Trial Lawyer Talk Podcast

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Trial Lawyer Talk, Episode 67, with Cliff Atkinson Jan 07, 2022

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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…

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Trial Lawyer Talk, Episode 66, with Jim Leach Oct 06, 2021

Show notes

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 oth…

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Trial Lawyer Talk, Episode 65, with Eric Fong Aug 05, 2021

Show notes

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, the…

Full show notes at the publisher

Trial Lawyer Talk, Episode 63, with Genie Harrison Jul 11, 2020

Show notes

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.

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Trial Lawyer Talk, Episode 62, with Don Clarkson Jun 05, 2020

Show notes

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.”

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Trial Lawyer Talk, Episode 61, with Marj Russell Apr 23, 2020

Show notes

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 alcoh…

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Trial Lawyer Talk, Episode 60, with Laura O’Sullivan Mar 13, 2020

Show notes

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…

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Trial Lawyer Talk, Episode 59, with Joey Low Part 2 Jan 14, 2020

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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…

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Trial Lawyer Talk, Episode 58, with Joey Low, Part 1 Dec 23, 2019

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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 peop…

Full show notes at the publisher

Trial Lawyer Talk, Episode 57, with André Gauthier Nov 14, 2019

Show notes

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.

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