Encore Special Debrief – How Scott Maucere Won a $2M Fraud Verdict Using H2H Trial Techniques and a Pink Pig

Bringing back one of the MOST popular debriefs EVER on my podcast.

Scott Maucere had a complex securities fraud case — three state laws, seven claims, and 11 defendants.

And he shaped it into a sharp and simple story the jury didn’t JUST understand… they BELIEVED in it.

And yes… he brought a pink piggy bank into court, pulled out a hammer and made the jury GASP. 🐷

Verdict? 

$2M, including $1M in punitives.

Here’s what Scott shares:

👉🏽 HOW he distilled a legal jungle into 3 simple jury rules — so clear they quoted them back in closing.
👉🏽 WHY trying to “persuade” the jury is the wrong move — and what actually works.
👉🏽 WHAT happened when he pulled out a hammer and made the jury gasp.
👉🏽 HOW honest voir dire, designed alliance, and a COVID delay turned strangers into a team.
👉🏽 WHY giving up your “brilliant ideas” might be your smartest move.

This episode is PACKED with heart, strategy, and proof that fun and truth still WIN in trial.

Love,
Sari 💖

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“You don’t have to be a magician. You don’t have to persuade people that lying is wrong. You just have to give the jury the truth and let them act. I went in with three simple rules: tell the truth, don’t cover things up, and if you do—make it right. We treated the jury with respect, let go of control, and they showed up every single day, even after COVID delays, because they wanted to do the right thing.” 

Scott Maucere

TRANSCRIPTION

Sari de la Motte:

Great welcome. Welcome, everybody, and we are here with Scott Maucere. Did I say that right?

Scott Maucere:

Very good, thank you. Maucere.

Sari de la Motte:

Very good. Okay to talk about his recent win and how H2H had a part in it. So we're very excited to talk with him. If you are in the H2H crew, you can be on Zoom with us, which many of you're coming into the room right now. We will take your questions first, and if you are on the Facebook platform, welcome to you. Let us know where you are listening from, and if you have any questions, Christie will grab those and put them in the chat over here in the Zoom platform. So, Scott, welcome. So glad you're here.

Scott Maucere:

Thank you for having me. I'm super excited.

Sari de la Motte:

Yay. So, tell us a little bit about, first, how did you come into the H2H universe to begin with? How did we get connected?

Scott Maucere:

Sure. So I heard about your podcast. I think you did an interview with Michael Cowan, one of your many very good interviews on Travel Lawyer Nation. And I was like, this lady is... Well, let me back up and say I am not a fan of fluff. I'm not a fan of feel good. I'm an asshole. I'm a professional asshole. That's what I do for a living. I don't have time for feel good-

Sari de la Motte:

Aren't we all? Yeah, no, no.

Scott Maucere:

We all are. We all are. I don't have time for self-help and coaching and things, but you were actually providing answers. I was like, I need to go find where this lady is talking on her own. So I found your podcast. I immediately bought your book. It's dog-eared. I bought copies for everybody in the office. I made them highlight everything. I said, "This is what we are going to use." And I knew I had a big trial coming up. So I don't. Our practice is a little bit different than probably a lot of your members. I do a lot of plaintiff law. It's all complex business law. So as a result, there's no cut and dried here's the insurance company on this side, here's the plaintiff on this side. We usually represent a plaintiff that has been defrauded.

Sort of my practice focus revolves around business fraud. So, securities fraud in particular, bank fraud, investment, or other contract fraud. That's sort of where we live. And as a result, there's not a lot going on in the plaintiff's world. There isn't a good business plaintiff's bar. So I have to kind of use the principles that I learned from my personal injury friends and sort of apply them in this instance, in which case they worked very well. It's the same principles, the jury are the same people that same things. So as a result, because of that, I became... I ravenously devoured everything you put out, basically. So that's how-

Sari de la Motte:

We love that.

Scott Maucere:

... I became acquainted with you, Sari, because you were speaking things that I heard that were true. It was like that makes sense. Finally, someone is saying things that make actual sense in front of a jury.

Sari de la Motte:

Okay, well, what was making sense and what didn't make sense? Up until we came in contact, what was not making sense for you? [inaudible 00:04:38]-

Scott Maucere:

I don't have any answers. Literally, the things that I had had, and it's not just you, although I think you are at the very front of the wave. There's David Ball, 15 years ago, was saying amazing things that I still draw from today. Rick Friedman he was saying amazing things that I definitely drew from, but in particular the idea that groups think in a way to self-preserve the group, and you are not going to go against the group. It's like, of course, this is how we should be addressing juries. How come no one has said this before? And that, in particular, how do you create the jury to think as a group? And the crazy thing is, it makes so much sense. How come people were not saying this 30 years ago? Every juror that I've ever met believes the same thing that my mother that my grandmother believes. Right is right, wrong is wrong, and if you can harness those principles for you, they'll do all the work for you, and that's what was released. So speaking to me, I was like, this is right. We need to use this.

Sari de la Motte:

So we talk about a lot about how the jury can solve your problems if you let them, but that's a big mindset shift is to let these people actually help you instead of viewing them as the enemy that's going to kill you and you got to kill them first. And so what mindset shifts did you have to make going into this trial after you kind of came in contact with this information?

