FHTH Bonus Ep - Jon Bailey on his $120 Million Dollar Verdict

Jon Bailey just won a $120 million dollar verdict in Texas in a wrongful death trial. In this webinar, he and Sari talk about his recent win and how trying this case was unlike any other case he'd tried before.

You'll learn:
-How Jon came to the number $120,000,000
-How he explained that number to the jury
-Why he didn't attempt any cause challenges
-How he tried the entire case using a flip chart as his only visual (and why)
-His "win" before the win
-And more!

You do not want to miss this special podcast episode. We had only planned on doing a webinar but there was such great learning we decided to turn it into a podcast!

???? Check out the free H2H training below!

BONUS EPISODE TRANSCRIPTION

Sari de la Motte:

Hey guys, Sari de la Motte here. This is a recent Facebook Live that we've uploaded as a podcast. Enjoy.

Intro:

When you're up against a hostile room of people who don't want to be there, you need real strategies that get results. Welcome to From Hostage to Hero, the show that gives you practical advice you can use right now in the courtroom, boardroom, or classroom. Learn how to move your unwilling audience to one that is invested in what you're saying, eager to participate, and engaged in the process. Learn from the attorney whisperer herself, your host, Sari de la Motte.

Sari de la Motte:

Welcome, those of you who are now coming into the room here in Zoom, and welcome to those of you in the From Hostage to Hero Facebook group. We are here with Jon Bailey from Midland, Texas. You're in Midland, right?

Jon Bailey:

I'm in San Angelo, but close, close enough.

Sari de la Motte:

San Angelo. Okay. I'm thinking Midland because of-

Jon Bailey:

Yeah, because we worked there.

Sari de la Motte:

... when we worked there. So San Angelo, Texas, and we're talking to him today about his monster $120 million win in a wrongful death case. Welcome, Jon Bailey. So I have to tell the group, because y'all, if you're following me and you listen to the podcasts, you know that I have one case that is my favorite case, and it is the dram shop case. And Jon Bailey was one of the three attorneys, he gave me permission to share that, who was on that case. And we were down there on that case. It was a $100 million case we were working up. And so, what a wonderful surprise to hear that you got 120 on this case. Congratulations on your win, by the way.

Jon Bailey:

Thank you.

Sari de la Motte:

So Jon, tell us a little bit, give us some background. What was this case about and what were some of the issues? And then we're going to dig into it a little bit.

Jon Bailey:

Yeah. So this case was a... We had a lawsuit against a... It was the third-largest driller in the world. One of their workers was driving from one drilling rig to another drilling rig. When he fell asleep and came into our lane, our guy was the passenger, and he was killed in that crash.

Sari de la Motte:

Go ahead.

Jon Bailey:

No, no.

Sari de la Motte:

I was going to say, who was involved in the case? So we have a wife and...

Jon Bailey:

Yeah. So we had his wife and then their four children. The oldest was 26 and then his next one was probably 23. And then his third child, she gave the valedictory speech two weeks after he passed away, and then he had a 16-year-old son.

Sari de la Motte:

Wow. So what were some of the issues in the case?

Jon Bailey:

So the battle for them, the legal issue, was whether he was in the course and scope of his employment, and we had two jury questions on that. So that was the big battle.

Sari de la Motte:

Yeah. Yeah. And so, how do you believe that you were able to overcome that?

Jon Bailey:

Well, I mean, I think he was working. But to me, what it was was really more of a battle of credibility. We were as honest as we possibly could be with the jury and the family that we represented and this man. He was an unbelievably honest, good human being. And the company on the other side was not honest in the way they approached things. So it just became a battle of credibility of whether you were with us or you were with them.

Sari de la Motte:

I think that's nearly always the case. It's absolutely a battle of credibility. I want to talk about how you were able to build that credibility in just a minute. Give us a little background on where this took place and COVID and virtual versus in-person. Set us up. Where were you? What was going on?

Jon Bailey:

So this is in a little West Texas town, about 4,000 people in it. And our client, his family, they were from there and just did a lot in the community. It was a very tight-knit community. I mean, it was probably an hour and 15 minutes from any place that is 100,000 people or more, and so a very insular place. The oil field is the lifeblood of this community. One of the first wells in West Texas was there. So that was one of the things that we battled, is not to be viewed as an attack on oil, but an attack, a battle basically, on companies that are doing it the right way.

Sari de la Motte:

Yeah.

Jon Bailey:

So yeah, that was the community of where it was. As far as COVID, we had... And there's a couple of interesting things on that that maybe are a little different. So we had it in a community building, because of COVID, so you could spread out. And in these little towns, you'll have... It looks like... I'm sure a lot of people have seen it. And so, it had a different energy because instead of a courtroom where people have gotten divorced or had criminal problems, this was where people had been married and had receptions and had quinceañeras. And so, it was a different energy, and so that was nice.

Jon Bailey:

One of the things that was interesting is, one of his daughters, when she was on the witness stand, I was talking to her, and we had a picture of a daddy-daughter date night. And she was telling me the song that they like to sing to and dance with, and it was Van Halen, Jump. And so, you could see him throwing her up in the air, and I was like, "Well, tell me a little more. I was away from the desk and I was kind of in the well," and she goes, "Well, he was standing just a little bit back behind you." And it dawned on me that that dance was in that actual spot that he was standing within a few feet of me at the time.

