Our discussion with David Oscar Markus

We are well into the era of artificial intelligence and TikTok, and both are having dramatic impacts on our lives.  Trial practice, and criminal defense practice, are not immune from that influence, which is perhaps unsurprising given that trials and criminal defense are a mirror, in some ways, of the state of our society at large.  

We had the opportunity to catch up with David Oscar Markus to discuss artificial intelligence and TikTok, and its impact on criminal trials.  David is a highly regarded and respected criminal defense lawyer, host of the wonderful “For the Defense” podcast, and has represented celebrity defendants and politicians in cases of national import, among them Florida gubernatorial nominee Andrew Gillum, and Ghislaine Maxwell.  

Transcript

Speaker 0:30

This is the Just pod.

Speaker 2 0:34

Welcome back to the Just pod from Philadelphia. I'm Justin Danil ewitz.

Speaker 1 0:39

And from Washington, D.C., I'm Geonard Butler.

Speaker 2 0:43

We are at this stage well into the era of artificial intelligence and TikTok. And both are having dramatic impacts on our lives. Trial practice and criminal defense practice, of course, are not immune from that influence. And that's perhaps unsurprising given that trials and criminal defense are a mirror in some ways of the state of our society at large. We have the honor today to be joined by a guest who not only has experience with AI and TikTok in the criminal trial context, but is also more generally a highly regarded and respected criminal defense lawyer, and not just in the great city of Miami, where he's a partner at the law firm Marcus Mars, but also around the country. David Oscar Markus has an impressive pedigree. He's the host of the wonderful For the Defense podcast, and he has represented celebrity defendants and politicians in cases of national import. Among them Florida gubernatorial nominee Andrew Gillam and Gislaine Maxwell. He has kindly taken some time out of his schedule to speak with us today. David Oscar Markus, welcome to the Just pod.

Speaker 3 1:53

Thanks for having me on from one podcaster to another. Appreciate it.

Speaker 2 1:58

We are really excited to have it. Yeah. Let's let's kick it off. David, to start us off, maybe we could begin with some of the ways in which you are seeing AI and TikTok technology used in in trial practice these days. Uh and let's start with that and and see where it goes.

Speaker 3 2:21

Yeah, I mean, you know, in a lot of ways, the practice is very different, and in a lot of ways, it's the same. At the end of the day, of course, you know, the goal is to convince a jury, and and you're trying to figure out the best ways to do that. And you know, every time technology changes, folks have have ideas on is that going to change the way we try to persuade jurors, the way jurors understand cases, and so on. You know, we saw it when PowerPoint came about, we saw it when computers came about, when the Elmo, every every new piece of technology folks want to use and employ. And and that's a good thing because jurors are are you know, obviously everyday folks who use the technology. So I use it. I use AI, I use, I try to use the way social media grabs folks to use that in trials and openings in terms of trying to capture a juror's attention. Um and it's becoming pretty tricky, actually, just because trials now are getting longer and longer. You know, criminal defense trials go on for many weeks. I tried a civil case last year that was three and a half months, and just trying to keep the jurors' attention every day is a challenge in those long trials. So you you got to use the technology. I'm a firm believer in that. And and you got to try to keep the juror's attention as best you can.

Speaker 2 3:55

You you almost think you need not only a restroom break these days, but like an iPhone break too, and almost every five minutes, given the attention span of most people these days, right?

Speaker 3 4:06

It's pretty wild because people, you know, they're they're addicted to their phones, obviously, and need them. If if if judges try to take people's phones away, there's a revolt amongst jurors. And so, you know, how do you keep them from looking at their phones? In our in that long three and a half month-long trial that we had, one of the jurors was a TikTok influencer. And we saw her recording a n ber of times, you know, in the hallways and things like this. She didn't post during the trial, but after the trial, she had a n ber of posts about her experience, which was which was pretty fascinating to see.

Speaker 2 4:44

That's really interesting. I wonder sometimes if there's sort of a CSI effect that that applies now to AI and TikTok and social media and these kinds of technology, in the sense that, as you know, jurors typically expect a high degree of sophistication on the part of the government that's almost unrealistic, right? They they they see CSI like TV shows and movies, and so they expect prosecutors to have all this crazy technology available, which often they don't, nor do they need to, we have to say, to meet their burden of proof. Um, but I wonder if the same thing could be said now about these new and novel technologies. Do you think that there's sort of an expectation for you to keep them interested, to keep them entertained, , in a way that's different from before?

