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Transcript

Parking While Black: $11M Civil Rights Verdict After Action Review · Coopers' Code

• 0:00
  There's a lot of cops there for nothing.
• 0:03
  You know, they put these women in the back of these cars.
• 0:05
  They get their IDs from their car, from the Lagervale car and
• 0:09
  then run their IDs. Both the daughters are calling
• 0:12
  911 saying we're being detained by these police officers and we
• 0:16
  haven't done anything. Please send help.
• 0:18
  And finally, the the police take their phones from them so that
• 0:22
  they can't try and get help any longer.
• 0:25
  And these officers had dug themselves into a hole and
• 0:28
  couldn't figure out how to gracefully get themselves out of
• 0:31
  it. Of course it was saying I'm,
• 0:33
  I'm, I was wrong, I'm sorry. Is there anything we can do to
• 0:37
  make up for this and show them on their way?
• 0:40
  But they didn't do that until the Sergeant came.
• 0:42
  And eventually it's a Sergeant who shows up who is the one that
• 0:46
  speaks with each of the the women and releases them.
• 0:52
  Brian, you remember numbers Well.
• 0:53
  What was the verdict? Well, the verdict, that's an
• 0:56
  easy, that's a round Number. It was 2.75 million for each of
• 1:02
  the plaintiffs. 3 Plaintiffs total of 8,250,000.
• 1:07
  This would have still been a substantial verdict, but I think
• 1:09
  it would have not have been nearly as large as it was if the
• 1:12
  defense had simply got up and said, you know what?
• 1:15
  In retrospect, we were wrong. That's not what the cops were
• 1:18
  thinking at the time, but in retrospect, we were wrong.
• 1:20
  We're really sorry what they went through.
• 1:22
  That's not what we're about. And you should compensate them
• 1:24
  each, you know, 100,000 or 150,000 or something.
• 1:27
  I think that would have had a dramatic effect on the case.
• 1:30
  But instead they you know, they went the other direction and
• 1:32
  tried to attack. Howdy and welcome to the show.
• 1:38
  I'm really excited about today's program.
• 1:40
  We're doing something a little bit different.
• 1:43
  What we're going to be doing today is one of the first of
• 1:45
  what we're going to call our After Action reviews.
• 1:48
  And in that we're going to be taking a look at a verdict or
• 1:52
  other result, have the people involved and kind of parse
• 1:56
  through how they got what they got in this situation.
• 2:01
  We're going to be talking about the Lagervale case, which was a
• 2:03
  notable civil rights case. We're going to be speaking with
• 2:06
  Joseph May, Brian Gehringer and Craig Peters, the lawyers who
• 2:10
  are involved in this outstanding verdict.
• 2:12
  They were also able to preserve when it went all the way through
• 2:14
  appeal. So without further ado, I'm
• 2:17
  going to turn it over to Craig, who I believe is going to help
• 2:22
  give a little bit of a back story to the the incident that
• 2:25
  that gave rise to to the case itself.
• 2:29
  Thanks, Miles. Yeah.
• 2:30
  So this case started off with a mom and her two daughters
• 2:34
  traveling from their home in Las Vegas going to Berkeley, where
• 2:38
  the oldest daughter was going to take a test.
• 2:40
  She was in college. And after the test was over, the
• 2:44
  three of them plus a cousin were going to travel to San Diego to
• 2:47
  celebrate the youngest daughter's 18th birthday.
• 2:50
  And the plan was to drive during the evening.
• 2:53
  The daughters could sleep in the car while mom drove.
• 2:57
  And then when they got to Berkeley, oldest daughter would
• 3:00
  hopefully wake up, refresh rated to take her test and, and off
• 3:03
  they go. They stopped along the way in
• 3:05
  Castro Valley. They were a little bit ahead of
• 3:07
  time, and they stopped in Castro Valley so that the two daughters
• 3:12
  could get coffee and kind of wake up and refresh, use the
• 3:15
  restroom. And they pulled into a strip
• 3:18
  mall in Castro Valley where there was a Starbucks.
• 3:21
  And moms told the daughters, you know, go ahead and go inside and
• 3:27
  do whatever you need to do. I'm going to catch a few winks
• 3:30
  here. Since she'd been driving all
• 3:31
  night, she put her seat back and closed her eyes.
• 3:35
  The daughters didn't really wake up, so they sort of were still
• 3:39
  in their seats as well, not moving.
• 3:41
  And preceding this day, the Police Department had become
• 3:48
  aware of some morning burglaries that had happened at this
• 3:51
  particular strip mall where these burglars were doing these
• 3:55
  kind of smash and grab. So people would call in their
• 3:57
  Starbucks order, they'd park, they'd pull into the strip mall
• 4:00
  park. It was kind of a circuitous
• 4:03
  route you had to take to get to the Starbucks.
• 4:05
  So they would take that route, go inside and get their coffee,
• 4:07
  come back out. But in the meantime, somebody
• 4:10
  can steal some stuff out of their car.
• 4:12
  So they were all on high alert. They were watching this
• 4:15
  particular strip mall. And on this particular morning,
• 4:21
  these two officers, male officer and a female officer, approached
• 4:25
  the car. Male officers on the driver
• 4:27
  side, female officer on the passenger side.
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  And he knocks on the window, clearly startling the mom and
• 4:34
  the two daughters. Youngest daughter's in the front
• 4:36
  seat, oldest daughter's in the back seat.
• 4:39
  Mom, upon waking up, kind of starts to put her seat up and
• 4:43
  then rolls down the window and says, you know, what's the
• 4:47
  matter? Officer is not anything wrong.
• 4:48
  And he says, no, just, you know, there's been break insurance in
• 4:51
  the morning in this parking lot. And so we've been keeping an eye
• 4:54
  on things. And she says, oh, you know,
• 4:56
  thank you. I thinking this officer was
• 4:59
  being helpful. Don't leave stuff in your car
• 5:02
  'cause people have been breaking into cars.
• 5:04
  And the officer then said, yeah, can I see your ID?
• 5:07
  And she initially says yes and starts to reach down for her
• 5:10
  purse to get her ID. And as she is doing so, you can
• 5:14
  almost see it on her face like this change.
• 5:18
  Wait, why are you, why are you asking me for my ID?
• 5:20
  You were just warning me about burglars and now you want my and
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  couldn't understand. And anyhow, the officer said,
• 5:26
  yeah, you need to show me your ID.
• 5:28
  And then that essentially led to the detention 'cause she refused
• 5:31
  to give him her ID, which she had every right to do under the
• 5:35
  law. The oldest daughter at some
• 5:38
  point got out of the car because she was going to go into
• 5:41
  Starbucks to use the restroom. The officers told her she
• 5:45
  couldn't leave the car. And eventually, like I say, all
• 5:47
  three ended up getting put in handcuffs in the back of three
• 5:50
  different police cars, detained in the back of police cars for
• 5:56
  somewhere around, you know, 60 minutes or so, and then
• 6:00
  eventually released when a Sergeant was called to the
• 6:03
  scene. They eventually were released.
• 6:04
  But that's kind of the context of the case purportedly detained
• 6:08
  because of this, they were suspects of regarding these
• 6:12
  prior burglaries that had happened in the parking lot,
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  when in fact they there was nothing about them that matched
• 6:19
  any of the prior descriptions. Most of the most of the time
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  there was either no description. If there was a description, it
• 6:23
  was always a male. If it wasn't 1 male, it was 2
• 6:26
  males at most, usually young males.
• 6:29
  So there just wasn't anything that was similar about our
• 6:33
  clients. I think in one occasion, Joseph
• 6:35
  or Brian can correct me if I'm wrong, I think in one occasion,
• 6:38
  somebody actually did identify a, a young black male.
• 6:43
  But other than that, they're really, there wasn't any reason
• 6:46
  to think that these women were suspects in any way, shape or
• 6:49
  form. So that was the case.
• 6:52
  Brian and Joseph did all the work on this case.
• 6:55
  They took this case in, they worked it up.
