Episode 113 - "Dragging Hostages" - Star Trial Lawyer Chris Arledge on How He Cross-Examines

Unscripted Direct is brought to you by Walkup Melodia, Kelly, and Schoenberger, based in San Francisco, but with cases all over the country, Walkup is one of the most respected plaintiffs' personal injury and wrongful death law firms. The attorneys at Walkup are passed from about trying cases, and some of our cases have come from our listeners. If someone reaches out to you with the case, we're happy to see how we can help out. Great job, Spencer. Thank you. We thank Walkup for supporting this podcast and our trial advocacy community. Welcome to Unscripted Direct. I'm Spencer Paul. You can Berkeley Law. I'm Justin Bernstein, UCLA. This week we have results from all 10 A.A.J. regions, or a portcard for A.A.J. stack, including case-balanced data from Hunter vs. Huffins, and an all-time lesson on cross-examination from superstar trial lawyer, Christopher Arlich. But first. Yeah, actually, but first, Justin, this episode is weird so far, actually, because I can hear you like normally. What's up? If you're referring to microphone gate, yes, I did have some trouble with my mic last week. Here's what happened. Usually we record our episodes from home, but sometimes they record from my office on campus, and I have to schlep the microphone back and forth while I was tired of the schlepping. So I bought a microphone to be delivered to campus, and I used it, turns out it's terrible. And you knew who I blamed for, hold on, before I even ask you who to blame, why are you laughing about this? No, no, keep going. Keep going. Keep going. Okay. Who do you blame for this? For this setup that you're trying to create here, or for your microphone failure, because the setup is very clever, I imagine you perhaps blame me instead of your choice by that microphone, your choice to not use your regular microphone, your choice to not just use your computer. Am I right? Is what I'm. You're very close. I don't perhaps blame you. I definitely fully 100% blame you, because every week it's, oh, you got to wear headphones Justin. That way you can monitor your partner. Well, I have a partner, and his name is Spencer. He let me down. He let me record sounding like I was stuck in a cave. Two things. You wear your headphones monitor yourself, and nice headphones Justin, I'm glad you're wearing them today. Thank you. Your audio sounds great. I have no idea how mine sounds, because, you know, my partner won't take responsibility. No, you won't. You know, there are other people who could have noticed, Adam, Dave Shott, but, you know, I guess it shows you can't count on Nailay. Tim Adams, Brandon Draper, but, you know, we all know what happens in your life and Brandon Draper. Are we withdrawing? We're endorsement, too. No, no. Tim's above it. I'm blaming Brandon. And then, you know, Katie Powers and Sarah Williams, not cool, ladies. You heard the bad audio, and, you know, I'm not blaming you fully, obviously Spencer takes the blame here. You know, it's like question two in the verdict form, how do you apportion blame among all the people to whom you said yes, they were negligent. The answer is Spencer Palky, 100%. The funny thing is that we even had Sam on just to make sure Justin was doing this right here beforehand. And I wanted to record that because I thought it would be funny, but, you know, you want to focus on it now during the show, but we had some gold with Sam. And I didn't want to record that. It's a shame. Well, no, we had Sam on to make sure you were doing it right. Yeah, I was wondering you correctly, right? Correct. Correct. Correct. Yeah, you're right, right? Yeah. Good job. The high road is less high than it was last week, actually, altitude is declining. It's appropriate. Okay, let's teach him real lessons here, Justin. You have some eats news, I believe. Yes, for those who don't know, eats is the annual summer conference created by Bobby Flowers and hosted by Stetson Law that brings together leaders in the advocacy community. For the last few years, I've been on the eats planning committee. Yeah, Justin, what's eats stand for again? It's not an acronym. It's just eats. Oh, really? That's a fun. It's not an acronym. I should have asked the question. Is it an acronym? No. It just means eats. The idea is like you come together. You know, A.J. is always talking about breaking bread. Well, that's the idea. As you come together, you eat something together and you become closer as a community. Oh, it's like Naila, which is also not an acronym. Not an acronym. Naila just means Naila. The eats got it. Okay. Yeah. All right. So you've been on the eats planning committee for a few years and go on. This year, I suggested a new concept for the eats curriculum, a session called How I Teach. The idea is to bring together five or six outstanding educators in our community and see how they actually teach a particular topic in the classroom. That's a great idea because the eats, educating advocates and teaching students, we don't usually do this. We don't usually talk about how we teach. It is cool that it works out that those letters also spill eats. That was a step from what they've done before. Well, the speakers won't just be talking about how they teach. They'll actually be teaching. So we're going to get a 10 minute window into the classrooms of some really excellent teachers. Okay. I like that. Who's going to be doing this? Who's going to be doing the teaching? I'm so glad you asked. And that's exactly why I wanted to bring this up on this episode. Liz Bowles was kind enough to let me run this year's panel. I'm going to be the moderator. And I'm asking the community, our listeners, who do you want to see teach? What do you want them to teach? Do you want to see Jules Epstein teach rule four or four B? Do you want to see Katie Powers teach witness control? Do you want to see Kate Donnelly teach how to use exhibits effectively? Let me know. I'll try to make it happen. How should they let you know carrier pigeon knock on your door or something in between those two? Those are both fine. For those who don't have pigeon access, you're welcome to email me or you can fill out a survey. I'll include a separate link in the show notes and I'll send out an email full of service about this. I give you a hard time. This sounds like a great panel and a great idea. I'm glad you're doing it. I'm really, I'm super excited about it and I was really grateful that Liz said I could just sort of take the reins on this. I think often we do a great job of eating about discussing topics, but I think that we can even learn from each other even more if we got to see what what people are like in the classroom. I'm excited to learn from people who are really skilled at this. And I think sometimes you see sides of people that you didn't see before. I mean, for example, I've known you for a while. We've worked together a bunch, we've worked together on actual cases together, but I'd never seen you teach until we went and taught a lot from together and I was like, wow, he's amazing. And I wasn't surprised that you're really good, but it was still really cool to see how exactly you taught certain skills. I've stolen some of your ideas for witness control and some of your concepts for jury selection and use it in my curriculum. Well, they're all my ideas, by the way, so you have stolen them from me just so you know. Okay, so the reason Spencer makes a joke about them being his ideas is that when he does a presentation, it's almost like he's footnoting it with a bibliography as he goes, he'll like say a sentence and then say, and I got that idea from this layer, and I got that idea from this layer. It's like there's citations in every sentence. No one gives more credit than Spencer. It is really fun to get to teach with you and it's fun to get to see each other teach. So I'm really glad that everybody's doing this. I'm curious, is it a nomination process too? I mean, I'm certainly people can volunteer themselves. Can you nominate people as well? That's exactly what I'm hoping people do is to say, I really want to see this person teach and this is what I want them to teach. Okay. Nominations will be open soon. Immediately. Immediately. Immediately, actually, it's time for the break. We have results from AHA's 2025 stack regionals. Stack is an acronym, the Student Trial Advocacy Competition, but AHA isn't. Weirdly. Very, very weirdly. Yes. All right. Going to the DC District of Columbia region, we've got American and Maryland. From the NY region, that's New York, Brooklyn and NYU. So in just the the tiniest bit west, Philly region, we have Syracuse and Akron. Going to Raleigh, Campbell and Florida International. That's south, a little bit south, Philly there. The virtual Eastern region, which is a good difficult to say to you, Grapp. The Florida Eastern Raleigh. War round. The winners are Mercer and Hofstra. I think it's in all directions, right? If it's virtue, it's everywhere. Yeah. We move to the Midwest, the Chicago region. The bids go to Northwestern and Cumberland, congratulations. Going down south to Houston, our regional winners there were Baylor and Texas. In Denver, South Texas and a little school called UC Berkeley, Go Bears, congratulations. Now in the virtual mountain region, again, in all directions, but starting more often in the mountain time zone, a school known as the University of California Los Angeles. And again, UCLA, congratulations, Justin. We finish up in your neck of the woods. to help host this region. San Francisco. Congratulations to the winners there. You see San Francisco and Loyola Los Angeles. Congratulations, folks. All right, Dustin. So those