Today, Gene Brown Jr. is a member of the “Big Four” invitation-only organizations of elite trial lawyers: the International Academy of Trial Lawyers, American College of Trial Lawyers, American Board of Trial Advocates, and International Society of Barristers. But his first trial? “I was so nervous that I sat for my opening. I examined witnesses from counsel table, and I finally garnered enough courage to stand up and do a closing.” Gene won that case, and it sparked a legendary career spanning more than 125 jury trials. Now a senior counsel at Hinshaw & Culbertson, he visits with host Kevin Morrison to share hard-won insights about three critical aspects of defense trial work: overcoming the challenge of going second, mastering jury selection without relying on questionnaires, and preparing thoroughly.

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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

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That remote work has made rare candid

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America's most accomplished trial

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pods.

Hey everybody. Welcome to another

episode of Verdict Academy.

Today's guest is a good friend

and legendary trial attorney,

Eugene Brown. I like to call him

Jean because I consider him a friend.

Gene is currently a senior counsel

with Hinshaw and Culbertson in San

Francisco, but he is had

a long and storied career.

Gene graduated from Cal and then

went on to USF law and got some

legal training from the Jesuits here

in San Francisco. Jean has tried,

as I understand it, in excess

of 125 jury trials to verdict,

including all sorts of cases,

products, cases, premises cases,

cases against railroads, IP

litigation in Eastern Texas,

toxic tort cases throughout

the state and the country.

Gene is a member of what

I call the big four,

the big four invitation only trial

organizations comprised of the

elite trial attorneys in the

country, and that's ABO a,

the American Board of Trial

Advocates, where is a diplomat,

and he's passed San Francisco

chapter present. He also sits on the

national board for our San Francisco

chapter and he has received our chapter's

most prized award.

That's the Don Bailey Civility

and Professionalism Award.

He is also a member of the

International Academy of Trial Lawyers,

comprised of the top 500 plaintiff

and defense attorneys in the country.

He's a member of the American College

of Trial Lawyers and of course the

International Society of

Barristers. That's the big four.

He teaches quite often

teaches trial advocacy because

Gene likes to give back.

He's taught at the TIPS Trial Academy

that Aboa puts on also at the National

Trial College.

Gene is also a member of the Law

Dragon 500 leading litigators

in America. Gene Brown, welcome

to Verdict Academy, my friend.

Thanks for being here.

Thank you, Kevin. And you're quite

generous with those comments.

Well, they're all true.

They're all true. Tell me,

how did you and our audience get to know

you a little bit before we get into the

topics? The top three things you think

younger trial attorneys should know.

How did you get into trial law?

Well, it was really by accident,

Kevin, when I graduated from USF,

I set out to find a job here

in the San Francisco Bay area.

I interviewed at several firms and

I was unsuccessful in landing a

position.

And I had a friend of mine who suggested

that I apply for a job at the Alameda

County District Attorney's Office,

which I did and met with

then the DA Lowell Jensen,

who ended up being a judge

in the US District Court.

And Lowell hired me and I went to

work for the DA's office and I'll

tell a short story,

which is that I showed up my first

day in the office and it was great.

They gave me a bunch of files and said,

go through these files and subpoena the

witnesses you think you might need if

you were trying a case. And I said,

oh, that's great. At noontime,

the guys came down and I used that

term generically, came down and said,

let's go and have lunch. And we

went out and had lunch at four 30.

Everybody said, well see you

tomorrow. And I said, fine.

And we left Next morning, I show up at

the office, the elevator door is open,

my supervisor's standing in front of me

with a giant binder and he says, here,

take this and go down to department

14. And I said, for what? And he said,

you got a jury coming in.

And I said, excuse me,

when does the training start? And

he goes in about five minutes.

So that's how I got my start.

Wow, that is such a great story.

And it's how things were

done decades ago and man,

there's nothing more valuable than getting

experienced on your feet like that.

How did you feel?

We had nervous walking into court

ready to try your first case.

