C. Neal Pope’s Door-to-Door Advocacy

The class action attorney from Pope, McGlamry, Kilpatrick, Morrison & Norwood on the best mentoring in the world, the greatest tool in cross-examination and what juries can’t forgive

Published in 2011 Georgia Super Lawyers — March 2011

I understand you’re in court tomorrow.

Yes, I’ve got a hearing over in federal court in Raleigh.

 

Anything you can talk about?

Sure. It’s a class action case against State Farm Insurance Co. We’ve settled the case. It’s on behalf of about 750,000 North Carolinians, and it involves their premium overcharge involving the fire protection of their homeowners policy. It arises out of the requirement that the policies reflect proximities to fire hydrants and fire stations; and over time, as fire hydrants and fire stations have come into new areas, there were people who did not have that reflected in their policies. So we were able to bring an action. Now some yet-to-be-determined but significant number of North Carolinians will get refunds for overpayments they have made on the fire protection portion of their homeowners policies, and the remaining North Carolinians, who are insured by State Farm, which of course is the largest insurer in the state, will have their current policy and premium payment corrected.

 

Most of us are familiar, through literature or film, with the single client coming into the lawyer’s office. But how does one get 750,000 clients?

The way it works now, instead of a client walking in and saying to Atticus Finch, “I want you to represent me and I don’t have any money but I can give you some chickens,” well, [in this case], we were associated with a law firm in North Carolina who had a client, and who came to us by reputation.

 

The North Carolina law firm had a client? How do you get to 750,000?

Since about 1966, about the time I started practicing law, we’ve had Federal Rule 23 of the Federal Rules of Civil Procedure, which provides for class actions. You can bring an action on behalf of a whole class of people by one client. In this case, there were four such people. And we brought the class on behalf of anyone else who was similarly situated. We didn’t know how many there would be at the time we filed the suit, but through discovery we learned that there were about, as I say, 750,000 of them.

 

How did you get this particular settlement?

As in most lawsuits—because 99 percent of them settle, otherwise our whole system would collapse—at some point one side will approach the other side and say, “Can’t we see if we can’t resolve this?” When you start that process, both sides know that they’ve got certain arrows in their quiver, and they are capable of causing extreme grief to the other side, so generally you sit down and you work out a compromise. It comes at different times. It may be at the eve of trial. It may be during trial. I’ve done it when the jury was out. Neither side feels perfectly confident in most cases I’ve been in, and I’ve tried 200 of them to verdict.

 

In all of your cases, not just those 200 to verdict, are there any that stick out as particularly satisfying?

Oh, that’s a softball. Floating across the plate.

 

[Laughs] And we want you to hit it out of the park.

I’ve had many satisfying cases. I remember one case over in a Veterans Administration hospital. This was 25 years ago. My client went in for a routine [consultation]. He may have had an ulcer or gastric reflux, so they were going to put an endoscopy tube down his throat. And when they put it down there—you know, you have a gag reflex that makes it uncomfortable and you have a tendency to throw it up? They used a needle with some deadening medicine on it and stuck it in the back of his throat to deaden the ninth nerve, much the way a dentist would do in your gum. It’s called the DeMeester procedure. Dr. DeMeester was a doctor at the University of Chicago medical school and had perfected this. But instead of deadening the nerve, they pushed it through the back of the tissue into the spinal cord and introduced bacteria into the spinal cord, which resulted in a horrible course of illness. Ultimately, when he recovered, he was quadriplegic.

The defendants testified that they had conducted the DeMeester procedure correctly. Now there are two approaches to this. The first would be to have an expert, a medical doctor, testify that the procedure they used was not the DeMeester procedure, or it was an attempt to use the DeMeester procedure that was done below the standard of care. The other was to bring in Dr. DeMeester himself, who could testify that what they testified to, in regard to using his procedure, was in fact incorrect. The second method is the one that I employed.

I was able to bring a suit against the United States in connection with the Federal Court Claims Act, and a federal judge awarded my client a very large sum of money to take care of him the rest of his life. Not the kind of thing that makes headlines, not the kind of thing, you know, you could build a career on. But certainly a satisfactory result. And I could give you many others, I’ve been doing this 45 years.

 

What drew you to the law?

Back in the early ’50s, we had a lot of time in the summertime. We don’t now. We didn’t have television in those days, there wasn’t a lot to do, polio kept people inside a lot in the summer, mothers were afraid to let their kids get out and around people. Those are the things you read about, but I lived them.

So I read a lot. I read things like the autobiography of Clarence Darrow, which probably had more influence on me than any book I’ve ever read. I read other works that made me appreciate the need for advocacy—and when you talk about law I talk about advocacy, because that’s really broader than the term “lawyer.” Because of that, I came along and never blinked, all through junior high school, high school, college, the Marine Corps. I came out of the Marine Corps, went straight to law school, spent three years in law school, graduated, went straight into the practice of law and haven’t looked back since. That’s kinda my whole history.

 

When you began practicing in 1966, how did it differ from what you expected?

I remember about 10 years into the practice of law I had gained some local attention, doing what I do, and at a cocktail party, a doctor’s wife came to me and she said, “Mr. Pope, I have a son who thinks he might want to go to law school and he’s a freshman in college. What should he be doing to prepare himself for practicing law?” And I said, “That’s a simple thing. Get him a job going door-to-door selling vacuum cleaners.” She had this shocked look on her face. And I said, “Well, if he wants to be a trial lawyer, the best training he can get is knocking on a door and meeting somebody who doesn’t want to talk with him; and if he can get in that door, demonstrate that vacuum cleaner, get a signature on the contract and get out with a down payment, he can be a good trial lawyer.”

