THE HARDER THEY COME
Sex.Com preyed on my imagination. As I read the LA Times at the Starbucks down the street from my apartment, it was all dot-com news. Barry Diller was paying homage to the new magnates, admitting that he admired their ability to painlessly raise the billions that he couldn’t pull in with all his media assets. Opportunity was knocking loudly, and I was eager to see its face.
Down at the Santa Barbara library, I did a little research. The legal issues were open. There were no court precedents about the nature of domain names -- were they property or not? What happened if you stole one? I started reading the news more carefully for domain name stories, and every one was about how valuable they were -- selling for hundreds of thousands, even millions of dollars. And Sex.Com was the world’s most valuable domain name. A guy could become somebody with a case like that.
A case like Sex.Com doesn’t often come to a sole practitioner, but here was an opening. Gary was offbeat. I was offbeat. He was a bit of a loner, and so was I. His big money lawyers were letting him down -- so try a street fighter on for size. Gary knows how to convey the impression of wealth. The junky car and sloppy clothes were part of the impression. I thought he could pay for the work, and even if he couldn’t pay for all of it, there was always taking a share of the name. I waited for Gary to call back after our meeting, but he didn’t.
A couple of weeks later I phoned Gary at his office on Montgomery Street in San Francisco, just a block downhill from that section of Broadway where the bars have names like “Centerfolds” and “The Garden of Eden.” He said he’d been meaning to call me. I said I’d be passing through on my way to Oregon to cover a criminal case, so we made a date to get together. When I arrived, about a week later, he showed me around his office in the afternoon, and then we went to pick up Robin, who was getting off work. Together we enjoyed refreshments at a fish and brew place on an industrial wharf, the sort of gritty amenities Gary likes.
After drinking a few beers, we headed over to Gary’s apartment, a nice walk-up on Fulton Street in Haight-Ashbury. Gary was sharing the apartment with an Asian accountant/tech-nerd/pizza gofer named Bob Deschl, and Ella, a hefty African-American woman social worker. Bob and Ella were nice, and sometimes we’d all eat take-out together in the living room. But on this day, they cleared out of the living room and left Gary, Robin and me to discuss business. Robin helped us do this by sitting very quietly on the floor by the coffee table, being her tiny pleasant self, while Gary ruled the room from a seat on the couch, surrounded by a pile of Wall Street Journals and Barron’s financial news, which he read at breakneck speed, one page after another, while tossing off difficult questions with practiced ease.
After he threw me a question, his eyes would dart back to the print, and he would start flipping pages. When I returned an answer, his eyes would pop back up, stabbing like headlights on bright, and he would instantly ask another question that he had formulated while apparently reading the paper. It was like playing tennis close to the net with a guy who had an evil slam that he was constantly directing toward your backhand. We were playing a game in which it was necessary for me to rack up points, or this thing was going nowhere. The good thing about Gary is he pretty much has his scoreboard right out where you can see it. He lets you know when he likes what you’re saying. He gives feedback and pushes for the next right answer. If you said good things, he would question the positive assessment by asking about downsides, weak points, and pitfalls. Happy talk would not make this man happy.
What made Gary happy were the little things. Months later he said the thing that impressed him the most was the pocket copy of Sun Tzu’s The Art of War that I always kept in my briefcase. He also liked the fact that I had a chrome-handled lock knife with a slender four-inch blade that I used to perform minor cutting tasks. Besides playing with knives, my other sports are fencing and archery. He also liked these things.
That I was an Oregon lawyer also had appeal for Gary, because Cohen’s lawyer was based in Oregon, and had played a difficult opening hand with remarkable skill. When Gary’s lawyers started work on the case, they predicted easy victory. Apparently Cohen hadn’t heard he was supposed to lose. Bob Dorband of Duboff, Dorband, Cushing & King, a Portland intellectual property firm, had been scoring devastating hits against Gary’s case. I had read the paperwork, and there was an Oregon slant to Dorband’s approach. His papers were spare, to the point, and armed with aggressive confidence.
Dorband had put Gary on the run by taking a daring tack, calling Gary himself a con man who was trying to steal Sex.Com. Gary was a come-lately who wanted a chunk of the Internet sex action, a pornographer wannabe looking to take what Cohen had earned with honest sweat. The accusation stung Gary painfully, and I rallied him to repudiate this lie. I called Dorband’s lawyering “smallpox blankets and firewater,” harking back to the days when lawyers, miners and railroads used phony deeds and bio-warfare to steal native land. How the West was really won. It was sneaky and dirty. Like the old rail barons, Cohen had produced a phony deed to steal Sex.Com. Gary needed a skilled civil lawyer with criminal experience and the ability to take the case all the way to trial. California civil lawyers have little familiarity with criminal conduct, but as a prosecutor in rural Oregon, I had convicted many people of forgery and theft. These California never-tried-a-case lawyers didn’t have the stuff to get down and go for the knees like I would. Gary needed to hire someone with Oregon frontier savvy. Muleskinner wisdom. Someone like me. Have gun, will travel.