• 6:57
  They fought all kinds of battles with really difficult defense
• 7:02
  counsel, difficult bordering on dishonest.
• 7:07
  They had a lot of motion work they had to do to get to get
• 7:10
  this case finally to the point where he's ready for trial.
• 7:12
  And then, of course, COVID hit. And then that created a whole
• 7:16
  nother delay in the case. So the incident happened in
• 7:19
  September of 2019 and we went to trial in 2023.
• 7:26
  February 2023. There you go.
• 7:29
  February 2023. So it was a long, it was a long
• 7:32
  course, particularly in federal court.
• 7:34
  That's, you know, things move along in federal court, but it
• 7:37
  took a while. And that was in part because of
• 7:39
  the COVID COVID pandemic, so. This was if, if I recall
• 7:43
  correctly, this is Judge Alsup who conducted the trial,
• 7:47
  correct? That's right.
• 7:49
  And when you talk about borderline dishonest, that's not
• 7:53
  just your opinion. If I recall correctly, there
• 7:55
  were some inferences in terms of some of the findings that also
• 7:59
  made post trial about the behavior of defence counsel.
• 8:02
  Is that a fair statement? Pre and post trial, and again, I
• 8:07
  think, you know, Joseph or Brian should speak to this, 'cause
• 8:10
  they were, they were there for a lot of things that I was not
• 8:12
  there for, including hallsups, dressing down of defense
• 8:17
  counsel, pretrial on a very specific issue where he lied.
• 8:21
  In the summary judgement hearing, the defense lawyer kept
• 8:25
  saying things that Brian and I were like, what are you talking
• 8:28
  about? That's that's not what happened
• 8:30
  at all. Of course things that were
• 8:32
  favorable to him if they were true.
• 8:35
  And so when it was our turn to talk, we we were like judge that
• 8:38
  the thing that the defense lawyer said that never happened.
• 8:41
  We had to do that repeatedly and we ate we kept pointing.
• 8:43
  We were luckily over prepared for this particular hearing and
• 8:46
  kept pointing to page in line of the depositions or the record
• 8:50
  And the judge kind of called the defense lawyer out at the
• 8:53
  hearing. And then in the order made it
• 8:55
  explicit that one of the reasons he was denying the defense
• 8:58
  summary judgement motion was because of all the
• 9:00
  misrepresentations of the defense lawyer.
• 9:01
  So it wasn't just an insinuation he he called him out explicitly.
• 9:05
  We were able to Fact Check him in real time.
• 9:08
  The hearing was by Zoom. So we were we were logged in, we
• 9:13
  were locked and loaded and we were word searching and and
• 9:16
  pulling up chapter line and verse of where he.
• 9:21
  It was the opposite of what opposing counsel is saying.
• 9:24
  And Judge Alsup does not suffer fools.
• 9:28
  Can you unpack that a little bit more in terms of of how you made
• 9:31
  that happen? Were you able to present the
• 9:33
  testimony on the screen for the judge?
• 9:36
  How did you do that in a way that was just so impactful?
• 9:40
  We didn't pull it up. We weren't sharing screen with
• 9:43
  the court, but we would, he would say where is that in the
• 9:46
  evidence? And we would pull up the
• 9:47
  declaration and say it's on page, you know, 17 lines, 24
• 9:53
  through 28. It's just the opposite of what
• 9:56
  counsels just represented, your honor.
• 9:58
  And then he'd say opposing counsel.
• 10:00
  What do you have to say about that?
• 10:02
  It's AII misremembered that when I you know, and he just tried to
• 10:06
  obfuscate and move on to something else.
• 10:09
  But it in the order there were four separate instances and
• 10:13
  judge also said where's the effect of you know, defense
• 10:18
  counsel misrepresented. Fortunately, plaintiffs council
• 10:21
  were prepared and he literally listed 1234 of the of the
• 10:26
  instances that we pointed out that he was misrepresenting the
• 10:30
  record 1. Thing that we didn't cover in in
• 10:35
  the narrative. And by narrative I mean the
• 10:39
  description of the case and then the verdict.
• 10:42
  People hear about lots of different types of civil rights
• 10:45
  cases and, and often times there are police shootings, there are
• 10:47
  police beatings. This was a detention.
• 10:51
  Was there any physical impact on your clients?
• 10:57
  I mean, aside from the obvious of being cuffed and thrown in
• 10:59
  the back of the car. No, that was basically it.
• 11:02
  It was some bruising on the wrists from the handcuffs and
• 11:07
  the arms, but that that that was it.
• 11:09
  Nothing that lasted any more than a few days.
• 11:11
  Minimal foot physical injury. And I don't mean to minimize the
• 11:16
  psychological impact of being toughed and put in the back of
• 11:19
  the car. And I think part of the reason
• 11:22
  people are talking about this verdict and, and noting its
• 11:25
  impact on law enforcement and, and civil rights cases going
• 11:30
  forward is because the jury understood the significance of
• 11:36
  this. And and that's a lead in to,
• 11:38
  does somebody want to share what the verdict was?
• 11:41
  Brian, you remember numbers well.
• 11:43
  What was the verdict? Well, the verdict, that's an
• 11:45
  easy, that's a round Number. It was 2.75 million for each of
• 11:51
  the plaintiffs. 3 Plaintiffs total of 8,250,000.
• 11:56
  And then moving forward, because it was a civil rights case and
• 12:01
  because of some of the elements associated with civil rights
• 12:03
  cases, you were entitled to attorneys fees too, correct?
• 12:07
  That's what they told me. And then because it went up.
• 12:12
  And and interest I think, right. Didn't we get some interest as
• 12:15
  well? I think, yeah.
• 12:16
  Because it went up on appeal, there was interest and and the
• 12:19
  ultimate judgement was something worth of $11 million, correct?
• 12:24
  We never got a formalized judgement.
• 12:26
  What happened was post trial Joseph took the lead on the post
• 12:31
  trial motion opposing their motion for new trial and our
• 12:35
  concurrent motion for attorneys fees and prevailing party costs
• 12:40
  and what have you. So I think the the round Number
• 12:44
  was also awarded US attorney's fees of roughly 1,750,000.
• 12:50
  So when it went up on appeal, it was basically $10 million with
• 12:56
  interest accruing going forward. I bring this up not because it's
• 13:03
  always just about the money, but because the message that that
• 13:06
  verdict sends to law enforcement in terms of what is acceptable
• 13:11
  behavior and what is not, that then goes to some of the work in
• 13:17
  terms of putting on before the jury.
• 13:19
  And broad question, what do you think thematically connected
• 13:24
  with the jury that that helped them understand the significance
• 13:28
  of this event? You know, every case when you
• 13:30
  get to the end and you look back and you say, how did we get to
• 13:33
  that end point in this case of whatever 11,000,000 bucks.
• 13:36
  And I think there's three really three things that drove that
• 13:41
  drove this verdict. The first was we had amazing
• 13:45
  clients. I mean, they just, they were
• 13:47
  incredible. In fact, Brian and Joseph told
• 13:49
  me about them and couldn't say enough good things.
• 13:52
  And then I went and met them when they asked me to, to join
• 13:57
  them in the case. And after we were done meeting
• 13:59
  them, I was like, you guys lied to me.
• 14:01
  They're actually better than what you said.
• 14:03
  I mean, they were just, they're just a plus people.
• 14:07
  So we knew that a jury would or at least it felt like a jury
• 14:11
  would like them. So that was that was one, I
• 14:13
  think one piece of the secret sauce.
• 14:15
  The second piece was that we had a defense attorney who just had
• 14:20
  a very and two police officers, quite frankly, who had a very
• 14:25
  loose connection to the truth and just kind of couldn't get
• 14:29
  out of their own way sometimes. And that really, I think that
• 14:33
  really benefited the case in terms of of, you know, driving
• 14:37
  the the harm that was done. And then the third piece, which
• 14:40
  quite frankly, I think was the most important piece was Joseph
• 14:44
  and Brian. You know, they fought every
• 14:47
  battle before we got into trial. So by the time we got to trial,
• 14:51
  you know, it was pretty well packaged up and ready to go.
