Using Data to Beat the Defense, with Eric Fong

Intro/Outro (00:02):

Every trial lawyer knows that moment when you've built what feels like an airtight case, but you're still lying awake, wondering what will the jury actually think? Jury research was once a luxury reserved for cases that could support a big data study bill. Not anymore. Join trial lawyer and trial scientist, Alicia Campbell, empirical legal scholar, Nick Schweitzer and data guru Kevin Doman as they break down the barriers between you and the minds of your jury. This is the Fred Files produced and powered by Law pods.

‍

Alicia Campbell (00:38):

Hi everybody. Welcome to the Fred Files. Of course, it's me, Alicia Campbell, Kevin Doran, Nick Schweitzer. We're all here to talk up the data talk. I have to introduce two other types of, I don't know what you'd call these. They're Freds,

‍

Nick Schweitzer (00:53):

They're characters in our Fred Universe.

‍

Alicia Campbell (00:56):

I love it. We have painted snowball microphones for all of you who are not watching that have different versions of Fred painted on them by Maria DDA here in Madrid. She's an art major here in Madrid, and I had her basically come up with ideas about what she would do, and so she went ahead and picked, I think we have one microphone that has Escher, one that has Fred as Picasso painting. So Kevin's going to have one soon after he gets hitched, I think. So every time you join us, you'll be able to see our very unique microphones, but I wanted to give a shout out to her. She did a great job and I don't think I effectively said thank you very well prior to this. So I know that when we talked last time, I was hounding Seton Claggett, he was going to be on, and he definitely is.

‍

(01:39):

I already talked to him officially guy, so I didn't just call him out and then not follow up. So he'll be on. I kind of want to do that for anybody who's listening to these religiously. I hope people are. But today I am very excited because we have Eric Fong, who is known in my house as the data beater. The data beater, which is quite a trophy I must say. So we're very excited to have you and hear you talk about all the things, data related and then just about you because you're a wonderful person. John and I are so thrilled that we've gotten to know you so well. Everything that you do in the courtroom is just amazing. So without further ado, I'm going to let you tell people a little bit about yourself, Eric, and then we can get started after that. Talking about either one case or both cases that you've run through data and beat the data with,

‍

Eric Fong (02:28):

It's probably a good thing that I don't understand the data and so makes sense, what to ask for more, and that's how I beat it.

‍

Alicia Campbell (02:36):

What are your two big verdicts though, that you're just asking for these random verdicts?

‍

Eric Fong (02:40):

Yeah, so a 91 million premise liability verdict for a young man that walked into a convenience store that was being robbed. And then recently, a couple weeks ago, 42 million verdict for a child. Now a lady, a young lady who really got betrayed by CPS, the government just left her alone in a home where it was a house of horrors.

‍

Alicia Campbell (03:06):

Those are not too bad.

‍

Eric Fong (03:07):

It is. Look, they're great verdicts, but I'll have to tell you, neither one of them would exchange their life for that amount of money. And if that's what the value of justice is, then frankly, those verdicts aren't big enough.

‍

Alicia Campbell (03:20):

Yeah, that's a fair point I think. Where are you right now?

‍

Nick Schweitzer (03:23):

I'm in Forks, Washington. It's the twilight Town, right? It is.

‍

Alicia Campbell (03:29):

And what are you doing out there? You're just hanging out after beating data. Is this what you do to decompress after trial?

‍

Eric Fong (03:34):

It is. I always need a recovery period. These things just take it out of me, and so I do. I just need weeks. There's Paul Lara who I just love. He's friend, father, dear in my soul. He would always tell me, you celebrate your wins and losses of 48 hours and you move on, and I can't do that. It's such a physically and mentally exhausting endeavor that I just need to refocus to refill my soul, regenerate me, and so I go to the nature, I go to the earth.

‍

Alicia Campbell (04:02):

That seems to help.

‍

Eric Fong (04:03):

Oh, it absolutely helps if you're not centered, not to get woo woo and out there, but to be effective as a person, as a trial lawyer, as a father, as a mother, as a friend, you have to be centered. You have to kind of know where you are in this moment, and you have to be at peace and calm unless you have that figured out. The fogginess, the resentments, the jealousy, the anger, the second guessing, what about me, the pity party. It can overwhelm what's going on here. And so for me, it's really a spiritual practice to center myself to be an effective person and available to other people. I totally agree with that.

‍

Alicia Campbell (04:43):

How do you deal with that though when you are in trial?

‍

Eric Fong (04:46):

Great question. I make it a priority. I make it a priority to disconnect from the madness of it because I find a really peaceful, powerful place nearby, and I go and just get lost. I'll bring my dog, my headphones, and I'll just take off and walk. And so this last trial was in eastern Washington, which kind of I'm not too familiar with the place, and I found this beautiful. It's a really rugged country. And then I found a park whenever I could, I would just tell the team, you guys, I'm taking off. I'm just leaving. And I'd go for walks, find a river, sit and stare, think, meditate. You know what I would say is when we're in trial, there's so many thoughts that are racing through us, and those are actually somewhat counterproductive. The jury isn't having this many thoughts. The judge isn't having this many thoughts. And if by the time we get to trial, we haven't simplified the case to the point where we can effectively knock out each thing that we have, we're in big trouble. It has to be the preparation in advance allows you to maintain a peaceful mind so that you're at the space where the jury is, we're meeting the people where they are. We're not coming in with all this bombastic energy that we have to unload. It has to be a mutual experience. And so for me, just tied up, I have to be relaxed.

