While every life story is unique, Minnesota litigator Rachhana Srey’s journey (and her whole family’s history) is particularly amazing. Ms. Srey was born in a chicken coop in a refugee camp in Cambodia and she is now a preeminent wage-and-hour class action plaintiff’s lawyer in Minnesota at the law firm of Nichols Kaster. Profiling Ms. Srey seems particularly timely given the currently hot issue of U.S. immigration policy. But Ms. Srey’s deep and impressive professional expertise makes for an interesting interview in and of itself.
Minnesota Litigator (“ML”): I’d like this interview to cover your professional life and your personal life in the sense that you have a history, which I think is remarkable and would be interesting to Minnesota Litigator readers. Let’s start with what we really cover, which is you as a Minnesota civil litigator. You have deep expertise in a particular area: collective actions and class actions on behalf of employees for unpaid overtime and minimum wages?
Racchana Srey: That is right.
ML: Is it as narrow at that?
R. Srey: Currently, all but one of my cases is a wage an hour class or collective action. I have one here in Minnesota that’s pretty large and significant and then other cases all around the country that are either overtime pay or minimum wages or both. Then, I have a large class action age discrimination case that, while it’s only one case out of however many, it takes up a significant amount of time.
ML: Your practice is far broader than just Minnesota?
R. Srey: It is far broader than Minnesota. I wish I actually had more cases in Minnesota but we end up having a lot of lawsuits with companies that are located all around the country. We end up in California, New York, from east to west all over in terms of these wage and hour cases.
ML: How long have you been doing wage and hour cases?
R. Srey: When I started the firm in 2004 I actually did both individual employment discrimination cases and wage and hour cases, so I definitely had more of a practice in Minnesota earlier in my career. Back then, I only had a couple of the wage and hour cases, one was in Minnesota and couple were elsewhere. As I progressed in my career, I had to make a choice in terms of “do you continue to handle the individual sex discrimination, age discrimination cases that are here in Minnesota or focus more on the class action type practice that takes you elsewhere and has a lot more travel required?” Even though I had a couple of small kids at the time, I decided to move more towards the class action route. It was difficult, I think, to sort of manage both because I wanted to give the same amount of attention and detail and work effort to the individual cases but there was always something massive, huge, happening in the big class cases that would take me away from the individual cases.
ML: What is the average duration, if you can estimate it, of the individual kinds of cases from start to finish?
R. Srey: For an individual employment case I would say probably a couple of years. For a class case, I worked on a case for seven years and we lost at trial. For this current age discrimination case, we started working on it in 2012 and I thought it was going to wrap up in a couple of years once we got involved. There was a solo practitioner who was handling it from Tennessee, he brought us on and we thought it would wrap up a few years afterwards. Now, it’s been five years and we’re still going.
ML: I noticed in your profile on your law firm website it talks about your “exceptional case management skills” and I’m curious what that entails.
R. Srey: That’s funny that you point the profile out. I literally just emailed my assistant yesterday and said, “Can you send me by current firm bio because I kind of want to revise it a little bit,” just to add more stuff and probably even take out the “exceptional case management skills.” But, I would say that I think I, with these big class cases and having to manage all the various moving parts and all the different staff that are on it, just keeping really good detail of the facts. For example, in one of my earlier cases, I defending 100 depositions. I was able to keep track of those witnesses and the evidence related to each individual person. I think it takes good case management skills to be able to keep track of your clients and the stories that they individually have to tell even though it’s a larger class case.
ML: I’m a little bit of a techno gadget freak….
R. Srey: Yeah, so technology definitely helps in the case management skills world.
ML: I was going to ask you what your go-to tools are when you’re dealing with, what I have to assume, are millions of pages of documents and hundreds, if not thousands, of parties or people involved in these big lawsuits?
R. Srey: When I first started we used Summation and I remember distinctly really liking it and probably being one of the only few people that did. I felt very proficient in it in terms of the documents and tagging various issues and having a good handle of what we had. Then, we recently switched to Relativity. I confess that I’m not proficient in Relativity and I think part of it is as you progress in your career you have other … You become a partner, you have associates that work with you and then they become super proficient and then you rely too heavily on them. I actually like knowing how to use all those things because I like just being able to get in the system and know exactly what I’m looking for rather than being like, “Hey, associate, can you find this document for me?” I’m way too guilty of that right now. That’s how we manage our documents.
