Face the Jury” is a podcast dedicated to all issues involving medical malpractice – what it is, how to spot it and how to prevent it while protecting yourself and your family. 

In today’s episode, listeners get to peek behind the curtain of Bell Law Firm as Lloyd discusses case preparation, approach, and how to achieve success for clients. Lloyd is joined by Dan Holloway, Partner at Bell Law Firm.  

Lloyd: I’m pleased to have you here today, Dan. As a brief introduction, Dan is an attorney at Bell Law Firm and comes to me by way of South Dakota, where he was working for a personal injury trial lawyer. Before that, he worked at Boies, Schiller & Flexner, a law firm in New York. Dan has a very interesting background, but I met Dan out in Wyoming while attending a trial lawyers’ conference. Dan, I’d like you to tell us more about yourself and your experience working at Bell Law Firm. 


Dan: In addition to that intro, I want to mention the two wonderful judges I clerked for – John Bailey on the DC Superior Court and Myron Bright on the 8th Circuit. He was one of the last remaining LBJ judicial appointees.  


Lloyd: For clerks at the federal level – circuit court clerks – it’s my understanding that when you finish the clerkship, it’s common to go into big law and work for large law firms. Was that the path you took in your journey as an attorney? 


Dan: Yeah, that’s what I ended up doing. If you could live multiple lifetimes, that’s probably not how I would set things up for my second life as a lawyer. I think the more interesting, fun journey as a lawyer is the one you took.  


Lloyd: You’re talking about a practice focused on jury trials in a courtroom as opposed to working with judges, research and writing that you have so much skill with?  


Dan: Yes. The way you came up trying cases, receiving mentoring from veteran trial lawyers and judges in that context.  


Lloyd: I want to back up a bit. Why don’t you talk to us a bit more about the trial lawyers’ college event where we met and a bit about your experience that got you to this place in your career. 


Dan: I was at Boies Schiller for eight years, where a relatively small case was one where $500M would be at stake.  


Lloyd: Only $500M.  


Dan: In many of the cases I worked, there would be multiple billion dollars at stake. To a law student, that can sound fun. But in real life those kinds of cases mean multiple law firms are working on the same side. It includes teams of five to 25 lawyers and massive amounts of in-office research, document review and writing. There are people for whom that’s the kind of work they really want, but it wasn’t the kind of work I really wanted, so I left. I went from Boies Schiller to basically a one-man firm based in South Dakota – Mike Abourezk, whom I know you’re familiar with.  


Lloyd: I am. Mike is a trial lawyer and he’s also a fellow member of the Inner Circle of Advocates, which I was honored to be invited to join about two years ago. He’s an excellent attorney and very fine person, so I can understand you being attracted to working with someone like that.  


Dan: It was sort of a rebooting of my career as a lawyer. Mike is a brilliant guy and fun to be around. Back to the conference. As part of trying to reshape myself into a proper trial lawyer, I traveled to Gerry Spence’s Trial Lawyers College and ran into you my first day.  


Lloyd: That’s how I remember it. I remember sitting in a small group breakout session with maybe 15 people. While we were going around the room introducing ourselves and explaining how we got there, I remember we happened to sit by each other. You were introducing yourself and you concluded by saying, “so far, I’ve met a few people” and turned to me and said, “this guy, he seems like a pretty nice guy.” Just casually – anyway, I remember that day well.  


Dan: I don’t think I would say something as extreme as you seem like a nice guy. I probably said you seem okay.  


Lloyd: Maybe that’s closer to the truth – I’ve probably cleaned it up in the re-telling.  


We spent a month there working together in different exercises and scenarios. Share a little bit of your experience out there. It’s very different from working in New York for a major firm on multi-billion-dollar cases. 


