Episode Synopsis: Judge Stephen Dillard, the “Twitter Laureate of Georgia” and Presiding Judge of the Georgia Court of Appeals, shares how he has leveraged social media to bring transparency to his role at the court, and explains how lawyers can use social media responsibly and effectively to virtually mentor law students and to educate the public on the practice of law. We also discuss Judge Dillard’s more “global” view of complex litigation and how a potential appeal can help lawyers win better settlements and more secure judgments at trial.

Podcast Transcript: The following is a transcript of Episode 2 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Stephen: And I think judges being available on the platforms where the vast majority of communication is going on, it makes sense. And judges can use those platforms for good. Judges can make stupid statements in real life and they can make stupid statements on social media platforms. But judges can also make positive statements on social media. They can educate the public about the courts and what they do. They can use social media platforms to mentor young lawyers and law students. That’s something I never would have imagined, but it has just kind of organically happened. And it’s good given how little is known about the judiciary, what a mystery it is to many people. I think it’s also good for people just to see that judges are human beings.

Scott: That’s the honorable Stephen Dillard, presiding judge of the Georgia Court of Appeals, and Georgia’s very own Twitter laureate. He’s sharing why he is active on social media as an appellate judge, a role traditionally seen as distant, even monastic. In this episode, we talk about so much, including how to establish your authentic voice online as a lawyer or judge, the value of writing briefs as if they are a judicial opinion, and the importance of specialization as you think about legal issues, motions practice, and preserving your record for appeal. In other words, the importance of thinking about assembling an appellate teammate as part of your trial team to focus on shaping up your case for appellate victory even as you’re in the pre-trial stages of your case. I learned something new every time I speak with Judge Dillard, and today’s episode is no exception.

My name is Scott Key, and you’re listening to “The Advocates Key” podcast, a show that explores the art and science of litigation with the nation’s top legal thinkers. For more information and content like this, go to scottkeylaw.com.

So, I’m joined with Judge Steven Dillard, the presiding judge of the Georgia Court of Appeals, prior Chief Judge. And I’m happy to have him here with us today to talk a little bit about appellate practice, social media, whatever it is that we ended up talking about. How are you doing today?

Stephen: I’m doing well, my friend. I hope you are.

Scott: I’m doing great. How are things going with COVID at the court?

Stephen: I think the nice thing about being an appellate court and having a forward-thinking staff is that we had already been testing our systems and our ability to work remotely. We’d already been doing that long before there was any discussion about the pandemic just based on kind of our strategic plan and moving toward that more modern approach to work and having greater flexibility because even without the pandemic, as you know, Atlanta can be really challenging at different times just with regard to traffic or events that are going on. And so thankfully, our clerk and our staff did a lot of amazing work. So, when this hit, it was really kind of a turnkey operation. And we’ve been really fortunate. And a lot of the judges who live outside of Atlanta, we usually work from home anyway a couple of days a week. And so we’ve expanded that, obviously, but I think we’re doing fine. The work is getting done. If anything, I feel like I’m more productive because I’m not going to, you know, 10 or 12 events every month. I miss them, obviously. I miss being around people, but if there is a silver lining, it’s been that I’ve been able to get ahead in my work. And so I’ve been thankful for that. But I’ve been really pleased and proud of our staff for how they prepared us for this type of situation.

Scott: Well, appellate practice is one of the areas that lends itself to being able to work remotely. And I haven’t seen my physical office in about two weeks. I’ve fitted out my home office with… I bought better lighting, like, studio-quality lighting because I’m doing a lot of things by Zoom. Like I say, if you look for a silver lining, I think a lot of the things that can be done from home are done from home. And I’ve enjoyed doing routine motions, things like that from home.

Stephen: Right. Well, that’s gonna really be the interesting thing. Right, Scott? I mean, it’s going to be fascinating to see how much of this kind of brings the legal profession into the modern era. Are we still gonna have calendar calls where people sit around for hours waiting to simply announce? Maybe, but I think a lot of judges and courts are realizing just how much time was wasted and how much money was expended, you know, traveling or, you know, sitting around waiting for things to happen at the courtroom. And so I’m hoping that we’re gonna rethink. If there is a silver lining to all of this that we’re gonna rethink how we do the business of law. So, it’ll be interesting.

Scott: I really hope that some of the efficiencies sticks around after the pandemic is over because… I mean, there are certain things that you can only do in court. And I think the Court of Appeals and the Supreme Court has done a great job of moving oral argument online. I can’t wait for that to be back in person again.

Stephen: Me too.

Scott: But there are lots of routine administrative things, certain motions, you know, housekeeping sorts of things that we would be better off if we just move those things to online.

Stephen: I agree. And I think the appellate courts in Georgia, I think we’ve done about as well as… I mean, I’ve watched some of the Supreme Court’s arguments and I’ve obviously participated and watched a lot of hours. And I think we’ve done the best job we can in replicating the in-person argument, but it’s still not the same. But I am grateful because I think the attorneys who have appeared before us during this time have really worked well with our staff in kind of getting through the bugs and kind of getting like you’re dealing with your home office getting that equipped and ready to handle it. So, I think there have been a lot of really positives with lawyers and judges working together to keep the wheels of justice turning during the pandemic. But I’m like you. I can’t wait to get back to in-person oral arguments at the Court of Appeals. We’ve got that beautiful, as you know, that beautiful new courthouse and building in downtown Atlanta and we really wanna show it off. We want people to come see it and we want lawyers to be there and to be able to argue cases before us.

Scott: Right. I had an oral argument I think would have been in the new courthouse late in the winter. And that argument was moved to a college in South Georgia. So, I missed that opportunity to argue at the new courtroom. And then I have one coming up next month, but then that’s gonna be via Zoom, but I’m kind of excited to do it via Zoom as well. I think that’s gonna be kind of an interesting first for me as well. But I’m glad it’s working out.

Stephen: Me too. I mean, I think it could be a lot worse and like I said, I’ve been really impressed that we’ve been able to continue the business of our courts, largely due to our staff and their forward thinking, their strategy and their hard work just preparing us in general for the modern age. And so I hope all the courts are going to, as you pointed out, you know, think about these efficiencies that we’ve gained. And obviously, some of them, you know, may go by the wayside, but I suspect we’re gonna keep a lot of them.

Scott: Yeah, I certainly hope so. Well, I noticed during some of COVID or some of this period of time, I know that you and I teach together, so we know each other pretty well. But I don’t think I ever knew that you were the official Twitter Laureate of Georgia.

Stephen: Yeah. My good friend, Scott Holcomb, who’s a legislator, he and Josh McLaurin and Matt Wilson and there were some others too, and I apologize to them for not mentioning their names. But I think Scott was the one who spearheaded it. And when he found out about Judge Willett back when he was on the Supreme Court of Texas being the Twitter Laureate, it’s very nice. I think the main thing that I’m proud of is the extent that it recognizes doing social media in a way that can hopefully be positive, that can raise awareness and educate the public about the courts and, you know, hopefully, promote civility and civics education and things I care about. And so, you know, that’s really, to me, what’s being recognized. I mean, I’m in part being recognized, but I hope more importantly it’s the message that’s being recognized.

Scott: Well, and I’ve heard you speak at CLEs on this and I’ve heard you, you know, speak with the class about this. I know that having the kind of presence on Twitter, I think, has largely been very well received and most of the public and the bar and the bench really enjoy your Twitter account. But I know that there’s been some criticism of judges being on Twitter. What do you think is the good or the positive that comes with a judge on an appellate court or maybe even a trial judge or a Supreme Court justice being on Twitter and having a Twitter following?

Stephen: I think the most positive thing about it is… One of the things that’s often discussed in the media is that we don’t know enough about the courts, especially the judges that we elect in Georgia, we’ve made that decision. You and I could probably do an entire show on the pros and cons of judicial elections. That said, Georgia has made the decision to hold their judges directly accountable to the people through elections. And so because of that decision, I think, for a judge, it is political malpractice to not make those judges make themselves available to the public. And the positive of that is not just that it’s good politics, although, like my mom has always taught me, doing the right thing is good politics. And I think judges being available on the platforms where the vast majority of communication is going on, it makes sense. And judges can use those platforms for good. Judges can make stupid statements in real life and they can make stupid statements on social media platforms. But judges can also make positive statements on social media, they can educate the public about the courts and what they do. They can use social media platforms to mentor young lawyers and law students. That’s something I never would have imagined, but it has just kind of organically happened. And I mentor a lot of students and young lawyers throughout the United States. And that has been very rewarding. But I think just in general, it’s good given how little is known about the judiciary, what a mystery it is to many people. I think it’s also good for people just to see that judges are human beings. I think when you and I were coming up, Scott, I don’t wanna say we’re old, but we’re older. And we certainly have some experience now as lawyers and judges. And I wanna say when you and I were really young lawyers, you know, seeing a judge at a bar event or coming across one, I mean…

Scott: It was intimidating. It was very intimidating.

Stephen: It was intimidating. They had white hair. I mean, they seemed to be up here and we were down here. And that… I was intimidated. And when I became a judge, I just decided I wanted to take a different approach that I have always viewed being a judge, as a public servant. You serve the people. We’re not, you know, black robe philosopher leaders. So, that’s not… I’ve just never viewed the role of a judge that way. I take my job very seriously. I don’t take myself very seriously. I am a person who holds this position and trust. And I don’t think it’s a bad thing for people to know that there are judges who listen to alternative music and like college football and engage and consume some of the pop culture that other people in society. I think that’s a good thing. I think it lets people know that judges are human. They’re not just kind of cloistered off and they only come out when court is in session. So, my approach has been that you can educate the public about your job and what the Court of Appeals does. And you can still do that in person. I’ve done that through a law review where I’ve gone into detail, as you know, about the inner workings of the court. I’m big on transparency. I think it’s another way for courts and judges, courts can have their own accounts. It’s a way to promote transparency, to promote live streaming of our proceedings. There’s all sorts of things we can do. And I just think beyond that, I think it’s hard for judges who are going to be called upon to make really difficult decisions regarding the Fourth Amendment in technology to make those decisions if they’d only have basic competency and understanding about these platforms. And so there are other reasons as well, but that’s just… I know I’ve bounced around a little bit, but those are just some of the things that come to mind for me when I think about why it’s positive for judges to be on social media.