Speaker 3 5:40

Yes, is the answer to the question. We I mean you have to, they expect it, they expect you to be competent in it. I will challenge you on one thing you said, Justin. I do I love when prosecutors open on saying things like, well, we don't need all the technology that the CSI folks need. I love when they try to give excuses to the jury about what they what they don't have. Um I love to j p on that and say, , you know, you're already hearing excuses from the prosecutor. Uh so I try to I try to use that because pro, I mean, you're right, of course, you don't need it to prove a case, but when prosecutors start out like that in an opening, I like to I like to have some fun with them and and and and use it against them.

Speaker 2 6:27

That's fair. That's interesting. Um, so let's talk a little bit about authentication of evidence, right? Because we're we're also in the era of deep fakes, which are incredibly realistic imitations or complete fabrications. And that's a real hazard because the the authentication doctrine, as you know, under the rules of evidence, requires that the proponent of the evidence, the person seeking to admit the evidence, to present it to the trier effect, whether it's a judge in a bench trial or the jury, , proves that it is what it what it purports to be. Um that is much more challenging now with the advent of AI. And so have you run into authentication challenges, or have you been able to use that to your advantage to challenge the admission of evidence by the other side?

Speaker 3 7:23

You know, obviously we're seeing every day lawyers getting into huge trouble with AI with fake cases. Um, that's inadvertent. We're, I have not seen, but we're going to see cases where clients produce fake evidence, and you know, obviously somebody's gonna get caught, it's gonna be a big deal and awful. As a lawyer, I'm not sure how we're going to police that. It's gonna be very tricky. You obviously have to rely on your clients, and AI is so easy now with making photos, evidence, other things that it's going to be tricky. I will say, in that long trial that I was mentioning, there the jury was deliberating for almost a month after this three and a half month long trial. And there were huge fights in the jury room, and you could hear it. And so one of the other jurors decided to accuse another juror of misconduct. And what she did was she went home to AI and said, what are some of the best ways to get another juror kicked off? And so the AI told her, well, if the juror was meeting with lawyers or, you know, during the breaks, that would be one way. So she said, okay, draft a letter to the judge saying that I saw the juror meeting with the defense lawyers in the bathroom. Wow. So she sends this letter to the judge. The judge sees this letter that says, I have evidence that the lawyer, the defense lawyers, me and the other defense lawyers were meeting with the juror in the bathroom during the breaks. The judge freaks, the judge immediately freaks out. She calls the Broward Sheriff's Office to the courtroom. Oh, wow. To pull the videos. Of course, we tell her, Judge, no, that we we never met with any juror in the bathroom. Of course, it's absurd. She brings the juror and the juror says, No, I never met with the defense. So she she, of course, ends up believing us there, and and and the videos show there's no meeting. So she brings the other jury and says, What happened here? And she says, No, I had the AI draft this letter. So she ends up getting kicked off of the jury, obviously. Um, but still, I mean, you know, talk about having a heart attack, even though we none of us did anything wrong. You get accused of something like this. Sheriffs come into the courtroom. Uh, it was it was like a scene from a movie. Um, and and all because AI gave her this idea that, hey, this is a good way to get lawyers kicked off of a jury, , to get another juror kicked off of the jury.

Speaker 2 10:09

Unbelievable. That that is pretty freaky.

Speaker 1 10:14

I want to ask when lawyers shorten and sharpen their presentations for the TikTok era, are they adapting intelligently to the modern juror that you're describing here, or are they surrendering to a culture that has lost the patience required to decide a h an being's liberty?

