Podcast - Exuding Credibility in the Courtroom
In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small sits down with Frank Vecella, principal at McKool Smith and former head of litigation for Ericsson, for an in-depth discussion on their experiences in trial law. Mr. Vecella provides insight into his years hiring trial counsel for Ericsson, why exuding credibility in the courtroom is so important, how to be the best trial lawyer you can possibly be, witness preparation and more. Listen to this episode for invaluable advice on how jurors and trial lawyers alike can thrive in the legal field.
Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.
Dan Small: Frank Vecella, welcome to "The Trial Lawyer's Handbook" podcast. It's great to have you on board.
Frank Vecella: Thank you, Dan, I appreciate the invitation. I look forward to it.
Dan Small: Frank, for those who don't know his reputation, was the head of litigation at Ericsson, the amazing international telephone company, for 16 years, and also has been an extraordinary trial lawyer in private practice. He comes from both sides of the fence, and we're delighted that he's taken the time to join us. Frank, let me start out with your in-house work and ask the question that I'm sure all trial lawyers want to ask, which is, when you are hiring counsel in the U.S. and around the world, what did you look for in hiring trial counsel?
Valuable Traits to Look Out for When Hiring Trial Counsel
Frank Vecella: Thank you, Dan. A lot of things, actually. The first thing I should say is I never hired law firms, I hired lawyers. And the most important factor in my decision was who is the person who I think will be the very best person to be the first chair trial lawyer in this new case in the event that it actually goes to trial. That was first and foremost, and what law firm they were associated with was not nearly as important to me as that individual lead lawyer. I also always wanted to have a lot of input into the makeup of the rest of their team. Often they would, of course, propose the team that they thought was appropriate once I reached out to them, and I rarely pushed back on that because they always knew their people better than I did. But I did insist on getting to know each and every member of the proposed trial team before they started down the track. I thought that was very important to have a personal relationship with each and every member of the team. I always felt that representing Ericsson was a real privilege, and I wanted to make sure that each and every one of the team members felt that way, too. I also made it very clear that I was not a fan of what I would sometimes call the Revolving Door Syndrome, or merry-go-round, where we would hire these four or five attorneys from this particular firm only to learn a couple of months later that one of them had been taken off the team to work on what the firm deemed a more pressing matter, and now I'm inheriting a new person who doesn't have the background of the case. And now, of course, I'm paying to get the new person up to speed. So those were a few of the things that I always took into consideration when I was making my hiring decisions.
Dan Small: I have to say that that's great. Years ago, I left a firm and I called a major client I was in the middle of litigation with to tell them that I was leaving. And his reaction was, so what? That's not my problem. We're staying with you. So I understand that principle. When we talked earlier, you made a great point about the importance of honest counsel, having lawyers who will tell you the real deal, not what they think you want to hear. Tell us more about that.
The Importance of Honest Counsel and Other Essential Qualities
Frank Vecella: Yeah. Thank you, Dan. There are several qualities or traits that all of my outside counsel had to have in order for me to consider retaining them when I was an in-house attorney staffing litigation matters for my employer, and I would put honesty at the very top of that list of important traits. I would like to believe that every attorney I hire during my 16-year tenure as the head of litigation for Ericsson had every one of these traits. They were honest, ethical, professional, highly intelligent, had the necessary, relevant experience. They also had to have great familiarity with the venue and the specific judge who had been assigned to our case. And they had to have a great reputation with that judge. That didn't mean that they had to have tried 10 cases in front of that very judge, but they had to be a known quantity to that judge, someone who the judge was going to have a lot of respect for and someone who had a lot of credibility with that judge.
I would like to believe that every attorney I hire during my 16-year tenure as the head of litigation for Ericsson had every one of these traits. They were honest, ethical, professional, highly intelligent, had the necessary, relevant experience.
Dan Small: We talked earlier, and you also added to that great list, the idea of — I put it my own terms, I always tell people that juries have a great "jerk radar," the great ability to smell out jerks — and you talked about the importance of not having jerks on your team. How does that come about?
