Certain companies in America—some more frequently than others—find themselves in such high-profile, high-stakes litigations that they need to assemble a cadre of trial lawyers with the experience, the savvy, and the gut-set to defend what some would consider the indefensible. These are lawyers who take the “bet-the-ranch” cases: the cases that, if lost, would have severely negative financial and reputational consequences for their corporate clients. James F. Sanders is one of those lawyers. Trained by Jim Neal, one of the most highly-regarded corporate defense lawyers of his time, Sanders’ most notorious client is likely Exxon Mobil Corporation, which he represented most publicly in the Valdez oil spill litigations and more recently in the 2006 Baltimore gasoline leak cases.

As a person and as a legal tactician, Sanders is not without contradiction. He is an avowed Yellow Dog Democrat and ex-hippie who enthusiastically defends big oil, big insurance, and big pharma. As a lawyer, he rues the increased tendency of litigants to settle cases without going to trial as a diminishment of the democratic process. Yet, as a corporate defense lawyer, he recognizes that he has to “redefine winning” when it comes to the challenge of persuading a jury of the plaintiff’s peers to decide in favor of a “bloodless entity.”

Sanders took his BA from Vanderbilt University and his JD from Vanderbilt University School of Law. He was a law clerk for the Honorable Judge William E. Miller of the US Court of Appeals for the Sixth Circuit and for the Honorable Judge Frank Gray, Jr., chief judge of the US District Court for the Middle District of Tennessee.

Clare Cosslett: I am with Jim Sanders in the elegant offices of Neal & Harwell in downtown Nashville, Tennessee. Looking out of the windows, I can see the Cumberland River meandering along in the foreground, and in the distance, through the rain, a cloud-covered mountain range. It is a beautiful view.

Jim Sanders: You did a good job pronouncing “Tennessee .” You almost got it right.

Cosslett: Not bad for a New Yorker? Were you born and raised in Tennessee?

Sanders: I grew up in Johnson City, Tennessee, and what people find inter­esting about my family is that a couple of generations back, in the 1880s, my great-grandfather and my great-great-uncle were brothers, and they were both politically active. It was one of those parts of the South where politics divided within families: one was a Democrat, the other was a Republican. And they were both accomplished speakers. In 1886, they each secured the nomination of their party and ran against each other for the governorship of Tennessee. They didn’t have much by way of funds, and so they traveled together throughout the state. There are wonderful stories about how they swiped each other’s speeches.

Cosslett: Who won?

Sanders: The Democrat won , but the Republican, who was my great-grandfather, ultimately became governor of Tennessee in 1920. His brother, Bob, became governor, and then a US Senator. He was influential in the Progressive movement at the turn of the century. My great-grandfather had ten children and of those ten, two were lawyers: one was Bob Taylor, a federal judge in Knoxville. There was also a younger brother, Ben, who died young. Supposedly he was a better lawyer than Bob. That’s the background of the family on my mother’s side. My father got thoroughly sick of hearing all that. I would ask him about his people, and he would say, “They were horse thieves in Virginia.”

Cosslett: What did your father do?

Sanders: He sold International Harvester farm equipment. Not many big farms in Johnson City, Tennessee. He had served in the Army in World War II and he did not like taking orders. So when he got out of the Army and was going into business, he didn’t want anyone telling him what to do. He founded a business with a partner, and he chose that business more because he could be the boss than because he loved farm equipment.

Cosslett: When you were growing up, was it assumed that you would be a lawyer?

Sanders: Not at all. Uncle Bob, being a federal judge in Knoxville , had almost no influence on us. It might as well have been the moon from Johnson City to Knoxville in those days. He was very busy and very important, and I rarely ever saw him.

I decided to be a lawyer when I was in high school. I was lucky. I knew what I wanted to do pretty early on.

Cosslett: Why Vanderbilt Law School ?

Sanders: As I mentioned, my father was not a business magnate, and I knew that if I was going to go to a good college, I would need to get a scholarship. I was an athlete in high school, and I was probably better at football than anything else. I had a wonderful teammate who became the Heisman Trophy winner at the University of Florida. He was the quarterback and I was the only kid on the team who could really catch the football, so we were a duo and I got several scholarship offers. I made a calculated choice and went to the best school that I could go to, regardless of the football team. That got me to Vanderbilt undergraduate.

When I got ready to go to law school, I was not flush. I was accepted at Vanderbilt. I could get a partial scholarship, plus I could be a resident advisor in a dormitory and get my room and board paid for. So it was a very easy choice for me. I was lucky to have Vanderbilt as an option, because it was considered a very good law school.

Cosslett: Did you enjoy law school?

Sanders: I liked law school as an intellectual exercise. What I didn’t like was the preoccupation with grades and class standing. I was counterculture enough to not like that. Also, it was hard going to law school and being a dorm advisor. You’re different from most of the people who go to an expensive private school . And law school was somewhat removed from what interested me about practicing law. I always wanted to be a trial lawyer and I was interested in learning how to try cases.

I was also very interested in the role of law in improving society. I grew up in a de facto segregated community—this was in the early sixties in Johnson City. There was no animus behind it. It just was what it was. We had a black high school and a white high school. The ballplayers were friendly with each other. We’d go to their games. They’d come to ours. We’d have sandlot games.

