Khurram’s Quorum – Ep 045: Joe Ahmad on sincerity over polish, and empathy and risk in trials

Khurram’s Quorum – Ep 045: Joe Ahmad on sincerity over polish, and empathy and risk in trials

Joe Ahmad is a trial lawyer who’s tried 100+ cases and built his entire approach around a simple premise: trials are a risk sport. If you need certainty, don’t go to trial.

In this conversation, Joe breaks down what separates persuasive advocates from “polished” advocates, and why the jury can sense the difference immediately. He shares specific stories (including a New Year’s Eve mistrial decision he’d never repeat) and practical techniques for dealing with bad facts, corporate narratives, and the emotional game of the courtroom.

Keep reading below for the full link to the episode and the full transcript of our conversation.

This connects to ideas I shared in Why I Prioritize Sleep and How I'm Improving It.

Top Insights

Below are the highlights of our conversation:

• The Necessity of Risk: Why being a great trial lawyer means being willing to lose, and why the “safety” of academia can actually hinder your ability to handle the unpredictable variables of a live trial.
• Authenticity Over Polish: Joe breaks down why juries are the ultimate “phony detectors” and explains how being centered and spontaneous builds far more credibility than a perfectly scripted, polished performance.
• Owning the “Bad Facts”: Strategic advice on why you should never ignore the weaknesses in your case, but instead frame them yourself to turn potential liabilities into winning themes.

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Full Transcript

Khurram Naik: Joe, glad to have you on the podcast. I’ve been really curious about having you on because I’ve observed the efficacy of your trial law firm, and I’m really curious to hear about your experiences here.

Joe Ahmad: Yeah, definitely. You know, like I’ve said in the past, I think the first thing you need to be successful is to be able to take risks. I think that’s something that, unfortunately, is not something that a lot of lawyers are used to, right? Because most lawyers were academically successful. I mean, the people we hire are very academically successful. They went to the best law schools, got the best grades, and they’re used to the notion where if I study enough, if I really perfect the material, I will do well, right? You don’t typically get ambushed on an exam. You don’t have people trying to undermine you like you do in a trial. And you don’t have the kind of variables when you’re going through academia as you do in trial.

And so, by definition, there is always a risk factor. It could be a witness crumbles or throws you some kind of a surprise. A judge can make a surprise ruling. Opposing counsel can, like I said, ambush you. And the jury can do the strangest things. So the first thing you have to recognize is that by definition, trials are about risk. If you’re not willing to take risk, if you’re not willing to go to trial because you may in fact lose, then you really can’t try any cases other than the slam dunk winners, right? And a lot of those, of course, by definition, never make it into a dispute that goes to trial. And even if they do, you probably don’t need a great lawyer for that, because the facts do matter, and if it’s a slam dunk, you just don’t need a great advocate.

So by definition, if you’re a great trial lawyer, you’re trying cases where there is at least some risk, and that’s why you got hired. And that means you can always lose no matter how great of a job you do, no matter how well you’re prepared. That is always a factor and you have to move forward. The other thing is—and this is part of the risk profile, and I’ve noticed this talking to juries afterwards—I would win a case and a jury was split six-six, and one juror just happens to make mention of a fact which I didn’t, and most people wouldn’t think is significant, and that turns the jury.

I’ll tell you about another case I had. I was trying a case—I remember it was on New Year’s Eve night. We were waiting for the jury. Yes, believe it or not, the judge kept everybody there until late at night New Year’s Eve. I was thinking this is unbelievable. And the jury came back late at night and said they were deadlocked, could not reach what was required to be a unanimous verdict. They had one holdout. Now, I had noticed that the other side had been kind of sitting close to where the jury was deliberating. And I was a plaintiff at the time. Normally, in retrospect, I should have just taken a non-unanimous verdict all day, right? That’s what I should have done. I did not.

And come to find out, I thought maybe the other side, who was willing to do a seven-to-one verdict and they were on the defense, I thought, well, normally that would be something the defendant would not agree to. They’re sitting by the jury, there must be a reason. So I said no. Turns out it was seven-to-one in my favor. Could have had a jury verdict in my favor. Said no, mistrial was declared, we had to try the whole case over again, and guess what happens the next time? I lose. Unanimous verdict against me. So, you know, you can even tell essentially the same story to a different jury and get a different result.

