In this episode…
With over 35 years of experience as a litigator, Kirk Watkins has positioned himself as a nationally recognized lawyer. His experience in the industry has provided countless career lessons, and on this episode of Engaging Experts, he was generous enough to share some of his valuable insight.
Kirk discusses the launch of his career at Troutman Sanders and how he evolved over the years. Throughout this time, Kirk has worked a number of notable cases and collaborated with a range of expert witnesses. The lessons that Kirk has picked up range from the importance of confidence, the attributes of a great expert witness, and the power of persuasive writing.
On this episode, Dan Rubin interviews Kirk, who is Of Counsel at Davis, Zipperman, Kirschenbaum and Lotito, a certified mediator, and a board member of the Atlanta International Arbitration Society.
Note: Transcript has been lightly edited for clarity.
Host: Dan Rubin, National Business Development Manager, Round Table Group
Guest: Kirk Watkins, Of Counsel, Davis, Zipperman, Kirchenbaum and Lottito
Introduction: Welcome to Engaging Experts, the podcast that goes behind the scenes with influential attorneys. Our guests will describe their practice and expertise. Then, we will go deep on various topics related to effectively using expert witnesses.
Dan Rubin: Hello, and welcome to another edition of Engaging Experts. This is Dan Rubin, the National Business Development Manager of Round Table Group and one of the hosts of this podcast series. We have another great guest for you today. Kirk Watkins is Of Counsel with Davis, Zipperman, Kirschenbaum, and Lotito, LLP in Atlanta, GA, where he focuses on complex commercial litigation, intellectual property litigation, and international and domestic arbitration disputes. Over his 35 years as a litigator, Kirk has regularly been listed as a Best Lawyer and Super Lawyer, both in Georgia and nationally. Kirk is also a certified mediator, having served as past president of the Atlanta International Arbitration Society, where he currently serves on the Executive Committee of the Board of Directors. Kirk, welcome.
Kirk Watkins Thank you, it is great to be here.
Dan Rubin: Well, I am looking forward to a great discussion, but first, let’s pause for a brief sponsorship message.
Announcer: This episode is brought to you by Round Table Group, the Experts on Experts®. We’ve been connecting attorneys with experts for over 25 years. Find out more at roundtablegroup.com.
Dan Rubin: So, Kirk, tell us what took you into the practice of law initially. Did you always want to be a litigator?
Kirk Watkins No, it is funny. When I was a young kid, I wanted to be a book writer. I was on the Popeye Club once on television and the host asked me what I wanted to be when I grew up, and I said a book writer. As it turned out, in high school, one of my great friends was a good writer and when I read what I was writing and what he was writing, I decided that he was a much better book writer than I was. I had better find an alternative and I began my search into the profession of law in high school.
Dan Rubin: You started your career with Troutman Sanders and then moved on to a smaller firm. If I am not mistaken.
Kirk Watkins That is correct. I started at Troutman and had two fine years there. It was a great law firm and then I had an opportunity to move to a smaller firm Parker Johnson and Cook, which later became Parker, Johnson, Cook, and Dunleavy before merging with Womble Carlyle. When I first joined them, I was the fifth lawyer, the only litigation and with two-year’s experience, I got to be the first chair for all their litigation cases, which was both an extremely challenging and fun experience. I would scare you to death. It was like being thrown off into the deep end when you are about five years old, but you sink or swim. I learned very quickly how to swim, not without a few bumps and bruises and maybe a gasp of water now and then. It worked out well and I have always felt like it is foster training younger associates. The sooner you put them in the courtroom and the sooner they get our challenge to rise above their current confidence and experience level, the faster they will rise. It is good to be there to help them a little, but it’s not necessarily good to be there and take over for them. It takes away from the experience.
Dan Rubin: Over 35 years between the combination of Parker Johnson and then Womble Carlyle you must have had some noteworthy cases. Is there any that comes to mind?
