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This story was originally published in the Spring 2024 Edition of The Missouri Trial Attorney .
BY MIKE CAMPBELL
Dirk Vandever has maintained the same axiom since his youth.
William “Dirk” Vandever is one of those people with whom you could spend hours discussing trial strategy. He’s glad to share his thoughts, his strategies, and ideas…and stresses how you can learn more by attending CLEs and reading books. More importantly, it’s a true discussion: He wants to know your ideas so he can grow as well. The curiosity Dirk is known for is a trait instilled in him early on and he carries with him always. Dirk is truly one of those lawyers who exhibits the best of us: he’s generous with his time and is always willing to lend a hand.
What drew you to practicing law?
It may have been pre-ordained. My great-great-grandfather was a lawyer, my great-grandfather was a lawyer, my grandfather, my father, and my mother were all lawyers. My father, who was a terrific trial lawyer in Kansas City, was urging me not to get into law and specifically not get into trial law because he believed that no-fault would eliminate trial law. I told him I was really drawn toward the drama and the importance of what a trial lawyer can accomplish in a courtroom. So, after college I decided to go to law school and he told me it was my decision.
About three weeks before my first year at law school he was killed in a freak electrocution incident when he was using a power drill he just bought. He followed the power drill instructions exactly how it told him to use it, then grabbed for a lamp, which unbeknownst to all of us had a short in it, which completed the circuit and killed him at age 50. At the time, Missouri had a law that said the value of life was $25,000. Not $25,000 non-economic… $25,000 period. So, my mother, who was a double master’s, a PhD and a lawyer herself, who had raised three children and had gone to school and did not have a job at the time, and the three of us boys who were still in school have this lawsuit for the death of their completely healthy 50-year-old breadwinner, and the most we could get was $25,000. The lawyers settled the case for $12,500, they took half, and so my mother got $6,250 for the death of her husband and for the death of our father. I’ve often tried to grapple with what impact that had on me, but I believe it’s probably not particularly sophisticated or subtle. I know it lit a fire within me about the injustice of a law that would only allow for $25,000 in our circumstance.
And so at Popham Law – where I started as a clerk - I gravitated immediately toward the plaintiff’s work and eventually that’s all we set out to do and which I have always found extraordinarily fulfilling.
When you look back at that time and you think about the lawyers that handled your family’s case, what thoughts do you have about that whole entire experience?
Setting aside what the law was, which was grossly inadequate and unfair and unjust, the experience and the reaction by the three of us, as well as my mother, was one of shock and not understanding how the law worked.
One of the things we were puzzled by is how our lawyer arrived at that number: $12,500. The puzzlement, of course, is that it’s a function of the law. So, for us, it was a lack of understanding, it was disappointment, but we believed very much in the lawyers who were handling the case. But, that was our experience and reaction.
You have clients too who are puzzled and confused and don’t really know what’s going on. Do you share your experience with them?
I absolutely do, and I tell my clients that many people can say, “I understand your position, I understand what your reaction is to this,” but they really can’t unless they’ve gone through it. I tell them my story and that even though I went through something similar, I still cannot completely understand what they are going through because everybody reacts differently to a tragedy. I come from a space where I had traveled down a path that may have some similarities to what they’re experiencing, and they do seem to appreciate that. I hope that it allows me to connect with people on a personal level.
From a 10,000-foot view, how do you think your experience influences the way you approach your overall practice of law?
I think it influences me in a couple of ways. First, I believe that all of us in the plaintiff’s bar should do everything we possibly can to help one another. I believe – and this is certainly demonstrated by the MATA listserve – the plaintiff’s bar members have an incredible willingness to go far beyond what people would ordinarily think. While we compete for the same business or some of the same clients, everyone is willing to step up, share everything, kibbutz with people. In fact, I think some of the most satisfying times that I’ve had are when people call me up and we start riffing and they say, “give me your idea about voir dire.” I believe that if somebody calls me to kibbutz and asks me a question about a particular tactic or I teach on a topic at Trial Lawyer’s University, I get far more out of it than anybody who’s listening to me. I truly believe a high tide floats all boats. I believe every good verdict for one plaintiff helps another plaintiff. I believe we are truly in a brotherhood and sisterhood, and I believe that the better we get, the better we can serve people and the better we’re able to connect with jurors and the better people are able to represent their clients.
Another thing I believe – and this is why I think voir dire is the most important aspect of trial – is that all people are good people who want to do the right thing. They may be conservative, they may be liberal, but they all want to do the right thing. The reality is that it’s not just a saying, it’s the truth that everybody comes into a courtroom and we’re all products of our own experience. How would I react if I were called in as a juror and somebody’s 50-year-old dad was killed by a defective product? I don’t think you’d want me on that case. I recognize this about myself from that experience and realize it about others: We’re all products of our own experience. We all form beliefs and convictions and feelings about things.
During voir dire, we have to unearth those feelings and try to encourage people to speak freely by saying, “listen, you are just as patriotic and you are doing your civic duty if we discover what your thoughts are on these narrow issues and determine whether this really is the case for you or maybe your civic duty is for a different type of case… maybe a criminal case, a contract case.
We know that many people are good, solid people who think, “I am uncomfortable being asked to place a dollar value on a human life. I am uncomfortable and I’m going to be hesitant to place a dollar value on physical pain or emotional suffering. That just seems wrong to me.” Those people are just as patriotic as the rest. I know we have a system unlike that of any other in the world where we have baked into the Bill of Rights the right to do whatever we want to do, to pursue life, liberty, and the pursuit of happiness so long as we refrain from negligently inflicting harm on others and as long as we refrain from negligently infringing on other people’s rights.