Speaker 3 10:36

Yeah, it's such a good question. And and something, you know, we struggle with this, Jannar, because these are complicated cases, and it's hard to, you know, distill it down to a 30-second clip or a two-minute clip. So so what I've tried to do is infuse the opening and closing with stories and h or and graphics so that we can keep them into it. That's n ber one. But you also have to worry about the examinations. And so, you know, there's a lot of telegraphing to the jury. Here's what we want to do, here's what this, you know, I'm gonna talk to this witness about these three things. Um, and and sort of, you know, writing down on the elmo and outline as you go so they can follow along and they write down with you. But there's all kinds of techniques that we're trying to use to keep jurors interested as we go, because these you can't you can't just do away with the evidence and the arg ents, especially in these big doc ent cases. Otherwise, you know, you're giving up some of the ammunition that you have. Um, so it's just a matter of how can you how can you package it for the jury in a way that they can they can remember it, keep it, be armed with it if they're on your side. Um, and and so, you know, just to give an example, in closing, I'll put up on the screen one doc ent that supports the arg ent. But there may be 10 are 10 doc ents that support it. So, you know, it's just too tedious to put each of the 10. So what I'll tell them is here's the best one, here's the best doc ent that we have. But when you're back in the jury room, take a look at exhibits X, Y, Z, A, B, and C, because they also support it. And you can see, and I'll write down on the screen here, I'm gonna write down for you the ones that support this arg ent. And you can see them writing down, you know, with you. That's just one way to do it because if you just keep putting doc ents on the screen, you you lose them. You lose them. So you almost want to have you know, engage them in a way that they're forced to be a part of it.

Speaker 1 12:56

Is there a danger that such compression eliminates complexity and that complexity is often exactly where reasonable doubt lives?

Speaker 3 13:07

Yeah, I mean, yes. Um, that's that's exactly right. Because, you know, chaos is a criminal defense lawyer's friend, complexity is a criminal defense lawyer's friend. I often tell the jury if you don't understand that theory, that means it's not guilty. You know, so we want it to be complex. Um at the same time, you know, jurors are gonna go with the easier to understand simpler story a lot of times. So, you know, you need a headline for the jury, you need a newspaper headline, a New York Post headline to explain it to a jury. Um, when I represented the reggae star Buju Banton, we we came up with the line for the opening that this case is about a con artist setting up a recording artist. You know, that was our tagline, and we tried to use it throughout the trial. Um, you know, to try to come up with sort of simple themes. And those themes that, you know, even with a complex case, you can use a theme over and over and over again so that it sort of becomes part of the case.

Speaker 1 14:12

Now, what does TikTok era advocacy change as it relates to these newspaper headlines that have to be encapsulated for the storytelling purpose of relaying information to the jury? What does this era's advocacy, this TikTok era advocacy, change about perhaps opening statements, cross-examinations, and closing statements when the story has to be often more central than the evidence itself?

Speaker 3 14:49

Yeah, I mean at the at the end of the day, we're storytellers, so it's a question of how are we telling the story, you know? And and and so, you know, we're both long-form podcasters, and and and it's interesting, right? Like we want to get people to listen for 45 minutes an hour. That's what I think a good opening and closing is at most, 45 minutes to an hour. That's I think that's the most you're gonna have to tell your story. If you're going for three or four hours, it's never gonna work. It's just not gonna work. I can't go see , you know, the Odyssey. It's too long for me. I, you know, these movies that are now three plus hours, I prefer the TV shows that are broken up 45 minutes, and you can watch as many in a row or take breaks. People are not used to sitting for that long and watching for that long. Now, you know, it's never going to be a TikTok 30-second clip. It's just not, you're not able to do that in a trial. But you can give little bite-sized portions during your hour. Um, and so I just think the old days of of where you're asking for three hours for a closing, it's just not, you're not doing your client any any service by by going for that long. You're just not going to keep the juror's attention.

Speaker 2 16:07

David, I want to ask you about publicity and high-profile cases and the the use of social media by the defense to address maybe you know things coming out of the prosecution camp or just general news coverage. Have you found a way to make use of social media in a in a defensive way, but sort of affirmatively to put out a theme or a theory or to counter the government's narrative in in one of your high-profile cases?

