INTRODUCTION
By: Lindsey Nelson
I had the privilege to collect the following “war stories” for Pro Te: Solutio. Our goal was to demonstrate the wide range of litigation experience we have at Butler Snow, but as I heard these stories, I found them to be so much more than that. They are illustrations of creativity, grit, teamwork and a healthy sense of humor – essentials to being a Butler Snow trial lawyer. I hope you enjoy reading these as much as I enjoyed collecting them.
LESSON LEARNED
By: Andrew Tharp
Andrew is a member of the firm’s Pharmaceutical, Medical Device & Healthcare Group and located in Nashville, TN. He joined Butler Snow in 2015.
As an Air Force JAG military defense counsel, I represented a military member who worked in the medical field on an Air Force base. During a rough time in his life, he began stealing, consuming and abusing prescription narcotics from a controlled drug dispenser located in the hospital on the base. This did not occur just once. He stole medication on hundreds of occasions. Soon after, he was tasked to deploy overseas, where he continued to steal and abuse medications until he was ultimately caught, court-martialed and imprisoned for a lengthy period of time. Upon his release from prison, the government uncovered his previous misconduct at the Air Force Base and sent him back to the base to face a second court-martial for the additional crimes. I was assigned to represent him. I was his sole defense lawyer – litigating the case against two prosecutors, one of whom outranked me and had more than 75 trials under his belt. Not only that, but I would be defending the service member against the backdrop of a military seemingly eager to impose harsh punishment.
As expected, he was found guilty of all charges, but the litigation was far from over. In the military justice system, the jury considers sentencing evidence and a sentencing argument from each party; then, the jury imposes the sentence. The lead prosecutor argued to put my client in prison for 10 years.
For my argument, I decided to tell a story. I told a story about a young man who I knew growing up. His name was Ryan (names were altered to protect identities). Generally speaking, Ryan was a good kid. He played sports, did well in school, and was a loving and respected friend, sibling and son. During his early teenage years, Ryan had a lapse in judgment and was caught stealing candy from a local grocery store. His father, Jeff, was a strict disciplinarian. When Jeff heard the news about what Ryan had done, he imposed firm punishment. He made Ryan pay for what he had stolen, and he grounded Ryan for months, taking away virtually all of his privileges. After Ryan served his punishment, Jeff uncovered that his son had previously stolen candy from the store on other occasions.
Then, I posed a question to the jury: what does a reasonable father do? Does he punish his son all over again in the same way, or instead, does he make his son repay the store owner for the additional cost of the stolen merchandise, and then reprimand his son, emphasizing that he trusts his son has learned his lesson? In dealing with Ryan, Jeff took the latter approach, and it worked. Ryan paid for what he had taken, and he never got into any trouble again. I argued that, like Ryan, my client had learned his lesson. He did not need another lengthy prison sentence to punish him or correct his behavior. Instead, he should pay a monetary fine to compensate the government for the cost of the stolen medication.
When dealing with striking misconduct, “he has learned his lesson” is often a difficult defense. This story allowed me to help the jury correlate an unfamiliar set of circumstances to a more familiar one. It was crucial to find a way to connect the jurors to my client, so they did not see him as an unrelatable outlaw, but rather as someone who engaged in wrongdoing and needed to be reasonably disciplined. I needed to help the jury exhale, detach from their inevitable anger toward my client, and to hold themselves responsible for making a reasonable and measured decision. The best way I could fathom to do that was to tell a story that placed them in the same position of authority, but where the situation was more relatable, and where their decision impacted a loved one. The strategy worked – the jury imposed a sentence of minimal jail time and fined my client to repay the cost of the stolen medication.
BEHIND THE SCENES: WHEN CIVIL SERVANTS MISBEHAVE
A story told by Burt Snell & written by Lindsey Nelson
Burt is a member of the firm’s Pharmaceutical, Medical Device & Healthcare Group and located in Ambler, PA. He joined Butler Snow in 2012.
Legendary basketball coach John Wooden once said, “It’s the little details that are vital. Little things make big things happen.” For Burt Snell, it was one little detail in one document in the production of thousands that led to big things happening for his client – a voluntary dismissal in a case in which the “deck was stacked.” The plaintiff in Burt’s case was a beloved civil servant and pillar of the community, and the community’s affection was deemed one of the most challenging hurdles.
Among the thousands of documents produced by plaintiff, Burt found one document that mentioned possible “discipline.” Burt decided to pull at the thread. He requested all the documents regarding the incident and followed up with witness interviews, garnering alarming but consistent information about this plaintiff. He found that this beloved community member was not quite so pious as he appeared to be. As it turned out, the “incident” involved the plaintiff engaging in multiple extramarital affairs on city-owned property. But how to use this information?
This is where Burt’s keen sense of strategy came into play. He used this information to depose the witnesses in a particular order and at certain times of the day. A minor detail, but Burt’s strategy created the perfect storm … a waiting room where the sequenced witnesses would see each other and have time to consider their interactions with the plaintiff. Burt’s decisions about the timing of the depositions allowed him to gain valuable information in his arsenal. While the witnesses faced each other in the waiting room, they realized they were pawns in the plaintiff’s extracurricular activities. As such, they were honest about their sexual encounters with the plaintiff in their depositions, leading to perjury by the plaintiff, which destroyed not only the plaintiff’s credibility but also the pending loss of consortium claim. The plaintiff voluntarily dismissed the case.