‍

Alicia Campbell (06:08):

And so what do you do? Does that affect how you work up a case? Does that affect, how does that work when you're thinking about being on a juror's level when you're in presenting, I obviously the order of proof how you're presenting it, but I assume you take that perspective all through the litigation.

‍

Eric Fong (06:25):

Are you familiar with role reversal?

‍

Alicia Campbell (06:26):

Yes.

‍

Eric Fong (06:27):

For those of you that are not, I kind of grew up in the jury expense model, went to the ranch in 2001, been teaching the Jerry Spence method for over 20 years. So I'm highly sophisticated with that process. A big linchpin of that is role reversal and other psychodrama techniques that the brilliance of Spence and the Jerry Spence method is using psychodrama in trial and role reversals. Really quite simple. Imagining what it would be like to actually become someone else, put yourself in their shoes and imagine what it's like to see the world through their eyes. And so I'm just trained. I've been doing it for so long that I can, it's just a way of my life. I'm always trying to think, oh, what would it be like to be Alicia and Kevin or Nick or the folks listening? And when you get to that point in trial and you make it a focus, you realize the power of it. And so if things are going bad, you can be like, well, what must the juror be thinking? They must think that I completely misled them and I've been lying to 'em all along and they must hate me for it, but I have to have the patience and the calmness to recognize when it's my turn, I can capture that moment and show them why I hadn't misled them and kind of get the ship back on course, if that makes sense.

‍

Alicia Campbell (07:46):

It does. Talk a little bit about what is the Jerry Spence method, just for people who don't know anybody listening.

‍

Eric Fong (07:52):

So Jerry Spence. So I was 31 years old when I went to the ranch and met Jerry, and I didn't know who Jerry was, but Jerry is a philosophical genius. He's accomplished artist. He's a bestselling author, and he's a very powerful trial lawyer. If you're like Michael Jordan, LeBron James, Kobe Bryant, magic Johnson, who's the greatest basketball player ever. The Mount Rushmore of athletes or the Mount Rushmore presidents, Jerry Spence would be plastered up. There is someone that you would have to say is one of the greatest ever with his genius and his ability to connect. In 1994, I believe he reached this point in his career where he just wanted to give away his knowledge. He wanted to share it with lawyers that were fighting for a righteous cause. If you represent insurance companies and the government, you were not invited. You were never going to get a seated, but if you represented people apply and if you get in, then you're there for three weeks.

‍

(08:55):

The middle of nowhere, Wyoming immersed in learning. It's evolved over the decades. We've been constantly refining, started out with Jerry and some ideas, and then the staff would all get together and we'd talk about how can we take what he's done every day Jerry would say, well, what can we do better? What do we need to change? What did we do lousy? What did we do good? And we just sit and talk about it. There's nothing like it anywhere. I can tell you that right now. Nick Rally, he and I and Joey Lowe and Joe Free and Betsy Green and Vicky Slater, we all kind of grew up together working this stuff and have done our own thing with it. But it all comes back at some form or another, I believe, to role reversing with other people and having the sensitivity, the vulnerability, the compassion, the understanding to connect with people at a common level, which all is the hinge to credibility.

‍

Alicia Campbell (09:47):

And so with all of that, what led you to meeting John and doing data?

‍

Eric Fong (09:52):

Well, it was one of the greatest introductions I've ever had. I have to tell you, I'm eternally in you guys because how it's changed my practice and my approach to cases. So I met Sean Kratt, we kind of known of each other. We'd met through Rick Friedman and Sean was helping me with this case, we'll call it the Tisdale case, will Tisdale. That was the premise security case. And I took a leap and just kind of like, Hey, man, we spent a weekend together and it was one of the most exhilarating creative weekends I've ever had with someone. You guys all know Sean, and just how brilliant he is and just how quickly he can slice through things and see things like the clarity and the vision. It's exhilarating to be around that kind of energy. And as I was getting dropped off at the airport, he's like, Hey, you got to fricking call John Campbell, and he's telling me about Big Dad, and there's certain people I just trust unconditionally.

‍

(10:47):

If they say jump, I'll jump. And so Sean is one of those folks. And so he gave me John's cell phone and next thing you know, we were chatting it up and a real friendship grew out of that. He's a lovely human being and you guys did your thing. And I read single word of it. Some of it I didn't understand and needed to call John up and say, what in the hell does this mean? And walk me through this hourglass thing of dots and why is this red and this one's blue. But I understood it, and it's not, I don't want to overcomplicate. It's actually very simple. I'm making this more of a big deal than it is, and you get it and you can't stop reading these reports. They're exhaustive, they're long and just packed with endless information. And so that's how I met John.

‍

Alicia Campbell (11:39):

And so the first case we ran was Tisdale. Right? I remember because John and I spent a lot of time talking about this case because our initial instinct, especially after watching the video was this case is hard. Premises cases are hard, right? Because you usually have someone, do you know what a premises case is, Kev?

‍

Kevin Doran (11:58):

No, I'll say no, Eric. I'm here mostly for exposition, like the characters in movies who are like, okay, what does that mean? I always learn something and then later I talk to my friends. I know way more than they do about law and trial and stuff like that.

‍

Alicia Campbell (12:14):

I love it. Yeah. This is a premises case where, yeah, I mean, what Eric said is right. Who are you suing? Eric? We'll do it this way. Who are you suing?

