In this episode…
A career as a litigator can afford you countless transformative professional experiences, from unique cases that shift sports culture to being the inspiration for a character in a John Grisham novel. Our guest today, Martin Cunniff, has had an eclectic career as an attorney so far and brings many fascinating stories to the table.
Martin has led high-stakes litigation cases for over 30 years and has been involved with a myriad of interesting legal matters. From an antitrust case that helped force the College Football playoff system to several class actions for homeless citizens in D.C. All these experiences paint an inspiring picture of what a litigator’s career can be.
Martin Cunniff, a Partner at Fields PLLC, is interviewed by Dan Rubin on this episode of Engaging Experts. Martin discusses his acclaimed career in antitrust law, some of his standout cases, and his approach to pro-bono work.
Note: Transcript has been lightly edited for clarity.
Host: Dan Rubin, National Business Development Manager, Round Table Group
Guest: Martin Cunniff, Partner, Fields, PLLC
Introduction: Welcome to Engaging Experts, the podcast that goes behind the scenes with influential attorneys. Our guests will describe their practice and expertise. Then, we will go deep on various topics related to effectively using expert witnesses.
Dan Rubin: Hello, and welcome to another edition of Engaging Experts. This is Dan Rubin, National Business Development Manager of Round Table Group and one of the hosts of this podcast series. We have another great guest for you today. Martin Cunniff is a partner in the Washington D.C. firm of Fields, PLLC. For over 30 years, Martin has led high-stakes litigation cases for both large national firms and high-powered litigation boutiques. He’s served as chair of Commercial Litigation for Howrey LLP, which was at the time the largest litigation firm in the world, and he served as a chair of antitrust for the national law firm of Arent Fox. Additionally, Martin has extensive experience in teaching trial advocacy, including training hundreds of litigators, instructing expert witnesses at the FBI Academy in Quantico, Virginia, being on the faculty at AICPA training programs for accounting and financial experts, and leading teams that won numerous national awards for training excellence, including the American Society of Training and Development’s Best Award. Last but not least, Martin was Round Table Group’s first client in 2001 and is still one of our most loyal clients 20 years later. Martin, welcome.
Martin Cunniff: Thank you, it is nice to be here.
Dan Rubin: I cannot wait to dive in, but first, let’s pause for this brief sponsorship message.
Announcer: This episode is brought to you by Round Table Group, the Experts on Experts®. We’ve been connecting attorneys with experts for over 25 years. Find out more at roundtablegroup.com.
Dan Rubin: Martin how did you get into the practice of law? When did you know you were going to be a lawyer?
Martin Cunniff: It dates to the 6th grade. I went to Catholic school and I was trying out for the choir. I thought the different notes just meant you sang louder or softer and our choir director, Mr. Taft, took me aside and said, “Martin, I think you might be tone-deaf, but you seem kind of smart, so we are sticking you on the debate team. And then I was on the high school debating circuit as a 6th grader and did a full seven years of high school debating, which I loved. Frankly, it is sort of the same stuff I do now, create arguments, find proof, or rebut the other guy’s argument. I am lucky that I did not grow up in a generation where everybody got a trophy. I received good advice, even though it was harsh advice early on.
Dan Rubin: I mentioned at the outset that you were at Howery then you went to Arendt Fox, then, of course, Ruyak Cherian. Tell us a little bit about your current firm, Fields.
Martin Cunniff: Fields is a unique firm. My partner, Richard Fields, and I worked together at Howery back in the late 80s and early 90s, but he went off and did overly complex environmental insurance settlements. Then he was one of the pioneers in the litigation finance industry. He started the first publicly traded fund Juridica [Investments]. He has placed probably billions of dollars in litigation financing and then a few years back, when there [got to be] too much money in that field, he thought he would go back into contingency work. It has been a tragedy for everybody, but COVID–19 has worked to my benefit because Richard’s wife and his lender said he better get a partner. About a year ago we teamed up together and, for a two-lawyer firm, we have a unique niche in that we focus on litigation funding, strategy, settlement, and damages. And we are in some big cases; opioids for Ohio, Delaware, and a lot of the tribal nations; in JUUL for the tribal nations; we represent Michigan and Illinois in the PFAS cases which are the biggest environmental cases out there; and we are in a bunch of Helms–Burton Act cases. The reason I love it is that it is all the legal practice, the strategy, the damages, and there is none of it that I do not like, like discovery conferences and fighting over the rogatory. You have to do that, but you know after a couple of decades you can live without the more day-to-day routine.
