What do you do if, as a junior associate in a large and respected Houston law firm, you find yourself entrusted with a high level of responsibility in a huge industrial litigation, and you know that you won’t see that level of responsibility again for years? If you are a trial lawyer at heart, you take a loan from the bank and a deep breath, hang out your own shingle, and begin hustling for clients. And, if you are Arthur S. Feldman, you win an eleven-to-one verdict of gross negligence in your first trial as a solo practitioner and go on to build a successful practice representing clients ranging from individual plaintiffs to Fortune 500 companies in civil cases as diverse as personal injury, medical malpractice, discrimination, breach of contract, and copyright infringement. And you take pride in the fact that, while you set out to make money as a lawyer, you have also managed to do a lot of good for folks along the way.
Feldman graduated cum laude from Duke University with a BA in political science. He earned his JD from the University of Texas at Austin School of Law (UT Law) and served as a law clerk to the Honorable Joseph T. Sneed in the Ninth Circuit Court of Appeals.
Clare Cosslett: Have you lived in Texas your whole life?
Arthur Feldman: I grew up in Houston, Texas , and have lived here my whole life, except for when I went to school. Both my parents were professionals. My dad was a physician. He’s retired. And my mother was a speech pathologist. I have two brothers: a doctor and a businessman. I’m a third-generation immigrant. One side of my family came from Russia and ended up in Omaha, Nebraska. The other side came from Poland, passed through Galveston, and ended up in a small town called Shepherd, Texas. Galveston was the second-biggest port for Jewish immigration and that side of my family turned into bona fide hicks pretty quickly. They grew up eating squirrel and frog legs. I have an eclectic background for sure.
Cosslett: Are there still members of your family out there munching on roadkill ?
Feldman: Well, we have a family pond still in Shepherd. And I plan to go harvest a ten-foot alligator in September. You get a dead chicken, and a big hook, and a real strong rope. You leave it there overnight, and you come back the next day, and you hope that it tried to eat the chicken, and then you shoot it. So that’s it. Shoes and a handbag. After I get rid of the gator, I’m going to do some duck hunting on the pond with my dog.
Cosslett: Wow. Life sounds rough in Texas. How did you choose Duke for undergrad?
Feldman: I got in at the last minute, actually. I was on the waitlist. I had planned to go to the University of Texas like most of my high school friends, and I had a room and a roommate lined up. About three weeks before I was supposed to start school, Duke called and said a spot had opened up. I just got in my car and drove there, sight unseen. I had no idea about Atlantic Coast Conference basketball—no idea. All I knew was Southwest Conference football at the time. I learned all about basketball when I was up there. Became a big ACC basketball fan and still am.
Cosslett: Was sports a factor in your decision?
Feldman: Nope. Did not factor at all. I just wanted to get out of Texas.
Cosslett: I’ve talked to a few people who grew up in Texas, and what I hear is, “I wanted to get the heck out of Texas.” Most of them stay out of Texas, but you came back.
Feldman: Well, it’s pretty one-sided politically here—more so than it’s ever been. But when I grew up it wasn’t like that. I had always planned on coming back, but it was good to leave the nest for a little while.
Cosslett: When did you make the decision to go to law school ?
Feldman: When I graduated from Duke with a degree in political science, I could have gone into sales or general business, I suppose, but I wanted to go ahead and get a second degree. I wanted to be a lawyer. I had wanted to be a lawyer for a long time. I was always very argumentative, so it was a natural progression.
Cosslett: Was the University of Texas a good experience? Did you enjoy UT Law ?
Feldman: I would say that Texas was the first time I really tried to apply myself as a student, and I did very well my first year. In my second year, I was asked to be the managing editor of The Texas Law Review. So I did that, and it took a lot of time, as you might imagine. During all of my second year, most of the summer between my second and third year, and the first half of my third year, I often spent fifteen hours plus a day in the office of the law review. It was pretty demanding.
