Harvey L. Kaplan

20 Questions with Harvey L. Kaplan

1. You have become very highly regarded and decorated for your trial prowess in the area of product liability law, particularly with respect to pharmaceutical and medical device litigation. What drew you to that specialty as your career developed? Perhaps your major at the University of Michigan?

You're probably thinking, and it is a good thought, that maybe it was the fact that I have a Bachelor of Science in Pharmacy from the University of Michigan. But, the answer is, "No, that's not it at all." I always wanted to be a lawyer. That was my goal. Pharmacy was just a stop along the road. While it may seem to be a curious stop, it really isn't when you know my background. My father was a pharmacist, and he had drug stores. So, I kind of grew up behind the counter of his drug stores. He knew that I wanted to be a lawyer, but he encouraged me to get a degree in Pharmacy first because he had lived through the depression. As he used to put it, "Son, I've seen lawyers starving to death. If you get this degree, it's always something you can fall back on."

So, I trudged through the Pharmacy degree at Michigan. When I arrived at the University of Michigan, what used to be a four-year degree course became a five-year degree course. So, there I was, pursuing a major that, if I had it to do all over again, I wouldn't do. But when I look back on it, I say, "You know, it all worked out just fine."

The fact that I got into pharmaceutical and medical device litigation was fortuitous. I started practicing with a small insurance defense firm in Kansas City for about a year and a half. I took time out for active duty in the Army Reserve during the Vietnam era. Then, I went to Shook, Hardy & Bacon in 1970. I had grown up with Mr. Hardy's son, David, who was a partner here. He retired about six or seven years ago. Shook, Hardy was a firm that I very much looked forward to joining. I was the 26th lawyer in the firm at that time. When I joined, the big "claim to fame" for Shook Hardy was that they represented Philip Morris, Lorillard, and Brown & Williamson. David R. Hardy developed a big practice in tobacco litigation and began doing work all over the country.

The way we got into pharmaceutical and medical device litigation is a story worth telling. A lawyer from Eli Lilly and Company in Indianapolis heard Mr. Hardy give a talk at some conference, and he was very impressed with him. The lawyer's name was Ray Rauch, and he had a couple of cases in St. Louis. So, he called Mr. Hardy, David R. Hardy, and said, "Can I come to Kansas City and visit with you? I'd like to talk to you about a couple of lawsuits that I have in St. Louis and get your thoughts." He did. He said to Mr. Hardy, "You know, I need the very best trial lawyer in St. Louis, and I really would value your recommendation. Can you tell me who you think that would be?" And Mr. Hardy, in his characteristic fashion, said, "Yes, I can. That would be me!" Rauch was very taken with Hardy.

Then Hardy said, "I've got a partner by the name of Lane Bauer, a great trial lawyer. He can work on these matters. And I have a fine young associate who has a degree in Pharmacy. His name is Harvey Kaplan, and he'll also work on these matters." So, that was how I got started representing pharmaceutical manufacturers. We had to go to Indianapolis, meet all the right people, including the General Counsel, and "pass muster." We did, and all of a sudden, instead of going to docket calls in Liberty, Missouri, Platte City, Missouri and the Circuit Court of Jackson County, Missouri, my world opened up. There I was doing work for Eli Lilly and Company. That was the start.

That was a lot of lawyers ago and a lot of years ago. We're now a firm of about 520 lawyers, with nine offices, including two in Europe.

2. Having tried cases in a variety of states, what similarities have you found among all jurisdictions, and perhaps among judges, and what totally unique courtroom practices have you noted with respect to certain other jurisdictions?

The biggest similarity I have noticed is the people that I've encountered as jurors. Sure, there are regional differences and there are differences among people demographically and so forth. But, what I have noticed, for the most part, is that people are very welcoming and accepting. If you are straight and honest with them, they appreciate it, they can get it and they can understand it. I've never encountered any problem being a Kansas City lawyer going anywhere else and trying cases. That covers New Mexico to New York to Michigan to Louisiana. I just have never encountered an issue. Now, if I were to try a case in some very parochial, small town, for example, in Mississippi or some place like that, it would be a different story in terms of the role that I would play. But in all the places I've been, and I've been to some far flung jurisdictions like the Upper Peninsula of Michigan, I find that people are people. That's the similar thread that, I think, runs through things.

