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 0:31

Hello, everybody. This is John Katz. I'm a criminal defense and DUI defense lawyer here in Fairfax, Northern Virginia. This is Beat the Prosecution. I am delighted to have today's guest. Her name is Kim Benjamin. She's over there in Missouri. She's a fellow graduate of the Trial Auras College from just a few years after I went there. She is very active with the National Criminal, sorry, National College of DUI Defense, which I am a member of. And I didn't mention to her before we started talking. This is the first time I'm ever talking to her. We both went to George Washington Law School. She was a few years after I was. And there you have it. I'm going to talk be talking to Kim about numerous things. And one thing I didn't add to her is she's got numerous lawyers at her law firm. I'm a solo practitioner. And one of the things I want to talk to her about is how to get the team working all together towards getting the best possible results for our clients. And with that, Kim, please introduce yourself.

SPEAKER_01 1:36

Hi, well, thank you for having me, Jonathan. Again, I'm Kim Benjamin. I'm from Kansas City, Missouri. And I own a criminal defense law firm. I uh became a public defender when I got out of GW law school. And I did that for almost six years here in Kansas City and across Missouri. And then I opened my own practice in the Kansas City metro area back in 2002. And I'm like you said, I'm very active in the criminal defense world. I'm a past president of the Missouri Association of Criminal Defense Lawyers. I still chair the DWI program for Missouri lawyers through MACDAL and Missouri Bar. And I teach often for trial lawyers college and different organizations that I lecture for. And uh most recently I was just I just got back from Nashville. We did the National College for DUI Defense summer session in Nashville. And I um I served four years on the board, which just ended on Saturday. And here we are.

SPEAKER_02 2:33

What is the name of your law firm and what is your web address?

SPEAKER_01 2:38

It's the Benjamin Law Firm, DWI and Criminal Defense Lawyers. And the address is DWI Criminal Law Center.com.

SPEAKER_02 2:47

Does your law firm only do DWI and criminal defense? Do you still do some civil practice at your law firm?

SPEAKER_01 2:54

Yeah, we do everything from traffic tickets to murder cases and everything in between. Um, but and that's what the team of lawyers that I have. I have four attorneys on the team. Uh that's what they will specialize in. And then those cases that sub there are civil cases related to our DWI work and our criminal work if there's orders of protection. Um, and then when it comes to civil work like personal injury and employment discrimination, I co-counsel with other law firms here in Kansas City uh to take those cases to trial. They haven't, I've I've only had two in the last, you know, since COVID. December of 19 was my last employment discrimination injury trial. And I had a personal injury trial during COVID, a few years after that. And I may have an employment discrimination trial coming up within the next year, maybe longer. Sometimes those get bumped pretty far out, but those um I work with other attorneys on. And the firm doesn't handle those, just me. If the if the if a friend or a client has a civil issue in that in that world, I um refer it to someone who specializes in that area of law, and then I tried the cases with them.

SPEAKER_02 4:04

What made you decide to go to law school?

SPEAKER_01 4:09

That's a funny story because I did not know a single lawyer. I was at the University of Missouri in Columbia, uh, majored, had two bachelor's degrees that weren't going to help me find work, political science, and then honors interdisciplinary studies at the honors college, which was speech communication and psychology and accounting, mixture of those three areas of you know study. Um, and so I decided to go to law school because of LA law of all things, and my mom saying, Kim, you like to argue you should go to law school. But I loved LA law and I thought it looked fun, ironically.

SPEAKER_02 4:48

That's wild. I I decided to go to law school at first because I decided I was gonna save the world. And then when I realized that might be uh too big a task, I decided I would save my corner of the world. And I don't know if I was saving the world while I was working on Wall Street during the year before law school, but it'd give me a chance to talk to one of the lawyers working there in the trust division, having nothing to do with criminal defense and someone who was in law school part-time. So uh there you go. But it it was I I learned how to save my corner of the world doing criminal defense.

SPEAKER_01 5:20

We all find our way.

SPEAKER_02 5:21

I did hear you speaking to Ray Foreman on the TLC podcast about how you chose criminal defense. Uh, but what was particularly interesting there was you saying that you didn't realize what was it until you actually were doing criminal defense that you realized how unfair the system is for criminal defendants.

SPEAKER_01 5:40

That is so true.

SPEAKER_02 5:41

I please talk about that.

SPEAKER_01 5:43

Yeah, I was a young small town girl in Missouri, naive. Um, I thought that the police told the truth and only arrested, you know, the bad guys. Kind of like you see on TV. I didn't have any real world experiences. I didn't have, other than getting a speeding ticket or you know, a traffic ticket, I didn't really have any sort of I didn't cross paths with the justice system, civil or criminal. So I had no clue. Just what TV and books taught me until I went to well, in law school, I started interning with the public defender's office just for one semester. I really liked my criminal law professor at GW. And he was that his name's escaping me. I can see him. Um, but he was a public defender, and so I went to the public defender system in Washington, DC for a semester and interned, but it was really, I didn't even have a group of interns. It was just like me and my professor and memos of law, and and I didn't even get in the courtroom or do, you know, meet clients or do anything like they do today with interns at the public defender system, at least here in Missouri. And then I um I just was so naive until I became a public defender in Kansas City, and within a month I was like, wow, this is how people are treated, and this is how petty crimes turn into, you know, setting people up for future failure. Because we don't we don't give people the benefit of the doubt, and we certainly don't give people second chances, even though they talk the talk and they still try to talk the talk with juveniles or young people. They they really do lock them up and throw away the key, it feels like, or at least set them up for failure. Even I've had many prosecutors say, well, it's just probation, it's no big deal, but right probation sets them up for failure. Probation does not set them up for success because the system is not built to help them with services like it should. Even in the adult criminal justice system, the services are so expensive and not easily attainable. And certainly when someone messes up, whether it's drug addiction or mental health issues that causes them to mess up, they're they're treated as if, well, one mistake, you're done. And it's just sad to see.

