SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_02 0:32

Hello, everybody. This is John Katz at Beat the Prosecution. I'm a criminal defense and DUI defense lawyer here in Fairfax, Northern Virginia. I am delighted to have today's guest. His name is Andrew Mishlove. He is our first guest that I know of. Well, not necessarily our first, but one of our first, who focuses heavily on DUI defense and also incorporates trial or as college approaches to that because he did attend the trialuras college several years after I attended. If I have it right, he's a former president of the National College of DUI Defense, which I'm a member of, and I'm just excited to talk to him. We had a previous leader of the National College of DUI Defense a few weeks ago, Lenny Stan. And an interesting thing about Lenny is he did not attend the Trialores College, but I found out just recently that Lenny attended a program in Cambridge, Massachusetts that included one of the uh teachers of the Trialuras College, Marge Russell, and Trialores College approaches. With that, Andrew, please introduce yourself.

SPEAKER_03 1:39

Delighted to be here, John. I'm Andrew Mishlove, and you already introduced me. I uh am this month in my 45th year of practice. I uh have been doing criminal defense the whole time. And and since 2005, I have been a board certified specialist in DUI defense. And that's uh not one of those pay 300 bucks and you're on the board thing. It's the National College of DUI defense, ABA accredited the real deal, uh, which I had the honor to be the president of, and I was on the board for many years. Um, so that's what I do. 95% of my practice is complicated, serious DUI defense. And what's the name of your law firm and what is your website URL? Um, my website URL is Wisconsin-OWI.com. That's the acronym that's used in Wisconsin rather than DUI. OWI operating while impaired. Um and uh my law firm's name took me a second there, is uh Mishleov and Stuckart LLC. My partner, Lauren Stuckert, is wonderful. She's also a member of the DUI Defense College, she's also a board certified specialist. Um and uh we're we're very uh invested. I I let me tell you a story because I love telling stories and that's what the college is about. 16 years ago, um I was uh doing a program at Harvard Law School. And in those years, the National College for DUI Defense had our summer session every summer at the Harvard Law School. And uh I was involved in teaching that session, but there was a a younger lawyer there who was a friend of uh one of the great DUI defense lawyers from Washington State, Bill Kirk, uh from Seattle. And it was a program on first-person opening statements. And remember now, I'm 55 years old at this point. I'm a board certified specialist. I I I kind of feel like I'm got it. I'm it. Uh I felt like I knew it all, and the world should come to me to learn. And I was finished with my presentation, and I went into the audience and I sat, and up on the lectern stepped Paco Duarte. And he changed my life. In the in the half an hour, 45 minutes that he spoke, he started talking about TLC methods and for and speaking in the first person in opening and how to structure an opening. And remember, I'd been winning cases at this point. I thought I was all in. And in that moment, I realized at age 55, I had a lot to learn.

SPEAKER_02 4:47

The learning never stops, the learning never stops.

SPEAKER_03 4:52

And it was not a it was a moment of humility, but more important than that, it was a moment of awakening that whatever you do in this life, never lose the mind of a beginner, never lose that. I'm just starting down this road, I've got a lot to learn because um the last 16 years of my practice have been, and and I had a good practice before that, but with Paco and the TLC methods and just opening myself up to being a beginner every day has completely changed my practice in my life. And I and that moment in Austin Hall at the Harvard Law School was a catalyst to it.

SPEAKER_02 5:36

So, Andrew, what brought you to uh law school? What brought you to criminal defense and specifically to DUI defense?

SPEAKER_03 5:44

Okay, what brought me to law school was I'm I'm 71 years old now, so I'm a child of the late 60s. That was my adolescence and early 70s. And uh in those days, is you're probably not old enough to remember, but the Vietnam War was raging. I was born 1963, I remember. All right, so um the war was raging, and I was an adolescent, and like all of my peers, we were out in the streets protesting the war, we were opposed to that war, and and it wasn't just a political statement. Back then it was a whole cultural milieu, it was very much our identity, for better or for worse, and a lot of it, I think, in retrospect, was for worse. But uh movement politics, environmentalism, civil liberties, and the anti-war movement motivated me, like a lot of my peers, to want to be a lawyer. And and a lot of great lawyers came out of that milieu. When I got to law school, like all lawyers who go to law school, you uh learn a lot of things that change your opinion of what you want to do with it. So I felt that I'm gonna be an environmental lawyer. Uh, and and when I got to law school and and sort of dabbled in that, I realized that 999 out of a thousand environmental lawyers are paper pushers working for mining companies and and oil companies, just complying with environmental regulations, and they're not movement lawyers fighting for a better world. Um, at some point in law school, I got interested in getting into the courtroom. So I uh at the University of Wisconsin, I went to a clinical program uh in criminal defense, and I just loved it and never looked back. Uh, for many years I was a uh just a general criminal defense lawyer about oh, I guess after 10 or 15 years of that, I traveled out to California for a family reunion uh of my mother's family. And I have uh my mother's family has what they call the family business. It's writing. My mother's family is full of journalists, uh, some of them very well known. And at this family reunion, I kind of got the writing bug. So I decided to write some things about what I knew criminal defense, law. And I I wrote an article about drunk driving defense. And at that time there was this new thing that had just come out, and I published the article using it, the internet. It was like the mid-1990s, and I was the blind squirrel that found the nut. I published a drunk driving defense article on the internet. I was one of the first people that ever did it. It took off, and and it's it's been terrific to me ever since. I I enjoy the practice, I enjoy my clients. Uh, it is very challenging. So that one article got you a whole bunch more DUI clients? It not only got me DUI clients, but it got me noticed. People from around other lawyers from around the country started calling me up and saying, hey, why don't you join our DUI college? Why don't you come uh uh to our programs? Why don't you participate in our programs? Why don't you teach for us? Why don't you write more articles? Um so since then I've written books, I've published many articles, I've taught several times a year. I'm the course director of a program. Uh I still try five or ten cases a year.

