Kent J. Schmidt

Transcript

Voiceover
Welcome to another episode of the SharkCast on Litigation Risks Management, where we explore why businesses are so frequently sued and how to mitigate and navigate the dangers lurking in these risky waters.  Join us now as we welcome our host, Kent Schmidt, Litigation Partner at the law firm of Dorsey & Whitney.

Schmidt
I’m very pleased to be joined in the SharkCast Studios by J Jackson, one of my longtime mentors and a very accomplished trial lawyer in our Minneapolis office at Dorsey.  J is one of the most experienced and seasoned trial lawyers at the firm, and it’s been my privilege, over a quarter of a century believe it or not, it makes me sound really old to say that, to serve under his tutelage and to serve as co-counsel in a number of different litigation matters and trials.  So I’m very glad to have you here, J, to talk about the subject that we’re going to tackle today.  Welcome to SharkCast.

Jackson
Well thank you for having me.  I’m honored to be here, and I should state that since you’ve put me in the position of master and student to that, the master, quite often, learns as much from his student, and I’ve had the privilege, I must say, of working with you as well, Kent, and as those listening to this podcast should know, Kent and I tried a couple of week trial.  A very, very interesting trial in federal court in Southern California a few years back and successfully represented the client.

Schmidt
Thanks for those words, J.  That was a interesting trial to say the least.  We might get back to that in a moment.  As I said over the years, I’ve learned many things from you, and there are two things that stand on in my mind, and they’re interrelated.  One is, I think you work very effectively in the litigation process, coordinating with the client.  And two, one of the things you’ve taught me over the years is the importance of developing a case theme early in the process and to return to that case theme early and often.  So I’d like to sort of marry those two concepts and try to tackle today for our listeners any insights that you may give on how the stakeholders in the litigation process can work together to develop litigation themes as well as tackle other things that come up in litigation; the challenges, particularly in protracted commercial litigation such as bet-the-company cases as we say.  So let’s start with the premise and some definitions.  In commercial trial work, when you use the phrase case theme, what is it that you’re talking about, and why is it critical that it be developed early in the case?

Jackson
Well, the case theme is the central point that you want to make to the finder of fact, whether that be the judge, if it’s being tried to the court, or the jury.  Think of a movie or a good book that you have read and there’s a synopsis of the story.  That’s effectively what the case theme is, and it’s fundamentally important because you need to develop your presentation of the evidence around the theme so that the theme becomes the central point that you’re trying to make.  Obviously the facts are important.  Obviously the law is important in studying the facts and the law.  You need to decide early on, as early as possible, and obviously you can amend it and tweak it and modify it as the case goes along:  What the theme is; what is this case about?

Schmidt
Are we talking about trying to reduce this to a memo, a one-pager, a paragraph, or a sentence?

Jackson
What I try to do, early on in the case, is create a one page, no longer than one page, it can be single spaced, decently sized type if we’re going to get that technical, and it’s really sort of what the case is about.  You need to figure out a way to succinctly put it down on paper.  Again, you can modify it, you can adjust it as the case goes along as you learn more things, but try to make it simple and discrete.  Even if you can reduce it to just two or three paragraphs that would be ideal.

Schmidt
Now the case that you mentioned earlier that we tried together here in Southern California a number of years ago was a bench trial, tried to a very smart federal District Court judge, but I know that you do a lot of arbitrations and you also try cases to jury.  The trier of fact is gonna change, and how does the trier of fact, that’s relevant to a particular piece of litigation, impact your case theme development?

Jackson
Trying a case, fundamentally, is a communication game.  Being a trial lawyer is a communication game, and by saying game I’m really just focusing on the fact that fundamentally our job is to communicate with an audience.  And what your question addresses is who’s the audience.  Is the audience a judge who might be very, very sophisticated in the law and have been on the bench for many, many years?  Is it a jury?  A number of people, who don’t necessarily know anything about the law, are learning the case and the facts for the very first time; or an arbitration panel which would be in many ways similar to a jury, although many of the arbitrators might have a substantial amount of experience arbitrating cases.  So how you present your theme changes depending on who your audience is.

