The Litigation Psychology Podcast - Episode 27

De Smith - Executive Director of the NFL Players Association

CSI - Courtroom Sciences Inc

A very special guest joins The Litigation Psychology Podcast - DeMaurice Smith, Executive Director of the National Football League Players Association (NFLPA). De Smith discusses how NFL players are coping with COVID-19, his extensive experience as a trial attorney including the art of storytelling in front of a jury and the importance of witness testimony at trial. De also describes the challenges of running a major professional sports players association, the role of sports in helping to address and solve societal issues in the country, his thoughts on a minor league for professional football, and much more. An entertaining and enlightening discussion!


 
 


Podcast summary:


Dr. Bill Kanasky

Welcome to the Litigation Psychology Podcast for another episode, Dr. Bill Kanasky from Courtroom Sciences. Absolutely thrilled to have a very old friend in the house - De Smith, Executive Director of the NFL Players Association. De, how are you doing?

De Smith 

I am awesome. Good to see you, buddy. And yeah, so good to connect with old friends.

Dr. Bill Kanasky

Yeah. I tell you what we were just talking before we went on live here and we're talking about the lack of sports in our society and I think it's making a lot of people crazy. Have you been coping without sports?

De Smith 

I don't think I've been without sports. I mean, you know, got our collective bargaining agreement done in, let's say the first week or so of March, and that was voted on, on a Saturday and rolled into a global pandemic on Monday. So you know, business hasn't stopped and, if anything, we're probably all running at about 110 - 115% right now.

Dr. Bill Kanasky

Wow. So, how are the players dealing with COVID-19? Not being able to work out in groups is what it's sounding like and a lot of individual workouts; how are they coping with that?

De Smith 

You know, our players are resilient. I think one of the reasons why they are so successful at this level is they just simply adapt. And they're just mentally stronger, as well as, somewhat physically different than everybody else. But what gives them the edge is really the mental discipline that they have. And we pivoted to virtual OTAs and that went on really without a hitch. Football has evolved over a number of decades and this is yet another instance where it will just evolve, and our guys will figure it out. Coaches will complain and gripe, but they'll figure it out. And the goal will be, how do we bend the NFL to the virus, as opposed to trying to bend the virus to the NFL.

Dr. Bill Kanasky

That's a good point, De. You and I go way back to your days as a trial attorney, and I tell you what, we had a lot of fun and in my first two years of jury consulting, you and I worked on several trials and focus groups together. And I really, really learned a lot from you. So, I have some questions about that, but I want to go to a key question here because the world is crazy right now. You've got a combination of pandemic and a lot of social unrest. Can football save this country both mentally and socially?

De Smith 

No. No. No. I don't want to be too Pollyanna-ish about sports; sport has an important place in America, sports philosophically; the earliest book on the philosophy of sport was written by a man named Joseph Huizenga and the thesis of his, that early book was that what really defines sport in its essence, isn't so much sport as it's play. And so I work in the National Football League and working in the business of trade unionism. But when we think about sports, the real beauty of sport is how you and I and our kids and our family how it relates to how we interact with each other, both engaging in and watching play. And at the end of the play whether you are watching dogs wrestle in the backyard or whether you're watching what I unfortunately still do, and then get hurt, you know, messing around with my son and it's fun and games until he picks me up and puts me somewhere.

De Smith 

The real beauty of sport is how it creates social connections. So that's a long way of saying football. You know, the NFL is not going to save anything. What will save us is all of us learning how to live and get along and have a view towards what it's like to walk in another person's shoes. And that's really social engagement. So, you know, what we do in the NFL is such a small, tiny part of play. What we need is a larger and more inclusive, morally, ethically and spiritually of how we're gonna interact with each other.

Dr. Bill Kanasky

Yeah. I agree. You know, the one thing I miss, when you start looking back on things, when you're locked up for three months in your house and you can't socially engage, going to football games or college basketball games, it's amazing. It's like if everybody's wearing that same color around you, you're wearing the same jersey and the touchdown gets scored, I don't care what your sex is, your race is, everybody's hugging and high fiving. And I hope we can get back to that and have some fun.

De Smith

Yeah, and that, look that is very important. I guess the one piece I worry about a little bit and I mean part of what I believed in being a good trial lawyer was having a firm depth in sort of history and literature. And the one part that I do worry about, and I do think that that frankly, the country is better off right now, not having a lot of sport is sport as entertainment, sport, as an escape, sport as I can focus on this and not focus on that. That's where like Neil Postman would say that that's the risk where of entertaining ourselves to death. And so one of the reasons I do think that the country has started to look inward, is there really isn't an escape there's nowhere else to look.

