Painting Pictures through Facts | Matt Dodd

Joining us this week is an expert in cross examination, Attorney Matt Dodd. In this episode, he lays the groundwork for telling a story through facts, breaking down the how-tos and whys behind the art of asking questions. It’s a great listen for lawyers and non-lawyers alike looking to improve their communication and persuasion skills. 

While cross examination, or questioning adverse witnesses, is often thought of as a time for poking holes in the government’s theory, Matt tell us we should see cross as another chance to illustrate your theory and speak on your client’s behalf. It’s a chance to paint your client’s story by establishing facts and empowering the jury to agree with your conclusions. If you’re interested in diving deeper into these techniques, be sure to check out Matt’s book Cross Examination for Depositions.  

Whether it's using constructive cross methods or showing appreciation to court staff, Matt reminds us we should always lead with decency and kindness. We hope you enjoy. 

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Transcript

SPEAKER_00 0:00

Because when we're cross-examining it's it's one more chance for us to tell our client's story. I mean we get to tell it in opening. We sometimes get to tell it when we're selecting a jury, we can tell it in closing. And on direct, when we're when we're using our witnesses, we kind of know what the story is gonna be, right? Because there are our witnesses. But when we're cross-examining, it's a it's one more opportunity to tell our story and not be locked into the story that the state wants to tell, that the Commonwealth wants to tell, that the federal government wants to tell. We're telling our client's story through their witnesses.

SPEAKER_01 0:47

Matt is a cross-examination expert and part of the royal family of criminal defense. Today he gives us the lowdown on how to use cross-examination to build sanctuary for your client. As he says, cross-examination is another chance to speak on your client's behalf, a chance to show their story fact by fact, and empower juries to agree with your conclusions. This bowtie lawyer brings his southern charm wherever he goes, reminding us that we should always lead with decency and kindness. Whether it's using constructive cross methods to build rapport or showing appreciation for court staff and prosecutors, Matt finds success with please, thank you, and plenty of Girl Scout cookies. This episode is perfect for lawyers and non-lawyers looking to improve their communication and persuasion skills. So join us as we lay the groundwork on telling story through cross. Hello. Welcome back to Sanctuary in the Jungle. We're here today with Matt Dodd. Thanks for coming here today, Matt.

SPEAKER_00 1:50

Oh, happy to be here. I appreciate it.

SPEAKER_01 1:51

Yeah, you're coming all the way from Montana, is that right? Yes, sir.

SPEAKER_00 1:54

Yeah.

SPEAKER_01 1:54

Matt's a practicing attorney out there. It's snowing here in Hudson, Wisconsin, and I was uh complaining about the snow. And then how much snow have you guys got recently?

SPEAKER_00 2:03

Uh we got almost 20 inches last weekend at my house. Wow. So you're living up in the mountains over there, right? We are. We're real lucky. Yeah. Yeah.

SPEAKER_01 2:10

Beautiful views, huh?

SPEAKER_00 2:11

Uh yeah, we are. I just have to walk outside and then you've got them all around.

SPEAKER_01 2:15

Well, wonderful. We're looking to get uh your views on all kinds of other things today, and I'm sure those will be beautiful as well. So uh tell me a little bit about yourself. You start you grew up uh outside of Montana, is that right?

SPEAKER_00 2:26

I did. I grew up down in South Georgia uh in the 80s and 90s. Um loved growing up there, but very, very different from where I am now.

SPEAKER_01 2:33

Yeah, how so?

SPEAKER_00 2:34

Uh good and flat. There were no mountains around. Uh so you could see the tree line, and that would be about as far as you could see.

SPEAKER_01 2:41

Yeah. What did you do with yourself when you were uh a young kid growing up in Georgia?

SPEAKER_00 2:44

Uh I think I grew up like most of the kids down there hunting and fishing. Uh we got out on the water as much as we could through the summertime, and then uh lucky enough to chase my dad around courtrooms all over the south for a lot of my growing up.

SPEAKER_01 2:56

Yeah, so you've had a different uh childhood than a lot of the other guests that we've had here, or maybe people watching it is your your dad's a criminal defense lawyer as well, is that right?

SPEAKER_00 3:05

He is, yeah. My dad's Roger Dodd. Uh so I was lucky enough to have him as a mentor, still have him as a mentor. Uh, in fact, we're gonna go work on a case two days from now.

SPEAKER_01 3:14

Yeah, you just said from here you're flying out to go meet him, is that right?

SPEAKER_00 3:17

It is, yeah. We're lucky enough to get picked up in another state, and so we're gonna go go help somebody out there.

SPEAKER_01 3:22

Yeah. So I've never met your dad, but I've certainly read about him. His his book is behind you there. Uh the you know, the the cross-examination book, Posner and Dodd. I've read that many a times. And so I was trying to explain to our producer Anna, uh, just kind of the the royalty that I I consider you to be, right? You're part of the royal family or a Hall of Fame, Hall of Fame locker room.

SPEAKER_00 3:45

You maybe the jester of that royal family. I don't know.

SPEAKER_01 3:48

Yeah, what was it? Because I mean I I think of it as like, you know, uh Ken Griffey Jr., you know, grew up in the locker room following around all these other professionals. It sounds like you had an equivalent or similar thing in the law field.

SPEAKER_00 4:00

I mean, it was fun and it still is. Um you know, I told you last night I've got a senior partner who will always pick up the phone for me.

SPEAKER_01 4:07

Yeah.

SPEAKER_00 4:07

Uh, you know, he's got hundreds of jury trials, you know, worked on death penalty cases uh early in his career, has done civil work and family work and criminal work for I think he either just did or just about to roll 50 years on it. Oh wow. Uh which is amazing. Yeah, you've got this resource that most folks don't have. Absolutely. Um I think it is not I think, I mean it was intimidating for a lot of years. I I didn't want to get into law because I figured I wasn't gonna be Ken Grafe Sr. Yeah. Um I wasn't gonna get as many at bats, I wasn't gonna get as many many trials, and um, you know, i for good or for bad, he cast a big shadow. Yeah, he's a big presence in my life and in the in our profession.

SPEAKER_01 4:47

And I imagine there's some privilege that comes along with it and some pressure that comes along with that.

SPEAKER_00 4:52

Yeah, a little bit, for sure. Uh and it's great. It opens some doors that probably never would have opened. Okay. Um and so I'm real, real thankful that those, you know, I've had those opportunities. Yeah. I mean, I always kind of joke with people that I think even if the door is open, I still gotta walk through and not get myself thrown out. Absolutely. Um, but it's been really nice that it gives me a little bit of credibility, right, off off the go sometimes that other folks don't have.

SPEAKER_01 5:14

Yeah. So you were a kid, you know, you weren't just joking around. You like literally would tag along and go watch cases with him. Oh, yeah.

SPEAKER_00 5:21

I mean, you know, I'm sure he didn't take me to any of the heavy stuff, and and I'm sure there's lots that I missed. But I mean, I remember sitting with my little yellow pad in the back of the courtroom next to the bailiff, and it was a small town, Georgia, so they know me and they don't move there unless you need to go to the bathroom kind of thing. I'd sit there and he'd come collect me at the end of the of the lunch period or at the end of the day. Yeah. Um yeah, it was it was it was different, it was fun, and I I kind of got to see how he interacted with people and how he treated people and you know, how juries and judges treated people.

SPEAKER_01 5:52

Yeah. So I grew up uh my father's big influence in my life. He he uh ran a service station, a gas station. So I worked there, uh got my hands dirty, not as dirty as he did. He was doing the real heavy lifting and and the dirt, but I got a chance to see him interact with other people. Yeah, and uh much like the work we do, people go there because something's not working. That's right. Something needs to get fixed, and somebody needs help. And it was uh as I've grown older, you know, I reflect back on that and just the opportunity to see my dad help people. Was that something for you?

SPEAKER_00 6:31

Absolutely. Um I mean he that's all he did was help folks. Um and in our town and in the south, then that time, I mean it was still very segregated is not the right word, but there's definitely a black side of town and white side of town. Uh and he was super comfortable moving over to that other side of town and helping those folks, and they welcomed him in because he helped the folks. Yeah. Didn't matter what color you were, didn't matter if you had money or not. Uh if you're accused of something you needed some help, you know, he'd help you. Okay. Uh which was really pretty neat to see that, you know, where I grew up, when I grew up. You know.

SPEAKER_01 7:07

Yeah. Was it uh is the story from you about there was a different phone line set up, even like he'd give his phone number out, but he had another he had a he had a special phone. Was it the bat phone in the house?

SPEAKER_00 7:18

Those are the days, right? But he had landlines, and so we had one in the kitchen for us on the big 20-foot extension cord. And uh he had one uh off to the side in his office that was just for him to pick up, so clients or judges or cops or whomever could call him. Because we live in a small town. Um, you know, it's 40,000 people, and and we live literally right next door to the county attorney.

SPEAKER_01 7:38

Okay.

SPEAKER_00 7:38

Uh his his son was also named Matt, and you know, Matt and I would play together for years and years growing up. And uh and and I didn't realize this at the time. I really appreciate it now, but uh I know now that he my dad uh Roger and Lamar Cole, the county attorney at that time, had cases against each other constantly. And they had death penalty cases against each other. And they would still, if they saw each other in driveway, hey Roger, hey Lamar. They're both polite, they're both respectful of each other. And they might not have hung out in the evenings, but we've lost some of that that that just being people to each other, being respectful of each other. And even if we don't agree, even if we're represent different sides, we can still be human to each other. Yeah. Um, and that's pretty cool that now I can look back and say, oh my gosh, I don't I don't know how he did that, but he did.

SPEAKER_01 8:29

Um so it seems like your path is pretty well established, you know. Dad's uh Roger Dodd, you know, you're gonna go to school and uh go in uh you took a little different path though.

SPEAKER_00 8:42

I did, I took a little bit of a detour. Um I was all set to go to law school right after college, I'd taken the LSAT, I just figured I'd you know slot right in. But it took a year to go skiing in Montana. That year turned into almost a decade. Uh and then I finally got back to school. So I'm I'm I'm glad I took the detour. I think I was a better, more well-rounded person by then.