Scott Maucere:

One of the big things was, so I'm in Tennessee, my practice way, I have an office in Nashville, but I'm in the Chattanooga office. So we're in Southeast Tennessee, it's the reddest of the red states, and that's very comfortable. My family is pretty red. That doesn't bother me at all. But jurors are to be conservative, they're extremely conservative in this county. And so I was always taught, ask them what kind of bumper stickers they have on their car, ask them what kind of magazines they took in. And I quickly was like, this doesn't get me anywhere because it's not a left and a right issue. Maybe today, not withstanding in the news, but fraud is fraud.

Sari de la Motte:

That's right.

Scott Maucere:

Treating people dishonestly is dishonest. Whether you are left whether you are right, these people all think the same things. They're normal American people, and you don't have to go to the left or the right to find those things. So half the things I've been taught to ask people in voir dire didn't matter.

Sari de la Motte:

Well, that's so true. We just had a training right before this in the crew on voir dire and how to win your case in voir dire. And we were talking about this very thing is that people don't stay in the boxes that we create for them. So we can ask what their bumper stickers are, what magazines they're reading, or what news programs they're watching. And then we make up stories of what we think that means, and we are often wrong. And so what I'm always telling people is, why are we making this so hard on ourselves? Why don't we just go in and ask them what they believe instead of asking them what they're reading? Let's just cut out the middleman and go for what, as you said, your mother and your grandmother, and we all as Americans tend to, of course, there's some people who fall outside of that tend to believe and rally around. It's so much easier, I think. So, tell us a little bit about this case. So what were you up against?

Scott Maucere:

Sure. So in this particular case, this was primarily a securities fraud case, and my background is securities regulations. So that's why I kind of get drawn into these because I understand the way that both federal and states regulate securities fraud. And the big thing is you have to tell the truth. And so that was one of the overall themes that we develop. But in this case, it was an elderly woman; she's feisty, but she's probably 75, 76, and her adult son, who's in his fifties, they became acquainted with a group of people that were starting an extended car warranty company. And they were-

Sari de la Motte:

Oh, the calls that we get all the time... Yeah.

Scott Maucere:

And this was slightly different, but more or less, yes, extended car warranty business. They were induced through the use of what's called a private placement memorandum or a prospectus that was pretty explicit and ended up being our smoking gun. The document contained more than two dozen explicit promises about what would happen if they invested money, where, in particular where that money would go, and how it would be used and how it would come back to them. So they invested, they were induced to invest about a quarter of a million dollars into what they were told was a holding company. But it turns out that the defendants, and there were 11 defendants.

So we had six entity or company defendants, and then we had five individual defendants who were the founders, essentially, of this group of companies. They were told they were putting money into a holding company, and in the private placement memorandum, there was an infographic that had this treat that showed the holding company owned this group of subsidiaries, and here's how the money would come up. Well, it turns out that the holding company didn't actually own any of the subsidiaries. It was, in fact, a worthless shell company, and so one of our challenges was that traditionally in an investment fraud situation, you have a situation in which the money is lost, it's gone, and you're trying to get back money.

In this instance, they made a fuck ton of money on the investment that they made. The company took off, made a bunch of money, they didn't pay back that money to them because they told them, "Oh, your shares are worthless. This company, you didn't invest in anything that had any worth." So they sequestered that money off to the side and induced them to invest in a shell company. And so that's why we were suing them. And so we went to a two-week... Well this really was a four and a half year journey. We went to trial in August. It was mistried two days into trial because of COVID.

One of the defendants, who I should point out was convicted four times for fraud in the past, came down with COVID magically on the second day of trial. And the trial it was forced to mistry because we had a jury seated. The judge said, "I don't care if it turns out he doesn't have COVID, this jury will not sit here. They will not want to be in a courtroom with someone who had had COVID or potentially had COVID. And so I'm going to have to disband the trial."

So mistried, it's a huge ordeal. We had to retry it in February, and so in February we went a two-week jury trial ended the first week of March, and we walked away with a successful a $2 million jury verdict, which included a million dollars in punitives. And that's not as impressive as some of our colleagues who have nine-figure verdicts. But in a business world where pain and suffering is not on the table, a significant verdict in a very, very red county, it is a very rare thing to see any punitive damages, much less seven-figure punitive damages. So we were quite satisfied and proud of the outcome.

Sari de la Motte:

A win is a win, right? I just always say that it's wonderful to have that win. So what were some of the issues that you had to deal with, particularly with the jury? So I know some of the things that you had shared with me in an email is that one of the problems was there was a lot of complex information that you had to get across. So, how did you end up doing that?

Scott Maucere:

Sure. So we sued under something like, I think we went to trial on seven counts of various state securities fraud, breach of fiduciary duty, different theories of common law fraud. We had to distill that all down. So one of the big things that we did was spend a lot of time, how do we take these very complex issues. It's so difficult. Certain counsel that had been involved with the case at different points of time didn't always understand how do we take this and explain this to a jury in a way that makes them understand? And so we took this down to two things, really distilling it down to three rules and distilling it down into words that made sense to the jury.

