Trial War Stories - The Search for the Truth with Jay Kelley

What do you do when a critical piece of evidence is requested 26 times, you're told it doesn't exist, and then the truth finally emerges in the middle of a deposition?

In this episode of Trial War Stories, host Andy Goldwasser sits down with veteran trial lawyer Jay Kelley, Managing Partner at Elk + Elk, to unpack one of the most remarkable medical malpractice cases of his career. What began as the tragic death of a brilliant young college student from an unexpected cardiac arrest during a hospital stay evolved into a years-long search for answers, accountability, and the truth hidden behind seemingly flawless medical records.

Jay shares how a routine review of hospital records raised suspicions, why a "perfect" chart can sometimes be more concerning than an imperfect one, and how a single moment during a deposition changed the entire trajectory of the case. After repeated requests for a missing crash cart log were denied, Jay uncovered evidence that revealed a critical equipment failure during a life-saving resuscitation attempt—evidence that had never been documented in the medical record.

The conversation explores the art of discovery, the importance of reading witnesses as closely as you read documents, and how trial lawyers can uncover the truth when institutions insist there is nothing more to find. Jay also provides a masterclass in cross-examination, demonstrating how patience, preparation, and careful questioning can expose inconsistencies and shift the momentum of a trial.

This episode is packed with practical lessons for trial lawyers, medical malpractice attorneys, personal injury lawyers, and anyone interested in how great litigators uncover the facts that change cases—and sometimes change lives.

Topics Covered:

• Medical malpractice and hospital negligence
• Discovering missing evidence in litigation
• The importance of crash cart logs and emergency preparedness
• Depositions and reading witness behavior
• Cross-examination strategy
• Trial advocacy and courtroom storytelling
• Hospital policies and institutional accountability
• Navigating statutory damage caps
• Identifying responsible parties in complex litigation
• The pursuit of truth through discovery and trial

One of the most powerful lessons from this episode is that great trial lawyers don't force facts to fit a theory—they follow the evidence wherever it leads. Sometimes the smallest inconsistency opens the door to the most important truth.

If you enjoy Trial War Stories, subscribe, leave a review, and share this episode with a colleague. Have a case where persistence uncovered the evidence everyone else missed? We'd love to hear your story.

For more information about Andy Goldwasser and C&G Law, visit https://www.c-g-law.com/.

Transcript

SPEAKER_01 0:00

What happens when you ask for a critical piece of evidence 26 times? You're told that it doesn't exist, and then everything changes at trial. Every trial lawyer has that one case, the one that pushed them to the edge, changed how they practiced, or kept them up at night. This is Trial War Stories. And I'm your host, Andy Goldwasser. I sit down with great trial lawyers to unpack unforgettable cases, the strategy, the chaos, the pressure, and the moments that turn the tide beyond the transcripts and verdicts. And now to the show. My guest today is Jay Kelly. And Jay, I think you know how excited I am to have you here. I've been bugging you and begging you to come on the show. So thanks for coming here today. Welcome.

SPEAKER_00 0:52

I'm excited to hang around with you and talk about wherever you take this podcast.

SPEAKER_01 0:56

Well, here's where I want to take this podcast. So you had an interesting path in your career. You started out as a prosecutor, I believe, and then you went and did medical malpractice defense work, tried a ton of cases in the prosecutor's office, tried a ton of cases as a med male defense lawyer. And for the last several, how long have you been doing plaintiff's work now? It's been a while.

SPEAKER_00 1:16

Since 2002.

SPEAKER_01 1:18

Since 2002, you've been doing plaintiff's work at Elk and Elk, where you're now the managing partner. So over that spectrum, you've tried a lot of cases. And part of the fun that I have with this whole podcast is talking to guys like you and saying, hey, what do you want to talk about? You gave me two really cool cases, shared with me the facts of both cases, and I stole one of the two. I said, let's talk about this one rather than the other. And I want to explain why I selected the one that I did, and then I want to hear about the case. So I selected the case that we're going to talk about today because it talks, it's a story about how you get to the truth, and it's a lesson on how you get there. And you did such a phenomenal job in the courtroom, in that trial, to get to the truth in a really risky move. So I want to talk about that. Tell us about the case, what happened, share with us.

SPEAKER_00 2:17

So it's an interesting case, just in the fact that it's not from Ohio. It's from New Jersey, Newark, New Jersey, which is Essex County. And I was contacted by a family out there through a common friend. He ran a steel company, the father, and their daughter had passed away. And uh when you talk about every child is a light, this child was a valedictorian of her high school. She was a straight A student at Rutgers. She was, by all measures, every parent's hope and dream. She had a condition called pylonephritis, which is an infection around the kidney. Is that just a UTI? Is that what that means? No, this is more on the outside of the kidney, but it it can start from one. The she had been in the hospital, she was on a regular floor, but pylonephritis can kind of wax and wane with antibiotics. And the infection can be cystic, meaning kind of encapsulated. So it can be a little hard for the antibiotics to kind of overwhelm it and take, you know, provide the full assist. While she was in the hospital, Jamie had an unwitnessed arrest. And so that's a cardiac arrest. And when they came in, they then began what we would call, you know, advanced, you know, life support.

