David Berg

David Berg, Trial Lawyer

David Berg is a member of the Texas and New York State Bar Associations and the founding partner of the predecessor firm, Berg & Androphy.

During his storied career, David has tried and won jury verdicts in virtually every kind of criminal and civil case.

Over the years, local and national publications have recognized David as one of America’s leading trial lawyers. Best Lawyers in America, the gold standard of lawyer ranking, has recognized David for decades in eight categories of litigation: Bet-the-Company, Commercial, White Collar Criminal Defense, Antitrust, Patent, Real Estate, Securities, and Plaintiffs Personal Injury. The National Law Journal included him in its “Who’s Who of Criminal Defense Nationwide” and named him to its annual list of the nation’s “Top Ten Civil Trial Lawyers.” In a profile, Texas Monthly placed David in the same league as his mentor, Richard “Racehorse” Haynes, then one of America’s most famous lawyers. Another legal publication, Lawdragon, added David to its “Lawdragon 500 Guide Hall of Fame,” stating, “This lawyer’s personality is almost as large as his estimable record of success, from a Supreme Court victory at 28 to his countless wins at the outstanding firm he built.”

2000: $513 million settlement.

In the early 1990s, Marriott Corporation sold Courtyards by Marriott and other hotels to dozens of limited partners (“LPs”), failing to disclose that the LP interests were already “underwater” $31 million on day one or that Marriott was up $131 million, also on day one. Over the years, those numbers grew worse for the LPs and bigger for Marriott. Led by Yankee baseball great Whitey Ford, the LPs retained David, who filed suit in 1996 against Marriott, alleging fraud in the inducement to buy the hotels.

Almost four years later, the sides conducted a “summary jury trial,” in which the lawyers select a jury in the jurisdiction where the case is filed, present opening statements, essential evidence,  excerpts from videotaped depositions, and closing arguments. Under summary jury protocol, the jury rendered a confidential, advisory verdict so that the Parties learn from the results. In 2000, Marriott settled with the LPs for $513 million, including $79 million in forgiveness of management fees owed, leaving $434 million in cash.[1] For further information, go to the archives of  The New York Times, Washington Post, Associated Press, Chicago Sun-Times, Houston Chronicle, and CNN.com for Friday, February 25, 2000.

[1] The records of the exact disbursement are no longer available, so from memory, out of the $434M cash settlement, (1) the first  $200M went directly to the LPs, reimbursing them dollar-for-dollar for their original investment, leaving (2) $234M, which, after deducting $6M in litigation-related expenses and $75M in legal fees under the 1/3 contingency, leaving (3) $153M, which was distributed to the LPs.  In sum, the LPs received a total of $353M or 81% of the cash settlement and 84% when factoring the forgiveness of debt.

1995: David Secured a $250 Million Confidential Jury Verdict in a High-Stakes Mass Action Against Marriott

Settled a mass action against Marriott Corporation, a suit filed on behalf of limited partners in the Chesapeake Limited Partnerships, alleging fraud in the inducement and millions of dollars in damages.

1998: David Won a $52 Million Jury Verdict for Acadia Partners in a Corporate Fraud Case

As lead counsel, David obtained a jury verdict in district court in Orange County, Florida piercing the corporate veil of a Florida land developer, resulting in a $52 million recovery for the client, Acadia Partners, L.P., the private investment group of Texan Robert Bass. The suit, filed against a Florida real estate developer and his law firm (which settled prior to trial), alleged fraud in inducing Acadia to invest in his business. Verdict affirmed on appeal.

2017: David Leads Berg & Androphy Team to Trade Infringement Victory For Comedy Legend Dan Aykroyd’s Crystal Head Vodka

From Law360: “After roughly four hours of deliberations in [the Central District] of Los Angeles, the eight-person jury on Wednesday delivered a unanimous verdict in favor of Crystal Head maker Globefill Inc., finding that defendants Elements Spirits Inc. and its founder Kim Brandi had intentionally infringed Globefill’s trade dress by making and selling KAH brand tequila. The jury found that KAH, which comes in Day of the Dead-inspired skull-shaped bottles, was likely to confuse ordinary consumers into thinking it was made by, or affiliated with, Crystal Head, and had been designed with this objective in mind.”

For a detailed article about the case and its two “Perry Mason” moments, go to: https://abovethelaw.com/2017/03/boutique-bests-biglaw-in-booze-bottle-battle/

March, 1991: Berg tries his first civil case; obtains a record verdict.

