What Makes A Great Trial Lawyer with Ben Gideon

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Matt Dolman:

Welcome to another episode of the David and Goliath podcast. I'm Matt Dolman with my partner in crime, Stan Gipe. Stan.

Stan Gipe:

Hey, good to be here again. And today it looks like we've got Ben Gideon on as a special guest.

Matt Dolman:

So Ben Gideon is just by way of introduction and Ben could probably tell a story better than I can, but he's a member of the Inner Circle of Advocates. So what the Inner Circle of Advocates is the top trial lawyers in the nation. This isn't like super lawyers or we have down here in Florida, Legal Elite, where your friends and other lawyers can vote for you. And frankly it's a bullshit award. This is the preeminent organization in the country for the top trial lawyers. I mean you got Brian Panish, you got Jason Itkin, you have the top guys who are getting the biggest verdicts in the country and Ben Gideon is considered the preeminent lawyer in the state of Maine.

He's had, correct me if I'm wrong here, but I think he's got 50 either verdicts or settlements over a million dollars, many multimillion dollar verdicts, graduate of Yale Law School. And here's where I'm going to start this conversation. This is where it shocks you if you get to Ben's background. Ben almost got thrown out of undergrad. He was on academic probation when he was trying to play hockey at Cornell, which is dear to me. I went to Ithaca College, same beautiful college town. How do you go from being on academic probation then graduated from Yale Law School and being one of the top trial lawyers in the entire United States? Just take us through that because it's not a normal trajectory.

Ben Gideon:

Yeah. So when I was at Cornell I did, as you mentioned, I tried to walk onto the hockey team and Cornell had an exceptionally good team. We had multiple players in that era that played on the Canadian, the US Olympic teams and went on to play professional hockey. So I wasn't good enough to play there. And when I was cut and no longer able to play sports, I became really depressed about that. And I think I focused most of my attention on partying and drinking and finding ways to avoid going to class. So after my freshman year, I did. It was okay. Sophomore year or at the end of freshman year, I pledged a fraternity, moved into my fraternity house and became the social director of my fraternity, which involved planning parties and scheduling the delivery of the kegs, which I thought was amusing because I still wasn't 21.

So I went from the era of trying, in high school, to figure out creative ways to buy beer, to get alcohol as we did back then, to in college now the store would call me and ask me how many kegs that I needed delivered each weekend, even though I still was underage. But I devoted my energies to that. And I think I was an okay social chair in my fraternity, but I was a terrible student. So I ended up in my sophomore year, I had a 1.2 GPA. Yes, that's on a scale of zero to four. So it was not impressive. And the dean of students called me into his office. He was actually also a professor. I had him for American History. His name was Alt Schuler, he was dean Alt Schuler. And I remember going into his office and he sat me down in one of these brown leather chairs across from his desk and he was peering down kind of over me.

And I kind of had this sense that this was a conversation that he had to have regularly with students. And basically said, "Look, you're failing out of college and we're going to ask you to take a break. We're going to ask you to take a leave of absence from Cornell and think about it and you can petition if you want to come back to college here, but you're not going to be back next semester." And honestly that hit me really hard. First of all, making that... My parents had no idea about any of this. I'd always been a really strong student. So having to call my parents and tell them I failed out of college was not a great moment in my life. And you just have that moment where you just feel like, "Okay, you're at a turning point here. There's a fork in the road, you can take a left or you can take a right."

And fortunately for me, I was able to get my act together. I went home, I took courses over the summer at a local community college, did very well, was able to petition to get back into Cornell. So I didn't actually have to take the leave, they let me back in. When I got back to school, I moved out of the fraternity house and from that moment on really got pretty much straight A's in college. But I like to think back on that moment because I think as trial lawyers, we have a lot of moments where we have low moments. Certainly our clients go through, they're all going through low moments.

And there's that time where you just need to reach deep within and do some soul searching and try to get yourself back on track. And that's what we do in our cases. We try to give our clients the opportunity to get their lives back on track. So it's probably a minor struggle compared to the struggles that most people have in the world and in life. I was a privileged kid at a privileged Ivy League University. No one's going to cry over my problems there, but it was just a moment in my life.

Matt Dolman:

Sure. But all you know is what you know. All you know is your situation and yeah. You were humbled.

