Latest / Coopers' Code / Why the Details Win: John Feder on Legal Strategy, Storytelling, and Truth

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Why the Details Win: John Feder on Legal Strategy, Storytelling, and Truth · Coopers' Code

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  One of the great things about our profession is we plaintiff
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  lawyers know a high tide floats all boats so we can call our
• 0:10
  colleagues that do the same exact work we do.
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  I don't think of them as competitors, I think of them as
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  colleagues. 2 days ago, you know, I called Bob Barnes and
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  Bill Veen about a construction accident case where I thought
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  their insights might be valuable and they called me right back.
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  Just like I think it's important to band together to be wise to
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  protect our clients rights. Howdy, and welcome to the show.
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  Cooper's Code focuses on legal issues and notable
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  practitioners, distilling wisdom so we all achieve the best
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  results for our clients. I'm Miles Cooper and I'm
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  thrilled to show the Part 2 of this conversation with John
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  Feeder. One of my regrets is that I I
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  did not start doing this earlier and, and, and did not have an
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  opportunity to sit down with Ron to do a similar thing like this.
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  And I hope you don't mind being proxy in certain respects, but I
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  was, I was adding up in my head that you, you were with him, you
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  know, 40 ish years. Yes.
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  And, and one of the things I was hoping you might be able to, to
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  help us with are are any, any points of wisdom, any, any
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  things that you feel you use now that you picked up from your,
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  your, your, yours practicing with Ron.
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  Yeah, I, I learned so much working with Ron.
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  He was a wonderful partner, a complete character.
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  I, I learned not to go into the office to say goodbye 'cause he
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  would say John 1. I, I just have a quick question
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  for you. I just have a quick question.
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  I'm only laughing because John Halverson, who is is, is a a
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  dear friend. Theo and I had the same thing.
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  You didn't want to be the last person at the office with John.
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  He would ask a 40 minute wasn't one question.
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  You'd have to hear the story for 40 minutes.
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  I just called Sue to say I'm leaving, I'm coming home.
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  And then I've got a question from Ron.
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  And in those days I didn't, you know, we didn't have cell phones
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  in our pocket. So Ron taught me a ton.
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  He encouraged me to join CAOC and SFTLA from day one.
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  And he would bring me to conventions and lectures and
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  seminars. So I would learn from the best
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  and encouraged me to join AAJ, which was an ATLA.
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  And so I went to some of those conferences.
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  But if I had an issue on a case, I would come into his office and
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  I'd say, I'm wondering about blah, blah, blah.
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  And he would say, well, tell me about the whole case.
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  What? And because he taught me that
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  attention to detail is critically important.
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  And, you know, the little things matter.
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  And he was creative, tenacious. He would spend all day and all
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  night thinking about his cases. And that was to the benefit of
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  all of his clients. But it was not to the benefit of
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  a young lawyer who invited him to sit in his Giants seats and
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  invited him to a Giant game of Candlestick against the Dodgers.
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  And it's a really tense part of the game.
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  It's like 6th inning, The game's tied.
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  And Ron, you know, it's like a three and two count.
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  The bases are loaded. And Ron says now, John, how's
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  that Smith case coming? What's going on?
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  Any recent depositions? How's that Jones case coming
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  along? Did you find a good expert?
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  So I learned very quickly not to invite him to sporting events
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  because his brain was always focusing on on the cases.
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  But as a young lawyer, I mean, a brand new associate with Ron.
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  So I'd been practicing 3 years. He let me try with him a case
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  that I'll never forget. It's called Lee versus Wong.
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  If we tried it in December of 1981, a couple weeks before
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  Christmas, and our clients were the parents of an 8 year old boy
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  who had run across an intersection during broad
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  daylight that was probably red. It was maybe it was yellow for a
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  few seconds, but he ran across a wide intersection at Columbus
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  and Filbert and he was struck and killed by Mr. Wong, who was
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  driving a laundry truck. And so I I told Ron about, you
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  know, here are the problems I'm having in the case.
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  The police report blamed the child.
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  And he said, well, you know, I think you, you need a bunch of
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  good experts. So I hired a few creative
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  experts. We went to a playground near the
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  school where the little boy went.
