Episode #95 - Winning Before Trial

Guest: Charles Price, Counsel - Litigation - Eaton Corporation

This week's guest is Charles Price who manages litigation for Eaton Corporation and is a professor at the University of Akron where he teaches a law school course called Winning Before Trial. Charlie and Dr. Bill Kanasky, Jr. talk about differences between law schools and the background behind the Winning Before Trial course, which focuses on understanding psychology, economics, statistics, accounting, neuroscience in the application of law. They also discuss the changes that have taken place over the years with trial attorneys and the challenge of getting trial experience these days, particularly for younger attorneys. Charlie shares his perspective on the differences between serving as in-house counsel vs. working for a law firm and comments on the high turnover with millennial attorneys. He describes the approach that Eaton takes to develop early career talent to address the turnover issue and how they get less experienced attorneys more exposure and opportunities to help them grow. Lastly, Charlie talks about his blog winningbeforetrial.com and Bill shares the importance of being proactive on prevention and pre-litigation planning and training.

Podcast transcript:

Dr. Bill Kanasky [00:00:06]  Welcome to another edition of the Litigation Psychology podcast. This is where it's at. Ladies and gentlemen, approaching 100 episodes, this has been really fun. This is sponsored by Courtroom Sciences. Go to www.courtroomsciences brand new website. It's bad ass, actually. Articles, blogs, podcasts, all types of information for you and all of your litigation support needs. Today is a is a guest who has a very unique position. I've been looking forward to this podcast for some time. His name is Charlie Price . He is one of my good friends from the International Association of Defense Counsel. IADC. I've been speaking at IADC. I mean, for a long, long time, my good friend Andrew Chamberlain, I believe, is the president now, and they have such a great group of defense counsel now. And I will be speaking to them very shortly with code member John Nunnally on nuclear verdicts. Looking forward to that. Welcome to the show, Charlie Price . Charlie has been he was in practice for about 20 years at a law firm in northeast Ohio. In 2016, Charlie joined Eaton's litigation team in Cleveland, Ohio, where he currently helps manage litigation around the world. He is a teacher at the law school at the University of Akron, and he teaches a course called Winning Before Trial. We're going to talk a lot about that, Charlie. Welcome to the show. How are you doing? 

Charlie Price  [00:01:48] I'm great. Thanks for having me. I'm excited to do this. 

Dr. Bill Kanasky [00:01:52] So you reside in Cleveland now? 

Charlie Price  [00:01:55] Correct. 

Dr. Bill Kanasky [00:01:56] OK. So I guess the first real question is, I mean, is Baker Mayfield coming back? Is he done? I know he tore up the shoulder because I think your season pretty much depends on it. 

Charlie Price  [00:02:06] I would tend to agree. I saw a news report at about noon today that he was going to be playing in the Steelers game. So yeah, I hope his shoulder and his arm stays on for the rest of the season, but he's going well. 

Dr. Bill Kanasky [00:02:21] If you have to beat one team, it's the Pittsburgh Steelers. If you live in Cleveland, we all know what that's about. And you got to watch out for Pittsburgh, the kind of sneaky. I think they're bad. And then they come out and, you know, they beat the bills in the opener. You never know what's going on there, but Cleveland is a great sports town, and my father is a lifelong Cleveland Browns fan, so I had to grow up going through things like the fumble. I mean, you know, all those things are very traumatic time. The drive, the drive, the year after a very traumatic time in my life, I didn't want to bring that up, but I'm very fond of Cleveland, very fond of the Browns. And I think you're the first person that we've had in the podcast, that's not only an attorney and you're in house, but you teach you teach in law school. And when I do speaking across the country, it's funny because a lot of I get a lot of questions from the audience, and many of them believe or not are like, why don't they teach this stuff in law school? Talking about like my reptile theory talks so my nuclear work talks and my response- and maybe I'm wrong, but I'd like your opinion. My response is I don't think they're ready for this talk in law school. What's what's the story on law school these days and how are things over at the University of Akron? 

