Michele Lavigne| Episode 01

Michele Lavigne  0:00  
The telling the story part was always easy. The harder part, I think, for all of us, is finding out what it is.

 

Aaron Nelson  0:17  
Hello. Welcome to Sanctuary in the Jungle. I'm your host. Aaron Nelson, I'm excited to be here today. It's our first episode, and it's our first guest professor, Michele Levigne. Professor Levigne led the public defender clinical program at UW Law School for well over 25 years. Before that, she was a public defender here in the state of Wisconsin. Back in 1995, I was a young student in her class. She inspired me, motivated me, and taught me pretty much everything I now know when it comes to defending humans in a court of law. She's a zealous advocate. Always has been, and inspires everybody that she's in contact with. So, I hope you enjoy this conversation and without further ado, Professor Lavigne.

 

Well, welcome. Thanks for coming and joining me here today Michele.

 

Michele Lavigne  1:08  
Thanks for asking me.

 

Aaron Nelson  1:10  
So, I have today my favorite guest, my former law professor from UW Law School back in the 90s. We were both a little younger then. So tell me about yourself, Michele. You were with the University back in the in the 90s? Tell me about that.

 

Michele Lavigne  1:27  
Well, I started as a public defender. I started actually in Eau Claire for a couple years, then went to Madison, and then an opportunity to do a lot of the same work, but at the law school came up and I jumped.

 

Aaron Nelson  1:40  
When did you start that?

 

Michele Lavigne  1:44  
'89. I started in '89 I mean, I, you know, my mother was a teacher. My mother was a middle school math teacher for 50 years, so I guess I come by it honestly. 

 

Aaron Nelson  1:53  
There you go.

 

Michele Lavigne  1:54  
Yeah. And I, you know, got the opportunity and within a year or two, then the public defender project came up, and I was in charge of that. It was, they just, it was a natural fit.

 

Aaron Nelson  2:05  
So you were at the you were at the law school, doing typical law school things before you ran the clinic.

 

Michele Lavigne  2:12  
Law school things I was doing. It was legal assistance to institutional persons. So it was just straight up, one on one, clinical supervision. Then up came this opportunity. Boy, was it '91 maybe? ...To do this and start working back with the public defender's office. And it was a nice fit, and it felt good for me to be home.

 

Aaron Nelson  2:31  
Yeah, well, and that's how I met you. That was a foundation of my career, of just some of the values that I still hold today, the lawyer that I want to be, some friendships that I have. It was so meaningful to me. So tell me about what is it? What is the program that you ran there at UW?

 

Michele Lavigne  2:50  
Well, it was called the Public Defender project, and what it was, was that we found a way to combine classroom work and placement in public defenders offices. So, what I like to tell people is, people say, "Well, what do you teach?" And I'd say, "I teach people how to be public defenders". That really was it. There was some work on sort of the defense function in general, but it really was geared at, how do you be a public defender? How do how do you do this? You know, as a bit, how do you defend as a basic matter? How do you defend indigent populations? How do you do that? How are you when you're a volume dealer, which is what a public defender is. How do you do that? So we dealt with some of the philosophical issues, the practical issues. We certainly worked on trial, skills, motions. I mean, we worked it. We worked it hard. I mean, you probably remember. You know, I am Mrs. Levine's daughter. I had no problem saying, oh, yeah, get it done.

 

Aaron Nelson  3:49  
Yeah, absolutely. No, I, I distinctly remember, I think it was, I was trying to give a performance in a closing argument, or something like that. It was an OWI case. I think there was a refusal involved, and I didn't know that there was a jury instruction involved, and I was taken to task for that, and I always remember it. And now, one of the first things that I do in every case absolutely, is I'm like, go look at the jury instructions. Go look at the jury instructions. It's all about the jury instructions. So that was formative for me. So before that you were working in a public defender's office in northern Wisconsin? Well, not northern to you and I, but to the rest of the world. 

 

Michele Lavigne  4:28  
To the rest of the world it was northern, it was northern Wisconsin. So I was in Eau Claire for two years, and it was when the public defender's office Trial Division started. I am a charter member of this Wisconsin State Public Defender Trial Division.

 

Aaron Nelson  4:39  
Yeah, I know. I know you recently participated in another program together with me where we were talking about Dave Niblack and some of the other legends from that time. So tell me about the formation of the public defender's office in Wisconsin.

 

Michele Lavigne  4:53  
Now I went to law school in DC, so I, one day, I looked up at the placement board and it said the Wisconsin State Public Defender is starting its office. Do you want to interview? So I certainly signed right up for an interview. Can I be honest? I had a boyfriend who went to college at UW Madison, and I thought, oh, that sounds like a nice place. Sure. That sounds like a nice place. And I signed up and here's what I remember: the person I interviewed was then, I think the, I think he might have been the second in command at the at the public defender's office as it was coming into existence. He was so nice. Even the person in charge of the placement office said "that's one of the nicest people I've ever met in my life".

 

Aaron Nelson  5:37  
The person that you met with first.

 

Michele Lavigne  5:38  
Yes, in DC. So months go by because, you know, when you're in law school and you're applying for a job, it takes forever. And, you know, I get an interview out here with Howard Eisenberg. The Howard Eisen. Famous name in Wisconsin. He became the, ultimately became the dean of Marquette Law School. And I tell people, oh, hun, I was, I was hired by Howard Eisenberg. I mean, if I want to show my real bonafide days and age. I was vetted. I was vetted hard, and ended up getting the job and they put me up in Eau Claire. Okay, now I'm going to tell you the truth. At that time, it might as well have been Mars to me. You know I heard of Eau Claire. I get up there, there was one other woman attorney.

 

Aaron Nelson  6:23  
In the office, or just in general? One other-

 

Michele Lavigne  6:26  
Oh no. In the county. And there was one woman attorney in Chippewa County. And then I also went over to Dunn and there was a woman judge. Yeah, Donna Musa, but that was it.

 

Aaron Nelson  6:26  
We practiced, Liesel and I both practice in front of Donna Mesa. She was Liesel's got a wonderful story about Judge Musa was like, in labor for six hours while the jury was deliberating. But of course she like-

 

Michele Lavigne  6:51  
Yeah, you know, fine, whatever. But you know, you learn and and, you know, I actually liked it. I practiced primarily in Chippewa County.

 

Aaron Nelson  7:00  
Okay. 

 

Michele Lavigne  7:01  
I learned so much about how a system actually operates and the important importance of interpersonal skills.

 

Aaron Nelson  7:09  
Tell me more about what do you mean by interpersonal skills. 

 

Michele Lavigne  7:12  
That you know I had to be able to talk to the sheriff. I had to be able to talk to the DNR Warden. I had to be able to convince people, because it was a small system, and if I came in just wanting to be a hard head, I wasn't going to get anywhere. 

 

Aaron Nelson  7:28  
Sure. 

 

Michele Lavigne  7:28  
But at the same time, I needed them to understand I meant business, and when I tried a case, I was going to try a case. When I filed a motion and litigated the motion, I meant it. And it was, it was learning to walk that funny little line.

 

Aaron Nelson  7:44  
I... 30 years I'm still trying to figure out how to walk that line.

Michele Lavigne  7:47  
It's hard, but I learned so much about, really, about how you do that. In Chippewa County, there were two judges-

 

Aaron Nelson  7:55  
Well, tell me more, because that is so... for me, you know, as you know, my wife, Liesl was a longtime public defender, and I've been in private practice my whole time. And we like to joke that, you know, I just go into a place and, like, pee in the pool and screw it up for everybody else, but, like, I do what I want. I don't have to have those necessarily interpersonal skills that somebody who's there every day and to try to balance that, you know on either side. Liesl figured that out. You figured that out. What are some things that helped you to do that, to still be the zealous advocate that you need to be at time, at all the time?

 

Michele Lavigne  8:34  
It's a, it's a weird kind of a mindfulness where you're, who is this human that I'm dealing with, and I can be perfectly pleasant, although there were some people I was not pleasant with. 

 

Aaron Nelson  8:45  
Sure. 

 

Michele Lavigne  8:46  
Because on a day to day basis, I've got to see you. On a day to day basis, you've got a job to do. I've got a job to do. I've got a job to do. 

 

Aaron Nelson  9:00  
It's not a one off relationship. 

 

Michele Lavigne  9:00  
No, it's every single day. And you're trying to find that sweet spot where, if it's on the margins or if it's a close call, they'll give you a break.

 

Aaron Nelson  9:01  
Okay. 

 

Michele Lavigne  9:09  
At the same time, you want them to give you a break, because they know you mean business, and well, we're going to try this case, and odds are good, I could win.

 

Aaron Nelson  9:28  
It's not personal. It's not this, it's just-

 

Michele Lavigne  9:30  
No, it's not this, and that's part of it is. It is when you establish that relationship, you make it not personal.

 

Aaron Nelson  9:38  
Sure. 

 

Michele Lavigne  9:38  
It's understood, that's what you do.

 

Aaron Nelson  9:41  
And maybe this is as good a time as any to dive into it. You know, obviously our job, the job that you had, and the job that you taught me to do, is we're defending human. And sometimes the people in power treat our clients, the people that maybe we've grown to love and care for, they treat them harshly. And it's, I have a really hard time not taking that personal, not responding in some way because of some emotion that that comes up of how they do that.

 

Michele Lavigne  10:11  
It's, I think you have to take it personally, and I think you have to respond non personally. 

 

Aaron Nelson  10:17  
Tell me more about that.

 

Michele Lavigne  10:19  
You have to, I can say, well... you know me long enough to know, I'm, you know, I will naturally drop an F bomb. 

 

Aaron Nelson  10:30  
Sure you're a truth teller.

 

Michele Lavigne  10:31  
At any opportunity, I don't get to drop an F-bomb in court. I don't get to, I don't get to. I get to show my outrage by controlled use. This is where I'm really paying attention. What language are you using? What's the what's the, what, what's your vocabulary? What, are they sensing the steel in your voice? If they know you well enough, they're gonna know, you know, she's got veins popping in her neck, 

 

Aaron Nelson  10:56  
Okay. 

