Chapter 6 · The Way Forward
The Mass Tort Trial Lawyer
If you want to win a case—or be part of a winning tort—you need a real experienced trial lawyer at the helm.— Rich Newsome
Rich Newsome was selected to helm this very important chapter because of his sterling reputation as a trial lawyer, in addition to his experiences handling a number of important and highly complex litigations. Many of my clients send their most complicated one-off cases to him and his firm to take to trial. He excels in the world of complex litigation, where both his trial skills and his cutting-edge tools have proven unusually effective in picking and winning over juries. Rich Newsome also happens to be a personal friend—and client of mine—who lives in Orlando, Florida.
Newsome began his legal career as a federal prosecutor, first in the Northern District of Florida and then in the Middle District of Florida. He was subsequently recruited by a local boutique product-liability defense firm, which represented large corporate manufacturers.
Along the way, he suffered a crisis of conscience when he was asked to take a deposition from a family who’d lost a child in an accident. It was a deeply emotional exchange—
complete with real emotion and tears from the child’s family and grandparents—which shook him to his core.
At the time, his wife was pregnant with their first child, but he knew he’d had enough. He called her on the way home and confessed, “I just can’t do this anymore. I can’t continue on like this.” He’d begun to feel like he was on the wrong side of the fight and that the grieving family was on the right side of history.
Shortly thereafter, he took a huge pay cut to join a small plaintiff-side firm with a good reputation and has never looked back, growing his practice at every turn. The jump eventually led him to take on a number of pivotal mass tort cases, including the Takeda air bag litigation. He is currently the senior partner of the Newsome Melton law firm, which represents people and families in complex civil litigation.
—JAcoB MALHerBe
In tHe 2019 FILM Ford v. Ferrari, legendary race car driver Carroll Shelby, played by Matt Damon, takes Henry Ford II on a joyride to sell him on the importance of choosing the right driver for an upcoming race. During the joyride, Shelby puts the car through its maneuvers on a track at speeds of over two hundred miles per hour, complete with hairpin turns and harrowing braking maneuvers. Throughout the ride, Henry Ford II, played by Tracy Letts, is horrified. He white-knuckles his seat with his face contorted in abject fear. As
Shelby finally slows the car to a stop, all Ford can say is, “I had no idea. I had no idea.”
It’s as good a scene as any to illustrate not only what lawyers experience in the heat of a mass tort case but also why it’s so important to have a skilled and experienced trial lawyer steering the case.
Not unlike drivers on the racing circuit, there are poor mass tort lawyers, dangerous lawyers, inexperienced ones, and great ones. If you want to win a case—or be part of a winning tort—you need a real experienced trial lawyer at the helm. You need someone who has studied the art of trial advocacy, knows how to pick juries, can cross-examine experts, and understands the skills required to oversee an entire trial. Unfortunately, far too often, lawyers with insufficient experience or training are allowed to get behind the wheel. Simply put, it’s up to you—one way or another—to change that.
Understanding Trial Lawyers The great Irving Younger, a former trial judge and law professor, once said, “You are not competent as a trial lawyer until you have tried at least twenty-five jury trials.”
Not to overdo my driving analogy, but trying a case is a lot like learning to drive a manual transmission car. There are so many skill sets that need to be mastered, many of which involve feelings and instinct. Do you know when to punch the gas, ease out the clutch, gauge the engine’s rpm. And then—boom—you find yourself staring at new obstacles. Traffic! Other drivers! Red lights! Street signs! It can be overwhelming to say the least.
Before getting behind the wheel, new drivers must first understand the rules and study the driver’s handbook. Over time and with practice, muscle memory develops. Shifting gears becomes second nature. Other drivers’ actions are anticipated and no longer engender fear. Anxieties lessen and every action begins to feel natural. It’s only after years of practice—and years of studying advanced methods— that it’s clear you’re qualified to enter the race.
A similar process is required if you want to become a good trial lawyer. First, there are the basic skills frequently taught in law school trial programs: giving a basic voir dire and opening statement, understanding the difference between a direct examination and crossexamination, and giving a closing argument. It’s about more than studying; it’s about practicing. Standing before a real judge and jury. Responding to curveballs from the other side. Conducting your voir dire. Cross-examining experienced expert witnesses. It takes years of practice before a lawyer can be truly competent.
But there’s much more to master, especially in high-profile civil cases and mass tort trials. In a mass tort, the stakes are higher. Every deposition, witness, or document has the potential to affect thousands of lives. The trial lawyers hired by mass tort defendants should be the best of the best because these cases are the metaphorical equivalent of twenty-four hours at Le Mans. They require long hours. They are expensive. And you’re likely to face some of the most skilled competitors in the business.