SPEAKER_02 9:32

I do want to talk with you about the National College of DUI Defense before then integrating that with the Trial Our As College. I am a member, you've been involved a lot more. So when did you uh get involved and uh and how intensively have you been involved? Because uh I'm I'm just amazed and I love it at the generosity of so many of the members with each other.

SPEAKER_03 9:56

I think the year that I joined that college was 98 or 97, something like that. Um after I was on the internet and published that article. Um and I I loved it immediately. Um in Wisconsin, we are blessed that the criminal defense community uh is very collegial. I I know there are some states where there's a lot of competition and rivalries between different criminal defense lawyers, we don't really have that in Wisconsin. There's a lot of uh mutual support. But even in that background, what I noticed is that if you are active as a lawyer in national organizations, it's even more collegial. There's more support because when you are networking, excuse me, communing, if you will, with people from all over the country, there's no reason for a rivalry. You're in Fairfax, Virginia. I can give you everything I got, and all it's gonna do is come back to me as a benefit, right? And so there's none of that kind of competitiveness, or I shouldn't say none because there's always rivalries. We're you we're human beings, but it's a lot friendlier and easier to be involved in national organizations than local ones. It it surprised me. I I I mean, I had I was not a young man at that point in my life. Uh, I was I was approaching middle age, but uh yeah, it was great to be involved on the national scene. I never looked back in 2005. I uh met the requirements, took the exam, and and became board certified. And uh that's been a huge boon to my practice as well.

SPEAKER_02 11:49

Uh are you being modest here? I get us if you if you uh reach the level of president of that group, something tells me you've put a lot of hours into the uh NCDD.

SPEAKER_03 12:00

Well, I was on the board, I think, for 13 years. Uh yeah, it was a yes, it's a been a labor of love. Absolutely. It was an honor to be invited and uh a labor a labor of love.

SPEAKER_02 12:14

And and how uh how intensively have you been involved with helping to teach other lawyers uh through the NCDD?

SPEAKER_03 12:22

Um I spend at least a full week a year doing that just for the NCDD, uh, because that's the course that I run. Um and typically two or three, four other seminars a year, I'll teach at. I think it is all over the country.

SPEAKER_02 12:42

It is so important for Laura's doing DUI defense to either be a member of the NCDD or its equivalent. I don't know much about the other organization that uh spun off later. I mean, with the uh field sobriety, standard field sobriety test uh training alone that I did through the NCDD with um his his name's escaping me. The the guy over in Georgia. What?

SPEAKER_03 13:06

Well, Donald Ramself from Illinois runs great, but the teacher is Tony Palacios.

SPEAKER_02 13:12

Right, Tony Palacios, great man, and uh and he's great. And uh, and you know, I'm able to say to people so through Tony, I've learned through one of the top trainers to police in doing field sobriety tests and in uh conducting field sobriety tests, including with people who have been drinking. And the cool thing about Tony, he says he actually believes in the uh field sobriety test, but he just thinks that so many of the police officers get it wrong. So he's almost like a member of the loyal opposition.

SPEAKER_03 13:41

Well, definitely. Uh Tony's not a lawyer for for your viewers. Tony is a cop who teaches lawyers, right? Yeah.

SPEAKER_02 13:51

So once you found out about the trial lawyers college, how soon did you attend?

SPEAKER_03 13:58

Well, I first found out about the trial lawyers college through Patrick Barone, who was a DUI college member and a trial lawyers college uh devotee. Uh, and so I started going to regionals. And uh I went to a regional at in Monterey, California, I think in 2012, at where John Sloan was running it. And uh Jerry Spence was there, and Joshua Carton was there, who uh has been dear to me and a mentor ever since, uh, and a lot of wonderful people. And uh I I can't say enough good things about it. Uh the trial lawyers college has been nothing but wonderful to me and for me.

