In this episode of Trial Lawyer Talk, Scott speaks with WA attorney Francisco “Paco” Duarte. Mr. Duarte tells Scott about a case that profoundly impacted him.
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Transcript of Episode 53, with Paco Duarte
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 really excited to be sitting with a great trial lawyer. I have a habit of saying phenomenal trial lawyer, and Francisco Duarte “Paco” is a trial lawyer that handles both criminal cases and civil cases. He’s based out of Seattle, but is truly a gifted, genuine, authentic trial lawyer, and an especially talented teacher of trial lawyers. Paco, thanks for being with us.
Paco Duarte:
Thanks Scott. Good to be with you. It’s been a long time. It’s a thrill to see you again. So my eyes have finally come to lay upon you after so many years. I don’t know five, six years maybe, even more. I don’t know.
Scott Glovsky:
Far too long.
Paco Duarte:
It has been far too long indeed, but it’s so wonderful to be with you.
Scott Glovsky:
Thank you. It makes me feel good. Can you share with us the story of a case that had a profound impact on you?
Paco Duarte:
There have been several, maybe many. And as I think back on my cases, they all seem to start to blend in one way or another mainly because when you work with someone and you have the honor and the privilege to represent a human being who’s come to you and said, “I want you, I trust you, and I want you to be my spokesperson.” It’s an incredible responsibility, but it’s also a thrill. And one of the things that I realized over the years is that people need someone to fight for them, and so many of us haven’t had that. And so it’s truly amazing when you can take on a person’s case, a person’s problems and say to them and to yourself, “I’m going to do everything within my power to make a difference in your life and I am going to fight for you.” And that’s what trial lawyers do, we fight for people.
Scott Glovsky:
Paco, let me ask you, you said many of us have not had people to fight for us. Where does that come from in Paco’s life?
Paco Duarte:
It comes several places. Thinking back on my own childhood, my mom and dad didn’t have someone to fight for them. My dad was very ill and we were born … We lived in Colombia, that’s where I was born. And he couldn’t get medical help and medical treatment there. So you came to United States for help, and the doctors in Elmhurst Hospital in Queens really fought for my dad because he didn’t have someone to fight for him when he was living in Colombia. They gave him a dialysis machine that he could take home. They gave it to him, and so my mom and dad did the dialysis at home. And then my dad eventually died when I was around 14. Then it was just my mom, and she was cleaning houses in the Upper East Side in Manhattan for extremely wealthy people. That’s how she took care of us, and so she didn’t have someone to fight for her and defend her.
And I never forget watching Roots when I first came to United States and I’m watching this story about slavery in America and I’m thinking no one’s fighting for the slaves. I thought a lot about that too. And so I think those are some of my earliest memories of thinking about fighting for people and helping people.
As you were saying, you know, I was telling all the stories planned. But it’s always easy to remember the most recent. Two weeks ago, I just finished a two-week trial, and that is sticking with me today for a couple of reasons. One, the trial represented in my experience in this moment in time what’s happening around the country and how fragmented and divided we are as a people, and tribalism was so ever present in this trial that I had a very difficult time managing that. My client, his name is Samir Gardi. He is from Iraq. He’s Kurd, so he lives in the Kurdistan area of Iraq. Kurds, as you know, are not having such an easy time in the world for many, many years. This guy had, as a child, been the victim of bombings and the victim of seeing his people being killed and affected by the war.
He’s actually an attorney. He’s a lawyer in Iraq, and he work for the United States because he wanted to bring democracy to Iraq and to the Kurdistan region, and he was lucky enough to come to United States because of his work for America. And he was a US citizen. He was involved in the turbo automobile crash. He had just finished working that morning at a local hospital outside of Seattle, where he was working as an interpreter, interpreting for folks in Kurdistan or Iraqi and helping them explain to American doctors what was wrong with them. He felt really fulfilled and privileged to be able to help people communicate with doctors so that it can make a difference in their lives. When he finishes interpretation services that morning, he was heading home and on his way home, he didn’t even have a minute to react when he was hit head-on by a car.