Schmidt
It’s very helpful.  One of the things that happens relatively early in a case, most cases, is depositions, and it’s a critical aspect of the case.  So I wanna pivot and turn from talking about the case theme, in terms of the drafting and the conceptual exercise, and discuss how this applies in the deposition process, particularly preparing key witnesses for depositions.  What are some of the ways that lawyers need to be thinking about the case theme as they work with their clients to prepare for deposition?

Jackson
You know, another phrase that I use for case theme is theory of the case, and I use the phrase theory of the case as assimilate to it because it tends to incorporate a little bit more of the law rather than the storyline, the theory of the case does.  So one of the things that I have learned is that you need to understand the fundamental elements of the causes of action and the defenses that are available under the causes of action.  That’s one of the first places to start.  Secondly, you need to understand the fundamental storyline based upon the facts as you’ve learned them, either from the client or the documents that the client has provided you, or as the case progresses through discovery of the opposition.

So once you have that all in line, you can think of a trial or the discovery that precedes the trial as a development of a cast of characters, and you sit down and you say, where does this particular person fit within the story; what role did this particular person have; how can they promote the storyline that we want to present, again consistent with the overall facts and the law; and where can they hurt us if they don’t do a good job in their deposition?  So it’s always in the background.  Obviously when it comes to preparing witnesses you need to be familiar with the documents that bear the witness’ name, either as the author or recipient, or documents that were in the possession, custody, or control of the witness such that the witness would have availability to it.  But in talking to the witness about those things, you always want to keep in mind where their participation in the story fits in the overall theme.

Schmidt
Let me turn to one of the challenges that I have faced in trying to develop case themes, and that is figuring out how to boil down an exceedingly protracted controversy that may span a decade or more; complexities, whether it’s in securities regulations or just the complexities of an unknown industry; and how an industry operates, I think particularly of the financial sector, and how different financial instruments and financial products operate.  How do you simplify those complexities in developing a case theme and not overlook those complexities, not make it simpler than it should be, but nonetheless boil it down to its essence?

Jackson
I have a couple of reactions to that very good question.  One is one of the reasons why I require the theory of the case or the case theme to be written on a single page, perhaps two or three paragraphs long, is it requires you to distill the essence of the case into that compact space, and what you eventually learn is to eliminate a lot of the details that are perhaps important in the presentation of the case to the trier of fact, but not necessarily a part of the overall theme of the matter.  For example, when I was talking earlier about if there is a summary of a movie or a book that you really like, how can you present that without getting into significant a level of detail?  I always think about circumstances where somebody in my family will say to me, well, you saw this movie last night, did you like it?  Yeah.  What was it about?  And so often in describing it, you get into so much detail and you look at the person’s eyes and they sort of say, really I just want the essence of what this is all about.  What was the movie about?

In a way that doesn’t so simplify it that it’s worthless, but nonetheless it voids the detail so you don’t forget about the detail you put it aside, you put it in a spot where it’s handy, and then you boil it down to the essence of what it’s about, and then you organize your facts, and you organize your witnesses in a way that fits within the theme.  But the fundamental theme needs to be simple.  It needs to be the simple thing that you say to the jury or the judge:  This case is about this or this case is about that, and you can do it even when you’re making the presentation.  I think that when you’re presenting a theme to the jury right from the start, it can be really just one paragraph; it would even be better if it were just a couple of sentences, and then you start laying out the detail and how it fits into this overall picture.

Schmidt
And do you typically work with your contact, whether it’s in-house counsel at a larger company or the CFO or C-Suite executives at a smaller company, on developing that case theme and making sure that they have buy-in and getting their response and reactions to it?

Jackson
That’s a really good question, and I’m going to give you one of those answers that some people like and don’t, and the answer is:  It depends.  And let me explain why it depends means not all clients are alike; not all in-house counsel are alike.  One of the first things I do when I’ve been retained to represent an entity and I am working with in-house counsel is I ask them, what level of involvement do you want to have in this case?  How often do you want me to communicate with you?  Is there a guideline you can give me as to the level of issue that you want to address as opposed to the day-to-day functioning of managing a case?  And there are definitely clients that want to be real hands-on.  And certainly with respect to a client and in-house counsel who wants to be very hands on, I will work with that individual.  I might not ask them to help me develop the theme, but once the theme is developed but before it’s finalized, I would definitely go through it with them, if that’s the level of detail that they want to be involved in.