• 14:54
  And what you just heard about in terms of like the MSJ ruling, I
• 14:57
  mean, they knew every fact in the case.
• 15:00
  It was and there were a lot of facts to deal with.
• 15:02
  There were a lot of rabbit holes to run down.
• 15:05
  And there's just as my grandfather used to say, you
• 15:08
  know, there's, there's no substitute for preparation.
• 15:10
  They were so prepared and knowledgeable about the case
• 15:13
  that when we were in trial, we, it, it felt to me like we were
• 15:18
  the much more facile group to be able to work with combating the,
• 15:25
  you know, the defense bullshit, quite frankly.
• 15:27
  And our information came in in a way that felt very unassailable.
• 15:31
  So I think kind of those three things were sort of the
• 15:34
  underpinnings that helped get this jury to the verdict that
• 15:38
  they ultimately got to. But then sort of floating out,
• 15:43
  there was then this environment that we just come out of with
• 15:46
  George Floyd and others who had been so horribly, you know,
• 15:53
  injured or killed or wrongly imprisoned by police officers.
• 15:58
  And I think that for our jurors, this was a moment to sort of
• 16:03
  take a stand and they understood the, the challenge that our
• 16:06
  clients were going through in bringing this case.
• 16:08
  Because as we talked to the jurors about in closing, you
• 16:11
  know, the easy thing for the lager bales to do would be just
• 16:15
  walk away, right? They, they got released.
• 16:17
  Just get on with your life. Bringing a lawsuit is incredibly
• 16:20
  inconvenient, time consuming, dredges up all those bad
• 16:25
  feelings that you had when the event was occurring.
• 16:27
  And they didn't do that. They said, you know, we believe
• 16:32
  in our justice system. We believe that there's a way to
• 16:34
  right these wrongs. We believe that we can be better
• 16:37
  as a society. And if people like us don't take
• 16:39
  a stand and give this to a jury of our peers to make a decision
• 16:44
  about, then this kind of thing continues on.
• 16:46
  And I think that then is what allowed the jury to get to.
• 16:51
  And I agree with you, Miles. I think numbers, we talk about
• 16:53
  numbers the wrong way. Sometimes the numbers in and of
• 16:57
  themselves don't aren't as important as what they
• 17:02
  represent. And in this case, I think the
• 17:04
  numbers are incredibly important because they represent the
• 17:08
  breadth and the depth of the harm that the jurors felt that
• 17:11
  these kinds of incidents not only do to people like the lager
• 17:15
  Vales, but they undermine our sense of community.
• 17:19
  Whether you're white, black, Asian, Latino, it doesn't
• 17:22
  matter. If you know that these sorts of
• 17:25
  things are going on where police are treating folks differently
• 17:27
  because of the color of their skin, that's a that's a
• 17:31
  detriment to everyone and we need to recognize that in the
• 17:35
  way in which we compensate it. I wonder to what extent because
• 17:41
  they're, they're learnings across the board here.
• 17:43
  Defense lawyers listen to the program too.
• 17:46
  And at the risk of giving them learnings for their cases, early
• 17:52
  in your answer you talked about how the I won't land your
• 18:00
  euphemism properly. But not being as facile with the
• 18:04
  truth is is is a close way of saying it.
• 18:09
  If the defense lawyers had been more able to communicate truth,
• 18:16
  do you think that the jury would have have had the same response?
• 18:22
  I'm a former deputy city attorney in San Francisco and I
• 18:25
  defended police and the defense in our case in his closing,
• 18:32
  called our clients liars and it just made it worse.
• 18:36
  The stars aligned for this case. We had a great team.
• 18:41
  Our collective wisdom far exceeded the other defense
• 18:44
  counsel. We had a a great judge,
• 18:48
  difficult, but his heart was in the right place and we had a
• 18:52
  fantastic jury. It was literally a cross section
• 18:55
  of the Bay Area and they got it. But if I'm the defense lawyer, I
• 19:00
  get up in closing and say we don't think these deputies did
• 19:04
  anything wrong. Ladies and gentlemen, you might
• 19:06
  disagree with me and that's OK. You're you're here to interpret
• 19:09
  the facts. And if you disagree with me, I
• 19:12
  think you should award each of these women $150,000 apiece.
• 19:17
  You know, that's a lot of money. And, and so that's how I would
• 19:20
  have started my closing. So that way you've set a floor
• 19:24
  to contrast with Craig's ceiling.
• 19:28
  And Craig is not giving himself enough credit.
• 19:34
  The closing was what you know, was the coup de
• 19:55
  It didn't sound hokey that he he nailed it.
• 19:58
  And judge also coincidentally had a young female black clerk.
• 20:04
  I, I didn't notice this because I was, you know, focused on
• 20:06
  Craig. Apparently she started crying
• 20:08
  and and had to leave the courtroom in the middle of the
• 20:11
  closing. So, you know, as a, you know,
• 20:14
  somewhat of a of an additional juror.
• 20:16
  She saw the whole trial. She got it in in Craig
• 20:20
  emotionally connected with her and he clearly connected with
• 20:23
  the jury because their verdict, they were pissed.
• 20:27
  And they're like this, this was wrong and everything about this
• 20:32
  case was wrong from start to finish.
• 20:34
  And that because they, they, they rejiggered the the verdict
• 20:39
  to make sure that it added up to 2.75 per plaintiff because
• 20:44
  there's different theories for the mom and the two daughters.
• 20:49
  And they, they worked it so that they, they were clearly sending
• 20:54
  a message and they, they rejected Craig's suggestion.
• 20:58
  In closing, Craig suggested either 2.5 million or 30,000 per
• 21:05
  minute, which was 90 minutes, so 2.7.
• 21:09
  And the jury said, no, he, Mr. Peters, you're wrong.
• 21:12
  It's 2.75. So they were listening and they,
• 21:17
  they're like, they, they, they, they turned up the volume just
• 21:21
  slightly more than what what Craig suggested.
• 21:25
  I want to go back and to the beginning.
• 21:28
  One of the things that that I observed is that most civil
• 21:34
  rights cases that you hear about, there's an element of, of
• 21:37
  significant violence involved, but permanent injuries, death.
• 21:41
  And there aren't a lot of people that I'm aware of that are
• 21:44
  taking, have been historically taking cases like this
• 21:48
  detentions only. I I suspect that the result that
• 21:51
  this had will change that. And how did you reach the point
• 21:58
  where you decided that this was one that you were willing to
• 22:01
  take the risk? The honest and simple answer is
• 22:04
  I'm I'm kind of small peanut smiles.
• 22:06
  I, I don't have access to the great cases, the shooting cases.
• 22:11
  There's there's some heavy hitter civil rights attorneys in
• 22:13
  the Bay Area who advertise and have a big name and and a track
• 22:16
  record. I, I'll take a good liability
• 22:20
  case because you get, you get the fees.
• 22:22
  That's, you know, that's the benefit of these fee shifting
• 22:25
  statutes is I know that I'll get paid for all my time, a
• 22:28
  reasonable hourly rate if it's a good liability case.
• 22:31
  And often these are not often there's, you know, they raise
• 22:33
  really tricky questions about qualified immunity and you know,
• 22:37
  the police are often kind of given the benefit of the doubt
• 22:40
  and, and there's all that going on.
• 22:41
  And so I wouldn't normally take a, a case without significant
• 22:44
  physical injury unless I felt it was really good liability.
• 22:48
  And I, and I think that was one thing I've always had about this
• 22:52
  case is confidence that what the cops did here was wrong.
• 22:54
  I, I never understood why they would have detained these women.
• 22:58
  And, and when I looked at it up and down and, and every which
• 23:01
  way, the only conclusion I could ever reach is that it's because
• 23:04
  they're black. Nothing else made any sense to
• 23:06
  me. And that, and that got me angry
• 23:09
  and it got me fired up. And, and you know, Brian and I
• 23:12
  discussed it from the very beginning.
