- [Narrator] Thanks to
Indochino for keeping LegalEagle in the air and helping me look fly. - To this day it's still hard to imagine what $2 billion actually looks like but I think that jury
wanted to send a message. (trumpet music) - Hey Legal Eagles welcome back to the channel and we have a special guest with us here today. One of the greatest trial
attorneys in America today and an old friend, R. Brent
Wisner with the law firm, Baum Hedlund who has I think received every accolade you can receive as a trial attorney these days and I think most people recognize you as the attorney who won $2 billion from Monsanto just a few weeks ago. Brent, welcome to the channel. It's great to have you here. - Thank you Devon, it's good to be here. It's always good to see old friend. - I think what people would
really like to hear is what is it like to win
$2 billion from Monsanto? - It's pretty unreal, I remember sitting in the court room when the jury was reading the verdict and it was two different plaintiffs, both Al and Alberta and when Al's verdict came, he got a billion dollars
in punitive damages and I realized, oh my God, they're gonna give us two. And I remember turned around, looked at my associate, Pedrim and I went (beep) and it was pretty unreal. To this day it's still hard
to imagine what $2 billion actually looks like but I think that jury
wanted to send a message and I gave them an opportunity to do that and it was pretty cool. - Let's take a step back for a second. If people aren't familiar
with the Monsanto litigation. The Pilliod Case is the
third of three cases and you've tried two of them. Let's start with the first one. Where you only won $289 million that was the Johnson Case. Can you give us some background about what that case was about, what the basics of the case were and what your theme going
into that trial was? - Sure, this case is about
a chemical called glyphosate which is a active ingredient
found in the RoundUp herbicide or pesticide, just to give you a sense of how much has been sprayed in our society. The amount of glyphosate
that's been sprayed in the United States by itself is more than every
other pesticide ever combined. It is in everything we eat, it is everywhere we go. And Mr. Johnson and the Pilliods, they sprayed RoundUp for a
considerable period of time and after spraying it
for a period of time, they got something called
Non-Hodgkins lymphoma. Different severities of cancer but it is a pretty severe cancer and so we won a lawsuit against Monsanto, one of the most hated organizations or companies in the world and-- - Allegedly. - Allegedly, yes, it's really funny. I've gotten more free drink
at bars telling people that I sue Monsanto than
anywhere else in my life. It's the first thing I say
to somebody when I meet them. I'm a plaintiffs attorney
and I sued Monsanto and they go, let me buy you a drink. Anyway, run a lawsuit
and I think the theme, the main principle behind both cases in fact it was the first
words out of my mouth in both opening statements was that this is a case about choice. It's about the right of every
single person in the courtroom to make a choice about what
chemicals they expose themselves or their family to and knowing whether that it causes cancer is part of that choice and that Monsanto has robbed that choice of every single person in this courtroom, the Pilliods, Mr. Johnson and in doing so, they've caused cancer,
they've actually taken lives and so you have to do something to fix it. That was a big part of the case, that and also trying to make the case seem like a truly historical moment. That's a really important
way to frame a case. Jurors don't want to be there but if you give them the idea
that they're making history, you can really take them
as far as you need to go. - There's so much I
want to talk about here. - Sure. - As an attorney myself
and a trial lawyer, I'm trumping it a bit to talk about every single aspect
of trial tactics here. Let me start with this. How did you decide on
that particular theme? Is that a theme that carried through both through the Johnson litigation and through the Pillion litigation itself? - I spent a lot of time thinking about it and I kept coming back to
what is the moment right? What is the moment, where the actual tort occurs? It's not actually when you spray because when you're spraying it you've already made the decision to purchase the product. And I realized that all these
cases come down to a moment when you're sitting there in a store, a home depot or whatever and you're looking at this wall of RoundUp and you're thinking, should I buy this stuff to get
rid of the weeds in my house, that's that moment and
that moment is captured by a question of choice and I feel like putting the jury and putting basically everyone in those shoes, gets you
to a place where they go, okay, I can see how this lack of disclosure of the cancer risk could actually cause a real problem. That's how we got there and it kept going different
ways, different themes and I kept coming back to that moment. - Yeah. - And that moment was about choice. - To take one step back, this is history making litigation and you have a long history
of being a trial lawyer but my understanding is
that you did not start with this case, at least
the Johnson litigation you were not originally the
trial lawyer for that case. How did that come to your desk and how did you become
the guy that was going to be the lead trial lawyer who was going to actually try the thing in front of a jury in San Francisco? - Devon, you and I know that you always wanna be the lead trial lawyer, you always wanna be in
the thick of things. - Yeah. - You always wanted the opening, you always wanted the closing because that's what I
live and breathe for. Back in college when we're doing this in our mock trial days at UCLA. - And we're definitely
gonna talk about that. - Okay, of course, you did teach me most of the things I know about being a trial lawyer of course. - Oh stop, flattery
will get you everywhere. - Two weeks before the Johnson Trial and I'd been working on the
Monsanto RoundUp litigations sort of generally for
about a year and a half. So I knew the science, I knew the experts, I knew how to prove the
case at least on paper. Mike Miller who was
the lead trial counsel, he's seventy years old and
he was out kite surfing on Virginia beach. - Wow. - Power to the guy, 70 years old and he's still kite-surfing. Hope I'm doing that when I'm 70. And his safety harness didn't work right and he ultimately went 30
miles per hour into a pier. He was in the hospital, he almost died. It was pretty horrible. Well number two in this
firm, Tim Litzenberg, literally leaves the hospital
and calls me and says, hey Brent we got this case
going to trial in two weeks can you help out? We can't do this by ourselves and I said, absolutely
man, whatever you need, I can do it. The next Monday, he then
had a grand mal seizure and he was hospitalized for
seven days and basically I was the last man standing
which is one of the reasons why I at 35 years old was put in this really important position of trying a massive historical first case against
Monsanto involving RoundUp. Mike Miller calls me from
his hospital bed and says, Brent, go get them and I did. Ironically in the last
trial, in the Pilliod Trial in my rebuttal, after the closing the last thing I said to the jury is I actually looked at them
and I said, go get them. Kinda of came full circle. - We used to joke in
