Robert Birthisel is on “First Off, Let’s Kill All The Lawyers” with David Heffernan
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Welcome to another episode of First off, let’s kill all the lawyers. That phrase Shakespeare wrote back in the 15th century that was uttered by Dick the butcher to raucous laughter and applause, which today still people kind of go…. not a bad idea. Although one of the things I love about it now this show is getting a little bit of traction, I get all these calls from lawyers saying “you know, that was actually a flattering thing”. I think today, they still might laugh and thinking killing all lawyers is a good start. I’m David Heffernan and I’ve been practicing personal injury law here in South Florida for the past 30 years now, which is scary to think about.
The goal behind these shows, is to bring in lawyers from varying walks of life and fields of practice, and talk about different areas of law, get to know some of these lawyers a little bit and maybe one by one, we’ll just start checking a few of these people off of the kill list. And my guest this morning, and I’m just absolutely thrilled to have because we had dinner with a lot of our classmates last night from the 1991, graduating class at UVM Law School, which is where I met this gentleman. We’ve been friends for 30 years, one of my best friends, and one of the top maritime and Admiralty lawyers in the country. Chip Birthisel.
Thanks, Dave, that’s awfully nice stuff to say. And I wouldn’t come on before because I didn’t want to be killed.
Well, the goal here today is maybe we get you moved off that list, one at a time. So, one of the things that I think is fascinating about you, and I want to get into what maritime and Admiralty law is, and everything else, and again, that’s, we could spend a week talking about it. But one of the things I think is amazing about you is your story. And I and I want to go back, I want to go way back to a 17-year-old kid that wasn’t quite sure where he was going in life. Was he going to be a dropout surfer? What was he going to do and, and made a pretty critical decision? So, talk about the decision you made at 17. And then I want to talk about the benefits that came out of that.
Well, it’s kind of funny, I at 17, I was dropped out of high school. I didn’t see myself really going anywhere. My parents I was fifth generation Floridian my parents made the mistake to move me to Fort Worth, Texas, which was a long way from the coast that was a young surfer kid lived up in Cocoa Beach, Florida. So, we went out to Texas, I didn’t like it a whole lot, I figured the best way to get out of there would be to join the service. So, I joined the Coast Guard, which actually got me wide goal to go to California and surf and get around the country. Every place there was a coast and surf. And so that’s how I’ve gotten
out now at least we know the motivation was I’ll join somewhere where I can go surf. That was
part of it. The other part of it was that the drummer for my band that I had back then in Texas, we broke up, he went back to Florida because he had some family issues. And so, the band broke up and I had to go and get a real job.
All right, well, we’re going to look at a long-storied career with the Coast Guard. But one of the things I think is amazing is the way you took advantage of the opportunities. So, you’re a near high school dropout. But while you’re in the Coast Guard, you’re afforded the opportunity to get an undergraduate degree.
Yeah, you know, I got to tell you back then it was a, I joined I wanted to boot I went to boot camp in January of 1975. It’s a different world back then entirely. The military was a was a land of opportunity. I went in as a high school dropout made rate as fast as I possibly could move up, you know, enlisted ranks as fast as I possibly could. So, I started out as an E one. And then I retired 21 years later, as a lieutenant commander with a law degree. So, during that time that I was in, I was able to finish high school number one. Number two, went to University of San Francisco and got an undergraduate degree at night on the VA, then went to Johns Hopkins and got a master’s degree at night on the VA when I was stationed in Washington. And then the Coast Guard selected me for the law program, after I served on a fast patrol boat out of Miami. And, and I went to Miami and that’s where we met.
That’s where we met, and I can’t believe it’s 30 years ago. But was nice to have dinner with a bunch of the boys last night we are blessed to have a core of friends that go back that long. And I mean, we do it, you’re nice enough to come in from Tampa. But we have dinners every three months or so. And it’s just it’s amazing to see those guys.
