The DNA of Advocacy, with Brendan Johnson

Brendan Johnson comes by his passion for civil rights honestly. The South Dakota-based litigator is a leader by nature – intelligent, likable, driven and inspiring. He embodies the ideals that change is possible, the future can be better for those who inhabit it, and who we are has a lot to do with the things we choose to fight for, amplify and uphold.

It is fitting that Johnson has found himself at Robins Kaplan, a firm with equally deep DNA. Robins Kaplan was founded by two Jewish men who had to pave their own way during the Great Depression, when antisemitism meant that they weren’t getting hired elsewhere. The firm has been dedicated to equal rights and inclusivity ever since, crafting the table at which all who are qualified are welcome to come and sit.

Johnson has been at the Robins Kaplan table since 2015 and was recently named Chair of the firm’s National Business Litigation Group. This is a role that suits the trial lawyer, and former United States Attorney for the District of South Dakota, quite well.

As a child to a U.S. Senator, Johnson grew up on law and politics. The heavily decorated and gifted trial attorney recounts accompanying his father on trips to the American Indian reservations as a child. It was important to his father to instill in Johnson a respect and an understanding of what these tribes had been through. Those visits and that connection has fueled Johnson’s work and shaped his career.

Johnson was nominated by President Obama and unanimously confirmed by the Senate to serve as the U.S. Attorney in South Dakota in 2009. He was subsequently selected by the U.S. Attorney General to chair the Department of Justice’s Native American Issues Subcommittee.

“The reason why I most wanted to be a U.S. Attorney was because of the violence against Native American women. One out of every three have been sexually assaulted, at some point in their lifetime,” says Johnson. “Native American women are the most victimized group in the United States.”

Johnson has been at the forefront of impactful litigation that is resulting in true change for the communities on behalf of whom he serves. He represented the Rosebud Sioux Tribe fighting for adequate healthcare on the reservation – at the 8th Circuit, the court ultimately ruled in their favor.

“It was a pretty historic decision,” Johnson says, “and one that I hope in time will be very meaningful and help improve healthcare on the reservation.”

Standing up for the underrepresented isn’t just what Johnson does, it’s who he is at his core. In 2023, Johnson was named on the Lawdragon 500 Leading Litigators in America guide.

Lawdragon: Brendan, tell us a bit about your background.

Brendan Johnson: My father was in the U.S. Senate for 18 years, he was a lawyer – so I was very involved in politics and the law from an early age. I moved back to South Dakota after graduating from the University of Virginia School of Law, and then clerked for a federal judge in South Dakota. After that, I was a local Assistant District Attorney prosecuting violent crime in South Dakota for a few years, before going into private practice as a partner in a boutique litigation firm. In 2009, I was nominated by President Obama and unanimously confirmed by the U.S. Senate to serve as the U.S. Attorney in South Dakota. I did that until 2015, when I joined Robins Kaplan.

It was under a pretty novel theory – we said that the Rosebud Sioux Tribe had a treaty right to adequate healthcare on the reservation, and that the federal government wasn't meeting its responsibility.

LD: Tell us a bit about your current mix of practice.

BJ: I consider myself a trial lawyer – I manage a fair number of trial teams. I've had trials in the last six months here in South Dakota and elsewhere, like San Francisco. My practice is less based on subject matter, and more based on high-stakes litigation. I do trust and estate litigation, white collar work and internal investigations for large corporations. I also work on behalf of Indian tribes throughout the U.S.

LD: When did you realize you wanted to be a lawyer?

BJ: Around the age of 13, when I realized I couldn't hit a curveball and I wasn't going to be able to play professional baseball. I became really interested in the Civil Rights Movement, and Bobby Kennedy in particular.

LD: Did your father encourage you?

BJ: I’ve read about professional boxers who tell their kids, “I was a fighter. You should not be a fighter.” It's almost the same with politicians. I think my father really liked the idea of me going into the law, but was less excited about the prospect of me going into politics. With all of his time in government and politics, he kind of missed being a practicing lawyer. I think he's been happy that my career path is a little different than his.

LD: You’ve made such an impact with your tribal lands work. How did that all start for you?

BJ: While my dad was in Congress, he made a point to bring me to the reservations with him on occasion. Five of the 10 poorest counties in the U.S. are actually in South Dakota, and they are American Indian reservations. My father instilled in me a respect for the reservations, he wanted me to understand them, to have friendships and relationships on the reservation. It was something that I had a real interest in, prior to being appointed as U.S. Attorney.

Native American women are the most victimized group in the U.S. The reason why I most wanted to be a U.S. attorney was because of the violence against Native American women. One out of every three have been sexually assaulted at some point in their lifetime. That's something that I really wanted to go into government for – to work with those communities and try to make them safer.

LD: Can you walk us through some of the changes you've made in those communities?

BJ: We represented the Rosebud Sioux Tribe pro bono, and we sued the federal government. It was under a pretty novel theory – we said that the Rosebud Sioux Tribe had a treaty right to adequate healthcare on the reservation, and that the federal government wasn't meeting its treaty responsibility. It went up to the 8th Circuit, and the courts ruled in our favor. It was a pretty historic decision, and one that I hope in time will be very meaningful and help improve healthcare on the reservation.

