EP 925- Tips on a Slip and Fall Win

Episode Notes

Transcript

Announcer:

Welcome to Heels in the Courtroom, where the trial lawyers of the Simon Law Firm break down what it takes to win in the courtroom and in life.

Elizabeth Lenivy:

Hello and welcome back to another episode of Heals in the Courtroom. I’m Liz Lenivy and I’m joined by Elizabeth McNulty and big trial winner, Katie St. John. Woo-hoo.

Katie St. John:

Thank you.

Elizabeth Lenivy:

Katie, we are so proud of you for your recent trial verdict, and we are so excited to learn more about the case and share some of the facts of the case as well as some of the things that you’ve learned. Obviously, this is a case that may go up on appeal, so we’re going to keep things pretty high level, but still there’s some general takeaways that we can share with the listeners of the podcast. So I want to start with you just giving us a general fact pattern regarding what this case was about.

Katie St. John:

Sure. So this was a slip and fall case that happened at Mercy, their campus on Ballast. It happened in September of 2021. Our client had just begun working there at one of the medical offices in Tower A. She was in her training period. She had been working there for about three weeks. And as she was walking from her car into the building, it was misting. It was raining. Stepped on the handicap ramp, which is coated with a blue coating system. And when she did that, she immediately slipped and fell and suffered a pretty severe fracture dislocation of her right ankle, which she eventually underwent a surgery and she’s got some plates and screws in her ankle now. We were suing Mercy for negligence and a premise liability. Those were our two theories. They denied liability 100%, and it was kind of like a failure to maintain, failure to inspect.

It was kind of like the main theories that we pursued.

Elizabeth Lenivy:

Okay. And so how long did the trial last?

Katie St. John:

Four days.

Elizabeth Lenivy:

Did anybody try the case with you?

Katie St. John:

Yes, Johnny Simon.

Elizabeth Lenivy:

And how did you and Johnny split up your roles at trial? What did you get to do?

Katie St. John:

So we had two experts. We had a safety consultant expert and Johnny handled that expert. And then we had an orthopedic surgeon and I handled him. And then I put on our client. There was an eyewitness to the slip and fall who worked at the valet, like the valet center at Mercy. And so Johnny handled that witness. And then I did the corporate rep who was also the manager of the facilities department. So I took her and then there was the risk manager that Johnny put on. And then there was a security guard officer that kind of investigated the fall afterwards. I handled him, and then there was the defense expert.

Elizabeth Lenivy:

What kind of expert did the defense hire?

Katie St. John:

So the defense hired a … He’s also a safety consultant, but he performed a specific type of testing on the ramp, on this handicap ramp using a tribometer.

Elizabeth Lenivy:

And what is that?

Katie St. John:

So it’s basically a device that measures slip resistance and you put it down onto the surface and it’s like a button you press and it basically mimics a heel strike and then it comes up with a number. And the number reflects whatever surface you’re testing, what its slip resistance is. Like the ADA, for example, puts out standards and says, if you’re on this type of surface, if you do a tribometer, it needs to be a point whatever, depending on the type of surface, depending on who’s anticipated to use the surface, et cetera. And then there’s different organizations like ANSI and they, again, have their own set of standards. But basically, because we’re dealing with the ramp, it was sloped. And so the tribometer, they take into account slope because obviously if something slope, you need more slip resistance for it to kind of counteract the sloped surface.

And so that was kind of what they were arguing. Our safety expert did not do any testing on the ramp. He is qualified to use the same tribometer and he has the same tribometer, but when he came and did his inspection, he did not use it. And so that was kind of their whole theory was that their expert came, he tested the surface. The surface had sufficient anti-slip properties, and so nothing else really mattered. Just focus on this reading. And so we had to work our way around that.

Elizabeth McNulty:

The slip and fall happened in 2021, right? And then the trial was in 2025. Were the inspections close to the time of the actual fall or closer to the time of trial?