SPEAKER_01 9:01

Yeah.

SPEAKER_00 9:02

Um, but it it it took a little while for me to find find my way back to the courtroom.

SPEAKER_01 9:06

Yeah. And you ski instructor and other other adventure uh items during that uh 10-year break.

SPEAKER_00 9:13

I did. I was lucky enough to ski teach in Montana and Germany. Uh, got to travel to New Zealand and ski bunch. Uh, and then I was uh worked for a travel company, which is where I met my wife. And we were lucky enough to travel all over the world and uh see some things that I had you know never thought I would have seen.

SPEAKER_01 9:29

Yeah. So uh then you went to law school in the mountains still?

SPEAKER_00 9:34

I did, came back to Utah um uh to to go to school and worked out well. It was a little cheaper than where I'd was thinking I was gonna go, and I could still ski on the weekends, and occasionally in the mornings there was a lot of powder and a class wasn't super important. Um it let me stay kind of grounded even through law school. I remember that's that's a tough time. Yeah. Learn a new language, dealing with a bunch of people, some whom a lot of whom were smarter than me, and you know, trying to figure all that out.

SPEAKER_01 10:03

Yeah. So we're gonna get back to kind of your career, but now now as you sit here now, you know, in 2025, been a lawyer for you know 15 years so. Uh tell me how how your practice of law, uh what you learned from skiing, being a ski instructor, right? What how does that fit in with now as you look back? Because me as a I I you dabbled with some soccer coaching at a time. And there's definitely some connections that I've now made in my head. Have you made any of those with kind of life lessons from skiing to to law?

SPEAKER_00 10:38

Uh you know, I think with both of them I'm lucky to get to do the things I do, because not everybody gets to do that or has the ability to do that. Um but beyond that, I think you know trial work is similar to skiing in that you gotta be flexible, you gotta be adaptable. Because you can plan for all you know what you think are all eventualities, and then something will something will sneak up on you. Sure. There's a rock in your path, the prosecutor comes out with a document that, oh, they just found a few minutes ago. Whatever it is, and and you can't stop, you have to keep moving. Uh you don't get to hit pause most of the time, whether it's skiing or in the courtroom. Particularly if you're in front of a jury.

SPEAKER_02 11:17

Yeah.

SPEAKER_00 11:18

You know, when I was ski teaching, I'd have people say, Oh, you look so smooth out there. Like, I it didn't feel it felt anything but smooth. I mean, it was all I could do just to stay on the path, let alone you know, give you this demonstration I'm trying to give. And in front of a jury, I I I'm I can say for myself, often I am terrified or there's something that I know has gone horribly sideways or is about to go sideways, but you can't show any of that. You just sit there with a neutral look or with a smile, or you know, you walk up to a bench conference and the judge rules against you on an issue you should have won ten times out of ten, and you walk back with a smile so the jury sees that confidence and figures things oh, okay. I guess it broke his way.

SPEAKER_01 11:56

Yeah, exactly. Matt won that one.

SPEAKER_00 11:58

Yeah, you know, and so I think you know it is a bit of show, uh, both of it. Yeah. Uh and it takes a lot of hard work to to make that show look smooth and and even and and do right back.

SPEAKER_01 12:12

Imagine imagine a a Georgia kid going up to Montana your first couple of times down the mountain. It wasn't uh didn't look natural esque.

SPEAKER_00 12:21

It was not natural at all. I was the I was the worst skier on our ski school. I was 164 out of a roster of 164. Wow. On day one, I I took a fall and and had a yard sale and blacked my eye and bloodied my lip, and that was how I started day two as a ski instructor. Uh when I finished, I was number four on a roster of 200 and some, and uh couldn't get any farther ahead unless a couple people died out ahead of me. Uh but it was a lot of work and a lot of time and a lot of repetitions and a lot of days on snow. Uh just you know, just like what we do.

SPEAKER_01 12:57

I was gonna say, I imagine uh even with your, you know, as I'd say, royalty background, you know, your first day in court uh maybe you didn't have a yard sale, but you maybe stumbled. It wasn't as natural as it is now.

SPEAKER_00 13:08

Oh, I remember my first day in court. I uh I I didn't have any clients, didn't know how I was gonna make any money. And an older lawyer, Chuck Watson, very, very good lawyer, um who was nice to me and and took pity on me. Called and said, Hey, you want a client? And I said, Yes, sir. He said, Put a suit on and meet me at the courthouse in an hour. So I did. And I got there and and I looked around for Chuck and couldn't find him, and he wasn't anywhere. So I walked in the courtroom and there he was at one of the uh benches in the gallery and motioned me over, and he said, Here's your client, here's your lawyer, and he walked away. Didn't tell me what the case was about, didn't tell me anything about it, didn't know even what I was doing there. And so I introduced myself to the client and just terrified, and and he was nice enough to me. And uh Judge called his case and I walked up, and Judge said, Which one are you is a lawyer? And and at the time I went beat red and said, Well, Judge, I am, and and uh in retrospect, I know that meant the client was dressed right for court, and yeah, you know. I wish somebody would do that to me now, but um I will never ever ever forget that. I was t just terrified.

SPEAKER_01 14:15

Oh well, all the viewers want to know that first day when he says throw in the suit, did you come with a bow tie?

SPEAKER_00 14:21

Uh I did, in fact. Wonderful. Wonderful. And uh my wife got me onto those when I was clerking.

SPEAKER_01 14:26

Okay.

SPEAKER_00 14:27

Um, and I remember the first day, it took me about three hours to tie it, and uh I was very, very angry. And then I realized I liked it because it wasn't in my way. Yeah, yeah. And so now I don't get it in my food, I don't get it in my papers, I put it on in the morning and don't have to think about it anymore, and it's on until I go to bed.

SPEAKER_01 14:42

And now it's just who you are.

SPEAKER_00 14:44

Honestly, it is, and and there are clerks that will refer me out. Like, go talk to the bow tie lawyer, he'll fix you up.

SPEAKER_01 14:50

There's worse things that we could call than the bow tie lawyer.

SPEAKER_00 14:53

Yeah, that's right. That's right. I think it's it's worked for me. Uh people laugh, but I'll tell you one little story. I walked in, um walked into the courtroom one at one morning, and I was I'd been practicing a few years at that point, but I was still nervous. And uh we had a jury that morning, and the jury uh was in the little in the box, just ready for four dire. And the clerk comes over and she says, Mr. Drogg, come here. And I walked over to her and she was an older woman, very, very nice. And uh, Miss Karen said, Your bow tie's all she fixed my bow tie for me. I said, You're fine, I'll go back to your table. And I did, and I just smiled, and the jury I looked over and the whole jury box was just smiling at me. And I was okay then. If she liked me, then they liked it. Absolutely. So now every time I go into court, I'm like, uh so that somebody will hopefully fix my tie for me. Um because I'll take every little bit of help I can get.

SPEAKER_01 15:45

Yeah, right. I mean, there is something to be said for uh vulnerability. I mean, and because that's really what it was, right? I mean, you you didn't come in there perfect.

SPEAKER_00 15:54

No, shoot, not us too, especially on our clients.

SPEAKER_01 15:57

Yeah. And so not only did you not come in there perfect, but you were humble enough to accept accept some aid, to accept some help. I don't know that she'd have given me a choice, that's sometimes, yeah. That's all right, though. That's all right. Um so I know you are uh certainly uh a humble man, you know, you're very sincere, but you're also a national expert when it comes to cross-examination. You've just finished presenting for NACDL. I know you have in the past for NCDD, uh DUI, DLA, lots of different organizations, and you have your own cross-examination uh workshops that you put on. So tell me a little bit about that. How'd you become uh expert at cross-examination?

SPEAKER_00 16:41

Shoot, I I mean my dad jokes that I'm an expert by osmosis. Um just because I heard it my whole growing up, I got cross-examined every time I came home from anywhere. And I wasn't that popular, so I didn't have that many dates. And if my wife's hearing this, she'll probably tell me I had no dates. But you know, I get cross-examined when I came home. And uh but again, I was lucky enough to to be able to go out and and try that and then call him and say, hey, here's a transcript. What do you think? What what could I have done better here? Or I think about this, and uh and then I've been lucky enough to to teach and coach with him the last, I don't know, dozen dozen or more years. Yeah. And that's been really fun. And then I've gotten to do a bunch of coaching and teaching on my own and lecturing on my own. Uh, and then work with other folks like you and others just out and around the country. And so I'm learning from other people as I'm teaching other people. Yeah. Uh and that's that's I think pushed my ability, pushed my career farther than anything else. I mean, I I was on a phone call with a public defender uh last week and she was asking about something. I said, you know, I I know a little bit about that, but I here's who you need to call. And she said, Wow, your network's really big. And I was like, Well, yeah, that's I mean, when I'm traveling, when I'm teaching, when I'm coaching, that's what I get to do. I get to meet all these wonderful lawyers and learn from them. And and then I can have somebody like, oh, I've got a case, and I my client also is charged in Wisconsin. Who do I call? I can call Aaron. Um, I mean, that's it's it's yeah, I'm I'm lucky because I got to learn from so many good people and still get to learn from so many good people. Sure. Um, but it and it's really fun going out and teaching and coaching. I love coaching people. Um I love being able to help people figure out what's your goal. Okay, let's figure out how we get there.

SPEAKER_01 18:19

Yeah. So let's unpack a bunch of that because we haven't, you know, uh most of our audience, you know, the hundred or so people that listen to this.

SPEAKER_00 18:28

102. Both my both my staffers are gonna listen to it. Wonderful. It's always good to be.

SPEAKER_01 18:34

Uh improve our our audience background. But uh some of them may not know necessarily aren't lawyers or aren't with law degrees, right? And so just really basic, like cross-examination. If you were you're just gonna simplify it, what is what's a cross-examination?

SPEAKER_00 18:47

It's just asking questions to the other person's witnesses. Yeah. So if we're talking criminal cases, it'll often be the cop that we're cross-examining. It might be the medical examiner or a a states expert. Uh it might be the witnesses, because usually in our criminal cases, witnesses are not good for us. Sure. Oftentimes witnesses are co-defendants.

