Success at trial starts well before an attorney walks into the doors of a courtroom. To be successful, the preparation leading up to trial is key. Rick Barrera of Buckingham Barrera Law Firm, with offices in New Mexico and Texas, talks to Lawyer Minds about how he attacks a discovery plan, his prep leading up to trial, and a couple of trial tips.
Tad Thomas: Rick, can you tell us a little bit about your firm and your practice?
Rick Barrera: Our firm was formed in 2013 in Midland, Texas. My partner, Kent Buckingham, had been practicing law since the 1990s in West Texas and Eastern New Mexico known as the Permian Basin. I was a four-year lawyer on his third career who was willing to work hard and was in the right place at the right time. About 70% of our practice is medical malpractice with the remaining 30% being catastrophic injuries in the oil field or trucking cases.
About five years ago we both moved to New Mexico and now have offices in New Mexico as well as an office in Houston, Texas. Up until last year we worked all our cases together. We now have a couple of associates as we continue to grow regionally.
Tad Thomas: I know you spend a lot of time not only trying cases but educating other lawyers on how to try cases. What are some of your suggestions for lawyers who are trying cases for the first time?
Rick Barrera: One of the things that I think is most important to consider, especially when you’re first starting out, is your jury charges. I remember going to a trial college and going in the class, the instructor asking me, “What’s your jury charge?” I had no idea what the heck he was talking about. I’d never been to trial. I’d been out of law school for about a year. I got upset with the instructor and said, “Hey, look, I’m here because I’ve never tried a case. I don’t know what that entails. So, you’re asking me to do something that I have no idea what you’re talking about.” So jury charges at that point, to me, were an abstract concept. But, in going through that process, I figured out that developing your case must be driven based on your jurisdiction’s jury charge. You must know how you need to frame the case and develop the discovery to hit all those elements.
Starting out like that is always important. I think sometimes when you have a little bit of success, you skip some of those steps. So, we have gone back now to getting back into the basics and starting from the beginning to develop our discovery plan. Developing the hit list that we want to have in our depositions and really planning out what are the depositions we need to take in order to develop all of the elements that we need to be able to prove in trial. Focusing on that has made the case development more focused so we’re spending more time working on the things that are going to be important in trial. I would say that that has got to be one of the first things that you do so everyone can refer back to what has to be proven to win the case. Having the jury charge as the guide allows each team member to see how what they are doing is going to connect to proving our case at trial, because that’s ultimately what we’re planning for.
Tad Thomas: How do you go about drafting a discovery plan and what considerations do you have when you put it together?
Rick Barrera: The considerations that we have is really understanding that trials are very much about telling the story. You have to look at the story you are going to tell. How is it going to be conveyed?
It’s helpful to use focus groups when you are preparing the discovery plan. What I am finding is that the longer that I’ve practiced law, the more abstract I look at concepts. I like having new blood in the firm– brand new attorneys– because they haven’t seen everything and so they come from a different perspective.
This morning, we were in a case planning meeting for some depositions that are coming up and our new associate came up with a concept that neither me nor my partner thought about. It was a good reminder that once you’ve done this a while, you look at things in a certain way, and you really need to be able to tell the story the way that a jury is going to want to hear it and more importantly is going to understand.
A focus group may tell me that they want to know something. I’ll give you a real-life example. I have a case where a median nerve was cut in a carpal tunnel surgery. A member of the focus group said, “How do we know that the doctor that did the repairs isn’t the one who did the damage?” Another participant said, “I had a surgery and there was video of it. So if somebody took a video of that surgery, then I would believe that doctor didn’t cause the damage.” Well, lo and behold, we had a photo. The doctor who did the repair was so shocked that the median nerve was totally severed that he actually took a picture of it. Once we were able to tell the focus group that the doctor who did the repair took the picture, they said, “Oh, well, then he’s not responsible for cutting the nerve because he’s the one who found it that way.”
Things that we think are not important are important to juries. When you’re developing the discovery plan you need to learn what it is that your jurors want to know. You obviously have to prove the elements from your jury charge, but you also need to be able to provide some additional information to the jurors that maybe you didn’t necessarily think of.
Tad Thomas: When in the course of a case do you like to do focus groups?
Rick Barrera: We are trying to do focus groups more often. We are actually talking about doing focus groups on a couple of cases right now before we even file, to know what aspects we need to develop in preparing our discovery plan. Before using focus groups, our discovery plan was really based on what our experience was. Now that we are using more focus groups, the discovery plan is based more on what it is that laypeople are going to look at and the commonsense aspects that they have. So, I would say as early and as often as you can. On a case we went to trial on, we did three focus groups.
Tad Thomas: In your trials, do you cover the jury instructions in your closings?
Rick Barrera: We do cover the jury instructions in our closing depending on which jurisdiction we are in. We have tried cases in Texas, New Mexico, Missouri, Indiana, and Louisiana. So, just depending on what detail you need, we do cover it. That is why it is important to look at them early in the process, you do not want to be looking at your jury charge when you are in your pretrial trying to get everything done at the last minute. At that point you have already done all your discovery and you have what you have. So, in doing our discovery plan, we may look and say, “These are the three elements that have to be proven and what evidence do we have to prove that?”
I once had a judge tell me that you have to tell a jury the same thing six times for it to stick. And the reason the judge told me that was because it was a criminal case I tried early in my career. The judge said, “I would have ruled in your favor.” There’s nothing worse than that. Then she said, “You’ve got to tell the jurors six times what you want them to remember.” When we are developing the evidence in a case, we want to have as close to six to eight pieces of evidence that are going to convey that one element. And that’s how we kind of look at things getting ready for trial.
Tad Thomas: Some lawyers, including me, argue that it is important to trim down your case to the bare essentials so that you’re in and out as quickly as possible to keep the jury’s attention. And it seems like telling a jury something six times is the antithesis of that. Do you try to shorten your trials? Or do you just go as long as you think is necessary?
Rick Barrera: No, we really focus in on simplifying the trial. We want to have no more than three concepts that we hammer home with the jury with each piece of evidence supporting those concepts. So, you are right.
In essence, what you’re looking at is how do you pare down your case? You may have five things that you think are strong and that you can prove, but what are the two to three things that really pique the interest in that jury or your focus group really grabs on to?
To give you an example, in our birth injury case that we had about a year and a half ago, it was a pretty traumatic injury that the mother and the son suffered. We presented three standards of care that were breached. All the evidence supported how those standards had not been met by the Defendant. The jury heard about them in opening, closing, and throughout the case in chief. That is what I mean by telling a jury six times. Our portion of the trial was three and a half days. So, we were able to pare it down. We had an entire medical malpractice trial including jury selection done in seven days.
We’d like to thank Rick Barrera for sharing his knowledge and examples of situations during litigation which may prove useful to our readers.