Richard Zitrin - Escape to San Quentin

Richard Zitrin - Transcript 

Louis Goodman 00:05 

Welcome to Love Thy Lawyer. I'm Louis Goodman. Today, I'm honored to welcome Richard Zitrin to the podcast. An internationally recognized professor of legal ethics, Richard Zitrin started his career representing Johnny Spain in the infamous San Quentin Six case in the early 1970s. He's tried over 50 cases to jury verdict, always representing individuals in both civil and criminal cases against big government, big business and big money. He recently wrote a book about his experience in court, Trial Lawyer: A Life Representing People Against Power. He's taught law, drafted legislation and consulted for network television. Professor Richard Zitrin, welcome to Love Thy Lawyer.

Richard Zitrin 00:56 

Thank you, Louis. Pleasure to be here. 

Louis Goodman 00:58 

I'm honored to have you, I've read quite a bit of your book and I'm very impressed. I'm wondering if you could tell us right now where you are speaking to us from? 

Richard Zitrin 01:09 

I'm speaking from my home office on Telegraph Hill. 

Louis Goodman 01:13 

How long have you been practicing in San Francisco? 

Richard Zitrin 01:17 

Well, I was admitted to practice in 1975, so that would be 47 years. 

Louis Goodman 01:24 

What type of practice do you have? How would you describe your practice? 

Richard Zitrin 01:28 

Today, my practice is really limited to consulting with lawyers on ethical issues, either as a consultant to them, or occasionally as an expert witness. 

Louis Goodman 01:40 

How would you describe the arc of your career? 

Richard Zitrin 01:43 

Well, I've changed my practice areas and my vocation a fair number of times. I've always believed in sliding from one thing to another. 

Louis Goodman 01:54 

What have you slid from, where did you start sliding and where did you go? 

Richard Zitrin 01:58 

I started as a law student working on the San Quentin Six case for my mentor, a fellow named David Mayer. And we became partners in January, 1975, and we remained partners for nine years. We were trying to do as much criminal defense as possible. We both became criminal law specialists. 

During that period of time, I was invited to teach legal ethics at the University of San Francisco Law School as a kind of side gig. After about 10 years of criminal law practice, I segued into civil trial practice also on behalf of individuals. And my second civil trial was a big products liability case against Chrysler Corporation, which is a chapter in my book, actually. Then I wound up writing a lot about legal ethics starting in the late eighties, early nineties, and creating another side gig as a consultant in legal ethics and malpractice cases and attorneys' fees disputes, what I call attorney conduct cases, and wound up taking trial work in legal malpractice and attorney conduct cases almost entirely for plaintiffs. 

Louis Goodman 03:15 

Where are you from originally? 

Richard Zitrin 03:18 

I'm from Brooklyn. 

Louis Goodman 03:20 

Is that where you went to high school? 

Richard Zitrin 03:22 

I went to high school on Long Island. I went to Great Neck North High School, and then I went to college in the Midwest and came out after two years of law school at NYU.

Louis Goodman 03:35 

Where'd you go to college? 

Richard Zitrin 03:36 

I went to Oberlin College. 

Louis Goodman 03:38 

What was that experience like? 

Richard Zitrin 03:40 

It was a very interesting place. It was radicalized sixties. I went there from '64 to '68. And during that period of time, there was an enormous change in a lot of things, including the short hair that we came in with and the long hair that we left with, the political situation from Lyndon Johnson being president to the war in Vietnam to the assassinations of Dr.

King and Robert Kennedy in our last semester. So it was a revolutionary time. 

Louis Goodman 04:15 

When you graduated from Oberlin, you went to law school. Did you take any time off or did you go directly from college to law school? 

Richard Zitrin 04:23 

I took a few years off, mostly because I didn't wanna go to Vietnam. I had opposed the war since a high school advocate against the war. And so I taught school for a period of time in New York City and then I got a high draft number and did some political work for a couple of years in New York for various candidates. And then law school seemed like the kind of default place to go. 

Louis Goodman 04:52 

Where did you go to law school? 