Which is why plaintiff-side trial lawyers in a mass tort case must not only have a basic understanding of trial advocacy but must have at least a few dozen jury verdicts under their belt. They have to be the kind of people who are willing to put in the time to study and absorb today’s state-of-the-art trial advocacy methods.
Here’s an abbreviated checklist of critical skills worth developing and honing:
• Know how to pick a jury using all the available tools and methods at your disposal.
• Use engaging storytelling techniques and modern technology.
• Embrace the art of storytelling to best represent the case in question and your client.
• Use focus groups, big data, language tools, demonstrative exhibit, and so much more.
As the great Florida trial lawyer Wayne Hogan once said about being a trial lawyer, “Everything worth knowing is known.” Most mass tort plaintiff lawyers know who the real trial lawyers are. They’re skilled practitioners who can try complex mass tort cases based on both their reputation and previous results.
There are a few simple questions worth asking when vetting candidates:
• Has the lawyer won a number of large verdicts as lead counsel?
• Have the cases involved complex issues and contested facts?
• And finally, were these verdicts recent?
Trial skills can rust. Methods have changed dramatically over the past several years. Sadly, many great lawyers who won massive verdicts in years past are simply out of practice or no longer up to speed regarding contemporary best practices.
The Acquisitions/Business Lawyer Self-described “business lawyers” or acquisitions lawyers tend to be men and women who excel at marketing, lead generation, intake, and case aggregation. Few of these lawyers have ever picked a jury, crossexamined an expert, or given a closing argument. However, business lawyers play a critical role in most mass tort litigations.
They generate the massive numbers of plaintiffs necessary to force the courts, through a special body within the US federal court system called the Judicial Panel on Multidistrict Litigation (JPML), to designate a case as a multidistrict litigation (MDL).
The number of clients generated by the business lawyers also makes it possible to fund the costs of litigation. Costs in an MDL are shared between many plaintiffs and are typically in the millions or tens of millions of dollars. These costs would be impossible to justify in a single-event case. The number of clients generated by business lawyers also ultimately drive settlements and corresponding changes in corporate behavior and public policy.
Business lawyers often have significant political power in most MDLs today. These lawyers wield political power either via direct participation in plaintiff steering committee (PSC) leadership roles or due to the relationships they’ve formed with firms whose partners are in leadership positions. And like Henry Ford II in Ford v. Ferrari, they don’t always pick the best drivers (i.e., experienced trial lawyers) for key roles in a litigation. Business lawyers are incentivized to place their own firm’s lawyers in key roles. While these lawyers may have impressive résumés, be great memo writers, or have the sheen of recent federal court clerkships on their résumés, they are often not real trial lawyers.
The Memo Writer Lawyer Many other lawyers involved in mass torts are—to borrow a phrase from master trial lawyer Mike Papantonio—pure “memo writers.” Like business lawyers, they are not trial advocates. They have not studied the art of trying cases, nor are they familiar with the nuances of preparing and presenting a case to a jury. Memo writers are often brilliant academics, boast law degrees from Ivy League schools, or possess pedigreed track records thanks to time spent working as judicial clerks or at “Big Law” silk defense firms. Memo writers excel at drafting legal documents, conducting research, reviewing documents, and writing briefs. They are a critical facet of any mass tort litigation. But once again, they are not trial lawyers. Being a memo writer and being a trial lawyer are, in fact, two very different things.
The Young Associate/Contract Lawyer Oftentimes, young lawyers and inexperienced lawyers are hired to work on an MDL as associate lawyers or even contract lawyers. These lawyers typically serve a critical role by reviewing document production from the defense or documents to be produced for defense discovery. These lawyers typically have less than ten years of experience and often no experience trying cases.
However, I’ve seen far too many cases where large firms—due to their leadership positions in important MDLs—task inexperienced associates with taking depositions, preparing expert witnesses, and handling other strategically important work. I’ve seen firsthand the problem inexperienced lawyers can create—problems that become baked into a case and cause long-term damage at trial.
The Politics and Disincentives of Selecting the Wrong Driver Just as in Ford v. Ferrari, deciding who will “drive” a case is one of the most critical decisions in the process, but that choice is often determined by politics and money instead of wisdom. In today’s MDL world, the fight for leadership on plaintiff steering committees (PSCs) is usually decided by the firms who have the largest number of cases.
Once a firm is selected to serve on a PSC, the amount of money it receives in terms of common benefit fees is typically determined by the number of hours its lawyers spend working on the case. This process creates an incentive for the members of the PSC to ensure that people from their own firms—memo writers, young associates, and contract lawyers—are assigned to the case. The more hours that are logged by lawyers from a PSC member’s own firm, the more potential dollars from the common benefit fund they’re likely to receive at the end of the case, thus disincentivizing them from bringing in experienced trial lawyers. As a result, young and inexperienced lawyers are sometimes tasked with reviewing documents, taking depositions, as well as researching and deciding which experts to hire. Often this yields disastrous results.
