A Winning Team

Two legal professionals embraced the idea of being partners in their case work, and have been rewarded with courtroom victories and a balanced working relationship.

By Debra Levy Martinelli

Jul/Aug 2002 Issue

In a perfect world, all attorney-paralegal teams would enjoy the mutual respect and admiration shared by Mark Werbner and Lisa Stewart. Werbner, a Dallas lawyer specializing in complex commercial litigation and white-collar criminal litigation, and Stewart, a paralegal with whom he has worked for more than five years on a number of big cases, also share this philosophy: Prepare thoroughly and thoughtfully, prepare each case in anticipation of trial, don’t be afraid of losing and – most of all – recognize that, to do the best job possible for the client, you can’t do it alone.

That philosophy has been a driving force behind their victories in recent years. In 2001, Werbner prevailed in a $454.5 million tortuous interference and breach of contract suit against retail computer giant CompUSA Inc., and a $30 million wrongful death action against Columbia Medical Center of Las Colinas Inc., an affiliated hospital of Nashville’s HCA The Healthcare Company, one of the country’s largest health care organizations.

Stewart played a pivotal role in both of those cases and many others.

“A lot of high energy litigators are very controlling. A combination of eight to 10 partners and associates doesn’t lead to what my concept of a team is,” said Werbner, a partner in the 10-member Dallas boutique firm of Sayles, Lidji & Werbner. “We have a small firm and have only one to three people on a case. I’d rather have a tight team and surrender some control. I don’t need to do, and can’t efficiently do, everything.” He said he believes paralegals should be extremely involved in the case from the get-go. “The lawyer needs to invest in the paralegal,” he said. “You have them attend depositions and mock trials with you. They shouldn’t always be in the office. If the paralegal on the trial team isn’t included in the whole case development, his or her contribution is limited. It’s a huge waste of a valuable resource.”

A Partner In Full

“Mark is a good delegator,” said Stewart, who joined the firm shortly before Werbner came on board as a partner. “I do a lot more than other paralegals are allowed to do. Sometimes he gives me work I don’t think I can do. But he thinks I can, so I try. He recognizes that a paralegal who knows the case can make a bigger contribution.”

The two have a healthy respect and admiration for one another’s abilities and character. “He is an outstanding trial attorney and I greatly respect his abilities,” Stewart said. “He’s very thorough. He thinks about the jury from day one. It’s fun to work with someone who is so awesome at what he does.”

Werbner is equally eloquent when describing some of Stewart’s many strengths: mature, competent, good sense of people, great poise and personality, and both sympathetic and empathetic with clients. “I have so much trust and confidence in her, which comes from our many battles together,” he said.

Today, the two work together in a practice that is 80 percent plaintiff’s work and 20 percent defense work, with some white-collar criminal defense thrown in as well.

“I have a broad, eclectic practice that presents challenges for both the lawyer and the legal assistant,” he said. “I’m certified in criminal defense law, and Lisa and I have tried federal criminal cases, tax fraud and bank fraud cases. I like high stakes, high profile cases. Lisa thrives on it, too. It’s stimulating to learn new areas because it keeps the practice fresh. I learned early in my legal career that if you have good litigation skills and you aren’t afraid of the courtroom, you can try anything.”

They are often brought into a case just to help try it. In both the CompUSA and the Columbia Hospital cases, they became part of the legal team just two months before trial. In such instances, Werbner finds Stewart even more valuable.

“She is my most dependable, right-hand person, especially in cases in which we’re coming in just for trial and I don’t have a history with the members of the other team,” he said. “Lisa really is a full partner of the trial team.”

Stewart, who holds a bachelor’s degree in home economics with an emphasis in real estate, was an interior designer when she obtained her paralegal certificate from Southern Methodist University in the mid-1980s. “The economy wasn’t good and interior design was something people could do without,” she explained. “But I knew law was here to stay.”

As she worked on her certificate, she also worked in the office of her father, a plaintiff’s personal injury attorney in Dallas. It was there that she began to develop her preference for representing the underdog.

“The cases that mean the most to me are those in which the big man tries to step on the little man but the little man prevails,” she said.

“My father being a plaintiff’s attorney and [me] working in his office had something to do with that. The widow in the Columbia Hospital case [we worked on], who has become a friend, was devastated by the loss of her husband. Her getting justice makes it all worth it.”

