Legal malpractice defense runs on a different playbook — one where the lawyer on trial is often the star witness. Joseph P. McMonigle, a partner at Long & Levit since 1977 and a member of four invitation-only trial organizations, joins host Kevin Morrison to share three trial tips forged over decades defending attorneys. Joe explains why jury questionnaires draw more honest answers than open court, why his firm builds opening statements around video depositions and documents over pure emotional appeal, and why preparing an attorney-client for cross-examination is the case's most pivotal moment — win it, and the direct exam that follows can carry the case. Tune in for his take on remote depositions and mock trials.

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Great trial lawyers are made, not born. Welcome to Verdict Academy, preserving trial wisdom for trial lawyers. Join host Kevin Morrison, trial attorney in San Francisco, as he recreates those invaluable hallway conversations that remote work has made rare. Candid insights and hard won lessons from America's most accomplished trial lawyers, produced and powered by LawPods.

Welcome to another episode of Verdict Academy, where we bring you the best trial lawyers in the country to share their top three trial tips in 30 minutes. My name's Kevin Morris and I'm in San Francisco, and so is today's guest, Joe McMonigle. You know the phrase a trial lawyer's trial lawyer? Well, Joe is literally a trial lawyer's trial lawyer because the focus of his practice is the representation of attorneys in claims brought for legal malpractice. Joe's a member of the four leading invitation-only trial organizations, the International Academy of Trial Lawyers, the International Society of Barristers, the American College of Trial Lawyers, and the American Board of Trial Advocates. He has served as president of both the San Francisco chapter of ABOTA and Calabota. And this year he's being honored with Calabota's Trial Lawyer of the Year Award, which will be presented to him in November.

Joe sits on the California Judicial Council Advisory Committee on Civil Jury Instructions and has served as a member of the California State Bar Judicial Nominees Commission. Joe's a partner at Long and Levin and has been with the firm since 1977, so we know he can hold the job. Joe continues to try cases, and just last year he and his team tried a case in New Jersey State Court to a favorable conclusion. Joe McMonigle, welcome to Verdict Academy.

Kevin, thanks and thanks for the opportunity to speak with you.

I appreciate you being a guest and sharing your wisdom with our audience. You've got so much knowledge to share. And before I get into the three trial tips that you want to share with our audience, let me just kind of ask you a general question. What drew you to become a courtroom lawyer?

I think that the main push for me was, I guess, two points. One is when I first started, I was surrounded by a group of really talented trial lawyers, and I just gravitated to them, but just admired them and watched them through my early days of practice. And then the second thing is when I moved to Long and Leavitt, it was a whole new practice of representing lawyers and there was a void as to a trial lawyer, and I kind of fell into that void. Those are the two main things that kind of drew me to being a trial lawyer.

And did you know when you first went to a court and tried a case, did you know this was your calling, this is what you had to do?

I certainly liked it the first time. I tried a case, I didn't know what I was doing. It was kind of hard to say I want to keep doing it at that point, but I certainly enjoyed the first experiences. All

Right, let's talk about the tips that you want to share, the topics with our audience. As you know, the format of the show is three trial tips and the tips that you want to share are voir dire, the importance of the opening statement, and then the importance of cross and direct of an attorney client, which is always a challenge. So let's start with voir dire. Joe, what are your thoughts on voir dire?

For me, it's the most difficult part of the trial. I also fold in the mini voir dire as well. And quite frankly, I like to use the mini voir dire to make sure our second chair ends up with what we call La Bota points that they have participated in the first part of the case or the last part of the case. But I just find it's just such a difficult part of the case because judges approach it so differently. Some judges have a shutdown view of a voir dire. Some judges don't even allow it. I'm constantly learning what the best approach is. I think over the last couple of years, I've gone away from trying to theme to do any kind of theming because it's so difficult. And I like to try to establish a rapport with the panel and just worry about that as opposed to theming or trying to get thoughts going.

Leave that for the opening statement. So I just think it's a real challenge. You got to do your research as to what a particular judge is going to allow and not allow and kind of craft your voir dire to that. But I just find it to be something that I could get better at. That's the first thought of my list.

Federal judges are generally a lot more restrictive on voir dire. I think state courts generally are much more liberal as a rule. Assuming you're in state court and you know you're going to get some voir dire, do you have a philosophy on whether you like jury questionnaires and whether you use them? And if so, how?

