A Trial Lawyer
Walking into my office you will see a framed playbill of the September 3, 2003 fight between Oscar de la Hoya and Shane Mosley aptly titled “Redemption”. De la Hoya lost to Mosley in a split decision in 2000 and this was the fight that could bring redemption. After a 12-round bout with no knockdowns, Mosley was awarded a controversial unanimous decision that is still argued about in boxing circles. The playbill reminds me that even the greats lose from time to time, so remain humble. It also reminds me of the great Mike Tyson quote, “Everybody has a plan until they get punched in the mouth.”
Some lawyers fear the courthouse due to insecurity, bashfulness and lack of confidence: They should read this. If you didn’t finish at the top of your law school class: You should read this. If you did finish at the top of your law school class: You should read this. If you are not a lawyer but looking for a story of confidence, perseverance, and persistence honed through trial and error, you too should read this.
If you don’t have a mentor, read this and email me with questions (email@example.com). I am committed to helping you avoid my mistakes and become the best trial lawyer you can. These are practical real-life examples of what lies beyond the bar. Education begins upon graduation and most of what matters is learned through trial and error. Nothing here is intended to take away from the incredibly important work of briefing, appellate, and case management lawyers. They are indispensable. As a sole practitioner, we wear all of those hats.
I’ve lived the John Grisham novel, packed with the treachery, insults, surprises, failures and successes endemic to the practice of law. I too am a work in progress, and I have no idea how this story will end. I show up every day hoping that a person with a righteous cause will knock on my door or send me an email. You should too.
This compilation of case stories and experiences details successes and failures I’ve had along the way. I’ve suffered embarrassment, failure, and disrespect along the way. I’ve experienced success, recognition and respect as well. Occasionally, loneliness and doubt have crept into my mind. The most important factor in my longevity is persistence. Through it all, I’ve shown up, suited up and focused. There is a path forward. The power is within you.
“Nothing in the world can take the place of Persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and Determination alone are omnipotent. The slogan “Press On” has solved and will always solve the problems of the human race.” Calvin Coolidge
Deborah Hayes v. Wyeth Pharmaceuticals (2004)
Fen-Phen was a diet drug manufactured by Wyeth Pharmaceuticals. For many patients it worked. For many, it caused heart valve damage, and for some, a deadly condition called primary pulmonary hypertension (PPH). The first round of Fen-Phen litigation in the late 1990’s was wildly successful as Texas plaintiff’s lawyers Kip Petroff, George Fleming, Kathy Snapka and others won state court verdicts while the lawyers in the Federal Multi-District Litigation in Pennsylvania exposed the known dangers of the drug and the manufacturer’s failure to warn. The jury verdicts helped push a nationwide settlement of thousands of cases and a court approved second wave process for litigation of opt-out claims. The “opt-out plaintiffs” could pursue their claims without punitive damages and in turn would not receive the six thousand dollars being offered under the national settlement agreement.
I handled Provost Umphrey’s first wave of Fen-Phen cases and remained in charge of our opt-out clients. To me, no client should take the six-thousand-dollar settlement since the signature injury was heart valve damage. Despite Wyeth’s assertion that most valve injuries were minor medically, we believed juries would offer more in compensation. After all, what matters more than the heart?
The American civil justice system is critical in balancing the rights of the individual with those of the corporations. The uncertainty of jury verdicts creates the tension that allows David to take on Goliath. Without uncertainty and the legitimate risk that Goliath gets harmed by a well-placed stone, Goliath would stomp on David at every turn. Jury trials create the leverage that keeps citizens and corporations honest. Trials are a regulatory tool more effective than legislation. As Jefferson famously said, “the jury trial is more important than the right to vote”.
Following the first wave of settlement, I confirmed with my senior partner Walter Umphrey, that we would move forward on the opt out cases towards trial and he agreed. As with any case, we provided the plaintiffs for depositions, developed the medical evidence and prepared the cases for trial. My first trial setting occurred in Jefferson County, Texas before the honorable Gary Sanderson. My client was a lovely woman from east Texas named Deborah Hayes. Deborah had taken the drug for weight loss and developed mild aortic regurgitation as well as moderate mitral valve regurgitation. I hired Dr. Al Brady, a local cardiologist, as our expert witness to explain the workings of the heart to the jury. We also retained Dr. Lemuel Moye’, an epidemiologist at the University of Texas Medical Center as an expert to explain the medical research implicating the drug as a cause of heart valve damage and what was known by experts in the field, including Wyeth.
A week before trial, I received a phone call from a prominent Houston plaintiff’s lawyer who had thousands of Fen-Phen cases. He was a close friend and colleague of Mr. Umphrey and an accomplished trial lawyer in his own right. The conversation went like this:
Houston Lawyer: Jim, we understand that you are about to try the first fen-Phen opt out case in Judge Sanderson’s Court. Is that correct?
Me: Yes, we pick a jury next Monday.
Houston Lawyer: Jim, we’re concerned because if you go down there and fuck it up, it impacts all of us.
Me: I don’t think that I’m going to fuck it up.
Houston Lawyer: We have some options for you. I’m sure Judge Sanderson would consider continuing the case to a later date and we could send a team over to try the case for you.
Me: I’ve prepared the case and feel comfortable trying it on my own.
Houston Lawyer: I can call Walter and discuss the options with him:
Me: Well, let me speak to him first and I’ll call you back.
What I didn’t know at the time was that a room full of other plaintiff’s lawyers with fen-Phen cases were in the Houston conference room of this lawyer listening to our discussion. I made an immediate bee line to Umphrey’s office to discuss the conversation. Our conversation went like this:
Me: Chief, I just got a phone call from a Houston lawyer who wants me to continue the Fen-Phen case I have set next week and allow his team to come over and try it.
Umphrey: Are you ready for trial?
Umphrey: Have you taken all the depositions you need and hired experts?
Umphrey: Call him back and tell him to go fuck himself, he said with a chuckle.
I called the Houston lawyer back and explained that we would move forward on our own without quoting Umphrey to which he replied, “Okey Dokey”.
Walter Umphrey was from the old school of trial lawyers and maybe the original school. He graduated from Baylor Law School which now is named the Sheila and Walter Umphrey Law School in 1965. Since the early 1970’s, Umphrey relied on personal injury trial practice to build his firm and his fortune. He was a pioneer in asbestos cases leveraging his union connections at the local refineries to represent thousands of union workers with asbestos related illnesses.
Umphrey was intimidating both in size and comportment. His primary strength was his disarming presence. On numerous occasions, I watched colleagues succumb to his wishes for no good reason other than being intimidated. He did not have one insecure bone in his body. He expected his lawyers to try cases. Having no fear of the courtroom was essential to success at Provost Umphrey. All lawyers were evaluated by their willingness to take a verdict. If you feared the courtroom, you needed to work elsewhere. To Umphrey’s credit, he was less concerned about the result than he was about your commitment to trying cases. Regardless of his success as a businessman outside of law, Umphrey only identified himself as a trial lawyer. Everything else was secondary to that identity. Anytime he received an unknown phone call, he would refer to himself as a trial lawyer in Beaumont.
By 2004, I had worked for the firm for 16 years. I knew what Umphrey expected and I was prepared to deliver. Despite the lack of confidence from the Houston contingent, knowing Umphrey supported my efforts allowed me to ignore what at a younger age would have been disturbing. Trial is competition and confidence is critical to success. Juries can sense whether you believe in the cause. Your self-belief bleeds over in your presentation.
Wyeth was defended by Arnold and Porter, a huge Washington D.C. firm that represented them nationally and local law firm Germer Gertz whose partner Paul Gertz took the laboring oar. At trial, Wyeth brought in Vinson and Elkins partner Bill Sims from Dallas to lead the trial team, so the courtroom was packed primarily with the defense team.
Trial began the following week. Our jury foreperson was a local schoolteacher. The evidence came in predictably and no real surprises occurred at trial. The jury paid rapt attention to both of our experts as we focused on the Wyeth supported studies whose “loss to follow up” participants were not included in the studies. Including those participants would have greatly impacted the results of the studies and given a clearer picture of the predictable risks posed by the drug.
The trial lasted a week and a half and was attended by many plaintiff’s lawyers curious to see whether the case had legs. We argued the case late on a Wednesday afternoon and I suggested that a fair verdict would be four hundred thousand dollars given my client’s young age and unknown medical future. Wyeth, of course, argued that no award should occur because they had done nothing wrong, despite their complete failure to warn of heart valve damage.
The jury retired to deliberate. They went home that evening without reaching a verdict. The next morning, I opened our local newspaper, The Beaumont Enterprise, and was shocked to see a full-page advertisement from the American Tort Reform Association labeling Beaumont, Texas as a “Judicial Hellhole”. Coincidence, I think not. Unfortunately, tying this advertisement to Wyeth wasn’t something we could do before the jury continued their deliberations.
When I arrived at court that morning, I immediately asked for a brief hearing to discuss the Ad with the court. Judge Sanderson had also seen the Ad and understood how it might impact the jury. I asked him to poll the jury to determine whether any jurors had seen the Ad. Fortunately, all jurors denied seeing the Ad and we decided to let deliberations continue without moving for a mistrial.
During deliberations, I was approached by a Houston lawyer named Mike Leebron. He told me that he was present at the Houston lawyer’s conference room when the phone call was made before trial. He said that he sat through the trial and reported back to the group by email. He thought the case had gone well and promised to send me the reviews, some good and some critical, that he had sent to them. I thanked him and continued to wait for the verdict. A few hours later, the bell rang, and the jury entered the packed courtroom to announce their verdict.
The jury unanimously found for Mrs. Hayes and awarded her $1,400,000.00 in the first opt-out case in the country. All lawyers were ashen for different reasons. I was interviewed in the hallway by the local news media and the case was reported the next morning in the Wall Street Journal. Whew. I returned to the office and went straight to Umphrey’s office to deliver the good news. He called the Houston lawyer and gave him the needle over the remarkable verdict.
After our success in Hayes, I began working up cases for trial in Philadelphia, PA with Kip Petroff. Kip is a legend in Fen-Phen circles given his first and most significant trial in Marshall, Texas during the first wave of cases. He recovered over $20 million and put the litigation on the map. Our first case in Philadelphia was a two-case consolidation tried along with fellow plaintiff’s lawyers Mike Miller and Ed Williamson. Our client Hank Klepper, was an extremely likeable early 40’s auto shop owner from Katy, Texas who was otherwise completely healthy. He had moderate mitral valve regurgitation, but no actual symptoms. Had Hank remained in the settlement, he too, would have only received six thousand dollars. His was the kind of case I thought had a value of fifty thousand dollars. We kept in mind that a reasonable global settlement value was the goal. As I told anyone who would listen, the cases should settle globally for fifty grand a piece. We tried Klepper under the same evidentiary limitations as Hayes disallowing punitive damages, but the Judge required reverse bifurcation meaning that we would try damages before liability. This made securing a large verdict very difficult since the jury had nothing to get angry about.
Ed Williamson, a tall late 60ish Mississippi attorney, was colorful to say the least. In voir dire, he told the jury in his southern drawl, “Ladies and Gentlemen, I too, am from Philadelphia… Philadelphia, Mississippi.” An objectively funny line, it fell flat. The jury remained stone faced. The trial went about as we expected. The jury deliberated the case and did not find in favor of Ed and Mike’s client but did find for Mr. Klepper and awarded him fifty thousand dollars, exactly what I had argued for.
Before beginning the second phase and presentation of liability evidence, the judge mediated the damages verdict to avoid the time and expense of the next phase. Wyeth wanted to pay half the amount and I wasn’t having any of it. I told the Judge that we had been reasonable in our request to the jury, and fifty grand was nothing for Wyeth to pay. To his credit, the judge got it and told me, “sometimes it is important to save face.” Sure enough, the judge convinced them to pay and we were off to our next trial.
Kip and I tried two more consolidations successfully in Philadelphia and were helped significantly by a $200 million verdict generated by Steve Kherkher and John Boundas of Houston powerhouse Williams & Bailey. Ultimately, all of the cases settled and the litigation ended. My last real involvement in Fen-Phen was as Philadelphia local counsel for John O’Quinn who had secured his own enormous Fen-Phen verdicts in Texas with Partners Tom Pirtle and Rick Laminack, two extraordinary trial lawyers. O’Quinn co-counseled with Provost Umphrey in the Texas tobacco case that I too worked on. He was a legendary a trial lawyer. A book should be written about him, though I’m not sure people would believe it. O’Quinn was beset with demons that somehow did not interfere with his success. I recall seeing him in vulgar fashion verbally dismantle young partner Kendall Montgomery in the lobby of the Texarkana Holiday Inn following a mock trial in the tobacco case. Had Montgomery punched him in the face, no one would have objected.
The Takeaway: Believe in yourself. Granted, I was 18 years into my career and had tried numerous cases before Hayes, many to successful conclusions, but no matter how far along you are, confidence still matters and there are always lessons to learn. Preparation and confidence are the key ingredients to winning jury trials. It is so important that you do not let others shape your view of yourself. Sun Tzu once said, “Pretend inferiority and encourage his arrogance”. My law firm should have T-shirts with that motto. Trial practice is a great barometer for success because you have results that gauge your ability. Even in losses, victories in the presentation of evidence or a favorable ruling on a motion to exclude matters. As young lawyers trying cases the partners wouldn’t touch, we often judged our success by how long we kept the jury out, win or lose. So, appreciate your victories, learn from your failures, remain steadfast and believe in yourself.