SPEAKER_01 19:05

Trevor Burrus, Jr.: Citizen witnesses of some sort.

SPEAKER_00 19:07

That's right. It's people who saw what happened. Yep. Or it might be the victim or the alleged victim if if if there hadn't been a conviction yet. And we're talking to people who have accused our clients of very, very bad things.

SPEAKER_01 19:19

So when you're, you know, what I think of is typically adverse witnesses. I know we'll get into it and sometimes maybe we can make those adverse witnesses our witnesses. That's right. But uh you're going into a scenario in which you're asking somebody who's adverse to your to your goals. Yeah, yeah. Some some questions, right? That's right. Uh are there just some general things that you think about as like in general, when where I'm going into this situation where I need to try to get some information, some facts from somebody who's adverse to it, what do you do?

SPEAKER_00 19:50

Uh and I think that's you you hit the nail on the head. You're you're looking to get facts from them. They don't agree with you, and you know they don't agree with you because they're witness for the other side.

SPEAKER_01 20:00

Yeah.

SPEAKER_00 20:01

The cops never gonna say, you know what, Mr. Nelson? You're right. Your witness, uh your client is not guilty. Your client didn't do that thing. I mean, you ever had that happen?

SPEAKER_01 20:09

He didn't look drunk.

SPEAKER_00 20:10

No, he didn't look drunk, or he didn't he didn't pull the trigger.

SPEAKER_01 20:12

Yeah.

SPEAKER_00 20:13

And so most of these people they don't want to talk to you. And if you're talking to victims, they absolutely don't want to talk to you. Sure. You're you're evil, you're the bad guy, you're the one trying to to help their their the person who hurt them.

SPEAKER_01 20:24

Yep.

SPEAKER_00 20:25

Um and so I think well when I'm in the courtroom, one of the things I think about is look, these are just people, and so I'm gonna treat them like people.

SPEAKER_01 20:33

Yeah.

SPEAKER_00 20:33

And so I will often tell my clients, you will see me smile at the cop, you will see me laugh with a cop, you will see me make jokes. Um and I do that for a couple of reasons. One because it loosens them up. It it it makes me more relatable. Yeah. Not just to the to the cop that I'm crossing, but to the to the jury. It makes me a person. Gives you some credibility. It I mean it really does. Um and and it allows them to relax. And if they relax, then I this sounds terrible, that I can control them. Sure. I can absolutely control where they're headed better than if they're defensive and they're cautious and they're nervous.

SPEAKER_01 21:07

And what's the i I think you just answered it, but in general, like what's the benefit of control? There's there's a purpose to control other than to just be like, you're a controlling person.

SPEAKER_00 21:16

Oh, sure. I mean, look, you know, uh I've uh I've been objected to on cross and say, I've had prosecutors say, Mr Mr. Dodd's testifying. I'm like, yeah, I am, a hundred percent. It took you ten years to figure that out, but that's exactly what I'm doing. Because when we're cross-examining, it's it's one more chance for us to tell our client's story. Sure. I mean we get to tell it in opening. We sometimes get to tell it when we're selecting a jury, um, or we should be telling it. We can tell it in closing. And on direct, when we're when we're using our witnesses, we kind of know what the story is going to be, right? Because they're our witnesses, and so we've heard their story and we know that it aligns with our story. But when we're cross examining, it's a it's one more opportunity to tell our story and not be locked into the story that the state wants to tell, that the Commonwealth. Wants to tell that the federal government wants to tell. We're telling our client's story through their witnesses. And if if the witness is relaxed, if the witness feels like, okay, I can talk to this person, or they just let their guard down, then it allows me, it gives me more control over that situation so that I can tell the story I want to tell, not the story they thought they were coming up to tell.

SPEAKER_01 22:20

Sure. And there's also, like you said, comfort, right? Because as we come there, uh I would imagine you've established your reputation amongst the professionals there in your community. But nevertheless, I'm guessing the cops kind of look at you, not necessarily side-eye, but like, what's Mac gonna do? Oh, I mean You know, you're not you're not they're not necessarily willing right away to just be open up. You ask them a question and you can see their gears rolling, like, uh, do I give them the answer that I think I have to give them, or is there some way that I can avoid this answer?

SPEAKER_00 22:52

Sure. And I I love it when we put them in that box, right? We paint literally paint them into a corner.

SPEAKER_01 22:57

Yeah.

SPEAKER_00 22:57

And you give me the answer I want, or you can give me an answer that's gonna make you look foolish.

SPEAKER_01 23:00

Yeah.

SPEAKER_00 23:01

Either one I'm gonna win on.

unknown 23:02

Sure.

SPEAKER_00 23:03

But it'll be easier for you if you just go ahead and give me the answer I want.

SPEAKER_01 23:05

And those are gonna be different with you with uh the times when we have either professional witnesses that just know it. They've been trained, they know how to do things, or oftentimes it's also professional witnesses, police officers who this isn't your first time crossing them. You've you know, you've crossed Barney Fife seven times now. This is time number eight, and he knows about the other seven times, good or bad for you.

SPEAKER_00 23:29

And in small towns like yours or mine, absolutely. Yeah, right. You have to repeat players, whether it's the the cops, whether it's experts, yeah, you know.

SPEAKER_01 23:37

And sometimes that can be helpful, right? I mean, they might know I gotta keep this tight because I know Matt, I know he can punish me, I know he's gonna not make me look bad if I just give him the answers that I need to give them.

SPEAKER_00 23:51

Yeah, and the other thing is, I mean, if if there are times when it's okay to let your your adverse witness save a little bit of face. Yeah. If there's ways you can give them to to give an answer where they don't their their conception of themselves stays whole. They don't feel like they're betraying themselves, uh you know, they're they're gonna be more apt to give you the answer you want to hear. They're gonna give you they're not gonna fight with you maybe quite as much.

SPEAKER_01 24:14

Sure.

SPEAKER_00 24:15

Uh and if you're still getting the facts you want, and that's what we're talking about, right?

unknown 24:18

Yeah.

SPEAKER_00 24:18

If I'm gonna ask Barney, hey, my guy's innocent, right? They're gonna laugh at me. But if I ask a bunch of questions and I establish a bunch of facts and I collect all those facts up and all those facts together to shout innocence, then great. They have they felt like they did right by themselves and their department and their prosecution. But I've got all the facts that I need that I can try it out on cl on close and say, folks, you heard from the cop, A, B, and C and D. You heard everything. You know, that screams innocence.

SPEAKER_01 24:49

Yeah. And that's really that's story-driven cross.

SPEAKER_00 24:52

Yeah.

SPEAKER_01 24:53

I know recently when you spoke at Nactile, it was on opening, which to me is just story, story, oh yeah, story. That's right. But when we give that story an opening, we need to pull those facts out in cross in order to tell that story.

SPEAKER_00 25:09

100%. Because, right, what is I mean, your judges say the same as mine. Everything you hear from the lawyer, that's not evidence.

SPEAKER_01 25:14

Yep.

SPEAKER_00 25:15

That's argument. And you know, if you get that objection in opening, and I don't know, there are some of those prosecutors that will object in your opening. Uh, and they'll objection, you know, that fact's not in evidence or some nonsense like that. And you're like, yeah, I'm gonna get there. Yeah. No shit. Like, we haven't got to that point yet. But in in cross, we gotta we get to tell that story. We get to pull all those facts out. And we get to have the the witness confirm the story that we're telling. Yeah.

SPEAKER_01 25:42

Maybe you said this at in in NACTA, but I've heard you say before, like you look at your trial work and maybe cross-examination, right? But you look at your trial work as teaching.

SPEAKER_00 25:50

That's exactly right.

SPEAKER_01 25:51

Yeah, tell me a little bit more about that.

SPEAKER_00 25:53

Yeah, so I mean, when we go in, typically the this is our client's first time to tell their side of the story. Um and we go second. They've already heard from the prosecutor, right? They've already heard the story, and it's usually a bad story. It's a story that's not helpful to our client.

SPEAKER_01 26:10

Yeah. If it was good for us, we wouldn't be here.

SPEAKER_00 26:12

That's exactly right. But I mean, even before we get to trial, we're teachers, right? We're trying to teach the prosecutor why this is a bad case to bring to trial. We're trying to teach the prosecutor why this is a case that should get settled or dismissed. We're trying to teach the judge, if we can't convince the prosecutor, that this is a case that should never see the light of day, that should be dismissed, that should lead to suppression of evidence. That's what we're doing the whole way through, is we're teaching excuse me, and I mean we're persuading, but we're doing it by teaching, right? I mean, if I just tell you my client's innocent. You know, I was talking to a prosecutor the other day, and uh he's a newer guy, and very nice young man, and he said, I really appreciate the emails you send because you tell me why I should dismiss the case. Yeah. You don't just send an email that says this case should be dismissed.

SPEAKER_01 26:57

Your case sucks. Get rid of it.

SPEAKER_00 26:58

Yeah, and he I said, people send you that? And he's like, Yeah, all the time. And you know what I do with that? I delete it. But I send him a couple of paragraphs and I'm saying, hey, you need to look at this piece of evidence. You need to look at this witness statement, you need to look at the conflict here. Because when you do that, you'll see that what I'm asking for is actually pretty reasonable. Uh it's not at all unreasonable that you give me this deal. Yeah. Or that you give me this dismissal, that you treat my client the way he or she should be treated. Yeah.

SPEAKER_01 27:26

I mean, I think I've heard you say we learn through facts, not conclusions. And you know, even when you're te talking, you have a couple kids at home, right? I do. Uh I imagine there's sometimes that you're uh in a situation where it might be good for you if you teach your kids something.

