matt dodd| Episode 08

Matt Dodd  0:00  
Because when we're cross examining, it's- it's one more chance for us to tell our client story. I mean, we get to tell it in an opening, we sometimes get to tell it when we're selecting a jury. We can tell it in closing and on direct when we're using our witnesses, we kind of know what the story is going to be, right, because there are witnesses. But when we're cross-examining, it's one more opportunity to tell our story and not be locked into the story that the state wants to tell, that the commonwealth wants to tell, that the federal government wants to tell. We're telling our client's story through their witnesses.

 

Aaron Nelson  0:39  
Welcome back to another episode of Sanctuary in the Jungle. I'm your host, Aaron Nelson. Joining us this week is Attorney Matt Dodd. Matt is a cross-examination expert and part of the royal family of criminal defense. Today, he gives us the lowdown on how to use cross-examination to build sanctuary for your client. As he says, "cross-examination is another chance to speak on your client's behalf. A chance to show their story fact by fact, and empower juries to agree with your conclusions". This bow-tie lawyer brings his southern charm wherever he goes, reminding us that we should always lead with decency and kindness, whether it's using constructive cross methods to build rapport or showing appreciation for court staff and prosecutors. Matt finds success with 'please', 'thank you', and plenty of Girl Scout cookies. This episode is perfect for lawyers and non-lawyers looking to improve their communication and persuasion skills, so join us as we lay the groundwork on telling story through cross. 

 

Aaron Nelson  1:43  
Hello. Welcome back to Sanctuary in the Jungle. We're here today with Matt Dodd. Thanks for coming here today, Matt. 

 

Matt Dodd  1:49  
Oh, happy to be here. I appreciate it. 

 

Aaron Nelson  1:51  
Yeah, you're coming all the way from Montana. Is that right? 

 

Matt Dodd  1:53  
Yes, sir, yeah. 

 

Aaron Nelson  1:54  
Matt's a practicing attorney out there. It's snowing here in Hudson, Wisconsin, and I was complaining about the snow. And then how much snow have you guys got recently?

 

Matt Dodd  2:03  
We got almost 20 inches last weekend at my house.

 

Aaron Nelson  2:05  
Wow. So you're living up in the mountains over there, right? 

 

Matt Dodd  2:08  
We are. We're real lucky. Yeah.

 

Aaron Nelson  2:09  
Yeah. Beautiful views, huh? 

 

Matt Dodd  2:10  
Yep. We are- just have to walk outside and then you got them all around.

 

Aaron Nelson  2:15  
Well, wonderful. We're looking to get your views on all kinds of other things today, and I'm sure those will be beautiful as well. So, tell me a little bit about yourself. You start you grew up outside of Montana. Is that right?

 

Matt Dodd  2:26  
I did. I grew up down in South Georgia in the 80s and 90s. Loved growing up there, but very, very different from where I am now. 

 

Aaron Nelson  2:33  
Yeah. How so? 

 

Matt Dodd  2:35  
Good and flat. There were no mountains around, so you could see the tree line, and that would be about as far as you could see.

 

Aaron Nelson  2:41  
Yeah? What'd you do with yourself when you were a young kid growing up in Georgia?

 

Matt Dodd  2:44  
I think I grew up like most the kids down there, hunting and fishing. We got out on the water as much as we could. 

 

Aaron Nelson  2:49  
Okay. 

 

Matt Dodd  2:50  
Through the summertime, and then lucky enough to chase my dad around courtrooms all over the South for a lot of my growing up.

 

Aaron Nelson  2:56  
Yeah. So you've had a different childhood than a lot of the other guests that we've had here, or maybe people watching it. Is your- your dad's a criminal defense lawyer as well. Is that right?

 

Matt Dodd  3:05  
He is, yeah, my dad's Roger Dodd, so I was lucky enough to have him as a mentor. Still have him as a mentor. In fact, we're gonna go work on a case two days from now.

 

Aaron Nelson  3:14  
Yeah, you just said from here you're flying out to go meet him. Is that right? 

 

Matt Dodd  3:17  
It is. Yeah. We're lucky enough to get picked up in another state, and so we're gonna go, go help somebody out there.

 

Aaron Nelson  3:22  
Yeah, so I've never met your dad, but I've certainly read about him. Is- his book is behind you there. The, you know, the cross examination book, "Posner and Dodd". I've read that many-a-times. And so I was trying to explain to our producer, Anna, just kind of the- the royalty that I consider, consider you to be, right? You're part of the royal family or Hall of Fame, Hall of Fame, locker room-

 

Matt Dodd  3:45  
Maybe the jester of that royal family. I don't know.

 

Aaron Nelson  3:45  
Yeah, what was it? Because, I mean, I think of it as, like, you know, Ken Griffey Jr, you know, grew up in the locker room, following around all these other professionals. It sounds like you had an equivalent or similar thing in the law field.

 

Matt Dodd  4:00  
I mean, it was fun, and it still is. You know, I told you last night, I've got a senior partner who will always pick up the phone for me. 

 

Aaron Nelson  4:07  
Yeah. 

 

Matt Dodd  4:07  
You know, he's got hundreds of jury trials. You know, worked on death penalty cases early in his career, has done civil work and family work and criminal work for I think he either just did or just about to roll 50 years on it. 

 

Aaron Nelson  4:21  
Oh, wow. 

 

Matt Dodd  4:22  
Which is amazing. 

 

Aaron Nelson  4:23  
Yeah. 

 

Matt Dodd  4:23  
Got that resource that most folks don't have. 

Aaron Nelson  4:25  
Absolutely.

 

Matt Dodd  4:27  
I think not- I think, I mean, it was intimidating for a lot of years. I didn't want to get into law, because I figured I wasn't going to be Ken Griffey Senior. I wasn't going to get as many at-bats. I wasn't going to get as many, many trials. And, you know, for good or for bad, he cast a big shadow, has a big presence in my life and in- in our profession and-

 

Aaron Nelson  4:48  
I imagine there's some privilege that comes along with it, and some pressure that comes along with that.

 

Matt Dodd  4:52  
Yeah, a little bit. For sure. I mean, it's great. It opened some doors that probably never would have opened. 

 

Aaron Nelson  4:52  
Okay. 

 

Matt Dodd  4:52  
And so I'm real, real thankful that those, you know, I've had those opportunities. 

 

Aaron Nelson  4:52  
Yeah. 

 

Matt Dodd  4:52  
I mean, I always kind of joke with people that I think even if the doors open, I still got to walk through and not get myself thrown out. 

 

Aaron Nelson  5:08  
Absolutely. 

 

Matt Dodd  5:09  
But it's been really nice that it gives me a little bit of credibility right off, off the go sometimes that other folks don't have. 

 

Aaron Nelson  5:15  
Yeah. So the you were a kid, do you know you weren't just joking around you like, literally, would tag along and go watch cases with him.

 

Matt Dodd  5:21  
Oh yeah. I mean, you know, I'm sure he didn't take me to any of the heavy stuff, and I'm sure there's lots that I missed. But I mean, I remember sitting with my little yellow pad in the back of the courtroom next to the bailiff. And it was small town Georgia, so they know me, and they don't move there unless you need to go bathroom kind of thing. I'd sit there and he'd come collect me at the end of the lunch period or at the end of the day. 

 

Aaron Nelson  5:40  
Yeah. 

 

Matt Dodd  5:42  
Yeah. It was, it was, it was different. It was fun. And I kind of got to see how he interacted with people and how he treated people. And- 

 

Aaron Nelson  5:50  
Sure. 

 

Matt Dodd  5:50  
You know how juries and judges treated people.

 

Aaron Nelson  5:52  
Yeah. So I grew up, my father's big influence in my life. He, he ran a service station, a gas station. So I worked there, got my hands dirty, not as dirty as he did. He was doing the real heavy lifting, and, but I got a chance to see him interact with other people. And much like the work we do, people go there because something's not working. 

 

Matt Dodd  6:18  
That's right. 

 

Aaron Nelson  6:19  
Something needs to get fixed, and somebody needs help, and it was- as I've grown older, you know, I reflect back on that, and just the opportunity to see my dad help people. Was that something for you? 

 

Matt Dodd  6:31  
Absolutely. I mean, that's all he did was help folks and in our town and in the south then that time. I mean, it was still very- segregated is not the right word, but there's definitely a black side of town and white side of town. And he was super comfortable moving over to that other side of town and helping those folks. And they welcomed him in because he helped folks. 

 

Aaron Nelson  6:54  
Yeah. 

 

Matt Dodd  6:55  
Didn't matter what color you were, didn't matter if you had money or not. If you're accused of something you need some help. You know, he'd help you.

 

Aaron Nelson  7:01  
Okay. 

 

Matt Dodd  7:01  
Which was really pretty neat to see that, you know, where I grew up, when I grew up, you know?

 

Aaron Nelson  7:07  
Yeah, was it- is the story from you about there was a different phone line set up, even like he'd give his phone number out, but he had another, he had a- he had a special phone. Was the Bat Phone in the house?

 

Matt Dodd  7:17  
Those were the days, right? But he had landlines, and so we had one in the kitchen for us on the big 20-foot extension cord, and he had one off to the side in his office that was just for him to pick up. So clients or judges or cops or whomever could call him, because we live in a small town. You know, 40,000 people, and we live literally right next door to the county attorney. 

 

Aaron Nelson  7:38  
Okay. 

 

Matt Dodd  7:38  
His his son was also named Matt, and, you know, Matt and I would play together for years and years, growing up and and, and I didn't realize this at the time. I really appreciate it now, but I know now that my dad, Roger and Lamar Cole, the county attorney at that time, had cases against each other constantly, and they had death penalty cases against each other, and they would still if they saw each other in driveway. "Hey, Roger". "Hey Lamar". They're both polite. They're both respectful of each other, and they might not have hung out in the evenings, but we've lost some of that, that, that just being people to each other, being respectful of each other, and even if we don't agree, even if we're representing different sides. We can still be human to each other. 

 

Aaron Nelson  8:04  
Yeah. 

 

Matt Dodd  8:05  
And that's pretty cool that now I can look back and say, Oh my gosh. I don't know how he did that, but he did. 

 

Aaron Nelson  8:11  
So, it seems like your path is pretty well established. You know, Dad's Roger Dodd. You know, you're gonna go to school and go- and you took a little different path, though. 

 

Matt Dodd  8:11  
I did. I took a little bit of a detour. I was all set to go to law school or after college. I'd taken the LSAT. I just figured I'd slot right in. But, I took a year to go skiing in Montana. That year turned into almost a decade, and then I finally got back to school. So I'm glad I took the detour. I think I was a better, more well-rounded person by then. Yeah, but it took a little while for me to find, find my way back to the courtroom.

 

Aaron Nelson  9:06  
Yeah, and you- ski instructor and other other adventure items during that 10 year break? 

 

Matt Dodd  9:13  
I did. I was lucky enough to ski teach in Montana and Germany. I got to travel to New Zealand and ski a bunch, and then I was- I worked for a travel company, which is where I met my wife, and- 

 

Aaron Nelson  9:23  
Oh, wonderful. 

 

Matt Dodd  9:24  
We were lucky enough to travel all over the world and see some things that I never thought I would have seen.

 

Aaron Nelson  9:29  
Yeah, so then you went to law school in the mountains still?

 

Matt Dodd  9:34  
I did. I came back to Utah to go to school, and it worked out well. It was a little cheaper than where I was thinking I was gonna go, and I could still ski on the weekends, and occasionally in the mornings, there was a lot of powder and a class wasn't super important. It let me stay kind of grounded even through law school. 

 

Aaron Nelson  9:54  
Sure.  

 

Matt Dodd  9:54  
Remember that- a tough time. 

 

Aaron Nelson  9:56  
Yeah. 