Charlie Price  [00:03:43] Well, I think, you know, so we have, you know, right here, we have Cleveland State, which is a great law school. Akron which is a great law school, a great law school and you know, things are good. Akron is, you know, a few years ago, they had a really great dean afford a real forward thinking named matt Wilson, who's now at Temple University Japan. And he, you know, he was he was the dean. And then he became the president of the college and he was pushing everything, anything that was innovative, anything that was going to be the next thing. He was open to and that's and so I approached him about a class that I was really interested in a topic and asked if he was interested in it and he said, Yeah, go develop it and let's do it without. I mean, it was in the same conversation. He just listened to it and said, Let's do it, and that's Akron is a great place for that kind of thinking, and it's been awesome being there 

Dr. Bill Kanasky [00:04:41] Before we talk about this course, you just I just thought of a new question here based on what you just said. I'm not a lawyer. I didn't go to law school. I did. I think I I took the LSAT once at some point and did so badly on it. It turned me into a clinical psychologist. So that really defined my career path where there are. Are law schools the same like as, I mean, are they, I guess, or another question is based on what you're seeing now, what you know of other schools, I mean, you hear about all these law schools and you have some of the, you know, more medium sized schools, small schools, are they all kind of teaching the same stuff? Or is there is there a lot of big time differences between law schools today? 

Charlie Price  [00:05:28] You know, I think there is a I think there's a difference in philosophy and focus, and I went to Case Western, another school right here in Cleveland in the backyard. I would say that, you know, Case was focused on sort of just thinking legal, thinking, becoming great thinkers. Cleveland State, for instance, it was more focused on very practical aspects. How do you how do you what do you need to be a a good lawyer? And you know, I think there's a rivalry between those two schools right in Cleveland. But you know, a lot of our a lot of our great public servants, a lot of our great judges come from Cleveland State. And so, you know, it's it's just it draws a different student students. It has it's maybe a little bit, at least when I was going to school a little bit easier to get into that school, but a focus on a completely different area where, you know, Case was a very traditional law school education, Socratic method and all that stuff. So I do think that there are differences in where you go. Some schools just focus on trying to get you to pass the bar exam. You know, so each one is different. I think that there's probably value in all of the different theories, but they are different. 

Dr. Bill Kanasky [00:06:41] Excellent. Let's talk about the course that you teach Winning Before Trial. How how long have you been teaching that course? And what really, what was the spark that that generated this course? 

Charlie Price  [00:06:55] Yeah, I've been teaching it since 20, Well, I guess 2015 we started developing. In 2016 it was launched. And I think I had like five students. Not now we have a waiting list. We'll have a waiting list. [00:07:08] Oh, wow, awesome. [00:07:09] And so but you know, I would say that I was a very average. I was a very average student, maybe even below average student. I got into the practice of law and I realized like, I looked around and I saw, like, you know, all these really smart people who all knew the law, who all worked their asses off. And that's what I was doing. And I looked around really quickly and said, Well, if I'm going to do anything here, I better figure out what, what the advantages are because I'm just going to get by, you know, on my regular lawyer stuff. You know, I'm not a I don't have some, you know, some great oratory voice, you know, and so I never get an advantage. So I started looking into, OK, what are the ways that? What are the things I can get good at? And a lot of them are outside of the field of law psychology, which is what gets me excited about, you know, talking to you and the first time that I've listened to your podcast. You know, I was hooked because you're talking about stuff that I think every lawyer should be able to do. And so anyway, as I tried to figure out ways I was going to stand out, a lot of it took me away from traditional lawyer stuff and into other areas. And, you know, after, you know, doing it for a long time on my own, I spoke with Dean Wilson about, Hey, would this be an interesting class? And he said, Yeah, and you know, and so kind of that was the impetus was, OK, there's all these lawyers that are out there, you know, 1.3 million lawyers. We're all trained this basically the same way. We all have access to the same materials. We're all driven. We all are workaholics. We obsess. And so how do you stand out among that group? And in, you know, how do you do it well? And. And the answer, I thought, was, Well, you have to leave law and you have to you have to go and understand key aspects of psychology and economics and statistics and accounting and neuroscience. All these other things, just big ideas that you can take and apply. And that's that's what this class is. 

Dr. Bill Kanasky [00:09:18] What? So at what point in law schools three years, right? Yeah. At what point are students ready for such a discussion? 

Charlie Price  [00:09:29] So this is a second or third year class, so I think if you have, you know, if you've had some intro classes about discovery and about civil procedure and maybe evidence and maybe trial advocacy, then you're you're ready. But a lot of the science can be applied, you know, really to anything. So but we the class is of second year, third year class. 