Sonnier v. Pittsburgh Corning and PPG Industries (2000)
I started at Provost and Umphrey in Beaumont, Texas in July of 1988. Asbestos litigation was a dominant practice area in the heavily industrialized oil and gas refining industry of Southeast Texas where asbestos insulation had been used in literally every refinery and chemical plant for decades. As a primer, I read Outrageous Misconduct by Paul Brodeur to understand the history. Ironically, the book was dedicated to my father’s former law partner, Ward Stephenson who tried and won the seminal asbestos case Borel v. Fibreboard. Throughout my years at Provost Umphrey, asbestos cases were always a part of my practice and a major source of income for the firm. We had a co-counsel relationship with Ness Motley of Charleston, South Carolina that essentially divided the trial responsibilities between our firms giving them the liability proof and us the causation and medical proof responsibilities.
By the late nineties, many of the asbestos pipe insulation companies had sought Bankruptcy protection except Pittsburgh Corning, PPG Industries and a few others. Pittsburgh Corning (PC) had manufactured a particularly nasty asbestos pipe insulation called Unibestos that contained high quantities of mesothelioma causing amosite asbestos. PPG Industries manufactured a pipe insulation called Pyrocal that was never really a target of lawsuits due to its scant use. PPG also had an ownership stake in PC so getting them on the hook had collateral advantages especially if a bankruptcy occurred.
Sonnier, et. al was a seven-family consolidation of plaintiffs pending before Judge James Mehaffy in Jefferson County, Texas district court. None of the plaintiffs had mesothelioma. They all had varying degrees of asbestosis. One of the clients lived to be 100 years old. Given the makeup of cases, Pittsburgh Corning felt confident they could hold the verdicts down which would influence future settlement negotiations on these and other cases. PC was represented by Bill Harvard from Georgia, an incredible attorney who usually began his side of voir dire by telling the jury, “I’m like Paul Harvey, now you’re going to hear the rest of the story.”
The Ness Motley team was comprised of David Lyle and Ken Wilson, both experienced and excellent trial lawyers and the outstanding paralegal Lane Andrae. If you ever wonder about the value of a great paralegal, ask any NM lawyer about the contribution of Lane to the effort. She knew more about the cases than any of us. I tried our part of the case for the firm.
Our testifying expert pulmonologist was Dr. Gary Friedman. Dr. Friedman was a pioneer in the diagnosis and treatment of asbestos related pulmonary illnesses in Southeast Texas. He was from Beaumont but practiced in nearby Houston. I directed the plaintiffs and Dr. Friedman developing the medical case and handled cross examination of the Defendant’s pulmonology expert. The liability case revolved around some rather ancient depositions Ron Motley and others had taken years ago of PC executives and thought leaders in the medical community including Gerrit Schepers.
In reviewing their expert’s independent medical exams prior to trial, we noticed many of the pulmonary function tests described the height of the plaintiffs above what the other medical records disclosed. Pulmonary Function tests require accurate height measurements in order to assess the volume of the lungs. Because of this, doctors ordinarily measured patients without their shoes on to get an accurate measurement. Many of the experts were not deposed before trial intentionally. We knew what they were going to say from their reports and sometimes with luck, you may expose an area in cross examination they failed to anticipate.
On cross-examination of PC’s pulmonologist, I pointed out that my clients were taller in his reports than in their medical records. I pressed him and obtained his concession that height can affect the calculation of lung volume making their breathing capacity appear less impacted. Surely, he didn’t intend that. There must be an explanation. Sure enough, he testified that his practice varied from that of other doctors. Instead of taking off their shoes, his nurses measured their shoe heels and subtracted the amount. Unfortunately, they failed to include that math in the test results. The jury just stared at him.
I argued final rebuttal for the plaintiffs, pointing out the incredibility of measuring the client’s heels and pointed out that although my clients were older, the golden years should be golden not winded. We awaited the verdict. The jury returned a unanimous verdict against both defendants for the plaintiffs in the amount of 13 million dollars. The verdict was far beyond what PC anticipated. As a bonus, the jury also found PPG liable for the first time in the history of asbestos litigation. Unfortunately, PC would file bankruptcy within 30 days of the verdict which would delay our client’s payments for almost two decades. Following trial, Judge Mehaffy sent the following note to my boss Walter Umphrey:
The Takeaway: Look for betrayal of trust by the Defendant. Something that appears innocuous may be a window into the soul of the defendant. If they lie or cheat, point it out and tie the conduct to your overall case theme. It is up to you to inform and persuade. Take the craft seriously. Never just mail it in or act like something doesn’t matter. Everything matters. Think about it, the measurement of a plaintiff’s height was likely exaggerated on countless other occasions and never revealed. Here, we called him on it and his response destroyed his and PC’s credibility. Jurors want the truth and straying from it can bury a witness and ruin a case.
Hormone Replacement Therapy (HRT) (2004-2010)
Following our success in the Fen-Phen cases, we were contacted by Attorney Mike Williams of Portland, OR and asked to co-counsel HRT cases against our old foe Wyeth involving their drug Prempro. Mike is a mountain of a man with a white beard and affable manner. He graduated from Cal Berkeley and Harvard Law School. He attended Woodstock and was the victim of a near fatal gunshot to the belly as a young man. In the universe of plaintiff’s pharma lawyers, Mike was considered a preeminent mind and trial lawyer. He brought instant credibility to any case. I knew there was much to be learned from Mike.
Prempro was a combination of estrogen and medroxyprogesterone acetate (MPA) used by post-menopausal women to treat symptoms of menopause. By this time, all drug cases seemed to find their way to a Multi-District Litigation (MDL) court due to the volume of cases nationwide. The Judicial Panel on Multi-District Litigation (JPML) appoints one Federal District Judge to oversee the discovery of the cases and to try bellwether cases in an effort to push a global resolution. That Judge appoints a Plaintiff’s Management Committee (PMC) to coordinate and conduct discovery and a liaison counsel to handle communications between the PMC and the many lawyers who suddenly find their cases transferred to the MDL. In order to be on the PMC, you must submit your resume’ to the court and be approved by the Judge. I was approved as a member of the PMC for MDL 1507 by Judge Billy Roy Wilson in Little Rock, AR where the cases would be litigated.
Lead counsel was Zoe Littlepage of Houston, Texas who along with her partner Rainey Booth joined Mike Williams as leaders of what would be a decade long litigation. Zoe was born and raised in Barbados and graduated from Rice University before attending law school. She is an incredible trial lawyer with unparalleled energy and focus on the details. Her skill at cross-examination is the best I’ve ever seen. She dismantled witnesses that the rest of us could barely touch. It was as much art as skill. To call her type A is an understatement. She cannot leave her house with a pillow out of place. What is most endearing is that she knows herself and what you see is what you get.
Rainey, to his credit, was the steady hand in the sea of tumult that surrounded trial preparation. His Hollywood looks and mastery of the details made him the perfect complement to Zoe at trial. Filling out their team was paralegal April Cowgill, who somehow managed Zoe and Rainey while accomplishing more tasks in less time than any paralegal I’ve ever known. Now a breast cancer survivor herself, she is simply a person who makes all around her feel better about themselves.
Other notable members of the PMC included Rob Jenner, Tobi Millrood, Rich Lewis, Jim Szaller, John Restaino, Ralph Cloar, Les Weisbrod, Bill Curtis, Leslie O’Leary, Dianne Fenner and the indominatable Erik Walker. Many others too numerous to name contributed. Wyeth was defended by Williams and Connolly of Washington, D.C., and co-defendant Upjohn was defended by Kaye Scholer of New York, NY. Two large Little Rock firms also defended and acted as local counsel for the drug companies.
Wyeth’s first hormone drug was called Premarin. It consisted of estrogen only. It was developed in the mid-1940’s, about the same time JFK’s sister was suffering a lobotomy. Its FDA approval was grandfathered in the early 1960’s. By the mid-1970’s, Premarin was clearly causing ovarian cancer and the company voluntarily warned about that risk and suggested that a progestin be prescribed in combination for those patients with an intact uterus. The most popular progestin was a drug manufactured by Upjohn called Provera. Provera was generically known as medroxyprogesterone acetate (MPA). So, from the mid-1970’s to the 1990’s, obstetrician-gynecologists prescribed the two drugs in combination for post-menopausal women suffering symptoms including hot flashes, night sweats, and irritability.
Around 1995, the National Institute of Health (NIH), started a nationwide study called the Women’s Health Initiative (WHI). The WHI analyzed exposures and conditions in the female population and one of the issues studied was post-menopausal hormone usage and breast cancer. Wyeth had been slow to study this issue and convinced the FDA to allow them to contribute Prempro (the combination of Premarin and Provera) for the study as fulfillment of the Phase 4 study FDA had been requesting from the company.
Studies which follow a cohort of patients who are exposed to a drug have an alarm system in place in case too many adverse events are seen. Breast cancer was the concern with Prempro and sure enough, 5 years into the study, the alarm went off alerting investigators that the cohort had exceeded the acceptable number of breast cancers expected to occur despite the drug. In the subgroup analysis of women who were exposed to Prempro over 10 years, the numbers were truly alarming, in some cases hitting a tripling of the risk. As a result, litigation ensued as women with breast cancer came forward seeking justice.
At the litigation’s core was a failure to adequately study the combination drug and warn the patients of the risk of breast cancer. The first couple of years in the litigation were spent taking depositions, reviewing literally millions of industry documents, and preparing for trial. I was part of the litigation team in the MDL and assisted in depositions as well as individual bellwether case development. Bellwether trials occur routinely in multi-district litigation to give the judge and parties an idea about whether juries will embrace the liability and if so, the value of the cases. Bellwether trials often last weeks if not months and require the participation of several trial lawyers and large staffs.
In 2006, I decided to leave Provost & Umphrey for several reasons. Hurricane Rita devastated Beaumont, Texas in October of 2005 and I was convinced it would happen again. It did, as hurricane’s Ike and Harvey lay testament. Our children, Macy and Trip were just starting school and if ever there was a time to move, now was it.
I agreed to continue to work on Provost Umphrey’s bellwether cases that were approaching trial. We moved to Austin and bought a home in the Lake Travis school district. A couple of months after my relocation, I was contacted by California attorneys Don Edgar and Jeremy Fietz, who had about 200 Prempro cases filed in state court in Philadelphia, PA. Don and Jeremy were familiar with my work in Philly in the Fen-Phen litigation and asked if I would be interested in co-counseling these HRT cases. Given the enormity of the project, I solicited help from former PU partner Brent Coon and we worked out an “of counsel” arrangement that allowed me to accept the cases with Brent’s financing of the project for a cut of the fees.
I established an office in Bee Cave, TX and continued to pursue the litigation. Our children enrolled at Lake Point Elementary and Kam and I got involved in a non-profit theatre academy for kids called TexArts. There, we would meet the incomparable owners Todd and Robin. My cousin Ann Oliverio lived in the nearby community of Lakeway and introduced us to much of the community.
In August of 2006, the Saturday before I was scheduled to drive to Little Rock for the first HRT bellwether trial, I took my five-year-old son Trip, down to the creek behind our house in Austin to clear an area for him to play. I also wanted to educate him on what could be dangerous including a pool of water that harbored water moccasins. As I was raking an area of underbrush near the creek, I was attacked by a swarm of ground wasps. I had no idea that there were wasps that built their nests on the ground, but now I was becoming intimately aware. As they began to sting me, I yelled for Trip to run back to the house. He was only steps away from me and he began running as fast as he could. The house was about a hundred yards away uphill through a grove of mesquite and cedar trees. As I got closer to him, the wasps began stinging him as well and things were not looking good. When I reached the house, I immediately jumped in the pool to hopefully drown the insects. My wife Kam was visiting with dear friends Linda and Larry Sartin and they began attending to Trip.
They called the paramedics given my known allergy to bee stings and help was on the way. The paramedics gave me a regimen of medication and observed me hoping I didn’t go into shock. I had over a hundred stings and Trip had many as well, most on his head. I was primarily stung on my arms and legs. Traveling to Little Rock on Sunday was out, so I would delay my trip for at least a day. I decided to fly rather than drive and scheduled a flight for Monday. Upon arrival in Little Rock, I settled into an apartment we rented for the trial and began preparing Voir Dire. During my first week in Little Rock, I suffered a relapse and recurrence of symptoms causing significant swelling on my arms, legs and chest. I went to the emergency room at St. Vincent’s where I was given a shot and oral medications that boosted my energy and reduced the swelling. The oral medication included hormones ironically. I kept this to myself so as not to alarm my colleagues.
The first bellwether case involved Little Rock resident Linda Reeves. Mrs. Reeves was a breast cancer survivor who had taken Prempro for years and had no idea that the drug could cause breast cancer. At trial, I conducted voir dire and case specific development which included direct examination of her prescribing physician.
The trial team included Zoe Littlepage, Rainey Booth, Mike Williams and me. Zoe focused on liability and Rainey and Mike focused on the science and medical proof. Jury selection went well at least according to the observers that approached me afterwards. We proceeded with the trial. My responsibilities ended after the examination of the prescribing physician and I returned to Austin. Unfortunately, the jury returned with a defense verdict on behalf of Wyeth.