college and in law school that the ideal job for a trial lawyer is not to have to work all the discovery and all the motions and the paperwork but to just get called
in at the last second and get to go to trial. Somehow you got to a position
where you're living the dream. On the one hand sounds
amazing that's exactly what we always wanted to do but getting a multi-million, potentially multi-billion
dollar case a week before trial, that also sounds like
the most terrifying thing I've ever heard in my entire life. How in the world do you
go about preparing for that kind of a trial when the whole world is
gonna be watching you? - There's a lot of hyperventilating, there's a lot of not showing
how scared and nervous you are but I think also part of being
a trial lawyer is relishing that pressure, relishing
the anxiety of the moment and I actually remember
thinking that morning just before the opening statement, it was like this is it, this is what I've been
waiting for my whole life, this moment for this trial to be brought in complete underdog, taking on these massive corporate lawyers who are the most seasoned in the country and taking them on and
beating the crap out of them and that's literally the dream but one of the things
that people don't realize when it comes to trying case and obviously you know this Devon but the trial is this small part. - Right. - Of 100's and sometimes
1000's of hours of work that leads you to that moment particularly in these complex max torque cases. You got to relish the
moment when you're there. - Yeah, it's a curse and a blessing that if you are working on
a case for sometimes years, you know the case like
the back of your hand, it's your baby you know it as well as your own physical child so when you get to trial, you don't have to work it up in the same way as if
you were coming in fresh but without having that
benefit of doing the discovery. How long was the discovery, the part of the iceberg that we don't see, the trial is the part that we do see. How long was that litigation going on before it even got to trial? - To give you some context, this is a good way of thinking about it. There was I think 36 depositions that had happened prior to trial. - That's a good number of depositions. - Each deposition is
seven hours long, minimum and each of those depositions
probably takes a 100 to 200 hours of prep. You start doing the numbers there and it becomes sort of astronomical. In addition to that there was over 10 million documents produced by Monsanto. We had scientists from around the world, we had a lot of third party discovery against other scientists. It was a complicated case. One of the things that
we did in this case, at least in the Johnson Case
and we did in Pillio as well. But in the first case one
of the things that I did that everyone thought I was crazy for, was I wanted the smartest
jury I could find. I wanted PhD's, I wanted lawyers, I wanted people who could understand complex scientific issues on my jury because I knew that if they
were just lazy not smart people or whatever, they wouldn't spend the time to understand the science because when you look at science we win but if you just believe the
EPA or whatever, you lose. You need to have people who are willing to look at it truly in a new unit of time and give you an actual assessment. So that was pretty
dangerous trial strategy but it worked out. - Yeah, so on the channel we talk about the voir dire process because that is actually one
of the things that does show up in the movies and TV shows
sometimes is that you will see the dramatic selection of the jury. Let's dive into that. What is your philosophy when
it comes to jury voir dire which is the selection of the juries, the part that non-lawyers
actually do have some familiarity with because they get called for jury duty and you might be impaneled on the jury and you might have to get
questioned by an attorney but how do you go about doing that process and obviously your philosophy with this particular case was get the smartest one that you could. What does that process look
like from your perspective? - It's an interesting
process because most people who are on that jury, venire which is the group of people
you're picking a jury from, most people don't wanna be there, most people want to avoid jury duty. And so the first sort of metric is you wanna find the
people who wanna be there because people who wanna be
there will be more engaged, they'll be more interested. The people who don't wanna be there will be half asleep most of the trial. The other thing that you wanna do is you wanna get them talking. Lawyers love to hear themselves speak. It is what we love to do. - Excuse me, let me vehemently agree with your statement there. I'd like to continue to
pontificate and agree with that statement about the
vociferousness of attorneys. - The loquaciousness of
lawyers is quite astounding and how much we like to talk about things that we even agree on at times. - That, a 100% agreed. - One thing is to get them talking because you need a jury to talk. You need them to say
things and speak their mind but I think one of the other things and this is a strategy that we use particularly in San Francisco. You're in San Francisco,
this is not a jury pool that likes Monsanto, this is not a jury pool that likes GMO's. These are people who eat organic and want to live a healthier lifestyle. There's a natural dislike
of Monsanto walking in. One of the things that we
did from the very beginning is to downplay our case. The first thing we say to the jury is, nothing can be proven,
cancer can't be proven that's impossible, who here agrees? Who here agrees? Because we want people to say, yeah, you can't prove cancer. We want them to sort of dislike the case because when they actually get into the jury trial we're gonna win them. But we wanna weed out the bad people. So much of our job is
finding the bad jurors and then trying to get them to
be willing to be on the jury 'cause it's so easy to
get out of jury duty, you just say, oh I hate
Monsanto, I can't be impartial and then you're off. You got to get those
people to not say that or say, oh I don't like Monsanto but I can put that aside and be impartial. That was the fight when it
comes to jury selection, that is the fight. - Yeah, so let's dig down
into some of the minutia. When I was trying a case, I wanted to be as relatable
as possible to the jury and you're not allowed to
talk to the jury outside of the selection process
and the actual trial itself but I remember I was walking
through a metal detector and I saw some of the
members of the potential jury and I made a big show of
taking the metal pieces out of my pocket like, ah gosh, I'm stuck here just like you are. Is there anything that
you do to use every piece of the court process available to you so that you can ingratiate yourself with the jury and the judge and sometimes even the
bailiff and people like that? - The first thing you do
is you introduce everybody. Not just the lawyers, the paralegal, the person who's operating the tech, at my last trial I actually
introduced my parents who were in the gallery. I introduced Bobby Kennedy
who had been a mentor of mine, it was like a name parade
of all these people who were part of our team. It shows that you care
about everybody on your team and I think people related
to that immediately. The other thing that you have to do is not be above anything. So many lawyers are like,
I'm not gonna move chairs, I'm not gonna deal with