Richard Zitrin 04:54 

I went to NYU Law School for two interrupted years. I dropped out after my first year, very unhappy with the nature of law school. And at that point I was writing a lot of music and I was singing my songs and playing piano in clubs around Greenwich Village and passing the hat while driving a cab from 3:00 PM to 3:00 AM in New York City. 

Then I went back to law school. I don't know what got into me, but , I wound up going back. 

Louis Goodman 05:28 

When did you first start thinking about being a lawyer where you said, 'I wanna go to law school. I wanna be a lawyer.'? 

Richard Zitrin 05:36 

I think I was in law school before I thought about being a lawyer, because I had been involved in a lot of political work. And so at that time, some of the movements against the Vietnam war. It seemed like a natural segue, although I wasn't sure why I was there. After I had been there for a while, I thought, well, there is some things I might be able to do, but I really had no clear idea of an urgent desire to be a lawyer until I came out to San Francisco and started working on the San Quentin Six case. 

Louis Goodman 06:10 

How did you get involved with that San Quentin six case? I mean, that was a huge case. It involved extremely serious charges and you pretty much had no experience at the time. 

Richard Zitrin 06:21 

Right. I had never had a job during law school working in a law firm. I was driving a cab. When I got out to San Francisco, my best friend got two job offers and he chose one and recommended me for the other. And I went up to San Rafael and interviewed with this guy, David Mayer and he offered me a job as his law clerk representing Johnny Spain. So I grabbed it. 

Louis Goodman 06:51 

That was a really politically charged case and I'm wondering if you could tell us just a little about Johnny Spain and I guess the way the courtroom felt, and especially for the way the courtroom felt for Johnny Spain, who was shackled for a good deal of the trial.

Richard Zitrin 07:11 

Well, for him, I think it felt like an extension of prison. Johnny had to wear quote unquote 25 pounds of shackles while in the courtroom. I have a picture of him in the courtroom, in my book which shows him slumped in a seat because he really can't sit up directly. When we would meet at the prison, he would also be shackled and he would talk about how difficult it was to sit in the courtroom under those circumstances. And eventually some years later that led to the reversal of his convictions. 

Louis Goodman 07:48 

At one point, he even asked the judge if he could be excused from the trial that he was willing to not even be in the courtroom at his own trial because of the pain and difficulty of being shackled in court. 

Richard Zitrin 08:02 

He actually did that at several points. Twice he filed a declaration with the court that he had written by hand saying he didn't wanna be there, which is something that the judge who overturned his conviction and then the Ninth Circuit Court of Appeals later cited as a reason to reverse his conviction, because he couldn't really communicate with his lawyers. He was in too much pain. And the thing about that was that the trial judge had never actually made a finding that the shackles, which all six defendants had to wear were necessary by virtue of their behavior. So without a hearing, there was no real justification for those shackles.

Louis Goodman 08:46 

Was that just kind of common practice at that time or was it because of the fear of these particular defendants? 

Richard Zitrin 08:54 

Well, I think it was the fear and I think the fear related to racism, frankly. They built a high security courtroom in the Marin County Civic Sector for this case, with a large Plexiglass wall between the audience and the well of the courtroom. The shackles were so bad that in order to write, Johnny and the other five defendants would have to pull their bodies forward because there was a shackle from a handcuff that went to a waist chain and the chain between the handcuff and the waist chain was very short. So if you can imagine having to write notes in your own defense, having to scrunch your shoulders and back forward in an uncomfortable position. 

Louis Goodman 09:38 

One of the chapters in your book involves the advice you received from a psychologist in a molestation case with respect to picking the jury. And I, as someone who's picked a fair number of juries, was really interested in her advice to you as an attorney in picking the jury. And I'm wondering if you could talk a little bit about her suggestions of open-ended questions as a way to really bring out the mentality of the jurors and to create a certain rapport with the jurors? 

