Secure the First Impression or Fall Behind | Jim Neale (Civil Trial Lawyer & Mediator)

It's harder to overcome making a bad first impression to a jury than it is to argue against an inaccurate police report.

Why are first impressions and opening statements so important? 

Because once people make up their mind, you're no longer just asking them to look a different way.  You're now asking them to look at their former self and say, "Hey, you actually got it wrong."

Jim Neale faced a challenging case where a police report on a fatal car collision included four witness testimonies, all of whom said they witnessed the same thing. The police report thus reflected this, and Jim and his client found themselves defendants unwillingly in a wrongful death case.

How do you overcome such seemingly decisive testimony?

It starts from the moment you present your case and set the tone. Embrace the slow build, as Jim says, "Give  the jury the facts and let them play detective." 

Jim shares his team's fascinating approach to trying this case, and how they approached that uphill battle of getting people to change their minds. Perhaps not the witnesses, but certainly the jurors.

"As a good trial lawyer, if you can kind of spoon feed your case in little bite-sized pieces to the jury, have them take one fact at a time, and build their own conclusion from it, you're going to be a lot better off. Because then it's their conclusion. " - Jim Neale

In this episode, we discuss:

◼️ The psychology of speaking with witnesses who are certain they saw what they saw.
◼️ How a memory can be constructed, and was not the one that was actually seen.
◼️ How to give jurors the license to become just a little more sceptical.
◼️ The importance of patience and subtlety in cross-examination.
◼️ Figuring out where the witness wants to go on their own, if we let them.
◼️ The value of lawyers with litigation experience serving as mediators, especially for defense or plaintiff sides.

Chapters

0:00 “We kept digging”
4:14 Jim’s background: Army Ranger to lawyer
10:50 Why accident reconstruction matters
13:41 The police report and first doubts
15:09 Reconstructing the crash
17:26 Interviewing witnesses carefully
20:55 How witness memory gets shaped
23:14 Juries, first impressions, and opening statements
26:29 Competing police reports and trial strategy
31:43 Science, visuals, and detective work
37:02 Trial losses, wins, and perspective
41:41 What clients really want from a case
45:57 Advice Jim would give his younger self

Courtroom Stories & Tactics | RVA Trial Lawyers
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Based out of Richmond, Virginia, Courtroom Stories & Tactics by RVA Trial Lawyers exists for lawyers who try cases to juries on behalf of people. Through our podcast, we hope to learn from them, support them, connect them, inspire them, and preserve their work for future trial lawyers.

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Thank you!

Sharif Gray and Nael Abouzaki

Transcript

SPEAKER_03 0:34

There was enough there to keep digging. And so we kept digging and we pressed and pressed. And now we were convinced that the four witnesses, even though they were unanimous, were wrong. They weren't lying. They were just mistaken. And we had to show that somehow.

SPEAKER_01 1:22

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SPEAKER_02 1:32

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SPEAKER_01 1:50

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SPEAKER_02 1:55

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SPEAKER_01 2:02

All right, we're back. And today we've got a special guest, Jim Neal. So Jim and I go back quite a ways, actually. So I went to UVA, graduated in 2014, which is only a couple years ago, right? And um actually what's insane, Jim, is like now I'm coming up on 12 years as a lawyer. So at some point I should actually start learning and figuring out like what to do.

SPEAKER_03 2:24

But I feel don't figure it out, Sharif. An old lawyer told me once there's nothing scarier than a young lawyer with a law book under his arm.

SPEAKER_01 2:33

Yeah. No, no, I get it. And I mean that's why they call it the practice of law too.

SPEAKER_03 2:36

It's a practice.

SPEAKER_01 2:37

And frankly, I think, in all seriousness, once we think we figured it out, it's probably means it's time to hang it up because the practice of trial work, right, is always evolving.

SPEAKER_03 2:45

If you're telling yourself that, you're deluding yourself.

SPEAKER_01 2:48

But well, thank you, Jim. So I took a trial ad course at UVA, the National Trial Advocacy College, if I remember that correctly, run by Steven Salzberg, I believe, out of professor at GW, would put this thing on. It was hosted at UVA, but the primary participants were lawyers at other law firms. And because it was hosted at UVA, there was a deal where I think it was like for $250, which is a massive discount off what the sticker price is for the thing. The students got to go and do this course for the week or so. And pick up a credit, too, I think, right? I think so. I think so. Maybe your best grade in law school. Uh maybe. I don't know. I mean, uh, yeah, because it was past fail, right? But uh but it's amazing to me, like one, how that course has kind of impacted me. I remember getting the free book, which was the book by Herbert Stern and Steven Salzberg, Trying Cases to Win in One Volume. That by far, in terms of like classic trial add books, in my mind, there's nothing better. And so I remember getting that book there. But then related to this conversation, you were one of the two professors, I believe, who were tasked with or were assigned to our section. And I still remember you demonstrating a cross-examination and just how natural it was and how you did it. And I was like, one day I hope I can do something like that.

SPEAKER_03 4:10

Wish I had the same effect on jurors Sharif.

SPEAKER_01 4:13

You have, Jim, and we'll get to that. And anyways, I remember we had lunch at one point on the mall in Charlottesville when I had my my big law, should I call it a vacation or I don't even know, or blip, whatever it was. I'm glad I had a frolic and detour. A frolic and detour. We spoke very briefly. And then we, of course, you we we saw each other at the VTLA convention not long ago. But Jim, great trial lawyer, gives his time to help others learn. And now you've gotten into mediation. So before we talk about some of the stories that we want to share today and lessons learned, why don't you take a minute or so and introduce yourself?

SPEAKER_03 4:48

Well, thanks, Sharif. I appreciate you having me here. I've enjoyed listening to the show a few times and I'm really glad to be on it. I have practiced law since 1998. I went to UVA. Before that, I spent a few years in the Army, which is something else I think we had in common. That's right.

SPEAKER_01 5:04

But you did like real stuff in the Army.

