In this episode, Scott speaks with Atlanta attorney Joe Fried for a second time. Mr. Fried tells Scott about addressing weaknesses in a case without succumbing to fear.
Transcript for Episode 34, with Joe Fried
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. I’m very happy to say we’ve now had about 30,000 downloads and I’ve got some wonderful feedback from you with ideas, and suggestions, and comments. If you have an idea for someone who might be a great interview or a great trial that we should discuss, please continue to reach out to me. I can be reached at www.scottglovsky.com. That’s S-C-O-T-T-G-L-O-V-S-K-Y.com.
Today, I’m very happy that we’re talking with Joe Fried again. Joe’s back because he had an amazing experience, an amazing result in a trial last year that I thought we could all learn from and in fact, we all will learn from. He’ll take us through how to address some of the weaknesses in our case that scare us. Rather than letting them scare us, he gives us a guide post on how we can deal with them, so let’s go.
I’m very, very grateful to be again sitting with my friend, my mentor, teacher, phenomenal trial lawyer and phenomenal human being, Joe Fried. Joe, this is the first repeat guest that we’ve had and I’m really honored that it’s you.
Thank you. I mean, the introduction makes me feel way overblown, but I’m tickled pink to be here. I’m hearing such great things about what you’re doing, and thank you for having me back. It means I didn’t mess up too bad the first time.
I’ve heard about an amazing, amazing story of a case that you tried not too long ago, and I was hoping that you might share with us that story.
Sure. I’ll tell you about it and please ask me the questions that come to you. The story of this case actually begins way before this case. It starts about, I don’t know, many years ago when I first started to represent people who I felt that the jury outcome might be determined not based on the merits of the case but based on who the client was and specifically that they were clients who in the venue were the cases were going to trial were sort of a look down upon group. Maybe it was because of a racial aspect of things, maybe a national origin for instance. Maybe in one case in particular that I work very long and hard to figure this problem out or had to deal with the problem, was a case where I represented two Hispanic people. One was documented and one was not documented.
I was in a location where that was going to matter a lot or I felt like it would. I struggled with how to deal with that. The trial that you’re asking me about is a trial that I was asked to be a part of by my law partner, Michael Goldberg who I want to give honor to in this story because the case is his case and he was kind enough to ask me to get involved in it. I wish he’d asked me more than about a week-and-a-half before to get involved in it so it was a last minute thing for me. The reason he, I think, asked me to be involved is because of all the time that I had spent with this issue.
The case was pretty basic in a sense that there it was a truck accident case which you know I do a lot of and it was a case that ultimately the defense admitted liability for their driver running a stop light hitting our client. There was a brain injury and that’s what the case was about. In some senses, the case wasn’t that difficult in terms of its issue but what complicated the case a lot was that we represented the man who was brain injured was of the Muslim faith. He was actively Muslim. I hope that doesn’t offend somebody for me to say it that way, but he was very outwardly Muslim.
His family, the women wore traditional garb where their faces were all covered. You could just see their eyes. Maybe a part of the bridge of a nose but that was about the extent of what you would see. Their full body was covered really from head to toe. You could see their hands but that was about it. They were very spiritual, very actively involved in their religious practices and this was in a county in Georgia where it is Newt Gingrich’s home county.
It’s a county where there’s not much diversity, and frankly it’s a county where I was concerned that being Muslim was not only not helpful to the case but that was such a potentially polarizing issue that jurors would never be able to see past that in order to give justice to the actual merits of the case that they would see it as just … or they would be influenced by that. I don’t know how to say it other than I’m trying to be careful in a way I say this but I hope that your listeners understand where I am.
I was concerned that prejudice would play a huge role and so much so that there wouldn’t be justice ultimately done if justice means being color blind and being blind to what people’s national origins are or religious beliefs are. That concerned me. I’ve done a lot of work, as I said for over a decade thinking about these issues, how to deal with them and that’s why Michael asked me to get involved. That’s the backdrop for what happened and how I got involved in the case. I was tasked with how do we deal with that piece of this trial which was a big part of it?
