In this episode of Trial Lawyer Talk, Scott speaks with San Diego trial attorney Eric Ganci. Mr. Ganci tells Scott about a DUI case that had a profound impact on him.
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Transcript of Episode 47, with Eric Ganci
Scott Glovsky:
Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast where we speak with some of the best trial lawyers in the United States. We simply have great lawyers tell great stories from cases that had a profound impact on them. So let’s get started.
I’m very happy to be sitting with Eric Ganci who is a wonderful guy, an excellent trial lawyer who practices in San Diego, California, whose practice is really that of a trial lawyer and Eric does a lot of DUI cases, but that’s just one aspect of his practice.
Eric, thanks for being with us.
Eric Ganci:
Yeah, it’s my pleasure to be here, thanks Scott. I’ve been following your podcast for a while, so it’s neat to be on this side of the microphone.
Scott Glovsky:
Well, I’m glad you’re here. Can you share with us the story of a case that had a profound impact on you?
Eric Ganci:
Sure, there was a case that I just did a handful of weeks ago, right before I came here to the ranch. It had a profound impact because of the cases that lead up to it, and then that case. So, this current case that I’ll talk about ended up being a not guilty verdict across the board, which is always what we’re striving for, to win. But it comes on the back of three trials where I just got my teeth kicked in, to be honest. And factually, those cases were good cases and I don’t agree with some of, or all of those verdicts that came down. It came from a point of- I feel like those other three trials, they all happened very close in succession with each other, three weeks all together, so boom, boom, boom.
The knowledge of, I’m losing these cases, the jurors, some of the jurors in one of the cases stuck around and were making all of my points for me, like “You know, I think there was doubt here and here and here, but we convicted.” Just the realization of, what am I doing, and constantly trying to reevaluate, as we do within TLC and in life, what am I doing, how are the jurors perceiving the information, because they receive the information and they acted on it, they just acted completely in opposite of what I was hoping that they would act. So, it was the work to just try something new in this last trial I did.
I’ll just say his first name, his name is Shane, without disclosing the full case name, but with Shane’s case, and that was getting to work with- there was three buddies from San Diego, they’re all TLC. It was Elliot Young, Renee Galente, and Jeff Dingwall. I reached out to a small group, just to be like, “Hey, I need a little bit of brutally honest love. So can I share with you what I did with these three trials, because it was a very similar approach to all three of them and I just wanted to see from your juror perspective, how you connected with it. And that connection may be, “Hey, we like what you did, but we didn’t agree with you,” or, “Hey, we think that you’re a big jerk face and we totally don’t agree with you.”
So, it was the working group, just talking through some things. Basically the resounding thing that they were telling me is, “We get a sense that you care about what you’re doing and you understand what you’re doing and that’s proficient,” and all that stuff, “but you’re not telling us a story and it’s really hard for us to follow what you’re talking about because we don’t have a story to latch onto.” We went back and forth about what could be the story of the case, because factually, DUIs tend to be a little bit drier … there’s a stop, some field sobriety test, and then some sort of chemical analysis. Sometimes there’s stuff to play with with the field sobriety test because everyone can picture, “If I was doing that, how would I do that?” But in the endgame, in my opinion, DUIs are won and lost on the chemical number and it was just trying to portray that in the concept of, “How am I going to create a story within a DUI case?”
And I know I’m just talking, talking, so if you have any questions, just go ahead and pop in.
Scott Glovsky:
I will.
Eric Ganci:
So, I thought a lot about, I worked a lot with TLC about, “How do I get different stories?” And the stories can be how the police officer treated my client, or how my client was really nervous, or maybe had a really bad breakup and maybe there’s reasons why they were drinking and driving. Or maybe, there’s other stuff going on, but what do you do with the plain vanilla, the person just simply was hanging out with some buddies and drank too much and it’s a low alcohol level and the cops were really nice to my guy. What do you do with that? So then I started thinking, based on the work with Jeff and Renee and Elliot, maybe the story could be hearing the story for the first time. This was a concept that Marn had sent out.
Scott Glovsky:
Marn Shaluca.
