Be the Human in the Courtroom, Not the Lawyer, with Randi McGinn

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Welcome to another episode

of Verdict Academy,

where we bring you the best trial

lawyers in the country to share their top

three trial tips. I'm Kevin

Morrison in San Francisco,

and this episode's guest is Randi

McGinn, a partner in McGinn, Montoya,

Love, Curry and Seavers in

Albuquerque, New Mexico.

I know we overuse the word honored, but

I am truly honored to have Randi who.

If there was a Mount Rushmore for

trial lawyers, she'd be on it.

Randi started her professional career as

a journalist where she learned the art

of storytelling.

She then went to law school and discovered

that she was meant to be a trial

lawyer, which she describes

as storytelling on steroids.

Randi's been helping her clients for

over 40 years and has tried over 130

civil and criminal cases to verdict. Her

exceptional trial results are numerous.

Here are just two. In Southern New Mexico,

she convinced a jury to award

$67 million against BioTronic for

implanting medical devices and

she secured a $42 million verdict

against a semi-trailer manufacturer

for the family of a 16-year-old boy who

was killed in an underride accident.

Randi's a member of the

Inner Circle of Advocates,

where she served as its

first woman president,

as well as the International

Academy of Trial Lawyers,

the New Mexico Trial Lawyers Association

where she served as its president and

the American Board of Criminal Lawyers,

among many other organizations.

She's a teacher and she's an author, and

she wrote Changing Laws, Saving Lives:

How to Take On Corporate Giants and

Win, which is published by Trial Guides.

Randi McGinn, welcome to Verdict Academy.

Thanks for having me, Kevin.

It's an honor to be here too.

I'm delighted to have you.

The format of the show is three trial

tips you are going to be sharing before I

get into those. I'm curious, you've

been doing this over 40 years.

You are pinnacle of a

profession and you're a woman,

was even rarer than it is today.

How did you get the Kahonis?

I'd like to see the ovaries,

Kevin. I'd like to say the ovaries,

that I have the ovaries to do this.

Fair.

When I started, there were

really no women trial lawyers.

There just weren't any. There were about

a dozen of us. In my law school class,

it was half women,

and there were about a dozen of us that

were going to all be trial lawyers.

And over time, I ended up being the

only one left being a trial lawyer.

And part of that I attribute

to, at the time that I came up,

women weren't allowed to play sports.

And the only place women were allowed

to compete was in the classroom where if

you worked hard enough, you got an A.

And so the other 11 women who were sort

of with me and all wanted to be trial

lawyers didn't have the experience

of learning how to lose.

And if you didn't get an

A, it was your own fault.

And almost every one of them quit

after they lost a case because they

internalized it so much and had

learned how to lose. And fortunately,

I ended up playing tennis on the boys'

tennis team because they didn't have a

girl's tennis team thanks to Nancy

Lopez who was from New Mexico,

the golfer from New Mexico,

who filed a lawsuit to allow girls to

play in high school and won that lawsuit a

year before I started playing

tennis on the boys' team.

So I learned how to lose and it didn't

bother me as much as the other women that

were coming up. And I

was sorry to see them go.

And now it's terrific because women are

in sports and women know how to lose and

they're turning out to be some of

the best trial lawyers out there.

For sure. We've got different

skill sets that are, I think,

more conducive to connecting with

people, more empathetic as a rule.

I hate to stereotype. I've seen it before,

and I'm sure you absolutely have

that in spades. You're a storyteller.

Obviously you're drawn to telling stories

since you're interested in journalism

and then law school, like

my introduction discussed.

Is that when you learn that you're

going to be a courtroom lawyer,

like a trial ad class

in law school, Randi?

That's exactly it, Kevin.

I went actually for the most

morally bankrupt of reasons,

which was a newspaper reporter and I was

sending in spec articles to magazines

and getting immediately

rejected. And I said to my uncle,

they're not even reading

my stuff. He said, "Well,

if you had an advanced degree,

they'd read your stuff." And so I looked

at med school, no, too much blood.