Dan Rubin: Right. You mentioned a couple of your more notable cases, Martin. Some of the ones that you and I have talked about in meetings and offline conversations are fascinating to me. Tell us about that BCS antitrust case that helped force a College Football Playoff system. Tell us about that one.
Martin Cunniff: Absolutely. We represented the Mountain West Conference. I think University of Utah and Boise State, which only antitrust lawyers will understand this, but they were probably the only entities that had antitrust standing to challenge the BCS, so we initiated negotiations. We started drafting a complaint and we would have to be going against all the schools in the BCS. What happened then was very interesting. I do not know if you remember, I think his name was Jerry Sandusky, and he got involved in a child sex problem, which was a tragic situation. At the time, the president of Penn State, Graham Spanier, was head of something called the BCS Oversight Committee, which included 40 college presidents that ran the thing. It was run by some other people, but they were officially in charge of that. Spanier had to step down as president and we were days away from filing the case and then two people took over the oversight board. One was from the SEC and one was from the ACC. The first thing they did was call us and say, “Hold off on the complaint because we are probably oing to create a BCS] playoff anyway.” We got into the negotiations and finally worked something out. Jerry Jones was in it because he wanted the first championship to be in “Jerry World” [Cowboy’s football stadium, currently known as AT&T Stadium] when he got [the contract to host the first BCS playoff championship game] that it went to the highest bidder.
Dan Rubin: Right, that makes sense.
Martin Cunniff: Mark Cuban had a syndicate ready to buy the whole thing for $4 or $5 billion. It was fascinating. Six months of my life was just antitrust college football, and it is the only case where the outcomes of the games could help our case or hurt our case because we wanted the Mountain West to do well, but they would still get screwed out of the BCS slots, so it was fascinating.
Dan Rubin: Being a litigator, you get to see so many different things, but not many people get to be involved in a case that helps force a college playoff system. There is another case that I thought was very notable. You were involved in several class actions for homeless citizens in Washington D.C.
Martin Cunniff: Early in my career our firm had one case. Judge Joyce Hens Green asked our firm to represent the class of homeless citizens and I was going all over the city into the neighborhoods that a lot of people do not visit. I would get in the taxi and say I need to go to this address, and the driver said, “I’m not going there.” I said, “When you’re a common carrier, you have to go there.” He said, “I don’t care.” We finally [hired] a car service that had armed drivers. I think there are still neighborhoods in D.C. where I may have been pegged as a drug dealer or the lawyer for drug dealers. It was interesting, working with the homeless because a lot of them are well educated, but end up with some mental illness or sometimes they just ran out of friends, family and end up not having a lot of options. I ended up being one of the leads in the trial early in my career. As a big firm associate, you do not often get into federal court like that, and we got a very good result out of it. All kinds of crazy stories from their case, I would be happy to give you some, but the upshot is I ended up being the inspiration for a character in a John Grisham novel, The Street Lawyer. Mr. Grisham did his research for the book with the Washington Legal Clinic for the Homeless, who was one of our plaintiffs and the nonprofit who organized things. In fact, it is probably why I got focused on expert witnesses because I put four expert witnesses on the stand. Now, it was a pro bono case, but still a case [that required] the same professional duties. After that, whenever I would be in trial team meetings my friends would always say, “Oh, Martin has put four experts on in federal court,” and they ask, “Is that true?” It is OK when you get all these experts. I am not sure anybody told them what the case was, but you have to take the opportunities you get, and I always told young associates that.
Dan Rubin: Right.
Martin Cunniff: Every pro bono case I did ended up in a very high-paying commercial matter somehow, like through a relationship, or somebody I knew, or somebody I met. The law of karma is strong. I tell all lawyers that we have a professional duty to do pro bono, but to tell you the truth, it has always paid off for me in the end in some other case.
Dan Rubin: It is obvious that you are as passionate about your social responsibility as an attorney as you are your professional responsibility. At Round Table Group we are always looking to improve our offerings in the pro bono context. In February, Russ Rosenzweig, our CEO, who is especially passionate about giving back, interviewed Greg McConnell, who is the Senior Pro-Bono counsel at Winston Strawn, and it is all about giving back in the pro bono context. I encourage our listeners to listen to that podcast if they have not already. It sounds like you became a sort of the de facto expert guy in your practice. Can you tell us a little bit more about your use of experts in your career?