 

Michele Lavigne  10:57  
But she's not. I'm not. I'm not going to be found in contempt. I'm going to, I want, because in the end, it isn't about me and my ego and my feelings. And if I can change your mind by letting you see that, I mean this with all my heart, and I'm now going to lay out the 19 reasons why you're wrong and why that guy sitting over at that table is wrong. And I do it, I win.

 

Aaron Nelson  11:23  
I mean, I appreciate that, we now, you talk about it in a way that seems natural, right? You've been doing this for a long time. You've had experience, you've taught it, you've thought about it. You're intentional. Where does that come from for you? Where do you think that that ability to like, when you say almost like distance, you know, it's, you feel it personally, but you don't express it personally. Is that something you learn from your mother or the teacher, your father, somewhere else in the family?

 

Michele Lavigne  11:53  
Boy, where does that come from? I mean, that's a, it's a skill. It takes an extraordinary amount of, I think, of just attention to what am I doing,

 

Aaron Nelson  12:05  
Insight, I mean, of reflection.

 

Michele Lavigne  12:07  
Reflection. And it's like, it's a, it's an act of double, really, double observation. It's like, here's how I'm feeling, this is the reason I'm feeling this way, and now here's how I'm presenting it. Because, because the real truth, how I really feel, isn't going to help anybody. It's not, and it's, it's, it's work, it's to me, that was the hardest thing. It is absolutely the hardest thing is walking that tightrope. 

 

Aaron Nelson  12:38  
Sure. 

 

Michele Lavigne  12:39  
Because I don't want to be unfeeling. I don't want it to be just, well, this is just a cognitive function. I don't want it to be, you know, aren't I the smartest person in the courtroom? 

 

Aaron Nelson  12:48  
Sure. 

 

Michele Lavigne  12:49  
That does nobody any good. The truth is, emotion sells. It does. 

 

Aaron Nelson  12:55  
Yeah. 

 

Michele Lavigne  12:56  
But I have to, with it, I have to couple it with some reasoned, persuasive arguments that are held up by my emotion. I have to and if you, because, if you don't, one of two things happen, you're either just, you know, a screaming lunatic. And I will admit, there's been a few times when I just got there, you know, the pencil goes down and goes flying across the room.

 

Aaron Nelson  13:21  
Who amongst us hasn't?

 

Michele Lavigne  13:23  
I've done that. At the same time. It's like, look, I'm not a law machine. 

 

Aaron Nelson  13:28  
Yes. 

 

Michele Lavigne  13:29  
I'm not, you know, I'm not one of the Wisconsin reporters. You know, 115 Wisconsin, second 35, I'm not that. I'm not that. And I'm appealing to somebody. I don't care who the judge is. Anybody who's the judge, any human being with half a soul has got to be moved by emotion.

 

Aaron Nelson  13:52  
So obviously, we're talking about communication here, right? Tell me about how that, I think what we're talking about is performance. I know you have a lot about communication on the language side, but just how much is this performance part of communication? And I, it's, maybe talk a little bit about that. Is it, do you, would you use the word performance or would you use a different word?

 

Michele Lavigne  14:16  
I don't like performance because it it suggests something fake.

 

Aaron Nelson  14:21  
Sure. 

 

Michele Lavigne  14:21  
Whereas, if you say, how am I today? I'm about to present. I must be confident. Not? I must look confident. No, I am confident. I have become confident right now. And that everything is then driven by how I am today. All right? I am angry today. I am hurt. I'm feeling like this guy's getting the shaft. All right. I have to get that across with real feeling. I want them to know that what I think and what I'm feeling is real, that I don't act, I don't play act.

 

Aaron Nelson  15:01  
That comes across, as you said, not just in your the word choices, but in the volume and the tone, in the delivery, in the pace.

 

Michele Lavigne  15:11  
Everything, everything. Okay, I'm going to tell you two great compliments that I got. One was from a judge. I don't know where we were... somewhere. And he said, "Do you know what your reputation is?" And I said, "No". And he said, "that you care". It's like, yeah, that's good.

 

Aaron Nelson  15:34  
Yeah, I'll take that, right? 

 

Michele Lavigne  15:36  
Yes, years, years, years, years, years, years, years later, I was at a retirement party for actually somebody in the DAs office. And I had been at the law school a long time, but there was a clerk for Judge Northrop who had to had since died. But there, there was Joe Gregory. And I just looked at her, and I said, "Joe Gregory, Michele Levigne". And she said, "You, you made us think of things in ways we never thought of before". Yes!

 

Aaron Nelson  16:02  
Wow. 

 

Michele Lavigne  16:03  
Yes.  

 

Aaron Nelson  16:04  
Wow. 

 

Michele Lavigne  16:04  
And her son was standing there, and he said, "I've never heard my mother give a compliment like that. Can I buy you a drink?" Yes you can, 'cause I'll take that. So, yeah, yeah, that. It's that, if it comes from what you really think and who you really are. 

 

Aaron Nelson  16:22  
Yeah, so that's, I mean, that's a good place for me, like, the caring, you know, like, why did you choose to do this job? Why did you choose to say, I want to go and defend people who are accused of wrong that maybe the rest of the world doesn't like. That are, why did you pick this?

 

Michele Lavigne  16:43  
Well, I mean, let me say I went to law school figuring I'd be some kind of legal aid lawyer from the beginning. I mean-

 

Aaron Nelson  16:49  
Really?

 

Michele Lavigne  16:49  
After my, after my, first year of law school, I got, I got an internship in a legal aid clinic in Anacostia. And if you know anything about DC, you know it was, it was down past, I had to ride the bus past St. Elizabeth's Hospital.

 

Aaron Nelson  17:03  
Okay.

 

Michele Lavigne  17:03  
And I'm thinking, "oh, I love this". And because it was about the clients. In the end, I was about the clients. Um, I did more of that in my second year. Did, you know-

 

Michele Lavigne  17:11  
Well, what did you love about that? When you say you loved it about the client? I mean, what-

 

Michele Lavigne  17:16  
Just, I wanted to know their stories. I love the clients.

 

Aaron Nelson  17:21  
It's like, almost, you know, maybe you, you know this. There's the, you know, the maybe it's apocryphalic story, about Mr. Rogers that he had a, had a note in his wallet that said, you know, any, you can love anybody, once you know their story.

 

Michele Lavigne  17:35  
It's true. It's true. I mean, which isn't to say, I love everybody. I don't. And it isn't true that, you know, that, you know, I would walk out of a meeting with a client, and, you know, believe me, I could, you know, let it rip. But it's like, it's, it's there, and my job was to find out. So I envisioned that I was doing that. Well, then my third year, I'd been told we had these, this program called DC Law Students in Court. And somebody had said, do the criminal side... y,ou get into court much more than the civil side. I said, yeah, okay, I'll go do that. I mean criminal law, the way it was taught at GW, was just dry and it didn't mean anything, and it wasn't, wasn't particularly appealing one way or another. It was like, yeah, fine. It's another class. I go into this clinic, and I remember going into lock up, and did the lock up in DC, and I thought, well, I'm home. I loved it. 

 

Aaron Nelson  18:34  
Really?

 

Michele Lavigne  18:35  
Loved it. And that's how I met Dave Niblat, because he's been one of the supervising attorneys in this law school, in this program. And he comes in, and we heard, you know, story after story about him, because one of his one of his mentees was with, was my direct supervisor. And in comes Dave, and I don't know if you've ever seen any pictures of him, but honestly, what he looked like was an insurance agent. He came in. He had a comb over, a bad comb over. He wore, you know, these polyester short sleeve shirts and a tie and these police shoes that were shined to, you know, the spit shine. And in comes this man-oh, and the black plastic glasses, you know, of course. And in he comes, and we're going, huh? And he stands up, and he just looks around, and he said, "your job is to stand between your client and the vicious sons of bitches that want to do them harm". I thought, ah, yes, this was it. I loved it. I loved it. I loved, you know, the clients were great. I mean, DC Superior Court at that time was just, it could get a little wild and skeezy, and it was great. 

 

Aaron Nelson  19:56  
And the, you know. Keith, I think, has described it before. Keith Belzer has described it, you know, that as criminal defense attorneys, we're maybe on a continuum. You know, there's kind of this social worker one side of it, and there's the warrior side. And I'm sure we all float back and forth along that. Where would you put yourself on that continuum?

 

Michele Lavigne  20:19  
Boy, that's a good question. Probably over more on the warrior side. 

 

Aaron Nelson  20:27  
Yeah. 

 

Michele Lavigne  20:28  
But I got a lot of social work in my backpack.

 

Aaron Nelson  20:31  
Yeah. No, absolutely, absolutely. I mean, so that's what I was thinking. I mean, you, you're clearly, obviously, you know, as people said, you care, right? But I get the tone, and I always got the the anti-authority, the fight, the power. Yeah, you know, there's, there's that from you. Fair?

 

Michele Lavigne  20:51  
Very fair. That power.

 

Aaron Nelson  20:54  
Where's that? I mean, is that something again, were you involved in protest? Was your, were your parents? Is that something that was just kind of natural for you to to pick the underdog?

 

Michele Lavigne  21:03  
I think I always was, you know, kind of an underdog gal. 

 

Aaron Nelson  21:06  
Okay. 

 

Michele Lavigne  21:07  
I mean, honestly, I suppose a little of it is, you know, so I went to a social justice Catholic high school, you know. You had to be out there. You had to join one of these two organizations that was about making people's lives better. That was just, that was a demand, yeah. And, you know, back at that time, it was... so I graduated from high school in 1970. And so you can picture what was going on back at that time. 

 

Aaron Nelson  21:34  
I can't. I wasn't born yet. 

 

Michele Lavigne  21:35  
Yeah, no, you can't. You're right. It was, it was quite the time, let me say, but, but you do start to understand the power. I mean, Richard Nixon was president. It wasn't until lately that we started to come up against something that could give that man a run for his money. And you start to understand, no, power is not necessarily good. 

 

Aaron Nelson  21:59  
Sure, sure. I mean, yeah, that's the late '60s there. You're a teenager, and early '70s-

 

Michele Lavigne  22:06  
You know, you're so right. I mean, so 1970 Kent State. 1968 you got assassinations going wild. You're like, what in the Sam Hill's going on? So you start, that really struck a hard match of, "oh, wait, this is how the world is". So then I go to college, and I don't really know, but then as a political science major, what do political science majors do? They go to law school. Duh.