SPEAKER_01 3:33

Is this just a heart attack, Jay? Is that when you say cardiac arrest? Is that what you mean?

SPEAKER_00 3:37

Yeah. So most of the time for people like Jamie with an infection or sepsis and those types of things, it's going to be an arrhythmia, meaning an abnormal heartbeat that leads to the heart either going into an abnormal rhythm or asystole, which is obviously no rhythm. For her, she went into an abnormal rhythm. All right. So had that ever happened to her before? No, no. She was completely portrait of health. And but for this condition, there was nothing else limiting her, you know, future in any way, shape, or form. So when they came in, and I'm going to tell you the story first from the records. According to the medical records, they followed the algorithm for advanced life support almost perfectly with one critical mistake. And there's a medication you can give epinephrine, and you can also shock the paddles that we've all seen on TV, which, you know, clear. So, but you only shock certain rhythms. She had a shockable rhythm. And but the shock didn't happen in the right sequence, which was something our experts were critical of. The chart screamed of oddities to me, though. Because look, put yourself in the care provider's shoes for a moment. What are they looking at? They're looking at an unwitnessed arrest. This is an emergency. This is an unpredicted emergency. It's like a pop quiz on steroids. And the chart was perfect. When I say perfect, I mean eyes dotted, teeth crossed, on the lines, no cross-offs. The progress note from the resident was meticulous.

SPEAKER_01 5:24

Yeah, you would think it would be chaotic in the moment.

SPEAKER_00 5:28

You would think there would at least be something. And so we started the case in New Jersey, and I co-counseled with a friend of mine. You know, his name is Lou Devoto. He's now, I'm so old, one of my friends is retired, but an incredible trial lawyer himself. And you need local counsel when you travel. So, yeah, I told Lou what our theory was, and he told me about a very unique thing in New Jersey. They have caps. Every state has different laws. New Jersey's caps for hospitals require you to name the individual responsible to not have a cap. If you can't identify the hospital employee by name, there's a $250,000 cap, which is obviously woefully inadequate for a law such as this. So trying to figure out how the order went and everything of the sort required us to do a deep dive into this resuscitation. So we asked for something called the crash cart log. And they told us there is no crash cart log. Crash cart log is what I would say verification of preparation. So if you think it's a way that you could walk by a cart, like for a podcast like this, an equipment cart, and someone has it sealed and signed that says everything you need to film today's podcast is here. You can rely on me.

SPEAKER_01 6:54

Makes sense. They literally will push in a cart when someone's in having this type of event, and there'll be a log of what's used from that particular cart.

SPEAKER_00 7:05

Yeah. And a log that says the cart's ready to go.

SPEAKER_01 7:09

Is that typically part of a medical record, Jay? Or do is this something that's not part of the record that you have to request separately?

SPEAKER_00 7:15

Aaron Powell It's not part of the record, but you can typically get it separately. It's a routine document as part of the hospital and the care, but it just shows the advanced preparation that is required. And honestly, they had a policy for it too.

SPEAKER_01 7:28

Aaron Powell And was that important for you really for two reasons? One, because that really forms the malpractice that you're talking about, the step-by-step guide, but also separately to identify the person that was the ultimately responsible so that you can name that individual to get around that $250,000 cap?

SPEAKER_00 7:47

Aaron Powell It started as I thought critical for proving the case. What was the deviation from the standard of care, et cetera? It later became a central piece in identifying the individual and this $250,000 cap. Okay. So, and that's the thing. Look, your title for today I know is search, you know, is one of the key words. You do have to follow the evidence. And I think sometimes as lawyers, we make the mistake of trying to drive the evidence instead of following it.

SPEAKER_01 8:21

It's such a good lesson, and I want to dive into that more, but why don't you continue with the what the case itself?

SPEAKER_00 8:28

So what happens is, you know, Jamie obviously passes away from the resuscitation. And as we're doing this workup, the case initially starts with one attorney representing everybody. And the one attorney, kind of a East Coast, bombastic kind of fellow, and you know, but likable. And so the case is going on, and it just doesn't make sense to me. No one can explain the why of why did they go out of order? Because we have this, we have a cart, we know they ultimately gave a shock, like 10 minutes into the resuscitation. And so we're taking the depot of a resident who's obviously a physician in training. And I'm a big believer when I take a depot, I don't take my eyes off of a witness. Like I will literally almost uncomfortably stare at them because I think the answer is in the answer sometimes. It can be looking at their lawyer, it can be a pause, it can be a facial expression. And in the exchange, when I got to the epinephrine versus the paddle, and I said, I go, you know, following the algorithm, they should have shocked first. And he you saw freeze. And I said, I literally commented in the chart, in the depot, I was like, Why did you freeze? What happened? And he said, He goes, We didn't have gel pads. That was the first time you heard that. And it was not in the record, it was not anywhere to be found. There was no recording of the fact that the reason it was out of order was because the crash cart they pulled in didn't have the equipment necessary to facilitate this defibrillation. And you asked that question, Jay, because you just got the feel that there was something more there. No one could provide me a solid explanation medically for why they went out of order. And when I confronted him with it, there was a clear freeze. And I don't like to bring up kids or anything of the sort or minimize the significance of these cases, but you can tell when someone's nervous. You can tell when someone is afraid. And in that moment, I was like, there is something here.

