E30 Transcript

E30 Transcript

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Chris Patterson 0:06
Hello and welcome to the law down under podcast with barrister Chris Patterson, we will give you insights into the law in New Zealand and Australia, its application and the law's future. Each episode features a new guest who will inspire your interest in the law and give you a greater understanding of the legal issues that help shape our justice system here down under. We thank you for tuning in and enjoy the podcast. This episode of the podcast was a slight deviation from the theme of the podcast, which is the law here down under. As listeners will know, each of the guests are topic experts in the law affecting or shaping the laws of New Zealand and Australia. I super excited to learn that Larry Posner would be in New Zealand to present his cross examination workshop, and I didn't want to miss out on the opportunity of inviting him to join me on the podcast. Larry not only is the leading expert in the United States on cross examination techniques, but he is a world renowned expert on the topic. We discuss his early career, his reasons for writing his book, and we also finish off by discussing some of the lessons he's learned over an illustrious career spanning over 50 years. I'm sure that you'll enjoy and learn a lot from listening to Larry share some of his stories and insights into the science and art of cross examination, joining me today on the law. Down Under podcast is Larry Posner. He is a American lawyer and an expert on the topic of cross examination. I've had a number of guests join me who have written books, and so that aspect of it's not unusual, but it is unusual to have someone who can truly say that they have changed a profession in the way in which the profession addresses a particular area of the law, in this case, the science and techniques associated with the art and science across examination. Larry Larry is the co author of the book cross examination, science and techniques. It's now in its third edition, and is co authored with Roger Dodd. He is also the lead and seminar presenter of Posner on cross which the chapter method, which has revolutionized the American legal profession's view and purpose in the methods of cross examination. Larry, whilst now resident in Hawaii, is a sole practitioner, and he's a trial consultant. He's a past president of the National Association of Criminal Defense Lawyers, and he began his career as a Colorado public defender. He's long been recognized in the best in Lawyers in America, civil as bet on the company, litigation and criminal law, both white collar and non white collar. Larry was trial counsel for many years for the Denver Broncos. If you're if you're got a sports background, you'll know who they are the franchise, and he was part of the trial team that preserved Pat bolin's ownership of the Broncos. Him and his team of lawyers have used their techniques to successfully obtain judgments, judgments in the hundreds of millions us, including one against a national bank. It's an absolute pleasure and thank you, Larry, welcome to New Zealand and welcome to the podcast. Well, thank you for inviting me. Okay, it is truly a pleasure to have you with us. Look, Larry, let's start off with you know a usual question that I ask many guests, and in your case, I do appreciate this, as this is going back a couple of years now, um, what leads you into the law What? What? How did you find your way into law school? Like, what? What was the the motivator?

Larry Pozner 3:47
Well, I knew from the age of 13 that I wanted to be a criminal defense lawyer, so it was always very easy. I'm not saying academically easy. I am saying emotionally easy. I knew have to go to college because they require college to get into law school, and then I have to go to law school because they require a law degree to practice criminal defense. If I could have skipped those steps, I would have and I'm not sure I got most much out of those steps. It seemed to me I learned how to be a criminal defense lawyer after I be graduated, not before, and then I became a public defender, which was my goal, and away we went.

Chris Patterson 4:29
Okay, so let's turn the clock back. This is going back to October 1973 a lot of the listeners probably weren't even born then. Yes, I have to say, even myself. I think I might have been six months old, five out that stage, but you're, you're starting out with the Colorado Springs Public Defense Office. What was the what was that experience like for you in the early 70s, defending people in Colorado Springs?

Larry Pozner 4:55
Well, I was not an odds on. Favorite, I was hired by the state defender system Colorado was a state system that assigns lawyers to offices throughout the state. And after I had been promised a job, they had taken me around to several offices for interviews, and I was very impressed that how hard they were screening to see what office I should be in. What I didn't realize is the reason there were so many interviews is that every office turned me down and said he will never be a trial lawyer. We can spot that he and and the head of the public defender system made a deal with the Colorado Springs office that said, All right, we're going to send him to you against your will, but you can fire him at the end of six months, but you've got to give him six months. I did not know any of this, thank goodness, and I set about learning how to be a criminal defense lawyer, and I didn't get fired, and I only learned the story later, but it's, it's a true story. Law school does not teach us how to be

Unknown Speaker 6:11
trial lawyers. Great, that's so true and

Larry Pozner 6:14
and this notion that some of us are born with it, I reject. It's just a skill set, and it must be learned. And so I've always valued teaching, because it saved me and it saves many of us. We take young lawyers and we say, here are the skills, and let me explain them to you, and you can become very good very quickly. Well, Larry,

Chris Patterson 6:41
look, you're absolutely right. I mean, the learning the hard way, is to make the mistakes yourself. If you can learn from someone else who's made mistakes and they can share that wisdom with you, that's a much better teaching method,

Larry Pozner 6:55
absolutely and this notion that we can learn how to try cases in trial, first, it's not our lives, it's somebody else's life. We may be learning, but they're paying. But the other thing is, they're not enough trials. Trials are increasingly rare, they are expensive, they are hard on the body and the mind. We need to learn how to try a case before trial, not in trial.

Chris Patterson 7:20
Yeah. And also an important part of a lawyer's role. And I understand, on your very first day as a newly minted attorney in Colorado Springs, I think you were sent along to court to deal with a traffic matter, but a speeding and the prosecutor offered you a deal was, well,

Larry Pozner 7:41
I did not understand any of this. The prosecutor said you're charged with a four, and I'll offer you a two. And I didn't know what the four and the two meant. I did not understand that driver's licenses accumulate points for offenses, and if you get too many points the state takes away your license, and so it is. It is imperative in traffic court to minimize the number of points your client is pleading guilty to, but certainly nobody in law school explained it to me. And so when he says you're charged with a four, and I'll give you a two, I don't even know what he's talking about. So

Chris Patterson 8:22
what did you do? I called the office, called a friend. I said,

Larry Pozner 8:26
Listen, guys, I'm over here, and he's offering me a two. What? What's a two? And what did they say? They laughed.

Chris Patterson 8:36
Well, that wouldn't have instilled you with a lot of confidence having someone laughing at the end of

Larry Pozner 8:41
the line, yeah, they laughed, and they said, take the two and come home, okay, and we'll explain it to

Chris Patterson 8:45
you. All right, so you managed to do that? I did. Yeah, okay, and, well, that's look. Would you say? What would be your advice to a young aspiring trial lawyer who wants to learn the craft and the art and the science of it, what would be some of the best advice that you could give them, given your experience through that process,

Larry Pozner 9:12
it's all learnable. It's all learnable rather rapidly. Trial Work is done in a confined environment. It has rules. It has techniques that can be learned. And once you learn the technique, you can do it the rest of your life. And you don't need trials to learn it. It's on paper. You you develop the chapter, the story you want to tell a little at a time, factually. And then you go into court, and you use leading questions, and you become the teacher, not the student. You do not let the witness take over the podium. You you run the show and personality and voice and movement all unimportant. You. It's preparation that is the key, and any voice of confidence, any personality, can be extraordinarily successful if we've prepared. Okay, did

Chris Patterson 10:11
you early on, did you have the benefit of a mentor at all? Did you have someone that helped guide you as a young lawyer,

Larry Pozner 10:17
the head of training in the Colorado public defender system took the time to show me how each part of trial reinforced the other parts, which made perfect sense once he explained it. And then I was fortunate, because while I was in this Colorado Springs office, it was a small office six lawyers, and so there was a lot of feedback. There was a lot of time where you could say, What do I do, how do I handle and having been saddled with me, it was in their best interest to help train me, and they did train me. And just just sitting there talking after court is extraordinarily valuable, and nobody has time to follow each other to the courtroom. Now, you may be in court, watching other lawyers and learning, but mostly we train each other by talking to each other and and that's the value of collegiality. That's the value of chambers. It's the value of being in a public defender office, is the feedback. And I think the most difficult learning environment is if you're a solo practitioner. 100%

Chris Patterson 11:32
I agree with you on each of those points. Now, when did the idea of your book cross examination, science and techniques. When did that idea first germinate?

