Guest Interview: Michelle Gessner and Her $22 Million Dollar Verdict Part 1 [Ep 128]
Join us as we delve into the remarkable $22 million verdict achieved by trial lawyer Michelle Gessner against Wells Fargo. Michelle shares her strategic approach to a high-stakes case involving the wrongful termination of a Wells Fargo employee who requested a work-from-home accommodation under the ADA. This episode is packed with insights for trial lawyers, highlighting the value of focus groups in shaping trial strategy and boosting confidence. Discover how focus groups can refine your opening statements and jury selection, even when limited to a 20-minute voir dire. Michelle also discusses the challenges of maintaining focus group confidentiality when faced with aggressive tactics from opposing counsel. Gain valuable knowledge on navigating complex litigation and learn how meticulous preparation can make a significant difference in your courtroom success.
In this episode, you will hear:
- Lessons learned from Michelle Gessner’s landmark $22 million verdict against Wells Fargo.
- Leveraging focus groups to build confidence in trial strategies and understand juror perceptions.
- Utilizing focus groups to refine opening statements and determine the most impactful evidence presentation.
- Protecting focus group footage from opposing counsel’s access attempts and maintaining its confidentiality.
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Supporting Resources:
Learn more about Michelle Gessner at: https://www.mgessnerlaw.com/michelle-gessner/#gref
You can reach out to Michelle Gessner via email: michelle@mgessnerlaw.com
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Episode Credits
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Episode Transcript:
Hello, Elizabeth here. I wanna jump in really quickly before we begin this episode. To let you know it will be broken into two parts. Michelle Gesner and I had a wonderful discussion about her $22 million. Verdict against Wells Fargo and it got a little lengthy, so [00:01:00] we’d broke it into two parts.
I hope you enjoy both of those, Michelle Gesner practices out of Charlotte, North Carolina, and her contact information and bio will be linked in the show notes of both episodes. Hope you enjoy. Hello and welcome back to the podcast. I’m your host, Elizabeth Lyric, and we have a special guest today and she’s special because I got to work alongside with her.
And Michelle Gesner is here to talk about her. Very impressive $22 million verdict. So Michelle, welcome to the podcast. Thank you so much for having me. Of course. We are all dying to know more about this verdict, but before we get there, let’s talk and give everybody a little bit of context about the case so that when we start talking about focus groups and other things, we get a little bit more understanding of what’s happening.
Give us a couple sentences about what this case was about. Sure. So I had the privilege of representing a long tenured employee who [00:02:00] worked for Wells Fargo for 25 years. In which that when he was right outta high school, had suffered a horrific accident where he had fallen off of a balcony and broken his back and compressed his spine.
Fortunately, he was able to regain use of his legs, and so to look at him, you do not see a disability, but he definitely has a disability. He has a paralyzed colon and a paralyzed bladder, which requires medical assistance in order to relieve himself. So the case is about that. He had asked for an accommodation from Wells Fargo formally asked using their formal internal processes in to be allowed to work from home 75% of the time in order to mitigate his disability.
And some might say why 75% of the time his job required at least 25% of travel. He was a salesman. He not for the lighthearted, was able to self mitigate for short periods of time in [00:03:00] order to travel or to be away from home or order to do business. But day to day he needed some an accommodation in order to help him to be able to go to the bathroom with dignity.
So he asked for an accommodation. While everyone was working at home during COVID, he was asking to continue to do 75% of the time when everybody else had to go back to the office and Wells Fargo said no. The human resources notes were critical in this case in which that they management told her no.
When she suggested that they at least try an accommodation management told her that would be delaying the inevitable. As a result, Wells Fargo terminated this employee and they did it using a reduction in force, so another word for a layoff. So they had a policy that required them to have five months lead time in order to add someone to a layoff or a reduction in force.
And when they found out he needed an accommodation. They [00:04:00] slid him in in eight days and fired him. And so that was the facts that the jury heard in this case and the evidence that they saw in the human resources notes leading to the verdict that you just described. Gotcha. And I know because I have a little behind the scenes knowledge that you guys had a total tug of war on this litigation back and forth with Wells Fargo.