SPEAKER_02 7:58

Did you learn about racism in the system while you were doing that work? Absolutely.

SPEAKER_01 8:03

That was very eye-opening. I was an Air Force brat. I was raised around people of all cultures and colors. In fact, my best friend when I was a little girl, her family was from the Philippines. Her dad was the the chef for the vice president of the United States when I lived in DC. And um, people from the Philippines and Brazil and and um all different cultures, and of course, black and white, American, non-American. And so I just was very naive. When I was raised in Harrisonville, Missouri, um, of course, it was uh not culturally diverse. Uh, and so I was again not exposed to seeing uh how the police treat those of color. By the time I was in high school, it was it was just small town kids versus the police, most likely. Um, you know, country drinking in the field at the field parties, and the cops show up and pour out your drink or throw away your weed or whatever. Just the way they treated kids back then, or at least in the country, was all I'd seen. And then I see how they treat uh people in the city, I see how they treat people of color, and I was really it was eye-opening and not in a good way, in the sense that I didn't like what I was seeing.

SPEAKER_02 9:23

Is it just you saw disparate treatment based on uh people of color as a group, or did you have any specific instances you noticed?

SPEAKER_01 9:32

Um you know, both really people of color were treated differently. They but it was often not just color, even though I saw that. Like, for example, I mean what I was about to say was people of lower economic means. Yeah, anybody, anybody in the poverty level, which of course, as a public defender, my clients were deemed impoverished, right? And and so they were treated very differently than someone who had money and had access, had insurance, had different education. Just and it went back before they were even that 18, 25-year-old kid in front of me as a client. It was from kindergarten on, they were set up for failure, unfortunately, for the most part, and set up for being suppressed. And that was something I started learning and seeing as a young um person out of law school. But I had a specific instances where I worked with black lawyers who would describe to me what it was like to leave downtown Kansas City as a lawyer in their nice car and drive to what we call Eastern Jackson County, which is kind of like a suburb of Kansas City, but it's the other Jackson County Courthouse here in Kansas City. We have our Kans City Courthouse and we have our Independence Missouri Courthouse, which is eastern Jackson County. And that second, just the drive from Kansas City to independence, which was less than 15 miles. Yeah, they were telling me how they'd get pulled over and treated crazy lawyers. And so that was eye-opening to me. Like, okay, now I'm I'm seeing and hearing things that I just hadn't been exposed to as a young person.

SPEAKER_02 11:10

You may have heard Brian Stevenson, the founder of the Equal Justice Initiative in Alabama, said that one day he's in court and the judge is treating him just as a uh defendant, even though he's dressed up in a suit. And uh, you know, he he held his tongue about that because he knew that he'd be able to leave that jurisdiction, but not his client. And uh, Miles Davis uh in an interview said uh that he would notify the police in advance when he was going to point A to point B because he'd be he'd be in his famous, his uh uh his expensive car going from Beverly Hills or wherever he was living at the time, just so the police could give the shout out. That is Miles Davis, not a black man who stole Miles Davis' car.

SPEAKER_01 11:51

Wow. I hadn't heard that one before, but I've seen Brian speak and tell that story. And I, you know, uh as a woman, I have had uh female lawyers be uh treated like paralegals in the courtroom. And the deputy, the court clerk, and the judge, oh ma'am, are you you know the paralegal? No, I'm an attorney. Um it so it's all around.

SPEAKER_02 12:14

Yeah, well, let's talk about that one. When I started as a public defender lawyer, uh I was a few months into it, and there was a lawyer, a female lawyer who is at least probably five or eight years older than I was, and many, many years more experienced than I. I just started. And yes, um, a bailiff came over and he and he said and he said something to the to the the uh woman I was speaking to the the lawyer, he said something along the lines of well, you know, this row is only for lawyers. So, well, I am a lawyer. Crazy.

SPEAKER_01 12:44

It is crazy. There was a judge here in Missouri, and I believe also in the federal courthouse here in Kansas City years ago, before it did not affect me, but I'd heard the stories. If you go into that judge's courtroom, of course, it's a man, um you and you're not wearing a skirt, he literally had skirts and chambers for you to put on.

SPEAKER_02 13:08

All right. Well, I guess I guess we could do shows and shows about all the uh the the discrimination against uh women and and and people or anything other than white males. Yep. Okay, so then I'll I'll move on and we'll get to that another time.

SPEAKER_01 13:22

More positive topic, please.

SPEAKER_02 13:25

Well, more positive topic.

