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Trial Lawyer Talk Podcast

Updated 9 days ago

News
Government
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A Regular Podcast With Trial Attorney Scott Glovsky And Guests

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A Regular Podcast With Trial Attorney Scott Glovsky And Guests

iTunes Ratings

83 Ratings
Average Ratings
76
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1
0
2

Astounding!!

By 90210 law - Jul 01 2018
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Scott is a super star. I thoroughly enjoy this podcast! I learn a lot through these interviews.

Nice surprise!

By Claremont local - May 09 2018
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Entertaining and insightful. A hidden gem podcast!

iTunes Ratings

83 Ratings
Average Ratings
76
4
1
0
2

Astounding!!

By 90210 law - Jul 01 2018
Read more
Scott is a super star. I thoroughly enjoy this podcast! I learn a lot through these interviews.

Nice surprise!

By Claremont local - May 09 2018
Read more
Entertaining and insightful. A hidden gem podcast!
Cover image of Trial Lawyer Talk Podcast

Trial Lawyer Talk Podcast

Latest release on Sep 30, 2020

The Best Episodes Ranked Using User Listens

Updated by OwlTail 9 days ago

Rank #1: Trial Lawyer Talk, Episode 58, with Joey Low, Part 1

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Joey Low, one of the best trial lawyers in the country, wins the unwinnable cases. He discusses a capital murder case where he stood up to General James Mattis (who later became the United States Secretary of Defense) and to the United States government. His 23-year-old client, and seven other marines, were accused of killing an Iraqi civilian behind enemy lines. Six of the eight marines had already taken plea deals. Joey traveled to a war zone, into enemy territory riddled with IEDs (improvised explosive devices) that was no longer patrolled by the U.S., to recreate and get a sense of the sights, sounds, smells, and feelings of the events of the case.

Joseph H. Low, attorney4people.com, has a national reputation for his expertise in trial law. He has conducted trials all over the country in Federal, State and Military Courts. He focuses his attention in representing people who have been bullied by corporations and the government. Areas of his trial work have seen him with victories for his clients including personal injury, medical malpractice, business litigation, civil rights violations and criminal defense.

The murder Joey Low’s client was accused of occurred during his third tour in some of the most dangerous battle areas in Iraq. He was not guilty and taking a plea deal meant he would serve several years in prison and be required to testify against those who hadn’t yet taken plea deals. He was not willing to testify against his fellow servicemen.

Trying this case was a huge risk. Joey was informed by renown trial lawyers that it was not safe to be on the case, not safe to travel to Iraq, and the client would be brutalized by others – including the 6 marines who had already taken plea deals and would testify against him. The client also faced a potential lifetime behind bars or even execution.

Joey said as he worked on this case and reenacted the crime in Iraq, “a lot of people suffered and went through a lot of pain to make this right. It is easy to do the right thing, and it is hard to know what the right thing to do is.” “I’m grateful for the experience even though it was terrifying.”

Transcript of Episode 58, with Joey Low, Part 1

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky, and today we have a doozy of a story. Joey Low is with us, and Joey is one of the most spectacular trial lawyers in the country. He proceeds time and again to win the unwinnable cases. He’s got an amazing ability to tap into other people’s feelings and to connect with other people. Every time I sit down with Joey, I learn, and I’ve been doing that for many years.

I’m very pleased that he’s here today to share with us one of his amazing stories, and this story takes us to Joey standing up to power, standing up to General Mattis who later became Secretary of Defense, standing up to the prosecution of a murder case, and Joey traveling into a war zone to be able to recreate the events that happened in his case so he could get a sense of the sights, and the sounds, and the smells, and what it looked like and the feeling. And he wraps that into really a wonderful story of how he won his case. So, let’s get started.

I’m very happy to be sitting with truly one of the best trial lawyers in the country. Joey Low is a phenomenal lawyer who has been teaching great trial lawyers how to try cases for many, many years. Joey does criminal cases and civil cases, and he’s truly the only lawyer I know that goes around the country, tries cases, and wins the unwinnable cases, and wins big. I’m very happy that Joey’s taken the time to share with us some stories here today. Joey, thanks for being with us.

Joey Low:

Thank you for having me, Scott. That was a really nice thing you said. It makes me feel a little unworthy. I know I’m supposed to say this to be artificially humble, but, what? I know a lot of really good trial lawyers, and I never thought I was one of them, but anyway. So, thank you for having me.

Scott Glovsky:

Can you share with us the story of a case that had a profound impact on you?

Joey Low:

Yes, I can. There are several that come to mind. Yeah. But there is one that has come to mind very recently. I have a friend who recently graduated from law school. I went to his graduation this last May. When I first met this friend, it was 13 years ago, and I met him in a jail cell where he was waiting to stand trial for capital murder. It was a death penalty case. He and seven other Marines and one corpsman were accused of killing an Iraqi civilian, murdering him in the middle of the night.

So, the reason why this comes to mind is that once I started working the case I had a number of people on the team working with me, some of which are military lawyers because this is a military case. The facts involved, or at least accused, were that the squad, the Marine Corps squad, had been dropped off behind enemy lines in a place called Hamdaniya in 2006, and they had gone out and were supposed to be laying in waiting for insurgents to plant IEDs in the middle of the night, and then deal with them as a result.

Later that night, around 3:30 in the morning, there was a call made back to the rear to a unit called the QRF, which is the quick reaction force. The idea is, any time you engage or meet some contact, as they called it, or you’d get in a fire fight with the enemy, you’d call the QRF and then you’d get reinforced. They’re in the back waiting to … like being on call to come help you out. That call comes in, and they go out there. When they get there, they find a dead Iraqi in an old IED hole, and lying next to him is an AK-47 and a shovel.

As the QRF is looking at it and they’re taking reports and so forth, one of those guys looks over at the corpsman, and the corpsman just got kind of an odd look on his face. What unravels from there is that eventually NCIS gets involved. That’s the National Criminal Investigative Service. It’s a military criminal investigative service. They start conducting interviews, and make accusations, and the corpsman decides he doesn’t want to do this anymore, and says that the other seven Marines had drug this guy out of his house in the middle of the night, zip tied his hands behind his back, and drug him to this hole. Walked back about 100 meters, then shot him and killed him. Went back to his body, cut the zip ties off, laid the AK-47 next to him, and the shovel that they had brought with them, to make it look like he was digging an IED hole, because the rules of engagement at that time said that they could kill anybody who was actively involved in planting an IED.

Well, what the government sought to prove as to why they would pick this person was that they just claimed that the Marines wanted to target somebody in this little village or hamlet to intimidate them. That’s why these men were charged with capital murder and why they were going to go to trial. At that point in time, I’m told … I can’t confirm whether it’s true or not, that I had the record for winning a criminal case with the most rats. And, yes, I did say rats. The most rats that testified against somebody, which was three. Normally the convention is that if you have one rat in a case, you run down to the prosecutor’s office and you beg for a deal. If you have two rats in a case, you take whatever they give you, and you thank them for it. If you have three rats in a case, well, you don’t even take the case. Clearly, you give it to the public defender, because there’s no case, et cetera. Well, I had won a case with that many, despite what they had to say.

But in this case, one of the accused of the eight ran down and cut a deal right away. The government put a lot of pressure on her. As soon as the first one went, boy, they all started running down to the office, because each deal got worse. The first guy got 12 months. The second guy got 18 months. The third guy got … And the number keeps going. Also part of the deals that they were cutting is not only did you have to agree to it and do some time, but you had to testify against anybody else left standing.

So, they get to my guy, and the general, it’s General Mattis at the time, who used to be … he was Secretary of Defense. He wants to talk to me. I go down there and see him, and he says, “All right, here’s the deal,” and on, and on, and on. I say to him, “Look …” I think the deal at the time was eight years. My guy was number six out of eight. There’s three left that hadn’t taken a deal yet. I said to the general, “My guy will take what’s coming to him, but he will not testify against the other two.” The other six or the other five don’t matter because they already cut a deal. He was like, “Well, that’s not acceptable. There’s no exceptions. Your guy’s going to testify against the other two. Take it or leave it.”

I said, “Well, my guy’s been real clear he’s not interested in burying anybody else in a concrete tomb to benefit himself. That’s not how he’s built, and that’s not how he was trained, and that’s not what he’s going to do.” General Mattis, sitting closer to me than you are right now, about a foot away, a foot and a half away, leans in and says, “Son, do you really think you’re doing the right thing for your client?” I leaned in a little closer, and I said, “You know what, general? I think I’m doing the best possible thing I can for your Marine. How about you? You have the power to make this all go away. And all you have to do is say, ‘I can respect why you don’t want to rat on somebody else, and I respect you will take your punishment.’ But for some reasons that’s not good enough for you, is it?”

He sat back, and he gave me that look like, “I hate your guts,” but he was trying not to smile at the same time. I know what that means. So, we went to trial, and I was assigned as a lawyer on the case-

Scott Glovsky:

Wait. Let me back up.

Joey Low:

Yes, go ahead.

Scott Glovsky:

I understand that when you got the case you did a little travel to the scene.

Joey Low:

Yes.

Scott Glovsky:

Tell us about that.

Joey Low:

You want me to talk about it? All right. So, if I have had any successes in the past, it is because I’m one of those unusual nut jobs where I actually want to feel everything my client felt, and I want to feel everything that the witnesses involved in the case felt. So, what I do is I go, and I’ve always gone, to the scene of every case that I’ve tried, and I’ve done a reenactment in the location itself. Not only do I do a reenactment, but I play all the roles of the characters, or even inanimate objects, that are involved. Not only do I play all the roles, but I have somebody force me through questioning to go down to the very bottom layers of emotional content that are associated with whatever action’s going on so that I can understand not only what happened, but also how it happened, but mostly why it happened, and what I was feeling.

Well, in this particular case, unfortunately, the whole accusation happened not in the U.S. It happened in Iraq during a time of war and in a combat zone. I’m like, well, I’m not doing that. I’m out of the Marine Corps now. I’m happy to be out. But as I began to work the case and the enormous amount of information, and an even larger amount of lack of information, it just dawned on me. Just a voice in my head says, “If this case goes badly and this kid gets convicted, how are you going to feel that it’s the first one that you didn’t do a reenactment on? Are you going to be okay with that?” Well, unfortunately the answer in my head was no, I won’t be able to live with myself.

So, I made a decision that I had to do that, but that wasn’t easy. Logistically, I had to file a motion with the Marine Corps judge saying I want to go over there. That created a huge shit storm, as you can imagine. The government was against it, but the judge was persuaded and said okay. That put into action a lot of logistics. But essentially, I had to get into training again. Then I got issued gear, and then I got embedded with the Marines. Then I got flown over there, and then I got in their vehicles. They drove me out to where they were going to conduct an interview of a shake that they needed for some other mission.

Once that was done, they said, “Okay, well, this is it.” I said, “Well, this is not where it happened. This is not even close.” And they said, “Well, this is as far as we’re willing to go.” I’m like, “What are you talking about?” They said, “We’re not willing to drive to where it happened because that’s an area of operation that’s no longer controlled. We’re not patrolling it any longer. It’s enemy territory, and it’s violent,” which is the whole part of the story in the case anyway. Of course it’s violent. They were the same.

So, there in the presence was an Army lieutenant colonel. I’ll never forget this guy’s name. Never met him before, never heard of him, never seen him since, but his name was Pinkerton. That has a little historical, similar to … given our stagecoaches. But it is now his area of operation, this Hamdaniya area, but he’s not patrolling it either. I tell him, I said, “Look, man, I need to get out there.” And he’s like, “I can’t help you. I’m not going. It’s too violent, and we’re going to get shot at, and I’m not doing it.”

So, in that moment I’ve already spent I don’t know how much money, and time, and days, and I’ve been in the country now 10 days just to get where I’m at right now. You don’t just show up, get in a cab, and go. You have to go from military transport, to air transport, from base to base. You have to hopscotch. And they don’t have a special flight for you. You wait your turn. And you don’t make a reservation. You sit in a waiting room for days sometimes. So I finally got here, and I’m like, I better come up with something, otherwise this is over.