Sari de la Motte:

Wow.

Jon Bailey:

Yeah. So that was interesting, the energy of it being in a different place. As far as COVID, everyone wore a mask, but you could take it off when you talked. And what was interesting, I would say insidious, was there was a big legal team. There was 14 lawyers on the other side and they had jury consultants and that kind of thing. And one of the defense lawyers in jury selection, he made it a big point to tell the jury how much he disliked the mask that we were all wearing. And the judge shut him down and said, "Hey, this is from the Supreme Court," and the judge talked about how he had lost some family members from this.

Jon Bailey:

But it was clear he was trying to divide people, and then he moved on to ask people who was vaccinated and who was not vaccinated, and in another attempt to just intentionally divide the panel.

Sari de la Motte:

Wow.

Jon Bailey:

And our goal was to unify everybody, not divide them.

Sari de la Motte:

Mm-hmm. Yeah. That's crazy to me that they would be so wanting to have that happen with the panel. Just wow. What a gift to you. And you said there was about 150 in the panel, am I right?

Jon Bailey:

Yeah, they called 350. And so, I think we were between 100 and 150. The whole place was full and everybody was spread out. So it was a little bit of a challenge as far as picking the jury.

Sari de la Motte:

So talk me through kind of... And we were talking about this before we got on, but your changing idea about jury selection and how you wanted to approach it and how you ended up approaching it here.

Jon Bailey:

Yeah. So when I first started practicing, I was very much, I didn't know the word, but it was an exclusionary jury selection. And I always thought I did a great job the more challenges for cause I got. And that went okay. It wasn't bad. And then over time, I really started being more drawn to an inclusionary voir dire or jury selection. And by the time you and I worked together, you were very much on all inclusionary and I was still trying to find a way to mesh those two things, and even a little irritation towards you, because I'm sitting here going, "That doesn't work that way, Sari. You can't just go all inclusionary. You have to..."

Jon Bailey:

And in this jury selection, I've just totally shifted and decided, "Look, I want to do it the way that feels better," and just assume that people were there with good hearts and wanted to do the right thing. And that doesn't mean that there aren't some people that just can't follow the law, and they're still good people and that's okay. But in this case, we didn't have any challenges for cause.

Sari de la Motte:

Yeah, not a single challenge for cause, which I think is incredible. And I do remember we had a terrible first day. I was there for five days with you. And by Friday, you turned to me, you still haven't got me this video by the way, and you said, "I need to do a video for you that says, at first, you're going to think this woman is batshit crazy," or something you said, "but she'll get you in the end."

Jon Bailey:

Yeah.

Sari de la Motte:

So I'm so glad that that worked out. And I love what you said there, Jon, about how it felt better. Talk to me about what... How does it feel better to do an inclusionary voir dire? And as you know and as people who follow me know, if we see someone that shouldn't be on our panel, we don't try to get them on the panel. That's not what we mean by inclusionary. What we mean is, going in with the idea that there are people here who want to help me and I'm looking for them, and in that process, I might find people that don't want to be here. Great. I'm done. But it's a mindset more than trying to get people, everybody to be on the panel. How was that feeling better to you?

Jon Bailey:

Well, I think I used to, and still there's glimmers of this, given by the fact that I gained 10 pounds during trial preparation. So there's still glimmers of fear, but used to, when I would go to pick a jury, there was so much fear and I masked that with anger, where I'd be snippy with people on my team or, "Hey, if you can just do your job, you don't know how much pressure this is."

Jon Bailey:

And I think the idea that perfect love casts out fear of, instead of me being so scared of what's going to happen or how they're going to jack me up or this person or this race or this gender is bad or good or this political preference or whatever, now it's just looking at that person with genuine love and saying, "Hey, you came here and you've been summoned here, and you've got some collective wisdom to offer. And I love that you're here and I love you for that." And to not be scared for me, but to want what's good for that person in that moment. And I know that sounds weird.

Sari de la Motte:

Well, and even the ones that are not... No, doesn't sound weird to me at all. But even the people that are there that are not ending up on the jury, either because we don't think they should be there or the other side doesn't, still have something to offer to the process, still have a worldview. We talk all the time and the crew when we're practicing voir dire about how even a bad answer, you can use. And we did this, Jon. I remember when we had... Remember in our first... We had three juries over the week, and our first jury had that one guy on the corner that was just so bad for us, and yet he was one of the strongest things for creating the group, because every time he kept talking, the rest of the group was like, "What?"

Jon Bailey:

Yes. Yes.

Sari de la Motte:

They've gotten more and more of a group. So it's not necessarily that bad jurors are bad. Sometimes, they help form the group. Sometimes, they give us great stuff that we can play with.

Jon Bailey:

Yes.

Sari de la Motte:

So I love that. I love that. You also said that you had more fun at this trial than probably any other trial. Talk to me about that.

Jon Bailey:

It was so overwhelming as far as the amount of resources that the other side had. Their story was not honest, but it was very... They would shift on a dime. They would create all these new exhibits. I mean, it was just overwhelming. So used to, I would try to outwork. I'd stay up all night. And finally, I just realized I can't outwork these people. Our team, we have a phenomenal team and I just played a part in that, and I think that's critical.

