Podcast - Bringing Mindfulness and Best Practices to Trial Law

Dan Small: Welcome to "The Trial Lawyer's Handbook" podcast. We are very fortunate today to have a special guest. He is an extraordinary trial lawyer and a gifted teacher of trial advocacy, Josh Krumholz. He's a partner at Holland & Knight and formerly head of Holland & Knight's Intellectual Property Litigation Group. My favorite accolade for Josh is from one of the IP magazines, which called him a "battle-tested trial lawyer." Josh, I'm going to dive right in. Thank you so much for joining us. We're lucky to have you today because my understanding is you had a trial in New York that just settled at the last moment. A trial lawyer friend of mine says that the best way to avoid going to trial is to make sure the other side knows you're ready for trial. I know you probably can't comment on this particular case, but generally, do you find that to be true?

Joshua Krumholz: So, thank you, Dan, my friend, for having me on. It is a great privilege to be talking with you. You have an awesome podcast. I'm happy to be a part of it today. To answer your question, absolutely. You know, I think that the only way to truly get the right settlement is to, for the other side to know that you are ready for trial and you've done everything to get yourself ready for trial, and you're not scared to try the case. That if push comes to shove, you will be ready to try it. Otherwise, it's hard to get to the right number because the other side will always intuitively think that you're going to cave at the end of the day. So, yeah, being ready for trial is the key to a good settlement, in my view.

Dan Small: Josh, we were talking earlier about this case that you had coming up for trial and you were trying some new approaches. Want to talk about that?

Mindfulness in the Courtroom

Joshua Krumholz: Sure, Dan. Well, I don't think you're going to be happy with me because I was going to break one of the cardinal rules in doing it. So I've had the benefit in the last couple of years of studying mindfulness and meditative practices, and it occurred to me that there is an important place for that, potentially, in a trial. So obviously, you know, mindfulness can mean a lot of things, but a lot of it is about being fully present in the moment and being fully connected with the people in the circumstances around you. So, yeah, an example is Bill Russell used to talk about basketball players could be in the zone where they are making their shots, making all the right plays without any consciousness to it, and they don't really understand why. They're just kind of accessing a different part of their brain. Bill Russell talked about times in his career where he was so connected that he knew what was going to happen before it was going to happen, not because he was making any cognitive determination based upon, you know, for positioning or anything, but because he just knew, he was accessing a different part of his brain. So, I've been thinking recently about how that could apply to a trial, because when you're doing mindfulness and you have a problem that you want to solve, you don't start by just diving into the problem. You start by connecting with the people, understanding them and then going from there, you know, understanding their situation. So you can't talk to a jury, but you can empathize with the jury. So what I was trying to do in the opening was pretty much waste that critical first five minutes in the eyes of a typical trial practice, right? The first five minutes of the opening, right? They're attentive. They want to hear what you have to say. It's when your themes come out, that's when, you know, you really try to emphasize the substance. I was not going to talk about any substance. I was going to spend meaningful time introducing my entire team, including members behind the bar at the risk of saying, oh, what a big team. But making clear, hopefully humbly, the critical role that they played in us getting there and then spending time, you know, thanking the jury, but we all do that, but like, in a really connective way of trying to express their feelings of nervousness and excitement and how the hell are they going to get everything done in their lives while they're sitting there listening to us? And because I had made the determination that whatever I can gain in substance was not nearly as important as creating a connection with them. And then the substance would follow. So it was going to look very different. And I was also, I know you are the guru of witness prep. You are the, not to blow smoke at you, Dan, but you are the best witness prep attorney in the country, and maybe you do this already, but I also ended up spending more time with the witnesses walking them into the courtroom than they were going to be. They weren't to be able to be there in the courtroom before they testified, walking them into the courtroom, walking them down the aisle, as it were, telling them how they were going to feel and how they would overcome it and get over it with some time and some questions to try to, one, validate how they were going to feel so when they got there and they felt that way, they said, oh, Josh told me I would feel that way, and Josh also told me that I get over it, so I'm going to get over it. So, those are just some ways that I've been thinking differently for this trial as a result of that kind of study.

 So, I've been thinking recently about how that could apply to a trial, because when you're doing mindfulness and you have a problem that you want to solve, you don't start by just diving into the problem. You start by connecting with the people, understanding them and then going from there, you know, understanding their situation.

Dan Small: That's great. I will admit that when I teach lawyers, preparing witnesses that I do around the country, one of the things I talk about is the park bench that, you know, outside of the building there is a park bench. And if you went out and sat next to a complete stranger and started asking them questions about their work and their life and their finances and everything else, they'd think you were crazy. And you really do have to take the time to establish a bond and to help the witness to understand what's coming. I couldn't agree with you more. So now you have to go and try another case, use the mindfulness tools and come back and report how it worked.

