Published in 2022 Mid-South Super Lawyers magazine
By Nancy Henderson on November 28, 2022
It was a two-pronged David-and-Goliath battle. Donald Capparella was defending a plastics company against a $20 million-plus lawsuit by Exxon Mobil Corp., which claimed his client had reported fake testing practices when Exxon bought the company. His client, meanwhile, was countersuing because Exxon refused to pay the balance it owed on the purchase. When the trial started in July 2003, it had produced 50,000 documents, and it was just Capparella, John Branham and Kelly Smits against a dozen or more Exxon attorneys.
But what was gnawing most at Capparella were the dozens of depositions he had to present to the jury. To do it the usual way—with the deposed witnesses speaking on videotape, or with a lawyer reading the questions and a paralegal reading the answers—would be, he felt, “bad television.”
Then he had an epiphany. What if he hired actors from the Nashville Shakespeare Festival to read the depositions? “They’re attractive people with good voices,” Capparella, now a trial and appellate attorney with Dodson Parker Behm & Capparella in Nashville, remembers thinking. “They can follow direction. They can take a drink of water at the right time, or they can pause.”
The strategy worked so well, in fact, Exxon stole it. “They started using my actors for the other half of the deposition,” Capparella says. At the end of the four-week trial, Capparella and Branham won about $2 million for the client. The number rose on appeal. They also defeated the Exxon suit.
That was the first time Capparella’s legal career fully intersected with his beloved Shakespeare Festival, which he co-founded in 1988.
A small-framed man with a crop of curly hair and a Puck-like grin that makes him appear younger than his 63 years, Capparella has handled more than 150 trials, mainly in tort and personal injury law, and more than 400 appeals in state and federal courts. He has represented clients in landmark cases, including McIntyre v. Balentine, which replaced Tennessee’s contributory negligence rule with comparative fault, and the first case in which Amazon could be held responsible for a third-party product sold on its platform—a hoverboard that exploded inside a house.
In the courtroom, he is known for his intense focus. “He is always ready to anticipate the other side’s move, ready to bound out of his seat to make a timely objection,” says Tyler Yarbro, the firm’s managing partner. “This also means he is great at dealing with witnesses who say unexpected things.”
Once, when the two were trying a premises liability case together, an important witness began giving testimony that contradicted what she’d revealed during their investigation. Capparella managed to quickly steer her back on track. “If he had not been able to accomplish this feat,” Yarbro says, “our case would have fallen apart.” Instead, a week into the trial, they received a favorable settlement.
Because of his slight build and tempered voice, Capparella is often underestimated, both in the courtroom and on the tennis court, where he has long excelled. (He won the 1991 Nashville Closed Tournament.) “I recall a lawyer who played tennis with him saying that he did not expect much from Donald on the tennis court just based on Donald’s looks and friendly demeanor,” Yarbro says. “Then Donald creamed him.”
Growing up in North Carolina, Capparella’s family was so poor they couldn’t afford to fix their car. His mom, a politically active tennis player and pianist, left her husband when Capparella was 9 and raised four children on a secretary’s salary. When her car broke down, Capparella says, “She just left it by the roadside and rode a bike for the next 45 years.”
The play became the thing for Capparella when he was a teenager and was cast as Matt in a summer production of the musical The Fantasticks, which required seven solos. Around the same time, he performed as Lysander in A Midsummer Night’s Dream, and the Bard’s words hooked him. Shakespeare, he says, is “bigger than life. The characters have high stakes. Even the comedies are life and death.”
Two years into his theater major at UNC Chapel Hill, he transferred to Greensboro, which offered a better theater program. He was able to pay for college with performance gigs, but he wasn’t seeing a future as a professional actor. So on a whim he applied to UNC School of Law. Either profession, he says, “seemed kind of like going to the moon for me anyway, compared to my poor upbringing.”
He continued to perform, playing Jesus in Godspell, singing tenor with the Duke Chapel Choir, and working as a singing waiter in Blowing Rock, North Carolina. (He made enough in tips to pay for the next year of law school.) Meanwhile, law school wasn’t working. He loathed the technical aspects. “I liked the legal courses that involved stories,” he remembers.
Then he auditioned for two parts with the Nashville Children’s Theatre and landed both: Huck in Huckleberry Finn and Otter in The Wind in the Willows. “I was 24 years old. I looked about 12. And I thought, ‘I’ll never get a chance to play Huck Finn again.’” He missed the last semester of law school to complete the six-month contract.
After he got his J.D. in 1984, he moved to Nashville. Of his two careers, acting was the one that continued to pay the bills. His agent drummed up TV commercials for him while no law firm would hire him. At one point, he wallpapered his room with the 67 rejection letters he received from area firms.
A breakthrough came when he clerked at Manier, Herod, Hollabaugh & Smith, then came on board full time, handling everything from wills to insurance defense to criminal trials. He gravitated toward litigation. It was both familiar and not—a new kind of stage. “Every play I had ever done, we had a script,” he says. “We had props. We knew everything that was going to happen before it happened. In a trial, it’s a complete improvisation.”
Another epiphany occurred when Capparella volunteered to help a colleague with an appeal. He loved the writing and soon became the “appeal guy” at the firm. He just didn’t like defending insurance claims, and when he had the chance to play in The Tempest and The Taming of the Shrew at the 1989 Orlando Shakespeare Festival, he jumped.
“I left a very good law job at Manier, Herod,” he says, “to go to Orlando to play a fool.”
A Shakespearean fool, of course, is rarely a fool. “Fools speak truth to power, which is what lawyers do, particularly if you’re on the side against the Amazons and Exxons of the world,” he says. “The fools are the only ones who can say things to the king without getting their head chopped off.”