Jon Bailey:

But it was just a realization that I'm not going to outwork myself through this. And to just say, "I'm going to be in the moment and truth's on our side and love's on our side. And so, I don't have anything to be scared of." And so, because of that, I got to be much more in the moment.

Sari de la Motte:

Mm.

Jon Bailey:

Yeah.

Sari de la Motte:

Yes. We talk about that all the time. My goodness. I couldn't script this better, not that I scripted this. I'm joking. So I asked you if you designed with the jury, because the design alliance is a big deal around here, and you said not totally, but there was one thing that you did that I just thought was incredible in jury selection when you were talking about what they were there to do and this whole idea of fair and impartial. Can you share with us, like you shared with me, what you did there?

Jon Bailey:

Sure. So when I stood up to begin jury selection, the judge had just mentioned about this idea of we're here to get a fair jury, and talked about bias and prejudice. And I stood up and I said, "Look, yes, we're here to get a fair jury, but our definition of fair and this company's definition of fair are very different." And we represented a local man who's this guy, at Christmas time, had four kids and worked full time, he would make these turkey legs and distribute them to all the people, the poorest people in the community. So I told the jury, "We are here to find people that share the same values that Oscar had, and they are here to find people that share a whole different type of values. And that's why our definition of fair is different."

Sari de la Motte:

I just love that, because as you and I were talking about, we don't really want a fair jury. We're not going back there and looking at our peremptories and going, "Well, this person's a little too biased toward me, so they should go because we want a fair jury."

Jon Bailey:

Yeah.

Sari de la Motte:

Right?

Jon Bailey:

Yeah.

Sari de la Motte:

I love putting it in the context of values. And it's just like what Rick Friedman talks about, right? Trial attorneys are fighting for human values versus corporate values.

Jon Bailey:

Yeah.

Sari de la Motte:

Love that. That's wonderful. So you did something that you hadn't done before based on some of the work and some of the podcasts that I did that you thought worked really beautifully well, which of course I want to hear about and so do our listeners. What was that one thing that you used in trial that you thought worked really great?

Jon Bailey:

So the flip chart or the easel.

Sari de la Motte:

Mm-hmm.

Jon Bailey:

And there was something about it that I wanted to try it. I was not totally sold on it, or I didn't... Not that I wasn't sold on it. I didn't know that it would have this kind of power. And we had a small one and my wife saw it and she said, "Eh, let's get a different one." So we got on Amazon and got this thing that it was on wheels, and it became a part of the trial, almost like a person in the trial. And I'm not saying this is smart, but in this trial, we use no visuals, no created visuals, and I'm not an artist at all. So this easel was it. And so, as we would make a point with a witness, I would write on there.

Jon Bailey:

And in opening, we worked on opening a lot, and so our teaching section, it was so beautiful to be able to turn and actually teach the jury. It allowed me to slow down. I'm naturally very emotional. And it enabled me to slow down and not let them feel like they were being sold but more being taught during most of it. And so, it was the whole visual that we used the whole trial. And so, anytime we made a point, it was written up there, every point.

Jon Bailey:

And so, when we got to closing, we could come back and say, "Remember, we learned this and this and this and this and this and this and this." So I would just say, if someone hasn't tried it, try it. It has some type of power to it that's very different.

Sari de la Motte:

Well, and I think you already pinged on what that is, which is, it feels very organic. So it makes you kind of Everyman. You're like, "Let me just show you. Let me write this down," instead of, as you said, the other side had tons of visuals, overwhelming amount of visuals, all PowerPoints, I'm assuming, and different things, where this feels very, "I'm just teacher guy. This is kind of so simple, I can write it for you. Oh, there's a great point. Let me grab that," kind of deal. Did it end up going into the jury room with them or did they leave it out in the courtroom?

Jon Bailey:

That was a mis... I don't know if I would say a mistake. That's something that I thought we could do differently, is as we made some of those, almost a summary, to rip it off and put a sticker on it and get the person to acknowledge it and then put it into evidence. So we did not. It stayed with us and then we just used it for closing argument.

Sari de la Motte:

How did you use it in voir dire? Because you said you started in voir dire with it.

Jon Bailey:

So in jury selection, if there was something I was going to talk about or if someone made a point, I believe I wrote a little. I really started it in earnest in opening. Opening is where I used it the absolute most. And so, literally, they're going to decide later on the jury charge. And so, I began by talking about those concepts, what was happening, where the different rig locations were and numbers, and really teaching there, I think was the biggest start.

Sari de la Motte:

Well, and it's just like the podcast that I had that just came out with the coffee rule. Right? If you don't say it at coffee, you're not going to say it at voir dire. You're not allowed to. It's this formality piece. Right? And so, what the flip chart also does is, it's less formal. You've got 14 lawyers over here with tons and tons of pre-made visuals, and you've got one or two lawyers over here who's just writing it with the flip chart or markers. It's such a contrast, particularly into the type of community that you were in and just the feel of it being very grassroots and just honest. I love that. Love that.

Sari de la Motte:

I do see some questions coming. We will take those here in a little bit. Keep them coming, whether you're in the Facebook platform. Of course, we'll take them in the Zoom platform first from our H2H members. So tell me about 120 million. Was that the ask in this case?

Jon Bailey:

Yes.