So like I said, I mean, there’s going to be risk that is very difficult to control. There’s going to be different things. You get one jury looks at it one way, another jury looks at it differently. Unfortunately—and this was in federal court—you don’t get a whole lot of time in most federal courts to do a voir dire, as we say in Texas. So you may not have a great sense of what the jury is about, but it can make all the difference in the world and it is awfully, awfully tough to predict. Even a case with the very same facts, same lawyer, same judge, everything. A change of jury can change everything. Same thing with, you know, you’re trying two cases with similar facts, not the same facts, different lawyers, different juries, different locations. Well, you know, you can’t just try the same case. You’ve got to adjust to the new facts, maybe the different locale, maybe opposing counsel’s different style. We did not—and this is the physician reimbursement case—and we won the first one, lost the second.

Khurram Naik: So going back to you talking about risk and how you said, hey, you know, I wouldn’t necessarily do that today. I wouldn’t make the same decision to seek a retrial today. What is it that you’re doing to assess risk differently today than you did let’s say 10 years ago?

Joe Ahmad: Well, I think first of all, you know, you can kind of let fear and paranoia get the best of you, right? Sometimes, you know, it is your initial intuition. You know, it’s like the old saying, your first intuition on a test is your best. And sometimes through fear or paranoia, you can overthink things, and that can be your enemy. And so, you know, a lot of times I will go with my first intuition. I have found that helpful on jury selection, voir dire as well. Sometimes with people, I mean, there’s, you know, if you do get a full voir dire, there can be cryptic comments that you can take one way or the other, right? They may have nothing to do with anything, they may actually be good for you, they could be interpreted bad for you. And sometimes, you know, you just overthink it to death and you end up making the wrong decision because of just, you know, paranoia—this person looked at me kind of funny, etc. And then you’ll hear from somebody else, oh don’t worry about that, they treated the other lawyer the same way. So, you know, even when you can get more data, it’s not necessarily good for you. Don’t let common sense and regular judgment go. Hang on to that and don’t overthink. Don’t let paranoia and fear get the best of you.

Khurram Naik: Yeah, that gets to something we’ve talked about that I’ve been curious about. There’s different themes about how you approach jury trials. So one theme is authenticity. So I’m sure we’ll unpack that a little more about what it means to be authentic, what are the different components of it. And there’s also the aspect of taking on bad facts and not explaining them away, and likewise, I’m sure you’ll explain that. And I’m curious about, you know, when it comes to say with bad facts, it seems to me that you often know the bad facts in advance—maybe bad facts surface later on, but maybe often you know the bad facts in advance. And so your approach is to say okay, I know the ways juries think about certain issues, so I need to align this bad fact with how they think about this in order to make a persuasive case that they’ll relate to. So you mentioned just now when you’re in the courtroom, you don’t want to overthink things. And you also mentioned before this idea that a lot of people that are at your firm or other top trial lawyers, you know, they are very academically competent, very skilled, and they’re used to being right in an academic context and of course that’s much more controlled, right? Like you said, a test isn’t just going to pull the rug underneath you really, that’s not typically how it’s done. So that leads to the question of, well then, the thinking part of a trial lawyer’s work—is the thinking mostly done outside the courtroom or in the courtroom? Like how do you think about the role of thinking, strategy, legal reasoning—when and where does that play out in the course of a trial lawyer’s work?

Joe Ahmad: Well, there’s lots to unpack there. Let me start off with just answering that last question. I think most of the thinking occurs outside of the courthouse, right? Yeah, you’re going to have to think on your feet during a trial, absolutely positively. But I think the real thinking goes on outside of the courthouse before trial ever begins, right? You have to come up with a theme, a framework of your case. And you know, keep in mind when I say don’t overthink things, you know, what I really mean is don’t overthink things for the wrong reason such as fear and paranoia, right?

When we talk about bad facts, I think a lot of people have the view that they’re afraid of the bad facts so they don’t want to talk about them, right? I’ve heard some people say, well, this is, you know, we’ve got our talking points, they’ve got their talking points and we’re going to go out there and throw them out there and our talking points are better than their talking points so we should win, right? But that’s not the way it works, unfortunately. The jury’s going to hear the bad facts and if you can’t come up with a theme that deals with the bad facts, then you’re going to lose in my opinion. If the jury is going to believe a fact which contradicts your theme, then by definition you cannot win. Right? And I think sometimes we forget that.

And by the way, I’ll say this, a lot of what I’ve learned is not just trying cases which, you know, I’ve tried over 100, but through reading on tools of persuasion, trial lawyers in the past. There really isn’t a lot of—I’ll be candid—I don’t know that there’s a lot of new thought out there in terms of advocacy. There might be some trends, you know, we have the “Reptile Theory” which I could talk about later. But a lot of the great advocacy has been taught for hundreds if not thousands of years. So a lot of what I talk about is really plagiarizing what people in the past have talked about.

