A Conversation With Gallivan White & Boyd's A. Johnston Cox

As president of the Association of Defense Trial Attorneys (ADTA), A. Johnston Cox has a front-row seat to the challenges reshaping the legal profession. A partner in Gallivan White & Boyd’s Columbia office, Cox has spent three decades defending insurance companies and businesses in complex litigation, while helping train the next generation of trial lawyers.

Johnston, 57, has obtained an AV rating from Martindale-Hubbell and has been selected for inclusion in Best Lawyers in America for insurance and personal injury law. He has been honored by South Carolina Super Lawyers, a Thomas Reuter publication, for business litigation. Dedicated to the advancement of the legal profession, he received the ADTA President’s Award for Outstanding Service in 2021. He received the South Carolina Leadership in Law Award from the South Carolina Lawyers Weekly in 2017. 

Johnston is the current president of the Association of Defense Trial Attorneys, having previously served on its Executive Council and National Membership chair. At the same time, Gallivan White & Boyd partner Jennifer E. Johnsen has been named president of the Federation of Defense & Corporate Counsel, marking the second time the presidents of both organizations have been members of the same law firm. Cox is also a member of the Federation of Defense & Corporate Counsel (FDCC), having previously served on the Admissions Committee and faculty of the FDCC’s Litigation Management College. Johnston is also ranked by Chambers USA tier Band 1 for Insurance.

Also dedicated to community improvement, Johnston has served various charitable organizations. He previously served as a board member of Senior Resources Inc., the community advisory board for Home Works of America Inc. and currently as a member of the board of directors for Home Works of America Inc. – a nonprofit organization enabling more than 40,000 youth and adult volunteers to repair homes for elderly, disabled, or veteran homeowners across South Carolina. He also currently serves as a commissioner and secretary on the city of Columbia Tree and Appearance Commission.

In an interview earlier this year with Integrated Media Publishing editor David Dykes, he discussed challenges facing defense attorneys in trial settings, how attorneys can better prepare for the evolving landscape of trial law, the role technology plays in modern defense strategies, trends he foresees impacting defense trial practices, and how attorneys can effectively advocate for their clients while maintaining ethical standards.

Here are excerpts from that conversation.

Q.    Tell me a little bit about yourself.

Cox: I’m from Columbia, South Carolina. Born and raised here. Went to college at Washington and Lee University in Virginia and came back here for law school, USC, and graduated in 1995 from law school here.

Q. How long have you been with this firm?

Cox: We just came up on 15 years. We started at a firm called Ellis, Lawhorne & Sims. And in 2011, five of us came over here to start the Columbia office of Gallivan White Boyd.

Q. What’s your specialty?

Cox: I am a litigator, so defense litigator. I do mostly insurance-related litigation, insurance coverage, what we call, some people call bad faith litigation, but good faith litigation. I represent insurance companies and corporations in business litigation as well and some complex personal injury law.

Q. How many cases do you handle in a year?

Cox: Hundreds.

Q. How many of those actually go to court though?

Cox: Very few. One percent maybe. Which is a big change from when I was a young lawyer.

Q. You see a lot of advertisements in every market now.

Cox: Advertising’s always been allowed. It’s just they put some parameters on it, (South Carolina) Supreme Court did. It differs from state to state. It’s a freedom of speech issue. And so the advertising should be allowed.

… You know, in the next few years — actually, it’s already happening — is litigation funding and third-party litigation funding companies, private equity getting in the business of litigation. And that’s what you’re seeing on TV.

Q. How does private equity get into the litigation business? Just advertising?

Cox: There are a number of ways. Most people think of litigation funding as taking place in the big mass tort arena, mesothelioma, Camp Lejeune. And so what they do is they invest in the lawsuits. And all those ads that you see for Camp Lejeune — those are all funded by litigation funding companies.

Q. Is that what they do specifically? Those litigation companies?

Cox: Yep. And they’re not only in the big cases. They’re in tiny wreck cases. They invest in little wreck cases by giving, you know, plaintiffs money. And then they expect a return on that.

Whatever their settlement. They have contracts with doctors that they send these plaintiffs to. They’re in every facet of litigation right now. I bet there are very few plaintiffs’ firms in South Carolina that have not been approached by private equity to buy in, to invest in their law firms.

Q. Did you study this in law school?

Cox: No. This wasn’t even a glint in somebody’s eye in law school. But the thing is, I mean, you see it. You see the billboards. You see litigation has become big business. And it’s challenging. The Supreme Courts of the states across the country are looking into, you know, what’s the ethical boundaries of this. You’re not supposed to own, you know, have an owner of a law firm not be a lawyer because then you don’t know what’s driving the litigation. So that is going to be, and is, a big issue for the defense bar going forward. It’s the money that’s behind a lot of these lawsuits.

Q. What are the biggest challenges currently facing defense attorneys in those trial settings? I mean, you know, very few of those cases are likely going to go to trial.

