Steve Wood, Ph.D. is joined by trial attorney Jeremiah Byrne of Frost Brown Todd LLC to break down a recent case that resulted in a defense verdict. Jeremiah begins with an overview of the facts, explaining the allegations against the defendant and the damages sought by the plaintiff. He describes the mediation process, the plaintiff’s settlement demands, and why the case proceeded to trial.
Next, Steve and Jeremiah discuss jury selection strategy, including how Jeremiah identified potential pro-defense and pro-plaintiff jurors, developed voir dire questions, and approached strikes. He and Steve walk through key themes from opening statements, how the defense framed the case, and how the plaintiff attempted to appeal to jurors emotionally. Jeremiah details his approach to cross-examination, particularly how he addressed damaging testimony and undermined the plaintiff’s key witnesses. He explains the role of expert testimony in supporting the defense narrative and how his team handled unexpected developments during trial.
Lastly, Jeremiah shares how the jury reacted, the factors that he believes led to the defense win, and his client’s reaction to the verdict.
Full Episode Transcript
[0:15] Steve Welcome to the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Steve Wood. You know, we do a lot of these viewer listener mail episodes, and those are fun, but I think today’s episode and today’s topic is just one of my favorites. Today we’re going to be talking about defense verdicts in cases. And here to talk about one of his recent cases is Jeremiah Byrne from Frost Brown Todd in Louisville, Kentucky. Jeremiah, how are you? Good to see you again, man.
[0:39] Jeremiah Doing well. Great. Great to be on here. Thank you for having me, Steve.
[0:46] Steve Yeah. And you know, I want to do a deep dive today on the recent case you and I worked on, but more so hear from you because you did a lot of the heavy lifting, and you’re the one that took it to trial and ultimately got a defense verdict. But I want to kind of start at the beginning. Just talk about the case. What are kind of the general case facts? Now, I don’t want you to mention names or any of that stuff. You can mention as little or as much as you want, but just kind of give the listeners and viewers a high-level overview.
[1:17] Jeremiah Sure. So, it is a dram shop case. And for those that don’t know or don’t remember from law school, dram shop is a case where there’s been a service of alcohol to someone at a bar or restaurant, and then that person goes out and either hurts themselves or hurts somebody else. So that’s a good chunk of my practice, and we’ve got a pretty good team here at Frost Brown Todd that defends those.
So, in this particular case that was in Georgia, we have a woman who comes in to a restaurant on a Tuesday evening, and it was in the sort of middle of COVID if you think back to June of 2020, and she was getting a to-go order at this restaurant. So, she comes in, her to-go order is not ready, and she says, “Okay, I’m going to order a beer while I wait.” So, she orders one pint of a light beer, and she waits for her to-go order. And the to-go order comes, she finishes her beer, and she walks out the door. Pretty uneventful from the restaurant’s perspective.
Things change at that point. She then drives to her boyfriend’s house where she was going to spend the night. She’s also 38 years old, so it’s not as if there was a problem with the service of someone underage. She’s 38. She starts driving pretty erratically right after she leaves the restaurant. A couple of eyewitnesses see her driving erratically. At some point, going around a slight curve, she hops the curb, goes up onto the sidewalk, and hits a 13-year-old. Sorry about that.
She hits a 13-year-old kid who was weed eating, not right on the side of the road but close to the side of the road. Hits him, sends him about 20 feet in the air. Also hits his father who was cutting the grass as well, and it gives him a pretty bad break injury on his leg, and then flees the scene. Unfortunately, the 13-year-old died from his injuries. The father witnessed that and had a pretty serious break.
The driver then goes to her boyfriend’s house, which is in sort of an urban area but a remote part of this urban area, and according to her tries to kill herself with prescription pills and Fireball whiskey. Police then call, because the boyfriend calls in a suicide attempt, and the police say, “Hey, this is the car we’ve been looking for that just hit this kid.” And they arrest her.
About two hours after that, three hours after she was in the restaurant, they take her blood, and her blood alcohol level, lo and behold, is .176, which is extremely high, more than twice the legal limit. So that’s where the case came down to. Our side was she didn’t drink before. She was normal when she got into the restaurant. The other side’s case was she was hammered when she came in, and you served her this beer when she was already drunk. So that’s where the case sort of folded.
[4:40] Steve And the main allegations on it being a dram shop case, kind of what were the main allegations? And then ultimately, what was the damages that they were seeking when it went to trial?
[4:50] Jeremiah Sure. So, the main crux of the plaintiff’s case was the restaurant served this woman when she was noticeably intoxicated. That’s the standard in Georgia. And then there was a little bit of a legal issue that came up at the tail end where plaintiff said we get to apportion fault, or the jury gets to apportion fault, to the driver and to the restaurant, but regardless of what that percentage is, the restaurant has to pay the full amount. We lost that in a legal battle right before trial. So that was the sort of risk that came up towards the tail end.
Damages they were seeking in their papers, $95 million. Ultimately at trial they asked for over $47 million.
[5:44] Steve Wow. And we’ll get to that too, and I want to talk about how kind of the jurors responded to that. Obviously, we know that it ended in a defense verdict, but I’ll be curious on what the jurors thought about that request.