So I told him the story. I told him the story of a guy who had been on his third deployment, and on his first one he was an OIF-1, which was the most violent part of the Gulf War, with this Desert Eagle operation. He had seen a lot of really ugly, bad combat, but somehow survived it, went back to training, and came back for his second round and got the next worst, or if not even far worse encounters, and that was for the Battle for Fallujah where President Bush ordered all these troops to go in and root out the insurgents who had stockpiled and entrenched themselves in the city of Fallujah anticipating the Marines coming in, in retaliation for the execution of those four Navy SEALs who were working as contractors, and they hung them from the bridge, and their charred torsos are swinging back on ropes.

I said, this kid, during that battle, was upset that people were not taking their turns kicking in doors, which is the job that nobody wanted. He felt bad because a couple of guys in the squad were taking everyone else’s turn because that’s just the way they are. One of them was his friend, and he felt badly that his friend was now going to do it for the third time in a row. Because it basically is like playing Russian roulette. One of the times you kick the door in, there’s going to be somebody standing there and you’re going to get shot. That’s just how it goes.

So, his buddy went to do it again, and he said, “Refuse, I’m not going to let you do it. It’s not right.” And so he kicked the door in, and there was a man sitting there with a shotgun. The boy was the rabbit they saw in the street who ran into that door, and that’s why they ended up at that door chasing the boy, because they weren’t supposed to be there. It was bait. Kicked the door in, and that blast hit him in the chest with a shotgun about three, five feet away. It’s a kill-shot, you’re dead.

He survived it. It all went into his armor plating, they call it a SAPI plate, and his protective armor. But it did knock him down the stairs, broke some ribs. He got some shard in his face. He got wounded, but he didn’t die. I said, “I’m sure you’ve seen combat like that, too, Lieutenant Colonel, but this man is now languishing in a jail cell because the reason why he’s in there is because his buddies were ordered to go drag this guy out of a house, and to kill him because he is the one who’s been planting all the IEDs along the supply route between Baghdad and Fallujah. They were killing a lot of Marines, and they’d warned this guy to stop doing it, but he wouldn’t stop doing it. So they went out there to execute him, but my guy said he wouldn’t have anything to do with it because he didn’t believe in it.

But when his buddy behind enemy lines went in to kick in doors to find this guy, he just went in there with him to make sure he didn’t get shot by the people in the village. But he never shot the guy.” So I said, “That man’s going to spend the rest of his life in prison for caring a lot about somebody else, and actually more about that person than he did himself, which is exactly what he was trained to do. And now he’s being told as a result of him doing exactly what he swore he would do, and trained to do, which is protect somebody else, and he didn’t shoot the dead guy, he’s going to die in prison. He’ll never get an education, he won’t have a woman, he won’t have a child, he won’t have a family. I don’t know about you, but personally, I’d rather die than do that.”

He sat there and looked at me, and he put his head down and took his cover off, which means his hat, his Army hat, and ran his fingers through his short hair. Cussed a few times, got up, drank some more of his high-octane energy drink. Looked like about the third or fourth can. Sat back down, sat in his chair, crossed his legs, put his hat back on. He said words to the effect like, “You bastard. I’ll take you in there, but the first sign of trouble, we’re gone, and we’re running like hell. I’m not going in there to take these people on because I’m not equipped for it. We don’t know what we’re getting into.”

Then I said, “Colonel …” It’s more respectful to call a Lieutenant Colonel, Colonel. I said, “Colonel, trust me. If there’s some firing, shooting going on, I bet I leave you at least 20 yards behind as I’m the first one getting back in the vehicle.” He laughed, and he goes, “Hell no.” So anyway, this guy did what the Marines were not willing to do. He loaded me in his vehicle. He’s got his interpreter. He took me out and drove me all the way out there through these IED ridden roads, most of them dirt and gravel, through the hamlet. He got out of his vehicle, which he didn’t have to do, and he actually did more than he said he would do. He went with me to every single door on every single house. There was, I believe, 12 of them. He banged on every one of them and had the people come out, and he used his interpreter to find out all the information I was looking for, and I did my reenactment.

Now, what’s most interesting about that story is what I got from that, and it was this. It was a sound. In arriving out there, it was a sound. The sound I heard was this chorus of dogs barking some big, deep, heavy, slow barks. Some with those little Chihuahua-sounding barks, they’re fast and they’re sharp. And then everything in between. I didn’t think anything about it at the time, it was just a lot of dogs. But as I reflected upon it, and as the case was being worked and I was getting closer to trial, it dawned on me that that was a Baghdad burglar device, which means that they don’t have fancy in-house cable alarm systems that speak an electronic female voice that says system armed or disarmed, or front door open. What they have are dogs who will start barking when you’re 250 yards, 300 yards, 300 meters away, and all the way in. And they’re not happy to see you when you get there. They don’t attack you, but they’ve been barking for a while.

Okay. So what, right? One of the issues came down to the government trying to convince the jury that the man that had been executed was a poor, lonely, old goat farmer. That’s it, just some harmless old man, just living his life, raising goats. But because the trip that I had gone on, and the other things I’d done while I was there, I had learned, and discovered, and found files on this guy through old records in old, abandoned buildings that used to be the police departments and government buildings, that who he really was, was a demolitions expert from the Iran-Iraq War.

Why is that relevant? Well, it turns out that behind his house, in the field behind his house, out in the middle of nowhere, the government had found the largest weapons cache they had ever found that was not on a military base, an Iraqi military base. A weapons cache means someone had dug a big ditch in the dirt in a farmer’s field right behind his house, and put in a huge amount of guns, ammo, and shells, or if you will, large bombs. That’s what they were using to plant IEDs.

So I suppose it’s a coincidence that the one area between the main supply route for the Allied Forces from the west into Baghdad … It’s a single road, like driving from L.A. to Vegas. And along that route, you have this hamlet, this village, and it just so happens that one of the top bomb manufacturers from the previous war has a huge weapons cache sitting in a field behind his house, and this is where all these Marines are getting slaughtered as they drive by, and they get blown up. My point is, it wasn’t exactly as the government is trying to get the jury to believe. Until the government says, “Well, he had no idea about that weapons cache.” I’m like yeah, I don’t believe it. But remember, everything we do is about what you can prove, not about what you know. All of a sudden, it dawned on me. Those dogs.

So, I ask the NCIS agent who’s now on the stand … and NCIS, again, is National Criminal Investigative Service. They’re the people who did the investigation for the … They’re cops, if you will, and they work for the prosecutors and put the case together. So he’s on the stand and he’s saying all this stuff, and then all of a sudden it dawned on me. I said, “Hey, do you remember when you went there.” He goes, “Yes.” I said, “Do you remember those houses?” He goes, “Oh, yeah.” And I did it in a way to challenge him and pretend like he hadn’t actually been there so that he’ll offer more than I need him to. He’ll brag on how much he knew. I needed to do it that way so he’d volunteer a lot.

He goes, “Oh, I was definitely there.” And I said, “But you may not have seen all the …” “Oh, I saw all the houses.” “Well, maybe you didn’t get a chance to get close enough to …” “Oh, no. I definitely went into every one. I walked in.” I said, “Tell me, if you were there, and I’m sure you were, but since you were there, you must know the answer to the following question.” He goes, “What’s that?” I said, “What did you hear, if anything, before you got close to the homes, as you were driving close to them or walking?” He goes, “I don’t remember hearing anything.” “So, you’re sure you don’t remember hearing at least one dog, maybe two?” And he goes, “You know what, come to think of it, those dogs will light that place up. Boy, you even get slightly close, and man, they were howling, and growling, and barking. They had a lot of dogs out there running around.”

I said, “Yeah. How do you think that the people who dumped all those weapons into that hole, that cache, were able to do so and not have those dogs bark and tell the owner that you say didn’t know a thing about it?” And his face went blank. There was absolute quiet in the courtroom. Even the people who were writing or scribbling, and the sketch artist, everyone was like, “Holy shit.” Because what had happened is, we had told a story along the way, which I haven’t told you yet, that you wanted to believe, but it was always missing one fact. And every single time you’d make a little ground with it, they would have a counter-fact. Then you would have one to that, and you were watching like a good tennis match where the ball’s going back and forth across the court, and you know someone’s going to miss it. And whoever misses the ball is going to lose a point, and that’s going to be the end of it.

So that … Purposely, again, I’d told the story in a way where I was waiting for that to happen. I rolled my dice on this thing. I had no idea it was going to happen this way. But that’s really the last answer. When I did that, it was the first time in his entire testimony he had no comeback. Some of them weren’t that good, but this one, it just shut him down, almost like watching that portion of 8 Mile where the guy goes, and then the guy can’t respond and just chokes up. He chokes up, and just stood there and looked around, and then started looking at the jury. Then he couldn’t look at them anymore, and he looked at the ground.

As I’m standing there, your lawyer mind says, “Well, I better ask another question, or I better ridicule him, or I better do something.” And no, I just said you know what, I’m going to let it sit. And the silence got uncomfortable after a while. But I wasn’t going to be the first one to break it. Then finally, he looked up, he looked over at me, and I just stood there like I’m still waiting for the answer. He just said to himself and to everyone else who could hear, he goes, “Yeah, I’ll never forget those dogs.” It’s beautiful.

So the point of the story is that yeah, I got shot at a lot on that trip, and yeah, I got stopped. I was terrified. I had this guy who was driving this car that I was in, who would just be sitting on the road waiting sometimes because we had a minesweeper in front of us. He’s this big Swedish guy, even though he was in the Marine Corps. But anyway, he had these big lungs, and he yelled at the top of his lungs, “Boom!” Like he’s making a bomb sound. First couple of times, it’s like, well, I ain’t going to let him see me sweat because I’m a former Marine. I ain’t going to let these fools see that.

But by the eighth or ninth time he did it, I got … Man, I was like, “Man, you’re killing me with that.” That was his way of dealing with the stress because the whole time you’re out there, if you’re not getting shot at, and you had to hear it on the side of the car, or on the glass, you’re worried that this is … you’re going to get blown up. Why am I even bringing this whole story up to you? We went to trial on that … one of the-

Scott Glovsky:

Let me interrupt you for a second.

Joey Low:

Yeah.

Scott Glovsky:

Because I can see your tears.

Joey Low:

Mm-hmm.

Scott Glovsky:

If your tears could talk, what would they say?

Joey Low:

I don’t know. They would probably say … There was a lot of people who suffered and went through a lot of pain to make this right, and it’s hard to know what the right thing to do is. It’s easy to do the right thing. It’s hard to know what the right thing to do is. I guess that gets to the last part of this story, and that is, I had some military counsel assigned to the team as well so that we had both … It was a military court-martial, of course. We wanted to make sure we had everybody on the team that was best at their position. That’s part of putting a good team together. Can’t win the World Series if everybody on the team is a pitcher. You need the good first-baseman, shortstops, catchers. You get it. Anyway.

So, the military gave me their number one trial lawyer that they had at the time. He’d just won again for I don’t know what year in a row. But at one point while working a case up, he got my client alone without me and he convinced the client he needed to take a deal because there’s no defense, there’s no way to win. As a result, if he goes to trial, he’s going to lose and lose big. Because at one point … Again, it was capital murder. They’re going to execute him. Then another point, they were willing to offer a deal where if they did this and the other, he would get life without the possibility of parole, which means the best sentence he could get was buried alive in that prison. He’d never see the outside of it. And this is a young kid. He was 23 at the time.

So, the client breaks down, cries, the whole bit. He’s willing to take a deal, and I have to find out about it through another channel. Like, what? That’s my client. So I went and interviewed him, and he said, “Look, I just … It was a moment of weakness.” This, that, and the other thing. “I felt really bad, and the guy just terrified me.” So, I talked to the lawyer about it, and he was adamant about it. I said, “Look, if that’s what you believe, you’ve got to advise your client. I’ve got no problem with that. What I do have a problem with, though, is with you trying to execute and see it through without telling me. You’re not the lead lawyer on this.”

So, anyway, he decided he didn’t want to be part of the team anymore, and he got out of the Marine Corps, actually, and went to work in the civilian practice. But again, everyone was saying there is no defense, there’s no way to win, and you’re going to have six rats testifying in this trial who were also there. This is insanity to try this. It’s malpractice, is what I was told by a lawyer, to try the case. So yeah, there was a lot of pressure on there and I’m terrified. I remember going to the ranch and doing a psychodrama about it because I was just like, how am I going to try this case?

