TRANSCRIPT

Scott Glovsky:

The future. Welcome to Trial Lawyer Talking. I’m so happy to be talking with Cliff Atkinson. I’ve had Cliff’s book and I should say books because I’m now on the fourth edition of Cliff’s phenomenal book, Beyond Bullet Points and it has been such a wealth of knowledge and wisdom that I’m super, super happy to have Cliff with us here today to share his wisdom and knowledge with you. Cliff is a leading expert in visual storytelling in trial. And he started out, his first case was with Mark Lanier that became a humongous verdict and really was a game changer for a lot of lawyers around the country in how to approach opening statements and how to visually tell stories. And since working with Mark Lanier, Cliff has been working with hundreds of lawyers throughout the country and really, Cliff, thanks so much for being with us.

Cliff Atkinson:

Thank you Scott. Thank you so much for having me. I’m excited to be with you and to share with your audience some of our expiration of story and storytelling in trial.

Scott Glovsky:

Wonderful. Well, let’s get going. Tell us, what is the story

Cliff Atkinson:

That is just a phenomenal question. I mean, so simple yet very profound at the same time. And I think I would probably start the conversation here. That story has become a big thing. And I think probably in our culture at large, we are just in a time of just such an expansion of knowledge and facts and information. And I think with all the proliferation of knowledge, we’re wanting some way to make sense of it. And that’s what I would say it’s a story. A story is a way to make sense out of information, often disconnected information, seeing patterns, seeing structures, seeing something that has some sort of underlying deeper meaning that can connect with.

Cliff Atkinson:

And so there’s so much today in the business world about story, storytelling, how businesses tell story about brands, how brands tell story. And it’s so wonderful that as I’ve been working with attorneys in the last 16 years, that story has always been and continues to be a really central theme, a topic, a tool that people are wanting to learn and to learn more about because I think it’s just something that humanity is always used to communicate and make sense out of things. And I think that today more than ever, it’s really an important topic for us to explore.

Scott Glovsky:

Lawyers get a case and they’ve got a set of facts and thousands of documents often and witnesses that are saying different things. How do you approach developing a story out of all of the disjointed facts and the legal elements and all of the issues and information that we have floating around in the case?

Cliff Atkinson:

Scott, there’s some really interesting lots of different angles on this. I think one of the most intriguing to me is, I don’t know if you remember back in the ’70s, there was this whole thing about when they first started doing brain research, there was a whole thing about left brain, right brain. Left brain was supposed to be analytical, right brain was supposed to be creative. And those became kind of inconstant popular culture in our understanding of the brain. But those were just the initial findings or understandings of what the brain has done in those hemispheres. We definitely have two hemispheres. And since then, the research has continued and the latest understanding we have about these hemispheres is that the right brain… I’m sorry, the left brain is about all the details. It’s about dissecting, about cutting things into pieces. And we could relate this to the evidence. I mean, it’s about the facts. It’s about these individual pieces and the detail.

And what we know about the right brain now is it’s actually more about this big picture rather than the detail. It’s about having this understanding of the whole thing and being able to connect all those dots. So there’s one angle where you could look at this where you could say that the field of the law is really about… It’s about the law, about the written law, about the concepts, about many abstractions and about these specific details and the pieces of evidence. And really when we start to talk about story and the transformation of that information into story, we’re really now moving into this hemisphere about finding that big picture, about being able to tell this in a captivating, engaging way and making an emotional connection.

So I think it’s really important because I think that obviously in law school, nobody is teaching any of these methods or techniques or skills of transforming the small pieces into a coherent whole, into telling a story. So I think that if we start to look at it that way, that this is actually helping to stretch our capacity of our brains and our communication to now take this core set of information and now make it more compelling and interesting and connecting those dots. It’s really almost a personal development exercise for us because we’re getting better at being able to connect the dots and see the big picture. So it’s a big question. How do you take all that detail and turn it into a story? And we’ll look at that. I think that’s going to be a core theme of what we talk about today, how you practically do that.

But I do have to say if there were a couple of basic criteria that that I work with my lawyer clients often, it’s about distilling. A big question I might ask when I’m working with a client in one of our full day sessions, yeah, I might start out looking for what are the three most important things you want the jurors to remember after they’ve heard your opening statement? So that single question, it’s like oh, wait, wait a minute. I’ve got 6 million documents. What do you mean three? That question in itself helps to know, shift and reshift and make you think about things in a different way. And that helps, what I would say is one of the central techniques or tools or ways to work with this. It’s about distillation.

It’s about taking the 6 million documents and now distilling it down to the three most important things you want somebody to remember. All this is critical thinking work and it’s the really hard work that we have to do up front because I think there’s that saying, I think it was at Mark Twain, who said, “I would’ve written you a shorter letter, but I didn’t have enough time.” The gist of it was something like that that it actually is super, super hard work to be able to make something distilled and boil it down to its essence. So that’s really always the upfront and hardest work. When I work with clients, it’s probably 60% of that day that we spent together is a critical thinking process of distilling something to its essence and then laying out the chronological framework for what happened in that story.

Scott Glovsky:

Okay. Well, let’s assume we’ve got the answers to the three most important things that we want the jurors to remember about our case. What’s the next step in the approach to develop a persuasive story?

Cliff Atkinson:

Well, next it’s about finding the chronology, telling the story from beginning to middle and end/ and that then becomes the backbone for the information. Let’s say you’ve got 45 minutes for an opening statement. You’ve got a beginning, the very first few moments that in minutes to capture the jurors, your audience’s attention, to be able to frame what you’re going to talk about, to make them feel connected, to make it easy for them to understand. And then you’ve got the chronology of events. And so ideally as you are working and shaping your ideas and your evidence in this sort of structure from the beginning, middle and end, these classical elements of story need to be there. You’ve got to have a main character. So I most often work with plaintiff’s attorneys. So there’s got to be a bad guy and the bad guy is the defendant.

And so I as I work with clients to tell the story about the bad guy, then every statement that we write, everything that we write has got as the subject of that is the bad guy, the name of the defendant. And then the defendant is a big company that’s hungry for profit and it is under pressure to deliver. And so it cuts corners and then they hurt somebody. Something like that could be an essential structure for a story, but you’ve got to figure out and map your facts to some sort of sensible chronological structure laying out what happened from beginning to middle and end. Where was that point that they knew the rules and they decided to break them so that they could make more money. How did they hurt this person? What did they take from them?

So these are those crucial elements of having a plot, who the main character is, the bad guy in this case, what they did, what happened over the course of time, how they tried to cover up. You’re looking for telling this story in a chronological sequence. And that really is that imprint of the story structure. In order for people to understand and to connect with the story, it’s got to have this story structure. And it’s got to be recognizable and that’s a core thing that I’ve been realizing lately is that when you read a lot of these books about screenwriting in Hollywood, they talk about genre. And what they mean like that by genre is a type of stories. Is it a murder mystery? Is it a comedy? Is it a sci-fi? What’s the genre?

But part of the reason for having genres is that these are types of stories that people recognize and then either jurors or anybody you talk to needs to be able to recognize the type of story that you’re about to tell. So you’re not pulling all this stuff out of nowhere. How you craft and structure the story has to have a preexisting framework. It has to have some sort of familiar structure that the folks you’re talking to can actually understand and follow along with.

Scott Glovsky:

And in cases where lawyers are going up against large corporations that are greedy, for example, what genre would you describe that as?

Cliff Atkinson:

Well? So I would always say… I would say that some of the interesting things about, especially like I mentioned, I normally work with plaintiffs attorneys, civil cases. So that torque type of story that you’re telling is actually technically a tragedy and a tragedy is about a character who might set out doing something with the best of intentions, but then at some critical point, they make a decision that’s actually a bad decision and then they end up hurting somebody. And so I would say that tragedy is the underlying story structure. And so with that, one of the interestings about that is this character went, they consciously knew the right things, they made this crucial decision to do the wrong thing. And now you and the jury, so this is the implicit context for this story that you’re actually the one that can do something about this. You can prevent them from continuing to harm people in a similar way. You can hold them accountable for what they did.

And so with a sort of tragedy structure, it’s so important. And this is the discernment, I think. With Hollywood movies, with fictional movies, the story is almost a complete package. It’s all like a… Some of them are maybe even a morality tale. You watch the story from beginning, middle and end and you see what happens. And at the end you clap or you don’t clap or you just… You’ve had some sort of emotional impact and then you move on with your life, but you don’t actually do anything at the end.

But one of the core distinctions with the story to a jury is that they actually… And one of the big opportunities is to make the jurors really feel the truth of the situation is that they are actually participants in the story. So with this a tragedy story structure, at the end of it, the jurors actually have through their completion and the creation of an ending to the story, they can bring this to justice. They could hold the bad guy accountable. And so this is so important that it is actually more interesting, I would say, than Hollywood movies because you do get to immerse them, have the opportunity to immerse them and let them feel that they are the main characters of the story. So although there’s the bad guy on a loose, they can be the good guys themselves and they can bring the situation to justice for their community.

Scott Glovsky:

So the jurors are actually the heroes as written about by my friend, Carl Bettinger?

Cliff Atkinson:

That’s right. So the jurors, you want to make the jurors the heroes for sure. And that is so important because in… So you really have to make the jurors care about this. They have to be able to first of all… One of the hard things you have to do, especially in some of the most difficult cases or patent cases, but you’ve got to take that to the core facts of the information, the evidence and frame it in a way that’s relatable to the jurors. So in that patent example, maybe this is about stealing, taking something that doesn’t belong to you, but you’ve got to frame it in a way that makes it relatable that the jurors can actually see this happening in their everyday lives. They can understand it. And then they have the ability to be able to do something meaningful, right? So you’ve got to connect it emotionally with the folks you’re talking to. They’ve got to care.

And if they don’t care and if they don’t feel an emotion about this, then you’ve really lost them. So the opportunity is to frame the information and the story in a way that makes them care, makes them involved, makes them feel like they are, like you just said, the hero of the story. And when they’re the hero, then you can’t really get more involved and connected than that.

Scott Glovsky:

How do we do that? In other words, how do we get the jurors to care, to feel that they’re a participant in the story and to really want to be moved, to be connected and emotionally connected and to ultimately take action?

Cliff Atkinson:

And without violating the golden rule, right? Without being explicit about the saying you and speaking directly to them. So I would say my story to share on that was actually this very first case I worked on. So a little bit of my back story. So my background is English journalism. I did work. I was in the military, did work that’s pretty similar to corporate communications. And then I figured out after PowerPoint came out that you could actually tell a story, get to the point and also make it visual at the same time. So I figured out PowerPoint and began writing these articles about how you can… You don’t have to put text on the screen. It could be visual. It could be like a film.

And then Microsoft invited me to write a book about it. And I wrote Beyond Bullet Points that it came out in 2005 and it was written for a business audience. And Mark Lanier was working on his first Vioxx case. He read my book and invited me to come out to help him with that case. And I said I’ve never worked with lawyers, I’ve never been in a courtroom, I don’t even know how to do this. And he said, no, in your book, I see what I would like to do in this case. I want to distill this, I want to make an impact on the jury, I want to make it visual. I want to use PowerPoint to do this. So I flew out, worked with him and then created this… To create this opening statement that he delivered. And I described that in chapter one of the Beyond Bullet Points book.

And in that, so the gist of his opening that he gave, so this is the very first Vioxx trial and it was Carol Ernst who was the plaintiff and she was suing a pharmaceutical company for prescribing Vioxx to her husband who then took it and it was a cause of his heart attack. So if you could picture this, on the big 10 foot screen behind him was just a picture of Bob and Carol out on a date. And then Mark just said, well, let me tell you the story about Bob and Carol. They were both single late in their lives. Hadn’t expected to meet anybody at this point, but Carol’s daughter introduced her to Bob on a blind date and they hit it off. And pretty soon, they fell in love and they got married and they were married together for 11 months. So then on the screen, there’s this picture of the two of them on a date and then suddenly the picture of Bob disappears.

And then there’s a chalk outline. And then Mark says, he clicks and then the next image is the CSI logo. And he says you get to be like CSI detectives. You get to follow the evidence and figure out what killed Bob Ernst. So with that very… There were just very, very simple images at the beginning, but the story is set up in a way. Actually, it sounds very simple, but rhetorically and strategically and tactically below the surface is a lot happening. And one thing is that it’s just introducing this story with just the backdrop of a big picture of this couple. Suddenly the background disappears and there’s a chalk outline, which is now rhetorically shifting the case from a product liability case to a different kind of case that has a chalk outline around a body.

And then now click going to the next slide with the CSI logo, now you get to be like CSI detectives. So this has reframed this case. Now it’s a more like a murder mystery, just like a CSI show, which is framing that the jurors already understand and get that. And now they get to be detectives. So that would be an example those. This was just the very first minute, two minutes of this opening, but already that’s one practical example of how it is that you can draw a jury, your audience into the story and make them feel really involved. So that particular theming, which by the way, came from jury questionnaires when we’d asked them, well, what’s one of your favorite TV shows? Well, a lot of people put CSI. So we were just taking from those questionnaires and from the jury themselves, a familiar framing. This is a framing that’s already in popular culture.

The genre of a murder mystery already in a crime scene investigation is already imprinted, already exists. So that’s, again, what I was referring to earlier, having some sort of framing and a genre that the audience already understands. And then now by connecting those two, now the jury gets to be involved. They get to feel like they get to be the detective. So the rest of the opening, the rest of the trial, then they are empowered to be able to go forward and look at all the evidence and hear both sides of the story. So that’s just a practical example, but other ways. So that was a very front loaded in terms of we made it more explicit, but that would be just one very practical way that you can do that.

Scott Glovsky:

Yeah. What a great, great example. Can you think of any other examples of ways that you’ve integrated story to make the jurors feel connected, involved, part of it?

Cliff Atkinson:

Yeah. So I’d say another, recently on a trucking case. So the technique here was to have a picture. And this was working with photographs that had already been entered as evidence. So this was a photograph of a very busy road, like a highway that had big trucks going both ways. And so the beginning of the story was just this picture and the intent behind it as the lawyer is beginning to tell the story is to bring the jurors into being on the road and driving. And all of us have had these big 18 wheelers just passing by us at 70 miles an hour. There’s this feeling of stress and of danger of having these big trucks around. And so with this as the backdrop, it’s about saying it could be… There are many ways to verbally, to tell this story, but one might be the big picture, big trucks could be January 2013. Sue and Bob and their three kids were in their truck going to visit their grandmother for one of the kids’ birthdays.

They assume that everybody on the road was driving safely. We all count on the laws and for companies to be able to follow the rules and be safe for everybody on the road. In a split second, the 18 Wheeler you see on your left cross the median hit them head on and instantly kill the entire family. They never got to see the grandma. So with that, it’s just implicitly kind of painting a picture, having like… All of us have been on these roads and seen the big trucks coming in the other direction. The idea behind it is just to be able to bring in the audience, make them feel like this is something that they’ve experienced or that, that could happen at any point.

And so at the end of this story, to loop it back around, the company had cut a lot of corners and put unsafe drivers on the road. And by the end of it, to loop it all around, the jurors felt empowered that when they held this company accountable for what they did, the roads would then be safe for themselves, for others, for anybody else that’s driving. So the general gestalt of it is to tell a story, paint a picture that the jurors can relate to and then connecting all of those dots to the facts and the specifics of your case.

Scott Glovsky:

Let’s talk about visual storytelling. I know you are the expert in visual storytelling. First, can you share with us what that means?

Cliff Atkinson:

Well, so let me put it this way. I would say that a story is a story. And as I mentioned with this day long consulting session I do, 60% is just on the structure of the story, just on the words. How are we going to… What’s the theme? How are we going to tell the story? What’s the chronology? What’s the evidence that’s going to back up what we’re saying before we get into the slides. So by the end of that half a day, 60% of the day, if the lawyer just stood up and told that story verbally without visuals, it would be a clear, concise, easy to understand, strong theme, big anchor points to grab onto with just words alone. So I would at a fundamental level, just say that a story’s got to stand on its own with just words.

And once you’ve got those words in place, you’ve got a solid theme, you’ve painted the word pictures, then when you add visuals to continue to magnify that story, you now take things into the next stratum, the next dimension because we live in such a visual culture today. There’s a reason why now all of us can pick up a phone and go through Instagram, look at pictures. Our eyesight is just such a predominant, such a huge way that we perceive information through visuals. So there’s so much research about how powerful visuals can be, but just looking at our phone, it’s just we’ve become such a visual culture at such an accelerated rate that once you’ve got the verbal structure in place, visuals are going to make it that much more powerful.

So in that Vioxx case that I mentioned, so Mark’s team interviewed the jurors six months later, they still remembered the opening statement. They still remembered visuals and themes from the opening statement. So visuals are going to help make things sticky. Visuals can help communicate information. They say picture is worth 1,000 words, meaning that it can communicate instantly what many words would take a lot longer to do. So we can accelerate communication. It can be used… Visuals can be used just an explicit way saying here’s a truck and then here’s a picture of the truck, but it could be used in a way where you just put up a picture of a truck that’s clearly barreling down recklessly at 90 miles an hour and that without even saying anything about the truck speeding, a picture can get across that this is a dangerous vehicle going down the road.

So it can not just communicate explicit information, but also can get across a lot more information than even what you might say verbally. So it’s going to accelerate communication, it’s going to make your ideas stickier. It’s going to communicate information in often a more efficient way than just words alone. But I would always say that there has got to be the verbal foundation and then the visuals are now going to take it to the next dimension.

Scott Glovsky:

I know you have a great section in your book about using storyboards to develop the story, but what would you say is the process from once you have your story to approaching and developing your visual story?

Cliff Atkinson:

So if you’ve never well worked in PowerPoint, there’s a view in PowerPoint. At the ribbon at the top, it says View and then you pick slides sorter. And then from this perspective, usually you might, if you worked in PowerPoint, you might just work on a single slide. When you go to view slides sorter, you see all the slides together at once. So when you first open a brand new PowerPoint with nothing in it, you can take and ideally this would just be a slide with a white background. You just duplicate that 40 times and look at slides order and you just see what looks like just 40 blank index cards, 40 blank screens, 40 blank frames of a movie. And that is, I would say, the number one place to start. When you look at a blank, I call that a storyboard, but just 40 blank slides in a row, then you can look at the upper left corner and say what’s, if as I have my story in place, what’s the very first thing I’m going to show and say?

And then the lower right, you’re going to say what’s the very last thing I’m going to show and say. And then what are the three most important things I’m going to show and say in between? So that, by beginning to look at it from the big visual picture, then you can start planning out from the first thing you show to the last thing you show and everything in between in a visual way. And you can start to plan, is this going to document, a photograph? Is this going to be just a blank screen? There at that point as you’re looking at the big picture, you can start to plan out the visuals beginning, middle to end.

Scott Glovsky:

And how do you figure out what visuals to use?

Cliff Atkinson:

Well, the bulk of the visuals you use are going to be the evidence to you’ve got. So this will be an email, then a zoom on a part of that email. This will be a still from a video deposition where somebody is speaking and then you do a pull quote over to the right. Yes, we knew the safety rules, but we did not follow them, as an example. So it’s going to be documents, it’s going to be videos, video clips, any illustrations, 3D animations that are showing a brain injury, for example, showing the impact, showing what happened to the brain, showing medical records, showing anything else. So family photos of before and after, what they looked like before, what they looked like after. So the bulk of the visuals that you have should be… Probably 70% would be the actual evidence and showing the documents, emails, video clips, illustrations as well.

In addition to that, if you do have some thematic elements, then you might use a very simple image to try to convey that. So for example it’s a big theme in many of these cases about money that a company was pursuing money. And so some ways to illustrate that money might be let’s say they’ve got an annual report and their revenues that year were $3.6 billion and so you do a zoom of the $3.6 billion. Could be that you just put the number $3.6 and then billion. Just that text right there could operate as a graphic. Or if you’re able to use it, it could be a big stack, big mound of $100 bills sitting on a slide. If you would be able to do that with the judge you’re working with and that jurisdiction. Some folks can do that, some folks cannot.

So with that, the bulk of your graphics and your visuals will be the evidence and zooming and putting that sort of information as visuals. And then it might be a combination of creating some custom animations or illustrations. It could be some stock, I would say, limited stock photography. Problem comes up with stock photos and that everybody’s using them or they become cheesy. So you’re just wanting something to be something the jurors find relevant and interesting. But other sources of visuals could be your own phone. If you were able to go to the crash side or if you could do go take a picture of a car or a truck or any damage that happened, you’re wanting to use as much from the actual case. That’s much photographs as much of the actual documents as you can because that’s going to be the core of your visual credibility.

So you’re wanting this to be the actual evidence and it’s important that that’s the bulk of it because there may be a tendency to just use clip art or just to do cute and funny things that I might have found this cute clip art from the internet. Having too much of that, then it diminishes that visual credibility. And there’s not really the concrete backup for that. So you want to as much visual evidence as you can to use. And I’m not saying that it has to be sitting on a PowerPoint slide. I do want to emphasize that if you’ve got a document, it may be that at some point in the presentation, then you switch your screen from your PowerPoint over to your Elmo or your IPEVO and you show the actual document that you have sitting on a table and you take out a highlighter or you underline it and then you switch back to your presentation.

So when we’re looking at visuals, it’s not just PowerPoint, but it might be showing on the screen your document projector. It could be using a physical prop. You could have a red flag sitting up. There are many, many different kinds of visuals to that you could use. And it’s not just limited to PowerPoint. There’s lots of opportunity to mix it up and it’s really important that you do do that. It’s important to mix up the media to really take a approach here you’re wanting to make this interesting and varied and to be switching from the PowerPoint to the IPEVO and back to a board, you’re wanting to connect the story with the visuals, but have a lot of visual variety in the way you present your ideas.