Scott: And I would imagine it probably makes life feel a little bit less monastic.

Stephen: Yes.

Scott: I’ve heard judges describe their job, particularly at the appellate level, as monastic.

Stephen: It is. I mean, it very well can be. And even in our new courthouse, as beautiful as it is, it doesn’t feel as homey as the old place where you could kind of go out into the hallway. We’re like in little pods, you know, at the new judicial center. And so that’s another thing. I do think it’s an outlet for that and it’s an important outlet. And I think, once again, it’s how people are communicating and people that do not realize that are going to have trouble, you know, understanding modern society. If you are not involved in social media, you’re missing out on the primary platform that people are using to communicate. My kids don’t talk that much on the phone. They don’t even text that much. They are primarily using, you know, social media, Snapchat, Instagram, other forms of social media communication to communicate with one another. So, once again, I think it goes back to competency and I think it goes back to, you know, not removing yourself. I mean, Scott, think about some of the oral arguments that you and I’ve listened to at the Supreme Court of the United States when technology comes up, you know, where there’s this lack of understanding among the… With all due respect to the justices, some of the things they say with regard to technology is just frightening. There’s that lack of an under… Now, I know that Justice Kagan, I’ve heard at least, has a Twitter account. She’s following people. And I think that’s great. Even if she’s not participating, I think it’s a good idea for judges to at least get an idea of what’s going on out there in the world.

Scott: Well, that’s the frontier of the Fourth Amendment right now.

Stephen: Exactly. Exactly. And so I do think it’s helpful to at least… I’m on TikTok. I don’t participate on TikTok. I basically use it to monitor my middle child. But even if I didn’t, I would probably still have an account just to monitor it even though that’s really not my thing. But I have an understanding of what TikTok is and what it’s about and how it’s culturally significant. I think… You don’t have to spend hours and hours a day. You can just check it out every once in a while and I think you can get a general sense of what it is and what role it plays in our culture.

Scott: But I’ve noticed also that you will, from time to time, you will take a sabbatical. You will say, “Hey, I’m gonna be away from here for a little bit.” And I know that you’ll leave those outlets from time to time.

Stephen: Right.

Scott: And why… I mean, I think maybe it was Lindt for maybe in one instance. But what are some reasons why you kind of will step back from it from time to time?

Stephen: I think it’s good to do that. I think like right now I’m thinking about taking a sabbatical because I think things are gonna get really, without going into the details of all the things that are going on in our society right now. I think things are in the lead up to the election are going to get pretty nasty. And I do think people that are on social media or public servants, I think there are times where it’s probably best not to do much on social media just because anything you do can trigger a response or it can be misinterpreted. And there are downsides to social media for all public officials, but I think especially judges. And so I do think you have to kind of be careful about, you know, you might post something and you don’t know there’s some event going on or some story that just broke, and it otherwise might be a benign post, but because of some event that you’re not aware of somebody might think you’re being insensitive. And so, you know, I think the next few months are gonna be pretty… And I’ve got the stress coming up as well. So, I probably will either take a sabbatical or reduce, you know, what I’m doing for the next few months just because I think things are gonna be really toxic, unfortunately. I think really what it boils down to is, I don’t if mental health is the right word, but sometimes you’re just not in the space where you got a lot going on in your life. I think it’s okay to step back and say, “I’m gonna take some time off.” I mean, I think, everybody, whether you’re a judge or lawyer or anything else, I think if social media is causing you to be anxious or it’s causing you issues, then it’s probably not a bad idea to step away for a little while.

Scott: When you step away, are you just not producing content or are you not consuming it either?

Stephen: I am not producing it and I’m consuming it less. I probably will still get on because every once in a while I’ll get messages from people that I’m friends with and that’s the only way they have to contact me. And so I’ll check for messages. And sometimes, even if it’s not someone I know, I might get a message from somebody asking for clerkship advice or something like that. So, even when I’m not consuming it as much, I usually check, you know, once or twice a day just to see if there’s anything. If my phone is blowing up, you know, then I might look and see, “Oh, what’s going on here?” Although there is apparently some new documentary where they recommend that you turn off your notifications. And I may end up doing that. It may be a good advice.

Scott: So, for a lawyer who maybe wants to step out into social media to promote their practice or for a judge or another public official that kind of wants to get into social media and use it, you know, as an outlet like you do, what are some best practices and what are some things to avoid?

Stephen: I, obviously, as a judge avoid any kind of partisan commentary. I think I would be careful even if I were not a judge in this day and age to… And I say that as a former offender of this. When I was a lawyer, I did engage in partisan commentary. I think even so it has become so amplified even in the last 5 to 10 years that I would at least be cautious about partisan commentary. And if I did decide to do it, I think you need to make sure that your firm or wherever you’re working is okay with it, that you’re not violating any written or unwritten rules. Now, if you’re a clerk or something like that, there are pretty strict guidelines about that sort of thing. But I just think if you’re trying… If you’re a sole practitioner, you’re trying to build a business, the idea of saying things that are going to alienate prospective clients, that just seems to me to be something you’ve gotta think about whether or not you really think your voice is so important and what you’re saying is so unique that it is worth the potential loss of income or the potential loss of clients. So, that’s something I think every lawyer… So, I’m not saying don’t do it necessarily. I’m saying I’d think long and hard about it. I do think there can be a price to pay.

Scott: It’s a challenging medium because it seems like it’s… I mean, the people who… The companies that create these outlets like Twitter and Facebook, they obviously are in the business of attracting eyeballs. And so conflict attracts eyeballs. It just seems like it’s not a place… Even if you think that you’re gonna engage in healthy, you know, spirited debate, it’s almost like a medium that doesn’t lend itself to it.

Stephen: Unfortunately, I think that’s right and can be right in many cases. So, if you’re gonna engage in that commentary, I think, you at least want to make sure that you don’t allow yourself to be dragged into… In other words if people are coming after you for, you know, a take that’s fairly middle of the road or certainly well within the mainstream of political or legal thought. If you feel compelled to do that, that’s fine. But I think you need to be prepared for criticism. You need to be prepared for nasty criticism. And you need to understand that, if that happens, it’s probably best for you not to respond in kind, especially when a lot of the people leveling this stuff that you are going to be anonymous, you know, they’re gonna be what I refer to as troll accounts. But one of the pieces of advice I give in the article that I recently co-authored with my good friend, Chief Justice Bridget McCormack from the Supreme Court Michigan. One of the things we talked about is don’t engage the trolls. It’s just not… It’s not worth it. But you have to distinguish between a troll and somebody who may be asking a good faith question. So, I tend to err on the side of assuming that the question is being asked in good faith unless it’s obviously not. If somebody comes and says, “I have a hard time navigating your website,” you know, I think maybe that’s a fair criticism. Maybe I need to ask them what the issue is and then tell my tech guys about it. Other questions are obviously bad faith and I think I just ignore those. And so I wouldn’t respond to trolls. I would try to put out content that is substantive and informative. If you are specializing in criminal defense in Georgia, there’s a lot of good accounts like yours and Andrew Fleischmann’s and others where you can become a bit of…known as an expert in that area and you can build up a pretty big following. And that’s a good thing. And I think you guys also do a nice job of, I think, conveying what I call an authentic voice. And I think that’s important too. I mean, you need to be… People need to be able to get a sense that this is a real person with a real voice, not just somebody that is promoting. You know what I mean? It’s…

Scott: Right.

Stephen: Obviously, that’s part of it. I mean, that’s part of it for me. It’s part of it for anybody who’s on social media. Part of it is promotion. And that’s okay. But to me, the promotion part should not be the driving factor. It should be that you benefit from putting out content that people enjoy or that people find informative, if that makes sense.

Scott: Nobody wants to be on the receiving end of a sales pitch, but people like to find value in what they’re viewing and consuming.

Stephen: Right.

Scott: So, I noticed that you are… I mean, I think we’re connected on Facebook too. But I noticed that you tend to be more active on Twitter versus Facebook. What is it about Twitter that you like so much?

Stephen: I think I like Twitter better just because Facebook seems to be… I don’t know what the right word is. Facebook strikes me as a little bit sillier. Twitter certainly has a toxic aspect to it at times, if not all the time. But I guess the way I would say it is I go to Twitter to be informed. I go to Facebook to inform.

Scott: That makes sense.

Stephen: I mean, I inform some on Twitter, but I also go to Twitter to be informed. Facebook is like where I go to kind of tell my family or friends that something’s going on. And while sometimes I’ll do cross-posts, like, the same thing on each medium, there’s a lot that I put on Facebook that I don’t put on Twitter just because it just might seem like oversharing. I try to show some of who I am on Twitter, but I’m probably a little more restrictive about what I put on Twitter in terms of personal things, although I do a decent amount.

Scott: You can more limit your audience on Facebook than you can on Twitter.

Stephen: Right. Right.

Scott: The whole world is on Twitter…

Stephen: Exactly.

Scott: …when you do something on Twitter. And I think there’s something too about the limited number of characters that I like about Twitter.

Stephen: Yeah, me too.

Scott: Yeah. So, tell me… Let’s sort of back up for a second. I don’t think I really introduced you at the beginning of this.

Stephen: That’s all right.

Scott: I know that… And I guess… I had forgotten about this. You actually left after law school, were in private practice for a period of time, and then you left private practice to go and clerk for a federal appellate judge before going back into the private practice. And I know that’s not really a traditional arc. What was it about clerking… Tell me about the story of going and clerking on an appellate court after you’ve been in practice for a bit.