Martin Cunniff: I will insist on giving Round Table [Group] a plug. When Russ, and I forget who was with him, approached me originally, I said this is exactly the service I need because in big law firms finding the experts usually gets lopped off to a mid-level associate who has not worked with experts. They find people who are just sort of odd and do not fit. One thing Round Table [Goup] has always been good at is a very deep network into academia. I always liked to use college professors. The best experts are teachers. The problem is those guys are so busy they are not usually going to return my emails. Round Table [Goup] has a relationship with them and determined which ones were right. That is an art and a science in itself, so I have used you extensively. I still will and you have always done a great job for me.
Dan Rubin: Thank you so much for that, Martin. We love hearing it and, of course, we appreciate it. You incidentally, and inadvertently summarized the evolution of Round Table Group from its inception over 25 years ago as an expert referral service that recruited only the top academic experts to where we are today. We have a network of thousands of experts, not only in academia but also industry experts in the testifying and consulting disciplines. Switching gears, you have been an expert in many cases in your own right, not only on the other side as an attorney. Tell us about some of those experiences.
Martin Cunniff: Sure, I sat for a pro-bono deposition a couple of weeks ago. I was appearing pro bono in the Northern District of California for an African American gentleman who was wrongfully incarcerated for 21 years. I am doing the economic damages, which are lost earning capacity, hedonic damages, and some other ones. The only eyewitness to this murder was a woman who got a free trip to Disneyland, a thousand dollars, and a ticket out of the housing project she was living in as a civic reward for testifying. I think any economist would tell you [that] maybe the incentives are not lined up perfectly there, but I had to interview him and talk to him. He is a very good guy. I am not sure where my head would be if I were wrongfully imprisoned for 21 years, but he is a motivational speaker and a very good guy. I have been in the hot seat myself as well, as probably working with hundreds of experts over my career.
Dan Rubin: Sure. Getting back to your career as a litigator, you have focused or followed what you call a focus on damages approach to litigation. Can you elaborate on that?
Martin Cunniff: I was a business major and a stockbroker before law school, so when I got into practice, I would [immediately] focus on the damages because a lot of lawyers say they do not like numbers, or say, “I went to law school to avoid numbers.” First, I have always told people if you do not think damages are important, maybe talk to your client every now and then. I like it because it takes a lot of creativity when you are constructing a model that never happened, but you are trying to figure out what happened essentially in a different universe and how to defend it. Then you are also blowing up the image models as part of the game as well, but I enjoyed it. I ended up writing a book on it. I still have colleagues who call me and say, “Martin let’s run these damages by you to see if they make any sense.” It has been a nice niche and one that I enjoy.
Dan Rubin: Outside the courtroom, both as a litigator and an expert, what do you like to do for fun?
Martin Cunniff: A couple of things. My brother and I have always brewed our own beer and we did that so we would have something to answer the question you just asked. It has always been in the context of if we ever got on Jeopardy and Alex Trebek, who is sadly no longer with us, were to ask us what we do, we would be ready to say brew our own beer. I go hiking and fortunately where I live in Montgomery County, Maryland has a lot of parks and trails. My latest thing has been listening to courses on Master Class where these celebrities and masters at something teach a short class. Right now, I am listening to Aaron Sorkin’s class on screenwriting. I will never be a screenwriter, but I do write complaints, and a lot of the dramatic tension he talks about I am thinking would be good in a complaint. I try to be very eclectic because in our profession you can get inspiration from anywhere. After all, the law deals with life so anything you pick up, you can use.
Dan Rubin: I had never really thought of it that way, but now that you mention it, complaints do often have this literary quality to them. If you could be the inspiration for a John Grisham character, why can’t Aaron Sorkin be the inspiration for some of your complaints? Martin, thank you so much for this great conversation. I enjoyed it and appreciated your time. Thanks again for being a loyal Round Table Group client for over 20 years.
Martin Cunniff: Great, thank you.
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Martin Cunniff is a partner in the Washington D.C. firm of Fields, PLLC. For over 30 years, Martin has led high-stakes litigation cases for both large national firms and high-powered litigation boutiques. Martin has extensive experience in teaching trial advocacy, including training hundreds of litigators, instructing expert witnesses at the FBI Academy in Quantico, Virginia, being on the faculty at AICPA training programs for accounting and financial experts, and leading teams that won numerous national awards for training excellence.
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