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The Lawyer with a Programmer’s Mindset, with Todd Schneider · Coopers' Code

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I was a programmer. That's that's how I got through
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law school, right? Writing software.
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I started my practice. I'm like, this is crazy that no
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one's thrown software at the law.
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This was in 1993. So I sat down and I wrote my
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first case management system just to track my cases.
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My firm started to grow and so the software needed to do more.
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Over the years, we built this beautiful piece of case
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management software that did everything not because we took
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our business processes and worked them into the software
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really born of our business processes.
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And one thing we say in our practice is the way we've always
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done it is no reason to do it that way.
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Again, I say it a little differently.
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I tell my people no one could design A worse system than me.
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So I really need your help to to make things better.
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And because we're able to incorporate that into software,
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it's efficient and it's exactly what we need.
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Howdy, and welcome to the show. Cooper's Code focuses on legal
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issues and notable practitioners, distilling wisdom
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so we all achieve the best results for our clients.
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I'm Miles Cooper and I'm very excited for this conversation
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with Todd Schneider. Before Todd founded Schneider
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Wallace Cottrell Kim LLP, he supplemented his income during
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law school as a database programmer.
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When he entered the law, he did so as a double threat, both as a
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trial lawyer and as someone deeply interested in process
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that led to dual successes both with a law firm and with a
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custom built case management software for that firm that
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eventually became so successful it became a separate company
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known as Clara. On the litigation side had built
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an incredible career in complex litigation with court victories
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ranging from trial courts to the US Supreme Court.
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This success led to an appointment by California's
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Chief Justice to the Civil Jury Instructions Committee.
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Leadership positions in local and state organizations.
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Trial Lawyer of the Year wins an induction into the invitation
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only American Board of Trial Advocates.
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So please sit back and enjoy this wide rating conversation.
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Welcome to show, Tom. Thanks, Miles.
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I'm I'm really excited about sitting down and and talking
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with you after all these years. I'm excited as well.
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I always generally start in the same place, which is is how you
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found your way to, to law school and, and to the extent that you
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know where you grew up in, in any, any parenting or or or
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childhood things are part of that.
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Feel free to share. So interestingly, I went to I
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went to college with no inkling that I was going to be a lawyer.
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Started out as an engineering student, realized I was terrible
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at math, so that quickly went by the wayside.
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Switched into political science and international relations.
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Loved that, always wanted to pursue a career in that state
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department or something like that.
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My fifth year of college took a class in business log as I
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needed the credit and I'll never forget that class.
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Open my eyes and I said wow this is for me.
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How so? The guy who taught the class
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named James Johnson was his name.
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His initials were JJJ and everyone just called him JJJ
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was. So he was an adjunct professor.
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So he had a, he had a law practice and he came in every
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day so excited to tell us what he had done that day.
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I thought to myself, if I could be that excited about work every
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single day, I should look into it.
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So I went to law school with the idea that I was going to be an
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international lawyer because it kind of went with what I was
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doing. Similarly, took a trial ad class
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in law school and that was the end of it for me.
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I was a trial lawyer from that day and that's what gets me out
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of bed in the morning. Still is trying cases.
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And like everything else in my life, I lucked into it, met the
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right people at the right time and became a trial lawyer and
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never, never really looked back. I know that that's where you
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ended up. I because we had the benefit of
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a pre podcast conversation. I, I learned that you have some
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programming background as well. Can you tell us how how that
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unfolded and how it led to some parallelism in in the law world?
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Sure. So I started my law practice at
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the ripe old age of 27. This was 1993.
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At that time, there was no such thing as case management
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software didn't have the, the Clara's, the Cleos, the Lidifies
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of the world. And I was a programmer.
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That's that's how I got through law school, right?
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Writing software. That's how I made my extra money
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and I started my practice. I'm like, this is crazy that no
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one's thrown software at the law.
4:39
So I sat down and I wrote my first case management system
4:43
just to track my cases. My firm started to grow and so
4:47
the software needed to do more. So my staff very quickly
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understood that if on a Friday they said, Todd, I wish the
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software would do this by Monday, the software would do
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that because I'd stay up on the weekend and get it done.
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And so over the years, we built this beautiful pizza case
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management software that did everything not because we took
5:09
our business processes and worked them into the software
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really born of our business processes.
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And when those processing it sees needed to change, the
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software would change when some judge had a new court rule that
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would get built into the software.
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And so over the 30 years of the practice, we've always done our
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job that way. One thing we say in our practice
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is the way we've always done it is no reason to do it that way.
