Bruce Kapsack - Washington

Louis Goodman  

Hello and welcome to Love Thy Lawyer, where we talk to real lawyers about their lives in and out of the practice of law, how they got to be lawyers, and what their experiences have been.  I’m  Louis Goodman, the host of the show, and yes, I'm a lawyer. Nobody's perfect. He is considered, if not the king of drunk driving defense, at least one of its most admired princes. Few people know more about field sobriety tests. He's lectured California Highway Patrol officers on the proper way to administer them. He served as a Public Defender at the legendary Bronx Legal Aid Society. He has numerous published articles, including a recent piece in forum, the Journal of the CIA, CJ, he is currently the Public Defender in Truckee, California. Bruce Kapsack, welcome to Love Thy Lawyer.

Bruce Kapsack  

Thank you, Louis. I'm really happy to be here.

Louis Goodman  

How did you happen to become the Public Defender in Truckee, California?

Bruce Kapsack  

Luck is the true answer. After running my own practice for 20 or so years, I decided it was time to go back to public defender work. I found out about an opening in Nevada County of which Truckee is one of the cities. And it turns out that the Public Defender, Terri Klein of Nevada County was actually a law clerk of mine, while she was in law school, and in Contra Costa County when I first moved here from New York.

Louis Goodman  

Bruce, where are you from originally?

Bruce Kapsack  

New York. I was born in Queens. And then we moved to a place called Rockland County, which is about 25 miles north and across the Hudson from the major part of New York City.

Louis Goodman  

Is that where you went to high school?

Bruce Kapsack  

I did. I went to a place called Ramapo High.

Louis Goodman  

And how was that experience for you?

Bruce Kapsack  

It was good. It was definitely an upper middle class school, rigorous education, good sports, very diverse population. And you know, I wouldn't say I was the most popular kid in the class, but I wasn't the one getting beaten up all the time.

Louis Goodman  

So something to be said for that. After graduated from Ramapo High School. Where'd you go to college?

Bruce Kapsack  

I went to a place which was called Plymouth State College at the time. It's now grown and it's become Plymouth State University. It's in New Hampshire.  It's actually dead center of the State of New Hampshire.

Louis Goodman  

What did you study at Plymouth State?

Bruce Kapsack  

I went there originally, to be a high school social studies teacher. So I did a bunch of education classes and social studies, history, etc. But in the back of my mind, I've always known I was going to be an attorney.

Louis Goodman  

You ultimately went to law school. Did you go to law school directly out of college?

Bruce Kapsack  

I did. I went from Plymouth State College, which to give an idea, full time part time undergrad and grad is about or was about 2800 students. The town of Plymouth has the college on one side and the town on the other. And I can still name the half a dozen businesses in town. After that, for your experience, I decided to go to a big city and went to Washington College of Law, which is part of the American University in Washington DC.

Louis Goodman  

Well, that is a big change.

Bruce Kapsack  

Yeah, I went from having more people in the apartment building in which I lived then pretty much lived on campus.

Louis Goodman  

When did you first decide to go to law school,  decided to be a lawyer?

Bruce Kapsack  

Well, I guess the easy answer is I decided at some mistake. But the more complete answer is I've always known I was going to be an attorney. Whenever we had projects in junior high or high school that involved any kind of law aspect, I always volunteered to be the lawyer and I always volunteered to be the defense attorney. So it's basically been in my makeup for as far back as I can remember.

Louis Goodman  

And you know what prompted you to start thinking about it?

Bruce Kapsack  

No, I'm not 100%  sure. What I did have my maternal grandmother was a lifelong, she got elected at a very early age to the State House of Representatives in New Hampshire, one of the first women elected,  one of the first democrats elected and she served there till she passed away. And through her and my parents, I had always had this concept of justice, especially for those in society that don't tend to get justice. So that's part of where it came from.

Louis Goodman  

After law school, you have had a couple of interim jobs. But then you went and served as mentioned, as a Public Defender at the Bronx Legal Aid Society. So I'm wondering if you could talk a little bit about that experience?