Speaker 3 16:42

Yeah, so it's let me let me back up a second because the government has become very adept at social media. All the U.S. attorneys' offices now have Twitter accounts. They many of them have TikTok accounts, they have press offices. Um, this is a relatively new thing where the government is making a big push. They issue speaking indictments with pictures in the indictments. Um, you know, the the one in New York with the with the senator with the gold bars. There were pictures of gold bars in the indictment. You would have never seen that. Menendez, you would have never seen that. Um, just even a few years ago, there would be no pictures in an indictment. But that's that's happening. And so the defense lawyers who say, well, I'm I'm gonna save my response for the courtroom and not for the media, they're they're losing and they're making a huge mistake. You must defend your client, not just in the court of law, but in the court of public opinion. And you have to be armed and ready to do it. Um, I just spoke with , and and I'll give a plug for my podcast, the For the Defense podcast. I spoke with Tenny Gargos, who represented Diddy in that case. And she had a big TikTok presence for Diddy, where she was posting responses to the media and the government on her TikTok page. And and did the jurors see that? I don't know, but the problem is that the media is also something you have to deal with because they will read reports, the jurors, and if you're not responding in the media, if you're not responding on social media, there's only going to be one side of the story told. Um, and and so, you know, it's very tricky because especially in the southern and eastern district of New York, there are these rules, very, very strict rules about speaking to the media. And and the local rules have obviously strict rules about it. The problem is the government comes out and they're allowed to publicize their indictment and they have a press conference. It's really not fair if the defense lawyer is not able to respond. So I'm a big advocate that you must respond. Obviously, you have to comply with the local rules and whatever rules there are in your district, but to the extent that the rules allow it, you must, I think you have an obligation to your client to respond in the media.

Speaker 2 19:10

It's dicey, though, right? Because there's a charge that during Voidia, the jurors inevitably are questioned about what kind of media coverage they've seen. And and if if you've done an effective job and a majority of jurors are saying, yes, I've seen all the defense TikTok posts, maybe even more than the government's, , there may be a perception that creates in the mind of the judge. Um, and it it could it it could be skewed, I guess, right?

Speaker 3 19:41

Yeah, but but it could be, and and both ways. I mean, I rarely see jurors who have said, I've seen the defense cat , you know, defense story out there and I'm skewed to the defense. It's typically the other way around, right? Jurors who have seen, you know, I've seen the charges against so and so, and I've seen that they've released this evidence, I've seen that he had gold bars in his closet, so I ass e he's guilty. Almost always it's the other way, Justin, where jurors have have made up their mind for guilt, not innocence. And so, you know, just to talk briefly about Voidir, that's why Voidir is so important, especially in these high-profile cases. In federal court, and you guys know this, you get very little attorney conducted voidir, almost none. Uh, most judges don't give attorney conducted voidir. In state court, you get a lot more. It's so important in these, in these high-profile cases. In the Andrew Gillam case, we got a juror questionnaire, which was critical to the case because we were able to find out jurors who came in with a predisposition against Andrew and again against politicians in general. Um, and so it's so important that you learn about these jurors. Now, in that case, the judge did not let us pull the social media accounts of our potential jurors. He did not let us do that, which I thought was wild. Um Most jurisdictions, of course, do allow you to pull the background, the social media background of the jurors. And had we done that, one of the holdout jurors against Andrew Gillam, the final vote was 10 to 2 for him. One of the holdout jurors against him had on her social media page Tr p is my president. Now, that's fine. That was at a time, by the way, when Biden had won. Um, and she wrote Tr p is my president. Now, we would never have let that juror stay on our jury with the Democratic nominee for governor in Florida, , had we known that. But we didn't get to see that until she caused a problem on the jury. Then the judge let us pull the social media background. We saw it, and and , you know, obviously that that that juror was a problem for us. Had we known it, she would have we would have stricken her.

Speaker 1 22:06

It does seem wild that a judge would restrict you from looking at the social media profiles of a juror when, as you just mentioned, it is now commonplace for government agencies to have not only their own social media accounts, but in fact an entire public relations department and let's call it marketing department that is dedicated to their cases and their work. And you have public publicly asked on your show should United States attorney's offices be tweeting at all? Should they have social media access? But today a government press release does not merely sit on their website, their their agency's website, algorithms extract it and s marize it, recommend it, reproduce it, and place it before millions of people, often without disclaimers or procedural context that accompanies the original statement. And when it applies to celebrities, that amplification goes through the roof. Does the government acquire a new constitutional or ethical responsibility when it knows that every accusation that it publishes may be algorithmically amplified far beyond its original audience, especially when dealing with persons of interest, so to speak?