Said, "Oh, well, law

school, that sounds easy.

I'll get a law degree." People will

read my stuff. And then by accident,

got there and found out it was where I

was meant to be that really you got to be

everything. Not only do

you get to write the story,

but you get to star in it and

direct it. And like I said,

if you do it really well,

a kind of verbal alchemy happens where

you turn somebody's story into justice,

right?

So it was the best of all possible worlds.

Yeah, it's a special thing,

a special gift you have.

I'm so glad you used it for your clients.

Let's talk about those three tips.

Tip number one, be your

genuine self, Randi.

Can you tell our audience about that?

Yeah, Kevin. And after I came up

with that as a tip, I thought, oh,

that sounds so touchy feely.

Really what you want to do is not

be the lawyer in the courtroom.

You want to be the human in

the courtroom. Because people,

when you do a survey and say, "What do

you think of lawyers? What do you think?

" They say, liar, cheat, ambulance,

chaser, whole list of pejorative words.

And interestingly, when you ask them,

what would you like lawyers to be?

The answer almost universally is,

I'd like lawyers to be a teacher.

And if they add an adjective, they say,

"I'd like lawyers to be a caring teacher."

And part of the problem is they don't

really teach you to do that in law school.

They teach you to be aggressive and

do all this stuff. That's by the way,

how I started too. It was not my

genuine self when I first got out.

They put this lawyer into your head

about the lawyer you're supposed to be.

And when I first started,

there were no women lawyers.

So I dressed like all the guys.

I had a black suit and a navy blue suit

and I even wore those stupid little

women ties that they used to have

because I want to look like the guys.

And then I put my head in this very

severe bun like this because I wanted to

look like a guy. Finally,

about three years in,

I saw myself on TV in a case I was trying

as a prosecutor. I said, "Oh my God,

I look like my grandfather for God's

sake," and started trying to find a way to

be myself in the courtroom. And

that has had wonderful results.

I don't wear suits when I'm doing jury

work. I wear what is my natural style,

but turns out to be sort of this teacher

thing that I found out years later,

which is dresses and like a sweater.

All the teachers we had

in elementary school,

that's the kind of stuff they wore.

And women have a tremendous advantage

because we get to wear a lot more

different kinds of

things than the guys do.

The guys kind of have to wear a student

court and you don't have to do that.

And so the poor jury comes in and

they've seen this stuff on TV,

but they don't know what they're doing

and they're so scared and they're looking

around for somebody to explain what's

going to happen to them and they gravitate

towards the person who looks like them

or looks like a teacher or looks like

someone they can talk to,

not the person in a three-piece suit

using all these big fancy words and

highfalutin terms. That has been

tremendous over the course of my career.

I mean, I've had wonderful reactions from

jurors at one point when I was a young

lawyer and your first couple trials,

either side objects and objects

and objects to throw you off.

About half a day in, finally,

one of the jurors stands

up with this guy objecting,

objecting to throwing me off and says,

"Now you just leave her alone."

I had an older woman who

probably didn't have the chance to be a

lawyer during her day when I was doing

closing argument and

getting close to the rail,

just lean out of the jury box and sort

of pat me on the arm and you think,

"Great, at least I've got one.

I've got one." And then one

jury in federal court went

out and bought me a gift

in the middle of trial. Thank God they

did not give it to me during trial,

Kevin, because I think you'd

probably have to report that,

wouldn't you? They waited and

they gave it to me after trial.

So that kind of openness I

think is important and having it

not be about you,

but be about the jury and helping

them figure out what they need to do.

I will say it's particularly hard for

young people because you don't know what

kind of lawyer you're going

to be in the courtroom yet.

You don't really know who you are.

And so it's okay to try on different

things that you see other people do

and then see if it works for you or

not. But if it doesn't work for you,

everybody can't be Jerry Spence.

