Podcast - How Do You Define Success?
In this episode of "The Trial Lawyer's Handbook," litigation attorney Dan Small reflects on the question of what it truly means to "win" in the courtroom, sharing insights from his experience prosecuting the Farmers Export grain elevator explosion case. After two explosions claimed the lives of 54 workers, the Occupational Safety and Health Administration (OSHA) and U.S. Department of Justice (DOJ) sought to hold two managers accountable in a month-long, emotionally charged trial. With compelling evidence and moving testimony from grieving workers and investigators, the case became more than just a fight for justice — it became a turning point. Mr. Small reveals how the trial itself sent a resounding message that sparked meaningful, industry-wide change, leading to a decade without similar deadly explosions. His reflections highlight how success in the legal world can be measured not only by the outcome in court, but also by driving progress and inspiring reform, transforming what may seem like "losses" into some of a lawyer's proudest victories.
Listen to more episodes of The Trial Lawyer's Handbook here.
This podcast episode was adapted from Mr. Small's book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Daniel Small: We try cases to win. We are competitive by nature and we'd have it no other way. But every case is different. Sometimes it's hard not to wonder what it is we have really accomplished by winning. How do we define success?
The Occupational Safety and Health Administration, OSHA, asked the Department of Justice to prosecute the Farmers Export grain elevator explosion case that we've been talking about in prior episodes because they saw a problem in the grain elevator industry that they had been unable to fix. Fifty-four people had died in two explosions in five days. Something needed to change. Something had to get the grain industry's attention. Maybe prosecuting these two individual managers would help. I was sent down from Washington, D.C., to assist. Everyone understood that this was not an ordinary case. There was much more at stake.
Throughout the month-long trial, the jury was very attentive, clearly upset about the deaths, but tough to read on the bigger issues. Some of the evidence was hard to hear. Workers in tears about the deaths of their friends and coworkers, and angry that management hadn't done more to prevent it. The coroner using the manner of death of each victim to show the force and weight and direction of the explosion. Investigators describing the chaos and devastation. And every night I'd go back to my government-rate hotel room and wonder what the jury was thinking. White collar crime was still a stretch back then. Criminals were ruffians, not managers in suits and ties.
After the closing arguments and instructions from the judge, the jury went out to deliberate. It felt like forever, but I think it was four days. Finally, it became clear that they could not reach a unanimous verdict. What we heard was that they were unanimous in agreeing that the two managers had done wrong, but three of them could not make the next step to call them criminals. So the jury was deadlocked, 9-3, for conviction. Judge Gibson had to call a mistrial.
There it was. All that hard work and a month of trial, and all we got was a hung jury. Winning is the goal of every trial, and by that measure, I had failed. Dejected, I wandered around the courthouse, spent some time in a local bar I'd come to like, packed up my stuff and headed back to my office in Washington, D.C. It was not an easy time.
But then a remarkable thing started to happen. When a jury is deadlocked and the judge declares a mistrial, the government in a criminal case has the option to retry the case. To make that tough decision, two main questions are usually at the forefront.
- What could we do differently or better in a second trial, that might lead to a different result?
- What would be the purpose of a retrial? What would we accomplish?
Sometimes the answers are clear and easy. For example:
Question 1: Well, Witness X screwed up badly. If we retry the case without him using other witnesses instead, it would be much better.
Question 2: This is a serious violent criminal. We cannot let him get away with it. We have no choice.
The answers in the Farmers Export case were different. On the first question, it was very flattering to me. The consensus was that despite my complete inexperience, the evidence had largely come in as we wanted it. There were no glaring errors and no major strategy changes that might lead to a different result next time. In short, there was no reason to believe that a retrial would go better, and it might even be tougher, since the defense now knew our case and had a better idea of how to defend it. All this nice to hear, but it was on the second questions that things turned in an extraordinary way.
From all kinds of sources, our OSHA investigator, Don Donnelly, other OSHA folks, people in the grain industry, from all sources, we were told, hung jury or not, our message had been heard. No one saw a month-long criminal trial and a 9-3 vote for conviction as vindication for those two executives. They saw it as a clear shot across the bow to the industry, essentially telling them, "Clean up your act!" While I was bemoaning my "loss," others were seeing it very differently. It took me a while to really understand that.
In the end, the U.S. Department of Justice, with OSHA's agreement, decided not to retry the case. There was no reason to believe that a second trial would go better, and more importantly, to the extent that part of our purpose was to send a message to be a force for change, we had "won." OSHA told us that grain elevators around the country started to change their practices, to change their attitudes as well, and be a whole lot more responsive when OSHA walked in the door. I don't keep the statistics, so don't sue me if there's an outlier somewhere, but I was told that after 54 workers died in two explosions in five days that terrible December, there was not another multiple-death explosion in a grain elevator for at least 10 years. Ten years!
Win or lose, succeed or fail. In every case, we need to think about what do those words mean to us? What are we looking to accomplish? Sometimes the definitions are easy, but don't be too fast to judge. All I know is that the Farmer's Export trial, one of my biggest failures, in the sense of not winning, will always be one of my proudest victories. Lessons learned.