When I came to Vanderbilt, all of the issues of race that were on the nightly news suddenly came a little closer. It became an important issue for me as I went through undergraduate. I became cause-y.

Cosslett: If you weren’t cause-y in the sixties you weren’t paying attention.

Sanders: I viewed practicing law as an instrument of beneficial social change. One of the things that always fascinated me was criminal law. I believed that most people who were charged with offenses were innocent and I wanted to see justice done. When I was in law school, I volunteered to visit the prison and talk to prisoners. In the summers, I would help represent inmates with habeas corpus petitions. I was also interested in constitutional law.

Cosslett: You got caught up in the draft in the late sixties?

Sanders: My law school class was to graduate in ’70. Around December of our first year, the Selective Service took away the 2S deferment for law students. So my whole class was presented with, “You are not going to get to finish law school on time because of the draft.”

I got through the first semester of law school. My grades were pretty good, and then we get hit with this news. I ended up getting into the ROTC so that I could finish law school and not get drafted.

Cosslett: No wonder you didn’t have fun in law school.

Sanders: It made a difference. And then of course, on top of that, we had all that was going on in Vietnam and Cambodia . It was a bad war for the wrong reasons. It made me very antiestablishment, naturally. Even the more conservative guys in the class got a little ticked off about what was happening.

Cosslett: When you were in Seattle with the ROTC, you worked at the public defender’s office?

Sanders: My assignment in Seattle was with an induction center, an Armed Forces Entrance and Examination Center , known as AFEEC . It was a job that certainly didn’t require a whole lot of work and thought. I still wanted to be a lawyer, representing criminal defendants, so I volunteered for work in the public defender’s office while I was in the Army. I worked for free and I got involved in some interesting things, including a couple of small municipal court trials.

Cosslett: You also did a clerkship right out of law school?

Sanders: After law school and before going into the military, I clerked for about six months with a Sixth Circuit judge. It was an interesting coincidence. The law clerk he had selected avoided getting drafted by going into the National Guard. It turned out that part of his National Guard obligation was in the first half-year of his clerkship. So Judge Miller needed a law clerk for that time.

One of the reasons I got the clerkship was that Judge Miller was originally from Johnson City. He knew my family. He was a Republican appointee that they had sent down to Nashville, which did not sit well with a lot of Democrats. It turned out he was absolutely a great judge. And those who came to scoff stayed to praise.

I worked with Judge Miller in Nashville and Cincinnati, and then I had to go into the military. While I was in Seattle and volunteering for the public defender’s office, another clerkship back here in Nashville came open. Judge Frank Gray was the chief judge at the time. He was a good old Democrat and was Estes Kefauver’s confidant and political campaign manager. That’s how he got to the judgeship. I got out of the Army a little bit early and I clerked for Judge Gray for three years.

Cosslett: That’s a long clerkship.

Sanders: Yes, he had to run me off. I loved him. I was his only clerk, so I felt like I was the assistant judge. I wrote a bunch of opinions and I was drunk with power. It was a great experience. Nashville had an inordinate number of really fine trial lawyers, one of whom was Jim Neal. And I got to see some really good lawyers practice law, and that fanned the flame of what I wanted to do. But I decided that, “I don’t want to stay where I am and network. I want to see how I will do practicing law where nobody knows me. And I’m going to represent indigent defendants.” So I got a job back in the public defender’s office in Seattle in the Felony Trial Section. My goal was to do something good for society and try cases, and I did. It was a great experience and I did that for two years before coming back to Nashville.

Cosslett: Why did you return to Nashville ?

Sanders: I didn’t see the caliber of trial lawyer doing the kinds of cases that I was seeing when I was clerking with Judge Gray. I wanted to learn to be a really good trial lawyer, and if I stayed in Seattle, I was only going to get as good as I could by pulling myself up by my own bootstraps. I wanted to be on a faster track. So I came back to Tennessee and, ultimately, Jim Neal and I got together in representing a defendant. I joined the firm in’ 78 and became a partner the following year.

Cosslett: What was the firm’s practice when you joined?

Sanders: Our niche was big-time, white-collar criminal defense. We also had a significant local practice that was spearheaded by Aubrey Harwell. There was a lot of local work and also a lot of transactional work.

Cosslett: Did you do any soul searching when you moved from indigent defense to a white-collar criminal defense practice ?

Sanders: I used to get made fun of by some of my adversaries, saying I sold out. My response was that some of our cases turned out to be representing people who didn’t have enough money to pay.

Cosslett: So it was, in fact, indigent defense.

Sanders: I liked private practice better than public defense . It’s necessary to have some control over your client, particularly in a criminal case, and the first thing you had to do as a public defender was to convince the client that you were, in fact, a real lawyer.

If you don’t have respect, it’s hard to get control, and I spent two years learning ways to get control so that I could adequately represent my clients and do the best job I could do. When somebody hires you, they give you credibility and you can only lose that. You don’t have to gain it. So it was still the same sort of work, and it was still fighting against injustice. But public defense is a harder life, because when you lose, your client goes to jail. And that’s terrible. If you cannot take that on a regular basis, it’ll kill you.

Cosslett: Jim Neal , the founder of this firm, obviously had an extraordinary career.

