Trial Magazine

RICH: Russ, you’ve taken on some of the hardest cases in the country—cases that other attorneys turned away because they seemed insurmountable. Why did you take those cases?

RUSS: You take the hard case sometimes. It’s got to be taken, and it’s the right thing to do. It’s why we went after Big Tobacco. Fifty years of nonsense, of lost trials, of judges ruling on summary judgment in advance of discovery.

I always wanted the hard cases. I took what became known as the “honeymoon death trap” case. My clients were newlyweds who decided to honeymoon in New Orleans at the Howard Johnson Hotel in 1973. Howard Johnson was known as a family hotel, however, it had deplorable security. Sniper Mark Essex was specifically trained to go to the hotel and conduct a terror campaign, invading the hotel and killing people.

Nobody said we could win. I was just a young lawyer. When I talked to my dad and my uncle—both experienced attorneys—about the case, my uncle said, “Don’t take that case. Nobody can win that case.” My dad said, “Son, you think you can win the case? Go for it. Look, if you win it, it launches another career for you. If you lose it, everybody will say, ‘Well, he tried. Nobody could win.’”

Once we had a positive jury verdict on liability and damages against a major hotel chain, other chains took notice. Hotel security became a primary effort within the industry. At the time of the case, hotel keys were mainly made of metal and could be stolen or reproduced and sold on the underground market to criminals. As a result of the case, and cases that followed, plastic key cards with sensors became standard.

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‘It’s not the personal success. It’s the client and the good changes that come from the case.’

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After the win, so much about the hotel industry seminally changed from that case. It’s not the personal success. It’s the client and the good changes that come from the case. It’s always the client. When we lose sight of our clients, we’re the blind men and the blind women wandering around in the justice system.

RICH: You’ve litigated against some of the largest corporations in the country—from pharma to tobacco companies. What’s the most critical part of these cases?

RUSS: In each case, the discovery is where it’s at. You’ve got to press discovery and press it and press it. Remember that the defendants are going to produce the useless documents first. Try not to get into the track where they want you to agree in advance to serial production on a limited number of subjects. Target the most important issues in the case. Go after that production first. Don’t be oppressive. Don’t alienate the judge. But narrow your target to look for the underbelly of liability of the corporation.

You have to be very aggressive. In an explosion case that killed and maimed more than 20 workers, we found documents taped to the bottom of metal cabinets and boxes. And during discovery in the Big Tobacco case, we found evidence that had not been disclosed in more than 15 years. After a successful trial against Big Tobacco and after judgments became final, I shipped all the discovery and transcripts of arguments we made in our trial around the country to other lawyers handling similar cases.

RICH: What’s one strategy that’s particularly helpful to prove negligence?

RUSS: It can be a great help to reconstruct the place where the incident occurred. For example, in the explosion case I mentioned, we reconstructed a 3D model of the actual plant for the legal team.

What do I mean by that? First, learn the plant inside out. Ask for every single record, including all the blueprints. Put a team together to build a model of the plant from the bottom up. You have to start with the foundation. After you build the physical plant, every operation of the plant has to be inserted. Because then you’re going to mark where certain actions of negligence or intentional misconduct occurred on the model. That’s particularly helpful if there are multiple injuries.

To show how the explosion occurred on the 3D model of the plant, I used a shoebox to indicate the head house and 12 cylindrical cardboard rolls to show 12 silos. Then I mapped the actions that caused the explosion on the model. We used different colors to show the places in the plant where negligence occurred and inserted where each innocent claimant was at the time of the incident. It’s a very difficult thing and time-consuming, but very helpful.

RICH: What about strategies when it comes to holding Big Pharma accountable?

RUSS: In discovery, don’t start at the top. Begin from the bottom—depose the pharmaceutical representatives who go into physicians’ offices. You need all their training records. They are not trained with the truth—they are trained to avoid the truth.

What we’ve seen in pharmaceuticals is, 40 or 50 years ago, excellent doctors and scientists were removed from the decision-making process. We’ve seen corporations become sales-management dominated and top management paid a bonus on percentage of profits, so there’s less supervision of the science and deficient reporting to the FDA. The FDA itself has become a revolving door for corporate pharmaceutical employees.

RICH: What are the biggest “access to justice” issues facing plaintiffs and plaintiff attorneys today?

RUSS: Tort “reform” has taken its toll—not just in the federal system but, particularly, in various states. The biggest obstacle has been limitations on damages, which means that the greater the hurt, the less compensation, because of the limitation on dollars that can be awarded. And often, the older you get, the less economic damages you are entitled to. It’s really a systematic fraud because as people get older, the time that they have left is so much more precious, so it should be accounted for. In Louisiana, we’ve got limitations for just about everything.

At the federal level, what you’ll find is how few Supreme Court justices have experience representing people in their work as lawyers. And not all have tried cases. So, not only do they have preconceived ideas and ideologies, some have no experience. That’s a number one “access to justice” problem. In my view, it’s an infection.