But I want to talk a little bit about you and I got together and did a little pre-trial research on this. So, I want you to talk a little bit about that, and then ultimately what did you learn? What did that pre-trial research help you do as far as structuring the case thematically, how to address witnesses, how you were going to talk about things in opening statements and kind of formulate the case?
[6:12] Jeremiah Sure. So, we were confident in our case. We believed that we had four things which were really strong in defense of a dram shop case. We had great surveillance video. The video of the woman coming in, going to the bar, ordering the beer, drinking the beer, walking out. It was clean, crisp, great for us. We had an excellent bartender. Sometimes in dram shop cases, in the service industry it’s sort of transient. You have ex-employees, that sort of thing, you can’t find them. She was excellent. She remembered this patron right away when she was talked to, had a consistent story, excellent witness. We had a really good manager who took responsible alcohol service seriously, excellent manager. And then maybe most importantly, we had a low drink count. We don’t have a lot of cases that we handle where there’s one beer, one light beer at that. So, we had those four things going for us.
But we didn’t know whether we were just living with the case too long and were overplaying the manager and the bartender. So, we got with you all and we decided we were going to do this mock trial. And to your all’s credit, you and Bill sort of convinced me to do something I’d never done before. I had always done the clopening format of a mock trial, and it gives you some evaluation of video evidence or video depositions and witnesses, but doesn’t give you a great impression of it.
So, we did the opening, I think it was like 20 minutes, maybe 30 minutes. Then we did 20- or 30-minute clips of witnesses, and then we did closings. So, it was a little bit different than the norm. And then you all were asking the mock jurors questions along the way for each sort of station in that mock trial.
What it really, we ended up doing the surveillance video as one of our quote unquote witnesses. And then there was dash or body cam video of this woman after the accident, which was really different than when she was in the video at the restaurant.
So, we did this and everything was confirmed. Our belief was confirmed that the video was great. Our bartender was great. I don’t know that we had a lot of confirmation of the manager, but those things were good. So, I took it as, okay, we were right. We need to play this up.
And then sort of after the mock trial, I was talking about the opening statement. We were limited to 30 minutes, and I’m trying to be brief as much as I can, but I was really uncomfortable with playing 14 minutes of video in opening. You suggested that we do it. I thought about it. I think I came back, we had another call, and I’m like, am I really going to sit there in silence for 14 minutes staring at these eight jurors in total silence because there’s no sound in the video?
And you were like, why would you not play your best evidence? And we did it. It was the most uncomfortable 14 minutes I’ve ever had in a courtroom when it happened, but it was golden. I think the silence actually played into it. Everyone, the jurors, the judge, the plaintiffs’ lawyers, they were just focused on every little aspect of this video for 14 minutes, and we kept playing it up. We didn’t hide anything. So every time plaintiffs would say, “Oh, look at this, she does this here in the video,” or one of their experts would say, “Oh, she does that or this,” we got to stand up and say, “We showed that to you at the very beginning, start to finish, without commentary.” So that was a really good, I think the mock trial convinced us that our original thought was right, but then you really helped me get over that emotional hurdle of playing 14 minutes of silence in a 30-minute opening statement.
[10:53] Steve Yeah, and that’s one of the things, right? The jurors just kept talking about that and going back to that. And at least in the mock trial, and I don’t know how it played out at trial, but they were looking at everything. They were looking for, let’s see if she does something that looks like she’s drunk. Let’s see if she spills her beer. Let’s see how she walks out. Does she stumble? All these things they were looking at, and there just wasn’t anything there. I think that’s why I thought it was very powerful.
[11:18] Jeremiah There wasn’t. And when the plaintiff’s experts sort of tried to pick something out, we were able to sort of sarcastically examine them, and they looked a little foolish with those experts.
And I don’t know if they’ve even told you this. We got a question from the jury during deliberations, and it was, “We want to see the video again.” I had thought, okay, they’re going to send the video back and they’re going to play it in their deliberations. No. The judge brings the jury back into the courtroom, and everybody sits there, the judge, the jury, all the lawyers, and in silence they play it again, another 14 minutes silent. And we could hear the jurors sort of whispering to themselves, which I think made everybody nervous because we were thinking, okay, are they looking and confirming there’s nothing? And the plaintiffs were like, are they seeing something? Here’s this or here’s that. It ramped up the nerves a little bit, but it clearly was the focal point in the jurors’ minds.
[12:24] Steve Yeah. And I think one of the other interesting things too, at least from the mock, was there were some jurors that thought, well, I can’t see anything because she’s kind of blocked by the taps, or they said maybe she went into the bathroom, because she goes to the restroom at one point, and then she goes in there, pukes, and then comes back out and has more drinks or finishes her drink, which I always think is interesting too, how jurors can take stuff and kind of run with it when they’re trying to fit it into their own narrative.
[12:49] Jeremiah They definitely did that in the mock and then in some of our questions. Three of the jurors talked with us afterwards, but they all said, look, the video was really the star of the show. Our bartender was excellent as well.
These plaintiff lawyers were very good, and they did some really excellent arguments, including one in closing that I sat back and thought to myself, man, that’s a pretty good argument. And I told the plaintiff lawyer afterwards, it was the one time in the case where I was like, a reasonable person could get to where they want them to go.