SPEAKER_01 13:27

Okay then in the criminal defense world, there's hopefully some positive comment uh topics.

SPEAKER_02 13:34

Well, there is there is like our wins, it's often like the the thrill of victory and the agony of defeat.

SPEAKER_01 13:40

And sometimes, yes. Well, go ahead, I'll let you. I was gonna say sometimes our wins aren't winning the case, but helping exactly.

SPEAKER_02 13:48

What made you decide to go to the trial or as college?

SPEAKER_01 13:53

My mentor at the public defender's office in Kansas City was a woman, uh Cindy Short. She was at the I know Cindy, the death uh squad, we called it, or um death penalty unit. And she had never lost a case, and everyone just spoke so highly of her. And when I say she'd never lost a case, she'd never lost a client to the death sentence. And uh so I would follow her, like I'd watch her in court. If I heard she had a trial, I was trying to see her in trial, and I'd reach out to her, hey, I have this big sex case or a murder case, and I'd love for you to, you know, help me. And she just became a mentor and she suggested that I go to the trialers college. She was on the board at the time. She had already been through the college as a student a few years before. And she said, you know, Jerry Spence, he's 70 years old. If you don't go now, he you may never get to go when he's still alive in a part of the college. And of course, he lived another 25, 26 years. But that's what caused me to go. I I respected her. I was and she said it was about improving your trial skills and being a better trial lawyer, which I was very much focused on. My career, being the best trial lawyer I could be, helping people, uh, winning cases, skills in the courtroom, not being afraid to from voisir to closing to know how to do it better. And then I show up and realize it's a little bit more than that, actually.

SPEAKER_02 15:17

A lot more. How long was the college when you went?

SPEAKER_01 15:22

I went the first year that they had cut it way down. It was 2000, and it had been 30 days prior to me, but my session was 21 or 22 days. They they really jam-packed it, and we were in October of 2002, so we were there when it snowed a lot in Wyoming.

SPEAKER_02 15:40

It was a full month when I went, but we just did the sessions Monday through Friday, and I was on the only able to take the time away because I was a public defender at the time. I just marvel at all the private practitioners who took a full month away from their practices, and even if they weren't just solos, uh, you could only get a cell phone signal by driving at least an hour away, going into the mountains. There was no internet. I don't even know if there was much fax service over there. That was wild.

SPEAKER_01 16:07

When I was there, I had a cell phone. I very recently had a cell phone with a company called Nextel. They don't exist anymore. Next Dell only worked. Well, Next Del did not work in Wyoming, let's put it that way. So I had to use the calling cards and the landlines at the big barn. That's how you know, it was 2000, just 26 years ago.

SPEAKER_02 16:30

It was that when I made my phone calls, there were two payphones.

SPEAKER_01 16:34

Yep.

SPEAKER_02 16:36

Okay, so what was it that uh made you and the Trollora's uh college click so much that you became a member of the staff and and you became you began uh doing the teaching yourself over there?

SPEAKER_01 16:51

Uh I alright, so 2000. I was a public defender. I go to the college for three weeks, and I get home and I'm using the method, but I had I could not go back. There wasn't, at least I wasn't aware of scholarships or opportunities to go to a grad program or a regional. I'm not even sure they had regionals in 2000, but I I know that I went to private practice in 2002. I maintained my relationship with Cindy Short. I don't remember if she was a public defender or not, because she did leave the public defender um and go into private practice herself. And I just don't remember if it was before or after me. And then in 2006, I decided I'm going back to a grad program because by then I'd, you know, saved some money of four years in private practice. And I go back in 2006 for the grad program, 2007 the grad program, and in 2008, Cindy, who was still very involved and on the board, and she was the chair or the person who ran the death penalty college, which was it's now just all criminal defense lawyers, but it was the week that they devoted to working with mitigation specialists, private or public or private investigators who do death penalty work and lawyers who do death penalty work. Um, she asked me to be on the faculty for her program. I didn't even know there was I didn't even know it was organized, I didn't know there was training, I didn't know anything about that. And she somehow got me in to be on the faculty, and I had such a good week that people on the faculty are like, wait, what, you're not trained? And I'm like, I didn't know there was training. So then I was officially put on the faculty since I had such a a good week that week uh experimenting with being a faculty member and just having fun. Is I I didn't have any I didn't have any fear because I didn't know any better. Right. And and so Cindy had invited me, and that's how I got on the faculty.

SPEAKER_02 18:46

Well, well, that's really something because I I hear of some people who you know they they're trying left and right to get onto the faculty, and here you you were just added on, and you'd even weren't even trying.

SPEAKER_01 18:57

I wasn't even aware there was a a thing to get on or a way to get on, it just happenstance. I I guess I was lucky enough to um be a mentee of Cindy Short and a friend.

SPEAKER_02 19:10

And so when you went into private practice, did you join with other people or did you just open up hang your own shingle?

SPEAKER_01 19:18

I went out on my own. I went back to my hometown, Harrisonville, Missouri, which is um a suburb. It's the county south of Jackson County, Kansas City, Missouri. And I um started renting space, and it was just me renting space right there on the square. The courthouse was on the square at the time in my hometown.

SPEAKER_02 19:36

That took a lot more gumption than what I did because I went out with my former law partner, Jay Marks, so at least we were supporting each other.