Ben Gideon:

So there, going forward from that, I felt like I was on that road for rehabilitation for a number of years because when I graduated from Cornell I think I had a 3.3 GPA, which is no small feat when you've had a 1.2 for a year. So I did well the rest of my college, but it still wasn't really competitive for any of the top law schools. I did reasonably well in the LSATs and got into Boston University and went there for my 1L year.

Matt Dolman:

Which by the way is a top 50 law school. But that's no slouch itself.

Ben Gideon:

Yeah, it's a good law school. And I really enjoyed BU. I had a great experience there, had a lot of close friends, great professors, and I stay in touch with a lot of my peers, my colleagues from BU. But after my first year I did really well and was able to transfer to Yale Law School where I went for my 2L and 3L year and graduated. And interesting. My father also is a Yale Law Grad. My father is a very academic, very intellectual, sort of nerdy guy who always did really well throughout his college. And I always sort of joke around with my dad that I ended up in the same place that he did despite the errors of my ways earlier in life.

Matt Dolman:

Did he know how bad you did in the very beginning?

Ben Gideon:

Oh, yeah. When I failed out, I had to notify my folks of that because I was not going back to school. At least I didn't think I was. So my plan was to move back home.

Matt Dolman:

Understood. I didn't know if you went to Hopkins County Community College up in Ithaca or just kept that secret.

Ben Gideon:

No, I did. I went back to Maine for that summer. Although I did actually spend many of my summers after that in Ithaca and I loved the summers in Ithaca. So I know you went to Ithaca College.

Matt Dolman:

Yeah.

Ben Gideon:

We share that in common.

Matt Dolman:

Beautiful town. That's probably the best college town in America in my opinion. I haven't been to that many but I've been to Wisconsin, Madison, I've been to.. You name a school. I've been to Dartmouth, I've hung out there. Hung out with friends who went to Brown. Ithaca's just a beautiful town. Really in the Finger Lakes region in New York, it's gorgeous.

Ben Gideon:

Yeah, it really is.

Matt Dolman:

As they're saying, Ithaca is gorgeous because of all the gorges up there.

Ben Gideon:

No, absolutely. It's a beautiful spot. I was just talking to somebody about it yesterday how Ithaca just also seems to be a little bit timeless when you go back there. You still have that hippie element. It's sort of permanently stuck in the sixties. But I enjoyed that part of it and really enjoyed my time there after I managed to get back into school.

Matt Dolman:

So tell us about some of the cases you're working on right now. You just came off of a big trial?

Ben Gideon:

Yeah, we just had a case of... I think went to verdict about two and a half, three weeks ago. It was a case where there was that $7,500 offer pretrial. We ended up getting a five and a half million dollar verdict. So in terms of the value proposition of increasing our value, we did pretty well there.

Matt Dolman:

What type of case?

Ben Gideon:

It was actually a really weird case. It was one where when my partner took in the case and we ended up with a bunch of similar cases. Actually I was very dubious of them. What happened was there was a local funeral service business in our state that was offering cremation services and they were taking in decedents and not cremating them. They were leaving them in the basement and the bodies were rotting. And that continued over days, weeks, and in some cases months before it really came to light.

And the state finally came in and shut them down and then transferred the bodies out and notified all of the family members that their loved ones had not in fact been cremated. And what's interesting about the case is as you may or may not remember from tort law, I certainly hadn't. But there's a kind of famous case that actually comes out of the state of Maine called Gamin V. Osteopathic Hospital. And it's kind of memorable because it's the case where they mail the persons severed limb to them in the mail and the family member opens it up and sees their loved one's limb. And the question in that case, the reason it's a first year law student case is because the issue was can you get emotional distress damages where the plaintiff has no physical injury and they were not in the zone of danger. So we think of bystander claims where you're the passenger in a vehicle maybe and the driver gets badly injured, you're in the zone of danger.

Even if you're not hurt yourself, you can bring a claim for your close relative who is hurt. Right? But in these cases, like the ones we had, our clients were not present at the funeral home. None of them actually even personally observed the state of decomposition of any of their loved ones. So they were not in the zone of danger so to speak. They had no physical harm or injury themselves. But what that case stands for, the proposition is there's certain things that are so likely to cause severe emotional distress that you don't need to prove physical injury to recover. And one of the categories is mishandling of human remains.