But I think one of the things that you’ll hear from I think some great trial lawyers and some great trial teachers is, you know, find a way to make the bad fact at least work with your theme, right? So you want to talk about the bad facts. You don’t want to ignore them. And that is something that people don’t do because they’re afraid to, right? They don’t like it. It’s not comfortable. So the greatest thing you can do is thinking before a trial of a way to make that bad fact work for you. That’s ideal, okay? That is at the top of the pinnacle. Turn around that bad fact and make it work for you. Now, this goes a lot easier, one, if you can find a way for it to work for you, but also if you’re going first, right? If you’re going first and you can open first and your first introduction—the jury’s first introduction in fact to that bad fact is how you frame it—that’s an incredible advantage. And a lot of times you can do it on the defense, but it’s so much easier if you’re framing it for the first time for the jury to hear you, right? Because if it’s something the jury first hears from your mouth because you’re on the plaintiff’s side, you’re going first, and you make it work for your case, it doesn’t sound like a weakness.

Khurram Naik: What’s a time you did that?

Joe’s philosophy that trials are a risk sport reminded me of Priyanka Timblo, who left the safety of Paul Weiss for a five-year-old litigation boutique — and went on to win a $101 million verdict against Walmart.

Joe Ahmad: Well, I did this in, you know, many years ago we did a lot of harassment trials, sexual harassment trials for example. And in one case, the victim bought the harasser an expensive gift, a few thousand dollars, right? That was something that the defense couldn’t wait to mention. Except they went second. We went first. And you know, I had asked the client, and hadn’t really thought about it, but had asked the client, you know, why did you do this? And you know, the client had told me, well, you know, the harasser had given me a certain opportunity that paid me extra, a stipend, and it was worth a few thousand dollars.

You know, I think a lot of lawyers might have just kind of ignored that and not made that part of the case. But in this case, what I decided to do was make the gift work for us by telling the jury first that—go through all the harassment and tell the jury—as part of the harassment, the harasser would do certain favors which had a financial benefit, you know, basically as to pay for certain sexual or romantic favors, right? And as part of that, I said that this was so unwelcome that the victim actually went out right after this happened and bought an expensive gift for the harasser, costing about the same amount of money to say to the harasser, we are even, I don’t owe you anything, you can’t use this against me. So you can imagine when the other side gets up there and tries to use that fact, it has much less effect, if any, than it would have if we had not mentioned it. And we had a lot of other things to mention, of course. There was a lot of good evidence of harassment which certainly helped, right? And so in the context of all of that, we were able to make that work and win.

But you can’t do that, like I said, you can’t ignore something that the other side is going to basically try to bludgeon you with by simply ignoring it. You know, and I’ve heard lawyers say, well, you know, that’s their issue, okay, you know, we shouldn’t be talking about their issue. Going back to the talking points thing—we gotta talk about our talking points, never talk about their talking points. Does not work that way. Maybe it works that way in a debate; it does not work that way in trials.

Khurram Naik: You know, it’s interesting because I think another theme that I’m starting to pick up on is fear. So the emotional game of trial work. And so fear of loss is what leads to—you had shared before that there’s any number of trial lawyers who like to say, hey you know, I’ve never lost a trial. Well that’s because you’re really being very selective about the matters you take to trial and it shows that you’re not really taking the risks that you should be taking on, right? It’s kind of like Bernie Madoff—his returns are very stable month over month and people who had a lot of experience in finance said, hey that’s not how returns work, that’s just not real. So fear maybe is what leads people—fear of loss, fear of looking like you don’t know what you’re doing—might lead people to do that; they can’t take a punch. So another theme that you’ve shared that you know I’m hoping we’ll talk a little more about is authenticity, and you know, being authentic to jurors because juries—our legal system is that fact finders are assessing credibility. And so we have this intuition that if you take a handful of people and pool their judgment, they’re good at sizing up credibility in people. It’s just something intuitive like you were saying that you use when you’re sizing up jurors’ reactions. So it strikes me there might be a connection between fear, emotions, and authenticity. So if you are being authentic in how you present yourself, how you present your client, you’re way less likely to act out of fear because you’re centered and you’re balanced. I wonder is that a connection that you’ve drawn?

Joe Ahmad: Yeah, I mean I think clearly, right, the ability to be authentic is linked to having less fear, right? I think a lot of, for example, when I was a young lawyer, I couldn’t really be authentic because I was too afraid that if I was authentic, I would look like an idiot, right? You know? And so I would mimic the styles of other people who looked like they knew what they were doing, they were great trial lawyers, so I just adopted their style because I didn’t know, for example, that if I kind of let the jury see who I was, that they might think, well, you know, who is this idiot?

