The Sex Therapist Who Upended the Law

 

And incidentally, she has just returned home from completing a marathon — in France.

 

“When I was a little girl, I used to be afraid that I would grow up and be bored,” Blue says. Clearly, boredom has not been a problem for the multifaceted attorney who The National Law Journal named one of the top 50 women litigators in the United States in 2002. Surprisingly, she also seems to have avoided the high-strung, stressed-out personality that often accompanies such a busy life. In fact, she’s exceptionally calm. Blue speaks slowly and deliberately, choosing her words with care and delivering them with a soft earnestness.

 

Blue grew up in Atlanta, the daughter of a surgeon and a homemaker, with three brothers. Her oldest brother, a psychologist, encouraged Blue to explore his chosen profession. She followed his suggestion to the fullest, earning her two master’s degrees from the University of Virginia and a Ph.D. in counseling and psychology from North Texas State University. Along the way, she also trained in sex therapy with Masters and Johnson, thinking that she would ultimately specialize in that area. “The best advice I got during graduate school was to get a specialty,” she recalls.

 

So how did a doctor of psychology with a successful family therapy practice get into law? The answer might be surprising, and a bit unsettling for some attorneys. In the late ’70s, when Blue was heading up a drug abuse hospital for teenagers in Houston, she noticed that a huge proportion of her patients shared a common characteristic — they were children of trial attorneys. She noticed a similar trend in her work as a sex therapist. “In the late ’70s, the largest number of patients with sexual problems were attorneys,” she explains.

 

When she recalls her fascination with this trend, Blue’s approach is frank and clinical. “Here were these people who were great communicators when in front of a jury but then at home they were such poor communicators,” she says. Blue attributes the incongruity to a lack of ability in many lawyers to discuss their feelings. “Attorneys are great actors,” she explains. “And if you go to court and you’re depressed or down, you still have to be on.” But that ability, Blue says, doesn’t always translate well into a family environment, where being open about one’s emotions is essential.

 

While Blue was seeing a lot of attorneys in her practice, it wasn’t until she received an invitation from a patient to assist in a jury selection that she experienced a courtroom firsthand. “The experience was horrible,” she recalls. “The other side stood up and said to the jury panel, ‘Does anybody here know Dr. Blue? She’s come to analyze you.” At that time, jury psychologists didn’t exist, and Blue says, “I felt like he had thrown the case just by mentioning me.”

 

Nevertheless, Blue found the courtroom fascinating. “It was all very exciting and adversarial,” she recalls, “and there was so much psychology involved from the time the lawyer walks into the courtroom until the time the case is over.” Inspired, she decided to go to law school to “learn the rules” and then continue her work as a psychologist with a specialty in trial psychology and jury selection.

 

Speaking about her law school experience, Blue says, “I’m not as smart as other lawyers. I’m motivated and focused, but if you look at my grades from law school, they are very poor.” She’s serious, stating matter-of-factly what she perceives to be her weakness. “I’m just not that book smart and not a good test taker,” she says.

 

She is also very dyslexic. “When spelling,” she explains, “if I write ‘trail,’ I see ‘trial.’” And for a trial attorney, that could pose some challenges. Extremely committed, Blue asserts that “even if it takes me 100 more hours to get as good a grade as somebody else, I’ll do it.”

 

What Blue does possess, she explains, is the ability to think beyond the usual boundaries. “In law school, I was able to creatively take what I had learned as a psychologist and use it in a law setting.” Developing an attentive listening expertise was perhaps the most important skill she learned. “When I trained as a psychologist, I was required to record on cassette tape thousands of hours of my work with patients. I would then sit down with a professor and listen to every session. If it seemed like I had missed what the patient was saying, the professor would say, ‘Lisa, you weren’t listening’ and we’d go back and review it.” All that practice, Blue says, gave her a huge advantage as an attorney. “Especially in something like voir dire, the most important thing is the ability to listen well.”

 

Blue also found that a psychological principle called “psychodrama” — seeing a situation from another person’s eyes — translated successfully into the work of a trial attorney. “Lawyers didn’t understand that when you walk into a courtroom and you present your case, the jury is not just looking at the facts of the case.” From Blue’s first time in a courtroom, she saw the psychological complexity in how the jury views the attorney. “The jury is looking at how they dress, how they treat the client, how they treat their employees, how they interact with the court personnel.” In lectures, articles and classes, Blue has introduced this concept to lawyers by asking them to pretend to be a juror. “When an attorney can look at things from the perspective of the juror, it changes how they do things in the courtroom.”

 

No matter how an attorney handles the courtroom, Blue says, “One thing’s for sure: A jury can smell a fake from a mile away.” Conversely, they know the real thing when they see it. To illustrate, Blue recalls a voir dire experience she had while handling a case in Fort Worth. At the time, she was already an experienced trial attorney confident in her ability to get jurors to open up. “During voir dire, I felt I had done a good job with the panel and they were talking to me and we were connecting. Then the other lawyer got up.” Blue explains that this lawyer had only been in practice for a year, a true novice. “He was so nervous that he stuttered and kept getting his terms mixed up — plaintiff and defendant.” But when he went over to the jury panel, Blue recalls, “he said to them, ‘I’m so nervous that I feel like I want to throw up.’” Even though he continued to stutter and confuse his words, when he sat down, the entire jury applauded him. Blue believes this to be a fantastic example of how “if you’re just yourself, you don’t always have to be magic or quick or clever. Everyone loved that attorney and wanted him to win.”

