THE POWER BEHIND THE GLORY

Swashbuckling attorney Wylie Aitken spearheaded the victories of Sanchez, Stanton and Small.

December 27, 1996

CHRIS KNAP: The Orange County Register

Before Loretta Sanchez shot down "B-1 Bob" Dornan, before Tom Umberg upset Curt Pringle, before Roger Stanton ever ran for county supervisor, each made a pilgrimage to see a gravel-voiced Santa Ana lawyer who wears his Democratic Party activism on his sleeve.

If you've never heard of Wylie Arthur Aitken, he'd be disappointed. For Aitken, 54, of Peralta Hills (Anaheim), loves nothing so much as being a player.

He is a trial lawyer with a file cabinet full of million-dollar verdicts who boosted the California campaigns of Democrats, a tactician who loves to turn opponents' own words against them.

It was Aitken who won a $2.1 million verdict for Laura Small, the 5-year-old mauled in a mountain lion attack at Ronald W. Caspers Wilderness Park. That case led Orange County to ban children from the park's wilderness trails.

It was Aitken who called the misconduct charges against Stanton unconstitutional, then proved it in the 4th District Court of Appeal -- a major defeat for District Attorney Michael Capizzi.

It was Aitken who championed a little-known business consultant who thought she could defeat a conservative icon from Garden Grove. They were both right, and today Loretta Sanchez is congresswoman-elect while Robert K. Dornan insists the election was stolen.

"Wylie's a very smart guy, a very savvy political operative," says state GOP Vice Chairman Michael J. Schroeder, Dornan's Santa Ana lawyer. "He was the one, more than anyone else, behind the Sanchez victory in deciding the money should start flowing into that race. Without him, Bob Dornan wouldn't have had a problem."

You might not expect such glowing praise from a Republican for a Democrat, but Schroeder also admires Aitken's victory over the prosecutor many Republicans say has overstepped his bounds.

"Wylie kicked Capizzi's butt," Schroeder says.

Aitken says he sees politics as an obligation -- a way to pay back a society that has been generous to him. But some find contradiction in his many roles.

For instance, Aitken is fond of saying that a virtual one-party system in Orange County has produced a crop of "inbred" GOP officeholders who make poor leaders.

Then he went into Superior Court and defended four-term Republican Stanton for failing to supervise Orange County's treasurer, arguing that there is a constitutional right for officeholders to be incompetent.

"I could ... run for office and probably announce to every voter that I have absolutely no intention of preparing for absolutely any of the board meetings because I have seen how the system works, I've seen how the lobbyists come in ... I see how they confuse the issues, and I have decided that the best way I can represent the citizens of Orange County is to totally not prepare, flip a coin and vote on any issue and go where that coin flips," Aitken told Superior Court Judge John W. Ouderkirk in March.

"And I have no doubt in my mind that the voters may choose to elect such an individual, and ... you could not possibly argue that it would be willful misconduct and subject to some kind of removal from office." Today Aitken laughs off the contradiction.

"Clearly you have incompetent people on the GOP side," he says. "But does that mean the DA should file action against a Dornan, a (Rep. Dana) Rohrabacher or a (state Sen. John) Lewis? That's not democracy. ... The threat of the DA hovering over all public officials is terrible."

Some criticize Aitken for injecting personal diatribes into his legal positions.

After Stanton's victory in the 4th District Court, Aitken said: "I think this is the worst lawyering I've seen in 30 years of practice. A first-year law student would have better sense than the DA exhibited in this case." Assistant District Attorney Wallace J. Wade, who brought the charges against Stanton, has been quietly smoldering under such attacks for a year.

"He's so personal," Wade says of Aitken, "the opposite of everything I was taught you were supposed to be. You can be an advocate, you can forcefully press strong arguments, without getting personal. "You don't have to make it a nastiness contest or ascribe ill motives to people. You can treat the law with dignity and people with dignity, too."

Aitken throws fuel on the fire.