Gary liked my attitude. He also liked the fact that I was willing to sleep on his couch from the first night. I logged many other nights on that couch, generally five-hour stretches between two and seven, spent under a bare blanket with my head on an armchair pillow. In all fairness, Gary often offered to swap me for his bed, but that offer never seemed too appealing. Better an early dawn through the uncurtained street-side windows than a sojourn in the place where Gary formulated his dreams and nightmares. When dawn broke over Fulton Street the next morning, we had forged a bond. After coffee from the latte shop on Fulton we agreed I would return soon.
I returned a few days later, on my way back from Oregon, and he introduced me to one of his lawyers, Sheri Falco. She was working at his Montgomery Street office, and provided me with a copy of her file. This file wasn’t complete, I soon discovered. It lacked the court documents showing that Katie Diemer, local counsel in San Jose, had missed a crucial deadline, putting the case a hair’s breadth away from final dismissal, and was now trying to get out of the case. Sheri was also trying to get out of the case, because Gary’s litigation financiers had actually sued her, she said, although she didn’t have a copy of the lawsuit. Gary wanted to be sure that I wasn’t going to back away from the case if I were sued, and I assured him that first of all I would avoid the missteps that had led to the current representation problems, and second, since any such suit would be meritless, it would not affect my commitment to the case. Subsequently, when Cohen sued me, I lived up to this promise.
After another late night session of questioning and case strategy, Gary popped his proposal. Fifteen percent of Sex.Com in exchange for full-time work on the case. I explained to him that fifteen percent sounded great, but full -time was not an option, and I had to be paid hourly for my work. Considering the minimum I could take and still keep afloat with this monster case, I suggested fifteen percent plus $100 per hour and expenses. Gary took it under advisement and made an appointment for us to have a breakfast meeting the next day with his personal attorney, Steve Sherman.
The next morning at breakfast Steve was polite, but did not welcome my appearance on the scene. He had been presiding over the demise of the case for some time now, and had plans for the future. As I later learned, he had monitored the breakdown in communications that lead to Katie Diemer’s inaction on the case. He knew that the breakdown in relations between Gary and the two pornography financiers lay at the root of the problem. He was ready to hand the seat that Katie wanted to vacate to some lawyer friends of his, and expected to broker the relations between Gary and new counsel. My appearance wasn’t likely to put any money in his pocket, or the pockets of his friends. So why would he like me?
Steve is an equivocator. He just can’t say “yes!” To him every cup is potentially a sieve, and he thinks lawyering means pointing out the many routes to failure. He did not want Gary to hire me, but had no answers for Gary’s problems. So, squinting and shaking his head to communicate incomprehension, he suggested to Gary that it seemed unlikely a person in my position could contribute anything to the case. From Ojai? That was a long way from the courthouse. From Oregon? What was that about? Oh, Robin Kaufer was my UCLA chum. Ah, that explained it.
I began my assault on Steve’s authority by trotting out my credentials. Top 25% at UCLA Law, 1986; worked for the mega-firm Morgan, Lewis & Bockius for my first two years; then did trademark litigation for Louis-Vuitton at the L.A. office of the New York city firm of Reboul, McMurray, Hewitt, Maynard & Kristol. My last three years in L.A., I did plaintiff trial work at Mazursky, Schwartz & Angelo, a personal injury and insurance bad faith powerhouse with three famous partners who all had multi-million dollar verdicts to their credit. Admitted in both California and Oregon, I’d tried around sixty cases, chalking up wins in both states. I’d worked as a Deputy DA in Oregon, and was the first appointed member on the local Federal criminal defense panel. My civil caseload was all business litigation, and I was very excited about the Internet as an emerging area of practice.
Steve’s resistance was a godsend. Gary could see Steve couldn’t see the gameboard or the pieces, and worse yet, lacked the will to fight. I unholstered my best sardonic attitude to attack Sherman’s naysaying. This was just a matter of modeling Gary’s style of putting the other guy on the defensive with pointed questions. Gary loved it. Sherman staggered.
Questioned later under oath whether this had been a “breakfast meeting,” Sherman had this answer: “I ate breakfast.” True as to me: I stuck to coffee, but in those days Gary rarely let a full plate get away from a table, so I’m sure he ate my food. Who cared about eating, anyway? I was hungry for business, and was pretty sure I had sewed up an arrangement with Gary. Later that day, at the Montgomery Street office, he gave me a three-thousand dollar check to investigate the case, and tell him how I would win it.