And you know, what’s interesting about this is, you know, it kind of goes back to the old, you know, textbooks on advocacy, right? I mean, you know, there is Plato’s Ethos, Logos, and Pathos. Well everybody likes to talk about Pathos and Logos—emotional appeal and logical appeal. Ethos is where the authenticity comes in a lot of times. I mean, it’s not just that. You know, Ethos is the credibility of the speaker meaning, you know, I know what I’m talking about. But it is also authenticity. If I look like I am willing to be transparent and what you see is what you get, that does build credibility, right? If I don’t trust the speaker—I may think they know a lot but I don’t really trust them to be honest—then you don’t really have that Ethos.

So you really want to build up Ethos through showing you know what you’re talking about, you know your facts, you are prepared, you’re a master of the case, you’re a master of the rules of evidence so you look like you know what you’re doing there, but also that you are authentic. That what the jury sees is the real you. That you can be trusted to tell the truth. But you can’t do that unless the jury thinks you’re real. Because the one thing that a jury can sniff out probably more than anything else is whether you’re being a phony or not. And they’ll forgive just about anything. You could be a jerk, you could be whatever you want to be, whatever you are, right? Imperfect as we all are. But if you’re phony, that’s the one thing they won’t forgive. They’ll forgive being a jerk, you know, because that’s human. But they just hate people who are fakes. And so to build up any credibility, you have to be authentic. To be authentic, you know, you have to be willing to take the risk and be unafraid to show the jury who you are, understanding that they may not like certain things but they will forgive just about anything other than not being authentic.

Khurram Naik: To the extent these are trade-offs—let’s say there’s sincerity with being very polished, you know, having tight answers for everything, well-rehearsed, whatever—why is it that sincerity beats out polish?

Joe Ahmad: Because I don’t think juries care about polish, right?

Khurram Naik: Why is that?

This idea of cutting through the noise and getting to what matters is something Rakesh Kilaru calls the “courage to cut” — ruthlessly simplifying trial arguments down to one or two core themes.

Joe Ahmad: Because ultimately I think jurors take their jobs very seriously, right? I mean, I think jurors, you know, I mean look, this is not something that most jurors do every day. This is probably the most direct interaction that a lot of jurors have with their government. They’re walking into this very formal courthouse. They’ve got a judge in a black robe, people advocating for their clients in suits. They’re dealing with a bailiff, they’ve probably gone through the jury assembly room wherever that is, and then they get these admonitions from God, the judge, as to what they’re going to do. And I think they come in there really wanting to reach the right result under the law as they are given.

So they’re not really there, you know, to pick out who’s more polished or anything like that. They’re there to get to the bottom of the truth under the law and get the answers right on the jury charge. So they’re trying to figure out what the truth is and they will ignore a lot of different styles in order to get the result that they think is the right result. I truly believe that. I mean, like I said, if you try enough cases, I think you will be more and more impressed about number one how smart a collective group of individuals is known as the jury, but also how much they want to get it right. And so, you know, this is different than picking out, well, this is the lawyer that I would hire, right? Versus well, you know, they’re a great lawyer but they have bad facts, right? I mean I’ve heard that before, you know. And when I lost sometimes I would hear that too and I’m thinking, well, maybe I wasn’t that great of a lawyer after all.

Khurram Naik: So with you talked about you know when you were starting out, there was trial lawyers you were modeling after and emulating their style. It was a little too far for you. It was just like okay this really isn’t how I am. And you discovered over time how you are. Can you describe your style today and then an inflection point where you really had a discovery about yourself in that way? Maybe it was a single trial, maybe some other kind of moment, that there was a before and after, then after that like okay I’m a little bit different now and I’m a little more authentic to who I am.

Joe Ahmad: Well, I think there’s a lot of things. Number one, my view is I’m not as polished as some speakers are. You know, I’m probably, you know, on the spectrum in terms of having ADD and that will come out, you know. But you know, like I said, part of it is just not being afraid. It’s going to come out probably no matter what, but as long as a jury senses that hey I’m, you know, kind of comfortable with who I am, I’m not trying to hide it, you know, that will mean they’re going to see all of that. Plus you’re spontaneous. You’re not constantly trying to calculate your words, maybe you’re a little bit more—and I hate to use this phrase but I think you’ll know what I mean—shooting from the hip almost, because it seems real as opposed to scripted.

