Episode Synopsis: Studying philosophy and Japanese in college, Atlanta attorney Anna Cross has always been a deep-thinker with her eyes set on success. After decades of triumphant trials, Cross shares what she’s learned from her years of prosecution: how to set the pacing of a trial, how to improve your cross examination and the attitude to have when you enter the courtroom.

Podcast Transcript: The following is a transcript of Episode 10 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Anna: I want the right result. So, you’re correct. Of course, there’s a strategy, I think you get more, it’s a more pleasant environment. And everybody does better professionally when you can make small accommodations to each other, and it just works more smoothly. So sure, there’s a strategy to it. But there’s also kind of a philosophy to it, if you want to go back to that. I want the right result in a case and the right result is something that I feel good about.

Scott: That was an Anna Cross talking about her professional approach to advocacy. I’ve worked with Anna for years when she was in the major case division and appellate divisions in various metro Atlanta, and Fulton County, DA’s offices. And Anna is as professional as she is capable and intelligent. I really enjoyed spending some time with Anna in this podcast. And I think you’ll love hearing a lot about her approach. And her just absolutely excellent advocacy skills. So enjoy this podcast. And if you are interested in other podcasts from “The Advocate’s Key,” please subscribe. Make sure that you leave a comment or a like and listen to other podcasts as well. You’re listening to “The Advocate’s Key” podcast. You can find out more about me at scottkeylaw.com or email me at scott@scottkeylaw.com or give us a call at 678-610-6624. Anna Cross, how are things?

Anna: I’m doing great, Scott, how are you?

Scott: I’m great. I was in court in person for the first time in forever yesterday. And fortunately, it was a calendar call. So it looks like those were coming back in person.

Anna: I hope you were at least in the top 20 of the calendar.

Scott: I was nowhere near the top 20. And I was very happy about that.

Anna: Oh, really?

Scott: Yeah. It’s one of those situations though, where sitting in the jury box it sort of forces you to take a second look at the file. And I found great motions I could file, which I always do if I ever stare at a file for long enough.

Anna: You’ve always been very productive with your time.

b: Particularly, when I’m procrastinating and like it’s crunch time. All right, so I always ask anybody that comes on the podcast. I don’t like to introduce people. So I’m gonna ask you a question that sounds very existentialist and philosophical. And you can go there with it. But it’s really a basic question. Who is Anna Cross?

Anna: It takes me back to my philosophy days in college.

Scott: Right, right.

Anna: I grew up in a small rural town in Pennsylvania. My folks still live there. And probably the biggest takeaway, or what my kids always laugh about when I talk about this is they were… It was a very small town in a rural area. And there were 32 of us in my graduating class in high school.

Scott: A private school?

Anna: Yeah, it was a small Catholic private school in an otherwise pretty small town anyway, so the public school wasn’t much bigger. But my school was, there were 32 of us in the graduating class and of that 32, I think, 24 or so of us had gone to school together since first grade.

Scott: Oh, gosh, okay.

Anna: Yeah. So when I went to college, there were 300 kids in my first college class.

Scott: Sounds like a big survey. It was a big survey introductory sort of class. So there’s 300 people not in your class, but in this class?

Anna: In the auditorium. Yes, I went to the University of Notre Dame, and there were 300 kids in my intro to English class or whatever it was. And so it was more than a little bit of a culture shock. But I persevered, I ended up graduating from Notre Dame with a philosophy degree. If you want to get all existential we can go down that path.

Scott: Oh, no wonder, everybody I ever say, “Who is so and so?” to, they just go, “Huh?” when I say, “That is existentialist,” they’re like “Whatever.” You’re the first person that almost went there.

Anna: I can Scott, I can. When this podcast is over. Let me know if you want to talk a little Descartes.

Scott: Okay, so why Notre Dame and why a philosophy degree?

Anna: I went to Notre Dame. My father went to Notre Dame, my older brother went to Notre Dame, grandfather was a big fan, so it was kind of a family thing. And I love football and philosophy because I had absolutely no concept of paying my own bills at that time. Because I would obviously not have chosen philosophy otherwise.

Scott: Yeah, either you wanted to be a teacher, you had no concept of what you wanted to major in, or you probably thought you were going to law school.

Anna: I thought I was going to law school. Yeah, I took a minor in Japanese. I actually thought I might go into Diplomacy State Department or something along those lines, so my philosophy and Japanese degree of course led me to law school.

Scott: Do you still do anything with the Japanese stuff? Do you still actively practice it or anything like that?

Anna: I don’t. I mean, at the time, I’m dating myself, but at the time it was the early ’90s. And Japan was a big no, no. A lot of business and kind of social ideas that the Japanese was gonna be a real valuable skill. And I like languages so I just kind of picked that up. I don’t do much with it now at all other than occasionally have a conversation with one of my old Japanese professors from school that I’m still in touch with. But that’s about it. I can count to 10. And I can tell you, I like your watch. But that’s probably about it.

Scott: That’s about the extent of my knowledge of French. Although, I’m trying to brush up on French on Duolingo. And I don’t know if that really gets you anywhere. Honestly.

Anna: Yeah, I’d like to think it does. I like to think that if I ever have spare time again then I would pick it back up and brush up on Japanese because it’s a beautiful language. I love it.

Scott: Yeah, I mean, same with French, although Japanese is a whole another level of language learning. I just couldn’t imagine even starting that.

Anna: Do you want me to tell you I like your watch?

Scott: Yeah, please tell me. Yeah. Let me hear you say it.

Anna: [foreign language 00:06:19]

Scott: I can’t wait for the people to transcribe their podcast to get to that portion.

Anna: I sincerely hope there are no native Japanese speakers among your audience.

Scott: So were you the first in your family to want to be a lawyer? Were there other lawyers in your family?

Anna: They were not other lawyers in my family. I don’t know that it… I certainly, didn’t go to college thinking I want to be a lawyer. But once I had my philosophy degree firmly in hand, then I decided that yes, of course that’s exactly what I’m going to do. I took a year off before going to law school. But then I ended up at Emory Law.

Scott: I see. Oh, so what did you do in the gap year? Did they even call it a gap year then?

Anna: They didn’t. The millennials, I think coined that one. At the time it was just I’m taking a year off because I can’t stomach the thought of going through another three years of school. I actually did a year of public service. Community service volunteer work was very, very big at Notre Dame at least when I was there, and everyone I think everyone I knew volunteered doing something. So it was encouraged, and it was supported, and I volunteered all through my time at school at the pediatric ICU, the NICU at the local hospital. And again, it was the early ’90s and HIV positive infants and children. AIDS was a huge problem. It wasn’t nearly as treatable as it is now, at that time, and there were a lot of kids in the hospital, infants born HIV positive.

Through that work, I found a foster care organization in Houston, Texas called Casa de Esperanza de Los Ninos. It was a private foster care organization that took infants and children up to age six, who were HIV positive or had full blown AIDS or were otherwise medically fragile. So I went to work there for a year before going to law school.

Scott: You know, I’ve recently watched “Dallas Buyers Club” for the first time. And I had forgotten…I was very young then. But I had forgotten just what the public hysteria was about HIV in the mid-’80s to early… I’d forgotten that whole mindset and issue. So, to do that it’s a wonderful thing that you did anything like that. But to do that, in the time when people were kind of crazy about this topic.

Anna: They were and honestly, Scott, that’s why I did it. There were volunteers at that hospital who wouldn’t touch the HIV positive infants. And certainly there was enough known…not everything was known at that time, but there was enough known to be comfortable that that wasn’t something that was dangerous or proper precautions, everything, and everyone would be fine. There was no danger to handling a child who was HIV positive. But there were people who just refused to do it. There was medical staff who refused to do it. And that’s why I was like, “Oh. There’s a need, I can fill that need, that is not something that I’m afraid to try.”

Scott: And so your day to day when you were involved in that, what were you doing?

Anna: So they licensed me, I applied for and I was licensed as a foster parent in Texas. They put me in a house with another volunteer and a charge account at the CVS and the local grocery store and they sent me kids. I could have up to six children in the home between the two volunteers that were there full time. And we had people who came in to assist, volunteers who came in a couple hours a week, things like that. It was a great organization. But they sent us kids. And for a time, a long time that I was there, we had infants who were like three months old, four months old and five months old. And we had those three kids for about eight months. It was pretty much like having triplets but triplets with a lot of medical appointments.

Scott: And at this point in time, you’re in your 20s, I suppose.

Anna: I am. Yes. I certainly, didn’t know what I was getting myself into. But I guess that’s probably good. I wasn’t afraid to try it.

Scott: And this was in a group home kind of setting. Is that right?

Anna: That’s right. Yeah.

Scott: Okay. And you did that for about a year, obviously. And then, was there ever a thought that you would just kind of keep doing this indefinitely, or what sort of swung you back to law school?

Anna: Well, I had always planned on, it wasn’t a career choice. It was always intended to be a year before I went on just to law school. And so during the time I was there, I applied and got into Emory, and eventually made my way to Atlanta.

Scott: Was your thought that you were just gonna be a lawyer of some sort? Or did you…? I mean, I’ve known you since. Well, I’ve heard of you since as long as I’ve been a lawyer, and we had one pretty huge case together when you were in the DeKalb County DA’s office, but did you think that you were gonna be a prosecutor when you went to Emory or did you know anything that specifically?

Anna: No, I did not think I would be a prosecutor. I don’t think it ever occurred to me that I would. Again, I liked the languages. I liked the idea of diplomacy. I was still thinking State Department or something international when I went to law school, and it wasn’t until my third year of law school, I interned at the Cobb County District Attorney’s office with Debbie Burns, who went on to the Court of Appeals judge. She sadly died a few years ago. But Debbie Burns and Nancy Jordan were my supervisors in the Cobb County DA’s office in the Appellate Division, and I thought, okay, this, maybe this one’s for me. I like this prosecution thing.

Scott: And was this interning, or was this your first job at a law school?

Anna: It was interning. I think I got credit, but it was interning at the time. And so I drove myself up to Marietta, twice a week. And it just amazed me, the work they did and how… I’d just never been in an environment like that. I’d worked in a law office before, and it was great, and people were wonderful. But this felt like a calling to so many people who were there. It was kind of infectious to be a part of.

Scott: And is that just being in a prosecutor’s office in general? Or is that specific to being in the Appellate Division?

Anna: I couldn’t… At that time, I just, I associated it with the Appellate Division. I never thought to do appeals before, though I always like to write and I was in moot court in law school and did well, I had a fun time doing that. So the writing very much appealed to me. What I found when I did that internship was I really liked appellate law. There weren’t too many careers. I mean, you have found one. But you’re kind of a unicorn in that sense. There aren’t too many careers doing just appellate law outside government work.

Scott: It was hard to figure out. I mean it was hard to…and a lot like you, I never saw myself doing that. And the other thing about you is, and I don’t know when you made this discovery. But you also are excellent at trials and a lot of appellate lawyers can’t pivot and take a witness or do an opening statement or do a closing or do… You’re good at complete litigation. Although, I think of you as an appellate lawyer first, but I know that you’ve tried cases as well.

Anna: That’s why I think of you as an appellate lawyer first. I was an appellate lawyer first. I’ve been so fortunate that a lot of my career, I’ve been able to do a hybrid of trial and appellate work. I started out doing appeals. And once I finished that internship, Nancy and Debbie were great and helped me get a job in the Fulton County District Attorney’s Office. And I started in the Appellate Division. But in that office, at that time at least…it was the late ’90s, they had…the appellate unit also sat in on big trials. And so being in the appellate unit at that time, and I always liked trial work. I liked the appellate work, I was able to have kind of a hybrid of both trial work and continue to do appeals.

Scott: So yeah, because I remember because I did a pretty big case. I mean, I worked on a big case right out of law school. And I remember that if the major felonies unit was doing some huge case, and this was very smart of the DA’s office at the time. I don’t know, I’ve lost track of how they do things in the last five years or so, and of course the administration’s changed there. But I remember that there was a relationship between the Appellate Division and the major felonies, and they would pull somebody from the Appellate Division over for any big trial.

Anna: Yes. And that’s how I started doing both the trial work in addition to the appellate work. And of course, while I’m sitting there. Well, there’s a witness, I can check that witness or there are the motions, I’m not just gonna sit there, I’ll argue the motions too. And, oh, okay, well, can I open? And can I do this? Can I do that? Especially Fulton County at that time, it was very fast paced, a lot of stuff going on, and somebody who was young and kind of hungry for experience, it wasn’t hard to get it at all.

Scott: Right. Okay. So this is very interesting, because I’ve been pulled into…very rarely. I mean, I wish I did it more. And I wish more lawyers saw the value in it. But I’ve been pulled into trial teams in that role. That was primarily the role in the case that you and I did with one another in DeKalb. I was kind of there helping to shape potential appellate issues that might arise during the course of the trial. And I see what that role is on the criminal defense side, which is you’re trying to preserve error, because in the event of a loss. Being a person that very often will get files or will get retained after a trial, it’s just frustrating to read a transcript and to see error not preserved. And so it’s really wonderful to be in the position where you can sort of help shape the record. But I know that in the event of a loss, we can appeal. Now, on the prosecution side obviously, if there’s a not guilty verdict, you can’t appeal that. So what is the role of someone from appeals being on the trial team, for the prosecution?

Anna: The idea, Scott, is not so different, kind of I guess, the mirror image. My role on the trial teams was…in addition to whatever trial presentation I did, was to make sure that the conviction stood. And that we were just doing the right thing, doing the right thing. And so as an appellate lawyer, like you, I’ve often gotten plasmic. “Why did they find that jury charge? They should have just given it.” Or “Oh, well, they probably asked for too much there.” There’s lots of things as you look at the trial, you’re like, “Oh, if I had been there, oh, I’d have done that differently.” So that was kind of my role.

Scott: So kind of the advice you’re giving to a trial attorney in that setting is, hey, just let him do this, like, this is not gonna make or break us. Just let them get the charge. Or, you know what if he wants to say this, let him say this, if this is the defense he wants to raise, let him raise that defense, because you don’t think it’s gonna matter in the long run, and you’re gonna take the error out. So I’m assuming a lot of the advice you’re giving is, I understand the judge will give you this, the judge will let you do this. Or the judge might exclude this piece of evidence the defense is trying to get into, but just let him do it.

Anna: Sure. I mean, that’s a big part of it. Another big part of it, though, is making the right argument to the judge and making sure the judge’s ruling is kind of appeal proof as well. I want the judge to make the right decision for the right reason and build the right record so that when I stand up in front of the Supreme Court later, I can say, “Well, look, the judge did everything exactly right. And this was the instruction that was given that cured whatever error they’re alleging right now, or this is the 403 analysis, the judge specifically went through and made these specific findings.” That’s the kind of contribution you can make when you’re sitting there at the table, to know that all the hard work that’s going into the trial is gonna get the right result, and then you’re gonna be able to keep it.

Scott: So how long were you involved in it?

Anna: 10 years.

Scott: Okay. And then was that pretty much your role the whole time that you were there, were you primarily assigned to the Appellate Division? Because, like I say, I always think of you as being an appellate lawyer, but I also came to associate you with the big case, like whichever DA’s office you were in. I’ve always associated you with kind of major cases in the metro area, over a certain period of time.

Anna: I’ve been very fortunate Scott, that I’ve kind of been in a right place at the right time kind of situation that I’ve had the opportunity to work on just great, amazing cases with great, amazing lawyers on both sides. When I was in Fulton, I was in the Appellate Division, but I was also the chief of the capital litigation unit. And so I handled all the death penalty cases and would be part of the trial team as well as be the primary appellate attorney on it. And that also just kind of morphed into not just capital cases or death penalty cases but ended up being high profile cases, or we call them high media cases. That was my role in Fulton and then I spent some time in Cobb County. There I was primarily…I was the head of the appellate unit in that District Attorney’s Office. But then when I moved to Cobb County, in I guess 2012, 2013, then my actual title was chief of the complex litigation unit as well as the appellate unit. So you’re right, I mean, I always had an appellate role, but I also had a role in capital cases or more complex litigation that was going on in those DA’s offices.

Scott: Well, and then I can remember on the case that you and I did in DeKalb, what struck me about your litigation style is, so yes, you would come into court very well prepared. And you knew the law, you knew how to present really well in court. But the thing that always struck me just sort of working with you on a case, because I remember that we started working on this case, at the point it reached the motion for new trial stage. I don’t remember you very much from the trial.

Anna: Right. I wasn’t even in the District Attorney’s Office at that time.

Scott: That’s right. Yeah. You were still in Cobb, when this case trialed.

Anna: Right. I just came in for the motion for new trial. You’re right.

Scott: But I remember that there were certain things that we had. I mean, just the logistics of putting on, a lot of people that don’t do, I guess appeals or who maybe don’t do a ton of litigation, or maybe who aren’t lawyers that might listen to this. A lot of people’s view of what lawyers do is just that we’re at each other’s throat constantly. But there’s a lot of orchestration that kind of goes on into sort of getting something set. And it’s almost like a little production in a way. So there’s a little bit that goes into getting things scheduled and getting witnesses coordinating and getting like the motion for new trial. There might be certain pieces of evidence that you want to get in the record that may not be in the record in a particular way. And I just remember, you were very collegial. And you were very professional about just the logistics of cases. And I don’t think that’s always the case with my opponent. But I mean, first of all, I think you’re nice, but I think there was also a strategy involved in that, I got the feeling that you were not gonna get into disputes about things that were unnecessary to dispute. I think there was an element of probably keeping the record as clean as possible that came with that.

Anna: Sure. That’s why, I mean, of course, I would always want to work well with opposing counsel, and you in particular, are quite charming and wonderful. And skilled. I always appreciate very much skilled, competent attorneys on the opposing side because especially when you’re in criminal law, at least on the prosecution side…

Scott: That’s not always the case.

Anna: It’s not always the case. But, as a prosecutor, I always wanted the right result, like, I don’t want somebody to stay convicted if they shouldn’t be convicted. I don’t want someone to lose on appeal because their lawyer didn’t put the right thing in the record. I mean, that’s just not the kind of prosecutor I was, that’s not the kind of prosecutor that I think most people who work in that area are. I mean, I want the right result. So, you’re correct. Of course, there’s a strategy, I think you get more, it’s a more pleasant environment and everybody does better professionally, when you can make small accommodations to each other, and it just works more smoothly. So sure, there’s a strategy to it. But there’s also kind of a philosophy to it, if you want to go back to that, that I want the right result in a case and the right result is something that I feel good about.

Scott: I think you also know that really cases are gonna come down, I mean, on appeal. Generally, I mean, I don’t think there’s any secret to this just having done this for years. Generally, most trial judges get it right. I mean, most, if you look statistically at the reversal rate, for I mean, we can talk about all cases, but particularly if you get into criminal cases, the reversal rate is awfully small.

Anna: Yes, yes.

Scott: And even as someone who, I think I’ve done really well, I lose a lot. So most cases are done well or done right. And generally, I always found that a case is gonna boil down to overwhelmingly one thing. I mean, generally cases that are reversed on appeal, they’re gonna come down to one thing, I don’t care if the trial was six months long, they’re generally gonna come down to one, maybe two things. And so I think you always sort of got that, that you knew that we’d probably…generally, that it’s gonna come down to this one or two things and having collateral fights about issue 27 probably doesn’t do any of us any good.

Anna: Yeah, I think that’s exactly right. I mean, like probably you’ve been doing this a long time, Scott and very good at what you do. When you look at a file, you can, I’m sure identify right away the issue that you’re gonna be arguing.

Scott: Focused on.

Anna: Yeah, exactly. You can see the issue that is gonna be a winner for you if anything is, same way that when I look at a case file before the trial, I can see the closing argument as I read the file. When I look at a case that’s been tried and I’m bringing the transcript in preparation for doing the appeal, I can see the argument, I know what I’m gonna be asked questions about. And I know what I’m gonna have to defend, and I’m trying to form everything from there around those points.

Scott: You can sort of envision the brief of appellant or you can envision what the motion for new trial hearings gonna be about before it’s even drafted. probably.

Anna: Right. And to go back, I mean, that’s, I think the value of having an appellate attorney at the trial table because I’m thinking, as an arguments being made, or as a judge is making a ruling, or I’m deciding whether to object, I’m like, “All right, well, how am I gonna defend that later? Am I gonna feel good standing up saying, ‘Well, this is what I did, and this is why and here’s what the record is, and I’m telling you why it’s not error.’?” Lots of times, I’m actually saying out loud, “Well, I can’t defend that later. Don’t do that.” Or “Let’s do it this way. This is how I want to argue the appeal, a year and a half down the line.”

Scott: Yeah. Do you really need to exclude this argument, to give them something to fight about on appeal? Or is the argument kind of patently ridiculous? And maybe they’re gonna be worse off if they’re allowed to make it. So I’ll just go ahead and let you say this and go ahead and let you do this jury instruction. And I’m just gonna give you a hard time about it in my closing.

Anna: Exactly. Yes, I would much rather let you get in this witness that you disclosed late and isn’t gonna be impactful in the big scheme of things anyway. I’d much rather do that then have to justify later why the defense alibi witness was excluded.

Scott: So when you were gonna do one, when you were gonna try a case, what kind of was your method to prepare a case for trial? That’s kind of a big question I know. But you said a second ago like you, it sounds like you would start with the closing in mind.

Anna: Yes, I definitely read a file for the first time and I know that I know the case well, when I can picture the closing and I can picture how I’m gonna put up this witness and how the direct is gonna go. And all right, if I’m the defense, and I’m gonna do this, and so what am I gonna do to shut that door? Like, I read the case file, I think most trial attorneys get to a point where you read the case file, or you build the case file with an idea of how you want to close the case.

Scott: And so would you look at jury charges first? I know a lot of people say that when they open the file, they start thinking about jury, they pull the jury charges together right away. What would be your method there?

Anna: I don’t think jury charges, I think, “How am I gonna persuade a jury that this is true, how am I gonna argue it to a jury? How am I gonna get the person on the back row to understand this element, this element, this element?” If it’s a very complex case, there’s a lot of expert testimony or I think I’m gonna need expert testimony, I don’t start thinking about my expert, yet I start thinking about how I want to explain this complicated technical issue in closing or in opening, so that the jury understands it and I kind of build my case around that.

Scott: I see. So you really think about the book ends of the trial, you think about how you’re gonna introduce a topic in opening and you think about how you’re gonna argue it in closing. And then that’s sort of your outline, and you sort of fill it in from there with your witnesses.

Anna: Right. And of course, it changes, I talk to witnesses, and a fact I thought was true is not true. So I’m like, “All right, well, let’s try that.” But I mean, as you know, as a writer, it’s much easier to have a draft and edit it than it is to start fresh every time. So I consider my draft of the closing exactly that, a draft of the trial. And I gotta edit and I gotta move things around. And I gotta edit and I gotta get the right people in the right spots at the right time. But I think about…but that’s kind of how I plan the trial in my head. And I’m also very aware all the time when it gets closer to trial and when we’re actually in trial, the pacing of it, I think is something that most lawyers overlook.

Scott: What do you mean by the pacing of the trial?

Anna: I think, I mean, as a prosecutor, and now I do primarily plaintiffs work, I think of, it’s all part of persuading the jury. So as somebody with the burden, as a prosecutor or a plaintiff has, I try to think about convincing the jury and keeping the pace of the trial going so that the jury is engaged. They’re with me, they’re following what I’m doing. We have a connection and I’m with them as we’re explaining the facts of the case and the law at the end. And I just think the pacing of the momentum of the trial is very important and I think probably overlooked.

Scott: Okay, so this is kind of interesting to me. So I know that there are certain types of cases where that’s a challenge. I mean, if you’re talking about five kilos of cocaine in the trunk of a car, and it’s gonna be like a two-day thing… Well, I mean, even that you have some problems, because there’s gonna be that set of testimony where you’re talking about potentially chain of custody, but probably not so much. But you’re talking about the weight of the drugs, you’re talking about how…what they did at the crime lab to determine that it was, in fact, cocaine. And in a murder trial, it seems like in a murder trial, there are those set of witnesses that you’re trying to prove chain of custody, among a set of things that were found at a scene or, you’re gonna put the medical examiner up. But I would think maybe even in particular, in a white-collar type of a case, where you’re just tendering bank records, or…I don’t know. I mean, I think all big cases have this set of witnesses that are absolutely necessary to make out your case, but are kind of probably hard to pace, like cell phone tower records, text messages, and proving those up. So there’s those types of witnesses that don’t lend themselves to being interesting. How did you pace that type of evidence back when you were a prosecutor?

Anna: So you’re exactly right. Like, that’s the kind of testimony that if you’re not tending to it, that’s the afternoon that the jury sleeps, they just miss it. So as a prosecutor, as any attorney, that’s when the jury needs you, like, that’s when they need you to make it accessible.

Scott: When you’re opening up 75 paper bags and pulling things out and tendering them.

Anna: Yes, yes, yes. Yes, yes. So you can do it with a…as you know, lots of witnesses are not naturally great public speakers, so things can get monotonous and kind of dry. So it’s, I think, the attorneys job to not make a production out of it not to be overly dramatic, but to keep the jury engaged. So if that means making a graphic and making eye contact with the jury, and make sure that you stop your witness every couple of however, many times you need to stop the narrative of the witness to make sure that…

Scott: Like, “You just said this word and tell me a little bit about what this means.” That kind of thing.

Anna: Exactly. It’s like, “Okay, wait, you said that, and I’m not sure. Can you explain to the jury what you mean by that?” Or if you’re going through phone records, like you said, it’s very, very hard for people to keep anything detailed, like the times, dates, locations, things like that, it’s hard for them to keep it in their mind. So of course, you should have a graphic, and maybe it’s a graphic that’s very professionally done. And it looks, you know, you already have all the information that the witness is gonna testify to and you want the jury to understand, maybe you’ve already got it on this board or presentation that you’re letting the jury look at. Lots of times what I’ll do just to keep things in the courtroom moving, to keep the jury interested is I’ll just have a blank large pad on an easel. And I’ll write what the witness is saying if I think the jury needs to get more engaged. Jurors pay attention to what they see. And jurors pay attention to something novel or new, especially in a long trial, like you were talking about. So, when I talk about momentum, I’m thinking, all right, well, don’t put your cell phone person if they’re boring right next to another witness who is gonna be really boring. Move as you can to keep the jury engaged and paced and if you have the burden of proof, then that’s always gonna be your friend.

Scott: And you said that a lot of lawyers sort of don’t think about pace and momentum. And I think I know what you mean, but sort of talk about where you see lawyers going wrong if they’re not thinking about pace and momentum. Like what do you see happening from time to time?

Anna: Well, first I’d rely on my own mistakes that I’ve made not so much that I’ve seen other people do. But, when I look back and think about what I haven’t done correctly, or what I would do differently, especially like on cross examination. Again, I’ve got the burden, and I’m moving through my witnesses, then when the defense puts their case up, I am often in a position where I’m thinking a short cross is best. You know, what I mean? I often think that defense attorneys make mistakes with my witnesses on cross by trying to drag it out, by trying to do too much with the cross and losing the power of any point that they have. When I talk about momentum, I’m thinking, well, if you put up an expert, a defense expert that’s up on the stand for eight hours, a whole trial day, and I can see the jury’s long gone, they’re long gone. The last thing I’m gonna do is cross that same witness for four hours.