SPEAKER_01 19:43

I didn't know anybody back home in in Harrisonville, and I had been at in Lebanon, Missouri as a public defender, and that wasn't my home. And that was, you know, just a job with the public defender. Um, so I certainly wasn't going to stay at the Lake of the Ozarks, which is where Lebanon, Missouri, that was the district that I had when I was the district defender. Um, I certainly was going to come back home. And then I kept my costs super low. I stayed six to nine months with my parents, started renting space for $350 a month. It was so cheap. And um I cashed out my retirement, which wasn't very much as a public defender. I'd saved very little, but enough to go buy a I went to Sam's Club, got a computer, got a printer, and started.

SPEAKER_02 20:29

So at what point were you mainly doing or uh or were you doing a majority of criminal defense work?

SPEAKER_01 20:35

It took me some time. It took me several years. I, you know, family law is an area of law that there is not there's not enough lawyers doing it, but there's plenty of people needing those types of lawyers. And so those people would walk in the door, they would call me, they would call my mom. How do I get a hold of Kim? You know, um Facebook started in 2008, 2009, being, you know, social media, people reaching out to you, but otherwise it was just grab a phone book and call a lawyer, and and people knew I was back in town in my hometown. And so um, and I had the benefit of my mom working at Walmart. If you go to Walmart in a small town, everybody knows everybody, and everybody stops and talks to the lady who works the thing that passes out the free food. That was my mom. And so everybody, everybody knew I was in town. So she was my, you know, advertising, free advertising before I could get into the phone book, because then you had to wait till the book was going to be published. So you had to wait, I think I had to wait six months at least before I was in the next edition. Um, but family law was just easy to get those clients. And so there was a time when I was doing a little bit of everything, not everything, but just family and criminal, the things I knew how to do, traffic tickets. I'd go to other lawyers and they'd say, Well, What do you want to do? And I tell them, and they go, Well, we'll give you if they didn't want it, we'll give that to you. And family law was one of those easy ones that people sometimes really didn't want.

SPEAKER_02 22:10

Right. So, at what point did you start dealing with DWI defense in earnest? Is that what you call it in Missouri? And and getting involved with the National Uh College of DUI defense.

SPEAKER_01 22:21

I started doing well, immediately once I was in private practice, DWI clients would find their way to me. And I immediately realized that this is a hard area of law. I didn't know it very well. All of my training at the public defender had been on how to, you know, defend people in serious crimes. And DWI was treated as a glorified traffic ticket. You know, like there's not much you can do. Trust the breath test and trust the breath.

SPEAKER_02 22:50

Of course, there's stuff you can do.

SPEAKER_01 22:52

But back then, there was uh not a lot of weight given to it. Because your client, I mean, when you're a public defender and you've got a client looking at the death penalty or LWAP, life without parole, comparing that to the person who's looking at two years probation in the maximum jail six months on a first-time DWI offender, they're they're just not treated the same. The the training's not the same, everything. So in me as a lawyer, if I had those both those cases on my desk, I'm giving the client who, you know, they the young kid facing uh life in prison much more attention than the other client. And so I found myself having the clients, but not knowing what to do. So I'd reach out to friends who had been in private practice doing DWI defense, and I'd start learning. And then some of those, and then I'd start going to the Missouri Association of Criminal Defense Lawyers anyway. I ended up getting on the board. Um, I walked into a meeting and it was all white men. I literally said, Where are the women? And they put me on the board because I asked that question.

SPEAKER_02 23:54

And and so I asked the question.

SPEAKER_01 23:57

That's right. They thought that's what I meant. No, I was just wondering where are the women, but I'll okay, I'll join. And then um, but there were two people on the board, or at least one person on the board who was very active in DWI defense here in Kansas City and was deemed as one of the best, and he was my idol and and and became my mentor. And then he, another man ended up joining the board who was his uh best buddy from St. Louis, and they would do these seminars together on how to beat DWIs, how to beat the Department of Revenue on these driver's license cases. And because of my connection with MACDL, I started attending their programs. And uh the first one I did was a few years out, uh, I don't remember what year, but I do know that that was the thing that tried that finally started giving me the skills of oh, I can win, I can beat a breath test, I can beat, I can cross-examine a cop on. Oh yeah. I started learning. And then uh, and the way I got involved at the National College for DUI Defense is one of my friends and mentors here in Kansas City reached out to me and said, Hey, there's this program called On Metrology, which is the science of measurement, uh, the National College for DUI Defense is doing in Atlanta. Will you go with me? And I said, sure. So I went, and all I realized was, oh my God, this is very hard science.

SPEAKER_02 25:16

Yes.

SPEAKER_01 25:17

And to this day, a good lawyer will look at a DWI case and realize that's harder than trying a murder case. It's it you to be a DWI defense lawyer, you have to uh learn so much more science and memorize and learn the manual that the police are using on DWI detection, which is the NHTSA manual, as you know, the National Highway Traffic Safety Administration manual. Learn all the training that the police receive in DWI detection to learn how to cross them. Anyway, um, so we went to Atlanta to and I realized I don't know a lot. There's a lot I don't know. So I got more involved in National College for DI Defense. I went to another program that they did in, I can't remember which one, but I believe it was Mastering Scientific Evidence in New Orleans, was the second one I went to. And then my name crossed paths, Betsy Um Green, who's on the faculty of trialers.