I may have veered from the question but you asked me if it was as I expected it to be. I didn’t have any money coming up so I had to work, and a lot of that work is in sales, because you can always get a job selling, even in a recession. And I found that when you’re before a jury, or before a court, you’re really selling; and selling has been as important to the art of advocacy that I’ve done, and that I’ve seen other lawyers do, as anything. So I was not terribly, terribly surprised.

I was surprised at how little of the practicality of the courtroom is actually taught in law school. So there’s an awful lot of learning that has to be done on how to go in, and try a case, and come out with a successful result. And by “successful result” I don’t always mean “winning.” Your duty to the client is not to win—although that’s what all clients want, and most all advocates want—but to espouse their position in the best light that you can possibly put them in.

 

Did you have one of those summer jobs as a vacuum cleaner salesman?

I sold vacuum cleaners door-to-door. I sold White sewing machines. I sold Fuller brushes. I sold ladies’ shoes. I sold men’s shoes. I sold everything that I could get my hands on to make a buck to be able to go to college and then law school, then I kept on selling after I got into the practice of law.

 

What did your father do?

My father was a carpenter. My mother worked at the telephone company as an employee—until she died, actually, she was with them all her life. I came from a very blue-collar family.

 

Did you have a mentor?

I had a great one: Mr. Francis Hare Sr. in Birmingham. In fact, Melvin Belli in his book listed 10 of the people who had contributed the most to the American civil justice system from the plaintiff side, and Mr. Hare was one of the 10 he mentioned. During his lifetime I had the privilege of working with him, and under his supervision, and he taught me a great deal.

I’ll have to tell you, back in the ’60s when I started practicing law, lawyers, at least in our local area, did pretty good mentoring younger lawyers by beating their brains out in the courtroom. Which is the best mentoring in the world.

 

So why class action?

Well, I filed my first class action in ’66, ’67. I’ve been doing it all along. I was doing criminal work largely because I was getting appointed. A lot. A new lawyer in town generally doesn’t have people come flocking to him with a really good civil case, so I had to take one when I could get it, do the best I could and build my reputation. Within 10 years my reputation was such that I was doing almost exclusively civil work.

And then I got a $25 million verdict in 1983. It was the largest verdict for a wrongful death case, I guess, in the country at the time. It got a lot of press, including front page in the new USA Today newspaper. Then I got a $5 million verdict and a $6 million verdict right after that in a pharmaceutical products liability death case, and so those things kind of made my career really take off.

 

What are some of the biggest changes you’ve seen in your career?

That’s a question that involves a vertical and a horizontal analysis. Vertical in the sense that I can’t tell you what the practice of law was in 1966 at the level I am experiencing now. But from my view of the way things were in 1966, I would say that the practice of law was far less ... how do I put this? ... cutthroat. I think that’s the word. We would fight and knock each other down in the courtroom, then go and have a drink after that. Now there’s generally so much money involved in each case that we almost don’t have time for collegiality and fun. Can you understand that? The trial of a case will last, routinely, a month or six weeks—and, again, that’s the horizontal-vertical thing. I’m comparing a case now where maybe you have four defendants, major corporations, dozens of witnesses, hundreds of thousands of documents, 20 lawyers involved, with representing some guy who hijacked a car or got caught with a trunkload of marijuana.

But the skills that are applied to both of them, you can generalize about them. You still have to understand your opponent. You still have to analyze him and what his mindset is. You have to know something about his client and what it’s going to take to be successful. You still have to talk to witnesses and you still have to be able to sense when a witness is lying. There is an instinct there that you have to rely on. And you have to know when to go for the jugular on cross-examination. When to be nice and when to not be so nice.

And I’ve gone to preaching and I’m sorry. I didn’t mean to do that.

 

You mentioned sensing when the witness is lying. Is there anything you do in those instances? To tip off the jury, for example?

That’s your job. A great—if not the greatest—tool in cross-examination is to find a fact which is false. Now the fact can be innocently false or intentionally false. The innocent falsehood casts doubt on the accuracy of the others; but the intentional fault is a mens rea thing. It’s something that, if you can expose it, you are almost to the point of having the jury not accept anything the witness is saying. And you want to talk about satisfying—that’s one of the most wonderful feelings in the world. That’s like recovering a fumble or intercepting a pass. It not only rushes through the lawyer who exposes it, it has the deleterious effect of doing something of the opposite of that in the opposing lawyer.

 

Example?

I have a great one that I remember. This is in the early days of videotape. Almost nobody did videotape depositions at the time I’m talking about, but I took this expert witness’s deposition on videotape. Some months later, maybe a year and a half later, he comes into the courtroom in the other side’s case and gets up and he testifies. I knew he had said something that was a lie. It was not the kind of thing that would’ve just been a mistake. I knew he knew better, and he had said it to help the case for the other side, and for no other reason, and it was a pretty damaging statement. So I asked the judge to let us take an early break for lunch; it was 15 minutes early, and the judge said fine. So I went and found the exact piece in his deposition where he had said the exact opposite.

When we got back after lunch, he was my witness—they had turned him over to me—and I asked him the question that he had testified to, and he said the same thing he had said before lunch. And I said, “Now you’re absolutely certain of that.” “Yes.” “And you’ve never said anything different from that.” “No.” “And it’s the kind of thing you can’t be mistaken about—if it were not so, you just couldn’t say it, could ya?” And he said, “Absolutely not.” So I said, “Well, I want to show you what you said to me at your deposition.” I turned on the thing … and the air went out of his balloon. And the rest of my cross-examination of him was a tacit statement from him—not said, but he and I understood—“You ask me whatever you want me to say and I will say what you want me to say.”

Jurors tell lies, they’ve all told lies in their lives, because they’re human beings. People lie. What they don’t expect is somebody to come take an oath and get on a witness stand and lie. They don’t have much forgiveness for that.

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