‍

Eric Fong (12:23):

Yeah, so Kevin, a premise, just like a driver of a car, the owner of property has a duty to talk legal terms, keep it safe. And if you're a business and you're inviting people, customers to come into your store and of something that's dangerous, you have to either warn them or prevent the danger from happening. So premise liability is just keep the premises safe. So we sued, it was this little rinky dink greasy gas station convenience store in one of the most dangerous parts of Tacoma, and it was a real odyssey to try and figure out who actually owned this establishment. Not an exaggeration to say it took years and the lawyers were apologizing and Oh, we'll figure this out. But we did have insurance on it, so we knew we'd eventually get there. And as best as I can tell, these big gas stations that sell alcohol lottery tickets and snacks and a lot of gasoline are really just laundering money for the uber rich. They're held by financial investment companies that own the trucks that deliver it, the refineries. They're all invested in these stores, and some are franchises, some are individually owned. But if you follow the money for this particular one, you go through a $50 billion American venture capital thing, and you eventually work your way up to SoftBank. But because of the layers of corporate protection and the way they conceal each higher entity from the lower place, we basically sued some gas station.

‍

Alicia Campbell (13:55):

This is part of why we thought it was a hard case is because you're suing the gas station for something that the gas station didn't do, right? Because the whole idea is, hey, you need to keep it safe, but what you do have is this third party actor that's coming in and doing something. So a lot of jurors struggle with that idea. It's kind of like a Dr. Shop case where you sue the bar for overserving, the person who's driving their car and hit someone. So you kind of have, and that's why this case is amazing. You kind of have this string where you're trying to get liability, but you've got somebody who's in the center of it as opposed to a motor vehicle crash where you sue the driver who hit you with the car.

‍

Eric Fong (14:34):

Absolutely. In the irony, of course, is the driver of the car is just a pawn in the corporate scheme of the insurance company, not to honor its promise. In this case, the wrongdoer, it absolutely was the corporation, but at first blush, you see a maniac with a baseball bat attacked my client who's running up and as the defense would say, confronting the robber with a baseball bat. My guy ran up to a person in his car with a baseball bat. Most lawyers probably wouldn't get too excited about that, but I read Randy McGinn Changing Laws, saving Lives or something like that. At the same time, I'm reading that book, this case came before me. And so I was really tuned into the dangers, the known dangers of the convenience store robbery after midnight. It's like a scientific, it's a guaranteed thing that bad things happen at convenience stores when it gets dark and people are asleep. It's the second most deadly job in the country as a convenience store clerk. Yeah, number one is a cab driver.

‍

Alicia Campbell (15:36):

Wow, that's crazy.

‍

Eric Fong (15:38):

You're more likely to die as a convenience store clerk than any other job except one.

‍

Alicia Campbell (15:42):

I don't know that people would really know that very well.

‍

Nick Schweitzer (15:45):

I mean, it makes intuitive sense. I mean, it's funny because it's media portrayals of it. I mean, it kind of gives you the sense that, yeah, would be very dangerous.

‍

Eric Fong (15:54):

The difficulty with jury trials is to make it really simple for the jury so that they're like, oh, dove. Of course. So seven 11 was kind of the brain child of 24 7, 24 hour a day convenience stores, and they got their name because back in the forties or something like that, they created a store that was open from seven to 11, seven in the morning to 11 at night. And this was revolutionary, changed people's lives. They're like, oh my God, we can go get bread at 11 at night. It was an instant success. At some point in the late seventies, early eighties, they decided, well, damn, why don't we just do this 24 hours a day? The minute they did that, cop cars were showing up at stores in every city. They opened up at three in the morning because someone was hurt or dead from a robbery.

‍

(16:42):

And so this became this huge academic focus of academia in addition to the business, the government, everybody wanted to know, well, why is this happening? It was no longer a coincidence. It was just compelling evidence that there's something happening. And once again, common sense steps in and they realize you have to have light. You have to be able to see into the store. Most importantly, you have to train the clerks so that when they're confronted, just give them the cigarettes. Don't fight 'em. Right? And so osha, there's federal regulations, there's local city regulations, there's state regulation in every city, county, state in this country that if you're open 24 hours a day, you have to take affirmative steps to make it safe. If you don't, you're negligent.

‍

Alicia Campbell (17:31):

Wow. So I mean, I didn't know that that that's how seven 11 started. How interesting.

‍

Eric Fong (17:36):

Yeah, isn't it?

‍

Alicia Campbell (17:37):

Yeah, that really is. So what made you take this case though?

‍

Eric Fong (17:41):

It was reading that book, Randy McGinn. Oh, there was a homeless encampment on the gas station. And so when it was my interns, isn't it funny, little breaks, my intern's ex-brother-in-law was my client. She's like, Hey, I think there's something going on here. This is a dangerous gas station. There's always police there. And when I visited Will, I don't care how many times you see a human being, we deal in suffering, right? We deal with horrors of what can happen to people. There's certain level of suffering that no matter how many times you see, at least for me, and I hope I never get numb to it, it shocks me. I don't know how to talk to the person I don't know how to behave because of the presence of suffering I'm in. But then you also want to be kind of like normal because that's their life. But when I saw him and where he was at in that little bit of information, my intern told me and I was like, in the middle of reading this book, I'm like, I, I'm going to take this case on. I immediately hired a private investigator. I immediately ordered up all the police reports for the last two years at this address. And I knew I had a rocket ship case because this store was just dangerous. And the cops were going there every other day and there was a homeless encampment on the property. It was nuts.

‍

Alicia Campbell (19:00):

How was will

‍

Eric Fong (19:01):

Injured. His skull was split in half by an aluminum baseball bat. Super disturbed.

‍

Nick Schweitzer (19:09):

What was he doing? What was going on that?