It really is. It’s hard to believe it’s probably harder for you guys to believe 3030 years have passed than it is for me. I’m a bit I was the oldest guy out of the bunch. And so, I feel it a little more every morning. You guys do, but no, it is it is outstanding.
Alright, so let’s talk about that. So, the Coast Guard gives you an opportunity to get an incredible education. When you finish with law school, what was your commitment then? Because then you go to naval justice, right?
I did the commitment out of law school was five years. In fact, I had some people kind of fight me when I went in, that I didn’t have more time than that coming out of law school to serve in the Coast Guard. Because I only served the five-year commitment before I retired because I decided I wanted to retire at 38. So, I served in a capacity, as you knew, litigating and basically defending kids that were Why say kids, Coast Guard people, I was stationed with a Navy, I’ve defended Coast Guard, Navy and Marine Corps officers and then listed people at courts martial, a whole bunch of them, like hundreds over the years. I also prosecuted some of those. Then I went and I was the Coast Guard’s designated lawyer at justice at the Admiralty and aviation litigation section in Washington, which travelled around the country basically, on the east coast. There’s one on the West Coast as well, but traveled on the east coast and the Gulf Coast doing cases for the United States, typically, oil spill cases and defending the United States where they’re being sued for personal injury, wrongful death, that sort of thing. Usually, the Coast Guard would, you know, if somebody died in a rescue or whatever, they would sue us, right? So, you know, I did I did that for a couple years, and it was a perfect opportunity to go ahead and, and head out. So, I retired back in 19. I’ve been retired for 25 years now.
More importantly, during that time of prosecuting and defending Did you ever get a general on the stand and say, I want the truth? It’s not quite glamorous.
So tremendous opportunities, you retire a full commission Lieutenant Commander at the ripe old age of 38. And now set up and run your firm which you’re the one of the founding partners of Hamilton Miller and Bertha so let’s talk about now transitioning from sort of the military into now the real world and as I said in the intro, it’s maritime and Admiralty. So, what does that mean?
Admiralty is a body of law that deals with ships and shipping. Primarily, maritime is a broader concept it can also involve environmental and, and a variety of other things that just have to do with the water. So, by the time I retired from the Coast Guard between one of the things I didn’t mention in there is that when I was operational in the Coast Guard, you can’t just typically go be a lawyer, at least you couldn’t back then you can kind of now. But you had to transfer in and out of operational commands, which meant, in my day, since I wasn’t an aviator, that you had to drive ships, which is fun. I mean, so I got to drive ships for years. big ships, little ships, not aircraft carrier writings, but you know, the Atari 200 foot 200 plus and 373 178 foot destroyer, escort class vessels and that sort of thing. So, so I got to really, I grew up on boats as a kid. And then I did the Coast Guard thing for 21 years. So, it was almost like I was training my whole life to become if I was going to be a lawyer to become a maritime lawyer, right? And that’s kind of where I ended up. And it really has helped most of the people that I have associated with in my firm that I have had responsibility for hiring have had prior experience my friend, Jules Massey, who’s my partner over in Tampa, he was a fort Schuyler graduate at the maritime Academy in New York. Sail professionally for years. We’ve got you know, various licensed captains that work for us on pleasure craft, we got various my partner, Jennifer Siebold, has been on boats our whole life over in Cortez. So it kind of enabled me to form my own world of people that really knew the point in from the square into the round and if you will, and practice the law with a firm understanding in the Admiralty and maritime realm of what is going on the water.
Well and in in your practice, I mean, you do lots of consulting work and everything else. With shipping companies and you and I were kind of chatting coming over here. You know, other than then sort of the advancement of ships getting bigger and maybe faster and everything else, the world still relies on shipping to move everything around the world. We’re now in a position where supply chain has now become a household word, because people go, What can’t get anything? Oh, its supply chain, you know, what does that mean? Well, it means there’s 100 cargo ships, and we can’t get them unloaded and everything’s jam. So, talk about kind of just what that encompasses when you start working in that because it’s, you’re talking about countries around the world. I mean, you know, international trade back and forth with everything. So, what’s the type of work you do? And who are your clients?
