Live with David Heffernan featuring Kevin Crews, Partner at Wicker Smith

On Behalf of | Jan 31, 2022 | Podcasts

Welcome to another episode of First off, let’s kill all the lawyers. I’m David Heffernan. I’ve been practicing personal injury law here in South Florida for a little over three decades, hard to admit that. And the goal behind this podcast was simple. You know that that line uttered back in the 15th century by Dick the Butcher, lawyers love to argue, oh, that was flattering of lawyers. But the bottom line is people laughed, okay. And people still laugh when they hear it today because people think it’s not a bad idea. So, the goal here is kind of one by one. Let’s bring some people in. Let’s introduce you to some South Florida lawyers get to know him a little bit, what they do varying aspects of law, and maybe one by one, we can kind of take them off the kill list. My guest this morning, checks a lot of boxes for me. First off, a phenomenal, phenomenal trial lawyer. Been doing this just about as long as I have. But good friend, a fellow member of the Orange Bowl committee, and kind of all around good guy. So Kevin, welcome.

Hey, good morning. Thank you, Dave. I am not sure I should get all his accolades, but I’ll take them especially from somebody like you. I appreciate it.

So Kevin is located in South Florida and has gone over to the West Coast. Kevin’s over in Naples and the partner Wicker Smith and Kevin, I looked at it. I mean, Wicker Smith’s been around a long time, we’ve seen lots of things change in the landscape of South Florida, and a lot of firms come and go and a lot of the stalwarts when you and I first started practicing, they’re not there anymore. Still hectares and things like that. Wicker Smith’s been around a long time and done well. So talk a little bit about wicker Smith.

Well, sure, I’m happy to you know, wicker Smith is as you know, started as a kind of an old-time Miami firm with a couple of guys I just wicker, and James Smith. And I don’t think they could have possibly imagined that their little law firm would grow into this nearly 300 Lawyer law firm that we have that has actually branched outside of even South Florida and Florida. You know, we have 11 offices in the state of Florida. We also have offices in Georgia, we just opened up Atlanta, but we’ve had one in South Georgia for a few years. We have an office in Nashville, Tennessee, and we have an office all the way out in Phoenix, Arizona for some unexplainable reason. Now, we have a terrific partner out there. And, and we just sort of grown. And the interesting thing about wicker Smith’s growth is that we grow what we call organically. In other words, you know, some firms will go into a town and they’ll go look for a lawyer or a particular type of practice to buy or to purchase, or to merge with wicker Smith’s growth has been more organic, meaning that we would have somebody who was a wicker Smith lawyer, move to a different town and open it up, because that person knew how wicker Smith ran their office and ran the shop. And that’s what I did, right? You know, I’m a Miami guy, as you know, I worked in the Miami office for a few years. And we got a call from a client over on the west coast that said, hey, the firm that used to represent us is actually decided to go be plaintiffs law firms. And so, they’re not going to defend our hospitals and doctors anymore. And would you guys do that? And so, they, Tom Graham, who was one of our senior partners at the time, was kind of winding his career down and said, Yeah, I’ll go to Naples, which I think was where everybody goes, when they wind their career down. And he opened this office up, and about six months later, he had more work than he could do. And some of the senior guys came to me and said, Hey, would you consider going to Naples, Tom is going to retire in the next few years. And we’d like to build an office over there. So that’s what I did. And it was a blessing. It was a challenge. It was a sacrifice, because I you know, I was a Miami kid. I grew up there. I had family, as you know, in the health care world, my dad, and I had some pretty good connections. But this was an opportunity that even to me, I could tell this was a super chance. And I’ve been blessed that it’s worked out as well as, as well as it has. And we’ve sort of done that around the state opening up different offices where mostly it’s a lawyer that started in one and transitioned up and opened up an office for us. So that’s kind of how wicker has grown. And we’ve been really fortunate.

