Latest / Raising the Bar with RebuttalPR / Bryan Aylstock on Creativity, Collaboration, and the 3M Fight

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Bryan Aylstock on Creativity, Collaboration, and the 3M Fight · Raising the Bar with RebuttalPR

• 0:00
  [SPEAKER_01]: Welcome to Raising the Bar with Rebuttal PR.
• 0:02
  [SPEAKER_01]: The podcast will be elevate the stories of the plane of spar and dive into the key trends, shaping the civil justice system today.
• 0:09
  [SPEAKER_01]: I'm your host, Ray D. Lorenzi, and in each episode, we'll bring you insightful interviews with leading attorneys, expert perspectives on current legal events, and in-depth discussions on the issues that matter most.
• 0:21
  [SPEAKER_01]: Now let's jump in.
• 0:23
  [SPEAKER_00]: Judges are human, they don't always get it right.
• 0:27
  [SPEAKER_00]: But they try to get it right.
• 0:29
  [SPEAKER_00]: And if they don't get it right, you know, there's an avenue for others in the higher courts to deal with it.
• 0:36
  [SPEAKER_00]: And the more we can educate people about that, the better off our entire society is.
• 0:46
  [SPEAKER_01]: Hey, everyone.
• 0:47
  [SPEAKER_01]: Welcome to a new episode of Racing The Bar with Rebuttal PR.
• 0:50
  [SPEAKER_01]: I'm your host, Reed D. Lorenzi.
• 0:51
  [SPEAKER_01]: And today, I'm joined by Brian Alstock of Alstock, Whicken, Creason, Overholtz in Pensacola, Florida.
• 0:58
  [SPEAKER_01]: Brian has led some of the largest mass torrets of the last twenty years.
• 1:03
  [SPEAKER_01]: Three, I'm your plugs.
• 1:04
  [SPEAKER_01]: Zola, Deppra Rivera, Vandia.
• 1:07
  [SPEAKER_01]: Brian, thanks so much for joining the podcast today.
• 1:09
  [SPEAKER_00]: Thanks for having me, right?
• 1:10
  [SPEAKER_00]: Really appreciate it.
• 1:11
  [SPEAKER_01]: So, Brian,
• 1:12
  [SPEAKER_01]: I always like to start and find out a little bit behind the person kind of what makes him tick.
• 1:17
  [SPEAKER_01]: What made you want to become a lawyer when the first place?
• 1:19
  [SPEAKER_01]: Take us back to Young Brian.
• 1:23
  [SPEAKER_00]: Well, it might be scary for some of you, but Young Brian wanted to be an engineer.
• 1:29
  [SPEAKER_00]: I got into electrical engineering school and I continued with one class and I'm like, this isn't going to be for me.
• 1:36
  [SPEAKER_00]: So I was lucky enough to kind of stumble into the legal field.
• 1:41
  [SPEAKER_00]: I became a history major and
• 1:43
  [SPEAKER_00]: and took an aptitude test and long story short.
• 1:46
  [SPEAKER_00]: I scored very well on that, or being a police officer.
• 1:49
  [SPEAKER_00]: So here I am as a lawyer.
• 1:51
  [SPEAKER_00]: So growing up in any history and law whatsoever, I had no family or friends of the family who were lawyers.
• 1:59
  [SPEAKER_00]: It just, I lucked out at something I loved to do and I'm really glad I'm, I don't think I'd be a great electrical engineer as it turns out.
• 2:07
  [SPEAKER_00]: So what was it about engineering that didn't suit you?
• 2:11
  [SPEAKER_00]: Well,
• 2:12
  [SPEAKER_00]: You know, it's extremely rigid and, you know, really, it was an awful lot of math and really no, you know, no nuance to much of that in my view.
• 2:27
  [SPEAKER_00]: And, you know, it kind of work in the nuance when it comes to the law.
• 2:31
  [SPEAKER_00]: And you can find ways to advocate for your clients that others don't.
• 2:35
  [SPEAKER_00]: And it really suits me well.
• 2:38
  [SPEAKER_01]: So, you know, as you say that, I don't think creativity and the law are things that people necessarily put together.
• 2:46
  [SPEAKER_01]: But it seems like you view it another way in your approach, you know, you take that creativity and put it into your practice.
• 2:56
  [SPEAKER_00]: Well, I think you have to.
• 2:57
  [SPEAKER_00]: If you can find a way, if you can find a better way to make an argument, you should be doing that.
• 3:02
  [SPEAKER_00]: And oftentimes we do.