Well, that’s funny, because I have a real general maritime practice, meaning I do a lot of work, defense work for marine insurers who assigned me to defend people, if you have an incident here on in Biscayne Bay, for instance, where somebody hurt or killed or whatever, or even just property damage, I’ll get hired by the insurance company, typically to represent the insured, which is the person who owns the boaters involved in the accident typically, and, and help them you know, defend them in court. And whatever the lawsuit is. The maritime world as part of that also encompasses because marine insurance deals with Surface Transportation as well. All the goods moving across this country by truck, all are insured by inland marine policies of some sort. I didn’t know that. So basically, everything that moves in this country or into this country and around this country, is if it’s insured is insured by some form of marine insurance policy. Even some of the aviation insurance is marine insurance. So, it’s a broad, it’s a broad, overall transportation perspective. This whole supply chain thing that we’re dealing with these days really is I think it really opened people’s eyes when the Suez Canal thing happened, right? And it’s like, well, you know, how can this one ship stuff? Well, first of all, how can you get you’re
going to get stuck? I mean, the layman sitting there going, are you driving the ship, and then I see a picture and it’s jammed into the bank. I’m like, that’s the drunk guy, you know, trying to dock his boat at Matheson not the professional Captain crossing the Suez Canal.
Well, you would think that and its but you know, stuff happens. Things like the Concordia, for instance, when that kind of stuff where you’re just kind of messing around, apparently, and not paying attention. It can happen just like you’re driving down Dixie Highway and not paying attention. Anything can happen. So, but I think everybody saw the importance of that, but it the Suez of transportation in the Suez Canal, particularly transportation by water, one ship stuck in the Suez Canal, can affect shipping worldwide for months, maybe even years, right. The backup in Long Beach right now and the other ports throughout the United States is an issue. The reason why that’s an issue too, is because we you know, in order to get the ship around here, economically, you got to go through a canal. Well, you know, shippers want to build bigger ships, and you can’t build bigger ships, unless you have big enough canals to get them through my site. It’s like you can’t get an 18 Wheeler across this country unless you have an interstate or decent size highway to get the thing across. So, it’s exacerbated not only by the fact that the ships are tied up in in or anchored off of Long Beach trying to get in. And it’s the problem that they’re having out there, I believe is primarily a labor problem, they can’t get enough or labor in space problem, they can’t get enough people in to offload those containers, right. And they got no place to put them once they offload them. Because if they’re not going to keep them on the on the port, there going to be have to go be dragged somewhere else to dredge which takes trucks, right so you got to have truck drivers to do that. And then once they get there, the Amazon guys got to hook up to that chassis and take it across the country wherever it’s got to go. And we all know that that’s there’s a huge shortage there. I’m in the I’m in the scope right now of are in the throes of trial. I just bought a new house few months ago when a new house it’s an old new house and I’m trying to get things fixed and repaired and you can’t get you can’t know anything to do it. I mean, it took me six months to get grass in my front yard. They almost threw me out of the neighborhood. So, everything that we do including aviation cargo relies on that aviation cargo is limited Of course by size, and weight. Things that move into this this town every single day by aviation modes are basic like flowers, fresh flowers get flown in every single day, right cruise lines and hotels and Disney and all that kind of stuff. But Everything else is moving my ships somewhere some form.
Alright. One of the things that fascinates me about Admiralty law is the ability to arrest the vessel. And I know you’ve been involved in that. And we always joke, you know how to get handcuffs big enough and everything else. But talk about that process because again, I think that that when people look at an Admiralty law, it’s so critical to have somebody with your expertise on it not only expertise, but connections as well, because it’s me it’s an archaic system. And that if you don’t understand the nuances of it, and you know, I mean, even on simple maritime things, the cases I’ve handled, and I’ve had plenty over the years, I’ll generally affiliate with a maritime council just to make sure we’re doing the right things. And we’re position because I want to do the service to my client that way, and I’m just talking about, you know, small boat cases or deaths or cruise line. But when you talk about the Admiralty law talking about arresting vehicles, how does that come about?
