Manage the Moment: Conversations in Performance Psychology

Thomas Mesereau - Internationally Renown Criminal Defense Attorney (Part 1)

November 05, 2019 Tom Mesereau Episode 5
Manage the Moment: Conversations in Performance Psychology
Thomas Mesereau - Internationally Renown Criminal Defense Attorney (Part 1)
Chapters
Manage the Moment: Conversations in Performance Psychology
Thomas Mesereau - Internationally Renown Criminal Defense Attorney (Part 1)
Nov 05, 2019 Episode 5
Tom Mesereau

Thomas Mesereau is regarded by some as an unconventional, unpredictable trial attorney. His accomplishments in the courtroom as a high stakes trial lawyer are extraordinary and his experiences are unprecedented, having been lead counsel on the most high-profile trial in American history. However, it’s Tom's authenticity that has helped him to be one of the most effective trial lawyers in modern times. In this first part of our two-part conversation, we also talk about managing the pressures of public opinion and we learn more about Tom's personal perspective than he has shared in any of his past interviews - in this fascinating and insightful first of two parts of our conversation.

Follow on Twitter @drshepp   

Follow on Instagram @drshepp

Learn more about Tom at http://mesereaulaw.com/

Learn more about Dr. Shepp  at SportandPerform.com

Podcast transcripts coming soon at: ManageTheMoment.net

YouTube Channel coming soon!

Music by Brad Buxer

Show Notes Transcript

Thomas Mesereau is regarded by some as an unconventional, unpredictable trial attorney. His accomplishments in the courtroom as a high stakes trial lawyer are extraordinary and his experiences are unprecedented, having been lead counsel on the most high-profile trial in American history. However, it’s Tom's authenticity that has helped him to be one of the most effective trial lawyers in modern times. In this first part of our two-part conversation, we also talk about managing the pressures of public opinion and we learn more about Tom's personal perspective than he has shared in any of his past interviews - in this fascinating and insightful first of two parts of our conversation.

Follow on Twitter @drshepp   

Follow on Instagram @drshepp

Learn more about Tom at http://mesereaulaw.com/

Learn more about Dr. Shepp  at SportandPerform.com

Podcast transcripts coming soon at: ManageTheMoment.net

YouTube Channel coming soon!

Music by Brad Buxer

Dr. Shepp:

Thanks for tuning in to manage the moment conversations in performance psychology. I'm Dr.Sari Shepphird.

Tom:

I learned that performance involves far more than artificial contrived , uh , fake ways of behaving. That true performance involves who you are as a person, your emotions, your depression, your anger, your in your anxiety, your great happiness , uh, your, your gratitude. I mean, whatever the panoply of emotions inside you are. Real performance is you and I really concluded authenticity to me being who you are no more, no less is a major component of performance.

Dr. Shepp:

Thomas Mesereau is regarded by some as an unconventional, unpredictable trial attorney. His accomplishments in the courtroom as a high stakes trial lawyer are extraordinary and his experiences are unprecedented, having been lead counsel on the most high profile trial in American history. There are some things though that you might not know about Tom - Like he took a sitcom acting class for example, or that he likes to defy logic by incorporating his sense of self into his work in the courtroom through emotion, humor and compassion. Tom knows who he is and it's his authenticity that has helped him to be one of the most effective trial lawyers, in modern times. But is performer, the word that someone would use to describe a courtroom attorney.?That's something that he and I discussed when we sat down together for this conversation in his office in Los Angeles. And this first part of our two-part conversation, we also talk about managing the pressures of public opinion and we will hear more of Tom's personal perspective than he has shared in past interviews in this fascinating and insightful first of two parts of our conversation. Here's Tom. Good morning. Tom. Thank you so much for being here. I'm very excited to speak with you.

Tom:

Thank you for having me.

Dr. Shepp:

Absolutely. It's my pleasure. Um, there's so many things that I'd like to be able to talk with you about today because I think being a courtroom attorney, most of our listeners will really find it fascinating how much of an overlap there is between , uh , performance psychology, sports psychology principles and mindset that one brings to their, to their skill when they executed in a moment of time. And the work that you do as a, as a trial attorney. I know from your background that I'm guessing any way that you probably have a , some sort of sense of, of sports psychology given that your father was a , uh , a football coach alongside Vince Lombardi.

Tom:

He was at West point. My father grew up in Bergenfield, New Jersey where Vince Lombardi was raised. My father attended and played football in high school at st Cecilia's high school where he was an all state football player and then went to West point and he was an all American, a West point and then played service ball after , uh, after world war II ended. Um, and he was an assistant coach at army under Earl Blake, who was a very famous coach in , in the history of college football. And at one point Blake was looking for an assistant coach and my father suggested he go back to his high school, st Cecelia's in Englewood, New Jersey, where the head coach was Vince Lombardi and talk to Vince Lombardi about his first college job. So as it worked out, they both were assistant coaches at West point together in the late forties. Um, quite an interesting story.

Dr. Shepp:

Absolutely. Did your father talk about , uh , I don't know what kind of dinner table conversations you might have had. Did he talk about the psychology of performance and in sport ?

Tom:

I wouldn't say did that. Uh , he wasn't much of a braggart about his accomplishments. Um, I can't say we ever had a discussion like that. Uh, but I did have my , uh , grandfather who was quite well known in New York city for owning a very well known restaurant. And he had been an Italian immigrant who was raised in hell's kitchen, which was a slum of New York at the time. Now it's all gentrified, but his mother , uh, who immigrated as well from Northern Italy, started a smaller restaurant and expanded it a number of times and it became quite well known. And my father was a re , my grandfather was a real performer. If you asked me, he was a huge restaurant. He could make every patron at every table feel like they were the focus of his attention. And it was kind of a natural thing. He didn't go through any training or instruction on this, but he was quite a showman, a tremendous chef, and tremendous in the restaurant business. So I would say if you talked about who performed in my upbringing, I would say he was probably more of a quote performer and of code than my father was.