binders or whatever. I have people for that. I never let anybody do anything but me. I'm the one moving chairs, I'm the one handing the mic around giving it to different jurors. They see that I'm a person
who has no sense of pride or ego that I'm just there to do my job and I think that builds an
incredible amount of credibility. Actually at the Pilliod Case it was so bad that during voir dire there was a break, the judge actually go,
the defense council goes, judge, Mr. Wisner is being too helpful, he's handing around microphones
and glad-handing the jury, can you tell him to stop doing that? - Oh my God. - It was actually quite funny. - Is there anything you can
do in a jury Voir dire process to show that you are just
one of everybody else apart from taking all the boxes and drawing an objection that you're being too helpful? That's a fantastic objection to get. - I think it's really important to relate. First of all, put yourself
in the shoes of those jurors. They don't wanna be
there, they wanna do jobs or worry about how long
the trial's gonna be they're worried about, oh my God am I not gonna
get paid for six weeks. There's so many things
that they're worried about. One of the things is everyone starts introducing
themselves at the very beginning hi my name is blah-di-blah, hey my name is blah-di-blah. I always go up there and go, hey, hey everyone and I
get them to say hey back and I go, I'm so sorry. I know none of you wanna be here, frankly it sucks but I'm gonna do everything
I can to get you out of here but if I pick ya, it's because
I really like ya, sorry. And they all start laughing. And you immediately start
creating a rapport with them in a sort of genuine way not
in like a false pretense way. For example the defense lawyer he actually saw me doing that. and he was like ah I gotta
do something charming too. He goes up there and he goes, hey everyone, I'm from Nevada, Las Vegas but don't hold it against
me that the Raiders left. And everyone's like-- - Yeah, San Francisco
is not the right town to make that joke. - Exactly, he didn't
understand where he was. That's assuming a lot of things. If he'd made a Warriors reference that would have been a
really good thing to do. But he didn't get it, sort of relating to them in a real way and I think a lack of
sincerity is obvious. When someone's been
untruthful, you know it but when someone's being
real you mean like, oh, this guy's a real person. I like him and that's a
really important part. You don't win the case
by the jury liking you. Jury can hate you and
you can still win or lose but if they like you, it takes away a weapon of the defendant because when they attack
you in closing argument or they attack you in front of the jury the jury gets defensive. They go, what are you
doing, I like that guy. What are you doing, you can't attack him. That's actually happened
in all the trials. Monsanto always comes after me personally and it always backfires,
every single time. - Yeah, that's so huge
because a lot of lawyers and I probably put myself in this camp say that the trial itself is
won and lost on credibility. You have one opportunity to put your case out there and if the jury doesn't like you or the judge doesn't like you
it's gonna be a huge uphill battle and maybe credibility
won't win the case for you but if you lose your credibility
I think you're just done. There's no way to recover from that. Are there things that happened in the Johnson or Pilliod
case that you think bolstered your credibility
and the credibility of your witnesses that helped build that in
front of the judge and jury? - Yeah, there's a split within
the trial lawyer community. There's the group that
says never show weakness. Always be right, always be the
alpha dog in the courtroom. I don't agree with that at all, I think that's the terrible
approach particularly in a more dynamic and diverse environment like San Francisco. I think being real is way more important and so for example in the Pilliod case during my opening statement I actually said a fact that was wrong. I said that they had sprayed
over 1500 gallons of RoundUp and it's actually they'd
sprayed it for 1500 days but not 1500 gallons and I said that wrong and I realized that I had said that wrong and so the first witness I had that had to deal
with this issue, I go, doctor Sawyer, listen
during opening statement I told this jury that
they'd sprayed 1500 gallons, is that true? No it's not, what did I get wrong? Well, it's 1500 days,
thank you doctor Sawyer. I apologize ladies and gentlemen
I shouldn't have done that. I just say it, I own it and you do that and you
chose a level, a willingness to be wrong in front of a jury
I think it goes a long way because they know I'm
not trying to fool them that I care more about the truth than I do necessarily about being right and if you do that then it leads them to the world of okay, here's the evidence
I believe that evidence. Here's their evidence I see that evidence, I'm going with the guy I believe. And that's how you win. - God, that's such a great point because no case is ever gonna be perfect. You're going to have bad facts or you're gonna have bad law and you're going to
have to craft your case around those potential weaknesses and I love that story because you're turning a weakness into a strength. You made a misstatement
in your opening statement and if it just stayed there the other side is going
to have a transcript, they're gonna have the recordings and closing argument
they're gonna bring that out and just say you can't trust Mr. Wisner because he made this statement, - Exactly. - And instead you used that
as part of your case in chief you come out, you acknowledge the mistake and in the grand scheme of things it doesn't matter, it's not
like the jury is going to rely on this one fact forever but now you have shown that
you are a trustworthy person. - Exactly. - And even if it makes you
look stupid in the short-term that you did something wrong
or you had a misstatement or you made a flub, the jury knowing that they can trust you is probably more important
at the end of the day. - And you know where you see that the most is actually
in direct examination. Direct examinations are a show. You have your witness, you
know what they're gonna say. You've practiced the questions, you know what their opinions are, there's no surprise here but what I'll do, is I'll actually ask some
pretty harsh questions to my own witness, I'll go, hold on doctor, wait a second who are you to say the EPA is wrong? What gives you the right to say that this organization is wrong? And obviously, I've cleared this question with them beforehand. I'm not just dropping this in their lap. I play a sort of devil's
advocate in my direct and it creates so much credibility because there's somebody in that jury who had that exact question who's like wait a second,
who's this person? And you always have a great answer for example doctor Portier he was saying how the EPA didn't apply
their own guidelines to glyphosate and that's why they came to a different conclusion and I'm like, hold on doctor Portier. Who are you? Who are you to tell this jury that they're not following
the EPA guidelines? - This is your own witness. - This is my own witness. I'm like, come on. Who's this guy think he is? Then he goes, well Mr. Wisner
I wrote the guidelines. Okay, then I move on but that's a more
powerful way of getting to that question and answer that saying, so you wrote the guidelines, does that mean you can criticize, you know what I mean? Being a sort of