But they went at the bartender a little bit, sort of said how do you remember this one patron? And she is so nice and solid and believable, and I think it sort of hurt them a little bit because I was able to say they’re calling her a liar. Make no mistake, they’re calling this young woman a liar, and that didn’t play well with the jury.
[13:53] Steve Yeah. No, I remember she was definitely solid, and she was definitely a favorite of the jurors, which to your point we don’t always have that. That helped out.
So, you did the research, you structured, we kind of had a game plan. You and I had talked and stuff. Now as you’re going into trial, what was kind of your overall defense theme? Because I know some stuff came up in the mock that you were going to use. So, the question becomes, all right, well if she wasn’t drunk and she wasn’t severely intoxicated at the time, how the heck did she end up hitting these two individuals?
[14:30] Jeremiah We sort of flipped it going in. Originally, I thought, all right, we’re going to focus on the 14 minutes she was at the restaurant. That’s the key. One beer, 14 minutes, no signs, we’re not liable. That’s what the law says. That was the main thing.
Then going into the mock, I said, well look, let’s test whether we have to prove what happened here. Because we were worried they’re going to say, okay, alcohol caused the accident. You served her alcohol. You’re involved in this somehow, even a little bit.
So, we wanted to in the mock, I think you suggested we flip the arguments and we start with texting and driving caused the accident, and secondarily she was not intoxicated when we served her. I think it worked in the mock, but they were more focused on that 14 minutes in the restaurant and the video and the bartender. So, the mock sort of told us, okay, let’s flip it back.
[15:29] Steve Yeah.
[15:30] Jeremiah And we did, because I thought we could win even if they believed, the jurors, mock or the real jurors, we could win even if they believed she was intoxicated, if she still wasn’t noticeably intoxicated at the restaurant. So, we did flip that in the trial, but we did show that she was texting and driving. There was forensic evidence showing texts going out and coming in around the time of the accident. We caught a couple breaks with some cops who went probably a little too far with how close those texts were to the wreck. There was like a three-minute gap or three-minute range when the accident could have happened, and a couple of cops said, okay, yeah, that was right when this was happening. So, we got a little break there.
[16:21] Steve Well, I guess the good thing is, and that’s why we do the research, right, is I let you kind of test things. Because a lot of times, as we always talk about on the podcast and Bill and I always advocate, it’s just kind of coming out initially swinging and giving them alternative causation. But in this one, it sounded like, and when we found out, you had such a strong case going the other way that you didn’t really need to do that, which I know, like you said, you and I had talked about as a concern, is hey, we’re on the defense side. Do we have to prove it when ultimately you didn’t? The burden’s not on you to have to prove it. And it seemed like that’s what it showed, and then that’s ultimately how you used it going into trial.
[16:55] Jeremiah 100%. And in mocks, my philosophy is always let’s be aggressive. Let’s do what we might not do at trial to test it. And it worked well here because we found out we could be defensive, so to speak, and still win.
[17:13] Steve Yeah. So going into trial, you feel really good, but I know you and I had talked that you had some concerns before going into trial. What were your biggest concerns as you were going in, saying these things are making me a little bit nervous? Or were you at all because you felt so confident?
[17:31] Jeremiah Well, always nervous, right? It’s always nervous. Two things. One was this little legal issue that basically said that if they could find any fault on the restaurant, then we’re going to have to pay it all.
But then more broadly, I was worried that we were going to get caught up in the anger towards the driver, and that the jury was going to say, okay, they only served her one beer, but it was a beer, and she was this BAC was .176. And if you bring that back to the time of service, it was like .225, which is really intoxicated.
So, I was concerned that there was going to be anger or frustration with the driver and her malfeasance. I mean, she’s in jail. She got brought out at trial in a jumpsuit and shackles. I thought it was a little bit much with the shackles, but whatever. They did it. I wasn’t the guards or the marshals. But I was worried we were going to get caught up in that anger.
But we didn’t. There was sort of, plaintiffs sort of drew a dichotomy. They said, okay, this Fireball story after the accident, which had some holes frankly, they sort of said if that’s not true we win because she was hammered when they served her. And we kept trying to get away from that a little bit by saying, okay, she didn’t show signs and that’s what the standard is, even if she was drunk. We don’t think she was drunk, but even if she was.
They did a nice job of sort of getting that dichotomy. Either you believe the Fireball or you don’t. A little bit surprisingly, the driver played pretty decently at trial. I was surprised. She did not come across as horrible, or not a victim either. She took the appropriate amount of responsibility. So, it was alright.
[19:41] Steve I want to talk two questions really around that, and we’ll get to the Fireball story because I want to talk a little bit about the Fireball theory that everybody was so interested in.
But one of the things you and I talked about was when you said the jumpsuit, whether or not she should testify in the jumpsuit or whether she shouldn’t. And we ultimately landed on the fact that she should testify in the jumpsuit. I want you to talk a little bit about that, about why we thought it was so important for that, and what plaintiffs were ultimately trying to do by kind of linking us with the driver.
[20:14] Jeremiah Yeah. We were back and forth on that, and the judge I think was so used to criminal defendants, and they take extra precautions to make sure that they don’t appear guilty by coming in the jumpsuit.