Scott Glovsky:

Let’s talk a little bit about the first three minutes of an opening statement because I know you do a lot of work in that area and that would help us also I think understand a lot of the larger issues that we’re talking about.

Cliff Atkinson:

So I think a great way to explore this, I just got a subscription to the Courtroom View Network that does recordings of opening statements or trials. And that’s a great resource. If you don’t have a subscription there, I’m not selling it. I don’t have any stake in that, but I just think it’s great to be able to go in and watch people give opening statements and closings and watch what they do in between. And so I think that I actually is a really interesting thing to do just from my perspective. My interest is in just looking at the first three minutes of opening statements and just seeing what people are saying. And it’s so interesting because I think that we can generally agree with what psychologists and learning experts, people in film and television. Oh, there’s actually a great interview if you’ve got that Masterclass account. If you have heard of Masterclass, it’s a learning platform where different people, experts teach various topics.

And one of the classes is by Ken Burns, the guy who’s the big documentary maker and he has one of his classes about the very first things you say when you open up a story. And I think across all of those different types of learnings and understandings about the beginnings of stories, there’s a general agreement that at the very beginning, you’ve got to get a lot done. You’ve got to make an impact, most often by having a hook at the beginning, something that’s intriguing and interesting. Just think of the beginning of just about every television show where you start watching it and something interesting is happening. That’s you might not understand completely, everybody who’s there, what’s happening, but it’s something really interesting and intriguing that’s grabbing you in.

So there’s a general agreement I think, is that with an audience, especially on television where, streaming services, there’s so much opportunity to go do somewhere else to click somewhere else. So there’s got to be some… You’ve got to grab people’s attention and hook them and pull them in. So I think that that’s a general principle to have a hook, to draw them in. And that also, at this very beginning point. So it is so important in the first three minutes to be able to capture your audience’s attention, to hook them in and to draw their interest forward to help them feel an emotion about what you’re talking about, to lay out a framework where you’re going to take them, to make them feel relaxed, to make them feel engaged, to make them feel like they care about what’s happening.

It’s so important especially these days with so much media out there. People could quickly start watching something, they’re not interested and they move on to something else. So some underlying principles that folks who study this generally apply is that you’ve got to hook somebody, you’ve got to grab their attention and to make them care about what you’re talking about out, to relate it to something they’re interested in. So I think across many, many different professions, folks who study this, this would be educational psychologists, this would be people who study the psychology of persuasion and influence, that the general principles are about that. About the first thing you say is going to be super important. The primacy principle, what you say first is important. But also, especially these days, the need to be able to hook people into the content that you’re talking about to make them feel like they’re engaged, interested and to draw their attention and have them lean forward.

So doing that would be all these elements. You’ve got to frame what you’re talking about, to tell a story, make it interesting and that you really do have this narrow window of opportunity because people will zone out very quickly. So, so important. You could write it in entire book just about the first three minutes, but I would say that it’s just super important that the first things you say have the greatest impact. And it’s really important because I think that often especially in many of the openings I’ve watched or been a party to, is that very often the very first things could be full of fluff and something that’s not really important where the opportunity really is to do the hook to grab somebody’s attention.

And that’s why I would say, so we’ve talked about story a lot and that’s the theme of what we’re talking about and about your podcast, but that’s actually a wonderful way to begin an opening is actually just jump right into a story. You could do that by just saying August 15th, 2019, John was headed in his car to go see blah, blah, blah. So that with that painting of the story and just saying the date, somebody’s going somewhere, then boom, something happened. How did that happen? Well, let’s back up and we’ll tell the story. So that’s a concept or the idea of front loading that you very quickly get to the emotional heart of it. And this is the technique in television shows where you turn on the TV and something at the beginning of the episode, something is happening, something very dramatic. You don’t know who everybody is, but then the show is going to back up and unpack that for you and guide you through the process.

So what you say at the very beginning is the most crucial and important things that you’re going to say because that’s really working with this very small window of opportunity to grab the attention of your jurors, your audience and to make them care about this so they’re going to hang on with you through the rest of the story.

Scott Glovsky:

Wow. Well, cliff, this is amazing. Your insight is really fantastic. And I firmly believe that every trial lawyer should have your book, Beyond Bullet Points on their desk. In a way, PowerPoint is simply an outlining program and it’s sort of a blank slate on which a lot of lawyers, myself included, in the past, have just sort of used as a crutch to sort of make a list. And what I think is so powerful about your book is not only do you really have a step by step guide of how to approach story, develop story, tell story, show story. It’s really just a tremendous resource that trial lawyers should look at every case through. And I really appreciate you taking the time to chat with us today and I’m looking forward to learning from you more. And I hope one day you’ll come back and hopefully soon share with us some more of your insight.

Cliff Atkinson:

Absolutely. Well, thank you so much for having me and yeah, I feel that we’re just opening the first chapter of a book about stories. So definitely I would love to come back and chat with you more about a lot of this stuff, but thank you so much for having me, Scott. I appreciate it.

Scott Glovsky:

Oh, thank you.

 

The post Trial Lawyer Talk, Episode 67, with Cliff Atkinson appeared first on Law Offices of Scott Glovsky.

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky, and I’m your host for this podcast where we speak with some of the best lawyers in the country. Today, we’re very lucky we have Jim Leach. Jim is a wonderful lawyer from South Dakota who really has walked the walk and talked the talk. He’s fought for the rights of Native Americans for years, decades. He’s fought for the right of the downtrodden, the poor, the abused, and he really is an inspiration for all of us. He practices out of South Dakota, but his cases have national impact and are really, really involve lessons for all of us and a lot of insight. So let’s get started.

I’m very happy to be talking with Jim Leach, who is such a wonderful guy that’s been part of the foundation for Trial Lawyers College, and truly a lawyer that represents what I think we all aspire to, who’s fighting to make people’s lives better every day, and has devoted his career to doing this. Jim moved to South Dakota right after graduating from law school in 1975 to work as a volunteer lawyer for the Wounded Knee Defense Committee, a pro bono organization that defended Native Americans that were charged with serious federal crimes after they occupied the village of Wounded Knee for 71 days in their search for a better life. Over the years, he’s done many different types of cases and legal work, including environmental and treaty cases on behalf of Native Americans, and most recently, he’s one several lawsuits on behalf of prisoners. He’s had three successive laws enacted by the state of South Dakota that restricted election rights to be held unconstitutional. It’s really my pleasure to be talking with Jim Leach today. Jim, thank you so much for being with us.

Jim Leach:

Well, thank you for inviting me, Scott, and I hope I’m worthy of that very kind introduction.

Scott Glovsky:

Yeah, well, you are. Jim, can you share with us a story of a case that had a profound impact on you?

Jim Leach:

Yes. The one most recently that comes to mind is a case that successfully challenged the practice of small police departments in South Dakota of forcibly catheterizing drug suspects when needed to try to get evidence of drug use.

Scott Glovsky:

Can you share with us the story from your client’s perspective?

Jim Leach:

Right, I-

Scott Glovsky:

Can you reverse roles with your client?

Jim Leach:

Well, yes. I had six clients in the same case, all bringing the same claims, each arising from a completely separate factual circumstance. But the one client who I think was actually the most important client in the case, because her treatment said the most to the judge about the reality of this, was a woman named Gina Alvarez. I can take on the role of Gina and speak as Gina if that would be helpful.

Scott Glovsky:

Yes, please reverse roles with Gina.

Jim Leach:

All right. Well, I live outside the small town of Winner, South Dakota, and it’s hostile to everyone except well off white people. I know that. But I was with my boyfriend, and we were drinking, and I was driving home, and apparently I failed to dim my headlights at night when I went past this oncoming state trooper. So he turned around and pulled me over, and arrested me for a DUI. But that’s just the beginning of the story, that’s not the end.

Scott Glovsky:

What happened next?

Jim Leach:

Well, I basically started to freak out because I have a problem being in closed spaces, and he put me in the back of his patrol vehicle, and I just … I hadn’t been using any drugs except marijuana, and I just started to freak out. What I’m going to tell you now is not a secret because it’s been filed, and it was eventually filed in the court case in my deposition. But I have a history of really a lot of abuse, of every kind of abuse, in my family of origin. What happened, and how this played into what happened, is that this trooper thought that I was under the influence of drugs, and he took me to a local hospital, and as … I was freaking out. I was yelling about my having been abused, and I was yelling at my father, and my father wasn’t even there.

Jim Leach:

As I did that, a nurse stripped off my pants and my underpants, and a male patrol officer actually grabbed one of my legs and held it open, and the nurse grabbed the other leg, and another nurse stuck a catheter into my urethra, and up my urethra into my bladder, and I just was freaking out. This is so hard because of my prior experiences in life. They drained the urine out, and finally took the catheter out, and they had their urine.

Scott Glovsky:

Gina, if you could put that feeling in a sound, what you’re feeling at this moment when you’re being attacked-

Jim Leach:

As Gina, I don’t think I want to do that to your listeners.

Scott Glovsky:

You must have been absolutely terrified.

Jim Leach:

I was terrified, I was out of my mind, basically.

Scott Glovsky:

A lot of pain.

Jim Leach:

Yeah, there was pain, but it was just … I was reliving things that happened to me long ago.

Scott Glovsky:

A lot of trauma.

Jim Leach:

Yep.

Scott Glovsky:

You must have felt powerless.

Jim Leach:

Beyond powerless. I was and am a working person. I had a small, little restaurant that I was running and keeping open. I’ve worked my whole life. I just … trying to get by. And to have police do this to me, it was one of the most humiliating things that’s ever occurred to me in my life.

Scott Glovsky:

Gina, what else do we need to know?

Jim Leach:

I had some physical problems. I had a urinary infection that I had to be treated for. This experience affected my relations with my boyfriend a lot because I just couldn’t be close to anyone and couldn’t be close in the same way that we had been before. I had flashbacks about this. It was all … There was nothing that was ever going to be done. I plead guilty to DUI, and then about a year later, out of the blue, I heard from this lawyer.

Scott Glovsky:

Okay.

Jim Leach:

That’s when the case started.

Scott Glovsky:

Okay. Then, Gina, let me have you reverse back with Jim.

Jim Leach:

Okay, I’m back. Jim’s back.

Scott Glovsky:

How are you feeling, Jim?

Jim Leach:

Okay. Kind of emotional.

Scott Glovsky:

Now, Jim, we’re going to hear your story that … although we’ve heard, obviously, part of it. How do you get involved in this case?

Jim Leach:

Well, I think there’s two stories to that. There’s the deep story, and then there’s the less deep story. I think I can tell them both really shortly. The deep story is that I’ve always wanted to work for people who are social outcasts, and what are sometimes called isolates in society. I think that’s because I grew up extremely emotionally isolated, and it took me a long time to overcome that. But the more direct story is that I became aware of this practice, that it was going on in South Dakota at all, when a newspaper article appeared about a man this had happened to in central South Dakota. I live in Rapid City, which is … It’s about 70,000 people, which is the second largest city in South Dakota. It had never happened here, but in some small towns in South Dakota, it did happen, and I later learned it had been going on for at least 20 years. It had probably happened to hundreds of people. But all that knowledge came later.

At first, I just learned about this one man. I read this newspaper article and I thought, “My God, that’s shocking. How can anything like that go on in the 21st century, let alone the 20th? This is horrible.” And I just felt I had to do something. I said I don’t know where this is going, but I don’t think I can respect myself unless I try to do something about this. So, I used that ethical rule that I don’t think a lot of lawyers know about, which is Model Rule of Professional Conduct 7.3B, B as in baker. It’s a rule that’s been adopted pretty much everywhere across the country, and it allows lawyers in cases that are not seeking monetary gain for the lawyer to make direct solicitation of a client by directly contacting the client. In other words, I think we all know that if someone had a motor vehicle collision, or something bad happen to them, as a lawyer, we’re prohibited from direct in person solicitation. But, in a case where the lawyer is not seeking financial gain, rule 7.3B allows it.

I always knew that if I did these cases, they’d be pro bono cases. The only way I’d ever get paid, not from the clients, but if I won the case, and if I could surmount the other obstacles toward a fee award, I could get paid by the defendants. In those circumstances, I just … I contacted the person in the newspaper article and talked to him, and he definitely was interested in filing a lawsuit. Then it went from there, and through investigation, and then later through discovery, I found my other five clients, including Gina Alvarez.

Scott Glovsky:

Tell us about your journey in the case.

Jim Leach:

The short story, the short version is that I found out the ACLU had also been aware of the person whose description was in the newspaper, whose story was in the newspaper, and they had not filed suit, so I wanted to tap into their expertise. I met with the ACLU lawyer, and we got along really well, and she was really happy to have me involved. We agreed that I would be lead counsel, and they’d be available for backup. So, I was lead counsel all the way through, but I was always able to submit my draft briefs or my ideas about the case to her and another lawyer in her office. They just gave me great feedback because people who have done civil rights law know it’s very, very challenging and complex area. Having their expertise was really helpful.

So, as the case proceeded, I had 10 different defendants. I had four defense lawyers. Fortunately, they were all my kind of defense lawyers, which means honest and easy to work with, no BS. I took 31 depositions. The defense lawyers took six depositions, just of the six plaintiffs. We both moved for summary judgment. I moved for summary judgment on liability, and they moved for summary judgment on the whole case. Both sides filed literally hundreds of pages of briefs and exhibits. I think I counted once and I filed 249 pages of briefs on the summary judgment motions because I had to both make my case and show why their arguments should not be adopted by the court.

Fortunately, the judge saw it my way. The judge held that forcible catheterization of drug suspects to attempt to obtain evidence of drug use so that those suspects could be charged with crimes was a violation of the Fourth Amendment. As I read his decision, he talked … The one time that I read passion in his decision, the most passion, was when he wrote about what had happened to Gina Alvarez. So, he got that, and I was glad I had been able to tell her story in the case in a way that, even though it was all on paper, in a way that came through to the judge.

Scott Glovsky:

What was the impact of your case in South Dakota?

Jim Leach:

Well, it actually had an immediate impact. I found out later that as soon as I filed the case, all the defense lawyers told their clients not to do this again until the case was resolved, and only if it was resolved in their favor. I think that reflects that these defense lawyers were smart enough to realize that they might lose this case, and they didn’t want to create anymore liability for their clients unless they could win this case. And so, while they defended it all the way through, they knew this was going to be a case they might not win. So, just filing the case immediately stopped this, which made me feel fantastic.

Then the case got quite a bit of attention and publicity. The net result of the judge’s decision is that it ended forcible catheterization in South Dakota. This practice, which, as I mentioned, had gone on for at least 20 years. That’s as far back as I could track it. I couldn’t sue for all those … on behalf of all those people because the three year statute of limitations was passed. But it had been going on just about … well, for that long, and it had never, ever been challenged, which I found … like, by a lawyer. And all these people had court appointed lawyers because they were all criminal suspects. I found that really sad, and baffling, and a reflection of the fact that sometimes a lot of lawyers just either don’t see things, or maybe don’t care about them, or don’t have an idea that they can do anything, which, if they had just contacted a good civil rights lawyer, something could have been done about this a long time ago.

There’s one other part of the case that was important that I want to mention. Out of the six people who were catheterized, who had claims within the statute of limitations, on whose behalf I could sue, the police had videotaped three of them. Gina Alvarez was not one they videotaped, but they videotaped three others. I got these videotapes in discovery and I watched them, and they were really horrible because they really showed how these people screamed, and how much pain they were in as this was being done with them. I was so lucky the police made those videotapes, because without them, it would just have been a swearing contest between the police and my clients, and I could already hear in my head what the police would say. They’d say, “Well yeah, he complained, but it didn’t really seem to bother him,” or, “He said it hurt, but I couldn’t see where it was really hurting him.”

These tapes were just awful. My legal assistant, who’s highly experienced in many cases, she watched one of them once and she refused to ever watch it again, and she refused to watch the other two because it was just traumatic for her to watch it. So, I always knew those … or I always thought those videotapes would help me a lot. When I finally read the judge’s decision, he really talked about those videotapes showed, and it confirmed my belief that those would be really, really helpful evidence.

Scott Glovsky:

What was your feeling when you read the decision?

Jim Leach:

Well, I was thrilled. I felt that I had fulfilled my moral duty to these people, and that I had fulfilled my moral duty as a human being. I was aware that the defense had the option to appeal to the Eighth Circuit Court of Appeals, which is not typically a real friendly court toward civil plaintiffs, or to drug users, or to criminal defendants. But the defense chose not to. They were interested in settling the financial parts of the case, and not interested in appealing. And they did. They settled and they paid the people this had happened to a significant amount of money, not a huge amount of money.

But from the beginning, every time I visited … When I first visited with each client, I said this case is not going to be about getting a lot of money because if we try it, we’re going to try it in this very small town in the center of South Dakota. It’s extremely conservative. I don’t think I can get you a lot of money from this jury, from a jury there. But what we can do is we … if we’re successful, we can stop this in South Dakota, and we can, perhaps if we’re lucky, get a really good written decision that can be used in other parts of the country where this has happened as authority, as precedent, to state that this practice is unconstitutional. That’s how it worked out in the end.

Scott Glovsky:

That’s such amazing and meaningful work that you’re doing. Can you share with us briefly, so that all of us can get a sense of the depth of the great work that you are doing and have done? I know you worked on a case under the 1868 Fort Laramie Treaty.

Jim Leach:

That’s right. Would you like to hear a little about that?

Scott Glovsky:

Please.

Jim Leach:

Well, here’s the short version. In 1867 and 1868, the federal government wanted to make peace with a number of Indian tribes, nine Indian tribes altogether, and one of those tribes was the Lakota Sioux tribe. Sioux became the American word for the Lakota people, and they’re synonymous now. But the 1868 Fort Laramie Treaty involved the United States and the Lakota. These other tribes all had treaties with the same language, and one thing the treaty said is that if a bad man among the whites shall commit any wrong against a person or property of the Indians, the United States will cause the offender to be punished, and will compensate the injured party, namely the injured Indian party.

And so, that treaty was sitting there, and in 1970, a lawyer who you may have heard of named Jerry Spence brought a case to enforce that against a … or on behalf of an Indian client who had been shot dead by an Indian law enforcement officer. A jury was able to get the principle established that liability could exist under that treaty provision, although he lost the case itself on the facts in a judge trial. That was back in 1970.

Well, over the years after 1970, there have been just a few cases in which lawyers had brought claims against government employees who had committed alleged wrongs against Native Americans on reservations. But when I looked at the case, I … or when I looked at the treaty provision, it doesn’t say anything about it being limited to government employees. It says if bad man among the whites, so it could be any bad man among the whites. Well, there was a case where a white man got drunk off the reservation, drove onto the reservation, and ran down two Native Americans, killing them both. He was eventually convicted of vehicular homicide in federal court. But of course, he was judgment proof.

So, a lawyer I share office space with brought a case in the Court of Federal Claims where these claims have to be brought. Unfortunately, the Court of Federal Claims ruled that the treaty provision wasn’t that broad, and it applied only to defendants who were government employees. So, the fellow who shares office space with me brought the case in to me, and I’ve done a lot of appeals, and he asked me to look at it, and asked me if I’d do the appeal. I looked at it, and I got excited about the case, partly because if we won, we’d establish this principal in a treaty that had existed since 1868, and that in the approximately 150 years since then had never been applied in this way. It would give Native Americans, not just on the Pine Ridge Reservation where the Lakota people live, among other reservations, but it would give eight other tribes’ members the same protection under their treaty.

I took the appeal and the appeal is to the Court of Federal Appeals in Washington, D.C., and won. They agreed with me. They said yeah, that’s what the treaty says, and they rejected the government’s claims that it should be viewed as obsolete or unenforceable for having not been enforced for so long. One of the great things about the case legally is that these cases can only be brought in the Court of Federal Claims, and then only appealed to the Court of Federal Appeals, which means there can never be a conflicting decision from any other circuit. So there could never be a circuit split. This can be extremely difficult for the government ever to get the case … one of those cases, to the U.S. Supreme Court, and the government chose not to seek certiorari in my case.

So, that right exists now under that treaty, and it was … I’m glad it exists, and I’m also glad that I was able to help enforce a treaty right that had been unenforced for so long because, of course, one of the underlying themes in all relations between Native Americans and the U.S. government is to what extent will treaty rights be enforced or ignored.

Scott Glovsky:

Well, I know you’ve done other amazing cases, including preserving Bear Butte, a very important and historical place for Native Americans, and an important place in Native American history, and an important place where Native Americans practice or pray. You’ve also done a lot of work related to the Vaccine Act, and are now working on expanding Medicaid in South Dakota, and really, just such important work. I want to take you now to talk a little bit about your feeling now that you have become, again, involved with Trial Lawyers College, and just … We were lucky enough to spend a week together working and growing last week. Tell us or share with us where you are on your journey right now.

Jim Leach:

My journey with Trial Lawyers College, or as a person, or a lawyer, or-

Scott Glovsky:

Whatever resonates the most.