confrontational direct examiner can go a long way to sort of convincing your jury that you
really do have the guts. - I think that's a great segue into some of the
inaccuracies of what people see on TV and in movies. Obviously nobody's gonna wanna watch a movie that deals with literally years of just reading
documents and writing briefs. It's no surprise that
Hollywood will try and condense these things into a more palatable drama although you can come to LegalEagle to watch me talk about the accuracy or the lack there of in all
these TV shows and movies but given that, the trial
itself can last days or weeks and sometimes months for example how long was Johnson
and how long was Pilliod - The Johnson case was six weeks and the Pilliod case was nine weeks. - Okay, wow imagine being on
the jury for nine weeks having to be away from your family and your job. Obviously a lot of this is going to be shuffling papers,
entering things into evidence. How do you keep the jury's attention and make sure that they pay attention and get the really important facts even when you're dealing with sometimes really elaborate and
obscure scientific issues? - It's really interesting, I'd love to see how cases were tried before the film industry because it's really a
chicken and egg situation because everyone has seen so many movies where they see all this drama, they've seen "Law And Order" that's actually why I became a
lawyer I like "Law And Order" bet that's something that'll be fun. My job in many ways is to
create sort of cinematic drama in the courtroom when it
wouldn't naturally be there and so there's different
ways of doing that. I try like so when I'm cross examining I make it a point to storm
around the courtroom, throw documents, slam them on the ding, point, cajole and I do that not necessarily because
it's more convincing but because the jury goes form like ah, oh what's gonna happen next? They get into I'm watching a movie now this is what I thought trials were about. - Right, right. - It's funny, Hollywood has
actually created an onus on us to make it Hollywood when it
wouldn't naturally be that way. It comes in different
way and I think that, it comes in cross examination
'cause there's tension there. - Yeah. - It comes in openings,
it comes in closings. There's a really powerful thing
to do when you're on direct and it's something that very
few attorneys are willing to do again it goes to credibility but it's where I ask
the witness a question the answer is bad for me and I'll be like, so sir, based on all this
it clearly causes cancer and he's like, no I wouldn't say that. And the jury looks at me like, oh my God. What just happened? This has all gone sideways there and it makes it entertaining. You have to create those
dramas as much as you can and I'll be honest I did some
of that in the Pilliod case I think in a way, I
probably angered the judge. Did I tell you-- - Yeah, do tell. So you crossed a line
and made too much drama? - I took it a little far. It's a RoundUp case, it's pesticide and we actually had a
container of the RoundUp that Mr. and Mrs. Pilliod actually used on their properties and
we had cleaned it out. It was totally cleaned out
and I had expert on there and I pick it up and he's like, you should be wearing gloves and I'm like, oh, sure, put on gloves and I'm holding it and that wasn't planned that actually was a natural
sort of thing that occurred. And as I'm kind of
demonstrating how it gets used and it shows how it gets on
your leg and all that stuff, I realized that there was
a hydraulic pump on it and I was like, ah, look at that, it's still working. And so I pulled the
hydraulic pump and I said, you go like this and you spray it. And this mist came out. And it was right next to the jury and two of the jurors were like (shrieking) one juror was like wiping
his face all freaked out. And I was like, oh boy and the judge is like, Mr. Wisner, why don't you
put that away right now. I was like, yes judge, I put it away. And then one of the
jurors wrote in a question 'cause they can write questions
in California State Court and they said, what was in the container? And we had this long debate
with the counsel and the judge and the judge ultimately
gave a curative instruction which is disregard or whatever and the original curative
instruction that Monsanto wanted was to disregard everything
I said about the bottle. I was like, your honor
that's not really fair. There was lot of relevant testimony, shouldn't really just be
about what was in the bottle. She's like, okay fine. The jury comes back in and she goes, ladies and gentlemen I
just want you to know that there was only water in that bottle so it's perfectly safe. I probably pushed that a little too far. When I have a juror who's
worried about being sprayed with chemicals I've probably
taken the drama too far but they paid attention. - I mean that's an advance trial tactic. I love that sort of inside baseball that actual trial tactics have been changed because
of the public perception and again as any good
trial lawyer would do, you're turning potential disadvantage that people are bored from
watching a multi-day, multi-week trial and you're turning that on it's head by creating drama to punctuate the points that you're trying to make. In these particular cases do you think that other
attorneys are using the same opportunities that you are or do you think that you are outside the norm in being able to create that drama and use that emotional
punch when you need to? - I think that there's
some plaintiff lawyers, trial lawyers who are doing this on a regular basis very effectively. In fact I've learned
a lot of my techniques other than of course from you from when we were in college
and doing mock trial at UCLA but Mark Lanier he's probably considered the most preeminent trial lawyer in the world plaintiff side, and I've learned a lot of
these techniques from them. How to create interest
where other one's lacking. A really good example is depositions. We take these seven hours depositions. - Right. - You cannot play a seven
hour deposition to a jury. They will kill you, okay. They're so boring and there's so many legal,
technical questions I get asked. - The deposition being questions taking under oath outside of the trail itself. It's part of the discovery process where you're in a conference room. You're just asking questions, there's a stenographer
writing down the answers and sometimes things go wrong and you might have to call the judge but for the most part
the judge is not there. It's just you, the witness
and the posing counsel. Now they're limited to seven hours, before you could go much longer. The federal rules have
allowed you to go longer now. Yeah, these can be very,
very boring things. - Hey Legal Eagles, it's
Devon from the future. I just wanted to pop in real quick and let you know that
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guys using the promo code or using the link in the description. It really helps out this channel. But enough of all of that, back to the interview with a guy that's gonna take down Monsanto. - You know one of the things-- And obviously you wanna
play certain portions of it. In California because of the
subpoena limitation powers, I can't force a Monsanto witness in St. Louis to come testify
at my trial, I can't. I only can play videos from deposition. One of the things that we do
to make them more interesting is we use three cameras. We use one on the questioner,
one on the witness, we have a document camera or a whiteboard. We even have a camera on like
