Episode 80: The Power of Legal Education & Appeals with Evan Bergeron

Scott Vicknair, Injury Attorneys, we fight for the win.

All right, good afternoon everybody, and welcome to the Overruled podcast, brought to you by the Scott Vicknair Law Firm. We have an exciting guest today, a close friend of mine from law school, Mr. Evan Bergeron. Evan is the Loyola Law Advocacy Center director and professor of practice, and he’s also a managing partner at the Winston Bergeron Law Firm. Evan, thank you so much for being here, we appreciate you being a guest today.

It is absolutely an honor.

I cannot tell you that I never would have thought years ago when we were at Loyola that we would be sitting here doing a podcast together. I don’t think we even knew what podcasts were back then, but did they exist 14 years ago? I have literally no idea. Miles, did they? He’s shaking his head, like probably. When did you all graduate law school?

Whoo, pretty close.

Pretty close, fellas, first of all, rude, looking at us like we’re some boomers, Evan, rude.

And with no offense to the boomers, it’s been a long time, 14 years since we graduated law school together. I was thinking and reflecting this morning about some great topics I want to get into on your practice and the law school and the amazing things you’re doing there, but to start, I was curious, for some younger lawyers who might stumble across this or listen, what are some of the mindset shifts you had to go through, from being that law student in 2011 graduating and thinking you’re going to go change the world, to now, 14 years later in practice? What are some of the biggest lessons or mindset shifts you’ve had over the last 14 years?

Without sounding depressing, because it’s not meant to be that way, but it is, yes, you can make a difference, but you have to make a difference within the confines of what is possible. So, of course, I came out of law school and I’m like, I’m going to make a difference. Then I went into insurance defense, and I’m like, I’m not really making a difference here, and I was sort of upset about it for a while. But as I continued on, yes, I stayed in insurance defense for eight and a half years, but while I wasn’t really making the kind of difference I wanted to make through that work specifically, I was being given the kind of skills and abilities to make that difference outside of where I was working. So I was able to join some nonprofits, assist different people in different social justice initiatives. For example, I served as general counsel to a nonprofit called Fair Districts Louisiana, that was fighting against gerrymandering during redistricting. So a lot of students will come out, and I still see this, a lot of students come out and say, I’m going to come and go change the world, and we want them to, right, but the idea is they need to be able to do it within what they can accomplish.

Yeah, one thing, I was thinking of this quote I saw like two weeks ago, sometimes we overestimate what we can accomplish in one year, but we underestimate what we can do in ten.

For sure.

We don’t think about impact over long horizons as humans, the effects we can have on different things over a ten or fifteen year period, we think I can do all this in one year, and it’s very hard to do all the things we think we can do in one year.

Oh yeah, especially when you first come out into practice, you probably had the same challenges as me, the first year you’re like, I don’t know anything. I knew how to study for a bar exam, a law school exam, and pass the bar, great, that was amazing. But actually in practice, it’s a whole different universe than law school.

What was that transition like for you?

At first, because in my first job I went into, it was very much a throw-me-into-the-deep-end-and-see-if-I-can-swim situation, which has its own benefits, but at the same time I felt like I learned to do things and not the best way. All of a sudden it was, all right, you gotta draft an answer, well, I don’t know what an answer is, here’s an answer, do it based on this, that kind of thing, but it never really told me why, or told me what I was supposed to do. So the learning curve is always so harsh. But knowing that now, anytime I have a young lawyer working for me, or I’m trying to teach someone skills, coming from an educational background now, I go into theory with them. My former associate had never drafted an answer before, so I sat down and gave her a 30-minute clinic, this is an answer, this is the purpose of an answer, this is an affirmative defense, this is why you do it this way, this is what you’re doing as it relates to the individual allegations. So young lawyers should not be discouraged, because yes, it’s supposed to be hard, it’s going to be hard, legal education teaches you how to think, not how to practice. I’m trying to do that a little more lately, in the class I teach and stuff, but it’s going to be hard, it’s going to take a second, but that’s all right, as long as you have a good teacher, someone willing to be generous with their time, you can figure it out.