"I have no problem with having taken that particular case personally," he says. "I perceived a closed mind and bureaucratic arrogance."

Born to Scotch-Irish parents in Detroit on Jan. 4, 1942, Aitken lived with them in Detroit, Chicago, Wichita, Kan., Birmingham, Ala., and finally, Garden Grove, as his father, a self-taught design engineer, followed the fortunes of the automotive and aerospace industries.

Aitken graduated from Garden Grove High School and was a cheerleader at Rancho Santiago College. He met his college sweetheart, Bette Robb, at a Garden Grove clothing store where they were both working part-time over Christmas. They have been married 33 years.

He received his law degree in 1965 from Marquette University in Milwaukee, where he was a St. Thomas More scholar. Aitken learned trial skills doing criminal defense work. He recalls winning his first trial, the case of a man caught driving with more than twice the legal limit of alcohol in his blood. Aitken presented evidence that showed the man had not consumed that much alcohol.

"It was a victory for the client, but I'm not sure I was representing the public very well," Aitken recalled. He became president of the Orange County Trial Lawyers in 1970, and in 1977, at age 35, he became the youngest president of the California Trial Lawyers Association.

Thomas V. Girardi, a Los Angeles trial attorney who is a member of the exclusive Inner Circle of Advocates, called Aitken "one of the premier trial lawyers in the state of California. He is dedicated, hard-working, absolutely relentless.

"What is that animal that will cling on to you and not give up its hold until late at night? That would be Wylie."

Over the past 15 years Aitken has won more than a dozen jury verdicts of more than $1 million, including $5 million for a young Fountain Valley lifeguard who suffered brain damage after minor orthopedic surgery went awry; $1.9 million for a Jamaican immigrant whose back was crushed by a gravel truck while he was laying pipe for the Tustin Market Place; and $2.1 million for Small, the 5-year-old girl who was partially disabled by the mountain lion attack. Orange County appealed, and Aitken settled for $1.5 million.

On his office wall is a framed greeting card showing frogs at play in piles of gold coins. "Thanks a million," the card says. "Laura Small."

Earlier this month Aiken added one more victory: a $3.78 million settlement for James MacLaren, an already-disabled athlete who was rendered a quadriplegic after a van was waved onto the course of an Orange County triathlon in 1993. Before the race MacLaren had signed a form waiving any liability claims against race promoters. Aitken likes to think that his victories have promoted a safer, fairer society.

"I would like to think I would be the poster boy for what's right with the system," Aitken said. Aitken's success has made him a millionaire -- although that term embarrasses him. He drives a Mercedes-Benz 500 SL and lives in a 10-room Peralta Hills mansion with a wine cellar, a pool and tennis court. The house was named, by its builder, "Cuernavaca," after the Mexican mountain town. Another embarrassment.

"Democrats aren't supposed to live in homes that have names," Aitken says.

Aitken's son Darren, 33, now in practice with his father in Santa Ana, says his father brings the same energy and enthusiasm to sports that he applies to law -- but not necessarily the same expertise.

"You see him flailing away on the golf (course) and tennis courts, often trying to make up with energy for what he lacks in technique," Darren Aitken said.

Darren Aitken said his father particularly enjoys challenging himself as a skier on amateur race courses, borrowing race skis that are 210 or 230 centimeters long, far in excess of what is recommended for a man but 5 feet, 7 inches tall. The elder Aitken sometimes arrives at the bottom wearing a coating of snow, but he wears such mishaps proudly, proof that he has given 100 percent.

"His style's not great, but his courage is high," his son said. Since he was elected president of the Young Democrats at Santa Ana College in 1960, Aitken has embraced the ideals of the Democratic Party.

He was a delegate to the Democratic National Convention in 1968 for Sen. Robert F. Kennedy, and he and Bette were at the Ambassador Hotel when Kennedy was shot to death by Sirhan Sirhan.

"It was a long time before I got so involved in a campaign again," Aitken said.