SPEAKER_03 5:06

Well, people who are still talking about what they did 30 years ago haven't done much lately, Sharif. That's a good rule in life. Understood.

SPEAKER_01 5:13

So I was just one of those lawyers who was making it being a pain in the ass to everybody. But no, I've actually Jim's not giving himself enough credit. You're an Army Ranger.

SPEAKER_03 5:21

I was in the Ranger Battalion. I had the best job in the world. I was a uh rifle platoon leader in the third ranger battalion. That is awesome. It was an awesome way to spend a couple years. Leaves a really good mark on you, as you know from what you did. But went from there, knew I didn't want to stay in the army forever and wanted to kind of settle down in one place and raise a family. And um someone was asleep at the switch at UVA Law Admissions, and I snuck in there and spent three years and then uh clerked for a judge here in Richmond, Dick Williams, who was kind of a legendary trial lawyer himself from another generation. Went back to Charlottesville and stayed there for almost 30 years with McGuire Woods and just left at the end of last year, and I'm now with McCam and mediating cases instead of uh slugging it out in court trying to help people resolve them.

SPEAKER_01 6:11

Going to mediation like the same thing or the similar to when you know how like judges who can't retire, they go from active instead of retire to senior status where they make no more money, but they just stay busy. Yeah. Is that or um I'm I'm joking, obviously.

SPEAKER_03 6:28

I don't want to speak for a lot of judges. So in my class this year, there were uh six of us, and four were retired jurists, and they're really good at what they do, and a lot of people need judges to mediate their case for different reasons. But I think some cases and some lawyers would rather have lawyers do it. And I'm amazed at how much more experience you have as a lawyer in mediating cases than you do as a judge. Judges aren't really used to negotiating, right? They rule and they tell you what's gonna happen, and it happens, and it either gets affirmed or reversed, but that's the end of the story for them. And I think sometimes mediation requires something different than that. So hopefully I'll be able to bring that to the table. But I thought it was a way to stay involved and stay connected to something I really enjoyed doing on a different level and at a different pace.

SPEAKER_01 7:17

Yeah.

SPEAKER_03 7:18

Uh still bill in hours, though, right? Yeah, still billing hours, but there's a lot less pressure.

SPEAKER_01 7:21

Yeah, not every six minutes.

SPEAKER_03 7:23

Not every six minutes and uh and no targets. They'll let you do what you want to do.

SPEAKER_01 7:27

I like it. No, that's awesome. We'll have to at some point we'll have to figure something. Well, when our firm does choose to mediate, which isn't often, but we're warming up to the idea, we'll have to get you involved. And I I do see, not to take us off track, but I do see a lot of value in, especially at lawyers, at least from our side, with significant experience in the defense serving as mediators. As I mentioned, Stan Wellman is a friend of mine and uh a great lawyer in his own right and a great mediator. And he's typically our first choice when it comes to mediation.

SPEAKER_03 7:56

Stan's really good. His partner, Mark Nanavati, is doing it now. Yep. And is going to bring a healthy perspective to that as well. And I think if you're a plaintiff and you're willing to choose a defense person as a mediator, or you're a defendant and you're willing to choose a plaintiff's lawyer as a mediator, or a judge with maybe a different reputation that speaks really well, and and there's no reason you shouldn't. No mediator is gonna make you do something you don't want to do. So I think it puts the other side at ease a little bit, and I think there's a lot of advantages to that if in the right case.

SPEAKER_01 8:29

Absolutely. Absolutely. Well, let's take you back to a case that you handled a number of years ago involving a pretty horrific collision on 64. Can you tell us kind of what was going on with that case?

SPEAKER_03 8:42

Yeah, really tough case. So those were the old days when big law firms still were doing some insurance defense stuff. And I was very lucky to start at Maguire Woods at a time when as a young associate, I could occasionally work on the big case that was fun and exciting and maybe in the newspaper. But far more often I was doing a supermarket slip or fall or a rear-ender, or this was about 10 years into my practice, and this was a case where the insurance company for a big company here in Richmond, a Fortune 50 company, had an executive coming back from a sales meeting in Mexico, and he landed at Richmond International and was driving home late at night. So he was going from the east side of Richmond to the west side. And uh head-on collision on 64, two SUVs at highway speed. Both drivers fortunately were alone, but both drivers died. Terrible fire, terrible collision. Late at night, lots of witnesses, and all the witnesses said uniformly that the white car was going the wrong way and the red car was going the right way. And unfortunately for my guy and his widow and his four children, he was driving the white car. And so four witnesses put him going the wrong way, even though that story didn't make a lot of sense to us on the surface. So we we had our work cut out for us in the case. We were a defendant, unwillingly, in a wrongful death case.

SPEAKER_01 10:05

And I know we'll get to that, but you eventually, you I mean, you filed a counterclaim, right? I mean, yeah, which you don't you don't usually see, right, in a wrongful death case. Um, no, not at all. And what's interesting, and I used to do, I mean, I did a lot of criminal work. Ironically, I've only been a personal injured lawyer for four years, which is crazy to think that our firm's done what we've done. But uh, I did mostly criminal work beforehand. And one of the things that I would notice, and I think it's not just exclusive to criminal law, but the police report is often considered kind of like the North Pole, right? Like the police report isn't really scrutinized, it is what it is. That's what happened, and kind of we just take that as gospel, right? Written in stone. That's right. And that it's on the criminal side, and we see it even here on the civil side. Well, the police report said this. And so once the police report is not in your client's favor, it is, as you know, an uphill battle to get people to change their mind.

SPEAKER_03 10:57

Really tough. And I don't blame the state trooper who filled out the report, right? He had four witnesses all telling him the same thing. It was 2 a.m. His shift, he wanted to get home safe to his family. He didn't cut corners or take shortcuts, he just wrote down what he was told. And from what he saw that night, it probably made a lot of sense. But it it turns out that he, I think, had the wrong guy going the wrong way and the or the wrong guy going the right way and the right guy going the wrong way.