I think you hit on a key thing, some of why, especially in the legal profession, and I don’t think it’s limited to legal, it could be from anybody, some people don’t take the time when they’re training someone to explain the why. Early on, when I had young attorneys work for me, I was just as guilty as other practitioners, to be honest, because you’re racing between 12 million different things. But I’ve learned over the years, the more time I invest in my team, whether it’s the lawyers, the marketing staff, whoever it is, and take the time to explain the why, it just clicks quicker, and it saves you time on the back end. So you think you’re taking too much time training this young lawyer, but if you invest the time in the why early on, you’re going to get it tenfold on the back end, right?

For sure, every industry can learn this, because when you teach them the why, you’re empowering them to make their own decisions going forward, the right decisions, without having to come to you every time. They understand why you’re doing it a certain way, and then when something comes up they understand that theory and can say, okay, in furtherance of that, I bet if I do this, this is right, and nine times out of ten they’ll be right. Sometimes they just miss it completely.

Tell all of our listeners, if you will, Evan, I’m very familiar with the Advocacy Center, it’s an amazing piece of Loyola’s law school. Katelyn and I were both active in it with you when we were in law school, but tell listeners a little about what falls under the umbrella of the Advocacy Center at Loyola.

So what I always lead with, whenever I greet new students or prospective students, I say the Advocacy Center is like the college athletes of law school, except every one of our students are going to go pro.

Great line, I know, we’re proud of it.

So what we do is, we’ve got different programs that are competition-based, co-curricular. For example, you learn how to do appellate advocacy, writing briefs, giving oral arguments, that’s moot court. You learn how to conduct a jury trial, evidence, taking witnesses, opening and closing statements, that’s trial advocacy. You learn how to negotiate with another side, how to do mediation, that’s ADR. So we have students selected for these programs, we teach them those skills, and then they go to different competitions across the country to compete against other schools using those skills. Moot court, as you’re well aware since you’re one of the best, not to toot your own horn, but as a member of the moot court national team at Loyola you were literally the best in our school, you write a brief and then argue in an appellate oral argument competition against other schools, tournament style. Trial advocacy, same thing, you get a mostly fact-based fact pattern, we’ve got a team right now doing white collar crime that’s going to Georgetown.

That’s amazing.

We’ve got another one doing something that’s usually civil, I don’t remember specifically, but I think it’s damages-based, which is kind of strange. That one goes to Houston, I believe. So there are all these different ways to compete. And then ADR, which we’re focusing on a lot more recently.

I think that’s amazing, by the way, because we didn’t really focus, I don’t even know if ADR was set up when we were in law school.

I don’t think so.

But that’s a big part of private practice, so if you could tell them a little about that.

Yeah, you’re absolutely right, negotiation, I think you’ll agree, is primarily what lawyers do.

100%.

So while we can and should prepare our students to go try a case, prepare them to do an appellate argument, you use negotiation not only in every aspect of your law practice, but in every aspect of your life. So this year, for the first time, we had an intramural negotiation competition where students signed up, we gave them a fact pattern, did a little clinic, and they came in and did a negotiation competition just like you’d see anywhere else. That’s how we selected our ADR members. Those students get instruction from mediators, arbitrators, incredibly skilled negotiators who negotiate million-dollar deals or settlements, and they come in and say, these are the skills you need, this is how you do this, always negotiate from a position of strength, never negotiate with yourself, all of those things we didn’t know coming out. So we’re leaning into that because we recognize that’s what the practice of law demands, and what life demands.

I love it, because for listeners, on the other side of it, for me moot court, while it’s appellate advocacy, it’s translatable into motion hearings, oral hearings, even opening and closing arguments in jury trials. It’s prepared me, even though it’s not the same format. But at the firm, at least how we handle things, is get the case set for trial, push it to trial, so you have the trial advocacy and moot court skills translated to that aspect. But we’re negotiating every, hell, we’re talking about settlement in the middle of trial, some cases settle after the jury’s been selected, so the settlement process happens in a parallel universe with the trial aspect of every case. It’s really amazing to me that y’all are focusing on that now, because it wasn’t happening when we were in school, nor were we really trained for it.

Yeah.