Stephen: It’s a great question. And it certainly is not a traditional arc or certainly wasn’t then. I think it is far more common now, but back then it was virtually unheard of. So, the short story is, is that when I was getting ready to graduate from law school, my wife wanted to come back to Macon and so I’d applied with several Macon law firms, was interviewing and…but I also told, you know, my wife, “Look, Macon is a very…it’s a smaller town. It is a different type of town.” People from Georgia know that Macon is very…it’s just unusual in some ways. And I don’t mean that in a bad way, but I mean, it’s very… I’m trying to think of the word to describe Macon. But it’s very much where people wanna know that you’re from here and that if they’re hiring you that you care…that you wanna be in the community. You’re not just, you know, graduating from Mercer or graduating from wherever, or, you know, coming to Macon until you can get to Atlanta, you know, or something like that. And so, I was looking at Macon and I didn’t go to Mercer. And so I was at a bit of a disadvantage because I’d gone to law school out of state in Mississippi. But I did an interview with a Supreme Court justice with the Mississippi Supreme Court and he actually offered me a clerkship, and I had been in negotiations with the law firm that ultimately ended up being my first firm. And I called him and I said, “Listen, I think you guys are great a firm. My wife wants to come home. But I gotta tell this justice something on Monday and I’m not gonna not take this job unless I have something.” And so I think I called them all out late Friday and they called me back on Saturday afternoon and offered me the job in Macon.

So, I came back to Macon. And I was at that firm for about five…a little over five years, not quite five and a half, maybe five and change. And I never really gotten that out of my system. I really wanted to clerk. I had done pretty well in moot court and I had done well in my appellate classes and felt like that was an area that I really ultimately wanted to practice, if I could. But I just didn’t think I was gonna get there without a clerkship. And so I won’t go into all the events and how it happened, but eventually, my resume got out of the pile with Judge Manion in the Seventh Circuit Court of Appeals. He interviewed me in May of 2001, which was a little bit late, but he had kind of stalled his interviewing because a few of his clerks weren’t sure whether they were gonna leave and go work for the Bush Administration because the presidency had not been called. This was that year. That was in the wake of the 2000 election.

Scott: The year of the hanging chad and the pregnant chad.

Stephen: The year of the hanging chad. So, we were waiting to see how many vacancies he was going to have. And so, long story short, I went up there in May. I accepted it. Judge Manion is a little unusual in that he does not hire people out of law school. So, he wants experienced, more experienced law clerks. So, he might have been one of the few judges in the country that really saw my having been out for five years as an advantage. And so he hired me. I actually started 10 days before September 11. And so that was an interesting time to be a part of the federal government. And he also does this thing where he’ll sometimes ask people to stay on an extra year. He asked me to do that. And I just moved my world from Macon, Georgia to South Bend, Indiana. And so I did that. I did it for two years. It was an amazing time. I learned a tremendous amount from him. He’s an incredible judge, a great American.

I learned a lot from being on the court with judges, you know, like Judge Posner, Judge Easterbrook, Judge Diane Wood, Judge Rovner, Judge Flaum, Judge Cudahy. There were so many great judges and I got to know many of them, obviously, going back and forth to Chicago and just got to see some amazing cases and great lawyers, David Boies, Kenneth Starr, you know, you name it. I saw a lot of some of the very best advocates. So, that was like going back and getting an LLM in appellate advocacy for two years. And so it really made me a better lawyer. And I think I appreciated it more having been out for several years. And so I don’t know that I would recommend it to everybody because I was getting ready to make a partner. They would, you know, go five years and then go back and do a clerkship, but I don’t think it’s unreasonable, you know, to do something for two or three years, and then maybe go do a clerkship. I think in some ways you appreciate it more. And so it was an amazing experience. And quite frankly, I would not be the judge I am today if I hadn’t had that experience.

Scott: What do you think that did for you, that experience?

Stephen: I think it made me a better writer. I think it made me a better legal thinker in terms of really seeing the laws like patchwork, really kind of understanding, you know, having, you know, at that level, you get hit with so many different types of litigation issues, criminal and civil. And you really get to see law done at the very highest level, by really, really smart folks. I learned a lot about court administration from it. I think the Seventh Circuit is one of the best circuits in the country. The clerk of court at that time was phenomenal. So, getting to see some of that behind the scenes, how courts operate. A lot of what we’ve done at the Court of Appeals of Georgia is a direct result of my experience in the federal court system, including some other judges having similar experience in the federal court system of us reforming the Court of Appeals to make it look a lot more like how the 11th Circuit operates. So, I think I benefited greatly from it. It made me a better advocate too because I think it tempered and refined my advocacy in the sense that I started to care more about…less about finding law that supported my position and discovering what the law is, and then kind of filtering that through to an argument that I thought would be persuasive. But becoming more of someone who informs the court that this is what the law is, this is the landscape of the law, and this is how I win in that landscape.

Scott: Now, that almost seems counterintuitive because, you know, it seems like that’s what lawyers generally do is they find cases that help their position. When you got back in the trenches, because I know you came back to Macon and you practiced there for several years before you went to the Georgia Court of Appeals, what really was the difference? How did you advocate for a client in the context of here’s what the law actually is, particularly, if the law was not in favor of your client?

Stephen: I would write to the court in the way that I thought a clerk and judge would find helpful. And if the law was… If it was just flat-out against me, then I would just tell my partner, “Look, I mean, we need to settle this. We need to get out.” If there was as there often is confusion about what the law is or there was some tension in the law, I would acknowledge that tension upfront, and then just simply say, “Look, you’ve got some tension here, you’ve got this case saying this, this case saying this. This is why I think this line of jurisprudence is the better one, the more applicable one, and why it applies here.” And I would try to analogize as best I could to that. And if I could maybe even talk about how, you know, this line that I’m looking at or these two competing or three competing lines of jurisprudence, how this one is similar to a line of jurisprudence in a similar area of the law and makes… And so that’s why this one they ought to try to clean it up. So, when I first started turning in briefs to my senior partner, Tommy James, he looked at me and he said, “This doesn’t read like a brief. It reads like a judicial opinion.”

Scott: Which is a compliment.

Stephen: I said, “I know that.” I said, “I know this may be new for you. Let’s try it my way with…” I had these first two appeals. I was like, “Let’s try it my way with these first two appeals. And if I lose, then we can go back to your way, but let’s try it my way.” He’s like, “Sure.” So, I won my first two appeals. And then after that, he started to understand, you know, the approach. It’s still a form of advocacy, but I think it is a form of advocacy that is stronger because when you start seeing parts of your briefs lifted and put into opinions, you know you’re doing a really good job.

Scott: Well, I heard Justice Thomas speak at an event several years ago. And I was initially taken aback by his answer. And I forget exactly what the question was. It might have been, you know, when you’re looking at amicus briefs, like what do you find most helpful? Or it was something like that. And Clarence Thomas’s response was that he always will turn to the ACLU’s brief because he finds the ACLU’s brief to be helpful to him in deciding a case.

Stephen: Yeah. I mean, they are great writers.

Scott: So, when you came back from the Seventh Circuit, what type of practice were you doing when you came back to Macon? What was a day like?

Stephen: I always tell people… I think what I advertised as when we sent out a little card to the community when I announced I was going back, it was a complex litigation and appellate practice. And really, what it should have said is “weird law” because that’s what I did. I really… It’s like the old Life cereal commercial. “I don’t want to eat it, let Mikey eat it.” And that’s kind of how it was with me and things that came into the firm. Anything that came into the firm that folks just didn’t know anything about, they knew I would want it because I loved being challenged.

So, it might be I had, for example, where these counties were stripping the ad valorem tax-exempt status away from religious homes for the agent. And so I kind of became an expert in that. And I beat back several counties, won several appeals where these counties were trying to take away the tax-exempt status of these homes for the agent, religious homes for the agent. That was a really fascinating area of the law. I had another case that was a non-profit derivative action. And so I became immersed in derivative actions and really enjoyed that.

In fact, since I’ve been on the court, I’ve probably written more… If you look at… There aren’t that many derivative action opinions. I think I’ve written more than half of them now for the Court of Appeals. I mean, just things like that. I was involved in a dispute with the mayor of Macon about his appointments to the Housing Authority which was a really big political event. And there were some really interesting statutory construction issues and the history behind the revision of the statute over the years. I really got to delve deep into the, not only the text of the statute, but the etymology of certain words. And so that was fun as well. But those are the kinds of things I did. I didn’t really do much routine work. In fact, when I left James, Bates I wanna say I had eight cases that I was working on.

Scott: So, you had a very small caseload, but I’m assuming that those eight cases probably they were the equivalent of the amount of work you would have been doing had you had a huge caseload.

Stephen: Right. That’s exactly right. I mean, I was spending a lot of… I was dealing with Beth the company cases. I had some really big reinsurance cases too. We represented Georgia Farm Bureau. And I did a lot of the brief writing and appellate work for Georgia Farm Bureau in coordination with Duke Groover. And there’s some… Insurance, to me, has some really fascinating, you know, construction issues in terms of the language. But I did a lot of appellate practice and a lot of motions practice. I mean, a lot of what I did… And I do try cases. I mean, I’ve probably tried over the span of about my 14-year career minus two that I clerked, so about the 12 years that I was in private practice I probably tried, I wanna say, you know, at least six cases, which considering the kind of work I was doing, mainly for businesses, a lot of those go for years and years and settle. So, I wasn’t trying hundreds and hundreds of cases, but I really wasn’t doing the kind of work that lent itself to that, to having a bunch of jury trials. I was in court all the time arguing before judges. And that’s… I like that better than jury trials. I liked going before judge and arguing. Whether it was the probate court, or whether it was the Supreme Court of Georgia, you know, I liked going and arguing before judges.

Scott: Were you teaming up with trial counsel and you had that role in the case as part of a team?

Stephen: Yes.

Scott: Okay. So, how did that just practically work out?

Stephen: I think sometimes it would be that I would be brought in after the case had concluded. But toward the end, it seemed like more and more I would actually go to hearings and trials where I would sit there and kind of give advice or be part of… Also I would be brought in at the beginning when we were talking kind of global litigation, what I call global litigation strategy. If it’s a big case and, you know, we go in the room and you’ve got the big board and you’re kind of diagramming everything out and, you know, here’s what they’re probably gonna do. Like, that stuff I love and I miss that. Getting a really big, big civil case, multi-million-dollar case and you’re like, “Okay. Here’s the players. Here are the lawyers. Here’s probably what they’re gonna try to do. Here’s the kind of evidence. Here’s what we’re gonna need to get in at the trial level.” And we knew that some of those cases they were gonna go up on appeal, like we knew regardless of who won that we were dealing with a case if it was gonna go up on appeal. So, you just went on and planned for it even if it… It might settle, but you have to… In big cases I think you have to go into them with the idea that it’s ultimately gonna be appeal regardless of who wins.

