Turning Client Pain Into Courtroom Strength, with Jesse Wilson

Voice Over (00:01):

More likely than not, that 0.01% is all it takes to tip the scales of justice. Join us as inner circle legend Charla Aldous, Eleanor Aldous, and Caleb Miller walk you through the critical moments, big decisions, and bold strategies that win high stakes cases and show you how to turn that 0.01% into a game-changing verdict. You're listening to the podcast Where Winning Is More Likely Than Not, produced and powered by LawPods.

Charla Aldous (00:34):

Hello, welcome to another episode of our podcast More Likely Than Not. Today we are thrilled to have Jesse Wilson, trial consultant and author of I think a couple of books, right, Jesse?

Jesse Wilson (00:46):

Yeah, two of them.

Charla Aldous (00:47):

Two of them. One is that you can get it through Trial Guides, The Most Important Juror: Embrace the Winning Story in Jury Selection, Opening Statement, and Rebuttal. And another book, Witness Preparation: How to Tell the Winning Story. And Jesse actually travels across the United States helping lawyers reach record, and I mean record verdicts and settlements, and has reframed how we think about talking to our clients, having our clients talk to a jury and how to reframe the case, and I think you call it from victim to victor. I'll never forget the first time I heard you talk about it, Jesse, and it totally reframed the way that I approach my clients from the first time that I meet them. You work with lawyers, as I said, all across the country, but before we get into your work with lawyers, tell us about your background.

Jesse Wilson (01:34):

Well, first of all, thank you for having me and it's good to see you again. I think the last time I saw you in person was the Inner Circle Program, so it's great to see you again.

Charla Aldous (01:43):

Let me tell you this real quick. One of my favorite things with you speaking at the Inner Circle is you started dancing and trying to get everybody to dance. I loved looking around the room at those that would dance and those that wouldn't. It was absolutely wonderful.

Jesse Wilson (01:56):

Those that would dance and those that wouldn't. Yes. Yeah,

Charla Aldous (01:59):

Exactly.

Jesse Wilson (02:00):

Right. Well, there was practicality to that beyond just a weird warmup, but some did dance. So my background, yeah, it's still... I've been doing this work at working as a full-time jury trial consultant for the better part of about 15 years now, and it's still a mystery to me, a beautiful mystery, how I ended up working with attorneys. If you would've told me that well, more than 15 years ago, I would not have believed you. I would've told you seriously smoking something. So my background is in theater. There's a few of us out there who were cut out of the same cloth. There's David Ball and Joshua Carton and everything I knew about the world. And one thing that I was actually really good at was theater. So one thing that made sense to me and grew up born and raised Hollywood, California. I went to New York to study theater full-time and got my butt handed to me at the Julliard School.

(02:51):

And then my life took a dramatic turn. I mean, what's that whole line that we make planned and plans and he laughs? And I became a teacher. That really became my real calling. As good of an actor as I was working as a teacher, that's when everything made sense.

Charla Aldous (03:07):

And what did you teach?

Jesse Wilson (03:08):

So shocker, theater, the arts. Yeah, working with kids of all ages. But the real turning point of my life came when I was invited to work with inmates and adicts. And I say inmates and addicts because they go hand in hand in prisons across Colorado. And I helped co-develop a theater behind bars program with a good friend of mine named Dave Fine. And it was there that the foundation for the victim to victor aproach was bored. I wasn't calling it that then, but helping men and women tell their stories. This was part of a restorative justice program, a healing program. And intellectually, I understood that the arts had the ability and the power to be able to transform people's lives. I understood that intellectually. I would not have argued with that, but I never had any real experience what that looked like in the hands of using theater and theater tools and working with masks in the hands of people who could care less about theater.

(04:01):

They were broken, they were in pain and something needed to change in their life yesterday. And that's when I became, even though I was teaching this, I became the student to this work.

Charla Aldous (04:10):

That's enthralling to me, your prison work. So you

Jesse Wilson (04:12):

Would

Charla Aldous (04:13):

Get with the prisoners and actually do theater and have them do some acting.

Jesse Wilson (04:17):

Yeah. Yeah.

Charla Aldous (04:19):

Wow. That had to be a tough crowd.

Jesse Wilson (04:22):

It was until it wasn't. It was until it wasn't. Yes, it was a tough crowd. First of all, it's scary as hell being in a prison, but that's probably why I did it. I'd heard about prison programs. I'd heard about Shakespeare Behind Bars and other programs like that that were all part of these restorative justice efforts across the country. So yeah, going into prison and the door slamming and the sounds and being in prison makes you grateful for every damn thing in your life. You leave and you want to literally kiss the ground. But then when you saw the men and women who had a sincere desire to turn their lives around to reframe their lives, then it wasn't scary. And then there was a great sense of play and discovery and curiosity. And so it's funny, this is coming from the theater guy. I resist hearing the word acting because this is Jesse.

(05:11):

I will typically associate it with how a lot of people associate it, which is being fake or phony or being somebody that you're not. But there's another part of acting that is about being your truest self. It just gets hidden under a lot of stuff. And working with masks allowed the men and women that I was working with to literally remove their mask metaphorically, symbolically, and step into a different role. And then you saw this extraordinary kind of play unfold that removed judgment, which in my opinion is the single greatest roadblock there is to being a great lawyer, a great human being, a great witness, and it was enthralling. Removing judgment.

Charla Aldous (05:52):

Okay. Explain that to me. I'm fascinated.

Jesse Wilson (05:54):

So mask work, and I don't know if you remember the masks that I had brought into the presentation.

Charla Aldous (05:59):

Absolutely.

Jesse Wilson (06:00):

Yeah, I work with masks. And when I was at Julliard, it was the one I worked with this brilliant teacher named Pierre Law, who is the pioneer of working with masks in performance schools all across the country. Although when I was a student at Julliard, then I think this is the only school that actually really did work with masks. And mask work, if you grab one of these character masks, they are warped and scary and misshapen and there's nothing friendly or inviting about it. You wear it and they're villainous and scary. And people tend to play it like that because we have a strong opinion about what is on the surface of this mask. But then the exercise, a lot of the exercise that I do is about try to find something that's likable about this character. Try to find something that is redeeming about this character.