Richard Zitrin 10:21 

Well, there were two things about that experience that were extraordinary. Cathy Bennett, Cat, as she was known, was one of the first jury experts. She had gone to Wounded Knee as a very young psychologist and helped pick is out there and round up, just before I met her, had done the John DeLorean case. He was acquitted in a sale or possession for sale of cocaine case. We worked very hard for four days in Texas, where she was living at the time, to develop an open-ended method of asking questions. And I learned that open-ended questions are not like, where were you yesterday? Or where were you et al? That wasn't open-ended enough. Open-ended questions are more like, "I see. And... and?" That is totally open, as a psychologist might ask a question in a therapy session.

Louis Goodman 11:21 

And Cat did have training as a psychologist? 

Richard Zitrin 11:26 

Yes. That was her background. The bigger issue for me was when we implemented this strategy in the actual jury, voir dire, it was working just the way we had planned it. I asked general questions about seven of them to the jury in an effort to get them to come out and raise their hands, just raise their hands, if any of the questions applied to them. And in that way, we got a lot of people to raise their hands on the issue of whether they or anyone they had known had been molested.

Louis Goodman 11:58 

I wanna just read right out of your book here a couple of these open-ended questions that you were asking, "We're going to be describing pretty serious sexual matters, charges about particular sexual conduct, references to private parts or sexual acts. Do any of you feel that this may upset or disturb you to an extent that it concerns you?"

That's one of the questions. Here's another one, "While I know it's difficult, I have to ask you or anyone to you has ever been the victim of a sexual molestation or a sexual offense?" And, and these are very different from the kinds of questions that oftentimes you hear attorneys asking, "Well, Mrs. Jones, can you be fair to both sides? Can you just listen to the evidence that comes in from the witness stand? Can you not bring your prejudices into this courtroom?" Those kinds of questions. I mean, these are very, very different kinds of voir dire questions. 

Richard Zitrin 13:01 

Right. And I should say that it had been plain, even to me prior to Cat's wonderful assistance, that asking questions like, "Do you think you could be fair?" Will get you a yes answer 99 out of a 100 times, even though it may not really be a yes answer. Those questions are meaningless. One of the things that was important about those questions is that those two were the keys in the total of eight questions, which started off with two softballs. The first one was, "Are you familiar with the Chinese-American community in San Francisco?" The second one was whether anyone had experience in the field of medicine because my client was a doctor. And those were soft balls to try to get some rapport with the jury before I ask them the heavy duty questions that you read. You can't come out of the box with that because no one will answer you. 

Louis Goodman 14:00 

I think of, as someone who is trying cases that that little list and that demonstration of how to use that list of questions is easily worth the price of the book.

Richard Zitrin 14:16 

Well, thank you so much. I actually did a quite a fair amount of training. I also taught trial practice at USF the University of San Francisco, and we would make jury voir dire an important component of the a course. It is, well for a long time, it was an overlooked part of a trial lawyer's arsenal. Today, less so because we have TV shows that focus on it. But it's very difficult for a lawyer to naturally ask open-ended questions because the lawyers are used to asking very pointed questions that will get the answer they want, not the answer that the juror wants to give. 

Louis Goodman 14:59 

You've had a very varied career. What do you really like about practicing law and what has kept you in the legal profession?

Richard Zitrin 15:06 

I can't say I ever loved going to trial because the anxiety of going, particularly before the case got called out to trial and you're in this big courtroom with a hundred other lawyers and you're waiting to be assigned a courtroom, was enormous to me. And having the lives of people in your hands in murder cases is extremely enervating. I did like the discipline of trying a case because it involves many facets of one's skill set.

You gotta be able to think quickly on your feet, you have to be able to get a rapport with the jury and with the judge, and of course, with your client. You need to, you need to be aware of the law and very clearly aware of all of the facts that relate to the case and how the law relates to those facts. And you need to find a path to victory, that can be very difficult, particularly in criminal cases, but that is succinct and clear and intelligible. And I used to ask my trial practice students, see if you can get it down to half a dozen words. 

Louis Goodman 16:21 

If a young person was just coming out of college, would you recommend going to law school with an eye towards practicing law as a career choice?

