Don Willenburg

Partner

  • Office Contact Info
  • Biography

    Don Willenburg is chair of the firm's national Appellate Practice Group. Described as an “appellate luminary” by the journal California Litigation, he is past chair of the Appellate Practice Section of the Bar Association of San Francisco, and for the last decade-plus has chaired the amicus briefs committee of the Association of Defense Counsel of Northern California and Nevada working to advance causes important to the defense community.

    Mr. Willenburg has won appeals and writs in cases involving product liability, employment (discrimination, harassment, wrongful termination), construction defects and disputes, the “going and coming” rule, and other areas. He is editor of the firm's blog Environmental and Toxic Tort Defense Insight.

    Appellate lawyering is not “just” appeals and writs. Summary judgments and other dispositive motions are part of the specialty, as is serving as “appellate monitor” in a high-stakes trial to help shape arguments and create the best record for possible appeal. And sometimes the best advice you can get from an appellate lawyer is to not pursue a writ or appeal, or a particular argument in connection with either. Even when the trial-level defeat really stings.

    Mr. Willenburg has guest lectured at the USC and Pepperdine law schools, and been a moot court justice at a number of law schools in Los Angeles and San Francisco. He is a frequent author and lecturer on appellate procedure, evidence, expert witnesses, SLAPP and section 998 settlement offers. He has volunteered as judge pro tem, and as a Penal Code section 1524 special master accompanying police executing search warrants that cover privileged material.

    Admissions

    United States Supreme Court
    California
    United States District Courts, California
    United States Court of Appeals, First, Fifth, Ninth, and Tenth Circuits

    Memberships

    Association of Defense Counsel for Northern California and Nevada, Member,
    Board of Directors and Chair, Amicus Briefs Committee
    Member, Information Technology Advisory Committee to Judicial Council of California

  • Practice Areas
  • Representative Experience

    Mr. Willenburg’s practice has included:

    • Successfully defended a school district against claims of Constitutional violations for protecting student safety regarding students wearing American flag-themed clothing at a Cinco de Mayo celebration. Dariano v. Morgan Hill Unified Sch. Dist., 745 F.3d 354 (9th Cir. 2014).
    • Successfully defended an award of attorney fees against a frivolous FEHA plaintiff, despite the absence of what precedent called “unwaivable requirement” for such an award. (Robert v. Stanford University (2014) 224 Cal.App.4th 67.)
    • Briefing two cases that resulted in decisions limiting product liability by rejecting a defendant’s liability for harms caused by the products of other parties “foreseeably” used near the defendant’s non-defective product. (Merrill v. Leslie Controls, Inc. (2009) 179 Cal.App.4th 262; Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564.)
    • Arguing and winning a decision from a California Court of Appeal requiring fair disclosure by plaintiffs in civil cases of documents submitted to asbestos bankruptcy trusts. (Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481.)
    • Defeating a tobacco company’s attempt to force its insurer to pay for smoking lawsuits.
    • Conducting an in-court sale of “Spiderman” motion picture rights.
    • Structuring the financial reorganization of Seabrook nuclear power plant.
    • An amicus brief persuading the California Supreme Court not to impose needless restrictions on nonprofit organizations that provide legal services. (Frye v. Tenderloin Housing Clinic, Inc. (2006) 38 Cal.4th 23.)
  • Publications & Presentations