SPEAKER_01 10:58

And good for the resident for being truthful and candidate about uh candid about that. I I have to digress for one moment, then I'll go right back. But just a quick side question. Though there are moments like what you just described that happen somewhat regularly in deposition, if with the more experienced lawyers who aren't afraid to ask those types of questions. Because of those moments, do you typically do your depositions in person or by Zoom?

SPEAKER_00 11:25

So I am more of an in-person depot.

SPEAKER_01 11:29

Aaron Powell I I took that from your earlier response, which was I like to look the witness in the eye, I like to feel the moment, I like to feel the scenario, the situation.

SPEAKER_00 11:37

Aaron Powell I do. I like to feel the room, I like to see what the breaks feel like. I like to kind of be there. I like to have tangible things to pass back and forth, maybe even have them make notes on. But I'm a little old school that way. I still wear a tie to depots, I still, you know, I dress up. I had some mentors who would have killed me if I showed up casual.

SPEAKER_01 11:56

Good for good for you. Well, I'm sorry to have digressed. Why don't you go back to the story of the case?

SPEAKER_00 12:00

Yeah. So, and he was probably the third witness we deposed in the case, and everybody else had held the line. So he acknowledges that there weren't jail pads, and then he describes the unfortunate chaos that ensues. So they have no jail pads. So they actually sent someone for a second crash cart on a different floor. That crash cart also did not have jail pads. So we now the clock is ticking. And in a resuscitation, minutes matter. I know that sounds like a cliche, but time matters. And that's when the second crash cart was empty. That's when they ultimately gave the epinephrine first. They broke protocol because one of the quivers that they were supposed to have available to them wasn't there. Sure. The correct one. Sure. And once, kind of like a Jenga tower, once he's once he decided to tell the truth, he then shared that he was encouraged not to put that into the note, that that wasn't medically necessary. And but it was important for him to write the correct order, but not the reason why.

SPEAKER_01 13:13

Wow. That's amazing. That is amazing. And it it really, to me, what's what what I'm struggling with is I hear you tell this story. If I'm looking at that case from when it first comes in the door and I'm screening the case and I'm looking at this pristine medical record, I'm not thinking at all about what you just described. I did was there even reluctance to take this case when it first came in? Because you really can't get there without doing what you did.

SPEAKER_00 13:42

So we could get there because of the epinephrine, because the fact they didn't follow the protocol, and because the fact there was a delay in the shock. Because just reading the record, I could clearly say they knew they should have shocked, and they delayed it by almost 10 minutes. But you had no idea about the gel pad. I had no idea why.

SPEAKER_01 14:00

And once once you got to that why, did that change your theory of the case?

SPEAKER_00 14:06

So it literally changed this case from a legal malpractice case to a statutory case. And I felt like that day and that moment. What do you mean by that? Just so what I should say is that day and that moment with a resident, I could then meet my promise that I give to every client, which is if you come to me, I'm gonna tell you an honest answer as to what happened. No lawyer can guarantee you an outcome. But every person deserves to know what happened. And in a malpractice case, you often don't. So I knew I could now go to Mr. and Mrs. Cell and I could say, This is what happened. This is there was a delay. This is why. Amazing. And so that part, that part, and honestly, there's a pride in that to me. Because for a lot of families, that means as much as any sort of you know, financial outcome. But now the nuances of the law become relevant. And that cap that we talked about, which is just a limitation for not being able to identify the person, becomes more critical. We know they've told us they don't have a crash cart log. I have to find the person who stocked the crash cart.

SPEAKER_01 15:31

Good luck with that.

SPEAKER_00 15:33

Yeah. And we're talking years after the fact, and how do we chase this person? Otherwise, this incredible life, you know, is capped at $250,000. Right. So other tells start to manifest. One lawyer representing everybody becomes three lawyers representing different people, which to a lawyer in a case means we now have people who have different defenses than each other. The potential for finger pointing and division is there. Divide and conquer has always worked. History is not never wrong on that. So we then start pushing for the crash cart. By the time we get to the jury trial, we have had either hearings or formal requests 26 times to verify that the crash cart does not exist. The crash cart log. And they keep telling us no, no, no. Well, what's interesting in their policy, there was some phraseology that included the purpose of the crash cart log, which was to ensure that this was they were ready in the event of an unpredictable emergency. And so we dug into that. And I said, you know what? If the purpose of that is to be there, and they say there was never a crash cart log, and that's what they told me. I said, then the nurse who was the supervisor had a duty to verify it. The charged nurse, if she can't walk by, and it was a female in this case, cannot walk by and say, we're ready for our shift, she has a duty to check.