And so even the clothes I wear. I would dress rather formally and, you know, blue—blue suit, navy blue suit, dark gray suit, boring blue or red tie and, you know, but that’s not how I dressed typically. Today I’ve got some attempt at Christmas gear on, I’m not sure how Christmassy I am, but you know, that’s normally the way I would dress. So everything I’ve approached, you know, is like that. My interactions with my staff is like my interactions in the office, right? I don’t treat them any differently in front of the jury than I treat them here. And you build, you know, you build a team of you know where the team sees that you’re being authentic with a jury, it helps other people, you know, be authentic as well. So I think it’s just, you know, letting go of all the fear about trying to be somebody else. Be yourself. You’re going to have flaws. I have flaws. I found most jurors don’t care.

Khurram Naik: Was there a moment, was there a trial or something like that, that really helped you discover authenticity for yourself?

Joe Ahmad: Well, you know, I think what it was was—and this is a little bit of you know kind of circuitous reasoning—but I think what kind of got me off of it was, you know, I was trying cases and winning them with kind of a very formal style. But they were rather easy cases, I didn’t know it at the time. But I remember arguing to a jury—this is an insurance defense case early in my career—and you know, I remember arguing to a jury that they should award a small amount of damages. And they came back and awarded less. Less than what I told them.

Okay? And I thought to myself, you know, I wasn’t—apparently I’ve been winning these cases but it’s not been based upon my credibility, right? You know, they don’t even believe me when I say you should award more to the plaintiff than they actually awarded. And I asked them afterwards and they were like, yeah, you know, you just didn’t seem like you wanted to call it like it was, but we saw the way it was and we didn’t think this plaintiff deserved hardly anything. And we figured you know you were just trying to be nice. I was kind of like, wow, okay.

And that’s kind of the moment where I was realized look, you know, they’re going to see through my attempt to be somebody else, right? And even though I think this is working because I’ve been mimicking the style, it’s, you know, and I had to face the sad fact of well, you know, these cases, of course I was an inexperienced lawyer at the time, I was trying cases at a very low hourly rate and I was winning, but I think I was winning because these are closer to the slam dunk cases—I just didn’t realize it.

And then when I, you know, like I said after that moment, I loosened up a lot, you know, on those types of cases, kept winning because they were still slam dunks. And that gave me the confidence to realize I’m not really going to hurt myself by being authentic. And then when it comes to much harder cases, it was clearly working much better because I would see other side what the other side would do and you know it was very tough for them when they weren’t authentic even when they had better facts. Some of the hardest lawyers that I’ve tried cases against, you know, and I’ve got one lawyer that I tried a case against right up to about the verdict and we settled it, but I will tell you, local lawyer in town named John Kim, you know, I mean he is number one very, very, very authentic. But man is he just off the wall. And jurors love it. They do. It is pretty zany. He wears—I’m not even sure I can call them shoes to court—you know, they’re some version of a colorful slipper. He is funny and irascible at the same time, you know, but you know he is as far out there as you will probably see with most lawyers. But again, that kind of radical authenticity is so effective, it almost doesn’t matter how far out there you are as long as that’s you. And that is him.

Khurram Naik: Can we go back to understanding—so I guess something else that’s interesting is how you think about juries. And so I am hearing a lot of respect you have for juries. And it seems to me that I’ve observed this pattern in several different areas in the practice of law: when someone doesn’t take something, some counterparty or some agent—lawyers are agents, you know there’s different kinds of agents—when people don’t take these kinds of players seriously and then they get poor outcomes, they attribute that not to themselves but to those agents or other players and say, oh well those players don’t know what they’re doing and so of course I’m getting bad outcomes. So I think you hear this from patent lawyers. Patent trials are often tried before juries when they involve damages, they do. And so you hear certain lawyers who speak not very highly of juries and what they can understand from a patent case. And it seems to me that if you take a jury seriously, if you take a counterparty seriously, whoever, you’re more likely to get better outcomes even if you’re in some sense adverse or there’s a conflict of interest, you know, principal-agent there’s a conflict of interest. So it seems to me that you know you get good outcomes if you’re taking these other actors seriously and get poor outcomes and you don’t learn from them because you keep on saying oh they’re just they don’t know what they’re doing. So I don’t know is that a pattern that you’ve observed because that’s what I’m hearing about the takeaways maybe other lawyers have had from similar circumstances.

Joe’s point about how trial experience transforms you reminds me of Jaimie Nawaday, who went from a terrified junior AUSA reading trial technique books on the subway to leading the Bank of America prosecution.

Joe Ahmad: Oh absolutely. I think you have to respect the jury’s ability and like I said it never fails to surprise me. You know part of the problem is say it’s a 12-person jury as we commonly have in state court. During the trial of course they can’t say a lot, right? They can’t say anything most of the time. So you know they’re kind of 12 blank people and you just kind of sense that they’re just literally potted plants listening, maybe listening, maybe not. Some of them are sleeping. And so it’s easy to kind of get or fail to appreciate the fact that yeah maybe one of them is sleeping and the rest are stone silent acting like they don’t care at all. But when you’re done and you talk to the jury afterwards you find out they picked up on so many things. You know incredible amount of things. And you know it’s so much so that I actually even on the plaintiff’s side I don’t like sitting next to the jury.