After twenty-two years of practice, David tried his first civil case in 1991, a wrongful death action on behalf of the survivors of Sharon Elaine Lemon, a young women struck and killed by a Missouri Pacific train as she drove across the four sets of tracks at the MLK crossing in Sweeny, Texas a small African American community in Brazoria County. “The MLK crossing had no signals, flashing lights, gates, or flagmen despite numerous complaints . . . from Sweeny residents.”[1]  On the night she was killed, MoPac illegally parked a string of tank cars that ran a half mile long on the track closest to the intersection Sharon entered, so close she could not see the oncoming train.

[1] Missouri Pacific Railroad Company, d/b/a Union Pacific et al. v Dewey Lemon, Individually, and as Next Friend of Alfred DeJuan Franklin, et al. 861 SW 2d 501 (1993) (Texas Court of Appeals—14^th District)

Prior to trial, MoPac’s counsel took David aside, draped his arm around his shoulders and said, “Look, no Blacks will get any money from an all-white jury in Brazoria County. I want to do you a favor. I am offering you $100,000.”  David’s response was not very nice. After a two week trial, an all-white jury in Brazoria County returned a $12.2M verdict, including $10M as punitive damages, a record for that county and disabusing defense counsel, one would hope, of his views about all-white juries in Brazoria County.[1]

This case also made its way into a NY Times article on July 1, 1991, “Navigating the Murky Laws of Rail-Crossing Safey,” which forced Missouri Pacific to install an automatic gate at the crossing and, Berg believes, to settle the case .

[1] If a law firm includes a large verdict on its website, the Texas Rules of Professional Conduct require that it also disclose the actual amount recovered and the amount for legal fees and expenses, and the amount distributed to the client. However, while the Lemon case did settle for an amount less than the verdict, the settlement is confidential and no information about disbursement of the recovery can be disclosed without breaching the settlement agreement.

2005: Shutting down toxic emissions at two polluting Texas companies.

Throughout his career, David has maintained a pro bono practice, including bringing suit on behalf of the City of Houston in 2005 against Texas Petrochemicals, seeking to shut down its emissions of the carcinogen 1,3 butadiene. A few days after filing, Texas Petrochemicals agreed to install recapture equipment, which, once up and running, reduced the emissions to statistically insignificant levels.

Soon after settling that suit, the City Council authorized Berg to file suit against a company that burned massive numbers of tires, showering  toxic chemicals on nearby low-income neighborhood. The next day, the company packed up and left town.

1981: The Southern Poverty Law Center (SPLC) and Berg & Androphy shut down Klan violence against Vietnamese fishermen along the Texas Gulf Coast.

In 1980, David and Morris Dees, founder of the SPLC, filed suit on behalf of the Vietnamese Fishermen’s Association against the KKK and its Grand Dragon, Louis Beame, seeking to end their violence against Vietnamese fishermen outfishing their white counterparts on the Texas Gulf Coast. Following an evidentiary hearing, US District Judge Gabrielle McDonald entered a permanent injunction shutting down the violence and the Klan’s paramilitary training in deep East Texas. The injunction held. The hate continued. The Klan fled Texas for Idaho, where they joined forces with other neo-Nazi groups.

During the proceedings, Beame and his henchmen threatened to kill David and Morris, a story told in vivid detail in Kirk Wallace Johnson’s excellent 2022 book, The Fishermen and the Dragon (Penguin). See, also, David’s trial skills book, which also discusses the case, The Trial Lawyer: What It Takes To Win, Second Edition (2018 American Bar Association)).

1975 and 1979: Two acquittals in cases asserting the battered wife defense for the first time in Texas.

In 1975, David tried the first of two cases in which he successfully asserted the nascent battered wife defense. In that case, T.M. was indicted for attempted murder, having bashed her husband’s skull in with an iron skillet while he slept. Once she took the stand, David asked her to explain why she waited until he was asleep to hit him, expecting her to say that  he threatened to kill her, that he beat her, and that she feared for her life. Instead, she shouted, “Because I wanted to kill the son-of-a-bitch.” Imagine her lawyer’s surprise. Nonetheless, the jury acquitted her, a harbinger of the growing understanding of domestic violence.

In 1979, David tried a murder case that found its way onto the front page of the NY Times and helped catapult the battered wife defense into a mainstay of American criminal justice. The Defendant, Diana Barson, admitted that she shot, killed, and dismembered the body of her husband with a chain saw, placed his body parts in five garbage bags, threw them in the trunk of her car, and fled to her parents’ ranch in California, where she intended to bury his body. Instead, they turned her in, and she was arrested as she attempted to commit suicide under an olive tree.