I mean on some level, most lawyers would think, “I’m dead on arrival. How can I represent an outwardly practicing Muslim in the south in 2016?”
Yeah. I don’t know. I don’t know what most lawyers would do but I’ll tell you my fear was once upon a time before endeavoring on some of the things that you and I have endeavored on together through the ranch and the Trial Lawyer’s College and the things we’ve done and you’ve been a part of. I might have chosen as a lawyer to just try to ignore this issue and almost pretend to say to myself my dialogue might have been something like jurors aren’t supposed to think about these things and so we better just not talk about it, and if we don’t talk about it then it’ll somehow be okay at the end.
What we’ve learned is Don Clarkson who’s a special person in my life, a psychodramatist who I’ve been a student of for a long time says if you can’t talk about something, that’s really a problem. That’s the reality. The reality is if you don’t talk about it, it doesn’t mean it goes away or it’s not dealt with. It doesn’t control your outcome, in fact it may, and if you don’t talk about it, you have no influence over it.
The challenge is how do you do that in a way that’s fair, and appropriate, and empowering, and not some race card or some guilt trip or some … How do you do it in a way where people are jurors really can feel good about honoring the system that we’re a part of instead of having that control, something in the background and maybe even having them feel like they succeeded in creating justice by having that influence them if that makes any sense. I mean you see where I’m going?
To challenge the agenda but to challenge the agenda in a way that’s appropriate so that at the end of the day, we get real justice done as opposed to justice that is seen through the lens of somebody’s national origin, color, creed, religion, et cetera. Personally, I don’t feel that should play any role in what we do and I know that our system is one that doesn’t believe that but anybody who’s lived in America for any length of time and has followed anything related to jurisprudence knows that justice really has not been color blind, and by color blind, I’m not only talking about race now but religion and even sexual orientation and even whether somebody is good looking or not good looking or they’re clinically obese or skinny.
All these things that really shouldn’t come into play when it comes to justice in a court room, it does too frequently and so our challenge as lawyers should be how do we deal with that in an appropriate way so that we don’t allow those kinds of things to interfere with justice, true justice, true blind justice.
How do you approach this case so we can have before trial with this issue at the forefront?
Let me first say I would not ever tell somebody to start an issue that’s this significant a week-and-a-half before a trial. The only reason that we were able to succeed with it with only that short amount of time is because this has been a life-long 15-year project, 10 plus year project for me and multiple trials that have helped me understand this issue and struggle with the issue over a long time.
I’ve been tasked with this a week-and-a-half or two weeks before trial and not have that background. I don’t think that I would have had the mental capacity to come up with a way to deal with it that quickly. This was something that evolved over a long time. The answer to your question … Let me paint a little bit more picture for you of what we were facing because as I started to get ready for this, the way the issue started to materialize is not only where we had the outward issue of these are going to be the people for whom we’re going to have to ask a lot of money or we plan to ask a lot of money for, but then certain things about their religion started to come into play in the preparations.
We met with the family and the family was absolutely convinced from the tenants of their religion that Allah would cure their father and that their father would be restored and as a result of that they felt that it would be blasphemous for us to stand up in front of a jury and say to the jury that this is a permanent condition that will never go away, that will always be there. Which by way was what the doctors were going to say.
We were in a situation where we started to struggle with how do we tell the story? How do we do that? How do we put up a doctor and then not ask the question? Is this ever going to get better or not? The clients ultimately told us, “You will do that.” Since we had moved to exclude the client from the courtroom, because he’s brain injured and because it’s difficult for somebody to sit in a courtroom when you’re brain injured and he was significantly brain injured.
He wasn’t going to be sitting in the courtroom. The family told us they were actually going to post this entry in the courtroom and if we violated this instruction that they gave us that we would be summarily fired, the case would be dismissed and that’s how serious they were and so here we were with obviously obligations to the client but also obligations to the truth and to the courtroom and to honesty. I’ll be honest, a desire to get a big number. We weren’t going in for a small number. There’s the ego piece of the lawyer, namely me. I don’t want to ignore. It’s just part of the story. You see the challenges as they start to evolve how are we going to do this?