SPEAKER_02 26:12

Oh Betsy.

SPEAKER_01 26:13

She was working with a TLC graduate by the name of Andrew Mishlove, who's a fantastic, amazing DWI defense lawyer out of Wisconsin.

SPEAKER_02 26:20

I interviewed Andrew.

SPEAKER_01 26:22

Andrew was had created, he was on the board for NCDD. He had created this program that he wanted to um teach other lawyers the science of blood testing, yes, the alcohol and the drugs. And you do it at a laboratory in the University of Texas at Arlington. He the professor Shug there opened up his laboratory in the summer to NCDD, and now we have an amazing program called Serious Science. Well, Betsy taught it one year, and Andrew reached out to her to teach it again. And Betsy does uh personry work, she's a civil lawyer, right? And she apparently she said, I wasn't privy to the conversation, but apparently she said to Andrew, I will not teach this program. But there is a DWI defense lawyer with TLC training who's on the faculty who you need to talk to, Kim Benjamin. And that's how I got really involved with NCDD, because then I started doing that every year, and it's me and Paco Duarte out of Seattle.

SPEAKER_02 27:20

Yeah, Andrew has praised him.

SPEAKER_01 27:22

And Andrew and um, and then a lawyer who's not TLC trained, Joe St. Louis out of Arizona, and the four of us are on the faculty consistently every year.

SPEAKER_02 27:33

Well, because I want to talk about persuasion, we haven't been doing a lot of that, so we'll get back to the NCDD. I want uh to talk, for instance, perhaps about that uh two-week employment discrimination trial you did a few years ago and got a multi-million dollar verdict. And if you could talk a little bit about uh what you did with uh trial or as college approaches with that and what you did with just stamina for two weeks. Now, you know, some people watch them must might be saying, yeah, two weeks that's nothing. I've done, you know, six months or one year, not me, but other people, you know, multi-conspiracy cases. I've I've done trials that have, you know, lasted, you know, in close to two weeks. But uh if you just address all those things.

SPEAKER_01 28:16

Well, the wonderful thing about my experience was that I was not alone. Um, I had a friend walk into my law firm and say, Kim, I think I've been discriminated against. And I connected her with another lawyer who was good friends with my brother, who was working at my law firm at the time and is a lawyer as well. Um and this lawyer brought in yet another lawyer who um those lawyers, those two lawyers, the first lawyer was Charlie, and Charlie brought in Kevin. Charlie is an employment discrimination lawyer, but he wasn't the trial lawyer. So he would bring in Kevin to try the case. So it started with me. And I had always said, I want to try civil cases. So Kevin and I became really good friends. We started to work in the TLC method together. Uh, his law partner, Eric, had been working with me for a long time with trial or his college skills in my local working group. Even though he'd never been to TLC, he was interested in being a better lawyer. And I was very active. We used to have monthly meetings for my local working group. So my connection to Kevin and his law partner, Eric, at the time, um, was all through trial lawyers college work. And it just was happenstance that Charlie brought Kevin on to try this case. Well, Kevin reached out to me and we became friends. We started preparing this case together. And so my two weeks was thankfully not all me. That would be terribly exhausting. It was not, it was so invigorating. It was so every day was exciting. Um, I we split the trial up, Kevin and I, and we worked, we prepared it TLC style, meaning I we would have the local working group get together. I brought in the client, I worked with her, I directed her, and then ultimately I did her direct. That was Kevin said, that's my weakness. You do direct. I'm like, sure, that's actually one of my strengths, even though as a criminal defense lawyer, cross is usually your strength. I have through the TLC method, I have become like where I love direct examination, and I've put on many clients in the criminal defense world because of it. Well, so I prepared her with the group, and then I um prepared my opening. I was doing opening, he was doing void dire. We did some practice voidir trialers college style, where you roll reverse as a juror and work on voidir uh topics.

SPEAKER_02 30:35

Or your jury selection for those who aren't lawyers.

SPEAKER_01 30:38

Oh, right. Voidir is jury selection, and then opening statement. I practice my opening statement, and I'll never forget because my first run in opening statement is always where I throw everything at it but the kitchen sink because I've written it and so it has to be edited. And I'll never forget my first TLC style was um Kevin was like, Oh my god, that is too long, that's too much. He was just like apoplectic, he was so upset. I'm like, I know this is that's my first run. Trust me, I edit, and I was having to direct myself because no one on the faculty or no one TLC um trained was really working with me. So anyway, I um opening was fantastic. In fact, ultimately it got to a place where Eric and Kevin, Eric in particular, remember saying to me that was one of the best openings I've ever seen. And I did a little bit of reenactment that we teach at trialers college, but mostly I was just taking story, the way we teach it, the find the villain, find um the trust betrayal relationship, and start with that. Don't start with the my client, woe is me. My client, you know, had a terrible thing happen to her, him. I started with the bad guy, essentially, the villain of the story, and how there was this trust relationship, and how it was there was a betrayal and there was a harm, and now our client was the one who suffered the harm because of what they did. And that's fun, especially in a civil case, because I feel like you're prosecuting the bad guy in a civil case, and so it's natural in in storytelling. So that was fun. And I remember I did the direct of our client. So and it was she was like crying on the stand, she was very emotional, and they were trying to.

