Latest / Unscripted Direct / Episode 158 - How Much Do the Merits Matter in Mock Trial?

Transcript

Episode 158 - How Much Do the Merits Matter in Mock Trial? · Unscripted Direct

0:00
SPEAKER_03: Unscripted Direct is brought to you by Walk Up, Melodia, Kelly, and Schoenberger.
0:05
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0:12
SPEAKER_03: Oh, it throws a little pause.
0:13
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0:16
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0:16
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0:18
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0:20
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0:22
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0:24
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0:26
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0:30
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0:33
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0:37
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0:40
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0:44
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0:45
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0:46
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0:46
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0:47
SPEAKER_03: Trial Epic Community.
0:58
SPEAKER_03: Welcome to Unscripted Direct.
1:00
SPEAKER_04: I'm Spencer Palkey from Berkeley Law.
1:02
SPEAKER_03: I'm Justin Bernstein, UCLA.
1:04
SPEAKER_03: This week we have results from three competitions, including the first six bids to All-Star Nationals.
1:09
SPEAKER_03: We have some case balance numbers from All-Star and results of an experiment with interviews with Baylor's Dave Dickinson and St.
1:15
SPEAKER_03: Mary's Marion Riley.
1:16
SPEAKER_03: But first, one of my favorite games, where in the world is Spencer Palkey?
1:20
SPEAKER_03: Are you back in San Francisco?
1:21
SPEAKER_03: 24 hours worth.
1:22
SPEAKER_04: Heck yeah.
1:22
SPEAKER_04: Okay, where were you before?
1:24
SPEAKER_04: I was in New York over the weekend.
1:25
SPEAKER_04: Uh, but by way of Austin, where I got to hang out with, as promised.
1:29
SPEAKER_04: He he he didn't stand me up with Mike Golden.
1:31
SPEAKER_04: You just do weekend jaunts to the Big Apple?
1:34
SPEAKER_04: Uh, you know, occasionally.
1:36
SPEAKER_04: Uh tell us, what did you do in Austin other than hang out with Mike?
1:38
SPEAKER_04: Oh, other than Mike, yes.
1:40
SPEAKER_04: Well, I got to speak to many UT law students about plaintiff's practice, which was wonderful.
1:45
SPEAKER_04: Then we did a happy hour and chatted with a couple dozen folks about their past the plaintiff's side.
1:49
SPEAKER_04: Um, you know, for people who are interested, they could find a whole podcast called Cause of Action on this very topic.
1:54
SPEAKER_03: Nice.
1:55
SPEAKER_03: Uh did he take you somewhere uh delicious?
1:58
SPEAKER_04: He did.
1:58
SPEAKER_04: We went to um uh uh style switch, switch.
2:02
SPEAKER_04: I'll look it up.
2:02
SPEAKER_04: Let's see.
2:03
SPEAKER_04: Style switch?
2:03
SPEAKER_04: I think it's something switch, style switch, Austin.
2:06
SPEAKER_04: Yeah, you're right.
2:07
SPEAKER_04: I got it right.
2:07
SPEAKER_04: Style switch boy with an I, S-T-I-L-E S.
2:11
SPEAKER_04: It was excellent barbecue.
2:12
SPEAKER_04: I loved it.
2:13
SPEAKER_04: Um and uh, you know, the ambiance was just right.
2:17
SPEAKER_03: Great.
2:18
SPEAKER_03: And then in New York, what were you doing there?
2:19
SPEAKER_04: I gotta say, speaking of ambiance though, uh we went to a bar afterwards called La Laws.
2:23
SPEAKER_04: I don't know if anybody's been to La Laws in Austin, but it is a Christmas themed bar.
2:28
SPEAKER_04: And it's not like a, I shouldn't theme kind of makes it sound like it's just like here and there.
2:32
SPEAKER_04: It's it is a Christmas world, no matter the time of the year.
2:35
SPEAKER_04: And just like you have like Irish pubs that have like the countdown to St.
2:38
SPEAKER_04: Patrick's Day up there, you know, like a screen or like a number counting down, timer, that's what they have for Christmas.
2:43
SPEAKER_04: So there's a countdown to Christmas.
2:44
SPEAKER_04: So I don't know, there must be a big party Christmas Eve at La La's.
2:46
SPEAKER_04: I didn't get that far, but uh, it was great.
2:48
SPEAKER_04: I wonder if they're less busy on Christmas.
2:50
SPEAKER_04: I know.
2:52
SPEAKER_04: I don't know.
2:53
SPEAKER_04: I'm I you know I'm not sure.
2:54
SPEAKER_04: Or or at least it's a different crowd.
2:56
SPEAKER_04: Yeah, you would think.
2:57
SPEAKER_04: Um, did you know that Mike is a a a magnate in Austin?
3:02
SPEAKER_04: Uh, and that he uh is in the ownership of many uh establishments that serve adult beverages.
3:07
SPEAKER_04: Did you know that?
3:08
SPEAKER_03: No.
3:08
SPEAKER_03: How how many are how many are we talking about?
3:10
SPEAKER_04: Like eight, eight, ten or something?
3:12
SPEAKER_03: Okay, good, because many is defined as eight or more.
3:14
SPEAKER_04: Okay, well then I'll come.
3:16
SPEAKER_04: I'm glad I'm not violating the uh numerical beliefs there.
3:18
SPEAKER_04: I'm glad too.
3:19
SPEAKER_04: Yeah, yeah.
3:20
SPEAKER_04: Um, yeah.
3:21
SPEAKER_04: Also, I will say it's pretty fun to be on UT's campus uh because students love Mike there, you know.
3:27
SPEAKER_04: And and he didn't pay me to say this.
3:28
SPEAKER_04: He offered to.
3:29
SPEAKER_04: No, he didn't.
3:30
SPEAKER_04: But like you just like everybody knows Mike Golden, you know, and he in fact walked by at one point and I'd like, hey, that's Mike.
3:35
SPEAKER_04: You know Mike?
3:36
SPEAKER_04: I'm like, yeah, of course I know Mike.
3:37
SPEAKER_04: I'm having dinner with him.
3:38
SPEAKER_04: But uh it's pretty cool to see somebody in their space uh being a celebrity.
3:41
SPEAKER_04: So it's fun.
3:42
SPEAKER_04: That's very cool.
3:43
SPEAKER_04: And then in New York?
3:44
SPEAKER_04: New York, well, we took uh Penny, friend of the pod, my mom.
3:47
SPEAKER_04: Uh we'd uh you know made a uh a birthday gift to her about a year ago.
3:52
SPEAKER_04: Um it's her birthday's coming up yet again.
3:55
SPEAKER_04: Um, that we were gonna take her.
3:56
SPEAKER_04: Me and my brother and sister, friends of the pod, uh, we're gonna take her to um New York for the weekend.
4:00
SPEAKER_04: And we did.
4:01
SPEAKER_04: It was fun.
4:01
SPEAKER_03: Uh you told me you had a uh a recording studio as part of this trip.
4:06
SPEAKER_03: Yes, tell tell us about it because I think this is super fun.
4:08
SPEAKER_04: Yeah, and I so I'll tell you what I did and then I'll give a recommendation.
4:11
SPEAKER_04: So, you know, lately I've been doing a lot of interviews for you know podcasting purposes in studios, which are actually not very expensive and are really like really cool places to just record stuff, record conversations that are meaningful to you.
4:23
SPEAKER_04: And many of them we share here.
4:25
SPEAKER_04: Um, but I got to thinking, well, why not uh why not do that with my mom?
4:29
SPEAKER_04: And so we interviewed my mom at a recording studio um in downtown uh in Manhattan.
4:34
SPEAKER_04: And it was so cool to get to just talk to her about, you know, her past and you know, where she's how she became the person she is, and hopefully get some insights into how we became the people we are.
4:45
SPEAKER_04: And you know, that's just like our recording for our own sake, but it's not expensive, and I think it was really meaningful.
4:49
SPEAKER_04: I would highly recommend that folks out there just interview somebody and you can do it cheaply in a podcast studio.
4:55
SPEAKER_04: So it was fun.
4:56
SPEAKER_03: That's really, really sweet.
4:57
SPEAKER_03: And I hope that this is the first recording of yours that she listens to.
5:01
SPEAKER_04: Well, no promise.
5:03
SPEAKER_04: We gotta do that with Anita.
5:05
SPEAKER_04: That'd be fun.
5:05
SPEAKER_04: You should do that.
5:06
SPEAKER_04: You should do that.
5:06
SPEAKER_04: Thank thanks a lot.
5:07
SPEAKER_04: Just Anita's just planting, Justin that he's going to do this.
5:11
SPEAKER_03: Thank you.
5:12
SPEAKER_03: Well, my mom has a big birthday coming up this year.
5:14
SPEAKER_03: Well, the timing is perfect then.
5:16
SPEAKER_03: Guess which one it is, Spencer?
5:17
SPEAKER_04: Um, let's see.
5:18
SPEAKER_04: 45.
5:19
SPEAKER_04: I think we're both turning 45 this year, right?
5:21
SPEAKER_04: Uh the math doesn't work out very well, doesn't it?
5:24
SPEAKER_04: Yeah.
5:24
SPEAKER_03: Well, what's the right answer then?
5:25
SPEAKER_03: I don't know.
5:26
SPEAKER_03: Uh it's her second 40th birthday.
5:28
unknown: Wow.
5:28
SPEAKER_03: Wow.
5:29
SPEAKER_03: That's a good way to put it.
5:30
SPEAKER_03: I like it.
5:30
SPEAKER_03: Yeah, I like it.
5:31
SPEAKER_03: Yeah, we're excited.
5:32
SPEAKER_03: Uh well, I'm glad you're back.
5:34
SPEAKER_04: Yeah, me too.
5:36
SPEAKER_04: Um, what are you up to?
5:37
SPEAKER_04: What do you got going on?
5:38
SPEAKER_04: Uh, you know, teaching, coaching, eating.
5:41
SPEAKER_04: Which which order?
5:42
SPEAKER_03: Uh, sometimes at the same time.
5:44
SPEAKER_03: Okay, okay.
5:44
SPEAKER_03: That's good.
5:45
SPEAKER_04: Yeah.
5:46
SPEAKER_04: Um, like I hate it.
5:48
SPEAKER_03: I hate it when a student asks a question.
5:49
SPEAKER_03: I'm like, I'm chewing, you know.
5:51
SPEAKER_03: I'll just like put a finger up, like just a second.
5:53
SPEAKER_03: And you're like, but I'm not counting.
5:54
SPEAKER_03: But what do you all what do you all think?
5:57
SPEAKER_04: We think you're wasting brilliance on this bite.
5:59
SPEAKER_04: Could you please swallow it so you can share us some image of what you're saying?
6:03
SPEAKER_04: Um, that's great.
6:04
SPEAKER_04: Um, when you say working, though, that's got a bit of a broader definition.
6:07
SPEAKER_04: Um, because uh consulting works in that.
6:10
SPEAKER_04: Well, you got any cases uh in the hopper?
6:12
SPEAKER_03: It's been a really busy semester.
6:14
SPEAKER_03: I I try to do more consulting over the summer, less during the school year.
6:17
SPEAKER_03: Uh, but as you know, yeah, as you know, trial calendars are hard to control.
6:21
SPEAKER_03: So I was helping with an arbitration against a nursing home that just finished.
6:25
SPEAKER_03: Uh, helping on a wrongful death product liability case that's in trial right now.
6:29
SPEAKER_03: Uh by the time this episode comes out, I think we'll be closing.
6:31
SPEAKER_03: Uh, three cases coming up employment discrimination, healthcare discrimination, and a personal injury case with you.
6:37
SPEAKER_04: Oh, I know.
6:38
SPEAKER_04: And man, it's I love getting work with you in so many ways.
6:41
SPEAKER_04: But um uh, you know, everybody needs a guru, you know.
6:44
SPEAKER_04: Justin's pretty good at it.
6:45
SPEAKER_03: Well, I thank you.
6:46
SPEAKER_03: I I am excited for this one to be over because then we can talk about some of it.
6:49
SPEAKER_03: Um and and I think people will enjoy hearing why I was so excited to take to work on this case in particular.