Eric Ganci:
Yeah, she had emailed something out and it talked about hearing music for the first time. I’m obviously a big music person and I think about listening to lots of different styles of music and when I put on- Here’s a good example, sometimes in the morning, my girlfriend and I, we both go to the gym and sometimes I get back from the gym earlier than she does. Then if I start showering, we always play music at our place, so I’ll put on heavy metal, because I really like listening to heavy metal in the morning, and she comes in and it just sounds like a wall of noise. To her, heavy metal just sounds awful, the most horrific sound that you can hear in the morning. Marn’s sentiment through her email was just like, “Sometimes when people hear music for the first time, they’re just blown away and they can’t receive the information. That’s, a lot of times, what the jurors are dealing with in your case.” Especially with DUI cases, once you start cracking open the vault of breath analysis and gas chromatography and numbers, numbers, numbers, and ranges of uncertainty.
So, I started thinking that, how would I feel, if I was a juror, without having all the scientific background, that I have worked for, if I was hearing it all for the first time and I would want to be really evaluating the case. If I’m a juror and I’ve been sworn in, my first thought that I usually read in the jurors’ eyes is like, “Son of a bitch, I didn’t get out of jury service, but now I’m here, so I’m gonna take it seriously.” And I really feel like many jurors want to make the right decision. So they’re hearing the information for the first time and they’re really trying to see, moving the needle based on the information that’s coming out on the stand, the evidence they’re hearing, what do they want to decide. I really think that, although I think proof beyond a reasonable doubt is a really foreign concept, I really think that people want to make the right decision, and they know that they just have to be proven a certain amount before they’re going to convict somebody.
So the story became, if I was a juror in this case, and I’m hearing certain things, then how would I feel about that. Knowing what my decision is, did I get myself to proof beyond a reasonable doubt or not. That story got woven into- with- the opening statement was just stating very briefly about what was gonna be said and going through the field sobriety test. It just so happened that Shane did really well on the field sobriety test. The driving was awful, he almost hit a curb, per the cops’ testimony, then he almost hit another car, like drove into the car’s lane and it’s late at night and they see my guy leaving a bar. Then he gets pulled over and he does the field sobriety test, does perfectly fine, and then he blows, before arrest, .09 breath and the legal limit in California is .08, and then after arrest he blows a .09.
Hmm okay. So then through my cross examinations, then I’m going through what the officer did and then understanding what the officer said about the driving. My cross examination is turning to the jurors, which generally, I have a hard time, I know that Josh Karton talks about giving the story to the jurors, turning your body to the jurors. That’s been something that’s very difficult for me. I feel like I have an awkward time doing that and I feel like people are awkward when I do that to them, like “Whoa, buddy. Why are you standing in front of me staring at me, you weirdo?”
But this was the first time that I did that with the jurors through cross examination and through direct with my own expert, and I was just just asking questions like this: “If I was a juror, I would want to know, boom.” When I was saying it that way, then I would turn to the jurors and be like, “If I was a juror,” and you know, connect with someone, “I would want to know, boom.” Sometimes the jurors would be like, “oh,” and give me the eyeballs like, “Oh, that is a good question,” or “Yeah, I was thinking about that.”
So that became cross examination of just putting the story together. Then, I went through and, it just so happened that the police officer did- there’s a field sobriety test that can be done called the horizontal gaze nystagmus test, which is where they follow the tip of their pen with your eyeballs and your eyes only. It just so happened that the officer didn’t do the test the right way, two times he didn’t do the test the right way. Yet, his testimony- Oh, he did it wrong, and it was on video, bad idea.
So his testimony per direct examination from the prosecutor was, “I gave him the HGN, the horizontal gaze nystagmus test, and in doing so, I saw all the things that I’m supposed to be looking for.” But on the video, there’s no freaking way that he could have seen those things because he did the test really wrong, so there’s a lot of science about how you’re supposed to do the test and if you don’t do the test, then it’s an invalid administration of the test and the officer just didn’t do it the right way.
So then in my cross examination, this is TLC stuff, you know, reversing roles with him, who is he as a police officer. He was like campus police for a little while, now he’s like a sergeant or someone high up in the food chain within the police department, within San Diego PD. He wants to do the right thing and he’s very polite to my client, and he parked his car instead of towing it, so he did a lot of things that were right. So he wants to do the right thing, but he’s in a position where he thinks that he’s doing the test the right way and he’s training other officers. If he knew that he was doing it wrong, would he change how he’s doing it? Because it’s not just him doing it, in this particular case, it’s like, all the cases that he’s doing, all the arrests that he’s doing. Also, all the other police officers in their context that they’re doing it. Yo, so that’s a big deal.