Sari de la Motte:

And how did you come to that number? Because I think there are people sitting here thinking, "Okay. This is basically a car crash case. And a guy fell asleep at the wheel. It wasn't even malicious." How the heck do we get to 120 million? Talk to me about that.

Jon Bailey:

And we explored this a lot about... I think it's a belief of, is that the right number? And for me, it's just a lot of thinking. And it sounds weird to even say it, but just a lot of internally thinking, does this feel right?

Sari de la Motte:

Mm-hmm.

Jon Bailey:

Not internally thinking, just feeling it.

Sari de la Motte:

Yup.

Jon Bailey:

Does it feel right? Yeah. And so, I knew that it needed to be more than $100 million, and it just felt like the right number. I wish that I had a better way to say it other than that. I believed that was the right number. Yeah.

Sari de la Motte:

Yeah. I always remember when we had our last mock jury in Midland for the dram shop case, and you stood in front of the jury because you were... We did a very interesting... Because there's three attorneys, one for each bicyclist in that case, and one would handle the trial dialogue, the teaching and the story... No, wait, and one person teaching one person's story and the other person on damages, and you were on damages, Jon. And you stood in front of the jury and you said, "We're asking for $100 million because, quite frankly, I don't have the courage to ask you for what I think it's really worth."

Jon Bailey:

Yeah. And that was true.

Sari de la Motte:

Yeah, it was true, and the jury just burst into tears. There were several people crying when you said that, and you were almost at the edge of tears. And we now get to 120 million. I always say that the number should be something you can own but a bit of a stretch where you're just like, "Eh." It's just like, "Am I really going to go in there and ask for this?" But yes, I think it's right. Do you think that's where you hit this number?

Jon Bailey:

I've adopted that before. This time, I decided to go the other way. I asked for less than what I... It has stretched the other way. In other words, the lowest possible number that I thought was still justice.

Sari de la Motte:

Yeah. Yeah.

Jon Bailey:

Yeah. That was enough-

Sari de la Motte:

Did you ask for the number in voir dire?

Jon Bailey:

So, I did not. And I've done it different ways, and there was part of me that really wanted to do that, but it just didn't feel right. So instead, I did it in a wholly different way of, I just said at the end of opening, after we told our whole story, and I said, "And at the end of this, we're going to be asking you for at least $100 million." And I just looked at everyone and nobody flinched or anything like that. And so, I thought that the time to introduce a number that large was, in this case, after they knew the story.

Sari de la Motte:

Mm-hmm.

Jon Bailey:

So that's why it felt that way. And historically, people viewed politics of Republican, Democratic, that you couldn't get large verdicts in West Texas because it's a predominantly Republican place. And so, that was kind of the old mindset. It turns out that Democrats love their children. Republicans love their children. We all love our significant others.

Sari de la Motte:

Absolutely. And as we saw with the three conservative juries when I was down there, from craigslist, every single jury asked, "Can we give more?" when we asked for 100 million. And in fact, when we were using the flip chart there, we would put check marks for every drink. We had planned to use glasses had it gone to trial. And we had several jury members say, "Every time you put a check mark on that flip chart denoting a drink..." I think that we had 43 drinks in two and a half hours. Maybe it was 63. It was something crazy. My verdict went up. So there's another place where the flip chart really helped with the verdict number.

Sari de la Motte:

So you had mentioned to me that you said the power is in the invisible. Tell me what you mean by that. Tell our listeners what you mean by that.

Jon Bailey:

So this case, this lady came to my office. And at the time, she talked about widow brain. She couldn't really get her hands around what had happened. I mean, she had this wonderful marriage. Her kids were... The last one was close to being out. And she just saw how just destructive this was. I mean, it was like a nuclear weapon went off in their family. Yeah. It was just so much there. And so, we got to know her and spend time with her and go to her home and eat dinner with her. And just, our relationship of the team here, we just all had this wonderful relationship with her so that when we got in court, I was asking her every day and her children, is this a good thing? Right? Is this a good thing? Because I can't bring him back. And they weren't destitute. So, is this a good thing?

Jon Bailey:

And the home that they lived in was across the street from their grandparents. And after the youngest one graduated, they all left and they couldn't go back because this place that was such a source of energy and light and love was just so cold. I mean, it was so cold. I mean, there was one time when I was there with her and we were walking around and she was showing me the house and different things they did, and when we got to the bedroom, she said, "Oh, there's boxes in here. We shouldn't go in there because it's too messy." But it was just so much pain.

Jon Bailey:

And so, what happened is, during the trial, for the first time, because this is a little town, they moved back in the home and they started to realize that they could still have love even though he was no longer physically in this world, and they could have love and their grandparents were there, and they saw the love from the community, willingness to show up. And so, the wife, the mother was... That was a connection.

Jon Bailey:

Two of the daughters were fighters, like their dad. And so, when they saw this contrast of good and us doing the right thing and them doing such dishonest things, it was something about that. They all talked about closure. They obviously talked about relief. They just talked about this love, and you could feel it in the room. It was more tangible than anything else. And so, I think it was that invisible.

Jon Bailey:

And the money in this process rubs it so badly. It hits all of us. We do it as a living. But it was what's right for her in this moment that enabled us to turn down so much money while the jury was out, because the community speaking had a value and it had a value that transcended money.

Sari de la Motte:

I'm going to share my screen. Can you all see that. Can you see that, Jon?