Is that true? Absolutely. Again, another thing not for the faint of heart is Wells Fargo Foss tooth and nail on every single thing. It doesn’t take much. You can do a search of all the law, 360 articles, and you’ll see every battle along the way. And because it was Wells Fargo, it was not only played out in the court, but it also was played out in the news.
And we should also say this is happening in Charlotte, so this is where the headquarters, if you will, for Wells Fargo. There’s lots of folks in the community as well. So it got a lot swirling going along in Charlotte. [00:05:00] And so you decided somewhere along the way to use focus groups for this case. So walk us through like that process of why, and then really then we’ll dive into when you started to use them.
Sure. And if anybody knows anything about Elizabeth Lyric, she knows focus groups. And so luckily I have been a student and have learned along the way how valuable focus groups are. So in this case, and in most all of my cases, we start focus groups early. And to just start at the beginning, the first focus group I did was just a, a narrative to find out how’s the jury gonna respond to this neutral set of facts.
Here is a gentleman who had worked his way up the ranks, if you will. He made a lot of money in bonus money because he made a lot of money for Wells Fargo. And under the facts and circumstances of this case, how is a jury gonna respond? So we just did a test, the water focus group, to begin and learned so much.
[00:06:00] Learned about. How are they gonna react to somebody at his level? How are they gonna react to this disability? How do they react generally to Wells Fargo? We’re not talking about a small mom and pop, we’re talking about a Fortune 35 company that’s very well known. And what are their expectations of a company of that size, particularly one that is, provides a a service, they’re service oriented, a bank.
And people choose where they bank and so how are they gonna react? So we learned a lot from the beginning, just doing a narrative focus group and ended up doing roughly 10 to 12 focus groups before we went to trial. Mm-hmm. And I know also, again, I got a behind the scenes look here that you guys had, what some people would.
Be like, why would you start early? And what I’m trying to get to is you guys had a big stall in getting a lot of documentation, so you guys really didn’t know a hundred percent of really the facts of what happened until well into [00:07:00] deposition. Why would you go ahead and do a focus group before getting all kind of the documents?
That’s a great question. So part of it was just to test what we did know and to test what we knew from the plaintiff and the plaintiff himself. How are people gonna respond to him? And some of the things that we did know, but to your point, Wells Fargo strategically. Chose to take the plaintiff’s deposition to take my client’s deposition before they turned over any of what I would call some of the most critical documents, including the notes from the A DA coordinator who had documented every conversation that she had.
Some would say that was intentional. They didn’t want him to have the benefit of what they already knew in their own files before he was deposed. So certainly the perspective even preparing. My client for his deposition and any focus group that we did before his deposition, we were in the dark. He obviously had.
A hunch that more was [00:08:00] going on behind the scenes because of how everything unfolded. But like all employees, we don’t know what’s going on behind the curtains unless we sue and get discovery. And even then you have to fight often to get everything. So starting early, there was more of what we had to carry.
Again, think about how is the jury gonna respond to this person? How is the jury gonna respond to this set of facts? How is the jury gonna respond because it’s Wells Fargo? How are they gonna respond because of where the case will get tried In Charlotte, where Wells Fargo is a large employer, how are all of those things going to be impacted at trial?
All of which don’t necessarily have anything to do with what we’re gonna get from them in discovery. Mm-hmm. Did it change? Absolutely. And so again, we can talk about it, why we did so many different focus groups, but initially being able to structure the case and to know what to ask for, and to know where to focus.[00:09:00]
The focus groups helped us tremendously because those are the people who are gonna be sitting in the box and who are gonna be our jurors and our perspective really doesn’t matter. It’s their perspective that matters. You’re doing ’em all virtual too, right? Yes. A hundred percent virtual. Yeah. Yeah. And so you guys get this big dump of information and makes things, uh, a lot better case.
What? 10 to 12 focus groups? That’s a wholly moly lot. For, I would say any case, however, we got a $22 million case. Okay. Walk us through what do you, after you, some narratives, you get all this information. Sure. Where do you go next with your focus groups? Sure. I’m a little bit of a novice when it comes to focus groups, so I enlisted help when I could, such as yourself, and when you change one thing in a focus group.