Well, that’s one thing about the maritime law is that it is archaic, and it’s, it’s, it’s got its roots. Back in the laws of old around, which is, you know, ancient laws. The laws are, frankly, somewhat consistent throughout the world with things like vessel arrests, and then so forth. Because we’re one big shipping world vessel arrest came about or the ability to arrest a vessel, the maritime law sees a vessel as an entity as a thing as a person, right. So that person can commit a tort, it can, it can be negligent, it can be, it can, it can purchase fuel, and not pay for it, and have to ultimately be arrested to pay for the fuel. So, what happens in vessel arrest, which is typically which is typically a primarily an only actually a federal court process and right entry, is you. Let’s say you chip shipped and pay for its fuel, you go down to the federal courthouse, you file a complaint against the vessel, you have the marshals mount up and ride down there and do what they call stickering. The vessel, they tie it up wherever it is, you put a custodian on board, and they take care of the vessel. And then the litigation begins over what is going to become of it who owes who owes what. And ultimately, the vessel because it’s like a person is ultimately responsible and can be sold at a marshal sale to pay the debt. Okay. And that’s really what it’s about. It’s about money. It’s about pain. Same thing in a personal injury case you can there a seaman, for instance, can arrest a vessel, it rarely happens, right? typically what happens is the threat of arrest allows the vessel owning company and or its insurer to step up and post either a letter of undertaking or a bond, which is just you know, as good cash. It’s like this, and we’re good for this and allow the vessel to sail because the vessel not sailing. Yeah. is huge money.
Yeah, I imagine you get the owners or the companies attention pretty quickly. When that vehicle now season, there’s marshals and they can’t move it anymore.
So as part of the maritime thought process, you always have to be thinking about what kind of exposures there are under old maritime principles like a rest that you typically don’t have to think about. And so, it is good to ask your maritime buddy a question if you got one. Absolutely. And an affiliate, because it’s, there are lots of little traps out there.
Well, one of the other things that that you see in maritime law, and again, the significance of it, is much like you see a lot of times with trucking cases and everything else. When things go bad. They go really bad. Okay. I mean, you know, they’re generally not little fender benders between two tankers. So talk about the scope of that. And I mean, you can talk a little bit of your own experience. I mean, I know you handled, and we’re a key part of the team, and so far, oh, you know, horrible, horrible case where that ship goes down and you’ve got deaths and all of that. How does that get orchestrated and done because you guys were able to resolve all of those claims, right?
We were and including the cargo claims, because you know, it’s not just the the horrible fact of losing crew members and family members. And that was a horrible thing. It was it was, I was proud to have been part of that, and allowed to be part of it was on the liability side for the company. There was a team of lawyers that was that was affiliated with that. And they were all run by the mike Holt, who was the head of tow At the time, the head legal guy at Toad at the time and he just did a super job of just keeping everybody in their lane keeping that many lawyers in their own room in a case like herding cats It really is. And he did a remarkable job at doing that. And you know, it’s funny sometimes the bigger cases are almost easier because there’s so many eyes on it that it must be watched carefully. I always tell my people when I do train with them and whatnot, and teach is that is that little case in the corner that little nothing $6,000 cargo case that’s just you don’t pay attention to right that’s the one that’s going to bite you.