 

Matt Dodd  9:57  
Learn a new language. Deal with a bunch of people. Some- a lot of whom were smarter than me, and, you know, trying to figure all that out.

 

Aaron Nelson  10:03  
Yeah, so we're gonna get back to kind of your career, but now, now, as you sit here, now, you know, in 2025, been a lawyer for, you know, 15 years or so? Tell me how, how your practice of law, what you learned from skiing being a ski instructor, right? What? How is that fit in with now, as you look back because me as a- I dabbled with some soccer coaching at a time, and there's definitely some connections that I've now made in my head. Have you made any of those with kind of life lessons from skiing to law?

 

Matt Dodd  10:39  
You know, I think with both of them, I'm lucky to get to do the things I do, because not everybody gets to do that, or has the ability to do that. But beyond that, you know, things- trial work is similar to skiing, and that you got to be flexible. You got to be adaptable, because you can plan for all you know, what you think are all eventualities, and then something will, something will sneak up on you. 

 

Aaron Nelson  11:00  
Sure. 

 

Matt Dodd  11:00  
There's a rock in your path, the prosecutor comes out with a document that, "oh, they just found a few minutes ago", whatever it is, and you can't stop. You have to keep moving. You don't get to hit pause most of the time, whether it's skiing or in the courtroom, particularly if you're in front of a jury. 

 

Aaron Nelson  11:17  
Yeah. 

 

Matt Dodd  11:18  
You know, when I was ski teaching, I'd have people say, "Oh, you look so smooth out there", and like I didn't feel it felt anything but smooth. I mean, it was all I could do just to stay on the path, let alone, you know, give you this demonstration I'm trying to give, and in front of the jury, I can say for myself, often I am terrified, or there's something that I know has gone horribly sideways or is about to go sideways, but you can't show any of that. You just sit there with a neutral look or with a smile, or, you know, you walk up to a bench conference and judge rules against you on an issue you should have won that 10 times out of 10, and you walk back with a smile. So the jury sees that confidence and figures things. "Oh, okay, I guess it broke his way". 

 

Aaron Nelson  11:56  
Yeah, exactly. Matt won that one. 

 

Matt Dodd  11:57  
Yeah, you know. So I think, you know, it is a bit of show. Both of it. 

 

Aaron Nelson  12:04  
Yeah.

 

Matt Dodd  12:05  
And it takes a lot of hard work to- to make that show look smooth and even and and do right by the client. 

 

Aaron Nelson  12:11  
Yeah. Imagine, imagine a Georgia kid going up to Montana. Your first couple of times down the mountain. It wasn't a- didn't look natural-esque.

 

Matt Dodd  12:20  
It was not natural at all. I was, I was the worst skier on our ski school. I was 164 of a roster of 164. 

 

Aaron Nelson  12:27  
Wow. 

 

Matt Dodd  12:28  
On day one, I took a fall and had a yard sale and blacked my eye and bloodied my lip, and that was how I started day two, as a ski instructor. When I finished, I was number four on a roster of 200 and some, and couldn't get any farther ahead unless a couple people died out ahead of me. But it was a lot of work and a lot of time and a lot of repetitions and a lot of days on snow, just, you know, just like what we do.

 

Aaron Nelson  12:57  
I was gonna say, I imagine, even with your, you know, as I'd say, royalty background, you know, your first day in court, maybe you didn't have a yard sale, but maybe stumbled. It wasn't as natural as it is now.

 

Matt Dodd  13:08  
Oh, I remember my first day in court. I didn't have any clients, didn't know how I was gonna make any money. And an older lawyer, Chuck Watson, very, very good lawyer, who was nice to me and took pity on me and called and said, "Hey, you want a client?". I said, "Yes, sir". He said, "put a suit on and meet me at the courthouse in an hour". So I did. And I got there, and I looked around for Chuck, and couldn't find him, and he wasn't anywhere. So I walked in the courtroom. There he was at one of the benches in the gallery, and motioned me over, and he said, "Here's your client. Here's your lawyer". And he walked away. Didn't tell me what the case was about, didn't tell me anything about it. Didn't know even what I was doing there. And so I introduced myself to the client, just terrified. And he was nice enough to me, and judge called his case. And I walked up and judge said, which one of you's a lawyer? And at the time I went beat red, and said, "well judge I am" and- and in retrospect, I know that meant the client was dressed right for court. And-

 

Aaron Nelson  14:08  
Yeah, it's a good thing. 

 

Matt Dodd  14:09  
I wish somebody would do that to me now, but I will never, ever, ever forget that. I was just terrified.

 

Aaron Nelson  14:16  
Well, all the viewers want to know that first day when he says, "throw on the suit". Did you come with a bow tie? 

 

Matt Dodd  14:21  
I did in fact. 

 

Aaron Nelson  14:22  
Wonderful, wonderful. 

 

Matt Dodd  14:24  
And my wife got me onto those when I was clerking. 

 

Aaron Nelson  14:26  
Okay. 

 

Matt Dodd  14:27  
And I remember the first day, it took me about three hours to tie it, and I was very, very angry. And then I realized I liked it because it wasn't in my way. 

 

Aaron Nelson  14:34  
Yeah, yeah. 

 

Matt Dodd  14:35  
And so now I don't get it in my food, I don't get it on my papers. I put it on the morning, and don't have to think about it anymore, and it's on until I go to bed. 

 

Aaron Nelson  14:42  
And now it's just who you are. 

 

Matt Dodd  14:44  
Honestly it is. And there are clerks that will refer me out, like, "Go talk to the bow tie lawyer. He'll fix you up".

 

Aaron Nelson  14:50  
There's worse things that we get called than a "bow tie lawyer".

 

Matt Dodd  14:52  
Yeah, that's right, that's right. I think it's- it's worked for me. People laugh, but I'll tell you one little story. I walked in, walked into the courtroom one- at one morning, and I was, I'd been practicing a few years at that point, but I was still nervous. And we had a jury that morning, and the jury was in the little- in the box, just ready for voir dire, and the clerk comes over. She says, "Mr. Dodd, come here". And I walked over to her, and she was older woman, very, very nice and Miss Karen said, "your bow ties all wonky". She fixed my bow tie for me. She said, "you're fine. Now go back to your table". And I did, and I just smiled, and the jury- I looked over, and the whole jury box was just smiling at me, and I was okay then. If she liked me, then they liked me. 

 

Aaron Nelson  15:36  
Absolutely. 

 

Matt Dodd  15:37  
So now, every time I go into court, I'm like... so that somebody will hopefully fix my tie for me, because I'll take every little bit of help I can get.

 

Aaron Nelson  15:45  
Yeah, right? I mean, there is something to be said for vulnerability. Is that, I mean, because that's really what it was, right? I mean, you, you didn't come in there perfect.

 

Matt Dodd  15:54  
No shoot... especially not our clients. 

 

Aaron Nelson  15:57  
Yeah. And so not only did you not come in there, perfect, but you were humble enough to accept, accept some aid, accept some help.

 

Matt Dodd  16:04  
I don't know that she'd have given me a choice.

 

Aaron Nelson  16:05  
That's sometimes, yeah, that's all right, though, that's all right. So I know you are certainly a humble man. You know you're very sincere, but you're also a national expert when it comes to cross-examination, you've just finished presenting for NACDL I know you have in the past for NCDD, DUI, DLA, lots of different organizations, and you have your own cross-examination workshops that you put on. So tell me a little bit about that. How'd you become an expert at cross examination. 

 

Matt Dodd  16:41  
Shoot. I mean, my dad jokes that I'm an expert by osmosis, just because I heard it my whole growing up. I got cross examined every time I came home from anywhere, and I wasn't that popular, so I didn't have that many dates. And my wife's hearing this, she'll probably tell me I had no dates. But, you know, I got cross-examined when I came home. But again, I was lucky enough to be able to go out and try that, and then call him and say, "Hey, here's a transcript. What do you think? What could I have done better here?". I think about this and and then I've been lucky enough to teach and coach with him the last, I don't know, dozen, dozen or more years, and that's been really fun. And then I've gotten to do a bunch of coaching and teaching on my own and lecturing on my own, and then work with other folks like you and others just out and around the country. And so I'm learning from other people as I'm teaching other people. 

 

Aaron Nelson  17:28  
Yeah. 

 

Matt Dodd  17:28  
And that's, that's, I think, pushed my ability, pushed my career farther than anything else. I mean, I was on a phone call with a public defender last week, and she was asking about something, and I said, you know, I know a little bit about that, but here's who you need to call. And she said, "Wow, your network's really big". And I was like, "Well, yeah, that's, I mean, when I'm traveling, I teach, when I'm coaching, that's what I get to do. I get to meet all these wonderful lawyers and learn from them, and and then I can have somebody like, 'Oh, I've got a case, and I my client also is charged in Wisconsin. Who do I call?' I can call Aaron". I mean, that's, it's, yeah, I'm lucky, because I got to learn from so many good people, and still get to learn from so many good people. 

 

Aaron Nelson  17:51  
Sure. 

 

Matt Dodd  17:51  
But, and it's really fun going out and teaching and coaching. I love coaching people. I love being able to help people figure out: "What's your goal. Okay, let's figure out how we get there".

 

Aaron Nelson  18:20  
Yeah, so let's unpack a bunch of that, because we haven't, you know, most of our audience, you know the 100 or so people that listen to this. 

 

Matt Dodd  18:28  
102. Both my both my staffers are gonna listen to it, yeah. 

 

Aaron Nelson  18:31  
Wonderful. It's always good to- improve our audience background. But some of them may not know necessarily aren't lawyers or aren't with law degrees, right? And so just really basic like, cross-examination. If you were just going to simplify it, what is, what's a cross examination?

 

Matt Dodd  18:47  
It's just asking questions to the other person's witnesses. 

 

Aaron Nelson  18:49  
Yeah. 

 

Matt Dodd  18:50  
So if we're talking criminal cases, it'll often be the cop that we're cross-examining. It might be the medical examiner or a state's expert. It might be the witnesses, because usually in our criminal cases, witnesses are not good for us. 

 

Aaron Nelson  19:03  
Sure. 

 

Matt Dodd  19:03  
Like sometimes witnesses are co-defendants. 

 

Aaron Nelson  19:05  
Citizen witnesses of some sort. 

 

Matt Dodd  19:07  
That's right, it's people who saw what happened. 

 

Aaron Nelson  19:09  
Yep. 

 

Matt Dodd  19:09  
Or it might be the victim, or the alleged victim, if there hadn't been a conviction yet. And we're talking to people who have accused our clients of very, very bad things.

 

Aaron Nelson  19:19  
So when you're, you know, what I think of is typically adverse witnesses. I know we'll get into it, and sometimes maybe we can make those adverse witnesses our witnesses. 

 

Matt Dodd  19:27  
That's right. 

 

Aaron Nelson  19:28  
But you're going into a scenario in which you're asking somebody who's adverse to your- to your goals. 

 

Matt Dodd  19:35  
Yeah. 

 

Aaron Nelson  19:35  
Some, some questions, right? 

 

Matt Dodd  19:37  
That's right. 

 

Aaron Nelson  19:38  
Are there just some general things that you think about is like, in general, when, where I'm going into this situation where I need to try to get some information, some facts- 

 

Matt Dodd  19:48  
Sure. 

 

Aaron Nelson  19:48  
From somebody who's adverse to it. What do you do?

 

Matt Dodd  19:50  
And I think that's, you hit the nail on the head. You're looking to get facts from them. They don't agree with you, and you know they don't agree with you because they're witness for the other side. 

 

Aaron Nelson  20:00  
Yeah. 

 

Matt Dodd  20:01  
The cops never gonna say, "You know what? Mr. Nelson, you're right. Your witness, your client is not guilty. Your client didn't do that thing". Have you ever had that happen? 