 

Aaron Nelson  22:31  
That's where I went. 

 

Aaron Nelson  22:32  
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Michele Lavigne  23:36  
And I, you know, and when I go to, when I got to law school... I mean, GW is actually a pretty corporate kind of a law school, but I was-

 

Aaron Nelson  23:44  
I'm beginning to wonder if they all are Michele. 

 

Michele Lavigne  23:46  
Well, yeah, you might be right. But they had, I don't know. I just, I knew I wanted to represent clients, and in fact, one of my, you know, out of, one of my job interviews my third year was for a big state legal services organization. And they were like, "Well, why do you want to do this?" I want to represent people. I want to represent people. Well, we're really concerned about impact, right? You know, litigation. Where would you, you know, where would you fit? I said, I want to represent clients. 

 

Aaron Nelson  24:19  
What about this wasn't clear?

 

Michele Lavigne  24:21  
I'm about the clients. I'm about the clients. And I was about the clients. 

 

Aaron Nelson  24:26  
Do you, so you're there to, you know, like, I think a lot of us, you want to help people, you want to care, right? And I think we all know, or at least you and I do, and people in my office, about how important is to tell their story. And I love that part of my job, but there's this, also just weight of like, in responsibility, of like telling another person's story, and like finding the balance between that. I'm, I'm always, you know, I'm surrounding myself by people to help me figure out that balance. Did you at any time find it like, just, tell me about that weight of carrying somebody else's story and telling their story? Was that easy for you? Was that hard for you? Did that you struggle with that at all?

 

Michele Lavigne  25:18  
At the risk of, I suppose, sounding like a jerk, I mean, telling the story part was always easy.

 

Aaron Nelson  25:23  
Okay.

 

Michele Lavigne  25:26  
But the harder part, I think, for all of us, is finding out what it is. 

 

Aaron Nelson  25:30  
Oh, absolutely. 

 

Michele Lavigne  25:31  
Those are not that easy to get out. You have to have, you know, we were talking about communication. And here's where genuine, hardball communication skills (that we do a terrible job of teaching, let me say) really come in. Because if I need to know your story; I need to go in after it. And I need to figure out: how do I get with you? How do I get on the same plane with you that you're comfortable telling me your story, that you even can figure out your story yourself? 

 

Aaron Nelson  26:00  
Yeah. I mean, sometimes they don't even know. 

 

Michele Lavigne  26:03  
They don't even know!

 

Aaron Nelson  26:05  
Yeah, they don't know what's important. They don't know why it would be important. They're just-

 

Michele Lavigne  26:09  
Or they don't know how to tell it. 

 

Aaron Nelson  26:11  
Yeah. 

 

Michele Lavigne  26:11  
They don't know how to tell it.

 

Aaron Nelson  26:12  
Tell me. Let's talk a little bit more about that. When you say they don't know how to tell it; I'm just fascinated about, you know, how vocabulary influences so much of who we are, our morality, our ethics, our decision making. Tell me about that. How does that impact when you say they can't even tell it?

 

Michele Lavigne  26:31  
Well, um, you know, whether you're talking about, you know, school. All right, yeah, I didn't like school. All right, that's actually tough to get in. Okay, let's talk about, what do you mean? You know, tell me. Tell me about it. Well, I wasn't very good in school. And you're going to get these... it's going to tend to actually be quite bland. 

 

Aaron Nelson  26:53  
Sure. 

 

Michele Lavigne  26:54  
Very, very bland, until you start to say: tell me about a class you like. Tell me about a teacher you liked. It's got to- 

 

Aaron Nelson  27:01  
Gotta flip it. 

 

Michele Lavigne  27:01  
You have to flip it. You have to start to understand: how do I probe for this? A friend of mine, who's a speech language pathologist, said that what you're doing when you're interviewing (and I don't like that word: interviewing) but when you're doing, when you're going after this information, you're like an archeologist going after shards. And you're going to get pieces, and there's going to be this mess, and you're going to end up with a box of parts, and then you, lawyer, are going to have to put them together.

 

Aaron Nelson  27:33  
And that's where, I imagine, you have a lot of thoughts about this, but for me, there's such different skill sets, right? There's the analytical lawyer that you just said, you have all of this, but to gather those shards, you almost have to be a blank slate. You can't try to push it in any particular direction. And it's just, they're almost like opposite.

 

Michele Lavigne  27:55  
I mean, well, they're certainly separate. When the when the shards are together, it's like, okay, now let me figure out how to-

 

Aaron Nelson  28:02  
Because I want to put stuff together right away. Like I might get three pieces and be like, "I got it; I want to put this together".

 

Michele Lavigne  28:07  
That's one of the problems we really run into. Number one, I'm going to say this: law schools, law trainings, we do not, do not, do not teach genuine communication. We don't. 

 

Aaron Nelson  28:21  
Yeah. 

 

Michele Lavigne  28:21  
We all assume, well, we all did well in the verbal SATs. So, therefore, we understand language. Judges assume: oh, I could tell by the language. You understood. You didn't. Cops do that all the time: oh, I could tell he understood. DAs: oh, I know what this person meant.

 

Aaron Nelson  28:38  
Yeah. Even if they speak a foreign language. Sometimes they'll say-

 

Michele Lavigne  28:41  
And we don't. One of the things I've learned over the years, and a lot of it's working with a speech language pathologist, you know, on a couple of articles, and really looking doing a deep dive into our communication; our communication is a disaster when it comes to our clients.

 

Aaron Nelson  29:00  
How important is that, to have that client communication, you know, to raise the level there? How-

 

Michele Lavigne  29:06  
It's all we got. What else is there? We don't do blood draws. 

 

Aaron Nelson  29:10  
Yeah. 

 

Michele Lavigne  29:12  
We don't do scientific tests. What else is there? You know, you've named this series Sanctuary in the Jungle. That's sanctuary in the jungle. 

 

Aaron Nelson  29:19  
Tell me more about that. 

 

Michele Lavigne  29:20  
All right, when I need to know you, I need to know your story. And I need to figure out how to go in and get it, and I need to make it safe for you to do it, and I need to make it correct. I mean, I need to go after it. How many times...I can't, I think about, I think, my God. How many times have I gone in there and actually not known the full scale of what happened here?

 

Aaron Nelson  29:49  
Oh, almost, I mean, it's a rare time where you feel like you actually know it all. 

 

Michele Lavigne  29:52  
And so interviewing, I mean, within, like, within the speech language world, within therapy world, the interviewing or conversations, which is, you know, a much better term, is a whole science. Do you know there's courses developed on this? 

 

Aaron Nelson  29:52  
Absolutely. 

 

Michele Lavigne  30:11  
Training is done on this. All right, the way we do training as defense attorneys, someone's going to watch you in trial. Somebody's going to watch you do a motion. Somebody's going to watch, you know, maybe review your written product. Maybe they'll watch you do initial appearances. Do they ever sit there and watch you talk to a client? 

 

Aaron Nelson  30:27  
Client interview. 

 

Michele Lavigne  30:28  
Nope, nope, nope, nope. 

 

Aaron Nelson  30:30  
And how much time do we devote to-

 

Michele Lavigne  30:31  
And how much time do we devote? 

 

Aaron Nelson  30:33  
And how much of a plan do we put into it? 

 

Michele Lavigne  30:35  
A plan. Are we planning? Do we think about: who is this guy? I mean, I believe that as a public defender, you are crushed for time, and you might have five minutes for a particular thing. It's gonna be the best five minutes in the world. 

 

Aaron Nelson  30:51  
It's gotta be. 

 

Michele Lavigne  30:52  
You've, and I'm going to, and I have to sit there and say: what's my goal? All right. And I may come up against somebody. Odds are, I'll come up against a client who's got a different goal. And it's the: I want that right now; I need this. But you have to know how. It's, you are constantly observing. What was that answer I just got from that client, and what did I do to just get that answer? That seems from outer space. Why is this? What did I do to draw this? How do I change? How do I change? I mean-

 

Aaron Nelson  31:22  
It's all looking at yourself. 

 

Michele Lavigne  31:23  
We analyze ourselves, our... Listen, to try a case, you know you're going back over it.

 

Aaron Nelson  31:29  
Sure, but the communication. What I hear you saying, is, like, I don't analyze myself probably enough in communication, right?

 

Michele Lavigne  31:37  
Right. None of us do. None of us do. Why am I having trouble here?

 

Aaron Nelson  31:41  
Yeah, I mean, it's almost like, well, he'd have told me that if it was important. 

 

Michele Lavigne  31:44  
That's right.

 

Aaron Nelson  31:45  
He would've said that.

 

Michele Lavigne  31:46  
Number one, he didn't, you know, maybe he couldn't get at it, maybe he couldn't access it. Certainly might not have known it was important. How would he know? But it's just, you know, the client will say: well, you didn't ask me. And it's like-

 

Aaron Nelson  32:00  
Yeah, it's, you know, the... for me, I want to, I am aware that I've read a lot. I've had a lot of opportunities. I have a certain vocabulary. I have access to a lot of different things that has put me maybe in a position different than other people, and I'm thankful for that. But I also want to be, have some humility and humble and assume that when I'm talking to somebody else, I want to talk down to them. Like, they're as smart as I am. They're as smart as I am. They're as smart as I am. But there's almost an air, as I'm, you know, that sometimes if I think they're as smart as I am, then they're gonna act the way that I would, and they just tell me the shit that I need to know, but that's not right. That's not how it works. 

 

Michele Lavigne  32:43  
It's not right. And, you know, if I'm dealing with, say, I'm dealing with somebody who dropped out in 10th grade. They not, may not be able to even access that information until I figure out: I'm going to help you access it. There's a certain therapy component to it. But one of the big mistakes we make, we talk way too much. We talk. I mean, I have now started, I just call it stfu. And stop it. Stop talking. It's because, and you see, I see it with students, you know, the students want to show: I'm going to show this person how much I know about the law. 

 

Aaron Nelson  33:18  
And you're in control too. 

 

Michele Lavigne  33:21  
Yep, totally in control. And as you say, you've given me three facts. Ah, I figured this out. Boom! Welll, wait a minute. No.

