Nossaman Partner Patrick Richard Profiled In Law360 "Trial Pros" Q&A
Patrick Richard, a Partner in Nossaman’s Litigation Practice Group, was profiled in Law360 as part of its Trial Pros Q&A series. The series provides insight into how the most respected trial attorneys in the field consistently achieve successful results for their clients. Mr. Richard’s full Q&A can be found below.
Patrick Richard is a partner in Nossaman LLP’s San Francisco office and serves as the chairman of the firm's financial services practice group. He has nearly three decades of experience as a commercial trial lawyer. Richard has represented publicly traded companies, individuals and government agencies as both defendants and plaintiffs. He has been lead counsel in over a dozen complex civil jury trials ranging from two to 12 weeks, with successful outcomes in every one of these proceedings. He has also handled numerous arbitrations, administrative proceedings and bench trials. Richard has won a number of precedent setting jury verdicts — including most recently a $169 million judgment in FDIC v. Van Dellen, a month-long professional liability trial arising out of the failure of IndyMac Bank.
Q: What’s the most interesting trial you've worked on and why?
A: Every trial has many memorable and unique moments, whether a two-day trial or one stretching 12 weeks. I’ve never had a trial that wasn’t very interesting, at least to me. But I’d have to say the most interesting jury trial involved our defense of fraud claims brought by the U.S. Securities and Exchange Commission related to misdating of employee stock options.
I found the case interesting for several reasons. First, my client was fighting for his professional life. He had never worked for a public company. He clearly had not committed fraud.
But our case — a civil enforcement action — went to trial in 2010 shortly after a jury convicted a CEO of criminal fraud for misdated stock options. The SEC never showed the slightest doubt that they would prevail on claims of fraud and aiding-and-abetting fraud. I knew we had our hands full.
The progression of the government’s case was also interesting. Their trial attorneys used several rhetorical devices — like cartoonish graphics and repeatedly having their witnesses physically point a finger at my client as the "responsible" person. We stayed focused on the evidence and looked for ways to undermine the credibility of the SEC’s case.
And the SEC’s case took a turn for the worse when their first witness admitted that she told the SEC attorneys a key email about her own stock options looked bad. So they didn’t show her that one on direct. I had her point to the attorneys who had prepared her to testify.
Most of their other witnesses admitted similar oversights.
I kept thinking is this all they have? While we were all keenly aware of the earlier criminal conviction in a similar case, every case is different. I knew our evidence was stronger.
The final blow came after the SEC’s feeble cross-examination of our expert. When they established that his opinion wasn’t peer-reviewed, we had him explain that the SEC had in fact contacted him before filing the backdating cases. They asked whether he might be an expert. He declined after reviewing the 10Ks of several companies with stock option issues, finding that the issue simply was material. And so you gave the SEC attorneys the same opinion that you’ve shared with the jury today?
The jury reached the right result: no fraud.
Q: What’s the most unexpected or amusing thing you've experienced while working on a trial?
A: It’s hard to pick just one thing, but I’ve had two jury trials where the plaintiff was caught in a surprise: lying on the central issue involving their own prior affidavit. The first was 20 years ago. I was defending a well-known attorney in a nasty suit brought by a former client. The plaintiff’s lawyer took her through her own declaration from the underlying suit. He went through it in great detail. The plaintiff testified very specifically that my client told her to sign the last page without reading the earlier pages. She described for the jury the exact time and place in the office. Only later, the plaintiff claimed, did she learn that my client had snuck in a new paragraph not in the earlier draft.
It was almost convincing.
The following Monday I got to court early, placed a transparency of an earlier draft of the plaintiff’s declaration on the Elmo projector, and made sure it showed up on the screen. I then turned off the projector and waited for the judge to take the bench.
The plaintiff took the stand. I walked her through her testimony from the previous Friday. She emphatically repeated her story. The jury looked at my lawyer-client in a way that pleased the plaintiff.
But then I turned on the projector. The key paragraph in the declaration was actually in the plaintiff’s own handwriting. She admitted it was her writing. She stuttered for an explanation. But it was too late: She had obviously lied. She clearly reviewed the declaration in great detail before signing. In fact, she authored the entire key paragraph! The judge leaned forward, looked at the plaintiff, looked at the document, made a note and sat back. The jurors were riveted. I had had my Perry Mason moment.
The jury returned a defense verdict, and awarded my client another $300,000 in unpaid fees on the cross-complaint.
Q: What does your trial prep routine consist of?
A: As my colleagues know, I like to get a case put together well in advance of trial. I tend to focus on my opening statement and key cross-examinations. About three months before trial I start presenting some or all of my opening statement to various audiences, including staff and my tolerant spouse. I always ask the same questions: Does this part make sense? What’s your feeling about it? Can we shorten it?
I think an effective trial lawyer must recognize two very different trial preparation skills: logistics and creative efforts. Making sure witnesses are available, in limine motions drafted and jury instructions ready each present important logistical issues, and sometimes key legal issues. But those are quite different from the skills needed to frame the best possible case for the jury. My team and I devote great attention to 1) identifying the critical themes and key moral issues at stake and 2) how best to present those themes to the jury.
You need to make sure the logistical demands don’t swamp the need to think creatively about your opening, your best cross-examination, how to present your client and unpleasant facts in the best possible context. You have to be disciplined to set aside time for the opening and key examinations well in advance of trial: The demands of pretrial motions, burdensome exhibit and designations of video depositions all require more hours than seem available.
If you believe most cases are won or lost in the opening, you will make the time to get that right.
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: Strive at every opportunity to make an honest connection with the jury, from voir dire through closing. I find a bit of well-timed, self-deprecating humor can help make that connection. Sometimes an honest admission of a mistake can show the jury more than your best conceived arguments.
Focusing on the need to make an honest connection allows you to remember that striving for perfection may not be the best course: You should expect that you or your witnesses will make a few mistakes. But you should be honest with the judge and jury — if you forget your next question, you can say that. If you’re nervous during voir dire or opening statement, you can say that.
And if your own witness or client stumbles, do your best to show that it was an honest mistake. I once had an elderly witness get the key point precisely backwards. I paused. I decided I couldn’t wait and try to fix it later. Sir, is it fair to say you remember some things better than others? And with a few near-leading questions we were able to get back on track. The jury did not hold that misstep against us.
Q: Name a trial attorney, outside your own firm, who has impressed you and tell us why.
A: Vern Granneman of Pillsbury Winthrop Shaw Pittman LLP in Palo Alto. He represented defendants in a three-week jury trial I handled for Mitsubishi Electric. He had a good balance of tenacity and decency. The jury liked him. The judge liked him. He argued his in limine motions effectively. He had, and has, all of the qualities of a very effective trial attorney.
Fortunately for my client, Vern’s co-counsel was rather arrogant, decided he didn’t need any graphics or PowerPoint, and failed to appreciate the impact his clients' testimony had on the jury. But I was impressed with Vern. We spoke later about the ups and downs of that trial. We’ve stayed in touch over the last 10 years. I would definitely recommend him as lead trial counsel, especially in a difficult case in need of a steady hand.