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Taking a Look at Trial Penalty, Expert Persuasiveness & Credibility

May 25, 2021

In this episode… 

Matt Morr and Mudasar “Mo” Khan, commercial litigators at Ballard Spahr, reflect on expert persuasiveness (both reports and on the stand) and credibility (from body language to ensuring story consistency). They note that their favorite experts shine in two areas: first, they continually work on their writing and speaking skills, keeping at the forefront in the art of persuasion; and secondly, they work closely with the attorney team to ensure consistent themes in the stories they are telling at trial.

Mo and Matt also discuss Ballard Spahr’s commitment to pro bono work and their own interest in prisoners’ rights. This intensity has been transformative for clients like Robert Francis, whose life sentence was overturned thanks to the firm’s dedication to his case. They discuss whether trial penalty is common, and what is at the root of this controversial concept. They also go into detail on the power of organizations like the National Association of Criminal Defense Lawyers (NACDL) and Ballard Spahr’s commitment to this organization, sharing advice for those moved by the work being done in this area and who want to get involved with commutation or prisoner’s rights work.

Episode Transcript:

Note: Transcript has been lightly edited for clarity. 

Host: Russ Rosenzweig, CEO and Co-Founder, Round Table Group

Guests:

Matthew Morr: Partner, Ballard Spahr

Mudasar “Mo” Khan: Associate, Ballard Spahr

Introduction: Welcome to Engaging Experts, the podcast that goes behind the scenes with influential attorneys. Our guests will describe their practice and expertise. Then, we will go deep on various topics related to effectively using expert witnesses.

Russ Rosenzweig: Welcome to this special trial penalty episode of our podcast series Engaging Experts. I am Russ Rosenzweig, CEO, and co-founder of Round Table Group and the host of this Engaging Experts podcast series. Today my guests will be Matthew Morr and Mo Khan from Ballard Spahr. We will be discussing how Matt and Mo use expert witnesses in their litigation practice. We will also be discussing and highlighting their commitment to pro bono service, their emphasis on prisoner’s rights, recent international press, and accolades around achieving a rare commutation for a prisoner serving a life sentence named Robert Francis in the last days of the Trump presidency. We will also be learning about the trial penalty. Before we dive in, let’s have a quick word from our amazing sponsor Round Table Group and me.

Announcer: This episode is brought to you by Round Table Group, the Experts on Experts®. We’ve been connecting attorneys with experts for over 25 years. Find out more at roundtablegroup.com.

Russ Rosenzweig: Matt and Mo, welcome. I am so excited to have you here. How are you both today?

Matthew Morr: Hi Russ, this is Matt Morr, I am doing well. We are excited to talk to you today.

Mudasar Khan: This is Mo. We are excited to be here. It is great to talk to you, Russ.

Russ Rosenzweig: Thanks for being on my show guys. Matt let’s start with you. Tell us about college at the University of Colorado and how you ended up attending law school and your decision to practice law.

Matthew Morr: I am a Colorado native, and I have tried to leave Colorado twice, both times unsuccessfully, and I have been back in less than a year. I went to Colorado College for my undergraduate degree, which is in Colorado Springs, and studied economics and politics.  I had thought about going to law school for a good part of my time as an undergraduate. A dispute with my landlord, where I figured out, she owed us some attorney fees and penalties, made me want to go to law school more. After I finished at Colorado College I went to live in Vail. I worked at the buyer’s office for Christy Sports, which is a ski retailer here in Colorado and Utah. I do a lot of skiing and I had a nasty wreck where I hit a clump of trees. Luckily, I was okay, but when I got back to my place that night, I thought I should probably start looking to go to law school or do something with my life because this will not end well if I keep having accidents like this. So, I left Vail, worked for LexisNexis for a year, and then went to law school.

Russ Rosenzweig: Well, there is nothing better in my opinion than making career decisions while on the slopes in Vail. Tell us about the end of law school when you decided to focus on your current area of practice and specialization and how you also made the decision to be immersed in some pro bono work.