6:55
SPEAKER_04: Yes, I imagine so.
6:56
SPEAKER_03: Yes, yes.
6:57
SPEAKER_03: A pretty, pretty uh nefarious um defendant.
7:00
SPEAKER_03: Okay.
7:00
SPEAKER_03: Uh, should we talk about some fake results instead of talking about real trials?
7:03
SPEAKER_04: Some fake real results.
7:04
SPEAKER_04: Let's do it.
7:05
SPEAKER_03: That's right.
7:05
SPEAKER_03: Real results, fake trials.
7:06
SPEAKER_04: Yeah, exactly.
7:07
SPEAKER_04: It's time for part of the bird.
7:16
SPEAKER_04: We had the Colorado for Denver's Summit Cup.
7:19
SPEAKER_04: The most professional team present, at least according to the results, was Texas Southern.
7:24
SPEAKER_04: Third place was Stetson.
7:26
SPEAKER_04: Finalist, UCLA, heard of them, and winner, Texas.
7:29
SPEAKER_04: Congratulations, Mike and Yu Longhorns.
7:31
SPEAKER_03: We moved to Florida for the national free trial competition.
7:34
SPEAKER_03: The semifinalists were Baylor and Illinois Chicago, finalist Chapman, and the winner, Buffalo.
7:40
SPEAKER_03: Congratulations to Jim and Lisa.
7:43
SPEAKER_03: Phenomenal result.
7:44
SPEAKER_04: No doubt.
7:44
SPEAKER_04: All right, now it's time for the largest fall invitational, the all-star bracket challenge.
7:49
SPEAKER_04: 48 of the 64 teams, that is three-quarters, competed this weekend with the other 16 competing next weekend.
7:56
SPEAKER_03: Nice math.
7:57
SPEAKER_03: In his head, in his head, he did three-quarters in his head.
8:00
SPEAKER_04: That part was easy.
8:01
SPEAKER_04: The other part, there's no notes around here or anything.
8:03
SPEAKER_04: Um, but there was certainly not an indication in this note that it should have a pause before saying next weekend.
8:08
SPEAKER_04: It just said the wrong word in front of it.
8:10
SPEAKER_04: Anyway, or it would have existed.
8:12
SPEAKER_04: These teams were the finalists.
8:13
SPEAKER_04: Pepperdine, UC Law SF, Nebraska, Go Big Red, Regent, and Rutgers.
8:18
SPEAKER_04: And these six teams are headed to Nationals in San Antonio.
8:21
SPEAKER_04: They are Cumberland, Arizona, UCLA, and UCLA, Houston, and Western State.
8:27
SPEAKER_04: Love it.
8:28
SPEAKER_04: But that's not all.
8:29
SPEAKER_04: Justin, I understand that you lost a$20 bet to Brett Bain.
8:33
SPEAKER_04: You want to share any details?
8:34
SPEAKER_04: No.
8:35
SPEAKER_04: Boy, that does not beg any questions at all.
8:37
SPEAKER_04: I wonder if Brett will be able to share the answers to that with us.
8:40
SPEAKER_04: Probably.
8:41
SPEAKER_03: I've sworn Brett to secrecy.
8:43
SPEAKER_03: I can confirm that we had a bet.
8:44
SPEAKER_03: I can confirm that he won.
8:46
SPEAKER_03: I confirm that he has$20.
8:48
SPEAKER_04: Is this is this like a release agreement?
8:50
SPEAKER_04: Like some sort of confidentiality thing?
8:52
SPEAKER_04: That was part of the bet.
8:53
SPEAKER_04: Well, that is a lame bet.
8:56
SPEAKER_04: Good job, Brett.
8:57
SPEAKER_04: Uh, what's it gonna cost to uh get the story out of you?
8:59
SPEAKER_04: It's gonna be worth way more than the 20 bucks.
9:01
SPEAKER_04: I'm sure we can figure that out.
9:02
SPEAKER_03: Britt, all right.
9:03
SPEAKER_03: Brett Brett's a man of his word.
9:04
SPEAKER_03: I trust Brett.
9:05
SPEAKER_04: Yeah, but Britt, Britt's our guy.
9:06
SPEAKER_04: Britt's gonna get this for me.
9:08
SPEAKER_03: Britt has loose lips.
9:10
SPEAKER_04: Exactly.
9:12
SPEAKER_04: All right.
9:12
SPEAKER_04: Okay, so talking about All-Star now, you said this was a criminal case, but of course I heard there was something unusual about how you and Phil wrote it.
9:21
SPEAKER_04: What?
9:22
SPEAKER_03: Yeah.
9:22
SPEAKER_03: So the case originated as part of our one-on-one summer competition, Trial by Combat.
9:26
SPEAKER_03: It's our version of Top Gun.
9:28
SPEAKER_03: Um, and it's for the college students.
9:31
SPEAKER_03: So we held uh this year at UCLA, we alternate between Drexel and UCLA, and we decided to do something fun for the students during their 24-hour prep.
9:39
SPEAKER_03: We gave them the case, and it was only about 12 pages, as opposed to a Top Gun case, which is about you know 12 volumes.
9:44
SPEAKER_04: Wow.
9:45
SPEAKER_04: Yeah.
9:45
SPEAKER_04: Yeah.
9:45
SPEAKER_03: So 12 pages, a few witness statements, super short, no exhibits.
9:49
SPEAKER_03: Because we had staged a crime scene in one of the faculty offices, and the students had time slots where they could go take photos.
9:56
SPEAKER_03: Uh, and it wasn't just a site visit, those photos were the evidence they were allowed to use at trial.
10:00
SPEAKER_03: That's cool.
10:01
SPEAKER_03: Yeah.
10:01
SPEAKER_03: So it was like sort of a reverse escape room.
10:03
SPEAKER_03: Uh the evidence was hidden in there for them to find.
10:06
SPEAKER_03: So they had to find the murder weapon, find the blood spatter, find the fingernail of the victim and the uh the photos of the affair and the gift bag and the receipts and the coffee cup and the fridge.
10:16
SPEAKER_03: Like all of it was planted for them to find.
10:18
SPEAKER_03: And they'd each get two rounds of of looking for stuff.
10:20
SPEAKER_03: So if they didn't catch it the first time, they hit one more bite of the apple.
10:23
SPEAKER_04: Okay, I gotta pause on the trial by combat thing here because that is awesome.
10:26
SPEAKER_04: How well did that work out?
10:27
SPEAKER_04: Like, you know, students getting into evidence and laying a foundation and and you know, everybody's exhibits being a little bit, you know, not as good as the other, or maybe better, or maybe this one's fuzzy, or the angle's wrong, or so it ended up working out really smoothly because there were a couple teams that the first time they would take the photos, they were like, oh, this is important, but we didn't get a great snapshot of it.
10:46
SPEAKER_03: Well, they had a second bite, so they were allowed to go back and during their second half hour, they could go in and or the second 12 minutes, they can go in and they knew what they were looking for, and they can make sure to get really good photos of the stuff that was important to them.
10:58
SPEAKER_03: Uh and then in terms of admission admission to trial, the deal was that any photos taken by either team were automatically deemed to have been taken by the police in that case.
11:06
SPEAKER_03: So that the officer, even if you were on cross, had to authenticate your photos and the defendant had to authenticate the photos of being from their office.
11:14
SPEAKER_03: But we'd spelled out in the case which things the defendant could disavow and be like, I've never seen that in my office.
11:18
SPEAKER_04: That is awesome.
11:19
SPEAKER_03: Yeah.
11:19
SPEAKER_03: The tricky part was referencing the items in the case enough that people could find most things easily, but not referencing things too explicitly because we wanted there to be still some excitement and surprise about you know actually finding things in the office.
11:33
SPEAKER_04: Also just like the logistics of numbering the exhibits too.
11:36
SPEAKER_04: I don't know if you had like you know numbers and letters or if you had to have a joint exhibit list for each trial or right.
11:41
SPEAKER_03: So they had to number them on their own before the trial, um, numerical uh for state and alphabetic for defense.
11:48
SPEAKER_04: That's cool.
11:49
SPEAKER_03: Yeah.
11:50
SPEAKER_04: All right.
11:50
SPEAKER_04: So that's super cool to do that for trial by combat, but not really very feasible to do it uh for a Zoom competition like um the All-Star Bracket Challenge.
12:00
SPEAKER_04: So what'd you guys do?
12:02
SPEAKER_03: Well, as everybody knows, AJ uh Bolito DeLuna was one of the hosts of All-Star, and he's talked about his budget openly on the listserv.
12:08
SPEAKER_03: So we thought about just flying everybody to Los Angeles for the competition and yeah, twice, right?
12:14
SPEAKER_03: You know, 12-minute increments, fly them back, bring them back out, and then having them compete on Zoom.
12:18
SPEAKER_03: You know, we'd buy them computers.
12:19
SPEAKER_03: Yeah.
12:19
SPEAKER_03: Um but decided actually, since I took a master set of photos before the trial by combat competition, we would just use those for the case.
12:27
SPEAKER_04: Yeah.
12:27
SPEAKER_03: AJ wanted to fly everybody, but I said, let's just save the money.
12:30
SPEAKER_04: So yeah, yeah, save for nationals, right?
12:32
SPEAKER_03: Yeah.
12:32
SPEAKER_03: So we included all those photos in the case and then adapted it for a two-on-two competition.
12:36
SPEAKER_04: Got it.
12:36
SPEAKER_04: Okay.
12:36
SPEAKER_04: Well, nicely done, guys, and very creative.
12:38
SPEAKER_03: Thanks.
12:39
SPEAKER_04: Um, how did shake out?
12:40
SPEAKER_04: Uh, and when I say shake out, I mean what's the balance from the trials?
12:44
SPEAKER_03: Uh it was 48% for the prosecution and 52% for the defense.
12:49
SPEAKER_04: That is excellent.
12:50
SPEAKER_04: So you did something unusual with this year's ballot.
12:53
SPEAKER_04: First of all, would you like to tell us about it?
12:55
SPEAKER_03: Yeah, I don't have any uh NDA for this one, so I can share.
12:58
SPEAKER_03: Great.
12:59
SPEAKER_03: Please tell us about it.
13:00
SPEAKER_03: Great job laying the foundation there.
13:01
SPEAKER_04: That was very that was really good.
13:02
SPEAKER_04: Well, I only struggled that my students are working on that right now.
13:05
SPEAKER_04: It's like, I just don't like a close-ended question leading to an open-ended response, even though it happens all the time.
13:09
SPEAKER_04: Just seems inartful to me.
13:10
SPEAKER_04: Don't like it.
13:10
SPEAKER_04: So anyway.
13:11
SPEAKER_03: That was great.
13:12
SPEAKER_03: Yeah, that was nice.
13:13
SPEAKER_03: Yeah, yeah.
13:14
SPEAKER_04: Go ahead.
13:14
SPEAKER_03: Okay.
13:14
SPEAKER_03: Uh so the last question on the ballot after they've completed the scores and their advocate ranks is uh, how do you find the defendant in this case?
13:21
SPEAKER_03: What is your verdict, guilty or not guilty?
13:23
SPEAKER_03: And we make it clear that uh this has nothing to do with their their evaluation of who won the trial, and it's purely for research purposes.
13:30
SPEAKER_04: Okay.
13:31
SPEAKER_04: Uh just the binary guilty, not guilty.
13:34
SPEAKER_03: Correct.
13:34
SPEAKER_04: Is it on the same page as their scores that they would have seen?
13:37
SPEAKER_03: Um I don't remember.
13:39
SPEAKER_04: Good question.
13:40
SPEAKER_03: Yeah.
13:40
SPEAKER_04: All right.
13:41
SPEAKER_04: Uh and what were the results?
13:43
SPEAKER_03: There was a statistically significant correlation between the scores that were given, who they had winning the round, or I should say what the margin of victory was, and the verdict.
13:53
SPEAKER_03: It was a 0.52 correlation across 260 ballots.
13:57
SPEAKER_04: Okay, so what's that mean?
13:58
SPEAKER_04: A 0.5, I'm I'm not being statistically inclined.
14:01
SPEAKER_04: I'm reading that as about half got it right.
