Tuesday, December 31, 2013

Life without Parole spared for 22 year old client of TLC grad Emily DeToto ('01)

TLC grad Emily DeToto ('01) fights for justice and the life of her client in a capital murder case.

Emily's client was the gunman in a home-invasion gone bad. He was holding a sawed off shotgun and he and 3 other boys were going to do a drug rip, and were startled to find the homeowner coming down the stairs. My client shot her in the chest in front of her children and she died.

The prosecutors for the State of Texas were seeking a guilty conviction on Capital Murder which would have meant an automatic sentence of Life Without the Possibility of Parole.

Emily's client was 22. She fought for him, using the TLC methods she has refined in several TLC Grad 2 programs, and she ultimately convinced the jury to find him Not Guilty of Capital Murder. They instead found him guilty of Felony Murder and sentenced him to 60 years in prison.

The full story will air on A&E on January 3 at 7 pm:

$28.3 million verdict and TLC-style justice obtained for woman injured by carbon monoxide poisoning in her apartment

TLC grads Bryan Ulmer ('99) and Tyson Logan (Sept '10) in the Spence Firm worked with grads across the country to bring TLC-style justice in the form of a $28.3 million verdict from a federal jury to woman injured by carbon monoxide poisoning in her apartment. ($2.8 in compensatory damages; $28.2 in punitive damages.)

Bryan and Tyson said they worked with members of the tribe across the country to brainstorm and discover the story. They worked with Gerry, for hours, on themes and danger points for the voir dire and the opening and closings. They started, and constantly relied on, psychodrama work and listening work, and worked with every single witness for months and years leading up to the trial to really learn and piece together the story that needed to be told.


Upon reflection, Tyson and Bryan said "it was a great experience and humbling to see how much people from the TLC tribe are willing to share and pitch in to help make something good happen."

Saturday, December 28, 2013

TLC grad shares his lessons learned on an effective Voir Dire

A recent grad of the 3-week program tells an inspiring story of how the TLC methods are helping him connect with his clients, judges, and juries, and how he is consequently getting more justice for his clients: 

"This course came at just the right time for me. I have been struggling so long with my career and my direction. I was able to get past so many internal roadblocks. Learning how to think about my client's story and developing the case from that point of view has  freed me in so many ways. I have already employed the tools I learned at TLC during several meetings with clients and learned so much more about them and their cases. I currently have three first degree murder cases that I have been appointed to. I'm using these tools now.

Last week, I argued for one of my clients before a  Judge about his competency to stand trial and about the State's motion to prevent us from putting on a defense of mental disease and defect (the client is mentally retarded and charged with felony murder). After the State finished their standard bs about us not having met our burden and their expert being all over it, I got up to argue. In the past, I would likely have tried to refute their argument point by point, relying heavily on my left brain and the facts. This time, I stood at the podium and paused. I reached deep inside and tried to figure out what I felt and what I was scared of. I felt anger that the State would persecute my client, that they would dismiss his lifelong disability for their obscene desire to blame the wrong person for a crime, and I was scared that a jury would not be able to hear the story of who he was, where he was from, and why they needed to care about him and see him as a person.

Then I started: I don’t know what it's like to be the kid in class who can't keep up. I don't know what it's like to be the kid that, by the time he's in second grade can only finish work with the teacher's help. To be teased and taunted by all the other kids for being stupid. But my client does.  My client sat in his first grade classroom…

I went through his story, which encompassed all of the facts that we had put on anyway. I have never experienced a reception like it. First of all, there were about 50 people in the courtroom, DA's, PD's etc, probation officers, and people in the gallery, and no one talked during the whole time I told the story. Everyone listened. The Judge, who usually looks down and takes notes, watched me the whole time, only glancing away for seconds to write notes, then looking back, shaking her head in affirmation as she recalled all the testimony that supported my story for my client.  I felt like I connected directly to her. I showed her the villains and who betrayed him all of his life. And I helped her see how she could help render justice by letting my client show the jury who he was so that they could find justice in this Courtroom.

It was a heady feeling. I was so in the moment, I didn’t think about it at the time, but afterward, in the hall, I was actually trembling with energy.  I could not have done this without the help of all the instructors and faculty at TLC.  So, I thank you, all of you, from the bottom of my heart."

TLC Death Penalty Seminar graduate talks about the role of mitigation in these important cases

Learning & Presenting the “Why”: Effective Mitigation in Criminal Cases
BY: Victoria Rusk, Mitigation Specialist  and graduate of TLC’s Death Penalty Seminar in 2011 and 2013
rusk.victoria@gmail.com   (Article was published in the Fort Bend County, Texas Criminal Defense Newsletter, Winter 2013-2014 edition.)  

