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Transcript for Trial Lawyer Talk, Episode 19, with Heather Barbieri

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Scott Glovksy: Welcome to Trial Lawyer Talk. I’m Scott Glovksy, and I’m your host for this podcast where 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 Heather Barbieri, who is a phenomenal criminal defense lawyer in Plano, Texas. Heather practices in the reddest county in the reddest state in the country, and is an absolutely phenomenal trial lawyer who gets amazing results. Heather, thanks for being with us.

Heather B.: Thanks for having me, Scott.

Scott Glovksy: Can you share with us a story of a case that you worked on that had a profound impact on you?

Heather B.: Probably the case that had the most profound impact on me involved a client of mine by the name of Carl. I met Carl when he walked into my office, and he was being accused of indecency of a child. He was being accused of fondling his step-daughter, and it was being used as a tool in the divorce between himself and his ex-wife, which is also the mother of the teenager who was accusing him.

Scott Glovksy: What happened when you first met him?

Heather B.: Well, he walked in and he looked like a broken man when he walked in. He sat down and he was kind of slumped over. Carl was from a different country, he was from Europe. So he had quite a bit of an accent, and you could just feel that he was a fish out of water.

Scott Glovksy: What did he look like?

Heather B.: He was very attractive. He was probably medium build, blonde gentleman, Scandinavian, and very, very nice, very polite, and had never been charged with a ticket, even a traffic ticket in his entire life. He held a position of great authority at a corporation in the Dallas/Fort Worth area. Since he was also not a citizen, he was facing deportation as well as obviously, the loss of his job. Oh, and did I mention 20 years in prison?

Scott Glovksy: Wow.

Heather B.: Which, the only problem was, is that he was innocent. You could tell. I asked him questions from every angle I can imagine. Sometimes I’ll do that when I first meet with a client, because there’s no sense in going through the entire process if they’re not being honest with me. “Warts and all,” I say, “Just tell me, you know, whether you’re guilty or not. And if you’re guilty then we’re gonna go down a different path, and I’ll help you along the way. That’s what you’re hiring me to do. But if you’re innocent …” It can kind of be more stressful on me when I have an innocent client, because it’s tough when people are accused of crimes.

Especially where I come from, in Collin County, Texas, Plano. People often times will presume that they’re guilty of the offense, and so it’s a bit of an uphill battle. We can tell jurors all day long that, “Well, the burden’s on the State, the burden’s on the State.” Well, the question ends up being, “Well, why would you be accused of something like this? Where there’s smoke, there’s fire.” When I go into an interview like I did with Carl, I know that there’s gonna be a lot that we’re gonna have to deal with, with regard to handling his case, and he’s gonna depend on me. So the first thing that I like to do when I feel like it’s a case that I can take on, because I want to make sure that he’s gonna have the trust in me, because I need all of my clients to have the trust in me in order for me to go fight their case and their cause.

As for the details of the case, his ex-wife and he were having a very turbulent marriage, and I think they had been hot and cold all the time. But he had a step-daughter, who he started to discipline because the mother wasn’t disciplining very often. The mother was fighting with Carl repeatedly and in front the child, who is now becoming a teenager. Well, at one point in time, the daughter said to her mother, “Hey, Carl’s been touching me.” This was at a time when she wanted Carl out of the house. It just so happened that the accusation came right around the time she was disciplined for staying out too late.

Now, you would think, “What would any mother do if she really believed that her daughter was molested by her husband, who she is on the rocks with anyway?” You would obviously go to the police. Well nope, not in this case. In this case, what she did was used it as leverage. She confronted him and said, “My daughter says you’ve been molesting her. Is that true? Is that true?” And he told her, “No.” Begged her to think logically about this. She said, “Get out of my house, and give me all the money.” Meaning, “I want all of the retirement accounts, give me everything that you’ve got in the retirement accounts. I want the house. I want the most expensive car that we have, and I want you out of here. And if you argue with me, I’ll go to the police.”

Now, that could just be his story, right? Except it was memorialized on text messages. She sent numerous text messages saying, “Tick, tock, tick, tock. Give me the money, or I go to the police.” So he was kicked out of the house, she’s telling him, “Write over everything to me, and then I’ll let you go.” He said, “I’m not gonna do that.” So he basically decided that he was gonna fight this. At one point in time she said, “Well, maybe we can reconcile. Why don’t you go tell a therapist what your problem is?” Because she thought he was some kind of a sex addict as well, because he … As a side note, he periodically viewed adult pornography. This was also one of the problems in their marriage.