Scott: Because no matter how bored they are, or how long or monotonous that direct was, when you stand up to do your cross, you’re gonna have their attention for at least a minute or two because the gears are changing, and they want to see what you’re about to do. So you actually put a spotlight on that witness, and you make that witness interesting, just by standing up and starting to question. And you don’t want to drive that back to the defense.

Anna: No, no, I don’t. I want to make my points, I want to make them crispy. I will probably talk louder than the defense attorney did, or the witness did. I will probably move around the courtroom. I will ask questions in a way that advances my case. But if I talk more than 45 minutes, even on a complicated expert cross, I wish I hadn’t.

Scott: Right. I always work on cross, and I try to keep crosses short, even from the defense perspective. I try to stand up and there’s one or two things I want. And if I can get that in one question, if I can get that in five questions… If I think that that point is implicit already from the direct, and I’m not that damaged by the witness, I may not ask anything.

Anna: Sure. If it doesn’t get you anywhere, why would you?

Scott: Right. And sometimes we feel like, or collectively, lawyers, we feel like we have to say something like, I’m here, particularly if you have a client with you. Your client, particularly from the defense side, they’ve watched so much TV, they think that your role is you just need to make every witness look foolish. And you’re never gonna make a witness look foolish. I mean, you might. I mean, you might once or twice every five years, but you’re generally not. And generally, the witness is… There are a lot of witnesses in the course of a trial who are just there because they work for the cell phone company. Or they’re there because they saw something and they’re not bad people, and they’re not there with any kind of agenda. So, it just is dumb to try to make witnesses look foolish. Because I feel like the jury sympathy is never with the lawyers. I feel like the jury identifies with the witness. Yeah. And if you can get in and out in five minutes, you probably should.

Anna: I think you probably should. I think you rarely help your case by just asking questions that the jury doesn’t care about the answers to.

Scott: Right, right. So you were in Fulton, and then you were, I think in Cobb for a period of time, and then you were in DeKalb. And so when did you make the move to private practice?

Anna: I left prosecution in 2018 to go with my firm, couldn’t be happier with it. It’s a great firm, the Summerville firm. And I’ve been there for the last couple of years.

Scott: Well, what was the transition to private practice like? And, well, first of all, I mean, you made two big transitions. One is you went from criminal to civil. And then you went from government work for so much of your career into private practice. So what were those two transitions like?

Anna: It was challenging. Definitely the subject matter change was huge for me. The Summerville firm, my partner Darren Summerville and Max Thelen and Meredith Kincaid, all great lawyers. And what we do is, the work is very much like the work that I did in prosecution. I mean, we are an appellate firm that does a lot of trial work. So it’s that same hybrid of trial and appeals. And that’s what made me comfortable that I could switch because in the end, it’s a new subject matter. But litigation is litigation and appellate work is appellate work and trying cases anywhere is similar to trying cases criminally.

Scott: Is doing personal injury, in terms of how you try the case, or, how analogous is it to prosecuting? I mean, I know the whole discovery part is completely more complicated in its own little drama. But when you get in and you’re picking a jury, and you’re going to opening and you’re putting up witnesses, and you’re closing, how analogous is that to being a prosecutor?

Anna: For me, it’s very close. Because if I’ve got someone… I’ve almost always got somebody who was really horribly injured, or in some way, victim like, and so I feel the same way about the case. I always want justice, I want the right thing, I want my client to feel compensated at the end or, like there was some justice reached. And so for me, putting the case together from the plaintiffs side is very similar to putting together a criminal case from the prosecution side.

Scott: I see. So what about the discovery? What kind of adjustment was it? Because I’m moving to personal injury myself, I’m doing more and more of that. And there’s something wonderful about discovery takes place when I get a jump drive or a disk or an email or, or even a big fat envelope filled with paper and I open my envelope, or I put that disk in or I plug that hard drive into my computer, I’m dating myself saying, a disk. I plug that hard drive in, and I open up the file. And okay, discovery is now complete, like when it’s usually that single moment of delivery of a thing. That’s actually served me quite well. And having done this for years and years, both trials and appeals, I feel like I could, if you handed me a garden variety criminal case, I could probably study the file today and open tomorrow. And just like with you, you’ve had witnesses no show on you or someone’s flight is delayed. And suddenly you have someone that you thought you were gonna put up at 9:00 isn’t gonna be here until 1:30. and you have to sort of, in 10 minutes, organize a set of witnesses. Because at 9:00 your judge is gonna say, “Ms. Cross, call your next witness,” and you’ve got to have somebody there. So you’ve learned to make those adjustments on the fly. How’s the whole discovery component of civil work, compared to what you used to do, and how have you adjusted to it?

Anna: I’m gonna be absolutely surprised if you’ve ever had anybody on your show or talked to anybody who’s gonna say like discovery’s their favorite part of litigating. And I’m completely suspect of that person, if you find them. The discovery part, of course, is not my favorite. I don’t think it’s anybody’s favorite. In prosecution, it was actually quite easy because you just give them everything. If I’ve got it, you can have it.

Scott: In fact, here’s my file, if you want to come by this afternoon.

Anna: “Come look at it, I’m gonna pull out my notes but otherwise, you take what you want, and we’ll copy everything for you. And if you have a hard time getting something yourself, and it would help to have a state subpoena, then let me know, I’ll get it.” So that was kind of my attitude in prosecution, again, with the eye towards, “Well, I don’t want to be explaining later, while I didn’t give them something.” Better for the case.

Scott: There’s no Brady v. Maryland in civil.

Anna: No, there’s not. But at the same time, it’s challenging a different way, because you have to ask for the right things, you’ve got to follow up. The most interesting part to me is how different people who have litigated only on the civil side, and coming from prosecution, criminal law. I find now a lot fewer people are…not very many attorneys will actually talk to the witnesses before there’s a deposition, for example, or before they even put together their case. There’s an assumption of what witnesses might say, but few people actually talk to them. In putting up for example, like a case based on a car accident, a lot of attorneys will file the case having only talked to their client, not to any of the witnesses that are listed in the police report or anything else. And so it’s always a bit of a surprise when things don’t track exactly as perhaps your clients version of events would have led you to believe. So that part I bring with me from doing criminal work for a long time. I always like a live witness, instead of reading deposition excerpts. I always talk to my witnesses beforehand. I craft my trial plan my order proof, having talked to the witnesses and knowing their personalities and thinking of how they will present to the jury and again, how I want to pace my case. So, discovery I undertake too, just with an eye towards, “How will I try it when the time comes?”

Scott: Okay, and I know that we’ve talked about this before. I mean, not on the podcast but we’ve talked about it in another conversation, but your notion of pace and momentum, and your notion of get what you want from the witness and you don’t need to drag it out. And this sort of less is more sort of approach. Is that an approach you also take to discovery, like if you’re deposing a witness, is that kind of what you do? And do you see your approach as common with how a lot of lawyers do discovery?

Anna: I think I do it differently. And I’m not saying it’s better or worse, and I have much to learn, I’m sure. But again, if I’m deposing somebody, and particularly if it’s my witness, I’m defending the deposition, or it’s somebody who is non-hostile to me, then I’ve already talked to that person several times. So I don’t need to ask questions in the deposition for discovery purposes. I know what the witness is going to say because I’ve asked them, I’ve already talked to them. So I’m not one who will stay with a witness for eight hours just because I can. We all hate those people. But I don’t do that. But at the same time, even my witness, I will with an eye towards maybe a summary judgment motion or a Daubert motion if it’s an expert, or substantive motions down the litigation line, I will get what I need from that witness in a very succinct, very quotable kind of way so that I’m preparing not just for the discovery process and for the trial, but also for the motions that I’m gonna have. So if it’s a witness who saw a trucking accident, for example, I’m gonna ask that person to summarize for me in their own words, what they saw. And then that’s something I can cut and paste later into a motion if there’s any question, like summary judgment motion. Have I met all the elements? Well, yes. Here’s this witness explaining to me exactly what happened.

Scott: And that seems like that’s a skill that you took with you from being a prosecutor, or from doing appeals as a prosecutor. You’re thinking about how is this gonna look on paper? Or is this something I can just cut right out of the deposition and just Ctrl V and paste right into my motion or right into my summary judgment response?

Anna: Exactly, exactly. It’s just, it’s quick, it’s efficient, it’s easy. And it’s better for the judge who’s gonna be reviewing, making a decision and ruling based on your pleadings, that it’s succinct, it’s concise, it’s easy and accessible. When you’re talking about trial work, I want everything to be easy and accessible for the jury. If you’re talking about motion work, I want it to be easy and accessible for the judge.

Scott: Okay, but it sounds like what you said a moment ago is you guys are an appellate firm. So you’re an appellate lawyer. And it sounds like you’re doing the civil component of what you used to do as a prosecutor, which is, you’re primarily an appellate lawyer, but you do trial work, too. Are you embedding in the trial teams in the same way that you would do way back in Fulton? Are you doing some of that as well?

Anna: Yes, yes. And what we’ll do now is my firm, the center of our firm is very much like the appellate unit in the Fulton County District Attorney’s Office. If it’s a big case, we’ll have a co-counsel bring us in to do the motions work. Yeah, I like to try cases a lot. And my partner Darren Summerville is a great trial lawyer as well as a great appellate lawyer, he tries cases a lot. So we’ll get called in on a case where co-counsel just kind of maybe needs some legal writing expertise, which not a lot of attorneys love doing the writing part, but we do and enjoy it. But we do the kind of dispositive writing, summary judgments, Dauberts, motions to dismiss. And then in many cases, we’ll stay with the case to try it for all the reasons that we talked about before. Because if there’s gonna be an appeal, you want to make sure that the verdict stays, there’s nothing worse than going through the effort in a civil case of discovery and trial and then getting it reversed on appeal or significantly reduced on appeal. That’s just bad for the client. It’s bad for everybody. Nobody wants that. So that’s kind of our role in the civil work.

Scott: I see. And what is the appeal side, like over in civil versus what you used to do?

Anna: As you pointed out earlier, in criminal work, and prosecution, I didn’t lose all that often. That, it’s a different ballgame. And it could kind of go either way, in a lot of cases. And so you’ve been doing this a long time. So maybe you have a different opinion. But I don’t even know if I should say this, you might have to edit this out later. But I found doing criminal work. There’re great attorneys, phenomenal attorneys. And you can tell a case that’s put up or defended by someone who’s very skilled and very good. But at the same time, I can think of a handful of cases that are kind of won or lost on this skill and ability of the attorney. Generally, juries want to do the right thing and the facts win out. That’s been my experience, you might have a different experience. But I think that’s probably true. The skill of the attorney rarely sways the outcome of a case criminally. I don’t think that’s true on the civil side.

Scott: Okay, how’s that different?

Anna: I think that there’s a lot of institutional protection in criminal. I mean, you’re talking about sending people to prison or people who’ve been grievously injured or hurt or victimized in some way. So there’s a lot of institutional protection for the result on the criminal side. There’s some but I don’t see as much on the civil side.

Scott: In other words, there’s no vested interest in one side or another winning or losing when you’re fighting about money.

Anna: Generally not. There’s no clear “he did it or he didn’t do it” kind of dichotomy that is readily apparent, at least to most things. Most times you have somebody who was really hurt medical malpractice or some other cause of action and whether someone was responsible for that or liable for that isn’t always clear. All of that is to say that I think a good skilled litigator on the civil side is potentially very impactful on the outcome of the case.

Scott: Right. Because it seems like the skill maybe tends to matter more on both sides.

Anna: Yeah. I think so.

Scott: So what are you up to these days? I mean, you don’t have to talk about specific cases. But what…I mean, you’ve come out of pandemic, or I suppose we’re still kind of in it. What are your days like these days, what are you up to?

Anna: Well, like everybody else, I’m itching to get back in court. I’d really like to try a case. I haven’t tried a case in the last year and a half or so. So other people might be getting those calendar notices, or especially set trial dates with dread, but I’m looking for my calendar to fill up. I’d really like to try some cases, get some cases moving and just be back in the courtroom again. I miss it.

Scott: Oh, that would be great. Well, I think we’re there. Well, listen, thanks for spending an hour talking to me about what you’re up to. And this has been really good.

Anna: Scott, it’s been great. And I always enjoy talking to you.

Scott: Oh, well thanks so much. Same over here. And take care and if I can ever help you, let me know.

Anna: Well, same, I really appreciate you having me on. Thank you.

Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com and please rate, review and subscribe to this show wherever you get your audio content.

Episode Synopsis: After decades of practicing law, nationally-recognized criminal defense lawyer Doug Peters understands the heavy responsibility of advocating for those most in need. Peters shares what led him to start his own defense practice, why he used a proactive people-centered approach for preparing for trial and the best time to put your client on the stand.

Podcast Transcript: The following is a transcript of Episode 8 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Doug: I’ve always felt, I don’t…a pull to try to stand with the downtrodden, you know, with the small man against the state. There’s something that is so honorable to me in being the person that stands between the citizen and the state, and that’s what I really wanted to do.

Scott: That was Doug Peters talking about what inspired him to become a criminal defense attorney and what inspires him to this day. It was an honor and a pleasure to speak to Doug for about an hour. Doug talked about what inspired him to become a criminal defense attorney, his early years as a prosecutor, and the things that motivate him and keep him going to this day.

You’ll find Doug to be an inspiration as you listen to him. But beyond that, you’re going to find some excellent practice advice and tips for being a better, more effective trial lawyer.

You’re listening to the “The Advocate’s Key” podcast. For more podcast information and more information about my practice, or just to contact me, feel free to check us out at scottkeylaw.com or give us a call at (678) 610-6624. If you like our podcast, make sure to like or comment wherever you find your podcasts.

Doug Peters, it’s so good to have you on the podcast, it’s a real honor. How are you these days?

Doug: Well, Scott, I’m just really good and I’m very honored that you have invited me, I’m looking forward to speaking with you.

Scott: Me too. I mean I think probably when I decided to create this podcast, you were who I was thinking of, is just going to be my definitive guess. I can probably just hang it up after this.

Doug: Well, you’re very kind to say that.

Scott: So, I always ask guests who come on the podcast, because I think people do a really good job of introducing themselves, and although this comes off sounding like a theological metaphysical philosophical question, but who is Doug Peters?

Doug: Well, Doug Peters is a very fortunate, very fulfilled, and very thankful person. I have an incredible family, I have had tremendous years of doing what I love practicing law, I have been able to balance that with other things in life that I’m quite passionate about. And so I consider myself fortunate and thankful.

Scott: And what have you done for a living all these many years?

Doug: I have been a criminal defense lawyer.

Scott: And how long? I don’t want to date you hear, but how long have you been a criminal defense attorney?

Doug: I passed the bar in 1974, in June. And I sat at a counsel table and I tried my very first murder case about five weeks later. Started then, and I am continuing to do it now.

Scott: And what made you decide to go to law school? Was that something that you thought you were going to do when you were growing up or is that something maybe later in high school or college, that you decided that you would go to law school?

Doug: Yeah. I did not grow up dreaming of being any kind of lawyer. As a kid, I was more interested in sports and having fun. I was always a pretty committed student in grammar school and high school. Not that I was top of the class, but I was very committed to sports. And the thought of law school was just never anything on my plate until I was finishing my sophomore year in undergraduate school and it was time to declare a major.

And what I had enjoyed mostly during my first two years in undergraduate school was English. I love poetry, I love creative writing. That’s what I made my best grades in and I thought, “Well, I’ll stand the best chance of graduating if I major in English.” My thought process at that time was tempered by my father’s sense of common sense, he said, “Well, now, if you major in English, what will you do when you graduate?” And many people that do that go into teaching. And at that time, I could not imagine myself being a teacher or a professor. Now, I feel very differently about that now.

During that, sort of that process of trying to decide, someone said, “You know, English is a very good undergraduate major to go into law school with.” And I thought, “Well, maybe that would be the way to go.” And that’s really, Scott, what sort of lead me, ultimately, to applying to law school.

Scott: It was something that you could do with an English degree, and he went into English knowing that that was something that you enjoyed and you excelled at.

Doug: That’s correct.

Scott: And you mention sports, what…how into sports were you and what sports did you do when you were in high school and in college?

Doug: Well, I was in gymnastics. I was not recruited out of high school, but I walked on at the University of Georgia. Back in the early ’70s, the University of Georgia had a tremendous men’s gymnastics program. That has totally reversed now, their women’s team for the last number of years has been rated nationally. But I walked on as a freshman and I was able to make the team. And so I earned a scholarship, and so that paid for my undergraduate school.

And so during my four years from 1967 through ’71 I was a very, very committed gymnast. And so that was my passion.

Scott: What kind of discipline did take to be a college gymnast back in the day and what was…what would have been…I guess in the height of things, what would have been your daily routine back then?

Doug: Yeah. It took the same discipline that it takes to do your best practicing law, I believe. Which it requires structure, it requires goal-setting, and it requires a determination to try to be the best that you can be.

And so my routine then was to take all of my classes early in the morning, finish them by midday. After lunch, I would rest, and then I would go to the gym about mid-afternoon and would work out every single day until about 6:00, 6:30, then back home for homework for the next. And that was my general routine for those four years, which I actually continued that routine in law school. When I finished my classes every day, I still returned to the gym with the team, even though I was not competing because my eligibility had expired. But I’ve always enjoyed that outlet, and so that was my routine.

Scott: And then you would study in the evenings, wake up and repeat.

Doug: That’s correct.

Scott: But I know now, just from having…because you and I have worked together on several cases and we’ve talked for years and years, I know now that you are a very early riser and you tend to do your exercise early in the morning these days.

Doug: That’s correct, I do.

Scott: In addition to gymnastics, were there any other sports you played or did when you were in college?

Doug: Yes. I was also, in high school, I was a very committed swimmer and a diver, was sort of a natural, I think, evolution from gymnastics.

And so I had a very interesting year my junior year in undergraduate school. Back then on the swim team at the University of Georgia they had two swimmers. One of those, my junior year, went on academic probation. And so they came to our gymnastics team asking if anyone could fill that spot and I was the best we had.

So actually my junior year I was on the swim team, also, at the University of Georgia. I was not the best that they had, but I did compete, I did letter. And so I’ve always been quite proud of that. So that was another sport that I pursued in undergraduate school.

Scott: And then when you ended up in law school, was your thought that you were going to be a trial lawyer, did you think that you would go be in a big firm? What… Other than it was something that you could do with the English degree and it was something practical that you could make a living with, having had that as a major. Going into law school, did you envision any particular thing?

Doug: To be totally honest, my first half of law school I worked very hard, but I did not know that I had really made the right decision. I found myself surrounded by many people in my class that had business backgrounds, business law just totally bored me beyond tears. And there was very little that I saw in my beginning of law school that really made me very passionate about it. So, it never entered my mind to be a trial lawyer or anything of that nature.

For me, the turning point was midway through my second year in law school. They had a moot court competition, I had never done anything like that. They gave us a hypothetical state of facts, we were to prepare it and to argue it before upperclassman as our sitting judges.

And so the case they gave me was Sniadach Versus Family Finance. It was about a car being repossessed, I’ll never forget it. But I started preparing that, and we only had a little 20-minute argument. I only argued for 10 minutes, and then my teammate on my side argued 10 minutes. And I still remember, Scott, that night when I got through I remember calling my father, whom for the first year and a half of law school I had just been in the misery when I spoke with him, thinking that I’d made a mistake. I remembered calling him that night and said, “Dad, I think I found what I want to do.” And I found that in the oral presentation I really felt like I could hold my own with the very top people in our class. And that really created a passion in me that made me feel like, “Maybe I could actually go to court and stand up and try cases.” And that was a big, big turning point for me.

Scott: And so moot court, that would have been more of like an appellate setting.

Doug: That’s correct.

Scott: So, were you thinking that you wanted to be an appellate lawyer or it was just the proximity to “this is kind of like court”? Did it just light you up to, “Whatever it is, I want to do more things like this”?

Doug: Yeah. You know, what excited me about it, Scott, was for the first year, year and a half in law school the only time I could orally speak was when I was called on in class. Which, to be honest…

Scott: Is never fun.

Doug: For me it was terrifying. However, putting together the structure of the argument… And yes, it was an appellate argument that I made. But putting together the structure of that argument, and taking the facts and structuring how is it that I can convince someone that I can win this, I think that’s what really drove me. It was the creation of the presentation.

And so I felt…I didn’t feel that that was so different because it was an appellate argument, it seemed like that basic process would be something that I could do in court. So that was what really appealed to me.

Scott: And this happened in your second year of law school?

Doug: That’s correct, just about halfway through my second year.

Scott: And so what changed you in law school? Because I know you felt maybe you didn’t belong there. What did you start to do differently on a day-to-day basis as a result of that decision, or that experience?

Doug: Right. Well, I think the simple thing is I started to have confidence in myself. In the beginning, we had a very, very talented class and I never felt, you know, that I was out front with the courses that we were taking, you know, like contracts and torts and property law. But just about the time that the moot court began, I started a class in criminal procedure, I had another class in evidence, and I had a very fine professor. And, you know, I just felt, with that medium, that it was something that I could grasp. It was not business-related, it seemed like it was people-related. And those were things that really drew me in.

And so at that point I started speaking with people and I was told that if you wanted to go to court, then a great place to start would be as a prosecuting attorney. And I thought, “Wow, would that be something, if I could be, you know, a prosecuting attorney.”

So that was a big turning point for me, that I felt that I had a goal to work for, “If I could find a way to pass the bar exam, well, maybe I could do that.”

Scott: And so what happened? Did you work in the summers in a DA’s office or a law firm? What were you doing, other than your class and sort of the sense of confidence you had, what were you doing to sort of cultivate that?

Doug: Oh, no, Scott. I didn’t have near that amount of drive, to be honest with you. After one year in law school, I bought a motorcycle and I drove across the United States. I had been very influenced by the movie “Easy Rider.” So, I put on my first pair of bell-bottoms, I bought a Honda 450, and I rode from here to Key West, out West, I went to Mexico, went to California. And I saw the Pacific Ocean for the first time from sitting on my motorcycle, I ate my first taco and had a Coors beer. And that’s what I did one summer.

The other summer I left and I went to Europe. And I took the four months, from the time I got out until we started back in late September. I had a backpack and I had a second-class train pass, a student rail pass. And I backpacked all over Europe that summer. Now, most of my classmates were vying for jobs in big law firms and internships, but I just wasn’t ready for that, I just had too much adventure in me than. So that’s what I did.

Scott: Were your summers back as an undergrad where you spent sort of training and doing athletic things back in the summer and this was your chance to kind of be out there and see the world before you started your career?

Doug: That’s correct, that’s correct. I was in training, you know, year-round in undergraduate school, that’s correct.

Scott: Okay, so you get out of law school or, you know, you’re studying for the bar, did you have a job lined up while you were studying for the bar or were you still kind of in the process of looking?

Doug: Right. It was very interesting. The year that I graduated, 1974, for a while the Georgia bar had a rule that if you had attended the University of Georgia, Emory, or Mercer, if you were a third-year student and were scheduled to graduate in June, you could actually take the bar before you graduated. That way that downtime where you were waiting to see if you passed the bar not could be done while you were in law school. So that if you graduated, then you knew your bar results and you could start work.

So that’s what I did. I took the bar early that year in February, I passed it. And so I started looking for openings in a district attorney’s office. I found that there was one down in South Atlanta in Clayton County. And so I went and I interviewed down there to see if I could get that position.

Scott: And, of course, you got it?

Doug: I did, that’s correct.

Scott: So, talk about what it was like being a prosecutor as your first job out.

Doug: Well, Scott, I just loved it. I mean I remember being in court, coming home at night and I would just…I would lie there in bed, I would just buzz. I mean I was so excited to think that I could put on a suit, go to court, stand up as a lawyer. And I felt that I was able to use my…you know, my creativity in how I put my cases together, I felt like I could use my skills in speaking with people in the presence of the jury. And it just…I just absolutely loved it. I loved the people that I worked with, I had great mentors in the office, you know, that gave me a lot of latitude.

And, oh my goodness, during those years, two weeks out of every month were trial weeks. And I literally would have a stack of files to be ready to try, I never knew which one was going to go to trial. So, I was averaging, you know, each month I would have at least two jury trials, and sometimes I would have three. So, I absolutely loved prosecuting cases.

Scott: Was it just the trial experience or was it managing a caseload? What was your favorite part about being a prosecutor?

Doug: My favorite part was looking at the case on paper and realizing what it was that I needed to convince an individual on the jury, and then sort of constructing how I would go about doing that. I loved preparing opening statements, I loved preparing closing arguments. And I was trying to do a lot of things then just be instinct that, you know, in later years I learned I was really…you know, I was on the right track with a lot of the approaches that I took. Not that I had been trained, but it was just a way of speaking with people. And I really enjoyed that.

I enjoyed working with the defense lawyers. I just…I always admired them, I always looked up to them. So, it was a…it’s a very people-oriented process you go through every day as an assistant DA. I loved working with the judges. It was very fulfilling for me, it really was.

Scott: How long did you ultimately end up being a prosecutor?

Doug: Just a little less than two years. I realized that, as much as I thoroughly enjoyed being in the courtroom, there were two things for me that I felt were missing. Number one, I always wanted to work for myself. I did not want to work for anyone. I wouldn’t…I was never interested in working for a big firm. And I was never interested in, you know, working for the state of Georgia or anyone on a long-term basis. I always wanted to have my own business. So that was nothing related to law, that was just, you know, what I felt.

The other thing that is at the core of criminal defense is I’ve always felt, I don’t…a pull to try to stand with the downtrodden, you know, with the small man against the state. There’s something that is so honorable to me in being the person that stands between the citizen and the state, and that’s what I really wanted to do.

So, a little bit less than 24 months as a prosecutor, I left and I hung the shingle up. That would have been in 1976, in the spring. And now it’s 2021, Scott, and I’m still under that shingle.

Scott: What kind of things did you do when you first got out and you first started your business and hung out your shingle?

Doug: Well, for the first week I sat at my desk waiting on the phone to ring. It never did. I’ll never forget, it was Friday afternoon and finally our office administrator buzzed me on the intercom and said, “Doug, you have a phone call.” Well, I just about fell out of my chair answering the phone, so excited. And it was my mother and just asking how I was doing.

So, I started with nothing, Scott. And so in those first years I did a little of everything that I could just to, you know, try to pay the utility bills. I wrote wills, I did real estate closings, I handled bankruptcies, divorce cases. Of course, I was trying to develop my criminal defense practice.

And so I found out that down in Fulton County then that if you arrived at the old Fulton County Jail on Jefferson Street on Monday mornings and if you got there by 7:00 a.m., there were two things waiting. First, they would give you a free breakfast in the dining hall with the deputies. And number two, they would give you an appointed case of those people that were arrested over the weekend, they were all misdemeanor offenses.

So, for the first two or three years, every Monday morning at 7:00 I was at the Fulton County Jail to take those cases, and I started trying those cases. They paid $50 a case, and I tried a lot of those. And I ate a lot of really good breakfasts, they had wonderful biscuits down there. I just really…I just enjoyed every part of it. So that’s what I started doing.

Scott: What would you say…and you don’t have to use any names or anything, but…unless you want to or you feel like you can, but what do you think was your first big break, your first big criminal defense…and it might be a case or it might be a person you connected with, when did you think that you went from doing the appointed work, and I had my own version of that when I was starting out in Henry County, but what do you think was your first big break as a criminal defense attorney?