SPEAKER_00 27:41

Yeah, a hundred percent. I mean, my boy child is just as hard-headed as he can be. And if I just tell him don't do that, you know, he's gonna ignore me about three quarters of the time. But if I tell him don't do that because of A, B, and C and D, you know, he might listen to me. Yeah. You know, even when we're skiing around, I say, Don't jump off that cliff, you know, you're gonna hurt yourself. He said, It's fine, I've done it before, it's not that big. And then I'll go poke around the landing and I'll say, Well, there's rocks six inches below the surface. You hit those rocks, you're gonna rip your skis off, and you're gonna cartwheel in the distance. And there's trees down there you're probably gonna cartwheel into. And he's like, Oh, okay. Um and we have to do the same thing with our jurors, right? Yeah. I mean, it seems so self-apparent to us that our client's innocent or that they should come back not guilty. And if we're doing our job well, I think we have convinced ourselves wholeheartedly by the time we get to trial that I don't even know how this got here. Because that's how we have to, you know, if we don't believe it, then how are we gonna ever get anybody else to believe it? But they're not just gonna believe it when we say not guilty.

SPEAKER_02 28:40

Correct.

SPEAKER_00 28:40

We gotta give them facts. Uh and I talk a lot about this with judges in the in the in the in bench trials or in motions practice. I think judges kind of come in one of two ways. They either come in, they've already made their mind up because they've read the briefing, and so you know, you need to give them facts to change their mind, or if they're gonna rule for you, to then, you know, buttress their order.

SPEAKER_01 29:02

Yep.

SPEAKER_00 29:02

Or if they come in and they're they're open-minded, uh, you know, the way we hope all judges are, then you got to give them facts to to sway one way or the other. Because they're not just gonna take the fact that you're you know good looking or you're put together and you know you're usually on time. Yeah, yeah. They need facts to drive this.

SPEAKER_01 29:18

They need something more than a bow tie.

SPEAKER_00 29:20

They need something more than a bow tie, that's exactly right. Yeah.

SPEAKER_01 29:23

So these stories, right? We want to tell these stories. I think analytically, we think of them often as theory. So theory-driven cross-examination is one of the things that I know I've learned about in your in your book, in your dad's book, and and talking to you about it. Tell me a bit in our listeners, what's theory-driven cross-examination?

SPEAKER_00 29:44

Yeah, so we talk about theory-driven cross- or or the narrative of cross-examination is just literally telling your story through your cross-examination, telling your client story through the adverse witnesses.

SPEAKER_01 29:57

Okay.

SPEAKER_00 29:58

Because in criminal cases, we we might not have witnesses. The only witness we might call is our client, and a lot of times we don't want to call that person because they're not going to help tell their story.

SPEAKER_01 30:08

Sure.

SPEAKER_00 30:09

And and we know that because oftentimes they've told their story. And their story led to handcuffs, their story led to an arrest, their story led to a prosecution. Or at least the way they told their story. And so it's on us as as practitioners, it's on us as teachers to go in there and tell the story that our clients couldn't.

unknown 30:26

Yeah.

SPEAKER_00 30:27

For whatever reason, because they weren't articulate, because they weren't educated, because they didn't know how to tell their story, because they were scared.

SPEAKER_01 30:35

So theory-driven cross is to get out our theory. Yeah. Um, but also about purpose. What i mean, I've heard you used goal directed, right? I mean, our are there might be you can't get your whole theory out with Barney Fife, you might need to also get it out with a different witness here or a different witness there.

SPEAKER_00 30:55

Yeah. So what did you say earlier, let's unpack this a little bit. Yeah. So and when we're talking about a theory, right, we're talking about the the reason, the kind of the what, or sorry, the why or the the how of of our case. Why should the jury care? What can they do to help? How can they help? Uh why should they find our client not guilty in the criminal context? Uh and we have to help them understand that. And if we can establish a theory, if we can, you know, and and in criminal cases, theory is kind of easy at heart. My client's not guilty because, yeah, fill in the blank. Um, and and the part after the because is much harder.

SPEAKER_02 31:35

Yeah.

SPEAKER_00 31:36

Right? But once we figure out, okay, that's why my net client's not guilty, that's why the jury should rule this way, that's why the judge should suppress this piece of evidence. You know, whatever it is that we're looking to get accomplished, then we can figure out, okay, who's going to tell that story now? How do I get those facts out? And if we don't have our own witness, we have to do it through theirs.

SPEAKER_01 31:54

Yeah. And there's certainly, you know, we don't need to get into the the techniques, but right? But that is what what your your sweet book is what we teach. It's all about the techniques about that, but it's driven by what's the purpose? What is, again, yeah, the purpose of the theory or the purpose of that witness or the or the narrative that we're wanting to tell.

SPEAKER_00 32:15

Yeah, and I think if we don't know that, it's really hard to then know how to cross-examine.

SPEAKER_01 32:19

Sure.

SPEAKER_00 32:19

So I remember helping a uh a gentleman years ago out of uh Nevada, and and he said, Hey, this is just kind of a regular car wreck case. It's not you know super complicated, but and we're gonna cross-examine um uh this person. I said, Okay, great, what do you want to accomplish? What's your goal for this witness? And they didn't they didn't know. They didn't and I said, huh, I should probably figure that out. And I was like, Yeah, we need to know what we need to get or what we want to get out of that person before we then structure the cross.

SPEAKER_01 32:46

Yeah.

SPEAKER_00 32:46

And so figuring out, like you say in your example, like, all right, what's Barney gonna tell us? What piece of the story is he gonna tell us? Yep. Because he's not gonna know the whole story. No, he's gonna know, you know, maybe a lot of it, but maybe not all of it.

SPEAKER_01 32:57

Maybe not, not all the pieces, yeah, absolutely.

SPEAKER_00 32:59

And so we figure out what's our goal for this witness. Yeah.

SPEAKER_01 33:01

And I know we can get again into some really dial it down at the bottom end of the funnel techniques, but even if we just say at the top end, right? Sometimes I've heard you use the term constructive cross, destructive cross. Tell me about that, what maybe is a tactical choice in order to get some of those facts there. What is that?

SPEAKER_00 33:23

Sure. So when my dad Roger and Larry Posner, who's also a big knackle guy, uh started writing about this stuff in the 80s, uh, and then into the 90s, they talked about constructive and destructive cross-examination. We've, I think, of all that even in the last 10, 15 years, uh, my dad and I, but destructive cross-examination is kind of what they taught us in law school. And so that for those of you who have been to law school, you'll remember we're attacking their theory, we're attacking their witnesses, we're undermining their theory, undermining their witnesses the whole time. That's what we're doing. We're trying to chip away at their their case, their theory. And I think the problem is while we're doing that, we're focused on their theory. Sure. We're not telling our clients' story, we're talking about their story. And I don't know that that's as helpful, right? Because now the jury's heard their story twice. Yeah. Versus hearing an alternative theory or an alternative story. Because often our our theory is it's it's an alternative.

SPEAKER_01 34:19

Absolutely. You need to present something up there.

SPEAKER_00 34:21

Something other than just nu-uh.

SPEAKER_01 34:23

Yeah.

SPEAKER_00 34:24

Because nu-uh is not a great argument strategy.

SPEAKER_01 34:27

Uh I think that's from uh my cousin Vinny, right? The beginning of everything he said that guy said is bullshit.

SPEAKER_00 34:34

Yeah. That's what we want to say, right? Absolutely. Uh that is a great movie, by the way, for you younger lawyers who haven't seen it, you should absolutely watch it. I make my mock child kids watch it. I think they say fuck like 20 times, which I realized after a parent emailed me about their high school kid watching that movie, but it's there's a lot of true to life in that movie.

SPEAKER_01 34:53

So even just a uh I know you uh you do the whole gamut of defenses of criminal defense, right? And I know you do some family law, but you also have a national reputation for your defense uh in DUI cases, OWI cases, drunk driving cases. And so I think of that in perhaps a what are some simple facts in a everyday drunk driving case field sobriety that you're gonna pull out like a constructive cross rather than my client didn't do this, didn't do this, didn't do this, my client did something positive.

SPEAKER_00 35:26

Sure. And and so I think that's a great example you give us, Aaron. When you when you teach in the negative, when you're talking about not or didn't do, it's hard, nobody learns that that way, right? We we learn by the positive, so we talk about all the good things our client did do.

SPEAKER_01 35:40

Yeah.

SPEAKER_00 35:40

And so you can use the cop to talk about that. Sir, you followed my client for five miles before you lit him up. Yes, sir, I did. And in that five miles, he he he he but stayed in his lane. Yes, he did. He drove the speed limit, yes he did. Used his blinkers, yes he did. Had his headlights on, yes he did. Car, no, his car was was the way it should be. Um and when you turned on your blue lights, your red and blues, he immediately tapped his brakes. And that let you know that he knew you were there. Paying attention. That's right, it was a safe thing to do, it was the right thing to do. And when he pulled over, he pulled all the way off to the shoulder, and that was a safe thing to do. That was the right thing to do. It put you in a safe spot. Put your the whole interaction in a safe spot. And you can really use the cop to build up your client. If you want to do it, you can even kind of turn it into a contrast cross where you start contrasting between what your client did and what drunk people do.

SPEAKER_01 36:41

Absolutely, right? Because if you do it in the negative, you're really creating the picture of what drunk people do.

SPEAKER_00 36:46

That's right.

SPEAKER_01 36:47

Yeah. My client, he didn't weave. Yeah. But what do we as an audience see in our head?

SPEAKER_00 36:53

It's like when you go to the store, right? And you tell your kid you're like, don't ask for treats. That's the example my dad still gives, and I'm almost 50. And he still talks about it. I'd go to the store and I'd be like, All right, we're here for steak, don't ask for treats. And the first thing my brother and I would do is like run to the candy aisle. Uh because he said treats. I mean, we were like little dogs. Absolutely.

SPEAKER_01 37:11

Absolutely. Um go get some fruit might be a better thing to say, right?

SPEAKER_00 37:16

Yeah, it probably wouldn't work on us, but yeah, that would have been a better approach.

SPEAKER_01 37:20

So, you know, when I, you know, obviously we're here, it's sanctuary in the jungle, right? And oftentimes cross-examination isn't something that I think most lawyers or even the public would think of as a sanctuary-esque. How do you think if at all theory-driven cross or constructive cross helps with you to think of a sanctuary?

SPEAKER_00 37:41

Oh God, it's it is the ultimate sanctuary for good lawyers.