Following my return to Austin, I began working towards trial in Philadelphia since Little Rock wasn’t working out so well. By happenstance, in the spring of 2007, I had the first trial setting of a Prempro case in the Philadelphia Court of Common Pleas (PCCP). My client Merle Simon had taken Premarin and Provera, so for the first time, both Wyeth and Upjohn would be at trial together as defendants. I was assisted at trial by Brian Ketterer who manned the Philadelphia office of Brent Coon and Associates.
Brian worked with me at Provost Umphrey before moving to BCA, as did Steve Faries. Any success I’ve had in drug litigation is every bit due to the fantastic work of these two gentlemen. I simply can’t over-emphasize the value of case management and briefing on their part. Their work allowed us to avoid summary judgment and provide a defense against these behemoth firms while the tall building lawyers assured their clients that they would annihilate us. Certain people enter your life for good reasons you cannot anticipate. Brian and Steve made a difference.
Wyeth, once again, was defended by Williams and Connolly, this time by partner Heidi Hubbard and Philadelphia Mega Firm Dechert locally. Upjohn was defended by Sidley Austin partner Debra Pole, an energetic defense lawyer of great repute, as well as Kaye Scholer and Hunton and Williams. The trial took place in one of those cavernous courtrooms in Philadelphia City Hall before Judge Alejandro Quinones (Now a federal Judge ED PA). Merle Simon was in her sixties and suffered invasive hormone positive breast cancer requiring surgery. She and her husband Steven lived in New Jersey where they raised two lovely daughters. They were simply excellent clients. I tried the case start to finish for the Simons.
In order to move forward against a manufacturer of drugs, the law in Philadelphia required a showing that the prescribing physician would not have prescribed the drug in light of the newly discovered harm. This opinion by Judge Ackerman set a high burden since most physicians would rarely reverse a prescribing decision. At deposition, Merle’s prescriber testified that the prescribing decision was a cooperative decision between the physician and patient, and if the patient did not want to take the risk, the patient could refuse and the doctor would honor that request. These facts allowed the case to proceed past summary judgment and later were the reason the case was affirmed on appeal.
In opening statement, I reminded the jury of the history of William Penn, whose statue adorns the pinnacle of city hall, in England’s Bushell’s case which established the independence of the jury verdict. I also mentioned Andrew Hamilton and the role of the “Philadelphia Lawyer” in establishing justice through jury trials in colonial times. All of this was an effort to establish the solemnity a citizen’s case deserved against a powerful defendant.
In opening statement, I misspoke when discussing amenorrhea and Debra Pole pounced on me in her opening. Throughout the trial, she made a big deal about the mistake which I owned up to during the case. Never be afraid to own up to your mistakes. Things happen and juries get it. What jurors don’t like is the lawyer who won’t admit a mistake or fallacy. This is true with weaknesses in your evidence. Admit the weaknesses first. Don’t let the other side beat you over the head with it first. Never sacrifice the good for the perfect. Trial is war. Battles over evidence will be won and lost. Keep focused on the ultimate goal. From the outset, let the jury know that they are expected to go back and forth on the evidence, but the credible evidence will favor the plaintiff.
Throughout the development of the HRT litigation, I repeatedly took the position that the easier defendant to hit was Upjohn due to their complete lack of warning regarding breast cancer. Wyeth had, at least, included a minimal statement about the breast cancer epidemiology in their label albeit not the whole story. The case against Wyeth was nuanced by their complicated involvement in women’s health from sponsoring numerous American College of Obstetrician Gynecologist (ACOG) Meetings, ghostwriting articles claiming Prempro had unproven benefits for the heart and mind, and their “dismiss and distract” strategy aimed at refuting negative articles suggesting a breast cancer connection enabled by PR specialists Burson-Marsteller.
Upjohn, on the other hand, just did nothing, which to me, made them the target. The one mention of breast cancer in the Upjohn Label referred to a beagle dog study that found no compelling relationship between the Provera and breast cancer. As I told the jury, we represent women, not canines. The court refused to admit much of the particularly aggravating evidence against Wyeth including the ghostwriting and refused to allow punitive damages. While disappointing, we still had a jury in the box and a verdict on the way. Steve Urbanczyk, a Williams Connolly partner heavily involved in the MDL, sat in the gallery watching the trial and taking notes.
During the trial, the court received a note from a juror directed at me. Apparently, she did not appreciate the fact that I spoke directly to her much of the trial. I am from the school that teaches, “if you don’t look them in the eyes when you deliver your comments, they won’t believe you”. Clearly, there is an exception to every rule, and this was proof. From that point forward, I avoided direct eye contact with her as best I could.
One of the major battles won during Simon concerned the number of diagnosed cases in the large population of patients. Wyeth argued that the number of women with breast cancer was not all that significant, a truly reckless and callous position. Our epidemiologist Don Austin was being cross-examined about the “small” number of breast cancer cases in the exposed population. Without prompting or discussion, Dr. Austin responded on cross with an anecdote to illustrate the significance of small numbers in epidemiology. In April of 2007, 32 students at Virginia Tech were gunned down. Dr. Austin responded, “You know, there are probably 20 Thousand students at Virginia Tech and 32 deaths would be far less than 1%, a “small” number from your point of view. But that number is extremely significant to the ones who lost their lives, to their families and indeed the community as a whole”. The courtroom was deadly quiet and the Wyeth lawyer never recovered from that comment.
Throughout the litigation, Wyeth’s favorite refrain was, “no one knows the cause of breast cancer, not even the experts”. Carrying that banner was a particularly strident Wyeth expert from the University of Pennsylvania named Chodosh. Contrary to his opinion in the courtroom that hormones don’t cause cancer was an admission in one of his patent filings that hormones did in fact cause ovarian cancer. We pointed that out in his cross-examination and successfully encouraged the jurors to examine what the experts say outside of the courtroom versus inside the courtroom.
Ultimately, the jury found in favor of Wyeth but against Upjohn and awarded Mrs. Simon $1.5 million. It was an amazing victory given that this was the first case where Upjohn was a defendant at trial. Wyeth was pleased with their result but had to be concerned that the jury agreed with the plaintiff on the issue of specific cause.
Upjohn appealed Simon first to the intermediate court of appeals where they received no relief and to the Pennsylvania High Court where we also won. Importantly, the appeals courts embraced our position on the learned intermediary issue ruling that a prescribing physician’s acknowledgement that risk, if known, should be discussed with the patient and if the patient rejects the drug due to the risk, her wishes would be accepted. Therefore, the onus on warning lays with the manufacturer to properly warn the doctor so that a collaborative decision can be made.
Often during Simon I thought of Teddy Roosevelt’s quote,
“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”
If there were one quote for a trial lawyer to live by, this is it. Simon was a watershed moment for me. Dusting yourself off, getting back on and riding that bucking horse is an absolute necessity for a trial lawyer. Wins and losses will occur.
In Little Rock, the fight had not eased a bit. Wyeth was now taking specific characteristics of the plaintiff’s use of the product and arguing that, for instance, short term use (less than five years) would not support a cause-and-effect relationship. The court’s ruling on that motion alone would have a devastating impact on the inventories of plaintiffs and any potential settlement. This, among other issues, were the subject of intense briefing led by Erik Walker, but the question of future bellwethers still lingered.
A few words about Erik. He is brilliant, resilient and without peer. Erik is complex and does not suffer fools. His meticulous expression grammatically coupled with his brilliant insight and analysis was just what Judge Wilson appreciated. Wilson, a rank intellect as well, challenged the lawyers with anecdotes from Hank Williams to the rule in Shelley’s case. Wilson’s respect for Erik worked to our overall benefit. Without Erik, I doubt that the litigation would have succeeded.
In the fall of 2007, I received a call from Zoe regarding MDL bellwether trial settings. She was set to try a three-case state court consolidation in Reno, Nevada during the same period that Judge Wilson had set the third MDL bellwether trial. We were 0 and 2 in the MDL and needed a win. The MDL case involved Little Rock native Donna Scroggin who underwent a double-mastectomy following years of Premarin and Provera use. Ms. Scroggin’s mother was also a breast cancer survivor but not a hormone user. No doubt the primary defense would be the hereditary connection. The good news was that Donna’s BRCA genetic test came back negative for the breast cancer gene.
Zoe asked me if I would take the lead on the Scroggin case. Although Zoe did not say it directly, chances were high I would be “taking one for the team”. I immediately accepted her offer and went to work.
Donna Scroggin was one of those clients who was uncomfortable speaking publicly and had difficulty expressing her emotions. For instance, during trial preparation, we did a mock direct examination. It went like this:
ME: Ms. Scroggin, will you please describe for the jury how you felt when the doctor gave you the breast cancer diagnosis.
Donna: I felt bad.
ME: Can you describe your emotions?
Donna: I was sad.
ME: How did you cope with what you were about to go through?
Donna: I didn’t really do anything, I just had the treatment.
One of the great challenges for trial lawyers is preparing a noncommunicative client to effectively communicate her feelings to the jury. With Donna, it was especially challenging. Explaining the mental impact of a cancer diagnosis gives the jury a clearer picture and allows them a fair assessment to rely upon for awarding damages. I asked Donna to mentally transport herself back in time and describe that cold examination room with bright lights where she sat quietly in her hospital gown as the doctor gravely discussed her diagnosis. I asked her to describe how the tears trickled down her cheeks and began to flow as she coughed and struggled to compose herself. Her first words were, “Am I going to die”. His response was, “Let’s discuss the treatment”…. And so on.
Painting the picture through the client’s images and pictures drawn from their memory is crucial to establishing the emotional congruence that gives the jury an opportunity to share the grief, despair and loneliness that goes with the diagnosis. The same is true for the fear, anxiety and uncertainty that goes with the treatment. It’s not enough to just say it turned my world upside down. The client must state how it did so. For instance, Donna normally visited her elderly mother every day, but now that was put on hold. How many more days, months or years did her mom have, or Donna have for that matter? She worried about this. She normally was in charge of a local club, but now someone else would have to take over. Historically, she did not deal well with pain. Now she had to endure having both of breasts amputated. Painting those pictures is not pandering for sympathy, it is an expression of truth.
Trial took place in the late winter of 2008. Since it was an MDL trial, the committee provided April Cowgill to provide support to Terry Nash and Erik Walker to handle all motion related legal issues. Steve Faries handled the case management and I tried the case from Voir Dire to final argument on my own. I handled every examination and argument during the five-week trial.
Wyeth was defended by Williams Connolly partners Lane Heard and Steve Urbanczyk, Arnold and Porter lawyer Pam Yates, and locally by Lyn Pruitt. Upjohn called on Baltimore lawyer Charlie Goodell and local lawyer Betsy Murray. Behind them were a cadre of associates, paralegals and support staff. Many federal judges listen more carefully to the defense side of motions because of the age-old bias that assumes that the smartest lawyers go to the large defense firms. A perception but not the truth. Granted, Lane Heard was a Harvard graduate and Urbanczyk from Stanford, but neither could match Erik Walker and thank goodness Judge Wilson listened to Erik.
Counseling me during voir dire was rock solid, Southern Baptist, pillar of the community, Little Rock native Ralph Cloar. Ralph’s wife was a breast cancer survivor and he knew the judge and community very well. We didn’t utilize a jury consultant or overthink which prospective jurors would be best. One prospective juror’s sister suffered breast cancer but never took hormones. We were concerned that she might buy into the argument that “no one knows the cause of breast cancer” given her sister’s diagnosis. So, we struck her and instead took a lumber company safety foreman who answered the jury questionnaire section asking about the three person’s you admire most by putting 1. My dad 2. Jesus Christ and 3. George Bush. The three people he admired least were 1. Hillary Clinton 2. Bill Clinton and 3. Richard Simmons. He was our jury foreman. The judge seated twelve jurors and two alternates and off we went.
Trial proceeded as predicted. It was bifurcated between actual damages and punitive damages, so we would not be able to present the really damaging gross negligence evidence unless we won the first phase. The plaintiff testified as did our numerous expert witnesses. Much of the scientific evidence was like Simon. Our FDA expert Suzanne Parisian explained the role of the FDA telling the jurors that the FDA doesn’t actually test drugs. The manufacturers do the testing and send the results to the FDA which reviews them for accuracy. So, the fox is guarding the hen house. She also explained that FDA has on only one occasion involuntarily withdrawn a drug from the market. Clearly, the drug companies control much of what happens and despite the best efforts of the regulators, bad drugs make it to the market.
Wyeth relied heavily on its Johns Hopkins trained Genetics expert who presented a family tree suggesting that this breast cancer, in fact, was caused by genetics and not the drug. I was able to pick apart the tree and show that the only hereditary link Donna had was her mother and yet Donna did not possess the BRCA gene which would cement the connection. The preponderance of the evidence, given Donna’s long-term usage pointed to the drug not genetics, I would later argue.
Throughout the trial, Judge Wilson referred to me, outside of the presence of the jury, as Reverend Morris and seemed to take sport with my delivery. The Wyeth lawyers were tolerable and Goodell was actually likeable. Urbanczyk backhandedly complemented me one day saying, “You’ve improved since Simon.” One of the more colorful moments occurred at sidebar one day when Judge Wilson complemented my grey pin striped suit by saying, “I doubt I’ll ever buy another suit, but if I do, I want one like that.” Lane Heard, an extremely dapper dresser, was green with envy.