Larry Pozner 11:44
In the 1980s My goodness, I'm old. I was teaching at the National Criminal Defense College in Macon, Georgia, which is an on your feet program, which I think lawyers around the world are now accustomed to, where you have a you have a problem, and you do a few minutes of an opening, a few minutes of a cross, a few minutes of a closing, get critiqued. And I was there as a faculty member, and I was listening to other faculty members lecture, and they were brilliant, and they were wonderful. And I thought somebody's got to write this down. The book was not me being a genius at trial work. The book was me thinking, there's a lot of people around me who are very good. I need to take notes and put it together. And so, you know, I could see the patterns, and I began to write down how to do things,

Chris Patterson 12:49
and you collaborated with Roger doll. I did,

Larry Pozner 12:51
yeah, he was also on the faculty, okay? And

Chris Patterson 12:54
had you known Roger for long before then? Or No,

Larry Pozner 12:58
Roger and I met while teaching and and I met some of my close associates over the years have been people I've taught with. And once you teach with somebody, then it becomes very easy to say to them, to call them, to to be in their presence at a dinner table and say, let me run something past you, how would you handle and then we listen. And when I listen, I am listening for a pattern. I'm not listening for how to do this. Fact, this day, I am trying to figure out, pardon me, trying to figure out, what is the pattern here, what is the problem and what is its solution, and how does that solution work?

Chris Patterson 13:45
Okay, let's spend a little more, a little bit of time, a few moments talking about where cross examination fits in in a trial. And of course, if it's part of preparation as well, if we go right back to the very beginning or of let's just call it litigation, the litigation life cycle, and it could be criminal or civil. It doesn't really matter, but you know, at some point a dispute is going to arise that. Look, it may be the prosecution disputes or the defense over whether crimes being committed, it might be the plaintiff disputes or the defendant, over whether there's been some breach of some some duties or obligations rights, and something needs to be done to fix that. As lawyers, we start off by taking our legal training and we say, Okay, well, first of all, we need to have a case theory. And there's two parts to a case theory. There's the legal theory, which, of course, all of us have been through. Lawyers have been through law school, and we're spoon fed, force fed, case theory. You know the principles? You know how things. To be applied what the law is, but the second part of legal theory, the second part of case theory, is the factual theory. Now that part isn't taught generally at most law schools, there's very few that do okay, but this is an integral part, and where does cross examination fit into factual theory?

Larry Pozner 15:27
Well, we start with this. The lawyer ought to be the best storyteller on the team. There's something wrong if our client is better at it than we are. So if we start with we are the better trained at storytelling, why would we not make ourselves the heart of the storytelling and cross examination is built for that, because it permits the leading question, which means, really, in a leading question, we are not learning, we are teaching. We are putting forth a fact and asking the witness to respond to us, as opposed to an open ended question, where we put an open ended question to the witness, we receive information from them and we cope with it. What we're doing in cross is we are telling the story of the case factually. It's more natural. It's more convincing, and how we get there is pretty easy. I think it's natural. I think if you call a client into the office, they they show up and they tell you in their own words, this is, I got I got screwed. The guy took advantage of me and defrauded me, and now I owe him a bunch under the contract, and I never should have signed it, because he didn't tell me, or a client says in a criminal context? Well, I did shoot him. I was afraid of him and he was going to hurt me, and was self defense. The client articulates, in their own way, what the theory of the case is. Now, we then use our legal training to figure out the elements, but I think automatically, our brains are hearing the closing. We want to give right from the first moment, and then our job is to gather the facts so we can give that closing very

Chris Patterson 17:29
good points. So as a lawyer, are you saying that? You know, once we've got the story, we then need to formulate the theory and then work out how we're going to prove that theory, and perhaps is that where cross can have a role to play, because there may be some things that we need to prove or disprove, and cross examination may be the way we're going to do that. I

Larry Pozner 17:57
think cross is the most efficient way to prove it, because once we start saying I'm only going to prove this through my witness, now we're committed to calling the witness, and witnesses fumble. Witnesses do not tell stories as well as lawyers tell stories. And so I think cross is the natural place to win the case and minimizes the need to call witnesses. We still may do it, but let's not put the weight of the world on them. Let's see how much we can prove of their theory without them. And then theory of the cases is another one of these phrases. We have used it forever, and we were told it in law school, develop a theory of the case, and then we graduate and people say, What's your theory of the case? I think another way to say it is, what is your narrative? What is the story you want to tell? Because it sounds so much more natural than theory of the case, which sounds so abstract. It's, it's, Hey, my guy shot him, and I'll tell you why we shot him. She's identifying my guy as the robber, but her description is of a guy that is much taller than my guy or so, and so says she saw something, but it was very dark, and I don't think she's a good eyewitness, and I think she's just made human error. It's, it's, it's putting the jury in touch with the realities of life, not the realities of law school.

Chris Patterson 19:33
Yes, and look so jury or judge alone, Fact Finder, are you saying that this is really the process of two competing stories that the Fact Finder is going to have to prefer two competing one of the competing stories, I'm

Larry Pozner 19:52
trying to avoid that. Okay, that's the surprise. Yeah, if there are two, well, this is. Yeah, I understand if there are two competing stories, then a judge or a jury has a difficult problem solving decision as to which to believe. In modern cross we try to get their witnesses who admit facts that help our story, so that we are not saying to a judge or a jury, there's their version and my version and mine is better. What we're saying is your honor, even their witness admitted a, b and c. This takes the judge or the jury off the hook. They are no longer weighing which side do I believe? They say, Well, clearly I can believe this fact because it was admitted by a witness who's not on your side. And if they admitted that fact, the only reason they would admit it isn't that you train them in your office. They're not your your client. The reason they admitted it is, it's true. And then the next thing we learn is, is trial is not a competition between lawyers, not in the least. It isn't about who's the better

Chris Patterson 21:11
lawyer, whatever that means, or between lawyer and witness, absolutely not

Larry Pozner 21:16
between us and witness. A trial is about a burden of proof in a criminal defense case, I am not there to prove innocence. That is very difficult to prove. All I need to show is that there is a doubt based on reason and common sense. And my opponent can be extraordinarily good, can be very polished. So what? So they can be very articulate, but if they run out of facts before they get the proof beyond a reasonable doubt, I win. It's not a competition as to who is the better lawyer. It is a it is a a challenge to the rule of burden of proof.

Chris Patterson 21:57
Yeah. Now this is a point that you also just going back to one of your earlier points that you make, this in your book, about the value of an opposing witness, that you cross examining and that they are, they are a very valuable resource, not to be squandered or wasted. And you point to a number of things you say, at a mission from an opposing witness is worth so much more in the mind, or given so much more weight in the mind of a Fact Finder than your own witness trying to give that point. So that's a value you make. Yes, it's

Larry Pozner 22:31
so much stronger to get an admission. You know, we teach in law school abstractions, but at the heart of the abstraction, there is common sense or the abstraction wouldn't exist. One of the abstractions we teach in law school is an admission against interest, fascinating phrase that nobody used in life until they went to law school, an admission against interest, which says it was not in your interest to admit that fact, and because you have admitted that fact and it hurts you, it has even more credibility, because clearly you would not hurt yourself if you had a choice. But what we're doing in cross is a series of admissions against interest. Cross is not fundamentally about showing that a witness has lie, that's our back foot cross is primarily about getting a witness to tell the truth,

Chris Patterson 23:29
or at least their perception of the truth. Well,

Larry Pozner 23:33
certainly, but, but if an opposing witness has the perception that something is true and it helps us, it's going to be believed, because our opposing counsel cannot argue to a judge or a jury. I know my client said something on the stand, but I don't want you to believe it. Absolutely.