Schmidt
You’ve talked about the importance of the case theme, and I wonder if you have any recollection of examples in which an adversary that you have dealt with apparently failed to follow this principle and ended up trying a case with an incoherent theme.

Jackson
Well, it happens a lot for the good or the bad of it.  I can give you an example that’s a little bit different than my normal litigation life, and that is about six years ago I actually sat on a jury here in Minneapolis in Hennepin County District Court.  It was a rather simple case.  It was a car accident injury, and as you can imagine, at the end of the three and a half day trial we went back into the jury room, and they selected me as the foreperson of the jury.  And so I felt that I could use the opportunity to get the perspective of jurors in the context of me not being the advocate, but part of the finder of fact, and one of the things I was really startled with, maybe startled’s the wrong word, but maybe pleasantly surprised is that one of the first things the other jurors said to me, I think they seated nine of us, so the other eight members of the jury said to me is, wow, one lawyer was so much better than the other one.  And I said to them, why?

And they said because I had an understanding of what they were trying to do; I had a picture of what they were trying to accomplish, and it made it easier with a good lawyer to follow what they were presenting; why their witnesses fit into what they were talking about, and, with respect to the lawyer who did not do that, they just said it just confused me.  I just had a difficulty following what they were saying and why they were asking certain questions and why certain evidence was particularly important to the overall case.  So what I learned from that, and I probably had learned it already, maybe what it did is it emphasized to me the fundamental importance of the theme because it helps the jury follow the evidence.

Schmidt
What a unique opportunity to get that insight sitting in the jury.

Jackson
Yeah, I was surprised that they didn’t strike me and because obviously I have to very early on say I’m a trial lawyer, and I work at Dorsey & Whitney, and…

Schmidt
Right.

Jackson
…the one question that they both asked me is, is your practice include personal injury litigation?  And I said no, and apparently that was satisfactory to them.

Schmidt
Interesting.  If I could extend that just a moment, we need to think of judges as, you know, often referred to as the 13th juror.  Judges are people too.  And I would imagine the same concept applies with the judge.  A judge needs to know early in the process what is your objective; what are you trying to accomplish just like the jurors that spoke with you.  Wouldn’t you agree with that?

Jackson
Oh fundamentally.  I mean, again, who’s the finder of fact?  If it’s tried to the court, it’s the judge and that’s the audience.  It’s interesting you asked that question because when I’m preparing my client for a jury trial, as I get closer to the actual date of trial, one of the things that I say to them is the judge is completely unimportant in this proceeding, and they’ll look at me and be startled and say, what are you talking about?  It’s the judge.  And I said, you’re not trying the case to the judge.  You’re trying the case to the jury, and the only role that the judge has is to rule on the evidence and keep basically the procedure going efficiently and proceeding forward in a way that is consistent with the law.  And so my focus is constantly on who’s the audience.

One of the analogies that I give to my clients is, we’re sitting in the courtroom, we’re sitting in at counsel table, there’s our opposition sitting in the courtroom and council table.  There’s the judge, there’s the jury.  And you have to think about it, switch it around, put yourself on a stage in a small auditorium where you’re putting on a play, and the jurors in the audience and they watch everything that’s going on.  If you scratch your nose during examination, they will notice that.  And I emphasize to them that one of the instructions that the jury is going to get is that they cannot talk about the case until after the instructions are given, after all the evidence is put in and the court’s instructed them, so what do jurors talk about?  What do they talk about when they go back into the jury room during recess is when you’re in the middle of trial, they talk about you.

They talk about did you see that individual who fell asleep?  Did, why is that person wearing that tie today?  I’m being serious about this.  I’ve interviewed jurors, and that’s what they talk about.  And again, during my three and a half day trial, that’s what the jurors talked about because they can’t talk about the facts.  The other thing that I’ve learned, and I think this is fairly well recognized, is that jurors reach impressions very early on.  It makes the opening statement really, really important, and to emphasize the point you’re making, Kent, through your really good questions is it makes the theme really, really important.  If you go through a mock, for example, a mock jury, if you interview the jury after opening statement, how would you rule on this case?  I think statistically it’s fairly high that the outcome’s going to be fairly close to their first impression after the opening statements, so that’s why the theme is so fundamentally important.

Schmidt
It’s difficult to dislodge those initial impressions.

Jackson
It really, that’s a good way to put it.  It really is.

