Texas

104 – Jamal Alsaffar – Sutherland Springs: The Untold Story of a Foreseeable Tragedy

Warning: This episode contains details of the Sutherland Springs massacre. Portions of the show will cover issues of domestic violence, gun violence, and content that may be disturbing to some listeners. Listener discretion is advised.

This episode is dedicated to the memory of all those whose lives were taken in the Sutherland Springs massacre, the survivors, and their families.


In this episode of the Trial Lawyer Nation podcast, Michael sits down with trial lawyer Jamal Alsaffar, who served as lead counsel representing the victims of the Sutherland Springs massacre vs. the United States Government, obtaining a $230,000,000 verdict.

They begin the episode with a look at Jamal’s background. Born and raised in Dallas, Texas, he moved to Austin to go to college, where he met his now wife and law partner. Today they are both partners at National Trial Law in Austin, Texas, along with Jamal’s mentor, Bill Whitehurst. Jamal has tried numerous personal injury cases involving medical malpractice and catastrophic injury but has found a rare specialty in Federal Tort Claims Act (FTCA) cases.

Michael then quickly asks Jamal how he got started in FTCA cases, as it is notoriously difficult to sue the federal government. He shares how his first FTCA case was a birth injury case at an Army hospital. Even though he had many hoops to jump through, he ended up obtaining a very favorable verdict and realized that military families weren’t receiving high level trial lawyer representation in their cases. From there, his practice spread, and now he tries FTCA cases all over the country.

As Jamal lists the many requirements to try FTCA cases, it’s clear why there are so few lawyers who specialize in them as they are fraught with land mines.

The tone shifts somber as Michael asks Jamal about what happened in the Sutherland Springs shooting. He describes how on November 5th, 2017, a former Air Force member walked into a small church in Sutherland Springs, Texas, where he opened fire. 26 members of the congregation were killed, and 22 were injured. While this man was in the Air Force, he was convicted of multiple felonies involving domestic violence and put in jail. Federal law requires that the agency who convicted him report the felony to the FBI’s background check system, but the Air Force did not. Because of this, the shooter was able to legally purchase firearms and ammunition at Academy Sports, which he used to commit mass murder.

Diving into the legal difficulty of a case like this, Michael asks Jamal what legal challenges he faced with holding the federal government liable on tort liability for someone failing to report criminal convictions. Jamal shares how they faced a 12(b)(6) motion to dismiss on this issue, and the government’s defense was they cannot be held liable for this failure to follow federal law. But as Jamal successfully retorted, of course they can.

As Jamal puts it, at the end of the day, they didn’t have an excuse for not reporting this felony. In fact, as they learned in discovery, this was not a one-time clerical error. There was a documented 30-year history of the federal government not reporting felonies to the FBI’s background check service on a massive scale. Various internal warnings noted between a 30-50% failure rate, which was even worse at the base the shooter was stationed at in New Mexico – where many employees didn’t even know they were required to report. This was clearly a systemic problem which had been going on for a very long time.

“What we found was a 30-year history of the federal government not reporting on a massive scale.” – Jamal Alsaffar

Michael asks if the government has since done anything to fix this problem, to which Jamal replies with two powerful examples:

  1. In the Air Force alone, there were over 5,000 unreported felons. As a result of this litigation, all 5,000 of those have now been reported.
  2. The entire system of reporting and checklist system has now been automated and modernized for every branch of the military. They now use the system Jamal’s expert recommended.

Reflecting on those successes is momentous – as trial lawyers, we often think about the good we’re doing for one family, but it’s so rare to have the opportunity to tangibly make the entire country a safer place.

The next issue the government tried to fight on was foreseeability. They argued they could never have foreseen this man would do what he did. Jamal explains how they were lucky with the evidence, but it wasn’t magic – this was gumshoe work and discovery. After being stiff armed so aggressively that they wouldn’t even give Jamal mandatory disclosures, the judge became so angry with the U.S. attorneys he sanctioned them (without Jamal even asking) and ordered they provide the documents and witnesses requested.

“The level of negligence and how high it went … all the way up to the Secretary of the Air Force.” – Jamal Alsaffar

It was immediately clear why the U.S. attorneys tried to hold onto this information. The contents of these documents were appalling.