 

Aaron Nelson  20:09  
"He didn't look drunk". 

 

Matt Dodd  20:10  
No, "he didn't look drunk". Or "he didn't, he didn't pull the trigger". 

 

Aaron Nelson  20:12  
Yeah. 

 

Matt Dodd  20:13  
And so, most of these people, they don't want to talk to you, and if you're talking to victims, they absolutely don't want to talk to you. 

 

Aaron Nelson  20:17  
Sure. 

 

Matt Dodd  20:17  
You're evil. You're the bad guy. You're the one trying to help their- their- the person who hurt them. 

 

Aaron Nelson  20:24  
Yep. 

 

Matt Dodd  20:25  
And so I think, well, when I'm in the courtroom, one of the things I think about is, look, these are just people, and so I'm going to treat them like people. 

Aaron Nelson  20:33  
Yeah. 

 

Matt Dodd  20:33  
And so I will often tell my clients, "you will see me smile at the cop. You will see me laugh with the cop. You will see me make jokes". And I do that for a couple of reasons. One, because it loosens them up. It makes me more relatable. 

 

Aaron Nelson  20:46  
Yeah. 

 

Matt Dodd  20:47  
Not just to the to the cop that I'm crossing, but to the to the jury, to the it makes me a person. 

 

Aaron Nelson  20:51  
Gives you some credibility. 

 

Matt Dodd  20:53  
I mean, it really does, and it allows them to relax. And if they relax, then I- this sounds terrible, but I can control them. 

 

Aaron Nelson  21:01  
Sure. 

 

Matt Dodd  21:01  
I can absolutely control where they're headed, better than if they're defensive and they're cautious and they're nervous.

 

Aaron Nelson  21:07  
And what's the- I think you just answered it, but in general, like, what's the benefit of control? There's, there's a purpose to control, other than to just be like "you're a controlling person".

 

Matt Dodd  21:16  
Oh, sure. I mean, look, you know, I've been objected to on cross and say, I've had prosecutors say "Mr. Dodd's testifying". I'm like, "Yeah, I am. 100%. It took you 10 years to figure that out, but that's exactly what I'm doing". Because when we're cross examining, it's- it's one more chance for us to tell our client's story. 

 

Aaron Nelson  21:34  
Sure. 

 

Matt Dodd  21:35  
I mean, we get to tell it in an opening. We sometimes get to tell it when we're selecting a jury, or we should be telling it. We could tell it in closing and on direct. When we're using our witnesses, we kind of know what the story is going to be, right, because there our witnesses and so we've heard their story, and we know that it aligns with our story. But when we're cross examining, it's one more opportunity to tell our story and not be locked into the story that the state wants to tell, that the Commonwealth wants to tell, that the federal government wants to tell. We're telling our client story through their witnesses. And if, if the witness is relaxed, if the witness feels like, "okay, I can talk to this person", or they just let their guard down, then it allows me, it gives me more control over that situation, so that I can tell the story I want to tell, not the story they thought they were coming up to tell.

 

Aaron Nelson  22:20  
Sure. And there's also, like you said, comfort, right? Because as we come there, I would imagine you've established your reputation amongst the professionals there in your community. But nevertheless, I'm guessing the cops kind of look at you, not necessarily side-eye, but like, what's Matt gonna do? 

 

Matt Dodd  22:37  
Oh, I mean, yeah. 

 

Aaron Nelson  22:38  
You know you're not- you're not. They're not necessarily willing right away to just be opened up. You ask them a question, and you can see their gears rolling like, do I give them the answer that I think I have to give them? Or is there some way that I can avoid this answer?

 

Matt Dodd  22:52  
Sure, and I love it when we put them in that box. All right? We paint, literally paint them into a corner. 

 

Aaron Nelson  22:57  
Yeah. 

 

Matt Dodd  22:57  
And you can give me the answer I want, or you can give me an answer that makes you look foolish. 

 

Aaron Nelson  23:00  
Yeah. 

 

Matt Dodd  23:01  
Either one I'm gonna win on. 

 

Aaron Nelson  23:02  
Sure. 

 

Matt Dodd  23:03  
But it'll be easier for you if you just go ahead and give me the answer I want.

 

Aaron Nelson  23:05  
And those are going to be different with you- with the times when we have either professional witnesses that just know it, they've been trained, they know how to do things, or oftentimes it's also professional witnesses, police officers, who this isn't your first time crossing them. You've, you know, you've crossed Barney five seven times now. This is time number eight, and he knows about the other seven times, good or bad for you.

 

Matt Dodd  23:29  
And in small towns like yours or mine, absolutely. 

 

Aaron Nelson  23:31  
Yeah. 

 

Matt Dodd  23:32  
Right. You have to repeat players, whether it's the cops, whether it's experts, you know.

 

Aaron Nelson  23:37  
And sometimes that can be helpful, right? I mean, they might know "I got to keep this tight, because I know Matt. I know he can punish me. I know he's going to not make me look bad if I just give him the answers"- 

 

Matt Dodd  23:49  
Yeah. 

 

Aaron Nelson  23:49  
"That I need to give him".

 

Matt Dodd  23:51  
The other thing is, I mean, if- there are times when it's okay to let your your adverse witness save a little bit of face. 

 

Aaron Nelson  23:57  
Yeah. 

 

Matt Dodd  23:57  
If there's ways you can give them to give an answer where they don't, their- their conception of themselves stays whole. They don't feel like they're betraying themselves. You know, they're, they're gonna be more apt to give you the answer you want to hear. They're gonna give you. They're not gonna fight with you, maybe quite as much. 

 

Aaron Nelson  24:14  
Sure. 

 

Matt Dodd  24:15  
And if you're still getting the facts you want, and that's what we're talking about, right? 

 

Aaron Nelson  24:18  
Yep. 

 

Matt Dodd  24:18  
If I'm gonna ask Barney "Hey, my guy's innocent, right?". They're gonna laugh at me. But if I ask a bunch of questions and I establish a bunch of facts, and I collect all those facts up and all those facts together to shout innocence, then great. They felt like they did right by themselves and their department and their prosecution. But I've got all the facts that I need that I can trot out on clothes and say, "folks, you heard from the cop, A, B and C and D. You heard everything. You know, that screams innocence". 

 

Aaron Nelson  24:49  
Yeah. And that's really that story-driven cross. 

 

Matt Dodd  24:52  
Yeah. 

 

Aaron Nelson  24:53  
I know recently, when you spoke at NACDL, it was on opening, which, to me, is just story, story-

 

Matt Dodd  24:59  
Oh, yeah. 

 

Aaron Nelson  25:00  
Story, right? But when we give that story an opening, we need to pull those facts out in cross in order to tell that story. 

 

Matt Dodd  25:09  
100%. Because, right, what is, I mean, your judges say the same as mine, everything you hear from the lawyer, that's not evidence. 

 

Aaron Nelson  25:14  
Yep. 

 

Matt Dodd  25:14  
That's argument. And you know, if you get that objection and opening, and I don't know there, there are some of those prosecutors that will object in your opening and the objection, you know that facts, not in evidence or some nonsense like that, you're like, Yeah, I'm gonna get there. Yeah, no shit. Like, we hadn't got to that point yet, but in cross we got to, we get to tell that story. We get to pull those facts out, and we get to have the the witness, confirm the story that we're telling.

 

Aaron Nelson  25:40  
Yeah, maybe you said this at in NACDL, but I've heard you say before, like, you look at your trial work and maybe cross-examination, right? But you look at your trial work as teaching. 

 

Matt Dodd  25:50  
That's exactly right. 

 

Aaron Nelson  25:51  
Yeah, tell me a little bit more about that.

 

Matt Dodd  25:53  
Yeah. So I mean, when we go in, typically the- this is our clients first time to tell their side of the story. Um, and we go second. They've already heard from the prosecutor, right? They've already heard the story, and it's usually a bad story. It's a story that's not helpful to our client. 

 

Aaron Nelson  26:10  
Yeah, if it was good for us, we wouldn't be here. 

 

Matt Dodd  26:12  
That's exactly right. But, I mean, even before we get to trial, we're teachers, right? We're trying to teach the prosecutor why this is a bad case to bring to trial. We're trying to teach the prosecutor why this is a case that should get settled or dismissed. We're trying to teach the judge, if we can't convince the prosecutor that this is a case that should never see the light of day, that should be dismissed, that should lead to suppression of evidence, that's what we're doing the whole way through, is we're teaching, excuse me, and we're persuading, but we're doing it by teaching right? I mean, if I just tell you my client's innocent... you know, I was talking to prosecutor the other day, and he's a newer guy and very nice young man, and he said, I really appreciate the emails you send because you tell me why I should dismiss the case. 

 

Aaron Nelson  26:53  
Yeah. 

 

Matt Dodd  26:54  
You don't just send an email that says this case should be dismissed. 

 

Aaron Nelson  26:57  
Your case sucks. Get rid of it. 

 

Matt Dodd  26:58  
Yeah. And I said, "people send you that?". And he's like, "yeah, all the time. And you know what I do with that? I delete it". But I send them a couple paragraphs and I'm saying, hey, you need to look at this piece of evidence. You need to look at this witness statement. You need to look at the conflict here, because when you do that, you'll see that what I'm asking for is actually pretty reasonable. It's not at all unreasonable that you give me this deal. 

 

Aaron Nelson  27:20  
Yeah. 

 

Matt Dodd  27:21  
Or that you give me this dismissal, that you treat my client the way he or she should be treated? 

 

Aaron Nelson  27:25  
Yeah. I mean, I've heard you say, we learn through facts, not conclusions. And you know, even, even when you're talking, you have a couple kids at home, right? 

 

Matt Dodd  27:34  
I do. 

 

Aaron Nelson  27:34  
I imagine there's sometimes that you're in a situation where it might be good for you if you teach your kids something,

 

Matt Dodd  27:41  
Yeah, 100%. I mean, my boy child is just as hard headed as he can be, and if I just tell him don't do that, you know, he's gonna ignore me about three quarters of the time. But if I tell him don't do that because of A, B, and C and D, you know, he might listen to me. 

 

Aaron Nelson  27:55  
Yeah. 

 

Matt Dodd  27:56  
Even we're skiing around, I say, don't jump off that cliff. You know, you're gonna hurt yourself. He said, "It's fine. I've done it before. It's not that big". And then I'll go poke around the landing, and I'll say, "well, there's rocks six inches below the surface. You hit those rocks, you're gonna rip your skis off, you're gonna cartwheeling in the distance. And there's trees down there you're probably gonna cartwheel into". And he's like, "oh, okay", and we had to do same thing with our jurors, right? 

 

Aaron Nelson  28:18  
Yeah. 

 

Matt Dodd  28:18  
I mean, it seems so self apparent to us that our client's innocent or that they should come back not guilty, and if we're doing our job well, I think we have convinced ourself wholeheartedly by the time we get to trial that- I don't even know how this got here, because that's how we have to, you know, if we don't believe it, then how are we gonna ever get anybody else to believe it? But they're not just gonna believe it when we say "not guilty". 

 

Aaron Nelson  28:39  
Correct. 

 

Matt Dodd  28:40  
We got to give them facts. And I talk a lot about this with judges in bench trials or in motions practice, I think judges kind of come in one of two ways. They either come in and they've already made their mind up because they read the briefing, and so, you know, you need to give them facts to change their mind- or if they're going to rule, for you, to then, you know, buttress their order. 

 

Aaron Nelson  29:02  
Yep. 

 

Matt Dodd  29:02  
Or if they come in and they're open minded, you know, the way we hope all judges are, then you got to give them facts to sway one way or the other, because they're not just going to take the fact that you're, you know, good looking, or you're put together and, you know, you're usually on time. 