Yeah, that’s the one because he’s not getting eyes at the top level yet. I mean, you get you get a disastrous event. You’re getting the people that need to be looking at it. Not the people down here that Yeah, yeah, we’ll deal with it. And I’ve been
really fortunate throughout my career when I was in the Coast Guard at justice. I was the lead counsel on the Tampa Bay oil spill case, which was huge and kind of allowed me ultimately way down the road to find my way back to Tampa. And as my justice job got me around the country and got to know all the other defense lawyers and a lot of the plaintiffs’ lawyers around the country in Admiralty so that the Coast Guard was just an absolute I know this is recruiting commentary for the Coast Guard Oh, no,
no, it’s just a bit but I like to look at it and I tell a lot of people your story just because I go listen in this is a kid truly at the crossroads that took advantage now don’t get me wrong, Coast Guard got what 28 years out of here, whatever. So, it’s not a matter of taking advantage like you won something from them. So pretty fair trade. But the fact that you were able to go undergraduate graduate law school, and then retire at a young age a fully commissioned lieutenant commander is an impressive story
with a pension 100% Well, you know, the cool thing I didn’t healthcare benefits, well, that’s, you know, you don’t really trust me, when you’re when you’re when you’re when you’re 20. Right. You don’t realize how important those health benefits are. When you
write and premiums are made for my firm, you realize how important
Me too, so it really is significant. And I was I was commenting the other day about how lucky I’ve been to be involved in certain things I was involved in now farro I was involved in most of the post open 90 big cases that came about after that legislation was written and passed. So, I did a whole bunch of oil spill stuff and then go off go figure once all this oil spill legislation was passed, and things were put in place that were much better than the Clean Water Act and that kind of stuff. The pollution incident stop course I’m speaking a little bit out of term because of what just happened.
I was going to say, have you read what happened in California? Yeah,
but it’s I’ve been fortunate enough. I was talking to my partner, Jules, who I mentioned earlier. And I remember when I persuaded Jules 16 years ago to come to work when I left a large firm and formed my own firm with Jerry and open the Tampa office. I talked to Jules about coming with me. So he and I were having, I know you’re going to find this hard to believe a beer few months ago, and I said, Well, since
you said, it’s singular. Yeah, I find it hard to believe. I said,
I said, Jules, did you ever think when you accepted my offer to come to work with me, instead of taking the offer from the bigger firms because he had all kinds of opportunities? I said, did you ever think that you would have had the opportunity to be involved in the Alfaro? Did you ever think that you know, which is probably the single largest, you know, maritime disaster in the past 100 years, right? I said, did you think that you’d ever go to the Supreme Court of the United States, which we did, about almost 10 years ago now, I got to tell you sitting in that room, and with the nine justices on a table on the other side, is an impressive play, I would imagine. So, I never figured I’d be doing that. But those kinds of things. arcs are exciting, and I’ve had an opportunity to do those even in addition to just meeting a lot of the work that I do nowadays, as I get older is yachts. I do a lot of mega yacht and superyacht sales and transactions and forming corporations and doing that kind of stuff in the Caymans. That’s exciting stuff because it gets to it takes me to places that are cool, I mean, I get to go to London a lot I get to go to Monaco I get to go to places where you know yachts are and that’s fun. So, it’s not just cargo, and personal injury and death and there’s a lot of fun sexy stuff to it too. And that my practice fortunately I’ve been able to do all of that
was talk a little bit about your firm Hamilton, Hamilton Miller and Bertha sell. I know all you guys well. ton of respect for the firm. Kind of talking about the formation of that and what you own. We’ve kind of talked about what you do, and I know Tampa is more specified to that. But what does the firm do in general?