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Again, I say it a little differently.
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I tell my people no one could design A worse system than me.
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So I really need your help to to make things better.
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And because we're able to incorporate that into software,
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it's efficient and it's exactly what we mean.
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I remember being knee high to a grasshopper and walking along
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Van Ness with you from something over 20 years ago probably and
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talking about digitization and the paperless office.
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Not, not no paper, but scanning and where documents went and,
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and even back then you really had some very creative ways of
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handling things. So when I started practicing
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law, e-mail didn't exist. Voicemail had just kind of came
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out. You're still getting your
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receptionist would write you a note on a piece of paper about
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who called and you would call that person back.
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So as we started looking at computers and the law, we
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started looking at these shelves of notebooks that we had, which
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were our files. And somebody had a file, all
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that paper, and then you never knew where to find that paper.
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And so my staff said to me, can't we digitize all this?
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And we did. And we started scanning way back
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in the early days when scanners just came out every document
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that came in the office and then that would be distributed to
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whoever needed to see it by a custom precursor to e-mail.
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It was an an intranet that we had built and you could
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distribute things to people digitally.
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We started building files that way.
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Then we realized that, well, if we're building a file, how are
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we going to put it all? How are we going to find it
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again? So then what you'd call tagging
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today, pleadings, communication, whatever discovery.
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We built the rudimentary tagging system and all of the sudden
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those notebooks we had on the shelves, we didn't need any
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more. What we did was, is when a piece
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of paper came in the office, we scanned it and we filed it in a
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Cron file, not by case, just by the date that came in.
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If we needed to get our hands on that piece of paper, we had it
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electronically. We we had the tag of what it was
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when it came in and what case it was from.
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And all of the sudden we didn't need the army of people that it
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took to keep the files up to date.
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Rather, what we could do was let our office run efficiently,
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which let us do a lot more cases, frankly.
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I remember the all hands emergencies that happened on
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rare occasion in in in in the papered file world where
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something had been misfiled and nobody knew where, but they knew
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they needed to get it and everyone was tearing apart the
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drawers. So we had a funny version of
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that in our firm because we didn't rely on paper.
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We didn't. We couldn't easily put our hands
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on the original of things, which isn't important except when
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you're going to trial and you need the original sealed
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deposition. And every time we went to trial,
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there would be a fire drill at my firm saying I've got the
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deposition, who knows where the original was.
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So we went back for that one purpose on every case.
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We had the original depositions in a red well and it was an
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eyesore at my office, but it's the way we solved exactly that
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problem. Two directions I want to go with
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this and and I'll ask both and see which way you want to go
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with one relates to trial and paper in terms of, you know,
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when you and I, I'm thinking back then, not now when you went
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to trial, what kind of trial notebooks, witness binder, what
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what have you would you use or was it all all laptop?
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The the other one was, if you're doing this coding over the
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weekend, helping with the processes, turning your office
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into a a modern system, how much of your time is programmer slash
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operations versus full tilt trialer?
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You asked me the question, you know, how could it possibly do
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both of those things at the same time?
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Well, the answer is that being a programmer made the lawyer
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lawyering part more efficient. So I actually had more time than
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I would. But for it, we weren't looking
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for paper, right? We were able to take a document
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and have an outline of that document that's tagged by issue.
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You think right now you take that for granted, right?
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You can go through deposition, tag it by issue.
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You couldn't then there was no way to do it.
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And then you could go across 20 depositions and look at all the
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issue tags. So you get ready for get for
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your trial or the next deposition that much easier.
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So that's how we built how I built the time to do the
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programming. The other part was my wife.
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She got used to me being laying in bed with a laptop writing
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software. And it was really interesting
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because she would be reading a book or maybe snoozing.
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And I get excited about something I wrote and I wake up
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and say, look at this, look at this.
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And she'd be like. Did you did you have little kids
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at this point? My oldest one was born in 98, my
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youngest one was born in 2000. So by then there was much more
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software available. I was still writing software at
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that point. My youngest 1 is a software
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engineer, is a computer engineer now.
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My older one works for sales in Clare, our software company, and
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so they're both very much involved in that piece.
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I want to make clear on the endorsement side that we talk
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about different products on the show there.
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There's no endorsement from any any advertisers for any of the
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things that we do on Cooper's code.
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And, and I don't use Clara, but I would love you for you to talk
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about it, not as a sales pitch, but in, in the realm of case
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management software, what you like about it, what you might
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disfavor about other products. So Clara is the commercial
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version of what I wrote. And this is the way Clara
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happened. I've got a good friend.
