McKool Smith has collaborated with Benchmark Litigation to produce the “Behind the Trial” podcast.
The series is hosted by Courtland Reichman, managing principal of McKool Smith’s Silicon Valley and Los Angeles offices, and features conversations with some of the US’s most iconic trial lawyers.
The first episode features Evan Chesler, chairman of Cravath Swaine & Moore. Chesler shares his insight on the keys of persuasion, common traits of an effective trial lawyer, and the significance of the “people factor,” among other topics.
Future episodes will feature interviews with David Boies (Boies Schiller); Elkan Abramowitz (Morvillo Abramowitz); Gary Naftalis (Kramer Levin); Diane Sullivan (Weil Gotshal); US District Judge William Alsup (Northern District of California); and Mike McKool (McKool Smith).
The art of persuasion
The podcast is pitched at a wide audience: it is aimed at practicing trial lawyers, lawyers in general, law schools, as well as the public at large.Reichman tells Managing IP there is a big education gap around jury trials. He says it is much more than “the nuts and bolts” of how to get evidence in or how to do a cross examination.
“When I look what really moves the needle in the trial practice, 50% of it is the actual information that you are conveying but the other 50% is real persuasion about how to get people to listen, how to open them up, and how to create a narrative, which is so important,” Reichman says. “But when you look out across the academic literature – certainly in law school and even after law school – there is very little treatment of the subject outside of psychologists. Historically, you learn the trial job, the real stuff, the high level stuff, on the job from whoever you are working with or you pick it up from others in the practice. It is very much an oral tradition.”
This oral tradition lends itself well to the podcast format. The hope is the Behind the Trial series will serve as a lasting document of the unique voice and style of the nation’s trial stars as they discuss what goes on behind the scenes, and give a rare look at the secrets of persuasion unique to trial lawyers. The podcast covers their best practices for presenting to a jury or judge, pitfalls to avoid, and the art of persuasion. The series also underscores the role that trial lawyers and juries play in shaping the legal landscape and society.
As a trial lawyer talking one-on-one with other trial lawyers, Reichman says he was able to have deeper conversations than would be had by a journalist or in a conference setting, where often Reichman says people are reticent to talk in detail.
“This is the deeper concept of the podcast – to really get in and underneath these high level statements and chest-thumping platitudes and find out what is the real stuff,” he says. For example, he was able to get the interviewees to open up about how they overcome nerves, including one revealing he says a prayer before trial even after 40 years of doing them.
“We had this instinct that his could be a great educational tool, a great way to open up the doors a little bit to the mystique of trial lawyers,” Reichman says. “All of us, every single trial lawyer who makes it anywhere in the profession, we all got that information from the people we worked with as we were coming up. Sitting in their office or at an airport or after a trial chatting about: why did you try this? How did that work? Tell me more about that. And you get the unexpurgated thoughts about how things worked.
"Historically, you learn the trial job, the real stuff, the high level stuff, on the job from whoever you are working with or you pick it up from others in the practice. It is very much an oral tradition"
“That also lent itself to this format. I’m a trial lawyer and I’ve been doing this for 25 years. Because it is just us sitting in a conference room, when it is at its best it turns into this very, very intimate conversation between the two of us about why jury trials are important, how you do them, and what is the real stuff of persuasion.”
The interviewees all have different approaches to trial, such as whether they go to bed early or late on the eve of trial. But Reichman notes one constant among the best trial lawyers – “preparation, preparation, preparation”.
Another is deep respect for and confidence in the jury process.
“There is this really powerful societal perspective,” he says. “You talk to trial lawyers, and to a person they will tell you that the jury system is central, frankly, to democracy. There is something very powerful in having a regular jury decide things in terms of credibility and public confidence. It is not elites deciding things – it is regular folks deciding right and wrong. It is a very populist, democratic idea. Everybody we interviewed, from judges to the lawyers, will tell you that they have high confidence in the jury results.”
He continues: “When you sit outside of it, you think what in the world could 12 people with an eighth grade education possibly bring to the table in terms of patent law or securities or a complex criminal case. But every judge and every experienced trial lawyer will tell you that, while it is not a perfect process, it is by far and away the best process you could possibly have and that they almost always get it right. Right does not necessarily mean that they know the technical reason as well as the expert does. But in terms of figuring out right and wrong, good and bad, who is on the right side of the question, they almost always get it right. And in those rare cases where they completely ignore the law, there is always the appellate court.”
Behind the Trial is available on iTunes, SoundCloud, Libsyn, and most popular podcast apps. You can also find it by visiting benchmarklitigation.com or mckoolsmith.com.
Benchmark Litigation and Managing IP are both part of the Legal Media Group in Euromoney Institutional Investor.