I mean days into your career here.

Yeah. Was I nervous? I will tell you,

I have never been one that likes

to stand in front of an audience.

So I get down there and the jury comes

in and of course I got to do jury

selection and I'm trying to

fumble through this binder,

looking for questions to ask and

this and that and the other thing.

And I was so nervous that I

set for the entire jury voir

dire. I set for my opening.

I examined witnesses from council

table and I finally guarded enough

courage to stand up and do a

closing. And I'll tell you,

I was as nervous as could be.

Wow. What a great story

though. What a great story.

And you got through it and you fought

through it, and did you get a conviction?

I did get a conviction. And what I

will say is that the defense lawyer,

I mean I think I saw he just

took me from every corner of that

courtroom. I mean, it was just like,

oh my god, this guy's killing me.

But it was a great experience and

I got lucky and won that case.

And from there it was

just like, bring him on.

Yeah, exactly. How many years with

the DA's office were you, gene?

I was in the DA's office

about three years.

And there you could try a case

in a week or three or four days.

And so I tried the cases back

to back to back to over those

three years. I was really fortunate,

lucky to have that opportunity.

Yeah.

I've heard nothing but good things about

the Alameda County DA's office in terms

of a training ground,

has been some terrific trial attorneys

here in the Bay Area have come through

there.

Absolutely, absolutely. And I

think that people, I don't know,

but Kamala Harris was a deputy in

that office long after I had left.

But she's someone who is.

Notable. And then after three years,

you decided that you were not going

to be a career prosecutor, I guess,

and then went into private

practice. Is that what happened?

Yeah,

that was kind of the plan

after I discovered what this

law practice is like. So

I had a fraternity brother from Cal

who was an associate in a law firm,

a small law firm in Oakland.

They had about 12 lawyers.

And so he called one day and said, would

you like to come over and work with us?

And here in Oakland, it's

a long time Oakland firm.

And I played softball with those guys

and went over and talked to them and they

convinced me that that

was the thing to do.

And so I joined that firm

and became the 13th lawyer.

And by the time we ended

up wrapping that firm up,

we had about 80 lawyers. And like I said,

I was number 13 and it was all very

good. And they were all trial lawyers.

And I can say that of

the senior lawyers there,

five were members of Abodo.

Wow. Ralph Lombardi among them, is it?

Yes, yes, yes. We had

Ray Burgess, Fri Schwarz,

Ralph Lombardi and others.

So it was a very good firm and

did a lot of trials. And again,

I was fortunate that I was able to step

in there and because of my experience in

the DA's office, I was able to

take on a lot of other civil cases.

They weren't all large small cases

that the partners would hand down,

but I continued to get a lot of

experience in terms of trial.

Work. Fantastic.

And is it fair to say you're primarily

or exclusively on the defense side,

your civil career?

I do exclusively formally defense work.

Okay.

I have represented,

I had a lady who lived across the street

from me and she slipped on someone's

driveway and broke a hip and she

wanted $5,000 for her medical bills

and that kind of thing. And we

got her a bit more than that,

but that's kind of my experience

with plaintiff's work.

Right. And so primarily, overwhelmingly,

your professional career has been

devoted to defending defendants.

I know you tend not to do

insurance defense work.

You're primarily representing self-insured

corporate defendants for the most

part. Is that fair?

That's correct. Yeah.

Great.

And so getting then to the kind

of three things that young trial

attorneys should know, and that's

kind of the focus of Verdict Academy,

this podcast.

I know one of 'em that you want to

discuss is just kind of going second,

the challenge of being a defense lawyer

going second in trial. As you know,

the plan's got the burden

of proof, gets to go first,

gets to put his or her case on first

and the defense goes after that.

But first impressions are so important

and once a jury gets certain leanings,

I suppose it can be difficult

to get through that. So tell me,

what are your tips for young lawyers to,

how do you get through the defense

message when the plaintiff gets to go

first?