Kirk Watkins There is one case that comes to mind that I enjoyed thoroughly. It was representing a company called Pacific Communications, and I worked closely with their two owners, Stephen Johnston, and Sanford Thomas. We took on a host of opponents out of Jackson, Mississippi, with a company called American Wireless. We had a challenging trial that was brief for the size. We had an interesting situation. We had filed initially in Georgia and our opponents filed in Mississippi with the same parties. It went to Judge Constance Russell in Georgia, and I was trying to enjoin the Mississippi case because it was the same parties and she said, “Well, I cannot enjoin the case in another state, but I can tell you what I can do. There is a Georgia statute, which says if you bring suit in Georgia and the opposition brings the same suit in another state that you can move to the first position on the trial calendar.” So, there I was two or three weeks into my case, and the judge asked me with my opponents in the room, was ready to go to trial the next week and I said, “I certainly am your Honor.” My opponents certainly were not ready, and not that I was so much ready myself. In any event, they agreed to stay their suit if the judge would give him three months. So, we had three of the most hectic months getting ready for a trial that I can remember. It was a lot of fun getting ready for it, and it was a lot of fun during the trial.
I had a young associate, Anna Davis working with me, who was very calm, confident of her abilities, almost as good as she thought she was, and getting better every day. We worked together against 7 partners, a law firm out of Mississippi and highly respected here in Atlanta as well. To the jury, it looked like we were greatly outnumbered. During the case, I had one experience with her that was terrific. I have always felt if you have an attorney during a case, that sort of grows in front of the jury, they pull for that attorney. They identify with them and want to see them do well. Anna performed that role perfectly. She had a rough start with one witness and was worried I might not let her take another. I gave her a very difficult witness the next day and she did a terrific job.
During the case, I was presenting some exhibits to the jury I was using a trial director and my scanning device that scanned the barcode to bring up the exhibits was not working. So, I was relating to Anna the exhibit numbers I needed her to pull up on the screen for me. I was making a few errors and giving her the wrong exhibit numbers. So, there I was in front of the jury, with the wrong exhibit behind me. After I had done that three times, I apologized to the jury and told them that it was my fault. It wasn’t the fault of my help. The judge rightfully tuned in right away to my use of the term “my help,” which was not appropriate terminology to use for anybody working for me. I had not been thinking in that way, and suddenly, she said, “What did you say, Mr. Watkins?” I played it back in my head, realized the gravity of my error and I saw that the jury realized it as well. My opposing counsel was laughing uproariously, and I decided I needed to do something. The only thing I could think of was to go over and get down on one knee in front of my associate and apologize. Anna played it perfectly. She crossed her arms, looked down her nose at me, and then accepted my apology. The jury clapped. That was a situation, and I found this to be the case over the years when you are in the most trouble, you can sometimes make the most headway if you are not so worried about how you appear, your pride, and are willing to take responsibility for your mistakes and do it immediately and spontaneously the jury recognizes that.
In most of my cases, if allowed, I interview or have a third party interview the jurors after the case. One of the juror’s comments was that when she saw me suddenly go down on my knee, she realized I was a real person. I felt that was a big compliment that I had, unfortunately, had to earn in that case. One of the jurors said they were proud of Miss Davis. She had stood up with all the big guys and had done just as well as they had. She was by far the youngest and was the only female with 7 male partners, and she did a terrific job. Those accolades were appropriate.
Dan Rubin: That is a great story. It just shows your confidence and Anna’s confidence, but it quickly turned into humility and the ability to show the jury that you are a real person. I see this as analogous to the use of experts. Experts are going to be confident in their abilities and expertise. but attorneys come to us looking for an expert who can explain things in layman’s terms to a jury and do so in a way that is not pompous or pedantic. Are there instances in your over 35 years in practice that were notable in terms of your use of experts as well?
Kirk Watkins Quite a few. I have often found that an expert who does not deliver 100% of the opinions that you want, but delivers the opinions that he does with complete sincerity and answers your opponent’s questions in a straightforward and informative way, even when the answers are not helpful to your case, turns out to be the best kind of witness you can have. He is believed by the jury and as long as on balance, he’s on your side, that weighs heavily. On the other hand, an expert who is clearly an advocate, who fights with the attorney that is questioning him, will not give a response that is going to be negative to the person that retained him, even though he knows he would have to if he answered the question, that does not turn out well.
Dan Rubin: I know you have said that on the other side of things, cross-examining an expert is an adrenaline-charged pleasure. Can you elaborate on that?