‍

Eric Fong (19:12):

So will walks into the store as it's being robbed, the clerk is struggling with the rob who has a baseball bat, and when will walks in, the robber gets scared and walks out, the clerk enlists will's help and says, Hey, call nine one one. Will's on his phone and he steps out to look out the door like, what the hell's going on? He has no idea. There's danger. As he looks out the door, the robber is in his car, he sees his car door open and someone's in it. So will runs up to the car. And at that point, the rob just whips out of the car holding the bat and

Nick Schweitzer (19:51):

He was just trying to help. He was calling 9 1 1

Eric Fong (19:54):

Instead of warning. So here's the duty to warn, right? Think about it. If you walk into a store and it's on fire, you tell the customer, we're on fire, you need to leave. Don't say, grab a bucket of water and help. That's a good analogy. If I'd been on it, I could have used that in that case. But you don't enlist them to help with your problems.

‍

Alicia Campbell (20:16):

It's crazy. I remember. So when we ran it the first time, do you remember how the data came back the first time?

‍

Eric Fong (20:22):

I don't think the win rate was where we would want it to be. You may win this case on liability, maybe worse than that. I don't remember them.

‍

Alicia Campbell (20:31):

Yeah, it was iffy case, which, because initially it didn't surprise as much for exactly what we were talking about that people just see that as an independent actor. But I remembered that we did a lot of work and you did a really great job of establishing exactly what you just said actually, which is, Hey, if somebody walks into my store and it's on fire, I don't hand 'em a bucket of water. In the second version, we hit that a lot harder. The presentation you sent hit those elements a lot harder of like, Hey, but I know you see this independent actor acting against will, but the person in the store knew what was going on. The person in the store knew there was a robbery. Why didn't they lock the door and lock will in it, right? Why weren't there things done besides, Hey, will you go get on your phone and go back outside? Since I don't know where this person with a metal baseball bat has gone,

‍

Eric Fong (21:19):

I always felt kind of comfortable to me, there were two breaches of duty that we argued. One was the failure to train the clerk and managing a robbery and having no lighting. The windows were plastered like this one. If a window is covered and they're not going to go into a store where everyone can look in and see it's being robbed, they go into a store where their identity is concealed. This whole store was blocked in with posters, a cigarette cabinet. If you were standing outside, you couldn't see in. That's negligent. The other negligence was they didn't train the clerk how to handle and manage the robbery. Those are questionable, complicated. You got to work hard intellectually to get there. But what wasn't difficult is the idea that if you know there's a danger as a business and your customer is entering a danger zone, tell 'em.

‍

(22:10):

So that was for me where I felt super comfortable, where we would get liability, but the anger and the real juice and the outrage of this case was the failure to train, take the preventative measures to make the store safe. Because guess what? That takes a lot of money and commitment by the business. And so that's what angers people when a business is willing to enhance their profit at the expense of the safety of not just their customers but their employees. And so we kind of used those two to get us over the hump, so to speak. And the real difficult part was will confronting a person in their car, right? The contributory negligence, so to speak.

‍

Alicia Campbell (22:48):

And did you talk to the jurors after this, after you got a verdict?

‍

Eric Fong (22:52):

Yeah, I did. Don't ask me what I learned or what they said. I put very little weight into those conversations. They were happy. They felt like they were a part of something important, something meaningful that they could honor within themselves for the rest of their lives. They worked hard and they were proud. That's what we want as a plaintiff's lawyer is a jury that's committed to the cause. Certainly they understood and appreciated the value of this case.

‍

Alicia Campbell (23:18):

What did the judge say?

‍

Eric Fong (23:20):

Well, there's always this professional distance that judges and lawyers need to keep unless it's your best friend or very close friend. So it's a judge that it was a different county. I'd never been in front of her before, didn't know her. It was her last trial.

‍

Alicia Campbell (23:35):

Oh wow. So you didn't get anything like, wow, we've never had a verdict like that here. Oh wow. I can't believe this number. Did you get anything like that?

‍

Eric Fong (23:44):

No, no. Not from the judge. I mean, they brought a remitter motion to reduce the verdict and she denied it.

‍

Alicia Campbell (23:50):

Aha. Good job. Good job. Had they had a verdict that big?

‍

Eric Fong (23:55):

No. So on strictly compensatory, just making up for the damage that was done to the human. It's the largest verdict in Washington, and the 42 million verdict is the second largest. So I got a little bit of pride accomplishment.

‍

Alicia Campbell (24:10):

You should have a little more than a little.

‍

Eric Fong (24:12):

No, I do look, I mean to work your whole life and to achieve something like that. And I have, I've worked really hard and I take this very seriously. And of course it has to be a passion to throw yourself into it. I'm honored and I am proud. And of course it feels great.

‍

Alicia Campbell (24:30):

And then when was the Tisdale trial? What year was that?

‍

Eric Fong (24:33):

2021. So four or five years ago.

‍

Alicia Campbell (24:35):

Oh, right after COVID, right?

‍

Eric Fong (24:37):

Yeah. It was actually a COVID trial. It was actually in a community center. Everyone was spaced.

‍

Nick Schweitzer (24:43):

Oh, wow. Yeah. Did you find that, was that from your experience, the trials you had done before that, was that a big change? Did you do anything differently?