SPEAKER_02 32:23

What was her employer? And what what ex what discrimination did she face specifically?

SPEAKER_01 32:29

Yeah, it was ATT, and it was one of their retail stores.

SPEAKER_02 32:32

Oh, was that the one where where the uh the store was across the street from you and several of the employees came over to visit you?

SPEAKER_01 32:38

Yeah, we had seven employees that came through my friend who worked over there. Uh, it was a retail store literally across the street from my law firm. And they uh it was age or race discrimination or both, depending on the story of each one of these seven individuals. And it was reverse race discrimination, and so it was very unusual, but yet there were some pretty obvious statements made that were heard by many people about I'm not hiring any more old people out loud, you don't, you know, and I'm not um hiring any more old white people, was said by these two young black female managers. And instead of ATT saying, you know what, I'm sorry, let's give some training, let's work on relationship, let's work on mending this, they dug their heels in and defended these women, and then these women defended themselves. And then lo and behold, in our trial, the they put an expert on the stand to try to say that our client's story wasn't that bad. She had some psychiatric issues as a result of her treatment, and and she had had a death in the family as well. So they just tried to say she's malingering, all of her problems are because of the death in the family. And when I was cross-examining TLC style, I was cross-examining the expert witness that they'd brought in, and I was looking at my jury and talking to my jury and crossing this witness by you know, telling the story of my client. And at one point, one of the jurors looked at me and does this, and I was like, Oh, that's okay.

SPEAKER_02 34:14

So that was the trial where you got the thumbs up.

SPEAKER_01 34:16

Yeah, that felt good. That felt real good.

SPEAKER_02 34:19

Wait, wait, that was that thumbs up before or after the verdict came?

SPEAKER_01 34:23

Oh, that was before that was while I was cross-examining the psychiatrist who came in from St. Louis to say that our client, you know, is all malingering. Um, but it it was a it was a very fun experience. And and thankfully, Kevin, the man I was working with, is a very talented trial lawyer. Uh, and he, you know, is just a gem to work with. So it was a great experience.

SPEAKER_02 34:47

Okay, so you say you have put uh clients on the witness stand for criminal defense cases just as I do. So can you give an example or two of your successful approach to doing that with uh TLC approaches and maybe NCDD approaches as well? I don't know if NCDD really has helped you doing uh preparing your client's testimony, but at least TLC approaches.

SPEAKER_01 35:10

Yeah, because I was gonna say NCDD, your client almost never testifies in a DWI, even though I had a felony DWI where I did put my client on the stand.

SPEAKER_00 35:18

Right.

SPEAKER_01 35:18

Um how I would prepare, I've got three cases, you know, four cases in mind. Shake and baby case. I had my local working group get together at least twice, once at my home and once in Springfield, Missouri, because we would travel from Springfield, Columbia, Kansas City, and St. Louis, because we had TLCers all over the state. And so we did every meeting moved. And we took my client to two meetings where um he was directed, and I stood back and didn't direct him. And once where I directed him to for reenactment, for telling his story in that shake and baby case.

SPEAKER_02 35:57

And when I put him on the directing is with the psychodrama.

SPEAKER_01 36:01

Yeah, I used psychodramatic techniques to get him to really be present in his body, present in his story, present tense, reliving what had happened, which unfortunately what had happened was he had dropped his child, his baby, off his lap. It was back in the day of iPods, and he was trying to hold his baby while in the basement where his computer was, plugging his iPod into his computer to download music. And when he was doing all of this, the baby fell from his lap and he hit its head on the basement floor. Um, and so he, you know, to bring him back to that moment, bring him back to how he reacted, what he saw, what he felt, what he heard, how his baby was fine, and then the baby wasn't. All of a sudden the baby started reacting and it took some time, which is very common in these cases. Um, but I got him ready to testify through reenactment of dropping his baby. So it was, you know, and it was hard because while it's not necessarily emotional for me, and we need him to emote and be present and feel it, this was a very traumatic experience for him. And thankfully he was working really well with his family and uh and other support people to deal with it. Um, but he felt horrible for what had happened and he was, but he was willing to go there and show the jury. So I was able to reenact in my opening what had happened. He was able to reenact what had happened in his direct and talk about, you know, we had the 911 call, which was very emotional. Um, his treatment at the hospital, my client was black, his girlfriend was white, the baby appeared to be white. They couldn't, they did not know the child was black. When I um I took a depot, we get depots in Missouri. I took a deposition of the treating physician. I started asking her questions about medical conditions and other things that could affect the child. And there was one of them where I asked about something where she said, That is we normally see that in the African American community. So no, we didn't look at that. And I said, Wow. I stopped her and I said, Did you not ever meet my client? She said, No. Did no one ever tell you he's black? And her eyes got real big. I was able to use that. That was a killer in my cross at trial. Um, it just I got him ready to testify. I got another client ready to testify by driving her to Dairy Queen for ice cream cones. I did my entire direct of her while driving my car. She was a young girl accused of child endangerment. And our defense was not that she was not guilty, it just wasn't it wasn't a felony. Our defense was she was negligent in the babysitter she hired, who then abandoned her baby in the middle of the night, and then the baby's screaming, and the neighbors call the police because my client had gone out to have fun with what she thought was a responsible babysitter. And we were arguing the decisions she made, and what happened was negligence, not recklessness. Anyway, I got her ready to testify just by secretly interviewing her. She didn't understand I was doing a direct, but that was how I did it.