• 23:13
  I, I just said I, I can't see how there's even reasonable
• 23:16
  suspicion on this. And, and for people who don't
• 23:18
  know much about civil rights cases or 4th Amendment,
• 23:21
  reasonable suspicion is a very low standard.
• 23:24
  And so if you're arguing reasonable, whether the cops had
• 23:26
  reasonable suspicion, you're often going to lose those cases.
• 23:29
  You're, you're, you're much better off saying that this was
• 23:31
  an arrest and the cops didn't have probable cause, which is a
• 23:34
  higher burden for them. We didn't even argue that we, we
• 23:37
  dropped that. That's how strongly we felt that
• 23:39
  there wasn't even reasonable suspicion.
• 23:41
  We were willing to hang our, our entire case on that 'cause I
• 23:44
  just thought it was so blatant. That was enough to, to get us
• 23:47
  fired up. And you know, I, I didn't think
• 23:49
  the verdict would be what it, what it would be, but I was
• 23:52
  always confident that we would win the case, get them something
• 23:54
  reasonable and, and hopefully get all of our fees paid in the
• 23:57
  end. I.
• 23:58
  Was looking up one of the 4000 emails in this case.
• 24:02
  Joseph and I have worked together over the years on about
• 24:05
  a dozen or 15 cases and I've learned that if Joseph thinks
• 24:09
  it's a good case, I'm on board and we're both solos and to do
• 24:13
  civil rights cases that enables us to pool our resources, share
• 24:18
  the risk and I love working with Joseph.
• 24:22
  So we had a meeting set up with the clients for December 19th,
• 24:26
  2019. That was the official in person
• 24:29
  meeting a week earlier. Joseph sent me an e-mail, a
• 24:33
  short e-mail, and I'm quoting from Joseph's e-mail.
• 24:37
  Quote, Since there was never reasonable suspicion to suspect
• 24:41
  the logger fail family of any crimes, I can't see how their
• 24:45
  detention, handcuffing, and the subsequent search was in any way
• 24:50
  justified. close quote. That's exactly what the jury
• 24:54
  concluded. But Joseph got there five years
• 24:58
  earlier. As we we talk a little bit about
• 25:01
  the facts going back to the amount of time that they were
• 25:05
  cuffed and put in the back of the squad cars, 60 minutes seems
• 25:10
  like a very long time to figure out that these people had
• 25:13
  nothing to do with what had been going on, what was happening
• 25:17
  during that time. Well, so a lot as you know with
• 25:22
  body worn cameras now a lot is recorded video wise and audio
• 25:27
  wise. And from my background as a
• 25:30
  public defender, I've, I learned very early on in that role that
• 25:36
  a lot you can learn as much from what is left out as from what is
• 25:40
  included. So these, how many police
• 25:43
  officers were there you guys? I think 7. 7:00 or 8:00.
• 25:47
  Yeah, I mean, there was a lot of cops there for nothing.
• 25:51
  You know, they put these women in the back of these cars, they
• 25:53
  get their I DS from their car, from the Lager Vale car and then
• 25:57
  run their I DS this whole time waiting for by the way, the both
• 26:02
  the daughters are calling 911 saying we're being detained by
• 26:06
  these police officers and we haven't done anything.
• 26:08
  Please send help. And finally, the the police take
• 26:12
  their phones from them so that they can't try and get help any
• 26:15
  longer. But eventually it's a Sergeant
• 26:19
  who who shows up, who is the one that speaks with each of the the
• 26:25
  women and releases them. And I think, you know, police
• 26:32
  have a hard job. And, and that was, I should say,
• 26:34
  you know, a part part of our pitch was, you know, we're not,
• 26:37
  we're not here 'cause we're anti police.
• 26:39
  And the Lager Bales aren't anti police.
• 26:40
  In fact, to the contrary, they were, they hadn't had that
• 26:43
  experiences with the police. But if you allow police to fall
• 26:48
  below the standard that we expect, then that sullies the
• 26:52
  name for the good police officers out there who haven't,
• 26:55
  right? And we all need to be held
• 26:56
  accountable in our jobs, whatever job we're doing, but
• 26:58
  particularly when we're law enforcement.
• 27:01
  And these officers had dug themselves into a hole and
• 27:03
  couldn't figure out how to gracefully get themselves out of
• 27:07
  it. Of course, it was saying, I'm,
• 27:09
  I'm, I was wrong. I'm sorry.
• 27:12
  Is there anything we can do to make up for this and show them
• 27:15
  on their way? But they didn't do that until
• 27:17
  the Sergeant came. And so one of the things we also
• 27:22
  because there was so much body worn camera, we had some good
• 27:25
  clips in there of the police officers, for instance, before
• 27:29
  the Sergeant came, they all turned off their audio.
• 27:32
  So their video is on, but their audio's off.
• 27:34
  And one of the things we asked the, you know, the jurors is
• 27:36
  like, what do you think they're talking about there?
• 27:38
  Right? Like why do they turn their
• 27:40
  audio off? That's weird.
• 27:41
  You know, they're apparently investigating crimes.
• 27:44
  Why wouldn't they want to be heard on their why wouldn't they
• 27:48
  want to record that? You know, there's also kind of
• 27:50
  the non verbal that I think also sort of shed light that the
• 27:56
  officers knew that they had sort of stepped in it.
• 27:59
  There was one point where the male officer who had originally
• 28:04
  approached the car, he's walking back to the car and he sighs,
• 28:08
  right? I think he's sighs.
• 28:10
  And it was like, oh, that's the sigh of somebody who's like, how
• 28:13
  do I get myself out of this? And then when the Sergeant comes
• 28:15
  later after he's talked to two of the two of the women and he's
• 28:19
  going to talk to the third, you hear him mutter under his
• 28:21
  breath. God damn.
• 28:24
  And it's like he also knows like this is these guys and gals did
• 28:29
  not do this correctly. So anyhow, so that's all.
• 28:32
  And he's, and the Sergeant during this time when he's
• 28:34
  talking to them is trying to, he's like, I want you to
• 28:37
  understand why they did what they did.
• 28:38
  And I don't want you to go away from here, man.
• 28:41
  I don't want you to, you know, think that all police officers
• 28:43
  are bad. You know, we're, we're doing the
• 28:44
  best we can. And he's doing a lot of
• 28:47
  explaining to try to, you know, sort of temper their their
• 28:52
  understandable anger, which and they do kind of calm down,
• 28:58
  although, you know, still upset about what they've gone through.
• 29:02
  So, so that's kind of what took so long.
• 29:04
  I guess it took a long time for them to say we were wrong, which
• 29:08
  they never. And that's the other thing going
• 29:09
  to your earlier question, I think Brian's right.
• 29:11
  I think this would have still been a substantial verdict, but
• 29:14
  I think it would have not have been nearly as large as it was
• 29:17
  if the defense had simply got up and said, you know what, in
• 29:20
  retrospect, we were wrong. That's not what the cops were
• 29:23
  thinking at the time. But in retrospect, we were
• 29:24
  wrong. We're really sorry what they
• 29:26
  went through. That's not what we're about.
• 29:29
  And you should compensate them each, you know, 100,000 or
• 29:31
  150,000 or something. I think that would have had a
• 29:33
  dramatic effect on the case. But instead they you know, they
• 29:37
  went the other direction and tried to attack.
• 29:40
  Was there any disciplinary process for any of the people
• 29:43
  involved in this? They got promoted.
• 29:48
  Joseph, why don't you jump in 'cause we had one of our claims,
• 29:52
  a Monell claim for those who are not civil rights practitioners,
• 29:57
  there's no vicarious liability of the public entity.
• 30:00
  You have to have direct liability.
• 30:02
  And one of the ways to get the the county directly liable is if
• 30:06
  they ratified the actions of the officers or the deputies after
• 30:11
  the fact. And then Joseph did terrific
• 30:15
  work up there. So take it away, Joseph.
• 30:18
  In all of my cases, I'll, I'll, I will submit a, an internal
• 30:22
  affairs complaint on behalf of the clients.