And so if you try some tactic

and it doesn't feel right to you,

reject that and look for the way that

you can communicate with the jury.

Yeah, resonates with me. I know, I mean,

I'm totally comfortable with my

skin now and it's been a game.

When you get older,

you just frankly stop caring while other

people think about you and you're more

comfortable and you know who you are.

But not in the first couple of trials.

I'm scared to death. I don't know

what to do. How do you do this?

So when did you get comfortable after a

certain number of trials and how would

you just, or younger lawyers,

10? How do they do it?

10. 10 trials. Okay. 10 trials. I

think it takes 10 trials. And sadly,

for young lawyers, there aren't

that many trials anymore,

particularly in the civil arena.

So if you really want to

become a good trial lawyer,

you have to go be a criminal

defense lawyer or a prosecutor

because that's where

you get a bunch of trials. That's

right, Kevin. The first 10 trials,

you're just saying, "Oh my

gosh, what happens next?

Is this the time when the

directed verdict happens? Oh,

am I supposed to be ready for directed

verdict?" And you hear them say something

and you say, "I know that's an objection,

but I can't think of objection."

What's the objection?

The good news is as you do the 10 trials,

you'd figure out when you got home,

"Oh, I know what the objection is now."

And what happens as you do 10 trials,

it gets closer and closer and closer to

the courtroom. Now you remember it when

you get back to the office.

Now you remember it when

you get to the parking lot.

And finally after about the 10th trial,

you show up and you have the

objection in the moment of the trial.

And so I think it takes about 10 just

so that you know what the rules are and

what's going to happen next.

Yeah, definitely. Obviously you

got to know the rules. Also, again,

being comfortable in your own skin

and remembering it's not about you,

it's about the jury. You

start to think it's about you,

and that's never a good place to be.

And you lose your nerves and you become

much more comfortable. In my opinion,

that's how I did. This is about

delivering information to the jury.

And the other thing that helps,

although it's so painful at the time,

is you have to screw up really

big. I mean, we're all worried.

We're all A type personalities and we're

worried about screwing up, growing up.

The only way you get over that is you

screw up really horribly and you go home

and you put the covers over your head.

The next day the sun comes up and

you wake up and you realize, "Well,

I made a complete fool of myself

in court yesterday, but hey,

I've lived to do another case

or to come back again and do

better today." And so

having the worst happen,

finally get over the fear

of how bad can it be.

They're going to haul you off to the

gulag when you screw up in court there.

You get another chance to come

back and do it better next time.

Yeah, nobody died. Life goes on.

That's it.

All right. Point two, trial tip

two. The best story wins an opening.

Oh yeah. People think if I only have

the right evidence or the right facts,

it is all about story. And when you

think about it, it makes sense. I mean,

it's the only way you break through to a

jury who from the time they were little

kids had been bombarded with

people trying to sell them things,

advertising coming at

them from all directions,

television and radio and now on

their phones and on their computers.

And so the only way to survive in our

society is to put up all these barricades

to people trying to sell you things.

And now you're going to stand up

and try to sell them your case.

And remember, they're just

trustful of lawyers to begin with.

And so you have to do what advertisers do.

The very most effective ads

are those that tell a story.

One of my favorite examples of that is

the little kid in the Darth Vader outfit

who's going around the house and trying

to use his powers on the cat and the

dog and nothing's happening,

nothing's happening,

nothing's happening. And he finally walks

out to his dad's car and puts his hand

up and the car starts because his dad's

inside and pushes the button and he

thinks he has.

That just sucks you right in because

you're interested in the story and this

little kid is so cute and

all that kind of stuff.

And that's how Volkswagen

gets to your heart.

The same thing happens in trial.

If you tell the best story,

you win the case.

And research studies show that

people decide the case 75% of the

time the same way they would decide

it after opening statement. I mean,

75% of the time.

So you can win an opening statement or

you still have a chance to screw it up

and lose it. That's how I think of it.