I got Gerry Spence, the Gerry Spence, telling me, “You’re an idiot. Why would you even take this case? I’m telling you, it’s not safe for you to be on it. It’s not safe to go to Iraq. There’s no triable issue here. You’re going to … That kid’s going to get brutalized.” So, after doing the psychodrama and getting real with it and how I felt, I came back and saw the client. I told him, “Look, man, you need to take the deal. You’ve got no defense. You’ve got all these rats who are going to testify against you.” He’s the only one, by the way, who didn’t give a statement to NCIS during the investigation. So they didn’t have any statement to use against him.

But he goes, “Look, I’m right, and I’m good, and I’m accepting my fate with my decisions.” But he said, “Let me ask you this.” I go, “What?” He goes, “Without all the things that everybody else has said, and all the other things that are at risk, if you cleared away all the debris, answer this question.” And I go, “What?” He goes, “Do you think you can win it?” So, after I got through the same kind of tears I’m having now, because I’m reliving the moment … While I’m sitting there in his cell by ourselves, and the smell, the horrible smell in those jails, and the yellow crud that somehow accumulates on the walls and they can’t scrub off, and the feel of that metal, and the way it rattles your body when the jail cell slams shut and you can just feel it vibrate through the floor and up through your feet, just the sheer disdain, and the ugly facial expressions that even the guards give you there … It’s truly banishment, which is … psychologists will actually tell you it’s the worst form of punishment there is, is banishment.

After I was able to take a minute and calm my mind and get my breath, I said to him, “Yeah, I think I can.” I couldn’t tell him why. I couldn’t tell him how. I had done four focus groups at that point and had some pretty good feedback, but that’s not real. Not in this kind of situation. Because if I guess wrong, he’s down for the count. That’s it. But I said, “Yeah, I think I can.” So, the reason why I went to a graduation last night, because after we went to trial and won, which we were the only ones who did out of the eight, he got sent back to a grunt unit after I had another meeting with General Mattis, which we’ll … That’s another discussion.

Got an honorable discharge. Got him … Stayed very close with me. He was over to my house for every holiday, all the functions, go on vacations with my family, got him into college, which he’d failed miserably at before. He never graduated high school. He got a GED. But he had a terrible history with academics. Worked on that step by step. Got into a community college first, then he ended up going to UC, California, after that. He graduated the top of his class in his focus, or his major. Got a job, did well with that. Decided he wanted to go to law school because he had some connection with me and his past. Went to the same law school I did.

At his graduation this last May, I met his wife. Sorry, I met his fiancée, who he is now getting married to. And a week ago, I got a picture of his new baby who had just been born. So, I get emotional about this story because there has been plenty of times in my life where, since I ran away from home, I was on my own, there’s plenty of people who do not, or will not, or don’t want to believe in you. Well, that’s fine. But occasionally, somebody comes into your life who makes all the difference. And the reason why they do is because they care. I can’t even really tell you that they did something specific, or they gave me something. Mostly, it’s because they are willing to be present, and they care about you, and they’d let you know, and they would be there for support emotionally, and they encourage you on past the limitations of your own insecurities. I never thought I’d ever be able to pay them back.

One of those people was Gerry Spence for me, and he said, “You’re not ever going to be able to pay me back. But like,” and you’ve heard this before, Scott, “but like we believe with the Native American tradition, a gift isn’t complete until you pass it on.” He says, “The only way you pay me back is you pay somebody else back, or pay it forward, or pass it on.” And so, again, the tears now are … If I never do anything else for the rest of my life, I will remember that moment on my deathbed because I got to see someone I care a lot about get to feel what it is when your own child melts on your bare-skinned chest right after they’ve been born. Just the feeling of that connection you have with a child is one of the five forms of love available on this planet, and in my opinion, is the purest one.

It’s such an honor to feel that I had some small part in him getting to experience that, because he was so deserving of that because of the way he took care of all his fellow Marines when he was in the service. I had a long line of people who testified at his trial, many which were famous in the Marine Corps and in the military for being heroes and doing incredibly heroic things in combat. They had a lot of rank, and they had enormous medals. They were legends. And these guys are on the stand testifying for my client, many of which were in tears, which you never see in the Marine Corps, because they said they were willing to do it because of how many times he was always willing to take care of everybody else, then put himself last. That’s a-

Scott Glovsky:

And he put his life in your hands, and trusted you despite everybody else abandoning him, if you will.

Joey Low:

You know, just hearing you say that, it just dawned on me. Maybe he changed my life more than I did his.

Scott Glovsky:

And maybe you were the father to him that you never had.

Joey Low:

Yeah, that feels true to me. I’d never thought of that, either. We’re not going to get into daddy issues today, but yeah, that’s absolutely, 100% … no one’s ever said that to me before. I’ve told this story before, but yeah, that I think you were right on. That feels absolutely true to me.

Scott Glovsky:

I can sense a lot of healing through your love for him.

Joey Low:

Yes. That healing didn’t happen right after the verdict, though. But you’re right.

Scott Glovsky:

Take that in.

Joey Low:

Yeah, no, you’re right. There has been a lot of healing that has gone on since that moment in time, and it’s the kind you cannot do overnight. But I had no idea how to put those two together, so I agree with you. Again, that’s the first time I’ve heard that. And I’ve paid people to tell me intelligent things about how to heal, and they haven’t said that. So I think you’re right. That feels true, and I’m grateful for the experience, even though it was terrifying. Terrifying. So, that’s the answer to your question about one of the cases that comes to mind.

Scott Glovsky:

You know, the feeling of heroism, the concept of heroism … as you were telling your story I could hear the chimes from the university bells down the street, and the chimes of freedom and chimes of justice. That just felt right.

Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate if you could give us a good review on iTunes, and I’d love to get your feedback. You can reach me at www.ScottGlovsky.com. That’s SCOTT, GLOVSKY, dot com. And I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials, A Primer for Lawyers. That’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials. Have a great week, and we’ll talk to you in the next episode.

The post Trial Lawyer Talk, Episode 58, with Joey Low, Part 1 appeared first on Law Offices of Scott Glovsky.

Dec 23 2019

42mins

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Rank #2: Trial Lawyer Talk, Episode 57, with André Gauthier

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In this episode, Scott talks to Louisiana attorney André Gauthier. Mr. Gauthier tells the moving story of a wrongful death case.

Transcript of Episode 57, with André Gauthier

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast where we have great lawyers telling great stories of cases that had a profound impact on them. Today, I’m very happy that we have André Gauthier from Louisiana. André is a real stud, an excellent trial lawyer, an excellent human being, and he’s got a heart as big as the state of Louisiana. He’s always interested in learning and growing and getting better despite the fact that he’s already absolutely phenomenal. So let’s get started.

I’m very happy to be sitting with a great trial lawyer and a great man and a good friend, André Gauthier from Gonzales, Louisiana. André, thanks so much for being with us.

André Gauthier:

Well, thanks for having me and saying such nice, kind words about me. I really appreciate that.

Scott Glovsky:

Can you share with us a story of a case that had a profound impact on you?

André Gauthier:

Yeah, I would think that a case that had a profound impact on me, and I know you will probably be asking me in this conversation why, but I’d represented a kid with my law partner, Jody Amedee. His name was Tony. Tony was in a facility in Lake Charles, Louisiana. Tony was 39 years old in chronological years, but he had the mental aptitude of a four-year-old. The facility killed Tony.

Scott Glovsky:

Share with us how.

André Gauthier:

What they did was they took Tony and they had sent Tony home for the weekend and Tony was the love of his mother’s life. He had many brothers and sisters and I remember when I went into their home, all of the brothers and sisters were … this little modest home, all of their pictures were on the wall. And up at the top, the biggest one up at the top was Tony. And Tony when he was four years old, he suffered encephalitis and it damaged his brain. He stayed at four years old and they put him in this facility.

And so he had went home. He was going home for the weekend and he was like a toddler. He was excited to be going home and he got home and his mother said, “Well Tony, you don’t look well.” He goes, “Mama, I don’t feel good.” So Mama says, “I think we better take you back to the facility.”

And she brought him back to the facility and when she returned there, she said, “I cannot believe that you let me take him home like this.” They said, “Well, what are you talking about ma’am? He was fine when he left here.” She said, “Well, he’s sick and he needs to be taken care of.” They told mom that they would get Tony some attention, medical attention.

The next thing that happened was mom was lying in bed one night and she got a phone call and they said, “You need to come to the emergency room, immediately.” And when mom got to the emergency room, Tony was laying in a bed and he was not conscious. They had all kinds of tubes and things stuck into him and they were helping him breathe and she said, “What’s the matter?” And they said, “He’s drowning.” She said, “What do you mean he’s drowning?”

His lungs had over four liters of fluid. Over 14 days he gained 41 pounds. His lungs were so full of fluid that Tony’s heart was jammed up against the left side of his rib cage. You could see it on the x-rays.

When we asked, “How did he get this way?” They said, “He was fine up until about 15 minutes before we took him to the hospital.” And I knew that couldn’t be true. And then it just got worse.

Doctored medical records. Fabricated medical records. Backdated documents. Lies upon lies. As we investigated that incident, I could see in the medical records over the years where he had been burnt with cigarettes. They wouldn’t put his protective helmet on, had 9 stitches here, 7 stitches here, 15 stitches here. Just stitch after stitch in his head. I’m like, “Why wouldn’t you make him wear the helmet like the doctor said? They say, “Well we made him wear his helmet.”

Just lie after lie. And to do this to someone who is so vulnerable, so innocent, so beautiful in the eyes of so many people, and to treat him like that, it’s left some type of scar on me.

Scott Glovsky:

Where are you in this case? Because I can hear the pain of André.

André Gauthier:

Well it brings back a feeling that I get often. It’s a vibration inside of me. It’s a sickness that’s coupled with an anxiety. It’s a sick feeling in the stomach. An anxiety, a chaos in the chest. And I know that when I feel that it’s something that I accept and it’s just fuel and drives me very, very hard.

Scott Glovsky:

Where does that come from in your past?

André Gauthier:

I think it comes from when, although I was a big kid, I never could mature enough to sort of control my body, so to speak. In other words, I was just a big clumsy kid. My body was always too big for me when I was a kid and I was never a real good athlete. I had people call me clumsy and things like that. I would say that, that just resonates with me with the way that he was treated. Maybe he was treated less than because of his inabilities.

Scott Glovsky:

So if your feelings could talk right now, what would they say?

André Gauthier:

If my feelings could talk right now, I would say most predominantly just sadness, a loneliness, an emptiness, a helplessness, maybe.

I think about him in this moment, and they were trying to substantiate how extraordinary the care was. And I get this orderly and the orderly tells me that when they noticed 15 or so minutes before they brought him to the hospital, which he was perfectly fine before then. I asked him, I said, “Sir, what did you do about it? He says, “Well, Tony was lying in the bed and I got up in his bed with him and laid with him and consoled him.” And to me, this orderly was probably a 38 year old male. And just considering the things that I was seeing in the medical records about the way this facility was run, I’m like, “What in the hell is an orderly doing spooning dying Tony in his bed?” And it just made me sick. That image. Absolutely disgusting.

Scott Glovsky:

And what did you do with that that feeling?

André Gauthier:

That feeling, it morphs into just an internal vibration. It’s a vibration that is used. I’ve always used it. I’ve always felt it. And it’s just a fuel. It’s just a hard driving. I believe that there are, there are chemical associations with it. I think it is a form of the production of adrenaline in the body. So it’s a chemical and the chemical fuels me and drives me such that in my mind it is just a relentless pursuit of getting down to the bottom of it.

Scott Glovsky:

So you’re in this story and you’ve discovered this horrific pain and these lies that you’re facing. What happens next?

André Gauthier:

What do you mean what happens next?

Scott Glovsky:

In your work on the case? It sounds like you’re in depositions and being lied to. Where did it go?

André Gauthier:

Yeah, so what I want to do is I want to relive as much as I can about the case in order to understand it. I want to become Tony. I want to become mom. I want to be the orderly. I want to be the fluid in his lungs. I want to be able to visualize the, I think they called it a mediastinal shift, which happens when they try and remove that much fluid. When you remove the fluid, you either let the person drown or you just punch a hole in the side of their chest cavity and you drain the fluid, but it results in mediastinal, I think is the word that they used. It’s been years, but it’s a shift and that shift will kill you.