With the thousands of clients that we can potentially have in a case, we manage each of their individual information in a different database, that’s our client database. We’re in the process of switching that over as well. Our firm, I can proudly say, has been pretty tech savvy over the last … since my time here. We’re constantly looking at different systems that will help us do our jobs better. To the point where it’s annoying probably to some of the people because we’re constantly changing. We’re always looking at the best, bigger, most efficient system.
ML: Paint a picture of what your favorite day at work is like.
R. Srey: When I come in to work and I know that there are a number of specific things that I need to get done for the day, I don’t get pulled away, and I get them done. When I have the time to strategize with other people. I love working in a firm with the amount of people that we do because you can always strategize about something. I think it would be hard to just think to yourself and not be able to knock on someone’s door.
I had a very productive day recently. I had three things on my list. I got them all done and I still had time to have lunch with a co-worker, strategize with someone else about their case, and left at a reasonable time to go home and make dinner for my family.
ML: For your least favorite days, I suppose we can just reverse engineer from what you just said: unanticipated crises and long hours due to things you hadn’t seen coming. Is that the nightmare day?
R. Srey: It is the nightmare day. It’s the day where you just sort of feel like you have no control. I like having control over my work day and being able to plan it out…
Sometimes I’ll get a letter … The last thing I want to see at like 6 o’clock at night is an ECF [ed. note: “electronic court filing notification”] pop up on something where an adversary is bringing a BS motion on something or saying things that are untrue to the judge and then you … I tell myself, “It’s 7 o’clock, I’m not going to read it. I can wait until tomorrow…” But I can’t not not read it. So then I open it up, I read it, and then I’m just like full of, you know… if fire could come off my keyboard, it would be.
ML: You mentioned that case went to trial and you lost…was that a wage and hour case?
R. Srey: It was.
ML: I would have thought that wage and hour cases don’t go to trial.
R. Srey: That is a common belief and I think that rings true for a lot of people. I don’t know if I’m lucky or unlucky but I’ve tried four wage and hour cases and that may be more than the average person. Between 2011 and present day or 2011 to 2015, so within a four year window, I tried three and lost the first one, that was the case we had worked on for about seven years. It was a devastating loss, I could say. You think about the blood, sweat and tears that you put in for that many years and just the pure attorney time on it.
That was in March 2011. That same year I went to Tennessee and tried a case as an associate. I went with another Nichols Kaster associate. We partnered with an attorney in Memphis who was a great trial lawyer and we tried that case, the three of us and we won that trial. At the end of that year, the firm gave me the “Honey Badger Award,” the first annual and one time only Honey Badger Award. They made a T-shirt that had a picture of a Honey Badger on it and played a video at our firm holiday party. I’d never ever heard of it. Apparently the Honey Badger gets kicked and can get back up pretty easily.
The third trial was in 2015, February of 2015. It was pretty cool. It didn’t go exactly like this but almost: I had a lawyer email me several months before the trial and I swear the email said something like, “Do you want to take over my case?” I was like, “Who is this?” I didn’t even respond because it was sort of like, “I don’t even know what this is talking about.”
Then, there was a follow-up email that said, “Hey, I’m wondering if you got my email. Curious as to whether you want to be involved in this case?” I decided to call up these lawyers I’d never met. They said, “We’ve read a couple of cases that you’ve had that were similar representing a group of employees out in New York. Our case is in Texas. Would you be interested in talking to us about potentially coming on board and taking it over?” I talked to them and it turns out their facts were even better than my facts so I said, “Sure, we’ll do that.”
They’d been litigating it for a while so I thought the case might settle because it had good facts. I ended up taking a few depositions and got good testimony but the company didn’t want to resolve it. We won affirmative summary judgment on liability and then had a trial in damages. Of course, you think, “Now they’re going to settle, it’s just a trial on damages…” Nope.