SPEAKER_02 14:49

Well, you know, the reason I went, I was in the uh the second year in 1995, and uh I applied not as much about for Jerry Spence, but because of Steve Rynch. Uh and um I met Steve when he was talking to uh the public defenders, and and I was there, and and he said how great the college was, and I want to learn all about uh Steve. So Steve and Jerry were like yin and yang, and uh and they were both great. So Jerry's uh Jerry was heavily about uh charisma and and realizing there there actually is a way to teach what he learned, which he may have thought came naturally to him, and many ways it did. And and with Steve, he was about uh methodology. And one of the things that was scary to me about going there was I didn't rent my own car, and I was we're we're uh you you went to the ranch when you went, right? At Jerry's Ranch. Yes. And and you're 10 miles from the nearest uh paved road, and then the nearest paved road is 10 miles from the nearest town, Dew Boys, and you're there with these people, and uh you're you're stuck with them regardless. And then you find out uh on the first full day that uh, you know, like I think you said somewhere, this isn't just your typical uh Laura's gathering. If you don't reveal who you you are, uh you're gonna be shunned, and that this is a safe place to reveal who you are. And uh it just it just goes from there. And what the Charlores College underlined to me is I was on the right path all along. For uh these people who said to me, you know, uh, watch out about uh, you know, when a Rome do as the Romans do, no. Uh watch out about rocking the boat, no. Uh, you know, I'm not trying to be a rebel without a cause. I'm a rebel with a cause. Uh when you gotta be a rebel to do it, you'd be a rebel to do it. Uh when you can do it, uh, you know, and and and not uh stand out as maybe some uh tie-dye shirt person, that's fine as well. But the goal is to get as much justice as we can for our clients.

SPEAKER_03 16:57

Absolutely. And you said something about revealing yourself. And yeah, I I mean uh I people know history, and you know, we all have our flaws, and maybe the more charismatic we are, the more flawed we are. But one one thing uh uh about the trial lawyers college in in every iteration is they talk about being vulnerable and letting the jury know who you are, and just little things that are symbolic, like when you speak to the jury, let them see the palms of your hands. Because that's a way that's how a person reveals themselves. That's sort of a uh a uh paleolithic physical reaction to revealing yourself. If we're like this or like this, or hands yeah, you know, it it's it's shielding yourself from other people's view, and uh that was an important teaching, very much so. And and not just as a trial lawyer, but just as a human being.

SPEAKER_02 18:09

What do you do to keep up with the uh what you learned at the trial or as college? Are you involved with any local groups or how often are you going to programs?

SPEAKER_03 18:20

Um I haven't been to a program in too long. And the reason why is uh I was president of the DUI college in the 2013 term. No, I'm sorry, 2023 term. And uh that was just too much for me to take on TLC at the same time.

SPEAKER_02 18:44

Uh it was a ton of work, and that was three years after the schism.

SPEAKER_03 18:49

Yeah, um and and I think the programs are better since then.

SPEAKER_02 18:55

Interesting.

SPEAKER_03 18:56

Uh I I miss the ranch, but the programs that TLC are putting on now are much better. Um, and they were great before. Uh I haven't been back to a TLC program for a couple of years now, uh, and I miss it very much. Uh my partner, Ms. Stuckart, my wonderful partner, who I'm very lucky to have, has had two six-month maternity leaves during that period of time. So I've been slammed, and I'm looking forward to getting back to grad one and grad two, which are programs that I just love.

SPEAKER_02 19:29

What were one or two of your uh key defining moments of the trial or college?

SPEAKER_03 19:39

My first regional out in California. Um and and meeting for the first time and learning from Joshua Carton, who's been a mentor to me ever since. Um the I think what we've been talking about, uh like all of us, uh I'm I'm a very self-conscious person. I I care about what other people think about me. And uh my ex-wife, who I still love, uh last night said, you know, you're a peacack, meaning I love to show off. Well, yeah, but what you also don't know is I grew up and I was the fat kid that was always teased. The fat kid. Yeah, I was, and for the rest of my life, I've walked around trying to carry my body so that nobody would see how fat I was, and it means sucking in my stomach, and it inhibits my breath and changed my voice and my posture and inhibited my communication with other human beings, and it was Joshua Carton who made me realize I've got to get past that. And he started to help me with it. He actually gave me physical exercises to do in front of the whole group to just let go of the tension in my midsection so that I could speak and breathe normally. And I'm not gonna say I'm cured, nobody you're never cured of these things, but I'm a lot better. I mean, let's say I'm in remission. Um so that was the beginning of it, and then uh learning how to listen. Um and then and and I think uh psychodrama probably its biggest impact on me has just been learning how to listen to other people. And and learning that if you reveal yourself to them and find a something about your own life that connects to their lives, then then you can you're never gonna get convinced. Them that they're wrong or convince them to believe you, but you can find a place where you might see eye to eye where their values will match your values. And I had never looked at a trial like that before. To me, a trial was an argument, points for, points against, whoever has more points wins. And that's just a bad paradigm.