Joshua Krumholz: So if I win it worked, if I lose, it didn't work. Is that how it goes? Because as you know, trial work is an imperfect experiment.

Dan Small: We won't blame it on mindfulness one way or the other, but I'd be very curious to hear, it really sounds like an important thing to do. An important piece to add to the trial lawyer's handbook. And having spent all the time and effort to get ready for trial, how do you deal with the frustration of all of a sudden having the case go away on the courthouse steps?

Settling a Case Before It Goes to Trial

Joshua Krumholz: Oh, you mean like spending months, like, living on caffeine and potato chips and looking at all the minutia and doing all the hard work and then at the last minute not having any of the fun? Well, you know, it's part of our job. You know, it stinks. I mean, that's, you want to try the case as a trial, or are you happy that you got your client a really good result, and mostly feel bad for the younger folks because, as you know, Dan, in this world in which we live, it's very hard to get younger lawyers opportunities to try a case, take witnesses, but even just be present. And this was another opportunity where we had several younger lawyers who were going to get some real experience and now they're not. So for me, I was happy to get a good result and relax a little bit, but for them it's tough.

I mean, that's, you want to try the case as a trial, or are you happy that you got your client a really good result, and mostly feel bad for the younger folks because, as you know, Dan, in this world in which we live, it's very hard to get younger lawyers opportunities to try a case, take witnesses, but even just be present.

Dan Small: I'm going to use that to transition into something else I want to talk about, which is, in addition to your trial work, you're in charge of Holland & Knight's extraordinary John Hogan Trial Academy, which teaches litigation skills to associates. What are the biggest challenges you find in that process?

A Look Inside Holland & Knight's John Hogan Trial Academy

Joshua Krumholz: It's an amazing experience. It's been an amazing experience for me, and watching the associates grow in a matter of three days is amazing in its own right. There's a lot of challenges, but if I had to pick out one challenge that's maybe not the hardest if you do it right, but it's the most important is creating a judgment-free zone, right? So our faculty, our partners, you know, very established, well regarded partners who have a great track record in the courtroom. And they're working with associates that they may or may not have had a prior relationship with. But even if they haven't, there's still the associates want to perform well in the eyes of the partner. They want to perform well in the eyes of their fellow associates. They want to perform well for themselves. It's really hard. But, you know, learning how to be a trial lawyer is scary business. I mean, you know, you got to put yourself out there. You got to take risk, you got to expose yourself and you can fail, right? And we all have. That's the nature of what we do. So, getting them to be in an environment where they're comfortable failing so that they can succeed, where they're not judging themselves harshly, they're not judging each other harshly, and they're not being judged by the faculty. To me, the important thing that I try to do when we're at these things, you know, we're all type-A and we all drive a lot of self-worth from how we perform. So kind of getting them out of that to give them some comfort to me is the most important thing.

But, you know, learning how to be a trial lawyer is scary business. I mean, you know, you got to put yourself out there. You got to take risk, you got to expose yourself and you can fail, right? And we all have. That's the nature of what we do. 

Dan Small: What surprised you about this process of teaching trial advocacy? What didn't you expect that's happened?

Joshua Krumholz: I don't know. It's a surprise. I mean, I just didn't know whether these things would happen, and it's great that they have. One is how quick they learn. It's a three-day program, and, you know, I tell them that don't, if you're going to judge yourself, judge, you know, how good you were at the end compared to how you started. And they learn so quickly, right? I mean, with the right circumstances, it's really cool to watch, and a little extraordinary. Another thing was how much they bonded with each other. This is off site, a very intense period of time. And there are subgroups and just watching them all share the experience together, I've heard so many comments about how they've all become friends within the ecosystem of the firm. And I guess the third thing, Dan, would be how much the faculty get into it. They have to commit too, right? I mean, they have extraordinarily busy calendars by the very nature of being selected to do this. It means they're a really experienced trial lawyer, and it's hard. You know, they've got to separate themselves for three days. But once they do and they get into it, man, they love it. They just love it. And it's really cool to watch.

Dan Small: And I, true confessions, I was privileged to be on your faculty twice on this thing. John Hogan, who Trial Academy is named after, was a great litigator and a great friend, and it was a real honor to be invited to talk to these folks and to work with them. And I agree with your surprises there, it's a great program and a great experience.

Joshua Krumholz: You, maybe I'm saying this, I shouldn't say it out loud with all the other great faculty, but you are the star of the show, my friend. So, you are a great teacher, and they love you for good reason. So thank you for everything that you've done.