SPEAKER_01 37:45

Okay.

SPEAKER_00 37:45

And it's the ultimate sanctuary because I've got control. I have the microphone. I don't have to rely on anybody else besides myself. Uh and that sounds very self-centered and kind of egotistical, but uh again, for you lawyers, think about this. When you have clients on direct, you're hoping they're gonna say the right things. Yep. But we've all asked our client a question that we've prepped on dozens of times, like, hey, what were you doing last Saturday? And they're like, uh I mean my dad still tells a story about his client who couldn't remember his name. Uh and me personally, I remember I was helping a good friend uh on an adoption. He and his wife had adopted uh a little baby, now a young man. Uh and in Montana, you have to answer like six questions to get adoption. One of them is like, How long have you been married to this person?

SPEAKER_01 38:36

Okay.

SPEAKER_00 38:37

And I asked him, I said, All right, how long have you been married to so-and-so? And he looked everywhere in the courtroom but at me. And his wife points at a ring from the table. And uh, I guess she had his uh the their wedding date inscribed on the inside of the band so he would never forget. And so he literally had to slide it off. And he's like, Oh, you know, 14 years. And so even though I mean we I literally sat at his kitchen table the night before prepping that question, saying, hey, there's five questions you have to answer. That's it. Um and he's awesome and he's really smart, but in the moment he couldn't get those words out. Sure. Um and on cross, I don't have to count on the witness to know anything.

SPEAKER_01 39:18

Make it easy for the witness.

SPEAKER_00 39:20

That's exactly right. You know what they need to know how to do? They need to know how to say yes. And and I'll I'll tell you what, I was at a lecture uh five or ten years ago, and I was gonna cross a cop for a demo, a former cop, and we'd prepped a little bit and he got sick and couldn't make it, and so the organizer's scrambling, and she turns and says, Hey, you were a cop for a long time. And he said, Actually, I was a uh officer at the Royal Canadian Mountain Police, but yeah. And uh, can you do this thing for Dodd? And he said, Yeah, that's fine. And she said, Do y'all need a room to go prep? And he said, No, I don't need to know anything. Dodd's gonna tell me all the facts I need to know. My job's to say yes. And I was like, he's right. We're gonna get along great. But that's right, right? We're up there testifying. And so it is a sanctuary because I can rely on the prep that I've done. I can rely on all the hard work I've done, I can rely on my knowledge of the theory. I can rely on myself, and I don't have to count on the witness to know the facts. I don't have to count on the witness, whether it's mine or an adverse witness, to give me the facts I want. Sure. Because I've chosen the facts that I'm gonna present.

SPEAKER_01 40:20

And you know the way that you've asked the question, they're gonna say yes.

SPEAKER_00 40:23

Well, and I know the way that I've prepped the story to tell. I get to structure the story, the way I organize my chapters, the way I organize as the pieces the way I organize the pieces of my cross. So I can bring the story out, maybe not in in uh uh you know, typically typically prosecutors will tell their story from start to finish, just the traditional method, chronological method.

SPEAKER_01 40:47

Yep, linear, very just very linear.

SPEAKER_00 40:49

And and oftentimes the linear or chronological method is not good for our clients because it makes them look real guilty.

SPEAKER_01 40:54

Yep.

SPEAKER_00 40:55

And so I don't want to start there at the beginning. I might want to start where the cop finds the gun in somebody else's hand.

SPEAKER_01 41:01

Absolutely.

SPEAKER_00 41:01

Or what do you tell me uh uh that case you had where the drugs were in somebody else's bra? Yeah, that's a great place for the drugs to be. Not my client's pocket, they were in the driver's bra. Yeah, exactly. I might start there on cross because that's a really good fact for me. And we get to do that on cross. I don't have to rely on the way anybody else tells the story. Yeah, I get to tell my client's story the way I want it to be told.

SPEAKER_01 41:26

Uh good friend of mine, uh Jessa Nicholson, who was working on the case that the three of us were working on together, and I uh she passed, but one of the things that before she died that she'd taught me is to really think about things in a structure of before, during, after. And it's really changed the way I've practiced because I rarely, if ever, tell the story before, during, after. But it's exactly like you say, sometimes I start with the after. Sometimes I start with a before. Sometimes I don't talk about the during at all.

SPEAKER_00 42:01

During clients.

SPEAKER_01 42:02

During might not be the best, right? During is kind of messy. Yeah, right. But there's a lot that you can do with how you set up your cross in that sanctuary where you're gonna decide, here's what I'm asking you about right now. Sure.

SPEAKER_00 42:14

Absolutely. And look, you're gonna get drug outside that sanctuary, I mean, 100% of the time. I don't care how good you are at cross, you're gonna get thrown curveballs. But if you prep and you've worked hard and you know your theory and and you know where you need to be. Yep. Uh you know that goal that you asked me about before for that witness, then that's okay. If I take a hit, that's fine. I can ski over here a little bit and I'll swing back when I need to be. Because I know generally I'm heading down towards the lodge.

SPEAKER_02 42:40

Yeah.

SPEAKER_00 42:40

Uh and that's easy.

SPEAKER_01 42:42

Sometimes you're gonna avoid the icy patches, sometimes you might avoid it.

SPEAKER_00 42:45

Sometimes you're gonna hit them, and that's okay.

SPEAKER_01 42:46

Yeah.

SPEAKER_00 42:47

As long as you know your theory, cross becomes a lot easier. As long as you know your goal for your witness, cross becomes easier. Now, you know, what we talk about and what I teach a lot on is how to do that. You know, here's some tools that when you hit that icy patch, you can keep moving.

SPEAKER_01 43:01

Yeah.

SPEAKER_00 43:01

You know, it's not gonna throw you. Here's the things you can do ahead of the time. Tune your skis, you can get your you know, your physical right, you go to the gym, you spend your time putting your time in. Same way we do on, you know, lawyering, right? Yep. Spend time learning your theory, you spend time drafting your cross. I don't think I'm so fast that I can come in there and just cross off the cuff. Yeah, I can and I do it okay, but not as good as if you prepared. Nope. Never 100% of the time, no. Yeah. You know, I can be faster in the moment if I've done a lot of prep. I can be faster on the ski hill. If I've skied that run a thousand times, I know where the trees are. I don't have to think, I can just move.

SPEAKER_01 43:37

You've had a you've uh have a vision of the route, but you also know uh alternative routes if you need to get if you get into trouble.

SPEAKER_00 43:44

That's right. And so it doesn't mean I write every question out. It doesn't mean I write every word of every question out, but sometimes I do.

SPEAKER_01 43:50

Yeah.

SPEAKER_00 43:51

You know, I put stage when I coach for other people, I'll sometimes put stage notes into the crosses that I draft for other people. Because I'll get hired sometimes to draft cross.

SPEAKER_01 43:58

Tell me about those stage notes. Notes.

SPEAKER_00 44:00

So when we're asking questions, you know there are times you're gonna draw an objection. You're pushing right up to the line. And that's okay. You know, my dad still talks about being, you know, the an objection is just being like, hey, he ran out of bounds. Doesn't mean the game's over. Yeah. It just means you gotta start again. And you're a soccer coach, right? Yep. Ball goes out, you throw the damn thing back in. Yeah. Then you keep playing. It's a free-flowing game. That's right. And sometimes you draw the objection, right? Sometimes you draw that, sometimes you throw it out so that you can, you know, get caught back up. Whatever it is. But you know, and so when I'm when I'm helping other people draft cross, I'll say, hey, you're gonna draw an objection here. So when that happens, move to this and grab this book. Or feign surprise. You know, and so we're baiting that objection. Just like we might kick the ball out on defense just to let your the rest of your team get back to the ball. Um and so when I'm doing that, I might write in stage notes, or or if I want the the my uh the cross-examiner that I'm helping to really intimidate a a cop, for instance. And we're talking about the field sobriety test. You know, there's a 400-page, 500-page manual.

SPEAKER_01 45:05

Yep.

SPEAKER_00 45:06

You know who's read that? Not the cop.

SPEAKER_01 45:08

You have.

SPEAKER_00 45:09

Yeah, I have. Not since they went to the academy 20 years ago. And so I might write in there, move to the book. Pick the book up. And so they pick it up and start waving it around. And then after you kind of train them with it, after you've hit them on the nose with that book once or twice, sure. Then all you gotta do is kind of move towards the book.

unknown 45:24

Yeah.

SPEAKER_00 45:24

And I say, Mr. Dodd, if you're telling me it's in there, I'll believe you. I say, You sure? I believe you, Mr. Dodd. Okay. Now the cop has just given me credibility. Absolutely. Now the cop has told everybody in the courtroom that I'm somebody who's believable, I'm somebody they can count on, I'm somebody who's not going to mislead them.

SPEAKER_01 45:40

Correct. And if you're looking to the jury to say, this is the guy who's gonna guide us through the mountains, they're looking at you, Matt.

SPEAKER_00 45:46

That's exactly right. I mean, that you talked about that uh you know, I had a case a while ago, um, and in closing argument, there was a fact that I thought was very, very important, and the prosecutor was trying to diminish that fact, but anyhow, uh, she lost sight of that fact in the middle of her close and and and turned to me and said, Such and such? Like, ask me a question in the middle of her clothes.

SPEAKER_01 46:10

Oh, wonderful.

SPEAKER_00 46:11

And I said, Loud enough for the entire panel to hear. Beautiful. Actually, it was such and such. Beautiful. I was feeling pretty good at myself, uh, good about myself, right up until the point they came back guilty.

SPEAKER_01 46:23

Um Yeah, sometimes, sometimes even good lauring uh can't get around bad facts.

SPEAKER_00 46:28

But you know, and and that's what we're trying to do, right? We talk about teaching, we talk about guiding. We want the jury or we want the judge to know that we're somebody they can trust, that the facts that we're presenting are the true facts, the accurate facts, the unvarnished facts.

SPEAKER_02 46:42

Yeah.

SPEAKER_01 46:43

I've heard you talk about that in the in the kind of going back to to teaching through facts, right? Teaching through it is, and this is perhaps different than how it was when your when your dad was doing it, right? But you're giving the facts to the jury to empower them to make your arguments for you in in deliberations.

