EP 916- The Power of Admitting When You’re Wrong with Judge Jessica Kruse

Episode Notes

Transcript

Announcer:

Welcome to Heels in the Courtroom where the trial lawyers of the Simon Law Firm break down what it takes to win in the courtroom and in life.

Elizabeth Lenivy:

Hello and welcome back to another episode of Heals in the Courtroom. I’m Liz Lenivy, and today I’m joined by Elizabeth McNulty, and we are very lucky to be joined by a special guest, Judge Jessica Kruse who is on the Circuit Court in Christian County, Missouri. Hello, Judge.

Judge Jessica Kruse:

Hello.

Elizabeth Lenivy:

Thank you so much for joining us. So Judge, I am so excited to talk about the topic that you actually presented us with. I approached you a couple weeks ago after having met you and watching you on a panel at another conference, and I was like, “She’s great. I got to get her on the podcast.” So thank you so much for being here. And I’m so excited to talk about this topic. But before we get into the topic, which is the power of admitting when you’re wrong, which is something I struggle with that I imagine many of our attorney listeners also struggle with, I do want the listeners to get to know you a little bit because you have such a great story and such a great journey to the bench. And so I know legal education, you are a graduate from the University of Tulsa College of Law.

Is that right?

Judge Jessica Kruse:

Yep, that’s correct.

Elizabeth Lenivy:

Okay. We’re in Missouri now. How’d you wind up in Oklahoma for law school?

Judge Jessica Kruse:

So I’m from Kansas originally by Wichita, little town, Newton, Kansas, and started my undergrad at University of Kansas, but very soon transferred to Southwest Missouri. I was married at the time and he owned some businesses in that area, transferred there and finished my undergrad. And because we own the businesses, we didn’t have a lot of flexibility to move from my law school. And so I was looking within a certain radius and found University of Tulsa. It was three hours doorstep to doorstep from our home in Monet, Missouri. And I enjoyed the campus and it’s a good school. So that also helped, but that’s why I chose University of Tulsa, an untraditional path. I got pregnant with my oldest daughter within a month of starting law school. I had to make some decisions about whether or not this was the right direction for me because certainly that changes things.

I’d been married several years. We weren’t necessarily planning at the right time. And to be quite honest, after having three children, I’m not sure there is a perfect time to have children, but she was born a week after my last final, my second semester. It definitely changes your perspective when you’re in law school and have a kiddo. And initially going into law school, my thought was to work for a large firm, work a partnership track. I had been an intern or a runner at Blackwell Sanders in Springfield. And so definitely had that exposure, mainly getting people’s lunches and making sure dry cleaning was picked up and taking partners to go get their oil changed, that type of very glamorous life as a runner at a big firm, but had pictured myself in that environment after having a child that sort of changes the amount of time you’re going to be able to spend.

I started working out of law school for a smaller litigation firm. We did civil defense litigation, a lot of men maldefense, some contract work, and learned a lot. I had great mentors within that practice. It was very family friendly. I had my second daughter while I was there, and then life changed a little bit. I went on my own and started my own practice doing a lot of everything, working to set up businesses, nonprofits, doing some guardian ad litem work in family court, representing parents in juvenile court. And that led to a meeting with an attorney who was looking at retiring and she did elder law work and I had no idea what that was, but talked to her about it on a Friday afternoon at this luncheon and was sitting in her office on Monday morning, learning everything I could about elder law, thinking this might be a good opportunity to add to my practice and brought on a law partner and we expanded what’s now Ozark’s elder law in Southwest Missouri and had that practice for several years.

I had a good friend of mine who was running for the circuit judge position in Christian County and I was on her campaign committee. So knocked a lot of doors, put up a lot of signs and yards, a lot of that type of work when you’re working on a campaign and she got the position. And shortly after she got the position, we heard that the associate judge was looking at retiring. And so this was an opening and many people came to me and said, “You should do this. ” And initially I said, “No way.” I saw what my friend went through when she went through this campaign and I just could not see myself as a politician. In our small counties, we run an election like the representatives do in Jeff City and it’s difficult and you don’t know how much money you’re going to end up spending, especially if you end up having an opponent.

So it’s a really difficult process. And I again saw what she went through. And so I was a pretty hard no for a long time. And then started thinking about it a little more and decided that it might be a good opportunity and I should take it more seriously and looked into it. And I did have an opponent through the primary, won the primary. And then shortly after that, I was appointed to the position because the judge had already retired. So that was the path to judgeship. I think the one thing that my path may suggest is that you should always be open to opportunities. And I don’t know if I ever had, and certainly I had in my mind a certain place where I wanted to be, but that has changed so many times. And it’s just because opportunities come along. And honestly, I feel where I’m at right now is exactly where I should be right now.

In my career path, I really enjoy what I do. And so it’s an interesting path, I think. I know some people that start out in law school thinking I want to be a judge and that’s how they gear everything along the way, but that was not me and just fell into it. And I, again, am really happy with where I’m at.

Elizabeth Lenivy:

You mentioned that you won the election to get onto the associate circuit, but then in 2022, you were appointed by the then governor, Mike Parson to the circuit bench. And that’s where you’ve been since 22.