are the results in the courtroom. I want to do a little report card where I kill a little meta analysis and talk about how the competition itself went. Great. So if it's a report card you're asking for, does that mean you're going to be giving out letter grades? Well, I'll pull up Berkeley's usual scoring system, which is you get two smiley faces for a really excellent job. You get a banana for a good job and everybody else gets a brand muffin. He's only half kidding. At Berkeley they do not give grades to students at their law school. Isn't it just honors, high honors, and pass? It's high honors, honors, and pass. Justin, yes. What did I say? You start in the middle, honors, high honors, and pass. I wouldn't want to confuse anybody here with the grading system. I'm surprised you'd start at the top. That doesn't sound as egalitarian as Berkeley usually is. Most of the grades are peas. So I'm going to go up right there. I see. Okay. All right. So we're using the Berkeley grade system. We'll start with logistics. What do you think? You know, straight up logistics. I mean, I was quite, I mean, our region ran quite well. And I didn't hear of any major issues. You'd have your finger on the pulse better there. But I think at least, at least the top H and maybe it slipped into a double H. I don't know. I thought it was good. I'm going to go high honors. I didn't hear about any major hiccups in terms of how things were running nationwide. It seems like everything went smoothly. And I want to give shout out to not just AJ, but Naylay for their part in running things, all 10 regional hosts. And as I understand it, the A.J.'s law school's committee was a big help in making this happen. So very well done. I'm going to go double H high honors. You know, little, you're going to get embarrassed here a little bit, but by the way, what that scoring system, I know it's been in use for a while, but it really shines in the moment when you're hosting this stuff because that was not just like a non-issue. It just, it was just completely smooth, which helps out big time to get rounds done and the next round launched on time. So I appreciate it. Yeah. Okay. High honors for the scoring system. We'll take it. All right. The next category in the report card judges. And this is something that was very much endowed heading into the weekend. Spencer, do you want to tell us why we were so concerned about the judge situation? Yes, I do, because if you could rewind in time 10 or 14 days ago and look at the sign-up sheets, you would be mortified, horrified, scared. I mean, there were, I was sending an email two weeks ago saying we were not at 25% in the San Francisco region for having three judges per room. It was terrifying. That's why. And I'm pleased to report that the hard work of so many people in the last two weeks to round up judges was extraordinarily successful. I went back and looked at the score sheets for all of the regions, unbelievable. 93% of trials across the country had three judge panels, 100% of the playoff rounds had at least three judge panels, many of them more. And if you take out the region with the lowest number of judges, 98% of trials had three judge panels. That is so shocking to me. Just given over two weeks ago and just how challenging it is to recruit judges, it was in all hands on deck situation and all the hands got on deck. I am so pleased to hear those numbers. I agree with you. It is hard to overstate just how crazy a turn around this was because if you looked up at the judge numbers were just 10 days ago or should say 10 days before the tournament. Only two of the 10 regions had three judge panels for every round. And that is assuming everybody shows which we know almost never happens. There is almost always some judge attrition. And so to go from dire, I mean I was afraid that we were going to have one judge panel in some regions. To go from absolutely dire to really extraordinary, not even grading on a curve. Really impressive. Completely agree. Now I have been curious about this and we talked about it a little bit actually probably last episode. Do you know how this compares to TYLA, Texas Young Lawyers Association to their NTC National Trial Competition? Yes. So I compared the judge numbers from this year's AJ regionals, this year's Tyler regionals. And I was surprised how much better AJ did at judge recruitment. Now, like I said last week, some of this is not an apples to apples comparison because AJ is involved in the judge recruitment. TYLA leads it to the regional host. So without drawing any judgements about why or how, I'll just say these are the numbers. Like I said, in AJ, 93% had three judge panels in NTC regionals this year, 82% had three judge panels. Now, the reason I use percentages is that obviously Tyler has a lot more trials. Right. And so there's couldn't be more ghost ballots anyway. But even if you just use percentages, it's way better in AJ. Now, I said in AJ, if you take out the region with the lowest, with the lowest judge count, it goes up to 98%. If you do that for Tyler, it's still in the 80s. In fact, you'd have to remove a full third of the regions from Tyler to be able to get to the AJ number. In other words, way better recruitment. Now, in fairness to Tyler, they are hosting twice as many teams. So that's going to require a lot more judges. But still, I mean, I think both of them did a great job of regionals this year. But for those who are worried about the AJ judging, whether they could make this happen in person. From what I've heard, this is probably the most successful in person year that AJ's had in terms of judge recruitment. For sure. For sure. For in-person competition. Yeah. Yeah. It's interesting, though, because I don't know how easily we could go back and look at prior open in-person competitions in terms of judge recruitment. But if this was a typical Tyler year, and I have no idea if it wasn't, then what we might have just seen today, AJ, could have been a historically good performance at an open national competition at the regional level in terms of judge recruitment. Which would be particularly stunning given how we felt two weeks ago. So I'm not only going to give the competition high honors in the judges category, but Amger. Amger, Kelly Awards. Yeah. Yeah. Wow. I totally agree. I totally agree. And I'm so impressed. Okay. Next up, I'm going to report card here is going to be the case itself. Yes. Yes. What did you think about the case being one of the people who helped write it? Well, helped write it as a strong is a strong description of what I did. I just gave some things. Well, I was using it in the sense of like, you know, Spencer helps do this podcast. Spencer helps write the case. You know, that kind of that kind of credit edge this morning. I thought it was completely unique and in every respect. And it was really a trendsetter this season in particular in terms of its topic matter. I thought it was one of the best trucking accident cases this month. No, the case is awesome. It was really impressed with the work that you did, Joe Droperson. I know that Robert little took by far the the laboring or on this effort, this effort. But the case is great. It was fun. It was challenging. We saw different theories in every round, particularly on the plaintiff side. And I think it was, I think for a regional's case, the ideal case is accessible to all teams, but complex enough that the top teams can differentiate themselves and show different ways of trying it. And I think this case succeeded. Yeah, Robert just cranked it out. It was unbelievable. He's really good at that. But let's grade him a little more harshly here. Let's shine the light. What do the case balance numbers look like? 51% for the plaintiff. 49% for the defense. Very impressive. Wow. I mean, if if 5149 still passes his balance, I don't know. Basically 50 50. No, no, no, 50 50 is 50 50. This was a remarkable 51 49. I, you know, we don't want to exaggerate here. God, no. But it was also super balanced. The playoff rounds. It was 49 51 in the playoff rounds. Wow. 51 49 than 49 51. Exactly. Wow. That is that that, you know what, that's double H territory right there. What do you do? High honors for Huffins versus Hunter, which is also HH. I know. I think Robert was working it that way. The biggest issue I have with the case is how do you pronounce the defendant's name? Huff Hines, Huffins. I don't know. I was a Huff Hines person, but that's kind of weird. You do have to kind of like Huff and Puff to say that it takes like two breaths, Huff Hines. We were saying Huff Hines, and then I heard another team say Huffins, and I've got to admit I liked it better. Yeah, it rolls off the tongue sort of a little bit more. Speaking of pronunciation, we did have one opponent this week say he introduced himself as Casey Snotes, but he said that it was the N was silent. And so he said it's so it's like boats, which, which is really funny for two reasons. One is I don't think there's any way that Snotes is going to have a silent end right there, right? This isn't like the word column, you know, or him like that. and is clearly going to be pronounced. But the other thing is to the extent that you're giving somebody a pronunciation guide to understand your name. Soats like boats doesn't really help because snouts is also like boats. Damn. Yeah. But nonetheless, nonetheless, break case despite the name. That's hilarious. Somebody would do that. Well, I wasn't going to mention your student by name. Yeah. Well, it's, it was weird when you're hanging out in our region, I thought. But you know, Justin's everywhere all the time. I understand. I heard the kids say it. I'm like, Spencer's coaching again. All