Jim Pattillo & Todd Weston, Partners with Christian & Small, join Bill Kanasky, Jr., Ph.D. to talk about a range of topics on managing a law firm and managing litigation. The group discuss how to get younger attorneys trial experience, particularly when fewer and fewer cases are going to trial, how to manage stress, work/life balance, and healthy lifestyles while still growing a profitable firm, thoughts around voir dire, mistakes they have made while practicing law and the lessons learned, witness preparation, and more.
Full Episode Transcript
[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. I am Dr. Bill Kanasky. Two special guests with me today. Um, you all know uh Jim Pattillo and we also have uh Todd Weston from the law firm of Christian & Small in Birmingham, Alabama. Uh, gentlemen, how are we doing today?
[00:34] Todd Doing good, Bill. Thanks for having me on. Roll Tide.
[00:40] Jim Appreciate you having us. I have to say go Gators, but wow.
[00:46] Bill We—Yeah, it’s a—it’s a—Listen, Roll—Roll Tide came out in the first four seconds of this podcast and he’s—if you’re watching on YouTube, he’s—he’s got Todd’s got the Bama uh gear on. Jim uh was on a couple months ago. We had a great episode with him. Todd, tell us just uh for our audience, tell us a little bit about yourself, how long you’ve been with the firm, what types of cases uh you work on.
[01:04] Todd Sure. And and Dr. Bill, thanks for having me on, man. been follow for a while. It’s—it’s—it’s really cool to be on this. I know Jim had a good time with you last time. Um yeah, again, my name is Todd Weston. Um I’m a trial attorney, senior partner here at Christian Small. Uh we’re in our main office of Birmingham, Alabama. We got an office in Mississippi as well as down in Mobile, but we serve our clients on the Gulf Coast. Uh I primarily serve the insurance industry uh almost across all different lines of defense. Um, I dabble in coverage. Uh, do some employment work. Um, have a couple institutional clients as well, manage a pretty, uh, decent sized team with some pretty good litigators, trial lawyers themselves. I’ve been with the firm for just over six years. Um, I hailed here from Chicago. I moved down here 10 years ago. Um, following my wife. I was one of the few Yankees who was lucky enough to marry a southern girl. So, that’s how I ended up down here.
And I’m grateful every day that I got a chance to work at Christian Small. I’ve worked at big firms. I’ve worked at small firms. I’ve worked at mid-size firms. I was at a very big firm right prior to joining Christian Small. Um we’re in a really sweet spot where we can really serve our clients with local knowledge and expertise. And I love everything talking about litigation. Um it’s my lifeblood. It’s what I do. It’s what I’ve dedicated my career to. Um, so this right here is like my heroin.
[02:38] Bill Outstanding. Um, and how just about how many attorneys do you all have?
[02:43] Todd Jim might have a better use because we’re kind of a moving target with our—with our growth.
[02:50] Jim Yeah, we’re—we’re in the 40s now. The stat I always like to—to tout is when I got here in a little after 2018, probably 2020, we were at two or three associates and now we’re pushing I think 15 now starting 2026.
[03:10] Bill Excellent. Well, I’ve worked with your firm for many years. uh great people, very very talented uh attorneys and uh love coming to Birmingham to—to see your—I love your Birmingham office, by the way. It’s—it’s gorge—gorgeous office.
[03:21] Todd Well, come on up again. We’d love to see you.
[03:28] Bill I—I need to—I need to um maybe—maybe this spring.
[03:34] Todd Let’s go.
[03:34] Bill Maybe this spring. All right, let’s jump—Let’s jump into some really uh key topics here. And I think these topics are really uh apply to um any attorney at any law firm probably uh mostly defense but some really I think it’s really goes across the board. So um you know in today’s environment right in litigation uh we all know um so many cases settle um there’s not a—a lot of trials say like there was you know 20 or 30 years ago. Um you got the whole concept of um uh litigation and financing, right? You got a—you got a bunch of things going on and uh we have a—we have a lot of younger attorneys. Uh Todd, how does—how does your firm approach getting the—the younger generation of attorneys the type of you know trial experience uh necessary that maybe was easier for people in the past to get because you kind of—Yeah. you jumped right in. There was a lot of trials. you kind of grew faster, you developed faster. Now, I would argue from what I’ve heard from many firms that growth is slower because there’s—there’s less trials. How—how has your firm spec—specifically handled that challenge?
[04:42] Todd Well, it—it’s definitely a challenge in today’s modern litigation environment, right? Um see less and less cases just go to trial and that’s partially because, you know, risk tolerances with carriers especially, they—they’ll change it. It’s kind of cyclical. Sometimes they go up, sometimes they go down. But the days of, you know, trying 10 plus cases a year, like some of our like more—more senior trial partners here at the firm, some folks have 200 trials under their belt. Those days are over unless you’re doing like strictly personal lines. But even then, the carriers have gotten more sophisticated with their defense council and evaluating cases and evaluating the exposure and—and their appetites for risk. Um, not to mention it’s way more expensive to go to trial. You know, you when you factor in experts, attorney time, all the other expenses,
[05:37] Bill Those damn jury consultants, those witness prep experts, they’re a total pain in the ass.
