20 Questions with David Marsh
Preparation [is] more important than anything else. While jury presentation is also important, it is really a product of preparation. Being fully prepared- more prepared than the other side- creates confidence. Juries and judges appreciate it too.
2. I once tried a case in Marion County, Alabama, about a week after you pummeled an insurance company for seven or eight figures. Your jury foreman was actually a friend of mine. Lore has it that during that trial the expert came apart on the stand over file content that seemed to indicate a change in opinion. How many dream moments have you had like that during actual trial? Please tell us about them.
I have been fortunate to have had several. In the case you refer to, it was pure luck. The expert in accident reconstruction seemed to have changed some of his opinions since his deposition. Something just did not seem right. I asked him who he had spoken to about his testimony. He mentioned several in-house attorneys and others (insurance representatives). After pointing the various individuals out (they were in the court room audience) I asked if he had any phone messages. He looked kind of surprised, reached into his pocket and pulled out his phone with several messages. I looked at them and sure enough two of the messages were from the folks in the court room and read "need to discuss changing some testimony". I asked that he read the messages aloud for the jury. The jurors were visibly disgusted and I believe that the defense lost the case right there.
Also, I recently had a nice lady called as a witness against my client. One of my employees happened to see the witness in the hallway outside of the court room, where she hugged and planted a big kiss on the defendant (corporate representative and owner). I did not have a lot that I could ask her about substantive issues, so I asked about five questions. My first was whether she knew and liked the defendant, to which she replied "what do you mean by know and like?" I responded, "Well didn't you just kiss him on the mouth in the hallway?" The jury fell out laughing and she admitted that she considered the owner to be a very dear friend. I then asked her if it was hard on her to be in this position, and she said, "Yes." I told her that I understood and thanked her, but didn't need to put her through cross exam and asked the judge to let her go. She was a really nice lady and I think that the jury appreciated my leaving her alone... and the witness' bias was made clear in a humorous way. The entire cross took less than three minutes but may have been the best that I have ever done.
3. Have you noticed a deterioration in civility within the profession of law since you tried your first case?
You know, not really. I know that many feel that civility has deteriorated. I had unique and fortunate circumstances in that I started trying product liability cases very early in my career against some of the finest and most professional attorneys around. Most all of them had been practicing law longer than I had been living (a point that I routinely make to juries in a blatant attempt to gain their sympathy) and these lawyers were always very kind to me. Now, there have always been those who just make life miserable, the practice of law harder, and who are downright mean. They were around 30 years ago and they are out there now, but they are rare. I feel that most lawyers today are good people and handle matters with professionalism and civility.
4. Do you think law school should be two years with a year of legitimate apprenticeship or remain three academic years?
I believe that it should remain three years, with possibly some "tweaking" of the last year to give students an opportunity to work a few more hours with law firms for academic credit.
5. What have been the longest and shortest jury deliberations you have had in your career? Did either surprise you or were they somewhat expected?
The longest was four and a half days, jury was deadlocked 11-1 in our favor but the hold out was very strong willed. We won, but the one juror who was against us really wore the other eleven down on damages. The shortest was 23 minutes, the verdict was for more than I had asked, and I was shocked. I had left courthouse to go to my office for a file and was told when I arrived at my office that the jury was back.
6. How fast have you driven your Porsche?
7. In what percentage of the cases you actually try do you employ more than one expert?
Almost all of them, probably 90 percent. It's just the nature of my cases.
8. How often do you get out of town and clear your mind at your farm? What relaxes you most while there?
Several times a month, even if just for a day. Technology has made it possible to go to my farm for the weekend and still get some work done. I have actually prepared for my last several trials while at my farm. It allows me to relax and think about themes, how I will handle defenses, and subtle points that I almost always want to make in cases. I am answering these questions while on my laptop at the farm.
9. I often watch Top Gun the night before beginning trial because it always put what we do as trial lawyers into perspective for me. In what rituals, if any, do you partake the day before or in preparation for trial?