And I don’t like sitting next to the jury because like I said they notice everything and they particularly notice everything when you’re sitting right by them. And it is very hard in a trial not to keep a complete poker face. Particularly for my clients. It’s relatively easy for me and the lawyers, but my clients you know it’s really hard when they you know they have personal knowledge oftentimes of what’s going on and they have a lot of stake, a lot of emotion behind it. And juries can hate some of those reactions and they will notice. They’ll notice if your co-counsel is furiously scribbling stuff to you while you’re examining a witness and passing you furious notes, acting you know kind of desperate or something like that. I mean they just notice an incredible amount of things and it never fails to impress me.

Now having said that, yeah I think lawyers’ natural reaction upon losing a case is to say every time oh the jury didn’t get it, right? Jury didn’t get it. Now what I’ve learned is that number one, over time I have learned even in cases where I lost and I thought jury didn’t get it, the more I think—even sometimes it takes years—I realize where the jury was coming from. I realize that there were—the other side had a compelling story that I was just drinking too much of the Kool-Aid to see. But after the emotion and everything like that wears off it’s easier to see. The second thing is jurors can look at things—smart people can look at things—completely differently, right? And so that’s why you know I can try the same case twice and get a different outcome both with smart juries. Because you know in a lot of close cases, people look at things differently. I mean look at society around us and you will see how even smart people can look at the same thing very differently. Just a difference of perspective, maybe a difference in you know their history, their background, you know what they’ve done for work. I mean you know if you’re arguing a commercial case to somebody that has felt like they’ve been victimized by people that have breached contracts in their business, you know they’re going to bring that background. They’re not stupid but they’re going to bring that background. So you have to understand people with different backgrounds or even people sometimes with similar backgrounds but just have a different perspective and it’s not because they’re dumb, you know it’s not because they’re unintelligent. They just look at it differently. Smart people can look at the same facts differently, okay? And it’s not because they didn’t get it. So with those two things, you know I’ve been able to account frankly for virtually every jury verdict, good and bad, that I’ve seen. You know most of them I’ve won fortunately, but even the ones that I’ve lost I’ve been able to see how they got there with the passage of time.

Khurram Naik: With juries you mention that there’s patterns of worldviews, beliefs that they have that you have to account for when you’re presenting your story, when you’re presenting facts. And if your fact doesn’t align with one of those theses, principles, heuristics that they have, you’re at a loss. You’ve just got to frame things in a way that’s beneficial to their perspective and lens. So there’s patterns of these. And so you know you’ve done work on both plaintiff and defense side and you mentioned say corporations—there’s a pattern of view that about a pattern of view that that about the reasons why a corporation does things or how they operate. Can you talk about some of the patterns you’ve observed from juries?

Joe Ahmad: Yeah, so the first thing is that persuasive ability—I mean the ability to move somebody from point A to point B—is actually much harder than most lawyers think it is, right? You know if you think about the worldview of a lot of people, you know, and you think about for example the political world no matter which side you’re on, right? If you think about how easy it would be able to take somebody on the other side of the political spectrum and move them onto your side you realize, or how hard it would be to move you to the other side political spectrum, you realize you know certain things are just hard to move people on. Now most trials aren’t the political world, but if there is an entrenched worldview, you know you’re far better off trying to convince a jury of something they already believe—i.e. get your theme to fit into their view—than it is to convince them that their view is wrong to start off with.

So when it comes to corporations, there is a worldview particularly after COVID, right? I mean I think it probably existed to some extent among certain people but after COVID the view that corporations are not necessarily benevolent has skyrocketed. And what all jurors believe is—not all jurors but a lot of jurors believe—is they are motivated solely by profit. And if you’re trying to argue that your corporation did thing because it was the right thing to do, it often times—especially with big companies, right? The smaller the company the more credibility it can have or the more sympathy it can have. But you’re far better off trying to show that the company acted legally and in harmony with its profit interest and not to hide that, for example. Because there are some cases where the company’s profit motive and if the company acted in accordance with its profit motive actually demonstrates that they didn’t act illegally, right? Because sometimes for example you have to prove a certain motive for the company where their profit motive would not be consistent with that motive. Get behind that. Right? Don’t have to worry about the fact that a juror is going to think that your corporation is all about the money because many times that’s what they already believed anyway. So you might as well make that work for you. I think it’s very difficult to try to convince a jury that the corporation doesn’t.