• 30:24
  And that's a good way to force them to actually investigate if
• 30:27
  they haven't already. And we expect that they're
• 30:31
  always going to be unsustained, not sustained, because that's
• 30:34
  just often how it is. They don't want to create
• 30:37
  something that will potentially make them liable when they think
• 30:40
  they're not. But the yeah, what we found out
• 30:44
  was that they just did a really, really cursory investigation.
• 30:48
  I think that they basically just reviewed the the officers police
• 30:51
  report and maybe the body Cam videos.
• 30:54
  So Craig was saying earlier, you know, the, the prior suspects in
• 30:57
  these break insurance were young men.
• 31:00
  One, one of them was a young African American man 1 was a
• 31:03
  young Latino man driving cars that didn't resemble our
• 31:07
  client's car. And they didn't bother to track
• 31:10
  down those police reports for those other incidents when they
• 31:12
  were investigating this. If they had, they would have
• 31:14
  been like, why? Why did you detain these women?
• 31:16
  The car doesn't match, the race doesn't match the the gender
• 31:19
  doesn't match. So the sheriff just kind of just
• 31:22
  looked at what the cops did and what the cops said, took them at
• 31:24
  their word. No investigation, didn't attempt
• 31:26
  to interview the plaintiffs. They, they almost always try to
• 31:29
  interview the clients. I mean, I will say, no, you
• 31:31
  can't interview them, but at least they ask.
• 31:33
  And so it didn't look good that they didn't even bother to ask
• 31:35
  us for an interview. And the sheriff in his own
• 31:38
  handwriting wrote on the top of the report, no further action
• 31:41
  needed. Basically, we're good with what
• 31:43
  they did. And, and under Monell, you need
• 31:47
  the highest policy maker for the entity.
• 31:51
  And that's the sheriffs we had who we needed.
• 31:52
  We didn't even depose him. And it turned out it was a close
• 31:55
  call. One of the appellate judges
• 31:57
  dissented on this actually, but it turns out that that's all you
• 32:00
  need for ratification in our case.
• 32:01
  So I think that's actually been helpful to other plaintiffs
• 32:03
  lawyers as well. If you're enjoying what we're
• 32:06
  doing here with Cooper's Code, please help us extend our reach
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• 32:12
  sharing an episode with a friend.
• 32:13
  Additionally, we want to know who you want to hear on the
• 32:15
  show. I have an interview suggestion.
• 32:17
  e-mail us at podcast at Coopers dot Law.
• 32:21
  It's not lost on me observationally that we have 4
• 32:25
  white guys talking about a civil rights case.
• 32:28
  And, and I say that in the context of of the question that
• 32:32
  I'm going to pose, which I don't know that any one of us can't
• 32:36
  answer. How many other lager vales do
• 32:40
  you think are happening out there?
• 32:41
  They're just not being acted upon.
• 32:44
  People who feel like their rights won't be protected
• 32:49
  because of who they are and and their interactions with law
• 32:53
  enforcement. A ton.
• 32:57
  I mean, I just know that from my public defender days, right?
• 33:00
  Like this happens all the time. And it's a combination of the
• 33:05
  immunities that police are provided, which makes them feel
• 33:10
  untouchable, coupled with how long it takes for litigation to
• 33:15
  happen and ultimately come to a conclusion.
• 33:18
  This being a case in .544 years, something like that, coupled
• 33:24
  with what you mentioned earlier, Miles, which is so many civil
• 33:27
  rights lawyers, you know, their, their practice is somebody was
• 33:31
  killed, somebody was severely beaten or somebody was
• 33:33
  imprisoned for years. Those are their cases.
• 33:35
  And if you don't fall into one of those 3 buckets, you know,
• 33:39
  they don't, they don't have the bandwidth to handle your case.
• 33:43
  No, no faults on them. It's just, you know, it's just
• 33:47
  the way the practice is developed.
• 33:48
  And so, you know, all those things conspire against somebody
• 33:52
  being able to even get an attorney, even if they feel like
• 33:55
  they've got the internal fortitude to get into the, you
• 34:00
  know, to get into the arena to do the battle.
• 34:03
  It's, it's, I mean, I hope more people are taking these cases,
• 34:09
  but 'cause as Joseph said, right?
• 34:12
  I mean, I, it's, it is right. These are the kind of things
• 34:16
  that can actually change society.
• 34:18
  It doesn't happen right away, but it can happen slowly over
• 34:21
  time. And if more people take these
• 34:23
  cases and with the availability of getting your legal fees paid,
• 34:28
  even if the result is not a huge 1 monetarily for your client,
• 34:33
  it's still it's, it's a good reminder to these agencies that
• 34:38
  this is something that should be taken seriously.
• 34:41
  It shouldn't just be given lip service.
• 34:42
  And that's reminding me now, you know, one of the things we had
• 34:45
  in this case, Joseph's position that there wasn't, you know,
• 34:49
  there was no reasonable suspicion, let alone probable
• 34:51
  cause. We had somebody who was a post
• 34:54
  trainer who came into the trial. Because there is a hypothetical
• 35:00
  that's used in post training which all officers receive,
• 35:02
  including these officers that we were going against, where you're
• 35:06
  given a fact pattern about a, a, basically a, a guy who's dealing
• 35:11
  drugs. And the fact pattern is that you
• 35:14
  go by the area where this guy has known, been known to be
• 35:17
  dealing drugs. He matches the race, he matches
• 35:21
  the age roughly. He's in the same location.
• 35:25
  And he's looking around, I think furtively or something, and
• 35:28
  putting his hands in his pockets.
• 35:29
  And the question is, do you have reasonable suspicion?
• 35:32
  And the answer is no, you do not.
• 35:35
  That's a better fact pattern than what we had in our case.
• 35:39
  And so we brought that person in.
• 35:42
  I think Joseph or Bryant, one of the two of them found this guy.
• 35:45
  And so we were able to put him on the stand and walk through
• 35:49
  that hypo and then say, OK, now let's give you our hypo also, no
• 35:54
  reasonable suspicion. And he said, well, yeah, based
• 35:57
  on just those facts, yeah, there wouldn't be.
• 35:59
  Just to clarify, we didn't find him.
• 36:01
  The county put him up as a person most knowledgeable on one
• 36:03
  of our deposition notice topics. Even better.
• 36:06
  Sorry. But Joseph Dugout The post is
• 36:11
  short for Peace Officer Standards and Training.
• 36:14
  Every deputized or police officer in the state has to pass
• 36:20
  a post certification and that's in their training materials.
• 36:24
  And Joseph found that and had that ready to go.
• 36:28
  And opposing counsel tried to block it and object and coach
• 36:33
  and every which way. And by this time Joseph had
• 36:36
  beaten up opposing counsel 4 or five times on discovery motion
• 36:40
  motions that we Joseph won everyone.
• 36:43
  And he finally let the guy answer the question and he was
• 36:47
  locked in. And then we called him a trial
• 36:50
  and he he had to stick to what he had testified his deposition.
• 36:55
  And I believe they, they tried to keep him out of trial him,
• 36:59
  you know, that it was not relevant, redundant, what have
• 37:01
  you. And that was a very powerful
• 37:04
  piece of evidence Miles to to add to your, your amplify your,
• 37:10
  your prior question. We've all heard the expression
• 37:13
  driving while black and the dangers of driving while black.
• 37:17
  When I had when I would tell my lawn legal friends, both of
• 37:22
  them, I said this was the parking while black case.
• 37:26
  It's gone to even another level. They're just parking sitting in
• 37:30
  a parked car and they're hassled.
• 37:33
  And the three of us have the good fortune of being nominated
• 37:37
  by the San Francisco Trial Lawyers Association that for
• 37:41
  this case to be trial lawyer of the year.
• 37:43
  And I brought in one of my former clerks, an African
• 37:47
  American man who would he's been a lawyer for 10 years now.
• 37:52
  And just in talking to him, he goes, I can't tell you how many
• 37:55
  times I've been pulled over and hassled even since I become a
• 37:59
  lawyer. And you know, he knows his
• 38:01
  rights and he's he's still hassled.
• 38:04
  And I was kind of both shocked and disappointed to hear that.