 

Aaron Nelson  29:16  
Yeah, yeah. 

 

Matt Dodd  29:16  
They need facts to drive this. 

 

Aaron Nelson  29:18  
They need something more than a bow tie. 

 

Matt Dodd  29:20  
They need something more than a bow tie. That's exactly, right? 

 

Aaron Nelson  29:22  
Yeah, yeah. So these stories, right? We want to tell these stories. I think analytically, we think of them often as theory. So theory-driven cross-examination is one of the things that I know I've learned about in your- in your book and your dad's book, and in talking to you about it. Tell me a bit, and our listeners, what's theory-driven cross-examination?

 

Matt Dodd  29:43  
Yeah, so we talk about theory-driven cross or the narrative of cross-examination is just literally telling your story through your cross-examination. Telling your client story through the adverse witnesses. 

 

Aaron Nelson  29:57  
Okay? 

 

Matt Dodd  29:58  
Because in criminal cases, we- we might not have witnesses. The only witness we might call is our client, and a lot of times we don't want to call that person, because they're not going to help tell their story. 

 

Aaron Nelson  30:08  
Sure. 

 

Matt Dodd  30:08  
And we know that because oftentimes they've told their story, and their story led to handcuffs, their story led to an arrest, their story led to a prosecution, or at least the way they told their story. And so it's on us as as practitioners, it's on us as teachers to go in there and tell the story that our clients couldn't. 

 

Aaron Nelson  30:26  
Yeah. 

 

Matt Dodd  30:27  
For whatever reason, because they weren't articulate, because they weren't educated, because they didn't know how to tell their story, because they were scared.

 

Aaron Nelson  30:35  
So theory-driven cross is to get out our theory. 

 

Matt Dodd  30:39  
Yeah. 

 

Aaron Nelson  30:41  
But also about purpose? What- I mean, I've heard you use goal directed, right? I mean, are- 

 

Matt Dodd  30:46  
Yeah, absolutely. 

 

Aaron Nelson  30:47  
Are- there might be- you can't get your whole theory out with Barney Fife. You might need to also get it out with a different witness here or a different witness there.

 

Matt Dodd  30:55  
Yeah. So, what did you say earlier? Let's unpack this a little bit. 

 

Aaron Nelson  30:58  
Yeah. 

 

Matt Dodd  30:59  
So, and when we're talking about a theory, right, we're talking about the- the reason, that kind of the what, or sorry, the why, or the the how of- of our case. Why should the jury care? What can they do to help? How can they help? Why should they find our client not guilty in the criminal context? And we have to help them understand that. And if we can establish a theory, if we can, you know, and in criminal cases, theory is kind of easy at heart. My client's not guilty because... 

 

Aaron Nelson  31:31  
Yeah. 

 

Matt Dodd  31:31  
Fill in the blank and the part after the "because" is much harder. 

 

Aaron Nelson  31:35  
Yeah, right. 

 

Matt Dodd  31:36  
But once we figure out, "okay, that's why my client's not guilty. That's why the jury should rule this way. That's why the judge should suppress this piece of evidence". You know, whatever it is that we're looking to get accomplished, then we can figure out, "okay, who's going to tell that story now? How do I get those facts out?". And if we don't have our own witness, we have to do it through theirs.

 

Aaron Nelson  31:54  
Yeah, and there's certainly, you know, we don't need to get into the- the techniques, but, right... But that is what, what you're, you're- 

 

Matt Dodd  31:57  
That's what we teach. 

 

Aaron Nelson  32:04  
It's all about the techniques, about that, but it's driven by: what's the purpose? What is, again- 

 

Matt Dodd  32:10  
Yeah. 

 

Aaron Nelson  32:10  
The purpose of the theory, or the purpose of that witness, or the- or the narrative that we were wanting to tell.

 

Matt Dodd  32:15  
Yeah, and I think when we don't know that, it's really hard to then know how to cross examine. 

 

Aaron Nelson  32:18  
Sure. 

 

Matt Dodd  32:19  
So I remember helping a gentleman years ago out of Nevada and- and he said, "Hey, this is just kind of a regular car wreck case. It's not, you know, super complicated, but, and we're going to cross examine this person". I said, "Okay, great. What do you want to accomplish? What's your goal for this witness?". And they didn't, they didn't know. They didn't- and they said, "huh, I should probably figure that out". I was like, "Yeah, we need to know what we need to get or what we want to get out of that person before we then structure the cross". 

 

Aaron Nelson  32:46  
Yeah. 

 

Matt Dodd  32:47  
And so figuring out, like, you say in your example, like, all right, what- what's Barney going to tell us? What piece of the story is he going to tell us? 

 

Aaron Nelson  32:52  
Yep. 

 

Matt Dodd  32:53  
Because he's not going to the whole story. 

 

Aaron Nelson  32:54  
No. 

 

Matt Dodd  32:55  
He's going to, you know, maybe a lot of it, but maybe not all of it. 

 

Aaron Nelson  32:57  
Maybe not- not all the pieces. Absolutely. 

 

Matt Dodd  32:59  
And so we figure out: what's our goal for this witness?

 

Aaron Nelson  33:01  
And I know we can get again into some, some really "dial it down at the bottom end of the funnel" techniques, but even if we just say at the top end, right?Sometimes I've heard you use the term constructive cross, destructive cross. 

 

Matt Dodd  33:18  
Sure. 

 

Aaron Nelson  33:18  
Tell me about that. What maybe is a tactical choice in order to get some of those facts or what is that?

 

Matt Dodd  33:23  
Sure. So, when my dad, Roger and Larry Posner, who's also a big NACDL guy, started writing about this stuff in the 80s and then into the 90s, they talked about constructive and destructive cross-examination. We've, I think of all that even in the last 10-15 years, my dad and I, but destructive cross-examination is kind of what they taught us in law school. And so that for those of you who have been to law school, you'll remember, we're attacking their theory. We're attacking their witnesses, or undermining their theory, undermining their witnesses the whole time. That's what we're doing. We're trying to chip away at their- their case, their theory. And I think the problem is, while we're doing that we're focused on their theory. 

 

Aaron Nelson  34:02  
Sure. 

 

Matt Dodd  34:02  
We're not telling our client story. We're talking about their story. And I don't know that that's as helpful, right? Because now the jury has heard their story twice. 

 

Aaron Nelson  34:09  
Yeah. 

 

Matt Dodd  34:10  
Versus hearing an alternative theory or an alternative story, because often our theory is, it's- it's an alternative.

 

Aaron Nelson  34:19  
Absolutely, you need to present something up there, right?

 

Matt Dodd  34:21  
Something other than just "nuh-uh". 

 

Aaron Nelson  34:23  
Yeah. 

 

Matt Dodd  34:23  
Because not all is not a great argument strategy.

 

Aaron Nelson  34:27  
I think that's from "My Cousin Vinny", right? 

 

Matt Dodd  34:31  
Yeah. 

 

Aaron Nelson  34:31  
The beginning- "Everything he said, that guy said, is bullshit".

 

Matt Dodd  34:34  
Yeah, that's what we want to say, right? 

 

Aaron Nelson  34:36  
Absolutely. 

 

Matt Dodd  34:36  
That is a great movie, by the way, for you younger lawyers who haven't seen it, you should absolutely watch it. I make my mock trial kids watch it. I think they say "fuck", like 20 times, which I realized after a parent emailed me about their high school kid watching that movie. But it's- there's a lot of true to life in that movie.

 

Aaron Nelson  34:53  
So even just a- I know you, you do the whole gamut of defenses, of criminal defense, right? And I know you do some family law, but you also have a national reputation for your defense in DUI cases, OWI cases, drunk driving cases, and so I think of that in perhaps of: what are some simple facts in a everyday drunk driving case, field sobriety, that you're going to pull out like a constructive cross? Rather than: my client didn't do this, didn't do this, didn't do this. My client did something positive. 

 

Matt Dodd  35:26  
Sure. And so I think that's a great example you give us, Aaron. When you, when you teach in the negative, when you're talking about not or didn't do, it's hard- Nobody learns that that way, right? We learn by the positives, so we talk about all the good things our client did do. 

 

Aaron Nelson  35:39  
Yeah. 

 

Matt Dodd  35:40  
And so you can use the cop to talk about that. "Sir, you followed my client for five miles before you lit him up". "Yes, sir, I did". "And in that five miles he- he stayed in his lane". "Yes, he did". "He drove the speed limit". "Yes, he did". "Used his blinkers." "Yes he did". "Had his headlights on". "Yes, he did". "Car- No- His car was was the way it should be". "And when you turned on your blue lights, your red and blues, he immediately tapped his brakes, and that let you know that he knew you were there". 

 

Aaron Nelson  36:13  
Paying attention. 

 

Matt Dodd  36:14  
That's right. "It was a safe thing to do. It was the right thing to do. And when he pulled over, he pulled all the way off to the shoulder, and that was a safe thing to do. That was the right thing to do. It put you in a safe spot. Put your- the whole interaction in a safe spot". And you can really use the cop to build up your client. If you want to do it, you can even kind of turn into a contrast cross, where you start contrasting between what your client did and what drunk people do.

 

Aaron Nelson  36:41  
Absolutely, right? Because if you do it in the negative, you're really creating the picture of what drunk people do. 

 

Matt Dodd  36:46  
That's right. 

 

Aaron Nelson  36:47  
Yeah, my client, he didn't weave. But what do we as an audience see in our head?

 

Matt Dodd  36:52  
It's like when you go to the store, right? And you tell your kid, you're like, "don't ask for treats". That's the example my dad still gives. And I'm almost 50, and he still talks about it. I'd go to the store, and he'd be like, "Alright, we're here for steak. Don't ask for treats". And the first thing my brother and I would do is like, run to the candy aisle, because he said treats. I mean we were like little dogs. 

 

Aaron Nelson  37:11  
Absolutely, absolutely. 

 

Matt Dodd  37:12  
So yeah, I mean- 

 

Aaron Nelson  37:14  
"Go get some fruit" might be a better thing to say, right?

 

Matt Dodd  37:17  
Probably wouldn't have worked on us, but yeah... it probably would have been a better approach. 

 

Aaron Nelson  37:19  
Yeah. So, you know, when I- you know, obviously we're here at Sanctuary in the Jungle, right? And oftentimes cross-examination isn't something that I think most lawyers or even the public would think of as a sanctuary esque. How do you think, if at all, theory-driven cross, or constructive cross, helps with you to think of a sanctuary.

 

Matt Dodd  37:19  
Oh god, it's, it is the ultimate sanctuary for good lawyers. 

 

Aaron Nelson  37:19  
Okay? 

 

Matt Dodd  37:37  
And it's the ultimate sanctuary because I've got control. I have the microphone. I don't have to rely on anybody else besides myself, and that sounds very self-centered and kind of egotistical, but again, for you lawyers, think about this: When you have clients on direct, you're hoping they're going to say the right things, but we've all asked our client a question that we've prepped on dozens of times, like, "hey, what were you doing last Saturday?". And they're like "um". I mean, my dad still tells a story about his client who couldn't remember his name. And me personally, I remember I was helping a good friend on an adoption he and his wife had adopted a little baby, now a young man, and in Montana, you have to answer like, six questions to get adoptions. One was like, "How long have you been married to this person?". 

 

Aaron Nelson  38:36  
Okay. 

 

Matt Dodd  38:37  
And I asked him. I said, "All right, how long have you been married to so and so?". And he looked everywhere in the courtroom, but at me. And his wife points at her ring from the table. And I guess she had his their wedding date inscribed on the inside of the band, so he would never forget. And so he literally had to slide it off. And he's like, "oh, you know, 14 years". And so even though we- I literally sat at his kitchen table the night before prepping that question, saying, hey, there's five questions you have to answer. That's it. And he's awesome, and he's really smart, but in the moment, he couldn't get those words out. 

