Latest / Coopers' Code / $9.57M School Bullying Verdict (Part 2): Voir Dire, Jury Selection & Trial Strategy

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$9.57M School Bullying Verdict (Part 2): Voir Dire, Jury Selection & Trial Strategy · Coopers' Code

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Howdy and welcome to the show. Cooper's Code focuses on legal
0:05
issues and noble practitioners, distilling wisdom so we all
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achieve the best results for our clients.
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I'm Miles Cooper and I'm very excited for this After Action
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review where we'll be sitting down with Megan Burns and Emily
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Dom for Miracle Law. The case of Maria and Esmeralda
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was a case that came to our firm through a referral through my
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network. And basically what happened was
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about a series of bullying events that had taken place at
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James Logan High School for approximately a year.
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The school knew all about it. They had never notified
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Esmeralda's parents as to what was going on.
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Eventually the bullying escalated to the point where
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Esmeralda was incredibly worried for her own well-being and
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finally self disclosed to her parents.
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And on that day, Maria, Esmeralda and some other family
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members went to the school to try to meet with the principal.
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And as they drove into the parking lot at James Logan High
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School, the bully and a number of her friends, along with the
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school security guard that was a family member, met them in the
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parking lot and immediately when they got out of the car, started
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attacking them. And you can imagine from an
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attack like that, there was a a very real and visceral
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experience that they both had with post traumatic stress
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disorder. Let's get to the jury selection
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and and the manner in which you approached the selection process
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was, was there a strategy that you had in terms of going
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through things and looking for particular types of jurors?
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Well, let me just jump in and say that I'm going to leave this
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question Emily because she did Wadir.
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But before she stop talks about her strategy for Wadir, I do
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need your listeners to know that Emily Dom gives a master class
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in Vaudir. And so that's the beauty of
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having a law partner that you have so much respect for as a,
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as a fellow #1 trial lawyer is that you know what your
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strengths are. And Emily has an incredible
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strength in Vaudir, and so I need to give her credit for
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that, but she can tell you more about her specific strategy.
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Emily won't likely acknowledge that is there, is there
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something, is there something in particular Megan, a style or a
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method or a a skill that that you want to call out as far as
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Emily is concerned, that that makes her so good at that?
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Emily and I are both fellow Midwesterners.
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And so that maybe tells you a little bit about, you know, what
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our Constitution is. And I think what makes all great
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trial lawyers is that you really feel comfortable in your own
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body, and you really feel comfortable talking to people.
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And Emily is also hilarious and she has all these kind of
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hilarious Midwestern sayings. Like I bet dollars to Donuts I,
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I don't know, I could probably think of 10 more if it came came
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to mind. But she's just incredibly
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likable and she's funny. And that's just who she is
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personally. And so having that kind of lack
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of fear of getting up and just being yourself in front of
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others is really what is critical to picking a jury.
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If they believe that you're being earnest and honest in
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yourself with them, they're going to do the same.
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And that's really what Vladir is about.
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It is not a exercise in talking, it's an exercise in listening.
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And so when they feel that they have the space and comfort to be
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able to talk to you honestly, that's when magic happens in
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Vladir, in my opinion. And with that, let's kick it to
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you, Emily. Yeah, so I'd like to, I'll, I'll
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start disabusing all of your listeners of all the things that
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Megan just said about me. And I will tell you, I've, I've
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had some real whiffs on juries I've picked as well.
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So I, you know, I, I don't always get it right.
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And there is even a couple of trials, I can tell you
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specifically what I what I missed and what I didn't do
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right in jury selection. And it had a very predictable
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outcome. And so this just happens to be
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the one of the ones that I think I got right.
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So, you know, with an end of one, I'm doing great.
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But, you know, I, I don't really have a particular strategy for
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jury selection beyond stuff I think in most trial lawyers are
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familiar with this. I'm a big, big believer in
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deselection. I'm not here to get the folks
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who are my dream jurors to stick their hands up.
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I also don't get too wedded to them because, you know, we're,
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we never get to keep them. The other side is peremptory
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challenges too, But it really is I try to figure out like what it
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what are if I only get to talk about two things with this jury
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with the time that I have, what are the two most important
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things? What are the, what are who are
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the jurors who are going to sink us and what, what can I get them
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to say about it? And in this case, that was our
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bad fact. You know, our, our bad fact
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isn't our clients. We had amazing clients.