SPEAKER_01 17:22

And that's such a great theory because now you could identify the nurse and get around your $250,000 limitation.

SPEAKER_00 17:30

Argument to show that somebody had a duty of preparation and a policy that showed the entire purpose was to prepare for the foreseeable but unpredictable event of an arrest. Absolutely. So depots and things like that are all different in other states. So a little more of the trial comes at you live speed in New Jersey. And so we are now in Newark, you know, in what I will call a foreign land of sorts from a legal standpoint. And the trial begins. The two defense attorneys that are primary tell a story that is six minutes different. And minutes, as you said earlier, matter. Minutes matter. So were you expecting that going into trial? No, I wasn't expecting the difference. I you tend to see in our business defendants line up. Right. They understand that a division typically only helps the plaintiff. And as much as we would all like to believe the rosy nature that everybody just goes in and tells their exact truth, people make sure their defenses line up. Trevor Burrus, Jr. And just for clarification, Jay, who were the actual defendants in the case? So the hospital was a defendant, individually Mountainside Hospital. And then there were also individuals within the hospital, some care providers, residents, you know, and nurses.

SPEAKER_01 19:04

So when you say there were three lawyers for the defense, one for the hospital, and then there were two lawyers for different providers.

SPEAKER_00 19:12

Trevor Burrus, Jr. For different individuals. Some had multiple individuals, but all of a sudden the team had three different huddles, I would say.

SPEAKER_01 19:22

And not only do they have different huddles, during opening statement, you learn that their timing is different.

SPEAKER_00 19:27

Aaron Powell They give a different timeline. Okay. So we still know it's it's a bit of a Hail Mary to, you know, put this on the nurse. We felt good about our liability case, but liability must attach to the individual.

SPEAKER_01 19:43

So your focus is really on this nurse supervisor who you claimed sort of late in the case that she had a duty to make sure that the cart was properly stocked and that there was a log in place so that everything can be identified. Aaron Powell Yep.

SPEAKER_00 19:58

And her deposition preceded the residents. So we didn't have the benefit of the resident story. So did you even ask her about the cart or the We asked her about the crash carton policies and things, but not the fact that there were no jail pads. Okay. So you're going into this trial a little bit blind. Trevor Burrus, Jr. On that issue, we can't go back and get a second depot.

SPEAKER_01 20:19

Okay.

SPEAKER_00 20:20

So they're convinced on the defense that we're trying to argue that it's an altered record. And I kept saying, we are not. We are arguing what you've told us is true, that that log never existed. I was like, we're accepting what you've told us as true, and that is our case. It never existed. So they have a duty to, she had a duty to check. That's right. So this woman gets on the stand, and my co-counsel Lou says to me before we go, he's like, How long do you think you're going to be? Because obviously scheduling is a big thing. And I said, I go, somewhere between 10 minutes and two hours. Oh, okay. Pretty big spread. I said, I go, Oh, we're going to see where she goes. I go, I have a lot of excitement for where I think I might be able to get her to go. So my very first question to her, and look, her being in a case isn't normal for her either. So the fact that she had one lawyer and then she gets moved to a second lawyer when they split is confusing for her.

SPEAKER_01 21:26

She's nervous like all witnesses are. They're dealing with the deaf. They're nurses.

SPEAKER_00 21:33

They're nice people. They're caregivers. And but the lawyer who defended her is no longer her lawyer. It's now a different lawyer for trial. So she got up, and I just, my very first line of questioning was I said to the nurse, I said, Can you tell me? I go, We've heard you were paying close attention. I was looking at you. And she verified she was. I said, I go, Mr. Mara said one timeline, Mr. Kokas said. A different timeline. I said, who's right? It's such a great question. And you have nothing to, by the way, nothing to lose. I don't care what she picks because she's pointing out that one of them's wrong. That's right. And you're illuminating that for the jury, too, by the way. So she sits and it was probably 30 to 45 seconds, but it felt like an hour and 15 minutes that she sat thinking. And she said, she goes, I think Coca. And I was like, you do understand that's not your lawyer. And I was like, Do you want to rethink about it? She said, okay. And she literally rethinks about it. And then she goes, Nope, I'm going with Coca. There you go. And so I go to the board and I write, I'm going with Coca. Okay. And she's now like kind of reeling a little bit as she's up there. And I think, in all candor, I think this is a wonderful human being who for the first time realized she was in the crosshairs. And so for the next two hours, she proceeded to change her testimony, change the medical records to comport with the defense she wanted to assert, not the defense that was in the courtroom. And we did something interesting that my friend still makes fun of me for is I didn't yell at her when she wanted to change her testimony. I didn't call her a liar when she said she wanted to change her testimony. She asked if she could, and I literally made a sarcastic comment. Wait a minute.

SPEAKER_01 23:46

She literally asked you during her examination if she could change her testimony.