Sanders: He was an extraordinary lawyer. He started his trial career on the Hoffa task force for Bobby Kennedy, and he prosecuted Jimmy Hoffa here in Nashville. Judge Gray and Judge Miller were on the bench at that time. It was a two-bit labor misdemeanor violation prosecution, a nitpick sort of thing. And Hoffa and his group tried to bribe the jury.

Cosslett: What was Hoffa doing in Tennessee?

Sanders: They bought into some trucking company here, in violation of the National Labor Relations Act provisions. Rather than admit they’d done wrong and take a misdemeanor settlement, they wanted to fight. Bobby and Jimmy were alike in that way.

Jim Neal had a couple of friends that promoted him to Bobby Kennedy, and Kennedy chose him as the trial lawyer in the case. So Jim tried that case, which resulted in felony charges for jury-tampering being brought against Hoffa and others. It was tried down in Chattanooga, in front of one of the great district judges of that generation, a guy named Frank Wilson, who was a fine judge, impeccably honest—as were the two up here. One of the problems Hoffa had was that he wanted to bribe the judge, but he couldn’t find a single person in all of middle Tennessee who even would consider going to one of these judges to try to bribe him.

So, Jim Neal secured the conviction of Hoffa, and then went on to become a US Attorney. But his work as Special Deputy to Bobby Kennedy was the foundation for Archibald Cox and then Leon Jaworski to say, “This is the guy.” Jim became part of the prosecutorial team during Watergate. And, of course, almost everything that Jim got from that point on was the same sort of thinking: “If it’s important enough for us to get it done right regardless of what it costs, then Jim Neal’s the guy we want to represent us.”

Cosslett: It’s interesting that “the powers that be” went outside the inner circle of Washington to find him.

Sanders: In those days, the inner circle didn’t have geographic limits. The guys who were considered to be the trial lawyers—“If it’s really important, you’ve got to go get this guy”—were in a certain circle, but it wasn’t just on the East Coast.

Cosslett: Jim worked on some pretty high-profile cases. He defended Ford Motor in the criminal case relating to the Pinto design. He represented Dr. Nichopoulous, Elvis Presley’s doctor in connection with overprescribing drugs. And there was a case that I understand you worked on with him extensively: the Twilight Zone case.

Sanders: Do you see that picture behind my desk? It is a scene from the pre-movie mockups. John Landis was the director of Twilight Zone: The Movie. There was a scene that called for a US helicopter to attack a small Vietnamese village. This racist, terrible character played by Vic Morrow, in his moment of redemption, was going to scoop up two Vietnamese children and carry them across a stream to save them from this helicopter attack. During the filming of the attack, the helicopter went down and beheaded Vic Morrow and the two children. So—and this was before OJ, but in typical Los Angeles style—the prosecutor decided to make a criminal case of it, a Hollywood trial. They charged John, his administrative guy, his producer, the helicopter pilot, and the stunt coordinator. The charges were homicide and two different theories of manslaughter. Jim was, at the time, trying the Edwin Edwards case, so I was doing most of the witness prep and preliminary work for Twilight Zone out in California while Jim was in New Orleans. Then we tried the case together. We started selecting a jury after the 4th of July in 1986. We ended the trial with a verdict in favor of all defendants on May 29, 1987. We were in LA on trial for almost a year. That was a hell of an experience.

Cosslett: Did you feel your background as a public defender and your clerkships prepared you well to join a firm with a rigorous corporate defense practice?

Sanders: There’s nothing more strenuous, stressful, or demanding than representing criminal defendants in felony trials. And if you’re doing a lot of that, then chances are you can do damned near anything.

Cosslett: What did you want to learn from Jim Neal when you first joined the firm?

Sanders: What I wanted to learn was how to practice law like Jim Neal—like one of the best trial lawyers in the country. I was hoping to try cases side by side with Jim and learn how it’s done at the finest level. That’s what I wanted. During the first few years, I got involved in as many of his cases as I could get involved in, and did as much as he would let me do. And he was wonderful to me in that respect, because he knew that I really wanted to do this and had some capacity to do it. And while he may not have had succession in mind, I do think he saw the need to have someone there to help as he went along. I became the guy who not only would help him get ready for trial, but also would participate in the trial, and then ultimately become his co-counsel. Indeed, we shared the closing argument in the Twilight Zone case. We shared the closing argument in two stages, the liability phase and the punitive phase, of the Valdez case. So I had a very unique opportunity. I think that’s how you learn. You’re not going to learn until you’re actually doing it.

Cosslett: Can you talk about defending Exxon against charges resulting from the Exxon Valdez Alaskan oil spill ?

Sanders: Let me start with my personal take on this situation. When the decision was made by Congress and the country that we wanted to have Alaskan oil and we wanted to have a pipeline, it is inevitable that if you do that, given the area you’re dealing in—Alaska is one wild environment—and if you’re going to transport that oil from the Port of Valdez in Prince William Sound out the Gulf, you’re going to have some accidents. It’s absolutely inevitable. But when an accident does happen—and it was an accident—everyone throws up their hands and says, “We’ve got to have a villain. They’re going to have to pay.”

Cosslett: If a tanker full of oil runs ashore or a pipeline ruptures, the consequences are devastating to people and to the environment. There may be fault, there may not be fault, but people look to those responsible to use superhuman efforts to prevent catastrophic accidents from happening in the first place.

