by Timothy G. Ackermann
There are many routes to becoming a great trial lawyer—Mike McKool, Jr., got there by learning, starting in childhood, how to be the kind of lawyer that businesses call on when the stakes are truly high. The kind of lawyer that has some of his best friends on the other side of the aisle. And the kind of lawyer that recognizes the importance of legal services to his clients and to our community.
“Mike McKool is an excellent trial lawyer,” said Paul K. Stafford, President of the Dallas Bar Association, “and is an example of all that is good in our profession—inquisitive by nature, committed to excellence, effective and ethical in and out of the courtroom.” Acknowledging these qualities, the Dallas Bar Association has named Mr. McKool its 2012 Trial Lawyer of the Year.
His successes are well-known. After becoming the youngest partner at the firm he joined after law school, he left that firm (then Johnson & Gibbs) in 1991, along with nine other lawyers. With his co-founder, Phil Smith, a Baker & Botts partner, they formed McKool Smith.
McKool Smith now has about 175 lawyers in eight offices. And the firm, of which McKool is the President and Chairman, has opened Washington, DC, New York City, Los Angeles and Silicon Valley offices in the last five years. Commenting on the award, Mr. Smith said, “Needless to say, the firm is proud of Mike for his accomplishments as a trial lawyer and firm leader. We believe this honor is well-deserved.”
The firm originally gained recognition in commercial litigation. Tom Hicks, for example, was accused, with his partners, of mismanaging a company that later went bankrupt. McKool said he saw the suit as a sham—he felt strongly there simply were not two sides to the case—but it was going to be hard to win. Representing the lead defendant, after a nearly two-month trial, and with about a half-billion dollars at stake, McKool Smith got the jury to find for their client on every question.
Having earned a reputation in commercial litigation, the firm entered the contingency fee IP litigation arena and has seen great success. Indeed, two of its cases last year were listed among the “10 Biggest IP Litigation Wins of 2011.” Other recent recognition includes winning 11 National Law Journal and VerdictSearch “Top 100 Verdicts” since 2007—more than any other law firm in that period.
Just some of the honors already awarded to McKool personally include membership as a Fellow of the American College of Trial Lawyers; membership as an Associate of the American Board of Trial Attorneys; being named as: one of only five “Go-To Attorneys” for civil litigation (Texas Lawyer); appearing in Best Lawyer in Dallas five different times (D Magazine); and being chosen as one of the five Top Business Trial Lawyers in the DFW Metroplex (Dallas Business Journal). He has also been featured in The Best Lawyers in America in Commercial Litigation for almost 20 years and in Bet-the-Company Litigation since 2006. Recognition of his skill, tenacity and integrity also extends to his opposing counsel.
Terry Murphy, who opposed McKool in more than one case, remarked, “You need to anticipate that Mike will pick out … themes that will win his case,” and that “Mike is a very fair, reasonable guy to deal with. He’s got a lot of integrity and honesty.” Mr. Murphy also noted: “Mike will dig to the bottom and get every fact he needs. You know you’re in a battle royal when you go up against him.” Mr. McKool came by those characteristics honestly—starting with his family.
Mike McKool, Sr., who passed away in 2003, also a Dallas trial lawyer, and state Senator, came to this country as a child with his Lebanese parents. Mr. McKool remembers him as “hard-working and ambitious, like so many immigrants.” No surprise, then, that instead of playing during the summer, Mike went to work with his father.
Although he may have hated it then, he watched his father try more than 20 cases. And he credited that experience with giving him a sense of ease and comfort in the courtroom. Mr. Smith remarked that Mike is “just as comfortable in a jury trial in an East Texas courtroom as in an appellate court in Washington, D.C.”
His mother’s family was from Dallas, but Betty McKool’s father was a carnival photographer when she was a child. So the family followed around the carnival and she performed a comedy boxing routine with her sister. Mike notes that he still hears from people who know his mother about what a nice person she is.