Well, Kevin,

I'm going to back up a little bit and

say that dealing with that issue that is

who goes first really starts when you

establish a relationship with the court

and the court at attache.

And by that I mean you must

establish credibility with the court.

You must be viewed by the

court attache as someone who is

vital to the case and someone

that they can look to for

information about what is going on.

And once you establish that and the

court, and when I say the court,

I'm talking about the judge views you

as being someone who has credibility and

knows what's going on in the courtroom,

that attitude carries over at

the time that you start jury

selection.

The jury has to know and understand from

the very first time that they come into

the courtroom,

which lawyer is in charge

because someone is going to be,

one of the lawyers is going

to be in charge of that

courtroom. And like you say,

since plaintiff has the burden

of proof and they go first,

the first voice that they typically hear

will be that of plaintiff's counsel.

I like to break that up a little

bit and try to have the jury

hear the first voice being me, alright.

And having the judge interact

with me so that again,

we establish a certain

relationship, a certain rapport.

The jury takes cue as

you know from the judge

oftentimes, and that's

really very important.

So if the judge is relating to

you as a defense lawyer going

second in a very positive way

and really in a certain sense,

and I'm not talking about in the

traditional sense of deference,

but responding to you

in a very positive way,

that goes a long way to diffuse that.

Who goes first kind of situation.

Okay. What do you do during the,

so the plaintiff gives the opening, you

give the defense, gives the opening.

I'm assuming you always take advantage

of that opening at the beginning.

You don't wait to defer it, do you?

No.

Yeah.

So you got to get your message there and

then a plaintiff puts this case on or

her case, I say use his generically,

plaintiff puts the case on,

and then of course you

get to cross examinee.

Are you cognizant of making sure

the defense themes get out right

away in your crosses of

the plaintiff witnesses?

Well, Kevin, and I don't

know how this happens,

I mean how the magic happens,

but I think if I could just digress for

a minute and go back to jury selection.

I let the, when I'm doing a voir dire,

I let the jury know that the reason

that Mr. Morris is speaking now is

because he has the burden of proof

and he has to prove his case.

I don't have to say a word. I

can sit over and say nothing,

but I am not going to

do that. But that said,

bear in mind that when the evidence

comes in, it comes in from both of us.

He'll ask a question, he'll get an

answer. I get to cross examinee,

I ask questions, I get answers.

So you've got to hear all of

that when you're making your

decision.

So just because I go second

doesn't mean that you disregard

everything that I have to say or anything

that I have to say. You got to listen

to both of us. So then

in cross-examination,

of course there are some times

when we may not cross a witness.

There's got to be a purpose

behind everything that you

do in that courtroom from

the time that you begin talking to the

jury until the time that you give your

closing, if there is no purpose,

and it doesn't have to be a gigantic

monumental kind of situation,

but there's got to be something

that's at least marginally important

before you stand up

and question a witness.

There have been times when people have

called an expert witness and the court

will say, Mr. Brown cross-examination,

and I'll stand up and say, your Honor,

I have no questions of this witness, which

can be important. The jury goes like,

well, why did you do that? Now you

got to tie it up in closing by saying,

the reason I didn't have any questions

is because he didn't say anything

important.

But that essentially I think addresses

your question about the issue of

going second.

Yeah, for sure. And then in terms of

closing argument, and then you've got,

gets to do a rebuttal after

you're closed. So once again,

the plant's attorney is both the first

voice and then the last voice the jury

hears. What do you do,

if anything in your closing to

anticipate the plaintiff's rebuttal?

Well,

one of the things that I believe that

you have to do in trying cases is to

always understand the opposition

case as well as you almost as

well as you understand your case.

And that allows you to anticipate

where they're going and what it is that

they're going to say. In closing,

one of the first things that I do,

I dedicate a certain portion of

my time as judges are giving us

time limits now on openings and closings

and rebuttal and that kind of thing,

but I use a certain amount of my

time to rebut what I have heard from

plaintiff's counsel and

then I do my closing.