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We had great facts as it pertained to the actual conduct
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of the defense. So we, we felt pretty good about
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all that. You know, there weren't, you
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know, these, you know, well, if you find out my client did XY
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and Z, no, these were just a great family and it was a real
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privilege to be able to sit next to them.
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So that wasn't our issue. Our issue was nobody wants to
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stick it to a public school district.
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And I don't want to stick it to a public school district.
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Like, I'm a big, I'm, I'm my mom's a teacher.
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Half the people in my family are teachers, you know?
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And so like, I don't relish the idea of putting a big verdict on
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a a strapped public entity that exists for the sole purpose of
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educating children who can't buy their way out of the public
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school system. And it certainly we were trying
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this case downtown Oakland, which is where Megan and I live.
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And, you know, the Oakland public school system is grossly
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underfunded and under resourced. And so, you know, this is
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something that is going to be the forefront and the mind of
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the jury pool. And and it's not just Oakland,
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Almost all public schools anywhere you want to go,
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certainly on this side of the tunnel are are need more money
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and more resources. So it really was just about
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being really frank upfront with the jurors about this is my big
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concern. And it's and I and I want to
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validate for them that it's OK. Like this is an opinion that I
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actually share with you. And it's all about getting
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jurors to feel comfortable telling me what they think I
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don't want to hear. And there was one point I
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remember this, this guy, by the time I got to him, he'd been
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saving up. He'd been saving up all the
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things he wanted to tell me. And boy, he let loose.
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And at one point I started laughing, you know, not at him,
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but I was like, all right, keep it coming.
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I'm like, I asked for this. Let's hit me.
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What else you got? You know, But I ended up getting
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a really large number of people kicked off for cause because
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they, when it really came down that we had a conversation where
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they said when push comes to shove, if they found that the
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district was liable, that they would pull their punches on
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damages because it would just be too hard for them to give these
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women full and fair compensation knowing whose pocket it was
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coming out of. And, and I got a lot of people
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to be very, very candid about that.
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Two questions on this and I'm going to object to my question
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as being compound before I even started.
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The dual part question is what do you feel you did that was
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successful in getting people to be brutally honest?
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Question one and question 2 is what do you feel that you did to
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get people to open up to the point where a judge is willing
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to grant your cause challenge? Did did, did you have a a
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mechanism for that? You know, I don't know that I
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maybe Megan knows what I did. I don't know what I did.
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I mean, I think I'm just very, I'm very, I'm a very blunt
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person and I'm very frank with people.
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And, you know, and I, I literally invited them to tell
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me things that I don't want to hear.
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You know, I'm here representing my clients and I full throatedly
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believe in, in what I'm about to ask this jury to do.
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But it's really important that this jury is able to be unbiased
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all the way through, all the way to the point of damages.
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And, and really, I think being able to talk about this as a
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form of bias. And there is a jury instruction
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that says, you know, the relative wealth or poverty of
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the defendant can play no part in a jury's decision about what
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the damages should be. So like, this is a, this is, and
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I use that jury instruction. This is something you're going
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to hear from the court if you're on this jury that you actually
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can't do that because it is a form of bias.
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You know, it's not fair if you find that our clients have been
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harmed, it's actually not fair to not give them full
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compensation. And so it is a type of of when
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we talk about bias now, I didn't talk to them about it being
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biased because I think that is a little bit of a lightning rod
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word. And people interpret that I
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would if I was sitting in their seat is saying, oh, I'm an
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unfair person or I'm unable to critically think.
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And I don't like criticizing jurors, you know, for being
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human, but really when I'm talking to the judge about these
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cause challenges, you know, outside of earshot of the
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jurors, that is what I'm couching it at for the court
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because that's the language the court understands is this is a
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type of bias and bias jurors cannot be.
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And if jurors have bias, that's 'cause.
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I'm just sitting here listening to you and I'm having a
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realization that may be helpful to Miles listeners, which is I
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think part of the reason why Emily and I like to think I'm
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pretty good at picking a jury too.