Cox: That’s the biggest problem that we have is that very few of the cases that we have are actually going to trial. There are a number of reasons for that. You know, the ADR, what we call it alternative dispute resolution, mediations. When I first started practicing law in ‘95, mediation really wasn’t a thing yet, which is why we tried — I mean, I just tried two cases a week. Little wreck cases, you know. And that’s what we did. We tried cases. And not that it’s a bad thing. I mean, resolution is great. It saves everybody money. It does. But mediation has been very successful in resolving cases for the most part. And so the problem that creates for us is that very few young lawyers are getting that litigation experience that our clients need.

If the plaintiff’s side is not worried about somebody actually standing up and going to try a case, things get out of control. Right? And so that’s the biggest thing for us is going for it, and for our clients – is how do we provide those opportunities for our younger lawyers to get that experience. And there’s only so much we can do. But one of the ways is to join local, state organizations, defense organizations, and these national organizations.

Q. How many attorneys do you have either under your supervision or that work with you on these cases?

Cox: It ranges from what we’ve got going on. But I have four right now that are primarily with me.

Q. Other members of the firm?

Cox: Oh yeah. And that’s the thing about now, that people don’t necessarily have to be under this roof. I can have people in Greenville working with me, I can have people in Charleston working with me. We send a lot of cases to other offices within our firm. We might have a client that says, hey, I got this litigation in Charlotte, do you have anybody there that can help me? And I’ll turn that over.

Q. How you would tell young attorneys to better prepare for what is evolving landscape of trial law?

Cox: Definitely from the defense side, I would tell them to get involved in South Carolina in the South Carolina Defense Trial Attorneys Association, which is what I came up through. Our South Carolina Defense Trial Attorney Association is the best in the country, in my view, hands down. Providing leadership opportunities, providing CLE opportunities, practical learning opportunities. We have a trial academy for younger lawyers that we run every year. It’s full every year.

Q. How many people in that?

Cox: We have 24 a year. And the federal judges, the state judges, they’re very supportive of it. They sit as judges over the mock trials and give feedback to the younger lawyers about, “Hey, listen, you can do this better.” It’s a fabulous program that we put on. And joining these national organizations, DRI, ADTA is what I’m in. The other two defense organizations that are kind of, I don’t know how you term the sister organizations, Federation of Defense and Corporate Counsel, which Jennifer (Johnsen) will be president of here in July. … And the International Association of Defense Counsel.

I’ll do a little plug here for this. Our little law firm here in South Carolina, 70-ish members – when I became president of ADTA, we’re the only law firm in the world that has had presidents of all four of those organizations. It’s astounding to me that our attorneys have been able to rise to those positions.

Q. Talk about technology. We read every day multiple times, AI, this or that. How is it changing defense strategies?

Cox: It’s been interesting the way that the defense side has viewed AI. The conversation has shifted from why you shouldn’t use AI to, OK how do you use AI? What are the pitfalls of using AI? To, if you’re not using AI and you’re not getting your hands around it, you are possibly creating an ethical violation for yourself. So it is evolving at a very fast rate.

Q. Is it a great research tool?

Cox: It is, absolutely. And we’ve invested in it as a law firm. We have parameters around it because there are ethical considerations. But we have embraced it. We use it mainly for research issues. But it is a great starting point. It can give you some ideas. What you don’t want to do is rely on it too heavily.

Q. There have been plenty of avenues for you to do case research. How is AI changing that? Is it making it just faster?

Cox: Much faster. … It does save you time because you don’t have to sit there and manually do that search and then read all the cases and do all that. It gives you a good starting point. It does save you time.

… It’s changed everything from social media searches on people to data mining of vehicle information and cell phones and computers. In my lifetime as a lawyer, it’s been drastic.

Q. How does the association support its members in professional development overall?

Cox: The ADTA is made up of some of the best trial attorneys throughout the United States and Canada. And so we have prime members and associate members. I’m a prime. I can have an associate member, a younger lawyer who meets the criteria to join as well. And so through our meetings and our things that we do, you create personal relationships with lawyers from around the country who can, one, refer you business.

So that improves your professional growth. And so you’ve got a referral network set up all around the country. You know, “Hey, I know Johnston. He’s a good lawyer, good guy. I’m going to recommend my clients to him.” So that’s great. Like the other organizations, we have great continuing legal education programs that we put on at our meetings. So it allows lawyers to see trends and learn from those. Something that’s going on in California might not have hit here yet. Maybe the other side is making arguments or using tactics that have not started here, but we anticipate will soon. And so it helps you prepare for what’s coming.

It's also helpful for bouncing ideas off other lawyers: how do you deal with this? How do you respond to this line of questioning or these tactics that are being used? And so it really does help you become a better lawyer, for sure.