 

Aaron Nelson  33:30  
There's almost, there's almost a certain vulnerability that you have to have when you have this conversation. And I know different days, I'm more or less willing to be vulnerable. There's, you know, that that fluctuates for all of us. 

 

Michele Lavigne  33:43  
Yeah, yeah. And humility is a big one. That, that's not something lawyers on the whole do well. 

 

Aaron Nelson  33:49  
I'm striving. I'm still striving. 

 

Michele Lavigne  33:52  
You know, humility, it's like, you know, and not be afraid to say, I don't know.

 

Aaron Nelson  33:57  
Yeah. 

 

Michele Lavigne  33:57  
And not be afraid to not speak.

 

Aaron Nelson  34:02  
I find that to be, not every question needs to be answered. Or there doesn't have to be, it's almost like there's a dichotomy.

 

Michele Lavigne  34:09  
Maybe there doesn't need to be a question. 

 

Aaron Nelson  34:11  
Sure. 

 

Michele Lavigne  34:12  
You know? I mean, you, one of the things. So, this speech language pathologist named Sally Miles, she has a PhD in speech language pathology. And she co-wrote the Brendan Dassey article with me.

 

Aaron Nelson  34:23  
Okay. 

 

Michele Lavigne  34:23  
And she showed me really, how you get in, how you get in at this stuff. But we worked long before that, where it's, so, one of my articles is called, "He Got in My Face So I Shot Him". 

 

Aaron Nelson  34:34  
Yeah, I read that. 

 

Michele Lavigne  34:35  
And he got in my face. And how do you even deal with this? Because there's going to be an automatic assumption: what, it's self defense? You just, you're just jumping straight to self defense. 

 

Aaron Nelson  34:46  
Sure.

 

Michele Lavigne  34:46  
And you're thinking you knew what, you know what it means.

 

Aaron Nelson  34:50  
Because you're going to interpret it under your own experiences.

 

Michele Lavigne  34:52  
Your own. And so is the judge. So is the cop. The cop's going to be saying: well, see, he's a gang banging thug. 

 

Aaron Nelson  34:57  
Yeah. 

 

Michele Lavigne  34:58  
We all do this. And so it's just this thing of, he got in my face. Say more about that.

Aaron Nelson  35:07  
Sure. Get some more details.

 

Michele Lavigne  35:08  
Get some more details. And one of the questions, and this is something Keith has said as well, is a deadly question, is why? It puts them on the spot. And it requires, that's when they're going to start making shit up. Because they're going to start going back through, going, what's my reason? I have to have a reason. She's demanding a reason.

 

Aaron Nelson  35:28  
And what do you think? Do you think we need to have a reason? 

 

Michele Lavigne  35:30  
Well, you know, and it's just more like it, at some point, maybe you need a reason, but maybe it evolves. I mean, part of it is, as lawyers, whether as a public defender or a private attorney, you want the answer. You want this case going into a box as soon as possible so you can get to work on it. 

 

Aaron Nelson  35:49  
Do you have like, if, I mean, I know we want to be privileged, but do you have any stories that you can recall about a conversation? I know you've said you've written articles about this, where there would be like, how did that evolve? How were you able to do that?

 

Michele Lavigne  36:03  
This is a little off, but I can show you. So actually, I got called in as a consultant on a case with a deaf woman. And I kept saying, God, are you sure? Are you sure? And I was questioning the kind of interpretation she was getting. And so the lawyers brought me out to do this, and I said: well, let me sit down with her for a few minutes by myself, because I could sign some. I could better then than I can now. And we had a conversation. And so then in comes the interpreters, and we're just talking about her life. We're just going on and on and on about her life, and, you know, and she did have extraordinary she was actually very good at signing and explaining her life. And, you know, I could tell these interpreters were kind of looking at me like smarty pants from Madison, Wisconsin. And they finally, she said, why are you asking me all these questions? I said, well, I'm trying to get a sense of, you know, what you know, and how you communicate, and this and this and this. And then I flipped, and I started talking about the case. That fluent, smooth person. That was like, we hit a brick wall.

 

Aaron Nelson  37:17  
Just she couldn't do it. 

 

Michele Lavigne  37:18  
She couldn't do it. She couldn't understand the if, then, and the what, and then. The concept of why. It was, like, holy shit, this has gone off the rails completely. Now, again, it's slightly off, but again, it's assumptions made about how she thinks and how she operates and why, in fact, she did this.

 

Aaron Nelson  37:40  
Sure. Somebody will, I mean, we have that a lot in, you know, just for me, in my limited experiences, you know, not guilty by reason of mental disease or deep, deep person, sounds fine to me. 

 

Michele Lavigne  37:51  
Yeah. 

 

Aaron Nelson  37:52  
There's just so many assumptions that we-

 

Michele Lavigne  37:54  
It sounds fine. Or our big one, I could tell he understood, I explained it, and I could tell he understood. 

 

Aaron Nelson  38:01  
How do you? Yeah, how do you-

 

Michele Lavigne  38:03  
Because, first of all, if they don't, you know, if you have any kind of language deficit or just an underdeveloped language skills (which most people will have compared to you) they just will. 

 

Aaron Nelson  38:13  
Sure. 

 

Michele Lavigne  38:13  
They're not going to say, you know, I don't understand.

 

Aaron Nelson  38:18  
Correct. At least when I was, when I, in a in a different life, I was, would coach kids. Soccer and things. And I always made it a point that I tried to, and I tried to do this in law too, but I don't do it as well. But I tried to, the question was, never, do you understand? The question was, always, did I make it clear? Yeah, because I always thought that that was a way to, it's easier to say that's your fault Coach Nelson. 

 

Michele Lavigne  38:42  
Yeah. 

 

Aaron Nelson  38:42  
You didn't make it clear. 

 

Michele Lavigne  38:43  
Right. But, you know, you're still, even with that, you're assuming that they can articulate what they don't understand. You got to know what you don't know, which is a tough one. 

 

Aaron Nelson  38:52  
Yeah, that's a-Donald Rumsfeld went down that role.

 

Michele Lavigne  38:56  
But, you know, I mean, okay, back to law school. Did you have Erlanger for trust and estates?

 

Aaron Nelson  39:03  
Uh, I had Liesl Nelson for trust and estates. She took all of the notes and made sure that I passed my pass/fail. I don't recall who the professor was, because I never went to-

 

Michele Lavigne  39:16  
A very nice man? 

 

Aaron Nelson  39:16  
I'm sure he was a very nice man. 

 

Michele Lavigne  39:18  
Was it? Was it Howard Erlanger? Yes, okay. Had you been there, and there would have come a time when Professor Erlanger, one of the nicest people in the world, would have talked about the rule against perpetuities, which I can't-

 

Aaron Nelson  39:18  
I don't know-

 

Michele Lavigne  39:25  
Twenty-one year's life and being something, I don't get it. But he, and he would have said, "Does everybody understand? Any questions?" And everybody would have sat there going, "No, I get it". There's not a person alive who understands rule against perpetuities. But you'd all be sitting there going, "yuh huh". That's what clients do. 

 

Aaron Nelson  39:57  
All the time. 

 

Michele Lavigne  39:58  
All the time. All the time.

 

Aaron Nelson  40:01  
How do we-so, just time? I mean, I assume a lot of, part of it is, you know, I think maybe a friend, you know, Cynthia Rosenberry. I always hear her say, "You got to rock with your client. Gotta rock with your client".

 

Michele Lavigne  40:12  
I mean, you got to rock with your client, but you got to know how to talk with your client while you're in that chair. And it's, you can rock till a cow come home.

 

Aaron Nelson  40:20  
Yeah, yeah. 

 

Michele Lavigne  40:21  
But unless you have that ability to, to frame.. First of all, you have to be someone who it's safe to talk to. Meaning, you know, what we consider a normal conversation about this may appear to be verbal showing off. It can be certainly intimidating. Don't forget, this is a verbal arena. That's all we got is words. Everything's done by words. 

 

Aaron Nelson  40:45  
It's all words. 

 

Michele Lavigne  40:46  
Every last thing.

 

Aaron Nelson  40:49  
When this, every now and then, as little aside, the state will be like, "that's just a semantical argument". I'm like, "it's all words". 

 

Michele Lavigne  40:55  
It's all words. What do you expect? That's what we do. 

 

Aaron Nelson  40:58  
You know, when you talk about safety, you're obviously, at its core, we're talking about physical safety, but really, we're talking much different than just physical safety. 

 

Michele Lavigne  41:07  
Right.

 

Aaron Nelson  41:07  
We can assume that in most of these relationships that we have, that we've created a world in which our client is physically safe. 

 

Michele Lavigne  41:14  
Yes. 

 

Aaron Nelson  41:15  
But what do you mean when you say safe otherwise?

 

Michele Lavigne  41:17  
Well, you know I mean, if you want to get into physical safety, most of my clients were taller than me, and they knew there wasn't going to be a whole-if it came down to that, there wasn't going to be a whole lot that I could do. But safe in the sense of, I'm open to what you have to say. 

 

Aaron Nelson  41:32  
Yep. 

 

Michele Lavigne  41:33  
I'm open. I don't think I'm smarter than you, and I will make it safe for you to say these things to me. I will make it possible you to figure out, what do you need to say? I'll make it possible for you to go through things that might be painful to remember. That's, you know, that's safety. But in order to do that, you really have to have the nuts and bolts of communication down, which is why, you know, if I were queen, you know, we do-we do a lot of trial skills. We all know this. Look, I've taught, I've taught it all kinds of trial skills. And we've done this and done it. Where's the one week on how to communicate? Where is it? 

 

Aaron Nelson  42:17  
It's nowhere. 

 

Michele Lavigne  42:18  
We don't two weeks of, you know, NCDC, the trial skills, is two weeks.

 

Aaron Nelson  42:25  
Yes, and we have a half a day, a day on client, interviewing-

 

Michele Lavigne  42:29  
On client interviewing to get to-and the purpose of it is to, was to get to direct. 

 

Aaron Nelson  42:34  
Yes. 

 

Michele Lavigne  42:36  
How about the purpose of it is to find out what in the Sam Hill happened here? And who this human being even is. Where's that? Two weeks? 

 

Aaron Nelson  42:44  
Yeah. 

 

Michele Lavigne  42:45  
How about one day? Just go, man, call it a day. You know? I mean, it's, it's everywhere. We teach our, when we talk about skills, we are talking about almost everything except that.