(06:45):

And then when you see people make the choice to find something that is likable, redeeming something that would make me care about this person, you wear them warped in a shapen mask and you find the grandfather reminiscing about his childhood or the old woman who's smelling flowers in her garden or holding her grandchildren. There's this sense of play that is designed to remove that judgment. And so you see the mask behind the mask. And what that work does, and this is just fun play, is that, okay, now let's take off this character mask and let's look at the man or the woman in the mirror. What are we seeing? What's the judgment that we have around this and all that goes with this? And can we get ourselves to a place where we become the watcher? Can we become the compassionate witness to our own lives?

(07:29):

And when we can get ourselves to that place, boom, then you got some real magic to work with.

Charla Aldous (07:34):

I could listen to this for hours. And I tell you, having experienced it just at one short seminar, I can't wait to do another one. I bet there are some of our listeners right now are saying, okay, theater, prison ministry, masks, how in the world does that help a trial lawyer?

Jesse Wilson (07:50):

How in the world does that help a trial lawyer? That's a great question. We all wear masks every day and the word performance gets a lot of pushback. I'm not a theater guy, Jesse. I didn't go to Julliard. And theater for me, I associate that with dog and pony show. Performance? No, I mean, what you see is what you get. I'm the real thing up there, and that's a performance. So you can call it blobbity cuckoopoo when you're on your feet, but when you're on your feet in front of a bunch of people, that is a performance. How are you showing up at your most authentic self? And there's nothing normal or natural about the courtroom. Give me a freaking break. There's less than, I don't even know if there's less than 1%. I mean, there's nothing normal or natural about "being real" in an environment that completely conspires against being real.

(08:34):

So you've got to find that role and cultivate that role until that role is in your spine. That is a performance. And so when we talk about removing the mask, it's working with the mask. It's having dialogue with the fear of judgment. And can I get interested in the struggle? And one of the greatest things that create authenticity is usually the thing that most people resist and have the most judgment for, which is struggling, the struggle to be on your feet. I mean, I remember, this goes back to my early theater days. I don't remember what play that I was in. It was a one-person show and you can't run or escape from that. It's just you on stage. And I was freaking out. I was about to go on stage and the director puts his hand on my shoulder and he says to me the most sacred words that I will never forget, he says, Jesse, your struggle on stage is our gift, but it never feels like that to the man or the woman in the arena.

(09:26):

But your struggle on stage is our gift. So if we could invite that struggle, if we can allow that struggle and own it, and this obviously works just as much for witnesses as it does for lawyers, then authenticity is born. The audience wants to see that struggle. So I will say, you probably heard me say this line before, but the theater, because I incorporate so much of the theater work into the workshops and the seminars with lawyers, the theater is a safe place to be dangerous, but the courtroom is a dangerous place to be safe. That means you've got to radically trust. That means that careful does not equal credible. So that's a long-winded way of saying when you remove judgment, you set the stage for something greater to emerge. And yeah, I keep coming back to judgment as the single greatest roadblock there is to communicating, to telling the winning story.

Charla Aldous (10:18):

Am I right about this as you're talking, Jesse? I'm thinking about something I've always thought in my practice is that you have to be willing to show your vulnerability a little bit.

Jesse Wilson (10:27):

Completely.

Charla Aldous (10:28):

I have taught that to young lawyers that I've worked with. I'm like, "You've got to be humane. You've got to be self-deprecating. Show your vulnerability. That is what juries want to see from lawyers. And dad, dumb it, it's hard sometimes.

Jesse Wilson (10:42):

It is hard. It is hard.

Charla Aldous (10:43):

You want to come in, you're in control. I'm the best. I can do it. I can fight. I can fight." But to show you're vulnerable is really putting your soul out there.

Jesse Wilson (10:52):

Yeah, that's right. I call it armored nakedness. Yeah. And -

Charla Aldous (10:55):

Oh, I love that. Armored nakedness.

Jesse Wilson (10:58):

Armored nakedness. Yeah.

Charla Aldous (11:00):

That is really good. I did a workshop one time with... Mark Davis did it with a group of inner circle folks with Alan Arkin out in Santa Fe.

Jesse Wilson (11:09):

Oh, wow. Oh my God. I heard about that. Maybe you might've been telling me about that.

Charla Aldous (11:14):

And from what you're talking about right now, it reminds me of what Alan Arkin was teaching us, how you have got to get in touch with your inner self and your own vulnerabilities, your own pain, and let the jury feel that from you in order for them to feel what you want them to feel about your client. It's sometimes not that easy to do. And you do that with your workshops, don't you? You help lawyers.

Jesse Wilson (11:37):

It is not easy, and it's so easy for me to sit here and say that. But what I find to be the bridge to helping remove judgment and the bridge to finding that ability to be your most vulnerable is something that you need to take in with you as one of the greatest allies in the courtroom. And that's your ability to show and connect to awe, the feeling of awe. When you're curious about something that is much more powerful than being angry or frustrated or judgmental. I'm in awe of this person. I'm in awe of how I feel. I'm in awe of the fact that I want to judge this client. How do we all feel about that? Awe creates the invitation. Awe allows for that struggle to exist in such a beautiful way that creates true connection between you and your listener. So the anecdote -

Charla Aldous (12:31):

Even just in awe of the process.

Jesse Wilson (12:33):

In awe of the process.

Charla Aldous (12:34):

How beautiful the process.

Jesse Wilson (12:36):

Yeah, absolutely. And so if we take that emotion of awe... Okay, so let's come back to prison.

Charla Aldous (12:42):

I love the prison work. Beautiful. How in the world did you go from working in prisons and to working with lawyers? Maybe there's a similarity there. I'm not sure.

Jesse Wilson (12:54):

Not that different. I guess we're all sort of in our own prison state, right? Some literal and some not. But yeah, so again, this is working in prison and the guy that I was working with, Dave Fine, calls me up one day. It was about maybe, oh, if I'm guessing, maybe about two years into the work that I was doing in prison. And he says, "Jesse, you might be interested in this. There's a woman named Kathy Osborne who runs a legal conference called 360 Advocacy and they need a communications guys, a storyteller." And this was up in Aspen, Colorado. And I said, "Yeah, sure. I mean, I'd be happy to do it. " At that point when I was a teacher, you're supplementing your income with everything under the sun. And so I'm like, "Please tell me I don't have to know anything about the law, please." I'm like, my cousin, Vinny character, voir dire.