I think we were ultimately okay with her being guilty. She was guilty. She pled guilty to reckless driving, and we ultimately were all right with that. We wanted to make sure we distanced ourselves, and I think I talked with you the weekend before the trial started about making sure we distanced ourselves and went at her quite a bit.
I had everything planned to do that, but she gave me everything politely. So, I didn’t have to impeach her. Weel, I did impeach her once, I think. But it wasn’t— I didn’t have to go hard at her because she was really, she had read her deposition. I didn’t think she had. She knew everything. So, if I was a little bit off, she would correct me with my question and say what she said in the deposition. So, she played all right.
[21:33] Steve You know, and I think one of the things that’s just knowing you, that’s a testament kind of more of your personality, that I think a lot of times defense attorneys think they have to go at witnesses hard. They have to have the theatrics. They have to really beat up on a witness and go in for the kill and then ultimately crush them. It didn’t sound like you needed to do that here or thought it was appropriate.
[21:50] Jeremiah No. One, it’s not my style. It’s not my personality, so it would be hard. My style in trial is I’m fairly calm. I’m fairly polite, even with witnesses who are being jerks. I think the jury appreciates that. And then if I have to get angry, it’s not really angry. I sort of get sarcastic more than anything else. That’s sort of my personality. The jury perks up. They’re like, oh gosh, that guy’s been quiet for four days and now he’s sort of poking fun at this person, which is sort of the way I’ll handle people who are being jerks.
[22:34] Steve Yeah. So, let’s go back. Let’s talk about the Fireball theory. Talk a little bit about the Fireball story and then ultimately how it played out at trial. And if the jurors, when you had an opportunity to talk to them, we’ll kind of save all of the thoughts there. But did they mention anything about the Fireball when you talked to them about how they integrated that into their thought process?
[22:52] Jeremiah Sure. So, first of all, Fireball is a terrible use of whiskey. I’m from Kentucky. We don’t use whiskey that way. It should be bourbon and not cinnamon shot shooters. It’s just an abomination in my personal opinion.
But Fireball, I think at the end of the day it was a focal point, especially of the plaintiff’s case. So, we got into toxicologists and how much Fireball, and there was a lot of math. And I’ve got a close friend of mine who’s tried a lot of cases with me who’s a math major, and I’m like anytime you’re talking math just shut it down. No one listens. It’s difficult. And he always jokes at me it’s just because I don’t understand the math, which is both true. Both those are true.
But we got into how many milliliters, how could she have gotten to this BAC? And the way it played out is when you’re calculating blood alcohol content with these toxicologists and you don’t have a blood test or a breathalyzer, really a blood test, but even a breathalyzer gives you some data, it’s a lot of estimations—and you’re taking a lot of ranges. So, the math is not precise, and lawyers can sort of fit in things. So, plaintiffs were able to say, “Okay, her story about how much Fireball doesn’t get her to .176. So, she had to have had more alcohol before she walked in.”
And our thought was we also got them to say, “Close. Maybe almost got you there.” So, it sort of neutralized the Fireball by the toxicologist and the science itself. Ultimately, it didn’t matter to the jurors. They were looking at what happened in that 14 minutes at the restaurant, and after that really didn’t matter.
[24:46] Steve Interesting. So, let’s talk damages now, too. You had talked about how the plaintiffs were asking for a significant amount of money. How did that play out in openings with them asking? And then did you counter-anchor? How did you address damages throughout the case?
[25:06] Jeremiah Well, the law in Georgia helped us a bit. There’s a new tort reform um law in Georgia, new meaning like within the last six, eight months, that was signed and it prohibits a lot of the anchoring. I mean, it’s—the statute is obviously uh talking about anchoring. So, they were not able to say it in voir dire. They were not able to say it in opening. Um, then we got into an argument about whether they could do it in closing, whether they could. So, they didn’t anchor in opening or voir dire. I didn’t counter-anchor. Um, then it came up well to closing. We had a motion pending saying uh in Georgia they could split their closing. They could do closing and then a rebuttal and it can be they got an hour. They could split it 30 minutes, 30 minutes or whatever. But if they—if they’re going to anchor, they have to anchor in the first part so that we can counter anchor.
Well, they didn’t. They did—they did all liability in the first part. And we made a motion coming back, I think. Then—then I—then I um then I gave my closing and um I did say like I did in the mock trial something to the effect of, “Here’s, I’m going to talk a little bit about damages. I wouldn’t have said anything if they had asked for—if they’re asking for like a million or two.” And then I moved on to talk the couple of damage categories that—that—that we had some critiques on.
We—we got a few damage categories uh thrown out on directed verdict. So, um, it was a little bit narrowed and uh so I just threw it in like that. Very subtle that one, two. Hey, I wouldn’t have said anything if it wasn’t higher than one or $2 million. Then we go to lunch. We come back and we argue they can’t talk damages at all because they didn’t talk about it before. Plaintiffs were panicked. Judge—um, I shouldn’t say that. They appeared panicked to me. The judge goes back to read something, comes back and says, “Nope, I’m going to let them do it.” So, it ultimately, they got to do everything they wanted to do. Uh, and they did have a big number. They did. So, I—it was really brilliant in my mind from the plaintiffs’ counsel. Sort of something I hadn’t really thought of. They said, “All right, .176 was our BAC. The one light beer was point—gave it like 0.025 to the—to the 0.176. So that’s about 8%. So just put 8% on the restaurant and put the rest on the driver knowing that we were going to have to pay all of it. Right?”