Judge Jessica Kruse:

That’s right. Yes. Elected at the end of 2018, appointed at the end of 2018 to Division three associate in the 38th circuit. And then my friend, the person I was on the campaign committee for, she was appointed to the appellate court

Announcer:

In

Judge Jessica Kruse:

The Southern District. And so that allowed that opening for Division two. And so I had to apply for that. It also corresponded with an election year. So I was appointed and then no opponent. So essentially I didn’t have to run an election that year. It’s interesting in the smaller counties that it’s a position that is a combination of these appointments and elections and crossing your fingers that you never have an opponent, but it’s an interesting position to be in.

Elizabeth Lenivy:

So that saying there’s two ways to run a campaign, scared or unopposed.

Judge Jessica Kruse:

That’s absolutely accurate. That is true.

Elizabeth Lenivy:

Thank you for sharing that with us. The thing that I took from what you said, and you mentioned it yourself, is saying yes to opportunities and maybe having an idea of what you wanted to do when you went to law school, but then as you went through the process, life changes, perspectives changes, opportunities come and being able to pivot. And I think that maybe ties a little bit into what we’re going to talk with you about, which is the power of admitting when you’re wrong, maybe you could be more correct. I’m trying to lawyer my way out of having to say I was wrong. The word

Judge Jessica Kruse:

Wrong is so strong.

Elizabeth Lenivy:

But this is something that I know you’ve talked about and I am really excited to hear from someone who is on the bench. And I struggle with it if a judge asks me a question and I’m thinking, “I hear what you’re saying, Judge, but if I concede on, that’s a real problem for me. ” So I’m excited to talk to you about this. Maybe this is an obvious question, but I want to hear from you, but why do you think it is so rare for attorneys to admit fault or missteps?

Judge Jessica Kruse:

I thought that was an interesting question when I was reading the outline. When I first read it, my thought went back to when you hear parents introduce their children and they might say, “She or he really likes to argue with me, so they’re going to be a great attorney.” And so these little seeds are planted that if you’re really good at arguing to get your way, then being an attorney is the career path that you should be on. And so I think that just lays the foundation for people who do become attorneys and they think that arguing to get what they want, meaning we are trained in logic, we are trained in communication, we are trained in listing out all the points as to why we win, and usually winning is equated with being right. And so I think that’s probably why in our profession it is more difficult than other professions.

You think about the medical profession and being able to sit with a colleague in the medical profession and going back and forth on what you think a diagnosis should be, there’s a lot of give and take in that conversation and there’s a lot of, it could be this or it could be that. Why do you think it’s this? And that discussion doesn’t have to be, “I am trying to prove to you that I’m right about this diagnosis. The discussion is we want to do what’s best for the patient, so let’s have this conversation. What am I not seeing? Why is the treatment that I’m giving not working?” So it’s a different way of approaching it. In the legal profession, we start from the get- go with an idea that we’re trying to advocate for or for a client we’re trying to advocate for. And I think when you start from that position, you’re not having a back and forth discussion with opposing counsel, you’re having constant arguments on why I win and you don’t.

So it’s just something unique to our profession. And I think just having a conversation about why you might be viewing a case one way, but learning some information, you have to be able to pivot or change your viewpoint about your case so that you don’t put your client in a bad position. We will talk in a little bit probably about this sense, this advocacy, and I see it as you’re an advocate or you’re just a mouthpiece for your client. And if you’re just receiving information from your client and you’re just regurgitating that back to the court or an emotion without it being processed through this filter that we’ve been trained to use going to law school, and then you’re not really doing your client any favors because anybody could do that as long as they’re a good communicator. But we have training as attorneys to be able to filter that information and put it into the big picture ultimately with the idea that we may have to present this to a jury at some point.

So I do think that, again, just our profession can lend itself to this idea that it’s difficult to admit when the facts as we initially saw them may have changed or maybe there’s some more information we’re receiving that we have to plug into this big picture and it could change the way we initially saw the case. And that’s difficult to admit to the client, to the court, to opposing counsel, a lot of different factors to that.

Elizabeth McNulty:

Do you see that happening with attorneys that are in front of you that they’ll admit when maybe they were wrong about something or that they’ve made a mistake? And how do you usually respond if you see it?

Judge Jessica Kruse:

Yeah, I see it happening. So it can be as simple as I’ve missed this discovery deadline. And so they’re asking for permission to extend that deadline or to provide answers beyond the deadline and maybe they’ve just miscalendared it or they lost their secretary and their secretary was in charge of all of this information. And so now they’re just lost in trying to come in to court to clean things up a little bit, or it could be as significant as I know information about a witness and I know that’s going to hurt my case and I’m not going to disclose it in situations where it should be disclosed. Or I had a situation recently where I was being told by an attorney that there was a report that was going to be generated by an expert. I had been told this for months and months as an excuse for why continuances were necessary.

And I said, “If you have the report, it needs to be turned over by Thursday, by 5:00 PM, come to find out no information was really provided to the expert and there was never going to be a report.” And another attorney had to stand up and tell me that this was the case because the attorney that initially presented me the information was not backing down from that position. She was not admitting that she wasn’t going to have this report. And so it can be what I consider to be pretty minor, which would be missing a discovery deadline to something very significant. And so I do see it. I think the attorneys that can essentially fall on their sword and say, “You know what? I screwed up and I miscalendared it or I thought I had everything ready to go. I meant to get it sent out.