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  And we time little 8 year old boys running 35 feet with
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  backpacks to figure how fast are they going?
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  They go unbelievably fast. They go like 12 feet a second.
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  Well, they're. Yeah.
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  So we knew we only had about 3 seconds between the time he's in
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  the street and the time he gets hit.
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  And then I hired a friend of mine who was an ophthalmologist
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  to talk about peripheral vision because the kid was not in front
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  of the truck until the very last second.
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  By then it was too late. But I learned about rods and
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  cones. And, and during the trial, I
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  stood in one corner of the courtroom and and Mr. Wong was
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  facing forward like you and I are facing.
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  And, and Rod said, now, Mr. Wong, can you see Mr. Feeder
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  over here? He said, yes, yes, I can see
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  him. Oh, that's a.
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  Great. And then he moved me over to the
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  other side of the courtroom and said, can you still see Mr.
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  Feeder? And he said, yes.
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  And it was tried. We tried this against Dean
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  Robinson, who's a great attorney and a good man at Lowball and
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  Lynch at the time. And like, you know, he thought
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  this was 100% the fault of the kid and offered, I think 17,000
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  or something like that. And so we had a whole team of
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  experts that helped us prove that in the three seconds or so
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  that the boy was in the crosswalk, he was visible to the
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  he should have been visible to an attentive driver for the
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  driver to have slowed down. And if he'd slowed down a little
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  bit, he would have missed them. And it was just a, it was a
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  very, it was a mind blowing, blowing case for me because we
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  in the closing argument, Ron had done some research and this is
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  like typical Ruda, very creative.
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  He looked up a whole bunch of Chinese proverbs.
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  You know, to tell the jury, you know, some kids are like canoes,
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  they have to be paddled. Some children are like
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  wheelbarrows, They have to be pushed.
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  But little Jimmy Lee was a gold watch.
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  He was like a gold watch, shiny faced, full of good works, pure
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  gold. And the jury loved him.
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  This was tried in front of Anthony Klein, as I said, in
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  December of 1981. And, and he ordered a remitted
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  her because he thought the verdict was so high.
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  Oh, wow. Yeah.
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  And the verdict I think was only like 345,000.
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  But in 1981, that was a lot of money for loss of love because
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  that it, you know, there was no pecuniary loss.
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  You know, Ron taught me a ton. You know, we had a bunch of
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  machinery cases. We went back.
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  We represented the guitarist for the King and Queen of Tonga.
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  Mr. Kaifu lost three fingers on his left hand and three fingers
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  on his right hand on a punch press.
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  So we went to Grand Rapids, MI to take on the manufacturer
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  Bliss. We went to the distributor's
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  place of business to focus on the the lack of proper guarding.
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  So we went the extra mile. We met a ton of his relatives
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  from Tonga and we were able to get a great result because of
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  really because of Ron's persistence.
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  And, you know, we hired Paul Youngdahl.
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  I don't know if you remember him or had the pleasure of working
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  with him. That name is very familiar.
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  He was really kind of the Harry Philo school of looking at
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  design, you know, can you design against it?
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  Can you protect against it? Can you, if you can't, can you
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  warn against it? You know, so basically Ron put
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  his heart and soul into every case.
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  And so I think he taught me a tremendous amount and then he he
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  let me be the lead in the Moat case that he had worked up for,
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  you know, three or four years. I was hoping we'd get to Moat.
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  Can you unpack what that case was?
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  Yes, it was a really challenging case.
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  It was. It was a pedestrian, 19 year old
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  woman from England, college student, hit by BMW, being
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  driven by a realtor. As the BMW was going up a hill,
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  she's crossing the street and she it was a 60 foot wide
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  crosswalk and the guy only had 100,000 of coverage.
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  So we filed our claim against the city of Los Angeles who
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  controlled the intersection and we filed a claim against the
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  state of California who owned the intersection.
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  It was unprotected, no stop signs, no stop lights.
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  And Ron worked on it for years and I thought it was a very
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  tough case until one night we were at a wedding reception in
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  Hollywood. The incident location was in
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  Hollywood. So I had a glass of champagne
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  and then took a taxi in my tuxedo to the accident scene
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  because I'd never been there before.
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  This is about 5 months before the trial.