When they punched the hole in Tony, the fluid hit the ceiling. When they punched him in the side of his chest cavity, there was so much pressure when they tried to put the tube in, the fluid squirted onto the ceiling of the hospital room. So, I want to be able to visualize that. I want to be able to see it. I want to be the orderly. I want to be the scalpel that cuts into his chest.

We use our psychodramatic techniques to help us get there. And it gives me a better understanding. It allows me to see it, and when I see it, I can begin to try and describe what I’m seeing so that I can use words to help people understand what I saw and experienced.

Scott Glovsky:

And it sounds like he passed away.

André Gauthier:

Yeah, he died the night that he was brought into the hospital. He sure did.

Scott Glovsky:

So how do you deal with the pain that comes from the caring and the connection to Tony and his family?

André Gauthier:

You know, I don’t know if I ever specifically dealt with that pain of what I experienced in that case. I’ve been more consumed with dealing with the pains that I’ve suffered over my personal life and trying to deal with those pains. I’ve found that the pains that I’ve suffered as a child have impacted me far more than the pain that I may see in a case like this. I’m not really sure how to answer that question except to tell you that the effect of the case on me was just to … I’m not quite sure how to answer this. The pain, the pain that I felt was … it was the pain of the way human beings would treat another human being and then lie about it and fabricate to cover it up. And that hurt me but I think that pain came out in anger.

And so I was able to not just go in front of a jury and just begin to vomit anger on them, but I think that during the trial, the jury understood the anger. As time proceeded, they could see the anger. I believe that through that process, that was probably the process of the trial, was probably a cathartic thing for me. To see a jury understand and be able to relate and take care of my people. I think that heals me and brings me some bit of closure.

Scott Glovsky:

Thank you so much for sharing your story with us, because that’s inspiring. Seeing your connection to your client and your dedication to learning the story and your caring, is really a role model for all of us. Thank you very, very, very much.

André Gauthier:

Well, thank you so much for having me here today. I’ve never been a part of a podcast. I’ll watch God Friended Me and it involves a podcast and I love the series. So it’s kind of interesting to be here talking into a mic like God Friended Me. But I appreciate you having me today. It’s kind of strange to be here and having someone asked me about my case because there’s a part of me that’s like, “Should I even be talking about my case? Should I do this?”

I mean, is it against what I’m trying to do in my personal life? And that’s not to be braggadocious and that sort of thing. I just appreciate you being interested in me. You’ve always showed an interest to me. One of my first psychodramas with you had a profound impact. It was a profound impact. It brought about an anxiety producing moment where I shut down and I’ll never forget you and I appreciate you for it.

Scott Glovsky:

Well, right back at you. I love you brother. And I also want to share with you and with our listeners what you shared with me a few minutes ago. That you’re devoted to being in service to other people and through this interview you are being in service and helping lawyers around the country become better lawyers and therefore help their clients. So thank you.

André Gauthier:

Yeah, I want to be in service. I know that being in service is being in service, but really it’s a selfish motive. Because I know that one of the ways I can keep myself sober and straight and in between the ditches is if I’m in service for other people. It actually helps keep me grounded. So I appreciate it. I appreciate your interest and I love you so much.

Scott Glovsky:

I love you too.

André Gauthier:

Thank you.

Scott Glovsky:

Thank you. What a what a wonderful afternoon I’ve just spent and we’ve all spent. Thank you.

Thank you for joining us today for Trial Lawyer Talk. If you liked the show, I’d really appreciate if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s S-C-O-T-T, G-L-O-V-S-K-Y.com and I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials: A Primer for Lawyers. That’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.

The post Trial Lawyer Talk, Episode 57, with André Gauthier appeared first on Law Offices of Scott Glovsky.

Nov 14 2019

21mins

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Rank #3: Trial Lawyer Talk, Episode 56, with Jim Buxton

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In this episode of Trial Lawyer Talk, Scott talks to Oklahoma attorney Jim Buxton. Mr. Buxton tells Scott about connecting with his clients and a case that profoundly affected him.

Transcript of Episode 56, with Jim Buxton

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky, and I’m your host for this podcast where we speak with some of the best trial lawyers in the United States. We simply have great lawyers tell great stories from cases that had a profound impact on them. So let’s get started. I’m very glad to be hanging out with my pal Jim Buxton, who’s a wonderful lawyer, wonderful human being, super talented guy, and Jim practices in Oklahoma. He does criminal and civil work. Jim, thanks for being with us.

Jim Buxton:

Thanks for having me.

Scott Glovsky:

Can you share with us a story of a case that had a profound impact on you?

Jim Buxton:

Stephanie and TJ Chartney came to me about four years ago with a problem that I don’t know how I would’ve dealt with had it happened to me. They were a young couple and their home had been destroyed and nobody would help them. I believe they’d been to a couple of lawyers before me and they were rejected. Said, “your case ain’t good enough,” or whatever it was. I remember developing this relationship with them. I came and I heard their story. As we grew closer, just like any relationship, like ours, ours didn’t start off as friends. Hell, we didn’t know each other. But over the course of time, Stephanie and TJ we would meet and talk and develop this relationship, and I’d go to their home, or what was left of it.

Their house was destroyed by sewage from a city government, and I’d go sit in it with them, and smell it, and feel it, what it felt like. We developed this real close personal bond, which is good, but by the time we get to trial, she looks over at me right when we’re waiting for the jury and she says, “I don’t care anymore.” And at first I was just hit like, “What do you mean you don’t care about the outcome?”

Scott Glovsky:

Reverse roles with her.

Jim Buxton:

She says, “Jim, what you just did for us …”

Scott Glovsky:

You are her.

Jim Buxton:

Yes. She said, “Jim, what you just did for us, who cares what the outcome is? It doesn’t matter. All we wanted was somebody to hear us and fight for us.” And getting out of her role, she broke down in tears, she and her husband, and we’re from Oklahoma, and it’s hard for Oklahomans to ask for help, in my opinion. We’re just doing ourselves kind of people, get through any kind of situation. We don’t need anybody backing our asses up. And to realize that all of my clients want is to be heard and for somebody to fight for them had a profound impact on me. I was like, “Okay.” So, we’re waiting and the verdict comes back and it’s a really good verdict. So, everything’s happy and the story ends well. Then, the appeal comes and the case, part of it, gets where we have to go try it.

So, I’m recommending that we probably should try and settle the case, and she goes, “Jim, do whatever you want. I told you already, you’ve already satisfied my needs.” And so, that’s probably the closest connection that I’ve ever had with a client. That story of them and the trust that they had in me, and just believing in me because I heard them, it was profound.

Scott Glovsky:

So, take us more into the details of the story.

Jim Buxton:

Of the story of the case, or the story of-

Scott Glovsky:

Yes.

Jim Buxton:

Well, we do a bunch of government cases where I sued the government for failing to maintain their utilities. Literally, when things go wrong with the sewage line, it blows it like a fire hose into your house. Imagine a fire hose of sewer with turds and every unimaginable thing you could imagine, and the sewage system being blown all through your home. Who do you have to sue? The government. And so, maybe what I think is how they arrived at me and feel the way they felt about me was because, if I reverse roles with them, it’s the rejection, right? Not only the betrayal of what the city did, by pumping their house full of raw sewage and not cleaning it up, but then, they tell them, “Turn in a tort claim, we’ll take care of you.”

And you go when you fill out the form just like they want, and then they never hear anything again because the statute says, it’s deemed denied if you don’t hear from them. So, then they wait and they wait and they wait, and then they eventually call a lawyer. Most lawyers won’t handle cases against the government, at least going on the offense against them. So, they get rejected and rejected until they can find us. We don’t take every case, but we try to help the ones that we can. And so, that’s what is just so profound, Scott, and I don’t know if I’m answering your question the right way. But that’s how my connection was, that they just … my eye, it’s on a prize that’s not the same.

Scott Glovsky:

This sense of rejection and needing to be heard, where does that come from in Jim Buxton’s life?

Jim Buxton:

Lots of places. I oftentimes feel that I’m not heard, and it came from being the youngest in my family, I think. From just the world we live in where nobody takes the time to look somebody in the eye and just listen to them and connect. I yearned for that. I don’t know about you, but I yearned for a legitimate connection. I don’t know if it’s so much as being heard, like I have a lot of problems with listening. Don’t listen because there’s so much going on in the world, so much chatter and chaos. I think it’s just so refreshing when you have just a connection. I think that’s what I mean by being heard. Like I can hear you right now and you haven’t said a word.

Scott Glovsky:

So, behind that there seems to be a loneliness.

Jim Buxton:

Being a trial lawyer is lonely. You’re a trial lawyer. Are you lonely?

Scott Glovsky:

Absolutely.

Jim Buxton:

Yeah. I feel alone oftentimes when I’m surrounded by other lawyers. Oftentimes, I don’t feel hurt, and if I look really deep inside, is that my need? Is that my ego? Probably.

Scott Glovsky:

Do you think lawyers ever feel alone in the courtroom?

Jim Buxton:

Yeah. Do you?

Scott Glovsky:

I guess the better question is, do lawyers ever not feel alone in the courtroom?

Jim Buxton:

Right. I was trying to think. I was saying this the other day to somebody, I said, “This is how I know that I’m supposed to be a trial lawyer. Like every time I do it, I’m nervous. I’m scared. All these feelings and all this stuff comes up.” But if you keep doing it over and over again, those things don’t stop. I would think surely by now this would be over with, but it’s not. But when you say alone in the courtroom, what I think about is being in the zone, you know what I’m saying?

When you’re totally in the zone, you’re alone, and you hear about it like, and maybe it’s because there’s no cell phones in court. There’s nobody able to get ahold of you, right? Unless you reach out to them. There’s a calm quiet to that chaos for me. I feel alone, but I also feel, if I’m really dialed in, that that aloneness makes me or allows me the gift to make a connection with each person, right? And that’s something I try and do every time.

Scott Glovsky:

Well, if we think about jurors who live in the same world that we do, on the same Facebook and social media, and bombardment of information, who must also feel alone.

Jim Buxton:

Yeah, it’s a great point.

Scott Glovsky:

So, how does that relate to connection with the jurors?

Jim Buxton:

Well, for me, if I’m truly alone or feeling that way, or scared, or confused, which I am every time. It took me a long time to call myself a trial lawyer. I didn’t think I tried enough cases. Like I told you, I figured I’d be through the nervousness, the awkwardness, the screw-ups by now, and I’m not. But that’s what connects me with jurors. If I reverse roles with the juror, I’m like, “This is insane. I’m being pushed around like cattle. I’m having to make friends immediately, all these people.” It’s just a whole awkward process. Where else other than your home perhaps does a man walk in in a robe and tell you what to do?

It’s a weird situation. We don’t have somebody here in the corner typing down everything that we’re saying. We don’t have some lady with a, what looks like a box of Kleenex, pulling random names out of it. It’s a unique environment in and of itself, that while being alone is scary, you should welcome that aloneness. Now that I’m thinking about it, you should welcome that aloneness, because it gives you a chance to connect.

Scott Glovsky:

And if we assume that the jurors are just like us longing for real connection, and to be heard, and to be listened to, it sounds like there may be some opportunity there.

Jim Buxton:

Well, think about this, and I don’t know if you do this in your trials, but if you’re really listening to a juror, you will automatically connect what they need with what you already have in your case, right?

Scott Glovsky:

Right.

Jim Buxton:

So, the cases I look back on where I’ve had some really good results, where I’m like taking pictures not only with my clients but with the jurors, because we are a group, and we are so proud of the justice that we’ve done, it’s amazing. And it’s because you just sit there and are in the moment with them. You have to feel connected to somebody, right? If they’re listening to you and they’re giving you what you need, how can you not … It’s kind of hard to be disagreeable with somebody like that, wouldn’t you think?

Scott Glovsky:

Absolutely. Why don’t we talk about the concept of struggle in the courtroom? Because we’ve all been there where-

Jim Buxton:

Finally, a topic that I can talk about with some competence.

Scott Glovsky:

And myself as well had some experience where you’re in that moment and the judge says something and you freeze. You don’t know what to do next.

