barnett?
Dan Shulman, a colleague at another law firm (Gray Plant Mooty (“GPM”)), had an interesting case for Pam Postema who alleged gender discrimination against the Major League Baseball. She was an outstanding umpire, who worked Spring training games and even an All-Star game, but was never promoted to the “bigs.” Dan and I worked on it together, while with our respective firms, and when we succeeded with it, he left GPM and I left Moss & Barnett, and we joined forces. He has since returned there, and for the past 18 years I’ve been totally on my own.
By the way, I still remember settling the umpire case (Postema v. MLB, et al.) over a sandwich at the Lexington Ave. Deli in New York. I was in New York for something else, but thought I’d call the lead attorney for the defendants, for lunch. After each of us finished our hot pastrami sandwiches, we decided to split a third, and it was over that that we settled … all on a “greasy” handshake. At the depositions in that case were the “who’s who” in baseball. And my client’s deposition was great: Where else would a question begin, “Suppose there’s a runner on third, with two out…?”
Then, I suppose, after that case wound up and you and Dan went your separate ways?
The firm that Dan and I started up evolved, Dan’s sons and a daughter-in-law started with the firm and others. I decided at a certain point to go out on my own.
And how does solo business litigation suit you?
It’s great. I love it! I love working learning the substantive areas. There is, of course, a lot of freedom to take what I want and to decide the course of cases. If a case gets to a certain size — maybe only three banker’s boxes of documents, actually — there are resources, like Relativity, that solos like me can use so we can effectively handle large volume cases that would not have been feasible before this kind of technology came along. Technology is the equalizer. And I love seeing cases “mature,” as the documents are filtered and the true story emerges.
And, of course, we have to touch on your avocation in this interview. I understand that you are a huge opera buff.
Actually, all classical music. I was on a national radio program from the Metropolitan Opera House for their Saturday performances for 30 years but my love of music is broader than that and covers all classical music. It’s my “golf game,” in terms of an avocation.
Then, I have to ask you your views of the current lock-out at Minnesota’s two orchestras, the St. Paul Chamber Orchestra and the Minneapolis Symphony.
It’s just a tragedy for all, for both sides, the orchestra organizations and the musicians. Minneapolis has been a bastion, a strong-hold, of a vibrant arts community for so many years. But we now just do not have the audience base for live classical music that we used to have. Again, with technology, we can listen to high quality audio on tiny relatively inexpensive devices. It is hard to get people to pay $60-$70 to attend a concert, plus parking, plus dinner, plus baby-sitter. It’s gotten to be a tough sell, and both labor and management need to find ways to accommodate the change.
Any closing thoughts for Minnesota Litigator readers?
Litigation, too, is changing, influenced somewhat by the media, but also by the popularity of ADR. While I encourage its use, my practice is to be prepared to try the case before I settle it. I seldom wasn’t to do ADR until I conclude at least preliminary discovery. Only when I’m totally prepared to try a case do I know its strength and weaknesses. And I try to get into court as frequently as I can to prevent becoming “rusty.”