Katie St. John:

Closer to the time of trial. It was like a month or two before trials when he did the inspection. And so basically they were saying that the ramp needed to be at least a 0.5 and that their ramp tested closer to a 0.7. And they were saying that’s even four years after the fall. So presumably at the time of the fall, it was even better in better shape. And the expert that they used, it was interesting because this was the first time in my experience where we thought we genuinely had a true conflict of interest. And so in searching for experts back in 23 when we filed the case, this was an expert that had a conversation with our office and we ultimately didn’t go with him. And then come 2025, right before trial, that’s who the defense disclosed. And me being new on the case, since I just started working here, I didn’t know that.

And so in preparing to take his deposition, I was talking with Johnny and Johnny was like, his name sounds so familiar. They claim it wasn’t a conflict of interest because he never signed a contract. I don’t know if it mattered to the jury or not. We certainly let it play out for them a little bit. It was interesting just because during his deposition, I was able to kind of ask him some questions about how do you screen for conflicts of interest, et cetera. And it was also the first time in my career where I got an errata sheet back after the deposition in which he, I guess the expert, it clicked for him when I was asking all the conflict of interest questions. It clicked like, “There must be something here.” So he went back and changed on the errata sheet his answers about that it wasn’t basically explaining what his answer was going to be in front of the jury for why there’s not a true conflict of interest.

Elizabeth Lenivy:

I am admittedly not maybe the most knowledgeable about errata sheets, but my understanding has always been that it’s more of, “Oh, you got this one word wrong.” Or the court reporter wrote down that I said that the stoplight was red, but it was actually green, and I can testify to that. But it sounds like he was giving full paragraphs. Here’s an essay on why my answer was … It doesn’t sound like it’s proper use of an errata sheet.

Katie St. John:

Yeah. And Johnny and I definitely chatted about that, but I think Johnny ultimately said that in Missouri, the errata sheet can be used for something like this. We didn’t really get into that. I mean, it definitely came up. I mean, we just used it during his cross-examination, basically kind of like as impeachment testimony. And ultimately, it was portrayed to the jury that maybe I misled him in the deposition and instead of just flat out asking him about the conflict of interest, I was just getting him to make concessions about being an expert and how important it is to be unbiased and how important it is to … If you learn information from one side, you can’t then turn around and go testify for the other side, whether or not the plaintiff chose you or not. And ultimately, I think it goes more than anything. I think it goes to an expert’s credibility because he had told me he has this conflict of interest process that he undertakes to make sure, and clearly he didn’t because he told me, “Oh, I check my emails, I run the name searches.” And if that would’ve been done, I think that it would’ve popped up.

So it was interesting.

Elizabeth Lenivy:

That is interesting. So can you tell us what the final outcome was for your client?

Katie St. John:

Yeah, so it was a verdict in favor of the plaintiff for $600,000 and it was in terms of they had comparative fault, and so it was 80% of fault, the jury assessed 80% of fault against Mercy and then 20% of fault against my client.

Elizabeth McNulty:

Congrats on the verdict again. We all know that slip and falls in St. Louis County are hard fought, especially in the rain. So it’s really impressive, especially with the comparative fault. I think your client’s always going to take a hit in cases like that. You said that you took some of the defense witnesses. Did you call any of them adversely in your case?

Katie St. John:

Yes. So their facilities manager, I called her adversely in our case, and then their risk manager, Johnny, handled adversely. And the facilities manager, we had taken her deposition actually twice because it was kind of weird. We took her as their corporate rep and then they disclosed her as a non-retained expert and they were kind of using her as an additional non-retained expert because our safety expert focused a lot on they don’t have sufficient policies, procedures, inspection, maintenance. And so that’s why I think they kind of designated her as an expert to kind of rebut all of that. Yes. So I did call her in our case in chief and then they did part of their direct with her and then they recalled her in their case as well, but it was very short.

Elizabeth Lenivy:

I think every premises case I’ve ever tried, we have adversely called a defense corporate rep. And I think that’s important because you need someone to talk about the premises. You need someone to talk about what standards they follow, what policies they follow about the grounds itself. That’s a phenomenal result. Slip and falls are so tough because I think juries automatically just want to blame the plaintiff. Of course, you were rushing, you were being negligent, you weren’t paying attention and you fell and it happens and you shouldn’t blame other people. So you’re automatically overcoming such a, I think, tough bias because you put yourself in that position. It is an interesting fact to me as well that this was an employee, right? So this is not a guess. But obviously with this case possibly going up on appeal, we want to keep things high level, but I do want to talk to you about just some general lessons that you’ve learned.