Dr. Shepp:

Did you take anything away from watching your grandfather in that kind of a setting?

Tom:

Well, he was a very, a very gifted, very talented, ferociously hardworking person, a real immigrant success story. Uh, and he always emphasize hard work and he emphasized a promotion and he emphasized he was, there were scarcely a day, it wasn't in the newspapers in New York at his restaurant. He gave free meals to journalists and, and uh , was quite a character, I have to say.

Dr. Shepp:

And this was [inaudible] , is that correct? Absolutely. Yes. So very, very successful, well-known restaurant.

Tom:

Yes. Unfortunately, there was some family splits early in life and it was sold in the late fifties. And he, but he was a real New York character, real New York showman and uh, and his own natural way. You look at the way he dressed , uh , the , for the ties he wore and, and just the personal approach he gave to every, every customer at every table , uh, felt Geno Leoni was really focusing on them and he just could do something like that. He brought politicians, he brought famous performers, actors. It was at 48th and Broadway in New York, which is a theater district. And so a lot of , uh, that world did affect me as a boy.

Dr. Shepp:

It's interesting that you talk about the, to speak to somebody as though they're the only person in the room to really give that attention. And , and if I could just draw the parallel to the current work that you do now, because I imagine that's a lot of what you need to do when you speak to those, those 12 people on the jury , um , is, is to make them feel as though you're speaking directly to them and , and connecting directly to them.

Tom:

Well, I , I don't want to overdo the performance aspect of this. And by the way, the word performance , uh, is somewhat of a loaded word to me. And I'll explain to you why. Um , in my early thirties, I went through a very difficult personal period of my life. I went through a divorce. I had financial problems. My grandfather was dying. I was responsible for him. My father was, was dying. I, you know, was very involved in that. I switched jobs and I used to, I took my father to a cancer clinic in Mexico for alternative methods. I used to replace my sister and weekends at the clinic. And it was a tough time in my life. It was the first time, so many problems had converged at once. You know, we all always have problems, whether we're young, old, whatever. But this was a real crisis period for me. And I came out of it. Uh, when the, when the smoke cleared, I was somewhat of a withdrawn individual. Uh, I have , uh , I have a very introverted side anyway. I have a side that has always liked to just be alone and observe people anyway. But at this period in my life, I knew that something needed to change. Uh, I had lived a life that looked good on paper and in my opinion was not, and I was willing to face that. So among other things, I took a few acting classes, I took a method acting class and I took a sit situation, comedy class. I taught the sit-com class because I felt like I hadn't laughed for a long time. Uh, I felt very withdrawn. I took the method acting class because I was at a bookstore and I'm a prolific reader and I love you as a bookstore is and lament that they're going out of business so much today. But I was at a used bookstore buying a bunch of books and I saw these tapes, the craft of acting by a fellow named Eric Morris for five bucks. And I bought them, listen to them. I called him up and said, I'm not an actor, I'm a lawyer. Um, but your class interests me. I listened to some audio tapes and I said, would you be willing to let a lawyer show up? They said, sure. And I've actually counseled lawyers before, so I'll never forget a , and this was in the 80s, the mid eighties. I went to one of his classes where he had actors getting up on stage and doing various exercises that he required them to do. And I was horrified at what I was seeing. Um, and I said to him that this looked almost too difficult for me cause he had actors going into anger at parents said anger at various issues and conversely, great joy in their life. You know, you had them looking at empty chairs where they would match in apparent was there, and they would tell them what they had done to hurt the actor or conversely, all the wonderful love and things that they had done to help the actor. And they would ex , he would explore feelings. And I was not someone who felt that comfortable exploring feelings like that. So I remember he asked me to get up and just say who I was , uh , my name. Uh, how I grew up , uh, my education, what I do for a living. And he said, stop. At one point I've already got him . He said, you're someone who basically uses your intellect and your ability to articulate, to hide what's inside of you emotionally. And he said, you have a lot of ways of getting away from being hurt emotionally. And he said, I'm, if you do this class and I'm urging you to do it, he said, I'm going to have you doing exercises that are going to be very difficult for you. They're going to involve antilogic, anti leadership, anti control. And I ended up attending this class once a week for a number of years. Um , not so much to be , uh , a lawyer, but to be a person. And I learned that performance involves far more than artificial, contrived , uh, fake ways of behaving. That true performance involves who you are as a person, your emotions, your depression, your anger, your , your anxiety, your great happiness. Uh, your , your , uh , gratitude. I mean, whatever the panoply of emotions inside you are real performance is you. And he said to me in that first evening, he said, the whole purpose of this class is to know who you are and be comfortable with it. No more, no less. And he said, the great performers really are themselves. Whether it's in a part, whether it's, you know, on stage, whatever it may be, they really are themselves. And I did this class, I read a lot of his books and of course I was a prolific reader on trial lawyering. And I really concluded, based on my observations, I used to run down to watch famous lawyers try cases wherever I was. I would read their books or books about them. And I came to the conclusion that the most effective trial lawyers were really themselves. And at some of the most effective trial lawyers were not terribly dramatic or theatrical. Uh, and they were somewhat boring, maybe dull , maybe methodical, but they were really who they, who they are. And some of the least effective trial lawyers were very theatrical, very , uh, very loud, very colorful, and they were the least effective at getting their message across. So authenticity to me being who you are no more, no less is a major component of performance and contriving a role and putting on airs and putting on fake anger or fake laughter is not what performance really is meant to be at all. So I wanted to, let's to lay that out for you so you understand where I'm coming from. I fear that a lot of the listeners might think the word performance can connotes something very contrived, something very fake, something very artificial. It can if you don't know what you're doing. But I think performance when done well and done properly is a lot deeper than that.