The client essentially has told you that, “I will fire you if you put on any testimony that the injuries are permanent.”
The client said to us was that they did not want their religion to be made light of and that their honest belief through their religion was that their dad was going to get healed through a spiritual process not through a medical process. They didn’t like the doctors, they didn’t believe in the life care plan. They weren’t going to do the life care plan. What they instructed us is that they did not want us to represent to the jury anything that would be inimical to their spiritual belief. That was a challenge.
We had all these challenges and the first one of course is just the issue of putting on a case for Muslim people were you’re asking for a lot of money in Cobb County, Georgia and that on top of that you had this other peripheral things that started to come in. To talk about it, I think we can talk about be in kind, in those two ways. What we’re trained to do is to … Through jury selection process is whatever is a concern to give a voice in jury selection and to try to encourage honest discourse about it and see where people really are and to encourage an outward exchange.
My law partner did handle the jury selection process and he tried to do that. He’d ask questions for instance like, “Does anybody here have concerns because the plaintiffs are Muslim? Does anybody have concerns that the money, if you give money will be used for some purpose that’s anti-American or that leave the country?” things along those lines. I mean essentially trying to see if people would talk about potentially their prejudices. Not that that would necessarily exclude the juror but at least give some dialogue about it.
The jury was entirely closed off to they would not answer questions. “Does anybody here worry about terrorism?” No, answer. No hand go up. “Anybody here worried about money leaving the country?” Very scary. In fact then, no hands going up turns into cross to arms in front of chest. Those are things that us lawyers are trained to look for we don’t want to see. Michael tried several ways and really couldn’t get anybody to open up at all. Nobody was owning the issue and it was upsetting frankly to me. I thought Michael did a fantastic job trying to get a discussion going. The jury would not go there and he couldn’t get a real dialog going at all.
That was a problem. I’ll jump to the end or to the solution, to the degree that it’s a solution. What we did get in the jury selection was a commitment from the jurors that they would not, that they would follow their oath in the case and that they would not let any feelings of prejudice or any feelings are inappropriate under the law interfere with their duty under their oath. I think that’s huge. I think it’s something that our lawyers, our friends and colleagues out there don’t spend enough time really thinking about and honoring because jurors take this oath.
That really became the key through this decade-and-a-half long journey then I was looking for a way to talk about this. It became the key to how to address it with the jury. The way you address it is essentially to inventory all of the things in a case that are perfectly normal for people to think about. In this case, it might be whether they admit it or not prejudice, whether they admit it or not a fear that money may leave the country, a fear that maybe a terrorist group would get their hands on the money, whether the client wanted it or not because that’s part of their culture that we don’t understand. All those kinds of things.
I would invite people listening to this to make their own inventory of what their fears would be in a case like this that the people are going to testify through burkas and they’re going to be talking about Allah in an open court room and Cobb County, Georgia. I mean whatever the issues are make a list of them. Then ask the question, outwardly, are those things appropriate under your oath to consider based on what the jury charges are going to be. The answer is no always because the law tells us very specifically that we’re supposed to be color blind, we’re supposed to do certain things, we’re supposed to consider, and then other things we’re supposed to not consider.
It provides a way to say to a jury, it’s not you. You’re not asking people to change their opinions about anything. Their beliefs about anything because if we ask them to do that, they won’t and they will resent us for asking. How about if I can give honor to their feelings and say something like, “I’ll just tell you in this one what I did is I stood up and I said to the jurors, in closing argument that I had a confession to make to them, that when Michael was doing jury selection with them and asking them questions about Muslims and terrorism.