Matthew Morr: I was looking at both law firms and potentially doing a judicial clerkship. I had interviewed with a small boutique law firm called Petrie Bauer at the time and it was a collection of litigation attorneys that had been at Kirkland and Ellis when they had a Denver office. When that office closed, some litigation boutiques popped up. I had interviewed with Drew Petrie, the named partner there at the firm, and liked him. I thought this is a person I could work for, learn from, and have a mentoring relationship with. Even though it was a small firm they were doing big firm work and had very interesting intellectual property cases, contract cases, and a steady stream of work. I ultimately decided to go work with him at that firm and in one form or another, the people I started working with at that firm back in 2003 or 2002 as a summer associate are people that I work with today.

Russ Rosenzweig: Wow. I want to dive in about expert witnesses and Robert Francis, but first, let’s talk about you Mo. I am particularly interested in your journey from college to Georgetown Law I spent some time at Georgetown while I was interning for my congressman in the 90s. Georgetown is the place that we decided to start our business venture called Round Table Group. The first one hundred expert witnesses we recruited were from the ranks of Georgetown University professors, so I’m eager to hear about your journey.

Mudasar Khan: My journey started in Colorado. I did my first year of law school at Colorado University Boulder and I transferred to Georgetown Law, but similar to Matt, I could not escape Colorado and returned because I missed the mountains and could not deal with the District of Columbia humidity. I did enjoy my time at Georgetown. I think one of the reasons I do not regret going to Georgetown is because there is that field of expertise, which was a benefit. Many of the university’s professors are the best, or renowned, for what they do. That is what brought me to Georgetown.

Russ Rosenzweig: The main topic of this podcast series is on usage and best practices for expert witnesses. I have been excited to talk to you both because your firm, Ballard Spahr, was one of our first clients in the mid- 90s when we accidentally started pioneering the expert witness search and referral industry. We have this long history with your amazing firm. I would love to hear any comments or thoughts you both have before we dive into the pro bono world. In a more traditional commercial context, how often do you both need to find expert witnesses during your commercial litigation practice? How important are experts in the course of your work and any other comments that your peers might want to hear about best practices for finding. engaging, and managing expert witnesses?

Matthew Morr: First, I want to say that Ballard has appreciated your help over the years. I have spoken with colleagues in Philadelphia that work on high-level, complex cases and with your help have found the experts they needed. We greatly appreciate that and when thinking about getting an expert I look at three things. First, are they truly an expert in this area? The second is, are they going to be persuasive? The third is credibility. You want someone great on paper and that is going to put together a report that is a persuasive, well-written document they can defend on the stand, whether it is in a deposition or a trial. When I say credibility, I would like to think that all my cases are perfect, but they all have hitches or holes with which we must deal. You want an expert that can credibly cope with those issues and still push our themes forward.

Russ Rosenzweig: Are you able to kind of discern those things just from interviewing experts, or does it take some time? Do you need to be engaged and work with them first?

Matthew Morr: I think you need a little bit of time, and more than one opinion. Someone like Round Table Group that can do the vetting and talk to people they have worked with before is helpful. I will give you two examples of contrasting experts. The first expert that I worked with was Bill Carey. He sadly passed away a couple of years ago and we worked with him quite a bit on lost profit cases. He was a certified public accountant, who in his spare time, judged mock trials, took continuing legal education courses and was well-read on persuasion and how to talk to judges and juries, and he worked a lot on his writing. Certified public accountant, I do not say this to be mean, sometimes need help on their writing. It is informative, but not always the most entertaining. He did a good job of putting together narratives and stories. Early, in my career, I had the opportunity to work with him on some cases that went to trial and he was a huge asset. Not only was he an expert in the field, but he also had the added value of being able to help us narrow down our themes. He would watch our opening statements to make sure they tracked with what he said. For folks that have been to trial, there is a process where you start narrowing down themes and phrases. He was a big help in doing that, and as a young attorney, it was a great experience. I learned from this expert, and we worked well together. When I contrast that to some experts, I have seen on the other side that is not the case. What they are doing is not consistent with the persuasive story the lawyers are trying to put together.