In 1976, Aitken again was a delegate to the Democratic National Convention, this time for Jimmy Carter. That same year, he supported Santa Ana Councilman Harry Yamamoto, a Japanese-American running for the Board of Supervisors. Aitken recalls that Yamamoto was defeated after Westminster Councilman Philip L. Anthony mailed out a "hit piece" suggesting that Yamamoto was under investigation for wrongdoing -- a false charge. Anthony won, but before his term was out he was indicted on charges of laundering campaign funds.

In 1980, a Fountain Valley councilman named Roger Stanton came to see Aitken. A Democrat, Stanton wanted to run against Anthony but couldn't get any support. Aitken took Stanton under his wing, and after a brainstorm, the pair turned the exact wording of Anthony's 1976 hit piece against him, swapping only names, photos and charges. "The difference was that Anthony was truly under indictment," Aitken says.

In the ensuing years Stanton would serve four terms and switch to the Republican party, earning sarcastic jibes from Aitken but not a loss of his confidence.

Aitken has already placed his Nov. 26 victory in the 4th District Court of Appeal on his legal resume: "Stanton v. Superior Court (The People). Limitation on right to remove public officials."

After four terms in office, a change in party allegiance and the payment of $225,000 in taxpayer funds to Aitken and Vincent LaBarbera to defend against the DA's misconduct charges, it may be difficult to see the similarities between the young Roger Stanton and the young Loretta Sanchez.

But Aitken says the two in fact had much in common: They were underdogs. They were willing to take on their party establishment. And they were committed to the campaign. Stanton took out a second mortgage on his house. Sanchez and her husband committed $120,000 of their own funds.

When other Democrats backed Michael Farber or Jim Prince in the primary, Aitken told Sanchez, "It's not how many people you have. It's whether you have the right people."

Insiders in both parties say it was Aitken who made Sanchez. And with Aitken now serving as chairman of the Democratic Foundation of Orange County -- a powerful fund-raising group -- his choice mattered.

"I give Wylie all the credit," said longtime Democratic strategist George Urch. "Wylie believed in her from the beginning, when no one else believed in her. He said, `We're gonna make it happen.' He raised hundreds of thousands of dollars and really came through."

"He is totally, singularly focused," says John Shallman, Sanchez's campaign manager. "He was our Michael Jordan, the money player.

"When we needed Dianne Feinstein to come in for a fund-raiser, there she was. When we needed Tom Umberg or Dick Gephardt, it was Wylie who got them."

In one strategy session, Shallman and Sanchez were looking at a letter from a Marine captain who had sent Sanchez $100 and criticized Dornan.

"We thought, `Wouldn't it be great if we had a military man, a Republican, supporting Loretta?' " Shallman recalls. "I went to Wylie and he made it happen."

Aitken approached retired Marine Col. William Dougherty, a trial lawyer who had recently won a battle with county GOP chief Thomas Fuentes. (Fuentes had tried to kick Dougherty off the Republican Central Committee after Dougherty endorsed President Clinton.)

Aitken showed Dougherty some background on Sanchez, along with news articles about Dornan, who served as a fighter pilot but does not have combat service, clashing with U.S. Sen. John McCain, a former prisoner of war. McCain's grandfather, an admiral, had given Dougherty his aviator's wings.

"Wylie said, `Why don't you write a letter?' I said, `I'd be delighted to,' " Dougherty recalled. "If my letter did help Loretta, I'm delighted."

In the letter, Dougherty, twice the recipient of the Distinguished Flying Cross, for 125 combat missions flown in three wars, calls Dornan a "war wimp" for failing to enlist during the Korean War and a "coward" for refusing to debate Sanchez.

"Wylie called me and said I've got this letter and I want you to see it," Shallman said. "(Dougherty) called Dornan a `war wimp,' a `coward.' It was everything that we needed."

Aitken and Sanchez designed a mailer in a 2 a.m. session. They included a photograph of the letter and a blowup of Dornan with the word "COWARD" stamped across his face.

Dornan would call foul, citing his military service and long support for a strong defense.