SPEAKER_01 11:24

Yeah, and that's it's so Virginia is interesting in the sense that like we don't allow for accident reconstruction testimony typically. That's whereas in other states, and I know colleagues I have in other states were like, huh, that's crazy. They'll have the police officer take the stand and they'll say, Yep, you're an expert, you've been doing all this stuff. Well, tell us what happened in this car crash, right? And uh Virginia doesn't allow, and I actually kind of I don't know, I don't know what that would be like with that type of testimony allowed. I like it because at the end of the day, like if police officers are not watching what happened, they're just coming and doing an after-action sort of gathering of the facts and doing the best they can to try and figure out what happened.

SPEAKER_03 12:00

I think it's almost an advantage. And it's I think it's a little bit like the contrib rule on on paper, the contrib rule looks like a real problem for plaintiffs. Right. I think in reality, jurors treat it differently. And I think the rule about accident reconstruction looks like something on paper. But the truth is, and this trial was a good example, you can reconstruct the hell out of an accident, but you have to do it with the jury. You can't beat them over the head and tell them what happened, sure. But you can give them all the tools they need to reconstruct it themselves.

SPEAKER_01 12:29

Exactly. And that's frankly, to your point, that's more effective. It's always more effective because you're not bringing in the expert to say, well, just look at this expert and he did his own analysis and just trust that guy, right?

SPEAKER_03 12:39

If you do that, you're gonna have jurors who accept that, you're gonna have jurors who reject it. But if you give them piece by piece and you let them come to their own conclusion, then they're gonna go back in the jury room and they're gonna fight like hell for that position. Absolutely. Well, tell us, how did you get involved in this case? So it was a big company. It was in the days when GE had a real presence here, and I think it's probably been long enough. I'm I'm not divulging any client confidences here, but so this was a GE executive. Got it. And we were doing general electric work and uh GE FANEC work in Charlottesville, and so they knew where to find us, they had their sort of captive insurance company, and as a result, the case landed at McGuire Woods.

SPEAKER_01 13:20

And was this the typical type of case that you would handle at that point in time at McGuire Woods? Or you specifically, like what was your practice like then? How did this case find itself on your desk?

SPEAKER_03 13:31

Yeah, it's a good question. I think when I started, I was nominally on the General Motors team. So we were defending auto manufacturers against product defects. Okay. We did a lot of seekback cases, we did a lot of fuel-fed fire cases, real serious injuries, real big client. They really knew how they wanted cases handled. So I was used to the reconstruction principles and I was used to tort law, and it was halfway to Charlottesville, so it was in my neck of the woods geographically. But I didn't spend all my time on that stuff, and I filled it with a variety of really sexy supermarket slip and falls and you know, basic rear-renders, and all the stuff that today insurance defense firms do.

SPEAKER_01 14:15

Got it. Got it. You get that case file. I'm sure there's some sort of conversation about what the expectations are, but I'm sure one of the first things you do is you see that police report.

SPEAKER_03 14:25

See the police report and think, man, we've we got our work cut out for us here. Why aren't we resolving the case? And the employer, to its credit, and the insurance company for the employer said it just doesn't smell right. This guy's coming from the airport, driving west to Goochlin. He doesn't drink, he's sober, he's got toys, he's got presents for the kids in the back of the car that he bought in Mexico that they found afterwards. He's he'd called his wife halfway home. There's no reason for him to be going the wrong way on the highway. And and so you you know, that initial phone call from the client, you hear it, and sometimes it turns out to be correct, and sometimes it doesn't. But talking to this man's widow, there was no way you could hang up the phone with her and think that her husband had made a mistake like that. It was a route he'd driven a hundred times. He was a high functioning, smart, capable guy. He wasn't suicidal, he wasn't drunk, it was just inexplicable.

SPEAKER_01 15:23

So Yeah. Yeah. No, I'm and imagine if if I'm in your shoes sitting there, I'm like, okay, I've got this widow, I hear this story, but then I got this freaking police report and I got four eyewitnesses. Like, what am I gonna do? Right. I mean, once you started getting to work, when did you get to a point where you're like, you know what? I think they got it wrong.

SPEAKER_03 15:43

So I I remember a couple of events, it was long enough ago that I I don't have the timeline perfectly straight, Sharif, but I remember that. So we can make it more favorable. Yeah, exactly. Exactly. I can throw in the gaps. Yeah. Which is a big part of this story, because we all do that, right? We all remember things that we want to remember and we don't remember the things we don't want to remember. But I remember even though accident reconstruction is not allowed in Virginia, if you've got a big car collision case, truck collision case, it's a mistake not to hire a reconstructionist. And we did that. We hired somebody who helped us out with our automotive product liability cases, and he came up and he looked at the scene of the accident, and he found one of the cars was a Ford and one was a GM. I think we were driving the white GM. The other guy was driving the red Ford. And a lot of the debris was still on the side of the road and in the median. And I I was a really lousy science student, but I remember that objects in motion tend to stay in motion, right? And so the Ford was throwing things in one direction, and the General Motors car was throwing things in the other direction. And the the expert was able to walk along the median and find a hubcap or a light piece or a grill piece or an emb a hood emblem. And he really convincingly mapped it all out and said, Look at this. The Ford is obviously going east to west because all the debris is westward, and the General Motors car is obviously going west to east because it threw stuff in that direction. And and I don't think the cop got it right. And it was late at night and those witnesses were far away, and I'd really like to talk to those witnesses. But there was enough there to keep digging. And so we kept digging and we pressed and pressed, and we were privy to our guy's blood and alcohol, which came back clean. And we were really curious about the other guy's blood and alcohol, and we kept pressing and kept pressing, and lo and behold, he had a lot of alcohol on board. And now the story now we were convinced that the four witnesses, even though they were unanimous, were wrong. They weren't lying, they were just mistaken. And we had to show that somehow.