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Our kids have known each other since they were in kindergarten.
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And about four years ago, we were having a beer and I was
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telling the exact same story that I told you.
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And he said, well, what if, What did you do with it?
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I said, oh, no, it runs my law firm.
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And he was an entrepreneur. He said, you ever thought about
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commercializing it? I said, well, I don't want to
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support software and it was written by me over the years.
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It's not, you know, thought out code.
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He said, let me put my engineering team on it and we'll
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commercialize it. So what is today Clara is
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exactly what I was describing. It is a piece of software that
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runs a law firm that was developed by a law firm's
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business rules. And so if you looked at it,
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there'd be no learning curve because you would say, I do this
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every single day. And that's the beauty of Claire.
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Of course, we're incorporating AI now where it's got a chat
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bot, it's got the AI document assembly, all that stuff that I
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never put into my software because it frankly didn't exist
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before the last three years. But it's modern, but it's old
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fashioned. It's easy, but it's complicated,
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and it really is designed to think like a lawyer.
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But not any lawyer, but a lawyer who runs the law firm.
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The only other product I can think of that has kind of the
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same roots, as far as I'm aware is is Litify Morgan and
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Morgan's. That's right, development.
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That's right, very similar. Interesting.
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Yes, the one piece that seems to always be a hiccup in case
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management software is deadline integration.
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Meaning, does it have its own calendaring system embedded, or
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do you have an app where you're pulling somebody else's calendar
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rule set in for Clara? So there's a company called
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Calendar Rules that puts out an API that we hook into.
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What Calendar Rules does, which is great, is they've got rule
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sets for every jurisdiction, every judge, including local
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rules. We couldn't do that.
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You couldn't do that. So we've integrated their API
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into our system. You can also do your own custom
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rules if necessary. But when you calendar that you
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just got a motion for summary judgment hearing date in
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Kalamazoo and it's Judge Smith in Kalamazoo, it will calendar
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all the deadlines for Judge Smith in Kalamazoo instantly.
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And if Judge Smith changes the hearing date, all deadlines
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change. You can also calendar your own
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internal deadlines. I want to get the brief done two
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weeks early. I want a draft of the breach
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brief 3 weeks early. All that gets calendar and it
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and gets attached to the hearing date.
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So when the hearing date moves, everything just moves.
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If you get a new associate and you want to move from John Smith
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associate to Jane Doe associate, you simply do a substitution and
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everything moves. When does the calendar live in
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the case management software or does it show up on?
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And I ask this because I know there are a lot of lawyers who
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who have people who deal with all the calendar stuff, but what
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they see is on Outlook or some other calendar system.
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So it's got two way integration with Outlook.
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So you can see it in the case management system or you can see
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it on your Outlook. You get an invitation in
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Outlook. You simply forward it to Clara,
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it goes into Clara. You calendar something in Clara,
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it goes on to your Outlook. It wasn't supposed to be a sales
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pitch, but it it sounds sounds like it's very useful for the
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right firm. I'm trying not to pitch it, but
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it's great, yeah. Another nerdy question.
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When you were writing it originally, what what were you
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writing it in? So initially when I wrote it, it
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was in Visual Basic with a sequel back end.
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We it was It was then went to a.net front end with a sequel
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back end. Now it's in React in Jscript
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with a sequel back end. Very cool.
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Yes. I was, I was with you till the
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very end. My other question was, and here
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I'll split the question, a lot of lawyers when they go to
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trial, they might be digital at this point, they might not rely
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on on paper copies of things anymore.
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But by the time you get to court, they're big binders of
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exams of the deposition to flash in the witnesses face when they
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go sideways. How?
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And I want to do it two ways. When you first went to this
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paperless setup and you're going to trial, how did you deal with
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paper and and is that any different now?
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Yes. So when I first went to trial
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the Elmo, if you remember the Elmo.
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I remember the Elmo. Had first come out and was crazy
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expensive. I was a young trial or no Elmo
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in my office. Couldn't afford it.
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So I used to go to Kinko's at night and make those giant blow
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up posters. You know what I'm talking about,
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right? And you would write on them with
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a marker. And my favorite thing to do is
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when the defense put up some big blow up of the verdict form on
16:43
rebuttal, I'd go write my numbers on their verdict form.
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But so that's, that's how it started.
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And I would have witness binders, then trial director.
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When trial director first came out, that blew my mind.
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We would digitize everything into trial director.