The firm is a general litigation firm. It didn’t begin that way. Jerry, and Jen, Jerry Hamilton and Jen Miller, my primary partners from Tampa, I mean, I’m sorry, from Miami. I met them when we were all at a other maritime firm back in the mid 90s. color and how, in Miami, I went my way, I was one of the first people to head to a different place for that firm when it was when I was breaking up. And Jerry ended up kind of staying with that until we formed Hamilton, Miller and Bertha. So back in September, I got word from actually from mark out from Colin out that that Jerry was going to be leaving and they were going to be doing something else. So, I called Jerry said, you know, we should get together and do something. So we did Jerry has traditionally, he’s, first of all, just a great litigator, and a trial lawyer, and but he was doing a lot of cruise ship stuff because of the Miami right a lot of cruise ship stuff, a lot of Disney stuff, a lot of if you read about a case over in Jamaica, Jerry’s Jamaican, if you read about a case over in the islands somewhere where something went horribly wrong, and there were people, you know, flying down a mountainside on a little train or something like that, Jerry was usually right in the middle of that not driving the train. Well, I
met Jerry years ago, handling a cruise line case. And it was funny because somebody dug up the transcript of a deposition, we had find a captain or whatnot, and it had to be taken on a Saturday or whatnot. And let’s just say, Jerry, and I might have been a little contentious with a surprise during the scope of that deposition. But I got to know Jerry through that, and again, got to see and appreciate what a good litigation litigator he is, you know, and we went at it head to head and ultimately came to a resolution on it, but it was one of those, you walked away where you’re kind of like, I hate that guy. And then you go, but I really respected you know, that. And that’s kind of in the relationship with with Jerry and, and and Jen. So that firm, thriving and doing very, very well, what he kind of looking back, and I know we’re not at the end of this career by any stretch. But what do you look back that gives you great sense of satisfaction or pride when you look at what you’ve done as a lawyer.
You know, I think that, to be honest with you probably the most, the most satisfying work I did was in the Coast Guard getting kids out of trouble, right? When I was in the Coast Guard, doing that defense work, because kids make mistakes they do. And I made a mistake or two and, and but for the forgiveness that was inherent in the system now or then, which may not be as inherent in the system. Now. I was allowed to continue on and have a very successful career. I think everybody deserves that opportunity. I had a kid that I got out of some real trouble. And I won’t go into the details. But he was facing serious jail time. And I won his case. And it was a full-blown trial before a jury in Puerto Rico. I got a Christmas card from that kid for 10 years. Yeah, after that. And you know that those are the ones that are really the satisfying ones. I mean, the I in fact, I think I mentioned this to you last night, what I would really like to do in the last 10 years. And of course, the problem with being my age is that 10 the last 10 years is creeping up on you pretty quick. But I’d like to spend the more
generous, I’ll just say you’re on the back nine. I’ll give you a whole my last night.
I appreciate it. Because, you know, it’s probably more like the perhaps the last quarter Yeah, well, I don’t want to make this two more. But what I’d really like to be able to do and what I feel like I’ve since I’ve had such good opportunities and blessings, as I like to spend the last 10 years of my life working with some organizations like the Surfrider Foundation and people like that, to try and help clean up some of the plastics in the ocean. We got to that’s something we got to do something about. And, you know, I have lots of clients out there that have probably, you know, been part of the prospect as as the as the military, right dumping stuff at sea and, and I’d like to in the last part of my career be part of the solution. And that’d be my legacy, rather than just moving money from one side of the desk to the other.
It is nice to see that that the world is sort of waking up to the fact that we can’t just throw things in the ocean. Like that’s not the dumping ground and it’s while it covers two thirds of the world, it’s still limited to what we’re at and it has a huge impact so
they can’t find they’re not finding any fish that comes out of the ocean these days without microplastics in their, in their, in their gut somewhere and it’s just, it’s just horrible. We’re killing we’re killing our planet. Yes, we
are slowly but guys, that’s the only hug I’m going to do on the tree today. Guys, guys, like you hopefully can start to save that planet a little bit. But listen, I really enjoy spending time with you. This is always easy. We do this whether there’s a camera or microphone or not anyway, but I appreciate you coming in childbirth, the cell again, one of the top maritime and Admiralty guys in the country. And I know that firsthand, because I’ve watched it. And I’ve watched the ability of this guy to be able to pick up the phone and talk to guys with lots of stars on their shoulders, that a lot of people don’t have that connection to and so been a pleasure. Hopefully here’s one we can sort of just take them off the list, you know, put them into the good guy category. And we won’t kill all the lawyers. We’ll save this one. I’m David Heffernan. We’ll see you next week. Thanks, Dave.