SPEAKER_01 17:51

Did you speak with those? And I think I know the answer, but did you speak with those witnesses during the investigation part? And if so, kind of what was that like?

SPEAKER_03 18:00

Yeah, we we did, or we tried to. Not everyone wanted to. Right. And at first it was a really light touch, Sharif. You know that dance, right? You uh you don't want to be overbearing because everybody gets defensive in that. Absolutely.

SPEAKER_01 18:13

People double down.

SPEAKER_03 18:13

People double down.

SPEAKER_01 18:14

So now it's no longer about the truth, it's about ego. Why are you all doing me?

SPEAKER_03 18:18

Of course I saw what I saw. And so one of the big lessons of this case for me was talk to the people who are willing to talk to you on whatever terms they're willing to talk to you. And then, you know, if you need to later, there'll be a deposition and you you can drill down on details then, but don't press it. Don't show up at their house and knock on their front door unannounced. Don't invite yourself in. Do it on their terms. And when you do that, they're a little more comfortable and they'll not let their guard down, but they'll speak more naturally. That's really important because then you get a better window into their mind. If you're seeing them for the first time on the witness stand and they're in a coat and tie and you're in a suit, there's enough of a barrier there that the chances of getting unfiltered, accurate information, I think, are next to nothing.

SPEAKER_01 19:03

Right. Was there what's what question did I want to ask? But at what point I you know what I'm thinking of? I'm thinking of my cousin Vinny. You know, I I'm I'm genuinely thinking about like, you know, how he takes one witness basically one by one and the screen. Yeah, maybe it's time for a new set of prescriptions. Right? What was it that convinced you guys like they were just wrong?

SPEAKER_03 19:31

So there was one witness in particular who was behind the right-way driver traveling east to west, but a good ways behind, eighth of a mile, quarter mile. So he saw the accident unfolding up front, but it was far enough away that he he didn't see everything close up. And he described this he saw it about to happen. He says, Oh my god. He can see that they're not going to avoid each other. He sees the impact, he sees both cars, roll fun or collision. I mean, the the cars were just destroyed, the whole front end was gone. They instantly explode into flames. There's no chance of getting either driver out. Terrible, terrible thing to witness. And one of the cars, it was slightly off-center, so one of the cars spun and spun and spun. And he was adamant of Sharif. Absolutely adamant. And I'm sure it was very traumatic for him, right? Uh nobody wants to see that. But he was adamant that as that car was spinning, he saw the headlights going round and round and round. And the headlights were gone. I mean, the hood was gone, the grill was gone, the front end was gone, there weren't any headlights left. There was nothing left of these cars. That was the memory he had constructed, not the one he actually saw. And at that point it became pretty clear to me that as well-meaning as these witnesses were, the information they gave the police officers was as much a reaction to a traumatic event as it was actual observations.

SPEAKER_01 21:04

At any point did you ever notice that like maybe the investigation was flawed in the sense and what do I mean by that? What I mean is like interviewing a witness is a skill in and of itself. If you give them information that they probably shouldn't be privy to, that very well can sweat or skew their testimony, right? Or their recollection. Did you guys notice any of that? Yeah.

SPEAKER_03 21:29

So if you get if you get four witnesses together on the side of the road late at night. Right, and ask them what happened. And ask them what happened, and they're literally standing there together, the chances of one of them saying, I saw something different than the other three are almost zero. So what happens in a circumstance like that is the one who's most certain gives his or her version of the story, and everybody else remembers what they saw that was not inconsistent with that and nods and says, Yeah, that's that's right. That's what happened. It's really fascinating. There's an old story, another podcast about Fry, the guy who, you know, the Fry test before Daubert?

SPEAKER_01 22:04

Yes.

SPEAKER_03 22:05

So that was named after the lie detector inventor. I think he's also involved in like Wonder Woman and the Golden Lasso. He was the creator of that show or something. It's kind of an interesting legal cultural thing, but he used to teach a class, big seminar, and uh his first day of class, he would have he would get all the students seated and he'd start his lecture, and someone would burst in from stage right with a weapon and pretend to assault him. And then run off the stage. And it was all stage. Nobody really got hurt. And then they would instantly start interviewing the students separately. And they'd get if there were a hundred students, they'd get a hundred different stories. It was a gun, it was a knife, he had a black shirt, he had a red shirt. He was dark complexed, he was light skinned, completely different. And it's just we all see different stuff. But if you brought people together, they all kind of synthesized around one story. His point was that our perceptions are really malleable. And I think that's right.

SPEAKER_01 23:06

They are. And I think we naturally give our perceptions more credit than they deserve.

SPEAKER_03 23:11

A lot more. And we dig into them.

SPEAKER_01 23:12

Especially our own, right?

SPEAKER_03 23:13

And the more we're challenged about it. The harder it is to the harder it is to divest yourself of the sense that you're right.

SPEAKER_01 23:19

I mean, so Herbert Stern, uh, in my mind, just an absolute legend, right? And I'm sure I'm not the only one who shares that, but he has a really good video on YouTube that's like a preview of his series on opening statement. And he talks about kind of the story about how like you and Buddy are watching a football game and you don't really have any allegiance to either team, neither does your buddy. But there's no way you can sit there and be neutral, right? You're gonna ultimately pull for a side. And so he's saying that in the sense of like, think of a juror listening to an opening statement. They're going to start pulling for a side. But then he says, during the football game, whistle blows, holding. There's a call. Both people are looking at the exact same thing. They're watching the replays. You're saying that's holding, it's coming back. Your buddy's saying, not a chance, not holding at all. You're looking at the exact same thing. And then the thing I think was most relevant to what you just said, and he says, you're not going to convince your buddy because it's now it's not about the truth. It's not about the facts. It's about that, plus the fact that your buddy has now decided which version is right. So for your buddy to come back and say, no, no, no, it's actually the other way. It's not that he has to see different facts or view them in a different light. It's he has to tell himself that his first reaction, his first conclusion was wrong. And I think that's when we talk about double down and why first impressions, opening statements are so important, is because once people make up their mind, it's no you're no longer just asking them to look a different way. You're now asking them to look at their former self and say, hey, you actually got it wrong.