Sanders: We want an easy answer, and we want not to accept responsibility for the decisions we make. And so rather than accepting responsibility and saying, “Okay, this is what we should do differently now that we’ve learned this lesson,” we say, “But it wasn’t our fault. It was Exxon’s fault.” And to me, that’s the sad thing about it. We absolutely repeat all the mistakes of the past. Tell me what sense it is to go into Iraq, for a country that’s gone through Vietnam? What are we learning? And ten years from now, I fear we’ll probably do the same thing again.

Cosslett: Do you, as a self-proclaimed former hippie, ever think, “Am I on the right side of this thing?”

Sanders: I don’t have moments in the middle of the night where I anguish over these things, but I do think about things like that, and the truth is I believe I am more effective at doing good with the power—whatever that is—as one of Exxon’s lawyers to get things right than I would be if I were screaming in the darkness out on the barricades.

Cosslett: How did you establish a relationship with Exxon?

Sanders: I got into this because Exxon made the same decision on Jim Neal in the Valdez case that Leon Jaworski and Archibald Cox made in the Watergate prosecution, and Ford did in the Pinto case. They said, “We’ve got to have him.” So I got to participate with him in those cases, and I got to participate in a meaningful way. I was trying the cases with him. So I then got to know their lawyers and they got to know me, and if you’re in that kind of case, then the general counsel, and half the board, and all of the management committee knows who you are and know how the case is going. They’re paying attention, and they certainly have a lot of questions. So if you get that opportunity and you meet their expectations, then when something really bad happens again, they think to call you.

Cosslett: Do they think of you for particular kinds of cases? They’re not hiring you for employment discrimination cases or personal injury cases. They’re hiring you for environmental disaster cases.

Sanders: It’s the magnitude of the case as opposed to the type of case. I have worked with two or three generations of general counsel at ExxonMobil, and I believe that they think, “If you can try this kind of case, then if we give you enough help and support, you can try that kind of case and that other kind of case.” So I’ve done everything from patents, to the Valdez disaster , to the two cases in Maryland in 2006 involving a gas spill into a residential neighborhood. We’ve had two huge trials relating to the gas spill outside of Baltimore—one for five-and-a-half months, one for six-and-a-half months. One turned out relatively well. The last one was an utter disaster. They are both on appeal in the Maryland state court system.

And then there are some other things I can’t talk about. Some of your best work in this kind of practice nobody ever finds out about.

Cosslett: Is there a type of case that you like to litigate?

Sanders: I don’t really care so much about the subject matter. Some subjects are harder to learn than others. Some cases take more work than others. Some are harder to try to explain to a jury than others. What I like is the trial work.

Cosslett: Your clients have included Exxon, General Motors, Morgan Stanley, Corrections Corporation of America, Mass Mutual, Ingram Industries, and Purdue Pharma. Big companies who come to you when they’re faced with big litigations. There are a lot of other lawyers out there. Why are these companies coming to Nashville, and why are they coming specifically to you?

Sanders: They came to Nashville originally because of Jim Neal. Period. Let’s call it the Archibald Cox–Leon Jaworski effect . And once they hired us, they came to understand that there are a number of lawyers in this firm who were trained either directly or indirectly by Jim Neal, who know how to do things the way Jim Neal did things.

So I think that’s why we continue to get that business. Now, the problem with that is you’re only as good as that last case. So you have to perform. And it’s a pretty tough measuring stick. These guys are sophisticated. And they’re paying attention. So if you don’t deliver, then that’s the end of it.

Cosslett: Can you estimate how many firms these huge companies utilize for litigation?

Sanders: It depends on the nature of the litigation. Let’s say hypothetically that you are general counsel at Exxon, and you’ve got maybe a half a dozen firms that you generally go to for big cases. There may be a smaller subset of those firms that you go to in what’s loosely called “bet-the-ranch” cases . Well, if you happen to have two bet-the-ranch cases going, then one of your go-to guys is unavailable.

Cosslett: How does a thirty-person firm handle a huge corporate litigation ?

Sanders: These corporations, particularly Exxon, have a group of law firms around the country that have developed expertise over the years in the kind of business that Exxon does. There are a couple of firms that are literally experts across the board in underground storage systems. So if Exxon gets in a case involving the failure of an underground storage system, that firm is a resource for us. And, of course, you’ve got all the engineers and scientists that make ExxonMobil what it is. They generally can either give us the answer and explain it to us, or find somebody we can go to to get the answer. So we have all these resources. The thirty-person law firm doesn’t do all that. We usually have two or three different firms working with us. We’ll more than likely have a New York firm because you always need one of those. And then you want to have local lawyers. And then you’ve got the in-house lawyers.

What you’re really doing, particularly in these big cases, is creating a new law firm. And you’ve got to run your side of the case as if it’s one firm that’s transparent. And it’s seamless. So then the issue becomes—and this is an issue I had some trouble with—somebody’s got to be in charge.

When I went to the first Baltimore trial, even as lead attorney, I was reluctant to be in charge of everything because I knew so little about some of the things I was supposed to be in charge of. As the trial went on, however, I realized it was my responsibility as lead attorney to be in charge and take charge. When it hits the fan, it won’t matter that someone else was in charge of a particular part.

Cosslett: As the trial lawyer, are you making the decisions as to strategy and the way evidence is presented and what witnesses are brought in?

