Frank Branson learned his craft watching the greats of Texas courtrooms, lawyers whose achievements and exploits stood out even in a state known for its larger-than-life swagger.
One was John Wilson, Branson’s mentor, who tried only workers’ compensation cases but handled them so well that he was an undisputed master of his specialty.
Another was Richard “Racehorse” Haynes, who never shed the nickname conferred by a childhood football coach and was labeled as one of the nation’s best lawyers by Time magazine.
And of course, Warren Burnett, known for riding motorcycles, shredding airtight criminal cases and, generally, afflicting the comfortable. A former prosecutor who sent one suspect to the electric chair, Burnett subsequently left for the defense bar and won acquittal for an 18-year-old athlete in the “Kiss and Kill” murder case that made headlines in the 1960s.
“It’s hard now to get young lawyers into the courtroom,” muses Branson, who made it a point, especially at the beginning of his career, to observe the best of the best in that arena and figure out which of their tactics he might adopt.
“Warren was fascinating to listen to and told great stories,” he recalls. “And Joe Jamail, who was a character in his own right, had the ability to be likable and prepared, yet knew how to punch holes in cases and the weaknesses of his opponents.”
Branson still remembers “stopping work one day and going down to watch Percy Foreman, who was a great defense lawyer, defend a client here in a Dallas courtroom.”
Branson says that some of the other lawyers who influenced his career were Buddy Low of Beaumont; Ronnie Krist of Clearlake, who represented family members of three of the Challenger astronauts; and Franklin Jones, Sr. and Franklin Jones, Jr., who were partners of renowned trial lawyer Scott Baldwin.
“After I had been trying cases for a decade, more of them became good friends,” Branson says.
Add one more name to that firmament: that of Branson himself. A gentleman who defines courtesy, he has etched his name in the stars as one of the nation’s very best trial lawyers. He speaks softly, but beware the bear inside who is always more prepared than anyone else in the courtroom.
He has run his own practice alongside colleagues including his wife, Debbie Dudley Branson, for four decades, notching victories that include a $242M product liability trial verdict, which was reduced to a $200M judgment affirmed by the Dallas Court of Appeals and was settled while pending at the Texas Supreme Court to the satisfaction of all parties; $7M for a college soccer player whose leg injury in an SUV rollover ended his sports career; and a remarkable $21M to an 83-year-old widow, whose husband was killed by a cocaine-addled trucker.
His experiences along the way – and the lessons of his mentors – offer a virtual primer on what attorneys in earlier stages of their careers need to do to succeed: Prepare meticulously, master the courtroom environment, call witnesses in an order that makes it easy for the jury to follow the case narrative and remain authentic.
The importance of preparation, in particular, was drilled into Branson by his football coach father. The beginning of trial, he says, is a bit like the opening kickoff.
“Once you’ve got the ball in your hand, everything seems to take care of itself, and the same thing is true in a courtroom,” he says. “But more than the ball being in play, you have to have spent enough time in courtrooms both doing things the wrong way and seeing things done the right way to understand that nobody’s going to bite your head off and that you need to do the best you can. And the more courtrooms you’ve been in, the easier it is to do.”
Lawdragon: The amount of care and thought that goes into what great lawyers do, I think, can be underestimated and it shouldn’t be because that’s really one of the big differentiators between you and people who might aspire to be like you.
Frank Branson: Succeeding at trial definitely involves lots of preparation. And you’re right, there are things that occur that hopefully don’t look like you spend a lot of time on them because they go very smoothly. Lots of times, they’re not complicated things. Sometimes, it’s just a matter of preparing your batting order of witnesses so that you present what happened to your client in an order that’s easily digestible by the jury. Some of that, you have to learn by trial and error or watching other lawyers. The jury can understand the bad things that a defendant has done, but they need to hear the story in order, I think.
LD: I know you’ve always worked very, very hard, even after your law degree, going back and getting another degree so you could improve your understanding of injuries. Could you talk a little more about the attention to detail, the care and, really, the devotion to the craft of being a lawyer that’s required to consistently deliver the best results for clients? Because there really are no shortcuts.
FB: No, there aren’t. Some of the habits that have helped me, I learned growing up. When I didn’t do something right, my father had a tendency to make me do it over until I did do it right. My mentor, John Wilson, was a strong lawyer and with him, I had the chance to watch how it was done right.
The cases he tried were always against the workers’ comp insurance company, and they’d always done things like deny medical claims and not treat the injured party properly. And so John would try the insurance company. And if the insurance lawyer got in the way, he’d try the insurance lawyer. And then sometimes the judge would take sides, and he’d try the judge along with all them.