But it was not just the perjury that led to the dismissal – it was Burt’s ability to think outside the box, fearless follow-up, eye for detail, and strategic skills. As Burt told me, “there is opportunity in each stage of the litigation,” and to end with another quote by Coach Wooden – “nothing will work unless you do.”
THE SURVEILLANCE SLIP
By: Leah Ledford
Leah is a member of the firm’s Pharmaceutical, Medical Device & Healthcare Group and is located in Ridgeland, MS. She joined Butler Snow in 2022.
I worked up a case for a slip and fall allegedly caused by a dangerous condition. The plaintiff claimed back and knee injuries, but none were significant. This particular client, however, preferred to avoid trying cases because of the media exposure. Still, we ultimately convinced the client that this was one we needed to try – we had solid defenses and didn’t think the plaintiff would present well to the jury.
The plaintiff attended the pre-trial conference and, for the first time, was using the assistance of a cane to walk. She had not used a cane at her deposition, nor was there any reference in the medical records to needing assistance. Although we were past the discovery deadline and relatively close to our trial date, we decided to have surveillance conducted. It took several tries, but our investigator finally videoed her walking out to her mailbox. Her gait was normal – she was walking without assistance, and she even dropped some of the mail, bent down, and retrieved it without any issues whatsoever.
We determined we were not obligated to produce the surveillance in order to use it for impeachment at trial. Nevertheless, our team decided it was better strategically to produce it because it would either put plaintiff on the defensive at trial, or at least keep her honest. Needless to say, it kept her honest. She attended trial walking normally – and walked out empty-handed after a defense verdict.
SUPER FLUSH: NOT JUST A STORY ABOUT SUPER SOAP
By: Anita Modak-Truran
Anita is a member of the firm’s Pharmaceutical, Medical Device & Healthcare Group and located in Nashville, TN. She joined Butler Snow in 1998.
On the coastal shores of Mississippi, far away from the bright lights of glitzy litigation, an epic battle was fought over a solvent called “Super Flush.” A Canadian automotive specialty manufacturer and distributor filed a lawsuit against our client, a family-owned chemical manufacturer, seeking to clean them out of tens of millions of dollars.
Although there were lots of legal theories thrown around the hallowed halls of the federal courthouse in Gulfport, the claims boiled down to “O-rings.” O-rings, which are round elastic loops serving as a seal between structures, may seem inconsequential, but a malfunction of an O-ring can lead to devastating consequences, like the Space Shuttle Challenger disaster.
The first thing my trial partner Mark Dreher and I did was to hire one of the experts who investigated the malfunctioning O-ring of the Challenger. Dr. O-Rings (not his real name) worked in White Sands, New Mexico and had an impressive array of clients, like NASA for instance. He took our case on one condition: we would provide an opportunity for his engineering mentee who had never testified in Court before.
Mr. Young Engineer (not his real name) ran all the tests of our solvent and the Plaintiff’s machine. This machine was designed to clean out automotive air conditioning systems using a flushing solvent. While our testing did show that Super Flush chewed up and spit out O-rings like the one in the Plaintiff’s machine, the Plaintiff had failed to perform any compatibility testing before going to market. Our summary judgment motion – distilled to the withering legal maxim “Where’s the beef?” – was ultimately denied. We were headed to trial.
And then the antics began. One of Mark’s chief responsibilities was as “keeper of the Allen wrench,” to unscrew the faceplate of the exemplar machine. After a successful demonstration during openings, Mark promptly forgot the wrench for Day Two’s cross-examination. We were rescued by our client, who produced an eight-inch bowie knife at counsel table – from his boot (take that, federal marshals!) – to use as a de facto screwdriver.
Next, I may or may not have confused the jury when I began my cross examination of Plaintiff’s engineering expert with something to the effect of “Last time I saw you was in a hotel in Cincinnati…” It was at his deposition. Get your mind out of the gutter.
But the Plaintiff’s case was not done. Their star witness was the company’s CEO. Unfortunately for him, we had videoed his discovery deposition, complete with half-buttoned, butterfly-collared, lavender disco shirt. The trial impeachment with this video, complete with glorious gold chains and chest hair, apparently traumatized the poor fellow. He became violently ill, yakking into a waste can deftly introduced by the court reporter before literally fleeing the stand. Truth can be stranger than fiction.
At last, it was our case. Mark’s clear – and yet somehow still insufficient – instruction to Mr. Young Engineer was to wear a coat and tie for his first appearance in court. When he appeared that morning in a garish green and purple ensemble, the Joker comparisons were unavoidable. Nonetheless, Mark had him step down from the witness chair and demonstrate the machine to the jury, Allen wrench in tow. Mr. Young Engineer was a triumph.
After the jury entered a unanimous verdict in our favor, Mark raced home in time for his wife’s ultrasound. Their son, Walker, is now in high school. These are cherished memories that make practicing law worthwhile.
Finis