I go off by myself and think. Almost all cases, no matter how complex, need to be presented as a story and in a way that hits a cord with the jury. In the old days I would be in the office all weekend going back over everything: motions, legal research, and jury charges. Now I spend the last couple of days thinking, making notes to myself, and trying to think outside of the box. I believe that it makes me a more effective lawyer.
10. You told me one time when we were eating lunch at Carlile's Barbecue that when you were in law school you wanted to be a criminal prosecutor. Then you were encouraged to pursue an opportunity working with one of Alabama's premiere plaintiffs' firms. What was your initial attraction to trial work? That is, did you want to be Perry Mason growing up or was there some trigger in law school that made you gravitate toward the aesthetics of the courtroom?
As most students who attend law school, I really had no idea going in that I wanted to be a trial lawyer. In law school I became involved in the trial competitions at Cumberland School of Law and enjoyed it. Then I worked at the district attorney's office while in law school, where the assistant DA's tried many cases a week, and I actually tried cases with them through a third year practice program. I learned that I was comfortable talking to juries. In fact, I am more comfortable in trial than in social or one-on-one situations, where I tend to be reserved and somewhat uncomfortable. So, I did not grow up wanting to be like Perry Mason; rather, things just happened, and I was fortunate to end up doing what I think I am supposed to be doing.
11. What impact do you think the discovery process has had on the number of cases being tried?
I do not really know what impact discovery has had on the number of cases tried. If I had to guess, it has probably reduced actual trials. However, the reduced number of trials is also a result of other factors, including fewer causes of action (in Alabama anyway), and alternative dispute resolution, often court ordered.
12. What do you consider your most unusual accomplishment?
I have become a pretty good turkey hunter.
13. I once practiced with a fantastic, though legendarily difficult trial lawyer named Olin Zeanah. One of my partners at that firm, beginning when we were associates, kept a list of "Zeanahisms." They were little gems of knowledge that Zeanah would occasionally impart. Did you have a trial icon or mentor in your early years of practice who shared with you the wisdom of years of practice? If so, please tell us about them.
I can think of a couple. A really good lawyer once told me, "If you are not taking depositions you are not practicing law." This is so true if you are a civil trial lawyer. Our young lawyers sometimes get hung up in "paper practice," fighting about interrogatory answers, pleadings, and such. I tell them to move on to depositions where the real evidence is developed.
I was also taught early to "start strong and end strong" when delivering an opening statement or in a cross examination. I like to state my whole case in 30 seconds or less at the beginning of my opening statement, no matter how complex the case. The jury is fresh, they want to know what the case is about, and this time should not be wasted.
14. What has been the biggest change in the way law is practiced between the time you first began until now?
E-mail. Everything happens much faster.
15. Litigators tend to travel a great deal. What are some of your favorite cities or places, and what fascinates you about them?
I love Boston: the history, the food, and the intellectual community. There is just something about it that I love. I also handled a case that required numerous trips to Vancouver, BC. I really enjoy that part of the world.
16. Have you ever had a case in which your opposing counsel went over the line ethically in representing their clients' interests? How did you deal with it?
Once. I talked privately with the lawyer in an attempt to reach a solution. It did not work out, the conduct continued and I reported him to the Bar.
17. What intrigues you about prior generations of trial lawyers?
They had such a great life, things were simpler, and so much more unfolded in the courtroom, rather than during pretrial discovery. There was less paper and more advocacy (at least it seems that way).
18. What is your greatest extravagance?
Two (2) John Deere tractors.
19. If you could meet anyone from history, who would it be, and why?
Abraham Lincoln. His life, his political career, and time as a country lawyer all intrigue me. I also find it fascinating that he dealt with real life "human" issues in his own life, including deep depression, and was able to overcome it and do great things.
20. 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. In a word, sentence, or paragraph, what, in your opinion, is the significance or importance of furthering diversity within the profession of law and throughout our system of justice?
Our system of justice and our profession must reflect those...all of those... who are affected by it. Lack of diversity is inconsistent with the rule of law and the very ideals that our system of justice, and we as part of that system, must strive to achieve.