MR. HENRY: What about some courtroom practices that are just kind of unique?

MR. KAPLAN: Well, one that I will never forget happened in Marquette, Michigan. That's the "big city" in the Upper Peninsula. We had a 12-person jury with two alternates. In every place I've tried a case other than Marquette, we knew from the get-go who the alternate jurors were going to be. In Marquette, we didn't. At the end of the case, the jurors' numbers or names were put into a wheel, and the judge pulled out two names who were then excused from the jury. Lo and behold, the two jurors who were struck at the end as alternates and who weren't needed anymore and therefore weren't going to deliberate or participate in the decision, were the two that we felt were the very strongest defense jurors in the case. That was one of the few cases that I have lost. It was kind of a compromise verdict; it wasn't a large amount. But we thought that these people who were struck at the end would carry the day for the defense. And, boy, were we disappointed when out they popped. I lost by lottery. At least that's my story and I'm going to stay with that one.

3. What is the toughest case you ever tried, regardless of its outcome? What made the case so difficult? What did you take away from that particular experience that stayed with you as you continued to develop as a professional?

There are two that stand out, although every case I have tried involved great sympathy on the other side. I suppose the most sympathetic and the one that had the most riding on it at the time was a case I tried for Lilly in Federal Court in Cleveland, Ohio. It involved a young man who developed testicular cancer and had both testicles removed. The allegation was that his mother took a drug during pregnancy called "DES."

DES was a synthetic estrogen given to women in the late 40s and early to mid 50s who were threatening to abort their pregnancy or were habitual aborters. It was thought that they did not make enough natural estrogen and that this synthetic estrogen would help maintain the pregnancy. An article was written by an OB/GYN at Harvard who examined eight young women with a rare form of vaginal cancer. To make a long story short, 7 of the 8 women's mothers had taken DES. So, a large litigation developed, and that litigation actually goes on to this day.

There were also male offspring of women who took DES, and there was a controversy about the development of testicular cancer. We believe that the science did not show a causal relationship, but it certainly was a controversial issue. There were far fewer cases involving men than women, and I believe this was the first testicular cancer case that was tried. If we had lost, not only would we have lost "big-time," with a "big-time" verdict, but it would have prompted lots of other cases to be filed and tried involving men with testicular cancer.

Here was a very nice young man. It wasn't his fault that he developed testicular cancer. It wasn't his fault that both testicles were removed. It was a very, very sad situation. As you heard the plaintiff's case, anybody would be moved by it, as we were. Handsome guy. So, you know, with his injuries, his future was, of course, that he would never father a child. He has to take testosterone injections for the rest of his life. I really developed a rapport with him, and with his mother and father also, who testified.

Two incidents stand out from that trial. After his dramatic direct examination, there were tears streaming down the cheeks of everybody in the courtroom, including the jurors. Then the plaintiff's lawyer turned to me and said, "You may cross examine." It was the shortest cross examination I have ever had in my career. But I stood up, looked at the witness. I addressed him by his name, and I said, "Hal, I have no questions." I sat down, and that was that. That was kind of one of the highlights. It was a judgment call, but what would you do with the plaintiff? Would you say, "Did it really upset you psychologically? Was it traumatic? Did it really hurt? What was going through your mind?" What would you say? I mean, he said it all on direct. There was nothing he might say on cross that would benefit the defense case, so I asked no questions. Sit down and shut up! Know when to hold 'em, know when to fold 'em. But you take a risk. You always take risks in the courtroom.

But the person that I did have to cross examine, albeit ever so gently and gingerly, was his mother. DES was produced by a number of companies. It was a generic drug, and lots of them looked alike. Going back in time, how would she be able to identify the fact she took Lilly's DES, which actually did have a name associated with it. But how would she identify that drug? Product identification became a big issue, and the plaintiff's mother's memory on that issue was a very important part of that trial. I had to cross examine her and point out to the jury that really she didn't have any direct evidence of the fact that she took Lilly's DES, nor did she have any reliable recollection of that. I did it in as gentle a way as I could, understanding that I had to get the point across to the jury. The highlight came on a break after I finished her cross examination. Her husband came over to me, and he said, "I want to thank you." He put out his hand. "I want to thank you." And we shook hands. And I said, "Why?" He said, "For being so gentle with my wife." I thought that was a supreme compliment. The upshot of it was we won the case. We were fortunate to win the case, and that was a good result.