  • The shooter’s violence was documented, and his domestic violence crimes were committed with guns.
  • He had been institutionalized by the Air Force for mental health twice, including for trying to use a gun to kill himself.
  • While in the mental hospital, his computer searches included “how to commit a mass shooting” and “how to get weapons”, and the government knew about those searches.
  • He had threatened to commit a mass shooting on the base, to his superior commanders,

This man was institutionalized by the Air Force while he was threatening and planning to commit a mass shooting.

Michael then inquires if the shooting was random, or if the man knew people at the church. The answer is haunting – it was not random, but an act of domestic violence. It was the church his wife grew up in, and where she would go to escape him.

“It was not a random act. It was related to the very thing the Air Force convicted him of and failed to report on.” – Jamal Alsaffar

Michael then asks Jamal how he became the lead attorney on a massive trial team filled with heavyweights. The answer lies in one of Michael’s first questions: “What on Earth is the FTCA?” Jamal is one of only a handful of attorneys who try these cases regularly, but he also credits his communication, honesty, and preparation. He had an air-tight plan before he even filed the lawsuit, then meticulously drafted complicated pleadings where even a small mistake could ruin the case. But even with his vast FTCA experience and knowledge of how these cases work, he admits he had never tried a case like this before – in fact, only a few people have, and never at this magnitude.

“This is one of the most unique trials that’s ever been done in the history of the FTCA.” – Jamal Alsaffar

One big decision Jamal and his partner, Tom Jacob, made was to not depose any of the government’s experts. They knew the government wouldn’t settle, so there was nothing to be gained from taking a great depo. They did file one partial summary judgement, but they intentionally kept out some real bombshells they found in discovery and strategically saved them for trial.

As a result, they were able to surprise the judge with 2-4 new documents or facts he had never seen each day of trial that were “eye-popping.” As Jamal shares some of these, it’s easy to see why saving them was the right call. As the U.S. attorneys tried to defend themselves by saying this man was simply a monster, Jamal made it clear they knew this man was a monster and did nothing to stop him from harming the public, even after they banned him from accessing military bases and upped his security risk after he tried to access them anyways.

“He was a monster that you knew better than anyone else … even his family. And you let him loose.” – Jamal Alsaffar

Jamal continues by lamenting the fact that the judge only let him use one of his carefully crafted trial boards, but the timeline he was allowed to use showed a detailed progression of the shooter’s madness, aggressiveness, weapons purchases, and where he would have been caught and prosecuted if his felonies had been reported. It was a fantastic visual aid Jamal agreed to share with our listeners and can be found below.

Included in this timeline was one of the most shocking pieces of evidence in the entire case, which Jamal found by mining for third party discovery. The sheriff’s department had responded to a call at the shooter’s residence just 3 days before the massacre took place, where the exchange was caught on their body cameras. Because the man was acting aggressive and erratic, even threatening the cops, they looked him up in their database – where they found no record of his felonies because the Air Force didn’t report them. In this exchange, the man had a gun and stated he was armed, which he would have been arrested for carrying if the officers were able to see his felony conviction record.

Michael then asks how the trial was broken up. Jamal explains how the liability trial and damages trial were conducted separately. The liability trial took about 1 ½ months, but they had to wait another 2 months for the verdict. After the judge found the government to be 60% liable, he tasked Jamal’s team and the U.S. attorneys to get together and decide how to present this case efficiently. The result was an estimated 1-month trial for Jamal’s team, but an estimated 6-month trial for the U.S. attorneys. The judge decided to put faith in Jamal and agreed to a 1-month damages trial.

With so many plaintiffs and the delta variant spreading rapidly, Jamal had some challenges to overcome if his 1-month damages trial was going to be successful. He had to limit each plaintiff in the case to 1 hour of testimony, which required immense cooperation and preparation with his many co-counsels. To stave off the government’s fear of a Covid outbreak in the trial, Jamal even set up a Covid testing room in the courthouse, where each witness was required to test before entering the courtroom.