[05:43] Jim They’re worth every penny though. [laughter]
[05:48] Todd Yeah. Like the premium consultants and—and we’re also facing way more exposure. Um, we’ve seen recently at trial like I—you don’t need to go over like nuclear verdicts or reptile theory, but it’s a real thing and—and then verdicts are getting bigger as juries, they don’t seem to fully recognize the value of the dollar like what you thought they used to. Um, so one way that we’re—we’re working on it and—and this is a—this is a problem across the board with litigation firms, especially defense firms. You know, we have smaller claims. We have, you know, we like most jurisdictions and including Alabama, we have what we call a district court, which caps your jurisdictional limit at—at 20,000. Now, typically it’s going to be a bench trial. Your exposure is capped right there. Okay? And so, when you’re putting in a new attorney, um, you obviously want them to succeed and—and you’re going to put them in the right position to succeed. You know, prepare, prepare, prepare, master your file, know your case. But we’re also in the business of expecting the worst outcome or at least planning for the worst outcome. So, when you’ve capped that exposure and you can put an associate in there, which—which you’ve obviously prepped and have them ready for that, that is invaluable experience um to go up there, stand on your feet and go to the trial.
And especially here in Alabama with our district court cases, there’s no unless you get leave of court in very unusual circumstances, there’s no formal discovery. You’re bringing your documents, you’re bringing your client, you’re going to trial, kind of like how trials used to be way back in the day. So, you’re just constantly thinking on your feet. Um, you’re going to have to—you’re going to have to cross-examine a plaintiff you’ve never seen before, you’ve never spoken before, you don’t really know much about. Um, so that’s one way we’re doing it. I—I think another way is um and—and—and in today’s day and age where you’re constantly focused on the billable hour and you don’t want to lose that billable time. Maybe when there’s other partners at your trial that are—that are—that are in trial, grant those associates or younger attorneys a day or two to go and observe and watch because trying a case is kind of like riding a bike where you can’t do it and you don’t know how to do it until you do it, right? It’s—it—you can prepare and learn up and down about how to do it, but until you step into that galley and you’re talking to a jury and—and you don’t know what voir dire is like you’ve never seen voir dire done before, you’ve never seen um pre-trial motions, you’ve never seen jury instructions and all the things that go into a trial. Let them come in and observe it.
And then the other thing and I like to do and in today’s day and age when you know we’ve done a good job at our firm of retaining associates but if you have associates for a long period of time you want them to be on a file for the entire life cycle and when we get the assignment all the way through to trial and then even to the post-trial motions and appeal everything comes together and you can actually see you know why you’re putting those affirmative defenses in your answer why you’re answering discovery in one way and then why you’re narrowing down all the deposition transcripts and testimony just to those simple admissions that really kind of go towards your case. So, you know, there’s no silver bullet on how to get more experience because again clients are going to want the most experienced folks in at trial. They’re paying a lot of money. There’s a lot of risk.
[09:16] Bill Yeah, Jim. So, so Jim, talk to us about because I think it’s a challenge with everybody. I’ve heard this for the last 20 years is, you know, I want to get my younger people more involved, but sometimes there’s some client push back on that. Um, but they have to be involved to grow. So, it’s like, right, it’s just this double—
[09:32] Todd It’s understandable push back from the client, by the way, because they’re putting money on the table.
[09:36] Bill Yeah. Money. So, so Jim, how—h—how do you—how do you talk to your client to convince them that while it may—it may cost some more money, it—it’s really a win-win in the long term for future cases for your client?
[09:48] Jim Yeah. Well, the hardest thing for a younger lawyer is to just get used to standing up in front of a group of people and getting their mouth moving and articulating a point, an argument, articulating facts. So, there’s lots of ways they can do that. Um, you know, we’ve got a couple of good trial academies, deposition boot camps that we send all our associates to. Um, you know, so that when they’ve—they’ve been through those and they’ve sat through a trial, a second chair, that first time where they—they—they get to even just dip their toe in the water and do voir dire or do opening. Um, it’s not quite as daunting. But with—with clients, getting them to—to buy into that, I think you’ve got to have um the right kind of client who’s willing to do that. You’ve got to have um you know, we—we have some uh a few clients who send us cases where they expect a younger lawyer to—to run the file, so you can easily work them in. Um so, you really got to have a portfolio of business that allows that. And um some of those more typical volume insurance defense cases um we don’t—you know we don’t go after that work but we do get calls on them on occasion and they’re—they’re good—good associate works—good opportunities to mentor them and bring them along and um you know and what real trial work looks like if—and I think this is the implied point that I will state if we don’t do that in 20 years the defense bar is not going to have lawyers who know how to try cases and things will get worse if they don’t do that.
[11:26] Bill Yeah, I think the clock’s ticking on that a little bit faster, actually.
[11:33] Jim Yeah, I might—I might be too uh too big in my estimate.
[11:40] Bill Now, Jim, um let’s talk about the um what we’ll call the false dichotomy between work life balance, being healthy, and also being profitable and productive at—at the same time. And listen, I’m—I’m gonna bring up something no one wants to—to talk about. It comes out like once a year and everybody posts on LinkedIn about, “Oh yeah, this is true. This is true.” And then 364 days go by, they don’t talk about it. Um being a trial attorney, um is not the healthiest of—of lifestyles. Um and um you know you have uh if you—I think the—the American Psychological Association again once a year kind of releases their stats on you know the frequency of depression, anxiety, suicide you know amongst trial. It’s—it’s very disturbing stuff. Substance abuse right? Uh it’s a very—it’s a very stressful um uh injury. Uh uh uh—it’s a very—it’s a very um serious topic and um I—I’ve seen some law firms um be very proactive um w—with—with—with their attorneys to promote healthy lifestyles, work life balance, right? Things like that. I’ve seen the exact opposite where it’s just a—just a meat grinder, right? Um how does your firm address those issues? Because I’m assuming I really truly think this a—a—a mentally and physically healthy attorney is—is a better attorney.