A Trusted Liaison

When Werbner is less able to give clients the time they need before and during trial, Stewart provides the hand-holding, the comforting and the explaining. In the wrongful death case against Columbia Hospital, she became good friends with the client, who was the widow of the decedent.

“It was a real struggle for her to relive the tragedy of her husband’s death,” Werbner said. “Lisa had great empathy and sympathy for her. And while the relationship between Lisa and the client was more poignant in that case, it is typical of her in all cases. [Lisa is] very talented with clients because of her character and personality. She deals equally well with CEOs, general counsels of Fortune 500 companies and widows in personal injury cases. It’s a key quality in a senior legal assistant to be able to interact comfortably with all types of clients.”

Stewart said she thinks of herself as the liaison between Werbner and the clients. “I really like getting to know them. Mark doesn’t always have time to answer their questions or just talk about their day. But I can take the time with them that he may not be able to. I can call and see how they’re doing,” she said. “We do what we do best, and I’m good at that. I feel for people in their situations and they sense that. And, for whatever reason, they’ll tell me things they might not tell the lawyer directly. I understood and could empathize with the woman who had lost her husband. I’m not saying Mark didn’t, but it’s different. His job is to focus on the legal issues. Mine, in part, is to develop close contacts with our clients.”

Both Werbner and Stewart said they believe a paralegal is most valuable when he or she knows the case inside and out. “I study the documents and the facts,” Stewart said. “I examine different aspects of the case and look at everything from different angles. I use Internet research as a tool to understand the case better. In a product liability case involving a piece of equipment, I researched that piece of equipment and modifications that have been made to it. I looked at how similar equipment is designed and made by its manufacturer’s competitors. I also searched for lawsuits and bad publicity associated with the product.

“Discovery is good, but the other side may not tell you what you need to know. The Internet is a great tool for [helping with] that.”

She said she isn’t afraid to ask a lot of questions about factual and legal issues. “Because Mark is so busy, I’ll start with the associate on the case,” Stewart explained.

“If the associate doesn’t know the answer, I go to Mark,” Stewart said. “He may say, ‘That’s a good question, call the client’ or may have other ideas on how to pursue it. Or, he may say, ‘It’s not important,’ and tell me to move on to something else.

“My job is to keep the case moving. If I don’t speak up with an idea, it might get passed over. Sometimes I feel stupid, but other times the reaction is ‘Aha! Good question!’”

A Joint Effort

Before the pair set foot in the courtroom for trial, Stewart’s considerable organizational and analytical skills come into play as she designates trial exhibits from the Summation database that identifies each and every document. The database includes a field for whether the document is a potential trial exhibit. If she determines it is, she puts a ‘y’ in that field for ‘yes.’ She then prints a list of those documents and submits it — sometimes with the actual documents as back up — to Mark for review.

“We’re very much in sync,” Werbner said. “Of the thousands of exhibits available, I like to use about 100. She typically selects about 90 percent of the ones I would pick. Sure, there’s a risk that she’s missed something, but the risk is the same as if I or an associate did it. She’s very competent and I’m confident in her ability to do it – sometimes more confident than she is.” When the process is complete, Stewart deletes the ‘y’ from the database list for the selected documents and replaces it with an exhibit number.

Stewart is also responsible for demonstrative exhibits.

“We use PowerPoint and TrialDirector, which allows us to visually pull up snippets of a deposition. We also use lots and lots of boards, which can be very effective, and timelines, which Mark and I work on together. It’s a dynamic, ongoing process. I hone in on specifics and help decide the themes and the presentation of the case through demonstrative exhibits,” Stewart explained.

In addition, Stewart is often called on to designate in the pretrial order the depositions that will be used at trial.

“She knows I’m not big on using deposition testimony at trial but that if I have to, I want to keep the excerpts at no more than 12 minutes, whether they’re on video or not,” Werbner said. “I explain to Lisa my philosophy and approach on a case and she’s able to designate the testimony I’ll need.”

