Trial Pros: Davis Polk's Greg Andres Law360, New York (May 4, 2016, 2:16 PM ET)

Trial Pros: Davis Polk's Greg Andres Law360, New York (May 4, 2016, 2:16 PM ET) --

Greg Andres is a partner in Davis Polk & Wardwell LLP’s litigation department, concentrating in white collar criminal defense and representing clients in both civil and criminal trials. He has represented individuals, financial institutions and other entities in regulatory and criminal investigations involving market manipulation, insider trading, securities, procurement and tax fraud, and money laundering. He also has experience in anti-corruption matters.

Andres has conducted more than a dozen jury trials and supervised dozens of others involving financial fraud, FCPA, terrorism and organized crime. In private practice, he has served as trial counsel on a variety of matters involving antitrust Greg Andres claims, securities fraud, legal malpractice and FCPA issues.

He previously served more than a decade in senior government positions at the Justice Department, including as a Deputy Assistant Attorney General in the Criminal Division at the Department of Justice, where he supervised both the Fraud and Appellate Sections and managed the Department’s FCPA program. He previously served as Chief of the Criminal Division at the U.S. Attorney’s Office in the Eastern District of New York.

Q: What’s the most interesting trial you've worked on and why?

A: The most interesting trial I worked on was the prosecution of Bonanno family boss Joseph Massino. I served as the lead prosecutor. U.S. District Judge Nicholas Garaufis presided and empaneled an anonymous jury. The trial was hard fought and challenging, and involved dozens of crimes committed over three decades. Among the many witnesses were medical examiners, arson and firearms experts, dozens of state and federal law enforcement officials as well as the first made members of the Bonanno family to ever testify as government witnesses. The trial told the history of Cosa Nostra’s five organized crime families, its rules and secret ceremonies, and the brutal and prolific criminal activity it engaged in on a daily basis. The story principally was told from the vantage point of those involved in the crimes at issue and their credibility was a crucial issue. Bonanno family underboss Salvatore Vitale, for example, testified during the government’s case-in-chief as an accomplice witness. Massino knew Vitale for more than 40 years — he was Vitale’s brother-in-law and the best man at his wedding. Massino inducted Vitale into the Bonanno family in a secret ceremony. Vitale served for decades as Massino’s underboss and co-conspirator. Vitale directed Massino’s enterprise, enforced its rules and promoted and disciplined its members. Vitale detailed all this and more over days of testimony on direct and cross-examination. He summarized their lifelong relationship, noting that Massino taught him both to swim and to kill. Together, the two were involved in

numerous murders. Vitale’s account was at times gruesome, but both riveting and detailed.

At the time of the trial, Massino was the most powerful member of the Mafia in the United States. He was charged with a litany of crimes, including racketeering that involved everything from burglary and arson to murder, loansharking to gambling, money laundering and extortion. Victims were shot, and sometimes killed, in their homes, cars, warehouses, basements and on their doorsteps. Bonanno family associate Anthony Gilberti was shot nine times as he left for work. Bonanno family captains Dominick “Sonny Red” Indelicato, Philip “Phil Lucky” Giaccone and Dominick “Big Trin” Trinchera were murdered moments apart during an internecine war within the Bonanno family — their bodies buried in a vacant lot. Bonanno family captain Dominick “Sonny Black” Napolitano and soldier Anthony Mirra were executed for their unwitting roles in introducing FBI Special Agent Joseph Pistone into the Bonanno family. Agent Pistone used the undercover name “Donnie Brasco”. The facts of each crime, the plots and preparation, the location and execution, were cataloged with precision throughout the trial.

On July 30, 2004, after a 12-week trial, the jury convicted Massino of every charged crime and directed the forfeiture of more than $10 million in cash and property including Massino’s Queens restaurant Casablanca. Looking back, more than a decade later, among the most memorable parts of the trial was the tremendous teamwork and dedication of the very talented agents and prosecutors involved in the prosecution. As many have said, trials are a team sport. Each has gone on to significant positions in the defense bar, corporate America and the FBI.

Q: What’s the most unexpected or amusing thing you've experienced while working on a trial?