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But she's really great at it really is our experience as
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public defenders. I mean, when you are a public
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defender, you got about 20 minutes to pick that jury and
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you better pick the one to two issues that really matter in
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your case. And not only do you have to get
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those people to talk to you, those people don't like you and
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they don't like your client and they don't like you because you
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represent your client, You're sitting next to him or her and
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and you think that person has a humanity that deserves to be
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seen. And, and I think that that is a
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unique background that we have that really helps us being able
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to talk to people. It's hard to get up in Vladir
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and have those tough conversations about people being
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honest with how they feel. But that is by picking jury
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after jury and having very limited amount of time to do it.
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And I think that's a luxury that is given to more civil lawyers
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that they have all this time to pick a jury.
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You get your questionnaire, you've probably done focus
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groups or other kinds of things to get ready.
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That's not the perspective that criminal defense or public
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defenders come from. You think about it in the shower
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that morning as to what your one or two best issues are.
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And you scribble on a notepad the few questions that you want
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to make sure that you cover with the jury.
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And then that judge gives you 20 to 30 minutes.
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And it could even be on a serious felony case.
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And so that's, I think when I'm hearing you speak, Emily, I'm
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realizing that that experience that you have really comes from
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your background picking really tough jurors and criminal cases.
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Yeah, I think that's a good point.
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And yeah, Megan is, is selling herself short.
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She, I've watched Megan pick many, many, many juries and she
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is every bit skilled, if not better.
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And I'll, I will say a lot of my cases, particularly in private
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practice, you know, I, I do a lot of sex cases.
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So, you know, you walk in the room and, you know, you can
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almost hear everyone hissing. Bitch, your client, so you know,
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when you walk in with being the most hated person in the room
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or, you know, the jury pool, that group 100 takes a look and
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says, oh, what'd he do to be here sitting next to her?
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You know, no, she's one of those slimy defense attorneys who's
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going to try and get them off on a technicality or whatever.
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You know, you are definitely swimming upstream.
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And so I think that does build a certain resiliency.
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And also, I think we, we have that experience, Megan and I
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both of picking jurors and we get that cause, you know, back
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and forth the jury and you've got them there and then the
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judge comes in and says, oh, but you can be fair, right?
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And they rehab the hell out of that.
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And so that can be really frustrating.
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I have a really funny story really quickly.
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I had a this was a criminal trial where that, you know, a
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judge had given the whole, you have heard any evidence.
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See, if you had to go back and vote right now, you'd have to
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vote not guilty because these are just allegations.
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And so we do some back and forth and it's my turn to talk to this
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juror. And I said, you know, you heard
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that thing the judge said about no evidence.
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So if you had a vote right now, just checking, how would you
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vote? And she said, oh, I'll find him
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guilty. The judge, like, are we done
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here? Do I have to do more?
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And the judge just jumps in, Oh no, no, no, no, no, no, no,
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ma'am. And he explains the concept
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again and you can't do that. And this is how it goes.
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And so he rehabs her and OK, I understand.
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I understand. So then I, I, and I don't buy
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this for one second, right? And this is another thing I tell
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jurors, like, I don't have the hubris to think that I'm going
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to walk in here and in one forced conversation with you,
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I'm fundamentally changing your world view.
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Like, I think I'd like to think I'm that amazing, but I know I'm
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not. So I know the judge is also not
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this amazing. And so he asks he he does that.
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And I asked this juror again, OK, so you heard what the judge
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said. Just want to check if you had to
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go back right now, all you've heard is a judge just read the
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charges against my client. If you had to go back right now
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and vote, how would you vote? And the juror said, oh, well,
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I'll wait to hear all the evidence, then I'll find him
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guilty. And, and we had to relent and,
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and that was a cause challenge, granted.
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But yeah, it's, it's hard, you know, talking to yours and it's
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hard. Nobody wants to be there and
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nobody wants to share stuff about their thought process and,
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and, and how they feel about usually, often topics that they
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probably wouldn't even talk with their friends and family about
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in front of a room of strangers, all the while being raided by
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two lawyers. It's hard.
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As we go through this piece, there are a couple of of
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questions that I I usually cover mini opening or no mini opening.
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Love mini opening. I don't understand where I and I
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never I'm going to tell you this.
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I've never gotten one in a criminal trial.
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Never. I've only gotten them in civil
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trials and I love them because let's be honest, like this idea
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that you can insulate in jury selection this jury from the
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facts. Like obviously, you know, and I
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tell jurors this like, look, you know, the lot of stuff's going
15:46
to be vague here because I mean, if me and the other lawyer had
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our way, we'd love to just preview our case and then say
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how you going to vote and be done with it?