So, I thought to myself, if there’s someone on the edge in this case and the jury, that would be a reasonable argument to me. I mean, I was—I sort of sat there. I was like, that’s—that’s pretty creative. I like that.
[28:01] Steve We give plaintiff attorneys a lot of grief, but there’s some good ones out there that are very good on their feet.
[28:05] Jeremiah These were—they were excellent. They—they really were. And—and you know, it’s sort of our—the way we try cases and the way we handle cases is uh we get along with—with opposing counsel nine times out of 10. And if we don’t, that 10th time is because the—the—the plaintiff lawyer doesn’t want to get along with us and then and it’s affirmatively trying to make it uh adversarial. So yeah.
[28:29] Steve So yeah. So, I guess when did you have—did you see a sense in the trial where you kind of knew the tides had shifted and you thought we have a pretty good chance of winning this, or were you basically nervous all the way up until the end?
[28:44] Jeremiah We—we—we felt pretty—in my mind the emotions of—of trial sort of starts off it’s—you get opening and you’re so prepared for that that it goes according to plan usually, and then the plaintiff’s case starts and you’re just taking hit after hit after hit. Um, and then it sort of turns when you get to sort of their experts and you score some points and then you get to your case and it’s you’re back to—to equal.
We started off pretty strong. The—our—or their first witness was our bartender and um and she did a really good job even though they scored some points with their—but they were calling her a liar, which is not ultimately not a great thing. Then our manager got on next. So, this is like day three and he killed it. He—he killed—he was our corporate rep. He had been there the whole time. Um, super sophisticated uh very—very uh longtime employee of—of—of this restaurant chain um and did a great job. I think at that point we had them on the run. After that they were—they were struggling ’cause you know, experts at trial I always think they’re great, but the other side gets a couple of points so it’s never a whitewash. Uh, but I—I think our manager’s testimony probably was—was the point where I thought, “Okay, now we’ve got them. We’re going downhill now.”
[30:08] Steve Excellent. You know, I think one of the other things you and I had talked about—I know that was probably a difficult moment for you—was you had the parents get on the stand and then it was like, okay, how hard do I go after the parents? And then also, do I show some sympathy? Do I show some empathy? Talk a little bit about how you handled that and how you felt doing it and how it kind of played out.
[30:30] Jeremiah We—we—we took—I think we talked by email a couple times that the week of the trial. So, they were going on on the Friday of the first week of trial. Um, and it was—it was mom, dad, um friend who was there witnessing the—the accident, three or four aunts, right? Um, and we had a couple of points to score with the father, mostly on income, his income, whether it was this amount and a couple of other things, not that big a deal. You know, if—if we had—if this was a case where we thought it was a purely damages case, okay, we’re going to ask him about his income.
So, we went back and forth and and um I think we—you were like, “Well, if you’re going to score points, be polite. Maybe you express sympathy, maybe you don’t.” Um, so I didn’t express any sympathy towards the family in—in voir dire or opening. Then we get to their testimony and final—the decision was we weren’t going to ask him anything. Um, it—it was the—the father’s story is a dramatic story. It was—he was—I mean horrible situation here. The kid is hit. The father is army crawling to his kid who’s dying. I mean, it’s just a—a—a horrible dramatic story. And we all thought in our group, there’s no way we can get up and ask him about what he filed in taxes in—in—in 2019. We just can’t do it. It—it—it—it even if it would score points, it’s not—it’s going to—not—it’s not going to work.
So, um, Nate Fowler, my partner, young partner who was trying his first case with me, and he was—did a great job. Um, he was in—he was in charge of that. Every single witness for an entire afternoon, really a whole day, we stood up and said, “No questions. No questions.” And every juror that we talked to really appreciated that because no one denied it was a—it was a terrible situation. Um, so that played well. It was the right call. I appreciate you sort of talking me back from scoring points on tax returns. And then in closing at the very beginning, um I started with, “Why is—why is the restaurant here? Why are we here?” Um, and then I hit in—this is no doubt that it’s a sad story. This is a terrible thing. Nobody here is—is saying they have not gone through a lot, but why is—is—is this restaurant here? Um, and that worked well. That worked well.
[33:08] Steve Yeah. I think that goes back to what I’ve always preached is about being genuine, you know? And that sometimes if you would have got up there and—and got the parents on the stand and the first thing you would have said is, “Oh, I just want to let you know how sorry we are and stuff.” I mean, I’ve seen that backfire and it almost seems disingenuous. And that was my concern that you and I had talked about is I didn’t want you to see disingenuous—that you were trying to score points or like manipulate the jurors by doing something like that. So, I’m glad that it turned out that way. And shout outs to Nate, who is, like you said, a young—young attorney, but he’s sharp.
[33:39] Jeremiah Uh, Nate—Nate—Nate did great. This was Nate had been at trial with me before. This was the first time he had been taking witnesses um sitting second chair. And it was sort of funny. We—I did—I did voir dire the first day, I did opening, I did the bartender, I did the manager. So, now it’s day three, 1:00 in the afternoon. And um it’s—it’s an eyewitness who saw the woman driving—so completely um you know no dog in the fight and she was really nice woman, really nervous. They give their direct.