14:04
SPEAKER_04: Is that wrong?
14:05
SPEAKER_03: Uh I don't want to say got it right, got it wrong, but the correlation means two things.
14:09
SPEAKER_03: It means one, we can say generally that there is a moderate correlation uh between the two statistics, their scores on the ballots and their verdict.
14:18
SPEAKER_03: Uh and the second is we if we were going to be precise about the number, we'd say that approximately 27% of the data is explained by the judge's verdict.
14:28
SPEAKER_03: Now, that doesn't tell us which way causation runs, right?
14:30
SPEAKER_03: So you can imagine that their predisposition toward one side or the other or their view of the facts is coloring their their um evaluation of the advocates.
14:38
SPEAKER_03: It's also possible that the their evaluation of the advocates is coloring their verdict, or it's possible that uh both things are being driven by the facts of the case.
14:46
SPEAKER_03: It's it's hard to separate exactly what's causing what.
14:48
SPEAKER_04: If it had been a 1.0 correlation, would that mean that everybody said that if I if you know I also I found for the defense and also I think the defendant was guilty and vice versa, and it was like every in every single circumstance, is that what that means?
15:03
SPEAKER_03: In the way I was measuring it, wasn't just by who you had winning the ballot, but by how much.
15:06
SPEAKER_03: So if you were gonna have a perfect perfect 1.0 correlation, I think it would have to be that uh everybody who voted for voted guilty had the exact same uh score for prosecution, and everybody who voted uh defense would have to have this exact same winning score for defense.
15:20
SPEAKER_03: Whoa, you mean like numerical score?
15:22
SPEAKER_03: Right, margin of victory, right?
15:23
SPEAKER_04: Wow.
15:24
SPEAKER_04: Um, so what do you take from this?
15:25
SPEAKER_04: Like what's uh what's this mean to you?
15:27
SPEAKER_03: I think it means a few things.
15:28
SPEAKER_03: We know that merits matter, right?
15:30
SPEAKER_03: We know that because when we do mock trials all the time, we see that uh imbalances in the facts lead to imbalances and outcomes.
15:36
SPEAKER_03: Um, but I try to dig a little deeper and see if we could figure out what was driving what was it whether the performances were leading the judges to have opinions about the case, or whether the opinions about the case were driving their evaluations of the advocates.
15:50
SPEAKER_03: So I looked at the individual scorers who were judging multiple rounds to see if their verdicts were consistent from round to round.
15:55
SPEAKER_03: Because you'd think if if they were just, you know, the kind of person who thought the defendant was guilty in this case, well, that would be true every time they they judged, or vice versa.
16:03
SPEAKER_03: And 75% of the time when someone judged a second round, their verdict was the same.
16:07
SPEAKER_03: But 25% of the time their verdict switched, which tells us that at least some of what's happening with their verdict is influenced by the advocacy.
16:14
SPEAKER_04: And by verdict, you mean their actual who do I think this person was guilty or not?
16:18
SPEAKER_03: Correct.
16:19
SPEAKER_04: That is interesting.
16:20
SPEAKER_04: Huh.
16:20
SPEAKER_04: So yeah, most of the time it doesn't seem like it is, but but sometimes it may be that uh the presentation or you know, however they were feeling uh resulted in them to change their their verdict.
16:33
SPEAKER_04: Yeah.
16:33
SPEAKER_03: Question for you.
16:34
SPEAKER_03: How much do you think merits matter in Montreal in terms of outcomes?
16:38
SPEAKER_04: I think it depends on who's judging.
16:40
SPEAKER_04: Um, I think folks who have you know are more in the community, uh, you know, currently coaching or you know, coach recently or you know, just involved, I think the merits seem to matter less.
16:50
SPEAKER_04: Um but if it's folks who are not involved in community, I think they without war, you know, without proper warnings and such tend to matter more.
16:59
SPEAKER_03: Um when you say commu community, do you mean on the education side or people who judge frequently?
17:04
SPEAKER_04: Um I guess I mean people who are people who are frequently involved in I guess maybe it's judge frequently.
17:11
SPEAKER_04: Um but I don't know, people who are judge or coach frequently.
17:14
SPEAKER_04: I guess if you coach doesn't mean you judge, but you have a I think it's just if you're more in touch with the activity, I think the merits matter less.
17:20
SPEAKER_04: If you're less in touch with the activity, I think the merits tend to matter more.
17:23
SPEAKER_04: So my guess would be.
17:24
SPEAKER_04: Yeah, what do you think?
17:25
SPEAKER_03: I think that's largely true.
17:27
SPEAKER_03: Um, I think that coaches probably have a better sense than uh even practitioners who judge frequently.
17:31
SPEAKER_03: I mean, for example, the American College of Trial Lawyers has uh lawyers who've been selected because of their trial success.
17:37
SPEAKER_03: And the people who judge at two LA nationals every year are really experienced at judging mantra.
17:42
SPEAKER_03: I mean, many of them come year after year, some of them have been doing this for decades.
17:45
SPEAKER_03: And yet we saw a three-year run where there was a 40% win rate for the prosecution or plaintiff every single year, no better than 40%, and sometimes way worse.
17:54
SPEAKER_03: And so I think that people tend to think that they can separate the merits from what they're seeing.
17:59
SPEAKER_03: Uh but it's hard not to be more impressed by an advocate who's more persuasive.
18:02
SPEAKER_03: And being persuasive, you know, is really assisted by having better facts.
18:05
SPEAKER_04: Yeah, yeah, that's true.
18:06
SPEAKER_04: It's funny, and but also like if you teach a lot and you're you you see a lot of trials, you know, and mock trials that kind of thing.
18:12
SPEAKER_04: I yeah, it does make it seem easier to just appreciate the uh the what is happening with the facts that exist, you know, um, than to get, you know, sort of you know, overtaken by the facts themselves.
18:24
SPEAKER_04: But uh that's a good that's a good experiment.
18:26
SPEAKER_04: Uh Justin, I'm glad you did it.
18:28
SPEAKER_03: Yeah, I've been trying to to add questions like that to more ballots uh to see what we can learn.
18:33
SPEAKER_03: It's easier in civil cases, especially where there's allocated liability, because then you're not just dealing with the binary guilty, not guilty, but you can more easily figure out a correlation when you're looking at a range of percentages.
18:43
SPEAKER_04: So more to come.
18:45
SPEAKER_04: You're such a nerd.
18:46
SPEAKER_04: It's true.
18:48
SPEAKER_03: Well, speaking of more to come, we had the chance to I was I was afraid you're gonna say speaking of a nerd.
18:52
SPEAKER_03: I was gonna say that.
18:53
SPEAKER_03: That'd be that's mean, Spencer.
18:55
SPEAKER_03: Well, you can do this transition if you want.
18:57
SPEAKER_04: No, you're you were doing great.
19:00
SPEAKER_04: Speaking of more to come, uh, no commentary on any nerdiness.
19:04
SPEAKER_04: Uh, we got the chance to speak with Dave Deakinsen from Baylor Law this week.
19:08
SPEAKER_04: It was great to get to learn more about Dave.
19:10
SPEAKER_04: Sure was.
19:16
SPEAKER_04: Please introduce yourself to the jury, sir.
19:18
SPEAKER_01: Good afternoon, ladies and gentlemen.
19:20
SPEAKER_01: My name is Dave Deakin and I'm a lawyer.
19:23
SPEAKER_04: Well, you've already knocked one thing off the list, a lawyer.
19:25
SPEAKER_04: But what what be a little be a little more descriptive?
19:27
SPEAKER_04: What kind of lawyer are you, sir?
19:29
SPEAKER_01: I practice primarily uh in the courtroom.
19:33
SPEAKER_01: I'm a trial lawyer.
19:34
SPEAKER_01: I do a lot of defense, a lot of plaintiff uh I get hired to try cases and help people try cases, so I consider myself a trial lawyer.
19:42
SPEAKER_04: And it's not just limited to obviously your practice uh for yourself in the courtroom.
19:48
SPEAKER_04: That's not in fact how we know you.
19:49
SPEAKER_04: We know you because of your very large role of Baylor Law.
19:52
SPEAKER_04: Tell us about that.
19:53
SPEAKER_01: I have been, I think it's been almost 15 years now that I've been working with Baylor.
19:58
SPEAKER_01: Um, as my wife calls it, my second job that uh makes her a mock trial where I've been working with the Baylor Law School's mock trial program and their PC advocacy program.
20:09
SPEAKER_01: On the side working with students and coaching a couple national teams each year.
20:13
SPEAKER_03: Dave, where'd you grow up?
20:14
SPEAKER_01: I grew up outside Chicago, Illinois until I came down to Texas to go to Baylor.
20:18
SPEAKER_03: Uh how old were you when you moved from Chicago to Texas?
20:23
SPEAKER_01: I was a I I literally moved to go to Baylor as a freshman in college, so I was 18, coming down to Texas for the first time to attend college and then never left.
20:34
SPEAKER_03: Okay, so I I I was gonna ask you this later, but I I think now is the right time.
20:37
SPEAKER_03: Rob Little suggested that we ask you about the fact that you were uh a lifelong Cubs fan, even though you spent practically your whole life in Texas.
20:45
SPEAKER_03: That's according to Rob.
20:46
SPEAKER_03: But but it sounds like the truth is it makes sense for you to be a Cubs fan because that's that's where you grew up.
20:51
SPEAKER_01: Exactly.
20:52
SPEAKER_01: I grew up going to Cubs games, and although I've spent the vast majority of my life, I can honestly say I was a Cub fan when being a Cub fan wasn't cool.
21:01
SPEAKER_03: That that that's a large part of the Cub history, like a large percentage when it wasn't cool.
21:06
SPEAKER_03: Unfortunately, yes.
21:07
SPEAKER_03: Well, I I I think there's two lessons to be learned here.
21:10
SPEAKER_03: One is stick with something, it may pay off, right?
21:12
SPEAKER_03: You guys had the big World Series win a few years ago.
21:15
SPEAKER_03: And the second lesson is don't trust Robert Little.
21:17
SPEAKER_01: I I agree with both of those statements.
21:20
SPEAKER_04: What did your parents?
21:20
SPEAKER_04: Oh, sorry, go Spencer.
21:21
SPEAKER_04: I'm just curious, did you have Texas connections before you went on down to Baylor, or was it just the Chicago boy headed off to Texas to check it out?
21:28
SPEAKER_01: I had, I don't know, Texas connections.
21:31
SPEAKER_01: Uh we have five kids, and out of uh five, uh two of my older brothers, one went to Texas AM and one went to Baylor and was uh he was going for medicine and he told me he knew I wanted to be a lawyer.
21:44
SPEAKER_01: He said, If you want to be a lawyer, that's a real lawyer in the courtroom, you need to go to Baylor law school.
21:48
SPEAKER_01: So that's what kind of directed me to go to Baylor under Wow, well he was right about that.
21:52
SPEAKER_04: Uh so I always like to find out.
21:53
SPEAKER_04: I mean, what did your what what did your folks do?
21:56
SPEAKER_04: Uh if you know, three fifths of the kids went off to Texas and became professionals.
22:00
SPEAKER_04: What what about your folks?
22:01
SPEAKER_01: Uh my dad, World War II uh pilot flew in World War II, uh, was a chemical engineer by uh education and trade, worked in the primarily uh the printing industry uh for most of his career in the research and development.
22:18
SPEAKER_01: Uh one of the things he did, uh two of his big accomplishments were he brought the first laser printer that uh ever was in the United States from Germany to the United States, uh, and set it up for the company he worked for.
22:32
SPEAKER_01: And then another uh he was he had a bunch of patents, but one of his patents was if you guys ever saw the uh jelly discs or the the discs that uh were between uh cup uh trucks and trailers or railroad cars and railroad cars, yeah.
22:47
SPEAKER_01: Yeah, he invented that.
22:49
SPEAKER_04: Wow.
22:49
SPEAKER_04: So for connecting railroad cars together without destroying the equipment.
22:53
SPEAKER_04: These uh provide some sort of compression, basically.
22:56
SPEAKER_04: Yep.
22:56
SPEAKER_04: That is awesome.
22:57
SPEAKER_04: Uh and and your mom, she probably kept the kids in order and among other things?