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But we don't get to do that. But I do think giving the jurors
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some neutral set of facts, some some orientation to why we are
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asking you these questions. Because the most useless thing
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that happens in Vladir is when the jury knows nothing, the
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courts told them nothing. And you're asking them questions
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of what do you hear time and time and time again from jurors.
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Well, it depends. And I'm like, I know it really
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does. And I can't give you the one
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extra piece of information that would actually tell us whether
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you can be fair or not because of this particular, you know,
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facts. So you get all these useless.
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It depends. It depends, it depends.
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So I love a mini opening. I ask for it every time.
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Usually the other side doesn't want to do it.
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The other area that I I like to ask about, and Megan, you made
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reference to this, that civil lawyers often times have the
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luxury of doing focus groups either formally or informally.
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Did you have any sort of focus work for this case?
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No, and this, you know, the whole area of, you know,
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professionals that help plaintiff personal injury
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lawyers pick juries. I'd say if I have a bias, maybe
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I don't understand it, but I, I, my own two cents is that having
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picked as many juries as Emily and I have in very difficult
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cases, I dispute that another professional can come into my
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case and tell me how to pick a better jury.
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I mean, that's very, that's a lot of hubris that I'm just
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saying right now and I understand that, but that is
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maybe just a bias that I have. So, you know, I have since this
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trial used some big data models, which I find the big data model
17:53
in, in doing focus groups to be more productive for me.
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That is something that I feel like I can get some more, I can
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get some themes out of whether you're looking at the big data
18:08
model for trying to look at what is your damages ask or picking a
18:13
jury or whatever the like sensitive issues might be in the
18:16
case. I I have bought into that, I
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will tell you, but but bringing people in to help us do focus
18:25
groups or bringing in a jury consultant, Emily and I have
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never done that. For those who are less familiar
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with the big data model, can can you unpack what that looks like
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for you when you're doing those? Sure.
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So there are a handful of folks and other more seasoned
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plaintiff personal injury lawyers than us probably can
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rattle off all the big players in the space.
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But basically there's a handful of companies that will take your
18:56
facts and they will go out and do essentially focus groups, but
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for a much wider group of people.
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They'll actually design questionnaires and they'll send
19:07
out hundreds of these questionnaires.
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Usually those questionnaires are going out to groups of people
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that couldn't be potential jurors.
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So they're looking at maybe a jurisdiction that's similar to
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where you intend to try the case, but they don't want
19:21
someone to sign up to fill out a questionnaire that could also be
19:25
a potential juror. So they look for similar
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jurisdictions with maybe similar demographics.
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And then they they are able to then give you predictive models
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about how people feel about either certain topics.
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So I don't want to get too far afield, but you know, I did try
19:44
another public entity case in Contra Costa County in the last
19:50
12 months with a very favorable verdict for the clients.
19:54
And one of the issues that I had was Contra Costa is a little bit
19:58
more conservative than other Bay Area counties.
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And I had a one of the two women that were the plaintiffs that
20:06
went to trial in the case. One of them was in a same sex
20:08
marriage. And I just didn't know if that
20:11
was. Worth addressing in Voidir
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because I did Voidir in that trial.
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And so, you know, there were different questions we wanted to
20:20
be asked in with the team we are working at working with to
20:24
create the, the the data model. But that was one of the very
20:29
specific questions that I wanted to be asked is, is this
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something we should be concerned about?
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Is this demographic here in Contra Costa where there are
20:37
liberal folks, but there's also a lot of conservative folks out
20:39
there. Is this something I even have to
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talk about? And you know, we got some really
20:44
interesting feedback which it was a non issue, which surprised
20:48
me if I'm honest. And so I just, I checked it off
20:52
my list. I didn't ask any questions on
20:54
Voidir about, you know, the nature of one of the plaintiff's
20:58
marriage and whether that was going to matter to these jurors.
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And I'm I'm glad I didn't waste time on it.
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Interesting and and and part of the reason I I, I nod and say
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interesting is you've gosh, it's probably 2019.
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We tried a case in San Mateo County and it was the same sex
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marriage with a loss of consortium claim as part of it.
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And we use a jury questionnaire that was written in a way where
21:24
if the people were not in favor of same sex marriage, it
21:27
automatically would get them kicked off the jury.