De Smith 

And you have to embrace what's going on. And so, I think it's weird. I mean, every now and then it just seems in our social order that something comes along, and it comes a little bit closer to kind of righting the ship, you know? And so, if we can bring back sports as a function of that social engagement but prevent it from being an escape so we could ignore everything else. That's closer to the right now.

Dr. Bill Kanasky

Absolutely; a great point. Now, speaking of being a trial attorney; this is my 16th year of jury consulting. And I was kind of a baby when I was on those cases with you, but I gotta tell ya something, I want to address one of the best skills I saw you pull off where I was literally jaw-dropping and you may be the best I've ever seen - your ability to get in front of a jury. And your storytelling skills were absolutely amazing. And 15, 16 years later, I'm working with a different generation of attorneys. And I gotta tell ya, they admittedly struggle with it. Talk about the importance of the ability to tell a story to a jury, where you got those skills from. And, if you're not able to do that, how it really hurts your case in front of a jury.

De Smith 

Yeah. Well, when you start this way, I mean, you may have been young, but let's just say you were a brilliant baby. I haven't worked with anyone in the field better than you and the team there. I'll say this and then answer your question. I think it is extremely important to be a part of a team. And when people sort of see the world the same way, see the problem the same way, everybody can work in the same way towards a solution. And that makes those partnerships really easy. And I had a fantastic time. It wasn't not stressful, but it was fantastic. The storytelling part, that's the way I was not only trained as a lawyer in law school but I come from a family that’s just a group of storytellers and I come from a long line of Baptist preachers and it's all about telling stories.

De Smith 

And it's one thing to sort of you know, watch a struggling pastor stand up and read a sermon. It's another thing to watch someone tell a story to a congregation without any notes and choosing engagement over whatever you've decided to write down on a sheet of paper and from your background that ability to connect, to establish a trust and network between the deliverer and the person who's receiving the information is far more important psychologically than the tidbit of information that you're actually giving. And then the other thing too is, I really started to research and learn storytelling when I became a prosecutor. I'll forget the name of the book; its somewhere in here, about the art of storytelling and the opening of the book is a fable about truth walking into a campfire with people around it, and no one accepted truth, because it was raw, it was brutal and it was ugly.

De Smith 

So truth leaves the campfire and comes back clothed in story. And when truth walks back into the campfire clothed in story, everybody around the campfire welcomes truth, because it's clothed in something that they can relate to. And I think that's in essence, if I had to boil down the job of a trial lawyer, how do you clothe what happens to be your truth? Small T truth sometimes; in story, and if you can't tell a story, and you and I’ve both watched; we had bad co-counsel.

Dr. Bill Kanasky

Bad, bad, bad.

De Smith 

Bad.

Dr. Bill Kanasky

I remember being in the room going like, ‘Oh, no, this is what is, what is he doing?’

De Smith 

It was a good time.

Dr. Bill Kanasky

So we got consulted on a case earlier this year before COVID and I had a client, a newer client, call me and say, Oh my God, the case didn’t settle. We're actually going to trial. There's pure panic when you need to come down and help pick the jury. Okay. I buy my flight. I get down there. I picked a pretty good jury and De, I kid you not, I said, I'm going to stay in the afternoon for opening statements. The defense counsel got up; this is a couple of months ago. Gets up with an iPad and reads, never made eye contact, just read the entire opening from an iPad. I was like, I can't believe I'm seeing this. And obviously there's nothing I can do. I can't take a 20 second and go, ‘Hey, TO baby, you need to stop doing that’. Can you talk about the importance of your movement in the courtroom and your eye contact with people and how if you read it even off note cards, would be just destructive to your case?

De Smith 

My mother is the toughest one in our family, and she would say at that point, someone needed to walk up and deliver a good country slap. I was always a fan of notes; I was trained as a lawyer, a young budding lawyer in law school and when a trial lawyer stands up in a courtroom he or she has to take on that they are a leading actor, the stage director, the show runner and the most important person in the courtroom. And I know that during my career that pissed off a lot of judges, but I always looked at it this way. I mean, again, I'm just taking things that people taught me, the judge is chained to the bench, the witnesses chained to the witness chair.

De Smith 

The jury is stuck in a box; the only person in that room who has the ability for improvisation, is the trial lawyer. And if you don't take advantage of that the worst thing, you're doing is ceding the advantage to somebody else. And, as good as a jury as you picked, if somebody on the other side is better at that stagecraft, they will take the great jury that you picked, and they will sledgehammer that jury over a bad trial lawyer.