• 3:04
  [SPEAKER_00]: One of the things that I do love about mass-torts
• 3:07
  [SPEAKER_00]: is, yes, there's a lot of similarities between one mass tort and another.
• 3:11
  [SPEAKER_00]: There's also always room for improvement.
• 3:14
  [SPEAKER_00]: There's always room for education.
• 3:16
  [SPEAKER_00]: I'm always learning whether it's the next scientific literature article that I have to get up to speed on or really.
• 3:25
  [SPEAKER_00]: The laws constantly changing.
• 3:27
  [SPEAKER_00]: The judges are all very different, so it also suits my personality.
• 3:33
  [SPEAKER_00]: I think I have a little bit of ADD and me, so it allows me to
• 3:37
  [SPEAKER_00]: to always be improving, always be learning.
• 3:41
  [SPEAKER_01]: So in two thousand one, you started AWKO.
• 3:45
  [SPEAKER_01]: What was the journey that got you to the point of, you know, I think I can do this on my own and I have a vision to do it.
• 3:53
  [SPEAKER_00]: Well, I had been working a lot in the die drug space and the
• 3:58
  [SPEAKER_00]: There was two rounds of, as most of you probably know, of the die drugs.
• 4:02
  [SPEAKER_00]: It was the first round of opt-outs, and then there was a class action resolution with another round of opt-outs.
• 4:08
  [SPEAKER_00]: I was presented with the opportunity where I had done a lot of work in the die-it drug space, in the round one opt-out world.
• 4:17
  [SPEAKER_00]: Those cases resolved, not many people who were involved in round one, moved on to round two.
• 4:24
  [SPEAKER_00]: And I saw an opportunity to do that and and build a firm from that.
• 4:29
  [SPEAKER_00]: And I took it out.
• 4:31
  [SPEAKER_00]: I certainly didn't know how it would turn out, but I'm a glad I did and it turned out right.
• 4:36
  [SPEAKER_01]: Did you have a vision at the time of what you wanted to become or it was like, you know, we're just going to let it ride and we'll see where we take it.
• 4:44
  [SPEAKER_00]: Well, you know, mass torture hard.
• 4:48
  [SPEAKER_00]: They have a way of just
• 4:50
  [SPEAKER_00]: They're all encompassing.
• 4:51
  [SPEAKER_00]: You can work, twenty-four hours a day, seven days a week, and not learn everything about what it is that's in front of you.
• 4:59
  [SPEAKER_00]: So there's a little bit of a balance there in trying to figure that out, but it's also, I think, important for us all to realize that these are individuals.
• 5:08
  [SPEAKER_00]: Yes, there's a whole bunch of the same injury or whatever happened.
• 5:12
  [SPEAKER_00]: But they are individuals, they need to be treated as individuals, and although
• 5:17
  [SPEAKER_00]: Systems can be set up to make you more efficient and you're firm more efficient and certainly courts are struggling with it by way of case management systems and other things to manage the docket.
• 5:29
  [SPEAKER_00]: Having that individual emphasis in a mass tour is something that we've tried to create.
• 5:38
  [SPEAKER_00]: It's not perfect, but it's certainly something that we strive for.
• 5:43
  [SPEAKER_01]: So when there is an emerging case, let's say there's an FDA recall on a drug or a device or a new warning rather, or there's a product recall, what, how do you look at that case or that incident and decide, this is something where we can make an impact?
• 6:03
  [SPEAKER_00]: Well, I've been doing this long enough to know usually when there's a warning change or certainly when there's a recall, there's a whole lot more to the story.
• 6:12
  [SPEAKER_00]: the company usually knows a lot more than they're letting on and oftentimes they've been hiding.
• 6:21
  [SPEAKER_00]: In the highly competitive pharmaceutical market, we've seen the ads that just are plastered all over TV.
• 6:28
  [SPEAKER_00]: Those ads are expensive and they work because people go out and then buy those drugs and they're very expensive as well.
• 6:36
  [SPEAKER_00]: So there's an enormous incentive
• 6:39
  [SPEAKER_00]: by the drug companies not to warn about certain things or to cover up certain things.
• 6:45
  [SPEAKER_00]: And so what we've seen is when those happen, there's usually more.
• 6:51
  [SPEAKER_00]: So then we look at what is the injury that created the need for the warning change?
• 6:58
  [SPEAKER_00]: How many people use the drug?
• 7:00
  [SPEAKER_00]: What companies were involved sometimes we anticipate a company may go bankrupt and they certainly have.
