EP 622- 40 Years of Law with Don Schlapprizzi

Episode Notes

Transcript

Announcer (00:01)
Welcome to The Jury is Out, a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm, and St. Louis attorney, Erich Vieth.

Erich Vieth (00:19)
Welcome to another episode of The Jury is Out. I’m Erich Vieth And we’re here with Don Schlapprizzi . Good morning. It’s great to see you. Thanks for coming out.

John Simon (00:21)
I’m John Simon.

Don Schlapprizzi (00:27)
Grateful for chance to be at the podcast. Thank you.

Erich Vieth (00:31)
You know, I mentioned when I came into the room, I met you when I was a young attorney at Evanston Dixon. And I remember you were a seasoned attorney and they told me that he knows what he’s doing. He’s going to on a deposition, he’s going to get right to it. And that’s how I met you, I think maybe once or twice way back when. But I’m not trying to make an issue of your age, but you’ve seen a lot. And I’m just wondering if we can start there.

Don Schlapprizzi (00:53)
I spent, I’ve been at it decades. I got an interesting story though, I think to me, when I got out of law school, I didn’t have a job and I didn’t know where to go or what to do. And I was going through those demeaning interviews where you come out of it thinking, well, this is never gonna happen. And this particular, I call it divine intervention. I have been looking all over the place and nothing was working. so this particular Friday, I was turned down again.

So I was on the way to my car and it started raining. I only had one suit. had one suit and my suit started to get damp. So I ducked in an overhead and it turned out to be the chemical building. And a friend of mine, a weeks before, knew I was out and he said to me, hey, I have a friend of mine, Jim Jeans. And I think he may be looking for a lawyer, I don’t know. So he had given me this piece of paper with the address. So I ducked into the chemical building. What am gonna do? I reached in my pocket.

in my dampened suit and I looked at this building. Right building. Right building. So I went upstairs and introduced myself and he had remembered me from my escapades in the sports at Washington U. He had played anyway within three days I was hired. Wow. So that’s how it all started. It turned out is John and Eric, and Jim and his partner Charlie Gray were excellent trial lawyers.

and I had no idea and it turned out to be one of the greatest venturing experiences I could have. And as I say, I think it was delightfully inspiring. I wouldn’t even seen the building or looked at the note in my pocket. So that’s what happened.

John Simon (02:31)
So did you work with Charlie Gray? So I didn’t work with him, but I was at Gray and Ritter when he was, was like, he was still off council. He’d come in every once in a while, but didn’t talk to him or interact with him that much, but heard stories about him.

Don Schlapprizzi (02:34)
Yes.

Yeah, well, there are legend stories about Charlie, but he was great lawyer. He had the capacity to handle the book work and have a jury appeal as well. If he said the black was white or green was blue and Jersey, you got it. They believed it because he was the persuasive guy. But Jim was really the larger for me. And he went on to teach at the University of Missouri, Kansas City and wrote the trial advocacy book.

And so we were great friends even when we parted from Gray and Jeans. Matter of fact, his widow asked me to participate in U of G for him at his funeral. had gone on to Liberty and was a professor of trial practice there when he passed away. he was great. And through the years, he has great mentors. I had the opportunity to be…

in the Missouri Instructions Committee. in that committee was a fellow by the name of John Milholland. And John was probably one of the greatest legal minds I ever had. We became great friends and collaborators and some things. But he was the type of person you could learn from no matter how much experience you had. so he and then Orville Richardson, you probably remember Orville, the president of America Trial Wires, as it was called those days.

And he and I were on a committee appointed by the Missouri chair on one of the ad hoc committee on how to handle the upcoming statutory changes that were going to take place in those days, which is like the eighties, early eighties. So anyway, that great people to learn from and have opportunities to experience. that’s kind of.

John Simon (04:36)
So Don, how many cases have you tried or worked up or been involved in?

Don Schlapprizzi (04:41)
Well, we tried to do that for one of our anniversaries and cases that I started with the void I are completed was around 300. Wow. And then also on the other side, on the appellate court between the Supreme Court and Court of Appeals and Eighth Circuit, probably have close to 60 of those through the years. So a lot of work and always, as you know, it’s better to be a respondent up there.