Jon Bailey:

Yes.

Sari de la Motte:

All right. So this is the photo of the family with Jon and the other co-counsel. And tell us, Jon, when was this taken?

Jon Bailey:

So this was taken the morning before closing argument and-

Sari de la Motte:

Okay. So I just want to stop and say, before the verdict?

Jon Bailey:

Yeah. Before the verdict, because we had all... What was interesting is, because it was this community deal, we had a trailer, like a travel trailer, that we would all meet in during breaks, and that was the way it was done. And everybody, to the family, and we all agreed that we had already won by fighting the way we had, by loving one another. We had already won. And yeah, they would like to see a verdict that reflected that, but it was this belief that we had already won.

Jon Bailey:

And so, to internalize that, I wanted to take the picture before closing argument to remember this was the real victory right here. Yeah, the money was good, but that was victory.

Sari de la Motte:

So beautiful. What, if anything, and I'm sure there's some, but what was the biggest learning from the From Hostage to Hero or from the podcast that you feel had any part to play in this? I'm not saying at all that I was the only thing playing in this, but what part did From Hostage to Hero have to play in this?

Jon Bailey:

I mean, I think it is that journey of love. Yeah. I know you don't like the word techniques, but there are techniques. There are things of... I would ask the jurors, "Do you want to be on this jury? What do I need to be worried about about you?" I hate to use that as a technique, but it is a little bit of a technique. Right? But this idea of just totally trusting.

Sari de la Motte:

Mm.

Jon Bailey:

Just trusting that it's going to be okay. That jury verdict doesn't define if we won or we lost. It doesn't. But how deeply we love and how much we pour into this and how much we drive out fear and bond and just love the people that we're there to help, and transform ourselves. That's what I take as your ultimate message in what you're trying to do, and to make the world better. And we're going to lose trials. The jury could have gone against us just the same. There's no magic.

Jon Bailey:

But I think, while I would've been irritated and not happy for a little bit, I'd still be a better person for having gone on this journey and they can't take away... The jury or whoever couldn't take away that love and that journey that we all went on together. Yeah.

Sari de la Motte:

I just love that. I love that. And I love that you changed from trying to over-prepare and put all your energy there, and put your energy in loving, loving this family, loving the process, loving the jurors, and trusting that it would all work out regardless of how was that picture, is such a great example of that, because I'm sure everybody here today assumed that picture was taken after the $120 million verdict was read.

Sari de la Motte:

And it's still incredible that we got $120 million for a wrongful death. I mean, it's hard enough to tell the jury, "Here's this money that's going to help this person," but here's this money and the person's gone. What do you think was the tipping point, before we go to questions, which we will in just a moment, to get them to give or allow money in their verdict for someone who's no longer here?

Jon Bailey:

I think it's just a mind shift. So once you're past this idea that we are here about how much money he would've made and that kind of thing, once we're past that point, I mean, the jury charge asked them to award money for the loss of love. Right?

Sari de la Motte:

Mm.

Jon Bailey:

Well, I mean, we talked about... And there's this attorney, Rex Parris, that I'd listened to.

Sari de la Motte:

Mm-hmm.

Jon Bailey:

Rick Friedman, by the way, his book about The Way of the Trial Lawyer, huge impact on me.

Sari de la Motte:

Yeah.

Jon Bailey:

Huge impact on me. But anyway, Rex Parris talked about this idea of, what are the diamonds in your life? And so, when you start talking about those and you think about every one of those moments, really, if we're really honest, $120 million is not a shocking verdict at all. It's most likely low. I mean, we had people that... what they said their diamonds were were family and faith. Well, they destroyed their family. They destroyed everything. Well, if the jury really does what they're asked to do, why would 5 or 10 or 15 or $20 million be fair for what was taken from these people?

Sari de la Motte:

I love that. And basing it all on love, and what a great way, instead of going, "What are your hobbies?" to find out and dig in, because people are like, "Well, you hate the hobby question. Sorry, but how do you get to damages?" That's how you get to damages, when it's in the voir dire and it's appropriate and you've already talked about some things, you've got a conversation going. In this case, something was taken. Let me ask you about the diamonds in your life. It makes total sense there. Total sense there.

Sari de la Motte:

And Jon, I've seen you work damages and you're brilliant in both voir dire and in opening in there, so I could already know the way in which you were being nonverbal in those moments. Well, we've got some questions. You up for taking some questions?

Jon Bailey:

Sure.

Sari de la Motte:

All right. So first question. "I would like to hear more about your team and how that was set up and organized."

Jon Bailey:

... who had a major impact in this case but also in my life. That person would have to be Pat Montes. Pat Montes introduced me to the psychodramatic method, and really was the person who first got me on the road of seeing things in a different way and really seeing the unseen. Pat worked with the family in this case and brought tremendous healing to them, but she's also worked with so many other families and people that have been hurt in my other cases and for so many other people. I believe it would be nothing short of malpractice to try a case like this without visiting with Pat and allowing her to work with the family, and more importantly, to work with us.

Jon Bailey:

I just can't overemphasize that enough. So one of the attorneys that was involved in this, a guy named Jeff Befort. And Jeff and I went to law school together and we had done a lot of cases together, and he'd gotten somewhat disenchanted with the law practice. And he had called me and said, "Hey Jon, I don't know if I'm going to keep doing this, but I want to do one more case. Do you have one that you think would be a good journey for us to do together?" And I thought about it and prayed about it, and this case came about.

