Law360 (July 15, 2020, 10:14 PM EDT) -- Houston's fickle clouds churned outside of Stephen Susman's office window as the $2,000-an-hour trial lawyer thundered: "What the fuck's going on here?"
Photo by Kevork Djansezian/Getty Images
"I should have turned it down," he declared in his gravelly Texan drawl, a wry grin creeping across his face. "I shouldn't have accepted that honor because it's like the fucking steak being given to the dog.
"When they bring you a steak, don't eat it."
The award's implication bothered Susman because, in the months before his death, he wasn't anywhere close to finished.
No one thought he was. He routinely biked dozens of miles, tried cases and trained federal judges. He was fine-tuning his diet for a planned epic ride through Tuscany and was plotting out a book about why some aging lawyers do foolish things. The novel coronavirus had only just been discovered in the Wuhan region of China.
Outside his door, the law firm he built was buzzing and its conference rooms were full. There was no indication that the next few months would bring cascading disasters. Susman crashed his bike during one of his routine rides through Houston with members of his firm in April, leaving him hospitalized with severe head injuries. After COVID-19 made its way to Houston, Susman, still hospitalized and making progress in rehabilitation, contracted the virus in late June. He died on Tuesday.
Susman was among a handful of legendary Texas trial lawyers who came to prominence in the pre-Reagan era, when the Lone Star State was a Wild West for plaintiffs. He made a name for himself in antitrust class actions, carving a swath of massive trial victories and settlements through many industries. He was an early adopter of contingency fees, and proved the model with his wildly successful firm.
He was tall and slim, a slow talker and a fast walker. He swore often and creatively, and wore cowboy boots and an American flag pin on his lapel. Susman had the voice of a man who spent many years speaking loudly and chain-smoking Antonio y Cleopatra cigarillos because that's exactly what he did. His friends and colleagues said that Susman was a brilliant and tireless gentleman-warrior who reveled in the combative thrill of litigation.
Among his particular breed of Texas plaintiffs' lawyer, including the likes of Joe Jamail, Susman probably did the most to institutionalize his success, creating an elite litigation boutique profitable enough to pay one-fifth of its associates more than $500,000 a year.
His firm thriving, Susman began 2020 preoccupied with the question of why some accomplished attorneys turn into fools in their golden years.
He had filled a journal with ideas for a book that he wanted to write to explore the question. Rudy Giuliani, Alan Dershowitz and Kenneth Starr would serve as examples. Susman suspected their recent high-profile dramas had to do with a fear that they were losing relevance.
He felt that fear, too. He had been gradually stepping back from his firm. He still tried cases, but he said he avoided disaster by seeking fulfillment elsewhere.
"My [way of seeking] relevance is no longer to try a bigger case, to get a bigger verdict, to be written up," he said in January. "What's relevant to me now is to share my experience."
Long before his accident, Susman had largely passed leadership duties to managing partner Neal Manne. He put more time into running the Civil Jury Project at the New York University School of Law, a group he founded that is dedicated to studying civil jury trials and trying to stem their decline. He taught state and federal judges how to best handle the increasingly rare civil jury trial and split his time between homes in Napa, California, Aspen, Colorado, Houston and New York City.
He scoffed at some BigLaw firms' forced-retirement policies, some of which target attorneys in their 60s.
Such a policy might make sense at firms where elders still pull in a hefty share of equity, regardless of how much work they do. But that's not the case at Susman Godfrey, which recently and facetiously set a mandatory retirement age of 100. There was no need to regulate when the culture is fair and the pay is Darwinian.
Every lawyer eats what he or she kills. If age slows a lawyer, then the lawyer naturally earns less. There are no non-equity partners. Every attorney at the firm gets an equal vote on major decisions like hiring new attorneys or taking on clients or cases. A first-day associate's vote counts the same as the managing partner's.
Susman said the firm's democratic structure and culture was one of his greatest professional legacies. That, and fairness.
"I want them to say, 'He was very fair,'" Susman said. "'He was very honest. He loved to play. Loved to have a good time. Loved to enjoy himself. And he was very proud of doing things the right way. The moral way. The ethical way.' And I have been. I have been."
Susman was the son of two notable lawyers, and father to another.
His father, Harry, was a lawyer in Houston until his unexpected death when Susman was a child.
Susman's mother, 1933 University of Texas Law School graduate Helene Susman, was for decades among a mere handful of women — and even fewer Jewish women — licensed to practice in Texas, where religious housing discrimination was tolerated. She was the first Texan woman admitted to practice before the U.S. Supreme Court.
"I felt I had a lot of responsibility, growing up, to her, and to take care of my brother, and to do what she wanted me to do," Susman said. "Not being successful was impermissible."
The Eagle Scout followed in both parents' footsteps — Yale for college, like his dad, and Texas for law school, like mom, before clerking for U.S. Supreme Court Justice Hugo Black.