[13:02] Jim Yeah, 100%. Um this is an interesting topic you asked me about because I did listen to another podcast on the way in this morning uh interviewing a lawyer who had—had built a firm from a solo practice. Uh he—he referred to it as having 10xed his practice. I didn’t know if he was listening to a Grant Cardone seminar or something like that, but he referred to 10xing his practice. Because he focused on work life balance and not over profits. And I—I just got to get on my soap box about this because I don’t think it’s an either/or thing. It is a both/and. Um, we want to have excellent attorneys who are—who are healthy and who are well compensated and we want to be an attractive firm for lateral partners who can see they can be well compensated um and do it in a healthy way. So I—I think if you—you’re forcing yourself to choose between either work life balance or profitability, you really don’t end up achieving either of those goals because uh you know if we’re—if we’re leaving the office at 4:30 because um and on occasion that happens. We have families, we have kids, we have stuff we need to do and that’s important and we support that. Um but if that means we’re uh ultimately not working as hard over the course of a year um then—then we’re not able to pay associates as much. We’re not able to um provide the support that need—a firm needs to be healthy. So I really think um we’ve created a culture and environment in our office where people enjoy coming to work. They enjoy working with each other. They enjoy uh having the flexibility when things come up um to be at a—a kid’s game or if you have an illness or if you have uh anything like that. We’re supportive of that. But we also recognize we have a huge uh a—obligation to our clients to be available uh and to work hard for them and b—to also support the goal of—of running a law firm that provides excellent service and does it with excellent lawyers. And that is hard work and we don’t need to run away from that. The reward from that—for that is, you know, we run a profitable insurer and we’re able to do uh do things that firms that don’t work as hard aren’t able to do.
[15:25] Bill And I’m assuming that um I think when it comes to these issues that you have to have the c—a culture that’s non-threatening so people can communicate with each other and if they do have issues they can—they can come to you because I do think that uh and Todd tell me about this. Uh if—if you have an attorney that’s struggling, right? Um and then you know you have some mental health issues, stress, anxiety, uh if they don’t speak up, it just gets worse and worse, right? You want to have a—a culture where you know, hey, if there’s an issue, come talk to us. We can work with you.
[15:55] Todd Yeah. And just with the very nature of that though, it’s really hard to have you—you could be the most welcoming and—and understanding uh inclusive culture when it comes to that. But it doesn’t mean that people that need the help are going to, you know, put their hand up and—and say it. It’s just the nature of that beast. But I think one thing that we really push with our—with—especially with our associates because once you’re a partner, I think you—you—you’ve kind of gotten into your routine and how you do things. Um, but I—I—I constantly tell associates from the first day they start, it could be a—it could be their first day as an attorney, I’m saying, I’m going to treat you like a professional, and that’s going to require you to act like a professional. And—and when I say a professional, it means, you know, when I think professional, I don’t think 9-5 or 8-5 or anything like that, a clock culture. I’m thinking someone that, you know, you’re providing a service to a client. So, we—we’ve got to be able to serve our clients. But my goodness, you know, if you got a doctor’s appointment, go. You got a sick kid, go. Um, and then—and then vacations, we—we respect the vacations. Like, I’ve been at firms before that don’t respect vacations. And where you know like here in Alabama and now we’re really a family oriented state like the family is a big part of it here but that might be your golden ticket to get out of anything—spring break—family vacation. You know, if you put that into a motion with the judge, I think across the board, you know, the judge is going to say, “Yep, you’re good. You know, we’ll—we’ll move heaven and earth so you can go with your family and go on vacation.” But and that’s great that the court might do that, but what about the partners, you know, like what if they’re, you know, still firing off emails to you on vacation because our work never stops. It’s always moving. And so that you always feel compelled to look at your phone, open up your laptop, maybe let me see what emails are out there. I—and I know Jim’s the same way, but we—I—I don’t copy my associate on stuff during vacation. I want them to—I want them to reset, enjoy life, enjoy the fruits of our labor, right? Like—like we’re here to make you to—to serve our clients, make a living, support our families, and—and enjoy part of it, right? I know you could be a savage like me. I—I—I like what I do and like I like getting emails. I don’t mind if clients are emailing on vacation. My wife and kids might say something different about that. Um but when it comes to, you know, that—that balance, be a professional. Know your deadlines. Know what you have to get done. Know what your—if there’s hourly requirements, know what they are. And you know, we haven’t gotten to a point where we’ve had to institute any other policies other than just be a professional.
[18:51] Jim Yeah. Let me—let me dovetail on that real quick. We just—only because we just sent out uh our associate review process and we do it a little differently. We don’t send partners a questionnaire to tell the associates what they’re doing right, wrong, uh indifferent, whatever. Our review process is to send the associate a self-evaluation form, let them tell us how they think we’re doing, what issues they have, and then we just sit down and talk, be human about it. Um, so I think that lends itself to um, you know, people being open about where they struggle, where they want to improve, and—and it’s nice to know what they love about working here, too, so we can be sure we double down on that. So, I think we have a pretty unique process uh in that.
[19:33] Todd And you really see how different generations prioritize things. And it—it’s—I hate sounding like an old man now where—
[19:42] Bill Here we go. Here we go.
[19:42] Todd Yeah. But, you know, well, I got some gray hair in here, so like I’m—
[19:46] Jim I got you beat.
[19:48] Todd I know. But, uh—it’s—it’s—it’s—their priorities are not necessarily the same as what you know the three of us would have in terms of priorities.
[19:53] Bill Because I walked to the law firm uphill in snow both ways and you guys have it so easy.
[20:06] Todd I work 4,000 hours. I work 366 days a year. 13 months a year, that kind of thing. So, yeah.