• 38:08
  It's like it's, it's 2025 and it's, it's still, it's still
• 38:14
  commonplace and we can understand it as 3 white guys
• 38:19
  who tried this case, we can understand it intellectually,
• 38:22
  but we don't, we don't, we don't get it literally because it,
• 38:27
  it's never happened to us. Layering on to that and and this
• 38:32
  may be a question for for Joseph, but but any one of you,
• 38:36
  a lot of our listeners are, are true believers, meaning they're
• 38:39
  doing this because they understand that without lawyers
• 38:44
  like us to help right wrongs, things will not be balanced.
• 38:48
  With that in mind, when people are approached with cases that
• 38:53
  have fact patterns like this, what recommendations can you
• 38:56
  provide to them to help them be more open to taking on cases
• 38:59
  that might be tougher appearing from the outset but but didn't
• 39:04
  turn into something like what the three of you were able to
• 39:06
  turn this case into? I would say, are we talking
• 39:09
  about people who have experience doing 1983 cases or not?
• 39:12
  Because I think that that might make a difference.
• 39:14
  If you're talking about a personal injury lawyer who gets
• 39:16
  approached with a false detention type of case, you
• 39:21
  know, it's, it's tough to get up to speed.
• 39:22
  It's, there's a whole big body of, of law on this.
• 39:25
  There's a lot of pitfalls that, you know, and I hate to be that
• 39:27
  guy who's like, you know, don't try something that you've never
• 39:30
  done before because that, you know, when I was coming up,
• 39:32
  people were like, you should, you know, bring in a, bring in
• 39:34
  one of us from the big firms to help because you don't know what
• 39:36
  you're doing. So I don't want to say that, but
• 39:39
  but there is a specialized area of knowledge in these cases.
• 39:42
  And I and I think it really is important to know what you need
• 39:44
  to know because because you will miss something very important.
• 39:48
  So if that's the case, you know, call one of the people who do
• 39:51
  this. There's a lot of people who do a
• 39:52
  lot of these cases all over the state and elsewhere.
• 39:57
  I'll give AI don't know if this is something you want to leave
• 40:00
  in or appropriate for the moment, but I'll give a little
• 40:01
  public service announcement. I'm, I'm taking a, a break from
• 40:04
  the practice. I haven't been doing any new
• 40:06
  cases for a while, but I'm, I'm still really committed to, to
• 40:09
  what we're doing and I'm happy to help.
• 40:12
  If anybody has a case that they're interested in, wants to
• 40:15
  analyze a case, maybe know something about this area,
• 40:18
  you're, you're always welcome to reach out to me.
• 40:20
  I'm happy to just talk about it and tell you what I know and
• 40:23
  tell you kind of what what you need to know to to move forward.
• 40:26
  And Joseph, that, that actually was exactly what I was fishing
• 40:28
  for was I think that there are a lot of lawyers out there who
• 40:31
  would like to make a difference but are unconsciously
• 40:34
  incompetent, meaning they, they don't understand these types of
• 40:39
  cases. They, they can, you know,
• 40:41
  potential client has reached them.
• 40:42
  They can smell that something's something's off, but they're not
• 40:46
  quite sure what to do with it. And what I'm hearing from you is
• 40:48
  you'd be willing to to spit ball that and help somebody figure
• 40:51
  out if there's a right direction for that.
• 40:52
  Absolutely. And most of the civil rights
• 40:54
  lawyers I know, especially the smaller firms like Brian and
• 40:57
  myself, we're we're always happy to Co counsel if it's, if it's a
• 40:59
  good fit for somebody we want to work with, if it's a good case
• 41:02
  and Co counseling is great. You get to stay involved, you
• 41:05
  get to learn a lot and you know, you, you, you have that
• 41:09
  resource. So I I'd say that's another Ave.
• 41:12
  to go. Let me pile on with the Co
• 41:15
  counseling endorsement as a solo.
• 41:18
  I won't take one of these cases by myself because you'll get
• 41:22
  swamped. You know, we we collectively had
• 41:25
  thousands of hours in this case and from the time of our initial
• 41:31
  client meeting in December of 2019 to the time that the
• 41:35
  settlement check cleared in late December 2024 was five years.
• 41:40
  And is like Craig is tired of hearing me say this, but this
• 41:46
  case took longer than it took the United States to enter and
• 41:49
  win World War 2. So you have to have long staying
• 41:53
  power. And that's if you're a solo or
• 41:56
  small firm. Co counseling is great because
• 41:59
  Joseph and I did in most of the briefing up to the point of
• 42:03
  trial. We divvy stuff up.
• 42:05
  OK, you take ratification, I'll take unlawful, you know,
• 42:10
  detention, you know, and, and then we would then you're,
• 42:14
  you're a, you're a drafter, you're drafting your work,
• 42:17
  you're editing your colleagues work.
• 42:19
  And collectively, you know, we, we had excellent work product.
• 42:23
  And, and if you pick someone you like working with, it, it, it
• 42:27
  gets you out of your little monkish's existence as a solo
• 42:34
  where you're talking on the phone or you know, you're
• 42:36
  collaborating. And it, and it's frankly, it's,
• 42:39
  it's more fun. Craig, I also wanted to ask a
• 42:43
  question about your background being a public defender and
• 42:45
  whether you felt that your exposure to police officer
• 42:48
  behavior in the past from that lens helped in terms of your
• 42:54
  ability to to take on this case? Or to any extent whether it
• 42:58
  might hinder in terms of you having an experience that, say,
• 43:01
  a common juror might not from seeing things that some people
• 43:05
  might consider inappropriate. I think it helped more than
• 43:10
  hurt. I There is a personality type
• 43:15
  for police officers, plenty that fall outside of it, but you
• 43:19
  know, 7080% kind of there is a personality type that you get
• 43:23
  used to when you are, you know, if you're a public defender,
• 43:27
  you, you're spending most of your time cross examining police
• 43:31
  officers, whether it's in preliminary hearings or trials.
• 43:35
  So you, you get, you either get good at it or you get out.
• 43:39
  And in doing that and going through that process, you start
• 43:45
  to learn kind of what their defaults are.
• 43:47
  So I think that was helpful. Coming in.
• 43:50
  I had a sense, I had a pretty good guess of how the police
• 43:53
  officers would behave in this case.
• 43:56
  And they did. They acted true to form.
• 43:58
  They stuck to their story, which was not believable.
• 44:01
  Even after they knew facts that were different, they'd still
• 44:03
  repeat wrong facts. You know, in terms of the, the
• 44:11
  experience. I mean, you know, look, I'm a
• 44:14
  white guy. I, I have a different experience
• 44:17
  than certainly than the lager vales have had in my life.
• 44:21
  But for that matter, I also had a very different experience from
• 44:24
  the majority of the clients that I represented as a public
• 44:26
  defender for, you know, a decade and a half.
• 44:30
  But at some point it starts to rub off on you a little bit.
• 44:34
  You're not experiencing it directly, but there's this, I
• 44:38
  don't know how to describe it exactly.
• 44:40
  It's almost like an emotional pall that just kind of sits on
• 44:45
  you. Part of it is, I'm sure the job,
• 44:47
  but part of it too is just knowing kind of the uphill
• 44:51
  battle that so many of your clients have just in existing
• 44:55
  and kind of getting through day-to-day.
• 44:57
  The, the system starts to feel even more stacked than people
• 45:01
  who aren't public defenders might think.
• 45:02
  The system is right. And so that starts to wear on
• 45:05
  you. I, I think that may have been
• 45:07
  problematic for me had this case not happened after all America
• 45:12
  had gone through in the very recent past with so many high
• 45:16
  profile egregious police officer cases where they were acting
• 45:23
  badly and people were dying or getting incredibly, horribly
• 45:29
  injured. So I think that was so that,
• 45:31
  that was helpful. That was just a circumstance of
• 45:34
  the times that was I think was helpful in this particular case.
