In this episode Scott talks with Eddie Schmidt, a great trial lawyer from Nashville, Tennessee. Eddie tells the story of a bullying case in which he had to overcome the local bias of an isolated rural community.

Podcast: Play in new window | Download

Scott Glovsky: Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast where we speak with some of the best trial lawyers in the United States. First, today I’d like to thank our exclusive sponsor, Traci Kaas from The Settlement Alliance-West. Traci is a phenomenal settlement consultant and I’ve worked exclusively with Traci for the last 10 years because she cares.

Just like the folks I interview on this podcast, she cares about the clients and does a great job. Now at first, I was very hesitant to get a sponsor because this podcast is not about making money and it never will be. All of the sponsorship money is going to advertise the podcast so that we can spread the word and get more listeners. Thank you, Traci. So let’s get started.

We’re very fortunate to have with us today Eddie Schmidt, a phenomenal trial lawyer out of Nashville, Tennessee. Eddie handles complex civil cases, very interesting cases, has represented the ACLU, and is just an all-around phenomenal guy. Eddie, thanks so much for being with us.

Eddie Schmidt: Thank you, Scott.

Scott Glovsky: Eddie, is there a case that had a profound impact on you?

Eddie Schmidt: Yes. It was a bullying case that I handled and went to trial about five years ago.

Scott Glovsky: Can you tell us the story of that case?

Eddie Schmidt: Sure. I’m in Nashville and two women started calling me out of the blue with a sense of urgency and just really upset telling me this story about how their two boys in the middle school were being harassed and bullied and subject to all kinds of physical intimidation and assaults in their basketball team locker room in middle school.

Finally, I invited these women to come up and talk to me. They met me on a Saturday afternoon and they just poured out their heart to me. I really didn’t know what to do with this, I’d never had a case like this before. I encouraged them to go back to the school and make complaints to the school, to the school board, to the school council.

They did that and they continued to call me telling me nothing was happening, no action was taken against the bullies that were harassing their sons, that their sons were really concerned about their safety. They were just … Finally, I agreed to take their case only because of the emotion that they displayed to me. It just seemed like I didn’t know how I can help these people, but I wanted to help them. They convinced me to help them.

Scott Glovsky: How’d that make you feel?

Eddie Schmidt: Well, I didn’t know where I was going with this. I had to do a lot of research. I do quite a bit of civil rights litigation, but I’d never done anything in Title IX, so I had to do quite a bit of research. Finally, I drafted this lawsuit. We filed the lawsuit in federal court because the county where the bullying occurred is a small, rural, isolated county. I’d had a medical malpractice case in this county before and this county is very unusual in that the biggest employer is the government.

Probably 60% of the population are employed by the government. That could be law enforcement, the school, the hospital is county owned, or the county administration. The largest employer is probably a sawmill. There is no factories there. There’s some small fast food chain restaurants, but no large employer to think of. The unusual thing about this county is that not only is it isolated, but everybody knows each other. It’s almost like there are about a half a dozen different names and everybody’s kind of related.

Everybody knows each other, so I knew I had to file it in federal court to get the heck out of that county. That was the only way I was going to have a chance. We filed it and we began the discovery. They’re right. Everybody did know each other. All the school administrators, they go up the ladder. They’d begin as teachers, then they become an assistant principal and then they become a principal and then they go work for the school system. They move up the ladder.

The school superintendent at that point had been in the school system for quite some time and with every bullying case, the defense in this case was, “What happened to these boys was just horseplay.” That’s the typical defense. What actually happened to these boys is that the boys were in sixth grade in middle school and they were going out and they had made the basketball team. The eighth grade boys on the team in the locker room which is just off the gym floor, after practice, the coach would kind of disappear, who was a teacher at the school.

The larger boys would push the little boys around, sometimes punch them, and then it would escalate to the point where one of the boys that I represented his mother, they pulled his shorts down. The older boys did and then one boy took a magic marker and sodomized him in his rear end. The other boy, kind of the same thing happened although in the reverse effect. They challenged the boy to do a blindfolded sit-up.

It’s some kind of old wives’ tale that you can’t do a sit-up with your eyes blindfolded, so his eyes were blindfolded. He took the challenge and another older boy took down his shorts and basically put it up against his face. Mooned him, so to speak. According to the school’s officials, even if those facts were true, which they denied, it was all horseplay. It was really no harm being done.