So the three rules that we had were number one, all companies that take investments have a duty to tell the truth to their investors. Rule number two, all companies and their directors have a duty to not conceal or cover up material information that affects the investor's investment. And rule number three, if you break rules one or two is you have to make it up to those investors by paying them what they're owed. So we used those, we really turned into two sort of principles and then a remedy or a fix, we called them duties, and it made sense because now we're suddenly talking about we're telling the truth.

I mean, everyone tells their four-year-old, and I have a six-year-old and nine-year-old at home. Tell the truth. You have to tell the truth. Everyone understands that. They understand that ethically, you have to tell the truth. So we ended up we took those three rules, and what we did is I used the chart, I hand wrote them out. I got some feedback that it takes so long. Someone from our trial in August told us, said It took so long for you to write that out, but at the end, I understood I got it. He said, "You were right for taking the time to write it out." Even though I was like, "What are you doing?" At the end of the opening, I understood what you were doing. So we took those three, we put them on big gigantic Post-It notes, like the kind you can stick on the wall.

Sari de la Motte:

The flip charts. Yeah.

Scott Maucere:

We pounded them to death over and over. We asked each defendant, we put on the stand, do you think companies have a duty to tell the truth to their investors? Every single one of them admitted, yes, of course they do. Do you think that a company has a duty not to conceal or cover up material information from those investors? Yes, of course they do. And do you agree that if a company breaks either of those two principles that they should make it up to the investors by paying them what they're owed? Every single defendant, as prepped as they were, and these are fairly sophisticated individuals, admitted that got us to admit the three rules. They validated those rules early on and throughout the trial. So when it came time to get to closing, it was just a matter of putting them up and saying, "Took, they're the ones that told you that-

Sari de la Motte:

That's exactly right. That sounds very much like Rick Friedman. So these are the rules, and they either have to agree with them or look stupid disagreeing. So that's the beauty in it. And as you know, and so many of our attorneys know that it's difficult to get it that simple. I mean, once you have it, it's like, of course, these are the things we should have always led with. But man, we start with something so complex, and when we really look at our cases and we start getting really clear about how simple they really are, they really are about principles that anybody can... We were just teaching on principles today. Principals are fundamental truths, like you said, we teach our kids, tell the truth, be truthful, don't lie. People can rally around those principles. So how did you... Go ahead.

Scott Maucere:

No, I was just going to say the distilling down was the key, and well, we probably spent 200 hours just distilling these down, and we had more than a hundred rules and regulations about the sale of securities, and we had Delaware law, Tennessee law, and Florida law. So we're dealing with three state laws. We elected not to file under federal rules for different reasons. We had three different state laws, all of which said different things. How do we still distill them down into something that opposing counsel isn't going to object to, that it's not an accurate restatement of the law, but we got it. It worked ultimately at the end of the day, it just took a lot of effort, and that's a lot of [inaudible 00:16:59]-

Sari de la Motte:

And they sound so simple, but I think you have to go through that process because we get so lost in the weeds. There's all these different jurisdictions, there's all these things that we have to deal with that, there's a hundred different rules, and it's like, really, what's true here? Right? Don't lie, don't hide things, and if you do, make it right. So it really comes back down to that, but I think you have to go through the process. So, talk to me a little bit about jury selection. So you did try, you told me the famous designed alliance, and this, for those of you who are watching, and don't know what that is, where you design with the jury, and it can look different. There's a template in the book, but it can look however you want to look, with how this process is going to go. So I'm very interested to hear how you designed with the jury and how that went.

Scott Maucere:

Sure. So by the time I got to some of the voir dire questions, I was little... I had not as much time as I wanted to, even though I'd had obviously six [inaudible 00:17:55]. But I used your template because I couldn't think of anything necessarily better. But with the addition of, because we're talking about the truth, I used Nick Rowley's Brutally Honest.

Sari de la Motte:

Brutal Honesty.

Scott Maucere:

So I talked about, I'm going to try to get you what you want, but one more thing I want you to commit to me to being brutally honest. I'm going to be brutally honest with you because this is a case about telling the truth, and those were some of the first words out of my mouth in the jury trial. This is a case about telling the truth. Use that, I would say, with practice and with doing this for many, many years, it will get better. One of the things I forgot to do is we got so involved with the jury, I forgot to ask them at the end of the day, and now who at the end of the day who wants to-

Sari de la Motte:

Wants to be on the street?

Scott Maucere:

Who wants to be... You know what, though? It didn't matter. The jury was remarkable. We loved our jury, and one of the things I made sure I did was I learned every one of those jurors by name, and every day I thought about those jurors and I thought, what are they thinking? What are they going to want to know? And I personalized each one of them, and I thought that was incredibly helpful. When I got to closing, I wasn't talking to 42 and 64 and 36, I was talking to Bill and Mr. Hardin and Tammy, and that I thought created meaningful impact. But our jurors, I was shocked how much they ate up this by any standard boring ass case about a bunch of people who shouldn't have been investing in extended car warranty business in the first place. They ate it up because of us. I believe a lot of it was credited just to we were able to form that group in the jury selection. What do you guys think?

