Some trials matter more than others. Some verdicts impact perceived values and influence ongoing negotiations. After all, it is the uncertainty of outcome that makes the civil justice system work. Uncertainty creates leverage for both sides and allows the market to set values rather than some inexplicable arbitrary number set by a legislature. Sometimes that arbitrary number exists in a settlement agreement. In the National Settlement of Diet Drug litigation that number was six thousand dollars.
Every lawyer has war stories. Most are only interesting to the one delivering the story. Occasionally though a story bears listening because of those involved. I had the rare experience of falling into the middle of a trial where people other than me and my client were interested. Two of those people are legendary trial lawyers in Texas. They both have their names prominently inscribed on Baylor University: Walter Umphrey and John Eddie Williams.
It is Texas legend that the marble table in John Eddie William's Houston law firm’s conference room is the longest in Texas. Just a little longer than the one at Provost Umphrey Law Firm in Beaumont, Texas. Seated around the marble table in late October 2003 was a cadre of the most successful trial lawyers in Houston, Texas. The goal of this morning’s meeting was to head off a disaster.
I handled Provost and Umphrey’s fen-phen business and was a week or so away from trial in the first Fen-Phen intermediate opt-out case in the country. I was a nineteen-year trial lawyer with a track record of success in everything from auto accidents to asbestos cases. I intended to try the case by myself. A loss in the first case could negatively impact the plaintiffs and upset the delicate balance that exists in the cat and mouse game of mass torts. The lawyers assembled in John Eddie's conference room that fall morning couldn’t let that happen.
Fen-Phen, the diet drug cocktail sensation of the early nineties, caused heart valve damage and primary pulmonary hypertension. Wyeth, the manufacturer of the fenfluramine component, had paid a huge settlement to the thousands of plaintiffs represented in the first wave of cases expecting the tail, i.e. the future cases, not to be that long. Instead, the tail grew long, frustrating the company and creating a volatile second wave of litigation.
Lawyers nationwide opted their cases out of the national settlement in hope of greater recoveries with juries. Provost Umphrey was well respected and had significant resources to handle the litigation as they had in the asbestos litigation and in representing the State of Texas in the tobacco litigation. Nonetheless, I had never tried a case with collateral implications.
John Eddie called me about a week before trial and the conversation went like this:
“Jim, this is John Eddie.”
"Hey, John Eddie, how are you?"
"Fine Jim. I understand that you are going to trial next week in the first Fen-Phen opt out case. Jim, if you go down and f**k it up, you’re going to f**k it up for all of us."
"Well, John Eddie, I have no intention of f**king it up."
"Yeah Jim, but you’ve never tried a pharmaceutical case and you are up against a huge company with great lawyers from Washington, D.C., and Dallas, Texas, not to mention the best defense firm in Beaumont. Look, Jim, we can go speak to Judge Sanderson and get the case moved off the docket or I can bring in our team and we can try the case."
"Well, John Eddie, I really hate to give up this trial setting and I’ve put a lot of work into this. Look Jim, I’ll call Walter and smooth it over. Well, John Eddie, let me go talk to him first and I’ll get back to you."
I immediately walked to Umphrey’s office and recounted the conversation with John Eddie. Umphrey looked across the desk and asked, “Are you ready for trial?” I responded, “Yes”. Umphrey asked, “Have you taken all the depositions you need?” I answered,“Yes”. “Are your experts lined up?”, Once again, “Yes.” Umphrey paused, then looked at me with a wry smile and said, “ Tell John Eddie to go f**k himself”.
This was classic Walter Umphrey. Umphrey grew up in Port Arthur, Texas, the home of Gulf Oil Corporation and numerous oil and gas refineries and chemical companies. He played football at Thomas Jefferson High School and was recruited to SMU where he played in college before attending law school at Baylor University, now named the Sheila and Walter Umphrey Law School. His firm Provost Umphrey had roughly forty to fifty lawyers focusing primarily on personal injury litigation . Umphrey embodied a “let the jury decide" attitude that people expected in a great trial lawyer. All young lawyers in the firm were expected to show up in the firm kitchen at 7:00 a.m. and spend their days preparing or trying cases.
Umphrey had a knack for recognizing opportunity and throwing money at it. As a pioneer of mass torts, Umphrey made a series of successful decisions over the course of a career that made him a multi-millionaire with the ranches, planes and lifestyle one would expect. His political and civic activities took him to the Chairmanship of the Texas Parks and Wildlife Commission, Ownership of Community Bank, Cowboy Harley Davidson and numerous other companies. A book could be written about his life. Few dispute that his philanthropic activities will leave the most enduring legacy.