At the conclusion of the plaintiff’s evidence, I approached Goodell and took him aside. I told him that my client was a very reasonable person and she would be willing to negotiate a settlement. After all, the judge had denied their motion for a directed verdict against us which meant the case would get to the jury eventually. Charlie was candid and said that he had been instructed to offer nothing.
Trial ended and the jury retired to deliberate. We all expected that the process would take a while and the court promised to call us when the jury returned. Late that day, the bell rang and the jury had reached a verdict. April was walking up the courthouse stairs next to the defense attorneys who all seemed to be rather excited. She asked one of the lawyers why they were so cheerful, and he responded, “we’ve got it in the bag”.
Kam came to Little Rock to attend final argument and be there as moral support for the verdict. Honestly, we had no idea how things would go. Juries are never predictable and our trial track record in Little Rock was abysmal. Bifurcation always makes getting a verdict more difficult. Many jurors want more than a preponderance of the evidence to find against a defendant. Evidence of conscious indifference, only allowed in the punitive phase, could assist some wary jurors during the actual damage phase.We reached the courtroom and took our seats as the jury filed into the box. The Foreman passed the verdict to the court’s clerk, who read the verdict to the packed courtroom. The unanimous Jury finds in favor of the plaintiff Donna Scroggin and against both defendants and awards 2.7 million dollars. I just dropped my head as Steve patted me on the back. I reached over and held Donna’s hand for a moment as the Judge addressed the courtroom and polled the jury. They all agreed that the verdict was theirs and the court asked them to remain seated.
The Judge then looked to me and said, “Mr. Morris, are you prepared to begin the punitive damage evidence.” Caught somewhat aback, and still reeling from the shock of the win, I murmured, “Yes we are your honor”. Predictably, the entire defense side of the courtroom objected in unison as they quickly began to realize the train that had just slammed into their cars. In response, the court called the lawyers to sidebar and we began discussing the future. The defense needed time to digest the jury verdict and assemble their evidence and witnesses and yada, yada, yada. I, on the other hand was ready to proceed. The jury needed to see the good evidence that the public had not yet seen.
Wilson was a trial lawyer before becoming a judge. He embraced the jury trial as a necessary part of reaching the truth. He refused to engage in settlement discussions throughout the litigation and simply let the cards fall where they did. He gave us two days to prepare for the next phase and instructed the jury to return at that time.
Proceeding to the punitive phase was complicated. Much of the punitive damage evidence came from the Wyeth marketing and medical affairs departments. The Wyeth evidence included ghostwritten articles dismissing the breast cancer risk and distracting the reader to believe that Prempro was beneficial for the heart and mind even though the FDA had never approved those alleged benefits. Since, it would be illegal for the manufacturer itself to make those unfounded claims, Wyeth worked through ACOG and other thought leaders to spread the untruthful messages. Wyeth’s campaign of disinformation found its way into direct-to-consumer ads and genuinely persuaded medical doctors to underestimate the risks and overestimate the benefits, a truly terrible thing for patients.
Although the documentary evidence should have come in on its own merit, Wilson, like many judges, required a sponsoring witness. Most of this evidence included things the FDA should have known but didn’t. As such, we used Dr. Parisian, our FDA expert, to sponsor many of the exhibits. The jury listened carefully, sometimes with their mouths wide open, as the truth of pharmaceutical marketing in America came to light. We presented the evidence over a couple of days and then made our final arguments.
The U.S. Supreme Court has on numerous occasions been confronted with the constitutionality of punitive damages. Most trial lawyers are familiar with the high court’s BMW decision that found a verdict with a ratio of 1:8 between actual and punitive damages to be acceptable. As such, I argued for a 1:10 ratio assuming the jury might cut it in half. Wyeth and Upjohn both denied any punitive award was warranted but from their facial expressions, it didn’t look to me like the jury was buying it. The jury retired to deliberate and returned after several hours. They, once again, passed their verdict to the court’s clerk who read the following: “The jury finds in favor of the Plaintiff on the issue of punitive damages and assesses $19,366,000.00 against Wyeth and $7,760,000.00 against Upjohn.” After all was said and done, the jury assessed exactly the ratio I suggested.
The Defendants were stunned. Walking out of the courthouse, I saw one of the defense lawyers who had given up smoking years ago, sucking down a Marlboro in complete disbelief of what had just happened.
As with any significant verdict, both Wyeth and Upjohn moved for a new trial and to set aside portions of the verdict, primarily the punitive damages. Roughly thirty days later, we received the court’s decisions. Judge Wilson denied their motions for new trial but entered a judgment notwithstanding the verdict (jnov) that set aside our entire punitive damages award, all 27 million dollars. Gone, poof, goodbye. In his lengthy opinion, he stated that he was mistaken in admitting all the damning documents testified to by Dr. Parisian who he should not have let testify. Fortunately, he upheld the actual damage award which the defendants appealed to the 8th circuit. We appealed his jnov of the punitive damages and Erik went to work on the appeal.
The 8th Circuit in a published opinion affirmed our actual damage verdict. They reversed his decision on the punitive damages but rather than reinstating the 27 million, remanded that portion for a new trial. The defendants appealed the 8th Circuit’s decision to the U.S. Supreme Court. The high court refused to upset the 8th Circuit’s decision and the case resolved in our favor.
My trial calendar for 2009 included 5 trials in the Philadelphia Court of Common Pleas. Given that each case would take at least a month to try and Wyeth seemed hell bent to keep up the fight, I needed to consider my situation. I was way too deep to back off the litigation, but I didn’t want to spend a year away from my family. Our daughter Macy was 10 and our son Trip was 8 and being around was really important for all of us. What if we moved to Philadelphia temporarily?
I explained the situation to Kam in December of 2008 and she agreed that moving made the most sense. We spoke to friends who recommended the Philadelphia Main Line as a great place for schools and quality of life and off we went. We moved close to Narberth and put our children in school at Belmont Hills Elementary. I put my office across from City Hall with friend and colleague Diane Fenner, who lived in nearby Bryn Mawr. We learned how to pronounce Conshohocken and Schuylkill.
Moving and living among the community enhanced my awareness at trial. I learned how to pronounce local places and understood a little bit of the personalities of the different neighborhoods. Don’t get me wrong, it’s nothing like being from there, but the awareness and understanding of things local helped. Being able to sleep at home rather than in a hotel helped. Putting Trip in the Hilltop Little League and playing golf at Bala are experiences I will never forget. We made friends in Philadelphia that are part of the fabric of our lives.
Over the next 8 months, I tried 2 more HRT trials in Philadelphia and settled one on the courthouse steps. Wyeth brought in Beth Wilkinson as its lead trial lawyer for two of the cases. Beth is married to David Gregory, formerly of Meet the Press and she is formidable. Her manner is convincing and she is similar to Zoe in terms of focus. In fact, my final HRT trial in February of 2010 was a 2-case consolidation I tried with Zoe and Rainey in Judge Jimmy Lynn’s court. Beth tried that case for Wyeth and won. Our client was a wonderful lady named Sharon Buxton who, despite our loss, is still my friend on Facebook. It was shortly after that loss that I settled our HRT inventory and returned our family to Texas.
Scroggin ended up being the only plaintiff’s verdict in the Federal MDL Court. The cases settled globally in 2010 after numerous huge state court verdicts recorded by Zoe, Tobi and others. Pfizer bought Wyeth and Prempro remains on the market. I was lucky to be a part of the litigation and I sincerely doubt that any legal experience will ever match the Prempro litigation.
THE TAKEAWAY: Never Quit. Believe in yourself. Persevere. Take chances.
Ophelia Mouton v. Howard’s Food Market (1987)
My first solo civil trial was a slip and fall case on behalf of Ophelia Mouton against Howard’s Food Market. My boss gave me the file the Friday before jury selection on Monday. The file had little information other than some chiropractic bills and a denial of liability letter by Howard’s. There was also a smattering of discovery requests that had either been objected to or left blank. The defense lawyer was several years ahead of me and knew what he was doing.
Ophelia showed up for court in her “Sunday best” with an inordinate amount of makeup. Her key witness was Kizzie who lived at Ophelia’s house along with several other barely legal girls. The case was tried in Jefferson County Court at Law #1, a court of limited jurisdiction that utilized a six-person jury. We picked the jury, gave opening statements and began the presentation of our case. Ophelia took the stand and explained how she was walking through the produce section with Kizzie on a routine shopping trip and slipped on a mess the good folks at Howard’s had failed to clean up. This occurred in the mid-1980’s so no one had a cell phone to snap a photo of the condition of the premises. Howard’s denied responsibility claiming there was no notice of the condition and denied failing to remedy the premise defect.
I tagged all the bases in direct examination of Ophelia by describing her activities that day, the fall, her report of the fall and the pain and suffering she endured following the incident. Ophelia was cross-examined about her deposition testimony. At deposition, she testified to never having any previous lawsuits. On cross, Ophelia confirmed that she had not previously sued anyone and was adamant about the fact. The nice defense attorney then approached Ophelia with a stack of papers in his hand that I had not seen. Of course, I objected, and he responded by arguing that these were being used for impeachment purposes. At sidebar, he argued that I had equal access to the documents had I taken the time to order copies of his subpoenaed documents. I’m thinking, how could I do that between Friday and Monday. The Judge overruled my objection and allowed defense counsel to proceed. He showed Ophelia not one but 6 previous lawsuits she had filed, 5 of which were slip and falls. The jury was stone-faced. I did my best not to react.
Despite the impeachment, Kizzie backed up Ophelia’s story concerning the produce aisle defects and how Ophelia continues to suffer with pain as a result of the incident. In final argument, I argued that her prior lawsuits had nothing to do with this incident and that Kizzie was a credible eyewitness to the fall. I then argued for a modest amount of 15 thousand dollars and took my seat. Ophelia grabbed my arm as I sat down and in earshot of the jury said, “your boss told me this case was worth 50 thousand dollars.” I whispered back to her, “I don’t think the amount is going to be the problem”. As anticipated, the jury found in favor of Howard’s and I notched my first civil loss.
Busy personal injury practices are full of their share of Ophelia’s and while this case played out in less than stellar fashion, many of the problems were avoidable. Small PI cases with no surgery, slim medical visits and tough liability are historically the training ground for young lawyers. While the public might be offended that Ophelia got her day in court, there are many Ophelia’s that don’t, thanks to summary judgment, or simply no lawyer willing to take the case. The benefit of allowing Ophelia her day in court is the prospect that while the testimony seemed crystal clear, given slightly different facts, the case may have gone her way.
For instance, imagine that the chiropractor actually asked for a CAT scan because Ophelia claimed her head hit the ground. Imagine that the CAT scan showed a Traumatic Brain Injury (TBI) that affected her memory. Imagine that this was unknown at the time of her deposition and she failed to remember the earlier incidents just as she may have for gotten previous husbands, residences and occupations. All of the sudden, the impeachment looks cruel.
Imagine that Ophelia showed up to court wearing normal clothes and no makeup. Imagine that Kizzie was a homeless child Ophelia had befriended and taken in when no one else would. Imagine that Howard’s had a habit of not documenting routine cleaning and had 15 prior reports in just that year. All of the sudden, the verdict could go Ophelia’s way and in a big fashion.
THE TAKEAWAY: First, I learned that facts are stubborn things. The discovery in our file did not include any information that would rebut her lack of memory at deposition. Neither Ophelia nor her witness had any proof in terms of physical evidence to support the claim. The medical records in Ophelia’s case consisted of a few chiropractic adjustments, but no diagnostic tests showing anything. Finally, neither Ophelia nor Kizzie were particularly believable.
THE TAKEAWAY: The case allowed me to stand on my feet and pick a jury. Nothing is more valuable than just doing it. You can read books and attend seminars and watch other people examine a panel, but nothing is more instructive than just doing it on your own. Jurors want to be fair. They lean towards the truth and take their job seriously. They are not stupid. They know that young lawyers often get the worst cases and oftentimes they empathize with your plight. While some may walk away griping about how you wasted their time, most walk away satisfied that they performed a public service that is a privilege in a free society.
Additionally, you must know what the other side has in their file. From that day forward, I wanted every statement my client spoke, wrote or pled that the defense possessed for direct and impeachment purposes. I want every investigative report, every background check, criminal or otherwise, every employment record, medical record and relevant company record relating to the case and its witnesses. Finally, I learned that I needed more lead time. Years ago, a “seat of the pants, throw it on the wall” approach was not uncommon especially if the litigation costs were to be kept in check. Today, the internet allows case construction at a much-abbreviated cost. Bottom line, do the discovery homework, anticipate the defense, and be prepared.
Randy Stafford v. Keller Industries (1988)
Randy Stafford was fired from his job following a worker’s compensation claim. He was a long-term employee without significant personnel complaints. In fact, the thing that made his case palatable was that the employer did not give a reason for his termination. The temporal relationship between his filing of the worker’s compensation claim and his termination were close, so circumstantial evidence suggested that the termination was related to his filing of a claim.
Randy was not litigious. He had no prior lawsuits or criminal convictions. He was a reliable employee and very credible on all issues. We tried the case in two days and after two hours of deliberation, the jury returned a verdict in Randy’s favor and awarded a sum that covered the time he was unemployed. The Defendant appealed the case to the 9th Court of Appeals where we won and to the Texas Supreme Court where we also won.
