Transcript of Episode 55, with Stephen Demik

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 happy and, frankly, excited to be sitting across the table from my good friend, phenomenal trial lawyer, Stephen Demik. Stephen practices in Los Angeles in Southern California and South Dakota and is truly someone who’s got more talent in his little finger than most lawyers have in their entire body. And someone who has sat across the room from me the night before my opening statement in more than one case, and counseled me, and guided me through my own anxieties and fears into getting down to a good, effective opening statement, and many other things. So Stephen, thanks so much for being with us.

Stephen Demik:

Well, I’m honored Scott and, I was telling you before, I love this show. I love listening to it. It’s a piece of the ranch that I can put on my computer and I can hear voices of people that I love, and admire, and respect. And I always walk away with something, like a little gem. And so, I want to thank you for doing this, and also back at you buddy. You’re one of the best trial attorneys I know. And it’s an honor to be sitting across from you and having this conversation. Thank you.

Scott Glovsky:

Thank you. So let’s get this love fest started. Stephen, share with us a story of a case that had a profound impact on you.

Stephen Demik:

Well, if somebody asked me that question, I would say it would be a case that I lost. And the reason is, is because most people expect you to tell the story about the fantastic acquittal you got, or the brilliant closing argument that you did. And I make it a point that some of the cases where I learn the most and was most proud of my work were convictions, were cases that I lost.

But I want to go back to a case in 2005 in San Diego. And my client was a Mexican gentleman and he was stopped at a border … not a border crossing, but a border stop in Arizona. And he was in a U-Haul van and it was just him. And there was a ton of marijuana in the U-Haul van, literally. They weighed it, a ton, and there was nothing else. There was no furniture, or no books, or nothing. It was just marijuana in this U-Haul van.

And admittedly, I tried this case before I had come to the ranch, but looking back at it, there were so many things that happened that I learned from, that are taught here, that are taught here by staff, that you learn here and the method. So, that’s the case that I would pick. And there’s a few reasons, but if …

Scott Glovsky:

Sure, tell us the story of the case.

Stephen Demik:

Well, so my client gave a quasi-confession when he was arrested in the U-Haul van, and they brought him out, and he was interviewed, but they didn’t record it. And I had this moment where the agent was on the stand and I was a young attorney at the time and I took him on and I said, “And you didn’t record his statement so that this jury could hear that statement and we could verify what you’re saying. You’re saying my client said, ‘Yeah, I knew there were drugs in the U-Haul van.'” And I think this agent was feeling maybe like antagonistic towards me. And he said, “Oh, well our video camera was broken at the border patrol station.” In mid-trial I subpoenaed the border patrol guy who’s in charge of the video cameras. And I called him up and I had him at my office at 6 AM the next day, I threw a subpoena on him. I brought him into court and he told that jury that that was a lie. That that agent had boldfaced lied to them.

And it was an acquittal. But I talked to the jury afterwards and I asked this juror, because I think I’d take it a little personal, which again, I was young, what he thought of that border patrol agent. And he said, “He was just doing his job.” And they acquitted my client so hey, I’m not complaining with the outcome. But it taught me something that if you’re going to call a person of authority a liar, even when you do it and even when you do it effectively, you can’t count on it landing the way it lands in your head. It comes across different to a juror. That’s one thing I learned and that’s one story of the case because it’s very rare that you catch a police officer or an agent actually tell a lie or commit perjury. And I felt like I did it and the jury really wasn’t bothered by it.

Scott Glovsky:

No, it’s interesting. I recently heard Rafe Foreman say there’s three stories in a case. There’s our story, the plaintiff’s story, there’s the defendant’s story, and there’s the jury’s story. And the only story that matters is the jury’s story.

Stephen Demik:

That’s absolutely true. And I thought of that too. And that’s something that I’ve said in closing arguments to juries. I said, “There’s the truth of what happened. There’s the prosecutor’s story, number two. And number three is there’s the truth that came out in the courtroom, the truth of the trial as you would call it.” And I used to say that in closing arguments to sort of demonstrate for the jury that none of us were there that night. I’m thinking of this case in particular, none of us were there when he was given the keys by these men who had hired him to move furniture in a U-Haul van from Mexico to Arizona, which is the story of the case, which is the defense, which is he didn’t know the marijuana was in the U-Haul van.

None of us were there because we sit in a courtroom as lawyers with suits, and the jurors are there, and the judge is there, but we’re trying to recreate what happened in reality that none of us were there. And that’s a fascinating point that I’ve always brought into closing argument. But I like what you said, which is there’s the jury’s story, which is the ultimate one, which is the jury’s story is either going to be a story about justice, a story about every day in this country prosecutors obtain convictions beyond a reasonable doubt, and things like that. But that’s the one that counts, right? It’s the jury’s story. That’s the one that, ultimately, we’re trying to bring about and give life to.