The car was being driven by a woman who by all measures had a hard life and basically she was working as a prostitute and so she had problems with the law, and those problems meant that she had warrants and didn’t want to go back to jail. So she’s driving this car that morning with expired tabs and a police officer sees that, and decides to light her up and pull her to the side of the road, but she panicked. She did not want to go back to jail, and so she took off in the Kent area, which is about 15 miles south of Seattle. And she sped like a demon, and the police knew this. Despite of the fact that the police knew this, they chose to chase her down the road against policy and protocols. They knew that you don’t chase someone through an urban area at excessive speeds, running through red light, hitting another car to flee the police, going on to the oncoming lane multiple times to flee the police. The police officers knew you from training that you don’t endanger the community that way for chasing someone for expired tabs, but they did. And she was determined to get away so much so that she crossed the center line, went into oncoming traffic at a high speed or rate, coming around the curve, down a hill, and hit my client, hits Samir head-on.
Samir ended up in the hospital in a coma. His aorta was ruptured, had broken ribs. A terrible, complex fracture of his right leg, head injury, concussion. Today, he has double vision and so forth. It’s amazing that he lived. So this is a case that I took on, on less than a week’s notice.
And so I talked to Samir, and in spite of the fact that there were so many problems with the case, I decided to give it a whirl, and we did. Unfortunately, it’s one of the more embarrassing outcomes that I’ve had in a very long time. It was a quick verdict, very fast verdict. I think the jury came back within 20 minutes. I don’t think they even spent time reading the jury instructions because they were fairly extensive. And so I lost. And I lost for Samir.
The amazing thing about it though is that Samir was really happy with my effort. He said, “Man, you spoke like Martin Luther King, and I was so impressed.” But those words were hard to swallow considering the loss. He says, “Look, I want you to come visit me in Kurdistan and I want you to come and spend some time with me and my family there.” What an honor that was.
I didn’t have the best experience in jury selection in this case.
Scott Glovsky:
Let me interrupt you for a moment. How did that feel when you have lost a case for your client who’s gravely injured, and your client tells you how much he appreciates your help and offers to take you to his country and host you? In other words, shows you love and kindness.
Paco Duarte:
Yeah, he definitely did. He showed me a lot of kindness and love. Frankly, although I met him in such a short period of time, I too fell in love with him. And learning his story about courage, about being a Kurd in Iraq working for the Americans, knowing that that is the type of conduct and behavior that puts you at extreme, extreme Jeopardy not just to yourself but to your family, your loved ones. And the fact that he did that, and that he was willing to risk it all to bring democracy to his country, just made you want to fight for this guy. I mean his risk, his challenges way surpass the one that I was dealing with. I mean in courtroom in the United States, no one’s going to die, no one’s going to attack my family, no one’s going to do anything awful, harmful to us one way the other. But what he was doing for American in Iraq, took courage that was beyond comprehension. When you start learning his family story and who he is, you fall in love with him.
But we did that also helped was that the Saturday before the Monday, when we started the trial. So just a day between the trial day and meeting him for the first time, we brought in about seven lawyers from Trial Lawyers College, lawyers who came to a session on Saturday and my trainer happened to being in town at that time. One of TLC’s psychodramatist, and we all came together to work on this case and do the best that we could with the limited time that we have to learn his story. It was hard because he’s here alone. I mean his family’s in Iraq. He had some friends here, but he also didn’t understand how important it was to have lay witnesses who can come and tell his story. So we had to do with him alone. And in that day, several hours of working Saturday with my trainers’ help and all the TLC lawyers, you know that when you do the story exercises with people, you get to know them well. And that helped.
I think he saw in that process the lawyers that we brought together to discover his story so that we could tell it at trial, showed a lot of love for him and give him a lot of trust and confidence in what we were doing for him. And so that created a bond. And so when he told me at the end of this trial that he wanted me to visit him, I feel great but at the same time it was extremely painful because I felt like I let him down. And he needed my help in ways to secure his future and I failed to do that, and he was extremely gracious. So his graciousness added to the pain that I was feeling. It was more like he was taking care of me at that moment than I taking care of him.