Cosslett: Were you able to keep up with your coursework when you were spending that much time at a publication ?
Feldman: It dropped off, to tell you the truth, but I still did okay. I didn’t have any trouble in my classes, although I wasn’t getting the highest scores on my exams. I ended up graduating with a respectable GPA, but I wasn’t the top of the class by any means. The law review was really a full-time job.
Cosslett: Of your courses, what do you remember enjoying the most and what do you remember not enjoying?
Feldman: I remember professors more than I do the courses. I took a procedures course from Michael Tigar that was very enjoyable. He’s a very well-known criminal defense lawyer. He is now Professor Emeritus of Law at Duke. And I took some courses from Bill Powers, who became dean of UT Law and is currently the president of the University of Texas at Austin. I had a really good relationship with Charles Alan Wright, which I’m pretty proud of. He co-authored, along with Arthur Miller, the definitive fifty-four-volume treatise, Federal Practice and Procedure . His office was right next door to the law review, so I would see him quite a bit. He was a very interesting guy, quite a figure. I talked too much in law school, and he actually had me handcuffed and gagged at one point as part of a class on free speech. He asked the biggest guy in the room to handcuff me, and he did. I didn’t talk as much in class afterwards. A year later, when I was working late on the Review, he asked me to witness his personal will, which I’ve always considered to have been quite an honor.
Cosslett: When you graduated, you clerked for a year with the Ninth Circuit . That appears to be a very popular circuit.
Feldman: There was a judge in the Ninth Circuit named Joseph Tyree Sneed III who had gone to UT and became a Nixon appointee. He always picked one clerk from Stanford and one from UT, and he traditionally picked the managing editor of the law review at UT.
He had a very famous daughter, Carly Fiorina. She was the CEO of Hewlett-Packard and unsuccessfully ran for the Senate a couple of years ago in California. She is a trailblazer as a woman in tech. They had an incredible home in Pacific Heights, and we got to go in there a couple of times. He was a very nice guy.
Cosslett: Tell me about your experience clerking .
Feldman: When you’re clerking on an appellate court, it’s a bit isolated. You have your judge, the judge’s staff, the co-clerks that you work with, but you really don’t see or interact with attorneys very much because it’s not like a trial court clerkship. There were two other clerks, and a staff of two or three. It was an odd time to clerk for the Ninth Circuit in San Francisco because it was right after the Loma Prieta earthquake. The incredible Beaux-Arts building that had housed the court wasn’t habitable because of the earthquake, so we had to move offices a couple of times. Eventually they were able to rehabilitate the US Court of Appeals Building and moved back in, although not until after my clerkship ended.
Cosslett: I would imagine a Nixon appointee would tend to be somewhat conservative. Did Judge Sneed look for a clerk who agreed with his worldview?
Feldman: To his credit, I don’t think it ever came up, even as an interview question. He was going to rule how he was going to rule, and we were the laboring oars—we weren’t steering the boat. I think he appreciated hearing many sides, so I don’t think his politics were an issue when he chose his clerks. I wonder if that’s less the case today, but I hope it isn’t. I was sad when he passed away in 2008.
Cosslett: When you took your first job after your clerkship, you knew that you were going to sign on with the Houston firm where you had summered, Mayor, Day, Caldwell & Keeton. Why did you choose them?
Feldman: I had made some good friends there over the summer and it was a good fit. I’m still close friends with almost all of my class at Mayor Day . I see them all regularly, do business with them, refer cases to them, have cases referred by them. But, while I really liked the firm, I realized after a few big trials that I didn’t want to stay. It was a fairly large-size firm, about one hundred and thirty people by the time I left.
Cosslett: Tell me about the life of a junior litigator at a big Houston firm.