Aitken was typically self-confident in victory.

Told that Dornan had lamented, "Why is God doing this to me?" Aitken quipped, "Some of us wonder why he didn't do it a long time ago."

OC METRO Magazine, May 16, 2002

from "Top Trial Lawyers Tell All" by Kevin O’Leary

WYLIE AITKEN

Criminal attorney James Riddet says there are two phases to trial work - trial preparation and the trial itself and the outcome depends almost entirely on the preparation. If a trial attorney does succeed in a Perry Mason-like move it is usually the result of hours of preparation. Plaintiff attorney Wylie Aitken agrees with Riddet and Dahl on the overriding importance of solid preparation. Aitken says, "As someone once said, 'Before I was a genius I was a drudge.'"

Aitken has won a number of high profile cases during his career and is viewed as one of the top plaintiff lawyers in the state. He is regularly featured in "Best Lawyers in America." In one of his most recognized cases, Aitken represented Laura Small, the 5-year-old girl who was mauled by a mountain lion in Caspers Wilderness Park. The 1991 case, which sparked a national debate on public park safety, turned, in part, on the county's contention that mountain lions are very rare visitors to parks. Aitken, who has a flair for the dramatic, discovered during his research that another family on a hike in the park had taken a picture only to discover a mountain lion just behind them in the bushes. But because the photo was taken six months after the Small attack the photo was ruled not admissible. Hoping to get a chance to get the photo into evidence, Aitken had the photo blown up and kept it near his seat in court.

"I'm a big believer in demonstrative evidence," says Aitken. "Recreations, photographs, bringing in part of an aircraft, bringing in part of a railroad crossing signal. It all creates drama which makes it interesting for the jury vs. just dry, technical testimony."

In the Small case, Aitken had to wait until the county's expert witness got on the stand and argued that the lion attack that cost Laura Small an eye, permanent brain damage, some paralysis on her right side and severe facial scars was "a once in a lifetime event." He argued that if a mountain lion was in the certain vicinity, the next day that lion would be 20 miles away. Seeing his opportunity, Aitken asked the county's expert if he was sure of that. He said he was. At this point, Aitken asked to approach the bench and said, "Your honor, the time has come. I have that photo and it can impeach this witness. It was taken one day before a second mountain lion attack and fits with my argument that the county had a duty to warn the Small family that there was an element of risk in taking a hike in Caspers Park. Either the witness is sadly mistaken or else he is deliberately misleading the jury and that is for the jury to decide."

The judge turned to the other counsel and said, "You opened the door."

The Small case was difficult to win because most people's first reaction was "the mountain lion was doing what mountain lions do." But Aitken points out that the suit was brought not against the mountain lion but against Orange County for not adequately warning the Small family about the dangers of taking a Sunday afternoon walk in the park. In his research, Aitken discovered that O.C. rangers were not trained for a wilderness park; that the trails by the nature center and stream did not contain warning signs, thus giving family's a false sense of security; and that before the Small attack there had been multiple lion sightings including two "near attacks." Yet no public warnings were given, even after a park official had been instructed to do so by a state Department of Fish and Game wildlife biologist.

Still the case was an uphill battle because "there is a whole body of law protecting the government from being sued. The government expects us to do all sorts of things but they always exempt themselves."

On Christmas Eve, 1998, a tourist died and his wife was severely injured at Disneyland. Aitken represented the family in the wrongful death case where a metal cleat dislodged and flew off Disneyland's sailing ship Columbia, killing Luan Phi Dawson, a 33-year-old Microsoft computer programmer, and seriously disfiguring Lieu Vuong, his wife, in front of their 7-year-old-son. Before this case, California theme parks were largely exempt from many safety regulations and inspections.

Aitken says the Dawson/Vuong tragedy was "so preventable" and was due to a failure by Disneyland to do necessary maintenance. "These were Vietnamese immigrants who had come to the 'Happiest Place on Earth' and then this tragedy. The woman had already lost her first husband to a heart attack and now she was horribly hurt and her husband killed, all in front of their young child." The case was settled for an undisclosed amount (the Los Angeles Times estimate was $25 million).