Scott Glovsky:
So you feeling that you let him down being met with he’s taking care of you, it’s tough.
Paco Duarte:
It was. It’s kind of a surreal moment, right? That here’s a guy who was counting on my work with my colleagues from the office with Scott Smith and Steve Fury and others who wanted to really make sure that we learn his story well. Yeah, it was really it was really hard. It was really hard. When I think back at the moment, it’s sort of helps me today, at least two weeks after this trial to give myself a little bit permission for having lost his case, that at least I can walk away with the satisfaction maybe … Rather the fulfillment of knowing that he felt that I care for him, that I loved them, and that I did everything I could with the limitations that we had to really help him. And I think he saw that, and I think he was very grateful for that.
But I don’t think that would have been possible without the Trial Lawyers College. I don’t think that I would have learned to care for him as deeply as we did so that we can tell his story right. And we did tell the story right. Well, maybe not actually. I think If I had a chance to do it again, I would do it differently. But I am stuck in this trial for a different reason as well, not just because I lost the case for him and didn’t end up helping him, but the anger that I’m feeling today about how fragmented our country is was so evident in this trial. Our jury selection was a complete moment of tribalism at its worst, not at its best. You can see the groups within the jury pool, how they were firmly in their positions. I feel like as a trial lawyer and someone who’s gone through Trials Lawyers College that I should have been better equipped to have bonded this group together.
Scott Glovsky:
Tell us about what happened, what they said.
Paco Duarte:
We had a group of people that I would put in the category of evangelicals, who also were connected to police officers. They spoke about being completely angry and mad at anyone who would say anything bad about the police, and that they felt that any criticism on the police was undeserved and that should not be tolerated. They use terms like anger and frustration and distrust for any sort of criticism or attack on police conduct and police behavior.
Scott Glovsky:
How did you respond?
Paco Duarte:
Openly. I talked to them about the fact that I understand why it’s so important to have a police force and why it’s so important to believe in the rule of law, and I just let them tell me exactly how they felt. The conversation turned out to be very positive to the point that several of them would say and did say that if they were in Samir’s shoes, they would not want a juror like themselves, which was a good moment. And I think the only way that we could have gotten there was because of my training at the Trial Lawyers College that we can have a very genuine and honest discussion with someone that they will be revealing those sort of biases. But he was opposed by opposing counsel obviously and the judge did not grant any challenges for cause in spite of the fact of what this juror had said.
At the same time, there were others in the similar position, we call the same tribe who refuse to acknowledge, even though you can see it in their body language, in their facial expressions, in the way that they sat, in the way that they cross their arms, in the way that they turned their bodies away from you. Those sort of things. You knew that they would hold any criticism against the police, against the person that was bringing that challenge, against us. And of course, when the core gets up and says, “Can you follow my instructions and can you be fair and impartial?” What is a person going to say? Yes, of course. And so they sat.
One of the amazing things in the jury selection process too was that there were people who have had bad experiences with the police. But interestingly, these folks were extremely open and candid about their biases towards the police. And so they say some other things like, you know, “I don’t think I will be riding this case because I think I would hold that against the police.” Those individuals were excused. I didn’t oppose that either because I felt that, that was the right thing to do, that was the honorable thing to do, that is the thing that you do when you believe in the rule of law. Of course, it would hurt me, the side of me that wants to win to see them lose, to see them leave. But the right thing to do was legally, they described an internal bias that was an appropriate challenge for cause. Of course, the opposing counsel and the judge had no problems excusing this people.
So what we ended up having our jury pool was an extremely pro-police jury. But that’s not necessarily a bad thing. I think what was a bad thing is that I did not know at that moment how to best connect with them. And I think that there is a way to reach them, but given the moment and the situation, I felt like I failed. Because we know we can connect with people who are different from us, their stories are our stories, their personal issues are our personal issues, their trials and tribulations are not different than anyone else’s in that courtroom, and I was not good enough at connecting that with them. But I think part of it is also my anger towards what’s happening in our country. We’re so divided that we only speak of hate, we don’t speak of unity or connection anymore and people feel more justified to dig their heels in the sand and say a rage of things, because we can now. And I like that part about it, I mean it’s openness, it’s candor, but I also think that people are not willing to look beyond their tribe. So tribalism worked against us this time around.