Sanders: If I’m doing my job right, I am the person who is deciding those things that the lawyer decides, and recommending on those things that the client decides. But I am listening to what everybody else has to say. And it’s not an ego thing. It’s my ultimate responsibility to make this call, but I’ve got to make the right call. And if it’s somebody else’s idea, then that’s great.

Cosslett: So the bigger and more complex the case, the greater number of lawyers with different areas of expertise?

Sanders: Right. A high-profile case tends to be more complicated than a regular case, although there are huge areas of similarity. They all try about the same. But there are orders of magnitude of complication that have to be mastered and then boiled back down into a way that the case can be tried.

Most disasters involve something akin to that expression, “a perfect storm.” It is never just one thing going wrong. That’s why these are accidents and not designed. Just one thing going wrong will not produce a twenty-six-thousand-gallon gas spill into a residential neighborhood using well water. Nor can a ship hit a well-marked reef and leak all that oil with just one thing going wrong. You’ve got to understand all the complexities that led to what happened. And then the consequences of what happened in the aftermath. You’ve got to master the life-cycle of a salmon. You’ve got to know something about carcinogenicity and what chemicals do what and at what levels. It gets very complicated.

Cosslett: You are working in an environment where there’s a huge amount of anger, both from people who are personally affected by the accident, and from people who view you as the villain on a national stage. Your client has done something really bad, albeit accidentally. Does being in the spotlight add significant stress?

Sanders: You don’t spend a hell of a lot of time worrying about how it’s being taken by the media anymore. But you do have to take public opinion into account, because those jurors—as hard as they try, and they generally try hard, and generally do a good job—come in off the street just like everybody else and they have likely been exposed to what is in the media.

And ExxonMobil’s not very popular. And juries are inclined to hit you: “You need to be punished. We don’t like you. We don’t like paying this much for gas. We don’t like you screwing things up like this. You’ve got a lot of money, and we’re going to try to make it hurt.” So what you have—and what causes a lot of the stress—is not so much what the outside world is thinking about the case you’re trying. It’s the fact that you have no margin of error. You make one little mistake in the way you phrase something in a question or in an argument, and they will seize on it.

Discovery in these cases is particularly stressful for me. It seems the purpose of discovery is to have that ten-second sound bite. They will spend $5 million taking depositions to get a ten-second sound bite, and then they show that one in the argument.

Cosslett: How do you get a jury away from: “You are charging me too much for my gas,” or “You’re a big company—you’re not going to feel it anyway,” or “My neighbor can’t fish down there because you polluted the water.” How do you get the jury from that mindset into a more neutral place, where they can hear the facts without getting angry and necessarily deciding against you?

Sanders: What I do—sometimes with more success than others—is appeal to their character, to their responsibility as jurors : “You’re not a person in a cocktail lounge listening to a story. You’re a juror.” You don’t lecture them on what their job is, but you appeal to that sense that I think all of them have, that this is a higher calling, to be a juror in a civil trial or a criminal trial. And I think most jurors try to meet that obligation. I think they take it very seriously. I think in big cases, they do want to serve. Now, the reason they want to serve and how you can use that to make them behave right is a little tricky at times. There are two things I try to do. Number one is I try to appeal to their better side. And if they will do that, then that playing field gets leveled out some. The second thing I want them to do is to like me enough to give me a chance to earn their respect and to have credibility with them. So I’ve got to get them in the right mood as jurors.

Cosslett: How do you get them to like you?

Sanders: You shoot straight with them. In the first Jacksonville trial , the jury had to listen to—it felt like three days but was probably only a day and a half—of the plaintiffs’ opening. Their lawyer was rather bombastic. When I stood up I said, “You know, there are an awful lot of things I could say in response to all that you’ve just heard, but the first thing I want to tell you is the most important thing. We’re sorry.”

Cosslett: You’ve put everything out there right at the beginning. If they don’t believe you right then, then they’re likely not going to believe anything that comes after that. But if they believe you then, you have a better shot of them believing your case.

Sanders: I think that’s part of being a trial lawyer. You have to be willing to put it all out there and to not be thinking of ways to make excuses or to hold back. You have to get in the box with them. You have to put yourself on the line and be willing to do that. And then you shoot straight with them, and I think they appreciate that.

Cosslett: How many times in the course of the trial did you say, “I’m sorry”?

Sanders: In this case, it was fairly important to me to draw a distinction between those people that had suffered some damages that we caused and those that did not. So I apologized to those that I knew we had damaged. And then I apologized again in closing. And it stunned the plaintiffs’ lawyers , and they spent a lot of time in helping me out by calling into question the sincerity of my apology and my client’s apology. So they kept that apology at the forefront. That was not a great strategy for them.

Cosslett: Do you find in a lot of these big trials that separating the legitimate plaintiffs from the illegitimate plaintiffs is an issue?

Sanders: It is a huge issue, and I have to tell you, we haven’t gotten there yet. We haven’t figured out a way. We haven’t gotten a jury to draw those distinctions in the Jacksonville case.

Cosslett: I think it’s a hard distinction to draw. Once there’s a wrong, I think juries would tend to sweep people into the class of injured parties.

Sanders: We try to delineate. “Here’s the inner circle. Pretty sure we’re responsible for those. And then you have this outer circle, and we’re damned sure we’re not responsible for those. And here’s this gray area.”

