20 Questions with Thomas Banducci
1. In 2007, you secured a $63.6 million jury verdict, the largest in Idaho history. In doing so, you became part of a club of LCA Fellows that hold a similar distinction in their own jurisdictions. Since your first case some 30 years ago, what do you consider trial lawyers' biggest challenges to be these days compared to three decades ago?
I suspect that the challenges inherent with trying a long, complicated case remain the same: keep it simple; stick to your themes; tell the story of your case in a way that resonates with the jury. Treat everyone in the courtroom (bailiff, witnesses, jurors, judge, paralegals...everyone) with respect. If I'm going to get aggressive with a witness, I better be sure that I have the jury's permission. On the process side, assure that your handling of exhibits appears effortless. Nothing says "lack of preparation" like a long pause while you hunt for a document or exhibit number.
2. You followed your record verdict with another multi-million dollar result in 2010. When you are in the final stages of preparation for a trial of such magnitude, how do you focus on the trial at hand? For instance, I used to have a partner that would rent a hotel room a week out and simply hibernate as the trial date approached. So, is room service the standard as you gear up for battle?
In days gone by, I would consider getting a hotel room, primarily at the request of my spouse. These days, I count on having the normalcy of dinner at home, even during trial. We are always tempted to work ourselves into a frenzy during trial. This can be a mistake if we take our exhaustion and frazzled nerves into the courtroom.
3. Tell us about your career path.
Upon moving to Idaho from the Bay Area, I went to work for a Boise law firm that, at the time, was one of the largest firms in the state. My recollection is that I was number thirteen on the letterhead. After eleven years of practice with the firm, I concluded that there was real opportunity in Boise for regional or national firms who could deliver specialty expertise to the companies headquartered here. I approached Stoel Rives (Portland, OR) with the idea opening a Boise office. To my amazement, Stoel was interested. I opened the Boise office of Stoel Rives in January 1991, where I served as managing partner and/or head of litigation for about fifteen years. During that time, the office grew from two lawyers to about twenty-five. In 2005, I left Stoel to start a litigation boutique practice. Banducci Woodard Schwartzman currently has three partners and seven associates.
4. Currently in our profession, large and historically stable firms are folding and law school applications are down 11%. The LCA's research indicates this is the result of the overall economy and not related to any fault of the profession itself. What, if anything, might lawyers do to effect positive changes that might moderate this rather, as a banker friend of mine says, "bumptious" economic time in history?
Our job is to provide value in the work we perform for our clients. Just as our clients have been forced by economic times to streamline their operations, law firms need to assure that the work done on projects is efficient and necessary.
5. At the LCA’s Miami Conference several years ago, we asked one of our Fellows to speak on the evolving problem of associate retention. As we all know, the retention of high quality associates can be a challenge in the law firm environment. How does Banducci, Woodard, Schwartzman manage associate development and retention?
We have incredible associates at BWS and have had substantial success retaining them. I asked a couple of our associates why they "stick around." The common theme in their responses had to do with firm culture: we give credit where it is due, and we respect the opinions and perspectives of our younger lawyers. We work as a team and give as much responsibility to an associate as she/he is willing to take on. We include associates in hiring decisions. We share information on financial performance. Importantly, we recognize that there is more to life than the practice of law. In return, we ask for hard work, an entrepreneurial spirit, and a similar level of respect for all lawyers and staff within the firm. Having been a partner in a large firm, I realize that these "cultural objectives" are easier to attain in a firm of seven attorneys.
6. What impact do you think the discovery process has had on the number of cases being tried?
In the sorts of cases I handle (complex commercial), discovery is usually, to say the least, thorough. Typically, thousands of documents are exchanged, counsel employs the maximum number of interrogatories allowed by the Rules, and deposition discovery is extensive (and costly). The good news is that litigants will likely understand the nuances of the case and the risks of going to trial. The bad news is that this comprehensive discovery strategy is often undertaken when the matter could be settled early, without substantial discovery expense. While the discovery process has allowed litigants to understand the merits of the dispute, my experience is that cases go to trial because the parties disagree on fundamental concepts (e.g., whether one party has taken advantage of the other), and no amount of discovery will dissuade the parties from trying the matter.