• 45:39
  But I do, I do echo what Brian and Joseph were saying about
• 45:42
  these. You know, a 1983 case is it's
• 45:46
  very different and there are tons of pitfalls and I'm doing
• 45:50
  some now. But again, like Brian, like
• 45:52
  Joseph has mentioned, I do them with somebody else because
• 45:56
  they're so difficult. There are so many pitfalls and I
• 45:59
  need folks like, I mean, Joseph and Brian are incredible at
• 46:04
  knowing where those pitfalls are, knowing how to come up with
• 46:06
  a discovery plan that will, you know, hopefully avoid those
• 46:09
  issues. And in this case, I think that
• 46:12
  was that, you know, that was 90% of the case was dealing with
• 46:15
  that part. I got the good fortune of coming
• 46:18
  in and being able to sort of not have to worry about that piece
• 46:21
  'cause they had that. And so I spent my time thinking
• 46:23
  about what is the contrast here? And Miles, I know you, you, you
• 46:28
  try a lot of cases and you have a lot of folks on who try cases.
• 46:31
  And I think that's something to think about.
• 46:32
  If you're going to do these civil rights cases and you're
• 46:34
  going to do ones that are like the logger bales where the harm
• 46:38
  is this emotional psychic harm that's going to stay with these
• 46:42
  people for the rest of their life.
• 46:43
  You have to figure out how do you create the contrast?
• 46:46
  Some good trial lawyers have said, you know, everything is
• 46:48
  compared to what? And so coming up, what the
• 46:51
  comparison is that will allow the jury to fully value the case
• 46:55
  that that is, I think the hard part for a lot of people.
• 46:59
  And why maybe they don't take these cases 'cause they're
• 47:02
  they're not sure. How do you create the contrast
• 47:04
  so that a jury will fully value it?
• 47:06
  And I had the time and luxury of being able to do that 'cause
• 47:09
  Joseph and Brian were doing all the hard work.
• 47:12
  In a related vein, well, the case was worked up.
• 47:17
  I also seem to recall that you had a curveball just before
• 47:20
  closing that the judge decided that there was a standard that
• 47:25
  you're going to have to meet that you had to modify your
• 47:28
  closing for with very limited time beforehand.
• 47:31
  Is that you might remember that accurately.
• 47:34
  So the verdict form required us to show that qualified immunity
• 47:37
  did not apply, which we believed was not appropriate there.
• 47:41
  There is a split, although it seems like more anyhow, again,
• 47:45
  now it's that's a Joseph and Bryan issue.
• 47:48
  But we that was, that was part of our burden was to show the
• 47:51
  qualified immunity didn't apply. And it gets more complicated
• 47:56
  than that. Cause then to do that, we needed
• 47:58
  to show that the police understood that in this
• 48:04
  circumstance, detention wasn't appropriate or something like
• 48:09
  that. Right.
• 48:10
  But you, you would do that based on case law.
• 48:11
  But of course, how would the jury know what the case law is?
• 48:14
  Yeah, it was very. Miles, what you're remembering
• 48:17
  is that after the jury had been charged and was deliberating,
• 48:22
  judge also switched the verdict form and gave it, you know,
• 48:26
  amplified, modified. I wasn't there for that, but I
• 48:29
  think that was that was the issue.
• 48:31
  I'll let Craig or Joseph. I think it was regarding putting
• 48:35
  the county on the verdict form and the the qualified immunity
• 48:39
  issue. We so the Monell claim, I think
• 48:42
  judge also thought for some reason that it only applied to
• 48:45
  the the male officer, the male defendant, but we never limited
• 48:49
  it like that. And so I think we were just
• 48:51
  maybe, you know, with all going, all the stuff going on in trial,
• 48:54
  we didn't catch the the verdict form didn't include that the
• 48:57
  county could be liable for ratifying the act of the the
• 49:01
  female officer who whose liability may have even been
• 49:03
  more clear. She's the one who conducted the
• 49:05
  searches without a warrant. And that was a really clear part
• 49:07
  of the case. We wanted that in there.
• 49:09
  And the judge said you waived it.
• 49:11
  You didn't tell me that was wrong in time.
• 49:13
  But Craig did a good job of convincing him that it just
• 49:15
  wouldn't be fair and that we never actually said that we
• 49:18
  wanted the verdict form that way.
• 49:19
  So it wasn't like we, we asked for the incorrect form.
• 49:23
  And so he he said, I don't, you know, the best thing I can do
• 49:25
  right now is actually just swap the form, call the jury and give
• 49:28
  the jury the new form. There was nothing else to argue.
• 49:30
  He just told the jury what it meant.
• 49:33
  And he reached the same, the same conclusion they probably
• 49:35
  would have, which is the county ratified the ACT by all the
• 49:38
  officers. There was an issue with the the
• 49:40
  qualified. What Craig was alluding to is
• 49:42
  with qualified immunity for for people who don't know, it's a
• 49:46
  two stop, 2 step inquiry. The first step is was there a
• 49:49
  constitutional violation? And if there was, would all
• 49:53
  reasonable officers have known that that what they were doing
• 49:56
  violated the Constitution? In other words, was it clearly
• 49:59
  established, which is typically a legal question for the judge?
• 50:02
  And there were some cases that went the other direction.
• 50:05
  But the the current state of the law in the 9th Circuit is
• 50:08
  whether the law is clearly established is always a a
• 50:10
  question of law for the judge, not for the jury.
• 50:13
  And Judge also had given that question to the jury, which was
• 50:15
  just, we we'd argued very strenuously that that was wrong.
• 50:19
  And so part of Craig's job now, on top of arguing that they
• 50:22
  violated the law, was also that they knew they were violating
• 50:27
  the law and that the law was clear that they were violating.
• 50:29
  So it didn't make a lot of sense.
• 50:31
  Part of the reason for my question was I I recall going
• 50:33
  down to to watch closing and Craig coming out and saying I
• 50:37
  now have to do this new thing and it was a curveball just
• 50:40
  before, just before you were supposed to close.
• 50:43
  We assumed the judge was going to get it right and then he he
• 50:45
  put qualified immunity on the verdict form.
• 50:47
  So it it did come as a surprise to us, but.
• 50:50
  But but as as you've pointed out, given the thematic approach
• 50:55
  that you took with the case and the facts and the bad behavior
• 50:58
  of the deputies and opposing counsel, the jury was going to
• 51:03
  do what it was going to do, it seems like.
• 51:05
  Juries are a funny thing, right? All we get is their results,
• 51:09
  even when we talk to them. That sometimes is we're not
• 51:13
  getting the full skinny on how they got to where they got.
• 51:16
  So it's it's hard to know. But considering the findings, it
• 51:24
  does seem like they were they were on board that there was a
• 51:28
  significant wrong here that needed to be righted and it was
• 51:31
  their job to do it and they were going to figure out how to get
• 51:33
  that done. I recognize the way I asked that
• 51:36
  question. It could be interpreted as as
• 51:38
  that your closing was not impactful.
• 51:41
  What I meant by thematic approach to the case was that
• 51:44
  the work that Joseph and Brian had done to invest that theme
• 51:50
  through the case and for you 3 to deliver it and you Craig to
• 51:54
  deliver it through closing fair. Yeah, Brian is very nice.
• 51:58
  And talking about my closing, I, you know, I'm a big believer
• 52:01
  that the jurors really kind of are heart baked into their
• 52:05
  opinions before you ever get to closing.
• 52:07
  Closing is just a way to, you know, help carry the ball across
• 52:11
  the line for those good jurors who want to do that and convince
• 52:14
  the jurors that maybe aren't leaning that way, that they
• 52:18
  should join them. You know, again, we never, you
• 52:25
  know, you got a good result and you had a good closing.
• 52:28
  It's easy to connect the two, but I'm not sure that that
• 52:30
  follows. And and quite frankly, I think
• 52:33
  the reverse is true as well. I think, you know, you end up
• 52:37
  giving a closing that's less than what you had hoped for and
• 52:40
  you get a bad result. I think we we give a little too
• 52:45
  much credence to the effects of closing and the grand scheme of
• 52:49
  things. I think opening is a far more
• 52:51
  important, important part of the case than the closing is.