[20:18] Bill Well, that’s great that you guys um—um handle that uh the way you do because I do think that’s very important. All right, let’s jump in some nuts and bolts here on some pretty uh—uh specific topics uh topics. Let’s talk about um voir dire. Uh I am extraordinarily outspoken on this topic because I think it’s one of the—the—the weakest parts um relating to defense attorneys um generally speaking and um I’ve done a lot of writing many of uh podcasts and and have a kind of a newer—I call it disruptive voir dire because I want to disrupt everything that’s—everything I do is disruptive because I think some of the things uh in litigation that I’ve seen as consultant. Uh there are many things that are obsolete that are, you know, still being done and I think voir dire is in that category. I think it could be—it could be so much more effective if you really understand um the science behind this. So I’ve tried to you know publish a lot of things uh and talk uh a lot about this. Jim, how does your firm uh and you personally um—um approach voir dire because I think it’s—it’s so—it’s so critically important and I also think there’s a misunderstanding uh which again I’m trying to scream this over and over again is that for the relation—there’s an intimate relationship between your voir dire and your opening statement and I think I see a lot of attorneys see these as two completely different issues when they’re really really intercorrelated. Tell me about your philosophy on voir dire.
[21:48] Jim Yeah. Well, well, the voir—and I call it vor dire. There’s a million different ways to say it, but yeah, let’s go with uh so during jury selection, the judge has some discretion as to how much to let the potential jury know about, you know, what this case is about. Um, so you need to be prepared to go as far with that in your message as possible uh during jury selection and the way you ask questions and the way you tease facts. Um, you know, if you’re in federal court, a lot of times you’re limited to what’s in paper and get very little chance to stand up and talk to the potential jurors. But—but, uh, you need to know your message. And you know, I—I always talk about when I’m talking to somebody about a case, I need to have the elevator speech, the—the dinner table speech, and the full opening. So, I need to tell what the case is about in 30 seconds, 3 minutes, and 15 minutes. And if I can do those three things, I can weave as much as the court will allow me to do into jury selection so that I’m—I’m putting our themes out there and in the most simple common way uh that you know an average juror can understand.
[23:09] Todd I think—I think it is of critical importance at trial and I know you do bang the drum on this issue, but it is, you know, we always hear that expression from our parents like you never get a second chance to make the first impression. It’s the first time that you get to speak to the jury and um they’re going to make their impression like that and—and—and that could stick with you throughout the whole thing, right? And—and throughout the whole trial, they’re going to think about that first time you met and—and you spoke with them. So, you want to be like—and—and Jim was talking some of the technicalities of it. I guess I’m going to talk about more the intangibles of you want to be engaging with them. Okay? You want to get to—you want to use their names. You want to make eye contact with them. Um you want to hear them, listen to them, ask follow-up questions when they answer questions. And you know, if I could digress for a sec, because I—I—I last summer I got a really cool opportunity uh to be a plaintiff attorney. Um I got to do um a subrogation trial uh for a big specialty insurer with—
[24:08] Bill Those are fun.
[24:10] Todd Yeah. And different ball games. It was a big fire um in—in Etowah County, Alabama, and we ended up taking the case to trial. Millions of dollars at stake. And I got up there and I think one of my first questions was like, “Does anybody work in the insurance industry?” Had a guy put his hand in. So I go and talk with him and—and he was a personal lines uh adjuster and he was local. And he was with a—he was with a local uh an insurance carrier. I don’t want to use names, anything like that. And so I kind of went through all that and I just kind of figure, well, this guy’s gone like, you know, but—and because he actually knew what subrogation was. Well, then later on as I’m going through the questions and I’m doing my best to use their—their names and engage with them, I asked, “Does anybody have any bad experience with insurance companies?” And another guy put his hand up and he starts going through and—and saying that he had—had been through a car accident and he wasn’t getting enough money and blah blah blah. So then I asked him what insurance carrier it was and it happened to be the same insurance carrier as the adjuster that was in—and—and I just kind of like I stopped and I did like a long pause and I kind of made my eyes like this and I look at the jury and they’re like hushed [laughter] and I’m like wait a sec was it him? And I point to the adjuster was he the bad guy? And I got a laugh out of the jury [laughter] and—and I had him—I had him hooked and—and throughout the rest of the trial, they would look at me when—when something happened um if there was a big admission or an objection or stuff like that when they wanted to see the impact that had on the case, I had the jury looking at me—and—and so it—and that’s just one example, but if you can go through those things and you can make that connection and if you—if you can make a joke that hits, I think you—you’re—you’re setting yourself up for being liked by the jury as you start presenting your case.
[26:17] Bill Likability is absolutely critical and that’s—that’s really the time uh to do it. And that’s um—that’s—that’s—that—that’s a great story. Now, I’m a big believer um and again, you know, we all know this—clients, they don’t want perfection. They demand perfection. And we all know perfection’s impossible. Um, everybody’s going to make mistakes regardless of your experience or—or—or age. Um, and I think the—I think that’s the key to growth. I—I—I don’t think you can grow personally in your life or professionally without stepping on some landmines and going, “Okay, that [laughter] I effed that one up.” Uh, and you—and you learn from it. Have each of you—I’m sure you have. I’m not trying to embarrass you, but have—had you’ve made a mistake at a trial and it blew up in your face and you’re like, “Damn it.” But—but you learn from it. Can you talk about that? Because I—people hate talking about failures, people are terrified of failures. And I do think when people have failures or make mistakes, many of them just move past from it and they don’t want to really face it, break it down, and figure out how did this happen and how can I prevent this in the future. I—I think some of the greatest trial attorneys I’ve ever worked with have admitted to me they’ve made terrible mistakes, but that was part of their growth.