We are going to talk about your practice in a minute. But you know, in looking at the BIOS and going over this, I’m scanning things and I’m like, looking at all the offices and I go, wait, they have an office at Palmetto Bay, in the village of Palmetto Bay, which I live in. So I was surprised to see that pleasant to see at the old Burger King headquarters. I guess you guys have taken some space in there. It’s just good to know because when I’m going to run for village idiot, which I plan to do at some point, I know I can have the backing of wicker Smith now that they’re in Palmetto Bay.

Absolutely. We can round up some votes for you for that. All

right, well, let’s go back a little bit. You are Miami guys, as you said. So, tell me a little bit. I know you’re a noble. What is it that prompted you then to get into law? Was that something you always wanted to do? Or what sort of drove you to law school and, and the practice of law?

So yeah, I did. I graduated from Florida State. I didn’t know much about the school until I started looking around. Yep, I wanted to play sports. So that was kind of that was part of my drive. I got some really good advice, David, about my junior year, I started thinking I really want to go to law school. I think that’s what I want to do. I used to play tennis on Saturday afternoons and mornings with my dad and a group of mostly his friends. But you know, looking back on it, it was quite a collection of the who’s who, in Miami. You know, we had federal appellate court judges like judge Pete Fay that would play tennis with us every Saturday and I go have lunch with them and write nothing I knew him as Judge Bay. And that was the nice source to get some information from as to what the whole thing is about very well respected. There were a number of lawyers that also played in that group. One guy that in particular that sticks out is a former divorce lawyer. He’s now passed away Ed Vining, who was a good friend of mine, and he was a terrific storyteller, as many trial lawyers are. And he used to just regale us at lunch. We used to go to this place called villain Ted. I’m sure you remember Bill Clinton,

I know it. Well. There are things I don’t remember for Bill and Ted’s but I do know Well, exactly. So, we’d sit there, and advising would regale us with these. Now, I realize maybe some fantastical stories about how he would try this great cause. And he would make this judge cry on the bench. And I’m sure that never happened. But either way, they were just fascinating stories. And I thought, Well, I think maybe I would like to do that. I’d like to be a lawyer. So, I started talking about that with my dad, in my junior year. And my dad gave me some really good advice at that time. He said, Look, it’s a good profession. I think you would do great, but I’m going to give you the advice to take a year off before you go to law school after you graduate. And he said, Go do something, right. Because I’m not you can’t just lay around, I’m not going to support you but go work. You know, go to Europe and travel and work your way around and maybe go to Colorado and work a ski season. And what jumped out to me as I had a buddy of mine and I went to high school with whose father sold all of the catering to the cruise ship industry. And so he had sold this company to Royal Caribbean. I reached out to his son who I knew and I said hey, Lou, is there anything fun to do on a cruise ship? I’d never even been on a cruise ship, right? Oh, yeah. You want to be an assistant cruise director. I was like, Okay, that sounds fun. So, David, I took my dad’s advice. I took a year off between undergrad and law school and I signed up and worked as an assistant cruise director for the Royal Caribbean cruise line. And it was a terrific year I cruised three and four-day cruises to the Bahamas. And then I did seven-day cruises to the Eastern Caribbean. And then seven-day cruises to the Western Caribbean, I met people from all over the world who still have friends to this day of people that I met working on a cruise ship. So that was sort of a nice detour. But it was really good advice to sort of getaway because you know, once you go to law school, and you get out, you know, you’re on the wheel, right? You can’t, there’s no year to take off, especially right out of law school. So it was a great time, it was a good break for me. And then I went to law school, which I had to I deferred my acceptance a year. And the rest is sort of as we say legal history.

Alright, the only question I have then is so let me get this right. You’re an assistant cruise director. You’re hanging out on cruise ships with beautiful young women and men and everything else. You’ve got drink tickets at your access to give them out to entertain and you came back and went to law school like I’m sorry. Why are you not a cruise director today?