SPEAKER_03 24:58

It's it's a lot harder to backtrack.

SPEAKER_01 25:00

That's right.

SPEAKER_03 25:01

And that's one of the reasons I think as a good trial lawyer, if you can kind of spoon feed your case and little bite-sized pieces to the jury and have them take one fact at a time and build their own conclusion from it, you're gonna be a lot better off because then it's it's their conclusion. It's theirs. And use that difficulty and backtracking we all have to your advantage. If you tell them, oh, the plaintiff was contributorily negligent, maybe one or two will believe that. But if they don't, you'll never get them there. But if you give them ten facts that in their mind say, Yeah, I'm I wouldn't have done that if I were that person. Or I would hope my kid wouldn't do that. Then all of a sudden you've got them thinking your way, but it they've made up their own mind.

SPEAKER_01 25:44

Absolutely.

SPEAKER_03 25:44

Once a juror makes up his or her own mind. It's over.

SPEAKER_01 25:47

For the most part, right? You've you're almost which is why I mean voidier opening statement are just incredible. Yeah, it's just so important. And I've actually expanded it. I've stole this from Nick Rowley, who's an exceptional trial lawyer. It's also your first witness, right? I mean, it's well, it's it's everything really, but it's I mean, because voidier, right? Hope you're building some credibility, you're getting the issues out there, you're framing things in the ways that you ask questions, all that stuff. Opening statement you're telling about your case, and hopefully you're giving in the right facts, then your first witness, especially if you're a plaintiff, that's your opportunity to put someone who's not you that's going to have credibility and will support everything you just said for the last hour or two, whatever it was, right? And so a big thing that we like to do is like if we can have a police officer and that's our first witness, we've got the weight of the bad. In a uniform, absolutely good haircut, looking short shoulders, the um shirt stays that we had to wear at VMI, so there's no wrinkles or whatever. But he, I'm sure, but what you can't see is all the leg hair that is lost because of it. But uh, but yeah, so I mean it's just so, so important. So, what was it like in this case working it up? Because my understanding is it's ultimately made it to trial.

SPEAKER_03 26:56

So it made it to trial and and why?

SPEAKER_01 26:58

Like what was the defense thinking?

SPEAKER_03 27:00

Yeah, we guess I take that back. The plaintiff, right. The plaintiff was thinking. So we got the blood alcohol numbers and they they were good for us. And so the other side then kind of went to battle against the lab and said, Well, you mixed up the samples, and they were sort of forced into some corners that were unpleasant to be forced into. And then the police reconstruction team came in and they redid the whole thing and they completely reversed their findings. So we had two competing police reports. We had the trooper on the night of the accident saying one thing that was not favorable to us, and a full-blown reconstruction team on the other side saying something that was. And by then we were really confident. But they were so far in that they were gonna roll the dice and take a chance. Did those And they still had their four witnesses.

SPEAKER_01 27:48

That's what I was gonna get to. Did those four witnesses, and I'm guessing the answer is no, but did they ever like come back and change their minds? So I never asked them to, Sharif.

SPEAKER_03 27:56

And I think one of the great lessons in the case for me was I had witnesses that I I sort of knew were wrong. I was really convinced of that. But it was never my goal to get them to admit that. Right. Or to embarrass them in front of the jury. Or to make them out to be a liar and make them out to be a liar. They weren't lying, they were just mistaken. And so we decided to let them tell their story. And the more they dug in. Right. And we didn't push them or challenge them, or they told their story. And human nature is to tell the best story you can tell. And where you're lacking specific recollection, fill it in with a blank.

unknown 28:39

Right.

SPEAKER_03 28:39

So at trial, those spinning headlights were high beam, and they were blinding the guy, and they were round and round and round. And we had uh our reconstructionist who couldn't testify, but who made scale models of the vehicles before and after the crash? We had the scale models of the crushed cars without any front end. And as that witness was describing what he remembered, we were holding up a scale model, and I remember two of the jurors looking at me and nodding, and they knew exactly what was wrong with this guy's testimony.

SPEAKER_01 29:18

Aaron Powell How did you get ahead of their testimony? Because I I imagine that either an opening or at some point, or even from I'm sure maybe even parts of the jury's selection, there had to be something to frame it or to preview this issue rather than just wait till cross.

SPEAKER_03 29:35

Yeah, so we had two things that were locked in time, written in stone, so to speak. One was that that debris field and and the other was that blood alcohol test. And those were sort of instantaneous, irrefutable, concrete, tangible evidence that gave us license to call into question the eyewitnesses.

SPEAKER_01 29:58

When you did call them into question, though, was it something along the lines of, guys, you're gonna hear from four people. They're gonna go take that stand, they're gonna raise the right hand, and they're gonna tell you what they believed they saw.

SPEAKER_03 30:09

It was that, and it was a picture of an oncoming car at night that was white. And so we could say they're gonna say the wrong way car was white, and we could point to those blinding headlights. And of course they thought the oncoming wrongway car was white. They're gonna say that the right way car was red, and there was a car with taillights. Because every car from a distance going the right way looks red.

unknown 31:32

Right.

SPEAKER_01 31:33

Because of the taillights.

SPEAKER_03 31:34

Because of the taillights. That's right. And again, we weren't asking the jurors to disbelieve them at that point. We were just saying keep an open mind until you see all the physical evidence. And when you do, we'll come back and we'll look at what the witnesses say and how that fits in.

SPEAKER_01 31:49

I like that.

SPEAKER_03 31:49

No, that makes a lot of sense. And most jurors are gonna be patient. They're gonna now they're sitting on the edge of their seats and they're waiting a little bit and they know there's more to the story, and and they're it gives you a little license to be a little more skeptical.