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And I used to have a barcode reader we would put a barcode on
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this all was all within trial director, but barcode on every
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piece of paper. So you would have a binder full
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of barcoded evidence and the witness would have a similar
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binder and you'd hit it with the barcode and the document would
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come up for the jury to see. That was great.
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Then Fast forward to now, completely paperless and trial,
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except for a witness binder and a judge binder, everything
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happens on the iPad including handwritten notes.
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All handwritten notes on the on the iPad are coded so that when
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you get to trial, I like to keep what I call a closing argument
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tag. So anything happens for, for
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closing, you tag it a rebuttal tag, a cross tag and a direct
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tag. So everything is coded So you
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know if, if for example, the witness says, if witness A says
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something that you want to cross witness B with, most lawyers
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lose that during trial. But if you're tagging everything
18:00
for cross before witness B comes on, look at your cross tags and
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there it is right in front of you.
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Same thing with closing. I had my entire team take
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closing notes throughout the trial.
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And when we get down to right closing, everybody presents
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their notes and there's no dumb notes.
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We sift through it and maybe 1 or 2% get actually used, but we
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don't lose the thread, which is so important.
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I think you can only do that digitally.
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Reference an iPad. Do you trial pad what what what
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system do you use for or is it? Is it within Clara?
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No, it's not within Clara. On the note taking sides, I tend
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to use notability, which I think it's a great piece of software.
18:39
Trial director we use on the evidence side, there's also
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tagging trial Director, which is great.
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Then we use, you know, PDF Expert.
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Yes, yeah, we use PDF Expert just for easy taking notes on
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documents. So it's kind of a mix of things
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that we put together, but the whole key to it is tagging,
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tagging, tagging and tagging. I, I see a pattern here in, in,
19:04
in the documents as they come in and then as you, as you're doing
19:06
the trial itself. We'll talk about this later, but
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I think there's one way to try a case and that's my way.
19:11
What? Why don't we talk about it now?
19:13
It's it's actually not true. I think there's great trial
19:15
lawyers out there that do it differently.
19:17
But I tell people in my firm there's one way to try a case
19:20
and that's my way. And there's a reason for that,
19:23
because I think preparation wins and loses trials.
19:27
Why don't you walk us through the the preparation and that
19:29
that one way to the extent that that you can compress it into a
19:34
session like this. Sure.
19:36
So preparation starts with with case choice.
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I firmly believes the juries decide cases based on the
19:45
equities. They'll figure out a way to make
19:48
the law work. But the equities are the most
19:51
important. And so as you choose cases, you
19:54
have to keep your eyes on the equities.
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Giant damages, the equities are wrong, you're going to get
20:00
defensed. So that's where you start with
20:04
the equities. We like to say in, in, in, in my
20:07
office, we'll do any case if two things are true.
20:10
One is we got to be able to make money on it.
20:11
We can't keep the lights on. But the other thing is it's got
20:14
to change the world, even if it's just a little bit.
20:17
That's the equities piece. And so I think case selection is
20:21
a first thing. Then throughout discovery,
20:24
you've always got to think about trial.
20:27
How is this going to play into my trial plan?
20:30
We do not do cases expecting to settle them.
20:33
Like every lawyer, we settle most of our cases, but we will
20:36
never do anything for the purpose of settling a case if
20:39
that thing somehow prejudices our ability to try the case.
20:44
And so as you go through discovery, you're asking
20:46
yourself the question, what am I doing at trial?
20:49
What is the jury going to see? How does this affect the
20:51
equities? Where does this fit into the
20:53
law? And in order to do that, you got
20:55
to do a couple of things. One is you've got to know what
20:56
your jury instructions are going to be early in the case.
21:00
And then you've got to look at what your different categories
21:03
of evidence are going to be. And everything you do in
21:05
discovery, you do because it's filling in a hole in the
21:10
category of the evidence. I want to follow the thread, but
21:13
this is an opportunity to tangent.
21:16
Do you feel you have any personal benefit from granular
21:20
knowledge of the jury instructions given your role
21:23
with the jury instruction committee?
21:25
You sit on the the California Jury instruction Committee.
21:27
You were appointed, right? I do.
21:28
I've been on that committee for close to two decades, OK.
21:33
I want to make sure that I answer that question in a
21:36
careful way. There's no benefit to me by what
21:40
the instructions say. The watchword in developing the
21:44
instructions is accuracy. And the instructions committee
21:47
is very careful to reflect what the state of the law is.
21:52
And I'm a plaintiff's lawyer. And if I got to write an
21:54
instruction, that's the defense instruction because that's the
21:56
state of the law. That's the instruction that gets
21:57
written, however, so, so, so no advantage there.
