|Profile of Varians' lead SLAPP attorney:|
San Francisco Daily Journal (Front Page: FEB 15, 2002)
Litigator Lynne Hermle Is So Good, Colleagues Say, She Lulls Her Opponents Into Thinking She's on Their Side
By Craig Anderson
Daily Journal Staff Writer
"MENLO PARK--Lynne Hermle walks fast, talks loud, and -- upon learning of a favorable ruling -- says things like, "Isn't that cool?"
"One thing that will never be said about me," said the 45-year-old employment law attorney at Orrick Herrington & Sutcliffe, "is that I'm a reserved person."
Hermle is coming off a pair of major accomplishments.
In the courtroom, she won a verdict in December against two research scientists who for years posted caustic commentary about their former bosses and employer on Internet message boards. A jury found Michelangelo Delfino and Mary Day liable for defamation and ordered them to pay $775,000 in damages to the individual and corporate victims.
The case, Varian Medical Systems v. Delfino, 780187, was the first lawsuit of its kind to go to trial. Santa Clara County Superior Court Judge Jack Komar on Wednesday signed a permanent injunction barring the defendants from making certain accusations. Delfino and Day have vowed to appeal on grounds the proposed restrictions would violate their First Amendment rights.
And at her law firm, Hermle received a coveted professional honor last month when she was selected to serve on Orrick's executive committee. She is the first partner from the firm's Silicon Valley office to serve, and the second woman ever chosen.
Ralph Baxter, Orrick's chief executive officer, said Hermle was the overwhelming choice of the partners. He praised her committment to the firm and her ability to understand the viewpoints of different groups within it. "A lot of people have trouble thinking beyond their own division," he said. "She stands out among the partners."
Hermle does not fit the profile of old-style law firm leaders, "white men in gray suits," Baxter said. Lynne is unique -- a very outgoing personality. She's the kind of person who has a good sense of personal balance and doesn't assume that things are going to come her way."
Hermle, who joined Orrick in 1987, was asked eight years later to head the employment law group in the firm's new Menlo Park office. She started with one full-time and one half-time associate; the group has since grown to nine people. Her clients include IBM, Apple Computer Inc., and The Gap.
Plaintiffs attorneys consider her a formidable adversary who is thoroughly prepared, aggressive and ingratiating -- all at the same time.
"You know she's going to do everything possible to eviscerate your client," said Paul Smoot, an attorney with Anderlini Finkelstein & Emerick in San Mateo. Someitmes, he adds, a client is charmed enough by her that he forgets that.
"Where it works well is when she's deposing witnesses," Smoot said, admiring Hermle's ability to glean valuable information in an adversarial setting. "She's able to build a rapport with the main plaintiff. I remember constantly telling clients, 'Remember, she's not here to help us.'"
Smoot said Hermle takes advantage of the resources of her law firm and plays hardball during discovery -- a point that prompted tension between them. "I know there were some icy periods where the collegial atmosphere evaporated," he said.
He and other plaintiffs attorneys praised Hermle's professionalism, saying she is easy to work with and generally cooperative.
"I feel she's honest and direct and can value cases properly," said Alan Exelrod, a partner at Rudy Exelrod & Ziell in San Francisco. "I know she's going to do a thoughtful, throrough job and figure out the weaknesses in my case."
Jonathan Siegal, a plaintiffs attorney at Siegal & DeWitter in Oakland who has gone up against Hermle several times, praised her willingness to place her clients' wishes first and settle cases quickly instead of allowing them to drag out and run up the legal bill.
"The thing that distinguisshes Lynne from some of her brethren is that she's down to earth," Siegal said.
Hermle, who grew up in Campbell, worked the graveyard shift at Carrow's and Denny's to pay for college and then attended Hastings College of the Law. In 1981, she joined Corbett Kane Berk & Barton in San Francisco, an employment law boutique, after deciding not to seek a job at larger firms.
"I had believed those lies about big law firms being stuffy, that you had to be a certain gender," Hermle said.
Three years later, she committed what some colleagues said was career suicide and joined AT&T Corp. as in in-house attorney. She said the job was "spectacular fun." While at AT&T, Hermle hired Orrick as outside counsel and the firm subsequently recruited her.
She still had doubts about how she would fit in at a big corporate law firm, but was persuaded to take the job.
"From the moment I set foot here, I felt very connected to everyone I met," Hermle said. "I've love it ever since."
She was elected partner in 1991. She got married at around the same time and gave birth to a son in 1993.
Her reputation as a litigator has soared since then. A favorable profile in California Lawyer once mentioned that the opposing attorney in one cae three up repeatedly as pretrial motions kept going Hermle's way.
Delfino, whose online targets included Hermle and Orrick after the lawsuit was filed, referred to her tough reputation on cross-examination as part of an effort to portray Varian and its attorneys as the big-money bullies out to silence a dissenting voice.
As the two sparred near the conclusion of the rough-and-tumble trial, Delfino said: "I'm just waiting to see who will throw up first."
"Well, it's not going to be me, Mr. Delfino," Hermle retorted, without missing a beat.
Theatrics aside, the message board case was a difficult one. The sheer volume of postings -- more than 13,000 -- was enormous, and Delfino and Day initially conceded writing only few of them. This made it a challenge to get many of the postings entered into evidence. Hermle and her legal team also needed to assemble evidence, including videotapes from two Kinko's stores, to prove their claim that the defendants had impersonated their former bosses in online messages suggesting they had sexual affairs and were incompetent.
Delfino and Day kept providing new material, setting up a Web site documenting the case and continued posting new messages throughout the trial. Hermle introduced many of these into evidence, including several that were just hours old.
The other problem was how to persuade a jury to hold Delfino and Day liable for comments on an line forum where rude and offensive statements are commonplace. That, and the content of the pending injunction, are likely to come up again on appeal.
Hermle's strategy was methodical. She kept showing Delfino and Day copies of their own messages, and asking the defendants if their various claims -- of lying, extramarital affairs, sexual harassment, homophobia, sabotage and evidence destruction by Varian and its executives -- would be defamatory if false.
They conceaded that some, but not all, would be, but argued that all their statements were the truth, opinion or hyperbole.
The jury, which did not include any people who frequented Internet message boards, appeard appalled. One of the jurors marched up to Delfino and Day after the verdict and told them to "Knock it off!"
While she took considerable personal satisfaction in the message board verdict, Hermle said she tries to bring the same passion to all her cases.
"The jury has to understand that you bleed the blood of your clients," she said. "It helps enormously if they find you honest, and it doesn't hurt if they find you to be interesting."
Retired Santa Clara County Superior Court Judge LaDoris Cordell saw that aspect of Hermle's character during a hotly-contested and legally complex retalitaion case tried in 2000, Pi v. IBM,, CV 768413. The employee, Betty Pi, said she was fired after she complained about sexual harassment. IBM denied the charges and ultimately prevailed.
Hermle, Cordell said, "comes alive in the courtroom. The adrenaline is pumping. I was delighted because I could sit back and be entertained."
"Lynne is a strong personality," Cordell said. "That's the mark of a good litigator."
On her office door, Hermle has put up a quotation, the origin of which she does not know: "To be warm and loving is important, but it is equally important to be fierce when necessary and come out kicking a-."