Dan Small: I appreciate it, it was a lot of fun. I started out as a federal prosecutor for 10 years trying cases around the country for the Department of Justice. When I got out and went into private practice, I was surprised to learn that there really is a difference between a litigator and a trial lawyer. Is that something that makes sense to you? Have you seen that?

The Differences Between Litigators and Trial Lawyers

Joshua Krumholz: I think if you look at any way that I've self-described myself, I've never described myself as a litigator, always as a trial lawyer. And that's a very conscious decision.

Dan Small: What was most important to your development as a trial lawyer?

Joshua Krumholz: I got really lucky. When I was a senior associate heading to young partner, I apparently was unable to settle cases for some period of time, so I ended up really trying about six cases within like a two to three year period. You know, it was a remarkable stretch of cases. And what it allowed me to do was to find my voice, right? I mean, figuring out how to be a first chair attorney, there's some trial and error. And some things work better for you than other things, and you really can't know until you start doing it and seeing how it fits. And because I had so many cases within a short period of time, I really became comfortable with my voice and what worked for me and what didn't fit as well. And so when I got better as a consequence of that, and it's like anything else in life, you get better, you get more confident. The more confident that you get, the better you get. So I was really lucky to kind of fall into this sweet spot where I got a bunch of smaller cases when I was younger, and then by the time I got much bigger cases, I had, had that experience so that I could then translate to cases with much more at stake.

I mean, figuring out how to be a first chair attorney, there's some trial and error. And some things work better for you than other things, and you really can't know until you start doing it and seeing how it fits. 

Dan Small: It's interesting that you say that because I have the same feeling about my experience. I was very lucky. I got thrown in by the government. Only in the government would I get thrown into trying the kinds of cases that I did for the Department of Justice. It's trial by fire, you learn by doing. But that leads me to circle back a little bit, I don't want to do too much on this, but how do we get the next generation of trial lawyers that kind of experience? That kind of luck doesn't happen that much anymore. It's too expensive, it's too complicated. How do we get them that kind of experience?

The Future of Trial Law

Joshua Krumholz: Yeah, it's the existential crisis of what you and I do, right? That the opportunities for young attorneys to become seasoned attorneys are few and far between. And there is, I think, a legitimate fear that we're raising a generation of lawyers who are not going to learn how to try cases. I guess they'll all be even because they'll not know how to try cases together, but one, lawyers, senior lawyers need to be able to take some risk when they do have trials and put associates on witnesses and talk with their clients about the need to do that. I have heard from some clients who have a lot of repetitive litigation where they have played a proactive role in building the trial team, and sometimes it's, they will build the trial team among more than one firm. And have played, again, a proactive role in identifying younger attorneys that they want to handle witnesses and get experience because they're targeting them as their lawyers of the future when old people like you and I don't do it anymore, which is a really interesting phenomenon, that's, that is a client centric approach. Now, as for what we can do, you know, what you and I are doing with our teaching is obviously really helpful. And I do think there just needs to be programs where, you know, you're working at the DA's office or you're doing some pro bono work that really allows you to try a case. When I was young, I got all those trials. I also tried like three DUI cases in a row for the prosecutor for the DA's office. And that was a really meaningful experience for me as well. Even though the subject matter doesn't translate, the skill set that.

I guess they'll all be even because they'll not know how to try cases together, but one, lawyers, senior lawyers need to be able to take some risk when they do have trials and put associates on witnesses and talk with their clients about the need to do that. 

Dan Small: As trial lawyers, we all learn from each other's stories and experiences. And you've heard me speak on cross-examination and other subjects where I pull out various stories from my experience. Do you have a favorite trial story from one of your cases and lessons to be learned from it?

Favorite Trial Stories and Lessons Learned

Joshua Krumholz: Can I do two?

Dan Small: Absolutely.

