20 Questions with John Boswell
1. Years ago, in Texas Monthly Magazine, I read a story about someone who had been "Good Ole Boyed." That is, they underestimated their opponent in a business transaction because of his unassuming, good natured demeanor. I have heard you speak on a number of occasions now, and more so, I have become acquainted with your methods and successes in the courtroom. How often would you say your gentle ways outside the courtroom have lulled your opponents into underestimating your prowess before juries?
To be successful, a trial lawyer has to develop his or her own style. You have to also realize that opposing counsel in every case has a different style and a different personality that has to be dealt with. Trial lawyers who are loud, abusive and contentious usually do not fare very well. My style has worked well for me. I have been honored by the 11,000 member Houston Bar Association for my professionalism.
Having tried over 300 cases to jury verdict and having achieved a successful result in over 90% of those cases, I do not think any of the trial lawyers where I practice would underestimate my prowess before juries.
2. How did your early military service serve you later on in becoming a preeminent trial lawyer?
I obtained my undergraduate degree at the University Of Houston and while working on my MBA I had an opportunity to join the Navy Flight Training Program. After four months of basic training under the supervision of Marine drill instructors, I received my commission and went through basic and advanced flight training as an officer. There were no attorneys in my family and I had no thoughts whatsoever about ever being a trial lawyer. However, after receiving my designation as a Naval Aviator, I was assigned to an all weather attack squadron and after a few months I was asked if I would like to attend the Naval Justice School so that I could then become the legal officer of the squadron and prosecute small court martial cases. I then attended the Naval Justice School and returned to the squadron where I acted as the prosecutor in small court martial cases in our squadron. As my reputation became better known, I then defended enlisted men in the two other squadrons at our Naval Air Station.
Being in an all weather attack squadron and successfully flying off aircraft carriers at night and in bad weather gives you are great deal of confidence. You have to be extremely cautious to not cause an accident that would cause injuries or death to you or your crewmates. As a result of that experience, I have learned not to worry prior to, during trial or while the Jury is out, because worry is debilitating. I know that I have prepared the case well, the presentation has gone well and I rely on the Jury to render a fair verdict. At any rate, the only thing that is going to happen is an award of money or property, and that is a very different result compared to my prior experiences as a Carrier Based Naval Aviator.
3. What has been your most unusual courtroom experience?
I have had many unusual courtroom experiences during my 40+ years of active trial practice. A couple of illustrations are as follows:
The asbestos litigation began in Beaumont, Texas. I was one of the original asbestos defense lawyers and have tried over 150 cases involving individuals who had or claimed to have exposure to asbestos. In a federal court trial in Galveston, the plaintiffs had as their economic expert, a distinguished professor from Rice University in Houston. One of my assignments was to cross-examine the plaintiff's economist. The plaintiff attorney finished his direct examination of their expert economist witness and I was able to begin my cross-examination late in the afternoon. After a series of seemingly routine questions, the day ended and the federal judge instructed the plaintiff's economist to be back at 9:00 am the next morning so that I could complete my cross-examination.
The plaintiff's economist failed to show up as ordered by the federal judge at 9:00 am so that I could complete my cross-examination of him. The judge instructed the plaintiff attorney to contact the plaintiff's expert witness and instruct him that if he did not appear in the courtroom within one hour, he would be found in contempt of court and would be arrested. Plaintiff's counsel contended he did not know how to get in touch with him. I advised the judge that I knew the plaintiff's economist and had his home phone number and his office phone number. I called him, in the presence of the plaintiff's attorney. He said that overnight he realized that the seemingly innocent questions I had asked him the day before were designed to completely destroy him the next morning and that is why he did not reappear. I assured him that I would treat him professionally while he was on the stand, but if plaintiff's counsel had not furnished him with sufficient and accurate information on which to base his opinions then I would establish that for the judge and jury. The plaintiff's economist returned and in a continuation of my cross-examination, he recanted all of the testimony he had given on direct examination the day before and testified that the information he had received from plaintiff's counsel was not complete or accurate and therefore, the jury could not rely on the opinions he had given on direct examination. Result, the jury brought back a verdict in favor of the defendants.