During the damages trial, Jamal shares some of the terribly heartbreaking stories told and how he used the actual courtroom to tell them, in lieu of the visuals he originally had planned. He tells a profound story of a realization he had one day, while sitting where the massacre took place and preparing mentally before trial. It’s a phantasmal story you have to hear in order to understand why every time the courtroom doors opened … people were on edge.

Part of the reason Jamal put so much effort into the verbal description is because he did not want to show the video of the shooting or the aftermath in the trial. After stating repeatedly to the government he would not submit the video into evidence, it was shockingly the government who moved to have the video entered the day before trial. And even though Jamal rejected it, the judge agreed to admit it because it is evidence. Jamal then asked for the video to not be shown to the media or the family members and placed under seal, which the judge agreed to.

The government may have thought Jamal would want to show the brutal carnage at the church, but that was never something he considered. Instead, Jamal chose to use stills from the video to show the scene right before the shooting. Describing this loving space, the joy, and the sense of community, “the second before it turned to hell,” Jamal’s remarkable skill to visually tell the story with his words will surely bring a tear to your eye.

After sharing more examples of the other evidence used in the case, Jamal highlights how important it was for the judge to understand the sights, the sounds, and the smells of that day. He deftly narrates the poignant scene when each plaintiff and witness spoke on the stand, shared what they saw, and verbalized their pain. With each testimony, the damages case came together for the judge.

Once the trial concluded, the attorneys had to wait patiently for the verdict for MONTHS. Jamal says the liability verdict is more stressful than the damages verdict and shares the very moment he read the result – a historic $230,000,000.

Broken down, it’s a reasonable amount for each plaintiff based on the standard for deaths and injuries. This way, the verdict is much less likely to be appealed, though Jamal admits he wanted more. He praises the judge who handled the case and includes his well-researched, well-founded opinion which will be tough for the defense to overturn on appeal.

Jamal and Michael wrap up the episode with a look at how background check laws work and how successful the program is when agencies report felonies to the FBI as required. This foreseeable tragedy should never have happened – and thanks to the work of Jamal, all of his co-counsel, and everyone who worked on this case, it will hopefully never happen again.

Resources provided by Jamal Alsaffar:

 

Guest Bio:

Jamal Alsaffar is a partner at National Trial Law in Austin, Texas. Jamal represents victims of catastrophic injuries across the state of Texas and has a national practice prosecuting cases against the Federal Government under the FTCA (Federal Tort Claims Act). Jamal and his partner Tom Jacob recently obtained a $230 million verdict against the federal government for their role in the largest mass shooting in Texas history that took 26 lives and injured 22 others at the Sutherland Springs First Baptist Church. Jamal has chaired AAJ’s Federal Torts practice section several times over the past decade, and has served as co-chair of the AAJ MedNeg/Birth Trauma group. He has been selected as one of the 20 “Leading Lawyers” in Texas under the age of 40—way back when he was under the age of 40. And has been named by his peers as a “Super Lawyer” consecutively from 2014-2022. Jamal soon hopes to be hired for his dream job—a perfect fit as he’s been telling anyone who will listen over the years—the next manager for Manchester United football club in England. He has three kids with his wife, law partner and boss, Laurie Higginbotham.

 

78 – Randy Sorrels – Masked Justice: Part 4

In this episode of the Trial Lawyer Nation podcast, Michael sits down with former President of the State Bar of Texas, Randy Sorrels for another installation of our Masked Justice series. Randy recently tried an interesting case where he represented the sons of two former professional baseball stars and received a $3.25 million verdict. They’ll cover that recent victory, how this trial was different from a pre-COVID trial, what it’s like representing famous clients in high profile cases, Randy’s service to his clients, and more.

They start off the episode by digging into Randy’s background. As a defense lawyer at a large firm early in his career, he was able to gain experience trying cases quickly after law school. That experience has proved invaluable since transitioning to exclusively plaintiff’s work, and he notes some interesting differences between how a plaintiff’s lawyer and a defense lawyer try a case. He then sums this up by stating, “Trials always happen because one side mis-evaluates the case. I’ve been on both sides of that.”