We also represent a large number of tribes across the U.S. in opioid litigation. As U.S. Attorney, I saw firsthand the damage that opioids had wreaked in Indian country and tribal communities. So it has been a great honor of mine to be able to represent the tribes now suing the major players of the opioid industry.

It's really the first time that tribes have taken part in mass tort litigation. Contrasting that with when the states sued the tobacco manufacturers – the tribes didn't participate in that litigation and as a result, they kind of got what the state Attorney Generals felt they wanted to give them. In the opioid litigation, the tribes have a real and aggressive seat at the table for the first time. That’s making a big difference, in terms of the damage recoveries they're receiving.

As U.S. Attorney, I saw firsthand the damage that opioids had wreaked in Indian country and tribal communities.

LD: How about the case you handled for Shared Hope International?

BJ: While I was U.S. Attorney, one of the things that we were really on the forefront of was prosecuting human trafficking cases. There have actually been very few life sentences for human trafficking in the U.S. During my time as U.S. Attorney, we successfully prosecuted and got three different life sentences on three different individuals who were involved in human trafficking in South Dakota. Additionally, we started prosecuting individuals who were on the demand side, who were soliciting or attempting to solicit human trafficking victims. We would prosecute them federally as well, which was pretty groundbreaking at that time.

LD: You’re also doing some incredible work with the Transformation Project. Can you tell us about that?

BJ: The Transformation Project is an LGBTQ+ advocacy organization that helps provide members of that community with access to healthcare needs, including suicide prevention. The government in South Dakota received some criticism because funding was going to the Transformation Project for providing those services in South Dakota, and their contract was subsequently terminated. So we represent the Transformation Project in litigation, currently ongoing, against the state of South Dakota and the governor of South Dakota.

LD: You have your hand in so many facets of civil rights work. But your practice also has business litigation, financial markets and some defense work, correct?

BJ: Yes, it's mixed. My civil rights work is very important. Much of the civil rights work we do, we don't do it out of a profit motive and usually, it's not terribly lucrative. But the DNA of our law firm is important here – we were founded by Jewish lawyers in Minnesota, who couldn't get hired by big law firms because they were Jewish. So, civil rights is something that's important to me and has been important to our law firm for a long time.

The majority of my work is in the courtroom on commercial litigation matters. I'm very involved in South Dakota. We have Fortune 500 companies that we represent, but we're also not afraid to take some of these cases on contingency, and try really big, meaningful cases across the U.S. We really are on both sides of the V.

LD: How are you settling into your new position as Chair of the National Business Litigation Group?

BJ: This role is really additive. I don't anticipate giving up any part of my regular work as an attorney and as a trial lawyer. So it just means I work a little longer in the day and a little bit on weekends. And that's okay, I want to do that. I love doing it – but I do it with the goal that it will not impact my regular caseload.

We have a history of great trial lawyers in our law firm and we want to continue to develop our next generation of great trial lawyers. We also want to continue to identify impactful cases that we will take on as a firm. Our firm had a recent judgment against BMO Harris Bank, for over $1B. So it’s important for us to continue to identify high-impact cases. We’re also committed to continuing our progress in markets outside of the Midwest. We have offices in New York, Los Angeles and Boston, and we want to make sure that those practices continue to grow and thrive.

LD: How does Robins Kaplan work to develop the firm’s next generation?

BJ: The moment that new associates walk through the door, we have an intensive trial training program that begins. But it's also about getting them real life experiences, and trying to get our younger lawyers into depositions or trial experience as soon as we can. We have several lawyers in our firm that have pretty robust trial practices – I’m one of them – and that's important in a law firm. You don't want to be known for always settling your cases. We’re a firm that's prepared to go to trial, when a case needs to be tried. We have that reputation.

LD: How would you describe your leadership style?

BJ: I think people would say my leadership style is collaborative and focused. I really enjoy having the opportunity to work with younger lawyers. I also have a good sense of areas of law and management that I'm particularly good at, and areas that I'm better off delegating. In my practice, I'm particularly involved in trying cases and making important decisions, and then I make sure to surround myself with great writers. I’m not afraid to trust other lawyers who have other areas of expertise that are different than mine, but just as important.

LD: What was something invaluable that you learned early on in your career?

BJ: For me, the path that made the most sense was getting experience in a broad range of areas – state prosecution, federal prosecution, personal injury work in South Dakota – having a broad range of experiences that help me provide good judgment to my clients. It's a big legal world out there, and it's important to be exposed to a lot of it. The more exposure you have, the more valuable that is for your clients, in the long run. It makes you a more well-rounded and creative trial lawyer.

LD: What other advice would you give to young lawyers?

BJ: One thing I would say to other lawyers is I think it's incredibly important for your practice to have meaning. When we talk about civil rights, we don't have enough lawyers and law firms stepping up to the plate. There is still a tremendous need, especially at this time in our nation's history, for good lawyers to be willing to take cases that may not always be in their financial best interest, but that do give meaning and purpose to their practice. It’s important for the younger lawyers in our law firms to appreciate that being a lawyer is about more than making money – it's about making a difference. As lawyers, we have a responsibility to embrace that.