[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_4″ last=”no” spacing=”yes” center_content=”no” hide_on_mobile=”no” background_color=”” background_image=”” background_repeat=”no-repeat” background_position=”left top” hover_type=”none” link=”” border_position=”all” border_size=”0px” border_color=”” border_style=”” padding=”” margin_top=”” margin_bottom=”” animation_type=”” animation_direction=”” animation_speed=”0.1″ animation_offset=”” class=”” id=””][fusion_imageframe lightbox=”no” lightbox_image=”” style_type=”none” hover_type=”none” bordercolor=”” bordersize=”0px” borderradius=”0″ stylecolor=”” align=”none” link=”” linktarget=”_self” animation_type=”0″ animation_direction=”down” animation_speed=”0.1″ animation_offset=”” hide_on_mobile=”no” class=”” id=””] 
[/fusion_imageframe][/fusion_builder_column][fusion_builder_column type=”3_4″ last=”yes” spacing=”yes” center_content=”no” hide_on_mobile=”no” background_color=”” background_image=”” background_repeat=”no-repeat” background_position=”left top” hover_type=”none” link=”” border_position=”all” border_size=”0px” border_color=”” border_style=”” padding=”” margin_top=”” margin_bottom=”” animation_type=”” animation_direction=”” animation_speed=”0.1″ animation_offset=”” class=”” id=””][fusion_text]By Mark Curriden
(Jan. 25) – Rod Phelan remembers his early days practicing law.
“My billable rate was $35 an hour and I made $1,200 a month,” he says. “I brought my lunch to work just about everyday to save money.”
Carrington Coleman hired Phelan when he graduated from Duke Law School in 1973. He worked with some of Dallas’ best trial lawyers: Jim Coleman, Fletcher Yarborough, Bill Dawson, Dick Sayles, Barbara Lynn, Mark Werbner and George Kryder.
“Jim Coleman put together an amazing group of talented lawyers,” Phelan says. “And Jim encouraged us to be in the courtroom and to try cases and to trust juries.”
More than four decades later, Phelan – now a senior litigation partner in the Dallas office of Baker Botts – has not lost his passion for trials.
“I would rather watch a closing argument than a Cowboys game or Duke basketball,” Phelan said last year when the Dallas Bar Association named him its 2015 Trial Lawyer of the Year.
Born and raised in a small town in southwestern Oklahoma, Phelan grew up driving tractors, fixing fences and herding cattle on his father’s farm.
“Rod has an ability to see things as they are and not be fooled by flamboyance and hype,” John Phelan told the Dallas Bar Association during a ceremony celebrating his older brother’s award in 2015.
John Phelan said Rod’s “willingness to take on responsibility” and his “energy and self-disciplined to see things through and to leave no stone unturned” made him a good person and undoubtedly a great lawyer.
“His absolute honesty in all ways and all things has been his anchor,” he said.
Phelan remembers one of his first jury trials, when he represented First National Bank of Bowie, Texas, which was suing an insurance company over a $10,000 dispute.
Midway through the trial, the judge called the lawyers into chambers.
“Mr. Phelan,” the judge started, “you are a bright, young attorney with lots of potential, but if you don’t get control of your faces and if you don’t stop shaking your head in disagreement and stop rolling your eyes, you may never win another case.”
Phelan listened, took notes and became better.
“I’ve learned a lot by losing – more by losing than winning,” Phelan told the Dallas Bar last year. “As Yogi Berra said, ‘You can observe a lot by watching.’”
An early lesson in Phelan’s career came when he had been out of law school for a little more than a year. U.S. District Judge Bob Hill appointed him to represent a Dallas jail inmate in a civil rights lawsuit against the City of Dallas and a handful of city workers.
Phelan’s client robbed a Kroger store, took a hostage and was shot twice in the process. The inmate claimed that after his arrest, Dallas jailers violated his Eighth Amendment right to be free from cruel and unusual punishment.
“They didn’t even give him an aspirin as he lay there, writhing in pain,” Phelan argued.
The good news was that Phelan’s client had collaborating witnesses to his claims. The bad news is that the witnesses were a felony drunken driver, a rapist and the inmate’s “big-haired, very large, stretch-pants-wearing wife.”
“My client was a bad guy, scary – scarred, rough, mean,” Phelan says. “But by the end of the trial, I was drinking the Kool-Aid. I believed.”
Phelan told the jury that his client “grew up on the wrong side of the tracks and did not have the privileges some of us enjoy.
“But he is a human being, and an American, protected by the Constitution we all respect,” he argued.
The jury deliberated for about three hours the first day and went home without delivering a verdict, which Phelan thought was encouraging. Things went south fast the next morning when the jury, after deliberating for an additional five minutes, returned with a verdict against the jail inmate.
“I learned two things,” Phelan says. “First, jurors got another day off and another $20 by delaying their verdict overnight. Second, don’t drink the Kool-Aid. That second lesson didn’t stick. I still think I’m right just about every time, still expect to win every case. I can’t explain it or help it.”
During the past 42 years, Phelan has been involved in some fascinating cases. He’s represented some of the biggest names in the Dallas legal community against claims of malpractice: Haynes and Boone, Russell Budd and Bickel & Brewer.
Boulle Diamonds hired Phelan in a trademark infringement case. Temple-Inland chose him to represent the company in a securities lawsuit. He defended banking billionaire Andy Beal in the nasty divorce proceedings involving Beal’s wife, Simona. And he successfully represented software maker Lotus Corp. in a $40 million breach of contract trial.
In the twilight of his career, Phelan says the practice of law has changed dramatically in recent years.
“Fees, profits and income are up. Trials are down. Competition for business is up,” he says. “Electronic data is a burden in multiple ways; it may be the single biggest reason trials are down. ‘Work hard and do good work’ is no longer enough. ‘Good work comes to good lawyers’ is no longer the mantra.
“Our profession is now a business,” he says. “We are managed, tracked and measured. That has a lot of effects, some (like profitability) are welcome; others (like internal competition) are not.”
Phelan says he recently saw 91-year-old Kleber Miller, a senior partner in the Fort Worth office of Shannon Gracey, give a closing argument in a mock trial CLE.
“He was magnificent,” Phelan says. “I asked him what he ate and he said, ‘It’s what I drink: single-malt scotch.’ There aren’t going to be more Kleber Millers. Maybe there has always been only one, but as a young lawyer, I watched greatness all the time, such as Jim Coleman, Jack Hauer and Lou Bickel.
“Those guys and others like them tried hundreds of cases,” he says. “Now a big-firm commercial trial lawyer is lucky to have tried 10. The stakes are high, the cost is higher, clients are scared to roll the dice, and more and more cases settle.”
Phelan accepted the DBA’s Trial Lawyer of the Year honor by making a simple statement to the profession he loves.
“When winning and doing right collide, winning has to lose,” he said.[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]