SPEAKER_02 22:21

We're going to get to that. I'm going to share with you, I think a key defining moment for me was having Bob Hilliard as my roommate. Bob's a great uh civil lawyer over in Corpus Christi. And when we were there, uh, you know, he was my roommate, and they matched us up, I think, just alphabetically. So he was Hilliard and I was Cats, and I guess there was no one in between for the alphabet. And so as we're revealing ourselves to each other, he knew me in many ways more than I knew myself. And uh he said to me, Bubba, he's the only person who's the first person to ever call me Bubba. You know, that's common over in Texas. So that was a defining moment by itself. He said, you know, two things. He said, you really gotta um go into private practice. I'd been in private practice, I was a public defender then, and really become your own boss. The other thing he said is, you need more confidence. He said, you have so much power, and you don't know your power in so much ways. And it really wasn't until I became my own boss uh three years later that I saw, yes, I feel the full confidence and power by being my own boss, not looking behind my back, not having my boss uh, you know, misconstrue uh what I'm doing, where I'm coming from, where I'm going, and why I'm doing it. And uh then when I told him three years later that I went into partnership with my former law partner, uh Jay Marks, he said, way to go, Bubba. Uh he he and so many of the other people just encouraged me, just be your own boss. You can find it the way to make it work financially. Be your own boss.

SPEAKER_03 24:03

Oh, yeah.

SPEAKER_02 24:04

Yeah.

SPEAKER_03 24:06

I uh I come from a family of entrepreneurs. My my father never worked for anybody, my grandfather never worked for anybody. Um so you know how hard it is to get started, but it's worth the sacrifice for sure.

SPEAKER_02 24:20

Yes, and it helped a lot that I had my former law partner together with me. So we we we were in it together. In fact, we we both grew up uh two towns from each other, not going to high school with each other. And uh he may not like this, what I'm about to say, but I'm gonna say it anyway. So we met each other at Jeffrey Nishball's six-year-old birthday party in 1969. And you know, we're introduced, and he looks me up and down, and he says, girly bell bottoms. Bell bottoms, those aren't girly, those are the rage. Yeah. Uh is it any wonder that he became a Reagan disciple? But let's get back to uh what you were saying about psychodrama and uh let's talk about that and uh and your involvement with storytelling and and this moth storytelling approach.

SPEAKER_03 25:16

Yes. Where would you like to go with that?

SPEAKER_02 25:19

Where you want to go, because I think that the listeners will really like it and I will too.

SPEAKER_03 25:26

I'll start with psychodrama, but I really want to talk about the moth. And I can't talk about the moth without saying thank you, Maren Chalupka, the president of Trial Lawyers College, for bringing the moth to the Trial Lawyers College and then introducing it to us because uh it's her baby, and I don't want anybody to think that this is my idea, this is all Maren, and and it's a great gift. Uh I've heard it said many times that psychodrama is the foundation of the Trial Lawyers College, and and it's not for me to argue that. Psychodrama uh is something that for me has always been profound. Uh, and I've never felt like I have mastered it as a as a lawyer. Uh when I watch wonderful teachers like Paco or Kim Benjamin or Colby Vogel or Pat McLean, these great teachers do psychodrama as a way of reenacting scenes from your case. Uh I'm in awe of their skill at directing the psychodrama scenes in case preparation. Uh I have never really mastered that the way I wanted to. Um but uh a few years ago I went to grad two program, that's Marne's program. As I understand it, grad one is where the cool cats go, and grad two is where the nerds go. I love them both. Uh grad one, when I went, was all it was the most fun I think I've ever had as a lawyer, and it's really the most one of the most fun things I've ever done. We spent almost no time talking about law or trial advocacy. It was singing and dancing and art and music camp, uh just to get the creative juices flowing, which is so important for trialers.

SPEAKER_02 27:25

Right.

SPEAKER_03 27:26

But Mern's program, grad two, she brings in this group, the Moth Storytelling Collective, M-O-T-H. It's about like a moth to the flame. They've named themselves after that. They have books out, they put on programs in I think just about every city in the country on a monthly basis. You can go to a moth program where it's a storytelling slam. You sign up, you get five minutes up on stage to tell the group a story. And people and I think at the moth, it's a contest. There's a winner. And then if you win, you you get to go on to higher levels. But they have a method of teaching storytelling where they first of all teach you story structure, because remember, in the moth, you only have five minutes to get your story across. Um, and it's simplified uh more than other story structure uh explanations I've heard. I've heard about you know the seven parts of a story: the beginning, the end, the rising tension, the conflict. The moth simplifies that, makes it way more understandable. And one thing they told me at the moth, and that Marin impressed on me, was in in your cases, there's going to be a lot of stories. And in and in every story, you need to look for that moment where everything changed. There's what was before, there's what came after, but somewhere along the line, there's a moment where everything changed. And in DUI defense, it can be the moment when I decided to take the drug or have the drink. That's a moment. Or the moment the cop approached the police car and got the wrong idea about what was going on and why did he get the wrong idea, and so on. And when I learned to look for that moment and then structure the scenes in my cases and my cross-examinations and my direct examinations and my opening and closings around those moments, my trials came to life. Yes. And I also learned that those moments may not be good moments for you, right? Um, they may be bad moments in terms of the weighing good, you know, pro and con. But you have to clutch the bad moments to your breast and find a way to make them your story. And I'll give you an example, and this is a moth thing. I was representing a kid in a operating the under under the influence of prescription drug case. There were a lot of bad facts in the case. He was stealing the drugs, uh you know, bad facts, and I was, you know, like a lot of lawyers, I was trying to figure out ways to cover that up, hide that, explain it away, mitigate it, minimize it. Right. And then after that TLC program, I I thought, I've got to find a way to make it my story and not theirs. Right. So one of the bad facts was that this kid was driving with a one of those luggage toilet kits, you know, those little bags we put our toothbrush and toothpaste in.