A: Each trial, and trial day, comes with a range of unexpected occurrences; many are amusing, although usually only in hindsight. Most often the judge plays some role in the unexpected developments and is occasionally the only one amused. During one trial, I was told by a clearly entertained district judge (sitting in the Second Circuit) that Seventh Circuit precedent was more persuasive than Second Circuit’s, while acknowledging that Second Circuit precedent was on point and that the judges on the Seventh Circuit were bright lights (and those on the Second Circuit less so). Another judge lent the defendant a tailored shirt for trial. I once had a lawyer testify at trial who repeatedly refused to answer questions while on the stand on the grounds that his responses would call for hearsay. After he heard each question, he would turn from the witness stand and lodge an objection with the judge.

Perhaps the most unexpected experience I had was the decision of Judge Jack Weinstein to grant my motion to adjourn the start of trial for only a few hours. Both the need for the motion and the outcome were surprising. Judge Weinstein had previously denied a similar motion. The rulings came before the trial of Eric Butler, a managing director in the private bank of a major financial institution. Butler was charged with securities fraud relating to loss of client funds in the auction rate securities market totaling more than $1 billion. The federal trial was the first prosecution resulting from the 2008 credit crisis.

As Butler’s trial was set to proceed, his co-defendant Julian Tzolov had violated bail, fled the country and remained on the run. As the lead prosecutor, I moved for an adjournment so that the search for Tzolov could continue and the defendants could be tried together. Judge Weinstein denied our motion. On the eve of trial, FBI agents located Tzolov in Spain. We moved for an adjournment again — this time for only hours — as Tzolov was scheduled to land at JFK airport just after jury selection was to begin. Judge Weinstein granted our motion and the FBI flew Tzolov back to New York, where he appeared in court, cooperated, pled guilty and later testified, providing a firsthand account of the defendants’ scheme. Tzolov recounted how he and Butler pitched and sold to their large corporate clients auction rate securities backed by federally guaranteed student loans and how, once they secured funds, they would invest instead in

securities backed by riskier mortgage debt, including subprime debt, credit card debt and corporate receivables, which yield higher returns. The jury returned a guilty verdict against Butler in hours.

Q: What does your trial prep routine consist of?

A: I start my trial preparation with — and spend hours modifying — an order of proof that details and organizes all the trial evidence, witnesses and exhibits in one place. I regularly circulate that document to the trial team for updates and review. I spend a great deal of time communicating with the trial team, whether on strategy, witness preparation or motion practice. I like to meet often, but not for long, before and during trial. I also believe that witness preparation is crucial. I do not believe a witness can be over- prepared, or more accurately, I do not believe I can be over-prepared in preparing a witness. Witnesses are rarely accustomed to a courtroom and trial. New facts always arise, often on cross-examination, and the more time I spend with a witness the better prepared I am to counter anything that may arise.

I also spend time perfecting my jury addresses both in terms of the theme and word choice. The underlying facts are often complicated and involve complex concepts. I take time to distill those facts and weave them into the trial theme so the jury understands what happened and why we should prevail.

While at Davis Polk, I was involved in representing a financial institution sued by a series of other banks and funds that had alleged fraud in the structuring and sale of a complex product. There was an obvious need to present the complicated facts for the jury as a clear narrative and in preparing for trial, we spent a great deal of time honing the language and theme of our presentation so that it would be direct and straightforward.

I also like to read transcripts or attend trials or proceedings before the judge who will preside and in the courtroom where my trial will be held, so I know where to stand, how to object and approach a witness and otherwise become familiar with the rules of the court.

Q: If you could give just one piece of advice to a lawyer on the eve of their first trial, what would it be?

A: Be confident, straightforward and well prepared. Judges, juries and adversaries can sense a lack of conviction and are unforgiving with respect to overstatement or misrepresentations. Emphasize the strengths of your case but acknowledge and concede the weak facts or legal precedent. Failing to cite adverse authority or hiding bad facts can be devastating.

Q: Name a trial attorney, outside your own firm, who has impressed you and tell us why.

A: Recently, I have been impressed with the work of Brad Brian from Munger,Tolles & Olsen. Together with Davis Polk partners Chris Hockett and Neal Potischman, I recently was involved in a series of antitrust class actions involving TFT-LCD displays. Brad served as co-counsel, including in a case tried in the Western District of Washington. Brad and his team had an impressive command of complex facts and a great presence in the courtroom. His presentations were clear and persuasive. He also understood the role of humor and levity in the courtroom.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.