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Transcript for Trial Lawyer Talk, Episode 23: Joy Bertrand

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Scott Glovsky:                   Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast were we speak with some of the best trial lawyers in the United States. First today, I’d like to thank our exclusive sponsor Traci Kaas from the Settlement Alliance West. Traci is a phenomenal settlement consultant and I’ve worked exclusively with Traci for the last 10 years because she cares. Just like the folks I interview on this podcast. She cares about the clients and does a great job. Now at first I was very hesitant to get a sponsor because this podcast is not about making money and it never will be. So all of the sponsorship money is going to advertise the podcast, so that we can spread the word and get more listeners. Thank you Traci. So let’s get started.

I’m very happy to be sitting with Joy Bertrand who’s an amazing trial lawyer, who practices federal criminal defense as well as plaintiff’s civil rights work nationally. Joy thanks so much for being with us.

Joy Bertrand:                     Thank you, thanks for having me.

Scott Glovsky:                   Is there a case that had a profound impact on you?

Joy Bertrand:                     I’ve had several. The one when we talked about this that I first thought of is going to be the one that we’re going to talk about tonight and that is a case with a client, I’m going to change his name to Hohaia. It was a federal carjacking case off of a Indian reservation and the most compelling thing that first drew me to the case is when I went in to the bullpen to just do his intake.

Scott Glovsky:                   What’s a bullpen?

Joy Bertrand:                     A bullpen is where the prisoners are being held by the marshal service and you go back to this big, the formal word would be cell block, we call it a bullpen. You go through several locked doors and the guards let you in and then you sit down with your client and he’s looking at me through this metal screen and I see he has game over tattooed on his eyelids, so when he closes his eyes that’s what you see. As I started to work the case it was clear he was kind of buffaloed into this carjacking, it could have been a murder very quickly but the person was found and for his tough and really nasty as this kid could be first perceived to be, I saw him as very vulnerable. He had a eight page juvenile record so he’s already created … He was only 18 when I had him. He had already created a history that was telling me this kid’s going nowhere, he’s really at risk. So over the months of representing him I worked with an investigator who does a lot of capital mitigation work and I think that also made a huge difference, that I was working with someone who knew what to look for, both in the case development and in the client relationship.

We requested his records from Indian Health Services and the great thing about those records is they start from birth. With him, within two weeks of him being born he was in the hospital with severe bacterial infection that is only transmitted through human faeces and so that told me the kind of home he was being raised in. He had a scar on his forehead that ran probably about six inches back into the hairline and I asked him “Where’d you get that?” “Oh I was 12 when my uncle beat me with a chain.” His mother died when he was 13 from cirrhosis. His first suicide attempt by hanging was at 14.

So I was down in the federal lock-up, meeting with him probably every two weeks and he was so dangerous, he was in segregated custody. He was so dangerous that I wouldn’t even take a pen or my keys in. I’d leave them with the guards because it’s kind of an unknown thing, outside of criminal defense practice, when you go into these segregated cells you’re locked in with the client. You can’t get out. So I still had to protect myself physically and I didn’t want there to be anything in the room that he could use as a weapon. So I would go in completely unarmed and sit with him on these plastic lawn chairs and go through the discovery, which was pretty damning and try to sort out what we were going to do with him. Any written material, he couldn’t read so any written material, you know single spaced typed font had to be read to him verbatim.

Scott Glovsky:                   What was he accused of doing?

Joy Bertrand:                     Carjacking and I think they only did assault causing great bodily injury, it could have easily been an attempt murder. It could have easily become a first degree felony murder. I got him a pretty good plea resolution, not perfect but given the circumstances pretty good and between change of plea and sentencing, the mitigation investigator that I was working with and I went down to see him all the time. She got to the lock-up about 30 minutes before I did and so she was coming out of the seg room as I was going in and she goes “Hey, tell him no more tattoos before sentencing.” And I walk in and he’s got the prefix for the gang in that neighborhood tattooed on his face. I sat down, I said “What is this?” and he told me that a girl told him she thought it’d be cool. I remember my heart just thinking, because now we’re going to go in front of this federal district judge, this kid’s got a gang tattoo down the front of his face and I didn’t get upset with him, I just said “I need you to promise me nothing more before sentencing.” I think he was also being told not to toughen up before he went to the bureau prisons but this just set his security rating you know, to the stratosphere.

So he had had several social workers and hospitalizations through his life and I was kind of getting ready to go and I said “Well, see you on Monday.” Reminding him how things would go. We’d gone through his pre-sentence report one more time and I said “Do you have any questions for me before I go?” He sat back and he goes “Do you think anything would have been different if someone like you had adopted me?” I sat back down and I said “You know, I don’t know. I know I came into your life and you came into my life when you were supposed to and this is what I was supposed to do for you.” We presented to the Court a pretty lengthy history including that initial hospitalization, photos of the house that’s now burned out on the res.

