Trial Aces: Keker & Van Nest's John Keker

Law360 08/26/2015

It was in the middle of closing arguments during a rare trial against a Wall Street executive over the financial crisis when John Keker, a renowned trial attorney, showed a flash of the brilliance that helps him win the biggest cases.

An attorney from the U.S. Securities and Exchange Commission was summing up for a jury seated in lower Manhattan why a former Citigroupexecutive named Brian Stoker should be found negligent in the structuring and marketing of a massive asset-backed security that imploded in the run-up to the financial crisis, but not before the bank bet against it.

As the lawyer spoke, Jan Nielsen Little, a member of the defense team and a longtime partner at Keker & Van Nest LLP, recalls receiving a note from Keker, one of Law360’s Trial Aces.

Keker, she recalls, was asking about Waldo. From “Where’s Waldo?” the series of illustrated children’s books about a bespectacled everyman who is perpetually lost in a zany sea of humanity.

Later, when Keker got up to deliver his closing arguments, an image of Waldo, circled in red, appeared on a projection screen for all the courtroom to see, Little said. Surrounding the cartoon character was a crowd of people that should be familiar to anyone who’s pored over one of the books, searching for the guy in the red-and-white striped shirt.

The jury smiled, Little recalled. And they also got Keker’s point. Over the course of the two-week trial, Keker had pounded the point about how Stoker was just one out of possibly thousands of people at Citigroup who knew about the bank’s structured product business. Yet here he alone was, on trial, being singled out by the government to pay for Wall Street’s failings, the lawyer argued.

When it came time to deliver the verdict, the jury agreed: Stoker couldn’t be held liable for a violation of securities laws. But  what they did next shocked even a veteran trial attorney like Keker.

They delivered a note of their own: “This verdict should not deter the SEC from continuing to investigate the financial industry, to review current regulations and modify existing regulations as necessary.”

Three years later, Keker sounds still stunned by the strange turn of events.

“I have never seen this before,” he said. “The jury let Stoker go, but they admonished the government, the SEC, to keep going after the big boys. It was really something.”

Yet the experience speaks volumes about why Keker, 71, has earned such a formidable reputation in the courtroom.

Over the course of a more than 40-year career, the San Francisco-based lawyer has been the one that plaintiffs and defendants call when they need an advocate on their way to court. Whether diving into a high-stakes patent dispute between two pharmaceutical giants, defending an antitrust claim challenging Major League Baseball’s control over the sport or representing a top executive against a criminal charge that could send him to prison for years, Keker shows no hesitation to take up their cause, those who know him say.

“I don’t think he is afraid of very much,” said James Brosnahan, a senior trial counsel atMorrison & Foerster LLP who has been friends with Keker for years. “The phone rings, it’s somebody in a lot of trouble and he says, ‘OK, I’ll do it.’”

This includes taking on high-profile cases against seemingly insurmountable odds. One of Keker’s bigger victories came in defending well-known San Francisco defense attorney Patrick Hallinan, whom federal prosecutors in Nevada had accused of taking part in an international drug smuggling ring allegedly masterminded by one of his clients.

After a six-week trial, the jury delivered a not-guilty verdict in a matter of hours, recalled Little, who was a member of Keker’s trial team in that case.

It was a classic example of where Keker’s trial strengths sprung into action, she said. The government lined up 13 cooperating witnesses to testify against Hallinan and Keker dispatched them one after the other, Little said.

“John just took them apart in cross-examination."

“He is forceful in the courtroom but he does it through the force of his intellect and the power of his words. There is a strength there that doesn’t come from volume or histrionics,” she also said.

In a way, Keker’s arrival to the law was accidental. After graduating from Princeton University in 1965, the North Carolina-born, Maryland-raised Keker enlisted in the U.S. Marine Corps, expecting to serve four years in the military at the time the Vietnam War was raging.

Those plans came to a halt when, as an infantry platoon leader, he was shot and wounded in Vietnam, leading him to retire in 1967. As he recovered from his injury, Keker mulled what his future would be. He hit upon law.

Certainly his experience in the Marines gave him plenty of practice managing the anxiety and stress of guiding a bet-the-farm trial to its conclusion.

“There is a lot of fear in the courtroom. Having had to deal with fear in combat gives you perspective,” Keker said.

Keker entered Yale Law School and graduated in 1970, but not before taking a course on small-group psychology that sticks with him today. It is a course that he said taught him extensively about the dynamics of juries and how to present a case to them.

“Everything in the trial has to fit into your plan, and the plan has to be to have the jury, when they decide the case, want to rule your way in their heart, emotionally, and feel like they are doing the right thing,” Keker said.

“So many lawyers pick a jury and forget about the jury until they go out to deliberate. They forget who they are trying a case to,” he also said.

After receiving his law degree, Keker clerked for retired U.S. Supreme Court Chief Justice Earl Warren before accepting a job as a federal public defender in San Francisco in 1971. It was here where he cut his teeth in the courtroom.

“It was a wonderful place to learn,” Keker said of the city at the time. He tried 30 cases in the span of about two years, from bank robberies to a hijacking to counterfeit schemes.

“The sad thing is you can’t do that anymore,” Keker said, bemoaning the decline in federal criminal and civil trials over the decades. “If these were rhinos, they'd be on the endangered species list.”

Keker, who proudly speaks of his independent streak, left the public defender's office and opened up his own boutique law firm in 1978 with Yale classmate William Brockett. Robert Van Nest, the current name partner, joined the firm, then known as Keker & Brockett, as an associate the following year and became a partner in 1982.

Since those early days, Keker has distinguished himself with a number of high-profile victories, including successfully defending “Star Wars” creator George Lucas in 1984 against a claim of copyright infringement over the characters used in the film trilogy.

He made a slight detour in 1989, when he worked as lead prosecutor in the trial of retired Marine lieutenant colonel and former National Security Council official Oliver North over the Iran-contra affair. While he secured the government conviction in the trial, albeit one that was later reversed on appeal, it was experience that Keker said soured him on being a prosecutor.

“I would rather be on the side of the beleaguered or attacked than the behemoth that’s coming down on them,” he said.

In fact, many of his notable cases have pitted Keker against government prosecutors.

In addition to defending Stoker, the former Citigroup executive, Keker has represented Andrew Fastow, the former Enron Corp. chief financial officer accused of taking part in a scheme to hide the energy company's massive losses. He also defended Bruce Karatz, the former chief executive of KB Home charged in a criminal options backdating scandal.

He presently represents Daniel Mudd, the former Fannie Mae chief executive who is fighting civil SEC claims that he and others helped to mask the mortgage finance giant's exposure to subprime loans ahead of the financial crisis.

It is a challenge he relishes.

“I love being against the government,” Keker said, “because the government is often in cases unnecessarily overbearing, smug, sanctimonious. All things I can’t stand in human beings."

“It’s fun to puncture the balloon of pomp and smugness,” he added.

Of course it might all be for naught if the jury does not see the story the same way. But fortunately for Keker’s clients, he has a way of getting the jury to their side, say those who've seen him in court.

“It all boils down to guiding the jury to seeing the truth,” Little said. “There has to be a counter-narrative and John is very good at showing that to a jury.”

John W. Keker

John W. Keker

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