“Trial Work Wasn’t What I Wanted. It’s What I Need,” with Rich Schoenberger

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Welcome everyone to another

episode of Verdict Academy,

where we bring you the best trial

lawyers in the country to share their top

three trial tips.

When you've reached the

apex of your profession,

do you rest on your laurels or do

you continue to use your abilities to

serve and mentor others? Our

guest today, Rich Schoenberger,

a plaintiff's trial attorney at the

WalkUp law firm in San Francisco,

chose the latter and continues

to try cases and mentor aspiring

trial lawyers.

I'd be here all day describing

the achievements of Rich's

40-year legal career,

but let me take a minute to

outline some of the highlights.

Rich is a Bay Area native,

graduated from Santa Clara for

undergrad and UC Law San Francisco,

formerly Hastings for his

law degree. After graduation,

he spent two years as an assistant

district attorney and quickly rose to

prosecuting serious felony cases.

he joined Walkup and

Rich's courtroom successes

are too numerous to mention,

but his most recent one, just a

few months ago, is noteworthy.

He and his team at Walkup, including

his law partner, Andrew McDevitt,

obtained a $26 million verdict in

a complex products case for a man

paralyzed after an off-road

vehicle overturned.

The Orange County jury concluded that

the Yamaha rollover protection system

was defectively designed,

knew it was defectively designed before

the incident and failed to recall it,

thereby causing these

life-changing injuries.

When Rich is not trying cases, he's

mentoring others in NITA, ABOTA,

and other organizations.

Rich is a member of the Big Four

invitation only trial organizations,

ACTL, ISOB, IATL, and ABOTA.

He served as the ABOTA San

Francisco chapter president,

has received the chapter's highest honor,

its Don Bailey Civility

and Professionalism Award,

and has spearheaded the chapter's

flash trial competition,

which allows younger attorneys to gain

experience in a courtroom with live

witnesses and judges. Rich Schoenberger,

welcome to Verdict Academy, my friend.

Thank you. As you were saying all that,

I realized that I'm also in the WGASAM,

which is the Who Gives a Shit About Me

Group of lawyers. And I am a proud member.

I was inducted several years ago.

Fantastic. Are you service president

of the organization as well? Yes.

I am. All.

Right. All right. In all seriousness,

you're just at the top of your profession

and I consider you a very good friend.

What drew you to become

a courtroom lawyer?

That story, it's funny, kind of begins

and ends with a very sad time in my life,

but formative,

which was in my second

year at then Hastings,

a classically mediocre student.

My dad was diagnosed

with cancer. He was 53.

He died within 37 days.

And we got a chance to talk a lot

about what I wanted to be and do.

And I wasn't sure,

but I felt like there was something

about trial work that called to me,

being a trial lawyer or an actor,

because I was sort of a ham.

I have a face for radio

and I thought, "Man,

that's probably not going to work." And

this concept of trial work that I had

just started to be

exposed to in law school,

I found very attractive, don't have

any lawyers in the family, et cetera.

And I remember he said,

"What's the best place to learn how

to be a trial lawyer?" And I said,

"I have no idea." And he said, "Well,

why don't you find out?

" And I did and asked around a bunch

and a bunch of different sources kept

saying Alameda County DA's office.

That's the place where you will

learn to cut your teeth trying cases.

You'll try a lot of cases.

The crime is real and unambiguous

and the training program is

fantastic. I was sort of too

late for that training program,

but while she was teaching advocacy

at Hastings and would just hang out

after her class and say,

"I want an interview." And eventually

got one and that whole story was

fascinating, but that's what got me going.

And I kind of haven't looked back

since in that I have never questioned

whether it was right for me.

I sort of had no idea and didn't

think about it up to then.

And then it was my bliss,

as James Campbell would say.

I followed my bliss

and it's been my bliss.

So it wasn't like you went to law

school, I want to be a trial attorney,

but you got a taste for it and your dad

kind of helped you in those 37 days.

It must have been incredible

and horrible, but incredible.

He encouraged you to explore that.

And then once you had a taste of it,

you were sold.

Sold.

Yeah. Got it.

Yeah. Really great. Really,

really fun to have that feeling.

I wish that for everyone in whatever

they choose that they have that,

I guess you'd call it passion. But for me,

trial work wasn't what I wanted

to do. It's what I need to do.

You can't believe you get paid for it.

Yeah, that kind of thing.

Yeah. Yeah. Okay. Well,

the format of the program

is to give younger or

less experienced trial lawyers, trial

tips from the masters and three of them.

I'm a big rule of three guy.