You can see right away how it changes their response. And I only know that from doing 10 to 12. So lemme give you an example. I think I tested my opening maybe six or seven [00:10:00] times and I tested some other things along the way. Part of that was testing how did I need to give them the facts of this case?
What needed to come first? What perspective did I need to focus on? Was it from the standpoint or the viewpoint of. The plaintiff, my client, or was it from the human resources’ perspective, the person who really was leading the charge here in trying to help Wells Fargo that they ignored. And so just those small changes in the opening made a difference.
The what kind of timeline did the jury wanna hear about? What did they need to see? From the get go in order to get the facts that we wanted them to get in the order in which we wanted to get it. And you might ask me this, but let me give you another example. This employee didn’t get where he was at Wells Fargo without being an exceptionally good performer.
He just was really at the top of his game. He made a lot of money for Wells Fargo, billions of dollars, and his [00:11:00] performance was never a question. In my mind, and it certainly wasn’t even a question in Wells Fargo’s mind, because remember, they claimed they fired him because they needed to do a layoff, a reduction in force.
So performance was not something that was top of mind as a fact necessary in this case. But without fail, no matter what I twisted or turn, or however I gave it to the focus group, the jurors wanted to know. Was he a good performer? And my lawyer brain said, the law applies even if you’re not a good performer, if you’re there, you get an a combination.
But it was important for this jury to know that he was a good performer and that it was proven in his performance evaluations. And so I only learned that through focus groups and in every focus group, no matter what I changed, it was part of the conversation was what kind of a performer was he? You only get that information.
That has to be something you give this jury jury early and let them [00:12:00] know and let them see it with their own eyes that the performance is where it needed to be in order for him to get an accommodation or for him to get to be worthy, if you will, of the credence of facts that we’re trying to share with them early on.
We don’t want them sitting there thinking. This guy must have been a poor performer. That’s why they fired him. It has nothing to do with his disability. And as I said, we would’ve never had really focused on getting that upfront as quickly and as early as possible. But for having heard it repeatedly from the focus groups, and I think the other kind of issue that you guys.
We’re worried about. But then also this was like a combo pack, which was, there were a lot of people who said, oh, he just wants to work from home because he is lazy. Because we’d all experienced like this work from home and having to go back. A lot of people didn’t want to, and there were some managers, so they were thinking, oh, this guy’s lazy wants to work at home and be lazy.
And so, you know, using the performance reviews was like, okay, we can. Counterbalance some of these other internal arguments people are having with themselves. Oh, he is lazy. [00:13:00] Oh, he, he, he maybe should have been fired anyhow. He wasn’t a good performer. Right. But yeah, there were all kinds of little negative attribute, negative defensive things going on in, in people’s minds.
And to that end, that’s a great comment because one of the things we tested every time was how receptive, if at all. Is the jury gonna be to request an accommodation that is work from home? Um, certainly there are legitimate disabilities such as my clients that working from home is a reasonable accommodation that would mitigate, in fact, their own HR person said it was reasonable after she reviewed all his medical records.
Concluded on Wells Fargo’s behalf that working from home was a reasonable ask and should have at least been tried. Okay, so take that aside. Some people, everybody knows somebody who just wants to stay home to take care of their pets, or they just don’t wanna put on makeup for the day, or they wanna be able to go on a walk at lunchtime around their neighborhood.
That’s what makes the world go round. [00:14:00] That’s what people want. But are those going to be. True accommodations for a true disability, there has to be a back and forth. That’s why it’s called the interactive process in the a DA, to go back and forth and see what works. But in this case, we needed to test were, was a jury going to be dismissive simply because the ask was work from home.
Was there gonna be some negative, uh, viewpoint that he just wants to ’cause he wants to, or is this a legitimate. Need in which that his disability is alleviated to make him equal. That’s why the a DA exists, it exists to make other, if we who have disabilities, equal to those who don’t. And so could this make him equal?
And so what we found is it depended. It depended a lot on the jury. It depended on their. Their viewpoints and their life experiences, if they had been taken advantage of somebody who just wanted to work from home. ’cause they just wanted it. Some [00:15:00] people didn’t think it was a reasonable ask. Mm-hmm. Other people thought that, again, this company, Wells Fargo, they really needed to consider the ask and they certainly should have followed their own HR person’s advice.