In The Tempest Capparella played Ferdinand, and the play includes one of his favorite lines. A dying Prospero, instead of punishing the people who have betrayed him, declares, “The rarer action is in virtue than in vengeance.”
“I just love that idea that here’s a man who’s got all these enemies—you can destroy them and instead you forgive them,” Capparella says. “If you can get an opponent in a lawsuit, after the lawsuit is over, to refer you a case, then you know you’re doing the right stuff. And that happens to me a lot. That means I was a worthy opponent.”
During his time in Orlando, where he wrote appellate briefs for other attorneys part-time, he also took a couple of days off to argue his first case before the Tennessee Supreme Court in Jackson. His client, a company’s minority partner, had been squeezed out of his share of the business. Capparella got a 5-0 reversal, which reinstated his client’s interest. “That really excited me to change the law, to make a difference,” he says. “Pretty much from then on, I really, really wanted to do as much appellate work as I could.”
So he returned to Nashville and Manier, Herod. A few years later, he joined Branham & Day, this time handling tort litigation and big commercial cases on the plaintiff side. In 2000 he went solo.
Over the years, he honed his courtroom style, which, broken down, is like Polonius’ advice to a school-bound Laertes in Hamlet: To thine own self be true. “I learned early on that while there are lawyers who have amazing presence and voices like James Earl Jones, I’m 5-foot-9. I’m not particularly big. I don’t have a particularly powerful voice. As a matter of fact, I have a very high singing voice, so when I add energy to my voice it goes up. So I learned to tell a story in a more quiet, intellectual, thoughtful way, and deflect the attention from me onto either a key witness or the story. I became more of a director in the trials I did and tried not to put the emphasis on me as an actor.”
That doesn’t mean he wasn’t still acting.
The year before the Orlando excursion, Capparella and some fellow thespians performed a free, modern version of As You Like It in Nashville’s Centennial Park. With a budget under $1,000, they used no lights and no sound effects, and the friends wore their own clothes. They drew rave reviews. A second play in 1989 did the same.
The Nashville Shakespeare Festival has now grown into one of the region’s leading professional theaters, with an annual budget of nearly $1 million and 24 summer performances over the course of six weeks. More than 350,000 people have attended the festival since its inception, while its educational outreach program offers classroom workshops and other events to students from middle school to college.
Capparella is still active in the organization, serving on the board, fundraising, and offering legal advice.
“His passion for Shakespeare is fueled by his dedication to contributing to an egalitarian society, which is why after 35 years, Summer Shakespeare is still free and welcoming to all,” says Denice Hicks, the nonprofit’s executive artistic director. “Donald is among the most intelligent people I’ve ever known. His retention of information and ability to see all sides to most situations is astounding.”
He also has a talent, Hicks adds, for interacting with all types of people, from homeless festivalgoers to affluent patrons. “We once had a starstruck squirrel who insisted on being in every scene in Much Ado About Nothing,” she remembers. “He handles crises calmly, which makes him a fabulous leader.”
And over the last decade, Capparella has brought together his love of law and Shakespeare with a seminar, “Much Ado About Ethics,” which combines Shakespeare and modern legal ethical dilemmas. Nashville Shakespeare Festival actors help out, and the proceeds benefit the festival. Lawyers and potential clients across the state call him “The Shakespeare Guy.”
His current firm, Dodson Parker, which he joined in 2004, is housed in historic Germantown, in a brick replica of the Dutch Revival homes that punctuate the neighborhood. The walls of the lobby are lined with photos of famous Nashvillians; the walls of his office with Shakespeare posters.
“The best opportunity that happened to me was when I left my own firm and joined this firm,” says Capparella, who is now a co-owner. “They embraced me in my full self without any criticism or any suggestion that because I was passionate about the Shakespeare Festival I wasn’t really passionate about being a lawyer. They allowed me to be passionate about everything, openly, without any judgment.”
In 2013, in one of his most notable trials, he secured a $3.2 million verdict for a widow against a negligent life insurance company, two brokers and a financial planning firm that denied her $1 million claim after her husband was killed in a car wreck. Greatly reduced on appeal, the Tennessee Supreme Court ruled 3-2 to reinstate most of the original verdict with interest. “More importantly, and the thing that motivates me as a lawyer, I changed the law and made the insurance broker responsible,” he says.
As with all his cases, Capparella is quick to point out that “no one does this alone,” deferring credit to fellow attorneys Cynthia Chappell, Amy Farrar and Candi Henry.
“Theater is just a form of storytelling,” he says. “And law is competitive storytelling between one side and the other, with the judge as referee. While you’re trying to tell your story, using witnesses, exhibits, and the rules of evidence, the other side is trying to stop you from telling your story—to tell theirs instead.”
Capparella v. Dick the Butcher
“The first thing we do, let’s kill all the lawyers!”
Capparella shouts that famous Shakespearean line while hawking T-shirts from the Centennial Park stage to raise money for the Nashville Shakespeare Festival.
It’s been interpreted many ways—generally as criticism of the profession. But since it’s spoken by Dick the Butcher, a wannabe dictator in Henry VI, Part 2, Capparella leans the other way. “Lawyers are the first line of defense on individual rights,” he says. “So it’s actually Shakespeare’s greatest compliment to lawyers. To stop a dictator, you need to have lawyers who will represent people and defend individual rights.”
That’s why, when festivalgoers agree with him, shouting back “Yeah, kill all the lawyers!” it becomes a teaching moment. “Ah, but if you’re in trouble, you’re wrongly accused of something or you get in a car accident, who do you call?” Capparella responds. “You call a lawyer. Because we need lawyers for our society to be free and functioning.”
Second place award in the freelance writing category of the Golden Press Card awards presented by the Eastern Tennessee Society of Professional Journalists.
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