• 7:07
  [SPEAKER_00]: And that puts us in a whole different sphere
• 7:10
  [SPEAKER_00]: and a whole different way of looking at it.
• 7:13
  [SPEAKER_00]: And then we evaluate, all right, is this an injury that we think we can connect?
• 7:18
  [SPEAKER_00]: Because some of the case-specific causation issues can just really make a mass-twork very difficult.
• 7:26
  [SPEAKER_00]: A Vandy is a good example when we were first getting into a Vandy.
• 7:30
  [SPEAKER_00]: The Cleveland Clinic came out with a meta-analysis showing that it caused heart attacks.
• 7:37
  [SPEAKER_00]: And a Vandy is a diabetes drug.
• 7:40
  [SPEAKER_00]: We looked into it and said, well, gosh, more than sixty percent of diabetics are going to die from a heart attack because diabetes causes heart attacks.
• 7:49
  [SPEAKER_00]: How are we going to disentangle that?
• 7:51
  [SPEAKER_00]: And then we started talking to the experts and we tried to figure out, yes, this is something that we can make an impact on.
• 8:00
  [SPEAKER_00]: Even though it's difficult, we think we can do it.
• 8:03
  [SPEAKER_00]: Other torts are a little bit different, you know, if it's
• 8:08
  [SPEAKER_00]: an injury that's not as significant, maybe it's not worth the effort in this particular case or maybe my and my firm's resources could be better utilized somewhere else where the injury is more significant.
• 8:23
  [SPEAKER_00]: So it's really a balance of what's going on in the law firm as well as kind of what we see from the medical literature, how strong the association is, where the case might go by way of
• 8:38
  [SPEAKER_00]: where the defendant is, there's a lot that goes into it.
• 8:43
  [SPEAKER_01]: So, you know, the mass tour bar, I think is known for being, you know, somewhat difficult to break into.
• 8:50
  [SPEAKER_01]: After you did the first two rounds of Fennfenn, when did you, what was the case that you felt like, you know what, we've, we've not made it, but, you know, we know what we're doing here.
• 9:00
  [SPEAKER_00]: Well,
• 9:01
  [SPEAKER_00]: I knew we knew what we were doing.
• 9:03
  [SPEAKER_00]: I didn't know what the time was exactly how expensive it would be to be doing what we were doing.
• 9:10
  [SPEAKER_00]: Luckily we had the resources that we needed at a time when it was very difficult to get those resources.
• 9:18
  [SPEAKER_00]: Litigation funding wasn't a thing.
• 9:20
  [SPEAKER_00]: We went to our bank and said, we need a line of credit and they said, well that's great.
• 9:26
  [SPEAKER_00]: Put a CD with us and we'll give you a line of credit right back.
• 9:31
  [SPEAKER_00]: obviously isn't a way to run a mass tour because it is very expensive and the time frame from the inception of the mass tour to the conclusion of the mass tour can be very long.
• 9:43
  [SPEAKER_00]: I've seen it get longer as as my career as has developed than it used to be used to be you know three to five years maybe you can get get some sort of resolution to your clients for your clients and it's it's unfortunately becoming longer and longer
• 10:01
  [SPEAKER_00]: And there are a lot of reasons for that, but we're doing what we can to encourage the courts to move quicker, encouraging other lawyers to make sure that their claims are bedded so that the wheels of justice don't get gummed up by claims that shouldn't be there.
• 10:19
  [SPEAKER_00]: And there's a lot of factors to it.
• 10:21
  [SPEAKER_00]: Sometimes the cases are just so large.
• 10:25
  [SPEAKER_00]: There was just too many victims.
• 10:27
  [SPEAKER_00]: We saw that in that transvaginal and mesh litigation,
• 10:30
  [SPEAKER_00]: where hundreds of thousands of women whose lives are destroyed because of this mesh product that gets bound up in their bodies.
• 10:40
  [SPEAKER_00]: And there's only so many courts, so many district judges in the country to be able to handle it, so many state courts.
• 10:48
  [SPEAKER_00]: So it becomes incumbent on us to do the best we can for the ones that are first.
• 10:52
  [SPEAKER_00]: So we can show the companies that we're not going anywhere and they need to resolve everybody's case.
• 10:59
  [SPEAKER_01]: I want to take some time to talk about the three-em-year plug case, which you were certainly on the map before that, but I think kind of put you in the firm in a different, you know, stratosphere in many ways.
• 11:11
  [SPEAKER_01]: You will be counsel in that case, also as the largest mass tour in US history.
• 11:17
  [SPEAKER_01]: Yeah.