right. We've been given out some really high grades. Anything on the report card that indicates that they can do better, anything that you think can be improving, gripes, Spencer. Yeah. I do have a concern. I don't know if I mean, maybe it's a gripe. I don't know. But it has long been very clearly the rule at age as it should be that you can't say as a witness. I wasn't asked that in the deposition. I completely agree that that should be a rock solid rule, at least for this competition. But the way it is enforced is right now I am concerned brutal. So the rule is, under no circumstances, our witness is permitted to testify that they were not asked a question in their deposition. That's fine. All good. Then any testimony to this effect alleged by an opponent's objection and verified by at least one scoring judge will result in an automatic forfeit of all three ballots in that round. In our region, we had that protest arise twice. One time by all accounts, everybody, the judges, frankly, even the coaches, it was a nominal issue that had really no impact on anything at all against the rules. Yes, absolutely. Should it be penalized for sure? Did it result in the forfeiture of all three ballots? I think that is that rule. I suspect the AHA will revisit that because that is wildly harsh. So I would throw that in my unhappiness, category. I agree. I appreciate very much to the fact that AHA is taking a strong stance on that, because this competition with the negative inference rule only works if you're going to say witnesses are prohibited from saying I wasn't asked that in my deposition. It just destroys the trial if a witness doesn't have to admit that when that's a rule. However, to say that that one statement makes the whole round forfeited, it's problematic because you can imagine the other team doing all sorts of bad things and it seems strange to sink all that out of saying that is instantly disqualifying and other things are just worth points. I do think it should be an automatic penalty like no discretion whatsoever and I'm comfortable with a significant penalty, but it seems strange that that is the only thing that's disqualified. You could misstate the stipulations of the judge. You could use a demonstrator that's banned. You could say something offensive. None of those things are automatic disqualifiers. It's odd that this would be. So I don't want to be taken wrong here. I think it's great that it's explicitly laid out in the rules and I don't have a ton of sympathy for teams that violated. It's literally written in red in the real book. We all know that we hate red on the show. But if something's going to be written in Stanford colors, it's something you don't want to do. He is. Got the sharp tongue this morning, folks. Yes. I think we I think we I think we agree anything else. I thought there were a lot of protests this year and I asked AJ they said there were 15 protests. I don't know the exact number from Tyler, but I know it was way less than that despite having literally twice as many trials. Um, there were a lot of point deductions this year. I think close to 10. I don't know that there were any a Tyler, if they were, they're very, very few. Um, why do you think that is? Why do you think there were so many more protests at AJ than TYLA? We had two formal ones in our region and we were there was going to be a third one, which got withdrawn. Um, and I think that they're in lies at least anecdotal evidence. I mean, you know, this is long been known that, you know, schools tend to send their stronger, more experienced students and therefore coaches to NTC, which means that you aren't going to have those folks at AJ and the withdrawn protest we had. And I was glad it was withdrawn was, you know, a complaint about how something was characterized in a closing argument. And I was like, that does not remotely sound as a protest at all. And so I don't know if it's an experience thing. You just don't have the same folks that you have coaching NTC, uh, that you have coaching AJ and therefore different levels of experience about knowing what you should protest from a technical perspective and what you should protest from a morals perspective. So that's my, that's what I would surmise you. I agree with you. I'll add two other points. It's not just I think that you're seeing people bring protests that lack merit because they may be less experienced. I also think that you're more likely to see people breaking the rules if they are less experienced advocates or less experienced coaches. I think the bigger explanation, at least for, for my view, is the nature of the competition. Tyler provides the witnesses to each team and AJ. It's your own witnesses. So it's far easier to invent facts when the witness is your teammate and you can control what they're going to say. And to the extent the witnesses are misbehaving on cross, particularly refusing to concede that, you know, a fact isn't there or avoiding saying I wasn't asked that, you're much more likely to protest if that witness belongs to the opposing team. It's frustrating when it happens to Tyler, but it's unlikely you're going to attribute bad witness behavior to the team that that you're facing. Fair points. And we should return to the Tyler witness question at some point in the future. Okay. So overall, I think great grades for AJ regionals 2025. To the extent that we were looking for a referendum on whether or not they could excel in person or exist in person, I think it's an obvious yes. Totally. I completely agree. And I got the great pleasure of spending the weekend with Jen Rafter, who was running our region and, of course, Al from DC. And the amount of work that she has done, and I know, of course, obviously Catherine Schwaka and Trish Cooley have done. And we've said it before, but man, watching it in person. And just to see like, you know, they don't have like, I mean, this is this is their job and they are very passionate about it. And just impress me so much that like we're silly people who love this, you know, we're just like addicted to trial advocacy for our own sake. And they join in with that completely. And you know, it's like they just bent over backwards to make this possible. And it was awesome to watch and we have a lot to be thankful for with them. So thank you all. Of course, our AJ regional discussion would be incomplete without hearing the results of the predictions contest. And we had a lot writing on it, not just Katie and Sarah, but you and I had a little side bet going. We sure did. I am very curious to see how it shakes out. I'm also curious to see how it shook out. Here's Katie and Sarah. We welcome back come Berlin, Sarah Williams and Mercer's Katie powers. Welcome back folks. Thanks for having us. Thank you for having us back. So first of all, congratulations to both of you. Katie, your Mercer team won a bid in one of the virtual regions. Sarah, your Cumberland team won a bid in Chicago in person. Very cool. Thank you. Congratulations to you all as well. Congratulations. Yeah. Yeah. Thank you. And Katie, last week. I'm for reading teams. Just is correcting the record silently, but I'll do it for him. The record shall reflect at five. It's five. It's five. We had a given my opportunity to flex and what the humble brag is not so humble. We're learning. I want to teach that. It is such a great influence on you. Katie, that's the more podcast at a time. You know, I just thought we should be accurate. Katie, last week you told us you want to transportation. Trouble is your award and then promptly lost the transportation game on the show. Has your award been revoked by the organization that gave it to you? No, I shockingly they're not viewers or listeners of this podcast. That was really some process. I think that's wrong. Yeah. That's got to be wrong. We don't actually have any viewers. Katie. Right. Yeah. But you know, it's fine. Now, Sarah, I know last week you showed up with Just Vibes and you were looking at the list of teams for the first time, but I have a source that tells me that during the weekend, you were constantly trying to figure out how your teams were doing. The ones that you draft it. Is that true? I was. I was very stressed about it because I was like, I don't want to lose like that. You know what I mean? Like, I'm okay with losing, but I want to make sure I want to make sure folks are doing all right. So it sounds like you put more effort into trying to figure out if you'd won than actually trying to win. I put a lot of effort into the vibes that I create, Justin. I'm a little offended by that. I feel that being by be is an effort like it's this doesn't just happen. I think you've not had all answered my question, but that's fine. I tried to access the spreadsheet this morning because my muscles already feel tight, awaiting a massage, and much like the rest of your information, [BLANK_AUDIO] it until you decide to don't let out. I can tell you exactly what he loves to say. Yeah, I locked you out of the weekend. I said he was like highlighting. And so because I was trying to figure it out, talking to a J folks. And then I opened mistakenly. I was trying to look at our scores. And I opened the wrong spreadsheet. And I was like, oh, oh. Yeah, I figured, you know, just like a classic competition. We'll wait till the award ceremony announcement. We know that Sarah tried to track her results. Katie, were you tracking the results to see who was winning? I was tracking some from what I could remember. But much like my effort in picking. I didn't go back and re-listen to figure out where we were. Have a couple of high hopes. We'll see. I'm curious, though, for both of you. You were both curious about how, if you'd