Okay, I can I can understand the question about that I get asked that a lot. I will tell you to know it’s an interesting life to literally just pick up and live on a cruise ship for years what I did because I You’re never off right so and as a cruise assistant cruise director you know I was Julie from The Love Boat right and it’s really the service industry and so anytime that you were out of your cabin, you were in an I was in sort of a polo shirt and shorts or slacks and I but I was on the right because people were always coming up to ask me what to do or where to go or I was hosting games you know I used to run bingo and eat shooting off the back of the ship was kind of fun and I would call these gambling horse races and then, believe it or not, we did song and dance gets that. You know they were crazy. enough to teach me and put me up there. And so, it was a lot of fun. But it was your whole life, right? I mean, I literally didn’t see my friends as I came home, maybe once a month when the boat would port, you know if I had a few hours off, I could run over or my parents could come to see me and my brother. So, I mean, it was sort of an all-encompassing life. And yeah, but there were days when I was sitting in contracts class, my first year on a Thursday when I Oh, yeah, well, right now that boat is cruising by Cuba on its way to make that what am I doing,

I’m just making a quick note, I want to reach out to your dad and your brother to find those videos, just because I think we could get some mileage out of I get you doing songs and dances. Matter of fact, the next time we have a case together, might pop up at mediation, it’s just a chance as leverage. Alright, so let’s talk about your Curcas. Because you’ve done very well, you certainly didn’t go to wind down a career on the West Coast, you went over to Naples. And now, in essence, I think, control a large portion of all of the defense work for physicians and hospitals. And you’ve done very, very nicely in getting networked within that. But I want to talk about there’s a couple of aspects to your career. One, I know you do litigation because obviously you and I have gone head to head and I’m sure we’ll go head to head again. But I know you do a lot of administrative and stuff on the licensing of things and everything else with physicians. So talk about the administrative portion, because I don’t think people think about that much.

Yeah, it’s good, it’s a good question. And it really is a critical aspect to a profession, you know, we’re licensed and we are regulated by the bar, in the same way that we’re regulated by the bar, the doctors and healthcare providers are regulated by the Department of Health. And then the different boards that they have, like the Board of Medicine at the Board of Nursing. And when I got to law school, did the first job that I really took was as a hired as a prosecuting attorney for what was then the Agency for Healthcare Administration, it was all one agency. And at the time, aka as it’s called, regulated both hospitals and practitioners, and a lot and Chiles or governor created the Department of Health and they moved all the regulatory of practitioners over to the Department of Health, and the regulatory aspects of hospitals remained with aka. So, I worked with Aqua for a year and a year, and they split it and I was given the choice to go one way or the other. So I went with the Department of Health and I prosecuted doctors and nurses for that year. And what I think a lot of people maybe don’t realize is that you know, you and I maybe have these massive mid-mount cases where you know, the risks are big for everybody. But the damages are, you know, oftentimes catastrophic, and people are looking for millions of dollars. But the risk on the regulatory side is the loss of a license short and loss of the ability to earn an income, right? If a doctor has a med mal case against them, and they lose their insurance carrier, they end up paying monies, okay, but they go on with their career, right? If you get a license, if you get your ticket pulled, so to speak, you’ve lost the ability to earn a living. So they are really important, significant cases. And that’s what I did for a couple of years. So then when, I got hired into the private sector, first at a law firm called Stephens limb where I was for a couple of years. And then my partner Oscar Cabaniss. And I came over to wicker defending doctors and hospitals. It was a real boost to me because I knew that world and not a lot of lawyers that do medical malpractice, defense work, knew the regulatory stuff, certainly not having been behind the scenes, like I was, you know, like a state attorney had been for criminal This was essential that for medical malpractice. So it was, it was a really good opportunity was a good experience for me. And I tried a bunch of cases, you know, administrative cases, it was everything but a jury. So, you know, I had no idea what I was doing. And I learned and watched and like all of us, but it was great. By the time I became a defense lawyer a couple of years later, you know, I tried 30 or 40 administrative trials, and some big ones. I mean, I took licenses from people I didn’t the board did, but there were some very, very serious bad actors. A very small number, obviously, you know, it’s, it’s like any profession, most of our lawyers, believe it or not, are terrific people and go into the profession for all the right reasons. I believe that about doctors as well. You know, that the old adage is there, they’re going into it for money. There are a lot easier ways to make money these days than then going to medical school and being a doctor if you can, as you know, right. But, you know, occasionally there’s a bad actor and the board is pretty tough and pretty serious about trying to keep those people out of it. So That was a good, good experience. And I still to this day, I represent a lot of healthcare providers and facilities, hospitals, nursing homes, ALS, that kind of thing, in their regulatory issues dealing with aka and the Department Health. Yeah,