Mitigation in the context of criminal proceeding is not touchy-feely, sentimental, whining, wailing, tugging on the heart strings boloney. Mitigation is a very real and practical presentation regarding all the facts and circumstance of the defendant’s background and history in relation to their current case. It is not an excuse. It is an explanation. From criminal to immigration law, mitigation is something only the defense can bring to the table. It is mandatory in capital cases because of the lethal punishment aspects. However, a majority of cases confront a punishment/ sentencing phase and attorneys are obligated to prepare for it. {Milburn v. State} {Shanklin v. State}   If knowledge is power, then this information is the light switch.

Multipurpose Tool
Mitigation can be utilized in every facet of court proceedings: bond hearing, grand jury packets, PSI, plea negotiations, trial and more. Mitigation is most beneficial to prevent trial (PSI, pleas negotiations). However, sometimes trial is inevitable, so it is best to retain a mitigation specialist from the start. Mitigation investigation provides the attorney with more information about the case and the client. This form of empathy can create a better attorney-client relationship, which can only benefit the outcome.  Mitigation specialists can provide immeasurable support in interviewing and obtaining support material from those who have known the client best and longer than the prosecutor, the judge or the probation department.  One of the main purposes of mitigation is to individualize each case and each defendant to determine punishment.  For every aggravating factor there is a mitigating factor to explain it or defend it.  Presenting mitigation can save years in the sentencing phase or in plea negotiation. It can also exclude lawyers from a potential IAC claim. {Moore v. State} 
Power of Why
Mitigation is the why.  Experience demonstrates to us that not only do the prosecutors and jurors, both grand and petit, want to know what happened, but they want to know why.  The why looks to the past as well as to the future, so that whatever the cause for this criminal conduct, it needs to be named and eliminated to avoid a recurrence.  After interviews with family, friends, neighbors, teachers, employers, doctors, counselors, etc. the pieces of the puzzle come together. Combine that with supporting records from various sources and you have a solid defense on how people become who they are. Information flows in from many directions and a mitigation specialist will organize it. Once you have this information, it is much easier to get an expert on board to testify on such mental disorders and/ or intellectual disabilities. Experts appreciate and utilize mitigation reports because they learn behaviors and characteristics of the client which very likely explains the circumstances of the crime. 

Client Relations
The specialist’s field work symbolizes a quality defense.  Surprisingly, many clients don’t know their own story or have never been asked to tell it. When a client realizes how their actions were influenced or supported by dependent conditions, it influences future decision making; including the decision on whether to plead or not. Mitigation builds a rapport with your client without extensive leg work. Since a mitigation specialist is an extension of the attorney, he/she is visiting the client, their family and potential witnesses, reviewing records and developing the story. Mitigation investigations not only unravel the client’s story but also the story of the parents giving a name to certain actions, behaviors, circumstance, etc. Those components assist an expert in drawing conclusions.  There are times when an expert is not hired because the mitigation report is enough to prevent trial.  Mitigation has the potential to build strong and positive client relations which results in more effective negotiations.
Mitigation is not miraculous. However, when used properly it is impressive to see how information shifts the mindset of another person.  It allows the attorney to concentrate on the case and to present the case in its best light.
  • Mitigation in non-capital cases is necessary and proper defense. Case law supports that. Where there is a will, there is a way. 
  • Mitigating factors are effective negotiating tools in all aspects of a court proceeding.  Depending on the case, the client and the circumstances, mitigating factors are strategically used for the best defense.
  • Mitigation Specialist versus Mitigation Expert. Experts testify and a mitigation specialist is a defense team member under attorney-client privilege. Mitigation specialists collect the information needed to hire an expert, assist the expert with records and reports and support attorney-client relations.
  • A mitigation specialist starts at $75.00 per hour. In a non-capital case, twenty hours is a good starting point. In mitigation, you don’t know what you will discover or when you will discover it.

TLCs methods to "Discover The Story" lead to justice for families with autistic children

A brief synopsis of how TLC’s methods to Discover the Story behind Health Insurance Denials for Autism led to justice for numerous families of autistic children.  (The full story about this case by 
TLC alum Scott Glovsky (’07) can be found in the TLC Warrior magazine, Fall 2013.  See www.triallawyerscollege.com, "Support TLC" tab.) 

Six years ago, "Guillermo" walked into my office.  He was agitated and trembling as he told me that Kaiser Foundation Health Plan, a “not for profit” health plan, had refused to provide his two-year-old autistic son with Applied Behavioral Analysis (“ABA”) – the most effective treatment for autism.  Because early intervention is crucial for autistic children, Guillermo’s desperation was palpable.  Autism Spectrum Disorders (“ASDs”) are a group of developmental disorders which onset in early childhood and often cause significant social, communication, and behavioral challenges.  There is no physiological test, like a blood test, to determine if someone has an ASD.  Instead, doctors analyze a child’s behavior and development to make a diagnosis. While there is no cure for ASDs, ABA is widely accepted as the most effective treatment.  

Kaiser, like every other health insurance company in California, refused to provide ABA to its members with ASDs.  Kaiser systematically denied ABA on the ground that it was not a medical service, was not provided by licensed medical providers, and was merely educational.  I took Guillermo’s case, and others like it, and filed a class action against Kaiser to stop them from systematically denying ABA for children with ASDs.