Jon Bailey:

And once he got involved, he spent probably 80% of his time on nothing but this case, and just in a dogged search for the truth. And I used to hear lawyers say, "Well, you don't want to take that one extra depo because what if it's something that's not good for you?" I just don't believe that philosophy. I think you search for the truth all the way down. And if the truth leads that you shouldn't get a jury verdict, well, then that's okay. And so, you-

Sari de la Motte:

Mm-hmm. Because the truth is the truth.

Jon Bailey:

The truth is the truth. Now that's harder when you have hundreds of thousands of dollars, but it's still right.

Sari de la Motte:

Mm-hmm.

Jon Bailey:

And we're either on the side of right or we're not.

Sari de la Motte:

That's right.

Jon Bailey:

And he kept ordering records and taking more depositions and pushing me to say, "No, we don't know." We never did totally find the truth because they obscured it so badly, but his work was just unbelievable. There was another attorney, Chad Elkins, that was a local from that community that helped me really understand, I grew up in a similar town but not exact, what mattered in that community, what were the values in that community that meant something. And he was just integral in that from the beginning of the process all the way through, as far as the attorneys.

Jon Bailey:

We had good appellate lawyers that helped us as well. And then our team in the office, we have just wonderful people. One of the people, her whole goal is, she develops stories. She's a storyteller. So she visits with the different people that knew him before. One of my legal assistants, she actually crafted the closing argument because she had a more difficult time getting to why he was working than the rest of us, but eventually she got there. So I thought to myself, "Well, why not have her write the closing argument instead of me?" So then that way, we structured it in a way that got her there. Well, why not do it that way? So she wrote the closing argument.

Sari de la Motte:

What I'm hearing here is, the common theme is trust.

Jon Bailey:

Yes.

Sari de la Motte:

You trusted your team, you trusted the jury, you trusted yourself. Right? There wasn't this control and over-preparing. And this is what I hear from all of these trial debriefs that we do, people who've gone through the method, or I've worked with them. It's like, there's a letting go.

Jon Bailey:

Yeah.

Sari de la Motte:

When they finally get their verdict, they're like, "Oh my God, it was so much easier and so much more fun than I ever made this up to be." And I keep saying this. I keep preaching it in the podcast, but you guys don't get it until you get it. Right?

Jon Bailey:

Yes.

Sari de la Motte:

When you get it, then it's like, "Oh, that's what she's trying to be telling me this whole time." It's so much easier. So I'm hearing this trust here.

Jon Bailey:

And people without a law degree... My 16-year-old son, he did some work in the summer and found one little thing that was very helpful. I had two people that were in law school. They had great ideas. And we got as many people and their ideas, different backgrounds, different gender, different races, just all kinds, in that culmination, is something that is just far more amazing than when I first started. Every trial lawyer, has a big ego, and I thought, "Well, I know how to do this. And so, y'all just need to sit there and wait for my wisdom." Golly, that's just terrible. And now that collective wisdom, just like the collective wisdom from the jury, it's more fun and it's like opening Christmas presents.

Sari de la Motte:

I love it. I love that, my friend. Shelly, a fellow Texan. "How did you explain the number to the jury or did you?"

Jon Bailey:

First of all, Shelly's an unbelievable lawyer and I have tremendous respect for her.

Sari de la Motte:

We know it. Yeah.

Jon Bailey:

I wish I had a way to do that other than that. I told him that, "I believed in my heart that was the right number."

Sari de la Motte:

I love it. I love it. It's so much more simple because, "What's the formula? How am I going to explain it to them?" Sometimes just saying... Building the credibility with the jury, and how do we do that? It's not through gimmicks. It's not through any of that. It's just getting up there and talking and being truthful and honest, and then saying, "I believe this is the right number." But I remember in the dram shop case, and you used this word here today too, this idea of journey.

Sari de la Motte:

In that case, when we tried to explain the 100 million, we said, "We've been on a journey with these families for the last two years, and through that journey, we believe it was 100 million." But you're now going to go on a journey and you're going to have to come up with your own number, but that's the number we came up with on our journey, and that just made sense for them.

Jon Bailey:

Yeah.

Sari de la Motte:

Yeah. I love it. I love that. Every answer, you're like, "I just felt it." I love it. Shelly's also asking, "Did you submit any economic damages?"

Jon Bailey:

We did not. That was one of the only things we'd eliminate out. They had eliminated 95 different things and we had two. And that was one of the things that we didn't do. And I don't know how I feel about that. That's probably more strategic. And I know a lot of lawyers talk about anchor points and all that, but I think it's more of a focus of, look, we weren't in that courtroom, or in that community building, because he wasn't earning a living anymore.

Sari de la Motte:

Exactly.

Jon Bailey:

We were there because they lost their life. And so, I didn't want to cheapen it by focusing on, did he make this much, and all the economists and everything. I just wanted to talk about what was real and the most important thing, so no. The answer is no, we did not do damages.

Sari de la Motte:

I love that. It's so real and it's so honest and it's so what I talk about, where whatever you focus on, you make important, period. So you were there for love.

Jon Bailey:

Yeah.