I actually have a really funny story about the trial. In Texas, they set the trial calendar so you only know the month of trial. The trial was calendared for February 2015. I was literally sitting in a conference room on January 27th or somewhere around there. I had called a meeting with the other wage and hour attorneys to brainstorm some ideas for the trial. We were in the glass conference room in our office when one of the paralegal s knocked on the conference room door. She said, “Rachhana, Judge so and so is on the phone for you.” I thought, “This is weird.” I get on the phone and opposing counsel is already on it. I thought the Judge was going to get on the phone and tell us that the trial was going to be the end of February or maybe even moved to March. Instead, the Judge said, “So, I’ll see you guys on Monday. Trial is starting February 1st,” or whatever that day was. It was a Thursday and we had to be there and the trial was starting on Monday. Everybody was just like madhouse for two days, printing, stuffing things in boxes and we went down there.
I prepared, what I thought, was a good opening statement because this Judge said he wanted opening statements. But at the start of trial, he said, “I already know all the facts about this case. I don’t need an opening statement. Call your first witness Ms. Srey.” …You just kind of roll with the punches.
Then, my fourth trial, I was the second chair on it. It was very early in my career. That was a breach of contract case actually. It wasn’t a wage and hour but it was a breach of contract class case with Steve Smith from my office. It was in, I want to say, Fergus Falls, Minnesota and bench trial. On the way there Steve said something to me like, “So, you’re going to take the first witness.” I was a first or second year associate and I thought, I should probably watch a trial first before I take the first witness on my first trial but he said, “Oh, you’ll be fine.”
ML: You did take the testimony of the first witness?
R. Srey: I did.
ML: And you were fine?
R. Srey: Yeah, and it was fine.
ML: The Texas one was a bench trial?
R. Srey: Yes.
ML: The breach of contract case was a bench trial?
R. Srey: Yes, and the other two were jury trials.
ML: Are you a believer in the jury system?
R. Srey: Yes, I believe that they do their job and they can get it right but I also believe that sometimes they are just like everybody else, susceptible to jury nullification. I just felt like the first trial I mentioned was really all about jury nullification because the jury had to answer one specific question and we actually got to the jurors afterwards and the issue came down to whether their primary duty of these individuals, the certain workers, was sales. That’s the question they had to decide on their verdict form. They said no, which obviously we thought the answer should be yes. When we talked to them afterwards we asked, “What was their primary duty if you didn’t think it was sales?” The jurors simply had no answer. There were all sorts of jury nullification type arguments in that trial.
ML: What kind of business was involved?
R. Srey: It was a loan company and we represented loan officers who were claiming overtime. I just think that a jury layperson has a hard time giving money or finding the loan officers to be deserving people. It didn’t change that their primary duty was sales. To the jury, I think it was just more of like “Do they deserve it? Are they the type of people that we want to give overtime to?”
My second trial was jury trial too. I think I learned a lot of lessons from the first trial and that prepared me for the second trial.
ML: There are many readers of Minnesota Litigator who have less trial experience than you: so what are some key lessons?
R. Srey: In my view, a jury expects a sophisticated witness. A sophisticated witness may not be the right way to put it….I mean a witness who’s prepared to testify. In the first trial, I think we sort of struggled with how much to prepare our witnesses. You don’t want them to look too greased up, like they’re professional witnesses or anything like that. I struggled with the right balance.
When I went to my second trial, I determined that we’d have to thoroughly prepare our witnesses. “They’re coming in here and they’re asking for an award of money, so they better know what they’re talking about and how to describe their claims and what they’re asking for.” I think those who sit there in the jury box have an expectation of how they think the proof is going to come in and what the witnesses are going to look and sound like. They see PowerPoints, different presentations of evidence, and whatever. After the second trial, the jurors told us, “You guys just looked really prepared.”
ML: That leads me to another question, a tech question. Do you use TrialDirector?
R. Srey: Yes, we did both of those jury trials.
ML: Is that your “go-to” technology at trial?
R. Srey: It has been but we are looking at … I’ve been very curious and have said in my next trial I would really like to try TrialPad. I saw a presentation by some lawyers who I respect and know do a great job at trials and they said it’s so easy to use and it’s very cost effective and you can just do so much on your iPad with circling, blowing up, all these different things that could be very beneficial from a presentation standpoint.