Schmidt
Yeah, it puts a lot of pressure at the opening statements stage of a trial.  Yeah, I think about everything you’re talking about in terms of trying cases, particularly jurors, but also to judges.  And just parenthetically here, trials are an ordeal, and in my experience what happens is if I haven’t had a trial for a while and I think maybe this case is going to go, I start itching to go to trial and then I go to trial, and it’s however long a week, two weeks, three weeks, and as soon as the trial is over, I’m completely different mindset like, I would like to not have a trial for a long time.  You enjoy it.  There’s nothing quite like it, professionally.  No experience quite matches it, but incredibly stressful few weeks or however long you’re going to be in trial.

Jackson
Well, and, you know, it’s a little bit if I can provide this analogy, it’s a little bit different than education because if you think of yourself being in a class and you study, study, study and let’s say you like the professor a lot and he or she is really, really good and you enjoy going to class, and now suddenly at the end of class you have to take a three or four hour final exam, and the final exam is like the worst thing, you know, why can’t I just be in class.  I think it’s just the opposite in a lot of ways with trials.  I think that as interesting as the prep can be actually being in trial is the highest of highs.  It’s just that it’s a lot of work.

Schmidt
That’s for sure.  Long days and short nights.  Well, I said at the outset that one of the things I want to also touch on, we have already a little bit but delve into a little bit deeper, is working with in-house counsel in more general sense, even beyond working on case themes, and that’s something that I know I and others have admired about you over the years.  I think you’ve mastered the skills and the art of working with in-house counsel, and in-house counsel runs the gamut from someone who has never experienced litigation before to experienced, you know, chief litigation officers that litigate and have a docket of litigation matters.  So what are some things that you’ve learned over the course of your experience as a trial lawyer in working effectively with in-house counsel?

Jackson
Well, I think, Kent, as you would readily acknowledge, managing expectations is a fundamentally important part of being a good trial lawyer.  You never, on the one hand, guarantee an outcome and never, on the other hand, guarantee a loss, but you need to manage expectations, so that’s first step number one.  The second is, as I mentioned earlier, how much do you want to be involved?  I mean, there are a lot of in-house counsel that have, as their role, they’re managing litigation.  They may want to be because of the nature of the case, you mentioned earlier, bet the company cases.  I can assure you that in-house counsel will be very involved the more significant the case is, but you may have a lot of cases with the same in-house counsel and you get sort of familiar with them, but you may also learn that the in-house council is managing 30 pieces of litigation at the same time.

And as much as they would love the opportunity to dig in and get down in the trenches with you, they just don’t have the time to do it.  The other thing that I’ve learned is that if you’re dealing with in-house counsel that has the responsibility of managing litigation, they report to somebody else.  They report either to the chief litigation officer within the company or maybe, depending on the size of the company, general counsel, or maybe even up to the C-level.  And I always think in terms of what does my primary contact need to make them look good in front of the people to whom they report; what do they need to know?  I guess the third point that I’ll make, I think it’s the third one, is when you get involved in the bet the company case, you might have multiple levels of who the client is that you’re dealing with, and each level is important.

You might have a day-to-day function of dealing with the individual I previously identified as the in-house counsel that’s responsible for managing outside litigation, and you’re gonna have a day-to-day interaction, again depending on the level of involvement that they want, but if it’s the more serious of the cases, you might also have to be dealing with the general counsel.  So although you don’t deal with the general counsel on a day-to-day basis, you might, for example, on a monthly basis or a quarterly basis have a face-to-face meeting with him or her and they are gonna have their own level of interest.  How’s the case going?  What’s going on with the matter?  And then if it’s really an important bet the company case, you’re likely dealing either with the CEO or perhaps even appearing on a quarterly basis in front of the Board of Directors informing them of the status of the case.

So I think you need to understand the landscape first and foremost.  You need to understand what level of knowledge and involvement each layer of those responsible for the management of the company want to know about, and then you do your best to fully communicate with them, going back to what I said at the outset, and managing their expectations.  That, to me, is both fundamentally important and really difficult because on the one hand you don’t want to over promise, on the other hand you don’t want to under promise, so how do you communicate with them in a way that they have a realistic view without being both overly optimistic or overly negative.  That’s a skill that takes a while to develop.