‍

Eric Fong (24:51):

Well, I'll tell you that for me, and I've done a couple COVID trials, the worst thing about 'em is the jury selection processes radically altered because they would distance people. So you couldn't bring in big groups of people. You had to bring them in small chunks. And the courts are always pressured for time and everything was taking a lot longer. But each individual session with the group was radically shorter. And so I really did not enjoy picking a jury during COVID because I like to have a big group where you got to form a group, you got to establish relationship trust and what have you. And so that to me was the biggest impact

‍

Alicia Campbell (25:28):

Because How big was your panel?

‍

Eric Fong (25:30):

Well check this out. So I think I got 20 minutes per panel and they came in groups of 18. We had our jury picked with that first 18. I'm not lying, I'm not fricking lying. And I was devastated. I was crushed because there were some haters that were going to sit on that jury and one of 'em got COVID. Another guy was just sleeping through the trial. So in Washington it's 10 to 12, California, nine to 12, Colorado, six to six, right? It varies when you can create a group and you can have two people whose verdicts don't your vote, you're not with the bulk of the big group. You've got some leeway. And so when you shift the composition and you lose the two worst and the alternative step in who you're two best, that is a big time change in group dynamics. And it was extremely lucky. Just dumb luck because if you don't have that shift, I think I still would've got a verdict, wouldn't have been anything close to 91 million.

‍

Alicia Campbell (26:33):

And so was everybody in a mask? Were you in a mask?

‍

Eric Fong (26:36):

She gave us the option not to wear a mask. Most people were not wearing masks. I don't remember anyone wearing a mask.

‍

Alicia Campbell (26:42):

How long was trial?

‍

Eric Fong (26:44):

Three weeks.

‍

Alicia Campbell (26:44):

Three weeks. A COVID trial.

‍

Eric Fong (26:47):

My last trial was three plus weeks. This last trial I put my case on in a day and a half.

‍

Alicia Campbell (26:53):

So you take speed trial to a new level.

‍

Eric Fong (26:55):

I spent a day and a half including his day. It was less than two days

‍

Alicia Campbell (27:00):

On a three week trial. Do you just let the defense muddy everything for the next,

‍

Eric Fong (27:06):

Well, I dunno if it's to a new level, but one of the things that Jerry taught me is part of the method, and this isn't unique him or what we teach or do, but you turn the defense witness into yours, you convert 'em to prove your case, to tell your story. Isn't it true convenience stores get robbed after midnight. Isn't it true that if you have the windows blocked and you can't see in the store becomes dangerous? Isn't it true that the stores are required to not block windows? Isn't it true this window blocked? So my expert saying that might be worth, let's say half a point, getting their expert to say it is worth a point and a half if one point is a hundred percent right when you can get the other side to make your point. So at some point if they're smart, they're like, shit, we need to just stop calling our witnesses because they're getting destroyed and they're proving this guy's case. A lot of people will say cases are over by jury selection or opening maybe, maybe not. But what I firmly believe is if you want a meaningful verdict, you better know how to cross examinee someone. And then that's where the righteousness comes up, the lying by the other side in the blatant disregard of the truth.

‍

Alicia Campbell (28:21):

So in the second case that we talked about, I don't know the name of that one. I think we had it as a

‍

Eric Fong (28:26):

Hilton.

‍

Alicia Campbell (28:27):

How did you get that case?

‍

Eric Fong (28:28):

I was brought in to try it.

‍

Alicia Campbell (28:29):

Wow. And so did you work that up start to finish, or did you just come in as a

‍

Eric Fong (28:34):

Yeah, I worked it up. Start to finish with him. His name was Tallis, a Evelyn's dedicated paralegals and associates and worked it up from the very beginning.

‍

Alicia Campbell (28:42):

Hey, because that's a hard subject matter to deal with day in and day out.

‍

Eric Fong (28:46):

And so we had a veneer of, we had 60 people that came in from the community to be possible. Jurors out of those 60 45 had been touched by abuse, CPS or some kind of governmental injustice, so to speak. 45 had been touched by abuse.

‍

Alicia Campbell (29:03):

I wish I would say I was surprised by that. I'm more surprised that seven 11 used to only be open from seven to 11.

‍

Kevin Doran (29:12):

It is funny, with seven 11, I feel like you could put a word cloud together and we all would probably see one of the top words being knocked over. You say seven 11 and your brain kind of goes to getting robbed robberies. Oh

‍

Eric Fong (29:26):

Yeah. Some of the people in the focus group said, you're assuming you're going to get hurt if you walk into a convenience store at night. You're dumb as who does that.

‍

Kevin Doran (29:38):

But hearing about it, I do understand why you guys call that a difficult case at first because my brain immediately goes to that. But then I also understand the third party liability stuff. Actually, this is funny because when they first had me, when we were first talking about building focus with Fred Eric, they were telling me as the software developer, and then you get to this part where people are going to rate liability and you need to have a space for them to put a third party. And I was like, okay, I don't know what they're talking about. It sounds good. And now it's like, okay, now this makes perfect sense. Like I imagine being a, on this jury, hearing the story and having had some personal experiences with robberies, I totally get that If someone is not trained to deal with a potentially violent robbery, it can go so wrong.

‍

(30:28):

And I also get why it's contentious, because I've had this argument with friends many times. If someone comes to Rob, you need to give them your stuff. You shouldn't have any second doubt about if they're asking you for their wallet, you just give it to 'em. And I understand that there's lots of people who are like, no, I would fight 'em or No, I would do something different. So it's really interesting to hear that. I immediately thought, yeah, I can totally see why if this had gone through focus with Fred, I can definitely see that it would've been people ranking the third party as highly liable or saying that they don't know what to say or how the wind should go.