(13:37):

I'm like, "What the hell is that? " So I go there and this was in the middle of this blinding snowstorm. And out of the 80 or 100 people who were supposed to show up at this thing, think like only 20 people were there. But out of that group, these were some of my closest friends, clients today. One of those people happened to be a guy named Mel Orchard, who I know you know, who was running faculty at Trial Lawyers College at the time. And boy, do we hit it off. And he was like, "Dude, you are onto something with this victim to victor stuff and I want to invite you to Trial Lawyers College." And pretty much that first workshop, people were coming up to me saying, "I'm literally telling my client's story wrong. I mean, I need your help." I got invited to Trial Lawyers College.

(14:19):

That was before the big ugly divorce. And within less than a year, I mean, I was so grateful that I'm saying to my wife, "Geez, not only can I do this work, I really want to do this work. I'm excited about this work." I became a human sponge and just sat in every damn courtroom I could possibly go to and absorb everything I could. And yeah, within about less than a year, I'm saying to my wife, "This is time." And as much as I love working with kids, I was looking for that next step and here it was. It was like knock, knock, nothing ever would've even though existed. People like Josh Carton took me under the wing and mentored me, and then I made the big break and I became a full-time jury trial consultant.

Charla Aldous (14:56):

Yeah, it's one of those things, Jesse, I think was just meant to be.

Jesse Wilson (14:59):

I think so.

Charla Aldous (15:00):

I mean that sincerely. I really do.

Jesse Wilson (15:02):

I think so.

Charla Aldous (15:03):

Tell our listeners what it means victim to victor.

Jesse Wilson (15:06):

Yeah. So the foundation for victim to victor, like I was saying, was born with the work in prison and it was helping men and women redefine themselves, letting go of that judgment. So let's take it into the courtroom. The best example, Charla, that I could give for what does the victim to victor approach look like in the courtroom, because it's way more than just, "Oh yeah, okay. I'm sure, Jesse, I'm supposed to tell my client, don't be a whiner up there." Well, it goes a lot deeper than that. Let's just imagine we're in the courtroom and whether you say these words or not, you want to communicate these words only 100,000% of the time when it comes to the right telling of your client's story. Ladies and gentlemen of the jury, my client is not her pain. She's not her pain. So who is she?

(15:52):

She is the strength of trying to overcome her pain. And I can't wait for you to meet her. So these are the three pillars of the Victor story. Strength, trying and overcome. When I work with witnesses, we're here to tell the story of strength. We're here to tell the story of hope, and we're here to tell the story of another very, very counterintuitive idea that makes the victor story the victor story. And that is joy. I call joy the second wing of the plane to the victor story. So now take that statement. My client is not her pain. She is the strength of trying to overcome her pain, and I cannot wait for you to meet her and just compare that to what is the common description of the witness that you'll hear coming from many lawyers' mouths painfully. Ladies and gentlemen of the jury, my client is her pain and you're going to hear about all the things that she can't do.

(16:38):

She can't, can't, can't, can't, can't. It's another word that I absolutely say don't ever say. And now give us a lot of money. Good luck with that story. Not to say you can't get good results with that. Some have, but you maximize the living you know what out of your damages, full justice. When you reframe your story around strength, hope and trying and joy despite the pain and joy gets a lot of pushback just as much as saying the word theater or performance. We could talk about that in a minute, but that is in essence what the victim to victor approach looks like. And it's way more than just casting your witness in the right role. It's how you frame your entire case.

Charla Aldous (17:14):

Literally, when you said my client is not her pain, it made me want to sit up on the edge of my chair. And I'm sure that jurors have that same, oh, what - Isn't

Jesse Wilson (17:22):

That interesting?

Charla Aldous (17:23):

Tell us about her.

Jesse Wilson (17:24):

Yeah. Imagine those words coming from a lawyer's mouth who's there. Wait a minute. What that does is kind of wrangles my thinking or the cross-armed jurors thinking around the bias that I have towards you. You say your client is not... I'm expecting you to say how messed up her life is and how da, da, da, da. It's just she can't, can't, can't, can't. I'm expecting sympathy. I'm expecting manipulation. And you're saying that your client is not her pain?

Charla Aldous (17:48):

Okay. I've got so many questions and we have such a limited amount of time.

Jesse Wilson (17:53):

Fire away.

Charla Aldous (17:54):

The one that stopped me a little bit when you said the joy. If for instance, you have a paraplegic or a quadriplegic client and you're talking about joy, explain that to us.

Jesse Wilson (18:03):

Can I ask you a question?

Charla Aldous (18:05):

Absolutely.

Jesse Wilson (18:06):

Is there ever a time in your life when you've experienced what you would consider to be a life-altering injury or just a hell of a lot of pain?

Charla Aldous (18:13):

Absolutely.

Jesse Wilson (18:14):

Yeah. And when you felt that pain, either physical or emotional or both, how good did it feel to be able to laugh a little bit?

Charla Aldous (18:20):

It breaks the pain to an extent.

Jesse Wilson (18:22):

Yeah. How good did it feel to be able to laugh a little bit? How good did it feel to be able to be a little bit distracted? How good did it feel to be able to just do some of those little things? And those little things become your entire case. Yo magnify those little things because when you're in a lot of pain, ain't nothing little about little. Those little things aren't little. They're big. So when we the jury see somebody who's able to find a little bit of joy in their life despite the pain, what you end up doing paradoxically is magnifying the pain at an even greater level and allow the jurors to want to be able to fight for that person to be able to have just a little bit more of that sliver of light.

Charla Aldous (19:00):

I love that. How would you do that, Jesse? For instance, if you're representing the parents of a brain damaged baby, how do you talk about joy?