Jim Leach:

Okay. Well, I’m 69, and I’m fortunately I’m in great health. Fortunately, I have a phenomenal family and a phenomenal wife. I’m going to keep on keeping on, for a while, anyway, and see how I feel as I move into my seventies. But, doing this kind of stuff just makes me feel good about myself and good about my ability to contribute to society. I am not a Bible person at all, but there’s a passage in the Bible that I paraphrase and that I really believe. I paraphrase it as, from those to whom much is given, much is asked. I know a tremendous amount was given to me. I was able to have a good education, I was born with some intelligence, and I’ve got the ability to help people who are underserved and often disregarded by the powers that be in our society. That’s just incredibly gratifying to me, and I think it was one of the two luckiest things in my life that I came to western South Dakota and was able to find a place here where I could contribute. The other luckiest thing was meeting my wife.

Scott Glovsky:

Beautiful. Beautiful. Well, Jim, let me close with a brief discussion of emotional connection. You shared with me that before doing the work we did in the past week, that you were at a place where you were not as excited about continuing your practice and contributing as such an experienced psycho dramatist and trial lawyer, and someone who’s been a part of Trial Lawyers College for many, many, many years, do you think there’s some element of the emotional connection that we receive when we communicate and feel safe and comfortable with other people that is involved in your enthusiasm now to continue practicing law, and that has insight onto how we try cases?

Jim Leach:

Well, absolutely. I think that a lot of life, in a lot of life, there’s not much emotional connection, and there are a lot of people who either don’t know how to have emotional connection or are afraid of it, or think it’s dangerous or wrong. But nonetheless, even if it’s never articulated, it’s there. Maybe it’s fear of becoming entangled. Lawyers, of course, when we went to law school, we were all taught to think like a lawyer, which I think doesn’t have anything to do with emotion, it has to do with a highly cognitive set of analytical skills.

Well, if I’m right that in all our relationships in life, emotion plays an important role, not the only role, but an important role, then it makes me rethink, and it has made me rethink how I do everything. It’s made me rethink how I relate to people, and as I talked about the forced catheterization cases, I hope it came through that it made me rethink how I related to the judge, even in my writing, because I think in legal writing, which of course is most of what most of us do in terms of persuasion, it’s absolutely essential to tap into the emotional reality in a way that allows the reader, whoever that reader may be, or whoever those readers may be if you’re writing for a court of appeals, to understand what really went on, and to understand the emotional factors.

Now, I do not mean being … writing only about emotions or being overly emotional, or anything like that, but it’s a matter of finding the story and expressing the story that carries the truth of the case, and so that when the judge goes home at night … This is one way to look at it. When the judge goes home at night and talks to her or his spouse or partner about what happened today, and the judge tells the spouse or partner about the new case that came in today, what are those sentences in which the judge describes the case. If you’ve reached the judge both emotionally and cognitively, they both have to be there, then the way the judge describes the case is going to frame how the judge sees the case, is going to reflect how the judge sees the case.

So, in all my relationships in life, I’m trying to access what’s going on deeper than surface level, because it’s more meaningful. For me, it’s a lot more meaningful. And it allows me to have a better chance of persuading people when I want to persuade them.

Scott Glovsky:

Well, Jim, thank you for your amazing work. You truly are an example of a lawyer that is fighting for other people, fighting to make the world a better place, and fighting against injustice. Thank you on behalf of your clients, thank you on behalf of the lawyers that you’ve taught and teach, and thank you for … personally, for sharing your stories with me. I very much appreciate it.

Jim Leach:

Well, I can’t let you … Thank you, Scott, but I can’t let you go without saying that, again, that I hope I’m worthy of that, and I try to live up to those standards as much as I can. Thank you.

Scott Glovsky:

Thank you.

 

The post Trial Lawyer Talk, Episode 66, with Jim Leach appeared first on Law Offices of Scott Glovsky.

 

Transcript of Episode 65, with Eric Fong

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky. I’m your host for this podcast where we speak with amazing lawyers. Today we’ve got a great, great story from Eric Fong. Eric is a wonderful trial lawyer who practices out of Port Orchard, Washington, but tries cases all over the country. The theme today is about overcoming fear, dealing with obstacles that we face in trials and strategically how to get past those obstacles and move past that fear and get on with telling your client’s story. Eric got a verdict of $91 million a couple of weeks ago in a case that was not easy by any stretch of the imagination. There’s a lot of lessons here, so we’re going to break it into two episodes, but let’s get started with the first episode.

I’m very psyched that we have Eric Fong with us. Eric is a wonderful guy, great lawyer, creative, present, charismatic and an incredibly caring. Eric’s going to share with us again, fortunately, I’m very thankful that he’s here again the story of a case that he just tried a couple of weeks ago. Eric, thanks so much for being with us.

Eric Fong:

Hi Scott. Good morning. Thank you for having me, this is important.

Scott Glovsky:

Can you take us to a scene that can help us understand your story in the case that you just tried?

Eric Fong:

Sure, a scene of the case that helps tell my story and when I hear that, I hear my story. Well, how does it relate to me? That immediately makes me want to talk about the jury because the stories that they hear of course relate to them. But that’s a topic for another day, but it is I think it’s really important to know that everything we do in court we are guests in the jurors homes and we need to treat them with the utmost respect and they of course are the focus of everything that’s going on in that courtroom. That’s something we should talk about later, but for me and my story or the story of this case, this morning I was talking with my fiancé Courtney, and she was there every step of the way and the workup of this case.

We were reminded, I was reminded of how hard trials are because of the… We put so much effort and energy into choreographing our cases and we have this expectation that it’s going to go a certain way because that’s how we plan it and that’s just the way it has to go and if we do all of these things, we’re going to win. Expectations are kind of like resentments waiting to happen. We get stuck on these rigid beliefs and ideas, and we lose the ability to adapt to what’s happening in the moment. Right out of the gate, this trial was not going the way I had hoped or expected it or my expectations were not materializing. The first devastating blow was that the jury selection process is so important to getting these trials off on the right track.

That’s this opportunity for us to sit down and look at these good people and make these human connections and talk about these lofty principles of truth and justice and the law. Of course, when we go into these trials, we have this fear of the group of people that we’re going to meet with. So we come up with all these great questions of how we can ferret that out so that we can get a fair trial. Well, I only had 20 minutes and this was a case that is not jumping out at anyone as, oh, that’s why the law should intervene.

It was a robbery at a store where a customer got hurt. So it’s not like a car crash case where someone’s driving on the phone and they run on someone. It was complicated by business agency law and then some third-party criminal that did the actual damage. That takes some time to develop a talk about and I had 20 minutes and all of that time was consumed talking about you can guess, you can imagine frivolous lawsuits. I don’t get any deeper than that. I was at the end of the 20 minutes, of course I was heartbroken. I was crushed. I was negative.

Scott Glovsky:

Eric let’s go back in a moment. You’re back there, set the scene for us.

Eric Fong:

Well, I’ll take it to the lunch. We walk out of jury selection and we’re at a pizza parlor just down the road. I’m there with my team and I’m just heartbroken. I’m just heartbroken because I have decided in my mind, my thoughts have taken over my feelings and I have decided at this point that we’re done. It’s like I have a group of people that don’t believe in the justice as I see it. I have a group of people that aren’t going to give my client a fair chance and I was moping around. It was hard for me to snap out of that and thank God that we have these breaks in the day or in these moments because you have to snap, you can’t bring your garbage to the dinner table and expect other people to want to hang around with you.

I remember talking to, who was it? I called someone up and I was explaining this sorrow I was in, all these years of putting this case together and all this effort and resources, and look at this jury that I have and how unfair it was, 20 minutes and 20 people to pick from on your veneer. That was 20 people. Out of 20 people we narrowed no for causes. We had our jury and there is a chunk of people on there that scare me. This person said to me, “You know what? You got to forget about that and fall back on your preparation. You got to go-

Scott Glovsky:

Well, let me stop you for one moment there. I want you to be in this moment where you’re in this pizza parlor, and I want you to reverse roles with your fear. What’s going on with you?

Eric Fong:

These are things I can’t control and I’m getting steamrolled and I have no power to control it or stop it. The next logical step or the next emotional step, I don’t know which one of those it is that I’m off a cliff. This whole case has just gone off a cliff.

Scott Glovsky:

And fear, what are your ingredients? Right now you are tearing apart, Eric, but what are the things that are going to go wrong in his life because of what’s happening right now?

Eric Fong:

My words will be empty. No one is going to listen to me. No one is going to give my client a fair chance and I’m going to lose.

Scott Glovsky:

What does that mean for Eric? What does Eric have on the line here?

Eric Fong:

My ego, my wallet, my client’s life. The last three, four years of 100% commitment to winning this case because it’s righteous and it’s important and it matters. All that work for the right reasons. Everything that I did, that I believe was honorable and above board, it didn’t matter. Once again, the bully and the bad guy’s going to win, and it doesn’t matter what you do, because sometimes the ball doesn’t bounce your way and you just get screwed. I just got screwed.

Scott Glovsky:

Do you feel powerless?

Eric Fong:

I did until that phone call.

Scott Glovsky:

So is there anything else we need to know about your fear-

Eric Fong:

No.

Scott Glovsky:

… at this moment? Let’s reverse back, Eric.

Eric Fong:

Yeah, I already feel better. Going back, I didn’t like that, but there’s… Anyways, go ahead, Scott.

Scott Glovsky:

So you felt this fear and then you… How did you deal with it? What happened next?

Eric Fong:

Part of it is the reality that you got to keep going, duh. You got a case to try, pull up your pants and buckle your shoes up, and let’s go, it’s on. Forget about all that other stuff. Who knows? You’re playing mind games with yourself and you got to just stop that and like that person said, you fall back on your preparation. I would say little things to myself to make me feel better that conservative right ring wing jurors. Well, you know what? We know that they can be pushed over the edge to be really great jurors. We know that. So quit judging them and maybe they won’t judge you and just go in and embrace the humanity of this moment and the truth and the confidence that the justice is on your side. I think I moved on pretty quickly like these moments where we have these profound disappointments, you have to be able to… I had to move on because I had to give an opening statement the next day.

Scott Glovsky:

Where do we need to know to go next to understand the story?

Eric Fong:

I would say that night I was consumed with the motions practice. My team and I, the defense, I don’t know if it was intentional or just… I don’t like give them the benefit of the doubt. It just happened this way, but they were throwing the trial schedule off with what I believe to be pretty poorly thought out or frivolous motions, arguments and lots of new disclosures and briefings that was requiring a ton of energy on our part to address. That night, I don’t remember the specific legal issue, but I remember staying up until 3:00 in the morning writing a brief so that we could file it with the court the next morning right away to prevent the defense from doing something, an opening statement that I was anticipating.

Eric Fong:

We were driving from my house to court and we’re going over the Narrows Bridge and I was rehearsing with Ken and Courtney. I was moving for a mistrial that day. I was going to move for a mistrial. I did move for a mistrial and I was rehearsing the points and making the bullet points of why a mistrial was necessary at this point, which was not a fun thing to do. I couldn’t even imagine if it had been granted, but I felt like it had to be done and we get to court and we’re arguing these issues and the court denies the mistrial. I remember the judge looking at me and asking me if I was okay, like, “Mr. Fong, are you all right?”

I don’t know where that was coming from. She asked if I needed a minute because the jury was walking in. We had finished the motion stuff and now we were getting ready to go straight into opening statements. I was exhausted. I was upset. I was uncertain of myself and what was going on. I knew that in a matter of minutes I had to stand up in front of a jury and give an opening statement.

Scott Glovsky:

How did you deal with it?

Eric Fong:

Well, thank God I had prepared it a lot. Like that person said, I fell back on my preparation and confidence and I have had enough trials where I know you’re done if you cannot… Cause the jury, we have to remember that people are bringing with them their experience of what they know and these 14 people, the two alternatives and the 12, two plus 12, 14, they’re walking into this room. They’ve just been sworn in the introductory instructions had been done, and they’re going to sit down and they’re going to be introduced to the facts of the case.

At that very moment I am boiling with kind of this anger at the defense lawyers. I’m dealing with that emotional fallout of the jury selection, not going the way I had hoped or wanted. I knew that if I didn’t push that aside, I didn’t have time to deal with it of course. The jury was right there. I had to push it aside. I had to remember that this jury knows nothing about that. If I interject that negativity or that emotion or that fear, and they can see something in me is not right that’s not a very good impression.

That is our bank when we give a closing argument. Our credibility is our… These feelings and relationships that formed in jury selection and continue to get stronger as the trial goes on. If I didn’t tend to the relationship of my credibility with these people and forget about the drama that had just happened in court, that would be greater than losing the mistrust. That flaw or that catastrophe would be far greater than losing legal arguments. So I put it aside, I grabbed my notes and I slipped into trial mode and I was able to do it.

Scott Glovsky:

I understand there was some difficulties in this time of the day of your opening statement.

Eric Fong:

Yeah. Holy cow. The West Coast was in the grips of a heat wave and not the one that we just had where it was like 110 degrees but it was hot. We were in this makeshift community center courtroom, and the air conditioners were out. The temperature in the courtroom was approaching 85 degrees for consecutive days. This was the first day of this absurd heat. The judge she’s like, “Look, it’s hot and I told the lawyers they could take their coat off.” And you guess how many lawyers, there’s six lawyers lined up, guess how many lawyers took their coat off? One, and that one lawyer took their coat off and rolled their sleeves up and it was me. Because there’s this, I don’t know this idea of a lawyer and putting on this show or this front or looking a certain way and acting a certain way, flies in the face of human connections.

We want to look the part, we want to talk the part. We feel this need to create this image. I have through the work of Jerry Spence, the Trial Lawyers College and the personal journey of just being real. If it’s 85 degrees and it’s hot, and the judges take your coat off, I’d be happy to go into shorts and a t-shirt if she would give me that leash to do that. I wanted to do that to one, be comfortable because that’s what I needed to do physically, but I also wanted to do it to connect with the jury. I’m one of you. We’re all in this together. I’m no different than you, duh. So I was actually glad that it was hot.

The other thing that was going on was I had just gotten over limping from a nasty, nasty knee injury where all of my meniscus in the knee blew out, not the meniscus, well, yes, the meniscus, the cartilage, both ligaments and tore the calf muscle and broke the leg. It was a really bad injury where the orthopedic surgeons were like, “Ooh, this is interesting.” I did that on early March, and this trial started May 27th or something. So I had just gotten over this where my body was letting me walk, where my normal gate could come in and pretty we’re lugging around boxes, you’re up and down. I had not been anything close to being active. All of a sudden I’m in this trial, which is an extremely physically. That’s a surprising thing maybe for folks how physical a trial is, but pretty early on my knee did not like it. Those were the physical things that were going on at the time.

Scott Glovsky:

I understand you were basically with your knee pain, you couldn’t even barely stand. So you were doing your examinations with your legs up on a chair.

Eric Fong:

Well, I don’t know about that. But yes, I ended up resorting to sitting for a big chunk of the trial because if I needed to, I had to.

Scott Glovsky:

We were talking about opening day, by the way, before I distracted you. [crosstalk 00:22:43].

Eric Fong:

In the opening statement I was… The other thing was, is that the space was so restricted that there was this podium that we were told we had to stand behind. I like to roam around. I like to move, I like to use the space appropriately so that I can make stronger connections on the outer reaches of my eyesight, so to speak. When you look at someone, you get a much closer personal feel with the closer you get to them. So I try to use all that space and in this room, you couldn’t do it. We weren’t allowed to do that.

You could not walk around because of COVID, social distancing. We were allowed, thank God when we were talking to remove our mask. So I stood behind the podium. I was up and I delivered the opening statement that I think frankly set the tone for the whole trial and may very well have won it. I moved on pretty quickly from… Every day, got better and better and better. If we started out rough… I do remember when I moved for the mistrial, the defense lawyer said something to the effect of, “Oh, he’s just upset because he’s losing.” We were at the time, I think that might’ve been a fair statement.

Scott Glovsky:

So where do we need to go [inaudible 00:24:37]. You did mention that there was some violations emotions [inaudible 00:24:45].

Eric Fong:

Yes, when we were talking. So the defense lawyers opening state… So there were a lot of unsavory facts that I needed to keep out, or I saw I thought that I wanted to keep out and the court agreed. Prior drug use of… We’re not talking about marijuana we’re talking about like hardcore synthetic junk. There was some criminal history, there was continued drinking and driving. There was my client’s sexuality. There were some issues with CPS and child support and unemployment, horrible facts that on the motions eliminated, I think the judge made the obviously correct rulings and kept it out. I moved for a mistrial twice. This lawyer did not seem to mind violating motions eliminate. Every opportunity he had, he was more than willing to introduce facts that had previously been ruled in admissible.

In the opening statement he had a PowerPoint that had a lot of the stuff I just talked about in it. While he wasn’t coming out and saying it, so if you read the record, you’re not going to see it on his PowerPoint and he would leave it up for crazy amounts of time whatever. I would make the objection and he would just keep steamrolling, leave it up. As if there was no regard for the court’s rulings or for what was going, he did not care. He did not care. I clearly that impression didn’t go over well with the judge or the jury or with me, because it didn’t matter in the end but his witnesses were no better. The next place maybe is that I go through my case, I put on the case, we call the store clerk, the manager. I can’t remember if we talked a little bit about what this case was about.

Scott Glovsky:

Yeah, you gave us a very, very, just brief snippet that involved a convenience store. Why don’t you share, yeah go ahead.

Eric Fong:

Convenience stores that are open 24 hours a day are dangerous. There’s a scientific correlation between robberies. This is a thing, a convenience store robbery is a thing. It’s one of the most widely studied kind of business dangers out there. It’s extensive. We know certain things are going to increase the likelihood of a convenience store being robbed. We know that operators of these businesses have to do certain things to prevent it from happening. So this was a store in a company that could have cared less, and the store was dangerous. The employees were asking for help. There was just this non-stop barrage of criminal activity on the property. That’s kind of the duty and the breach. Then there was how the clerk actually handled the robbery where he escalated it and then asked my client to kind of help.

Anyway, so I put on my case, I have a great expert on liability. The employee and the manager of the store were phenomenal. They’d been deposed. So I knew what their story was. The defense is now calling their witnesses. Their whole theory of the case was just to a character assassination of this poor guy, just tear him down as much as possible as if he’s unworthy as a human for any type of compensation. He’s not worthy of being helped. It’s one of those things where you get the defense medical examination opinions and you the reports and you don’t know if you’re grateful because it’s so far beyond the pale of reasonable or you don’t know if you’re terrified because you know how horrible they make your clients sound.

So client suffered a traumatic brain injury. From that traumatic brain injury came the usual suspects of psychological fallout of depression, anxiety, post traumatic stress disorder, and that he had significant functioning problems and all of those headaches, vision, audio disturbances, all of that stuff paled in comparison, if you can imagine to a grandma’s epilepsy that was poorly controlled that had caused respiratory failure and the defense was, “Oh, he’s not that hurt and if he just took his medications, he’d be fine. And all of the problems he’s currently having he had before.” And why did he have it before? Well, because he’s just this miserable human being that had a horrible life who brought all these things on.

So the neuropsychologist as I’m cross-examining the guy, I asked him this question, it was something to the effect of tell the jury one thing about Mr. Tisdale that you respect and he couldn’t do it, Scott, he couldn’t do it. I sat there in the silence grew, and I’m not going to stop the silence, come on guy. Let’s hear it. There’s got to be something in this human being that you seem as redeemable. The next thing that happened was this disturbing display of, I would describe it as hatred where he starts spouting out all of the things he was instructed not to talk about. His face went ugly. He just started saying, well, this is a person who is a drug addict. This is a person who’s gay. This is a person who just continues to drank and they keep getting arrested.

This is a person whose kids were taken from him by CPS. Of course, we’re supposed to be in control of our emotions. We shouldn’t be overtaken by them and we should let our emotions flow through us and handle things professionally. Isn’t that what jurors expect? We’re professionals. We should behave this way. Well, this was a moment where I wasn’t capable of doing that. I was dismayed after the opening statement. I don’t know, unethical behavior, every chance up until this point. These little pieces of evidence were being interjected into the trial.

Now here we have the neuropsychologist just destroying my client, or so he thought because of character flaws. I had already moved for a mistrial at two times at the point for this exact reason. I’d already moved for a mistrial. Finally, I just flew, I just threw up my arms. I said let’s talk about this. Well, the first question I said, did your lawyer talk to you about motions eliminate and tell you that you’re not supposed to bring this stuff up? Was that ever explained to you? There was an objection that was sustained and [inaudible 00:34:03], let’s just talk about it. Let’s just talk about these things.

I think I went into the CPS allegation because that was the one where I was the strongest. He just made stuff up. I told my clients story of what actually happens. His kids were never taken by CPS. I just asked the leading questions that set that out to try and get a more balanced perspective that this guy is nothing more than a hired Hitman to lie. Obviously the trust that I had developed with the jurors through jury selection and opening statement and in the cross-examinations of previous witnesses clearly established who had the truth on their side and what the motives of these people were.

Scott Glovsky:

I can feel the waves building in your case through your sharing with the jury, the truth contrasted with the lies that the defense case apparently was filled with. Where do we need to next?

Eric Fong:

I think that this is a good time to just talk about credibility and trial and how important our honor is and our behavior is because once you cross the line of honesty or ethical behavior or doing what you say you’re going to do write an opening statement. Once you cross that line, by the time it gets to closing argument, you’re done. The law, as we go through these jury instructions… I’ve done a lot of trials and I’ve read a lot of these jury instructions over and over and over again in all sorts of different jurisdictions and states. I still don’t understand a lot of them, you know what I mean? The way they’re written and the way they talk about the law and human suffering and damages, it doesn’t just jump out at you as like, oh, that makes perfect sense.