• 11:18
  [SPEAKER_01]: Bring this back to when you first heard about the case, not the case, but the injuries and the product and what was your reaction at the time?
• 11:28
  [SPEAKER_00]: Well, so we're based in Pensacola.
• 11:31
  [SPEAKER_00]: It's a very veteran heavy here.
• 11:34
  [SPEAKER_00]: My dad, grandfather, great-grandfather, all veterans.
• 11:37
  [SPEAKER_00]: So we're very, we have a lot of veterans that work for us.
• 11:41
  [SPEAKER_00]: We're very, very interested in helping veterans.
• 11:46
  [SPEAKER_00]: So that was the first thing that struck me.
• 11:48
  [SPEAKER_00]: This is pretty jacked out when these stars and stripes article came out and they had pled guilty
• 11:58
  [SPEAKER_00]: I shouldn't say pled guilty.
• 11:59
  [SPEAKER_00]: They resolved the litigation brought by the United States government for these earplugs that were defective.
• 12:07
  [SPEAKER_00]: We have to do something to achieve justice for all these veterans.
• 12:14
  [SPEAKER_00]: And frankly, we were told and you can go back and research their memos written by experts or so-called experts on mass-torts.
• 12:23
  [SPEAKER_00]: We're going to lose because the government contractor defense is going to insulate
• 12:28
  [SPEAKER_00]: and it's a very powerful defense.
• 12:30
  [SPEAKER_00]: It's, you know, based upon the Supreme Court precedent of the Boyle decision.
• 12:35
  [SPEAKER_00]: But we looked at it and we're like, now, you know, there's got to be more here.
• 12:39
  [SPEAKER_00]: And there was, there was a lot more.
• 12:42
  [SPEAKER_00]: There was, you know, many smoking gun documents that demonstrated that one that's really wasn't at all designed by the government.
• 12:52
  [SPEAKER_00]: It was designed by three amp.
• 12:55
  [SPEAKER_00]: but also that they knew about it and they didn't tell anybody.
• 13:00
  [SPEAKER_00]: So, you know, I was surrounded by just a huge number of such talented lawyers that helped so many of these veterans get to trial and the ones that did overwhelmingly won.
• 13:19
  [SPEAKER_00]: The ones that didn't I still feel for because I know that they were all deserving,
• 13:25
  [SPEAKER_00]: the issue there in addition to government contractor was case specific causation like it is in most of these because we all know that loud noises can cause hearing loss but was the soldier wearing it at the time was there other things going on that could cause it and and so you know it there always a challenge but I'm thankful for for the lawyers that the judge selected as well
• 13:53
  [SPEAKER_00]: to participate in the case and we also had a judge who didn't get the memo on how long these cases are supposed to take.
• 14:01
  [SPEAKER_00]: She moved the cases quickly toward resolution one way or the other and she made the findings promptly and we certainly worked hard and it was COVID time for much of it as well.
• 14:14
  [SPEAKER_00]: So whereas a lot of
• 14:17
  [SPEAKER_00]: Lawyers really didn't have a lot to do.
• 14:19
  [SPEAKER_00]: We were busier during COVID, and then we were outside of it.
• 14:22
  [SPEAKER_00]: Depositions were happening, trials were happening.
• 14:25
  [SPEAKER_00]: We just worked.
• 14:27
  [SPEAKER_00]: And that was, you know, to the benefit of all the clients, which I'm grateful.
• 14:31
  [SPEAKER_01]: I know that the early stages of that case really in the sympathy there were lawyers that looked at it and were like you know what hearing damage you know service members you know I'm I don't see it you know like how do we prove this case up I'm curious you don't have to name names was there anyone in your office who looked at it like are we sure on this one well yeah I mean even I mean I
• 14:55
  [SPEAKER_00]: My grandfather and great grandfather, they served in World War I and World War II.
• 15:00
  [SPEAKER_00]: They had, they were hard to hearing and sort of the natural reaction was, well, of course, it's sort of like that, that's what's going to happen to you.
• 15:09
  [SPEAKER_00]: But what we saw first of all in the documents, but also the government had had recognized this decades ago and had put such great resources into
• 15:22
  [SPEAKER_00]: preserving the hearing of our veterans.
• 15:24
  [SPEAKER_00]: It's first of all the right thing to do for people who serve this country, but it's also critical for being battle ready.
• 15:32
  [SPEAKER_00]: If the veterans can't, if the active duty people rather can't hear their commanding officer, they're not ready for duty.
• 15:39
  [SPEAKER_00]: Things can go wrong.