Chris Patterson 23:53
There's a very good point, and I think a large part of this is what you say in the book, is the constructive cross examination. It

Larry Pozner 24:01
is. We're using cross we're not just beating up on people. That's old style. We're we're saying, when a witness takes the stand, they belong to everybody. They take the oath to answer the questions. Let us use our opponents witnesses. So far as it is safe and valuable to get in facts and not hold them back for our witness, if, if my client says he was kicking me and I pulled a gun because I thought he was going to to kick my head off. Well, yes, that's my client's version. But can't we get the complaining witness to admit that he was kicking our client and that he was kicking him repeatedly and that he was aiming for his face? Now if we get that from the opposing party, from the complaining witness, it has more credibility. Okay, now our client may take the stand and say it, but, but a judge or a jury says, check mark, I've I've heard it's all you're doing is verifying that which I've already known,

Chris Patterson 25:09
which is an important part of fact finding is is actually starting off with things like, what are the agreed facts? Because, because that creates an anchor point or a foundation upon which the disputed facts will then be analyzed. Yes

Larry Pozner 25:25
and and judges, judges and juries are reluctant to find a lack of credibility among among police, among government officials, among people of high standing, there is a deference. But when we say to a judge or a jury and who admitted this fact they did see, we're not asking the judge or the jury to make a harsh finding against a person, we're saying, I want you to believe the person. Let me. Let me try it another way. Judges do not like to find that a police officer has deceived.

Chris Patterson 26:13
It's quite a it's quite a big leap for the right to have to take

Larry Pozner 26:17
or a social worker or somebody else in a criminal case. But if we phrase it differently, we get judges writing findings of fact that say and even the police officer admitted A, B and C. So the the judge is saying, don't blame this on me. I'm not. I'm not finding the cop was incredible. I'm doing the opposite. I'm pointing out that the cop himself or herself testified to the following facts which assist the defense. Yes, Nate,

Chris Patterson 26:49
I mean, you refer to this in a large part to the modern method of cross examination. Would it be fair to describe it in part, as almost like a hybrid towards an inquisitor approach, where the lawyer conducting cross examination using sort of more of a constructive cross examination method is is almost going through an inquisitor approach, with the witness to to get the witness to tell their story, but controlling it in a way that the narrative comes out the way the lawyer wants it to be.

Larry Pozner 27:22
Yes, if we're going to be very technical about it, and I am tending toward this, a the evidence in trial comes in through the witness. However, in cross, modern cross, we are not seeking evidence. We are seeking affirmation of evidence that we have given. The leading question says, You did a thing, you saw a thing, you said a thing. I am asking the witness to verify information that I have given and and the the result of this is that we are we're making our lives easier. Because if we do it the other way and ask in an open ended way, what did you see? What did you hear? What did you say? We're betting we can keep up. We're betting we can cope with whatever the answer is. We don't want to see if we can cope. We want the witness to cope with us. We want to say, I put it to you, this is a fact. You witness have a diminished role. You can say, No, that's untrue, but if it's true, you'll admit it, because there's too many penalties. There's too many ways I can prove things if you deny that, which you should admit. We are the giver of information. The witness is a verifier of information. They provide

Chris Patterson 28:54
the confirmation. That's it. Yeah. And now, and hence, the important I'm understanding you say now the importance of the lawyer being the storyteller,

Larry Pozner 29:06
absolutely. And then if we really look deeper into what's happening, what does the witness learn from us? What the witness learns is that we are prepared. What the witness learns is he or she knows what happened. He or she knows what I said or did. This intimidates in an intimidates in an ethical way. It's not loud, it's not flashy. It intimidates by saying, I the lawyer, am prepared to get at the truth. Remember, the object of the trial is to get at the truth, not to expose the lie. Our techniques for for coping with a lie are forced on us. We need them, but it would be better if we didn't. It would be better if the witness admitted the truth rather. Than we exposed, you've hidden the truth. So our first obligation is to get the truth across to a judge or jury. Yeah,

Chris Patterson 30:09
but I guess the practical reality is, is that nine out of 1019, out of 20, if not 99, out of 100 witnesses. There's nothing to be gained in a cross examination by trying to to expose them as not telling the truth. I mean, most witnesses, the utility is the point that you're making, that is to get them to confirm the story that you're telling, that you're intending to address the jury or the judge at the end of the

Larry Pozner 30:37
trial. Yes, where we where we get deep into credibility crosses is where we where we say, there are certain things I can prove you have not told the truth about, and they're so important and so many that I can get the judge or the jury to ignore everything you've said simply because you just can't be trusted. And so sometimes we are into impeachments, not on a selected point, but overall, to say to a judge, just flush this witness. This witness is simply not to be believed. But most of the time, we're taking an individual point, and we're saying, Now you said X, but I have your I have your transcript, I have your police report, I have this or that. It shows you've said it a different way at a different time, and the way you set it first time is the accurate way.

Chris Patterson 31:30
Okay, now where does inference or inferential reasoning fit into cross examination?

Larry Pozner 31:36
Inferences are dangerous. The reason inferences are dangerous. They're necessary but but the reason they're dangerous in cross is because they're not a fact. If I ask a hostile witness, and hostile to me simply means they have skin in the game and they're voting the other way, I ask a hostile witness to agree with my inference, they can say, No, I disagree, and I've gotten nowhere. What we want is to prove up facts and let the judge or the jury derive the inference that is natural, that is logical. But we don't need and should not ask the witness to agree with the inference. We keep the witness, in fact, bound inquiries and let the inference flow in the minds of the only people who matter, people who vote, judge or jury. I

Chris Patterson 32:31
guess this is your point about getting from the witness to confirm certain facts, walking them through so that the inference, to a large degree, saying it is going to speak for itself, it doesn't matter what the answer is that the witness gives the judge and jury are sitting there. They already know what, what conclusion they'll reach from it,

Larry Pozner 32:51
right? If we, if we say self defense, self defense is an abstraction. It is, it is the culmination of, I believe factually, that when faced with the following situation, you should act to defend yourself well, what is the following situation? So if we put forward the facts, the judge or the jury will arrive at the inference. The same thing is true in commercial, civil Yes, when, when we say my client was taken advantage of. My client was sold something under false pretenses. Well, what are the false pretenses? What were the things that were said that were untrue, and how did it cost my client? What? What? What had caused my client to lose money, and then the judge can say, Okay, this fits into what the law says is, is a fraudulent statement or fraud by omission of material. Those are abstractions. But saying to a witness, you will agree, sir, that you omitted to inform my client of material facts. What in the world? Does that mean? Listen, what law school teaches us are abstractions. Well, that's okay. Well,

Chris Patterson 34:12
Laura is an abstraction construct, absolutely, absolutely,

Larry Pozner 34:16
but that's all. What law school is is the learning to appreciate the abstractions. And so we have a fiduciary and then we learned that there is a fiduciary duty, and then we learned that there's such a thing as a breach of a fiduciary duty. We've got abstraction piled on, abstraction on abstraction,

Chris Patterson 34:38
and then when we add, you know, loss to that as well in the future, right? There's another abstraction, exactly,

Larry Pozner 34:45
but if we prove it up factually, these, these words now can have shape to them, yeah,

Chris Patterson 34:53
and look this. I guess this is really, you know, the large importance of that. Distinction between legal theory and case theory. I mean, the law is a construct. It's a set of rules that is meaningless and a complete vacuum unless you've got facts that you can add to them. It's only through the facts that suddenly we've got something that's real. Sure

Larry Pozner 35:17
everybody can agree on a principle of law. Both sides could agree on the principle of law, but they disagree on whether the facts fit that principle, correct,

Chris Patterson 35:27
correct. Let's dive a little bit more deeper into the science behavioral economics, how people take shortcuts to decision. What's that?