Dr. Bill Kanasky [00:09:51] Excellent. Do you ever have guest lectures come in to talk about some of these specialized topics that are maybe outside of law? 

Charlie Price  [00:10:00] We have a lot of guests that one of the ways we dealt with COVID was every, every class we had a different person from around the country call in. I think we've had one non-lawyer one or two, not lawyers speak. But that's one thing that we're going to keep, even when we're back in the classroom is these call in guests. And so like someone like you with your background, you could in in an hour, you could you could give them such an advantage while they're still in law school to what you think about as soon as they come out. And so that's. So yeah, it's one thing that I want to do more of next year. 

Dr. Bill Kanasky [00:10:37] And it's important. So I have I've given a couple of lectures at Pepperdine University Law School in Malibu, and if you've ever been there, it's the most disgustingly beautiful place I've ever been in my life. You're on the top of a cliff looking over the Pacific Ocean. I don't know how much it costs to go there, but I think it's worth every penny and work with some of their students and also did the same at the University of Tennessee in Knoxville. And the one thing I got out of doing those lectures at the law schools because I gave everybody my card, I said, Hey, students, you know, keep in touch, call me. I think every one of them got a hold of me afterwards, saying, like, Wow, I, I was never I've never been exposed to this. And to see what you do and how you mix with psychology and other experts was a really eye opening experience. And got it. Got it, got a lot of good feedback. I guess what were I am shocked and I guess the question to you is what you just stated about what can make a huge difference with these students. I don't think this is any mystery, but it sounds like maybe not a lot of law schools are are doing that or maybe not doing enough of that. What is your knowledge about the types of courses that you teach? Is that spreading across other law schools or is it is a pretty isolated going from school to school? 

Charlie Price  [00:12:07] Well, so I am, you know, I'm limited. I know what my alma mater does case Western. I know that what Cleveland State does and then Akron, which I'm at, you know, so it's the only program like it in our region and there's not a lot. Now, now, now law schools will have they might have a psychology class like a, you know, a litigation psychology class. And that makes sense because I think of all the non law disciplines are field psychology is probably the one where you can get the most bang for your buck. If you if you have an advantage in how you communicate, how you negotiate, how you advocate, how you explain things to your client if you understand psychology. So that makes sense. But beyond that, I haven't seen I haven't seen a lot of classes in kind of litigation, decision making or strategy, you know, strategy between. Like achieving advantage between the main litigation events, right, that happened, so you write, you write motions in your film, but it's all those little decisions that you make in between those events that give you your advantages, you know, long term advantages, not nothing like that as far as I've seen. 

Dr. Bill Kanasky [00:13:21] Well, it'd be nice if if that if that would spread right to other law schools and to other areas. And I guess every law school can make up their own curriculum. But I think it would be attractive for students to be able to to get some of that other non non legal education and training that, you know, is going to be relevant going forward, regardless of where you're you're working now with your students. I'd like to get put my fingers on the pulse here because I don't follow law schools or law students or how many people are applying. Like what proportion? And maybe you talk about acronyms and maybe if there's some general statistics you're aware of? I mean, how many of these folks like want to go into litigation? Is there? Could you maybe throw out a ballpark there? Is it a little bit or is it a lot? What do you think? 

Charlie Price  [00:14:22] You know, if you look at just the breakdown of, you know, there's about a million three lawyers a year, about 40000 new ones each year, new lawyers each year. I think that the numbers around 20 to 25 percent do something with like a litigation bent. And so, you know, about one in four go off and do sort of like traditional litigation. So it's a fair number 

Dr. Bill Kanasky [00:14:51] Yeah, and that's because I was curious about that kind of where the where the numbers were now. Now you were so so you're more of a traditional trial attorney for 20 years and then you transferred in-house. 