22:01
The advantage is, as you said, is an intimate knowledge of the
22:05
jury instructions. I'm very facile with the
22:07
instructions themselves. So if the judge asked, well,
22:10
shouldn't we have an instruction on this?
22:12
I can easily say that, you know, that's at 21 O 5, which is
22:16
great. We also spend a lot of times in
22:18
the instructions committee on the directions for use, which as
22:21
a trial lawyer tip look at those very, very, very rich within
22:26
information. I know what the committee meant
22:29
when they wrote the instructions and it's usually described in
22:32
the in the directions for you. So where a judge interprets it
22:37
in a way that I believe the committee didn't mean, I know
22:41
where to look and I know how to walk a judge through what the
22:43
committee meant. That doesn't mean the judge is
22:46
going to agree with me. It doesn't mean that I'm
22:48
speaking for the committee, but I can tell the judge my
22:51
understanding of why the instruction is, is what it is.
22:56
And I think that's very helpful. I also think it's very helpful
23:02
because you know the nuances and where an instruction needs to be
23:08
either scrapped and not used or whether it needs to be modified
23:11
by the court. And because you've thought
23:13
through those nuances, because each instruction gets a full
23:17
hearing at the committee and a fulsome discussion, sometimes
23:21
hours. And so you've thought through
23:23
each part of the instruction and you've thought through the
23:26
meaning of each word in the instruction.
23:29
And so you can really work with the court to get it right.
23:32
Yeah, that's helpful. And then before I let go of the
23:35
jury instruction piece, I'm going to come back to paper.
23:38
And and I know that even with lawyers who often times go very
23:42
digital, they'll still drag in a four in one like the CCP and
23:47
they'll drag in the KC instructions with all the use
23:49
notes. Are you do you carry books at
23:52
all when you go? I don't.
23:52
I don't carry books at all but it is all on my iPad.
23:55
All bookmarked so you can get. I find you can get the things so
23:59
much quicker digitally than you. 10 on paper.
24:02
Yeah. The only thing I do, and I had a
24:05
hearing yesterday, I have my hearing outline on paper because
24:11
I'm using my iPad for all of the things that I want to turn to.
24:15
So I could have two iPads. That looks a little silly.
24:18
Yeah. So I usually have my hearing
24:19
outline on paper. Understood.
24:21
I took us down the rabbit hole of the of the during
24:24
instructions you were talking about.
24:27
You have one way to try case and and part of that is making sure
24:31
you know what the jury instructions are going to be
24:33
well before you were ever in trial.
24:35
That's right. And you need a complete evidence
24:37
map. You need just by issue where all
24:42
the evidence fits in. And you need a by witness map so
24:46
you know where evidence comes in by witness.
24:49
And then you need a check mark with your elements to make sure
24:52
it all comes in. Because the worst thing in the
24:55
world is say, judge. Uh oh.
24:59
I need to reopen because I'm I missed something for personal
25:02
jurisdiction or nonsense that you just shouldn't have missed,
25:05
right? And so you need to make sure
25:07
that's checked off. What is a witness map?
25:10
What is an evidence map look like that that phrase can mean
25:13
different things to different people.
25:14
What does it look like for you in your one way to try case?
25:17
So for me, it looks like element, witness, evidence,
25:23
element evidence, witness, right?
25:27
So that you're walking through your case either by witness, by
25:31
element, or by evidence. And you need to be able to look
25:34
at it all those ways because as you put a trial together, you'll
25:38
want to put it together chronologically in a way that
25:41
makes sense for the jury. But the witnesses may not come
25:43
on that way. So you've got to figure out how
25:46
you're going to piece your story together by the witness you have
25:49
on the stand in the order that they're on the stand.
25:53
I also think that your documentary evidence and your
25:57
demonstrative evidence is as important as what your witnesses
26:01
say, particularly now. I mean, if you look at Fox News,
26:07
if you look at Jon Stewart, they all have that box right here by
26:12
their head while they're talking.
26:13
And that's how juries learn to take in information.
26:19
Todd talks, but what is really going on is what Todd is saying
26:24
is supported by what's in the box next to his head.
26:28
So as you're examining a witness, you've got to have that
26:32
box up all the time to supporting whatever you're
26:35
saying. And I know we're still talking
26:37
about the prep to get to court, but, but again, I, I do
26:40
tangents, it's, do you have a way that you like the courtroom
26:46
set up so that the jury gets that visual support and, and,
26:52
and if so, can you describe that?