Speaker 4:

[inaudible]

Dr. Shepp:

You've articulated very well some of the things that I often talk about in my work with clients, because performers, regardless of their craft, whether they be actors, whether they be business leaders, whether they be attorneys, whether they be athletes, often come to their work with a sense of needing to either prove something or or pretend about something and it's actually counterproductive to their performance. So to be able to eliminate that , that artificial nature and find a way to connect to one's one's own self, one's own values, one's own constructs, one's own ability and have that be more authentic is invariably going to enhance someone's performance. I'm glad you clarified the word because I do think that it's important to do that because in my line of work and those who are listening who might come from a background of performance psychology, we understand it to mean being able to, to work at one's best and optimize the talents and the skills that they bring to the craft that they, that they engage in. But listeners outside of performance psychology might associate that with a different connotations . So I appreciate that you did that.

Tom:

Well, I've never studied performance psychology, so I know nothing about it. Uh , I know what I've done , uh , therapeutically and to improve myself and also in the, in the court room . So that's kinda where I come. So some of your, some of what you talk about may or may not be familiar to me given the kind of work you do and the kind of work I do, but, but certainly happy to talk about it.

Dr. Shepp:

We might use different terminology, but I would imagine that there's a lot of overlap because you, you obviously are aware of the dynamic that's happening in a courtroom. I mean, you , you must follow , um, body language of jurors and, and um, and, and what their eye contact might be and what some of the , the looks on their faces might be. And , and you're not a mind reader, neither am I. um, people might assume that sometimes about you as an attorney, those on the outside just as they do in , in my profession, but you're obviously not a mind reader. Get your , you must be a keen observer.

Tom:

Well, I'd like to think I am, but you only have so much to work with. For example, a jury selection goes fairly quickly in a courtroom much too quickly to really understand who the potential jurors are. Uh , when you're given an opportunity to question them, which you're not always given , uh , particularly in federal court where a lot of judges want to kind of monopolize the questioning and get it done. Um, you know, first of all, if you're allowed to question, it's not that long. Second of all, people are complicated that sometimes they don't know who they are themselves, let alone you figuring out who they are in 20 minutes. Um, so it may not be as , uh , insightful a process as you would want it to be or hope it would be, but nevertheless, you've got to deal with the cards you're dealt. So yes, you try and figure out in a generalized sense what kind of juror might work best for you in a particular case. Um, uh, but that's generalities. Who are these people really not easy to say. Sometimes you get an instinctive, intuitive feel for someone. That's powerful. Cause I like to think of myself as an intuitive, instinctive person , uh, as well as dealing with legal issues and factual issues. Uh, and keep in mind that in college, in law school, nobody teaches you EEQ they basically teach your IQ. You know, people come out of law school I think less comfortable and less insightful about human beings than they were when they went in. That's interesting because you will look at students who come out of college , um, where they spend four years interacting with a wide cross section of people , uh, developing a , hopefully a sense of who they are, taking a wide variety of subjects. Um, they show up optimistic and, and uh, with a glow in their eye and an excitement to law school. And three years later after having argument drummed into them and Socratic method drummed into them and facts drummed into them, they seem less happy, less healthy and no one has , nobody has taught them how to evaluate human beings, how to judge human beings or how to relate to human beings. [inaudible] I think one of the fallacies of legal education is that people aren't taught enough how to behave in the courtroom , uh, when they're given the opportunity to represent, you know, clients. By the same token, you look at doctors, you know, they have to, they get out of medical school and they have to go through a residency period , uh, where they're dealing with practicality. But people get out of law school passed the bar, which is an academic exercise and suddenly they're have the right to have lies in their hands. And I don't think it's necessarily well done the way we do it. And that's been, this has been a point of criticism for by trial lawyers for many years about our legal education. Yes, you can take trial practice in law school and most people do. Yes, you take a course in evidence, but do you really know what the court rooms like? They really don't. Um, and there's no extra year treating trial lawyers as a specialty that deals with emotions, deals with human interaction deals with judging and evaluating people, communicating with people. You don't have much training in that.

Dr. Shepp:

And yet that's so important in the work that you do because you must have, I , I remember you saying in an interview that you, you try to spend some portion of your day to find out at least one thing about client that you're working

Tom:

with that will help them to be humanized. Well, I spent a lot of time early in my career defending gang members in Los Angeles and the deep South. And you know, in the early nineties , uh, LA was a slaughterhouse, the gang violence, Crip shooting, bloods, blood shooting Crips , uh, gangs from East LA shooting each other. I mean, this was going on every night in the late nineties because in the 80s, the advent of crack cocaine basically decentralize and disorganized the drug business in Los Angeles. Whereas it used to have some powerful people who controlled it alone. Now you had, you know, small time crack dealers trying to protect their, their turf, their block and make money. And it increased the amount of violence tremendously. Uh, decentralizing the, the, the illegal drug business ended up with a , uh , a huge violent aftermath which was going on on a daily basis. And young men were just in shooting each other every evening in South LA and East LA was horrific. And when society is faced with a threat like this , uh, whether it's an external war, whether it's an internal war, which it was, society tends to find ways to deal with it. And the first thing is that go our civil liberties when our country, our society is at war, civil liberties are the first things that people are willing to do away with to deal with this war. And what I noticed was that the LA district attorney's office, which is the largest district attorney's office in the country, over a thousand district attorneys larger than any other city, they had a hardcore gang unit that was designed to prosecute gang members. And they were prosecuting gang murders all the time. And what I learned was that every other unit, whether it was domestic violence, whether it was special crimes, whether it was insurance fraud, every other unit would not bring a case on the basis of a single eye witness identification. Unless there was evidence to corroborate that, I wouldn't say identification. The only unit in the DA's office that was bringing criminal charges based on a sole eyewitness ID, even if there was nothing to corroborate, it was the hardcore gang unit because there was such a fear of gang members. There was such a fear of this violence escalating out of control that they wanted to just get these people off the street and lock them up. And I was bothered by that. I understood the impetus behind it, but I was bothered by it. So I said to myself, you know, these young men from South LA, they're being railroaded right through the system. If they have a tattoo or if they have a moniker, you know, jurors, some other parts of town are willing to just assume that they're, they're violent, they're guilty, they're criminals. They may not be, they may be kids that walked out the door and on the way to school, had to deal with gang members, had to play Kate them, had to play along with them without really doing anything wrong. But the system was just washing these people away. And I saw young prosecutors with elite educations like myself , uh , who didn't grow up in these neighborhoods, like I didn't , uh, just assuming they're all gang bangers and, and, and de-valuing them by definition from where they came from, how they dressed, their race, their income level, whatever. I didn't like it. So I failed. You've got to find a way to defend your clients effectively. And I decided the first way was to humanize them in ways they were being, they were not being humanized effectively in court. So I would hang out with the family. I would go to the neighborhood various times a day. I would try and find out how my client lived and, and what influenced , uh , for good or for not good , uh, in their lives. I, I'd ask them what good you did. Do you go to church? Do you , do you try to help people? Who's the last person you tried to? You tried to help in some way and why didn't you do that? And try and find the human side that maybe no one had , had examined before and then try and bring that into the court room . And I discovered that I was much more effective at defending these cases than most lawyers I knew. Um, again, we don't get out a lot. We don't learn in law school how to humanize a client. We don't learn how to humanize ourselves, let alone the client. So I think that's my response to what you're talking about. Uh, I would put on character defenses when nobody would do it. Um, there was a thought that if you put on a character fancy, you opened the door to the prosecutor to bring an evidence of bad character. But my thought was they already have destroyed the, the reputation of the client by virtue of their charges in their case. Um, show them who the client is. And I would put clients on the stand more than others and ask them about their upbringing, asked them about their development , uh, asked them about obstacles in their life , uh, and then put on character witnesses if I had them to basically say what their reputation was. And a lot of them were just fighting a survival battle to deal with the gangs in their neighborhood without being in gangs at all. Some of them were trying to impress the girls by, you know, wearing tattoos and doing things. And, and no more than that. Some of them were really hardcore gang members and some of them were not. And to bring in the complexity of life in neighborhoods where the jurors from other parts of town had never been a, was part was a challenge. But something I tried to do in , in my defense of , uh , of these cases

Dr. Shepp:

and this was more than a legal strategy to me. It sounds like you have a set , you know, a high E Q emotional intelligence , um , quotient that would lead you to understand the importance of people being able to see another side of the defendant or , or of your client. And is , was part of that , um, understanding of the importance of that. Is that something that came through your work in method acting and connecting to your own sense of, of emotionality?

Tom:

Well, I think we're all a sum of everything we do. Life, you know, good or bad. Uh, our victories, our defeats, our great moments are at sad moments, whatever they may be. They all make up who we are as people. So looking at it that way, I think everything I did contributed to, I think I had compassionate parents who were very compassionate, kind people. Um, did not like racism, did not like de-valuing people based on race or religion, that kind of thing. Um, my upbringing was primarily minorities on the East coast, Irish and Italian. I have two Irish grandmothers and Italian grandfather and uh , my other grandfather was French and Irish. Um, the Italian influence was more predominant growing up. Probably than the Irish influence , but I have more Irish blood in me than anything else. But nevertheless, I grew up with an interest in people. The restaurant business, which my grandfather and father were , were in, did expose you to a lot of types of people. Um, so I think I'm someone who grew up with maybe a little more empathy than most people. Uh, I think the, trying to figure out what a strong man was growing up was difficult because my concept of a strong man was not someone who was particularly sympathetic or sensitive or caring. And I had to deal with that issue as part of my upbringing. I think a lot of men in those days had to deal with it and probably still do. What's a strong tough man? What's a, what's a real , uh, a real masculine person like, and what's, what's, what's he not like? And that kind of thing. So , um, I think, well , what , what the, what the method acting did was just helped me understand myself and not be afraid of my feelings. You know, for example, I remember there was an exercise where we had to get into depression when we'd been depressed. We had to lie on the floor and close our eyes. And think of the last time we were deeply depressed and dwell on it. And this was so hard for me because to me, when you've been depressed, you want to get away from it. Do you want to bury it? You know, run as far as possible. What I discovered was that actors saw access to when they were depressed as a great virtue because if they were required to play a part of someone who is going through depression or is depressed, they want to borrow on their own experiences. I didn't know any of this until I got in this class and found it very hard to deal with, but ultimately very helpful to me understanding my strengths and weaknesses and what I ran away from in my life and what I would try to Barry cause I wasn't raised to, to access these feelings and, and confront them and think that was okay. Um, so listen, as far as jurors go, we live in a time where people are much more sophisticated than maybe 30 years ago. And they've watched TV, they saw the OJ Simpson case, which was a watershed case in American history, it seems like yesterday to me, but it's 25 years ago. And people watch what lawyers do and witnesses do, prosecutors do. And there was all sorts of commentary, some good and some not good surrounding that, that trial, which took over America for about nine months. And I think as a result of that , uh , potential jurors are much more versed in what happens in a court room for better or for worse. I mean, it's , society seems to be fixated on true crime stories. Now you've got ID channel, you've got other channels like oxygen and a and a trying to develop their true crime, you know, chapters. Um , and it just seems like people can't get enough of date line and 48 hours and 2020. And so you have jurors interviewed on these shows, you have snapshots of the courtroom on these shows. And I think, you know, that there were probably good and bad things that are coming out of this, but nevertheless, I don't think people are as naive when they walk into a courtroom. Uh , I think they have expectations, which may be good or not good. But I think the worst thing a lawyer can do is be a phony. You know, I think if you have fake laughter and fake reactions and fake gestures, and I think jurors are going to see that pretty quickly. Uh, court rooms are very counterintuitive to what a lot of people expect. Uh , there's something about a courtroom that's different and people don't always expect it to be different. Um, uh, sometimes people who are effective salespeople outside the courtroom or not in a courtroom, I've always thought politicians who are great at selling themselves in a certain context outside of court courtroom tend not to be the best witnesses. You know, I don't know how to explain it except that a lot of what happens is counterintuitive and jurors take their job very seriously. They know that what they're being asked to do is going to affect someone's life. In one way or another. And I think, you know, although they're human and they're not perfect, I think they try to rise to the occasion as best they can to do what's right. Unfortunately, they're only human. And the trial process is not a perfect process for bringing the truth in. You know, we're, we're really reconstructing what happened somewhere else , uh , according to certain norms and rules and procedures. And that can never be perfect and there are always going to be miscarriages of justice. We see it all the time. I mean , the last I checked, over 300 people had been released from lengthy prison sentences or death sentences or life sentences because of DNA. I mean, those are 300 people where there was DNA to check. And as a psychologist, I'm sure you know, the problems with eye witness identification, they're just, you know, Legion Juris can be very effective when someone says, I'll never forget that face. And they pointed the person and they may be completely wrong. And they're in many instances where they have been proven completely wrong. They don't, they pick the wrong person. I mean, I'll never forget , uh , when I first agreed to do a death penalty case in the state of Alabama, I agreed to do it free. This was 20 years ago. It was a homeless black man charged with killing of beautiful white girl and a trendy part of Birmingham, Alabama. And there was tremendous emotion and passion behind this case. And two white lawyers were appointed to defend the person I agree to defend with them. [inaudible] they were getting racist threats on their answering machines. Uh, the N word was being used, et cetera. So I agreed to help them. And I discovered that a, I would've sided eye witness identification expert had never testified in a criminal case in the state of Alabama. I'd been using such experts in Los Angeles. So I found a psychologist from the university of Alabama at Birmingham who taught a chorus that dealt with partially dealt with eyewitness identification and the problems. And you know, it was assumed that if somebody's in the heat of, of, of violence or in the heat of a crime looks in someone's face, they'll remember it. Um, it can be exactly the opposite. But in my trial preparation, I called a white woman in North Carolina who had been raped by a black man and who had testified at the defendant's trial. She said, you know, this man was on top of me. I could not overpower him. He was too, too strong for me. And I looked at his eyes and I looked at his nose and I looked at his mouth and his ears and his cheeks and his teeth and his hair. And I said, I'm going to remember that face. And she pointed at the defendant and said, that's the man that raped me. He was convicted, he went to prison. And there was a reversal on a technicality. They had a second trial. She said the same thing. And then one day she got a call from the investigator who said, I've got good news and bad news for you. I'll start with a bad news. That's not the man who raped you. And the good news is we found the man who raped you. He's in another prison. We did a DNA match and they released the black man. She had identified and she was just horrified by what she had done. Uh , she said he was very forgiving, said, you know, you weren't trying to lie or anything. I know you thought what you were doing was right. But she just, when I spoke to her 20 years ago, she was speaking around the country about the problems of, of particularly cross racial eye witness identification and the, the studies consistently show that the races have trouble identifying other races. And when you mix in violence and shock and this kind of thing, you make it even more difficult. But Asians identifying Hispanics, Hispanics, identifying whites, whites, identifying blacks, I mean everybody has much more difficulty identifying people in another race, particularly in a setting like this where there are shots and there's focus on the gun and , and there's poor lighting and, and people have all sorts of emotional deficits. They're going through this. So , uh, that had to be pointed out. Um, and we did point out in the trial and it was an acquittal which generated a lot of anger in parts of town. Um, again, my co-counsel got death threats on his machine and family members are pointing at me in the court room . And, and I know what we did was right. I know this fellow didn't do this. Um, but nevertheless , uh, the court room is not perfect. It's the best legal system in the world, but it's not a perfect system. And we need criminal offense . Lawyers who are courageous and prepared and dedicated to fight even when public opinion is against them. And even when the media is conditioned, you know, potential jurors for a conviction , uh, we have to make the system work , um, more than anybody , uh, to protect our clients and protect the system. So that's maybe a roundabout answer to your question, but , uh,

Dr. Shepp:

now it's fascinating to me because you're talking so much about the complexity of what you need to manage in the courtroom, but also in your profession. Because here you've talked about the vulnerability that you gained , um, and , and the way it enhanced your own life experience to connect to your, to your emotions. But at the same time, you have a different side of things where just the, the work that you do , uh , might make you vulnerable and other ways vulnerable to people's perceptions, to their opinions, to their judgements of you. I mean, receiving death threats and , and, and looks from people in the courtroom. And I would imagine it looks from people that you still get for defending some of the people that you've defended. And so that, but that is contrary to the vulnerability that you spoke about.

Tom:

We're all complicated. I guess I am too. But you know, I, I think the , the thrust of your interview is performance in the court room and performance means a lot of things. I mean, it means trying to figure out what the best defense for your client may be given where you're trying the case given you know, what the evidence is given the times you live in. Um, performance can mean picking a jury. Um, that's, I guess you'd call that performing for your client. Again, it's not some artificial theatrical thing. Um, but I think insight into human nature, which again, law school is just do not teach and most lawyers and law firms spend no time on can be very important, particularly in criminal defense. And I'm talking about all kinds of cases cause I try white collar cases in federal court. I try not unlike holler cases and in state court and everything in between. Um, but let me, let me mention jury selection in the Michael Jackson case cause there's an aspect to it that uh, you might be interested in. And that's the issue of race in the court room . Um, when I took over the Michael Jackson case, I immediately change a lot of things that were going on by prior defense counsel that I didn't approve of and didn't like and didn't think would be terribly effective for Michael. First of all, I learned something about Michael. I talked with him extensively and I did research on who he was as a person. I'd always liked his music, but I never was a real student of his music. And it became pretty clear that he was a person who brought races together, didn't divide them. So when I got into the, you know, there was the song he sang , it doesn't matter if you're black or white. He had adopted children of other races. He plan to do more of that. Uh , he was a person who wanted to bring all races together. But when I was observing how the defense was conducting themselves in the Michael Jackson case, before I got in, I was seeing just the opposite. Michael would show up with the nation of Islam surrounding him, providing security. And I understood why he wanted it. He was felt terribly threatened. Uh , his father, his siblings were going on TV, calling this illegal lynching and really making race a predominant issue. And I very quickly said, I don't want the nation of Islam to be prominent around Michael. I don't want his, his siblings or his father going on TV or radio, calling it a racial and perform of injustice. It may be, but I don't want them saying that because this is going to be tried in a predominantly white community. A worry , we may not get one black person on the jury. And Andy , we didn't have a black person on the jury. We had one black alternate who never made it to the main jury. But I said, look, this is your, where you chose to live. You, you hire people of all races, people of all races that are in your immediate family. I mean, I said, look, we have to show that you bring people together that will appeal to white people. Particularly racial division will not appeal to white people at all walking into that courtroom. Um, you know, because white people, particularly after the, you know , Simpson case, which was very divisive , uh , where there was such a difference of opinion given people's race , uh, as to whether the verdict was appropriate or not. And so I changed that whole part of it. Now when we were picking a jury , uh, you can imagine the panel showed up. There were media everywhere outside the courthouse. There was an effort by the court personnel to hide people from the media as much as they could. But this was the most watched case in American history. There were over 2200 accredited media in Santa Maria, which is Northern Santa Barbara County watching the trial that's more than OJ Simpson and Scott Peterson combined. So there was all sorts of concern everywhere as to how media could affect what goes on in the courtroom. But nevertheless, the jury comes in, we've got three white male prosecutors and their white male jury consultant. Okay. Uh, the defense is white, a couple of white males and an Asian American female. Okay . But I had studied the prosecutors how they were behaving from the moment I met them, I felt they were just, hubris was everywhere. They just felt they could never lose this case. They were to be movie stars around the world that they won. And they seem to be very full of themselves. And I know white men and they tend to be very deficient when it comes to understanding of the black community, black history, black neighborhoods, black people, et cetera . So you don't have much of a black community in Santa Barbara County. You very small one. So I observed these prosecutors, how they behave and how they reacted. I would ask them questions when we had moments, you know, talking lawyer to lawyer. And I said to myself, they think there's no way the defense can win. And the defense, all blacks are going to be behind Michael Jackson and [inaudible] is going to want a black on the jury to hang the jury. That's a very simplistic way of looking at things. But that's what I felt they were doing. And that's what I used in my jury selection. And I'll tell you how I used it. Um, you have a , typically in a trial, you have a panel of initial jurors and each side has a certain number of challenges. They can exercise , uh, to remove people without giving a reason. And these are called peremptory challenges. You don't have to give a reason, but you can't remove someone if you violate the constitution. In other words, you can't remove someone's solely on race or solely on gender. So miraculously on the first panel, a black woman appeared and they immediately removed her. So I asked to go to sidebar and raised a constitutional objection that they were doing this Jeff's on race and my motion was denied. To my astonishment, another black woman showed up on a later panel and they removed her immediately. So I went to sidebar again, made a constitutional objection and you know that they're not allowed to do this. And it was denied. They came up with reasons that they claim were race neutral for removing these two black women. So I think I gave them the impression that their suspicions of me were confirmed given my objections and how I behaved. So we had a jury , uh , that I liked and I had a number of challenges left and they accepted the panel. I think leaving a few jurors on they didn't particularly care for. But here's what I thought they were doing. There was a young black man in the alternate ranks who if I kept raising them , making objections and moving jurors out, a, I should say objections. If I kept challenging jurors and moving them out, there was mathematically I could end up with that young black man on the jury. And so they kept accepting the panel and accepting the panel, hoping I would use up my challenges and my feeling was he'll get beat , they think he'll get on the jury then then they'll remove and a bunch of others they don't like. And at one point they accepted that panel. And with more than half my challenges remaining, I accepted the panel and I saw their jaws drop. I saw their jaws completely dropped because I don't think this was the panel they really wanted. They were playing their race strategy and I called their bluff and got them. The jury didn't have one black person on it and Michael Jackson was acquitted of every single count . Um, so race comes into the courtroom in various different ways. Um, this is one way it worked out. Um, but I don't think very many people knew about at the time or figure it out. And, and I, by the way, had to convince my client and his family that I didn't need necessarily need an African American juror cause they were concerned about that as you would expect. You know, they knew the history of black celebrities being unfairly prosecuted and convicted in America. They thought this was horrible in justice. They thought black jurors would have more of an understanding of that. You can't blame them for thinking that. Um, but I told them, I said, look, the way I'm going to present this defense, don't worry about that. It's not gonna, it's not gonna matter. And they think I'm just totally dependent on their concept of what a black juror will do and I'm going to use that against them. And that's what I did.

Dr. Shepp:

It's very astute. It speaks to, again, to your awareness of the psychology of human beings and how that impacts your work. And I read and understand that there were a number of things that you needed to overcome along that line with regard to the judge and some of the rulings that he made and um , which I'll let you speak to, but, but um , along with that, if you could just answer how you manage the unexpected when it arises in the courtroom,