SPEAKER_00 47:02

Yeah.

SPEAKER_01 47:02

Tell me about that.

SPEAKER_00 47:03

No, I think it's one of the things I learned from my dad, actually.

SPEAKER_01 47:06

Okay.

SPEAKER_00 47:07

Um if you just pound on the table, innocent, innocent, innocent, and you know that's maybe one way to do it, maybe not the most effective way, because if if you commence two out of that twelve, then they're just gonna go back there and say innocent, innocent, innocent. And that's not enough. If you, on the other hand, empower them, if you give them facts, you give them ammunition, so when they're back there, they can say, well, what about this? What about that? What about this? You heard the cops say these four things. You heard the cops say the the the weed was in that other person's bra. You heard the cops say that other guy had the gun.

SPEAKER_01 47:38

Yeah.

SPEAKER_00 47:39

They then have things to argue on your behalf. Because, I mean, you know how it is, Aaron, you don't get to go back there and argue in the No, you don't.

SPEAKER_01 47:47

No, you don't, right?

SPEAKER_00 47:48

You know, for the lawyers and and I don't criminal lawyers do it some, plaintiff's lawyers do it a bunch, they'll use focus groups.

SPEAKER_01 47:54

Yep.

SPEAKER_00 47:54

Uh and y'all might do that in your practice.

SPEAKER_01 47:56

Done it a couple of times. I have not as much as I should.

SPEAKER_00 47:59

You know, uh but if you put jurors in that situation, then you can see behind the curtain a little bit. Yeah. You can you can get a sense of of what they're thinking about, what resonates, what didn't.

SPEAKER_01 48:09

If you're enjoying this episode so far, be sure to also check out Matt's book, Cross Examination for Depositions. Matt's book includes plenty of examples from criminal cases and gives you a chance to dive deeper into some of the techniques we've talked about. I've taught workshops on cross-examination for over a decade, and I've noticed that many lawyers still have difficulty constructing their chapters in a way that establishes the facts and feelings of their story. When we're in cross, we have to help the jury hear, understand, and feel the story. Mastering the chapter method is the best way to do that. If you want to get better at cross, you need to learn the chapter method. And this book puts you on the path to mastery. And you'd said, I know we talked a little bit about before, but just you know, to be there and to be your sincere self. And it seems uh perhaps I'm getting to be an old curmudgeony man here, but it seems like sincerity is a is a lost attribute. Certainly in the courtroom.

SPEAKER_00 49:14

Yeah, maybe so. I mean, look, right, it's a little bit of performance, but I always tell my clients, you're not gonna see me change a whole lot when I get in the courtroom. I'll get a little more excited, a little more animated, a little louder.

SPEAKER_02 49:24

Yeah.

SPEAKER_00 49:25

But not a whole lot different beyond that. Uh, because they expect to see like the TV lawyer come out, right?

SPEAKER_01 49:31

They expect to, I think I've heard you tell a story about where your client expected you to eviscerate eviscerate the the witness that was gonna cross. Can you tell us about that?

SPEAKER_00 49:40

Yeah, um, so this was a deposition a number of years ago, uh very contentious case. Uh they had been at it for a couple of years at that point, and and when we went for, I think the depot lasted like six hours. It was an all-day depot. And and um, but it never got ugly. It never got, you know, super adversarial. I mean, the the adverse witness, she was a little mean to me, but I never really jumped on her much. And but what I had was you know a 200-page transcript that was full of admissions, really useful admissions.

SPEAKER_01 50:12

All those facts that you're facts that I needed. Yeah.

SPEAKER_00 50:15

And the other lawyer recognized it, and I know that they recognized it because they were taking notes furiously the whole deposition. Um, but the witness never realized it. And at the end of the depot, she she turned looks across the table at my client and says, Is that what it feels like to be eviscerated? And I was like, What the hell is that about? So I walk out and I'm like, hey man, what the shell was that? And he's like, I might have texted her last night and told her my lawyer is going to eviscerate her today. And I was like, Well, shit, why would you do that? Uh he's like, well, you know, didn't give a satisfactory answer, but whatever, it's fine. The point was that she thought she was winning this exchange all day when really she was giving me facts that, you know, all the facts I needed. I got every admission I wanted.

unknown 50:55

Sure.

SPEAKER_00 50:56

And I see the same thing in my criminal cases. Cops think that they're not giving you anything. You know, I remember talking to a cop a number of years ago, uh, he was a very nice man. He and I get along now. We didn't get along for a couple of years after this cross, but um, it was right when the Me Too movement was kicking off, and he had stopped uh my client who was a young 19-year-old woman uh and accused her of driving drunk. And he asked her, said, uh, ma'am, will you do these field sobriety tests? Will you do these roadside tests? And she said, No, sir, my dad told me not to ever do them. I'm gonna uh decline. And she was real polite and real respectful, and he talked her into it. Oh. And and what we learned was that this young woman had left a Halloween party because she'd been sexually harassed by somebody. Oh she's already feeling kind of small. She's already she just wants to get home.

SPEAKER_01 51:45

She was a man in authority.

SPEAKER_00 51:46

It's 20 degrees in Montana. It's snowing outside. She has a uh costume on that was a little more revealing. Um, and so she's cold and she's scared and it's dark, and there's this guy with a badge, a gun, and a cage. And again, he's super nice, he's the nicest guy, but he persuaded her to do this, and so we talked about it a little bit on cross, and I said, No, sir, uh, you know what the Me Too movement is? I do. And and you understand that consent's a real big issue, and that's something we're grappling with right now as a society, yeah. And sir, you've heard the saying that no means no. I have, and you believe that? Absolutely. And if a woman told you no, you'd you'd you'd respect that. Well, I would. Well, now you didn't in this case, and we went down that path. And before he realized where we were, he was no backing down at that point, he was stuck there. Yeah, yeah. And I saw the red come up in his face, and he knew where we were headed at that point, but it was too late. He was committed, and I was committed, and we got all the facts we wanted that she had said no, and he didn't take no for an answer, and he kept pushing her, and he had a badge and he had a gun and he had a cage on the back of his car, and she's dressed uh in a in a way that wasn't very warm, and it was snowing and it was cold, and she was scared, and he kept going till she said yes, and well.

SPEAKER_01 53:02

That's not always okay. Yeah. It's rarely okay, if ever okay.

SPEAKER_00 53:06

And again, I lost the judge did not suppress all the evidence, shockingly. Uh, but you know, we were able to do that because we were talking about people being people, we were talking about those universal truths, we were talking about things that he did believe and and thought he held true.

SPEAKER_01 53:23

Yeah.

SPEAKER_00 53:24

Um and and yeah, just talking to folks and and doing a way that was non-adversarial, just like with that evisceration. I did eviscerator. Um just not loudly or uh overtly.

SPEAKER_01 53:37

Is the what's the saying about a thousand cuts?

SPEAKER_00 53:39

Yeah, we I got everything I needed. Uh and it took me a little while to to get the my client to understand that. Sure. Um but I mean that's what's so beneficial, and that's what's that's so beneficial about constructive cross. You don't have to have the best witness. You just you can use their witnesses and you can turn it on its head.

SPEAKER_01 54:01

And oftentimes in those situations, what I love about your story here about the cross of the uh officer is you're pushing past the paper. This is that cross wasn't developed by anything that you're gonna see on that police report, right? Those are universal truths that you brought because of your knowledge, your lifetime experience, you're just being aware of the world, how do other human beings see the world, and how does this witness want to be seen? Yeah, and you took all of that with what you had on the paper. Yeah, but you would have never got there if you didn't push past the paper.

SPEAKER_00 54:37

Yeah, well, I mean we've got to, you know, gotta be ourselves. And I think universal truce, like you said, that's that's so important. Rick Friedman, you know, wonderful plaintest lawyer. Yeah. Um, gives a lot of his time. He's just crushing on those roundup cases right now, um, all over the country. And and but beyond that, he's a just a very good lawyer. Uh and one of his books, Rules of the Road, they use it in the plaintest context that you're framing your case uh based on the rules of the road and sure how to how your client should have been protected and wasn't, or how the the defendants didn't do the things they were supposed to. But we can do that on the criminal side all day long. And yeah, we talk about universal truth, it in fairness, the probably the most universal truth.

SPEAKER_01 55:17

Absolutely. And oftentimes fairness we can debate about it, but the prosecution is somebody that maybe has their version of it and they can't see any other version of it. But their version isn't always the same as the 12 people in the community.

SPEAKER_00 55:31

Yeah. And so I think you're you're right, knowing your community, knowing, you know, not just being in your office, being out in the world a little bit as important.

SPEAKER_01 55:39

What are some other rules? Just I love the the thought of uh rules of the road, right? And how we can do that. I've tried to do that often with with experts, right? I mean, let's set up some rules for the expert because I'm not gonna cross the not gonna cross the expert in their own field. Sure. You know, they know more about that, but I might have some other rules about about bias, or I might have some other rules about fairness, or I might have some other rules about just thoroughness. What are some other rules that just in general maybe you apply sometimes with uh either in criminal defense cases or in particular DUI cases?

SPEAKER_00 56:13

Well, and I think you can you can use their experts for your benefit. Uh and so one of the ways uh big picture way I'll uh suggest is this use their expert to get out the favorable facts to your case. And then you can you can contrast or contrast the admitted facts versus their conclusion.

unknown 56:32

Okay.

SPEAKER_00 56:32

Because they're never gonna back off their conclusion, right? Yeah, yeah. Just like a cop's never gonna say, well, Mr. Nelson, uh in retrospect, I think your client is innocent. They they didn't drive drunk. But they they have to admit that you know they they did this safely, did they do that safely, they gave the license when they were asked, they got out of the car when they were asked it, they did all these things on the fields of right test right. They have to admit those facts.

SPEAKER_01 56:52

He walked here right, he walked here. That's exactly right. He stood up this way, he sat down this way.