Nate gets up—first time he stands up—and I can tell all the jurors like, “Oh, he’s going to say something.” And he gets up—he gets up there and he says, uh, “Thank you for being here. I’ve only got two or three hours worth of questions.” And the entire courtroom erupted in laughter and the woman—the—the—the witness sort of relaxed a little bit and the judge was like, “You better not be serious.” And I—and I told him after, I said, “You know that was—you know, it’s—it’s really difficult in a courtroom to use a little humor. Um, you did it and it worked.” I said, “I’m glad it worked.” But uh but he—he really showed his own personality in—in the—in the w—first witness he had. So, he did a great job.
[34:55] Steve Excellent job. That’s awesome. So, you know, you finish, you get a defense verdict and then you said you had an opportunity to—to talk to the jurors. Kind of walk us through: what were the questions you asked? What was the information that you got? And then how did you feel? Did it match up to what you thought? And then was it—kind of give you an insight as far as how to handle future cases? What was kind of the overall feel from that?
[35:15] Jeremiah It—it—it did. I always—I always have someone else ask the questions. I—I don’t feel they tell you the truth to your face. So, whether it’s good or bad. So, um we didn’t know how this judge was going to do it. The judge announced after the verdict, “Anybody who wants to stay, I’ll let them stay and then you can send people back to talk to them.” So, I sent our local counsel, Jay O’Brien, who did a great job at the trial as well. He went back and he asked a number of questions and the key things were just what we thought. It was the video really—the video number one um that—that sealed the case early on. I think all the people said—even the couple people that needed to be convinced—needed to be convinced there was nothing in the video, not that there was something else. So that—that—that was key.
Um, we got that they really appreciated some of our visuals that we used throughout the trial or timelines. We had a clear timeline of this woman’s day before she went to the restaurant. It was packed. It was busy. There was lots of witnesses who saw her and—and talked to her and didn’t notice anything, and—and that worked really well. They appreciated that. And then at closing, I got to stand up there and show that timeline with a huge red mark around it saying, “They got nothing. This is a hole in their case. They lose because they haven’t shown her drinking.”
And um and just to show our—our team sort of concept that—that idea of—of that—that hole uh in their case came from our trial tech, Lewis Bowman, who I think is the best trial tech on earth. Uh, he doesn’t just sit there and run PowerPoint and—and—and—and trial director. He is actively involved. He gives me when I’m prepping for closing—he gives me a four-page single-spaced rundown of his points I think he thinks I should make. And it’s very valuable.
And uh I called it a gaping hole in their—in their case. And the trial team sort of made fun of me. I’m like, “I thought that’s what he said.” He goes, “No, I said a hole. Look at—look at the thing.” I called this gaping hole, but this big red circle in the PowerPoint that said they’ve got nothing here. Uh, and it worked—worked really well. They love the visuals and then they really liked our bartender and manager. Um, they didn’t—I don’t—I don’t know if we didn’t ask because I wasn’t back there or—or um they didn’t offer it. They weren’t really offended or didn’t say they were offended by the big ask, the big number. Um, so I thought that—that—that was appropriate. They—they tied it pretty well to—to some uh you know, they did the days thing. You know, “This are—this—it’s worth this per day to have your kid.” And there’s like million-dollar days. I thought that was pretty cool, too. They’re talking about weddings and birthdays and anniversaries. Those are million-dollar days or sometimes it’s just, you know, going to, you know, the park with your kid is a million-dollar day. So, I thought it was pretty—pretty well done from the plaintiff side.
[38:26] Steve Well, it sounds like they were reasonable. You said the ultimately the ask was 45 million. Is that what you said at trial?
[38:31] Jeremiah It’s over 47. Somewhere around 47.
[38:32] Steve All right. Yeah. I mean, I think though for—for a death case and in a severe injury case, it seemed like though that was part of one of the things that sounded like plaintiffs were pretty reasonable because how many times have you and I heard where they’re asking for 150 million? Uh, so my guess is they probably tested that number, had a general idea of kind of what would be offensive and what wouldn’t be?
[38:50] Jeremiah It seemed like it. It seemed like it and and I think because they couldn’t anchor at the beginning, they probably, you know, if they would have been able to, they probably would have thrown that $95 million number out there and then in closing said, “Hey, the evidence only showed 47.” So that’s what we’re asking to see, “Oh, look at us. We’re so reasonable.” Um, so but they couldn’t do that. So, they—it was—it was a good—I thought they played the damages pretty well.
[39:13] Steve Yeah. So, you know, it sounded like it turned out well, but you know, I’m sure along the way there were some hiccups. So, there are some things maybe if you look back and thought, “You know what, maybe I would do that different.” Did you have any of those types of moments?
[39:26] Jeremiah But you always—you always do. There’s—there’s times where you—experts I think are—it happens more often with experts. I’ll be standing up there and I’ve asked a question that was too open-ended and they’re droning on and on and on about whatever. And sometimes—sometimes it’s good stuff and I’m like, “I can’t—I can’t—I can’t do anything here. I just have to let this person go.” Um, so you make a couple mistakes like that.