Scott: And so many lawyers wait until it’s time to do the appeal to think about the appeal.

Stephen: That’s a bad idea.

Scott: Because I get handed records and transcripts in my day to day life that, you know, I wish I had been involved in the case sooner than I was.

Stephen: You just start weeping while you’re reading it. You’re like…

Scott: It’s the worst.

Stephen: Yeah.

Scott: So, for a lawyer or for law firms that want to, you know, think big picture, think about the bigger picture, the potential appellate implications for a case, what is the value for having someone like, you know, in the role that you were in? Looking at it from the perspective of the appellate judge, talk a little bit about how many cases you see where there is there’s a vehicle problem or there are some waiver issue that kind of comes up.

Stephen: It happens all the time. And I think there’s great value. I mean, if you are… Let’s say you are a plaintiff’s lawyer and you’ve got a personal injury case, and it is a big case. A lot of times if you are…you’re a good solid PI lawyer, but even so, you might say, “You know what? This is a really big, like, possibly life-changing case. So, I think I’m gonna call…I mean, name all of the… I mean, I could go and name tons, Robin Clark. I’m gonna call Adam Malone and I’m gonna call all these, you know, big…Carl Reynolds. I’ll call all these great plaintiffs’ lawyers, Darren Penn, all those guys, and say, “I’m gonna bring them in too to help me out because this is a big, big case. And I might have to hire experts and I need somebody to help me, you know, kind of manage the litigation. I need some… I need kind of the apparatus of a firm that handles those really big…” Well, if you’re gonna do that and you’re gonna probably split your contingency with someone like that by bringing them in, doesn’t it make sense to also think about either hiring a firm that has somebody in-house that handles appellate work or picking someone separately and bringing them on that team as well? Because if you don’t spend the time at trial, preserving the things that need to be preserved, there’s a good chance that verdict is…if you get it, it can be reversed. And so let’s say, for example, you’re on a team, Scott, they brought in you because you do criminal and civil work and they bring you in, and you’re there at trial and you see those plaintiffs’ lawyers starting to get a little bit aggressive with jury charges, what are you gonna tell them?

Scott: Well, first of all, you’re gonna be in that position where that’s the kind of thing you’re thinking about. And you’re gonna say to the trial team, “Look, let’s research this issue because the judge may be listening to them because they’re talking the loudest or they’re talking the most. And let’s draft a motion in limine or let’s draft a motion that sort of says, “Judge, we object to this jury charge. We don’t think that this is proper. Here’s some case law as to why. And we think you’re probably gonna get reversed if you charge this way.”

Stephen: Right. And if your team is getting too aggressive, you might say to them, “Hey, guys…”

Scott: Let’s pull back.

Stephen: Do you wanna know the last five verdicts of the Court of Appeals that have been reversed, have been based on jury charges, overly aggressive jury… I mean, that’s the problem. I mean, that’s the thing an appellate lawyer knows because an appellate lawyer, you know, even a very good PI lawyer, they may only be involved in a handful of appeals over the years, but someone like you or someone like Mike Kerry or Darren Summerville, or whoever else that is doing this kind of work, you guys are reading these things and you’re reading almost everything that comes out of our court, God bless you, and you start seeing patterns. And not everybody is gonna see those patterns. And so you’re the one that can stop in the middle of the trial and say, “Whoa, guys,” or even before then, “Hey, no. When you’re strategizing, we can’t do that because that’s gonna leave us vulnerable and getting appeal. We’ve got to be careful about how we… So, we need to do this instead.” Or, “Let’s not fight every battle. It doesn’t matter. The evidence is in our favor. Let’s don’t get aggressive on a jury charge when we’ve got the evidence. We know we can get a verdict with this evidence. Jury charges are of limited value. Don’t go to the mattresses on something that we can get reversed on.” I mean, those are the kinds of things we’re having an appellate lawyer in on that big, big case. Now, can you justify that on a $25,000 case? No, you can’t. But in the big cases, absolutely. You should.

Scott: Well, and just because the judge is with you and will do the thing that you’re asking the judge to do doesn’t mean you should do it.

Stephen: That’s exactly right. As the words flew by.

Scott: And having a lawyer there that can advise you that way is pretty important. Even if the lead counsel on the case knows the law really well, probably, that lawyer is thinking about 10 other things that aren’t the appeal.

Stephen: The other thing that appellate lawyers, I think, do nicely, is that we are instinctively or certainly trained after many years to be dispassionate. Now, every lawyer should be dispassionate and not get emotionally invested in cases, but you and I both know that it’s very hard for people that have tried cases to sometimes be objective about what happened below. And I think having an appellate lawyer there during trial to kind of throw cold water on somebody and say, “Hey, I get that you’re upset, but we’re not doing our client any favor by doing what you want or saying what you wanna say here or doing what you wanna do here.” I think that’s just the way appellate lawyers are built. And so I think it’s good to have somebody like that around.

Scott: I think too, like, you know, even the cases that don’t go to trial, I read my share of summary judgment cases where there are, you know, summary judgment cases with written opinions. And, you know, just like I find myself looking at trial transcripts and I’m just miserable cause I just see things that were waived or motions that weren’t filed that could have made a difference. Sometimes when I’m reading summary judgment opinions and I’ve been involved, a lawyer brought me in a couple of years ago to talk about late stage of an appeal to help with a motion for reconsideration of an adverse summary judgment. I’ve seen a lot of summary judgment opinions, maybe opportunities that were missed where maybe things could have been said in depositions. I mean, there might have been evidence of a factual dispute that could have been injected into the record that maybe they weren’t there.

Stephen: I agree. I agree. And I think having an appellate lawyer, once again, I think, depending on the case and whether you can bring someone in or whether the case is worth having somebody like that, it helps to have someone who has a thorough knowledge of the law. And you’ve got plaintiffs’ lawyers who specialize in premises liability cases, right? And so they know, they read every premises liability case that comes out of the Court of Appeals and Supreme Court of Georgia. And the truth is, you know, not every lawyer is gonna have the time to do that, even if they handle those types of cases. So, having somebody that can say at the outset of litigation, “This is what we need to do. This is what we need to say. This is the kind of discovery. Here’s the sort of the way we need to craft the affidavit from our client about what happened at the grocery store. Here’s the way… Here are the things that trip people up in these cases and where the Court of Appeals ends up reversing in favor of, you know, the corporate defendant, Kroger, you know, Home Depot, whatever.” So, I think it is important.

And like a lot of those groceries slip and fall cases, some of those involve millions of dollars. And so I just think it makes sense, at the very least, to consult, to hire someone who does specialize in appellate law, especially in that particular area, and pay them a few hours at the outset of the case and maybe say, “Okay. Here’s what happened. What sort of things do I need to get my client?” I need to make sure that I have them, you know, not manufacturing, obviously, what they say, but, I mean, here are the important things. Don’t leave out these important things when they tell you their story. These are the kinds of things that are gonna help you survive summary judgment, so don’t leave that out of your client’s narrative. If they tell you what happened, it’s important to have all this factual information in their affidavit. It’s important for them, you know, when they’re in their deposition, to talk about what happened and to talk about these things. Those are the kinds of things you can tell people upfront, and then they can bring you in on the backend. If there is a summary judgment ran, they need help with the appeal or they need… Once you look at the brief, there’s all sorts of things you can do with someone. And I just think it makes sense in those cases you invest. Right? I mean, that’s what you’re doing. You’re investing in those cases, you take them on contingency, and I just think it makes some sense to pay some money upfront to talk to somebody whose job it is to know that area of the law.

Scott: Well, if you open a slip and fall case, you better be prepared for the summary judgment motion because there will be a summary judgment motion on a slip and fall.

Stephen: Yeah, it’s coming.

Scott: And then it’ll probably be hard to survive if you’re gonna open that case up because I think that seems like a very tricky, hard area of the law from the plaintiff’s perspective.

Stephen: And there’s all sorts of like… I mean, there’s all sorts of, like, sub-issues like the distraction doctrine. I had a case involving that in a Home Depot where I wrote a dissent that it should go to a trial. Does that person that… Do they know about the distraction doctrine? Maybe they do. Maybe they don’t. But those are the kinds of things that you would know. You would say to them, “Is there anything we can talk about? Is there any of you might talk to your client when they came into the grocery store that could have caused them not to see? Or did they tell them? Did they direct them to, like, come this way? And that’s the reason…” I mean, there’s all sorts of things that you can do to enquire that by knowing what facts are important, the surviving summary judgment, you can ask that person to tell you things and they may not even remember that unless somebody actually asked the question and triggers that part of their memory.

Scott: And it seems like, you know, you mentioned it earlier too in the context of reinsurance cases. But insurance coverage issues are about as complex as it gets in the law.

Stephen: Yeah.

Scott: And that’s kind of what most of these things turn on is the amount of coverage and trying to figure out a theory of coverage can be kind of life or death to these cases as well.

Stephen: Absolutely.

Scott: Well, so, tell me a little bit about what’s ahead for the Court of Appeals as I’m assuming… I know that the emergency order is gonna be modified. I think grand juries are about to start back up. But when do you think the court will start back hearing oral arguments live?

Stephen: It’s a great question. I don’t know. I know that we are doing Zoom arguments. I don’t if this is public, but I don’t think anybody would care about me sharing it. I know that we are doing Zoom arguments through January. At some point in the next month or so I think we’re gonna determine, you know, whether or not we should start doing in-person arguments again. I’m only speaking for myself right now. The more I think about it and the way our courtroom is constructed, I think what I would like to do is ask the parties whether, you know, if we grant or like say we’ve got oral arguments coming up in February, I think what I would like to do is to have the clerk call the parties and say, “Are you interested in an in-person argument?” And if both sides say, yes, there’s enough room in that courtroom to socially distance. The judges and the parties. So, I think it’s just a question of, you know, the comfort level that folks have. I would real… I think it’s important to resume them at some point just symbolically. I always go. I missed one. There was one argument where none of us were in the courtroom, and that was early on during the pandemic. But since then, that didn’t sit well with me and I didn’t feel well that day and we were just at the beginning of it. But since then, I’ve showed up and been in the courtroom for every oral argument. And I think it’s important to do that to be there symbolically, because technically I think people can still come. I don’t think people are coming because, obviously, for obvious reasons, but there’s something to me important about me being in that courtroom and presiding from the actual courtroom. So, I hope we’re gonna resume it. But I think we also… Just my opinion. I think we ought to respect if there’s a lawyer that just isn’t comfortable or is high risk and wants to argue it, I think we ought to make those accommodations.