Doug: Right. It was a big break for me. One of the other assistant DAs down in Clayton County that had gone out into private practice had a case that he called me and asked if I would be willing to meet with the clients on the case. He was concerned about being able to handle it adequately himself. And I think he gave me that opportunity because we had worked shoulder to shoulder in the DA’s office and I felt that he knew how hard I tried and how much it meant to me. And so that gave me an opportunity.

And I met with that family. I’ll not name names, but my client was a Delta pilot. And he was accused in a child abuse case. And so I worked it very, very hard and was ready to try the case. At the very last minute, literally, we had picked the jury, the DA came in and offered to reduce the case really to a misdemeanor and with a minimal fine if my client would enter a plea to that, which I thought would have been a huge victory. And, of course, I shared that with my client and he told me he would not take that. He said he was innocent. And I said, “This judge, if you’re convicted, will sentence you to many years in prison.” He said, “I’m innocent, I want to go to trial.” And so the pressure that I felt there was enormous. And so we tried the case for a week, and thank goodness we were successful.

So that was…I think that was one of my first opportunities really to come in, and that case then started leading to others. You know, when people hear that you’ve won a difficult case, they think, well, you know, there’s probably some special talent you have on that kind of case. And which really was not the case, I just worked it hard. And, but that led to other cases coming to me. So that was a…I had many turning points and great, you know, moments, but, you know, I think that was one of the very first ones, as you’ve asked for.

Scott: Well, now, what does it mean to work a case hard? Because you say that it’s not any particular talent, but it’s just working it hard. What do you think distinguishes hard work in a case versus pretty good work or good work or…I won’t even say mediocre work? But what do you think the difference is, what do you think it is that you did or you learned to do in that case, or other cases, that maybe distinguishes your work level from maybe folks that don’t work quite as hard?

Doug: Right. I’ve always felt, Scott, that to be a criminal defense lawyer and to have a citizen come to you, they literally put their life in your hands. They literally put their life in your hands. And so I have always felt, given that fact, I never wanted to handle a case where I look back over my shoulder and said, “Wow. Well, I wish I had done that. Or maybe if I had thought of that, or if I had prepared a little better.” I never wanted to reach a point where I look back over my shoulder and thought I could have done better, honestly.

And so that philosophy means then that if you take the case, you try to do the daylights out of it. And it means that you form a team. It means that you work with your client. Not for your client, but you work with your client. It means that you listen to them. It means that you have them share the responsibility for the work and preparation, of course at your direction.

And it’s just an overall commitment. It’s like sitting down in the beginning with a legal pad and, like, making a grocery list to go to the grocery store, to sit down and list out every single thing you can think of in the case that would make a difference. From investigation, to legal research, to the type of jury you’re looking for, the storytelling that you hope to bring it all together before the jury. And then you sit with that to-do list and I treat it like the team, that I’m the coach, and I make assignments to my investigators, to my clients, to their families.

And then we have interim meetings where they bring their work to me and I check it. And then one thing leads to another and it’s a process that then you build on, always working for…hopefully to reach that point where, “You know what? We’ve really done our best. We’ve taken everything we had to work with here and we’ve done everything with it that we can.”

Scott: So, you sit down with a legal pad and a pen and you literally, from the beginning, you sort of lay out the blueprint for the case?

Doug: I do, I sure do.

Scott: And we’re not…we’re talking not a laptop, we’re talking yellow legal pad and a pen. How do you decide what goes on your to-do list?

Doug: I ask myself, “What is it that a juror would need to hear and be convinced of to return a verdict based on the truth?” And I start with my client’s account, and I work outward from there. The type of trials that I’ve had through the years I’ve always said are tried on multiple levels, Scott. There are certainly the legal issues, there’s that level. There are the expert issues that have to be addressed. And many of the cases, on another level, they’re like an old-fashioned swearing contest. The victim says, “You did this to me.” My client says, “I did not.” It’s like an old-fashioned draw your guns and fire.

So, the blanket that surrounds all of that in my preparation then is credibility, and, “How can I create bonds with people on the jury? What is there in the case that’s happened and how can I present it to them in a way that they feel the same way about certain issues in the case that I do?” And if I can get their respect and let them know how I feel about it… Now, that’s…you know, that’s not an easy thing to do, because obviously we have many restrictions. You cannot state personal opinions, you cannot invade the ultimate issue, I understand that. But I think it’s an art.

And I think that in looking at a case that way from a juror’s standpoint, applying common sense, acknowledging the fact that most people think that most people that are arrested and are indicted, most people think they’re probably guilty. You know? And to be realistic, when you start a trial and that judge reads the indictment to the jury…

Scott: It never feels good.

Doug: That’s a big mountain that you have to climb over the next number of days. So that drives the preparation.

Scott: So, when you’re preparing, when you’re sitting down and you’ve just opened the file when this is a brand-new client and you haven’t done anything yet, you might not have even gone to court for anything except for maybe a bond hearing. And you have a legal pad and you’re scoping out your vision for the case. From that moment, you are thinking about a perspective juror and what a juror would want to hear.

Doug: That’s correct.

Scott: And then you mentioned a minute ago assembling your team. And…you know, and I’ve worked with you on cases and I’ve heard you speak at events and I know that you call that team the community of innocence. Say a little bit more about that concept of the community of innocence and who gets on the team. What is your idea of the team when it comes to, you know, the early stages of preparing for a case, all the way through when the verdict comes in?

Doug: You know, the first time I started thinking that way, Scott, was the experience I had as an assistant district attorney. I tried so many cases where the defendant sat in the courtroom, there was no one in the courtroom to show their support for the person, there appeared to be very little work and preparation on the lawyer’s part to develop witnesses that would come in and show their support for the defendant. And, you know, I believe that jurors, to a certain degree, they want to do what’s right. And I think to a certain degree that a trial takes on a life in the four corners of the courtroom, a life of its own. And I think jurors want to return, in many instances, a verdict that pleases the most people.

Scott: Okay.

Doug: And so then the view of a jury trial, I started believing, needs to show to the jury that this person that’s accused is a good person, this person has people that believe in them, this person has people that are willing to take time out of their jobs and their lives to come here and show they believe in this person. And that starts to build credibility.

So early on, when I meet with my client, I tell them, “Bring people with you that believe in you. Bring people with you that know about the case.” I don’t ever get hung up on the attorney-client privilege because we are talking about innocence, we are talking about things that are going to present…be presented in an open courtroom. And that group that comes in, then I try to expand that group to bring in additional character witnesses, people that will support them, with the goal of, when we go into the courtroom, that we fill that courtroom with supporters. And I think that shows a tremendous thing to the jury that is missing…was missing in case after case after case that I saw tried by other lawyers.

Scott: Well, one of the things that’s part of that, and I know that I’ve been doing this job for a long time before you and I worked together on a case, is your approach to the client’s input and opinions. I know that lots of lawyers find…I mean I hate to say this, it sounds bad to say it, but I know that lots of lawyers find the client to be a source of frustration. Find the client… You know, the client who maybe researches legal concepts on the Internet or who, you know, gets hung up on things that maybe the lawyer doesn’t think is the most important thing. I know that lots of lawyers find that part to be very frustrating.

And I know with you, you’ve always just listened and made it a point to at least say to the client, or to the client’s family… Because sometimes it’s a family member that does Internet research or, you know, maybe gets off on some things that, you know, maybe don’t appear to be the most salient issues. I know from working with you that you take all of that in. And even if ultimately you don’t agree, you know, when all the chips are down, you’ve always made it a point to make sure that you don’t say “no” immediately and that that client and that client’s family member has been heard.

How have you been able to manage the client’s expectations and sort of manage the overall case and also manage, you know, a lot of influx of ideas or thoughts that maybe sometimes can get in the way and sometimes can be distracting?

Doug: You know, Scott, the answer to that, this might not be what you would expect me to say, but a lot of people have asked me over the years if my father was a lawyer. Because I’m asked who’s been one of my most significant mentors in my law practice, and I always tell them my father. And then people say, “Really? Well, I didn’t realize your father was a lawyer.” Well, my father was not a lawyer. My father did not go to college or law school. And it’s just a rumor that maybe he really didn’t graduate from high school, I’m not sure about that. But I just remember watching my father when I was growing up and how he interacted with people and the relationships that he had with them. And he loved to help other people. And he just felt that for someone to come to him and for him to be able to step in there and try to assist them in some way was…it was just very, very important and it really fulfilled him. And I think about that so many times because I think it’s not so much about practicing law, it’s really about practicing people. It really is.

And so then when I have that client or the relative of that client that does their Internet research, that comes up with these ideas, then I think it’s important to show respect for that and to… It goes back to the other philosophy I have, and that is, you know, when you get through with a case, to not wonder, you know, “Well, should I have done this? Should I have considered that?”

And so it means then that those ideas, those suggestions, those things they wonder about, the questions they have, that you pursue them and you really consider those. Now, I would never let that interfere with my judgment about what I thought was best, but, you know, Scott, we learn in doing criminal defense work it’s not so much about the judgment call, it’s more about the work that you do. And so unless you take the time to really follow up on what they’re asking, unless you do the work, then you have nothing to decide between. And so that’s my philosophy on doing that.

You know, the other thing, Scott, many clients we represent, they may be innocent, but they’ve made some bad decisions. And, you know, people make mistakes. And I find in many cases that I have handled that the client needs the input from their family members. They need their parents, they need their brother-in-law, they need their best friend. Because many times those people are not in trouble and they’ve got good judgment. And they help, you know, they help in the case.

And so by showing them respect for what they’re trying to do, the same principle applies if someone has an attorney that they know that they want to bring in to join the team. I always welcome that. You know, the more people you bring in to help me, that’s great. That doesn’t mean that I’m going to do what they say, but I’ll consider what they say. I think that’s what people deserve, I think that’s what effective counsel is, is to come in and not to get on your high horse and not to be dismissive of people and their thoughts, but to honestly consider them.

Scott: And, of course, we’ve spoken about the team, including the lawyers were on the case, and the client and the client’s family. But as you get an investigator, sometimes as you build also into experts, how do those individuals, how do they sort of work on the team?

Doug: Well, I go back to my thoughts on creating a structure of what you present to the jury. I believe that you plan the presentation of the defense case in the same way you plan a careful cross-examination of a witness. I think that you want to start strong and I think you want to end strong.

So, I have always advocated a structure to the defense that I put up that begins with my client taking the stand. Now that’s almost unheard of among other lawyers. Many, many lawyers try to find every way they can not to even have their client testify. I don’t advocate for that. I believe that a jury, if they want to believe somebody is innocent, they want them to get on the stand and they want to hear from them. And if they don’t, no matter what they’re instructed by the judge, if they don’t, they wonder, “Well, why didn’t they get up there and say they’re innocent?” And so, of course, that comes with work and preparation to prepare them. Not to tell them what to say, but to help them express themselves with what the truth is.

And so that is the important point, counterpoint, to experts, and that is to start off the defense case with my client on the stand, then to support my client with good character witnesses if we can. If we have developed reverse character witnesses, showing that the victim has bad character. Next, follow that by fact witnesses in the case, and then end with experts. And that is the basic structure that I advocate for with experts.

I also believe this. If you can find in an assault case, a murder case, a sexual assault, if you can find a medical question and if you can develop an expert that is supportive of the defendant’s case from a medical expert, then that to me is one of the most effective ways to defend a criminal case.

And the ultimate statement to the jury is, you know, “Ladies and gentlemen, you have a difference of opinion. You know, you’ve heard the state’s expert, you’ve heard our expert. These are medical doctors. And I’ll ask you that if you are making an important decision in your life and you hear from one doctor that tells you X, Y, and Z, is it reasonable that you would seek out a second opinion before you would have that surgery, before you would, you know, have a limb amputated? Is it reasonable that you would seek a second opinion? And if you did and that second opinion said, ‘No. You know, I don’t think that is malignant, I don’t think you have to do that surgery, I don’t think you have to remove that limb,’ then does that give you pause and is it reasonable for you to have a second thought? And that’s what reasonable doubt is.”

And so that is the essence, to me, of expert opinions.

Scott: So, you’re literally having…I mean you’re using that as an analogy to say something important about reasonable doubt to your jury, but at the same time you’re literally presenting a second opinion preferably in the form of medical testimony to the jury to consider that rebuts the medical testimony that may have been put on by the state.

Doug: That’s correct.

Scott: And it’s interesting to think about the structure. So, a lot of lawyers…I mean, and you’re right, most lawyers would prefer anything to putting their client on the stand. But then a lot of lawyers, if they are going to put their client on the stand, will put the client up last for the client to have heard sort of everything before the client testifies. Or at the very least will do everything short of the expert so that there’s a foundation for the expert testimony. But your general preference in the presentation of the defense case is to put the client up first when you start your case.

Doug: That’s exactly right. I have several reasons for that, also. I think that at the moment the state rests their case, that jury has been looking at my client for a number of days, they’re wondering. And at the time that the state rests, I think their antenna is up, I think they are the most receptive, and I think to stand up right then and say, “Your Honor, I call my client, John Smith, to the stand.” And they see him come up there, he raises, or she raises, their hand, takes an oath, and says, “I am innocent,” you know, “I did not do this.” And of course it comes with great work and tenacious preparation, you know, to do this, but most prosecuting attorneys are stunned.

Scott: They’re not ready for it then.

Doug: That’s right, they’ve never seen it. But I think that many lawyers do it because it just seems safer to put your client up after they’ve heard all the testimony from the other people. I do not advocate for that. I think in your preparation they need to understand all the different, you know, facts and what everybody is going to testify to, but I like to start off that way.

Scott: And most lawyers…I mean, and here’s a fundamental difference in philosophy that I’ve seen working with you, is that most of us tend to play defense. I mean we’re defense attorneys, we represent who they call the defendant. So, we tend to want to play defense, which is we spend most of our time sort of trying to blow up the state’s case through cross-examination. When the state rests, we often, you know, I say “we” collectively as the defense bar, tend not to have anything to offer. But I know from working with you that you are…you play offense from the very beginning. And so when it comes time for the state to rest, you tend to have a case that you put up that is sometimes as lengthy, if not lengthier, than what the state has put up.

Doug: That’s exactly right, Scott. And I think the way to win a case, in my opinion, is to put on a better case than the state does. I think when the state’s case is being put on, obviously cross-examination is extremely important. And obviously those points that you can make on cross-examination that establish part of your defense, you need to do that. Those things that you can neutralize, you need to do that. But maybe this comes from some of your early questions to me when I was an assistant DA. Maybe coming from a background of putting a case together maybe way back in law school when I won the moot court competition, when I constructed something to present, maybe that’s what got ingrained in me. Maybe it’s in my DNA. But I think making a presentation, prosecuting your defense, okay? Putting it up is the way that you can be most effective.

I also…this is not your question, but I also have always advocated when the client comes to me to immediately reach out to the district attorney and ask them not to go forward, stop. Give me an opportunity then to work and prepare the case, and then give me their word that they will just let me come see them and I’ll share with them the reasons that I think the case should not go forward. And in many, many cases that stops the case there, they’re not used to that.

And it’s the same principle. It’s not rebounding to something, it is taking the offense and it is getting out in front of it. And I think that’s a better way to be.

Scott: You work on building a case of your own. I mean of course everybody, if you can sort of poke holes in theirs, you will. But I think criminal defense attorneys, and really great criminal defense attorneys do an excellent job of this, tend to make our living on just poking holes in the state’s case because of the burden of proof and because of reasonable doubt and because the way the burden works. And, I mean, I know you don’t short-shrift that, but I know that you also, and you primarily, focus on building a case of your own.

Doug: That’s exactly right.

Scott: And the other thing philosophically, and this is a little bit off-topic. I know, having done pre-trial cases with you and having sat through a really long trial with you that I ended up handling after the trial was over a little bit too, that your philosophy is you don’t like to do a lot of objections during the course of a trial. You don’t like to… I mean you’ll object to preserve a record and all of that, but you tend not to make a lot of objections. I don’t hear you object and say, “Ask and answered,” or, “Leading,” or, you know, “Compound question.” I know that a lot of times that you tend to be very focused on dealing with the big evidentiary questions in the form of pre-trial motions and such that you have a fairy…you generally will have a fairly lengthy day, or more than day, of pre-trial motions in a case that’s going to trial and you thrash out a lot of those issues in front of the judge. And you tend to leave off a lot of the objecting during the course of the trial.

And I hope that’s accurate, but that’s what I’ve always found with your…with how you approach cases. Say a little bit about why you do things that way.

Doug: I think that if your pattern during your trial is repeatedly standing up with objections, I think most jurors look at that like you’re objecting to something that’s hurting you. Okay? I think most jurors look at that where you’re trying to keep them from hearing things. I think that is a recipe for a guilty verdict. I think that if you have worked your case and you have prepared your case, then you have a response, you have a position to take on those troubling parts of the case, and it’s better to let the jury believe that this is consistent with your innocence.

I read cases decided…do you know how many cases are reversed because somebody objected to a leading question or…

Scott: Never.

Doug: Never, it never works. And so I just think…I said before how important it is to establish credibility, you know, so the jury believes that you’re a good person. And then when you start expressing an opinion about something, they feel comfortable with that. And I think it’s counterproductive to be argumentative. When I was a prosecutor, I tried cases against lawyers, they would object to the color of the curtains hanging in the courtroom. I mean they would…you know, their clients, for the most part, all went to prison. I mean it just…they just did not win their cases.

Now, but that brings me to a very important point, that you recognize early on in the case what is the legal issue, what is really pivotal in this case, what is there in this case that could determine the outcome of the case. And so I always want to deal with that to the extent that I can pre-trial in front of the judge and never to overlook and just, you know, give up on anything like that.

Now, I have reached a point in my career where I’m now in this unbelievably favorable place of being able to work with you, Scott, on that phase of the case. And we…I’m so proud of the teamwork that we’ve done where you would be part of my team, you’re part of my community of innocence. And I take my lead from you on what you have identified, what the previous law is, and then most importantly, “Well, then how do I address it in this case that fits in the way that I like to approach a case?” And so you have just been a tremendous part of that effort and it allows me to do that part of the case better than I’ve ever done it in my career before where I was just shouldering that myself.

Scott: Well, I appreciate that. And what I find is that when you present the big legal issues to the judge in the form of a well-crafted motion and you’re doing it on a day that’s set aside for motions hearings, I find that there’s one incredible thing that you get from that and one incredible byproduct you get from that. Number one is you have the judge’s attention on a day when the judge is not worried about what jurors are up to, about… Because jurors are voters. And so you’re dealing with the judge on a day when to take up your motion is not going to inconvenience or delay a jury or it’s not going to involve sending a jury back into the room to hang out back there for an hour while you deal with your motion. You get better attention from the judge if you do this on a pre-trial motions day, and you get more deliberate action and more deliberate thought from the judge.

I think the second thing that I’ve found when we have gone into court together, particularly if it’s a judge we haven’t been in front of before or if it’s a county we’ve never been to before, is if you put together good motions and you’re putting forth good arguments on a day that’s dedicated just to that, that I find that a lot of times that you will build credibility with your judge, and sometimes even with your opposing counsel. That your judge sees that you’re serious, that you’ve researched the law, that you’re thinking through the issues.

And a lot of times the judge is more predisposed to be favorable to you during the trial. Sometimes just over the course of handling motions very thoughtfully you can work a case out or you can get a dismissal just having had…you know, reserving that time to do it in a pre-trial motion setting versus to try to do all that, you know, when you have a jury picked and it’s between the jury selection and opening or, heaven forbid, even during the trial.

I’ve always found that you get a couple of benefits and side benefits from handling the way that you do.

Doug: Well, there’s no question that this, to me, is another chapter in a book that should be entitled Go on the Offense. Don’t wait, don’t respond, take the initiative. And when a judge sees that, you build credibility with that judge. Judges are human beings, too. The jury ultimately will see how that judge interacts with you in the courtroom. And if you have gained their respect, if you have gained their attention because of the quality of what you’ve done, the jurors see that and that builds your credibility, also. And if you’ve dealt straightforward and effectively with those issues pre-trial, well thought out, also as you get into the trial I find there’s not as many needs to pepper them with objections because the district attorney knows that you know what you’re doing, also, and they’re going to mind their Ps and Qs because they’re not going to run over you. So, it’s…you make a great point, that there are many benefits to doing that.

And, you know, one example of this. When we defended the Dunwoody day care murder case, the Hemy Neuman case. And you were part of our team. And so as we went through the pre-trial process, we had ongoing discussions where you helped us and guided us and prepared our pre-trial motion, and helped me know how to present it, which we did. We gained the judge’s respect, but we couldn’t change his mind.

Scott: Right.

Doug: But that point that we raised, ultimately, when Mr. Neuman was convicted of…he was found guilty but mentally ill, which was a compromise verdict which I think was a victory in itself. But as you know, then we, together, raised that point and we went to the Georgia Supreme Court where you magnificently prepared the brief and argued it and we got that reversed. So, in one of the most aggravated, sensational cases in Georgia, by doing what you’re talking about pre-trial, not argumentative in front of a judge, a jury never was even aware of this issue. But by doing it with the judge, doing it thoughtfully and thoroughly early on and preserving it properly, after years of prosecution Mr. Neuman had absolutely, still, a clean slate when we finished his case.

Scott: That’s right, that’s right. And it was so helpful to do it that way.

Well, I appreciate you joining me for a little bit. What have you been up to during this pandemic over the past year?

Doug: Well, I’ve decided that Zoom calls are maybe a good thing. You don’t have to drive to work, you don’t have to get dressed to work, even at least from the waist down you don’t.

Scott: Right.

Doug: You know? As long as you look appropriate from the waist up. And so I have just continued, we’ve continued to work and prepare cases. We’ve been working on some very interesting motions and just eager for the courts to open back up. And we have…we’re going to be going to trial, our case was just specially set the day before yesterday for September 13th. We are defending the McMichaels down in Brunswick on the Ahmaud Arbery case. We are representing the son. And so we’re looking forward to that, working with experts, and look forward to trying that case.

We also are specially set October the 18th on a case out in Madison that is a child assault case. A very, very serious case. And shaken baby syndrome issues in that case, which we’ve done a lot of that. And so that’s a case we’ve been preparing for three and a half years.

And so those are two things we’re looking forward to. And I’m hoping that we’ve done it, Scott, so that, however the case comes out, we never look over our shoulder and say, “Well, could we have done better?” You know, because we’ve really worked hard and done our best. So, we’re looking forward to that.

Scott: Yeah, you’re looking forward to getting back at it. Well, thank you so much. I know with those two things coming up and other things you have going on, an hour of your time is very previous and value. And I really appreciate you spending that hour with me, talking to me about your background and your general approach to cases. Do you have any final thoughts or things you’d want to share with the listeners?

Doug: I feel very honored, to be honest, that you would…you know, you would interview me and that people would listen to this. It means so much to me, what I have done over the years. I believe in it passionately. And, you know, to live in a country where a person’s liberty or life cannot be taken from them without them having a someone stand as their advocate, you know, there’s no more fundamental, you know, right in our country than that and I believe in it passionately. And I’ve felt very honored to be a part of that and I just am very honored that you would interview me and ask me these questions. So, I hope that for those people listening, that maybe I’ve shared something that might be meaningful to them.

Scott: You certainly have. Well, I certainly appreciate the time and I look forward to seeing you again really soon.

Doug: Sounds great. Thank you, Scott.

Scott: Thanks for listening to The Advocate’s Key. For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com. And please rate, review, and subscribe to the show wherever you get your audio content.

Episode Synopsis: Carrying out his father’s legacy, criminal defense attorney Steve Frey offers stories from his own successful career spanning 28 years, beginning with his decision to go to law school and the lessons he learned then from his father Pete, an accomplished trial lawyer himself. Frey also shares advice on preparing for a jury trial and how to best use cross examinations to benefit your case.

Podcast Transcript: The following is a transcript of Episode 6 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Steve: He looked at me, though, and he said, “You know, son,” he said, “I’m proud of you, and you’re a lawyer now.” He said, “But if you think that’s the end-all-be-all, you need to move on.” I couldn’t really figure out what he was talking about until, you know, he really wanted me to know that, “Hey, look, you still gotta roll your sleeves up. You’re gonna work harder than you think you should. You haven’t made it to a point of coasting.”

Scott: That was criminal defense attorney, Steve Frey, talking about his father’s reaction to the day he passed the bar and became a lawyer. His father was both proud of him but also was being tough on him, telling him that the real work was beginning at the moment he became an attorney. I was grateful to spend an hour with Steve, talking about his development as an attorney, his decision to go to law school, and some of the things he’s learned along the way in many years of criminal defense practice. You’re listening to the “Advocate’s Key” podcast. For more information about this podcast and more about my practice, you can check us out at scottkeylaw.com or give me a call at 678-610-6624. Steve Frey, how are things?

Steve: I’m wonderful. How are you?

Scott: I am good. So, it’s really good to have you on the podcast. When I figured out that I wanted to start this up, you were one of the first people I thought about. You were probably one of the first lawyers I met when I first started practicing and, all right, because I know very well who you are. But for those who are listening, who is Steve Frey? Just kind of take a second to introduce yourself.

Steve: I’m a lawyer. I practice in Jonesboro, Georgia. I grew up in this town. I love this town. I no longer live here, but my father practiced law here. And I practiced law with him for a while, and then he passed away. And I’ve been practicing solo since he passed away in 2000.

Scott: And talk a little bit about Pete Frey, your dad. I never actually met him. I think when I was a third-year law student was when he passed away, and, of course, I worked in Jonesboro when I first started out with Lee Sexton. And he’s told me stories about you, and he’s told me stories about Pete, but tell me about Pete and what it was like growing up with Pete as your dad and what it was like practicing with your dad.

Steve: He was my hero. He was a cowboy. He was a first-generation college graduate. He put himself through school. He married my mother while he was still in undergraduate school, and my mother put him through law school. And he came out of law school, worked for a couple of firms, and then decided to try it on his own. We moved to Clayton County in 1971. He was elected state court solicitor in 1972. At the time, it was a part-time job, so he was able to practice law and be the solicitor. And then I think around 1982, they made it a full-time job, and John Carbo became the first full-time solicitor in Clayton County.

Scott: And when did you start practicing law, or when did you go to law school?

Steve: I went to law school in 1990 and graduated past the bar in ’93. I was sworn in by Bill Eisen.

Scott: Well, so for people who don’t know who Bill Eisen was, talk a little bit about Bill Eisen. I sort of remember him from when I first started practicing, but kind of paint a picture, what was it like in the ’80s and early ’90s to practice in Clayton County, Georgia? What was everybody like? You know, you talk about Pete and…

Steve: It was a smaller group. So, there was…you know, they had a snack bar in the Clayton County Courthouse, and that was a point of a lot of social contacts. There was a lot of camaraderie. Judge Eisen had been the…he had been an assistant district attorney, and then he was the elected district attorney, and then he became a superior court judge. And without going into many “Judge Eisen stories,” he was like having a big brother that used to just beat the snot out of you, so that whenever you went anywhere else, you weren’t afraid of any judges. So, he was wonderful in that regard. I do remember the first or at least the last time I ever used the words “judicial economy,” and he pointed out to me that judicial economy was him calling my case for trial right now. And I pointed out to him that that wasn’t necessary. He’s still doing some senior judging. He’s a little on up in age, but, you know, he really was that judge that you kind of felt like whenever you left your circuit and you, you know, were hunkered down, and the whole world was after you and your client, you know, and you were getting menacing glares from a judge. I’m not here to say that that was comfortable by any stretch of imagination, but you knew you’d been there before, and you knew that you could survive this.

