Latest / Coopers' Code / Lightning Strikes Twice: Retrying & Winning a Case in a Hostile Venue, Jeff Mitchell

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Lightning Strikes Twice: Retrying & Winning a Case in a Hostile Venue, Jeff Mitchell · Coopers' Code

• 0:00
  I mean, I've had so many cases where I've really tried to
• 0:03
  affect systematic system change. A lot of cases I've had systems
• 0:08
  and hospitals have been reorganized and redone, and
• 0:12
  that's what matters. Not so much the accolades and
• 0:16
  the awards and the attaboys and all that stuff.
• 0:19
  When I was young, I was very interested in that stuff.
• 0:21
  Now that doesn't matter to me. I'm old man.
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  So my advice would be do the best job you can and the the
• 0:29
  accolades will come. Howdy and welcome to the show.
• 0:34
  Cooper's Code focuses on legal issues and notable
• 0:37
  practitioners, distilling wisdom so we all achieve the best
• 0:40
  results for our clients. I'm Miles Cooper and I'm very
• 0:44
  excited for this conversation with the iconic Jeff Mitchell of
• 0:47
  Mitchell Leeds LLP. I remember you trying a case up
• 0:51
  in Shasta not once, but twice. And I think that getting a great
• 0:58
  verdict the first time and getting an even better verdict
• 1:00
  the second time that nobody serves and and as well as a huge
• 1:04
  case in Fresno. I bring these forward because
• 1:07
  not only are you suing doctors and nurses and hospitals who are
• 1:10
  sometimes the largest employer where you're at, you're also
• 1:13
  doing it in what people think of as traditionally RedState or, or
• 1:17
  bad locations for plaintiffs. Sure.
• 1:20
  So we alluded to the trial that you had in Shasta, trials that
• 1:24
  you had in Shasta and not a lot of people have had the
• 1:27
  opportunity to try a case twice. I'd love to get some learning
• 1:32
  from you in terms of how you approach that case.
• 1:36
  And and we're able to to win the same case twice.
• 1:39
  I think a lot of people worry that when they're trying the
• 1:42
  case a second time that that it loses some of the energy or the
• 1:45
  defense has seen all their tricks.
• 1:47
  It was interesting. It was a it was a unique
• 1:49
  situation. It was a stroke case.
• 1:54
  Younger gentleman got was pretty seriously brain injured and it
• 1:58
  was a great liability case. But the problem was the defense
• 2:02
  was while you're in Shasta County, no one wins here.
• 2:05
  And there were two defendants in their entire defense was to
• 2:08
  blame one another. And the defense essentially was
• 2:13
  it wasn't me, it was them. But even if it was me, it was
• 2:16
  still within the standard of care.
• 2:19
  And so that didn't fly. Trial one, there was an issue.
• 2:23
  The jury hung on causation on one of the two defendants.
• 2:28
  And there was a big dispute between the two insurance
• 2:30
  companies. And I won't belabor your
• 2:32
  audience with all the gory details, but I had to go back
• 2:35
  and retry it again against defendant 2 because that the
• 2:39
  jury hung on causation because defendant one was going to, you
• 2:43
  know, not pay an excess of the policy and there was a big
• 2:47
  dispute about that. So anyways, I had to try and I
• 2:49
  tried it the same way I'm. Hazy on the details, but I seem
• 2:52
  to remember you actually roomed with one of the defense lawyers.
• 2:55
  Yeah. Yeah, we that's right.
• 2:57
  So trial 1, there were two defense lawyers, multiple
• 3:03
  defenses of the two firms, and we all stayed in the same hotel.
• 3:06
  We had a great time. We all know each other.
• 3:08
  And then trial 2, I, the defense lawyer, and I rented AB and B in
• 3:15
  downtown Reading. We're very good friends to this
• 3:17
  day. And we had the best time trying
• 3:21
  that case against one another, living in the same house.