 

Aaron Nelson  42:58  
And if, these, for me, it feels like the criminal defense world, the court system. You know, it's a system of judgment, and now, you know, not wanting to get too far, but we live in a world in which judgment is even more and more on social media and everything is judgment, judgment, judgment. And it's really hard, I think, to let another human being know that you're not judging them, you know, because I'm feeling judged all the time. 

 

Michele Lavigne  43:29  
Oh yeah. 

 

Aaron Nelson  43:29  
You know, I'm sure you're feeling judged often. 

 

Michele Lavigne  43:31  
Totally. 

 

Aaron Nelson  43:32  
You know, and so the clients that we have who are, they're, they're being judged. They are, their conduct is literally under judgment. To create that environment is just, it's astounding that we can even get there. 

 

Michele Lavigne  43:45  
Well, not only is their conduct being judged, their personhood's being judged. And I was just, because I was just at a sentencing last week in Wisconsin, and I watched, yeah, the conduct was being judged and I thought, "and you are going after this human being for his essence; you are basically saying: and you are a bad person". 

 

Aaron Nelson  44:09  
One of the things when I was thinking about just the theme of defending humans, or the theme of sanctuary, I was dabbling in some other stuff, and I came across this psychological concept called unconditional regard. Have you ever heard of that?

 

Michele Lavigne  44:24  
No.

 

Aaron Nelson  44:25  
I think it's a guy named Carl Rogers came up with it. And essentially, like you have this, unconditionally, you have this. It's not your character. I'm just gonna give you regard. I'm gonna give unconditional dignity, is maybe the phrase. I can't really conflate the two of them, but I'm trying to get myself into that mindset with my clients or with others, and it's even when I'm intentional and I read about it and I do it, it's hard place to go. And then we live in a world in which nobody else is doing that.

 

Michele Lavigne  44:58  
Right. 

 

Aaron Nelson  44:58  
Right? And that's where I feel like this. It's all conditioned. You know, all the regard that I'm going to have for somebody else is conditioned. The dignity that I give to somebody else is going to be conditioned. And already, you're here in the criminal court in you've not met the conditions, because you're here. 

 

Michele Lavigne  45:14  
Because you're called State of Wisconsin versus. 

 

Aaron Nelson  45:17  
Yeah

 

Michele Lavigne  45:18  
That's what becomes your first name.

 

Aaron Nelson  45:20  
Yeah. 

 

Michele Lavigne  45:21  
And, I mean, and it's, I mean, it's interesting. This is where I see the big split with public defenders and private: they're already thinking, "I've lost dignity, because I got to have a public defender, public pretender, public offender, not a real lawyer". 

 

Aaron Nelson  45:38  
Yeah, whatever terms that are in their-

 

Michele Lavigne  45:40  
Yeah, whatever, whatever comes. And so some of them are going to come in defensive.

 

Aaron Nelson  45:46  
Absolutely.

 

Michele Lavigne  45:47  
You know, ready. They've already made up their mind about you. So, you know, some of it, you're kind of backing out. And then it's just, you know, you treat, treat you with dignity. The problem is, of course, I'm here talking to you. I'm here talking to you in the hall and the bailiff saying you got to come over here. This court wants you over here.

 

Aaron Nelson  46:08  
Yeah, you're getting pulled literally in multiple directions.

 

Michele Lavigne  46:10  
You're getting pulled in multiple directions. They don't, I don't want to sound like a whiner, but, man, there's a lot of courts that really don't give us just any kind of regard.

 

Aaron Nelson  46:22  
Yeah, I mean, they-

 

Michele Lavigne  46:23  
They don't. I mean, it's just, well, there's a public defender. You got to come in here. I don't even know who this person is. Your Honor, I can't be here then. You know, I'm going to be gone. I'm on vacation. Then get someone else. It doesn't work that way. That's not how it works.

 

Aaron Nelson  46:39  
Just the lack of, it seems like everything has to be earned.

 

Michele Lavigne  46:44  
Yes, 100% and even then, they may still say, "yeah, you're not getting that". 

 

Aaron Nelson  46:50  
Yeah. 

 

Michele Lavigne  46:51  
Because in the end, you're a public defender, and you can get somebody else to be here.

 

Aaron Nelson  46:54  
So essentially, the system says we don't really care what you do or why you do it, we just need to check a box.

 

Aaron Nelson  46:57  

We need to check a box. 

 

Aaron Nelson  47:03  
And have a body here. 

 

Michele Lavigne  47:04  
There's a defense. Oh yeah.

 

Aaron Nelson  47:06  
We just need a body.We need a body at that table. 

 

Michele Lavigne  47:08  
Yeah. 

 

Aaron Nelson  47:09  
And that's lip service, really, to the principles that we're talking about. 

 

Michele Lavigne  47:12  
Oh yeah. 

 

Aaron Nelson  47:13  
And you find that that happens? 

 

Michele Lavigne  47:14  
Oh yeah...

 

Aaron Nelson  47:14  
Seems like an obvious question, I know, but for our listeners that aren't criminal defense attorneys-

 

Michele Lavigne  47:24  
All the time. 

 

Aaron Nelson  47:24  
Yeah.

 

Michele Lavigne  47:25  
All the time.

 

Aaron Nelson  47:26  
Why do you think that is? Because we, again, we give lip service to due process, right? And everybody loves to talk about right now, not everybody, you know, certainly in certain bubbles, they're like "due process, due process". And absolutely you and I believe in due process. That's our bread and butter and everything. But it feels like it's just lip service, right?

 

Michele Lavigne  47:49  
Well, it is, because it's, it's, due process is satisfied if I've got a body here. 

 

Aaron Nelson  47:54  
Yeah. 

 

Michele Lavigne  47:55  
Due process is, well, from the public defender's office, it's like I've got a relationship with my client. I'm not bringing in somebody from three doors down because I've got to be somewhere.

 

Aaron Nelson  48:06  
Sure. Right? They-

 

Michele Lavigne  48:07  
But they, it's just no or they'll call, and they said, "we need somebody over here". Oh, yeah, okay. I mean, you know, I'm taking a vacation. "Well, then you better get somebody to deal with it". Okay.

 

Aaron Nelson  48:22  
Yeah, you know we, we value the things that we measure. We measure the things that we value. I'm not quite sure, but now they're definitely measuring efficiency in courtrooms.

 

Michele Lavigne  48:33  
Oh yes, oh, efficiency in the numbers. And the judge saying this case has been open for X 122 days... Counsel that must be resolved in this number of-it's about processing the cases, it's processing. Do it, do it, do it. That's the efficiency.

 

Aaron Nelson  48:50  
But the "do it" is a D O. Not a due process. Not the process they are due. So, you know, as practitioners, you know, if there's practitioners out there that criminal defense attorneys, we don't have a lot of control in setting up that environment, right? I want to do this sanctuary in the jungle, right? Criminal court should be a sanctuary in the jungle. And for me, that means it's a, it's two parts. It's a place that recognizes humans with dignity and compassion, but the decision making is done without emotion. It's done evidence based. It's done rational. There's a process that we follow, but we probably have the least amount of control in setting up that environment.

 

Michele Lavigne  49:36  
Oh, so that all you can do, and that's why, when you talk about sanctuary in the jungle, it's like, look, I'm your sanctuary in this jungle. It's me. It's not going to be what these people are doing. It's not. There might be some due process. But, you know, yeah, you and I have had this conversation before, and I've had it with other people, of like, I know there's lawyers that say I represent the Constitution. I represent you and I will use the Constitution as a weapon.

 

Aaron Nelson  50:07  
Or as a tool or a shield. 

 

Michele Lavigne  50:08  
A shield or a weapon, or whatever I have to do with it in my little, you know, Xena Warrior Princess outfit. But you know, we, all I can control is myself.

 

Aaron Nelson  50:20  
I like that idea of you're the sanctuary, like it just emanates from you, and it might, you know, obviously any clients that you've represented understood that a lot more energy is emanating from you than probably most of the rest of us. What is it as a teacher? Right? You, for how many years were you teaching at the law school? 

 

Michele Lavigne  50:41  
Oh God... was it? Well, no, it wasn't.

 

Michele Lavigne  50:47  
Must been 30 years. Must have been 30. Yeah, yeah. 

 

Aaron Nelson  50:52  
Mean, you must give so you have all of the, you know, some of my best friends, some of the the lawyers that I greatly admire. You know, Ben Gonrin was a classmate the same year as I was. A good friend of mine, Jessa Nicholson, who we'll talk a little bit about more.

 

Michele Lavigne  51:05  
Yes. Yes. 

 

Aaron Nelson  51:06  
And Matthew Hefti, I know, is a student of yours. And so those are just a few to name. But how, other than those, you know, I'm sure you had lots of phenomenal people come through. But how do you give them the strength, you know. How do you let them know how difficult this is going to be without, like-

 

Michele Lavigne  51:27  
Crushing them.

 

Aaron Nelson  51:28  
Without crushing them, you know, but to understand the importance of, like, showing up every day and like having the energy to create this sanctuary. How did you do that as a teacher? That sounds like just even now, as I think about it, I was like, "oh my gosh, that must have been exhausting and complicated, difficult, if not impossible".

 

Michele Lavigne  51:50  
You know, looking back, I don't know how difficult it was. It was just, first of all, they knew, you know, by the time I'm seeing them... So I, so I first saw you the, your second semester of your second year.

 

Aaron Nelson  52:08  
Yes.

 

Michele Lavigne  52:09  
And so you had some sense of how it operates. Again, I don't want to sound like a jerk, but it was just, it just is. I mean, I think I, I hope I gave that off. This just is, and if, and you know, when it was weak knee bullshit, I wasn't afraid to say it.

 

Aaron Nelson  52:33  
I just finished reading a novel called Matterhorn by Carl Marlantes, and it's a novel of the Vietnam War. But one of the soldiers would often talk about it, a phrase that they'd share back and forth, and they'd say just, there it is. They'd explain some sort of injustice, and there was nothing to explain it. And one soldier would say to another, one human would say to another, there it is. There it is. 