 

While Blue has become an expert in the psychology of a trial, she has also been successful at putting those principles into practice. “I never expected to become a practicing attorney when I entered law school,” she recalls, “but I left with a passion for trying cases.” As an assistant district attorney in Dallas under Henry Wade (of Roe v. Wade fame), Blue prosecuted more than 125 cases to verdict, relishing the opportunity to go to court and be in front of a jury almost every day. When she moved over to Baron and Budd in 1985 to try her hand at civil cases, she sought to be in the courtroom as much as possible.

 

From 1986 to 2004, Blue estimates that she tried eight to 12 toxic tort cases a year, and, according to Baron and Budd, won roughly 90 percent of those. “Unfortunately, I mainly remember the ones that I lost,” Blue says. She grows more serious when she says that her time as a trial attorney was by far the most challenging out of all her professional endeavors. “I think the hardest thing I’ll ever do is be first chair in a complex toxic tort case.”

 

Her grueling schedule produced many impressive wins, the largest of which was a $55.5 million verdict in the 2001 asbestos case Hernandez v. Kelly Moore Paints. For Blue, that win was “like a religious experience,” and not because of the big number. She relished the experience of working with the Latino community. “The jury deliberated in Spanish, the judge was Hispanic, the client spoke Spanish,” she says. At the end of that case, she was determined to learn Spanish; she has been taking classes six days a week ever since.

 

Now that she has a firm handle on the language, Blue is focused on dealing with cases that involve the Hispanic population. It’s one of the few criteria that she uses to decide whether she’ll take a case. After so many years of nonstop trials, she has given herself the chance to “be more picky.”

 

Recently, Blue has taken more of a background role — coaching other lawyers, and doing work as second chair. She says, “At this point I don’t want to be Lance Armstrong [whom she represented in a $5 million contract case]. I want to be his coach.”

 

Yet even in a secondary role, Blue’s work makes headlines. In the nation’s first Vioxx-related personal injury case against pharmaceutical giant Merck, the plaintiff ’s attorney, Mark Lanier, cites Blue’s jury work as “invaluable” to the $253.5 million verdict. Blue chose to help Lanier not only because of her great respect for the Houston attorney, but because the case was the first of its kind. “Its outcome had the potential to affect many lives,” she explains.

 

For Blue, the Vioxx verdict was particularly remarkable considering the makeup of the Angleton, Texas, jury. “When the jury was in the box, I was very scared. It was one of the most unfavorable plaintiff’s juries I’ve ever seen,” she says. A third of the jury was younger than 24, which, according to Blue, means trouble for the plaintiff. “As a jury psychologist, I’ve found that members of the younger generation don’t have the life experiences to be able to judge favorably for the plaintiff. They haven’t known hardships like divorce, death in the family and losing a job. Their attitude seems to be ‘stuff happens; get over it.’” Worse, the Vioxx case involved the death of a 59-year-old man. “To me, as a 53-year-old, that guy’s young,” Blue says. “But to a juror under 24, that’s almost a grandfather’s age.”

 

Blue and the rest of Lanier’s team had the case prepared and ready to go, but once the jury was in the box, they executed an overnight makeover. With detailed information from a 25-page jury questionnaire Blue helped develop, the team was able to customize their approach to fit the jurors. “I knew who these people were, I knew who liked Oprah, I knew that most of the jury watched CSI,” Blue explains. Lanier’s opening statement, presented in PowerPoint with a series of images and captions, began with a slide that said: ‘Members of the jury, this is like CSI: Angleton.’ It engaged them immediately,” Blue says.

 

The Lanier team used a similar tactic in the second Vioxx case, which was tried in Atlantic City, just 100 miles away from Merck’s headquarters. The popular show among that jury, Blue says, was Desperate Housewives. “We based the case around the structure of the program. We even used an image that featured the four main characters and then their faces turned into four Merck CEOs. The caption was ‘Desperate Executives.’”

 

The method had a huge effect on the jurors. When Blue interviewed members of the first Vioxx jury six months after the trial, she says, “I was astonished by how much they remembered. In my career, I’ve interviewed more than 100 juries after trial and their memories are just not that good, especially from long cases.” Psychologically speaking, the power of Lanier’s presentation makes sense. “When a juror hears something and sees it as well, their ability to remember goes up 90 percent,” Blue says.

 

The presentations featured more than 200 slides, each with a picture accompanied by just a few words. “It was simple and powerful,” Blue recalls. It also managed to tell a story, which Blue says is another essential way to ensure that people retain the information from a trial. “Really great trial attorneys give little details here and there that work to create a story. People remember that, especially if the details are sentimental.”

 

For Blue, a perfect example of the power of a simple anecdote came from the first Vioxx case. It was about the plaintiff ’s husband, whose alleged wrongful death was at the center of the case. He had a tradition of buying 10 birthday cards for his wife and putting them in different spots around the house. “The warm and fuzzy stuff makes a much stronger impression than some complex medical fact,” Blue says.

 

The Vioxx cases are two out of a small number of cases that Blue has been involved with over the past few years. But what she calls a “sabbatical” does not seem to involve a lot of down time. Actively seeking ways to employ her Spanish skills, she has volunteered as a translator at a local divorce clinic, and has even toyed with the idea of attempting some immigration work. After Katrina, she spent several weeks doing therapy with trauma patients. She’ll soon be volunteering her psychology services to amputees returning from Iraq. She’s also publishing a book with her brother, Rick Blue, a radio psychologist in Atlanta, called Dr. Blue’s 50 Tips to Save Your Relationship. And when she’s not working on an occasional case, she wakes up five days a week at 4 a.m. to practice piano, run and study Spanish, French and Italian.

 

“I never wanted to be a success,” she says. “I’m sitting here in this great house, but I could just as easily be happy in a tiny apartment with some great books.” Blue is clear on her priorities.

 

“I just want to keep learning.”