Dr. Bill Kanasky

And that's exactly what happened in the case I was just referring to

De Smith

It's kind of that world.  I mean you get into certain federal courtrooms and some judges engage in that kind of shotgun jury selection where you really have a limited ability to even exercise strikes. And I had the luxury of really learning how to try cases in DC Superior Court.

De Smith 

And it's a free for all. And so you learn how to take advantage of that lack of structure. And then if you're stuck in a world where you have a tremendous amount of structure, you learn how to take advantage of just the little micro pieces of non-structured engagement that you have, and just take advantage of it. Because, I have been waxed by really good trial lawyers who had really bad facts, especially when I was a criminal lawyer. I'll never forget there were probably 10 or so criminal justice act lawyers or public defenders who really didn't have a lot to work with when I was prosecuting a case. And there were a handful of them that would keep me awake at night.

De Smith 

Over their ability to try a multi defendant conspiracy case with literally a half a page of a legal pad. Oh my God. Once you see it happen you realize I'm just along for the ride; I know how this is going to end, you know? And so that is a feeling, you really learn sometimes that it's like the Mike Tyson line, you know, everybody has a plan until you get hit in the face. And so learning how to pivot, learning how to take advantage of what you're feeling from a jury. You taught me a lot about how to pick out certain people in a jury box, how to read body language from a witness, but so much of that stuff is and I think,  sometimes, how do I say this nicely, people who have been in law firms for a very long time, but may not know how to try cases.

De Smith 

They're very good at all the facts. They're very good at all the wonderful multicolored outlines and tabs. I mean, you saw me, it was basically a note pad, maybe a couple of cards, if that, and so you're trying to manage; I know you’ve studied Herb Stern and that's the way I was taught; trying cases to win when you're in a courtroom. And you're really trying to leverage the judge, the witness, your opposing counsel, your witness, yourself, all towards what's the best package for the jury. And, if you can't do that you might be a litigator, but you're not a trial lawyer.

Dr. Bill Kanasky

Exactly. And now I don't want to bring up any PTSD nightmares here, but because my true love, my true love, is actually not the jury psychology part. It's the witness preparation part. Because that's the key driver of jury decision making. Can you talk about, regardless of giving the best opening statement ever given on this planet, talk about how an unprepared witness can absolutely torpedo your case? I don’t know if that’s ever happened to you.

De Smith 

Well, yeah. And, it has because again, it goes to managing the stagecraft, right. And for younger lawyers, imagine you've gone to see Hamilton, it's the best stage you've ever seen. You've got the best director, you've got the best actors, the audience is there. The music is fantastic. And the guy walks in for the first opening line and he forgets his words.

Dr. Bill Kanasky

Yeah. Yeah. Okay. Game over.

De Smith 

The play is ruined. So, to me, that's the danger. I mean, I was trained, maybe this is horrible, but I was trained that witnesses are bad, nothing but trouble. So, you know, what I would say is, what I always tried to do with our witnesses, both as a prosecutor, criminal defense lawyer and when we were trying cases together was really take the minimalist view that deliver a well-prepared witness and delivering that in a minimal way where it touches the things or the elements that you have to do. But you don't take on any harm.

De Smith 

I would choose a witness who delivers 15 minutes of crisp, nearly flawless testimony, rather than a witness who delivers a solid hour. And the reason why I think it has such a negative impact is I think two things happen. And I think sometimes lawyers only think of the one bad thing. The first bad thing that happens is your witness doesn't do well on the stand and doesn't perform well. Everybody understands that. I mean, a five-year-old gets that. I think the difference between what I learned from really good trial lawyers was two things actually happen. One, your witness doesn't get something right. Second, and perhaps even more important, the jury now takes that flaw or misstep or error, and they actually layer it on to the person who presented the witness.

De Smith 

And so it breaks that trust dynamic, and they no longer trust you as a truth teller. And now that's something that carries on. Not only after that witness, it carries on to the next witness, it carries on to everything you do. And now you carry that baggage, the poison, it's the gift that keeps on giving. So, for me, I have always believed that, and again, it feeds into my ego, that trial lawyers are the people who deliver wins. And if you know, like you said, you pick a great jury and you always pick a great jury, if they don't believe me at the end, it’s not gonna matter.

Dr. Bill Kanasky

Yeah. You're right. You're absolutely right. Okay. Let's get back to sports. Okay. NFL, MLB, NBA, which players association director has the biggest headaches.