4. You've been referred to by Chambers USA as "a strategic mastermind" at Shook, Hardy & Bacon respecting litigation department growth. Since you began practice in 1968, what major philosophical changes have you noted in attitudes toward growth and marketing at law firms, and has the business side of law taken on a life of its own?

When I started practicing, there was no such thing as marketing. It was a different way of practicing law. There were established local firms, and a "good 'ol boy network." You got your business at the country club. When you represented a company, you not only did their corporate work, you also did their litigation. At that time, representing high-end insurance companies was very prestigious, and it was really something if you did medical malpractice defense work. However, life and times in the legal profession passed by some of these firms. I could give you a list of firms that, when I came out of law school, were thought of as the most prestigious law firms in Kansas City, but they're no longer here. They're no longer here because their vision was too narrow. Lawyers don't adapt to change very well, anyway. There was a huge change in the way in which lawyers practiced law. They became more mobile, and the consumers of legal services became more sophisticated in their hiring decisions.

The first time I ever heard the term "Regional Counsel" was when the lawyer at Lilly that I told you about, Ray Rauch, decided that he would assign his oral contraceptive cases and his DES cases that were pending all over the country to three law firms. He had a firm in New York that traditionally represented Lilly, the old Dewey Ballantine firm; and then he had Shook Hardy in the middle third of the United States; and a West Coast firm, in Oakland, then known as Crosby Heafey. All of a sudden, we began doing things outside of Kansas City. It was no longer a local or parochial practice. That opened the vistas.

In those days, we had an Office Manager who was a retired Army Warrant Officer, and we had a bookkeeper. Today, we have a Chief Operating Officer, a Chief Financial Officer, a Chief Information Officer, an HR director, and they all have staffs under them. It's now operated like a real business. We also have a very active Marketing Department that supports us and helps us with presentations and "pitches." Our financial people help us forecast fees and budgets, the kind of "stuff" we hardly thought of when I first began practicing law. The aspect of law as a business has progressed dramatically. Today, we have a full time Managing Partner and a number of other lawyers who are actively involved in firm management. It's a sea change.

5. Some lawyers have certain habits, if not rituals or superstitions, before or during trials. Some have good luck charms. Are there any unique acts or items you do or have that fall into this category?

Yeah, I do. I do have some rituals. My rituals are that every morning before trial I buy two packs of peppermint Life Savers. And then, whatever door I use when I walk in the courthouse and the courtroom, I always walk out those same doors. I don't vary that routine. Yeah. Call it crazy. It is crazy. But that's what I do.

6. What item of memorabilia in your office recharges you whenever you see it?

You know, I look over at the pictures in my office. They all evoke great memories. They're all special, but none more so than when I look over and see my wife and my daughters and my grandkids. It gives me a warm feeling every time I look at those pictures.

7. What was your childhood ambition, or ambitions?

When I was forced to seriously think about a career in a Civics class in either the 8th or 9th grade, for a number of reasons, I thought I wanted to be a lawyer. Lawyers got up and spoke. Lawyers were involved in politics. It all seemed fascinating to me, like something I would want to do.

8. Who would you say have been your mentors throughout the years? What relatives, friends, colleagues, or adversaries have shaped you both as a person and as a lawyer, and how?

I had two primary mentors. The first was Tom Deacy, a fabulous trial lawyer. In the short time that I was with Deacy & Deacy, he gave me lots of good experience and was a role model for me. I always wanted to be like Mr. Deacy.