You know, oftentimes though, some—some experts overplay that and they keep repeating it. So, then you get to ask a question that’s not that answer and they’re giving that and you can sort of lay back and look at the jury like, “How are you doing? How many times you going to say this? We all know that.” Um, so m—maybe—maybe those little things. Um, I don’t know. I mean, it’s all—it’s all a—a whirlwind because you’re—you’re starting early and going late. Um, we do a team. My paralegal, Joanna Flanagan, she sets up these war rooms that are the most impressive things that I’ve ever seen. It’s, you know, it’s double monitors for every single person. We’re all in the same room uh when we’re working at the night before trial or—or—or if we have a day off like the weekend. Um, and it really helps I think bring us together and—and so we’re—we’re all there working even though we’re working on different witnesses, but we’re talking, “Okay, if I ask this, Nate, is that going to put you in a bind with this police officer?” He’s like, “No, I think you can do that but don’t do this,” and then he’ll do the same thing. “Hey, are you asking the expert about what this police officer says on the body cam? No, I hadn’t planned it. Well, you should because I’ve got that.”
And it makes our presentation at trial a little bit more symmetrical. Whereas I—I can tell on the other sides where they’re working in their separate offices and it’s a little bit disjointed. Um, so that—that sort of war room mentality and we’ve got the client there. We—we come back from—from trial and there’s like an hour where we’re debriefing that day with the client, with the client’s counsel. I mean, in-house counsel was there. Um, and everybody’s got a say and—and we get some really good—good—good work out of that. Plus, we got snacks that Joanna always gets our snacks that we want. So, it’s great.
[41:51] Steve Yeah. I mean, and that—long days, snacks, you’re—you’re not eating that great, probably not sleeping that great. So, is there anything that you do to kind of keep mentally sharp um to try to kind of keep your wits about you as you go through a long arduous trial?
[42:07] Jeremiah Well, I sleep. So, so one of the things—I—I will work until about 1:00 in the morning. That’s my absolute end. A lot of times it’s midnight and then I’m up at 6. Sometimes if I’m not sleeping well, it’s—it’s I’m—I’m up at 5. But I need to get that sleep because I am not, you know, mentally prepared enough if I don’t get that sleep. So, I’m always focused on that.
Now, that takes lots of preparation before the trial and the weeks before the trial in the weekends between trial weeks to make sure that—that I can do that. But there’s to me the most pressure is making sure that I am done with my closing PowerPoint um you know the whole thing the way I’m going to say it by 11 p.m. and then I get two hours in my room going over how I’m going to present it, but I’m asleep at 1:00 lights out. So that—that’s one thing that—that I’ve always done.
I had a—had a—a client years ago in a trial. Um, and you know clients are great at trial, but clients have a lot of pressure on them and—and they are putting a lot of pressure on you and we enjoy it. That’s what we get paid to do and—and it’s sort of part of what I like about trial work. Um, but sometimes the pressure in the moment is not the thing I need. Uh, but I had this one client back years ago like 2015. Every time she would leave us, she would say, “Make sure you get some sleep tonight, Jeremiah.” Never, “Hey, make sure that you have this expert ready for tomorrow.” It was always, “Make sure you get some sleep.” Um, and I’ve always taken that to heart. So, I always did.
[43:50] Steve Yeah. And I know like you said, you had—had Nate who’s—who’s great and then I know a lot of our listeners and viewers are, you know, associates or, you know, new partners, kind of younger in the profession and stuff. What kind of words of advice do you have from them kind of using your trial experience—what you learned from this trial as far as things? I mean, you’ve given us a lot, you dropped a lot of nuggets on us throughout this thing, but if you had to—can kind of give a few things of advice, what would it be?
[44:15] Jeremiah Well, one, the—the team approach is key and everybody has a role and everybody need—both from the person running the team needs to make sure everybody feels comfortable sharing their opinions and offering their opinions, but then also all the members of the team feels comfortable giving those opinions and—and—and sharing those opinions.
So, we had, you know, Andrew Palmer, a partner of mine, worked the case up through a large part of the discovery. Um, and he had, you know, then—then Nate and I tried the case. Andrew from the office would say, “Hey, how about this? How about that?” Clearly something he—he—he was always part of the team bringing that up. Nate always give those opinions. Always gave those opinions. Never felt um uh intimidated or anything like that.
Um, but from—from actually in trial and—and presenting it, one is to make sure you—you—you be yourself. Nate and I are not um the same type of person. And he didn’t try to just sort of be like I was being. He had his own personality. He would um you go through the witnesses. He—he—he would thank every single witness who wasn’t a party for being there. It’s just not something I ever think about doing. It’s probably pretty good. I think it played really well, but it was really genuine the way he did it. Uh, but just sort of—sort of be yourself and then overprepare. I mean, we’re—we’re a preparation firm, so you know, I—I—I he would give me his outlines the week before trial. And I would go over them and I’d say, “Okay, this, this, and this.” And he would then go back and—and change it. And we’re tweaking constantly, mostly taking things out because we’re trying to be brief and bold and be done um like you all told us to be. Um, but—but—but overpreparing or the—is—is something we always do.