While defending a case in a high verdict area in Texas, before a very plaintiff-orientated judge and against five of the top plaintiff attorneys in Texas, one of the plaintiffs' attorneys was having difficulty in proving up the medicals on a mother and her small child. The defendant's truck was completely across the two lanes of a rural road at night without any warning lights and the driver was an ex-convict from out of state. While I usually do not object much during trial, I made objections to the plaintiff's proof of medical expenses on the mother and the child. The judge called plaintiff's counsel and me to the bench and explained to plaintiffs' counsel what he had to ask in order to prove up the plaintiffs' medical expenses. We returned to counsel table. The plaintiff attorney then asked some more questions and I objected again. The judge called us back to the bench again and instructed the plaintiff attorney what questions he needed to ask to make the medical expense testimony admissible. While walking back to counsel table, I whispered in plaintiff's counsel's ear (out of the hearing of the jury or the judge), "you do not know how to do it, do you?" The plaintiff attorney then lost his cool, stood up and in a loud voice asked the court if he could be excused from the courtroom and that he was so emotionally upset that he could not continue and he wished to turn over the remainder of the questioning of the witness to his law partner. The judge stated that he had never had a situation like this before, but he would grant plaintiff counsel's request and allow him to leave the courtroom. The second plaintiff attorney then asked the proper questions and all of the medical expenses were admitted into evidence. Plaintiff's pre-trial demand was in excess of $4 million, the offer was approximately $2 million. The jury verdict was $402,000.
4. Texas venues are notoriously disparate demographically. Do you adapt to the venue in which your case is pending or maintain a standard approach? In essence, do you adapt to your juries or tacitly ask the jurors to adapt to you?
Texas venues are notoriously disparate demographically. It is extremely important that trial lawyers learn how to adapt to the venue in which the case is pending. I have tried cases in many different areas of Texas. I was born and attended school in Houston until junior high. Then my family moved to Lubbock, Texas, where we had a farming and ranching operation. We then returned to Houston for my senior year in high school and then college at the University of Houston. I have relatives in many different areas of Texas including West Texas and East Texas and that has afforded me an opportunity to get to know the local people and prospective jury member's attitudes. In selecting my experts, I am always very careful to make sure that they are a fit for that particular venue.
5. What was your evolution toward litigation, and did it begin before, during or after law school? That is, did you want to be Perry Mason growing up, or did you want to become a trial lawyer after getting out of law school and reading contracts all day long for the first six months of your career?
After being discharged from the Navy, I returned to Houston. While attending the University of Houston Law School, I flew in the Navy Reserves in New Orleans, so I was able to continue both of my favorite past times. I took the Texas Bar Examination early, before graduating from law school, with the agreement with the dean of the law school that I would return and graduate. So when one looks at my resume, it shows that I was licensed to practice law one year before I graduated from law school. Some people think that is a typo, but it is not. We formed a law firm immediately upon being licensed to practice in Texas and began our civil trial practice at that time. In fact, I was named a partner in our law firm, Banister, Boswell & O'Toole, before I graduated from law school.
6. What impact do you think the discovery process has had on the number of cases being tried?
I do not know that the discovery process has had a substantial effect on the number of cases being tried. I believe that mediation and arbitration have had the greatest effect on the number of cases being tried. Most of our judges in Texas require the parties go to mediation before they will grant them a trial setting.
7. What do you consider your most unusual accomplishment?
When I started practicing the best way to get a lot of civil trial experience was to be an insurance defense attorney. Partners in our firm and I would try as many as 20 or 25 jury cases a year. That is not possible any more in the area in which I practice, but at the time, it afforded me an excellent opportunity to develop my style and understanding of how to try cases. As a defense attorney for many years and having tried some very large cases with outstanding plaintiff attorneys in high verdict areas in Texas, I have never had a jury verdict returned in any case I have ever tried in excess of $1 million. Additionally, I have never had a jury return a verdict for punitive or exemplary damages, treble damages or any other enhanced form of damages.
On the other hand, I always look for the opportunity to file counter-claims and have had extraordinary success in that regard. Recently, I obtained a $22 million settlement on a counter-claim that I filed in an oil & gas case, and prior to that several verdicts resulting in counter-claims for several million dollars in each case. Some of my trial lawyer friends, who know me best, are now claiming that I am a "closet plaintiff attorney".
8. I once practiced with a fantastic, though legendarily difficult trial lawyer named Olin Zeanah. One of my partners, 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 was pretty much self-taught. In my early years of practice there were several lawyers with some or the large law firms in Houston who sort of took me under their wing. After having tried a lot of cases during the first 10 years of my practice, I was offered a partnership at the largest law firm in Houston and have had numerous offers from other mid-sized and large law firms, but I have preferred to have my own firm, my own practice rather than becoming involved in the large law firm bureaucracy. Some of the large law firms in Houston have increased their hourly rates so much that they have lost most of their insurance practice and therefore, they are having difficulty getting enough trial experience for their young attorneys. One of the senior partners at one of the largest law firms in Houston called me and asked if I would tell him every time I was going to trial in Houston so he could send some of his young lawyers over to observe in order to improve their courtroom skills. We did that.