And so you have to be a student of

storytelling if you're going to be

a great trial lawyer. And that means when

you see a movie that affects you in a

powerful way,

you have to break down what was it

about that or a book that you read,

how was it that they captured

me in such a powerful way?

And there's all different kinds

of ways to tell a story, right?

You have to figure out where

you're going to start the story,

which always makes a difference.

Do you start at the very beginning

and do it chronologically?

Do you start at the end and go

back and then tell them the result?

And then here's how that all

happened. Do you start in the middle?

And then you have to decide whose

perspective you tell it from because that

makes a huge difference too.

Do you tell it from the perspective

of your surviving client?

Do you tell it from the perspective of

your surviving client's mother who got

the phone call that all of

us are terrified of getting

that your kid has been in

an accident and we don't know if they're

going to make it. That may be even more

powerful point of view

to tell the story from.

Just there's so many different ways.

The way I tell my book, Changing Laws,

Saving Lives is from reading a book

by Sebastian Younger called The

Perfect Storm, where if you've seen the

movie, The Giant Wave and they all die,

that's the story.

The way he tells the book is in a way

that is important for trial lawyers

because we have in cases,

particularly med mal cases or other

cases with complicated mechanics,

our tendency is to try to explain

all the boring stuff altogether.

And you lose the jury while

you're explaining how the

thing works or the devices

work or that kind of thing.

And what Sebastian Younger does is he

starts this story of a bunch of fishermen

who are getting ready

to go out sword fishing,

what happens and they end up on that

giant wave and all die. But in between the

chronological story,

he drops the technical information that

you want to use and he doesn't give it

to you all at once. So he

starts the chronological story.

And then when you need to

know how swordfishing works,

he drops in some technical

information about swordfishing.

And now he goes to this chronological

story and you're meeting the guy's

girlfriends and they're saying

goodbyes. They get on the boat.

And now you need something else about how

boats roll over in the storms and what

kind of buoyancy they have. And

he gives you that technical piece.

Then he goes back to

the chronological story.

It's how I wrote my book to

start a chronological story

and drop in how lawyers

investigate, how lawyers do this,

but continues the chronological

story so it keeps your interest.

And that's a great technique for trial

lawyers to tell the story and then just

give a little piece of

technical information at a time,

go back to the chronological story

and give another technical piece of

information so that you don't lose the

jury. That's the kind of stuff that I do.

When I see something that

really resonates with me,

I try to figure out how they

made it such a powerful story.

I'm not drinking whiskey for your

viewers. I'm drinking tea. Okay,

just so you know.

No judgment here, Randi. No judgment.

You're obviously an

elite level storyteller.

How do you decide where to start

the story or is it just gut?

Is it thinking about a lot about a deep

thinking? How do you make that decision?

Now it's a lot of deep

thinking, but in the beginning,

we would actually put together stories

with different starts or different points

of view and then focus group them and

see which one was the most powerful and

which one resonated with

the jury the most. I mean,

I think now after all this time, I have

a feel for how the story should go.

But at the beginning, you don't know.

And so you want to focus group test

it and see which one works best.

Do you subscribe to the

notion that as a plaintiff,

you should make sure the defendant

starts to see the errors of the corporate

defendant first before

they're going on damages?

Or are you willing to start a

case, the story of the case,

how the family survived the death of

their child or something like that?

Do you have any thoughts on that?

As a general rule, I put

their conduct before damages.

But there are cases in the right

case where they already know that my

client's in a wheelchair because they

saw them at invoir dire, for example.

And I may, in the appropriate case,

just drop that fact out and then

go right back to how this happened.

How did this person who was vibrant

and alive and all this stuff end up the

quadriplegic?

Let's talk about how that happened and

then go right back into the defense

conduct because that's the most important.

One of the greatest ways to do that,

of course, is through two track

storytelling where you start off,

the happy family is getting

ready to go on vacation,

and now you go to this

guy is drinking in a bar.