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And we lost 25% of that jury back then.
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Wow. Yeah, that is fascinating and
21:38
disappointing. It was.
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Wow. Stunning.
21:41
Absolutely stunning. Hot down.
21:45
Yeah. Well, I have my feelings about
21:50
trying cases and well, I've never tried a case in San Mateo
21:53
County. I've, I've had the displeasure
21:55
of being there in Criminal Court.
21:56
So you're not you're not improving my my bias.
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Well, you know, that was a lot can happen in what is it six
22:06
years and at the same time this the country swung for the right
22:10
during that time. True.
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I've done a couple big data model tests in in a couple
22:16
cases, one that was about to go to trial and one that I actually
22:18
did try. I found that information to be
22:22
very useful. I think when people use big data
22:25
models to predict what they should ask in terms of the
22:28
number, I think that is incredible risk.
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I think that you really need to, I mean I know that there's
22:36
probably a school of thought on this about getting out right in
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your opening statement saying I'm going to ask for 10 million
22:43
dollars and $0.25 or whatever it might be.
22:46
You know, there's a lot of people that I've heard speak
22:49
that say you need to put that number out front and center.
22:52
Either you need to do it in what year you have to do it in
22:54
opening, you really need to precondition the jurors as to
22:56
what you think the reasonable amount should be.
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In this case I have also done the opposite.
23:02
This was not a case where we said we are going to ask for
23:05
$9.5 million and change for Marianas Meralda.
23:10
In fact, I think Emily and I came to the decision of what we
23:14
were going to ask for within 40 hours of when we gave our
23:18
closing argument. And I just think each case is
23:21
different. And so I think the risk with the
23:22
big data model is when you when you work with one of these
23:26
companies, they'll give you predictions as to what your 12
23:29
jurors, You know, 25% of the jurors are going to, you know,
23:33
return of verictive X. You know, 50% of the jurors are
23:37
going to return of verictive Y and 25% are going to say Z.
23:42
And I think when you rely on that too heavily, I think that
23:46
is a real risk for trial lawyers.
23:47
I think you need to read the room and really make those
23:50
decisions. In some cases you can put your
23:52
ask front and center, especially when you have a big life care
23:55
plan and you have a bunch of economics and you're going to
23:59
like walk them through why there's $10 million in economics
24:02
to start off with. I think those are easier cases
24:05
to come out from center and say this is what our ask is going to
24:08
be. Why?
24:09
I think the thing that you about this case is that this case was
24:13
almost entirely non economic damages.
24:16
And those cases I think are much harder to come to a, you know,
24:21
group of prospective jurors or to that group of 12 right there
24:25
an opening statement and say give our clients 10 million
24:27
bucks or close to it. I just think they have to hear
24:30
the facts and see, and you have to read that throughout the
24:33
trial, which we spend a lot of time reading our jurors through
24:37
the trial to see how they're reacting to testimony.
24:40
And then you can decide what they are going to be willing to
24:44
return and also how well the facts came out for you.
24:48
Megan's not telling this part, but you know, I had a crisis of
24:51
confidence going in to are we going to seriously ask early?
24:57
This is at opening and, and quite uselessly and, and in
25:01
getting in Megan's way, I had to shut myself up because she was
25:06
about to open. And I'm like, you know,
25:08
externally processing, like, I don't know if we can ask for
25:10
this much money, you know, Oh my gosh, you know, I just don't
25:13
know if it's going to it's going to pan out and oh, what are we
25:15
going to turn them off? And I was like, and Megan kind
25:18
of told me shut up. But I was like, oh, my God, you
25:24
were right. You're opening.
25:25
I need to shut up. And you know what interesting
25:30
was not only did I need to shut up and I should have known
25:32
better. I'm a trial lawyer.
25:33
You don't, you know, as I when I was do criminal defense cases.
25:36
I talk about I need blind, blind adherence to the not guilty.
25:40
We are all drinking the kool-aid, OK?
25:42
And if you can't drink it, I can't talk to you, can't see,
25:45
you can't smell. You can't know about you as an
25:47
existing part of my universe until this verdict is over
25:51
because I need that focus. And how dare I have taken that
25:54
focus away and, you know, and inserted this right before she
25:59
opened. And thank God I did not trip her
26:00
up. As I said, her opening was
26:02
fabulous and jurors were already tearing up at that point.
