Mastering the Art of Nimble Trial Strategy, with Wally Yoka

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Hey everybody. Welcome to another

edition of Verdict Academy. I am pleased,

honored to have one of my good buddies

and outstanding trial attorney Walter M.

Yoka, a/k/a "Wally" Yoka, as known

to his colleagues and friends.

Wally is the founding partner

of Yoka Smith in Los Angeles,

and I believe you just celebrated your

30th anniversary. Did you not, Wally?

Well?

Yeah, I missed that invite. I'm

still checking my spam folder.

I'm sure it's there somewhere. Wally is

a nationally recognized trial attorney,

primarily defending products,

cases, commercial disputes,

class actions and serious catastrophic

personal injury, wrongful death cases.

He is recognized by his peers and major

invite only organizations such as the

American Board of Trial Advocates,

where not only is he a member of that

organization, but he's a leader as well.

He's president of the Los Angeles

chapter. He was president of CAL-ABOTA

which consists of all the California

chapters of ABOTA plus Hawaii.

He's a member of the American

College of Trial Lawyers.

He's a member of the International

Society at Barristers.

I mentioned those organizations

because those are invitation only.

You have to be asked to join by your

peers after a significant vetting process.

Wally also, not only is Wally

an excellent trial attorney,

but he practices the highest level of

civility and it's demonstrated by two

awards.

He got the LA ABOTA Civility Award,

which we consider in San Francisco

our highest award, the civility award.

I'm sure it's the same

in Los Angeles. Also,

the LA County Bar Association honored

you with their civility award as I

understand it.

So he served on a number of

blue ribbon panels by Chief

Justice Ron George. Too many to

mention. He went to Cal State-LA,

which I think is super cool. I want

to talk a little bit about that.

And then graduated from Southwestern Law

where he is recognized as the alumnus

Wally Yoka to Verdict Academy.

Thanks for joining us, Wally.

Thanks for having me, Kevin.

Wow, what a great career. How did you

decide you want to be a trial lawyer?

That's not the first time

somebody's asked me that question,

so I have the same answer. I always

just wanted to be a trial lawyer.

I'm not sure I know why.

I think I was talkative

as a kid and I was an only

child and my parents just let me

talk whenever I wanted to talk,

and I think they found me

entertaining truthfully.

So you always knew it was in your blood.

You knew as a kid you wanted to do that.

There's no doubt. So when

I went to law school,

I mean law school was just a means to

an end for me. I started law clerking.

I was going full-time to law school

and I started law clerking in my second

year,

and I just fell in love with the practice

and I couldn't wait to get out of law

school.

Now did you know you wanted

to be a trial lawyer or you.

Just I did. You did.

And I was very lucky to have

been embraced by a great trial

lawyer,

a guy by the name of William Marshall

Morgan and Morgan Winslow and McNicholas,

a well-known trial firm that

unfortunately is no longer with us,

but he was a spectacular trial

lawyer and I just fell into it.

Really just luck.

Walked into my office one day and

asked me to do a job on a case,

and I did it and he liked it and

then he just took me everywhere.

Was that your first job as

a lawyer working with him?

First job as a lawyer, and

when the firm imploded,

that's when we started Yoka Smith.

Wow. So you've basically been

at two firms your career.

Exactly.

Yeah. You've had great mentoring then.

Great mentoring.

So how many times did you get to second

chair or attend trial with your mentor

before you got cut loose

and did your own thing?

Really good question.

I want to say I tried

maybe 10 to 12 cases with

him in a variety of cases. I mean,

from representing the Hari

Krishna to representing insurance

companies in bad faith cases,

I mean a remarkable set of cases

that just totally opened up

my eyes to being a trial lawyer.

Yeah, mentoring is so critical.

I know you've returned the favor

with a lot of partners in your firm,

and I know you're very involved

with ABOTA. I know Chris Fiza,

obviously Alice Smith

and others. I know you,

I'm sure you do a great job getting

them a lot of trial experience and have.

I do think, and I'm only going

to take part credit on that,

I think my partners really

are just spectacular at that,

and I think that's a big

thing we do. So right now,

both Alice and Chris are

in trial with associates.

Two different cases.

Two different cases.

Wow, okay. That's fantastic.

And so you're giving the youths an

opportunity to get into court and see what

trial's like.

And we have three women ABOTA members,

and we're very close to having a fourth.

And I guess I would include Judge

Lauren Lofton who was with our firm.

She became an ABOTA member

when she was here at our firm.

So I think we take a lot of pride in that.

And you should trials

becoming a lost art, isn't it?