Richard Zitrin 16:31 

I think it depends on the individual. I think there are an awful lot of lawyers today, and many of them don't have the opportunity to have the careers they would like. Also, lawyers, also law students, some of them are going to law school because they think they're gonna have a very highly remunerative career. And I really think that those people are in jeopardy because people who go to law school to make a lot of money would probably be better off going into some business occupation. 

We know from studies that have been done, that lawyers and law students have among the highest rates of depression and drug and alcohol abuse, and that many lawyers, particularly those in large firms get very burned out by what they're asked to do.

Louis Goodman 17:22 

Why do you think that is? 

Richard Zitrin 17:23 

Well, I have a predisposition against large law firms from what I've seen through my experience with working with them. working against them, and having many of my students go to that. They are too often, they're too often a place where young associates get paid a lot of money, but are used up by law firms that are actually profit centers for the law firms. Lawyers can spend years reviewing documents for a living, which is not exactly the user friendly occupation. 

Louis Goodman 17:56 

How is actually practicing law the way you've practiced it either met or different from your expectations about it? 

Richard Zitrin 18:04 

Well, practicing law in the way that I have provided me with a community of like-minded people. When I started practicing criminal law, my mentor, and then when we moved into San Francisco and I did more work down at the San Francisco Hall of Justice, the crowd of the best criminal defense lawyers was just a bunch of really great, smart, terrific, skilled people. And it was a pleasure to be among them. And some of them are still my good friends today. And now I have an office primarily because the other senior people in this office, which probably has 10 lawyers in total are some of the most skilled and expert lawyers in their area and my colleagues and friends. We've worked on cases together and schmoozed about cases together and brainstormed together and I talked baseball and basketball together. 

I'm going to leave my office by the end of the year because my two closest friends are not around. They're working remotely as well. 

Louis Goodman 19:10 

Is there anything that you know now that you really wished you knew before you started practicing law or that you've learned along the way?

Richard Zitrin 19:17 

Well, the biggest thing I learned along the way was where Cat Bennett taught me in that molestation trial. because as I had the experience voir diring that jury, the judge who was convinced that my client was guilty, because it was the retrial of a case that she had tried previously, was allowing the prospective jurors to heckle me because I had gone so slowly and so long with each perspective juror that I had only gotten through six out of the 18 prospective jurors, by the end of the day. And I was in shock. And the only one who's perceived that when we decompressed after the day was Cat, who said to me, "Richard, you love to be in control in the courtroom, don't you?" And I said, "Yeah, that's really important. You've gotta show that you know, more than anybody else." But that was not the time to know more than anybody else. It was the time to listen. And so Cat said to me, "You know, bless your heart. But if you do that, then how do you expect people to give you an honest answer when you are not being honest with how upset you were about to way things went?" And that's what changed things for me in the next morning's war the year. It was the most meaningful moment I've ever had in terms of what I've learned about being a lawyer and a huge lesson in terms of what I learned about being a human being. 

Louis Goodman 20:52 

Do you think the legal system is fair? 

Richard Zitrin 20:54 

No. 

Louis Goodman 20:56 

Why not? 

Richard Zitrin 20:58 

It's not fair to poor people. It's not fair to people of color. It's not fair to people who don't have access to lawyers who don't load, no lawyers. I came from a pretty privileged background. You know, I'm a straight white guy who came from an upper middle class background. We've just had a decision that abhor, overturning Roe versus Wade. And the people who are gonna be affected by that. 

If you look at a map of where there aren't gonna be any abortions available, you're looking at the Southeast and Texas, and you're looking mostly with poor people who don't have the money to travel from one state to another in order to be able to control their own bodies. So that's a decision that has an enormous unfairness to it with respect to wealth race and elitism, frankly. 

Louis Goodman 21:47 

What mistakes do you think lawyers make? 

Richard Zitrin 21:51 

In my learning experience with Cat and what I've seen from many lawyers and myself as a young lawyer is what my dad used to say was, somebody likes to think who the hell he is.