De Smith 

Wow, little curve ball there. I think we all have different challenges. Tony Clark is brilliant. He's probably the Players Association chief that I'm the closest to; he's like a brother. Tony was a tremendous athlete, multi-sport guy, played a long time in the MLB. He has a challenge that I don't have; somewhere between 40 and 60% of any given team that he visits is from another country. That's challenging. It's huge. He's got to conduct his team meetings half in Spanish. So yeah, my challenge tends to be that we have the shortest players careers. Michelle Roberts in the NBA; she probably has the youngest - along with Tony - probably the youngest players because they come right out, a year out of college. So, you know, I like my gig. Most of our guys are four-year guys. They're older. I do think that brings a different level of maturity into it. But I also have 2000 special cats.

Dr. Bill Kanasky

Yeah. I'm sure. And you brought up something interesting about the maturity of the players and we've seen the AFL and now the XFL again fail for a number of different reasons; the NFL really is the only sport without a farm system. Or I guess college is the natural farm system; should it stay that way, or should there be a farm system and why is that?

De Smith 

No. I wouldn't mind competitors to the NFL. But I have been a hardliner when it comes to quote/unquote farm systems, because it creates a group of professional athletes who are second class citizens. And so you look at minor league baseball where you've got probably quadruple the number of them in the minor leagues that are playing in the majors. They play without a collective bargaining agreement. They play without minimum salaries; they play without benefits. And that's a system that I think breeds inequity. And I also think it's not good for the individual players because, take basketball's G league or whatever they call it. You know, everybody can name the first three guys, four guys on an NBA roster, after you get to guy five, six, seven, eight, nine, 10, it's whomever.

De Smith 

And so, and the tough thing for those group of guys is every year, a large group, those guys go back into this G league pool and they have to play all year against another 2000 people with a hope of once again, being guys six, seven, eight, nine, 10, 11, 12. And I think that that creates an inequity. And so, as long as I'm here, we're never going to have a minor league football with the NFL, because I think it would simply mean that a larger group of our guys would have the lack of job security.

Dr. Bill Kanasky

That's a very good point. Now with COVID kind of taking over the headlines, I know the issue of CTE has been a very important issue to you and I've read countless articles essentially titled ‘are we going to have football in 15, 20 years?’ And a lot of those articles reference the fact that insurance coverage is becoming more and more difficult. So I guess the first question is, do you think the league is handling the CTE issue in the right way, and then secondarily, how does the insurance industry really handle this and is that going to be a barrier going forward?

De Smith 

Yeah, I think the biggest risk to global football, from youth all the way up, the biggest risk is clearly whether little leagues, high schools, local jurisdictions can get insurance coverage. I mean, that’s the threat really. And we can go back and forth on whether it's a real threat or just as simply an insurance company decides who they want to insure. And, once you pool the risk, you have a relatively small risk of massive payouts. But it's a business that is in the business of not paying out claims.

Dr. Bill Kanasky

And my bills, by the way. My invoices.

De Smith 

So, you know, that's the real threat to football up to college and the pros. That's not really a huge threat with major college programs and the pros. Do I think the league is handling it the right way? I would say this, I think they've handled it better since 2009 when the union really became aggressive about preventing unnecessary head trauma. So, look the problem with anything like CTE - and it's one of the things that keeps me awake at night dealing with COVID - while we know a lot more about head injuries and long-term consequences of head injuries, we still know far less than there is to know. And so, even now when we are grinding through, if, and when, and to what extent football returns, one of these interesting questions out there is we're dealing with a novel and emerging virus, and we don't know whether there could be long-term lung cancer consequences, long-term heart consequences.

De Smith 

And so, it's sort of, I think sometimes it's a blessing and a curse to come into this job, being a long-time liability lawyer. Sometimes I dream that I knew less about stuff. But I don't and so, I know everybody wants football to come back, but right now there's just a whole lot of things that we're trying to work through. And we're trying to force the league to bear the responsibility that an employer would normally have. And try to prepare the best we can for the unknown.

Dr. Bill Kanasky

Excellent points De. We're just kind of wrapping up here. The challenges that you faced as a young black attorney times are actually different, very, very different now from when you started. And I have had the pleasure of working with some young thriving black attorneys. What advice would you give them as far as career advice in 2020? And I will say this because there's an interaction effect - and this has nothing to do with skin color – 40- and 50-something partners despise millennial associates. They want leave at 5 till 1:00, to come in at 9:30. They like the redheaded stepchildren of every law firm right now. And I hear complaints on a weekly basis. What advice would you give young black attorneys to get to that partnership level, to really thrive in the field of law?