won, even going so far as I try to break into some of Justin's high level security. Spreadsheets. What did you think? Katie, did you think you would won? And Sarah, did you think you would won? I mean, do we have two folks who think they have won? Where do we stand, Katie? I mean, I think I won. Because I think a couple of my sleepers came through. And said that's my gut. But much like I have been surprised sometimes. My spouse calls it the kiss of death when I think we've won around. Because it normally turns out the other way. So this maybe a kiss of death, a podcast for predictions. Got it, Sarah. Yeah, the last time my access to spreadsheet, we were tied. And so I don't know. I don't know. What's up with those vibes right there? Yeah. Well, after your predictions, Spencer said he wanted to bet on Sarah. And so that meant that I was betting on Katie. Katie. If I'm in your blazer on my side, okay, I'm sorry, I'm sorry. That's true. Yeah, that's true. That's true. It's true. That's true. He had to wear UCLA gear at the next trial. Obviously public event. And if he won, I do wear headphones while recording the rest of the season. So. Unfortunately. I'm putting on visual reveal how perfect for a podcast. I'm putting on headphones. I feel like there's a story there. What's what's the deal with the headphones, Spencer? And some pretty nice. They're not that nice, but some pretty nice headphones sometime ago. And he wears them intermittently. And to my use to frustrate me now, it just makes me laugh. But I guess as part of my winnings, he will wear headphones, which will help improve his audio, which is always perfect on this show. Never with any errors that he makes about it. And also. You look great, Justin. You look fantastic. Thank you, sir. It's going to be awesome. You know, like any like any defense opening, it's time to say, there's some facts that my opponent left out. So let me take you back a couple years to when these headphones arrive. And Spencer said, these will help you monitor your own sound. Except I can't hear myself in these headphones. You did that and use them correctly. That is that. Hold on, hold on. He said. You'll be able to monitor your own sound. I said, they don't work that way. And he goes, oh, I guess I didn't get you the ones I thought I was getting you. Oh God, I did not say that. That was years ago. I've not received working headphones since then. All I've received is grief. It's got to plug it into the right place. But he wears headphones. He didn't tell me that my sound was off last week. So, you know, I'm just doing the best I can. Yeah. What limited things you bring to this. Anyway, let's get back to the scores here. Is Katie Frozen? Yeah. Katie's either frozen or extremely still. In a very disappointed facial expression. I wish the listeners could see it. Well, I should narrate. Katie has a beautiful turtleneck. She looks great. She is strangely frozen. Yeah, she's just, the vibes are not good right now. Okay. I hadn't noticed she had frozen. She just seemed pretty still. And it made me think that we should just wait wasting everybody's time with our gibberish and get to it. But in fact, it could have been a technical issue. 20 minutes later. Katie, welcome back. Yeah, sorry. Our entire wall school internet just went out. Or maybe I just got really frustrated because I lost and left. Those were the two possibilities we contemplated. Now you have the Northern lights behind you too. Wow. Okay. Well, yeah, I've really changed locations. Now that we're assuming from my phone, I really thought that the answer was going to be Justin was going to be like, "Hey, these headphones don't fit my head." Or like, "Don't fit my ears." You will. Yeah, each week with all the wins it does fit a little worse. I will say. Katie, I have great ears. They work, they fit totally well in the headphones. I'm kind of short. So I haven't seen your ears really. It's uncomfortable. Okay. Well, we'll do a quick recap. Katie, you got seven picks right. You had Northwestern, Baylor, Texas, South Texas, Loyola LA, UCLA, and your own Mercer Bears. Sarah. My question doesn't mind UCLA because I put UCLA too. Isn't that two points? No. And that's been the rule forever, including when you've been on the show. And it's also listed on the spreadsheet you claim is inscrutable. But that's okay. Sarah, you have Maryland, NYU, Anchor, and Syracuse, Campbell, Hofstra, Cumberland, Berkeley, one, and UCLA, one. That's nine to seven. Sarah, victory. Congratulations. Vibes. That's fine for Vibes. It wins every time, you know? Well, it didn't win last year. I wasn't vibing. Like the Vibes internally have to match, you know? I see. I've got two things. It's very sporadic. It's a very sporadic method. Especially with those vibes. So next year we need to rematch. And also, just to put you on the spot numerically, these actually seem like high absolute numbers, given the smaller AHA field. Is it possible to compare these results to Rob and Phil, in terms of their total hit rate, you know, with that field twice as big? They're much better than Robert. Yeah. Much better. I mean, Robert did okay this year. He kept it close. And he obviously won in year one. His year two was the worst prediction set that we've ever had from anyone on the show. I don't know if there are predictions, by the way. I'm not sure that they were actually predictions. There were just words that occasionally use the names of schools. Yeah. Well, this victory means the Katie O's Sarah a spot treatment. But Sarah, you still Oh, Katie, some bourbon from last year. So my kids are gonna bring it. I actually talked to them about that. My kids are gonna bring it. I also, I need to send a gift for the impending birth of our trial advocacy baby. - Yes, love trial ad babies. - Thank you, a little trial ad baby. Her first words are gonna be objection. Madi Grace's, Madi Grace has heard a lot of arguments. Currently. (laughs) - Well, I used to bring my daughter to trial team practice and if they were doing a bad opening, I'd say, Malone, show them, tell the stories. And she'd go, "Okay." (laughs) And backfires when you, when they turn 12, when they start cross-examining you and your life. Oh, oh, I went wrong there. I went wrong there. Um, well, that's, I'm excited. I hate that I'm going to miss everybody though. I will be, I've got a keynote to deliver that weekend. But, um, look, the low key humble Greg is back. Yeah. Uh, Justin Roberts was like, Hey, just, you're not humble. Just, just be just. Actually, I'm really sad that I'm not going to be there. The kids from our team who went on had, you know, I've had them for a while. They were in my classes. And so I'm going to miss seeing them do their thing at Nationals, but they will have for you, Katie, a bottle of angels in here. Excellent. Well, send me your favorite spot info. and I will send that. - I guess we're one for one. So I guess next year we'll have to have like that breaker. - That's right. Well, the invitation is extended now. We're excited to have you back on next year for the rubber match. We'll find out who the best predictor is. And maybe, maybe Sarah, you'll give Katie a rematch in the Transportation Trailblazer competition. See if she can win her trophy back. >> Thank you both for coming on and good luck as your teams prepare for nationals. >> Thank you. >> Good luck to y'all too. >> Man, it's a good thing you didn't go double enough on those stick dinners there, huh Justin? >> That's right. I'll be eating some filet mignon with these headphones on. that beautiful cowl hat. It's going to be great. Uh, that I didn't think that was part of the bet, but oh, yeah, now we're going to relegate that. No, no, that's, that's totally fine. I, I thought it was either or you got the headphones or the gear. But I'll do both. I, you know what, I will see if I can find some Cal Berkeley attire, and I will wear that to which stake house have you decided on? - Is it, I thought that it was the next public event that you had to wear it to, but it doesn't really matter to me, you can wear it to both, that's fine too. - I will do that for you. So listeners, if you have suggestions on what stake houses you'd like Spencer to take me to, in LA or San Francisco, just let him know. And it needs to have a $4 sign, that's our entry point. - And when he's got his cowl hat on it at Eats, you can tell him how Betty looks in it. - Thank you. - Well, we've got a suggested plagiarism this week, and Justin, you did it, you spoke with Chris Arlidge. - Yes, Chris is a star trial lawyer in Southern California and Texas. Big trice cases like walkup all over the country. He was coming off a big verdict, and I've known him for a while, and I thought, you know, I think people would really enjoy hearing how he crossed examines. He is a masterful trial attorney, but his cross skills are particularly good. And I think he has an approach that's different than many others, so I thought it'd be perfect for suggested plagiarism. - Chris Arlidge. (upbeat music) - Our guest today is Chris Arlidge. He's a partner at Ellis George LLP, where he created and directs the firm's trial academy. He's been taking complex business litigation to trial for more than two decades. He's a published author on the topic of trial advocacy. He's taught trial skills in three different countries, one gigantic verdicts for his clients. For example, just in November, he won a $34.9 million verdict in a trademark case. I've also had the pleasure of seeing Chris in action, and he's phenomenal, both as a lawyer and as a teacher. So Chris, welcome to the show. - Thank you. If I knew you were gonna give such a generous introduction, I would've come a long time ago. - I