So we litigated our case on that theory with negligent and intentional infliction of emotional distress claims. Now our client in... So we had six of these cases and that case was the first one to go to trial. Our client had obviously no physical injuries but also no counseling or therapy and no time out of work. So there was no economic loss, no medical bill, no treating provider of any sort. So the defense really made the case more about, we know we did wrong here, but the damages should be limited or quite minimal given that scenario. So that was kind of the challenge in that case.

Matt Dolman:

Had you illustrate the damages from being speculative to concrete and getting a $5 million verdict?

Ben Gideon:

Yeah. So one of the interesting things about negligent and intentional infliction cases is that the reprehensibility of the conduct is closely tied to the severity of the emotional distress. Even the prima facie case, we have to prove, you have to prove that it's the type of conduct that would cause severe emotional distress and a per person of ordinary sensibility. So because the nature of the conduct is an element of the offense itself, we made the case to the court that we were entitled and should be allowed to put in all of the evidence of the misconduct. The defense tried to stipulate to liability as they often do in any case where they're obviously wrong. And we resisted that. We refused to accept their stipulation.

Then in the courtroom they filed something called a concession of liability, which I'm not even sure what legal force or effect that has, but they attempted that as kind of the strategy and in opening said, "We take responsibility." But because we were not allowing them to concede or stipulate we were allowed to put in the evidence of the defendant's conduct, which was absolutely egregious and reprehensible. The defendant, basically the director of the company for about five months, refused to come into the funeral home and to do the tasks required so that the bodies could be processed through to cremation.

And we had testimony of his assistant who was basically begging him to come in. Really all he had to do was sign the death certificates and sign the forms that would allow the cremation service to complete the process, but he wouldn't even do that. But at the same time that he refused to do that, he was instructing his staff to keep picking up bodies and telling them we needed the money so you need to keep going and getting the bodies. So the conduct was really absolutely egregious. And then the kind of visceral elements of what was going on inside that funeral home when the state arrived and there were I think 12 corpses in the basement and they described the level of decay and the odor that was so bad was you could smell it outside the building. We had an expert on funeral practices who talked about the stages of decomposition of a human body.

I mean it was grotesque. So between the visceral nature of the evidence combined with the reprehensibility of the conduct, I think it was a very compelling case. And then our client did a wonderful job of talking about how it affected her when she heard about what they had done to her dad. And one of the interesting things about emotional distress, I think, is that as trial lawyers, we often think of that as kind of an ancillary damages claim to our primary claim of physical harm or injury. So it's always sort of... Well, this person has a spinal cord injury and associated with that they have emotional distress because of their physical injury or because of the things they can no longer do as a consequence of their physical injury. But because our case had no physical injuries, we were forced to grapple with how do you present a case in a compelling way purely for emotional distress.

And I think that was really helpful to me in thinking about that as an element of damages generally. And I think we often as trial lawyers really undervalue the emotional distress. If you think about it, emotional issues, whether it's depression or anxiety or disassociation or withdrawal or mental anguish. I don't know if you've had experience with that in your own personal life or your family's life or if people you know, but I have. And I can tell you, I think anybody who's had that experience, and I bet everybody on the jury's had somebody either themselves or knows somebody, it's absolutely devastating because it affects every element of your life. Right? And unlike a broken arm or a broken leg which is going to heal at a predictable rate, a broken heart may never heal and there's no silver bullet you can take or medicine that will cure that and it can affect everything you do.

And our client did a good job of explaining how it did. She was a preschool teacher who loved her job, but after this she became so fixated on it, she left. She felt like she couldn't be present with her kids and she left the job she loved and took on a new job as a nanny. Now she didn't have any lost earnings, but she gave up something she loved and she talked about nightmares and how she can't think of her dad anymore without that memory being marred by the images she has of what he went through and the guilt and shame she feels about being complicit in that. So we did a lot of things.

We had a great expert too, a psychiatrist from Columbia who's actually an expert in what's called prolonged grief. And he studied that by doing long term studies of victims and the family members of 9/11 victims and how the way in which their loved ones died and perished in 9/11 never leaves them and they are never able to think about that person without that connection to the day of 9/11 and what happened. So I thought he did a really great job in explaining how this impacts somebody. And I do think that really helped us with the jury.

Matt Dolman:

No, physical injuries are so obvious, so apparent. Where a mental health issue, which obviously piggybacks off just you told the story of the woman who's ruminating over the issue and can't get off topic and can't focus on her children and her life, the diminution of your quality of life, those are probably the most difficult cases to try. To actually show and illustrate to a jury because that individual walks normal, talks normal, doesn't have any actual physical manifestation, no real physical injuries, but what's going on in their head. And how do you sell that to the jury?