 

Michele Lavigne  52:59  
There it is. And it's-

 

Aaron Nelson  53:00  
It's a lot of what, what. It's almost just a recognition of like, there's nothing to do about it. We just have to recognize that this is what it is, and when we have to move on.

 

Michele Lavigne  53:09  
And because, I think teaching it without being it, doesn't work. It doesn't work.

 

Aaron Nelson  53:17  
When you say without being it?

 

Michele Lavigne  53:18  
Without being, without being, that I care deeply about this. And so now I'm showing you I care. I'm not saying I care about this. I care about it.

 

Aaron Nelson  53:27  
Yeah, no, that was obvious. That came through. That like seeped through your pores, that was like dripping out of you.

 

Michele Lavigne  53:33  
And so when, if somebody gets up there and it's, you know, they're doing rote, you know, they know. They know it's not gonna... they know things aren't gonna go well. And, you know, whether it's, you know, the beginning of cross examination, and it's like, and the first one sucks, because they tend to, and it's just like, take my word for it. I'll get you there, I promise you. Because I also engage with them. I make a deal with them. You go with me. I'll get you there.

 

Aaron Nelson  54:02  
Yeah, there's got, I mean, what do you say to the people that say, well, that's just Michele. Michele's just, she's fortunate to be confident into-I mean, there's got to be times that you've had self doubt, that you're like-

 

Michele Lavigne  54:14  
Of course!

 

Aaron Nelson  54:14  
What am I, you know, how am I going to do this?

 

Michele Lavigne  54:16  
How am I going to, how am I going to do this? And part of it is getting people to understand, look, you are not me, but you bring you to this. You must bring you to this, you know, so that then, you know, from from there, it gets to... I, actually, I teach respect for judges. Who is this judge, you know. So when you know, they write their first motion and it's 20 pages long for a motion to dismiss a complaint. It's like, Well, nobody's gonna read this. Why don't we start here? Let's start with a compassionate view of what this guy's job is like.

 

Aaron Nelson  54:50  
What volume does he have to deal with as well?

 

Michele Lavigne  54:54  
And you know, are they reading the blah, blah, blah, blah, blah and some people, they can't handle that. And it's like, well, you can look at another job.

 

Aaron Nelson  55:03  
So teaching, teaching criminal defense attorneys, right? 30 years you've done it. We've talked about how some prominent criminal defense attorneys, there's, there's 100's, if not 1000's of attorneys here in Wisconsin that you've influenced. What if that goes away? I mean, what if-I mean, what if the, what if the law school says, "you know what, we're not going to teach, we're not going to teach criminal defense attorneys anymore". 

 

Michele Lavigne  55:25  
We're not teaching this anymore. It's not prestigious enough, you know, blah blah blah blah, blah, blah, blah, blah. You know, it's a major loss. And here's why: I've had students that go on to become all kinds of things... prosecutors, judges, corporate lawyers. But it teaches you something that nothing else can teach you, which is, here's how, first of all, just how do you deal with people? Here's what it looks like when somebody didn't have all the breaks that you have. This is what this looks like. Here's how the judges are treating people who didn't get the breaks.

 

Aaron Nelson  56:07  
Sure. 

 

Michele Lavigne  56:08  
And aren't sitting there with the fancy lawyers. You know? I mean, it's, it would be a major, a major loss, because it gets you down into the world of what really goes on. And the skills you learn doing that, you can take it to anything. If you want to go work at Foley & Lardner with these skills, have at it and you will and you know what? You'll be better for it. 

 

Aaron Nelson  56:34  
Absolutely. 

 

Michele Lavigne  56:34  
You'll be better for it.

 

Aaron Nelson  56:37  
You know, I, I worry if it goes away. Obviously, there's practical concerns, right? There were just the, but to say that a leading, our leading university in the state, you know, there's only two universities that you can get into law school from, and that leading university says, we don't, I hear them say, we don't see value in the due process. We don't see value in criminal defense. We don't see value that all of these principles that we have. And that just-Oh, that makes me feel so alone. It makes me feel so alone.

 

Michele Lavigne  57:12  
Well, I, you know, I just feel betrayed. And then I'm just, you know, like, oh, please. You know, the people that are saying this, they couldn't do what we did for half a day. They'd be dead, or they'd be crying in their beer somewhere, or they'd be with their mother. No, they couldn't do it. It's a very-the people that say that, live in their heads. 

 

Aaron Nelson  57:38  
Yeah. 

 

Michele Lavigne  57:39  
They don't, they don't live in reality. They don't live in the understanding. Because I, you know, would encounter people in the law school that would say, "well, can't this just be combined with the prosecution project?" No, these are really different skills.

 

Aaron Nelson  57:57  
Yeah, we talked about that a little bit before, like that sometimes somebody will say, "Well, you you've got to learn both", or "there's value in being a prosecutor before you become a-"

 

Michele Lavigne  58:08  
Before you become a defense attorney. It's like, no, oh yes. That was, that was a common one. You had the-both, and then you had this notion of, "well, you know, if you learn to be a prosecutor, that makes you a better defense attorney". No, you become a better defense attorney by being a better defense attorney. That's actually how it happens. Which isn't to say that there isn't something to learn. Once you get it, to get a sense of well, how does the prosecutor think? So, I was pretty friendly with John Chisholm, the longtime DA of Milwaukee County. He'd come to my classes and I went down and would, you know, went around and saw some of his community prosecution and how it worked... because it was like, I thought, I really want to know: how does he think?

 

Aaron Nelson  58:54  
Sure. Know how he thought was certainly unique amongst prosecutors.

 

Michele Lavigne  58:58  
It was definitely unique among prosecutors. But we, you know, he and I had a deal. We understood. He even came to my retirement party. That's what I like to tell people. And, you know, it was hilarious they had... so it was at the East Side businessman's club. I mean, this was, this was really, you know, hardcore. And the law school paid for 125 Manhattans, and anybody could hit Manhattans. And he and, you know, so people were there, and somebody had taken some of their pictures of famous Supreme Court litigants on the wall, and they brought them there. Clarence Gideon was the one in the middle, and John Chisholm, at some point, backs up. And Clarence Gideon falls on his head!

 

Aaron Nelson  59:39  
Oh. That's a little message, perhaps, right? 

 

Michele Lavigne  59:47  
A little something, something. I said, "oh John!" 

 

Aaron Nelson  59:49  
You know, I just reread, and that's a, I just reread "Gideon's Trumpet". 

 

Michele Lavigne  59:56  
Oh, yeah. 

 

Aaron Nelson  59:57  
And the fact that you know that whole principle of the, you know, he didn't have a lawyer, and so he lost. And the whole time through, like, as I'm reading this, they're, they're like, "a lawyer couldn't have done anything, a lawyer couldn't have done anything. He was guilty. He was guilty. He was guilty. A lawyer couldn't have done anything". And that's just everybody's looking at the case. And 'it doesn't matter. It doesn't matter". Of course, as we know, he got another he got another trial? 

 

Michele Lavigne  1:00:20  
Yeah.

 

Aaron Nelson  1:00:21  
He got a lawyer, and you know what happened? 

 

Michele Lavigne  1:00:23  
Acquitted. 

 

Aaron Nelson  1:00:23  
He was found not guilty. Which is, which is what I think goes back to the: only a criminal defense attorney could see that. 

 

Michele Lavigne  1:00:32  
Yes. 

 

Aaron Nelson  1:00:33  
Like the rest of the world, didn't see that; wouldn't see how that happened. A judge can't see that. 

 

Michele Lavigne  1:00:37  
A judge cannot see it. 

 

Aaron Nelson  1:00:38  
A prosecutor can't see that. There's some things that only somebody that is trained and has, recognizes these patterns over and over. Only they can see that

 

Michele Lavigne  1:00:49  
I mean, but that's where they and you can see where. Now it's devolved to the warm body test. And so you've coupled, which is coupled with ineffective assistance of counsel. You know, you look at the standard for an offense, effective offense- 

 

Aaron Nelson  1:01:04  
So low. 

 

Michele Lavigne  1:01:05  
It's so low, It's so pathetic. 

 

Aaron Nelson  1:01:08  
Yeah? 

 

Michele Lavigne  1:01:09  
And that's because, well, we care about finality. And it's like-

 

Aaron Nelson  1:01:12  
It's shocking. 

 

Michele Lavigne  1:01:15  
The altar of finality is everything. 

 

Aaron Nelson  1:01:17  
Efficiency and finality. 

 

Michele Lavigne  1:01:19  
And if the lawyer sucked, the lawyer sucked. And, you know, I'll say it, I've been, I know I've sucked at times. And there's some lawyers who just suck.

 

Aaron Nelson  1:01:30  
Yeah, no, absolutely. And then the-if that's the standard, you know, everybody's gonna pass it. I mean, I said I've got a trial coming up next week, and I'm deathly afraid my client's gonna get wrongfully convicted.

 

Michele Lavigne  1:01:48  
But they and here's the interesting thing, okay? How many times have any of us been asked, "how do you represent someone who you know is guilty?" 

 

Aaron Nelson  1:01:57  
Too many times. 

 

Michele Lavigne  1:02:00  
All right, at any cocktail party, any anything, and you say, "No, that's not-that's easy. I'm scared when I represent someone I think is innocent... Then I am a wreck".

 

Aaron Nelson  1:02:11  
Oh, yeah, right. I'm like, I think they got it wrong, and this whole result might be dependent upon my performance, upon my work, right?

 

Michele Lavigne  1:02:21  
Yeah. What if I screw up? 

 

Aaron Nelson  1:02:23  
Yeah. 

 

Michele Lavigne  1:02:23  
What if I screw up. 

 

Aaron Nelson  1:02:24  
Yeah.

 

Michele Lavigne  1:02:25  
You're gonna put it all on yourself, and that's the thing that scares the snot out of you. 

 

Aaron Nelson  1:02:29  
Yeah? Which is what, you know, any trial lawyer, you know, worth their weight, has lost trials because you gotta-you're just trying cases,

 

Michele Lavigne  1:02:39  
You're trying cases, yeah. 

 

Aaron Nelson  1:02:40  
And how do you not look in the mirror? You know that's, that's, you have to balance it. You have to balance it. But it feels as if those trials... maybe now I'm the one crying into my beer, right? But, so correct me if I'm wrong here, but it feels like when the other side loses, it's not a reflection, it's a it's a "What did Michele do to trick us? What did Aaron do?"