wanna start by talking about how you got your start. You began your career at O'Melvin & Myers, same firm where I started my career, firm has close to a thousand lawyers, and like most large corporate firms, it rarely goes to trial. So how did you develop your trial skills when you started a place that doesn't really go to trial? - Well, it wasn't there. O'Melvin, he was a great place to be for a couple of years. I made some nice connections, but I wanted to be a trial lawyer. It was clear to me that that was gonna be extraordinarily difficult and a firm like that. And so I left having spent less than three years at O'Melvin, I went with some other associates, started my own firm in Orange County called 1LLP, and I was there 19 years before coming over to L-Storage a few years ago. And so once we were on our own, we had a lot more freedom to try cases that we thought should be tried. It's very unusual for somebody who starts a big firm to go do a solo practice just three years out. Usually when someone does that, they've made partner, and they have a great book of business, and they decide, okay, you know what, I think I could be even more lucrative or I'm more control over my career if I start my own place. You hung your own shingle with a couple of people, just three years out of school, what gave you the confidence to do that? - Well, part of it was that I was so young, I didn't know how hard it was. And that helped me actually a little bit. The other thing was that I figured, look, I'm still a relatively junior associate. If this flames out and I have to go knock on O'Melvin's door or Gibson's door or somebody else's, they'll probably give me a job. So I figured that even if things didn't work out, I could still get hired. But there's a downside to doing it, right? I mean, one downside is that you don't have the level of experience that you would have in O'Melvin, even if I was running a case, and even at that age, sometimes I was running smaller cases. I had other more experienced people around I could talk to, didn't really have that on my own. And the second thing, as you mentioned is, when you leave that early, you do not have the types of client relationships that are portable, and that's a problem. But still, I wanted to be a trial lawyer, I knew I wasn't gonna be a trial lawyer at O'Melvin, and so if I wanted to do that, I had to go out on my own and try to make it happen. Now, I want to fast forward in your recent trial with the $35 million verdict, who'd you try the case with? - I'd try the case with Keith Wesley, who is the manager partner of our firm, and also a long-time friend of mine. And George Lyle, George, what, George is a fifth year associate maybe? This is the second time I try the case with George. Both times, George has taken witnesses at trial and done an exceptional job. George is a fantastic young trial lawyer. - So that's part of the reason I asked you about it, 'cause I emailed with George separately. He was an excellent trial team member at Berkeley Law, where he was top of my coast in the show, Spencer Pocky. And I guess I'm wondering his lead counsel, how do you divide responsibilities? Because George is great, he's well trained, he's super smart, but you also have two decades on him with experience, and Keith Wesley is super experienced. So how do you decide, okay, these are the things I'm gonna handle, here are the things I'm gonna give the junior associate, 'cause you've got to balance keeping the client happy, developing, and training your associates, trusting them, but also making sure that you're doing the things you need to do, where do you draw that line? - Yeah, I think the key is to give the junior lawyer examinations that are important, but also examinations that he or she feels comfortable handling. Look, things happen in the middle of an examination at trial, and there are lots of people watching, and there's no do overs, and so you have to make sure that the person is comfortable with that witness in the topic of the examination. In George's case, that's not very hard to do, because George really is skilled. He got incredible training in Berkeley, and I like to think he gets good training where he is now, and he's naturally talented. So with him, it's not that hard, but yeah, I mean, look, if part of the problem is client expectations, right? Because the client looks at it and says, "Do I want somebody to be practicing "a few years to handle something?" Well, by the time they get to know George, by the time we get to trial, the client's usually pretty comfortable with him. So that's not as big an issue, but it can be. And the other thing is that there are things that I feel more comfortable doing myself, and both 'cause I think it's better for the client and better for me, and so I'll hold on to those things. I'm not afraid to do that. I'm afraid you want it specifically for a segment we call suggested plagiarism. That's where we ask star trial lawyers about some of their favorite techniques, 'cause they want our listeners to steal them. When I've seen you teach different trial skills, you see most passionate about cross. Why? Because it's the hardest thing to do. And it's the hardest thing to do because as I see cross examination, cross is a persuasive speech, right? It is a piece of advocacy, but it's a particularly difficult type of persuasive speech because you have somebody there who's also talking, who at any opportunity would stab you in the back and ruin everything, right? So it's an extraordinarily difficult thing to do if done well. And I'm afraid that we don't teach people to do it very well, because I hear far too many lawyers talk about how well, the purpose across, we just have to get in our good facts and then we'll tie it all together later. Well, look, if it's a two-week trial, a two-month trial, by the time you get to closing an argument, you may already be in a whole heap of trouble. And so in what other field of communication would somebody who's trying to persuade say, well, I'm just gonna try to get, I'm just gonna try to put the facts in front of my audience, not gonna try to persuade them, I'm not gonna put it in context, I'm not gonna tell a story, I'm just gonna throw some facts at 'em and see what happens. Only in trial, in cross-examination, would a persuader say something that dumb. But the reason we do that is because it's hard to do anything else. And so we've just decided, in many cases, that that's the best we can achieve, so that's what we'll do. And that's why cross-examinations in the real world, even the ones that don't go south and a lot do go south. Even the ones that don't go south, the big points that you wanna score tend to be a ripple rather than a title wave in front of the jury, because you simply haven't set yourself up to succeed, you set your sights too low in some circumstances. - Cards on the table, one of the reasons I wanted to talk to you, and I think the reason I've enjoyed working with you in the past is that I have a similar approach to cross when I teach my students that you've outlined in some of the training materials I've seen, I thought, "Oh wow, I don't usually people "see people say it like that." And I agree with you, I think too often, lawyers are collecting facts on cross, and waiting until they may have a jury that's already made a decision before they use those facts. Do you get a lot of pushback from other lawyers when you try to tell them, "Hey, persuade, don't just get facts?" - I do sometimes, and I do sometimes, here's the thing though. Some of what I'm saying isn't all that difficult when you start to think through the process. And let's start with this. Let's start with the impact of storytelling. I don't care what field of persuasion you're in, storytelling is critical. And the science on this is extraordinarily clear. People think in stories, they don't think logically, as Jonathan Hade, a pretty well-known writer has put, the human brain is a story processor and a logic processor. If you don't have your facts in the context of a compelling narrative, they're not going to be memorable, they're not going to be impactful, they're not going to be anything, they're going to be forgotten. But here's the thing, when you think about the two competing stories at trial, if you were to lay them on top of one another, there would be a substantial amount of overlap between the two, right? There has to be because you're talking about the same meetings, the same contracts, the same accident, right? There's a lot of overlap, cases are won and lost whether two stories diverge. And so cross-examination facts that we think are useful are facts that show our point of divergence is more likely than the other sides, path after the divergence, right? But I ask you, those facts only make sense because it's a divergence from the story as it's developed to that point, why would we not spend some time in our cross leading the jury to that point so they have the fact in context? So when the fact is, they immediately know why it matters. They can remember it very easily and it's going to have the impact that we wanted to have. That's a different way of thinking about it, the most lawyers do, but I'm telling you, it's far more effective than what most lawyers do as well. So I think when I lay out what I want people to do, sometimes I get pushed back, there's one point I get a lot of push back on, which maybe we'll talk about in a minute, but you have to be a storyteller on cross. And if you're not a storyteller on cross, you're not a very good cross-examiner. Can you give us an example of what it would sound like if a lawyer were asking just the facts versus what it would sound like if a lawyer were