Ben Gideon:

So one of the things I think we have to reflect on as trial lawyers is whether it's really true that people don't value that or whether that's just a mantra we've been fed and led to believe over years and been beaten down by bureaucrats and insurance people who espoused that. Because interestingly, one of my colleagues in the inner circle and good friends, Josh Kosoff, just finished the trial of the Alex Jones case and you're probably very familiar with that as are your listeners.

Matt Dolman:

Yeah, Kosoff is a great lawyer in Connecticut.

Ben Gideon:

Right. In that case, the jury awarded almost a billion dollars. What harm, what injury did any of the families of Sandy Hook and the parents suffer from Alex Jones' defamation and misleading statements about that event? They suffered purely emotional distress. They were not physically injured. Most of them didn't have any economic losses, they had purely emotional distress. So they got almost a billion dollars for purely emotional distress. Now a day or two ago I saw another verdict come down from another guy through the inner circle in his firm, Grant Davis. He had a case involving a woman who was sexually assaulted in a Hyatt Hotel and the sum total of the assault that they alleged was that a Hyatt Hotel security officer had gone into her room and apparently groped her while she was clothed and underneath her blankets or sheets. In that case, the jury awarded a total of, I believe, $28 million in compensatory and another large punitive verdict for a total of $177 million.

There was no physical injury, no economic loss. And there's another lawyer you've heard of probably, Rick Friedman, who just tried his fourth case against Monsanto involving PCB contamination in a school and he just got a $277 million verdict for teachers and people who worked within the school. And I think in most cases, none of his clients had any medical treatment. And he did have a neuropsych evaluation as I understand it forensically for presenting their brain injuries to the jury at trial, but they didn't have any... Their physical injuries were minimal to the point where they didn't have any medical treatment, most of them.

Matt Dolman:

Yeah, I just watched that trial by the way.

Ben Gideon:

Yeah, I think we need to adjust our thinking about this issue about whether emotional distress damages are real and whether juries would be willing to compensate for them. Because I just gave four examples where we're talking about, I mean my case is peanuts compared to these other ones. But I mean hundreds of millions, almost billions because jurors get it, they really do. It's not a hard sell. They understand how devastating emotional harm and injury is and honestly, would you rather go in with the reprehensible conduct and the emotional injury or the broken arm? Yeah, that's obvious. And you could see it on the x-ray, but that heals probably stronger than it was before you broke it and you go back and you're living your life again. Right?

Matt Dolman:

I sort of agree with you. The only thing, the caveat to that is you are among four of the top 20 lawyers in the country you just mentioned. So your average Joe going to try that case and explaining emotional distress might not be the same. Having said that though, yeah, I do agree with you. I don't think it's as scrutinized as it was. It doesn't have the same stigma it had 10, 20 years ago. I think obviously our culture's changed, but again, and you're underselling yourself here and I get it, you're modest. But you mentioned Rick Freeman as well. These are phenomenal trial lawyers trying very, I think, they're very difficult cases because it doesn't have the same effect. I know these are egregious stories, they don't have the same effect of showing the physical injury, which it's very easy connected dots there.

Stan Gipe:

Well, and I think a lot of it comes from the way the companies are handling the claims like Ben hit on where it's right. Unless you're willing to try the case and go to trial, they're not going to place any emotional damage value typically on a pre-settlement offer. It's the economics, the non economics don't get considered. And the reality of it is 98% of those people aren't going to try the case anyway. So even if the insurance company tells them to pound sand, we're not giving you any emotional damages, we're giving you just your hard economics, a lot of them go away. So that's just something we've got to deal with where while it may seem like a lot of jury verdicts are runaway verdicts or high verdicts these days, I think they are more likely realistic sort of representations of what the claims are worth if you're willing to push it that far. But it's the insurance companies, the way the claims are handled that the vast majority of them fall out before you get anyone to ever even look at that.

Matt Dolman:

I understand the insurance adjuster from their angle, they're putting the facts into a computer algorithm and whether it's Colossus or whatever the insurance company's using, that's hard for them to put a true value on a mental issue or an emotional distress issue. But why was the defense lawyer, knowing your skill set, knowing that you're coming to try this case a few weeks before trial, why aren't they putting a real number on the case? What was their argument when they offered, I think you said $7,500?

