Written by The Business Journal Staff
Marshall Whitney, Partner
McCormick Barstow LLP
1973 – B.A., Mathematics, University of California, Santa Barbara;
1978 – J.D., University of California, Hastings College of Law
Married to Jeanne Willits Whitney, four children Andrea, Reid, Zach and Madeline. No grandchildren yet.
You’ve been practicing law at McCormick Barstow since 1978. Why did you choose to pursue a career in law, Marshall?
I was a mathematics major in college and enjoyed the analytical process, but I could not see myself pursuing a career in it for a number of reasons. I went into teaching for two years and really enjoyed the teaching experience. The practice of law was always in the back of my mind. I eventually considered the law because I viewed it as an honorable profession that would allow me to teach in a fashion and at the same time use analytical skills. I have been fortunate that those original views have proven true in my experience.
What has changed most during your more than three decades of practicing law, Marshall?
Technology is the most notable change. When I started there were no desktop computers, digital recorders, telefaxes, email, cell phone or document scanners. Computerized research had just started and only the largest offices and law libraries had the equipment and access to the database. That has all changed. Technology has changed the practice of law by greatly increasing the volume of material we must process but also improving our ability to quickly review, process and store information. Attorneys and clients now have a virtually instantaneous means of communication. While such technological changes have generally improved the practice and allowed for more flexible work environments, the pace of the practice has quickened and quiet reflective time is harder to come by. Attorneys need to be able to shut down and technology is a challenge to many who become a slave to their cell phones and email.
Your specialty is business litigation. What types of cases do you handle?
I practice in a relatively small, agrarian community that does not have many specialists, so my business litigation practice is quite varied. I handle basic contract and real property disputes, corporate and partnership disputes, occasional water rights disputes, significant construction project disputes and some intellectual property disputes. A large part of my practice also includes the defense of professionals, including attorneys, accountants and officers and directors.
Over the years, what was the most unusual or difficult case you have been involved in, Marshall?
My very first jury trial involved a legal malpractice case. My office was retained to defend a 36-year-old attorney who persuaded the 75-year-old widow of a local and successful farmer to part with a very substantial sum of her inheritance to invest in questionable transactions in which he was a participant. There were none of the required disclosures and waivers and often times the only documentary evidence was a check for the “investment.” The investments included a local ski resort. She had never skied and was in no condition to learn and had no interest in it. A very difficult defense case. I was the junior trial attorney in the case. The lead attorneys who tried the case were my mentor, Oliver Wanger, and his former partner Jack Baker. I had the distinct pleasure of participating in a 4-month jury trial watching skilled trial attorneys deal with difficult facts and witnesses. The trial judge was Charles Hamlin, one of my all-time favorite judges. He was a brilliant, unassuming, gentleman who had a facility for controlling his court and getting to the bottom line quickly.
This year you were named to the Top 10 Northern California Super Lawyers list by Super Lawyers magazine. How does this award compare with other accolades you’ve received during your career?
I am surprised and humbled by it. It is an honor to be listed in the same group as the other selectees. This is a unique honor. This recognition and my selection to the American College of Trial Attorneys stand out as recognitions I most appreciate.
Do you think people today are more or less litigious — and why, Marshall?
I have not observed any great shift in the mindset of people that would suggest people are more litigious than they were one or two generations ago. However, circumstances have changed over the years. I think people have been litigious throughout my career. My sense is that the economy always has an impact on the filing of lawsuits. In addition, court decisions in various areas, including summary judgments, contract enforcement, contract interpretation and damages have in my opinion eroded historical controls on unmeritorious and speculative claims and, as a result, have really done little to stem the tide of litigation. On balance, I suspect the incentive for litigation has probably been increased but I cannot say whether there has been any major shift in people’s fundamental values or attitudes.
What advice would you give a young person today who is considering a career in law, Marshall?
I have four children, three of whom are or were interested in the law. I have told them that a law degree is a useful tool for many trades and professions, but as time goes on, the cost of the degree requires a close look at your commitment. I would say to anyone considering the practice of law that our practice takes more than an ability to analyze and communicate, it takes perseverance, dogged determination, a thick skin and common sense. If you choose to proceed with this career, find good mentors. They will make all of the difference in the end.
What was the best advice you ever received and who did it come from?
Best professional advice was to follow these guidelines as much as possible:
1. We are in a difficult profession, don’t make it more so by making it personal;
2. Always conduct yourself with as much professionalism and dignity as you can muster;
3. Never mislead your adversary and always be candid with the court; and
4. Do your best and try your hardest and it will help avoid regrets.
Sources: A compilation of sage advice from Oliver W. Wanger (ret. U.S. District Court Judge, Eastern District of California) and Lawrence E. Wayte (partner at McCormick, Barstow, Sheppard, Wayte & Carruth)
What are your roots in the Central Valley, Marshall?
My great aunt lived in Visalia and I would visit her regularly as a child and young adult and grew to like the feel of the community. This helped influence my decision to move to Fresno, particularly after interviewing with and being so impressed with the firm I ultimately joined. I have now lived in this community for over 36 years.
What was your very first job and what did you learn from it, Marshall?
I have worked since I was 11 years old, but my first structured job was working at a full time gas station off of the Interstate 5 Freeway in Northern California. From working on a small family farm and from that job, I learned that I did not want to make a living with my hands out in the hot summer sun and that working with the public takes patience, understanding, and tact; skills that I feel obliged to continue to develop.
What do you like to do in your spare time, Marshall?
Golf, travel, go on motorcycle trips with friends, ride bikes for exercise and work in my yard.