Michael then transitions the conversation to Randy’s recent trial verdict, and Randy starts by sharing the facts of the case. His clients were two minor league baseball players, who just happened to be the sons of former professional baseball players (and close friends) Roger Clemens and Mike Capel. The two young men were at a high-end bar/night club on New Year’s Eve of 2018 when they were brutally attacked by a bouncer and, Randy claims, the owner of the venue. After a “scuffle” which neither of the men were involved in broke out, they were both violently thrown out of the bar, causing Kacy Clemens injury to his throwing elbow and Conner Capel a fracture to the skull. But more importantly, they both suffered tarnished reputations for “being in a bar fight,” something the MLB does not take lightly.

Randy was hired on the case almost immediately, leading Michael to ask what he did to preserve evidence. He shares how the police attempted to preserve the security footage from the incident, but after a suspicious interaction with the owner, they were informed the cameras only live stream and do not record. Luckily, video of the incident had been captured on cell phones from patrons. This footage was the evidence needed to prove neither of the men were involved in the fight.

Michael then digs deeper into the mechanics of Randy’s COVID-era trial, which was held in person in Harris County, Texas. Randy explains how they selected the jury in a large convention center and how the judge did an excellent job with maintaining a safe environment for everybody. The courthouse setup placed the jurors where the audience usually sits and placed the witnesses in the jury box. If you stood up, you had to wear a mask- something Randy avoided doing for the first couple days of trial, but once he stood up with the mask on, he noticed jurors were paying better attention than when he was seated and mask-less.

Randy then discusses why he does not believe there was a negative effect on the jurors with Covid safety protocols, and though he was initially concerned the jury pool would lean conservative, it ended up being a very diverse and representative jury. And while this trial was far from “normal,” Randy is very satisfied with the $3.25 million verdict he received for his clients and was highly impressed with Harris County’s system for in-person trials during the pandemic.

Aside from the unusual circumstances surrounding the trial brought on by the pandemic, Michael is curious as to how you convince a jury to award a professional athlete’s son a 7-figure verdict. Randy explains how it was a challenge, especially because both clients were working within 10 days of the incident, but in the end it worked out. In fact, Roger Clemens’ testimony was especially powerful to the case. Randy shares an amazing story of what happened when the defense attorney tried to grill Roger about allegations of steroid use, but ended up saying, “I’m a huge fan, and you’re a hell of a baseball player.”

This wasn’t Randy’s first rodeo representing a famous client. Early in his career, he also represented Ozzy Osbourne after he was rear-ended in a taxi in Houston (something that left Michael star struck)! While his whiplash injury was seemingly minor, Randy explains how it turned into a fairly large case because Ozzy had to cancel 3 shows for the most rockstar reason you’ve EVER heard. This story is a must-listen for metal fans and legal enthusiasts alike!

Randy also explains how important service is to him through his time as the State Bar of Texas President, a mostly unpaid position which he served in for a year. He believes interacting with lawyers on both sides has made him an even better trial lawyer today, and helped give him the state-wide notoriety to start his own firm, Sorrels Law. Michael also points out how Randy will share when he gets the policy limits on a case with a $30,000 policy limit. But Randy explains why those cases are still important and deserve representation, something he’s happy to give them.

The pair end the episode with another unbelievable story from Randy’s most recent trial, involving a lovable defense witness with a hidden secret. This really is one you need to hear to believe!

This podcast episode also covers why Randy was hired so quickly on the Clemens case, a creative place to search for footage of a crash, the safety precautions taken by the court, whether or not you should conduct jury research before a trial, why big verdicts are good for all plaintiff’s lawyers (even if it’s not your own), and so much more.

If you’d like to speak with Randy Sorrels you can email him at randy@sorrelslaw.com or call his cell phone at (713) 582-8005.

 

Guest Bio:

Randy Sorrels is the Immediate Past President of the State Bar of Texas, which consists of almost 105,000 lawyers. Texas lawyers voted him to this position by the widest margin of victory in State Bar election history. As a Texas lawyer, Randy has also been named one of the top 100 lawyers in Texas for the last 14 years by Texas Super Lawyers magazine.

Randy holds five board certifications from the Texas Board of Legal Specialization and the National Board of Trial Advocacy. He has extensive experience handling personal injury cases, medical malpractice cases, and business disputes – including “bet the company” cases.

