I am in the middle of trial. We represent a great young guy, Jesus. When Jesus was 7, his mom bought a Ralph Lauren shirt for him from Macy’s. The tag of the shirt said, “100% Cotton.” A while later, unfortunately, Jesus was playing with a lighter. He burned a piece of plant which fell on his shirt. He tried to put out the small flame but couldn’t. The flame grew and caused him severe burns. Years later, we analyzed the shirt and found out it was not, in fact, 100% cotton. Instead, it also contained nylon and rayon. Those three fibers, in combination, we say, caused Jesus to suffer much more severe burns. We also state that clothes for kids should not burn kids at all. Rather, we say, kids’ day clothes should be like kids’ sleepwear: flame resistant. It’s a tough case but an important one. I am trying it with a great lawyer, for a great client, and to protect other children from potential disaster. The other day, in the middle of things, I realized it was my 50th jury trial.
Many of my trials have been lengthy and complex. As a federal prosecutor, I tried a case involving a Chinese alien smuggling ring and a fishing vessel intercepted off the coast of Mexico by the United States Coast Guard. I flew out to the ship on a helicopter and was lowered by a bucket to assist the investigation. The eventual trial of that case took close to 3 months. I tried a Ford Explorer “roof crush” case in Indianapolis early in my career. I left San Diego in May and didn’t come home until August. Overall, I would say, the average length of my trials has been three weeks or so. Usually we are in session four days a week, so doing the math: 50 times 12 equals 600 trial days.
I have spent more than a solid year, and closer to two years, of my life in a suit in front of a judge and jury
And so, I have spent more than a solid year, and closer to two years, of my life in a suit in front of a judge and jury. Trying cases today is both different than when I started and the same. What is different is the experience that time in the courtroom brings. I remember the very first case I tried. I was a young federal prosecutor. No grey. No wrinkles. We had charged a young woman with the importation of marijuana. A friend and mentor asked me to help try the case with him and I excitedly agreed. I remember my first witness: a canine inspector who had made certain observations of the defendant in “secondary inspection.” I spent a full three days preparing the examination; going over and over and over it until it was perfect in my mind. I look back on that time and chuckle. It would take me 15 minutes to prepare the same examination today.
When collegiate football players enter the NFL, they say that the hardest thing to adjust to is the “speed of the game.” After a while, however, they get used to things and the game “slows down” for them. I feel like trials are the same way. To the novice or inexperienced trial lawyer, trial is fast, unpredictable and terrifying. Too many things are going on at once. You don’t have any idea what is happening next. What is important and what can I let go? There is a constant sense and feeling of terror, uncertainty and insecurity. Thankfully, 50 trials later, that is all gone for me. I can go through a trial relatively calmly and strategically. I feel like I am often many steps ahead of my defense counterpart and nothing surprises me anymore. And so that part of things is certainly different.
50 trials later…I feel like I am often many steps ahead of my defense counterpart and nothing surprises me anymore.
I also take a different approach to my health and life during trial. When I first began, I believed that I needed to constantly prepare and never stop preparing until trial was over. I would stay up until the early morning hours, get a couple of hours sleep, and start all over again. Now I do things a little differently. Don’t get me wrong. I am still fanatical about preparation, and particularly, organization. (Just ask my trial team). At the same time, however, I recognize the value of creativity and the ability to think and respond in the moment. Those things require sleep. I also try to exercise in some way if I can. Most often, it’s yoga either after a trial day or during days we are “dark.” I can’t tell you how many times I have been struggling with a difficult issue and the simple answer has come to me in the middle of a yoga class. And so that is different too.
Many things remain the same. As a federal prosecutor, I remember dealing mainly with two types of defense lawyers. Some were long-time professionals who had tried many cases. Some were young Federal Defenders. Some of the “old timers” were great. Many, however, seemed to have lost their excitement and enthusiasm for their work. They may have had dozens of trials under their belt, but they tried my case just like they had the 20 before, just going through the motions. I told myself I would never, ever become that. On the other hand, some of the young Federal Defenders were the best trial lawyers I faced in criminal law. They tried harder and cared more. I told myself I would always be like that regardless of how many cases I tried.
I still approach each trial uniquely and with the full measure of my heart and soul.
I think I have kept that promise to myself. I still approach each trial uniquely and with the full measure of my heart and soul. That can be painful when I sometimes lose. I tried a roadway design case against Cal Trans in Los Angeles last year. Cal Trans violated its own safety rules by placing a curb in front of a guardrail. A grandma was driving her grandchildren down Interstate 10 one day. A tire blew and she hit the curb. Like a skateboard ramp, the curb launched her minivan up in the air and on top of the guardrail. The guardrail broke, entered the minivan, and caused an 8 year old boy to suffer a devastating brain injury and paraplegia. The boy was in a State group home. We told the jury we needed money to bring him home. The trial took a month or so. We won every witness, every day, and every issue. The only thing we lost was the verdict. Even the judge’s clerk confided that she and the court staff were shocked by the outcome. You truly never know with juries.
Losses like that are tough. Trial itself is brutal. While I still try to sleep and exercise occasionally, I otherwise give up much of what I love to do. I don’t get to see my kids as much. I don’t get to spend as much time with my partner. Boxing, judo and jiu-jitsu, my physical passions, all get put on hold. Working 16 hours a day is especially tough when a month later, you get kicked in the teeth and find out that it was all for nothing and that you are out of pocket several hundred thousand dollars. And you feel like you let someone you love down. It makes sense to me that trial lawyers struggle with both substance abuse and maintaining relationships.
At the same time, it’s what I do best. And when I win, I change people’s lives. I represented a chiropractor who slipped and fell at a Starbucks. We said he suffered a brain injury. Starbucks offered us $75,000 and told us to pound sand. That family was literally on fumes when trial started. They were heavily in debt, miserable and on the verge of falling apart. A loss would devastate them and their futures. Fortunately, we won to the tune of $7.5 million. Today the family is happier than ever. They own a beautiful home. The oldest boy is in law school and the daughter is married to the man of her dreams. Those stories are what keep me coming back.
As Isaiah 1:17 says, “Learn to do right; seek justice. Defend the oppressed. Take up the cause of the fatherless; plead the case of the widow.”
I don’t like wearing suits and sitting inside for days on end. I would rather be in sweats and a baseball cap. Or better yet, a gi. But the life of a trial lawyer is an honorable and Godly one. As Isaiah 1:17 says, “Learn to do right; seek justice. Defend the oppressed. Take up the cause of the fatherless; plead the case of the widow.” I have tried great cases with great lawyers. I have tried cases on television and in front of packed courtroom. I’m not good at much else and there aren’t many jobs where I can literally be a modern day samurai for justice, using my mind and heart instead of a sword. These days I tend to try four – five cases a year. This year I will try four before April alone. At that rate, I figure, I will be up to 100 in ten years or so. I wonder if I will still have this blog then. And I wonder if the title will be “My Last Jury Trial” or “Excited About the Next 50.” I guess time will tell. Thanks for reading my story.
