March 2018 Bar Bulletin
By James H. Keale
Not more than two years out of law school, Christopher Marks sat by himself for the first time as first chair in a rural, two-judge county 100 miles east of Seattle. As he stood before the jury defending a bus driver in a $1-million personal injury case, his excitement surpassed his anxiety because he was confident and comfortable telling the story — and he knew how it was going to end.
A man who claimed that he fell on a Greyhound bus had asked the jury for $1 million, including future lost earnings. During the months leading up to trial, Chris deposed over a dozen witnesses, including experts and the plaintiff’s former employers. But something seemed off about their testimony and the plaintiff’s income as depicted in the tax returns he had produced in the litigation. After doing some more digging and making a trip to the IRS office in Seattle with a court-ordered authorization in hand, he discovered the plaintiff had lied on the tax returns he submitted in response to discovery in the case. The amounts were significantly greater than the amounts he had actually submitted to the IRS for the same years.
In the middle of trial, the plaintiff’s economic-loss expert spent a half day painstakingly detailing the calculations that resulted in the $1-million claim, telling Chris that the calculations were based entirely on the tax returns produced by the plaintiff during the case. He had not been shown the certified copies of the tax returns that the plaintiff had actually filed with the IRS. As the jury watched the drama unfold, Chris deposited two blown-up copies of the certified tax returns before the expert, showing the plaintiff’s earnings to be half what he claimed. “It was a true ‘gotcha’ moment,” Chris said. “At that point, the trial was over, even though we had a week left to go.” Chris was right: He was still loading boxes into his car when the jury came back with a defense verdict — only 30 minutes after the trial concluded.
Twenty years later, Chris is still telling stories, shaping the facts so judges and juries see them in a particular way. Although he hasn’t experienced many of those “gotcha” moments, the Seattle product liability and toxic torts attorney has won a number of other cases in several states involving millions of dollars, building a national reputation as an effective trial attorney, especially in asbestos litigation work. In fact, he’s often the attorney clients call first when they realize their cases are going to trial. His success keeps his dance card full, with Chris often double and even triple set for trial.
The Theater of the Court
Chris’s national reputation was one of the reasons he was recently tapped to lead Tanenbaum Keale’s new West Coast office in Seattle. Chair Michael Tanenbaum said, “Chris is an exceptional litigator and one of the preeminent lawyers in product liability, catastrophic injury and toxic torts.” He is licensed to practice in Washington, Oregon and California, and has chaired several tort and litigation committees for the American Bar Association. He also is the current chair and a faculty member of the ABA Tort Insurance Practice Section’s National Trial Academy, which will take place at the National Judicial College in Reno from April 14–18.
Legal knowledge, extensive preparation and experience all contribute to how effective attorneys are in the courtroom. But ultimately, Chris said, it comes down to that interaction between the trial attorney and the jury.
Chris credits his early exposure to acting for improving his ability to read a jury and to think on his feet. When he was 10, his mother spotted an audition announcement in the newspaper for a local production of “A Christmas Carol.” Although Chris didn’t land the role of Tiny Tim, he played all of the other eight or so children’s parts and continued as a cast member in the production for the following eight seasons. “Telling a story is so much of what we do in trials,” Chris said. “Unlike theater, though, trials are unscripted. We make any number of decisions in trial based on how we think jurors are receiving the evidence. So, being the person who can tell that story brings in a lot of aspects of theater — everything from how you read the jury to how to present the facts live in front of the jury.”
The opportunity to be creative played a large role in his decision to become a lawyer. After earning an undergraduate degree in political science and taking many French classes at the University of Washington, Chris studied in Paris for a year and then received a master’s in economics at the London School of Economics and Political Science. Even though he was encouraged to pursue a doctorate degree in economics, he decided to return to the Pacific Northwest to earn a law degree. Trial work was always the goal for Chris, even before he graduated cum laude from Seattle University School of Law in 1998. His first job out of law school was with a smaller insurance defense firm, Merrick Hofstedt & Lindsey, which provided him with the ideal environment to see how accomplished litigators build and present a case, and with myriad opportunities to hone his skills in the courtroom.
At that time, Chris said he wasn’t even aware of the asbestos litigation that would help make his career. It was only after he joined Williams Kastner in 2000 that he was drawn into this type of litigation. Through the years, asbestos cases consumed more and more of his time. He became part of national counsel teams, working with lawyers throughout the country. Even though most companies stopped using asbestos in the 1970s, Chris thinks the cases will continue to keep him busy, at least in the next few years. In 2016, six of his seven trials involved asbestos. All four of his trials in 2017 were asbestos cases, and he expects to keep on that pace in 2018.
The Next Chapter
Nearly all of these trials will take place outside Washington, which takes a toll on Chris, his wife, Ellen, and their three children. Yet he has worked hard to carve out time in his work schedule to coach women’s lacrosse on Mercer Island, referee soccer games in King County, and participate in other community organizations through the years. But maintaining work-life balance has always been a challenge.
“My first year out of law school, I remember other lawyers telling me that time with my children was going to go by too fast,” Chris said. “I don’t think I really appreciated that until my oldest daughter was midway through high school, and I started seeing those milestones — like her last lacrosse game — come and go. You always think there’s enough time, and there isn’t. “People talk a lot about trying to make ‘quality time.’ I’ve come to realize, however, it’s all quality time. Just being there and being fully present for your kids is really what it’s about. When I’m on the sidelines, I keep my phone in my pocket.”
Chris can’t remember a vacation in which he didn’t work evenings or early mornings while the family was sleeping. He credits Ellen and his supportive family for helping him stave off the burnout so common in the field, especially among litigators. He also carves out an hour most days to practice yoga. As long as he can be in front of a jury, though, Chris said his work will remain rewarding. After all, Chris Marks can tell a good story — if you are his audience and not his opponent.
James H. Keale is a partner at Tanenbaum Keale LLP. His practice focuses on defending manufacturers from a variety of industries in the areas of product liability, personal injury, commercial and specialty, and catastrophic tort litigation.