And so you're going to help us give us

three tips to our aspiring lawyers out

there. And tip number one discusses

the general area of closing.

Have it done before you open the trial.

Talk to us about closing argument, Rich.

You can kid yourself into thinking that

your case is going to be won and lost in

this dramatic closing argument.

And there are times when done right.

I think when the trial is done right,

closing argument can serve the

purpose of putting it all together.

Because for example,

on cross-examination where you're

resisting asking the so question,

you're eliciting the one fact per

question testimony that you want.

The witness is a bobblehead

on the stand saying yes or no.

And you've gotten those facts that

you're going to use in closing argument.

You get to use it in closing argument.

But what I mean by having your closing

argument done before you even start

the trial, and I'm not pollyannish

enough to think that it's really,

really done,

but that there is the skeletal

outline of your closing argument

completed because then there's

a means to an end. Every

single thing you're doing

in trial is toward that end.

And if it doesn't meet that end,

then you don't ask the question.

And that's been a really helpful

tool for me. I need to know,

I've got my jury instructions, I've

done my good facts, bad facts analysis,

I have my theory, I have my theme.

And within the context

of my closing argument,

every witness and the order

of the witnesses and all

of those things are driven

by where I want to go at the end and

how best to know where you want to go

at the end than knowing

that at the beginning.

So while closing argument has this

reputation of being fire and brimstone and

where you actually argue and where you

use rhetoric and where you use analogies

within the concept of rhetoric and silence

and some emotion when appropriate and

even disdain in rebuttal when it's earned,

that stuff is very

important for the close,

but the substance of the close

is I think vitally important

before you get started.

Do you use the verdict form to outline

your argument and do you go over the

verdict form in closing?

Yeah. Not only do I use it,

I typically am a big fan of,

in this world of high tech,

having a fair amount of

low tech in the courtroom,

almost surrounded by things.

One of those things is an

overblown verdict form.

Poster.

Board. Poster board, big marker. And.

You go over and mark the answers yourself?

Absolutely. And even at times,

depending on the case and

depending on the jury,

filling in the amount of the appropriate

damages, what I think is fair.

Other times, very sophisticated jury

with hundreds of years of experience,

not wanting to dean to do that

for them, but having suggestions,

but inviting them to do that.

My favorite way of using

the special verdict form

as a guidepost for closing

argument, and this is

the offensive part of why

we win, question number two,

why we win causation, keep going,

then getting into their defenses

and comparative negligence,

which seems to always exist

in virtually every case I try.

And then apportionment, I think,

is the biggest advantage that

we have as plaintiff's lawyers.

It is an enormous advantage where we

get to be reasonable and institutionally

and legally they can't.

It's a horrible problem and predicament

for a defense attorney in a big

economic damages case

where 1% applies to have to

say, "We did nothing wrong."

And I love to, again,

in low tech, and Kevin,

you and I have probably talked about this

thermometer thing that I've done for,

I don't know, the last six

cases I've tried, I think,

where I'm always looking for Rodney Jew's

single point of failure going back in

time, having a thermometer,

having our event that leads us

there at the top of the thermometer,

one of those fundraising thermometers,

and then filling it with the defendant's

negligence or fault products case

that predates the event itself,

leaving just a little room at the top

for fault with respect to the event,

such that even if there is comparative,

I argue both temporally and visually

that most of the thermometers

already filled with their fault. So if

you want to give them fifty fifty for

that day, there's only 10% left,

90% of it's already been filled.

And that is a part of

and a companion to the

special verdict form that are both

low tech instead of Fancy Pants

PowerPoint, which has its

place if used properly.

But those are the two big low

tech items I like to use in

close.

Two questions on closing. One,

is it your theory that you

can win the case in closing by

swaying the jury,

or is it your job to give nice tidmits to

jurors who are going to fight for you

for the verdict or something else?

I am always talking to my jurors whom I

have speculated are my jurors by virtue

of their body language throughout and

who they were when the jury was selected.

And I'm admonishing gently for if you're

in the jury room and someone

says X, remind them of why.

That's a really important part.

I think that just like

an opening statement,

you have to trust their intelligence

and not get so detailed about

everything.

But I do think that closing argument is

important when you've been disciplined

in your cross-examination to

put it all together. Remember

when I asked this question,

remember when so- and-so said

this, here's why that matters.

And that's, I think,

an important part of

letting them know why you

were doing the things that you were

doing as opposed to getting into the mud

with them because it's safer.