documents in another way, we can actually afford cameras and what we do is we film
all of them at the same time and we play it with the jury. It's like a television show. It goes to the question, it goes to the answer,
it goes to the question, it goes to the answer because they've done studies. People are used to watching
clips for 12 seconds at a time. - Right, right. - A screen changes every 12 seconds and if you don't have that, it gets boring and they fall asleep. We've had a lot of really good reactions causing that back and
worth in our depositions and they kinda become kind of more dramatic and kind of more fun and it goes to the document camera and it goes to the person and one of them actually
did where I was standing and the camera was following me as I was asking questions like full on. - You were standing in a deposition? - Yeah, they were filming me as I was walked around so it could look more authentic, become more interesting for the jury. - Wow, three cameras. Can you imagine someone being so vain as to use three cameras. - shocking, you would know. - Yeah. But I've actually never heard of that. That's a great tactic to know that some depositions are
gonna be important enough that you're going to show it to the jury in trial so you use a multi-cam
setup to be able to cut while they're saying the same thing, it's not breaking up the actual testimony but you're using it to keep
the attention of the jury, I mean you're thinking
so many steps ahead. - Whenever you're litigating, obviously different lawyers
have different approaches but at least within my firm
and at least personally, everything is towards the trial. Every question I ask is how is
this gonna be used at trial. Everything has to be. And if you do that and you do it right then you get to go to trial
and get $2 billion verdicts. That's how you do it and
so many lawyers are so busy so used to settling or so used to not actually being a trial lawyer. That's the big difference that you see today is that good trial lawyers
have everything about trial and how we're gonna present it. We do things, I'm pretty maniacal for
example like my table, a counselor table in front of a jury is meticulously organized. I have everything in the same spot because studies have shown that if you look more organized,
juries believe you more. Even you said nothing different except that you have an
organized desk, that's it. And it's amazing how little things like that can really cue
a jury in to being like, okay this guy is for real, I trust him. - Yeah. - It's hard because I'm so young, I don't have that much gray hair, I don't have the seasoned old person thing so I got to show that I know everything. Everyone in that jury has to believe that lawyer knows more than everybody and everyone believes him
and that's kind my goal. - That's so funny because - Do you remember in mock trial when we had the idea that we would get rid of all the paperwork
on the desk at all. And only have this like
this tiny 8 x 5 little sheet to scribble notes on it. That would be the only thing
we had at counsel table. I don't think that worked very well. You must have improved on that. - We have similar systems but, I'll tell you one thing
that we haven't changed, is I don't use a script. Every judge always comments, Mr. Wisner, you don't have any notes when you're cross examining. And I go absolutely not. And that's something I
learned at UCLA at mock trial. And it blows the jury away. I mean, blows them away cause they're this guy does it all in his head. This guys knows everything. - It's like what they see on TV. - Exactly. Now here is one trick, a technological trick. So when I'm doing my closing, I always use a PowerPoint, right? But what I do is I actually take a screen, I put it at the base of the where the bar is, between
the jury and the lawyers, and I have the next
slide that's gonna be up, so, I know what the
next slide is gonna be, as I'm doing it. They don't know that I
know it's the next slide. So I'm if I'm going through, and I'm like you know what,
that is exactly what he said. Boom, and all of the sudden it comes out and they're like, how does this guy know? He knows everything. It's just like he sees into the future and it's just cause it's right
there in front of my feet. - That's awesome. What do you think are the most pivotal parts of the trial, itself? Because a lot of it is monotonous. A lot of it is perfunctory. And some of it is duplicative. What do you think are the
parts of the trial itself where the trial is won or
lost in front of the jury? - I mean I think there is
really a couple of clear moments where it's make or break in the case. The first is Voir dire, jury selection, there's no question. I mean, you picked the wrong
jury you're gonna lose. You pick the right jury you can win, and you can lose a case
with voir dire very easily. I remember one, my first
case I ever tried actually Alexander in Virginia you actually came and saw it. - I came to your closing. - You came to my closing. I did the opening
statement and Mike Miller the same guy who actually
tried the Pilliod case with me, and the same guy who was
injured for the Johnson case, he actually came to my opening
statement in that trial. He went in, he saw the opening statement, comes back to the war
room and he goes Brent, I just want you to know that
was probably one of the best opening statements I've
ever seen in my life. And you're gonna lose. I said, what do you mean? He goes, look at your jury. And I looked at my jury
and there's nothing I can say to win that jury. And it was never gonna happen. It was not gonna, it was never I was never gonna win that trial. So you can make or break
the case in Voir dire. The next moment is opening statement. - Okay, - Because that's the first time
you're talking substantively about the case. And the jury is listening. And some people have
different theories about it. Some people say well, it has to be short. Punchy. Get in and out. I don't agree with that at all. If you're gonna make a jury give you billions of dollars you have to show them that you earned it. And you gotta show them everything. My opening statements run
between three and a half to four hours. They're very long. And then the next moment
is your first witness. Right? Because either they're
gonna listen to what what do you have to say, let's hear what your
witnesses have to say. You always bring your rock
star as your first witness. No question and that one
should be the mos polished the most clean. There should be no real
evidentiary issues, that's the one where you just hammer them. And the last and probably
the most important part, very often people think
it's closing argument but it's actually not. By the time you get to closing argument the jury's heard openings,
they've heard all the testimony, - Right, right. - I think they know what they're gonna go. Where they're going. They know what they think. It's their first witness. So, the defendant's first witness. And there is no question that that moment you have to obliterate them. You have to destroy that witness as hard and as aggressively as you can because if you can take
out their first witness they are done. And actually in Johnson
their first witness I dessimated and in Pilliad the first witness I dessimated. It clearly worked. - So in those two cases, who did Monsanto put up first? Was it the same person and
what were the strategies and tactics that you used to take down their first witness? - Well' it's kind of weird because every time I cross examine one of Monsanto's witnesses