I just think that gives you sort of a solid basis that we don’t see. I mean, you know, I teach the law school, the trial program, and I think the difficulty now, for young lawyers coming out, is getting any type of courtroom experience. So again, whether it’s admin or not, you’re on your feet, you’re on a judge that, you know, in front of a judge, there’s going to be an outcome. I mean, that experience is invaluable. And then I think prosecuting on that, and to then switch over and now defend has to be an interesting transition.

Yeah, I think that was kind of always my goal. You know, when I, when I got into it, as you know, young, my dad was a hospital CEO in South Florida for you know, his career. Right. And, you know, so I, once I got into law, and I started thinking about, you know, what I wanted to do, I knew I wanted to litigate, right, I like that I was enough of a ham, but I was an assistant cruise director, so I wasn’t up to talk to people. And I gravitated very much towards litigation in law school to my clerkships during and whatnot. So I think I always had the goal of going back and defending hospitals. This was sort of just a good jumping-off point for that. But it really did give me a good perspective. And I think, you know, you and I both know, we have friends on both sides of the aisle, quite, quite frankly, you know, some of my closest friends, you being one of them, are plaintiff’s lawyers. I think we all anybody who does this long enough begins to appreciate there are good plaintiffs cases, and there are good defense cases. Sure. And there’s a lot better in the middle. Well, the same thing is with from the regulatory side, right there were doctors that absolutely should have been prosecuted and ought to have some discipline. And there were many that don’t ever wind up doing that or need that same thing. During the transition to the defense side, I see the vast majority of cases that I see our doctors trying their best to do a good job. And we have an unfortunate outcome. Sometimes it’s a doctor’s fault. It is. And sometimes it’s not, it’s the inexorable process of whatever disease they had. Or it simply is a known complication, as you hear all the time. I mean, things happen every day to people, whether it’s in a hospital or driving down the road, that isn’t always somebody’s fault. Sometimes it is, but not all the time. So I will tell you that the one real aspect that I love about what I do, right, and I gotta tell you, I mean, you and I know tons of lawyers, and I don’t know how many enjoy it the way that you and I do I know you have a real, I think the word is a passion for it and, and it shows you’re a terrific trial lawyer. And we know the people that have that passion. And we know, we know, some of the dumps, right? I feel like I have that, that passion for representing healthcare providers. And I think it begins and ends David with the fact that my belief is these people wake up every day, to go to work to help people. I get to wake up every day to go to work to represent people who go to work every day to help people. And so I still think that that’s a terrific calling. So I really enjoy and I’m passionate about the opportunity to represent those people that have had that calling.