Fewer cases are trying, it's

more expensive to try cases.

There's so much pressure,

alternative dispute resolution

judges look at you like, well,

how dare you come to my courtroom

and clog it up with a trial?

There's an attitude sometimes

with that. So it's hard.

It can be difficult to get

folks out to trial, can't. It.

Can.

And it's remarkable sometimes how

many judges don't seem to like

lawyers, isn't it?

Yeah.

Why do you want to be a judge if you

really don't like the company of lawyers?

Exactly.

But that's a whole nother story.

I got an issue with judges

who don't make decisions,

I think isn't one of their

things they should be doing.

What's the other thing, like lawyers and

be decisive. That's all we can ask for.

Well,

mentoring is a perfect segue in what

we're doing because the purpose of this

podcast Verdict Academy, Wally, is

as you know, there's less and less,

fewer people go to trial,

less in-office interaction because

work from home is so pervasive,

certainly in the Bay Area, I'm not sure,

it's probably less so in Los Angeles,

but there's fewer opportunities

for younger lawyers to quote,

bump into the senior partner at the

water cooler, the proverbial in the chat.

So what we're trying to do with this

podcast is give younger lawyers tips from

the preeminent trial

lawyers in the country,

and you're certainly among those as to

what the critical things they should be

doing at trial. And I know that

we talked a little offline,

and one of the things that you want to

talk about is you need to look at each

case differently in terms of one part

of a trial might be important for a

certain type of case,

but another aspect of trial might be

important for another kind of case.

Did I summarize that correctly?

You did.

Expand on that a little bit, Wally.

Yeah, I think it's just important,

particularly for young lawyers to

just embrace the notion that one shoe

doesn't fit all right?

Every case is different.

There's no single solution

or single approach for every

case. You have to take

each case individually.

You are a storyteller ultimately.

So when you tell that story and in the

context of where you tell that

story could be different in every

trial.

So staying away from kind

of a formulaic approach is a

good thing because I think it

makes you nimble and ultimately

a good trial lawyer is nimble.

And so I just think it gives you

that kind of freedom a bit in cases.

So shall I give you an example?

Yes, please.

Okay. So let me just kind

of start with a voir dire.

So a lot of lawyers will say,

and I don't necessarily disagree,

but a lot of lawyers will say that voir

dire is the most important part of the

case. And it may be, it may not

be. Now, when I say it may not be,

it doesn't mean that you ought

to just give it a once over.

Take the first 12 of the box and pass.

Yeah. Your job is to pick what

you think to be the best jurors

for your case.

And so that obviously is as

important as anything you might do.

But all that said, so stipulated.

There are some cases where

sometimes voir dire has

an increased importance.

So I was trying to case

a number of years ago,

I was representing a tire

manufacturer as I want to do.

It was a 20-year-old used tire that was

installed the day before the accident.

And that was as of a

narrative for in protest

cases as you might have.

And so I wanted to get that

narrative out in front of the jury

right away.

So I kind of felt like voir dire was

kind of a key to kind of laying that

in such a way that it will always be

with the jurors no matter what happened

during the trial. They would

always take that that home with.

So the plaintiff's lawyer went

first and found a juror who not

only bought used tires but liked them.

So I thought, and I saw a couple of

the jurors kind squint a little bit,

really. So I went right after that juror.

As soon as the plaintiff's

lawyer was done,

the first thing I did is I

went to the juror and I said,

so I understand you like used

tires? Oh, yeah. And I said,

let me just ask you this question.

How many used tires have

you bought in the last,

let's just say year? And he says,

oh, maybe five or six tires.

And I said, well, for how many

vehicles? Well, just one vehicle.

You think I'm making this up? It's a

true story. I said, so these used tires,

they don't last very long. No, no,

they don't last very. And I said,

did it ever occur to you that it might

be a little dangerous? He said, yeah,

it is a little dangerous, but I don't

mind. No problem. You don't mind.

So I tell that story because that made

voir dire the most important part of that

case.

And even if that jury

didn't make it on the panel,

the rest of the panel heard

what he was talking about.

It didn't matter. That's

right. So another example,

I'm representing a manufacturer

of a pipe on a tanker

truck, and the pipe exploded,

caused awful injuries to the truck driver.

And I knew that the plaintiff

was going to get some

leverage on the case against

me because of something called

porosity. The pipe had,

if you magnified the

pipe to an nth degree,

you would see a bunch

of holes in the pipe.