Charlie Price  [00:15:05] Yeah, I was I would I would, you know, I would say that one of the one of the things that was that I noticed early on is that there aren't many. We call them trial lawyers, but there's very few now. You know, you get because. Because less than two percent of cases go to trial and it creates two problems. One. You know, lawyers today are learning from people who didn't try cases like back in the old days when the trial lawyers had 20 or 30 trials a year. Well, now you might have one a year if you if you do a lot. And so a lot of times lawyers are missing out on that training. And the other piece of it, I think, which is which is really important is that you don't get that end of case experience. You don't get the endgame knowledge. And so you if you've never been in trial, you can't look back and predict what's going to be important at the beginning of the case. For instance, if you're if you're while up with some issue because a jury hates your client or a witness and you don't realize it until you've actually gone through it, and it was something that you could correct. Early on, which is something you would advocate, I've heard you advocate that on your podcast, you wouldn't know that that advantage exists until you've lived through it and probably seen it play out against you. And so those are the problems where, you know, those are the problems. I would say I was I was a litigator, not a trial lawyer, but I knew I at least knew that there was stuff. I had all these blind spots because of that, and I tried to fill them in in all these different ways. 

Dr. Bill Kanasky [00:16:43] Yeah, that's and that's that's excellent background. Have you? Do you like to transition to the in-house role as a from a from a lifestyle perspective, like can you actually like have dinner with your family in the evening? Is that possible? 

Charlie Price  [00:17:01] It's maybe it's more how I am. It is, you know, in-house lawyers. There's a perception that it's easier, but I'll tell you that the lawyers that I practice with, we work our asses off. There's no is no, it's no easier. It's no less of a load. Say it's stressful. What I like about it, my favorite thing about it is that I get exposed to really good law firm, really good lawyers from really good law firms. And we can get, you know, I used maybe 40 law firms and so I can take I can work with like 300 professionals who are and, you know, make sure that it's this wide, diverse group with all these great differences and backgrounds and all this stuff. And I I can. Learn from all of them. And that is my favorite pieces, I get to work with really smart people smarter than me, and I can take their ideas and pick their brain and then incorporate it into how I, you know what kind of lawyer I am, and that's exciting. 

Dr. Bill Kanasky [00:18:02] So that's an interesting point that you work with all these law firms from the in-house perspective, because listen, law firms are always looking for new clients. And I will tell you this because I I work with more than 40 law firms. I work with hundreds, if not thousands, at this point. And the difference between the culture, the talent, the philosophy is so different. What are some of the both attorney based and just kind of firm based characteristics that you're looking for from the in-house perspective to say, Hey, this would be a good fit for our panel and our types of cases? 

Charlie Price  [00:18:45] Yeah. So I would say if I were going to, you know, I would say that we have kind of everyone has the knowledge, legal analysis, ability for advocacy and stuff. But where I think it gets really interesting is and what you, you know, like people who are really creative, great writers is one of the most like great communicators, right? Which is again, one of those, you know, if you can add like a journalism training to your blog, you have a huge advantage. So communication, creativity, the ability to make predictions about and you know, and use numbers and be comfortable with numbers and making predictions about outcomes, that's great. And then the psychology piece is huge. Anyone that you know, anyone that's paying attention to, you know, the biases and the kind of the cognitive traps that lawyers we fall into all the time from the moment we get the complaint. Anyone who's paying attention to that and they don't have to be expert in it, there are experts to do that. But anyone that's paying attention to those kinds of things, it gets me excited. 

Dr. Bill Kanasky [00:19:54] That's that that's excellent. Now, I'm not sure if you're aware of this being in-house, but there's two. I think there's two really, really bad problems going on, particularly with the defense bar is number one you or you already mentioned number one. There's not a lot of trial attorneys out there. And that's a problem and that's going to rear its ugly head as we go year by year and folks start retiring. The people behind them, I think, may have their hands full because I do think that their counterparts in the plaintiffs side try many more cases are far more trained because they're in a very different system. But another problem I've seen, which is a national problem, and I hear about it every week from big time partners that law firms that are so annoyed, saying these millennial attorneys bounced around from firm, the firm. They don't want to work past five o'clock. They don't want to be in the office before nine 0 one, and they don't want to work on weekends. And then when you pressure them, they quit and they go someplace else. And so I find the partners that a lot of these law firms, I work with a lot of turnover on the associate end, and they're struggling to get those draft picks right up to the starting positions. Do you talk about that in your classes or is there actually maybe you talk about that among your colleagues because I think that's a big, big problem, the lack of consistency at that level. And you don't have those people growing within the firm. 