” If it was somebody else in your office, a staff person in the office that missed it, still blame yourself. It’s a training issue within my office and it’s ultimately my fault and I take full responsibility for it and we’re going to do a retraining within the office to make sure this is corrected, but I’m telling you it’s ultimately my fault and I apologize and I’m asking for an extension. I find that if an attorney can be honest about it and also not blame others and just ultimately recognize that they’re the person responsible, it lends … I find them to be more credible and I find them to be more credible throughout the course of the case. If they’re going to present something to me, then if they’re willing to admit when they’re wrong, if they’re presenting something to me, then I take it at face value.

I’m not going to question it as much as I would. Obviously, if somebody has flat out lied to me about having an expert report, if she’s in front of me on another case in the future, I’m not going to believe a thing she’s saying going forward. And that could have been a simple judge in my office, I thought I had provided this to the expert. Come to find out I did not. I apologize. I’m not going to have the report, but I am telling you that I am in their office this afternoon and I’m going to find out if they can get a report within 10 days. That is something I would receive differently because mistakes happen. And the thing that we have to remember in the practice of law is there’s a certain humanness to what we do and having grace for others for that humanness means that later on we can receive that grace when we screw up because it’s going to happen and we have to treat each other kindly in those moments.

And there are times where if it happens over and over and over again, then you lose patience with those excuses and you have to ask, “What are we doing to solve the problem?” And we can have those hard conversations, but again, if somebody comes to me soon, as soon as they find out and they’re open and honest about the reasons that caused it, then I find that to be a really good trait. And I think that they have more credibility in my eyes because they’ve done that.

Elizabeth Lenivy:

I think that’s something that should be emphasized one more time because that’s something I’ve struggled with is, and I think a lot of attorneys, we’re perfectionists. We don’t want to screw up. And we also really hate screwing up in front of our opponent. I never want to admit something like that, but the idea, and as you’ve emphasized that admitting when you have screwed up and then also owning up to it, whether it was someone else on your … And that’s happened to me before something didn’t get calendared and I missed a hearing and I had to dial in and I just go, “Judge, I’m really sorry. It didn’t make its way on my calendar and that’s my fault.” Because ultimately when it got scheduled, my paralegal knew about it, but also I knew about it. I just expected her to put it on there, but ultimately that’s on me.

But this idea and emphasizing that owning up to the mistakes and then owning them up to the judge builds credibility, right? That you’re not automatically losing all credibility because you have made a human error.

Judge Jessica Kruse:

That’s absolutely right. And so one thing I was thinking about before today, I was trying to think about how to, some kind of an analogy or what we can compare this to. And so recently I had come across these mystery puzzles. I don’t know if you’ve ever seen these puzzles. So they’re puzzles that you put together without knowing the big picture. And there might be- That sounds so stressful. Yeah. And I will tell you that I am not a huge board game person and certainly I don’t put together puzzles often. So it was an interesting experience. It was very frustrating and you were given a story. So you had some idea, at least the theme for the puzzle, you just didn’t know what the big picture was ultimately going to look like. So the most frustrating thing to me is when I was putting this puzzle together, for example, I found this piece and it looked like it was a part of a peacock feather because of the colors that were on this piece of the puzzle, it looked like there were feather strokes that were on this piece of the puzzle.

In my mind, I was looking for parts of a bird to go with this peacock feather because it looked so obvious this was a part of it. And so I’m looking for beaks, I’m looking for the feet, I’m looking for other feathers that looked the same way. And it took me 45 minutes and all these pieces are spread out and I’m spending so much time on this silly peacock puzzle that I think goes to a peacock. Once the puzzle was put together, it actually never went to a bird. It was part of the decoration in the wallpaper for this little room that was shown in this larger picture. So I spent so much time assuming that it was part of a bird. And I think that’s what happens when we get into the weeds of our cases. I think you’re receiving information from your client and you’re receiving small bits and pieces of what ultimately is a big picture.

And I’m in this unique role where once if a case does ultimately go to trial, I am seeing all these pieces being put together in front of me. And so I’m really the only one with the benefit of the big picture because both sides only had these little bits and pieces. So I think it doesn’t have to be necessarily that you’re wrong, but it can be that you are open to the idea that the information you’re receiving from your client, again, is just a piece of the puzzle that you’re trying to put together. And you’re doing your client a disservice if you’re not trying to fit it into the bigger picture. And if you’re ignoring facts that may fit in, it may not fit in with the narrative that your client has, but so you ignore them, that’s not a good thing. I think you have to take in all that information and understand that the big picture may look a little bit different than the way your client has presented it to you.

You as an attorney have the obligation then to be able to have that client control, have those hard conversations with their client and say, “I understand that this is how you view it, but this isn’t how it’s maybe ultimately going to be viewed when we go to trial. So we need to have some hard conversations about what this looks like. ” So it doesn’t mean you’re wrong, doesn’t mean your client is wrong. Everybody comes into these circumstances that could trigger litigation with their own lens and the way they view that situation, the lens with which they view it, again, isn’t wrong. It’s just they might view it very differently than the other side might view it and the outcome, the right outcome in those situations may be something that’s a little bit in the middle of what both sides want because of that difference in perspective, if that makes sense.

So again, I think as attorneys looking at these cases as if it is this mystery puzzle and you’ve only got the benefit of these few little pieces and you might look at those pieces one way, the first day your client comes in and you think, “I’ve got a really strong case here, but as you receive information, you may realize, wait a minute, we may need to have a hard conversation to look at this differently.” And that’s where that critical thinking component comes in. That’s where this difference between being a mouthpiece versus being an advocate comes into play, I think, being able to critically think how all of this is fitting together.