Jim Buxton:

Yeah. When the panic, sheer panic, sets in. Maybe he could see me getting triggered after this from … I can still see it. I’m standing there in my closing argument with these papers rolled up in my hands like I’m about to beat a dog with them. I’m so just out of my mind. Scott, I’d like to tell you this was 10 years ago, but it wasn’t. It was two years ago, and I don’t even know what it was particularly that I said that caused the huge objection, and the judge not only sustained the objection but to stand up and go, “Mr. Buxton,” and this is in my second closing, I’m a minute or two from being out of there. And I froze and went, “Okay, this is familiar territory for you.”

Dialed-in, like the training we received here at the Trial Lawyers College. When all hell’s breaking loose and you panic, you dial in, you get calm, and I just turned. I’m not in the military. I did a military type turn, looked to the judge, looked him dead in the eyes, bowed to him and apologized, and gave him the power and the respect that he needed and said, “I’m sorry. I’m sorry, I’ll straighten up.” And he said, “Okay.” I just turned around and we got back to it, and I left and I was humiliated. Well actually, it was in the case that I was just telling you about TJ and Stephanie Chartney.

I was humiliated because I thought I blew it right there at the end, and I could’ve, but I think the way that I handled it saved me.

Scott Glovsky:

Well, let’s talk about that for a minute, because lots of lawyers think when you’re in that moment of struggle and you don’t know what to do, and everybody in the courtroom can see that you’re scared, how does that impact the jury?

Jim Buxton:

Well, they lose confidence in you. If you try and hide the struggle, then you’re hiding something from them. I don’t know about you, but I don’t have very good connections, or I don’t get very good results with people that think I’m bullshitting them.

Scott Glovsky:

Yeah. Well, let’s back up. Let’s assume you don’t hide it. In other words, you’re stuck and you’re in a struggle. You don’t know what the heck to do, and you’re standing there and-

Jim Buxton:

And you show them the struggle and they’re like, “Is this guy even a lawyer, or licensed to practice?”

Scott Glovsky:

Or, the opposite, that by having that struggle, you are connecting with the jury because you’re real. And as long as you’re not trying to BS them, but you’re being open, and honest, and transparent-

Jim Buxton:

Yes. It’s something I think that does connect you with the jury, right? But at the same time, and I think that’s what the training does with the Trial Lawyers College, I know this isn’t about the Trial Lawyers College. But I think that you must have to have a huge ego if you think that you are not going to struggle in a jury trial. So, I think it also starts with being self-aware. What happens to Jim Buxton when he struggles? A lot of times, if my struggle gets out of control, it turns into frustration, and anger, and frustration and anger are not emotions that jurors respond to when they’re not ready for them.

However, if you stay calm and that frustration or that struggle turns into something beautiful, then it has the opposite effect. It just creates so much respect for you as a person. It gives you leadership qualities because you’re not panicking in the moment, right? I think seeing the struggle is one thing, seeing how you respond to it is another, right? So, there’s all these little opportunities, and I think for a trial lawyer, most of it, that jury’s made their decisions, on aren’t the words that are being said or the facts that are being spoken.

It’s as simple as, you’re walking into a high school that you’ve never been to and you see all these people. If I’m reversing roles with the juror, which lunch table am I going to sit at? There’s only two choices in there. Which table do you want your juror to sit at? Well, sure, you would think maybe a juror want to sit with the smart guy that knows everything, or I don’t know, the cool guy. Or, is it somebody that has mutual respect from everybody, from the judge, to the janitor, treats everybody equally, the same, learns about them in voir dire. What do you need? What is it?

Well, when’s the last time you were in a trial juror didn’t say to you, “I don’t want to be here and we better be here for a good reason, and I’m ready to get out of here.” Well, if you’re struggling out there and it takes you three to four hours per witness, that struggle is not endearing you to the jury.

Scott Glovsky:

Yeah, let’s talk for a moment about control, because when I’m preparing for trial and starting trial, I tend to put a tremendous amount of pressure on myself, worried about all the things that could go wrong, and the reality is, in a trial, we’re very little in control.

Jim Buxton:

Yeah. You have control of nothing. You have control of what evidence you want to try to get in, as a plaintiff’s lawyer. That’s why I love people who go, “Who do you want on your jury?” I’m like, well, like Rafe Forman says, “I want somebody who’s going to vote for me, right off the bat, preferably without even having to ask me a question.” But I’m not going to get that, right? So, for me, what I do is I’m a big believer in energy and power of intention, and you can create problems if you’re thinking about problems. You can create solutions, just like you’re thinking about solutions, or feeling solutions.

Every trial lawyer will tell you, you got to be able to think on your feet. You got to be able to deal in the calm, and the chaos, and the question, I guess, I lost it.

Scott Glovsky:

Yeah, no, absolutely. One thing that I found helpful is acknowledging that there’s so much that is out of my control in the courtroom, that in a way it enables me to be more comfortable without putting all the pressure on myself.

Jim Buxton:

Right. When I think about control, is that what we’re saying in the courtroom? What are you trying to control? Do you ask yourself, what is it? What am I trying to do? You can control a lot of what goes on in a courtroom, right? You can get rid of a lot of objections by being intentional, purposeful, you’re that way. You’re very intentional, very purposeful. I bet that serves you well in court. You’re going to eliminate a lot of problems. But then, once that jury is sworn in, it’s group time.

Even before that, right? Because they’re always looking, even everybody in my jurisdiction, they call a hundred people in and then they call 18 out of the box, or 20-something out of the box. Then, if one gets kicked off, then they bring one from the audience back in. Everybody’s always watching, judging all the time. Well for me, I’m like, “Well, let’s just build a group.” Then, all I have to do is get them to follow me at the end. So, the pressure we put on ourselves as trial lawyers is ridiculous, and it’s a lead vest. It’s like wearing a lead vest when you’re going swimming, the pressure, the expectations, all of that, it’s crippling, for me at least.

I try to be open and understand that, “Hey, we’re just trying to get through this, all of us.” I wouldn’t be here if I didn’t think you were going to come sit with me at my table. Let me show you what all we got going on over here. Look, every time, if you’re listening, you’ve met every person there is out there, you’ve met them, you know them, because we’re all the same. We’re all the same. So, you know what they need. If you get out of your head, you can give it to them.

Scott Glovsky:

When our role is that of service, is that of caring for the client, and caring for the jury, and it’s not about us, it’s about who it truly is about. It’s where, at least for me, my creativity and spontaneity can flourish. But with the anxiety, I think your analogy that it’s a lead vest, is just perfect.

Jim Buxton:

It is. You got to get out of your head. I use this example. Are you married?

Scott Glovsky:

I am.

Jim Buxton:

Do you remember when you met your wife?

Scott Glovsky:

I do.

Jim Buxton:

Where is the checklist that you had from that night?

Scott Glovsky:

I did not have a checklist.

Jim Buxton:

You didn’t have a, I got to ask her name. I got to know X, Y, and Z in interview. Or did you just go, “Oh.” You were awestruck, I imagine.

Scott Glovsky:

I kind of had some animal instincts going on at the moment.

Jim Buxton:

Right, you had tons of feelings, I imagine, that if you were triggered one way, it could have led to a different direction if you were pre-thinking things. But I imagine if it was like … with my wife, I was just in the moment, any great relationship that I’ve developed, I didn’t need a script to do it. It’s because I’m in it with you, and it’s like moments during this conversation. Sure, it’d be great to have a list of topics and all of that, but to have a great conversation and to really connect with somebody, all the elements will get met.

You’ll meet their needs, and the needs are unique in every interaction, in every relationship, in every circumstance, right? So, when you say roles, that’s huge, right? What’s your role? If a trial lawyer can figure out that question, you’re going to be a hell of a good trial lawyer. Because you got to look at yourself, what’s my role? Well, standing in front of a jury, my role is to be the leader in this courtroom. When I go home, my role is to be a father and a husband. When I go to the office, my role is to be a businessman, a counselor, all these different hats that we wear.

If you can know your role, what’s your role in this group, then you could be aware of yourself. Then, you can have awareness for the other, and if you look back on great relationships and great connections you make with people, you’ll look back and you’ll see that, roles and understanding your role.

Scott Glovsky:

It just occurred to me that one of the beauties of this podcast is the phenomenal trial lawyers that I talk with, like yourself, all talk about what’s meaningful in life, and very little of it has to do with lawyering. It’s all who they are and, of course, it’s translated into lawyering because they’re real people in the courtroom. But they’re showing the feelings, the caring, the loving, the vulnerability, and translating that just from their personhood to the personhoods of the jurors and their clients.

Jim Buxton:

Right. Like just when I’m talking to you about like, do you remember the first time you met your wife, your face lit up. It’s doing it again right now, because it takes you to a place that you’re just … your energy changes because of that emotion. My trainer told me, and I never thought of it, emotions are nothing more than energy in motion, right? Self-awareness, roles, energy. I think that is what satisfies you in life. If you can match somebody’s energy, that’s a connection. I don’t know. I used to think that life was about certain things, about acquiring status, money, things, all this stuff.

That’s why I wanted to be a lawyer, but for me, being a trial lawyer is about being in the places where you can share experiences with people and connections, true connections. Then, you’re like, “Well, let me tell you about this time, this experience.” For me to get to talk about an experience with my wife, or my kids, or with my dad, it’s just changing my voice right now. It gives me a certain gift when I get to be able to tap into those emotions, and people all have them. They’ll see me, they’ll go, “Oh, well, huh.” They’ll tap into an emotion just because I am, and we’re a culmination of, right now, I am right now, a culmination of the experiences that I’ve had with others, including you, and it makes me who I am right now.

Now, I’m sure I could be somebody different tomorrow, down the road, and I hope I am, I hope I get better and better. But those are from personal connections. I can’t get those with the TV, or airplane, or whatever bullshit it is. At the end of the day, when it’s all over, I want to think that my life had great experiences, and so far, all these experiences have involved people, real human beings I’ve made connections with. That’s what makes the experience so great, and that’s why I love being a trial lawyer. I make that connection with my client. It makes it rewarding. It makes it satisfying on an energy soul level.

Scott Glovsky:

Wow. You’ve shared a lot of wisdom with us. This has been truly a pleasure in getting to sit across this table and look into your eyes, and feel your wisdom and your caring. It’s been a real treat. So, Jim-

Jim Buxton:

Well, thanks for having me. I really appreciate it, and I admire you a lot, and I’ll tell you why, you’re committed. You’re committed a hundred percent every time. It makes me commit. I match your energy.

Scott Glovsky:

Thank you for those kind words, it’s a function of us. It’s a function of the group, and our connection. That’s the lesson that you shared with us, one of the great lessons you’ve shared with us today, and I’m really proud that our listeners have learned about connection from you in this beautiful way.

Jim Buxton:

I hope so, too. So, thanks for having me.

Scott Glovsky:

Thank you, pal.

Jim Buxton:

All right.

Scott Glovsky:

Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate if you could give us a good review on iTunes, and I’d love to get your feedback. You can reach me at www.scottglovsky.com, that’s S-C-O-T-T-G-L-O-V-S-K-Y.com, and I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials, A Primer For Lawyers, that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials. Have a great week, and we’ll talk to you in the next episode.

The post Trial Lawyer Talk, Episode 56, with Jim Buxton appeared first on Law Offices of Scott Glovsky.

Oct 07 2019

34mins

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Rank #4: Trial Lawyer Talk, Episode 59, with Joey Low Part 2

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Joey Low is an expert at framing the story and getting to the heart of the universal truths of a case. He discusses a civil case for a 76-year-old woman who was in a car accident and suffered broken bones and mild traumatic brain injury. The case was a “red light, green light” and “he said, she said” case meaning there was no proof of what color the stop light was or who was at fault. Unknown to Joey until the trial, before Joey was retained the client had responded to discovery suggesting that the accident was the client’s fault.

Joseph H. Low, http://www.attorney4people.com, has a national reputation for his expertise in trial law. He has conducted trials all over the country in Federal, State and Military Courts. He focuses his attention in representing people who have been bullied by corporations and the government. Areas of his trial work have seen him with victories for his clients including personal injury, medical malpractice, business litigation, civil rights violations and criminal defense.

Joey framed the value of this case by showing the jury who his client was and how she showed up for others. The value wasn’t about her age or how much time she had left on earth, but instead about the life she had led up until the accident. As Joey said, “it was important for the jury to see everything that was there, not just what wasn’t there any longer.”