Cosslett: And you run the risk of alienating the jury if you start trying to pick off plaintiffs.

Sanders: It’s risky.

Cosslett: What’s the difference between a trial lawyer and a litigator?

Sanders: There are thousands of litigators . They take depositions. They file motions. And they help other lawyers who are doing nothing but taking depositions and filing motions. Trial lawyers go in there and stand in front of a jury and try the case.

Let me tell you what’s happening. Part of this appeals to my conspiratorial side, and part of it is just my observations over the years. We are having fewer and fewer trials, and it’s disturbing. And one of the reasons we’re having fewer and fewer trials is that there are fewer and fewer lawyers and judges who want to try cases. The system is being stacked in many different ways to get cases settled. And there are now consequently fewer and fewer real trial lawyers.

There’s a dynamic of fear that pervades trial practice, and how you deal with that fear often determines how well you do. There are many lawyers who are simply afraid to go in there and try cases. They want to be known as “trial lawyers.” But they’re really afraid to go in and put it on the line. They might lose badly. They might make a mistake.

This dynamic also affects judges, to a lesser extent. Judges in trials have to make decisions that get appealed. But if you settle them all, you never get appealed. Judges should not fear making mistakes. That is why we have appellate courts. But they should try to get it right.

Cosslett: Do they usually get it right?

Sanders: It depends on what judge you have. And how that person got chosen. We’ve now got these litmus tests. It seems that nobody cares anymore whether they know any law or not. It’s how they come out on abortion.

Cosslett: Is going to trial always a good thing?

Sanders: If we could somehow turn this thing around and get more trials, the system would work better. I think jury trials have a lot to do with our concept of liberty. And the system ain’t perfect—Lord knows, it’s not perfect. But having juries decide issues is an important part of our legal system. So to have fewer trials should be alarming. We’re losing something. And we’re losing it from all perspectives, because a citizen who sits on a jury and does a good job goes out of that courtroom a good citizen and a believer in our system of justice. Even disappointed litigants, if they’re honest with themselves, probably come out of a courtroom saying, “I got what I deserved. The system worked.” And we all have an appreciation for justice. We’re losing that with fewer jury trials and our system of justice is losing the respect that it needs from the citizenry.

Cosslett: So, settlements are simply about the economic cost of wrongdoing. Trials allow juries to decide the rightness and wrongness of a claim from both a societal and legal perspective. Juries then become the touchstone for what society values or will tolerate. There’s something very grounding about juries.

Sanders: I’ve done this for a long time, and I’ve been in front of a lot of juries. And I’m satisfied that, by and large, they try to do the right thing and they generally get the right answer some way or another. They’re not infallible. But if they fail, it’s not because of the jurors.

Cosslett: It’s because the information has not been presented effectively?

Sanders: Or because a judge doesn’t do a very good job of keeping the gate closed so they don’t get inundated with a bunch of junk.

Cosslett: What sorts of bells and whistles are you bringing into the courtroom?

Sanders: There are two categories of bells and whistles. One is the tech­nology that goes along with every trial presentation now. I’m a firm believer that you have to do that. I am a dinosaur, but I have forced myself to learn those things that the audience demands. If you are sitting there with a twenty-seven-year-old juror, they don’t want to see you walk up to a blackboard and write on it. They’re used to getting information visually, electronically, digitally. So I’m a strong believer that you must do that. And I’ve had to become insistent on what I wanted in that respect, because everybody’s idea is not the same as the guy who’s going to have to present it to the jury.

The second category is jury consultants. I am a believer in jury research and jury consultants, but I have not liked the idea of a shadow jury. You’ve got enough trouble without dealing with what the shadow jury is doing. And the people who are running the shadow jury are going to the client, and then the client comes to you, “We’ve got a disaster over there.”

In trial, I have enough to do dealing with the jury I have in the box.

But I want to emphasize that there are jury consultants, and there are jury consultants. What I want is somebody who thinks outside the box. I don’t need somebody to come in here and tell me what’s going to happen to me generally. I know I’m going to get hurt and the verdict could be awful. I want somebody to come in here and tell me how I can reach these jury members. What’s going to resonate? What’s not going to work? What should we say? What issues will hurt us?

Cosslett: Do jury consultants look at the composition of the particular jury that you’re going to appear in front of?

Sanders: No. They’ll look at the facts of the case and will have focus groups. And we will put on the plaintiff’s case and try out various defenses.

We had a group of jury consultants called the American Jury Project that was willing to help us on the Twilight Zone case. They were located mainly in the San Francisco Bay Area, and they spent most of their time doing death penalty cases. They were very dedicated people—they weren’t dilettantes. They really were serious about what they did. And they agreed to help us because we were representing an individual defendant, John Landis, in a big criminal case.

So we go into case preparation, and we’re thinking that we will not subject the grieving parents to any intense questioning on the stand. Their children had been decapitated right in front of them. Well, these professionals from the American Jury Project did some focus groups, and they came up with the idea, “Let’s see how the jury would really feel if you give them the facts.” Jim and I said, “You’re crazy.”

Cosslett: You’d think on its face that’s a bad idea. You’d be viewed as bullies.