Larry Pozner 35:38
Well, it's fascinating. Dan kahaneman, just died, I think a week or two ago, won the Nobel Prize in 2002 in economics. And your listeners say, why would I ever care about such a thing? Yeah. Well, there's two unusual things. Dan Kahneman wins the Nobel Prize in Economics, and he's not an economist. Wow, right. Fun fact, right? Well, fact two, why does he win the Nobel Prize in Economics? Because he says and proves all economic thought has been erroneous. Your entire science is erroneous. You built the science of economics in economics, we think of economics as dollars. It's just decision making in matters of importance. You built it on the theory of the reasonable person. The reasonable person gathers all available information before making a decision, considers the information logically and makes the decision, which is logical. That's just not true. People don't gather the information. They make very quick judgments. And the reason we make quick judgments is it's evolutionary. Our brains were designed to help us with survival. When you saw the strange animal, you did not say, I think I will stand still and gather further information. You get eaten by the tiger. And so we developed quick reactions based on limited information. And the next thing is, we don't behave logically. We take the shortcuts. Now the shortcuts often work, but often don't work. Let me give you an example sure economic thought is a person will make a decision based on the logic of the situation, and will always pick that which is to their advantage. If I tell a person, I have 100 marbles in this in this jar, and and 51 are green, and and 49 are blue. And if you can pick a green marble, I will give you $100 but if you pick a blue marble, you must give me $100 economic thought was that the person says, Okay, I will do that because it's 5149 in my favor. The odds of beta, right? Nobody takes the bet. It's not, it's not. They say, I won't bet we could make it 5253 54 the studies say you must get very, very close to 66 you must get overwhelming favorable odds. Why is that? Because we hate loss more than we love an equal gain, a loss, a loss of $100 bothers us a great deal more than a win of

Chris Patterson 38:53
$100 significantly more even, I think the studies say absolutely

Larry Pozner 38:57
and so and and another part of the human mind, once we make a threshold decision, we look for information that we're right. We are not good as as human beings at saying, Let me question my own judgment. Our minds are biased. We look for information that tells us My first thought was

Chris Patterson 39:19
right. Let me confirmation bias, absolutely.

Larry Pozner 39:23
Let me give you an example, when President Trump has a phone call with the prime minister of Ukraine, and it's not taped, but, but there are notes as to what happened. Yeah. Why is it that the Democratic Party in the United States can say, this is a horrible phone call, and it has a quid pro quo. You're going to help me, or I'm not going to help you. And the Republicans can say this phone call is absolutely appropriate, and they're, they're looking at the same phone call. Neither one is, is lying same. Of facts, absolutely the same set of facts, but in the minds, when we're on the side of something, we look for the evidence that tells us we're right. And so there's biased thinking, well, this is very important, because we need, we need to start winning votes with a judge or a jury very early in the case

Chris Patterson 40:21
would an example of this sort of behavioral economics of thinking. Would there be? For example, stereotyping. You know, when you get a witness in the witness box, everyone starts stereotyping because it's a human characteristic.

Larry Pozner 40:36
Absolutely, it's called the halo heuristic, once we have an initial impression of a person, we tend to think of them only in that box. If, if I give you some discussions of a human being, and I begin the discussion with their diligent they work very hard. They are well educated, and I and I then say they have a bad temper, and they can lash out, and they frequently make decisions too quickly, you will be more biased to believe them, because I began the discussion with the positive characteristics. Now, if we take the identical list of characteristics and read them to a person in a different order, inside of two minutes, we create a different impression. So if it when the cop takes the stand, many people in society are ready to believe the cop, because the COP is an authority figure, yes, but if we begin our cross with sloppy police work, it is likely that we can rebrand them, that we can, we can, we can characterize them in such a way that a jury says you have let me down with your bad police work. Well, we don't want them to get on a roll. Our impeachment needs to come earlier in the cross, rather than later. So mode of interest and bias is a way of of changing people's perception of a witness. Well, we need to do those those chapters earlier in cross. So

Chris Patterson 42:15
yeah, and you make this point in your book, and I'm not trying to give away the secret sauce here, of which, and I'd encourage anyone who, who is interested in cross examination, or, you know, particularly if you wanted to get better at it. You know, the book is a fantastic resource, but

Larry Pozner 42:33
it's a get from America. I'm told it's, it's very difficult to order books from America. Yeah,

Chris Patterson 42:38
well, it's, it's one of the disadvantages of being probably the furthest country from America that you can get to. You know, although in New Zealand does its best to have direct flights, but it's a long flight.

Larry Pozner 42:53
Write me a note, and I'll work at Posner on cross@gmail.com, and I'll try to help you. But it is difficult. It is

Chris Patterson 43:02
look like you can't walk into your average bookstore, and sitting there, it certainly is. And look, and I know because I've had discussions with Alexis Nexus, who are the New Zealand distributor, yes, and they have said to me, it's a two, three week. Wait, it's

Larry Pozner 43:17
the book at least. Yeah, please, unless you think

Chris Patterson 43:21
it's coming by the slow boat. But

Larry Pozner 43:23
I think it is coming from the slow boat. I think nobody wants to the book weighs three and a half pounds. Nobody wants to pay the freight on a on a, you know, United Airlines. They want to put it in a barge. Yeah,

Chris Patterson 43:36
absolutely the other so the other side of it is that if you, if you do want to get the book, it is available as an e book, so you can get it instantly if you're, if you're e book and client. Let's go back to the science a little bit more, you know. And again, in your book, you do mention, and there is this, there's a section on there, on, you know, some of the cognitive neuroscience. And particularly, you make the point that one of the reasons for preparing cross examination is, is that the, you know, the trial Council has quite a Herculean task ahead of themselves. You know, well, you made the point before you need to be the master of the facts, and you need to demonstrate that to the witness. Now, that, in itself, isn't necessarily an easy thing to do, but in terms of how you're going to conduct the cross examination, you make the point this is where the preparation is essential, because of the way our brains work. Now, can you tell us more about that? Well,

Larry Pozner 44:34
the brain does not react well to pressure, to tension. We have a limited number of neural resources operating at any one time, and we can exhaust them, and when they are exhausted, we make bad decisions. Let me give you a common example. Sometimes we're reading a police report, a discovery, something in. We realize we've been reading the same page over and over and over and we can't remember what's on the page. Our brain is tired. We need to take a break. Well, anxiety tires the brain even faster. If we are conceptualizing cross examination from the podium in trial, we are constantly problem solving, and we are exhausting our own brain to the extent that we've written our crosses and know what we want to do in what order, what documents we need. We are no longer problem solving those problems, we are not using our neural resources in trial for the purpose of I wonder what I should ask next. This gives us more neural resources to listen to the progress we're making and say often, gee, I've just won this point. I don't need to keep going. Or sometimes we say, I'm not going to win this point with this witness. Let's move on. Let's not dig deeper. So really, what we're doing is we're using our brain, our neural resources, more productively with a modern approach to cross

Chris Patterson 46:21
now, of course, there's also for the for trial counsel. It's a it's a multi tasking event, because you're not only having to ask the questions, listen to the answers, and in your book, you you make the point. It's an imperativeness, or the importance of keeping eye contact with the witness, particularly when it's getting tough. But isn't there also a role to for the for the examiner, a trial lawyer, doing the cross examination, conducting it, to also somehow keep an eye on on the judge or the jury, the fact finder, to try and see if there's some feedback being given, particularly in body language, on on how that progress is going. I think there is a role.

Larry Pozner 47:11
However, each of us individually has a different comfort zone. For me, I am by and large, consumed with keeping my eye on the witness. I am not very good at my eye on a witness and the judge and the jury. However, because I've preserved my neural resources, because I'm scripted, I can catch the judge making a face. I can see the jurors putting down their pen and paper because they don't believe the witness. I'm not looking for it, but I'm more able to see it without effort because, because I'm not saving effort for them, I have left over brain processing power because I haven't used it to figure out. I wonder what I should ask next. I think there are people who are exquisite at at picking up all of the cues. I'm not among them, but I can pick up the cues because I've left myself room mentally. I'm not absorbed with what should I ask that's on the paper, but you're right. We get we get cues all the time, and we call it trial judgment, but it really isn't. When we call it trial judgment, we are implying, because of our years in trial, we have learned things. That's not really what's happening. It's social judgment. Trial is just it's just a social interaction with particular rules. We've been to a party and realized that we're talking to somebody, and they're fascinating, and they're enjoying talking to us, and we're enjoying talking to them, and we've seen situations we've watched from across the room and not even been able to hear what two people are saying and realize these two people are arguing, and they're in a social situation. They're not loud, they're not ugly, they're not pointing, and we can look at their facial expressions and say these two people are arguing. What we're doing in trial is we're just taking things we've learned socially and applying them

Chris Patterson 49:22
in a courtroom setting. Absolutely, yeah, and these are important skills, and also the skills that can be taught. Yes,

Larry Pozner 49:33
we've got to get away from this notion that trial lawyers are born. That's absurd. There's nothing natural about being a trial lawyer. It's it's difficult work, but if we prepare the stories we want to tell, then we feel more confident as we tell them in court, then we are more persuasive. Not because of oratory, not because of gestures. We're more persuasive because we've stacked up the facts logically. So we can learn the techniques outside of trial and employ them in trial. Trials not the place to go to learn how to try a case. Yeah,

Chris Patterson 50:19
no. Very good point and, and I guess for some trial lawyers, or aspiring trial lawyers, you're saying actually a lot of the skills that are going to be essential for them to be effective, they can actually learn out of the courtroom, often more in social settings. Absolutely, we've,

Larry Pozner 50:39
we've, we've tried to mythological lies it. We've, we've tried, it's such an egocentric profession, and it does not serve us well, and the egocentric lawyers at the top of the heap need to convince us that they're great and we're not, and it's just not true. What we can do is we can become very good, very early, with preparation, with systematic preparation, of the stories we want to tell, the facts we want to use.