When I went to Shook Hardy, David R. Hardy was our reverend senior partner. He was a great trial lawyer and the father of my good friend, David K. Hardy. Mr. Hardy became my mentor. I had known him as the father of my friend throughout high school. When I was in law school, I realized that Mr. Hardy was held in very high esteem as a trial lawyer, and I was anxious to come under his tutelage. He gave me lots of encouragement and instilled confidence because he believed in me. I'll never forget when Mr. Hardy watched me present my argument in the finals of the moot court competition in my third year of law school. He gave me a big pat on the back after that argument. That meant a lot.

During the early days of the Lilly litigation, he would send me out, and I would think, "Oh my God. I'm going to probably sink here." He would tell me that I was better than the person that I was going up against, and I think he believed it. I'm not sure I believed it. His belief in me and his confidence in me really meant a lot. Seeing him in action and the way he handled himself both inside and outside the courtroom is something I think about almost every day.

Later in my career, I met a very fine plaintiff's lawyer, Arthur Raynes, from Philadelphia. I would add Arthur to my list of mentors. He was a true gentleman and was regarded as being among the very best of the trial bar. He emphasized the importance of family, which was always central to everything that he did. Arthur reinforced the importance of ordering priorities and that family must always come first.

9. What is your fondest memory involving trial work?

It was a case I tried in Albuquerque, New Mexico, another very sympathetic case. I represented GD Searle in nationwide litigation involving its Cu-7 IUD. The plaintiff was a brain damaged baby whose mother was inserted with a Cu-7 IUD after she became pregnant. The OB/GYN, who inserted the IUD, failed to diagnose her pregnancy, which she should have. Pregnancy is an absolute contraindication to the insertion of an IUD. Being pregnant with an IUD in place put the mother in a high-risk pregnancy category.

Anyway, to make a long story short, she delivered a one and a quarter pound infant at 26 weeks of gestation. Delivered this baby into the toilet. Obviously, it was an unexpected, early delivery. The paramedics were summoned. Miraculously, the baby lived. At the time we tried the case, the child was four and a half years old. The most difficult moment in the courtroom was a demonstration of what a physical therapist did with this child.

At the end of a 5-week trial, without going into a lot more detail, we did get a defense verdict. The foreperson of the jury was a lovely woman, who I believe was a teacher. When I shook hands with the jury afterwards, she said to me, "Thank you for a wonderful educational experience." That was really a highlight because that's exactly what we try to do. We teach. And there I was, teaching jurors about the medical issues involved with IUDs and why this lady had an early termination of her pregnancy. Obviously, this juror "got it." It was so nice for her to say that to me, and then she followed up with a very nice note that I still have. That was a great highlight for me.

10. What is your favorite aesthetic of trial – voir dire, opening statement, cross examination, closing argument? Has it changed over the years?

I like opening statement. That's my opportunity to tell my client's story and let the jury know that what they're about to hear should convince them to find in favor of my client.

11. Where do you go to find solace?

Sometimes it's on the golf course, but the problem is that I let my mind wander instead of concentrating on my game. Anyway, that's my excuse for being a poor golfer.

12. When you began practice in the 1960s, discovery was a growing trend that many today would argue has been a detriment to trial work. Do you miss the days of just saddling up and riding into court on a more expedited time frame?

Yes, I really do. Today, every case I'm involved in is a "big deal." Usually, it's some mass tort litigation. Electronic discovery has taken on a life of its own and is out of control. Millions of documents get produced in almost every mass tort litigation. It doesn't matter whether there's any merit at all to the litigation. It's expensive, and it's time consuming. I would add that it's also ridiculous.

Recently, I had a case with a very fine plaintiff's lawyer. I asked him why I never see him in mass tort litigation. He said, "Well, you know, Harvey, some of us still enjoy doing things at the retail level." I was taken by that comment.

13. In 2007, you gave the Litigation Counsel of America's "Response to the Charge" in New York. Your message was moving and encouraging with respect to a trial lawyer's role in society and our duty to seek justice through our talents as spokesmen within the judicial system. In the three years that have passed, have you noted any differences in the profession in trial frequency? Are you encouraged or discouraged by what you see?

Today, fewer and fewer cases are being tried. That's the trend. More are getting resolved by various means of alternative dispute resolution. Am I encourage or discouraged? I recognize that good lawyers settle cases, but trials are what we're all about. I am discouraged because litigation has gotten so expensive, and that certainly is a factor that weighs against trying cases.