26:54
So as many televisions as you can get in front of the jury,
26:56
you should have in front of the jury.
26:58
I think the what they call the hot seat guy is as important as
27:03
a good associate. It's as important as a good
27:05
trial lawyer. That person has to be with you.
27:08
Everything. It's another thing I say.
27:10
Everything in a jury trial is carefully scripted, but it
27:14
should look like it's not, which means you've got to work with
27:18
your hot seat guy. So when you move through your
27:21
script, stuff is changing when it's supposed to change and
27:25
you're not looking. You know, Mr. Jones, could I get
27:27
exhibit B, please? Right.
27:29
So that means prep, prep and more prep.
27:32
Your witness exams have to be scripted.
27:35
He's got to know what you want when and it's got to switch
27:39
seamlessly. I would say direct examination,
27:43
the witness is testifying, cross examination, the lawyer is
27:47
testifying. The witness should just be
27:48
saying yes, no, yes, no, whatever the appropriate answer
27:52
is. In order to get a cadence, you
27:54
got to be working with your hot seat guy.
27:57
So as the witness is saying yes and no, whatever the appropriate
28:00
document a it's got have been admitted into evidence.
28:03
You got permission to publish it and it's got to come up at the
28:05
right time. And all that's about careful,
28:08
careful, careful prep. You use the phrase hot seat.
28:12
Can you, I think I know what you're talking about, but you
28:15
can you break down what you mean by that?
28:16
Sure. It's it's a vendor that sits at
28:19
a table behind you and that person's whole job is to show
28:23
the jury or the witness or the judge documents at the right
28:27
time, highlight the right section, pop out the right
28:31
section and all. I can't tell you how much, how
28:34
much time we spend scripting that and IT, the beauty of it is
28:39
it comes out unscripted, but it's the prep is everything.
28:46
Understood. Does that person also work with
28:48
I presume you videotape your even the phrase videotape is a
28:52
dated term, isn't it? I presume that you record
28:56
visually record your depositions and and does this person help
29:01
with either preparing things if the witness can't be there, but
29:04
but more importantly being able to hit somebody on cross with an
29:10
inconsistent statement? So my cross scripts are there
29:15
again, there's one way to try a case, right?
29:18
And I I say that as a joke because I think again, there's
29:21
many great trial lawyers to try cases differently.
29:22
But the way I try a case is my cross script looks as follows.
29:26
It says the word question colon, the question I'm going to ask
29:30
the witness, right? Then it says expected answer
29:33
with that witnesses answer. Then it has a site.
29:37
So every question in cross, we've got the question, you got
29:41
expected answer and you've got the site and the hot seat guy
29:44
has all the sites ready to go. So if you answer right when the
29:48
answer should have been left, I don't argue with you about it.
29:52
Ask a very simple question. I said, you remember when we
29:54
took your deposition, you, you, you swore an oath at that
29:57
deposition. You said you're going to tell
29:59
the truth. Everything you said at your
30:00
deposition was true. Yes.
30:02
And then the clip comes up and what that does is that last
30:07
question, everything you said at the deposition was true.
30:10
It sets up the deposition answer, which is the right one
30:13
that you want, against the trial answer which is the wrong one
30:17
that you don't. Want interesting?
30:21
And so that's very important. And then as soon as you get,
30:23
yes, everything I said in my deposition was true out, you've
30:26
got to have the evidence right up because you don't want the
30:28
witness giving you some other explanation at that point.
30:31
So that's the hot seat guy making that happen.
30:33
Understood and is there a reason why the hot seat person has pre
30:38
done the clips as opposed to just dragging and highlighting
30:41
and playing out of trial director?
30:43
I honestly don't know what the mechanics of what that person
30:47
does, but I do require that it happens immediately.
30:52
Understood. If a hot seat guy is fumbling
30:54
for minutes at a time, it kills the cadence of your exam.
30:58
Hence the term hot seat. And I imagine that if that
31:02
happens more than once in your courtroom, that that seat is
31:05
getting filled by somebody else. Or we're going to have a talk
31:09
with that person about why it's happening and try to fix the
31:11
problem. But yes.
31:12
Understood. We got into hot seat and
31:15
presentation of evidence. When I tension it off in terms
31:17
of how you want the courtroom set up, lots of T VS going back
31:21
to the the again, the prep work as you're getting there.