SPEAKER_00 23:52

So the the story that she picked of the two lawyers did not line up with her testimony. It lined up with the other lawyer's testimony. And so I said, I go, I go, you know, that doesn't line up with what you told me. And she said, she goes, am I allowed to change? And totally calm, straight face, I said, you are absolutely allowed to change your sworn testimony. I go, but here's the deal. I go, I want the ladies and gentlemen jury to know one day you said one thing under oath, the other day you said something different. So they can compare the fact that you had your own inconsistencies. I was like, is that fair? She goes, that's fair. And the judge literally put his head down. You could see he was like smiling and couldn't believe he was agreeing.

SPEAKER_01 24:39

I mean, it's such a great impeachment way to set up impeachment.

SPEAKER_00 24:44

I Andy, I said to her, I go, the only rule that I have is so the jury knows, can you raise your hand whenever you want to change your sworn testimony so they can keep track. I love this. And you walked her into impeachment. More than 10 times. She had to raise her hand to change a medical record or her testimony. And with each one, you saw in her face the realization of what happened to Jamie. And that what happened to Jamie was now potentially going to land in her lap. And I'm sitting there and I'm saying, I think I have an individual potentially. So Essex County, you have to leave the courtrooms at lunch. And the judge comes out, Judge Carey, and he says, he goes, I need everyone to clear the courtroom. We all are packing our stuff to leave, and the nurse is still in the witness stand. And she is literally not speaking, not responding. And the lawyers have to go get her and take her out. She visibly upset? She looks somewhere between upset and the deepest thought you could ever imagine. I don't want to say catatonic in a negative way, but definitely was not aware of the things going on in front of her. So we leave, we're at lunch. And the thing I think people skip about this, because look, you talk war stories and things like that. And there are some great legal things that happen. But the one thing I'll encourage everyone to remember is it happened in front of someone's mom and dad. And they watched this kind of looseness with facts and looseness with testimony about their daughter who they lost. And it was an incredibly powerful lunch talking to them, seeing the reality, the emotions, the anger, the grief, the sadness. It was overwhelming. You know what I mean? And as a lawyer, you're in the fight and you're talking about next witness and thinking, wow, that was one of the better crosses I've ever done in my life. And then you realize, oh my gosh, this is their life. Right. This isn't their job. Right. And I think it's important in our business that we always remember Jay Kelly has never won a case. He's never lost a case. Clients win cases and clients lose cases. We just have the privilege of standing up for someone else.

SPEAKER_01 27:18

It's what I love about what we do so much, Jay, because what we do matters a lot. And I mean, you know this because you worked with my father as a defense lawyer. I said, How do you do this? How do you work for these insurance companies? And he would always tell me, it's not the insurance company. He's representing a physician or a caregiver, and that's what mattered to him. And so it doesn't matter whether you're on plaintiff side or defense side. The point is what we do is important and it matters to the people that we represent. And this story is phenomenal because we're getting there. We get to the truth.

SPEAKER_00 28:00

So So that afternoon, there's objections growing, and you've been in trials enough to know that when someone thinks they're circling the verdict drain, they start to layer in appellate issues and things of the sort. So the one defense lawyer is objecting constantly, and the judge very calmly says, I'd like everybody to leave. The jury to leave the courtroom early for your afternoon break. They leave, and the judge looks at the defense lawyer and he's like, Do you know why I'm overruling your motion? And he goes, No. He goes, because you're getting killed. He goes, I will not say this in front of the jury. He goes, but you're getting killed. And he looked at the nurse and said her name. And he's like, he goes, You got killed today. I've never seen anything like it. Wow. And he's like, he goes, I have no idea why we're in a courtroom for this case. He goes, but you're getting killed. So the jury comes back in. It's Thursday. Friday is a motion day in those courts out there. So we leave. I fly back to Cleveland Sunday night at 11 o'clock at night, a little after. We get an email, and sure enough, it's the crash cart locks. No. They found it. They found not they. The nurse. The nurse found it. So what happened? So we go in on Monday morning, and we now have the name of the person who actually missed.

SPEAKER_01 29:41

Because the nurse didn't want to be the person responsible. So wait, wait, wait, wait. Back up for a second. Was the nurse already off the stand at the time? She was off the stand. Her examination's completed at this point.

SPEAKER_00 29:53

She was off the stand. She was actually back at the table when the judge made the comment about you got killed. And we leave feeling like we have now gotten over the hump of we now have a triable, provable theory of an individual who made the mistake. Right. So when this honestly, it's kind of a Scooby-Doo moment, like you know, the end of a trial, like new fact. Right. When it shows up, the question now becomes what do we do with it? We now know the name of the individual who did not put gel pads in that cart. How did the nurse find this log all of a sudden? So we walk in, and the defense lawyers were great. They tried to act like it was completely irrelevant and no big deal.

unknown 30:46

Right.

SPEAKER_01 30:47

Meanwhile, you would ask for it 26 times throughout the discovery in the case.