They gave the boys an in-school suspension, but then they were back on the basketball team. They were not kicked out off the basketball team. The mothers were single mothers. There were no fathers involved here, which is a difficult situation that I learned because in these bullying cases, what generally happens is that the kids that are most vulnerable are bullied. They’re very much afraid to speak out because they look at the coach as a father figure. They’re always told that the team is a family.

If they so-called “rat somebody out” or snitch or blame somebody, they’re turning against or they’re being a backstabber against their family, so they’re very much encouraged not to say anything. What happened here is that the boys basically were confronted by their moms about what was going on because their behavior had changed. Their mothers had noticed that the behavior had changed radically and basically had confronted their sons about what happened. Their sons confessed about what happened. That brought forth the mothers calling me and then the lawsuit as a result I eventually filed. We proceeded discovery and eventually, trial.

Scott Glovsky: How did you go about learning to discover the story you were going to tell at trial?

Eddie Schmidt: Well, this was very difficult. These were young mothers and they felt like there were two bullying cases going on. There was the bullies in middle school against their sons and then the mothers felt that the school system was bullying them to shut the hell up and go along. I did all kinds of things. I brought in a psychodramatist, Cathy Sinclair. We went down to Wayne County and did some psychodrama work with both the boys and the mothers. I did some focus group work. I did some psychodramatic techniques of discovering the story.

Scott Glovsky: When you say psychodrama, can you share that with our listeners? Is that related to reenactments?

Eddie Schmidt: Yeah. We did the reenactments of what happened and that’s why I brought in Cathy Sinclair. I didn’t feel comfortable doing it myself without a healthcare professional because it involved a level of violence and physical, somebody being violated, so I brought in Cathy. Plus I wanted to try to build a rapport with the clients because these mothers were very difficult to deal with. As I said, they were young. They were probably both under 30. They didn’t have a husband, there was no father figure.

There was no father involved in these boys’ lives and they would not take any recommendations or advice from me. For instance, they would complain to me about how their boys’ behaviors had changed, how much this had impacted them. I suggested to the mothers, “I think you should probably have your boys, your sons see a counselor. A therapist.” Well, both of them brought the boys to a therapist one time. The boys said, “We don’t like this.” The moms said, “Fine.” We had absolutely no medical evidence of testimony in this case other than the moms talking about how profoundly their sons had been affected by these events.

Scott Glovsky: So you did the reenactments and the psychodrama. How did you develop your plan to actually how you were going to tell the story at trial?

Eddie Schmidt: Well, because I had tried this several years ago, I can’t remember exactly what my theme was, but essentially what I eventually conveyed to the jury was the culture that was going on in this county.

Scott Glovsky: How did you do that?

Eddie Schmidt: I got the mothers to explain the geographic location because we were trying this case in federal court in a much larger town. Not in Nashville, but significantly further away from Wayne County. We had a jury that was being pulled from about a six county different areas. There was nobody on this jury from this location, so I had the mother explain what this community was like, that it was isolated.

This is not a place you would ever go to unless you wanted to go there. You would never drive through this community trying to get to someplace else. Almost 60% of the adult population works for the government, some form of the government. A very high percentage of the population who’s non-employed are probably on some form of governmental disability.

There’s only a couple of doctors in town, a couple of lawyers in town, everybody knows each other. So I talked about how courageous it was for these women, these mothers and these boys to stand up to these bullies. I adopted what these mothers had conveyed to me that the bullies in this case were not so much the eighth graders, but it was the school officials telling these mothers to shut the heck up and to get along, to go along.

Scott Glovsky: Did you ultimately, or how did you convey the action of the trauma that these kids had suffered, if you did?

Eddie Schmidt: Well, again, that was pretty difficult. The case, the trial turned when I had the direct examination of the two boys that I represented. This is a couple of years after the events, okay? One boy had grown, another boy had not. This one boy would probably be about five feet tall, maybe 120 lbs. He was a small frail boy. After he had concluded, I finished my examination with him, as he’s coming off before he even got off the witness stand, I called the main bully.

The main bully is a boy that was about 6’2″, 6’3″, 190 lbs. Big cowboy boots on, he had this swagger with torn jeans. As the bully’s walking up to the witness stand, my client is walking down and they kind of brushed. It looked like the bully had kind of given him a hip. The whole jury saw that and they saw how much bigger the bully was next to the victim. The bully takes the stand and the first question’s asked.