Frank Vecella: Yeah. Well, I had two very informal tests that my outside counsel had to pass in order for me to consider retaining them on cases for my employer. And those two tests that I used to use were, one, is this someone who I would enjoy going out and having a beer with after work? And the other test was I used to spend a lot of time flying back and forth to Stockholm, Sweden, where Ericsson is headquartered. A lot of our witnesses came from there, and we would have to go over there to prep them and defend their depositions, and so one of the tests that I would employ was, is this somebody who I would not mind sitting next to on an eight-hour flight to or from Europe? If they could pass those tests, that meant that I liked them, and if I liked them, chances are good that the judge and the jury will, too.
Dan Small: I love it. I have heard the have a beer with them test, but the true asset test is eight hours sitting next to them. All right. So what else are you looking for? What else is important to you, Frank?
Frank Vecella: Well, you mentioned the importance of communication, I think, and that was always key. They had to be willing to adhere to all of my personality quirks, one of which was if I had asked a question of outside counsel, a relatively straightforward question, they had to understand that I would be perfectly fine with a one-line email response. And what I didn't want was a 50-state survey of the law, followed by a 20-page memo. I insisted that they be very, very cost effective in everything they did. They had to be good stewards of Ericsson money. Those who know me, your partner, Josh Krumholz, will confirm this, know that I have a reputation for being rather frugal, some would say downright cheap. I tried to always be as frugal with Ericsson's money as I always have been with my own, and I wanted to work with outside counsel who would take that aspect of it as seriously as I always did. And then finally, I would say my outside counsel had to convince me that they were ready, willing and not only able, but licking their chops to actually try the case should it come to that. You and I both know that the best way to achieve the best possible settlement in any case is to make sure the other side knows that you are fully prepared to take the case the distance if need be.
Dan Small: Many years ago, I was in-house counsel for a national healthcare company, much smaller than Ericsson, but managing litigation around the country, and that's one of the things I noticed, is that because I came into the job having been a trial lawyer, I was much more sensitive to whether or not the lawyers I hired were trial lawyers and not just litigators. And I don't say that in any negative way, it's just there is a distinction between the two, and it sounds like you found that as well.
Frank Vecella: Yes. And I think before I went in-house with Ericsson, I had worked for a great law firm in Dallas for 18 years and handled all types of litigation matters, tried a lot of cases, and I think that really made me much better as an in-house litigation manager, having been in the same seat that my outside counsel were in, and I would try to make sure they knew that since I'd been there, done that, since I had stubbed my toe so many times, since I had made so many mistakes as a trial lawyer myself, that I wasn't going to be an armchair quarterback and second guess their every move. I remember this one attorney who had done a lot of work for Ericsson even before I came on board, tried a very important case for us, and even told me before the trial, he said, if we lose this case, I will eat my bar card. Well, as you might imagine, we did not win that case. We lost it. Got about a $70 million judgment entered against us, which fortunately we reversed on appeal. But he was so sure that I was going to go report back up to the channels, up all the way to Sweden, how he and his team had completely messed up this case. And I pulled him aside right after the jury came back with their verdict. And I said, listen, this is not a reflection on you. This is not a reflection on your firm. We will get this resolved properly on appeal, and I just want you to know that the word that comes back to all the powers that be at Ericsson, from me, is that you and your team tried a heck of a case and we can't win every one of them and this was not your fault, and I promise you that's going to be the message they hear. That was about 25 years ago, and that particular attorney and I are still very, very close friends. And I think he appreciated the fact that I wasn't going to just criticize and second guess him when we did not get the result we were hoping for.
Dan Small: That's great to hear. We all do make mistakes. What's the worst mistake that you ever made in hiring counsel?