THE TAKEAWAY: Most plaintiff’s cases rise and fall on the credibility of the plaintiff. Having a deserving plaintiff who merely wants what is fair goes a long way with jurors. Jurors are often suspicious of a plaintiff who appears too slick or seems to have a motive to game the system.
Every trial lawyer develops certain repetitive strategies that resonate with a jury. There are countless books that discuss issue framing and things like the Reptile approach. These books should be read and utilized. There are also seminars that instruct on rhetorical tools and the appropriate manner, eye contact and physical presence that works with juries. My favorite is Trojan Horse Method with Dan Ambrose. Gerry Spence’s Trial Lawyer’s College is also excellent. At a minimum, every trial lawyer should conduct mock arguments in front of a mirror and in front of critics. How the tone of your voice rises and falls matters. The volume of your voice matters. The pace at which you deliver your speech matters. What you do with your hands matters. How you make eye contact and for how long to each listener matters. Your posture and movement in the courtroom matters. Courtrooms are the stage and every movement and word matters to the jury. Finally, the substance also matters, so do your homework and be prepared on every detail.
One of the approaches I used in Stafford and still use to this day is making commitments to certain proof in opening statement and checking those commitments off in closing statement. “I promised you that the evidence would show that Randy did not violate any company policy. Here we are in closing argument and the defense failed to prove one instance of a violation. Promise made, promise kept.” Being able to make and keep promises is important to everyone. Trials are about presentation, proof and promises. Although this seems terribly elementary, bookending your proof with promises made and promises kept gives jurors a reason to see it your way and specific evidence to persuade other jurors that are not going your way.
Keith Van Boskirk v. Texas A & M (1991)
Keith Van Boskirk was a student at Texas A & M University. He participated in the annual building of the bonfire performed solely by students at the time. The Texas A&M bonfire was the largest bonfire on any college campus. The students, often referred to as Red Pots and Brown Pots, cut down full size pine trees, stacked them vertically, doused them with propellant and set them ablaze historically the night before the annual football game against the University of Texas Longhorns. Keith was involved in the harvesting of the trees. Unfortunately, one of those trees fell the wrong way and collided with Keith fracturing his pelvis.
I sued A&M contending that they failed to properly supervise the bonfire preparation process. In Texas, Universities are generally immune from suit unless you can prove that a condition or use of real or personal property by the university caused the injury. We contended that the use of the trees was indeed covered by the tort claims exception and the court agreed allowing us to try the case.
I tried in the case in College Station, the home of Texas A&M. Voir dire was particularly challenging given the partisan panels who simply loved A&M and the bonfire. Many of the venirepersons worked for the University or had some affiliation as a former student, parent, or vendor. Fielding an unbiased jury was practically impossible. We were unable to move the case to a different County, so I was stuck with a panel that despite my efforts still had Aggie lovers. I tried the case twice to 2 different hung juries. In final argument, I warned the jury that one day a real tragedy would occur given the enormity of the project and the lack of substantial supervision. On that, I was unfortunately prophetic.
After the second hung jury (9-3 in my favor), Texas A&M renewed their earlier Motion for Summary Judgment and the court granted it dismissing our case. Following the summary judgment order, I instructed my paralegal to file a notice of appeal which she promptly did. I failed to instruct her to file an appeal bond, which, at the time was jurisdictional. Thirty days later I received an Order dismissing the Appeal for failing to file a cost bond. I immediately realized I had likely committed malpractice, although there was no certainty any jury would find the case could succeed after 2 juries could not agree. My boss, after chastising me for the inexcusable oversight, took the practical approach and had me call in the client, explain my mistake and its implications and see if we could pay something in compensation to avoid a lawsuit. Fortunately, the client was completely reasonable, and we were able to resolve the circumstance amicably.
Six months later, I was reviewing the advance sheets as we did before the internet, and I ran across a case from the Texas Supreme Court involving a lawyer who, like me, had filed a notice of appeal but failed to file an appeal bond. Rather than accepting the long standing but unfair rule, he appealed his case to the Texas Supreme Court arguing notice was what mattered more than the ministerial payment of the bond. The High Court reversed the long-standing rule that the bond was jurisdictional and reinstated his appeal.
THE TAKEAWAY: Always read and re-read procedural and local rules before you engage in any legal endeavor that is not part of your routine practice. Do not delegate matters of that importance to a non-lawyer. Finally, if something seems manifestly unfair, challenge it. Obviously, I wished that I had appealed the decision of the court of appeals to dismiss our appeal as the lawyer in the later case had. Had I done that, I would have been able to continue my appeal of the summary judgment and at least had a chance at a third trial. The other major takeaway is the reaction of my boss. Lawyers make mistakes. Having the maturity to not overreact is amazing in retrospect. I probably would have fired me. Don’t get me wrong, this event set me back reputation wise and probably delayed my partnership track for years, but he didn’t give up on me. I never made that mistake again.
William Guillory v. TEIA (1991)
My father was a trial lawyer. He was the District Attorney in Orange County, Texas when I was born in 1961. Later, he was a criminal defense lawyer and won more than his share of acquittals. Following my freshman year in college, my father felt that I should understand the importance of making good grades, so he contacted the local Boilermakers Union boss, Dewey P. Cox, and arranged for me to apprentice during the summer at the local refineries. I was assigned to Bill Guillory, who was a Superintendent. Over the summer of 1980, I worked in vessels, towers and tanks mainly cleaning up after the boilermakers who performed maintenance on the equipment.
Ten years later, Bill Guillory came to our firm following an on-the-job injury. His case was assigned to me at his request. The case was a fairly routine worker’s compensation industrial injury case and the Insurance company simply did not want to compensate Bill. The file had several sets of medical records and bills. In those days, everything was printed and much of the organization was left up to the lawyer. Bill had a son named Bill who also used the same doctor as his father. During the course of discovery, young Bills records were interspersed with his father’s and of course there were factual inconsistencies that made the records distinguishable.
During trial, I submitted into evidence a large stack of medical records that inadvertently included a record that was young Bills. At a break, I noticed my mistake and simply substituted the correct record with the wrong one. The problem was I failed to ask leave of court to do so. The court reporter saw what I did and reported it to the Judge and opposing counsel. The Judge called us into chambers and berated me for tampering with the evidence. He offered to give the opposing counsel a mistrial which he declined and forced me to call my boss in his presence and explain my conduct. We did just that and I explained that my intent was to provide a clear record and I did not intend to break any rules. Nevertheless, I was I big trouble. The court refused to allow me to correct the record and we proceeded with trial.
Defense counsel used the son’s records to prove that no diagnosis of a back injury existed and my client must be lying. I couldn’t believe that he was using the records in that manner. I objected, but the court still fuming at my conduct over-ruled my objection and let the farce continue. On re-direct, I pointed out the difference in dates of birth and asked my client if he was indeed 24 years of age to which he said no and I asked him if he had a son of the same name who was also treated by the doctor and he said Yes. The points were made.
In final argument, defense counsel continued to pursue the wrong records as proof of my client’s lack of injury, even though the jury now understood the mistake. In my closing argument, I fell on my sword and told the jury I made an inexcusable mistake. I then asked them not to punish my client for my conduct and asked them to consider the real evidence. Throughout the entire ordeal, my client kept asking me, “What’s the big deal?” Worried about the outcome, I demurred and promised we would discuss it after the verdict. The jury returned a verdict in favor of my client and awarded the maximum amount allowable under the law. Afterwards, the jury told me that the truth mattered more than my mistake and that they were upset with how the defense lawyer misused the records. Thankfully, the Defendant paid the judgment in full without appeal.
THE TAKEAWAY: Mistakes happen in trial and most are curable. As a young lawyer, if a mistake occurs, think carefully about seeking the court’s guidance or that of a colleague before you proceed. The devil is in the details. Oftentimes we are overwhelmed by the paper. During those early years, I conducted trials without co-counsel or any trial support whatsoever. I marked my own exhibits, introduced them, handled all motion practice and all the administrative tasks that accompany a trial. Many lawyers still do, and it is no easy task. I now conduct trials with every document in folders in a notebook, so that I don’t get anything mixed up. Much of the time, we organize everything electronically and try cases paperless. It’s simple but effective. Organization should begin the day the case comes in. There should be separate files for plaintiff and defendant’s pleadings, discovery, document production, evidence, motions, orders, contact with client, correspondence, expenses, depositions, research, insurance, photographs, videos, experts, medical records, medical bills, wage loss, and anything else relevant to your specific case. It is critical to be organized in front of a jury. The jury forgave me on this occasion, but don’t press your luck.
CIMINO v. RAYMARK INDUSTRIES (1990)
In 1989 and 1990, Provost and Umphrey along with Ness Motley and Reaud, Morgan and Quinn pursued a 2298 plaintiff asbestos class action/consolidation against Fibreboard, Pittsburgh Corning, Armstrong Contracting and Supply and Carey Corporation. The USDC Easter District of Texas had accumulated thousands of asbestos cases over the preceding years and a class action trial seemed like the best way to dispose of the backlog. At this point, multi-district litigation had not taken over the coordination and discovery of mass torts. Judge Robert Parker devised a procedure that would include three phases of the overall litigation. Judge Parker would oversee the first phase which involved 10 class representatives on the issues of liability and gross negligence. The second phase would be a product identification phase that would theoretically assign percentages of exposure by product to the class members. How that would be tried was not entirely clear and ultimately the parties entered into a stipulation that assigned agreed upon values to each defendant. The third phase consisted of 160 sample cases of varying degrees of illness which would be tried as essentially damage trials whose verdicts would be extrapolated to the entire class, a novel theory. Trial of the sample cases were divided between Senior Judge Joe Fisher and Judge Richard Schell. Internally, Greg Thompson led a team in Judge Fisher’s court and Diane Dwight led a team in Judge Schell’s court. Most of the sample cases were tried by associate attorneys at Provost & Umphrey and Reaud, Morgan and Quinn. I tried 18 of those cases, all before Judge Fisher.
All told, each side of the litigation utilized fifty or more lawyers in the three-phase trial. All phases were tried over a nine-month period. At the helm in Phase one for the plaintiffs were Walter Umphrey, my boss, and Ron Motley, a legendary asbestos trial lawyer and Wayne Reaud. The Defendants were led by Bob Daggett, Henry Garrard and Bill Harvard among others. Also taking the lead for the plaintiffs were Glen Morgan, Chris Quinn, Joe Rice, Greg Thompson, Diane Dwight, Chip Ferguson, Brent Coon, and David Brandom. Many others participated.
As an aside, because there may not be another opportunity to mention him, is the tragic story of Chris Quinn. Chris was a few years older than me and attended Baylor University as well. Chris was part of Baylor’s 1974 Cotton Bowl Championship team coached by Grant Teaff. Chris married a beautiful blonde from my hometown of Orange, Texas named Becky Beach. I knew Becky casually growing up since I played little league sports against her brother Brian. She was a court reporter which is how she met Chris. They had five children and were just the finest people. Chris was a partner in the firm of Reaud, Morgan and Quinn and was an excellent lawyer, husband and father.
On June 13, 2002, Chris was at his desk working as usual. An elderly potential asbestos client named Richard Gerzine came to the firm that morning to see Mr. Reaud. Reaud was not available. Gerzine’s potential asbestos case had been declined by the firm and he was there ostensibly to have another review. Gerzine was carrying what looked like a brown paper package of some type of fishing equipment. The receptionist apologized for Mr. Reaud’s absence and Gerzine casually said that’s ok, are any of the other lawyers available? The receptionist buzzed Chris who agreed to see Mr. Gerzine. As Gerzine entered Chris’ office, Chris stood up to greet the client, Gerzine dropped the brown paper box exposing a 12-gauge sawed off shotgun and with two blasts ended Chris’ life. Gerzine was convicted and sentenced to life in prison where he later died. His imprisonment and death for this senseless and despicable act was little justice for the loss of Chris.
Back to Cimino. In preparation for the cases, Judge Parker ordered that all plaintiffs be deposed. He gave the defendants a time limit of 45 minutes. We bought egg timers and wound them to 45 minutes at the beginning of each deposition. When the bell rang, we were done. The depositions lasted for three months starting each day at 9:00 a.m. and ending around 9:00 p.m. At the outset, the contract defense attorneys hired to take our client’s depositions would use a 60-page questionnaire and go as far as they could before the bell rang. Eventually, those defense attorneys who were really interested in our client’s testimony would dispense with the questionnaire, ask pertinent questions, and 45 minutes was plenty of time to get what they needed.
The vast majority of our clients were male refinery and chemical plant workers who were between the ages of 60 and 80. What we learned is that the wives were the ones with all of the details. Most of our clients relied heavily on their wives for historical information as well as family details. Their stories were markedly similar. Most worked shift work for years, raised children, attended church, fished, hunted and lived close to where they were raised. Most smoked, failed to exercise regularly and didn’t socialize or travel much. All were exposed to asbestos dust and other carcinogens without their knowledge. Most were union workers. All of the clients had varying degrees of asbestos related injuries to their lungs. Their difficulty breathing varied and some had lung cancer and mesothelioma. Some died before their cases came to court and were represented by their surviving spouses and children.
The first phase of trial was by far the most interesting. Watching Umphrey, Motley, Daggett and Garrard was true theatre. Daggett was a San Francisco dandy who wore a bow tie and was the least southern in demeanor. He represented Fibreboard, a California asbestos company that lost its founder to mesothelioma. His argument was a compelling one because the founder’s sons had also managed the business. What father would expose his sons to a deadly carcinogen the story went. The answer was equally simple, a father who failed to take the risk seriously.