It's safer when you're in the mud in

cross-examination and you're saying,

"So what you're saying is,

then you're get in return." No,

that's not what I'm saying at all and

you've lost control. So I think that a

well-executed cross-examination does

cry out for explanation and closing

argument that even the smartest

jurors may not have picked up on

because they're not in your head.

You obviously want to be obvious in

cross why you're doing what you're doing,

but sometimes it just

needs a little explanation.

Second question, rebuttal

is a part of closing.

What is your plan going in for rebuttal?

To rebut and to have it also anticipated

somewhat.

Yeah. Sorry to interrupt.

You know, the discovery,

we know what they're going to say,

right? And so do you have, okay,

I know they're going to say comparative

and this is why I'm doing a rebuttal,

or is it something else?

It's something else because you have to

be facile enough within the context of

what they're saying in

close. Like for example,

where you might be setting it up is if

you're going to ask rhetorical questions-.

Do you do that? Do you do that?

Sometimes. Depends on not just the

facts, but it depends on the lawyer.

Who will bite and who won't? And if I

know someone will bite, then I will.

And then if they don't, I'll call

them on it. And if they do, they bit.

And then I get to feed off of that.

But as far as a well organized rebuttal,

I think it is much like a well

organized cross. It should start strong,

it should end strong. There should be,

with everything we do, a sit down line.

And so the importance of

organization in a rebuttal is

that you're going to start strong

and you're going to end strong.

You're looking for gifts that they

gave you during closing argument.

That's something that I'm

really paying attention to.

You're looking for promises that

they made an opening statement.

That's something that is going to be

written in by the time you get there

because they broke that promise.

And you're looking for transition from

one to another so that it

isn't this disjointed blob,

but rather smoothly makes a

transition from one point to another

short is better.

I remember once in a case that

the arguments went from like 8:30

to quarter to 12 and I was

ready to go at quarter to 12

and I could have had a half

hour, 45 minute rebuttal easily,

but it had been a relatively long trial

and I think building in contrast is

important and I thought their closing

argument went too long. And so I said,

"It's quarter to 120. If I

promise to be done at noon,

will you promise to listen to

me until then?" Then that means

you're done at noon.

Got their attention though.

You got their attention.

Yeah. And everything you said

had to matter. In this last case,

Andy McDevitt and I sat up,

we got an enormous gift in

and I think it was the longest

closing argument I've ever given.

It was two hours,

but it had been a nine week trial and I

did not like that. And I told them that.

And I said,

"It's been four or five weeks since

you've heard anything we had to say in our

case. And I need to tell you, I do not

want to talk for the next two hours.

And if I don't want to talk

for the next two hours,

I know you don't want to hear

me for the next two hours,

but I'm hopeful you'll take this

journey with me and I'm hopeful that I

don't believe I'll be wasting

your time, but I finished lunch,

finished after lunch.

He could have finished at four.

And if he'd have finished at four,

this was the hardest judge I've ever

tried to take in front of him for a whole

lot of reasons.

If he'd have finished at four and she

was going to give me a half hour or 20

minutes to a half hour, I would have

had to go then. It would have been okay,

but he went till 4:20

and she did not force ...

And she was done at 4:30 and she

barely said, I could tell, I

could see the wheels turning,

we'll come back tomorrow.

You can do your rebuttal.

You'll have 20 minutes." And

she had given me 30 previously.

I think I took 25 and she was

fine with it. But I'm telling you,

because we had that night,

it was the cleanest rebuttal I've ever

gotten to give the luxury of that. And I

mean, and stayed up till midnight. I mean,

it was long and we edited it and we edited

it and then we got rid of stuff that

didn't matter and then we made it

matter. It was important. And by the way,

it was the only thing they heard that day

before they were getting instructions.

It was like, "Oh God, that was

lucky." That, I will say this, Kevin,

of all of the trials, and

I'm not kidding myself,

into thinking that our closing

arguments matter that much,

I actually think that rebuttal mattered,

which I think that's the

exception in my trials.

Next topic, jury selection. Why is it

so important and how should you do it?

So you hear people talk about rehearsing

opening statement and getting that

down, Pat, and I think that's right.

Not so Pat that it sounds rote or robotic,

but such that you are comfortable

enough to have your outline and to be

telling a story with eyes on your jury,

even if that means going back

to your outline occasionally,

but just comfortable enough to be

exposed. And so people practice it.

If that's true, an opening statement,

they say people have had their name

mined up 85% of them after opening

statement. I don't know if that's

true or not, but I will tell you this,

if you don't have the right jury,

it doesn't matter how good your

opening statement's going to be.

You're going to lose, plain and simple.