I think we are in agreement that every trial you go through, you learn something new and you take that with you. So I’ll start with, before you got to trial, was there anything in particular that happened in this case that stood out to you and that you can share as a lesson for our listeners?

Katie St. John:

Yeah, absolutely. So I think throughout my five years of doing this, I think there’s always some sort of … It happens in every case where right before trial, you start really digging your heels in and both sides start maybe more depositions are happening or what have you. So in this case, specifically, there was a lot of activity in the three to four months before trial, which in our mind, I feel like as trial lawyers, that doesn’t seem like that big of a time crunch. I think it’s something that’s unavoidable when you have a big caseload. I think sometimes this is just when witnesses are going to be produced or documents are going to be produced or what have you. I don’t think that there’s any perfect system that you can employ to combat that. I think it just happens. It’s like the nature of our practice.

But in this specific case with discovery, we’d never had a discovery cutoff. And we had documents that were produced to us that were directly on point with maintenance and inspections of the property a week before trial. And that’s the first time that we’re getting documents. And so then it’s like, if you send them to your expert, well, then your expert, does he have a new opinion? Does he have to sit for another deposition? And so the discovery in this case certainly really got heated towards right before trial had started. And it was mainly just because we were getting some new documents and did the documents, were they properly requested? Were they covered in the request for production that we previously sent or were they producing them? Did they just find them? Getting to the bottom of that on top of preparing for trial, like I said, I think it happens in every case, but it was the first time where I had a direct front seat and I was the one trying to take in the documents, figure out next best steps, what’s going on, how is this happening type of thing.

And so when I practice more on the Illinois side, it was standard when we got a trial date, we always entered a case management order. I’ve learned now that I’m being on that I’m more on the Missouri side, that’s not always the case, but you can enter one if you want to, you just have to do it. And so I know that my paralegal and I, when we kind of debriefed, we felt like that’s something that we absolutely will be doing. And there wasn’t a ton of documents in this case anyways, but when you’re going to trial and you think, “Okay, I’ve got X amount of documents and this is what my case is about, ” and then you get an additional 200 to 400 pages and it’s a case where it’s a premise liability case and these are about the premise. I mean, you can’t just ignore them, you’ve got to unpack them and see what’s in there.

So that’s one takeaway for sure in terms of doing discovery and making sure you are being extremely thorough when you get those first set of answers. When you’re starting out a case, you don’t know the Rolodex of documents that a corporation may have, right? You don’t know what they call them. They could be inspection reports or maintenance reports or whatever. So it’s impossible for you to have a request for production that specifically calls for the title of the document. But what I learned and with great guidance, honestly, from the court in the case, is that we got the documents, we got some documents back in 2023, 2024. So now what I’ve done, and I just did it recently where it’s like, if I get the initial set of documents, I’m going to go through that document production and then I’m going to send another set of requests that have the specific titles that their own documents refer to that are applicable to my case.

And that’s what, again, I think it kind of depends on how the court is going to view your request in discovery fights, but I think that if you do your due diligence on the front side or the court is more willing to entertain a discovery dispute, and it would be more favorable when you’re making those arguments during trial. I genuinely did everything I could to try to get these documents, and that’s why this dump of documents is not fair. So that’s one thing for sure.

Elizabeth Lenivy:

Scheduling orders I think are so important. And the way I present them to courts, because sometimes I’ll get a little bit of pushback from more rural judges about, “Well, I’m not going to give you a trial setting yet because we don’t give them till you’re done or closer to trial.” I go, “Okay, Judge, I understand that. ” Respect what the court does, but can we at least get a scheduling order in place so that there are deadlines and everyone is on the same page and we’re not coming back up here every couple of months for a motion to compel because we can’t get things done. We would like some sort of deadline calendar in place for us. And every time I’ve had a judge say, “That sounds like a great idea.” And in that, I typically include a cutoff for discovery.

Elizabeth McNulty:

That’s so interesting. I’ve always been told no discovery cutoff deadline, never agreed to one.