Tell me a little about your role, it’s candidly unbelievable that you’re managing a law firm and doing what you do, I don’t know how you have time to be on the podcast. How rewarding has it been? You’ve been in this role for three, four, five years now, how long has it been, Evan?

I’m in my fifth year as director. Before that, during COVID, I got brought in on a contract basis as what was called team coordinator, since everybody was competing virtually, I was just helping them set up Zooms and stuff. But yeah, I’ve been the official director for five years, or we’ll be five years in May.

Congratulations, that’s amazing. So you’re directing a lot of the programs along with Monica and the other team at Loyola, and I’m assuming you get to interact with students a lot, pretty regularly. What’s been the rewarding part of that for you?

I just really love it. The manifestation of how much I love it is that right before I was here, I was at the Pontchartrain Center, because all the new lawyers were sworn into practice today. And you see former students who are now lawyers that you interacted with for two years, because usually I don’t see them in the Advocacy Center until they’re 2Ls, that you laughed with, cried with, picked back up when they fell down, you lived through experiences with them, not only as an instructor but also sort of as a partner. You see them grow, and finally achieve what they’ve been working for so long, and it’s, I’m not a parent, I don’t know if I ever will be, but it’s the closest thing I think I can get to having actual children, wanting them to succeed. It’s fun to me, thinking through things with them, working with them, bringing them into my office when they have a question, we talk through it, they’re working on some issue and say, I think I might want to make this argument, and I say, let’s talk that out, let’s extend it to its logical conclusion, that kind of stuff. I come from a family of teachers, my mom was a teacher, my sister Chelsea was a teacher, now an instructional coach, oh, by the way, had a baby, they live in Latrobe now.

Oh, wow.

I know, from P-4 to Latrobe.

I know, I said you wanted to stay in Assumption Parish that bad, that’s only for the people who know. Chelsea had a baby, congrats. But yeah, it’s really being able to be with them and interact with them and help them grow, which is the most rewarding thing I think I can and will ever do.

It’s very suited for you, me and Katelyn talk about it all the time, how great of a job and amazing it is that you’re in that role. When we were in school they didn’t really have that role, I mean Monica’s amazing but she’s spread so thin, one of the best professors at the school, involved with the bar examiner, all over the place. So it’s really amazing they’ve set up this role for the Advocacy Center, and how someone like you, so dedicated and so good at it, is in it. I’m curious, Evan, can you tell me a little about, I know you were on the First Amendment team, which went all the way to the semifinals in your competition, and you coached two teams, and you were on the moot court board, you were like a moot court rock star. How have the skills you learned in moot court translated into your practice over the last 14 years?

It’s great. First, I love writing, and I think I tend to be a pretty good writer. I learned it from that, because as you know, we had to write briefs, grade, review other briefs to make sure they were okay. So really focusing on the writing aspect, and that being a big part of my career now, that’s where it got started. But the oral advocacy bit, literally, in any situation where someone is asking you questions, or you have to interact with someone and think on your feet and come up with an answer immediately, that’s where that came from. As you know, you did it more than I did, because you did it twice in law school, I did it once.

A lot of practices too.

Exactly, and it’s over those practices where you really hone the skills, but you also teach your brain how to come up with something so fast in order to answer. I’ll tell you now, I am an oral argument junkie. You give me the opportunity to be in front of a court of appeals, I could be having my head bashed in by three judges, which has happened a couple times before, and I have never felt so alive. It’s the way that I learned I loved it so much, I learned I was good at it, and I wanted to keep doing it. But those skills themselves translate into general written communication, motion hearings, being interviewed, it’s all of it.

Yeah, one of the biggest tricks, this is the one that sticks in my head more than any, because as a practitioner, I’m actually going to argue at the court of appeal next month, it’s been a long time since I got to do that. This is one of my cases I was involved in, but as a general practitioner now, if you’re not in a focused appellate practice, which yours is becoming and has become, which we’ll talk about in a second, a lot of the times I’ve found the skills translate into interlocutory motions at the state court level, interim motions, summary judgments, compels, that type of thing. For me the biggest trick was, you don’t realize that a person, when you’re just having a conversation, sometimes we want to explain without answering the damn question. In all of these moot court practices I was always taught to either say yes and then explain, or respectfully no, judge, and then explain why. Because when you flip it, it’s a small thing, but when you answer the question, you’ve got the listener at least engaged, when they initially hear you fumbling around and explaining, they haven’t heard an answer.