A legal immigrant to the US, Joey’s client learned English, got educated, became a nurse and earned American citizenship. She had a “special connection serving others who couldn’t serve themselves.” After the accident, she had anxiety, fear, and isolated herself from her family and community. The accident not only changed her, it also changed other’s experience with her.

After showing the jury who his client was before the accident, Joey addressed the absence of proof of the accident by telling an intriguing story and asking the jury to determine, “who’s earned the right to be believed?”

Transcript of Episode 59, with Joey Low, Part 2

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky and today we have a great case on Trial Lawyer Talk. Joey Low is going to join us again. He previously told us a fantastic story about a criminal case that he worked on. And today he’s going to share with us the story of a civil case. Joey really is an expert at looking at a case and finding the story and looking at ways to frame the case and frame the story that will get to the heart of the universal truths of the case. This story is very insightful for all of us. So let’s get started.

Joey, can you share with us another story of a case that had a profound impact on you?

Joey Low:

Sure. I mentioned it a little bit on the way up the stairs. I had dinner last night with a very well educated and accomplished neurologist who specializes in traumatic brain injury. He was the expert/treater on a case I tried a couple months ago. What he said to me last night was as he shook his head and had a inquisitive smile on his face, he says, “I don’t understand.” He goes, “How did you get that much money for that old woman?” And I asked him, I’m like, “What do you mean?” He goes, “Well, I’ve been telling some of my colleagues what the result was and they do some forensic work, some med legal work. And they’re saying, ‘That’s not real. That’s not possible.'” I go, “What are you talking about?” He says, “Well, I tell them, I say the woman was 76 years old. She had all kinds of difficulties such as diabetes and early onset for Alzheimer’s and back issues, et cetera. She could be dead any day now. She’s not going to be alive that much longer.” Why would they give her $11 million? None of them can understand it.

Then he proceeded to say something complimentary and I cut him off again. I said, “Look, I don’t think you understand.” And he just looked at me and I said, “If we merely look at her like a cell phone whose battery is about to expire, it’s on the 1% mark, what you’ll feel is that, well, that person can’t do anything for me. They’re almost out of energy. For me, when I look at that cell phone, what I see is all of the people that they put that energy into so they could recharge those other people, they could make their lives better. They could show them love. And that is entitled to be respected and that dignity that goes with that kind of commitment towards others is what the real value of that phone is. Not what the battery life is. And that’s what they paid for, what she stood for and what she had been worth up to this point. And that’s why.”

“Then I want to ask that you tell your friends that or your colleagues, so that next time they actually are willing to take some person’s money in order to come in and tell the jury why this person’s health has value, that they’ll see everything that’s there, not just what’s not there any longer.” And with that he shook his head and I won’t bore you with a few other nice things that he said. But he changed, he saw the same set of facts, if you will, the same football game. But he now saw, he got up out of his seat and walked around and saw it from a different seat in the stadium. Instant replay has shown us all depending on where you’re sitting in the stadium, seeing the same set of facts can make all the difference as to what kind of truth you get out of that.

Scott Glovsky:

Tell us the story of that case.

Joey Low:

The story of the case was, the reason again it comes to me, is because the lawyer didn’t really want to try it. They were offering, I don’t know, about $450,000, $500,000. And the reason why, it’s a he said, she said case, which means that she’s got her version as plaintiff and the defendant has his version, there’s no other witnesses. And it’s a red light green light case, which means that depending on the car, the light determines who’s at fault. Problem is, there’s no proof of what the color the light was other than he said, she said. That’s it. And when you combine that with the fact that now you’re asking a jury for a lot of money as a result of what happened to her, instantly they’re going to assume, well you must be lying because you want a lot of money.

Those were some serious problems. But even more than that was again the age factor. Look, clearly if you can even prove that it’s not her fault, I mean, what are the real damages going to be? Sure, okay. Maybe she had a brain injury, mild traumatic brain injury, and sure, broke some bones in her hand, but she’s retired. She just sits at home anyway, who cares? And that’s what I decided to make the story about again, was it’s not about a car wreck case and it’s not about a broken hand or a mild traumatic brain injury. That’s an event that happened. The real story was about a woman who had come to this country because the one that she lived in wouldn’t give her or her family a chance to be able to eat three meals a day. Forget driving a car, having nice clothes, having functions. They struggled to see on a good day if they could actually have two meals. They didn’t really have to struggle cleaning the house because it had a dirt floor and let’s be honest, what are you really going to do with that?

But their village was alive with a lot of gossip and stories about this place, this land where the floors were made of shiny marble and that people were fat because they’d just eaten their sixth meal a day. They eat every two and a half hours thinking to lose weight by doing that. That they have nice clothes and they go to parties where people dance and play live instruments that can be amplified with electricity so that then you could feel them. I mean these were completely foreign concepts. She was able to come to this land legally, where she worked to get her citizenship. Where she didn’t speak the language, but she went to school at night to educate herself in English and then she went to school during the day to educate herself to be a nurse and she worked.

Then when she graduated she became a nurse and it was her decision early on that she just felt a special connection with serving others who couldn’t serve themselves. To be the kind of person where she would wash their feet, literally their feet at church, even though she had so much seniority and had done so much Bible teaching, if you will, at this point, that she’s the last person they’re having wash their feet. But it’s something she liked to do.

She cared for the sickest people that the hospitals had to offer and then there was a position that came open in the kitchen, which she really liked and she then would cook all the food for everybody in the hospital. Then also when she retired from that, wasn’t willing to stop working, decided to stay on as the janitor. Where again, she cleaned up all the garbage and cleaned up all the materials late at night after folks. And in service again with people, her sister, who she dearly loved, unfortunately lost her life to cancer and lost the struggle with breast cancer. Her sister had left behind a 13-year-old girl whose daddy wasn’t interested. So she took her in her house not thinking a thing of it.

What else would you do? She loves the girl and cared for her and took care of her, raised her up, gave her a great life. Go to all her cheerleading events, just showed up for her on everything. But was still a really good leader, mentor. Didn’t spoil her, never had to discipline her, but was very direct with what is a good way to look at something and maybe something requires some more thought. As the niece would testify, “My aunt was very good to me in a very direct way. I oftentimes wanted to do some of the things that young girls want to do and she’d never tell me no. She just helped me articulate the consequences that could come from bad decisions and then leave it to me to decide which. At that point, there’s really no decision but she had a different way. Very loving woman.”

We then talked about how now that she’d finally retired and saved all this money and had her house, what she was going to do, and her best friend told the jury about how she wanted to go back to where she was from and travel. She wanted to go to a few other countries where she learned through her studies, historical points that she thought were interesting and that she really connected with. She wanted to go to places where there’s certain kinds of live music that were born there. She was a historian, a hobbyist anthropologist, but she never got a chance to do that.

She’s old school and she pays all her bills by writing them out with the piece of paper that comes in the mail and the check, put it in the envelope, put a stamp and she doesn’t like leaving her mail out on the doorstep or the mailbox there. She was raised from her village that the only way to guarantee the mail is going to get sent is you got to take it to the post office because it’s safe there. So she literally gets in her car twice a day and drives to the post office.

But on this particular day it was the third trip. Now sometimes when you hear the saying, sometimes the third time is the lucky time. But this time it may prove to be something different. You see, her niece who she had bought a car for because her niece’s credit wasn’t good enough, she co-signed it. And on this particular day her niece tells her that she had missed the payment. It was still within the 10 day grace period. But she’d just go ahead and send it in at some point when she could. And she says, “No, I’ll tell you what I’m going to do. I don’t want this to ding your credit so I’m going to pay it for you and you just pay me when you can. So why don’t you give me the piece of paper,” which she did. And she wrote out a check herself for her niece, put it in the envelope, got in her car, drove to the post office, put it in the post office and was coming home and that’s when it all changed.

In that moment, as she’s waiting for that light to go from green to yellow to red, she was sitting in an intersection waiting to make a left hand turn. When she pulled out, it wasn’t safe to turn left because there were cars going the other way that were in the intersection. So you had to wait ‘til that time when the lights change, and you have a couple seconds to leave the intersection safely.

Unfortunately for her, when she did that, there was a guy who was supposed to be at work, had clocked in that he was at work, working at the hamburger stand. But he wanted to run a personal errand. Didn’t call and ask for permission. He was the manager, but he’s supposed to ask the regional manager if he can leave the store, which he’s not supposed to, and he didn’t. So he was on his way down to another place to pick up some court papers where he’d been served for not paying child support and was trying to hustle back. And when he came to that light that went from green to yellow to red, instead of putting on the brake and slowing down and coming to a stop, guess what he did? Right. And as he went to try and blow the light to see if he could make it, he didn’t. He T-boned her and caused her car to roll over and it crushed her hand and broke her hand and hit her head and gave her a mild traumatic brain injury.

And from that day forward, she has been a completely different personality because as you’ll learn and the jury learned, that when you get a mild traumatic brain injury, some people, it’ll change their personality depending on what part of the brain was injured. And it did in this case. It caused her to become very paranoid and afraid and a lot of anxiety. The way she would cope with that now is lock herself in the room and not come out. That changed her grandkids’ experience and their relationship, her niece’s experience, and her husband, everybody. She lost contact with her entire community, mostly her church, where that’s her community. Those are the people she loves and who love her. She’s like the walking wounded now. You wouldn’t know it to look at her and you’d just think she’s kind of odd when you talk to her. But there’s a lot of odd people. But there will be people here to tell you who’s missing in action and the impostor that’s wearing her clothes.

That’s the story that we told the jury and they got to hear about the things that she’d shown up for and done for others. When it came time to ask them to value what had been taken from her without her permission, which is important, that’s the value they came up with. Now, there was one fact that was a real problem that I would have liked to have known about before the trial started. And when you do these cases, which is basically try other people’s cases, one of the things you learn to ask for is the paper discovery or the paper evidence that comes from you asking questions. Because in those questions are usually questions about be specific about how that collision occurred. And you want to see what the lawyers representing your client had to say in the past because usually it’ll be relevant at trial. And if there’s a disconnect or a contradiction between the two, you need to know that to be well prepared.

I asked for that information and I got the answers that were given six months before trial. But what was not given to me or even told, is that the referring lawyer who I’d never met, he had answered the questions early on hoping for a quick settlement, didn’t get it. And what he’d said in there was that the light was the wrong color to have been if the defendant was going to be at fault. He said that the light was green for that defendant. So the case is over, there’s no liability. And I wasn’t aware of it. I had to learn about it in the trial.

Scott Glovsky:

Wow!

Joey Low:

Yeah, where they blew it up in a huge foam board. And when also asked, “please describe how it did happen,” and they write there are no facts to support how it happened. Clearly I have a much more elaborate story at that point. It looked kind of bad. Those answers are under oath and I didn’t even get a chance to ask her about it. I didn’t get a chance to deal with it in voir dire or opening statement or on her direct exam. Didn’t like the way that felt. But the way I dealt with it was something that I came up with and I used in the closing.

And it was this: I told the jury that this case is a he said, she said case, but who had earned the right to be believed? What I did is I compared her life and what she did in service for others to his life and what he did in service to himself. And there was more specifics I haven’t gone through. I said, “Who’s earned the right to be believed?”

And then I asked them this, I guess if you will, question or scenario. I said, “Imagine you’re standing on the top of a waterfall. The kind you see people jump off of if you’re in Hawaii or exotic places like Thailand or so forth. And you look down, you see that tranquil pool down there and it’s a long ways down. It’s going to be a good jump. But you’ve seen people do it on your walk up. You just didn’t see whether they hit the bottom and just saw some people walking up there. And when you get up there, you look over and you’re trying to figure out, do you jump? If you look down and you see the defendant and he’s in the tranquil pool and water’s about chest deep on him and he looks up at you and you look down at him, you say, ‘Hey, is it safe to jump?’ And he looks up at you and he says with a crooked smile on his face, ‘Oh yeah, you bet it’s safe.’ I want to see jump.”

“You look down there again and you see Mrs. McFoy,” that’s the plaintiff, Norma McFoy. You say, “Norma, do I jump?” And she says, ‘Honey, I wouldn’t if I were you. A few folks have tried it and they’re not here anymore and nobody’s done it here today. I’m down here in the water and I’m telling you because I’ve been there. It’s not deep enough.’ In that moment with everything you know about him, the defendant and everything you know about her, what do you do? Do you jump? Same answer to that question should be the same one you answer when you go back and you fill out that verdict form about who’s negligent and who’s earned the right to be believed.”