Charlie Price  [00:21:39] Yeah, I think that it's a great it's a great it's a great question. It's a great issue. And I think that I've heard the same thing. We can't keep talent. It's the millennials and the millennial bashing and stuff. I would love to see millennials. I would. I would say that, you know that if we. I'll put it this way, if we went to those same partners are complaining about not being able to keep their millennials, and we said Ian will pay your hourly rate to go fix the problem and figure out ways to keep them there. Yeah, they wouldn't shrug their shoulders and give up after six minutes charges point one, they would figure it out. So I would say for them to figure it out, for us, for Eton, we get really excited and actually one of my our head of litigation, we we call it jetpack jetpacks. We we when we get a young lawyer, we try to get them in, you know, as engaged as we can in our matters, give them leadership roles, give them training, give them mentoring if they want it to try and develop them. And we call it jetpack. Like we shoot them off into the stratosphere and we get them ahead of everybody else. And that's what we try and do. That's our way of trying to help firms. You know, help firms keep their young, talented people interested, and that's terrifically interested in our work because it is a problem. And you know, we do talk about it for sure. 

Dr. Bill Kanasky [00:23:07] Yeah, because I get a lot of again, I hear a lot. I've had been a psychologist. People is going to dump their goddamn problems on you. And so a lot of it is, you know, I got this superstar. I want, you know, him or her or whoever to to get more experience than the insurance company won't let me. Or they won't let them do the opening. They won't let me do it. They only want me. And from an insurance defense standpoint, I think that's just another dumb thing going on because what the claims people and I've talked to clients, people too, like, Hey, I'm not having some rookie come out of the bullpen to throw in a World Series game. No, no, no, no, I'm going with the starter and you know, the associate can be the bat boy or whatever. There's got to be some give and take here. I mean, otherwise, these young, talented attorneys are just going to be right, embrace emotions, and they're not going to be able to get in front of those juries or do those even do the mock trials. And I guess the problem I have with that is all the conferences I go to. This is not an issue that actually comes up too much in the in the in the domain of the presentations or the discussion. It's like the dirty little secret no one wants to talk about. I mean, how can we get the word out there to try to convince, you know, between corporate America and the insurance industry that we've got to have a way to get these folks up to speed because otherwise, when these very experienced trial attorneys say, You know what, I'm going to my lake house, I'm done. And then the person behind them has tried six cases. The verdict? That's going to be a problem. 

Charlie Price  [00:25:00] Yeah, and it's going to be a problem for their for their clients to great. Yeah, it's a great observation. I think, you know, for the matters that I can say, you know, for the matters that eaten. Gives out to firms and has people. We insist that that the younger lawyers are involved in a meaningful way. And we. We invite them to all the conferences, we ask them questions, we get them speaking, and then we tell the, you know, the relationship partner or whoever it is. We say this that for our, you know, sort of for our model to work its best ideas. When and if you're not getting ideas from your whole team, then we're not going to get the best ideas we're in. Get your ideas. And frankly, we don't want just your ideas. We want your whole 

teams. And so if the first year associate or a paralegal isn't comfortable participating in giving them given a meaningful role, well, then you're doing us a disservice and we try and communicate that and stay involved. Our head of litigation is, you know, when we have calls with our firm, he'll go down the list and make sure that he's getting the the ideas and opinions of everybody on that call from most senior to least senior. And I think it's a good way to handle it. 

Dr. Bill Kanasky [00:26:20] Outstanding. Let's wrap up. You write a blog. 

Charlie Price  [00:26:26] I do. 

Dr. Bill Kanasky [00:26:26] And if anyone reads it, yeah, you may be surprised. They may be reading after this. Tell us about the blog and what and what types of things your posting. 

Charlie Price  [00:26:42] Yeah. So it was it started as sort of a companion to my class called winning before trial and I post articles, it's winning before dropping is like separating you from the robot lawyers. And what I'm trying to do is just what I want people to do is, you know, if you think about the practice of law, you know, we've we're a profession that honors precedent. We adhere to what has happened in the past. And if we started today from scratch and we have all these competitors, each clogged dockets, these overworked judges, we have all this science that you know what you do, that's more available to us. If we started today, we would do it differently than we did 50 years ago. And so, yeah, but we do it the same. And so the challenge there, if they try and write articles to get people, hopefully somebody just thinks and says, Yeah, I never I never thought about. Doing it a different way. I'm not saying I'm right about everything, I'm just saying that there are things that we do that don't make sense. And one of them is not understanding, not bringing in people like you or CSI to explain the basic psychology of communication and what your jurors are thinking. It's science, it's there. So it's stuff like that. 