Worst Mistake When Hiring Counsel
Frank Vecella: Well, a large patent holder had obtained a huge judgment against one of our competitors. It was a patent infringement case, and I was pretty sure we were going to be their next target. I was also pretty sure that when they got around to suing us, they would do so in Marshall, Texas, which, if there are any patent litigators in your audience, will know that that's a very favorable venue for plaintiffs in patent infringement cases. The local judges have — you can get a fast track to trial, pretty patentee-friendly rules, etc., not a place where defendants' motions for summary judgment are typically granted, etc. So I wanted to win the race to the courthouse by filing a declaratory judgment action against them in a more neutral venue, alleging that we did not infringe their patents and their patents were invalid. I already had my lead counsel from a large Dallas firm, but I needed to find a great local counsel in this city and state where we decided to file our DJ action. A place where I knew we could demonstrate personal jurisdiction over this other company. I solicited a lot of recommendations. One attorney came highly recommended by an attorney I've known a long time and respect a great deal. This person was the managing partner of a litigation boutique firm. He graduated first in his class at Harvard Law School, and after that he went on to clerk not only for a federal circuit court, but a U.S. Supreme Court justice. I talked to him over the phone, he had all the right credentials, a lengthy litigation background, he said all the right things over the telephone, so I hired him as my local counsel. We filed our declaratory judgment action, the patent holder sued us in Marshall, Texas, the next day, then filed a motion to dismiss our first filed DJ suit, claiming that they had never threatened to sue us before we sued and therefore there was no actual case or controversy at the time that we initiated the declaratory judgment action. My lead counsel and I agreed we should have our local counsel handle the argument at the hearing on our adversaries motion to dismiss. I'm there, my lead counsel from Dallas is there, local counsel stands up and says, may it please the court. He then fumbles his own name, which was the first sign of trouble. Tried to introduce me and my lead counsel, could not remember either of our names. He started stammering, rocking back and forth, and then went completely silent. He simply froze. I thought he was going to pass out right then and there. He was so nervous, he basically became paralyzed. I don't know if you saw one of my all-time favorite movies, My Cousin Vinny, but there's a scene there where the young kids hire this guy and he can't get three words out of his mouth. It was just like that. At that point, I nudged my lead counsel that he needed to jump up and just wing it. And I have to say, in my 40-year career, that's probably the most embarrassing moment I've ever experienced in a courtroom.
Dan Small: Wow. When I was general counsel, I hired a retired appellate judge who was now in private practice. And actually, I should say she had actually been hired by the previous in-house counsel. Then I came in and I had much more litigation experience, and I called up this lawyer and I said, nice to meet you and etc., etc., can you send me a draft of your brief so I can see what you're thinking? And the response was, oh, I never do that. I never share my drafts. I thought she was joking at first. I said, well, no, really, I'm, I've been a litigator for many years. I've appealed a lot of cases, I'd like to see your draft. No, no, no, I don't do that. And then went back and forth, and I finally said, OK, you know what? You're right. Don't send me your draft. Send me the file here. You're fired. You're done. I can't hire a lawyer who I can't communicate with. Have you ever had those kinds of communication difficulties with the lawyers that you bring in? Are you good enough at screening that out?
Frank Vecella: I can't say I've ever experienced what you just described. I know my flippant response when she said, well, I don't, my practice is not to share drafts of briefs with my client. I would have said, well, my practice is not to pay for drafts that you're not willing to share with me, so we're even.
Dan Small: That was the end result. Let me actually shift gears a little bit, because I know that both in your in-house and outside counsel roles, you do a lot of training, a lot of CLEs, and we both share a passion or an obsession, I don't know which it is with me, with witness preparation. I wrote the ABA's manual on it, and you do a lot of training on it. What do you see? What mistakes do lawyers make in preparing or not preparing witnesses?
Tips for Witness Preparation
Frank Vecella: I think preparing a witness to testify, whether it be by deposition or at trial, is such a critical component of the preparation of any case for trial. It's, it's one of the most important things, I think. And I always invested a lot of time and effort in doing it. And I'd like to think doing it the proper way. And Josh Krumholz, our mutual friend, your partner, told me that you are a real expert on this, so I realize that when I give you my practice pointers, I'm preaching to the choir. But I lead off every prep of every witness by saying the cardinal rule is, to be honest, to just tell the truth. As long as you tell the truth, you're going to be just fine. The first corollary to the cardinal rule, though, is don't volunteer extraneous information. Keep your answers short and to the point. Don't be evasive. Don't be hostile. Don't be argumentative with opposing counsel. Especially if it was in a deposition, I'd make sure the witness understood that their goal was damage control, not to try to win the case for us. I also preach to all of my witnesses when I was preparing them that demeanor and body language often are just as important as the answers. Sometimes maybe even more so. Back when I was a young pup trying cases at my first firm before I went in-house, I had the great privilege of working with a jury consultant that very, very few people knew at that time. Many, many people know him now. He now just goes by his first name, Dr. Phil, but when I worked with him, he was just Phil McGraw, psychologist and jury consultant back in the late '80s, early '90s. Phil, with his psychology background, hammered into my brain that the adage that something like 93 percent of all human communication is nonverbal. So that was always something I stressed with all my witnesses and still do. Really, I think it all boils down to credibility. I tell my witnesses, if the judge and the jury find that you're credible, everything else will fall into place.