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  And I realized that when you looked both ways up and down the
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  hill and waited till you saw no headlights coming.
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  It was a nighttime accident. The intersection was so wide and
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  and Hwy. 1 O1 at the Highland Ave. exit dumped off right above
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  the intersection. So you could look and see nobody
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  coming but not be able to cross safely without having to run
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  because cars couldn't see you and they were coming at very
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  high speed. So twice I almost got hit.
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  And so I'm running in my tuxedo to make it to the other side.
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  So I said to myself, this is a really good case.
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  How did you help either through experts, testimony,
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  demonstratives. How did you help a jury
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  understand? Because I I presume you do not
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  have a site visit for that case. We would have loved to have had
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  a site visit. We made a motion, but that, you
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  know, the judge, John Shook said no way.
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  He's never done a site visit with a jury.
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  So without that site visit, how did you help the jurors be there
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  and have that same experience that you had at that crosswalk?
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  A couple things that happened very fortuitously.
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  I, I called one of the witnesses who had given the depot about a
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  month before the trial, maybe two months before the trial, and
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  I said her name was Anahit. I said, you know, this trial's
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  coming up the end of January. Are you able to testify?
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  Yes. And, and Ron had taken her
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  deposition. So I was talking to her and then
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  she told me she had made a handmade stop sign that was
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  battery powered so it would light up, it flash.
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  It was the, you know, the normal, what is it, Octagon.
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  And that she'd made that just for when she had to cross that
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  intersection on her way to the Hollywood Bowl.
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  And she said, you know, I'll let you have it if you would pay me
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  $20.00 because that's how much it cost me to build it.
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  So that was a key part of the case.
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  We never knew that. She'd never mentioned it.
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  So she comes into court and turn on the light because he said it
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  was impossible to cross this intersection because it was so
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  wide and there was no stop signs for anybody.
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  So that was key. I have to say, what did the city
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  attorneys in the the A G's office look like when you
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  brought that in? They were stunned.
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  They were stunned. The state had just settled out
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  right at the end of Wadir. We had, we had spent $1,000,000
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  preparing the case. We hired every highway design
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  expert we could find. And we also got lucky because I
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  took the deposition and I got to take all the expert depos.
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  I was really, I kind of fell in love with the case and, and Ron
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  was thinking, Gee, it's so expensive.
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  I took the the human factors expert who you may know, Robert
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  Post Yes. And I've worked with him on a
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  couple of cases, but he was against us on this case.
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  But I had been out there, as I was telling you, and he admitted
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  that he was out there one night preparing to take photographs
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  and videos. And so I, I said, well, Doctor
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  Post, when you were preparing to take these videos, did you have
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  any difficulty crossing the street because of it was a trap.
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  He couldn't see cars coming until they were on you.
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  And he said yes, yes, I did. So he had been hired by the
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  state. The state settled the case.
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  Fortunately, the city of LA filed a joint disclosure of
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  expert witnesses. So they didn't call him, of
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  course. But we played his video a bunch
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  of times during the trial. That was maybe the first time
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  that I had routinely taken adverse expert videos because I
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  every depo I've taken for 20 something years is now on video,
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  even if I think the witness is not that important because all
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  you need is a sound bite. Why is it that you always take
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  it on video even when you think it is unimportant?
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  And perhaps you could save money on that particular unimportant
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  witness. You're looking for impact.
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  You're looking for something that a jury will not forget and
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  showing the video. People are used to watching them
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  things on television now showing the video in the courtroom.
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  Jury's fascinated by that. And you can of course edit it so
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  you're only playing two minutes out of a four hour, 3 hour
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  deposition. But when I told the jury this is
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  the human factors expert hired by the defendant, the city of
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  LA, and they were going nuts that I was showing it, they had
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  forgotten they had jointly disclosed.
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  And so that worked out great. And but 164,000,000 cars had
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  driven through that intersection in the 10 years before our
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  accident and there were zero similar accidents.