Jesse Wilson (19:07):

Yeah. Where's the gratitude? I worked on many of these cases and my child is brain damaged and yet, but despite, and despite is one of my favorite words in the courtroom, are there moments when they're able to make that brain damaged baby smile a little bit? Are there moments when the mother and the father, when the child is sleeping can go in the other room and watch dumb and dumber? Let's just get away from it all. Are there moments where they think, "You know what? Brain damage does not define my child because I'm seeing things that the people who are saying she could never do this wrong. I'm not seeing it yet, but I'm hopeful." There's tons of joy. You just got to know what you're looking for. Don't ever allow pain to be the excuse to not find joy because it's there. It's there.

(19:52):

I get so excited. I may be the one person in the country who gets really excited when I get the call and says, "Jesse, boy, this person is a victim. Oh my God, they're entrenched in the victim trap." I mean, they're just buried and there's no joy in their life. And I'll have witnesses who actually get downright offended, downright offended. And understandably, I'm not there to judge. When I say to them, I say, "Ms. Jones, next to telling the truth and on the stand, does it surprise you when I tell you that the single most important thing that you can bring into your testimony, whether it's deposition or trial, and they're one and the same in my mind, is joy, pause, pause, pause. What? Joy. I'm the victim here. There's no joy in my life. Oh, let the games begin. Yes, there is. And we're going to find it.

Charla Aldous (20:36):

And that's how you work with clients and witnesses.

Jesse Wilson (20:39):

You bet.

Charla Aldous (20:39):

Oh man.

Jesse Wilson (20:40):

Absolutely. Within the first five minutes, they need to know their role. They need to know what the battle strategy is. And even if it feels forced or manufactured right now, there is joy. One of the first exercises I do, it's an icebreaker, but there's real practicality. Everybody in the room, lawyers, or if I'm working one-on-one with a witness, what's something in your life present day that puts a smile on your face? Something that makes you laugh. It's hard to find somebody not able to find something. And let's say, okay, there's nothing in my life that makes me... Okay, all right. Which is rare. Is there a movie that you like? What's one of your favorite movies about a character that doesn't give up? Find it. I'm fine. And then I'll, ah, there's a little bit of joy. That's all I need. That's the sliver of light.

(21:19):

That's the candle in the darkness. Now I got something to work with.

Charla Aldous (21:23):

All right, I'm absorbing all this. It's amazing. At what point do lawyers normally hire you to work on a case? Is it when they're getting ready to put their client up for deposition, before trial, at the start of a case? How does that work?

Jesse Wilson (21:37):

Yes, yes, and yes to everything that you just said. Yes.

Charla Aldous (21:40):

Well, let me start it this way. What is ideal?

Jesse Wilson (21:42):

The ideal is if you can, I try to work up a case as far in advance as possible, and that will usually entail about a two to three day prep. And there are two main areas that I will focus on, and they're pretty broad when it comes to the second one. The first one is witness preparation. That's where you always want to start. It's getting the witness cast in their right role, but I'm wearing a lot of hats during that work. I'm working on the verbals, I'm working on the non-verbals, I'm working on the delivery. I'm working on making sure that they know what their role is and what their role is not. There's a whole checklist that I follow, and if you're working with the person who thinks that they're the smartest person in the room, they need to know it's not their case to win.

(22:24):

So that's all part of the act one, that's the witness preparation. And then typically it will roll into trial strategy. Now that we know what the victor story of the client is, now we get to frame this case. Now we get to put it together. Opening statement all the way up to rebuttal. If you read my second book, I like to begin. The final chapter is begin with the end in mind, which is once you understand your rebuttal, then it helps you frame the moral framework, as Mr. Friedman would say, of your entire case. And then from there we go, okay, now we understand what the right story is, what the right story is not, what is this case about? Then yeah, we go to opening statement and then jury selection, that becomes the right conversation that we have with our jurors. The one thing I don't do, and I used to do it before, is pick a jury.

(23:09):

I will frame the right conversation and the themes and the topics and all that good stuff, but I won't pick a jury because that's just way too time-consuming and it's a whole science that there's people who do it way better than I do. But short of that, yeah.

Charla Aldous (23:22):

But you'll help the lawyers formulate questions for voir dire. We call it voir dire in Texas.

Jesse Wilson (23:26):

Vore dire. Vore dire.

Charla Aldous (23:28):

Voir dire.You say voir dire in Texas and you're going to be in trouble.

Jesse Wilson (23:31):

I just call it jury selection.

Charla Aldous (23:32):

Jury selection. There you go. I love it. I love it. So when you're working with lawyers and talking about jury selection, what types of questions do you recommend? Give us some examples of the Jesse School of Jury Selection.

Jesse Wilson (23:46):

I don't take any cookie cutter approach to any case, but there are questions that I do like. One of the questions, and it comes back to, I was on a podcast recently and they were asking me, "Okay, well, what does victim to victor look like in jury selection?" And typically I will work on, I would say maybe 80 to 90% of most cases that I work on are invisible injury cases, specifically brain injury, but also the reason why the slip and falls and the reason why the defense is saying the reason why the plaintiff looks fine is because they are fine. So the real opening statement from me is jury selection and that's why you're priming the pump. I'm not telling you or anybody listening what they don't already know. But one of the questions I like, and I used to be sort of like, "Well, maybe you're tipping your hat off too much to defense if you ask this question." To me, I think it's a great question.

(24:34):

I wouldn't hesitate to ask it. There might be a really good reason and I'd be open to that, but more often than not, asking this question gets you in the door to get the jurors on board with what they need to be seeing when it comes to the right telling of your client's story. So it's a two-part question. It's actually similar to what I asked you earlier. Part one question is who here knows of anybody who has experience, and maybe it's you, what you would consider to be a life-altering injury? What does that look like? And get all sorts of shares around that. That primes the pump then to get into the second part of that question. This one I love, and it goes back to the mask work. Who here knows of anybody who, despite their pain, are doing the best they can to try to hide their pain?

(25:14):

What does that look like? You get some great stuff there. So what I'm hearing you say, Mr. Jones, is your grandfather, he's like Father Christmas to your grandkids and to everybody in your family. But what are you seeing? You're seeing something completely different. Behind closed doors, what are you seeing? Oh man, I'll tell you one thing. It ain't Father Christmas. Thank you, sir. More shares, more shares, more shares, more shares. So earlier I introduced you to my client. They were smiling and they were talking, and then I asked them to leave the room. She looks fine, doesn't she? Everybody agree that she looks fine? Let's talk about that. That's why we're here. So I'll take that conversation and then direct it right back to the person that I just excused.