Chris Patterson 51:14
Now you've raised the point about ego in your book. I've one of the takeouts I got from that is that the ego needs to be put into check, because it can be very dangerous for a trial lawyer, and particularly have devastating effects for their client if the ego isn't kept in check.

Larry Pozner 51:37
Yes, we're it's not a contest between us and the witness. It does not even matter if the witness perceives that we're winning. They don't get a vote. Yeah, and men of our best crosses are getting witnesses to quietly say yes to things where a judge or jury says, Wow, that really helps. But our voice isn't Wow, it's our gestures. We do not want to give away that we're winning, and so we rise to the bait. Sometimes the witness one up me, so I'll one up the witness. It's just getting in the way. Think of it this way. Trial is a classroom, and our grade is how well the students do, not how well we do. The only valid grade of a teacher is, how do the students do? Students are the jurors or the judge? Have we taught our case and and so we need to be quiet and efficient, not loud and angry. Very good point.

Chris Patterson 52:43
Last bit of, sort of some of the science before we talk about the chapter, method of cross examination. A bit more again, on the area of cognitive this time more cognitive psychology you do. May you address in your book about how the brain prefers to acquire information and how that operates. Can you tell us a little bit about

Larry Pozner 53:03
that? Sure, we are learning so much more about cognitive neuroscience in the last 234, decades, and the reason we are is because of the FMRI machine. What happens is we are now capable of putting people in a machine, and the machine telling us, showing us what parts of the brain are activated by what things so, for instance, we can read a story to somebody who's inside the machine and see how their brain is is reacting to various emotional components. So what we learn about about the brain is that the brain wants information in small bites. The brain does not want a a long stream of facts that the brain must break down into individual bundles. If we will break our stories into individual bundles, we have relieved the brain. The brain can learn. The thing we learn is when the brain gets tired, when the brain says, You're making this hard, the brain turns off. It can listen, but it won't remember and it won't problem solve. It may hear the words but not perceive the meaning of the words. We've got to make it easy for a judgera to follow our points. And

Chris Patterson 54:36
I guess this links into why you advocate very strongly throughout your book this, this chapter method of cross examination, is because, is it because of that? Well, one of those points,

Larry Pozner 54:51
it's because it's just natural if I had an easier way to. Each I would do it. I'm looking for the easiest way for me to prepare and present, and the easiest way I found is to look at it as a series of small stories, and prepare each small story. And I mean small story, I mean minute long, because that's what life is. It's it's a thing followed by a thing followed by a thing. Now, now each part of the story may influence a later part, but that's how life goes. We do a thing and the thing leads to a thing which leads to a thing. Take self defense. We say my client acted in self defense. Well, there's an abstraction. We say. What do we mean? Well, he was frightened. Well, there's an abstraction. So whose turf were they on? What time of day or night was it? Did the did the complaining witness take off his leather coat? Did he swing the coat? Did he take a step forward versus a step to the side versus a step to the back? Did he have his friends with him? How many friends? How big were the friends in a fight that's two minutes long? There could be 20 stories now. There may be 12 that we hate, so we cross on the eight that we love. We don't have an obligation to say, let's go through every part of the case. It's, it's modern crosses. Let's go through the parts of the case that assist me. Yeah, in

Chris Patterson 56:33
New Zealand, we do have this, this obligation that when we've got a witness who may know something that's relevant to a case and it's going to be in dispute that we really have to put it to them. But I understand your point is that with your planning of your cross examination, focus on the points that are in highlight that are going to be good for your case, and provide the contextual factual background that's going to lead to the point, presumably, that you're going to make in your closing Exactly.

Larry Pozner 57:06
Let's, let's take the complaining witness hurls and insult at our client. Yeah, okay, they'll admit that if we ask it. Let's take our client hurls and insult back. I don't need that. It may be true, but it's not in contention. I don't have to say I put it to you, sir, and then my client insulted you. I don't need that chapter that's for the Crown to bring out if they wish, but I don't need to do and then my client did this, and then you did this, and then my client did we're selecting the things that are most beneficial to our narrative, okay? And then,

Chris Patterson 57:47
and this is, I guess, what you talk about when you talk about Chapter bundles, that is linking, or telling big stories by linking them with smaller stories, sure.

Larry Pozner 57:55
And that's, that's again, it's life. Somebody says, How was the party? And we say, well, the party was a lot of fun. Well, there's an abstraction. Well, why was very good food. There was an open bar. I saw lawyers there that I haven't seen in months because everybody's been locked down. And we take it apart and we say, why did we enjoy the evening? Well, that's what life is, life is a series of events, and what a chapter bundle is is a recognition that most things that happen are a combination of facts, not a simple fact in isolation. So we break these things down into their smaller component stories and tell them one after the other, so that the context helps.

Chris Patterson 58:45
So in terms of saying that one after the other, you're talking about sequencing. What's the role of sequencing in preparing and executing cross examination?

Larry Pozner 58:56
Well, sequencing is a modern approach that says we don't necessarily have to say, let me begin at the beginning and go through to the end. Remember what we said about the halo effect that people, people form a quick opinion of a witness if, if we say witness has poor credibility if we say a witness has changed their story on what they saw, we may want to lead with those chapters and then get into other things. Now we may need to show where they were, put some context in but, but what we're doing in sequencing is we're taking those chapters that we've written and we're laying them out on the table, and we're saying to ourselves, what is the order I wish to do this in? If, if our client in a civil case was misled into making an investment, and there were three things that misled them, we don't have to start. With the first thing we might start with the biggest thing, sure, and that may have been recent. So we're not saying, I must go chronologically. We're saying, What has the greatest impact?

Chris Patterson 1:00:11
Yeah, what? What is going to sort of create that, well, moment early on, and get the jury or the judge thinking about it,

Larry Pozner 1:00:18
that's right, yeah. And so sequencing becomes very easy once we've written our chapters, because now they're on individual pages and and then it's much easier to say, What order do I want to do them in? And then remember, in this concept of Chapter bundles, when you have a story that breaks down into a series of smaller stories, self defense. Once you are into a bundle, stay in the bundle. In other words, if we're talking about what happened that night at the fight, we don't want to take a detour out of the fight and say, by the way, you'd fought with my client a year ago over something else that's a different story once we're in the fight. Let's do the fight once we're into the memo. What are all the things that are wrong with the memo?

Chris Patterson 1:01:09
Look, I know exactly what you're saying. I just want to now move to an area that certainly trial lawyers will love to hear you talking about, and that is questioning techniques to control witnesses. Because anyone who's done enough trials will have had a witness who who certainly wants to run it their own way, and keeping control of them is essential. So, you know, how do we control you know, what are some of the ways that a trial lawyer can control control a witness and cross examination?