Well, and you do it well. And your reputation stands out there for a reason. Okay. And I think you’ve pegged it, you know because I was going to ask you, you know, what, what still makes you passionate. We’ve done it a long time. I think we see a lot of people in this profession. burnouts, probably too strong a phrase, but you know, they’re, they’re kind of done with it all, they still work hard, they represent their clients. But a lot of times you’re going more through the motions than then really pushing things, but I think, you know, you just exemplified the passion you have for this work. And you know, you see it and unfortunately, I see it when I’m on the other side of you because I know you’re going to, you know, we’re, everybody’s going to go through the paces at the top level. And again, on both sides of this, we’re problem solvers. Somebody comes to us with a problem. And the question is, and look, be easy if it was black and white. And we could plug-in algorithms and say, here’s the outcome doesn’t work that way. There’s, you know, more than varying shades of gray. And that’s why there are all of these disputes, because the ones that are blatant, one way or the other, either just blatantly a bad plaintiff’s case or bad defense case. Those generally get taken care of pretty early because lawyers on both sides look at it and go, Yeah, this is what we got to do on this and take care of it. But so let’s talk about the medical field a little bit only with COVID, which Just seems to linger on longer than we think and the impact that’s had but talk about how that’s impacted the practice of what you’ve done. We’ve talked about it over here. I think the Miami Dade County judges, our judges have done a really good job of continuing to try to push and adapt to whatever they’ve had to adapt to, to keep the justice system moving. So talk about the west coast a little bit. I know, I know, the Naples judges have been all on this. And you know, again, case management and moving cases. But how did it impact your practice?

Well, yeah, so obviously, it’s impacted our practice in our lives. And basically, what we do almost every day, right, I mean, we’re doing this by, you know, video conference, or zoom, or, you know, what have you. We’ve had to learn to evolve into working that way. And I think it’s not, I think it’s here to stay whether, you know, hopefully, COVID resolves, and it’s in the near future. But I think some of the changes that we have evolved into, I think, are probably here to stay for a while, the west coast of Florida, I think, has taken a slightly different approach to it than the East Coast. And you know, quite frankly, we’ve been back trying cases now, for more than a year, right. You know, we’ve had some, I’ll call it maybe soft openings of the courthouses, and then they were wide open, and then they would narrow back a little bit, but I think the West Coast, especially southwest Florida, so that’s our 20th circuit, right. So that’s calling your county, Lee County, Charlotte County, and Sarasota County, they have, pretty much we’re the first ones to jump back in after COVID and have live courtroom proceedings and have trials. So we, you know, we started back with trials where everybody was wearing masks, with, you know, sort of lots of precautions in place and bringing jurors in one at a time. And that evolved into bringing more jurors in at once. And then the mask mandates went away. And I think we were sort of the first ones, we were the line leader, at least in Florida, have a lot of that. And you know, a lot of that credit, quite frankly, goes to our judges that we do have a really terrific judiciary over here. And they were, they were motivated and interested in making sure that the people who wanted their day in court, whether it was the plaintiff or the defense, that they were getting that opportunity, and you know, you know, as well as anybody, that’s what, that’s what drives a lot of this case, that’s you know, got to have that to move the case. So, yeah, obviously, the changes that we’ve all seen, with a lot more remote access and remote working, that that was an evolution for us. Because, you know, I can tell you as a firm, you know, quite frankly, we were not really set up to accommodate remote working, you know, when we had to right, right, you know, we have remote access, obviously, but it was fairly limited. And not a lot of people utilize that back then. Back then two years ago. Right.

seems longer.