Dan: To be a good trial lawyer, you need to be a good person and you need to be emotionally mature and in touch with what’s going on in a case. In order to become the sort of person who can be that, you need some degree of psychotherapy. Spence started Trial Lawyers College, as I understand it, rooted in a psychotherapy-based approach to becoming a lawyer, understanding what’s going on in a case and presenting it to a jury in a way that will connect with them. 


Lloyd: That’s my understanding, too. What impresses me most about Spence is that he founded this Trial Lawyers College during a time when he was wildly successful and didn’t need to take on another job. Even as successful as he was, he remained open to new ideas and open to learning. I tell people, particularly younger lawyers, that as soon as you think you have everything figured out, you are going to take it on the chin the next time around. You’ll never have it all figured out and you always need to be open to new information. I’ve got a close friend that views his role as a trial lawyer through the lens of a lifetime of learning. We always need to be reading, learning, open to new ideas, open to revisiting old ideas, and I’m impressed that Spence – with all his success – saw application in a different area and seized on it.  


Dan: I want to grab this opportunity to flatter you a little bit.  


Lloyd: Please, I’ll give you all the time you need.  


Dan: I will say, I’m not naturally a giver of compliments, but one of the things about you that’s really made it great working with you for the past few years is you are shockingly open to suggestions, new ideas, in addition to constantly reading books and new information for new ideas. You are remarkably open to occasionally impertinent suggestions by much less experienced, junior partners. I’ve observed this in your dealings with other people and it’s a rare attribute. A guy with your track record and level of success; it would be understandable to take a much less accepting attitude.  


Lloyd: I appreciate you saying that. One of the things I’ve been so grateful about having you on board is that you are an intellectual at heart. You are always thinking and one of the things I wanted to talk about today was – while we were out in Wyoming, you casually mentioned to me one day that you had been working on a book you were about to complete, and you mentioned it like you were talking about what you had for breakfast. Published shortly after joining Bell Law Firm, the title of the book is Lawyers, Judges, and Semi-Rational Beasts. I read it when it came out and the topic is fascinating to me.  


It’s a deep dive into the cognitive science of human persuasion – things that allow us and lead us to make decisions, such as our emotional component, role of logic, and cognitive biases. You examined these topics and distilled material from so many authors I had read while making the ideas accessible. Tell us about that. How did you take interest in this topic and how did it evolve to the publication of a book?  


Dan: The book started with my own note taking on various books, and after I had been reading in the area for years, I had taken notes on somewhere close to 100 books. I was trying to solve a problem for myself. It is tempting and easy to follow every new report or study that comes out in psychology, and if you do that long enough and follow those discussions close enough, you realize there are a lot of interesting sounding, attention-grabbing things that probably don’t hold up. And if they do hold up, they probably don’t help in the context of jury trial. 


Lloyd: Give us an example of what you mean when you say that.  


Dan: I don’t want to offend people, particularly people with more impressive academic credentials than I have, but here’s an easy one.  


For many years, Paul Ekman – whose research inspired the TV show Lie to Me – has fostered a mini-industry among trial lawyers of training people to recognize micro facial expressions, or facial expressions that flash over someone’s face for half a second or less. The idea is if you get good at recognizing micro expressions, you’ll have greater insight into what’s happening emotionally for a person you’re looking at. Translated into practice, people think about it as being a human lie detector of sorts. You’ve got all these trial lawyers, including me, putting a lot of time and energy into looking at micro expressions and body language. The idea is you’ll be better suited in a deposition or trial.  


Then one day, there’s a survey that came out in the book Dupe, and the basic conclusion was that micro expressions aren’t useful for law enforcement or lawyers. Ultimately, the reason I started the book was I need a way to sort through this blizzard of discreet studies, findings and suggestions and pull out the ones that seemed reliable and useful.  


Lloyd: From my perspective, there are some autobiographical components to the book that were interesting to read. I was laughing to myself as you talked about your book just now because I don’t think you expected it to be received the way it was with such a wide audience. Will you tell us about the email you received from a law professor in Tokyo?  