SPEAKER_02 30:38

I used to call it a DOB kit. All right.

SPEAKER_03 30:41

You know, one of those things was on the passenger seat of his car and it was open. And so the cop walks up to the driver's window and he looks and he sees this open toiletry kit with a bunch of pill bottles in it full of pills. Um, and he says to the kid, You got a bunch of narcotics there. Now there was not an uh technically, there was not a narcotic in the bag. And the kid's the kid's mother kept saying to me, This is all wrong. There were no narcotics, there were benzodiazepines and this and that. And I thought, lady, be quiet. It doesn't matter, stop nitpicking. And I was feeling really hopeless in this case. And then really, because of TLC, I realized, wait a minute, she just handed me the case. And instead of running from that and trying to minimize it and hide it, I made it one of the big scenes in my trial because the cop saw what he thought was evidence, he copped an attitude about it. Yes, and I didn't have to go after this cop on the field sobriety tests or all the traditional things we do, you know, you moved your finger too fast, and he didn't, you know, he his he he only lifted one arm, not two, and all that kind of stuff we do. All I had to say in that case was, and that colored your view of the whole thing from that moment on.

SPEAKER_02 32:16

That colored your view.

SPEAKER_03 32:19

I I made that really bad moment mine, and there were other moments in the case I did before. What was his answer? No, it doesn't matter what he answered. It doesn't matter, right? That's that was another great thing I learned from the trialers college. The question is not about the answer, it's about you telling your story. Who cares what he answered? I don't remember. I think his answer was no, it didn't, but of course it did. Nobody everybody knew it did, right? And and it wasn't just that I argued that point, arguing that point wouldn't have worked. I used TLC methods to make that scene come alive for the jury. All five senses. Yes, yes. And you know, it was this hopeless case. Uh I I had focus grouped the case, I think, two or three times before the before the trial, and the and the focus groups hated my kid. Um, I had I had had um experts look at the case and they wouldn't touch it. Uh and but the jury saw the truth of it, which was this was not a story of this kid's downfall. It was the story of his first steps on the road to redemption.

SPEAKER_02 33:38

Okay, so what were the criminal charges here?

SPEAKER_03 33:42

Uh, it was a DUID case, operating under the influence of drugs.

SPEAKER_02 33:46

Was there a blood draw?

SPEAKER_03 33:48

Yeah, yeah. And what came out on the He had prescription drugs in his system.

SPEAKER_02 33:54

Okay, so the argument that was just a therapeutic level and and and and not uh what would necessarily uh uh impair his driving?

SPEAKER_03 34:03

Yes. Yeah, essentially. I didn't quite put it in those terms, but yes.

SPEAKER_02 34:09

What you said uh is so important.

SPEAKER_03 34:11

One of the problems was they weren't necessarily prescribed, but yeah, that's the uh that that's the other thing.

SPEAKER_02 34:17

So what you said is so important, Andrew, about you know, to an extent, who cares about the answer, of course, right? But that that we are telling our story through the cross-exam. There was this time that uh a double-edged sword period for a few years after COVID, where the prosecutor's office in Fairfax was not prosecuting certain misdemeanors because this was part of the chief prosecutor's push to get more budgeting, and he got it. So, without an opposing prosecutor, my client was accused of assaulting this man by uh uh by pushing him and throwing his coffee on him. And I told the client's story by saying to the guy, so you're saying you were following uh this uh this woman down the road, right? Because she was driving, you thought she was driving strange. You want to make sure everything was okay, right? Yeah. Well, you were actually attracted to her. No, I wasn't. Well, even though you weren't attracted to her, you followed her for the next three miles. Yeah, because I wanted to make sure everything was okay with her. And uh, and it was just coincidence that her destination was the same as yours. You ended up going to the same parking lot. He wouldn't even admit, for instance, that his written complaint to the magistrate to issue the charging document was three pages rather than two pages. And the judge said, I can see it's three pages, Mr. Katz. To the point when the judge acquitted the guy, I said to myself, that's interesting, because the cop got up on the witness stand and said he saw coffee on the uh complainant's shirt. The complainant said, My guy had thrown coffee on him. That could be assault, too. So not only did I tell my story through this complainant, but the judge got so irritated about it, resisting on even saying if his complaint was three pages versus two pages, the judge just wanted to send him out, send him out of the courtroom. Not guilty. Absolutely.

SPEAKER_03 36:17

That's another thing I I I've learned from the trial artist college. The answer isn't as important as I mean, trials are not arguments, they are human dramas about trust and betrayal. And that's the paradigm you have to look at. Um it isn't about if your answer is correct, it's about if it's an answer that can be trusted. Yes. And so when there's a bad fact, it's it's a bad fact. That so what? That's if you admit a bad fact, you're still trustworthy.

SPEAKER_02 36:58

So let's talk about how um the extent to which uh trial or as college approaches are used with the National Criminal Uh, National College of DUI defense, how that came about, and how do you use trial or as college methods in working with expert witnesses and presenting uh the DUI defense beyond what you already talked about, for instance, with that guy caught with the pills?