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  So the defense attorney said there's no way this is a
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  dangerous condition. And we said no, you should have
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  prevented fixed or guard against the risk because if you looked
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  at it, it wasn't very wide intersection with very limited
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  visibility for a pedestrian. I'm very proud that they took
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  that crosswalk out. I went to see Joni Mitchell at
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  the Hollywood Bowl a couple months ago, and there's no
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  crosswalk there. So I think, you know, one of the
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  great things about doing the work we do is when the
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  defendants make changes, whether it's to their product or their
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  protocols. I had a rape case against
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  Highland Hospital when I was a young lawyer working with Ron.
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  My client got raped by she had attempted suicide.
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  She was a dental hygienist whose boyfriend had broken up with
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  her. They were out of bed, so they
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  put her in the wing for the criminally.
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  I don't know if it was a 51 fifties or something like that,
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  and the doors would not open from the inside.
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  One of those inmates climbed into her room.
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  She couldn't get out because the doors didn't lock from the
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  inside and she was viciously raped and her life was
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  completely changed. And, and the county had, you
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  know, their motions, their immunities, but we thought it
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  was outrageous. And sure enough, we, you know,
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  we won that case. But I was very proud that they
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  changed their protocols after our case.
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  And we've had that happen in a number of different products,
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  too. I mean, we read, you read
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  Grimshaw versus Ford Motor Company and and this, you know,
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  maybe is part of, you know, how we get passionate and and
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  radicalized by corporate behavior.
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  But as you know, in that case, Mark Robinson tried it I think
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  in 1978 or came out as an appellate decision in 79.
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  There was an engineer from Ford, a bean counter, who testified
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  that it would cost a few dollars per Ford Pinto to pay the deaths
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  and destruction caused by the defective gas tank.
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  And it would cost more money. It would cost like 5 or $6 to
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  fix it, to eliminate the problem.
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  So they chose to continue to make this car with a very
• 16:35
  dangerous gas tank. They could easily start a fire
• 16:38
  that caused injury or death. So I mean, Can you imagine a
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  corporation saying, OK, it's a little bit more expensive, so
• 16:45
  let's leave it out there because they're still buying it.
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  I unfortunately can imagine a company doing that because you
• 16:56
  and I have seen a lot of that. Yes.
• 16:59
  If you're enjoying what we're doing here with Cooper's Code,
• 17:01
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  friend. Additionally, we want to know
• 17:08
  who you want to hear on the show.
• 17:10
  Have an interview suggestion? E-mail us at podcast at Cooper's
• 17:12
  dot Law. I had one case that I was proud
• 17:16
  of. It was patient controlled
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  analgesia device about a little bit bigger than a cell phone.
• 17:24
  And my client young woman had had back surgery and they said
• 17:27
  do you want some morphine? And she said I don't think so.
• 17:30
  But they hooked up the PCA machine in the hospital and the
• 17:36
  design was dangerous because you could easily misload the
• 17:40
  medication cassette and without pressing the button to get the
• 17:45
  the morphine, it dropped the whole bolus of morphine into her
• 17:49
  system. And this young woman all of a
• 17:51
  sudden was turning blue and and was unconscious.
• 17:55
  Luckily her husband was in the room, quickly called out.
• 17:59
  A neurologist came in and and administered Narcan to save her
• 18:04
  life. So she had no residuals.
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  But as I was back in Minnesota preparing for that deposition, I
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  started looking in the phone book, calling the names of
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  former employees that had come up in the depots I had taken.
• 18:18
  And lo and behold, this is like the night before this key depot.
• 18:21
  I found a guy that said, yes, I work in marketing.
• 18:25
  We knew we had a problem. We blamed it on the nurses or
• 18:29
  the hospital. We had a fix, but the machine
• 18:33
  was selling like hotcakes. Sales were great and when we
• 18:38
  submitted the reports to the government we always blamed it
• 18:40
  on the nurse or the doctor. And it was going to cost like a
• 18:46
  dollar and a half more to put the warning on it or to use the
• 18:49
  anti siphon device. It would prevent the backflow.
• 18:54
  And you know they ended up paying through the nose when
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  that deposition got got taken. I wasn't back there for that
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  guy's depot, but I took it later.
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  And so all of a sudden you've got a punitive damage exposure
• 19:06
  that was huge, even though the injury wasn't real severe.