Scott Glovsky:

And can you reverse roles with your client in this case?

Stephen Demik:

Yeah, I can. And that’s another point is that I was prepping him to testify because I was convinced up until the middle of trial that I was going to have him testify. And there’s a lot of schools of thought on whether you put a criminal defendant on the stand or not. And I won’t get into that. But I was prepping him to testify and we were talking about it, and I was going through my questions. And the defense, ultimately if you shave the onion all the way down, is that he was stupid. He was stupid because he made a mistake in trusting these guys in giving him keys, and asking him to get paid $300 to drive it across the border into Arizona because it had furniture, and he never looked in the U-Haul van. Stupidity or a mistake, more kind of a mistake.

And I was talking to him and when I was prepping him to testify, his name was Miguel, he just did not want to look stupid. He did not want to look bad. And I said something to him that I have always carried with me when I’m prepping a criminal defendant to testify, and it’s a little crass, but I’m going to say it anyway. You have your ass and your face and you can only save one. And when I’ve seen criminal defendants go in there and testify and they don’t want to look bad, they want to appear polished and varnished, and they want to appear good in front of the jury, they hang themselves because they’re ultimately defeating their defense. And so my client going in and wanting to look sophisticated, smart, educated, worldly, which we all do, we all want to look that way. I can empathize with that.

But for him in that moment, he didn’t understand that. To me as a lawyer, he was really introducing cognitive dissonance to what I was trying to tell the jury was the real story. So yes, I could reverse roles with him and I can do it right now because I’m here on the ranch. And every time I stand up in front of a group of people, I don’t want to look bad. I want to look good. I want to look like I know what I’m doing. I want to look suave, savoir faire, all those things and I think we can all identify with that.

Scott Glovsky:

What I’d like you to do right now is reverse roles with your client.

Stephen Demik:

Oh, okay. All right.

Scott Glovsky:

What’s your name?

Stephen Demik:

My name is Miguel.

Scott Glovsky:

Miguel, close your eyes for a second.

Stephen Demik:

Yeah.

Scott Glovsky:

Sit the way you sit. Feel yourself in your body. And when you’re tuned in, open your eyes. Nice to meet you, Miguel.

Stephen Demik:

Hello.

Scott Glovsky:

How’d you get into this mess?

Stephen Demik:

Well, I’m a mover and that’s what I do for a living. And I had word from my friend that these men were going to pay $300 to just drive a van. And that’s what I do for a living. And it sounded like a normal job. It’s what I do normally. And I didn’t know what was in that van. And I got stopped at a checkpoint, I showed them my papers, and they tell me there’s marijuana in the van.

Scott Glovsky:

And if we step back and go a bit deeper, something that might be referred to as chairback, how are you feeling now?

Stephen Demik:

Scared. Absolutely scared. I’m in a foreign country. I’ve been here before, it’s not like I haven’t been to the United States, but now I’m in jail in the United States and I’m far away from home. And I’m scared. I’m terrified. I’m looking at five years in prison, it’s a mandatory minimum. So my lawyers told me.

Scott Glovsky:

And how do you feel about your lawyer and this system?

Stephen Demik:

He cares. He seems to be invested in my case, he seems to care about me. He talks to me a little brusque sometimes, but I know that it’s coming from a place that he really wants to win my case. He really wants me to go home. He’s told me that.

Scott Glovsky:

Do you trust the system?

Stephen Demik:

No, not at all. There’s all kinds of guys back in this jail, where I am right now, awaiting trial who’ve been given real raw deals. I don’t trust the system at all.

Scott Glovsky:

So, regardless of what your lawyer tells you, what do you feel like you have to show to get out of this?

Stephen Demik:

Well, they have to like me. I mean if they like me, and they think I’m a good guy they’ll let me go home.

Scott Glovsky:

And how can you look like a good guy?

Stephen Demik:

Well, I can show them that I’m a good person, I don’t commit crimes, I don’t use drugs. And they’ll see that. And I’m a good family man. And when they see that the judge will send me back to Mexico, back to my family.

Scott Glovsky:

What are you most afraid of?

Stephen Demik:

Being stuck in prison for five years. Right now, yes, it terrifies me. And for people to think that I’m a drug dealer.

Scott Glovsky:

I mean, after all you did this for 300 bucks.

Stephen Demik:

That’s right.

Scott Glovsky:

It’s not a lot of money. I mean, well, I shouldn’t say that. What does 300 bucks represent to you?

Stephen Demik:

It’s about a half-week. On a good week, that’s about a half-week salary, I would say. It’s pretty good money. It’s not going to make my month. But if maybe these guys think I’m good at my job, maybe they’re going to send me other jobs, and maybe they’re going to give me more clients.