Right, that’s our DRAT method. DRAT stands for direct answer, reasoning, analysis, transition to argument. You always start with a direct answer, regardless of what it is, you have to directly answer the question first, and then tell them why. It’s a small thing and people could think it’s not impactful, but having practiced 14 years now, I 100% disagree. You see a lot of the trial court judges we have, they have a full docket, they want to know, give them the answer, explain why, and then you’re going to earn more credibility with them to listen to other things you may have to point out. I learned all that in moot court.

So it’s amazing to me to hear that a lot of that has also translated into your practice. Tell everybody a little about Winston and Bergeron, about the firm, and what your practice is focused on now.

Cool, for sure. So, I’m the managing partner, there are currently three lawyers in our firm. It’s me and Sam Winston, who’s also taken a role now as an executive with French Truck Coffee.

Amazing.

So he now has two jobs too, but he’s pretty hyped up on caffeine, so he can handle it.

Yeah, for sure. Wait, you know what the funny thing is? I don’t even think he drinks coffee.

Oh, I know, I think he’s a tea guy, to be honest.

I mean, I expected to come to Winston Bergeron and there’d be French Truck coffee everywhere.

We’re working on it. And then we just hired an associate who got sworn into practice today, Ashley White.

Amazing.

Who was also a moot court national team member and a brief writer.

Amazing, see? Her name is also on the marble.

But anyway, so my current practice is a little varied, we mostly cater towards businesses, representing businesses against other businesses, a couple of general things here and there. I have two civil rights cases I feel very deeply about, that’s the way you make a difference within the confines of what you can do. But otherwise, it’s appeals, all appeals all the time. So we typically just market to other lawyers, it’s rare that we’ll get a cold call from a client who was dissatisfied with what happened in district court, but it’s happened before. One of our most recent appeals had to do with fraud from a combined purchase from a Texas vendor in Oklahoma, and at the US Fifth Circuit we were arguing Oklahoma fraud law and statute of limitations law, which Oklahoma isn’t even in the Fifth Circuit. So we’ve taken whatever we can, because it’s fascinating to me, you’ve got the record right there, you know what’s happened, you just have to learn the law and be able to advocate for your client. We take referrals from other lawyers, cold calls from clients, we’ll still do some criminal appeals and stuff. But one thing I’m trying to impress upon other lawyers, and even clients who have lawyers, if your case has gone to trial, spend the money to bring in appellate counsel. Because, when you’re in a jury trial, you’re hyper-focused, you know exactly what you’re doing, and you will miss things that may need to be preserved so you can bring them up to the court of appeals if things go wrong, or if things don’t go wrong and you win, and you want to make sure you did everything you were supposed to do. Prime example, I was in a jury trial in civil district court, and the plaintiff’s attorney, I was representing the defendant, on closing went completely off the rails, started saying something about how they had surveillance on them and just didn’t bring it up because it was bad for them, that kind of crazy stuff. We were going to win, it was evident at the trial court level, but when he said that, the lawyer I was working with said, all right, we’ve got to go in the back and file a motion for a mistrial. I said, why, we’re about to win this. He said, because you’ve got to preserve it for the court of appeal, in case things go wrong and we lose, if we didn’t move for a mistrial here, we can’t bring it up, it’s waived for purposes of appeal. So there’s a lot of that. And a lot of really good practitioners, early in my career I stepped in the golden rule in my first jury trial, stepped in that big old puddle, luckily a corrective jury instruction fixed it, we were able to deal with it and it wasn’t a mistrial. But the opposing attorney in that case, still very good friends with him and we have a lot of cases against him, he had to move for a mistrial because of that, and that’s one of the reasons I learned from my own screw-up, I learned that he had to preserve it for his client. There’s way more than that, so many things you’ve got to pay attention to that you can’t do as first chair or even second chair, which is why, if you’re going to trial and it’s of any significant value, if you’re trying like a $30,000 case, maybe don’t spend the money for this, but have appellate counsel come in a week or two before, get them up to date on your trial strategy, let them know what you’re going to do, make sure they see the exhibits, and then they come, they sit there, they don’t do anything except tell you what you need to do and things you missed, stuff that wasn’t in the record but you need to get in there.