Growing up in Dallas, Mike went to Jesuit High School, where he was active in debate, student body President and, he remembers, the smallest guy on the football team. Unlike today—with college counselors and the like—Mike recalled with a chuckle that he chose Notre Dame University because his “girlfriend’s brother told me it was cool.” But he found it a great experience and to this day enjoys reading history and biography.
Leaving Notre Dame magna cum laude and Phi Beta Kappa as an anthropology major, he says he was on a knife’s edge between graduate school and law school. Looking back, he thinks that—in choosing law school—he did not want to hurt his father’s feelings. But he also knows there was no doubt that it was the right choice.
In 1974, he graduated with honors from the University of Texas School of Law, as a member of the Order of the Coif and the Texas Law Review. He then began his practice at the Hewett Johnson Swanson Barbee firm.
One memory from the firm was examining witnesses in a suit on a note—sitting second-chair only days after being licensed. He also recalled a mentor, Ernie Figari (the Dallas Bar Association 2000 Trial Lawyer of the Year), who demanded excellence: “There was no ‘good enough’ for Ernie.” What are some of the things Mr. McKool has learned over the years?
He starts with a new case by listening to his client’s story but “without prejudice on my part.” In other words, tempting though it may be to be skeptical as an experienced lawyer, you must “feel it the way the client feels it.”
He is a strong believer in serial jury testing to identify what the jury likes about an approach and why. But he avoids too many questions for shadow juries, which he thinks can cause their experience to differ too much from that of the real jury.
When picking the client’s representative—the face of the client—he looks for a likeable, approachable person. Juries, he says, feel empathy for people like them, people that are not intimidating.
Nor has Mr. McKool stopped learning. To improve his ability to develop a strong trial theme, Mike and McKool Smith partner, Doug Cawley, recently attended a creative writing seminar on how to write a compelling plot.
What did he learn? A client’s story often may show that it was not without some fault in the dispute. Mike used to try to exclude or minimize those bad facts. But he recognizes now that “struggle is compelling” and that “perfect heroes are not interesting.” In developing his theme, he keeps in mind that, “in the arc of struggle, it’s OK to make goofs.”
Mr. McKool also recalled two changes during his early years: increased self-confidence and appreciation for the importance of respect for those involved in the litigation process—both lawyers and witnesses.
He considers the two related, and recalled that he did not fully appreciate that importance as a new lawyer. He now works to instill that respect in young McKool Smith lawyers. But he remembers learning respect from someone on the other side of the courtroom. He remembers John Gilliam, of Jenkens & Gilchrist, setting an example of a lawyer who was a gentleman, respectful and polite. “You need to respect everyone in the process,” he said.
And despite the value of self-confidence, he emphasized that “you can have self-confidence and not be arrogant.” Even now, he says, if he could change things afterward, there are trials where he “would have been more humble.” With humility comes recognition of the importance of legal services to those who cannot afford them.
Mr. McKool is a longtime supporter of the Dallas Bar Association’s Equal Access to Justice Campaign. “It doesn’t take much looking,” he said, “to be empathetic when you see people who cannot afford legal services.” And, he noted, “Even very reasonable lawyer’s [fees] are out of reach of most people who need legal services.” To address this problem, Mr. McKool, who kicked off the most recent Campaign, has donated each year since it started in 1994—a total of over $190,000.
Mike and his wife, Erin , have been splitting time between Dallas and New York since the firm opened its new office there, and have a 4-year-old son, Michael. His daughter and son from a previous marriage, Raney and Jack, live in Austin and in Seattle.
The award will be presented at the Bench Bar Conference, held September 27-29 at the Horseshoe Bay Resort Marriot.
Tim Ackermann practices patent, trademark and copyright law at The Ackermann Law Firm. He was Co-Chair of the Publications Committee of the Dallas Bar Association from 2009-2011. He can be contacted at email@example.com.