SPEAKER_00 30:55

Probably before the judge was like, no, this is a big deal. So I asked the question because we don't know who found it yet. We just know that it now exists. So I asked, I was like, I go, well, who found it? And they tell us it's the nurse. And I said, I go, Your Honor, I go, in all candor outside the hearing of the jury, I'd like to put her back on. I want to find out how she found it. So the judge at this point is fully vested, and he says, I agree. He wants to know, probably, too. So she hops back on the witness stand this time outside the hearing of the jury. And there was some anger and sarcasm in my tone, I will confess.

SPEAKER_01 31:42

But the jury, just so we when you say outside the presence of the jury, the jury's not aware of the presentation. They're not in the room for this one.

SPEAKER_00 31:48

I want to make sure our listeners understood that. But the mom and dad are. And so when I said, I was like, I understand you found this. She goes, I did. And I said, Why'd you look? And she literally responded, she goes, Because of what you did to me on Thursday. And I was like, What did I do? She goes, You made me appear responsible for her death, and I don't believe I am. And and I said, So what did you do? Did you like leave the building and drive to mountainside and you know start the search? Because we didn't get this till Sunday night at 11 o'clock. Right. So I assume you looked all week and she goes, No. I said, When did you go? She goes, the next morning. I said, Did you get there at seven, assemble a team and search? She goes, Nope. And I said, What did you do? She goes, we had a joint commission meeting. It went till about 11. I go, then did you search? She goes, I did. I go with the team. She goes, by myself. It's like, how long did it take you to find it? She said, five to ten minutes. And at this point, you can see the judge is now leaning, everybody. And I can still remember sitting in front of her and being like, I go, how did you know where to look? She goes, Well, there's a file room. And I go, so it was in the file room. And I go, and how did you know which cabinet or location to go to? Because everything's not electronic back then. And she was like, she goes, Well, I went to her name. And I go, I go, this wasn't like behind the couch or misfiled or something of the sort. She's like, no, I go, it was in a file, in a cabinet, labeled appropriately exactly where it was supposed to be, and you found it in five to ten minutes. And she's like, yes.

SPEAKER_01 33:40

As a defense lawyer, Jay, I that had to be hard for them to hear. Whether they were responsible for it, or they have to cover for their client who was responsible for it. Either way, it's a bad position to be in.

SPEAKER_00 33:57

So then it was all sorts of legal challenges now come up. We asked to continue the trial and just wave the caps because the person whose name is on that sheet isn't named as a defendant. Right. He's not there.

SPEAKER_01 34:12

Which would have to be a really hard thing for you to do because not only do you have the time, but you have the money invested, and the case, frankly, is going in really nicely for you. Trevor Burrus, Jr.

SPEAKER_00 34:21

Could not have been going in better. The So what happens is we ask the judge, we're like, can we continue with witnesses while we try to put together something to brief a cap waiver or something of the sort? And the judge says, you know, I'll give you through this morning. So and the judge says outright, he goes, if you ask for a mistrial, you're gonna grant it. We're gonna make them pay your expenses. And so he was very definitely pro we had suffered an injustice. Over the break, over the lunch hour, the judge approached us and said, Is there any number that settles this case? And I said, I was like, our demand. And so the lawyers left, they came back and they offered like 50% of the demand. I was like, it's our demand. And they left, offered 60, came back. And the judge is now sitting there with us. They come back at 70, 90, and the judge is truly enjoying, I think, like without saying that he's rooting for us, you could you felt the he thought the right thing was happening. I'm sure.

SPEAKER_01 35:40

And he's telegraphing that probably to the other side, saying look, they were gonna have to pay our expenses, and now we have the person.

SPEAKER_00 35:47

Right. So they don't want to come back either.

SPEAKER_01 35:49

Right. You're getting around the cap now for sure.

SPEAKER_00 35:51

It's just when. Exactly. And so one of my favorite parts of the whole thing, and my partner in the trial, Lou Devoto, gets credit for this. The last thing they came in, they were like, okay, we'll pay your full demand. We just want confidentiality. And I won't say the exact word, but it starts with an F. And Lou told they could that word off. I love it. He and he's just looked. He goes, He goes, that just happened in open court. The mom and dad sat and listened to it. They're going to tell that story to anyone they want. Good for them. And so we ultimately agreed to confidentiality on the number, but not the facts. So that's why we can sit and talk about amazing. You know, the facts, you know, all day long. But what I've never seen happen before is the utilization of defenses and layers. First, it was what was in the medical record. Then it's like what wasn't produced. Then it was what was produced. Then it was how can we use that? And when you talk about a search or a persistence or following, I mean, that was the thing. This was an onion. This was layers, and this required a persistence, but honestly, it required listening.

SPEAKER_01 37:10

Yeah, it's it's what an incredible story. We usually like to pick cases where there's a jury verdict at the end, but this one I just it was, it's so fascinating on so many levels. There are one thing for you.