I first witnessed this phenomenon almost twenty years ago as a relatively young lawyer. Early in my career, I tried many jury trials as a federal prosecutor and then worked as a trial lawyer for a few years defending Ford Motor Company. I then left the defense practice and started working on single-event product liability cases.
In 2008, I was representing a handful of plaintiffs in a state court case against Firestone for defective tires. A group of other state court lawyers across the country had similar cases, and together we funded a joint research project to better understand why Firestone tires were failing in such large numbers.
Due to this research, we learned that the Wilderness ATX tire had been recalled in Venezuela—but not in the United States. Public Citizen, and subsequently the United States Congress, learned about the Venezuelan recall and began conducting public hearings. This caused a media frenzy, with stories about Firestone tires appearing on every TV news station for months. Before the media coverage, our group of state court plaintiff lawyers knew of about fifty-four cases; after the media coverage, there were hundreds.
Suddenly, lawyers from across the country started filing cases. Not just cases with severe injuries that would be good candidates for trial but a wide spectrum of different kinds of cases: cases involving minor injuries, cases limited to property damage, and class action cases. The JPML ordered that there should be an MDL, with a plaintiff steering committee. The PSC was composed of a mix of lawyers, each holding different kinds of cases. Leadership included some experienced state court trial lawyers and other lawyers who were not trial lawyers; that is to say, they were memo writers who were primarily class action attorneys.
As the litigation unfolded, I attended dozens of depositions. For each deposition, the PSC lawyers reached a compromise on which lawyers would be allowed to take the depositions. The class action lawyers would be allotted half the time for each deposition and a state court trial lawyer the other half.
As I watched the depositions, I was shocked at how often the class action leadership frequently designated inexperienced young lawyers to take depositions. Young associates who wasted time, asked poor questions, or were clearly not students of trial advocacy.
Witnessing the politics and decision-making process that resulted in terrible lawyers being placed in key roles for the largest case in the country was eye-opening. I’ve since seen many more mass torts or MDL cases where key decisions were made and critical work was done by non-trial lawyers.
Corporations and their trial lawyers will spare no expense in mounting a solid defense, using every available tool to win, including hiring the most experienced and skilled defense-side trial lawyers. They will use big data to research jurors. They will rely on years of focus groups to hone their defense, present arguments, and persuade juries. They will hire armies of consultants, research firms, and psychiatrists to support their trial team.
Corporations and their trial lawyers will spare no expense in mounting a solid defense, using every available tool to win, including hiring the most experienced and skilled defense-side trial lawyers.
To match these efforts, the plaintiff’s side in a mass tort should have equally experienced trial lawyers not only trying the case but driving the litigation. We must ensure the memo writers focus on the right issues. We must guide and mentor young lawyers who handle document review work and prepare discovery responses. And most importantly, we must prepare the case for trial, not for settlement.
Handling these responsibilities the right way—including properly preparing a case for trial, pushing for a trial date, and being ready to try a case—is what really matters. It’s the difference between a weak position and a strong position, the difference between a small settlement and a large one.
Lawyers focusing on the wrong problems or facets of a case is a pervasive problem in mass torts. Unnecessary theories and facts either bog down cases or don’t sell a jury of the reality on the ground. Without the eyes and perspective of a real trial lawyer, there is a tendency for cases to become bloated, unwieldy, and logistically impossible to win.
Ultimately—and this should be patently obvious—real trial lawyers are needed to win bellwether cases. Bellwether verdicts drive settlements. A mass tort plaintiff steering committee that allows memo writers or inexperienced “litigators” to prepare and take a leading role in a bellwether trial is a path to failure. There are dozens of big defense verdicts that prove this undeniable truth.
Finally, for most mass torts, it’s necessary to have real trial lawyers ready and able to try individual cases after core discovery and pleadings are resolved through the MDL. After core discovery is completed and critical issues are decided by the MDL court, if the case doesn’t resolve completely by settlement, the consolidated cases are sent back to their respective jurisdictions for trial in the local district courts where the cases were originally filed. The threat of seeing thousands of trials in various jurisdictions across the country becomes an incentive for defendants to settle.
Without the eyes and perspective of a real trial lawyer, there is a tendency for cases to become bloated, unwieldy, and logistically impossible to win.