So frankly, I believe that by the time you get the closing argument, your interpretation of the law is going to have a huge sway with how the jury interprets it, assuming they believe you. If there’s this huge credibility gap between the two lawyers, the closing argument at that point, really isn’t… The jury is not going to put much weight at that point into how a dishonest or someone they don’t believe how they interpret the law.

I just think that the conduct of the willingness of the defense to push the limits to assassinate a good person’s character really hurt the credibility of the lawyer. That was a strategic choice. For the life of me, I can’t understand how people are so willing to attack other humans. It’s such an ugly trait, but unfortunately in this line of work, we see it all the time from the doctors, from the insurance adjusters. They’re so jaded and how they view claimants that they are simply incapable of turning it on and off. So when the chips are on the line and there’s jurors sitting in judgment of the facts, they don’t even realize how unfiltered their normal behavior is because this is how they treat people. They’re incapable of seeing that the judgment is poor because that is their judgment. That is who they are and that’s not a good place to be.

Scott Glovsky:

Can you take us understand after closing you were convinced that you’d lost, take us there.

Eric Fong:

It gets harder and harder to go there because nothing could have been further from the truth. But we have these doubts that we carry with us through life and I think these doubts are accumulation of our past failures that infiltrate the present. These disappointments of trials of the past, where you won and you hear the verdict and you’re just devastated. So you never know. You never know how these things turn out until the verdict is announced. I did, we were sitting and we had rented this space at the community college to just have as our home base and we were sitting in that room around this table, and there wasn’t a lot of talking going on and we’re just sitting around, this is day two of deliberations.

So we knew that at some point there had to be a question, or we were getting into this point where we’re four or five hours deep into the process. We get a question. We get a call from the court and your heart just stops beating, or it starts racing, whatever. The question had to do with liability and proximate cause. Then of course I did not like the question, because that was the issue in this case is approximate cause and intervening acts of a third person and is a chain broken. It scared the living daylights out of me. The judge says what they often say which you don’t want a side note. I wish that I had been more forceful with the judge to actually address and answer the question in a more forthright way instead of read the instruction, but that’s what they were told and 15 minutes later, they came back with a verdict.

I tricked myself, I convinced that this is bad. It was confirmed in my mind when we’re sitting there at the table and the jurors file in and this is the moment of intense anxiety because it’s happening and you know that the decision has been made and it’s in their hands and they’re going to hand it to the bailiff and give it to the court. Not one jurors they walked into that courtroom looked at me. Having been there before, when that happens, I’ve come to be conditioned do you believe that that’s a death blow? Not one person had a twinkle in their eye, a wrinkle in their face that could only come from a smile behind the mask, not one person looked at me. So I just dropped my head in sorrow that I knew what the judge was going to read.

I was just preparing myself for that. Obviously as the judge worked her way through the verdict, it was just relief. I don’t want to say it was elation. It was gratifying. I was proud of the jurors. I was proud of me. I was proud of my client for… It’s not fun for them to go through this process. I want to jump back Scott, unless there’s something right now you want to say, [crosstalk 00:43:33] I want to jump back to that moment after closing argument before we went to the room that we had rented. When I sat down in the front seat of the car, I wanted to just sob, I fought back this intense grieving of this emotional rush of just wanting to break down and cry.

I don’t know what that was about. I’ve done cases where as soon as it was done, I’m laid out like horribly sick, because you put so much energy and emotional investment and adrenaline goes into it, that when your body you’re finally done, it’s weird. It was intense. I had this impending sense of doom. It’s over and I don’t think he did enough. Then I woke up the next morning and I couldn’t have felt better. This is after closing arguments. We closed it, oh gosh. They have like half a day to deliberate. I think we actually got done in the morning with closings, I think.

So I went to bed that night just second guessing everything I had done, was it enough? Then the next morning when I woke up, I felt really good. I felt like we tried the case perfectly, the closing arguments covered what needed to be covered. It’s in the hands of a good group of people that are going to see this thing through that this defendant finally is going to be held accountable. As you know that’s how it played out.

Scott Glovsky:

Eric what is the… I know there are many, many, many lessons in this case, and you shared with me a little bit about how to motivate a group of people to do something that they would never individually do. Can you share with us how what you’ve learned and how it ties in with your journey?

Eric Fong:

So I am a big believer in the jury trial and you’re going to get a group of people who collectively had experienced everything that this world can present. from the highs to the lowest lows and everything in between. You take 12 people off the streets, there’s nothing that they have not been exposed to in life. Now, having said that, there’s no way that individually their thoughts are aligned and they’re going to see things the same way. So as a trial lawyer who’s asking for justice, you apply the laws to the facts of the case and you’re going to spit out a verdict that as we love to say, and it’s just more true to this day than ever that what that verdict represents is the conscience of the community. It’s the voice. It’s what our future needs to be. It’s what the present is about.

I believe that these ideals of justice are tied to something much bigger and greater than the facts of the case and even the law. I believe that justice exceeds the space that the law provides and within each individual, as different as those experiences are that collectively make up the whole spectrum of life do you know what they all have in common? Every single one of those, every human being on this planet has one thing in common and that is this burning desire, deep inside of them to matter, to make a difference and to be heard and to live a life or choosing and our destiny and that’s pretty profound stuff.

If you think about how important each individual life is now, there are certain people that want to die and they commit suicide. Even that person, there’s something inside of them that is sick and that needs to be replaced or go away, which we all have and in that process, we kind of grow. But the idea of 12 people getting together to do justice to me is a spiritual journey. It’s a spiritual journey that evolves through the process of the trial.

Scott Glovsky:

How was this tide to your personal journey?

Eric Fong:

Now that’s exactly it, Scott. That’s a hard question. In 2001, I was introduced to this concept that you can’t ask other people to do something unless you yourself are willing to do it. Ancillary concept is if you don’t believe in yourself, or you don’t believe what you have to say, well, you know what, it’s pretty much a certainty that other people aren’t going to believe it. So you have to dig down deep within your soul and do the hard work to learn who you are. That’s a scary journey. Of course, I’m talking about the Trial Lawyers College and the work that we both did at Thunderhead Ranch under the brilliance of Jerry Spent. I was like, “Who are you?” who is the authentic you? Not everyone is willing to take that journey. Not everyone is willing to strip down through the layers to do the hard work of exposing your flaws like the sickness inside of you, which by the way we all have.

There’s no one that hasn’t thought of horrible things from homicide to suicide or crazy disgusting thoughts. That’s part of living and the scary part is if you’re not willing to admit it, or you’re not willing to do the hard work to uncover what’s driving your feelings, why do you react to certain people in a certain way? So that process began in 2001, so 20 years ago. Along the way and I was willing, you have to be willing to go down these journeys like an openness and a willingness to just receive other messages in life. As I got further along into the personal work of just like, who am I?

One of the most profound oldest questions on the planet. Well, who am I? What am I doing? Where do I want to go with this life? Intense, deep reflection on these really simple and sound questions but overly complex and reality. The deeper I got into understanding my own flaws and my trauma that was inflicted on me, the more open I came to seeing it in everyone around me and how we individually go through life on this journey or in these moments. So here’s where the next big jump came, Scott. So that was profound. That’s profound work. When you’re willing to open your soul up and uncover and just open up the nasty things about who we are and what was done to us and just deal with it so that we’re not carrying it around.

We’re as sick as our secrets or the things that we can’t talk about control us. Those truisms that hold us back in life, when you’re willing to go to the things that you can’t talk about, that’s life changing stuff. But no matter how much work I did in that department, there was something deeper that was still eating away at me. The next layer above that, they gave me a breakthrough was the 12 steps. My work as an addict, which alcohol and marijuana got the best of me and inflicted severe damage on my personal life, professional life, my physical health and I was on my knees crawling into the AA halls looking for help.

It was the 12 steps that start out with this concept of powerlessness. We’re powerless over alcohol and our life has become unmanageable. When you can grab… By the way, each 12 steps are just basic truths that in and of themselves are just common sense. It’s how they’re strung together that gives you an approach to life that is magnificent. It’s brilliant. But step one I’m powerless over certain things. When you can recognize your powerlessness, you’re actually empowered. Think of the times that you have spent contemplating and obsessing and trying to solve a problem you have that you simply don’t have the power to solve. How much healthier would you be if you could intellectually recognize you have no power over this particular event. So just let it play out and see how it goes and just adjust to it. So that’s step one.

The last step is the spiritual principle of generosity. The gift isn’t complete until you give it away. You 12-steps someone, and that’s being generous and helping other people. Then the 10 steps in between there are just equally magnificent but that was the beginning of a spiritual journey that took me to amazing places working with Brant Secunda, who is a incredibly powerful shaman from the Huichol tribe at Mexico. I did some work with some other spiritual, I don’t know, they just bring so much and you realize that we’re just scratching the surface of our understanding of what it means. Talk you pie this little tiny space we have right here now.

Scott Glovsky:

Wow, Eric, there’s so much wisdom that you share and I’m looking forward to continuing to spend time with you and learn from you and follow your journey and follow my journey. I’m so thankful that you shared your thoughts with us today. There’s got to be a book on this [crosstalk 00:58:04].

Eric Fong:

It’s already been written. Thank you though. There’s so many great self-help books out there.

Scott Glovsky:

Give us in closing, just give us your tips or your advice for becoming whatever we want to become.

Eric Fong:

I think that there’s a lot of uncertainty and there’s a lot of fear that people are carrying right now. I think that these messages are being like, I don’t know, I think of like a laser that shooting toxic stuff into you, these images of negativity, I don’t know if that’s true or not, Scott. I don’t know if that’s right or not, but I think that what I do know with 100% certainty is that we carry an idea of what we should be and it’s not based on what we want to be. It’s not based on who we really are, but rather we carry this idea of what we think we should be based on some external source or pressure. The advice that I would say is, what I just said, that what I did, which was, who am I? Why am I feeling this pressure to be something, what does that say about me? And can I admit that my thoughts are creating a negative emotion and that I need to get on top of this stuff?

I need to just break it down to its most basic kind of level of who am I and what do I want to do with the rest of my life and be true to yourself and be willing to admit that I’m suffering that my life isn’t going the way I thought it should go, that I do have emptiness and pain and sorrow, and be willing to open that up and deal with it. Because what you will find is in that part of you that is hurting is the next level behind that and underneath it is the next level of wisdom and gratitude and meaning. I was talking earlier about someone who has a part of them that needs to die.

Literally that part of you that needs to die will literally cause some people to take their lives. It makes me so sad to even think of that level of suffering. But what happens if you deal with that part of you that needs to die and underneath that you go to just this profound level of understanding, of enrichment in faith and hope. What would happen if that’s what you discovered if you dealt with the scary parts of you? I think that’s where the cutting edge is. I think that’s where people should be living and it never ends. It never ends. I’m grappling with my own failures as a human, as I am talking to you right now. It never ends. But unless you’re willing, and then we’re going back to this idea of this openness and willingness to go there, unless you’re willing to start that it’s entirely possible that the sorrow of when these days come to an end is not that you died, but that you never lived.

Scott Glovsky:

That’s profound. I’m so thankful that you’re sharing this wisdom with me and with us. I’m just so excited to watch your journey and to continue to learn from you and your friend.

Eric Fong:

Scott, we’ve known each other a long time, man. So you as well as anyone know it, and have seen it unfold. Thank you again for doing what you do and inviting me on.

Scott Glovsky:

The pleasure is all mine, buddy.

Eric Fong:

Thanks Scott.

Scott Glovsky:

Thanks again.

The post Trial Lawyer Talk, Episode 65, with Eric Fong appeared first on Law Offices of Scott Glovsky.

About Genie Harrison

Genie Harrison practices law in Los Angeles, CA. Genie Harrison Law Firm represents victims of wrongful termination, sexual harassment, discrimination, retaliation, and other employee rights violations. Ms. Harrison is the President-Elect of CAALA, the Consumer Attorneys Association of Los Angeles. CAALA is the country’s largest local association of plaintiffs’ trial attorneys.

About this Case

Ms. Harrison’s client Tennie was a fire fighter at Fire Station No. 5 in Weschester, CA. Tennie’s captains and coworkers fed him dog food in a racially motivated prank. They knew they would get away with the prank because the fire department did not have a universal process for workplace investigations. After the prank, Tennie didn’t feel safe and went out on leave.

When Tennie returned to work, he faced a potentially life-threatening act of discrimination. Just prior to a “flash over” training exercise, someone tampered with his oxygen tank and mask. Tennie lost trust that he would be safe and taken care of by his fire fighting peers. “Trust is so integral and key to being able to function as a fire fighter. Once that trust was completely and irretrievable broken, Tennie could no longer do the job.” Tennie left the department just shy of his retirement and pension.

Ms. Harrison tells the story of the case. She uncovered systemic violations, harassment, discrimination, and retaliation across Los Angeles fire stations. She explains that “Tennie broke my heart.” This case helped spark necessary changes in the Los Angeles Fire Department. Ms. Harrison now works together with community groups and civil rights organizations to create systemic change. She said, “When there are committed people who remain focused on what’s right, we can make the change happen and it can be different and it can be substantially, measurably better.”

Other Episodes of Trial Lawyer Talk

To listen to other episodes of Trial Lawyer Talk and hear from the best trial lawyers in the country, go here.

The post Trial Lawyer Talk, Episode 63, with Genie Harrison appeared first on Law Offices of Scott Glovsky.

Today, Don discusses what many lawyers around the country know as “Donisms.” “Donisms” are pieces of wisdom that Don uses to help educate lawyers to become better people. And to become better husbands, wives, parents, children and lawyers. In this episode, Don explains the meaning behind several “Donisms.”

About Don Clarkson

Don Clarkson, owner of Clarkson & Associates, began training in psychodrama at St. Elizabeths Hospital in Washington, D.C. in 1961. He attended the Moreno Institute where he trained with Dr. J. L. and Zerka T. Moreno. He is certified as a Trainer-Educator-Practitioner by the American Board of Examiners in Psychodrama, Sociometry and Group Psychotherapy. He was on the faculty of Howard University. During the late 1970’s and early 1980’s, Don pioneered psychodrama training for trial lawyers through the National College for Criminal Trial Lawyers.

“Donisms”

• You cannot tell someone else’s story until you know your own story.
• Listening is like holding another person. (Our greatest tool is our ability to listen.)
• You need to say something for yourself – regardless of whether it is going to do any good.
• Our job in life is to recognize the holes in the ground from our childhood or from our past so that we don’t fall into them again.
• If you can’t talk about something, it’s out of control. (If there is something that bothers you in life, that’s really the direction you need to go.)
• The place that seems most dangerous is where safety lies.
• Love is the essential ingredient out of pain. Once you manage to endure the pain and come out of it, you allow yourself to be loved.
• Our goal in life is to understand who we are, to forgive our parents, and to forgive ourselves.
• Without pain there’s no growth.
• People pleasers often don’t get pleased.
• How we leave each other says how we’ve lived together.

Don ends by sharing how to hold someone and how to say goodbye. He explains, “I make it a purpose not to pat (someone’s back). And I make it a purpose also when I see someone to look at them. When I’m getting ready to leave, I say to myself, this may be the last time in life that I ever see you. So I want to take this moment to feel who you are.”

 

The post Trial Lawyer Talk, Episode 62, with Don Clarkson appeared first on Law Offices of Scott Glovsky.

About Marjorie Russell

Marjorie Russell of MARJury Consulting lives in Michigan. She specializes in holistic case development; client, witness, and lawyer preparation; and jury selection. Marjorie has been a law professor for many years. She graduated from Gerry Spence’s first Trial Lawyers College (TLC) class over 25 years ago. Marjorie has been on the faculty of TLC ever since training some of the best lawyers in the country.

About this case

Marjorie discusses a case of a 19-year old man named David who got into a car accident causing two broken wrists and neck and lower back problems. Four years later, he had undergone surgery and his hands were still injured and he was in pain. David was unemployed, living in his parents’ home, and drinking heavily. In depositions, he seemed lazy, greedy, and like he was waiting for a large payout from the accident. David’s lawyer felt the jury would reject him because he could not get David “to talk about himself in a way where he didn’t validate the picture that the defense lawyers wanted to paint.” He called Marjorie to help.

Marjorie tells the story of how she helped turn the situation around for the trial. She says, “I think my best help is connecting with people and helping them feel comfortable fully being themselves, especially about the things that people want to attack them for.” In reality, David was a good person who “had reached a point of hopelessness.” They turned the story around from David as a “bad, irresponsible, horrible person” into a story of David suffering because so much had been taken away from him. In the end, it was a winning trial and “a story of redemption” for David.

Results

Marjorie ends Trial Lawyer Talk with, “That’s my reward. When I see the healing and when I see the confidence. When I know that the lawyer has been able to take what we’ve discovered and make magic with it – that the jurors are lighting up with recognition. They know what that’s about. They understand that kind of struggle and that he did become a hero in his own life. And that is the bottom line for me. I want to know how has the person were helping become a hero in their own life, and how can we show that story?”

Transcript of Episode 61, with Marj Russell

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky. I’m your host for this podcast where we speak with some of the best lawyers in the country. Today, we have a real treat. We have one of the wisest, most thoughtful, and most strategic trial lawyers and trial consultants that I know. Marj Russell is from Michigan. She graduated from the first class of Trial Lawyers College and has been around TLC and teaching ever since.

That’s more than 25 years of honing, discovering the story, connecting with your clients, and really refining the skills that make us credible, genuine, and authentic. Today, Marj is going to share with us really a methodology for how to take the weakest aspects of your case, the ones that keep you up at night, the ones that you’re scared of, and voir dire, and turn those into part of our trial story.

Marj goes into aspects of discovering the story, of connecting with the client, of going to those places that seem the most dangerous, the most scary, and working through those and integrating those into the heart of our case, and then taking those issues and using them in voir dire.

You’re really going to enjoy this episode. There’s a lot of richness and a lot of lessons that Marj provides. So enjoy. And don’t forget, please subscribe to the podcast, I would really appreciate it. And if you could go on iTunes or wherever you get your podcasts and give us a good rating, because I really want other people to know about what we’re doing because I think these lessons are good for all of us. Let’s get going.

I’m very pleased and humbled and honored to be sitting with Marj Russell. We have a lot of brilliant folks on Trial Lawyer Talk. Marj is absolutely a genius. Marj is a trial consultant who has been a law professor for many years and has trained some of the best lawyers in the United States and is an absolute genius of trial strategy. Thanks for being with us, Marj.

Marj Russell:

Thanks for having me.

Scott Glovsky:

Marj, can you share with us a story of a case that had a profound impact on you?

Marj Russell:

The one I’ve been thinking about is a trial that we did recently within the last several months, and it came to mind because I think it really illustrates for people what I do. I get asked a lot. “What is it that you really do?” And because I work in case development, not just jury selection, it’s really hard for me to figure out how to answer that question. I always feel on the spot.

This case kind of crystallized for me a way to talk about it. I was able to see what really happens with how I approach things. The story is a simple case. A 19-year-old guy gets into a car wreck, and what a plaintiff’s lawyers don’t like to hear and defense lawyers like to say low-impact, or a a minor impact. What does MISD stand for?

Scott Glovsky:

Soft tissue.

Marj Russell:

Soft tissue. Okay. It actually wasn’t really soft tissue. He got broken up worse than that. Both of his wrists were broken and he had neck and lower back problems right away, so all of that did show. Ended up having to have surgery on one of his hands. It’d taken really a long time to kind of get through stages of recovery.

The story of how I get involved in cases most often is that a lawyer will call me and say, I’m really having trouble connecting with this client, or I feel like this client has some really bad stuff in either his behavior or in his history, and I don’t know how to handle it. I can’t quite get the stories out of them. Maybe jurors are going to hate him for it. I don’t know how to put this together in what legally is a good case, and as a matter of the damages is a good case. These things about this guy, or some little aspect of the story, make me afraid that the jurors are just going to get on that and not really see where justices is.

By the time they took depositions in this case, David had reached a low point, and it was about two years after the wreck. He had already had the surgery on his hand and he wasn’t working. He was living at his parents’ house with his girlfriend. He was drinking to excess, seriously to excess, and had reached a point of hopelessness. That’s the plaintiff that the defense lawyer met.

That’s what the plaintiff’s lawyer expected the defense to focus on. We’ve got a kid who got in a wreck and then just decided to go live in mom and dad’s basement, not work, wait for a payday. He wants to hit the lottery, and make him look like he was lazy and greedy and all those things. From what is actually in the deposition record, he looks like that. He really does.

So, when the lawyer called me, he just said, I don’t know what to do because I love this guy, and he’s amazing. He makes himself look bad. I can’t get him to talk about himself in a way where he doesn’t validate the picture that I know the defense lawyers want to paint. So, it’s not just what’s going to happen in cross-examination. It’s what’s going to happen. Even during direct exam. The jurors aren’t going to like him. I’m afraid they’re going to reject him for the things that have happened, and I don’t know what to do because he’s really badly hurt and there’s serious damages. He needs treatments and surgery. They found out that his discs in his lower back were actually torn and it hadn’t been diagnosed properly, or they hadn’t gotten to that stage of things. There wasn’t any error by the doctors. So, we have to take care of him.

We knew that on liability, even though they still hadn’t admitted it, that really was an easy case. Their driver was coming out of a parking lot, trying to cross six lanes of traffic to continue, it was a T-road, to continue on that road. He could see David coming and just went anyway, and David had no way of avoiding hitting him.