John Simon (05:09)
I know that. know that. Yeah. Wow.

Erich Vieth (05:14)
Yeah, I think that I think the odds are are stunning as far as reversal versus affirmation. I think it’s like 80 %

Don Schlapprizzi (05:22)
I think you’re right.

Yeah, they don’t turn many around.

John Simon (05:26)
Well, that kind of makes sense because, you know, it’s not something usually that’s ruled on once at trial. You know, it’s you got the pretrial and then during trial, the objection and you preserve it afterwards. And so there’s a lot of opportunity for the trial court to get it right. You know, you’re right. I don’t want to be the one appealing. Not a good not a good.

Don Schlapprizzi (05:46)
Exactly.

Erich Vieth (05:48)
I’d like to explore your, your origin. What was it that brought you to law school as a child? Was there something or when did it hit?

Don Schlapprizzi (05:56)
No, I tell you, it actually was far less dramatic than that. I was at the University, Washington University, and it always played sports, baseball, football, basketball, those type of things. And I wasn’t sure what I wanted to do. And they gave you some aptitude tests that, and the one showed that I was, would be good in sales and some other, I guess, business areas. And I guess law was one of them, but.

They gave us a program in those days of six years, three years of undergraduate and three years of law school. You got two degrees, your JD plus your undergraduate degree. And I that’s a good deal. Now you get this. I said, decide I’m going to go to law school. So I walked over to what then January Hall, walked in and Miss Arndt was behind the counter and she said, what can I do for you? I said, I want to go to law school. Did you have a transcript? I said, well, yeah. And she says, well, I’ll take a look at that and classes will start on Tuesday.

Now there was no LSAT. This is the point I’m making. I walked in there at mid-year and started without the foggiest really idea of where I was going. And of course some of my grades reflected that until I kind of got the sense of the Socratic method. But I was still playing varsity baseball in that first year, which I wouldn’t recommend to others.

And anyway, the one subject that I later, of course, our careers was in the tort field. And that test was coming up in the end of the first semester there, a four hour deal on Saturday. So I walk in and then the professor Miller says, he’s called me slip, read. See, I don’t think whatever you say, sir. And he and he said, I understand. know, you have your four hour exam set. Yes. Yes. And I understand you have a double hitter with Wisconsin.

And I said, yes. He said, I’ll tell you what, I’ll let you go ahead and play that doubleheader and you just come in on Monday and you take the test. But you you must be on your honor and the things that we would be. he reminded me of that. So anyway, I took the test and passing was 65. And if you got less than 65, those, had to take the course over again.

I did that and I got my grade, it was a 66. I think he probably thought this was the dumbest guy ever, or one with the most honor. I got through it. And that turned out to be what I later found is love. And I really mean that. I found a love in the work we do. People who have been unfortunate.

John Simon (08:23)
Ha ha.

Your reputation is incredible. Not just as an attorney, as a skilled litigator, but just as a person with honesty, integrity. And I can tell you that I’ve been around here for not as long as you, but I haven’t met anybody that has said anything but wonderful things about you throughout my

Don Schlapprizzi (09:01)
That’s

so kind, thank you. We were at a program out in Santa Fe, it actually was kind of taught by this Arthur Brooks from Harvard University and how to find happiness in the second half of your life, that type of thing. the first thing we had to do in front of these people, it’s like 50, 60 people, to get up and say, if you really knew me, you’d want to know about so-and-so. And so you had to have kind of a…

gut wrenching thing. Some people said very revealing things. And I said something that’s haunting me. And those days we tried criminal cases and I actually tried a patent infringement case and there’s other contract things and defended people as well. And it was a criminal case I tried and I made a terrible mistake. And I said if you really want to know me, you’d want to know about this mistake I made. And I represented this fellow was a

accused of making bombs and it wasn’t quite as dramatic. Except they had grenades to be used for tossing at some different folks in the black community. So anyway, the point is that I decided because he had no criminal background to put him on the stand. And what I should have done was to arrest at the end of the government’s case. And because they had not really proved the technical violation, but not being.