I think jury questionnaires are essential because you don't get the time necessary to probe all the questions you want to ask a particular jury. So we really push on getting a questionnaire. Sometimes the younger judges are not on board. Sometimes the more efficient judges are not on board. But fortunately, I'm usually on the defense and the plaintiff's lawyer share the view that questionnaires are the right way to go.

Always am confused when I ask for a questionnaire and my opposing counsel says no. I mean, isn't more information better than less information? I don't understand.

I don't get that thought at all. I just don't buy it.

Yeah, I don't either. Sometimes I think it's just because I want, they say no, if he wants it, I don't want or something. And I think it maybe comes out of insecurity, but I'll put literally any question on here you want. I don't care what it is as long as you get the certain questions because I think people are generally a lot more honest and open when they're sitting down in a private moment with their own thoughts as to what they say in the questionnaire versus walking into open court, this incredibly intimidating experience for most people. You got a guy in a black robe sitting in a big desk, you got lawyers in suits and all sorts of people. Most people don't like public speaking and they're asking issues about these cases and sometimes they haven't given it much thought and they're on the spot.

They're much more honest in their questionnaire. And I don't know if you found this, sometimes you've got the questionnaire and you're asking them questions. They start to deny and they put on their questionnaire and you remind them what they said and they can be more honest that way like, okay, that's right. Because people want to be polite. They don't want to offend people as a rule unless you've got a personality disorder, you want to please people. And I think you'll find, what I find anyway, that people are much more open on questionnaires. Has that been your experience, Joe?

I think you're right, Kevin. And back to my earlier remarks about voir dire that kind of been on an approach to communicate with the prospective juror. The questionnaire gives you the lead, gives you a way to open up the dialogue with a particular prospective juror. So for that reason, I think that it's clearly essential. You get better information, you get more fulsome responses because of the reluctance of jurors to speak in public. I just am a loss to understand why someone would not want a questionnaire. You

Talked a little bit about mini opening and the laudable goal of yours, which is to make sure that your partners and associates are getting abode points and doing stuff in trial, which is to be commended, of course. Do you have a strategy in terms of your mini opening on the defense view of the world? Do you want to, in a mini opening, and obviously it's short couple minutes, is it your theory to get out the best possible facts that you want to portray to the jury? Do you want to get out some of your bad facts so they hear it out of your mouth before and you admit the stuff they're going to hear about? Do you have a philosophy as to what you like to have in the mini opening, regardless who's delivering it?

I think the most important thing is to begin that communication because I do think that much like the statement of the case, the mini opening is something that kind of goes over the juror's head. So it's more about let's start the communication and let's try to be the person that the judge and the jury trust in terms of delivering the facts. I think it's a combination of get the good parts out, the big themes, and deal with if you got a really difficult issue, deal with it, write that. So both good and bad.

If you know it's coming in, you got to deal with it, so you might as well and get it out there at the beginning of the trial before you get a chance to ask people questions about it. Next topic, generally, opening statements, their importance. Talk to us about opening statements, Joe.

And it may be just our style and our type of case. I think that the jurors of today are used to, I don't want to say entertaining them, but providing all kinds of different visuals, audios, using all the medium that you have available in an opening statement. It's also, it's been our experience that the plaintiff's side focuses more on delivering a message with passion and trying to gather the jury with a passionate presentation. I think we go the other way and we go to the evidence and use video depos of the plaintiff, which we can use in opening statement. We use documents, we use some demonstratives. A combination of that is what our style is because we want to be the side that presents the evidence and are the ones that the jury will look to and trust in presenting the evidence. So it's a more detailed opening.

It's one that I just think is what the jury's looking for in an opening.

With attention spans getting shorter and shorter and folks spending so much time on screens, whether it's their phone or PCs or whatever, and constant small little hits that we're getting of dopamine. We see these little hits and these little reels and our brains are constantly changing the channel basically. And so I think our attention spans unfortunately are getting shorter, but you can't fight that. You're just going to have to deal with that. And that means you have to be zippy and move things along and mix up the media. I totally agree with you. What are the challenges? The plan, I think it's such an advantage to go first. What are the challenges you're generally defending generally as a rule? I know you've got some affirmative cases, but as a rule you're defending. What are the challenges in going second in opening statement?