‍

Eric Fong (31:06):

Yeah, Kevin, you nailed it. So as you were saying that, it struck me the irony of we say the clerk was negligent because he's confronting the robber and not giving the cigarettes, but at the same time, our client is confronting the robber who's taking his car. Of course that was a huge kind of puzzle. Yeah, huge challenge. And that's so fun about focus. One of the great values of focus groups is as a lawyer, we have a puzzle. We have a very complex picture that we have to make it and put all these pieces together so that when you look at it, you see a beautiful image. Trial lawyer is nothing but a puzzle solver. And we put together a picture. Of course, one of the puzzling parts of this case was my guy running after confronting a person who's trying to steal his car with a baseball bat.

‍

(31:55):

What we learned, the solutions are always going to come from other people. And what better way to get input from other people than using you guys? Run different ideas, present the facts and see how ordinary people respond to it. What are they saying? I always get a large portion of my closing argument, opening statement, how to do a direct from the comments that I get from the people who see this stuff that support me and then are against me, the people who are against me. And I know that that's what people are going to say. Of course, that's more valuable than what the people who support you are going to say. And so then once you know the thinking of the folks that are going to take the case, you can start using the data to solve the problem, and you can start tweaking framing. You can start presenting different images of the information to see how it shifts the response of someone who hates your case. It's cool stuff. I love it.

‍

Nick Schweitzer (32:53):

You mentioned early on, you're talking about being grounded and being clear throughout all of this, and I think of, so I'm not a lawyer, but I think of myself. It would be a challenge for me. There's a lot on the line when you're doing this and there's a lot going on in your head. And I wonder, to what extent does having studied a case and having seen what jurors might be thinking, does that help you? Obviously in the strategy sense, but does it also help let you have a little bit more clearer perspective and just be like, okay, I know what I'm getting into here,

‍

Eric Fong (33:27):

1010%. And part of that is if you're going to make the effort to do a focus group, you better do it right? Because the focus group is only as effective as the information that's fed into it.

‍

Kevin Doran (33:39):

We know that one from some studies that come through. Yeah.

‍

Eric Fong (33:45):

Oh yeah. I guarantee I can equal the amazement you guys have with the lack of preparation this profession has plagued with. You can see the future folks, what's going to happen down the road? And if you're not ahead of the curve and you're not doing your job today so that when the trial comes, you're where you need to be, you cannot just fake it. You can't clump a bunch of information out and throw it out there and expect it to make sense. So Nick, getting back to your point, by the time I'm done giving you what you need, I have busted my ass. You're getting a highly polished, intensely thought through presentation, most importantly of what the defense is going to say. I am amazed at how much we love our cases and how blinded we are to bad facts. I spend a lot of time helping other lawyers. I'm like, well, what's the defense going to say? And they're like, I don't know. That's where you start your preparation.

‍

Alicia Campbell (34:42):

Yeah. So explain that. Explain what you do because you are absolutely right. We have the hardest time hearing, seeing, or addressing the things that defense attorneys see in our cases. What do you do to make sure you're always doing that, Eric, right? You sent very polished, great presentations where the defense is punchy and good, which is what it's going to be at trial. They're not going to lay down and just forget that they have some valid points like, Hey, your guy's going after his car. What did he expect was going to happen?

‍

Eric Fong (35:13):

Yeah, right. I think one in deposition, you can always see the roadmap of where they're going. And you should be taking notes in the deposition of, oh, here's what the defense argument is. You make a list. I have a creative room where I use poster board and I just have defense arguments, danger points, good facts, bad facts, 30 B six issues. It is covered with 20 poster boards of big topics. A lot of that is dedicated to the weaknesses of my case and respecting and being in fear of the defense's case, unless that's your work ethic and habit and you're willing to get out of the love of your case. I don't know how you do it other than if you're not doing it. You should start immediately today now

‍

Alicia Campbell (36:00):

To come up with the bad parts of your case. You do have talks with other attorneys. Do you do small focus groups? What do you do?

‍

Eric Fong (36:09):

Well, I've been practicing law for actually 30 years in the last five, 10 years. This has been kind of my big learning point revelation. I mean, now it's through. If you'd asked me this question 10 years ago, I'd probably give you a more thoughtful answer because for me, it's just common sense. So in this recent case of CPS, the government's overwhelmed. They're going to make mistakes. You can't ask social workers to end child abuse. And then of course, the character flaws of people who go through something like this are going to be homeless. Drug addicts don't have a job, right? It's hard to care for someone that isn't carrying in themselves and they're not picking themselves up by their bootstraps and living a healthy life for some people. So it's role reversal. I'm going to come back to role reversal. When we get so locked into our world and our view of the case, we lose objectivity and we become singularly focused on whatever it is that we think we want to see or what we believe, and then we start to love our cases so much. We're like, well, none of that shit matters because what I have is so great, I don't need to worry about that other stuff because the good facts is going to overwhelm all that. And we can explain it away. I'll tell you right now, if you're explaining anything, you've lost evidence that needs to be explained is not good evidence.

‍

Alicia Campbell (37:28):

That's great. Yeah, you're right.

‍

Eric Fong (37:30):

And most evidence at some level probably needs to be explained, and that's probably not your best evidence. Not to say we don't use it and incorporate it into the bigger picture of the case. For example, the convenience store case where a theory of liability was just the environmental safety measures that they needed to take, but it needs to be explained. It doesn't jump out at you as super obvious, but it doesn't mean we abandon that and don't use it. We incorporate it and weave it in like a seamstress to make a beautiful cloth that supports the clearer pictures of liability. And the real power of that evidence isn't explaining it to explain why they're negligent. It's showing that they're doing that to save money.