Sari de la Motte:

It was the loss of life. It was loss of love.

Jon Bailey:

That's right.

Sari de la Motte:

And that's what you were there for, and that they put a value to what love meant, not what even the life meant, but what the love and the loss of that love, what that was going to mean to this family, and what it meant to them as a community. Rob is asking, "Can you say more about this whole what-do-I-need-to-be-worried-about piece when you asked the jury that?"

Jon Bailey:

Oh, yeah. When we were talking to him in jury selection, if I got any weird vibe when I was looking at the person, I would say, "Look, this is real important. And I represent Laura and her kids, and we're going to be here for a week or two. And is there anything in your heart that I should be concerned about putting you on this jury to fight for justice? Is there anything that I should be concerned about?" And some of them would say, "Yeah. I don't..." They would have problems with the emotional side of it. "I don't know if I'm right to sit on this kind of jury," or something like that.

Jon Bailey:

And then some of them, you get to see in their eyes. They were just saying, "Look, I don't want to sit here because I don't want to be here for 10 days," because of whatever reason. You could see they wanted off the jury. And I didn't do that with every one of them. More often than not, it was, "Do you want to do this? Do you want to be on this jury?" And they would say, "Yeah, I can do this." That kind of thing.

Sari de la Motte:

Have you ever asked anybody before if they wanted to be on a jury?

Jon Bailey:

No, I have not. That's totally from you. And I actually thought it was weird even up into doing it that morning, and it just came out just emotionally like, "Why wouldn't I ask you? Do you want to do this for 10 days? Do you want to do this?" And what I was really saying to him is, "Are you ready for this fight?"

Sari de la Motte:

Yeah!

Jon Bailey:

That what I was saying.

Sari de la Motte:

It's like a rallying call.

Jon Bailey:

Yeah.

Sari de la Motte:

Yeah.

Jon Bailey:

That was it.

Sari de la Motte:

Mm-hmm. Oh, I love it. And you had some people say no.

Jon Bailey:

Yeah. They said, "No, no, no. I'm ready to go home. I don't want to do this." Okay. I respect that.

Sari de la Motte:

Did you get anybody on the jury that didn't want to be there?

Jon Bailey:

There was one lady that ended up being on there that didn't want to be on there. There was one lady.

Sari de la Motte:

Yup. Yup. And that happens. That happens because we don't have full control.

Jon Bailey:

Yeah.

Sari de la Motte:

I don't see any other questions. If there's questions from Facebook, you can post those and Kristi will grab them. What advice might you have for lawyers who are scared, scared of the jury, scared to trust their instinct, scared to trust their staff? What would you say, Jon?

Jon Bailey:

One of the things I would start with... And it seems like so many of these I listen to. People always come back to this. But I would get Rick Friedman's book on The Way of the Trial Lawyer, and I would really read that and meditate on it, because I think that there's so much fear in what we do and it just stops us from so much good that we can do in the world. And look, I had a lot of fear. I mean, I woke up one morning, at 3:00 in the morning, just literally scared.

Jon Bailey:

For me, I pray a lot and I heard in my mind that the reason I'm so scared is that I don't trust enough, and I think that's it, that it's going to be okay. Even if the jury says, "You lose," okay. Well, it's okay. But I think understanding money, money has such a big fear point for us because, on the one hand, you got to have a team and all this stuff, and to do these battles, you have to have money. But money can dominate us too much, and then we think, "Well, what happens if we lose?" We turned down over eight figures on this case while the jury was out.

Jon Bailey:

And the thought could be, "Oh my gosh, what if you lose?" Blah, blah, blah, blah, blah, blah, blah. And that's what all the adjusters were telling me on the phone from New York, and I said, "You know what, if we lose, they've already lost their husband and their dad." So all we're talking about is money. And I think just really understanding that, to me, is... And working through those fears. There's so many different fears, and I think that Rick Friedman does a really good job in that book about... And you talk about this constantly.

Sari de la Motte:

Yeah.

Jon Bailey:

I think that's it, because without that, I mean, you go to all these different vices of overeating, and I did overeat. That's one of the things that... But you yell at people, you drink too much, whatever.

Sari de la Motte:

Yeah. No. What I'm hearing you say is it's a mindset shift, which is what we preach all the time at H2H. We don't care how you get there. We love Rick Friedman. We're here to help, but however you get there, we want you to have that mindset shift change, because notice how Jon or anyone else, if you've been around here a while, been watching the trial debriefs, are not telling you about all the techniques they've learned. Nearly everybody who comes through says, "I shifted my mindset and that's what made the difference. That's what finally got me over the hump. That's where I finally got my eight-figure or nine-figure verdict, is I finally shifted my mindset." And that's what we keep preaching around here, and I'm so glad that you all come in not to say how right I am, but that you're having this success.

Sari de la Motte:

And it's not even about the verdict. That's what I keep hearing from all of you too. It's like, "That looks great, but this was more fun. I had a more enjoyable time. I wasn't so scared." And yeah, of course those moments are going to come up. Right? They need to be fearless.

Jon Bailey:

Yeah.

Sari de la Motte:

Courage is doing it and being scared anyway. Right? You just have to manage that fear as it comes up. Okay. We've got some more questions coming in. So Joon, our coach Joon, is asking, "When you asked if they wanted to be there, did you ask each individual or did you ask the whole group?"

