Terry Weiss goes into the courtroom with three drums, that he beats in the "beginning, middle and end of the trial until we win."
The drums are a metaphor for the case’s three dominant themes, and the Greenberg Traurig securities litigator beats those drums early and often. "You tell the trier of fact what they are in opening, you use the evidence during the trial to develop them, and you tell them again during closing argument. The point, of course, is to reduce the case to the top three story-telling concepts that lead to the inescapable conclusion that our client should win."
Weiss joined Greenberg Traurig from Sutherland in 2009 and started the firm’s securities litigation and arbitration practice. Since then the Atlanta office has handled hundreds of securities litigation and arbitration cases for brokerage firms, with millions of dollars at stake.
He has tried more than 100 cases to award, with damage claims sometimes in the tens of millions of dollars and one case where plaintiffs’ claims exceeded $100 million.
Often he is retained to send a message to potential plaintiffs who are contemplating suing as a result of buying a product or service from a securities company and losing money.
"In those cases, you often have to dig your heels in initially, and the stakes are many times huge," Weiss says. If you potentially have many people coming forward with suits, and it is not just an isolated event, then frequently you have to take an early stand.”  Weiss analogizes those cases to football:  "It is often a battle with the plaintiffs’ bar for field position as to how the group of cases are going to come out; if you do not take an aggressive stance in the early cases your client may be viewed as an insurer of any loss down the road, with more and more people lining up expecting to be paid."
In many cases last year, Weiss and the Greenberg Traurig securities defense team saved several securities clients millions of dollars in alleged potential damages through the defense of complicated arbitration and litigation cases based on investments that were popular before the financial crisis but ultimately lost value. These investments often involved what some have argued had the toxic labels of “CDO,” “CMO” and “structured securities.”
In other cases the Greenberg Traurig team was brought in to handle motions to vacate adverse arbitration awards.  “These cases can be difficult,” said Weiss, “but arbitrators have an obligation to make disclosures about their backgrounds, and when they fail to do so, the resulting awards can be vacated.”
Weiss and his team’s approach is to look for the less obvious factual pattern. "We know the law," he says. "We’ve researched the law eight ways to Sunday. So we take the facts and look for, in that collection of facts, can we take something and de-emphasize the obvious or enhance that which is less obvious. That’s how you win cases."
He has a "barometer" for separating the important facts from those that just create more noise. "I tell associates that … someone discovers a great fact, but unless you can connect that fact into winning the case, I don’t want to hear about it. Because if you can’t connect it to winning, either (a) the fact has nothing at all to do with winning the case, or (b) you do not understand the case.
"It’s a great way to test oneself when swimming in the sea of seemingly endless facts of a case. We need to be solely focused on the end game of winning."
Weiss recently had a case in which an architect was suing a brokerage firm for $2 million in claimed investment losses. After digging around, Weiss’ team found out that the architect previously had served on the board of a community bank. The team obtained and read the minutes of every bank board meeting the plaintiff had attended. During closing arguments, they showed that he had information about the upcoming financial crisis long before the general public and commensurate with what the Federal Reserve knew.
"By doing that, we realized he had this expertise that was not apparent," Weiss said. "That’s what I expect from myself and my team."
Weiss says the closing argument is what he "lives for."
"You’ll probably have the plaintiff’s closing arguments with a 50-slide PowerPoint presentation. You’ll never see me with that many; maybe 10 slides. I use all forms of media like charts and easel boards to write on in order to make the point. Not everyone responds well to everything. We go back to basics and try not to be overly slick and use too much technology."
Playing off the plaintiff’s arguments is another favorite tactic. "We had a case where they’re talking about what my client knew or should have known and they were saying we were to blame. So the closing attorney had all these points and he wrote ‘Red flag’ next to each argument he was making. Well, we just walked up and crossed it out and wrote ‘Red herring.’ You play off what they’re doing and neutralize it. The burden of proof is on them."
Especially in the courtroom, Weiss is "focused, wanting to tell the story, explain it. That’s what my cases are all about. Human behavior. It just may not be as obvious as it is in other types of litigation."
Going forward, Weiss wants to continue to increase his national reach. "I came to Greenberg because I needed a national platform to service my clients effectively, especially in Florida where we have seven full-service offices,” he says.
He points to a case in which, although he didn’t handle the underlying arbitration, he was hired to overturn a $64 million FINRA adverse arbitration against Merrill.
"This is a great example of how my team has been able to use the vast geographic and substantive resources here to attract cases. In this instance, we were before the courts in California, where we have a significant trial and appellate presence. I was able to team up with specific lawyers who have had previous positive experiences with the trial judge and the California Court of Appeal and who could offer essential counsel in the matter. The Greenberg platform has allowed my team to handle significant cases like this in other jurisdictions as well.”
It’s all about telling the story and winning, Weiss explains.
"You know you are doing well when you can see that the jury, judge or arbitrators are not only keeping up with your story, but have connected the dots you set out such they are now ahead of you and know exactly where you are going with your story," Weiss says. "When that happens, you are likely to win that case."