 

Aaron Nelson  39:14  
Sure. 

 

Matt Dodd  39:15  
And on cross, I don't have to count on the witness to know anything. 

 

Aaron Nelson  39:18  
Make it easy for the witness. 

 

Matt Dodd  39:19  
That's exactly right. You know what they need to know how to do? They need know how to say yes. And I'll tell you what. I was at a lecture 5 or 10 years ago, and I was going to cross a cop for a demo, a former cop, and we prepped a little bit, and he got sick and couldn't make it, and so the organizer scrambling, and she turns and says, "Hey, you were a cop for a long time". And he said, "Actually, I was a officer of the Royal Canadian Mounted Police, but yeah". And "can you do this thing for Dodd?". And he said, "Yeah, that's fine". And she said, "Do y'all need a room to go prep?". And he said, "No, I don't need to know anything. Dodd's gonna tell me all the facts. I need to know my job. So say yes". And I was like, "he's right. We're gonna get along great". But that's right, right? We're up there testifying, and so it is a sanctuary because I can rely on the prep that I've done. I can rely on all the hard work I've done. I can rely on my knowledge of the theory. I can rely on myself. And I don't have to count on the witness to know the facts. I don't have to count on the witness, whether it's mine or an adverse witness, to give me the facts I want. 

 

Aaron Nelson  40:06  
Sure. 

 

Matt Dodd  40:06  
Because I've chosen the facts that I'm going to present. 

 

Aaron Nelson  40:19  
And you know the way that you've asked the question, they're going to say, yes. 

 

Matt Dodd  40:23  
Well, and I know the way that I've prepped the story to tell. I get to structure the story, the way I organize my chapters, the way I organize is the pieces, the way I organize the pieces of my cross, so I can bring the story out. Maybe not, and, you know, typically, typically, prosecutors will tell their story from start to finish, just the traditional method, chronological method. 

 

Aaron Nelson  40:47  
Yep, linear, very, just- 

 

Matt Dodd  40:48  
Very linear. And oftentimes linear or chronological method is not good for our clients because it makes them look real guilty. 

 

Aaron Nelson  40:54  
Yep. 

 

Matt Dodd  40:55  
And so I don't want to start there. 

 

Aaron Nelson  40:57  
Yeah. 

 

Matt Dodd  40:57  
At the beginning. I might want to start where the cop finds the gun in somebody else's hand. 

 

Aaron Nelson  41:00  
Absolutely. 

 

Matt Dodd  41:01  
Or what do you tell me that case you had where the drugs were in somebody else's bra? 

 

Aaron Nelson  41:06  
Yeah. 

 

Matt Dodd  41:07  
That's a great place for the drugs to be, not my client's pocket. They were in the driver's bra. 

 

Aaron Nelson  41:11  
Yep, exactly. 

 

Matt Dodd  41:12  
I might start there on cross, because that's a really good fact for me, and we get to do that on cross. I don't have to rely on the way anybody else tells the story? 

 

Aaron Nelson  41:21  
Yeah. 

 

Matt Dodd  41:22  
I get to tell my client's story the way I want it to be told.

 

Aaron Nelson  41:26  
A good friend of mine, Jessa Nicholson, who was working on the case that the three of us were working on together and I she passed, but one of the things that before she died, that she'd taught me, is to really think about things in a structure of "before, during, after". And it's really changed the way I've practiced because I rarely, if ever, tell the story "before, during, after", but it's exactly like you say, sometimes I start with the after, sometimes I start with the before. Sometimes I don't talk about the during at all. 

 

Matt Dodd  41:59  
Because during is not real good for our clients. 

 

Aaron Nelson  42:02  
The during might not be the best, right. 

 

Matt Dodd  42:04  
During is kind of messy. 

 

Aaron Nelson  42:05  
Yeah, right. But there's a lot that you can do with how you set up your cross in that sanctuary where you're going to decide, here's what I'm asking you about right now.

 

Matt Dodd  42:14  
Sure, absolutely. And look, you're going to get drug outside that sanctuary I mean, 100% of the time, I don't care how good you are at cross, you're going to get thrown curve balls. But if you prep and you've worked hard and you know your theory, and you know where you need to be- 

 

Aaron Nelson  42:28  
Yep. 

 

Matt Dodd  42:29  
You know that goal that you asked me about before for that witness, then that's okay. If I take a hit, that's fine. I can ski over here a little bit, and I'll swing back when I need to be, because I know generally, I'm heading down towards the lodge. 

 

Aaron Nelson  42:39  
Yeah. 

 

Matt Dodd  42:40  
And that's easy.

 

Aaron Nelson  42:42  
Sometimes you're going to avoid the icy patches. Sometimes- 

 

Matt Dodd  42:45  
Sometimes you're going to hit them. That's okay. 

 

Aaron Nelson  42:46  
Yeah. 

 

Matt Dodd  42:46  
As long as you know your theory, cross becomes a lot easier. As long as you know your goal for your witness, cross becomes easier. Now, you know, what we talk about, and what I teach a lot on is, is how to do that. You know, here's some tools that when you hit that icy patch, you can keep moving. 

 

Aaron Nelson  43:01  
Yeah. 

 

Matt Dodd  43:01  
You know, it's not going to throw you. Here's the things you can do ahead of the time, tune your skis. You can get your, you know, your physical, right? You go to the gym. You spend your time putting your time in the same way we do on, you know, lawyering, right? 

 

Aaron Nelson  43:13  
Yep. 

 

Matt Dodd  43:14  
Spend time learning your theory. You spend time drafting your cross. I don't think I'm so fast that I can come in there and just cross off the cuff. I can and I do it okay, but-

 

Aaron Nelson  43:23  
Not as good as if you prepared. 

 

Matt Dodd  43:24  
Nope. 

 

Aaron Nelson  43:25  
Never. 

 

Matt Dodd  43:25  
100% of the time. No.

 

Aaron Nelson  43:27  
Yeah.

 

Matt Dodd  43:27  
You know, I can be faster in the moment if I've done a lot of prep. I can be faster on the ski hill if I've skied that run 1000 times. I know where the trees are. I don't have to think; I can just move.

 

Aaron Nelson  43:37  
You've had a- you've- have a vision of the route, but you also know alternative routes, if you need to get- if you get into trouble.

 

Matt Dodd  43:44  
That's right. And so it doesn't mean I write every question out. It doesn't mean I write every word of every question out, but sometimes I do. 

 

Aaron Nelson  43:44  
Yeah. 

 

Matt Dodd  43:46  
You know, I put state- when I coach for other people, I'll sometimes put stage notes into the crosses that I draft for other people, because I'll get hired sometimes to draft cross.

 

Aaron Nelson  43:58  
Tell me about those stage notes.

 

Matt Dodd  44:00  
So, when we're asking questions, you know, there are times you're going to draw an objection. You're pushing right up to the line, and that's okay. You know, my dad still talks about being, you know, the- an objection is just being like, "hey, he ran out of balance". Don't mean the game's over. 

 

Aaron Nelson  44:13  
Yeah. 

 

Matt Dodd  44:13  
It just means you got to start again. And you're a soccer coach, right? 

 

Aaron Nelson  44:16  
Yep. 

 

Matt Dodd  44:16  
Ball goes out, you throw the damn thing back in. 

 

Aaron Nelson  44:18  
Yeah. 

 

Matt Dodd  44:18  
Then you keep playing. 

 

Aaron Nelson  44:18  
It's a free flowing game. 

 

Matt Dodd  44:19  
That's right. And sometimes you draw the objection, right? Sometimes you draw that, sometimes you throw it out so that you can, you know, get caught back up, whatever it is, but, you know- and so when I'm when I'm helping other people draft cross, I'll say, "Hey, you're going to draw an objection here". So when that happens, move to this and grab this book or feign surprise, you know, and so we're baiting that objection, just like I might kick the ball out on defense just to let your rest of your team get back to the ball. And so when I'm doing that, I might write in stage notes, or if I want the cross examiner that I'm helping to really intimidate a cop, for instance. And we're talking about the field sobriety test. You know, there's a 400 page, 500 page manual. 

 

Aaron Nelson  45:06  
Yep. 

 

Matt Dodd  45:06  
You know who's read that? Not the cop. 

 

Aaron Nelson  45:08  
You have. 

 

Matt Dodd  45:08  
Yeah, I have. Not since they went to the academy 20 years ago. And so I might write in there: move to the book, pick the book up. And so they pick it up and start waving it around. And then after, you kind of train them with it, after you've hit them on the nose with that book once or twice- 

 

Aaron Nelson  45:22  
Sure.

 

Matt Dodd  45:23  
Then all you got to do is kind of move towards the book. 

 

Aaron Nelson  45:24  
Yeah. 

 

Matt Dodd  45:24  
And then say, Mr. Dodd, if you're telling me it's in there, I'll believe you. Say "you sure?". "I believe you, Mr. Dodd". "Okay". Now the cop has just given me credibility. Now the cop has told everybody in the courtroom that I'm somebody who's believable. I'm somebody they can count on. I'm somebody who's not going to mislead them. 

 

Aaron Nelson  45:40  
Correct. And if you're looking to the jury to say, this is the guy who's going to guide us through the mountains, they're looking at you, Matt.

 

Matt Dodd  45:46  
That's exactly right. I mean, you talked about that. You know, I had a case while ago, and in closing argument, there was a fact that I thought was very, very important, and the prosecutor was trying to diminish that fact. But anyhow, she lost sight of that fact in the middle of her close, and turned to me and said, "such and such?". Like asked me a question in the middle of her closing. 

 

Aaron Nelson  46:10  
Oh, wonderful. 

 

Matt Dodd  46:11  
And I said loud enough for the entire panel to hear. 

 

Aaron Nelson  46:13  
Beautiful. 

 

Matt Dodd  46:14  
"Actually, it was such and such". 

 

Aaron Nelson  46:17  
Beautiful. 

 

Matt Dodd  46:18  
I was feeling pretty good of myself, good about myself, right up until the point they came back guilty. 

 

Aaron Nelson  46:23  
Yeah. Sometimes, sometimes even good lawyering can't get around bad facts.

 

Matt Dodd  46:28  
But you know, and that's what we're trying to do, right? We talk about teaching, we talk about guiding. We want the jury, or we want the judge to know that we're somebody they can trust, that the facts that we're presenting are the true facts, the accurate facts, the unvarnished facts.

 

Aaron Nelson  46:42  
Yeah, I've heard you talk about that in the in the kind of going back to- to teaching through facts, right? Teaching through it is- and this is perhaps different than how it was when your- when your dad was doing it, right? But you're giving the facts to the jury to empower them to make your arguments for you in- in deliberations. 

 

Matt Dodd  47:02  
Yeah. 

 

Aaron Nelson  47:02  
Tell me about that.

 

Matt Dodd  47:03  
No, I think it's one of the things I learned from my dad actually. 

 

Aaron Nelson  47:05  
Okay. 

 

Matt Dodd  47:08  
If you just pound on the table, "innocent, innocent, innocent", and you know, that's maybe one way to do it, maybe not the most effective way, because if, if you commence 2 out of that 12, then they're just going to go back there and say "innocent, innocent, innocent". And that's not enough. If you, on the other hand, empower them, if you give them facts, you give them ammunition, so when they're back there, they can say, "Well, what about this? What about that? What about this? You heard the cops say these four things. You heard the cops say the the weed was in that other person's bra. You heard the cop say that other guy had the gun". 

 

Aaron Nelson  47:38  
Yeah. 

 

Matt Dodd  47:39  
They then have things to argue on your behalf. Because, I mean, you know how it is, Aaron. You don't get to go back there and argue that.