Scott: I’ve been to court some, and, you know, for motions or for oral argument, I don’t think it’s as dangerous as it would be to summon jurors or witnesses or…

Stephen: Right.

Scott: That kind of thing. So, I mean, I think over time, it probably could work depending upon the lawyers and the judges’ level of comfort.

Stephen: Right. That’s just me. We’re gonna have that debate. But first and foremost, for me, is gonna be the safety of everybody. I mean, that matters more than my preference for in-person arguments.

Scott: Well, Judge, I really appreciate you taking the time to be on my fledgling podcast here. I really appreciate it.

Stephen: Listen, I’m happy to do it. This is you… You’re my co-teacher for Georgia Appellate Practice at Mercer. We didn’t even talk about that, but you and I have a good time with, you know, teaching those fine students at Mercer. And I couldn’t do that class without you.

Scott: I appreciate that. And I really love the guests that we have come in. I mean, I think every time we teach that I’m as much a student in that class as I am one of the teachers in that class and it’s a great experience for the kids, for sure.

Stephen: Absolutely. I’m looking forward to it this spring.

Scott: Is there anything else that I haven’t asked you about that you’d like to tell the listeners?

Stephen: I don’t think so. I think that’s about it. I’ve enjoyed being on your show. And I know it’s gonna do great. And I look forward to coming back some other time.

Scott: Well, thank you so much. I really, really appreciate it.

Stephen: Thanks, Scott.

Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com and please rate, review, and subscribe to this show wherever you get your audio content.

 

Episode Synopsis: As a jury consultant for some of the nation’s most noted cases, including the Unabomber and the Boston Marathon bombings, attorney Denise de La Rue explores what lawyers can do to ensure they’re picking the best juries possible to represent their client’s most compelling case. Denise also shares how she uses focus groups and mock trials to prepare a case for trial and to win more favorable results in negotiations, as well as how to best prepare a witness and why pre-trial research can greatly impact the strategies used in court.

Podcast Transcript: The following is a transcript of Episode 1 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Denise: I’ve done post-trial interviews. Usually, that’s when things did not go well for whoever’s hiring me to go back and talk to the jurors after the fact. And you’d be surprised at the times I’ve had a juror say to me, you know, “I don’t know why the attorneys didn’t ask me that. I kept thinking they would, I kept waiting for them to ask me and they never did. If they’d only asked, they would have known, like, I was not gonna be a good juror for them.”

Scott: That’s Denise de La Rue, trial strategist and jury consultant. Here, she’s sharing what it’s like to discover too late in the game that you were not thorough enough in jury selection, that you didn’t ask enough questions, or you didn’t ask the right question to discover the juror or jurors who made it onto the panel who were not the right jurors for your case. In this conversation, Denise and I discuss how jury consultants can transform what it’s like to practice law in trial, what it’s like to engage in litigation, and how jury consultants can change the game for you in a night or day sort of way. And even if you have a trial where there’s no budget, or there isn’t sufficient budget to use a jury consultant, how you can take some of the tools from the jury consultants toolbox to become more intentional in terms of choosing and selecting the right themes, thinking about jurors, preparing for trial, selecting your juror and executing when you get to trial.

My name is Scott Key, and you’re listening to “The Advocates Key” podcast, a show that explores the art and science of litigation with some of the nation’s top thinkers. For more information and content like this, go to scottkeylaw.com. All right. So, I’m joined with Denise de La Rue, I never know if I’m pronouncing your name right.

Denise: Yeah, perfect.

Scott: All right, and this is my first podcast. And so, Denise, you were the first person I thought of.

Denise: I am so excited. I loved…when you said that I was just thrilled. I’m not sure I deserve the honor but I’m delighted to be here.

Scott: So, introduce yourself, tell the listeners who you are and a little bit about what you do. I have a couple of introductory things but I thought I’d let you introduce yourself first.

Denise: Okay, well, I’m a jury and trial consultant. I am actually an attorney, but I have strictly a consulting practice. And that can mean different things depending on the type of practice a trial consultant has. But the major areas that I focus on are assisting attorneys with jury selection, doing pre-trial research, such as focus groups, or mock trials, and then preparing witnesses to testify for trial or deposition. I work in civil and criminal cases, and I go wherever the cases are throughout the United States from Honolulu to Miami, sort of my consulting area. And I have to say what I do is in no way, shape, or form near what the show “Bull” portrays. That’s just not the reality.

Scott: What about the movie “The Runaway Jury?”

Denise: Yeah, you know, it’s been a while, honestly, since I’ve seen that or read the book but it’s…you know, fiction is…If you were to watch in real-time what I do, it would not make for necessarily good television. So, everything is dramatized, we never have juror identities soon enough to do the kind of things that they showed in “Runaway Jury” nor would people have the resources. So, there may be a kernel of truth, as they say, I’m not sure “Bull” even has a kernel. But yeah, pretty much that’s not reality.

Scott: So, going back, I think you majored in psychology when you were an undergrad and then you went to law school at Georgia State?

Denise: Yeah, I did. I majored in psychology. And then I was doing some graduate work, I thought that was the direction I was going to go. And then I happened upon this wonderful world of jury consultants and decided, actually, that’s what I wanted to do. And I realized I could get a JD faster than a Ph.D. with no dissertation. So, I jumped ship there and went to law school, always with the idea of having a consulting practice though.

Scott: So, you went to law school with the intent that you were gonna become a consultant or a jury consultant when you got out.

Denise: And in fact, I was doing jury consulting while I was in law school, which made for challenging time management, but yes.

Scott: Did you do mock trial and moot court and things like that when you were in law school?

Denise: I did not have the time because I was doing it in real life. Yeah. So, no, I didn’t.

Scott: So, at what point did you know you were gonna go in that direction? Was this in undergrad that you figured out this was something that you wanted to do?

Denise: No, actually, I was in undergraduate school finishing up and I was also working as an actor and a writer, having nothing to do…I had been on jury duty once, but that was my only experience with the courtroom. And I got hired to be an actress at this program I know you’re familiar with called the National Criminal Defense College and for years was in Macon, Geordia at Mercer Law School, hosted there. And as a part of the continuing education, they hire actors to play witnesses being cross-examined or to play a client in a client interview setting. So, I went down did that and it just rocked my world, it just opened up a whole new world for me. And through that, I met a jury consultant, Kat Bennett, who sadly is no longer with us. But in talking to her decided, well, I think this may be what I wanna do.

Scott: Oh, got you.

Denise: So, I started volunteering to help public defenders and I found out yeah, this is what I want to do. And by that time, I knew some lawyers who were on faculty there and asked, could I volunteer to help them with a case? They were kind enough to say yes and then they started paying me a little money and referring me to other people and here we are, 25 years later.

Scott: You also were very instrumental in a mock trial, even right down to clothes that a person who’s accused might wear at counsel table. I know that you gave some good advice there in terms of come out of the…you know, maybe dial down the power suits and wear cardigans or sweater vests. And I think you were kind of instrumental even at that level.

Denise: So, if it’s okay, I’m gonna talk generically instead of about a particular case, but my memory is not different than yours. So, about the clothing aspect, do you wanna start there or [crosstalk 00:07:00.475]?

Scott: Sure, absolutely.

Denise: Yeah, I think, and, you know, what I hope people understand is, I would never be a part of anything that was to say let’s costume your client or make your client look like somebody they’re not because that just doesn’t work. Nobody’s trying to pull one over on the jury or the public or anything else by “cleaning somebody up” other than we would all clean ourselves up, right? If we were gonna be a witness in court, you and I wouldn’t go to court dressed like we probably are right now. So, of course, you know, it’s important to think about how you dress is appropriate for a proceeding.

But I think attorneys too often want to dress their client, honestly, like an attorney, you know, everybody has to wear a suit and tie because that’s what attorneys wear or, you know, whatever the equivalent would be, there’s a little more flexibility with women probably. But a lot of times clients aren’t used to wearing suits and ties, or that’s just not how they’re the most comfortable. And we don’t want people to perceive them as one of the trial team. So, if someone is more comfortable in a cardigan and a pullover sweater and a tie or, you know, a female client doesn’t need to wear a suit like the attorneys do then, you know, that’s just sort of what I try to do is give people permission to dress in a way that’s comfortable, that’s authentic to who they are, and also shows, obviously, respect for their proceeding.

Scott: So, one thing is we tend to think that the way you…we being lawyers think that the way that you dress professionally in court is the way lawyers dress in court. And so, we tend to wanna dress up our clients like they’re also lawyers.

Denise: Yeah, exactly.

Scott: So, I hear a lot of attorneys say, or particularly older attorneys that are kind of suspicious of jury consultants and, you know, they seem to think that they have this sixth sense for, you know, what works and what doesn’t. What does a jury consultant add to a civil or criminal trial that perhaps just lawyers, you know, even the best of lawyers wouldn’t necessarily bring to the table?

Denise: Well, I will say if an attorney with a lot of experience or whatever age doesn’t think they need a jury consultant then I’m not gonna try to convince them that they do. If they’re doing something that works for them then, you know, God bless them and continued success. But I think what attorneys I work with would say is that it always helps to have another set of eyes and ears. And you mentioned maybe my thoughts about going a little bit beyond the answer that the juror gives. I think that when you have somebody that is honestly a little more in-tune to listening than most attorneys are, that can be helpful. You know, I’m sitting there not really worried about motions and lemony that I have to argue as soon as the jury is picked or what my opening statement is gonna be, I’m really they’re focusing on what’s going on. And so, I think that’s helpful to have somebody who’s just dedicated to what’s happening in the moment, as we like to say, can be a little more mindful about what’s happening.