 

Michele Lavigne  1:03:05  
Oh yeah, you know what? It's our fault they lost. You did that on your own bucko.

 

Aaron Nelson  1:03:13  
Yeah. Well, and sometimes they'd lost because they're wrong. 

 

Michele Lavigne  1:03:16  
They're wrong, or, you know, they didn't put the case, or the jury sees it differently. That's why we have these 12 people. We bring them in. 

 

Aaron Nelson  1:03:25  
That's what my answer to the question lately is, is, you know, if I know one thing its, "I'll never be 12 people". 

 

Michele Lavigne  1:03:33  
Yeah, yeah.

 

Aaron Nelson  1:03:34  
The Constitution doesn't say "you have the right to the opinion of one lawyer". That's not what the Constitution says. It says that you have to convince 12 other people. I'm not 12 people. At the end of the day, I'm like, I'll never be 12 people. So I'm just got to go forward and do this. 

 

Michele Lavigne  1:03:53  
Right. And to get people to understand. Look, if I know somebody's guilty, I shouldn't be their lawyer. I don't know. I mean, I can say, got a hell of a case against you here, you know, I could certainly say I can picture myself going down in flames here. I could see that. Do I know? If I was there, then it's not my case. 

 

Aaron Nelson  1:04:13  
Exactly, exactly, right? Yeah, maybe it's just a different concept of of knowledge, right? I mean, you're very open and humble, intellectually curious about like, "well, I might think some things, but I don't know them". 

 

Michele Lavigne  1:04:28  
I don't know them. And then it's just like, oh, that's just, you know, being clever and sophistry and blah, blah, blah. It's like, no, that's that actually is the standard. Do I know? No, I don't know. Yeah, I might have a pretty good idea. But so what?

 

Aaron Nelson  1:04:43  
So, some of the things I think about with Sanctuary in the Jungle is, you know, decision making, you know, in an environment. But what little I've been starting to read up on this is, like the perception of fairness actually improves public safety. It reduces recidivism, it improves everything else. And it just seems to me like, okay, that's so obvious. It's just evidence. There's evidence that says the perception of fairness improves public safety, but that doesn't change the needle. That doesn't make it a sanctuary. That doesn't improve the behavior within there. Why do you think that is?

 

Michele Lavigne  1:05:26  
Because in the end, there's a visceral sense... people fear crime, and we will err on the side of finding them guilty. We will err on the side of being, of punishing them harder. No one has ever lost an election for being too tough on crime. Never, ever, ever. You know, no recall for someone being too tough on crime. None.

 

Aaron Nelson  1:05:57  
None at all. 

 

Michele Lavigne  1:05:57  
None. 

 

Aaron Nelson  1:05:58  
It just comes down to just fear in public safety. 

 

Michele Lavigne  1:06:00  
Fear, I think it's straight fear. I mean, we're seeing it now. We're seeing it now in politics, where, you know, crime, crime, crime... calling Chicago a hell hole. Yeah, okay, we're preying on this fear of something. And I'm gonna say there's a racial element to it. 

 

Aaron Nelson  1:06:18  
Absolutely. 

 

Michele Lavigne  1:06:19  
You know, look at the cities we're picking on here. But it's like, fear is an emotion. And we, we all know emotions are much stronger than any cognitive process.

 

Aaron Nelson  1:06:34  
Yeah, that's why, in for me, Sanctuary in the Jungle is to try to rely more on the cognitive process because I think the more we rely on the cognitive process, the more at a macro level, it's going to help our clients. If it's not on an emotional level, if it's not, it's not going to be a reaction to fear, right? It's gonna, gonna help us. 

 

Michele Lavigne  1:06:54  
You know, can the cognitive process overcome the emotion? And I don't know. I, you know-

 

Aaron Nelson  1:07:01  
Do you think the, you know, just here as we-Big part of this is efficiency. We talked about it already. Make things happen quicker. Make things happen sooner. And what I've always thought is, look, we want to, some would, I don't wanna say, drag it out, but go through the process. Because also, over time, emotions dissipate. You're gonna be more likely to have a decision based upon rational process and cognitive. And yet, here's this other trend now to push everything to be, as they say, efficient, which is really faster, which means it's going to be more emotional.

 

Michele Lavigne  1:07:35  
It's going to be more emotions. And it's, it's based upon the great fallacy that faster is fairer. It's not. It's great. It's built upon that great fallacy that actually the system is very easy to understand. It's not. For example, you get a deal from the DA for the first time. You're sitting there and the judge says, I'll give you five minutes. Uh,no. 

 

Aaron Nelson  1:07:35  

Yeah, life changing decision... just, you've got five minutes. 

 

Michele Lavigne  1:07:35  
And I'm going to explain constitutional process to you.

 

Aaron Nelson  1:07:35  
Correct, to somebody else who may have some limits.

 

Michele Lavigne  1:07:42  
Yeah, to somebody, it's like five minutes. It's like, yet, they have to understand the risks; they have to understand the benefits; they have to understand, you know, the nature of the case. They have to understand this. They have to understand this. We'll give you five minutes. Maybe they're going to be nice and give you 15.

 

Aaron Nelson  1:08:28  
Sure. 

 

Michele Lavigne  1:08:29  
I can't counsel. Yes, you can. And, you know, and it's the same thing when it's just, speak slower and use plainer language. And it's like, "oh, God, no".  

 

Aaron Nelson  1:08:38  
Not that simple. 

 

Michele Lavigne  1:08:39  
It's not that simple. It's not that simple. And it really kills me when you have somebody on the bench who was a defense attorney and they're giving you this.

 

Aaron Nelson  1:08:47  
Why do you think that is? 

 

Michele Lavigne  1:08:48  
They lose their minds.

 

Aaron Nelson  1:08:56  
You know, when I think of fairness, a lot of times, I think of this, what I think we're talking about, procedural fairness. We have to go through all of this stuff to get to it. But there's a large part of the population, maybe they're sometimes judges, that are just, it's results-based. Distributive fairness. It's just all about what that result is. And that's where this, this tension is. They think they already know it. We just need to get there as soon as we can. 

 

Michele Lavigne  1:09:25  
We need to get there and we need to check the boxes. Because they're because we have, to some extent, taken due process down to, can we check this box? You know, do you remember Dave Schultz at the law school? 

 

Aaron Nelson  1:09:36  
Yeah, absolutely. Jury instruction. 

 

Michele Lavigne  1:09:37  
The jury instruction guy. Jury instruction. He had dealt with the guilty plea questionnaire. 

 

Aaron Nelson  1:09:47  
Yes. 

 

Michele Lavigne  1:09:48  
The R227. We all know. I mean, I still remember the number on it. 

 

Aaron Nelson  1:09:52  
Two two seven, yeah. 

 

Michele Lavigne  1:09:54  
And he said they wanted to get it on a single piece of paper. Have you ever read that thing? Have you ever taken a good hard look at it?

 

Aaron Nelson  1:10:02  
Yeah. Oh, yeah.

 

Michele Lavigne  1:10:03  
Insane. It's like somebody's talking about-they have a disorderly conduct, and suddenly there's somebody else telling them about body armor. What in the Sam Hill are we even talking about here?

 

Aaron Nelson  1:10:13  
And even on parts of it, it says you can't modify it. 

 

Michele Lavigne  1:10:15  
No. 

 

Aaron Nelson  1:10:15  
So I'm like, I cross stuff out on there all the time, but I'm like, it says you're not... I mean, you have to know that you're going to be able to modify it. 

 

Michele Lavigne  1:10:23  
Because it, two thirds of it doesn't apply to most people, and the way that it's written, sometimes you're going to have double and triple negatives in there. And you're thinking, this is unintelligible. 

 

Aaron Nelson  1:10:35  
Yeah. 

 

Michele Lavigne  1:10:35  
Counsel, you can explain. 

 

Aaron Nelson  1:10:37  
It probably took me about 20 years to figure out how to ask some of those questions in a way that were understood because you didn't have double negatives or triple negatives. 

 

Michele Lavigne  1:10:46  
Triple negatives. And we also build in, do you understand you are giving up the right to this, as opposed to, we actually back up with, let me start with this. When a person comes in here, you have this right, which means this and this and this. Tell me, you know, help me out. Do this. Do you understand? They don't even do that. They just, do you understand? Do you understand. 

 

Aaron Nelson  1:11:08  
What's the answer to that? Not anything other than yes. 

 

Michele Lavigne  1:11:10  
Yeah, it's the ultimate leading question. "Do you understand?" is the ultimate leading question.

 

Aaron Nelson  1:11:16  
How can we you know, it almost gets back to the Dave Niblack quote that you started with, right? You're just stand here and, yeah, you know, flip the switch. What was the quote again?

 

Michele Lavigne  1:11:26  
Your job is to stand between your client and the vicious sons of bitches that want to do him harm.

 

Aaron Nelson  1:11:32  
Yeah. And they want to do it quickly. 

 

Michele Lavigne  1:11:33  
Very quickly, in addition to everything else, yeah? And you have to give that sense of you want to get to him. You got to come through me. 

 

Aaron Nelson  1:11:44  
Yeah. You know, as teachers, but also I mean as lawyers and as teachers, you know, we're witnessing our clients trauma, and sometimes the trauma as a teacher, you're witnessing your students, student lawyers, experiencing their clients trauma. How do you help them process that? How do you process that secondhand trauma?

 

Michele Lavigne  1:12:10  
Well, I mean, number one, you know, I don't know if you, I don't know if you process. You take it.

 

Aaron Nelson  1:12:16  
You just absorb it. You're just a sin eater.

 

Michele Lavigne  1:12:18  
And then you hope that, you know, you can work it out. You know... can you can you process it? How do you process that day after day after day? I mean, it's interesting to me because-

 

Aaron Nelson  1:12:27  
Maybe that's wrong word. Yeah.

 

Michele Lavigne  1:12:28  
There was a time, it was a while ago, where everybody was saying, well, public defenders have secondary trauma because their clients lives have been so bad. I actually disagree that that's the cause of it. No, I'm watching what you're doing to my client now, and, by the way, what you're doing to me, too.

