Get in the Game Podcast from Jury Analyst

Saving the World One Case at a Time - John Uustal with author Ken McCallion

June 30, 2022 Brian Panish Season 3 Episode 42
Get in the Game Podcast from Jury Analyst
Saving the World One Case at a Time - John Uustal with author Ken McCallion
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Show Notes Transcript

Kenneth Foard McCallion a Former DOJ/NY State Prosecutor and still top civil litigation attorney discusses his newest book with another world-class attorney John Uustal, our show host. Listen to some of the behind-the-scenes landmark legal cases of our time.  John and Ken compare their sovereign immunity breakdowns. 

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Alright, so thanks for talking to
us today. You've written several

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books. Why did you decide to write
this one? Well, I decided

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that at least every 50 years of
legal practice, it would be,

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it might be a good time to take
a take a pause and look back

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over the cases I've been involved
in.Fortunately, I've been

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able to be involved in a number
of interesting ones I think And

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collect them in under one cover
and get it, get it out there.

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I've started also teaching more.
And so I think for the next

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generation of lawyers coming down
the pike, I know that when

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I was a kid or in law school, there
are a number of notable lawyers

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who had books out and had some
influence on my and my thinking

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and perhaps my career. Yeah. You've
certainly been involved in

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some fascinating cases and I want
to talk to you about that.

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But first I want to talk to you
about the title. How'd you come

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up with that? It's a great title.
How'd you come up with it?

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Sure, saving, saving the world
one case at a time. Well, um,

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I mean, it's a it's a bit of tongue
in cheek. Um of course,

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literally, while we can make a contribution,
I think for the betterment

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of the planet and for the justice
system, um US one lawyer and

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certainly even us collectively
as lawyers are, are not going

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to buy ourselves uh save the planet.
However, I think that when

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we all wrap it up and look back
I like, and I think most of us

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would like to say not only did
we make a living, but that uh

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we helped contribute at least in
some small way to further

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the justice system protecting
the environment, vindicating civil

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rights or doing other positive,
positive things in our career.

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Yeah. You've certainly done that.
I, and uh the last thing I'm

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gonna ask you is if you have
any advice to young lawyers,

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but before we get there, um you
know, how was it you had quite

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an interesting career. How was it
that you were able to be involved

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in so many high-profile cases or
at least cases that had such

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an effect on, on our country. Why
why do you think that you know,

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was it just luck really? A combination
of things and it really

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depends on the case. For example,
the Exxon Valdez case.

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I had been a fairly prominent prosecutor,
both state and federal

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government but had joined a private
firm a and it was actually

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a maritime law firm, Hill Bets and
Nash. So when the Exxon Valdez

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went down and 1989 my law firm,
I was based in new york,

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got a call because we had handled
a number of maritime disasters

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before and also major environmental
cases. So we got a call really

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within hours of the ship sinking
by some of the native Alaskan

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corporation representatives who
asked us to come up there and

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I actually I went to the airport,
I got up in Anchorage Alaska

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and took a small plane flying out
over the Exxon Valdez and perhaps

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sadly I got there before a lot
of the response equipment did.

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It was a quiet day, there wasn't
much much weather and the oil

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was still potentially containable
at that point. So um other

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cases, um for example, You know
the September 11 cases, I was

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asked by the special master ken
Feinberg to take on a number

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of cases really on a pro bono basis.
And then a couple of months

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later there was a flight 5 87
to the Dominican Republic from

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JFK crashed. And people thought that
perhaps that was a terrorist

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event initially and some Dominican
actually a Dominican paralegal

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who worked in our law firm had actually
close friends and family,

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family friends who died on that
flight. So it's really been

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a combination of things. Um I
won't say I've gone after some

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cases, but when the holocaust
cases came along, I was really

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asked by some of the major Jewish
organizations uh to head up

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take a lead role in some of those
cases, particularly the french

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holocaust french bank cases and and
the german case against Germany

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and german industry and I like
to think that was maybe because

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of my legal skills, but actually
it was probably more in

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the nature of diplomatic skills and
helping navigate the political

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waters between various interests
and perhaps minor divisions