He's had two martinis and he gets up and

goes to the bathroom and he staggers on

the way to the bathroom and then comes

back to the bar and has another two

martinis. And now we go back to the

family who is setting off on the road and

they're going to Disneyland. It's

the first time they're going to go.

And then we go back to the guy who's

drinking and he gets up and says, "Oh,

I'm going to go.

" And he's slurring his words and he

grabs his keys and nobody tries to stop

him. And then you go back to the

family driving down the road.

It's the Jaws technique,

right? That's exactly right.

And so the jury is feeling that

drama and wanting to stop bartender

stop him and take his keys away before

he gets out or call the cops or do

something before they kill this family.

They know what's coming because

they've seen jobs, right?

That's a wonderful way to tell a story

too and to build up the case and the jury

understanding where you're sort of

getting both in at the same time, Kevin,

you're talking some about the people who

got hurt and you're talking about the

persons who had did the misconduct too.

And then third, go to your client's

home. Talk to us about that, Randi.

At the beginning, because you're

a lawyer, when somebody's hurt,

you make them come to your office and

you sit in your office and somebody told

me you need a really big desk so that

makes it sound like you deserve your fee.

And that was terrible advice. I mean,

the truth is you cannot

convey your client's pain

without going to their house,

seeing what their life is like since

the collision or whatever it is has

happened or malpractice has happened.

Is at a client's house

last about 10 days ago,

person who suffered malpractice made it

so he couldn't walk anymore because they

had to sort of a malpractice and a

product defect case where he had a

hip that had metallosis that infected his

hip and they had to take his whole hip

out and he had to sit without a hip for

a year while the infection went away. I

went to his house that he and his

wife had bought their dream house in

retirement, which is down in a mountainous

community down south in New Mexico.

It's a four-story house. Their

bedroom is on the top floor.

He can't get up there and hasn't

been able to do that for a year.

And so every night he has a La-Z-Boy

chair on this one level that he can

navigate around where he puts his La-Z-Boy

chair down and sleeps right there on

the La-Z-Boy chair and his little dog

has a bed right next to him and the dog

stays down there with him.

I would not have realized that if

I hadn't gone to his house and seen

this wonderful patio they built

out back with a grill and all that,

he can't get out there because it's

got steps down to that. He can't,

for the last year has not been able to

access any of this house that they built

to retire in.

And you don't know that if you don't go.

Even if somebody has died,

that's even more profound because you

see in the house all of the things people

have about them, awards they've won

or pictures of them. And the worst,

of course,

is when somebody's child died because

you go to their house months after the

child has died. In one case where this

little girl was killed at the hospital,

four years old, her parents

didn't touch anything in her room.

So there was the easel where she'd been

scribbling and the scribbles are still

on the easel and the little paper she

crumbled up and threw on the ground still

there six months after she's dead,

nothing touched. All of her toys,

all of her toys, this sort of shrine

to their four-year-old daughter.

Even after we got the case resolved,

I think they never moved out of that

house because they'd have to shut down the

room where their daughter last lived.

And so that tells you something about the

profoundness of people's grief that

you don't get sitting in your office

taking notes. Even if you ask them,

"Tell me how's this affected you?

" They probably wouldn't even tell you

that they haven't changed the room and

you wouldn't know that

unless you went there.

We're all so busy, right? Honestly,

a lot of emails and phone calls and

you're busy and it's like, "Oh gosh,

I got to leave the office today and go

to my client's home and that could be a

half day or day out of the office,

God forbid." And so there's some initial

resistance sometimes to taking that

kind of time. Every single time I do it,

I've driven back to the

office a way better advocate,

a way better person than the guy who drove

to the client's home, 100% true. Yes.

And this one to go down there took me

three hours down, three hours back, right?

Could have sent somebody

down with a video camera.