I found out that when I tried cases, I wasn’t John Wilson and had to be myself before the jury. And that took some trials for me to realize that copying what he did wasn’t the way to do it. I realized eventually that once you’ve been there enough and finally understand the process that the jury needs to see that, and you need to be the same person throughout the trial. That last bit is really important.
I saw a defense lawyer once make a move that I thought cost him the case. We’d been in trial for several days, and he’d been close to being a sycophant with the judge and jury, Mr. Goody Two Shoes. Then, during a lunch break, he discovered his paralegal hadn’t done something right, and he really gave her a hard time, unmercifully. And the jury wasn’t locked up, because it was lunch, and unbeknownst to him, there were two jurors standing in the back of the courtroom. And they didn’t respond as well to him for the rest of the trial.
People expect you to be courteous, pleasant. As the trial goes on, if the conduct of the other party or the other witness is really bad, I think the jury understands it if you get a little tougher with them, because the jury’s getting angry at them also. But you can’t start out that way because they haven’t seen the conduct you’ve seen.
LD: Juries need to believe in you to believe in your client.
FB: That’s right.
LD: If you’re presenting one face when they’re sitting in the jury box and then being unkind to somebody when you think nobody’s looking, it reflects on the client. There’s no way around it.
FB: It does. More than that, it reflects on the credibility of the lawyer and the client in the case. When you look at what good lawyers do that perhaps the average lawyer doesn’t do, it really comes down in many instances to persuasion. To persuade, you’ve first got to be likable, credible and prepared.
LD: I like that: likable, credible and prepared. It brings together so much about you: your own background, your father being a coach and, I think, one of your brothers being a coach also?
FB: Yes, he rose to the level of a college coach. He now works for us in investigation and does a good job. My brother’s a really nice guy and he can talk to a rock – he’s a very affable man and a good guy. So when we’re investigating a case, people will talk to him who wouldn’t talk to a lot of former police officers.
LD: You know, you embody some of those same traits yourself, and I do think that that’s a real differentiator in the courtroom.
FB: I’ve had cases as a young lawyer where a lawyer on the other side would just irritate the dickens out of me in discovery. But if you begin trying the case in that manner, it turns off a lot of jurors, justifiably, because they don’t understand why you’re angry, and by the time you get around to showing it, they’ve already made their minds up.
Most jurors, I think, enter the jury box with an open mind about what’s going on. They see the lawyers on both sides, see the witnesses, the quality of the experts, the quality of the plaintiffs and defendants and they begin to form their opinions about the people and the conduct that caused the people to be there and the law firms they have. All of that has to play out in a logical sequence, I think. It’s like going to the movies. The movie has to tell you a story and if they put the ending at the beginning, it’s pretty hard to follow.
LD: Tell me more about some of the lawyers who’ve been mentors or role models in the courtroom.
FB: There are a lot of great lawyers that I’ve enjoyed watching and learning from, people like Scott Baldwin from Marshall, Texas, who was a president of the Association of Trial Lawyers of America. Warren Burnett – who was a great storyteller – he was from Midland-Odessa and was truly an outstanding trial lawyer.
In fact, one time, back in the late ‘50s, the doctors and lawyers of the Midland–Odessa area got to fussing as those two professions are prone to do sometimes, so they decided to have a bury-the-hatchet party. They made two mistakes: They invited Warren to speak on behalf of the Bar Association and they had the party at the Midland–Odessa Country Club. Warren’s speech – after a few cocktails – was, “As I watched the doctors and their ladies arrive in their chauffeur-driven limousines with looks upon their faces as though their heads contain knowledge unknown to mere mortal man, I was reminded that over 100 years ago, when our forefathers were drafting such immortal documents as the Constitution and Bill of Rights for these United States, their forefathers were placing big leeches on George Washington’s ass.”
And it is rumored that shortly thereafter, one of the young doctors arose from Warren’s table and a fistfight broke out.
LD: And as you were coming up as a trial lawyer, you had the opportunity to see some of these Texas legends in action and learn.
FB: I did. And I made it a point to. Racehorse Haynes, in fact, became a friend of mine. He was a real character. I asked him one time where he got the nickname and he said, “In junior high school, I was making a long run on the football field and my coach said, ‘Look at that race horse run,’ and it stuck.”