Speaker 3 23:32

Amen. I mean, listen, the the pro I mean, you hit the nail on the head, Janard. The problem is not only do they know it, they're counting on that algorithm pushing out all of this information. They're embracing it and they want it to happen. And so you're right. The defense response, even if they're even if it's a fulsome response, is not nearly amplified as much. And and you know, I think about that Diddy case, everybody thought he was going to be found guilty of everything because everybody was was already prejudiced by all of the U.S. attorneys' press releases, the the leaks to the media about you know baby oil and the like. Um, the defense, when they would respond, would either get chastised by the judge, , would would, and it would not get amplified nearly as much. And so, you know, there's a disconnect there when when he was acquitted of the serious charges. People, people wondered, how? How is he acquitted? And and the truth is, they didn't watch what happened in court. They didn't see what happened, you know, that this wasn't really a RICO case. They didn't, they don't understand all those subtleties. They just see the government's early press releases that get pushed out. And so it's a really tricky and tough situation. Um, and and you know, I'm glad you raised that point about how these things get amplified by the government, and it's so much harder for the defense to get out there. So, so you , you know, I urge my my my colleagues, my brothers and sisters of the criminal defense bar, they got to speak out for their clients and try to get the word out to just to push back on the narratives that are being floated out there. I'm I'm representing Terry Rosier right now in New York, , the basketball player that played for the Hornets and the Heat. And the press that's that that has covered his case has been horrible for him. And and so, you know, we're gonna have to we have trial in February, we're gonna have to combat that bad press before we get to trial in an ethical and and legal way, of course, but we have to do it.

Speaker 1 26:03

To that end, and going back to the Diddy trial, when charges are dismissed or defendant is actually acquitted, should the government now have an affirmative duty to publicize that result with the same vigor and energy it used to announce the prosecution and all of the evidence that it intended to present against that defendant?

Speaker 3 26:26

See, you're gonna get my blood boiling now, and you're gonna get me all fired up because they don't do it. Um what they the if you search online for a lot of high-profile defendants who were acquitted, what comes up first is the press release of the indictment. And DOJ they don't update the press release, they don't put in there , you know, Jannard was acquitted on these dates or issue in a separate press release saying, you know, Jannard was acquitted on on June 27, 2026. Um, that takes the place of the old one. They leave it up. And and you know, I always say an indictment itself, forget about what happens. An indictment itself ruins people's lives. It it ruins you financially, it ruins your reputation, it ruins you emotionally. It's a crushing event. And a lot of prosecutors don't understand that until they become defense lawyers, until they see, until they represent a person. So I've always said, and this will never happen, of course, that before you become a prosecutor, you should you should have to represent somebody. You should have to be a criminal defense lawyer. You know, if you go to into the army, you do both sides into the Jag Corps. I think before you become a federal or state prosecutor, it'd be nice if that person represented an individual. I think it would just give a lot more perspective. And so, you know, before that indictment comes out, they know the seriousness of what's about to happen. And I don't blame the prosecutors. I don't think they're acting in bad faith. I just don't think they understand. So many prosecutors are straight out of clerkships or from big law or from right out of law school, and and they don't understand what an indictment does to somebody. They don't understand how crushing it is. Forget about if you're convicted. That then then you can say, okay, it's justified, you know. But the pres ption of innocence in in a lot of ways is illusory in our country. When when an indictment happens, people pres e you guilty. And so, you know, I just don't think our pres ption of innocence unfortunately means a whole lot.

Speaker 1 28:43

I'd agree.

Speaker 2 28:46

David, let me ask you, I don't know how you find the time, but I know you teach as well. Uh, I think at University of Miami Law School. And , I'm curious whether you have had an opportunity to bring AI and some of this new technology into the into the classroom or at least to to suggest to the budding members of the the criminal bar, whether it's defense or prosecution, what what tools, tricks and and tips of the trade to to kind of use. Do you do you have a favorite? Uh, you know, what what do you have in your in your toolkit?