Have you ever gotten a call from an extended car warranty company? Oh, tell me about that. Why is that important to you? If you had a chance to speak to those companies that called you, what would you say to them? What would you do to change things? From the beginning, we were talking about accountability and what can we do to change the things that we all know that nobody likes, extended car warranty companies. We were able to sort of establish that group early on. Now, when we tried the case in August, I had a very concern because there was no group that was being formed. I liked my jury, but when they were in paneled, they were told, because we were still under more strict COVID protocols, not to sit near each other. So as a result, the jurors, I think, took what was a concerning but fairly reasonable rule about social distancing. They took it way too much to heart, and as a result, they wouldn't even talk to each other.

Sari de la Motte:

Well, that's what we talk about the jury or group's form through interaction.

Scott Maucere:

Exactly.

Sari de la Motte:

If they don't have that interaction, they're not going to form.

Scott Maucere:

I was very concerned when I saw them out in the rotunda of the courthouse reading books by themselves and being separated. In this case, after we finally picked the jury, we broke for a late lunch. I saw three of the ladies go to lunch together. I thought Sari would like that. They're forming a group.

Sari de la Motte:

I love it. Yeah, we're forming the group.

That's great. That's great. I got to go back though because everyone's wondering, so in the design alliance, did you do the part where you said, now I want to find out who wants to be here and who wants to go home and I can't guarantee that you'll be able to go home, but are you still wanting to talk to me? Did you do that in there?

Scott Maucere:

I did that. I was not as-

Sari de la Motte:

Were you objected to?

Scott Maucere:

No. No objection. Judge had no problem-

Sari de la Motte:

Everyone's freaking out that oh, you're not going to be able to do it. There's another example-

Scott Maucere:

No, I had a judge that will tell you upfront, counselors, I like my lawyers to try their own cases, but I did not feel that... Either in August or when I did it, and they had had six months to think about what I had said the first time, I didn't get an objection the second time. I didn't get any objections to any of your type stuff in jury selection at all.

Sari de la Motte:

Well, I love hearing that. How did you let the jury solve some of your problems? Give me an example of that.

Scott Maucere:

Yeah, if there's one overarching theme of our conversation today, it's do what you need to do and don't sweat that. So one of the things that we did, as I thought early on, I was able to build some capital with the jury. There was a guy who clearly did not look like he belonged. I could even smell him from where I was standing in the jury. He was head down, he didn't want to answer questions, he didn't want to participate. I finally got to him, I have to ask this guy some questions. Turns out he was basically a recluse who was dragged to court against his will, and his father lives in his house and is dying, and he cared for his father, and I painted a very tough picture. And he told the court he didn't think he wanted to be there. So rather than sort of wait till the end where you make your things on the chits and you make your selections or your... Gosh, it's been-

Sari de la Motte:

Preempteries.

Scott Maucere:

Yes, your preempteries, I made a motion to dismiss him for cause and the judge didn't agree with me. He said he hasn't ultimately did dismiss him for cause but would not dismiss him right there. But I thought the fact that I showed early on I was willing to give someone up because it was better for them. I thought that that built some capital with the jury. It built some credibility. Later on in the middle of the trial, so we had, in addition to being mistried in August, we had a juror come down with COVID. He got dismissed, and we adjourned for a week through the five-business-day COVID period. And we did not know whether anyone would come back, and the court said if we don't get 11, or I guess at this point, so we had 14, so we had two plus two. If we don't get our 12 jurors, we're going to have to have a serious conversation about mistrying.

13 jurors were there on time, and it was because we had built enough of a group they wanted to come back and help. And they all said that. They all said, "Your Honor, we want to be here to do the right thing." Later that day, someone's family member died on that jury, she [inaudible 00:24:46]. So we were cut then to 12 and she specifically requested the court permission to come back, and the court wouldn't let her, said, "No, you need to be with your family." But they were that... We built investment with the juries by making the jurors feel like they mattered. We distilled information to them. We did not patronize them or dumb it down to where they were not treated. Again, sorry, basic stuff. Treat people like they matter, treat the women like they matter, and that their opinions are valid.

Treat the men like their opinions are valid. Just stuff you and I teach our children every day. If you apply that and apply it earnestly, we had opposing counsel asked at one point one of the women to remove her mask. About half the people were masked. It's Tennessee masks are not a big thing here. Asked one of the women to remove her mask. He damaged himself, I think, by asking her to remove... Because he was having trouble hearing, and I get that, but just treating them with that respect of not getting into that sort of thing, I think, was an unforced error on their part. But I think that those are the sort of things that just build respect. I felt like they respected me enough to come back and hear what my clients had to say.

Sari de la Motte:

Well, it's such a great point, and we were talking about earlier in the training today about the difference between motivating a jury to act. I mean that's what we talk about in plaintiff cases, is that what y'all are doing is hard because you're trying to motivate them to do something when human behavior, it's just much easier to let things be as they are. So we need to motivate them to act, but what y'all hear is I got to persuade them to act. And that's a very different thing altogether.

And in fact, I was saying earlier today that when we start persuading people, when it's something so simple like don't fucking lie, let me persuade you how it's really important. Then they start having the opposite reaction of wait, why is this guy trying to convince me of something that's just a normal thing? We overcomplicate it. We act like it's some magic that we have to perform. We have to be super charismatic. We have to be this magician out there when it's just find your principles and put them in front of the jury and let them handle this for you. They will. They will.