we never see them again. I think they just quit. They go I'm not doing this anymore. This is not worth it. So in the Johnson case, their first witness was
this guy named Al-Khatib, He was a weeds scientist, and it was hilarious. - Weeds as in like the things
that grow in the yards. - Yeah, exactly. He wasn't like a weed scientist. - I'm in San Francisco so I had to ask. - No, I mean. That would've been funny. But no he's actually how to kill weeds. - Okay. People who smoke weed don't like this guy. Cause he kills weed. In any event, he was up there and it was really funny. He was wearing a suit with a purple tie. And it was this whole get up. And when I was cross examining him I go isn't it true that you told the world that this international
agency is actually very respected and we have
to consider what they say when they say something causes cancer. He's like I've never said that. I go really well, here is a news article. I pulled this up out of Google where he literally was saying that. And he's like I never
said that at any meeting I go oh really? I handed him the article. He looks at it. And he goes. - I go, you see that picture, yeah, that's you right? Yeah. See that tie right there? Yeah. That's the same tie
you're wearing right now. Isn't it? - No, no. - It was. - Experts buy more than one tie before you testify. - And he was just like this is my favorite tie. And I'm like, oh it looks good on you sir. But you did say that didn't you? He was like, yeah. And then at one point I was, you have a financial
interest in whether or not people spray weeds. He's like no I don't, I go, don't you have patent? I do? Yeah, I handed him a U.S. patent, under oath with his name I mean. I dessimated the guy. And then in the Johnson case their first witness was Doctor Bellow. And we had a moment, between when she first starts testifying and before she offers an opinion. They do something, they
lay your foundations. Are you an expert? Can you testify about things? And then there is a
short period of Voir dire and it's funny because in mock trial we always use that opportunity to attack the witness's credibility. - Right. - But during our trial
Monsanto didn't do that with a single one of our experts. - Ha. - They'd go, the judge would go, would you like to Voir dire,
and I'd say no your honor we rest on our papers. Okay and then we'd proceed. Here, the first one is would you voir dire and I'd go yes your honor. I would like to voir dire. And I walked to the defense counsel and I go you should sit down. This is gonna take a while. And I just took her apart. - So the voir dire process when it comes to an expert is to test their credentials
to make sure that they are capable of testifying. For some reason we use
the same french term. - Yeah. - That means to speak and to say, for both jury selection and for experts. I don't know why, but, so. That's pretty unusual because
when it comes to these multi million dollar pieces of litigation there is your daubert
motion and you've already tested a lot of the gatekeeping functions of the judge but, you still have an opportunity
to kind of put your chips on the table or try
and take their chips away from their expert opinion. - That's right. - So, it's not surprising
to me that most lawyers and probably most defense
layers are not going to be in the habit of
really taking advantage of voir dire but again, it's a great example of having an opportunity
and taking it in a way that I think most lawyers
are not going to do. - Yeah, and it also depends on the expert. I mean if they're really truly the most spectacularly qualified it's not worth your time. Like to give you some context. Juxtapositions. - Sure. - The first expert I
go through her resume, and her CV, I talk about her publications, and basically at the end of it, I kind of hammer her pretty
hard at the end of it, she goes yeah I guess really
determining what causes cancer isn't my expertise. That's what she testified. At that moment I stop, I look at the jury, don't look at the judge, I go, your honor, I'm looking at the jury, at this time I move to exclude
this witness's testimony in its entirety. She just admitted she's
not even an expert. And I'm not even looking at the judge, I'm looking at the jury, the jury is like smiling and laughing. Kind of giggling. Because they know I just took her apart. And the judge goes, denied Mr,. Wisner. You may proceed. So I sit down and so the first time he testifies about an actual opinion, she just admitted she's not an expert and the jury just thinks she's a joke. So that was the first witness. - The damage is done
regardless of whether the judge has excluded her testimony. - Exactly. - You've done the rhetorical damage whether or not is admitted
into evidence or not. - Precisely. - But then the next witness was actually my witness again. And he had a PhD from UCLA whatever and actually his opinions
weren't really that important but I figured whatever, so the judge goes, Mr.
Wisner would you like to voir dire and again
I go, yes your honor. And the jury is like oh
what's he gonna do this time. This is gonna be really intense. Cause last one was so brutal. I go up there and I go, Doctor Filling, I have a very important question from you Yeah, and I go, isn't UCLA the greatest University in the World? And he goes, yeah. Good, I went there for college. No questions your honor. I sat down. And the jury is laughing. The judge is laughing. Everyone is laughing. I've underscored how bad
the first witness was and then at the same time I've endeared myself to the court. - That's awesome. And also, it's good to get
that in as matter of law that UCLA is the best
university out there. Don't think it can be disrupted. - Often these experts are going to be really world class experts in their field. They're going to be talking about some kind of medical thing, or mathematical thing, or some science based thing that we often don't have
that kind of background. How do you go about preparing for cross examining some other size witness who has probably gone to
school and specialized in some part of science
that we have heard about for the purposes of this trial but we don't have that kind of background how do you go toe to toe with someone who is an expert in their filed? - During the Johnson case, they called this very well
respected toxicologist. Warren Foster to the stand. And he was from Canada. And he had this long gray ponytail. He's walking up to the
stand to get ready for his cross examination. The jury hasn't come in yet. I walk up to the stand and I go hey doctor can I ask you a quick question? Personal question. He's like, yeah what's up? And I go, the pony tail? Are you a hippie? Or do you ride Harley's? And he looks at me and he goes. I don't ride motorcycles. He's a hippie. And made me like the guy. And so my actual cross examination
of him was very pleasant. I was smiling. I was laughing. I was giggling. I wasn't mean. I was very very sort of jovial. And I got him to say things that he never in a million years would have said. His big argument was that
these tumors and these rodent studies, fell
within the historical range which is the percentage of mice that would get that tumor naturally. The background rate. - So they've been dosed with, roundup probably. - Glyphosatebut but yeah. - Glyphosate. So one of the active
ingredients in roundup, these mice have been doused with this some of them statistically