Most recently, Randy has been named the Best Lawyers® Medical Malpractice Law – Plaintiffs “Lawyer of the Year”, in Houston, and this is his third time for him to receive this honor. He has also been awarded some of the highest legal honors in Texas. He has been awarded the State Bar of Texas’ President’s Award (recognizing the one Texas Lawyer who provided the most outstanding contributions through distinguished service to the lawyers of Texas), the Judge Sam Williams Award (recognizing the Texas lawyer who provides the greatest contribution to both local bars and the State Bar of Texas), and the Houston Bar Association President’s Award (recognizing significant contributions to an HBA program). Early in his career, Randy was honored with the Woodrow B. Seals Outstanding Young Lawyer of Houston Award (recognizing the one young Houston lawyer who exemplified significant professional traits both inside and outside the practice of law).

 

68 – Chris Madeksho – Masked Justice: Part 2

In this Trial Lawyer Nation podcast, Michael sits down with another trail blazing trial lawyer, Chris Madeksho. Chris recently received a $13.9 million jury verdict on a Mesothelioma case tried in person using social distancing and other safety measures. They discuss Chris’s background, the details and challenges of the case he tried, the safety measures taken, and the numerous strategies Chris used to win this fantastic verdict in the age of COVID-19.

Chris specializes in toxic tort and was introduced to the area by his late father, who worked in asbestos installation when he was young and went on to become a trial lawyer. He began his practice in Texas, but later moved his principal office to California due to Texas tort reform. As most great trial lawyers do, he then attended the Trial Lawyers College and began learning from the other great trial lawyers and scholars in the arena, citing Sari de la Motte, Eric Penn, Nick Rowley, Keith Mitnik, and R. Rex Parris.

Michael then asks Chris about the details of the case he tried. Chris’s client was a 68-year old Mesothelioma patient who worked as an asbestos installer from ages 9 to 19. Because of some criminal details in his background, Chris was forced to drop the loss of consortium claim and only request damages in personal injury, BUT was still awarded $13 million in non-economic damages alone.

With this impressive verdict, Michael asks Chris if the defense wanted to try the case or not. Chris responds with a resounding, “No.” In fact, they even opposed Chris’s waiver of jury when he attempted to get a bench trial. So Chris pushed forward, complied with the judge’s orders, and was completely prepared for trial when the time came.

Chris then explains how the jury summons and voir dire process was handled safely. The summonses were sent out via email and included COVID-19 hardship questions. He shares how we know our most dangerous jurors are people who are not afraid of COVID-19, but our second most dangerous jurors are people who are there who don’t want to be. Eliminating people who don’t want to be there was very helpful in that respect.

But, a jury summons by email has its downfalls. The biggest being that the demographics of the jury pool were not representative of the populous. The resulting jury was more affluent, more connected with technology, and more conservative than a typical King County jury would be. But as Chris puts it, “When you have a client who’s going to die if you don’t try the case now, you just do the best you can.”

After summoning the jury pool, voir dire was conducted mostly through Zoom with only two panels attending in person due to security concerns. These in person panelists were separated by a 6-foot spacer and their voir dire took place in a convention center to allow for safe distancing. While Chris believes he connected better with the in-person panelists, the resulting jury ended up being comprised of 14 virtual panelists and only 1 in person panelist.

The pair then move on to discuss Chris’s storytelling strategy. Chris explains how he’s worked extensively with Sari de la Motte and employed many of her Hostage to Hero strategies to craft his opening and closing arguments. He also emphasizes the importance of being “at ease” when speaking to the jury with a mask on. He shares the perfect analogy of being in a dark room where you can only see the other person’s eyes – you’re going to focus heavily on what you can see, so your eyes need to appear honest and relaxed.

Chris’s opening also focused heavily on the conduct of the defendant, a story he told by choosing the “villain” to be a corporate representative who is still alive. He decided to use her as the villain because she is more tangible to the jury than someone who may have done a lot of harm, but isn’t alive to pay for their wrongdoings. Chris and Michael then have a very insightful conversation on if the villain needs to be a person, or if the villain can simply be the organization as a whole – a subject discussed on this podcast in the past.

