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James Brosnahan, Part II · Coopers' Code

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Howdy and welcome to the show. Cooper's code examines a legal
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issue and hits the highlights. So we all achieved the best
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results for our clients. I'm Miles Cooper, and welcome to
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Part 2 of Jim Brosnan. Jim, a while back in our
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conversation I said there were two avenues that I want to go
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down. When you talked about your first
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case and it being a death penalty murder case, I thought
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of that case. I also thought of another case
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and this involves the born innocent trial.
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And the reason I bring these cases up are these are cases
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where it is evident that you want to do the best you can for
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your client, whether it's the people or the Hollywood
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producers who created Born Innocent.
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And at the same time, the person on the other side of that V is a
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human being. And the cognitive challenges
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that come with taking on those situations, How did you balance
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those situations? I think that's very well put
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because since my desire is trial, any trial, you could have
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some listeners to say, well, he doesn't stand for anything And
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as far as trials of my God, what is he doing?
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And I was trial counsel and we had. 1st Amendment Council from
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New York. The leading free speech lawyer
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in the country. Basically Floyd Abrams.
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And here's what happened. The networker, I don't need to
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mention their name, ran a movie. The movie tells the story about
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a young teenage girl who didn't commit a crime but ran away from
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home. And she's put in a juvenile
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institution where there are very tough young ladies who have
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committed crimes. There's a shower scene.
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She's in the shower. She is raped.
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It's pretty close to showing it, but there's a little bit of a
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suggestion as to exactly what happened.
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Not a little bit. It's clear what happened to her.
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She's violated 3 days later. And Baker Beach in San
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Francisco, a group of teenage Tufts perform a very similar
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attack on a young girl. No names on any of this.
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And I was teaching in Colorado, and the general counsel called
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me and asked if he could come out.
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I thought. Wow.
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This is, this must be something. And he told me about the case
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and asked me if I would do it. I said I would, and we did.
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And the stories in the book I had handled.
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This wasn't accidental. I'd been handling First
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Amendment cases since my days at Cooper, White and Cooper and
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then at Morrison Forrester. I probably handled let's say 30.
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Or maybe even 41st amendment cases for newspapers, magazines
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and all of that. I love that issue.
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So that was the general counsel knew of my background in the and
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then I had lectured and I had written law review articles on
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the 1st Amendment. It's one of my great interests.
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I'm about to read a book about Justice Holmes and and other US
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Supreme Court. And how he changed his First
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Amendment approach. So that's what we did and it's
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in the book. The question that I was aiming
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at, at the risk of being too personal or too invasive.
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And I'll I'll use an example from my own background.
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When shortly after our first child was born, our office and
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at that time I was working for Ron Ruta with a woman named
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named Cynthia Mcguinn, we ended up getting a case which was a
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trundle bed death. It was a three-year old who had
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been put up to bed for a nap and the trundle bed was either a
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like a big drawer or a spot for a mattress.
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And they had left it as a drawer.
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And the three-year old had put some brats in there for her hair
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and it gotten out of bed and I tried to get them out and had
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ended up positionally asphyxiated as a result of the
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design of the trundle bed. And the parents found her blew
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in in response in 45 minutes later when they went up to check
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on her. I couldn't work on that case and
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I asked to be removed from that case because I couldn't talk
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about that case without getting choked up.
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And I wouldn't have had that problem before I had a child.
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And what I was driving at when I was asking about the born
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innocent trial was obviously what happened to the the young
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girl at Baker Beach was terrible and you had clients who you
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represented been represented successfully.
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And in the other case, the capital murder case, they didn't
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put the boys to death, but they're juveniles who now might
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still be in prison. Yes, those are decisions that a
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lawyer makes in terms of taking on a case and they have impact.
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And my question for you is how have you balanced that impact?
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Do these cases ever come back to you?
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Well, I balanced it this way I think.
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And if a case goes to trial, there ought to be, and there
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usually is 2 strong arguments, one on either side, that as a
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lawyer and young ones in law school, they worry about this.
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But you're the lawyer, you're not the client.
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People in Northern Ireland confuse that terribly with
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lethal effect. But, and we do that here in the
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United States, so. A person corporation is entitled
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toward the fence. Now, lest you think that I am
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amoral in the extreme, I refuse to represent a gun manufacturer.
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That goes back to the Kennedys and their family, which they're
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they're also in the book. And my admiration for them and
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my father's admiration for them, my grandfather's admiration for
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them in in Boston. And it's a that's a long story.
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But my phone rang one day. The Giants were thinking about
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moving, and on the phone was the general counsel to a group in
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Tampa Bay. They were going to have a ball
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team. Would I represent?
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Them so that they could get the Giants and take them to Tampa
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somewhere in my determined hard to try any case I have some
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reservation. I said hell no I'm not kidding.