;

Scott: So, talking about your dad. I don’t know how much you wanna talk about all this, but I know that from stories you told me in the past that maybe as a teenager, I don’t know if the word rebellious is the right word to use, but I know that maybe things were difficult between you and your dad when you were a teenager. Talk a little bit about your dad back in those days and sort of the path that you took from there to become a lawyer.

Steve: Rebellious would be the most polite word. You know, like I said, I was not a good student really at any level of school. I somehow was able to pass every test that mattered, but when I was in high school, my father had a dragster. And so we drag raced on the weekends, and that’s what I thought I wanted to do. And when it came time to graduate from high school, I think, my mother overheard me tell somebody that I wanted to drive a funny car for a living. And, I think, within six months, everything race car had been sold, and my mother had me at Clayton State enrolling me. And as always, you know, my mother was correct.

Scott: So, was your mom the formative one when it came to sort of…you know, she cleaned house and took care of the race car stuff when you were talking about that. What was your relationship with your dad like in that time?

Steve: He was an alpha bear without a doubt, and he cast a large shadow, and so sometimes we clashed. He used to have a saying that, you know, “Hard head makes for sore rear.” And I put him to task. I wanted to prove to him that I had the hardest head in the world, and he was more than willing to prove to me that he could redden my rear end.

Scott: So beyond just, you know, enrolling in college, did you know going into college? I mean, it sounds like that’s something that your mom sort of, not compelled you to do, but maybe compelled you to do because she didn’t want you to take a career path that she thought maybe was dangerous or wouldn’t be potentially lucrative or could have been destructive, so she got you to college as a way to steer you away from another thing. But when did you decide that you were gonna go to law school?

Steve: Again, you know, I was not the best student. I wanted to be like my dad. I cycled through college. I realized that, you know, now’s the time to enter law school. I had an LSAT score. I shocked myself to the law schools, ended up going to night law school. I had a professor at Georgia State tell me that I needed to go back to college and, you know, improve my grades, come back with a little better track record of being a better student, and my father stepped in and said, “No, you’re going to night law school, and you’re gonna pass the bar the first time you take it.”

You know, I went to night law school. I’m not gonna say that I became a grad student then, but I did have some successes. And every time I pointed those out, my father would tell me that…you know, he thought that was wonderful, but that it was going to be sad when I failed the bar. So, when the bar rolled around, I scared the living daylights out of me, and he was kind enough to give me a leave of absence for about 60 days. And I, what were those, PMBRs. Yeah, I put my head in those PMBR books and took those multi-state tests over and over and over again. By the grace of the good Lord, I passed the bar the first time.

Scott: So, when you were in law school, you were working for your dad, you were working in your dad’s practice then?

Steve: I was.

Scott: What was your job, or what was your daily…? Sort of what was your daily routine like when you were in law school?

Steve: We went to school at night. So, I along with most other students, you know, non-traditional law school students, most of us had 40-hour jobs. So, my day would begin here at the office. My father would dispatch me to do certain things for him. Some of the judges would have probably accused me of blurring the lines a little bit, you know. A couple of them hollered and screamed at me, but, you know, I did what my dad wanted me to do. He got sick while I was in law school. So, he was able to get a cancer-free diagnosis, but it came back a couple years after I got out of law school. So, I really never had a chance to try cases with him or do anything like that.

So, you know, my job largely as a law school student was to try to be the best right-hand man I could for him. And when I practiced law along with him, he started getting sicker towards the…you know, about ’96 until his passing. He was sick and unable to really withstand the rigors of trying serious cases. So, I didn’t get a chance to do that much with him. We would sometimes talk it in the evenings when I was trying a case, but, you know, unfortunately, we never really had a whole lot of shared stories about practicing law.

Scott: So, you said a minute ago that when you were in law school and you were kind of working there in the practice that the lines were blurred. I take that to mean that probably you were doing some actual lawyering, that maybe you were pretty close to being a lawyer when you were in law school. And some [crosstalk 00:10:57].

Steve: You know, I was answering some calendars kind of getting prosecutors to hold for Pete’s announcement. Usually, he would dispatch me within the Clayton County Courthouse. He would go where the conflict had him go first, and then I would alert the judges that, you know, he was in route where he was from when he would be here. I did get a chance in my third year of law school. Matt Simmons swore me into practice under the third-year practice act, and I prosecuted some in the solicitor’s office with Elizabeth Baker. She was my mentor, a longtime friend. I’ve known Elizabeth almost all my life.

So, I did get to practice law. I remember, you know, a couple times Pete sent me someplace. I remember one time I got a continuance because it was a preliminary hearing, and I was over in east point in front of George Barron, who was just a wonderful man and a good judge. And I got out there, and I realized it was a preliminary hearing, so I got Judge Barron to continue it, and came back and told Pete, and, of course, we marked the calendar. And back then, Judge Barron would hold court sometimes in the evening hour, you know, around 5:00 or something 4:30 or something like that. So, as Pete’s leaving the office one day, I said, ” Hey, man, don’t forget so and so,” you know, and he kind of looked his watch. You could tell he was a little agitated about that. And I said, you know, “Man, they’re expecting a lawyer to show up this time.” And he looked at me, and he said, “Well, you need to get on over there. I guess we’re gonna find out what you’re made out of.”

Scott: And you were still a law student at this point?

Steve: Yes. They weren’t expecting a law school student. You know, bless George Barron’s heart. He was kind enough to not call me out. I think he saw the predicament I was in. I ended up negotiating a plea to a city ordinance. We took a plea and paid a fine. And I’ll never forget because the guy…Judge Barron was like, “Well, so you’re not representing my counsel.” He’s turned around, and I shook my head, “No, you’re not.” He said, “Okay.” But I mean, it worked out wonderfully for the client because it went from a felony to a city ordinance, and we paid a fine and walked off.

Scott: You did great.

Steve: Yes. I was proud of myself we’re outside the statute of limitations. I did practice law a little bit there and got away with it. But, you know, the one thing that Pete did when I passed the bar, Scott, he got me in here. We had survived a tumultuous teenage years, and, you know, I’d gotten through four years of college without any troubles. And I saw him cry for the first time, and he looked at me, though, and he said, “You know, son,” he said, “I’m proud of you, and you’re a lawyer now.” He said, “But if you think that’s the end-all-be-all, you need to move on.” I couldn’t really figure out what he was talking about until…he really wanted me to know that, “Hey, look, you still gotta roll your sleeves up. You’re gonna work harder than you think you should. You haven’t made it to a point of coasting” or, you know. So, I miss him terribly. He always had a knack for summing up your circumstances in a couple of words that made sense to you, gave you some assurance that you could tackle what lied ahead.

Scott: So it sounds like in two instances he did that. So, with the bar, he said, “You’re gonna go to night law school, and then you’re gonna pass the bar.” But then once you got into law school, and you were having a little bit of success, it sounds like he sort of used the prospect of you failing the bar as a way to motivate you a little bit.

Steve: Without a doubt.

Scott: And then when you became a lawyer, he was so proud of you that he cried about it, but he also…it seems like the second half of that was, “But you’re gonna have to work hard,” like you haven’t really done anything yet.

Steve: Yes.

Scott: And was that something that he continued to use and motivate you kind of in your early years of your practice?

Steve: You know, he’d been a criminal defense lawyer for all I’d ever known, and so, you know, there were a lot of other things that he told me about the practice that I was getting into like, “You’re gonna go to other courtrooms and courthouses. You’re in a profession, son, where most people are dying to tell you no, and that’s gonna be, you know, from the bailiff to the clerk to the judge’s secretary. So, you know, you’re gonna need…And, I think, I heard you talking with Lester Tate about this. You know, I mean, nothing replaces politic in that courthouse a little bit, getting in there, being nice to the people at the door, being nice to the people that are sitting at desks. There’s nothing can replace that.” And he had a knack to try to, you know, instill in me that looks on, you know, no matter who you are, you still gotta get past these folks, and you need to treat them with all the respect they deserve.

Scott: And so starting off in your practice, did you primarily practice in Clayton, or right off the bat, were you going all over Georgia or all over Metro Atlanta?

Steve: I ventured outside of Clayton some. While Pete was still alive, I worked for him. So, there weren’t many instances where I went too far outside about 100-mile radius. I found myself in Gray, Georgia one time.

Scott: Jones County.

Steve: Yes. Down there, wondering, “What have I done to get here?” Fortunately, those folks were good to me, and we were able to work something out. You know, since he’s passed, I’ve been all up and down the Eastern Coast and, you know, been a lot of places practice law in a lot of different places.

Scott: Because I know at some point in time you got into some federal practice, and, I think, you still do a fair amount of federal work.

Steve: I do. I don’t do as much as the folks that I call and lean on when I have dumb questions and pray that they have the time to answer them. You know, my father told me, he said, “Son, if you’re gonna really be a criminal defense lawyer, then you’ve gotta go practice in federal court.”

Scott: When did you start doing federal practice?

Steve: I got sworn in, I think, by Judge Shoob, but I didn’t try a federal case until after Pete passed. I tried two cases in the early 2000s, one in Virginia and one here in Atlanta, and won the Atlanta case with a verdict and won the Virginia case on a motion for new trial. It’s a long story. The judge just wasn’t gonna…he was gonna let the jury hear all of the inadmissible evidence and then deal with it after the fact. But he was kind enough to…you know, he told me, he said, “Son, you know, get a motion for new trial and make sure you make these deadlines. You’re gonna need to get admitted to the, I think it’s the fourth circuit.” He said, “You’re gonna need to get admitted there.” And then we handled some post-trial matters in the trial court, and the trial court corrected the error it made with respect to some crucial evidence and then entered a judgment of acquittal.

Scott: So you also mentioned a second ago that you won a federal trial in Atlanta…

Steve: Correct.

Scott: …which, you know, for people that don’t know that don’t regularly practice federal criminal work, you might go your whole career and never beat the U.S. Government in a jury trial. So, do you care to talk a little bit about that jury trial?

Steve: Yeah. And I agree with you, for those who have never done it, you know, it’s a daunting task. To kind of lean back on another Pete story, I remember he…I had some federal cases. I never tried one while he was alive, but I remember him asking me, you know, “When you look down at the style of the case, and you see it’s the United States of America versus you and that guy sitting next to you,” he said, “You feel a little overwhelmed.” But you really feel like you’re on the center stage.

And so I tried a case. We ended up trying it Noonan, the Noonan division of the northern district. We got a little different juror than you would have gotten in the Atlanta division. Had a little talk at one point during a break, talked with the trial judge over lunch just kind of waiting on some things, and then we talked about the case while the jury was deliberating. And he asked me, he said, you know, “A little different jury than you get up in Atlanta?” I was like, “Yeah. Yeah. Yeah.” But it was a methamphetamine conspiracy, and the other guy got to the Government first and told his side of the story, and the Government bought it hook, line, and sinker.

And it was really kind of funny, Scott, because I’m running around a Meriwether County, trying to get some people subpoenaed, and I get the sheriff. He was the sheriff of Meriwether County, I think, at the time that he was a witness as things changed, time changes, people move into different jobs or different positions. But at the time I served this gentleman with a subpoena to appear for the defense, he was the sheriff of Meriwether County. And so when we reported on that Monday morning, the judge asked me, he said, you know, “Are you ready to try the case? And I said, “Well, you know, I got some subpoenas out there, and I hadn’t heard from these folks.” And he said, “Who?” And I told him, and he looked at me, and I didn’t realize at the time that, you know, hey, the marshal handles you.

Scott: Not you.

Steve: Not you. So, I think, he was a little…you know, because he’s kind of…he asked me, you know, “You did this?” And I was like, “Yes, Sir, you know, I drove down there and put it in his hand myself.” And I’ll never forget. We’re sitting there, and, of course, it’s a Monday morning, you know, probably about 9:30, 10:00 as we’re sorting all this out. He got on the phone and found where this gentleman had largely ignored my subpoena and gone to the beach. I think within about 30, 45 minutes, the judge spoke directly with that particular witness and told him that he needed to come on back. And I’ll never forget because he left. We were in chambers, and I’m scared to death, man. I mean, you know, I’m sure that I can do this, but, you know, my stomach’s in a knot. And I’ll never forget, he leaves the room, and he comes back in the room, and he tells me….he assures me that he’s handled this and that that witness is on the way, and he kind of goes down a little checklist, and he said, “Now, aside from all of these things, son, are you telling me you’re ready to try this case?” And I said, “Yes, sir. I am.” And he said, “Okay.” You know, about five days later, the jury could cut him loose.

Scott: Which is phenomenal in federal court.

Steve: Phenomenal. You know, it was one of those things, Scott, I’m not gonna lie to you. I teared up wishing because that would have been really something i would have wanted to share with him because, you know, just as you said, the government is…you know, they’re a formidable foe. It would have been perfect if I could have been down at the King and Prince with Lee Sexton and Pete and maybe a couple other guys, and we all just told stories of that trial and others and just, you know, made it a good long night.

But, you know, that was a very interesting trial. We had a moment in there where the government’s prime witness who is a cooperating co-defendant, a DEA agent, was on the stand basically, recapping his particular position in all of this, and we got around to his proffer with the cooperating co-defendant. And I don’t remember exactly what the subject was, but it was largely to the point where the only two answers that the agent could make was is, “Yes, I’m listening to someone giving me self-serving testimony. Yes, he’s lying.” So those were the only really two answers at the point. And when we got to that point…and, of course, I’m feeling all tom cruise, you know, few good men, so I’m demanding answers, and the government objects. And we go to a sidebar, and we start trying to get to the bottom of the relevancy objection. And I couched my position in a term that all of a sudden, I thought, “Oh, I shouldn’t have said that.” And I don’t think the court was alarmed at what I said, but I think the…

Scott: Oh, way, I think you’ve told me this story before. So didn’t you say something along the lines of, “I’m not trying to screw around with the court or something”?

Steve: Exactly. Yes.

Scott: And then like it wasn’t a big deal at first and then…

Steve: Yes. And then he looked at me, and he said…over the course of about 90 seconds, he said…

Scott: If I remember it right, you caught it, and you said, “I’m so sorry, Judge.” You said something like that.

Steve: I said, “That was a poor choice of words.” And he looked at me, and he said, “Yes, it was,” and we continued to talk about the objection. And then he looked at me and said, “An extremely poor choice.” I affirmed that with a, “Yes, Sir, it was.” And then about 20 seconds later, he said, “Do you know why it was an extremely poor choice of words?” And at this point you’re like, “Man, just hit me, you know, do something, but, you know, quit dragging this out.” You’ve got to give him room to tell you why it’s such a poor choice of words. So, you know, much like a bullfighter, I wave the cape, and then he comes charging at me, and he points out to me that I can’t screw with him but that he can screw with me. And at this point, I’m thinking, you know, “If you don’t leave me alone, I’m gonna start crying,” you know, and I’ll never forget. We get to the very end of the conversation, and he’s never ruled on the objection. You know, and, of course, the DEA sitting over there on the witness stand all smug, knowing that I’ve just gotten paddled over there.

So I’ve been told to go back to the desk, and as I’m walking, I thought, “You never ruled on the objection.” Because I’m looking at the DEA agent like, “Hey, buddy, I might be, you know, a little apprehensive of him, but I’m not apprehensive of you.” And so I’m dying to get back and begin. So I realized, “Holy smokes, we’ve never ruled on the objection.” So I stop, and at this point, it’s a conversational tone of voice, and I said, “Your honor, you never ruled whether I could ask that question or not.” And he said loud enough for everybody to hear, “You can ask it from the county jail.” And, of course, at that point, the agent’s looking at me like, “Yeah, that’s right,” you know. And, of course, the jury, they know that I’ve kind of gotten paddled a little bit. They don’t really rule [inaudible 00:25:41], and so, you know, they’re still looking at me like, you know, “What are you gonna do?” You know, and one of the things I’ve noticed about jurors a lot of times is if you can handle it respectful. There’s no set of circumstances under which you can be disrespectful to the court or to the structure in which you’re trying this case, but if you still stand tall and stand the gap, you’ll get a little respect from them, even if they look around and go, “Well, I don’t know if I necessarily agree with that.”

Scott: What do you think jurors from…? Gosh, you’ve probably tried hundreds of cases by this point in time, I mean, between bench trials and jury trials because you’ve done this for…you’ve done this for maybe a few years longer than I have. What do you think jurors are thinking when you’re in a situation? I don’t wanna name names, but we could probably name names of judges that have made it a point to try to embarrass you in front of the jury. What do you think jurors think of defense counselor? What do you think they’re processing when a judge is just riding you left and right in front of them?

Steve: Well, you know, obviously, their lens is gonna be from, you know, what you’ve done up to the point that this happens, assuming that you’re still treading water, okay, and you’re in play. I think a lot of times, juries pick that up. Okay? Now, what they do with it, you know, remains to be seen. Even jurors sometimes it’ll come back…the convict your client will come back and tell you, “Hey, man, he didn’t give you a fair shot, or hey, man, I saw when, you know, you were trying to do X, Y, and Z, and he was making sure you didn’t get a chance to do that.” You know, and especially, Scott, in this day and time where a lot of people are kind of looking around and questioning a lot of things, you know, that they’ve been told all their lives, I think the sense of recognizing bullies, I think people have a keener radar for that.

Now, that doesn’t give you a license to act like a fool. Okay? And it certainly doesn’t give you under any set of circumstances a license to show disrespect to the court. But, I think, the idea of that lawyer sitting over there, and he’s doing everything he can to try to represent this person, and that person sitting up on the bench is doing everything they can to make that hard on him or her, I think jurors pick that up. And I believe in close calls that sometimes they’ll give you some credit for that. Now, you know, if you’ve been just basically sitting in the courtroom while the Government puts up a case that’s largely unrebutted or, you know, not refuted in cross-examination, there’s no competing theory, you know, coming to pass, then they’ll slap you on the back out in the hall and say, “Hey, look, you got a card. You know, I like the way you did it.” When they’re trying to make up their mind, and one of the things that’s present in their mind is that he’s not getting a fair shot at this, I think that resonates with jurors.

Scott: So you’re talking about a situation where you do have a defense, you are putting up a competing theory, you’re being respectful, but you’re being an advocate for your client, you’re asking good questions on cross-examination, you’re raising objections, you’re responding to objections, but it just seems like in spite of all of that that you’re not getting treated fairly, and the judge is coming down on you a little harder than the state or the government. You think in that situation maybe a little nod goes your way from the jury if they sense that you’re not being treated fairly or that you’re being bullied.

Steve: I think they picked that up. Yeah.

Scott: So, now that this is sort of a larger topic. I think your practice is still…I think you’ve done some domestic, but I’ve always thought of you…

Steve: Just enough not to do it again. Yeah. I’m all criminal.

Scott: Okay. I thought I had seen you at various points in time every now and then with the domestic case, but I think of you as a criminal defense lawyer. Tell me a little bit about, you know, you’ve been doing this for how many years now.

Steve: Since 1993, so 28.

Scott: When you have a case, and you know it’s going to trial, what do you do to prepare for trial these days? What’s your approach? What have you learned about getting ready for it and doing a jury trial that, you know, maybe you didn’t do when you were first starting out?

Steve: I had an epiphany one time where, you know, I thought, “Man, I’m fixing to try this case, and it’s hopeless. My client is…there’s nothing appealing about him. The circumstances are certainly suspicious. You’re gonna have a cooperating defendant.” So, to answer the question, I think, the best thing a defense lawyer can do is sit down and prosecute the case. Take the government’s discovery, take the government’s witness list, and just map out what it’s gonna look like. How will this look when they try to tell the story they wanna tell based on the evidence and the witnesses they have? I think when you sit down and start doing that, you start seeing some loose boards in the flooring. You know, you start seeing where, “Hey, look, this witness has really gotta make a leap of faith, or the prosecution, you’re gonna get to a certain point, and they’re not able to get from A to B without hearsay, or you’re gonna get, you know, to a point where the witness just can’t tell the rest of the story.” And I’ve told clients this all along, you know, “Buddy, they get to go first. All right. So, you’ve got to figure out a way to work your defense into their case. You’ve got to get this jury’s attention as early as humanly possible because the concept of just waiting around until it’s our turn to put up a witness to say something favorable, you know, a lot of times the train’s already left the station.”

Scott: Or there is no witness like that. There’s nobody that you can bring [crosstalk 00:32:04].

Steve: Correct. And so, you know, you’re gonna have to…and one of the things I’ve always looked at, you know, if you’ve got a witness that’s saying A, B, C, and D, and if this is true, then if you’ll sit down…you know, and it takes a lot of time spending time by yourself looking at this stuff, maybe having somebody to bounce dumb questions off of because you never know, what, some remote question might trigger another question that gets you where you need to be. So, you know, if you look at a witness’s story, and you think to yourself, “Okay, if this is absolutely true, then what else would be true?”

You know, a perfect example is, you know, when you’re reading the police report about how, you know, the defendant became unruly, and I had to do this, and I had to do that, talking about a police report, you know, I was in fear of my safety, blah, blah, blah, blah, blah, blah, and you look up, and you realize, “Okay, this traffic stop occurred at 11:30 at night, and my client’s six-five, 250 pounds. So if he’s acting like this, then I’m sure you got on the radio a call for backup.” You’ve just got to carry the story on out and say, “If this is true, then there’s got to be other things that are going to be either true or not true based on this story.” You know, that’s where you start trying to unearth the story. You really don’t have any Perry Mason moments where the witness just confesses from the stand that, “Oh, by the way, you know, you caught me. I’ve made all this up.”

And I’ve always thought to myself as far as cross-examination is concerned, you’ve got really two levels of questioning. You’ve got the questioning where you know you can make them adhere to your line of questioning. Assuming that that goes as well as you would hope, then you’ve got kind of another tier of questioning where you can really, you know, raise doubt, but you don’t have anything that can impeach the witness, but you’ve made enough progress and effectively cross-examining this witness and proving that they’ve not necessarily told the whole story on these other instances. And now I can raise the specter of, “Well, you don’t have anything to back this up or the story you’re now telling me, you don’t have anyone that you told in time that this happened to you,” you know. And then they’re gonna say, “Well, no, you know, I didn’t call the police when that happened, or, you know, no, I didn’t go home and tell my roommate that this had happened.” You know, a lot of things that once, you know, you’ve landed a couple of punches on the things that you know you have control over, you’re able to get the jury to really start looking at that witness’s testimony like, you know, “I don’t know how much I can believe of this.”

Scott: So, there’s two levels for you in cross-examination. There’s number one, there are the facts that you can bring out from what the witness says. So, in other words you take the witness statement, or you take the incident report, or you take the police report. And you know that there are some things in that police report that the witness says that are good for you, and you know from the statement the witness is gonna say those things.

So, it sounds like your first level is you’re just getting out of the witness’s mouth those things you know the witness will say that’s helpful to your case. And it sounds like the second level is for the things that are bad for your client or the things that are good for the state or for the government, you’re trying to elicit the fact that… well, first of all, if they come in and they say something they’d never written before that’s not in the police report, that’s impeachable stuff. It sounds like the other level you’re going to is, “Okay, you said that, you know, you were on the side of the road with a guy that was six foot five, and he tried to fight you, and yet isn’t it true you never got on the radio and called for backup? Isn’t it true that you… whatever it was?” I mean, so in other words, you’re then going to the lack of evidence to support what he’s saying.

Steve: Correct.

Scott: And you do all of this under the larger umbrella of, “How would I prosecute this case if I were prosecuting it?”

Steve: Yes. If I were a prosecutor, and I had a witness that I knew I needed the jury to believe no matter what, am I gonna go out and try to find something that corroborates this witness story? So, like a good prosecutor would think, you know, “Well, okay, let’s go get his cell phone records, and it’ll show where he called somebody and said, ‘Hey, man, I’m out here alone,” you know, or something along those lines. So you have to start looking for them, you know, because the last thing you wanna do is ask about these questions, and then the guy say, “Yeah, I got it right here.” But yeah. You know, you wanna look at it from the perspective of, “Well, if what you say is true, then there are other collateral issues that would either be true or untrue based on the story you tell.”

One of the things that I’ve found in the past is it’s usually more beneficial to try and get out of the way first. I had a lawyer tell me one time, you know, “Dance with them as long as you can because you know you’re gonna have to fight them sooner or later, but dance with them as long as you can.” So, a lot of times, if you can start out your cross maybe with getting some things out of the way that both of you would agree to, it sometimes can take the edge off the witness, and, you know, then maybe they’re gonna relax, and you can get somewhere with them. Because a witness is looking at you like, you know, “I’m ready for you too. You know, I’ve heard about what an ogre you are, and blah, blah, blah, blah, blah.” I had a police report one time that was like five pages long, you know, and somebody’s like, “Man, that’s gotta be the most daunting thing in the world.” And it’s like, no, [crosstalk 00:37:37]

Scott: That’s perfect.

Steve: That’s perfect. There’s no way they’re gonna parlay every single thing that’s in this police report. The most difficult police witness I’ve ever had were those ones that just won’t talk to you at all. I had one. And I can’t remember his name, and I wouldn’t say it if I did because he was a friend, and he was a cop. And we were trying a jury trial. He was a responding officer. And he really didn’t know anything more than what he was told. You know, he shows up, and the victim says, “Hey, man, his client did A, B, C, and D to me.” And, you know, without getting into all the dynamics of the case, he just had too much pride to say, “I don’t know.” And the more he insisted that he did know, the longer I continued to cross-examine. And so we take a break, and it was in front of a local Clayton County state court judge. We’re out in the hall, and he’s gone to the end of the hall, and I’m standing there right outside the courtroom just kind of biding my time, and i’m looking at him, and he’s looking at me. And he says, “Hey, man don’t talk to me.” He might have used a couple of curse words and everything.

And I walked towards him, and I said, “Let me say one thing to you before you walk off.” I said, “You can call me anything you want after this.” I said, “But here’s the thing, buddy.” I said, “All you had to say was, ‘I don’t know.'” I said, “But you were too prideful to say that,” and I said, “And that just made this torturing experience that much longer.” You know, I tried one down in Griffin State Court one time, and it was a Georgia state trooper. It was a DUI, and there was a glaring issue with his report. And I had probably three pages of just subjects for cross-examination because I was certain he was gonna get up and just basically regurgitate his report. I get him up on cross, and when we get to that point in the report, he beats me to the punch and says, “Yeah, man, that’s wrong. I made a mistake there.” And so 45 minutes of, you know, just on the edge of your seat cross-examination just goes out poof.

Scott: Gone away because he said, “I made a mistake.”

Steve: He said, “I made a mistake.” And, you know, at that point, I kind of look around, you know, like, “Hey, look, man, I need to pick up some speed. You know, I had all these plans.” And he said, you know, “I made a mistake.”

Scott: What else do you do to prepare? You know, so first thing you’ll do is you’ll take it from the prosecutor’s perspective, but say a little bit more…and I’ve watched you do jury selection before. Tell me about what you do in jury selection, how you [inaudible 00:40:12] jury.

Steve: I’ve attended seminars on this. I’ve read books on it. It’s the most aggravating voodoo luck of the draw.