Feldman: I don’t think my experience was very typical. I knew I wanted to get into trial work and started as a litigator working directly under Richard Keeton, who is still practicing. I count Richard as my mentor. He was assigned immediately to a very large case and I assumed a pretty big role in it that dominated my career for the first couple of years. I’m pretty sure I took more depositions in the case than anyone else. It was a commercial fraud case involving a chemical plant. It was probably at the time one of the biggest document-production cases that there had ever been. It was a huge, huge lawsuit and it went to trial. And we lost badly.
Cosslett: Which side did you represent?
Feldman: We represented the plaintiffs . For half a billion dollars, they purchased technology and equipment to build a huge plastics plant that made ethylene, which is a principle building block in most plastics. They sued the engineering firm for fraud over the representations made concerning the capabilities of the technologies.
In hindsight, it couldn’t have been a better experience for me. It was pretty tough to start out, but it was a lot of responsibility early on. The work involved a lot of depositions, briefing, work with witnesses, running around, document production, and putting evidence together—things that I continue to do to this day. I just don’t think that most lawyers at my level were asked to shoulder such a high level of responsibility.
Cosslett: As a first-year?
Feldman: As a first- and second-year. There was a tremendous amount of support. There was another firm in New York that was co-counsel, but when the rubber hit the road, somehow it always ended up that I was the one taking the depositions. I took the deposition of the defendant’s principal design engineer. It took a really long time—many days, as I recall.
Cosslett: How did you feel when you lost? Had you expected to win?
Feldman: It was a tough case going in, and it remained tough all the way through. We had extensive resources that were brought to bear. We had a shadow jury and a jury consultant with a video feed to the trial giving input every day.
Cosslett: What’s a shadow jury ?
Feldman: People picked from the public whom we paid by the hour to sit and watch the proceedings and tell us what they thought over the nine weeks of the trial. The jury consultant tried to select people who matched the actual jury in terms of age, ethnicity, and socioeconomic background.
It’s too bad the shadow jury didn’t get to render the verdict, because they kept telling us we were winning. In truth, I really never trusted it that much. I wasn’t particularly surprised that we lost the case, but it was still disappointing.
Cosslett: Do you use shadow juries in your practice now?
Feldman: I don’t. Frankly, you’re molded by your early experiences. I’m probably more skeptical than most trial lawyers of jury consultants and that kind of an input. I still use them occasionally, but with a big grain of salt.
Cosslett: Did you continue to get that level of responsibility on subsequent trials at Mayor Day?
Feldman: After that case, I was still relatively junior—a third-year lawyer—and I continued to do general litigation work. It was lots of briefing, traveling, working for other attorneys, preparing materials for other attorneys. It was more traditional associate-level kind of work. I knew I wasn’t going to see a trial like that again soon, if at all. And I certainly wasn’t going to be before a jury or a judge for a long time in the level of responsibility that I had had before, so it ruined me for the practice of law in a big firm as a junior associate.
Cosslett: Most junior lawyers would say, “I’m going to go see what life at another firm is like. Maybe I’ll get more trial work somewhere else.” It’s unusual to hang out a shingle.
Feldman: I had never considered moving to another firm and really still liked Mayor Day a lot. I had just decided that I wanted to do more trial work on my own and see if I could make a go of it. It was a pretty big leap of faith, and through a combination of good fortune and some favorable jury verdicts that came pretty quickly after I left, I’ve been able to do it ever since. I’ve been pretty much a solo practitioner with an employee or two here or there since 1996.
Cosslett: When you first moved into your own practice, did you have clients lined up? Or did you open a shop, look out the window, and say, “Okay, I’m here!”?
Feldman: I took a couple of cases with me and began hustling for work. A lot of those cases were injury cases and some were commercial cases . They tended to be for smaller clients.
Cosslett: How do you hustle for cases?
Feldman: I think you hustle differently now than you used to, but back then you had cards printed out, you made phone calls, you called lawyers, you told them what you were doing, and you said, “Hey, if you’ve got a case or two that you need help on or you want to refer, I’m available.” You couldn’t be very choosy. But you still had to be careful about what you took because you were putting your money into it, as you usually took it on a contingency.
