JADWIN v. COUNTY OF KERN, Docket No. 1:07-CV-00026 (ED Calif) may have been Los Angeles, California employment rights solo Eugene Lee’s first jury trial (indeed, his first trial of any kind). But the $500,000+ verdict that Lee won for his client, Dr. David Jadwin — who’d been terminated from his position in retaliation for bringing patient care issues to the hospital’s attention and in violation of disability and family medical leave laws — can hardly be termed beginner’s luck (for more on the case, see this television news coverage. Rather, Lee’s success resulted from three years of hard work and persistence during which he endured abusive discovery tactics by opposing counsel, dozens of motions and thousands of pages worth of summary judgment motions. Lee’s tenacity and his story of how he went from a newbie solo to a real-live trial attorney now fielding requests to co-counsel in other cases are inspiring and for that reason, he’s our hands down choice for this installment of Shingular Sensations.
1. Please share some information about your background and specialization.
I wandered around before starting my own firm. I worked as a mergers and acquisitions attorney on Wall Street, as a management consultant, as general counsel for a Silicon Valley dot-com, and as a foreign legal consultant in Asia. I spent my career working for Fortune 100 companies such as AT&T, General Electric, Philip Morris, and Coca Cola. Along the way, I decided I didn’t feel good about working for Big Business and in 2004, I started up my own firm in Los Angeles exclusively representing California employees in employment and civil rights matters. My firm’s focus is on employment-related harassment, discrimination, wrongful termination and retaliation claims. I love being a trial lawyer for the little guy.
2. Now, you specialize in employment matters. What made you choose that practice area and how much experience do you have in it?
My firm has been 100% focused on employment law since the day I opened my doors. I was attracted to employment law because it is intellectually challenging. I also appreciated the opportunity to make a direct and noticeable difference in the lives of employees who have suffered a life-altering termination or demotion. There is also the satisfaction of standing side-by-side with an underdog and battling the Goliath that employers invariably are.
I had done some pro bono work for employees in employment-related matters throughout my career and I had also defended employers against employee claims when working for Big Law. Once I hung a shingle, that was when I really rolled up my sleeves and went to work mastering plaintiff-side employment law.
3. When did you first start representing Dr. Jadwin and how did he find you?
Dr. Jadwin contacted me while events were still unfolding at his workplace. He found me on the internet, though he never could recall which site.
4. What was your initial impression of Dr. Jadwin’s case and what made you decide to represent him?
I knew I was in for a wild ride. The fact pattern was complicated, requiring me to undergo a mini-medical school education. Also, we were suing a County, which is not for the faint of heart. In California, they are protected by arcane immunities and regulatory requirements, not to mention all-too-often-sympathetic judges. My particular defendant, Kern County, also happened to be situated in a venue that is known among lawyers in California to be conservative, if not downright hostile to plaintiffs. The notable plaintiff’s attorneys who have brought suits in the Eastern District of California in recent years have either lost or gotten bad verdicts. Kern County ended up putting us through scorched earth litigation from start to finish. Nevertheless, I wouldn’t hesitate to do it all over again because Dr. Jadwin was clearly wronged
5. How much litigation experience had you had at the time you accepted the case?
This case was my first trial – bench, jury or otherwise. I had participated in trial colleges and gone to court a great deal to watch trials. I had successfully argued motions and settled cases. But I had never so much as second-chaired a trial before.
6. The video (above) suggests that the case was complex, involving multiple parties and claims. How did you determine the appropriate parties to sue and identify the universe of claims to raise?
The fact pattern was complex enough that a colleague said it could qualify as a law school final exam question. Fortunately, I had recruited a veteran attorney, Joan Herrington, who was knowledgeable about employment law. Together, she and I spotted all the claims and defendants and drafted the complaint over a period of several days.