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  The innkeeper would come in and cook for us and say hi, and we
• 3:28
  would sit there and work at night and he prep a witness
• 3:31
  upstairs and vice versa. And it was great because we had
• 3:36
  so much fun and we respected each other so much, so much.
• 3:40
  It made it pure, truly enjoyable.
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  I still look back on it with utter joy, having to sit up
• 3:46
  there in the winter twice. Both times it was wonderful.
• 3:51
  But I tried it the same way. And, you know, we same judge,
• 3:56
  different jury, it was, it was great.
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  But I I you know that if it worked time one, it was going to
• 4:01
  probably work time 2 and it did, so it worked out fine.
• 4:06
  As we talk a little bit about relationships with opposing
• 4:09
  counsel, from an outsider's perspective, it looks like the
• 4:14
  Med Mao bar acts and engages in the way lawyers did 30-40 years
• 4:21
  ago. Bare knuckled at points but also
• 4:24
  so small that it's the same people time after time and and
• 4:28
  therefore more collegial bar is that.
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  Very much the case. It's interesting, you know, I
• 4:35
  was reared around kind of the old lions of the defense bar.
• 4:41
  They're all retired, you know, or gone and and and we used to
• 4:46
  settle cases of Tadage over lunch.
• 4:50
  You know it, It's changed quite a bit.
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  Is it every line of Pi practice has, but it's a very small bar.
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  The good defense lawyers I've been friends with for 2530
• 5:00
  years. I don't have a single I, I
• 5:02
  believe enemy. You'd have to ask them, but I
• 5:05
  don't have a single enemy. I believe in the business.
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  I truly like all the lawyers I have cases against.
• 5:10
  Some I like more than others, but I do get along with all of
• 5:12
  them. And I think the Med ball Mal
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  bark being as small as it is, it's still got that kind of old
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  timey feel where I can call him up and say, Hey, what do you
• 5:24
  need from me? I haven't been in the discovery
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  dispute in 25 years. Just doesn't happen.
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  I never get in arguments. I never get hot at anybody.
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  And I just think because you're if you're a good defense or
• 5:38
  you're going to be seeing me and Nathaniel a lot with cases that
• 5:43
  have a lot of meat on the bone. So you don't want to make it
• 5:45
  make us mad. And it's the same goes true for
• 5:48
  the defense lawyers, right? And the same goes true for the,
• 5:52
  you know, the the institutional defendants we see a lot.
• 5:55
  We all know who they are. You know, I get along with all
• 5:58
  those people and, and I'm honest and have frank discussions with
• 6:02
  them and I don't BS them and I'm transparent and that helps build
• 6:06
  trust. And that's a very important part
• 6:09
  of what we do. And I think the size of the Mad
• 6:11
  Mao bar lends itself to that. And you if you you're not always
• 6:16
  up upfront and transparent, you know, they're not going to want
• 6:20
  to pay you. People there's, you know, been
• 6:22
  studies about this people, the great salesman of the world are
• 6:26
  very likable people. People tend to want to
• 6:30
  compensate your clients if they like you and trust you and know
• 6:33
  that you're being straight with them.
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  So it's really, really important.
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  And I think in Pi, in every area of the law, but Med Mau is a
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  little different because due to its size, the people that really
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  do it exclusively. On the size front, I I see two
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  things that have happened in the legal field that lead me to a
• 6:51
  question about whether others are are attempting to come in.
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  One is the change in Micra where they, after way too long, made
• 6:59
  some modifications to make it not as awful in terms of the
• 7:05
  impact on plaintiffs and plaintiffs lawyers.
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  And the other is the advent of advertising attorneys from
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  Southern California moving N. Have you seen any impact in your
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  practice from those changes? Very interesting question.
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  It might be a complex answer. After the change in the law, I
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  expected there to be a flood of non malpractice specialist
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  coming in. I don't think that's happened.
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  And that could be anecdotal. I'm I probably don't know.
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  I don't even need data to back that up, But I don't think
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  that's happened. I think a lot of Pi lawyers are
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  afraid of Med Mao. I think because it's very
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  expensive, the odds are stacked against us.