Henry Garrard represented Pittsburgh Corning. He looked like the late comedian Lewis Grizzard and fancied himself as the only other country lawyer than Umphrey. Ron Motley was a case study in confidence and the value of a great memory. While most of the lawyers arrived an hour before court was to begin, Motley would invariably bust through the courtroom door moments before the start of the trial day and exclaim to the court, “Your honor, we’re ready for our next witness.” Motley had an encyclopedic memory of the Defense liability documents. He also had a knack for summarizing the contents of a corporate document and delivering a searing characterization that belied the plain text of the writing. He performed an artful interpretation, rather than reading the exact text. Confounded by his arguments, the defense attorneys were never able to soften the blow of his indictments. It is hard to explain exactly how he did it other than to call it art. For Motley, the contents were in the eye of the beholder. He surmised what the author was thinking and told the jury just that. It was just brilliant.
Umphrey, on the other hand, was plainspoken, deliberate and absolutely convincing. Jurors seemed mesmerized by him. Umphrey was a physically large man, at least 6’2” with white hair reminiscent of Lee Marvin. He didn’t have a shy or self-deprecating bone in his body. He could intimidate but was never violent. For years, I witnessed his disarming presence at work. A lawyer would enter Umphrey’s office with a grievance, ready to confront him and in a matter of seconds Umphrey would shut him down. He was the king of the ad hominem argument. At one partnership meeting, a lawyer raised a completely legitimate complaint about a partnership distribution and Umphrey’s response was, “You would understand things better if you spent more time in the courtroom and less time at seminars.” Seminars had nothing to do with the issue, but in ad hominem fashion, Umphrey shut him down. He was respectful in the courtroom but firm. Personally, I never saw Umphrey be rude to anyone that didn’t deserve it. His usual manner was polite and patient. He was loyal to his friends, generous to his family and firm, and reliable in his business dealings. More than any other lawyer, he embodied the plaintiff and channeled the plaintiff’s thoughts and feelings.
Following court one day, PU partner Chip Ferguson approached me and said Judge Fisher wanted to see me in chambers. I went back with the trial team petrified that I had done something wrong. Instead, Judge Fisher wanted to know my opinion about an issue they were debating. I was shocked. This legendary Judge appointed by Eisenhower, asked for my opinion. I no longer remember the issue or my response, but for a young lawyer, having this Judge ask my opinion mattered. I spoke with brevity and clarity as the Judge preferred and the hearing went our way. I woke up a little more confident the next day.
THE TAKEAWAY: We often think of mentors as those who instruct us personally. Another type of mentorship involves display and observation. Take the opportunity to watch a great lawyer try a case, pay attention, take notes and let it soak in. Sometimes, even the great ones may not ring true for you. The point is that observation is instructive and allows us to learn. You don’t have to imitate them, but you can take certain refrains and add them to your toolbox. We all have our own style, but like great comedians, we all steal a line or two now and then.
It is rare to try a case and not wish you had done certain things differently. We learn more from our mistakes than our successes in my estimation. The value of good grades is the confidence it engenders, but the law allows us to improve as students over our lifetime. A friend once characterized practicing law as a lifelong book report. In many ways it is. I’m a better student today than I was in law school. For one, I don’t have the distractions of youth to deal with and secondly, providing for my family is a great motivator.
I don’t have the benefit of narcissism to ignore good advice. This is a profession filled with those who see no value in considering different viewpoints or new theories and approaches. Good for them. The best thing that can happen in trial is to have an opponent who is overly confident in their case. Regardless of all of the depositions we take and discovery we answer, until those witnesses appear at trial before a Judge and jury, no one, and I mean no one, can predict an outcome.
Cimino resulted in a billion-dollar award. The case was appealed to the Fifth Circuit which reversed the procedure Judge Parker employed in the third phase. It remains one of the most instructive periods of my trial life
Nonetheless, the case ultimately settled and our clients were all compensated.
Early in my law practice, I decided to pursue local theatre as a hobby. Rehearsals and shows were in the evenings and on weekends and wouldn’t often conflict with my job. As a child, I wanted to act but my mother was not big on the idea. She was afraid it would turn me gay. I sang in church and school choirs. By the time I was in high school, sports and girls were more interesting than acting.
I was in my late twenties when I auditioned for Pippin produced by the Beaumont Community Players. I got a part in the chorus where I sang and danced. It was a mind-bending experience on many levels. First, the cast members were from different walks of life than me. Most were in jobs they loved, and most weren’t chasing the dollar. If there were prima donnas, their egos didn’t compare to most lawyers. The conversations at Denny’s following rehearsals centered around art, literature, movies and the struggles of life. One died in a car accident and we scattered his ashes over the green behind my house. Another later died of AIDS.
In terms of transferable skills between the stage and courtroom, I learned the importance of filling a space and speaking intentionally. I grew up speaking in public, primarily at church concerts. In high school I participated in debate and extemporaneous speech competitions, but I never had a real coach. Public Speaking was natural for me, no doubt influenced by my trial lawyer father. Dad could sound like the authority on anything. I recall countless cocktail parties, family gatherings and social occasions where an issue would come up and Dad would take the floor as if Moses were laying down the law. Never one ounce of doubt and everyone paid attention.
Despite having a natural gift of gab, theatre helped me understand that rhetoric is a craft in order to be effective, speaking publicly requires certain tools and practice. I didn’t know it, but I needed instruction. The good news is Directors in Theatre are not shy about instructing. My first show with a major speaking part was Carnival. I was cast in the role of Paul Berthalet, a disabled war veteran puppeteer, who falls in love with the female lead Lili. Lili was played by Lamar University Theatre student Laura Brown who simply blew everyone away with her incredible talent. In retrospect, I did not deserve to be on the stage with her.
Early in rehearsals our director, Jerry McMillan, yelled at me, “Stop the monotone”. I responded, “what do you mean”? He said, “the tone of your voice never changes pitches. You know how your voice goes up the scale when you sing, it should vary when you speak as well.” This was, as they say, an “Aha” moment. In law school, little attention is paid to how we sound and vocalize when we argue. The focus is much more on substance. In fact, we are often encouraged to abandon emotion and speak matter of factly. But juries and indeed Judges must remain interested in what we are saying. How we speak often conveys a level of credibility and conviction. Bottom line, varying the pitch, the volume, the speed of our speech and the quality of our voice matters.
How we move, our posture, our eye contact and hand movements impact the quality of the communication to the audience. Many lawyers pace back and forth aimlessly in front of the jury. This, can be a complete distraction. Instead, move to a place that makes sense, stand and deliver. Some people have natural body language that conveys sincerity. Depending on height and body habitus there is only so much many of us can do. But, the one thing we can all control is eye contact. Making direct eye contact as a thought is delivered to one specific juror, then moving a few jurors down and delivering another thought while focused on the eyes of the second juror and so on is an effective way to communicate. If you bounce from juror to juror in the middle of thoughts, it is simply distracting, and no one will pay attention.
Most important in the rhetorical tool kit is the concept of active voice. All good writing occurs in active voice and so does all good speaking. Admittedly, I violate this rule and so do most lawyers. To really understand active voice, read Strunk and White’s, The Elements of Style. Everything they say about active voice in writing applies universally to speaking.
Finally, there is a concept in the theatre referred to as “suspension of disbelief”. Viscerally, we all know that what is happening on stage is not real. After all, these are actors repeating memorized lines. There is a scene towards the end of Carnival where Paul raises his hand to strike Lili and murmurs an angry line before stopping himself. In the second week of the show, at a time when I finally had my lines down and was beginning to understand the importance of appropriate emotional action on stage, I delivered the line, apparently in a convincing manner, and the entire audience gasped. Wow, the audience had suspended their disbelief, and joined in the story.
The same happens at trial and is referred to as emotional congruence. As Trojan Horse Method teaches, all memories are stored in pictures and images. As you communicate the event, step back into the image, remember the details of the scene, the color of the sky that day, the mood of the crowd that formed to get a glimpse of Mary lying motionless on the gravel, the sound of sirens as the emergency vehicles approached, the despair in her mother’s eyes… Deliver it as it happened in those pictures and images and the jury will join you at the scene.
Robert Tade v. The Imperial Palace Hotel (1990)
Robert Tade was a refinery worker from Port Arthur, Texas who took a vacation to Las Vegas, NV and stayed at the Imperial Palace Hotel on the Vegas Strip. During his stay, he got on an escalator moving upward. About three quarters of the way up, the escalator shook violently and the occupants above Robert fell towards him causing him to fall backwards and injure his neck. He required a laminectomy of a cervical disc. He had a successful surgery and by the time of trial had returned to full duty at work. The case bounced around the firm and finally landed on my desk.
Suit was filed in Federal Court in Nevada due to diversity jurisdiction. The case was defended by an austere defense attorney named Bruce Wilkerson who could not stand me. We worked the case up and appeared for jury selection in Las Vegas. The judge assigned to the case was Robert Jones from Oregon who was sitting by assignment for this trial. The offer was xero which made my job easy.
Juries in Las Vegas can be unpredictable. There are many retirees with conservative tendencies sitting in those jury pools. Nonetheless, we fielded a jury and began trial. Mr. Tade made an excellent witness and the jury paid attention. Our allegations against the IP included claims that they had failed to service the escalator regularly which likely caused the malfunction on the day in question. IP defended the case by saying that there was nothing wrong with their escalator and Mr. Tade had simply lost his balance. They offered scant post-incident records that failed to determine the cause of the alleged malfunction. The escalator was returned to service shortly after the inspection without any major repairs.
I subpoenaed all of the maintenance personnel on duty that day and invoked the witness rule. The witness rule requires witnesses to stay out of the courtroom until their testimony is called for to make sure they don’t mimic previous witnesses. None of these witnesses had been deposed and it did not appear that they had been prepared for testimony by the IP lawyer.
I examined each witness in detail about the maintenance procedures employed by the Imperial Palace. There was no set written procedure for routine maintenance and each witness’s testimony varied dramatically. One testified that they checked the escalators once a week and another testified they checked them once a month. One testified that they hadn’t checked them in six months. As for what the inspection entailed, they were all over the map on that as well. By the time I called the 6th maintenance person, the jury was just shaking their heads.
Our trial team which consisted of me and one paralegal were staying at the Golden Nugget which was in walking distance of the courthouse. After court that day, we retired to the hotel to prepare for the next day’s testimony that included the testimony of our escalator expert Joe Williamson. We thought that the trial was going pretty well and then the phone rang. On the other end was a claims representative for the Imperial Palace. He said that he and his partner were sitting in the courtroom watching the trial. He said that Bruce refused to discuss settlement with me but said that they could speak to me independently. He asked if they could come meet with me. I confirmed with Bruce that he had no objection and told the representatives to come see me at the Nugget.
They began the discussion by admitting that the day hadn’t gone that well for the Palace. He said, “Jim, you had your way with our witnesses and I’m not sure we can recover”. We discussed Mr. Tade’s injuries and what a reasonable settlement would look like. They, of course, had to step out and make a few calls during the course of our negotiations to get authority from their bosses to settle the case. Sure enough, we were able to arrive at a fair number that Mr. Tade would accept and the case settled before court the next day.
THE TAKEAWAY: Just because you haven’t deposed a witness doesn’t mean they can’t help you. The way I looked at the personnel is either they would contradict each other as they did, or they would testify in lock step having been over-prepared which would also lack credibility. Either way, it gave me a good argument for liability. It really helped to have the adjusters in the courtroom as this played out. As you’ve seen, historically I’ve been the king of the zero offer. Never ignore the possibility that a fair settlement can occur. Frank Branson once said, “with reasonable attorneys on both sides, the vast majority of case should settle”, and they do. There is nothing wrong with compensating your client.
James McKenzie v. Union Carbide and Montello (2002)
Union Carbide owned an asbestos mine in Cailfornia in the Indria Mountains. They mined an asbestos form they named Calidria which through the seventies and eighties became a component of various products including drilling mud. Montello made the drilling mud at issue in this case and showed through demonstrative exhibits that the amount of asbestos utilized was miniscule. Mr. McKenzie was diagnosed with asbestosis and was still able to function without breathing equipment.
The case was tried in Harris County with Ness Motley partner Don Migliori assisting with the liability evidence. Along the way to trial, huge contributions were made by Andy Watters and Troy Chandler who had developed the majority of the liability evidence against Union Carbide. Montello was an unknown drilling mud supplier who had never been to trial over their products asbestos content.
We often go to trial against defendants because they won’t pay. In a multi-party case, it is important to weigh exactly how bad each defendant is needed at trial and what their impact can be on the final verdict. This was such a case. Mr. McKenzie was a believable witness who did not appear to be terribly ill. His condition created an unknown future that could, if it advanced, be very disabling and potentially fatal. The liability evidence against Union carbide was compelling. They entered the asbestos business in the mid-sixties at a time when much of the medical evidence of asbestos’ harmful properties were just beginning to emerge from the dark due to the incredible work of Irving J. Selikoff and colleagues at Sloan Kettering in New York.