Scott Maucere:

Yeah. In our case, again, the three rules in order to find in favor of the defendant because the proof was overwhelming. The hard evidence was overwhelming. They would have to say that it's okay for people not to tell the truth. It's okay for them to cover up information, and even if they did, you shouldn't pay them back. They don't get what they're owed or what they deserve. I mean, those principles, or you could apply that to a car wreck case or a truck wreck case. It's not okay for the truck company to have its backup camera working, or it's not okay for them to observe basic training. No one's going to disagree, so don't feel like you have to push them.

And that was one of my big things. I've got 17 points that I want to argue depending on what my counterarguments from opposing council are. They didn't need that. They don't need it rammed down their throat, give it to them, they're human beings. They will figure out all the other steps, and it required me to let go, and we're attorneys, so we want to control every aspect of our case. Mistrying the case, I think as difficult as it was six months earlier, allowed me to sort of process some of those feelings and open the [inaudible 00:28:29]-

Sari de la Motte:

Love that. That's why we talk a lot about mindset around here. So tell me about the pig.

Scott Maucere:

All right, so this is one of my favorite things to come out of this. So I coached, I did mock trial in high school. I did mock trial in college, I did mock trial. I've coached mock trial for years and years and years. One of the things I always tell the kids is get a visual and politely ram it down the jury's throat over and over. And then in one of your podcasts, you talk about ringing the bell, come back to the same thing over and over, and ring that bell and it creates these neural pathways with the jury. They understand things.

Well, I have a case involving fraud and telling the truth, and I didn't have Pinocchio to go up there, although that would've been a great... If I could had someone that his nose grew every time, that would've been great. But I needed something to explain stocks and shares, and how stocks make money, and how the ownership relates to the investor, and how you can lose all of that. And I couldn't think and couldn't think. Finally, a week before trial, I said, "You know what, go on Amazon and buy a piggy bank." So we bought a pink piggy bank that was-

Sari de la Motte:

Yes, it's got to be pink.

Scott Maucere:

It's got to be pink. And it's across my office, I should have put it on my desk. But we bought this piggy bank and my partner Dan Barr, my partner, he's very experienced. He litigates all over the country, extremely experienced. He told me later, he said, "I thought you were an idiot for this piggy bank." It's very whimsical. I'm not very whimsical. And it was this very whimsical pig. And so what we did is after our teaching session, or in the middle of our teaching session, I said, "Look, this piggy bank represents my client's shares. You could put money into it."

And I robbed my kids' banks where they have the gold dollars and the silver dollars. So I needed something that clinked. So the night before trial, I stole all their money out of their piggy banks and I put it in and dropped it and rattled it around. I said, "These are shares they can gain value by profits being generated and the coins in there, or you can take the piggy bank and whatever's in it and sell it for a profit." So that was the piggy bank. So I used it then, and then I sat it at the front part of council table, and it sat there every day and every time we talked about shares, I'd pick up the piggy bank and I talked to my client.

Well, tell me about what's in your piggy bank. What do you thinks in your piggy bank? So the piggy bank, more from just an explanation of what a share was to these were my hopes and dreams. This was my retirement. I was going to be able to go visit the grandkids. I was going to be able to afford to take a cruise. This makes going to the grocery store every week earlier. And so the piggy bank got that, and then it sort of got out of control. So what happened was when the juror got COVID, the judge instituted a mask mandate in the courtroom because we haven't had mask mandates in Tennessee courtrooms in probably six months. And the judge put in a mask mandate for everyone. Well, we put a mask on the pig.

Sari de la Motte:

I knew it was coming.

Scott Maucere:

Again, it's just, again, not even my style necessarily. It was just sort of whimsical. We put him right there on the front of council table, a woman in the jury, and this is jury trial; they took it very seriously. They were warned not to talk to anybody. A woman who turned out to be the foreman of the jury stopped in her tracks, turned to my paralegal, and said, "Oh, I love the mask on the piggy bank." Just like didn't even mean to, and it was just she blurted it out. That's the moment I knew we had the jury because they were paying attention to the pig. Then we named the pig. I think I said, "And so Wilbur over here." And so the pig suddenly had the name Wilbur.

Sari de la Motte:

I love this.

Scott Maucere:

... personalized, and then so what I did in closing is I got a silver ball pein hammer.

Sari de la Motte:

I was going to say, did this thing get smashed or what?

Scott Maucere:

Well, that was original intention. I was going to smash the piggy bank and say there was nothing in the piggy bank. Then, in the middle of the trial, I realized I couldn't hurt the piggy bank.

Sari de la Motte:

Yeah, can't hurt Wilbur.

Scott Maucere:

The people on the jury were attached to this pig that had a name. So what we did is we took the piggy bank, and I put them out, and then I pulled out the hammer from behind the desk. The jury gasped.

Sari de la Motte:

Oh my God, I love this so much.

Scott Maucere:

What I said was, "Opposing counsel, if you let the defendants get away from the fraud, you've smashed their hopes and dreams.

Sari de la Motte:

Oh my gosh.

Scott Maucere:

And again, yeah, it's over the top.

Sari de la Motte:

Dude, okay. Can I stop you for a minute? You were having the time of your life, is what I'm hearing.

Scott Maucere:

Oh, absolutely.