Scott: You go to those seminars, and the seminar people always tell you to do these things that you get all excited about doing, but then when it comes time to think about doing it, you know that some of that stuff is not going to work and [crosstalk 00:40:36]

Steve: Yeah. The judge is gonna shut you down.

Scott: In a hurry.

Steve: And then you’re gonna have really what’s, you know, my side of the table’s worst nightmare, and that’s getting paddled in front of the jury before we ever even get started. You have to be careful. Now, one of the things that I have…you know, you need a judge that’s gonna give you a little bit of latitude, and then, you know, at some point about two-thirds of the way through picking this thing, they’re gonna look at you and say, “Hey, look, man, you need to pick up the pace,” and then you try to do, you know…but the one thing that I’ve seen that makes jurors respond to you is if you talk to them like you’re just another human being. If you get up there and you start trying to throw around a couple of words and act like you’re something else, then they’re just not gonna come to the middle of the street for you. You know, they’re just gonna look at you. Some of them are gonna think you’re arrogant. You know, some of them are gonna think worse of you. A lot of them are gonna look at you like, “I can’t trust you.” You know, you’re sitting around here, strutting around like, you know, some sort of rooster, and, you know, you’re trying to act like you’re real important. You know, I see the trial judge rolling his eyes at some of the things you do, you know, or whatever.

But I had a jury one time, and my co-counsel took the first panel. And he came back, and he sat down, and he looked at me, and he said, “Man, I can’t get these people to do anything.” He said, “Are you willing to take the second panel?” And I said, “Yeah.” I said, “Let me do that.” So I get up there, and the first thing I tell them is I said, “You know what?” First thing I do is I tell them, “Hey, man, my name’s Steve Frey. I’m married. I’ve got two kids.” I tell them, “Hey, what’s good for the goose is good for the gander, so I’ll tell you a little something about me.” And then I look at them, and I tell them, “And you’ll usually get a little wry grin out of them when you say this.” I say, “You know what? I really think this is aggravating as hell too.” I said, “But they’re gonna make us do it. So if we work together, we can get through it a lot quicker.” And you’ll see them just kind of smile like, “Yeah, this is aggravating. I think you’re asking me stupid questions. I think you’re asking me questions of which are none of your business,” but they kind of look at you like, “Okay, you swore to me if we work together, we get through this sooner than not.”

Scott: You kind of make yourself a juror in a way because you say, “Look, I’m gonna reveal things about me to you before we get started because you’re gonna have do the same thing.” And then you say, “Listen, I realize this is awkward. It’s awkward for me to ask you these things.” And that disarms them a little bit.

Steve: It disarms them a little bit. And I’ll tell you, one time, I had a folder fall off the table, and it just…as you can imagine, they explode, and everything goes everywhere, and I just had to stop, you know. And one of the things that young lawyers and sometimes old lawyers, they don’t realize that 30 seconds of you shutting up and just handling something seems like forever while your heart’s pounding, and you’re…but it’s really not. And if you’ll just kind of look at them like, “Hey, yeah, aside from being a lawyer, I’m kind of a klutz too,” and pick it up and then kind of shrug your shoulders. They like to see you being humble back to them, and then they kind of feel you have at least 50% of the ownership in this, and you’ll get a little bit more out of them a lot of times.

You know, now, there’s no surefire of method. You know, you’ll have some of them that just look at you like, “I’m not gonna like you no matter what you do. You know, I think you’re willing to lie to me. You know, I think your client’s guilty. You know, I don’t have any idea what you think you’re gonna tell me, and I’m gonna be suspicious of you, you know, the entire time.” I think if they believe that you’re treating them with the respect that they deserve if you’re showing them that you appreciate the fact that really they’re not thinking about what’s going on here, they’re thinking about all the things that they’re falling behind on because they are here, you know, the fact that their boss is looking at them going, “I’d fire you except federal law won’t let me,” or the fact that you look at them and you go, “Hey, man, I know this is a huge pain in your neck, but I appreciate you.”

Scott: So, it sounds like to me you see the big part of jury selection. And I know that you’re looking to identify those jurors that you have to strike or those jurors that you have to get rid of for cause. It sounds like to me that you see jury selection primarily, and correct me if I’m wrong, you may not be saying this, but you see jury selection primarily as the way to build trust with your jury to have them understand who you are and where you’re coming from and to be receptive to hearing what you have to say.

Steve: Yes. Because the state gets to go first, there’s gonna come a point where you’re just gonna have to sit down and be quiet, you know, and they get to pray their witnesses back and forth. But the home run is when you convince them that “There’s gonna come a time where I’m gonna ask you to pay attention to a certain thing because I’m gonna parlay that into making you think.” And if you can get them to look at you like, “All right. You know, I’m gonna hold you to it. There’s gonna need to be some meat on the bone. But when you holler at me, I’m gonna pay attention to you.”

Scott: Is that something that you try to signal in jury selection? Is that something you try to signal in your opening?

Steve: You know, I had a case one time where that my fourth person ended up being a female. She worked at the airport, and I remember I’m getting goosebumps thinking about her because it was a case that probably, you know, there should have been a disposition other than a jury trial, but the client insisted on it. And so I knew that I was gonna have a jury that was gonna have to wade through a lot of things that, you know, was gonna cast suspicions on us, you know, and so I remember asking her. She worked at the airport. She had a managerial position. You know, she was responsible for other people. And she’s staring me into the blacks of my eyes while she’s answering my questions, and I remember asking her something along the lines of, I said, “Now, look,” I said, “if you were at work, and you had a red flashing light that that light signals that you’re to evacuate the building, you know, that you’re to turn and tell all of your…you know, these people beneath you that you are to…you know, run like hell,” and I said, “But you knew that that was wrong, that this was misinformation, you know, that you knew that this was a false alarm.” I said, “Would you have the courage to stand up in the middle of the room and tell them to stand down, don’t go anywhere I’ve got you, I’ve got this under control, you’re going to be okay, just follow me?”

And buddy, she looked at me, and she answered every single question with yes and all the way up to about hell yes, and they acquitted that guy. And she was the four person. I was telling that story to a prosecutor. She did a little private work, but she was always a prosecutor. You know, once a prosecutor, always a prosecutor. And she laughed, and she told me, she said, “Frey, all I’ve ever picked was the fourth person.” She said, “I settled on the other ones. She said, “But I wade into that group, and I find the one that will tell the rest of them follow me.

Scott: She selects for the fourth person.

Steve: Yeah. She said, “I try to find.” Now, she did mostly misdemeanors, so she’s only looking for six of them. But she said, “Yeah, of the 12 they put in the box, we’re both gonna get three strikes. I’m looking for juror for person number one, and then two, three, four, five, and six.” And she said, “As long as I cinch, the one that I believe will be the four person, the rest of them will follow.”

Scott: Do you think it’s defense counsel? You’re looking for a four person that’s open to you, or are you trying to eliminate all potential war persons?

Steve: Well, you know, Scott, the one that you like, they’re gonna be S1. So, you know, the idea of this ideal juror just sitting over there in the back left hand corner, you know, the other side sees them too. So, what I have found, my father, I used to listen to him tell stories about picking jurors, and back in the late ’80s when Eastern Air Lines was falling apart, and there used to be a lot of…you know, I can’t remember the dynamics of it. But Eastern Air Lines employees, they had that union fight that, you know, say no to Lorenzo. I can’t remember all the details. But what Pete pointed out to me is he said, “Son, this is the perfect person that’s willing to stand up and poke the bear in the eye and say, “Not on my time. I’ll die on this hill before I let you bully me.”

Scott: So you’re looking for the juror that maybe for whatever reason doesn’t…has been maybe disenchanted with authority figures, or maybe who knows what it’s like to be treated unfairly.

Steve: Yes.

Scott: Do you find that you’re generally able to find those jurors during jury selection?

Steve: The difficult thing about it is, is that the person you’re describing is usually not the person you gravitate to at a cocktail party. So, they’re not going to be someone that’s just, you know, glowing with the invitation of come to me, you know. So, you do look for that person. You want somebody that would be willing to stand up and tell the rest of the room, “I’m not gonna do it.” We used to try to lump folks in more generally and say, “Well, you know, my client looks like X, Y, Z. So I’m gonna get jurors that look like X, Y, Z,” you know, and in some jurisdictions that works for you because maybe you’ve got a little more X, Y, Z in the jury pool. But I tried a case in South Georgia, and I picked a juror that looked a little more like my client, and I realized, you know, I kind of got thinking about it as, you know, we went home. And I thought, you know, “At the end of the day.” Okay. And this was down in Irwin County, I mean, Ocilla, Georgia, you know, because you think, “What happened to that person in the jury room?” You know, and you thought they stood up for you for a little bit, but at the end of the day, they gotta live in this community.

And, you know, the notion that they’re gonna just pick up your client’s calls, you know, just because maybe they have some commonality with them and take a chance. You know, it’s a lot to ask a juror, you know, “Hey, man, you need to tell these other 11 people, you know, they’re wrong. At the end of the day, you know, it’s yes, it’s that anti-establishment person that’s willing to tell 11 other people, “I don’t care what you think. I’ll tell you what, I got an interesting story.” So, I’m trying a shoplifting case in Clayton County State Court back in the ’90s, and the jury’s hung. Okay. And at one point, the judge was like, you know, “Can you give me a number? Don’t tell me what score is but just tell me, you know, what’s the number.” And they were like five to one. And I remember thinking, “It’s that old woman on the back. You know, come on, quit being hard-headed” because at this point, I think I’m winning. Okay?

Scott: Mm-hmm.

Steve: And I’m thinking that the old woman’s the one holding out. Well, she was the one holding out, but she was the only one holding out for an acquittal. You just never know, you know. I tried one in Henry County from Arch McGarity, and you know what? He and I didn’t always get along on points of law, but I always enjoyed, you know, Judge McGarity’s company. He was a ton of fun to be around, you know, and we’re trying the case. And I’ll never forget, they’re home, you know, and it’s 5:30, and he’s looking at his watch, and he said, “And the state wants the Allen charge and the dynamite charge.” You know, they’re gonna give it, you know.

Scott: For those that don’t know, what’s the Allen charge?

Steve: The Allen charge…I’m kind of wading into your territory here, Scott. The Allen charge largely is where the judge tells the jury that, “This has been thoroughly tried, that both advocates have done as good a job is going to be done, the case is laid out as well as it’s gonna be laid out. You’re the best jury to determine the issues in this matter. Now, you know, I need you to go back and keep working at this.” So, here’s what Judge McGarity does. He gives the Allen charge, and, I think, he’s found out the dynamic, and it’s 11 to 1. Okay. And we all know that it’s not likely 11 to 1 to acquit.

Scott: It’s almost never 11 to 1 to acquit.

Steve: No.

Scott: Right.

Steve: So, he looks at me with that old rhyme grant he’s gotten, and he said, you know, “Man, it might not be a bad idea. Start thinking about striking a plea.” You know, my client, rest in peace, he passed away in 2020. You know, he ain’t playing to anything, you know, so we’re hanging out. Then McGarity says…he said, “I’m gonna step in there and see if they wanna keep deliberating, or do they wanna, you know, go get dinner. You know, let’s get their pulse and see what they wanna do. You know, it’s late in the day. They wanna come back tomorrow and everything.” And so I’ll never forget. He comes back out of the jury room, and he’s got this look of astonishment on his face. He says to me…and I can’t remember it. It might have been Jim Wright. He said, “Well, I asked him if they wanted to keep deliberating or if they wanted to take a break what they wanted to do.” And he said, “And this voice popped up from the corner of the room and said, ‘Well, it’s 11 to 1 now, it’s 11 to 1 after dinner, and it’s 11 to 1 tomorrow morning.” And he said, “So we talked.”

They found him guilty of the misdemeanor but hung on the trafficking in amphetamine. So, you know, that’s… So we take a mistrial. He declares a mistrial, and then he looks at me, and he says, “I’ll bet you lunch. I’ll give you six guesses, and I’ll bet you lunch. You can’t figure out which one I’m holding out for you.” And so I gave him six incorrect guesses, and he says, “No,” and then he says, “Hey, man, do you remember the dude on the front row kind of to the left middle?” And then, you know, I was able to describe the guy. I mean, you know, the dude with the curly hair and glasses, and he’s like, “Yup, that’s him.” And I looked at him, and I said, “Judge,” I said, “if you’d come out here and told me, I’ll give you 10 more minutes to argue.” I’d never even looked at him.

Scott: So you just never know.

Steve: You never know, man. And I’ll tell you something else too that kind of intertwines with that story. A lot of lawyers, you know, will have somebody that kind of raises their hand and goes, “Yeah, I know Mr. Frey, you know, blah, blah, blah, blah, blah, blah,” and then your ego sometimes will say, “Well, let’s leave them on the jury.” And that’s not always the best move, right? It’s really not. You know, I mean, you’ve been to cocktail parties, and they’ve heard you yuck it up and tell war stories and stuff, and a lot of times, they just don’t turn out. As a matter of fact, I would be willing to say many, many more times than not they’re not the jury you think they’re gonna be.

Scott: Well, listen, I appreciate you coming on this podcast with me. I’m about to wrap up. You know, I think probably the audience is mainly lawyers. Is there anything that you wanna…that I didn’t ask you about that you really wanna say or anything that you wanna say to the folks that are listening?

Steve: Well, one quick thing, because when you told me you were gonna ask about my dad, you know, I thought, “As a 55-year-old lawyer, what would I have told Steve Frey fresh out of law school with a father that practiced law?” I would have said, “Son, this is gonna get you to some places a little quicker maybe than everybody else to the pack, but at the end of the day, what’s gonna sustain you is proof that you’re willing to roll your sleeves up and do anything and everything. Serve your own subpoenas. Go, you know, now.” I learned a little lesson about interviewing your own, you know, witnesses because you can’t become your own witness when they look at you and tell you something they didn’t tell you.

But one of the things that I learned with Pete is, is that, “Hey, man, you’re gonna run into a lot of his friends, and you’re gonna run into some people that aren’t his friends.” And so this notion that you’re just gonna make the varsity team without ever putting on pads is wrong. And if you really wanna take advantage of having that boost, that extra, “Hey, man, this is my son,” do it by working your fanny off. I remember one time, and I’ll close with this, I did try a case with Pete where, you know, he did all the lawyer, and I was just…it was in front of Bill Eisen. And we had this one particular point that we felt like we were gonna really…we were gonna make hay all day on this point. Okay?

Scott: Uh-huh

Steve: And we got to the tree, we barked up at a bunch, you know, we got a little something, and then it kind of got shut down. And it got shut down because the other side had done a little research that, you know, we had. And I’ll never forget Bill Eisen tells me in only the way he could. You know, when I see him, you know, we’re in the hall or something, he looks at me, and he said, “One of you boys has gotta be the one that goes in the library. You all can’t be show horses. One of you all gotta be a mule.” Scott, I thoroughly appreciate this. I can’t tell you how honored I am for you to ask me to have done this. I do appreciate this. I think you’re a wonderful lawyer, and I’ll be forever in your debt for having asked me.

Scott: Well, the honor’s all mine, and I really appreciate you coming out. Thanks so much. I really, really appreciate it, Steve.

Steve: Thank you, buddy. I appreciate you.

Scott: Thanks for listening to the “Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com, and please rate, review, and subscribe to this show wherever you get your audio content.

Episode Synopsis: In her best-selling book, The Anxious Lawyer, co-author Jeena Cho offers guidance for lawyers looking to improve their mental health and practice of law through the use of mindfulness and meditation. Cho discusses why the dynamics and training most attorneys receive fail them in the long run and provides successful coaching techniques she uses to assist anxiety-ridden lawyers to create a sustainable career in law with less stress and more joy.

Podcast Transcript: The following is a transcript of Episode 4 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Jeena: Humans, in general, have a negativity bias, and we’re hardwired to imagine the worst-case scenario, but, I think, lawyers are uniquely trained in that way. You know, we’re not taught any tools for managing stress and anxiety, unlike therapists who are also in the human suffering business, there’s not a discussion about our own well-being. We tend to sort of pride working around the clock as the gold standard. I don’t know. There’s just this like Medal of Honor that we wear in saying like, “I just worked that…like I just work all the time.” And part of that is, you know, how we earn our living in that we bill in six-minute increments, so there’s this constant pressure to always bill more, which also means that we’re not valuing things like efficiency and, you know, figuring out ways of how to work smarter and not harder. Maybe those I think are just some other reasons for why lawyers are so anxious.

Scott: That was Jeena Cho speaking on the dynamics of practice and the dynamics of training for lawyers that make us uniquely susceptible to anxiety and how we don’t always come into the practice of law equipped to deal with it. I sat down recently with Jeena Cho to speak about her practice, her development of mindfulness, and the coaching that she provides to lawyers dealing with anxiety. Jeena Cho speaks and writes about creating a sustainable law practice. She’s a contributor to “Forbes” and “Above the Law” where she covers resilience, work-life integration, and wellness in the workplace. She regularly speaks on women’s issues, diversity, wellness, stress management, mindfulness, and meditation. And she can be reached at hello@jeenacho.com. My name is Scott Key, and you’re listening to “The Advocate’s Key” podcast, a show that explores the art and science of litigation with some of the nation’s top thinkers. For more information and content like this, go to scottkeylaw.com. Well, I’m joined by Jeena Cho, bankruptcy lawyer, and I wanted to say, mindfulness coach. Jeena, thanks so much, and welcome to the podcast.

Jeena: Thanks so much for having me, Scott.

Scott: It’s a real honor to have you on. For people that don’t know you, and I feel like many lawyers know you, introduce yourself to my audience. Who is Jeena Cho?

Jeena: Sure. So, I teach mindfulness and meditation to lawyers and law firms or bar associations around the country, and until fairly recently, I was practicing law, and we can maybe get into a little bit about my career transition. But right now I split my time between teaching mindfulness and meditation and also being a mom to a very active 20-month-old toddler.

Scott: That’ll test your anxiety levels for sure. So tell me a little bit about your background. You know, growing up, did you have a background in meditation? Was there some religious tradition that you came from where that was emphasized, or is that something that you came to later in life?

Jeena: No, it’s definitely something I came to later in life. Interestingly when I was in law school, I was introduced to a little bit of meditation. There was a…it’s called a Himalayan Institute, and there was a branch in Buffalo, New York, which is where I went to school. And I somehow randomly ended up in one of the meditation classes there, but, you know, I took the class, and I don’t remember, like, really getting much out of it. You know, I just did the course, but, I think, when I came back to the practice many, many years later, probably a decade later, you know, it’s one of those things, right, like you kind of became familiar with something earlier in life, and, I think, that leaves an imprint on you.

Scott: Right. So, tell me about…what was your undergraduate major?

Jeena: I was a psychology major.

Scott: Did you think that you would go on at some point in time and be a counselor or a psychologist before you decided to go to law school?

Jeena: You know, I think, I always wanted to be a lawyer. I am an immigrant, and we came over from South Korea when I was like 10 years old. And, you know, just growing up, I had this sense that people were treated very differently, you know, depending on, you know, your economic status, your socioeconomic status, and your race, and, you know, different factors, and surely with my own parents, primarily because they didn’t understand the language, and there was a huge language barrier, and also just the lack of understanding of how our justice system worked. You know, I saw them get taken advantage of in different ways. So I had this feeling like, you know, “If I can become a lawyer, I can correct a lot of the injustices of the world.” And also I watched a lot of “Law & Order” growing up. That was also how I learned to speak English, and so, you know, I remember thinking like, “Oh, that’s what lawyers do, you know. In one hour, they put bad guys behind bars, and, you know, they can really make a difference.” So that was part of the reason why I became a lawyer.

Scott: So you actually learned English watching “Law & Order” episodes?

Jeena: I did. Yeah.

Scott: So you were definitely bound for law school with that experience?

Jeena: I think so for sure. Yeah.

Scott: And so it sounds like from what motivated you to go to law school, one would think that you would have gone into criminal defense or to immigration.

Jeena: I did. Yeah. So I actually started my career as an assistant state attorney. So I, you know, kind of exactly followed that road map of what I saw on television, and, you know, I think, very, very quickly, I realized that my understanding of the justice system, even though I had gone through law school, you know, I felt like, oh, there was such a huge gap between my understanding of the justice system and what it actually did versus what I thought it would do. And so, you know, I very quickly realized that that was not the right job for me.

Scott: Where was the divide between what you expected and what the reality was?

Jeena: You know, I think, I had sort of a fairly black and white understanding of the world, and my first assignment I was assigned to domestic violence court. And, you know, I think, our justice system is just very, very poorly set up to handle, you know, lots of different crimes, but especially crimes involving intimate partners. You know, really the only sort of tool that I had was probation, which was not actually that great at, you know, helping them learn different tools and skills and also jail, you know, and certainly, they weren’t going to get better in jail. You know, and I also saw, in misdemeanor court, I saw the same people sort of come through this revolving door, you know, they would get caught multiple times for petty theft or, you know, for possession of marijuana or these like sort of low-level offenses. I just felt like I was part of the cog, and I wasn’t really improving anyone’s lives.

Scott: You were just kind of moving the file through the system, and nobody was getting any better. You know, I think, it can be frustrating for both defense counsel and for prosecutors and domestic violence situations because there are some very complicated relationship dynamics in those kinds of cases that the criminal justice system isn’t quite equipped to adequately deal with it.

Jeena: Yeah. Exactly. And, you know, I think, just also coming into contact so intimately with human suffering. I was definitely not ready for that. That’s one of the huge shortfalls of law school is you get this very concise analysis of, you know, like when you read a tort class, for example, you know, you learn these very concise understanding of, you know, “Here are the facts, and, you know, this is the application of the law. Here’s the law or the application of the law and here’s the conclusion.” But, you know, it’s very different when you’re sitting with someone, right, that went through some sort of a tragedy or some sort of a life crisis than, like, reading it in the analysis version in a brief.

Scott: Well, the term fact pattern is odd. I mean, just that we start to see human suffering, or we see it through the lens of there’s…you know, the term is a fact pattern. And when you are representing an actual client who’s suffering, or you’re prosecuting someone, and the victim has gone through certain things, it’s not a fact pattern. They don’t wanna be thought of as characters in a fact pattern.

Jeena: Right. Yeah. Exactly.

Scott: So you left prosecution, and I know you ultimately ended up in bankruptcy law. Did you go directly into bankruptcy from that, or was there something in between?

Jeena: Yeah. I took a little bit of a time-off. You know, I was sort of lost and kind of going through a career transition. I wasn’t really sure what I wanted to do, but I started doing some volunteer work. I was living in San Francisco at the time, and there’s a great organization called the AIDS Legal Referral Panel where you can sign up to get pro bono cases. And it was also great because you went and did like an all-day training, and they assigned you a more experienced attorney. And I just took a volunteer bankruptcy case, and he was an immigrant from Mexico. And, you know, he also, like, very much reminded me of my own parents and that he didn’t have an understanding of how our legal system worked. And he also had bipolar disorder. So, the impact of that was he would go through these spending cycles, and he racked up a lot of credit card debt, and he was just really afraid that he was going to be put in jail. But, you know, I was able to file his bankruptcy case and guide him through it, and he was just so grateful. And we hugged, and we cried, and I was like, “This is amazing. This is so different than putting people in jail for crimes.” So, I switched and ultimately started a bankruptcy law practice.

Scott: And in the midst of the bankruptcy practice, I know this is before you came to be a consultant and mindfulness coach and you came to be an author, did you ever run up against a point in time where there was anxiety that you were suffering that you felt like you needed the tools to handle? How is it that you came into this area of…not really practice of law but this area of practice?

Jeena: Yeah. You know, and just kind of looking back to what I was saying is when you do bankruptcy, I think, this is very applicable in so many areas of law is I was just knee-deep in human suffering all the time, really, needless to say, no one ever comes to see a bankruptcy attorney with happy news. And I didn’t have the tools to deal with the stress and the anxiety, you know, and I felt like so much was riding on these cases, and I wanted to deliver the right outcome for my clients. You know, I think, I was suffering from some level of like compassion fatigue or, you know, secondary trauma, which, you know, I didn’t know about any of those things, but I started to suffer from a lot of anxiety.

And then those like anxiety started manifesting itself in physical ways. So I would get, like, tension headaches. You know, I just have this knot in my stomach, all the time I just felt tired, and then I started losing hair. And I went to a doctor, and, you know, he would just tell me like, “There’s nothing physically wrong with you. This is just all in your head.” And then strangely, I started to engage in like avoidant type behaviors where I wouldn’t wanna talk to my clients on the phone or meet them in person, because a lot of times, they were very emotional. So I would, you know, try to like write them emails and like be like, “Okay. You know, tell me your story in a way that doesn’t involve emotions, so I can put it into a fact pattern.” But, you know, eventually, I couldn’t sort of ignore my own mental health anymore, and I was just really suffering, and it’s sort of a long story, but I eventually ended up learning mindfulness and meditation as a tool to cope with just the overwhelming anxiety I was experiencing.

Scott: What do you think the…? I mean, we can talk about some of the problems. I mean, there are all sorts of mental health and substance abuse issues that lawyers deal with, I think, uniquely as a profession. I mean, there’s nothing unique about that. I mean, I think, society-wide these things are definitely problems, but it seems to be particularly magnified in the practice of law. What is it do you think that it is about the practice of law that causes us to suffer as much as we do?

Jeena: Yeah. You know, I think, there are a lot of different factors. One is just the adversarial system, right? I was talking to a friend of mine who’s a physician, and he was like, “Yeah, like, my job is stressful too, but everyone in the room is trying to help me save a patient.” Whereas, you know, in our situation, right, you know, we’re trying to do what we can for our clients, but there’s this adversary, and, you know, there’s this conflict. You know, also, I think, we’re not taught very well how to manage conflict. There’s a lot of incivility in our profession. You know and, I think, a lot of times, we make these litigation cases so much more litigious than it has to be. There are all of these, you know, like dirty tricks that, you know, people try to play on each other and just not extending common courtesies. You know, I remember like I was getting married, and my opposing counsel dug in his heel, and he’s like, “I’m not going to stipulate to an extension.” And I was like, “Okay. Well, I guess we’ll go and talk to the judge and see what he thinks about this.”

But, you know, just like those type of things. Also, I think, because of our own training, lawyers are taught to imagine the worst-case scenario. We in some ways are taught that, right? So we kind of engage…we see the lens through this lens of catastrophizing everything. And, I think, we do this both professionally and personally. I think it’s really hard to…you, know, let’s just taking a step back, humans, in general, have a negativity bias, and we’re hardwired to imagine the worst-case scenario, but, I think, lawyers are uniquely trained in that way.

You know, we’re not taught any tools for managing stress and anxiety, unlike therapists who are also in the human suffering business, there’s not a discussion about our own well-being. We tend to sort of pride working around the clock as the gold standard. You know, if you ever tell your boss, “Hey, I need to take a mental, you know, health day,” I’d like to think that law firms are becoming more progressive. You know, I think, that’s still sort of frowned upon. I don’t know. There’s just this like medal of honor that we wear in saying like, “I just worked that…like I just work all the time.” And part of that is, you know, how we earn our living in that we bill in six-minute increments. So there’s this constant pressure to always bill more which also means that we’re not valuing things like efficiency and, you know, figuring out ways of how to work smarter and not harder. Maybe those I think just some other reasons for why lawyers are so anxious.