The story goes that Umphery saw an opportunity in taking Ward Stephenson’s victory in Borel v. Fibreboard, the first case to hold third party manufacturers liable for failing to warn workers of the dangers of asbestos, to a larger audience by screening Port Arthur Refinery and Chemical Plant Union members for asbestos diseases. As he anticipated, a number of workers had varying levels of asbestos disease and lung cancer. In the mid seventies, he began filings asbestos cases and trying them to verdict. In 1983, Johns Manville, the chief defendant in the litigation, filed for bankruptcy protection. Originally seen as a catastrophic event, it eventually led to the discovery of additional deeply liable defendants and the establishment of numerous bankruptcy trusts that would result in compensation for the victims for years to come.
The pinnacle of his asbestos work was Cimino v. Raymark Industries, a 2600 plaintiff class action tried in Beaumont, Texas in front of U.S. District Judges Robert Parker, Joe J. Fisher, and Richard Schell. The case resulted in a 1 billion dollar judgment and was a landmark effort in the handling of mass torts in Federal Court. Half a country away, the Los Angeles Times would label Umphrey, the King of Asbestos litigation.
If ever there was a man’s man, it is Walter Umphrey. Standing a sturdy six foot two, Umphrey resembles Lee Marvin with a full head of silver hair. Umphrey started out like so many lawyers in the Jefferson County, Texas District Attorney’s office where he never lost a trial. All agree that his strongest character trait is self-confidence. That and a disarming presence. Not one to suffer fools, Umphrey always preferred being around powerful people and it helped if you had an athletic or outdoors background. As with any analysis of powerful and successful people, there are layers of contradictions and inconsistencies that leave some mystified at how greatness was achieved, but with Umphrey, it boiled down to determination and a healthy dose of intimidation.
He first encountered John Eddie Williams during the formation of an asbestos super firm in nearby Houston headed by Umphrey, Wayne Reaud, Ken Bailey and David Burrows. The goal was to represent refinery workers along the Houston Ship Channel similar to how Umphrey, Bailey and Reaud had represented them in Beaumont. At the time, Williams was a partner of David Burrows, a successful personal injury lawyer in Houston. John Eddie, a large man himself, and a Baylor football alumni, no doubt made a favorable first impression on Umphrey. It certainly didn’t hurt that Williams had been editor of the Baylor Law Review. Williams and Umphrey began a lifelong friendship and business relationship that was more father and son, than simply friends. As such, when Umphrey told me to tell John Eddie to go f**k himself, it was simply the gigging that close friends give each other without fear of offense.
Nonetheless, I did call John Eddie back and explained that we would go it on our own, to which John Eddie exclaimed, "Okey Dokey." It’s worth mentioning that I had no idea that so many others were listening in on the calls.
Over the next two weeks, I tried the case of Deborah Hayes v. Wyeth in Beaumont, Texas before Judge Gary Sanderson. Mrs. Hayes was typical of many of the opt-out clients in that her mild aortic regurgitation had not yet advanced to the point of needing medical intervention. She was the model plaintiff from the standpoint of background and jury appeal. In her forties, she was attractive, articulate and credible. Had she opted into the national settlement of diet drugs she would have received six thousand dollars. The case was defended by Vinson and Elkins, Arnold and Porter and Germer Gertz.
The evidence was presented through expert witnesses as well as the plaintiff and though the science was at times mind numbing, the jury remained engaged. I handled all of the argument and all of the witnesses on both direct and cross examination for the plaintiff. Bill Sims from V&E and Paul Gertz handled the defense side of trial presentation for Wyeth. After a week and a half of trial, the case went to the jury late on a Wednesday afternoon. The jury retired for the evening without reaching a verdict. The next morning, an advertisement appeared in The Beaumont Enterprise placed by The American Tort Reform Association labeling Beaumont, Texas a “Judicial Hellhole” and excoriating the city as the home of runaway juries.
I now had to consider whether or not the jurors had seen the ad and whether or not it might influence their deliberations. Judge Sanderson polled the jury and asked if any had read the paper or any other press concerning these issues. The jury assured the court that they had not and continued their deliberations.
Around 4:00 p.m. on November 9, 2003, the jury came back with a unanimous verdict in favor of the plaintiff with compensation of $1.4 million. Shareholders dumped Wyeth stock for fear that enough money had not been set aside to pay the claims. It would take another year and several more trials before the litigation could be resolved, but it did finally resolve. The verdict created a level of uncertainty that sent the parties back to the table on values for the opt- outs. In the end it served its purpose.
In the courtroom following the verdict, I was approached by a lawyer who was part of the usual gallery during the trial. "Jim, my name is Mike Leebron, I'm a lawyer from Houston and I was in that conference room when John Eddie called you prior to trial. Jim, congratulations. I've been sending emails to the other lawyers that were assembled in that conference room and I'm going to send them to you now." " "Thanks Mike, I really appreciate it." We remained friends until Mike's untimely passing.