Charla Aldous (25:53):

Man, that would be so good in sexual assault cases as well.

Jesse Wilson (25:56):

Oh, hell yeah.

Charla Aldous (25:57):

Yeah. I mean, really, I'm just sitting here thinking how powerful that could be.

Jesse Wilson (26:01):

Yeah.

Charla Aldous (26:01):

Because sexual assault survivors often want to bury their pain. They do not want to talk about it. So let me ask this, you looked at my client and she looked well, she looked fine. Do you recommend that lawyers have their clients present during voir dire or jury selection?

Jesse Wilson (26:15):

I don't.

Charla Aldous (26:15):

Okay. So you actually have them physically there at first.

Jesse Wilson (26:19):

I introduce the client and then I have them leave because I want a devil's -

Voice Over (26:23):

Okay.

Jesse Wilson (26:23):

Absolutely. Yeah, introduce them, let them see, and then let your jurors know why you're telling them to leave and why you're making the decision. More often than not, follow this, why you're making the decision to not have your client mostly there in trial. And the only other time you're going to see that person is when they're on the stand. Some cases varies, but for a brain injury case especially, I wouldn't have the client there. But let your jurors know that. And if they push back on that, yeah.

Charla Aldous (26:48):

I always tell them, and my client's not here, I ask them not to be here or explain it, but I love having the client there introduce them so the jury can see they do look normal and then you can really ask the questions. That is abbrilliant.

Jesse Wilson (26:59):

Absolutely. Well, and here's the fun part, and this is why I'm not just being cute, this is why I say jury selection really opening statement is because in, and shameless plug, I write about this a lot in a number of different cases where I use this approach. When it makes sense in book two, when you get into opening statement, and I have to say this with a preface, is that David Ball is a very good friend of mine, but he gave me a lot of pushback. When I first was about to go live with this statement and I thought I was backing it up in my book and he was so supportive of book one and book two when I said you don't always need to start your opening statement with the defendant's story. Sometimes it makes sense to start with the plaintiff's story. And I mean, he writ me a new one.

(27:46):

You can understand why. And it wasn't just because I was, I mean, I though I did my job. I mean, well look, here's this case and here's this case and here's this case where it worked, and that wasn't good enough. So I grabbed my good friend John Campbell and we scienced the crap out of it and we backed it up. And that was his whole point is that if you're going to make that statement, back it up. Why does it work on a neuroscience level and all that stuff? Anyway, now we're great friends. He's a great supporter. But I mentioned that because again, you don't always need to start with the defendant's story. If the bias, this comes back to the question, who here knows of anybody who despite their injuries are doing the best they can to try to hide their pain? It opens up the door to have a really rich conversation about invisible injury.

(28:25):

If I can prove to you that this person is, there's a lot more going on. Nick says, don't judge a book by its cover. I can show you there's a lot more going on than this surface, the mask, what the rest of the world sees, who's going to give me a shot? You've had that conversation in jury selection. Now opening statement, I call this the dead body in the water approach. My buddy Brian Kim and I, he's a great attorney and great friend out of LA. We called it the dead body in the water approach. When it comes to beginning your opening statement, when the attack against your client is the reason why they looked fine and it's because they are fine, I would never do this approach if the injury spoke for themselves if the injuries were obviously catastrophic.

Voice Over (29:04):

Okay.

Jesse Wilson (29:05):

You don't even say good morning. You stand up. Okay, counsel, you may proceed with opening statement. Thank you, Your Honor. You have your client stand up. You don't tell them. You never tell them ahead of time so they're surprised. Go ahead and stand up. This is, we'll call him Jonathan. This is a guy that I write about in the book. Jonathan Choto was the name of the witness. Jonathan, go ahead and stand up. This is Jonathan. He looks fine and we would agree he looks fine. He's going to walk, he's going to talk. He doesn't have what they call cane pain. And he's going to sit up there in this place where we tell the truth and he looks fine. But if you had x-ray goggles and you were to look inside his body, here's what you would see. And you describe all this stuff that the rest of the world wouldn't see.

(29:42):

So you get to ask yourself, is this person a liar, a cheater, or a fraud or not? I'm paraphrasing. You find you wordsmith, but that's the idea. And then you excuse your client.

Charla Aldous (29:52):

I know, but I lie. That is great.

Jesse Wilson (29:54):

So let's talk about why we're here.

Charla Aldous (29:56):

Have them leave the courtroom.

Jesse Wilson (29:57):

Have them leave the courtroom and let's talk about why we're here Sure. And now you get into the defendant's story because what have you just done? You've taken the defendant's greatest attack and you've shoved it right up their wazoo. The juror's greatest bias. They either are going to think that you're full of crap or not. So what do you got to lose? Why wait to tell your client's story? Because if that's the biggest bias, does this person have a brain injury or not? Is this person is really messed up or not? Is this person... The reason and they're saying, "Well, this is Jackpot Justice litigation lottery and they quit their job and now they're just looking for a handout." That's the biggest bias. So why wait for it? Get right up in front of it, get ahead of it. And because you've already had that conversation in jury selection, they're not going to be all that surprised when you say, "Eddie, Sarah, go ahead and stand up."

Charla Aldous (30:41):

And I love that you don't rehearse this with your client because it's been my experience. I've been doing this 40 years and when you rehearse things like that with clients, juries can smell it a mile away. They know it.

Jesse Wilson (30:52):

Oh yeah. Then it's dog and pony show. I am a big, big believer in, I know the word rehearsal gets a litle, but in preparation, I don't think you could ever overly prepare. I honestly don't. It's how you are preparing and what are you working? What is your goal? And your client eventually is prepared to be in a place to expect the unexpected. That's proper preparation. But when it's canned, when it's, all right, now just know when I stand up, I'm going to say, go ahead and stand up and I want you to... Yeah, then the jurors are going to be like, oh God, they're going to throw their tomatoes at you. Rightly so.

Charla Aldous (31:25):

So let me ask you this, Jesse. If you have a catastrophically injured client, I assume that you would do what David Ball would say in the opening is about the defendant.