I do like to listen, and I think, not to stereotype but that’s not necessarily the strongest skill of a lot of attorneys. And, you know, I like to say, like, the three rules of real estate are location, location, location. The three rules of jury selection are listen, listen, listen. If you ask a juror what they think or feel about something, unless they’re just really gaming you to try to get on or off the jury, which isn’t most of the time, they will tell you. And if you’re curious about one answer, and don’t just check off the box that I got the jurur to answer that question now I can move on and follow up, they’ll really tell you some more.

I’ve done post-trial interviews. Usually, that’s when things did not go well for whoever’s hiring me to go back and talk to the jurors after the fact. And you’d be surprised at the times I’ve had a juror say to me, “I don’t know why the attorneys didn’t ask me that. I kept thinking they would, I kept waiting for them to ask me and they never did. If they’d only asked they would have known, like, I was not gonna be a good juror for them.” So I hope that trials that I work on if somebody were to go behind us and do post-trial interviews, we wouldn’t hear that. I hope we do a good job to the extent we’re allowed for really trying to find out what the jurors think and feel about.

Scott: Well, I’ve just noticed that in jury selection lawyers often tend to come in with their list of questions. And they just ask their questions and, kind of, stumble through it and it seems awkward. And it just seems like if you get that juror who does indicate some potential problems, it’s like the…you know, anytime I’ve heard you speak or heard or other jury consultants speak, I think I go back and I try to, sort of, incorporate some of that just when I pick a jury. And I found that the judges hate this stuff. I mean, judges hate it when you insulate a jury in advance from the rehabilitation questions that are coming.

Denise: Yeah, sure. So, I think that judges and attorneys are used to like, let’s get it done, get a jury in the box. So, a lot of judges, when you talk about rehabilitating, they want a juror to say they can be those magic words of fair and impartial. So, the Georgia Supreme Court, unlike a lot of other states and federal jurisdictions have said that those magic words are not sufficient. And it really admonished opposing counsel and judges from trying to rehabilitate the juror, you know, let’s believe what they’re saying. And for some reason, a lot of there listen to summaries of both sides of the case, they may see some video testimony if there has been any in the trial thus far, video depositions or things like that. Some people use actors to play witnesses or clients, I do not do that. And then jurors split into smaller groups for deliberations and they actually deliberate the case for a time and try to reach a verdict.

Scott: In a mock trial setting, is it typical or is that a place to perhaps get the defendant or maybe a key party witness some experience testifying? Can that be a component of that as well?

Denise: Sure, they could get experience. I think it’s more, I wouldn’t call them live to testify, you could put them on videotape, I think it’s a better tool to judge reaction to a person’s demeanor. And probably experienced testifying comes in a different setting where you can just roleplay with that for a longer period of time. But it clearly lets you get a look at what people who don’t know the client or don’t know a key witness think about him or her. And sometimes they come up with things that gosh, we just never ever, ever would have thought of. So, you know, that can be very helpful.

Scott: Well, I’ve had that experience after a trial. You know, like, win or lose I’ve had that experience where the case was decided on something that I didn’t think…I mean, I didn’t think about or I thought was a minor point. And that’s always frightening. I mean, even if you win, it’s frightening to find out that a case turned on something that you didn’t even really [inaudible 00:14:53] about or talk about in your opening and closing. You know, jurors will fixate on something out of the blue. And I find that cases where I’ve…even if I’ve informally focus grouped it, if I’ve gotten, you know, some colleagues together, you know, the budget wasn’t there for it, and I’ve kind of gone through it a little bit, I find that it cuts down on that factor a little bit.

Denise: Definitely. I mean, we can sit and brainstorm a case for, you know, six weeks, and not come up with questions that real people who aren’t lawyers or don’t work with lawyers have because we’re just looking at it from a very, very, very different perspective. No matter how hard we try, we can’t think like people who haven’t been in a courtroom before.

Scott: So, okay. So, here’s kind of a theory I have and people think I’m kidding when I say this, and this is gonna sound like it’s political commentary but it’s not political commentary. I mean, there may be some implicit political commentary in this. One thing, if there is a silver lining to the last four years of national electoral politics, and the things that have worked for Trump, and those who kind of are falling in line with Trump and the Republican Party,I’ve gotten the sense or…I’ve tried to say this to colleagues, and they just look at me quizzically. The takeaway I’ve gotten from national politics in the past few years is, maybe I should be trying more cases. Because it seems like the jurors that I fear the most being on my jury seems like they could just believe just about anything if you branded it, or messaged it, or themed it in the right way.

Denise: I think that people believe things that are congruent with what they already believe easiest. And I think that people don’t necessarily believe as much of the kind of rhetoric I think you’re speaking of as they suspend their disbelief or they don’t analyze it if the rest of the message is something that they like. So, I understand the dynamic you’re talking about but I don’t think that it necessarily applies to the courtroom where jurors are skeptical of lawyers, and we don’t have anything to offer them or give them.

Scott: Or to the extent that it does, I guess that would work in the favor of the prosecution in a criminal case or in the favor of the corporation in a civil case.

Denise: Depends on who the defendant and who the alleged victim is, right?

Scott: Mm-hmm.

Denise: Well, I think that it would be very different depending on the political bent you’re talking about. If you’re defending a white police officer in an officer-involved shooting versus, you know, an African-American defendant accused of shooting a white police officer. In each of those cases, there was a defendant. Is the defendant a white police officer or an African-American, 19-year-old citizen wearing a hoodie?

Scott: So, the politics could play different ways depending upon who the defendant is and what the defendant’s motives were.

Denise: Sure. Yeah, exactly.

Scott: All right. So, you mentioned a minute ago that part of what you do is you teach at the National Criminal Defense College. What is the National Criminal Defense College? And what role do you play in that?

Denise: Well, sadly, I haven’t…with other obligations, I haven’t gotten to teach in a number of years but I look forward to getting back. The National Criminal Defense College is a continuing legal education program for criminal defense lawyers, and they have different shorter programs during the year, but they come for a two-week session in the summer. My experience is largely public defenders, but certainly also lawyers in private practice. And they just are there to hone their courtroom skills from getting a case file and looking at the facts and the witnesses and finding a thematic approach to it to picking a jury, cross-examining witnesses, putting on their client for direct closing arguments. It’s a remarkable program that brings some of the humanity back into the lawyers’ minds and ethos.

Scott: And these are people, these are not law students. These are people who have been practicing for…

Denise: Oh, definitely. There may be some people who’ve only been at it a year or two and there are other people who’ve been at it 20 years. There’s always, you know, always room to think about something differently or get better. We know that.

Scott: And then when you teach there, do you…I’m assuming you’re focused in the area of jury selection.

Denise: Not only, that certainly, but also just the communications aspect of anything, of the cross-examination, just helping people to look at it with a thematic approach and thinking about what real people want to know, what would make this compelling to a jury. So it’s really probably more of a jury focus to all aspects of the trial.

Scott: Okay, so you’re taking people that potentially have been practicing for a while, and they’ve gone off to be in this program. I feel like in law school, if you have the opportunity to do mock trial or moot court, I feel like there you get a little bit…you know, there’s a little bit of focus on the idea of a theme or theory of the case. And it seems like that kind of goes away. You know, and you don’t really get a lot of that in CLEs. And I even think back to, I’ve thought that I’ve gotten some exposure to themes and theories of the case when I was in law school. But I think probably there’s a lot of focus on maybe developing catchphrases. Like, this is a case about, you know…if you watch high school mock trial, “This is a case about too hot to handle, too cold to hold. I’m Scott Key and along with co-counselor Denise De la Rue.”

Denise: Oh, I hate that. When I used to coach some mock trials, I would say, “Please don’t do that.” And they would say, “We have to, you know, it’s a format we were given.” Yeah.

Scott: So what mistakes or what challenges do you see with lawyers that kind of come through NCDC? Coming in, what are some of the challenges or some of the mistakes you see in a jury-focused approach or the notion of theories or themes of the case?

Denise: Well, you know, it’s just damn hard not to think like a lawyer. Right? So, if everybody could try to think about the case, once you…you got to, of course, identify the legal issues and see what kind of motions you need to…I mean, your brilliance, right, what kind of motions you need to file and argue and what kind of evidence you need to try to keep out or get in, all that’s crucial. But after that, with what you’re left with, not just jurors, people in our everyday lives, we learn and experience the world in terms of stories. And a story doesn’t mean I’m gonna make something up and try to fool you with it. It means that’s the way that we incorporate information. What does this remind me of, what in my life has been similar to this that I can, sort of, round out the details to figure out why this happened? Right?

We always do it. Your child has a friend who makes up a lie and that’s all we know, right? The kid made up a lie that they had a baby in high school when they really didn’t. Okay, what are we immediately gonna do? You and I are going to say, “Gee, why would that kid do that?” And we’re bringing on, you know, if nobody tells me why then I’m making up my own reasons from somebody else I knew who did something similar, and you may have a different story and that’s how we make sense of things. So, being cognizant of that, and realizing that you really do need a compelling story, or narrative may be the word that’s popular now, to tell the jury in order to understand why we’re in court today, whether it’s civil or criminal, it’s just as important.

Scott: Jurors don’t care about the elements of truth.

Denise: Could care less and will…

Scott: Or the jury instructions.

Denise: No, no. And they’ll only really pay attention to them if they’re motivated to, quite honestly. The way that you were talking earlier about, sort of, rationalization that we see going on today, politically, it happens in the jury room. They’re motivated to reach a certain decision, which is what they think is justice. They’re really trying to do the right thing, but the right thing as they understand it. So, yeah, it’s not as important, they will completely disregard an element of an offense, or add an additional one if they think it makes sense in the world. So, yeah, it’s just hard to make the rest of it equally as important or maybe more important once you find yourself in the courtroom.

Scott: So, what are some things you do to teach lawyers to get better at this stuff?

Denise: I guess just continuing to ask questions and following my own curiosity, you know, I by nature I’m curious, and I taught law school for a little bit, a class, as an adjunct professor at Georgia State. And I would just tell my students to please be curious and follow that and see where it leads because chances are the person or the thing that you’re curious about as a person, not as a lawyer, is going to lead you to where other jurors find the heart of the case.

