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James R. Murray
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Trial Pros: Blank Rome's Jim MurrayLaw360, New York (March 14, 2016, 2:41 PM ET) Jim Murray isthe chairman of Blank Rome LLP’s policyholderonly insurancecoverage group and is resident in its Washington, D.C., office. He isa Fellow of the American College of Trial Lawyers, the AmericanCollege of Coverage and Extracontractual Counsel and he is listedin the National Trial Lawyers’ “Top 100 Trial Lawyers” for theDistrict of Columbia.
He has litigated cases in 24 states for corporate clients. He hasalso represented individuals and several religious institutions andgovernmental entities in lawsuits against insurance companies. Hewas a Law360 “MVP” in Insurance Coverage in both 2013 and2011.
Jim was raised on the Fort Peck Reservation in NortheasternMontana. His mother attended private college and his father dropped out of the second gradeto work the family farm.
Q. What’s the most interesting trial you’ve worked on and why?
A. I tried Hudson Insurance Co. v. Primary Health Inc. in state court in Boise, Idaho in 2013.The jury awarded health care provider and policyholder Primary Health Inc. $2.4 million incompensatory damages and $9.7 million in punitive damages for bad faith refusal to settlewithin policy limits. The punitive damages award was $700,000 more than I had asked thejury for in closing argument. I had only seen that one in the movies.
What was compelling to me in this case was the human element of the underlying claim andour ability to tap into that element on behalf of the medical provider/policyholder. It was atragic story. A 42 yearold mother of four children (youngest being eight) died of anundiagnosed pulmonary embolism, despite no less than six visits to the physicians in the fiveweeks before her death. The plaintiffs’ counsel in the underlying medical malpractice case hadmade three offers of settlement at or within the insurance policy’s limit, prior to and duringtrial and Primary Health urged the insurance company to settle the case. The insurancecompany rejected the settlement offers and the underlying malpractice jury returned a verdictagainst Primary Health that was more than twice the policy limits.
I have tried cases that involve much more money than this one — often in our cases, thereare hundreds of millions of dollars at issue, involving difficult issues of insurance policyinterpretation (the definition of “occurrence,” the applicable deductible, the horizontalexhaustion of primary policies). The reallife story underlying the insurance and bad faithissues in this case made the representation especially interesting.
Q. What’s the most unexpected or amusing thing you’ve experienced while workingon a trial?
A. I was trying a case in state court in Seattle, Washington. I needed a standardofcare legalexpert. At the time, an accomplished and very highlyregarded Seattle trial lawyer was PeterByrnes of Byrnes & Keller. Despite his 30year career, Peter had never agreed to testify as anexpert. Somehow I cajoled him into doing so in this case.
I believe that the best expert is often someone who is undeniably qualified person in a chosenfield, has never testified before, but is willing to do so in your case because he or she believesso strongly in merits of the client’s position.
That was the plan. I asked Peter on direct: “You have not testified as an expert before. Whynot?” Peter answered, as anticipated, that he just did not want to be an expert but that thiscase presented such compelling facts in my client’s favor that he had agreed to do so.
Perfect. I was about to ask the next question. However, the senior trial lawyer was notfinished. I knew that he was about to have some fun at my expense. I also knew thatstanding there, directly in front of the jury, I no longer had control of this examination.
He continued: “You see, trial lawyers will ask experts to look at a case. They say just take alook at this one little document. Then they started sending more and more paper. Just like youdid, Mr. Murray, in this case. You said you were sending me a notebook, then you send acouple boxes of documents and it never ends. That’s why I would rather be standing whereyou are instead of sitting where I am.”
He stopped. It was natural, masterful, the jury loved it, and everyone appeared amused bymy bright red face. I said: “Thank you, Mr. Byrnes. Okay if I continue now?” He smiled andsaid “You may.” We all chuckled. Fun in retrospect, but don’t try this one at home.
Q. What does your trial prep routine consist of?
A. Most of my preparation is “by the book” — early identification of a theme, trialfocuseddiscovery, early trial notebook, early preparation of opening argument.
I would stress two points on opposite ends of the spectrum.
First, it is not just enough to “identify” a theme early in the game. Every word of the themehas to be constantly tested and adjusted. My ultimate test, a month or two from trial, is mywife. She is smart and chockfull of common sense. She doesn’t tolerate pretension. Mostimportant, she is not a lawyer. I begin to talk (“out loud”) to her about theme, words, tone.Almost always, I adjust to her advice.
Second, many lawyers don’t appreciate that cross examination, especially in a civil case, hastwo components. One is what transpires in the moment at trial. The spontaneous. But to getthere (and to make sure the spontaneous is in your favor) you must prepare a detailed crossbased on deposition testimony. I don’t understand why more lawyers don’t do this. I take theverbatim answer to a question in the deposition and transpose it into a declaration “Youwouldn’t in a thousand years have thought Mr. Jones did this on purpose.” Every single wordother than “you” is from the deposition transcript. Any response other than “correct” can beimpeached. Soon the witness will learn that if you are looking at your notes, you are pinninghim or her to his deposition.
Q. If you could give just one piece of advice to a lawyer on the eve of their first trial,what would it be?
A. On the general side: try to be likeable. Many trial lawyers are not that likeable, althoughalmost everyone has some redeeming trait that can be embraced: perhaps it is modesty, orshyness or an undeniable earnestness. You have to be you, so you had better figure out at
least one likable trait and take advantage of it!
On the specific side: never underprepare for direct examination based on the idea that thewitness is friendly and, therefore, all will be well. Direct examination is one of the mostdifficult, and underappreciated, skill in civil or criminal trials. Direct examination is how “thestory" is first told to the jury and an effective trial lawyer approaches it with the sameexcitement and preparation as cross examination.
The key is a well prepared checklist, along with intimate familiarity with the key documents.Written scripts that contain entire questions are killers of effective trial lawyers. You are notprepared for direct examination until you know the topic and the witness so well that you areable to engage in a true “conversation” with the witness in front of the jury.
Q. Name a trial attorney, outside of your own firm, who has impressed you and tellus why.
A. This one is easy: Chuck Ruff (Charles F.C. Ruff), who was White House counsel underPresident Clinton.
Chuck and I tried a bank fraud case in federal court in Tampa, Florida. Chuck’s summation onthe floor of the Senate during the Clinton impeachment trial will surely go down as one of themore eloquent presentations ever made in that chamber. His closing words to our Florida jury,on behalf of an unknown soul, contained the same compelling logic, but at the same time anunderstated appeal to human emotion, as did his defense of the president.
Chuck’s technical trial skills were, as one might expect, firstrate. But, unlike most of us,every aspect of his personality exuded compassion, sincerity and, yes, likeability. Tough tobeat that combination.
The opinions expressed are those of the author(s) and do not necessarily reflect the views ofthe firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. Thisarticle is for general information purposes and is not intended to be and should not be takenas legal advice.All Content © 20032016, Portfolio Media, Inc.