26:07
But I also started to see the value of this case in very stark
26:14
terms once the witnesses are talking and and you're feeling
26:20
it. That's the thing about trials is
26:22
you can big data model, you can jury consultant all you want,
26:26
but at the end of the day, it is an intimate experience between
26:30
the advocates, the court and these 12 people plus or minus,
26:36
you know, two to four others as the alternates.
26:39
And there is a vibe. You got a vibe check in there
26:42
and, and you start feeling it and, and in ways that you know,
26:45
no, no data model can tell you when you know juror #3 is giving
26:49
you the stink eye. And you know, sometimes you can
26:52
read too much into that. I've had jurors smile away at me
26:56
and nod and just tell me after is what a great lawyer I am.
26:58
And they drop my client like a bag of anvils, right?
27:02
So you can't read too much into that either.
27:04
But like, it is a thing. You have to feel.
27:07
It's an organic, unique process every time.
27:10
And as we started playing that out in this case, by the time we
27:14
got to closing, I was like, we need to go big.
27:18
This case is worth every penny of it.
27:21
And Megan's like, well, welcome to the damn party, senior it all
27:25
along. So a question there is if part
27:28
of the jury is cheering up during opening, if the witnesses
27:31
are as compelling as you're, you're talking about, did the
27:33
defensive myopia continue the entire time?
27:36
Did did they ever say, hey, look, it's it's time to, to, to
27:40
pull you in a corner and maybe we should explore some
27:41
resolution. No.
27:44
There was none of that. And trust me, I've done other
27:47
civil trials where that's happening in the background
27:50
throughout the trial and there's constantly discussions about
27:54
settlement before the verdicts read.
27:56
This was not that case. There was a very feeble attempt,
28:00
mostly because they were compelled by the court to
28:03
participate in mediation. There was absolutely no attempt
28:06
made to settle with us during trial.
28:09
One of the things that we had done in this case is not just
28:12
issue A998 shortly before the trial started, but I actually
28:16
wrote a really detailed letter to defense counsel that went
28:19
along with the 998 that said here are the reasons why that I
28:24
think you are going to lose this case.
28:28
You are really focused on these issues and these are the facts
28:30
that I think this jury is really going to care about.
28:34
And I also think that this case is incredibly risky for your
28:38
client because if they see the facts the way we do, there is a
28:44
chance for a verdict that's far exceeds our 99 eights.
28:49
And we really as a steward of public funds, and I think I
28:53
literally use that term, you are a steward of public funds.
28:56
We would ask you to revisit the way that you have evaluated this
29:01
case and seriously consider our 99 eights.
29:05
And it was really an interesting process after this trial was
29:10
over to go back and read that letter because literally 2
29:15
sentence by sentence, the best facts that came out were exactly
29:20
laid out in that letter. I basically gave it the preview
29:23
of what the trial was like. And so it's unfortunate.
29:27
I mean, it just happens sometimes that the defense just
29:30
doesn't see the case the way you do it, and you have to try the
29:33
case and you kind of have to have the balls to do that.
29:38
As a plaintiff lawyer, you can't be worried about it.
29:40
You know, you can't just assume that the case is going to settle
29:43
on the courthouse steps. You got to be willing to put 12
29:45
in the box. On the steward's point, my
29:50
understanding is the case is now on appeal.
29:52
I think you referenced that. So they still have not seen the
29:54
light. I don't want to get too far into
29:58
what's happening there other than to say, you know, we're
30:03
always here to talk. We're always here to try to
30:05
settle the case. We always want to do what's best
30:07
for our clients. And I always think that there's
30:10
a way to do what's best for our clients and also to maybe
30:13
benefit the defense in a way where we can soften the blow as
30:17
on a verdict like this. So, you know, we're not
30:20
unreasonable people. We're always here to talk.
30:22
And you can't take things too personally in this work.
30:26
You know, I really believe that. You know, again, coming from the
30:32
perspective of being long time public defenders, there's so
30:36
much animosity within civil practitioners.
30:39
That's hard for me to understand because as a former longtime
30:43
public defender, I was dealing with the same people all the
30:47
time. And it's not just you being
30:51
professional, although that's incredibly important.