Larry Pozner 1:01:46
The easiest ways are always the best ways. Questions need to be leading Yeah, because without a leading question, we're giving permission for the witness to go where they want. We deny permission. We say, answer my leading question. Next thing is, keep the question short, and the third thing is, keep them in bundles that logically relate to each other, so a jury can spot an answer that is illogical. Now, once a witness begins to evade, our heart goes, pitter Pat. Fight or Flight starts within us. It is important to recognize the most fundamental point about what is happening. If the witness is evading, it's because they don't like that question. If they like that fact, they'd be pouncing on it an evasion, is an admission by a witness that they don't want to answer that fact. Why would we leave it? Our first instinct is, let's get back to my fact.

Chris Patterson 1:02:52
Okay, now, what about the use of questions that deprive witnesses of time, you know, so they're not given the talking stick, and then they can go off on their own tangent. Yeah, that's

Larry Pozner 1:03:05
very good, the talking stick. We don't give them the talking stick. What we're doing is we are asking the witness to respond to us. We are making ourselves the storyteller, so we deprive them of of an opportunity to take over the narrative, to take over the podium. And it is easier to keep them in line than to get them in line after out of line. So it's easier if we say right from the beginning, I will propose a fact I believe to be true, and you will respond to that. And if you don't respond, I will force you to respond, not I will chase you down the rabbit hole into wherever you're going and see if I can best you. What we're saying to the witness is this goes better for everybody, if you will, answer my question

Chris Patterson 1:04:03
now. Now, is that different too? Because you do in your book make the point that there are mistakes that cross examiners can make, and one of them is doing a deal with the witness.

Larry Pozner 1:04:14
Yes, we see, we give away our nervousness. Of course, we're nervous, but if we say to a witness, I'm going to ask you simple questions, and they call for yes or no answers, will you promise me to answer yes or no? We're showing weakness. We're trying. We're trying to get a commitment that I don't think we're entitled to just go to work. In other words, we say to a witness, think about this, no matter how nervous we are, this is our profession. We picked it. Imagine how the witness feels. They are really far more nervous than we are. What we want to say to the witness is, you are in a strange environment, but it isn't. Strange for me. This is another day of the office. This is this is home I own, this room. I have trained my entire life for this room, and I will talk to you in simple words. I will not be demeaning, I will not be confusing, I will not play tricks. I will ask you straight forward leading questions, and you will respond, and you will get through the day easier, and if you try to deceive, I have a group of tactics available. One of the most frequent is I'll show a prior inconsistent statement, I will bring out a transcript, I'll bring out a police report, and I will show you. No, no, it's not what you said before. I will do something that says to you, you would have been better off being honest.

Chris Patterson 1:05:49
So if you were uncomfortable now, you're going to be far more uncomfortable if you, if you, if you, if you go

Larry Pozner 1:05:54
off script, absolutely and when you the witness, go off script, here's what you are doing cognitive neuroscience. You are problem solving. You are problem solving. How do you evade me? You are doing it in real time, under pressure. It's not likely you'll do it. Well, I don't want you to do it, but to the extent you the witness do it. You know what's going to happen? You know, tire your brain out, and the tired brain makes more mistakes, says the truly stupid thing. And people say to us, wow, you should have seen the cross. It was unbelievable. Usually, what has happened is, is the lawyer is just doing regular good work, just pounding fact, fact, fact, the witness is trying to deceive. And in trying to deceive, in problem solving, they have said something pathetically stupid, and we give the lawyer credit for being a great cross examiner, but probably for the wrong reason. They produced it, but it wasn't their intention. Their intention was simply, I'm going to ask you another leading question, and another and another, and you, on your own, said something stupid, and I'm prepared enough to take advantage of it. That's all. Yeah,

Chris Patterson 1:07:20
I guess what you're saying is often what appears to be a masterful cross examination is a combination of of a number of factors, but one of the combination, or one of the factors in there is possibly the witnesses in aptitude to answering questions, the witnesses

Larry Pozner 1:07:36
fatigue and And the more a witness fights, the more likely they are to say the dumb thing. Let me give you an example. I had an expert witness recently in a case, and when I say an expert, I mean the expert in his field, in trust, faculty at Harvard. And if you read the transcript of the cross done by my opponent, the opponent would ask a question, and my expert would say the word yes, repeatedly said the word yes. Now, reading a transcript, somebody would say, why isn't he fighting yet I thought this was the best expert I'd ever had. Why? Because the question as phrased was honestly yes and yes gives away the least amount of information. The witness had enough, enough savvy, enough confidence to realize, if I the lawyer wanted an explanation, I could stand up in redirect and ask for it, but it isn't for the witness to try to figure out how to lawyer the case. So, so good,

Chris Patterson 1:08:55
good advice for anyone listening about whether the power of re examination, that's that spot on, right? And

Larry Pozner 1:09:01
it's not if we try to take these witnesses who are nervous to begin with and tell them fight back. Lord knows what they're going to say, the person most able to win the lawsuit is the lawyer. That's it. We are a better guide to the evidence, so let's not give up our role in in and try to encourage the lay person to talk more. Yeah,

Chris Patterson 1:09:31
it's very, very, very correct. I've got a couple Larry I've got a couple more about techniques for controlling witnesses, and then I want to move chapters or topics, so forming questions that shrink the field of evasion. Now, what does that mean?

Larry Pozner 1:09:52
Well, if I say to you, what did you do next? I don't know what you're going to say. I think. Think I know, but I don't, because you may say, Well, my first thought was the time, five years ago, that he beat up his girlfriend. You see what happened is, is I am thinking, I know where you're going to go, but I've given you permission to go wherever you want. We shrink the field of evasion by making the question very small and very direct, then you did X, okay. Now, if they evade, everybody can spot the evasion, everybody, the jury, the judge, can say, wait a minute, the question was very small, very straightforward, and you didn't answer it.

Chris Patterson 1:10:38
Yep, don't. Don't open too many doors, don't

Larry Pozner 1:10:41
it's right, it's let's stop betting we're faster than they are. Let's start saying, let's just keep this under control. A moment at a time, a question at a time

Chris Patterson 1:10:56
about fact grouping, grouping facts to use your opponents, witnesses to tell their stories or our stories,

Larry Pozner 1:11:03
but what we've done, historically in old style cross, is we saved up things for our witness, so we've made a longer agenda, so that makes the direct exam more difficult longer and makes the opportunity for our witness to say the dumb thing more likely, what we're doing in modern cross is we're saying, what facts can I get from an opposing witness so that I don't need to Save it up for my witness? It's a very conservative method of trial work. People say the conservative method, the old style conservatives. Well, we'll go over this in the office, and I'll put my client on to say it. I'll put my witness on that's not conservative. That's risk taking. The risk is lessened if I have a plan to get your witness to admit something. Yeah,

Chris Patterson 1:12:07
that's a really good, good way to for us to transition now into I just want to pick up on some of the things you've learned over, over your illustrious career. I'm just reading through some points that you've that you've made in an article that you wrote. One of the points that you you make is you say, Never follow a brilliant inspiration in the midst of in the midst of a trial, yeah.

Larry Pozner 1:12:35
What? Why would we think that, under pressure, in a courtroom, a new thought is valid if we didn't figure it out in the office in all of the weeks and months preparing for trial. How did it escape our attention? It is more likely that in the excitement, in the adrenaline we are, we are leaping at a conclusion, the way to to win a trial, and not, not every trial can be won. Let's make sure we understand that. But we we look at a trial and we say, what maximizes my chance of winning, and then we stick to that plan. Variations from the plan decrease our chance of winning. It is it is so unlikely that there is a brilliant new path to victory that we saw only in trial. Now what can happen is that a witness can say something we never thought they'd admit, and our case got immeasurably stronger, but still, that was a reaction to our planned cross that wasn't out of the blue. But when we when we are at a podium and we say, I see a whole new subject area that I want to inquire on don't do it. When we teach first year law in the United States, we have a course called civil procedure, what? What are, what are the rules of of course, right? Yeah. And we teach depositions and interrogatories and requests for production of documents. We teach the ways you can ask for facts before trial. Before trial. Trial is not the time to do discovery. Trial is not the time to say, you know, there's something I've always wondered about. I think I'll ask it now. We're not prepared. We don't have a safety net, so stick to the plan. Okay,

Chris Patterson 1:14:50
great, great advice. One of the one of the other pieces, so many great things in here. Don't know where to, where to carry on. I'll move on to the. One though, and you make the point that your 10 greatest victories, seven of them will be deals. Nobody will hear about the deals, but they'll count just as much. Yeah, we, we so true, so true. We

Larry Pozner 1:15:15
trial is what we remember, and trials the most visible thing we do, but great lawyering is designed to minimize risks to a client and to gain for clients that which they need, if we gain for a client that which they need without a trial, I think it is. I think it's obvious that's better than gaining for a client what they need with a trial. A trial represents risk. If we can get what we need for a client without the risk and without the cost, why wouldn't we? Now we don't reward that because it's not very flashy. Clients like it,

Chris Patterson 1:16:00
funny enough, that's what the clients actually engage us to do, is to resolve the matter. Yes, they don't come to us and say, We want you to take this to trial.