Ben Gideon:

I don't know. What's interesting is we have six of these cases and this was the first to go to trial and the defense picked the case they wanted to try first. So I think from their perspective, this was the weakest of our cases. I think it may be partially was probably the best evidence and document they had as part of their defense. And they made a big deal about it was when we sent our client to be evaluated by the forensic psychiatrist as step one of that process, he had her fill out some self-report forms and their standardized screening tools used for the DSM for major depression and anxiety disorder. When our client filled those forms out, it's like rate each category on a scale of one to four or something. She basically reported that she had little to no issue at all. The question might be, "Do you feel depressed?" Four being the worst and one being the least depressed.

And she put a one or a two, but really responding to each of the questions she put the least severe or the next closest least severe response possible. So I think they looked at that and said, "Look, I mean she's admitting that this hasn't really affected her, that it hasn't had much impact. This is her own report." Now what happened was our client, what we began to understand as we went forward with this case, and I should say in her deposition, she was likewise understating and very unwilling to share her feelings about things. You've all dealt with clients like this where they're just, their initial instinct is to just say, "I'm fine." Really because they don't want to talk about it. And then after the self report she then went, we had her meet with the psychiatrist for two separate approximately two hour sessions.

And during those sessions he started to drill down on some of these topics and it came out that when she said she was fine, she actually isn't fine at all. But that's the way she deals with things. And in fact, that's one of the common criteria for this type of condition is that you don't like to confront the awful memories or the painful feelings you have. So now at trial they made a big deal about that. They cross-examined our expert, they blew it up and put it on the screen. They argued it, they cross examined our client, they argued it in the closing. And the way we handled that was to... Because our client was on the stand for probably an hour in direct and she did a very good job. My associate, a younger female lawyer who spent a lot of time with our client and really got her well prepared to testify, did a fantastic job presenting her and her testimony was compelling, it was moving, it seemed authentic and genuine.

And in closing, what I said was they're arguing that you shouldn't accept the testimony, the psychiatrist, and they had a bunch of arguments about that and they're putting up these forms. I said, "Look, you can accept that's the psychiatrist's testimony if you want. He's an expert in this. He spent his entire career studying it. But then you can weigh that for what it is." But you don't need to do that. You're all experts yourselves in common human experience and emotional impact. And you heard directly from our client on the witness stand, you can judge for yourself." And keep in mind, she was on the stand for about an hour and think about how much you learned in that hour hearing from her directly. Our experts interviewed her for four hours. So yeah. She filled out some forms, but he spent four hours with her hearing all the things you've heard and more. So I think that went a long way to diffusing the impact of those forms. But I do think that was one reason that the pretrial offer was so low.

Matt Dolman:

Now you have four more of these?

Ben Gideon:

We have five more of them and we're trying to... So there's limits in coverage. So we're trying to get it all paid. If it's not paid, then I think we have a very good excess bad faith claim that we've set up now and we can just continue to try the cases and with hopefully an open policy go after whatever the values of the cases are unless they pay them.

Matt Dolman:

Sounds like akin to a Bellweather case and like a mass tort. You had the one trial, they got the sample to see what the jury's going to do with it. Now you got five more hanging out there and they realize how bad this can get if there's an open policy.

Ben Gideon:

Exactly. I think at this point my expectation is they're going to step up to the plate and tender the coverage that's available.

Matt Dolman:

Gotcha. I hope so. So you're licensed in Maine, Are you trying cases all over the country?

Ben Gideon:

Yeah, so mostly I tried cases in northern New England. So I've tried cases in Maine, New Hampshire, Vermont. I had a case that we were just about to try in Detroit and federal court, flew down there and was about to begin and we settled it right on the kind of courthouse steps. But for the most part I stick to northern New England, Massachusetts. I haven't tried a case in Mass, but we litigate some cases in Mass. We've got significant case going on there now. I'm willing to travel if needed, but I prefer to sleep in my own bed as many nights of the year as I can.

Stan Gipe:

Let me ask you, you got involved in one case that I kind of had some interest in years ago, just because that was one of the more perplexing news stories I looked at. Okay. And this was the L. Farrow, the maritime thing. I remember reading the stories going, "Okay, so this guy is a captain of a ship, he's going to ship off and he alters course to go directly into the eye of a hurricane and somehow expects that this isn't going to end badly." Now you represented some of the families, I think were like 33 people died during that disaster. I think it was everyone on board. You represented some of the families in that disaster, didn't you?