SPEAKER_01 32:05

Well, and also it sounds like in doing so, you guys empowered the jury to be like, listen, like we want you to really focus and get to the truth here. And it's not going to be apparent just off the bat. It may not be what's been told to you, right? You are the detectives in this case. Mark Lanier, an incredible trial lawyer right out of Texas. He has an opening that I've watched too many times. My wife, so the joke at my house is while we're on the couch at night watching TV. I say we, it's not really we. It's my wife is watching something like Love Island, just horrendous TV. And I'm like on the computer.

SPEAKER_03 32:36

She might be listening to this. You better be careful.

SPEAKER_01 32:38

She no, she's told me. She listen, Sharif, she's like, I love you, but you do a lot of these podcasts, and I she's got better things to do. She's got better things to do. And I'm on the couch on my laptop, like watching like Mark Lanier and do his opening statement in on a what do you call it, a baby tout case against Johnson and Johnson. I'm like having the time of my life. But in that opening statement, and it's fantastic, it's like an hour long, but it's truly, truly exceptional. I mean, he empowers a jury. You are it's a it was in St. Louis. He goes, You are CSI St. Louis during this trial. It is your job to peel through all the the mess and to figure out what happened. And it sounds like you guys kind of did something similar.

SPEAKER_03 33:13

We did that, and I think Mark would say, what was Mark's recent big victory? Was he the social media?

SPEAKER_01 33:19

It was a social media against at least two of them. Meta or Meta and maybe you two. I think there was four, and then two of them settled out. Mark's done well for himself. Oh my gosh, that guy's incredible.

SPEAKER_03 33:31

But I think he's tapped into the fact that what jurors know about courtrooms, what they see on CSI or you know, those shows. And I think they want science and they demand it. So that's one more reason not to come in with a foregone conclusion. Give them the facts and let them play detective. And if you can give them some blood alcohol evidence, and you can give them some physics, and you can give them some cell phone tower data, which we had.

SPEAKER_01 33:58

Well, and that visual. I mean the power of visuals, right? You're holding up a model of a car that doesn't have headlights. And yet you've got how do you rectify that with that witness testimony, juror, right?

SPEAKER_03 34:08

You can you can't make sure that's and you never have to call that witness a liar or stupid or conniving or anything like that. You just in fact, I think the more sympathy you express for that witness, the better, because keep this in mind, every juror is gonna kind of associate with that witness. That witness is the only person in the courtroom who's not being paid to be there. Right. And there, but for the grace of God, go I. And if I see a lawyer being a jerk to somebody else who just walks in off the street, I might be skeptical what that lawyer is selling.

SPEAKER_01 34:41

Absolutely. Absolutely. Yeah. The idea that an effective lawyer is like hammering someone in a courtroom, it's not reality. That best lawyers, Charlotte, I know, are the kindest people in the courtroom, kindest people outside the courtroom. I mean, just there's a time and a place to they've got the jury's gotta give you permission, though.

SPEAKER_03 34:58

But the jury's got to give you permission, and you can't misplay that card, right? You've got to if you're that guy when you shouldn't be that guy, it's gonna be a long day for your client.

SPEAKER_01 35:08

Absolutely.

SPEAKER_03 35:09

And so one of the things that I think is really helpful when a witness gets on the stand is to figure out where does this witness want to go on his own if we let him. The eyewitness wants to be respected and revered and not questioned. The cop wants to be an authority figure without being overbearing. And let them go that way because they're gonna run in that direction. And you just have to figure out how you can use that direction to help your case. Later in my career I was doing a lot of innocence project stuff, habeas appeals for prisoners who uh were challenging their convictions. And um there was a bad cop in Norfolk who took advantage of a lot of kids and uh wound up doing time himself for selling false testimony from the witness stand. Really not a he was a bad cop. He always had a partner, and I think most of his partners were good cops, and I don't think most of his partners saw him doing bad things. But every time we would challenge the bad cop's actions, the attorney general would come in with an affidavit from his partner saying he didn't do that, I never saw him do that. So you'd have the good cop on the stand, the bad cop was nowhere to be found, right? He's long gone. But the good cop would be saying things like, Well, I never saw him do that. But the good cop wants to put a little distance between himself and the bad cop. And so let him put distance between himself because he doesn't want to be in the room when the bad cop's roughing up a sixteen-year-old suspect or lying to somebody or taking money from a defendant, all of which this guy did. The good cop wants to say, Well, I I wasn't with him 24-7. And uh there were lots of times when I went out to chase down another lead and he was on his own. That's the direction he wants to go in naturally. So take him there. And before you know it, you've created a chasm between him and his testimony about what he saw or didn't see the bad cop do isn't relevant anymore.

SPEAKER_01 37:07

Absolutely.

SPEAKER_03 37:08

I I remember being shocked at one of the first expert witness depositions I saw a a pro take. Uh it was Rosie Page was a great trial lawyer in our firm, and I was a very young lawyer, and I was carrying his briefcase at a deposition in a GM case, and he was deposing the the primary expert on the plaintiff's side. And I thought he was gonna go in there with guns blazing. And he just walked through the experts' methodology, got the materials, asked them to explain things. They respected each other, they were courteous to each other. There was nothing uh hostile about it at all. But he got everything he needed to cross-examine them later, and it was a really eye-opening lesson for me. Don't be somebody you think you're supposed to be, be what your client needs you to be.

SPEAKER_01 38:09

And I tell people all the time we need to have the discipline that you can, what do you call it, you can lose a battle but still win the war, right? Like there may be a good reason not to cross somebody, right? And you don't have any points to make. Just get them off the standard. Get them off the stand, right? And that may be the best thing. And so having that kind of long game approach is critical. So you're not getting lost in the fights, right?

SPEAKER_03 38:32

Yeah, I think all of us as trialers probably when we lose a point, we probably think it hurts more than it does. And when we win a point, we probably think it helps a lot more than it does. And it's definitely uh rather than a score sheet and tally point by point, it's definitely a a general sense, I think, that jurors have that's much less quantifiable than that.