The trial lasted just eight days. The jury acquitted Ms. Barson in less than two hours. For a fuller explanation, go to The New York Times article at https://www.nytimes.com/1979/05/07/archives/right-of-women-to-selfdefense-gaining-in-battered-wife-cases.html

October 1991: Exonerating Houston’s “Merchant Prince”.

Later that year, in a nationally publicized trial, David represented Houston’s “Merchant Prince,” Robert Sakowitz, scion of a multi-state retailing empire that failed during the 1980s collapse of oil prices, bankrupting the Sakowitz Brothers chain. Robert’s brother-in-law, Oscar Wyatt, a ruthless oil and gas centimillionaire, hated him for a variety of petty reasons not relevant here. What matters is that he put his wife, Lynn Sakowitz Wyatt, Robert’s sister, up to (1) transferring her interest in the family estate to their four sons, (2) one of whom then filed suit against their Uncle Robert, on behalf of himself and his brothers (3) accusing Robert of breaching his fiduciary as trustee of the family estate by mismanagement and by converting—stealing—estate assets. The trial lasted a little over a week and ended with a verdict clearing Robert of each allegation and humiliating the angry Wyatt family.

For an entertaining read about the trial written by Mimi Schwartz of Texas Monthly, including those petty reasons Oscar hated Robert, go to: https://www.texasmonthly.com/arts-entertainment/river-oaks-77019/

1970 – Landmark Victory in U.S. Supreme Court.

Ironically for a trial lawyer, David began his career with an appellate argument—in the United States Supreme Court. Less than three years into the practice, David argued and won a unanimous reversal of his client’s unjust conviction and prison sentence for his part in an anti-Vietnam protest—and has continued fighting injustice for more than fifty years since.

(To hear David’s Supreme Court argument, go to: https://www.oyez.org/cases/1969/628; See also Justice Hugo Black’s opinion for the Court in Schacht v. United States, 398 U.S. 58.)

2022: You can’t win ‘em all.

In 2015, Berg & Androphy, led by David, filed suit on behalf of Nord/LB, a German Landesbank, against Lynn Tilton, the self-described “Diva of Distress” and her firm, Patriarch Partners, alleging that she fraudulently induced them to invest $45 million in Patriarch Partners collateralized debt obligations (CDOs).  At trial (delayed until 2022 by the Covid pandemic), the bank argued that only Tilton benefited, and at the investors’ expense, and sought $45 million in damages. The New York Supreme Court jury disagreed, ruled 5-1 against the bank, which resulting in a take-nothing judgment.

Berg is an Author and Essayist

David has authored two books, including Run Brother Run (Scribner 2013), voted by Guardian readers as Best Summer Read, and The Trial Lawyer: What It Takes to Win, Second Edition (ABA 2018).  In addition, he has published dozens of articles and essays on legal, political, and personal topics in such publications as The New York Times, Los Angeles Times, Atlanta Constitution, Newsweek Magazine, and Litigation Magazine.

Memberships

David is a Fellow of the American College of Trial Lawyers, International Academy of Trial Lawyers, and an Advocate of the American Board of Trial Advocates (ABOTA).

Teaching and Lectures

David is a frequent CLE lecturer on trial skills for organizations such as the ABA Litigation Section, the Texas Bar Association, and the American Academy of CLE. He participates annually in the American College of Trial Lawyers Diversity Training Program.  He has also taught trial skills and participated in discussions and seminars on the subject at various law schools, including Georgetown, The University of Texas, Fordham, the University of Houston, and the University of North Dakota.  He has spoken most recently for a second time to the Southwest Regional Chapter of ABOTA at its annual meeting in Santa Fe, NM, about the trial skills of Richard “Racehorse” Haynes and Joe Jamail.

Honors

In 2014, David received the ADL’s (Anti-Defamation League) Karen H. Susman Jurisprudence Award, presented annually to an outstanding member of the legal community who exhibits an exceptional commitment to equality, justice, fairness, and community service.

In March, 2022, the Briscoe Center for American History announced that David had donated his papers, stating in its release, “his papers are an important addition to the Center’s legal history and social justice collections.

See, the press release, at https://briscoecenter.org/about/news/papers-of-renowned-attorney-david-berg-donated-to-briscoe-center-for-american-history/

Personal Life

David is married to Kathryn Page Berg, a lawyer and theologian, who holds an M.Div. (Masters in Divinity.) His two sons, Geoff and Gabe, are both trial lawyers.  His daughter, Caitlin works as a producer on Broadway.