Rusty Hardin is a legendary trial lawyer working at the top of his game, so, of course, he’s no stranger to the press. In a headline heard around the world, Anna Nicole Smith famously remarked “Screw you, Rusty!” The cry came after Hardin struck a particularly sensitive nerve in the courtroom during a trial in which he successfully fought for the family of Smith’s deceased husband.
Hardin harbors no hostility. He maintains, “Trial law is about people and their stories.” It is these stories that have interested Hardin throughout every chapter of his life and career. A former history teacher, Hardin has always been invested in understanding the people, society, events and problems of the past; it's a big part of what makes him so outstanding in the courtroom, where he represents people dealing with problems of the present.
Where some might find the microscopic gaze of the press unbearable, Hardin has the constitution for it. He successfully represented Roger Clemens when the MLB superstar was accused of using performance enhancing drugs – and Hardin adamantly defends the player to this day. “That was in federal court, and it occurred within the spotlight of a media and public glare. And you have to figure out how you can get a jury to go beyond that,” he says. Figure it out he did – the player was found not guilty.
Hardin refuses to let the public attention phase him – he instead continues to be interested in the people and their real stories. The best journalists and the best trial lawyers share one vital trait according to Hardin: “They know how to truly listen.”
Hardin was inducted into the Lawdragon Hall of Fame this year.
Lawdragon: Before law school you worked as a history teacher. What inspired that?
Rusty Hardin: I loved teaching and I love history. My major was American History. I started out as a schoolteacher, but in the back of my mind I always thought I would ultimately be applying to law school. Teaching is what I did in the interim. This was in the middle of the civil rights era. I arrived in Montgomery, Ala., in August of '65, and Selma to Montgomery had just happened in February of ‘65. The Voting Rights Act was still before Congress.
One of the children that I taught was the son of a federal judge named Frank Johnson, who was a legendary and incredibly significant federal district judge in Montgomery. He was the judge that allowed The Selma to Montgomery March. He made many of the decisions that the 5th Circuit later affirmed that have had such an impact on civil rights. I got to know him, and he wrote a letter of recommendation for me when I was applying to law school years later.
LD: That's amazing – but not before you joined the Army, right?
RH: That’s right. I quit teaching only because I was going to enlist in the Army. It was in the middle of Vietnam, in May of '66. I went home to the draft board in the beautiful little North Carolina town I grew up in and said, "I've given up my teaching job, I don't want y'all to draft me right now, but take my word, I'm going to enlist in September." I said, "A lot of these guys aren't coming back, so I'm going to play golf every day until the weather gets to the mid 50s. When the weather hits the mid 50s, I don't like the cold or the wind to play in, I'll enlist."
LD: So, you were really preparing for the worst.
RH: That's right. You prepare for the worst so when the best happens you can enjoy it even more.
LD: How did you make the leap from the Army into law school?
RH: I came back from Vietnam and started applying to law schools and didn't get invited. There used to be a trivia contest in the District Attorney's office in Houston: “What senior prosecutor was rejected by 22 out of 23 law schools?” That was me.
I'm a 50-year overnight sensation. I went to law school and then joined the District Attorney's office in the mid '70s. I wanted trial experience and they asked for a three-year commitment. I thought at that time I wanted to be exclusively a criminal defense lawyer. I learned that I tremendously loved being a prosecutor. I enjoyed representing the state and trying to help victims of crime as much as I later enjoyed representing people who were accused of crime.
LD: How did your experience as a prosecutor help in your private practice?
RH: Those 15 years were invaluable to me. If you want to learn to try cases, a prosecutor’s office is the best place to learn how. The trial practice was tremendously significant. In the state system, the defendant doesn't really have any discovery obligations. You could be in a trial as a prosecutor, think you had the right person, think you are going to get a conviction – then all of a sudden, the defense lawyer brings in five alibi witnesses you didn't even know existed.
I learned to disregard many of the hallowed rules of trial work. The contention, "Don't ever ask questions you don't know the answer to." That's crazy. You might very well have somebody on the stand you didn't even know existed until 20 minutes ago. If you didn't ask questions you didn't know the answer to, you couldn’t ask any questions. You can’t run from asking “why” questions. Juries want to know why. Is it dangerous? Of course it is. But that means that you have to know your case extremely well to know when to take those chances. It helped me learn to cross-examine.
LD: What drove your desire to be a lawyer?
RH: The contact I had with Judge Frank Johnson was significant for me. I had tremendous admiration for him. He became a U.S. Attorney in the early '50s. Eisenhower appointed him because the competition wasn't very heavy. There weren't any Republicans in Alabama at that time. He became a very young federal judge and by the time I met him, he had already become a very popular but polarizing figure. His mother's house was bombed. He himself had an FBI car parked down the street as his protection. He was a pariah in his own town for his civil rights decisions, and he was a fascinating man in many areas. Carter appointed him to be the FBI director in '77, but then he had an aneurysm, and his nomination was withdrawn. He was later put on the 5th Circuit. He was an incredible man and had a big impact on me.
LD: What do you enjoy about trials, specifically?
RH: I enjoy trying to convince a group of strangers to whatever my point of view is about the case. I enjoy jury selection. I enjoy meeting 40 people I've never met before and finding out about them. Trial work is about people and their stories.
