Lights! Camera! Lawsuit! Hollywood loves courtroom dramas. Pierce O'Donnell knows how to stage them. His target? Hollywood itself.
(FORTUNE Magazine) – "So," I say, "tell me a little about yourself." And Pierce O'Donnell talks until my recorder runs out of tape.
O'Donnell has plenty of entertaining war stories to tell; he is, after all, the attorney who has sued studios like Disney, Paramount, and Sony over matters ranging from the provenance of Coming to America to the ownership of James Bond. But before he gets to those, he wants me to understand where he comes from, and so he unfurls, in a breathtaking, hourlong monologue, his life story. Somewhere along the way, he offers up the football anecdote. It seems that when O'Donnell played college football at Georgetown, he was one year behind Bill Clinton, who would often go to the games. At one particular game, the school's nemesis, Fordham, had the ball at the five-yard line, and O'Donnell had to block a gigantic fullback, and... Oh, heck, it's his story. Let him tell it:
"... And he came at me four times in a row. The ball ended up on the nine- or ten-yard line after four downs, and I stopped him every time. I was totally out of my mind, I guess. Fordham had a good team. I think we lost the game. But Clinton liked to say that it was probably one of the greatest moments in sports that he'd ever seen. Once, he said that when he was running in 1992 and having a fundraiser here. I'd just introduced him, and I grabbed the microphone back and said, 'Governor, Governor Clinton,' I said, 'you haven't seen a lot of sporting events if you think that's one of the highlights of sports for you.'"
This is, admittedly, not a very good story, but it tells you a lot about O'Donnell: It conveys tenacity, and proximity to power, and of course humility. And it tells you that O'Donnell very much wants you to know about these qualities of his.
His mixture of charm, bombast, and hubris makes O'Donnell a perfect lawyer for Hollywood, where those three assets are pretty much requirements for success. And O'Donnell has been successful: He's become known as the lawyer to have if you're going to sue a movie studio. At the moment, for instance, he has two suits pending against Disney. And even when he isn't directly involved in a case, his name finds its way into coverage of it: He may not have represented either of the main parties in the Disney-Katzenberg trial, but he represented the media in their bid to have access to the proceedings--in other words, it's thanks to Pierce O'Donnell that the world now knows what Michael Eisner thinks of "the little midget."
O'Donnell belongs in the movie industry; for starters, in a town where image is everything, he looks the part of the crusading attorney. At six-foot-one and 250 pounds, with a classic Irish mug, O'Donnell seems to have been ordered up from central casting. On top of that, he adores creative people--in part because he considers himself one of them. "The trial lawyer," he argues, "has to embody the skills of a great filmmaker. He's a writer--he writes his own material, he outlines what his witnesses are going to say. He's the director--he directs the performances. He's the producer--he has to make all the physical arrangements. And he's the actor." (He makes this observation, by the by, as we're sitting in the conference room of his firm, O'Donnell & Shaeffer. At one end of the room is a tiny mock courtroom, whose seal, O'Donnell explains, comes from an old L.A. Law set.)
There are other, more famous lawyers in the movie business, but they all make their living representing the studios, for a number of good reasons: The studios pay better; they can stonewall and stall a case to death; and they can use their massive PR machines to crush a defendant and his lawyer. None of those hazards faze O'Donnell. He can afford to take a case on contingency, when necessary, since his firm makes most of its money on the corporate work he does for clients like Pfizer and Lockheed Martin. (He says only 30% of his time is spent on his entertainment cases.) He's chummy with most of the lawyers in town, which makes it easier for him to strike deals and settle cases. And as for the publicity problem--well, when it comes to manufacturing drama and rallying public opinion, Pierce O'Donnell is the equal of any studio.
If he now seems like the ultimate creature of Los Angeles, the first 30 years of O'Donnell's life would seem to have set him on a trajectory for another city that values pomp and publicity: Washington. He was born in 1947 in Averill Park, N.Y., the son of a liquor-store owner and a librarian, and he became, as he will tell you, "valedictorian of my high school class, out of 120. Valedictorian of my law school class, out of 420. College, I graduated with honors, and I was voted most outstanding student in my graduating class." While at Georgetown Law, he worked for both Ralph Nader and for Edward Bennett Williams, and later helped draft sentencing-reform guidelines. He clerked for Supreme Court Justice Byron White ("I worked on a case you may have heard of, called U.S. v. Nixon"), and then, at age 33, he ran for Congress. But he did so as a Democrat, from the Republican enclave of Pasadena. To make things worse, it was 1980, Ronald Reagan's year. O'Donnell lost by a margin of two to one.