30:54
It's also you just being honest and sometimes you go to battle
30:58
and that's OK. I mean, that's what that's where
31:00
I get, you know, that's where I use my sports background and I
31:04
apply it directly to trial work. You can go to battle against an
31:08
opposing team, but maybe somebody in that opposing team
31:10
is a really good friend of yours and you go out for drinks after.
31:13
I mean, that's the way you have to think about trial work.
31:15
So we never take ourselves too seriously or take things too
31:19
personally. And I think that's really
31:21
important. I I know for myself when I get
31:24
angry and I take things personally, I lose focus so I
31:29
never want to go there. I think what Megan said is so
31:33
important, not just for trial work, but just I think the
31:37
practice of the law. It is being a person of of your
31:41
word, being decent there. It costs you and your clients
31:46
nothing to be decent and to be kind and to be friendly, you
31:53
know, and we definitely try to keep that at all times.
31:59
And yeah, you know, doors are always open, you know, with the
32:03
appellate process is ongoing. But you know, we we always leave
32:07
out the welcome mat for conversations because why
32:10
wouldn't we? And I agree with Megan, you
32:12
know, it, it is, it is been an interesting transition from
32:17
criminal defense practice where particularly as a public
32:19
defender, but you know, when you're going to the same
32:21
courthouses and you're you're you're dealing with the same
32:24
prosecutors, you know, it doesn't do you any good to make
32:27
enemies on sometimes you can't avoid it, you know, in the sense
32:33
that maybe they've made an enemy out of you.
32:36
But I mean, you know, the person that you might be, you know,
32:40
full of incandescent rage about this issue on this case is the
32:45
same person that tomorrow or maybe in the same breath put
32:49
down that file, pick up the next file.
32:51
I now need to beg and plead and argue mitigation.
32:55
And could you pretty, pretty, pretty, pretty please see your
32:58
way to giving my client this. And so, you know, it just
33:02
doesn't make a lot of sense to make things hostile.
33:07
And so I think we really kind of bring that vibe to our our civil
33:13
practice as well. But you know, it's not always
33:15
met that way. So I joke that the lawyers are
33:18
far less civil and civil. A cruel irony.
33:22
Cruel irony? Yes, exactly.
33:23
We're we're working to change it.
33:26
As we we kind of wind things down, are there any point either
33:31
trial moments or takeaways wisdom that you feel it would be
33:37
important to to share with our listeners from either this
33:41
experience or, or other experiences you you've you've
33:43
had as trial lawyers? I would say for me, I am a
33:48
student of Jeff Adachi. You know, he hired me, he
33:52
trained me. And one thing has always stuck
33:56
with me that Jeff always used to say, which is that whenever he
34:00
got up to give an opening statement, the first thing he
34:03
did was write the the prosecutor's opening statement.
34:07
That was how he prepared to give them the criminal defense
34:10
opening statement. And I think that is something
34:13
that I take very seriously. And my plaintiff personal injury
34:17
practice is seeing the other side of this case.
34:20
How would I try this case if I was this other lawyer?
34:25
And actually, you know, I don't necessarily write out word for
34:29
word what I think the defense attorney is going to argue and
34:34
either opening or closing, but I'm certainly constantly
34:37
thinking of that. I like to think of trial as
34:40
intellectual warfare. And I imagine the pieces on a
34:45
chess board. That's the way I think of being
34:47
in trial. And so I'm I need to think like
34:50
my opponent. And that's what Jeff really
34:52
taught me as a public defender. And I think that's one of the
34:56
reasons why I've had some success as a trial lawyer, is
34:59
being able to see the other side and then anticipate and prepare.
35:03
For it. So that that is I guess one of
35:09
one of I guess the tools of trial work if you want to say
35:12
that I feel like I've learned over the years.
35:15
The other thing that I would say is that you have to sit in the
35:20
storytelling of cases. Storytelling is essential to
35:25
being a good trial lawyer. And that is also something that
35:28
criminal defense attorneys are really good at doing, is telling
35:32
a wonderful, compelling story, even sometimes when the facts
35:37
are all against them. And I think one of the most
35:41
powerful moments in this trial actually came in the closing
35:45
argument. I know Emily thought I gave a
35:48
great opening. That's great.
35:50
But, you know, I do think vouadir and opening are the most
35:53
important parts of the trial. But probably one of the most
35:57
emotional moments came in closing in this case, and it was
36:02
really Emily's bright idea. She was arguing liability for
36:06
the closing and I was doing damages.
