Show Notes

In this episode of “Celebrating Justice,” trial lawyer Steven B. Barrett shares his intriguing story of how he considered becoming a doctor and a rabbi before finding his true calling in law.

Steven talks about how his ability to connect with juries and clients alike, a skill honed from his thoughtful interactions in everyday life, makes a difference in the courtroom. His numerous stories provide invaluable insights into the nuances of trial work with advice for seasoned and new trial lawyers.

For his “Closing Argument,” Steven touches on the concept of “lawyerly inertia,” a term he uses to describe the tendency among legal professionals to rely too heavily on their accumulated knowledge and experience when assessing cases. He emphasizes the importance of breaking away from this inertia by advocating for lawyers to remain curious and vigilant, pushing the envelope by exploring additional depositions or questioning even when a case seems straightforward.

Chapters

1:12 – Why did you want to become a trial lawyer?
6:25 – What makes you unique?
13:25 – A case that matters.
22:44 – Steven’s “Closing Argument”

Key Takeaways

Understanding human emotions can be as critical as legal expertise in trial law.
Maintaining a client-centric approach and genuinely listening to and advocating for clients will not only lead to better legal outcomes but also builds trust and rapport that transcend the courtroom.
Pushing beyond the initial apparent facts of a case to explore further can lead to significant discoveries, reinforcing the importance of diligence and thoroughness in legal practice.

Transcript

[Theme Song Plays]

Steven Barrett: It is a case changer. It sounds sort of like what you hear on a TV drama show like “Suits”. Like, “My clients should have their day in court.” It’s true. We all have very, very good experience and we all have a fair degree of precision. But there’s a big ‘but’ I tell everybody.

Narrator: Welcome to Celebrating Justice. Presented by the Trial Lawyers Journal and CloudLex, the next-gen legal cloud platform built exclusively for personal injury law. Get inspired by the nation’s top trial lawyers and share in the stories that shape our pursuit of justice. Follow the podcast and join our community at TrialLawyersJournal.com. Now here’s your host, editor of TLJ and VP of Marketing at CloudLex, Chad Sands.

Chad Sands: Welcome, friends, to another episode of Celebrating Justice. For this episode, we’re diving into the world of impactful litigation with Stephen B. Barrett. Join us as we explore Stephen’s journey and hear stories that have helped shape his career as a top trial lawyer. But before we hear the stories, I asked him, why did you want to become a trial lawyer?

Steven Barrett: Here’s the actual interesting genesis or origin of being a lawyer, let alone a trial attorney. So when I was at the University of Michigan undergrad, I first thought, “boy, I want to be a doctor.” So I learned with these huge survey, necessary, you know, 150 student class size, chemistry and biology and all the competition. I said, you know what? I really don’t have the wherewithal to really want to go through this torture test, to be called out, to ultimately try and get to medical school. So I’m sitting around thinking, all right, what am I going to do with my life? My family were educators. My mother was a teacher. My father was an educator, but he was also in public health. He had a master’s in public health. That’s where, I guess, I got the medicine part. But I came from a progressive Jewish household. And, you know, social action and social justice was I’m not saying we were virulent, but it was certainly something that we were always conscious of. I know from my upbringing values, I liked helping people, I sincerely did, and do. I actually get enjoyment when I can do something that helps somebody else. I was a good writer. I had won some short story awards through the Philadelphia Inquirer when I was in high school. And here’s the other interesting thing. So I’m sitting around and I said, “So what are all the characteristics that would make me be something that would be good, rewarding both financially and personally?” So actually, for a moment, I said, you know what? Maybe I’ll become a reformed Jewish rabbi, because it’s not that stringent in terms of rituals. You’re leading a community. You’re helping a community. You’re giving advice. You’re there for people when they’re in distress. And if you have a big enough congregation, you can earn a nice living. So the funny thing is, I’m sitting in my room at Michigan’s before cell phones, before the app, first Apple computer and I called my Jewish mother up, and I had some anticipation that she was going to be elated when I told her that I finally figured out what I want to do. My son, the rabbi. So I called her up and I said, “Mom, I figured out what I want to do with my life.” She said, “What’s that?” I said, “I want to be a rabbi.” And the instantaneous moment I said that, what did my mother do? She laughed, and it was the mother’s laugh, although without any intention of trying to derail me. It was just sort of a natural, visceral response, because I guess it wasn’t comporting with what she saw in me. There went the rabbi in it. I no longer was going to be a rabbi. The mother’s kind of laugh was, “That’s it, I’m done.” So I thought about the other characteristics: helping people, being able to write, being able to speak, and earning a decent living. The next thing was law. I kind of gravitated to the trial work because I was able to convey myself well and empathetic. And I guess the other one characteristic is I’m also the youngest of a large family. I have four older brothers, we were five sons. And what I noticed about myself, and anecdotally not that he was my doctor, but through a friend of the family who was a psychiatrist, one of my parents’ friends. Being of a big family, he actually said there were studies about this cause. I said to him, it’s really funny, but I seem to have this weird sense where I pick up on cues and pick up on emotional cues and even physical cues, just very naturally where other people just overlook them. And I said it’s just kind of odd. And he said, “Well, you know, Steve,” knowing my family, “there’s actually a reason for that.” I said, “There is?” He says yes. He says there are actual studies where children of larger families that in their birth order are the last or the baby or one of the younger ones, developmentally, when you’re in your family unit, you are sort of forced to cultivate picking up on signs and cues and sort of the nonverbal things in a family unit, because you’re not old enough to verbalize. You’re not old enough to physically accomplish or do something. You’re in the position of watching and observing. So you develop a very high emotional intelligence. So I noticed that when it came to clients or when I was putting on a mock trial in law school, I was able to really pick up on things that really made a difference. Small things, whether somebody was lying or somebody was trying to evade a question and throw me off. I innately was able to zoom in without even thinking, saying no. There was something inside me, not even consciously. I would say I’m not buying that. And I’d always seem to get a good result when I just listened to my natural self. So, given all the other characteristics, it just turned out that I seemed to do well at trial work and my career just has steadily gotten better and better.