Russ Rosenzweig: That must have been so inspiring and maybe a little rare to have your first expert witness be a model for excellence and self-study. It reminds me of my own undergraduate experience at Northwestern. I was on the debate team and had the privilege of studying with some of the great persuasion and rhetoric experts of our era, including the amazing David Zurowski, who was the Dean of our School of Speech. Your story is inspiring us, Matt, as a company we begin our second 25 years, to start focusing more on training and education for experts. There are a lot of excellent experts out there who are not necessarily excellent expert witnesses. One of our goals here, and maybe you and Mo can help, is to equip experts with cutting-edge, new training and theory on persuasion and rhetoric, and how experts can dazzle with excellence in the context of report writing, deposition preparation, and trial performance. Those are topics that we will be covering in some upcoming podcasts.

Matthew Morr: It is important and body language is another area people need to consider. One of the best cross-examinations I have ever seen was by my partner Drew Petrie of an expert in a lost profits case. During the direct examination, the expert witness was sitting with great posture, sure and confident. In his cross-examination, Drew Petrie’s first two questions were able to impeach him. As the examination went on, the guy’s posture worsened to the point that by the end of the examination, he was practically hiding behind the witness stand.

Russ Rosenzweig: Wow!

Matthew Morr: The jury is only seeing his eyes at the top of his head. He is not looking anybody in the eye, and there was nothing that could be done on redirect because the guy’s body language told the story.

Russ Rosenzweig: Right. That is so important. There is even a book out there called What Everybody is Saying, which is a great primer on the effective use of body language, especially for expert witnesses. Mo, do you have anything to add just on the topic of techniques, best practices, and checklists for mastery for litigators in the use of expert witnesses?

Mudasar Khan: You need to look at two sides of what the expert is going to do. They are going to prepare your expert report and you need good persuasive writing. Many ties are not considered in the initial stages. You also need a good witness and not someone who can give you a good expert report. And so, I think the vetting process to find a good witness is important.

Russ Rosenzweig: Quite right. I am eager to dive in with you both on the Trial Penalty Clemency Project, Robert Francis, the NADCL, and former President Trump. My first question is how do you guys have time for pro bono prisoner’s rights work because you are both elite litigators at a top firm?  Tell us about the culture of pro bono work at Ballard Spahr and your desire to focus on that.

Matthew Morr: Pro bono work is a key part of Ballard Spahr’s culture. When came here about seven years ago and coming from a small firm to a big firm, one of the first things I noticed was Ballard Spahr had a pro bono coordinator. It was Mary Gay Scanlon, who is currently a Congresswoman from Pennsylvania, and the wife of Ballard’s chairman. That immediately told me Ballard Spahr takes pro bono seriously. Like all law firms, we have hourly goals and expectations, and pro bono hours count towards those goals. I am on the Associate Evaluation Committee and one of the things we look at is people productivity. A pro bono hour is treated the same as an hour for the firm’s biggest client. We take pro bono seriously and believe that as lawyers it is our job to give back where we can. You asked how we find the time? We are fortunate that the firm supports us in finding the time and views it as critical to the development and success of its lawyers.

Russ Rosenzweig: That is inspiring, and I hope other top lawyers who are listening will use this as a model for expanding their pro bono practice. It is important to us as a company that prides itself on helping as much as we can when any of our clients are doing pro bono work and need expert witnesses. That is where we love to shine, and we do that work free of charge. I am keen to hear from you both within the context of that kind of excellent pro bono culture. How did you decide upon spending time on prisoner’s rights? How did you come across the Trial Penalty Clemency Project? How did you find Criminal Defense Lawyers? Give us any background and context on how you ultimately decided to help Robert Francis?

Matthew Morr:  For years, The National Association of Criminal Defense Lawyers (NADCL), and Ballard Spahr, have worked together on pro bono projects. For example, at the end of the Obama Administration, there was a clemency project where more than 100 Ballard lawyers partnered with the NACDL to try and petition for nonviolent offenders to receive clemency for 29 prisoners and those twenty-nine people received their freedom.

