Have a cow: Lessons learned as a litigator
By MATT CHANDLER
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You go through law school - the grueling schedule, spending every spare moment in the law library while your non-law friends are out partying.
You make it to graduation and then study for the bar exam, a test one area lawyer joked should be used as a torture tactic to get terrorists to talk.
Finally, the big day arrives. You made it.
From here on in, you're looking at a career filled with tasks such as sifting through the charred remains of houses, disassembling hundreds of burned-out dryers and becoming intensely familiar with the milking habits of dairy cows.
"No, no ... it was LAW school," you say to yourself. "I don't know the first thing about a dryer or a fire investigation, and I certainly didn't take out six-figure student loans to spend time with cows."
Well, for those who choose to work as litigators, including John Weinholtz, it's all part of the job.
With every case comes the prospect of having to immerse themselves in something they know nothing about. And they often have a relatively short time frame to become quasi-experts armed with enough knowledge to take the case to trial.
Western New York litigators have lots to say about their work and the unique things they have learned over the years.
Weinholtz has spent the bulk of his career litigating toxic tort cases. But it was a toxic case of a unique variety that stands out in this Buffalo attorney's mind.
"I had a bad feed case where a dairy farmer was suing our client, who made cattle feed, and the claim was that he sold bad feed that caused the cows to get sick and some to die," said Weinholtz, of Nixon Peabody in Buffalo. "I am John from suburbia and the only farms I had ever seen were those I viewed out of a car window on a family road trip."
That all changed when he found himself knee-deep in udders while trying to learn the nitty-gritty of life as a cow.
"Thanks to this case, I got to spend a lot of time with cows - learning about their life cycle, milking cycle, the milking process. I learned all about the different types of feed and exactly how a farm is operated," he said.
If the thought of a buttoned-down lawyer trudging through cow pastures makes you smile, it should. Weinholtz himself chuckles as he recalls the amount of time he spent touring rural Western New York to study the habits of dairy cows.
He won the case for his client, and a few of the things he learned along the way stuck with him.
"What I took away from this whole process was that running a dairy farm is an incredible amount of hard work. Sometimes when you are getting ready for a trial, you feel like you are working 24/7. But for these farmers, that is their life every day," Weinholyz said. "Because of this case, I really, really appreciate it every time I enjoy a nice, cold glass of milk."
When John Freedenberg was a student at the University at Buffalo Law School, he never imagined he would be spending some days with a toolbox, working on home appliances. But thanks to his legal niche as a products liability attorney who specializes in dryer fires, that's what he often does.
"One of the products I have defended extensively in fire litigation is the residential clothes dryer, representing each of the major manufacturers of domestic clothes dryers," said Freedenberg, founding partner of Goldberg Segalla.
"I have personally had my hands in, I would estimate, 200 dryer disassemblies," he said.
Getting down on his hands and knees and, as he said, "getting dirty," is the most effective way to become an expert on the product. That's how an attorney learns valuable information firsthand that they can later use to gain an edge in a case, according to Freedenberg.
"What makes product liability work so interesting is that is exposes the litigator to science and engineering, to medicine and economics, among other disciplines," he said.
"You not only have to be able to talk about the product, you have to be able to go head-to-head with experts."
He's currently studying to become a certified fire and explosions investigator, but don't expect him to quit his day job. The extra education is another example of the depth of knowledge required for litigators to be effective in representing their clients.
Marco Cercone, meanwhile, is a litigator with Rupp Baase Pfalzgraf Cunningham & Coppola. Like Freedenberg, he focuses much of his practice on fire - albeit a different type.
"I represent insurance companies in cases of arson, where someone has burned down their home and the insurance company has denied the claim," he said.
Civil arson cases have given Cercone an opportunity to learn more about fire and fire-related topics than he ever dreamed coming out of law school. Due to the nature of the cases, however, he also gets to see civil cases sometimes turn criminal.
"The authorities take it to a totally different level when it comes to a criminal arson case, with informants and all those sorts of things," he said.
As for the civil side, Cercone said in the eight years he has been handling them, he has become - by necessity - well-versed in the world of arson.
"Learning about fire science is intense. I'm a lawyer; I'm not a fireman or an investigator. So I'm there, learning about char patterns and how these cause-and-origin investigators reach their decisions. What is incendiary and what isn't," he said.
"You have to work with your experts to learn as much as you can about, in this case, fire."
So is it just like on TV? Can investigators really comb through the remains of a home and tell precisely which corner of a room a fire started?
"In most arson cases, you can pinpoint the fire to an exact point of origin," Cercone said. "It will depend on whether an accelerant was used. They will be able to tell from the char pattern, from seeing if the fire blew out and how it progressed."
David Brock has seen it all in his nearly 40 years as a defense litigator. The partner in Jaeckle Fleischman & Mugel said that for him, product-liability work offers a chance to become a jack-of-all-trades.
"I have had to learn on each new case the nuances of the product," he said. "Over the years, you build up a body of understanding of what goes into the design, production and marketing of a wide variety of products."
According to Brock, there's one case in particular that he won't soon forget. It's a prime example of the complex information that litigators must arm themselves with, he said.
"One of my more interesting cases, and one that is fairly recent, had me involved in the medical device field and the medical profession," he said. "I found myself studying and learning as much as I could about tissue transplants."
It was "completely out of left field," Brock said. Indeed, he said that although he typically focuses on product-liability cases, this time he was charged with learning the ins and outs of harvesting human tissue.
"It wasn't just learning what they (tissue transplants) are and how they came about, but the whole process of harvesting and processing tissues ... getting into issues of microbiology and micro-organisms and how they impact the tissue industry in various stages," he said.
Though he never expected, as part of his legal career, to work intimately with human tissue, he said it goes to show that he and others in this practice area should come to expect almost anything.
Added Brock: "When you get involved in handling the types of litigation that I have been handling, litigation that covers a broad range of products, nothing should come as a surprise anymore."
Peter Marlette, managing partner at Damon Morey LLP, says an international case years ago delivered a major lesson.
"I had a case where I was going to New York City to take a deposition of a Chinese national and the court reporter had provided an interpreter for the deposition," he said. "I would ask my question and the interpreter would repeat it to the witness in Chinese."
Things got interesting, he said.
"It would be a relatively straightforward question - a yes-or-no type of question - and the witness would go off for maybe 45 seconds in Chinese," he recalled. "I would wait for the interpretation and after the witness used hundreds of words to answer the question, the interpreter would look at me and give an incredibly short answer like, 'yes' or 'I don't recall.' "
After two hours of selective interpretation, Marlette said he learned an important lesson: Always bring your own interpreter.