Sanders: But they tried it, and the focus groups held the parents responsible. The parents were there when the accident happened. They could assess the danger as well or better than John Landis could and had more responsibility to the children. And so it turns out that my job was not to be sweet and kiss them on the forehead. Somebody thought outside the box, and they were exactly right. When we talked to the jurors after the case—it was nine months later—the jurors said, “I don’t see that John had any more responsibility toward those children than their parents did.”

And that’s what I’m looking for. I’m looking for somebody that can think outside the box and somebody who’s willing to fight with me on a day-to-day basis.

Cosslett: Can you outline the process of a typical case from beginning to verdict?

Sanders: That’s hard for me because, the fact is, if you’ve tried one case, you’ve tried one case. Every case is different, and every situation is different. And the exciting thing about our practice is you’re trying things all over the country—and it’s really, truly different where you are, what kind of case you’ve got, who’s on the other side. I don’t know that I can give you a paradigm example of how it works.

And moreover, many of the big cases we’ve been in, including these Jacksonville cases and the Exxon Valdez cases , we get in because we’re white-collar or criminal lawyers. We get in on the grand jury investigation, when the federal government is saying, “We may indict some of you guys from the company.” That’s how we got into Valdez. After we had resolved the criminal case, they asked us to help with the civil trial because we knew more about the liability part of it than anybody. So Jim and I were drafted—me willingly, Jim not so willingly—because Jim was smart enough to see the handwriting on the wall.

He knew what this was going to look like. We weren’t in on the beginnings of the Valdez civil case. And there was two or three years’ worth of depositions that we had no knowledge of until we got in the case, and then we had neither the staff nor the time to do all the depositions that were remaining to be done. It was the same thing in the Jacksonville case. I spent most of my time in the first six months after the Jacksonville spill working with the state in the criminal investigation.

Cosslett: Can you talk about trial preparation, depositions, and all the less glamorous jobs that need to be done in anticipation of a trial?

Sanders: I hate the discovery part of civil cases because, by and large, it’s a perversion of what’s being intended by the rules regarding discovery. What discovery really is in these big cases like Valdez and Jacksonville is plaintiffs’ lawyers trying to get a couple of sound bites. They’re not after discovery. They’re after a fact to fit into their version of their alternate reality. And it just takes hours, and hours, and hours, and then you’ve got to review all the garbage. And the interrogatories and interrogatory answers. I just hate that stuff.

But the amount of preparation is incredible. It’s the most tedious part, and you have to know everything. I think that’s the difference between the guys that do well in court and the guys that don’t do well in court—other than just courage and personality issues.

Cosslett: It’s the preparedness and the familiarity with the material. For every hour in a courtroom, how many hours of preparation have been done?

Sanders: It’s impossible to answer, but it’s orders of magnitude. The truth is, in one of these big cases, it turns into twenty-four hours, seven days a week. If you’re not looking at something, you’re thinking about it. And the learning curve on some of the more esoteric issues is very steep.

Cosslett: Do you find there’s still a big learning curve on the Exxon cases?

Sanders: Yes, every one is different. From what I read in the press, the next wave of cases will probably involve natural gas, because that’s the new big thing and Exxon’s heavily invested in it. And I think what can go wrong with that is different from what goes on in transporting crude oil.

Cosslett: What about wind turbines and solar power ? Will they ever put you out of business?

Sanders: No, those things can go wrong, too. They’re unintentionally, but inevitably, violating the Migratory Bird Treaty Act.

Cosslett: We talked a bit about what you like least about being a trial lawyer. What do you like most about it?

Sanders: I like the challenge of the competition on important matters in an important place: the excitement, the stress, the fear—all of that. And the need to perform and compete. That’s what drives me. I love trials. If I could have one trial and get rid of a hundred conference calls, I’d trade in a minute.

Cosslett: Is your practice what you anticipated it to be when you were in law school ?

Sanders: No. I thought that I was going to represent individual defendants in difficult circumstances with difficult trials and justice would be done. And maybe every once in a while they’d put my name in the paper as the guy who represented another guy and did a good job representing him. When I was in law school, the last thing I ever thought about was, “How much money will I make?” I didn’t care. It was all about being involved in some important cases. And I thought representing an individual charged with a crime was as important as you can get. That’s what I thought it would be.

Cosslett: And the money has been just a pleasant surprise?

Sanders: It’s a gift. Of course, my attitude changed after I had children.

Cosslett: What is the nature of legal practice here in Nashville ?

Sanders: When I joined the firm, Jim Neal was one of the best lawyers in America. Nashville had an inordinate number of good lawyers. Part of that I think was historical accident. And part of it was because the state capital is in Nashville, and much of the big-time constitutional civil rights issues were brought in federal court in Nashville. If you’re going to sue the State of Tennessee, you sued them in federal court in Nashville.

There were a slew of good lawyers in this town, and there were a couple of criminal lawyers who preceded Jim who were fabulous lawyers. And the fact that you had two or three of those in one town probably had a lot to do with the quality both of the bench and of the bar in town. Those guys cast a wide shadow. They enhanced the quality of the practice. So Nashville was that kind of town. Is it evolving still? Yes. Are there as many of those kinds of lawyers? No. Nashville’s becoming a city, and business predominates. And so the firms that are best known in this town, with the exception of ours and another two or three, are probably the bigger firms that have a lot of good business with the banks and the healthcare industry.

Cosslett: Are the firms here national or local ?