"During our investigation we discovered that when Walt Disney was alive, there was a maintenance person at each ride. But the new management, the corporate marketers, did not think this was cost effective so they set up a centralized system. The problem was people would fill out work orders and the work would not get done. They could also dial 001. But one witness told us that 'if you dialed 001 your message went into a big empty hole and after awhile you just ignored the maintenance problems because they just didn't get addressed.'"

Aitken says Disneyland "clearly did not want to go to trial. We laid out our case for them to see. We gave them the roadmap. They knew. They just wanted to see if I knew and then they settled."

When he represents people who have been severely injured, Aitken often presents the jury with a day-in-the-life film. "I want to put the jury in the position of the plaintiff. It might show a boy who is a quadriplegic-getting out of bed. How hard that is, then feeding himself. Maybe going out in his van in the afternoon, and then ending with going back to bed. The jury begins to get the idea that this happens over and over and over again. Usually the film can be brought in with. the testimony of the wife or mother. I build the foundation by asking, "Have you observed your husband... is that film an accurate description?" A 30-minute film is powerful testimony and the opposition attorney faces a choice in deciding to challenge the film or -- simply let it pass:'

"You can't cross-examine a film and a smart lawyer like Milford Dahl will let it pass and not ask any questions," says Aitken. "But a lot of lawyers want to attack every witness. Sometimes your best friend is your opponent."

The key part of the trial for Aitken is jury selection. "You-need an audience that has an open mind to your story. Some people just don't believe in litigation." Aitken tells a story about observing a trial in Ireland to make his point. "I'm in Ireland with my son and we happen to see an automobile case in Dublin and I notice that the jury selection took no time at all. 'My heaven, I said, they took the first 12 jurors and off they went.' Afterward, I introduced myself to the barrister representing the plaintiff and I said, 'For all you know, there were 12 claims adjusters on that panel.' And the banister replied, 'I've won some cases I should never have won and lost some cases that I never should have lost. Let's face it, it all averages out in the end." And I thought, 'Yes, it averages out for the lawyer, but I don't want to be the 'client who loses the case that never should have been lost.'

"I always think of that when a judge asks that we hurry up with jury selection. I remind him that we've waited three years to come to trial and we can surely take a few more minutes to pick a jury."

Aitken say plaintiff lawyers get a lot of attention for winning large settlements from corporations. But he says making the case in a plaintiff suit is not easy. "The defendants don't have to prove anything. It's up to me to build the sand castle. It can be kicked down awfully fast. It's pretty hard to build it."

And the multimillion-dollar settlements are often the result of a jury deciding that a corporation needs to be punished so that it changes its behavior. Aitken says that when the jury is told by the judge that they cannot be prejudiced against a corporation and must treat the corporation as if they were an average citizen, he agrees with the judge and makes this analogy. "Now, if we drink and violate the law, we are arrested and fined possibly a week of our wages. So let's treat the corporation me same way. Let's look at a week's earnings." Then he shows the jury a page of graph paper with 500 squares. "This company is worth $500 million and it is based in New Jersey. How do we get the attention of their board of directors so they will not treat citizens of California in this manner? How many of these dots do we have to fill in to get their attention? What would be equivalent to one week's wages for this corporation?" It is very graphic and makes a point.

Early in his career, Aitken was the youngest president in the history of the state Trial Bar and shook the insurance industry to its foundation in a landmark case that helped change how insurers deal with customers. The term "bad faith practices" grew out of the Neal vs. Farmers Insurance Exchange case that went to the California Supreme Court in 1978. In its decision the court agreed with Aitken and wrote: "The defendant maliciously breached its duty of good faith and fair dealing ... The judgment was affirmed because it was supported by substantial evidence that defendant insurer maliciously breached its duty in conscious disregard of the rights of the insured."