He was from Brooklyn, too. Hubris is a great danger to lawyers. Thinking you know the answers is an enormous danger. It's not only a danger in trial in the courtroom, but it's a danger when it comes to developing relationships with clients. And I had the good fortune to have my very first case being one in which my client was so obviously not an even playing field with me that I understood I could not walk in his shoes. But nevertheless, I made mistakes of hubris and thinking who the hell I was. And I saw, and I've seen lawyers repeat and repeat that mistake over decades. 

When I tried a case against Chrysler, the lawyers on the other side were, as I wrote the chapter in the book about that case, so tone death and elitist, marginalizing of our greasy thumb witnesses that dealt with a car crash. 

Louis Goodman 23:11 

In that case, it was a Hispanic woman driving a van that had been built by the Chrysler Corporation that had a defective steering mechanism and Chrysler really knew that that steering mechanism was defective and they brought not just her vehicle in, but many vehicles and gave it a so-called "fix" that really wasn't a fix and then tried to defend their actions going forward. Is that accurate? 

Richard Zitrin 23:41 

It's absolutely accurate. They actually had a recall that they sold to the National Highway Traffic Safety Administration that was totally ineffective, but they sold it and the government bought it.

Louis Goodman 23:56 

Right. And it's interesting that in that case, despite your battles with law enforcement over the years, the California Highway Patrol was really one of your great allies in this case. 

Richard Zitrin 24:06 

Absolutely because they examined these vehicles. Vans are considered trucks, and there was a fella in the Highway Patrol who wrote a letter to Chrysler saying you cannot inspect these cars to see the cracks in the frame by lifting it up on a hoist and examining it visually, you have to have the car load bearing, so that the Van's gotta be on the ground and you move the steering wheel back and forth and disclose the cracks while you have weight bearing on the frame, and Chrysler completely ignored that. But the folks who were fixing school bus conversions and carrying children around in the vans did not ignore that and came up with another way of fixing the vans that Chrysler did not recommend, but that actually worked.

Louis Goodman 25:00 

Well the jury didn't disregard the Highway Patrol finding, did they? 

Richard Zitrin 25:06 

No, they didn't. You know, the interesting thing was, opposing council poo-pooed our witnesses who didn't have advanced degrees. The fellow who testified, who was a former Highway Patrol Officer became a truck driver, was driving an 18 Wheeler when we called him as an expert in van inspection. When I suggested to him in his home in Manteca that he was an expert, he said, "No, I'm not." And I said, "Yes, you are. You're an expert in inspecting vans." And he said, "You know what? I am!" He was a great witness. 

Louis Goodman 25:41 

You've written several books about the law yourself. Is there any book that somebody else has written about the law or dealing with the law that you particularly like?

Richard Zitrin 25:52 

I've read some books that don't necessarily deal directly with the law, but to have a relationship to the law, such as the Empire of Pain about the Sacklers and the Purdue and their legal mechanisms to avoid being responsible for what was obviously lying and the misleading hundreds of thousands of doctors and millions of people. I find books like that really interesting. I do read some books by lawyers. I've always liked Richard North Patterson's novels and back in the day, Scott Turow's novels. I don't know that, I'd like to see more lawyers write nonfiction as this book is because it's really true that non-fiction stories, the truth is way stranger than fiction.

I really believe that I've seen things that I've written about in this book that you would not believe unless they were actually true. And what is in the book is. So I don't have to make stuff up and I'd love to see more lawyers do what Louis Nizer did many, many years ago when he wrote a book called My Life In Court and described similar things that were stranger than fiction. 

Louis Goodman 27:09 

Let's say you came into some real money, let's say 3 or 4 billion dollars. What, if anything, would you do differently in your life? 

Richard Zitrin 27:17 

Probably nothing. I have a small family foundation that tries to use its funds to help make the world a little bit better. I'm very concerned about courthouse secrecy and the fact that in civil cases protect the borders, shield things like Oxycontin's dirty linen for as many as 15 years or products particularly that relate to women's reproductive systems that are defective and as one friend of mine said, allowing drug companies to experiment on women's body. So I've devoted a lot of attention to that and a lot of money to endowing an anti-secrecy lawyer with a great organization called Public Justice.