• 19:10
  It's like hard to believe when they knew they had a problem,
• 19:13
  they had a warning. They just decided not to put it
• 19:16
  on the device. Like you've seen so many times
• 19:20
  in in in your practice, corporations make so many
• 19:25
  decisions that are not in the best interest of their
• 19:27
  consumers. So it feels good to fight those
• 19:31
  battles against the people that have put profits over safety.
• 19:37
  I want to pivot a little bit because we, we've talked a lot
• 19:39
  about your, your, your practice. I also want to get in a little
• 19:44
  bit beyond the, the casework to the bigger picture.
• 19:48
  You know, it's it your, your passion for this is evident not
• 19:51
  only from the work on your cases, but also from your role
• 19:56
  in leadership for organizations. And I think of SFTLA and CAOC.
• 20:02
  And I'd love for you to tell our listeners a little bit about why
• 20:07
  you got so involved and why that was so important to you.
• 20:12
  I loved SFTLA and CAOC as soon as I joined it because they
• 20:19
  helped me become a better lawyer and protect our clients.
• 20:22
  And one of the great things about our profession is we
• 20:26
  plaintiff lawyers know a high tide floats all boats, so we can
• 20:33
  call our colleagues that do the same exact work we do.
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  I don't think of them as competitors, I think of them as
• 20:39
  colleagues. 2 days ago, you know, I called Bob Barnes and
• 20:44
  Bill Veen about a construction accident case where I thought
• 20:47
  their insights might be valuable and they called me right back.
• 20:51
  Just like I mean, I, I think it's important to band together
• 20:57
  to be wise to protect our clients rights and organizations
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  like SFTLA&CAOCI know you were on the board for years.
• 21:05
  They do really important work and I'm proud of some of the
• 21:08
  legislation that has been enacted at Cao CS initiative,
• 21:15
  changes to the MSJ laws, statute of limitation laws, increasing
• 21:20
  it from one year to two years. It used to be if you were from a
• 21:25
  foreign country and and didn't have the papers here to work in
• 21:28
  America, if you were from Mexico, for example, your wage
• 21:32
  loss claim by law would be interpreted based on what you
• 21:35
  would have made in that foreign country, which might have been
• 21:38
  just a fraction of what they were earning working here in in
• 21:44
  in California. So, and I think the seven hour
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  deposition rule that I got a chance to testify when I was
• 21:50
  CAOC president because it had been used by defense attorneys
• 21:54
  to kind of abuse dying victims, whether it was asbestos or
• 21:59
  elderly on elder abuse cases. So that they could say, well,
• 22:02
  we're not done with the DEPO. We've spent 678 hours, but we
• 22:05
  need another day. We need another day, you know,
• 22:08
  trying to send a message to the lawyer and the plaintiff that
• 22:11
  litigation is hard and it's war and we'll make you pay.
• 22:14
  And I think the, the seven hour deposition rule has worked out
• 22:17
  great for plaintiffs because I think it's, it was the right
• 22:21
  thing to do as a, you know, and I think there can be a lot of
• 22:24
  abuse in discovery. But I joined CAOC because I
• 22:31
  wanted to learn how to be a great lawyer.
• 22:33
  And then I became president and went up through the chairs
• 22:36
  because I thought it was time for me to pay back.
• 22:39
  And I looked at all the lawyers who had been president before
• 22:41
  and, and I love listening to them talk about trial work.
• 22:45
  And it's like a full time job. You know, we work together when
• 22:50
  I was CAOC president. And it's very difficult to do
• 22:53
  that job and handle your cases because there's just so much
• 22:56
  going on if you're going to do the job right.
• 22:58
  And you shouldn't sign up for a position unless you're going to
• 23:01
  devote yourself to it. But you also had a particularly
• 23:06
  challenging year in terms of propositions.
• 23:09
  Boy, yes, Prop 46 was the initiative that we put on the
• 23:15
  ballot to increase the micro cap because it had been stuck at
• 23:19
  250,000 for pain and suffering since, you know, 1974 or
• 23:25
  thereabouts. And it was so, it was so
• 23:28
  outrageous. And of course the most
• 23:30
  seriously, the most seriously injured people were the worst
• 23:34
  victims of a 250,000 cap. So it was manifestly unfair.
• 23:41
  And one of my regrets is that I listen to our focus groups and
• 23:47
  we focused in our ads about the importance of drug testing for
• 23:50
  medical professionals and alcohol testing.