Disillusioned by politics, he began exploring another interest: Two years before, while working at an L.A. law firm, he'd been assigned to a case involving Danny Arnold, the co-creator of Barney Miller, in a dispute over the rights to the show. O'Donnell's face lights up describing the experience: "I'd never done any entertainment law.... Suddenly I learned all about television, somebody's paying me to watch Barney Miller shows, and I'm interviewing writers and directors, and maaaaaan! I grew up in Troy, New York!" He was hooked.
In 1982 he started a boutique firm, O'Donnell & Gordon, and Arnold followed him as a client. In fact, it was Arnold who in 1988 gave O'Donnell what would be called, in show business terms, his big break: the Art Buchwald case. Buchwald and a producer named Alain Bernheim had sold a screenplay treatment to Paramount Pictures; the studio's hit movie Coming to America resembled Buchwald's idea, but the studio denied any linkage. O'Donnell took the case, and after a lengthy search through the studio's records, he convinced a judge that the film had been based on Buchwald's idea.
Then the real struggle began: Buchwald's and Bernheim's contracts called for a relatively small fee, plus a total of 19% of the film's "net profits." The problem was, "net profits" in Hollywood doesn't mean anything approaching what laymen think of as net profits: It's a contractually defined term that includes so many provisions and deductions and fees that net-profit participants rarely see a dime. And since Buchwald and Bernheim had signed their contracts--and therefore had agreed to the studio's definition--most people figured they stood zero chance of seeing any money, despite Coming to America's $288 million worldwide gross.
A lot of lawyers would have cut their losses then and there. Instead, O'Donnell did two savvy things. First, recognizing that he couldn't simply argue that his clients had made a bad deal, he went for broke: He charged that the definition of net profits was decided collectively by the studios and forced on clients, and was therefore unconscionable. And second, he went to the media and framed the case as "Coming to America made $288 million worldwide, and Paramount says it's still in the red!"--a spin that wasn't entirely accurate and that wasn't even the argument he was advancing in court but that played into the public's preconceived notions of the film industry as a sleazy business. The press ate it up; the phrase "Hollywood accounting" became a synonym for fraud.
O'Donnell's success in the courthouse was more mixed. The good news was that, on Dec. 21, 1990, the judge ruled that Paramount's contract was indeed unconscionable. At the time, O'Donnell crowed that "the whole case is a great victory for the creative community." But it turned out to be a rather hollow victory: After years of litigation--and over $4 million invested in the case by O'Donnell's firm, Kaye, Scholer, Fierman, Hays & Handler--the judge ultimately granted Buchwald and Bernheim a total of $1,021,466. (Paramount appealed, and the case finally settled in 1995.) As for the creative community, net profits are still offered--albeit sometimes under a less confusing name, like "contingency compensation"--and only one net profits lawsuit since O'Donnell's has won in court.
In the end, perhaps the biggest winner in the Buchwald case was...Pierce O'Donnell. At some point during the trial he signed a deal to co-write a book about the experience; the result, Fatal Subtraction, became a modest bestseller. (He says he gave his share of the proceeds to Kaye, Scholer to defray the costs of trying the case.) As a result of Buchwald, O'Donnell became a legal celebrity, known as the man who took on the studios and won. It's not that O'Donnell isn't a good lawyer; as Buchwald notes, "A lot of guys would have given up on me, and he didn't." And few lawyers could have gotten the verdict that he did. But O'Donnell is also an expert at spin, at telling a story that paints his clients and himself in the best possible light. Remember that football anecdote that began this story? Notice how quickly he glided past what some might consider a key point: "I think we lost the game."
The Buchwald case set a pattern that O'Donnell has followed ever since: He paints his clients as pawns in the hands of a large, arrogant opponent--a hook that's nearly impossible for the press to resist. Says Charles Diamond, an attorney who opposed O'Donnell in Buchwald and is now working with him in defending Lockheed Martin in a toxic-tort case, "What I like most about Pierce is that he can turn anybody into an underdog. He could make Donald Trump look like the poor boy who deserves justice."
O'Donnell also has an instinct for the turn of phrase that will make it onto the evening news. His briefs are larded with florid prose that seems calculated to delight courthouse reporters. When O'Donnell represented Reebok in its lawsuit against TriStar Pictures--the shoemaker claimed that it had paid for product placement in the film Jerry Maguire but that a key element of that deal, a scene featuring a Reebok commercial, was cut from the finished film--O'Donnell began his complaint as follows: "This lawsuit is about shattered promises and broken rules. It is the true story of a game not played fairly." And when he represented Barbara Chase-Riboud, an African-American novelist who claimed that DreamWorks had stolen elements from her historical novel Echo of Lions for Steven Spielberg's film Amistad, O'Donnell opened his first case filing with the sentence, "This case is about the original sin of American history--slavery." (Both cases settled out of court.)