And so I thought that could kind

of ring with the jury a little bit,

but my case really, I felt as

strong as it could be on causation,

that you couldn't have made a pipe strong

enough to withstand the pressures that

ultimately built up in the system,

which were not my client's fault,

it was another defendant's fault. So I

knew that the causation, and as you know,

causation can be a little difficult for

a jury to understand. So I felt like I

needed somebody on the panel who was,

let's just say smart.

And I kept a lawyer on the panel,

and when I did voir dire,

I kind of focused on this

lawyer and I won the case.

I lost on defect and I won

on causation nine to three.

And it was because that lawyer went

back in the jury room and explained to

everybody what causation was.

So I would tell young

lawyers as an example that

some things in a trial are

more important than others,

and you have to seize that opportunity.

Does that make sense? Yeah.

Yeah, absolutely. Makes sense.

Absolutely makes sense. Let's talk about,

so you talked a little bit about voir

dire and what you did in voir dire,

and how do you establish

your case narrative?

Are you of the opinion that you're up

there just trying to get your bad facts

out and getting those

people off for cause?

You want to build credibility of course,

but are you also trying to

get your case narratives out?

That's a lot to do up there when you're

talking to a whole bunch of new people

for the first time. How do you balance

those competing interests, Wally?

Yeah, that's a good question.

And the answer is, is yes.

I want to try to get out the

best and the worst of my case,

and what I try to do

typically is I try to find one

juror who I'm watching, listening,

maybe the way I answered

questions, maybe their experience.

Maybe there's something in

their background that will

allow me to engage in that

give and take, and I'll

use that juror to do that.

And then I'll loop in

everybody after. So I'll say,

did you hear juror number six here

or Mrs. Smith? And she said, X,

Y, and Z. How do you feel about it?

Do you feel differently than she does

about it? How about you? How do you feel?

That's typically how I would

do kind of a looping exercise.

Totally makes sense. You want to

talk to all the jurors at some point.

Exactly.

And then, I mean, getting your

narrative out was a beautiful example.

In the tire case you had a juror.

If a volunteer, that information,

which is just, that's a

gift, right? It's a gift.

Sometimes you don't have anybody with

life experiences and the issues in the

case. Will you introduce it

then in voir dire and test that?

Yeah, I will. And I also think,

and this is consistent with

cross-examination as well,

that example I gave on

the tire of voir dire,

it didn't really matter what he

said, right? If you think about it,

if he said, no, I think used tires

are perfect. They're not dangerous.

No problem, no problem. On the other hand,

if he went the way I thought he was

going to go, it was basically say, yeah,

I know I'm taking a risk. So as you know,

that's the same with examining a witness.

The ultimate cross-examination question

is it doesn't matter what the answer is.

Both answers are good for you.

That's right. Absolutely. You got to

be sure that whatever the answer is,

you can use it. It doesn't matter

which way they go a hundred percent.

In terms of word, are you a fan of

questionnaires those in advance or not?

And if so, why or why not?

The answer is yes, I'm fine with it.

Particularly if you're using a consultant.

My only thing about questionnaires

is for them to have value,

you got to give me the chance to read

'em. And so as you know, some judges,

they'll use a questionnaire and then

you get the questionnaire like a half an

hour before everybody's

rifling through them.

So I try to make sure and can't remember

a time that I had a problem with my

opponent on trying to get the

judge to agree to give us,

if you're going to give us the

questionnaires in the morning,

let us the jury in the afternoon.

If you're going to give us the

questionnaires in the afternoon,

let us pick the jury the next morning.

And our pitch is this is going to

make the process go fast, smooth.

So I don't have a problem

with it. Over the years,

I think when I first started using

them, they were much more detailed,

much more case specific.

I think I do more,

I think I do less now. I think. I try

not to overdo it. In the questionnaires.

When you're picking a jury, you've

got people at the table taking notes,

I'm assuming. Is that right?

Yes.

I'm guessing you're a guy

who doesn't use the podium,

you get in front of the box and talk

to folks. Is that generally your style?

I like to move around.

Sometimes I'll use the podium.

Sometimes I'll move away from the

podium. I kind of go around a bit,

but I guess I anchor a little bit at

the podium, but I try to not dock.

Yeah, a hundred percent

be chained to the podium.

And do you take notes when yourself,

a couple of notes or just zero notes you

rely on your folks at table to do that?

That's a good question. Maybe sometimes

I pretend like I'm taking notes.

I guess I rely more on it.

I just think that you have

to establish a conversation.

The moment as a trial lawyer that

you feel is comfortable talking to a

jury as you do talking to your

friends in the living room of your

house, is the moment you

become a trial lawyer.