Bruce Kapsack  

Sure. I'll back up just a little bit. When I was in law school, I had the fortune of working for a very famous criminal defense attorney by the name of Marvin Miller and the group of attorneys in Northern Virginia and the Alexandria area, were some of the best known criminal defense attorneys around. And they're the ones who said that, you know, we're going to help train you and others like me, but in the end, you're going to have to make sure to train others because if we don't have staunch criminal defense attorneys, then we lose our Constitution, because that's where it comes from. When I was getting near the end of graduation time, I was looking at what to do. And they all told me that I could work for any one of them if I wanted to, but that they would fire me the very next day, because if I was too stupid to realize that I should go somewhere else for a little while, then I was probably too stupid to work for them. So I applied to a bunch of different Public Defender Offices got accepted in New York.   You get accepted to legal aid, and then they try and match you with where you live geographically. As I said, I was living just north of New York City, and the Bronx is the furthest north of the counties. So that's where I went in, I guess it was early 1987. The mid 1987, I should say.

Louis Goodman  

And that Bronx courthouse is where Bonfire of the Vanities is set for anyone who wants some sort of a primer on what that experience is like.

Bruce Kapsack  

It is and I was there. I actually walked down the hallway next to Mr. Hanks at one point because security back then was not the way it is now with celebrities. And I was on my way to one of the courtrooms to do some real work and he was on his way to film a scene.

Louis Goodman  

After you left the Bronx Legal Aid Society, where did you go?

Bruce Kapsack  

After I left Bronx Legal Aid,  I came out west to California. First thing I was doing is I was working in the Contra Costa County Public Defender's Office.

Louis Goodman  

What prompted your move from New York to California?

Bruce Kapsack  

I was in the third year of working at the Bronx Public Defender's Office, a woman walked off the elevator in our office and I fell in love with her and found out that she was one of the District Attorneys, one of the Prosecutors in the Bronx, good friend with two of my colleague public defenders, and we haven't been apart pretty much ever since. So she came out here to California and I followed her.

Louis Goodman  

Well, love will have a way of doing that to you.

Bruce Kapsack  

It does. And it's been 27 years that we've been married and we just celebrated that last week.

Louis Goodman  

Congratulations. How long did you stay at Contra Costa Public Defender?

Bruce Kapsack  

I stayed at the Contra Costa Public Defender's Office, I want to say probably about eight months or so just shy of a year somewhere between eight months in a year studying for the bar exam, took and passed the bar exam, then was waiting, I was hoping that I would be employed by Contra Costa County. But for some political reasons, it didn't happen. But along the way, I met a friend of both of ours who unfortunately has passed by the name of Fred Remer. We had a happenstance meeting. He heard that I was waiting for employment. And Fred offered me the extra room in his office, which was right down the hall from you.

Louis Goodman  

It was how did that experience worked out with Fred Remer? The legendary Fred Remer.

Bruce Kapsack  

Well, first of all, we have to give credit that is the best name for a lawyer a palindrome name Remer. That just you know, puts fear in everybody's spine. But it worked out really well. Fred was a wild man. He reminded me a lot of Marvin Miller, and John's Whirling the two guys that trained me up back in Northern Virginia. He had that same spirit of Dan the torpedoes full speed ahead. But what people didn't realize is he had already shored up the hall so that Butterfields wouldn't do anything to him. He just pretended that he was going recklessly. And I really liked that. And I was with him for a year. Well, then, the Office of Citizen Complaints in San Francisco, which at the time was the civilian side of Internal Affairs, went through a major shake up. They have been using former prosecutors for the most part to prosecute bad cops and that just didn't work out. So they decided to go the other way, and look for someone who had been doing defense work, who will to challenge the police officers. They  thought that was a more realistic aspect. I applied for and received that position and was the Chief Prosecutor of the Office of Citizen Complaints for about a year. 

Louis Goodman  

 Now eventually you moved into a very specialized DUI practice. How did that happen?

Bruce Kapsack  

I left there, and was hired by a Criminal Defense firm, one of the biggest criminal defense firms in Northern California, that had a majority of its practice in DUI. Even the laws always been my love and passion. I've also always enjoyed medical aspect, or, you know, the sciences, I guess, is the best way to put it. And while I had very little experience in the DUI arena, when I first joined that firm, I quickly saw that I loved the math of calculating blood alcohol levels.  I loved the physiology of field sobriety tests, you know, the whole concept of how do you know a machine is accurate through traceability, all of these concepts screamed out at me. And I just dove right in.  