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between jewish organizations and
groups. So I was something

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of a neutral in that. So, so really
the answer is that it really

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has varied, but I've also, you know,
been known to take on cases

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potentially which many other lawyers
considered to be uh impossible

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and some of those worked out quite
nicely. So it's a matter of

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hopefully a little bit of skill,
a lot of Irish luck I would

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say was involved as well. You talk
a lot about the importance

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of our civil justice system. How
would, how would you, why do

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you think it's so important?
Well, it's it's it's really

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the, the gem and one of the jewels.
Um really in the American

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system, um our founding fathers probably
could have never contemplated

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 contingency fees, class actions.
However, early on in the 1st

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Judiciary Act of 1789 enacted
the federal tort claims act.

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And basically the theory back
then was that the courts of

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the United States should be open.
Generally two people not only

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Americans but from people around
the world. Um that the doors

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of all courthouses in civilized countries,
which the US considered

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it to be even in its infancy, should
be open to two deserving claims.

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And I think unfortunately we've
gotten away from that, as you

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know, a lot of my work is international
and sovereign immunity,

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It's very hard to break in
many cases, I've succeeded,

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we've succeeded in doing it in some
cases to assert jurisdiction

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over um major thwarts such as
the Bhopal gas disaster in U.

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S. Courts. However, ultimately
the Bhopal case was unfortunate

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because although we felt that
the US courts should be open to

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claimants, especially given
the challenges of the Indian court

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system and the defendant was Union
Carbide, based here in Connecticut,

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uh that the victims of Bhopal Gas
disaster should have recourse

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to the US courts to go after warren
Anderson, the ceo of Union

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Carbide and Union Carbide itself.
The courts, however, did not

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agree with us ultimately on that,
and I believe the justice 

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system fell short in that regard.
So there's been, well,

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the doors of US courts were largely
open when we were a young

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country over the last couple of
decades, I've seen a closing

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of that, of the judicial doors,
um racketeering statutes,

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civil RICO statutes, the extra
territorial or overseas impact

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of that. Uh the federal tort claims
act and sovereign immunity

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issues have largely been decided
um against in many cases,

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plaintiffs, even US citizens who
were subjected to um foreign

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towards victimized by foreign disasters.
Uh and I think that's

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wrong, but ultimately it's going
to take congress really to,

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I think, correct that um the closing
of the doors to both U.

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S. Citizens and and non US citizens.
We have, you know, the greatest

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court system, I think in the world,
other countries have started

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to try and replicate or follow
us, maybe in class actions

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contingency contingencies. But far
and away, we've given access

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both through statutes and common
law, uh, to, uh, ordinary people

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by incentivizing monetarily lawyers
to represent them and take

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on contingency and high-risk cases.
And it's generally worked

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out. But still the scales, in my
view are not completely evened

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up. And I see when I go to federal
court, it's largely become

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the venue of, um, large corporations
settling their disputes

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in federal court and the access
to the little guy civil rights

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cases and others. Well, well, not
for close to them, uh, is not

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completely on a level playing field.
Yeah. And I want to talk

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to you about that, how you, your
belief that what you've seen

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about how the law is shifted in
favor of the rich and powerful.

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But before we get to that, I
want to follow up, you said,

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you know, the doors are being shut
to people injured in other

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countries, even us citizens. Um,
And you said that maybe it'll

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take an act of Congress to fix
that. But I want to push you

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a little bit on that because cases
that I've had, um, in other

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countries. However, the courts
were taking them, I don't know

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20 years ago in the us, but gradually
at least the courts that

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I were involved based on the doctrine
of an inconvenient forum,

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all the cases gradually started
getting declined. And so,

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you know, what, what are you thinking
of? What type of act of

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Congress could fix that? Because
the judges, it seems to me have

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gotten a lot more sympathetic to
the idea that these companies,

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these poor american companies
are being victimized by people

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who should just sue in the inadequate
courts where they got hurt.