That’s a great point, I never even thought about that, having appellate counsel at the trial court.

Spend the money, it’s worth it.

Now let me ask you, of the appeals you’re handling, Evan, you mentioned some criminal, is it like 80, 90% civil, 10% criminal, what’s the balance like?

We try to be 50/50. Sam is a former white collar criminal defender, still kind of is, pretty much, and he’ll really take the lead on those criminal appeals. We have our associate Ashley who’s going to work on those, I work on them a little, but more to the extent of, are we writing this correctly, is this the most effective way to say this. But the civil ones, that’s my jam, because I will learn any law, we learned Oklahoma fraud law.

You also were a civil practitioner for many years before you started focusing on appeals. It’s nice to have a practicing lawyer be a practicing lawyer, I think, before they become a judge, because they see the practitioner’s side, not just the judge’s side. It’s nice for appellate counsel to not just have always been appellate counsel, but to understand the day-to-day of being a civil practitioner.

Yeah, because the first thing that starts with appeals, you’ve got to look at your record, and the appellate court record is literally everything that happened in the trial court, but you have to make sure it all gets put in there. If you don’t say it on the record and it’s not taken down by the court reporter, it’s not in there. If you get a piece of evidence the judge doesn’t let in and you don’t proffer it, which is outside the presence of the jury and the judge, you say, okay, now I’d like to put this piece of evidence into the record, the court of appeals is never going to see it. That’s where you start. And the proffer I mentioned earlier is a big one because we don’t learn proffers in law school.

Nope.

A lot of younger practitioners, or other practitioners we’ve dealt with, don’t understand the proffer, that if you can’t get evidence in the record and the judge blocks it for whatever reason, you have a right to proffer it, because if it’s not there the court of appeals can’t consider it. The court of appeals is going to say, oh, you had a problem with this piece of evidence not being put in the record? All right, where is it? I’ll tell you a funny story that just made me think of, a couple years ago we tried a case and got a very multi-million-dollar verdict, and the case settled, so I’m not hurting the client by mentioning this now. I realized after the case was over, and we were in post-trial motions and the case then settled, one of the things I was freaking out and having cold sweats at night about, was that I realized this was the sitting trial court judge’s first jury trial she had ever done. She was wonderful and admitted this was her first one, the lawyers were almost helping her along a bit, and she did a great job. But I realized a lot of our evidentiary objections that we were dealing with at the bench, she didn’t have a microphone on the bench, so I don’t think the court reporter caught a lot of the objections and rulings on the record. I remember thinking this is going to be a cluster, because there was even a specific piece of evidence we got in that was heavily fought and should have been admitted, but I was nervous it wasn’t on the record, and what, were they just going to look at it and say mistrial, you gotta retry it? And that was 12 or 13 years into practice, 50-something arbitrations and trials later for me, and I can’t believe I didn’t catch that the microphone wasn’t at the bench.

Because you were focused on other things, that’s why. A bell counts.

Yeah, and as you know, having practiced a while, if you have a more experienced judge who’s been there a while, maybe that’s happened before and they’re like, counsel, talk into the microphone, but she just hadn’t, she didn’t know, God bless her. Luckily that case settled and it didn’t become an appellate issue that we would have screwed up by not having appellate counsel there.

Yeah, I got you. So one thing I wanted to talk about, Evan, I know looking over your bio, you’re admitted to practice not only in all the local district courts here in Louisiana, federally, and the US Fifth Circuit Court of Appeals, but you’re also admitted to practice at the United States Supreme Court. I don’t think a lot of people know that if you’re a licensed lawyer you can get admitted, but there’s a special process, and you actually get to go in front of the nine Supreme Court justices. I was hoping you’d tell us your story and experience when you went and got admitted.

Coolest freaking thing.

I knew you were gonna say that, because I know how much of a law nerd you are.