The quote criminal lawyer, I probably should have been, I put him on and just by his fear of testifying, then he said he didn’t do it. That element proved that one of the final elements in the government’s case that he actually shored that up and he went away to prison for five years. the poor guy, I felt so bad and I still do. He was begging to get out and finally he did the time necessary and he got out.

and he died three months later. And so I never really got over that as one of the two or three episodes in my career that people knew about.

John Simon (11:06)
You know what? How long ago was that done? Thirty years ago. You know, it certainly makes me think more of you that you feel that way and you’re talking about it. And, you know, it’s we we obviously we in a profession where we make decisions every day, you know, and you just I’ve always wished I had a light on my desk with green or red. And if I say this is what I want to do, I look at the light and it’ll go green. Go forward versus red. And. ⁓

Don Schlapprizzi (11:08)
30 years.

John Simon (11:34)
You know, I’d have, I’d be up there for an hour with all the things that I messed up.

Don Schlapprizzi (11:39)
Well, there are enough, there are enough. But fortunately, the green light was more favorable than the red.

Erich Vieth (11:46)
That’s reminding

me of this constant theme that we face. ⁓ We’re on a deadline quite often, but we want to do the best we can. But you don’t have that luxury of going up on a mountain and sitting on a rock and contemplating. How do you deal with that through your career? You’ve had many times, I’m sure, where you had to make the decision when you’re maybe wishing you had more time.

Don Schlapprizzi (12:09)
And one other one that I will never get over is a brain damaged baby. And we were trying to case outstated in Phelps County. was finally a $2 million offered settlement. And I said, no. And I should have said, yes, we lost that case. And then baby never had the benefit of any. If it was a $2 million, he certainly would have had some.

definite benefits. So it was a decision that I think I was too involved in him and the behavior of the obstetrician nurses, how they’re just so indifferent they were. And I’m sure because of the economic situation of both the baby and his mother and how that community down there viewed this kind of a case, it was a

terrible call to say no and they go forward because there was a zero at the end of the case after a couple of weeks so I Because of the circumstances use occasion lose the case and you never we got don’t want to get over it But this one was another one that really has not made through these years. So

John Simon (13:19)
You know, you got to, you, I kind of look at it like the relief pitcher kind of thing. You know, you, you get, you get hit, you know, somebody hits one out of the park on you one day, you got to come back and, know, and I’ve, I’ve lost plenty. My, know, it’s terrible. You know, I hate, I hate losing more than anything. And the only way I can, the only way I found a deal with it is to get busy on the next, you know, get, get busy on the next one. You know, you can’t, you can’t spend too much time. do you think Eric?

Don Schlapprizzi (13:30)
That’s right.

Erich Vieth (13:47)
Yeah, wiping that slate clean though is sometimes really tough. Regret has got deep roots. When you feel that regret, it can haunt you. And it’s hard to shake that off sometimes.

Don Schlapprizzi (13:58)
I think through my career, know, when I first started, I first started actually practicing in 1960, then out of school about six months. And in those days, there was no such thing as strict liability. Then medical malpractice was virtually unknown. It wasn’t until 1965 that a woman had the right to claim of consortium in 1965. And I think that

later in the 60s. I’m trying to think when the charitable immunity went away, was a St. Mary’s case or something, but before that, you know, there was immunity and it was the wrongful death action was 25,000 and it went to 50 and eventually to 100 through those years and now of course it’s but it amazing how limited

the theories of responsibility. Keenan versus Dayton in 1969 established a strict liability rule. And then that wasn’t until the Gustafsson case, Gustafsson, a case that compared to Paul came along. And that was major, major because… ⁓

John Simon (15:11)
That’s Earth shatter. That’s major change.