Louis Goodman  

DUI is  very complicated as far as science is concerned. And it really involves a lot of forensics that one doesn't see outside of the murder arena in criminal defense.

Bruce Kapsack  

Absolutely. And I've always been shocked that both Public Defender and DHS officers can be wise to people that are you know, the diploma is still wet. Because as you said, there's a lot of science.

Louis Goodman  

Now, out of that DUI practice you met and started working with another legend, Ed Kuwatch?

Bruce Kapsack  

Yes, yeah. Again, it's interesting. I'm starting to think as you're talking to me and starting to think maybe it's me that I attract these people. Ed was another one like Fred and like Marvin and John. He was definitely he was less than a torpedoes he was much more if I'm can say this, screw the government. One of the most fantastic things that he did well, first of all, he had been a great DUI attorney in the Bay Area, when I met him he had left fairly recently, and went into sort of a semi retirement, he didn't really do a lot of day to day DUI work. Instead, he found pleasure in harassing the government, especially the Department of Motor Vehicles as to why they were doing things the way they were doing. And he filed Freedom of Information Requests after Freedom of Information Request to get all this information, where we found out that, you know, the people being for the DMV, people being trained to make these decisions and how they were being trained, was just a pourraient. And once that information got out, people were like, yeah, you can't do that. And you know, we're talking California, except for its big cities. If you can't drive, you're in deep trouble. And I know people say that about almost anywhere. But back east, the big city runs from Bangor, Maine to Key West Florida. So you know, out here, if you can't drive, you can't make a living. And if the Department of Motor Vehicles is taking people's licenses away when they shouldn't, that affects a lot of innocent people.

Louis Goodman  

You've been practicing for quite some time. What is it you really like about practicing law?

Bruce Kapsack  

Okay, yeah, as a matter of fact, right before this, they're starting to think my first time in a courtroom was about now give or take a couple of weeks in 1986. So that gives me my 35th anniversary. What I like about it truly is my passion. The very first time I walked into a courtroom was the United States Court of Appeals for the Fourth Circuit. So one step below the Supreme Court, and I didn't even graduate law school yet. I walked in there. I saw attorneys with decades of practice, and they were jumping around and sweating and everything else. And I just looked at my teacher, my professor, and I just said, Can we ask permission to go first because I want to do this. I love that aspect. I really enjoy the intellectual part I really enjoy when I'm up against a District Attorney or a Judge or all three, where debate intelligently, calmly, passionately. What does a specific law mean? Does this actually cover this topic? Or is there a loophole or should there be an exception? I really enjoy that mental aspect. At the same time, you know, a lot of people have asked me, Bruce, you did DUI work for all that time, you know, you put all these drugs back on the road, etc, etc. And they say, you know, how do you do that? And I think well, the truth is, I probably get more thank you cards than most sober living environments, or halfway houses or rehab, because a lot of the people that I represented, would have ended up down that, but we had them off, and they realized it. And so that makes you feel really good, you know, makes you feel really good. When you have somebody who made a mistake, you help them through the mistake, as best you can. And they turn around and they say, you know what, thank you for doing it, you did turn my life around. A lot of times, you know, I'll get messages later on, I saved a marriage simply by representing somebody on a DUI case. So that makes you feel really good when you do that.

Louis Goodman  

If someone were coming out of college and looking for a career, would you recommend the law as a career?

Bruce Kapsack  

You know, I knew you were gonna ask you that question, I go back and forth.

Louis Goodman  

How is practicing law either met or different from your expectations about it?

Bruce Kapsack  

Well, the first difference I would point out, is that when you get out of law school, they haven't told you actually how to practice law. They've taught you the law, so to speak. But the practice of that they haven't, and even harder, and this is a cautionary tale for anybody who's listening to this in law school, just starting out. If you're going to go out on your own, and you know, the old hang your shingle outside the barn door kind of thing. You better start taking some night business classes. Because it's not easy to run a practice. I know you've done it a little bit longer than I did. It's tough work. It's long work. You know, you're in court nine to five and you think, okay, that's it. But then no, it's time to go home and get new clients pay the secretary pay the rent. So that part really was a shock to me, coming out of law school.