• 52:58
  But but that isn't say closing isn't important.
• 53:00
  It just, I think its effect is kind of on the margins, whereas
• 53:04
  opening can really help create that framework that you're
• 53:07
  asking the jury to see the case through.
• 53:08
  And so from that standpoint, it's it's, it has more, it tends
• 53:12
  to have more impact, I think. On the appellate side, did you
• 53:17
  bring in anyone else to do the appellate work or or is that
• 53:21
  something that the three of you handled yourselves in some
• 53:24
  fashion? We brought in an expert on 1983
• 53:30
  our Co counsel Joseph May who I think he memorized the 1500 page
• 53:36
  trial transcript and Joseph took the lead.
• 53:41
  I've handled a couple discrete areas on the appeal, but Joseph
• 53:47
  carried the ball across the finish line and argued the case
• 53:51
  in front of the the 9th Circuit panel here in San Francisco.
• 53:55
  But we we kicked it around. Should we bring in an appellate
• 53:58
  specialist and, and Craig deferred to Joseph and me on
• 54:02
  that and Joseph and I decided, hey, no one knows the case
• 54:06
  better than us collectively and we've briefed most of these
• 54:09
  issues. It's just enhancing or
• 54:12
  amplifying or, or addressing certain narrow issues.
• 54:16
  But there's nothing new that came up on the, on the appellate
• 54:21
  issues. So so we handle that in house
• 54:24
  with with Joseph being the main driver.
• 54:28
  And I'm sorry if they're listening, but when we read the
• 54:31
  appellant's brief, we we also just weren't all that impressed
• 54:35
  or worried. So that helped too.
• 54:38
  In the Department of Chutzpah, my understanding is that once
• 54:44
  the verdict was affirmed on appeal that the county still
• 54:52
  decided it was time to negotiate to try and shave some hundreds
• 54:55
  of thousands off what was owed. Can you eliminate that and and
• 55:00
  how you continued to just have to deal with bureaucratic crap
• 55:05
  for lack of a better description and continue to push for your
• 55:08
  clients? Rights there was a little
• 55:10
  wrinkle in that the 9th Circuit actually remanded 1 issue.
• 55:13
  So I, I, you know, it wasn't as though the, the 9th Circuit said
• 55:16
  we affirm as to all the, the issues the, the judgement
• 55:19
  solidified. They had, they had something to
• 55:21
  continue doing, but I think that almost worked against them
• 55:24
  because it was an issue that we think either didn't matter, that
• 55:27
  we were clearly going to win. And so we would just accrue more
• 55:30
  fees that they would have to pay.
• 55:31
  So I think that that's when they're finally understood.
• 55:34
  But it but yeah, they asked for a small discount and it's at one
• 55:37
  point I, I, I won't name names, but one of us considered
• 55:40
  entertaining it but was outvoted and they paid exactly what they
• 55:44
  owed us. Joseph's leaving at the best the
• 55:47
  flavor here. He had the good fortune of
• 55:50
  fielding the call from a lawyer kind of at a higher level who's
• 55:55
  his job was to resolve the case. And Joseph relayed this to me
• 55:59
  that the, the, the attorney called Joseph and said, OK,
• 56:03
  we've lost on appeal and you know, we need to resolve this
• 56:07
  case and Joseph can correct me. But apparently Joseph just
• 56:12
  didn't respond. And the attorney said, this is
• 56:15
  where you tell me how much it's going to take to resolve the
• 56:18
  case. And so Joseph said, all right,
• 56:21
  well, let me let me get back to you.
• 56:23
  And what we did is we tallied up all the hours that we had
• 56:26
  incurred since Judge Alsup's ruling.
• 56:29
  So all of our appellate hours and interest in it.
• 56:33
  It was an Excel spreadsheet by the time we were done.
• 56:37
  And since you, the attorney was representing the county, this
• 56:40
  call came in late September, said give me a number that's
• 56:43
  good through December 31st because I've got to get it
• 56:46
  through the board and various levels of excess and what have
• 56:49
  you. So we went back and Judge Alsup
• 56:53
  awarded us an hourly rate in 2023.
• 56:57
  He had Craig at 9:50 and me at 8:50 and Joseph at 700.
• 57:02
  So we're now in late 2024. So I suggested that we give each
• 57:07
  of ourselves a 10% raise. And then we, we took those new
• 57:12
  rates, multiplied it by the hours and, and we've, we, we did
• 57:16
  diligent record keeping of all the time we spent and we, we
• 57:20
  presented them with this #11,266,000 and, and change.
• 57:28
  And the other attorney responded and said by e-mail, how about
• 57:35
  11,000,000 flat and we'll call it a day.
• 57:38
  And Joseph and I were indignant. I forget who the third person
• 57:42
  was who said just compromise, but Joseph and I were indignant.
• 57:46
  We had a written settlement offer, so we had to communicate
• 57:49
  it to the client. So I took the lead calling the
• 57:53
  clients and I said the defense wants to steal 1/4 of $1,000,000
• 57:59
  from you. If you're OK with that, we'll
• 58:02
  accept this number. But if you're not and we're
• 58:04
  prepared to keep fighting. And they were righteously
• 58:08
  indignant as as I expected. And we have the leverage.
• 58:12
  And on the plaintiff side, we rarely have the leverage, but
• 58:15
  our position was OK, fight at county.
• 58:18
  We're going to, we're going to have another fee petition in
• 58:20
  front of judge also. And he's going to give us
• 58:22
  something close to what we're asking.
• 58:25
  And the beauty of these civil rights cases is once you've won,
• 58:29
  there's a concept called fees on fees.
• 58:31
  We would get fees for bringing the motion and writing the reply
• 58:35
  brief and showing up at the hearing.
• 58:37
  So it, it would just have kept going.
• 58:39
  And the, the, the higher level attorney for the county realized
• 58:44
  that he, he was just trying to see if he could bought him fish
• 58:48
  a little bit. And Joseph had the I, I, I've
• 58:51
  saved this e-mail as well. The plaintiffs reject your $11
• 58:55
  million offer and the number is, you know, blah, blah, blah.
• 59:00
  And 62 cents was the final. And to his credit, the the
• 59:06
  attorney responded two hours later deal.
• 59:10
  And he had the authority all along, but he was just he was
• 59:13
  just fishing. But that was.
• 59:15
  And on the plain side, you'd never were never, you know,
• 59:19
  completely in the driver's seat. There's always some risk.
• 59:22
  There's always some ability something could go wrong.
• 59:26
  But Joseph right. Like we, we've we've been in the
• 59:29
  slog far too long. We're not we're not taking the
• 59:32
  our feet off their necks at at at this late juncture.
• 59:37
  So they they paid that to the penny and.
• 59:42
  That's all in contrast to them just before trial offered
• 59:46
  something just shy of a million, right, I think.
• 59:49
  There was a primary $1 million policy and it's called a wasting
• 59:54
  policy, which means as defense costs are incurred, that reduces
• 1:00:01
  the $1,000,000. So the time we got to trial, the
• 1:00:04
  same attorney who ultimately settled the case for the county
• 1:00:07
  said, I, you know, I hear you. We had, we're on a Joseph and I
• 1:00:10
  were on a call with them, just said this is all I can do.
• 1:00:13
  I can't get any more authority. Here's 760,000 bucks or
• 1:00:18
  something like that. And Joseph?
• 1:00:22
  And I politely told that that ship has sailed.
• 1:00:25
  Because at that point, arguably, it wouldn't have even covered
• 1:00:27
  attorneys fees, Probably so. Yeah.
• 1:00:31
  We were over a million in fees at that point.
• 1:00:35
  Before trial, but that's also in contrast to people saying they
• 1:00:39
  thought the case was worth, you know, my informal focus group of
• 1:00:43
  a bunch of trial lawyers was like 200 two, 50,000 total for
• 1:00:47
  all three. So good for Joseph and Brian
• 1:00:51
  saying, yeah, we're going to. Our forge ahead.
• 1:00:56
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• 1:00:59
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• 1:01:02
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• 1:01:15
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