ML: Some years ago I remember your Nichols Kaster colleague, Matt Morgan, advocating the benefits of mock juries and commenting that many lawyers overestimate the cost and underestimate the value. I’m curious, did you have mock juries before your trials? Do you advise others to use them?
R. Srey: Here’s the irony of it all, that first trial that we lost in 2011 … I’ll just comparison of the two trials in 2011. For the one we lost, we did a formal mock jury and we hired a fancy jury consultant. We mocked it several times over several years because the case lasted forever, right? Even before we briefed summary judgment, we wanted to just know what really mattered to people. With each of the mock juries, we won. In the real trial, we obviously we lost.
Then, with the second trial we didn’t use a fancy mock jury or a formal jury consultant in the same way. We did it informally. We hired someone, more just to talk to us and not so much to put on a formal mock jury process. We got some people in a hotel room and just asked them a bunch of questions. We didn’t even do, sort of, the formal mock opening or “clopening” or whatever, and we won that trial. I felt like we got a little bit more out of that experience and maybe it was just as a result of the verdict. I know Matt Morgan loves the more informal focus group type process. I think that’s important. We tested out a lot of theories with the informal process.
ML: I think you said, “Clopening.” Did you really say that?
R. Srey: Yes, I did. The combination between an opening and a closing in the various mocks that we’ve done. We did a clopening statement as opposed to a closing or opening.
ML: Another direction that I was hoping we could touch on in this interview is your personal history, which is extraordinary. You came to the United States, you mentioned before the interview, at the age of 2 in 1980?
R. Srey: That’s right.
ML: Tell our readers about that.
R. Srey: Whenever I have to tell a fun fact about myself in either a presentation or a group setting, my one “fun fact” is that I was born in a chicken coop in Cambodia in 1978. My family survived the Pol Pot regime and we had asylum status. We stayed at a refugee camp from ’79 to summer of 1980 and then went to a different location to prepare to come to the US and arrived in Minnesota in October of 1980.
ML: You’ve been in Minnesota ever since?
R. Srey: And we’ve been in Minnesota ever since. My mom had an uncle who lived here. We ended up living in a house with four other Cambodian families. My family shared a room. My parents were both teachers back in Cambodia but during the entire Pol Pot regime, they had to pretend like they didn’t know anything because the people who were educated were the ones who were being killed. When they came to the US, they knew a little bit of English but obviously it wasn’t their first language. My mom started working in assembly for a company where she ended up working pretty much until she retired. She retired recently. My dad got his mechanic’s license or mechanics degree from Dunwoody Institute right here in Minneapolis. I remembered he worked at Church’s Fried Chicken on Lake Street. He worked at a laundromat and then was doing his mechanics schooling at the same time. They were able to save enough money and buy their first house in 1980 in Bloomington and then they’ve lived in that same house ever since.
ML: I would assume your family has strong feelings about the current political situation and, in particular, the immigration situation?
R. Srey: Yes, it makes me really sad. We were fortunate enough to come over as refugees and our family, just like I’m sure a lot of other families that are refugees, feel like we’ve provided to society, have been good citizens, have done our part in the US and that it would be a very different country if we were not able to come to this country like others aren’t now apparently.
ML: The day of our interview happens to be International Women’s Day, which brings me to questions for you, as a woman, and as a diverse person in our pretty homogenous state and pretty homogenous legal culture. I have two questions. One: have things changed through the time of your practice in terms of how you are treated or how the environment feels to you? Two: do you feel now that you are treated the way you should be in your practice by the people you work with, your adversaries, the courts, and the culture in general.
R. Srey: Wow. First question, one of the things that sticks out the most to me is when I was starting out as a young, female associate, I worked with two partners in our firm, White male, seasoned, and I remembered going to a mediation with them early in my career. I remember the mediator, at least to me, seemed like he had a hard time grasping that I was a lawyer, not there as a paralegal and just sort of … It was just the weirdest thing to me because I didn’t view myself as not worthy of being there. I could just tell and he seemed “old school” to me. He wanted to just talk to the older men and to this day I think that’s probably the reason why I don’t use that mediator ever. People will ask me why. It just gave me a really odd feeling. I didn’t encounter a lot of that but I certainly think that, as a young female you show up at a deposition, you show up in court, people assume you’re not really supposed to be there or you’re like the court reporter dragging a bag in. Things like that happen.