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  If you look at the read the jury instructions in Casey writ
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  large, you kind of look, if you, if I were to look at them as
• 7:58
  someone that doesn't do Med Mao, I go, what?
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  God, holy crap, how do you win a case given some of the jury
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  instructions in the data in terms of win loss percentages?
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  So I haven't seen a real onslaught of new people.
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  And all the mass advertisers, mass marketing firms, they don't
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  want to do it. So they call me.
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  And if I had a dime for every time one of those firms called
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  me wanted me to take all the Med Mao stuff off their hands to
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  lie, I could buy a pretty nice lunch off those Dimes.
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  The problem, you know, you, you said there is a business person
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  and you go, wow, you know, I can increase my intake by 24.
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  Well, how you going to staff that?
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  How you going to vet it? Are they, if they, they going to
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  vet it for you? OK, if they say they're going to
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  vet it for you, do they know how to vet it?
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  So that's an interesting. And then you, you think you kind
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  of follow it out to its linear end.
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  There's a lot of people calling those firms for malpractice
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  cases. What they're doing with them, I
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  don't know. We have a few marketing kind of
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  firms we deal with that are smaller and they'll that a
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  little bit for us we have long relationships with.
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  But you know, that's a very interesting question.
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  I don't know what the data is. The average Pi consumer, if
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  they're a malpractice lawyer and they see billboards or go, oh
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  gosh, this person's always saying injured, injured,
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  injured, I'm going to call them because I guarantee those calls
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  are happening. But yeah, it's, it's a kind of
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  an interesting tightrope we're walking because we could, I
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  could have 50 lawyers and, you know, 60 paralegals.
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  If I wanted to staff and finance all that stuff, I could do it.
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  But I just don't have the bandwidth and don't want to
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  because these cases are it kind of leads into the most important
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  thing in malpractice is you've got to really vet your cases.
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  And you know, we're turning down 99% of the calls we get and
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  we're getting a lot. It's all about scale.
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  So that's, that's one thing is a firm we're really in the middle
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  now is like we've gotten a lot bigger very quickly because
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  we've been very successful that we're trying to figure out kind
• 10:09
  of how big do we want to get. It's an interesting question
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  about the mass marketing stuff where that kind of goes down the
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  road. In that vein, so I was at a firm
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  where we would do some medical malpractice.
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  I've I've done a little bit of Med Mal myself.
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  What I learned a long time ago is that dabbling in bed Mal is
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  dangerous. You're either all in or you
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  should refer out. 100% agree. And that then gets to the
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  vetting process that you have to go through.
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  How do you vet Kate? Because I know some of these
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  cases you can't even figure out if there's a case until you get
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  records in. Sometimes you might need an
• 10:51
  expert to take a look at it. How do you vet those 99.9% to
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  get the 1% point 1% that you take?
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  Sure. So, and I think this is
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  applicable to any firm nationwide that really
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  specializes in mid Mal. You have to have a very robust
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  intake operation with people that really, really know what
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  they're doing. So we've got three or four
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  people that that's all they do all day long.
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  Two of them have one's an RN, one's APA have medical training.
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  One of the, the, the person who leads our team, he's worked for
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  me for almost 30 years just doing Med now.
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  So they are very good at looking at metrics of a case, the
• 11:37
  profile of a case in terms of economic metrics.
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  And we're at the point now we're looking at least if we look at
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  is really large stuff. If the if cases aren't meeting
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  the metric that you know, the cases are referred out or
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  declined. But you have to do it in a way
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  that's polite and artful and building relationships because
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  those people could come back later with other cases of their
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  loved ones. So you want to leave a good
• 11:58
  impression. So, but my advice would be, you
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  know, build out a very robust intake operation.
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  The people that really know what they're doing.
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  I frankly do very little intake myself.
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  I most of my cases, they show up on my docket.
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  I know they've been well vetted. And once in a while.