Scott Glovsky:

Do you have people that rely on you?

Stephen Demik:

My family.

Scott Glovsky:

You send them money?

Stephen Demik:

I do, absolutely. I bring money back and if I’m in the United States on a job I’ll send it back.

Scott Glovsky:

Is there anything else we need to know about you?

Stephen Demik:

I don’t really understand this system, I don’t. I don’t understand it, but I trust my lawyer.

Scott Glovsky:

And if you could say anything to your lawyer, he couldn’t hear you, but your inner-most thoughts, what would they be?

Stephen Demik:

Get me out of this. Get me out of here. But thank you. I would say thank you and I do say thank you to him. Thank you for coming to visit me on Saturday. Thank you for being at the jail at nine o’clock at night and working on my testimony and helping me. And I say to him, thank you. So if I have anything to say to him, I would say thank you.

Scott Glovsky:

Well now we’re in 2019, you’ve been acquitted of this crime. How do you feel about Stephen Demik?

Stephen Demik:

He’s a good man and I appreciate what he did. He helped me show the jury that I’m a good person and he helped me go home.

Scott Glovsky:

Okay, well let’s reverse back into Stephen. And what are some lessons you’ve learned that you can pass on to young lawyers?

Stephen Demik:

Well, I’m going to stick with this case since we’ve been talking about it. The jury acquitted my client, Miguel, in less than an hour. But there was a note, there was a question from the jury when they went out. And I got up, Scott, and I think I did the best closing argument I’ve ever done. I hit every point, I was sincere, I gave the righteous indignation. And I left no stone unturned in that closing argument. I took every point that the prosecutor had and I diffused it before their rebuttal. And I sat down and my co-counsel said that was it, A-plus. And the jury came back with a note after about five minutes of deliberation. And the note was, “We want to know what this word means in English.”

And I don’t want to be judgmental, but it had nothing to do … I mean, besides the fact that he had been hired, in his mind, to move furniture. But here’s what I learned, and it’s very simple, the jury needed to feel that it was their verdict. And you just said it better than I ever could, it was their story. And as a young lawyer, that closing argument, it was my story and I was going to tell them that they had to acquit. And I was going to walk my client out of that courtroom, arm in arm, and get the gold trophy, and the confetti because it was my verdict. And because I worked so hard for it, and that’s my ego.

What I learned was that the jury has to own that verdict. It has to be their story and it has to be their verdict. And so that question that they asked was simply, if I were to chair back the jury as a group, “We want to feel that we’re working and so we’re going to work by asking this question. And when you tell us, judge says, I can’t answer that question. What’s in evidence is in evidence.” After that, 10 minutes later it was a not guilty. And that’s a valuable lesson for me, I think for any trial lawyer is the bigger your ego sometimes that gets in the way. It gets in the way of delivering justice to your client. That was a very important lesson that I learned in that case.

Scott Glovsky:

And how do you operationalize that in your practice and trying cases?

Stephen Demik:

Well, I try and come back to the ranch and I try and work the method, and I try and … Jerry said it better than I ever could, and really perfected the method in saying, “You have to transfer the responsibility to the jury,” and that’s his bird story that, for those of you who aren’t familiar with it you can look it up on Google, it’s a great … Yes?

Scott Glovsky:

Why don’t you tell it to us?

Stephen Demik:

Sure. Again, I feel like this is a sacrilege in some way because he does it better than I ever could. But the story is, very simply, there’s a village and there’s a village elder who is purported to know everything. He’s the wise man, if you will, of the village. And there’s a young boy who says, “I’m going to do what nobody’s ever done in our village’s history, and I’m going to trick the wise man. And I’m going to do it by putting a bird in my hand and covering it up.” If you imagine a palm down, and a palm over it. “And I’m going to go to the old man and I’m going to ask him, ‘Old man, you’re so wise. I have a bird in my hand. Is it alive or is it dead?'” And the old man turns to the young boy and he says, “The bird is in your hands, son.”

And the purpose of that metaphor, the purpose of that story, and then you say to the jury, “I put my client in your hands. I put that bird in your hands,” because you’re giving your clients, you’re giving your client, figuratively, but literally you’re giving your client’s fate to the jury and you’re telling them that it is their decision and it is their responsibility, at that point, to deliver justice. You have transferred responsibility to them.

The little boy, if the old man said the bird was alive, he was going to crush it in his hands, and pop it out. And say, “You were wrong. It was dead.” And if the old man said the bird was dead, he was going to release his palms and the bird was going to fly. And he was going to say, “You were wrong, old man, the bird was alive.” But that’s it, really, is that he was going to trick the old man because he had the power to determine whether the bird lived or died. The jury has the power to determine your client’s fate.