Larry Pozner 1:16:11
Trial is where you go, and you have not accomplished your goal without trial. Now we need to know how to try case, because what we say to an opponent is there are reasons you should give me what I am seeking, because if you don't give it to me, I can get them in another way. Well,

Chris Patterson 1:16:30
it's the it's the backup mechanism for resolving disputes, but it certainly shouldn't be the primary focus. You see. The odd thing about this, I'll just share something with you, is, here in New Zealand, we have this, this in a bar of barristers called King's councils. You know, these are, these are silks. And we've just had a round where aspiring junior members of the bar put their name forward to become a become a silk. Take silk. And there's a criteria. There's some cry object. They're supposed to be objective. I'm not too sure how strictly it's applied, but they ask you, you know, what are all the cases that you've been involved in the last five years? Now, I didn't apply in this round, and I didn't apply in the last round either, but I did have a colleague this round was asking me to have a look at the application. And I said, Hey, you haven't mentioned anywhere in here any of the settlements that you've done. And they said to me, Well, they're just asking for the trials. And I said, Well, I think you should put in the cases that you've settled and put the name of the mediator, if it was at a mediator, put their name in there that they were the mediator, because, you know, that's your you know, these are your greatest victories is that you prevented something from going to trial, and you got a great outcome for your client,

Larry Pozner 1:17:52
exactly. And how did we win in the mediation? Yeah, how we won in the mediation is we prepared our facts so that we demonstrated to the mediator and the opponent that we would win in trial, yeah,

Chris Patterson 1:18:05
or certainly, that the risks were high enough for them to say, I would want to see could

Larry Pozner 1:18:10
be worse if I don't settle. But you see again, it's the preparation. It's you say to the mediation, nobody's going to believe their client. Well, that's an abstraction. You say to a mediator, let me show you what they wrote in this in this memo to investors, and let me show you why in three places, it is misleading. Now there's a fact for the mediator to go to the other side and say, I don't know that you're going to survive this language. We should not hide from our opponent the strengths of our case and the weaknesses of their case. When we hide what we intend to do at trial, we make trial even more likely. What we want is to say, let me tell you how I'm going to propose to win. We want them to consider it. And so it doesn't matter how much we show them, they'll always think we had stuff anyway.

Chris Patterson 1:19:06
Yeah, exactly. You're right. And of course, again, I'm kind of going through some of these, these pieces of advice in here. It's such a great gold mine. You do make the point that preparation has stole the greatest technique for winning? Yeah, hands down. It was before it was the in installers. Now, yeah, we, we idolize

Larry Pozner 1:19:21
glib and showmanship, and they are whipped cream. They are not substance. And in fact, they get us in trouble as much as they help when you get loud and demonstrative, then you can, you can get a judge to shut you down, you could get a juror that says, this is, I don't want to listen to this. Quiet is a more effective way. The quiet certainty of I know the facts, and we will get to the facts. Yeah,

Chris Patterson 1:19:56
you also make a point, and this rings very loud here in. New Zealand that the particularly in the criminal jurisdiction, but the private bar has no right to look down on public defenders. Public defenders have no right to look down on the private bar, but both do, and we all lose.

Larry Pozner 1:20:15
Yeah, it's we. There is a wonderful relationship the private bar sometimes has more money to engage experts and to do novel things that we learn from as public defenders. The public defenders have day after day in court and learn, what are the arguments, what are the methods that this judge appreciates we learn from each other, but let me say, in the United States, in order to be a good criminal defense lawyer, it is likely not necessary, but likely that you are a public defender, first, it's where

Chris Patterson 1:21:01
we begin. Why? Great training grant, right?

Larry Pozner 1:21:05
And so when I went into private practice, and now I'm charging and now a client is coming to me, I wanted to say, what do you think I only got good last week? Do you think that because I'm now charging money, I'm better than when I was free. No, all that's happened is is you're paying more. If you in the United States, you're rich. You could find a good lawyer. You are poor. You can find a good lawyer. The middle class is the one who gets squeezed. They're not so poor that they can have a public defender, and they're not so rich they can afford a well prepared lawyer. And

Chris Patterson 1:21:49
the same applies here in New Zealand and Australia as well. And that gap between well of the middle class has been widening over the years, and it's a real it's actually a real concern. I want to talk now you're talking about learning. You make the point. You know, be proud of yourself when you take the time to help another defense lawyer, or, in fact, any lawyer with their problem, be prouder when another lawyer takes the time to help you. The sharing of strengths is what distinguishes the criminal defense bar. But I think that could apply across the whole point.

Larry Pozner 1:22:25
It does, but we see it more in criminal defense. In criminal defense, I could call you now, having never met you, and say, I must appear in the High Court in front of Judge, so and so. Could you, I know you've done a trial in front of Judge, so and so, or you've been there many times. Tell me about his or her personality, and likely is not you will take the time to tell me. You will not say to me, who in the world are you? There's nothing in this for me, why would I take that? You will do it. However, it's much more difficult to call a civil lawyer that we've never met and ask the same thing.

Chris Patterson 1:23:11
Well, yeah, look, I tend to agree with you, I think with the criminal defense bar, whether it's some form of shared trauma that they all experience, yes, brings them together is different from the rather now artificial segregation of the civil commercial bar, where often each other is seen as competitors and don't have the interaction all the time, which is a shame. I mean, these things are corrosive to us. Being able to call ourselves a united profession

Larry Pozner 1:23:49
in the criminal defense community, it is increasingly common to get online and say, does anybody have a motion about has anybody dealt with this expert? Can anybody tell me and to get a response from the people who are in that, that group, that online group? Yeah,

Chris Patterson 1:24:12
no, that, look, that's a that's a really good point. I know from my colleagues that are in criminal defense chambers. I mean, they, they put so much value on their colleagues and sounding boards and sources of of advice before we end up I'll move on to what I see to be one of, you know, very critical part of being a lawyer and the importance of it. And I'll just take, I want to talk about reputation. Just take a step back and say, many years ago. I mean, I've got teenage sons, but I remember when they were young. And I've said it the over the years. I don't know if any of it's ever sunk in. I hope it does is that I've said, you know, there is a hierarchy of of importance, of things to keep in mind. And or to look after, I should say, and I say to them, the first thing is your health. If you don't have your health, physical and mental, everything else will slide in life. You know, it's, it's so important. And lawyers, we we need to do more to look after our our health. You know, colleagues, you know, had a lost colleague a couple of years ago, through mental health, I lost another colleague who had a heart attack at a young age. You know the these are things that you know, literally you lose, you know, good people you don't look after. But I also said to my boys, the second thing is reputation. If you don't have a good reputation, life is going to be really difficult for you, and I've certainly kept that in mind throughout my legal career, that you know reputation for integrity is if you've got a good reputation. Practicing is less challenging if you've got a bad reputation. I just don't know how how you can continue you make the point that you say your reputation for integrity will win you more motions than case law. Why do you say that