23:03
SPEAKER_01: She did, but uh she was a she went to Purdue in engineering for her first three years and then uh went to work for DuPont uh in the world war because she was doing her part as a a lady that uh and went to work so she could help do things in you know for in World War II.
23:22
SPEAKER_01: So she had a little bit of education as well.
23:24
SPEAKER_04: Wow, no doubt.
23:26
SPEAKER_04: And both did important work.
23:27
SPEAKER_04: How did that uh turn into a trial lawyer for you?
23:30
SPEAKER_04: How how did your path become that of a trial lawyer?
23:32
SPEAKER_04: Curious what moment it was where you realized that's gonna be what you're gonna do.
23:36
SPEAKER_01: You know, it it's interesting because we had no lawyers in our family at all that I knew of uh when I was deciding.
23:43
SPEAKER_01: And then in the seventh grade, uh I had decided in with history and things where we were we were learning that the law was something that you know, part of it was uh uh the uh Scopes Monkey trial inherit the wind, all that kind of stuff, and it got my interest up.
24:00
SPEAKER_01: And ultimately I decided I think I wanted to be a lawyer because being in the courtroom and arguing and representing the people that needed representing seemed cool at the time.
24:08
SPEAKER_01: And I never deviated from it after that.
24:10
SPEAKER_03: I love that.
24:11
SPEAKER_03: Dave, you went to Baylor for college and for law school.
24:14
SPEAKER_03: Did they have did they have practice court uh when you were at Baylor in the 80s?
24:18
SPEAKER_03: Oh, yeah.
24:19
SPEAKER_03: And how is practice court different now than when you were there?
24:22
SPEAKER_01: Uh we as you've probably heard, Justin and um Spencer both, uh, we always say that when we were there it was much harder uh than it is now.
24:32
SPEAKER_01: Uh I had mad dog Matt Dawson and uh Professor Dawson was unrelenting but in a different way.
24:39
SPEAKER_01: He he used the I am so disappointed I failed you in teaching approach to humiliate you, to teach you a lesson.
24:48
SPEAKER_01: And and frankly, uh I thrived in under him for some reason.
24:52
SPEAKER_01: And that was the best uh six months of law school that I had was when I was in practice court.
24:58
SPEAKER_03: Do you now teach in practice court at all?
25:00
SPEAKER_01: I do, yes, I do.
25:01
SPEAKER_01: I I work with when we do the various practice court exercises, mini trial, various things.
25:06
SPEAKER_01: Yes, sir.
25:07
SPEAKER_03: So if you're saying it was much harder then than it is now, does that mean you've gone soft?
25:12
SPEAKER_01: It means uh I don't think the students would say that.
25:15
SPEAKER_01: Okay.
25:16
SPEAKER_01: Uh I I think I'm kindler and gentler because I'm told I have to be.
25:20
SPEAKER_01: Uh, but most of my students uh don't seem to agree with me.
25:26
SPEAKER_03: Did you have Jerry Powell as a professor?
25:28
SPEAKER_01: I did not.
25:28
SPEAKER_01: I was uh I was in law school while Jerry was doing his short stint as a real lawyer.
25:34
SPEAKER_03: I see.
25:34
SPEAKER_03: Did you compete on the trial team?
25:36
SPEAKER_01: I did.
25:36
SPEAKER_01: We had one trial team and I was the practice team member.
25:40
SPEAKER_01: My uh Dawson had the top four students grade-wise in practice court.
25:45
SPEAKER_01: I was not one of the top four, but I got asked to be a practice team member, so I practiced with them and didn't get to go to competition.
25:51
SPEAKER_03: How how much did you get to develop your skills doing that?
25:54
SPEAKER_01: It it was I I think it helped a lot because I saw Dawson in a little bit different light when he was working with team and I got to help and see how he was doing things, how he recommended.
26:05
SPEAKER_01: But I also our practice court when I was there, our first uh 12 weeks, our first quarter, uh, because my partner and I uh were fairly successful, we ended up getting to try eight mini trials, uh, which is which was double the the normal then.
26:21
SPEAKER_01: And so I had a lot of reps in practice court and then our big trial uh and other things.
26:26
SPEAKER_01: So Dawson and and Dawson was in every one of our trials uh teaching me, if you would.
26:31
SPEAKER_04: This is a perfect time to ask, and I've long wanted to.
26:34
SPEAKER_04: Uh Mad Dog Dawson.
26:36
SPEAKER_04: Uh he's got a statue, obviously, at Baylor Law.
26:39
SPEAKER_04: But the the nickname, how do you become mad dog?
26:41
SPEAKER_04: Is that like from a war, perhaps, or something?
26:43
SPEAKER_04: Or do you do you know?
26:44
SPEAKER_01: He is it it stemmed from he was just relentless.
26:49
SPEAKER_01: Oh, and that's what he was dubbed.
26:51
SPEAKER_01: He was just he was the mad dog.
26:53
SPEAKER_01: He was just a relentless uh lawyer, uh trial lawyer.
26:57
SPEAKER_01: And then when he became Praxis Corps' partner, he continued it.
27:00
SPEAKER_01: I mean practice court professor, excuse me.
27:02
SPEAKER_04: Very cool.
27:03
SPEAKER_04: Well, now let's talk about your career because you started as a prosecutor in McClellan County.
27:07
SPEAKER_04: You had great success.
27:08
SPEAKER_04: Uh by your second year, you were chief of crimes against children.
27:11
SPEAKER_04: By your third year, you were already trying multiple murder cases and capital murder cases, which is unheard of to me at least.
27:17
SPEAKER_04: What did you like about criminal law?
27:19
SPEAKER_04: And then why did you decide to leave after three years?
27:22
SPEAKER_01: Uh both very good questions.
27:23
SPEAKER_01: What I liked and still like about prosecution is the impact you can have.
27:29
SPEAKER_01: You wear the the white hat, and I mean that if you do it the right way, you are representing uh the community and the victims, and you really get to have an impact uh on people, uh, victims in particular, but also on the community.
27:44
SPEAKER_01: And so going in there every day felt like I was there for the right reason.
27:49
SPEAKER_01: It wasn't about the money, it wasn't about ego, it was about representing uh the the state to try to help people out to have a better community.
27:59
SPEAKER_01: So it was a very noble calling, I still think it is, and I still think most prosecutors feel that way.
28:06
SPEAKER_01: But partly because I tried so many cases in such a short period of time, and I inherited uh the crimes against children by a visiting judge who ordered me to try a case that I didn't know anything about and had three hours to learn about it, uh, and then got into it as heavily as I did.
28:26
SPEAKER_01: My wife decided when I was getting up at two in the morning working on things when I didn't have to, she said, maybe now's the time to talk to the people that have been recruiting you out of the DA's office.
28:37
SPEAKER_01: And I think she was probably wise.
28:39
SPEAKER_03: Now you joined a civil firm in 1986, right out of the DA's office.
28:42
SPEAKER_03: Yes.
28:43
SPEAKER_03: Within within four years you were partner.
28:45
SPEAKER_03: Today you're a name partner.
28:46
SPEAKER_03: When you joined the firm in 1986, did you ever think you'd be with that same firm for 40 years?
28:52
SPEAKER_01: I no, I didn't.
28:53
SPEAKER_01: Uh and partly because, you know, I I really, and and many, many times I thought about it, but I actually thought I would be in the civil field for a period of time.
29:04
SPEAKER_01: And then ultimately my my thought process was I'm gonna run for DA and I'm gonna go back to doing what I considered the Lord's work and prosecuting and life circumstances, success, and working uh with folks that I thoroughly enjoyed ultimately uh changed my path.
29:22
SPEAKER_04: Dave, tell us about your firm.
29:23
SPEAKER_04: First of all, what's the name of the firm?
29:25
SPEAKER_01: Firm name is currently Pacus, Geodis, Burleson, and Deakin.
29:29
SPEAKER_03: Well, of course he may partner.
29:30
SPEAKER_03: There's Deakinsen's in the title.
29:32
SPEAKER_03: Of course, he got of course he got hired.
29:35
SPEAKER_04: Talk about recruiting.
29:37
SPEAKER_04: They needed to.
29:38
SPEAKER_04: Yeah.
29:38
SPEAKER_01: Yeah, yeah.
29:39
SPEAKER_01: Now I'm uh the the funny thing there is uh I'm the only living name on the letterhead.
29:44
SPEAKER_01: So I'm not sure if that's a compliment or what they're trying to send a message to me about.
29:49
SPEAKER_03: What if that's true?
29:51
SPEAKER_03: Have you considered uh resequencing those names?
29:54
SPEAKER_01: Um actually, no, I would prefer to be at the end.
29:57
SPEAKER_01: And frankly, I don't didn't really care whether my name was on there or not.
30:01
SPEAKER_01: But but it was a nice gesture by my partners to uh decide to add me.
30:05
SPEAKER_04: It is a really nice gesture, and it is interesting how you know long-time firms like yours, that's what happens with the names.
30:12
SPEAKER_04: Uh and it's you know, it's uh it's quite an impressive position to be in, to, as you say, to be the the the name on the board that's um well, that's that's still with us to put to put it uh to put it that way.
30:25
SPEAKER_04: I mean it's really that's amazing because it shows intergenerational success, and there you are.
30:29
SPEAKER_04: Um how big is the firm these days?
30:32
SPEAKER_01: We are 15 lawyers, I think, 14 or 15.
30:35
SPEAKER_01: We got one coming on uh that actually just started this week.
30:38
SPEAKER_01: So I think we're at 15 lawyers right now, which is uh a good sweet spot for us, for our size of our community, but also the size of our firm because everybody knows each other very well, works well together, and uh don't don't know that I want to grow a whole lot more than where we are.
30:54
SPEAKER_03: Dave, you've tried more than 200 jury trials, I think.
30:57
SPEAKER_03: Is that right?
30:57
SPEAKER_03: Yes, sir.
30:58
SPEAKER_03: That includes big verdicts on behalf of well-known clients, including a complete defense verdict for Roku.
31:03
SPEAKER_03: What's the biggest thing you've learned about trying cases?
31:05
SPEAKER_03: Something you do well now that maybe you didn't do as well 30 years ago or 20 years ago.
31:09
SPEAKER_03: Great question, Justin.
31:10
SPEAKER_01: And I think we might, you and I might have had hold on.
31:13
SPEAKER_03: That that's one great question for Spencer, one great question for me.
31:16
SPEAKER_03: It's we're we're tied.
31:17
SPEAKER_03: I made a comeback.
31:18
SPEAKER_03: Go ahead, Dave.
31:18
SPEAKER_04: Justin's not competitive about these things at all, so don't worry.
31:21
SPEAKER_03: No, not not just not competitive about it.
31:25
SPEAKER_03: Over the summer, I learned that's called an equalizer when you tie the score.
31:28
SPEAKER_01: Um one of the things that that I learned over the years, and and we've touched on this a little bit, Justin, when we've been killing time during competitions, and that is the importance of just true communication, storytelling and communication with the jury.
31:44
SPEAKER_01: And that starts with Vor Dyer.
31:46
SPEAKER_01: And when I first started in the DA's office, uh, some of the prosecutors and defense lawyers checked the box in Vor Dyer just because that's what had to be done.
31:55
SPEAKER_01: What I have learned uh in trying a lot of these intellectual property cases with these big law firms, a lot of lawyers still just check the boxes and don't think vor Dyer is near as important as it is.
32:07
SPEAKER_01: Uh, and and that has grown over the years as far as uh re-establishing and reinforcing how important it is.
32:14
SPEAKER_04: Now, 200 uh plus jury trials, um, multiple decades in the practice, uh, name uh on the masthead.
32:24
SPEAKER_04: Um, you gotta get you got to share with us uh a war story.
32:26
SPEAKER_04: What what's one of your favorite war stories that you like to share?
32:29
SPEAKER_01: I I'm gonna um it's actually gonna be, and this probably ties back to my overall mentality.
32:35
SPEAKER_01: I got I got appointed as a special prosecutor a few years ago in a murder case in Hill County involving a father that had shot his 14-year-old daughter in the back with a shotgun and claimed it was an accident and various things.