Dr. Bill Kanasky [00:28:00] That's terrific. So it's winning before trial. What we'll post that below this episode when we post the episode and I'll be there, I'll be on my favorites bar to make sure I'm up there. And if if you need any, if you want, if you want to quote me on something, feel free to. This has been a great episode, Charlie. Thank you so much for coming on. 

Charlie Price  [00:28:21] Can I ask you one question? 

Dr. Bill Kanasky [00:28:22] Yes, please. 

Charlie Price  [00:28:23] I'd like to end on a question for you. You from where you said you work with all these, all these different law firms and all these different companies. And if you are if you're at a company that has, you know, litigation coming in over and over and you know, what would be your advice about how an in-house law department or how our firms can get better like tomorrow and start? What should we be thinking about as a company? 

Dr. Bill Kanasky [00:28:51] Being aggressive early in cases. The number one thing you can do because that's what your adversary is doing, right, if you're on the defense side. And so the top thing that we preach, in fact, we have a new set of services that I'm speaking around the country on and we're already implementing that. We call pre litigation services pre litigation because we had companies and firms calling us saying, Listen, why are we waiting until a case is filed to be prepared for litigation? Why can't we start? We know who are the key witnesses are going to be in most of these cases, we know who are corporate reps are right. We should have a system ready to go. So when the case is filed, you know, we're starting at the 50 yard line, we're not starting at our own 20. And so that's what's really we've been doing here the last couple of years. And it's exploding. It's exploding almost too fast because my phone keeps growing because everybody wants to get on board with this because they have figured it out. You know, investing time, energy and money in prevention has a huge cost savings on the back end number one, but also gives you a nice strategic advantage because what you don't want to do as a defendant, I'll tell you this and this has happened and I won't name the companies, but I know who they are. They're viewed by the plaintiff's bar as an ATM machine. Right? Hey, I need some money. I know exactly who to go to because they're going to pay me. They're not prepared. They're not going to go to trial and they go in. They put in their password and they get their money. And I think if you have that reputation as a company or an insurance company or defend that, you know, they're going to keep doing that and taken advantage of it. So I think what we're trying to pioneer here is a movement of very, very early, proactive preparation, which is going to take time, money and energy that's going to have an extraordinary impact on the back end because the adversary is banking on, I mean, betting the farm that the defendant won't be ready, that they will not have been proactive and that they will they will have the lead for the entire game. And that's going to that's going to turn out to financially really pay off for them. 

Charlie Price  [00:31:09] And probably less trial experience, too, so where you went when you weighed into trial, they may have tried 10 percent of the cases that the plaintiffs bars tried. Dr. 

Bill Kanasky [00:31:20] Yeah. And then the players need the bars. Like why in the world would I settle this case for a reasonable amount when I know I've got you, I've got you eight out of 10 times in front of a jury. I've got you. Why in the world? I mean, those are you roll the dice on that, right? And so that's kind of what we're preaching on this. And I think it's a so far so good. I'll be speaking with John Nunnally IDC, and you'll be there and we'll talk. We'll talk about that. We'll talk about and go over the causes of nuclear verdicts and things like that. But I have the final question because I'm the host, so you can't get the final. OK, I have got a final question. All right. Halloween Day one o'clock. Pittsburgh At Cleveland, Cleveland lay in three and a half points. I want your score. 

Charlie Price  [00:32:10] Cleveland Browns are going to take it. We're going to take it. Thirty three, twenty four, 

Dr. Bill Kanasky [00:32:15] Thirty three to twenty four. I like that and that's easily covering the spread. Thirty three. Twenty four. I'm all over that. Go Browns. Charlie, thank you so much for being on the podcast today. I'm sure we'll be in touch regularly. Contact me if you need anything. 

Charlie Price  [00:32:32] Yeah, you do the same. I was an honor. Thanks, Bill. 

Dr. Bill Kanasky [00:32:35] Thanks. Take care. And for everybody that's listening and watching. Thank you for participating in another episode of the Litigation Psychology podcast brought to you by Courtroom Sciences. See you next time!