Jesse Wilson (31:33):

Depends.

Charla Aldous (31:34):

Okay. On what?

Jesse Wilson (31:36):

Depends upon how much you trust that story. Depends upon how much you radically are going to trust what your jurors are going to come to the conclusion with. They're expecting you to blast away the defense. They're expecting that. And I'm not saying don't do that. I quote Bruce Lee all the time in the most important juror. And the most important juror is you, by the way. His famous line is, "Be water, my friend." The only absolutes is to tell the victor story. That's my opinion. And I know that's probably very controversial. I understand the science. I understand all the reasoning behind why you would want to start with the defendant's story, but I also subscribe to a great lesson that I got from the theater, a great lesson from the stage. Don't give it away so cheaply. And here's where the power of joy comes into play, Charla.

(32:16):

This is where joy really, really works in your favor and it's not just for the client. I would like to circle back on why we didn't really talk about the power of joy and why that's where it's not just about making your client likable or relatable. There's a real practicality when it comes to damages, but using joy in opening statement, I'll give you an example, a line, a hook line that I like if you're working on a trucking crash, catastrophic injuries or wrongful death. We all share the road every day with other drivers. And that's a line everybody can relate to. And then you could even throw in a rule when construction, I'm going a line that I'm working on a case right now. When construction companies put on safe drivers behind the wheel, people can get hurt. Now, what's the expectation? Now the obvious, the old school way is let's talk about who this defendant is.

(33:06):

You're going to learn about this trucking company and you're going to let me tell you the stats of this company. They're a trucking company and they've got a big fleet and they're all over the... But if I've started with that hook line, I've made a bank deposit, I've made a bank deposit, there's something. Ooh, that's scary. We all share the road every day with other drivers. And then I've given you a rule. When construction companies put unsafe drivers behind the wheel that some people can get hurt or that puts us all at risk. That's a little golden rule, but people going to get hurt and in January 19th, 2024, somebody did get hurt. Okay, so you've got that there. Now because I've made that bank deposit, I can make a withdrawal. I go into joy. I want to take you to four or five years before this crash happened and I give you a scene of joy or I can maybe take you to two days before the crash happened or the night before where there's a scene of joy.

(33:53):

Father's excited in the future, he's going on a road trip with his family, daughter's about to graduate. Morning of wife gives him a big hug, kiss on his neck and says, okay baby, I'll see you this evening. Date night tonight. Okay, date. Whatever it is, that's a little bit of joy because what does joy do? And this is what I'm looking for in every opening statement that I'm working on. I don't care what the case is, whether it's a med mal case, TBI, whatever it is, I'm looking for impending doom because impending doom is the thing that's going to create suspense, it's going to create betrayal, and it's going to magnify the damages at an even greater level. They're not idiots. They know why we're here where they're expecting the crash. Okay, let's get to it. What happened? Build it up a little bit. And it doesn't have to be much.

(34:39):

You're just building up enough a little bit to then just at the point where we think that, okay, we're going to get to the crash, then I might tease it out a little bit more. Okay, so if I've given you joy, then I take it right up to maybe the part where, and then I get the client on the road. Now let's talk about this company and who they are. And they're a big fleet and they've got over 5,000 trucks and they started here and da-da-da-da-da-da-da-da. The jurors have a mental picture of the client who's already on the road. I've used that joy to get them there. Then I could go into an opening statement. I could tease it out a little bit more. Again, not every case is the same, but more often than not, I like to go with a happy ending. Let me tell you a story that has a happy ending.

(35:23):

The defense does this and this and this and we're not here. I wish I could tell you that story, but if that were the case, we wouldn't be here. So let's talk about what actually happened. So I've blown up the balloon and now I'm slowly popping the balloon. It's a slow leak. They did this, they did this. Now I'm creating the feeling, holy shit. It's not a matter of if but when. And then boom, then I get into the crash. Now you throw in the rules. Now I love the rules, but the problem with the rule is this I don't care when you tell me them. If you give me a reason to care about the rules, then I'll care about the rules.

Charla Aldous (35:59):

I love that. So you talk about the joy in opening.

Jesse Wilson (36:01):

Absolutely.

Charla Aldous (36:02):

I haven't even voir dire.

Jesse Wilson (36:03):

Absolutely. Or

Charla Aldous (36:04):

Jury selection.

Jesse Wilson (36:04):

Oh yeah. Joy is the defense's joy killer. Most people don't think of joy as evidence, but it is. And it's one of those things that's so obvious that we forget about. When the witness is on the stand, is it important that they're likable, that they're relatable? Yeah, that would be great. Although I maintain you don't always have to have a likable client and you, the lawyer, don't always have to like your client, but that's a whole different... By the end of the case, it'd be shocking to me why you wouldn't at least like something about them, but that's a different story. We could talk about that later. But for the crossarm juror, how could I know the value of what's been taken from your client if you don't show me the value? What's that value? Joy. J-O-Y. And so when the witness is up there, let's just say they've had a really, really tough life.

(36:49):

Let's just say that it's not that much to talk about how life was so joyful before they got hurt. I mean, I worked with a woman the other day who she was her whole life. It's a really, really tough case. I mean, she's an abuse survivor. I mean an abuse survivor, not just dad was mean to me. It was awful, awful, awful stuff. And whatno lot of joy in her life, which makes the one thing that she had like a candle in the dark. I steal that line from Mo Levine and we magnified that candle in the dark. The one thing that she was good at was being a surrogate mother to these two boys. She was good at that. Everything else in her life was a shit show except for the one thing in her life that she was really good at. And when she talked about those two little boys, she lit up like Christmas morning.

(37:29):

We finally found it. We finally found it. That joy is evidence. How can I know the value of what's been taken from this person? And talking about joy ain't the same as showing it. I could say to you right now, say, Jesse, tell me about your son. What is it about your son that gives you joy? Go ahead and ask me that question.

Charla Aldous (37:45):

Jesse, what is it about your son that brings you joy? I can look at his pictures on Facebook and tell you a few, but you tell

Jesse Wilson (37:51):

Me. Yeah, well that's cheating. But yeah, okay, let's pretend you've never seen that picture, but go ahead and ask me that question.