Then when no hands went up that I was pissed at them, I was angry at them because I didn’t think that they were being truthful. It was upsetting to me that they wouldn’t be truthful. I’ve trained myself that when I have that strong of a feeling and the reaction towards something that I should look that I should look inside myself and check what’s really going on. Then when I did that, I realized that if I would have been on the jury, during jury selection, if I was being honest, I would have raised my own hand because my truth is that although I don’t want to be a prejudice person, I am.
If I’m in an airplane, and I see somebody dressed like my clients dress standup at certain times in the flight and go to the overhead bin, I can’t stop my eyes from watching, and I can’t stop my heart from beating a little faster. That if my truth is, I would be concerned about money leaving the United States. I said, “I’m maybe ashamed of how I feel in some ways but it’s how I feel. If I were out there, I would need help, I would need … If I hadn’t raised my hand or whatever and I found myself on the jury and those thoughts started to invade my mind, consciously or unconsciously, I want to make sure, I wasn’t violating my oath.
I would need all my brother and sister jurors to help me make sure that I didn’t violate my oath. Insert here all the things that it’s perfectly normal to think about so it would be perfectly normal to think about some of these things. What’s the money going to be used for? Where’s the money going to go? Who’s going to control it? What’s going to happen? What about this? What about that? Perfectly normal to think about those things and I’m not asking you or telling you that you’re a bad person if you think about any of those things.
What I am going to tell you is that if you allow those things to influence your jury decision, your verdict, then you will have violated your oath. I don’t think anybody here wants to do that. I told them that it would be the worst thing for me if I were on the jury is to wake up two or three days later after the decision was rendered and discover that I had in fact violated my oath, that I had in fact allowed things to creep in that I wasn’t allowed to and that’s not the way I would want to live afterwards, and that in some ways a trial like this could be nothing more than an effort by one party or the other to try to get someone to violate their oath.
In doing this, my … I don’t like to use the word strategy but my thought that’s evolved over this years and years of preparation for this and trial and error is that the effect is that it tends to have the jurors want to work hard not to violate their oath. They do that, they prove that they haven’t violated their oath by doing justice in the case. I present to them an option of what justice is as a large number and we could talk about that maybe in some other interview.
That’ll be the trilogy.
Part number one in this whole thing is how do you deal with the issue on the front end of you got whatever your issue is that makes a client a victim if you will more, maybe not likable. Maybe not the kind of person that they jury left to their own devices would choose to give a big number to. This is a way that I found it may not be the best way but it’s been a way that has been effective for me to rely upon the oath to do that.
You tuned into your own open and honest feelings and then reverse roles with the jurors, ensure that in closing argument?
You encapsulated really, really well. I think the thought process … First there was the exploration that took a long time and how do I really feel about these things? Then there was the work that took years for me to have the courage to stand in front of a group of people who I need to respect me and to openly say to them what my truth is. I told them, I said, “I’m going to tell you this. I feel embarrassed saying it. I’m a lawyer. I live in this community and I’m about to admit to you publicly that I’m prejudice, and I’ve got some issues with some stuff.”
That’s not easy for me and for me never, it never would have come naturally. I would have wanted to hide those things in my past through all the work that I’ve done at the Trial Lawyer’s College and through psychodrama and things that you and I have been involved in for a long time. I’ve learned that being willing to be vulnerable, if you can find the courage to be vulnerable that people don’t shun you, that will actually listen to you. That’s a corollary. It’s almost a parallel process to what we just did with the jury just to say, “I’m going to be vulnerable with you.”
Hopefully I’m demonstrating honestly that they can trust me. I’m not playing a game with them. This is not a formula for a game. This is the truth. This is my truth and I need you to explore your truth and together we want to do justice and so there is a role reversal process in there. There’s also process where you are modeling for the jury the conduct that you want and expect of them. I modeled for them that it’s okay to talk about these deep things in public. I had a courtroom full of people.
It’s okay to talk about them and people won’t shun you if you do and that it takes courage and I told them it’ll take courage to explore yourself. There is. There’s the things you said about role reversal and then sharing but there’s also the part that I think is very important and sometimes not given enough attention in what we do and that’s our work begins way before the courtroom. I mean we are doing role reversals in the courtroom but there’s tremendous value and the time that we spend in psychodramatic exploration of what our true feelings are.