telling a story on cross or persuading on cross with the same content? Okay. So imagine we have an email from the other side, maybe it's the president of the defendants company. We have an email and in that email, in that email, he says that he wants to recognize a revenue early, right? This is a sort of thing you get in business cases. Now, immediately, if you're a trial lawyer, look at that and say, okay, I know that much of my audience is not going to really know what revenue recognition is. They might have heard of it before. Some of them might be CPAs, they might be CEOs, they may know, but a lot of people won't know. So the first problem I have is that I have something that people may not understand. And the second thing is recognizing that revenue when they did is important only in the context of the story. It's like saying, when Darth Vader tells Luke, I'm your father, that's important and interesting only because of all the stuff that came before it. And Jerry's tend not to know the stuff that came before and nearly as well as we do. We've been living with the case for years. They sat through two openly long opening statements and then you launch right into it. They don't have their bearings. And so what I would want to do is I would want to lay out why this is important. In my cross, I want to lay out why it's important. I want to lay out in my cross what the what the accountant said. But not only what the accountant said, I want to build up the importance of those accounts, right? You've had these accountants for 20 years, you pay them a lot of money, you trust them. You wouldn't keep hiring them to do this work if you didn't believe they were good. They had great qualifications, whatever, right? I want to build this up and I want to lead up to the point where when the jury then sees the email about the CEO wanting to recognize this revenue in the prior quarter. At that point the jury already sort of understands what's going on and why it matters. And they understand that the CEO is doing something that is contrary to the advice of his accountants who he's already said. Our great accountants, he's had him for a long time, he trusts them, right? That's a very different approach than what would happen most of the time. Most of the time a lawyer would give a couple of lead-in questions, they put the email in front of the witness and they would say, this is an email you wrote, isn't it? And in this email you wrote that you wanted to recognize this revenue in Q3, isn't that right? Need say yes. Now some lawyers would stop there. The less proven lawyers would then start trying to force their conclusion on the witness. And that's because, right, and then they get in a fight with the witness about the conclusion they want. And the reason they feel the need to ask those questions to try to force the conclusion on an unwilling witness is because nobody understands what the email means and they know that. Intuitively they can feel I haven't accomplished anything. Now the more disciplined lawyers who take that approach, they won't worry about trying to force a conclusion, does this say, alright, I'll explain all this in three weeks and hopefully they understand from my opening why this matters. I'm not impressed by that theory, right, that's likely to lead to jurors not even recognizing the importance of that email. When you talk about that email and close, two thirds of those jurors won't even remember that email was in the case. So what I'm suggesting is that we should put our facts in the narrative context and we should think about what we're doing, almost like a novelist or a filmmaker would. I need to give enough background and enough of the lead up to this event that it stands out as important and everybody immediately recognizes why this matters. You've described cross-examination as not just questions, not even just persuasive questions, but as persuasive speech. What do you mean by that? If it's done right, not all the time, but most of the time, you're asking questions that you know the witness has to give a particular answer to it, right? We've thought about it ahead of time. We have an unwilling hostage. We're trying to drag with us to our destination and we have to think, okay, how do I make him take each step of this journey? And if we don't know the answer, if we get to various steps in the journey and say, I don't know how I'm going to make him do that, then we probably shouldn't be crossing on that, right? Unless those very rare circumstances where we have to and we just have to hope and pray. Those are unusual. Okay, so if I know what the witness needs to say on every step of this journey, then essentially his job is like a Greek chorus in the ancient Greek place. His job is simply to agree with me as I'm giving a speech to the jury. And my speech is a story. I'm walking them through the story, step by step, and his job is to say yes, yes, yes, yes. What if he says no to get punished because he said no when he should have said yes, right? That's my job. And then we get right back on track. And so it is essentially a, it is essentially a story that I'm telling and the witness's job is to agree with me, even though he doesn't want to. You also tell lawyers that when they're preparing for cross-examination, they need to choose the right destination. You just referenced the destinations where you drag your hostage witness. So what does that mean when you say choosing the right destination? Is that the last question? Is it the point you're trying to prove? Is it something you explicitly say? Or is it something that you want the jury to conclude, even if you never explicitly say? What does that mean the right destination? I'm trying to take my journey on the destination, right? I'm trying to take them from where they are right now to a new place. And that new place, it may or may not be the furthest extent of my argument in closing. It may just be closer and closer to that point and farther and farther away from the other sides. But what I want to do is I want to figure out, okay, what can I prove to this jury dragging this unwilling hostage along with me? And in order to figure out what that is, obviously I'm going to think through one of the most important issues in the case, but not all of those are things that you can cross-examine on. And part because some destinations are not achievable when you're dragging an unwilling hostage with you. With my expert, my expert, anytime we come over a boulder, he's going to do his best to climb over that boulder. If we have to jump over a creek, he's going to jump over a creek. But if I'm dragging an unwilling person along, there's no getting over boulders. There's no crossing creeks. He's going to run off into the woods any chance he gets. And so I have to ask myself, what destinations are achievable? And usually that means that I can connect every step of the journey in some way. It doesn't have to be a prior statement of the witnesses, although oftentimes that's useful. It can be things that the lawyer has said. It can be emails. It can be company publications. It can be just good old fashioned logic, right? Or sometimes I know a person has to say otherwise they come off looking illogical or dishonest. But the key is to figure out what destinations are achievable. Most lawyers don't spend nearly enough time doing that. And you can tell because halfway through their cross examination, the witness isn't willing to take the next step. And you watch it and say, wait a minute, they've never asked themselves before they got up there, how can I make the witness take that step with me? And if you haven't asked that question, and you just find that in front of the jury, you can't make them take that step, it is a terrible, terrible feeling and really destructive to your credibility as a trial. Can you give us an example from your recent case, the trademark case I think in San Diego, where you were choosing the destination for a particular cross? Yeah. Let me put it this way. There were issues in that trademark case about whether or not my clients' trademarks were valid. revalid marks. Either because, as the other side said, we had misled the USPTO, which we hadn't done, but that was their argument. Or because the marks were generic, right? They had all kinds of arguments. Now, some lawyers will look at and say, "Okay, so whether the mark is generic may be the most important issue in the case, so I'm going to cross on that." But the question I had asked myself is, "I know he doesn't agree with me. I know he's looking to stab me in the back first chance he gets. So, can I get him to agree that this mark is generic?" And I decided, "Well, probably not. But what can I do?" And I thought, "Well, here's what I can do. I can probably get him to explain why it is they chose to use this mark. And I can probably get him to say things that imply something other than genericism." Right? And so, there were some material we had in some of the documents in other places that suggested that, that the customers are trying to sell to, saw this mark as, saw the mark we were using as particularly credible. Well, now think about that, that cuts against this idea that the mark is generic, right? You don't have extra credibility, if you use the word "apple" to describe the fruit, you don't. They were saying something very different. They were saying that this particular mark has some value above the fact that it's just a generic name, because when doctors hear that mark, it means something to them. That was the launch point for me to say, "Okay, I think I can get him to make some concessions about what this mark means to doctors." He's not going to say the mark's not generic. I