SPEAKER_02 39:18

And that was that that was a witness. That was not your client.

SPEAKER_01 39:21

No, that was my client.

SPEAKER_02 39:22

That was your client preparing her testimony, driving into Dairy Queen.

SPEAKER_01 39:26

Driving to Dairy Queen to get ice cream, yeah.

SPEAKER_02 39:29

Now, now, of course, I take it you did some more preparation other than that, but maybe that was a defining moment doing that drive to Dairy Queen.

SPEAKER_01 39:36

That was a memorable moment because she didn't know what I was doing. Yes, you were all done. I said, You realize I just prepared you to testify. And she's like, No.

SPEAKER_02 39:45

Um and this this is what this is what strikes me about those lawyers who believe you got to keep the arm, not us, right? Not the people who go to trial lawyers college, keep an arm's length from your your clients, you know, uh, don't visit them at their homes. And what what did Jerry say to me when I was at the trial lawyers college? Jerry Spence said when I when I told him about a murder trial that was coming up for me, where I'd won a uh a retrial where another lawyer had done the case, and I got a finding of ineffective assistant counsel for not calling a uh witness who would have testified that there was a handgun in the uh decedent's dip. Uh, and therefore it was could have been a self-defense argument for my client. Jerry said, So where's your client right now? I said, He's still being held without bond. And Jerry said, Are you gonna visit the home of the home of the defendant? I said, Hell yeah, maybe even stay overnight there and get to understand what he's about. He said, Absolutely.

SPEAKER_01 40:39

I have been to many, many homes of clients, and it's very helpful because then you're not just understanding their story as they sit in a in an office, and that's never going to be the same story you get when you really get them into their home and their comfortable place to tell their story and to talk to their family and their witnesses and out in the world, not in an office.

SPEAKER_02 41:04

Now, I've seen you or heard you speak about using trial or as college approaches as well, not just for trials, but for negotiations and and other things. Can you talk about that?

SPEAKER_01 41:18

Sure. Um negotiating with prosecutors or talking to judges, uh the TLC skills to me are invaluable for pausing and thinking of how can I roll reverse with this person to understand where they're coming from so that I can connect with them. Because to me, negotiation is a mutual understanding, but really trying to just be curious, which is also you know, void dire or direct examination when you're interviewing witnesses, direct examination witnesses on the stand, it's being curious and and so just role reversing to understand what they might need to hear, feel, see, smell, whatever, to get them to where you want them to go. Yeah. And another really good source for me has been Christopher Voss's book. I listened to it multiple times and it's the uh never split the difference.

SPEAKER_02 42:19

Okay.

SPEAKER_01 42:20

He I forget if he was CIA or FBI, but his job was negotiating with terrorists, kidnappers, and that kind of thing. And his book is brilliant on how to negotiate. Um, so lately, most recent that's within the last year or two that I've listened to that book. Um but TLC has really allowed me to listen better.

SPEAKER_02 42:45

Yes.

SPEAKER_01 42:46

Just today I had a very good meeting with members of my team where they were talking to me about some frustrations and concerns and different things that, you know, normally would be confrontational or negative. And I'm the owner, so I have to own it. So I I just really listened and didn't try to defend, didn't try to uh solve it, you know, problem solving. I slowed down and I was like, I'm processing, and I would tell them that like out loud. My silicy was I'm I'm I'm hearing you, I think I'm hearing A, B, and C. Um, I'm processing it. I I'm wondering what next steps might look like for some of these issues you're bringing up as we process through them together.

SPEAKER_02 43:29

I'm gonna get to that in a second because I want to address what you're talking about with uh you know, convincing, you know, persuading people outside the courtroom. Uh for me, it was in the courtroom, but it wasn't trial yet. Well, here's just an example. And um my client was accused of fondling this real estate agent's breast when she was coming over to his home, I guess, to maybe set up for uh selling it. And uh my client perhaps was so drunk that he was allegedly doing this outside for the neighbor to see it. So I walked. Up to the neighbor. It was a bench trial date, and the neighbor was very clamped up. He said, You know, just go talk to the prosecute. I'm not going to talk about the case. I said, Okay. I said, by the way, I mean, this is just totally the moment. I empowered him to talk to me further or not. I said, You have this amazing calm about the way you talk. Oh my gosh. That opened up the floodgates. He's he wouldn't stop talking. He said, I got that from my grandma. She was as calm as the most still waters, and you could see the twinkle in his eye, remembering his grandma, who probably didn't live anymore because he was in his 50s, and he just wouldn't shut up. He was ready to even talk to my case. He asked me what I want to know about the case. What do I want to know about what he saw? To the point where once I found everything, he wouldn't stop shutting up. He wanted to keep talking to me. He felt totally engaged with me to the point where I came to the point almost just saying, Enough already. I got to go to get to my other stuff. Yeah. It's amazing just to empower the other person and say, okay, you are empowered not to talk to me about the case. Uh, but you know, by the way. Well, the beauty that that grateful dead pin you have reminds me of my only Grateful Dead concert I went to, for instance, and have them just talk on and on about the Grateful Dead concerts they've gone to and then want to talk to me about the case, perhaps.