Scott: Well, I think, it’s two things that are uniquely stressors for me is sometimes it’s the clients more than it is my opposing counsel to the judge. Sometimes I feel like that’s the case. Sometimes you want to extend that accommodation to your opponent, and your client would love nothing more than for you to not do that kind of thing. I think the other thing that can be difficult that I find is, and maybe this is just knowledge work in general, not just the law, but in a given day, if you don’t have an actual court date, or you don’t have meetings scheduled, but you have a bunch of cases to work on, sometimes it’s hard to even wrap your arms around what the job even is like what you should…I’ll find myself in the middle of working on something and thinking, “Is this the right thing I should be…? Should I be working on something else other than this thing I’m working on?” It can be a little nebulous at times.

Jeena: Yeah. I totally agree with everything that you just said. Yeah. You know, it’s hard. It’s a great profession, but it’s definitely hard.

Scott: So now we’ve sort of identified some of the issues with lawyer suffering. It’s the competitive nature of the job. It’s a culture that encourages working around the clock. It’s the fact that sometimes opposing counsel will not be pleasant, or sometimes they’ll write letters to you and copy their client, and the letter is unusually harsh, I think, sometimes to entertain the client. You have lots of time pressures and plus there’s…I think you identified this at the very beginning. There’s so much at stake in our cases. I mean, people’s lives sometimes are riding on what we do. What did you find helped you to sort of manage or to get a handle on the anxiety that you were experiencing in law?

Jeena: Yeah. Multiple factors. You know, we can kind of maybe go through them one at a time. And, I think, just the very, very first step that I found to be helpful was you just talk to someone else. I met with a therapist, and I was just like, “I feel anxious all the time. I feel like things are…oh, I’m just waiting for the other shoe to drop. I’m just unhappy. My mind is constantly spiraling out of control, and I have no reason for it.” You know, I felt like I had everything like I was exactly where I wanted to be in life, and yet like I was just so unhappy. And that just sort of created this doorway in which…I mean, it sounds kind of, I don’t know, like so basic to say, but until you can sort of acknowledge what the issue is, right, you can’t really figure out how to solve it.

I mean, it just felt really soothing and comforting to like confide everything that I was experiencing to someone else and recognizing that, “Oh…” Because, I think, my fear was that if I said these things out loud or if I acknowledge them truly to myself, it would mean I was a failure, that it meant I was a bad lawyer. You know, what does this mean in terms of…? You know, I had to rebuild this whole life around my career. What does that actually mean? And then I also had fears about, you know, what would my clients think if they figured out that I was suffering from an anxiety disorder. You know, what would my opposing counsel think? Would they try to use this against me? What would the judge think, on and on and on?

And, I think, maybe the other thing, you know, we can kind of loop back to the question you asked before is that lawyers are perfectionists, right? And I felt like if this would be a proof that I was imperfect. So, you know, I think, just talking to someone was really helpful, and then learning that there are so many tools out there that…you know, I wasn’t broken as a human being because I was struggling with anxiety. It just meant that there were tools that I needed in my toolbox to be able to manage the anxiety, that it’s a human condition, right? Everyone experiences anxiety and stress, but we all cope with it in different ways.

You know, and just like spending a lot of time like adding a lot of different tools in the toolbox, and, you know, I’m still doing this now, you know. Part of the tool that I learned was, you know, mindfulness and meditation and also learning to be kinder to myself, which was just completely opposite of how I was trying to sort of operate in the world, you know, learning about compassion and, yeah, and, you know, maybe going through life with a slightly softer stance and really thinking about my values and how I wanna operate in the world.

Scott: So you’ve said three things there that I wanna circle back to and ask you a couple of more questions about. You talked about mindfulness, and then you talked about meditation, and then you talked about compassion toward yourself. I’d like to maybe spend a few minutes talking about what those things are. First of all, I think, mindfulness has become such a loaded term that sometimes, I think, maybe even the word itself can almost be alienating to people. What is a definition of mindfulness? Assume I’d never heard the word before. What does mindfulness mean?

Jeena: Yeah. I think in some ways, right, it’s kind of easy to define, but, I think, hard to like live. I don’t know, maybe like trying to like concisely describe, like, something like love, right? But also really thinking about it as a practice, a way that you live in the world, right? So it’s like when you love someone, it’s an active thing, and, I think, mindfulness is also like that. So to me, mindfulness is just paying attention to the moment-to-moment experience of whatever is happening, acknowledging it, but also meeting those moment-to-moment experience with compassion, compassion towards yourself, compassion towards others. So that’s, you know, how I like to think about the practice of mindfulness.

Scott: And so mindfulness is not just the thing that you practice while doing a particular activity like meditation, which we’ll talk about meditation in a second, but mindfulness it sounds like to me is what you’re saying is just kind of being where you are and noticing what’s going on around you and maybe also monitoring the internal narrative, the story that you’re telling yourself about what’s happening right now.

Jeena: Yeah. Exactly. Yeah. So, sometimes it’s described as like seeing things clearly. So, you know, we all sort of go through life with these lenses. You know, I can have the exact same experience one day, but I might be a little bit tired and cranky and maybe sleep deprived. So I’m going to experience that differently versus, you know, if I got a good night’s sleep, I’m really feeling good, and I’m really happy. So like really seeing things as they are and really like sort of noticing the details of things, which is really hard to do when, I think, so many of us are sort of lost in this mental fog all the time.

Scott: You know, at one point in time, you know, and I’m still very much new with this, I’ve been trying to learn this, I think, I told myself that, and this is the lawyer perfectionist, is, I think, sometimes we can take that into the practice of trying to be mindful, and I would find myself sort of being down on myself for allowing myself to get distracted. So, if the narrative was taking me somewhere other than where I was at the time like if I was talking to a client, and I was thinking about, “Well, gosh, tonight I need to, I don’t know, change the filters out of my AC.” When I would catch myself doing that, then I would be negative toward myself for having allowed myself to lose that moment.

Jeena: Yes. Yes. Right. This is actually a perfect segue to talking about meditation because I find that so many lawyers and myself included when they first start meditating, that’s like the first experience they notice, right, because you are sort of given this like assignment, and the assignment is to set, “Close your eyes and pay attention to the movement of the breath, breathing in and out,” and very, very quickly, your mind does what the mind does, which is to start thinking about the air filter. “And do I have milk? And what am I going to eat for dinner? And, gosh, you know, I forgot to take my vitamins this morning, and I need to order this thing from Costco.”

Scott: My freshman year in college, this guy cut me off from the salad bar line [crosstalk 00:23:58] that guy was a jerk. And I’m talking, and having done this for a little bit, it’s still within seconds this happens to me. I haven’t found that it’s gone away, and maybe it never does. But, I think, the trick I finally learned was, I think, maybe the noticing that you’ve done that and seeing it and then coming back is kind of where it all is anyway.

Jeena: Yes. And letting go of that self-judgment that naturally arises that, “Oh, I’m not doing this right. I’m failing at this. I’m terrible at this. I was supposed to be watching my breaths, and I’m thinking about, you know, that judge who, you know, ruled against my client, and the judge just, you know, didn’t get it right, and on and on and on.” Yeah. That’s the practice of meditation is it’s the formal and practice of mindfulness, right? It’s actually, you know, carving out time to say, “I’m going to take this little bit of time and watch my mind and train my brain to be more mindful.”

Scott: If I’m getting this right, mindfulness is something that’s potentially 24/7. It’s potentially, you know, you should strive to be mindful at all times, but meditation is the formal practice of training yourself to be more mindful through a particular practice or set of practices.

Jeena: Exactly. Yeah.

Scott: So what would meditation be? What are some things that could be meditation?

Jeena: Yeah. So there’s lots of different types of meditation. I think most people sort of think about, you know, sitting cross-legged with your eyes closed. I will also say, like, you can meditate in any form, right? So you can sit in a chair. You can sit on the floor. You can also practice lying down. You can do a walking meditation, and you definitely don’t have to sit cross-legged. Lawyers sometimes will be like, “I could never meditate because I have really tight hips, and I can never sit that way.” You don’t have to sit cross-legged. Yeah. So, you know, just finding a comfortable seated position, and then sort of a really classical way of practicing meditation is to just observe your breath.

Scott: I mean, literally, what would that potentially consist of?

Jeena: Yeah. So you know what? We can do, like, maybe a one minute practice for the listeners that wanna try it. So, obviously, you know, like a disclaimer, don’t do this if you’re driving, but, you know, wherever you may be, if you’re sitting, that’s great, if you’re lying down, that’s great, if you’re, I don’t know, in the bathtub, that’s also great, wherever you might be. It’s helpful though to just allow the eyes to close, and if that feels really uncomfortable to you, kind of narrowing your gaze and…so finding a spot maybe three or four feet in front of you and gazing softly at that spot, and just noticing what that experience is like. So just paying attention to whatever it is that may be present.

So you might be noticing your environment, different sounds around you, or notice different thoughts, and just very gently begin to notice that the body’s breathing. And, of course, the body is always breathing, so you don’t need to change how you’re breathing in any way, but just noticing the physical movement of the breath and the body, breathing in and out. And it’s very natural for the mind to wander, to engage in thinking or worrying or making the to-do list or daydreaming, and when you notice this, just very gently return back to the breath, breathing in, and breathing out. And let’s close the practice by wiggling the fingers and toes. It feels good. You can stretch, and whenever you feel ready, allowing the eyes to open. And that’s it. That’s a very simple meditation practice that you can do.

Scott: Well, thanks. I really appreciate you doing that. And for those that, you know, maybe have never done this before just so you know, I practice in the south. My practice’s in the Atlanta area. And so, I think, if I mention meditation to some people, particularly if they come from a particular religious tradition, it evokes some anxiety that there’s some “eastern religion” to this, but really, this is not…I mean, it can be religious in nature, but could you say a little bit more about the relationship between meditation and mindfulness and the notion of religion?

Jeena: Yeah. And I’ll just preface this by saying I am not an expert in that particular area. You know, I think, I come from the mindfulness of meditation more from like a science perspective and really, you know, understanding the neuroscience and the physiological reaction that takes place when you’re practicing meditation. But, I think, you know, in every religion, there is this understanding and emphasis on presence, right? So, you’re present to what is actually happening in the moment. You’re present to human suffering. You’re present to your own experience of the world.

And also, you know, there’s, of course, different types of prayers, which, I think, has a lot of similarities and overlap to meditation as well. You know, and I’ve certainly known people that practice their, you know, mindfulness and…maybe that’s not exactly the right word, but, you know, there’s centering prayer, and there’s lots of different types of essence like really dropping into yourself and either connecting with your own nature or the nature of God, you know, just connecting with something that is, you know, sort of deeper than the mental chatter that’s constantly going on in the brain.

Scott: Yeah. I think that’s really helpful. I think it comes from a tradition that really is from what I understand it is completely doesn’t take a position on whether you believe in a deity or not or what that deity is. It’s a set of practices.

Jeena: Yeah. I think we can certainly practice it in that way. I mean, certainly, and also not taking away from Buddhism. I mean, certainly, even like pre-dating Buddhism. You know, if you kind of went back, there was always…I mean, humans from the beginning had this sort of curiosity about, you know, understanding the world around them, understanding themselves, and there was this like long, long tradition of, you know, you call it prayer or meditation, the benefit of creating silence, of creating stillness.

Scott: Which kind of leads me to another point. And this is something that I found in trying to practice this. I can get up in the morning, and I can go through a perfectly great routine, I could meditate, journal, you know, do a yoga practice, do whatever, and I will find that environment really matters. And we can’t all…particularly as lawyers, and you write about this in the book, the notion of things that we can control in our practice, and I mean the law practice, things that we can control and the notion of things that we can’t control. And so, I think, practicing law, and I do criminal defense and some amount of personal injury and some business litigation. So, I’m very much in a litigation practice.

I find that I will often be put into situations where, I don’t know, sometimes the clients feel, like, very frustrated with the system, and they’re not in a place where they can talk to some of the people that are gonna decide things that are gonna have a pretty big factor in what happens to their…I mean, their lives hang in the balance of this system that frustrates them, and particularly now that in Georgia, the court system jury trials are shut down. So people feel less in control of their fate than ever. Sometimes the lawyer is the one representative of the system that they have, and we become the lightning rod for all of those frustrations.

And sometimes we’re dealing with people who maybe, you know, sometimes aren’t making the best choices, and so we sometimes are the recipients of a good bit of anger. Sometimes when we’re in court, the things going on around us are chaotic. There’s lots of anger. The judge may have had his or her fill of all kind… So by the time you get to 1:30, and maybe the judge didn’t have lunch, then everybody’s upset. So sometimes when I find that if I get placed in an environment that is chaotic, that we have things coming at us, and we’re surrounded by others who aren’t being particularly mindful, it can be challenging to maintain that.

Jeena: Yeah, for sure. So, two things I wanna say about that. One is that being mindful doesn’t sort of protect us from external circumstances, right, which is fairly obvious when I say it that way. I don’t know. I think, you know, maybe like when I first started practicing mindfulness meditation, I thought, like, none of these external things that are happening should have any influence over my mood, how I’m feeling.

Scott: I’m emotionally bulletproof now because I have this new thing that I’m doing.

Jeena: Yeah. And that’s not true at all. It just isn’t. I guess, you know, maybe to take like an extreme example, like if someone close to you died, and you practice mindfulness meditation like it would be kind of crazy to think like, well, you shouldn’t have any emotional experience, right? That’s actually probably unhealthy. What I’ve actually learned is that I…actually, it’s like creating a lot of space for my own emotional world. It’s not the absence of your own reaction. It’s the ability to recognize your own emotions and your own reaction and like being kind to yourself about it.

So, you’re in courtroom, your clients are pissed off at you, and the judge is just cranky, and like all of these things are happening around you. It’s not that you’re going to sort of be emotionally bulletproof, it’s that you have the ability to sort of process everything that’s going on and, like, move through it with a little more skillfulness and more ease. And, I think, where mindfulness meditation really comes in handy is, so in that moment you’re like, “Wow, there’s a lot of these things happening, and what’s the best sort of moment-to-moment decision I can make right now?” And also later in the day when you’re at home with your kids, and you’re making dinner or, you know, whatever it is you might be doing. You’re not still sort of carrying your day, right? You didn’t leave your mind back in the courtroom.

Scott: One thing I find is you find yourself as a lawyer sometimes in these situations where it seems like nobody is happy with you. The judge isn’t happy with you. You know, the system is adversarial, so your opponent is, not necessarily out to get you. But the opponent is working really hard to make it where you lose. And so sometimes your opponent’s not happy with you, and then very often, your client’s not happy with you. So like nobody’s happy with you. And in a situation where you really can’t yell at the judge, you have to sort of maintain your composure with the client, and you have to sort of be strategic and think through how to deal with whatever trap your opponent may be setting for you. You don’t really have a lot of control over those folks, and if you’re not careful, the first opportunity that you have where it’s safe to yell at somebody, that can end up being vented on someone who’s completely innocent.

Jeena: Yeah. Exactly. Right. And the training of mindfulness allows you to add a little moment of pause, right, between the stimulus and the reaction, which then becomes a response. So you get more skillful at not having those knee-jerk reactions. You know, I think, that’s like one of the huge, huge gifts that we can learn from practicing mindfulness and meditation.

Scott: And I know that you ultimately…I don’t think you’re engaged in the practice of bankruptcy law now. I mean, I think, you’re now full-time in the meditation space. I don’t know what to call it. You’re now a full-time author, and I know that you do retreats and you do classes, and so I know that your career now is very much devoted to helping lawyers. When did you make the decision to do that?

Jeena: You know, it was sort of a gradual transition. Just lots of like life circumstances too. We had a baby. My husband and I were running the bankruptcy law firm together. My husband ended up getting a job with the state. I was just like, “It’s just life,” right? You know, COVID happened, and it just…I just felt like I had like so many balls in the air, and at least in that moment, it felt right to close our law practice and for me to really focus on my consulting work and for my husband to continue practicing law at the states.

Scott: Did you find that in your bankruptcy practice though that through these tools that you were developing, how did that make a difference in how you were approaching the day-to-day life of being a practicing lawyer in a traditional law firm setting?

Jeena: In a lot of different ways. One was like constant like baggage that, I think, you know, we all tend to carry around as lawyers where like you’re literally dragging your caseload with you, sometimes physically as well like, you know, you sometimes have to drag boxes of paper around, but, you know, that like mental load of like always feeling like my brain was at work, that went away a lot. You know, I was able to sort of let things go a lot more easier, so, you know, I may have just, right, your client may say something to you. Before I would, like, chew over that conversation in my head like for a month. That really subsided a lot, or at least I was able to recognize when my mind was doing that and say, “Oh, my mind is doing that thing again. That’s an old habit.”

Scott: The worst for me is you’re at dinner with friends, or, you know, you’re doing something with your children, you take that brief peek at your phone, and then there’s that mean email or that mean text that will literally…you can look at your phone, and if you’re not careful, you can see a sentence or two that will just crash your weekend.

Jeena: Yes.

Scott: So, you were able to let go of some of that it sounds like.

Jeena: Yeah, for sure. And also maybe going back to that presence thing. I found that…it’s so strange because I felt like my clients…I think this is sometimes true like in criminal defense and lots of different practice areas too. I felt like my clients really appreciated the fact that I was there. They knew I was their advocate and that I was able to meet them where they were at. You know, sometimes they would be really upset. You know, I stopped taking it personally. It’s like, yeah. It’s like, yes, this sucks. Yes, it’s unfair, and I’m here for you. I think I was able to sort of allow their emotional world, their emotional outburst, their frustration to sort of like move through me rather than like holding it, you know. Before I felt like it would just kind of get all trapped, and I would sort of like get upset at the fact that my clients were upset, and it’s like…

Scott: You’d feel defensive. Sometimes I have a tendency to feel like this is an attack on me as a lawyer. It really has nothing to do with me, really.

Jeena: Yeah. Yeah. The legal system is just so limited, I mean, what it can do, the relief it can provide. And, you know, sometimes like the only thing I can do is just be like, “Yeah, it really sucks, like it really sucks that, you know, you had this whole string of life events happen. You know, your husband dies, and you lose your job, and, you know, your house goes into foreclosure, and on and on, and on, and you’re in bankruptcy. Like all of that is terrible. And this little piece is the only thing that I can do, but I can also just show up.” And like, I think, meeting that human suffering with compassion is really what the mindfulness meditation has taught me. And my clients like really seem to appreciate that. You know, I think, again, that’s like a skill that’s not taught in law school.

Scott: We have a tendency too if we’re not careful. I mean, it’s particularly starting out because we’re trained in law school to sort of filter out things that are “important” and things that are “not important.” And so a lot of times, clients wanna tell us things that we have a tendency because of our training in law school to just dismiss as being unimportant. It really is unimportant to how the judge may decide the case. It’s unimportant in terms of the ability to take that thing that they’re upset about and translate that into emotion or to an argument. And so there’s a tendency to dismiss that and think, “Well, that’s not important.” If you’re not careful, you just sort of will cut the client off. And I think that’s something that I’ve done in my practice that I’ve needed to sort of notice because there’s something that’s important to the client. They just need to say, and it could be they’re telling you this is how they’re suffering.

Jeena: Yeah. Yeah. Yeah. You know, in bankruptcy, a lot of times, the client like needs to tell me their story, and really the underlying message is that I’m not a bad person, right? I would imagine that also in criminal defense that’s also true. Right. And, of course, like none of us are the…some of who we are isn’t the worst thing that we’ve ever done in life anyway. You know, but they need to tell you their story, and, I think, my ability to just have a lot more spaciousness around and just being able to like sit and listen to a client really changed. And also like weirdly, I’m also drawing boundaries. So I feel like this is sort of like the weird like sort of the bookends is one, I felt like I was more present to my clients, but also I was much better able to be like, “I do not respond to emails on Saturdays and Sundays.” It’s that understanding. It’s like I have to secure my own oxygen mask first so that I can show up and be the best attorney that I can for you.

Scott: Say more about that concept of drawing boundaries. It seems counter-intuitive to the topic at hand that we’re discussing overall that part of this practice is setting boundaries with the client. So, say a little bit more about that.

Jeena: All of us, you know, need downtime, right, I mean, for lots of different reasons, and also just emotional and psychological boundaries. And it’s kind of tricky to even understand what that looks like. So it’s sort of an ongoing dialogue that you have with yourself, but I used to believe that I had to be on and available to my clients 24/7. So that meant, you know, if my client emails me at 11:00 pm, and I just happened to wake up at 1:00 to use the bathroom, and I happen to, of course, peek at my phone, I had to respond to that client at 1:00 am, immediately.

Scott: I’m guilty of that too.

Jeena: Yeah. And I realized that when I operate in that way, that leaves me depleted. And if I’m practicing with that sense of depletedness, I can’t be the best attorney possible, right, or a good mom or wife or any of those things. And so I learned that there are certain things that I have to do to just maintain my own well-being. And this isn’t like a checklist of 26 things that I have to do every single day. It’s just more of like a conversation and like a check-in that I have with myself, which is where meditation comes in so helpful because you can see like, “Oh, you know, I haven’t…I’m a little bit sleep-deprived, or, you know, I need to go see the doctor. I need to go see the dentist, or I need to go for a walk, or I need like a mental health day.”

And so that I’m like learning how to take really good care of myself. And the strange thing is when I first started doing that at my like therapist insistence, I was convinced that everyone was going to be angry with me, like, “Oh, honey, can you watch the baby for an hour, so I can go to a yoga class?” And I would be like, “I don’t know. Maybe he’ll be upset,” and he was like, “Yeah, sure that sounds great,” you know. And, I think, that sort of fluency or that practice of doing. And then it’s interesting because I’ve also had other people say like, “Oh, yeah, that sounds great.” And it also like frees other people to do the same. Like in modeling that type of behavior has this interesting ripple effect.

But also part of that is drawing actual boundaries in terms of like, “What does my relationship with you look like, and what are some of, you know, the boundaries that I’m not willing to allow you to cross?” And for me, like a huge part of that was how much access I was going to give to my clients. And again, I felt like, “Oh, they’re going to be upset with me.” And, I think, this is much easier to do with new clients. So like I actually changed our letter of engagement, and it was very explicit about like what the expected turnaround time is, “For when you email me during this time, you can expect the return response from me within this time frame.”

Scott: Oh, so, you actually put in your engagement letter things like how the communication would go.

Jeena: Yep.

Scott: Well, that’s very smart. I’ve never thought about doing that before.

Jeena: Yeah. You, know, and it’s sort of like setting the rules of engagement, right, for how our relationship is going to go and also just like opposing counsel. Like how I interact with my opposing counsel also shift, and, I think, this is a little bit more challenging. I just at some point decided that I was not going to sort of stoop down to engaging in incivility like I just…like that whole like tit for tat. There’s just so many of those things in our legal practice that I just was not going to engage in that type of behavior, that I was not going to send nasty emails, that, you know, if there’s like one of those conversations that I have to have, that I was going to do it over the phone.

And interestingly, in bankruptcy, like I work with the same opposing counsel a lot, and there were a couple of like really, really difficult relationships where like I would like literally think about this person all the time because I was so angry at her. And I just decided like I am going to really just sort of work on letting that hostility go, you know, and I won’t say like we’re besties, but like we started to engage with each other in a more civil way. Maybe that’s just easier because, you know, we have to sort of work with each other all the time versus like a one-time, right, interaction.

Scott: Right. If you got a nasty email…we talked about avoidant behavior before, and sometimes emails feel like the more avoidant path. It feels like, you know, we can say things on a keyboard that we would probably never say on the phone to another person or certainly never say in-person to the other person because it’s so tempting to go ahead and respond, and it feels so good at the moment. Was this the mindfulness that was letting you kind of put some distance between that? How are you…? That’s easier said than done.

Jeena: Yeah, for sure. You know, and it was not like I started practicing mindfulness then all of these, you know, things just happened immediately.

Scott: The clouds parted and the sun came down and everything was great.

Jeena: Yeah. No. Yeah. You know, I think just creating space, right? So you get an email, you read the email, you can feel the heat rise in your face, your stomach tightens, your heart’s beating really fast, and you identify and go, “Oh, there’s anger.”

Scott: There it is.

Jeena: There it is. There it is. And sometimes I would just sit there and write my angry response and then…

Scott: And not send it.

Jeena: And not send it. Yeah. I got really good at writing like very, very, very long angry emails and not sending it. The really interesting thing that happens is when someone sends you an angry email, and you send an angry email back immediately, that person will then immediately turn around and send you another angry email, right, and you get into this battle of where you’re trying to win, you know, World War III over an email.

Scott: And at no point is either of you going to say, “Oh, my gosh, you know what? You’ve proven me wrong and I resign the field to you like you…to your superior intellect, I note that you were right and I’m wrong.” But that’s never gonna be the resolution to that kind of dialogue, never.

Jeena: Yeah. And rarely, if I took 24 hours or 36 hours to respond with my opposing counsel instantly send me a response back, right? I don’t know. Like you’re slowing down the tempo in which you’re engaging with each other. You know, I think, that’s like my number one tip is to not engage in that. And it’s hard nowadays, right, where, you know, everything is so instantaneous, and, you know, sometimes it’s hard because sometimes you’re just pissed, and you just wanna say something, you know. Yeah.

Scott: So, in your book…it’s excellent, by the way, “The Anxious Lawyer.” I bought it when you were nice enough to agree to be on the podcast, and I know that in “The Anxious Lawyer, you know, basically, there’s an eight-week guide in here that sort of takes you through a set of practices. I would recommend this to anybody, by the way, “The Anxious Lawyer.” But suppose that someone came to you, and they said, “Jeena, I don’t really have a lot of time to read, and I’ll probably get around to your book one day,” but what are some good…? Like someone could, you know, tomorrow they wanted to sort of get a handle on their anxiety, what are some things like literally practically if I were gonna just block out in my calendar or tomorrow, “These are two or three things that I’m gonna do”? What are some basic things that you would recommend to lawyers to deal with anxiety or begin to get a handle on anxiety or maybe get a glimpse of mindfulness or meditation? What are some things you’d recommend to a person to start doing?

Jeena: Meditate for a minute or two. I would recommend one minute a day, but because I know lawyers are overachievers, I would say two minutes, and do it for 30 days. Pick a time in the day, put it in your calendar, which can feel a little bit silly because you’re literally blocking, you know, out…

Scott: A minute.

Jeena: …a minute or two. And there is, you know, a good research out there that if you meditate for two minutes a day over 21 days, you’ll start to notice some of these benefits that we’ve been talking about, and you might be like, “Oh, that sounds so simple.” Well, it’s really simple. So go ahead and do it for 30 days. And, you know, what that does is it creates an opportunity for this to become a habit, right? You know, it’s so easy for us to sit around and like intellectually talk about the benefits, a lot of these practices, but, you know, we’re not going to gain the benefits unless we actually do the practice. So, yeah, just meditate every day for 30 days.

And I’m gonna guess that for a good number of your listeners, there will be a day where they either forget it or something happens, and that’s where, you know, you can really become discouraged and engage in negative self-talk and say, “Oh, gosh, darn it, you know, I was going to meditate for a minute a day, and I couldn’t even do that, and I’m such a failure, and, you know, on and on and on.” Like kinda letting go of that self-judgment and just do it, you know, and that’s the really nice thing about meditating for like a minute or two is when you remember that you have forgotten to do it, you can do it right then and there. So this is how I actually learned to meditate every day is I said I’m going to…at a minimum, I’m going to meditate for a minute or two every single day. And there’ll be days, it’s, you know, 11:52, and I’m in bed finally, and I’m exhausted, and I go, “Shoot, I forgot to meditate.” I just set the timer for one minute. I close my eyes and just meditate, and then I check it off and go to sleep.