 

Aaron Nelson  47:45  
No, you don't. No, you don't. 

 

Matt Dodd  47:48  
You know, for lawyers, and I don't- criminal lawyers do it some. Plaintiff's lawyers did a bunch. They use focus groups. 

 

Aaron Nelson  47:53  
Yep. 

 

Matt Dodd  47:54  
And y'all might do that in your practice.

 

Aaron Nelson  47:56  
Done it a couple of times. Not as much as I should. 

 

Matt Dodd  47:59  
You know, but if you put jurors in that situation, then you can see behind the curtain a little bit. 

 

Aaron Nelson  48:03  
Yeah. 

 

Matt Dodd  48:03  
You can get a sense of what they're thinking about, what resonates, what didn't.

 

Aaron Nelson  48:09  
If you're enjoying this episode so far, be sure to also check out Matt's book "Cross Examination for Depositions". Matt's book includes plenty of examples from criminal cases and gives you a chance to dive deeper into some of the techniques we've talked about. I've taught workshops on cross examination for over a decade, and I've noticed that many lawyers still have difficulty constructing their chapters in a way that establishes the facts and feelings of their story. When we're in cross, we have to help the jury hear, understand, and feel the story. Mastering the chapter method is the best way to do that. If you want to get better at cross, you need to learn the chapter method, and this book puts you on the path to mastery. 

 

Aaron Nelson  48:57  
And you'd said, I know we talked a little bit about before, but just you know, to be there and to be your sincere self. And it seems perhaps I'm getting to be an old curmudgeony man here, but it seems like sincerity is a- is a lost attribute, certainly in the courtroom.

 

Matt Dodd  49:13  
Yeah, maybe so. I mean, look, right, it's a little bit of performance. But I always tell my clients, you're not going to see me change a whole lot when I get the courtroom. I'll get a little more excited, a little more animated, little louder. 

 

Aaron Nelson  49:24  
Yeah. 

 

Matt Dodd  49:25  
But not a whole lot different beyond that, because they expect to see like the TV lawyer come out, right?

 

Aaron Nelson  49:31  
They expect, I think I've heard you tell a story about where your client expected you to eviscerate, eviscerate the witness that was going to cross. Can you tell us about that?

 

Matt Dodd  49:40  
Yeah, so this was a deposition a number of years ago, very contentious case. They had been at it for a couple of years at that point, and when we went for, I think the depot lasted like six hours. It was an all day depot and- but it never got ugly. It never got, you know, super adversarial. I mean, the adverse witness, she was a little mean to me, but I never really jumped on her much and- but what I had was, you know, a 200 page transcript that was full of admissions. Really useful admissions. 

 

Aaron Nelson  50:12  
All those facts that you were- 

 

Matt Dodd  50:13  
Facts that I needed. 

 

Aaron Nelson  50:14  
Yeah. 

 

Matt Dodd  50:15  
And the other lawyer recognized it. And I know that they recognized it because they were taking notes furiously the whole deposition. But the witness never realized it, and at the end of the depot, she looks across table, my client says, "Is that what it feels like to be eviscerated?". And I was like, "What the hell was that about?". So I walk out. I'm like, "Hey, man, what the shit was that?". And he's like, "I might have texted her last night and told her my lawyer is going to eviscerate her today". And I was like, "Well, shit. Why would you do that?". He's like, "Well, you know...". Didn't give a satisfactory answer, but whatever, it's fine. The point was that she thought she was winning this exchange all day, when really she was giving me facts that, you know, all the facts I needed. I got every admission I wanted. 

 

Aaron Nelson  50:55  
Sure. 

 

Matt Dodd  50:56  
And I see the same thing in my criminal cases, cops think that they're not giving you anything. You know, I remember talking to a cop a number of years ago. He was a very nice man. He and I get along now. We didn't get along for a couple of years after this cross, but it was right when the "Me Too" Movement was kicking off. And he had stopped my client, who was a young, 19 year old woman, and accused her of driving drunk, and he asked her said, "Ma'am, will you do these field sobriety tests? We do these roadside tests". And she said, "No, sir, my dad told me not to ever do them. I'm going to decline". And she was real polite and real respectful, and he talked her into it. And what we learned was that this young woman had left a Halloween party because she'd been sexually harassed by somebody. So she's already feeling kind of small. She just wants to get home. 

 

Aaron Nelson  51:45  
He was a man in authority. 

 

Matt Dodd  51:46  
It's 20 degrees in Montana. It's snowing outside. She has a costume on that was a little more revealing. And so she's cold and she's scared and it's dark, and there's this guy with a badge, a gun, and a cage. And again, he's super nice. He's the nicest guy, but he persuaded her to do this. And so we talked about it a little bit on cross, and I said, "No, sir, you know what the "Me Too" movement is?". "I do". "And you understand that consent is a real big issue, and that's something we're grappling with right now as a society?". "Yeah". "And sir, you've heard the saying that no means no?". "I have". "And you believe that?". "Absolutely, and if a woman told you no, you- you don't- you'd respect that?". "Well, I would". "Well, no you didn't, in this case". And we went down that path, and before he realized where we were, he was no backing down at that point. He was stuck there. 

 

Aaron Nelson  52:34  
Yeah, yeah. 

 

Matt Dodd  52:34  
And I saw the red come up in his face, and he knew where we were headed at that point, but it's too late. He was committed and I was committed, and we got all the facts we wanted that she had said no, and he didn't take no for an answer, and he kept pushing her, and he had a badge and he had a gun, and he had a cage in the back of his car, and she's dressed in a way that wasn't very warm, and it was snowing, and it was cold, and she was scared, and he kept going till she said yes, and well-

 

Aaron Nelson  53:02  
That's not always okay. 

 

Matt Dodd  53:03  
Yeah. 

 

Aaron Nelson  53:04  
That's rarely okay, if ever okay.

 

Matt Dodd  53:06  
And again, I lost. The judge did not suppress all the evidence, shockingly. But you know, we were able to do that because we were talking about people we- and people were talking about those universal truths. We were talking about things that he did, believed, and thought he held true. 

 

Aaron Nelson  53:23  
Yeah. 

 

Matt Dodd  53:24  
And yeah, just talking to folks and doing a way that was non-adversarial, just like with that evisceration. I did eviscerate her, just not loudly or overtly.

 

Aaron Nelson  53:37  
What's the saying about 1000 cuts?

 

Matt Dodd  53:39  
Yeah, I got everything I needed. 

 

Aaron Nelson  53:41  
Yeah. 

 

Matt Dodd  53:41  
And it took me a little while to- to get my client to understand that. 

 

Aaron Nelson  53:45  
Sure. 

 

Matt Dodd  53:47  
But I mean, that's what's so beneficial, and that's what's- that's so beneficial about constructive cross. You don't have to have the best witness. You just, you can use their witnesses, and you can turn it on its head.

 

Aaron Nelson  54:01  
And oftentimes in those situations, what I love about your story here, about the cross of the officer, is you're pushing past the paper. This is- that cross wasn't developed by anything that you're going to see on that police report. Right? Those are universal truths that you brought because of your knowledge, your lifetime experience. You're just being aware of the world. How do other human beings see the world? And how does this witness want to be seen? 

 

Matt Dodd  54:29  
Yeah. 

 

Aaron Nelson  54:30  
And you took all of that with what you had on the paper. 

 

Matt Dodd  54:33  
Yeah. 

 

Aaron Nelson  54:33  
But you would have never got there if you didn't push past the paper. 

 

Matt Dodd  54:37  
Yeah. Well, you got to, you know, got to be ourselves. And I think universal truths, like you said, that's- that's so important. Rick Friedman, you know, wonderful plaintiff's lawyer. 

 

Aaron Nelson  54:45  
Yeah. 

 

Matt Dodd  54:46  
Gives a lot of his time. He's just crushing on those roundup cases right now all over the country and- but beyond that, he's just a very good lawyer. And one of his books, "Rules of the Road", they use it in the plaintiff's context, that you're framing your case based on the rules of the road. 

 

Aaron Nelson  55:03  
Sure. 

 

Matt Dodd  55:04  
How to- how your client should have been protected and wasn't, or how the- the defendants didn't do the things they were supposed to. But, we can do that in the criminal side all day long. And yeah, we talk about universal truth and fairness, the probably the most universal truth.

 

Aaron Nelson  55:17  
Absolutely and oftentimes, fairness: we can debate about it, but the prosecution is somebody that maybe has their version of it, and they can't see any other version of it, but their version isn't always the same as the 12 people in the community. 

 

Matt Dodd  55:30  
Yeah. And so, you're right, knowing your community, knowing, you know, not just being in your office, being out in the world a little bit- 

 

Aaron Nelson  55:38  
Yeah. 

 

Matt Dodd  55:38  
Is important.

 

Aaron Nelson  55:39  
What are some other rules? Just, I love the the thought of "Rules of the Road", right? And how we can do that. I've tried to do that often with with experts, right? Let's set up some rules for the expert, because I'm not going to cross the- not going to cross the expert in their own field. 

 

Matt Dodd  55:55  
Sure. 

 

Aaron Nelson  55:55  
You know they know more about that. But I might have some other rules about about bias, or I might have some other rules about fairness, or I might have some other rules about, just, thoroughness. What are some other rules that, just in general, maybe you apply sometimes with, either in criminal defense cases or in particular DUI cases?

 

Matt Dodd  56:13  
Well, and I think you can, you can use their experts for your benefit. And so one of the ways, big picture way, I'll suggest is this: use their expert to get out the favorable facts to your case, and then you can, you can contrast, or contrast, the admitted facts versus their conclusion. 

 

Aaron Nelson  56:32  
Okay. 

 

Matt Dodd  56:32  
Because they're never going to back off their conclusion, right? 

 

Aaron Nelson  56:34  
Yeah, yeah. 

 

Matt Dodd  56:35  
Just like a cop's never gonna say, "Well, Mr. Nelson, in retrospect, I think your client is innocent". 

 

Aaron Nelson  56:39  
Yeah. 

 

Matt Dodd  56:39  
"They didn't drive drunk", but they have to admit that, you know, they did this safely; they did that safely. They gave the license when they were asked. They got out of the car when they were asked. They did all these things on the field sobriety test right. They have to admit those facts.

 

Aaron Nelson  56:52  
He walked here right. He walked here correctly. 

 

Matt Dodd  56:53  
That's exactly right. 

 

Aaron Nelson  56:54  
He stood up this way, sat down this way. 

 

Matt Dodd  56:56  
100% and witnesses, in any case, whether it's criminal, civil or- or family, they have to do the same thing. They have to admit facts or they lose credibility, and they're happy to admit those facts because they're- they're going to trot out their conclusion whenever they can. That's what they're paid to do. And you're never going to get them off their conclusion. 

 

Aaron Nelson  57:11  
No. 

 

Matt Dodd  57:12  
Because if you get them off their conclusion, then they don't have work the next day, then they can't feed their family. I mean, that's idiotic to think you're going to, you're going to change their their view. 

 

Aaron Nelson  57:20  
Yeah. 

 

Matt Dodd  57:20  
You know, it doesn't happen like that. But they're going to give you favorable facts that you can then use against them. Now, in terms of- of using those "Rules of the Road", I think it's easier than people think. And here's what I mean when I say that, if you're looking at an economist, for instance, they have a stack of letters after their name. If you go look at the organizations that the stacks of letters came from, whether it's PhD or whatever it might be, there's usually rules. 

 

Aaron Nelson  57:44  
Absolutely. 

 

Matt Dodd  57:44  
There's either ethical rules or there's rules for how they do evaluation and forensic work. There's rules that either the lab puts out or that APHIS, you know, one of the organizations American forensic toxicology, I forget. But there's- look at, just look at the rules that govern their organizations that come with the letters they have after their name. 

