By Doug Sherwin, The Daily Transcript
Wednesday, March 20, 2013

Jurors participating in a case litigated by Fred Gordon and Rhonda Holmes are usually treated to quite a show.

In addition to the typical exhibits and storyboards, the two veteran trial attorneys augment their presentation with videos from the pre-trial depositions, ready to play should a witness contradict any previous statement.

They also evenly split up each duty of a case — from picking a jury to the closing statement — with one starting and the other finishing.

“People today are really conditioned to sound bites because of all the media that they have available to them,” Holmes said. “So when we’re able to pull up a video clip of the deposition, where it’s contrary to what (the witness) said on the stand, it’s more exciting.

“People want to be wowed; they want a little flash.” They are partners in the boutique litigation firm Gordon & Holmes based in Little Italy.

The pair painstakingly catalogue each deposition, marking every sound bite they feel they might need at trial with an electronic bar code that can be retrieved with the push of a button.

When the witness contradicts what was said in his or her deposition, Gordon and Holmes use a handheld bar-code reader — much like you would see in a grocery store — to bring up the relevant clip. They call this “getting zapped.”

“When a jury sees it for the first time, it’s really effective,” Gordon said. “It gets the jury more interested in what you’re doing. They’re waiting to see if (the witness will) get zapped.

“It kind of creates this interaction between me as an examiner and the trier of fact (the judge or the jury). With jurors, we get to see them move forward in their seats. And if someone doesn’t get zapped, they’ll believe what they’re saying.”

Another benefit to playing back a videotaped recording is that it can show someone’s demeanor and how he or she is dressed, Gordon said. If they were dressed poorly during a deposition and then come into court wearing a suit, the jurors might feel the witness is putting on a façade.

The video also can show if the witness is looking around while they answer or if they pause after a question is asked, something not evident in a written transcript.

Occasionally playing something on a television monitor helps to break up the monotony of a trial, as well.

“People’s attention span is shorter and jurors are younger and younger now, so they process information differently than people my age,” Gordon said.

Gordon and Holmes begin preparing for trial the minute they take a case. They try to find out as much as they can, and then prepare deposition questions similar to what they will be asking at trial. Although less than four percent of all cases reach trial, they assume their cases will.

“You have to have an (idea) at the time of the deposition as to how you want to try your case,” Gordon said.

Gordon and Holmes have been practicing together for more than 20 years. They were colleagues at Thorsnes Bartolotta & McGuire in the early 1990s before breaking off to form their own firm in October 1999.

Their familiarity contributes to their success in the courtroom.

“We’ve been through a lot together,” Holmes said. “We really know each other very well, so we feed off each other’s cues. He’s strong where I’m not as strong and vice versa, so we complement each other well.”

Holmes said she’s much more intuitive and detail-oriented while Gordon is more of a “black and white” thinker and sees more of the big picture.

“The biggest difference is I’m much more emotional,” Holmes said. “I’m a flag waver. I really grab onto the ideals and principals that we can pull from a case. I speak to those. He’ll speak more toward the factual issues.”

While other attorneys use videotaped depositions at trial, Holmes doesn’t think she’s seen anyone use it with the precision of her firm. They won’t have certain segments cued up and ready to go at a moment’s notice.

That process, which is very time-consuming, has proven to be worth it in the form of many, high value verdicts.

Gordon & Holmes helped Sizzler restaurant receive a $13.5 million award in its fight with Excel Corp., over who was responsible for an E.coli outbreak — a verdict that recently got affirmed by the Wisconsin Supreme Court. The decision ended a 12-year legal battle.

“The primary component (for success) is working hard,” Holmes said. “It’s not smarts and it’s not luck. Ninety percent is preparation, and both of us come from blue-collar backgrounds. We’ve known nothing but working hard.”

They also enjoy what they do.

“I live for it (trial),” Holmes said. “It’s really in my blood. I come from a performing arts background. There is an element of that in a jury trial. It’s not acting, but you have to be comfortable in front of people. You cannot be intimidated by the public speaking aspect.”