[27:41] Jim Yeah, I’ll—I’ll go first on that. I think uh you know the learning experiences I’ve had have by and large in trial centered around over-trying or overselling a case even if I think it’s a good case. You know you can’t out try the facts you have and when you do you lose credibility with people. So, um you know the most—most important thing I’ve learned and I think gotten better at in the 75 or so cases I’ve tried is you know establish that genuine connection and and have people believe what you say when you’re able to say it because it’s backed up by the facts. They don’t think you’re embellishing. You concede where you need to concede and you don’t ramble. I mean, you do those things. You hit your points, get in, get out, and back everything up with testimony and witnesses. You know, your opening is consistent with the evidence that comes through the trial and your closing is consistent what you said in the opening and it’s a clear cohesive message, then you’re—you’re ahead of where I was when I first started trying cases.
[28:46] Bill For sure. Being razor sharp and concise and like razor sharp is really really difficult because it never feels like enough. I tell—I tell a story—my—I tell a story about my son who uh was head over heels in love with this girl and blew it and I’m like God what you—what happened and he’s like well I—I text her nine times in a row and saying this—this—I say whoa time out you sent nine texts in a row—he’s like well yeah I wanted to get my point across. I’m like, “Well, no wonder she dumped you, right?” Like he did. So, this is like a human, this is not an attorney problem. That’s a human problem where you feel like I need to oversell because I have to maximally defend my client where we are in a attention span, less is more, meaning you can be very powerful with less. And you’ve got to mentally and emotionally get over that as an attorney. And I think—I think many struggle uh with that.
[29:43] Jim Well, I’m curious of your advice on this Bill because it is tough when you know I plan an opening that is 20 minutes maybe and I stand up and get ready to give it after the plaintiff’s lawyer stood there for an hour and a half giving an opening and the judges let him go. It’s—it is hard to limit myself because you feel like you need to match them and you shouldn’t.
[30:04] Bill It’s a trap. It’s a trap and I and I am positive. I am positive and and that’s more of an old school plaintiff uh maneuver there. I am absolutely positive that the plaintiff’s bar because you know how coordinated they are. Um there is a big big push to keep these openings 15 to 20 minutes and they know it’s a—they know it’s a trap and and—and—and then that you have this, you know, this disparity where they put on a really powerful 18-minute opening and then you go the hour and 15 minutes and jurors falling asleep. They’re checking out. they’re not paying attention. That’s a big deal. Todd, what—what—what is—what’s a landmine you stepped on maybe at trial and—and you kind of learned the hard way, but you learned and that was the important part.
[30:47] Todd So, I’m cringing just thinking about it because I knew you were going to ask me that like as we’re talking Jim about it and and since it’s just us three talking and—and no one will know, I can—I can [laughter] none of our audience will care. I was in a pretty significant injury trial here in Jefferson County with very good plaintiff attorney. There was 25 plaintiffs. Um, it’s a case for a whole different insurance reasons. Actually, we ended up taking it to trial. And we had an ex-employee who was under the control of another attorney who turned on us at trial and—and we—and despite assurances otherwise once he came up and once the witness came down and plaintiff started you know doing the direct and counsel was like well we actually met yesterday didn’t we and I—and I look over at my partner and I’m like oh my goodness this is not going to go well. Oh, and—and—and the guy just started dumping all over our client. And you know, of course, the blood’s boiling in my head. I—I don’t know what to do. And I stood up and made an objection. And I didn’t even have a basis for it. [laughter] And—and—and I—I remember like plaintiff counsel looks at me, the judge looks at me, I think my partner looked at me, too. He’s like, “What are you doing?” And—and then I just sat down and you know what I felt like and it was—it was like from a few—Few Good Men with Demi Moore. Yeah. Like I object your honor and then you know it’s overruled like well I strenuously object [laughter]—that’s how I felt. Yeah. And because what I did was I instead of just letting it roll off my shoulders like a really bad moment from my case. I let the jury know, yeah, this is really bad for me. Yeah, I look back on it now and I’m like that was the worst thing I ever could have done.
[32:45] Bill And in the movie, that’s remember she gets—she gets the tongue lashing from co—right co-counsel going you object once to know we think it’s unfair. You object twice, everybody knows you’re scared and that’s what you’re talking about.
[32:56] Todd And then so that’s like a specific example but—but I think as more of a—as a general thing I preach being genuine and I—I—and I—I preach that in—in everything like how we do depositions with business development um with—with your clients. You know everyone is different. Everyone has their own personality, their own way. And you have to be honest with yourself, comfortable with yourself, and be genuine and not try to be something else because I think, you know, people when a jury is just a collection of people, they can spot a phony and—and then they’re going to feel like this—this guy’s trying to trick me, something like that. So, um I think you really got to be genuine yourself so the jury thinks that this is, you know, they’re hearing from Todd. They’re not hearing what Todd wants to think that the jury’s hearing.
[33:40] Bill Yeah, that’s—that’s—So, we had a—This is a long time ago. There was a case uh in Dallas and uh it’s like an oil and gas case and uh the—the plaintiff brought in attorneys from Los Angeles. So, all the LA guys went out the—the day before and bought cowboy boots to wear—to wear to the courtroom. [laughter] Yeah. How do you think that worked out?
[34:08] Todd Be the LA attorney. Don’t you know [laughter] I’m not from here but you know I know this case and—and I’m—and jury I’m gonna—I’m gonna present my case to you. Yeah.