Jon Bailey:

So I didn't ask the whole group. Partially, it was... There were so many. And the judge had... He didn't give us a strict time limit, but he was kind of like, "Hey, let's go, let's go, let's go." So I didn't. I used it more as a individual, more of a rallying cry. I didn't think of it until just now, but it was more of that when I would see them, and I was like, "Are you going to fight for justice kind of a person?"

Sari de la Motte:

Yeah. Are you ready? Let's go.

Jon Bailey:

Yeah. Are you ready to do this? It was more of that.

Sari de la Motte:

I love it. "When did you first realize that the group had been formed and what was it that you did to facilitate that forming other than your amazing personality of course?"

Jon Bailey:

Yeah. I really think the group started to form with the first question that we asked, because I could feel that they saw that I wasn't BS-ing. I wasn't coming up and ha ha and kind of doing some jokey joke or flirting with them or whatever you see lawyers do.

Sari de la Motte:

Hobbies.

Jon Bailey:

Yeah. No, it's just, "Look, I'm not going to waste your time. Let's just get to this." And one of the things we got to, then it really started to form the group, is their witnesses had... Several of them just... I mean, I always get nervous about saying lying, but they just didn't tell the truth under oath. And so, when I started asking people, some people say, "Hey, when I put my hand and I swear to God, that that really means people." Other people say, "Eh, well, you do your best, and if you fudge, you fudge." And that really is when the group started, I think, coalescing because they're like, "No, when you put your hand and swear to God, you better tell the truth. None of this fudging around."

Sari de la Motte:

Love it. "Did you handle trial negotiations or have someone else do that? It's so distracting in trial."

Jon Bailey:

Yeah. I have heard of people doing that, and I think if you could detach it and have someone else do it, it'd probably be better, but I did it. And it was good for me because it just made me constantly say, "What are we doing? Am I doing this out of my own ego? Am I doing this out of my own greed? Am I doing it out of my own fear?" So I did the negotiations during it and I found it to be very... It was a cathartic process for me.

Sari de la Motte:

Yeah. Very grounding, it sounds like.

Jon Bailey:

Yeah.

Sari de la Motte:

Just kind of coming back to your touchpoints, your touchstone. "How did the judge handle the other side asking about vaccination status?"

Jon Bailey:

He was very stern about it, because he had just warned him because the guy did the mask, trying to connect with not wearing a mask. And so, he shut him down on that. And then right after that, he threw his hand up about vaccination, and the judge said, "No, we're not doing this. This case is not about who's vaccinated or not." And so, I think that, while I know what he was trying to do, he was trying to really divide, and if he could have just got a few people that really connected with him, but instead I think he lost a lot of credibility because people know that's an extremely personal decision and it cuts through all kinds of things. And it felt very much what it was. It was pretty transparent. It was a good thing. But obviously, some jury consultant, somebody has told him that was a good idea.

Sari de la Motte:

Yeah. Somebody, because that's just-

Jon Bailey:

But we may start seeing more of that.

Sari de la Motte:

Right. Well, especially as we talk so much about forming the group. The defense may be like, "Well, look, how can we throw a grenade in there?"

Jon Bailey:

That's right.

Sari de la Motte:

And I think it's going to backfire on them quite frankly, so let them try it. You're getting a lot of love in the Facebook group right now from your Texas people. Kristi Kastl is in back there, Robert Killenberg, Rickey Brantley. I'm sorry, I'm just absolutely murdering those names. They're all sending you love from over there. I just want to thank you, Jon, for first hiring me way back when and having that dram shop case I just keep talking about. Now we can just keep talking about this case. And I'm just so, so grateful for your support of my work, but also for your transformation.

Sari de la Motte:

It's bringing me such joy to see you in this position, again, not about the verdict, but where you are standing right now in this place of love and love for your client, love for yourself, love for the process. So thank you so much for being here.

Jon Bailey:

Well, thank you. Yeah. There were so many lawyers and you, and just a lot of people that reached out after this, and you realize that I think that's one of the things on this side of the docket is, we are in it together.

Sari de la Motte:

Mm-hmm.

Jon Bailey:

And you realize there's a lot of people that care and want us all to do well. Yeah. It's so much better than being on the other side of this.

Sari de la Motte:

Absolutely. Absolutely. Well, good to see you, my friend.

Jon Bailey:

Okay.

Sari de la Motte:

Love to reconnect. And go enjoy your success, and thanks for being here.

Jon Bailey:

All right. Y'all take care. Thank you.

Sari de la Motte:

All right. Bye-bye.

Jon Bailey:

Bye-bye.

Sari de la Motte:

Thanks for joining me today. If you benefited from what we talked about or just want to let me know you enjoyed the podcast, go ahead and leave me a review on whichever platform you use to listen to From Hostage to Hero. Add a comment and I just might give you a shout-out on an upcoming episode. In the meantime, head over to fromhostagetohero.com to order your copy of my book, From Hostage to Hero: Captivate the Jury by Setting Them Free, and to get on my mailing list. I send out trial tips and encouragement right to your inbox every single week.

Sari de la Motte:

And while you're there, make sure you join the wait list to become an H2H Crew member when we reopen. We only open a few times each year and you do not want to miss out. I look forward to our time together in next week's episode. Talk then.