Michael then asks about how Chris told the damages story at trial, which Chris boiled down to “This is a man who worked his entire childhood. Now that he’s in his final days, he’s living his childhood for the first time.” He then shares how this powerful story was made stronger by getting the defense doctor to share the horrors of Mesothelioma – a useful strategy which every listener needs to hear.

The pair ends the episode with the defense’s shocking (and unsuccessful) closing argument. The defense lawyer basically said, “A lot of people are going to be dying painful deaths in this COVID era. They’re not getting any money.” As he said that, the jury set their tablets down and nobody wrote for the remainder of his argument. Chris agrees to share the transcripts for the full details, but the defense effectively ostracized themselves from the jury at this exact moment. While plaintiff lawyers everywhere have been concerned about this being used successfully against them, Chris’s experience shows it was ineffective.

If you’d like to reach Chris Madeksho, you can email him at cmadeksho@madeksholaw.com or visit his website at www.madeksholaw.com. He’s been kind enough to make himself available to speak with any plaintiff attorney who’s looking to get back in the courtroom and wants to learn from his experience.

This podcast also covers the intricacies of asbestos cases, the importance of putting your family first, working through personal issues with clients, Chris’s courtroom layout, trusting the jury, Chris’s advice for trial lawyers who want to improve, and so much more.

 

Interested in hearing more COVID Era trial stories? Check out our other Masked Justice episodes:

 

Bio:

Chris is licensed to practice law in three states – Texas, California and Washington State, and he has a national reputation for managing asbestos and other toxic torts. He has represented mesothelioma and toxic injury clients in courtrooms from New York to California, and from the Midwest down to Texas.  Chris is a graduate of the nationally-renowned Trial Lawyers College and is a fluent Spanish and French speaker.

In addition to trying cases for victims of cancer and toxic torts, Chris routinely tries cases pro bono for low-income families facing eviction in the Los Angeles area. He participated as trial counsel and adviser to tenants in the largest rent strike in Los Angeles County history. The tenants prevailed in their strike and the landlord eventually dismissed his eviction lawsuits after losing several trials. Helping his community is a passion for Chris.

Outside of work, you’ll find Chris spending time with his family — they especially enjoy gardening, exploring the outdoors, making music, and enjoying good food together. Chris’s dream is to eventually use his time and resources to reforest American ecosystems.

 

60 – Matthew Pearson – A New Era: A Look Inside the First Zoom Jury Trial

In this Trial Lawyer Nation podcast, Michael is joined by Matthew Pearson, the plaintiff’s lawyer in the highly publicized first Zoom jury trial in the country. They discuss the trial in detail including how Matthew’s case was selected, how a summary jury trial works, the jury selection process, case presentation, and what (if anything) Matthew would do differently.

The episode begins with a discussion of Matthew’s background and how he became involved in the nation’s first Zoom jury trial. He specializes in first party insurance cases in construction defect from the property owner’s side. Michael notes this is different from most of his other guests, but Matthew identifies some parallels in what he does with other plaintiff’s lawyers.

The case he tried by Zoom involves a commercial building hit by a hailstorm in Collin County, Texas where the insurance company did not want to pay out the claim. As part of Collin County’s ADR process, the parties must hold a summary jury trial before they are allowed a full jury trial. The goal is for a settlement in mediation after the summary jury trial. Matthew’s summary jury trial was originally set for July, but he was asked (or “volun-told”) to move it forward to May 18th and do it virtually. He was a little nervous, but excited overall for the opportunity.

Michael and Matthew then briefly discuss how a summary jury trial is nonbinding and has far less rules than a full jury trial. Each side has an hour and a half to put on their case, then the jury deliberates and comes back with a non-binding verdict. Both sides can then ask the jury questions about the verdict and their deliberation. Matthew finds this approach to be a great opportunity for feedback and to identify areas to improve should the case go to full trial.

Diving right into the jury selection process, Matthew describes how typically in a summary jury trial the mediator will select the jury and only dismiss jurors “on the fringe” of either side. When the court noticed the publicity surrounding this Zoom trial, they decided to give each side 15 minutes to do voir dire (on the Friday evening before the Monday trial no less). Michael asks Matthew how a Zoom jury would do things like raise their hands when asked a group question, a process Matthew describes as “The Brady Bunch on steroids.”