Yeah. How was it doing? Working from home? And of course it was like, we got this when he was knocking outta the park. And so I think. The other thing that you said that I wanna just repeat was she said she did 10 to 12 and she did six to seven on her, your opening statement and specifically to figure out what facts did they have to get first.
So a lot of what you did in your opening statement was, call it down, remove. We worked so hard to remove so many things, and that’s just from the opening. You put them somewhere else. They did come into trial, but they weren’t that front and center. What do they need to know immediately to be able to be on your side when you sat down after for opening?
Sure. Are you asking me what did they need to know, or, no, that’s kind of part of the equation for doing opening so many times was to continue, like you said, [00:16:00] tweak a little more, remove some things, put some things in a different way, and that was one of the things that we worked together on, was like, okay.
Let’s listen to what they said about this one, and then let’s try and put something else first or eliminate this thing and put this other thing first. And I think what one of the things that I remember coming out so clearly that was like, what can we do to solidify these HR notes? ’cause they were the, the golden ticket.
For the whole trial. ’cause wis, we realized like, oh, once they started to hear that, they were like, wait a second, we don’t really care. HR knows these. There are HR notes here. And so that was something that was like, okay, how many times can we remind them in the opening about these notes? Yep. Notes. Exactly.
And so to that end, somebody might hear this and think, wow, six to seven on just opening, were you just saying the same thing? No, we were saying different things, but in addition to that, it allowed us to test some of the evidence. When you’re testing your opening, you’re able to test some of those [00:17:00] critical pieces of evidence.
You know, you’re gonna get in like the notes, when do they need to hear it? What portions of those notes do they need to hear early? And what gives the biggest bang, like biggest punch. When they hear or saw they said no is a quote in her notes when she asked the company to just try the accommodation for six months when they see the, they said no.
That was very powerful. And it said, we need to get that upfront. And certainly it drove our order of proof in the case, which witnesses to put up first. Mm-hmm. And so we get a lot from the focus groups, um, at every phase. And sometimes you get multiple faceted pieces. Another example would be every focus group helped us to determine what kind of juror did we need on this case?
What did we want? So for purposes of jury selection, we were able to really look at. What were the world experiences of the people in the focus groups and who were [00:18:00] good jurors for this case compared with those jurors maybe we didn’t want. And so creating a little bit of a profile on what is a good juror for this case certainly helped during jury selection.
And was I doing that during opening focus groups that were tailored for opening? Sure. Because we were able to really see who understood. The case who got the points quickly, who understood the law to the extent that the court was gonna give him the law at the end, and who understood exactly what was being asked for here.
So while it was an opening statement, focus group, there are lots of pieces that come out of it, such as jury selection, testing your evidence, the order of witnesses you wanna put forth at trial. All of those baked into some of those. Now, I did do other focus groups that were designated, as I said, for a narrative early on before we even know what we are gonna put in our focus groups.
How did we need to communicate what the rules or the law is to this jury in order for them to understand it from our perspective early? And then [00:19:00] we did damage as focus groups as well, how, as you said, it’s a $22 million verdict. A large portion of that verdict is back pay and front pay because this person was a high earner, but it’s a lot of money.
So how is a jury going to react to an ask of that amount of money and when to ask for it? Do I ask for it during voir dire? Do I ask for, not ask for it, but do I allow the jury to know how much we’re gonna ask for during voir dire, or do I do it during opening so that they’re not sitting there wondering the entire time, how much money is she gonna ask us for in the end?
Or do I wait until the end? So all of that I was able to feel very comfortable doing at trial because I tested it in focus groups. Mm-hmm. And that was one a thing I was gonna say too, two things. First. In your case you had, how long was jury selection for you? Oh, so I’m in federal court and it is judge specific, but this particular judge allowed 10 minutes for the first eight [00:20:00] people in the box, and you have three peremptory strikes.
So how many ever people get struck once you go through your first 10 minutes per side would be the remaining minutes you had left. So let me give you what happened. After the first eight people were in the box and each side got 10 minutes, five people were excused from the jury. So five new people from the galley were pulled into the chairs and each side had five minutes.