Tom:

you do your best. I don't know how else to answer that question. You know, it's unexpected. I think a lot of effective trial lawyer thing is good reaction. Um, I think a lot of bad trial lawyer airing has poor reaction. Um, you know, in the late 1980s, I was with a civil law firm for a while and I tried a number of legal malpractice cases, civil cases for the plaintiffs and for the defense. And what I discovered was lawyers were the worst witnesses on the planet and the easiest to examine, and I would have thought going into it, it would be the opposite, that lawyers would be particularly astute about the courtroom and would know what they're doing. And it turned out to be exactly the opposite. They were the easiest witnesses to examine and make it look bad. Why was that? Because lawyers are taught to be very careful about what they say and write and to carefully consider various alternatives. Again, be before they speak or before they write. And you would ask a lawyer the most basic question, you know, where were you? And the lawyer would hesitate, roll their eyes, think about the perfect language to use. And then in the process, your typical juror who's not a lawyer and thinks people just respond is saying, this guy's a liar. I don't trust him . Or, you know , um, you'd ask , uh , did you see the following? And they would roll their eyes, think their head goes up, their head goes down, they took turn to the left, they turned to the right. They finally look at you and say, I have no general recollection. And then of course you would look them and say, well, do you have a specific recollection? They would give the same process. And I'd say, sir, look at the jury. Answer the question truthfully. Did you see this or not? Now this kind of thing, you could make them look so horrible and they actually thought they were doing a good job. You know? So , um, one great thing about trial lawyering as a courtroom, as the laboratory of life, it's where every aspect of human nature is , is alive and well , uh, for a variety of reasons. And everybody has to do their best to make the system work in the most opportune way at Ken . Jurors have to take their oath seriously and do their best. Judges have two prosecutors have two defense lawyers, have two bailiffs, have two witnesses, have to, you know , uh, it's an interactive thing. Um, and every trial has a unique chemistry that has never been there before and never will be there afterwards. And spontaneity, given that unique chemistry and the way trials move , uh, is extremely important. You have to be able to think on your feet, react, respond, keeping in mind your jurors , looking at you, the judges looking at you, witnesses are looking at you, your clients looking at you. Um, it's a very dynamic thing. Uh, I feel very blessed to be a trial lawyer. I'm very lucky that , uh , I found this profession and um, I think it's fantastic, but it's not for everybody clearly for one of the reasons being what you, the question you just asked, not everybody feels good on their feet responding cause witnesses will do things that nobody predicted. Someone you think will be a good witness. It turns out to be awful for you. Someone you thought would be a terrible witness for you ends up helping you a strategy shift in the middle of the trial and the Michael Jackson trial, we expected a seven to eight month trial. Both sides did and you know, it ended up about five months because I cut down on our witness list considerably when I thought we were doing well and I thought the jury is ready to ready to deliberate on this case. So I switched strategy very, very , uh, quickly and in a very significant way. I was asked, why are we not calling this jury , this jury witness and that witness? And I said, look, I think, I think this jury is Willis. I think they really seen the truth. I think they're getting tired. This has been a long ordeal . My instincts, my gut is telling me get this into the jury room now. And I operated on that instinct and this is where what you're speaking about, I think parallels a lot of

Dr. Shepp:

different crafts and lines of work that people might find themselves in where they have to narrow their attention to what's taking place in the moment. In order to have the most creative thought. I mean, certainly you prepare for a trial. Um, I'll speak a little bit later about the amount of preparation, but you certainly prepare your very well prepared for the courtroom. But yet at the same time, you really have to be present in the moment in order to pay attention to the, the number of things that you're talking about. Not allow those things to cause you to feel so much pressure that you, you become too nervous or , or that you lose focus. But instead to be able to have the freedom of thought, to think creatively and strategically.

Tom:

Well, that's true. Everything you said is correct. Um, as I said before, it's a laboratory of living and it's very counterintuitive process and doesn't always flow the way people assume it will . Um, I'm just reminded of an audiotape I heard in the mid eighties , uh, that was given by a well known trial lawyer named Jerry Spence. Uh , and Jerry Spence a was a great legal marketer of his talents and a , and a great trial lawyer. And, but he gave a very candid talk to a bunch of lawyers and he said, you know , um, you may think that the best trial lawyer in New York, the best trial or in Chicago is my major threat when I show into the will show up in those towns. Cause then he wasn't from there. He's friendly . Oming he said, that's not true at all. He said, my worst nightmare is the following. I walk into a courtroom and my opponent is a young woman fresh out of law school who is shaking in her boots is a nervous wreck, a clearly under confident and nervous about what she has to do. Um, you know, if it's, if it's the, if the president of the Chicago bar associs in shows up, I'm not worried at all. But if this woman shows up and as a nervous wreck in her opening statement and says, listen, I'm not experienced. I shouldn't be in the same courtroom as mr spans . Uh, please forgive my indiscretions. I may not always know what I'm doing. I'm sorry. Uh, what am I supposed to do when, when she says that, and I learned a lot from that. I still remember that speech because people have these stereotypes of what works and what doesn't work. Life is too complicated. People are too complicated. The courtroom's too complicated for that. And sometimes people who think that quote best unquote lawyer is, are very ineffective. And sometimes people watch a lawyer almost operating in a comical way cause they don't know and they're scared and they're inexperienced and jurors like them. So you know, the uncertainty of the courtroom can be exhilarating. It can be, but you know, a lot of the dynamics are very hard to explain and very hard to predict. But you do your best

Speaker 5:

[inaudible] yeah .

Dr. Shepp:

Does that shift as our culture shifts? So for example, now a where we find ourselves in the Mitsu culture and also with the dialogue that takes place, the knee jerk reactions that happen on social media, the dialogue takes place where there's so much vitriol and so much rushed to judgment does. Does that affect kind of the , the social laboratory of the [inaudible] ?