In one of his moments where he was trying to get back together with her, despite the fact that he was being accused of this by her and her daughter … He was madly in love with this woman. It’s a very strange relationship. So it took me a long time to actually get in there and figure out, “What are these people doing? Why would you even want to be with one another?” But in any event, he went to a therapist, and told the therapist when he got there, in his broken accent, “I’m here because I, so called, touched my step-daughter.”

Well the problem is, in the state of Texas a therapist, if they believe there’s a possibility that a child may have been abused sexually, or physically, or emotionally, they have a duty to report within 48 hours of that abuse, so they had to call Child Protective Services, or the local police department. So the predicament that she was in, is she either had to assume that he was just saying he was accused of it, which means she wouldn’t have to report it.

Scott Glovksy: She, being the therapist.

Heather B.: She, being the therapist. Or, she could take the other angle and be on that safe side, and go ahead and report it and let it work itself out, which is the angle she chose. But in choosing that, the charges came about. At the same exact time, probably within two weeks of each other, the report came from the therapist and the mother went to the police, because he said, “I’m not gonna give you the money. I didn’t do this.”

Then nobody ever called Carl up from the police department to ask him his side of the story, nothing. One day, there was a bang on his apartment door, they smashed open the door, threw him against the wall, arrested him, and threw him in jail, in a foreign country. That began the saga of the case that we had try three different times.

Scott Glovksy: So after he came into your office, what happened next?

Heather B.: After he came into my office, we had an immediate connection. He was a respectable person, he was respectful as well, and you could just tell that he was innocent. He passed a polygraph exam that I had him take. I explained this to the prosecutor, they ignored it. They went after him anyway. So eventually we had to set the case for trial, and we picked our jury, and that therapist came in there, and this is, I’m gonna call it the first trial.

The therapist came in there and said, “I’m pretty sure he said that he did do this.” After a week long trial, we got our verdict. Started our trial, picked the jury on Monday, presented evidence all week, and then the jury was out for most of the day on Friday, into the evening. Then they came back completely deadlocked, six, six.

Scott Glovksy: How did you get to know your client before that first trial?

Heather B.: You mean like in the office, and oh my gosh. I mean, Carl was one of those people who he always wanted to talk. Sometimes we’d get busy and caught up in all the other stuff that we have to do, but he would come in and he would tell me stories of where he’s from and how he grew up, and about … He also had another son who was from a previous relationship who lived with him, and that was just his pride and joy. So he’d come into my office with his son, and this son was so adorable. He would put his head down, he was very shy, but you could just tell there was such a beautiful bond between the two of them. It was kind of sad, because they were on their own now, estranged from the family, but you could tell how close they were.

I started on this journey not knowing him at all, knowing nothing about him, but then I came to the point where we even had him over for dinner. I cannot tell you this, but I don’t have a lot of clients over for dinner. But by the end of the dinner, we had my parents were there, my kids were there, my husband was there, my husband made this wonderful Italian feast. He eventually met another young lady, and he brought her over for the dinner as well, along with his son, and it was like family. He felt so at ease, we felt at ease, and he really felt that I cared about him, and I believed in him.

Scott Glovksy: When you have that kind of a connection, and friendship and love for your client, how did you feel after that first jury verdict of a hung jury?

Heather B.: I was crushed. I couldn’t understand how six people can think that he’s completely innocent, when six other people think he should be in prison for 20 years. Anybody who heard that story had to realize that he was innocent. That’s what I thought. He was crushed. He knew that we would have to start all over again, because where I come from — reddest county in the reddest state — they’re not just gonna dismiss the charges. It’s a mistrial. When it’s a hung jury, then we do a motion for a mistrial, and that’s how it ends up getting mistried.

Normally in a lot of places they’ll go ahead and dismiss the case once a mistrial has been had, but not in Collin County, they’ll just keep fighting. So poor Carl and his family had to muster up the energy to try the case again with me. Fortunately, he had confidence in me, because sometimes clients will go ahead and get rid of the attorney who wasn’t successful in the case, but Carl’s a different kind of guy. He’s so committed and so loyal, I’ve never seen anything like it, but truly. But I was very honored by it, and I wanted to make sure the next time around we really, really killed it, which we did not.