In retrospect there are lessons to be learned from this experience. Utilizing my own trial strategy with no input from anyone else was a huge gamble. Despite Umphrey’s support, what if I had f**ked it up? It very well could have been my last shot at a trial of this kind. Yes, the Judge, jury and opposing counsel enabled success, but that is always the case. No success in trial happens solely due to one person’s effort. Umphrey could have agreed with John Eddie and not let me try it. A nasty jury foreman could have derailed the case. The Judge could have mistried the case sua sponte due to the newspaper ad, but none of those things happened.
Every trial teaches lessons. All lessons learned are understood against the backdrop of past experiences. As long as I can remember, I loved standing on my feet and speaking. During law school, much to the chagrin of my classmates, I volunteered for recitation just about every day. Anytime I could get on my feet and speak, I did just that. I began trying lawsuits immediately out of law school. My first cross-examination was of Houston Police Chief Lee Brown in a case styled Lee v. City of Houston. After that experience, I never really wanted to do anything other than try lawsuits.
I am atypical when it comes to public speaking, most people dread it. Many lawyers dread it. That fear can be stifling and inhibit a lawyer from reaching their potential. If you are a young lawyer reading this and still get nervous in the courtroom, here is some unsolicited advice.
A positive attitude is the first step to being an effective public speaker. Oftentimes, how you say something is just as powerful as what you say. It is particularly important when others doubt you. I recall trying a Levaquin case in Minnesota a few years back. The morning of opening statement I received an email from one of the "team" members suggesting the I didn't seem up to the task and offering to step in and handle it instead of me. Fortunately, other team members were copied on the email and the team leader stepped in and told me to ignore it and proceed as planned. I did just that, opening went very well, and who do you think was the first person to congratulate me afterwards?
There are plenty of lawyers that would have handled that phone call with John Eddie in a very different way. They would have dismissed his call and ignored him. But for me, he really was more important to the litigation than I was, and Walter was Walter. Who was I to tell John Eddie or Walter one darn thing and that rings true today. Remember, the football field at Baylor University is named for John Eddie Williams and I’ve already mentioned the Umphrey law school. These are men of significant power, influence and wealth.
I seriously doubt that either Walter or John Eddie remember these events as anything more than a routine case in a world of big cases, but it obviously had an impact on me. What I learned and took away from that experience has influenced my continuing trial practice. When I'm challenged, I get over myself and don’t let the feelings of inadequacy or disrespect cloud my judgment or influence my work. As we say in Texas, cowboy up! Yes, those feelings can be motivating, but they can also be a distraction. Step one is believing in yourself.
Step two is preparation. Know the case cold. Just like studying for a test, a quiet focus on the details is what helps your mind create a plan. Critical to every case is a theme that captures the moral reason the jury should decide in your favor. This begins before the depositions, before the expert reports, before the pre-trial hearings. Frame the case so that the jury appreciates their role in dispensing justice. Give them a why, not just a what.
I'm realistic and make sure the story rings true in my mind. Your theory must be supported by the facts, therefore, test it in front of others and listen to their critique. Don't stretch a fact beyond the evidence. Don't insinuate that a witness meant something different than what you can absolutely prove. If you lose credibility with the jury, so does the case. Never forget that your audience is the jury. If they are falling asleep, take a break.
Public speaking can be learned. For years, Billy Graham read his sermons word for word from a script. In recent trials, I’ve seen defense lawyers do it. I’m not recommending it, I’m just illustrating that there is no “one and only way” to present an argument. What I do know is that if you don’t believe what you are saying and I mean passionately believe it, neither will the jury. So, for those of you with some fear of the courtroom, step into the well and let it happen. Practice in front of a mirror so you know what your facial expressions look like. You may be surprised. Don’t move too much in the courtroom, it’s distracting. All of that pacing back and forth in the movies occurs in less than 20 seconds over the range of 5 feet. Don’t think that it looks like that in a real courtroom or that jurors don’t get annoyed when you are pacing back and forth. Stand and deliver.
Use your hands effectively. When you describe something using your hands, let your eyes follow your hands or the jury won’t be engaged in your story. Tell a story. Literally, "Once upon a time she was driving a car, and she stopped at a stop sign. She is looking in her rear view mirror precisely when the truck slams into her trunk. Her face hits the steering wheel, blood splashes on the dashboard and the next thing she knows, she’s in the emergency room." Study the art of rhetoric. I have my favorite trainers and I still go for tune-ups. If you don’t use it, you will lose it.
Finally, never let anyone else’s opinion or expectations of you influence how you feel about yourself. Trust yourself and things will work out. I wish I could say this was the only instance where I felt the need to prove myself. When they say trust is gained over time, that is true of trust in ourselves as well. It took me a long time to realize that it is okay to acknowledge that years of focus and practice have paid off, to give myself credit for the countless hours spent contemplating my client's fate and how to best communicate it to the jury. Calvin Coolidge said, "Nothing matters more than persistence" and in the end that's what happened in Hayes, we persisted.