• 15:40
  [SPEAKER_00]: You lose battles because people can't hear.
• 15:43
  [SPEAKER_00]: So they devoted huge amounts of resources to hearing conservation.
• 15:47
  [SPEAKER_00]: There was a
• 15:49
  [SPEAKER_00]: Some of our experts headed up the entire department that Congress created to try to create better readiness for our active duty people.
• 15:57
  [SPEAKER_00]: And we had the documents from three M itself saying, this earplug will protect you.
• 16:03
  [SPEAKER_00]: You don't have to lose your hearing to serve your country.
• 16:06
  [SPEAKER_00]: All those statements really, once we got into it, we're like, oh, that's not something that's going to carry the day in front of a jury when they've been telling the veterans in big
• 16:18
  [SPEAKER_00]: big lawsuit posters, we'll protect you up to, you know, hundred and ninety decibels, which is almost painful to the year.
• 16:28
  [SPEAKER_00]: So, you know, all these cases have challenges.
• 16:32
  [SPEAKER_00]: The trick is how do you overcome them and getting, avoiding the group think, getting other smart people in the room with you to figure it out.
• 16:44
  [SPEAKER_00]: And that's what we did.
• 16:44
  [SPEAKER_00]: I mean, I can't tell you how many
• 16:47
  [SPEAKER_00]: night we would spend just you know talking how do we figure how do we figure this out how do we figure that out and and ultimately it resulted in the in the big settlement that resolved to hundred thirty five thousand claims.
• 17:03
  [SPEAKER_01]: So in a case like this when you're leading it obviously you cannot try two hundred thirty five thousand cases.
• 17:09
  [SPEAKER_01]: how do you switch between your war hat and your state department hat in essentially like we got a litigate this but also we got a land it somehow and you know your goal you know is to okay let's we want to land a resolution defense like you know we'll get some motion to knock out the whole thing how do you balance those things
• 17:32
  [SPEAKER_00]: Well, it's not easy.
• 17:35
  [SPEAKER_00]: When you get in there in trial and I try it a lot of these cases and it's tough.
• 17:41
  [SPEAKER_00]: It's hand-to-hand combat and you're not always friendly with the other side and you certainly don't socialize with them really during trial.
• 17:51
  [SPEAKER_00]: But outside of trial, for the most part, we try to be very collegial
• 17:59
  [SPEAKER_00]: I mean, they're humans too.
• 18:01
  [SPEAKER_00]: You know, we all have, they have a job to do.
• 18:04
  [SPEAKER_00]: We have a job to do.
• 18:05
  [SPEAKER_00]: So if you recognize that, what I, you know, there's the true believers on their side that just say, you know, every single case is frivolous and we're the, we're the devil for even how dare we sue this great mighty company that's doing nothing, but helping people
• 18:25
  [SPEAKER_00]: you know we have two believers on our side that think you know every single case has to be paid millions of dollars even the ones that probably aren't valid so as long as you get a recognition of look that's fine common ground here and you know I was able to do both I was able to try cases and did and then I was able to be involved in the settlement but we also had
• 18:52
  [SPEAKER_00]: Chris Singer who was our settlement guy and he was able to kind of maintain that posture even while we were in trial.
• 19:00
  [SPEAKER_00]: So I think it's important and a lot of judges are recognizing it even on the defense side saying, look, you have your word apartment or point somebody that they don't have to settle, but at least be able to talk settlement without getting so in the weeds that they just think that resolution can never happen here.
• 19:22
  [SPEAKER_01]: So, you had sixteen trials.
• 19:25
  [SPEAKER_01]: Well, I'll talk about the first one, which you tried.
• 19:28
  [SPEAKER_01]: It's not every day, every MDL, where the lead council is also trying a case.
• 19:35
  [SPEAKER_01]: It's not uncommon, but it's not a regular occurrence.
• 19:38
  [SPEAKER_01]: Is there ever a doubt in your mind about that at where you're like, I'm trying the first one?
• 19:43
  [SPEAKER_00]: I was trying the first case.
• 19:45
  [SPEAKER_00]: I mean, what the benefit that I had was I was able to be
• 19:51
  [SPEAKER_00]: in the weeds with the documents.
• 19:53
  [SPEAKER_00]: And in order to effectively try a case, you really have to know it.
• 19:57
  [SPEAKER_00]: So I lived and breathed that case four years.
• 20:01
  [SPEAKER_00]: And it's Pensacola, it's where I live.
• 20:04
  [SPEAKER_00]: I know how people think here.
• 20:08
  [SPEAKER_00]: And I was certainly going to try that case.