Ben Gideon:

We did. We had the first mate and we had a young kid who had actually just graduated from Maine Maritime Academy and was shipping out, this was his very first tour on his very first job after graduating from college. And interestingly in his case, he was late and almost missed the ship and was literally running up the gang plank and just barely got on board as the ship pulled out. Yeah. I mean it was obviously an incredibly sad situation. I think it's the first worst maritime disaster in the last 50 years in the United States. And everybody perished. Maine Maritime is kind of a prominent maritime school here, and it's a small, very close knit community on the coast in Maine. And a lot of the folks there had a connection to Maine Maritime. So it really hit home, even though they obviously shipped out of Florida, but really the captain was from Maine and our two clients and one other individual who we did not represent was from Maine.

So it was really devastating and kind of high profile here in Maine. The interesting aspects of that case from a legal standpoint were that for our two clients, they had no, they were young and they had no dependence. And so under the Jones Act and maritime law, generally there were fairly strict caps on what they could recover. They had no economic loss claims and the only claim that was unkept for them, and I believe the cap was 500,000 for that, for the death claim. The only uncapped portion of their claim was for pre-death conscious suffering, which when you have no survivors and no testimony about what any of them were individually doing during the timeline between when the ship got in trouble and when it perished, how do you meet your burden on that issue? And so that was something we worked, we gave a lot of thought to. Ultimately Tote Marine, the defendant in that case...

You become cynical in this business and you don't see corporations in particularly and certainly insurance companies doing the right thing very often. I think that's a rarity. But in this case, I believe they did do the right thing. And they came to Maine, the president and another high ranking member of the company personally came, we had a wonderful mediation session where they were contrite, they cried, their corporate representatives cried. They hugged it out with our clients. They expressed real remorse about what they did. And it was a beautiful event.

And they overpaid, in my view, based on what the law would have permitted us to recover. They paid a premium over and above that. Arguably substantially over and above that. And I believe at the end of the day, I could be wrong, but I believe they were able to resolve every case that was brought for all of the families and victims of that disaster. I don't know that for 100% certainty, but that's my best understanding of it. So it was a horrible tragedy, but I feel like it was a rare situation where the company really made an effort and did right by the victims.

Stan Gipe:

Yeah. That's an outlier. Ever get any kind of explanation for when into that decision making process, when they decided they were going to just sail into the hurricane as opposed to wait at port or go around it or anything else?

Ben Gideon:

I don't believe there's been a satisfactory explanation for that. There's a lot of developments that occurred after the conclusion of our work on the case, and quite honestly, I did not really keep up on them and I don't think I'd be an authority today because there's been so many investigations. There's been whole books written on it, lengthy television features on it. So I honestly can't really tell you what the best knowledge is of that today with the benefit of all of the investigations and reports that have come out. There were a lot of questions about whether the weather reports they were receiving were accurate and why they weren't. And I think as my understanding of it was that the plan was to... That they believed that the trajectory would allow them to get ahead of the storm and to avoid being in the thrust of that. That's why the captain did what he did. But my knowledge is dated on that and I wouldn't take it to the bank at this point.

Stan Gipe:

All right. One thing I wanted to ask a little about I saw in an outline here is you've got your own podcast. It's Elawvate?

Ben Gideon:

Yeah. We call it Elevate, but it's spelled with L-A-W for the word law in it. And yeah. My co-host, Rahul Ravipudi, who's a wonderful lawyer by the way out in Los Angeles. He gets the credit or the blame, however you want to say it for the name. So it's kind of catchy and cute, but it's...

Stan Gipe:

It's catchy. But it looks like you focus a lot on what drives successful lawyers and law firms, those human factors sort of common things. What are some of those things you see that tend to drive the successful firms and lawyers and set them apart from others?

Ben Gideon:

Yeah, it's a great question. That's kind of the question that has always interested me the most about what we do. There's all the kind of techniques of the practice, but I'm less interested in that than I am the human side of it. And I think any of us who've done this for a while recognize at the end of the day, that seems to be what makes the difference is the people less than the particular checklist of skills. And the answer to that is I think that we've interviewed a lot of really successful lawyers. One of the takeaways is that they're all different. There is no formula for it. There is no mold or correct way to do this and achieve and be enormously successful. There are the alpha males who pound the table and have high testosterone. There are female lawyers who are aggressive.