Susman had two children and was the stepfather of two more. He said, with no small measure of pride, that he had never been to a kids' soccer game in his life. He brought his children to work instead. His son, Harry Susman, is now a partner at Susman Godfrey.
"I'd bring my children down here to sit at this conference table with paper to color on and give them crayons on a Saturday morning or Sunday, and I think that's why they're decent students today," he said. "That's why my son's a lawyer, for sure."
Susman began his career at Fulbright & Jaworski LLP, where he pulled an infamous prank on the firm. He thought it would be hilarious to send a bartender friend through the firm's job-interview process with a hidden tape recorder and a fake resume that included a stint as a counselor at the fictitious "Camp Succadich."
Some at the firm did not share his sense of humor, he said.
He later became a professor at the University of Texas School of Law for a couple of years. But, as he tells the tale, his first wife — Karen Susman, who died in 1997 — wanted a cushier lifestyle. Since the goal was big money, he decided to give plaintiffs work a try.
He started a new antitrust practice at the personal injury and maritime firm Mandell & Wright PC and brought a young attorney named Gary McGowan on board.
McGowan told Law360 that Susman was brilliant but exhausting to work with, a workaholic who relished the fight. This love of combat is what landed the duo their first windfall.
In 1978, Susman landed a role as the chairman of the plaintiffs' steering committee in a massive antitrust class action alleging that some of the nation's biggest cardboard manufacturers conspired to fix prices.
The Corrugated Container Antitrust Litigation was a big opportunity for a new practice at a small Texas firm. Susman didn't squander it. In fact, his strategy was so aggressive and brutal that federal lawmakers studied the case and considered a bill to prevent anyone else from using it again.
Susman offered the best deals to the first companies to settle — regardless of their market share — then sharply increased the plaintiffs' demands to subsequent settlers. The Mead Corp. did not settle.
Susman maintained in documentation later sent to the U.S. Senate that he offered the company many chances to pay its way out of the litigation.
However, Mead's well-respected counsel, Howrey Simon Baker & Murchison founder Harold Baker, later told federal legislators Susman wasn't telling the truth. According to Baker, Susman never made an offer until he hit them with an outrageous number just before the jury trial began.
On Sept. 5, 1980, the eve of trial, a messenger delivered a succinct letter to Baker:
The plaintiffs hereby offer to settle this case with Mead for $36,500,000. Unless we hear from you, this offer expires at 6:00 p.m. today.
STEPHEN D. SUSMAN, Chairman
Plaintiffs' Steering Committee
That price, which was far greater than what bigger companies had paid to escape the suit, would turn out to be a relative bargain. Mead went to trial and the jury found Mead liable, exposing it to an estimated $700 million in potential liability.
Between the settlements and trial wins against those who held out, the defendants ended up paying $550 million.
The massive sum made Susman an immediate star and garnered him headlines in national newspapers, but it also sparked a fight between Susman's new antitrust practice and the personal injury lawyers who preceded him at Mandell. Susman and McGowan struck out on their own to found Susman & McGowan with their newfound wealth and profile.
McGowan recalled traveling for cases with Susman for their new firm, and long nights poring over documents for depositions in the morning. McGowan usually started suggesting calling it a night around midnight. Susman usually wouldn't relent until after 2 a.m. He was a machine whose daily fuel included at least four pots of coffee and enough cigarillos to build a 5-inch mound in his oversized ashtray.
Over the course of the next decade, the firm grew in size and notoriety, becoming Susman Godfrey & McGowan. But McGowan tired of litigation and the associated stress. He left the firm in 1989.
McGowan admits that he would have made a whole lot more money had he stayed on, but said he probably wouldn't have survived the stress. In a February interview, he said he couldn't imagine Susman ever slowing down.
"Steve will die with his boots on," McGowan said. "A mere mortal would probably retire, and yet he keeps doing it. That's just his nature."
Susman's success in the corrugated container litigation landed him a higher-profile case: Fellow Texan and then-Speaker of the House Jim Wright tapped Susman to defend him against U.S. House Ethics Committee charges that he had accepted and hidden improper gifts.
Wright's ethics trial was among the finest political theater of the pre-Clinton era, and Susman was at the center of it, putting on a sort of jury trial on national television before a congressional committee. News cameras swarmed Susman as he left the Capitol. For him, it was a lot of fun.
The Ethics Committee wasn't persuaded to see things Wright's way and the congressman would ultimately resign, but the publicity did its job. Powerful people began phoning Susman.
Numerous prominent Texas trial lawyers told Law360 that Susman was a joy to work with — or even against. David Beck of Beck Redden LLP knew Susman in law school and worked with him at Fulbright & Jaworski, then went head-to-head with him in four or five trials.