Fault was clear. We weren’t worried at all about that part of it. It was really the way we felt jurors would reject him, or at least the lawyer did and said, please, come help. What I’ve discovered is this, it’s kind of the essence of where I think my best help is in the before trial part is connecting with people and helping them feel comfortable, fully being themselves, especially about the things that people want to attack them for.

When they can get to a place where instead of wanting to deny being a forceful woman, for example, they can say, yeah, I am the kind of person that doesn’t want you ordering me around unless you’re my boss. I don’t see anything wrong with that. Instead of going well, I don’t know what you mean, or, you answering back or trying to deny it. If they can relax into it and own it as part of themselves or a piece of behavior. Own it as part of themselves that then when they believe that when they start realizing they don’t have to act like someone else they can actually say yes to everything that’s true about them without having to explain it away, without trying to explain it away, or defend against it. The lawyer sees it then the lawyer relaxes into the idea that we can tell the story that way, and it won’t backfire on us.

Sometimes that’s the harder project. That what’s been happening, is for instance, in this case, the lawyer is afraid of how they’re going to throw dirt at him because there is some truth in it. It’s true that he was living in his parents’ house and not working and drinking to excess, and his girlfriend was living there too. He didn’t get surgery or continue on with physical therapy. It all sounds and looks ugly and it’s all true.

The lawyer wants to find a way to kind of make it not true or avoid having to talk about it. My philosophy is, no, the essence of the story must be in there somewhere. What looks like the worst place, if you embrace it and try to say yes, that is true, and it’s important to know because when we know that then we’re going to understand some of the “why,” then we can find where the truth is.

So, I work with the client or the witness to get them to where they can say, yep, that’s true. Yes, I was doing that. Yes, that did happen. I’m okay with or maybe I’m ashamed of it now looking back and here’s what’s different today.

Scott Glovsky:

So how did you do that in this case?

Marj Russell:

With David, first, we just met together and actually got together with the lawyer and David and the woman who is now his wife and was his girlfriend then, and we just had a meal together. Just talked about things. Got to know each other. Didn’t really get into anything related to the case. Learned about his family a little bit.

Then when we sat down, that was dinner when I had come into town, when we sat down to work the next day, the first thing that I tell people when we’re working this way is I’m there to really help them by being the voice of our enemies and not just opposing counsel or the defendant, but also the people who could potentially be jurors and would hate us.

It doesn’t mean that I believe these things and still they have to be said aloud. We have to find out how you respond and react when these things are brought up and we have to find the real truth of them, so we can tell a true story, and so that you can be comfortable being honest in court. It’s not going to be pleasant. I may get you really angry. I’ve had people storm out of the room. I’ve had people refuse to continue working and have to be lured back the next day.

I tell him, it’s okay if at the end you don’t like me very much because it’s for you and your lawyer so that you can get justice. I’m on the team, but I don’t have to be your friend. I think we will be friends at the end. I think we’re going to be really happy with how this happens, but it doesn’t have to go that way. Okay?

I’m going to poke you with some sharp sticks, and we will find how to get justice through doing that. I began going through the list of things that the lawyer had given me that were the danger points. The things that the defense was going to poke at and say, well, let’s talk about this, not working, about the living at your parents, about the drinking, and what we learned in the end was that for David, this really had been the low point and the mid point in what was now a four year recovery period since the crash.

That was when the defense lawyers had met him. So by going all the way back in time to right after the crash and finding out how he felt then first, what I learned was he really was someone who had risen to the occasion at the beginning. A week after the crash, he got a new job and he got promoted three times at that job.

The problem was, it was at the gym where he used to work out before he got hurt. He ended up being the manager of the place. It was also the thing that sent him into the bottle because every day, and this is that part. This is the part that I’m not sure I’m always very good at describing how we get there, but somehow by just talking about things like, what’s it like on an ordinary day at work? Put yourself behind that front desk where you stand for most of your shift watching what’s going on in the gym, keeping track of your employees, greeting people when they come in, what are you thinking?

Turn around and look into the gym and what do you see in there? How do you feel when you look at that? What we discovered was that he was torturing himself. He had been this guy before the crash, who worked out all the time, who prided himself on his physical fitness. He was going to school. It was a big part of his life.

The reason they hired him at that gym was he had lived there, and it was a slap in the face every day. I can’t do that anymore. I might not ever be able to do that again. Look at my body. My muscles are going away. I started to get fat. My hand doesn’t work well. I’ll never be able to lift again because they did the surgery on my hand and it still doesn’t work.

That was where he lost hope and started drinking. He quit the job technically, and he would say it that way. I technically quit, but they would’ve fired me. I deserved it. I was coming drunk on the job. I quit school. My girlfriend was pissed off at me. I’m lying in my bed in my parents’ house drinking all day long. That was my lowest point.

As we continued on, we take just points in time on the calendar and say, well, let’s go forward to here. What’s the next thing that happens? Well, the next thing that happened is my girlfriend put her foot down and she said, do you want me to stay with you? If you do, you got to stop this stuff. You got to quit drinking. You have to get serious about trying to get well. This isn’t okay. I did because what happened was for some reason and right now, I need to pause for a second and think because I don’t think it was his girlfriend that brought this to me, I think it might’ve been his dad.

Yes. His dad had always been kind of a disapproving guy. One of the funny jokes we had. I digress here for a minute. One of the funny jokes we had among the trial team and with David and his wife was one of the things the defense lawyers like to beat on was that he wouldn’t even help by mowing the grass when he was at his parents’ house. He’s like, if I ever tried to touch my father’s lawnmower, he’d throw me out of the house. He’s serious, obsessive compulsive. He is a military guy. He would not let anybody ever do that. Oh no, I did help with things. I did this, and he went on to other stuff, but it was one of our jokes about our lazy ass.

But what happened was his drinking got so bad, he landed himself in the hospital. He and his girlfriend had gone to the grocery store and he was super depressed. She will tell us now, I was enabling him. I would take him if he wanted to go buy something to drink. He bought what they call a handle. It’s one of those big bottles and drank the whole thing before they got home, and ended up being hospitalized from alcohol poisoning.

When he came home, the story we learned, and see some of this just gets complicated because we have to follow the little rabbit trails. The story we learned was that when he came back to his parents’ house from the hospital, he walked in the door and his mom and his dad were standing there right inside the doorway. I asked him, what did they do? What did they say? Show us what they didn’t say.

I was fully expecting having heard the stories about his dad and how rigid he was, and he would yell, and not let you use his lawnmower, I was expecting that he was going to get a lecture. That this was going to be, you need to hear this lesson buddy, and straighten your life out, and that it was going to be a sermon. Instead, it’s going to make me cry, thinking about it. It made David cry when I asked the question. He just started crying and I went, can you tell us? He said, my mom didn’t move. My dad rushed toward me and threw his arms around me and started crying and said, I’m so glad you’re safe. I love you. He had never done that before.

Then David said, in that moment, “I realized the effect my behavior was having on everyone else. I saw my mom’s suffering. I realized how much my dad loved me and cared about me and wanted me to get better. I quit drinking. I went back to physical therapy. I got a job and I’m registered for school next semester.”

So, what started as a how do we deal with a guy who just has not taken care of himself? And the defense has a right to point their finger at some of how he’s behaved during these four years, turned into a story of redemption. Of how much more devastated, how much more suffering came to him from this crash. His suffering expanded from us being able to say yes to the story because your pain is your bodily pain.

Your pain is your bodily pain. Your suffering is what’s been taken from you. It’s emotional. In that period, when he lost his sen of self that was what was taken from him. He suffered in that job every day because he wasn’t the same David anymore. When we could tell the story as part of the suffering that was inflicted by the crash, and what did he do with it When he realized his effect on other people? It became a story of redemption. There was no way the defense could ever break that story.

That led us, well, first of all, one of the amazing things, and this is part of what I love about what I do and how I find my ways to connect with people is the lawyer never heard the story about his dad hugging and kissing him and crying. He had never heard it before. Of course, when he heard it, he knew it was going to be a key. It was also the key that opened David up to being able to sit back and relax and say, yeah, I drank really, really bad for a while. He came out of it because he became unselfish.

Then you see it allowed us in the trial to not only have David not be a bad, irresponsible, horrible person, it allowed us to expand damages. If you’re in trial for that, we need to worry about it. It also gave him a different kind of credibility because he was a generous person, not a greedy person.

It took away the ability of the defense to call him a greedy person, to call him a lazy person, to call him someone who was just waiting for the jurors to pay him. All of that came from saying, yes, I quit the world for about nine months and I’m ashamed of it. It was horrible. My now wife almost left me over it.

When he could do that, the whole world opened up for us. Then we knew what to do with his wife and what to ask her about and what stories she could tell from the stand about when she reached a point of despair, and do I stand by him, or do I leave when she was still his girlfriend. When you meet her and see what a wonderful person she is then you start saying to yourself, that quality woman stands by him there’s got to be something good about him.

The jurors saw all of it and went beyond what the lawyer asks for in their verdict. That’s the story of David and the piece for me about my work that it really crystallized was that cycle of helping the client or the witness to be comfortable with themselves, helping them to be able to say yes to everything that’s true. Then that somehow opens the story into the thing that will save us.

I’ve learned that over and over and over again. Josh Carton, one of our great teachers uses a quote about that, and it’s I think the place that seems most dangerous is exactly where safety lies. I think Barbara Cook is the author. I can remember it now. I use that as a touchstone a lot. Go toward that danger because if we say yes to the true part of it, we’ll find a way out of that darkness and that it really somehow holds the key. It can make friends of the people who are most likely to be our worst enemies in the courtroom.

That’s pretty darn cool. The ones who even might see yeah, a liability sign, but I’m going to drive your damages down because I don’t like him very much. That person can become a friend when we find that honesty. Somehow this is the piece that I hadn’t realized before, but I saw vividly in this case, the lawyer really was the one who had to be convinced that when we went toward that truth, it would be okay and it wouldn’t backfire on us and they wouldn’t end up with more ammunition.

Once he saw David transform then he could feel confident going into the courtroom and saying yes to all of those things and looking the jurors in the eyes and not being worried about it. It’s kind of being able to be in the position with the defense of going, thank you, sir, may I have another?

And wanting them to come out with all that stuff. Sometimes what happens that defense starts to crumble. They come out with that bat in their hand and they start trying to wack you with it, and they see that it’s going the other way. They start getting up pieces of their case because they’ve gotten the backfire.

Every way it goes. It weakens their side and it strengthens ours. It gives us the way to find the bonds with the jurors. He has a loyal girlfriend and wife, he’s generous because he sees he’s hurting his parents and he wants to do something selfless to ease their pain. Those are the things that when the jurors find them, makes them love the person who needs help, and makes them step forward to do it.

Scott Glovsky:

It seems that you’re integrating the heart of the defense case into your trial story and making it part of the story and taking the power out of it?

Marj Russell:

Yeah. That is what it is. I think lawyers get oriented to, and law schools train us poorly for this. They get oriented to either trying to put lipstick on a pig, if you will. Make it look pretty if we can, or finding a way to keep it out of the case. Sometimes you can keep some things out. That’s fine.

What I started realizing over the years was that the problem is the reason we’re afraid of it is because there’s some truth in there somewhere. There’s some truth in there somewhere. There may be a whole bunch of it that’s not. There may be a whole bunch of it that comes from bias or prejudice or bigotry, and that the defense wants to play on those things. They’re seizing on a fact before they seize on that, and then they want attach the two things together.

That’s what we really fear is that they will be able to say, see, here’s the record. He skipped four medical appointments. We know that fear. You and I share that one about a case. That’s what makes the lawyers sort of close into lawyer mode about it.

Scott Glovsky:

Fear.

Marj Russell:

Fear, and an orientation from their training to either try to keep it out or to try and make it prettier. What I’ve learned from Trial Lawyers College training and psychodrama training is that if you lean toward it and say yes to the truth, and let me learn more about that truth and where it comes from and why and how it happened that I am going to find in there the crack that lets the light in where we can not only not run from it, but cling to it.

When you find that, it takes all the power out of the other side. It takes all the power. Then when we turn to jury selection, we go back to validating the defense premise. They’re going to tell you, two years after this crash happened, he’s living in his parents’ basement, he’s not working, he’s drinking to excess, his girlfriend’s thinking about leaving him. Doesn’t it seem like he’s just waiting for somebody to give him a payday? Through that discussion we find the jurors who are firmly fixed in the belief that anybody who sues after a car crash and anybody who’s not working at any point in time after a car crash is lazy and just want somebody to pay for living. Give them a big bonus.

Those are our enemies who probably can’t be brought around even with a great story. Those are the ones that we’re going to exclude from the tribe. Everyone else is going to have a neutral conversation about what happens to people when they’re badly hurt, and who gets to say how you rise to the occasion? Who gets to say how quickly you need to rise to the occasion? Who gets to say how fast you rehabilitate yourself? Who gets to say when you should be saying yes to your surgery?

Because we had a defense lawyer who wanted to point the finger at David and say, he should have already gotten surgery. He wants to sit here and pile on with you guys because he’s letting himself get worse. He wanted to point it at him and say, he’s a young man. He was young and strong. He should have risen to the occasion. He should have done better.

Well, if you stop and think about it, ordinary people know a whole lot about being told you shouldn’t be grieving anymore by other people. When are you going to get over this? When are you going to stop being so sad that your husband died? When are you going to be through with all of that laying around in your chair because you’re hurt you. You haven’t gotten out of your depression quick enough. People know lots of stories about that kind of judgment. We were pretty sure that judgment wasn’t going to sit well with most people.

That some would really feel that way. Get up off your butt, get yourself some treatment, be serious about it and get to work or school or both. They weren’t going to have any room for ups and downs in that process, so we wanted to find the people who had either been told that they didn’t rise up to fight their cancer well enough, or they should have gotten a surgery sooner than they did things like that, or who felt bad themselves for having said to somebody, you shouldn’t still grieving. Because we knew in the end then they would be able to see his journey and how he did in his own time find the way home.

Scott Glovsky:

Wow. What a story. The insight that you’ve provided is spectacular because our colleagues out there are scared of the weaknesses in their case. It caused them anxiety, caused them to lose sleep, it causes them not to be present in the courtroom, and you found a magical way to empower them to find the real story and to take the anxiety and fear to a large extent out of their case. In fact, take them out of their lawyer heads and put them in a story as well.

Marj Russell:

I don’t like to use the word magical because I don’t think there’s magic to it. It’s about tuning into people. Opening your heart and being able to reverse roles with them and imagine how they might feel. Seeing David on the witness stand and how amazing he was when he testified and how relaxed and his best self with his smile on, it was hard to get him to smile even when he was in a good mood.

He’s not a smiley guy, but he could get his smile on and that he could relax around his eyes and his jaw not be all tensed up, that reward mattered more to me really then the verdict did in the end. It was seeing him feeling so comfortable with himself and so good about the journey and not feeling ashamed anymore that part of it had been really hard.

There was a moment during cross examination when the defense attorney was being pretty darn hard on him. He just sat back in his chair and he turned toward the jurors and he paused for a long moment, and he said, I’ve thought about that a lot. You’re probably right. He didn’t say anything more. The defense attorney stopped that line of questioning.

That’s my rewards. When I see that healing, when I see that confidence, when I know that the lawyer has been able to take what we’ve discovered and make magic with it there. That the jurors are lighting up with recognition. They know what that’s about. They understand that kind of struggle and that he did become a hero in his own life. That is the bottom line for me. I want to know how has the person we’re helping become a hero in their own life, and how can we show that story? That’s where we go.

Scott Glovsky:

Simply brilliant. Marj, thank you so much for joining us and sharing your wisdom. There’s so much insight that I know we’re going to have lots of folks reaching out to me to have you come back. Will you come back another time?

Marj Russell:

I will.

Scott Glovsky:

Thank you so much.

Marj Russell:

Thanks.

Scott Glovsky:

Joining us today for Trial Lawyers Talk. If you like the show, I’d really appreciate if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s S-C-O-T-T G-L-O-V-S-K-Y.com.

I’d love to hear your feedback. You can also check out the book that I published called, “Fighting Health Insurance Denials, A Primer for Lawyers” that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials. Have a great week. We’ll talk to you in the next episode.

The post Trial Lawyer Talk, Episode 61, with Marj Russell appeared first on Law Offices of Scott Glovsky.

Laura O’Sullivan is a trial and appellate attorney with over 20 years of legal experience. Currently an Assistant Public Defender in the state of Missouri, she previously was an Associate Clinical Professor at the University of Missouri, Kansas City School of Law, and held a variety of other positions including at the Midwest Innocence Project. Laura’s specialties include trials, post convictions, criminal and family law, teaching students, and training attorneys, managers, investigators and support staff.

During the young man’s trial, several witnesses helped tell the story of his life. The jury’s decision restored Laura’s confidence in the love and openness of people to really listen and to reach a verdict based not just on the incident at hand, but instead on a person’s whole life.

Laura discusses how she doesn’t grow bitter and cynical representing clients who sometimes have done terrible things. She shares that often her clients have had difficult childhoods and are suffering from addiction or mental health issues and are facing a system that has failed. She’s learned from her clients that people have different needs, and sometimes a need is to be heard. Her role is not to control, but instead “to do the best (she) can and to help her clients through what is probably one the most difficult times in their lives.”

Laura then turns to her work on constitutional challenges in Missouri.  “Missouri’s public defender system is 49th out of the 50 states in terms of funding. So, we have an underfunded and overworked public defender system. We have more clients than we can handle. What we’ve done in Kansas City is to look at our ethical obligations and the constitutional rights of our clients to have an attorney.”  Clients, attorneys, and the ACLU sued various state offices.  An update can be read here.

Laura finishes with a story about a client who was a representation of the strength of heart and strength of mind.

Transcript of Episode 60, with Laura O’Sullivan

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky, and I’m your host for this podcast where we speak with some of the best trial lawyers in the United States. We simply have great lawyers tell great stories from cases that had a profound impact on them. So let’s get started.

I’m very glad to be sitting with Laura O’Sullivan, a friend who I’ve known for many years. She’s a wonderful criminal defense lawyer, who practices in Kansas City and is really leading some very important constitutional challenges that we’ll talk about in a bit. Laura, thanks so much for being with us.

Laura O’Sullivan:

Thank you so much for having me.

Scott Glovsky:

Laura, can you share with us the story of a case that had a profound impact on you?

Laura O’Sullivan:

Yeah, actually it’s a recent case that I handled with a client, it was a young man, had been in foster care all of his life and really had a tumultuous childhood and he was charged and we took his case to trial. He was facing some pretty serious and lifelong consequences, and there were allegations of inappropriate behavior with some other children. We fought a valiant fight, I think, on his behalf and the jury ended up returning verdicts of guilty, one of a lesser crime, so of a misdemeanor, and another one of a serious felony.

And in Missouri, we got a sentencing phase for people who have no prior convictions. And so we went to that sentencing phase and I will never forget it, because I started that sentencing phase before the jury crying. And telling them that obviously we were devastated by the verdict, but that we saw how long they were out and that we accepted their verdict and that we really hoped that they would listen during this phase to information about his life, and that they would sentence him as an entire person, not just as a result of the acts that they had found him guilty of.

And the jury really paid attention and really listened. And we had several witnesses and they went up and they deliberated for a very long time. And they came back in this extremely difficult case with verdicts that really did take into account the information that we provided to them in a very difficult case. And so they ended up sentencing him to the minimum on the felony and within the range on the misdemeanor.

My confidence in the love and the openness of people, to really listen and make a determination based on somebody’s whole life was really restored.

Scott Glovsky:

Let’s deconstruct that a little bit and back up because for you to get there, you must have listened. So take us back to that courtroom when you started crying and how did you get there?

Laura O’Sullivan:

Well, one way I got there is because I loved my client, and it’s a difficult thing when you’re a public defender getting enough time with your clients. This client happened to be out on bond. And so I was able to count on him to come by my office and to help me really … And he would come by my office and we would spend time together and I got all of his background information. So, the first place is coming from a place of truly loving him and really understanding and listening to his childhood.

Scott Glovsky:

Well, tell us his story.

Laura O’Sullivan:

He grew up in a sort of large family, but his family had addiction issues. And so it ended up that he was taken away by the division of family services and he was placed in a group home because he was too old to be adopted. So he had grown up in a super tumultuous family, where the mom and dad are not really there. They’re gone for periods of time and he and his brothers and sisters are fending for themselves as young kids.

So then they end up getting taken into foster care or group home, and he never had a family until the very end when he was about 18. He moved in with this family. And for the first time he’s living with this group of people at what he thought was a family, and they really ended up betraying him. And he was the odd man out in this whole family dynamic.

So, because of his trauma through his childhood, the way he would react to situations is he would withdraw. He wasn’t the kind of person who would defend himself. He would withdraw within himself and so he was really a loner. And had some difficulty in those skills of getting along with people. And so it sort of made him an easy target for this allegation. And I think that’s what ended up getting him to my office.

But in the sentencing hearing, the other things I learned about him were that when he got out on bond, his therapist from when he was in foster care offered to have him live at his home. And that told me so much about him, about both the therapist and about my client. So, he had that support, he had a job and the people who gave him a job, that couple would have him over for dinner, and they came and testified.

And his sister who had really fought for him when she was younger, but well she was too young also. She came in and spent all of her money, including her money for rent to get to court, to be able to be there to testify for him. So, it was an interesting look at a young man’s life, who had this tumultuous past, but also had all of these relationships from people who really loved and cared for him.

Scott Glovsky:

How do you not become bitter and cynical when you’re spending your life representing lots of folks who’ve done some terrible things?