Oh my God. So yeah, you’ve got to fill out your form in advance, you have to get a sponsor, and get one more person to attest that you’re a good lawyer and not unethical or something, and then you send that in with your money. There’s an option on that form where you can just get admitted by written motion, someone who’s admitted to the court signs it, you send it in, they cash your check and send you back the thing. But you can do it in person, it sometimes takes a while, because when you tell them you want to do it in person, they send you a list of dates that are available, and they fill up quick. I sent my stuff in around February of last year and didn’t actually get sworn in in person until January of this year, so it took like 11 months. I wanted to do it at a time when I was already going to be there, and it was DC Mardi Gras weekend, so it worked out fine. You have to get a sponsor who literally makes a motion for your admission into practice, my sponsor, a dear friend and someone I absolutely idolize, is named Joshua Matt, he clerked for Justice Kennedy on the Supreme Court, also worked as counsel in the US House of Representatives for different proceedings, and has represented other people in very high-stakes, high-profile litigation, so it was super cool to have him there.

So you just had a case with him and brought it up, right? That’s the power of just asking, you asked him, hey, would you sponsor me, and then you get this amazing high-profile sponsor.

Joshua and I worked on some election rights cases in 2020 against the Attorney General, that’s how I got to know him. They allow you to bring one guest, so that was my mom. But my dad also came, because both of them decided they wanted to come up, but dad had to wait in line with everyone else, along with Mary Patricia, who I think you know, one of my best friends from law school, she came too, she was already there for DC Mardi Gras, she runs a political law firm now, very successful. It was 20 degrees outside that day.

Oh my God. So did your dad get in?

He just missed it, he was the last person, they stopped it right before him. They allow some general admission because there’s a regular docket that day. You can just go stand in line if you want to watch Supreme Court cases, they’ll stop it at a certain point, and if you get in, you get in. So me and my mom go in, we go to the admissions office and sit there, then your sponsor shows up, there’s a little script they give your sponsor, and you go upstairs, and we’re sitting, the attorneys arguing are right there, the podium’s right there, and Justice Amy Coney Barrett is like from me to that wall, 10 feet basically.

Yeah, pretty much. The court comes in, and the clerk, or I don’t remember what he’s called, he’s got a special name, stands up and reads our names in order, and each time our sponsor gets up and goes and says, Mr. Chief Justice, as Joshua said, Mr. Chief Justice and may it please the court, I move the admission of Evan James Bergeron of the bar of the state of Louisiana to the court, or something like that. And then the Chief Justice responds and butchers my last name and says he’s admitted.

But John Roberts said your name, John Roberts said your name.

Yeah, so there’s that, pretty cool. Then we just sit and they roll on with their arguments, we got to sit and watch a case from the Fifth Circuit, the question was on excessive force, whether an officer can reasonably believe they’re in immediate danger so they can use lethal force against someone else, and the question was like moment-of-the-threat doctrine. Essentially what happened was a guy was at a traffic stop and about to drive away, but he barely started moving away and the police officer jumped on the hood and shot through the windshield, excessive force case. The state was arguing that it was the moment of the threat, this whole period of time, and I think the decision came down and said no, that wasn’t reasonable, you can’t just decide somebody’s going to hit you with a car, which they weren’t, because if I remember correctly he was standing outside, to just decide you want to shoot.

Fascinating case.

So was your mom’s, did she sit right next to you?

No, she sat behind me, I could see her, but my mom’s a teacher, has no idea about lawyer business, she must have been excited, but she left halfway through the argument, one of the most fascinating, excessive force, police-related arguments, and she just left, because I turned around and she wasn’t there anymore. The cool thing about leaving the Supreme Court after arguments is you literally go out the front where the steps are, and there are all these people walking down, all these tourists, and I leaned over to Joshua, we took a picture up at the top, and I said, these tourists think we’re so freaking important right now.

That’s amazing. And I really do want to do it and bring my mom as a guest, because as a teacher that would mean a lot to her. I was also thinking, how do I get my dad in, I guess he’d have to wait in line and hopefully not get left out.

You just have to hope it’s not on a big argument day and get there really early.

My dad will just jump in an Uber and we’ll find him at the closest bar.

Yeah, that’s what Ricky did.