7. 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?
Since I can remember, my mother (exasperated by my tendency to argue every issue with her), would exclaim that I could "argue Christ off the cross." I grew up assuming that the only kind of lawyer was a trial lawyer. Isn't that right?
8. What do you consider your most unusual accomplishment?
While at Stanford (as a member of the Stanford Band), my two friends and I came up with the idea that a tree should be the university’s new mascot. The Stanford Tree was introduced at a 1975 football game as a joke. Who knew it would catch on?
9. 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.
My mentor was a superb trial lawyer and possessed a wicked sense of humor. Over the years that we tried cases together, Warren Jones would drop an occasional pearl for my consideration. For example, cross examination was like a "bucket of hand grenades-you need to lob them before they explode on you." Or (my favorite)"never lie to the court." This sage observation was usually made after opposing counsel had stretched the truth and was caught red-handed by the trial court. Although Warren's advice is obvious, I am amazed at how often lawyers will "misinterpret" case authority to support their position. (Warren Jones is now an Idaho Supreme Court justice.)
10. What has been the biggest change in the way law is practiced between the time you first began until now?
Without a doubt, technology has had an enormous impact on my practice. I started practicing in 1979. Carbon paper was still in use. The last case I tried in federal court was completely paperless. All pleadings, briefs, exhibits, and orders were electronic. My entire case (deposition summaries, examinations, selected exhibits) was loaded on my iPad.
11. Litigators tend to travel a great deal. What are some of your favorite cities or places, and what fascinates you about them?
I have had the opportunity to try lawsuits in at least fifteen states. The places I enjoy the most are typically defined by the people I encounter. Generally speaking, people are easier to meet in smaller cities and towns. Although not necessarily exotic, I would have to vote for places like Tucson, AZ; Missoula, MT; Pasco, WA; and Pocatello, ID.
12. 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?
This is a tough question. I think most trial lawyers will see, from time to time, conduct that "crosses the line." Typically, I subscribe to the view that counsel engaging in such conduct is either going to "step on his/her own air hose" or the court will figure out who is the more credible counsel (back to the "never lie to the court" truism).
13. Has trial law’s golden age passed or have we yet to reach it? What intrigues you about prior generations of trial lawyers?
If "golden age" means greater collegiality between bench and bar, fewer rules, less discovery, and shorter trials, then the golden age has passed. If the notion of "golden age" includes serving public interests, respecting diversity, and creating greater access to the courts, we have yet to reach the golden age.
14. What is the first thing that comes to mind if I ask, “If you were a judge, what would you do differently from what you deal with most frequently in your practice before presiding jurists?”
I'm lucky to practice in a state where the judges are quite good. More often than not, they are prepared and respectful of counsel. Sometimes, however, it seems that oral argument—even on important substantive motions—is ceremonial. I prefer that judges engage counsel with questions that challenge the analysis in the briefing.
15. What is your greatest extravagance?
Two things come to mind: my children's university tuition and the Ducati motorcycles I bought my two partners.
16. What object in your office serves to re-energize you when your mood needs an adjustment?
Actually, I escape to my "second office": a coffee shop across the street from our office building.
17. If you could meet anyone from history, who would it be, and why?
I would like to meet the inventor of the Thermos, an astounding device. When you put cold liquid in it, it stays cold; when you put hot liquid in it, it stays hot...how does it know?
18. 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?
Our profession and legal system should be a reflection of the society they serve. If the law and its institutions fail to take into account the values and perspectives of the people who make up that society, it loses legitimacy.
19. What trait do you most value in your friends?
20. What is your motto?
Our law firm motto is "habebum globi". You'll need to see our firm logo to get the play on words. (https://www.bwslawgroup.com/)