are gonna get cancer tumors. - This just by virtue of happenstance. - Right. - And so if you have
elevated rates of tumors it has to be above that
background rate or else you don't know if it's
just the background rate. And his whole arguments
was that they fell within that background rate. So what that rate was
was the issue, right? He was saying it's 12%, my
experts were saying it's 2%. And which one is it? So he goes up there, and I go well doctor, you'd agree with me sir, numbers they're important, right? And he goes, damn straight they are. Especially when it's the
number on my paycheck. And he didn't understand
what he was doing. He thought he was being
an everyman person. Relating to everyone. Cause everyone cares about
the number on their paycheck. But it really looked like he was saying make sure Monsanto pays me all the dollars they have to pay me to
give this testimony. And then I go through and it was amazing. It was a very Perry Mason moment. Very dramatic. He's talking about the
background rate and he says, it's 12% it's 12%. So you're saying the average is 12%. He goes yes. I go all right, let's look at it. So I put up the study that he said, and I go through all the numbers. And it's 1% percent it's 2% it's 1%, it's 1%, 1%, and there is like 40 numbers and they're all one or two. There is one of them that has 12%. And I go sir when you
said it was the average, I go I'm not the best at math, but look at how in the world
does that average to 12%? And he goes, picking up his glasses. He's reading it closer. There's like a long pause and he goes. Uh, yeah. Guess I'm just wrong. I go, doctor. It's a big man to admit it. No further questions. And I sat down. That was the last
question we asked the guy. And that was the last question they asked and they couldn't even rebuild him. It was like get him off the stand. That's how we kicked their butt. - Yeah, well. That's why you get tagged with
a $2 billion dollar verdict. - Yeah. - Alright, so inevitably
when you get one of these multi million dollar or
multi billion dollar verdicts you get these people who say, this is just a greedy plaintiff or a greedy plaintiff's attorney who's just looking for a payday. The science isn't there. I've used roundup my whole life. I've never contracted anything. What do you say to those people, especially since potentially they could be on your next jury? - I mean I have to say that the strongest piece of
evidence in our case was actually the science. Which is, I kind of
talked about this earlier. It's why we won. Scientistic on our jury,
if you can get them. Because they understand it. Look at the science of
roundup and Glyphosate. There is really three pillars. There is studies that
look at actual humans who've been exposed in the real world and says okay, all the
people who are spraying roundup do they get more cancer? That's the epidemiology. Then there is the sort
of middle pillar which is the sort of cellular
studies and that's like okay when we apply roundup to a human cell, what happens to the cell? And specifically, we're looking
for does it cause genetic damage because that's how
you cause the mutation that leads to cancer. And then the third pillar
is the animal studies. They have these laboratory
experiments where they study these animals
for their entire lifetimes and it's highly controlled and they see, here is some that aren't
exposed to any Glyphosate, here are some that are, and are the ones that are
being exposed to Glyphosate do they get more tumors? - Right. - And when you put all
the science together it's pretty overwhelming. For example, in the animal studies, and every single mouse
study that's been done, I think there's been six or seven of them, every single one there is elevated rates
of malignant lymphoma, and we're talking about lymphoma. You look at the cellular studies, it shows genetic damage in
human lymphocytes which is how yo get lymphoma. And when you look at the human data it shows that people who
are generally exposed to roundup have greater rates of lymphoma. Across the board it's pointing
in a specific direction now. One of the things that's really important and you spend a lot of time
educating the jury about this in voir dire and in your opening statement is the burden of proof. Cause if I had to prove something with absolute certainty
that it causes cancer it would be almost impossible. I mean that is a high high burden. But we just have to do
more likely than not. - The preponderance of the evidence. - Exactly. We always thought, you have
a feather weight scale right? And if one feather on one
side just slightly moves then we win. They way I like to tell a jury is, if you hear all the
evidence and you go well, I think it causes
cancer, but I'm not sure. Good, we win. That's all we need to do. I think it might cause cancer. That's it. And when you have that lower standard which is very different
than the criminal context but in the civil context, it's not that hard to prove. Now if we had to prove
with absolutely certainty I think that would be a
much different question. And I think very often people will go you're just making up signs or
you're not actually doing it or this is just plaintiff's lawyers inflaming the jury's emotions. They don't understand the
legal system and actually the juries are properly applying and weighing the evidence in this case. - Yeah that's the big difference
between the civil system that is built to compensate
victims for their damages versus the criminal system where the state has to prove a crime
beyond a reasonable doubt. Which is a very very high standard. - That's right. - You can't ever numerically compare reasonable doubt to
preponderance of the evidence but if it's 51% versus
49% in terms of certainty then the plaintiff should win if they prove 51%. And unfortunately I think a lot of people don't understand the difference
between the burden of proof in criminal law versus civil law. - And that's why we spend so much time educating the jury about that exact issue from day one, from voir
dire, or picking the jury. The other thing that's really complicated is there is actually a third burden. And that's for punitive damages right? You have to show that they
acted with deliberate disregard to human safety. You have to show, that
they acted with malice, and you have to show
that not by preponderance of the evidence but by clear
and convincing evidence, which is somewhere in the sort of scale. - Yeah somewhere between the two. - Exactly. - Between preponderance and
beyond reasonable doubt, we don't know where but it's
somewhere in between it. And I think for that one, you simply say, does
anyone here really believe that Monsanto wasn't trying
to make money knowing that it causes cancer? You know what yeah. Then we're done. Getting to the malice proof
is actually relatively easy. In all three juries
that has been unanimous in each case. - Yeah, wow that's incredible. It's also important to
educate the jury because the term malice in the
punitive damages standard is not what we would normally think of in terms of malice. It's not like someone at Monsanto was like I hate these people and I'm going to make them suffer. It's a term of art that has been defined by hundreds of pages of case law, and jury instructions and statutory law. So, you have to educate
the jury and sometimes you have to educate the judge at every step of the way. Because we're tried by a jury of our peers who are people that are not lawyers and they're not steeped in this every day like we are. So, the education point is huge. And I think you know it's something that when people get angry