Once the trial of a complex lawsuit begins, the flurry of activity can compromise the case’s organization and structure. That isn’t a problem with Stewart by his side, Werbner said. With her exceptional organizational skills, she keeps everything orderly and accessible at their rolling bookshelf at counsel table. “Lisa’s often more reliable than the court reporter in tracking exhibits that have been admitted as evidence,” he said. “The court reporter will sometimes ask her what’s been admitted.”

For almost every big case he tries, Werbner conducts a mock trial or a focus group. Stewart is present for all of them. “From her attendance at the mock trial, she can contribute a lot because she actually observes how people react,” he explained. “These are wonderful tools at trial.”

In the Courtroom

Stewart is also an active participant at trial. During opening statements, for example, she takes careful notes regarding both Werbner’s and opposing counsel’s presentations. “I evaluate whether we came across well and identify issues to harp on during the course of trial,” she said.

She notes what opposing counsel said that was effective and the jurors’ reactions to both presentations. “For example, if juror number five lights up on a certain point, I’ll tell Mark so he can work that in again by restating or emphasizing it either with a witness or in closing or both. If I see a juror not paying attention, I let him know that maybe a juror’s just not getting it.”

Stewart also keeps Werbner on point during the trial. “By the end of a day of trial, I’m wrung out and everything’s run together in my mind. Lisa keeps trial notes of the things she thought were highlights of the day. I look at her notes before closing arguments and use them often to remind the jury of those highlights,” he said.

For example, in the wrongful death case, one of the last depositions taken was a videotaped deposition of an emergency room nurse produced by the defense. “Both Lisa and I were very surprised that she made such a poor appearance. She was sloppy and had a Big Gulp Coke in front of her. Most notable was that her hair was in pigtails,” Werbner recalled.

“Lisa is always immaculately dressed and stylish. She thought it would be good idea to have a video clip of the nurse for trial. The point was the nurse represented the face of the hospital. Her first name was Peggy and she had a long last name. Lisa and I privately referred to her as ‘Peggy Pigtails.’ At trial, the defendant put a Marcus Welby-type nurse on the stand — she was well-groomed and articulate. We pulled up the clip of Peggy Pigtails and I asked the nurse if she knew ‘Peggy … Peggy … Peggy Pigtails.’ The jury roared with laughter,” he said.

Werbner said he knew that perhaps he had pushed things to the edge, “but at closing, I couldn’t help myself. We pulled the clip up again and I again referred to the ER nurse as ‘Nurse Peggy.’ I knew the jurors were thinking to themselves ‘… Pigtails.’

“Lisa has good judgment on how far to go, how the judge is reacting, how the jury is reacting. She’s my eyes and ears in the courtroom. Among her other responsibilities in the courtroom, she’s also my jury consultant.”

And in this particular case, the circumstances obviously left the needed impression on the jury Werbner and Stewart were seeking.

The Value of Teamwork

“Mark sees great value in paralegals,” Stewart noted. “He acknowledges that a jury is made up of different people, usually including a lot of women, who look at things differently from the way he looks at things. I look at things differently than he does. Unlike many lawyers, he recognizes that his opinion is not the sole opinion. He doesn’t make the mistake of not getting a consensus of those around him.”

Werbner makes no bones about it: Stewart is a key player who is critical to the success of his practice and the results he gets for his clients.

“I really believe all this,” he said. “It’s not just a platitude to call what we do a team approach. The beauty of a strong team is that you get a strong result.”

Strategies for a Winning Team

Paralegal Lisa Stewart and attorney Mark Werbner offer these suggestions to paralegals who want to be active participants in a winning trial team:

• Never stop asking questions, even if they seem off base. They might address something the lawyer has not thought about previously.
• Review the documents repeatedly.
• Stay current on developments in the case.
• Take the initiative to conduct factual research on all aspects and angles of the case. What you discover might make a difference in the outcome.
• Keep the case organized. It’s critical when the lawsuit goes to trial.
• Work with the attorney to develop themes through knowing the case and determining what the jury needs to hear.
• Listen to every word at trial and make suggestions along the way.
• Take notes of jury reactions to share with the attorney. Identify what seems to be working and what doesn’t.
• Keep notes of interesting points to use in closing arguments.
• Share your ideas and impressions.
• Remember that your perspective counts. Speak up.

Debra Levy Martinelli is an Oklahoma writer and former paralegal who holds a master’s degree in journalism.