Scott Glovsky:                   The reservation?

Joy Bertrand:                     Yeah, the reservation and the interesting thing was the prosecutor got kind of upset and said “You know we get these arguments about dirty houses all the time and there’s people that grow up on the reservation that turn out to be really good people.” And I thought not that get born like into this circumstance and we can’t ignore that and when I looked up at one point, the judge who was a pretty tough judge had turned away from us and was covering her face. So I didn’t see him after that sentencing. He was released, so I know I got him a good sentence, I just can’t remember. He was just recently arrested for another crime and I thought, you know I don’t … As his lawyer I did everything I could for him and I think what he taught me and it’s something I’ve carried forward particularly in my criminal defense practice but it applies to the civil rights work as well, there is a divine light in everybody. It’s very difficult as a criminal defense lawyer to know you’re being sent in to find that.

Scott Glovsky:                   Tell me more about that.

Joy Bertrand:                     It was really easy as a prosecutor, which I was for years to see people only on the surface and in a way I had to, for the volume that prosecutors handle. I was at the Milwaukee Drug Unit and I had 168 open felony’s at a time. So I couldn’t get to know people, it would have been to … and I just wouldn’t of been able to turn the cases. As a criminal defense lawyer it is my job to know my clients and to speak for them. I do a lot of violent crime work. Some of them have been accused of doing horrific things and yet it’s my job to sit in those rooms with them and know them and find that light, find that child and speak for that light, whether it’s in front of a jury or in front of a judge at sentencing and that client was early in my private practice, really gave me the gift of drastically changing how I approached criminal cases.

Scott Glovsky:                   How so?

Joy Bertrand:                     I went from seeing him as very technical and I think I’m still a good technician in terms of knowing the rules and handling the rules well in Court but that’s a very prosecutor way of looking at cases like for example that drug cases are  wait and record you can almost grab them out and Hohaia taught me sorry … Hohaia taught me that that’s the just the start. I could look at the sentencing guidelines with this case, I could look at, I don’t think there was a gun involved so we didn’t have some of the uglier enhancers but it can’t be mechanical. It goes to what I think is also something that makes judges crazy that I know they know that I think, it’s a very inefficient way of practicing and you have to have the time with the client. You have to be in it, you can’t read something just once. You can’t … And that’s the nature of criminal defense it is not efficient, I don’t know that it’s suppose to be and I think in a way it’s our job as criminal defense lawyers to slow it down and really engage in discernment. Discernment is not formulaic, it’s not linear.

Scott Glovsky:                   What is discernment?

Joy Bertrand:                     Discernment to me also has a spiritual aspect but discernment to me is that really being in a situation and finding it’s truth by … Being in a situation and really, although you just have to fall into it.

Scott Glovsky:                   To get immersed in it?

Joy Bertrand:                     To get immersed in it and it’s from that immersion that you get the clarity coming out of it. So for me this process requires mental space, emotional space and just time to be in it, to be with the client and to have the courage to look at those medical records, to look at the clients experience, which often if they’ve ended up on my desk, wasn’t picket fence American dream.

Scott Glovsky:                   Isn’t it scary when you going into a lock-up like you described earlier to talk with someone who’s been accused of committing a horrific crime where you didn’t bring you pen, you didn’t bring your keys, how do you deal with that?

Joy Bertrand:                     There’s a collateral issue with that in being a woman lawyer going into those lock-ups because we’re often treated very poorly by the guards. We’re often treated as if we’re going in for social visits as opposed to being professionals going into work. It’s a huge problem. There’s been a lot of work lately in the journals about this. How woman attorney’s are treated terribly in lock-ups and often put in danger. I’m rarely afraid of my clients. They need me. However, my clients especially the ones with severe mental illness, they’re not necessarily rational and they may not and I think my fear with Hohaia was that given some of his diagnoses that came out from the work we did, he may not know it’s me.

Scott Glovsky:                   It just feels tremendously sad.

Joy Bertrand:                     You know sad, you can’t get sad. Sadness is paralyzing. You can’t get sad about this, you have to … My father was a therapist and worked in psych hospitals early in my childhood and I think what he taught … and he’s a very good clinician … He taught me by example that if you’re being asked to change a situation, being sad about it is going to do nothing for you or the situation. Be sad, appreciate the tragedy in front of you but then find something else to feel, because you being asked to be a … of change so whether that’s anger, some type of righteousness, some type of urgency to act, that is going to be what actually creates change. Sitting in sadness is not that constructive. You have to feel it and I think the other thing is you start seeing it as a social pattern and then the sadness passes and then you start getting angry, really angry and horrified, at how we tolerate the treatment of our own citizens.