This was certainly true during the Accutane litigation, which involved a medication primarily used to treat acne. That case was initially consolidated into an MDL in the Middle District of Florida. The federal judge in that case granted a Daubert challenge (a hearing conducted before a judge where the validity and admissibility of expert testimony is challenged by opposing counsel) to the plaintiff’s theory, resulting in all the federal MDL cases being dismissed. The Accutane plaintiffs then filed cases in New Jersey state court, where the defendant was domiciled. Unfortunately for the plaintiffs, this created a bottleneck of cases before one state court judge, who could, logistically speaking, only resolve a few cases in trial per year.
Without the threat of thousands of cases being set for trial across the country, the litigation languished. Over time, the trial court judge and appellate courts changed. Early good orders and rulings were reversed on appeal. After more than a decade, the litigation eventually died.
On Becoming a Real Trial Lawyer Almost any lawyer can become a good trial lawyer, given the drive and intelligence to do so. First, one must study the art of trial advocacy— and second, practice with focus groups and in actual jury trials.
Unfortunately, most law schools do not teach trial advocacy skills outside of a trial team program. Even then, most law school programs teach basic methods. Law school programs do not teach any of today’s best methods for trying a plaintiff case, much less methods for trying a plaintiff’s mass tort case.
Almost any lawyer can become a good trial lawyer, given the drive and intelligence to do so. First, one must study the art of trial advocacy—and second, practice with focus groups and in actual jury trials.
The National Institute for Trial Advocacy (NITA) offers superb programs that focus on basic trial advocacy skills. NITA’s teaching format also requires students to practice delivering mock openings, direct examinations, and other parts of the trial. NITA programs typically videotape their practice sessions, which students review with faculty coaches for feedback. Just as with law school trial advocacy programs, NITA is open to both plaintiff and defense lawyers and does not teach methods specific to representing plaintiffs nor best methods for trying a plaintiff’s mass tort case.
The plaintiff’s bar has numerous trial advocacy training programs. They are, generally speaking, a mixed bag: Some are good; some are not. Most state trial lawyer associations offer programs for their members and provide continuing legal education (CLE) credits for participants.
However, most of these programs do not offer a specific curriculum that focuses on best practices. These programs are typically taught by volunteer lawyers who are selected by reputation and by the associations’ current CLE chairman. While some of these programs offer great value, other speakers are mediocre at best.
There are fewer programs that limit participation to only plaintiff lawyers who’ve represented actual plaintiffs. These programs include Gerry Spence’s Trial Lawyers College, Don Keenan and David Ball’s Reptile programs, Mark Lanier’s Trial Academy, and the Trial School.
All these programs teach advanced methods that are directly applicable to trying a plaintiff’s mass tort case. Trial School, a newer not-for-profit program, even offers programs specific to mass tort trial skills.
Lawyers seeking to become better trial lawyers can also study various books on trial advocacy. Some important titles include Rick Friedman and Patrick Malone’s Rules of the Road, Don Keenan and David Ball’s Reptile, and Keith Mitnik’s Don’t Eat the Bruises. Trial School also has a book club for its members. This program requires members to read a different book on trial advocacy every month, followed by a virtual discussion where members offer advice on how it can help during a trial.
Even with the best instruction and study—not unlike learning to become a race car driver—practice is absolutely necessary to become a real trial lawyer. Practicing with focus groups is a good place to start, especially when it comes to voir dire, opening statements, and closing statements.
Focus groups can also help new trial lawyers deal with performance anxiety, which is a constant issue for most lawyers. Videotaping focus group practice can provide valuable feedback. There are many different companies who offer focus group services, but any lawyer can hold their own focus group using Craigslist or Facebook to find mock jurors. Trial School also provides a costeffective virtual focus group program for its members to practice and focus group their cases.
The best practice, however, comes by trying actual cases. There is no substitute for standing in front of a live jury with a real judge and an aggressive defense attorney. Any lawyer can do this, even lawyers who are already busy building their own mass torts practices. It’s hard work and doesn’t necessarily make financial sense in the short term. But trying single-event cases, even as co-counsel with another lawyer or firm, will build valuable experience and skill sets, both of which are absolutely necessary to drive a mass tort litigation to the finish line.
Conclusion In mass torts, as in all civil litigation, verdicts drive settlements. It takes real trial lawyers—people who have studied the art of plaintiffs’ trial advocacy, learned today’s state-of-the-art methods, practiced before focus groups and during actual trials—to win most mass tort cases. You know you’ve found a real trial lawyer when they can guide the pleadings, develop proof that will sell a jury on a theory, and not only understand the danger points of the case but how to artfully address them. It’s imperative to tell stories that capture client losses in human terms as well as select experts and oversee document review with an eye toward how these elements will play before a jury. It’s this unique combination of skills that ultimately delivers wins and massive verdicts in bellwether cases. So you have two options: Either keep on practicing your craft or find a real trial lawyer who knows how to take a case to its rightful and just conclusion.