‍

Alicia Campbell (38:15):

You bring up a good point. You're absolutely right about all this. I think because we ran a case where a woman was driving her. She was driving from work, she worked at a prison and she was in a Department of Corrections van, and she crossed in a intersection and the truck driver was coming in his truck and he saw her took maneuvers to avoid her, but she kept coming and he couldn't understand why. So they ended up colliding. She ended up being killed. He ended up being seriously injured. So it was kind of weird. The lawsuit was from the truck driver to the Department of Corrections because she had their vehicle, that kind of stuff. And so we ran it through big data and sometimes you're like, damnit, because what had happened, they think is she fell asleep in the car, is she had worked an overnight shift and she was tired. And so we ran it through big data and we had all the reasons, everything you're talking about, all the explanations, accident, reconstructionists, and the damn jurors were like, the one thing I don't understand, why didn't he honk? And we all sat there and we're like, son of a bitch.

‍

(39:17):

Oh, it's always, you're exactly right. I mean, you get a bunch of people in a room and we're all thinking, trying to think creatively, but jurors are really good at that simple story. And I really take your point that then if you're a seamstress, it doesn't mean you have to lose all the other facts, but you better know what they're going to cut to.

‍

Eric Fong (39:35):

And then you can acknowledge that a lot of people would say, my guy should have honked his horn and he wishes he would've honked his horn. But you know what? He thought he was safe when he saw, but we can't go back in time and no one can expect everyone to handle everything perfect. At least now you can take that bad fact or that reaction and weave it into the reasonableness of what he did. So

‍

Alicia Campbell (39:59):

You're right. This most recent one, well, of the 45, how many of them ended up sitting on your jury? Do you know?

‍

Eric Fong (40:05):

Yeah, good question. I mean, it was a fascinating process because the judge was willing to let the defense's suggestion, all 45 people were brought in individually. So we spent two days with one-on-one contact with these beautiful people. And I'll tell you what, man, it was nuts. It was intense. You have a 70-year-old male who for the second time in his life is talking about the abuses that he suffered in a courtroom with strangers. And I'm just there. My heart is breaking for these people. So I'm reversing roles. What would it be like the defense lawyer's like? My guess is you can't be very fair to this case given doing what lawyers do, and there was no humanity in it from anyone, by the way, except the plaintiff side of those 45, I would say that four or five of 'em more, lemme think. I can still see all of their faces really clear.

‍

(41:10):

I love my jury and I have so much faith in the process, which by the way, I'll get going a little sidetracked. So many lawyers are afraid of jurors and they bring that fear with them into the courtroom and they're very tense and they're clenching their arms in front of their private areas. And because they're afraid. And if that's what you're bringing to that moment, you might as well quit settle for whatever they're offering because we can read each other's body language and emotion, right? There's a parallel universe of understanding that living creatures have and fear is certainly high at the list that doesn't need to be said. You know it. And so if you're not bringing the vibe of acceptance, love, and trust with a group of people as a trial lawyer, that's something you should think about. It is like what are you bringing into this moment? Is it fair and distrust or is it trust and compassion and love? So I love my juries and I can remember their faces.

‍

Alicia Campbell (42:07):

How was your client? Did she sit through the whole trial or what decision did you make about that?

‍

Eric Fong (42:12):

I brought her in at the beginning of jury select, and I said, I'm making the decision. Jessica Holden's not going to participate in the trial. This is Jessica. Jessica, stand up, say hello. Thank you, Jessica, you can leave. They never saw her again.

‍

Alicia Campbell (42:26):

Did you voir them on that to see if anybody was going to have a problem with that or did you just let it sit?

‍

Eric Fong (42:32):

Yeah, I think I mentioned it in opening. I don't think you need to explain much person who's been abused their whole life of the common sense of not having them sit in a trial where all they hear about is their own abuse and how they're making it up or how it happened. You know what I mean? The cruelty of making someone like that sit through a trial should speak for itself. And it's scary, right? Because lawyers are like, well, you have to have your client present. They have to testify. Are you going to, what I would say is if you as the lawyer can emote the deep understanding of that suffering of your client, maybe even better than having your client get up there or what have you, it's not enough to understand the suffering. You have to feel it. I can feel my client's suffering. Everyone can understand the horrors of abuse. Many of us have lived through it. Feeling can come out in your voice and your body language and what have you. That's powerful evidence. And the lawyer is the strongest piece of evidence in the courtroom.

‍

Alicia Campbell (43:30):

What was CPSs position in this case? They were just overwhelmed. Is that what they went with? Did they do any victim blaming? They did their job.

‍

Eric Fong (43:38):

They did their job. And you can't believe Jessica, because what she's saying is no doubt that she was mixed up and her memory, like every abuse victim they disassociate in recalling even what you got for Christmas as a five-year-old, right? You don't know. So you try to answer a question and be honest, and next thing you know you're a liar for it because you said something inconsistent before or something. I had major issues to deal with on credibility and consistency of the version of abuse and who abused her and how it happened. And so they were extremely confident that would win the day.

‍

Alicia Campbell (44:13):

Did you talk to any of these jurors afterwards?

‍

Eric Fong (44:15):

Yeah.

‍

Alicia Campbell (44:16):

Do you remember anything in particular about what they said about the case or

‍

Eric Fong (44:19):

Not really? I mean, I put so little. For me, it was just a impression of my gratitude to them for their service, the sacrifice that they made, the dedication they brought to their job. That was my message to them. They talked about the process and why they made certain decisions here and there, and it's probably what you can imagine, but it's such a complicated process that I don't think people are fully able to express accurately why what happened happened.