[34:15] Bill Um, so next topic, this is a more general question. Uh, and I’m—I’m not sure there’s a—a right or wrong uh answer, but um what—what—what—what trait or—or—or traits if there’s a constellation do you think and probably what you’re looking for when you know when—when you’re hiring um that that really leads to be a successful trial attorney?
[34:44] Todd Um, I’ll take that. Um, I think to a certain extent you don’t know, right? And it because it’s—it’s—it’s not an exact science. Um, you know, there’s—there’s—there’s the one school of thought, well, we want ex athletes. You know, they have those competitive juices flowing. They want to win. And I think there’s—there’s probably some truth to that, but there’s always exceptions to the rule. Um, and I’m just going to kind of dovetail to what I just said before. Is—is the person comfortable in their own shoes? Are they genuine? Because I think that is such an important part. Like I look at trials like of course you have to be the master of your file. Like you know you’ve put—you put fingers on every document in the case. You know all the testimony. Like that’s—that’s—that should be a given if you’re going to trial. So I’m talking about other aspects of it. But if you’re just comfortable in your shoes, people like people that are comfortable who they are. Even if you’re a jerk, if you just kind of like—Yeah. You know, I’m not saying you have to say you’re a jerk, but just be who you are and not try to be something else because if the jerk is trying to be like a super sweet guy, that looks phony, just like, too.
So, um, you know, so I—I don’t think you just want to have someone who’s comfortable in their own shoes and confident who they are. Now, I think there’s a lot of training to get someone there, right? Yeah. Um, you know, because you have new attorneys coming in. Nobody likes—Nobody is born comfortable—well apart from a few—but born comfortable sitting in front of a bunch of people trying to advocate. It’s just not a natural thing and then to be able to get used to doing that and then to go the next step to get used to being yourself in front of there—like I remember when I was younger in front of a jury or in front of a court I wanted to be so precise. I wanted to be formal. Like you know like there’s not a wrinkle in my suit. Not a hair out of place. Like I wanted to be perfect and now I just kind of lean into who I am and I’m—and I’m like then I’m not having to—it’s thing I don’t have to think about because I’m just being myself. Yeah. Whether you like me or not. Great.
[36:54] Bill Jim, what do you—
[37:00] Jim Yeah. There—there are a lot of uh lawyers walking around who were top 5% of their law school class with a you know 4.0 0 and um and aren’t what we’re looking for. Uh I always go back to um the interview we had with one of our current associates. Um you know her resume had a few things that caught our eye. So we took her to lunch—actually we—trying to remember I think we met her in office and we took—took her to lunch like a couple of weeks later and towards had a delightful discussion. Todd, I think you were there along with one of our current associates. And then as we were getting the check and uh you know, I thought we had a great conversation. She goes, “Okay, so what are we doing here?” And I love that because she, you know, she was very practical. She was not afraid to stand on her own two feet. She was direct, but it wasn’t pushy at all either. So, I, you know, that—and she’s one of our best associates today. Love working with her on my team. um you know so a lot of those intangibles you get from getting to know somebody as a person um that don’t show up on a resume are important for me. Yeah. And that translate—that translates to someone who has some um you know some skills in the courtroom because they can do what is needed without you know fear of rejection or fear of what—what other people think.
[38:20] Bill Yeah. because I do—I do think that the whole growth of the attorney is—is—is important and so they may have—
[38:30] Todd I remember that specific [laughter] lunch and that was a couple years ago and it stuck with us.
[38:35] Jim It—it kind of almost felt like the DTR talk the girl brings up after you’ve gone out on like sixth or seventh date and she’s like has no idea where this is going and you’re like are we dating here or not? I don’t [laughter] like don’t ask me that. But—but she did and we—and we made a good decision to hire her.
[38:51] Bill Outstanding. Um back into more um litigation specific things. Um let’s talk about um witnesses. I know you—you both defend a lot of depositions and that’s a lot of witnesses from fact witnesses, you know, at all levels. Um you know, employees, managers, corporate reps. Um, what do—what do witnesses do that make you the most nuts? Because this is—this is one—these are the fires that I tend to put out on my end, but I’d like—like to hear uh what—what bothers you guys. Oh, there—and there’s—there’s Todd. Yappy. Go ahead, Todd.
[39:32] Todd Yeah. No, just answer the question. And—and—and I say that all the time. I said it is not your job to educate the plaintiff asking the questions to you or the plaintiff attorney asking the questions to you. It is—it is their job to elicit testimony from you subject to proper you know questions and just ask the question and—and the way I try to prep that to the client too is saying obviously you don’t want to be here and give a deposition—it’s an awkward situation—it’s—it’s not a normal thing—the faster you’re going to get out of there faster if you just answer the question um and—and now of course you know there’s nuance and exceptions to everything, right? Like you’re going to have defensive themes you have in your case and we never tell a witness what to say, but that witness is going to know kind of the theme and our defense theory. And there might be some things you want to interject and make sure that they say it at some point in the deposition, but really it’s when—when they just go on and on—like kind of like I did with you, Bill, when I—when I brought up the AI, it just opened up another door and—and—and so just—just answer the question and then also another thing too is take your time and don’t—don’t fall victim to the pace of—or the—
[40:51] Bill Number one problem. number one problem.
[40:51] Todd is It’s—it’s—don’t fall victim to that—that cadence. Yeah. And there’s no problem with sitting there for a second and thinking about it and answering the question, especially if it’s not videotaped. A lot of depositions are videotaped right now, but even then, but like, you know, when we’re just having a paper transcript, it doesn’t say, you know, the witness spent, you know, 35 seconds contemplating the answer. And so those are the two big ones I think is just take your time and just answer the question that’s being posed.