Sari de la Motte:

And this is what we hear from so many of people who try a case in H2H way. They're like, it was the most fun that I ever had because you're not all freaked out and you're just trying shit and you're just having a ball. I mean, I wish I could have been there. This sounds incredible.

Scott Maucere:

It was so much fun. This is what we live for as trial lawyers, right?

Sari de la Motte:

Yes. Yes, it is. It is.

Scott Maucere:

We want... And the jury gasped. And I told them at the end of trial-

Sari de la Motte:

Oh my gosh.

Scott Maucere:

... I said, "Your verdict," because remember, we're dealing with about $250,000 in not millions of dollars. Told them, "Your verdict should make them gasp." We did. Yeah, we got a $2 million verdict, and it wasn't all the pig, but it was Wilbur has a special spot on my shelf now at this point.

Sari de la Motte:

Oh, I love it. I love it. You got to go get them. Go get them real quick. I want to see him.

Scott Maucere:

You want to get him. Oh.

Sari de la Motte:

Yeah, we got to see... You guys want to see Wilbur, right? Come on. You want to see Wilbur. Start loading up your questions in the Q&A here, or if you're on Facebook and Christie, if you could drop in the link for the power of the flip chart podcast and ringing the bell podcast, that would be good for our members and for on Facebook too. But I just love this. So, having fun at trial, this is what we're all about over here. Oh, I love it.

Scott Maucere:

This is Wilbur.

Sari de la Motte:

There's Wilbur.

Scott Maucere:

Yes it's Wilbur.

Sari de la Motte:

I'm so glad he didn't get smashed.

Scott Maucere:

He didn't get smashed.

Sari de la Motte:

That's wonderful.

Scott Maucere:

He was saved because the jury did the right thing.

Sari de la Motte:

The jury saved Wilbur.

Scott Maucere:

Jury did the right thing.

Sari de la Motte:

Yes. So, how is that different than using a gimmick in your mind?

Scott Maucere:

There's a super fine line. If it had to work, it would have been a gimmick, but there was truth wrapped up in it. I could have used the Pinocchio nose like the Washington Post does, or something like that, that may have felt gimmicky because it's obvious. There's no obvious connection between a piggy bank, as silly as it is, and what we were talking about. So I think it has to do with, if you're going to do something like that, first of all, you have to fully commit. If I had gone half-

Sari de la Motte:

Oh, so true. Oh, half-assing it would've been a disaster.

Scott Maucere:

Yeah, if I had put it out, shown it on day one, and then put it in a box and not done anything, people would've said, "What was that piggy bank? That was kind of dumb." It was dumb, but you lean into the whimsical part of it. And again, that's not my style, particularly to be whimsical. I think-

Sari de la Motte:

But I also think it worked because there's the truth, and this represented it versus here's this thing that I want to force on you and have it be this thing. It already existed. The truth already existed. You just gave it what we call a structure, right? You're like, here's the structure for this thing we're talking about and it made sense in jurors' minds instead of bringing out some random thing and trying to manipulate the jury with it and saying, here's what this is really about when that's not actually what it was about, it just became representation. It made a lot of sense. I love it.

Scott Maucere:

And unfortunately, I think a lot of that grew organically. I was going to smash the pig. I didn't realize until most of the way through the trial that they had an emotional connection with it. It grew-

Sari de la Motte:

That's right.

Scott Maucere:

The mask was last minute like, oh, we've all got to wear masks, put a mask on the pig. Ha ha.

Sari de la Motte:

That's the magic of this is that you're not following any kind of script. You're watching the jury, you're noticing how they're responding, and this is where all the fun group dynamic stuff gets to come in, and you're playing with that. That's where we talk about that this is really an art that y'all are doing, but you can't get to the artistry until you let go of your bullshit beliefs about jurors and about how you have to control the whole process about how they're there to kill you. Once you get rid of all of that, then you can play. We talk a lot about play around here. What you mean play? I'm like, I mean, play. Look at all the attorneys that have been coming on and doing trial debriefs. Y'all are telling me the same thing. Oh my God, this was so much fun. Oh my God, I listened to my instincts. Oh my God, I trusted the jury. And that's a different experience than most trial attorneys are having today. Is this the first time you've done an H2H trial besides the mistrial?

Scott Maucere:

Yes, it is.

Sari de la Motte:

And how was it different than how you've tried cases before, outside of the specific things you've already told us?

Scott Maucere:

One of the things I think it did do is I think it confirmed my instincts. I've been doing again, the theme or the object lesson, or the pig. That's something I can see looking for without hearing that from you first, it confirmed that those instincts I need to lean into more fully. And it provided a scientific and logical framework that you can then take your instincts and extrapolate them out. Oh, that's why I am talking to the jury about principles is because they're forming a group and you connected my instincts that I've had as a trial attorney with a real basis in reality that allowed me to then lean into what those instincts were and develop those instincts. If you're a good baseball player, you're going to throw the ball good, but then you learn that here's the mechanics of why you do that. And now you learn if you can put your body into it, you can get a lot more speed out of the pitch. It was that it gave a framework upon which to hang or drape your instincts.