Elizabeth Lenivy:

That’s a perfect, I think, analogy for why this job is describing it. And in fact, I had a trial a couple of weeks ago where I viewed it very differently than how the defense viewed it and apparently how the jury viewed it, but the judge actually made a similar comment of the benefit of sitting here at the end getting to watch everything come together at once. Obviously, you all have your own perspective because you have lived, breathed this case for the last three years. And I think that’s also how I’ve been trying to explain it to clients when they get unhappy as well of, I know you have a certain way you view it. And as the attorney, I believe you, I believe you, I trust you, but you got to remember it’s going to be 12 jurors or a judge who does not know you, who does not know me really.

And they’re going to be seeing everything altogether and they’re going to hear someone say the exact opposite. So you got to think about it from their perspective. So I like that. I’m going to steal the mystery puzzle analogy, but from your perspective on the bench, are you able to tell as the judge when an attorney is just completely unwilling to see from the other side?

Judge Jessica Kruse:

Yeah, and that comes out in a number of ways. I can tell certainly when an attorney is picking up the energy of their very upset, mad client and the attorney takes on all of those emotions, whether the client is there or not. And I can tell that in how things are being argued to me when there are objections to a one-day extension on a discovery, getting discovery out, everything is a fight, a fight. I have had cases before where I’ve had requests for sanctions against the other side because they were so upset about something without even realizing that their own client was missing things, wasn’t doing the things they were supposed to do, but they were so angry at the other side, they couldn’t take a step back from that moment and realize that maybe this isn’t the most reasonable thing to do right now.

But if you’re just taking information from your client and regurgitating it in court, you’re taking your client’s emotions and coming into court with this anger, you’re not going to have the same credibility as somebody who can step back from that and be able to control your client’s emotions and expectations. I handle on my docket a wide variety of cases. So I have everything from family law cases to felony criminal to circuit civil to juvenile cases. And so I get to see attorneys in a number of different contexts. If I have a prosecutor, for example, who has maybe only received … I saw this happen in a jury trial recently and they for sure saw the defendant one way, the entire case, made them the villain of the story without necessarily looking at the vulnerabilities in their own case with the complaining witness. So ultimately the jury came back with a defense verdict.

In that case, it was a road rage incident. And so the complaining witness had a number of different road rage experiences, oftentimes with her being the person who was maybe the instigator. There were a lot of instances where she just found herself in those situations. And at some point you realize there’s a common denominator and she was the common denominator. So I think I’ll say it that way. And so instead of looking at that as being a vulnerability in the case, the prosecutor chose to make this defendant look like he’s the villain in the case. Well, the thing that was interesting to me about this when I, again, having the benefit of seeing the big picture, it’s not that the complaining witness was lying, but she had so many experiences. That was the lens within which she was viewing all of those interactions with this defendant.

In the incident, she was driving behind him, he turned his turn signal on to go one way, and then he changed his mind and turned back into the lane. In her mind, she thought, “He’s turned back into this lane because he’s coming after me. ” Because again, she had so many experiences where she’d been involved in these circumstances and she was driving in the middle lane, which you’re not supposed to drive in the middle lane. He was also driving in the middle lane, which you’re not supposed to drive in the middle lane, but it was interesting to me to see how this narrative played out in front of the jury because when he got on the witness stand, he was the most calm human. The defendant was the most calm human. He was testifying, which doesn’t always happen in criminal cases. And at one point he said, “I thought I was wrong for driving in the middle lane, but after I heard the evidence, maybe she was also wrong.” That was literally the way he testified.

He just came across as somebody completely opposite from what I was led to believe the whole time when I’m hearing bond arguments and things of that nature. So to me, it was just a reminder that there are moments where you have to look at these facts in your case and the vulnerabilities in your case and you have to think about it in a critical way. This isn’t a bad prosecutor. It wasn’t a situation that he didn’t work the case like he should have. It just didn’t end up being the way he had created in his mind based on the information he had received. So it’s a good example of, again, how things can change when the big picture starts coming together and that ability to pivot. And I don’t think it never really even occurred to him that maybe this defendant wasn’t the bad guy like the complaining witness thought the whole time.

Elizabeth McNulty:

Do you have any advice, because it sounds like maybe, I don’t want to say a theme with every lawyer in front of you, but just advice for how to maybe take a step back when you’re hearing a lot of different things from your client or how you think you should proceed with a case, what should lawyers do that are faced up against this idea that they have blinders on?

Judge Jessica Kruse:

If they have the benefit of being in an office with other attorneys, it’s definitely a good idea to sit and just run your theory off of someone else in your office who can give you some feedback, somebody that you trust to give you honest feedback. I think that’s really important because you can get in the weeds in your case and you can forget that what that bigger picture might be looking like. I think another thing is to go back and review the jury instructions of your case and figure out exactly what are we doing here. What is it that I’m supposed to be proving?

Where is it that I need to focus? Because I had a jury trial recently also with a slip and fall at a fast food restaurant, and there was no question that the injury was severe, a broken ankle in three different spots and surgery and pins and it was a severe injury. And so what defense counsel did in that case is really focus on was the floor even wet where she slipped? And there was a puddle of water close to where this slip occurred, but there was a lot of focus on the video and screenshots from the video and you really did not see any water where she slipped.