Elizabeth Lenivy:

Oh, I- Well, I cut it off. I mean, it’s always close to trial. It’s close to trial. I think that that’s a good thing because it’s also at the same time that we put in motion cutoffs and things like that. So we’re not getting hit with a motion for summary judgment when I’m trying to get ready for pretrial and things like that.

Elizabeth McNulty:

Right. No, I understand. I guess this strategy behind no discovery cutoff deadline is like you don’t want to be put in a position where there’s something that you learn right up to that and then you aren’t able to learn more about it if need be. But it does sometimes put you in the position where you’re taking depos the night before trial or whatever, which is stressful.

Katie St. John:

We had a deposition the first night of trial of a treating doctor. So it was crazy because it’s like everyone knew that doctor’s name since 2021 and then we were just now taking his deposition. But I think the interesting thing about a discovery cutoff, of course, and as attorneys, we always, each side will give you an extension, but the discovery cutoff, the reason why I think it’s an interesting thing to consider, I guess, depending on the case and who the defendant is in the case. In this specific case, based off of the discovery and the discovery disputes that we had, we ended up filing a motion for sanctions. And I think it would’ve been beneficial for us had we had more deadlines in place to show just how prejudicial and unfair the document dump was and how … I just think it would’ve been helpful.

It would’ve been another said like, “Look, the parties agreed to X, Y, and Z, and they just flat out were not participating in good faith.” So I think that it can be helpful for those purposes too, like organization on the front end as well, so that you’re not doing discovery right up to trial. But I think it’s helpful because if either side does continuously violate the agreements that you put in place, it gives you a little bit like an added layer of protection. And of course, I’m sure there’s a devil’s advocate that side to this that I’m not thinking of, but at least because it’s fresh on my mind right now, it’s something that I want to more seriously consider in cases going forward.

Elizabeth Lenivy:

So the motion for sanctions, that’s related to this couple additional hundred pages of documents that you got. The other thing that I thought about was, and I don’t know if it necessarily affected your case, but you’ve got an expert. You’ve got experts that they rely on the documents that are given to you by the other side. And so if you are suddenly having to give them a bunch of new documents, are they going to change their opinions? Are they going to add to their opinions? Am I under an obligation to now produce my expert for a second deposition because their opinions have changed based on your failure to participate in discovery beforehand? So that can throw an extra added layer of headache in there for you.

Katie St. John:

Yeah. And that did happen in this case and we did offer our expert for a second deposition based on the newly, the documents that were provided to him. I don’t think it ultimately changed his opinion. Did it add additional basis for his opinion? Yes. And that’s why we offered a second deposition. I mean, you could make the argument that it added additional basis. It was within the class of documents that he had reviewed. It was just more documents that were directly relevant to the condition of the premise and Mercy’s knowledge of the condition of the premise before my client slipped and fell. That’s why they were such a big deal. That’s the other thing that I kind of had to manage is when you do have experts in the case, right? They’re frustrated by it as well because not all experts love to cram or jam pack their schedule before a trial like us attorneys naturally do.

I, for the first time again, am having to explain to him, “Look, this is just kind of like how it worked out. It’s nothing that we could have done differently.” So that’s definitely the first time I’ve really had to kind of help smooth out that transition and get us into a position where we all could proceed in a cohesive fashion.

Elizabeth Lenivy:

Yeah. That’s something that we don’t talk about often. I think we so often think about the relationships and managing personalities with other people on our team, opposing counsel, the client, but the relationship with experts is huge. And the last thing experts want is to get a whole bunch of new material that may, and it sounds like it didn’t happen in this case, but in other cases may materially change some of their opinions for better or for worse. And you’re right, they don’t operate on the same kind of schedule as we do. And I think so often we work with doctors, if they have to come and travel for trial, that really throws off their scheduling and what they can do with patients. And so they never quite blame the other side, right? It’s always because you’re the person that they can take out their frustration on.

So that is an additional thing that we have to manage. You mentioned the motion for sanctions. Did anything come of it?

Katie St. John:

No, no. Nope.