The conversation continues with a look at case presentation. Michael asks if Matthew presented his case differently than he would in an in-person trial. Matthew says he tried to go about it like a regular trial as much as possible. He typically uses PowerPoint for his opening, which worked perfectly for the virtual presentation. He utilized Trial Director software to talk the client though evidence and instructed his expert to use PowerPoint to present key documents as well. The expert also used a digital pen to circle key points and blew up pictures as he presented. Michael notes he typically tries to avoid using too much PowerPoint during trial but agrees it would be necessary when presenting virtually.

The importance of building strong group dynamics in a jury has been discussed in the podcast often. Is it possible to create group bonds when everybody is sitting in their own homes? Matthew notes it wasn’t vital for a one-day non-binding trial but agrees this would be difficult for a week-long trial. He describes how the jurors ate lunch by themselves and when the day is over, they just turn off their computers without interacting with the rest of the jury (it would be improper for them to communicate via phone once the day is over).

Whether a strong group or not, the jury did deliberate for 30 minutes and reached a unanimous verdict. Matthew was pleasantly surprised by the fact they found his expert to be credible, even over Zoom. Leading both to agree on the huge cost savings down the line if trial lawyers no longer needed to pay for experts to travel to a trial.

In Matthew’s case, the damages were all economic. Looking at it from a personal injury perspective, Michael worries about jurors’ ability to assess pain in a virtual trial. He gives an example of people who are more moved by a 30-minute TV show than they are by most trials and sees an opportunity for a new group of consultants to emerge from this. An interesting comparison to Saturday Night Live is mentioned that you have to tune in and hear in order to fully appreciate.

Now for the big question: Would Matthew do a Zoom trial if the result was binding? He’s not so sure if he would. While this experience went very smoothly, it was only a one-day experiment. All the jurors were able to find a quiet place without interruptions and they had no technical issues. If this was a full-blown trial it would go on for much longer. He’s also not confident the results could be replicated for such a large endeavor. And has doubts a jury could go through so much evidence and make a decision based off the evidence virtually. Michael and Matthew discuss possible solutions to this but agree this would be a huge concern.

They close off the episode with Michael asking, “Would you do anything differently?” Matthew replies he would present the same way, with an opening, putting on witnesses, and a modified closing. But he would change his use of technology. He urges listeners to have at least two screens set up and to leave the jury on one screen for the entirety of the trial to monitor their reactions. He would also have his paralegal join to help control documents, like he would in a regular trial. Lastly, they both agree while they are very hesitant to hold a binding trial via Zoom, they may be forced to if this goes into 2021.

This podcast also covers jury engagement, body language, whether Zoom trials can provide a representative jury pool due to the technology involved, the importance of trial consultants, how to share lengthy exhibits with jurors, Matthew’s appearance in Sari de la Motte’s Hostage to Hero Facebook group, and more.

If you’d like to reach Matthew to discuss his virtual trial experience or discuss a case with him, visit his law firm’s website at pearsonlegalpc.com or email him at mpearson@pearsonlegalpc.com.

 

Bio

Matthew Pearson is the founder of Pearson Legal PC based out of San Antonio, Texas.  He has over 25 years of experience litigating matters in federal and state courts throughout Texas and the United States.  He has extensive experience in cases involving insurance law, construction defects, business disputes and employment law, and has earned a reputation for successfully representing his clients in the courtroom.  Mr. Pearson was recognized by Verdict Search for receiving the largest insurance verdict in Texas two years in a row. Verdict Search also recognized Mr. Pearson for receiving the fifth largest contract dispute verdict in Texas and the second largest employment verdict in Texas.

Mr. Pearson is Board Certified in Civil Trial Law and Personal Injury Trial Law by the Texas Board of Legal Specialization.  Mr. Pearson also writes articles and frequently speaks on insurance and construction law issues.

 

57 – Sonia Rodriguez – The Digital Frontier: Technology, Roadblocks & Creative Solutions

In this Trial Lawyer Nation podcast, Michael sits down with his law partner Sonia Rodriguez. They discuss pushing cases during COVID-19, educating the defense and clients on Zoom, the increased need for technology in law firms, finding creative solutions, the effect of the pandemic on jury attitudes, and strategies to safely return to the office.