Scott: And then for that minute, what do you do? Are you doing basically what the exercise was that you brought us through a minute ago? What literally are you doing in that minute when you say meditate?

Jeena: Just breathing through, you know, feeling the movement of the breath in and out of the body. You know, for some people, it’s really helpful to, like, find a specific spot in the body where you’re like, “Okay, that’s where I’m going to pay attention.” So it could be like the tip of the nostrils where you can feel the air moving in and out. For some, it could be like the back of the throat if you can actually feel the movement of the breath there or in the chest as your lungs rise and fall. I always pay attention to my belly because that’s also where I hold a lot of tension, especially like if you’re doing the practice and you’re laying down, you can place a hand like right over your belly button and just feel the rise and fall of your belly like, you know, waves in the ocean. So you’re just paying attention, breathing in, breathing out, breathing in, breathing out, and then watch the weird things your mind does, and then coming back to the breath and breathing in and breathing out.

Scott: You don’t have to have a cushion. You don’t have to sit in the lotus position. You literally could be in your bed or sitting at your desk in a chair.

Jeena: Yeah. Yeah. The only thing you need to meditate is your mind and your body, and we have that available to us all the time.

Scott: So that’s kind of one thing that, you know, someone could practically do now. What are you doing on a daily basis? Sort of take the listeners through what your mindfulness practices these days.

Jeena: So I have a 20-month-old, and because of COVID, she’s home with us five days a week. She’s in daycare two days a week. So I do a lot of like toddler meditation. I do actually meditate for 10 minutes every day, but that’s mainly because I actually offer a live Zoom meditation every single day. And sometimes, you know, she’s like a wild child, and she’s just running all around, and she’s pulling my hair. Occasionally, she’ll sit next to me for a second and close her eyes, which is just super adorable. So, you know, meditating for 10 minutes, and then I do like a lot of, like, mindful pauses.

So, you know, when I’m washing my hands, not always, but often I take that moment as an opportunity to just take a breath like literally catch my breath and feeling the sensation of the water and the soap against my hand and just breathing for an extra second. I’m also just really, really mindful about the amount of like media consumption, news media. To me, I noticed the decline in my mental wellbeing when…and I know when it’s happening because it’s like I’ll start to feel kind of fatigued. I get that like mental fog. I feel anxious all the time. It’s like, oh, it’s because, you know, I’m scrolling, I’m doing the doom scrolling, and I have to stop. So, you know, just kind of putting some parameters. You know, I go outside, walk, even if it’s just for a minute or two. In January, my husband and I always do “Yoga with Adrian.” She’s on YouTube. She teaches yoga.

Scott: Actually, she’s great.

Jeena: She’s great. Yeah. And so every January, she does 30 days of yoga. So we’re on, what, day 21 now.

Scott: She’s the person with the dog that’s always [crosstalk 00:56:45].

Jeena: Yeah. Yeah.

Scott: Yeah. Right.

Jeena: So I do that. Well, at least right now that’s what we’re doing. And then, you know, I practice being really, really present with my 20-month-old daughter, and, you know, it’s lots of like playing blocks and playing blocks, and my mind is, you know, thinking about, right, like fill in the blank, and then I go, “Oh, yeah, my mind is thinking about that, but right now what is actually happening is I’m playing blocks with my daughter. So let me pay attention to that.”

Scott: You’ve mentioned this, and you’ve mentioned media consumption. How do you manage your relationship with your smartphone? I’m so guilty of this, even though I should know better.

Jeena: Yeah. So, I will periodically like delete all the apps from my phone. So, you know, for me, it’s like Twitter and Facebook are like the two of my guiltys. So I delete those. And, you know, just kind of like watching and seeing like, “How do I consume the media,” so whether that’s Facebook, Twitter, you know, your inbox, text messages. Like how does media get to me, and what does that relationship feel like? Does it feel helpful? Does it feel harmful? And if it is harmful, what is it about it that feels not healthy? So, you know, I’ll periodically go through and like delete apps from my phone. I don’t do it as much now but not having the iPhone on the nightstand. I have it on my nightstand, and this is like one of the things about living in 2021 is that I have a baby monitor, and the baby monitor is, of course, on my phone. So I have to have my phone.

Scott: And it’s app-based. So you have to have it there for that.

Jeena: Yeah. So I don’t know. But before we had Simone, my husband and I made the agreement that we would leave our phones on the kitchen counter when we went to bed at night, and that so radically helped just, you know, how much sleep we were getting. We would actually talk to each other or read books or, you know, do other things rather than doom scroll.

Scott: How do you keep up with email? What’s your practice for dealing with email and texts and things like that?

Jeena: I definitely check my email like a lot of people. I tried various things over the years, you know, like only checking my email a certain time of the day. What I started to do is actually, like, kind of read my email throughout the day but actually carving out time like a couple of hours. I basically do it every other day because, like, none of my emails are, like, urgent, urgent, so this probably won’t work for everyone, where I’m like sitting down, and I’m replying to all the emails. So, often like if you email me, it’ll take me a day or two to get a response back, but I found that’s helpful because then, you know, I’m sort of like I read the email. So it’s not like anything urgent. I’m not, like, anxious about it. And also it kind of gives me a little bit of time to like formulate a response.

Scott: So you’ll consume email the way I guess I probably do when I feel like I’m not handling it well, that you carve out time, not necessarily to check email, but you carve out time that’s your response time.

Jeena: Yeah. Yeah. So, the benefit of mindfulness and meditation practice is that you start to become aware of your habitual patterns and tendencies. So I noticed like, “Oh, I’m checking my email again, but wait, I literally checked my email, what, two and a half minutes ago.”

Scott: Thirty seconds ago.

Jeena: Yeah. And then I make different choices. It’s like, “Why am I checking my email again?” And, I think, there’s just like this kind of lingering anxiety, right, or maybe it’s like that trigger of the dopamine in your brain where it’s like, “Oh, I got another email.” And it might just be like, “Okay. Like what else can I do now? You know, what else can I do now to help alleviate that anxiety, or to get, I don’t know, the dopamine head? Or, you know, like what is it that I’m missing in this moment?”

Scott: Those apps are designed by people who are very smart at getting and maintaining…I’ve just recently watched “The Social Dilemma” on Netflix. Those apps are designed to maximize your eye on that screen. You’re not gonna beat them at this. We’re hardwired to do some things that that software is designed to exploit. And, you know, short of putting the phone away sometimes, I’ve decided that it’s going to beat me every time I try to defeat it if it’s in front of me.

Jeena: Yeah. And also like, you know, you, of course, know yourself, but, I think, the only…the best that we can do is to start to notice, right, and go, “Oh, this is my pattern,” and then asking yourself like, “How do I feel about this pattern?” So it may be fine that you’re checking your email like every 30 seconds, I think, for most of us, it’s not, and then start to, like, shift your pattern a little bit, right? It’s a gradual, like, you didn’t become instantly addicted to email. Like I remember there was like many, many years where like I would check my email like once a week.

Scott: Because you had to be at a computer lab, or you had to be at your desktop. It wasn’t even a thing.

Jeena: Right. Yeah. Until like these little…like dopamine-releasing devices came along that we hold in our hand all day long. Also, you know, until COVID, of course, I love going on retreats, whether that’s the day-long or weekend. I’ve done a month-long retreat, and it is shocking how your brain just feels different after, like, just completely, like, shutting down all the external noise. So, you know, if you have the ability to like completely disconnect from digital technology, even if it’s maybe like powering down your phone Friday night or locking it, you know, throwing it in a drawer on Friday night and, you know, maybe reclaiming it Saturday morning. See if there are little pockets, right, where you can like really disconnect, like digital detox.

Scott: And this leads me sort of to one more question, which is, you know, everyone would assume, and I bet we would probably assume incorrectly that Jeena Cho has this all figured out and is completely mindful 24/7 and has tackled all of this. And I bet that’s probably not true. Where are your pressure or pain points in this? Where do you find that things kind of…? Even as advanced as your knowledge is and even though you do this now professionally, where are the spots where you think things may sometimes tend to go off the rails for you with all of this?

Jeena: Oh, my gosh. Yeah. I mean, there’s, you know, for anyone that’s listening. And, I think, you know, every meditation teacher that I’ve talked to has said the same thing. All of those buttons inside of you, they’re there, like they’re always there. You get more skillful at maybe sometimes not pushing them as often or maybe having a more subdued or maybe a different reaction when those buttons get pushed. For me, I think, it’s maybe immediately my sort of day-to-day trigger points, I mean, aside from like the news and just like the craziness that’s happening right now, but also just like learning to be a mom to a 20-month-old who is not very logical, who is, you know, like doesn’t reason and will, you know, eat yogurt one day, and the next day she wants to throw it on the floor, and just kind of like watching my own reaction and just how angry I can get at a little 20-month-old and go, “Oh, there’s that reaction,” or just feeling super frustrated because she won’t eat any greens. It’s like, I think, all the human condition. Also, I think, just the grief. I’ve, like everyone, I’m just grieving the losses of people losing…grieving the losses of, you know, our day-to-day activity, just all the things that, you know, we so took for granted. So, I mean, all of those things, I think, compounded leads to just a lot of grief and sadness but also delight and joy.

Scott: It sounds like there’s plenty of places where we can find ourselves caught up in emotion, but it sounds…from what I’m hearing you say, it sounds like there are places where you finally notice it, and when you do, it sounds like the move that you have is that you don’t judge the emotion. You just say like, “There’s the anger, or there’s the sadness,” and you just kind of see it.

Jeena: Yeah. Not always for sure, but, yeah, it’s certainly more…yeah. I mean, you know, there’s sad… There’s outrage. You know, there’s outrage on injustice or, you know, in just…or things not being how it should be. There’s definitely like that little six-year-old girl and, you know, the side of me that comes out it’s like, “No, that’s not fair.” It’s like, “Oh, yeah, that’s what that feels like.” You know, that’s what outrage feels like. This is what it feels like to watch the suffering of others. You know, so many countless people losing loved ones to COVID.

Scott: I think when the numbers get huge like they have and the number of cases and the number of deaths. Sometimes the numbers can get so large that you lose sight of, you know, every one of those numbers is a human life. That can be difficult. And the news has not been easy to watch at many levels for a very long time.

Jeena: Yeah. You know, I think like collectively, we’re all struggling with some level of like…I mean, definitely levels of trauma, right? You know, there’s like take your pick, and I’m like wildly waving my arm here. You know, take your pick at all the things that I just, again, like, I think, unimaginable. You know, I remember like last February and March when the whole COVID situation started, I was like, “I thought it would be a little…” You know, I thought it’d be over in like a few months, and here we are, you know.

Scott: I thought that when there was a vaccine, I thought, “Well, we have a vaccine now. This will be over soon,” and now there’s…I think this is so frustrating that we have a vaccine, but there’s not enough of it.

Jeena: Yeah. Right. And, you know, just the rollout and how COVID is impacting people so differently. I mean, I feel so incredibly blessed that, you know, I think, COVID has impacted us, like, directly in fairly minimal ways, but…

Scott: Well, I really appreciate you taking the time to speak with me on this new podcast of mine, this fledgling podcast. I’ve really enjoyed it. I know that listeners are gonna enjoy it. Is there any last thing that you’d like to say to my listeners?

Jeena: I’ll share what my mindfulness teacher…it was like one of his favorite questions. And, I think, it’s not so much like finding an answer to the question but like living the question. And he was very fond of asking, “How can I be kind to myself?” That’s pretty profound, you know, checking in with yourself, asking yourself like, “How can I be kind to myself?” And maybe a different way of framing that is like, “How can I be kind?” Sometimes it’s, like, really hard to be kind to yourself. It’s sometimes easier to be kinder to others. If you struggle with that question, you might ask yourself, “If this was my best friend or, you know, my mom or my daughter going through this situation, what would I tell her?” And treating yourself kindly.

Scott: We would never say the things to our best friend who’s struggling with something similar to what we’re struggling with that we say to ourselves. I think we’re always harshest on ourselves. Well, I really appreciate it, Jeena. Where can people find you if they’re interested in learning more about you or learning more about your consulting, or if they’re interested in a book or are interested in some of the courses that you provide?

Jeena: Sure. They can go to my website, which is jeenacho.com. They can buy the book on Amazon, or I guess Amazon’s like the only place we buy books now. But, I think, they do carry that like Barnes & Noble, but it’s “The Anxious Lawyer.”

Scott: Well, thank you so much for joining me, and I really appreciate it.

Jeena: Thank you so much.

Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com. And please rate, review, and subscribe to this show wherever you get your audio content.

 

 

Episode Synopsis: Judge Stephen Dillard, the “Twitter Laureate of Georgia” and Presiding Judge of the Georgia Court of Appeals, shares how he has leveraged social media to bring transparency to his role at the court, and explains how lawyers can use social media responsibly and effectively to virtually mentor law students and to educate the public on the practice of law. We also discuss Judge Dillard’s more “global” view of complex litigation and how a potential appeal can help lawyers win better settlements and more secure judgments at trial.

Podcast Transcript: The following is a transcript of Episode 2 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Stephen: And I think judges being available on the platforms where the vast majority of communication is going on, it makes sense. And judges can use those platforms for good. Judges can make stupid statements in real life and they can make stupid statements on social media platforms. But judges can also make positive statements on social media. They can educate the public about the courts and what they do. They can use social media platforms to mentor young lawyers and law students. That’s something I never would have imagined, but it has just kind of organically happened. And it’s good given how little is known about the judiciary, what a mystery it is to many people. I think it’s also good for people just to see that judges are human beings.

Scott: That’s the honorable Stephen Dillard, presiding judge of the Georgia Court of Appeals, and Georgia’s very own Twitter laureate. He’s sharing why he is active on social media as an appellate judge, a role traditionally seen as distant, even monastic. In this episode, we talk about so much, including how to establish your authentic voice online as a lawyer or judge, the value of writing briefs as if they are a judicial opinion, and the importance of specialization as you think about legal issues, motions practice, and preserving your record for appeal. In other words, the importance of thinking about assembling an appellate teammate as part of your trial team to focus on shaping up your case for appellate victory even as you’re in the pre-trial stages of your case. I learned something new every time I speak with Judge Dillard, and today’s episode is no exception.

My name is Scott Key, and you’re listening to “The Advocates Key” podcast, a show that explores the art and science of litigation with the nation’s top legal thinkers. For more information and content like this, go to scottkeylaw.com.

So, I’m joined with Judge Steven Dillard, the presiding judge of the Georgia Court of Appeals, prior Chief Judge. And I’m happy to have him here with us today to talk a little bit about appellate practice, social media, whatever it is that we ended up talking about. How are you doing today?

Stephen: I’m doing well, my friend. I hope you are.

Scott: I’m doing great. How are things going with COVID at the court?

Stephen: I think the nice thing about being an appellate court and having a forward-thinking staff is that we had already been testing our systems and our ability to work remotely. We’d already been doing that long before there was any discussion about the pandemic just based on kind of our strategic plan and moving toward that more modern approach to work and having greater flexibility because even without the pandemic, as you know, Atlanta can be really challenging at different times just with regard to traffic or events that are going on. And so thankfully, our clerk and our staff did a lot of amazing work. So, when this hit, it was really kind of a turnkey operation. And we’ve been really fortunate. And a lot of the judges who live outside of Atlanta, we usually work from home anyway a couple of days a week. And so we’ve expanded that, obviously, but I think we’re doing fine. The work is getting done. If anything, I feel like I’m more productive because I’m not going to, you know, 10 or 12 events every month. I miss them, obviously. I miss being around people, but if there is a silver lining, it’s been that I’ve been able to get ahead in my work. And so I’ve been thankful for that. But I’ve been really pleased and proud of our staff for how they prepared us for this type of situation.

Scott: Well, appellate practice is one of the areas that lends itself to being able to work remotely. And I haven’t seen my physical office in about two weeks. I’ve fitted out my home office with… I bought better lighting, like, studio-quality lighting because I’m doing a lot of things by Zoom. Like I say, if you look for a silver lining, I think a lot of the things that can be done from home are done from home. And I’ve enjoyed doing routine motions, things like that from home.

Stephen: Right. Well, that’s gonna really be the interesting thing. Right, Scott? I mean, it’s going to be fascinating to see how much of this kind of brings the legal profession into the modern era. Are we still gonna have calendar calls where people sit around for hours waiting to simply announce? Maybe, but I think a lot of judges and courts are realizing just how much time was wasted and how much money was expended, you know, traveling or, you know, sitting around waiting for things to happen at the courtroom. And so I’m hoping that we’re gonna rethink. If there is a silver lining to all of this that we’re gonna rethink how we do the business of law. So, it’ll be interesting.

Scott: I really hope that some of the efficiencies sticks around after the pandemic is over because… I mean, there are certain things that you can only do in court. And I think the Court of Appeals and the Supreme Court has done a great job of moving oral argument online. I can’t wait for that to be back in person again.

Stephen: Me too.

Scott: But there are lots of routine administrative things, certain motions, you know, housekeeping sorts of things that we would be better off if we just move those things to online.

Stephen: I agree. And I think the appellate courts in Georgia, I think we’ve done about as well as… I mean, I’ve watched some of the Supreme Court’s arguments and I’ve obviously participated and watched a lot of hours. And I think we’ve done the best job we can in replicating the in-person argument, but it’s still not the same. But I am grateful because I think the attorneys who have appeared before us during this time have really worked well with our staff in kind of getting through the bugs and kind of getting like you’re dealing with your home office getting that equipped and ready to handle it. So, I think there have been a lot of really positives with lawyers and judges working together to keep the wheels of justice turning during the pandemic. But I’m like you. I can’t wait to get back to in-person oral arguments at the Court of Appeals. We’ve got that beautiful, as you know, that beautiful new courthouse and building in downtown Atlanta and we really wanna show it off. We want people to come see it and we want lawyers to be there and to be able to argue cases before us.

Scott: Right. I had an oral argument I think would have been in the new courthouse late in the winter. And that argument was moved to a college in South Georgia. So, I missed that opportunity to argue at the new courtroom. And then I have one coming up next month, but then that’s gonna be via Zoom, but I’m kind of excited to do it via Zoom as well. I think that’s gonna be kind of an interesting first for me as well. But I’m glad it’s working out.

Stephen: Me too. I mean, I think it could be a lot worse and like I said, I’ve been really impressed that we’ve been able to continue the business of our courts, largely due to our staff and their forward thinking, their strategy and their hard work just preparing us in general for the modern age. And so I hope all the courts are going to, as you pointed out, you know, think about these efficiencies that we’ve gained. And obviously, some of them, you know, may go by the wayside, but I suspect we’re gonna keep a lot of them.

Scott: Yeah, I certainly hope so. Well, I noticed during some of COVID or some of this period of time, I know that you and I teach together, so we know each other pretty well. But I don’t think I ever knew that you were the official Twitter Laureate of Georgia.

Stephen: Yeah. My good friend, Scott Holcomb, who’s a legislator, he and Josh McLaurin and Matt Wilson and there were some others too, and I apologize to them for not mentioning their names. But I think Scott was the one who spearheaded it. And when he found out about Judge Willett back when he was on the Supreme Court of Texas being the Twitter Laureate, it’s very nice. I think the main thing that I’m proud of is the extent that it recognizes doing social media in a way that can hopefully be positive, that can raise awareness and educate the public about the courts and, you know, hopefully, promote civility and civics education and things I care about. And so, you know, that’s really, to me, what’s being recognized. I mean, I’m in part being recognized, but I hope more importantly it’s the message that’s being recognized.

Scott: Well, and I’ve heard you speak at CLEs on this and I’ve heard you, you know, speak with the class about this. I know that having the kind of presence on Twitter, I think, has largely been very well received and most of the public and the bar and the bench really enjoy your Twitter account. But I know that there’s been some criticism of judges being on Twitter. What do you think is the good or the positive that comes with a judge on an appellate court or maybe even a trial judge or a Supreme Court justice being on Twitter and having a Twitter following?

Stephen: I think the most positive thing about it is… One of the things that’s often discussed in the media is that we don’t know enough about the courts, especially the judges that we elect in Georgia, we’ve made that decision. You and I could probably do an entire show on the pros and cons of judicial elections. That said, Georgia has made the decision to hold their judges directly accountable to the people through elections. And so because of that decision, I think, for a judge, it is political malpractice to not make those judges make themselves available to the public. And the positive of that is not just that it’s good politics, although, like my mom has always taught me, doing the right thing is good politics. And I think judges being available on the platforms where the vast majority of communication is going on, it makes sense. And judges can use those platforms for good. Judges can make stupid statements in real life and they can make stupid statements on social media platforms. But judges can also make positive statements on social media, they can educate the public about the courts and what they do. They can use social media platforms to mentor young lawyers and law students. That’s something I never would have imagined, but it has just kind of organically happened. And I mentor a lot of students and young lawyers throughout the United States. And that has been very rewarding. But I think just in general, it’s good given how little is known about the judiciary, what a mystery it is to many people. I think it’s also good for people just to see that judges are human beings. I think when you and I were coming up, Scott, I don’t wanna say we’re old, but we’re older. And we certainly have some experience now as lawyers and judges. And I wanna say when you and I were really young lawyers, you know, seeing a judge at a bar event or coming across one, I mean…

Scott: It was intimidating. It was very intimidating.

Stephen: It was intimidating. They had white hair. I mean, they seemed to be up here and we were down here. And that… I was intimidated. And when I became a judge, I just decided I wanted to take a different approach that I have always viewed being a judge, as a public servant. You serve the people. We’re not, you know, black robe philosopher leaders. So, that’s not… I’ve just never viewed the role of a judge that way. I take my job very seriously. I don’t take myself very seriously. I am a person who holds this position and trust. And I don’t think it’s a bad thing for people to know that there are judges who listen to alternative music and like college football and engage and consume some of the pop culture that other people in society. I think that’s a good thing. I think it lets people know that judges are human. They’re not just kind of cloistered off and they only come out when court is in session. So, my approach has been that you can educate the public about your job and what the Court of Appeals does. And you can still do that in person. I’ve done that through a law review where I’ve gone into detail, as you know, about the inner workings of the court. I’m big on transparency. I think it’s another way for courts and judges, courts can have their own accounts. It’s a way to promote transparency, to promote live streaming of our proceedings. There’s all sorts of things we can do. And I just think beyond that, I think it’s hard for judges who are going to be called upon to make really difficult decisions regarding the Fourth Amendment in technology to make those decisions if they’d only have basic competency and understanding about these platforms. And so there are other reasons as well, but that’s just… I know I’ve bounced around a little bit, but those are just some of the things that come to mind for me when I think about why it’s positive for judges to be on social media.

Scott: And I would imagine it probably makes life feel a little bit less monastic.

Stephen: Yes.

Scott: I’ve heard judges describe their job, particularly at the appellate level, as monastic.

Stephen: It is. I mean, it very well can be. And even in our new courthouse, as beautiful as it is, it doesn’t feel as homey as the old place where you could kind of go out into the hallway. We’re like in little pods, you know, at the new judicial center. And so that’s another thing. I do think it’s an outlet for that and it’s an important outlet. And I think, once again, it’s how people are communicating and people that do not realize that are going to have trouble, you know, understanding modern society. If you are not involved in social media, you’re missing out on the primary platform that people are using to communicate. My kids don’t talk that much on the phone. They don’t even text that much. They are primarily using, you know, social media, Snapchat, Instagram, other forms of social media communication to communicate with one another. So, once again, I think it goes back to competency and I think it goes back to, you know, not removing yourself. I mean, Scott, think about some of the oral arguments that you and I’ve listened to at the Supreme Court of the United States when technology comes up, you know, where there’s this lack of understanding among the… With all due respect to the justices, some of the things they say with regard to technology is just frightening. There’s that lack of an under… Now, I know that Justice Kagan, I’ve heard at least, has a Twitter account. She’s following people. And I think that’s great. Even if she’s not participating, I think it’s a good idea for judges to at least get an idea of what’s going on out there in the world.

Scott: Well, that’s the frontier of the Fourth Amendment right now.

Stephen: Exactly. Exactly. And so I do think it’s helpful to at least… I’m on TikTok. I don’t participate on TikTok. I basically use it to monitor my middle child. But even if I didn’t, I would probably still have an account just to monitor it even though that’s really not my thing. But I have an understanding of what TikTok is and what it’s about and how it’s culturally significant. I think… You don’t have to spend hours and hours a day. You can just check it out every once in a while and I think you can get a general sense of what it is and what role it plays in our culture.

Scott: But I’ve noticed also that you will, from time to time, you will take a sabbatical. You will say, “Hey, I’m gonna be away from here for a little bit.” And I know that you’ll leave those outlets from time to time.

Stephen: Right.

Scott: And why… I mean, I think maybe it was Lindt for maybe in one instance. But what are some reasons why you kind of will step back from it from time to time?

Stephen: I think it’s good to do that. I think like right now I’m thinking about taking a sabbatical because I think things are gonna get really, without going into the details of all the things that are going on in our society right now. I think things are in the lead up to the election are going to get pretty nasty. And I do think people that are on social media or public servants, I think there are times where it’s probably best not to do much on social media just because anything you do can trigger a response or it can be misinterpreted. And there are downsides to social media for all public officials, but I think especially judges. And so I do think you have to kind of be careful about, you know, you might post something and you don’t know there’s some event going on or some story that just broke, and it otherwise might be a benign post, but because of some event that you’re not aware of somebody might think you’re being insensitive. And so, you know, I think the next few months are gonna be pretty… And I’ve got the stress coming up as well. So, I probably will either take a sabbatical or reduce, you know, what I’m doing for the next few months just because I think things are gonna be really toxic, unfortunately. I think really what it boils down to is, I don’t if mental health is the right word, but sometimes you’re just not in the space where you got a lot going on in your life. I think it’s okay to step back and say, “I’m gonna take some time off.” I mean, I think, everybody, whether you’re a judge or lawyer or anything else, I think if social media is causing you to be anxious or it’s causing you issues, then it’s probably not a bad idea to step away for a little while.

Scott: When you step away, are you just not producing content or are you not consuming it either?

Stephen: I am not producing it and I’m consuming it less. I probably will still get on because every once in a while I’ll get messages from people that I’m friends with and that’s the only way they have to contact me. And so I’ll check for messages. And sometimes, even if it’s not someone I know, I might get a message from somebody asking for clerkship advice or something like that. So, even when I’m not consuming it as much, I usually check, you know, once or twice a day just to see if there’s anything. If my phone is blowing up, you know, then I might look and see, “Oh, what’s going on here?” Although there is apparently some new documentary where they recommend that you turn off your notifications. And I may end up doing that. It may be a good advice.

Scott: So, for a lawyer who maybe wants to step out into social media to promote their practice or for a judge or another public official that kind of wants to get into social media and use it, you know, as an outlet like you do, what are some best practices and what are some things to avoid?