 

Aaron Nelson  58:04  
Yeah. 

 

Matt Dodd  58:05  
Just at a local level. You know, I pull the policies and procedures from our local crime lab. They just recently sent out a brochure to all the law enforcement agencies that say, for instance, blood tubes should have this much blood in them. And I had a public defender call me and said, "Hey, there's only half that amount of blood", but she hadn't seen that paper. I said, "well, then use this damn paper against them". 

 

Aaron Nelson  58:24  
Yeah, yeah. 

 

Matt Dodd  58:25  
If they're out there publishing- they will only do it if it's got this much blood, and then they do it anyhow. Well, that's a problem.

 

Aaron Nelson  58:31  
Principles aren't principles, if you only follow them when they're convenient.

 

Matt Dodd  58:34  
That's right, so use their own rules against them. Because, you know, people in government like rules. They like handbooks. They like manuals. 

 

Aaron Nelson  58:41  
Yeah. 

 

Matt Dodd  58:41  
You have to spend time getting into their manuals, getting into their rule books. And if you got to fight for them in discovery, then fight for them. 

 

Aaron Nelson  58:41  
And you can find some of the rules very specific, like you just talked about, like, a certain level within, within a tube. But there's also, I know, I found some, some success, perhaps, in looking at their policies and procedures. When it gets to really high concept, you know, like, police have an ethical duty to protect the innocent. Yeah, there's a lot you can do with the duty to protect the innocent when your client is presumed innocent. 

 

Matt Dodd  59:13  
And that's what you talk about with this universal truth, that's probably, that's- I'm absolutely going to take that one, too. 

 

Aaron Nelson  59:17  
Yeah. 

 

Matt Dodd  59:18  
I mean, that's right.

 

Aaron Nelson  59:19  
You can, all of a sudden, you build the theme off of something that they weren't expected. And of course, they're gonna, they're gonna want to agree with it, because you're reasonable, you're being fair. And they're gonna want to look, they're gonna want to, of course, say, "Yes, I agree with protecting the innocent". Who's gonna disagree with that? 

 

Matt Dodd  59:34  
I mean, that's a great way to lead off on your cross, right? Especially on a constructive cross. 

 

Aaron Nelson  59:38  
Yeah.

 

Matt Dodd  59:38  
Because who's gonna say no to that? And if they say "no", well, have a field day.

 

Aaron Nelson  59:42  
Oh yeah, you've got, you got your flow chart, and you- it's rare that they're going to go there, but you've, you've got it loaded up if, if they do. 

 

Aaron Nelson  59:50  
Let's talk about that a little bit. You know, connecting with the client and kind of some of the motivations for the work that we do, right? I mean, you said growing up, you got to see your dad help people. Is that- why are you here? Why do you do the work that you do?

 

Matt Dodd  59:55  
I mean, I still really do, like helping people. 

 

Aaron Nelson  1:00:09  
Okay. 

 

Matt Dodd  1:00:10  
I think that's really important. And I think if we're going to do this, almost a job, it's, I think it's more than a job, it's a profession. I don't know that I have the calling, maybe, like some folks do, but I have the power to help people. The power to right some wrongs and to help people through this. And it's good. It feels good. I mean, and you know- 

 

Aaron Nelson  1:00:29  
Yeah. 

 

Matt Dodd  1:00:29  
The ego side of me really likes that. People come to me for advice and want my help, and I know my family will laugh at that, but yeah, I like being the guy who knows the answer. 

 

Aaron Nelson  1:00:29  
Well, at the end of the day, who amongst us doesn't want to feel competent? 

 

Matt Dodd  1:00:35  
Yeah. 

 

Aaron Nelson  1:00:36  
Right? And, you know, I mean, that's a, that's a real big thing in everybody's life.

 

Matt Dodd  1:00:46  
Yeah. I mean, I own my ego on that, but I mean, I like being able to help people. When things have gone wrong- just, it was what, two days ago? I was in court and a woman came up and judge said, "Where's your lawyer?". And she said, "I'm not sure judge". And he said he looked at his thing and said, "Well, I excused you, but I didn't excuse your lawyer. Thank you for being here. And he looked at his paper again and said, This is the second time he's been gone". And she said, "I know". And he said, "Where's this case going?". And he was not happy. He turned to the prosecutor, and about this point, I realized what's going on, so I stand up, and this judge knows me, and he's very respectful of the system. And he said, "Mr. Dodd, you want to give her a hand?". I said, "Judge, I'm happy to. Can I have a quick recess?". And I walked out and talked to her and kind of figured out what's going on. 

 

Aaron Nelson  1:01:29  
Yeah. 

 

Matt Dodd  1:01:29  
I said, "All right, let me go talk to the prosecutor", and walked back in. And he said, "Look, if she'll just do this, I'll dismiss it all". And I said, "all of it?". And he said, "Yeah, I want to be done with it". I said, "No problem". I walked back out and said, "you got this piece of paper, right?". And she said, "well, not with me". And I said, "where is it?". She said, "it's in my car". I was like, "go get it". 

 

Aaron Nelson  1:01:46  
Yeah, exactly. 

 

Matt Dodd  1:01:47  
We walked back in and we got it worked out. And, you know, we walk out and I give her my card and said, "Hey, if you need anything, just give me a call and I'll let your lawyer know what happened, so that everything's cool". And she said, "thanks. This was a really nice Christmas gift. I've been dealing with this for almost two years". 

 

Aaron Nelson  1:02:01  
Oh. 

 

Matt Dodd  1:02:01  
You know, it didn't, I didn't make any money. It didn't, didn't cost me anything, though, and I got to help this person that just- she was in the jungle. She was lost.  She needed some help. And like you talk about, that is my sanctuary. It's easy, and you're literally sitting in pews, just waiting. All I had to do is stand up. That's all it took a stand up and walk to the bar. And- 

 

Aaron Nelson  1:02:02  
Had you not-

 

Matt Dodd  1:02:04  
Judge gave me an opportunity. 

 

Aaron Nelson  1:02:10  
Yeah, and had you not, you'd have watched an injustice occur. 

 

Matt Dodd  1:02:24  
100% and I mean,  they'd have sent this poor woman home. 

 

Aaron Nelson  1:02:28  
Yeah. 

 

Matt Dodd  1:02:28  
Another two months, no, nothing happening. And and the prosecutor's willing to dismiss. And the- it just hadn't happened yet. 

 

Aaron Nelson  1:02:36  
Sure. 

 

Matt Dodd  1:02:37  
And that's I got chewed out by a couple lawyers on the NACDL website the other day, listserve. 

 

Aaron Nelson  1:02:44  
That'll happen. 

 

Matt Dodd  1:02:44  
So I want to tell the story, because I've been waiting for the right moment. This is the right moment. 

 

Aaron Nelson  1:02:47  
Yeah, absolutely. Tell me. 

 

Matt Dodd  1:02:48  
So I had another situation like that come up, and I live in a little small county, so the judges know me, and they'll let me kind of help from time to time. 

 

Aaron Nelson  1:02:55  
All right. 

 

Matt Dodd  1:02:55  
Same kind of thing. And, and I walked out and the prosecutor said, "hey, just do this and we'll do this". And, and, and I walked out and said, "Hey, thanks, man. I really appreciate it". And he's a good prosecutor and a reasonable, fair person. 

 

Aaron Nelson  1:03:07  
Sure. 

 

Matt Dodd  1:03:08  
And so I put a note out to the listserv that just said, "thank your prosecutors", figuring it would get people to look at it. 

 

Aaron Nelson  1:03:14  
Yeah, yeah. 

 

Matt Dodd  1:03:14  
And I said, "here's why you should thank your prosecutors. Not all of them do right, and not all of them want to help our clients, but there are ones that want to do right, there are ones that want to help, and when they do that, they do that, they need to be reminded that they did something good in the world". 

 

Aaron Nelson  1:03:25  
Absolutely. 

 

Matt Dodd  1:03:26  
"And that we are thankful for that. We recognize that and say thank you to them". And so I do that. I talked to an AUSA yesterday, and she went out of her way to call me on her vacation, like over the Thanksgiving holiday, because she wasn't on email, but she saw my thing come through. And I said, "Hey, I appreciate it". She said, "for what?". I said, "for being a decent person". And I think it's really important for us to remind those of us on the other side of the bar that, you know, their job, they have an ethical duty to do right. When they do, thank them for it. 

 

Aaron Nelson  1:03:55  
Absolutely. 

 

Matt Dodd  1:03:56  
And most people said, you know, "I appreciate that". But I had a couple people say, "all prosecutors are assholes, and this, that, and the other"- 

 

Aaron Nelson  1:04:02  
That's their duty. They need to do that anyway. Why should should we even thank them for doing their job?

 

Matt Dodd  1:04:05  
That's exactly what somebody had said. 

 

Aaron Nelson  1:04:07  
Yeah. But the reality is, is, I mean, I don't know if they- I'm sure they have them. But, you know, my wife was involved in treatment courts here. She was, she was helped formulate and start up the treatment court. She was on the state treatment courts. She's won awards within treatment courts. She's just been really into that, that in what she's told me through that, and I've learned not nearly as much as her, is that you need to reward the behavior that you want. 

 

Matt Dodd  1:04:33  
Yeah. 

 

Aaron Nelson  1:04:33  
It's- and that's so much of what we do, right? We're trying to prevent punishment. 

 

Matt Dodd  1:04:37  
Yeah. 

 

Aaron Nelson  1:04:37  
Because I'm saying, look, punishment doesn't work. Positive works. 

 

Matt Dodd  1:04:41  
That's right. 

 

Aaron Nelson  1:04:42  
Right? If that's what we how we want it with our clients, why wouldn't we model the exact same thing with the behavior of our- of the prosecutors? 

 

Matt Dodd  1:04:50  
Yeah, right. 

 

Aaron Nelson  1:04:50  
And I'm sure if there's any prosecutors watching this and they've ever dealt with me, they'd be laughing at me saying that, because I'm- I'm- I'm, I need to do that more. I will admit that- that I appreciate that reminder.

 

Matt Dodd  1:05:03  
I've heard you're willing to throw hand grenades from time to time. 

 

Aaron Nelson  1:05:05  
I've- I've burned some bridges in my- every now and then and I, but I can do better, you know. And there's nothing wrong with appreciating good work.

 

Matt Dodd  1:05:14  
No, and look, and there are times to throw hand grenades. Like we fight against the government all day, every day. We get told "no" a lot. We get people that, that won't even take the time to listen to our client's story. They say, "What case number?". I say, "No, no, no, this isn't a case number. This is about a person, not just a case". 

 

Aaron Nelson  1:05:31  
Yeah, absolutely. 

 

Matt Dodd  1:05:32  
Let me tell you about my client, the person.

 

Aaron Nelson  1:05:35  
Yeah, right. I heard, you know, you don't want to- oftentimes, prosecutors will maybe put our clients in a box. 

 

Matt Dodd  1:05:42  
Yeah. 

 

Aaron Nelson  1:05:42  
I've heard you say that, right? Or how I think of it is they'll see us, see our clients almost as two dimensional. Just words on a piece of paper, as opposed to this living, breathing, complicated, complex human that has all of those feelings that you talked about. Love, hate, anger, all of this other stuff. How do we- is it just as simple as you give them facts?

 

Matt Dodd  1:06:03  
I think you got to tell the story, and you have to find time. You know, I talked about technology being great, that it brings us together, but it can also drive us apart. And it's easy to shoot an email off, it's easy to just leave a voicemail. It's harder to get in your car, drive across town, get on the prosecutor's schedule, wait in the waiting room, then go talk to him and sit across the desk from him.  