The culture Joe has built at his trial boutique — where there’s no shame in losing — echoes what Randy Gaw built at Gaw Poe, a firm he started specifically because BigLaw wouldn’t give him first-chair trial work.

The second thing is, especially with bigger corporations, they believe they are far more organized than they actually are. I mean after representing many corporations, even the biggest corporations, you will find that they’re not always perfectly functioning organizations. They’re not always the well-oiled machine. And oftentimes left hand doesn’t know what the right hand is doing. You think they would have perfect documentation on everything; they don’t. However, jurors think that they do. They think that there’s going to be—if something important happened—there will be documentation. And so that can be helpful, it can be harmful, but it’s a reality. Jurors think that they’re far more organized and documenting everything than they actually do. And now if the juror has worked for a big corporation, a lot of times they will see that and recognize that because they’ve experienced it. But for a lot of jurors that haven’t—especially younger jurors that may have not had a lot of time in the workplace, not a lot of time with corporate America—I think they have views that jurors perhaps or corporations rather are you know very well-run organizations. And even if they are well-run, no corporation is perfect.

Khurram Naik: What case, what trial made you the most emotional—happy, sad, angry, any of that?

Joe Ahmad: Well, first of all, I think anytime you get the opportunity to take your case to a jury, generally speaking, that is—that should be a great moment, right? Because yeah I mean there’ll be a winner, loser, somebody that you know maybe or maybe both sides won’t be thrilled with the result. But the one thing you can say is you know they got their day in court, right? And you know I will tell you, I’ve had some cases where the client lost but they felt good about the result in the sense—not the result that the jury gave but the sense—that they got their day in court, they were heard. You know, because a lot of times when you settle cases you don’t really know what the outcome would have been and there’s always this kind of nagging doubt about what the real outcome would have been.

Now of course the real outcome can be highly variable as I mentioned before, but at least you would have an outcome. With a jury trial there is never that doubt. Right? So from my point of view, I think it’s always a good moment in time when you are trying a case and I think a lot of clients want that, right? A lot of clients want to go to trial. Now sometimes especially with larger companies, they just don’t—they’re very risk-averse and they don’t want to take that risk, that’s absolutely true. And you know if they do go to court, they are on edge. If they get an adverse impact or an adverse result, then yeah I mean they can be unhappy with it. But my experience is a good many appreciate the fact that they got their case to trial even even when they lose. And for those people, you know, and I try to talk to them about this, I think the lawyer’s job is to educate them on what we all know which is what we’ve talked about which is there is risk. Right? And if you do that, I think you have a much better chance of having a client happy with the outcome even if it’s a negative outcome. If you haven’t done that and you’ve kind of promised them a bed of roses and you get a bad result, yeah you’re going to have a problem.

Khurram Naik: What about for you though? What trial got you the most emotional—gratification, anger, any of it?

Joe Ahmad: You know I’m always on edge when a jury comes back. And you know so the one thing I will tell you is even cases that might seem the most mundane, you know, somebody cares about the outcome a lot. But even if that weren’t true, which it virtually you know is every time, I care, right? I’m on edge every single time. And so you know to be perfectly blunt, picking out one or two cases is somewhat difficult because I won’t say angry, don’t know that I’ve ever had that emotion, but when there is a negative result, yeah I mean there is at least disappointment, sadness every time there is a negative outcome. And then of course you know when you when you win, you’re almost always elated.

If I had to pick out a case, you know I guess there’s a recency bias so I’ll pick one that was within the last you know three years. You know we did a breach of contract case for a large physician group in town against a hospital where the practice group was operating. And you know basically the hospital had—our contention was—in a contract promised that they wouldn’t set up competing facilities, facilities that did the same kind of surgery. There was a dispute about that. But this was a large group of physicians that candidly had felt because you know they were economically—doctors do well, these doctors you know did well—but economically they were definitely the small player with the least amount of leverage vis-a-vis this large hospital group. So they felt that they had been taken advantage of for years by the hospital. So there was a lot of emotion there, right?

And when we were able to get a great outcome—I think it was the right outcome, was the right outcome we believed under the contract—but you know the sense of joy and satisfaction was immense. And I think what distinguishes this perhaps from other cases is number one the number of clients that were impacted because it was a large physician group, but also we had a great trial team. And that’s what made it a tremendous experience throughout the whole process. You know we had somebody who was running the case, one of my colleagues Paul Turkevich, who had done you know just an incredible job in terms of working up the case. You know and we had you know another partner of mine Kyle Pelker did an amazing job. We had an amazing appellate lawyer you know Kelsey White and you know we had a young associate Karina Sanchez and you know legal assistants did an amazing job. I wouldn’t have you know wouldn’t be here saying hey you know we got a great result had it not been for the efforts of everybody. And we had a great time doing it. So working with a great team, working with a large group, a great group as a client—that probably made it the one if I had to point one out, that would probably be it.