Sari de la Motte:

I love that, and I think what you're talking about is labeling. So we're really big on going, here's what this is called, so that you can identify it and know how it works and why it works, or what happens if it doesn't work. So its labeling is, I think, so big if putting a name on something so that it's repeatable, so that you know why something happened the way that it did. But I also think something you said is really important, is we just had a client out here for a week, a couple weeks ago and we had him in front of three mock juries and he said, "I think one of the differences with the H2H method is that's an actual method." He's like, there's so many people out there that are like war stories or here's what I did. And then we go and we try to copy that, but it doesn't make any sense.

Or you bring in the trial consultant and they have all of the wisdom and you have to be with them for them to figure out, I mean, you and I never worked together. You just got this out of the book and the podcast. And that's such a blessing to me to know that my work is helping, even if I'm not there with you. So I'm so grateful for that. What would be some advice you might give trial attorneys who are maybe thinking, this is terrible. I hate the jury. I'm scared of them, or any of the things that most trial attorneys are thinking.

Scott Maucere:

I hate to give advice to people who are very, very capable, much more capable attorneys than I am. But with that caveat, distill down your principles. If I had come in with six things and different... The jury would've been lost. We might have gotten something at the end of the day. No one would've wanted to have been there. No one would've sat through the experts when we finally got to the experts. No one would've wanted to hear that. Distill it down. And once you've got it distilled down, give it to them and then let them do it. And I know you [inaudible 00:41:20]-

Sari de la Motte:

Let them have it.

Scott Maucere:

... every week or every other week, but it's like they will get it if you can explain it to them the way they understand it. Well, I'll give you one example. The principle under the law for our third principle, which is pay them what they deserve or pay them what they're owed, is called benefit of the bargain, and it's both a Florida and Tennessee law. It says if you've defrauded someone, you have to give them the benefit of the bargain. So we were using benefit of the bargain and I kept saying that and kept saying that. And even when I went home to my family for the weekend, I mentioned it to them, and they didn't get that part. They were getting everything else. They didn't get benefit of the bargain, and my co-counsel, Zach Darnell, who sat second chair with me, he had the same experience with his family, and we were talking about why don't they understand this. It's a very simple concept. One of my staff members pointed out, well, bargain, especially in the South, means a deal. It means they're getting something at a discount sale.

Sari de la Motte:

Yeah, sale.

Scott Maucere:

To me, as being a first-year law student a long time ago, we all know the bargain means to negotiate and reach an agreement over a particular set of terms. It's a bargain. It's not what it meant to the jury. It's not what it meant to ordinary people. They were thinking that there was some level of sale or deal or discount built into the word, when that's not what we meant at all, and that's not what the statute says. So we had to really go back and really limit that use of the word because they were reading something into what we were spoonfeeding them when we really just needed to tell them, give them what they deserve, and-

Sari de la Motte:

Well, I love this. What I'm hearing about this whole trial experience is you are so adaptable in the moment, right? You're like, we're keep using this word. It's going to work. And then you're like, it's not working. Why is this not working? And so you stopped using it or limited using it. You saw that you're going to smash the pig, you decided not to. The whole mask thing, you put it on the pig. I think this is where it gets really good, and this is where you guys really can outshine the opponent, is because you get to get creative. If you lean into your intuition and you're adaptable during trial, you want it to be scripted. You want the formula, you want everything to be set out in advance. It just isn't done that way. You've got to be thinking on your feet just like you were able to do in this trial, and I think that's what got you this great, beautiful verdict.

Scott Maucere:

You have to be able to get rid of things that you really like in it. You cannot... I really liked the benefit of the bargain. I thought it made a lot of sense. You have to be willing to say, "That doesn't work. I'm going to change what I'm doing."

Sari de la Motte:

That's exactly right. That's exactly right. We were, again, with a client, we had three juries, and every time we got in front of a jury, we were like, "Ooh, that didn't work. Let's try that. Let's try.." Things that we had sat here and worked up on our own that we thought were brilliant. We tried out in front of a jury, we're like, "Oh, we don't love that." And he comes in and he says, "Well, I did a clopening with the focus group and they gave me all this negative information." And I said, "Well, did you do a voir dire as well?" "No. You never do that with focus groups. You just throw a clopening on them, right?" And I'm like, "Well, there's your problem. Garbage in, garbage out."

If you don't have this group formed in voir dire around your principles, if I just throw information at them, they're going to tell me something that's totally different than if we give them piece by piece and they're playing with the principles and then the opening gets layered on top of it. They've got to be involved in the process. Not to say that focus groups don't tell us some great information, but it's an incomplete information. And you saw that here with the jury that you got to actually play this. Well, congratulations on your win. I don't see any questions so far. If you have questions, go ahead and load them up now, but what will you do differently moving forward in your upcoming trials?

Scott Maucere:

Oh, it worked pretty well. I think more of distilling down, more of taking things down. The flip chart worked extremely well. I would probably work the designing alliance. I will try to adapt it more for my own words, but I got the feeling early on I didn't know enough about how to do it properly to do it on my own. So I wanted to use what you had recommended, and I must've listened to your podcast, that I think it was a 40-minute-long podcast on how to do it. I must've listened to at least portions of that six or seven times. I will probably try to grow that on-

Sari de la Motte:

Make it your own.