Scott: Well, and even clients want you to do that. I mean, really, clients don’t care about the elements. You know, clients want…Or I even think about when I go to the doctor, you know, the doctor is taking a history. You know, doctor’s perspective is he’s getting a history for the chart and what I think I’m doing is not giving you a history, I’m telling you why I’m hurting or I’m trying you what’s wrong, and it’s usually in the form of a story.

Denise: Yeah, absolutely. And there have been times probably with all of us that when the doctor is ready to leave the room, having asked all of her questions or his questions, we say, “Ooh, ooh, one…there’s something else I really wanted to say,” you know. And so, you know, that’s something we can learn with our clients, too, is be sure to throw that out, what else? What have you not told me? You know, that’s one thing I’ll always say to clients when I’m preparing them for trial or deposition is, or any witness, what is the one thing that you hope they don’t ask?

Scott: Oh, that’s a good question.

Denise: Because we can…And sometimes it’s something that they…sometimes it’s like, oh, something we really needed to know. Sometimes it’s something they never would have asked, but the witness is just worried about it. But you find out a lot with those kinds of informations. Or, what’s a question you’ve thought about asking me, but you decided not to, go ahead and ask me that now. Or, what’s something I haven’t asked you that I probably should? You know, those kinds of things.

Scott: Are there questions like that, that you can ask in jury selection?

Denise: Yeah, sure.

Scott: What are some examples?

Denise: Are any of you sitting here with something that you think I really need to know and I just haven’t asked the right question, or I haven’t asked the question right? Is there anything else you think that any of the parties of the court would like to know about you as it might impact your jury service or affect the case or you just thought about while you’re sitting here? Those kinds of catch-all questions, and not everybody’s gonna speak about it. But the few that do, it’s usually manna from heaven, it’s usually like holy moly, you know, how did I…what if I hadn’t asked that?

Scott: That’s the juror that probably would have told you after…

Denise: Yeah. And the post-trial interview, right.

Scott: After you’ve lost.

Denise: Right, exactly.

Scott: You should have asked me this question.

Denise: If only you’d asked me that. Yeah.

Scott: Okay, so let’s…I’ll just kind of ask you…so just kind of covering the spectrum here. If there’s a case where there’s a good bit of, you know, the verdict is potentially huge and you do have the budget to do everything you can in terms of, you know, preparation for your jury, focus group, mock trial, having a jury consultant present, what are the range of things that a lawyer could do to, sort of, maximize his potential with a trial jury?

Denise: Well, so this doesn’t happen nearly as often. But depending on if there is press about the case, or there are issues about the case that impacts community, let’s say, if it involves something environmental, if there have been, you know, a certain part of town, utility company charged with dumping waste somewhere that’s impacted the community, something like that, even if you’re not trying for a change of venue, then sometimes people will do community surveys where you actually do a telephone survey with, you know, 200, 300, 400 people in a community to, sort of, see where the venue stands on certain issues. So, that’s something that’s definitely on the higher budget side of things but that can be done. Focus groups, like we talked about, more than one, exploring issues as well as, sort of, broad-brush facts about the case, mock trials, as we’ve said. Working with, sort of, more theme development, working with witnesses and clients before they testify.

Sometimes in cases if the issues are particularly sensitive or if there’s a lot of press about the case, you might get a juror questionnaire so that you can actually start to learn about what jurors think in more detail before you see them in court. Now, there’s availability, if you get a jury list and time to do a lot of social media research. In fact, you may have read the opinion in United States versus Tsarnaev, the Boston Marathon bombing. The sentence in that case just got reversed, in part because of the judge not allowing follow-up on some social media issues. Sometimes people have a shadow jury, I don’t much like this, but they’ll have three or four or five or six people sitting in court watching the entire proceeding. And they’re debriefed at the end of each day to say, what did you think? And that information goes back to the attorneys. That’s pretty elaborate but it does happen.

Scott: Okay, so say more about that. So, I’ve never heard of this before. So, you would put people in the courtroom. And are these like a cross-section of people?

Denise: Yeah. And ideally, you can’t do it exactly, you know, you try to get, let’s just say, four to six people that would somehow resemble the diversity of the people that are actually on the jury. So, you know, you wouldn’t get four Ph.D.s if you have a mostly blue-collar jury, you’d try to get people whose perspectives would, sort of, match that, maybe generally demographically match it. And they sit in court, they don’t know which side they’re working for because that could bias their opinion. So, you have somebody, kind of, managing them. They, you know, listen to what’s going on. And then at the end of the day, they’re debriefed by that person on whatever issues the attorney paying for it thinks are important. And that information goes back to the attorney. So, in real-time, they might alter what they’re doing a little bit based on what these people report.

Scott: No, why don’t you love the idea of that?

Denise: I don’t love the idea because in order for it to work…you know, as you well know, there are times in court where a lot goes on out of the jury’s presence. So…

Scott: And they may see some of that.

Denise: Yeah, they either have to see and hear it, which means they no longer now have the perspective of the jury. Or each time the jury leaves the courtroom…

Scott: They have to leave.

Denise: …they have to leave.

Scott: And you have to manage that or somebody…

Denise: Yeah. And it doesn’t take too long before people start wondering, even the jurors, who are these six people who get up and leave every time we do and come back in?

Scott: And it might make you appear a little slick.

Denise: Yeah. So, I think it becomes…you know, can become more of a spectacle. Of course, I’d like to say, just hire me to sit there, which I do sometimes. I mean, sometimes this is called, like, courtroom monitoring, that’s another thing. I will sit throughout a trial, sometimes a counsel table, sometimes in the gallery, even though, you know, obviously, I know what’s coming or that kind of thing. But it at least gives another perspective besides one strictly of the lawyer. But, you know, a lot of lawyers like that shadow jury thing, and I agree it has an appeal to it, obviously. But I think it can just really present more problems than sometimes it’s worth.

Scott: So, let me ask it the other way. So, that was the if you have the budget, these are things you can do. Suppose you don’t, suppose that you are…this is just a basic, you know, this is a jury trial, it’s very important to your client. But, you know, you don’t really have the budget for much of anything, you really can’t get a professional to help you with a focus group. The money’s not there for a jury consultant. But you really wanna try to do everything you can for your client, preparing for a case and being mindful of the jury during the case. What are some things you could do to sort of replicate focus grouping your themes or having a mock trial? What are some things you can do if you don’t have a lot of money?

Denise: Well, you know, obviously, it’s challenging, but it’s amazing that people will work for pizza, people love to eat, they love free food. So, if you wanna have an informal focus group on your own, and you really don’t have the funds, then I would try to get together a group of non-lawyers, preferably who don’t know you, who don’t know the lawyer. So, you might do that by calling half a dozen or 10 friends and saying, “Can you send me somebody who’s not a lawyer? It can be another soccer mom you know, or soccer dad, or it can be the person that cuts your hair, or takes care of your lawn, or somebody that you work with at your offic that’s like one or two steps removed. Would they be willing to come to, you know, my office for two or three hours and eat pizza and get a $5 Starbucks gift card or something like that?” And get them together and talk through your case. I mean, is it perfect? No, but are you gonna learn something? You know, absolutely, you are. So, that’s one thing you can do.

And another thing for help in the courtroom, it amazes me how often people go to court, lawyers go to court with no help. And there’s no way that you can take notes, engage with a juror, you know, and do all that stuff by yourself. So, students, whether it be in law school, or maybe even better, you know, sociology or psychology, would think that it’s really cool to go sit in a courtroom at counsel table, if possible, and just be there to take notes, make observations and, you know, that sort of thing to help you out. So, I think it’s great to give students that experience and also get yourself some free help. And I think those are a couple of things I always recommend.

Scott: And so, you mentioned Tsarnaev. Am I pronouncing that right?

Denise: Tsarnaev.

Scott: That’s the Boston Marathon case. And so, I think you actually worked on that case.

Denise: I did.

Scott: And you’ve worked on several cases with Judy Clark, I think, from reading up. I know that from what I’ve read of her, and I don’t know her personally, I know that one of the things that she does well, from what I’ve read, is she really gets to know the client very well.

Denise: Oh, yeah.

Scott: And spends, you know, just a tremendous amount of time. It seems like spending time with and getting to know the client seems like that’s as big a component to her preparation for trial as the legal research and the courtroom stuff. As a consultant, and again, I’m not asking you to reveal anything that’s privileged, when you work on those, you know, cases at that level…and you know, gosh, she’s done…I think you worked on the Ted Kaczynski case with her and…Do you as the consultant also participating in getting to know the client like at that level?

Denise: Yeah, sure. I mean, in both those cases you mentioned, Kaczynski, who is the Unabomber, people might recognize that more than his name, or Tsarnaev, you know, we were about six weeks, I think in both cases, picking a jury. So, I’m sitting by them or in the same table every day for that length of time so you do get to know them very well.

Scott: Is that a component of the pre-trial preparation in your role or…?

Denise: I mean, you got to know why you’re there, right? You got to, as Molly Ivins used to say, dance with the one that brung you. So, I think that’s an important part of every…it might not be for a lot of consultants, you know, some trial consultants are pretty siloed into just the area of the jury and that’s it. But it’s certainly always an area I’m interested in and it’s who we represent, it’s why we’re there.

Scott: So you as a consultant, again, I guess we go back to you have a good bit of a budget. When you say siloed, I think I know what you mean by that, but tell me the notion of being siloed in terms of the way a jury consultant might be used versus the use of a jury consultant, kind of, in the opposite direction.

Denise: So, I think a lot of people want a jury or trial consultant, you know, to do their area and just stay, sort of, in that field, and it’s not that important for them to be more inmeshed with the trial team. And that’s strictly a style or the preference of the lawyers and to a great extent, I guess, the personality of the consultant or consulting firm. Like, there are consulting firms, nationally, bigger than law firms. Those consultants probably tend to be a little more in their area. And then there are other times…and, you know, those cases you mentioned were death penalty cases. So, that’s different too than a large corporate, you know, case.

Scott: Well, those are heavy mitigation-focused. I mean, generally, in cases like that, guilt-innocence is not what you’re there for. And so, I guess, with the mitigation-focus, your knowledge of the client, and your having the client trust you as a…and sometimes in some of those death penalty cases…and I’m speaking more generally, I’m not speaking necessarily in terms of the ones that we named.

Denise: Yeah, sure.