Charla Aldous (37:56):

Jesse, what is it about your son that brings you joy?

Jesse Wilson (37:59):

Well, among many things, he's a wild man and he likes to rock out and pretend that he is like Pete Townsend from The Who. And he just likes to wave his arms up and down and jump around the house and he puts on a show for his mom and I practically every night. Well, I told you about joy, but what was missing? Joy.

Charla Aldous (38:18):

Yeah, it was not very joyful.

Jesse Wilson (38:21):

Talking about joy ain't the same as -

Charla Aldous (38:22):

Let me ask the question again then. Jesse, what is it about your son that brings you joy?

Jesse Wilson (38:29):

He's a wild man.

Charla Aldous (38:31):

I love it.

Jesse Wilson (38:31):

I didn't have to say much, did I? So that's the power of joy. We get it. And I steal this line from Maya Angelou. Jurors never remember what you say. They remember how you make them feel. Within one less than a nano instant, I gave you the value of my connection to my son. So we're not going for theatrics here. This ain't acting. It's a sliver of light underneath that in the darkness. That's all you need. You just need the witness to be able to connect to that joy. You see it, we see it. Yo feel it, we'll feel it. It's the alchemy of communication and connection. We get it without having to give me a PowerPoint for the things that gave you joy. But what you're doing with joy in direct with your witness, I've got the three acts of direct examination that I walk witnesses through.

(39:17):

That's the structure of the victor conversation. I also call act one the bank deposit because when you deposit the joy, now you get to withdraw the pain, which gets us into act two. And act two, I steal this line from the Navy SEALs. You probably remember me saying this. I call it embrace the suck.

Charla Aldous (39:33):

I do remember that.

Jesse Wilson (39:34):

Embrace the suck. Not tiptoe around the suck, but embrace the suck. But there's a caveat to it. I have the witness actually write these down. There's very few times I have the witness write stuff down when we're working with them. But this is so important because act two contains just as much pivotal joy as act one and act three. And that's embrace the suck, but get to the butt. And it's the one time the witness can ever volunteer any information preparing for deposition and trial. You never want to guess, you never want to volunteer information. Yo only know what you know. Stay in your hulp, all that stuf. That's standard stuff. Except for one time and one time only I instruct a witness. You can ever volunteer anything and that's when you get to the butt. And the butt is the victor story. And what I mean by that, can I give you a brief example of that?

Voice Over (40:20):

Yes.

Jesse Wilson (40:20):

You might've heard me share this before, but it's one of the best examples where the witness on the stand volunteered the butt. It was beautiful. Almost word for word. I got so many examples. I got witness all over the country, by the way, they shoot videos of themselves to practice the suck to butt scenes, to be able to practice joy, to literally like suck to butt. Yeah. Somebody suggested that should be the title of my next book.

Charla Aldous (40:42):

I love that. The suck to butt. You're not going to forget that

Jesse Wilson (40:44):

One. Well, I mean, it's a grabber, right?

Charla Aldous (40:47):

I don't know about that. I kind of like it though.

Jesse Wilson (40:50):

So this witness is on the stand. She had this thick Brooklynese accent. Her husband, we'll call him Frank, we'll call her Edie, had been killed in this horrific trucking crash. She's on the stand and she says, "After Frank was killed, I could barely get out of bed. And getting out of feeding was an impossibility. My kids literally had to feed me and scrape me out of bed just to eat. And one morning I though, that's it. I'm done. Stick a fork in me. " She pauses and she pauses and she pauses and tears are coming out her eyes. And God bless the lawyer who didn't try to save her, who kept her in the suck. God bless that lawyer who didn't try to rescue her and go on to the next thing. She eventually found the butt. She looked across the room. But when I look across the room, she says, and I see that picture of Frank with that goofy, stupid, smiling look on his face and she starts to smile.

(41:40):

"I took that picture about two weeks before this happened, "she says. She looks at the jurors. "I heard him say just as clear as day, Edie, get your ass out of bed." And so I took the next step and guess what? I'm still walking.

Charla Aldous (41:53):

That gave me goosebumps.

Jesse Wilson (41:55):

Game-changing moment because she knew her role and the lawyer knew her role and knew his role in ladies and gentlemen of the jury, my client is not her pain. She is the strength of trying to overcome her pain. So in this scene, he backed it up. He literally could have turned to the jurors and say, "Did I not tell you? "

Charla Aldous (42:14):

Oh, that's beautiful. I love

Jesse Wilson (42:16):

It. And that kept her in victor lane, not victim lane. So yeah, joy is just as important in act two as it is in act one, maybe even more.

Charla Aldous (42:24):

All right, we're getting close to time, but I've got a few. I'm going to have you back for another podcast.

Jesse Wilson (42:29):

I would love to. I love talking to you.

Charla Aldous (42:31):

Phil, the same. I got to ask you this. I always ask lawyers this. How important do you think closing argument is? Do you think that is where you win the case? Because that's when the people come to watch and it's so exciting.

Jesse Wilson (42:40):

No.

Charla Aldous (42:41):

I'm so glad you said that.

Jesse Wilson (42:42):

It just confirms what they already believe.

Charla Aldous (42:44):

Okay. That's exactly what I thought.

Jesse Wilson (42:47):

Yeah.

Charla Aldous (42:47):

You've given us quite a few case examples here, Jesse, but can you think of any particular case where reframing the witness or story dramatically altered the outcome where you went in and it was all... Okay, can you just tell us one?

Jesse Wilson (43:00):

Yeah. Yeah. Well, the case I was just talking about, this is the dead body in the water example, and I write about this in this one in book two. This is where I really, really trusted with Brian Kim, the power of getting in front of the attack. The reason why the plaintiff looks fine is because they are fine, is what the defense is saying. This was a slip and fall at McDonald's, and I joke that the only other bias that's bigger than the bias against McDonald's is a slip and fall at McDonald's.

Charla Aldous (43:27):

Wait, that's the truth. I mean, I don't know if I'd take that case. I love it.