Sanders: There are probably four or five large firms in Nashville that are regionally owned: they started here and they still have a pretty good influence. The merger and acquisition activity hasn’t choked them into something other than they were. There’s been a lot of that because this is an attractive market.

Cosslett: Are law firms here run as partnerships or as businesses ?

Sanders: I regret to say I think that the trend is toward being run more like businesses. Indeed, I think the trend over my lifetime has been that the law is much less a profession than a business. I think we focus too much on the business of law and not enough on the profession of law.

Cosslett: What issues of professional responsibility can come up in connection with a trial practice?

Sanders: There are issues that come up on the professional responsibility side, the ethics side, that are difficult. I have watched lawyers get in trouble because it can be a tough practice. While I certainly do not condone it, I try not to be judgmental or hypocritical about some who fail to meet the legal and ethical standards.

Take a solo practitioner just scraping by in a given year. He’s got a client who’s got enough money to pay for legal services and that amount will enable that practitioner to pay the bills for that year. That client asks him to do something that, on a level playing surface, he’d say, “No, I’m not going to do that.” But if he says no, then that client that he’s counted on for the year may walk away and things get a little tighter for that lawyer.

I think it’s a continuum. At the far end, unless you just have supreme confidence in yourself, you do get confronted with issues that make you ask, “Am I going to eat or am I going to do the right thing?” As you go along that continuum, it’s still a tough call to make sure you’re doing the right thing. And, to take this to the end of the continuum, what I have been surprised about and love about my practice now is that I represent corporations like ExxonMobil and General Motors, and I get to know their general counsel. And I don’t ever have to worry about those kinds of issues. All I have to do when we confront legal and ethical questions is to say, “This would be wrong.” They want to understand it, but if it’s wrong, then it’s decided. And they’re straight. They are honest, and they don’t want their lawyers or clients doing anything wrong. So these issues are wonderfully handled in this context. To have this kind of client is luck. In a large sense of the word, it’s luck. It was an evolution.

Most of the issues that I do see in this area come up as a result of behavior on the other side. The question is always, “What should I do about this.” And generally, the answer is, “You’re an out-of-town lawyer. You represent a big, unpopular client. Shut up.”

Cosslett: There’s a reality to it.

Sanders: There is. Usually, I’ll say, “Look, this is not my call. I think this particular conduct is horrendous. I think something ought to be done about it. You are the lawyer in this jurisdiction. I’m passing it to you. I’ll support you if you want to do it.”

Cosslett: Is there a skill set that’s particularly useful for a trial lawyer?

Sanders: I think the answer is generally yes, but that skill set is probably a bit different for almost every trial lawyer, because I think what you have to be is true to whatever it is you are, to whatever your personality is. So the spin on the skill set is determinative because of your personality or your style. I think you have to love the battle. Now, that’s not a skill set, but it is a mindset.

Cosslett: You pointed to your heart when you said “mindset.”

Sanders: It’s a soul set. It’s a gut set.

You have to be the kind of person who wants to have your bat up, and there are men on base, and it’s the final game of the World Series, and you get to hit. That’s what the mindset is. The skill set is the ability to master a body of facts, however complex, and figure out what it is that will represent the truth in a way that will resonate with the jury. And you’ve got to be able to communicate to that jury. The other skill set is to be able to immerse yourself in the questions and the answers, and to enjoy doing it, and to adjust to the changes that inevitably occur in a trial.

You also have to learn to listen. You have to learn to listen to every single word. And you’ve got to pay attention not just to what you’re doing, but to what the witness is doing or to what the other side’s doing or to what the jury’s doing. And I think that is a skill set, to be able to listen that closely, because most of us don’t. Most of us listen to the first couple of words of a question and then we think we know what’s coming. Most people don’t even let you finish the question.

Cosslett: Well, you guys do talk slow down here. I’m just kidding!

Sanders: Guilty as charged.

Cosslett: What would you tell law students and practicing lawyers about being a trial lawyer and about doing corporate defense work?

Sanders: Number one: if you really want to do this, then you must make yourself do it. You’ve got to make yourself get the opportunities. You’ve got to push to get the experience, because the only way to become good at this is by doing it. And you have to do a lot of it to become good at it. And I think the hardest thing for young lawyers to get is trial experience.

Cosslett: So taking the path that you took, going into a not-for-profit role to get trial work is a good place to start.

Sanders: Absolutely. Or a good prosecutor’s office that actually prosecutes and takes cases to trial, as opposed to finding these felony possession cases where they end up taking guilty pleas. Your stats look good, but you haven’t done anything. If you can find a good prosecutor’s office or good defender’s office that actually gets trial work, then, yes, that’s very good.

Cosslett: And what about doing corporate defense work ?

Sanders: I am more than pleased for many, many reasons that I got to do this. It’s harder than representing individuals in terms of results. Your chances of winning are much better if you represent an individual than a corporation. That’s true civilly, and it’s even more true criminally. It’s hard to win if you’re that bloodless entity as opposed to an individual. So it’s not without its downside, but it is challenging work and you have the tools to do things right. I have had the kinds of clients that will allow me to do things honestly and right, so I’m not at all sorry at going from individual representation to corporate representation.

Cosslett: What I’m hearing is that you don’t walk away as frequently with a sense of total success.

Sanders: You have to redefine winning.

Cosslett: And that I imagine takes a little getting used to.

Sanders: Oh, it does.