Then I talked him through how you’re supposed to do the test and then locked him into the, “You’re telling us, under sworn testimony, that you saw all six clues. You saw all the clues for HGN, yes yes yes.” Alright, then I showed him the video. Why he hadn’t watched the video ahead of time and why he was agreeing with me with everything about the proper administration for HGN when he hadn’t done it, I don’t know. Unless he was just scared or not thinking properly, but he said all those things under oath and I played him the video.
Then it became “You already told us how you did that,” and again it turned into the story. “If I was a juror,” and this is my question, “If I was a juror, I would be wondering why you told us that you saw all the clues, when there’s no way that you could’ve seen the clues, so can you explain that?” Then, you know, that was a difficult question for him to answer. Then the next question to ask is, this is giving him the option to really better himself because I really feel like he wants to be better. I said, “Now that you know how to do this test the right way, will you go back and revisit how to do it?”
Many lawyers would say, many lawyers outside of TLC would say, “Oh tut, tut, you can never ask that question. You can’t ask that question.” In TLC that’s BS, ask whatever you want to ask, it’s part of the story. Of course, the prosecutor’s like “Objection!” and at that point I don’t care if he answers the question or how he answers the question because if he says “No, I’m not gonna revisit it,” then he’s a jerk. If he says “Yeah, I am gonna revisit it,” then he still did it wrong for this particular case, but now I’m not being a jerk to him and he gets the chance to really be better. The judge overruled the prosecutor’s objections. She said, “You can answer it.”
So I got a chance to ask the question again, because all it did was amplify it. This is why Bosch teaches, he did this thing years ago that I saw him do, when people object, I used to hate objections, but now I just love it because all it does is wakes up the jurors and points out, “Hey, they’re pissed off, they don’t want this question answered.” Now they’re going to answer the question the jurors are like, “What’s gonna happen?” Then I get to re-ask the question even though I didn’t have to, but that’s the theater. So I get to re-ask the question, then he answered the question, he’s like, “Yeah, I’m gonna go back and revisit how I’m doing HGN.” That was good of him to say that.
Then there was some stuff about the chemical test that, in California, the alleged crime is, “What was the alcohol level when you drove?” That’s one of the part of a DUI. So this was considered a rising defense case and there was a lot more with math about ranges of uncertainty. Using all the ranges he technically would’ve been a .081% alcohol, but that’s like 30 minutes after driving, so the question is, where was he at the point of driving.
Then I had my own expert explain how there’s so many unknowns with alcohol absorption and elimination and all that kind of stuff, and be very credible about it. It was TLC with my expert, getting him off the stand, having him be very professorial, using chart, talking us through different diagrams, and really just trying to make it like a dialogue and making it like a DUI 101 collegiate class, in like 45 minutes. But getting him off the stand to show the jurors, “Wow, at least something’s interesting that we’re gonna learn a concept in a different way.”
What was neat was that when I did the closing, rolling through the story I just told the jurors, “If I was in your shoes, in your seats, and I’m listening to this, this is what I would be feeling.” So I started off with, “We know the presumption of innocence,” I started off with the bar where the jurors are sitting, “This is presumption of innocence and proof beyond all reasonable doubt is way back where the wall is.” They need to get you there in order to get a conviction on this case. “The first thing that I heard from the police officer was, the driving sucked. If you believe the police officer, the driving was awful. I’ll be honest that I’m hearing that and I would take,” I moved about halfway down, I would probably put myself here because I know that he was arrested for DUI and I know that charges are brought and I know that this driving can be indicative of someone that is possibly impaired by alcohol. So I would put myself here.”
Then I rolled through each of the field sobriety tests, “So then we learned about the HGN and when I heard it from the prosecutor’s end, she said he saw all six clues, that’s all the clues, that’s consistent with alcohol being over point away, that’s consistent with being impaired by alcohol. Then I would maybe be thinking, taking a step back towards convicting this guy. But I would want to wait just a second because obviously this case is here for a reason, we’re at trial, maybe there’s more to it. Then once I heard that HGN was done wrong and at no point in this trial did the prosecutor ever concede that point,” then I’m telling the jurors, this was my closing argument, “Once I’m hearing that, then I’m definitely not moving towards guilt and in fact, maybe I’m taking a step towards innocence.”
Now I’m starting to trust the process a little bit and that was a different way for me. Like the other trials that I did, I have a real problem when people are saying inaccurate stuff for the science in DUIs and a lot of times, the arguments become, “They didn’t tell you this, and I had to bring that out and imagine if I hadn’t brought that out.” I think that turns people off, just because I’m a tall dude and you run the risk of a super smarty pants, know-it-all. It was a different way of saying, “This is what I’m hearing if I’m a juror; I’m just trying to evaluate everything and if I’m not getting accurate information, this is how I would feel about it.” And that’s honestly how I would feel about it.