Dan Small: I was a federal prosecutor for 10 years before I went into private practice and in that role prepared hundreds of witnesses, the good, the bad and the ugly. And when I got out into private practice, I was surprised at how many lawyers, including very good lawyers, just didn't fully understand the challenge of preparing a witness and the importance of preparing a witness and how unnatural an environment we were asking normal people to step into. Why do so many lawyers not fully understand that? Is that your experience?
Frank Vecella: My experience is — I think we talked earlier about the difference between litigators and trial lawyers — I think most really good, extraordinary trial lawyers absolutely understand what we've been talking about, about the importance of preparing their witnesses to testify, because everything they do leading up to the actual trial is trying to put their case in the best possible light for when the trial starts. But as you and I both know, there are a lot of air quotes "litigators" out there who have been litigating for years and years and years but probably haven't tried many cases. And I think if a litigation attorney is going to not fully appreciate the importance of preparing their witnesses to testify, it's probably because they just haven't had much time in a stand up role in the courtroom themselves. Because if you've tried cases, I don't know how you can overlook the importance of preparing your witnesses and doing it the right way.
Dan Small: Absolutely. So let me move to your experience as a trial lawyer, and in particular in these more complex IP cases. The average juror is not a rocket scientist. That's not saying anything negative, I love juries. I believe in them, but they're normal people. One of the best practices for trying a complex case to a jury of normal people.
Best Practices for Trying Complex Cases to Juries
Frank Vecella: Yeah, a lot of my practice has been in the area of intellectual property litigation. Some of these patent cases are so technically intricate. I was a history major and a French major at a small liberal arts college. I don't have a technical bone in my body. Why Ericsson hired me to be their head of litigation remains one of the great mysteries to me. But one of the advantages of that was if my outside counsel couldn't explain our, whether it was non-infringement defense or our invalidity argument, if they couldn't explain it in a way that I understood, then I knew we were going to have a problem when it came time to presenting the case to the jury, because I usually came at these cases from a similar background to that of most of our jurors. On the other hand, jurors never cease to amaze me at how often they reach the right result. And I think it's a huge mistake when lawyers underestimate the capacity of jurors to process a lot of information in a short time. They work so hard at getting it right. They are usually so attentive, so focused, and they almost always get the right result, sometimes in spite of the performances of the trial lawyers. And part of that, you know, we can control and part we can't, but the parts that we, trial lawyers, can control, I think, is make sure everything we do in the courtroom is about exuding credibility. That, to me, is the most important word when it comes to distinguishing between a good trial lawyer and a great trial lawyer, is establishing credibility with the judge and with the jurors. I think the best way to do that, aside from being honest and reasonable, professional, understandable, relatable is to be yourself. We all have different styles. We all have different personalities. But I really think all great trial lawyers have to be authentic.
On the other hand, jurors never cease to amaze me at how often they reach the right result. And I think it's a huge mistake when lawyers underestimate the capacity of jurors to process a lot of information in a short time.
Dan Small: I think that's so right. It's interesting that you talk about communicating with the jurors. I always tell people each trial practice that it's wonderful to talk about your case with other lawyers, but they're not your jurors. The people you want to talk about your case with are non-lawyers: family, friends, strangers in a bar. I mean, I'll just go in someplace and tell the story. And the reality is what we do is interesting. People like stories, and it gives you the opportunity, if you tell your story to strangers in a bar or wherever they may be, gives you the opportunity to listen to their questions. And that really is how you develop your case, by listening to people's questions and reacting. So I think that's so important that as part of trial practice.