Scott Glovsky:
Do you think that either the color of your skin or the way you talk or the fact that your client is Kurdish from Iraq had any bearing?
Paco Duarte:
My first thought to that question is you know, oh god, he’s playing the race card. He’s talking about race. But yeah, race was very present in that room. So much so that the few people of color that were in this jury panel, with the exception of Juan, never made it to the jury pool, which is actually sad in this trial. I do think that the fact that Samir spoke with an extremely strong accent, he looked exactly from Iraq, and that he was here alone and didn’t have others pressing with him, made him more vulnerable for the stereotype.
I don’t know if my accent, the way I look had any bearing on the trial. Sometimes I know it does because you can see people’s facial expressions to what I say or do. But I don’t know, I want to think that we could transcend those moments, but I didn’t transcend it this time.
Scott Glovsky:
So we have many tribes, right? We’ve got the pro-police tribe, we’ve got the Tort reformer tribe, we’ve got different races, different nationalities. How do we make our tribe the jury’s tribe so we can get over those differences and connect?
Paco Duarte:
Well, we are all human. We all have … At some time in our lives, we had a mom and a dad that came together and made us. We have that in common. We have in common our feelings, our emotions. We have in common the hardships of life that we all experience from being a little child who was hungry and cries to later on in life, feeling hurt by others or hurting others because we did something wrong. At the end of the day, we are all really the same. We’re not different. There was not one person in that jury that has not had a human trial or human tribulation that does not connect us all in one way or another. People have been punished, people have been betrayed. People have been berated, people have felt love, people have felt hugs, people have felt compassion, empathy. So we were all human, but for whatever reason in this moment, at this time, we do not see ourselves as one and the same. We focus on our differences more than we focus on our similarities, and that’s where I, as lawyer, feel that I didn’t do enough to really bring this group of people together so that they can see that we are all really one and the same. I could not get them to the point to see beyond the tribe that they belong to, and see that we’re all part of the same one.
Scott Glovsky:
And if you were to do it over, how would you do it differently?
Paco Duarte:
Well, I was afraid you were going to ask me that question because I’ve been wrestling with this quite a bit. There are a couple of things that I think I would do. Knowing what I know today, I would have taken more of a leadership in the jury selection process. Here’s what I mean by that. Because there is a way that I do jury selection, and this was a judge that, it’s new and he had said he was going to do some things and so I was counting on those things, but he forgot or neglected to do them. And so I wasn’t prepared for that moment. And I would have asked for a longer period of time with jury selection and would have explained to the court why it was so important to have it.
I think that I needed to be more real with this jury about what I was seeing in a way that would not have come across as judgmental and as accusatory, but in a way that I could have said to them, we’re really focusing so much on our differences today, why is that? Why are we so focused on why we are so different as opposed to what makes us all alike? And I could have shared a story as to why and how I do that today. I’m having a hard time dealing with people who in today’s climate feel justify to say that black lives don’t matter, but I need to understand why they say that and help them.
I think one of the things that I would do differently this time around is to really talk with a great deal of candor about why we focus so much on the differences and not on the similarities, and see if I could have then facilitate a discussion with this group as to what makes us better when we focus on our differences or when we focus on our common ground and maybe that would have made a difference. But I didn’t do that then. And so I’ve been thinking a lot about that today. I think I would have spent a great deal of time really addressing that issue.
Scott Glovsky:
Reminds me of something that Luca from Scottsbluff, Nebraska often says that love always trumps hate. And while that’s a nice phrase, sometimes in our current political climate and society, it’s a little tougher to believe that sometimes.
Paco Duarte:
It is so true. I mean that very same thought occurred to me during this trial, and what I was dealing with was that I too have now lost faith that love trumps everything based on what I’m seeing and what’s happening in our country today. I’m actually living in a period of time where I’m scared for our future because we’re so fragmented and it seems so … It’s like a runaway train right now that how do you rest this train from wrecking the world. I think if I reflect genuinely on my work as a trial lawyer in this case, I lost that part of me as well that believes that love trumps everything because I didn’t believe that. I was never in a position to really embrace all these jurors in a way that they would have felt that I too understood them, and that I understand where they were coming from. And so instead of building my own tribe in this trial, I miss that opportunity.