Don Schlapprizzi (15:13)
Comparative negligence was an absolute defense. The zone of danger was the whole issue. then if the person who was injured, the plaintiff was oblivious and extended in the zone of danger, you were always, you know, that ⁓ distance, time rule, you were always figuring out how to, if you get that, he had the time, he had the distance. So it was an unusual time. It the only real effort or opportunity he had to get around comparative negligence. So the comparative fault was, actually turned out to be a lifeline.

because ⁓ you could have a complicity for your client and still make a recovery depending on the percentages.

John Simon (15:51)
So, so Don, you, you and I have something in common. We each have our children working with us. boy. And, you have a son and a daughter. Correct. That been with you, they’re working with you and my son and daughter work with me. Correct. And I’m just asking your advice. How do you make that work? How’s that working out for you?

Don Schlapprizzi (16:14)
Wonderfully. Well, they’re very, very proud of the two of them. And actually, you know, they’ve been at the time they were in law school when they had time, had been practicing and then working in undergrad with me. They’ve been at around 20 years, almost 20 years. And so they’re they had the benefit of that background. And also I could throw them into the mix as soon as I wanted to. And so it’s worked out beautifully. They they’ve drunk the Kool-Aid, as they say. And I never expected that they would.

But they want to do it and then doing it wonderfully well. But how is it working out? It couldn’t be better as far as I’m concerned. I think we need to get here since we have a couple of associates to leave that we have to get more staff because you can’t, as we know, you can’t do it all. But they’re great to be around. And I think also their being with me has

kept me active and energized. That’s wonderful. Maybe at the age I’ve reached you say, I know.

John Simon (17:18)
I

know the feeling. I know the feeling. you know, I’m 64 and you know, my son, John, joined me 10 years ago and my daughter seven years ago, eight years ago. And it does, it re-energizes me because then part of it is I’ve had the chance to work with and train some, you know, a lot of younger lawyers and I was really looking forward to it, you know, having my son and daughter join me. But like you said, I didn’t, you know, they made the decision. I didn’t at all try to.

you know, pull them in or anything, even though I’d love to have, you know, I love having them. I’ll just tell you one quick story was Johnny, my oldest, and your son, were they two years apart, three years apart, your son? So Johnny and Mary are two years apart and Johnny was here for about a month and I was talking to my wife Margie and she said, she said, how’s it going, you know, with John? And I said, you know,

Don Schlapprizzi (17:58)
on your

John Simon (18:13)
This is the first time in about 15 years, he’s actually cared about what I had to say because he’d come in my office with a list of questions and say, I’m doing this and what, do you do this and all of that. And I said, yeah, that’s kind of interesting. You know, I didn’t think he cared about anything I had to say, know, but there’s, there is nothing like it. I mean, it really is. I’ve gotten, as you have, you know, a chance to try cases with each of them and just, you know, there’s no nothing better for me better than anything I’ve ever done in a courtroom.

was sitting there watching my daughter, you know, cross-examine a witness or watching my son, you know, give a closing argument. And I’m sitting at the council table and that I’m telling you, there’s, there’s, nothing, there’s nothing better or better yet. had a case with Johnny and, and, and, and he’s sitting there. He’s just as nervous. We waiting for the jury and the buzzer rang and, we’d, they’d been out for three or four hours. He’s sitting at the table next to me and he’s scribbling. He’s all nervous and stuck.

And he said, he said, dad, you know, how do you, how do you get through this? And I said, you know what? Whatever happens, we’re going to pick up our stuff, walk out the door and go home. Nobody’s, nobody’s going to jail. And part of it too, I think is they really never really know what you do. You know, your kids and even if they were, you know, going through it themselves and making the decisions and there’s nothing like it.

Don Schlapprizzi (19:19)
What

Sure, sure.

Bye.

John Simon (19:42)
I mean, it’s been wonderful for me and I know it has been for you.

Don Schlapprizzi (19:47)
You have to get over the sense of rescue. rescue them, you have to kind of bite your tongue. And I love it because they have to cross the river under fire, as they say themselves. But it’s hard if you see something happening and you think somebody’s trying to take advantage of you want to jump in there. So you got to resist that. And like you said, ⁓ I think old people learn from young people. You could learn so much.