Schmidt
Well, you’ve mentioned a couple of times managing expectations and one of those line items of expectations is:  How much is this going to cost?  You know we’re asked that often at the commencement of a major piece of litigation and asked to prepare budgets or give ranges.  It’s very difficult and many times we exceed that due to factors beyond our control.  What are some ways that you’ve tackled that rather sensitive topic, particularly when the litigation drags on month after month, trial gets continued, more depositions are taken than expected and the litigation cost become a rather sensitive issue with the clients?

Jackson
Well, that’s a really good question.  Let me see if I can break it down this way.  Many clients ask for budgets and many clients ask for detailed budgets at the commencement of the lawsuit, which as you well know, Kent, is really difficult to prepare a detailed budget when you don’t fully understand the landscape of what you’re dealing with.  Secondly, it’s difficult because you don’t have ultimate control over what’s gonna happen, both in terms of the pretrial activities and in terms of trial.  I mean, there are other actors; there are the lawyers on the other side; there are your own witnesses and whether they are cooperative; there are judges that either make life more difficult or make it simpler, and so there are aspects of the budget, that after you’ve been doing it for a while, you can get a rough estimate of it, but it’s always a range.

So you need to sit down and say to yourself:  What is the scope of this case gonna be?  I mean some budgets that they ask for, you know, breaks it down between pretrial; how many depositions are you gonna take; how much is the cost of each deposition gonna be?  So you do the best you can, but again, to manage expectations you need to have the client, depending on their level of sophistication, understand that it could vary significantly depending on who you’re dealing with.  As you well know, if you’re dealing with a difficult, aggressive opposition counsel, it’s gonna be far more expensive than if you’re dealing with a council that is less aggressive, more cooperative, and just wants to get to the fundamental point of what the case is about.  So the first thing you do is you just have to think carefully about what you do and you need to make certain that the client understands the variables that could impact the accuracy of what the budget’s gonna look like.

The second thing you need to do is, depending on what firm you’re in, you could be the billing lawyer or you’re not the billing lawyer if you’re handling the case.  If you’re not the billing lawyer, you should make sure the billing lawyer provides you with a copy of each monthly bill, and if there are increases in the amount of work or the time spent beyond what the budget is, I think it’s probably worthwhile picking up the phone and talking, making certain that the in-house counsel knows that the other lawyer’s being far more aggressive that rather than two or three depositions that we thought they were going to take, they now want to take 10, and suddenly the case is gonna be far, far more expensive no matter what you try to do to limit it.

My last comment is that we have within Dorsey & Whitney a group that can help us manage budgets that keep us on track in terms of what those budgets are, and provide us with data and detail on either a daily, weekly, or monthly basis, so we can see how the case is progressing, consistent with or inconsistent with the budget, and then you gotta communicate.  You’ve gotta get up pick up the phone, or in the next meeting you have with the in-house counsel, explain to them.  One of the things that I’ve learned over the many, many years is that in-house counsel in general, but in particularly general counsel don’t like surprises.  They understand when things are more expensive than everybody thought it would be, but they don’t like surprises.  Oops, I told you that this was gonna cost, you know, $100,000 and now it’s $400,000, and I never told you in the interim that that was gonna happen.  That’s not the relationship that you want to build with the people that you’re working with.

Schmidt
Well, like almost any type of relationship, communication is essential.  That’s the take away.

Jackson
It goes back to what you and I were talking about at the outset.  It’s a communication.  It’s our job, is communicating.  That’s fundamentally what it is.

Schmidt
Right, all good answers and good responses on all of this.  Well, we now get to the point in the podcast segment that we like to call the Deeper Dive.  In the time that remains, we’d like to learn a little bit more about you as a person and what you do when you’re not trying cases around the country.  I know you pretty well, so I have the privilege of knowing some of these aspects of your life, and one of the things that I recall over the years is even though you’re one of the busiest and highest in-demand lawyers in the trial group at Dorsey, you typically do take out time to have important summer and meaningful summer vacations away and spend time with your family, and I happen to know you just got back from a vacation in Italy.  Can you tell us a little bit about that, and what that has meant to you personally and professionally?