And then I let the jury know that now

Mr. Morrison is going to get up and he's

going to tell you not in

these simplistic terms,

but he's going to tell you that

everything I have just said is wrong.

But you've sat here and you've heard

the evidence, you've made notes.

We've had a court reporter here who can

read back the testimony if you think

that anything that I have said is

incorrect and you can make a decision,

it's your job to make a

decision based on that evidence.

And so he's got the burden

of proof he gets to go last,

recognizing that I don't get another

opportunity to stand in front of you and

point out the errors and what

is being said in this rebuttal.

Got it. We talked a little bit,

we touched on jury selection when

we talked about you going second

as a defense lawyer and what

you do in jury selection.

Any further thoughts on jury selection

or the use of questionnaires?

Do you use questionnaires?

Do you like questionnaires?

Would you rather not use a questionnaire?

Does it depend on the case?

What's your philosophy on questionnaires?

Yeah, I am not, and I am not a

big proponent of questionnaires.

They can be useful in

ferreting out some information,

but the most important thing about a

trial is establishing rapport with the

trialer of fact. Right.

And how do you do that?

You have to stand in front

of the potential jurors and

you have to connect with

them.

You got to be yourself and you've got to

let them know that you're a human just

like they are and that you understand

what their job is and how we all relate.

But you've got to establish rapport and

you cannot establish rapport using a

questionnaire. Now the court has

its own questionnaire as you know,

which is usually short, a page or two

to get some background information,

which I say is fine.

And typically if the plaintiffs or

defense come up and they want to use a

questionnaire,

they'll make them long and drawn out.

And if the court is agreeable to using it,

the court will say, okay,

you've got this questionnaire.

I'm going to give each side 10 minutes

to follow up, or whatever it is.

We spent a day with people going through

and filling out these questionnaires.

You got the information that makes

it tough to establish report.

The jury doesn't know

you from Adam or Eve.

So if I had my druthers, I would

probably not use the questionnaire.

Again, it allows me to

stand in front of the jury,

allow them to see who I am,

to hear who I am, to know me,

and to understand that I am there to give

them the information they need to make

the correct decision on the evidence

that the lawyers are going to present.

So jury selection, let's say

we've got a 12 or a six pack.

So you're talking 18 at a time.

Let's just say you get up there.

Are you behind the podium? Do you

have notes? Do you have a chart?

Are you just looking at their eyes?

Do you have an associate or a

colleague who's taking notes?

What's your protocol?

Yeah, I take notes during

my oppositions voir dire.

And because they're going

through the process,

I try to as much as I can.

I'm not saying that I memorize

the names of every juror,

but I pick out a few jurors

who are notable or potential

jurors who are notable,

and I pick out a couple questions

and answers that have been provided

so that when I stand up,

I do not use a podium.

I don't use a podium for anything at all.

And I learned that when I did a program

back in New York several years ago,

it was a program with some prominent

plaintiff's firms back there,

and the plaintiff gave an opening

or something and I stood up.

The first thing I did was move the

podium and they could record the juror's

reactions to what you were doing.

And when I moved that podium,

they got an immediate reaction. And when

I stood in front of them and talked,

it was just going off the chart. So that

was a great lesson for me. But again,

it allows you to relate to establish

rapport and get to know the jury.

So I typically will have a

notepad and I will try to

position it just in case I need

to refresh myself about something.

But most of my examination of the

potential jurors or interrogation of

potential jurors is done extemporaneously.

Got it. Just you're in the flow.

You heard something that you were

listening to their answer and you heard

something that causes you some

concern, and so you follow up on that?

No, I do that. And you know

what your case is. I mean,

every trial involves a

case within the case.

And by that I mean Kevin,

you've got your case,

but I also have the case that I am

trying to convince the jury of which is

within your case,

and I know what that is and I know where

the landmines are and I know what the

evidence is going to be and I know how

the witnesses are going to look. Okay.