So then there were, uh, two more strikes. So then two more people came in and each side had two minutes. So. That’s it. That’s it. So creating a juror profile, at least the people that you know like this, these are some characteristics. Again, when you’re doing virtual and you’re doing these over and over, and again, you’re, you’re getting a lot of like qualitative things, not just, oh, no one in their thirties is good.
Oh, no one who has a BA in arts and science thing. You had the experience wise, but then you also had, okay, what do I have to ask in 10 [00:21:00] minutes to get to know some of these things in here? ’cause. And you have to make your decision lightning fast, right? Absolute. So that gave you a lot of confidence to make that decision.
Lightning fast. Lightning fast. That is the best way. I think we described it NASCAR fast, right? We’re here to scarlet, and so it was so fast. So you have to really have a good idea and something you can’t learn without doing. Is to trust your instincts and trusting your instincts is really practicing jury selection over and over.
And the best place to do that is focus groups, right? So with every focus group that we did, I spent almost every, I spent some time doing a. Even longer voir dire section or jury selection than I got in real trial. But it allowed me to feel comfortable with the questions I wanted to ask to get real time responses from people that were focus group and be able to see what maybe people thinking about when I do ask those questions.
So [00:22:00] those instincts of trusting your gut, but also trusting your research that you have done through focus groups is really all you can do when you get 10 minutes. Yeah, and this is where you knew your judge. You knew you are gonna have this NASCAR fast, voir dire. So you knew how important that opening statement was to be able to nail it.
If you get somebody on there who’s not gonna fit that profile, okay, what do we need to have in this opening statement? ’cause you did it so many times to be able to retrofit some things like, okay. What you gotta do when you know how important that opening statement’s gonna be. As an employment lawyer, we don’t get to try a lot of cases.
99% of all employment cases settle and even though I’ve been practicing for 25 years. I have not tried a lot of cases, and so the other thing that focus groups give you amongst many is the confidence. So because I had tested it and because I knew how fast it had to be, I was really confident that the [00:23:00] questions I was going to ask would give me some information that I knew what to do with it in that quick period of time.
So again, that lack of confidence going in on what do I do with what they do say. You spinning your wheels at that point, you get nothing out of it. So if anything, for purposes of jury selection, not only do you get a bit of a profile, but you get the confidence to know that the questions you’re asking are going to serve the purpose you need them to serve in that time that you have, there’s no other way.
You’re just winging it otherwise. And if to wing it, you gotta have a lot of trials under your belt. And then that’s still research, so That’s right. That’s right. That’s exactly right. It’s still a form of research there. Yeah, exactly. Trial and error there. Well, to be truthful about this, 98% of things settle.
So trials are few and far between. They’re very hard to get. And I was talking with a lawyer who. He had several coming up and he’s been practicing for some time and he said, I love going to trial. That’s my favorite part. But trials now are so [00:24:00] different than they used to be. Used to file something and in six months you’re doing a trial on it and everybody’s getting up and going.
He is like, but now you get so bogged in the mere of the motions and once you finally get there, you’re exhausted. ’cause it’s just been this whole battle over these very small, minor things. It gets even more treasury. Once you get closer to trucks, they’re gonna throw more and more stuff. And that’s what you saw too, is they just kept throwing more and more stuff.
But for sure. I wanna stick a little sidebar here ’cause I want you to talk about, ’cause a lot of people worry, a lot of lawyers worry if I do focus groups. If there’s a chance, they’re gonna find out and there’s a chance they’re gonna try and get ’em. So that happened to you here, so, so walk us through where this was going on and tell, give us some background about using those clips and what happened.
Sure. So as mentioned, we started early. We started with the narrative, so it was before I even knew what discovery we’re gonna do. We can talk a little bit more about how we used it along the way, but we certainly used our focus group clips in mediation. [00:25:00] So the sanctity of mediation is supposed to be, it’s confidential.
The parties are supposed to come to the table in good faith, and they’re supposed to try to get the case settled. The mediators will tell you it’s the only day that you have complete control over the outcome of what happens in your case, mediation. So we had used some of our video clips. Some of the focus group members on what they really thought about what Wells Fargo did here about the A DA.