‍

Alicia Campbell (44:48):

Yeah, that's true. You said that you have a lot of trust in juries. Why?

‍

Eric Fong (44:52):

Because if I don't, I'm screwed. So first of all, I've lost a case just very recently that gutted me and it's a case you can't lose. I've lost so many cases, I couldn't even count 'em. For you guys, it's hard when you lay yourself out on the line like that and it means so much to you to do good for your client because at the end of the day, we help people. And if you fail in helping someone and you fail in your job and because you don't do a good enough job, that person suffers. It can be pretty traumatizing actually. People quit. People just like, this is not for me. I don't want to ever do this again. But what I've realized is that as long as I do my job the best I can today, whatever happens tomorrow is not on me. And I think what you guys see a lot of, I know what you see a lot of is you're meeting lawyers who haven't done the best they could have done yesterday.

‍

(45:43):

They're bringing stuff together that's not fully developed, not fully thought out, and just dropping in your lap and hoping it works out. And that's where our profession starts to show cracks because it's really hard to pull these cases off at trial. And if I do that and I lose, I should have lost. It's just fate because there's a huge amount of randomness to these results, and you start to realize that the system losses in some ways you got to lose to get it out of the way to get to your next win. It's kind of like a sports team is going to lose. But if you keep staying consistent and you consistently practice and you consistently do your job, you start to have faith in the system as a whole and in yourself. And that's a big deal is your inner confidence, right? The confidence of the person that's doing their job. Look anywhere you go, if you don't have confidence, you're not going to have faith in the system. You're not going to have faith in jurors. It's a psychological, maybe a life coach or someone could explain that better, but I have to trust the jury. If I can't trust a jury, then what's the point of any of this?

‍

Nick Schweitzer (46:54):

I mean, this has just been, again, because I'm not a lawyer every time I do one of these and every time we talk to somebody, it's just astounding the amount of, I don't think people outside of the legal profession really comprehend the amount that Eric you would pour into these cases that you do. It just seems like something that, oh, you're just sitting around and you show up to court one day and talk for a little bit and whatever happens happens. And I think if there are any, I don't know that we'll have very many non-attorney listeners, but if there are any, I mean, this is just really impressive to me just how much people care and put of themselves into this.

‍

Kevin Doran (47:34):

I totally agree. I think hearing about something that's a very human process is not very usual sometimes, and it's extremely enjoyable. I love hearing these stories, hearing about a person going through work and doing a job for other people, but then there's other people very involved in it deciding what's going to happen. And the stories are always fascinating and fascinating. And then just the challenges that come up while people are doing it. And so, I mean, hearing about this today was fantastic.

‍

Eric Fong (48:04):

I'm glad we were able to have a good energy and conversation. I really appreciate you guys. Like I said earlier, I'm indebted to the product that you provide. There's no way lawyers I couldn't without the objectivity of another people to help me get out of my particular focus. Yeah, we do sacrifice a lot. This is a brutal profession that will chew you up and spit you out, but it will also enrich you in just extraordinary ways

‍

Kevin Doran (48:32):

To connect something you were just saying about having confidence in your work. I think with this group in particular, when you're building software with people, you realize that yeah, over 10, 15 years you get better because more stuff. But a lot of it is just having confidence. You're like, no, no, what I'm doing right now, this is not a bad way to do it. And when you meet people who have what we call the domain of what that software is going to be about, it's always a real kind of it. It's not usual to come across people who really have that confidence in their work as well. They're like, no, no, this is how you're going to do this. And to be doing that with something that's new, that's not kind of something that has hundreds or thousands of years of how people do this kind of thing. It's like, no, this is kind of a newer way of how we're going to go about approaching a trial before it happens, and combining that with a confidence of, we know that we're doing a good job here. This is the right way to do it. It's really exciting for you guys who are using this data to do these cases and to hear about it. For me, I don't get a lot of chances to hear about how people are using this and affecting people's lives. So it's pretty cool.

‍

Nick Schweitzer (49:35):

I'm glad you're beating the verdicts that are predicted. I'm happy for you. My role is to try to make sure that we are exactly accurate. So for me, I'm like, oh, there's something wrong. We need to do a little better. But I am very happy that you at least exceeded what we thought you could do.

‍

Alicia Campbell (49:52):

Oh, no. We're really, really lucky to have you. And you know what? The other thing I want you to pitch, you should is taking this health day, you know how many lawyers either go from one trial to the next and they never give themselves a break? And I think you're exactly right to do that.

‍

Eric Fong (50:07):

Well, it's pretty simple. If the plane is going down and you're going to have a rough landing and the oxygen mask drops, don't put out first. You're no good to your child unless you take care of yourself. Put your mask on, love yourself. Go out for a walk and breathe some fresh air and with every step, let the earth tell you how much you're loved and how important you are. Right. Man, for me, it begins and ends with self-care. If you're not in a good place to do this stuff, you're no good to anyone.

‍

Alicia Campbell (50:37):

I think that's very wise and something that with the lawyer, how many cases, deadlines, I think it's something that's very hard for people to implement. So I think it's good that you share that with them. Absolutely. Right. Well, thank you Eric for joining us.

‍

Intro/Outro (50:54):

Thank you for listening to the Fred Files. If you found value in today's discussion, please subscribe and share this episode with your colleagues. To explore how Fred can transform your case preparation, visit us@focuswithfred.com. Produced and powered by Law Pods.