Khurram Naik: And you mentioned some you know more junior lawyers on your team. Final question for you. For lawyers that are at a firm like yours that are getting great trial work—there’s a number of other great boutiques that do trial work in Houston and elsewhere—so they’re getting great hands-on experience. That’s those are conditions in their favor that they’re setting themselves up well for their career. What is the biggest mistake those lawyers make while they’re going down that path?

Joe Ahmad: Well I think you know when we talk about risk, right? The I think what stops a lot of lawyers, especially young lawyers, in terms of trying cases is the fear of the impact it’ll have on them if they lose. And so the number one thing you ought to be thinking about is being part of a group, going to a firm where there’s no shame in losing. And I think at our firm you know I think we’ve built a culture where no you come back the next day from trial and everybody’s proud that you you know you did the good fight, right? We’ve all lost cases. So nobody takes it as a badge of dishonor when you’re willing to fight and you work very hard but you get an adverse outcome, right? That’s going to happen. And we as a firm are supportive of everybody that goes through the fight win or lose.

And I think when you’re if you want to be a trial lawyer and you you know you want to get the right training and experience to be a trial lawyer, it’s got to start with the culture. And it’s got to be a culture that is willing to let lawyers, young lawyers, try cases and lose, right? And I think we do both. You know I mentioned that case we have for the physician group. You know I mentioned for example some partners but also associates like Karina. My partner Kyle and Paul Turkevich were associates at the time. And Karina was a particularly junior associate. All of them had speaking roles during trial, all of them took witnesses during trial. And I think it’s very important and I think it really helped our team win the case when the jury got to see you know not just a well-functioning trial team but a group of people that really enjoyed working together and such and had confidence in each other. Confidence to the point where we had obviously younger so you would think less experienced lawyers that were getting trial experience. And it worked wonderfully. So you know you want to go to have that environment where the the firm has confidence in the young lawyers to try cases because they’ve given the training that they need to go out and get real responsibility but also is willing to allow those lawyers to take risks because you have to to become a trial lawyer.

Khurram Naik: Do you have time for a bonus question?

Joe Ahmad: Sure.

Khurram Naik: Okay you mentioned books on persuasion, you mentioned studying trial lawyers you said hey you know not much changes but there’s a canon that you can tap into. What’s an underrated book on persuasion and and how do you study trial lawyers of the past?

Joe Ahmad: Well I can tell you some books—I’ll give you the authors, right? Because I think you can pick out a number of different books by these authors. I’ll start with one that might be the most obscure is and he was a judge I believe in New Jersey named Herb Stern. Maybe a little bit unorthodox perhaps but that was probably the one that had the biggest impact on me as a young trial lawyer and I think his can be extraordinarily valuable some of the things that he said I think have stayed with me. I have encouraged other lawyers to read his books. Somebody even further back Moe Levine, great advocate. Read everything you you can from him. Jerry Spence another tremendous advocate. We talked about authenticity; this is a guy that wore you know hardcore Western gear and because that’s who he was. And he and he had a trial lawyers school. I didn’t go to it but people that went to it rave about it. But if you can read something from from him. You know there are many others. Now we have the the new Reptile Theory we have books you know by Keenan and Ball I think they’re great books especially if you’re on the plaintiff’s side. And so yeah I mean you know there are then you can go back to you know again the Greek philosophers talking about Pathos, Logos, and Ethos, right? You know they’ve got a lot of ancient books on advocacy. You can also read books on you know famous trials and see what the lawyers did in those cases.

And I remember Dick Miller who was the senior named partner of the first firm that I worked for, tremendous trial lawyer, tried the Pennzoil Texaco case by the way for Texaco and to talk about you know taking a loss you know he lost 11 billion which at the you know in the 80s was a lot of money, you know? So and came into the office the next day and said well just another day at the office. You know and got back on the saddle and worked on his next case, you know, continued to try cases after that. Great lawyer. But you know sometimes great lawyers lose like he did in that case. So he would read for example these Queen’s Bench old British trials and talk about how that that really helped him. So so yeah I mean there’s so much out there and if you want to be a great trial lawyer I think you want to read as many of these types of books as you can because outside of actually going to trial yourself, this is some of the most helpful stuff there is.

Khurram Naik: Well this episode was some of the most helpful stuff there is. This is some really great insights here Joe.

Joe Ahmad: Well thank you Khurram. Always a pleasure.