Chad Sands: And you know what’s funny is that I’ve been hearing a lot from trial lawyers that they originally wanted to be a doctor. Can you share an aspect of your approach or personality that sets you apart from, you know, other trial lawyers?

Steven Barrett: The short answer is, I can do that. The longer answer is probably not something that I recognize unto myself. I do now. These are things that other trial attorneys and colleagues of mine have told me about myself. When I’m at trial now, I have cultivated that. I think I recognize what they’re saying, and I and I do know it to be, for lack of a better word, air quotes “true.” But it’s not something that I self recognized. But when I was younger, you know, the first 10, 15 years of my career, I’d be in front of a jury, whether picking a jury and asking them questions in the phase that’s called voir dire or when I’m giving the opening statement. But whenever I’m addressing the jury, people, both opposing counsel or my other attorneys in the firm, if I was second chairing a case or I was co-trying a case, they would tell me that for some reason when I am speaking, I just have this natural, high believability that when I talk to people, they believe me. And that’s the biggest factor you need as a trial attorney, other than having the preparation. As we all know, you got to prepare well and have good witnesses, making sure the witnesses are as credible as they can be. If an attorney is presenting the case and talking to a jury of as many as 12 people that you’re entrusting the case to and you want them to find in your client’s favor. If the attorney’s believability factor is low, you have just made your job so much harder to get the outcome you want for the client. And apparently when I speak to people, they sit there and apparently, believe me. Now, I could say that sort of cynically and with a little bit of humor and say, oh, I’m going to get away with something. I’m really talking through my teeth, but they’re going to believe me. I don’t do that. But at the same time, it’s nice to know that I have this natural feature that when I am talking, and even if you have difficult points, so, you know, they always say, as a trial attorney, you air your baggage up front with the jury. You don’t want to try and bury any of the negatives in your case, if you’ve got a problem in your case, let the jury know about it, explain it to them, and they’ll be a lot more forgiving. Right? So I think what goes along with that is not only does that make your case credible because you’re not trying to put anything over on the jury. And they say, wow, he’s believable.