Dan: Yeah, that was a nice surprise. We’ve done close to zero marketing on this book, but somehow, the book came to the attention of a law professor in Japan. I got an email one morning saying he would like to translate it into Japanese for his law students, asking if I would give permission to do that. Well, of course I would.  


Lloyd: And you thought you were being punked.  


Dan: I did, and of course I checked him out and everything checked out. He had translated books by some legal academics in the U.S., including one of Eric Posner’s. That was surprising and a very nice email to receive on a Sunday morning.  


Lloyd: That is very nice to receive, and a couple points need to be made. It’s clear when you wrote this book, you obviously weren’t expecting it to become the next Grisham novel allowing you to retire from Bell Law Firm as the next greatest pop culture author. That seems pretty evident. It seems you primarily wrote the book for yourself as a way to understand more profoundly the issues you had been reading in these other books. Is that fair? 


Dan: Yes, the whole thing started as a way to work through the issues in my own mind. I have to say, I’m glad I did it. It really did help. I have a clearer, and I think more useful, understanding of what works for somebody doing legal work. I also think it helped make me a better person to some extent.  


Lloyd: You touched on a point, probably not intentionally, but the fact a Japanese law professor from a different cultural background would see the value in the lessons and information in your book speaks to a larger point: these principles are universal. The way we are programmed through our evolution and development is we have certain cognitive patterns and ways of approaching the world. Our brains are wired to accomplish certain tasks, but that wiring also has gaps and weaknesses and makes us susceptible to biases we may not know we have. The reason I found your book so interesting is that it translates directly into the work we do with juries, because juries are made up of real people and come to the courtroom with their own biases. 


As an advocate, you must be familiar with these biases. One of the most common biases we see is confirmation bias. We see this in our medical malpractice cases where a physician will reach a diagnosis they believe to be correct based on whatever limited information they have, and when presented with new information, they’ll systematically disregard it because it doesn’t fit the conclusion they’ve already reached. We all do this – once you reach a conclusion about something, you tend to own that belief and you’re more willing to accept information that supports that belief and reject information that does not.  


These cognitive biases have direct bearing on our ability to adequately represent our clients. If we don’t understand these biases as advocates, we won’t be as successful in rooting out the truth in our cases. Talk to us about your work discussing these different biases. Can you explain further from your research and writing, some of your own conclusions? 


Dan: Well, the conclusion I came to by sorting through this information is that the most important principles you hear should feel very familiar. Anything that is true about how the human mind works should sound familiar because you have been living with a human mind for however long you’ve been alive. One of the annoying aspects of this is you go through a lot of effort to learn something, then at the end of it, there’s somebody sitting on the side that says, “well that was obvious.” The whole field of empirical psychological research has a little bit of the flavor of “we shall not cease from exploration. In the end of our exploring will be to arrive where we started and know the place for the first time.” That’s the overriding feeling I got anyway from working through these concepts.  

It’s one thing to write a catalogue of the various findings psychologists have identified and published, but for a lawyer, the sincerity of a true heart is the only requirement of effective advocacy. No one wants to know that, because a true heart is so much harder to acquire than a few advocacy techniques. I would say the book I wrote could be seen as a book-length unpacking of those two sentences. 


Lloyd: How does this apply to our practice as trial lawyers who are focused on representing people in malpractice cases? At its core, what we’re involved in is persuasion. Juries can spot unethical lawyers, so it’s our goal is to be our authentic, decent selves in trial and show the jury we care deeply about our clients and their future. 


Dan, I’m happy, proud and grateful that you’ve chosen to hitch your wagon to my train and help people who need it. I think your background, particularly in big law, and your excellence in writing and communication skills support the areas where I need support and it’s all to the benefit of the client. I want to thank you for being a big part of this firm and helping us do great work for clients. 


Dan:  I have loved the work I’ve been doing with you and I’m looking forward to the years to come.  



Stay tuned for Season 2, Episode 5 of Face the Jury.