Laura O’Sullivan:

I kind of consider those two different questions. So, I often am representing people who, most of the people that I represent have committed some sort of crime. So, the statistics bear out that the majority of my clients have committed some sort of offense and my job is to work with them, to educate them on the system and to come out with, hopefully to help them come to the best possible result for them.

And that may mean that they’re not charged correctly. The charge is way too high and really their offense is much less, or it could be that they have things in their life that are, what we call mitigating or there’s good parts about them that they should get credit for, sort of.

And so, generally I am there to help the person in front of me. And for the most part, I get along very well with most of my clients. They’re often suffering from some sort of addiction issue or mental health. Those are the two primary issues and they’re rampant. And so, but also I would say there’s a great percentage of the people that I represent that have grown up in, had difficult childhood and really, haven’t had certainly the benefits that I had.

The second part is how do I represent people and not become bitter? I think really, I find that to be the more challenging aspect. Because I do get to know my clients, and I do care for them. And when I see a system that I think has failed. So the story I just told you, I don’t agree with their first verdict. But I have to set that aside, so that I can get the best possible results, even though I disagree with their first verdict of guilty.

So, that happens and it happens more often than I’d like, but I also have to remember that I’m not in charge. I’m not in charge of this big world. And oftentimes I think I know what the right thing is, but the one thing I have learned is, I don’t always know what the right thing is.

And so all I can do is be there to provide the best information to my client who’s it’s their case, not my case. I’m there to guide them and to provide them with the best information to make the decisions that are right for them. And beyond that, we’ve just got to do our best and hope for the best.

Scott Glovsky:

I think that’s an interesting lesson because as trial lawyers, many of us feel the need to control everything.

Laura O’Sullivan:

Right.

Scott Glovsky:

And how have you learned that we can’t control everything?

Laura O’Sullivan:

I think that it is, because when I realize I’m not in control of everything, I think things turn out better, honestly. And I’ve learned a lot from my clients. And one of the things that I’ve learned from my clients is that, I can’t make their decisions. So, when I was a young lawyer I used to think I knew what was right. Oh, you should take this deal or don’t go to trial.

What I realized is that, people have different needs. And so one need of a client may be that they need to tell their story and whatever the outcome they need to be heard, and that maybe more important than the number of years that they get or the outcome. And so it’s been really helpful to me to learn these lessons as I go along the way and hear my client tell me what they need, and that’s I think the most important thing. And then from there what I realize is, control is not real.

Scott Glovsky:

Say more.

Laura O’Sullivan:

I think if you think you that you’re in control of something, you really probably are not. None of us are in control, and I certainly don’t have the ability to control jurors or judges or opposing counsel, and certainly my goal should not be to control my client.

I think that just gets you into an impossible situation that is incredibly frustrating. And I say that from experience, from having tried to control situations in the past, and in my opinion, it’s much better to just recognize from the get-go that I’m not in control, I’m here to do the best I can and to help my client through what is probably one of the most difficult times in their lives.

Scott Glovsky:

Speaking of not being in control, I know that you’re doing some amazing work with some constitutional challenges in Missouri. Can you tell us about that?

Laura O’Sullivan:

Yeah. So, it’s well documented that the Missouri Public Defender System is, I believe it’s 49th out of 50 of the States in terms of funding. And so we have an underfunded and overworked Public Defender System and it’s one of the worst in the country in terms of paying and in terms of overload in cases. And so, what that means is we just have too many clients, we have more clients than we can handle, and what that means is that poor people are not getting the representation that they deserve, number one.

But number two, the people who represent poor people are being treated differently than attorneys who graduated from the same law school, maybe ranked above or ranked below that happened to go to a different law firm. And so we have a lot of great people who want to help others who are being treated differently than other attorneys.

So, what we’ve done in Kansas City is to look at our ethical obligations and the constitutional rights of our clients to have an attorney. Not a person standing next to them that they’ve met once or twice, but to have an attorney who’s investigated the case and who they are able to form a relationship and trust with. And so what we’ve done is we’ve let the court know that as we look at our ethical obligations, our ethical obligations say that we can only as an attorney accept that as many cases as we know we can appropriately handle.

And for those other people who the court wants to appoint to us, we have to form a postponement list, where we say, “We want to get to you, but we have too many cases right now.” And so we are doing that because our ethical rules tell us that we have to. It says, “We shall not accept more cases than we can handle.”

So, we’re fighting this fight both on individual attorney basis, as well as on that constitutional basis that the client has. And the way that it could impact the attorneys in our office is, we’ve had a couple of attorneys in our system who have been disciplined by the bar for not communicating enough or failing to do something in a sentencing hearing with another person.

And in arguing those cases, the Supreme Court said, “We’re not going to treat your attorneys differently. Just because they work for the public defender’s office, they should have the same obligations.” And so what we’re saying to the court is, “Okay. If that’s the way that we should be approaching this, then we need to do this.” And that’s meeting with a lot of resistance by the courts.

Scott Glovsky:

So what’s the status of the dispute or litigation.

Laura O’Sullivan:

So, we’re fighting it on multiple tracks or it’s being fought. The track that we are fighting it, there’s a hearing that is scheduled at the end of this month, May 30th I believe, in Kansas City for the presiding judge to hear a pleading that we filed, our office filed saying our office has attorneys that are overloaded, and we want to start a wait list. Okay.

Laura O’Sullivan:

So that’s a statutory, there’s a statute in place that allows us to try and do that. The other thing that’s happening is the ACLU sued our system and said, “You have too many cases. You’re not representing the clients appropriately.” That case, the Public Defender System and ACLU have come to an agreement and want to sign a consent decree that would allow us to have caseload standards in our system. The Missouri attorney general just filed a motion to intervene. And in there suggests that the public defenders are just trying to work a 40 hour week and they’re just lazy.

Scott Glovsky:

Wow. Do you think that’ll go up to the Supreme Court?

Laura O’Sullivan:

So, I don’t know if the federal judge will allow the Missouri attorney general to intervene. So we’ll see that, whether that happens or not. And if it does, I don’t know where that might go. We’re hopeful that they will be allowed to just do the decree and we can … because that case has been pending for a couple of years now. It took a while to get to this point. In terms of the hearing that we have in Kansas City, if the court does not find that we’re overloaded, then I’m sure that we would appeal that.

Scott Glovsky:

Can you share with us a story of a case where you learned something profound?

Laura O’Sullivan:

Yeah. What immediately jumped to mind actually has to do with a case that I worked on where a client was exonerated, actually. So I had a client who was in prison for 30 years for a rape, and I got involved and we were able to fund some DNA testing that proved, that not only proved that he did not do it, but actually identified the real perpetrators. And what I learned was, I learned it from my client. And I think it’s the power of forgiveness and the power of moving forward and not looking back.

So, this gentleman got out of prison after 30 years, and all he really wanted was to get a job and to get an apartment of his own and live his life in a quiet, unassuming manner. And that’s what he’s doing. And when I see him and I think about some of the problems that I have, he’s such a representation of strength and strength of heart and strength of mind. I think both.

Scott Glovsky:

What advice do you have for young lawyers out there, and especially public defenders?

Laura O’Sullivan:

Trust your gut, ask for help and treat people the way you would like to be treated. And I think if you do those things that you will have a really good start. But I think the people who get in trouble here and there are the people who decide they should come into the courtroom thinking and looking and acting like they know everything and that it’s their courtroom and that they’re in charge. And the reality is usually it’s the clerk’s courtroom. They’re the ones who are running it, and you don’t know everything. And so you should show others respect and ask questions and show some humility, and I think that’ll get you a long way, both with court personnel and other attorneys.

Scott Glovsky:

Laura, thank you so much for sharing your wisdom and for the fight, the courageous fight that you’re waging in Missouri, which really is an example for lawyers all over the country to doing what’s ethical and what’s right, despite the pressures and the feeling of fighting the system. And thanks for joining us.

Laura O’Sullivan:

Thank you. And I would hope that other attorneys that don’t practice criminal law will take a moment to support our efforts, both in Missouri and around the country.

Scott Glovsky:

Thank you so much.

Scott Glovsky:

Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s S-C-O-T-T-G-L-O-V-S-K-Y.com and I’d love to hear your feedback.

You can also check out the book that I published called Fighting Health Insurance Denials: A Primer for Lawyers that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people. And it provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.

The post Trial Lawyer Talk, Episode 60, with Laura O’Sullivan appeared first on Law Offices of Scott Glovsky.

Joseph H. Low, http://www.attorney4people.com, has a national reputation for his expertise in trial law. He has conducted trials all over the country in Federal, State and Military Courts. He focuses his attention in representing people who have been bullied by corporations and the government. Areas of his trial work have seen him with victories for his clients including personal injury, medical malpractice, business litigation, civil rights violations and criminal defense.

Joey framed the value of this case by showing the jury who his client was and how she showed up for others. The value wasn’t about her age or how much time she had left on earth, but instead about the life she had led up until the accident. As Joey said, “it was important for the jury to see everything that was there, not just what wasn’t there any longer.”

A legal immigrant to the US, Joey’s client learned English, got educated, became a nurse and earned American citizenship. She had a “special connection serving others who couldn’t serve themselves.” After the accident, she had anxiety, fear, and isolated herself from her family and community. The accident not only changed her, it also changed other’s experience with her.

After showing the jury who his client was before the accident, Joey addressed the absence of proof of the accident by telling an intriguing story and asking the jury to determine, “who’s earned the right to be believed?”

Transcript of Episode 59, with Joey Low, Part 2

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky and today we have a great case on Trial Lawyer Talk. Joey Low is going to join us again. He previously told us a fantastic story about a criminal case that he worked on. And today he’s going to share with us the story of a civil case. Joey really is an expert at looking at a case and finding the story and looking at ways to frame the case and frame the story that will get to the heart of the universal truths of the case. This story is very insightful for all of us. So let’s get started.

Joey, can you share with us another story of a case that had a profound impact on you?

Joey Low:

Sure. I mentioned it a little bit on the way up the stairs. I had dinner last night with a very well educated and accomplished neurologist who specializes in traumatic brain injury. He was the expert/treater on a case I tried a couple months ago. What he said to me last night was as he shook his head and had a inquisitive smile on his face, he says, “I don’t understand.” He goes, “How did you get that much money for that old woman?” And I asked him, I’m like, “What do you mean?” He goes, “Well, I’ve been telling some of my colleagues what the result was and they do some forensic work, some med legal work. And they’re saying, ‘That’s not real. That’s not possible.'” I go, “What are you talking about?” He says, “Well, I tell them, I say the woman was 76 years old. She had all kinds of difficulties such as diabetes and early onset for Alzheimer’s and back issues, et cetera. She could be dead any day now. She’s not going to be alive that much longer.” Why would they give her $11 million? None of them can understand it.

Then he proceeded to say something complimentary and I cut him off again. I said, “Look, I don’t think you understand.” And he just looked at me and I said, “If we merely look at her like a cell phone whose battery is about to expire, it’s on the 1% mark, what you’ll feel is that, well, that person can’t do anything for me. They’re almost out of energy. For me, when I look at that cell phone, what I see is all of the people that they put that energy into so they could recharge those other people, they could make their lives better. They could show them love. And that is entitled to be respected and that dignity that goes with that kind of commitment towards others is what the real value of that phone is. Not what the battery life is. And that’s what they paid for, what she stood for and what she had been worth up to this point. And that’s why.”

“Then I want to ask that you tell your friends that or your colleagues, so that next time they actually are willing to take some person’s money in order to come in and tell the jury why this person’s health has value, that they’ll see everything that’s there, not just what’s not there any longer.” And with that he shook his head and I won’t bore you with a few other nice things that he said. But he changed, he saw the same set of facts, if you will, the same football game. But he now saw, he got up out of his seat and walked around and saw it from a different seat in the stadium. Instant replay has shown us all depending on where you’re sitting in the stadium, seeing the same set of facts can make all the difference as to what kind of truth you get out of that.

Scott Glovsky:

Tell us the story of that case.

Joey Low:

The story of the case was, the reason again it comes to me, is because the lawyer didn’t really want to try it. They were offering, I don’t know, about $450,000, $500,000. And the reason why, it’s a he said, she said case, which means that she’s got her version as plaintiff and the defendant has his version, there’s no other witnesses. And it’s a red light green light case, which means that depending on the car, the light determines who’s at fault. Problem is, there’s no proof of what the color the light was other than he said, she said. That’s it. And when you combine that with the fact that now you’re asking a jury for a lot of money as a result of what happened to her, instantly they’re going to assume, well you must be lying because you want a lot of money.

Those were some serious problems. But even more than that was again the age factor. Look, clearly if you can even prove that it’s not her fault, I mean, what are the real damages going to be? Sure, okay. Maybe she had a brain injury, mild traumatic brain injury, and sure, broke some bones in her hand, but she’s retired. She just sits at home anyway, who cares? And that’s what I decided to make the story about again, was it’s not about a car wreck case and it’s not about a broken hand or a mild traumatic brain injury. That’s an event that happened. The real story was about a woman who had come to this country because the one that she lived in wouldn’t give her or her family a chance to be able to eat three meals a day. Forget driving a car, having nice clothes, having functions. They struggled to see on a good day if they could actually have two meals. They didn’t really have to struggle cleaning the house because it had a dirt floor and let’s be honest, what are you really going to do with that?

But their village was alive with a lot of gossip and stories about this place, this land where the floors were made of shiny marble and that people were fat because they’d just eaten their sixth meal a day. They eat every two and a half hours thinking to lose weight by doing that. That they have nice clothes and they go to parties where people dance and play live instruments that can be amplified with electricity so that then you could feel them. I mean these were completely foreign concepts. She was able to come to this land legally, where she worked to get her citizenship. Where she didn’t speak the language, but she went to school at night to educate herself in English and then she went to school during the day to educate herself to be a nurse and she worked.

Then when she graduated she became a nurse and it was her decision early on that she just felt a special connection with serving others who couldn’t serve themselves. To be the kind of person where she would wash their feet, literally their feet at church, even though she had so much seniority and had done so much Bible teaching, if you will, at this point, that she’s the last person they’re having wash their feet. But it’s something she liked to do.

She cared for the sickest people that the hospitals had to offer and then there was a position that came open in the kitchen, which she really liked and she then would cook all the food for everybody in the hospital. Then also when she retired from that, wasn’t willing to stop working, decided to stay on as the janitor. Where again, she cleaned up all the garbage and cleaned up all the materials late at night after folks. And in service again with people, her sister, who she dearly loved, unfortunately lost her life to cancer and lost the struggle with breast cancer. Her sister had left behind a 13-year-old girl whose daddy wasn’t interested. So she took her in her house not thinking a thing of it.

What else would you do? She loves the girl and cared for her and took care of her, raised her up, gave her a great life. Go to all her cheerleading events, just showed up for her on everything. But was still a really good leader, mentor. Didn’t spoil her, never had to discipline her, but was very direct with what is a good way to look at something and maybe something requires some more thought. As the niece would testify, “My aunt was very good to me in a very direct way. I oftentimes wanted to do some of the things that young girls want to do and she’d never tell me no. She just helped me articulate the consequences that could come from bad decisions and then leave it to me to decide which. At that point, there’s really no decision but she had a different way. Very loving woman.”

We then talked about how now that she’d finally retired and saved all this money and had her house, what she was going to do, and her best friend told the jury about how she wanted to go back to where she was from and travel. She wanted to go to a few other countries where she learned through her studies, historical points that she thought were interesting and that she really connected with. She wanted to go to places where there’s certain kinds of live music that were born there. She was a historian, a hobbyist anthropologist, but she never got a chance to do that.

She’s old school and she pays all her bills by writing them out with the piece of paper that comes in the mail and the check, put it in the envelope, put a stamp and she doesn’t like leaving her mail out on the doorstep or the mailbox there. She was raised from her village that the only way to guarantee the mail is going to get sent is you got to take it to the post office because it’s safe there. So she literally gets in her car twice a day and drives to the post office.

But on this particular day it was the third trip. Now sometimes when you hear the saying, sometimes the third time is the lucky time. But this time it may prove to be something different. You see, her niece who she had bought a car for because her niece’s credit wasn’t good enough, she co-signed it. And on this particular day her niece tells her that she had missed the payment. It was still within the 10 day grace period. But she’d just go ahead and send it in at some point when she could. And she says, “No, I’ll tell you what I’m going to do. I don’t want this to ding your credit so I’m going to pay it for you and you just pay me when you can. So why don’t you give me the piece of paper,” which she did. And she wrote out a check herself for her niece, put it in the envelope, got in her car, drove to the post office, put it in the post office and was coming home and that’s when it all changed.

In that moment, as she’s waiting for that light to go from green to yellow to red, she was sitting in an intersection waiting to make a left hand turn. When she pulled out, it wasn’t safe to turn left because there were cars going the other way that were in the intersection. So you had to wait ‘til that time when the lights change, and you have a couple seconds to leave the intersection safely.

Unfortunately for her, when she did that, there was a guy who was supposed to be at work, had clocked in that he was at work, working at the hamburger stand. But he wanted to run a personal errand. Didn’t call and ask for permission. He was the manager, but he’s supposed to ask the regional manager if he can leave the store, which he’s not supposed to, and he didn’t. So he was on his way down to another place to pick up some court papers where he’d been served for not paying child support and was trying to hustle back. And when he came to that light that went from green to yellow to red, instead of putting on the brake and slowing down and coming to a stop, guess what he did? Right. And as he went to try and blow the light to see if he could make it, he didn’t. He T-boned her and caused her car to roll over and it crushed her hand and broke her hand and hit her head and gave her a mild traumatic brain injury.

And from that day forward, she has been a completely different personality because as you’ll learn and the jury learned, that when you get a mild traumatic brain injury, some people, it’ll change their personality depending on what part of the brain was injured. And it did in this case. It caused her to become very paranoid and afraid and a lot of anxiety. The way she would cope with that now is lock herself in the room and not come out. That changed her grandkids’ experience and their relationship, her niece’s experience, and her husband, everybody. She lost contact with her entire community, mostly her church, where that’s her community. Those are the people she loves and who love her. She’s like the walking wounded now. You wouldn’t know it to look at her and you’d just think she’s kind of odd when you talk to her. But there’s a lot of odd people. But there will be people here to tell you who’s missing in action and the impostor that’s wearing her clothes.

That’s the story that we told the jury and they got to hear about the things that she’d shown up for and done for others. When it came time to ask them to value what had been taken from her without her permission, which is important, that’s the value they came up with. Now, there was one fact that was a real problem that I would have liked to have known about before the trial started. And when you do these cases, which is basically try other people’s cases, one of the things you learn to ask for is the paper discovery or the paper evidence that comes from you asking questions. Because in those questions are usually questions about be specific about how that collision occurred. And you want to see what the lawyers representing your client had to say in the past because usually it’ll be relevant at trial. And if there’s a disconnect or a contradiction between the two, you need to know that to be well prepared.

I asked for that information and I got the answers that were given six months before trial. But what was not given to me or even told, is that the referring lawyer who I’d never met, he had answered the questions early on hoping for a quick settlement, didn’t get it. And what he’d said in there was that the light was the wrong color to have been if the defendant was going to be at fault. He said that the light was green for that defendant. So the case is over, there’s no liability. And I wasn’t aware of it. I had to learn about it in the trial.

Scott Glovsky:

Wow!

Joey Low:

Yeah, where they blew it up in a huge foam board. And when also asked, “please describe how it did happen,” and they write there are no facts to support how it happened. Clearly I have a much more elaborate story at that point. It looked kind of bad. Those answers are under oath and I didn’t even get a chance to ask her about it. I didn’t get a chance to deal with it in voir dire or opening statement or on her direct exam. Didn’t like the way that felt. But the way I dealt with it was something that I came up with and I used in the closing.

And it was this: I told the jury that this case is a he said, she said case, but who had earned the right to be believed? What I did is I compared her life and what she did in service for others to his life and what he did in service to himself. And there was more specifics I haven’t gone through. I said, “Who’s earned the right to be believed?”

And then I asked them this, I guess if you will, question or scenario. I said, “Imagine you’re standing on the top of a waterfall. The kind you see people jump off of if you’re in Hawaii or exotic places like Thailand or so forth. And you look down, you see that tranquil pool down there and it’s a long ways down. It’s going to be a good jump. But you’ve seen people do it on your walk up. You just didn’t see whether they hit the bottom and just saw some people walking up there. And when you get up there, you look over and you’re trying to figure out, do you jump? If you look down and you see the defendant and he’s in the tranquil pool and water’s about chest deep on him and he looks up at you and you look down at him, you say, ‘Hey, is it safe to jump?’ And he looks up at you and he says with a crooked smile on his face, ‘Oh yeah, you bet it’s safe.’ I want to see jump.”

“You look down there again and you see Mrs. McFoy,” that’s the plaintiff, Norma McFoy. You say, “Norma, do I jump?” And she says, ‘Honey, I wouldn’t if I were you. A few folks have tried it and they’re not here anymore and nobody’s done it here today. I’m down here in the water and I’m telling you because I’ve been there. It’s not deep enough.’ In that moment with everything you know about him, the defendant and everything you know about her, what do you do? Do you jump? Same answer to that question should be the same one you answer when you go back and you fill out that verdict form about who’s negligent and who’s earned the right to be believed.”