And I think wise people say the most

important part about any trial is jury

selection, 100%. Well, if that's true,

then why are people not practicing it?

They say it's the most important part.

Let me get a consultant. Well,

your jury selection is usually coming

down to a couple of people, right?

There's some obvious people you can't

have and there's some obvious people you

love. Your job is to prehab them and

not expose them with your questions,

with respect to those whom you

don't want. You've got two choices.

You either have to use a challenge on

them or you get them for cause. Well,

how do you get them for cause?

That's a whole exercise.

You have to go into the trial knowing

where are your vulnerabilities?

I call it my worry basket.

What is your worry basket?

I empty my worry basket jury selection.

How do I know how to

empty my worry basket?

How do I know how to

ask the right question?

How do I know to have that muscle

memory with a unique set of facts

because every case is unique without

practicing. So I will never try a case

without practicing jury

selection. It sounds strange,

but you are in there asking those

questions that are unique to your case,

getting answers, and it could

be 12 people in your office.

It could be nine people.

It could be six people.

It could be something where

you're spending an hour,

hour and a half just

building up that ability to

flow from these unique

topics, one to another,

to get the bad answer,

to reward them for the bad answer so

that you get the candor from them,

which frees other people to be candid,

which allows you to get into your

world of transitioning from listening,

which should be 90% of it, to

leading questions, to for me,

asking the question in an

unoffensive or non-offensive way that

begins with as you're moving forward

and you're welcoming and your arms are

open.

So a case like this,

it's fair to say it's hard for

you to be entirely impartial.

There's nothing threatening

about that sentence,

but those words are in the civil code.

And once they say they

can't be entirely impartial,

they are a cause challenge.

How you get there and in a

particular case type takes practice.

And for people who've done

it a lot, always learning,

always trying to get

better at jury selection,

always listening to

how other people do it.

There's so many people who are so

good at it, but it's everything.

The sick feeling that you

have when you're like, "Shit,

there's four bad people on

this jury, and that's on me. ".

Well, sometimes yes, sometimes no.

Sometimes the folks who show up

for that day are, it just is.

A hundred percent. And the case that

Craig and I tried, that was one of them.

We were never going to win that case,

but it doesn't mean you don't try.

Yeah. You could fake a medical

emergency. Rich, did you consider that?

I have. I've gotten gassy, which

cleared the room, and that was helpful.

Yes.

But it was only temporary. So I got

to go back to the drawing board.

The joke I have on jury selection

is once the jury's sworn,

I turn to whoever I'm turning

the case is, "Okay, case is over.

I'll catch you guys for closing."

I mean, right? Yeah. Kind of right.

I guess the evidence part matters,

but we know what the evidence is,

we know what their evidence is, and I

100% agree with you. And I started to- I.

Know you agree, Kevin. All we're

looking for is a fair jury.

A hundred percent, because

your case is good enough.

You're going to win with a fair jury,

but you're not going to win with someone

who's got an agenda lift experiences

that are going to help you out. Yep, 100%.

Exactly. So we don't

need to guild the lily.

No.

Just want a fair jury,

an open-minded jury.

I love the practice jury selection.

I can tell you the last three trials.

I do a full on mock opening and jury

selection the weekend before trial.

It is incredible.

It is a pain in the ask because all

the minutia is going full bore there.

You got the motions, you got this,

the drama, the craziness of pretrial.

But to your point,

if it's the most important part

of trial and everybody agrees,

why aren't you spending your time on

it? There's nothing more important.

I only try one case a year,

maybe one case every two years.

I need to get the rust off, man.

And so I'm not getting the

rust off in my actual trial.

I'm getting the rust off the week before

with 15 people who whatever. Yeah,

it costs them money. How

much does a crap jury cost?

So you got to do it.

You make a great point.

A couple of great points.

The feeling of ease that you have,

because we don't try more

than one or two a year,

the feeling that you have when

you just did it the week before,

it's so much better than going in cold.

And you've heard words that the actual

jurors are going to use and you know how

to respond.

Yeah. Yeah, yeah, yeah.

No, I highly recommend it.

All right. Third and final, cut, cut,

cut your case down and

then divide in half.

Yeah. Listen, man, I'm a big offender,

but I'm not obsessive by personality,

which is a blessing and a curse

probably. But I do believe, as my bride,

I do say to myself and believe that

perfect is the enemy of the good.

And I do believe that jurors

have short attention spans,

shorter every day.

I'm sorry, what were you saying?

Jurors have ... Oh, thank

you. Very good. Got me.

And so demonstrative

evidence is everything.