I also think tort “reform” has damaged the perception of trial lawyers because we’ve become the scapegoats. Every time casualty insurance companies want to complain about why the rates are going up, they blame the trial lawyers, which is unreasonable and not founded in fact.

I believe you can overcome some of the obstacles with an organization as strong as AAJ and the trial lawyers associations in the states. AAJ has made enormous progress in the area of forced arbitration, another access to justice issue. Forced arbitration interferes with an individual’s right to have a jury trial. It favors no one but the opposition, who have extensive funds.

RICH: Speaking of AAJ, you have a long history with the association, including serving as its president from 1989 to 1990 and serving on numerous committees throughout the years. What do you think about the strides the association has made?

RUSS: In 1989, the first priority for myself and my fellow officers was to take down the ingrown toenail of the good ol’ boys’ control of education and politics. We insisted that women and minorities be included on every program as speakers, facilitators, and planners. Nothing makes me happier than that.

We’ve now had 10 brilliant women presidents. Rich, you broke a barrier by becoming the first Black president, and Roxanne Barton Conlin broke a barrier by being the first woman. It wasn’t easy. It’s taken over a quarter of a century to get here, but we are much stronger because of it.

Another thing I feel strongly about when it comes to AAJ is supporting the association. AAJ and its CEO, Linda Lipsen, are and will be responsible for the preservation of the right to trial by jury and access to the courts. Don’t ever forget what AAJ staff has done. I’m often approached by lawyers who want advice for their clients’ cases. I will not give advice to any trial lawyer who doesn’t make a fair contribution to AAJ and their state trial lawyers association. We must give back. If we don’t give back, then there’s nothing for Linda and her staff to work with.

Support AAJ however you can, whether it’s through your membership, recruitment of new members, joining AAJ Leaders Forum, contributing to the AAJ Evergreen Fund, or through other means. It protects our clients, it protects our practices, and it ensures access to justice.

RICH: I’ve known you a long time, and I know you find great satisfaction from practicing law and helping people. Why is that? 

RUSS: Well, you learn. Every day, you learn. And so, you have a metamorphosis, really, from courtroom one to courtroom two, but courtroom three is like a full symphony. It’s everything that I’ve learned.

My dad always taught me: give back, give back, give back—you give that back. And when your brothers and sisters get a verdict, cheer them on.

I love the individual cases and the class actions, because they are righteous. Heck, I always wanted to be Robin Hood. I want to help the underdog. The joy of a trial where you recover damages for your injured client and hold wrongdoers accountable—there’s nothing that compares to it, absolutely nothing. And if you always focus on the client and work for change, you’ll become a hell of a lawyer.

We were able to recover a significant amount in the Propulsid class action, which was approved in the Eastern District of Louisiana. That money went to rebuild medical clinics in areas of New Orleans that had been destroyed by Hurricane Katrina. Never lose sight of the clients and the injured folks.

My fellow trial lawyers also give me great joy. I find that trial lawyers have a lot of love. They’re the best friends I’ve ever made in life. I think what trial lawyers do is glorious. We challenge others when they’re abusive or wrong. We take the cases no one would.

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Russ M. Herman is of counsel at Herman, Katz, Gisleson & Cain in New Orleans and can be reached at rherman@hkgclaw.com. Richard D. Hailey is a founder of Ramey & Hailey in Indianapolis and can be reached at rich@rameyandhaileylaw.com.

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10 Tips From Russ on Voir Dire

1. Don’t ignore any prospective juror—even if you get a bad vibe.

2. If the court allows you to conduct voir dire by facing the prospective jurors, stand in front of the jury box, approximately three feet from the rail. Move horizontally, left to right, and make eye contact with each juror. Lower your voice, and they will often lean forward. At that point, you should raise your voice and go closer, to connect further with the jurors.

3. Always ask open-ended questions. Don’t lecture. Don’t try to persuade, but ask questions.

4. My favorite question is, “Would you please share [such and such] with us?” Follow up with, “Are you willing to share with us why you feel that way?” A bad question is, “Don’t you believe that . . . ?”

5. When you find a juror who is very in sync with you and you have a rapport, that juror is going to be objected to at some point. So, use that juror to educate the other prospective jurors.

6. When the juror you have rapport with says something very positive after you’ve asked them to share, ask other jurors to raise their hands if they agree with that juror. Look for the hesitancy. There are clues—study body language and facial expressions.

7. Never, ever reprimand or disagree with prospective jurors.

8. Make sure you manage your peremptory challenges. It’s very important. Always try to keep one in reserve.

9. Empower the jury at the beginning of voir dire and throughout the trial. Say something like, “You are the power of democracy. Only you are the deciders in this trial. Not lawyers, like me, or the other counsel.”

10. Use humor, but only self-deprecating humor. Learn to laugh at yourself, and the judge and the jury will laugh with you.