But the other thing that I would do differently is exactly this topic that we’re talking about, which is that I needed to deal with my very strong anger that I have today about how we are so different and not so alike.
Scott Glovsky:
And fear.
Paco Duarte:
Fear and anger. I mean I feel angry about what’s happening with us. If we think about people in the Midwest under struggles, in many ways, they’re not, in every respect, is not different from my mom’s struggle when I was a kid. She had a responsibility to take care of her children. She had a job to do that didn’t pay very well. She had a fear that she could not take good care of us, and that sense of insecurity is a significant source of stress and pain. And so when we think about people in small communities around the country who are feeling that sort of economic hardship, it’s no different than my mom’s and their struggle is very real.
Sadly enough, I think given the status of our country, I feel that people have bought into the idea that for example, trial lawyers are bad for America or that attacking an insurance company is bad for America because it makes us less safe, when in fact keeping them accountable makes us more safe.
Scott Glovsky:
Paco, what if you would have your voir dire with what you just described about how things were difficult for your mom?
Paco Duarte:
I think if I had connected to how people are struggling themselves, I think it would have helped to bridge the gap. But I think I need to do more than that kind of work because some of the folks in this jury pool that had this very pro-police attitude and, “I don’t care what the police do wrong, I can never find anything wrong with them because they’re part of our tribe, and that’s what tribalism does, right?” Tribalism at its worst protects its own, even when its own is doing something wrong because there’s the whole concept of preservation. I think I needed to go deeper than that concept to be able to talk to them in ways that are meaningful. And so since I’m not part of that tribe, I don’t know enough on how to connect with them, which means that I need to do my homework and spend some time putting myself in their shoes and really seeing the world from their point of view so that I can speak to them in a way that is meaningful to them, and meaningful to my client because at the end of the day, it’s no different. There’s no doubt in my mind that if any of these pro-police jurors had suffered the same fate that Samir did and they looked at the case on the merits, they would have said what they did was wrong. So yeah.
But the thing is that jumping into a case and doing it at the last minute, it might feel heroic, but at the same time it’s fraught with problems, and that’s where preparation comes in. What we’ve learned at the Trial Lawyers College is that you have to do a lot of work, and I mean a lot of work, hundreds of hours in a case just to present a short segment of that whole story in a way that makes sense and brings justice forward. So yeah.
Scott Glovsky:
It takes a lot of courage to talk about cases you’ve lost and things that have hurt you, and it’s such a gift to our listeners to have such a wonderfully successful and gifted trial lawyer, like yourself, sharing your pains and your wisdom. What advice do you have for young lawyers out there who want to become trial lawyers?
Paco Duarte:
I think that the most important thing about our work is that we cannot measure it by a vertical settlement. We have to measure our work by how we impact people and how we influence people for the betterment of our race. I think that if we spend time doing this work, we have to expect losses and they’re going to be very painful. And that when we do lose, we have to take a hard look at what we did wrong, where we failed, and then get back on that horse and do it again, and do it again, and keep doing it. Because it’s the only way that we can make a difference.
I guess Samir said it well, fighting for him meant a lot. He fought for others for many years and this was my chance to fight for him, and that was a gift that he felt that I gave him. Obviously, I wasn’t thinking about that at the time, but he made that very clear to me that he received an incredible gift from our belief in him and for what we do. My advice is keep fighting. We’re fighting the good fight, and it’s a fight worth taking even when we take our lumps.
Scott Glovsky:
Paco, thank you so much for teaching us today. And you’ve taught us a lot about jury selection and connecting with jurors. I am very grateful for your lessons. Thank you.
Paco Duarte:
You’re welcome, Scott. Thank you.
Scott Glovsky:
Thank you for joining us today for Trial Lawyer Talk. If you like the 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 love to hear your feedback. You can also check out the book that I publish 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.
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