SPEAKER_01 38:54

There's a quote, I don't remember who had it, and who knows, it could be fictional, but it's like something along like juries are not leaves that aimlessly like float in the wind, right? Like they're just not, right? But I know exactly what you're talking about, Jim. It's oh crap. That's a good point. And they just scored it, right? They just scored it. We're losing. We're losing.

SPEAKER_03 39:13

And I'm you know, and now I'm really angry and frustrated. I'm gonna let that show and I'm gonna lash out at this witness. That it's a natural reaction, but I think it's the wrong one. There was an old saying from the army days, you you might have heard it, slow is smooth and smooth is fast. Like the fastest way to get the jury to where you want to go is to just slow down and give them the pieces they need to construct their own conclusion. And once they've got that conclusion, they can hear some stuff to the contrary. Because no trials a hundred percent one way or the other, right? You're never gonna win every point at a trial. The case would never get tried. Wow.

SPEAKER_01 39:48

The only ones that are like that are your pro se criminal defendant cases. Those are those are I'm joking, not all of them, but for the most part.

SPEAKER_03 39:56

But even there, think about that judge who's gotta give that pro se criminal defendant every benefit of it.

SPEAKER_01 40:02

They're horrendous.

SPEAKER_03 40:03

There's nothing harder, right?

SPEAKER_01 40:05

I remember we had one. I was uh when I did the federal district, I did two clerkships, the federal and circuit and the district one. One of the trials we had was a pro se defendant, and my gosh, that was hard. And it's funny because I think your average person would think, oh, they're not defended. That should be a slam dung. No, it's horrendous because now you've got to like watch out for everything. You can't rely on what you otherwise would, which is the lawyers kind of narrowing in on the important issues. It's completely unpredictable. It is.

SPEAKER_03 40:31

And the judge has given them a much longer leash than they would a lawyer.

SPEAKER_01 40:35

Oh my gosh. That was a wild trial. That was a wild trial, if I remember it.

SPEAKER_03 40:38

But well, let's get back to your case. What was the verdict? The judge had bifurcated it. So the first task was to decide who the wrong way driver was. The jury came back, and by the end of the trial, I was pretty confident that they were gonna come back the right way on that question, and they did. And then we moved on to damages. And Sharif, I'm I really screwed up. I was kind of I am not kind of embarrassed, I was really embarrassed because I didn't do my client the justice she deserved. We had a bunch of UIM insurance, and we had already convinced our UIM carriers that our guy was the victim, not the wrongdoer. And so they had already tendered their limits. And so it was almost like trying a case with a high low. Once we got the liability determination, the damages for us, practically speaking, were set because the wrongway driver didn't have any other assets beyond that UIM coverage that we possessed. And so I didn't have a good UIM case planned, and I now realize I realized as soon as that happened, my client really needed the chance to vindicate her husband's memory.

SPEAKER_01 41:47

It wasn't about Hey, I get what you're saying.

SPEAKER_03 41:49

And it was really important to her that the jury say my husband was not the wrong way driver and the drunk killed him. But it was equally important for her to tell them what a great guy he was, and I didn't do what I should have done in that regard. So you know, I think too often we go into trial thinking about what we need to win it. And I knew where the finish line was and I was gonna stop at the finish line, and I needed to run a little bit past that for her sake, and didn't do that. So I if she's listening, I apologize.

SPEAKER_01 42:22

Well, I'm sure she was very happy that I mean you took a case that most people would think very long and hard about taking and got a good result objectively. Your comment brings up a really important point. I mean, our firm plan is personal injury exclusively. We don't really touch MedMao nursing home. We do take a lot of the more nuanced, challenging, like crime victim type work. And I can tell you, like, it I can't think of a single client. And I mean, I'm sure there's gotta be one, but they call up and they say, you know what, I just I just want money. I want to sell them a check. Yeah, and what I've kind of come to believe is that clients have three goals. And because of that, we have three goals with our cases. It's one, it's they want accountability, first and foremost. At a minimum, they want someone to say, you know what, I'm sorry, this shouldn't happen to you. I was wrong, be it the individual, the corporate entity. Two, uh, and I hear this all the time, it's I want to make sure that this doesn't happen again to somebody else. They want that public safety piece, that deterrence. And three, it very rarely are like, well, I want this amount of money, right? It's they're almost people are almost sheepish when they even think about this idea of money. And so the way that we phrase it is they're not asking for money. They're asking for, which I know sounds ludicrous. Like the I I'll tell people these cases, while they're all about money, they have nothing to do with money. Because money is symbolic for the value that's being recognized for what's been taken from the person's health and quality of life, or in the wrongful death situation, that their loved one, that relationship had value and it had real value. And the only tool that we have, right, is currency. And so it's that recognition. And so I've found that, and I think what you're saying is just so important. There is a cathartic effect, I think, for some to hear a jury say what happened to you was wrong, and what you lost mattered. And that's what a verdict can do.

SPEAKER_03 44:17

And I I suspect you've never had a client come to you after the fact and say it was worth it. The amount of money I got makes up for the loss, whatever it has been. But you probably have had clients who didn't get what they deserved, but are still grateful for the opportunity to put on their case.

SPEAKER_01 44:35

I've had criminal cases in which I've lost, and they're st and they're going to jail. They're going to jail. And they're still grateful. And I I still remember it was an army, there was an army at this was this guy didn't go to jail, but I mean his career, he lost his career. Well, actually, I think it ended up working out for him because we appealed and there was an error, but I wasn't ultimately the one that got the vindication. It was one of my colleagues because I had already PCS'. But, anyways, I remember I lost this admin set board, which is like the arm for the listeners, that's like a mini jury trial with board panel of officers, and it's administrative separation, so it's not criminal, but the person's gonna lose their job, right? And it's more than a job for service members, it's for some of them, it's right. And then you leave with a less than honorable, probably. Yeah, I forgot which one this was, but it was like a job. I I forgot what it was. But I remember I lose and I felt so bad, and we went out to the parking lot, and I remember the guy being like, you know, like you fought for me, and like that mattered. And I and I've never, I mean, it's I don't know how many years it's been since then, but I mean the fact that I still remember that means just people want an advocate. They want someone who is gonna believe in them, who's gonna put in the work, and is gonna fight like hell. And we can't control the result. We never will control the result. But that effort, I think, is, as you said, is is always appreciated.

