Berke Profiled in National Law Journal Special Report on Five Winning Litigators for 2011

As part of a special report on five of the most winning trial attorneys for 2011 as nominated by readers, The National Law Journal profiled Litigation partner Barry H. Berke for his trial win for former Deutsche Bank Alex Brown investment representative, Craig Brubaker in a criminal prosecution in the Southern District of New York related to alleged tax-shelter fraud. Mr. Brubaker was charged with conspiring with three lawyers from Jenkens & Gilchrist, the former CEO of the accounting firm BDO Seidman, and others to deprive the IRS of billions of tax dollars through the use of allegedly abusive tax shelters. After a 10-week trial, Mr. Brubaker was acquitted on all nine criminal charges, the only defendant to be found not guilty on all charges.

The profile focused on Mr. Berke’s use of “theatrics,” in particular, a red handkerchief, during a four day cross-examination of the prosecution’s star witness, Erwin Mayer – a former partner at Jenkens & Gilchrist who was Mr. Brubaker’s primary contact on the tax-shelters. When Mr. Berke tucked the red handkerchief into his pocket, he was acting as a Florida real estate developer in consultation with Mr. Mayer, and Mr. Mayer was asked to answer questions as he would have answered such a client in real life; sans handkerchief, Mr. Berke was back in his role as defense counsel. The goal was to have the jury hear exactly what Mr. Brubaker had heard during his communications with Mr. Mayer. Commenting on the effectiveness of the strategy, Mr. Berke said “I think that having the jury see in action what our client was hearing was very helpful. I do feel that we were able to turn Erwin Mayer into a net positive.” Mr. Berke also made use of the strategy during his closing remarks as a way of subconsciously reminding the jury of Mr. Mayer’s testimony during cross-examination. Mr. Berke said “If you’re going to do something unorthodox, you tailor it in a way to make it more memorable for the jury. With five defendants, you have to make sure the jury remains focused on your client.” Although the use of a prop worked as part of his overall defense strategy, Mr. Berke did caution about their use, saying “I think that the most important thing when considering to do something novel or creative is to make sure there are no flips that can be done.” He said that some ideas “ended up on the cutting room floor, either because the government could flip it on me or it wouldn’t work.”