Union Carbide failed to warn of the dangerous properties and profited handsomely from its manufacture of the magical mineral. That we could prove. Montello, on the other hand, defended the case as if their company’s survival were on the line. Their demonstratives made it appear that Mr. McKenzie’s illness was most likely caused by other exposures at other worksites to different products. They also argued that they were not an asbestos company, they were a drilling mud company and just like Mr. McKenzie, they too had not been warned. They defended the case based on exposure and liability. Union Carbide’s defense was less compelling and had it been the only defendant at trial, we may have won. Unfortunately, the jury came back in the favor of both defendants and the first trial ever attempted against Union Carbide went down in flames. Nonetheless, they would later face justice in other courts and not fare so well.
During the trial, my mother was on her deathbed in Dallas where my sister had taken care of her over the last few years. Mom had dementia brought on by diabetes and there was little the doctors could do. She died the morning of jury deliberations. My sister called me that morning at 5:30 to deliver the news. Mom was 78 when she passed away and I wasn’t there. We informed the Judge that I would need to return to Beaumont to handle the arrangements for her transport to our hometown Orange for the services. The Judge was taken aback and said he would have continued the trial had he know of her condition. I explained that she had been failing for months and no one could have predicted that she would pass at this particular time. He allowed me to return to home.
THE TAKEAWAY: Nothing in life is more important than family. Yes, the law is a jealous mistress, but on your deathbed, you want to be surrounded by family not law partners. My mother would have been the first to tell me, “go to trial, I’ll be fine”. She loved and cared for me my whole life and was a better mother than I was a son. Life has no do overs. What transpires in life is the product of choices. The consequences are unpredictable. Following my mother’s death and the birth of my children, I made several choices, the consequences of which are still occurring. I have taken risks that may eventually appear foolish, but like Bill Harvard said, that is the rest of the story.
In 2008 my father passed away at the age of 87. He was the first college graduate on his side of our family. He played football at Groveton High School and left school for a year to help raise the family after his father died prematurely. He had a football scholarship to Sam Houston State but left college and served in the U.S. Navy during World War II. He was a County Judge, District Attorney, and trial lawyer. He survived the twentieth century with gusto, optimism and independence. He left an indelible mark on my life and was at peace when he departed. I was by his side when he died. He suffered from COPD but was fortunate enough to keep his mind until the end. His words echo in my mind to this day.
In 2012, following the resolution of HRT, I looked around my office and noticed I didn’t have much business. My work in Austin had consisted of the HRT litigation to the exclusion of just about everything else. The last decade spent in mass torts was a time of growth professionally, but given certain rulings from the Texas Supreme Court, the future of mass tort trials in Texas looked bleak. During an AAJ convention in Arizona, a colleague from New York asked if I would ever consider a moving there and joining her firm.
Moving from Texas was a painstakingly difficult decision. My ancestors arrived at Indianola in the Texican territory in 1831 and worked on the Shanghai Pierce ranch in Blessing during the 19th century. My maternal grandmother was born in Palacios where her mother had been dechurched for dancing at a county fair. Grandma Merrill graduated from the University of Texas nursing school in 1921 100 years before Macy will graduate, God willing. Grandad Merrill worked his entire career for Texaco. I have the gold watch they gave him in 1952 after 30 years of service. I attended Friday Mountain Boys Camp in Driftwood, Texas for 7 years between the ages of 7 and 14. As a boy, I was indoctrinated in the legacy of Dobie, Bedichek, and Webb by Capt. Rodney J. Kidd in the evenings under the live oak trees in the front yard of Thomas Jefferson Johnson’s pioneer house.
When we first moved to Austin, one of the first meetings I arranged was with Bill Wittliff just to see him for myself. I revere Shrake, McMurtry, McCarthy, Strait, Crenshaw, Royal, Nelson and Street. These are my heroes. Leaving all of that behind was tough for me but equally tough was Kam leaving her family behind in Beaumont. Unlike me, her parents were still living, and our elder daughter Kylee was now married and raising a family of her own. Kam is Cajun by lineage, her father being a Fournier. The family means everything to them and being across the country had to be daunting.
A more immediate concern was leaving our home in Bee Cave and the excellent progress our children had made in the Lake Travis community. Walking away from that on many levels seemed crazy. I knew that I didn’t want to give up the progress I had made professionally. I now had a large community of lawyers nationwide who knew that I had no fear of the courtroom and could still bring home big verdicts in big cases. Trial is trial no matter where you are. The rules of evidence and procedure vary slightly from jurisdiction to jurisdiction, but trial is trial. Juries universally want to do the right thing, so good cases succeed no matter where you are, except for west Texas. Some counties out there have never had a plaintiff’s verdict.
Kam and I had visited New York many times during our marriage. We both love theatre and dance and Macy marched in the Macy’s day parade in 2009. Visiting and living there would were not going to be the same thing. I went to New York, met with the partners of my colleague’s firm on the lower east side and they offered me a position on the spot. They didn’t really have any partners even though they had 90 attorneys, but they seemed to take good care of their lawyers financially. Where to live was the next question.
We searched around the surrounding Burroughs to find good schools and a “suburban” lifestyle. Westchester was nice, but Long Island really impressed us. We settled on a Hampton’s style house in East Hills and planted ourselves firmly in New York. I really thought this would be our last move and that firm would be my final stop. My office was located in a 10-story building on Broadway across from NYU. My office was approximately 8 feet by 12 feet with a small window looking out on another building. Our house was new construction with a huge basement and perfect for entertaining.
As generations-long Texans with the anticipated southern drawl, we were a novelty among our new acquaintances. Our first social occasion was our realtor’s son’s wedding and reception at a local country club. It was our first Jewish wedding and how fantastic it was. Integrating ourselves into the community was a mind opening experience and culturally a great experience for our children. I can’t count the number of bar and bat mitzvahs the children attended over our first year in New York. They hit the island at the perfect age.
We were fortunate enough to be introduced to some members of Old Westbury Golf and Country Club where we began the admissions process. Our sponsor was describing the demographic profile of the club to me, which sounded great, given my fascination with people from all backgrounds. My response to him was, “hey, every club needs a token Texan”. Sure enough, the fine folks at OWGCC allowed us to join and become a part of their community. Regardless of what anyone may say about New York, our reception was warm, kind and caring. The only cold thing we experienced was Super Storm Sandy.
I waived into the New York bar and immediately began working on the firm’s pharmaceutical docket. I didn’t see a trial setting for almost two years. It was a period of discontent and those close to me knew it. Fortunately, my bosses had a solution. The firm has a Los Angeles Office that specializes in one of my former practice areas. They asked me if I would like to spend some time there providing trial support. My response was, “how about if we just move there”? They seemed a bit surprised but endorsed the idea. This was late summer 2013.
My son Trip played on a traveling 12-year old’s baseball team that spent the entire summer playing all over Long Island and our last tournament of the summer was taking place in Cooperstown, the home of the baseball hall of fame. My son is a case study in persistence. Throughout the entire summer, Trip had, for no good reason, been left out of the lineup and treated poorly by his head coach. We saw it and other parents routinely mentioned the slight to us. My advice was, “keep your head down and let your arm and bat do the talking”.
Our moving van was scheduled to load the last day of the tournament, so Kam and I had to go back to Roslyn. Predictably, Trip finally got his chance to pitch. He called us that night and his team won the game 17-4, with Trip pitching a “mercy” game and hitting two home runs. That was his last baseball game.
We loaded the vehicle with our two children, dog and cat and literally drove from New York to California. Upon reaching California, we settled in Beverly Hills where the public schools are the best in the city. It was also close to my job in Century City and boy do you want to avoid the LA traffic. The California office was probably like a lot of satellite offices. If it makes a profit and doesn’t cause the home office any headaches, it achieves its goal.
I settled in and did my best to integrate into the California practice. One of the most pressing issues was taking the California Bar exam. By this time in my career, I was a member of the Texas, Colorado, Pennsylvania and New York bars but in order to really practice in California, I needed to pass the bar. At age 52, recalling the nuances of criminal, commercial, property and all the other courses long since shelved in the back of my brain was no easy task.
I enlisted the help of Tina Post to help me prepare for the February 2014 bar. There are people in your life that come along at the most important moments. I got Tina’s name from a person at a bar. She tutored me for two months and provided invaluable insight as to the strategy of the exam and also provided an ear for me as the tumult in the office was growing. My attempted management of the office wasn’t going well. Admittedly, my perspective on how to handle cases differed dramatically from almost all of the members of the firm, only one of whom was over 40. Most had never tried a case and never really intended to try one. This was my first exposure to case management lawyers.
In my upbringing, plaintiff’s lawyers tried cases and that was an absolute. The idea that you would simply manage the discovery and not focus on trial was anathema to me. For me, how you dressed, how you carried yourself and your dedication to trying cases all mattered. There were several younger lawyers that were not raised with my approach. I worried that it was a generational difference but was counseled by my New York counterparts that I was mistaken.
About two weeks before the exam, things had become rough enough that one of the lawyers wanted an intervention from our liaison New York attorney. I was trying to study for the bar and now was being asked to set that aside study to deal with work issues. I explained the quandary to Tina and she surmised that they were simply trying to derail my preparation. The last time she saw me before the exam, she commented that if I had two more weeks, which I didn’t, I might pass the exam. Shit.
Entering the conference center in Pasadena to take the exam is daunting. There are about two thousand bright young minds all there for the same reason. In that hall were graduates of Stanford, Boalt Hall, USC, and here I was almost 30 years removed from the Texas bar sitting beside them and hen pecking my laptop while their fingers smoked the keyboard like Richard Petty. Nonetheless, I buckled down and did the best I could.
Following the exam, I returned to work and waited for the results. The California Bar is notoriously difficult. After all, California does not need of a bunch of new attorneys. During one of my sessions with Tina, I discussed my greatest fears in taking the exam. What if I fail? How do you tell your kids to make good grades if you can’t pass the bar exam? What would my wife think? What would this mean for our future? How does a family handle failure at our age? How would I have any authority at the office? Would I take it again? Would I move back to Texas with my tail between my legs? All of these were legitimate worries, most of which are sound reasons to not change directions in mid-career.
The results are now posted on the bar’s website. There is simply a pass list. On June 3, 2014 my wife and I accessed the site at the appointed hour and there it was…I passed the exam. Holy shit. The children erupted, she cried, and I stood there looking at the screen like Clark Griswold when the Christmas lights finally came on. This was a pivotal moment in my life. I passed the Texas bar exam on my first try as a 24-year-old recent law school graduate. I passed the board certification exam, but nothing ever felt as momentous as passing the California bar exam at age 52. Only 45% of the applicants passed that exam and I was one of them. Wow.
I notified my bosses and they offered congratulations. By the looks and weak handshakes, I received the next morning, I’m sure most of my colleagues in the California office were none too pleased. Regardless, I returned to work and kept preparing for trial as I always have.
The other amazing accomplishment that winter involved our daughter Macy. She took an interest in Photography and entered her photo in the centennial photography contest sponsored by the Beverly Hills City Council. Her photo was a retrospective shot of an historic theatre with a modern advertisement for an upcoming show. It captured the past and present and revealed a very mature eye on her part. As a freshman in high school, she won the contest. Your children will amaze you.
Robert Adams v. Certainteed
The only case I tried for the Beverly Hills office of the New York firm was on behalf of Bob Adams who was suffering with mesothelioma brought on by years of exposure to cement water pipe infused with Certainteed asbestos. Bob lived in Northern California and really was the reason people enjoy the practice of law. He was absolute salt of the earth and a joy to represent in trial. Bob had been a local Union president and had led a simple, hard-working life raising his children and loving his wife.
As with many of my cases, we began trial with a zero offer. Trial was before Judge Wynne Carvill in Oakland, CA. Judge Carvill was a graduate of Harvard Law School, yes, that Harvard, and worked as a business litigator for Thelen, Reid and Priest before taking the bench. In law school I clerked for the Houston office of Thelen, Marin, Johnson and Bridges, the predecessor to Thelen, Reid. The Thelen firm represented Bechtel Industries who had to be one of the largest and most powerful clients a lawyer could represent. In a prior case against Bechtel, I read the family/company biography entitled, “ A builder and his family” and became keenly aware of the value of government contracts to a business.
Our case focused on Bob’s exposure and his lung condition. Certainteed maintained that the location of Bob’s tumor was inconsistent with a mesothelioma diagnosis and brought several doctors to say as much. I presented experts supporting Bob’s claim and the trial proceeded. The defense attorney was an excellent trial lawyer well-seasoned in asbestos trials. At one point during a break, he mentioned that he could never take my side of a case because he lacked empathy. At this point in my career, I appreciated his candor.
During jury deliberations, the jury sent out a couple of notes indicating that they were grappling with the liability issue. Regardless, they continued to deliberate which started to cause some concern on both sides. Given the age and maturity of defense counsel and the fact that an in-house attorney had attended the entire trial and did not want to go home a loser, we began negotiating the case. Shortly before the jury was about to finish for the day, we found an agreed upon sum that would give Bob more money than he had ever had before. We spoke to the jury afterwards. They were deadlocked, something I have experienced more times than I want to remember. What had them deadlocked according to a couple that we spoke to was the lack of immediate recent testimony concerning the dangers of asbestos. Many of the jurors were younger and had not lived through the public health plague that asbestos really was. Though the governmental reports, EPA regulations and expert testimony touched on what responsible corporations should have done, there just wasn’t solid recent inculpatory testimony by Certainteed employees.