Frank Vecella: If I may, Dan, I'll tell you a quick story that two or three weeks ago I went back to Dallas. I'm on the East Coast right now, but I went back to Dallas to attend the Eastern District of Texas Bench Bar Conference. It's an annual three-day conference they do that's really extraordinary, and one of the panels they did they had some real jurors from real cases that were tried in Marshall and Tyler, Texas, come and answer questions from a moderator. One of my law partners was one of the two moderators, and they had about, I don't know, five or six jurors up there in front of all these hundreds, if not thousand or more judges and trial lawyers. And they were asking the jurors to recount their experience sitting on a jury in the Eastern District of Texas. Some of the jurors had been in that role 10 years ago, and they were being asked about the experience and they still remembered aspects of the case. They remembered what they liked and didn't like from this one witness, what they liked and didn't like from this one attorney. And this is going back 10 years, and I was blown away by the level of attention that these jurors devoted to their civic duty. It was mind-boggling to me and just made me very, very proud of our American jury system.
Dan Small: When I was a prosecutor, I had a woman come up to me and in the grocery store one day and, oh, Mr. Small, I was on your jury! And I had absolutely no memory of her, and it turns out that she had been on a jury in a case that I had tried six years earlier, and I had a vague memory of the case. But she remembered every witness, what I said, what I screwed up, you name it. It was just extraordinary, really something to see.
Frank Vecella: It just proves the point. We should never, ever, ever underestimate our jurors.
Dan Small: I think that's right. It's easy to bash juries, too. They make mistakes. Well, they're human. And lawyers, doctors, butchers, bakers and candlestick makers. But collectively, I agree. They have an extraordinary level of wisdom. Holland & Knight calls this podcast "The Trial Lawyer's Handbook." And do you have any parting words for our trial lawyers out there based on your extraordinary experience?
Parting Wisdom and Closing Comments
Frank Vecella: Dan, I'd like to add two more points about how to be the best trial lawyer you possibly can be. One is, I believe it's super important as a trial lawyer to be respectful toward everyone involved in the process. Of course, you're going to be respectful toward the judge. Of course you're going to be respectful toward the jury. But I think it is so important to show the same level of respect to the paralegals and the staff who are on your team, the person who's running your audio visual equipment or your graphics. I think it's important, when you're in the courtroom and the judge in the jurors are watching your every move, to show respect to your opposing counsel. And I would submit that it's important to do that, even to your hostile adverse witnesses. The only exception perhaps being if you're 100 percent sure that the judge and jury don't like them or believe them, then in that case, you know, I think you're welcome to go for their jugular. But otherwise, I think showing respect to everyone involved in the process is important if you want to be the best trial lawyer you can possibly be. And then the second point I'll make is a lesson I learned from my father, I hope you don't mind me making a plug for my father. He's been gone now for seven years, I miss him every day. He was my hero. He was my idol. He was the managing partner of a trial firm in my hometown of Baltimore. He was in the American College of Trial Lawyers. He's the whole reason I went to law school. And I remember when I was in law school, and he tried cases back in the day when trial lawyers tried 20, 30 cases a year. I remember he sat me down, I think it was my first year of law school, when I told him I wanted to be a trial lawyer just like him, and he gave me this lesson and I've never forgotten, he said, Frank, there's basically three kinds of cases. The first is the case where the facts and the law are on your side, and there's really no excuse to not win those cases. The second bucket would be those cases where the facts and law are both against you. And in those cases, your job is to do your level best to get your client the very best possible out of court settlement. But most cases, for one reason or another, tend to fall in either of these two camps:- either the facts are with you, but the law's against you, or the facts are against you, but the law is on your side. And my father told me in 90 percent of those cases, the lawyer who is better prepared will win. There's just no substitution for preparation. It's a grueling experience preparing for trial. We all know that. But there's no taking shortcuts. There's no substitute for putting in the time, putting in the hours and making sure you're ready to put your best foot forward. So that's just a little shoutout to my dear, departed father.
And my father told me in 90 percent of those cases, the lawyer who is better prepared will win. There's just no substitution for preparation.
Dan Small: Frank, I never met your dad, but I wish I had, because that is extraordinary wisdom. It's been a great interview, I really appreciate your time. This is "The Trial Lawyer's Handbook" podcast. Thank you so much for joining us, Frank.
Frank Vecella: Thank you, Dan. It's been a real pleasure.