And you know that just by going

through the discovery process,

so you can conduct a

pretty decent voir dire,

just having it grown up and

put together and strategize

and develop your case.

Right. Okay. Before we

move on to the third topic,

anything else you want

to discuss on voir dire?

Any tips for young lawyers on voir

dire jean that you want to bring out?

Yeah, like I said before,

and I think I just underscore

that you have to be yourself.

Don't try to be someone else.

I see a lot of folks who want

to stand up and be funny or be

witty and that kind of thing.

I think it's important for the jurors

to understand that you're there for a

purpose that's serious.

Not that you're or can't be a

more lighthearted situation,

but being in trial is

not the place to do that.

And there's certainly going to be things

that happen where something's funny and

everybody will chuckle and

you've got to chuckle as well,

but you are there for serious business

and you want the jury or I want the

jury to know, appreciate and understand.

Sure. And then lastly,

last topic you wanted to emphasize

to the younger trial attorneys is the

importance of preparation.

The three most important parts of getting

ready are preparation, preparation,

and preparation. So tell me about

your work ethic, what you do.

You parachute in a lot of cases I think,

and tell me about what your work ethic

is and the importance of preparation.

Yeah, it's absolutely essential.

The three Ps just are really the

crux of everything that we're

doing. And it's important.

One of the reasons that it's extremely

important is because I hear a lot of

lawyers talk about the hours that they

expend in the off hours when they're in

court all day and they come back and

the evenings working into the late hours

and doing this and that. I

think that is really suboptimal.

And that's because you can't be at

your best if you haven't gotten a good

night's sleep,

you haven't gotten a good meal and

you're not ready to go in the morning.

So when you're working your way

up to trial, what I would say,

I don't know, depending on the

case, it can be the last 90,

60 or 30 days is when you bear down.

And when you develop your and

establish what you're going to do on

cross-examination, on direct

examination and jury selection,

that's when you prepare.

Because when you get to the trial,

the case should really, to use an

overused term, should be in the can.

You should know what's going on. Now,

there are always going to be some

things that you haven't planned,

but if you know your case and if you have

an understanding of what you've got in

the jury box and who your witnesses are,

you can handle those little

detours without a lot of

trepidation. So I hear

lawyers say, oh my gosh,

I was up until two in the morning doing

blah, blah, blah. And I kind of go like,

I don't view that as being a plus.

That tells me that you didn't do what

you needed to do earlier on before this

trial started to get ready.

And so because of that,

it is likely that you have

missed something. And again,

it's because you've got to be ready,

you've got to be on when you walk through

those courtroom doors in the morning,

and again, if you're up till

two and you get up at six,

I am willing I'd lay whatever down in Las

Vegas that you're not going to be at

your best when you're in front of that

jury. And that is the most important

thing that should be going on.

Yeah, we're like two piecing a pot. If

we try a case together during trial,

I'm in bed by no later than 10 o'clock.

Now I will get up at four

or four 30 to do some work.

I'm an early bird if that's required.

But by the time you get to trial,

like you said,

it's in the can and where the prep

work goes are the five weekends

before where you spend every Saturday

and Sunday in the office going over depth

transcripts and discovery responses

and that kind of thing. Right.

That's where you really grind it out.

That's absolutely correct.

I like to play golf,

and I'm not going to say that

I'm good at it, I'd be lying.

But when I'm preparing for trial,

the golf days are few and far between

because that's the time when you can

really drill down on what's going on

with your case and really get to know it

and develop it. Now,

that's said what you're doing is

you're going back and looking at the

information that has come to the fore

that you've developed through the

discovery process, through

the depositions and the like,

and through the motion practice,

the law and motion practice so that,

because you've got to know all

of that. So you're right, Kevin,

the time to do that is

the weeks and months

before the trial actually begins.