SPEAKER_03 45:50

Especially if you do criminal law or you do some pro bono stuff, it's a superpower you got that you should be aware of. A lot of times you're helping people who have never had an advocate and have never had anybody go to bat form, right? They didn't have that support at home that you grew up with or I grew up with, and uh they didn't have that special coach or teacher or whomever pushing them to be better. And the first time they see it is after they get in trouble when someone is assigned to their case. I remember walking well, I'll start the story at the end. I was at this Innocence Project fundraiser event and somebody's up on stage, one of my former clients, and he's now released and he's wearing civvies up there instead of the prison garb I met him in. And he's asked, When did you what was it like walking out of prison when you got released? He said, I I don't remember really remember that. Let me tell you what I do remember. I remember when the team walked into my jail cell and said, All right, this is what we're gonna do, and we're taking your case, and this is how we're gonna win it. And he said, They walked out, and for the first time I had lawyers working for me and uh helping me. That was years before we won the case, but all he needed was somebody to have confidence in him, to help him up, to say they'd be with him. And you can do that whether you're helping somebody out of an abusive relationship or uh, you know, a bad apartment lease or whatever the case is. Lawyers need to do that. Yeah, what they do full time.

SPEAKER_01 47:23

And it's kind of a reminder that like these aren't files on a desk, these are human beings. Yeah, right. And there's and some of them are files, but yeah, some I mean, but like there's Usually there's something behind that. Yeah, and this this is their only case, right? This has been a lot of fun, Jim. Well, thanks for having me. We're not there yet. I got another question for you. So uh question that I always ask. It's my favorite question. Knowing all that you know now, you could go back in time when you were graduating law school and give yourself some advice. Hopefully that you'd listen to it. Because I know my old, so I wouldn't have listened to it, even if it was great advice because uh I was just so stubborn. What would you tell yourself?

SPEAKER_03 47:59

It's a good question. I I don't spend a lot of time looking backwards. I probably should do more of it. But my brother-in-law is a lawyer and he told me once something that resonated. He said, Whatever you're doing, you need to figure out what your objective is. You want to support the family, that's fine. It can be that simple. Or you want to be a great trial lawyer, that's fine. But if you're not spending every day thinking about how is my current job helping me do what I really want to do. And if you're confusing your current job's expectations of you as your own goals, once you lose sight of your goals and substitute somebody else's, those are lawyers I think who lose the script, right? And it's easy. If you're if you go to a big we're all competitive, we all are used to doing better than average, maybe on the team or uh in the military or in the classroom or whatever. If you get to a a firm and they put a set of objectives in front of you, build this number of hours, make partner in this number of years, don't ever confuse those gateways for your own objectives. And if you're in a place where whatever it is you truly want to do is the place is making that more likely, you're in the right place. And if you're in a place where it's not making it more likely, you ought to be looking around for another place. You should always be looking, even if you're really happy. And uh it's not that I didn't do that, but I think I could have been more uh more deliberate about asking those questions periodically. We should all probably be more deliberate about that.

SPEAKER_01 49:39

No, it's great advice. Well, Jim, this has been fun. So you're mediating now with the McCamin Group, right? So I am. Yeah. Handle a lot of injury cases, I imagine, and nothing else.

SPEAKER_03 49:49

Paul McCamin, a lot of injury cases, a lot of commercial cases, insurance coverage, construction, that kind of thing. So the stuff I did for 30 years and all the scar tissue that I acquired and those losing trial efforts and a few of the winning trial efforts or paying dividends because I can hopefully ask some questions that um make you think about your case a little bit differently. I know you're you're focused on the courtroom, that's great. But uh when there's a case to mediate, let me know and we'll do our best to help you get it resolved.

SPEAKER_01 50:20

Now, is there are you focused on Virginia? Are you doing it all over? What's the point?

SPEAKER_03 50:23

Yeah, I I so I one of the reasons I wanted to mediate is so that I could focus more on Virginia. It got to a point at the firm where the phone would ring from Los Angeles or Chicago and I'd wind up unexpectedly there for a few months or a year, and I'd kind of had enough for that. I got enough Marriott points right now. Sure.

SPEAKER_01 50:41

Are you a part of the M Club? I'm uh Gray at our firm. Gray, my partner, he is a proud member of the Marriott M Club.

SPEAKER_03 50:49

One year, the uh first and it may have been the only Christmas present I got was a cutting board from the hotel that I'd been staying at far too much that year. And I decided at that point that I wanted to do more Virginia work than Virginia's fine other places.

SPEAKER_01 51:04

It's a it's a cool state.

SPEAKER_03 51:05

It is, and the more work you do outside Virginia, the more you realize this is a great place to practice law. It really is. It's a good bar, it's a really good bench, it's not ridiculously political, and uh. We're lucky to be lawyers here.

SPEAKER_01 51:18

We really are. Well, thank you, Jim.

SPEAKER_00 51:20

Thank you, Sharif.

SPEAKER_03 51:21

I appreciate it.

SPEAKER_00 51:22

Thanks for listening to Courtroom Stories and Tactics by RVA Trial Lawyers, hosted by Sharif Gray and Nial Abuzaki. Please subscribe and leave us a review on Apple Podcasts, Spotify, YouTube, or any major podcast platform. Together, we're building a tribe of trial lawyers to remind the world what human life is truly worth. One verdict at a time.