If you had a favorite part of

trial, you had to pick one part,

you can only do one part of

trial, which one would you do?

Oh man, I do like expert.

And it can be depending

on your case. For example,

let me give you an opening example. Okay,

so let's say that you think

that your win-loss is going

to be driven on your ability to take

apart your opponent's expert. Okay.

And let's say you've got a

lot, let's see, there's a lot.

You've got a lot of ammo against

him is what you're saying.

Exactly. And so in opening,

you sometimes have to make this decision

about how much do you try your case in

opening. And sometimes what

I've done is, for example,

if I know that my opponent's going to

call their expert early in their case,

sometimes I'll use the opening to do

my first cross-examination of their

expert. In effect,

I will get very aggressive

in my opening against their

expert.

And so when the jury first

hears direct exam of the expert,

they immediately already have heard me.

They've already heard me

cross examine the expert.

And so that gives me kind of

a first shot, if you will.

So I like doing that

depending upon the case.

And so what I'm doing is laying

the groundwork immediately

and then I just start

playing off of it. You

know what I'm saying?

Yeah. Answers the question

opening statement.

Some of you are very critical

depending on what studies you read.

I'm sure you read all this stuff,

60% of folks are leaning one

way or the other after opening,

something like that.

How important is opening and how do you

decide whether you're going to go after

'em or just

keep in mind folks that we get to go and

keep your open mind and listen to our

case too kind of thing?

Well, again, we started at the

beginning of our conversation.

Each case is driven by what you're trying

to accomplish and where you think your

assets are and where your liabilities are.

So I guess I would say you

always want to be careful not to

overplay your hand, and number one,

because if you don't

deliver on your promises,

you'll get eaten up and close it,

and your opponent will have gotten

a transcript of the opening and

will have a very lovely PowerPoint

done by a very sophisticated technical

person and will put it up in closing

argument and the jury will see that

you didn't deliver on your promises.

And so that then puts

your credibility at issue.

So you got to be careful. If you're

going to get out there on your opening,

you better be prepared to deliver it.

I also sometimes think that you

can use the opening to, well,

the other thing is,

the other thing you got to be careful

about is if you're not sure that piece of

evidence is going to come in,

you got to be careful. And sometimes

it's better to err on the side of not

talking about that piece of evidence

because then if it comes in,

then it's like, bang. It's really good.

The other thing I would say is

that you just have to be careful

about not overdoing it.

And I'm not saying that you don't do

what you need to do to tell your story,

but you just have to be careful.

I think just in opening and closing is,

particularly from a defense lawyer,

you can never demand that a jury

do anything you have to ask.

I think that holds more true for

defense lawyers and it does plaintiff's

lawyers. That's my opinion. Maybe

people can disagree with me.

When you represent corporate

America, you can't make demands.

You have to ask. And I remember

I learned that lesson in a,

I've only tried one plaintiff's case

and I lost this plaintiff's case,

and it taught me that this was

not something I should be doing,

and I felt so strongly about my case and

I felt that this defense lawyer was so

misrepresenting what was

going on in the case,

and I felt like I just kind of got

over my skis. And I went back after I

lost the case, and I went into William

Marshall Morgan's office and I said,

I lost. And he said, okay. He said,

well, tell me about what happened.

And I'm explaining, I'm explaining,

I'm explaining. And he goes, well,

I know why you lost. You

didn't ask. You demanded.

That was kind of a good lesson. I thought.

I hear what you're saying. I want to ask

a little question about that. Curious.

As a plaintiff's lawyer,

my thought on this,

my philosophy is that the

jury's looking to you,

for example, to tell 'em

what the case is worth.

They have no idea what the case is worth,

and they think that you damn well better

know what the case is worth the lawyer

up there with the gray hair.

So my philosophy is I know

what the case is worth.

I'm not saying a nice way, but I'm

saying this is what the case is worth.

Firmly set it as opposed to, well,

you guys do what you want to do and

here's a range. That's my philosophy,

but tell me where you think

that might be an error.

Yeah, that's a good question. You

would imagine every which way,

but loose on that,

I think that if you really

lay it out strongly,

what you think the case is worth,

I think it's all about

your delivery of it.

And I think it's all about the credibility

that you've established with the

jury, because if you're firm on

it, then they'll respect that.

But I get what you're saying. If

you're too loosey goosey on it,

then that won't deliver either.

So I think it's about establishing

as a plaintiff's lawyer,

establishing your credibility with the

jury and they respect your firmness and

your sincerity in saying that this

is what this case is worth for this

person. I mean, I've seen

it work, seen it not work,

and in today's world, no

amount. That's too much. Okay.