What is the expectation of the jury as to what the company should have done? What do they think of Wells Fargo generally and certainly. What is their viewpoint of what happened here? So we had some focus group members from across various. We didn’t just pick one that was really good for us. We showed Wells Fargo that we had conducted multiple focus groups, and we took clips from those focus groups and played them during the mediation in true good faith.
They pick the mediator, they pick the day, they pick the how. And I typically [00:26:00] don’t do a lot of presentations for mediation, but this one was so important that we wanted the Wells Fargo to see this is what the jury’s gonna think about these facts because nobody really wants to go to trial. Trial is something that’s forced upon a plaintiff.
’cause they have no other choice. The company didn’t settle and the case has, you get past summary judgment. In a plaintiff’s case, I mean, I’m sorry, in an employment case that’s hard enough to do and you actually get to trial. Settlement is a sure thing and so nobody comes into a case and says, I’m never gonna take a settlement.
We’re going to trial here. But I most jurors know that. I believe that they know that if it gets to them, it’s important and something along the way didn’t happen. And so anyhow, we showed the video clips. It was a silent presentation. I said nothing. I simply showed a PowerPoint presentation that had some video clips in it, and the next thing we got was a motion.
From Wells Fargo’s Lawyers, which is public, that says, give us all your video clips, give us [00:27:00] all of your videos from all of your focus groups. You have waived privilege because you shared these with us during mediation, and therefore we’re entitled to them all. In addition to that, and this is important, we had a protective order.
This particular judge has a standing protective order and anything marked confidential that you share with anybody, not just your expert, you have to have them sign an acknowledgement form that it’s confidential. So they, in addition to wanting the clips, wanted proof that all of these focus group people they saw had signed that form because we had shared with them some of the quotes from the human resources notes.
Now, we didn’t give them documents, we just shared the content of it. We had to brief it. This is again, part of the file, and fortunately we had a fantastic magistrate judge who immediately got it, and she said during an open hearing, well, wait a minute. Why do you get her focus groups? That’s attorney work product, but it’s also in a mediation.
Surely you’re doing your own [00:28:00] focus groups. Wells Fargo, you wanna turn over all yours to her too. I don’t know whether they did ’em or they’re not. There was a little bit of a deer in a headlight look from counsel’s table when she said that, but needless to say, the court did the right thing. And ordered that they were not gonna get these focus group clips, that they are attorney work product, and certainly anything provided in the sanctity of mediation is expected to be confidential.
And so, you’re right, lots of people are afraid of it. It can be really impactful to the opposite party if they’re open and they’re in good faith. Again, my opinion only is they really didn’t listen to what those focus group members had to say. They were more concerned about filing another motion and trying to make life very difficult in hopes that they’d get the whole of what we had recorded for each and every one, um, as opposed to.
Really using it as a tool or as a medium and to try to get the case resolved. And obviously it didn’t [00:29:00] resolve. No, it did not. And that, that motion is like one example. Tell me if this is wrong, but they tried to get you off the case. Three or four separate motions and one during trial. Right? Sure. So that’s very, this is all public.
So from the get go and what is the lesson? Lemme go back two lessons. One is, what’s the saying? And I’m gonna get it wrong. Somebody help me. It’s he who do protests too much. Yeah. So, or she who dosed does too much. Litigation is an all out fight. We get it. A lot of opposing lawyers. ’cause I was once a defense lawyer.
It’s, show me your cards, I’ll show you mine and let’s just see what happens. But some cases it’s an all out war. And so from the very beginning, Wells Fargo in their answer listed me as one of the lawyers who had helped this particular employee through the accommodation process. Let me back up. Mr. Billon, the plaintiff in this case, hired a lawyer.[00:30:00]
To help him navigate Wells Fargo’s accommodation process, he did it because he didn’t wanna get it wrong, and he wanted to follow the letter of their handbook to the T and submit things the way that they required them to be done. He’s busy making sales, making money for Wells Fargo. He needed help. That lawyer wasn’t me.
It was somebody completely different. She was an a d, a advocate, but when I filed the lawsuit in their answer, they named me personally as the a DA advocate, even though their own records said otherwise. So I had to write ’em a letter and say, help me understand what due diligence you did before you told the court that I was the a DA advocate.
