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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.

 

51 – Malorie Peacock – Preparing Yourself and Your Case for Trial

In this Trial Lawyer Nation podcast, Michael Cowen talks with his law partner Malorie Peacock to discuss trial prep. Trial prep has been a topic many of our viewers asked to hear more about, so this episode covers everything from file organization, to witness prep, opening and voir dire, visuals, your exhibit list, and the mental toll trial can have on you personally.

To begin, Malorie starts with how important it is to be organized. She begins her organization process 30 days out by putting her exhibits together, printing out the jury charge and witness list, then looking at everything and thinking about the game plan. Her goal from there is to create a 1 or 2 page “order of proof for trial” with exhibits, list of witnesses, and the key points to be made in the trial. Michael agrees and shares a common mistake he sees a lot of lawyers make when they “put every possible piece of paper from the case on their exhibit list.” He suggests lawyers ask themselves: A) is this an exhibit necessary for the jury to see, or B) do I need this to protect the record? Then review how many exhibits you have and what is their order. “If the focus of your case is trying to get the medical bills in your case, then your first exhibit is a summary of all of the medical bills and the medical treatment in the past … so the jury knows when they open the binder ‘this is what we’re focusing on and this is the focus of the case.’” Malorie continues.  Michael also shares how he organizes his complete list of exhibits on his laptop, so if at any point in trial he needs to pull up an exhibit on the fly he can quickly find it.

It takes a lot of time and energy to write a good opening and prepare for voir dire. Which is why Michael and Malorie discuss how changes in your story throughout a case, can affect the opening and voir dire work you do early on. Michael gives an example of this on a case he will try in February with Malorie. Months before trial they worked with a consultant on the case, had a theory on the case, graphics already prepared, then after they developed all of the evidence they decided it wasn’t the best story to tell. Creating a new story and theory may be extremely difficult to do after investing lots of time, money, and energy, however it’s an important part of the trial preparation process.

Which leads to a conversation on storyboarding, creating visuals, and how Sari de la Motte helped Michael rethink his use of the phrase “a simple case” when talking to the jury and using visuals. Malorie brings up just how important it is to tell your witnesses where they should be looking when they answer questions. We as attorneys may think it’s obvious a witness should talk to the jury when answering a question, but in reality it’s normal for you to look at the person you are talking to. “I think people believe that trial lawyers are natural public speakers, but if you’ve ever been to a conference you know that’s not true,” Malorie explains. You might think “it’s only 12 people,” but when your entire case relies on those 12 people, on a really important matter, and your client is watching you, the nerves start to creep in so you have to practice. And practice does not apply simply to speaking, Michael shares his reasoning for adding several solid black slides in his PowerPoint in order to command the attention of the jury when visuals are involved.

Michael then transitions the conversation by expressing his opinions on why every case will have a different order of witnesses. You should determine the order of witnesses based on each case, start strong, think about a witness who can prove the defendant did something wrong, think about when a witness goes on (time of day and when the jury has low energy), and be sure to end with a message of the harm that was caused but a hope of what a verdict can do to help. But emergencies happen and people are late to court, so Malorie reminds you to be flexible.

And the only way you can be flexible is when you are mentally and emotionally prepared for trial. Malorie suggests you spend time with family and decompress the day before trial. Which Michael agrees with because you “spend so much time during trial staying up until 2 am” preparing for that next day, you cannot risk the exhaustion and mental fog and need to be in bed at a decent hour and fully rested.

Being aware of your energy after trial, is equally important whether you win or lose the case. You need to take a day off and recognize it is not possible to be 100% on every day. Or maybe you come in to work and just talk to people in your office. But Michael very bluntly shares “it’s hard because when you’re in trial all the other shit piles up” so when you’re out of trial you feel like you need to play catch up. “It’ll wait a day you need to take care of yourself,” he adds. After each case you should re-evaluate the parts that went great and where you can improve in your next trial, but again it’s important to give yourself space. Michael’s NFL quarterback analogy for this is spot on and reminds attorneys not to value yourself differently after a trial, instead focus on the work you put in.

This podcast on trial prep truly is detailed and also discusses: thinking about your clothes, glasses, how to prep lay witnesses, saving money on images by using Google and Adobe, thinking about the Rules of Evidence, and trying cases with other people. And with Michael and Malorie’s jury trial (mentioned in this episode) resulting in a 7-figure verdict, podcast listeners can expect to hear another episode discussing trial soon!

19 – Malorie Peacock – Trial Tips: Voir Dire, Visuals, and Technology

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Every month, our podcast receives questions from our listeners (which we love by the way, keep them coming) and we take the time to respond to each individually. After 8 months of being on the air, we thought it might be fun and valuable to dedicate an episode to reflect and respond to some of these questions in a new series we’re calling “TLN Table Talk.” In this episode of Trial Lawyer Nation, sought-after trial lawyer and fellow partner at Cowen | Rodriguez | Peacock, Malorie Peacock, flips the script and puts Michael in the “hot seat” for an open discussion to answers questions from our listeners.

Malorie digs right in with a note from a listener that asks – “Knowing that we all need to try more cases to get better, and sometimes you just can’t get to trial for one reason or another, how do you practice for the big moment of going to trial?” Michael reveals how he personally prepares for each trial and his approach toward different types of cases and jurors, along with his thoughts on prepared scripts. He goes on to share outstanding insights about planning and practicing for voir dire, where you don’t know what the jury panel is going to say; and allowing the truth to be acknowledged without letting it throw you off your intended path. Interestingly enough, Michael’s use of pizza and beer to get a deeper understanding of a case, while simple in practice, can also be incredibly useful in the courtroom. Michael also opens up about his rekindled respect for inclusive voir dire with a recent example of a case that turned a $125k offer into a $1.25M verdict, seemingly built in voir dire, before any evidence was ever discussed.

From there, Malorie talks with Michael about the firm’s strategy in trying most cases in pairs and asks him why he believes it’s better. His answer is perhaps not what you might expect, and the discussion shifts toward courtroom perceptions. Michael and Malorie both agree that every perception matters: from how you dress, to how you interact with your staff, to how people see you drive away in the parking lot. The same goes for your client too! Both also agree that understanding visual communication is extremely important as a trial lawyer.

Trial technology seems to be a hot topic for our listeners with all kinds of questions around what types we use, how we utilize them, and the thoughts around why we use them (or not). Michael is quick to point out that we all need to remember the purpose of the tech and the need to tailor the tech to the case, so you don’t look too slick when the other side brings in a manila folder and a legal pad. He does recommend that if the courtroom, and your budget, allows, there are some specific pieces of technology that are far better in his opinion in helping jurors understand pieces of evidence, so long as you are comfortable with it and prepared to proceed when it doesn’t work.

Michael and Malorie close the conversation in talking through strategies on figuring out how much money to ask a jury for and how to actually ask for it, the details of which you’ll have to listen to learn. Trial Lawyer Nation plans to do more “Table Talks” in the future as this podcast has always been about inclusive learning for all in our industry, which includes learning from each other! Please keep submitting your questions, comments, and topic suggestions to podcast@triallawyernation.com; and be sure to like, share, and subscribe to get the latest from the Trial Lawyer Nation podcast!

For more information about Michael Cowen, go here.

For more information about Malorie Peacock, go here.

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