SPEAKER_00 37:26

I have one thing that I can say there's but wait, there's more from an unusual standpoint. As we left, the Essex County Courthouse is two buildings, and there's a street in the middle of the two. When we walked out of building number one, the first person outside the door waiting for us was the nurse. Oh no. And, you know, ethically, I still don't know that it's right to talk to an opposing person's witness. Right. But she stood and she was like, it's important that you guys know that I didn't know any of this. I didn't this wasn't me. And I was like, I I just said I can't talk to you.

SPEAKER_01 38:05

And she's She wanted you to say, we we know it's not you. Don't worry about it.

SPEAKER_00 38:12

And it very well might not have been her. Right. Of course. But it's not my thing to say. And if I'm 100% honest, like the case was pending for three years. There was a lot of 10-minute windows people could have gone and looked, including her. Of course. But she, Andy, followed us through the parking lot up to the second floor of the parking garage, and was literally, as we backed out, still looking into my window and saying, It's important that you know I had nothing to do with this. Amazing. And we drove away. And look, I believe her. I think she was probably a or is a lovely nurse and a wonderful human being. But she either didn't pay attention to the process or didn't care enough until she was in the crosshairs. I'll always be grateful that she finally provided them the truth because a verdict would have been nice, but those parents deserve to hear what really happened. Yeah.

SPEAKER_01 39:09

Such a great story, Jay. Thank you for sharing that. Uh, I I have a couple of follow-ups before I let you go. One of the things that I like doing on this podcast is trying to give advice and teach takeaway takeaways from this podcast. And I think there's really two takeaways in the story that you just told. One is be a good listener, and that is so important as a trial lawyer. The second one, though, is a much more difficult thing to do. And I have tr I struggle with this a lot, and that is what you did. And that's to let a witness know that it's okay if their story doesn't line up with the defense, right? And that takes a special way of doing that. How do you do that? Do you just do it by feel, to your personality, through experience?

SPEAKER_00 40:02

So look, I think sincerity is the greatest trait any lawyer can have. You have to be believable. And if you're none of us are good enough actors to make it up. I think the uniqueness of my career, starting as a prosecutor in the felony division, then I did do some felony criminal defense cases, then obviously the civil defense, and then civil plaintiff. I think you start to see different lenses and different perspectives. And as a prosecutor or criminal lawyer, you use facts and common sense a lot more. As a civil lawyer, you use science and depositions and exhibits a little more. Makes sense. And I think that sometimes criminal could use a little more paper, and civil could use a little more common sense. So I learned from a mentor that I have in the prosecutor's office, his name is Fred Zook, being in a trial with him, just a little bit about tempo and letting the witness go a little bit, like having a little bit of comfort and confidence in the process, and that there's other things you can communicate beyond the answer. So look, I I think I found my voice. My voice is different than the other great lawyers that you've had on here, you know, voices, and my voice isn't for every trial, but you know, I'm a big instinct person. Yeah. And I do believe there's certain questions that the answer doesn't matter as long as you're willing to go either way. It takes a ton of preparation, but it's fun when it happens.

SPEAKER_01 41:48

Well, you have a great personality too. I mean, to be able to, you are a great listener, you're a great communicator, you're very comforting and calming personality, and that works really, really well for you. Another takeaway is something that you also taught me that you learned from your former boss in the prosecutor's office, and I'm going to try to quote you. I wrote it down because I don't want to misquote this, and then maybe you could put it into perspective for our listeners. You said to me, a verdict can make a fool look like a hero, and a hero look like a fool. What do you mean by that?

SPEAKER_00 42:24

So I got sworn in, and about a week into my career, I tried my first case by myself because of just the way things fell in a prosecutor's office. And much to my delight, I was victorious. And it was an arson case. Still remember it well. And then the next two trials also won. Could not be feeling better about myself. You're a junior, you had just you'd been out six months or whatever it was. I I had been sworn in by the time I tried my third jury trial, a third felony jury trial, it was January, and I was sworn in in the end of November. That's incre that's incredible.

SPEAKER_01 43:09

You had no idea what you were doing. And you just went in and tried these cases and got three great results.

SPEAKER_00 43:16

The the fourth trial was a really complicated trial, and it was stealing copper from the city. I won't say the defendant's name so he to keep his privacy. But he uh it was such an interesting trial because when the prosecuting witness got off the stand, they were stealing copper was our allegation. When the prosecuting witness got off the stand, he actually hugged the defendant in front of the jury and said, We're all rooting for you. Oh my god, this is not what I planned. Right. But we lost the trial. And so the Fred took me out to dinner, and he just told me something that has literally changed me as a trial lawyer. And it was that quote that a verdict can make a hero feel like a fool or a Fool feel like a hero. And he told me, he said, he goes, you know, I watched all of your trials. He goes, your first one that you won, you weren't good. Right. You were a fool and became a hero. Yeah, the verdict just you can judge yourself by the outcome or your performance. Right. And he goes, This last trial, he goes, You tried a great case. He said, but you didn't win. And so what he told me is he said, he goes, look, he goes, you don't pick the facts. He said, but you as a lawyer have to predict what's going to happen in the trial. How's it going to go in? Did you try your best case? What did you miss? And he goes, the best time to do that is before the verdict. So now, the moment the judge is done reading jury instructions, I go back. Now I do it on my phone. I used to do it on a piece of paper. And I kind of assess the trial. Did I anticipate things the way that I thought? Did it go the way that I thought it should? What do I think I missed? What do I think, you know, went perfectly for us? And then the verdict is the verdict. And I want to win for my clients. I want to see my clients win every trial. But that kind of mold reminds me, you know what I mean, that don't let the verdict decide if you did a good job or not.