[41:23] Jim Yeah. Yeah. There—there’s—there’s a person very close to me who shall run name—remain nameless who constantly has to start talking to figure out what she wants to say and it’s—it’s meandering and it uh we eventually land on the point. Um, and you know, I just—I’ve realized working with witnesses over the years that people are all different. You have people who have a tendency to talk, talk, talk to figure out what they want to say. And you have people who don’t want to say anything. Yeah. And—and have ideas in their head they’re afraid to spit out. So, you really, you know, in terms of witness prep and—and Bill, you’re the expert of this. I’d be interested in your thoughts. Like you really got to evaluate what kind of personality you have first so then you can bring them to where they need to be as a witness in a deposition or a trial.
[42:15] Bill Absolutely critical. Um it’s a step that um many people skip and it’s the first thing I do when I work with witnesses is I got to learn how their brain’s wired. Uh particularly emotionally—particularly emotionally uh because that’s—that’s going to—that’s going to tell you a lot, right? And—and their emotional levels, right? uh coming into the case. I mean, as you guys know, some witnesses come in and they’re scared to death, right? Well, you—you need to know that because that’s going to—that’s going to impact the pace and that’s going to impact how much they talk, right? And some people come in and they’re not scared to death, but maybe they’re—they’re annoyed, they’re frustrated, like why—why do I have to go—like I don’t understand this, right? And they got that annoyance factor. Well, that’s going to impact their testimony. You’ve seen the, you know, some of these witnesses come in and—and they’re pissed. They’re, “Hey, we didn’t do anything wrong. I didn’t do anything wrong.” And they’re very emotional.
And when you’re dealing with witnesses like that, trying to teach them anything is almost a waste of time at that point because emotions run high, logic shuts down. And so, you know, asking those upfront questions to get to know them as a human being, how they process information, right? Kind of what’s their baseline communication style, but really asking them, you know, how are you doing emotionally with this case is, and what I like to do, which just makes it so much easier, I just tell war stories. I’m like, listen, I tell them, I’m like, I’ve worked with thousands of witnesses. I’m like, I—I give the same talk I just gave you. Some of them come in here, they’re terrified, they’re losing sleep, they’re skipping meals because their stomach hurts, right? That’s one type of—of witness. Others come in, they’re really angry, right?
[44:00] Todd They can’t wait to testify. They’re going to win the case, right?
[44:03] Bill And I just—I just described four different types of—Yeah. Some witnesses come in, they’re completely apathetic. They don’t care, right? I’m like, where—like where are you on that spectrum? And they’ll tell you right where they are if you kind of outline that.
And then the important thing is this is the key. You normalize emotional reactions by witnesses to your witness to say, “Hey, it’s okay to be upset in some—like that’s the norm, right? That’s the rule rather than the exception. Let’s talk about how you’re doing. You’re going to learn so much about your witness in that first hour, which then lays the foundation of everything you’re going to go over. Now, when you just skip over that step and you go, “Okay, thanks for coming to the meeting. Let’s go over exhibit A and exhibit B, exhibit C,” you’re going to have problems, right?
[44:50] Jim Yeah. That—that goes back to the question of what mistakes I’ve learned in the past. The thing that I think has helped in both job interviews when I’m interviewing somebody and preparing witnesses is the first call it hour of prep, let them talk. My goal should be to talk as little as possible and let them get their mouth moving as much as possible. Either they’re a talker and they need to get it out or they’re not a talker and they need to learn how to access what they’re feeling. Um, you learn more about the witness that way, you learn more about the lawyer you’re interviewing you want to hire that way. And—and that was hard for me to understand at first because I felt like as a you know five-year lawyer I—I knew what I needed to tell them for them to testify well—not—I didn’t—well not without knowing them at first.
[45:34] Bill Yeah. Let’s extend this a little bit. Let’s talk about the concept of trust. I see one of the mistakes I see so—and where—where defense attorneys get mad at me—they don’t get mad at me they get frustrated is I’ll come in and I’ll do my thing with a witness. The witness tells me a ton of stuff they did not tell their own attorney. We get to the first break and the defense attorney’s like, “What the hell was that?” Like, “What? What? What?” They never told me that. They—I said, “I know cuz I—I did it my way and they told me and then we talked and the witness told me—like I don’t like attorneys. I don’t trust attorneys.” I’m like, “But this is your attorney.” I know, but like—like I think everybody assumes like I’m the attorney for the corporation, so this witness is just gonna automatically trust me. You guys agree trust has to be earned and—and—and—it can’t be assumed in these cases.
[46:22] Todd That’s a really good point and I’m going to—I—I—I—I know—I know emotional intelligence and emotional aspect of it is—is—is one of your, you know, hallmarks what you do. Um I—I always tell my clients—like especially the ones that are with the ones you were saying like I did nothing wrong. I did nothing wrong. And—and—but what I’ll tell them sometimes is I’ll say listen this is—you’re going to get beat up. It’s not an—even if you were—you know Mother Teresa a good plaintiff attorney you’re going to walk out of that deposition five six hours later and feel like you ruined the case. And—and—so I always try to tell them this, especially if this is the case with the facts, but I’ll tell them, y’all done nothing wrong. Okay? And you have to remember that as you’re going through this and you’re—and you’re under the barrage and sparring with those questions, like, you know, be confident that you’ve done nothing wrong. Let that kind of be a guide to your answers and how you answer the question. And I—and I try to do that right off the gate when I prep is to kind of lower their temperature and—and—and you know let them know that I’m on their side and you know it’s going to be difficult but let’s keep—keep that as our guide that you did nothing wrong, in the cases where they did nothing wrong.