So I just started getting cases, and I did have a lot of support from my colleagues. One of the first cases that was referred to me was from someone in my class at Mayor Day. His father’s secretary’s husband was killed in a workplace accident. The family had hired a fairly well-known lawyer, and they weren’t happy with the advice that he was giving them about a settlement offer that wasn’t very much and a strategy of pursuing a safety firm as opposed to going after a construction firm. I said I’d try the case. So I took the case on, tried it, and obtained a gross negligence eleven-to-one verdict against a construction company that at the time was famous for never settling. This construction company had built, literally, almost every major roadway in the Houston area.
I was able to convince a jury that there was not just negligence but gross negligence, which was required in that particular kind of case. There was something called the worker’s compensation bar, so you couldn’t prevail in a lawsuit against your employer unless you could establish gross negligence. The CEO of this company had given an interview a couple of months before in the Houston Chronicle about how he never settles. I had him on the stand explaining to me about all the money he made on his various projects, at which point the insurance adjuster asked me to speak with him during the next break. We settled right then.
Cosslett: Were you tempted to just go for it? It must have been hard to put on the brakes and say, “Okay, we’ll take it.”
Feldman: It was the right decision for my client, and I’ve had to make those decisions a number of times in my career, especially when you have children involved. The good part about that case is that I did get a jury verdict. There were two phases to the trial. So I got an eleven-to-one gross negligence vote. In Texas when you have a punitive damages case, you have to have a second trial to determine the damages. And so it was just a question of how much at that point, and there would have been some amount that would have been dragged out on appeal for a long time.
I had that verdict within five or six months of hanging out my own shingle, and so people were very happy to refer me cases after that. I’ve always kept up a practice of both injury work and commercial work—more commercial work just now because of the way things are in Texas.
Cosslett: When you first hung out your shingle , were you married?
Feldman: When I first hung out my shingle, I was married with children. I took on about $30,000 of debt to start my practice, and had almost no savings. It was quite a risk.
Cosslett: How did your wife feel about your starting your own practice?
Feldman: She was a lawyer and we actually worked together at the law firm. She second-chaired that case with me, and many more after. She doesn’t actively practice any more, but she’s got a lot more work than I do. I’ll just tell you that. We have three children and a dog.
Cosslett: It’s never easy to make the decision to leave a law firm and a steady income. It’s a big decision when you’re junior, but I imagine it gets harder the more senior you become, because you have more commitments and obligations and can be walking away from a bigger salary.
Feldman: There have been times in my career when I’ve thought, “Okay, I want to partner up with a few other lawyers, or a lot of other lawyers, and take a little pressure off me sometimes,” because my workload and income can look like a sine wave. But I have a lot of freedom in the way I manage my time, and I don’t want to give that up. And then sometimes I have no freedom, when I’m in trial.
Cosslett: Given that you have such a broad-based practice , how do you get your hands around a subject area that is completely unfamiliar?
Feldman: First of all, you have access to experts, so they help you understand the technical aspects of the case. You talk to them and talk to other people about the issues. But at the end of the day, I think you have to remember that whatever the case is about, you have to present it to either a court or a jury, and they have to understand it as well. If you can’t present it at that level, then it’s useless information. You can have two super-smart experts arguing over esoteric points, and it’s useless in the setting of a jury trial. You have to be able to distill it.
How did I do it? How did I know as a young lawyer how to do it? I don’t mean to sound like I’m tooting my own horn—because I’m not nearly the best trial lawyer in the world, but I’m not the worst either. I think that there’s a set of skills that is very hard to teach and very hard to learn. You either have them or you don’t: being able to master a large body of documents; being able to take those documents and apply them to what you understand to be the law; keeping in mind what the jury questions are going to be; keeping in mind evidentiary issues that are going to come up; and keeping in mind that all this has to be done in front of a jury. You can practice and you can get better, but I think there’s a basic level of ability that you either have or you don’t. And if you’re in the first category, you’re a trial lawyer. If you’re not, you should do something else in the law.