SPEAKER_01 45:21

Yeah. So you don't take it maybe as personally. Not the verdict. Not the verdict. But you still feel it because of your client.

SPEAKER_00 45:28

Oh, I look, I I have lost six civil trials in my career, and I say those names every day in the shower. Those are the ones you isn't it amazing.

SPEAKER_01 45:37

It's the cases that we lose that we remember. It's the ones that we win that we typically forget.

SPEAKER_00 45:42

The uh I think I've tried, I tried to do the math the other day. I'm either right at or write around a hundred trials. And but those six on the daily, they're set and they remind me to go work, do your best, things of this order. And two of the ones we lost, I think might have been the best trial work we've ever done.

SPEAKER_01 46:05

Credible. You know what I mean? Credible. Jay, I I I did want to ask you one last question, though. You're your Elk and Elk, they do a lot of advertising within the really across Ohio. Um when you started, and you're now the managing partner, so you're making executive level decisions, policy decisions at the firm. When you started with Elk and Elk, I remember this because you left Reminger and went to Elk, you weren't involved in any of the advertising. Can you tell us sort of why that was and maybe why there was a change?

SPEAKER_00 46:43

So it was actually in my contract that they could not utilize me in any advertising or marketing.

SPEAKER_01 46:50

Was that because you were opposed to advertising conceptually for lawyers, or you just didn't want to appear in the advertising, or maybe a combination of both?

SPEAKER_00 46:58

Aaron Powell, I think a combination. I think that I wasn't sure about how I felt about advertising as a lawyer. I think I didn't want to give someone else control of my name. I'm very protective of, you know, my name. It's a family name. And, you know, I mean, I also had younger kids, and I didn't know that I wanted my kids to have a parent who was visible in the public in any way, shape, or form. So I was very, very protective of that. Over the years, and I say this to people now with some regularity, so I'll say it here. Everybody advertises now. Whether it is a podcast, a web page, a you know, pay-per-click advertising, every single YouTube videos, everybody's advertising is just how. And as I say to people with some great regularity, people are critical of lawyers who advertise, but banks, insurance companies, hospitals, it's the biggest and the best. And I think one of the reasons is I think we as a group, sadly to me, sometimes diminish who we are and what we do to the expense of who we do it for. So, you know, where I became more comfortable is as I moved into a position of, you know, equity and control, where I had control and I felt like I could elevate the messaging. I feel like it's an opportunity to not only benefit our firm, but hopefully every firm by showing that an Elk and Elk ad or a university hospital ad or a Huntington Bank ad, they don't look different from a quality, a seriousness. I mean, I don't like like I don't like the bad ads. I and I don't want my name or my face associated with them. I'm sure there's people who don't like our ads, but I think at least, you know, whether it's the pluses, us, the positivity, and showing how many people work on a case, you know, in every client every day. My hope is at least people see it as equal credibility.

SPEAKER_01 49:21

Yeah, and for those of you who who know you and your leadership, I mean, John O'Neill, Phil Curry, and the list goes on of great, not only lawyers, but great people at your firm, your your advertising slogan now really fits who you are. I mean, I know from personal experience how hard your law firm works for the benefit of your clients every day. And that so I think it's a great message to send to people. But I was curious as to why the change, right? I mean, I I do what you do. You are a competitor of mine, and here I am talking to you about this and having this podcast, and I consider you a good friend. I I I do that because I believe in our profession, and I think advertising is important, but it has to be done right. So I'm I'm glad you do what you do.

SPEAKER_00 50:17

Trevor Burrus, Jr. At the end of the day, every client's gonna have a lawyer stand up on their behalf in a courtroom. And the perceptions that we create through how we market, how we talk about ourselves to the world, has the potential to impact everyone. So I do believe that when we advertise for ourselves, we also have to do something that adds value to our profession. Because look, I only lawyers I get mad at are the people who run around and say they don't like the practice of law. I love it. I think it's the greatest job in the world. It's stressful, it's a fight, but it's been an incredibly rewarding career so far.

SPEAKER_01 50:57

I could not agree with you more. Jay, I had so much fun on this podcast. This was a great conversation. Thank you for sharing. Thank you for doing this. I really appreciate it.

SPEAKER_00 51:05

Thanks for inviting me and keep doing it. It's nice to have someone celebrate our profession. Thanks, Jay.