Right? Absolutely. We're almost done,

but we did talk a little bit offline

about wellness and staying fit,

and you obviously are extremely fit

guy. You clearly take care of yourself,

talk to the younger lawyers

about the importance of wellness,

staying fit, exercising,

keeping healthy while we deal with

this incredibly stressful career.

And I think we have to bear in

mind that staying fit and being fit

is kind of a relative term. I mean,

we're not all the same people and we

don't all have the same body types and

physical attributes. But probably,

I'm going to say 30 years ago,

and I'm probably being a

little bit short on that,

but I determined that if I

was going to do trial work,

that it was important

that I be fit. I mean,

because being in trial is a little

bit like being a prize fighter.

You've got to be able to go 15

rounds, and in order to do that,

you've got to be in the

best shape that you can be.

So I have a routine that I have

been involved in for, again,

more than 30 years. I work out

with weights three days a week.

I walk now, I used to

run three days a week,

and then I play golf on Saturday

and Sunday when I can. And my diet

is, I'm not a zealot about

it, but I try to eat healthy.

I try to keep my consumption

of adult beverages,

as they say in line with

my view on that again,

because it's important that you're

able to actually go the 15 rounds

that are involved in trial.

And this morning, again,

before coming down here and sitting

down and talking with you, I got up,

it's Monday, it's a weight training day.

I have a gym down in

the basement of my home.

I went down and I worked out

with weights for 45 minutes

to get ready. And tomorrow morning I'll

get up and I'll do my two and a half,

three mile walk. So you just

have to do that religiously.

And I will say I do

that during trial again,

because I'm not staying up until the

wee hours of the night trying to get

prepared for a witness that I've known

about for six weeks or eight weeks or 12

weeks. I'm ready when we go to trial.

So that routine is established

and it really benefits you in

terms of the work that you're doing.

And I would say not only in trial,

but it's important to do it just

in your normal everyday practice.

Yeah, a hundred percent. You got

to stay fit. And what I've found,

and I'm curious if you've

observed the same thing,

I'll get away and take a break and go

for a swim and a trial morning at five

o'clock, let's say, just to

shake out the cobwebs. And boy,

the ideas I have while I'm exercising

away from the desk about, oh, geez,

I should do this. That

happens all the time. You.

No, absolutely. Absolutely. Like

you say, you shake off the cobwebs,

those endorphins get coming

up and you just become a

different person. I mean, it's essential.

And I agree with you a hundred percent,

just getting up and doing that

little thing in the morning.

You talked before about being

in some hotel in some small town

somewhere. If they don't have a

gym or they don't have a treadmill,

I'll just spread out a towel on the

floor in my room and do some pushups,

sit-ups and some other exercises

just to get myself going.

Yeah. So important. Well,

not surprisingly that half an hour

has flown by Any parting words,

Jean to our young attorneys about your

career or any tips for them before we

shut down?

No,

I've been fortunate and I've enjoyed

the opportunities that I've had and I've

tried to make the most of them while

at the same time, keeping in focus.

Other things,

there are other aspects of life that

don't have anything to do with trial work

or the practice of law that are important,

and we should all bear that in mind.

I take a lot of pride and my daughter

was in choirs and a singer and that kind

of thing, and I've never missed

a concert of hers. And my son,

I coached his first little league baseball

team and went to the lacrosse games

and the basketball games. Now you

got to put in the time at some point.

And so I do that when they're

asleep. And like you, Kevin,

I've gotten up at four 30 in the morning

to go for my morning run because I was

doing something the evening

before the kids were involved in,

and I needed to participate in that,

and then I can fill in the next day.

But you got to live life.

And what we do in terms

of this work can be so

consuming that you lose focus on that.

But I think it's important to

live life and be a participant.

Jean, great words of wisdom.

It's been an honor having you on this

podcast and more importantly to me

personally, it's been an honor to get

to know you and get to be your friend.

So thank you for your service to ABO

and all the organizations you've been,

and thanks for being on today.

Thank you so much, Kevin. I've enjoyed

this again, this great opportunity.

I appreciate it.

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