While it is something I never discuss with any of the judges or opposing counsel, about 25 years ago, then United States Senator Phil Gramm appointed a committee called the Federal Judiciary Evaluation Committee to assist him in making recommendations for federal judges and U.S. attorneys in Texas. I have continued to serve on that Committee during Texas Senators Hutchinson and Cornyn's service in the Senate. State court judges in Texas have to run for reelection which is time consuming and expensive and many of them would like to become federal judges, which is a lifetime appointment. I believe that many of our state court judges in Texas know that I am a member of that Committee and if they do not give all parties a fair trial and conduct themselves in a proper and professional manner that their chances of ever becoming a federal judge are not good.
9. What has been the biggest change in the way law is practiced between the time you first began until now?
The biggest change in the way law is practiced now is contending with voluminous and oppressive discovery matters. In a recent case I was handling for the plaintiff, a large firm in Houston was representing the defendant and in their response to a rather simple discovery request, they produced over 800,000 pages of documents, of which only 40 or 50 pages were relevant to our case. But it worked out anyway, we won. A high percentage of cases are now being settled at mediation and most courts in Texas insist on mediation before issuing a trial setting since it reduces their case load. Many cases are being arbitrated now, but as I mentioned at my presentation at the LCA's Renaissance Symposium VI at the Harvard Club, in December 2012, arbitration is not the most economical and expeditious way to resolve large complicated litigation.
10. Litigators tend to travel a great deal. What are some of your favorite cities or places, and what fascinates you about them?
I have served on the board of the Pepperdine University School of Law for over 25 years. The Pepperdine campus in Malibu, California, is consistently rated as the most beautiful college campus in the United States. I also try to attend as many of the LCA meetings as I can and those meetings are always scheduled at great locations. Visiting New Your City in December is always very enjoyable. I have had the pleasure of being one of the speakers at the Harvard Club for Symposiums VI, in Telluride, Colorado, for Renaissance Symposium VII, and again in New York for Renaissance Symposium VIII.
11. 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?
I have had a case in which opposing counsel went over the line ethically.
In that particular case, it involved the plaintiff attorney and one of the defense attorneys working out a secret agreement to cooperate on jury strikes. This would have given the plaintiff attorney 12 jury strikes and my defendants' only six jury strikes. I put the plaintiff attorney and the other defense attorney on the stand, had them sworn in, and questioned them in the presence of the judge. They denied that they had entered into such an agreement, but I had proof of the agreement. I did not take any affirmative action at that time because we had some favorable defense jurors on the panel and I knew that I could always raise this issue in the event of an adverse verdict. As it turned out, the case was settled after several weeks on an extremely favorable basis, so I took no further action.
12. What intrigues you about prior generations of trial lawyers?
The prior generation of trial lawyers that I have been associated with were true advocates, some were real characters, and most of them were very experienced trial lawyers, which is very different from the present generation of civil trial lawyers.
13. If you were a judge, what would you do differently from what you deal with most frequently in your practice before presiding jurists?
If I were a Judge, I would maintain strict decorum in the courtroom, timely schedule and rule on Motions and expedite trials and demand a high level of professionalism from all attorneys appearing in my Court.
14. What is your greatest extravagance?
Presently, travel. In the past, I owned my own plane and enjoyed flying it very much but I do not have it any more.
15. What object in your office serves to re-energize you when your mood needs an adjustment?
My mood rarely needs an adjustment. I do keep a note on my desk that says, "STRESSED IS DESSERTS SPELLED BACKWARDS". I like desserts.
16. If you could meet anyone from history, who would it be, and why?
Past Presidents Eisenhower and Reagan and Prime Minister Winston Churchill. Presidents Eisenhower and Reagan guided our country during particularly difficult times and did an outstanding job. There was only one Winston Churchill. He may have saved the free world while he was prime minister of the U.K.
17. 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, as well as the Diversity Law Institute's new website. So 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?
All ethnic groups, genders, ages, and religions should be treated fairly and equally in all circumstances.
18. What trait do you most value in your friends?
Honesty and integrity.
19. If you could not be a lawyer, what would you like to be?
I have never thought about this since I have enjoyed my profession as a lawyer so much, but I suppose aviation would be my second choice.
20. What is your motto?