Speaker 3 29:24

Sure. So so two things there. So so just about in school, you know, look, I I think AI is so important, but what you're seeing from a lot of students is is kind of sad in a way. So what they'll do is you assign cases to read, they won't read them. They'll have AI s marize them and they'll read the two-paragraph s mary, and they think that's enough. And the whole point of law school is reading all of these opinions, seeing the thought process, seeing the analysis, seeing how judges reach their conclusions. If you just have AI s marize it, you're losing out on all of that. And sure, it's it's a time saver. And sure, as lawyers, since we've already gone through it, we can use those shortcuts now in our practice. The problem is that law students and young lawyers are using the shortcuts before they learn the hard way. And I know I sound old and and and curmudgeon like that, but but I think it's important to learn how to how to read a case, how to analyze the law, how to how to write yourself without the AI doing it. So that's the problem that I'm seeing from young law students and young lawyers. Now that said, of course, once you know how to do it, you can start using the shortcuts. I use all of the different ones. I use them for doc ent review to try to pick out the most important doc ents. I use it for helping with research and drafting. I will say my partner Margot still likes to put eyes on all the discovery. Now that's becoming harder and harder because, you know, when we were young lawyers, you know, the doc ent we were complaining, we're not getting enough stuff. The prosecutor would give us only a little bit of information and we would say, we're we're we need all the discovery, we need everything. Now it's the opposite problem. We get d ped terabytes of information and it's impossible to go through it. So you need help to go through and figure out what the hot doc ents are. And so, you know, obviously we're we're we're trying to employ AI more and more to find those important doc ents, but you miss stuff if you don't put your eyes on it. Um, and so what I find the most important, more than AI, more than us putting eyes on it, is to get the client's engagement. And, you know, for emails, text, I hey client, I need you to pull out text that will help us with this theme or this theory or this, you know, because they know the evidence the best. And so you need their help and their engagement to go through it.

Speaker 2 32:06

Totally agree. You just cannot put a price on a on a truly engaged client, right? It's like it in some ways it sort of doubles the defense team. It's a real multiply effect if you've got a smart engaged client, right?

Speaker 3 32:22

You need it. You need it, , you need it to win. And and and I always tell and and I always get the buy-in of the clients early on. You need to have the their help.

Speaker 2 32:30

Yeah, totally agreed. Um, I will say that AI generated research from clients, which I'm starting to get more of, is maybe a little less helpful. But I'm sure you run into that too. And I don't know what your approach is. I do always consider it because , you know, there's there's always the chance they st ble upon something of some value, and I would never ignore it. But there's a lot of nonsense that AI generates too, and sometimes it can be just a distraction and you know red herring in a in a busy day.

Speaker 3 33:07

I think so. And and part of the problem is because the clients don't have the legal training, their prompt isn't precise or specific enough and it leads AI on the goose chase. So they'll say, you know, , come up with a defense because I didn't actually get all the money or whatever. They come up with some with some silly prompt, which leads AI to a silly response. And so, you know, what I've been telling clients is listen, let's talk together about how we can use AI, , what theory and themes we want to we want to try to plug into it. I love it for things like, hey, , we got this analogy from my opponent on why, you know, X and so happened. Come up with a counter analogy. Tell me why that analogy doesn't work, you know, things like this. AI is great for stuff like that. Yeah, and it will give you three or four responsive analogies. Maybe one of them works, you know, and then you can play on that and and respond. So there's ways to use AI that's helpful, but but when the client just does it without you know any context or understanding of what the law is, just, you're right, it leads to sort of silliness.

Speaker 2 34:21

Sure. What about AI for developing witness outlines? So we had Larry Posner on our show a little while ago, the second time. He's he's an awesome cross expert, as I'm sure you know. And we we asked Larry about use of AI for generating cross-themes or or questions for that matter. Have you tried that? Um, any any experience with it?

Speaker 3 34:48

Yeah, I don't love it for that because it can't really replicate my style. You know, the I believe, and Larry's the best, and and so you know, he he's the best cross-examiner, but I believe so much of cross's dynamic and listening to the witnesses' answers and responding and having a conversation that it's hard to come up with AI's hard, it's hard for AI to generate that. Now, what I will use AI for, and and and I found this very helpful and effective, you know, you you'll get an expert report, and the expert report will have 50 footnotes with citations to articles. So I'll tell AI, read every article that you can find in those footnotes and find in those articles any conflicting statements with the report, and it will spit out you know, 10 statements that I can use. And then when you cross the expert and say, hey, you cited , you know, Justin's May 22nd article, , you relied upon that? Yes, I did. And you know, the the statements in that in that article were helpful for your report. Yes, they were. And are you aware that Justin said, you know, X and so in that article, you know, and they'll they'll take a double. I mean, and it's amazing because it would take an associate weeks to do it, and it takes a couple of hours for AI to give you something that's really useful in that regard. So so there are definite uses for AI that are helpful and and that save you a ton of time. That the expert stuff for me has been has been really great.

Speaker 1 36:33

Speaking of young lawyers, students, you work at a law firm, and when you hire a young lawyer, would you personally rather have someone who can produce a beautiful AI-assisted memorand in 15 minutes, or someone who can sit across from you and explain without a screen their arg ent and why it's correct?