And let me digress a little bit further. What I cultivated. But because it’s not even like something I cultivated necessarily for trial work. Meaning I don’t put on my trial lawyer’s hat and all of a sudden I have all these different characteristics or features. So when I go to a grocery store, even like when my kids were younger, or I go to a restaurant, right? So let me go to the grocery store. I go to the checkout, you put your stuff on the conveyor belt. Although, as we know, in this day and age, everything’s self-checkout. But if you’re if you go to the cashier, you know, they all have their name-tags and I’ll walk up and I’ll say, hello, Joan. And I can’t tell you how many times they’re like, “You called me by my name?” And they’ll actually sometimes they’ll say that like, “you called me by my name.” I said, “Well, of course you’re wearing a nametag. You should have earned the respect.” And I’ll have this conversation with them. In other words, I try and be real with people, right? How’s your day? How’s it going? I’ll use a little humor with them. I’ll make them smile and have, like, a feel good moment just by the transaction upon checking out. And frankly, I bring that into the courtroom. I will, in my own way, talk to the jury when I’m trying the case. If I’m asking questions, I’ll turn to the jury. I’ll bring the jury into the questioning. I’ll say, Mr. So-and-So on the stand, are you telling us that – And I’ll say this in the question. You’re not just telling us, you’re telling these 12 jurors here. And during the voir dire process, what I really take notes about is what they do for a living. And a little bit about them. Now, I know that sort of standard good trial work, but what I’ll do is I’ll say, for example, if, let’s say there’s a question about a trip and fall where it’s an interesting, strange slope, or the hazard was such where it’s something that deals with a little bit of physics or common sense. What I’ll do very naturally, I’ll say, you know, juror number seven, Mr. So-and-So, is an engineer. And I’m looking at juror number seven, just like calling the cashier Joan, or the waiter, and making a personal connection. I’ll say, are you telling juror number seven the engineer your proposition of A, B, and C? Is that what you’re really telling them? And I’ll tell you, I incorporate and cultivate that in a very natural way where I’m constantly not just drawing the opening statements where you’re talking to them, not just during the closing remarks and statements when you’re talking to them. But during the trial with the witnesses, I try and touch upon things that I bring them into the case actively. Without being anything, you know, prejudicial or doing anything improper. The juror, this is their background. So I’ll ask the question. I’ll point out the juror. There’s nothing wrong with that. But by doing that, it’s creating this sort of connectivity and this interpersonal relationship on some level that I don’t think most trial attorneys do. Some really good trial attorneys say I never look at the jurors. I don’t want, you know, I don’t want to even be distracted. I’m not going to see if they’re liking a witness, if they’re nodding, if their arms are crossed, it throws me off. I like to bring them in, because again, at the end of the day, when I’m giving my closing remarks to them, asking them to return a verdict in my client’s favor, I want them to like my client, like me, believe me, and like my case. And if you get that little personal touch, just like with the cashier. Because what are jurors? Jurors are nothing more than 12 people who have lives, who have their own, you know, desires. You know, the human condition does not get left outside the courtroom door or the jury box. They’re bringing their own human condition. And if you can relate to that, if you have an empathy and an affinity that you can connect with, it makes your job actually easier to present your case. As opposed to thinking, well, who is this arrogant attorney? Or why is this attorney doing that? Or how come you know – I’d rather have the opposite.

Chad Sands: I love it. Yes, trust and relate ability with the jury. Very important obviously. Can you share a story about a particular case that has had a lasting impression on you?