Louis Goodman  

How did that go for you the business of practicing law? What did you think of that?

Bruce Kapsack  

Well I was lucky.   I had a business partner by the name of Hudson Bear, who was definitely people always said, between the two of us, we were really good combination. Because my head was in the sky and his feet on the ground, I would come up with these grandiose ideas. And he would always have, you know, a little bit of money stashed away. So his attitude was, we can try this for 30 days and see what happens.  Over 20 years, I'm proud to say that, more often than not, the 30 days worked out and it became part of our practice. But there were a couple of times where we fell flat. So you learn.

Louis Goodman  

Is there anything that you know now that you really wish you'd known before you ever got into the law?

Bruce Kapsack  

I think the most important thing is to learn how to shake a lot of it off. There's a lot that comes at you that in the beginning, you take too, personally, and you have to learn to shake it off. And I wish I'd known that when I started. Because there were a couple times I took things a little too, personally. And it was tough to get back up, you know and start again.

Louis Goodman  

What do you think's the best advice you've ever received?

Bruce Kapsack  

Well, the best advice I ever received as far as the legal running a practice of business end of it was from Marvin, my first mentor, and he gave me three words of advice. And it was prepare, prepare, prepare.

Louis Goodman  

Do you think the legal system is fair? 

Bruce Kapsack  

The legal system is fair in its unfairness is that and that's not my someone actually said that about the universe that the universe is universally unfair. So that makes it fair? What I mean by that is, the justice system tries to be fair, but there's too many levers or moving parts. And the most significant one, in my mind, is economics. 

Louis Goodman  

You have published numerous articles, and you most recently have published the first of two parts, something called Reframing the Narrative Defense Techniques for Criminal Trials. And that's in the CIA CJ Publication. I'm wondering if you could explain a little bit about what you mean by reframing the narrative.

Bruce Kapsack  

Sure, firstly, let's talk a little bit about framing is it's been around forever. Karl Rove made a whole lot of money off of it and a whole lot of successful politics off of it. But basically, the concept is, whoever creates the framework for their audience, then their audience is already there's already captivated. One of the easiest examples, for those of us of a certain age is if I say to people, how many of you are in favor of choice? Very few people are going to say they're not. But if I say how many of you will favor in favor of abortion, even people who believe in choice will start to hem and haw, because that's not what they're in favor of. And that is framing in a nutshell, when it comes to the criminal justice system. The first and worst aspect of framing is what you just said in the question before but in a different context. When the judge says, can everybody here  be fair? Or can you be fair to both sides? That's wrong. Fair to both sides means even balanced starting out the same, but in a criminal trial it is blatantly, intentionally unconstitutionally unfair. For example, I tell you fair, I say so who do you want to hear from? You say, Well, I want to be fair, I want to hear from both sides, no. criminal case, you only hear from one side? When you say to somebody, how would you have conducted a fair race? They would say, well, you both thought at the start, and you both go to the finish line. Nope. In a criminal trial, the defendant has already won the race. Because the defendant is presumed not guilty. They are the presumptive winner of the race. Well, that's not fair. And when a judge says fair, the other thing is, who wins in a fair fight, whoever scores another pointer to me just look at boxing, you know, they fight for 13 rounds. And it comes down to one point by one judge, and they get the win. That's not criminal. It's got to be all the judges with all the points on their scorecard going to the prosecution in every round. So as soon as a Judge, and it's not the Judges fault, because they were trained this way, as soon as the judges start saying, We want a fair trial, they've immediately framed it in people's minds, that both sides start out evenly, that one side can win by one point, and that they need to hear from both people. Now, I've been lucky and successful in convincing judges that instead of asking if they can be fair, ask if they can be appropriate. And I've used this a few times, and it's gaining some traction. Like a lot of things in the law, it moves slowly. So that's part of the concept of refining the narrative.

Louis Goodman  

I'm going to shift gears here a little bit, Bruce, tell me a little bit about what your family life has been like and how practicing law has affected that.