But I don't think I do anything really differently. I've been very fortunate to be able to do what I want. I think more money would just be a means to be able to give it away and try to help more. 

Louis Goodman 28:11 

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

Richard Zitrin 28:17 

Today it would be to change the composition of the Supreme Court, but in a broader sense, it would be to provide real access to justice for the people who can't afford it. And when we're talking about the people who can't afford, we're probably talking about 85 to 90% of the population.

I get a lot of calls about malpractice cases. People have a malpractice case, they're looking for a lawyer. And a malpractice case is worth $150,000. It's very hard to find a lawyer who will take that case because of the expense of litigating that case. When I was doing malpractice trial work, I wouldn't consider a case that would resolve in less than seven figures. Because I was also spending a lot of time writing legislation and doing pro bono work. So I'd only have two or three cases at a time, but $150,000 $200,000 case is barely affordable for any lawyer to take on because of the nature of the legal system. And that's a real shame. If you think of a modest, hourly fee that lawyers charge in the Bay Area, say $450, 90% of people can't afford that. One of the issues is whether we should have some kind of civil Gideon system, as they call it, so that people with civil beefs that are important and life changing, those people can find representation in the same way that criminal defendants always get representation.

Louis Goodman 29:47 

If somebody gave you 60 seconds on the Super Bowl, what message would you like to put out to this vast audience across the United States and beyond? 

Richard Zitrin 29:59 

Wow, that's a tough question. If it relates to the law, I'd want to emphasize that in my view, lawyers have a real obligation to put their own clients ahead of themselves, and that they have a further moral obligation to put society and the public ahead of themselves. They can do so much good if they do that. And in my experience, based on the people I know, and with students I've met, have a richer experience and a happier life. I don't think that's the whole 60 seconds. I guess I could get into a lot of stuff with the other 40.

Louis Goodman 30:37 

If someone wants to get in touch with you, what's the best way to do that? Is there a website to go? 

Richard Zitrin 30:43 

Well, they can go to www.richardzitrin.com that won't get them directly to me, but if they wanna get in touch with me, the best way is to email me at richard@zitrinlawoffice.com Z I T R I N. Or to phone my office at (415) 354-2701. If anyone calls me, I wanna try to make  sure I get back to them and oftentimes I can refer them to somebody who may be able to help them. I don't mind doing that, that's like a public service to me. 

Louis Goodman 31:20 

Is there anything you wanna talk about that we have not touched on? 

Richard Zitrin 31:23 

No, I don't think so. I'm glad we are able to touch on Roe and the Supreme Court, given today's world. I think that you've asked some really great questions. It's been very enjoyable to chat with you and I appreciate it very much. 

Louis Goodman 31:36 

I also wanna just mention one more time that you did write this book called Trial Lawyer: A Life Representing People Against Power. I've read a great deal of it and what I have read has been really interesting and I've really enjoyed reading it and I've learned a lot from it. So thank you for this book and your other publications and all the work for the legal community. Thank you so much for joining me today on the Love Thy Lawyer podcast. It has been a pleasure to talk to you. 

Richard Zitrin 32:06 

Thank you for having me. It's been a pleasure for me too. 

Louis Goodman 32:10 
 That's it for today's episode of Love Thy Lawyer. If you enjoyed listening, please share it with a friend and follow the podcast. If you have comments or suggestions, send me an email. Take a look at our website at lovethylawyer.com, where you can find all of our episodes, transcripts, photographs and information.
 
 

Thanks to my guests and to Joel Katz from music, Bryan Matheson for technical support, Paul Robert for social media and Tracy Harvey. I'm Louis Goodman.

Richard Zitrin 32:50 

We have had the good fortune of working for ourselves. Now, that can be a very tough task master. And of course there's the problem that the buck stops with you and that you've gotta make enough money to keep your doors open.