I think the defense attorney did what he needed to do in that case, which was really focus, I’m not going to focus my energy on the injuries or trying to disprove that she needed the surgery or attack that part. He really focused on the element that he needed to focus on. And I find that if you go back and you review those jury instructions from the beginning, you start with the jury instructions whenever you’re prepping a case, maybe even before you start giving your client advice on the best way to proceed, start with those instructions because that is ultimately the story that’s going to guide the story that you’re telling to the fact finder. So I think those two things, find a mentor to run the case by, go back to the elements of the case and get yourself back into that big picture mode where you can really focus on what are the things that are hurting my case?

What are the things that are helping my case? Literally sit down and write a column of good facts, bad facts, understand how you’re going to deal with the bad facts. You certainly disclosures to opposing counsel is different than talking to your client about those bad facts. I think that if opposing counsel isn’t asking you the right questions in discovery, you have no obligation to proactively give them information if there’s a process and there are rules and we have those rules for a reason, but I do think knowing as soon as possible what those bad facts might be for you so that you can have those honest conversations with your client. And that way if it does come up and oftentimes it will in some way or another, you’ll have A plan for how to address it. And also it helps in possible settlement negotiations, mediation, knowing where your weaknesses are and your vulnerabilities.

You can have those open and honest conversations with your client and the insurance carrier if an insurance policy is involved. A lot of times the sooner the better on those issues to try and cut down on some of those costs.

Elizabeth Lenivy:

I want to pivot a little bit here and focus. Obviously the reason we started this podcast was to try to reach out to other female trial attorneys. And I am curious, in your experience, have you noticed that women attorneys are judged differently when they’re admitting that they’re wrong?

Judge Jessica Kruse:

I don’t see it any differently. I’ve seen women that do it wrong. I’ve seen women that do it right. I’ve seen men that have done it wrong. I’ve seen men that have done it right. In my opinion, it’s how the information is provided and how that information is dealt with as opposed to whether it’s male or female. Now, I’m not certainly naive to the fact that women still can be perceived as more emotional or I think there’s still that perception that’s still out there with possible other attorneys. So I think when dealing with opposing counsel, you get a feel pretty early on for personalities and whether those personalities are going to mesh or not or how you approach the other side. I think delivery of information is so crucial on how that’s going to be received on the other side. So I’ve seen men who have been a little bit petty about this.

“I didn’t get this in, but Judge, you know what? They didn’t do it either. And it’s like you’re talking to two middle school kids and that’s really annoying. That’s annoying for me. And I think that can be annoying for opposing counsel if that attorney had just said,” Judge, I didn’t get it turned in. Period. Just leave it at that without this. “But they didn’t either. And men and women do that.

And I think it’s more of a personality thing than a gender thing. And so I find a maturity thing, honestly, a maturity in the profession. But I do think that there are some male attorneys that may receive that information differently if it comes from a female, if it’s delivered confidently, if it’s delivered professionally, if it’s delivered timely, that is crucial in how it’s going to be perceived. And I’ve been a part of some breakout sessions at conferences where there have been discussions about things like prosecutorial misconduct, when hearing stories about prosecutors. A lot of the stories were maybe from other states, but prosecutors where they found out that there was going to be the DNA evidence may not show what they thought it was going to show. And so instead of disclosing it, they just withhold it and they don’t provide the information. That leads to bar complaints, that leads to removal, that leads to all kinds of repercussions, not to mention repercussion for the defendant.

And so that is a situation that happens men and female. Again, it’s more of a personality thing than I think a gender thing, but I do think that it’s important for young female attorneys to be sensitive to how they’re going to provide the information. And maybe, again, if there’s a mentor in the firm, run it by that mentor on how that is to be provided, what that email is going to look like, and not to worry necessarily how it’s going to be perceived, just be professional about it. And if the other side doesn’t receive it, we have no control over how the other side receives something. So it ultimately could come back on the other side, not on you, as long as you’re providing the information. And again, as all attorneys, every attorney needs a reminder whether they’ve been practicing 40 years or whether they’ve been practicing three years, every attorney needs to have the reminder that mistakes happen to everyone.

And so being gracious to the other side when that happens.

Elizabeth Lenivy:

I think about this because it’s not uncommon for me to go in and it’s me and a handful of all male defense attorneys. And I’m like, ” Oh, I’m the only girl in the room again. “Right. And especially being 10 years into practice now, but so on the younger side still, I’m feeling I’m getting there. But I feel almost this need that a higher expectation to be a perfectionist and to get everything right and to not admit when I’m wrong because then it makes not only me look bad, does this make women look bad? It’s this weird pressure that sometimes I don’t know if the boys have to think about as much.

Judge Jessica Kruse:

Whether they do or not, they should, because we all want to be professionals and we all want to get it right. Being a professional means that when understand that you’re going to encounter those situations and opposing counsel knows that you are going to be the type of an attorney that if you do have something that has been presented as not correct, you have a reputation that you will make sure that it gets corrected and move forward. I understand where that comes from. And I think that’s always going to be in the back of really every female attorney’s mind, I think. But again, you don’t have control how the other side is going to receive it. I think the best thing that you can do is simply be professional, courteous, timely in any kind of disclosure that you need to make if you need to correct something.