know that. I'm not going to try to get him to say that. What I'm going to try to get him to say is some of this other material that cuts against genericness. And that's the material that I will be using, both in my directs and in my cross in order to show that the mark wasn't generic at all. Right? And so, but just because an issue is important doesn't mean you cross on it. The question is, what can I get him to say on this issue that will help me? And then I ask myself, "Okay, is that important enough to cross on and is it safe enough to cross on?" And I have to get a lot of guesses. And at some point, I say, "Okay, now I have a plan. I know how I can drag this unwilling hostage to this destination, and I know how that destination will help me." And now I can start to talk about that destination using those terms in my opening, in my direct examinations, and ultimately in my closing, right? Because it all has to fit together. So I hope that helps, but that's sort of the way I think about it. So as I hear you describing it, it sounds like you decided it was unsafe, and therefore unwise, to try to get an admission about whether it was generic. So instead, you tried to get testimony that was evidence of whether it was generic. Yeah, and I appreciate that. That's a good segue into maybe the most critical point. Cross examination is about collecting related facts that lead down a particular path. It is not necessarily about chasing after a conclusion, and in fact, most of the time, I would say, chasing after the conclusion you want is almost always a mistake. Oftentimes, when you lose control of a witness at cross, there can be one or two reasons. Either the witness is unreasonable, and the witness just refuses to answer a very clear and direct question. That happens sometimes, but when that happens, the witness is usually hurting himself. The far more likely reason why is because we're trying to get the witness to say things that we have no business thinking the witness will say. And so we start to argue with the witness that we get off track. So if you've had a situation where in your cross examination, it seemed to get out of control, take the highlighter, go back to the transcript, and start to highlight your adjectives and your adverbs and your characterizations and your conclusions. And what you're going to find most of the time is that there is highlighter ink all over that page, and that's why you got in trouble. Cross is one fact questions at a time, leading to a particular destination, sure, but it's facts and simple facts, strip everything else out, and usually one fact at a time, and that's the way to keep control and keep things from spinning away from you. You also use the expression multiplying facts on cross. Is that what you're referring to, and you say multiplying facts? Where's that something else? I think something else. And this is, sometimes when I talk about this, I talk about what I call the jigsaw theory of facts. And what I mean is this, no fact lives in isolation. Every fact is part of the story. And what is a story other than a collection of facts around a particular event, right? So no fact lives in isolation. And facts are like jigsaw puzzle pieces. The reason you can put a jigsaw puzzle together is because you pick up the, you pick up the piece and it has a particular outline with different colors in different places. And then you can figure out what other puzzle pieces connect to that one. The same is true in trial. One of the problems that that lawyers have, and it starts in deposition where you don't flesh out these facts as much as you should. But even on cross, when you haven't, when you have, when you don't have every fact you want, you can usually multiply a fact by taking the fact and then asking yourself, if this is true, what else must be true? If somebody includes in their, in a five page annual report to the shareholders, if that annual report has five points in it, what does that tell you? That tells you from the perspective of that, of the author of that document, those five points are extraordinarily critical, right? They must be important. You're not going to put on important stuff. They're probably big picture. They're probably things that, that the shareholders want to know, right? Now, that's just, that's just a couple of additional puzzle pieces. But when you start to put this together, you ask yourself, if this conversation took place, what must we know about this conversation? Well, the people knew each other, right? They were in the same place that day. They were talking about this subject, and there must have been a reason why. And oftentimes, you know, the reason why, and you can start to multiply facts. And what you can do with that is you can build out a more complete story. And, and, and this is, this is an error where I sometimes get pushed back. They say, people say, well, in, I understand in deposition doing that. And I say, yes, in deposition, you should be doing that. But, but not across examination. I say, of course you can. They're almost always facts that the witness would have to agree to because logic compels it or because other documents in the case suggested and logic compels it. And you can start to build out a fuller story. And a fuller story is usually a more compelling story. If you can give more context to the fact that you think is so valuable to your case, the jury will understand why that fact is more valuable to your case. So that's what I mean when I when I talk about multiplying facts. It seems like what you're saying is something that I try to impart to my students, which is on cross, you're not necessarily trying to chase facts or conclusions that you don't really have. What you're trying to do is make it clear to the jury why the facts you do have are significant, why those facts lead to the verdict that you want. I absolutely agree with that. In deposition, you may very well be trying to chase those things. But, but the only time I'll ever get up and do across a trial where I'm chasing after something, I don't know if I can get it, is on those rare circumstances where it's something that there was no discovery upon and it just became so important. I can't ignore it. The witness hurt us so badly. I just have to try to I have to try to accomplish something. That's extraordinarily rare. That should not happen very often. And when it does happen, it's usually because you screwed up somewhere earlier in your in your discovery process and business cases. But, but that's that's exactly right. I know what I know what the facts are. And I know what the witness is going to have to tell me otherwise he'll be impeached or look ridiculous. My job now is to take those facts and put them into a compelling presentation. This is where this is where the persuasive speech starts, right? And I think what happens a lot of times is lawyers lawyers think their job is finished when they figure out, okay, this is my document. This email says the following and that's really good for me. So I want to put that in front of the witness and have him admit to that. That's not the end of your preparation. That's the beginning. Now the question is, how can I tell this story so that this document really jumps out at the jury as critical and important and it's memorable. And when they get into the deliberation room, you have jurors saying, yeah, yeah, yeah, here what you're saying, but what about that email? That's the job of an effective cross-examiner. And that happens one, when you know your facts are really well, right? It requires a great deal of preparation. And two, you know them well and then you put them into the narrative context so that it flows exactly the way you'd want it to. That's also an important part of it. And I don't think lawyers spend enough time doing that. If I have what's going to be an hour-long cross examination, there's a decent chance that I've gone through. Not writing down the individual questions, I don't think that's effective. But going through in my head. This is how I want to approach it and asking myself at each step. Is he going to be able to blow me up when I ask that question? Am I going to be able to get him over this hurdle and trying it different ways, trying to figure out the different things that the witness might throw at me until by the time I get up there, I've done this 40 times in my head and I have a pretty good idea how it's going to go and therefore I'm completely relaxed and I'm walking through the flow exactly the way I wanted to. It's a witness who's in trouble. He has not gone through 40 times what we're about to do. Only I have. That puts me in a huge advantage. Chris earlier you said that there is one piece of advice where you get a lot of pushback. So I wouldn't be doing a good job if I didn't ask you what that was. So what is it that you include in your training that generates the most pushback from either other lawyers or the people you're training? The importance of a thesis statement. So if let's say I have a cross examination where there are four different I call them chapters or modules at the end of each of those chapters. If I were just to sit down and you were asked the jury what was that all about? In a perfect world they would give you maybe a one sentence response that is almost identical to the response that I had on my outline, right? That's in a perfect world that's how it would work. And so the question is well how do you do that? I think in almost all cases you need to state your thesis to the jury upfront. Now, now, lawyers usually try to do it at the end. And that's where you get into the don't ask one question too many, right? Because then you lay down all the facts that you