 

Aaron Nelson  1:06:24  
Sure. 

 

Matt Dodd  1:06:25  
And I try and make time to do that. I learned that from my dad 100 years ago. And try and do it whenever I can, especially when I'm in new counties, especially when I'm from a new judge or a new prosecutor. Who was I talking to about this? You know, maybe it's even you. Aaron. The judges are- they have their little courthouse families, right? 

Aaron Nelson  1:06:43  
Yeah. 

Matt Dodd  1:06:43  
And we walk in and they've been hanging out the prosecutor all day, and not ex parte anything. I'm not cast any aspersions at all, but they just have a different relationship, because they get to hang out with those people all day. 

 

Aaron Nelson  1:06:55  
Yeah. 

 

Matt Dodd  1:06:56  
And we're given the judges, judges- anything about this particular prosecutor, any anything about their office. Here are the rules. Here's what needs to happen. 

 

Aaron Nelson  1:07:04  
Yeah. 

 

Matt Dodd  1:07:04  
And it gives them something to stand on and feel good about. But it's not personal. It's not that this person did anything wrong or this person did something better. It's: here's the system we've set up and I believe wholeheartedly in  the system, so that's what we're going to do.

 

Aaron Nelson  1:07:15  
Yeah. You know, for- for me, when I think of sanctuary, it really comes to that place, right? And so I've had some successes when I- a jury comes into my sanctuary, right? Because I almost think, sure it's the judge's courtroom, but the judge isn't the main player. Most of the time in a criminal- in a criminal trial, the criminal defense attorney is probably the person that talks the most.

 

Matt Dodd  1:07:40  
Sure. 

 

Aaron Nelson  1:07:40  
Right? Because the- if you're, I think if you're doing it right, because you have more draft, or you have more crosses, you have more everything else. You're the one that's almost in control. And so it's like, "This is my place". 

 

Matt Dodd  1:07:51  
Yeah. 

 

Aaron Nelson  1:07:51  
And then you have a guest coming in, and you get to set up the sanctuary for the guest. Here's the rules in this house. You take off your shoes at the entryway. Whatever your rules are, but, and that's how I try to set it up, but it's very different for me, and maybe it's not for you, for when I go into the judge's house and the judge is the fact finder, the judge is the arbitrator, because now he's the one that's like or she, you know, in my neck of the woods, mostly it's he's, that's their house. And so for me to come in and say, "you don't have the right rules here", or "you need to change your rules", I struggle with that. To try to do it in a way that's not me judging or telling them that they're doing it wrong. And so how are you able to find success? Southern charm...? When you come in with the judges?

 

Matt Dodd  1:08:42  
I think that only goes so far. 

 

Aaron Nelson  1:08:43  
Yeah. 

 

Matt Dodd  1:08:44  
I think it's waning the older I get look. I think you can empower your judges. You can empower them because- well, let me start here. In Montana, we have non-lawyer judges. So we have some judges in our Justice Courts, and even our municipal courts, which are our lower level misdemeanor courts, may not have a judicial background or a legal background at all. They might have come from a walk of life completely different. And I think it works because they basically, or mostly want to do what's fair, right? We talked about that. And so we have to empower them to do what's fair. We have to teach them, "here's how you do fair. Here's the rules that give you the permission to be fair". 

 

Aaron Nelson  1:08:44  
Yeah. 

 

Matt Dodd  1:08:45  
Even with lawyers, or sorry, even with judges who are lawyers in their past lives, or who've been to law school or been judges for decades, they can still learn something new. And so if you can teach them a new case, if you can give them the tools that they get you there, or, even better, give them the facts that get them there. 

 

Aaron Nelson  1:09:43  
Yeah. 

 

Matt Dodd  1:09:43  
Right? Because the judges who know the law, you've got your criminal judges, right, who know it cold. 

 

Aaron Nelson  1:09:47  
Yeah, absolutely. 

 

Matt Dodd  1:09:48  
Someone might have literally written books on it. 

 

Aaron Nelson  1:09:49  
Sure. Some of the smartest people we know are the judges. 

 

Matt Dodd  1:09:52  
That's right. And so if you're not necessarily going to teach them anything new in the law, but if you can teach them about your client, if you can empower them to want to help your client, and we do that factually, right? We bring up witnesses. We have good, constructive crosses. We use the evidence that we got to the best of our ability, you know? Then we're giving them permission. We're giving them the way to get there. If they want to do what's right, they'll find a way. We just need to give them permission or give them the tools to get there. 

 

Aaron Nelson  1:10:18  
Sense of fairness runs through them, just as it does everybody else.

 

Matt Dodd  1:10:21  
You know, you sure hope so. And I know there are lawyers, judges, everybody that aren't fair, at least don't have the same, I don't know, barometer is not the right word... or maybe compass of fairness that we do, but-

 

Aaron Nelson  1:10:33  
They might measure it in a different way. 

 

Matt Dodd  1:10:35  
Yeah. 

 

Aaron Nelson  1:10:35  
Have other values, but you know, you have to find that. I think that's, you know, some of the other guests have just, you like, find what's important for that judge and see how you can, you can use it in that way.

 

Matt Dodd  1:10:46  
Yeah, I think creating your credibility is important, too. 

 

Aaron Nelson  1:10:48  
Yeah. 

 

Matt Dodd  1:10:49  
There are judges that know that I'm, you know, never going to mislead them. I won't offer them any bad facts, but if I'm asked it, I'll always tell the truth. And I think we should all be doing that, but you and I both know that there- that that little bit of respect can go a long way with the judge.

 

Aaron Nelson  1:11:05  
Oh, you know, I know you've- you were sharing before, but just how important decency right to just walk the path. I've heard you say the "walk the path". In this world that we do in criminal defense, there's so many opportunities for us to feel angry, you know, because we've suffered from an injustice. From our client to feel angry because they've suffered from an injustice, and we've witnessed it. How have you managed to continue to be decent in those circumstances and walk the path when you're witnessing sometimes these injustices, or what you might think of as an unfairness?

 

Matt Dodd  1:11:44  
Oh, I think my wife, Ashley, has probably been the best about reminding me to be a decent person, to be better than I was, to- particularly since we had kids. You know, if you show them that that's what they're going to do. If you want to, if you want to do better, you need to show them better. 

 

Aaron Nelson  1:11:57  
Yeah. 

 

Matt Dodd  1:11:58  
And remind me that, okay, that's what needs to happen. And you start training yourself, and then it becomes habit, and then it becomes who you are. I've gotten better as I've gotten a little older, about slowing down and taking time to check in with courthouse staff, and, you know, checking on things. And, I mean, we it's when I was brand new, my daughter was in Girl Scouts, so I bought a bunch of boxes of Girl Scout Cookies. I'm like, What am I gonna do with all these damn things? And so I just dropped a bunch of them off the courthouse. And I dropped them off, I think, like, I forget January or sometime when it had been months since anybody had a Girl Scout cookie. So I was a hero for like, four hours. And so then I realized, oh. So now we buy like, 400 boxes of Girl Scout Cookies. 

 

Aaron Nelson  1:12:24  
This works. 

 

Matt Dodd  1:12:27  
And we drop them off to say thank you. And it's way below the limits of gifts you're allowed to give. 

 

Aaron Nelson  1:12:46  
Yeah.  

 

Matt Dodd  1:12:46  
And it's something just thoughtful and easy. 

 

Aaron Nelson  1:12:48  
Yeah, you're thinking of them. 

 

Matt Dodd  1:12:48  
And it is, but it's or just being nice to them, yeah, I mean, honest to God, being nice to them and treating them like a person. Because I see criminal defenders that don't. I see prosecutors that don't. I see random public that doesn't. I see lawyers that don't. And look, these people are just doing their job, raising their families, trying to do right by their their people, and they didn't bring your client here. And yeah, they might have screwed something up. And yeah, they might not- they may have not understood that, or the other thing. But typically it's not from a bad place. And if you're just nice to him and say, "Thank you", that goes a long damn way.

 

Aaron Nelson  1:13:26  
Yeah, we think of, you know, I think of, at least, I shouldn't project it on everyone. I think of it as empowering the jury, right? We talk about empowering the jury, and it's normally, maybe we're empowering the people that maybe it's not hierarchical, but are beneath us to get more power. But sometimes the judge has the most power, sometimes the prosecutor, but you still need to empower them to be their better selves is what I hear you saying.

 

Matt Dodd  1:13:50  
Yeah. I mean, my dad told me this years and years and years ago, the trial doesn't go without court clerk there. Judge can be there, jury can be there. If the clerk in there, we ain't going. 

 

Aaron Nelson  1:14:00  
Yeah. 

 

Matt Dodd  1:14:01  
And so whenever the clerk comes in, and I'm sure you've had this happen, all the lawyers start standing up, and they're like, "it's just me". And like, "nah, just me". Like, "Caitlin, we don't go, if you're not here, like, if the records not going, we're not going. We're just all sitting here waiting". 

 

Aaron Nelson  1:14:14  
Yeah, yeah. 

 

Matt Dodd  1:14:15  
"So you are important, and you know, you do play a role in this", and I think that's important, not just because we are humans and need to treat other people right, because I think we're missing that these days... Even if we don't agree with everything, we can still treat people like people. But- and again, I got this from my dad: who do you think the judges talk to when they go back in the chambers? They talk to their clerks, they talk to the bailiffs, they talk to court staff. And if court staff says Mr. Dodd's an asshole, which they might have said about me, and I'm almost certain they said about my dad from time to time, you know, the judge isn't gonna be happy. If they say, "well, he treated me nice", or "he always treats me nice", or- the judges just see that. I think that goes a long way when you're trying to get a judge to go with you or give you the benefit of the doubt. 

 

Aaron Nelson  1:15:00  
Yeah. 

 

Matt Dodd  1:15:00  
Even on like, a little issue, like a revocation issue, where it's not necessarily going to be determinative, but if your client gets the benefit of the doubt because you acted right, oh, shoot, that's great. 

 

Aaron Nelson  1:15:12  
Yeah. 

 

Matt Dodd  1:15:12  
If they don't get the benefit out because you were a jerk, then you hadn't done right by yourself or your client.

 

Aaron Nelson  1:15:18  
Yeah, we've talked about it on here before, just how important it is to just model the behavior you want to see in the courtroom. If I want them to treat my client with decency, treat my client with respect, I damn well better be doing it to everybody else that's in there.

 

Matt Dodd  1:15:30  
No, that's exactly right. I mean, you have to, right. 

 

Aaron Nelson  1:15:33  
Yeah. 

 

Matt Dodd  1:15:33  
And it's hard we, I mean, we all act the part from time to time. 

 

Aaron Nelson  1:15:36  
Yeah, it's hard. 

 

Matt Dodd  1:15:37  
But- but for you know, we would be the criminal defendants.

 

Aaron Nelson  1:15:41  
Yeah, no, no doubt. Well, you've, you've certainly walked in the path. I think you've, you've demonstrated that throughout your career, throughout all your teaching, throughout your life, and certainly today. So thank you so much for- for making the connection, coming all this way, standing up, showing up. Thanks for coming to the santuary. 

 

Matt Dodd  1:15:59  
Yeah. I sure appreciate it. Thank you for having me, Aaron. 

 

Aaron Nelson  1:16:01  
Yeah. 

 

Matt Dodd  1:16:01  
I appreciate it. 

 

Aaron Nelson  1:16:01  
Abolutely.

 

Aaron Nelson  1:16:11  
Thanks for listening to Sanctuary in the Jungle. This episode was brought to you by Nelson Defense Group and MadeDaily. Subscribe to Sanctuary now and never miss another episode. You can also sign up for our newsletter on our website and follow us on social media for new bonus content. We'll see you next time at the library for another episode. Until then, stay strong and carry the hope.