Elizabeth Lenivy:

All right. Next going

Katie St. John:

On. No. The other thing I wanted to add that I just thought of when you were talking about managing experts and schedules, we tried a slip and fall case that occurred during the rain

At the same time St. Louis was experiencing a snowstorm. So the day we selected the jury, we got dismissed early because the courthouse was closing because of the slippery conditions. So we’re talking all about hazardous conditions when we’re trying to pick a jury and not only did that happen, but also the fire alarm went off. So everyone had to evacuate the building from the third floor down. So everyone had to take the stairs and stand outside during a snowstorm until the building was cleared to go back in. So I mean, just again, unexpected, but then one of our experts could not make his flight in because of the snow. So my orthopedic doctor, we had to arrange to call him via Zoom and the court was obviously agreeable because it was simply out of his control. But when you talk about schedules, he is a treating physician, he had like 50 something surgeries and a hundred something patients he was going to see the remainder of the week.

He can’t just be like- That’s

Elizabeth Lenivy:

A crazy number.

Katie St. John:

It is. But he couldn’t just tell all those patients to, sorry, I got to go testify at trial. But anyway, so that was two things that happened. And I did opening statements and I thought to myself, I think I need to mention the fact that I’m trying a slip and fall case in the midst of a snowstorm and it’s not lost on me that it’s a little bit ironic, but also shows the serious nature of like so many times people are just like, “Eh, slip and fall, like there’s bigger fish to fry maybe.” But it’s kind of one of those things that, especially when the conditions as they were as while we’re in the middle of trial, it was important. So I started my opening off with that and it was a smooth transition. I think the jury appreciated it, at least I hope. But anyway, so back to the motion for sanctions.

Yeah, no, it was denied.

Elizabeth Lenivy:

Okay. Okay. Did you get any type of reprieve or was there any action taken for the fact that you got so many documents so late in the case?

Katie St. John:

We were offered a continuance, but-

Elizabeth Lenivy:

No plaintiff’s attorney wants a continuance, right?

Katie St. John:

No. And it was like, what is that going to do at this point? I mean, the prejudice, in our opinion, the prejudice was kind of already done. I mean, they got to prepare their witnesses with documents that we didn’t, and they can’t unprepare their witnesses. It’s just like, you can’t change the playing field. So ultimately with the motion for sanctions, we didn’t end up taking the continuance, but there was another kind of discovery issue in that we had filed a motion for an adverse inference. There was a lot of firsts for me in this trial. My first trial at Simon Law Firm, my first time arguing a motion for sanctions, my first time filing a motion for an adverse inference because of spoliation of evidence. So lots of firsts for me, but we did end up getting an adverse inference.

Elizabeth Lenivy:

Okay. So there was an issue with some evidence not being preserved?

Katie St. John:

Yes, video footage.

Elizabeth McNulty:

Can you tell our listeners who might not be lawyers what an adverse inference is?

Katie St. John:

I will do my best, although it seems to be still a little bit fuzzy to me. So essentially what happened was, in this case, it was specific to video footage. The client’s testimony was that when she was in the emergency room and she spoke with the security officer, she had requested the video footage of the slip and fall, and she was told, “That’s no problem. We’ll get it for you. ” And that was on the day of the fall. And then shortly thereafter, she had originally hired another attorney who sent a preservation letter. So that was our second request for the video. And that came about 30 plus a little, I can’t remember, like 38 days maybe after the slip and falls when Mercy received the preservation letter. And then obviously throughout discovery, we had requested it. There was some testimony that video footage was available for 90 days, and then there was testimony that it was only available for 30 days.

Either way, we argued that because Mercy did not take the necessary steps to preserve the video footage upon the first request, that we were able to tell the jury that they could assume that the video would be bad for the defendant. That was the adverse inference, and we did it in our rebuttal case. So in my opening, I was able to mention the video footage and her requesting the video, the facility manager. She’s the one that had testified it was available for 90 days. They ended up then, that was another deposition we took the week before trial there, security, IT, I don’t remember his title specifically, he testified that it’s only ever been available for 30 days. So the jury was able to hear the evidence that one person said it was available for 90, one person said it was available for 30. Plaintiff requested it, a preservation letter was sent, plaintiff requested it again through discovery, and then that’s what they heard in our case, defense case.