• 20:11
  [SPEAKER_00]: Not alone.
• 20:12
  [SPEAKER_00]: I had, you know, it was actually three plaintiffs that were being tried together.
• 20:17
  [SPEAKER_00]: So again, we had a big team of just stellar
• 20:21
  [SPEAKER_00]: trial lawyers that all came together and everybody had a role in that trial.
• 20:28
  [SPEAKER_00]: Even the ones that didn't, you know, necessarily speak.
• 20:31
  [SPEAKER_00]: There were people working night and day because I can assure you, Kirkland and Alice, and Decker had teams and teams of people both in Pensacola and otherwise.
• 20:42
  [SPEAKER_00]: So it was kind of the first
• 20:48
  [SPEAKER_00]: You know, hitting the beach type thing.
• 20:50
  [SPEAKER_00]: It was hard.
• 20:51
  [SPEAKER_00]: It was hard work, but I knew I was equipped to do it.
• 20:55
  [SPEAKER_00]: And I was happy to do it.
• 20:58
  [SPEAKER_01]: Let's fast forward a bit past sixteen trials for a moment.
• 21:02
  [SPEAKER_01]: And, you know, three M's, you know, sinks its subsidiary into bankruptcy.
• 21:07
  [SPEAKER_01]: What's your reaction in that moment?
• 21:12
  [SPEAKER_00]: Well, first of all, I had never really
• 21:18
  [SPEAKER_00]: been in the weeds in a bankruptcy.
• 21:20
  [SPEAKER_00]: So I was just stunned.
• 21:25
  [SPEAKER_00]: We had no idea that that was coming.
• 21:27
  [SPEAKER_00]: And later we learned in the bankruptcy, it had been pre-planned for months and months.
• 21:32
  [SPEAKER_00]: They were doing everything they could.
• 21:35
  [SPEAKER_00]: And we had just done a mediation court-ordered mediation.
• 21:39
  [SPEAKER_00]: And certainly it was a stunning revelation.
• 21:45
  [SPEAKER_00]: And we knew we had to beat back
• 21:48
  [SPEAKER_00]: that bankruptcy, and again, we had the best bankruptcy lawyers in the country being able to help us do it.
• 21:55
  [SPEAKER_00]: And we all, once again, the litigation firms have to come together to get the facts marching for the bankruptcy folks to show the judge in that case Judge Graham that this bankruptcy needed to be dismissed.
• 22:10
  [SPEAKER_00]: And it didn't happen overnight.
• 22:12
  [SPEAKER_00]: Nothing does in bankruptcy, but ultimately we got
• 22:16
  [SPEAKER_00]: got him to agree and he came to the right conclusion and the case resolved in just months after.
• 22:23
  [SPEAKER_00]: So it was probably the single biggest thing that needed to happen before we got resolution for our clients.
• 22:31
  [SPEAKER_01]: I doubt you all remember this, but it was the first day hearing or maybe the hearings right after that.
• 22:35
  [SPEAKER_01]: And so I was there in Indianapolis and I walk into the courtroom and you're standing by yourself in the back just looking at like the days
• 22:45
  [SPEAKER_01]: looking at the little bristles wondering why the LMI and I go up to and I say hello and you just and you look at me go have you ever been in bankruptcy court and I go no and you just said me either and it was there was a sobering moment but that's why you don't you have a great team of folks that all they do is live in bankruptcy court and you know I I guess I question out of that is as you approach any case now
• 23:13
  [SPEAKER_01]: I'm looking at now we're opposed to red river, but I mean, how do you view bankruptcy and mass towards Joe and how they're intersecting and does it stoke fear or promise or, you know, what's your view on it?
• 23:31
  [SPEAKER_00]: I certainly learned a lot.
• 23:32
  [SPEAKER_00]: It gone back to my ADD having been in bankruptcy now.
• 23:37
  [SPEAKER_00]: I've learned an awful lot and look
• 23:40
  [SPEAKER_00]: Where there's an insolvent defendant, and there's a limited part of funds, what else we got.
• 23:45
  [SPEAKER_00]: It's sort of the only thing we have, but where there's a solvent defendant, and bankruptcy is imposed on our clients.
• 23:55
  [SPEAKER_00]: We're gonna fight it to the nail, and that's because bankruptcy's not designed for that.
• 24:01
  [SPEAKER_00]: This is not a cram down, this is a negotiation.
• 24:04
  [SPEAKER_00]: And when they came in on that first day hearing that we all recall so well, first of all,
• 24:10
  [SPEAKER_00]: viciously attacked our our court for for no reason whatsoever.
