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August 4, 2003 IN PRACTICE The Warrior Within Tennessee Lawyer Thrives On The Combat Of Trial

By David L. Hudson Jr. petitiveness has helped him become one of the state’s most successful liti - eneath the down-home de- gators – a man known as “the lawyer meanor of Tennessee litigator who never loses,” according to Mark BRandall Kinnard beats the Rogers, a past president of the heart of a warrior. Tennessee Trial Lawyers Association. Known throughout the state for “[He] is by far the premier medical his ability to spin a good yarn and malpractice lawyer and absolutely put ordinary people at ease, Randall one of the nicest lawyers in the state starts every trial pacing at the start - of Tennessee,” Rogers said. ing gate as he struggles to rein in a surge of unbridled adrenaline. Out In The Jungle “At the beginning of every trial, Kinnard knows a lot about battle beneath the easygoing exterior is a – both inside and outside the court - looming volcano,” said the 59-year- room. old med-mal specialist. “If the jury Before entering law school, he e g o could see what was really going on attended West Point and served in H n o t

in my mind, it would scare the day - Vietnam. His combat experience y e lights out of them.” with the 173rd Airborne Brigade has P Keeping his inner combatant served him well in the practice of Randall Kinnard, a natural storyteller with an uncanny ability to con - under control is a persistent strug - law. nect with ordinary people, loves the adrenaline rush of litigation. gle, he said. “I was out there in the jungle with “The high level of energy and my infantry unit,” he said. “It was “The pressures of combat mental - basic, easy-to-understand themes competitiveness is dying to bust out rough work. It was 110 degrees, full ity take you to a place which nothing which are repeated throughout the of me. It’s like the start of a highly of mosquitoes and dysentery. else can,” he said. “Combat and liti - plaintiff’s case.” competitive race. I know that, so I Lawyers defending a case cannot gation cause an enormous release of Judge Marietta Shipley offers a have to tone it down – way down,” come close to doing what the enemy adrenaline that no other experience similar description of Kinnard’s said Kinnard. did to me in Vietnam.” can. I thrive on this adrenaline. There courtroom style. Always nervous at the beginning Kinnard said that his military is something about my personality, “He has a non-confrontational of a trial, Kinnard says he calms him - background instilled a sense of disci - my being if you will, which wants manner with the court, other self by going out of his way to put pline, demonstrated the importance this feeling. I never tire of this feel - lawyers and jurors,” she said. “The jurors at ease. of preparation, and taught him how ing.” cases he tries, against equally excel - “When I see [the jurors] relax and to overcome adversity – qualities lent defense attorneys, make me smile, it helps me to relax. Then, I’m that have served him well in his law A Consummate Storyteller remember why being a judge is intel - off to a smooth start and feel con - practice. In spite of his competitiveness, lectually stimulating and still chal - nected to the jurors. I feel like we are Indeed, Kinnard first considered a the image people come away with lenging.” a team on a mission together,” he law career while at West Point. A when they meet Randall Kinnard is Kinnard credits his success to his said. “Then nothing they do ever general survey course on law piqued not that of a courtroom warrior. In ability to connect with ordinary peo - bothers me and I believe any mis - his interest and he “decided that trial fact, it is quite the opposite. ple. takes I will make during the trial will work would be a good combat sub - “Randy Kinnard offers a likeable, “I’ve been lucky to have had a lot be forgiven. I love this ‘relationship’ stitute.” relaxed and affable personality in the of contact with good, ordinary peo - feeling, this connection to people The desire to reconnect in any courtroom,” said one of his frequent ple who may not be formally educat - that I admire and respect.” way with the horrors of war might opponents, med-malpractice defense ed to a high degree, such as many Kinnard’s combination of good- seem foreign to many people, but lawyer C.J. Gideon of Nashville. “He soldiers I worked with in the Army old-boy charm and controlled com - Kinnard finds intensity rewarding. is quite good at selecting three to five and people I worked with at several 2 • Lawyers USA August 4, 2003 odd jobs,” he said. “I know how to State Law School (now the Univers- plunge,” Kinnard said of his foray when we came in this building. talk to them. I never try to talk above ity of Memphis School of Law). into self-employment in his home - ‘Mr. Kinnard, I’m the only black people, but I talk with them. I am “It was a great practical school,” town of Nashville. person here. Do you know if a very mindful that many people are Kinnard says of his alma mater, from “I begged judges to appoint me to black man can get a fair trial in not impressed with someone who which he graduated in 1976. “Some criminal cases so I could obtain need - this courthouse?’ Well, ladies and tries to impress them.” schools are good for producing aca - ed trial experience,” he said. “I also gentleman, I told George Brown I Frank Fly, a Tennessee lawyer who demics, while others are better at had to buy groceries.” didn’t know, but I would ask. So, has tried medical malpractice cases as preparing good trial lawyers. Ultimately, Kinnard moved toward ladies and gentleman, let me see a co-counsel with Kinnard, is awed by Memphis was very good at provid - civil trials. show of hands of anybody who his colleague’s ability to connect with ing a good practical foundation for “Over time, I started winning can’t give a black man a fair trial people in the courtroom. litigation.” civil lawsuits and lawyers started in this courthouse.” “Randy is the best there is,” Fly Kinnard’s interest in medical mal - referring cases to me,” he said. said. “His sincerity is his strong point. practice began early. While in law By his own count, he has had 25 According to Kinnard, addressing He puts his clients, his witnesses, school, he interned for a now-retired jury verdicts of $500,000 or greater – the issue up front helped him make the adverse witnesses and the jury at ease. the vast majority of them in medical necessary “emotional bond” with the People feel relaxed around him and, malpractice. He has also settled all-white jury, which eventually delib - oh my Lord, he’s a storyteller. He sim - many cases in that range over the erated for just three hours before deliv - ply has a natural, God-given talent for ‘I think I convey to years, but Kinnard said he cannot ering a verdict for Kinnard’s client. lawyering. He also has personality provide an exact number of them. “That was one of the greatest traits and characteristics that were jurors that I believe in Clients have included: a 32-year- moments of my life when that all- born and bred in him that would old woman who was permanently white jury rendered a verdict in make him a success in any business.” my cases,’ said Randall brain damaged when a doctor cut favor of my client,” Kinnard said. “I Kinnard also has developed a vet - Kinnard. ‘In my her intestine during a tubal ligation; will never forget Mr. Brown going eran trial lawyer’s innate sense of the family of a man who died from outside the courthouse after the ver - when it makes strategic sense to younger days, I learned an accidental overdose when a nurse dict and standing in front of an oak back off. misread the doctor’s instructions; a tree, crying. I asked him what was “He knows when to concede a one couldn’t manufac - man whose penis had to be amputat - wrong and he said, ‘Mr. Kinnard, point and when to press hard,” said ture sincerity. You ed; and the family of a 6-year-old girl they used to hang people like me Judge Shipley, who sits on the 2nd who died during a tonsillectomy. from this tree years ago.’ It was a Circuit Court in Davidson County, either believe in your One of his most satisfying trials wonderful moment. I was so proud Tenn. was when he represented George of that jury.” It may seems obvious, but Kinnard case or you don’t, and Brown, an African-American man said that knowing when to argue shot in the leg during a bar fight dur - Last Minute Prep and when to let something go is one jurors can tell the ing the 1980s. Kinnard said that he doesn’t of the toughest skills for a young lit - difference.’ Brown was taken to the emer - develop the final theme of a case until igator to master. gency room of the local hospital, the Saturday before a Monday trial, though he works on many themes “For an inexperienced lawyer, it is where his leg was wrapped, but left during the course of discovery. very difficult not to argue when you untreated. He was transported to “I wait that long for a lot of rea - think there is a chance you can win,” Memphis attorney, James S. Cox, Vanderbilt University, but it was too sons. I have learned that the theme he said. “The trick is knowing when to whom Kinnard called the best med- late. Brown had contracted gangrene for me will not come together until shut up. You watch the judge, watch mal lawyer in Tennessee at the time. and the leg was amputated. [the] Saturday [before trial],” he said. her body language [and] facial expres - “I saw that the work was hard, “The insurance company didn’t “I continue to learn about the case sions, and when you sense she has challenging and required enormous offer a nickel,” Kinnard said of the 1985 long after discovery is complete. I made up her mind and is going to rule preparation and study,” he said. case, which was tried in Lewisburg, learn during a third or fourth read - against you, you act honorably and “The patient was definitely the Tenn. It was a time and place where ing of the defendant’s deposition, for receive the pain.” underdog in the battle against huge race still mattered considerably. example.” Losing a battle may help win the hospitals and health care corpora - “We tried this case … not far from Kinnard said he practices his craft war, Kinnard said. tions. The little guy is whom I want - KKK country, and my client was the in front of his family, other lawyers “Allow the judge to exercise her ed to represent in the first place. It only black man in the courthouse,” in his office and his entire staff. authority. Do not hassle her [when was natural for me given my back - Kinnard recalled. “Paralegals and secretaries have you know you’re going to lose]. ground.” Given the racial dynamics, tremendous ideas and judgments that Later, when you have a point you do Like many law school graduates, Kinnard questioned potential jurors I rely upon in preparation,” he said. not believe is close and your client Kinnard’s first stop after law school carefully during voir dire to detect He also stressed that part of sell - definitely must win the point, then was a large firm. He quickly decided any evidence of bias. Later, he dif - ing the story to jurors is believing it the judge will know your sincerity that it was not a good fit. fused the issue in his opening state - yourself. and will listen carefully to you – out “I didn’t see myself growing pro - ment to the jury: “I think I convey to jurors that I of respect for you,” he said. fessionally as fast as I wanted,” he believe in my cases,” he said. “In my explained. “I was more of a gofer “Ladies and gentleman, as you can younger days, I learned one couldn’t ‘Wanted To Be Own Boss’ and I wanted to be my own boss.” see, there is only one black person manufacture sincerity. You either After completing his military “I was a bachelor with no obliga - in this courtroom – my client. My believe in your case or you don’t, service, Kinnard attended Memphis tions and I decided to take the client said to me this morning and jurors can tell the difference.”