And they get great ideas and different things, different theories. It’s really, that is energizing.

John Simon (20:21)
Yeah, I know exactly what you’re talking about. There’ve been a couple instances with each of them where I thought somebody was being a little bit too mean to them or, and I did, I just kind of set back and, you know, let them, let them handle it, you know, let them handle it on their own. And, know, actually the reality is they’re better off handling it than I am. If their father intervenes, probably make the matters, you know, make the matter worse.

Don Schlapprizzi (20:40)
Yeah.

or should not solve anything. That’s something that you do have to overlook, the rescue issue. Not anymore, but so on.

John Simon (20:55)
One of the things, you know, George Fitzsimmons and I worked with George, he was my mentor and I worked with him side by side for 10 years when I was at the other firm, another firm. you know, George would tell, and this was before my time, but he’d tell stories where he would, you know, try two cases in a week, you know, with the…

Like in the old docket in the city where you’d show up with three files and you’d, you you settle one of them and try the other two. And he used to always brag that there was one week in particular that he tried three cases in three different courthouses. But in those days, you know, the, remember even that the five, you had a file that was two, you know, if it was six inches thick, that was a big, you know, that was a big file. Now, you know, with this online stuff and the document dumps and you know,

Don Schlapprizzi (21:44)
You

three men to the small boy to bring us in.

John Simon (21:46)
Yeah,

this whole thing about, everything’s going to be, you know, on the digitalized and with the technology, I think it’s made things way more complicated and way more difficult in my view. You know, who knows.

Don Schlapprizzi (21:59)
Well,

the technology is certainly here and here to stay. And I think that the COVID experience, 2020 and 2021, when it closed down everything, and they allowed the remote ability to practice from remote locations. then they add in the WebEx and Zoom is a different world. But I can see where utilization things like the Zoom.

can be less expensive. So you don’t have to travel to New York City or California.

John Simon (22:32)
For

three days for an hour deposition.

Don Schlapprizzi (22:34)
Right, right. but, I think it’s going to get, in my opinion, it’s going to get more and more streamlined. And I agree with you, doesn’t necessarily uncomplicated, it makes it the opposite. But I think that’s going to be about the AI, how that’s going to blossom or flourish or if it does, but there are going to be differences in the practice of law and utilization of lawyers. And concerned that

There’s going to be fewer and fewer jury trials for a multitude of reasons. First of all, the training of young lawyers is on the wane, I think. And because of the advertising, think fewer and fewer lawyers are going to get into the trial work because it’s a labor of love. It’s hard work and very time intensive. And with the advent of arbitrations and…

Every case in the world is a mediation case, it seems like to me. It never happened that way before. But you were right, what you said earlier in your career, you go to the court, try two cases a week, if I was an inch thick, that’s an exaggeration I guess, but it was far simpler. And in those days we could try two cases a week ⁓ in different venues. I was in trial in the city with co-counsel and we were in the third day.

And I got a call from the court in Jefferson County. It said you’re going to go to trial tomorrow. I said, well, I’m still in this case. what turned out, I had to leave the one in the city with Coles-Sarles and go down there for two days and try the wrongful death case of it. So it does happen and did happen. And I guess that was expedient. I don’t know. But today there’s so many fewer cases.

John Simon (24:31)
Yeah. And I think the one of the things too is there, there, aren’t, many small ones, you know, because the media, the arbitration or media mediation, mostly, I think it’s a, it’s a big disadvantage with this, all this remote stuff, you know, working remotely, the doing motions, for instance, one, a zoom motion where, know, if you had to walk down to the courthouse, you would meet 15 or 10 other attorneys, you’d talk to them, you’d get to know them, you get to know a little bit about their families.

And it’s not even just that. remember days when I was working for George Fitzsimmons and I would tag along with him and we’d head up to the court to argue motions. And I got to talk with him on the way up there about what the motions are, who the judge was, the disposition of the judge, the opposing counsel. I learned so much. then I’d hear when you’re up there, too, you know, you hear 10 other arguments. And then I’d talk to George on the way back about why he argued it the way he did.