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  Do we miss? Yeah, not not that often, but
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  yeah. You know, we we all have kind of
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  different roles. If there's a case that comes in
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  that the intake Staffs kind of on the edge, they'll go to my
• 12:29
  partner first. There's kind of a thing going
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  and they they know if they go to me, I'm going to probably say
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  no, but it's good. Sometimes, you know, my partner
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  and I'll disagree. He might like a case and I
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  don't. And we kind of talk and he might
• 12:42
  go, yeah, you're right. Or I might say, you know, you're
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  right. So there's a lot.
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  It's kind of a cone. It's got to work its way up.
• 12:52
  Pi. It's a little different.
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  I would assume. I don't have much experience and
• 12:57
  Pi cases, but we are that is where firms fail or succeed is
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  on on that dimension of a law firm doing that now you can't
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  dabble. It's like it's one of those
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  kinds of it's like anything else.
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  The more reps you have, the better you're going to be,
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  right? If I had a major bicycle case
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  with severe injuries, could I do it?
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  Probably when I get as a good of result, as you would know.
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  So I would send those cases to you because you're better at it.
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  And the lesson there is you get occasion you're not good at it
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  or or don't do those cases associate somebody in or send
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  them out. It's better for the client.
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  And you ended Med Mao. I think of any area of Pi that
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  that's the most true of because you it's like, yeah, look at the
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  football analogy, right? Yeah, you've got a wide
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  receiver. But then if you ask him to play
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  tight end, could they play tight end?
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  Probably. Would they be very good?
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  Probably not. So I think the same applies to
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  what we're doing. It's just one of those things
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  where you have to have reps, You have to do it day in, day out,
• 14:13
  year after year after year. And you get in a lot of that's
• 14:16
  relationship building, the defense bar is not going to take
• 14:19
  you seriously unless you're somebody that they know has been
• 14:22
  doing it a lot. And yeah, you can prove them
• 14:25
  otherwise. API lawyer could do a great job
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  in men. Mao case, I think that's an
• 14:29
  outlier, but that I'm sure that occurs because there's a lot of
• 14:32
  good Pi lawyers that I know personally that could do
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  anything. I know a lot of them, you know a
• 14:37
  lot of them. But that's the exception rather
• 14:39
  than the rule. Yeah.
• 14:41
  Yeah. But build that intake operation.
• 14:43
  That's that's very, very important.
• 14:47
  Do you have any particularly favorite trial moments that
• 14:52
  stand out for you? Anything in your history where
• 14:55
  you're like, yeah, you know, I, I could stop my career now after
• 14:59
  having had that happen? Yeah, I I actually have one.
• 15:02
  It's in that litigation we had in Fresno.
• 15:05
  And for our listeners, can you just give us an overview of what
• 15:08
  that case I'll. Do it as quickly as I can.
• 15:12
  There was a large, large private hospital down there that was
• 15:16
  running very robust, lucrative cardiac surgery program led by a
• 15:22
  surgeon that was doing some things you shouldn't been doing,
• 15:25
  etcetera. The hospital knew there was some
• 15:28
  things that were going on that shouldn't have been going on,
• 15:31
  but they kind of kept these this group around because they were
• 15:34
  making a lot of money. And since you may be bound by
• 15:37
  things, but I am not, my memory of this case is that it was a
• 15:41
  surgeon who was in essence directing unnecessary heart
• 15:44
  procedures to feather their nest.
• 15:45
  And you don't, Correct. Yeah.
• 15:47
  Correct. That was one of the allegations.
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  There were other things going on, but in any event, there was
• 15:52
  there was one case and then other cases came out of it and
• 15:55
  it was all kind of interconnected.
• 15:57
  I'm trying to bring as brief as I can, but in in any event that
• 16:00
  the, the person that made the case go was a whistleblower who
• 16:06
  is a cardiac perfusionist. And they're the people in any
• 16:10
  open heart surgery that they run the bypass machine.
• 16:14
  And they're, they're not nurses, they're not doctors.
• 16:17
  They're highly trained special allied health specialists.