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I'm not gonna do that. It would be like you want to
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represent potches. Pilot I gave a talk in
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Washington DC and it's it was the subject.
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That is very close to my heart and I've given it a number of
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times and there have been times when I actually did what I was
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talking about. I used to say this in the firm
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to the corporate lawyers. I would say representing
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despised people is one of the great traditions of Morrison,
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Forrester and I'm only talking about the civil clients, Okay
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and so. I gave a speech in Washington to
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a group about representing despised people.
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It's what we do as part of being a lawyer, and I got a call the
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following Monday. He said my brother has been
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arrested for possessing child pornography.
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I said I'm not going to. I mean, we had kids at that
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point, you know, So I my answer to the question is what I.
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Sometimes. So young lawyers is it's OK if
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it's not your case, just what you said.
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If you're going to have a problem with it, you can't
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represent them. I think you made a comment about
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touching you as potentially A moral for taking all comers.
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Yeah. And the reason I asked the
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question is it's evident that you've got a high degree of
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morality and ethics in the cases that you take and the manner in
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which you've lived your life. And let me give you an example.
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While he may have been a despised individual, you chose
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to represent John Walker Lind at a time where my impression is it
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put you literally in the gun sights as well as your family.
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Yeah, that case is not in the book.
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John's name is not there and he asked that I not included.
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I respect that decision. However, there been cases.
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Where we got death threats, it's important for me to repeat.
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I'm a Irish extraction. You do not threaten an Irish
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American. It's a big tactical error.
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And this guy called one day and said his group was thinking
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about what to do about me. I said, is that right?
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I said, well, I have a great investigator.
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I'm really one of the best and he can find out where you are.
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And if he finds out where you are, I'll be there.
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And when I get there, you're not going to like it.
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Now, how serious are you? Because if you shoot at me, you
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better get me the first time. Well, that was the last time I
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heard from him. It's in my nature that I will
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not have anybody threaten my family or me.
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And that I think it is Irish. On the morality side of things,
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I owe a big debt to the Jesuits at Boston College from 1952 to
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56. It's not a religious thing with
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me, but it it is. I mean, to be basic about it.
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I've been spending my whole life trying to figure out what is
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trial lawyers supposed to do. What are we supposed to do now?
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Look at where we are. Oh, my.
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What am I supposed to do? And I think trial lawyers do
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that every day. All day I think my.
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Defense of trial lawyers is we're doing the best we can
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under the circumstances. I suspect, given the breadth of
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your practice and given the opportunities you now have to
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instruct people, either through Nita or through talks, that you
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have some wisdom that you would want to impart to the next
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generation of trial lawyers. I've been doing some writing and
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I'm giving some lectures. There's a couple of things.
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What I noticed in writing the book was that good writers are
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writing for the audience. That is what lawyers do.
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You have an audience. You may have a jury.
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You may have a judge. You may have an arbitrator.
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If you apply empathy to their problem, and you address your
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arguments to them, knowing as much as you can about them.
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That's what we do, is try to understand their problem.
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Imagine a case with, say, President Trump.
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Imagine being a juror. I actually brought with me one,
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one book, and there's another one.
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At one point in my in my life, I realized that jurors have
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written books about their experience.
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And I got to a jury. Woman is a book written by a
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juror. And so when I read that book, I
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understood their problem. You're trying to help them.
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You're a teacher. You have three points, and
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they're not legalese. There's three points.
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And here it is. So that's number one.
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Number two, in my class at Berkeley Law, which I taught for
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10 years. 40% of the students when asked, have some
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reservation about their voices from miles minor problem to
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serious problems. The same experience I've had
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teaching practicing lawyers. I think people would be amazed
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that a lawyer that's practiced 20 years has got reservations
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about their voice, why they don't teach.
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In most law schools, they don't teach a course on voice
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training. It's not that hard to do.
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I have a list of 6 qualities of the voice.
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We practice that the voice is crucial and it can be trained
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and you practice it well. Suppose you've been a lawyer for
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25 years. You still have to practice your
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voice. And what you do is you take
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something you'd like to read anyway, and you take maybe your
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telephone. You record it, you listen to it.
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What does that sound like? Very hard to understand your own
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voice. But maybe you speak too fast
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because you're in a hurry and you're going to do all this.
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Maybe your voice is kind of cranky.
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That mood thing in courtrooms is crucial.
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What mood are you? Conveying is that deliberate?
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Do you have control of your voice?
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And it's very rewarding. I've taught, I don't know maybe
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2000 law students and lawyers voice training one-on-one often
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sometimes in groups. The change is really but one
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thing. I discovered that there are a
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couple of professors in this area that are telling women
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that. You should lower your voice to
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be more authentic and sound like a man.
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No, absolutely not. Two reasons.
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Number one, you got to be yourself.
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That's important. But even more important,
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baritones don't change to be tenors.