There are female lawyers who are empathetic. There are the male lawyers who are soft spoken and nerdy. Any one of those models can be successful in what we do. What matters most is that you're authentic to who you are, that you don't try to be somebody you're not. I think one of the things that, it came too late in my career and I'm still struggling with it, is that embracing your own foibles or your own vulnerabilities. I think we all have a lot of doubt. We all have a lot of insecurity. We all have to deal with fear. But rather than running from those things or trying to overcompensate by being extra sort of tough or aggressive, which is, that's how I always handled it early in my career, I was sort of super aggressive, but that was really coming from a place of weakness, not strength.

So I've tried to figure out how I can be the best version of myself and be authentic to who I am. And I do think ultimately that is what separates the great lawyers from the lawyers who are still struggling to find greatness. And the sad part is everybody has that within them. In order to get there, you have to give up things though. You have to give up this image of who you think you are. And you have to be willing to recognize your vulnerabilities and your weaknesses and then accept them and talk about them, share them with the jury. When I talked to the jury, in my recent trial, about struggling with mental health issues, I said, "I've been there." Because I have personally. That's something I went 20 years not admitting to anybody, but it's part of who I am.

So I talk about it now. To me that is the common thread. And the other part of it, I remember asking Don Keenan once, y'all know him? He's in your neck of the woods down there. I said, I was just interested. We were talking about some of the big verdicts that had come out in the inner circle group, and I said, "How does pull a name? How do they turn down a $24 million offer to go to trial and get a $50 million verdict. Who turns down $24 million? That sounds insane to me." And he looked at me and he said, "It's because they know they're going to win. They know, and they just have this confidence." And I think the... Look, of course, they don't know. This is just a frame of mind, it's not a reality. But what his point was is that you get to a point in your career where you have a confidence that you're willing to bet on yourself in those situations, even in those very high leveraged, high stress moments that we all confront regularly.

And how do you get to that point in your career where you're willing to bet on yourself in that way? You guys bet on yourselves every day. You're building out your firm, you're opening new offices, you're taking on risk. We all do that. I'm really impressed with the firm you guys have built. In fact, it's been kind of a... As I started my own firm, your success and what you've accomplished has been kind of a motivating factor for me. But we do that. You guys do that every day. We do that every day. But you're just doing it on a different level. You're getting to the point where turning down $24 million for some people and trying it because you know the case is worth double that and you know you have it in you to accomplish that goal. And you don't have a lot of doubt about it. I'm not there yet.

Matt Dolman:

Now you hit the nail in the head though. That's a proverbial gift force. How do you look that in the mouth and just say no when you have a $24 million offer or substantial offer and the fear, I guess, and obviously you overcome that fear, but the fear that if you don't deliver the result, how do you explain to the client that offer was there? Obviously they saw it and you steered him with legal counsel, tell them not to take the offer. But how do you go back to that moment and say, "Man, we made their own decision here."

Ben Gideon:

I just don't think... That's almost a rhetorical question. There is no answer to that other than you get to the point where you'd only turn down 24 to try the case if the case really was worth 50 or 75 or 100, right? Why are you turning down $200,000 to try a case to a two and a half million dollar verdict or a one and a half million dollar verdict? It's the same just on a... The ratios are the same, just on a different scale. Right? So it's the same principle, but it's just that as you've had more time, I guess, and more success and recognize that if you go into court with a case where you're right and where justice demands a certain result, and you can convey that message to the jury that more often than not they're going to follow that and do the right thing.

And you have confidence in that based on past history and experience and track record, then you get to a place where you can do that. And obviously you would never do it if your client said, "That's crazy. I want to take the offer." Your client would have to be willing to do that and understand the risks as well.

Matt Dolman:

I know you have a depo coming up and you have some real lawyer work to do in the next few minutes. So I'm going to let you go very quickly. But one last question for you. How much stock do you put into jury consultants? I see all these different groups around the country that preach using certain methods to pick the jury, and it's almost cultish. How much stock is there in it? I know there's multiple ways to skin a cat. Is there a specific way that's the best or how do you do it?