In fact, we almost lost it. We went in there, same thing. However, this time the therapist, her story was a little bit different, but it was consistent enough with what she said before that it was hard for me to impeach her. So at the end of the day, same thing. Picked that jury on Monday, went through the evidence all week long, and then sometime on Friday they said they were hopelessly deadlocked. By this time, after the first hung jury, his head sinks a little bit. Well this time it’s just, ugh, he’s just heartbroken.

Scott Glovksy: How did you feel?

Heather B.: I felt like I failed him. I just could not figure out how the jury didn’t see the obvious fabrication, and then the motive behind it. So what I did was, I went ahead and went in a different route all together. We worked with another co-council, and the two of us collaborated together and decided, “You know what? We’re gonna try this differently.” He didn’t testify in the first two trials, and that’s just the judgment call. So he testified this time, and he was so pure and sincere when he got up there, that I think the jury fell in love with him.

It changed how I feel about people testifying. Even when I’m just watching him up there in that third trial. Pick the jury, put on evidence all week long, then have him testify. Even during that trial, I knew that was the right decision, regardless of what was gonna happen. So the judge wanted to make sure that we had a verdict before the weekend, so we stayed there until 10 o’clock at night on Friday night when the jury returned with a verdict of not guilty on all counts.

Scott Glovksy: How did that make you feel?

Heather B: Oh my goodness. Elated, overjoyed, we were crying. All of us were. I’m texting my husband, he’s telling the family, and it was just, we cared about this case so much. I cared about Carl so much. It was just finally, he was redeemed. Finally, he could get on with his life, this has been hanging over his head for so long. It made me feel a sense of tenacity in myself, and I was just so thankful that I didn’t encourage him to go elsewhere, that I stuck with it too, but his loyalty to me is unbelievable.

Scott Glovksy: What do non-lawyers not understand about the criminal justice system, and the injustice that you see sometimes?

Heather B.: Well generally, that a lot of innocent people are being convicted and put in prison every single day. But it is at a very scary rate at which men predominately, are being falsely accused of sex allegations. It’s rampant now. I talk to professionals in the field, and we think it’s at about 25%. It varies from, some people will say 50%, all the way down to 15.

Scott Glovksy: 50% of what?

Heather B.: Of the allegations are false. I’ve talked to police officers, polygraph examiners, and it’s really at that level, that the false allegations are coming out. So probably about 25%, which means that men, or women could be, predominately men, are having to fight for their life in a situation that the cards are stacked against them because people think, “Nobody would allege something this disgusting occurred unless it was true.”

But with the age of the internet, all you have to do is get on there and you can see on YouTube there is song about how to get rid of your daddy, just say, “He touched me like this.” A lot of people don’t know about that, but you can actually just Google, “How to get rid of your daddy,” and it’ll pull you up to that. It’s a big joke about how kids can easily make up the allegations. It was funny, it was for humor. They teach it, and they teach it amongst one another, peers. You know, “This is all you have to do.”

I think, I don’t really blame the complaining witness, which would normally be called a victim, but if it’s a false allegation, it’s a complaining witness. I don’t normally blame them because the system is set up to treat them differently than you should treat somebody who’s young and spontaneous. Because what’ll typically happen, all cases are different, but what typically happens is: teenager will get angry with let’s say for instance step-dad, and they’ll make an allegation, we call it an outcry.

Once they make that allegation, the whole system surrounds them because victims were demeaned for so long that now it’s gone the opposite direction, the polar opposite direction, where you’re a hero. You’re a victim, you’re a hero, you’re strong, and they rally around complaining witnesses in such a way that the complaining witness is almost trapped, because if they decide to come clean, that they made up the allegations for X, Y, and Z reason, if they eventually come clean, these people will turn against them. They’re friends now.

These people at these advocacy centers become their friend. They give them teddy bears, they give them scholarships, there’s so much that they do for them. So can you imagine what position you would be in if you’re an immature, which oh my gosh, age 14 or 15, I was certainly immature as well, and a little bit today sometimes. But regardless, you cannot put all that pressure on somebody that age, and not expect them to feel trapped. I think the system needs a way out for these young individuals.

Scott Glovksy: Yeah because, do they get criminally prosecuted if they admit that it’s fabricated?

Heather B.: They sure can. It’s called a false report to a peace officer. They’re knowledgeable about that most of the time.

Scott Glovksy: What was your worst moment as a trial lawyer?

Heather B.: Probably, like I said, the best moment was probably the verdict in Carl’s case on the third trial. The corollary might be the verdict on the second trial.

Scott Glovksy: How do you deal with that, when you have a loss that just rips out your soul?