7. How much discovery was involved in the case and what kinds of hurdles, if any did you face during discovery?
Discovery was extensive and nothing went smoothly. Defendant ultimately produced over 30,000 pages of documents in discovery. There were over 56 depositions. The defendant engaged in scorched earth litigation and was very contentious so I had to file countless motions to compel, motions to reconvene depositions, motions requesting sanctions, etc. I ended up re-convening six out of our first ten depositions because the defense lawyer was habitually making speaking objections and coaching the witnesses. It got so out of hand that the magistrate judge finally admonished and then sanctioned the defense lawyer several thousand dollars. To make matters worse, the defendant requested and was granted almost a year and a half’s worth of continuances, so discovery ended up dragging out for almost two years.
8. Did the defendants file a motion for summary judgment, and what kinds of issues did they raise? How much time was involved in preparing the opposition to the SJ motion?
They filed an MSJ. And I filed a cross-MSJ. Defendant’s MSJ ended up being over 700 pages long. Plaintiff’s cross-MSJ and opposition to defendants’ MSJ were each over 1,000 pages long. I also filed hundreds of evidentiary objections to defendants’ evidence. I had to work with little to no sleep for a month to get it all done. Luckily, I run a paperless office and there was an almost perfect overlap in the work involved in drafting an opposition and drafting a cross-MSJ. The issues defendant raised were predictable – they contended plaintiff’s evidence failed to raise a triable issue of fact as to any of his claims.
9. Was your client willing to entertain a settlement and was it discussed during the course of the proceeding?
My client was always interested in settling the case. However, the defendant never made a single offer. The court held a Mandatory Settlement Conference, but that went nowhere.
10. I understand that a co-counsel assisted you in the case. At what point did you bring the co-counsel on board, why did you decide to do so and how did you find her? What were the terms of the co-counsel relationship (if you are able to share details)
I brought Joan Herrington on board right before we filed the complaint in early 2007. I decided early on I would need help with this case due to its complexity and scale. I circulated a post on a local legal listserv seeking co-counsel and Joan was the only person to respond. I was surprised by the meager response given I was offering to pay an hourly rate. Joan had prior trial experience and was an employment law expert. She functioned as a legal consultant to me.
11. Did you tell your client that this would be your first trial? What was his reaction?
I told him from the outset. I told my opposing counsel and the judges too. I was very up front about that. My client and his wife were concerned but, to their credit, they stuck by me through thick and thin. They could see I was passionate about their case and determined to do whatever it would take to win and that really seemed to decide the issue for him, I think.
12. How did you assess your chances before the trial? What issues did you believe were strongest and where did you foresee obstacles?
Rightly or wrongly, I was convinced I would win. The thought of losing really didn’t enter my mind. In fact, I wasn’t even nervous during trial or jury deliberations. The biggest obstacle I foresaw was defendant’s smear campaign against my client. They lined up a parade of witnesses who testified that my client was a disruptive doctor who was arrogant, mean, nasty and pretty every much bad thing you can think of. I wasn’t worried though because I knew they were lying and I was confident the jury would see through them on cross-examination. In the end, the defendant became more damaged with each defense witness cross exam.
I can’t say any one issue was the strongest because I felt they were all strong. I had winnowed out the weaker claims before we got to trial. I think it’s important to do that to maximize credibility with a skeptical jury.
13. As described earlier, the case was tired in the Eastern District of California, which is regarded as an unfriendly venue for plaintiffs. What was your strategy for picking a jury?
The venire had 55 potential jurors and each side was given 4 peremptory strikes and 15 minutes for voir dire. In federal court, a plaintiff must get a unanimous jury verdict, so that made jury selection even trickier. I had a jury consultant, National Jury Project, who was helpful in preparing a juror questionnaire and evaluating the venire. They helped us spot the tort reformers in the box. Some of them were easier to spot than others. There were a couple who I felt were trying to sneak onto the jury. We also tried to categorize jurors as leaders and followers, which I thought was a useful paradigm. But in the end, I never abandoned my “gut feeling”.