SPEAKER_03 37:28

Well, boy, that's a lot. Yes. Um the National College for DUI Defense does not endorse the trial lawyers college, and we don't try to be, you know, trial lawyers college light. Uh, I think uh there are lawyers in the National College for DUI Defense who are very successful, good trial lawyers, who don't even agree at all with trial lawyers college methods. They they have a much uh more analytic approach to it, I uh and and they are successful lawyers. I've heard lawyers uh, especially on Vardir, uh, there's a lot of debate about it. Some people go up and talk about uh the uh you know, the whole purpose of Vardir is to find your biased jurors and get rid of them. Well, that's not the trial lawyers college point of view, right? The whole purpose of Vardir is to start arguing your case. Well, not at the trial lawyers college. Um, so there's a lot of debate about that. But the trial lawyers college or the the National College for for DUI defense, I think, uh showcases a lot of different viewpoints, sometimes in the same seminar.

SPEAKER_02 38:39

Right.

SPEAKER_03 38:40

Uh I'm a trial lawyers college member, and I would I would say that I'm an advocate of the trial lawyers college method. I I'm not fluent in psychodrama at all, but I I see its value. There are other board members for the National College for DUI Defense who are trial lawyers college members, and even uh a trial lawyers college instructor who's on the board of the DUI college, uh Kim Benjamin, who's wonderful. Um so I've made it my personal mission during the time that I was in office in the DUI college to showcase trial lawyers college methods at the DUI college. And I think it's been a really terrific relationship. Um the trial lawyers college powers that be, the board of directors and president have never ever begrudged us uh the use of really trial lawyers college intellectual property uh ever. And we've always um made it clear that we're not trying to steal it. We want to we want to showcase it for you. It it helps us, it helps you. And it's worked out that way. Um the the DUI college has gotten, I think, a significant number of members through TLC. And uh TLC has gotten some significant numbers of members through the DUI college. Um and and the uh relationships uh have have, I think, made us both stronger, and and intentionally so. We we we discussed that with each other, um and and we understood the the dangers of using other people's work, uh, and and so we made it really clear from the start that uh we're gonna do it the right way. And it's been going on now for, I think this relationship is more than 10 years old now. Uh, and it's it's worked out fabulous.

SPEAKER_02 40:48

And how have uh you and other people you know uh integrated uh Charlora's college approaches with dealing with scientific evidence and presenting that to judges and jurors and working with experts? Because, you know, from my with me, with experts, they though these expert witnesses run from being very cold and scholarly to as warm as anything and everything in between. I remember I had an expert witness, he was just sweating like a pig on the witness stand. He he was an expert in an area where he almost had no other equal. And I talked to him during a break. I said, Why are you sweating? He said, Because I'm nervous. I said, Yeah, but you're you're the only expert in this area. You're the top guy. You don't have to be nervous. He said, I'm still nervous. And this was around uh uh 200 uh eight. I said, We're not gonna get any nervous at $650 an hour. Take that out.

SPEAKER_03 41:50

Those guys are well paid. Uh well, let's start with the expert thing. Um learned from the trial lawyers college is to get rid of the old paradigm of experts. Um experts are part of your story. Uh again, it's not an argument, it's a story. So the place where to me it had the most immediate impact, maybe not the biggest impact, but the most immediate impact is just in qualifying your expert.

SPEAKER_02 42:23

Right.

SPEAKER_03 42:24

Um, so the traditional way of qualifying your expert is basically to have, excuse me, have them read their curriculum vitae to the jury. Right. I went to this university, I wrote these books, I taught these classes, I've conducted these studies. Uh, I have this pedigree, and here is my 75 different articles I've written, and my CV is 25 pages long, and it and it's 10 more pages than yours, so I'm better. And it was kind of like that. Right, and I mean you have to do that, you can't ignore that because it is part of the story. But I start my qualification of experts now with just tell us about yourself. Yes, why do you love what you do? How did you get interested in this? Tell us, you know, I'm I've let's say I'm talking to a laboratory quality control auditor, wonderful expert like Janine Arvizu.

SPEAKER_02 43:26

Uh who I'm working with, yes.

SPEAKER_03 43:28

Yeah, she's fabulous, she's a wonderful union and and a great witness. And I just ask her, why do you love this, Ms. Arvizu? Why do you do this? And and that's what's gonna qualify them in the eyes of the jury. It's not about a list of pedigrees, it's about trust and betrayal and connection. Um, so that's immediately changed it, but you still, of course, have to do the nuts and bolts. Um, the one of the people that I met at the trialers college, one of the great teachers is Jesse Wilson. And you know, Jesse's big thing is structure your trials the way a movie is structured, and that's one of the things really I learned at the trialers college. And Jesse's Jesse has a whole series of lectures, and I think even a book he wrote called Tell It Like a Movie. And he has this exercise where you pretend you're a movie camera and describe what you are visually seeing in order to structure your direct examinations. Um and in the movies, they there's uh a term coined by Alfred Hitchcock, McGuffin. You probably heard the term.