Perhaps the ultimate test of O'Donnell's capacity for public indignation was the James Bond case earlier this year. At issue was a character worth billions to MGM: The Bond films are, at the moment, among the few films the ailing studio produces that make money. So when Sony Pictures Entertainment chairman John Calley, who'd recently left MGM, announced that Sony had struck a deal with Kevin McClory, the co-creator of Thunderball, to make its own series of James Bond pictures, it threatened MGM's very livelihood. Taking Bond away from MGM would be akin to pirating Coke's secret formula.
O'Donnell's key victory in the case came when he obtained a preliminary injunction preventing Sony from even developing its Bond film. Getting an injunction was a long shot--so much so that Sony had requested that O'Donnell be sanctioned for filing a frivolous action. O'Donnell spent weeks preparing his arguments, even recruiting a "dream team" of intellectual-property experts to grill him at the MGM soundstage the weekend before the court date. The preparation paid off: The judge granted the motion. The case was settled eight months later; after a complicated transaction, in which Sony netted $5 million from MGM, Sony relinquished its claims to the character worldwide. On the day the settlement was announced, O'Donnell stood on the courthouse steps and crowed, "Sony is out of the Bond business!"
O'Donnell's grandstanding serves a number of purposes: First, his PR tactics can create pressure for a settlement. And they also serve as a billboard for his firm: Steven Brill, the screenwriter of The Mighty Ducks, is currently suing Disney for a share of its revenues from the hockey team; he hired O'Donnell, he says, because "any time I would read about lawyers representing other people in suits, his name kept coming up." Pretty much the only drawback to O'Donnell's rhetoric is that it can be completely out of proportion to the cases involved. The Amistad case, after all, was not really about "the original sin of American history"; it was about whether a book had been stolen to make a movie.
This dissonance speaks to a larger schism in O'Donnell's career; he started out by planning to change the world, and even when he's suing studios, his rhetoric is still that of the social crusader--the Nader's Raider, crying out against the travesty, by God, of a Reebok commercial's being left out of Jerry Maguire.
This sort of hyperbole has, predictably, won O'Donnell his share of critics. Shirley Hufstedler, an early mentor for whom O'Donnell clerked when she was a circuit court judge, pointedly comments that "stardom on the Hollywood scene unquestionably has its attractions, but I think that doesn't always involve doing the best job you can for the public interest." O'Donnell stresses that he encourages his firm's associates to do pro bono work, and he himself devotes some time to the cause of abused children. And he suggests that he plans to do more altruistic work. The first step in that plan is classic Pierce: He hopes to bring attention to the fact that some Nazi war criminals went unpunished. How so? By writing a fact-based novel, An Eye for an Eye, about a Polish Jewish lawyer hunting down Nazis; his hope is that the novel will be turned into a movie. (It would not, by the way, be O'Donnell's first movie. That's Home Team, a film he co-wrote and executive-produced last year, about a group of boys in an orphanage who form a soccer team. It stars Steve Guttenberg.)
It is initiatives like these--the weird mix of fact and fiction--that feed the other common critique of O'Donnell: that his technique of trying his entertainment industry cases in the showiest, most public fashion possible is designed to serve him, rather than the law, and has hastened the legal profession's slide toward celebrity. One former colleague says Pierce has "an addiction to adulation," and adds that "the Johnnie Cochran syndrome follows from it, the Lance Ito syndrome follows from it." That is not entirely untrue: Remember, this is a man who talks about his cases in terms of movies, with himself as the filmmaker.
But as unnerving as it may sometimes be, the ease with which O'Donnell moves between art and reality may also be his greatest asset. Consider the Buchwald case: He scripted the confrontations, he stage-managed the media into seeing it as a David-and-Goliath tale, and he even generated a tie-in book. In short, he did everything a studio might do to promote one of its movies. O'Donnell has co-opted the techniques of persuasion that the studios have spent decades honing and has turned those techniques against their creators. So while the prospect of attorney-as-star may be troubling, the image of a studio at the mercy of someone else's publicity machine, bedeviled by the same cheap emotional ploys and overheated rhetoric that are the film industry's lifeblood, is oddly gratifying.
Who knows? It may even be a sort of justice.