Dan Small: Paul Kiernan is not only a partner in Holland & Knight's Washington office, but he is the chair of the firm's Public and Charitable Service Department. And in that position, he oversees literally hundreds of pro bono matters all across the country. Paul, I want to talk to you about pro bono and not only why it's important, but why it's so helpful for trial lawyers at all levels. Tell us a little bit about your work in that regard.
Paul Kiernan: Yes Dan, pro bono is at the heart of what we should be doing as lawyers. It's an opportunity to give back to the community. It's an opportunity to help people who cannot afford a lawyer or whose issues are not popular, but they need representation and they need help. And for a trial lawyer, especially a newer trial lawyer, it's an unparalleled opportunity to run a case, to get to know somebody very, very well, to get to know a client very well, maybe a client who's got a very different life story than you have. And to learn how to shape that client's story, how to drive an agenda for your client.
And when you're in the courtroom, of course, the jury doesn't know that you're working pro bono. The judge does, though. And in my experience, when you come in representing a client for free, and the judge will know that. Whether it's a jury trial or a bench trial, doesn't matter, you definitely have a leg up. That doesn't mean the judge is going to violate the law, but the judge is going to help you out. The judge is going to try to make sure this happens. And obviously, if the judge has reached out and asked you to take on a case, even more so. I'm not suggesting the judge is going to do anything improper. But I am saying that the judge will help you rephrase a question. I am saying the judge will help you get through a direct examination if you're new with this. I am saying the judge will probably err on the side of letting you go a certain way when you've agreed to do it for free.
Dan Small: Obviously, there's a wide range of how much time people spend, how committed they are to pro bono. What kinds of excuses do you tend to hear from people who don't get into pro bono?
Paul Kiernan: Fortunately, that's rare at Holland & Knight. I would say it's usually the press of business, right? I'm very busy. I have a lot to do. Sometimes I have lawyers who want to do pro bono but they say, "I don't want to go to the court. I don't want to be in the courtroom." To which my answer is always the same. "If you don't want to be in court, we don't want you to be in court. Here's something else you can do to help." My personal experience is that I remember every single thing about every pro bono case I've ever tried. Every single thing.
I do a lot of commercial litigation. People come and go, dollars come and go, you know, that's it. I can tell you exactly the story of Mrs. Penny that I had as a pro bono case 40 years ago. I can tell you where she lived. I can tell you what her house looked like. I can tell you what she looked like. I can tell you what the opposing counsel looked like and what we did. It was the first time I had a case that I was really running myself. It's the first time I argued not only in a lower court, but up on appeal. It was a unique opportunity for a young lawyer to be in the courtroom. And you are responsible. You are in charge.
Dan Small: Have you had other lawyers in the firm develop their skills through pro bono?
Paul Kiernan: Absolutely. I absolutely do. And the reason why is I think because when you're doing pro bono work and you can have such an effect on somebody's life, on the trajectory of their life, you really give it your best and the impact you have can really have the best — I'll share with you a pro bono story that was from a few years ago now, but we had an associate in an office who was not a litigation lawyer, and she heard about a situation with a young man who needed a lawyer who was trying to assert his paternity rights under North Carolina law. And it's a sort of complicated and esoteric area of the law, but what she did, masterfully, was get to know the client and really get the client's trust. And then I trained her up to do direct examination of the client. She wasn't a trial lawyer. She wasn't a litigator. She was a transactional lawyer. But I knew she was the right person to be able to take that young man through his story on the stand. And she was. I handled some of the other people, but she did that because of her intimate knowledge of the client and his situation and their connection, so that when something came up at trial that, an evidentiary issue or something, it was fine. I'd whisper to her, we'd get through it, but she was able to powerfully convey his story and we ultimately won the case in a situation when no one thought we could win this case. No one. Especially the judge on the first day of the case — that was not a jury trial — but the judge on the first day of the case said, "What are we wasting our time for on this?" And we won the case.
Dan Small: That's great. The thing about trust and gaining the trust of the client is so important, and I think pro bono really helps people to understand how important it is.
Paul Kiernan: Well, I think it sharpens your skills as a lawyer. Whether it's in front of a jury or not in front of a jury, doesn't matter. It sharpens your ability to listen carefully to a client, not just what they're telling you, but what they're all really telling you underneath. We had a jury trial here in the federal court in Virginia a number of years ago. Young man had come here from Africa to escape political violence, had stowed away on a plane, landed at Dulles Airport where he was promptly arrested and was brought to a Virginia State jail. And while he was in jail, he was attacked. And we wound up suing the jail system. And two things happened in that case. One, which I'm personally proud of, which is I got two jurors to cry during my closing argument. That feels good. I'm sorry, it feels good when you're a trial lawyer.
So here's the other thing that happened, it was fascinating. There was a witness for the state who was a nurse at this facility. And whether you thought that the plaintiff should prevail or not is neither here nor there. What was clear was that the quality of the medical care and the attention that was being given to these people that were housed there was not up to snuff. So when the nurse finished testifying, the judge called all the lawyers out to the stand and out of the hearing of the jury. She put her hand over her mic and she leaned over and she talked to the lawyers that were representing the Commonwealth of Virginia and said: "Look, I get a lot of cases up here from that jail. And what I've just heard does not sound like the quality of work that should be going on there. So regardless of this case, I want you to go back to the state and say this has got to improve because I'll be waiting next time. I'll be watching. I will be paying attention. This better get better." And then we proceeded with the case. But there's an instance in which we probably helped some other person without even knowing who that person ever was, but who got better treatment because a judge paid attention and was listening and because we had taken on a pro bono case.
Dan Small: That's amazing. That's a great, great tribute to your work. Well, Paul Kiernan, it has been a great delight. And I thank you for your wisdom. And I hope you'll come back another time, we can keep talking.
Paul Kiernan: I would love it, Dan, thank you for doing these podcasts. They're very informative and very great to listen to. Thank you.
Dan Small: Thank you so much.