• 23:54
  We should have focused on this law is benefiting insurance
• 23:59
  carriers that defend medical malpractice cases and it's not
• 24:03
  in the consumers best interest. The medical malpractice
• 24:08
  carriers, including Kaiser spent more than $70 million to oppose
• 24:12
  our initiative. And the night that that
• 24:14
  initiative, as I'm looking at the news, watching the tunnels,
• 24:18
  it was devastating because for a year and a half, two years, I've
• 24:21
  been dialing for dollars and speaking all over the state,
• 24:25
  trying to get lawyers to contribute to our funds, to get
• 24:32
  our ads on the air. And we raised $11 million, which
• 24:36
  sounds like a lot of money, but it doesn't go far at all when
• 24:39
  you've got a $70 million budget against you.
• 24:41
  And as you recall, they they made it seem like it was lawyers
• 24:45
  with bags of money. They were promoting this.
• 24:48
  So it was really unfair. So I regret that we focused on
• 24:52
  drug testing of doctors because very few people are ever
• 24:55
  thinking, hey, my doctor's been doing a lot of drugs.
• 24:58
  I don't like this. I mean, nobody that I talked to
• 25:01
  thought, yeah, that's a real problem, drug abuse by doctors.
• 25:05
  I think we should have focused on how the insurance companies
• 25:08
  were treating patients unfairly. It's interesting in terms of
• 25:14
  your your feelings about the handling of that proposition
• 25:18
  fight. I've always looked at that as
• 25:21
  some of the the groundwork, the foundational work that sent a
• 25:26
  message to the other side, those who are pushing for Micra, that
• 25:31
  we will not back down. Thank you for saying that.
• 25:34
  And when we worked out a new deal recently to change the
• 25:38
  medical malpractice caps and to increase it, I got calls from
• 25:43
  our political people at CAOC, including Leanne Tratton, that
• 25:47
  thanked me for the work that I had put in on Prop 46.
• 25:51
  I was so relieved to see the law had been changed through
• 25:54
  negotiations, but it was very hard to see how easily the
• 25:59
  public was fooled. And and it's funny because like
• 26:03
  you, you know, you would you talk to the families that are
• 26:07
  calling about a potential medical malpractice case.
• 26:09
  And they didn't really remember the initiative, didn't remember
• 26:12
  how they voted. But until you're the victim, you
• 26:15
  may not be thinking you're going to need access to the courts.
• 26:19
  Yeah. So I was so glad that that the
• 26:22
  group was able to change that. And part of the reason I bring
• 26:25
  forward that the challenge and the loss, but the ultimate win
• 26:30
  is whether it's in our cases, whether it's in our life,
• 26:35
  whether it's in our political system.
• 26:37
  It's wise to remember that there can be losses of battles before
• 26:43
  one wins the. War, yes, as Churchill spoke
• 26:46
  often, yeah. It's not easy organizing a group
• 26:51
  of lawyers, a group of 3 or 4 or 5000 lawyers who have different
• 26:54
  practices. I was disappointed in some of
• 26:57
  the people that tout their successes who kept stringing me
• 27:01
  along saying, I'll give, I'll give.
• 27:03
  I'm just waiting for the Jones case.
• 27:05
  I'm just waiting for the Baker case to come in.
• 27:08
  And then never stepped up. So, you know, you might forgive,
• 27:13
  but you don't forget those who didn't carry the weight.
• 27:20
  And we had real problems getting like the heavy TV advertisers to
• 27:23
  contribute because they were saying, oh, I don't do that much
• 27:26
  medical malpractice. And so they didn't get the big
• 27:29
  picture how important it was to protect consumers in all areas.
• 27:33
  Chaos President part time cat herding.
• 27:37
  Yes, yeah, yes, I know you remember what that was like.
• 27:40
  Yeah. The president the year before
• 27:44
  was Brian Kabatak and he was very involved in Prop 46.
• 27:51
  But I think both Brian and I now would say we probably didn't
• 27:56
  need to link it with drug testing for doctors because I
• 27:59
  just don't think that resonated with the public.
• 28:01
  Thank you for listening and please join us next week as we
• 28:04
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• 28:12
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