Ben Gideon:

So I'm a very big believer in investing in cases, and that will include bringing in experts for things like for years we've done focus groups on our own and we're pretty good at that. But I've started to do a lot more of that big data analysis where we evaluate cases and put it out to hundreds of focus group jurors. I'm a big believer in jury consultants, in trial consultants, because I think that anybody... Primarily what they do is to force you to think critically about things that you being so close to your case and being really vested in the approach you've taken to work the case up and to prepare it, unwilling to places you're not willing to go without being pushed by somebody coming in and looking at it with a fresh set of eyes from the outside.

I've found it to be enormously valuable to me. Now, look, it comes at a price and in some cases a hefty price. In the case we just tried, for example, we did a big data analysis on it, and you might say, "Well, a case with no special damages and with an offer of $7,500, why are you spending $30,000 to do a big data study?"

And I kind of think it goes back to the phrase I've heard. I don't know where I first heard it, but it's sort of something I try to repeat a mantra over and over in my mind, which is there are no such thing as small cases, just small lawyers. Because a lot of cases that you read about where you see huge verdicts, many of those cases, you know lawyers very well who would've settled that case for many, many multiples lower than what the verdict was. You probably look at many of those cases and say, "That's a case I probably wouldn't have even taken. Or most lawyers I know wouldn't have even done this case." I think about Rick Friedman's case where, okay, the guy is suing Monsanto, which is one of the largest corporations in America that has unlimited resources to defend the cases and has used those resources to the fullest in all of his cases.

And he is got 100 clients, or how many ever he has, I don't know. None of whom have any, maybe a couple, but as far as I know, most of whom have no medical injuries that they've treated for. Not that they weren't injured, but they didn't get any treatment, not necessarily any economic losses. So you're going to invest four or five years of your life, millions of dollars in costs to take on those cases against one of the largest corporations in the country, who would do that? And now at this point, he's got about... He's tried four of those cases. Everyone has been a plaintiff's verdict, and the combined value of those cases is about half a billion dollars in a case that I'm pretty confident if that walked into my office, I would've said, "Thanks, but no thanks." Right. I'm not suing Monsanto for cases involving almost impossible to prove injuries.

Yeah. There's no such thing as a small case. They're just a small lawyer. And that is a big case, but it's only big because of who the lawyer is that's handling it. It wouldn't have been big in the hands of most lawyers. It would've been nothing in the hands of most lawyers. So now, look, there are obviously bad cases and good cases. There are cases where you look at it and you decide, this isn't something I want to spend my time and we don't want to invest our firm's money in.

And hopefully you can nicely and respectfully explain to the person why this just isn't a case that we want to be involved in. And they deserve to have a lawyer that wants to do that case. So that's the luxury of doing plaintiff's work. We get to choose our clients and our cases, but once we do that, I think we owe it to them to get the best result we can and not to just view it through the prisms of all of these mantras or philosophies that we've been spoonfed for years by the tort reform industry and the insurance industry.

And honestly, many of our colleagues who are out there fire sailing and settling cheap in cases and not getting the best results for their clients. So that's kind of how we like to do it. And to me, that's the fun part of what we do is to create something, build something where nothing existed. You guys do that very well from what I can tell. And that's why this is fun. That's why it's a heck of a lot more fun than just trying to pick people apart and damage people's cases. Right? But it's hard. It's hard stuff.

Matt Dolman:

I know you got real lawyer work to go do this afternoon.

Ben Gideon:

I know. It's such a shame.

Matt Dolman:

I hope I didn't overstay my welcome.

Ben Gideon:

No, no. My depo's at one o'clock. So I still have a few minutes, but I got to focus on it.

Matt Dolman:

Yeah, let's do this again. Let's just be a fluid conversation because I have a lot more issues I'd like to pick your brain about, but it would take up the rest of this study.

Ben Gideon:

No. It's great. And I see you guys have an office in Boston, so you're not far from us. If you're ever up here in the northeast, we should connect up. We're in Boston a lot ourselves, so maybe we can get together in person and meet up. That'd be great.

Matt Dolman:

Love to. Yeah, if we get a cash off a case, I'd love to bring you in or you work the case up with you.

Ben Gideon:

Sounds great. That'd be fun. Thanks guys.

Matt Dolman:

I really appreciate your time. Thank you, Ben.

Stan Gipe:

All right. It's been great. Thanks, Ben.

Ben Gideon:

Bye-bye.

Voiceover:

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