When you get up and you’re talking to a jury, are those the points you’re hitting with them? The civic duty, the constitution, life, liberty, the pursuit of happiness, are those what you’re trying to emphasize to them early on in jury selection?
I do. Obviously you have to have awareness of what the individual judge will allow and what’s going to happen with pre-trial motions, but I believe in empowering a jury right from the beginning by telling them: “You are the one that makes the decision in this case; the judge gives the law, we give you the evidence, but you are the ones that make the determination.” They are the ones who breathe life into the system by saying, “this is what we feel is a fair and just number.” In closing argument, specifically, I talk about that extensively.
And you dovetail it in closing, but really emphasize that part in the beginning…
At the very beginning I’m talking about them being the ones that are in total control. I was called in to jury duty on two different occasions and I was overjoyed with the idea that I might serve on a jury. Yet, when I got that formal summons in the mail it didn’t say, “Hey, would you mind dropping by and let me know whether you might be available to participate in this?” Instead, it says, “You will be here at this exact time on this exact date at this exact room, and you will sit there for hours and then you will go to a courtroom and two people you don’t know are now going to start asking questions of you.”
The overjoyed part of me somewhat subsided, and I believe that everybody on that jury panel feels powerless in the same way. They feel like they have no power whatsoever. They need to know that whoever ultimately sits on the jury will receive all the law and the evidence and listen to both sides and will be among the most powerful people in this county at the end of the trial. The jurors are the most powerful voice on something significant and important… they determine what value to place on certain things that we all hold dear in our all lives. And, importantly, they decide whether certain conduct is or is not acceptable under the same or similar circumstances in the community.
That feeling of powerlessness you felt when you realized you didn’t have control as a potential juror...is that an anecdote you share?
As with everything, you have exercise caution regarding what the judge believes is permissible. We have seen numerous boilerplate motions that try to limit what personal observations we can share, which I find preposterous and hamstring our ability to be zealous advocates. So, I may share my experience or I may do it in the sense of saying: “You know, a lawyer is also subject to being called, and that lawyer might be overjoyed at the ability to really provide insight, and then his joy might be reduced somewhat when he gets the formal statement.”
So, then I’m saying the exact same thing that I just said to you, it’s just that I’m not saying it in a personal level that somebody might argue is improper, which it’s not so long as you show this is merely a discussion to give the jurors some type of understanding as to what they are doing. I personally think that is a very effective way to approach things.
It just struck me, the jury says “hey, this is the value we are going to say this loss is worth in this community...”
Yes, they should understand they have all of the power, but importantly, they have the power to do right, and they have the power to do something of which they are justifiably proud. This is a verdict for all time. This verdict is the official record of this county and it’s going to be here not just for the life of my client, but for the life of her children and her children’s children. They can come to this courthouse and read this and say, “this was what justice was for my mother, my grandmother.” This is something the jurors will be proud of and will remember the rest of their lives.
Win or lose, how do you go from “trial mode” to back to normal?
Well, I’ve got some understanding kids. I’ve got an understanding brother who himself is a lawyer. I also have some of the best friends that I’ve ever had in my entire life who I joint venture with, practice with. I’ve got a firm of lawyers that I practice with who are incredibly supportive. Dennis Egan is my partner and in the very few occasions where he has lost, you’ll hear him the next morning snapping his fingers and marching along. His philosophy when he loses is this: “What I’m going to do is I’m going to get better. I’m going to learn from what happened here and I’m going to get better.” I don’t know that I have achieved that level, but I try to.
I think we can probably compare ourselves with quarterbacks who get burned for a long touchdown and are told, “You know what? You’ve got to have a short memory. Get back out there.” You’ve got to be able to say when you lose, “Okay, now we’re onto the next one.”
Was there a moment in time during your practice that you thought, “It’s kind of clicking. I’m starting to get it. I have my legs under me?”
The short answer is “yes,” but there’s some context.
For the first years of my practice, there really weren’t a lot of Take Back the Courtroom or Trial Lawyers University or MATA seminars. The time that it started to click for me was when I believe I read David Ball’s Damages Second. I thought, “oh my heavens, here’s an actual description of some well- reasoned approaches.” The the third edition came out, and then Reptile® came out, and then Trial Lawyers University came out and so on... and I’ve had the fortune of speaking at all of those, whether it’s Reptile® or AAJ, Trial Lawyers University, MATA, bar associations, etc... and I learn far more in teaching than I do listening. And I pay attention when I’m listening and gather a great deal of information.
So, what I really believe – for me anyway – is that I have to remain curious even if it clicks.
Tell me about that...
Curiosity is the one thing I believe I still maintain, and it was the one lesson that my mother told me.
I was talking to her once and she said, “Dirk, do you want to know the secret to happiness in life?” And I said, “Oh, that doesn’t sound terribly important, mom. I don’t think so. I’ll just pass on that.” And of course, I said “Yes, tell me the secret to the happiness in life,” and she said, “remain curious.”
I felt electricity going up and down my spine because what other profession exists that feeds a curious person as well as this profession we have? We go from surgical oncology to roadway safety engineering to broken bones to any number of different aspects in every single case. Even if each of these cases follow a similar pattern, they’re different because they involve different human beings with different stories.
If you maintain a curiosity not only about the individual case, but also about the general approaches that you take in trying to achieve a good result, you’ve got it clicking. And I just think, “thank you, mom,” because that really is a pretty good tip.