90 % of what I learned, I didn’t learn by watching our argument, you know, and that’s, know, nowadays you get on a zoom and you’re muted and then all of a sudden you argue yours for three or four minutes and then you, you know, you’re off. You didn’t meet anybody. didn’t talk to anybody. It’s just like, there’s so much, there’s so much missing, you know, because we don’t realize how much you learn just by watching other people, you know, watching how somebody talks to another attorney.

you know, watching, you how they handle themselves with the court or, with the judge. And, know, there’s, it’s, it is more efficient. There’s no question. You don’t have to, you know, do the driving and that, but I think, I think it’s, you know, I’m concerned that it’s not, you know, it’s in balance. think they’re losing more than they’re gaining by not, you know, being there in person.

Erich Vieth (26:21)
I just saw that I’ve been in the equity division or the city a few times in the last month. And it’s a periodic docket where they’ll fill the courtroom with attorneys. And so you do get to say hi to people. You meet people, you get to watch people argue cases, argue motions anyway. And it’s like the good old days in division one.

John Simon (26:41)
You

know, for instance, one of the there was a case a couple of years ago that I tried in mid Illinois, mid state. And the attorney was from Chicago and we had a dozen or so zoom calls, motions with the court. And the first time I ever met that lawyer in person was the first day of trial. Right. And the case had been going on for two years. I didn’t know anything about his family or, know, and and it was always the screens on in the conference room. We argue the motion and then we’re

You know, we’re emails to each other. You don’t even talk on the phone, you know, it’s with all the emails. I don’t know. just, maybe it’s less efficient, but I think, you know, quality of practice, quality of life kind of stuff. It’s the interaction. It’s socializing and you that’s, like you said, this is so hard and you know, the work, the hours, you know, to do it and do it right. And I think it makes it hard. It makes it a lot easier when you have a little bit more.

know, social contact and you get to know.

Erich Vieth (27:42)
There’s something magic that happens when you shake someone’s hand and look them in the eye. It makes me think that even in a perfunctory motion, like a scheduling conference of some sort, and the judge lives at some inconvenient place, maybe you have to drive an hour or two, it might be worth your while to go out there and meet the judge.

Don Schlapprizzi (28:02)
And

the civility of among lawyers has been darkened. ⁓ And I think what you folks, you guys were talking about, it touches on civility. If you have an opportunity to mingle and ⁓ exchange a little bit more about your opponent and maybe the class or the judge, it’s so much easier to get along. You know, there’s wars and there’s battles.

Chob may be the war of all these motions, that’s battles, and you have to get all bent out of shape over them. So I do think you’re right that the camaraderie, if you will, in the law practice goes a long way for the civility.

Erich Vieth (28:45)
I don’t, I don’t mean to disparage East coast attorneys, but I’ve heard more than occasionally someone from Philadelphia or the last week in Washington, DC attorneys come here and we have depositions. They’re, you know, serious matters. And at the end they’ll come up and say, I really enjoyed the cordiality and the, know, this is, this is maybe different than what I’m used to. And I’ve, I’ve heard that, you know,

every so often from someone. You for us, this is just the way it is. This is normal, what we see normally in our town, but apparently in some other places it’s not that way. Well, that’s been another episode of The Jury Is Out. I’m Erich Vieth.

John Simon (29:27)
I’m John Simon, we’ll see you next time.

Announcer (29:32)
The jury is out is brought to you by the Simon Law Firm. At the Simon Law Firm PC, we believe in the power of pooling resources in order to create powerful results. We often lend our trial skills and experience to lawyers around the country to achieve better results for their clients. Our attorneys welcome the opportunity to work with you on your case, offering vast resources, seasoned litigators, and a sterling reputation. You can contact us at 314-241-2929.

And if you enjoyed the podcast, feel free to share your thoughts with John, Tim, and Erich at comments at thejuryisout.law and subscribe today because the best lawyers never stop learning.

Continue Reading