When I started to work on the cases, I struggled to understand ASDs.  Though defined above, it is difficult to understand what ASDs really are since their definition is amorphous.  I realized I needed to discover the story of ASDs so that people within the insurance companies, in the medical profession, and on juries, can wrap their arms around what autism truly is.  I worked with our TLC Local Working Group and we began by reversing roles with a three-year-old, non-verbal autistic boy.  I started to learn the story when I was spinning around in circles as a three-year-old boy without making any eye contact.  I discovered how scary, confusing, and overwhelming each day must be for children with autism.  Without understanding the tremendous limitations caused by ASDs, one cannot fully appreciate the importance of ABA.

To further discover the story, I spent time with my autistic clients.  I was completely overwhelmed with the chaos, stress, and lack of control in his house.  Andrew spun in circles in the living room as his family repeatedly tried to stop him from injuring himself – but Andrew still persisted.  As Andrew rarely slept for more than a few hours at a time, his entire family seemed overwhelmed, sleep-deprived, beaten down, defeated, and helpless.  I learned that getting through each day with an autistic child requires tremendous strength, courage, and perseverance.  As a result, these families rarely have the strength and fortitude to mount a battle against a powerful insurance company to fight for ABA. 

All of this work reminded me again that it is crucial to work up cases with TLC methods as soon as possible.  The focus groups and reenactments led to new avenues of formal discovery, which led to the discovery of new information, which led to new focus groups and reenactments, expanding the sophistication and breadth of our case along the way.  When I use TLC methods early in the case, and continue to employ the methods throughout the case, I approach trial with a much more refined and powerful story.   The result?:  after almost six years of work, Kaiser has finally agreed to change their policies and stop systematically denying ABA and speech therapy to children with ASDs.  As part of the settlement, it has established a large fund to reimburse families that paid for ABA and speech therapy over the past eight years.  In addition, the fund will provide millions of dollars for cutting-edge autism research at UCLA and UCSF.  Once again, the power of TLC methods to better “discover the story” of these cases, the powerful help of tribe members, and all of our caring, made the world a little bit better. 

TLC student rediscovers his passion for practicing law

Attendee of TLC's "Experience The Magic" Seminar in June 2013:

"I just tried my second jury trial since attending the 1-week program at the Trial Lawyers College last summer.  The cases were small so this is not a brag post!  But I put to use what I learned and I had both plaintiffs "re-enact" the crash and I saw that the jury was totally engaged.  The jury took notes and asked questions, which was the first time I experienced the jury asking me questions.

I came to Wyoming last June with little spirit, and too many losses.  In my head, I know that the facts are the facts, and we really don't get to try our good cases because all of those settle.  Still, in my heart, I always second-guessed myself.  I felt a difference in myself after I attended this program and that has translated into more confidence -- and success in the courtroom!  I received the best compliment I could imagine today from a couple of jurors who told me that they appreciated my passion.  It was very empowering to hear that my passion for what I do is coming across to jurors as a real emotion.  It finally feels natural and real and I am thrilled to try cases again -- a feeling I haven't had for a long time.  Please share my gratitude with the staff from this summer, and my thanks for all that the College has done for me and my clients."       

Monday, December 9, 2013

A Victory for Sisters

by Greg Reeves

I represent June and Carolyn. Sisters. Salt of the earth people. Quiet. Reserved. They had married, worked, raised children, buried family, and they found themselves at 76 and 79 years of age, living near to each other and living alone.  

Carolyn’s daughter was driving when a driver ran a red light. The impact spun their truck around 2 or 3 times. Instead of dinner, they were taken to a hospital, checked out, treated, and released.

The other driver denied liability, typical in Alabama, a contributory negligence state. The only independent eyewitness was very nervous, but, critical for us, as she said my clients had the green arrow.

I reviewed the medical records: pain, bruising, tests, doctor appointments.  Eventually, my clients improved. Carolyn had suffered a stroke years ago and had walked with a cane, ever since. But, June had only started to use a cane after the wreck.  

I saw no benefit to deposing a doctor or by introducing the medical records. The subrogation was $1,700 and $185, so the medical bills would have been pointless.

Before June and Carolyn came to see me they were offered somewhere around $1,200 each. This offer increased to $15,000.00 each before trial. We declined the offer.

I asked them to not use their canes in front of the jury. I escorted them to the witness stand. The only damage claim was for pain and suffering. Number of plaintiffs’ exhibits offered: zero. Not even a photograph or a diagram.  

The task of valuing pain is difficult. I admitted this to the jury. I asked them to consider $75,000, each, as an appropriate amount. I liked my clients. I believed in them. I felt that we, as lawyers, tend to complicate our cases. I wanted this case to be simple, basic and honest: my clients, their pain, and a request that the jurors agree to value pain.

We started the trial that Wednesday morning and had a verdict that afternoon:  $20,000 for Carolyn and $40,000 for June. This was double the total amount that had been offered by the insurance company.