And a lot of times it’s not the attorney’s fault, it’s because maybe your client didn’t do the thing that they were supposed to do. Maybe they didn’t provide the information to you in a timely way, or they thought when you were requesting all the credit card records, that didn’t mean the credit card for the company, that just meant their personal credit card. So they didn’t understand the question that was being asked. And when you provided only part of the information and opposing counsel comes to you and says,” I know they have this LLC and I didn’t see anything about the LLC. “You can say,” Maybe my client misunderstood what I said and we’ll go back to the drawing board and look at that. “You can’t have that burden as the attorney to feel like there’s a fault necessarily for that. Mistakes can be made without feeling like now I’m wrong and they’re going to walk all over me because they know that I’ve admitted I’m wrong.

Elizabeth Lenivy:

I think it’s also sometimes a fear of, is the judge going to think I’m incompetent? This conversation is making me feel better that judges recognize we’re human.

Judge Jessica Kruse:

Oh, judge’s practice law. We came from the time where you’re accountable to clients, you’ve got busy schedules where you’re in multiple counties or multiple courtrooms on any given Wednesday morning. And we understand the practice of law. Absolutely. And if a judge says they aren’t giving attorneys grace for that, then I don’t … Yeah, that’s right. But that is absolutely not how I see it. And most judges I know would never look at it that way. What we do see though is when things happen multiple times, we do have a memory for that. And so if you do find that something wasn’t calendared correctly, understandable. However, if it happens week after week, then that is going to start to affect credibility and we’re going to accept excuses only to a certain level, if that makes sense. So I don’t think it’s something that should be certainly not coming away from this conversation thinking that if you always are open and honest and give a good excuse, a judge will let that go because we do have good memories for things.

But I do think, again, mistakes happen and there is nothing wrong with being open and honest with a judge about that. And again, does not affect how I see that attorney. I never see those attorneys as incompetent. In fact, it’s the opposite of that. It gives me more respect for them as a person because I do find that I know it’s difficult to do that. I know that mistakes happen, but I have a lot of respect for those attorneys that can be open about it and just move on.

Elizabeth McNulty:

Do you notice any difference from the jury’s perspective from when a male attorney makes a concession or admits that they’re wrong about something where that builds credibility, but if a female attorney does it, it makes the jury no longer trust that attorney?

Judge Jessica Kruse:

I have not noticed that in my courtroom. What I do see is juries being very much turned off by counsel who takes on this, I’m the white knight coming in and they’re the evil other side. And so you can only side with me. I think juries have very little tolerance for that. And I think that attitude can come across in a lot of different ways. This kind of goes into talking about being empathetic with the other side, because in front of juries, they pick up on everything. And I’ve talked to a lot of juries after we’ve been done with the trial and getting feedback on what they thought was going well, and they have zero tolerance for cross-examination of opposing parties that end up being petty and mean and attacking. They pick up on that. And for example, that slip and fall case, I didn’t have any attorneys who were doing that.

Our juries come from all walks of life, obviously, and they have families that have all these experiences and they bring that all with them into the jury room. So there was a woman who was testifying and she, at the time of this incident, was a 16-year-old working at this fast food place, right? And she was doing everything she could to help the person that fell. She was getting ice.

She was doing everything she could as a 16-year-old. There were a lot of questions asked of her as to, why did you not mop up this water? What was happening? And she said, “I was behind the register, so I didn’t even know what was going on out there.” Oh, so your job was only register, your job wasn’t this and this. And it was this. There was some … I looked at the jury’s faces and at that point I was like, “Oh, this isn’t maybe going very well.” Because again, they come from backgrounds where they themselves may have worked a fast food place or they may have a kiddo that’s 16 working at a fast food place right now and they know that 16 year olds are 16 year olds.

So that’s the type of thing when you’re talking about empathy for the other side, just keeping in mind that juries pick up on that more than they pick up on whether it’s a male attorney that’s admitting something or a female attorney that’s admitting something, it’s how you’re handling the information and all cases are going to have bad facts. So it’s just how are you dealing with those bad facts? And are you going to be open from it from the beginning just in opening arguments saying, “You know what? We understand our client’s blood alcohol level was this. We understand that. However, there was also an obligation on the part of this person, and this is what we believe to be the case.” So just getting it out there and whether you’re a male attorney providing that information or a female attorney providing that information, I think jurors just appreciate the fact that you’re addressing it and you’re not trying to hide it because jurors are not stupid and they don’t like it when … They take offense when they think that attorneys are trying to manipulate or play games and they’ll pick up on it.

So I think that is probably the advice I would give in that situation, if that answers the question.

Elizabeth McNulty:

Oh yeah, perfectly. That poor 16 year old.

Elizabeth Lenivy:

And it’s something that I’ve been very lucky to learn from really great trial lawyers. And something that they always emphasize is you can’t go in and look like you’re beaten up anyone, especially someone like that. And it’s an idea of you got to match the witness’s energy. If the witness is being combative and hostile, now you’ve got a little bit more roof to be similar, manage their energy. But for women in particular, the thing that I learned this as a very young lawyer, my mentor told me this of as a female trial lawyer, you get up there, you start arguing with a female witness and it gets ugly, it’s going to look like a cat fight and the jury’s not going to remember any. They’re just going to be focused on you fighting as opposed to the points that you’re trying to make. So having to be very careful about that and then thinking about the gender dynamics of that as well.