Through that also comes the confidence that when you share vulnerably, you’re not shunned. It’s the message that I want to present to people through this is take the time to explore whatever the issues are in your case that you feel make your case ugly, whatever that means in your case or makes your client ugly, whatever it means in your case. What I mean by it is a peripheral issue or issues that preclude the jury from justice. They’re going to be blinded by that and never reach the merits.
Explore how you really honestly feel about it. What’s your real truth? Not your politically correct truth and the more … I’ll tell you the more courage you have in presenting that as honestly as possible, I mean just raw honest. If you can find the courage to do that you will be rewarded in ways that you don’t appreciate until you go through enough of this to see it. It feels great to be able to deliver that much honesty into a situation. It feels great to do that. I’m proud that in this particular case, our clients were … Justice was done.
Before we finished, I should say that should address real quickly how we did deal with the issue of the client instructing us not to break their religious reality. What we did was we again brought honesty to it. The way I did it is, and Michael as well is we shared with the jury that it was very, very important to our clients that their spirituality, their religion was super important to them and that they would never want anything contrary to their religion to be presented to their benefit and that we told the jury and it came out in the direct examination of the brain injured person’s daughter for instance.
You don’t believe in the life care plan, do you? No, I don’t. From your position, are you ever going to do the things on a life care plan? No, we will not. We will not need to because Allah will help our father and restore him. Not only restore him physically and mentally but even better than he ever was before. That will be his reward. It’s beautiful. It’s a beautiful thought. It’s my prayer that it’s the truth. We present it very honestly how important it was to them. We told them the doctors say this. The clients say this and you jurors must make a decision, but we’re not hiding from our client’s truth is. We ask you to honor them.
It was interesting that the jury at the end of the day, they awarded a big number. It’s not important what exactly the number was. It was a big number but interestingly they awarded almost to the penny. What we asked for less what the life care plan was. Thankfully we asked for enough. That more than takes care of the client but they awarded … Essentially, you could look at the verdict. We never asked the question of the jurors, but you could look at this verdict that they gave us exactly what we asked for.
Believe it or not, we asked for a specific number in opening. We told them exactly in opening what we wanted. They awarded us exactly what we asked for less essentially of life care plan. In some ways you could look at this and say the jury did honor to the client by awarding them everything and even honoring they’re not going to do, they don’t believe they need the life care plan, they don’t … We’re going to cut that out in a way that they can look at this verdict and say, “Yes, they did not honor to it.” I hope I said that clearly.
Certainly, that’s beautiful.
The client ends up with a number that can take care of the family and him very, very well but they can also go forward knowing that the jury did not … if they chose to, they can look at it and say the jury didn’t … They honored us. Our clients, I will tell you at the end felt that the number didn’t do as much honor to their spiritual feelings as … They were upset with us that the number was higher than they thought it should be. They were worried that it didn’t reflect their spiritual truth.
In some ways we failed them. It’s one of those situations and I know other people who are listening this have had this in their careers whereas the lawyer, you feel like you’ve done something phenomenal and you get this lawyer accolades and you get to speak to people like you on these podcasts. My client really, at least in part was not thrilled with the result.
Which seems somewhat amazing. I mean there’s a lot of contradictory things here on one hand, you have a result that is absolutely gigantic by anybody’s standards. You’ve achieved really the best possible home run result by any lawyer in the nation standards. You’ve loved your client, you’ve cared about your client, you’ve honored their story and yet on some level, the clients feel that you have haven’t. How does that feel?
It doesn’t feel good. Obviously I always want my clients to feel good and certainly heard and respected. I know as a human and a lawyer that I did a good job for them and I take comfort knowing that they’re taking care of and that things are good and all that kind of stuff. I’m happy that I feel like I did do honor to them, but I also admit that I wanted to give them honor. At the same time, I wanted to get a big number so I’m just being honest with you about it. It’s a great lawyer accomplishment but then … I mean I don’t know how to say it but you want your clients to be happy at the end.