And then in our rebuttal case, we read the adverse inference directly from the judge, and then Johnny did closing, Johnny and opposing counsel argued it in close.

Elizabeth Lenivy:

Okay. Yeah, that’s always interesting whenever video footage disappears like that because I would think, me personally, if I was a risk management and I know someone has gotten themselves seriously hurt on my property and there’s video footage of it, I automatically assume that needs to be saved. So was it just their excuse that they just, what, they taped over it or?

Katie St. John:

Yeah, that it automatically gets taped over on day 30 and there’s nothing that they didn’t get the request via the preservation letter until day 38, I think is what it was. And that the security officer had testified that he does not remember, he does not recall the plaintiff asking for it. The plaintiff testified that she absolutely remembers asking for it because it was so bizarre to her how she slipped and was … It was a fracture dislocation. She couldn’t even get up. And when they picked her up and put her in the wheelchair, she described her leg as dangling. Oh my God. And if you look at the x-ray images, and again, it was so … I’m no orthopedic doctor, but it was so obvious that even me looking at these x-rays, I could see the dislocation.

Elizabeth Lenivy:

Bones aren’t supposed to look like that.

Katie St. John:

Yeah. And I could see all three fractures. I mean, it was … Anyway, that was kind of like, it was, again, I think a credibility thing. And honestly, the security officer from Mercy was, he was the nicest guy ever, super nice guy. And our client was great. I wish I could know what everyone on the jury genuinely thought about the video because I think that’s the other interesting thing about being a trial lawyer. You’re in the thick of it, right? And something seems like such a big deal to you like, “Oh my goodness, how could the video evidence be deleted?” But I don’t know if it was a big deal to everyone else. I really don’t know.

Elizabeth McNulty:

I feel like things like that can oftentimes just be a gift to you. People these days especially love a conspiracy, love a coverup, and they love to believe that there are bad actors out there that would do the … I mean, I don’t know if they love to believe it, but I think they certainly buy into it. And I think we are in the position where we can make a lot of hay out of it when things like that happen. And a video sometimes just is so innocuous. It’s like, “Oh, a lady fell down. Okay. I don’t know whose fault that is, but it got deleted and like, ooh, spooky.” It’s just so much more to grab onto there.

Elizabeth Lenivy:

Yeah. I think that sometimes I think about how much TV and movies make trial look more exciting than it actually is. Certainly. As frustrating as it is to not have the video. That is the kind of thing that will get a juror’s attention. Evidence was destroyed. It wasn’t that it was just lost. It’s that they knew. And when I say, if I’m a risk manager, blah, blah, blah, and I know to save the tape, I don’t think that’s me as a lawyer talking. I think that’s anyone with common sense knows that if you know that there’s an injury and there is video footage of it that we can look at and everyone can judge with their own eyes and you as the only person or entity that has control of it suddenly poof, it’s gone. Conspiracy.

Elizabeth McNulty:

100%.

Elizabeth Lenivy:

Yeah. That interests jurors and that’s how you win trials is you keep their interest and you keep their attention.

Katie St. John:

That was definitely Johnny’s theme of closing is the coverup’s worse than the crime. I think he has flagged it. Love that thing. Classic.

Elizabeth Lenivy:

So I know something that you had talked to us about throughout your trial prep and then after the trial itself was obviously the position that you were in, you were the youngest Lawyer there by far, you have very significant roles in the workup of the case as well as trying the case. And I think we’ve all been in that position where we’re the youngest lawyer, we’re the only woman there besides maybe the paralegals. And so with that experience, did anything unique happen there or anything stand out to you that you can share with us?

Katie St. John:

Yeah. It’s something that I’m still, and I probably will be for the foreseeable future, fine tuning and working on, is working on, I don’t want to say controlling because I think that you don’t want to lose your passion for the case, no matter what the case is. Your demeanor when you are constantly being called to a sidebar as trial goes on and you start to get a little bit more fatigued as this was only a four day trial, so not super long, but the constant disagreements that you have with your opposing counsel and your demeanor and how you handle that, both with the court and with the jury. I say this understanding that some people may disagree, but I feel like as the youngest and the only female attorney in the room, people are, they expect me to be the one to lose my cool or to panic and not know what to do in this situation.