• 16:21
  They run antique monitor and administer some of the
• 16:26
  anticoagulants. They're running the, you know,
• 16:28
  you're on bypass, the perfusion is running the bypass, Very
• 16:32
  important job. So the whistleblower in the
• 16:36
  underlying case, you kind of got it out into the public sphere
• 16:40
  because it was being well shelved by the hospital system.
• 16:45
  They ended up when it became known who it was, the hospital
• 16:48
  fired him and he was sued by for defamation by the surgeon.
• 16:54
  And then he, he was the critical witness the entire trial that
• 16:57
  was months long. And I put him on the stand and,
• 17:01
  and you know, the defense lawyers had vitriol for him.
• 17:06
  I admired him. I think he was deposed for a
• 17:09
  week and I put him on the stand and, you know, he basically came
• 17:13
  in and aired all The Dirty laundry.
• 17:16
  And I remember putting him on. He was crossed vigorously for
• 17:20
  more than a day, I think. And I remember redirect, I was
• 17:25
  sitting there and I'm trying to think I'm kind of a movie buff.
• 17:29
  And I thought, you know, it reminded me of a movie involving
• 17:34
  a whistle blower. And if you remember the movie,
• 17:36
  it was a Michael Mann film called The Insider with Al
• 17:40
  Pacino, Russell Crowe. It was about the tobacco
• 17:42
  litigation. And at the end of the movie was
• 17:46
  all about whether 60 Minutes was going to air this interview or
• 17:49
  he, you know, lift the tobacco industry on fire.
• 17:54
  He asked him, you know, your life's been ruined by the
• 17:56
  tobacco companies. You've lost your family.
• 17:58
  You know, you're out of a job. If your life's they've been, you
• 18:01
  know, they're trying to make your life a living hell.
• 18:04
  Given all that, would you do it again?
• 18:06
  And he says, yeah, I'd do it again.
• 18:07
  And it was so powerful to me from a cinematic standpoint.
• 18:11
  I sat there and I asked this witness.
• 18:13
  And I admire him immensely to this day.
• 18:16
  He ended up getting a large arbitration ward against the
• 18:18
  hospital system, after which I got almost as much comfort from
• 18:23
  the underlying verdict we got. And I stood up and I asked him.
• 18:27
  I said, you know, you've been run out of Fresno, a place you
• 18:29
  love. You've been sued.
• 18:33
  You know, you've been, you know, ripped through the media by
• 18:35
  these people. Given the immense effect this
• 18:38
  has had on your life, would you do this again?
• 18:40
  He goes, yeah, I'd do it again. And I remember sitting down and
• 18:45
  I went to Ricardo, and he goes, where where the hell did you
• 18:48
  come up with that? And I said from a movie and when
• 18:52
  we talked to the jury after, all they talked about is they wanted
• 18:56
  to erect a statue, this guy in front of the courthouse.
• 18:58
  Really. Yes, and, and it made me so
• 19:01
  proud that we could like empower this guy to do this and give
• 19:06
  him, you know, make him feel comfortable.
• 19:07
  And it really, that moment in the courtroom, you could hear a
• 19:11
  pin drop and it was almost shocking to me how powerful it
• 19:16
  was. I didn't know I was capable of
• 19:17
  doing anything like that. And it wasn't really me.
• 19:19
  It was him. I just gave him the tools to do
• 19:22
  it. My career ended today.
• 19:25
  Doing something like that. It's all worth it.
• 19:28
  Has nothing to do with the money.
• 19:29
  You're changing people's lives. We, I felt like we changed
• 19:33
  people's lives with that case. We saved lives with that case.
• 19:37
  And that makes me very, very, very proud.
• 19:41
  In a parallel track, is there anything that you would want to
• 19:46
  share with a young you or younger lawyers now about how
• 19:54
  you might have done something different or what you're really
• 19:56
  glad that you did in terms of your practice?
• 19:59
  What I would do different, it's a very good.