Heather B.: I think that the way I deal with it is, if I win something, if I win a trial, that lasts for a few days. But if I lose one, it lasts for a few months. But what you can’t do as an attorney is make it paralyze you, because you have clients who need you. You could just focus completely on that case, and your loss, and let it fester, and allow yourself such low to self esteem, you can’t really move on from there. But typically, what I’ll do is do everything I can in order to fix the situation. I mean, let’s be honest, sometimes people who are guilty, we go to trial, and they’re found guilty, but if there’s somebody that is found guilty, then I would want to appeal that.

Scott Glovksy: Yeah. I mean, one thing that we all struggle with in this business is how to deal with the pain of losses, because all trial lawyers have losses. The ones that say they win all their cases are either lying, or they don’t try many cases. How we deal with that, because it can be absolutely debilitating? What advice do you have for young lawyers out there about how to deal with this kind of pain?

Heather B.: It may sound cliché, but find something, some type of pastime. Something to do something healthy, because sadly enough in our profession a lot of people will turn to more destructive behaviors. Lots of drinking and even drug use, and people will slip into a depression. There are a lot of attorneys, especially trial attorneys, who go the ultimate step and actually take their own lives.

For me, I try to exercise as much as I can. I’m a prayerful person, I’m Catholic, my husband’s becoming a deacon. I focus a lot on prayer, but even if you’re not a very religious person, there are so many beautiful things that we can focus on to just get our mind off of the loss. In one of those beautiful things, not only family, friends, but how about the next client that needs you? So sometimes you can just bury yourself into your work, and maybe that’s gonna be very therapeutic for you. But as for the young attorneys, I know how much of a struggle it is at the beginning, but that’s the nature of the business, sometimes it’s tougher later.

Scott Glovksy: What do you mean?

Heather B.: I mean, sometimes it was easier to get past things when I was younger, more resilient perhaps. As I get older, I have fewer cases, I get more invested in them. Sometimes it’s harder to get over the loss, but I also think that looking at the silver lining, because a lot of times when we lose a case there might be something that we gained from it as well. Could be a lower, maybe they’re found guilty of a lesser offense or something like that.

Scott Glovksy: I know that of criminal cases that go to trial, the statistics of the defendants that are convicted of the crime is huge. I mean, 90 plus percent, I don’t know the specifics because it varies by state, but how does it feel to be in a profession as a criminal trial lawyer, where statistically you could be, and are, one of the greatest lawyers in the country, but nevertheless, you face defeats, as everybody does?

Heather B.: Well I don’t know if I’m that wonderful, but I mean I do put my heart and soul into all of my cases. My grandfather — his name is Jim Haggerty, and he’s passed away now — but he’s probably my hero when it comes to things like that, because he dealt with loss, and he dealt with it very well. He handled … Do you mind me telling you this short story? He handled a case in New York based on the Attica uprising. It was a prison uprising many, many, many years ago. Due to the politics in New York state at the time, he represented two of the individuals, and they were prisoners who were shot in the yard, and innocent ones. There were a couple of prisoners that were starting a riot, but these guys innocent along the wall, and they were just shot by the guards.

It was quite a controversial case, and it’s very well known. But back to that New York politics, the case was put off for 25 years, and he kept on the case the entire time. People were saying, “There’s no way that we’re gonna win this case. We can’t beat the state of New York, yada, yada.” At the very end of the case, my grandfather handled the two lead plaintiffs out of 350, and he had the two highest verdicts. At the end of the case he told me that the judge, who had been on the case since 25 years before, pulled him aside and said, “A lot of lawyers gave up. They thought it was a losing battle, but after 25 years, 350 plaintiffs …” I’m not perfect on the numbers, “you were the only attorney who stayed on till the end.”

When I talked to my grandfather about that — it was actually just a couple of months before he passed away — he said he would’ve stayed on it forever. Had they lost the case, he would’ve appealed it and never given up. Those women, the widows of the two prisoners, he couldn’t do anything to save the lives of their husbands, but he showed them that he cared. I think that at the end of the day, if they know you care, regardless of what the verdict is, that that’s the most important thing.

Scott Glovksy: Heather, on behalf of the clients you represent, and the people you teach, and most of all on behalf of myself, for you to take the time to share your wisdom with us, thanks for joining us.

Heather B.: Okay, thank you. Appreciate it.

Scott Glovksy: 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.scottglovksy.com. That’s S-C-O-T-T G-L-O-V-S-K-Y dot 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.