As my career advanced, particularly in this area of the law, I think I’m pretty well known in this particular niche. I’ve done a lot of these cases and have been involved in a lot of different organizations, Bar positions and things like that that I don’t see that as before. It could be a matter of doing it for 14 years or so.
Particularly in this arena, I feel like there are more and more women that I’m litigating against than in previous years. There’s a case right now where the main players in the case, plaintiff’s lawyers, defense lawyers, are all women with these big clients on a big class case. It’s very cool to be in a deposition with five other lawyers and all of them are female. I feel like it’s not the same now in my career.
ML: I have two closing questions. One is: what to you tell a person who says to you, “I just graduated from law school and when I’m grown up I want to be like you”?
R. Srey: You’ve got to work your ass off. I don’t know if our firm is unique or not unique. I’ve only practiced at our firm. I think the people who have made it at our firm, a plaintiff contingency practice, doing class action work with a lot of travel, you’ve got to get your hands dirty and be willing to just really put in the time and work your butt off.
ML: The second question: if you could send a message out to your fellow Minnesota lawyers, would you have anything you would want to say to them?
R. Srey: I would say we are lucky that we work in a such a collegial atmosphere. I think having litigated with other lawyers all around the country, the nicest place to probably work is Tennessee. Whenever I’ve had a case there everybody knows everybody, everyone is buddies, having lunch. Minnesota is not quite like that but at least we’re not like New York and I like the fact that people here on both sides of the fence are running around, involved and call each other up and say hey, can we just talk about the case?
ML: I have one more follow-up on that.
R. Srey: Maybe I’m wrong but it’s the one or couple of cases that I’ve had it seems like it’s pretty collegial compared to other locations.
ML: I don’t disagree with you. My follow-up question: New York always comes up as the place that doesn’t fare so well in terms of collegiality and a friendly bar. I’m wondering about any other areas where you think the practice of law is sharp elbowed and tough besides New York?
Sharp elbowed and tough besides New York? I’m trying to think of who have been the worst defense lawyers, who have just been so unreasonable to work with? No, I can’t…
ML: They’re in a class by themselves then.
R. Srey: I think they may be in a class by themselves and I think it maybe just sort of fresh impressions in my mind. I forget the folks who were more nasty back in the day. I have some cases right now with some New York lawyers who we just sort of internally say, “This is unreal. This seems very unreasonable.”
ML: Thank you, Rachhana, for taking the time to do this interview. I really appreciate it.
R. Srey: You’re welcome.[Previous Minnesota Litigator Profiles: Eric Nilsson, banking/lending litigation, Roshan Rajkumar, products liability defense, Liz Kramer, Arbitration Maven/Author of Arbitration Nation, Bob Lear, Residential Real Estate Appraiser/Expert Witness, Tim Nolan, Lawyer/poet, Laurie Vasicheck, 25 year veteran of the Minneapolis office of the EEOC, Jake Holdreith, an IP litigator for “drug dealers” (better known as pharmaceutical companies), Pam VanderWiel, lawyer for Minnesota municipalities, Bill Dossett, Executive Director of Minnesota’s Nice Ride bike-sharing program, Christina Snow, lender/servicer real estate and foreclosure lawyer, Clayton Halunen, plaintiffs’ employment lawyer, consumer rights lawyer, Stephen L. Smith, straddling a civil and a criminal litigation practice (and later appointed to the Ramsey County District Court bench), Kevin Dunlevy, Minnesota real property authority, Vildan Teske, consumer rights class action litigation and service members class actions, Jim Behrenbrinker, civil rights/excessive force cases, Eric Cooperstein, “ethics maven“, Mike Flom, Gray Plant’s General Counsel, Phil Gainsley, veteran solo civil litigator, John Halpern, collections, Elliot Olsen, foodborne illness litigation, Dave Potter, railroad industry litigator, Katherine Mackinnon, ERISA plaintiff’s lawyer, Kristine Boylan, international IP/Complex Litigation lawyer,Karin Ciano, free-lance “federal sherpa,” Jerry Alcazar, products liability defense.]