Joshua Krumholz: Yeah. So, you know, there's a lot, Dan, when you've been fortunate enough to try cases, you know, but two that stand out to me, are this — one is we mostly do defense work, right? And the best defense is a good offense. And we had a patent case where it was a European client and there was a memo written in Europe by a European patent agent basically admitting infringement. That was not that pleasant, and the judge was going to let it in, but from the get go, we took the deposition of the in-house European patent attorney and in a completely disconnected way, you know, just in the background at the beginning of the deposition, you know, what do you do? What are your responsibilities? You don't give opinions in the U.S., right? That's for U.S. attorneys to do because you're a European attorney. What, seemingly innocuous questions, but what it did was, and seemingly innocuous, so they gave us all the answers we wanted. But what it did was, it gave us the basis to say that the memo was not qualified. Their own people say that you can't rely on it because this is U.S. law. And then we turn totally offensive, which our totally offensive — we're like, why would they put this in front of you knowing it's not a qualified opinion? Could it be because they don't have a real case? And it totally worked with the jury. So, that was a fun one. And you know, the lessons there are, young attorneys don't always appreciate how important depositions are, right? But having a long-term strategy and the seemingly innocuous deposition won us the case. I mean, it really did. The other story that I like to tell is about lessons learned, again, from deposition, the deposition context. And it was, again, a patent case. And it was a damages expert, and the damages expert was one of those guys that you would ask, you know, if today was Tuesday, and he would pause for 30 seconds and then answer the question, all the time. And he really had reason to believe that he would do the same thing at cross at trial. I didn't know, but it seemed to me that he would. So, he was opining on what was a reasonable royalty. Very early in the deposition, I asked a question or two, and I can kind of tell that he was doing the whole, you know, long hesitation before answering. I asked the most innocuous of questions: Are you really saying that this royalty is reasonable? That's not actually innocuous, you know darn well, Dan, that's like a worse question to ask because, you know, it just gives them an open book, right, to say anything he wants. But he did what I expected him to do from the deposition. It took him anywhere from 30 seconds to a minute to say yes, and then he said something else. But by then he was done. Like, why does it take you a minute to say that your royalty is reasonable? Right? So, it was just a really good example of paying attention to what happened in the deposition and translating it to trial.

And you know, the lessons there are, young attorneys don't always appreciate how important depositions are, right? But having a long-term strategy and the seemingly innocuous deposition won us the case. I mean, it really did. 

Dan Small: That's great. So, you're talking about patent cases, and I have to ask you, as I'm a non-technical person, I guess, computers puzzle me. What are the, what are the challenges of those cases? How do you present a complex IT case to a jury of normal people?

Joshua Krumholz: First of all, the intellectual property covers a broad swath of things, like this case I was about to try was a trademark infringement case about the shape of a juice pouch. Something very accessible to the common juror, and we're looking forward to that. But in the more complicated patent cases like, we'll be fighting about an algorithm that assesses how much bandwidth to give on a wireless call, it has to take into account time slowing down because you're approaching the speed of light, things that are way esoteric. So, how do we deal with that? You know, we're teachers, right? I have this back and forth with the team all the time, which is I will say something in a simple way. And I said, is it fair? I have filled in all the details, I get it. But if we filled in all the details, would it still be fair, or would they find some inconsistency or contradiction? And most of what we do is trying to distill it down to the simplest way that we can describe it and know that once it all gets back filled through expert testimony and all that, that the jury's never get to hear or understand, it holds up. So, it's a very long vetting process that results in, you know, five words.

Dan Small: We call those the core themes in a lot of our cases. You know, developing a set of short, clear statements that the jury is going to understand. So, Josh, this has been great fun, and I really appreciate you coming on. I hope you come again in the future. Holland & Knight calls this podcast, "The Trial Lawyer's Handbook," so I'll ask you, any parting wisdom for trial lawyers that we haven't talked about?

Parting Wisdom for the Next Generation of Trial Lawyers

Joshua Krumholz: Sure. So, this is the advice that I tell my team all the time. When we're actually getting ready for trial as opposed to everything that we've done up to that. You know, you asked earlier about the difference between a litigator and a trial lawyer, right? Both are trying to get the best result for their clients. One does it by, you know, trying to position a case for settlement through, you know, maneuvering the pretrial endeavors. You know, trial lawyers try to do that too, but we try and get the best possible result by setting it up for trial. And then when it comes time to actually get ready to try the case, the advice I give my team is stop being a lawyer. Stop thinking like a lawyer. Stop thinking about legal arguments. Be a real person. The jury are real people. Find your voice. Be human to them. Show all sides of yourself to them. Connect with them, and you will win your case, right? Too often, way too often, which is totally understandable, trial lawyers come in as lawyers and thinking like lawyers and talking like lawyers, and juries don't connect to that. It doesn't make any sense to them.

Stop thinking like a lawyer. Stop thinking about legal arguments. Be a real person. The jury are real people. Find your voice. Be human to them. 

Dan Small: That's great. Josh, I couldn't agree with you more. It's so important that we understand who our audience is and respect them enough to talk with them and help them to understand the case. This has been great. I really appreciate your coming on board. And with that, we'll close up shop for today. Thanks so much.

Joshua Krumholz: Thanks so much, Dan, It's been a pleasure. I'm happy to come back at any time.