And I think that’s something that I’m still working on. I don’t always know the best way to handle it. I do know in talking with John Simon and preparing for this case, he told me, regardless of what you do, you have to be able to make a decision and you have to be able to have a response and make a decision. Know what you’re going to do. Even if you end up, maybe it’s not, you’ve learned after the fact that you could have done something differently, you have to make a decision because the fear of, or whatever it may be that causes you just to panic and do nothing, he’s like, “You want to avoid that. ” But yeah, I mean, you don’t want to be like, “Oh, of course the young sassy female lost or cool and snapped or whatever it is. ” I mean, it’s something that I’m cognizant of that people may think.

And I will tell you, our jury was predominantly older males. There was only three females on the jury.

Elizabeth Lenivy:

Ooh.

Katie St. John:

Yeah.

Elizabeth Lenivy:

It’s been a while since I’ve heard of a jury that that was that man heavy, that many men.

Katie St. John:

Yeah. So I’m open for your tips and tricks, ladies. And I think some of our listeners would be as well.

Elizabeth Lenivy:

So I wrote down a word while you were talking, because after you said the young female sassy lawyer, losers are cool. And I feel like there is such a double standard where men get to be passionate and justifiably angry and all of that. And for women, you take one baby step too far and you are shrill. And that is something that I think we have to be so careful about that we’re not appearing shrill. And I hate that. I hate that word and I hate that we have to deal with it. And Elizabeth, I saw you make a face when I wrote it down, but it is something I’m very aware of. And I’m also very aware that when I’m up there and I might be the only woman that there’s a lot of eyes on me naturally because of that, because I look different, because I stand out.

I’m amongst a bunch of men that are probably all about the same height, have the same haircut, are wearing the same suit, and I look different. And this has taken me a long time to work on, and I think I’ve said this before, but I’m the kind of person, if my mouth doesn’t say it, my face will. Yes. I’ve really had to work on that. And the thing about the constant sidebars is, and I haven’t had this happen to me very often, but every now and then I’ll be in the middle of a cross-examination and I’m like, I’m killing it. I know I’m killing it. And I keep getting interrupted with these sidebars. And what I’ve learned to do is you don’t get upset, you don’t take the bait. What you do is you stay cool. And honestly, I make eye contact with the jury.

Every time I get called up for a sidebar, I look at them because I want to see, are they getting as exasperated as I am? And I will have jurors … I one time had a juror, I got called up for a sidebar and I looked, I made eye contact with him and he just slumped down and he’s like, “I’m sorry.” He whispered it to me and I was like, oh, he feels sympathetic towards me because he knows that we’ve got them. He knows that and he knows that this is desperation on the other side. And so that’s what I’ve learned to do is instead of making a face, instead of getting upset, you just roll with it and you look to the jury to try to get them to feel the same frustration and again, exasperation as you are. And then the other trick is regardless, win, lose or draw at the sidebar, same reaction.

Okay, thank you, Judge. And you go back and you jump right back into whatever was in your outline, like you haven’t missed a beat. And if it’s something that you’ve lost, you don’t acknowledge that you’ve lost it. You say, “Okay, I’m going to switch gears. Let’s talk about this. ” You get the jury back into it, but you don’t make it apparent that anything’s happened.That’s the way that I’ve tried to get around it is you try to show the jury that you’re paying attention to them, that you know this sidebar is a waste of their time. And I think that’s also really important when you may be the one that has to make objections that you don’t call too many sidebars unless it’s really egregious because jurors, the thing that I think jurors hate most is you wasting their time.

Elizabeth McNulty:

Yeah, I’d say that’s great advice. I think you bring up a good point. A lot of times the eyes are on us because we’re the one that’s different in the room, but I think that that’s a position of power or it can be if you use it to your advantage. I think it’s really, really important that we control our emotions and you choose when the jury sees you acting in the way that you feel when you want to. I think it’s really important that we don’t lose our cool. Whenever I saw lawyers do that in trial before I became a lawyer, I thought that they were doing that on purpose. It was like theater. I worked closer with some of them and realized that no, that’s just their personality. They’re just popping off and they think that that’s okay. And I was just like, “Oh, okay, that might work for you, but that’s never going to work for me.