 

Aaron Nelson  1:12:43  
Yeah. I mean, we talked about it before. You talked about just, and I texted my friend last night. I'm just, I'm so tired of the cruelty.

 

Aaron Nelson  1:12:51  
Oh, it's constant, just for its own purpose.

 

Aaron Nelson  1:12:51  
Yeah, and it, you know, keep showing up, because what else are you going to do? Like you going to do? Like you said, what else are you going to do? You got to keep learning. You got to keep doing it. I know it's important, but it's, it's that that is, to me, the, I just like, I'm getting old man, I'm tired. This cruelty is just-

 

Michele Lavigne  1:13:14  
And it is and, you know, it's the Mary Trump book, the cruelty is the point. Yeah, just you sit there and you just say, I understand why you felt you had to do what you had to do. Maybe I'd do the same. But why are you talking to this man this way?

 

Aaron Nelson  1:13:32  
Yeah, labels and characterization.

 

Michele Lavigne  1:13:34  
Right. Characterization and assuming "I know what motivates you". No, you don't. No, you don't. What? Based on reading a five page pre-sentence investigation?

 

Aaron Nelson  1:13:43  
Which is also just to me, intellectually, cognitively, just, it's so frustrating, because I think all the research supports like: to change behavior you shouldn't do that. If you want to modify somebody else's behavior, you need to make them feel like they belong. You need to bring them in. You don't need to cut them out. 

 

Michele Lavigne  1:14:04  
And not tell them and talk about, you know, you're talking about humility earlier. Could you try some? Could you try a little on? You know, I don't understand when there's going and I can tell and I know, and I gave believe, and you don't mean this, and you said this, but I know and this and this and this, and you're thinking, you know nothing. You are no different than me. And I'm gonna sit here and say, "Boy, is there not a lot". I, there's a lot I don't know, and you're no different than this guy over at the next table, I guarantee you he doesn't know much. And it's just, it's shocking to me. 

 

Aaron Nelson  1:14:40  
Yeah. 

 

Michele Lavigne  1:14:42  
That we can just, we just think we know. And I have a former student who's a judge, and I one day said, you get anything on psychology judges college? I mean, are they talking about humans. And, well, we did something. We're finally learning juvenile brain development now. It was 20 years after Roper versus Simmons, but I said, well, better late than never. 

 

Aaron Nelson  1:15:08  
Yeah, yeah, right. 

 

Michele Lavigne  1:15:10  
But it's like, well, who are these people?

 

Aaron Nelson  1:15:13  
One of the things I've been thinking about is, from a sentencing standpoint, when I don't-I'm not saying a particular judge, but if judges lack the communication skills to make a victim feel whole; to make a communication skills to make a victim feel healed; to lack the communication skills to kind of explain what we're doing here. Sometimes they just substitute that for a big number. And it's a lot of the, a lot of the sentencing that we actually have (the mass incarceration) comes back to this lack of communication. They don't have the words to express what they really want to and so they just give a big number.

 

Michele Lavigne  1:16:02  
They just give a big number, and they and they, it's gotten so much worse. So I started practicing in 1978 and I want to see there was like 5000 people in the Wisconsin state prison system. What are we at now? 25,000?

 

Aaron Nelson  1:16:15  
Yeah. 

 

Michele Lavigne  1:16:15  
Well, you know what? The population of Wisconsin hasn't grown with a multiple of five. It hasn't. 

 

Aaron Nelson  1:16:21  
Not at all. 

 

Michele Lavigne  1:16:21  
And so, you know, what is it? I mean, that is, that is our communication method. I will show you. I will give you this, I will give you this number. It is the phoniness. We don't-first of all, this notion that the criminal justice system is going to make any victim feel better about anything is preposterous. 

 

Aaron Nelson  1:16:41  
Absolutely, it's the wrong place to seek healing. 

 

Michele Lavigne  1:16:43  
You're not going to get nothing. It's not going to heal anybody. 

 

Aaron Nelson  1:16:46  
No. What can we-is there anything we can do as criminal defense attorneys to improve the judge's communication skills? I mean, what I try to do is I'm just like, I have to model it. I have to also educate. I have to start telling the stories that maybe the judge can then steal or take or reform. What? What other ideas do we have to-

 

Michele Lavigne  1:17:09  
You know, I'm a, you can educate by the slow drip of communication. What are some fundamental things you see the judge doing? Pick the ones that apply to your client. My client is going to be saying these things that can be easily interpreted as lack of remorse. Here, judge, your intellectual self, are, you know, here's the research that shows, in fact, why we don't understand. And I, you know, drip, drip, drip, drip. And you might not get it today, and you might not get it tomorrow, but maybe next week. 

 

Michele Lavigne  1:17:20  
But even maybe using some of your tools, you know, you might be thinking this. Yeah, yeah. I understand why you might be thinking that. 

 

Michele Lavigne  1:17:27  
Yeah. 

 

Aaron Nelson  1:17:28  
But, you know, I thought that at first, too. And in fact, I've learned-

 

Michele Lavigne  1:18:00  
I mean, you know, throw yourself at the "I'm equally as stupid". I mean, you can, you know, I mean, say "I don't get it". 

 

Aaron Nelson  1:18:08  
But I've learned this through-

 

Michele Lavigne  1:18:10  
But I've learned this because I've done this and this and this, and here's what I learned.

 

Aaron Nelson  1:18:13  
Yeah, I wonder if there'd be interesting again, unlimited funds to just do a study on like, literally judges vocabulary and the sentences that they give. I'm guessing there's a correlation-

 

Michele Lavigne  1:18:28  
There's a correlation, yes.

 

Aaron Nelson  1:18:29  
The lower their vocabulary, the higher their sentences.

 

Michele Lavigne  1:18:32  
You know the, and they're just... well, or it might be, or the higher their vocabulary is, the lower their emotional IQ. All of a sudden you're going, you know, you're going to be going down.

 

Aaron Nelson  1:18:45  
Yes, I just think they they want to say something, they want to, but they don't know how. 

 

Michele Lavigne  1:18:49  
They have no idea. 

 

Aaron Nelson  1:18:50  
They don't know how. And so instead of, instead of maybe doing the work, or even... You don't know what you don't know. And so they're communicating what they want by giving the number because that's just a simpler, easier-

 

Michele Lavigne  1:19:04  
It's an easier way. And it's, it's not engaged, it's not hard.

 

Aaron Nelson  1:19:09  
No, nobody's gonna be critical. 

 

Michele Lavigne  1:19:10  
Yeah, you're not gonna-

 

Aaron Nelson  1:19:11  
Other than us. We don't really count for much. 

 

Michele Lavigne  1:19:13  
No, it's like, well, they're defense attorneys. What'd you expect? 

 

Aaron Nelson  1:19:16  
Yeah. 

 

Michele Lavigne  1:19:16  
But it takes, it takes a lot of reflection. How many judges reflect before they walk in there? How many judges reflect as they start to talk? Are saying: Is this making any sense, or am I just talking to hear the sound of my own voice?

 

Michele Lavigne  1:19:16  
Yeah, no. I mean, that's those are good questions. You'd hope that everybody's asking.

 

Michele Lavigne  1:19:34  
Yeah, you know. But if, if you start to say... One of the things that I talk to students about, if you said, if you start, I would say, if you start to understand: judges are like anybody else, and they like to be flattered. They like to be this. They like to be educated. And if we start, slowly but surely, I'm back with the same argument here. Here's more science on this judge. I know you had said you didn't buy it last time. I got more. 

 

Aaron Nelson  1:20:00  
Yeah. 

 

Michele Lavigne  1:20:00  
There's more where that comes from. Allow me. If we start, if we say, in the end, judges are lawyers just like us. That's what got them there. They're lawyers just like us. They'd like to learn something new. Their job has got to be pretty boring. What if we start to give them a new way to think about things. And it won't be today, it's going to be, we're going to keep going at it and going at it and going at it, and we will present it in a way very dispassionate. This is where-this is where that, you know-

 

Aaron Nelson  1:20:35  
Your sanctuary. 

 

Michele Lavigne  1:20:37  
This is where, this is that kind of sanctuary. It's like we're going to talk about this as a safe place to talk about law, to talk about social science, to talk about hard science, and we're going to get you to understand this, because I'm treating you as an intellectual who wants to understand. 

 

Aaron Nelson  1:20:53  
Sure and what are the errors in thinking that we have? How does our, how do our brains, how should we make decisions? 

 

Michele Lavigne  1:20:58  
How do we, how do we do this and keep at them, and keep at them, and keep at them in a very respectful kind of a way. Understanding your, you know, talk about cognitive bias. You've got to overcome cognitive bias that you know, is the size of the Wall of China. Okay, fine.

 

Aaron Nelson  1:21:16  
The best way to do this is to just keep showing up. 

 

Michele Lavigne  1:21:19  
Keep showing up. 

 

Aaron Nelson  1:21:20  
Keep showing up. 

 

Michele Lavigne  1:21:21  
Here it is again. It's not the same motion. Judge, I rewrote it.

 

Aaron Nelson  1:21:24  
Which is actually very important, as opposed to just "resend".

 

Michele Lavigne  1:21:27  
Resubmitting it, resubmitted it. I'm here now. I'm going to bring in somebody who's going to talk about this, and I'm going to educate you if it kills me. I mean, patience. You have to have patience to do this.

 

Aaron Nelson  1:21:40  
Yeah. Sometimes it's in short supply. 

 

Michele Lavigne  1:21:42  
Yeah. 

 

Aaron Nelson  1:21:44  
So we should probably wrap up. This has been fantastic. I can't tell you how much I've enjoyed this, but I need to improve my communication skills to be able to tell you how, how much it meant to me to have you be my teacher, to be somebody that I learned from, and to just look up to and admire throughout that whole time.

 

Michele Lavigne  1:22:01  
All right, and let me tell you what it's, how cool it is to look out and go, "see that guy. See that really good, the good lawyer there? He was my student." It's pretty darn cool. 

 

Aaron Nelson  1:22:11  
Still learning. 

 

Michele Lavigne  1:22:12  
It's pretty darn cool.

 

Aaron Nelson  1:22:22  
Thanks for listening to Sanctuary in the Jungle. This episode was brought to you by Nelson Defense Group and MadeDaily. We'll see you next time for another episode. Until then, stay strong and carry the hope.