Cosslett: When I think about the skill of a litigator, I think about the courtroom tactics and showmanship and in-court conduct. What is your courtroom style?
Feldman: When I think about style, I think back to an interview given by Michael Tigar and Dick DeGuerin . The two of them were representing the defendant in a high-profile criminal case, and Tigar was a huge showman, and DeGuerin was a tactician and a technician in court. They gave an interview, and when the reporter asked them a question, Tigar gave this big showmanship answer, and DeGuerin’s comment was, “Well, as you can see, our styles are a little different.”
They were representing the same person, and I was thinking, “At the end of the day, your style is really who you are.” I am a guy who will not let you get away with even a little teeny lie. I go after it. And so I have a pretty aggressive style in court and have no problem getting up on a high horse and making a jury argument. But it’s my style. It’s not anybody else’s style. It’s who I am. You can get better and you can learn to be a trial lawyer, but the ability to be an effective one is either in you or it isn’t in you. People might disagree with me, but I think that’s the case.
Cosslett: Yes, I have heard from other litigators the most important thing in a courtroom is to be who you are.
Feldman: I hate the word “litigator.” I don’t call myself a litigator. I try to avoid it all the time. “Litigation” to me means roadblocks before a decision, either before a judge or a jury, and a lot of attorney’s fees. And I tend to believe that a lot of that is for the lawyers and their billing. I like to call myself a “trial lawyer,” because I’m hired to try a case, not to litigate it. “Litigator” implies a lot of things that go on from the time a lawsuit is filed, or even before, to the time it’s resolved that, in my view, could be completely cut out in most cases. The word “litigator” smacks of delay, and expense, and unnecessary work. I’m usually up against litigators.
Cosslett: Can you describe the legal practice in Houston generally?
Feldman: It’s probably the most varied practice in the country. We’ve got the oil and gas industry, and there’s a massive amount of law work that’s done surrounding that industry. We’ve got the Texas Medical Center, which is probably the premier medical center in the country, and there’s a tremendous amount of health law work. There is a lot of organizational work and regulatory and research work relating to the relationships between the hospitals and the various insurance companies. We’ve got seven million people in Houston and we have no zoning, so there’s a lot of development work as well.
There are some massive firms in Houston. Bracewell & Giuliani is a Texas-based firm. It was Bracewell & Patterson, and then they asked Mayor Giuliani to join. Vinson & Elkins is historically a very large firm. Baker Botts is one of the oldest firms in the country. And then there’s usually a branch of any large New York or DC firm here, and a smattering of medium-sized firms and smaller firms. We have great trial lawyers in Texas, and Houston has become an epicenter for high-level trial work. Many of the lawyers who have practiced in Houston have really been trail blazers, such as Percy Foreman, Joe Jamail, and Rusty Hardin.
Cosslett: Do you find yourself coming up against the larger firms in your practice?
Feldman: All the time. I’m a solo practitioner, so I’m always against a firm that’s bigger than me.
Cosslett: Can you describe how commercial work comes to you and how your fees are structured?
Feldman: Typically, what will happen is there will be a small- or medium-sized-business person who finds himself in a commercial dispute of some sort. He will make his way either to a business lawyer that he knows or to some larger firm that he has heard of. But it might not be the kind of a case that is justified on an hourly basis with these big firms. Law firms can bill a tremendous amount of time and legal fees that small businesses just aren’t interested in stomaching. And so then I’ll usually be referred the case and talk to the person about the case, and I’ll either decide to take it or not.
A lot of trial lawyers that do just injury work wouldn’t be very comfortable going into a copyright case or a big commercial case, but I did start out in an academic setting, both at the law review and clerking for the Court of Appeals, and then did mostly commercial work for the first four years of my practice. I’m very comfortable looking at different kinds of cases.