I’ve handled other cases where I had one were the Court questioned me spending $250 dollars on trial clothes that we got at thrift stores for a three week trial.

Scott Glovsky:                   For your client?

Joy Bertrand:                     Hmm mm-hmm (affirmative) for a client and they said “Well the Criminal Justice Act Regulations don’t allow for new clothes” and I said “Well these are from goodwill and re-sale shops” and then I said “You know considering the house my client was arrested in had no hot water and no electricity and was in Northern Arizona, I don’t know what was expected for him in terms of clothing, if I didn’t give it to him.” And the Court cut it. So for me I think the other thing is the sadness gave way very quickly in my career as a prosecutor to see this work as a vocation and if that’s the case, you just, you don’t have time for sadness. You don’t have time to wallow in serving other people, it’s one thing to feel empathy for their suffering but it’s wholly another to just feel like I’ve got to go and process my own sadness. When it’s your vocation there’s a certain urgency to getting up and working every day and knowing you’ve been given a massive responsibility and it doesn’t force you to avoid emotion, I think actually that can get really sick, physically but it does force you to reorganize where you put the emotion.

Scott Glovsky:                   Tell me about that.

Joy Bertrand:                     That you’re on one hand going in the soup with the client to get to the heart of the defense, to get to the emotional core of any case, sorting out the betrayals, sorting out the relationships, storylines. So you have to feel it but you can’t carry it otherwise you know you’ll just spontaneously combust and so it’s an issue of, for me kind of organizing or placing the emotions and also saying well if I’m going to feel it, what am I going to do with it because feeling it for the sake of feeling it for me isn’t that constructive. But saying if I feel grief for my client who lost his wife, who there’s saying he killed, that has to go some place otherwise it’s just like a barnacle on a ship and they start adding up. Whereas if I say, it must have been horrific to learn in the hospital while your stab wounds are being repaired, your wife has died, that must have felt just horrific. I can speak for him now without caring.

Scott Glovsky:                   I know that you a tremendous fighter, where does that come from in Joy Bertrand?

Joy Bertrand:                     It comes in part from my father. He was a maverick and at his funeral I thought it was going to go on all afternoon, of all these people that I had never met before that had worked with him, when he worked as a therapist and a social worker. Talking about how he changed their lives or the little things he would do to stand up for clients and fight for them. I think it also comes a lot from my faith background. My father was an ex-priest, my mother was an ex-nun. I was educated by the Sisters of Providence of Saint Mary of the Woods which has members serving prison time for protesting at the School of America.

Scott Glovsky:                   Tell us about that.

Joy Bertrand:                     Well at the time, talk about a betrayal, at the time Saint Mary Woods college was the oldest catholic women’s college in America. It was founded by Saint Mother Theodore Guerin, the American Saint and I was taught by nuns and clergy who were committed to social justice imparting on the students and an idea that this isn’t really about you. I wear this big gold onyx ring and you get it as a junior, the inscribed SMW faces in towards you. I don’t know if they do it now because they screwed up a whole bunch of, what’s the word …

Scott Glovsky:                   Rituals?

Joy Bertrand:                     Rituals, but at senior graduation mass there would be a whole point where the seniors turn their rings out so the SMW faces out with the message being take it with you out now to the world, it’s not suppose to stay here. So in your freshman year at the Woods, I think within the first month I was there, they were showing us the mission and when nuns are being murdered in Nicaragua and El Salvador students were asking if they could go next. At a time when the church were actually pulling lay people back. So I think the career that I have now and the career track people see isn’t mine. It’s the summation of all these other gifts that have been given. I’m just the vessel for it.

Scott Glovsky:                   What is your goal for the rest of your career?

Joy Bertrand:                     I would be happy handling only shackling and labor cases for the rest of my career. I think-

Scott Glovsky:                   Can you explain what those are?

Joy Bertrand:                     It’s a national problem, still going on regardless of legislation where jails place women in any stage of labor in either leg shackles, arm shackles, both. In some instances they’re shackled during delivery and some simply during the different stages of labor and post … it’s often combined with other jail conditions and medical issues but the real focus is on when women in labor should have restraints on them at all. The American College of Obstetrics and Gynecology have said third trimester, no restraints period. But the litigation has focused simply on labor stages because that just seems to be where the action is now.

Scott Glovsky:                   So you’re fighting for social justice to stop prisons from keeping pregnant women-

Joy Bertrand:                     In shackles, right.