Susman had long maintained that he had a strong belief in the civil jury trial, and he called upon lawyers to be professional, straightforward and efficient to avoid drawn-out pretrial disputes that waste time and money. Beck said that as a result of his professionalism, the trials always went smoothly.
"He was in favor of cutting out the noise and getting right to the heart of the lawsuit," Beck said, "not spend time and expense on this fluff because it didn't really advance the ball at all."
Stephen Susman in 1989 defends then-U.S. House Speaker Jim Wright against ethics charges over alleged improper gifts.
"Steve played a fatherly role at the firm, even if he was a father whose words of wisdom were liberally sprinkled with F-bombs, dares, and raucous laughter," the firm wrote.
"It is no surprise that when Steve was injured bicycling in April, he was with lawyers from his firm, young and old, moving forward, having fun, in the lead, pedaling as fast as he could."
Dick Sayles of Bradley Arant Boult Cummings LLP said that around 2009, Susman destroyed him at trial and handed him the biggest loss in his 45-year career. After the case was over, Susman invited him to his home and the two became friends.
"I've known a lot of lawyers and I've been around a long time, and Steve is a legend and he deserves to be known as a legend," Sayles said. "He was a terrific lawyer, he was the most formidable adversary, and he was a terrific friend."
Tom Melsheimer, a partner at Winston & Strawn LLP's Dallas office, described Susman as "almost indisputably the smartest trial lawyer who ever lived," and a "Shakespeare when it came to the use of the F-word."
He worked on an antitrust case with Susman maybe a decade ago. They rented a ballroom in a middling hotel in a gritty part of Dallas to use for a mock trial.
Melsheimer recalled feeling a little strange about dragging the iconic trial lawyer to such an inglorious venue. High school students dressed in prom attire were milling about as he and Susman honed their arguments, Melsheimer said.
"I said, 'Well, I guess this isn't what you expected to be doing back 10 years ago, that you'd still be sitting around in these second-rate hotels doing a mock trial on a Saturday afternoon,' because that's how I felt," Melsheimer said. "He turned to me and said, 'No, I wouldn't want to be anywhere else.'"
Melsheimer said he didn't detect a hint of sarcasm in Susman's voice.
On that stormy afternoon back in January, Susman said he almost called Rep. Adam Schiff, D-Calif., to offer his pro bono services in the impeachment trial against President Donald Trump.
"I was tempted to do it," Susman said. "I mean, it's the biggest trial in decades. And I know the players in it — Nancy [Pelosi] and Adam. But I didn't."
Susman said he stayed away from the impeachment trial at the urging of his wife and fellow Democrat, Ellen Susman. She warned him that if he wasn't careful, he'd become Chapter One in his own book about old lawyers becoming fools.
"The difference between me and Giuliani is I have a wife that I love dearly and I've been married to for a long time who stops me," he said. "That's probably the difference."
As thunder rumbled outside his office, Susman wondered aloud about the premise of his book. He said the sins of people like Giuliani, Dershowitz and Starr stemmed from leaping too recklessly back into the arena and clawing too ravenously at their last chances for relevance.
"Sitting here and talking to you, this is interesting. I'm not going to come out so harsh on these people who fall into temptation because I see too much of me in them," he said. "I mean, talking about it, you then begin thinking, so, if it gives them enjoyment for the last 10 years of their lives, and it was just the most fun thing they could do, who can say it was wrong? You'd have to be pretty judgmental.
"You can say well, it destroyed their reputation," he said. "Then, I guess, that leads to the question of, well, how important is it? When you're dead, your reputation may mean something to your family, obviously. To your law partners. To your faculty colleagues. To something like that. To you? It doesn't mean shit to you. In a way, I may have been too harsh in my thinking about these people."
Susman himself had just a few weeks earlier dressed up like Richard Simmons to lead a cycling class for the firm's partners, many half his age. It certainly wasn't his most dignified look.
"Why'd I do it?" he said. "To be the center of attention? To have people laugh at me? To show younger people I'm still with it? To show I'm a good sport? Or just to have fucking fun?"
Susman's voice softened and he sank back into his chair, turning his gaze toward the ceiling.
"If what they are doing gives them great enjoyment and fun — you know what? I suspect it does," he said.
"I suspect they love this shit. That's why they're doing it."
Steve is survived by his wife Ellen Susman, his children and their spouses, Stacy and Tom Kuhn, Harry and Karen Susman, Whitney and Matt Gordon, Amanda and Matt Shiffrin, and his eight grandchildren, Nicholas Kuhn, Miles Kuhn, Rachel Kuhn, Sam Susman, Ana Susman, Jack Susman, Charles Gordon and Isla Gordon.
--Editing by Pamela Wilkinson and Jill Coffey.
Correction: A previous version of this story incorrectly described Susman Godfrey LLP's partnership structure. The error has been corrected.
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