And that was the story I told them. When asked afterwards when the verdict came out for the $11.1 million, of course the defense lawyer was incredulous, couldn’t believe it, was angry. And that’s okay, I’m okay with that. He asked, and one of the jurors says, “As soon as Mr. Low told us the story,” they called it the story of the waterfall, “I knew right away.” Now, he didn’t speak for everybody. And I’m not going to tell you that the other 11 felt the same way, but the ones that were standing there when he said that, which was about another four or five jurors right there. There were 9 total who stayed after to talk, heard him say it and some of them shook their head. No one said, Oh yeah, we all agree with the story.

But I believe it was helpful in being able to categorize and properly give value to what is important in this case. And that is people are a lot more than their age or a lot more than what little time they may have left. And the way they have lived their lives is best demonstrated by showing the commitment they have demonstrated towards others. And because I spent a lot of time focusing on that, none of which was in any of the depos. That stuff’s not in there. But by consciously going out and looking for it and not quitting until I’ve talked to enough people where I have at least three good examples of that and people who can tell the story credibly.

That’s how you get uncommon numbers for very difficult cases in jurisdictions where after my closing, before the verdict, the court reporter came up and said, “Mr. Low,” she said she talked to the court clerk, “we think you did a nice job with the case, but they’re just not going to give you that kind of money.” I believe I asked the jury for $23, $24 million. “They’re just not going to give you that kind of money. I mean, this jurisdiction, that case, you’re going to get somewhere between, I don’t know, low end $750,000. Maybe if you’re lucky, $2 million. It’s not you, it’s just that’s these juries. Just they’re really stingy here.” I would’ve been fine with that. Norma McFoy would have been fine with that, but the jury wasn’t.

Scott Glovsky:

Were you surprised?

Joey Low:

No. No, I wasn’t surprised. I’m surprised what the court reporter said, not because it’s wasn’t true. It was true. I’m just surprised that she has probably seen more trial lawyers than any of us have. It’s a long-time court reporter and that’s been her experience as a result, that it just doesn’t happen. And isn’t that sad? That’s what surprises me because the information’s out there.

Scott Glovsky:

Is it true that you reverse roles with people every day?

Joey Low:

Yes. Oh, that’s true. I was lecturing at a lawyer conference in Florida the week before last. They had me do a couple of days for them. One of the questions was, well, we just saw you do a voir dire with no preparation. How do we do it like that? And I said, “Well, you didn’t see the preparation.” They go, “Where did you have time to do it?” And I said, “Well, I do it every single day.” And they go, “What do you mean?” I go, “Well, one of the things I’m trying to show you is if you’re going to ask a juror a question, you have to be willing to really be interested in the answer or don’t ask it.”

And being interested in the answer means that you’re quiet and you’re tuned in and you’re present while they’re giving you the answer. You’re not just being quiet while you’re waiting to respond or cut them off or think about the next thing you’re going to do while they’re talking. You’re actually just sitting there and you’re reversing roles with them. And you’re asking yourself, “Now that I’m them, how does this make me feel to say these words?”

I practice that every day, all day with everybody I meet. So when I go to the grocery store and the person asks me how I’m doing as they’re reaching for my groceries out of the basket and putting them across the scanner, I actually stop. I clear my mind and I ask myself, “Well, how am I feeling?” When it comes to me, I put a voice to it and I’ll give them an answer.

And then when I ask them the same question, I don’t do anything else. I don’t take the card out of my wallet. I don’t reach for another item. I don’t look at the magazines that they’re trying to get you to buy. I sit there and I tune in 100% with what it is they’re saying and how they’re feeling. And if it strikes me right, I reflective listen, which means I’ll say based on what I hear you saying, I think you’re probably feeling this. And it’s amazing what comes out of that. You get instant connections. You get people who feel listened to and feel cared about and as a result they’re happy to share with you and now they’re happy to have a relationship with you.

You have to do that every single day because for some strange reason, it’s not a natural act. It should be. But the society has changed a lot from 50 years ago when you all lived in small towns and gossip was the way the news got passed. And everybody knew what everybody was doing. Those days are gone. When was the last time you even met your next door neighbor? I mean, people actually live on your block. We don’t communicate all that well. We sure as hell don’t tell people how we’re feeling, because no one really cares to hear it. So yeah, I do it every day.

Scott Glovsky:

Joey, I want to thank you first on a personal level. I followed you around at the Trial Lawyers College to learn from you for years and I’ve learned a tremendous amount from you. I want to thank you for your help in personal psychodramas, teaching me things that at times I wasn’t ready to learn. And thank you for sharing with all of us these stories. I look forward to learning more and being around you and learning from you and helping my clients through the gifts that you’ve given and passing them on. Thank you brother.

Joey Low:

You’re very welcome and let’s get to it. We got a lot of work to do, so thank you. Thank you for having me.

Scott Glovsky:

Thank you.

Thank you for joining us today for Trial Lawyer Talk. If you liked the show, I’d really appreciate it if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s S-C-O-T-T-G-L-O-V-S-K-Y dot com and I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials: A Primer for Lawyers, that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.

The post Trial Lawyer Talk, Episode 59, with Joey Low Part 2 appeared first on Law Offices of Scott Glovsky.

 

Joseph H. Low, attorney4people.com, has a national reputation for his expertise in trial law. He has conducted trials all over the country in Federal, State and Military Courts. He focuses his attention in representing people who have been bullied by corporations and the government. Areas of his trial work have seen him with victories for his clients including personal injury, medical malpractice, business litigation, civil rights violations and criminal defense.

The murder Joey Low’s client was accused of occurred during his third tour in some of the most dangerous battle areas in Iraq. He was not guilty and taking a plea deal meant he would serve several years in prison and be required to testify against those who hadn’t yet taken plea deals. He was not willing to testify against his fellow servicemen.

Trying this case was a huge risk. Joey was informed by renown trial lawyers that it was not safe to be on the case, not safe to travel to Iraq, and the client would be brutalized by others – including the 6 marines who had already taken plea deals and would testify against him. The client also faced a potential lifetime behind bars or even execution.

Joey said as he worked on this case and reenacted the crime in Iraq, “a lot of people suffered and went through a lot of pain to make this right. It is easy to do the right thing, and it is hard to know what the right thing to do is.” “I’m grateful for the experience even though it was terrifying.”

Transcript of Episode 58, with Joey Low, Part 1

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky, and today we have a doozy of a story. Joey Low is with us, and Joey is one of the most spectacular trial lawyers in the country. He proceeds time and again to win the unwinnable cases. He’s got an amazing ability to tap into other people’s feelings and to connect with other people. Every time I sit down with Joey, I learn, and I’ve been doing that for many years.

I’m very pleased that he’s here today to share with us one of his amazing stories, and this story takes us to Joey standing up to power, standing up to General Mattis who later became Secretary of Defense, standing up to the prosecution of a murder case, and Joey traveling into a war zone to be able to recreate the events that happened in his case so he could get a sense of the sights, and the sounds, and the smells, and what it looked like and the feeling. And he wraps that into really a wonderful story of how he won his case. So, let’s get started.

I’m very happy to be sitting with truly one of the best trial lawyers in the country. Joey Low is a phenomenal lawyer who has been teaching great trial lawyers how to try cases for many, many years. Joey does criminal cases and civil cases, and he’s truly the only lawyer I know that goes around the country, tries cases, and wins the unwinnable cases, and wins big. I’m very happy that Joey’s taken the time to share with us some stories here today. Joey, thanks for being with us.

Joey Low:

Thank you for having me, Scott. That was a really nice thing you said. It makes me feel a little unworthy. I know I’m supposed to say this to be artificially humble, but, what? I know a lot of really good trial lawyers, and I never thought I was one of them, but anyway. So, thank you for having me.

Scott Glovsky:

Can you share with us the story of a case that had a profound impact on you?

Joey Low:

Yes, I can. There are several that come to mind. Yeah. But there is one that has come to mind very recently. I have a friend who recently graduated from law school. I went to his graduation this last May. When I first met this friend, it was 13 years ago, and I met him in a jail cell where he was waiting to stand trial for capital murder. It was a death penalty case. He and seven other Marines and one corpsman were accused of killing an Iraqi civilian, murdering him in the middle of the night.

So, the reason why this comes to mind is that once I started working the case I had a number of people on the team working with me, some of which are military lawyers because this is a military case. The facts involved, or at least accused, were that the squad, the Marine Corps squad, had been dropped off behind enemy lines in a place called Hamdaniya in 2006, and they had gone out and were supposed to be laying in waiting for insurgents to plant IEDs in the middle of the night, and then deal with them as a result.

Later that night, around 3:30 in the morning, there was a call made back to the rear to a unit called the QRF, which is the quick reaction force. The idea is, any time you engage or meet some contact, as they called it, or you’d get in a fire fight with the enemy, you’d call the QRF and then you’d get reinforced. They’re in the back waiting to … like being on call to come help you out. That call comes in, and they go out there. When they get there, they find a dead Iraqi in an old IED hole, and lying next to him is an AK-47 and a shovel.

As the QRF is looking at it and they’re taking reports and so forth, one of those guys looks over at the corpsman, and the corpsman just got kind of an odd look on his face. What unravels from there is that eventually NCIS gets involved. That’s the National Criminal Investigative Service. It’s a military criminal investigative service. They start conducting interviews, and make accusations, and the corpsman decides he doesn’t want to do this anymore, and says that the other seven Marines had drug this guy out of his house in the middle of the night, zip tied his hands behind his back, and drug him to this hole. Walked back about 100 meters, then shot him and killed him. Went back to his body, cut the zip ties off, laid the AK-47 next to him, and the shovel that they had brought with them, to make it look like he was digging an IED hole, because the rules of engagement at that time said that they could kill anybody who was actively involved in planting an IED.

Well, what the government sought to prove as to why they would pick this person was that they just claimed that the Marines wanted to target somebody in this little village or hamlet to intimidate them. That’s why these men were charged with capital murder and why they were going to go to trial. At that point in time, I’m told … I can’t confirm whether it’s true or not, that I had the record for winning a criminal case with the most rats. And, yes, I did say rats. The most rats that testified against somebody, which was three. Normally the convention is that if you have one rat in a case, you run down to the prosecutor’s office and you beg for a deal. If you have two rats in a case, you take whatever they give you, and you thank them for it. If you have three rats in a case, well, you don’t even take the case. Clearly, you give it to the public defender, because there’s no case, et cetera. Well, I had won a case with that many, despite what they had to say.

But in this case, one of the accused of the eight ran down and cut a deal right away. The government put a lot of pressure on her. As soon as the first one went, boy, they all started running down to the office, because each deal got worse. The first guy got 12 months. The second guy got 18 months. The third guy got … And the number keeps going. Also part of the deals that they were cutting is not only did you have to agree to it and do some time, but you had to testify against anybody else left standing.

So, they get to my guy, and the general, it’s General Mattis at the time, who used to be … he was Secretary of Defense. He wants to talk to me. I go down there and see him, and he says, “All right, here’s the deal,” and on, and on, and on. I say to him, “Look …” I think the deal at the time was eight years. My guy was number six out of eight. There’s three left that hadn’t taken a deal yet. I said to the general, “My guy will take what’s coming to him, but he will not testify against the other two.” The other six or the other five don’t matter because they already cut a deal. He was like, “Well, that’s not acceptable. There’s no exceptions. Your guy’s going to testify against the other two. Take it or leave it.”

I said, “Well, my guy’s been real clear he’s not interested in burying anybody else in a concrete tomb to benefit himself. That’s not how he’s built, and that’s not how he was trained, and that’s not what he’s going to do.” General Mattis, sitting closer to me than you are right now, about a foot away, a foot and a half away, leans in and says, “Son, do you really think you’re doing the right thing for your client?” I leaned in a little closer, and I said, “You know what, general? I think I’m doing the best possible thing I can for your Marine. How about you? You have the power to make this all go away. And all you have to do is say, ‘I can respect why you don’t want to rat on somebody else, and I respect you will take your punishment.’ But for some reasons that’s not good enough for you, is it?”

He sat back, and he gave me that look like, “I hate your guts,” but he was trying not to smile at the same time. I know what that means. So, we went to trial, and I was assigned as a lawyer on the case-

Scott Glovsky:

Wait. Let me back up.

Joey Low:

Yes, go ahead.

Scott Glovsky:

I understand that when you got the case you did a little travel to the scene.

Joey Low:

Yes.

Scott Glovsky:

Tell us about that.

Joey Low:

You want me to talk about it? All right. So, if I have had any successes in the past, it is because I’m one of those unusual nut jobs where I actually want to feel everything my client felt, and I want to feel everything that the witnesses involved in the case felt. So, what I do is I go, and I’ve always gone, to the scene of every case that I’ve tried, and I’ve done a reenactment in the location itself. Not only do I do a reenactment, but I play all the roles of the characters, or even inanimate objects, that are involved. Not only do I play all the roles, but I have somebody force me through questioning to go down to the very bottom layers of emotional content that are associated with whatever action’s going on so that I can understand not only what happened, but also how it happened, but mostly why it happened, and what I was feeling.

Well, in this particular case, unfortunately, the whole accusation happened not in the U.S. It happened in Iraq during a time of war and in a combat zone. I’m like, well, I’m not doing that. I’m out of the Marine Corps now. I’m happy to be out. But as I began to work the case and the enormous amount of information, and an even larger amount of lack of information, it just dawned on me. Just a voice in my head says, “If this case goes badly and this kid gets convicted, how are you going to feel that it’s the first one that you didn’t do a reenactment on? Are you going to be okay with that?” Well, unfortunately the answer in my head was no, I won’t be able to live with myself.

So, I made a decision that I had to do that, but that wasn’t easy. Logistically, I had to file a motion with the Marine Corps judge saying I want to go over there. That created a huge shit storm, as you can imagine. The government was against it, but the judge was persuaded and said okay. That put into action a lot of logistics. But essentially, I had to get into training again. Then I got issued gear, and then I got embedded with the Marines. Then I got flown over there, and then I got in their vehicles. They drove me out to where they were going to conduct an interview of a shake that they needed for some other mission.

Once that was done, they said, “Okay, well, this is it.” I said, “Well, this is not where it happened. This is not even close.” And they said, “Well, this is as far as we’re willing to go.” I’m like, “What are you talking about?” They said, “We’re not willing to drive to where it happened because that’s an area of operation that’s no longer controlled. We’re not patrolling it any longer. It’s enemy territory, and it’s violent,” which is the whole part of the story in the case anyway. Of course it’s violent. They were the same.

So, there in the presence was an Army lieutenant colonel. I’ll never forget this guy’s name. Never met him before, never heard of him, never seen him since, but his name was Pinkerton. That has a little historical, similar to … given our stagecoaches. But it is now his area of operation, this Hamdaniya area, but he’s not patrolling it either. I tell him, I said, “Look, man, I need to get out there.” And he’s like, “I can’t help you. I’m not going. It’s too violent, and we’re going to get shot at, and I’m not doing it.”

So, in that moment I’ve already spent I don’t know how much money, and time, and days, and I’ve been in the country now 10 days just to get where I’m at right now. You don’t just show up, get in a cab, and go. You have to go from military transport, to air transport, from base to base. You have to hopscotch. And they don’t have a special flight for you. You wait your turn. And you don’t make a reservation. You sit in a waiting room for days sometimes. So I finally got here, and I’m like, I better come up with something, otherwise this is over.

So I told him the story. I told him the story of a guy who had been on his third deployment, and on his first one he was an OIF-1, which was the most violent part of the Gulf War, with this Desert Eagle operation. He had seen a lot of really ugly, bad combat, but somehow survived it, went back to training, and came back for his second round and got the next worst, or if not even far worse encounters, and that was for the Battle for Fallujah where President Bush ordered all these troops to go in and root out the insurgents who had stockpiled and entrenched themselves in the city of Fallujah anticipating the Marines coming in, in retaliation for the execution of those four Navy SEALs who were working as contractors, and they hung them from the bridge, and their charred torsos are swinging back on ropes.

I said, this kid, during that battle, was upset that people were not taking their turns kicking in doors, which is the job that nobody wanted. He felt bad because a couple of guys in the squad were taking everyone else’s turn because that’s just the way they are. One of them was his friend, and he felt badly that his friend was now going to do it for the third time in a row. Because it basically is like playing Russian roulette. One of the times you kick the door in, there’s going to be somebody standing there and you’re going to get shot. That’s just how it goes.

So, his buddy went to do it again, and he said, “Refuse, I’m not going to let you do it. It’s not right.” And so he kicked the door in, and there was a man sitting there with a shotgun. The boy was the rabbit they saw in the street who ran into that door, and that’s why they ended up at that door chasing the boy, because they weren’t supposed to be there. It was bait. Kicked the door in, and that blast hit him in the chest with a shotgun about three, five feet away. It’s a kill-shot, you’re dead.

He survived it. It all went into his armor plating, they call it a SAPI plate, and his protective armor. But it did knock him down the stairs, broke some ribs. He got some shard in his face. He got wounded, but he didn’t die. I said, “I’m sure you’ve seen combat like that, too, Lieutenant Colonel, but this man is now languishing in a jail cell because the reason why he’s in there is because his buddies were ordered to go drag this guy out of a house, and to kill him because he is the one who’s been planting all the IEDs along the supply route between Baghdad and Fallujah. They were killing a lot of Marines, and they’d warned this guy to stop doing it, but he wouldn’t stop doing it. So they went out there to execute him, but my guy said he wouldn’t have anything to do with it because he didn’t believe in it.

But when his buddy behind enemy lines went in to kick in doors to find this guy, he just went in there with him to make sure he didn’t get shot by the people in the village. But he never shot the guy.” So I said, “That man’s going to spend the rest of his life in prison for caring a lot about somebody else, and actually more about that person than he did himself, which is exactly what he was trained to do. And now he’s being told as a result of him doing exactly what he swore he would do, and trained to do, which is protect somebody else, and he didn’t shoot the dead guy, he’s going to die in prison. He’ll never get an education, he won’t have a woman, he won’t have a child, he won’t have a family. I don’t know about you, but personally, I’d rather die than do that.”

He sat there and looked at me, and he put his head down and took his cover off, which means his hat, his Army hat, and ran his fingers through his short hair. Cussed a few times, got up, drank some more of his high-octane energy drink. Looked like about the third or fourth can. Sat back down, sat in his chair, crossed his legs, put his hat back on. He said words to the effect like, “You bastard. I’ll take you in there, but the first sign of trouble, we’re gone, and we’re running like hell. I’m not going in there to take these people on because I’m not equipped for it. We don’t know what we’re getting into.”

Then I said, “Colonel …” It’s more respectful to call a Lieutenant Colonel, Colonel. I said, “Colonel, trust me. If there’s some firing, shooting going on, I bet I leave you at least 20 yards behind as I’m the first one getting back in the vehicle.” He laughed, and he goes, “Hell no.” So anyway, this guy did what the Marines were not willing to do. He loaded me in his vehicle. He’s got his interpreter. He took me out and drove me all the way out there through these IED ridden roads, most of them dirt and gravel, through the hamlet. He got out of his vehicle, which he didn’t have to do, and he actually did more than he said he would do. He went with me to every single door on every single house. There was, I believe, 12 of them. He banged on every one of them and had the people come out, and he used his interpreter to find out all the information I was looking for, and I did my reenactment.

Now, what’s most interesting about that story is what I got from that, and it was this. It was a sound. In arriving out there, it was a sound. The sound I heard was this chorus of dogs barking some big, deep, heavy, slow barks. Some with those little Chihuahua-sounding barks, they’re fast and they’re sharp. And then everything in between. I didn’t think anything about it at the time, it was just a lot of dogs. But as I reflected upon it, and as the case was being worked and I was getting closer to trial, it dawned on me that that was a Baghdad burglar device, which means that they don’t have fancy in-house cable alarm systems that speak an electronic female voice that says system armed or disarmed, or front door open. What they have are dogs who will start barking when you’re 250 yards, 300 yards, 300 meters away, and all the way in. And they’re not happy to see you when you get there. They don’t attack you, but they’ve been barking for a while.

Okay. So what, right? One of the issues came down to the government trying to convince the jury that the man that had been executed was a poor, lonely, old goat farmer. That’s it, just some harmless old man, just living his life, raising goats. But because the trip that I had gone on, and the other things I’d done while I was there, I had learned, and discovered, and found files on this guy through old records in old, abandoned buildings that used to be the police departments and government buildings, that who he really was, was a demolitions expert from the Iran-Iraq War.

Why is that relevant? Well, it turns out that behind his house, in the field behind his house, out in the middle of nowhere, the government had found the largest weapons cache they had ever found that was not on a military base, an Iraqi military base. A weapons cache means someone had dug a big ditch in the dirt in a farmer’s field right behind his house, and put in a huge amount of guns, ammo, and shells, or if you will, large bombs. That’s what they were using to plant IEDs.

So I suppose it’s a coincidence that the one area between the main supply route for the Allied Forces from the west into Baghdad … It’s a single road, like driving from L.A. to Vegas. And along that route, you have this hamlet, this village, and it just so happens that one of the top bomb manufacturers from the previous war has a huge weapons cache sitting in a field behind his house, and this is where all these Marines are getting slaughtered as they drive by, and they get blown up. My point is, it wasn’t exactly as the government is trying to get the jury to believe. Until the government says, “Well, he had no idea about that weapons cache.” I’m like yeah, I don’t believe it. But remember, everything we do is about what you can prove, not about what you know. All of a sudden, it dawned on me. Those dogs.