32:48
SPEAKER_01: Uh and the girl happened to be the same age as my youngest daughter when she was killed.
32:53
SPEAKER_01: And so I got to try that, you know, I got to get back involved to try that case to a jury.
32:58
SPEAKER_01: And during the jury trial, um, there were intimidations attempted, you know, by people trying to intimidate me after hours and all that, which was kind of humorous to me.
33:08
SPEAKER_01: Um, but a great war story is uh the judge was Judge Lee Harris, who was now on our 10th court of appeal.
33:15
SPEAKER_01: Uh and I uh was in the midst of trying.
33:18
SPEAKER_01: We had a witness that was the defendant's girlfriend that had testified in the case in chief.
33:23
SPEAKER_01: We were now at punishment, and I was recalling her and she disappeared.
33:27
SPEAKER_01: And we learned she disappeared at the direction of the defendants.
33:30
SPEAKER_01: Uh, and so the the sheriff brought the defendant's lawyer in, made them tell her where she was, ordered the sheriffs out there.
33:36
SPEAKER_01: They went and picked her up, brought her back in, and got to listen to the judge tell her how her accommodations that night were not going to be as nice as she would like them to be.
33:46
SPEAKER_01: Uh, but she was spending the night and he helped she brought her toothbrush.
33:49
SPEAKER_01: And the next morning, when we put her on the stand, uh, although she was not very happy, she was much more compliant than she had.
33:56
SPEAKER_01: So just getting back and being able to do that with what I did and and and working with a uh I'm gonna call her a young lady because she she was certainly younger than me.
34:06
SPEAKER_01: That was a DPS uh shotgun expert.
34:09
SPEAKER_01: She looked more like a fourth grade teacher, nicest lady in the world, but she knew her shotguns better than anybody else and what she did and working with her on the stand uh and being able to just kind of watch as the defense lawyers just got absolutely eviscerated by her own cross.
34:26
SPEAKER_01: Uh that trial and and bringing back the uh the juices that uh used to flow was probably one of my funnest weeks in trial.
34:34
SPEAKER_04: Wow.
34:34
SPEAKER_04: That's great.
34:35
SPEAKER_04: Kind of story, and to be a special prosecutor.
34:37
SPEAKER_04: Um, let's talk about coaching.
34:38
SPEAKER_04: Uh you coach at Baylor's.
34:40
SPEAKER_04: We talked about what when did you start coaching at Baylor?
34:42
SPEAKER_04: What year was it?
34:43
SPEAKER_01: Well, let me let me uh let me go back before Baylor, if you don't mind.
34:46
SPEAKER_01: I don't uh when I when I started in the DA's office in October of 1983.
34:52
SPEAKER_01: Uh a somebody came to me in uh November of 1983 and says they need a they need a high school mock trial coach at uh what was then University High School in Waco.
35:04
SPEAKER_01: And I said, What's mock trial in high school like?
35:07
SPEAKER_01: And they said, You'll learn as you go.
35:09
SPEAKER_01: And so I actually started coaching mock trial teams at the high school level.
35:13
SPEAKER_01: The year I became uh licensed, uh, coached with the Waco Independent School District schools for about 23 years.
35:21
SPEAKER_04: Wow.
35:21
SPEAKER_01: Retired from that.
35:23
SPEAKER_01: My daughters both went to Midway High School, both wanted to do mock trial.
35:27
SPEAKER_01: So I came out of retirement and coached eight more years.
35:30
SPEAKER_01: And during those eight years, I was also coaching uh for uh Baylor Law School.
35:34
SPEAKER_01: Uh so I had a time when I was going every at literally every day, I was either at Baylor Law School or at uh Midway High School.
35:42
SPEAKER_01: And my wife, because it was my daughter, just kind of dubbed herself a mock trial widow and said, during this time of year, I rarely see them.
35:48
SPEAKER_01: So I go back a little ways, and then Jim Wren was the one that recruited me to start at uh Baylor Law School.
35:57
SPEAKER_01: Like I said, it was about 15-ish years ago, give or take.
36:00
SPEAKER_01: Um, and he said, I I need your help.
36:02
SPEAKER_01: Will you just come help me?
36:03
SPEAKER_01: Um, and the the lure of that was we're gonna pay you.
36:07
SPEAKER_01: He said, No, it's it's not gonna be anything uh that you can do much other than you know take your wife on a weekend somewhere, uh, but it's gonna be more than your high school pay.
36:18
SPEAKER_01: Uh and I said, you know, and Jim was a friend, and I said, Jim, I'll if you need my help, I'll help you.
36:23
SPEAKER_01: And little did I know that I would continue to do that for these many years.
36:27
SPEAKER_03: Now, Dave, you've been extremely successful as a coach.
36:29
SPEAKER_03: I know you're humble, but you've had incredible results at NCTC, AHA regionals, AJ Nationals, including the AHA National Championship in 2024.
36:39
SPEAKER_03: What is it about coaching that keeps bringing you back year after year, even though you're super busy running a law firm?
36:45
SPEAKER_01: Um it's the students and being able what one of the things that I have tried to do and that has always been uh something that I think is very important is the mentoring side of being a lawyer.
36:57
SPEAKER_01: And I get the opportunity to work with students that want to excel, want to work hard, want to learn, and I get a chance to mentor them.
37:05
SPEAKER_01: And I get a chance to continue relationships.
37:07
SPEAKER_01: I have a lot of young lawyers that have become not so young lawyers that I've coached that we still keep in contact.
37:13
SPEAKER_01: Uh, that I spent, I mean, uh, Justin, you know, one young, young lawyer by the name of Anderson Tittle.
37:20
SPEAKER_01: I just sent Anderson.
37:21
SPEAKER_01: Anderson worked, I she was one of my students, but she worked for me for two years at the firm here.
37:26
SPEAKER_01: And I just sent her off two weeks ago to go clerk for Judge Nicole Mitchell, a U.S.
37:30
SPEAKER_01: magistrate in the Eastern District of Texas.
37:33
SPEAKER_01: And I still keep in touch with her and a lot of others.
37:36
SPEAKER_01: And I think that side of the coaching to me is what keeps me coming back, even at my age, you get to spend with younger folk that are still energetic, eager, and hopefully help impact their uh course trajectory.
37:50
SPEAKER_03: Now, I think to other coaches you come across as soft-spoken, patient, even-tempered, even keel, that's that's certainly what you come across during our conversation today.
37:58
SPEAKER_03: Is that how you are with your students, or or is there another side to your coaching style?
38:02
SPEAKER_03: Uh are there things that students can do that that get a rise out of you?
38:05
SPEAKER_01: Uh yes, there can be another side.
38:08
SPEAKER_01: Uh, I will tell you, I am uh my students amongst themselves will will discuss me.
38:16
SPEAKER_01: And what they what they describe to new students is uh number one, I'm gonna write them, and I don't mean in a bad way, but I'm gonna work them until they do it the way I think they should, or or more importantly, where they rise to the level of their talent and use their talent.
38:33
SPEAKER_01: Um, but I'm also one of those that they they say they don't want to disappoint because I'll work hard with you, but if you start disappointing me or you start not working, it's not gonna be pretty.
38:44
SPEAKER_01: And I think uh they just kind of take the approach of I'm not as laid back as I might come across and will tell you uh stories about me that uh were where I have ripped into them uh in a appropriate way, but I I have ripped into many students because I thought they were either just mailing in at the time or that they had much more talent than they were exhibiting, and I wanted to show them where their talent was.
39:13
SPEAKER_03: I I want to get a sense of what that looks like.
39:15
SPEAKER_03: Imagine you've got a student, we'll call him Spencer, who comes to practice.
39:19
SPEAKER_03: He's supposed to have prepared his opening statement, be off notes, and he comes to practice, and not only is he not off notes, he hasn't finished writing it.
39:26
SPEAKER_03: I want you to look at him right now and and you know, what would you say to well why why don't we use this Spencer as the as the example?
39:32
SPEAKER_03: So look at Spencer and tell us what you'd say and make sure you use his name.
39:35
SPEAKER_03: We're gonna get all the Baylor coaches to do this at some point.
39:38
SPEAKER_03: Yeah, Jerry Jerry Powell did this a couple years ago, but it's it's your turn.
39:41
SPEAKER_01: Uh Spencer, uh, do you really want to be on this team?
39:45
SPEAKER_01: Because what you have just shown me is either a lack of effort, uh, you have other desires you would prefer to be pursuing, or you're not as smart as I really anticipated and gave you credit for.
39:58
SPEAKER_01: And I know that's not what the case is.
40:00
SPEAKER_01: So obviously there's a disconnect here.
40:02
SPEAKER_01: So what we're gonna do is I'm gonna give you a few minutes, you're gonna go back out, you're gonna come back in, and you're gonna do it again.
40:09
SPEAKER_01: And if you don't do it the right way, we're gonna do it until you do that.
40:13
SPEAKER_01: And if you're not happy with that, then now is probably a good time for you to let me know you're not willing to work as hard as you should.
40:21
SPEAKER_01: And I'll get somebody that is.
40:22
SPEAKER_04: Boy, I can imagine a Spencer feeling scolded by that.
40:25
SPEAKER_03: Yeah.
40:28
SPEAKER_03: Also, that is shockingly like our conversation before you signed on, Dave.
40:34
SPEAKER_03: This is all the this is not written down in any script.
40:36
SPEAKER_03: There's no scripts around here.
40:37
SPEAKER_03: This wasn't all planned.
40:38
SPEAKER_03: Uh, Dave, how would you compare the way you coach law students to the way you mentor law firm associates?
40:44
SPEAKER_01: I am a the associates, I probably do not do what I just uh expressed to Spencer, but I, with associates, I expect them to do the work, but I show them when they have an issue or where they're failing.
40:58
SPEAKER_01: I'll I'll just say, let's sit down and walk through this and figure out why you did it this way and why you need to do it differently.
41:05
SPEAKER_01: So I'm a I'm a little bit more uh I'm not gonna tell them, you know, you want to leave this firm.
41:11
SPEAKER_01: I know that because we've hired more than invest in them uh financially as well as long term.
41:16
SPEAKER_01: So there's, and I have a little more time with the associate to be able to do that versus coming in in the evenings and knowing that these students also have a full course load, oftentimes and most of the time, PC full course load where they are being pushed so hard that I've got to take that into account where I don't have that with an associate.
41:35
SPEAKER_03: Now during competitions, I I always see you sitting in the hallway during trials.
41:38
SPEAKER_03: Uh, who taught you not to watch the students during trial?
41:41
SPEAKER_03: My students did.
41:43
SPEAKER_01: That goes that goes back to um I had students start asking me, are you gonna watch us?
41:50
SPEAKER_01: And I say, why?
41:50
SPEAKER_01: And they go, Because if you're in there, you're gonna make a facial expression or do something, we're gonna see it, and then we're gonna worry about where we screwed up.
41:59
SPEAKER_01: So if you don't mind, I would prefer you not be in here and let somebody else that is just gonna watch that is a kindler, gentler person.
42:07
SPEAKER_01: Uh and I I'll tell the story on me at AAJ Regional.
42:11
SPEAKER_01: We had a team that ultimately went to nationals and did well.
42:14
SPEAKER_01: One of the lawyers did something that I decided I better get up and leave.
42:18
SPEAKER_01: This was when I was still watching them.
42:20
SPEAKER_01: Little did I know how quickly and how loud I got up and how much how loud the door slammed, to the point that everybody, including the judge, knew, all right, he did not like what happened with his student on that thing.
42:32
SPEAKER_01: And that kind of taught me, all right, I better just stay out.
42:35
SPEAKER_01: Uh everybody would uh be happier and there'll be less potential issue with students uh breaking down or freaking out or panicking if I'm not in there.
42:44
SPEAKER_01: So I stay out.
42:46
SPEAKER_03: Well, I realize that you never get to see your teams in trial.
42:48
SPEAKER_03: Um unfortunately, I do.
42:50
SPEAKER_03: Uh I remember one day in 2024 when I saw them twice in the same day when you knocked us out in the semis and then you beat us in the finals uh at AJ.
42:58
SPEAKER_03: Uh your teams are exceptionally well coached.