• 24:16
  [SPEAKER_00]: And just it's hard to fathom how anybody could stand up and do what they did.
• 24:24
  [SPEAKER_00]: But the other thing that they did is insulted every one of our clients and said basically for the hundreds of thousands of clients you can settle for basically what would amount to like four thousand dollars each and
• 24:38
  [SPEAKER_00]: you have no right to opt out, you have no right to do anything, take it or leave it.
• 24:43
  [SPEAKER_00]: And so once we heard all of that, we knew we had to win and there was no way that they were going to be able to impose a bankruptcy solution on us without us taking every appeal right and doing everything we could to try to get ourselves out of that because it's not designed
• 25:06
  [SPEAKER_00]: for this purpose.
• 25:07
  [SPEAKER_00]: And I think ultimately Judge Graham agreed with us on that.
• 25:12
  [SPEAKER_01]: You know, ultimately for those who, I guess we're living under Iraq over a six billion dollar settlement to resolve that case.
• 25:19
  [SPEAKER_01]: And for as heated as that was, I want to pivot to talking about your work to bring more comedy to the bar generally.
• 25:29
  [SPEAKER_01]: And for those unaware, Brian and his firm are one of the leaders of trailers, if past torts.
• 25:35
  [SPEAKER_01]: which meets, but two or three times a year with plaintiff defense and the judiciary.
• 25:42
  [SPEAKER_01]: And it's, you know, for those in the plaintiff mass tour world who haven't been to one of these conferences, it's really tremendous.
• 25:51
  [SPEAKER_01]: And just as I think it was the last one.
• 25:53
  [SPEAKER_01]: You had Judge Chopria and Judge Breyer.
• 25:56
  [SPEAKER_01]: And it was like almost like it was so informative, but also like a stand-up comedy routine between them.
• 26:03
  [SPEAKER_01]: And it opened the session.
• 26:04
  [SPEAKER_01]: It was like one of the best panels I've ever seen.
• 26:06
  [SPEAKER_01]: But I wanted to what inspired you to start that.
• 26:10
  [SPEAKER_00]: Well, it really, car kidding back to the bankruptcy.
• 26:15
  [SPEAKER_00]: Judges are getting attacked more and more.
• 26:18
  [SPEAKER_00]: We've seen the deterioration of any sort of collegiality in not all the time, but in a lot of our courts, certain bars, you don't always have to be at each other's throat.
• 26:32
  [SPEAKER_00]: And in fact, it's counterproductive to everybody's clients.
• 26:36
  [SPEAKER_00]: If I hate you and you hate me, and we're never going to be able to get along.
• 26:41
  [SPEAKER_00]: Sometimes a resolution is best for the clients without a trial.
• 26:45
  [SPEAKER_00]: Certainly, a trial carries risk.
• 26:48
  [SPEAKER_00]: What we wanted to create, and I think we might even be renaming it trial lawyers of complex litigation, because it does include class cases and other types of complex litigation that aren't classically master at this point.
• 27:04
  [SPEAKER_00]: But an informal way for us to build in not only educational programs that can talk about this, but also time
• 27:15
  [SPEAKER_00]: to sit down with folks in the judiciary, also on the other side of the V, if you're defense and plaintiff, but actually understand how we can make all of our practices better.
• 27:29
  [SPEAKER_00]: And there are things that, and we have those discussions about our vetting, for example, it's not in our interest to have a bunch of claims that aren't meritorious in a math store.
• 27:41
  [SPEAKER_00]: It slows the meritorious ones down.
• 27:45
  [SPEAKER_00]: How do you get the information to get to those meritorious claims?
• 27:50
  [SPEAKER_00]: And it's not always, all right, it's all on the plane if I just get your medical records and file.
• 27:57
  [SPEAKER_00]: Well, sometimes the medical records take a long time and you have statues and limitations.
• 28:01
  [SPEAKER_00]: Sometimes in the case of three am, they're in the exclusive possession of the DOD and it took us many trips to the Pentagon and the help of
• 28:12
  [SPEAKER_00]: our court and a retired federal judge should earn them to get us what we needed to to shift the week from the chaff because don't always know so what can we do collectively to help the courts to help our practice on both sides and and build that sort of bonds across because I like I have a lot of friends on the defense side and and I work with them and sometimes
• 28:40
  [SPEAKER_00]: We need to litigate certain issues and win or lose before it's time.
• 28:44
  [SPEAKER_00]: But oftentimes, you don't necessarily learn enough in trial to prevent you from resolving the case beforehand.