SPEAKER_02 44:50

I've I've heard, I'm trying to remember what that meant.

SPEAKER_03 44:52

All right. The McGuffin is the is the plot device, which is the catalyst for the story.

SPEAKER_02 45:01

Okay.

SPEAKER_03 45:02

Um, but it is not the story itself.

SPEAKER_02 45:04

The catalyst.

SPEAKER_03 45:06

It's the catalyst. So in Star Wars, the MacGuffin was the Death Star. There were lots of MacGuffins, but the McGuffin was the Death Star. Um Star Wars was not about whether the Empire would have this Death Star that was going to destroy good and evil would win. And Luke Skywalker and and the rebels had to destroy the Death Star so that good would defeat evil. That was the McGuffin. Good view versus evil was one of the storylines, but the big storyline in Star Wars was the hero's journey. Was Luke Skywalker going to fulfill his destiny? That was the plot of Sky of uh Star Wars. But the MacGuffin's still important. You gotta have a Death Star that still looks great and looks like a Death Star, and you have to be able to explain the details of the Death Star. Um, so you can't forget the arguments in the science, but you have to remember that it's it's not the story, it's it's part of the threat of the story, but it's not right. Uh let me give you one more example. I know I'm taking up a lot of time, but I gave a lecture on this. You're you're my interview, you're the man of the moment. My cousin Vinny. Every lawyer loves that movie. What is the plot of my cousin Vinny? Most people, when I ask that question, say, Well, is Vinnie gonna win the murder trial?

SPEAKER_02 46:35

Right?

SPEAKER_03 46:36

Oh, it's that's the MacGuffin.

SPEAKER_02 46:38

Yes.

SPEAKER_03 46:39

The the plot of my cousin Vinny is again a hero's journey. Is Vinny, because remember, who really won that murder trial? Vinny won it.

SPEAKER_02 46:50

It was Marissa Thomas' character.

SPEAKER_03 46:52

Yeah, Mona Lisa Vito.

SPEAKER_02 46:54

I'm gonna there you go, Mona Lisa Vito.

SPEAKER_03 46:56

May I leave now? The plot of that movie was I I urge you all to just go back and watch it. If you don't know what I'm talking about, go back and watch it one more time, remembering what I said. That movie is about will will Vinny, who is a jerk and treats her terribly, grow up and learn to respect her as a human being and stop minimizing her and diminishing her, and and learn to accept her gifts to him, respect her gifts to him, and honor her and thank her. In other words, will Vinny, the child, become Vinny the man and fulfill his destiny? Right. That's what that movie's about. The murder trial is the McGuffin. But you had to have a good murder trial, right? The 64 Buick Skylark was another McGuffin. Yes, yes. But you had to be correct in what you were saying about the position versus the solid axle and all of that. It all of that stuff had to be real.

SPEAKER_02 48:08

Okay, so now let's uh bring bring it to Janine Arvizu on the witness stand at trial, who's great and personable, uh, versus the more cold expert because we couldn't find any anyone uh similar. Uh where's the McGuffin in the trial now? And and and and where's the hero's journey here then when we're in front of the jury with these experts?

SPEAKER_03 48:31

Well, let's take a typical DUI trial with a fairly simple um defense to blood alcohol result. Um all the other facts have to sort of line up. It's a constellation of things that have to align, but you still have to have an answer for that 0.13 or 0.14 blood test result. But let's assume that we have a um a sample where uh there's no body-worn camera video of the blood draw, or you have a video and you find some flaws with the way the blood was drawn, and the blood wasn't refrigerated for three or four days after it was drawn while it was in transit to the laboratory. That's a very common scenario in a lot of places.

SPEAKER_02 49:20

Right.

SPEAKER_03 49:21

So for those people who have studied this, you know that blood is a liquid that contains a carbohydrate, blood glucose, and that if it is contaminated with certain organisms, um they will uh ferment or decompose the blood, and those organisms will uh consume the carbohydrate and excrete, among other things, ethanol. In other words, blood can ferment just like grape juice can, except for instead of getting wine, you get a higher blood alcohol level. So that's a defense. But that's not the story, that's just the MacGuffin. The story is the laboratory that doesn't care enough, or the government that doesn't care enough to train phlebotomists on legal blood draws, which are uh require a greater level of sterility than hospital blood draws, because in hospital blood draws, the blood's tested right away, it's not left unrefrigerated for a week. Or the government that doesn't care enough to have the blood transported to the laboratory by a medical courier service that puts it in uh one of those uh drink coolers full of ice, it just puts it in the United States mail.

SPEAKER_02 50:41

That's right.

SPEAKER_03 50:42

Or so it's it's not about the actual scientific principle, it's about the betrayal. That's your story.

SPEAKER_02 50:51

Well, that's the anti-hero's journey.

SPEAKER_03 50:54

Well, now the next part is who's the hero? And this was another paradigm shift for me. I always felt like, well, damn, I'm wearing this nice suit, I'm the hero. Lawyers are heroes. I'm gonna go in there and I'm gonna save the day. I'm gonna convince the jury that I'm right and the prosecutor's wrong, and they'll see they'll see the light, and I'll win and I'll be a hero. And the answer is you're not the flipping hero. We are not the heroes in this story. Right. The trial is a story too, right? Yes, the hero has to be the jury. We are not Luke Skywalker. We are, if we're lucky, Obi-Wan.