Clearly, you know better. And so they amended their answer, but it was an an immediate, Hey, we’re gonna try to conflict you. We’re gonna put you in here by name. We’re gonna make this difficult because all lawyers are supposed to do some amount of due diligence. Have actual evidence, even if it’s a [00:31:00] sworn declaration, before they file anything with the court that they know potentially is not true.
So anyway, they fixed that, and then later on, which is also public, one of the line managers above Mr. Billon had contacted my office for a consultation. Now I would never be telling anybody about that, but this particular person chose to disclose that to Wells Fargo’s lawyers. And we had noticed him up for a deposition and they immediately found a motion to disqualify me from taking his deposition because two years prior to this case, I had done a consultation with him.
So we had to brief that. And it went back and forth and finally the court again did the right thing and said no again. There’s no evidence here that has one, has anything to do with the other, and she can take his deposition. What does that do for the receiving lawyer? The [00:32:00] duties we have to our clients are the client that we do have, so it required a lot of disclosure.
It required a lot of, I got an ethics council opinion. I knew I was in the right. But because it’s Wells Fargo and the attack is on in such a way that had nothing to do with the case. It was a total deflection. I had to make sure we were on the right side of that and that I had everything in order in the event that the court somehow bought what they were saying.
And then, as you said, on the Friday before trial at 7:00 PM. The oldest trick in the book that might rattle a less senior, a less seasoned, we call it seasoned at my age lawyer, they file a motion claiming fraud on the court that I had committed fraud on the court and that all of my exhibits. That had been filed, my exhibit list that had been filed STR should be disallowed and should be struck.
And the basis for this is we had amended our exhibit lists between April 15th and July [00:33:00] 22nd. When trial actually was set to start, we’d amended our exhibit list. We’d added some exhibits to it, and they claim that because the deadline had passed, we were not allowed to amend our exhibit list. In addition to that.
We had some objections. They had some objections to our exhibits, and then we were working in Excel and they were working in Word, and we had to cut and paste and so on. Three innocuous exhibits. Some of their objections had been cut off on one of the versions we had filed. They claimed that was fraud on the court.
What was so troubling about it too is not a call, not an email, not anything. There was no communication with me whatsoever to claim any kind of. What’s the word? Any kind of prejudice confer. Yeah, yeah, yeah. And they just followed at seven o’clock before we’re set to go to trial Monday. Now I have to say, and this is part of the transcript, so when we get the final transcript, the court was having nothing to do with that.
And back in January when we had this big [00:34:00] hearing with the magistrate on the focus group, the court said to both parties, said, I’ve never seen a case. So many motions have been filed. Now I hadn’t filed any, so it was, she was talking to us like children in the sense of making sure we all were covered by it.
But it was directed at Wells Fargo’s lawyers for filing so many motions. And I reminded the court of that in my response to the 7:00 PM Monday, uh, 7:00 PM Friday. And so we go in what Judge Whitney said. Look, so what people amend their exhibit lists up until trial and sometimes even during trial. And cautioned that they had been warned about filing frivolous sanctions, motions, and.
I would not have liked that type of admonishment from the court if I had done what they did, but I don’t know how Wells Fargo’s lawyers received it. All I know is I have been in front of this judge many times, and to hear him be that upset to really say, I’m gonna turn the gun back on you, which was his quote, it was serious.
And so [00:35:00] again. The tactics, the antics, the deflection during this litigation to be anything but about what actually happened here is what we had to go through in order to get to the jury. Mm-hmm. I hope that you are enjoying the interview so far with Michelle Gesner. I’m stepping in as this is where we’re gonna end this episode, and you’ll have to wait for part two for the remaining part of that.
Interview, but I do wanna just talk really quickly about a few things we’ve heard so far, gaining confidence from focus groups, learning how focus groups can help you when your voir dire is 20 minutes or less. And also what happens if opposing counsel tries to get access to your focus group footage. All right.
Thank you so much for tuning in. Michelle Gassner’s Contact information will be in the show notes along with the link to join the email list trial lawyer prep newsletter. And until next time, thank you so much.[00:36:00]