With regard to my fees, sometimes I will work on a blended rate, where I’ll be partly compensated by the hour and partly on a contingency. Sometimes I’ll finance the case entirely, or sometimes the client will partner with me in the financing of the case. And fortunately I’m in a position where I can choose from any one of those possible structures.
Cosslett: I understand that you also work for some Fortune 500 companies. What kind of work do you do for them?
Feldman: Sometimes a corporate counsel will have a certain budget and they get in disputes that are going to be very costly to litigate—that bad word again—on an hourly basis. I’ve been fortunate enough to be able to step in and take such cases on a contingency and do well by them. I think everybody’s happy because they’re not having to pay out fees that strain their annual budget in order to prosecute a lawsuit.
Cosslett: What other cases do you have on your desk?
Feldman: Well, right now I should be briefing a sovereign immunity issue in a multimillion-dollar lawsuit that we have filed in Florida against the government of Belize over telecommunications equipment that was owned by my client and leased to the government. We’re suing the government of Belize in Florida federal court, and they’ve claimed they’re immune from the suit, notwithstanding the clear language in the contract that says they aren’t. I am filing that brief in a couple of days and having to work very hard on it. We’ll have a hearing and I’ll have to go to Florida. The trial won’t take place until later, but it’s a very large set of legal issues.
Did I know anything before I took this case about Belize law or the Florida sovereign immunities act ? I knew generally about sovereign immunity, but I feel confident enough that I can research the law and determine, “Yes, I think we’ve got jurisdiction and we’ve got a good commercial case.” I know a lot about UCC [Uniform Commercial Code] Article 2A leases, and I know that my client is owed money on the lease. So I’m going to invest in that case. There is a lot of money at stake.
I can also give you another example. One of the expert witnesses I dealt with on very first case I worked on at Mayor Day stayed in touch with me. He called me because he thought one of his customers was infringing on software that he sold him. We filed a copyright infringement case in federal court, with Vinson & Elkins on the other side in Houston. That case has been active on my docket. Additionally, I have injury cases all over the country and a slate of drug cases, which I’ve acquired through advertising.
Cosslett: In the drug cases , are you representing the drug manufacturer or the people injured by drugs?
Feldman: The people who have been injured by drugs. I’ll put money into an advertising campaign, and I’ll start fielding calls, whittling them down to meritorious cases, and determining how best to represent them.
Cosslett: Are these class actions ?
Feldman: They really aren’t class actions. These kinds of cases are mass actions, so they’re almost always sucked up into multi-district litigations somewhere in the country.
Cosslett: You also get involved in medical malpractice cases ?
Feldman: Medical malpractice was a large part of my practice for a long time, and I had an advantage there because I had a brother and a father who were doctors, so I could always get advice about whether this was a case or not a case. I was careful in the cases I took—more so than most lawyers. I wouldn’t take a case unless I really, really felt strongly about it, because I don’t particularly enjoy suing doctors. I don’t think a doctor ever means to hurt somebody but that said, there were cases that I felt were important to take.
That work, as everyone will tell you, pretty well dried up after a series of draconian tort reforms in Texas that were supposed to do a number of things, including lower healthcare costs and make health care more accessible to the poor. It’s done neither of those things, but it has pretty much made it impossible for stay-at-home parents, children, and elderly to sue for medical negligence in the state. So really, unless you have a big lost-wage claim or are hurt in such a way that the medical bills in the future are millions of dollars, those claims aren’t really viable anymore. So I don’t do much of that now. I still take them on, even medium-sized cases because I just feel like sometimes I need to because the client really needs it, but it’s not nearly as much of my practice as it was.
Cosslett: How do you balance taking the cases you want to take on because you really believe there’s been an injury or an injustice with the need to bring income into the firm?
Feldman: You try to justify some of it in your head. Any time I’ve taken a case that I thought, “Oh well, I can make some money on this case, but it’s kind of cheap or cheesy,” I’ve regretted it. And I just don’t do it now. I told myself I would never sue an obstetrician over an injured baby, and I never have.