31:25
What other elements are the the Todd way to try cases, the one
31:30
way to try cases so. The other thing that I think is
31:32
very, very, very important is knowing what evidence is out
31:37
there. Because when the defense is on
31:39
cross and you've got to come up on redirect, much harder to
31:42
script, right? Because you don't know what
31:45
they're going to do on cross. And the only way you're going to
31:48
be able to do that is by having a good handle on all the
31:52
evidence that's out there on the cross examination you're
31:56
defending, right? So I like to have, we call them
32:00
witness binders. They're electronic complete
32:03
witness binders put together for every witness.
32:05
And however, whoever the lawyer is that's responsible for that
32:08
witness needs to know everything there is to know about that
32:12
witness. Because for example, in the
32:13
deposition we talked about saying right versus left, right,
32:18
if you realize the question that was asked is the deposition was
32:21
just slightly different, coming up with a different answer and
32:26
redirect, you can do that. And what that is, is do that one
32:31
time and your opposing counsel loses credibility for the whole
32:34
trial. And so to be able to catch those
32:37
nuances, you need to know everything there is.
32:40
The other piece of that is don't overload people.
32:43
If you're going to be at a trial, give people a number of
32:46
witnesses or they can know everything.
32:49
It doesn't help to give them 25 witnesses where they're going to
32:54
know enough about each one to get by.
32:55
You want them to know everything.
32:57
These days, what types of cases are you trying?
33:02
Our practice is is broad. So we do ERISA, we do consumer
33:08
and wage and error class actions, we do antitrust class
33:12
actions, we do big opt outs in antitrust.
33:15
We do mass tort cases. So I try all of those kinds of
33:20
cases. From the perspective of your
33:23
trial team, what does a team look like to go in to try one?
33:28
I'm going to call those a big or a complex case.
33:30
Is that a fair? Description that that is fair.
33:32
So it somewhat depends on the case.
33:35
Often in the big complex cases, you'll have Co counsel.
33:38
So I'm going to give you the answer without Co counsel or
33:40
I'll give you the answer with. There will usually be one or two
33:44
very senior lawyers at trial. Myself, Amy Eskin works for me,
33:49
my my brothers, my law partner, another season trial lawyer.
33:54
One or two of those people that have been through the ropes
33:57
understand how to try a case. Dennis, senior person below that
34:02
whose job is really to direct traffic, make sure that all the
34:06
things we've been talking about actually get done.
34:09
Below that is either junior partners or associates who are
34:12
writing witness exams, working with the lawyer who's going to
34:15
be taking the exam and making sure those exams are right.
34:18
And then behind that there are associates usually who are
34:21
writing motions, doing pocket briefs, bench briefs, things
34:24
like that. So that's a big team.
34:26
It's a big team, I feel. There's insert appropriate
34:29
sports analogy here in terms of team management.
34:32
How do you manage that team in terms of what they're doing, how
34:36
they're responding and making sure that everything is flowing
34:40
as you're getting ready to to to go into court for that that big
34:44
moment? So again, preparation,
34:47
preparation, preparation. But you've got to have somebody
34:51
whose job it is to do that. They can't be getting ready for
34:54
witnesses. They can't be doing openings and
34:58
closing. Someone's got to be the one that
35:00
just controls all of that. And I've got a one of my
35:04
partners that's great at that come to my trials with me and
35:07
does that. And it's really just that
35:09
ability to take all of that and make it work is worth its weight
35:15
in gold. Do you have a a title or a
35:17
description for that role as it just sounds almost like AGM or a
35:20
Coach I. Don't really have a title or but
35:23
you're right, that's pretty much what it is.
35:25
It's it's just somebody who make sure all the pieces are in place
35:28
and are come together. You're not old enough to know
35:31
this, but sleep becomes very important at trial and when I
35:36
was younger I could stay up and read briefs and look at the next
35:39
day's exams and things like that.
35:41
I can't do it anymore. So you need somebody who's who
35:45
can do all that and make sure that everything's clicking at
35:48
night. Yeah, I you, you're being very
35:50
kind on the sleep side. I as I've gotten older, I can't
35:54
try cases in the same way that I did when I was a kid.
35:57
That's right. That's right.
35:59
Youth matters. It does.
36:00
Yes. We know that you go to trial and
36:03
we know that you lead teams. Are you also being principal on
36:06
running cases or do you have other people running cases and
36:08
then you run the business and you run the trials?
36:11
So the way our firm is set up is we've got over each of our
36:15
departments, each of our practice areas, a partner.
36:18
Below that we've either got other partners or senior
36:22
associates. Below that we've got our junior
36:24
associates, Below that we've got our paralegals.
36:26
I don't sit over any department just because I run the firm and
36:30
it takes a ton of my time. As cases come to trial, I'll
36:36
tend to get involved at that point.