Steven Barrett: Yeah. Well, you know, I know, Chad, you gave me that as a preview, right? You sent me that in an email and there were a whole bunch. Right. But I’m going to do something a little bit the opposite. I’m going to tell you the story that almost sincerely had me leave the practice of law. And this was not dealing with personal injury. I’ll tell you what the case was, and I’ll tell you the lesson I learned from it, though, too. I had a case where I was representing buyers of a home, and when they bought it, there was all this flooding in the basement afterwards. So the buyer sold the seller and the seller’s real estate agent saying, you knew about this, you didn’t disclose it in advance, and now we have all these damages. We have to get companies in to remediate to, you know, redo the basement, to put French drains to trench. And we had good evidence that they were aware of this. Okay. And by the way, the client is spending good – a young couple, young married couple – they’re spending a lot of good hard money on me as their attorney to try and get justice for them. We take depositions. There’s two sets of attorneys on the other side, and we actually get called to trial in Philadelphia. And it was the week before Labor Day weekend. So we get called down on that Thursday or Friday. There is not a soul in Philadelphia City Hall, where all the trials take place, all the courtrooms are down there. We appear, the judge tries to hold, sort of, a settlement conference. And the problem was they really couldn’t get many jurors because everybody was away for the holiday. So we’re trying to settle it amongst ourselves in the courtroom. The attorneys are sitting right there with the clients. You know, people leaving the courtroom, making phone calls to the insurance company, and my going out with my client and trying to do shuttle diplomacy. In any event, the law clerk said, we’re not going to get a jury till after lunch. So take lunch, come back. We’ll pick the jury when we reconvene. One of the defense counsel says that he wants to see the judge. The judge comes out on the bench, and he makes a motion to recuse me from the case, because his client was the real estate broker who was sued. Not just the seller, but the broker for the seller, claiming that my partner represented the broker in real estate about something and therefore I’m conflicted out. And I’m listening to the motion. I wasn’t too green as an attorney and I wasn’t as seasoned as I am now. I’m thinking, what kind of motion is this? This is silly and this is preposterous. So the judge all of a sudden grabs a hold of his argument and starts berating me, says, did your partner? I said, well, actually, Your Honor, I was asked to recuse myself before we even filed the lawsuit two and a half years ago. And she says, “And you didn’t?” And I stood there and said, “No. Because if we don’t have a conflict, you don’t recuse yourself if the other side wants to file a motion, like he just did verbally. But I don’t have to.” I mean, this is a conflict you recuse. In any event, the issue was that my partner 10 years earlier represented 8 to 10 brokers collectively on one single issue on some real estate matter. And it wasn’t just this broker. It was like a consortium ten years ago that had nothing to do with this case. So the judge goes back in chambers, and 15, 20 minutes go by. And she comes out and says, “I’m granting the motion. Mr. Barrett, you and your firm are out.” We’re ready to try the case. My client has spent nearly $30,000 on legal fees, hard earned money, and this judge agrees on the motion and recuses us. Not only that, I sat in the courtroom when everybody left and I explained to my clients what just happened, which was frankly hard for me to explain because there was no explanation why this happened. Frankly, no good reason. I sat by myself for 15, 20 minutes thinking, what am I doing in law? I mean, this was such an unjust result that my head was spinning. And the thing that was really problematic was she knows how much these people spent. Because remember I told you she tried to do a settlement conference earlier in the day? So I was explaining to her how much they spent and for this judge to essentially say, nope, let me pull the rug out from under you. You have to start all anew. Your clients have to get new attorneys, spend more money. But here was the kicker. I found out from a tip staff of the judge on the QT because he saw how dismayed, and I guess he felt how unjust it was. He told me that she had to come in from the New Jersey shore, she was on vacation to try this case, and she wanted to get back down to the shore to enjoy the holiday weekend. When I heard this from the tip staff, I really wanted to just say, I can’t do this. I cannot be in this profession. It’s one thing for lawyers to obviously play games and maybe, you know, have ethical issues. That’s sort of par for the course, unfortunately. But when I heard this judge was not going to do her job and made my clients waste all this money all this time just to have their day in court, I mean, it sounds corny. It sounds sort of like what you hear on a TV drama show like “Suits”. Like, “My clients should have their day in court.” It’s true. I was almost depressed after this.

Chad Sands: How did you come to peace with it?

Steven Barrett: What I did was I regrouped. I went back to the office and I filed a motion for reconsideration, for her to reconsider. And now I attached, I had to pull out of archives, the file that my partner used, showing it was all of one letter he prepared. Literally one letter he sent to Harrisburg for 8 to 10 brokers ten years ago. So I said, well, if you know what, if I hold the judge’s feet to the fire and make a record to show, you really cannot stick by this decision. And I got the records, or lack thereof, I got an affidavit from my partner saying “no, what was described by the attorney is not accurate. Here was the one letter that we sent off to Harrisburg. Respectfully, you’re wrong, Your Honor. There is no conflict. You should not have recused us.” The process of doing that actually made me feel better, even before I had the decision on that motion reconsideration. Because I felt that it’s one of those times in life where I said, as badly as I felt, I did not have any control over the bad decision or really the improper decision. And I did everything I still could for the client to make sure that they got justice by keeping us in the case and allowing this to go to trial. The judge in the end, what did she do? You could probably guess what she did when she got my motion for reconsideration, with all the facts and the evidence, she said no. And what made me feel better was that, frankly, it was my client and my case. And this might sound like it’s self-serving, but this is what I actually did. I went to bookkeeping, and even though I did all the work and they paid the fee for that hard work, I didn’t give a full refund because we didn’t do anything wrong. But I just felt so badly for them because we’re professionals. I told my bookkeeping department to refund them 50% of the money they paid us, so they can spend it on a new attorney. And what I found out at the end of the day was that it ultimately settled. So they did get some money out of the insurance company.

So how did I get over it? It’s understanding what you can control, what you can’t control, and doing the best you can under the circumstances. And if that still falls short, you got to persevere. You have to still have that stick-to-it-ive-ness to keep going and do what you can for the client. Because even though I know in my heart of hearts, it was wrong what the judge did, I also know in my heart of hearts I did not do anything and I did the best I could for the clients.

Chad Sands: I mean, what a story. I can’t believe the judge still recused you after you put forth your kind of rebuttal, right? She still said you couldn’t do it?