Then I went through the other field sobriety tests, it was hands down the best performance that I’ve ever seen on video or otherwise with field sobriety tests, even people with zero alcohol in their system. So I definitely wouldn’t be moving back towards guilt, maybe I would be staying still or maybe I would take a step towards innocence. And then talked about the numbers. The numbers that we have, the breath numbers in this case, is there a possibility that he could be over a point away. Yeah, is there a possibility that he could be under a point away or at a point, yeah, that’s reasonable. That, again, wouldn’t get me to guilt, so that became the entire story for the trial is: if I were a juror, what would I do?
The jurors, afterwards, it was so striking because they stuck around and they didn’t care at all, they were closing the loop in building the trial and all that stuff we’re taught here at TLC. They were really champing for my client. There was like ten jurors that stuck around out of the twelve that we get in California for misdemeanors and felonies. They were all saying all the arguments that I had given, all the story that I was telling, but then they were also implementing their own parts of the story about the bad driving.
Usually, jurors would be wanting to burn someone at the stake for any kind of bad driving for many good reasons, but these jurors instead were saying, and I couldn’t believe this, they said “Maybe he was driving that way because he was on his phone.” I was like, most people, if they even think that you’re on your phone, then they want to burn you at the stake and then they want to take you again and burn you at the stake and another stake. The fact that they just didn’t care about that. There was a handful of jurors that really didn’t believe the police officer because he had already lost a lot of credibility with not doing the HGN eyeball test the right way.
It was a really proud moment of taking the TLC methods and really trying to implement something and having it work.
Scott Glovsky:
Well, it’s interesting because we tell our trial stories and the jurors have to hear them and understand them. So a lot of our colleagues will reverse roles with the jurors and try to feel, throughout the trial, what the jurors are receiving. But you’ve built directly into the heart of your case, your trial theme, the jurors’ perspective, and that’s brilliant.
Eric Ganci:
Thanks, man. Yeah, and it was, it’s just a collaboration. I mean having so many wonderful TLC people just around, it’s like a group effort with everything.
Scott Glovsky:
You mentioned earlier that you feel often, in the past at least, uncomfortable looking at the jurors and talking to the jurors. Where does that come from in Eric Ganci?
Eric Ganci:
Let me see if I can break it down because I don’t know that I’ve ever answered this question. I don’t think it comes from a point of looking at people or presenting or talking with people, but it comes from a point of, when I’ve done it I got body language and just a vibe that people really didn’t like it. It comes from a point of, you know, I have a teaching background, and knowing if I was teaching a concept and having a feeling of either someone’s not taking in the information the way that I would want them to or they just really aren’t vibing with what I’m doing. When that happens, you gotta change something because you want them to receive the information, so it just comes from that background, just knowing that something’s not working.
Scott Glovsky:
So, what changed? In other words, this time, when you did the same thing, it clicked.
Eric Ganci:
Maybe it was that I’m trying to talk with them. I have a bad habit and I have had a bad habit of talking at people a lot, especially with all the science stuff. But this time it was really just trying talking with them, but also for them. Because you know, the jurors just sit there and most judges don’t let them ask questions. But maybe it was trying it that way and just having it kinda be like, you know, TLC teaches that you’re leading the tribe and maybe I was the leader of the tribe at that point.
Scott Glovsky:
It almost sounds like you were connected with them in advance by figuring out what they’d want to know, what they’d want to learn, and what they’re feeling and why they might not connect with someone the way you were presenting before. You went through a process of connecting with them so that when you’re in the courtroom, you’d already sat in their shoes and maybe you had the confidence or the connection to be able to just tell the story.
Eric Ganci:
Yeah.
Scott Glovsky:
Now, you also mentioned music, to sort of illustrate the concept of how people have to be ready to hear something and to focus on actually how they’re hearing it. I know you’re a drummer and a musician. How does your musicality influence or affect your lawyering?
Eric Ganci:
Well first of all, let me say thank you for calling me a drummer and a musician. It’s nice to hear the terms synonymously, drummers can be musicians. It comes from an angle of performance and it’s again, how people are receiving the performance. There’s been lots of times where I’ve done, like here’s an example: The few times where I get to do drum solos, I say few times because I haven’t done a drum solo in a while because I play in a karaoke band, a live band karaoke group and people are up there to sing, not to hear the drummer, wipe it out.