I don’t want this question to sound wrong because I know you and I know who you are and everyone who’s listened to this story knows who you are but as a Jew, and not only as a Jew but as a Jew whose father was instrumental in the city of Israel. Did you face any backlash or any negative comments in the Jewish community?
No, I didn’t. I did have struggles though. I mean you’ve identified some of the reasons behind where the origins of my feelings are about … That I was in touch through this. The feelings where some of the prejudice has come from. I’m sure they have their origins and at least in part through some of that background. Also on top of being Jewish, I grew up on the south. There’s just a lot of prejudice in the south. There just is. I didn’t get backlash. I’m sure there are lots of mixed feelings about … The result got some press and that result didn’t … All kinds of comments that I couldn’t help myself but sit and read and look at.
Comments about that I had played the race card or something along those lines which I’m changing the real question that you asked. There were people who voiced their concerns, the very concerns that I raised where is this money going to be used? How is this money going to be used? I addressed each of those issues in the trial very openly. I put up a conservator as the very first witness and the questions that I asked the conservator were, “What if somebody’s concerned that the money will leave the country? What would you say to that?”
He’d say, “It can’t happen because I control the money they owned.” “What if someone’s concerned about that some terrorist group may get their hands on the money that you may be even instructed by the client to give it to them?” “No, that can’t happen. They’d have to go through me.” “What would happen if they try to get you removed?” “They could go through a process but the court … I’ve been doing this a long time,” and dot, dot, dot. I mean I sought to address the concerns openly instead of the old way which would be to hide from it that I’d sought to answer every objection that a juror may have to giving a big number in the case.
At the end of the day, the comments … Your question was really specifically having to do with my background, my religion and whether I got backlash. I didn’t. I didn’t get backlash. I think that what I would hope anybody would look at this and see is here’s a lawyer who has spent a long time thinking about this really tough issue and how it interplays with our legal system and has struggled with how do you approach it in today’s America in a way that you can talk to people. I mean what if this were a Jewish person in a historically anti-Semitic area?
What if this was an Irishman in a traditionally anti-prejudiced location so many people have experienced prejudice? What I would hope comes out of this for anybody not only from a client perspective but from a lawyer’s perspectives is these are issues we have to think about. The question is how can we do honor to the system that we are agents of, we’ve taken an oath to be an agent of. How do we do it right? I’m not saying this is the right but I’m saying the struggle is a noble struggle and it’s a struggle that we desperately need to address in America today.
I mean we are more divided than we ever have been. If we as lawyers ignore that, we’re not going to do justice for our clients and so we have to find a way address it for our clients and I think in the bigger picture we have to find a way to address it so that our children can grow up in a free country not plagued by some of the problems that we’re currently facing with prejudice et cetera.
Joe, I really, really want to thank you. I mean the wisdom you shared with and the true strength of your personhood. We talked about becoming a person, a whole person to bring our real selves into the court room with our loves and our pains and our sense of humor and who we are. This is so resoundingly evident in who you are that I just want to say thank you and I want to certainly encourage all of our listeners to learn from you.
Joe teaches all around the country. He’s a trucking lawyer who has so much wisdom to impart and I would hugely, hugely recommend that you learn from him and hopefully one of these days, Joe will write a book. But until then we’ll just have to keep following around and listen to his lectures, and learning from him.
I’m just going to keep doing this and leave the book to someone else, but I appreciate your kind comments and we learn from each other. I certainly want to contribute back in by I stand on the shoulders of many others who have thought me. I want to give them honor and I feel like I need to anytime I hear something like what you just said, so thanks for the opportunity to speak to you and your listeners, and I look forward to maybe doing it again.
That would be absolutely all of our pleasure.
Thank you for joining us today for Trial Lawyer Talk. If you like this show, I really appreciate 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. That’s S-C-O-T-T-G-L-O-V-S-K-Y.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 20 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.