Kirk Watkins Oh absolutely, in fact, in that same case a damages expert on the other side, a good and truthful gentleman, arrived at his opinions and made five different assumptions during the trial and I was very careful to go over each of those assumptions with various witnesses and show that those assumptions were incorrect. So, before the testimony of damages experts, I had completely undermined all five of his assumptions. He was put on the stand one day at about 2:00 p.m. and he went on to 4:50 p.m. and he was very persuasive. A very good witness and did very well. The judge also said, “Well, Mr. Watkins. It is 10 minutes to five. I am going to adjourn tomorrow unless you believe you can cross-examine this witness in 10 minutes.” I said, “Your honor, I believe I can.” We went from a point in the day where the jurors were all tired. The judge was ready to stop. Everybody got on the edge of their seat. How in the world is this witness going to be cross-examined in 10 minutes? Well, I am pleased to say I was able to do it in eight minutes, and the way I did it was just to go through each one of the assumptions he had made and get him to admit that if the assumption was incorrect. Then it was his opinion that would vary. Finally, when I got through the 5th assumption, I said, “If all of these are incorrect would that change the thrust of your opinion in this case,” He said, “Yes.” I said, “No further questions.” It was not a problem with the expert himself. It was a problem with the assumptions that he had given.
Dan Rubin: Interesting. I think that example illustrates the importance of preparation for cross-examination of a witness. The way you methodically challenged their assumptions, but also the vital importance of your opposing attorneys, preparation, and coordination with their witness. I want to go back for a moment if I may Kirk to the topic of writing and the importance of persuasive writing in litigation, tell us about the role of persuasive writing in your practice.
Kirk Watkins After exposure to my high school buddy who I thought could write like Bob Dylan when he was in the 10th grade, I felt like I had a lot of learning to do. Over the years, I worked long and hard, to focus my writing and found that the best way for me to present a case I love to use colorful analogies, and I learned that those are not as effective. They are fun for the person to come up with, and they are fun to say, but they are not as effective at persuasion. I also have encountered many lawyers who, use extremely strong adjectives in describing the strength of their case and the weakness of their opponents. There are some lawyers that every case they have is the strongest case they ever had, and their opponents had the weakest case they had ever seen. I also found that is not necessarily as persuasive with the core. Over time, I have adjusted the structure and form of my writing that I refer to as persuasive neutrality. I try to use as few adjectives as possible and describe facts in a way that is favorable to my client as opposed to favorable to the other side but not overly blown. I am trying to describe a fact, not to energize with an adjective. I avoid that. For example, if you say something is very strong, it is really in my opinion, weaker than saying something is strong. I avoid piling adjectives on adjectives.
The other very important thing is not to be critical of your opposing counsel, and sometimes that can be difficult. I will give you another example from a patent case that I had. We had a situation where there was some briefing involved. We briefed Danny and acknowledged to the court that we were relying on some authority that was not primary in the jurisdiction. It was not the general rule, but we thought it was the better way to interpret the law. Our opponent cited a case, and they cited it incorrectly. They did not give the correct holding of the case, and they advocated based on the incorrect holding they had advocated for. I was confident that the judge realized that we were trying to effectively make new law or to persuade the court to change the existing law as opposed to my opponent making a frivolous or misleading statement, but I was similarly confident that my opponent was not doing that. Well before the judge heard arguments on the motion that was involved, he said, “I am very upset at counsel in this case, y’all have not cited authority correctly or presented to the court arguments that are appropriate for the positions you have taken.” I said, “Well judge could I respond to that please?” And boy, you could see the judge sit back. He had made his statement and he did not want anybody to challenge it. I said, “Your honor, I apologize to the court for any oversteps we have made in our briefing. I can assure the Court on behalf of myself, and I am sure even for my opposing counsel, that we will make every effort in the future to ensure that the court is only presented with authority that is appropriately supported by what we signed. And a funny thing happened, the judge sat back, and he smiled. He said, “Well Mr. Watkins, I didn’t have as much of a problem with your position. but I accept the apology and we will move forward.” In that instance, it is sort of the humble thing. Rather than taking aggressive action, “It is not me, it is the other side.” Rather than trying to defend myself or even just letting it slide. I aggressively went forward with an apology that took responsibility for something I did not think was mine, and the judge acknowledged that it was not mine. He liked the way it had been handled, and again, I would say that is something for attorneys to keep in mind. I have found time and time again when I have made my worst mistakes, and everybody makes them. I have made some big ones, but when I made them, if I said directly to the judge that I realize I have made a mistake, here is what it was, and here is what I propose to do to correct it, that almost invariably fixes it. When I tell my clients there was an error in strategy. I thought this would happen, but this happened. I made an error here. My clients have uniformly been supportive, and the courts uniformly have been forgiving. What it engenders in both is credibility.