SPEAKER_00 56:56

100%. And and witnesses in any case, whether it's criminal, civil, or or family, they have to do the same thing. Uh they have to admit facts or they lose credibility. And they're happy to admit those facts because they're they're gonna trot out their conclusion whenever they can. That's what they're paid to do. And you're never gonna get them off their conclusion. Nope. Because if you get them off their conclusion, then they don't have work the next day, then they can't feed their family. I mean, that's idiotic to think you're gonna you're gonna change their push their view.

SPEAKER_01 57:20

Yeah.

SPEAKER_00 57:21

You know, it it doesn't happen like that. But they're gonna give you favorable facts that you can then use against them. Now, in terms of of using those rules of the road, I think it's easier than people think. And here's what I mean when I say that. If you're looking at an economist, for instance, they have a stack of letters after their name. If you go look at the the organizations that the stacks of letters came from, whether it's PhD or whatever it might be, there's usually rules. There's either ethical rules or there's rules for how they do evaluation and forensic work. There's rules that either the lab puts out or that AFUS, you know, one of the organizations, uh American Forensic Toxicology, I forget. But there's but look at just look at the rules that govern their organizations that come with the letters they have after their name.

SPEAKER_02 58:04

Yeah.

SPEAKER_00 58:05

Just at a local level, you know, I pull the the policies and procedures from our local crime lab. Uh they've they just recently sent out a brochure to all the law enforcement agencies that say, for instance, um blood tubes should have this much blood in them. And I had a public defender call me and said, Hey, there's only half that amount of blood, but she hadn't seen that paper. I say, Well, then use this damn paper against them. Yeah, yeah. If they're out there publishing, they will only do it if it's got this much blood, and then they do it anyhow. Well, that's a problem.

SPEAKER_01 58:31

Principles aren't principles if you only follow when they're convenient.

SPEAKER_00 58:34

That's right. Um, so use their own rules against them because you know, people in government like rules, they like handbooks, they like manuals. Yeah. You have to spend time getting into their manuals, getting into their rule books. And if you gotta fight for them in discovery, then fight for them.

SPEAKER_01 58:47

And you can find some of the rules very specific, like you just talked about, like a certain level within within a tube. But there's also, I know I found some success perhaps in looking at their policies and procedures when it gets to really high concept. You know, like police have an ethical duty to protect the innocent.

SPEAKER_02 59:06

Yeah.

SPEAKER_01 59:07

There's a lot you can do with the duty to protect the innocent when your client is presumed innocent.

SPEAKER_00 59:12

And that's what you talk about as universal truth. That's probably the that's I'm absolutely gonna take that one too. But I mean, that's right.

SPEAKER_01 59:19

You you can all of a sudden you build the theme off of something that they weren't expected, and of course they're gonna they're gonna want to agree with it because you're reasonable, you're being fair, and they're gonna want to look, they're gonna want to, of course, say, Yes, I agree with protecting the innocent. Who's gonna disagree with that?

SPEAKER_00 59:34

I mean, that's a great way to lead off on your cross, right? Especially on a constructive cross.

SPEAKER_01 59:38

Yeah.

SPEAKER_00 59:38

Because who's gonna say no to that? And if they say no, we'll have a field day.

SPEAKER_01 59:42

Oh, yeah. You've got you've got your flow chart, and you it's rare that they're gonna go there, but you've you've got it loaded up if they do. Let's talk about that a little bit, you know, connecting with the client and kind of some of the motivations for the work that we do, right? I mean, you said growing up you got to see your dad help people. Is that is why are you here? Why do you do the work that you do?

SPEAKER_00 1:00:07

I I mean I I still really do like helping people. Okay. I think that's really important. And I think if we're gonna do this, I I almost said job, it's I think it's more than a job, it's a profession. I don't know that I I have the calling, maybe like some folks do, but I have the power to help people. I have the power to right some wrongs and to help people through this. Uh and it it's good, it feels good. I mean, you know, the ego side of me really likes that people come to me for advice and want my help. Um and and and and I know my family will laugh at that, but yeah, I like being the guy who knows the the answer.

SPEAKER_01 1:00:39

Well, at the end of the day, who amongst us doesn't want to feel competent?

SPEAKER_00 1:00:42

Yeah.

SPEAKER_01 1:00:43

You know, I mean that's a that's a real big thing in uh everybody's life.

SPEAKER_00 1:00:46

Yeah, I mean I own my ego on that, but I mean I like being able to help people. Um when things have gone wrong, just it was what two days ago I was in court and a woman came up and Judge said, Where's your lawyer? And she said, I'm not sure, Judge. And he said he looked at his thing and said, Well, I excused you, but I didn't excuse your lawyer. Thank you for being here. And he looked at his his paper again and said, This is the second time he's been gone, and she said, I know. And he said, Where's this case going? And he was not happy. He turned to the prosecutor, and about this point I realized what's going on, so I stand up. And this judge knows me and he's very respectful of the system. And he said, Mr. Dodd, you want to give her a hand? And I said, Judge, I'm happy to kind of have a quick recess. And um I walked out and talked to her and kind of figured out what's going on. Yeah, I said, All right, let me go talk to the prosecutor and walk back in and he said, Look, if she'll just do this, I'll dismiss it all. And I said, All of it? And he said, Yeah, I want to be done with it. I said, No problem. I walked back out and said, You got this piece of paper, right? And she said, Well, not with me. And I said, Where is it? And she said, Instead of my card, I was like, Go get it. Yeah, yeah, exactly. We walked back in and we got it worked out, and you know, we walk out and and I give her my card and say, Hey, if you need anything, just give me a call and I'll I'll let your lawyer know what happened so that everything's cool. And uh she said, Thanks. This was a really nice Christmas gift. I've been dealing with this for almost two years. Oh. And you know, it didn't, I didn't make any money, it didn't cost me anything, though, and and I got to help this person that just she was in the jungle. She was lost. She needed some help. And like you talk about that is my sanctuary, that's easy. And you're literally sitting in pews, just waiting. All I had to do was stand up. That's all it took was stand up and walk to the bar, and the judge gave me an opportunity.

SPEAKER_01 1:02:23

Yeah, and had you not, you'd have watched an injustice occur.

SPEAKER_00 1:02:26

100%. I mean, then it sent this poor woman home another two months, no nothing happening, and and the prosecutors willing to dismiss the the the it just hadn't happened yet. Sure. Um, and and and that's I got chewed out by a couple lawyers on the inactal website the other day, the lists are that'll happen. So I want to tell the story because I've been waiting for the right moment, and this is the right moment.

SPEAKER_01 1:02:47

Yeah, absolutely. Tell me.

SPEAKER_00 1:02:48

So I had another situation like that come up, and I live in a little small county, so the judges know me and they'll let me kind of help from time to time. All right. Same kind of thing, and and I walked up and the prosecutor said, Hey, just do this and we'll do this. And and uh and I walked out and said, Hey, thanks, man, I really appreciate it. And he's a good prosecutor and a reasonable, fair person. Sure. And so I put a a note out to the list server that just said, Thank your prosecutors, figuring it, get people to look at it. Yeah, yeah. And I said, Here's why you should thank your prosecutors. Not all of them do right, and not all of them want to help our clients, but there are ones that want to do right, and there are ones that want to help. And when they do that, they need to be reminded that they did something good in the world. Absolutely. And that we are thankful for that, we recognize that and say thank you to them. And so I do that. I talked to an A USA yesterday, and she went out of her way to call me on her vacation, like over the Thanksgiving holiday, because she wasn't on email, but she saw my thing come through. And I said, Hey, I appreciate it. And she said, for what? I said, for being a decent person. And and I think it's really important for us to remind those of us on the other side of the bar that you know their job, they have an ethical duty to do right. When they do, thank them for it.

SPEAKER_01 1:03:55

Absolutely.

SPEAKER_00 1:03:56

And most people said, you know, I appreciate that. But I had a couple people say all prosecutors are assholes and this, that, and the other. And it's their duty, they need to do that anyway. Why should they keep thankfully? Actually, that's exactly what somebody has said. Yeah.

SPEAKER_01 1:04:08

But the reality is, is I mean, uh, I I don't know if they're I'm sure they have them, but you know, my wife was involved in treatment courts here. She was she was uh helped formulate and start up the treatment court, she was on the state uh treatment courts, she's won awards within treatment courts, she's just been really into that that and what she's told me through that, and I've learned not nearly as much as hers, that you need to reward the behavior that you want. Yeah, it's and that's so much of what we do, right? We're trying to prevent punishment. Yeah, because I'm saying, look, punishment doesn't work. Yeah, positive works. That's right, right? If that's what we how we want it with our clients, why wouldn't we model the exact same thing with the behavior of our of the prosecutors? Yeah, right. And I'm sure if there's any prosecutors watching this and they've ever dealt with me, they'd be laughing at me saying that because I'm I'm I'm I I need to do that more. I will admit that that I appreciate that reminder. I've heard you're willing to throw hand grenades from time to time. I've I've burned some bridges in my every now and then, and I but I can do better, you know, and there's nothing wrong with appreciating good work.

SPEAKER_00 1:05:14

Yeah, well, and look, and there are times to throw hand grenades. Like we fight against the government all day, every day. We get told no a lot. We get people that that won't even take the time to listen to our client's story. They say, What case number? Say, no, no, no, no. This isn't a case number. This is about a person, not just a case. Yeah, absolutely. Um, let me tell you about my client, the person.

SPEAKER_02 1:05:35

Yeah.

unknown 1:05:35

Right.

SPEAKER_01 1:05:36

I heard you, you know, you don't want to oftentimes prosecutors will maybe uh put our clients in a box. Yeah. I've heard you say that, right? Or how I think of it is they'll see us see our clients almost as two dimensional, just words on a piece of paper, as opposed to this living, breathing, complicated, complex human that has all of those feelings that you talked about love, hate, anger, all of this other stuff. How do we is it just as simple as you give them facts?

SPEAKER_00 1:06:03

I think you gotta tell the story and you have to find time. Um, you know, I talked about kind of technology being uh great that it brings us together, but it can also drive us apart. And it's easy to shoot an email off. It's easy to just leave a voicemail. It's harder to get in your car, drive across town, get on the prosecutor schedule, wait in the waiting room, then go talk to him and sit across the desk from him.