Thankfully, we did what was in Bob’s interest and negotiated a fair settlement. I fear that had the jury gone to verdict, he may have received nothing. While taking verdicts is the measure of real trial lawyers, knowing when to be reasonable and negotiate is also our stock in trade. The case was concluded at the end of December in 2014.
Goldin v. Zimmer (2015)
Jemma Goldin received a knee replacement manufactured by Zimmer called the Nex-Gen Knee. It was billed as a dramatic advance in that industry. Unfortunately, it had a disputed defect that caused it to loosen and fail. The cases ended up before a Federal Judge in Chicago, Rebecca Pallmeyer. My good friend Tobi Millrood, a President of AAJ and a fantastic litigator from Philadelphia, PA called me and asked me to try the Goldin case. As with many knee replacement patients, Jemma was overweight and that contributed mightily to her arthritis in the knee.
Her implanting doctor was at the Hospital for Special Surgery in New York. When I deposed him, he candidly agreed that the warnings he gave to her were routine warnings he would give any patient, and many had nothing to do with the device. Since her case did not follow the normal pattern of failure recognized in the MDL, I had to find an alternative theory and the one common element for the vast majority of patients was obesity. The warnings said little about it and offered no alternative. I worked up that angle and found plenty of medical information supporting this theory.
We tried the case on our own with some help from the MDL steering committee. When I called Jemma to testify, after introducing herself to the jury, she blurted out that she apologized but her memory was not that good and she would try to recall as best she could. I guess she thought that type of honesty would curry favor with the jury, but she was wrong. Despite walking her through the evidence, the jury was skeptical and ultimately found against her.
It was a disappointing loss on so many different levels. First, Jemma was a truly deserving plaintiff who should have been compensated. She chose not to sue her doctor believing that it truly was a product defect and that the manufacturer was primarily liable and that was a very fair and honest thing of her to do. Second, as trial lawyers we are judged by our win/loss ratio. This was a high-profile case being watched by my brethren across the country. These are the types of cases I am expected to win. Third, this was the first trial of my newly opened law firm, so those unfamiliar with my history would see this case as some indication of my skill and prowess. Despite the loss, there were cases awaiting my return, so although I reflected on the loss, I had no time to let it consume me. We returned to Los Angeles and went back to work.
THE TAKEAWAY- Into the book of “you are never too old to learn” came a very important lesson; clients are unpredictable. This case was built around credibility and the most important aspect of the case was the conversation that occurred between she and her surgeon regarding the risks of surgery. When she suggested to the jury that her memory was not that good, she lost whatever trust we may have built with them up to that point. Simply stated, it was devastating. Never take for granted that your client will understand the subtleties of protecting their credibility. Moving forward, I repeat this story to every witness I put on the stand to emphasize the importance of their memory and recollection.
ANGELA SLACK v. LOS ANGELES POLICE DEPT.(2017)
On March 12, 2015 Angela Slack was arrested for alleged prostitution as part of a sting operation by the Vice Unit of the Los Angeles Police Department. She was taken into custody at the Redwood Lodge Motel on San Fernando Road after allegedly offering her services for fifty dollars to undercover officer Marcos Gutierrez. Officer Lenin Freire posed as the arresting officer of Gutierrez to prolong the ruse, while Freire’s partner Gregory Papik arrested Slack. According to Freire, she was irritated about being arrested and offered to share information about local drug activity to avoid confinement. She was transported to the Foothills station in the front seat of a police vehicle with her hands cuffed behind her back.
At the station, she was led into holding tank four where she was searched by officer Alejandra Soto. Freire and Papik were present. Soto recalls Slack thinking she was at the station for an outstanding warrant. According to Papik, Slack stated at the scene, “I didn’t do anything, I didn’t do anything wrong” and then rambled on about a bunch of other things. Papik recalls that she was unhappy being arrested and denied that she had any type of prostitution conversation with Gutierrez. After Slack was left in holding cell four, Soto, Freire and Papik went upstairs in the station to complete paperwork.
During the intake, Watch Commander Scott Kennedy, came into tank four and asked three routine questions: 1. Do you understand why you’re here? 2. Are you sick, ill or injured? 3. Do you have any other questions? Slack reportedly answered Yes, No, No. Kennedy returned to the Watch commander’s Office which does not have view of holding tank four. Slack was left alone in the tank.
Fifteen to twenty minutes later Debra King, a records clerk in the station, walked by the tank and observed Slack sitting with her stomach sticking out. King stated to the Field Investigations Division (FID) that she tries not to look in the tanks when she passes by. Rather than stopping and taking a more careful look, King proceeded to the detective’s office, talked to a couple of people, used the restroom, got a cup of coffee and returned down the hallway. As she passed holding tank four, she noticed that Slack was not moving and that her face was discolored. She mentioned it to Sgt. Anthony Azevedo who was nearby. He came to the window, knocked attempting to get Slack’s attention and then alerted Officers Soltwedel and Haskell who were in the report writing room. Slack had taken off her long sleeved shirt, fashioned a knot around her neck with one sleeve and placed the other sleeve through a mounted cuff ring on the wall above the stainless steel bench she was sitting on and thrusted her body off the bench to strangle herself. The officers entered the tank, cut her shirt from the cuff ring, placed her on her back and began CPR. The officers called for the Fire Department medics who arrived several minutes later and transferred her to Holy Cross Hospital where she later died.
The case came to me early in the operation of our LA office and the facts rang true to me. We filed the case in federal court in the Central District of California in Los Angeles where it was assigned to Judge Beverly Reid O’Connell, a 52-year-old Federal Judge who had been a law professor of my opposing counsel, not that I knew it until after the trial. Regardless, it would be her last jury trial. She died of an aneurysm shortly after the trial.
When I deposed the watch commander in the case, I asked him if he was aware before this incident that the camera surveillance in my client’s cell that covered the area where she hung herself was not working. He admitted that he did. I next asked him if he reported it to anyone. He testified that he did. I asked him when and what was their response. He said, about two years ago and they told me they would get to it when they got to it.
It was difficult to compose myself at the time. This glaring conscious disregard would surely carry the day for my client. The trial lasted two weeks and my witnesses were less than stellar. The true plaintiff was Angela’s son who was doing time in a Missouri prison. We presented him by Zoom from the prison and although the jury was not told he was in prison, the cinder block wall in the background said it all.
My expert witness on jail management did his best, but he just wasn’t strong on cross examination and made numerous admissions that hurt our case. Experts are often the key to good or bad results at trial and in this case, he just didn’t adequately shift the fault to the City. In the end, what the jury thought, I don’t know because the judge didn’t let us question them which was a huge disservice.
THE TAKEAWAY: All Judges should allow willing jurors to speak to the lawyers after the fact. First, this is the best insight a lawyer can get about what worked and what didn’t. Even though you may be angry following a loss, speaking to the jury is critical. Why weren’t they persuaded? Which witnesses made the biggest difference? What happened during deliberations to support or change the view they had when deliberations began.
Greg Gubbons v. Union Pacific Railroad (2018)
In 2015 after I opened Morris Law Firm in Los Angeles, CA, I was asked by Brent Coon to assist him as “of Counsel” for railroad employees who were represented by the Brotherhood of Maintenance of Way Employees, a subsidiary of the Teamsters Union. These employees are covered by the Federal Employees Liability Act (FELA) which allows a jury trial over the cause of the injury and the extent of damages. Punitive damages are not allowed. Most of the cases involve routine injuries the workers get on occasion while maintaining the tracks and rails. Most cases are settled out of court.
Greg Gibbons contacted me just one month shy of the running of his statute of limitations when he became suspicious about certain commitments the railroad had failed to meet. I explained that we needed to get his case on file immediately which we did. Since his injury occurred in Nevada, we filed suit in Federal Court in Las Vegas.
Greg is from Wyoming and looks like he played football in high school. At 39 years of age with most of his work life ahead of him, a wife and son to support, this was a serious case. The injury occurred as Greg was driving a dump truck loaded with ballast across a makeshift bridge the UP had installed using a used flatbed car over a ravine. The “bridge” collapsed as he was crossing, and the dump truck fell fifteen feet into the ravine causing a serious jolt to Greg’s neck and back. He was treated conservatively for 2 years and ultimately required a two-level fusion in his neck. He had the surgery and returned to work a couple of months later. The key issue was the length of his future work life.
We worked the case up and received a trial setting. The court required mediation before a US Magistrate. Greg was a fantastic client in every sense. He followed my advice and we approached mediation from a reasonable standpoint since he was concerned about his treatment by UP on the worksite after the fact were he seen as unreasonable or greedy. My suggestion was that our bottom line should be $500,000.00 which would be a fair reflection of the high likelihood of disability after age 50 given the physical demands of his job. The railroad offered $150,000.00 and wouldn’t budge. We came down to $400,000.00 and they still wouldn’t move.
Brent Coon joined me in representing Greg at trial and we split the responsibilities for witnesses and argument. I was incensed that they would not settle fairly with Greg. Just before jury selection, I informed the UP Claims manager that our $400,000.00 demand would increase by $100,000.00 for every day we were in trial. On Thursday of that week, after much of the evidence had successfully been presented, I approached the Claims Manager and reminded him that our demand was now $800,000.00 and in my opinion a bargain. He responded, “Jim, you’ve got your job to do and I’ve got my job to do.” We concluded trial the following week and the jury went out to deliberate. No further settlement discussions occurred. After about 4 hours of deliberation, the jury returned with a verdict of $5,000,000.00. Greg would spend the next year awaiting an appeal before the case finally resolved in his favor.
THE TAKEAWAY – Stick by your guns. Defendants misvalue cases routinely. If you have reasonable evidence supporting damages, present that evidence and trust the jury. Our verdict was buoyed by a significant amount of pain and suffering evidence, much of which was unavoidable given the nature of his work. Don’t ever encourage your client to malinger. Encourage them to get back to work if possible or at least make an effort to be productive. Juries prefer hard-working people who endure the pain and suffering out of necessity. Build that theme and drive it home.
Dennis Jordan v. Union Pacific Railroad (2020)
In February of 2020, just before Covid became part of our daily vocabulary, a jury in Visalia, CA awarded our client Dennis Jordan $1,300,000.00 for a respiratory condition he suffered due to exposure to diesel gas fumes he received a few years earlier while working on a large piece of railroad equipment called a CAT Tamper.
Dennis was in his late forties and was an ex-cop. The exposure occurred near Tulare County and the case proceeded in that venue. Juries are hard there as the Judge warned me due to the very conservative nature of that area. Devin Nunes is their Congressman and from what I could gather, they love him. I didn’t take this lightly because the first rule of oratory is, “know your audience”.
As I was learning, UP can stick their heels in the mud with the best of them. Dennis had been offered $240,000.00 prior to trial and he simply could not afford to accept that amount since the respiratory condition had rendered him disabled. We proceeded to trial and it was a battle of the experts. UP contended that whatever problem Dennis had was temporary and any permanent issues were not their fault. Our key witness was one of the best pulmonary experts in California and his testimony was conclusive. Without him, we likely would not have prevailed.
Importantly, our primary damage claim was future lost wages in the amount of $600,000.00 We needed the jury to find that amount because pain and suffering just wasn’t worth much to Tulare County jurors, according to our sources. When the verdict came down, it turned out that our sources were correct. The vast amount of the verdict was the wage claim.
Know as much as you can about the Judge and the Jury. Yes, politics matters but there are moderates in both parties that value fairness overall. Our Judge in Visalia was fair and impartial. He called balls and strikes and gave us a fair trial which is essential to winning. The jury did what we expected and certainly gave a fair award for that locality.
One of my favorite scenes in the movie “Patton” is when General Patton tells General Bradley, “I have a number of flaws, but ingratitude isn’t one of them”. Gratitude is the most important part of this writing. First and foremost, though they be gone, I acknowledge my mother and father whose support, patience and inspiration made all accomplishments in my life possible. I thank my sister, Lurline Morrow, who as a witness to my life since day one has provided a focused ear through all of my travels and travails. I love you. My wonder woman of a wife Kam Morris has provided love, support and dedication through thick and thin. I will never adequately put into words how important her presence is each day. Everyone should have a partner as completely committed as Kam. Our four children are the reason I have accomplished anything. All of my love to Kylan, Kylee, Macelyn and Trip.
As trial lawyers, we spend as much time with our staff as we do our families. The following people have tolerated my childish anger, my lack of sensitivity and my petulant moments. God, I hope they forgive me. Nothing I have accomplished would have occurred without these folks. I want them to know how much I appreciate all they did to support my practice and our clients. They are, in no particular order, Sydney Morrow, Terry Brooks, Diane Findley, Jerri Stewart, Bethany Becker, Michelle Putonti, Pam McDonald, Livia DiPonia, Shane Greenberg, Barbara Sharp and my life mentor Larry Sartin.
No lawyer succeeds without colleagues to lean on. My colleagues at Provost & Umphrey were my legal family for much of my life. Some are now gone, but those still in my life and important to my continued journey are Brent Coon, Greg Thompson, Brian Ketterer, Steve Faries, Robert Giblin, Zona Jones and David Brandom. For those not mentioned, this is not an exhaustive list, though I’m sure it seems so, my sincere appreciation also goes to Kacie Torgerson, Amy Anderson and Shane Greenberg. Shane has stood by as our little start-up firm has struggled to gain traction. Thank God she doesn’t have homicidal tendencies, or I wouldn’t be typing these words. I just can’t thank you enough.