For me, for Miguel in that case the jury had the decision and the responsibility whether he went to prison for five years, which they would never know because a judge wouldn’t allow them to know that, or to set him free, and let them fly back to his home. And that’s why it’s a powerful, powerful skill that we learn here is that transferring that responsibility to the jury so that it’s their verdict, and so our egos of wanting to look good, of wanting to appear good savoir faire, being debonair, being so articulate, and Cicero in the courtroom does not get in the way of the ultimate thing that we’re there to do, which is deliver justice for our client, for the little guy, or for the little gal, or for the little person that we represent.

Scott Glovsky:

And how do you deal with your own ego? Because we all have them and they get in all of our ways. How have you dealt with it?

Stephen Demik:

Well, it’s easy. I’m very self-critical and I don’t know if people realize that I have a very powerful inner-critic. And I always feel like I’m not doing things correctly, or I’m not doing things right. And I don’t take compliments very well, which is even … when you were introducing me, I kind of like a little boy was staring at the ground because, to this day, I just don’t take compliments well. And that’s my story. That’s my story of growing up in a family with an older brother who was very smart, very well accomplished, and feeling a bit second rate as a young boy. And I think I’ve internalized an inner critic.

How do I prevent, or put my ego at bay in the courtroom? I try and remember that I’m a player in the courtroom and, although, I want to be the “power player” because I want to have credibility, and I want the jury to understand that they can look to me for answers and I will be honest with them, and I will not lie to them even when it hurts my case. Ultimately, at the end of the day, and I tell clients this in every criminal trial I have, there are only 12 people in that courtroom that can set you free. And, at the end of the day, it doesn’t matter what I think, or how good a lawyer I am, or what the judge does, or what the prosecutor does it’s those 12 people. And I guess I keep that mantra in my mind, is I never usurp the jury. I never try and invade their province. That’s their province, they’re going to make the decision. It’s their story. I’m just trying to help them.

Scott Glovsky:

Wow. Lastly, what advice do you have for trial lawyers out there that are trying to get better?

Stephen Demik:

Be as real as you can, and live life down to the marrow, suck it down to the marrow because whether it’s Guantanamo Bay, where I’ve defended detainees who were locked up for a decade in a prison with no criminal charges, who are from a foreign country, who don’t speak my language, and I don’t speak their language, who are a different culture, a different religion, different skin color. Or a young Native American boy. And right now, I remember, I can see a particular boy who committed suicide after his acquittal at trial, who lived on the Pine Ridge Indian Reservation, who was a 23 year old boy … didn’t make it through high school, lived in dire poverty, and just had experiences that I’ve been fortunate enough not to have. Or Miguel from Mexico, who’s in a foreign country, who … at that time I didn’t have a family. Now, I do have two beautiful children. But who has a family and I didn’t have a family.

But I guess what I’m saying is that if you go out there and experience life from as many different vantage points as you can, and you never look down on somebody, and you never look down on somebody’s life for what they have or what they don’t have, and you try and walk in their shoes, and experience life the way they experience life you are going to be a master communicator. And you’re going to be a master communicator because there’s going to be a piece of you that can always connect with another human being.

I’m going to just give an example because I feel like I’m being very abstract. With my detainee client, one in particular at Guantanamo Bay, we would have the most intense conversations about what it was like to be a father because I was a brand-new father, had my beautiful daughter. And I think I went down there and she was only probably a year or two old. And I went down there and we sat for two hours, and we didn’t say anything about the law, and we didn’t say anything about the case, or the Supreme Court precedent, or any of that. We just talked about what it was like to be a father.

And he gave me the best advice I think I’ve ever received. He said, “Always come home with a smile even though you don’t feel it because there’s going to be moments,” and this was so touching to me. “There’s going to be moments when you can’t see your kids. And so you’re going to wish that when you walked in the door that day, and you had the worst day ever.” And we would joke about it because he’s sitting in prison in Guantanamo, and I’m like, “I don’t know if it gets much worse than this, dude.” But, “Even if you had the worst day ever, walk in with a smile, even if that smile lasts for 10 seconds, because that day that you can’t be with your kid, you’re going to want them to remember that that was their father’s face walking in the door that day after work.” And man, that was it.

After that, not only was I bonded with my client, but I could tell his story because, to me, he and I were bonded. And in that limited temporal time are bonded for the rest of our lives.

Scott Glovsky:

Wow. That’s a whole lot of love, my friend.

Stephen Demik:

Well, I’m on the ranch and there’s a lot of it here, so it’s a safe place to express things like that, and get in touch with things like that.

Scott Glovsky:

Well, thank you very much for taking the time to speak with us. And I’m super excited to just watch your amazing career in South Dakota and California. And I’m very, very proud and fortunate to call you my friend.

Stephen Demik:

Thank you, friend.

Scott Glovsky:

Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d 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.