Dan Rubin: Right and credibility is so important. Once you have established it, you need to maintain it, because once you lose it, there is no getting it back. Switching gears Kirk, I know that you have very diverse and unique interests outside of the practice of law and that some of them overlap and mesh well with some of your practice areas within the law. Notably patent law. Tell us a little bit about those.
Kirk Watkins I always had interests other than the law. Let me go back a little bit. As I got into law school and was deciding what area I want to practice law in, I found that every area I looked at seemed to have a funneling effect. You would start with a wide array of knowledge and you would gradually funnel down to specialize in a little niche where you were going to be the rest of your life. That is not the way I had envisioned my life. I had envisioned myself more as entering the exit point of the funnel and broadening my horizons as I went through the practice of law. As I went through law school, I found that the one area that seemed to allow for that was litigation, because if you mastered the skills of being in the courtroom and argued persuasively you could apply those skills to any type of event and circumstance. As I entered the practice of law, I found that you could be categorized. You could be just like the doctor and be an ear, nose, and eye specialist or something that you could concentrate on those hyper injuries. There was a lawyer who was a fire arsonist specialist. All those cases were that. That is not what I wanted to do, so once I was in litigation, how could I keep experiencing different experiences every day. Everybody has different experiences even if you are in the same little niche, but I like more, a broader range of experiences, and I found that intellectual property and particularly patent litigation gave me that opportunity. I have worked with any number of specialists who are just brilliant in their fields and have learned things from them that you would never would if that was not your area of practice.
I have had outside interests that have eventually blended in with my legal career and one of the first was back in the 1980s when the game Trivial Pursuit came out. It pretty much took over the entire industry and was a total bombshell. It was bigger in sales than any 10 games had ever been together. I tried to figure out what in the world made this game so popular and I finally came up with a theory. The reason the game became so popular was that it combined two pre-existing and popular ideas. One was a game board and the other was trivia, which was very popular at the time on radio and game shows. So, when I looked at that I said well what else could you do? What other things are popular that can be combined? That started me on a career that was loads of fun, very informative, and never lucrative, of trying to combine ideas that were already popular but had never before been combined.
The first one I tried to do was combine a jigsaw puzzle and a board game. I came up with the name of the game as Jagger. The game was designed to allow two players or two teams to race together to assemble their puzzles on game boards, and they would tour points or and draw cards that were worth a certain amount of points. By completing a side and playing all their pieces to cover up one of the colors on the game board or by playing a specially shaped piece we called the Jag piece that was like a lightning bolt. Hold on to the puzzle piece as a part of the puzzle and that will be the biggest single bonus that you could get before completion of the puzzle. It was also a hexagonal puzzle, so there were six sides. Every time you completed a side, you would get some points. The first person that completed a side would get more points than the second and so forth. It was a race from start to finish, not only to complete the puzzle but to obtain certain milestone points as you completed the puzzle. Ultimately, it could be designed with any picture in mind. J.C. Penney came around to the toy show one year and said they wanted an Old Testament game, so we had a puzzle done of David and Goliath and Noah’s Ark, and boom we had an Old Testament game out there. I also found they could be cut in different sizes, so you could have puzzles that were 25 pieces for very young kids or puzzles that were 300 pieces for adults. Ultimately, we did an educational series where you would have one puzzle for the kids and one for the parents. The puzzle for kids was maybe 100 pieces, and the puzzle for parents was 200, evening the abilities. The funny thing we found was that the kids would work on these puzzles all the time while their parents were at work, and ultimately, they put together the 200-piece puzzles.
We did a lot of other things. We combined dominoes into a board game where instead of matching numbers in the end you matched colors and shapes. We built a word game that was a board game. It was not Scrabble but falls in that category. We did a game where you filled in a grid as you raced around a racetrack, and each word had to connect with the last one. You threw three different types of dice and they would come up with three letters that you had to use in the word that you were spelling. All those games were a lot of fun. I learned an awful lot about business, marketing, employees, and all kinds of things in terms of running those businesses, which allowed me to work much better with clients over the years. Being able to do that helped me understand business issues much better than I otherwise would have. Payables, receivables, and Human Resource issues. You just ended up dealing with all of them, and you learned a little bit about them, not at the same level as the bigger businesses that I represent.