Scott: You know, sometimes it seems like trial counsel or the trial team may be trying to save the client’s life against the client’s own wishes to be executed.

Denise: And that’s probably more the exception. Well, so I guess sometimes the…I can’t think that I’ve worked on a case, though I’m certain it occurs, where the client at trial really wants to be executed. Sometimes they disagree with the way you’re going to try to save their lives. You know, typically, if they wanted to be executed, they could plead guilty and go for it. In the case of Dylann Roof, you know, he didn’t wanna be executed, but he fired his…that I know of, but he fired his lawyers and what pro se. So, that kind of thing happens. But there can certainly be disagreement on their part on the kind of strategy that attorneys wanna use, or the kind of evidence they wanna present to try to get a jury to say, “This person, we’re gonna let them live.”

Scott: When you are in a situation where you are not siloed, where you were, you know, very integral to the defense team, when do you typically get involved in a case?

Denise: Hopefully sooner rather than later.

Scott: Okay. So, ideally, like if someone were gonna bring in you as a jury consultant, or a jury consultant in general, when really is the ideal time to bring that person on?

Denise: You know, I’ve just in the last few weeks gotten a call on a couple of cases. One will be capital and one is not, a more white-collar case, before the indictment. Those are attorneys…well, one was an attorney I work with a lot and the other, I was just referred to but, you know, there are different seasons of work during that. So, I may do some work and then not work again for a few months and then do some work later. But ideally, you’re thinking about it from the very, very, very beginning. Other people will call me and say, you know, “Got a trial in three weeks.” Those are the calls I don’t like to get. I would never recommend that.

Scott: So, what are you doing pre-indictment, you know, as a jury consultant? What are the sorts of things or activities you’re doing with counsel at that early stage in a case?

Denise: Oh, well, it’s just, you know, again, depending on budget or things that are going on, attorneys just wanna brainstorm sometimes. Or if there are things that are issues that affect a broad segment of the…or peoplewill have opinions about, sometimes you do some research, you know, just to get attorneys…to make sure they’re not drinking their own Kool-Aid, sort of, you know, sort of a reality check for them. Like, they might realize already I could use a sounding board outside this echo chamber.

Scott: Sort of the curse of knowledge, I think that’s what it’s called. Like, when you know something very well, you lose sight of what it’s like not to know that thing…

Denise: Exactly. Exactly. Yeah. So, certainly, that’s not always the case, most of the time, it’s not the case. But the minute somebody thinks about might I use a jury consultant or a trial consultant for some of this, I would say, make the call because, you know, sometimes then I would say, okay, with what you wanna do, let’s stay in touch. I think you’re a little far out, you know, if you don’t wanna do exploratory focus groups, you’ve got budget for one pre-trial research exercise by trial focus group. If we can only do it once, we need to wait and do it when we know some more, but it doesn’t hurt to go ahead and start thinking about it.

Scott: Well, a lot of lawyers will tell me, well, the case is very likely gonna settle. The case is very likely gonna plea when it’s all said and done. So, what’s the point of using a jury consultant when I’m pretty sure, you know, most cases settle anyway? Even with the idea that the case is likely to settle or…

Denise: You wanna get the best settlement you can, right. So, I work with a couple of lawyers…I’m not advocating this because it certainly is up to the lawyer to decide what they wanna do. But in civil cases, you know, you wanna get an idea of what a jury might do. So, it definitely helps educate yourself for settlement purposes. I’ve had lawyers think, oh, I’ve got a, you know, $10 million case. And there’s not a juror that’s gonna give them more than $2 million. So, they’ve got to…you know, that’s not necessarily exactly predictive, but it kind of wakes you up and makes you think about it.

Scott: Because I guess all plea bargaining and all settlement negotiations, they’re done with the fictional trial in mind.

Denise: They have to be, right? What are my chances of…? And then in some cases, I’ve worked on civil cases, the lawyers will take some of the data we get from the focus group, maybe verdict forms. And I go to mediation sometimes and we’ll take those to the mediation that will be in their mediation presentation. We did a focus group and they’ll say,…I always want parameters, but within reason, I’ll be glad to talk about how I recruited the people so they get some idea that this was a credible thing, not a one-sided thing that we did. And that can be compelling sometimes when they’re willing to share, you know, what we learned with the other side. Now, again, I’m not advocating that because there could be litigation. The other side could say, “Well, I think that’s discoverable.” I don’t think it would be, but there are those times when people litigate over knowing that kind of thing. So, that’s clearly a decision for the attorney to make, not all attorneys would make that call, but it happens.

Scott: And that’s a good opportunity, too, if you’re just paying people pizza and a gift card.

Denise: Right, right. You’re probably not gonna take that to the mediation with you.

Scott: Well, but I guess my point being that you probably are gonna want non-disclosure agreements.

Denise: Oh, always. Yeah, absolutely. Always, no matter if you’re doing it for pizza or for a lot of money, you always have the people sign a confidentiality agreement that they will not disclose what you talked about in the focus group.

Scott: Okay. So, even if you think this is a potential settlement, the use of a jury consultant is very helpful to assess what your case is actually worth.

Denise: Yeah. And what hurdles you have and also to sometimes give your client a wake-up call. They could be totally unrealistic and the lawyer knows it, but they’re not gonna listen. You know, or sometimes the clients that say, in a civil case, “This isn’t about the money, this isn’t about the money.” At some point, sadly, it’s got to be about the money because that’s all…I’ve had clients, I said, “What do you want as a result from this case? We’re not getting anywhere.” And they name things that a jury could not enforce. I want an apology. I want this, I want this. Well, the only way you’re ever gonna get that is with a settlement because that’s not on a verdict form.

Scott: So, even if you’re in a situation where you’re entertaining an offer, or you think there’s an offer, you know, potentially at hand, and you have a client that is perhaps being unrealistic. a jury consultant can be helpful to have a…just for the client to hear from a focus group or a mock trial jury kind of exposing the problems with the case [inaudible 00:45:15].

Denise: Yeah. And I think it goes a long way. And I think a lot of attorneys I work with would say this towards preserving the attorney-client relationship because it’s not the attorney delivering the hard news. It’s either the consultant or if you do focus group or mock trial, they get to hear it out of the mouths of other people. And that’s…you know, I’ve had a lot of cases settle a plea soon after we did that because of the attorney or the client suddenly getting very realistic about something that they had, sort of, not been realistic about before. Another thing, just an example I thought of in doing a focus group, if you’ve got the luxury enough ahead of time, I’ve been in a civil case before realized like, wow, when there was time to add parties, they wanna blame somebody we haven’t sued or our focus is on the wrong party. They’re not going to zing this doctor, but they are the hospital that we kind of threw in as an afterthought. We really weren’t pursuing much of a theory against the hospital.

Scott: And if the hospital’s not even a party or they’re wanting to apportion blame to some person that’s not in the suit, you need to get that person in the suit.

Denise: So, we’ve added parties and settled with the people that we thought were the main defendant in our sites and a civil suit because we realized the jury is just not going to go there. We need to focus, you know, somewhere else. They want this plaintiff to recover, but they have a different point of view on who’s at fault here. Now, obviously, you’re not gonna add people that, you know, there’s no claim against, but many times there are choices, or at least choices as to who’s the dominant defendant, who’s the more at fault. And jurors are the ones who are ultimately going to decide that.

Scott: Yeah. So that’s definitely an example of something. If you’re three weeks from trial…

Denise: Forget it.

Scott …you’re not going to add another party at that point, but if you’re early in the litigation, you can potentially.

Denise: Exactly. Exactly.

Scott: This has been great. Okay. So, I’m gonna take one piece of advice you just gave me. What is something that you would like for a listener to this podcast to know either about you or jury consulting that I just haven’t asked you about yet?

Denise: Gosh, gee, see, then I’m gonna be the juror sitting there going, “Nope, you’ve asked me everything.” You know, I think more of what I would say to jurors is a different thing. That’s where my mind was going when he started asking the question. But if your listeners are more attorneys, you know, I guess I’d just reiterate something that I’ve already said, and that is just please allow yourselves to be curious about your case and your clients and never stop asking questions and never stop listening because you get manna from heaven when you do that.

Scott: Yeah, and I think we just aren’t taught that way. I mean, we’re taught in the first year of law school to, you know, break things down to their essentials and, you know, we’re sort of taught this way of thinking that, you know, I don’t think before I went to law school I’d heard the word fact pattern. And, you know, we think of cases…and I can’t think of anything that’s more, you know, anti-story than a fact pattern. So, we’re taught about fact patterns. And, you know, when we’re studying for the bar, we get these multiple-choice questions that there’s not really a story. You know, it’s like party A, party B, what is the result? If as undergrads, you know, we…I majored in English as an undergrad and theology. You know, that’s very…

Denise: Then you know some story…

Scott: I know some story. And then my first year of law school, they proceeded to beat that out of me. And, you know, I think we probably spend the rest of our legal career trying to recover that because we need it. And, you know, clients, sometimes we run out of patience. And I think what I hear you saying is that, but not only with jurors and juries, but it could be the clients trying to tell us something that we should probably be more curious about.

Denise: Yeah, absolutely. No doubt. I mean, we’re here for a reason every single time, and that’s important to know. And based on what you’re saying too, I guess what I’d say to attorneys is, you know, please be the person in court that you are out of court. Don’t just start using, with jurors, the legal language and framing things in that way. If you’re a soccer coach or a Sunday school teacher, or a great griller, you know, for your neighborhood, whatever you are, remember to take that with you and come from that place when you’re in court. Not just from the lawyer who knows the language you got to use to the judge.

Scott: Because chances are people connect with the person…

Denise: They’re gonna relate to that.

Scott: Well, Denise, how can people find you if they are interested in talking to you?

Denise: They can call you, Scott, and you’ll give them my number. I have a…you could find me with your Google machine, trialstrategist.com or denisedelarue.com, which is probably harder to spell, will get you to my website.

Scott: Well, thank you so much. It’s been great hanging out with you.

Denise: Scott, always fun to talk to you.

Scott: All right. Take care.

Denise: You too.

Scott: Thanks for listening to “The Advocates Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com, and please rate, review, and subscribe to this show wherever you get your audio content.