I just think it’s neat because you’ve got the nine justices right there looking at you, it’s an amazing experience. And what people may not know, it’s so hard to get to argue a case in front of the Supreme Court.

Oh yeah, nearly impossible, there’s this little niche practice in DC, Paul Clement is one of them, there are all these practitioners who are regularly there because they do it all the time. But I think if you argue a case in front of the Supreme Court, if you’re on the team, you get the quill pen.

Yeah, you do, you get an old-school quill pen, that’s like, I would want to go to Quill City. I have a friend, Jenny Green, we always joke about that, will we ever get to go to Quill City. The Fifth Circuit gives you a really nice ink pen.

Ah, but it’s just an ink pen.

It’s just an ink pen, but I started collecting them, I’m going to put them in a little shadow box with the pen, the date of the argument, the name of the case.

It’s something, but it’s not a quill.

When you get that case, especially now that you’re specialized in appeals, you gotta text me, Vic, I’m going to get my quill. I’ll know what that means. Oh my god, imagine that. Okay, before we close, Evan, I want to ask you a few questions. One I like to ask everybody, what is your superpower? You’ve built this great practice, now you’re focusing on appeals, it’s really cool and neat, and I’m excited to see where that takes you. You’re also doing all this amazing work with the Advocacy Center at Loyola Law. So what’s that one unique trait that’s helped you be successful in practice?

I think, and I hope it was on display here actually, that I feel I can do a very good job explaining concepts to people in ways that they’ll understand. I got that focus from, as you remember, Judge Higginbotham, who used to be Professor Higginbotham, he taught us when we were there.

He’s smarter than both of us.

Oh, by far, right, but the thing he always did was, if you didn’t understand something and came to see him, he would explain it, but then he would make absolutely sure whether you understood it, and if you didn’t, he’d explain it in a completely different way and keep going until you understood it. That’s what I always want to do, regardless of who I’m talking to, whether it’s a student, a colleague, a client, or a judge, it’s important as it relates to communication and getting your point across, that you get it across in a way the person can understand.

So you meet them where they are.

100%.

That’s a great point, and it definitely was on display with you, knowing you as I have. It always has been, I feel like you’ve gotten better at it, personally, knowing you back then and now, we’ve all evolved, I think, and worked on getting better. Professor, now Judge Higginbotham, is a great example, he was nominated by President Obama to the federal Fifth Circuit Court of Appeals, and he’s probably the smartest person I met at Loyola Law School, I couldn’t believe that brain. I’ve now argued in front of him at the Fifth Circuit twice.

Wow.

And it was both terrifying and incredibly comforting. Terrifying because we know how intense of a questioner he is, but comforting because it was like being right back in 308, he taught us evidence, he was never mean about it, never condescending, always welcoming and intellectually inviting, even though you knew you could never understand things at the depth his brain could.

Yeah. Evan, what’s your favorite book?

All right, it’s the Harry Potter books, I’m of the Harry Potter generation, but my actual favorite is the first one. And the reason is, I’m the kind of person whose brain really wants to get into systems, I want to understand how systems work, to see how someone has set something up. In the first book, an entire world is created, the world itself, as well as an educational structure, and a hierarchical structure of that educational structure. The way it was explained in such great depth and detail drew me to it significantly, so not only did you understand the world completely on the front end, but it set up all the subsequent books that were coming. That kind of stuff fascinates me. I always joke with my brother Stefan, who I think you know, on his wedding day we had to go back to where we were staying to get his clothes, he’d already gone back to where the reception was. We jumped in an Uber that was going to bring me to the place and then bring Stefan back to the other place, and I immediately pull out the Uber app, I’m like, all right, we’re going to drop me off and I’m going to change the destination so you can turn around, and Stefan literally leans over to the Uber driver and says, hey bro, if I give you a crisp $20 bill, will you bring me back to the hotel, and the guy says, of course.

So that’s the difference, I think, within systems, you think outside the box, he thinks practical, you’re really in the minutia of the system. But from an appellate standpoint, having that mindset and that brain really is helpful.