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Bases don't decide. They all.
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They always wanted to be something else.
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Because this mechanism that I'm pointing to here is a very
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delicate thing. You have to be yourself, so
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develop your own style that you got to have a style.
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I thought you were going to say Reason #3 on women not part in
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their voice, was Elizabeth Holmes.
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Yeah, What happened to me? I became fixated by voices, and
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I would listen to jurors when they're answering a question.
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You know. Are you in favor of the death
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penalty? Well, not really.
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Whoa, time out. The sound of the voice
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witnesses. What are they conveying?
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The sound of the voice and clients.
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Where is this client right now based on what they just said,
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the sound of the voice. And if you look at American
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business on television, you'll hear some of the best voices
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around on the speed component. When I'm in a good cross exam, I
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start going so fast. And Cynthia Mcguinn taught me,
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if the court reporter is sweating and now court reporters
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have word per minute counters, you can go over and ask them how
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fast am I going? And if you're going over 120
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words per minute, yeah, you're going faster than a human brain
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can process. As evidence of I get to hang out
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with some of the great lawyers and like yourself and Cynthia,
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Cynthia Mcguinn is one of the best trial lawyers in the
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country as far as I'm concerned. And what's this all about?
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You got to have a voice that the jury wants to listen to.
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It's that simple. That makes a lot of sense going
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back to saying what is. So I want to touch a little bit
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on Rehnquist and the confirmation hearing, if that's
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OK. What prompted you to stand up
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and say what is? So as far as that's concerned
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and maybe you can set the stage for us a little bit.
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Well, we're back to Phoenix. It's 1962.
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I'm an assistant US attorney, a federal prosecutor, and the boss
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asked me to be the person in charge of taking complaints
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about the 1962 election. Routine stuff.
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So I did, and I was on the desk for that, and I got calls and so
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forth. I got a call from a.
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School, which was a voting place in South Phoenix and a
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predominantly black American and Hispanic neighborhood.
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And the complaint was that excessive challenging was going
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on to the people there. And some people were frustrated.
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The lines were very long. People had to get to work and so
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they were leaving. So I got an FBI agent and we
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went down to the school and there was Bill Rehnquist.
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I had my badge, you know, and I this is Mr. Jones with the FBI
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and so forth, whatever his name was.
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And that had a calming effect. But I said what, you know,
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what's the problem? And they indicated that Mister
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Rehnquist. As he that was was participating
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in the challenging okay, I was satisfied it wouldn't happen
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again because when you come and show your federal badge it's
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amazing what happens. You know, I showed her very
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rarely, but on that day I did so I went away and in 1986 I think
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it was my phone rang and. Was a reporter and the voice
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said, understand you had a issue with Bill Rehnquist, Justice
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Rehnquist as as he was, he was one of nine at a polling place.
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And I said, well, yeah, that's true.
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And they said, well, you know, having the hearings, he's been
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nominated to be Chief Justice. And I said, well, OK, but that
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what I said was that's a long time ago.
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I mean and I gave an example. I said Southern politicians have
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apologized for what what they did.
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And it's an awful long time ago. And the voice said, have you
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read his testimony when he went on the court in 1971 and I said
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no, I haven't read it. And she said he denied.
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Any involvement or something, something like that.
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And I said, oh, and the next day I received a call from a staff
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member of the Judiciary Committee, repeated the
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conversation, and I was asked if I would come be a witness.
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I had then read the testimony and I said if I'm subpoenaed, I
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will when I was. I don't know, 20.
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I walked around neighborhoods in Boston for political people
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knocking on doors and talking to black Americans who would answer
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the door. That was part of the Kennedy
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based. The idea that someone would
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challenge black Americans and Hispanic Americans in that
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neighborhood was abhorrent to me.
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I didn't like it and it. He showed me a side that Bill
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Rehydquist was was on. So I was subpoenaed.
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I went back and the story is in the book.
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And you know, I hate to confess this in public here if we were
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in poet, but I had a great time back there.
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I mean, I just felt like I know what happened and they don't.
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Of course, political truth and courtroom truths are two
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different things. And courtroom tells me you
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better be as accurate as you can.
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Politicians are not as accurate as they should be.
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That was fine and and but there is a tagline and that was I got
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another Supreme Court case representing political parties
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in California, and I went back and there is Bill Rehnquist,
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Chief Justice of the United States, sitting in the center
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row. And there I am.
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And that story is in the book. It's interesting how small the
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playing field is when you reach a certain level.
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Yeah. Recently I was actually quoted
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on television. MSNBC did a whole piece tracing
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what was done by Republicans starting way back, and they
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mentioned me. It was really Rehnquist that was
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the center of this story. But that process Republicans
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have done, the last election they were in Georgia, they were
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closing polling boost and making it harder and harder to vote.
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So it's about as unamerican as I can think of.