Then, after a while, I decided that I would like to transform some of the games into computer games, so I taught myself computer programming and began programming some of the games. That was a lot of fun. I never became a good enough programmer to the program as fast as I should. I was able to complete the games, but they were not as fast as I would have liked them to operate because I was using simplified language and probably too many lines of code. What I found from that was extremely helpful for me and dealing with software programmers and dealing with the patents that related to hardware or software and copyrights relating to software disputes over software licensing. I was able to learn from that and utilize that information in cross-examining witnesses and expert witnesses which was very helpful.
Dan Rubin: Wow, that is remarkable. Not only were you able to create these games, learn computer programming and business, but apply all this new knowledge to your practice of law and have fun while doing it. That is great. So, switching gears a little bit to another pursuit outside of the practice of law and this one sounds like a lot of fun for you. Is it you and your wife who started the North Georgia Canopy Tours?
Kirk Watkins Yes, we did a back in 2007. My wife and I took a trip to Costa Rica. We did a canopy tour which is a zip line experience through the rainforest there and we had a little property up in North Georgia and I said, “Well honey, I think we could do that.” She said, “No we can’t but we can hire some professionals that could come in and design it.” So, we did that. We were just about to roll it out in 2007. We had some funds, borrowed funds, lined up to put it in place, and the crash occurred. It took us another two years to find investors, particularly another canopy tour that is still operating up in Ohio, Hocking Hills, their owners decided to invest with us and help us launch North Georgia Canopy Tours, which we did, and had ten really good years up in North Georgia. We at one point had more Facebook fans than any other Canopy tour in the world. Then we launched Virginia Canopy Tours that in the Shenandoah River State Park. That was successful for seven years and we thoroughly enjoyed that as well. Now, we have ceased both of those operations, but at the North Georgia Canopy Tour site, we have the Lula Disc Golf Course, and this year we will complete the Mossy Bottoms Disc Golf Course and this Lula Course is ranked 55th in the entire world of over 6,000-disc golf courses and we are pleased that trying to raise that rating as well.
Dan Rubin: Not until I spoke to you, Kirk did I realize there was a professional Disc Golf Association, and your course is part of that.
Kirk Watkins Absolutely. the president of the Atlanta Disc Golf Association, at the time back in 2010, designed our course and it launched. His name is Keith Johnson and it launched in 2011 and we now have a pro shop operated by the Bomb Squad on the premises, which is great.
I did want to comment before we end today about working with the Round Table Group and what you all have brought to the table for me. I have found that there are a lot of professional experts out there that promote themselves very effectively and you can find them, but I have found that though they are very experienced, they are not necessarily as authentic. One thing I found with Round Table [Group] is you bring me several people to look at, sift through, and to talk with before I hire anybody. A lot of them are academically oriented, which means they are comfortable on their feet. What I want more than anything else is somebody that wants to teach the judge and the jury, as opposed to persuading them. If I can persuade the expert that my side is right, and that what we are doing is what he should be teaching to the judge and jury then he is going to do that automatically, and he is going to do it very effectively. If I am trying to get him to sell something that he may not fully believe in, I am going to have a problem with him. I found the Round Table [Group] in every instance has delivered to me somebody who will fulfill my objective of having somebody the jury will believe.
Dan Rubin: Thank you so much for that, Kirk. We appreciate it and we are so glad to hear it. We especially appreciate you being a loyal Round Table Group client for over 17 years now. I cannot believe I met you 10 years ago in your office at Womble Carlyle and now here we are. Thanks again, Kirk. This has been a real pleasure.
Kirk Watkins Thank you, Dan. It has been a pleasure and may you have many more.
Dan Rubin: Thank you, Kirk. Be well.
Go behind the scenes with influential attorneys as we go deep on various topics related to effectively using expert witnesses.
As an experienced trial lawyer in intellectual property, complex business disputes, and arbitration, Kirk’s strategic approach stresses careful planning and flexibility to achieve the client’s objective without waste. Over his 35 years as a litigator, Kirk has regularly been listed as a best lawyer and super lawyer, both in Georgia and nationally. Kirk is also a certified mediator, having served as past president of the Atlanta International Arbitration Society, where he currently serves on the Executive Committee of the Board of Directors.
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Intellectual property is a form of legal entitlement which allows its holder to control the use of certain intangible ideas and expressions. The term ‘intellectual property’ reflects the idea that, once established, such entitlements are generally treated by the courts as if they are tangible property. The most common forms of intellectual property include patents, copyrights, trademarks, and trade secrets.