43:00
SPEAKER_03: Um, and even though you don't get to see them in action, I can tell you that they they are are very good and you'd be very proud to see them.
43:06
SPEAKER_01: Well, thank you.
43:07
SPEAKER_01: I appreciate that.
43:08
SPEAKER_01: Uh they are typically some of the hardest working uh young future lawyers that uh you will see, and they all seem to uh thrive ultimately in the in the real world, which is which is good though.
43:20
SPEAKER_01: I appreciate that.
43:21
SPEAKER_04: Dave, you said you've been coaching for 15 years or so at the law school level.
43:26
SPEAKER_04: Of course, you got much more than that back in the high school level.
43:28
SPEAKER_04: But I'm curious, at the law school level, what's the biggest change you've seen in those 15 years in in the competition scene?
43:33
SPEAKER_01: You know, Spencer, it's it's funny, it seems to be a little bit cyclical.
43:38
SPEAKER_01: Uh when I first started coaching, there was a more formulatic, scripted, you got to do things.
43:44
SPEAKER_01: It it evolved to more of a true advocacy.
43:48
SPEAKER_01: I think COVID took it back to just because the nature of a Zoom more scripted, more a little bit more theatrical.
43:56
SPEAKER_01: Uh, I have seen it going back in the last few years.
44:00
SPEAKER_01: That were back fully live, more toward a truly good advocacy argument and not so much the college mock trial influence.
44:11
SPEAKER_01: Though for a time I thought the college mock trial influence was was a bit too per uh pervasive.
44:16
SPEAKER_01: I just like to see get them up there, do it, let them advocate.
44:20
SPEAKER_01: Uh and and you see some really good with with some of the right judges, you see some really good back and forth, whether it's an evidentiary argument or just responding on cross-direct objections.
44:31
SPEAKER_01: When they're doing that, you really just kind of sit back and uh and when I say I see it, I watch videos and all that, but or hear about it.
44:39
SPEAKER_01: Uh but that to me is is what it's all about.
44:43
SPEAKER_01: Teaching them to think on their feet, to be able to pivot, to be able to respond, and to be able to not look lost when a witness is going a different direction or a judge is making a ruling that you didn't expect them to make.
44:58
SPEAKER_01: And so teaching them teaching them to be able to pivot and to adapt on the fly is something that that I think is is critical and I've seen to kind of deviate going back more toward allowing the students to do that.
45:10
SPEAKER_03: Let's turn to some fun stuff, starting with capital murder.
45:13
SPEAKER_03: Dave, how'd you meet your wife?
45:15
SPEAKER_01: Um I'm one of those number one, when you say capital murder, uh it it kind of actually does make me smile and and not the capital murder aspect of it, but the prosecution side of things, because uh prosecuting the capital murders that I got to prosecute uh were also some of the highlights of my career for the right reasons and not because of the victims and what happened, but just some of the things I learned.
45:39
SPEAKER_01: Um and one of the things I learned was you can meet your wife, even in the worst circumstances, like prosecuting a capital murder case, because uh first capital murder case I worked extensively on.
45:52
SPEAKER_01: My wife ended up who was not I had never met her in my life before, happened to be a brand new Baylor graduate.
45:58
SPEAKER_01: And for whatever reason, uh the lead prosecutors put her on as a juror against my recommendations.
46:06
SPEAKER_01: And then the last day of trial at when it was over, introduced me to her, told me I needed to take her out at least one time just to see what intel I could get.
46:15
SPEAKER_01: Um set me up, did all the stuff, I ultimately did go out with her.
46:19
SPEAKER_01: We were married less than a year later.
46:21
SPEAKER_01: So you can get some positive out of capital murder cases.
46:24
SPEAKER_03: Uh that's some really good void here.
46:26
SPEAKER_03: I use it.
46:27
SPEAKER_03: Well, hopefully only once.
46:30
SPEAKER_01: Well, as far as the void here, but I actually use that story uh when I talk to jurors in jury selection to kind of as an icebreaker to say, you know, number one, it tells them a lot, a little bit about me, but also tells them uh and kind of gives them the hey, you know, lawyers can be human and you can actually uh uh see some positive about lawyers every now and then.
46:51
SPEAKER_03: Does your wife get nervous every time it's it's you're gonna go pick a new jury?
46:54
SPEAKER_04: She's 200 no, man.
46:57
SPEAKER_01: No, she's she's pretty she's pretty comfortable uh after 40 years of marriage that uh she knows me well.
47:03
SPEAKER_01: And so Okay.
47:05
SPEAKER_04: Uh on your wall back there, Dave, I see at least two masters photos.
47:10
SPEAKER_04: Um, you're are you a you're a big golf fan, obviously.
47:13
SPEAKER_04: Uh you're a big golfer as well.
47:15
SPEAKER_04: I didn't know that.
47:16
SPEAKER_01: I am not a big golfer.
47:17
SPEAKER_01: I'm a hacker.
47:18
SPEAKER_01: I am a golf fan.
47:19
SPEAKER_04: Okay.
47:19
SPEAKER_01: I am a hacker.
47:20
SPEAKER_01: Um I have Spencer, uh, as you know, we annually we have our Academy of the Advocate over in St.
47:26
SPEAKER_01: Andrews.
47:27
SPEAKER_01: I've been I've run and walked the old course multiple, multiple times.
47:32
SPEAKER_01: I've never played around a golf there yet.
47:35
SPEAKER_04: Do you do you play badly or just not play, but like a little bit?
47:38
SPEAKER_01: I don't play enough.
47:39
SPEAKER_01: You know, I have enough good shots that when I play I want to go back, but I don't play well enough to justify saying that I can play where the origin of golf occurs.
47:50
SPEAKER_04: You put it that way.
47:52
SPEAKER_01: I'd love to play over there someday.
47:54
SPEAKER_01: I just you know the people that I go over there with that come friends of ours that are big golfers, for some some reason they always get their tea times in the morning when I'm teaching.
48:03
SPEAKER_03: That's weird.
48:03
SPEAKER_01: Yeah, just a strange phenomenon.
48:05
SPEAKER_03: Dave, for as long as I've known you, I think you've had the same facial hair.
48:09
SPEAKER_03: Is that called a circle beard?
48:10
SPEAKER_03: Is that right?
48:11
SPEAKER_01: You know, I have no idea what it's called, but yes, I have had I've literally, my wife has never seen me without some form either in my mustache, which was before this, or uh the rest of it, the circle.
48:21
SPEAKER_01: Uh I've had it for quite a while.
48:23
SPEAKER_01: When was the last time you were clean shaven?
48:25
SPEAKER_01: My sophomore year in college for about a month.
48:28
SPEAKER_03: And if you want to declare that a great question and break the tie, that's fine.
48:31
SPEAKER_01: That that wasn't great.
48:33
SPEAKER_03: That was an insightful question as well.
48:35
SPEAKER_03: Thank you, Dave.
48:36
SPEAKER_03: Uh is it cheapened by the fact that I had to ask for it?
48:39
SPEAKER_03: Yes.
48:40
SPEAKER_03: Will I take it?
48:41
SPEAKER_03: Also, yes.
48:41
SPEAKER_03: Uh now you you told us that you're a Cubs fan.
48:44
SPEAKER_03: Is it true you have Cubs season tickets even while living in Waco?
48:48
SPEAKER_03: It is true.
48:48
SPEAKER_01: Yes, I do have Cubs season tickets.
48:50
SPEAKER_03: What do you do with them?
48:51
SPEAKER_01: I sell most of them and I go up there and see some of them, uh, use some of them.
48:56
SPEAKER_01: Uh I was uh I got to go to some playoff games last year.
49:00
SPEAKER_01: I I I will tell you the story behind it.
49:02
SPEAKER_01: Obviously, growing up a Cub fan.
49:04
SPEAKER_01: Back when they started making the playoffs again, now it's been about 22 years ago.
49:10
SPEAKER_01: Uh I got on the season ticket waiting list as a whim just because I knew I would never ever be able to get it but I just thought it was kind of cool to be on the waiting list.
49:19
SPEAKER_01: And then four years ago, I got the email and the phone call saying your number is gonna be up if you want to buy season tickets.
49:26
SPEAKER_01: Well, by then I figured what the heck?
49:29
SPEAKER_01: Uh so I dropped my country club membership and used the money that I did that, and it's much better spent with season tickets.
49:36
SPEAKER_01: And I've gotten uh I've gotten to go to some really, really cool games and meet some interesting Cubs uh legends.
49:43
SPEAKER_01: But yes, I do have season tickets.
49:45
SPEAKER_01: I will uh admit it and I will admit that I can't justify the cost other than personally, it's and emotionally, it's well worth it to me.
49:52
SPEAKER_03: Well, I want you to rank these three feelings winning a big trial, winning AAJ nationals, and the Cubs winning the World Series.
49:59
SPEAKER_01: Man, that's a tough one.
50:00
SPEAKER_01: That's a that's a good question because it's a tough question.
50:03
SPEAKER_03: Wow.
50:04
SPEAKER_03: Okay, so three to one.
50:05
SPEAKER_01: Go on.
50:05
SPEAKER_01: It's it's uh I would probably do I would probably make winning a big trial number three, and I would probably make winning AAJ Nationals and the Cubs World Series 1A and 1B, and they could be interchanged.
50:20
SPEAKER_03: Okay, strong answer to a great question, Spencer.
50:22
SPEAKER_04: Oh, it's just circular here anyway.
50:25
SPEAKER_04: Um we're told uh that you're a big Vegas guy.
50:28
SPEAKER_04: Curious, is that true?
50:30
SPEAKER_04: And uh what what's that mean to be a big Vegas guy, if so?
50:32
SPEAKER_01: Uh it depends on your definition of a big Vegas guy.
50:35
SPEAKER_01: I go to Vegas, yeah.
50:36
SPEAKER_01: I mean, and and I like that question, Spencer.
50:39
SPEAKER_03: Uh, because Oh, pity points, pity points.
50:42
SPEAKER_03: Oh, listen to this.
50:43
SPEAKER_01: Because it's well, it's I I like it because it's unrelated to law, but it's it's related to enjoying life.
50:49
SPEAKER_01: And so therefore I will give you kudos for that.
50:52
SPEAKER_01: Uh I started going to Vegas with a group of friends 35 years ago, 30 years ago.
50:57
SPEAKER_01: Uh, as a once a year we get away.
51:00
SPEAKER_01: Our wives all laugh because they know out of our group we're pretty boring people, so there's no risk in Vegas, other than maybe losing a little money.
51:09
SPEAKER_01: Uh, and we started doing it and the group has grown.
51:13
SPEAKER_01: Uh we've had some uh people that have moved away that will still come.
51:18
SPEAKER_01: We've had move away, and it's just a great thing to look forward to every year.
51:22
SPEAKER_01: It's a fellowship trip uh where we get good meals, uh, we we gamble and some of the guys play golf and just have a great time and uh kind of uh regenerate.
51:32
SPEAKER_01: Dave, what is your favorite thing you're good at and your favorite thing you're not so good at?
51:36
SPEAKER_01: My favorite thing that I'm not so good at is probably I'm gonna put it, I'm gonna put it in a word context because uh I enjoy trials uh and there's a lot of things.
51:48
SPEAKER_01: My favorite thing that I think I'm not so good at is closing arguments.
51:53
SPEAKER_01: Uh I I think I'm good, but I'm not near as good as some of the others I practice with because I'm not uh I tend to be more reserved.
52:04
SPEAKER_01: Uh and so from that standpoint, uh my favorite thing that I am really good at, I I think is mentoring law students, and that's fulfilling in a blast, and I've been doing it.
52:16
SPEAKER_01: Uh so I'll put that pretty high up.
52:19
SPEAKER_03: Dave, thank you for coming on.
52:20
SPEAKER_03: It was it was really fun to get to know you better, no doubt.
52:23
SPEAKER_01: Gentlemen, uh both uh Justin and Spencer, I appreciate it.
52:26
SPEAKER_01: Uh and I've enjoyed uh getting to know you guys over the course of the competitions.
52:32
SPEAKER_01: Uh and I will say this to Justin, um, I have enjoyed beating you at Nashville.
52:37
SPEAKER_04: Yeah, thank you.