about this kind of verdict people say oh, $2 billion
dollars, that's outrageous. This is what's wrong with the jury system. Those people don't understand
just how important the jury system is to the way we practice law. Because believe it or not, juries very often get it right. Sometimes they make mistakes, for sure, but they're more often right than wrong. And it's a method that's fair, and it's transparent, and it gives us confidence
that things are being adjudicated by our peers. And people who want to get away with, disregard the jury system, they're either defense lawyers, sorry Mr. Stone. - I've spent a lot of time
as a plaintiff's lawyer. - Okay. Either were defense lawyers
or they've never been in a situation where they
felt they needed recourse to the jury system
because if you're someone who is hurt, if you're
someone who's been harmed or really want to make a
change because you see like something is wrong in the world, taking your access to the jury system away is a real problem. - Yeah. - And I think that very often with tort reformers or the hot coffee people, and these people who think
oh these juries are crazy. When you really dig down deep you'll find out that, like
for example the hot coffee story is how we think. There is a great documentary about it. And I think it's really
important for people to take a step back and not
listen to that nonsense. And actually say, okay if I was hurt, what would I want? And if you were hurt you'd
want to have a jury too. - Yeah, so wait. So you're suggesting that Twitter
law degree is not the same as being a member of a
jury and watching a trial from start to finish for nine weeks and learning everything
from start to finish. I find that hard to believe. - Shocking. - Yeah. - Who would've ever though? - It's crazy. - Yeah. - Just reading one article
or maybe a Tweet storm about it is not the same as actually being on that jury and listening
to the facts on both sides for weeks at a time. - I'll tell you what. You take those people who are the trolls and the people who think they know better, you put them on one of my juries, in the seven weeks, they'll
be singing the same tune. Because unless they're
dishonest with themselves the evidence in this case is overwhelming and there is a reason why the juries have been unanimous so consistently. I mean these are people from
different walks of life, all over the state of California who keep coming to the same conclusion when they see the evidence. It's because it causes cancer
and it's because Monsanto knew it causes cancer and
they just didn't care. - So, in the Johnson case, you originally won $289 million dollars on behalf of the plaintiff. - That's right. - That was later chopped down
by the judge in briefing. But my understanding is that the jury on their own time wanted
to dispute with the judge chopping their own verdict down. Can you talk about what happened there? First of all is that true? Did the jury come back to support you? - It's unbelievable. And we had no role in trying
to get the jury there okay? So after the verdict, the
judge has post trial motions where she hears arguments
as to why maybe the verdict should be thrown out or the verdict should be reduced or whatever. And she had written a tentative ruling which is her initial thoughts of what she's thinking about doing and in her tentative she
had actually gotten rid of the punitives and said,
we have to have a new trial and she had basically said
I'm very seriously considering getting rid of the rest of the case basically trowing out the whole verdict. - And that's crazy because
judges rarely deviate from their tentative ruling. If they went to the trouble of actually writing down what
they think they want to do the odds of you being
able to convince them to go against that and here,
she was saying to get rid of all the punitive damages which is most of the $289 million- - That's right. - I mean the odds of being
able to talk judges down from that are maybe one in 10. - Yeah, probably less. So we get there and there is 10 of the jurors are there to hear the argument. They've read the tentative. And they're furious about
what the judge is doing. - This is how long after trial? - This is about six weeks. Almost six or seven weeks after the trial. - So 10 of the 12 jurors
came back a month and a half later after their
service was already done. - That's right. They have no reason to be there. They can just go on
living their marry lives. They've done their job. But they care so much about this case. They care so much about their verdict. They spent so much of
their life doing this, they want to see what happens. And so they all show up, and we have this argument
and it's a rough argument. Monsanto is accusing me of
all sorts of wrongdoing. And it goes back and forth. And that was on a Friday. That weekend those jurors go on a it's amazing they go on Twitter, they start talking to news reporters, they go on the local television. They write letters to
the judge telling her why she shouldn't do this. Why it's wrong. And the judge turned around her tentative. She kept the verdict. And she did reduce the
punitive damages down. It was a $289 million verdict. She reduced the whole
thing to about 80 million. So there was a big reduction but she gave something
called a remittitur. Which is sort of interesting. It's a complicated legal issue. Basically, the judge is reducing
it and if Monsanto pays it, the case is done. But if Monsanto appeals it, then we have the right
to appeal the reduction. So if we accept the remittitur we cannot appeal it after they pay it, but if. So it was sort of a trade off. And Monsanto obviously
wants to roll the dice they want to play a $200 million game of chicken on the appeal. And we feel pretty confident that were actually gonna get the money back so we'll see how it goes. But this jury cared so
much about this case. I've never seen a jury do that. It's just unheard of. And actually one of the jurors to this day, has been
going to the later trials and blogging about them. And commenting on it. He's now writing a book about it. And it's really cool how we got them so engaged as jurors that it's literally changed their lives. That jury service is pretty cool. - That's incredibly
and it's a testament to your skill as a trial attorney. I can sit here and swap
more stories with you and listen to your trial
stories probably for the rest of the day. Maybe we need to start
a podcast or something. Let me ask you a couple of
quick rapid fire questions. The first is, what is your favorite lawyer movie? - I have to say my favorite legal movie would have to be a few good men. - Okay. - That cross examination when Tom Cruise is I want answers. I want the truth, you
can't handle the truth. I love that so much,
completely inaccurate. But I love it so much. - I would be reminisced
especially on LegalEagle if I didn't ask you
what you think the most inaccurate pert of legal movies is? - It would be the time
between when the case starts and when the trial happens. It's always like a month or two months, or like a week, it's usually like five or six years. It just preposterous how fast things. It's like in Game of Thrones. How fast they can travel
between places in Westeros. It's just not possible. - Brent it's been an absolute
pleasure talking to you today. I could talk to you for
hours and I hope we'll get a chance to do a round two. And I guess I'll interview
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