I think so, because the appellate system is a whole different system in itself, and a lot of times what we deal with in practice is the writ, which is like the interim appeal, not a final appeal, sometimes they’re frivolous, and 90% of the time the writ is going to be denied because it’s discretionary by the appellate court, not mandatory like an appeal. I’m always telling lawyers, go to the uniform rules of court, the rules of the road that you know as the system at the trial court level are not the same at the appellate level, and it’s the smallest things, like requesting oral argument via letter, that just doesn’t happen at the appellate level. I think that mindset, from an outside perspective, probably makes you a much better appellate advocate, because you understand the system and framework of the appellate process.

Thank you, and then at the federal fifth circuit, that’s complicated.

Oh yeah, they have that road map.

I’ve handled a fifth circuit case, that thing is, yeah, it’s like I needed the road map, because I had no idea what I was doing on the first one I handled in the DP clean process, it was a DP clean.

Anything we didn’t cover on appeals that you want to talk about, Evan? We could just keep going, but anything you’d like to chat about before we sign off?

No, I mean the one thing I’ll mention is, as you know, Loyola is hosting the Region Seven tournament for the national moot court competition, which is a really big deal, a national competition with regional rounds all over the place. The best students from each school will come here to New Orleans, November 14th and 15th, to compete for two spots to go to the national moot court competition final rounds in New York. We’re bringing in attorneys who are interested in judging, you can hop on the law school website, go to Advocacy Center, it’s under events, there’s a form you can fill out, we would love to have you. And other lawyers who are listening, if you want to get involved with the Advocacy Center, help us with teams, teach us something, or just interact with our students, reach out to me, you can find me on the law school website, we’d love to have you.

So the national competition coming up on the 14th and 15th, where’s the argument going to be, the Eastern District or the law school?

We are having the preliminaries and quarterfinals at the Eastern District, semifinals and finals at the Fifth Circuit.

Amazing. And what you may not know is, one of my best memories of all of moot court and law school, in my second year in moot court, I was on the cultural heritage law team with Daniel Shanks, Jeff Sweeny, and I’m trying to remember who our brief writer was, I think Shanks was the brief writer. We did the competition at the DePaul University School of Law in Chicago, and we won, but the finals was at the federal Seventh Circuit Court of Appeals, and it was actually federal Seventh Circuit judges judging the final round, which was amazing. So the fact that you’re making that happen at the Fifth Circuit for these students is amazing, because I remember as a law student it was really amazing and left a big impact on me, a great opportunity to argue in a real federal appellate court.

I know, right? And for judges and lawyers listening who are interested in judging, you can go to the Advocacy Center website to sign up. I also wanted to put another plug in for stuff throughout the year, we recently did a panel with some of the law students about the practical effects of practice, me, Kaitlyn, and Connor Little, three weeks ago, and it was so rewarding, just getting to talk to them for an hour.

It took an hour out of our day, so any lawyers listening, I know y’all are always looking for judges and seminars and things like that from practitioners, and can dedicate just a little bit of time, an hour or two, you definitely get way more in return for the time you give from being able to impact those students.

For sure.

Okay, Winston Bergeron, go check it out. What’s the website, if somebody’s looking for you?

It’s www.winstonbergeron.com.

Amazing. And are y’all on social media?

Yeah, I’m not as good as I should be, but we’re on LinkedIn for sure.

There we go.

We do have an Instagram I’m not good at updating, but I’m going to get better at it, I promise, but you can definitely find us on LinkedIn.

Perfect, and they can look you and your law partner up and find y’all basically anywhere, we’re in the age of the internet. So if you’re interested in appeals, that’s where you can find them. And if you’re interested in volunteering at the Loyola Law School for the Advocacy Center, is the Advocacy Center website different from the law school website?

You go to the main law school website, go under centers, and there’ll be a dropdown that says Advocacy Center, that’ll give you everything you need.

Amazing. Thanks for being here, Evan, amazing discussion, my friend.

Absolutely a pleasure, thank you.

All right, and thanks to all of y’all for listening. It’s been another exciting episode of the Overruled podcast, brought to you by the Scott Vicknair Law Firm. I hope you learned a little bit about appeals, a little about the Supreme Court, and a little about appellate practice. Evan’s a good friend of mine from law school, and I love having him on to chat. See you all next time.

Scott Vicknair, injury attorneys. We fight for the win.

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