The discussion begins on the topic of pushing cases and overcoming defense delay tactics during COVID-19. Sonia emphasizes the need to continue to move cases, even if you’re met with objections from the defense, saying “The wheels of justice don’t come to a complete halt.” Sonia suggests offering a clear, transparent proposal for technology to the defense prior to depositions. Fellow Cowen Rodriguez Peacock attorney Jacob Leibowitz has created guides for Zoom for Depositions and Zoom for Mediations which have been helpful in easing uncertainty surrounding this new technology. Michael has also found success in offering practice sessions to the defense counsel, noting that this works well when people are acting in good faith.

Unfortunately, not all defense attorneys are acting in good faith with their objections to this technology and will try to drag the case out. In these situations, Sonia encourages attorneys to file a Motion to Compel Deposition. She has found success in this because courts in Texas have been utilizing the technology themselves. This makes it hard for defense attorneys to suggest depositions by Zoom aren’t appropriate when the hearing may very likely be held by Zoom. Sonia and Michael agree that it’s in every firm’s best interest to keep their cases moving during COVID-19 and to find creative solutions to problems which may arise.

The conversation shifts to a discussion of preparing clients for Zoom depositions. Sonia insists the process isn’t much different, other than a loss of “relationship feel” between the client and the attorney during deposition prep. The important factor in this is ensuring you create a comfort level for your client that makes them feel prepared.

Sonia and Michael agree the biggest roadblock they’ve faced regarding client preparation is a lack of available technology for the client. Many clients do not have a laptop, Wi-Fi, or a room where they can sit privately and quietly for a 3-4-hour deposition. Their firm has mitigated this issue by sending tablets to clients who need them and emphasizing technology training during deposition prep. They note that this strategy does not always work, and some depositions will inevitably need to be delayed until we can meet in person again. The underlying goal is to keep 95% of your cases moving.

Michael and Sonia move the conversation to the overall increased level of understanding regarding video conferencing technology like Zoom. Sonia describes her experience with sharing exhibits through Zoom, and her trial and error of doing so. She’s noticed how advanced the knowledge of this technology is for many court reporters and mediators and has learned through their advice as well. She then shares a story of when she served a witness with a Zoom deposition subpoena. She expected a lengthy process of explaining the technology to the witness, who shockingly replied that she was well-versed in Zoom through her children’s virtual school courses. Michael notes that he doesn’t know how enforceable a Zoom deposition subpoena would be, but again emphasizes the goal to move 95% of cases and save the rest for when we return to normal. Sonia echoes this by explaining the duty we have to our clients to move cases and represent them earnestly. While we cannot guarantee their trial date will go through, we can guarantee we are continuing to work on their case.

Michael makes the point that we all only have a given amount of energy to spend in the day. While it’s easy to get caught up in things outside of your control, it’s crucial to not let this suck up your energy. He emphasizes the importance of spending your energy on what you can control right now- moving your cases. Sonia agrees and adds that as trial lawyers, we are wired to be creative and tackle the unexpected in our cases and in the courtroom. She shares a brilliant example of this comparing today’s landscape with an elmo projector.

There has been much speculation around how COVID-19 will affect jurors’ perceptions in the long run. In Sonia’s opinion, this will depend on the economic situation once juries come back. If people have been out of work and cannot afford to be there because of their economic situation, this will not be good for the plaintiff’s side. She believes if the economy can stabilize, jurors may feel a heightened sense of civic duty and comradery around rallying on a jury. Michael has hesitations about trying a case where the jurors feel endangered by being present, but has a positive outlook on the long term effects, stating “Americans have an incredibly short memory.” He notes the worries of juror perception after events like 9/11 and the 2008 financial collapse, which had no long-term negative effect.

Sonia and Michael conclude with a discussion of how and when firms will begin to gather in a physical office space again. Sonia says our top priority needs to be to keep our clients and our families safe. Michael shares his hesitation to open too quickly by saying, “We sue companies for putting profits above people” and we should hold ourselves to this same standard.

This podcast also covers ethical concerns with virtual depositions, when to provide hard copies of exhibits in virtual depositions, bench trials via Zoom, overcoming technical issues, and much more.

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