Tom:

I think it can. I think in defending some of these cases, I think it's wise to have females with you. If you're a man like me and you're defending a male charged with sexual assault of a female, I think it's wise to have some females on your team. I know that sounds very general and maybe not everybody likes hearing that, but it's true. Um, this me too. Movement is a, is a complicating factor in the court room because I support the me too movement. Uh, to the extent that me too movement, ferrets out sexual harassment, sexual assault , uh, taking advantage of women , uh, for various reasons , uh, that ferrets all that out in ways that have not been done before. I'm in favor of it. The problem is that we're, we're right now, we're in the most passionate phase of the me too movement and I fear that that's making false and flimsy allegations much more easy and much more effective than they should be. Um, and I fear that because all of us are affected consciously and unconsciously by what we hear in the media and experience in our lives . I fear a lot of jurors or walking into court rooms, presuming the defendants guilty when they shouldn't. And I think it's challenging criminal defense lawyers to really fight for due process of law. The presumption of innocence, proof beyond a reasonable doubt. It's making it much more difficult. And you know, when you're questioning jurors, they will always say, I'll be fair, I'll listen to the judge's instructions. And they may not even realize how unconsciously or subconsciously they've been affected. You know, 30 year old accusations are destroying careers before the, you know, the guy has a chance to even explain himself or, or, or defend himself. I don't think that's right. I think, you know, both sides need to be heard out because people aren't always truthful, not because they intended to save or lie. They're not always truthful because data and material that's gone into their head have now affected their perception of things. Um, look at the back. Do eye witness identification, look at the psychology of that. You know, basically part of the psychology of faulty eye witness identification is that when someone remember is just a few aspects of somebody they're watching commit a crime , uh, and then it's shown a picture and they pick a picture out. Uh, they now incorporate all the other and from then on they believe those other features are part of what they saw when they may not be what they really saw. So I don't like , uh , I'm in favor of me too. Of course I am. I mean, so the way a lot of women have been treated as atrocious in every walk of life, in every, in, in real, in by religious institutions, by Hollywood, by wall street. I mean, you name it. Um, but by the same token, you can't just presume people guilty because an accusation is made. You've got to look at why the person is making the accusation. Now what motivated them to do at what are they trying to get out of it? Um, so it's a complicated matter that unfortunately the extremist and me too are making difficult to deal with. Certainly in my business,

Dr. Shepp:

it's more of an uphill climb you have if you have the societal forces as well as the individual psychological forces that are already presuming things about you as a, as a defense attorney , um, or perhaps your client depending on his gender or, or position in life. Um, and , and so it's more of an uphill climb for you to have to overcome?

Tom:

I think so. I do think so. And I think , uh, things will even out as time goes on, I think some of the extremist reactions to it will balance out, but it's a very powerful, very important, very meaningful movement. I'm glad it's here, but I worry about the extremes.

Dr. Shepp:

I'm , I'm, I'm aware of the time and I, and I'm, you're , you're so generous with it. I don't know if you want to take a break or if I can keep speaking to you. There's, there's a lot more than I want to talk about. One of the things that struck me just in, in reading about you and listening to some of your prior interviews is the, the way you, you seem to be a value based attorney that your, your values and the things that you cherish , um , about life and find important seem to run us threads in , in what you talk about. And one of the things that stood out to me is the value of freedom. So certainly you talk about the presumption of innocence and that's part of one of the freedoms that we enjoy here , uh , as American citizens. But , but you also talk about the freedom to think creatively, the freedom to be the artist in the courtroom. You've mentioned that you're the artist and you hold the brushes and you make those decisions and not your client. You have the freedom to do that and kind of own that freedom in your role. But it seems as though that might be a value that you hold that, that value of freedom.

Tom:

Well, yes. I mean, it starts with a, an acceptance that, but for the grace of God, I could've gone certain directions that clients went. I mean, I was raised in an affluent home. There were problems, there were instabilities and insecurities and my parents were not perfect, but they were loving people. They loved me and wanted to do the best for me. And I was sent to good schools and a , again, mistakes were made. Uh, nothing was perfect. Um, we all have issues. We carry with us the rest of our lives sometimes , uh , from those early days. But nevertheless, I look at a young black man in Watts , uh, who grows up with none of my advantages. And the family unit for whatever reason, doesn't function. And young men want to identify with something and they want to belong to something and they want to feel protected by something. And I mean , given who I am and experiences I had and the influences I had, what I have behaved a lot better. If I had no family. And the gang said, where your family will give you protection will give you an identity, we'll give you power. And young man want power for example. What I affair it a lot better. I don't know, it scares me cause I just don't know. Uh, I would hope I would have fared better, but I don't know if I would have. So when I see the system take people like this and just squash them and just assume they have no redeeming qualities at all. And particularly when I see Ivy league educated, affluent , um, lawyers stepping on these people so horribly. And again, I know that some people have to be convicted and sent to prison. I understand that. And some people are just dangerous and vicious. I understand that. But as I, years ago I don't do as much gang defense. Now I do some , but I do more white collar work and federal work and um, but I still do. I do , uh , you know, a homicide case every year in the deep South free. I still do keep my foot in, in this particular part of society and part of the legal system when I see just the horrible aversion to finding anything good about these people, young men who want meaning, who want purpose, who wants some power or wants them identity, who have nobody saying, don't do that. You could do better than that. Young men who think there'll be dead when they're 21. Anyway, so what's the difference? Uh , and no church and no gang intervention group trying to help them and , and uh , it , it gets more complicated from there. Again, depending on the crime and where someone comes from , uh , a father tries to put food on the table and can't. Um, I look at all this and I say, we, our system can't just SAP all the humanity out of this person. System must in some way look into who the person is and find some value and not just summarily throw them on the trash heap for the rest of their life. Um, I think it's a challenge that society has. It's a challenge we as human beings have. It's certainly a challenge.

Speaker 1:

Criminal defense lawyers have.

Speaker 6:

Okay ,

Speaker 1:

this has been managed the moment with dr Shep, my physical action of moments. It's how you manage the moments that makes the difference. My sincere thanks again to Tom Mesereau for joining me for this conversation, and thank you for listening. Don't forget, we'll have part two of this conversation with Tom coming up next time. You can subscribe to the manage the moment podcast for free just by clicking the subscribe button wherever you're listening to this podcast, and then you'll be sure to get the newest episodes as soon as they're uploaded. And for more information about the manage the moment podcast, you can see the episode notes for this broadcast. You'll also find us on social media, and I'm on Twitter and Instagram at dr Shep . Thanks so much for listening and taking the time to share these moments with us. Until next time.

Speaker 6:

Right .