You have to be showing them

something every minute or two.

And then you have to triage.

You have to say what matters. This expert,

you could put on this expert

for three hours and it would be,

you'd fully explain everything. Or you

could do her in an hour and a half.

You could do your client or a 776

in an hour and a half, or you

could get to the fricking point.

You could call five witnesses

to say the same thing,

or you could just call one,

and you could just go from

point to point to rest and

make it flow.

This case that we tried

that was over nine-.

The Ama case you're talking about? Yep.

The Amaha case that's sort of

burned in my mind right now,

we had a judge who would

go three days a week.

There was another Yamaha case that

had been tried by, I won't say who,

that lasted four months, and they were

going five days a week. And this person,

I think, they put on their case for two

plus months. The plaintiff's attorney.

Did. Plaintiff's.

Attorneys-.

Their case in chief was two months.

Yes. And they were proud of that.

And it was, so five days a week,

so let's say 20 days.

And this case was every bit as

complicated, if not more so, this one.

And I said to the defense attorney,

who's a very fine lawyer, Dan Rodman,

very good, one of the best lawyers

I've ever tried a case against.

We're going in and I go, our

trial estimate for our case,

not counting cross is six days. And he

was like, "What are you talking about?

" I said,

"Six days." And he was

flabbergasted by that.

He had to adapt significantly because

he was smart enough to know that if we

went six days and his crosses

were probably another six days.

So our case ended up being about 12 days,

but ours was only six and

then his was really long,

but it would've been a lot longer even.

He had to

adapt and adjust and it felt so good to be

efficient. It felt so

good. And at the same time,

it was so hard. Andy's

more anal than I am.

Matt Davis was very helpful in sort of-.

Big picture.

...

Orchestrating.

Picture and we were

synergistic in our need to

cut things down,

but I've always believed that

and I've not been as good at it

until the last maybe 10 or 20 years

because I was so afraid of leaving.

It's like taking a deposition,

you know what you want.

It's a little bit like that at trial

by this time. Here's what's important,

here's what isn't. That kind

of goes back to rule one,

which is finish your closing argument

because that allows you to edit.

You don't know where you're going and

you're just sort of out there and you've

got multiple theories and

you're alternating, then

you're a little bit lost.

But if you think about all

three rules and I haven't,

they are synergistic in a way and

they meld nicely and they all sort of

speak toward thinking about the jury,

thinking about who they are and

the sacrifice that they're making,

being efficient for them,

being organized for them.

They love that and not wasting their time.

Yeah. Juries are so smart.

They're so perceptive.

100%.

When you start out, when you're

younger, you're less experienced,

you're nervous, you're

going to leave stuff out,

you want to overprove your case.

And there's a fascinating study,

and I will try to find it and put in

the show notes at some point. Basically,

let's say it's a red

light, green light case,

and you've got three witnesses

who are all your way, right?

Studies show if you call one witness,

you're going to win that point.

The more witnesses you call,

the lesser chances you're

going to go because it's like,

why is he calling so many witnesses on

this simple little issue? It's hilarious.

Yeah. He must be defensive and worried

about it. Now I'm going to be. Oh,

that's a great point.

Final words of wisdom, Rich.

Oh, have fun. Don't take

yourself too seriously.

Take what you do really

seriously. Enjoy the moment.

There is having dabbled with

all kinds of recreational drugs

when I was younger. Listen,

can I watch this? Probably not.

Are you suggesting you stop?

Yeah. But God dang it,

there's no high greater than 4:30

when you're coming back the next day.

It is really living. You are alive.

You are daring greatly.

You are in the arena and you don't

always win and it fricking hurts when you

don't, but you are alive.

And so be proud of yourself for

daring to get in there and do it.

And I encourage more lawyers to just

say, "What the hell, man? Take a swing.

Take a swing and have fun

while you're doing it.

" That is sort of a word of wisdom. Folks,

when I am lucky enough to be on a trial

team, we are going to have a good time.

We are not going to sit there and wring

our hands. And there'll be moments,

I mean,

moments where I was nervous as shit and

pissed at myself for how I handled a

witness. But the grand scheme

of things, treat people well,

have fun and go for

it. Those are my words.

Amazing. Rich Schoenberger, thanks

for being a guest on Verdict Academy.

And more importantly,

thanks for being such a great mentor to

our next generation of trial attorneys.

You're pretty Kitchen

to your choir, Kevin,

you're the same and a

phenomenal trial lawyer,

so I'm feel privileged

to be hanging with you.

Thank you for listening

to Verdict Academy.

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