Those can be very lucrative cases. And to be honest, you can really wind a jury up over those cases. You can say, “Golly, you see on this readout that the blood pressure and heart rate started going up. Why didn’t you do a C-section right then? Shouldn’t you have done that?” You’re going to find an expert to testify that the doctor should have done a C-section sooner. Those doctors are really using their best judgment. They’re not trying to deliver a baby that’s injured and they’re not usually being careless or negligent. So I’ve just never taken those cases.
There have been cases where someone has come to me very seriously injured, and I won’t know about the medical issue, but I’ll take the time to find out about it and talk to experts about it. And I may come to the conclusion that this is just a very unfortunate set of events. And I will tell them, “I can’t take this case because this is what I think happened. I don’t think anybody committed malpractice. I know it sounds awful, but let me try to explain to you where I’m coming from.”
And I think in many instances the clients will appreciate that and may recognize that there was no malpractice and may just move on with their lives as best as they can. I don’t just take the case because there’s a horrible injury, which, unfortunately, many lawyers do. It doesn’t really happen as much as the tort reform bar wants you to think it happens, because the lawyers that do that go broke.
Cosslett: Because they take cases where there’s not a villain?
Feldman: You could have a bad injury, but the insurance companies are going to try that case if they’re solid on liability, and almost always they will win that case. So you have to have the experience to know when to say no to a case. And that’s hard to learn. But it is important to learn.
Cosslett: They teach you in law school that there’s not necessarily a remedy for every wrong.
Feldman: That’s true.
Cosslett: Are there any areas that you find particularly interesting in your practice?
Feldman: Personally, I have a need to untie a really tight knot, and if it’s a complicated case with a lot of issues that seem pretty difficult to present, I enjoy being be able to untie that knot in a way that can then be presented to a jury and hopefully won. So, for me, complexity is what gets my juices flowing: being able to take a complex transaction and distill it into, “This person did right. This person did wrong.” And being able to explain that to a jury. Those are hard things to do and especially hard to do because there are a lot of legal obstacles between taking a case and getting it to a jury. So, if it’s a difficult case, I like to take that challenge.
Cosslett: Are there any cases that you’re particularly proud of?
Feldman: I’m particularly proud of a lot of cases. In the medical malpractice field, I think I’m the most proud of a malpractice action I brought where I represented the orphaned children of a single immigrant mother against a group of physicians at Baylor College of Medicine. The Texas Department of Child Protective Services was actually my client, because the children became wards of the state after their mother died.
I don’t think the physicians meant wrong, but they made some very serious mistakes. The mother was misdiagnosed with a disease, but the medicine given to her to treat that disease allowed a parasite to fulminate, and she died of a massive hyper-infection, literally eaten from the inside out over a six- or seven-week hospital stay. It was a very contentious case. I took that case to a jury and won it. It was probably one of the hardest cases I’ve ever taken on. It was really a horrible, horrible case and I won it fair and square. I enjoyed that case.
There was another injury case I worked on, but it was commercial in a way. I represented a guy who had private insurance through a large carrier, and eleven months after he had bought this policy, which he had bought because he was going abroad to work, he was diagnosed with a very severe form of esophageal cancer. The insurance company rescinded his coverage, which you can’t do now, under the Affordable Care Act. They rescinded his coverage because they alleged he didn’t disclose a malady that he didn’t even know he had. It was literally a life-and-death situation, where if he wasn’t going to be able to get surgery, he was going to die. And even if he got the surgery, it wasn’t clear that he was going to make it.
I was able to sue the insurance company on an emergency basis in federal court and, in short order, reverse the decision and have them pay for surgery that actually did save his life, against all odds. The survival rate for this kind of cancer, especially as advanced as his was, is usually less than a year. It’s been three or four years now and he’s still alive. He’s able to eat food and is no longer on tubes, and, as far as he can tell, the cancer’s gone.