[47:43] Bill [laughter] Well, listen, you have other cases, right, where there was something done wrong. You know, you have, you know, we all work on cases where there’s admitted liability. It’s a different discussion, right? And now—now they—they have—they have to trust you even more in those cases, right? Because I mean, how many times have you seen that where you’re working with a witness on an admitted liability case? Um the emotions are heightened, right? They’re very, very fearful. Uh they often have some illogical like, oh, if I don’t—if I don’t—I hear this every, you know, if I don’t do well in my dep, like I’m going to go to jail or something, right? It’s like, no… right? Things like that. Um those are very difficult. uh witnesses to handle.
Well, let—let’s wrap this up. We’re almost at the uh top of the hour. Um I want to—I want to end with the topic that I—I think it’s really um important because uh many of our listeners and viewers, many are younger attorneys, their younger partners or their you—or their associates. And um one of the problems that we’ve seen in the defense uh with defense firms uh year after year after year and uh I call it the transfer portal uh right it’s the transfer portal for associates—is—um—is—is—is associate um and young partner retention and um that we again we have a lot of young uh listeners and viewers what what advice would you give them because I think every young attorney they want to get ahead they want to make partner they want to, you know, strive for—for growth in their—in their career. Um, and um, I—I—I think some of them don’t really know how to maybe—maybe do that or—or—or they’ve been misguided or maybe their expectations are unreal—unrealistic. So knowing that you’re—a lot of young attorneys are going to listen to this, what advice would you give them say if they’re in that kind of first, you know, 3 to six years and they want to get ahead uh the types of things they—they should do and—and perhaps should not do.
[49:42] Jim Yeah. I think the first three to six years is a good time to really fine-tune your understanding of law firm economics and how—Yeah. Um and how the different roles in a firm work. And you know, probably I’d say Todd would certainly agree with me at this. We’ve worked through all the roles. When you’re a first year, second year, third year, really even up through fifth year, fifth year, you’re a grinder on files. You’re handling tasks. You’re starting to learn how to see a file from start to finish. Uh, and your—your role is to do the work of a lawyer and—and always, not always the fun work, so that you can get to the point where you’re a manager of files. You know, we’ve heard that phrase finders, minders, and grinders. Um, you know, once you get into that seven to 15 year range, you should have uh the capacity to—to run a file from start to finish, run an associate under you. And then, you know, at some stage in your development, clients begin to see you as someone they trust with their work. And that is a long game to play. But you got to understand the economics of a law firm, how—how the money flows through um through each of those roles and how to develop a book of business based on uh you know a track record of—of success. Um so I—I’d encourage—and we’re actually having our uh our annual associate half-day retreat. We’re going to talk about some of that—what a partner means and what the different kinds of partners are, what the role of an associate is. So, um, you know, get with a partner you trust and ask some of those questions about how a law firm runs.
[51:19] Bill Got it, Todd.
[51:19] Todd So, you know, I think when you talk about where do I get ahead and how do I see my career, um, a lot of it has to do with, if we’re just being honest, is about developing your own client base and your own book of business and—and how do you get going there and—and you know, you’re not going to do it as first year, okay? Um, and frankly, you can’t talk about it for a few years because you don’t know what you’re doing. And so, like I—I will always say is, you know, you want—you want to do the talent stack. You want to learn everything. You want to step out of your comfort zone. Never say no. Like if a—if a—if a partner comes to you and says, “Hey, do you want to take this key deposition?” That means the partner thinks you’re capable of doing it. Okay? You might not think you’re ready there yet, but just go ahead and do it.
I did this with one of my associates a couple years ago in a big construction file. We had a very limited role, but we had a lot of exposure and I—for whatever reason I—I—I couldn’t do it. I said, “We’re not going to get in the way of this deposition, so you’re going to have to take it.” Um, talk to our expert. You know, we have a very limited line of questioning we need. And—and I unfortunately I didn’t get a chance to read the deposition right off the bat. And then she went on maternity leave, and I came back and then I was getting to the point where like just positive motions and whatnot and I’m going through that I was looking at her deposition testimony like oh wow it’s like really good—and—and I called her and I messed with her a lot. I’m like, “You know, you—know, we got to talk.” And she’s on maternity leave. I hadn’t talked to her for a while. And you could tell like trepidation her voice. I’m like, I just read your deposition testim—your deposition questions in blah blah blah case. And she’s like, yes. And I’m like, it was phenomenal. And that gave her the confidence now where like—it—it light years above. It was like—it was like she—she—her experience level jumped like two—three years because I gave her that confidence. Yeah. It was and it was due, right? It was something that she earned.
Um and so you want a talent stack. The problem is—is that—and I’ve been there—is when you’re a young attorney, maybe you’re trying to, you know, have a family, you want to get married. There is that pull for that extra 20—25,000—which you know which is a lot of money—like right now for me that’s a lot of money—but when you—when you get younger and starting that’s even more money and it’s—and—and I’ve made those moves when I was younger and if you can stick with one place so you can really talent stack what you’re doing there you start earning the trust of your colleagues—start earning the trust of your partners—you’re going to do more um easier said than done, right? You know, when there are other firms that are offering a little bit more money and this person is saying, “Hey, I—I—can renovate my house, blah, blah, blah.” Um, but I—I would just say talent stack as a young attorney. Ask questions. Be willing to do things that you’re not comfortable with and—and—um—ask and—and be inquisitive about the business.
[54:23] Bill Perfect. Well, guys, thank you so much. I got to wrap this up, Todd, Jim. Really, really appreciate it. Keep in touch. To our audience members, thank you so much for listening to this edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. We’ll see you next time.
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