But that sort of makes me also think about so much of this has been laying things out matter of fact, making necessary and reasonable concessions, but obviously a big part of trial is also emotions. And I think that’s something that I’m still working on is how to regulate my emotions because I get very worked up about things. I get very defensive of my clients. I want a mama bear. I want to protect them. But what advice do you have for attorneys as far as when is the right time for a motion? When is it not? How does that play with credibility and just this idea of, I guess, emotional regulation?

Judge Jessica Kruse:

Yeah. I think that’s natural for you when you’re working with somebody for as long as you typically do, especially if a case is going to jury trial, you’ve probably had that case for 18 months, 24 months, longer, maybe working it up, understanding their family dynamic, understanding what a verdict might mean for them. All of those things are riding on you during that time. I think in those situations during a trial, for example, that’s when it’s a really good idea to have a second chair who can buffer between you and your client. So you have somebody there. So when your client hears something that they don’t agree with or they think is wrong, they have somebody to nudge and write down and somebody to handle that so that you can stay focused on what you need to do as an attorney in that case. I think that can be a helpful thing.

Even if that second chair maybe hasn’t been involved in the case, if they have some extra time during a day, just come sit with me and help me with my client. Being reminded that you’re doing a job for this client, but their view of the case doesn’t have to be your view of the case. Again, making sure that you’re taking that step back, looking at the big picture, it’s difficult to separate those things. Again, maybe in those situations, it’s also helpful to have someone in the office that you can go over the facts with them and just get their feedback to get that outside perspective because it’s so easy for you to get caught up in those weeds and being able to step back emotionally and logically from what it is that you’re trying to prove because they might point out your client maybe didn’t do this correctly and could have done this differently and it’s nice to have that perspective.

Understanding that’s what you might hear during trial and preparing your clients, this is what we’re going to hear in trial. Exactly like you said earlier, preparing them that the other side is going to testify the exact opposite. They see it completely different than you. Be prepared for that to happen. Also, understanding that you yourself may not have that big picture yet. So making sure that you’re constantly being humble and checking yourself to make sure this is my client’s story, my client feels very passionate about this, but is there something I’m missing? Is there another side here? Is there an extra piece of information? Because maybe it’s just not fitting as you’re receiving the information, it’s not fitting together exactly like your client is saying it’s fitting together. The critical thinking component is really important throughout the process also. Coming in on motion arguments, if your client is upset because they feel like the other side isn’t having to follow the rules like they have to follow.

I see that a lot. Why are they getting away with not responding to discovery when I’ve provided you everything in a timely fashion now they’re getting all these extensions, just reminding them, “You know what? At some point we may need an extension. And so I understand you’re frustrated and I’m monitoring it and I’m doing what we can do to follow the rules. I understand that you think they’re getting away with something. Just know that the judge is watching all of that and the judge is understanding that they’re getting a lot of extensions, but we’re going to be afforded those extensions too if we need them instead of coming to court right away with a motion for sanctions.”

That is going to depend on the dynamic that you have with opposing counsel too. So everything I’m saying is with that little caveat, we can be very reasonable, but you can’t control what that other side. And I do recognize that there are many attorneys who can be very unreasonable in those moments and very difficult to work with. And that changes how you approach everything that you’re doing on the case. Always having that buffer between you and the client is helpful. And it could be your legal assistant or paralegal that’s sitting there also because they also get very involved in the cases in the roles that they’re in. They’re often the front line, the people that are taking the phone calls when your client has had a really bad day and just wants to vent or provide new information because they’ve just found something out and they’re excited or angry about that information.

So your legal assistant or paralegal can help also be a little bit of that buffer.

Elizabeth Lenivy:

I’m thinking about some scenarios or potential scenarios where you’re standing up in front of the judge, maybe you’re out there on a motion, argument, discovery dispute, whatever it is, and suddenly you get handed a piece of case law from opposing counsel that you are not aware of, you did not know of, you did not know it was going to be an issue. And it seems to indicate that maybe you aren’t exactly correct, a. K.a. Wrong. What is your advice for that attorney in that position?

Judge Jessica Kruse:

I think, first of all, just understanding that it is unrealistic to think that you as an attorney will know every single piece of case law with respect to any subject matter. You’re doing civil litigation. Civil litigation encompasses so many different types of cases. The way I would view that, if you’re handed that case in the middle of argument saying, “You know what, Judge, I want to take a minute to review this. And if I could have 10 days to brief this issue for you, I would like 10 days to brief it. ” Because certainly I also hear so many different cases throughout a day. Again, from domestic cases to felony criminal to circuit civil to juvenile cases, I may have all of those cases on my docket on a Wednesday. So I have no idea what the most recent case law is. I just want attorneys to get it right and provide me with the guidance that I need so that the appellate court doesn’t tell me, “Hey, you know what, Judge Cruz, we had this case out here and you looked at these facts and you didn’t follow what our case law, what our appellate opinion said.

And so now we’re giving it back to you to redo.” I don’t ever want that to happen. So I absolutely want to have as much guidance and case law to support whatever it is that’s being argued when I make a decision. I’m always giving attorneys time to brief an issue. And so I think it’s really important that you don’t try to on the spot come up with an argument based on case law you’re just handed. You may be able to distinguish that case in many ways from the case I’m currently looking at or that you have. You want to take the time to review it and think about it. So I also don’t think it’s ever a good idea to rely on what opposing counsel said this case says. Be confident enough to say, “Okay, I really appreciate you bringing this to my attention. I’m going to look at it.