He responds by saying, “You know, I don’t need to answer your questions. This is all a bunch of BS.” The federal judge turned to him at this point and said, “Son, you are here to answer questions, you are not here to talk back. If you’re not going to answer this man’s questions respectfully and politely, I am going to recess this courtroom and hold you in contempt.” From that point on, the entire tone of the trial changed because at this point in the courtroom, I had my two clients sitting behind me.

The whole courtroom was filled with school officials and the parents of the bullies and other people from that town that are still trying to intimidate my clients and make them … or dismiss this case. The jury could see all this. When they saw this exchange between the bully and my client, they could see out in the courtroom what was going on. They knew that my clients was telling the truth.

Scott Glovsky: What impact did this case have on you?

Eddie Schmidt: Scott, it made me really think about the sensibilities of other students. I was a college athlete and it made me think back that the manager of my team, I was on the swimming team in high school and college, it made me think back about how I abused this guy verbally. He was never abused physically, but I hurt his feelings. I didn’t respect him and it made me feel terrible. It made me think back that those who may be, may not be physically have the talents of other people, may not have intellectually the talents, they’re still people and they’re all entitled to respect.

Scott Glovsky: Now, did you go there emotionally to those feelings during the trial?

Eddie Schmidt: Yeah. I opened my jury selection by telling the jury that I was a bit ashamed to confess that I think I was probably, to some degree, a bully in college to another member of my team who was a manager and it made me feel terrible about it. That was my confession to begin my jury selection about, “What do you think about bullies in school? Do you think it’s okay? Do you think it’s horseplay? Do you think it’s a rite of passage?” I got different responses, but at least I got people to open up about what they thought about it.

Scott Glovsky: What did you learn from this case?

Eddie Schmidt: What happened, Scott, is that I really couldn’t read the jury about what was going on. I thought the trial went about as well as it could go. The moms on the stand did kind of take a weird turn, but the evidence came out about as strong as it could have. I mean, the coach essentially admitted that he knew some of this stuff was going on. He may not have encouraged it, but he really didn’t do anything to stop it. That’s what I needed to prove. A Title IX violation.

I gave my close, I got nothing from the jury, I had no idea what was going on. The jury gets the case and literally they were back in less than 10 minutes. I figured we’ve lost. There’s no way that they’ve decided this verdict in 10 minutes. When the judge is reading the verdict, the jury gave me exactly to the number I asked for with absolutely no medical evidence at all. What I learned is to trust the jury. If you’re honest with the jury and you show them yours and the true story of the case, which in this case was the bullying of a community against two mothers, the jury will take care of you.

Scott Glovsky: Why do you need to trust the jury?

Eddie Schmidt: Because that’s our system, Scott. We can’t rely on the judges who may have different agendas. This is our system, our system for everyday citizens to participate in justice and to meet out, what is justice in this community? How do we right the wrongs in this community? It’s the best system that we have ever imagined to hold people accountable whether it be school bullies, governmental bullies, or corporate bullies.

Scott Glovsky: How did you deal with your anxiety during trial?

Eddie Schmidt: I don’t. I’m anxious all the time. I don’t eat well, I don’t sleep well, but for some reason, Scott, once the jury walks into the courtroom, it completely goes away. Once the judge says, “Mr. Schmidt, call your next witness” or “Mr. Schmidt, are you prepared to give a closing statement?”, that anxiety is nowhere felt. All the time before, during when I’m waiting for the jury to come in, I’m a nervous wreck.

Scott Glovsky: What advice do you have for young lawyers who want to be trial lawyers?

Eddie Schmidt: Gee whiz. I guess my advice would be to try to find a mentor that you could follow and learn what it’s like. I didn’t have a whole lot of mentors. I mean, I kind of learned by failing until I went to the Trial Lawyer’s College and then I really finally found some techniques, some skills that I could really rely upon. I would advise them to try to find a mentor to try to learn from them, whether it be regardless of the type of practice. Once you get some experience, try to apply for and attend the Trial Lawyer’s College.

Scott Glovsky: Eddie, thank you so much for being with us. On behalf of all the clients that you’ve represented and will represent, on behalf of all of the students that you’ve taught around the country, and on behalf of my appreciation for you sitting down with me, thanks so much for sharing your wisdom.

Eddie Schmidt: It’s my pleasure, Scott.

Scott Glovsk: Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate it if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s www.scottglovsky.com and I’d love to hear your feedback.

You can also check out the book that I published called ‘Fighting Health Insurance Denials: A Primer for Lawyers’. That’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people and it provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.

Podcast: Play in new window | Download