SPEAKER_01 1:06:24

Sure.

SPEAKER_00 1:06:25

And I try and make time to do that. I learned that from my dad a hundred years ago and try and do it whenever I can, especially when I'm in new counties, especially when I'm in from a new judge or a new prosecutor. Uh who's I talking to by this? You know, maybe it was even you, Aaron. The the judges are they have their little courthouse families, right? Yeah. And we walk in and they've been hanging out with the prosecutor all day. Um, and and not ex parte anything, I'm not casting any aspersions at all. But they just have a different relationship because they get to hang out with those people all day.

SPEAKER_01 1:06:55

Yeah.

SPEAKER_00 1:06:56

Uh and we're giving the judges isn't anything about this particular prosecutor, any anything about their office. Here are the rules, here's what needs to happen.

unknown 1:07:04

Yeah.

SPEAKER_00 1:07:04

And it gives them something to stand on and feel good about. But it's not personal, it's not that this person did anything wrong or this person did something better. It's here's the system we've set up, and I believe wholeheartedly in the system, so that's what we're gonna do.

SPEAKER_01 1:07:16

Yeah. You know, for for me, when I think of sanctuary, it really comes to that place, right? And so I've had some successes when I a jury comes into my sanctuary, right? Because I almost think, sure, it's the judge's courtroom, yeah, but the judge isn't the main player. Most of the time in a criminal in a criminal trial, the criminal defense attorney is probably the person that talks the most. Sure. Right? Because the if you're I think if you're doing it right, because you have more dra you have more crosses, you have more everything else. You're the one that's almost in control. And so it's like, this is my place, yeah. And then you have a guest coming in and you get to set up the sanctuary for the guest. Here's the rules in this house. You take off your shoes at the entryway, whatever your rules are. Yeah, but um, and that's how I try to set it up. But it's very different for me, and maybe it's not for you, for when I go into the judge's house, and the judge is the fact finder, the judge is the arbitrator, because now he's the one that's like, or she, yeah, you know, in my neck of the woods, mostly it's he's that's their house. And so for me to come in and say, you don't have the right rules here, or you need to change your rules, uh um, I struggle with that to try to do it in a way that's not me judging or telling them that they're doing it wrong. And so how are you able to find success? Southern charm when you come in with the with the judges?

SPEAKER_00 1:08:42

Uh I think that only goes so far. Yeah. I think it's waning the older I get. But um look, I think you can empower your judges. Um, you can empower them because well, let me start here. In Montana we have non-lawyer judges. So we have some judges in our justice courts and even our municipal courts, which are our lower level misdemeanor courts, may not have a judicial background or a legal background at all. Um, they might have come from a walk of life completely different. And and I think it works because they basically or mostly want to do what's fair, right? We talked about that. And so we have to empower them to do what's fair. We have to teach them here's how you do fair, here's the rules that give you the permission to be fair.

SPEAKER_01 1:09:25

Yeah.

SPEAKER_00 1:09:26

Um even with lawyers or sorry, even with judges who are lawyers uh in their past lives or who've been to law school or been judges for decades, they can still learn something new. And so if you can teach them a new case, if you can give them the tools that that they get you there, or even better, give them the facts that get them there.

SPEAKER_01 1:09:43

Yeah.

SPEAKER_00 1:09:43

Right? Because the judges who know the law, you've got your criminal judges, right, who know it cold. Yeah, absolutely. Someone might have literally written books on it.

SPEAKER_01 1:09:50

Sure. Um some of the smartest people we know are the judges.

SPEAKER_00 1:09:52

That's right. And so if you're not necessarily going to teach them anything new in the law, but if you can teach them about your client, if you can empower them to want to help your client, and we do that factually, right? We bring up witnesses, we have good constructive crosses. We use the evidence that we got to the best of our ability, you know, then we're we're giving them permission, we're giving them the the way to get there. If they want to do what's right, they'll find a way. We just need to give them permission or give them the tools to get there.

SPEAKER_01 1:10:18

Sense of fairness runs through them just as it does everybody else.

SPEAKER_00 1:10:21

You know, you sure hope so. I mean, I know there are lawyers, judges, everybody that aren't fair, or at least don't have the same I don't know, barometers on the right, or maybe compass of fairness that we do, but um They might measure it in a different way.

SPEAKER_01 1:10:35

Yeah. Have other values. But you know, you you have to find that. I think that's you know, uh some of the other guests have just you like find what's important for that judge and see how you can you can use it in that way.

SPEAKER_00 1:10:46

Yeah, I think creating that your credibility is important too. Yeah, there are judges that know that I'm you know never gonna mislead them. Uh I won't offer them any bad facts, but if I'm asked it, I'll I'll always tell the truth. Uh and I think we should all be doing that, but you and I both know that there that that little bit of respect can go a long way with a judge.

SPEAKER_01 1:11:05

Oh, you know, I know you've you were sharing uh before about just how important decency, right? To just walk the path, I've heard you say, the walk the path. Um in this world that we do in criminal defense, there's so many opportunities uh for us to feel angry, you know, because we've suffered from an injustice, from our client to feel uh angry because they've suffered from injustice and we've witnessed it. How have you managed to continue to be decent in those circumstances and walk the path when you're witnessing sometimes these injustices or what you might think of as an unfairness?

SPEAKER_00 1:11:44

Oh, I I think my wife, Ashley, has probably been the the best about reminding me to be a decent person, to be better than I was, to particularly since we had kids. You know, if you show them that, that's what they're gonna do. If you wanna if you want them to do better, you need to show them better. Yeah. And remind me that, okay, that's what needs to happen. And I think you start training yourself and then it becomes habit, and then it becomes who you are. I've gotten better as I've gotten a little older uh about slowing down and taking time to check in with the courthouse staff and you know, checking on things. And I mean we I when I was brand new, I uh my daughter was in Girl Scouts, so I bought a bunch of boxes of Girl Scout cookies, and I'm like, what am I gonna do with all these simple things? And so I just dropped a bunch of them off at the courthouse. Uh and I dropped them off, I think like I forget, January or sometime when it had been months since anybody had had a Girl Scout cookie. And so I was a hero for like four hours. And so then I realized, oh, so now we buy like 400 boxes of Girl Scout cookies. Which works, and we drop them off to say thank you, and it's way below the the the limits of gifts you're allowed to give, and it's something there's thoughtful and easy. Yeah, you're thinking of them. Um it is, but it's or just being nice to them. Yeah. I mean, honest to God, being nice to them and treating them like a person because I see criminal defendants that don't, I see prosecutors that don't, I see random public that doesn't, I see lawyers that don't. And and and look, these people are just doing their job, raising their families, trying to do right by their their people. And they didn't bring your client here and yeah, they might have screwed something up, and yeah, they might not, they might have not understood that or the other thing. But typically it's not from a bad place. Um and if you're just nice to them and say thank you, that goes a long damn way.

SPEAKER_01 1:13:26

Yeah. We think of, you know, I think of at least, I shouldn't project it onto everyone, I think of as empowering the jury, right? We talk about empowering the jury, and it's normally maybe we're empowering the people that I don't know, maybe it's not hierarchical, but are beneath us to get more power. Um, but sometimes the the judge has the most power, sometimes the prosecutor, but you still need to empower them to be their better selves, is what I hear you saying.

SPEAKER_00 1:13:50

Yeah. I mean, my dad told me this years and years and years ago. Um, that trial doesn't go without court clerk there. Judge can be there, jury can be there. If the clerk ain't there, we ain't going. Yeah. And so whenever the clerk comes in, and I'm sure you've had this happen, all the lawyers start standing up, and they're like, it's just me. And like, nah, just me. Like, Caitlin, we don't go if you're not here. Like, if the record's not going, we're not going. We're just all sitting here waiting. Yeah, yeah. So you are important and you, you know, you do play a role in this. Um, and I think that's important not just because we are humans and need to treat other people right, because I think we're missing that these days. Even if we don't agree with everything, we can still treat people like people. But and again, I got this from my dad. Who do you think the judges talk to when they go back in the chambers? They talk to their clerks, they talk to the bailiffs, they talk to court staff. And if court staff says Mr. Dodd's an asshole, which they might have said about me, and I'm almost certain they said about my dad from time to time, um, you know, the judges are gonna be happy. If if they say, Well, he treated me nice or he always treats me nice, or the judges just see that. I think that goes a long way when you're trying to get a judge to go with you or give you the benefit of the doubt.

SPEAKER_02 1:15:00

Yeah.

SPEAKER_00 1:15:00

Even on like a little issue like a revocation issue, where it's not necessarily gonna be determinative, but if your client gets the benefit of the doubt because you acted right, oh shoot. That's great. Yeah. If they don't get the benefit of the doubt because you are a jerk, then you haven't done right by yourself or your client.

SPEAKER_01 1:15:18

Yeah, we've talked about it on here before, just how important it is to just model the behavior you want to see in the courtroom. If I want them to treat my client with decency, treat my client with respect, I damn well better be doing it to everybody else that's in there.

SPEAKER_00 1:15:30

No, that's exactly right. I mean, you you have to, right?

SPEAKER_01 1:15:33

Yeah.

SPEAKER_00 1:15:33

And it's hard. We I mean we all act apart from time to time. Yeah, it's hard. I mean, but but for you know, we we would be the criminal defendants.

SPEAKER_01 1:15:41

Yeah, no, no doubt. Well, you've you've certainly walking the path. I think you've uh you've demonstrated that uh throughout your career, throughout all your teaching, throughout your life, and certainly today. So thank you so much for for making the connection, coming all this way, standing up, showing up. Thanks for coming to the Sanctuary.

SPEAKER_00 1:15:59

I sure appreciate it. Thank you for having me, Aaron.

SPEAKER_01 1:16:01

I appreciate it. Absolutely. Thanks for listening to Sanctuary in the Jungle. This episode was brought to you by Nelson Defense Group and made daily. Subscribe to Sanctuary Now and never miss another episode. You can also sign up for our newsletter on our website and follow us on social media for new bonus content. We'll see you next time at the library for another episode. Until then, stay strong and carry the hope.