Scott Glovsky:                   Wow, that’s wonderful.

Joy Bertrand:                     Right. That to me, I mean we’ve had some really great cases on our calender but that was the litigation that for me showed me what all the rest of this had been about.

Scott Glovsky:                   What advice do you have for young lawyers?

Joy Bertrand:                     That have already graduated from law school, that I can’t talk out of going. For young lawyers.

Scott Glovsky:                   Tell me more about that, your instinct to talk people out of going to law school?

Joy Bertrand:                     I don’t think law school is healthy and I think law schools are particularly compounded by law schools that are run for profit now. Law schools market themselves as this ticket to making money or I don’t know what. I didn’t go to law school with the intention of being a lawyer so I kind of had a different track but-

Scott Glovsky:                   Where were you headed?

Joy Bertrand:                     Politics. I had a masters degree in public affairs and I dealt with lawyers all day long as a policy analyst and I wanted, this is the law school scam. I wanted what they had because lawyers sounded to me like they knew everything you know. I wanted that, I wanted to be able to have that kind of command, whereas I was just a statistics geek writing policy papers and was the person behind the policy maker and I was totally happy with that but I wanted that command, so that’s why I went to law school. Then I worked in politics after law school and I hadn’t intended on taking a bar. So I mentioned that because I just think I was in law school during a recession where there were a lot of frustrated liberal arts majors and they were there because they felt like there was no other choice. On looking back we had all sorts of choices whether it’s public affairs or social work. If you really want to change the world I think litigation is probably the most slow and inefficient way to do it.

There’s no guarantee that you’re going to make money out of this. I think even those of us that have been out for a decade or two say you know, we have rough years and we have good years, it’s not, unless you work for the government, it’s not a steady stream.

Scott Glovsky:                   So why are you practicing?

Joy Bertrand:                     I don’t know if I had gone to the Trial Lawyers college I still would be.

Scott Glovsky:                   So why are you still practicing? Something changed?

Joy Bertrand:                     The Trial Lawyers college made it survivable to practice personally. If anything it just showed me that there was a whole world of people out there that have that similar commitment to justice and the same I don’t know real just … finding of fence corporate, how much corporate power this country now has dominated, let me rephrase that … I found a group of people that shared my values. That corporation shouldn’t run this country. That the government shouldn’t be sticking its nose into all of our business and thinking it has a right to convictions in criminal cases. But I mean I remain lawyer, part out of a sense of obligation and a trust that I’ll be shown what I’m supposed to do next.

Scott Glovsky:                   You don’t sound very fulfilled?

Joy Bertrand:                     I’ve done a lot with this career. I’m fulfilled in that I know the cases I work are of consequence but I’m not going to say that it doesn’t come without cost.

Scott Glovsky:                   What is the cost?

Joy Bertrand:                     Personally, the cost is to work cases like they need to be worked does not leave a lot of room. They don’t leave a lot of room emotionally, they don’t leave a lot of room time wise and the passion I feel for the work is not, yeah it’s a passion for the service of it, it’s not a passion for the win. Don’t get me wrong I’m a terrible loser but and I like my wins but that’s not why I do it. So that’s why I guess you hear me hesitating when I’m like, from a working stand point I’m never going to be that lawyer oh awesome. I see trials and going to trials as a very solemn undertaking and I see filing civil rights law suits as a really serious engagement. You’re looking at changing government policy, your standing up to some of the most powerful people in your community, if not the country and that is not something that should be done recklessly or lightly, so I’m not going to say the being a lawyer part of my life gives me this joy but, I don’t need it to.

Scott Glovsky:                   How do you deal with the cost of being lawyer that you’re describing?

Joy Bertrand:                     I don’t know that I have, well I think Trial Lawyers college helped me with some of that but I don’t know that I’ve done a good job of that. People are right litigation is a very jealous mistress.

Scott Glovsky:                   Yeah, I know how incredibly hard you work on your cases and how lucky your clients are.

Joy Bertrand:                     Thank you.

Scott Glovsky:                   I’m very thankful that you’ve taken the time to chat with us and you’re doing a phenomenal job causing social change.

Joy Bertrand:                     Thank you.

Scott Glovsky:                   And I want to thank you very much for taking the time to be with us Joy.

Joy Bertrand:                     Thank you, I appreciate it. Thank you for having me.

Scott Glovsky:                   Thank you for joining us today for Trial Lawyer talk. If you like the show I’d really appreciate it if you could give us a good review on iTunes and I love to get your feedback. You can reach me at scottglovsky.wpengine.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’ve published called Finding 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’s 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.