It does longer, but we you know, we very quickly adapted and, you know, I think we were navigating through uncertain times, because, you know, from our side, we were concerned are the cases going to continue to come in, are we going to be able to do the work at, especially at the level that, you know, wicker Smith requires and demands and holds themselves out to do that. And, you know, we learned, we learned very quickly, the people are folks, and I think, broader than just our firm, but the especially the young lawyers, were very capable of working and did do terrific jobs, working remotely, you know, a lot of the young lawyers 10 years and younger, when they went to law school, he was sitting on their beds with a laptop, you know, typing their briefs and doing the research. So working in that setting, as opposed to you know, going to the library or, or having an office to go to or a meeting room to collaborate kind of like what we used to try to do. They were perfectly comfortable sitting in a remote area and doing the work and getting it all done. So, fortunately, I think what we saw was that that translated into, into the young lawyers, and even the older lawyers like us, our ability to work from home and do that. You know, one of the aspects that we sort of did discover and this is that we do feel like our youngest lawyers, and our senior-most lawyers, we’re probably better off having that group in the offices, at least to some degree because the younger lawyers are going to it can be a revolving door in and out of my office and you know, managing Office managing partners offices, and they do need that direction. I know I needed it when I was you know the lawyers that are senior attorneys, senior associates, and junior partners, whatnot that don’t need the day-to-day, as much day-to-day help. Are terrific working from home and we have some that are, you know, that is there permanently for a variety of reasons or whatnot. But I think we’ve really seen that people can adapt right and accommodate to what obstacles get put in front of them. We’ve done that as a firm, you see it as a society. So, you know, I’m encouraged about where we’re going to go with some of the changes that have been made, I think the three day trip out to California to take an expert, probably winding down, you know because you can’t get over and back in a day and whatnot, that that deposition can now really effectively be taken remotely and on Zoom, and it’s a cost-saving to the client. I don’t think there’s there’s some aspect and dynamic that’s lost when it’s not in person. So I still try to do in-person depots of key witnesses. But, you know, there’s not a need to run out across the country for every single witness anymore. Like, like we used to have to do.

It’s, there’s not a need, except it was really nice, because that was a time you could grab a nice dinner with opposing counsel, you know, and make that trip. And I think I agree with everything you’ve said. I think the one component that gets kind of lost in that, though, is the camaraderie among lawyers, not only within their own firms. Okay. And, and I know for me sometimes, and we’re a small firm, but you know, just verbalizing things with Mark and going over things. One, either he comes up with an angle that I didn’t think, or sometimes I just verbalize it, come up with an angle. And the other aspect that I think is missed, although I agree with you haven’t motion practice, and everything via Zoom is so more efficient. But it might be running into that opposing counsel at the courthouse and grabbing, you know, accorded detail afterward outside and, and I think things move sometimes because of those dynamics, and they’re just going to be missed, you know, we’ve got to pivot and figure it out. But I missed some of that aspect and hope to some degree that returns.

Oh, for sure. I mean, you know, look, people used to talk about cases got settled, after the hearing from the walk out of the courtroom to the car because you write the opposing counsel, or, you know what, when you and I litigate against each other, we had depositions out of the state, we, we went to Ohio, we took depositions of one expert, we had, I don’t know a couple of our drive to take a deposition of another expert. And you and I shared a real car, and we were friends anyway, we would have done that. But that’s I would have done that with a lot of opposing counsel. Sure. And, and I do think you’re 100%. Right. You know, one of the benefits that your clients get and my clients get is the ability to develop relationships across the aisle, because it’s like anything, quite frankly, I feel like I am much more effective for my clients, if I have a good working relationship with my opposing counsel, as opposed to the, you know, some people want to just draw swords from the binding, and don’t want to try to work cooperatively, whatnot, I think part of our job is to, is to bridge that gap, you know, clearly, our clients have this divergent view of what happened and we’re never going to convince them right, I’m not going to convince your client that my client is right, and vice versa. But you know, by being advocates that are not personally involved in the event that we’re advocating for, it does give us that opportunity, to come at it from a little bit more neutral space. And I couldn’t agree more that the opportunity to have a one-on-one time or, you know, develop relationships and friendships is critical to our practice. And I do hope that I think that will continue, obviously, but I certainly do agree that’s part of that has been lost with this.

Alright, well, we could talk about this for a long, long time. And I’m sure we will over other conversations and through Orange Bowl functions or just seeing you here in town or, or whatnot, but appreciate it. Always fun catching up and spending time. Hopefully, we we’ve taken this defense lawyer even though as a defense lawyer, you know, where’s the black hat? We wear white hats. Just kidding. But sort of taken that to show that you know here’s another guy, I think we can safely take off the kill list.

Wow, that’s terrific. I appreciate that. Bless that you have me on here and happy to do it. David.

Look forward to Kevin. All right. That’s another episode of First off let’s kill all the lawyers.