Speaker 3 37:00

Well, definitely the latter. I mean, I think we all want people who, you know, I don't want an associate what what's called a AI rapper, you know, someone who's just reproducing AI. I can do that. Um I want I want someone who's gonna give me stuff I can use, someone who's helpful, someone who makes our cases better, someone who's invested. I'll tell you, Janard, and and I know you know this, but you know, law is a hard business, man. And we sort of absorb our clients' problems, our clients' issues. It's what keeps us up at night, and why I have all this gray hair and and bags under my eyes. Um I want an associate, I want a lawyer who's gonna work with me that's also gonna lose sleep about the client's case. Who, when they go home, they're thinking about the client and who's struggling with how how we can win this. That's what I care most about. I don't care about anything else really. I want somebody who's invested in winning, who's invested in the case, who who dreams about the case, who wakes up in the middle of the night and writes down a little something on their notepad. That to me is the best lawyer.

Speaker 1 38:22

And I would agree. And the best lawyers understand, especially trial lawyers, understand that a part of the process when in trial is that a lawyer must listen to a witness, notice an unexpected answer, revise a strategy on the spot, and formulate the next question in real time. And there may be no opportunity to consult a machine. And so, what I want to ask you for our student listeners, are students who repeatedly outsource analysis, thus sacrificing the intellectual reflexes that courtroom advocacy requires. Are they sacrificing their ability to think, respond, and exercise judgment under pressure as well?

Speaker 3 39:10

Yeah, I mean, , there's all these studies now that that people who are using AI, they're sort of losing their thinking skills. I remember, Jannard, when I was a young public defender, I couldn't watch enough trials. That's what I did. I watched trial after trial, and I was watching a trial with a great lawyer named Lou Guerra. And this was a small trial, a couple days, but it was a case that the defense had no business winning. Um, and the snitch was on the stand, and Lou was cross-examining him, and and the guy had a prior record, and Lou was started asking about it, and and the the witness said, I'm squeaky clean. Now, lawyers who had their outline could have just gone to the next question. But Lou, the the trial became squeaky clean. Every question. So when you were you squeaky clean when you did this, you were squeaky clean. Were you and squeaky clean, I think Lou must have said it a thousand times after the witness said it. And the closing, of course, you can imagine the closing. And the jury acquitted. Why did the jury acquit? Because they hated squeaky clean. He he lied and it just became the theme of the case. Now, if you're an AI lawyer and you have your outline and you're not listening, you move on to the next question and you you miss that opportunity. And so, you know, I can't stress enough what young lawyers should be doing. It's easy to work remote, not go into the office, get on Claude or Chat GBT and do your thing. Don't go into the office, go to the courthouse, watch trials, the few that are left, get in there, see you know, the squeaky cleans of the world do their thing because that's how you're gonna learn. You're not gonna learn. Claude doesn't know how to try a case. Claude's never gotten a not guilty verdict. So go into the courtroom and see people who are doing it. That's the only way to learn. That's the only way you're gonna do it.

Speaker 1 41:05

I tell people all the time, , and what you're saying speaks to that is that AI might replace a lot of aspects of the legal profession, as it may do the same for the medical profession, but AI will never replace a trial attorney in the same way that AI will never replace a surgeon.

Speaker 3 41:26

Yeah, 100%. Um, and I think there's more of a chance that they replace surgeons than trial lawyers. But , you know, the the the robots might be able to, you know, and and by the way, I tell I tell young folks this and clients this. You know, when you break an arm, you go to the hospital, there's a pretty standard way to set that broken arm. Most doctors know how to do it, they're gonna do it in mostly the same way. When you come to a lawyer and you say, here's the problem I have, 10 lawyers are gonna handle that problem 10 different ways. There is no medical journal saying, here's how you handle this problem. And so there's no model.

Speaker 1 42:12

There's no model to predict.

Speaker 3 42:14

There's no models. You need you need to you need to develop the art. Being a lawyer is an art, it's not a science. And so we're never gonna be replaced by AI. And you have to learn the art, you have to develop your your practice.

Speaker 2 42:32

David, I want to get back to the the junior lawyer, sort of junior associate topic, which I find very interesting in mentoring younger people at our firm, and it sounds like you do too. Do you think that that sort of hunger, that passion, that fire in the belly, the person who you want to be thinking about the client as much or more than you are, is that something that can be taught, that can be kind of learned over time? Or is it something you're born with? This is something I do have to say I wonder about from time to time.