I’ve always been in tune with, when I’m playing a drum solo, how the crowd reacts to it and so many times the crowd would react, either they’re just like “Oh drum solo, tune it out.” And they’re talking to their buddies and just having beers or ordering more beers. And I’ve always just, that creates an energy in the room and it definitely creates an energy within me. So, that’s one piece of it, just seeing how people are reacting to whatever kind of performance you’re giving them, or teaching them, or whatever. It’s also a noise thing, too. I know that when I hear drum solos or just tunes in general, if it’s a lot of noise coming at me without a melody or something that I can latch onto, then it’s just too much, my brain just checks out at a certain point. So there’s just a lot of different musical concepts.
We did a piece, I get the privilege of editing the Warrior article where we talk about music and our TLC connections with music. One of the things that we wrote on, and some people wrote in on it, was talking about silence in music and Jessie Wilson talked about this topic. That’s so true, when you’re presenting, you’re just talking, sometimes people just need to hear silence. It doesn’t always need to be a super dramatic pause after a big point that you’re trying to make, but sometimes people just need to hear a little bit of a break, kind of reset, recalibrate their minds, and then be ready for the next thing that you’re about to talk about. Yeah, lots of different musical concepts, but also pacing and phrasing. It all goes to how is the audience perceiving, taking in what you’re giving them?
Scott Glovsky:
Say more about that, pacing and phrasing.
Eric Ganci:
It’s in line with hearing a melody with something. Let me see if I can try to appropriate this. Being able to hear things in soundbites so you can remember it and react to it and if there’s going to be a reaction, then pausing and then letting that reaction sink in so that you’re not just like vomiting all over their face. It’s also akin to comedians and when you hear comedians talk about when they play different rooms if they do their stand up act in different venues. That sometimes there can be a delay with how they’re pitching the joke or hitting the punchline or whatever versus how the audience is reacting to that. So there’s pauses, there’s just stuff you need to be aware of. It’s just all in line with if they’re able to hear what you’re saying, can they hear the melody, are they connected to the melody, and then give them a little bit of time, maybe, to appreciate the melody. So those are just a few musical concepts that I can think of right now.
Scott Glovsky:
It seems that there’s a theme in a lot of what you’re talking, relating to listening to the jury, or listening to the folks that are receiving the messages that we’re putting out, whether as a musician or as a lawyer, but tuning in and paying attention to them, while you’re communicating with them.
Eric Ganci:
Yep, exactly.
Scott Glovsky:
Eric, we get questions all the time from young lawyers who are seeking advice and what they can do to become a better lawyer. What advice do you have for young lawyers out there?
Eric Ganci:
Open up your hearts, open up your minds, really, really be open to learning new things, to trying new things, to failing at new things, because you learn a lot more from failure, usually, than you do with winning, or at least, I do. To getting a group of friends, colleagues, family, whatever, focus groups, that aren’t going to bullshit you and just really shoot straight with you because if someone’s just singing your praises all the time, it may or may not be good. You really need to hear brutal honesty about how people are really reacting because when you get jurors or you get judges, especially whenever they get to put their thoughts in writing where they can commit it without you being in their presence, then… Yeah I just lost my train of thought.
Scott Glovsky:
We’re talking about advice for young lawyers.
Eric Ganci:
Yeah, so you just need to get used to how people are really reacting and that are going to shoot straight with you because that’s what jurors are gonna do, that’s what judges are gonna do. People have an easier time writing things down as opposed to telling it to your face even if they’re going to write down a verdict that’s like a defense verdict or guilty verdict or whatever. They may be doing that because what you’re doing is not really gelling or not working for you or isn’t true for you, but just get people who are really going to be straight with you.
Scott Glovsky:
Well, Eric, thanks so much for joining us. You’ve really provided a lot of insight and guidance and wisdom. Thanks on behalf of your clients, folks you teach, and thanks for being with us.
Eric Ganci:
Hey man, I appreciate you doing this podcast and bringing us all together. Thanks Scott.
Scott Glovsky:
Thank you.
Thank you for joining us today for Trial Lawyer Talk. If you like the show, I would really appreciate it if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.scottglovsky.com and I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials: A Primer for Lawyers, that’s on Amazon. I put the book together based on twenty years of suing health insurance companies for denying medical care to people and it provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.
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