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Michael Attanasio is partner-in-charge of Cooley LLP's San Diego office. He is vice chairman of the firm's national litigation practice. He specializes in white collar defense and complex business litigation. He has represented individuals and corporations in proceedings and investigations being conducted by various United States Attorney's Offices, the U.S. Securities and Exchange Commission, the FBI, congressional committees, and Major League Baseball.
Q: What is the most challenging case you have worked on and what made it challenging?
A: Undoubtedly, the trial defense of Roger Clemens presented unique challenges at every turn. From day one, we confronted overwhelming public sentiment that Roger was guilty. This was due to a poisonous combination of guilt by association and a fundamental misunderstanding in the public of Roger's career arc and his accomplishments. This dynamic was exacerbated by the drumbeat of negative media coverage about performance-enhancing drugs, athletes in general and Roger in particular. It was grossly unfair to him, and for us it made effective jury research and voir dire critical.
During trial, we overcame these challenges by presenting an accurate counternarrative about Roger's character as a ballplayer and the legitimate reasons for his extraordinary performance throughout his career. At the end of the day, I hope that when a man repeatedly says, "I didn't do it," people will pause for a moment, wait for the evidence and consider the possibility that just maybe he didn't.
Q: What aspects of your practice area are in need of reform and why?
A: Although many prosecutors and their offices have made considerable strides in complying with the letter and the spirit of Brady, there is more work to be done. And the single biggest way to get to where we need to be is for judges to be watchful and vigilant on this issue. There are a handful of recent opinions and true innocence cases that finally have spurred a recognition that nondisclosure and "needle in the haystack" disclosures are not right. All we need is a level playing field and the case can be resolved or tried fairly. Nothing more, nothing less.
Q: What is an important issue or case relevant to your practice area and why?
A: As mentioned above, recent published and unpublished decisions about the government's Brady obligations are critical because judicial scrutiny has sparked policy and practice changes for prosecutors across the country. The U.S. Supreme Court's decision in Skilling was also important because it not only curtailed the reach of the "honest services" fraud statute specifically, but also because, more generally, it signaled an increasing judicial willingness to curb the use of vaguely defined statutes to criminalize business conduct properly addressed through civil or administrative litigation.
Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.
A: Rusty Hardin [of Rusty Hardin & Associates PC]. Rusty is masterful at connecting with individual jurors, conveying the key defense themes by telling a story, and going for the jugular on cross-examination.
Q: What is a mistake you made early in your career and what did you learn from it?
A: Like many lawyers, early in my career I was too aggressive and failed sometimes to mind the adage that you catch more flies with honey than vinegar. You may conduct a technically impressive cross-examination, but if you do so in a way that makes the jury sympathetic to the witness, you probably haven't accomplished your objective.
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