• 28:53
  [SPEAKER_00]: And then this one that we're having, we're having another one November, ten, three, thirteen in Cabo.
• 28:59
  [SPEAKER_00]: We've got almost three dozen judges, I think.
• 29:02
  [SPEAKER_00]: But part of our mission there is how can we enhance
• 29:08
  [SPEAKER_00]: and protect the judiciary.
• 29:09
  [SPEAKER_00]: What can we do to speak up for them?
• 29:12
  [SPEAKER_00]: Because they're limited on what they can do.
• 29:16
  [SPEAKER_00]: They can speak through their orders and they do.
• 29:19
  [SPEAKER_00]: But when they're attacked and now you've got pizzas being delivered and all sorts of craziness and unfortunately, even to the point of attacks and murder, it's a real problem.
• 29:31
  [SPEAKER_00]: So we really want to come together with them.
• 29:34
  [SPEAKER_00]: We've got some of the best and brightest minds, but we also do it.
• 29:38
  [SPEAKER_00]: in a way that works.
• 29:39
  [SPEAKER_00]: I mean, Judge Chabri and Judge Breyer, they don't agree on a lot of legal issues necessarily, but they are friends.
• 29:48
  [SPEAKER_00]: And that's ultimately, we need to make more friends in this practice.
• 29:53
  [SPEAKER_01]: When you first started this, was there some skepticism from the defense lawyers that you invited being like, is this a trap?
• 29:59
  [SPEAKER_01]: Are you serious or are they open to it?
• 30:03
  [SPEAKER_01]: And how has it evolved now that you're a few years into it?
• 30:08
  [SPEAKER_00]: No, I mean, not all of them come and that's fine.
• 30:13
  [SPEAKER_00]: We do want to get more defense lawyers there.
• 30:16
  [SPEAKER_00]: And they have different issues, budgetary issues.
• 30:23
  [SPEAKER_00]: We're now getting general counsel to come as well because they have a unique perspective.
• 30:29
  [SPEAKER_00]: So having as many different views involved, I think is
• 30:37
  [SPEAKER_00]: giving them comfort, but the ones I invited I knew personally and were by reputation and I don't know that they had that, but certainly we do everything we can to make it a true, this isn't like let's have a token defense lawyer on, we really want to understand how they take and now we can work better together and warm-portedly protect our judiciary and enhance it for the future.
• 31:06
  [SPEAKER_01]: What gives you confidence that, or makes you hopeful about the protecting the judiciary and the future of complex litigation in the US, particularly in light of all the attacks and criticism, what keeps you optimistic and hopeful?
• 31:23
  [SPEAKER_00]: Well, you know, the rule of law is still here.
• 31:28
  [SPEAKER_00]: And I think it will be here if you look at the polling people understand
• 31:34
  [SPEAKER_00]: And businesses understand that they need to know that if there is a court order, you have an avenue for appeal, but people need to respect the court order.
• 31:46
  [SPEAKER_00]: And I think it's good for business.
• 31:48
  [SPEAKER_00]: It's good for certainty.
• 31:49
  [SPEAKER_00]: It's, I mean, everything from patent litigation to class action certainty.
• 31:53
  [SPEAKER_00]: Everything needs to be built on that fundamental rule of law.
• 32:00
  [SPEAKER_00]: And yes, we've seen attacks.
• 32:01
  [SPEAKER_00]: We've seen vicious attacks.
• 32:04
  [SPEAKER_00]: But the pendulum always swings, and in this case, the more we can do to keep the pendulum from swinging further toward the acrimony and just name calling of judges, judges, or human, they don't always get it right, but they try to get it right.
• 32:22
  [SPEAKER_00]: And if they don't get it right, there's an avenue for others in the higher courts to deal with it.
• 32:29
  [SPEAKER_00]: And the more we can educate people about that,
• 32:33
  [SPEAKER_00]: the better off our entire society is.
• 32:36
  [SPEAKER_00]: So that's part of what we're doing, what our mission is.
• 32:39
  [SPEAKER_01]: Brian Alstockwood, Alstockwood, increasing over-holds, thanks so much for joining the podcast.
• 32:43
  [SPEAKER_01]: Very much appreciate your time.
• 32:45
  [SPEAKER_00]: Thanks for having me.
• 32:47
  [SPEAKER_01]: Thanks for listening to this episode of Raising the Bar with Rebuttal PR.
• 32:51
  [SPEAKER_01]: Don't forget to subscribe and follow the join us next time.
• 32:54
  [SPEAKER_01]: See you then.