14. Please share 2-3 highlights as well as low points of the trial.
I think all of my highlights were on cross-examination. The chief medical officer was lying recklessly on the stand on the first day of trial. I laid a trap with a series of questions then sprang it with a question he couldn’t answer. He sat there with a deer-in-the-headlights look for what seemed an interminable amount of time. The courtroom was dead silent. Then he finally said, “gee, that’s a good question.” And that was it, he was done. Defense never called him back to the stand, even though he was a key witness. I thought that set the tone from Day One.
Another highlight came when I had a department chair on the stand. He blatantly lied about a verbal exchange he had had with my client. As he testified on defense’s direct, I searched through thousands of pages of deposition transcripts on my computer until I found the impeaching testimony I was looking for. When I stood up on cross-exam and read the witness’s own words back to him in front of the jury, the witness looked stunned and could do nothing but shift in his chair and look embarrassed. That same exact scenario was replayed with several other witnesses. It wasn’t long before the jury started tuning out the defense completely.
As for low points, there were many. During my closing argument, which lasted an hour and a half, the trial judge suddenly started counting down the time remaining: “ten minutes remaining”, “five minutes remaining”, and “you’re done”. It was something along those lines. That was very disconcerting and I wasn’t able to discuss damages with the jury in any significant way. Another low point was the first two days of trial, when the judge sustained something like 78 out of 80 defense objections each day against me. I know this because my client actually counted and told me the tally at the end of each day. Once, a witness said to me, “I’ve already answered that question”, and the judge said “sustained” without looking up or hesitating. I said “But your Honor, the witness is objecting!” Another time, the judge sustained an objection against me before I could even get a few words into my question. It was pretty rough going from start to finish.
15. What was most expected about your first trial, as well as least expected?
I was surprised by how attentive and conscientious the jurors were. They seemed to take their jobs very seriously. They also seemed genuinely engaged in the case, often expressing their views on evidence by nodding their heads, crossing their arms, leaning back or forward, smiling, grimacing, etc. That was unexpected based on the horror stories I had heard about the jury pool in the Eastern District. I really think the system worked for us.
As for most expected, I would say it was the speed with which the judge moved the trial along. I had been warned by many that federal judges demand that trials move at a breakneck pace. Defense counsel and I were constantly scrambling to keep the “witness hopper” full each day so that there would be no dead time. The judge also was aggressive about telling me to move on from a line of inquiry that he deemed “exhausted”.
16. Did you employ technology during trial – and if so, what kind? What exhibits do you feel were most persuasive or helpful to the jury?
I run a paperless office and rely heavily on technology as a “force multiplier”. I used CaseMap, TextMap, Sanction and Adobe Acrobat among other things. The courtroom was equipped with LCD monitors in the jury box, in front of the judge, and on each counsel table so all I needed to do was plug my laptop into the court’s system and I was off to the races. I felt the most helpful exhibits boiled down to one smoking gun deposition video excerpt, a few smoking gun memos and a demonstrative exhibit prepared by my forensic economist showing wage loss calculations. During deliberations, the jury submitted a note to the judge asking that my economist’s demonstrative exhibit be admitted to the jury room, presumably so they could calculate damages for plaintiff. That tipped us off that we were going to prevail. The judge wouldn’t permit parties to use any blowups except during closing arguments, and he discouraged the playback of deposition videos.
17. How did you feel when the jury came back with its verdict?
It really didn’t feel like much at first because I had expected to win, but as I talked to other lawyers afterwards, I was surprised that everyone thought I was going to lose. One colleague who had reviewed the MSJ briefs said he thought my case was “unwinnable” because of the defendants’ smear witnesses. Another colleague told me he thought I would never get a unanimous verdict given the conservative venue and the economy. Over time, I have come to appreciate this victory more and more and now recognize it was a turning point for my practice.
18. Did you speak with the jurors afterwards? If so, what reasons did they give for finding in your clients’ favor?
No, the jurors elected not to speak to either of the parties.