[46:08] Steve Yeah. No, it sounds like it definitely works. So I mean like you said, teamwork approach and then having the—the younger attorneys feel comfortable to ask the senior associates or the senior attorneys kind of questions and that the senior attorneys are also integrating the younger associates into the decision-making versus kind of, “I’m the one who’s going to make the final decision. Kind of this is the way it’s going to be. You don’t provide any feedback, or if you do, I’m not going to take it.”
[46:31] Jeremiah It would—it would be foolhardy to do it that way. Right. I mean, in—you know to me, we get the best product when—when—when the product is the—the uh work of everybody um and we present the best. And if I was dictating how Nate was going to examine a witness and he didn’t believe that was the right way, it wouldn’t come across the jury the right way. So, it’s sort of a give—a give and take.
[47:01] Steve Yeah. And then I guess the other thing too is kind of giving him an opportunity to be on his feet too, right? I mean, he got a piece of the mock trial, then he got a piece of the real trial. I think that’s another thing too is a lot of times we see where the—the younger attorneys, although it’s getting better. I’m not going to say that—we’re definitely seeing a shift, I think, in the defense bar where I talk with a lot of attorneys where they’re doing mock trials and they’re like, “Hey, you know what? I want one of my associates to get up there. I want one of my younger attorneys to have a piece in it so they can get their experience.” What are your thoughts on that, too?
[47:28] Jeremiah It—it’s—it’s hard. We’ve all got pressures in—in—in—again with clients that—that are saying, “Okay, why would we not have the most experienced lawyers doing this? This is a big trial.” Um, and—and it has a lot to do with—with them. I mean, these—these clients, the in-house counsel, they’re—they have a boss, right? And—and if this goes bad, they want to be able to say it was the most two senior people. Uh, in this case, one, we’ve got—we had a great client who—who was willing to sign off on my recommendation that it be Nate uh to try the case with me and um they signed off on it, believed in Nate.
Sort of helped that Nate had been in-house with that client for uh a year where he was working like two days a week with them. So, they knew him really well. Uh, he wasn’t a stranger. He—he’s been working for on their cases for, you know, close to a decade, right? So, it’s not as if he was a brand-new person right off, but it was his first trial and they knew it and—and they signed off on it. And so, you got to take that chance. You don’t get the experience without getting the experience.
[48:40] Steve Yeah. All right. All right. So now my last most important question for you: Kentucky. What’s—what’s—what’s the sports—what’s the sports environment look like for this year?
[48:54] Jeremiah So that is the most important question. Um, so football is—is—is looks bleak, but usually when Kentucky football looks bleakest, then they’ll—they’ll run off six, seven wins. So, I’m hoping that we—we think so little of our football team this year that we’re gonna run off six or seven wins and—and beat one or two teams we shouldn’t. But basketball is all that matters, right?
[49:19] Steve Yeah. And I was just going to say so, but let’s really—let’s cut through it. Like, basketball is all that really matters, though.
[49:26] Jeremiah Basketball is all that matters. Um, Mark Pope, who—who I graduated with, we were—we were right next to each other at UK. Um, and we threw our hats up and we shared an embrace. I don’t know if I’ve told you this story.
[49:38] Steve You’ve never told me that.
[49:39] Jeremiah Yes. So, so he was right in front of me. He had just won the national championship in ’96. I was graduating. We throw our hats up and everybody’s hugging and I hug him and then I saw him like last year at some sort of lunch and meet and greet and I told him the story. I’m like, “You probably don’t remember this.” And he’s like, “I don’t remember that.” He said, “But I’m so glad you told me that story.” He’s—he’s really—he’s a really sort of a man of the people. Um, I had some doubts. I had some doubts about him and him being ready, but he did a nice job last year and he’s got a good—a good team. So, I expect us to win the national championship and not lose any games.
[50:18] Steve There you go. I—I’ll definitely—you and I will be chatting as the March Madness goes through. Hopefully it’ll turn out better this year than it did last year.
[50:28] Jeremiah Yeah. I think—I think we play Michigan State. I think in the—in the Champions Classic this year, it’s Michigan State. I’m—I’m certain of it. So, that’ll be—
[50:35] Steve Yeah. Well, there’s definitely be some uh trash talking going back and forth. We’re hopefully Michigan State will look good this year. Uh, we’re retooling and hopefully we’ll come back and we’ve kept Izzo, which is good. Everybody wants to keep stealing him, but he’s too loyal to the university, which I think just endears him even more that—I mean, this guy could run for mayor of East Lansing and win by a landslide.
[50:56] Jeremiah Oh, I see. I’m sure.
[50:57] Steve But you know, speaking of how Mark Pope’s a man of the people, you are also a man of the people. So, if people want to get a hold of you, if anybody wants to talk to you more, pick your brain anymore, how do they get a hold of you? How do they reach out to you?
[51:10] Jeremiah Sure. I mean, it’s probably—email is probably the best way. Um, it’s jbyrne@fbtlaw.com. That’s probably the best way.
[51:24] Steve All right. Well, Jeremiah, it’s good to see you, man. I love talking to you and picking your brain on things. Uh, so I’m going to let you head out, but for those of you, thanks for—for listening. Thanks for watching on YouTube and all your other kind of podcast platforms. Feel free to like, subscribe, leave us a review. We always are interested in hearing what you think. And join us again on another edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences.
Be confident in achieving superior litigation outcomes. CSI has the expertise, track record, and capabilities to help you win.