But I don't know where the trial lawyer of the future is going to get experience like I was fortunate to get as a young lawyer. If someone were to say to me, "I really want to be a trial lawyer, what should I do to start out?" I would say go to the best U.S. Attorney's office in the country. There you'll get some really good trial experience. Then you can decide whether you want to be a criminal lawyer or a civil lawyer, but you'll have a lot of trial experience under your belt that you wouldn't get in private practice, certainly at that stage in your career.

14. How has your firm addressed training litigation associates in the present environment of diminished trial work?

I remember Irving Younger, a great Professor of Trial Practice and well known NITA teacher, who said that lawyers can get relevant trial experience outside the courtroom. First of all, they should read transcripts of trials to see how really good trial lawyers handle themselves, and that counts for something. They should also attend trial practice courses like NITA, and that really counts for something as well.

We have a partner who taught trial practice and evidence, and he heads up a very sophisticated trial training program at Shook, Hardy & Bacon. We have our own courtroom here. We have a basic trial practice course. We have a course in deposition taking. We also have an advanced trial practice course. We bring in faculty from our firm, and other firms, including experienced teachers of trial advocacy. We encourage our young lawyers to attend trial courses like NITA and the IADC Trial Academy. We place a great emphasis on trial training.

Unfortunately, that must substitute for actual trial experience these days. What used to be actual trial experience is now reduced to big deposition experience, for the most part. But we are definitely addressing trial training in this evolving landscape.

15. Shook, Hardy & bacon maintains a strong position on diversity and has received various acknowledgments for the firm's efforts in that direction. Diversity, along with excellence and integrity, is central to the LCA's mission and plays a fundamental role in our selection of Fellows, growth, and goals. We want to quote you on diversity in the next issue of Litigation Commentary & Review. So in a word, sentence, or paragraph, what is the significance or importance of furthering diversity within the profession of law and throughout our system of justice?

I would simply say it's the right thing to do. I don't think you can say it any more directly or simply than that. It's the right thing to do.

16. Okay, just for fun, what will be the Michigan-Ohio State football score this year?

Damn! Well, I'd like to say that we're going to get our revenge. But I know in my heart that it's probably going to be another tough year for the Maize and Blue.

17. What was it about Kansas City that attracted you to build a career there?

It was my parochial thinking at the time. I was a young man of limited vision, I suppose. I lived in Independence, Missouri until I was about 11 or 12 years old, went through the 6th grade there. Then we moved to Kansas City, which seemed like the "big city." Today it all runs together. Independence is part of the Greater Kansas City Area. Then it was a separate small town, Harry Truman's hometown. I grew up in Kansas City. I lost my mother when I went off to college, but my father was still living in Kansas City. I went to the University of Michigan for undergraduate school and then came back for law school at the University of Missouri - Columbia. I really wasn't thinking much beyond that.

As it turns out, in retrospect, not only was the degree in Pharmacy a wonderful background for my legal career, but also coming to Kansas City and landing with Shook Hardy, without realizing it at the time, was a stroke of luck. We were kind of like "the little engine that could." We thought broadly. We were fortunate to develop a national practice. So, I look back and ask what more could I have done anywhere else that would have been at any higher level or more satisfying? I'd say probably nowhere.

As Woody Allen once said, "Ninety percent of life is just showing up." I did. I just showed up. And good things happened. If I had to do it all over again, I might well think of going to Chicago, one of my favorite cities in the country. I love New York. But as a place to live, I've always thought about Chicago. My parents were both from Chicago originally. I have lots of family in Chicago, lots of friends in Chicago. And now we have a daughter, a son-in-law and 3 grandkids who live in Chicago. So I've always liked Chicago, but like I say, I don't think things could have worked out much better for me anywhere else. Kansas City is a very lovely city and a great place to live. It's easy.

18. Other than your second home in Scottsdale, what do you consider to be your biggest indulgence?

My wife would say, "Harvey has a clothes fetish!"

19. What trait do you most value in your friends?

That's easy. Loyalty.

20. What is your motto?

Don't take yourself too seriously.