Bruce Kapsack  

There's been good and bad, but you could probably say that about every career.  I do have three kids. Two of them are disappointments, because they're both considering going to law school. But I do say that somewhat tongue in cheek, one interesting aspect is my children will tell you, having grown up listening to me, if you're growing up in this household, and you've listened to it your entire life, there comes a point where you can actually,  they can actually do my lines. And you know, it did become funny at times where I'd be on the phone, and they could tell the next line out of my mouth, they would know what I'd be saying to somebody. At the same time. Having seen people whose lives did get severely messed up, either through injury because of alcohol, or to themselves or the family because alcohol. I never had to lecture my children on alcohol. They pretty much got it. And what's interesting is so a lot of their friends.

Louis Goodman  

What sort of recreational pursuits do you have? And how does that help you clear your head after a day of practicing law?

Bruce Kapsack  

Well, absolutely, you'll find me hit Mt. Rose. Anytime I can to go skiing. Yep. And I do bicycle. When we don't have so much smoke in the air that it's unhealthy. I'd love to bicycle because that gets me in shape for skiing.

Louis Goodman  

What sort of things keep you up at night?

Bruce Kapsack  

I still just two nights ago, whenever I get a tough case, they lean on me. You know, I said about shrugging things off. The truth of matter is if you're I think any profession, if you're in almost any profession, and you're passionate about it, and you've got a problem, and it doesn't, not you at night or hit you in the shower or something like that, and it's probably time to give it up because you don't care anymore.

Louis Goodman  

Let's say you and your wife came into some real money, few billion dollars, you know, $3/$4 billion. What, if anything, would you do differently in your life?

Bruce Kapsack  

Well, my wife would immediately move back to New York. She's made that very clear.  Whether I'd go back or not. I don't know. No, I'm kidding. I would.   Besides that, I still keep my place here in Truckee for the skiing and for the summers, but besides that, I would definitely find a way to be even more teaching, especially at all levels. And so I would if I had the money, I would find a way to go. And the pitch is I routinely volunteer wherever I find myself, I go immediately to the high school social studies teachers, and I say, I'm willing to come in here, this is what I'm willing to talk about. I've done it before, I'll do it again. And they say yes, because it's something new and different. And they like it. And they never been turned down by Social Studies Department. When I say, you want to give me a day or two over the semester, I'll come in and do this. They're like, hell yeah. And that's my pitch to everybody out there, do it.

Louis Goodman  

Let's say you had a magic wand, there was one thing in the world that you could change in the legal world or otherwise, what would that be?

Bruce Kapsack  

Get rid of the death penalty.  

Louis Goodman  

Let's say you got 60 seconds on the Superbowl, you had a Superbowl ad? You could say whatever you want in 60 seconds,  huge audience? What would you want to tell the world?

Bruce Kapsack  

Look at the person next to you. They have all the same needs and desires that you do. The two of you just have a different thought of how to get there. Instead of each of you fighting on who's right, and who's wrong to get there. Why don't you just both grab hands and walk and get there? 

Louis Goodman  

Bruce, you and I have known each other for quite some time. And you've always struck me as someone who follows your passions. Can you comment on that?

Bruce Kapsack  

Yeah, like I've told my children, the, whatever it is you want to do. If you're passionate about it, do it. And once you lose that passion, find something else. If you're passionate about what you're doing, you will be successful, you'll be successful in your heart successful in your head, and you probably be successful in your wallet.

Louis Goodman  

Bruce Kapsack, thank you so much for joining me today on the Love Thy Lawyer podcast. It's been a pleasure talking to you.

Bruce Kapsack  

Louis, it's been great talking to you. I wish you well on this. And if you ever want to chat, give me a call.

Louis Goodman  

That's it for today's episode of Love Thy Lawyer. If you enjoyed listening, please share it with a friend. And subscribe to the podcast. If you have comments or suggestions, send me an email. I promise I'll respond. Take a look at our website at lovethylawyer.com where you can find all of our episodes, transcripts, photographs, and information. Thanks as always, to my guests who share their wisdom. And to Joel Katz for music, Brian Matheson for technical support, and Tracey Harvey. I'm Louis Goodman.

Bruce Kapsack  

Because we're on the other side of the mountain has to be able to function on their own and be able to do everything from drunk in public to murder and I fit the bill and off we went.