Russ Rosenzweig: Amazing. Let’s talk for a second about the trial penalty, because many of our listeners are not lawyers. They are business leaders like me, and I was just so bothered and moved by this concept when Matt was explaining it to me a few weeks ago. Give us a little bit more color on the trial penalty. Is this common? Is it still happening these days? Is it legal? Give us a little bit more context.

Matthew Morr: I had worked on that project and submitted a petition, and the person I submitted it for was in prison for drug charges that under today’s standards, probably would not even be a misdemeanor, but he hit the three strikes and you are out criteria. Unfortunately, during the arrest, they found a weapon in the house, and it was deemed a violent crime. Debatable, but ultimately, we did not get clemency for this gentleman. It was one of the biggest losses I have had in my career.

This past summer I received a call from our pro bono coordinator, and she asked if I was interested in trying another one of those clemency petitions. Recognizing that it might be harder to get clemency under the Trump Administration than the Obama Administration, a different strategy with the right to a trial piece was needed. I said I would be happy to do it. A couple of months earlier, Mo and I had finished working on a hard and stressful commercial case. The kind of case where you see a little bit of the underbelly of the legal world where the opposing counsel took positions that were not too honest. It was stressful for both of us. I asked Mo to help me because I wanted to allow him to try and do some good for the world. He jumped right in and did a fantastic job in researching Mr. Francis’ underlying case and coming up with the arguments that ultimately got him out of prison.

Russ Rosenzweig: Amazing. Let’s talk more about the trial penalty. Many of our listeners are not lawyers. They are business leaders like me, and I was so bothered and moved by this concept when Matt was explaining it to me a few weeks ago. Give us a little more color on the trial penalty. Is this common? Is it still happening these days? Is it legal? Give us more context.

Mudasar Khan: To answer your first question, it is happening today. The root of the trial penalty is prosecutorial discretion. Prosecutors can charge defendants with various crimes and enhance those crimes based on certain factors. In the Robert Francis case, his initial charges were nonviolent drug conspiracy. His plea offer was 25 to 30 years, but if he did not accept the offer, the prosecutor threatened to enhance the number of drugs in the charge. The prosecutor has the power to adjust the charge and the severity of the charge, and through that power, can threaten someone to discourage them to go to trial and settle, or give them a harsher sentence if they do go to trial. Unfortunately, there are not many arguments that say it is illegal in terms of jurisprudence that exist currently. That being said, this is why the work that the National Association of Criminal Defense Lawyers is doing is really important because this does affect someone’s right to trial. It is coercive and it discourages them from going to trial, even when they have meritorious arguments because of the risk. In this case, Robert Francis this could go to prison for life.

Russ Rosenzweig: Anything to add Matt on the trial penalty?

Matthew A. Morr: The only thing that I would add is it implicates your constitutional rights under the 6th Amendment and the right to a fair trial. As someone looking at an enhanced punishment and life in prison, Mr. Francis by using his right to have a jury of his peers decide whether he is guilty or not guilty just seems unfair. It was for Mr. Francis and I am very glad that he is free today.

Russ Rosenzweig: Mo, I would like to hear more about what communications were like with Robert Francis when he learned that a famous elite law firm would be representing him. Second, what were your communications with him like throughout the process, and what he said when he heard the good news?

Mudasar Khan: We had various forms of communication with Robert throughout the process. When we first started representing him, we informed him that we would be representing and communicating with him via email. But throughout the process, before his petition ended up being granted, he put me in contact with his sister. I kept his sister involved and got information from her throughout that process. Finally, we were able to talk with him in person on the phone and we talked to him the day after he was released from prison.  I also talked to his sister the day we found out he was getting released. Both conversations were pretty amazing. His sister had no idea that his release was possible When she found out he was being released she was crying, and you could hear her yelling to all her family members, telling them “Robert is getting out!” “Robert is getting out!” The amount of disbelief, shock, and gratefulness is cool. Talking to Robert the day after he was released was amazing and hard to put into words. Matt and I both gave him a call and he told us how grateful he was to us. He was able to hold his grandson for the first time. He was born while Robert was serving his sentence.  He said, “‘It is crazy that I can look outside and not from a prison cell.” It was amazing to know that we helped someone get out of prison. He is now at home, not in prison versus being sentenced to life.