The best training to be a trial lawyer is to grow up in a small town and go to public schools. A small town is not segregated the way a large city is. In a small town, you might live next door to somebody of very limited means with very little education and then maybe 600 yards down the street, there’s a very wealthy family. You grow up around and go to school with a bigger cross section of people.
Trial work is about people and their stories.
LD: How do you take the complex concepts in these cases and make them understandable to this cross section of people that sit on the jury?
RH: You look for what the case is about. You ask, "Well, how would your aunt react to that? How would your grandmother? How would the guy in the grocery store? How can I make that understandable?" There's no issue too complicated for a jury to understand. It's really only lawyers and witnesses that make it that way. You've just got to be interested in people and be able to listen.
Maybe two years after I became a prosecutor, I was interviewed on a TV show for the first time. The interviewer is engaged when the camera is on them, then as soon as I'm answering, the camera turns to me, and the talk show hosts look down at their notes for their next question – they stop listening. I realized that's what happens with lawyers who don't pay attention in the courtroom. They ask a question and then they look down for the next question. They're not listening, and they don't hear the witness say things that could be really good to follow up on.
RH: How the trial lawyer hears the evidence and what they pick up on from the witness is crucial. You can only do that if you're listening. The biggest failure of trial lawyers is the same failure of professional journalists, and that's the failure to listen. If the reporter is not truly listening, they're not going to get the true story. They're not going to get beyond what the speaker just said. There are always layers underneath what they said. If you're not a listener, if you're just trying to perform, you're not going to be a good trial lawyer.
LD: You've had so many cases that have garnered a lot of public attention. How does that spotlight affect the work?
RH: The Anna Nicole Smith case and representing Arthur Andersen during the Enron deal came just about a year and a half apart. I actually saw some of the same media people from around the country on both of those trials; they hadn't changed. Those cases represented a couple of similar traits, believe it or not. Anna Nicole was about getting the jury to understand why they should rule in favor of the heirs of a 90-year-old man that was foolish enough to marry a 20-something-year-old woman. That jury started out on Anna Nicole's side during jury selection.
With Arthur Anderson – which we lost at the trial level, and then was reversed unanimously and won at the Supreme Court – we had the first of the Enron institutions going to trial. A huge number of citizens lost their life savings because of what happened within Enron and the feelings were very strong against them. Both of those are highly publicized cases that involved very high media interest and unpopular people or unpopular issues.
It's a matter of trying to figure out what you think the truth was, and then figuring out how to convince people. We convinced them in one, we didn't in the other. Ten years later it was Roger Clemens – where everybody assumes that anybody accused of using steroids must have done it. Nobody believed his denials. I always believed that a jury would ultimately believe us, but it takes a long time to get there. In the meantime, he's demonized by all sports figures, and he's now still out of the Hall of Fame – and he didn't do it. When a jury heard it all, they were totally convinced. It wasn't like they said the government didn't prove their case, they went much further privately and unanimously in their decision.
LD: What are the challenges of dealing with the media in those cases?
RH: It depends on who all you include as being media. The media has changed tremendously. As a blogger, there are no rules. Are they part of the media? Is the media simply the transfer of the message, or is it what we used to think of it as? There are no rules in social media, as you well know. We don't even know if the person posting these views is really that person. We don't know whether somebody's manipulating.
Deciding who to talk to is incredibly difficult. I used to talk to everybody in the media. Clemens was probably the first tabloid case I had where subscription fights were going on, and the case you have is used as a ploy to try to get ahead. The New York Daily News and The New York Post were both racing to have the more attractive headline and they weren't really looking to see what was true and what wasn't.
LD: So, you’ve seen a big change over the last decade or two.
RH: I was probably interviewed by a reporter for the first time in 1976. To this day, I've still never been misquoted and I've never been quoted on the record with something I said was off the record. I've been very fortunate with the media, but that is the media that has rules, and that tries to get not just one side, but both sides. That's the media that looks behind the allegations, whether they're civil or criminal – that’s who I consider legitimate media. They may come from a particular perspective, but they're going to try to get it right. That is a different animal than the people that are rushing to beat everybody else to the headline.
LD: Tell me a little bit about the founding of the firm. What did you want to build?
RH: I wanted people that wanted to make a difference. I wanted a law firm where people look forward to going to work each morning. When you start looking forward to Friday or dreading Monday, it's time to do something else.
You should never, as a lawyer, be doing something you don't enjoy, because you can find something that you do enjoy. The variety of things to do with a legal degree are so widespread. I don't want a firm that has lawyers that are dreading what they're about to do. I want them to look forward to it, I want them to enjoy it, and I want them to enjoy being around each other doing it.
I wanted a law firm where people look forward to going to work each morning.
LD: What keeps you excited when you get up in the morning?
RH: Helping somebody that makes me have, what I call, “freeway moments.” That’s when you're on the freeway, heading home, and you did something that day that made a difference in somebody's life. It could be a criminal defendant; it could be the defendant's family. It could be the victim or the survivors of a tremendous trauma. It could be a million things, but you felt like when you went home that day that you did something good. You made a difference in somebody's life. That's what makes it fun, and it doesn't hurt to get paid for it.