    Publications

    Presentations

    • Expert Witnesses and Hearsay: People v Sanchez. Association of Defense Counsel of Northern California and Nevada, Toxic Torts Section. (April 27, 2019.)
    • Understanding SLAPPs: Process and Procedure from Initiation through Appeal. Hotel Nikko in San Francisco. (April 5, 2019.) Co-presenters included Justice James Richman and Justice Terence Bruiniers (ret.) from the California Court of Appeal and three expert SLAPP practitioners.
    • Sanchez, Experts and Hearsay: Tricks and Traps. Association of Defense Counsel of Northern California and Nevada, Annual Meeting. (December 6, 2018.) Mr. Willenburg’s co-presenters were Justice Louis Mauro of the California Court of Appeal and civil practitioner Kristie Sager. 
    • SLAPP and 998 Update: What You Don’t Know or Don’t Do Could Sink You. Contra Costa County Bar Association MCLE Spectacular. (November 16, 2018.) Mr. Willenburg’s co-presenters were Justice Ignazio Ruvolo, California Court of Appeal (ret.) and Professor Gary Watt (Hastings).
    • The Fine Art of Legal Writing and Advocacy.  Association of Defense Counsel of Northern California and Nevada, “Basic Training” series. (October 18, 2018.)
    • Key California Cases 2017-2018. California Lawyers Association Litigation and Appellate Summit (October 5, 2018.)
    • Ethics in Appellate Advocacy - with Redding Superior Court judges Tammy Wood and Stephen Baker, and Prof. Gary Watt. Shasta-Trinity Bar Assn., Redding, CA  (May 5, 2017)
    • What to Do and Not To Do with Technology - with California Court of Appeal Justice Jon Streeter and Harry Chamberlain.  Advanced Appellate Practice Seminar, San Francisco  (January 27, 2017)
    • Ethics in Appellate Advocacy - with California Court of Appeal Justice Jon Streeter and Gary Watt. Advanced Appellate Practice Seminar, San Francisco  (January 27, 2017)
    • How to Turn a Loss Into a Win, and Vice Versa: Section 998 Settlement Offers - with California Court of Appeal Justice Mark Simons and Prof. Gary Watt,  Association of Defense Counsel of Northern California and Nevada Annual Meeting  (December 8, 2016)
    • Ethics in Advocacy: Attorneys Behaving Badly - with California Court of Appeal Justice Peter Siggins and Prof. Gary Watt, Contra Costa County Bar Association, MCLE Spectacular  (November 18, 2016)
    • How to Turn a Loss Into a Win, and Vice Versa: Section 998 Settlement Offers - with Prof. Gary Watt and Beau Burbridge, Bar Association of San Francisco  (November 8, 2016)
    • (1) What’s New in Appellate Practice and Technology and (2) Protecting and Presenting the Record - Advanced Civil Appellate Conference, Pincus Presentations  (February 25, 2016)
    • Ethics in Advocacy – Appellate and Otherwise - ​with Justice Peter Siggins and Prof. Gary Watt. Association of Defense Counsel of Northern California and Nevada Annual Meeting  (December 10, 2015)
    • Perfecting and Imperfecting the Record for Appeal - with Justice Mark Simons and Prof. Gary Watt, Contra Costa Bar Association MCLE Spectacular  (November 20, 2015)
    • Expert Witnesses and Mega-Data Studies - Appraisal Institute, Northern California Chapter  (May 21, 2015)
    • California Asbestos Appeals in 2014 - HarrisMartin Presentations,  (December 10, 2014)
    • Perfecting and Imperfecting the Record for Appeal - with Justice Mark Simons and Prof. Gary Watt. Association of Defense Counsel of Northern California and Nevada Annual Meeting. www.adcncn.org,  (December 4, 2014)
    • California: A SLAPP Happy State? - with Justice James A. Richman and Prof. Gary Watt. Contra Costa Bar Association MCLE Spectacular,  (November 21, 2014)
    • Perfecting and Imperfecting the Record for Appeal - Bridgeport Conferences,  (July 10, 2014)
    • Attorney Fees, Please - Association of Defense Counsel of Northern California and Nevada Annual Meeting. www.adcncn.org,  (December 12, 2013)
    • Sargonauts and the Golden Fleece (re expert witnesses) - with Justice Mark Simon and Prof. Gary Watt. Contra Costa Bar Association MCLE Extravaganza. www.ccba.org,  (November 22, 2013)
    • Disappearing Dollars: How Section 998 Offers Can Make Or Break Your Case - Association of Defense Counsel of Northern California and Nevada Annual Meeting.  www.adcncn.org,  (December 6, 2012)
    • Attorney Fees, Please – about section 1717 and contractual attorney fee awards.  Panel includes Prof. Gary Watt (Hastings) and Associate Justice Mark Simons.  Contra Costa Bar Association MCLE Extravaganza.  (November 16, 2012)
    • Appellate E-Filing, with Associate Justice Terrence Bruiniers.  First District Appellate Symposium. http://www.sfbar.org/,  (November 9, 2012)
    • Disappearing Dollars: How Section 998 Offers Can Make Or Break Your Case. Santa Clara county Bar Association  (May 2012)
    • Disappearing Dollars: How Section 998 Offers Can Make Or Break Your Case. Contra Costa Bar Association  (April 2012)
    • Disappearing Dollars: Post-Trial Motion Verdict Reductions at Contra Costa Bar Association MCLE Spectacular  (November 2011).
    • How Reid v. Google Will Affect Your Summary Judgment, Employment Discrimination, and Appellate Practices/ Co-presented with an employment law specialist on this key California Supreme Court case, after having "mooted" one of the advocates before arguments in that Court.  (November 2010) 
    • CCP 998 Offers to Compromise: The Pitfalls and How to Avoid Them  Co-presented with a First Appellate District justice and a practitioner who is also an assistant professor at Hastings School of Law.  (November 2010). 
    • Everything But the Briefs: Motions and Other Appellate Filings Mr. Willenburg moderated a panel of research attorneys from the Ninth Circuit and California’s First Appellate District on matters of special interest to appellate practitioners.  (October 2009) 
    • Putting Your Best Foot Forward: Make Your Appellate Briefs and Arguments More Effective Mr. Willenburg co-presented this seminar with a professor from Golden Gate University School of Law and a First Appellate District justice.  (April 2009)
    • Mr. Willenburg moderated an all-day appellate practice seminar with over a dozen justices of California's First Appellate District, including the presiding justice, to an audience of nearly a hundred attendees. The event is presented triennially by the First District and the Appellate Practice Section of the Bar Association of San Francisco.   (November 2008)

     

  • Education

    Education

    J.D., Stanford University, 1984
    • Member, Stanford Law Review; Stanford Journal of International Law
    • Various editorial positions on The Stanford Daily  
    B.A., magna cum laude, Loyola University of Chicago, 1978
    • Member, Jesuit and political science honor societies

    Honors

    Top Rated Lawyer-AV® Preeminent™, Martindale-Hubbell

    Super Lawyers® distinction in the fields of Appellate, Personal Injury Defense: Products and Employment Litigation: Defense (2013-2020)