And that was the story I told them. When asked afterwards when the verdict came out for the $11.1 million, of course the defense lawyer was incredulous, couldn’t believe it, was angry. And that’s okay, I’m okay with that. He asked, and one of the jurors says, “As soon as Mr. Low told us the story,” they called it the story of the waterfall, “I knew right away.” Now, he didn’t speak for everybody. And I’m not going to tell you that the other 11 felt the same way, but the ones that were standing there when he said that, which was about another four or five jurors right there. There were 9 total who stayed after to talk, heard him say it and some of them shook their head. No one said, Oh yeah, we all agree with the story.

But I believe it was helpful in being able to categorize and properly give value to what is important in this case. And that is people are a lot more than their age or a lot more than what little time they may have left. And the way they have lived their lives is best demonstrated by showing the commitment they have demonstrated towards others. And because I spent a lot of time focusing on that, none of which was in any of the depos. That stuff’s not in there. But by consciously going out and looking for it and not quitting until I’ve talked to enough people where I have at least three good examples of that and people who can tell the story credibly.

That’s how you get uncommon numbers for very difficult cases in jurisdictions where after my closing, before the verdict, the court reporter came up and said, “Mr. Low,” she said she talked to the court clerk, “we think you did a nice job with the case, but they’re just not going to give you that kind of money.” I believe I asked the jury for $23, $24 million. “They’re just not going to give you that kind of money. I mean, this jurisdiction, that case, you’re going to get somewhere between, I don’t know, low end $750,000. Maybe if you’re lucky, $2 million. It’s not you, it’s just that’s these juries. Just they’re really stingy here.” I would’ve been fine with that. Norma McFoy would have been fine with that, but the jury wasn’t.

Scott Glovsky:

Were you surprised?

Joey Low:

No. No, I wasn’t surprised. I’m surprised what the court reporter said, not because it’s wasn’t true. It was true. I’m just surprised that she has probably seen more trial lawyers than any of us have. It’s a long-time court reporter and that’s been her experience as a result, that it just doesn’t happen. And isn’t that sad? That’s what surprises me because the information’s out there.

Scott Glovsky:

Is it true that you reverse roles with people every day?

Joey Low:

Yes. Oh, that’s true. I was lecturing at a lawyer conference in Florida the week before last. They had me do a couple of days for them. One of the questions was, well, we just saw you do a voir dire with no preparation. How do we do it like that? And I said, “Well, you didn’t see the preparation.” They go, “Where did you have time to do it?” And I said, “Well, I do it every single day.” And they go, “What do you mean?” I go, “Well, one of the things I’m trying to show you is if you’re going to ask a juror a question, you have to be willing to really be interested in the answer or don’t ask it.”

And being interested in the answer means that you’re quiet and you’re tuned in and you’re present while they’re giving you the answer. You’re not just being quiet while you’re waiting to respond or cut them off or think about the next thing you’re going to do while they’re talking. You’re actually just sitting there and you’re reversing roles with them. And you’re asking yourself, “Now that I’m them, how does this make me feel to say these words?”

I practice that every day, all day with everybody I meet. So when I go to the grocery store and the person asks me how I’m doing as they’re reaching for my groceries out of the basket and putting them across the scanner, I actually stop. I clear my mind and I ask myself, “Well, how am I feeling?” When it comes to me, I put a voice to it and I’ll give them an answer.

And then when I ask them the same question, I don’t do anything else. I don’t take the card out of my wallet. I don’t reach for another item. I don’t look at the magazines that they’re trying to get you to buy. I sit there and I tune in 100% with what it is they’re saying and how they’re feeling. And if it strikes me right, I reflective listen, which means I’ll say based on what I hear you saying, I think you’re probably feeling this. And it’s amazing what comes out of that. You get instant connections. You get people who feel listened to and feel cared about and as a result they’re happy to share with you and now they’re happy to have a relationship with you.

You have to do that every single day because for some strange reason, it’s not a natural act. It should be. But the society has changed a lot from 50 years ago when you all lived in small towns and gossip was the way the news got passed. And everybody knew what everybody was doing. Those days are gone. When was the last time you even met your next door neighbor? I mean, people actually live on your block. We don’t communicate all that well. We sure as hell don’t tell people how we’re feeling, because no one really cares to hear it. So yeah, I do it every day.

Scott Glovsky:

Joey, I want to thank you first on a personal level. I followed you around at the Trial Lawyers College to learn from you for years and I’ve learned a tremendous amount from you. I want to thank you for your help in personal psychodramas, teaching me things that at times I wasn’t ready to learn. And thank you for sharing with all of us these stories. I look forward to learning more and being around you and learning from you and helping my clients through the gifts that you’ve given and passing them on. Thank you brother.

Joey Low:

You’re very welcome and let’s get to it. We got a lot of work to do, so thank you. Thank you for having me.

Scott Glovsky:

Thank you.

Thank you for joining us today for Trial Lawyer Talk. If you liked the show, I’d really appreciate it if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s S-C-O-T-T-G-L-O-V-S-K-Y dot com and I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials: A Primer for Lawyers, that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.

The post Trial Lawyer Talk, Episode 59, with Joey Low Part 2 appeared first on Law Offices of Scott Glovsky.

Jan 14 2020

28mins

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Rank #5: Trial Lawyer Talk, Episode 55, with Stephen Demik

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In this episode of Trial Lawyer Talk, Scott speaks with trial attorney Stephen Demik. Mr. Demik tells Scott about a case that had a profound impact on him.

Transcript of Episode 55, with Stephen Demik

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast where we speak with some of the best trial lawyers in the United States. We simply have great lawyers tell great stories from cases that had a profound impact on them. So let’s get started.

I’m really happy and, frankly, excited to be sitting across the table from my good friend, phenomenal trial lawyer, Stephen Demik. Stephen practices in Los Angeles in Southern California and South Dakota and is truly someone who’s got more talent in his little finger than most lawyers have in their entire body. And someone who has sat across the room from me the night before my opening statement in more than one case, and counseled me, and guided me through my own anxieties and fears into getting down to a good, effective opening statement, and many other things. So Stephen, thanks so much for being with us.

Stephen Demik:

Well, I’m honored Scott and, I was telling you before, I love this show. I love listening to it. It’s a piece of the ranch that I can put on my computer and I can hear voices of people that I love, and admire, and respect. And I always walk away with something, like a little gem. And so, I want to thank you for doing this, and also back at you buddy. You’re one of the best trial attorneys I know. And it’s an honor to be sitting across from you and having this conversation. Thank you.

Scott Glovsky:

Thank you. So let’s get this love fest started. Stephen, share with us a story of a case that had a profound impact on you.

Stephen Demik:

Well, if somebody asked me that question, I would say it would be a case that I lost. And the reason is, is because most people expect you to tell the story about the fantastic acquittal you got, or the brilliant closing argument that you did. And I make it a point that some of the cases where I learn the most and was most proud of my work were convictions, were cases that I lost.

But I want to go back to a case in 2005 in San Diego. And my client was a Mexican gentleman and he was stopped at a border … not a border crossing, but a border stop in Arizona. And he was in a U-Haul van and it was just him. And there was a ton of marijuana in the U-Haul van, literally. They weighed it, a ton, and there was nothing else. There was no furniture, or no books, or nothing. It was just marijuana in this U-Haul van.

And admittedly, I tried this case before I had come to the ranch, but looking back at it, there were so many things that happened that I learned from, that are taught here, that are taught here by staff, that you learn here and the method. So, that’s the case that I would pick. And there’s a few reasons, but if …

Scott Glovsky:

Sure, tell us the story of the case.

Stephen Demik:

Well, so my client gave a quasi-confession when he was arrested in the U-Haul van, and they brought him out, and he was interviewed, but they didn’t record it. And I had this moment where the agent was on the stand and I was a young attorney at the time and I took him on and I said, “And you didn’t record his statement so that this jury could hear that statement and we could verify what you’re saying. You’re saying my client said, ‘Yeah, I knew there were drugs in the U-Haul van.'” And I think this agent was feeling maybe like antagonistic towards me. And he said, “Oh, well our video camera was broken at the border patrol station.” In mid-trial I subpoenaed the border patrol guy who’s in charge of the video cameras. And I called him up and I had him at my office at 6 AM the next day, I threw a subpoena on him. I brought him into court and he told that jury that that was a lie. That that agent had boldfaced lied to them.

And it was an acquittal. But I talked to the jury afterwards and I asked this juror, because I think I’d take it a little personal, which again, I was young, what he thought of that border patrol agent. And he said, “He was just doing his job.” And they acquitted my client so hey, I’m not complaining with the outcome. But it taught me something that if you’re going to call a person of authority a liar, even when you do it and even when you do it effectively, you can’t count on it landing the way it lands in your head. It comes across different to a juror. That’s one thing I learned and that’s one story of the case because it’s very rare that you catch a police officer or an agent actually tell a lie or commit perjury. And I felt like I did it and the jury really wasn’t bothered by it.

Scott Glovsky:

No, it’s interesting. I recently heard Rafe Foreman say there’s three stories in a case. There’s our story, the plaintiff’s story, there’s the defendant’s story, and there’s the jury’s story. And the only story that matters is the jury’s story.

Stephen Demik:

That’s absolutely true. And I thought of that too. And that’s something that I’ve said in closing arguments to juries. I said, “There’s the truth of what happened. There’s the prosecutor’s story, number two. And number three is there’s the truth that came out in the courtroom, the truth of the trial as you would call it.” And I used to say that in closing arguments to sort of demonstrate for the jury that none of us were there that night. I’m thinking of this case in particular, none of us were there when he was given the keys by these men who had hired him to move furniture in a U-Haul van from Mexico to Arizona, which is the story of the case, which is the defense, which is he didn’t know the marijuana was in the U-Haul van.

None of us were there because we sit in a courtroom as lawyers with suits, and the jurors are there, and the judge is there, but we’re trying to recreate what happened in reality that none of us were there. And that’s a fascinating point that I’ve always brought into closing argument. But I like what you said, which is there’s the jury’s story, which is the ultimate one, which is the jury’s story is either going to be a story about justice, a story about every day in this country prosecutors obtain convictions beyond a reasonable doubt, and things like that. But that’s the one that counts, right? It’s the jury’s story. That’s the one that, ultimately, we’re trying to bring about and give life to.

Scott Glovsky:

And can you reverse roles with your client in this case?

Stephen Demik:

Yeah, I can. And that’s another point is that I was prepping him to testify because I was convinced up until the middle of trial that I was going to have him testify. And there’s a lot of schools of thought on whether you put a criminal defendant on the stand or not. And I won’t get into that. But I was prepping him to testify and we were talking about it, and I was going through my questions. And the defense, ultimately if you shave the onion all the way down, is that he was stupid. He was stupid because he made a mistake in trusting these guys in giving him keys, and asking him to get paid $300 to drive it across the border into Arizona because it had furniture, and he never looked in the U-Haul van. Stupidity or a mistake, more kind of a mistake.

And I was talking to him and when I was prepping him to testify, his name was Miguel, he just did not want to look stupid. He did not want to look bad. And I said something to him that I have always carried with me when I’m prepping a criminal defendant to testify, and it’s a little crass, but I’m going to say it anyway. You have your ass and your face and you can only save one. And when I’ve seen criminal defendants go in there and testify and they don’t want to look bad, they want to appear polished and varnished, and they want to appear good in front of the jury, they hang themselves because they’re ultimately defeating their defense. And so my client going in and wanting to look sophisticated, smart, educated, worldly, which we all do, we all want to look that way. I can empathize with that.

But for him in that moment, he didn’t understand that. To me as a lawyer, he was really introducing cognitive dissonance to what I was trying to tell the jury was the real story. So yes, I could reverse roles with him and I can do it right now because I’m here on the ranch. And every time I stand up in front of a group of people, I don’t want to look bad. I want to look good. I want to look like I know what I’m doing. I want to look suave, savoir faire, all those things and I think we can all identify with that.

Scott Glovsky:

What I’d like you to do right now is reverse roles with your client.

Stephen Demik:

Oh, okay. All right.

Scott Glovsky:

What’s your name?

Stephen Demik:

My name is Miguel.

Scott Glovsky:

Miguel, close your eyes for a second.