• 20:03
  I've never thought about that. There's probably, if I had a lot
• 20:06
  of time to reflect, there's probably a lot of things I'd do
• 20:09
  differently. I think if I had to do it all
• 20:12
  again, I was very, when I first became a planes where I had some
• 20:16
  success. I think I let it get a little
• 20:17
  bit to my head when I was younger.
• 20:19
  I think I was very, you know, looking back on it, driven by,
• 20:24
  you know, people tell me how smart I was and how great I am
• 20:26
  and you know, and I really sought that out.
• 20:31
  That's not what matters. What matters is whether you do
• 20:34
  me a good job for your clients. And you know, the older I get,
• 20:37
  the less I care about all the accolades and all the awards and
• 20:41
  all the different things that come along with the types of
• 20:43
  cases we handle and what you do. My advice to young lawyers is
• 20:47
  like just try to learn and do as much good work for your clients
• 20:51
  as you can and the accolades will come.
• 20:56
  The satisfaction from our job isn't really isn't from that.
• 20:59
  It's from the good you're doing for your clients in the
• 21:02
  community. I mean some of these, I mean
• 21:05
  I've had so many cases where I mean that just brings me to
• 21:08
  thinking about some of them where I've really tried to
• 21:11
  affect systematic system change. A lot of cases I've had systems
• 21:17
  and hospitals have been reorganized and redone and
• 21:21
  that's what matters. And and that not so much the
• 21:25
  accolades and the awards and the Atta boys and all that stuff.
• 21:28
  When I was young I was very interested in that stuff.
• 21:31
  Now that doesn't matter to me. I'm old man.
• 21:35
  So my advice would be do the best job you can and the the
• 21:38
  accolades will come. As we get into the final
• 21:43
  strokes, is there anything else that you think you'd like to
• 21:47
  bring forward for our listeners? Yeah, I've talked about it a lot
• 21:50
  over the years, how important mentoring was to me and how
• 21:58
  vital it is is a community of lawyers.
• 22:02
  And I mean, this applies to both sides of the bar really.
• 22:07
  Seek out mentors, engage with mentors.
• 22:12
  You always have to be yourself, right?
• 22:15
  That we're all different. I'm different than you.
• 22:18
  I'm much different than my partner.
• 22:20
  But seek out mentors and soak it in.
• 22:23
  I would have not done any of the things I've done in this career
• 22:26
  if I wouldn't have had great mentors that I've learned from
• 22:29
  in little ways. And I give all of them a lot of
• 22:34
  credit for everything I've ever done.
• 22:35
  And, you know, we've done as a firm and, you know, really,
• 22:39
  really, really seek out mentoring.
• 22:41
  We, we spent a lot of time with our young lawyers sending them
• 22:44
  out to talk to other people. You know some of them because
• 22:48
  they can only learn so much from me and they can only learn so
• 22:52
  much from my partner. Be exposed to other lawyers that
• 22:54
  do different things and get tips from them.
• 22:58
  Just be being around people. You learn by osmosis and I think
• 23:02
  that is incredibly important. I mean, I'm almost 55 years old.
• 23:06
  I'm still learning everyday. I learned from you.
• 23:09
  You do different things than I do, but I learned a lot from you
• 23:12
  and other people I know. So that that to me is the advice
• 23:15
  I give to a younger lawyer or any lawyer is to learn I'm
• 23:21
  always listening, I'm always reading, I'm always talking to
• 23:24
  people. It makes you a better lawyer.
• 23:26
  And so that's that's the best advice I could give.
• 23:29
  Always be learning. Always be learning.
• 23:31
  Yeah. Well, thank you, Jeff.
• 23:33
  I really enjoyed our conversation.
• 23:35
  Thank you, Miles. I appreciate it.
• 23:37
  And thank you for listening today.
• 23:39
  Please e-mail us at podcast at Coopers dot law with questions,
• 23:42
  comments, feedback and suggestions for who you would
• 23:44
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• 23:47
  Share us with a colleague and leave us a five star review on
• 23:49
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• 23:52
  there, happy hunting.