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I would agree. I know you would agree, but it's
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one of the last things we do with the government.
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We get the vote. Yeah, I have very much enjoyed
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our conversation and before I wrap, I have a couple of things
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that I. I do want to cover with you.
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If you were to be able to leave 123 Things as your legacy, what
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would you want people to remember for?
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I think my family? I will tell you a story.
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It's in the book. Yeah.
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The cows Jewish. And I'm Iris.
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And when we were first married, people would ask us, or after
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the children came, as they'd whisper it, they would say, how
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did you bring up the children? And it implied, it's impossible,
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isn't it? You know?
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And so we started to simply say to people who would raise that
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question, we fed them Wheezies and we sent them to Berkeley
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High School. And without going on and on and
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on our three children, our four grandchildren, that's a legacy.
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I find it telling that despite the illustrious career that you
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have had, the first thing that you mentioned is family.
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Well, my luck runneth over, and I was asked the other day by an
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interviewer who said, well, you balanced work and leisure and
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you know, you had this wonderful balance.
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How did you accomplish that? I said Carol Brosnahan, Judge
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Brosnahan retired. She was always there.
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She's the same this morning, and she made the transition from the
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old way of doing things to a new way of doing things.
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And what does happen to you when you get to be older is certain
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good things have happened and how they might have gone the
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other way If I didn't take a pie that Carol cooked over to her
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apartment the next day after I told her I could get my own
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dates. If I didn't do that, my whole
24:28
life would have been different. So that's the legacy.
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The other one though, I would mention is never give up.
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Don't give up. Just don't.
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I used to about twice a year I would declare the day bankrupt
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and go home at 2:00. And then the next day you go in
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and you start again. And I've got a couple of losses
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in the book. What's that like?
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And I think it makes interesting stories.
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Are there any lawyers? Two or three?
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Who he would want to hear from in a similar way that we're
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listening to you right now. Well, I keep telling my friend
25:10
John Tucker that he should do a book and he doesn't want to do a
25:14
book. Yeah, he's doing other things
25:16
right now which are very important in the city of San
25:19
Francisco, very important. And I have sat and listened to
25:26
John Cross examine my witnesses. I have been with him on the same
25:32
side on many occasions where we were working together, some
25:37
pretty exciting cases. And I think John possesses all
25:43
the skills, the personality, the refined abilities to question
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and to read the jury and understand about as well as as
25:53
anyone I work with. Along with Joe could chat, the
25:56
Joe could chat is both of these are in the Bay Area.
26:00
Joe Conchette to me remembers why he went to lost him.
26:05
He went to reform the whole world and he's been working on
26:09
it ever since. He's contributed so much to
26:14
society and his efforts both political and legal and is
26:20
recognized properly as one, one of the best.
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So if I mentioned those two, I think those would be my
26:27
favorites. It's interesting because when I
26:31
was thinking about the few lawyers who I know of who do
26:33
that civil, criminal Highline work, John Kecker was one of the
26:38
other names that I thought of. Yeah.
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As we reach an end, is there anything else that you think our
26:43
listeners should know from you? Well, it is very.
26:47
It's very simple. To young people out there
26:51
thinking about being a lawyer, I will tell you it's a good life.
26:55
The question is, if you want to be a trial lawyer, do you like
27:00
competition? Can be any kind of competition,
27:04
Not just sports or something, but any kind of competition.
27:08
Do you think that you could live with the fact that you might try
27:12
a case and and lose it? Because people do lose, So
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that's where the competition comes in.
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But here's the bottom line. If I ever saw a country, my
27:25
country, your country that needs reform in all areas, including
27:32
including the law, it is us now. In fact, I've said this to a
27:38
couple of people. If I could, I would start all
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over and I would work on diversity, which is not.
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Put the Supreme Court to one side is not accomplished at this
27:53
point the way it ought to be. And I would work on all these
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things again with the vigor of a young person.
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And so the law is a tool for that.
28:05
The plaintiffs lawyers, the defense lawyers, they see
28:09
things. They experience the problems.
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And then, you know, they go to a bar meeting and they propose a
28:16
draft a statute for the legislature.
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That happens every day. So those are a couple of
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thoughts. Anything else?
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Read the book. Well, and and I will say for
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anyone who's listening, my eyes are drooping today.
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The book kept me up later than I intended, just because I don't
28:35
think of a memoir typically as a page Turner.
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But I just kept wanting to see what was happening next.
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Yeah, that was the idea. Yeah.
28:43
Jim, thank you for being on today.
28:45
Thank you so much for having me. I appreciate it.
28:48
And I have as well. I really enjoyed our
28:49
conversation. And thank you for listening
28:52
today. Please e-mail us at podcast at
28:54
Cooperstadt Law with questions, comments, feedback and
28:57
suggestions you have on being the best trial lawyer possible.
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To all of you doing justice out there, Happy end.