Transcript of Episode 55, with Stephen Demik

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast where we speak with some of the best trial lawyers in the United States. We simply have great lawyers tell great stories from cases that had a profound impact on them. So let’s get started.

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

Stephen Demik:

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

Scott Glovsky:

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

Stephen Demik:

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

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

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

Scott Glovsky:

Sure, tell us the story of the case.

Stephen Demik:

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

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

Scott Glovsky:

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

Stephen Demik:

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

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

Scott Glovsky:

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

Stephen Demik:

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

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

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

Scott Glovsky:

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

Stephen Demik:

Oh, okay. All right.

Scott Glovsky:

What’s your name?

Stephen Demik:

My name is Miguel.

Scott Glovsky:

Miguel, close your eyes for a second.

Stephen Demik:

Yeah.

Scott Glovsky:

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

Stephen Demik:

Hello.

Scott Glovsky:

How’d you get into this mes