36:38
We also, but before we came on, we talked a little bit about
36:41
life on the road. Can can you help us understand a
36:46
little bit about what your life looks like at this point in
36:49
terms of be in a trial lawyer on the road?
36:53
I've always been a trial lawyer on the road.
36:55
I was telling you that, you know, since the advent of the
36:57
Class Action Fairness Act, and a lot of class actions are
37:00
federalized now, which means they go all over the country.
37:04
The advent of the MDL means even mass tort cases are all over the
37:07
country. And then our practice, it tends
37:12
to be nationwide just because of the kind of work we do.
37:14
So we're on the road a ton. A ton.
37:20
We usually work out of hotels. If we are going to be someplace
37:24
for a long time, maybe we'll do an apartment or an Airbnb.
37:27
I find settling in is very important.
37:31
I find having a workspace is very important.
37:33
When I when I try a case, I like to have a hotel room that's a
37:36
one bedroom essentially. Or sometimes my brother's trying
37:39
with me, it'll be a 2 bedroom with a workspace in the middle.
37:43
Because a lot of what happens doesn't happen when you're
37:47
sitting in the office or in the war room.
37:49
What it is is you're laying in bed.
37:50
You're like, I have an idea. And you pop out and you go to
37:53
that carefully crafted cross examination and you start, you
37:57
start changing it. That works as long as you can do
38:01
what you need to to get it changed.
38:03
But what often happens, you don't need someone in the back
38:06
office, someone, someone else you can talk to.
38:08
And you can't get all those people together.
38:11
What you can do is say, hey, come down to my to, to, to, to
38:15
my room where I've got a big workspace and let's work this
38:18
through, understood. And so that's important.
38:20
We touched on sleep and and like what I've described as
38:24
positioning the team with jury selection opening first witness
38:30
and which often times well I should ask you is your first
38:34
witness sometimes in California would be a 776 like a cross of a
38:39
defense witness to kind of set the stage.
38:42
That is my favorite way to do it.
38:43
It doesn't always work that way, but I think that is the best
38:48
way. I guess as I said, on direct
38:50
examination, the witnesses testifying, on cross examination
38:54
the lawyers testifying. So you if you can go right from
38:56
opening statement to hammer home your themes because you've got
39:00
tight control on the cross. I think it's the best way to
39:02
open a trial. I was laying foundation for my
39:04
next question, which is, you know that kind of cross
39:09
examination is a is a heavy lift to have it all teed up.
39:12
Do you tend to do jury selection into opening into that witness
39:17
or do you break it up with some of your other attorneys so that
39:21
you're not having to to lift all of that at the same time?
39:24
It depends on the trial and who's on the team.
39:28
I love cross examination. It's my favorite thing to do.
39:30
Like most lawyers. So sure, if I can stay in front
39:36
of the jury and do it, I will. Again, it part of it depends is
39:39
when can you get the witness? You know, the defense might not
39:41
give you the witness day, day one because they don't want you
39:44
there either. And you've already split up the
39:46
witnesses with your team. You're not going to make them.
39:49
At least we're not going to make a mid trial change on a witness.
39:52
So it might be somebody else comes up, but the best scenario
39:57
would be exactly what you're talking about.
39:59
From an outsider's perspective, because we don't do the the the
40:01
big class, the mask tort. That kind of work, it looks to
40:06
us from outsiders that the vast majority and and beyond what
40:10
happens in normal Pi world, the vast majority of these settle
40:13
just because the the exposure is so high and the risks are so
40:16
high. Yet you somehow found yourself
40:19
in trial. Can you help us understand how
40:22
that happens? So the year I won trial earlier
40:28
the year, yes, Ed and Fonte came to me after the ceremony.
40:33
He said, Todd, you know why you won that award?
40:35
I said. I said, why, Judge?
40:37
He said, because you're such a jerk when you come to see me.
40:42
And I think what he meant and what I'd like to think he meant
40:46
is that we will settle a case where appropriate.
40:49
But what we're not going to do is settle a case for less value
40:52
than we believe it's worth. And I think that's why we end up
40:55
in trial. I also think it's important to
40:59
try your cases. The way you get best value for
41:02
any case is if the other side knows you're going to try it and
41:05
you don't. You don't win every nobody wins
41:07
every trial. But even if you go to trial
41:10
against a lawyer and you lose that case, that lawyer knows
41:14
you're going to try your next case.
41:16
And I think that has value as well.
41:18
Thank you for listening and please join us next week as we
41:21
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41:24
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41:27
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