Bud Kirk Talks about Winning Courtroom Strategies
01.03.17 | Permalink
Bud Kirk, one of Rumberger, Kirk & Caldwell’s founding partners, has built a legendary career as a tough and successful trial attorney. For more than 40 years, he’s defended many of the nation’s largest corporations in extremely complex product liability litigation, often in hostile territory. He also has devoted his practice to representing clients in commercial litigation and professional liability.
One of the keys to Bud’s success is that he’s not afraid to work very hard. In addition to the enormous amount of work already poured into a case before it goes to trial, the team taking the case to trial lives and breathes the case from beginning to end. “When we go to trial, there’s a small team including another lawyer, paralegal, secretary, and sometimes a runner to carry boxes back and forth. We travel a week ahead of time, drive in a big white van and find a suite in the hotel to set up an office with a big refrigerator filled with food and beverages. We work, eat and sleep there. In fact, we seldom even leave the hotel. I find myself going to bed with a file in my hand and waking up with it in my hand,” explained Bud. “The entire process is extremely organized and methodical.” Back in the day, as a tradition, the team would take a break on Friday or Saturday prior to the opening of the case by going out to find some “bad food” before going back to the hotel to watch My Cousin Vinny together. “On Sunday, we would prepare opening statements and final trial preparations,” he said.
Most trials last two to four weeks, but can sometimes go longer. Bud remembers one trial that lasted three months and another that went seven. “That can be a brutal situation on home turf, but imagine being on the road and away from home the entire time.” For Bud, it was a way of life. Throughout his entire career, he has only tried one case in Central Florida.
In addition to working hard, Bud looks at the case through the plaintiff’s position and confronts the sympathy factor. “The entire time I’m working on a case, until the trial begins, I live in the plaintiff’s skin. I try to think of what I would do if this had happened to me. I don’t step out of that role until day one of the trial when I become the advocate for my client,” he said. “Over the course of my career, I found that it’s also important to be extremely aggressive with the plaintiff’s experts, but nobody else,” said Bud. “Sometimes it’s necessary with the plaintiff’s lawyer, but not usually until inferences in closing statements.” In addition to being guardedly respectful of the plaintiff’s counsel, Bud believes that you earn trust by sincerely showing your concern and empathy for the plaintiff. “I never minimize damages,” said Bud. “I want the jury to know that I can empathize with the plaintiff.”
When it comes to jury selection, Bud believes that it is impossible to ever get 6 of 12 perfect jurors. “In defending these large corporations, we are often in hostile territory, so it’s very important to work on obtaining trust from the jury and to make the jury want to do the right thing. But this can be complicated when dealing with plaintiffs who are very badly injured and massively damaged,” he explained. During jury selection and questioning, Bud likes to spend time finding out what’s important in the life of the potential juror. “I ask them to talk to me about about themselves. What the jurors describe may not really be who they are but whom they idealize and wish they were.”
One case where this worked particularly well was Williams vs. General Motors (Lowndes County, Alabama, 1996) where Bud was able to get a defense verdict in a county that had not ruled in favor of a corporate defendant for as long as six years leading up to the case. “We had a lot working against us in this case. It was a poor, rural community where the plaintiffs’ injuries were severe and life changing and the family was related to the Chief Deputy,” explained Bud.
When interviewing potential jurors, Bud said he was told that GM could get a fair trial in Lowndes County, and if they came to the conclusion in favor of GM, could they tell the plaintiffs (who many of them knew) that they were sorry for their tragedy, but they had to listen to his or her conscience. “When each said yes, I told them I would remind them of that during my closing,” said Bud. “When the jury came back with the defense verdict for GM, it was one of my best career moments to know that I was able to do what others hadn’t.”
Bud’s success for this particular trial was recognized by the The National Law Journal in its annual edition of "Winning" which highlights ten top litigators in the country. Bud became one of General Motor’s elite lawyers— one of seven who could go anywhere in the country to defend the corporation.
For those young attorneys seeking to become strong assets to their firms and clients, Bud advises them to have a strong work ethic and to be efficient. “One of the problems with young lawyers is that they want to be liked. Worrying about being liked is one way to get your butt kicked,” said Bud. “You want to be respected. Once you’re respected, the like comes easily.” Bud recalled a case he had worked against a plaintiff’s firm of unbelievably talented lawyers where the tensions were high. “It was a bloody case and we battled hard. In the end, we shook hands and had earned each other’s respect. We became great friends and even though years may go by without seeing one another, the friendship remains,” said Bud.
From understanding and addressing the plaintiff’s perspective and tragedy to being tough on expert witnesses, Bud has shown empathy and compassion for those suffering while representing the corporations accused of causing the wrongdoing. He has been and continues to be a strong advocate for his clients delicately balancing these opposing forces. Above all, he stresses the importance of questioning and choosing jury members and inspiring them to listen to the facts of the case without prejudice.
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