That's a theme that we start with the very first time we are able to speak to the jury that we go second. And I remind them every time we go second and just say, get a commitment that they're going to wait to hear all of the evidence. So that's a theme that we start up right away because you're right, first impression is huge. In an opening statement, our experience has been jurors give you a clean shot at this is the first impression, but the first impression is going to be both sides. I don't think the advantage comes from going first in the opening so much as it is controlling the evidence and the order of witnesses, which is much more important, difficult to deal with than someone on the defense side. And I hearken back to what you said earlier, Kevin, about the attention span and the jurors.

Our experience has been it's no longer a group of retired people serving on the jury. It's a much younger jury that you get now. And maybe it's perhaps that jury service is being taken care of by companies. I don't know, but my experience has been you have younger jurors as a mix and you have smarter jurors as a mix than you did years going by. So I think it's really important to give them kind of a cafeteria look at the evidence and using every available means to do that.

Do you have a template in terms of, for your opening, you like to tell a story about what happens and contain whether the story is here are the rules of the case and here's the law that I know I need to show that we complied with or the things that we need to comply with and here's the evidence that supports that? Or is it more every case is different and I'll kind of game plan it based on the case?

Our case is that we get involved with what the lawyer was involved in, and so that varies from case to case. It's really different. But there's some common thoughts, which is figure out your couple of three themes, open up with them and drive them home, and then prove them with the evidence, which is video. And I will have to say to step out for a moment, the use of video depos has become, I think, essential in a case. The trial of a case starts with the video deposition. I think jurors pay more attention to that. You telling them what the evidence is. I think that's something that we draw out. The law varies from court to court. We probably get away with talking about the law a little bit more because in a legal malpractice, the law and the facts are usually mixed up and you're able to do so.

But some judges really restrict you in terms of what you can say and present in an opening statement with regard to the law. But obviously we push the envelope on that because it is important to stress that as to what's coming.

I couldn't agree with you more in the video deposition point. I mean, generally my observations are that you're getting a lot more concessions or good testimony, favorable testimony for your case in a deposition atmosphere than you will at trial. For whatever reason, the other side tends to be less prepared for deposition than they are for trial. You might be dealing with a different firm. This is my view, Joe. I'd be curious to hear what you think about this. And so many depositions are now remote. In fact, I can count on one hand how many in-person depositions I've taken since COVID. And with the advent of, or the abundance of remote testimony that is video recorded, my view is that witnesses tend to be more open than they are in a conference room packed with lawyers and a court reporter, and they kind of feel more constrained in the atmosphere.

When they're sitting in front of a monitor, their mindset is more like I'm in a business meeting in a Zoom meeting and they tend to be a little more open with their tongue. Do you share that? Has that been your experience?

Interesting. That's why these opportunities to speak with somebody like you, Kevin, who's tried cases and is an excellent trial lawyer, we constantly pick up things. My own view is I like the live deposition because I'm able to pick up what I'm going to call the cadence of questions that I may not be interested in the first question I'm asking. I'm building with a second question. My real question is the third question, and I can ask them quickly in a cadence to, and seal off the answer if I get the right answer. That's kind of an approach in a depo where I think that's better live than it is remote ability to ask a series of questions because you don't have that delay that relates with the remote depo. I will have to agree, you're probably right, that you get more candid answers from a witness in a remote setting than you do with the pressure of a room full of lawyers and the court reporter and videographer there.

That's a good thought. I'll try both.

I'm always stealing stuff from everybody. I haven't had an original though in my career. Let's bring this to our final point then, the importance of cross and directive attorney-client. It's such a challenge to represent lawyers, one of the least popular professions on the planet, I'm assuming right around congressmen probably these days. So what are the challenges and how do you overcome those challenges, Joe, when you're representing a lawyer for both direct and cross-exam?

So I don't subscribe to jurors don't appreciate or like lawyers. My experience is the opposite, that jurors do like lawyers and look up to lawyers and usually have generally good experiences with lawyers. I will say that if a lawyer is not behaving ethically or has got pieces of the experience of representing a client that are not perfect, jurors come down hard on lawyers. But they start in a good place. If the lawyer doesn't deliver, they turn very quickly. I think the critical piece of the case, and it's always the beginning and it's always the call for the plaintiff's lawyers as to whether or not to put on the attorney defendant as the first witness. And typically that's what happens because usually the client can't tell the whole story because they don't know the whole story, but the lawyer knows the whole story. So in order to start with a proper chronology, usually the plaintiffs start with the attorney defendant.