Yeah. Yes.

No offense.

No offense to the look, we're

having an open conversation. Yeah.

Verdicts are going up.

People are asking for money.

Money that would've been jaw dropping

10 years ago and now without a blink

of an eye juror are saying they

got no problem with that number.

Has that been your experience?

Not as much as some.

Sure. I'm not suggesting

you're getting hammered,

but I'm saying in jury selection,

you're floating these huge numbers.

Back in the day, there

would be like, oh my gosh,

you're going to come across as a pig.

And now a lot of times, well, geez,

you got to ask for a full

value and that's your job.

I think that's it.

I think that there is a

kind of unbounded kind

of philosophy on the other side,

and when it works, it works.

And oftentimes the overreach has kind of a

negative consequence,

particularly if there was

some overreaching on other

things going on in the

case.

A hundred percent. No, you have to have

credibility. You have to absolutely.

Your plaintiff has to be able to deliver,

and you have to have a super clean case,

and you have to give them a reason

why the case is worth what you think.

There's this methodology. It's not just

taking something out of thin air. Right.

Exactly.

The last thing I want to talk

about is embracing the negative.

I call that judo law, taking their

force and using it in your, tell me,

how do you embrace, occasionally

you'll come across as a defense lawyer,

are the bad factor too. Who knows?

You don't want to hide that from them,

but tell me,

how do you embrace the negative when

you've got a bad fact that you know is

coming in?

This is kind of my thing.

I really strongly believe in this idea

of embracing the negative because you

can't run from it. And if you run from

it, you'll be seen as running from it.

And if you're scared of it,

then the jury is going to place

greater significance on it.

So you just have to face up to

that reality. So for example,

in my world, you'll frequently

encounter bad documents.

Somebody writes a memo that

you think to my, see yourself,

I can't believe this guy wrote this memo.

So the plaintiff's lawyer loves the

document and will put it up on the

screen and make a huge deal of it.

What I do is as soon as I get up

to do my redirect or whatever,

I'll immediately put the document back up,

and every time he or

she shows the document,

I show it again.

I show it as much as I possibly can.

And I'm doing that because my hope

is that the jury finally says,

okay, we've seen enough of it. What

else? Do you have anything else?

We don't want to see it anymore.

I also think you need to embrace these

sorts of things because for example,

what if you have a documents

in a case where you

have people, engineers, for example,

doing self-critical analysis.

So they're questioning how

this design is working,

whether they ought to change this

design, yada, yada, yada. Okay.

Not unusual documents

produced in the case.

The plaintiff sees the documents and all

of a sudden they have a defect theory

because now there's engineers at the

company saying that maybe the thing should

be designed this way rather than that way.

This way becomes the defect

theory. So you've in effect,

given the plaintiff's lawyer in

this document, the defect theory,

they may not have had it before you, they

had the document. This is not unusual,

as you know.

So what I like to do with

those kinds of things is I like

to approach it this way.

It's not companies that have

these documents that you need to

worry about.

It's companies that don't have these

documents that you need to worry about

because we enable people to

do self-critical analysis to

challenge themselves. We're all

about doing the best job we can.

I love that. That's great. I've

never thought of that before.

I've never seen that done before.

And that's all that is

embracing the negative.

It's making something that your opponent

thinks is your negative into your

positive.

What kind of company would we be if we

didn't continually try to get better?

Isn't that what you expect of us?

Love it.

So if you have design changes,

of course we have design changes.

Every product develops over time.

Is anybody surprised?

Would you want to buy a product

that's never had a design change?

Buy a product that's using engineering

and technology from 30 years ago?

That's great. Great example of

embracing the negative. Love it.

That's fantastic. Well, unsurprisingly,

the 30 minutes flew by,

but I want to give you a final

shot here at our audience.

Any final words or wisdom that you want

to convey to our younger trial attorneys

to keep using that muscle to

exercise the seventh Amendment,

which is so important for us, Wally?

I would say work hard and have fun.

That's what I would say. That's always,

always tell my kids, work

hard and have a lot of fun.

Have as much fun as you have Hard work.

Love it. Well, you love your job. You

love your career. I know I love mine.

You love yours.

And it's a blessing to have

a profession where we love

coming to work, isn't it? It's a blessing.

I know many people unfortunately

don't have that blessing,

but we certainly have.

Thank you Wally Yoka for being

a guest on Verdict Academy.

I really appreciate this. I could talk

to you all day long at a blast with you.

Thank you so much.

Thank you so much. Happy to beer.

Thank you for listening

to Verdict Academy.

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