So, I ask the NCIS agent who’s now on the stand … and NCIS, again, is National Criminal Investigative Service. They’re the people who did the investigation for the … They’re cops, if you will, and they work for the prosecutors and put the case together. So he’s on the stand and he’s saying all this stuff, and then all of a sudden it dawned on me. I said, “Hey, do you remember when you went there.” He goes, “Yes.” I said, “Do you remember those houses?” He goes, “Oh, yeah.” And I did it in a way to challenge him and pretend like he hadn’t actually been there so that he’ll offer more than I need him to. He’ll brag on how much he knew. I needed to do it that way so he’d volunteer a lot.

He goes, “Oh, I was definitely there.” And I said, “But you may not have seen all the …” “Oh, I saw all the houses.” “Well, maybe you didn’t get a chance to get close enough to …” “Oh, no. I definitely went into every one. I walked in.” I said, “Tell me, if you were there, and I’m sure you were, but since you were there, you must know the answer to the following question.” He goes, “What’s that?” I said, “What did you hear, if anything, before you got close to the homes, as you were driving close to them or walking?” He goes, “I don’t remember hearing anything.” “So, you’re sure you don’t remember hearing at least one dog, maybe two?” And he goes, “You know what, come to think of it, those dogs will light that place up. Boy, you even get slightly close, and man, they were howling, and growling, and barking. They had a lot of dogs out there running around.”

I said, “Yeah. How do you think that the people who dumped all those weapons into that hole, that cache, were able to do so and not have those dogs bark and tell the owner that you say didn’t know a thing about it?” And his face went blank. There was absolute quiet in the courtroom. Even the people who were writing or scribbling, and the sketch artist, everyone was like, “Holy shit.” Because what had happened is, we had told a story along the way, which I haven’t told you yet, that you wanted to believe, but it was always missing one fact. And every single time you’d make a little ground with it, they would have a counter-fact. Then you would have one to that, and you were watching like a good tennis match where the ball’s going back and forth across the court, and you know someone’s going to miss it. And whoever misses the ball is going to lose a point, and that’s going to be the end of it.

So that … Purposely, again, I’d told the story in a way where I was waiting for that to happen. I rolled my dice on this thing. I had no idea it was going to happen this way. But that’s really the last answer. When I did that, it was the first time in his entire testimony he had no comeback. Some of them weren’t that good, but this one, it just shut him down, almost like watching that portion of 8 Mile where the guy goes, and then the guy can’t respond and just chokes up. He chokes up, and just stood there and looked around, and then started looking at the jury. Then he couldn’t look at them anymore, and he looked at the ground.

As I’m standing there, your lawyer mind says, “Well, I better ask another question, or I better ridicule him, or I better do something.” And no, I just said you know what, I’m going to let it sit. And the silence got uncomfortable after a while. But I wasn’t going to be the first one to break it. Then finally, he looked up, he looked over at me, and I just stood there like I’m still waiting for the answer. He just said to himself and to everyone else who could hear, he goes, “Yeah, I’ll never forget those dogs.” It’s beautiful.

So the point of the story is that yeah, I got shot at a lot on that trip, and yeah, I got stopped. I was terrified. I had this guy who was driving this car that I was in, who would just be sitting on the road waiting sometimes because we had a minesweeper in front of us. He’s this big Swedish guy, even though he was in the Marine Corps. But anyway, he had these big lungs, and he yelled at the top of his lungs, “Boom!” Like he’s making a bomb sound. First couple of times, it’s like, well, I ain’t going to let him see me sweat because I’m a former Marine. I ain’t going to let these fools see that.

But by the eighth or ninth time he did it, I got … Man, I was like, “Man, you’re killing me with that.” That was his way of dealing with the stress because the whole time you’re out there, if you’re not getting shot at, and you had to hear it on the side of the car, or on the glass, you’re worried that this is … you’re going to get blown up. Why am I even bringing this whole story up to you? We went to trial on that … one of the-

Scott Glovsky:

Let me interrupt you for a second.

Joey Low:

Yeah.

Scott Glovsky:

Because I can see your tears.

Joey Low:

Mm-hmm.

Scott Glovsky:

If your tears could talk, what would they say?

Joey Low:

I don’t know. They would probably say … There was a lot of people who suffered and went through a lot of pain to make this right, and it’s hard to know what the right thing to do is. It’s easy to do the right thing. It’s hard to know what the right thing to do is. I guess that gets to the last part of this story, and that is, I had some military counsel assigned to the team as well so that we had both … It was a military court-martial, of course. We wanted to make sure we had everybody on the team that was best at their position. That’s part of putting a good team together. Can’t win the World Series if everybody on the team is a pitcher. You need the good first-baseman, shortstops, catchers. You get it. Anyway.

So, the military gave me their number one trial lawyer that they had at the time. He’d just won again for I don’t know what year in a row. But at one point while working a case up, he got my client alone without me and he convinced the client he needed to take a deal because there’s no defense, there’s no way to win. As a result, if he goes to trial, he’s going to lose and lose big. Because at one point … Again, it was capital murder. They’re going to execute him. Then another point, they were willing to offer a deal where if they did this and the other, he would get life without the possibility of parole, which means the best sentence he could get was buried alive in that prison. He’d never see the outside of it. And this is a young kid. He was 23 at the time.

So, the client breaks down, cries, the whole bit. He’s willing to take a deal, and I have to find out about it through another channel. Like, what? That’s my client. So I went and interviewed him, and he said, “Look, I just … It was a moment of weakness.” This, that, and the other thing. “I felt really bad, and the guy just terrified me.” So, I talked to the lawyer about it, and he was adamant about it. I said, “Look, if that’s what you believe, you’ve got to advise your client. I’ve got no problem with that. What I do have a problem with, though, is with you trying to execute and see it through without telling me. You’re not the lead lawyer on this.”

So, anyway, he decided he didn’t want to be part of the team anymore, and he got out of the Marine Corps, actually, and went to work in the civilian practice. But again, everyone was saying there is no defense, there’s no way to win, and you’re going to have six rats testifying in this trial who were also there. This is insanity to try this. It’s malpractice, is what I was told by a lawyer, to try the case. So yeah, there was a lot of pressure on there and I’m terrified. I remember going to the ranch and doing a psychodrama about it because I was just like, how am I going to try this case?

I got Gerry Spence, the Gerry Spence, telling me, “You’re an idiot. Why would you even take this case? I’m telling you, it’s not safe for you to be on it. It’s not safe to go to Iraq. There’s no triable issue here. You’re going to … That kid’s going to get brutalized.” So, after doing the psychodrama and getting real with it and how I felt, I came back and saw the client. I told him, “Look, man, you need to take the deal. You’ve got no defense. You’ve got all these rats who are going to testify against you.” He’s the only one, by the way, who didn’t give a statement to NCIS during the investigation. So they didn’t have any statement to use against him.

But he goes, “Look, I’m right, and I’m good, and I’m accepting my fate with my decisions.” But he said, “Let me ask you this.” I go, “What?” He goes, “Without all the things that everybody else has said, and all the other things that are at risk, if you cleared away all the debris, answer this question.” And I go, “What?” He goes, “Do you think you can win it?” So, after I got through the same kind of tears I’m having now, because I’m reliving the moment … While I’m sitting there in his cell by ourselves, and the smell, the horrible smell in those jails, and the yellow crud that somehow accumulates on the walls and they can’t scrub off, and the feel of that metal, and the way it rattles your body when the jail cell slams shut and you can just feel it vibrate through the floor and up through your feet, just the sheer disdain, and the ugly facial expressions that even the guards give you there … It’s truly banishment, which is … psychologists will actually tell you it’s the worst form of punishment there is, is banishment.

After I was able to take a minute and calm my mind and get my breath, I said to him, “Yeah, I think I can.” I couldn’t tell him why. I couldn’t tell him how. I had done four focus groups at that point and had some pretty good feedback, but that’s not real. Not in this kind of situation. Because if I guess wrong, he’s down for the count. That’s it. But I said, “Yeah, I think I can.” So, the reason why I went to a graduation last night, because after we went to trial and won, which we were the only ones who did out of the eight, he got sent back to a grunt unit after I had another meeting with General Mattis, which we’ll … That’s another discussion.

Got an honorable discharge. Got him … Stayed very close with me. He was over to my house for every holiday, all the functions, go on vacations with my family, got him into college, which he’d failed miserably at before. He never graduated high school. He got a GED. But he had a terrible history with academics. Worked on that step by step. Got into a community college first, then he ended up going to UC, California, after that. He graduated the top of his class in his focus, or his major. Got a job, did well with that. Decided he wanted to go to law school because he had some connection with me and his past. Went to the same law school I did.

At his graduation this last May, I met his wife. Sorry, I met his fiancée, who he is now getting married to. And a week ago, I got a picture of his new baby who had just been born. So, I get emotional about this story because there has been plenty of times in my life where, since I ran away from home, I was on my own, there’s plenty of people who do not, or will not, or don’t want to believe in you. Well, that’s fine. But occasionally, somebody comes into your life who makes all the difference. And the reason why they do is because they care. I can’t even really tell you that they did something specific, or they gave me something. Mostly, it’s because they are willing to be present, and they care about you, and they’d let you know, and they would be there for support emotionally, and they encourage you on past the limitations of your own insecurities. I never thought I’d ever be able to pay them back.

One of those people was Gerry Spence for me, and he said, “You’re not ever going to be able to pay me back. But like,” and you’ve heard this before, Scott, “but like we believe with the Native American tradition, a gift isn’t complete until you pass it on.” He says, “The only way you pay me back is you pay somebody else back, or pay it forward, or pass it on.” And so, again, the tears now are … If I never do anything else for the rest of my life, I will remember that moment on my deathbed because I got to see someone I care a lot about get to feel what it is when your own child melts on your bare-skinned chest right after they’ve been born. Just the feeling of that connection you have with a child is one of the five forms of love available on this planet, and in my opinion, is the purest one.

It’s such an honor to feel that I had some small part in him getting to experience that, because he was so deserving of that because of the way he took care of all his fellow Marines when he was in the service. I had a long line of people who testified at his trial, many which were famous in the Marine Corps and in the military for being heroes and doing incredibly heroic things in combat. They had a lot of rank, and they had enormous medals. They were legends. And these guys are on the stand testifying for my client, many of which were in tears, which you never see in the Marine Corps, because they said they were willing to do it because of how many times he was always willing to take care of everybody else, then put himself last. That’s a-

Scott Glovsky:

And he put his life in your hands, and trusted you despite everybody else abandoning him, if you will.

Joey Low:

You know, just hearing you say that, it just dawned on me. Maybe he changed my life more than I did his.

Scott Glovsky:

And maybe you were the father to him that you never had.

Joey Low:

Yeah, that feels true to me. I’d never thought of that, either. We’re not going to get into daddy issues today, but yeah, that’s absolutely, 100% … no one’s ever said that to me before. I’ve told this story before, but yeah, that I think you were right on. That feels absolutely true to me.

Scott Glovsky:

I can sense a lot of healing through your love for him.

Joey Low:

Yes. That healing didn’t happen right after the verdict, though. But you’re right.

Scott Glovsky:

Take that in.

Joey Low:

Yeah, no, you’re right. There has been a lot of healing that has gone on since that moment in time, and it’s the kind you cannot do overnight. But I had no idea how to put those two together, so I agree with you. Again, that’s the first time I’ve heard that. And I’ve paid people to tell me intelligent things about how to heal, and they haven’t said that. So I think you’re right. That feels true, and I’m grateful for the experience, even though it was terrifying. Terrifying. So, that’s the answer to your question about one of the cases that comes to mind.

Scott Glovsky:

You know, the feeling of heroism, the concept of heroism … as you were telling your story I could hear the chimes from the university bells down the street, and the chimes of freedom and chimes of justice. That just felt right.

Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate if you could give us a good review on iTunes, and I’d love to get your feedback. You can reach me at www.ScottGlovsky.com. That’s SCOTT, GLOVSKY, dot com. And I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials, A Primer for Lawyers. That’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials. Have a great week, and we’ll talk to you in the next episode.

The post Trial Lawyer Talk, Episode 58, with Joey Low, Part 1 appeared first on Law Offices of Scott Glovsky.

Transcript of Episode 57, with André Gauthier

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast where we have great lawyers telling great stories of cases that had a profound impact on them. Today, I’m very happy that we have André Gauthier from Louisiana. André is a real stud, an excellent trial lawyer, an excellent human being, and he’s got a heart as big as the state of Louisiana. He’s always interested in learning and growing and getting better despite the fact that he’s already absolutely phenomenal. So let’s get started.

I’m very happy to be sitting with a great trial lawyer and a great man and a good friend, André Gauthier from Gonzales, Louisiana. André, thanks so much for being with us.

André Gauthier:

Well, thanks for having me and saying such nice, kind words about me. I really appreciate that.

Scott Glovsky:

Can you share with us a story of a case that had a profound impact on you?

André Gauthier:

Yeah, I would think that a case that had a profound impact on me, and I know you will probably be asking me in this conversation why, but I’d represented a kid with my law partner, Jody Amedee. His name was Tony. Tony was in a facility in Lake Charles, Louisiana. Tony was 39 years old in chronological years, but he had the mental aptitude of a four-year-old. The facility killed Tony.

Scott Glovsky:

Share with us how.

André Gauthier:

What they did was they took Tony and they had sent Tony home for the weekend and Tony was the love of his mother’s life. He had many brothers and sisters and I remember when I went into their home, all of the brothers and sisters were … this little modest home, all of their pictures were on the wall. And up at the top, the biggest one up at the top was Tony. And Tony when he was four years old, he suffered encephalitis and it damaged his brain. He stayed at four years old and they put him in this facility.

And so he had went home. He was going home for the weekend and he was like a toddler. He was excited to be going home and he got home and his mother said, “Well Tony, you don’t look well.” He goes, “Mama, I don’t feel good.” So Mama says, “I think we better take you back to the facility.”

And she brought him back to the facility and when she returned there, she said, “I cannot believe that you let me take him home like this.” They said, “Well, what are you talking about ma’am? He was fine when he left here.” She said, “Well, he’s sick and he needs to be taken care of.” They told mom that they would get Tony some attention, medical attention.

The next thing that happened was mom was lying in bed one night and she got a phone call and they said, “You need to come to the emergency room, immediately.” And when mom got to the emergency room, Tony was laying in a bed and he was not conscious. They had all kinds of tubes and things stuck into him and they were helping him breathe and she said, “What’s the matter?” And they said, “He’s drowning.” She said, “What do you mean he’s drowning?”

His lungs had over four liters of fluid. Over 14 days he gained 41 pounds. His lungs were so full of fluid that Tony’s heart was jammed up against the left side of his rib cage. You could see it on the x-rays.

When we asked, “How did he get this way?” They said, “He was fine up until about 15 minutes before we took him to the hospital.” And I knew that couldn’t be true. And then it just got worse.

Doctored medical records. Fabricated medical records. Backdated documents. Lies upon lies. As we investigated that incident, I could see in the medical records over the years where he had been burnt with cigarettes. They wouldn’t put his protective helmet on, had 9 stitches here, 7 stitches here, 15 stitches here. Just stitch after stitch in his head. I’m like, “Why wouldn’t you make him wear the helmet like the doctor said? They say, “Well we made him wear his helmet.”

Just lie after lie. And to do this to someone who is so vulnerable, so innocent, so beautiful in the eyes of so many people, and to treat him like that, it’s left some type of scar on me.

Scott Glovsky:

Where are you in this case? Because I can hear the pain of André.

André Gauthier:

Well it brings back a feeling that I get often. It’s a vibration inside of me. It’s a sickness that’s coupled with an anxiety. It’s a sick feeling in the stomach. An anxiety, a chaos in the chest. And I know that when I feel that it’s something that I accept and it’s just fuel and drives me very, very hard.

Scott Glovsky:

Where does that come from in your past?

André Gauthier:

I think it comes from when, although I was a big kid, I never could mature enough to sort of control my body, so to speak. In other words, I was just a big clumsy kid. My body was always too big for me when I was a kid and I was never a real good athlete. I had people call me clumsy and things like that. I would say that, that just resonates with me with the way that he was treated. Maybe he was treated less than because of his inabilities.

Scott Glovsky:

So if your feelings could talk right now, what would they say?

André Gauthier:

If my feelings could talk right now, I would say most predominantly just sadness, a loneliness, an emptiness, a helplessness, maybe.

I think about him in this moment, and they were trying to substantiate how extraordinary the care was. And I get this orderly and the orderly tells me that when they noticed 15 or so minutes before they brought him to the hospital, which he was perfectly fine before then. I asked him, I said, “Sir, what did you do about it? He says, “Well, Tony was lying in the bed and I got up in his bed with him and laid with him and consoled him.” And to me, this orderly was probably a 38 year old male. And just considering the things that I was seeing in the medical records about the way this facility was run, I’m like, “What in the hell is an orderly doing spooning dying Tony in his bed?” And it just made me sick. That image. Absolutely disgusting.

Scott Glovsky:

And what did you do with that that feeling?

André Gauthier:

That feeling, it morphs into just an internal vibration. It’s a vibration that is used. I’ve always used it. I’ve always felt it. And it’s just a fuel. It’s just a hard driving. I believe that there are, there are chemical associations with it. I think it is a form of the production of adrenaline in the body. So it’s a chemical and the chemical fuels me and drives me such that in my mind it is just a relentless pursuit of getting down to the bottom of it.

Scott Glovsky:

So you’re in this story and you’ve discovered this horrific pain and these lies that you’re facing. What happens next?

André Gauthier:

What do you mean what happens next?

Scott Glovsky:

In your work on the case? It sounds like you’re in depositions and being lied to. Where did it go?

André Gauthier:

Yeah, so what I want to do is I want to relive as much as I can about the case in order to understand it. I want to become Tony. I want to become mom. I want to be the orderly. I want to be the fluid in his lungs. I want to be able to visualize the, I think they called it a mediastinal shift, which happens when they try and remove that much fluid. When you remove the fluid, you either let the person drown or you just punch a hole in the side of their chest cavity and you drain the fluid, but it results in mediastinal, I think is the word that they used. It’s been years, but it’s a shift and that shift will kill you.

When they punched the hole in Tony, the fluid hit the ceiling. When they punched him in the side of his chest cavity, there was so much pressure when they tried to put the tube in, the fluid squirted onto the ceiling of the hospital room. So, I want to be able to visualize that. I want to be able to see it. I want to be the orderly. I want to be the scalpel that cuts into his chest.

We use our psychodramatic techniques to help us get there. And it gives me a better understanding. It allows me to see it, and when I see it, I can begin to try and describe what I’m seeing so that I can use words to help people understand what I saw and experienced.

Scott Glovsky:

And it sounds like he passed away.

André Gauthier:

Yeah, he died the night that he was brought into the hospital. He sure did.

Scott Glovsky:

So how do you deal with the pain that comes from the caring and the connection to Tony and his family?

André Gauthier:

You know, I don’t know if I ever specifically dealt with that pain of what I experienced in that case. I’ve been more consumed with dealing with the pains that I’ve suffered over my personal life and trying to deal with those pains. I’ve found that the pains that I’ve suffered as a child have impacted me far more than the pain that I may see in a case like this. I’m not really sure how to answer that question except to tell you that the effect of the case on me was just to … I’m not quite sure how to answer this. The pain, the pain that I felt was … it was the pain of the way human beings would treat another human being and then lie about it and fabricate to cover it up. And that hurt me but I think that pain came out in anger.

And so I was able to not just go in front of a jury and just begin to vomit anger on them, but I think that during the trial, the jury understood the anger. As time proceeded, they could see the anger. I believe that through that process, that was probably the process of the trial, was probably a cathartic thing for me. To see a jury understand and be able to relate and take care of my people. I think that heals me and brings me some bit of closure.

Scott Glovsky:

Thank you so much for sharing your story with us, because that’s inspiring. Seeing your connection to your client and your dedication to learning the story and your caring, is really a role model for all of us. Thank you very, very, very much.

André Gauthier:

Well, thank you so much for having me here today. I’ve never been a part of a podcast. I’ll watch God Friended Me and it involves a podcast and I love the series. So it’s kind of interesting to be here talking into a mic like God Friended Me. But I appreciate you having me today. It’s kind of strange to be here and having someone asked me about my case because there’s a part of me that’s like, “Should I even be talking about my case? Should I do this?”

I mean, is it against what I’m trying to do in my personal life? And that’s not to be braggadocious and that sort of thing. I just appreciate you being interested in me. You’ve always showed an interest to me. One of my first psychodramas with you had a profound impact. It was a profound impact. It brought about an anxiety producing moment where I shut down and I’ll never forget you and I appreciate you for it.

Scott Glovsky:

Well, right back at you. I love you brother. And I also want to share with you and with our listeners what you shared with me a few minutes ago. That you’re devoted to being in service to other people and through this interview you are being in service and helping lawyers around the country become better lawyers and therefore help their clients. So thank you.

André Gauthier:

Yeah, I want to be in service. I know that being in service is being in service, but really it’s a selfish motive. Because I know that one of the ways I can keep myself sober and straight and in between the ditches is if I’m in service for other people. It actually helps keep me grounded. So I appreciate it. I appreciate your interest and I love you so much.

Scott Glovsky:

I love you too.

André Gauthier:

Thank you.

Scott Glovsky:

Thank you. What a what a wonderful afternoon I’ve just spent and we’ve all spent. Thank you.

Thank you for joining us today for Trial Lawyer Talk. If you liked the show, I’d really appreciate if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s S-C-O-T-T, G-L-O-V-S-K-Y.com and I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials: A Primer for Lawyers. That’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.

The post Trial Lawyer Talk, Episode 57, with André Gauthier appeared first on Law Offices of Scott Glovsky.