Cosslett: He must come by your office once a week just to hug you.
Feldman: You’d be surprised. Not many people do. They move on with their lives. I hear from him every now and then. So that was a commercial case, but it also involved injury. I’ve also represented businesspeople whose businesses are going to go bust if they don’t win this case. And I’ve won these cases for some of them. Those are all pretty satisfying.
Cosslett: In terms of your trial work, what percentage of your cases go to trial? Would it be fair to say that one in ten cases end in trial? One in twenty? How often do you settle?
Feldman: I try to settle all that I can because it’s almost always in the best interest of my client. There is usually a lot of risk and a lot of expense involved in a trial. The client ends up paying for it at the end of the day, anyway, so it’s best to settle if you can. But sometimes you don’t have a choice. Because I’m just one person, the most I’ve done in a year is four or five trials. And then there might be a year where I do zero, and then it could go nuts again.
I would say one in ten cases get to trial, maybe less. It’s hard for me to say. I don’t take easy cases. There’s usually a lot of money at stake, so the odds of them having to be resolved by force, with guns blazing, is higher than in a lot of cases. I don’t take car-wreck cases in general—those cases settle much more often.
Cosslett: What are the pluses and minuses of being a solo practitioner?
Feldman: The pluses are the same as the minuses in my view. Your opportunity for financial reward is probably bigger than it is at a large firm. At the same time, your opportunity to lose money is there as well. Your time constraints are different. You can take three or four weeks off if you want to. I don’t think you can do that at a big firm. At the same time, there are times when I can’t take any time off, and I don’t see my family. So it runs the gamut. So the things that are good are also the things that are bad.
Cosslett: After almost twenty years in practice, what continues to motivate you?
Feldman: Right now what continues to motivate me is three children in private school , one of whom boards, with college coming up shortly. Plus car insurance for my oldest.
Cosslett: What advice would you give law students, or practicing lawyers considering a career change, about becoming a trial lawyer and about hanging out their own shingle?
Feldman: The most important advice I can give is to be sure that you have a network of colleagues and friends that have more experience than you do about any particular case, so that you can be sure when you take a case that you have someone to talk to about it—so that you’re not out there on your own. I’ve been fortunate enough to be able to do that. People are always very happy to help.
To the extent that you can get involved with other firms on cases, I think that’s really, really important. Finance-wise, it’s really pretty obvious. You need to take cases that aren’t going to bust you. And you need to be able to turn down a case that you can’t reasonably handle, or you should get help, either on the finance side or otherwise.
So the nature of hanging out your shingle on a plaintiff’s-side firm like mine is that there’s a lot of risk involved. If you can mitigate that risk by taking hourly cases, that helps. You don’t need a fancy office. Even sophisticated clients really don’t care too much about that. Keeping your overhead down is important starting out. Just try to mitigate your risk at all levels.
Cosslett: Are there any issues of professional responsibility that come up for you regularly in connection with your practice?
Feldman: All the time. There aren’t usually the kind of conflict issues in my practice that lawyers have in big firms, because if I have a client, I’m unlikely to have a conflict with the defendant. Sometimes I do, but those are easy to figure out. When I represent injured people, though, there are a lot of professional responsibility issues because sometimes I’m representing minors, or sometimes I’m representing unsophisticated people. You have to be able to give them advice. Sometimes they don’t want to hear advice about what they should be doing with money if they get it, or whether they should settle or not.
There are also professional responsibility issues involving representation of multiple clients in the same case. You have to be careful about how you allocate expenses and have everybody agree to it. I’m usually very, very careful about these sorts of issues, but they are a part of my practice.
It is also important for a solo practitioner to have somebody who knows disciplinary rules and be able to call them and ask their views on things. Not to make those decisions on your own is important. I can take a risk on the merits of a case and make a strategic decision and live or die with it on my own, but I almost never have a professional responsibility issue that I don’t ask another lawyer about.
Cosslett: That’s good advice for sure.