Scott Maucere:

Make it my own. That would've been the big thing, just because I think that that is, and you've said this for a long time, that's not a one-size-fits-all thing. You can't just assume. It's not going to work in all circumstances. I think it worked pretty well, and I think we got where we wanted to get fantastically. I wouldn't say that my eloquence was on that one issue was the deciding factor. So I will continue to learn to develop that.

Sari de la Motte:

Do you feel that the design though, is helpful?

Scott Maucere:

I think you have to. If you can tell the jury, this is where we're going, then you'll form the group. It follows. That one comes after the next, absolutely.

Sari de la Motte:

But so many attorneys are so afraid they're going to be objected to you, and the judge would never let you say that, and you guys continue to come on over and over again and say, "It went fine"-

Scott Maucere:

And you know what-

Sari de la Motte:

... no problem here.

Scott Maucere:

... let them object.

Sari de la Motte:

Yep.

Scott Maucere:

Right?

Sari de la Motte:

Let them object.

Scott Maucere:

That's the point of trial is objections. Yeah.

Sari de la Motte:

Great.

Scott Maucere:

There is a question I see that,

Sari de la Motte:

Oh, what was it like to simplify such a complex area of law?

Scott Maucere:

What was it like to what?

Sari de la Motte:

Simplify such a complex area of law.

Scott Maucere:

I enjoy it. I find that I'm naturally a teacher, although people probably don't want to hear me teach, but I feel like I'm not a know-it-all, but I want everybody to know what I know because it's so exciting, and I want them to be excited about it as well. So distilling those complex areas, which I'm very comfortable living in day to day because that's what I do as an attorney, bringing it down was exciting because it's like how do I... It was very goalering. How do I get this to where an ordinary person who may very well be smarter than I am understands this one niche area that I know that only literally a few thousand people in this country understand? How do I get-

Sari de la Motte:

But that's oftentimes a problem that you're so close to it, right? Because you so live into it, you live with it, that's the issue, isn't it? It's like, I get it. How do I explain it to someone who doesn't have the knowledge that you have? I think that's the exact issue.

Scott Maucere:

Then you have to be selfless in that you have to put your ego aside because that's what it comes down to. Right? I understand it why doesn't everyone else, that's an ego problem. If you are the only person in the room that understands this very complex issue, there's a problem because unless you can communicate that to other people, you've done nothing. You're stroking your ego [inaudible 00:48:55] -

Sari de la Motte:

It has no value. It has no value.

Scott Maucere:

It has zero value.

Sari de la Motte:

Exactly.

Scott Maucere:

You have to be able to get it down to where other people understand it, too, and you have to put your ego aside to do that.

Sari de la Motte:

That's right. That's right. Richard Hill is asking, how did you incorporate your designed alliance strategies into your case prep, like depos and in pleadings? I don't think, Richard, that you do that. This is the part of the trial where you're designing with the jury about whether or not they want to be there or not. So that, I don't know if there's anything you want to say there to that, Scott.

Scott Maucere:

Yeah, I would say perhaps maybe turn this question, and how did I use maybe some of the principles of the rules? To tell you the truth, I think I got to Sari's wealth of knowledge and her methods after we had completed a lot of that. However, I definitely would begin to incorporate things that you want the jury to hear, admitted like the three rules. If I had come up with the three rules earlier, you would adapt them into your deposition. The jury instructions. I really pushed hard for the jury instructions to sort of secretly and surreptitiously follow the three rules. And it did opposing counsel-

Sari de la Motte:

Yeah, why wouldn't you?

Scott Maucere:

... didn't know what my three rules were, so they were willing to allow me to sneak in language that mirrored my three rules. And so, if you can-

Sari de la Motte:

Which is why you may not want to put them in depositions, right? You may want to save some of this for trial.

Scott Maucere:

Want to save.

Sari de la Motte:

It's a decision that, yeah, sometimes it may help for you. Sometimes it may help to save it for trial and have it be your [inaudible 00:50:39]-

Scott Maucere:

Rick Freeman in Rules of the Road talks about drafting from the jury instructions. The jury instructions are the principle. Ultimately, the jury instructions are the principles that you are asking-

Sari de la Motte:

Yes, exactly they are.

Scott Maucere:

... the jury. So I think Richard, it does help to, from day one, holistically think about where I'm going with this and what I want the jury to believe and what I want them to believe for me, at the end of the day. However, it's going to change 15 times because my rules change 15 times, and you have to be willing to adapt, and you have to be willing to jettison the things that you... Your smoking guns from six months or two years ago in depositions. You have to be able to throw those out and go do something completely different.

Sari de la Motte:

That's exactly right. That's what makes a great trial lawyer. Well, we talked about that, Richard, in the training earlier today. So you can go back and look at how to create principles from that. If you're in the crew, if you're not in the crew, you can join the waitlist from hostagetohero.com for when we open again. And Scott, so glad that you had this win. Congratulations again. Thank you for being here. It was such a pleasure to meet you, and I hope that you continue on your journey of winning more cases.

Scott Maucere:

Thank you.

Sari de la Motte:

Congrats.

Scott Maucere:

I look forward to working with you and continuing our working relationship.

Sari de la Motte:

Wonderful. Okay. We'll talk soon. Thank you, everybody, for being here.

Scott Maucere:

Thank you.

Sari de la Motte:

Bye-bye.

Scott Maucere:

Bye.