” A lot of that is just because I’m a pretty even keeled person. It takes a lot for me to lose my coal over much of anything. And I think it’s important to put that into practice every day at work. You can’t just show up at trial and be like, “Okay, this week I’m going to control my emotions.” It doesn’t work like that. You have to do it in easier moments. You have a phone call with opposing counsel and they’re a jerk. Okay, well, you have to keep it together because so in moments at trial, when you’re really stressed out and feeling really afraid at the edges, you can keep it in check there too because it becomes easier the more you practice it. And I think that that kind of sucks sometimes that we can’t just act however we want. And I think that a lot of men do that.

It’s just not something that I personally think works to our advantage. Like you said, Liz, I think it comes off quite poorly, unfortunately for women. So I do think it’s really important to control, but I think that that can become a superpower if you put it into action because you just seem so unbothered. And I think people really respect that. I think jurors are like, “Okay, well, that must not matter if she doesn’t care about it. ” But I also have no control over my face and I kind of don’t care about it. I want people to know sometimes that I think what they just said is stupid, but I’m not going to say it. You could just say it with your face. And I actually just prefer that. A picture’s worth a thousand words.

Elizabeth Lenivy:

Yeah. I unfortunately know I say things with my face. And I had a witness call me on it one time where she was saying something that I thought sounded so outrageous. And she was like, “I can tell you don’t believe me because of how your brow is furrowed.” I was like, “Oh, okay, let me unfurrow that. ” And Elizabeth, I will say having tried a couple of cases with you, I am always really impressed by how much you keep your cool and how little reaction you show to some of the nonsense that comes up. I think that’s very beyond your years. I also have to imagine that it is mildly annoying to the other side, at least, that if they know they can’t get under your skin, like you said, it starts with depositions. If they know that they can’t rile you up in a deposition, then they know that you’re going to stay cool, calm, and collected during trial.

And that is, I think, is key, is that you feel so confident in yourself that it’s not going to show up in an explosive way. And it makes me, sorry, this is unrelated to trial, but I’m thinking about it this morning because I got cut off in traffic and I’ve never been the person that’s flipped the bird to people. I feel like that’s really aggressive and that’s just an explosive style that’s not my own. But what I do now is I’ll just give people a thumbs down. As I drove by, I go thumb bad driving. And I will say, it makes people even more angry than flipping on the bird. And I take that though into this work where I’m not going to yell and scream and pound the table and flip you off and tell you to go jump into traffic or whatever, but I might give you a thumbs down and say, “I’m real disappointed in you.

I expected better from you. ” And I think it sets people off more again, because not only are you staying calm and showing that it doesn’t bother you, but it shows that you are so in control of your emotions and so in control of your own case. So that’s how I think we have to handle our demeanor.

Katie St. John:

I hope I see more thumbs down on your next videotape deposition. I hope I see your …

Elizabeth McNulty:

Just react that way on Zoom,

Katie St. John:

Just

Elizabeth McNulty:

Like thumbs down.

Katie St. John:

Thumbs down. That’s good. Yeah, no, I think that’s the other great thing about being a young female attorney at this office is that there’s great people like the two of you and Mary Simon too. I can give thumbs up too and have great advice and talk. I went to you all before trial a ton. And so that’s another really not on the topic of demeanor, but important practice tip for any young female attorneys making sure you’ve got that great support system around you.

Elizabeth Lenivy:

Yes, absolutely. And Katie, again, congratulations. It’s a really phenomenal result. It’s always great to start off your career with a big win, especially you had such a large role at trial. So again, congratulations. You should be very proud of yourself. We’re very proud of you here.

Elizabeth McNulty:

Excellent work.

Elizabeth Lenivy:

Thanks. And thank you to our listeners for joining us for another episode of Heals in the Courtroom. Remember, new episodes drop every other Wednesday, and if you ever want to reach out to us and join the conversation, you can at heelsinthecourtroom.Law. Thanks so much. See you next time.

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