That's the most important part of the case for two reasons. Number one, the lawyer has to perform well on cross or else you won't overcome it. So obviously we work really hard at getting the lawyer defendant ready for that cross. And equally important is that when you go with the plaintiff goes with the attorney defendant first, they run the risk of the defense taking over the case because typically judges are not going to restrict the examination of a lawyer based on what the cross-examination was. It will be wide open because almost all judges are of the view, we're going to do this witness once unless counsel for the attorney and defendant chooses otherwise, and that would be a terrible mistake and shouldn't ever do it. What's equally important is to get them ready for that cross is to take over the case with the direct exam thereafter and basically tell your whole story right there.

And to me that in our kinds of cases, that's a critical time. Do well on the cross, take over the case with the direct examination. Run the whole case at that point.

I find that fascinating, Joe, because I often, I do mostly personal injury cases, wrongful death cases, and focusing on the defendant's conduct is something that's very important for us, and that's what I tend to do. I've always put the defense conduct on trial first. That's often through the defense witnesses of some kind. And so I'll often do a 776 of defense personnel as my first witnesses. That's the general rule. There's always exceptions to the rule. I've never had a judge not agree that this is my case, Your Honor. It's not their case. I get to do my cross. They can certainly respond and rebut questions. It's not their time to do their direct in their case. And so it's interesting that you've had success in the other direction there.

Obviously you should fight it. I think we all subscribe to the view that a cross-examination is easier than a direct examination. And to start the case with a 776 witnesses and to focus on the defendant's conduct is the way to go. We've been able to push the envelope in presenting our case and not being limited to how the plaintiff has decided to cross-examine our witness.

Good for you. So much risk when you put that defendant on, you basically got to win. My theory is you're not going to win your case on your expert. You're going to win your case with the defense witnesses and the defense documents and what the defendant did or didn't do. Usually that's my view. So you do a lot of prep with that attorney-client then. Lots of Q&As, prep Q&As, and testing the buttons and seeing how he or she's going to perform.

We use our walked away from doing mock trials. We do because I don't think you could create the solid mock trial. They are of no help for evaluating the case. So we're all about focus groups. We're all about taking the attorney defendant through practice cross-examinations for this very reason. It's so important for the first cross-examination. That's our approach to get ready for that moment. It's a big time moment in the case.

It is a big moment in the case. I'll be interested to hear your view on this topic before we close things out as expected. The 30 minutes went by very quickly. But there's a philosophy on our side, Joe, that when you do these practice crosses of your client, that you should have somebody else in your office do that because it's such an important part of our practice that the client and the lawyer have a strong connection emotionally. And if you do an aggressive cross of the client, in doing your job to prep that client and get him or her ready for trial, that that might cause the client to lose something because boy, this is so aggressive and I don't like you anymore. Does that ever come into your equation at all when you're dealing with professionals and attorneys in your situation?

I think it's more focused on your side because you need that emotional bond with your client. We fall in line as well. Hearkening back to the idea of the mock trial, usually if I'm going to be the lead lawyer, I am going to take the defense in a focus group or a mock trial. And typically the plaintiff's case is easier to present. I think I'm 0 for seven in the last mock trials. My partner has prevailed in almost every one of them. But there's a little bit of that for us that if you really rough up your client, it's kind of hard to patch that up and establish a rapport. Not as significant as your side. I certainly think we subscribe to the same theory that separate that out.

Well, like I said, I knew that 30 minutes would fly by and it has, but before we send off here, Joe, any final advice you want to give to aspiring trial lawyers or younger lawyers in the trenches? I

Ended up where I'm at by accident and keeping my eyes open. If you want to be a trial lawyer, first of all, you got to figure that out. I mean, it's not easy to figure out, but if you want to be a trial lawyer, there's a whole lot of firms that don't try cases. And there are firms that try cases. And if you want to do it, you just kind of keep your eyes open to where's the opportunity? Because you may end up in a place that you're with really good lawyers, but they don't try cases. Just keep your eyes open to where a place would be that you would be able to try cases in. You and I can identify law firms that do so. Your firm is obviously one of them. That would be the advice. If you're interested in it, get to the spot that you're going to have the opportunities.

Well, Joe McMonigle, thank you for your commitment to the Seventh Amendment. Thank you for your service to ABOTA, and thank you for being a guest in Verdict Academy. It's been a pleasure.

Kevin, thanks for the opportunity.

Thank you for listening to Verdict Academy. If today's insights resonated with you, please subscribe and share with colleagues in a world where we see each other less. Learning from experienced trial lawyers matters now more than ever. Join us next time. Produced and powered by LawPods.