Russ Rosenzweig: This is so inspiring. Many of my friends who are lawyers tell me they entered the field of law to try and change things and to try and change people’s lives. Most of them do not, but you guys did. Congratulations. What a story.

Matthew Morr: Well, thank you. I will never forget the phone call we had with Robert because even over the phone you could feel the pure joy that he had for being home and for getting out of prison. He talked about being in prison and dreaming about being at home. Then he would wake up and realize he was still in his cell. After being released, he kept pinching himself and saying, “This is real. It is not a dream!” He was incredibly gracious and nice. He said, “What can I do for you guys?” “What can I do?” Both of us said, “Live a good life and make the most of your life.” “We were happy to help you and give you the help you deserved as a Denver sports fan”. I knew he was a California sports fan, so I requested that he switch allegiance to the Denver Nuggets and the Denver Broncos. Even as happy as he was, he politely declined.

Russ Rosenzweig: I was so moved by this story that Round Table Group made a donation to NACDL in your honor. Many of our listeners are themselves, litigators, or business executives. What advice would you have for our listeners who are similarly moved by the harsh realities of the trial penalty concept and who might want to get involved with commutation or prisoner’s rights work?

Matthew Morr: I think the best place to go is the NACDL I should also say thank you for the donation. I know the organization greatly appreciates it and we appreciated you doing so and on our behalf. It was a very nice thing for you to do.

Mudasar Khan: I would echo what Matt mentioned about getting in contact with the NACDL. They are currently looking for individuals to work on these petitions and will accept any help they can get. They do not have to be litigators. We have real estate attorneys who worked on these petitions as well. I think it is a good way, particularly for litigators to branch out and get to work on different matters than the general run-of-the-mill commercial litigation matter.

Russ Rosenzweig: So, one last question. When you are not busy freeing inappropriate life sentence prisoners and engaging in elite commercial litigation work, what do you like to do outside of work? Mo, you first and then Matt.

Mudasar Khan: Like Matt, I have two dogs, so being in Colorado we go on a lot of hikes. Recently I have been taking skiing lessons and I am getting better.

Russ Rosenzweig: Matt, are you still on the slopes regularly, or did that accident kind of change your favorite sport?

Matthew Morr: No, I am still on the slopes quite a bit, and since I turned 40, I compete every year in the master’s division of the Taos Pre Ride Ski Championships, which is an extreme skiing contest at Taos that I do every year. My wife would probably like me to stop. Days before the world changed from the pandemic, on March 6th of 2020 I broke my leg in the competition, but I am all healed and had a great ski season.

Russ Rosenzweig: Awesome! That makes three of us who are passionate about skiing, not so much the extreme part for me, but all the rest of it. Taos and Vail are two of my very favorite places in the whole world. Thank you for being on the show. I am grateful. Thanks for all you do.

Matthew Morr: Thank you for having us and again thanks for all the work that your company does for Ballard Spahr.

Russ Rosenzweig: It is an honor. Thank you both.

Mudasar Khan: Thanks, Russ.

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Go behind the scenes with influential attorneys as we go deep on various topics related to effectively using expert witnesses.

Taking a Look at Trial Penalty, Expert Persuasiveness & Credibility

Matthew Morr and Mudasar Kahn, Ballard Spahr

Matt Morr is a trial attorney at Ballard Spahr, representing a wide range of companies in their most important litigation matters, from prominent public organizations to start-ups in emerging industries. Matt has litigated and tried cases in front of judges and juries in federal and state court, and before arbitration panels.

Mudasar "Mo" Khan is a member of Ballard Spahr's Litigation Department. His practice focuses on complex corporate and commercial litigation in both state and federal courts. Mudasar’s experience includes managing electronic discovery, drafting discovery requests and responses, arguing at hearings to resolve discovery disputes, taking depositions, preparing fact and expert witnesses to give testimony, negotiating settlements, and briefing dispositive motions.

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