Jesse Wilson (43:31):

Yeah. I mean, it was so big and the jury selection was a battle and jurors pushed back and Brian stood up there and he said, "So listen, if you though this was one of those cases, it's not. And give me a chance to back it up." But what was great about that trial, and this came from the witness, again, really knowing their role where, and this just happened organically. It was a beautiful thing. This is where it does make sense to have the witness in trial. Again, not every case absolutely made sense for Jonathan Chota, the plaintiff, to be there in trial. His mom gets up on the stand. Now, I hadn't worked with mom in my defense, so otherwise I would've, but she gets up there and she starts talking about all the things her son can't do. "Oh no, he can't do this.

(44:15):

Oh, he can't do that. He absolutely can't do that. Oh no, he can't do that. He used to be able to do that. " And she says, "The water works." And I'm like, "Okay." So Jonathan gets up on the stand and Brian Kim says, "Jonathan, hearing your mom saying all this, what do you have to say about that? " He said, "It makes me angry. I mean, she's my mom and I love her and I get it, but that's not me. And it makes me feel, boy, if she's seeing that, all the things that she's saying, that tells me that I need to work even harder to prove to her that I'm not that person." So we managed to rehab it, but pushing back on Jonathan, not only his credibility, but ours as well.

Charla Aldous (44:49):

In that particular case, I can understand how a jury would think a mom is going to try to say all the things that he can't do. Although if you'd worked with her, she probably wouldn't have said it that way.

Jesse Wilson (44:57):

Well, yeah, that's right. I would've been, oh gosh, Jesse, come on. But yeah, no, there was another case, and this is very similar to, this is a recent one where I actually wrote about, it was so interesting how it's paralleled to what I wrote about in book one. This is a school teacher. Again, that one sliver of light, that one candle in her life that was her life before. And this woman had flunked, I want to say, three or four focus groups, which is again, I mean, not a bad thing. I think ultimately the result you want from a focus group is more negative reinforcement than positive ones so you know what to do to pivot. But yeah, it was pretty bad. Everybody was like, oh my God, whiner, linger, a malingerer, victim, victim, victim, victim, victim, victim, and defensive and argumentative. And I worked with this woman for a while and got her to change her relationship to her listeners is something I talk about a lot, is that you can go through all the different cosmetic exercises and they remain simply cosmetic and smile and less is more and look at your jurors and body language and that will be meaningless if they haven't.

(45:59):

And they may still understand intellectually their role as victory. And the biggest confirmation bias that you see is in the witness who just cannot get themselves out of victim trap. So this woman was able to change her relationship to your listener. What I'll often say is when you change your relationship to your listeners, not only does the conversation change, but you change. She literally, this is the power of visualization and belief. She literally saw her jurors as her dead sister. And because I asked her during prep, who is one person who needs to hear your story? Imagine if there was that one person who, when I worked with inmates, I would say, if you could save a life with your story, would it be worth it? And nobody's ever said no to that question because ultimately you get yourself to a place where the story is no longer about you, but about inspiring your listener.

(46:45):

She got herself to that place. Her sister took her own life and she imagined the conversation of what it would look like if she, her sister were to hear her story, her sister's story, the plaintiff's story about not giving up. And the plaintiff, we'll call her Joanne. Joanne said, yeah, I believe that she would've heard this story from me and maybe would've given her pause because she would've said to herself, Joanne, if you can do this, I can do it. That was all a part of, that was the personal connection. And then when she got off the stand, I said, how'd that feel? She said, ask my sister. And because she imagined that she was talking, I said, "Well, what do you think your sister would've said?" She said, "I'm proud of you, Joanne." And the jurors have, of course, no idea who she was talking to, but she beat that armored nakedness, that vulnerability came through and we got justice for

Charla Aldous (47:31):

Her. I absolutely love that story. Okay, Jesse, what advice that lawyers listening today need to do immediately on cases besides hiring you?

Jesse Wilson (47:42):

You got to know what story you're telling and make a choice. You're either going to tell the victor's story or the victim's story, and it's that simple. You're the director. We hear the word storytelling all the time. Storytelling, storytelling. And yeah, you are a storyteller, but you're a director and great directors know what they're looking for. Great directors are always finding the fight in the character, whether it's on the page or not. They know what they're looking for. Cast smartly. And that begins casting yourself in the right role as well. And then I would say once you've made that choice to tell the victor's story versus the victim's story, trust the joy.

Charla Aldous (48:15):

I love that. I love casting yourself. I mean, which role am I going to have here? That is absolutely beautiful. All right, Jesse Wilson, how can people find you? How do they contact Jesse?

Jesse Wilson (48:26):

Really simple. Tellthewinningstory.com. That's my website. My email is Jesse - Is that

Charla Aldous (48:31):

Really your website?

Jesse Wilson (48:32):

Yeah.

Charla Aldous (48:32):

Tellthewinningstory.com.

Jesse Wilson (48:35):

Tellthewinningstory.com. That's really my website. And then my email address, Jesse, J-E-S-S-E@tellthewinningstory.com.

Charla Aldous (48:42):

Jesse@tellthewinningstory.com. Thank you so, so much for being here today. I have thoroughly enjoyed it.

Jesse Wilson (48:50):

Thank you so much for having me. It was so great talking to

Charla Aldous (48:53):

You. We're going to have to do this again. I loved it.

Jesse Wilson (48:55):

Anytime.

Charla Aldous (48:56):

Okay. Bye-bye.

Jesse Wilson (48:57):

Bye.

Charla Aldous (48:58):

Thank you for listening to another episode of More Likely Than Not. We look forward to seeing you next time. I think you can tell, and we at Aldous Law here, we actually kind of like each other and we absolutely love, love what we do. And we work a lot of our cases up from the get - go, but we're brought in on cases a lot. We try cases all across the nation. If you have a case that you're interested in talking to us about, we'd love to hear from you. We've tried everything from trucking, workplace injuries, explosions, and burn cases, dram shops, rideshare sexual assaults, birth injury, your personal injury cases. If you need a partner to help you with your case, please call us. We can be contacted at allduslaw.com. We'd love to hear from you.

Voice Over (49:41):

You've been listening to More Likely Than Not, where the Aldous Law Team turns small margins into massive victories. Love what you heard? Don't miss an episode. Subscribe now, leave a review, or share this with a fellow trial warrior. Remember, we're all just 0.01% away from tipping the scales, produced and powered by LawPods.