SPEAKER_01 45:21

The beauty of what you did was that you threw out the agenda of let's talk about a case, and you just looked at the person with curiosity and interest about who they are.

SPEAKER_02 45:33

Right.

SPEAKER_01 45:33

And that's what opened the floodgates, so to speak, is that you connected on something completely unrelated to the case.

SPEAKER_02 45:40

And that's what I was interested in at the time. I had no agenda in speaking to them about that.

SPEAKER_01 45:44

Yeah.

SPEAKER_02 45:45

So let's get to get to you by the team then. You have four four lawyers who are doing criminal defense at your law firm. And how many of them have gone to the trial or as college?

SPEAKER_01 45:55

Two of them have gone to the trial lawyers college, um, Craig and Megan.

SPEAKER_02 46:01

And uh, so what's that dynamic like then? With uh you're you're trying to help them motivate themselves. Uh, where there are two who've been to the trial aura's college, and the other two have they gone to any of the trial auras college programs at all, even any of the weekend programs?

SPEAKER_01 46:18

No, two. There are recent hires. One um is a an attorney closer to my age, but she did family law for years. And so she's just been doing criminal defense work for us for a short time, and then the other one just graduated law school and passed the bar last fall. Uh, so the if they have any TLC knowledge, it's through how we work in the firm or work on cases.

SPEAKER_02 46:45

And and are you doing that kind of training in-house that includes uh trial or as college approaches? For instance, Chris Floor, who you probably know, who's over in uh Maryland, who just joined the uh uh the faculty recently. Is that is that what they call a faculty or whatever?

SPEAKER_01 47:00

Faculty staff, either way.

SPEAKER_02 47:01

Once once a month for over the last yeah, staff, eight, eight or ten years. One Saturday morning a month. Uh he does it, he does a TLC approach uh uh trawlers gathering. And I think he started that when he had an associate and he wanted to teach him those those approaches.

SPEAKER_01 47:18

I did that for years where I headed a local group, like I said earlier. All of we moved a lot in Missouri to different locations based on um you know where people were that wanted to participate. Um and we do, I I don't remember when, but we've had at least two meetings where we brought in the non-attorney staff and the attorney staff for two trainings. And I so I don't remember if Will and Jennifer, the other two lawyers of the firm, have participated, but non-attorneys have certainly because they're they're better than the attorneys at being real and authentic to not being a lawyer when they're playing the juror role. Um and that what I mean by that is we ask people to get out of your lawyer head, quit analyzing the facts and the case and the law, and just listen to the story, whether we're working on voidier or we're working on an opening statement or working on a witness's uh reenactment to discover the story and prepare them to testify or whatever. Anyway, we've we've done that a few times, but not on a schedule like that. I haven't done that in a long time.

SPEAKER_02 48:25

Since you've had lawyers working for you, can you give an example of a lawyer who just clicked and worked really well in uh defending uh clients the way that you liked it? And do you have an example?

SPEAKER_01 48:38

Maybe someone who were just the it the the transplant didn't take or or the transition didn't take the transition didn't take, meaning they didn't try the TLC method, or they didn't No, they just they they just didn't work out, they bombed.

SPEAKER_02 48:53

I haven't maybe that never happened with you. Maybe you you were just too lucky.

SPEAKER_01 48:57

I haven't had anybody bomb at it. Um, I've had attorneys that there was an attorney who came to work for us, um who left shortly thereafter, but that wasn't about TLC, that was more about he just didn't love 100% criminal defense work, it was just not his passion. Um and so he went to do other things. But um like Craig and Megan on the team who've been to Trial Lawyers College uh are both they love TLC and Craig has gone back to the graduate programs, I believe, twice now. Um Megan, I send Megan to and Craig both have been to National College for DUI defense programs because learning the skills and the knowledge of the science is really important, really important. And so we do um a lot of that kind of training too. And they're all participating in the DWI seminar here in Missouri, which is this coming up week, actually. We leave in a couple days for it.

SPEAKER_02 50:01

And do you have an example or two of succeeding in integrating the uh trial or's college approaches and the NCDD approaches?

SPEAKER_01 50:12

I have seen my uh the lawyers on my firm have all gotten the bug and the passion for helping clients, whether that means help them succeed in whatever treatment program they need to succeed in or help them win the case. Uh and I've all of them have taken on that passion of if I can win this case and save this client from this heartache, this uh this punishment that could be life-changing. And in particular, I've seen them fight for dismissals, but also sometimes it's fight for the best plea possible. And they all seem to be very good at being compassionate and empathetic, understanding that sometimes you know, the prosecutor has all the power, the prosecutor has all the control and we walk in often powerless. And so doing the best we can to connect with that prosecutor, connect with that judge if it's a motion hearing, for example, or a sentencing hearing, um, to figure out how to get the story across in our negotiation skills. Because for me, I think, like you said, you had a moment where you connected on a non-case related topic with a prosecutor. It the same is true for how do we get the story of our client out.

SPEAKER_00 51:38

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.