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Well, I I certainly agree with your
analysis as to courts

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for example, in the Bhopal case,
Union Carbide would be a prime

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example where the courts, in my
view really went out of their

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way to protect Union Carbide from
being subjected to plaintiff's

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claims in U. S. Courts. Ah my feeling
is that if US companies

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want the benefit of doing business
here, of incorporating here,

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Delaware and new york wherever else
in the US, then there should

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be, they should be subject um to
really recompense and accounting

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in new york and U. S. Courts and
the California courts. Um as

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you know, we're very strong in
the holocaust era when a number

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of federal cases were being thrown
out against um some of

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the holocaust claims and I believe
it was the California Legislature

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extended the statute of limitations
and indeed place certain

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banks and corporations and potential
jeopardy of losing their

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their state licenses, other states
have been much more, I think

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protective of the corporations
incorporated in them. Uh,

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and but the reach of federal law.
Us courts is really necessary

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to go after and collect damages
from US corporations and you're

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right doctrines such as foreign
nonconvenience and uh can is

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so discretionary with the judges
that any judge who doesn't want

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to hear a case doesn't have to hear
the case if they apply that

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that doctrine in a very broad
sense. So I tend to agree with

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you and I'm not sure, I think in
Foreign Sovereign immunities

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act cases, I think the case law
has become so restrictive as

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far as jurisdiction over sovereign
acts, Even genocide cases,

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I've had unfortunately, some genocide
cases African generous

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side cases against Germany,
for example, where U. S.

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Citizens who were refugees from
African states such as Namibia

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and whose families had been subjected
to Really the first genocide

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of the 20th century uh in uh
in uh 1903 Really to 1905

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by the German Imperial Forces uh were
ultimately denied um jurisdiction

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in U. S. Courts. And the courts went
on to say in denying jurisdiction

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that clearly these wrongs have occurred,
but they should be they

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should be tried in another forum.
Well, the question arises,

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what other form is available? We
pursued claims in the United

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Nations, the European court of Human
rights and other international

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forums, but those are generally
available to sovereign entities

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to countries, not to individuals or
or non-governmental organizations.

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So without the U. S. Court jurisdiction,
there's largely no form

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available two victims victims
of genocide. Unfortunately,

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yeah, we had some ford Firestone
cases that have that took place

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in Argentina and one was in federal
court and several in state

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court in florida. The florida
courts took them because there

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was no other realistic forum. There
there was no forum available

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in Argentina because of their law
jurisdiction, the federal court

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and on appeal, it was a firm said
no Argentina is available in

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its inconvenient forum. But of
course we went to Argentina and

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there there was no way to proceed.
So it was it was just a loser.

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E and it's just one more example
of how the law in the US in

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my opinion is shifting in favor
of the rich and powerful,

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which is something that you talk
about. So what have you seen,

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how have you seen the law shift in
favor of the rich and powerful

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in the US? Well, um I think
the two most recent examples

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I've run into are as I mentioned, I
think in genocide and international

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human rights cases where um we for
example, You know, 20-30 years

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ago when the U. S. Courts began
applying the federal Tort claims

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act to international law claims
in various notable cases.

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We were very optimistic that this
would open the doors not to

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necessarily universal jurisdiction
but to an expansive jurisdiction

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in human rights cases ah particularly
the Chilean situation in

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various other latin american cases
where dictators were found

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and served at airports here or elsewhere.
Uh there was um jurisdiction

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was upheld However, as I just mentioned
in the over herero and

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nama cases out of which occurred
in Namibia. But um these were

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fundamental genocide cases and clear
cut violations of international

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human rights law and whether it
be war crimes crimes against

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humanity or genocide, there's nobody
will argue that those are

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not international violations. And
we attempted to bring the case

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here in the US. We also certainly
notified and dealt with

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the UN on the issues, but they basically
had no form, There were

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Upwards of 50% of the entire populations
of these tribes have

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been decimated by Germany. The
german courts were not open to

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them and with the U. S. Courts being
closed to them, they really

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had no remedy another series
of cases we had, for example,

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perhaps timely to what we see on
the news today is I represented

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00:19:53,030 --> 00:20:01,000
a number of opposition pro democracy
leaders Yulia Tymoshenko

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and others who were in jail when
they reached out to me to see