think supports your conclusion, then you ask the quite well, then isn't it true that? And the witness says no that's not true and they throw out all the stuff they want to talk about, right? That's what happens. And that's why lawyers say don't ask the one question too many. Well, one way to think about the thesis statement is to ask that one question too many at the very beginning and set the stakes. Essentially, I'm telling the jury this is what I'm going to prove to you. And the witness is going to take a position usually you are not going to prove that and then I'm going to do it step by step. And when I get done with that chapter, if I sit down and you ask the jury most of the time they'll be able to tell you, well, he was proving this and the words they use, we almost identical to the words I use. Now, there are times when I don't do that right away because there are times when we talked about making sure you can drag the unwilling hostage at every step of the path. There are times when there's maybe a step on that path, I don't know that I can get for my witness. And if I don't yet have it, I can't tell my thesis because I can't fail. You can't tell the jury going to prove something and then fail. So in those cases, I'll ask myself beforehand, okay, what's my best chance at getting that missing step? And then I'll get that missing step in another part of the examination when the jury and the witness, nobody knows what it is I'm getting at, I'll try to get that piece. And if I get it, I'm going to take my marker, I'm going to write it up on the board and I'll let it sit there, okay. And then when it's time, I'm going to start my chapter of the need of that missing piece, I'm going to lay out my thesis statement because now I know I have the missing piece too. And it's written down so if they deny the missing piece, I just walk up and point at it, right. Now I can do it. But so there and there may be times when I delay my thesis statement until I'm sure I can win. But as soon as I'm sure I can win, I'm going to lay out my thesis statement and then walk that path. And I think that's really, really important. And the reason that so often we have great points to make and the jury doesn't get it is because the jury doesn't know what they're supposed to be looking for. They don't get a thesis statement, they don't get enough context to understand why this witness matters or why the conversation matters. And they don't get any of the story elements that lead up to the divergence in the two stories. And without that, they can't make sense of the fact. And so you tell them and if you're if you're opposing counsel, you'll listen, you'll listen and you know, oh, okay, here's that document I hate. It's coming right now. And so you, you know, keep your poker face and you listen and you realize at the end of that examination that most of the jury's, most of the jurors didn't even know that that document mattered and they certainly didn't know why it mattered. And that's because you didn't give them context. You didn't give them a thesis and you didn't put it in the context of the story and you failed. And that happens all the time. So that's what I'm trying to avoid. Most of the time that thesis statement or that thesis question is one that the jury, the jury's going to hear the witness disagree with. And then you're going to show that the witness is wrong and you're right. What happens in the rare circumstance where the witness conceives on that thesis statement? Then we're going to walk through and give them all the facts that lead to the jury having to admit that, right? And that's okay too. In fact, if you have a, if you have, if you have a really great admission from the, from the witness, a lot of times lawyers say, well, we'll just put that admission in front of the jury and then we're done. Well, you're not because the jury needs to understand why the admission matters. And so, and they need to remember it. They need to remember it. That's right. So there are times when there are times when the witness will agree with my thesis statement. And, and that's fantastic. You agree with my, let's explain to everybody why that's the case. Boom, boom, boom, boom. And we walk through it. And at the end of that, not only do I have a thesis statement that's undisputed, but the jury knows why it matters and they'll always remember it. But I think a thesis is, is critical. It's critical to the examiner because if you haven't figured out what you want the jury to say, oh, I know what that was all about when you're done, then you probably haven't done your job well enough, right? I have to have a very specific target for me to, for me to approach the target. And second, the jury needs to hear that as well, because I want them to know what I was trying to prove and remember it and find it, and find it compelling. And they're not. If at the end of it, they still don't know what this was all about. The thesis statement is critical. I get pushed back on that, but I will grow to my grave saying that the lawyers who argue with me are wrong. And I'll tell you why they usually say, when they argue with me, what they say is, yeah, but if the witness knows where you're going, then they're not going to give you the information. But if you've done your work, it doesn't matter if they know because either they've already admitted all the steps or arguing with you on them is going to lead them to lose credibility. In other words, it's too late. That's exactly right. You replay the game hearts. Yep. If you're trying to shoot the moon and you wait until the cards that you're afraid have already been played, you already know you've got it, right? It's only exciting to everybody else. You already know you've got the moon. That's right. Now I agree with you completely. And where you don't have it locked down already, that's my exception of the thesis rule. That's where I delay the thesis until I get that missing piece. And then I'll do it. But by the way, if you tell me that the witness who knows this case, a lot better than the jury does. If you're telling me the witness doesn't know where you're going with that cross examination, I can assure you that the jury has no idea where you're going with that cross examination. And that means you're probably going to give up and stop listening to you. The jury, they're dragged from their homes and their office does a sit in this uncomfortable building, listening to people talk for hours, which we don't do in this day and age, right? We have other forms of entertainment. If you think you can get up there and do a 45 minute cross examination and that the jury is not going to know where you're going, but they're going to follow it carefully and remember those critical facts for closing. I'm telling you you're crazy. It doesn't happen. They will have given it up five minutes in just the way it works. Well, if we can find a way to drag our listeners hostage and make them listen to this episode, we certainly will. Chris, thank you for coming on. It's always a pleasure to talk to you. Thank you very much. Great interview, Justin. And as promised, it was really exceptional. I love the conceptualization that Chris does of various things, including destinations to think about where you're going and who you have with you and how can you get them there because it's going to affect what your destination should or could be. I also appreciate his shout out to George Layillo, your former student, and the great training he received at UC Berkeley. Go Bears. Go Bears. George is a star and a great guy. He played a role in that verdict, which was awesome. We just had him in to judge the pint. He was great. It's so much fun to watch your students go so far beyond being a student at your school to being a successful trial lawyer. It's fun to see that. What was the tournament where he judged? Oh, the pint, the pocky internal tournament. Oh, the pub. I forgot. That's the tournament you named after yourself. I forgot. That is an acronym, right, pint? Sure is. Okay, good. All right, last question of the week. It's our mail-back question. This one comes to us from an anonymous listener. Naleigh said last week that all American advocacy words may only come from schools that are members of Naleigh. Do you think that's fair, Spencer? I should first say that I called AJ this week, and it was really nice chatting with him. So I did get back to him. Secondly, I think it's completely fair. It's Naleigh's award, and if you want it, you should join Naleigh. It's not hard. It's a good organization. It's supporting what we do. I think it's fair. Yes. You want to take the opposite position, Justin? No, I think it's totally fair, it's their award. Yeah, I mean, you can't get a script. If you don't listen to that script, it directs. You don't get, you don't get nearly a word if you're not a member of NALA. That's, I'm really glad they're doing that award though. But yeah, so join NALA folks, you know, join an award. Congratulations to the 20 teams advancing to stack nationals. Congratulations to Sarah Williams for not only winning the transportation competition, but also the predictions contest. Congratulations, Spencer, his first time winning a fair contest against me on the show. I'm really proud of you. (laughs) I can tell. (laughs) See you folks. Bye. Unscripted Direct is a production of Justin, Spencer. We are mixed and edited by the Sam Chase. If you're not on the listserv, but want to get our blast email with each episode, sign up at unscripteddirect.com, follow us on social media or whatever the kids are calling at these days. For Instagram, @unscripteddirect, Facebook, Facebook.com/unscriptedra, and Twitter @unscriptedDX.