David Esquivel ’97

May 20, 2008Duke Law News

Over the years, friends and colleagues have described Nashville antitrust attorney David R. Esquivel ’97 as “mild-mannered.”

That was before October 2005, when they watched him passionately argue a federal lawsuit on behalf of five Salvadoran plaintiffs whose families were tortured and murdered under military rule in El Salvador in the late 1970s and early ’80s.

In the high-profile, pro bono civil case, Esquivel successfully argued that Col. Nicolas Carranza, a former vice minister of defense in El Salvador who later retired to Memphis, Tenn., and worked as a museum security guard, should be held responsible for failing to prevent his military’s torture and murders of the plaintiffs’ family members, and for later failing to hold military officers accountable for the atrocities.

“I guess you could say I’m ‘mildmannered’ — except when there’s a need not to be,” Esquivel said recently in an interview from his office at Bass, Berry & Sims in Nashville. “There were times in that trial that didn’t call for ‘mildmannered.’ You can’t accuse someone of killing tens of thousands of people and be easy-going about it.”

After three weeks of trial, the jury returned judgments against Carranza for four of the plaintiffs; in the fifth case, the jury was split. The judge declared a mistrial and Esquivel, with his client’s support, voluntarily dismissed the case. Although the jury awarded the four plaintiffs $1.5 million each in compensatory and punitive damages, they probably won’t receive any money.

“We knew from the beginning that the plaintiffs weren’t likely to get any money,” Esquivel says. “So the most significant achievement was that the jury found Carranza liable for crimes against humanity. It was significant to the trial team and to our clients, because it acknowledges that what happened to them in El Salvador was part of widespread atrocities committed by the military against the civilian population. What happened with this case vindicated in a small way the brutality and violence that went well beyond these five people.”

Honored in 2006 as the Tennessee Bar Association’s Harris Gilbert Pro Bono Attorney of the Year, Esquivel only later realized how gutsy it was for him, then a fourth-year associate, to ask his 200-member firm to invest in a pro bono case that would require more than 1,800 hours of work over the course of two years and more than $100,000 in out-of-pocket costs to litigate. That’s not counting the 3,500 additional hours of time spent on the case by other Bass Berry attorneys, paralegals and staff, as well as the resources and time of attorneys at the Center for Justice and Accountability, the California-based nonprofit that asked Esquivel to take the case.

Esquivel had never even litigated a jury trial before. “I went to the head of the litigation department, who’s a wonderful lawyer and cares a great deal about community service, and said, ‘I’m fluent in Spanish and have this opportunity to try a case involving a part of the world in which I’ve always been interested,’” said Esquivel, whose parents fled Castro’s Cuba to come to the United States in 1960. “He immediately saw it as an opportunity to get involved and do the right thing.”

The experience of prosecuting the case was as overwhelming as it was exhilarating, Esquivel says. “The truth is that it took me about nine months to absorb all that happened. To go from no jury trial experience to trying a case for three weeks in federal court as lead counsel, with international media attention and heads of countries weighing in on things, was pretty amazing,” he says.

Esquivel praised Bass Berry, which he describes as a “model public interest firm,” and his wife, Katherine, also an attorney (and a former Skadden Fellowship recipient working for Legal Aid), for the sacrifices they made on behalf of the cause.

“Before I agreed to work on the case, Katherine and I made it a family commitment,” he said. “We had a young child and were expecting a second, and I knew I would be flying to El Salvador and California to interview witnesses and then litigating a lengthy trial, so sacrifices were necessary.”

Having since returned to the challenges of antitrust law — he and several colleagues are currently representing the New York Stock Exchange, which was ordered by the Securities & Exchange Commission to employ its own independent regulatory auditor to help prevent widespread rules violations on the trading floor — Esquivel says his pro bono work helped him mature both as a public servant and an attorney.

“This case gave me a chance to put together my skills as a lawyer. To use religious language, I’ve never felt more ‘called’ to anything in my life,” he says. “And my desire to take on a case like that was directly tied to what my parents taught me about the way governments ought to treat their citizens.” — Debbie Selinsky