Q. What are young attorneys that you’re dealing with, what are they lacking? Is it just experience?

Cox: Experience, yes. This generation seems to have no problem being mobile as far as you know, changing jobs frequently. That’s just not something that we thought about or did really. This is my second law firm. I never thought I’d leave my first law firm. I was there for 15 years or almost … I’m talking about changing jobs, not careers, but just even moving around within the profession. Not that it’s a bad thing. This generation, and it’s not a bad thing, they like to feel valued. They want to do things that matter. They want involvement. These are all good things and these are all things that we’re doing our best to provide to these younger people.

Q. But as you well know, training, your law firm’s training and the experience that you have to give to someone who’s coming into your firm, it’s going to take time and cost money.

Cox: Correct. And so that’s an investment for us. We don’t want people to leave.  We want people to be here forever. And because that’s what you put the time into people and you train people. But just like any other profession, and now it’s becoming just like any other profession, when some of these younger lawyers get these skills and experience that you’ve imparted to them, you know, they’re wanting to make more money, right? They’re wanting to move on to see, well, maybe there’s something better out there. And so that is a challenge. Inflation is an issue. It really is. We’re moving targets. We’re raising salaries. We’re trying to compete with other large — we’re a smaller firm. We’re trying to compete. Some of these salaries that larger firms are throwing out there, we just, to date, haven’t been able to do that.

Q. What about your fee structure, given inflation? How is that affecting you?

Cox: Rates are going up, just like everything. We have to … we tell our clients, look, we can’t afford to hire the caliber of lawyer that you want to be doing your work at the rates you’re paying us. We just can’t do it. Not just lawyers. Staff. Everything is more expensive. … There’s a vast difference between how defense firms are set up and how plaintiffs’ firms are set up. They’re working on contingency. They’re paid by how much money they get for their client because they get a percentage of that. So they’ll take 40 percent of whatever. And so it’s a completely different dichotomy. We just don’t have that. We are billing by the hour unless we have a flat fee, some type of flat-fee arrangement. And it’s what the clients that we’re working with are going to be able to pay us to do it. And so, it’s a completely different dichotomy.

Defense lawyers are a dying breed. Let’s put it that way. We generally don’t lose young lawyers to defense firms anymore. They’re wanting to go more on the plaintiff’s side because of the net percentage thing we’ve just talked about. And so that puts pressure on us. We’ve got more work than we can handle. We’re having difficulty finding lawyers who will do what we do. We have to work hard.

Q. It’s not a 9-to-5 job.

Cox: It’s not a 9-to-5 job. … It’s a profession, and you have to invest in yourself. You have to put the time in. If you want to be a good defense lawyer, you just got to put the time in. A lot of people aren’t looking for that anymore.

Q. How do you take a young lawyer like that, with mediation being so important and most cases settled out of court, how do you prepare someone for that?

Cox: You’ve got to prepare them to be the best lawyer in the room. It is different. It’s not trial, but it’s still a — what’s the word I’m looking for? Adversarial situation. It’s not a trial, but you’re going into that mediation scenario trying to do the best for your client, give the best representation you can for your client and get the best outcome you can for your client in an ethical manner.

You got to be prepared. You hear mediators all the time. It’s like, you can’t believe what I’m seeing these days. People coming in, they don’t know the file. They don’t understand what the case is about. I think they picked it up 10 minutes beforehand. … You’ve got to train people to be able to spot the issues, to be able to, even in that environment, to be persuasive. You’ve got to be able to persuade the other person you’re talking to that No. 1, whatever the position is, No. 2, if we can’t get the case settled, we’ll go to trial. And then who knows what’s going to happen? Would you rather have some control over this today or would you not?

Q.  How can attorneys effectively advocate for their clients while maintaining ethical standards?

Cox:  That should be a real easy one. There is no case, there is no client that is worth my self-respect, my reputation, and my license to practice law. There just isn’t one. Never will be. I do believe that people come into this profession, and the people who are lawyers take that very seriously. I do think there are some things that entice people to maybe not act the way they should, mainly being money. And, you know, there are a lot of lawyers out there who are hanging out a shingle, don’t really have a mentor these days. Because again, a lot of people are going into a different side of it, of the law, that maybe could use a mentor.

Q. If you could go back in your career and do one thing differently, what would that be?

Cox: I have several lawyers working with me.  There are certainly times where I could make more time for them. And it’s a struggle because we’re busy. (I’d) probably value the personal relationships more than the work relationships – personal relationships with people I work with because you just get wrapped up in the work.

Q. You’re talking about socially?

Cox: Yeah, socially, personally. Just getting to be better friends with people I work with. I mean, we are all great friends. Our firm especially, there is an astonishing lack of hierarchy in our firm, meaning that associates, you know, kid and tease partners, and there’s a lack of delineation there, which is great. I love that.

We have a good atmosphere here. But especially now with these young lawyers, I need to put in more time on a personal level ... because they need that. They’re looking for that. They’re looking for affirmation and they’re looking for pats on the back.

When I was coming up, I mean, we just put our heads down and worked all the time. And that’s not what this generation is looking to do. They’re looking to have more fulfillment.