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if we could bring a case in U. S.
Courts and they were subjected

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to not only violations of civil rights,
trumped up criminal charges,

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denial of health care but other
violations of fundamental human

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rights. So I went over to Ukraine
and then filed cases in

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the Southern district here in
the U. S. District Court. And lo

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and behold, we found that Paul Manafort
and others who ultimately

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went to work for Donald  Trump. We're
really managing the political

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campaigns and governmental campaigns
of some of the pro-Russian,

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the pro-Russian dictator at
the time in any event, while

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the US courts were somewhat
sympathetic to the claims of

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the pro democracy leaders who are
denied civil and human rights

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in in Ukraine. Ultimately the court
did deny deny jurisdiction

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even though we found some evidence
of money laundering um by

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paul Manafort some of his cronies
and some of the pro Russian

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Ukrainian oligarchs and governmental
leaders through banks in

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new york and the U. S. So we we
felt against a significant part

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of their international racketeering
scheme and to suppress

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the pro democracy forces and to
make money through corruption

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uh involved us banks. But the courts
have a lot of discretion

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as you know, and ultimately decided
that no the U. S. The U.

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S. Courts would be closed close
to that. We ultimately did bring

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a case against paul Manafort and
but that was ultimately um

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the special prosecutor prosecutor's
office and the U. S.

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Attorney's Office really took over
our investigation and proceeded

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criminally against him. And we
were glad to be helpful there.

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But we felt that our clients in
the civil case really were not

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given a fair shake given the extent
of money that was being washed

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through us Banks. Yeah that's just
another of the fascinating

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cases in um in the book you've got
that we touched on the Exxon

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Valdez and Bhopal now, Ukraine
Manafort and Giuliani.

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You've got a cirque du Soleil case.
It's really fascinating and

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I recommend the book saving
the world one case at a time before

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we let you go though. Do you have
any advice for young lawyers?

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Sure. Um you know, I've been teaching
for some time, not only

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in in law schools but also in
the political science department

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at Fairfield University and elsewhere.
So um, and I'm always

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asked, well, what are the opportunities
for a career such as

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yours and human civil rights, Environmental
law? And my answer

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again, perhaps tongue in cheek, but
seriously is there is unlimited

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opportunities. And that's why I
and many of you, the students

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went to law school was to not only
make a living, but to do well,

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the tricky part of it is obviously
not going bankrupt in

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the process and to make a living.
And fortunately I've been able

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to do that. And I've also counseled
and taught subjects that

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I was never taught, in other words,
really had to pick and choose

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a strong contingent fee case how to
properly investigate it beforehand

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because you're pretty much stuck
with a case once you have it.

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Um I also um teach other younger
lawyers through the new york

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city Bar association legal referral
service And we have to really

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make a decision within 10 or 15
minutes of interviewing a client

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really whether whether it's worth
pursuing and doing our due

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diligence further. So um I'm very
uh, you know, uh, I tell my

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students that if, if there are
10 proposed cases to them and

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10 clients, you can give Nine of
them, you might be able to give

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some good advice too, but you probably
shouldn't take their cases.

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It's really the one out of 10 case
that is going to be economically

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viable. Um, and if you want to take
a case on and pro bono cases

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and, and students and lawyers should
at least for a percentage

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of their case, but you should
be very aware when you take on

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a pro bono case and not do it
through lack of due diligence,

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vetting investigation. So the upfront
investigation costs are

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well worth it, whether it
be a wrongful death case,

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personal injury, environmental case,
civil rights case, you may

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think that, you know, you wasted
a lot of time if you ultimately

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decide not to bring the case. But
uh, I assure the students that

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that is much better than the alternative,
which is to take on

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a bunch of cases and then find
out after you've committed to

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a client pursue their case to find
out that there are fatal flaws

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in it. So that's, that's really,
um, something which they didn't

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teach in law school then and
we had to learn the hard way.

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Perhaps some of the rest of us
along the way. But that's,

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that's the kind of advice I give
to students. Yeah, that's great

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advice. So thank you very much.
We really appreciate you being

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with us and again, saving
the world one case at a time.

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Thanks so much, john.