Jackson
Sure.  I think getting away from what we do on a day-to-day basis is really, really important.  It’s hard to do sometimes if you’re busy, but it’s really, really important just to have a change of scenery in your life, not only helps your body relax from the day-to-day demands that the practice law has on you, but it also gives you a broader perspective of things that you might not have otherwise had.  I think there are many ways to get a broader perspective and to relax.  One of them is taking a holiday and going to a part of the world or a part of the country or part of your own state that you’re not familiar with and spending time in new cultures and with new people, and we were fortunate enough, my family and I, that we took a 12- or 13-day trip to Italy.

We went to different parts of the country.  The bulk of the time was in Umbria, a part of Italy that I have previously not spent a lot of time with.  It’s the only landlocked region of Italy.  All the other regions in Italy touch some body of water, either on the west or east side.  I would describe it as green, green trees everywhere, rolling hills, all the cities, all the ancient cities in Umbria are built on the top of a hill because they were placed there to defend themselves during their formation and a lot of them are walled cities.  It’s a lot of farmland; the food is terrific; the individuals there are far more low-key, far less pressured, so it was a fantastic opportunity.  I’ll throw in one other thing.  I arranged for this so that when we had the bulk of our trip, which was the seven days in one location, to have my older kids, I have four children, my older kids have their own kids, and so I have five grandkids, and they all came, so we had 14 people in all.

Schmidt
How did you transport like, when you’d go out to dinner or do whatever?

Jackson
Well, this particular location had a lot of amenities that we could take advantage of.  I mean, it was in a house, it was in a facility where there were seven houses that you can rent.  It also had a hotel that used to be an old castle that they converted into a hotel, and it had kitchens, so we could make our own food, for example, we could...

Schmidt

And cooking in Europe, particularly in Italy, is different than cooking here.

Jackson

Well, the other thing…

Schmidt
It’s like

Jackson
…the other thing that they offered were classes, so we had one class where they came to the house and taught us how to make pasta, and that was super fun and the kids could watch.  And then the second time we did it, it was to make pizza, so it was a simple meal, but it was, I mean, we did it from the dough, from kneading the dough to turning the dough either into noodles or into a pizza crust, and then all the toppings that went with it.  Then they had a couple of restaurants there and they did offer babysitting services, so we did have one day where we able to go out, the adults in the group, into the countryside, and we actually went and visited a vineyard.

Umbria has wonderful wine, I will add that, as does Tuscany, and they’re right next to each other.  That, and I had the opportunity to read.  I think you can help develop themes.  I don’t mean the core issues in a case by reading, but you can help mold it into a really compelling story the more you read, and I encourage people to not give up on reading fiction to the extent that it helps you understand how a well-told story is presented because that’s really ultimately what you want to do.  And I have, over the years, used books and the themes of books in closing arguments, for example, so I find keeping my mind exposed is really, really helpful in communicating what I want to communicate to the finder of fact.

Schmidt
Well, all of this talk about Italy and wine brings me to an anecdote of my own.  Just a little over a year ago, and this will illustrate, J, how you’ve impacted me and how you’ve taught me a lot of things, not just about law, but a little over a year ago I went to visit our daughter, who was studying abroad, and my wife and I went over first to celebrate my wife’s birthday and then also to visit our daughter studying abroad.  And we met her in Rome, and it happened to be that it was Good Friday, and so Rome was pretty crowded.  But we had a good time nonetheless, and I was sitting at the foot of the Spanish Steps, and they both had gelato, and I had a cup of black coffee and a glass of red wine.

And I said to them as I was enjoying that afternoon, you know, J Jackson taught me a number of years ago that it’s okay to drink black coffee and a glass of wine at the same time.  You don’t have to do it sequentially, and they sort of offset each other then the physiological effects.  And so I actually have a picture of me enjoying a cup of coffee and a glass of wine simultaneously and used your name in vain at the foot of the Spanish Steps, so I thought you’d enjoy that anecdote, speaking of Italy.

Jackson
I followed that same advice during this trip as well so.

Schmidt
I’m sure you did.  Well, that’s all the time we have for today.  Thank you for listening.  I’m indebted to the extraordinary team at Dorsey for making this podcast and episode possible.  For more resources on this and other litigation risks and techniques in managing the litigation process, please go to litigationrisks.com where more information can be found, including a book written by yours truly.  Until next time, my friends, this is yet another reminder that there are a lot of sharks swimming out there in the murky waters, so please swim safely.

Voiceover
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