52:38
SPEAKER_04: It wasn't what he expected.
52:39
SPEAKER_04: Wasn't what he was thinking a little bit on the head.
52:41
SPEAKER_01: I I I really have enjoyed it.
52:43
SPEAKER_01: Yeah, I in all honesty, and and this doesn't have to be uh obviously on there.
52:46
SPEAKER_01: Uh oh it has to be honest.
52:48
SPEAKER_01: Haven't spent as much time with you, Spencer, but I've seen Justin a lot in the competitions, and I I've I've enjoyed uh getting to know Justin better and my opinion of Justin.
52:58
SPEAKER_01: I don't mean that in a negative way toward Justin, but just getting to know about Justin and more.
53:02
SPEAKER_01: I I've enjoyed that.
53:03
SPEAKER_01: So hopefully we will all continue.
53:05
SPEAKER_01: And I'll see you, Spencer.
53:06
SPEAKER_01: I'll see you more competition, maybe.
53:09
SPEAKER_01: But I but I but I enjoy that aspect of competition, of getting to know the Justins of the world better, people that I would never encounter but for my trial.
53:17
SPEAKER_03: Couldn't agree more.
53:18
SPEAKER_03: And and I I'd be remiss if I didn't congratulate Spencer on the one good question and the one question you like.
53:23
SPEAKER_04: We're having a nice moment.
53:25
SPEAKER_03: Goodbye.
53:29
SPEAKER_04: Thanks for the bone.
53:30
SPEAKER_01: Much appreciated, enjoying it.
53:32
SPEAKER_01: Good seeing you guys.
53:38
SPEAKER_04: But that's not all.
53:39
SPEAKER_04: We also spoke with Marion Riley this week.
53:41
SPEAKER_04: She is a superstar trial lawyer and appellate lawyer in Texas, fresh off a$1.6 billion verdict earlier this year.
53:50
SPEAKER_04: We got the chance to talk with her about how she uses her appellate skills to improve her trial practice.
53:55
SPEAKER_03: Did you say$1.6 million?
53:56
SPEAKER_04: Um billion, my friend.
54:00
SPEAKER_04: Wow, that's so much more.
54:01
SPEAKER_03: Thank a thousand times more.
54:03
SPEAKER_03: Approximately.
54:04
SPEAKER_03: Here's Marion.
54:10
SPEAKER_04: We welcome Marion Riley to Unscripted Direct.
54:13
SPEAKER_04: Marion is the co-founder of Martinez Riley Trial Lawyers in Corpus Christi, Texas, and an adjunct professor of law.
54:19
SPEAKER_04: A graduate of St.
54:20
SPEAKER_04: Mary's University School of Law, she's been named to Best Lawyers in Texas multiple years, has been a Texas Super Lawyer Rising Star seven years running, and was named Outstanding Young Lawyer of the Year by the San Antonio Young Lawyers Association in 2018.
54:33
SPEAKER_04: What's especially distinctive, and what we're going to lean into today, is that in 2022, Marion was recognized as Texas's featured appellate attorney, a distinction given to only one attorney per state per year.
54:44
SPEAKER_04: So she brings a unique eye to her trial practice, that of an accomplished appellate attorney.
54:48
SPEAKER_04: Adding to the many accolades is this Marion recently tried a case in Star County, Texas that resulted in a stunning$1.6 billion overall verdict on behalf of the families of two workers killed in a 2023 explosion at a hazardous chemicals plant.
55:03
SPEAKER_04: The verdict is believed to be a record for workplace injuries in Texas.
55:07
SPEAKER_04: Marion, welcome to Unscripted Direct.
55:09
SPEAKER_00: Thank you, Spencer.
55:09
SPEAKER_00: Happy to be here.
55:10
SPEAKER_04: Well, we're lucky to have you.
55:11
SPEAKER_04: Uh I I would I do want to get to stealing something from you, a method.
55:16
SPEAKER_04: Um, but first we just got to talk about this verdict.
55:18
SPEAKER_04: Uh tell us a little bit more about this case.
55:20
SPEAKER_00: Yes, sir.
55:20
SPEAKER_00: So um, you know, part, I struggle a little bit with celebration of the number, right?
55:26
SPEAKER_00: I mean, this is we as trial lawyers, we we have a job to do.
55:30
SPEAKER_00: Oftentimes, especially in cases like this, we're hired on the worst day of somebody's life.
55:35
SPEAKER_00: Um, so meeting the family, we represented the family of Angel Lafa, he was killed.
55:40
SPEAKER_00: He was one of um two workers on a killed on a pipeline explosion.
55:44
SPEAKER_00: And he had left behind two daughters, a wife and his parents, all of which we represented.
55:49
SPEAKER_00: Um, I remember going down there in preparation for trial.
55:52
SPEAKER_00: We had dinner with the family beforehand.
55:54
SPEAKER_00: And his um, one of his young daughters, seven-year-old little girl, she, I mean, she just lit up the room.
56:00
SPEAKER_00: Everything about her, you know, was just um, she was so optimistic and just a wonderful personality.
56:05
SPEAKER_00: So to sit down and have dinner with the family, you know, the day before you're going to go do opening and try their case, it brings a lot of um real life impact and feeling to that case.
56:17
SPEAKER_00: I mean, the concept of I have to do this family justice because they're real.
56:21
SPEAKER_00: This is a real family, these are real little kids, this is a real wife.
56:25
SPEAKER_00: I mean, it's not just um it's it's not just a story that we have to tell to a jury.
56:31
SPEAKER_00: It's it's real people.
56:32
SPEAKER_04: And I'll just second that by saying that, you know, I I'm a trial lawyer as well.
56:36
SPEAKER_04: And, you know, there is just nothing like the feeling of connection to a human who needs you, right?
56:41
SPEAKER_04: I mean, there you just described it so beautifully.
56:43
SPEAKER_04: It's amazing what we get to do.
56:45
SPEAKER_00: Yes, yes.
56:45
SPEAKER_00: And especially on the day of opening was the seven, she had turned seven on the day of opening.
56:49
SPEAKER_00: It was her birthday.
56:50
SPEAKER_00: So I talked to the jury a little bit about the fact that, you know, that was her birthday and she had to celebrate another year with without her dad.
56:57
SPEAKER_00: So to kind of bring real life stories to the jury and have them understand that it's more than um the particular case or the particular facts at hand, but these are real people, real lives.
57:09
SPEAKER_04: And my understanding of the facts of the case, generally, you'll have to you'll have to correct me here, is that uh at this hazardous chemicals plant, uh, this terrible explosion happens in the midst of welding that's that's occurring.
57:21
SPEAKER_04: And there's these gentlemen who who who died are welding, and you know, of course, they are getting terrible or non-existent instruction on what to do and how to do it.
57:30
SPEAKER_04: And multiple defendants were initially sued.
57:33
SPEAKER_04: Those had been dealt with by the time of trial, and it left this one incredibly intransigent, obstinate defendant.
57:39
SPEAKER_04: Can you tell us about them?
57:40
SPEAKER_00: Yes.
57:40
SPEAKER_00: So Upton Assets was the property owner.
57:42
SPEAKER_00: Um, the gentleman who owned Upton Assets actually owned a number of the other uh companies involved that had settled out prior to the time of trial.
57:50
SPEAKER_00: Um, the the property owner, though Upton Assets did not.
57:53
SPEAKER_00: This was a fairly big plant, a sizable plant, um, a lot of revenue, a lot of income with respect to the load that they processed on the oil.
58:02
SPEAKER_00: Um they didn't hire the right people to do the right job.
58:05
SPEAKER_00: They didn't do what they were supposed to do with respect to cleaning out the plant, uh cleaning out the tanks that were involved.
58:11
SPEAKER_00: They knew that there was a leak on one of the tanks.
58:14
SPEAKER_00: Um, they knew what they had to do to make it right so that these workers could come in there and do their job safely.
58:20
SPEAKER_00: And they didn't do it.
58:21
SPEAKER_00: And I think the jury um told up NASA's what happens when you don't do what you're supposed to do.
58:26
SPEAKER_00: And they did it very, very clearly, in my opinion, by virtue of this verdict.
58:30
SPEAKER_00: Um, but I think that it tells the story or tells a warning tale to other companies that you have to do it right.
58:37
SPEAKER_00: When you're dealing with people, when you're dealing with lives, you need to make sure that you're doing things safely and doing them correctly.
58:43
SPEAKER_04: That's that salutary benefit of a great outcome like this, is it's it's newsworthy to other bad actors out there.
58:50
SPEAKER_04: I'm curious, do you think it's newsworthy to uh lawyers with regard to their tactics in litigation?
58:56
SPEAKER_04: I don't know.
58:57
SPEAKER_04: Maybe I'm just being naive here, but being hopeful.
58:59
SPEAKER_04: I mean, Upton Assets, as I understand it, was incredibly aggressive at blaming these gentlemen who died for what had happened.
59:05
SPEAKER_04: And the jury zeroed them on comparative fault, right?
59:09
SPEAKER_04: I mean, like completely exonerated.
59:11
SPEAKER_04: This is only Upton Assets' fault.
59:13
SPEAKER_04: Do you think there's any, you know, sense that maybe that wasn't a great trial tactic to attack these gentlemen?
59:18
SPEAKER_00: Yeah.
59:19
SPEAKER_00: So interestingly, um, they had pre-trial, we had gotten a lot of suggestion that they were going to attempt to put a lot of blame on the workers themselves.
59:26
SPEAKER_00: Um at during closing argument, the the lawyer who presented for the defense didn't actually suggest a number on um on either Angel or or Mr.
59:36
SPEAKER_00: Garcia.
59:37
SPEAKER_00: They instead attempted to put it on the other companies who were there.
59:41
SPEAKER_00: They said, okay, Epton hired another company called um Access Transport.
59:45
SPEAKER_00: So put a percent on Access Transport, put a percent on this defendant, put a percent on this defendant.
59:50
SPEAKER_00: So they actually didn't attempt to, during closing argument, ask the jury to apportion any liability or responsibility on the two individuals themselves.
59:59
SPEAKER_00: Um, they did, which I thought was interesting and I hadn't seen in my practice before, they did actually ask the jury to award uh 12.6 million to the plaintiffs.
1:00:08
SPEAKER_00: Um I thought that that was kind of a that's pretty substantial and sizable amount.
1:00:13
SPEAKER_00: I hadn't seen that.
1:00:14
SPEAKER_00: I've of course been involved in trials where defendants have said they're asking for too much money, don't give that much, give this much, but the number that they suggest is substantially lower than what they did in this case.
1:00:25
SPEAKER_00: So I wonder if that perhaps had something to do with um the level, like maybe the jury perceived that as an acknowledgement of guilt and then said, okay, that that's not the number that we accept as being reasonable for this and and one higher.
1:00:39
SPEAKER_00: I, you know, that I'm not really sure, but I thought that was interesting.
1:00:43
SPEAKER_04: It's interesting to know that they they didn't blame these gentlemen, Angel and the other uh gentlemen.
1:00:47
SPEAKER_04: And maybe it was just, you know, um the the the lesson was learned before trial without with regard to blaming them.
1:00:53
SPEAKER_04: But it's interesting, you're right.
1:00:55
SPEAKER_04: The the the you know, saying some degree of fault, okay, put that on up 10 assets.
1:00:59
SPEAKER_04: If that opened the door and the jury's like, great, door's open.
1:01:01
SPEAKER_04: We're happy to walk through it.
1:01:02
SPEAKER_04: It's interesting.
1:01:03
SPEAKER_00: Right, exactly.
1:01:04
SPEAKER_04: All right.
1:01:04
SPEAKER_04: Well, um, I always say at the beginning of this uh segment, we'd like to steal something from you, if you don't mind.
1:01:09
SPEAKER_04: Um, we'd like to take to get an insight from you from your practice that that we as trial lawyers and budding trial lawyers can put to use.
1:01:18
SPEAKER_04: I thought I'd ask you about the very unique connection between your appellate practice and trial practice.
1:01:23
SPEAKER_04: How does your work in appellate law inform what you do when you're trying a case?
1:01:30
SPEAKER_04: Big question.
1:01:31
SPEAKER_04: Big question.