SPEAKER_02 51:37

And so when there's no jury, the hero has to be the judge, then? Is it Ben's trial?

SPEAKER_03 51:43

Yes. Yes. And and the trial, think of it as a hero's journey. Yes. Our job is to be their guide, their mentor. Not we're not the hero. We're the we are hero's best friend.

SPEAKER_02 51:58

And what do you say about the extent to which argument is not part of winning a trunk?

SPEAKER_03 52:06

Well, I think it's a part of it. It has to be a part of it. Of course. But I guess the best thing I can do is is is the metaphor I gave you before. Argument is a is some of the thread in the fabric of your story, but it's not the fabric. It's not the story. But it has to be woven into it. It has to be. Otherwise, otherwise, there's there's nothing there. I mean, it would be my cousin Vinny without the trial. It would be Star Wars without the Death Star.

SPEAKER_02 52:42

Yes. Well, Andrew, this has been uh fantastic. You know, I never know what I'm gonna uh find and talk new at guests. And with you, this is the first time I've ever uh talked to you, uh, which is really incredible. I I think we may have uh emailed briefly a couple of times before where I said, Hey, you know, pretty cool. I see you're with NCDB and you're also at the trialores college. Andrew, is there anything you want to tell everyone that you haven't already said or anything you want to remind them of before uh we sign off?

SPEAKER_03 53:15

Um I want to, if I may, I want to pitch my course. Good. Uh I uh created uh about 12 years ago, and I'm still the course director. Uh I think the best course, certainly in the United States, and I mean my, you know, obviously I'm gonna say that, but um it's it's a terrific course. It's the only one of its kind, I think, in the world. Um, it's called Serious Science, Blood Testing and Trial Advocacy. It takes place in Arlington, Texas, in August, at the University of Texas, Arlington. And yes, it's hotter than hell, but it's worth it. And why do we do it in Arlington, Texas, which is closer to um DFW airport than Dallas is, by the way, in terms of flight connections. Uh why do we do it there? It's because we have access to this unbelievably great laboratory in the summer when the students aren't there. Otherwise, we couldn't use it. And it's one of the best laboratories in the world. So we go there, all air conditioned. We have limited enrollment. We only take 28 students. Right now, it's about half full, maybe a little more. So there's a few seats left. It starts on a um Thursday night I arrive, but uh the the instruction starts on a Friday morning, where in the hotel conference room we uh start doing really beginner science lectures. We start with the science. So if you know absolutely nothing about analytic chemistry and blood testing, you can come and you'll still find it valuable. We we we we start with the very basics of the scientific method itself, really, and then the method and the equipment used to test blood and so on. That's just lectures on on Friday, Friday night. We have a great dinner together. Uh Saturday morning, we're at the laboratory all day Saturday, um, just learning hands-on on how this all works. Um and you you put on lab coats, by the way, you're given a lab coat, and you put on the goggles, and and you use human blood, might be bovine blood some years, but you use blood and you prepare samples and test them on this equipment. So you internalize exactly how it's done, and there's a lot that can go wrong, and it's more than just something you've read about. Now it's you've experienced and you have a sense of it. Then uh your samples are are the analyses are run. We we go through the analyses, and everybody uh has a good laugh because some of them are so out of whack and and so on, and you get it, and you learn you learn the science. Three days of nothing but blood testing science. Then the next three days we spend in the hotel conference rooms in large groups and small groups working TLC methods about how to tell the story of what you did the first three days. Excellent. ncd.com, serious science. It's August 7th through 13th this year, and it's already half full. And it's going to be at the Lowe's Hotel, right next to the baseball stadium. You get a baseball game, we throw a great party. Come on down.

SPEAKER_02 56:55

Excellent. Well, I'm looking forward to fitting it into my calendar. If I can't do it this year, doing it next year.

SPEAKER_03 57:00

Excellent. And thank you for letting me do that. I saw you looking at the clock. I know I'm a long way.

SPEAKER_02 57:04

I wasn't looking at the clock, I was looking at my software uh because it keeps getting updated for making sure it's recording right. Oh, yeah. There's no clock that I can see on my screen. Andrew.

SPEAKER_03 57:16

Anyway, it's been an extraordinary honor to be asked to speak. So thank you.

SPEAKER_02 57:22

Well, you're welcome, and thank you. I only invite the creme de la creme, and that's why I invited you. Thank you so much, Andrew Mishlove. Andrew Mishlov is a Wisconsin lawyer at the law firm of Mishlove and Stuckard with several uh offices there. So if you need a lawyer for DUI defense or criminal defense, call them up over in Wisconsin. If you need someone in Wisconsin, this is John Katz. I'm a criminal defense and DUI defense lawyer here in Fairfax, Northern Virginia. This is Beat the Prosecution, because there is no other way. Thank you, Andrew. Just one moment. Gotta figure how to turn this off.

SPEAKER_00 58:07

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.