36:08
So Emily did voidere, I did opening, and then we split
36:12
closing, which is what we've done in other trials.
36:16
And so, but Emily had, getting back to the fact that Maria's
36:20
young child was strapped in the car seat while she and her older
36:24
daughter being attacked, Emily had come to realize that that
36:31
young child was now almost the age to go to kindergarten.
36:35
And here our client Maria, she had very debilitating PTSD to
36:41
points where she had been agoraphobic in her home.
36:43
It was very compelling testimony to hear how this incident had
36:47
not just affected her physically, but affected her
36:50
mentally and in her very pervasive PTSD that she was
36:54
working very hard to address and being unable to do that.
36:58
How is this woman going to go and be on a school campus to
37:03
support her young child? And it's not just for a moment
37:07
in time, it's for the next 12 plus years of her lifetime.
37:12
There was a moment during closing when I was talking about
37:15
damages, and I brought that in and I said that little girl that
37:21
was sitting in that car seat, she's now five years old.
37:26
And I asked a rhetorical question to the jury, which is
37:29
and what happens when children turn 5 years old?
37:35
And the juror that ended up being our four?
37:38
Woman. She kind of made a sot, like she
37:42
looked up at the ceiling and kind of non verbally said they
37:47
go to school. She didn't actually say the word
37:49
she go to school, but I could see her mouthing the words they
37:53
go to school. And that was a moment in time to
37:58
explain to the jurors the real cost to our clients as to what
38:05
they had lost. And in particular Maria and
38:09
those kind of moments explaining not just, oh, this person has
38:14
pain and this is how it affects their daily life.
38:16
You have to go deeper. You have to explain who your
38:20
client is and in a much more fundamental level, explain how
38:25
this incident has impacted their lives.
38:28
And that was probably there were a couple of the really powerful
38:32
moments during the trial, but that was one of the most
38:34
powerful for me. It was a moment where you could
38:37
hear a pin drop in that courtroom and I don't think even
38:43
our clients had thought about that quite so bluntly at that
38:48
time either. Like it again, talking about
38:50
feeling the vibe in the room, you know, that was a moment
38:53
where the air was sucked out of the room in a way that was
38:56
really powerful for our clients because Maria had been a very
39:01
active parent. She was the go to all of
39:05
Esmeralda. She Esmeralda was on the color
39:08
guard. She would go to all the games.
39:09
She was that active parent who would pitch in and do whatever
39:14
it took and help out at school and that was never going to
39:17
happen for this other daughter, that was never going to happen
39:20
and that's a loss for both. Of them, anything else that you
39:24
think it would be useful for our audience to know at this point?
39:28
You know, it was an incredible trial.
39:30
I'm, I'm hoping and really looking forward to a conclusion
39:34
for Esmeralda and Maria, and I hope it comes sooner rather than
39:38
later. They deserve every, every bit of
39:40
it. And I think it's will be very
39:43
healing for them to be able to move on.
39:46
And it's just been, you know, I, I will say this, it is, it is a
39:49
wonderful thing to be able to stand up and, you know, use your
39:56
skills, your education, your resources to represent people
39:59
who are just so incredibly deserving.
40:02
And I think whether I'm on the criminal side of my cases or
40:06
the. Personal injury side of my case
40:09
is I'm, I've, I've always got the underdog no matter what.
40:13
And you know, I think it's a real privilege to be able to
40:17
represent the underdog. And I think it gives you some
40:21
resilience and some skills that really, I think play out well in
40:27
the trial context if that's where you've always practiced
40:30
it, where everything has been hard and it hasn't been easy.
40:32
And, you know, the wind is in your face and, you know, the
40:35
rain's coming down, and you still persevere.
40:38
And so, you know, I encourage people to do that a lot more.
40:44
Well, congratulations on your result.
40:46
I I will say just learning more about your practice and and your
40:50
thematic approach to how you do things.
40:53
The the, the legal field is vastly improved by your, your
40:59
practice and how you approach approach the world.
41:02
So thank you for that and thank you for your time.
41:04
Thank you, Miles. This has been great.
41:07
Yeah. Thanks Miles.
41:08
We really appreciate you inviting us.
41:11
Pleasure was all mine. Thank you and thank you for
41:14
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41:17
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41:19
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