Speaker 3 43:08

Yeah, but I I don't know if it can be taught. Uh in a lot of ways, it's like, you know, when you model for your kids, and so you have to find a person who has the aptitude and who wants who has that hunger inside. And then, you know, you they they have to see it from you. They have to see that you care, , or they're gonna they're gonna act differently. So so you know, a lot of times I'll see folks from from big firms who have just sort of lost that hunger because you know they're the what their job is is to build 2,000 hours and and and you know the that's that's it's a different sort of mentality. So I do think, you know, you're born with that hunger, sort of in a way, but also you need to be in a Place where that's appreciated, that's what's valued, as opposed to how many hours you can bill.

Speaker 2 44:06

Totally unrelated topic, but I have to ask you. I read a cool article that you co-wrote with your daughter. And there's a credit to her at the bottom of the article. The article was about writing style and whether it's better to be pithy or to use, you know, flourishes and fancy language. And it mentioned her paper wings project. Yes. And I'd love to hear more about the paper wings project. And maybe there's a reason to have her on the jazz pod at some time to talk about it.

Speaker 3 44:37

Yeah, that would be great. So I have three great daughters, , Nicole, Kate, and Megan, and and and my youngest one, Megan, , is the one that I wrote that particular article with. Um, and she started this project called the Paper Wings Project. And thanks so much for bringing it up. She she's in high school now, and what the project is is sort of writing to inmates and having inmates get have the outlet to write back with a poem, a short story, a writing project for them. And then my daughter puts the best ones together and publishes them. And it has become, you know, she's written to thousands and thousands of inmates. It's it's it's impressive. And the response has been incredible. And we've cried together on some of these letters that we get back. Um, we'll get letters back from folks who have said, I've been in prison for 17 years. I've never, this is the first letter I've ever received. Um and and they'll do a beautiful piece of art or write a poem that is incredible. And but just the idea that you know it's giving them an outlet, a creative outlet, , has been pretty special. And and I'm so proud of her because it's it's obviously something I care deeply about as well. So it's a it's a pretty cool project.

Speaker 2 46:05

That's really phenomenal. Well, maybe we can talk more about that at some point. Um wonderful. Well, David, this has been fabulous. We really, really appreciate your time today. Uh, it's an honor to finally got in to meet you, and , we appreciate everything you're doing.

Speaker 1 46:23

And love the love the podcast. Absolutely love the podcast, absolutely love the questions that you're asking, and you are someone as fellow podcasters that you know you keep us on our toes because as we've discussed, AI is ever evolving. Um, but there are some things that stay much the same. Um, and I think all of us here on this panel might be of a certain age and development in their career where we lived before AI. We are going to be practicing, very likely at some point in an era where there are people who have never lived without AI. And so I believe that the work that you're doing, , and especially the article that you wrote with your daughter really shines a light on where this country is headed. And I think that the the voice that you are projecting is is an important voice in the discussion. And so we thank you. It is an honor to meet you.

Speaker 3 47:34

No, it's my honor, Janard and Justin. I want to thank you both for having me on. And and and thank you for doing these long-form podcasts because you know, we're dinosaurs. And , you know, people people want to do the 30-second hit and the 30-second clip and and get views. And to me, this is this is really important right now to make sure that these stories are told and and you know, to preserve the art and to try to get folks to to realize that this is an art form. This isn't just a 30-second clip that we can do. And so I want to thank you guys for having me. Thank you guys for doing this podcast and and and appreciate you guys doing it.

Speaker 2 48:17

This episode of the Just Pod was edited and produced by Kyosue and socialized by Sarah Tomodi. Our original theme music was composed and mixed by Janard Butlein.

Speaker 1 48:28

If you would like to join us on a future episode of The Just Pod, or if you have questions or topics for us to address on a future episode, please send them to our producer, Kyoso, at kyo.s at americanbar.org.

Speaker 2 48:46

This has been another episode of the Just Pod. Thanks so much for joining us from Philadelphia. I'm Justin Danil Evatz.

Speaker 1 48:53

And from Washington, DC, I am Jannard Butler. Please join us again next time.

Speaker 2 48:58

The Just Pod is a production of the American Bar Association's criminal justice section.