19. How does your client feel about the verdict?
He views it as a moral victory and feels vindicated, particularly given the horrible smear campaign the county subjected him to both before and during trial. Several times during depositions and trial, one of the defense lawyers would sneer at my client and say in a snide voice, “Good morning, David”. The county litigated this case in a ruthless manner, with a lot of ill feeling.
20. What steps come next?
The judge still needs to conduct a bench trial on two remaining causes of action, then will come the inevitable post-trial motions. Dr. Jadwin is considering a possible appeal, and so is Kern County.
The jury unanimously found the defendant had “willfully” violated the Federal Family and Medical Leave Act (“FMLA”). This means that Plaintiff’s $500,000+ economic award should double to $1+ million due to FMLA liquidated damages.
We have submitted our bill of costs and will submit attorney fee petitions, seeking statutory attorney fees under FMLA, the California Fair Employment & Housing Act (“FEHA”), and the California Family Rights Act (“CFRA”). I put over 3,500 hours into this case so I will be seeking a substantial statutory attorney fee.
21. You mentioned that this was a three week trial and presumably, involved several more months of preparation in advance? As a solo, how did you manage the rest of your cases and your practice while immersed in trial?
Because I am a true solo, I had no choice but to refuse to take on other cases during the three years I was immersed in this case. This case demanded my full-time attention, and then some. On the few other cases I had going, my clients were extremely patient with me for which I am thankful.
22. How has your victory affected your practice? Are you receiving calls from other clients or referrals from other lawyers?
Yes, I am getting invitations to co-counsel cases from other lawyers, which is flattering. I even got a personal message of congratulations from a high-profile trial lawyer whom I have long admired from afar and that was an unexpected surprise. I enjoyed telling my current opposing counsel and other clients about my victory. It’s all been very exciting. Mentioning a seven-figure recovery also makes signing up potential clients a lot easier.
23. Now that you’ve gotten your feet wet, are you looking forward to more trials?
Absolutely. Trial is addicting. I can hardly wait for my next one. I definitely prefer it to the pre-trial slog.
24. What advice do you have for relatively inexperienced solos who want to try cases – or who receive an opportunity as you did in this case?
Get an experienced attorney involved, whether as a mentor, a consultant, a co-counsel or otherwise. That will help you avoid all the newbie mistakes you would otherwise make.
Go to court and watch trials. Don’t just watch the superstars, watch other attorneys and learn from the mistakes they make.
Attend trial colleges where you have to give opening statements, closing arguments, etc. in front of your peers. It’s even better when they’re videotaped and critiqued afterward.
Always be at least more prepared than your opponent, even for the most insignificant motion hearings. It sends a message.
Victory is always within reach when you have the truth on your side, no matter how high the odds are stacked against you.
25. Any final remarks?
Due to news propaganda, too many people think trial lawyers are greedy, unethical ambulance chasers manipulating a jackpot justice system to reap outsized verdicts. But I have learned firsthand from this case that trial lawyering is a very very hard way to make a living. It involves a formidable learning curve, high levels of personal and financial risk, endless work, and abuse from all directions. It takes incredible levels of dedication and perseverance to do this work. And no one seems to report on the countless just cases that suffered ignominious defeat and disappeared into oblivion. It’s a shame that public perception is so opposite of the reality.
A renowned trial lawyer, Gerry Spence, has repeatedly said our legal system is broken. Having gone through this case, I agree with him. My client and I should never have faced the kind and degree of obstacles that were thrown in front of us from all directions. While the system did work in the end, the process was harrowing. I think this case really opened up the eyes of my client, his family, and many others who were directly involved. I can only hope that they will go out and spread the word.
If people have any questions, I’d be happy to answer them. People can reach me by going to my blog, http://www.CALaborLaw.com, and clicking on the “Ask an Attorney” tab at the top or calling me at (213) 596-0486.