1:01:32
unknown: Yeah.
1:01:33
SPEAKER_00: Um it it feels like they're two different worlds, right?
1:01:37
SPEAKER_00: It feels like as an appellate lawyer, when you go back and you read the record, you think, and there's a kind of a tendency to really criticize trial lawyers to say, well, why didn't they do this?
1:01:45
SPEAKER_00: Why didn't they preserve error in this way, or why didn't they make this objection?
1:01:48
SPEAKER_00: And it's easy, right?
1:01:50
SPEAKER_00: It's easier said than done.
1:01:52
SPEAKER_00: When you're looking back and you're reading the record, I feel like it's easier for an appellate lawyer to say, well, they should have done this, they should have done that.
1:01:58
SPEAKER_00: As a trial lawyer, having been there, having been in the moment, it's hard.
1:02:02
SPEAKER_00: It's hard when you're juggling 20 different things and you're trying to make sure that you know you are in fact preserving error and doing it in the exact way that you need to.
1:02:10
SPEAKER_00: But sometimes at the very moment, it doesn't come out the way that the appellate lawyer wishes that it came out.
1:02:15
SPEAKER_00: Um, so I I find that the interplay between those two, I tend to be overprepared.
1:02:21
SPEAKER_00: I prepare for everything.
1:02:23
SPEAKER_00: I ask myself before I go in, what is the other side gonna argue?
1:02:27
SPEAKER_00: Or when I see this, if I have to read the record on appeal, where am I gonna criticize myself?
1:02:32
SPEAKER_00: And to the extent that I can prevent that on the front end or prepare for it on the front end, I try to do that.
1:02:39
SPEAKER_04: Do you think you err more on the side of listen, uh, you know, we have a dispute here on this or that evidentiary issue, whatever?
1:02:44
SPEAKER_04: I we're gonna we're gonna put it on the record.
1:02:45
SPEAKER_04: And of course, I think we all do that, but do you uh is there something more to you that you bring to that?
1:02:49
SPEAKER_04: I mean, you obviously understand the law better too, probably than the average trial lawyer.
1:02:52
SPEAKER_04: But I don't know, do you find yourself to be like really, really requiring we're gonna put this on the record, you know, we're gonna, you know, do you do you do that more, do you think?
1:02:58
SPEAKER_00: Um I don't do that more uh in the other than the charge conference.
1:03:03
SPEAKER_00: I would say when it comes to the charge conference and actually making sure that we're preserving objections appropriately.
1:03:08
SPEAKER_00: And Texas law, of course, is is very stringent with respect to preservation of error on the jury charge.
1:03:14
SPEAKER_00: I am very stringent on the way that I preserve error and the process that I go through on that.
1:03:18
SPEAKER_00: So if there's any question of doubt on whether something should be included or not, I make sure to go through the steps that I have to to get, you know, my objections in rioting and tender things appropriately to the court.
1:03:28
SPEAKER_04: Um so what's that look like?
1:03:29
SPEAKER_04: I mean is it an additional brief, you know, if there is a dispute on this or that jury instruction or it's you know going on the record for an extended period during the charging conference or something else, all the above?
1:03:39
SPEAKER_00: A combination of both.
1:03:40
SPEAKER_00: Um, usually I'll have briefs in advance.
1:03:42
SPEAKER_00: I anticipate what legal issues are going to come up, where they're where the other side is going to oppose particular issues and make sure that I have that fully briefed.
1:03:50
SPEAKER_00: And then I'll ask the court, you know, to be on the record, ask for the court reporter to be there, and then make the formal objection um on record and then go through and actually give the court a copy of the objection in writing, have the court sign there, ask for the ruling then and there in writing.
1:04:06
SPEAKER_00: Um, so that's kind of what that ends up looking like on the appellate side of things or the trial side of things during the charge conference.
1:04:14
SPEAKER_04: What advantages do you think it gives you being an appellate practitioner who also tries cases?
1:04:19
SPEAKER_00: The probably the advantage of thinking things through and seeing where the other side may say that's going to be something that we're going to take up on appeal and kind of finding the ways that we or the things that we need to argue as trial lawyers that I know have lost on appeal.
1:04:35
SPEAKER_00: So if I need to phrase something a little bit differently, if I know that, for instance, arguing um that negligent hiring is not, you know, is separate than chapter 95, for instance, in Texas, I know that that's already gone up on appeal and I know how the appellate court has ruled on that issue.
1:04:51
SPEAKER_00: So I'm going to avoid that argument.
1:04:53
SPEAKER_00: And I think that there's a tendency, and it's difficult, of course, to do to know all of the law and all of the cases on whatever it is that you're going to trial on.
1:05:02
SPEAKER_00: But I think that that does provide an advantage because I try to figure out where the where the appellate court has not spoken and if we can fit in a case on the trial level into those little um nuanced areas.
1:05:13
SPEAKER_04: Is there an example from the recent verdict where you know you you drew on your appellate practice to make a decision at trial?
1:05:20
SPEAKER_00: Um there is.
1:05:21
SPEAKER_00: We ended up actually going, you know, it it was uh what I believe may ultimately be a premises liability case, um, what's called in Texas a chapter 95 case.
1:05:31
SPEAKER_00: We did though go ahead and present both um a premises liability question and a negligence question on the charge in the event that, you know, there there is a a section in our pattern jury charge book here in Texas that says, you know, if there's a question, submit both.
1:05:46
SPEAKER_00: The defendant said, no, this is chapter 95.
1:05:49
SPEAKER_00: We don't want you to submit an ordinary negligence question to the jury.
1:05:52
SPEAKER_00: And I said, if there's an if there's any question, we need to go ahead and submit both, and then we can work it out on the on the back end or the you.
1:06:00
SPEAKER_00: the court can decide what they want to actually issue with respect to that judgment.
1:06:04
SPEAKER_04: I love it.
1:06:05
SPEAKER_04: Well, um there's some debate in the community, um, and this is a trial advocacy podcast, of course, about which of the branches of competition are better, uh, trial, appellate, or ADR.
1:06:13
SPEAKER_04: And if you could just settle this for for for all time here, just let us know that it's trial if you if you don't mind doing that.
1:06:18
SPEAKER_00: Yeah, absolutely.
1:06:19
SPEAKER_00: It's actually ADR.
1:06:20
SPEAKER_00: So you're wrong on that.
1:06:21
SPEAKER_00: But you know, um like like we tell students that try out for the team, you can't go through a case, you can't get to trial, you can't get to appeal unless you're negotiating.
1:06:31
SPEAKER_00: So and really at the end of the day, the way that you in my experience get the money is through negotiation.
1:06:36
SPEAKER_00: So that's why we love ADR.
1:06:38
SPEAKER_00: But um I really love all the disciplines.
1:06:40
SPEAKER_04: I'm not going to get it out of you.
1:06:41
SPEAKER_04: All right.
1:06:41
SPEAKER_04: Fair enough.
1:06:42
SPEAKER_04: Well Marion, thank you so much for joining us and and sharing your insights and congratulations again, not only to you but to the families who benefit from your great work.
1:06:49
SPEAKER_00: Yeah.
1:06:50
SPEAKER_00: Thank you, Spencer.
1:06:50
SPEAKER_00: I appreciate it.
1:06:57
SPEAKER_03: All right we turn to our mailbag.
1:06:59
SPEAKER_03: I can't can't get it open.
1:07:00
SPEAKER_03: Will you help me out?
1:07:02
SPEAKER_04: Well I let use this letter opener here you go.
1:07:04
SPEAKER_04: You get it.
1:07:04
SPEAKER_04: And don't don't don't mess up the the it's bronze.
1:07:07
SPEAKER_04: It's a nice letter opener.
1:07:08
SPEAKER_04: You want me to do it?
1:07:08
SPEAKER_03: Yes please.
1:07:09
SPEAKER_04: I don't know if that translates very well but I had no trouble opening it at all.
1:07:12
SPEAKER_03: Uh I didn't hear the sound.
1:07:13
SPEAKER_03: Do it again.
1:07:13
SPEAKER_04: Sounds like you making the sound of an elephant on a podcast okay let's put it that way.
1:07:17
SPEAKER_03: Hey watch yourself all right it's it's it's open.
1:07:19
SPEAKER_03: All right this question comes from anonymous listener JS in Buffalo New York.
1:07:23
SPEAKER_03: No idea who that could be congratulations on uh on Stetson's pretrial uh what is something about the podcast that listeners would find surprising Spencer I I don't know aside from the fleet of jets that we it takes to do this beyond that we you had those before we did the podcast yeah I only dream of destroying the environment that brutally um no I don't I don't at all um you mentioned that but I did get a mailbag question um I was gonna say for later but I can ask you now someone wants to know if you still have the solar panel I'm gonna start calling Robert little Rob is what I'm gonna start doing.
1:08:00
SPEAKER_03: Wasn't just Robert there are there are multiple multiple people at Battle of the experts who asked me to ask you about it.
1:08:05
SPEAKER_03: And you know I wasn't gonna do it but you just you just brought it up so go ahead tell everybody what we're talking about here.
1:08:11
SPEAKER_04: Oh I have but through no fault of my own I have solar panels on my roof that were there when we purchased the house part of a 20 year contract with a company that is now Tesla uh and so I am I therefore have this ridiculous contractual obligation to keep these things on my roof despite the very serious problems with that company and all the other companies associated with the uh a certain not billionaire but trillionaire I'm so sorry that that happened to you through no fault of your own uh you said the company is now Tesla what was it called when you bought the house solar city oh wow and when they when you when they became Tesla um did you try to sell the house?
1:08:52
SPEAKER_04: Uh yeah yeah that would have been a good idea no we did not try to sell the house then um I did try to I did I have checked what it would cost to get out of this and it was like you know like a lot of year like depending where you're going to school like it'd be a lot of tuition for a year it's like this is nuts the amount of money like I'm very spiteful um but not that spiteful and um so yeah it's it's thank you all for yeah for for for attacking that open wound I appreciate it scale from one to ten how how often do you do you think about it?
1:09:23
SPEAKER_04: Oh not more than three or four times a week.
1:09:25
SPEAKER_03: Okay.
1:09:25
SPEAKER_03: On a scale from one to ten how guilty do you feel about it?
1:09:28
SPEAKER_03: About a seven yeah eight okay it was Jared and Robert yes sounded right okay back to your answer what would surprise people about the show other than your uh solar panel guilt I think people would be surprised to know that it's purely unscripted you know there's not a script anywhere ever there never is um this is just completely off the top of our heads every time that's what I think you mention a script like every other week I like to keep people guessing you know okay got it how about you what's your answer uh okay number one even though we only use the audio out of respect we always wear pants what okay let me revise that out of respect out of out of respect I always wear pants oh man wow changes everything 58 nine episodes in and wow this is I yeah I guess I was confused okay uh you know we we've never talked about downloads like for real the cities with the the greatest listenership the most downloads on average uh for the show Houston Houston okay I like it that's good houston that's a big city big city are are you gonna give us your opinion on each of these cities if you keep pausing I'm gonna throw something in there yeah of course New York okay and and Philadelphia I mean to be fair Phil does download this like at our request like what is what's our deal with him yes download it like 400 times something like that the the the podcast service we use is very specific because most of the downloads are coming from Broad Street.
1:11:00
SPEAKER_04: Oh okay yeah yeah yeah wow okay um yeah that's weird I always had Stetson higher on the list but um uh St.
1:11:11
SPEAKER_04: Pete Florida but you know what do I know?
1:11:13
SPEAKER_04: Um any any other surprising things about the show people want to know um sometimes we go on too long and just should end.
1:11:20
SPEAKER_03: That's not surprising to anybody thanks everybody for listening.
1:11:23
SPEAKER_03: Good luck to everyone competing this week and we will see you for episode 159.
1:11:27
SPEAKER_04: See you folks unscripted Direct is a production of Justin and Spencer we're mixed and edited by the Sam Chase.
1:11:34
SPEAKER_04: If you're not on the lister but want to get our blast email each episode sign up at www.unscripteddirect.com follow us on social media as follows Instagram we're at unscripteddirect facebook it's facebook.com slash unscripted direct and twitter is at unscripted dx