I could have sent somebody

else to scout it out for me,

but standing there in the room,

you feel they're suffering in a way that

you don't understand if you don't go

there. And the same is true of not

just going to your client's house,

but you also need to go to the

scene of wherever this happened,

which so many people say to me,

"I just had my expert go out,

take a bunch of pictures of the

scene of the crash." No, no, no.

You see things there that you

would not see if you didn't go out.

You got to go to the scene of

where all this happened too.

Always, because then when you're arguing

the case or talking about the case of

premature,

you can actually imagine yourself there

and you can paint a much better picture

than what's available even off

Google Earth or whatever. Yes.

Google Earth is not the

same. You got to go there.

Not the same. You got to go there.

Yeah.

Wow.

And let me tell you the example

that we had a kid killed.

They built our jail way outside of town

and the police were really upset when

they built the jail way out

of town because they had

to drive 17 miles away from

town to put somebody in

jail. So they had to leave.

They'd be gone off the beat for two

hours, off their shift for two hours.

And so as their own silent protests,

when they got off on this two lane

frontage road to go to the jail,

they just sped and ran all the stop signs.

There were stop signs

in two different places.

They just ran them because

they were ticked off that

they had to leave the beat.

And they did that for a couple years

and people complained about it and still

nothing got done because the jail was

open twenty four seven, 24 hours a day,

seven days a week.

At nighttime when they were speeding,

when they came to a stop sign,

the way they'd tell if a car was coming

is they'd turn their headlights off to

see if there were any headlights

coming across the road. So my kid, 22,

comes out of the racetrack,

which is out there,

all these things that nobody wants out

the noisy racetrack is coming out at

night and goes to the stop sign and looks

to the left and doesn't see anything

because of course their headlights are

off and pulls out from a stop sign and

this guy hits him at like 75,

80 miles an hour and knocks him

sideways up the road and kills him.

We went out to that scene and as we're

standing there at this stop sign,

we're watching cop cars just run

the stop sign, run the stop sign,

run the stop sign. And so we put a video

camera on the track premises to record

91 days of police cars running the stop

sign. Even after the kid was killed,

they kept doing it. I mean, that

was powerful evidence at trial.

So we wouldn't have known it

had we not gone out there.

Well, as expected, the

half an hour flew by.

I do want to give you

one last chance to ...

Any parting words to younger lawyers or

folks who want to be trial attorneys is

from Rainy McGinn is what

they should do or ...

I just think it's the greatest

job in the world. I mean,

I love being a trial lawyer.

The thing that we love the

best is that in our cases,

we don't just ask people for money.

And we find that particularly when

our client's loved one has died,

it's never just about the money,

that they want some change

so that somebody else isn't

killed and has to suffer

the way they do.

And so what we do in our cases is

make an offer that goes something

like this, that we will settle for

$5 million if you made no changes,

and we will settle for two and a half

million dollars if you make the following

five or 10 changes in your

behavior. And interestingly,

we've had about 40% of the companies or

governments take us up on the changes

and 60% of them say, well,

if we make all those changes,

if we have to train people more,

if we have to do all this stuff,

that's going to come out of our pockets.

And if you hit us for a big verdict,

the insurance company's going to have

to pay. So about 60% of them say,

"We' start at the higher number because

we're not going to make any changes."

And when that happens,

now you don't have any qualms about taking

it to them at trial and hitting them

for as much money as you possibly can.

They deserve it because if

they were a good company,

they would've fixed it already. But the

other 40%, we've done wonderful things.

We've gotten retraining in hospital

situations where they made a medical error

to retrain people so they won't miss

it again. We've had monuments to kids,

tributes to people who died. We've had

warning labels put on bad products.

I mean,

all kinds of things that hopefully someday

will put us all out of business and

make the community safer.

That's the best thing of all.

That's our goal, isn't it? Randi McGinn,

thank you for being a guest on

Verdict Academy. And more importantly,

thank you for all the work you've done

for our society, for our community,

and for your clients.

And you're welcome, Kevin.

Thank you for listening

to Verdict Academy.

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