LD: You’ve talked before about the sheer number of cases you worked on, which is something so many great lawyers say helped them develop their craft. If you take on a bunch of insurance defense or workers’ compensation cases – any area that involves large quantities – they all involve people, right? And so you learn about the interaction of people and the law.
FB: When I was a young lawyer, I worked for a year in Grand Prairie, then was made an offer by one of the largest Dallas plaintiffs firms, which had a large volume of small cases. So after carrying John Wilson’s briefcase for a few years, I got an opportunity to put what I’d seen into practice and we’d try a lot of lawsuits, but they were small lawsuits, $3,000 to $5,000 to $10,000. But I got to see all kinds of conduct, good and bad, in a courtroom from witnesses, lawyers, and judges and grew experienced enough to spot trouble and duck instinctively when I needed to.
My first year of law practice, I was sent to get a document signed at a probate court in Fort Worth. And I was handing the judge the document, and he spit tobacco on my brand new poplin suit. And it just ran, ran down the fabric. And I looked at him and he said, “You learned a good lesson here today, son: Never get in between a man and his spittoon.” And I haven’t since.
And then we tried a case one time, and there was a juror who may not have actually been with the process. And so he, somewhat early in the case, liked our side and every time we’d make a point, he would cheer and clap. So we had to have a conference with the judge, and we asked that he be excused. Sometimes that’s not the best for your side of the case.
LD: But that’s what they don’t teach you in law school. Right? The law only matters when it’s applied with people, and people are different.
FB: No kidding. And courtrooms don’t get the credit they deserve for the work and the justice that comes out of them. It’s hard to fully appreciate that until you’ve been in them and see things go right and wrong, both.
There are all kinds of entertaining and educational things that happen in court. And the longer you’re around them, the more you realize they’re going to occur in virtually any trial. I had some doctor friends who worked at a hospital, for instance, some 40 years ago and the hospital had a rule that required podiatrists to have a physician stand in during any foot surgery.
The hospital’s reason for doing that was that the procedures often relied on nurse anesthetists and without a physician, there would be nobody licensed to do a tracheostomy if there were a problem.
Well, the podiatrists took offense and sued them and my surgeon friends convinced me to represent the hospital. In the middle of the trial, with the chief of staff on the witness stand, one of the jurors – who had a pacemaker – had a heart attack. The chief of staff was summoned to the judge’s chambers to examine her, and he said, “Look, she needs to get to a surgeon, somebody who is a cardiac surgeon, who treated her in the past. My getting involved is not going to help her. It might hurt her.” The lady, unfortunately, died.
The jury then returned a large verdict against my client because one of the jurors somehow overheard that conversation and told the others that she died because my hospital’s chief of staff wouldn’t provide care. When the appellate court looked at the case, it said something like, “The first 41 motions for mistrial Mr. Branson made were good and should have been granted.” So they granted a new trial.
But the juries, a very, very high percent of the time, do the right thing. And when they don’t, there’s usually a reason that comes up during trial that one of those lawyers didn’t know about.
LD: It’s a marvelous system. It really is. And we’re lucky to be a part of it.
FB: We really are. The competitive aspect of litigation and jury trials, I think, is one of the forces that drives me. I really enjoyed athletics as a young man. And carrying a football across a goal, or having a jury find for my client, have always been things that were very exciting to me and gratifying.
LD: That’s the good stuff, isn’t it? That’s why you do what you do.
FB: The bad stuff, of course, is that I really hate to lose. It always takes me a while to dissect the case – to try to see why we lost, how we lost and how I can fix it the next time. We’ve been very fortunate, overall, and we have a great team.
Four of our lawyers have gone on and become presidents of Texas Trial Lawyers; Debbie [Dudley Branson] is one of them. Some of them, I think, are in the International Academy, which is a really great honor.
All of our trials are really a team effort, with Debbie and me and one or two of the other lawyers, and it’s been very enjoyable. And it’s great to see these lawyers develop. Some of them have had their own firms, and some have come out of defense firms, and one or two out of the prosecutor’s office.
Obviously we’re looking for bright young lawyers, but I really want them to want to win and accept our work ethic.
LD: Of course. You don’t want a lawyer who’s like, “Well, I did my best.” Right?
LD: Obviously, at the end of the day, the lawyer has to learn to live with losses, but you want a lawyer who says, “I’m the quarterback. I’m taking this. I’m putting it on my shoulders. And I’m going to get in the end zone for you.”
FB: Exactly. One whose attitude is, “I want to win at all costs within the rules.” And the entire team has to work toward that.