I may be wrong about this, but I want a minute to look at it to see if this really does fit the case that we have. And I want to compare it to the other cases that I’ve pulled that suggest that what I’m arguing is correct.” I would advise never make that decision on the spot in a motion hearing to try and recover and make some argument based on case law you haven’t had a time to thoroughly review. Because there are many times where attorneys are presenting me cases and they’re making good arguments. They want to point out the different paragraphs that they believe applies to this case. Sometimes when I look at the case as a whole, I just don’t look at it the same. And again, it’s not because they’re wrong and I’m right. It’s just we’re looking at things a little bit differently.

And so if I was in your shoes in that moment, I would never want to commit to a certain position with respect to that case. I would want the time to review it. And I can’t think of a judge that I know of that would not allow you time to brief it because as judges, we also want to get it right. I’m telling attorneys all the time, I’m going to make a ruling. If there’s not case law to guide me on how I should rule, I welcome the appellate court to tell me if I need to think about this differently. I will never be upset if I’m overturned or something gets remanded to me so I can make a ruling consistent with the line of cases that they believe should have applied here. So we all want to get it right, and that’s why it’s dangerous to start arguing if you don’t have a good understanding of what that case is, if you haven’t had time with that case.

Elizabeth McNulty:

We’ve been talking a lot about lawyers admitting mistakes and you urging them to try to see the whole big picture. Can you think of a time that a lawyer stood out to you for admitting fault or showing empathy?

Judge Jessica Kruse:

There are many instances in court where you are reminded that the attorneys are human and life happens. And so there have been some circumstances where maybe we’re getting ready to try a case where at pretrial and the wife of the lead attorney ends up going into the hospital and has to have a stent put in. And when I’m hearing those types of motions for continuance, it rubs me the wrong way if opposing counsel is still arguing that we go forward to trial. I had a situation where we were probably weeks away from a jury trial and having a lot of pretrial motions were coming in. We were teeing it up, certain it was going and one of the parties, it was a construction business and the son who also a litigant, but so was the father, so was the father’s spouse, but the son ended up going in with just a major medical event occurred that was totally unexpected.

And I did hear argument from the other side about whether or not we should still go forward. That is definitely not seeing the humanness of a situation. Oh, if I’ve had attorneys in front of me whose children have committed suicide and that affects their practice for years. There are many things that could be triggering about that. Their sensitivity to holidays that could trigger memories and understanding that around the holidays, we maybe aren’t going to be setting a lot of things for this attorney around the holidays. And it’s not necessarily that it’s on me to remember that, but making sure that counsel, when they’re dealing with one another, understands that. I had a situation where there was a defense attorney who his daughter had passed and it was awful for our whole legal community when that happens, but this had been a couple of years removed and it was around Thanksgiving and he was waiting for a plea offer from the prosecutor and he had received it maybe two days before Thanksgiving, but received it in the mail.

My hearing was that next week on a Wednesday and there was discussion from the defense attorney about he had not had a chance to run it by his client who was in custody, so that’s an extra layer that makes it complicated to run an offer. And the prosecutor said, “That offer now has expired because it’s the hearing. Today was the day that it expired.” And I said, “Nope, that’s not what’s happening here.” I said, “First of all, just with the mail service and Thanksgiving in the middle and a person in custody, but also, and defense counsel had a very emotional response to that, not in a mean way, but just, Judge, he doesn’t understand this is a difficult time for me. And as a reminder, this is what my family experienced and the whole courtroom, you could have heard a pin drop.” It was just a really awful moment and the prosecutor very quickly apologized, but it was instead of taking a moment to be curious about why that maybe wasn’t able to be provided to the defendant in a timely way, instead of taking the moment to be curious about that, it was a moment where there was a knee-jerk reaction and a moment to maybe prove that he was a tougher prosecutor.

And I just felt that was not taken very well by anybody in the courtroom. So again, just a reminder that every single person in the courthouse is a human and things happen and making sure that you have empathy for others. And I find myself, I’m paying attention to how people are treating each other in my courtroom, how counsel is treating each other, how they’re treating their clients. And it makes an impact on me when I see them being kind to one another. And it makes even more of an impact on me when I see that they’re not empathetic to just life situations that occur. And there’s no place in that in our profession. And I know that the Missouri Bar has put an emphasis in the recent years on mental health in the profession. And I think that this is one of those key issues.

I think we have to be kind. We have to be kind and we have to be empathetic. And that’s why this subject, I think, is so important because admitting that you’re wrong is something that is human. And there’s not one single human living on this planet who can say that they are always right and that there’s never been a moment that they’ve been wrong. And to think, to have that expectation of yourself, I think is unrealistic. And I think it also adds to the mental health issues that we see amongst attorneys. And I think that the conversation needs to be had more. And I think it needs to be a subject that we teach to law students in law school about how it’s okay to be wrong. And this is how you approach it when you are wrong, because otherwise we’re just being too hard on ourselves as attorneys, as humans.

It’s not realistic.

Elizabeth Lenivy:

Judge Cruz, thank you so much for your time and your insight and your advice and your stories. And this has been a … I’ve really enjoyed this conversation and I hope our listeners have too. So thank you so much for joining us.

Judge Jessica Kruse:

Thank you for having me on. This has been a great experience. So thank you so much.

Elizabeth Lenivy:

And thank you to all of our listeners. Remember, if you have any comments or questions for us, you can reach out to us at [email protected]. Remember new episodes drop every other Wednesday and until next time. Bye guys.

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