Stephen Demik:

Yeah.

Scott Glovsky:

Sit the way you sit. Feel yourself in your body. And when you’re tuned in, open your eyes. Nice to meet you, Miguel.

Stephen Demik:

Hello.

Scott Glovsky:

How’d you get into this mess?

Stephen Demik:

Well, I’m a mover and that’s what I do for a living. And I had word from my friend that these men were going to pay $300 to just drive a van. And that’s what I do for a living. And it sounded like a normal job. It’s what I do normally. And I didn’t know what was in that van. And I got stopped at a checkpoint, I showed them my papers, and they tell me there’s marijuana in the van.

Scott Glovsky:

And if we step back and go a bit deeper, something that might be referred to as chairback, how are you feeling now?

Stephen Demik:

Scared. Absolutely scared. I’m in a foreign country. I’ve been here before, it’s not like I haven’t been to the United States, but now I’m in jail in the United States and I’m far away from home. And I’m scared. I’m terrified. I’m looking at five years in prison, it’s a mandatory minimum. So my lawyers told me.

Scott Glovsky:

And how do you feel about your lawyer and this system?

Stephen Demik:

He cares. He seems to be invested in my case, he seems to care about me. He talks to me a little brusque sometimes, but I know that it’s coming from a place that he really wants to win my case. He really wants me to go home. He’s told me that.

Scott Glovsky:

Do you trust the system?

Stephen Demik:

No, not at all. There’s all kinds of guys back in this jail, where I am right now, awaiting trial who’ve been given real raw deals. I don’t trust the system at all.

Scott Glovsky:

So, regardless of what your lawyer tells you, what do you feel like you have to show to get out of this?

Stephen Demik:

Well, they have to like me. I mean if they like me, and they think I’m a good guy they’ll let me go home.

Scott Glovsky:

And how can you look like a good guy?

Stephen Demik:

Well, I can show them that I’m a good person, I don’t commit crimes, I don’t use drugs. And they’ll see that. And I’m a good family man. And when they see that the judge will send me back to Mexico, back to my family.

Scott Glovsky:

What are you most afraid of?

Stephen Demik:

Being stuck in prison for five years. Right now, yes, it terrifies me. And for people to think that I’m a drug dealer.

Scott Glovsky:

I mean, after all you did this for 300 bucks.

Stephen Demik:

That’s right.

Scott Glovsky:

It’s not a lot of money. I mean, well, I shouldn’t say that. What does 300 bucks represent to you?

Stephen Demik:

It’s about a half-week. On a good week, that’s about a half-week salary, I would say. It’s pretty good money. It’s not going to make my month. But if maybe these guys think I’m good at my job, maybe they’re going to send me other jobs, and maybe they’re going to give me more clients.

Scott Glovsky:

Do you have people that rely on you?

Stephen Demik:

My family.

Scott Glovsky:

You send them money?

Stephen Demik:

I do, absolutely. I bring money back and if I’m in the United States on a job I’ll send it back.

Scott Glovsky:

Is there anything else we need to know about you?

Stephen Demik:

I don’t really understand this system, I don’t. I don’t understand it, but I trust my lawyer.

Scott Glovsky:

And if you could say anything to your lawyer, he couldn’t hear you, but your inner-most thoughts, what would they be?

Stephen Demik:

Get me out of this. Get me out of here. But thank you. I would say thank you and I do say thank you to him. Thank you for coming to visit me on Saturday. Thank you for being at the jail at nine o’clock at night and working on my testimony and helping me. And I say to him, thank you. So if I have anything to say to him, I would say thank you.

Scott Glovsky:

Well now we’re in 2019, you’ve been acquitted of this crime. How do you feel about Stephen Demik?

Stephen Demik:

He’s a good man and I appreciate what he did. He helped me show the jury that I’m a good person and he helped me go home.

Scott Glovsky:

Okay, well let’s reverse back into Stephen. And what are some lessons you’ve learned that you can pass on to young lawyers?

Stephen Demik:

Well, I’m going to stick with this case since we’ve been talking about it. The jury acquitted my client, Miguel, in less than an hour. But there was a note, there was a question from the jury when they went out. And I got up, Scott, and I think I did the best closing argument I’ve ever done. I hit every point, I was sincere, I gave the righteous indignation. And I left no stone unturned in that closing argument. I took every point that the prosecutor had and I diffused it before their rebuttal. And I sat down and my co-counsel said that was it, A-plus. And the jury came back with a note after about five minutes of deliberation. And the note was, “We want to know what this word means in English.”

And I don’t want to be judgmental, but it had nothing to do … I mean, besides the fact that he had been hired, in his mind, to move furniture. But here’s what I learned, and it’s very simple, the jury needed to feel that it was their verdict. And you just said it better than I ever could, it was their story. And as a young lawyer, that closing argument, it was my story and I was going to tell them that they had to acquit. And I was going to walk my client out of that courtroom, arm in arm, and get the gold trophy, and the confetti because it was my verdict. And because I worked so hard for it, and that’s my ego.

What I learned was that the jury has to own that verdict. It has to be their story and it has to be their verdict. And so that question that they asked was simply, if I were to chair back the jury as a group, “We want to feel that we’re working and so we’re going to work by asking this question. And when you tell us, judge says, I can’t answer that question. What’s in evidence is in evidence.” After that, 10 minutes later it was a not guilty. And that’s a valuable lesson for me, I think for any trial lawyer is the bigger your ego sometimes that gets in the way. It gets in the way of delivering justice to your client. That was a very important lesson that I learned in that case.

Scott Glovsky:

And how do you operationalize that in your practice and trying cases?

Stephen Demik:

Well, I try and come back to the ranch and I try and work the method, and I try and … Jerry said it better than I ever could, and really perfected the method in saying, “You have to transfer the responsibility to the jury,” and that’s his bird story that, for those of you who aren’t familiar with it you can look it up on Google, it’s a great … Yes?

Scott Glovsky:

Why don’t you tell it to us?

Stephen Demik:

Sure. Again, I feel like this is a sacrilege in some way because he does it better than I ever could. But the story is, very simply, there’s a village and there’s a village elder who is purported to know everything. He’s the wise man, if you will, of the village. And there’s a young boy who says, “I’m going to do what nobody’s ever done in our village’s history, and I’m going to trick the wise man. And I’m going to do it by putting a bird in my hand and covering it up.” If you imagine a palm down, and a palm over it. “And I’m going to go to the old man and I’m going to ask him, ‘Old man, you’re so wise. I have a bird in my hand. Is it alive or is it dead?'” And the old man turns to the young boy and he says, “The bird is in your hands, son.”

And the purpose of that metaphor, the purpose of that story, and then you say to the jury, “I put my client in your hands. I put that bird in your hands,” because you’re giving your clients, you’re giving your client, figuratively, but literally you’re giving your client’s fate to the jury and you’re telling them that it is their decision and it is their responsibility, at that point, to deliver justice. You have transferred responsibility to them.

The little boy, if the old man said the bird was alive, he was going to crush it in his hands, and pop it out. And say, “You were wrong. It was dead.” And if the old man said the bird was dead, he was going to release his palms and the bird was going to fly. And he was going to say, “You were wrong, old man, the bird was alive.” But that’s it, really, is that he was going to trick the old man because he had the power to determine whether the bird lived or died. The jury has the power to determine your client’s fate.

For me, for Miguel in that case the jury had the decision and the responsibility whether he went to prison for five years, which they would never know because a judge wouldn’t allow them to know that, or to set him free, and let them fly back to his home. And that’s why it’s a powerful, powerful skill that we learn here is that transferring that responsibility to the jury so that it’s their verdict, and so our egos of wanting to look good, of wanting to appear good savoir faire, being debonair, being so articulate, and Cicero in the courtroom does not get in the way of the ultimate thing that we’re there to do, which is deliver justice for our client, for the little guy, or for the little gal, or for the little person that we represent.

Scott Glovsky:

And how do you deal with your own ego? Because we all have them and they get in all of our ways. How have you dealt with it?

Stephen Demik:

Well, it’s easy. I’m very self-critical and I don’t know if people realize that I have a very powerful inner-critic. And I always feel like I’m not doing things correctly, or I’m not doing things right. And I don’t take compliments very well, which is even … when you were introducing me, I kind of like a little boy was staring at the ground because, to this day, I just don’t take compliments well. And that’s my story. That’s my story of growing up in a family with an older brother who was very smart, very well accomplished, and feeling a bit second rate as a young boy. And I think I’ve internalized an inner critic.

How do I prevent, or put my ego at bay in the courtroom? I try and remember that I’m a player in the courtroom and, although, I want to be the “power player” because I want to have credibility, and I want the jury to understand that they can look to me for answers and I will be honest with them, and I will not lie to them even when it hurts my case. Ultimately, at the end of the day, and I tell clients this in every criminal trial I have, there are only 12 people in that courtroom that can set you free. And, at the end of the day, it doesn’t matter what I think, or how good a lawyer I am, or what the judge does, or what the prosecutor does it’s those 12 people. And I guess I keep that mantra in my mind, is I never usurp the jury. I never try and invade their province. That’s their province, they’re going to make the decision. It’s their story. I’m just trying to help them.

Scott Glovsky:

Wow. Lastly, what advice do you have for trial lawyers out there that are trying to get better?

Stephen Demik:

Be as real as you can, and live life down to the marrow, suck it down to the marrow because whether it’s Guantanamo Bay, where I’ve defended detainees who were locked up for a decade in a prison with no criminal charges, who are from a foreign country, who don’t speak my language, and I don’t speak their language, who are a different culture, a different religion, different skin color. Or a young Native American boy. And right now, I remember, I can see a particular boy who committed suicide after his acquittal at trial, who lived on the Pine Ridge Indian Reservation, who was a 23 year old boy … didn’t make it through high school, lived in dire poverty, and just had experiences that I’ve been fortunate enough not to have. Or Miguel from Mexico, who’s in a foreign country, who … at that time I didn’t have a family. Now, I do have two beautiful children. But who has a family and I didn’t have a family.

But I guess what I’m saying is that if you go out there and experience life from as many different vantage points as you can, and you never look down on somebody, and you never look down on somebody’s life for what they have or what they don’t have, and you try and walk in their shoes, and experience life the way they experience life you are going to be a master communicator. And you’re going to be a master communicator because there’s going to be a piece of you that can always connect with another human being.

I’m going to just give an example because I feel like I’m being very abstract. With my detainee client, one in particular at Guantanamo Bay, we would have the most intense conversations about what it was like to be a father because I was a brand-new father, had my beautiful daughter. And I think I went down there and she was only probably a year or two old. And I went down there and we sat for two hours, and we didn’t say anything about the law, and we didn’t say anything about the case, or the Supreme Court precedent, or any of that. We just talked about what it was like to be a father.

And he gave me the best advice I think I’ve ever received. He said, “Always come home with a smile even though you don’t feel it because there’s going to be moments,” and this was so touching to me. “There’s going to be moments when you can’t see your kids. And so you’re going to wish that when you walked in the door that day, and you had the worst day ever.” And we would joke about it because he’s sitting in prison in Guantanamo, and I’m like, “I don’t know if it gets much worse than this, dude.” But, “Even if you had the worst day ever, walk in with a smile, even if that smile lasts for 10 seconds, because that day that you can’t be with your kid, you’re going to want them to remember that that was their father’s face walking in the door that day after work.” And man, that was it.

After that, not only was I bonded with my client, but I could tell his story because, to me, he and I were bonded. And in that limited temporal time are bonded for the rest of our lives.

Scott Glovsky:

Wow. That’s a whole lot of love, my friend.

Stephen Demik:

Well, I’m on the ranch and there’s a lot of it here, so it’s a safe place to express things like that, and get in touch with things like that.

Scott Glovsky:

Well, thank you very much for taking the time to speak with us. And I’m super excited to just watch your amazing career in South Dakota and California. And I’m very, very proud and fortunate to call you my friend.

Stephen Demik:

Thank you, friend.

Scott Glovsky:

Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate, if you could give us a good review on iTunes. And I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s, S-C-O-T-T G-L-O-V-S-K-Y.com and I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials, A Primer for Lawyers, that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people. And it provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.

The post Trial Lawyer Talk, Episode 55, with Stephen Demik appeared first on Law Offices of Scott Glovsky.

Aug 06 2019

28mins

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