Larry Pozner 1:26:07
one of the most frequent motions that we face in criminal and civil litigation is discovery? Your Honor, they have documents that they haven't given me, and what happens is we need to have the credibility of the court, that we would not be complaining about it unless it were true, that we are not always saying that, that we're not always complaining about our opposing counsel, so that We're taken seriously on the times we have to do it, and then part of that is we cannot get into but they did it too. In other words, you're I'm holding back documents because they held back documents. The best way to win is to play by the rules so that you can complain if somebody else isn't playing by the rules, but, but the next thing is, this is a career. It's not a case. The clients will come and go, you know. And I must say it's, it's dark, but I believe it, if, if, if you fall over today and die. Client will send nice flowers, and then tomorrow they'll ask, who's taking over the case, and do I have to pay to get them up to speed? Let's be honest. This is not a love affair between us and the clients. We serve them, but but we're not them. We preserve our reputation, because winning for this client by decreasing our rep may help this client, but it will hurt every client for the rest of our career. There is, there is nothing unethical that is in the favor of the client. Ever now. Funny story. Long time ago there was a an American lawyer, Thurman Arnold, and he later had a law firm famous Arnold and Porter in Washington, DC. And Thurman Arnold goes to work for FDR Franklin Delano Roosevelt as a trust Buster, he gave this advice to his lawyers. He said, If there comes a point in the case when somebody must go to prison, let it be the client, right, not you. That is great advice. It is right, yeah, and you see and but look what we're seeing in the United States right now. We are seeing lawyers whose licenses may be suspended. We are seeing lawyers who may be disbarred because of actions they took in behalf of their client. Yeah, Donald Trump. Now, you know, I don't want to get into it politically, but I can tell you, don't do things that risk your license.

Chris Patterson 1:29:06
There isn't there. There will never be a client that important that you should destroy your career. Absolutely by that. No, I completely agree.

Larry Pozner 1:29:13
Clients don't understand that, but, but that's the truth.

Chris Patterson 1:29:17
Two more points, and then we're there. You say be as quick to publicly praise honesty in your opponents as you are to scorn dishonesty. Yes,

Larry Pozner 1:29:27
yep. Why? Well, if sometimes there is a surprise in discovery, it arrives late, and sometimes it it's not their fault. Now I need a continuance. I am much more likely to get the continuance if I say, look, Your Honor, this has arrived at the last moment. I have no doubt it was not held back. It's just the police were slow getting it to the prosecutor. Her, and so the prosecutor only got it to me, but there's no question in my mind, your honor, that the prosecutor gave it to me as soon as they had it, but it's still late. That's a much more palatable argument than I'm asking the court to find that that the Crown Counsel held this back. See, I don't need that. Things happen in in trial, mistakes are made. And so I want to separate out the bad faith from things happen. And I don't want to brand everything that goes wrong as as bad faith, because it isn't. And then we make mistakes too, and sometimes we look up and we say, Your Honor, my opponent, which you call my friend. Yeah, my friend, my friend, my friend, has a point your honor. I wish I'd have seen this, and I should have tendered it earlier, and I didn't tender it earlier, but it's because I didn't recognize it. I hadn't seen it. My credibility on I didn't hold it back intentionally measured against my credibility over the entire course of my career is what matters. So a judge says, I agree. You know, we're going to find a solution, but it will not be a punitive solution, take responsibility when we screw up.

Chris Patterson 1:31:24
Yep, look at the bigger picture. There is. There's always a bigger picture. You know, this is Larry. This is a good point. I I've made lots of mistakes. I'll say that in this recording. Fact, when I look back on it, some of them are just makes me shudder. But one of the mistakes that that that I made once, an opposing council took real advantage of, okay, and they contributed to the mistake, okay? So they kind of set the mistake up and and, of course, I had to own it, you know, I made the mistake as well. But I tell you, you know, never going to forget that, that they, that they took advantage of it, and that's where the reputation aspect comes into it. So I've always thought, you know, I've always taken an approach that if, if you've got a colleague who makes them makes a mistake, you know, just recognize it and then do what you can to say, hey, we all do it. Because, you know, next week, I might be the one making the mistake, you know,

Larry Pozner 1:32:23
exactly and and especially in criminal defense, where we're meeting the same opponents over and over, which may not happen in civil it is important we have a relationship that endures for years. It needn't be a friendship, but it has to be a respectful relationship, because they're going to be screw ups and it and this profession is very difficult, very emotional. It's so much easier if we can get on the phone and figure out between the two of us, let's straighten this out. Yeah, sort of. I don't need the judge to referee it.

Chris Patterson 1:32:57
Yeah. No. Good, wise, very wise counsel and advice. Larry, last one, lawyers who turn in solid results day after day are more admired than lawyers who turn in dazzling results every now and then, every now and again. That's so true.

Larry Pozner 1:33:15
Well, that's right, yeah, you pick up the file and you do the best you can. That's why I don't like lawyers who take cases for publicity, because if you've taken the case for publicity, you will make decisions on tactics designed to get you publicity. What you want is to get a good result followed by another good result, followed by another good result. Quietly, year after year, you want to do good work, not in the famous cases, but in all the cases. We can't save it up and say, I'm really going to work hard on this case because it has high visibility. What we want to do is we want to say to our clients and our opponents, if it's in my chambers, I will work on it diligently. That's all you need to know. Is if they hired somebody else, I will not follow it in the newspaper. It's not my concern, it's not my headache. But if it's if I have said yes to the representation. I will do solid work every time. Yep, that

Chris Patterson 1:34:26
consistency, and I think also being prepared to learn and and gradual, incremental improvement, so that you set standards for yourself to say, you know, I'm not the same lawyer that I was five years, 1020, 30 years ago. You know, I'm working on being the best lawyer that I can be today, and I'll continue doing that. And look, we are a service profession. We're here to serve our clients, the community and the court. Word gets around. You know, people always. Does, you know,

Larry Pozner 1:35:00
greatest advertising we have is a client on the street who says, I hired him. That's not the billboards, you know, not flashy plaques on the wall. The greatest advertising are happy clients who say, or, you know, sometimes unhappy clients, they say, I wish I'd have never needed a lawyer, but as long as I had to have a lawyer, I got a lawyer who fought for me. Yeah,

Chris Patterson 1:35:26
and that confidence that clients have in you is just essential, and, and, and sometimes, most of the time, you know it, they'll come to you, and it's probably unearned. You know they're coming to you on a referral, and you've got to demonstrate to them that their confidence is well founded and that that's quite a duty. It's quite a an onus or obligation, to hold

Larry Pozner 1:35:53
yes and but they can tell who cares. Yeah. They can sense it, yeah,

Chris Patterson 1:35:57
but that, but to many respects, that's what makes practicing the law such a privilege and and why it is a calling very positive. Thank you so much for coming all the way down under from the sunny state of Hawaii and sometimes Colorado. I know you're here for a workshop this weekend that's been brought by Matt I chambers, which is where prominent defense chambers here in Auckland. There's a little plug for them there, okay, but we are delighted to have you here. I mean, the reality is that to be able to obtain and hear some of your wisdom, we have travel, and it's a long way to go. It takes a lot of time, costs a lot of money, but you're here. It's kind of like the mountain has come to Mohammed, but yeah,

Larry Pozner 1:36:44
but what an honor. When Quentin asked me, and I thought, are you really, Quentin? You're going to arrange for me to come to New Zealand? You'll never pull it off. Yet he did, and I was talking to the defense lawyer Association of New Zealand in Wellington last weekend, and now I'm, I'm here in Auckland, and it's been a privilege in a a memory of my lifetime.

Chris Patterson 1:37:08
Oh no, fantastic. And this is, this isn't your first trip, though, to New Zealand, does it? You were here about

Larry Pozner 1:37:12
30 years. I was here with my children. We had a wonderful time, right? It's, it's a good distance, yeah.

Chris Patterson 1:37:20
Larry, thank you so much. Thank you for coming down. Thank you for everything you've done and and also thank you for writing your book. It's, it's, it's a fantastic resource. Thank you. Thank you. Thank you for tuning in and listening to this episode of the law down under podcast. You're welcome to join in on the discussion via my podcast page, which you can access@patterson.co.nz that's P, A, T, T, E, R, S, O, N, dot, C, O, dot, N, Z. Thanks for supporting the podcast and tune in again for more on the law its application and the future of the law here down under.

Unknown Speaker 1:37:56
You.

Transcribed by https://otter.ai