Steven Barrett: Yeah. I mean, I showed her unequivocally what was being represented verbally just by opposing counsel. I mean, there wasn’t even any evidence to support what he was saying. That’s why I said to myself, boy, once she sees this and she sees that what was represented was wrong and not even accurate. But, you know, back then again, I think I was out for 12 years or so of practice, it also taught me that judges wearing a robe are still people, and maybe they have certain motivations that are not as worthy as you think they are. They’re like anybody else. They’re people deep down, and they may be subject to whatever impulses they may have. And that was a life lesson about that as well.

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Now here is this episode’s closing argument.

Steven Barrett: I’m the chair of the litigation department, let alone the personal injury department at my firm. And one thing I have learned, and I impart this so often at our litigation meetings and when I’m mentoring associates, and even very talented associates. It never ceases to amaze me to just take that extra step, just take that extra deposition, just do that little bit more investigation. When things are telling you and you surmise a case and you learn a basic core set of facts, and we’re all smart, we’re all intelligent, we all have experience, and nobody’s better than anybody else. But sometimes we get, sort of, legal inertia. And what I mean by legal inertia, or lawyerly inertia, is that we do know it all. We have experience. We have a fair degree of precision of how we know where a case is going to end up, more likely than not, just from listening to the facts, understanding the client, and understanding the law that we’ve mastered in our particular discipline, whether it’s personal injury, whether it’s a dram shop act, whether it’s construction law or engineering. We all have very, very good experience, and we all have a fair degree of precision.

But there’s a big ‘but’ I tell everybody. Because I’ve learned that notwithstanding that, just to push the envelope and take that extra deposition of the representative from the corporation or you know what, let me just find out about that critical eye witness. Let me depose that person. I can’t tell you how often. And it’s sort of kitschy, it’s sort of common vernacular to say ‘gold mine.’ I don’t mean gold mine. When you do that extra step, when you push the envelope, gold on the right term, the term that I would use other than gold mine. It is a case changer. Where before you thought the case was exactly how you thought it was going to play out, and the discovery and some of the witnesses you’re taking are just confirming your own, what I’ll call, lawyerly inertia. Your own bias, and I don’t mean bias in a bad way. We all have bias when we look at cases. That’s why one client may go to another attorney and say, that attorney says, oh, you do have a case where the first attorney may say, I don’t think you do. So I don’t mean bias in that we have a prejudice, but bias in terms of what we bring to a case. And for a few extra hours and a few extra dollars of doing a deposition when you’re like, oh, should I really do this? I think I know where this case is going to end up. I can’t tell you. And it never ceases to amaze me. Where all of a sudden the case just blossoms, it takes on organically a whole new life. But what does that mean? That means, sure, you’re happy that you’re stuck to it, you went against that on your own lawyerly inertia, if you will, and you’ve proven yourself better, right? So it’s sort of a revelatory, and it is a satisfying feeling when you do that. But who benefits? It’s the client. To pick up the phone and tell the client, guess what? You’ll never believe what came out at that deposition. Everything you were saying about what you remember. And we couldn’t find any evidence of it. And your case was weak because we couldn’t find anything else or any evidence or any person to corroborate or confer with. Oh my goodness. I’ve had clients actually come to tears because they feel exonerated. They feel just by the fact that I pushed, got more evidence. And what they were saying was confirmed. And we’re not even saying the outcome of the case. We don’t even have a settlement yet. We don’t even have a verdict yet. The thankfulness that they express, somebody is listening to them. Somebody has heard them. That feeling of satisfaction that the client feels and that you feel in those moments. And unfortunately, they’re few and far between. There’s perfect order to the universe of what we do. I’ll say that one last time. When you’re thinking that there’s still a possibility and there’s a stone that is material stone, you know, not something that’s just some fringe stone, but a real material stone that you should unturn and uncover, go ahead and do that. I bet you more often than not, you’re going to find that there’s some real beneficial information that’s going to change, or at least greatly influence the case. And if there was anything I had to impart in 30 plus years of doing this, it’s just that. Because not only does it help the client and make the case more valuable, but it just, on a certain level, makes you personally gratified that you’re able to do that on behalf of somebody, and ultimately you get a better outcome.

Chad Sands: That was trial lawyer Stephen B. Barrett from the firm Hamburg, Reuben, Mullen, Maxwell, and Lupine. Thanks for sharing your stories, Stephen. To learn more about Stephen, visit his website hrmml.com. All right, I’m Chad Sands. Thanks for listening. See you next time.

Narrator: You’ve been listening to Celebrating Justice, presented by CloudLex and the Trial Lawyers Journal. Remember, the stories don’t end here. Visit TrialLawyersJournal.com to become part of our community and keep the conversation going. And for a deeper dive into the tools that empower personal injury law firms, visit CloudLex.com/TLJ to learn more.