Stephen: I, obviously, as a judge avoid any kind of partisan commentary. I think I would be careful even if I were not a judge in this day and age to… And I say that as a former offender of this. When I was a lawyer, I did engage in partisan commentary. I think even so it has become so amplified even in the last 5 to 10 years that I would at least be cautious about partisan commentary. And if I did decide to do it, I think you need to make sure that your firm or wherever you’re working is okay with it, that you’re not violating any written or unwritten rules. Now, if you’re a clerk or something like that, there are pretty strict guidelines about that sort of thing. But I just think if you’re trying… If you’re a sole practitioner, you’re trying to build a business, the idea of saying things that are going to alienate prospective clients, that just seems to me to be something you’ve gotta think about whether or not you really think your voice is so important and what you’re saying is so unique that it is worth the potential loss of income or the potential loss of clients. So, that’s something I think every lawyer… So, I’m not saying don’t do it necessarily. I’m saying I’d think long and hard about it. I do think there can be a price to pay.

Scott: It’s a challenging medium because it seems like it’s… I mean, the people who… The companies that create these outlets like Twitter and Facebook, they obviously are in the business of attracting eyeballs. And so conflict attracts eyeballs. It just seems like it’s not a place… Even if you think that you’re gonna engage in healthy, you know, spirited debate, it’s almost like a medium that doesn’t lend itself to it.

Stephen: Unfortunately, I think that’s right and can be right in many cases. So, if you’re gonna engage in that commentary, I think, you at least want to make sure that you don’t allow yourself to be dragged into… In other words if people are coming after you for, you know, a take that’s fairly middle of the road or certainly well within the mainstream of political or legal thought. If you feel compelled to do that, that’s fine. But I think you need to be prepared for criticism. You need to be prepared for nasty criticism. And you need to understand that, if that happens, it’s probably best for you not to respond in kind, especially when a lot of the people leveling this stuff that you are going to be anonymous, you know, they’re gonna be what I refer to as troll accounts. But one of the pieces of advice I give in the article that I recently co-authored with my good friend, Chief Justice Bridget McCormack from the Supreme Court Michigan. One of the things we talked about is don’t engage the trolls. It’s just not… It’s not worth it. But you have to distinguish between a troll and somebody who may be asking a good faith question. So, I tend to err on the side of assuming that the question is being asked in good faith unless it’s obviously not. If somebody comes and says, “I have a hard time navigating your website,” you know, I think maybe that’s a fair criticism. Maybe I need to ask them what the issue is and then tell my tech guys about it. Other questions are obviously bad faith and I think I just ignore those. And so I wouldn’t respond to trolls. I would try to put out content that is substantive and informative. If you are specializing in criminal defense in Georgia, there’s a lot of good accounts like yours and Andrew Fleischmann’s and others where you can become a bit of…known as an expert in that area and you can build up a pretty big following. And that’s a good thing. And I think you guys also do a nice job of, I think, conveying what I call an authentic voice. And I think that’s important too. I mean, you need to be… People need to be able to get a sense that this is a real person with a real voice, not just somebody that is promoting. You know what I mean? It’s…

Scott: Right.

Stephen: Obviously, that’s part of it. I mean, that’s part of it for me. It’s part of it for anybody who’s on social media. Part of it is promotion. And that’s okay. But to me, the promotion part should not be the driving factor. It should be that you benefit from putting out content that people enjoy or that people find informative, if that makes sense.

Scott: Nobody wants to be on the receiving end of a sales pitch, but people like to find value in what they’re viewing and consuming.

Stephen: Right.

Scott: So, I noticed that you are… I mean, I think we’re connected on Facebook too. But I noticed that you tend to be more active on Twitter versus Facebook. What is it about Twitter that you like so much?

Stephen: I think I like Twitter better just because Facebook seems to be… I don’t know what the right word is. Facebook strikes me as a little bit sillier. Twitter certainly has a toxic aspect to it at times, if not all the time. But I guess the way I would say it is I go to Twitter to be informed. I go to Facebook to inform.

Scott: That makes sense.

Stephen: I mean, I inform some on Twitter, but I also go to Twitter to be informed. Facebook is like where I go to kind of tell my family or friends that something’s going on. And while sometimes I’ll do cross-posts, like, the same thing on each medium, there’s a lot that I put on Facebook that I don’t put on Twitter just because it just might seem like oversharing. I try to show some of who I am on Twitter, but I’m probably a little more restrictive about what I put on Twitter in terms of personal things, although I do a decent amount.

Scott: You can more limit your audience on Facebook than you can on Twitter.

Stephen: Right. Right.

Scott: The whole world is on Twitter…

Stephen: Exactly.

Scott: …when you do something on Twitter. And I think there’s something too about the limited number of characters that I like about Twitter.

Stephen: Yeah, me too.

Scott: Yeah. So, tell me… Let’s sort of back up for a second. I don’t think I really introduced you at the beginning of this.

Stephen: That’s all right.

Scott: I know that… And I guess… I had forgotten about this. You actually left after law school, were in private practice for a period of time, and then you left private practice to go and clerk for a federal appellate judge before going back into the private practice. And I know that’s not really a traditional arc. What was it about clerking… Tell me about the story of going and clerking on an appellate court after you’ve been in practice for a bit.

Stephen: It’s a great question. And it certainly is not a traditional arc or certainly wasn’t then. I think it is far more common now, but back then it was virtually unheard of. So, the short story is, is that when I was getting ready to graduate from law school, my wife wanted to come back to Macon and so I’d applied with several Macon law firms, was interviewing and…but I also told, you know, my wife, “Look, Macon is a very…it’s a smaller town. It is a different type of town.” People from Georgia know that Macon is very…it’s just unusual in some ways. And I don’t mean that in a bad way, but I mean, it’s very… I’m trying to think of the word to describe Macon. But it’s very much where people wanna know that you’re from here and that if they’re hiring you that you care…that you wanna be in the community. You’re not just, you know, graduating from Mercer or graduating from wherever, or, you know, coming to Macon until you can get to Atlanta, you know, or something like that. And so, I was looking at Macon and I didn’t go to Mercer. And so I was at a bit of a disadvantage because I’d gone to law school out of state in Mississippi. But I did an interview with a Supreme Court justice with the Mississippi Supreme Court and he actually offered me a clerkship, and I had been in negotiations with the law firm that ultimately ended up being my first firm. And I called him and I said, “Listen, I think you guys are great a firm. My wife wants to come home. But I gotta tell this justice something on Monday and I’m not gonna not take this job unless I have something.” And so I think I called them all out late Friday and they called me back on Saturday afternoon and offered me the job in Macon.

So, I came back to Macon. And I was at that firm for about five…a little over five years, not quite five and a half, maybe five and change. And I never really gotten that out of my system. I really wanted to clerk. I had done pretty well in moot court and I had done well in my appellate classes and felt like that was an area that I really ultimately wanted to practice, if I could. But I just didn’t think I was gonna get there without a clerkship. And so I won’t go into all the events and how it happened, but eventually, my resume got out of the pile with Judge Manion in the Seventh Circuit Court of Appeals. He interviewed me in May of 2001, which was a little bit late, but he had kind of stalled his interviewing because a few of his clerks weren’t sure whether they were gonna leave and go work for the Bush Administration because the presidency had not been called. This was that year. That was in the wake of the 2000 election.

Scott: The year of the hanging chad and the pregnant chad.

Stephen: The year of the hanging chad. So, we were waiting to see how many vacancies he was going to have. And so, long story short, I went up there in May. I accepted it. Judge Manion is a little unusual in that he does not hire people out of law school. So, he wants experienced, more experienced law clerks. So, he might have been one of the few judges in the country that really saw my having been out for five years as an advantage. And so he hired me. I actually started 10 days before September 11. And so that was an interesting time to be a part of the federal government. And he also does this thing where he’ll sometimes ask people to stay on an extra year. He asked me to do that. And I just moved my world from Macon, Georgia to South Bend, Indiana. And so I did that. I did it for two years. It was an amazing time. I learned a tremendous amount from him. He’s an incredible judge, a great American.

I learned a lot from being on the court with judges, you know, like Judge Posner, Judge Easterbrook, Judge Diane Wood, Judge Rovner, Judge Flaum, Judge Cudahy. There were so many great judges and I got to know many of them, obviously, going back and forth to Chicago and just got to see some amazing cases and great lawyers, David Boies, Kenneth Starr, you know, you name it. I saw a lot of some of the very best advocates. So, that was like going back and getting an LLM in appellate advocacy for two years. And so it really made me a better lawyer. And I think I appreciated it more having been out for several years. And so I don’t know that I would recommend it to everybody because I was getting ready to make a partner. They would, you know, go five years and then go back and do a clerkship, but I don’t think it’s unreasonable, you know, to do something for two or three years, and then maybe go do a clerkship. I think in some ways you appreciate it more. And so it was an amazing experience. And quite frankly, I would not be the judge I am today if I hadn’t had that experience.

Scott: What do you think that did for you, that experience?

Stephen: I think it made me a better writer. I think it made me a better legal thinker in terms of really seeing the laws like patchwork, really kind of understanding, you know, having, you know, at that level, you get hit with so many different types of litigation issues, criminal and civil. And you really get to see law done at the very highest level, by really, really smart folks. I learned a lot about court administration from it. I think the Seventh Circuit is one of the best circuits in the country. The clerk of court at that time was phenomenal. So, getting to see some of that behind the scenes, how courts operate. A lot of what we’ve done at the Court of Appeals of Georgia is a direct result of my experience in the federal court system, including some other judges having similar experience in the federal court system of us reforming the Court of Appeals to make it look a lot more like how the 11th Circuit operates. So, I think I benefited greatly from it. It made me a better advocate too because I think it tempered and refined my advocacy in the sense that I started to care more about…less about finding law that supported my position and discovering what the law is, and then kind of filtering that through to an argument that I thought would be persuasive. But becoming more of someone who informs the court that this is what the law is, this is the landscape of the law, and this is how I win in that landscape.

Scott: Now, that almost seems counterintuitive because, you know, it seems like that’s what lawyers generally do is they find cases that help their position. When you got back in the trenches, because I know you came back to Macon and you practiced there for several years before you went to the Georgia Court of Appeals, what really was the difference? How did you advocate for a client in the context of here’s what the law actually is, particularly, if the law was not in favor of your client?

Stephen: I would write to the court in the way that I thought a clerk and judge would find helpful. And if the law was… If it was just flat-out against me, then I would just tell my partner, “Look, I mean, we need to settle this. We need to get out.” If there was as there often is confusion about what the law is or there was some tension in the law, I would acknowledge that tension upfront, and then just simply say, “Look, you’ve got some tension here, you’ve got this case saying this, this case saying this. This is why I think this line of jurisprudence is the better one, the more applicable one, and why it applies here.” And I would try to analogize as best I could to that. And if I could maybe even talk about how, you know, this line that I’m looking at or these two competing or three competing lines of jurisprudence, how this one is similar to a line of jurisprudence in a similar area of the law and makes… And so that’s why this one they ought to try to clean it up. So, when I first started turning in briefs to my senior partner, Tommy James, he looked at me and he said, “This doesn’t read like a brief. It reads like a judicial opinion.”

Scott: Which is a compliment.

Stephen: I said, “I know that.” I said, “I know this may be new for you. Let’s try it my way with…” I had these first two appeals. I was like, “Let’s try it my way with these first two appeals. And if I lose, then we can go back to your way, but let’s try it my way.” He’s like, “Sure.” So, I won my first two appeals. And then after that, he started to understand, you know, the approach. It’s still a form of advocacy, but I think it is a form of advocacy that is stronger because when you start seeing parts of your briefs lifted and put into opinions, you know you’re doing a really good job.

Scott: Well, I heard Justice Thomas speak at an event several years ago. And I was initially taken aback by his answer. And I forget exactly what the question was. It might have been, you know, when you’re looking at amicus briefs, like what do you find most helpful? Or it was something like that. And Clarence Thomas’s response was that he always will turn to the ACLU’s brief because he finds the ACLU’s brief to be helpful to him in deciding a case.

Stephen: Yeah. I mean, they are great writers.

Scott: So, when you came back from the Seventh Circuit, what type of practice were you doing when you came back to Macon? What was a day like?

Stephen: I always tell people… I think what I advertised as when we sent out a little card to the community when I announced I was going back, it was a complex litigation and appellate practice. And really, what it should have said is “weird law” because that’s what I did. I really… It’s like the old Life cereal commercial. “I don’t want to eat it, let Mikey eat it.” And that’s kind of how it was with me and things that came into the firm. Anything that came into the firm that folks just didn’t know anything about, they knew I would want it because I loved being challenged.

So, it might be I had, for example, where these counties were stripping the ad valorem tax-exempt status away from religious homes for the agent. And so I kind of became an expert in that. And I beat back several counties, won several appeals where these counties were trying to take away the tax-exempt status of these homes for the agent, religious homes for the agent. That was a really fascinating area of the law. I had another case that was a non-profit derivative action. And so I became immersed in derivative actions and really enjoyed that.

In fact, since I’ve been on the court, I’ve probably written more… If you look at… There aren’t that many derivative action opinions. I think I’ve written more than half of them now for the Court of Appeals. I mean, just things like that. I was involved in a dispute with the mayor of Macon about his appointments to the Housing Authority which was a really big political event. And there were some really interesting statutory construction issues and the history behind the revision of the statute over the years. I really got to delve deep into the, not only the text of the statute, but the etymology of certain words. And so that was fun as well. But those are the kinds of things I did. I didn’t really do much routine work. In fact, when I left James, Bates I wanna say I had eight cases that I was working on.

Scott: So, you had a very small caseload, but I’m assuming that those eight cases probably they were the equivalent of the amount of work you would have been doing had you had a huge caseload.

Stephen: Right. That’s exactly right. I mean, I was spending a lot of… I was dealing with Beth the company cases. I had some really big reinsurance cases too. We represented Georgia Farm Bureau. And I did a lot of the brief writing and appellate work for Georgia Farm Bureau in coordination with Duke Groover. And there’s some… Insurance, to me, has some really fascinating, you know, construction issues in terms of the language. But I did a lot of appellate practice and a lot of motions practice. I mean, a lot of what I did… And I do try cases. I mean, I’ve probably tried over the span of about my 14-year career minus two that I clerked, so about the 12 years that I was in private practice I probably tried, I wanna say, you know, at least six cases, which considering the kind of work I was doing, mainly for businesses, a lot of those go for years and years and settle. So, I wasn’t trying hundreds and hundreds of cases, but I really wasn’t doing the kind of work that lent itself to that, to having a bunch of jury trials. I was in court all the time arguing before judges. And that’s… I like that better than jury trials. I liked going before judge and arguing. Whether it was the probate court, or whether it was the Supreme Court of Georgia, you know, I liked going and arguing before judges.

Scott: Were you teaming up with trial counsel and you had that role in the case as part of a team?

Stephen: Yes.

Scott: Okay. So, how did that just practically work out?

Stephen: I think sometimes it would be that I would be brought in after the case had concluded. But toward the end, it seemed like more and more I would actually go to hearings and trials where I would sit there and kind of give advice or be part of… Also I would be brought in at the beginning when we were talking kind of global litigation, what I call global litigation strategy. If it’s a big case and, you know, we go in the room and you’ve got the big board and you’re kind of diagramming everything out and, you know, here’s what they’re probably gonna do. Like, that stuff I love and I miss that. Getting a really big, big civil case, multi-million-dollar case and you’re like, “Okay. Here’s the players. Here are the lawyers. Here’s probably what they’re gonna try to do. Here’s the kind of evidence. Here’s what we’re gonna need to get in at the trial level.” And we knew that some of those cases they were gonna go up on appeal, like we knew regardless of who won that we were dealing with a case if it was gonna go up on appeal. So, you just went on and planned for it even if it… It might settle, but you have to… In big cases I think you have to go into them with the idea that it’s ultimately gonna be appeal regardless of who wins.

Scott: And so many lawyers wait until it’s time to do the appeal to think about the appeal.

Stephen: That’s a bad idea.

Scott: Because I get handed records and transcripts in my day to day life that, you know, I wish I had been involved in the case sooner than I was.

Stephen: You just start weeping while you’re reading it. You’re like…

Scott: It’s the worst.

Stephen: Yeah.

Scott: So, for a lawyer or for law firms that want to, you know, think big picture, think about the bigger picture, the potential appellate implications for a case, what is the value for having someone like, you know, in the role that you were in? Looking at it from the perspective of the appellate judge, talk a little bit about how many cases you see where there is there’s a vehicle problem or there are some waiver issue that kind of comes up.

Stephen: It happens all the time. And I think there’s great value. I mean, if you are… Let’s say you are a plaintiff’s lawyer and you’ve got a personal injury case, and it is a big case. A lot of times if you are…you’re a good solid PI lawyer, but even so, you might say, “You know what? This is a really big, like, possibly life-changing case. So, I think I’m gonna call…I mean, name all of the… I mean, I could go and name tons, Robin Clark. I’m gonna call Adam Malone and I’m gonna call all these, you know, big…Carl Reynolds. I’ll call all these great plaintiffs’ lawyers, Darren Penn, all those guys, and say, “I’m gonna bring them in too to help me out because this is a big, big case. And I might have to hire experts and I need somebody to help me, you know, kind of manage the litigation. I need some… I need kind of the apparatus of a firm that handles those really big…” Well, if you’re gonna do that and you’re gonna probably split your contingency with someone like that by bringing them in, doesn’t it make sense to also think about either hiring a firm that has somebody in-house that handles appellate work or picking someone separately and bringing them on that team as well? Because if you don’t spend the time at trial, preserving the things that need to be preserved, there’s a good chance that verdict is…if you get it, it can be reversed. And so let’s say, for example, you’re on a team, Scott, they brought in you because you do criminal and civil work and they bring you in, and you’re there at trial and you see those plaintiffs’ lawyers starting to get a little bit aggressive with jury charges, what are you gonna tell them?

Scott: Well, first of all, you’re gonna be in that position where that’s the kind of thing you’re thinking about. And you’re gonna say to the trial team, “Look, let’s research this issue because the judge may be listening to them because they’re talking the loudest or they’re talking the most. And let’s draft a motion in limine or let’s draft a motion that sort of says, “Judge, we object to this jury charge. We don’t think that this is proper. Here’s some case law as to why. And we think you’re probably gonna get reversed if you charge this way.”

Stephen: Right. And if your team is getting too aggressive, you might say to them, “Hey, guys…”

Scott: Let’s pull back.

Stephen: Do you wanna know the last five verdicts of the Court of Appeals that have been reversed, have been based on jury charges, overly aggressive jury… I mean, that’s the problem. I mean, that’s the thing an appellate lawyer knows because an appellate lawyer, you know, even a very good PI lawyer, they may only be involved in a handful of appeals over the years, but someone like you or someone like Mike Kerry or Darren Summerville, or whoever else that is doing this kind of work, you guys are reading these things and you’re reading almost everything that comes out of our court, God bless you, and you start seeing patterns. And not everybody is gonna see those patterns. And so you’re the one that can stop in the middle of the trial and say, “Whoa, guys,” or even before then, “Hey, no. When you’re strategizing, we can’t do that because that’s gonna leave us vulnerable and getting appeal. We’ve got to be careful about how we… So, we need to do this instead.” Or, “Let’s not fight every battle. It doesn’t matter. The evidence is in our favor. Let’s don’t get aggressive on a jury charge when we’ve got the evidence. We know we can get a verdict with this evidence. Jury charges are of limited value. Don’t go to the mattresses on something that we can get reversed on.” I mean, those are the kinds of things we’re having an appellate lawyer in on that big, big case. Now, can you justify that on a $25,000 case? No, you can’t. But in the big cases, absolutely. You should.

Scott: Well, and just because the judge is with you and will do the thing that you’re asking the judge to do doesn’t mean you should do it.

Stephen: That’s exactly right. As the words flew by.

Scott: And having a lawyer there that can advise you that way is pretty important. Even if the lead counsel on the case knows the law really well, probably, that lawyer is thinking about 10 other things that aren’t the appeal.

Stephen: The other thing that appellate lawyers, I think, do nicely, is that we are instinctively or certainly trained after many years to be dispassionate. Now, every lawyer should be dispassionate and not get emotionally invested in cases, but you and I both know that it’s very hard for people that have tried cases to sometimes be objective about what happened below. And I think having an appellate lawyer there during trial to kind of throw cold water on somebody and say, “Hey, I get that you’re upset, but we’re not doing our client any favor by doing what you want or saying what you wanna say here or doing what you wanna do here.” I think that’s just the way appellate lawyers are built. And so I think it’s good to have somebody like that around.

Scott: I think too, like, you know, even the cases that don’t go to trial, I read my share of summary judgment cases where there are, you know, summary judgment cases with written opinions. And, you know, just like I find myself looking at trial transcripts and I’m just miserable cause I just see things that were waived or motions that weren’t filed that could have made a difference. Sometimes when I’m reading summary judgment opinions and I’ve been involved, a lawyer brought me in a couple of years ago to talk about late stage of an appeal to help with a motion for reconsideration of an adverse summary judgment. I’ve seen a lot of summary judgment opinions, maybe opportunities that were missed where maybe things could have been said in depositions. I mean, there might have been evidence of a factual dispute that could have been injected into the record that maybe they weren’t there.

Stephen: I agree. I agree. And I think having an appellate lawyer, once again, I think, depending on the case and whether you can bring someone in or whether the case is worth having somebody like that, it helps to have someone who has a thorough knowledge of the law. And you’ve got plaintiffs’ lawyers who specialize in premises liability cases, right? And so they know, they read every premises liability case that comes out of the Court of Appeals and Supreme Court of Georgia. And the truth is, you know, not every lawyer is gonna have the time to do that, even if they handle those types of cases. So, having somebody that can say at the outset of litigation, “This is what we need to do. This is what we need to say. This is the kind of discovery. Here’s the sort of the way we need to craft the affidavit from our client about what happened at the grocery store. Here’s the way… Here are the things that trip people up in these cases and where the Court of Appeals ends up reversing in favor of, you know, the corporate defendant, Kroger, you know, Home Depot, whatever.” So, I think it is important.

And like a lot of those groceries slip and fall cases, some of those involve millions of dollars. And so I just think it makes sense, at the very least, to consult, to hire someone who does specialize in appellate law, especially in that particular area, and pay them a few hours at the outset of the case and maybe say, “Okay. Here’s what happened. What sort of things do I need to get my client?” I need to make sure that I have them, you know, not manufacturing, obviously, what they say, but, I mean, here are the important things. Don’t leave out these important things when they tell you their story. These are the kinds of things that are gonna help you survive summary judgment, so don’t leave that out of your client’s narrative. If they tell you what happened, it’s important to have all this factual information in their affidavit. It’s important for them, you know, when they’re in their deposition, to talk about what happened and to talk about these things. Those are the kinds of things you can tell people upfront, and then they can bring you in on the backend. If there is a summary judgment ran, they need help with the appeal or they need… Once you look at the brief, there’s all sorts of things you can do with someone. And I just think it makes sense in those cases you invest. Right? I mean, that’s what you’re doing. You’re investing in those cases, you take them on contingency, and I just think it makes some sense to pay some money upfront to talk to somebody whose job it is to know that area of the law.

Scott: Well, if you open a slip and fall case, you better be prepared for the summary judgment motion because there will be a summary judgment motion on a slip and fall.

Stephen: Yeah, it’s coming.

Scott: And then it’ll probably be hard to survive if you’re gonna open that case up because I think that seems like a very tricky, hard area of the law from the plaintiff’s perspective.

Stephen: And there’s all sorts of like… I mean, there’s all sorts of, like, sub-issues like the distraction doctrine. I had a case involving that in a Home Depot where I wrote a dissent that it should go to a trial. Does that person that… Do they know about the distraction doctrine? Maybe they do. Maybe they don’t. But those are the kinds of things that you would know. You would say to them, “Is there anything we can talk about? Is there any of you might talk to your client when they came into the grocery store that could have caused them not to see? Or did they tell them? Did they direct them to, like, come this way? And that’s the reason…” I mean, there’s all sorts of things that you can do to enquire that by knowing what facts are important, the surviving summary judgment, you can ask that person to tell you things and they may not even remember that unless somebody actually asked the question and triggers that part of their memory.

Scott: And it seems like, you know, you mentioned it earlier too in the context of reinsurance cases. But insurance coverage issues are about as complex as it gets in the law.

Stephen: Yeah.

Scott: And that’s kind of what most of these things turn on is the amount of coverage and trying to figure out a theory of coverage can be kind of life or death to these cases as well.

Stephen: Absolutely.

Scott: Well, so, tell me a little bit about what’s ahead for the Court of Appeals as I’m assuming… I know that the emergency order is gonna be modified. I think grand juries are about to start back up. But when do you think the court will start back hearing oral arguments live?

Stephen: It’s a great question. I don’t know. I know that we are doing Zoom arguments. I don’t if this is public, but I don’t think anybody would care about me sharing it. I know that we are doing Zoom arguments through January. At some point in the next month or so I think we’re gonna determine, you know, whether or not we should start doing in-person arguments again. I’m only speaking for myself right now. The more I think about it and the way our courtroom is constructed, I think what I would like to do is ask the parties whether, you know, if we grant or like say we’ve got oral arguments coming up in February, I think what I would like to do is to have the clerk call the parties and say, “Are you interested in an in-person argument?” And if both sides say, yes, there’s enough room in that courtroom to socially distance. The judges and the parties. So, I think it’s just a question of, you know, the comfort level that folks have. I would real… I think it’s important to resume them at some point just symbolically. I always go. I missed one. There was one argument where none of us were in the courtroom, and that was early on during the pandemic. But since then, that didn’t sit well with me and I didn’t feel well that day and we were just at the beginning of it. But since then, I’ve showed up and been in the courtroom for every oral argument. And I think it’s important to do that to be there symbolically, because technically I think people can still come. I don’t think people are coming because, obviously, for obvious reasons, but there’s something to me important about me being in that courtroom and presiding from the actual courtroom. So, I hope we’re gonna resume it. But I think we also… Just my opinion. I think we ought to respect if there’s a lawyer that just isn’t comfortable or is high risk and wants to argue it, I think we ought to make those accommodations.

Scott: I’ve been to court some, and, you know, for motions or for oral argument, I don’t think it’s as dangerous as it would be to summon jurors or witnesses or…

Stephen: Right.

Scott: That kind of thing. So, I mean, I think over time, it probably could work depending upon the lawyers and the judges’ level of comfort.

Stephen: Right. That’s just me. We’re gonna have that debate. But first and foremost, for me, is gonna be the safety of everybody. I mean, that matters more than my preference for in-person arguments.

Scott: Well, Judge, I really appreciate you taking the time to be on my fledgling podcast here. I really appreciate it.

Stephen: Listen, I’m happy to do it. This is you… You’re my co-teacher for Georgia Appellate Practice at Mercer. We didn’t even talk about that, but you and I have a good time with, you know, teaching those fine students at Mercer. And I couldn’t do that class without you.

Scott: I appreciate that. And I really love the guests that we have come in. I mean, I think every time we teach that I’m as much a student in that class as I am one of the teachers in that class and it’s a great experience for the kids, for sure.

Stephen: Absolutely. I’m looking forward to it this spring.

Scott: Is there anything else that I haven’t asked you about that you’d like to tell the listeners?

Stephen: I don’t think so. I think that’s about it. I’ve enjoyed being on your show. And I know it’s gonna do great. And I look forward to coming back some other time.

Scott: Well, thank you so much. I really, really appreciate it.

Stephen: Thanks, Scott.

Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com and please rate, review, and subscribe to this show wherever you get your audio content.