De Smith 

Yeah. I think two things. One, I loved being a partner at both Latham and Watkins and Patton Botts; I really loved it. I mean, my advice would be, and I'm going to frame this the right way. If you want to be a partner at a major law firm, and I would start there because you and I both know, I think every now and then people sort of have this pie in the sky vision of what it likes to be a partner at a major law firm. And let's just say that the days of playing four rounds of golf a week and, you know, probably not. So I would say if you want to be a partner at a major law firm my advice to, especially, lawyers of color is find that area of law that you love and perfect your craft.

De Smith 

Because, like a skilled surgeon, like a skilled diamond, cutter you're going to face a whole lot of challenges. But if you have not perfected your craft, it doesn't matter if you've managed everything else. The second thing I would say is be aggressive. I mean, we had a wonderful time working together; you and I understood and saw a lot of things going on in the background about how lawyers are selected for trial teams and the politics of what goes on in these trials and still go on now. Control the things that you can control, try to play the dozens on the things that you can't control. I learned a lot even after coming out of the U.S. Attorney's Office, I learned a lot after having tried, you know, nearly 200 jury trials.

Dr. Bill Kanasky

That’s amazing. You don’t see that today, by the way.

De Smith 

Yeah, and we can talk about that for another two hours. I think that trial lawyers; just trials are things that we just don't see much anymore. But the advice to younger lawyers is that you are always going to have to face things outside of the courtroom. Perfect your skill. And when it comes to handling those things that happen outside of the courtroom, yes, you're going to have to manage them with a level of grace and a level of skill and sometimes a level of politics. But that said I just never felt that there was any other course than to just be aggressive and to have confidence in my own skill. And that doesn't mean you're going to win every internal fight, but, I'd much rather go out having given it that shot and losing rather than second guessing myself later on and saying, Hey, maybe I should have been a little more aggressive. But yeah, the only thing I miss in this current job is, I would do just about anything to try a case.

Dr. Bill Kanasky

Man, I can tell. You’ve got the itch.

De Smith 

I miss it. It's just also the psychological part of, you know, something starts and something ends and you either win or you lose. And it's terrible if you lose, but I do miss the sort of the weight of a controlled outcome. You know what I mean? And I'm just miss working with you. It was just fun. Just fun.

Dr. Bill Kanasky

I got two more minutes. So I told some family and some friends, some colleagues like, ‘Hey, I'm podcasting with De Smith this week. You have any questions for De Smith?’ Now I will give the caveat, this is just like a lightning round of five or six. If you say no comment, I have no problem with that.

De Smith 

That's like one thing I just abhor. I answer every question. People may not like the answer, but I answer every question.

Dr. Bill Kanasky

Again, these aren’t my questions. Okay. Number one, will the Patriots continue to cheat despite not having Tom Brady anymore?

De Smith 

[laughs] The Patriots are the Patriots.

Dr. Bill Kanasky

Okay, good answer. You versus Roger Goodell in a UFC fight, who wins?

De Smith 

I'm always going to be the first guy to cheat. So I win.

Dr. Bill Kanasky

Perfect. Did the Bears screw over Walter Payton in the 1985 Super Bowl by not letting him score a touchdown?

De Smith

Yes. Yes. I just think that there's certain things you have to do. It's like, come on, man. That was just wrong.

Dr. Bill Kanasky

Okay. End zone celebrations after touchdowns. Good or bad?

De Smith 

Great. Love ‘em.

Dr. Bill Kanasky

Keep it coming. I think the fans love them. Okay. Two more questions. Most terrifying defensive player ever. Dick Butkus or Lawrence Taylor. If you're an offensive player, who would you fear? That's a tough one, but you can go Tarheels on this one De even though you went to UVA.

De Smith 

I'm going to choose neither. I'm going to choose Adam Jones.

Dr. Bill Kanasky

Okay. Cause I just watched that. Yeah.

De Smith 

I've never met a guy who, you know, for all intents and purposes is almost the same size as me. But played for about a hundred years and did everything from running back kicks to covering six-foot six wide receivers. And, when you talk to people in the league, you always heard of guys who were like, okay, that's the one guy I don't want any part of. You don't mess with them.

Dr. Bill Kanasky

Okay. Last question for you. What's the more thrilling activity watching paint dry or watching Virginia basketball offense?

De Smith 

[laughs] I'm going to go with, you know me, as long as there's the W right after the end of Virginia, I'm good, but what's weird now is my family, like my wife and I met at UVA, we got married at UVA, and now we root for Maryland because our son plays lacrosse for the TERPs. So we're pure TERPs.

Dr. Bill Kanasky

Well, thank you so much for being on the podcast. Please keep in touch and the best to you and stay safe out there. And we'd love to have you back sometime in the future.

De Smith

Anytime you call, I'll do this. This is the most fun I've had in a long time. So thank you, buddy. Talk to you soon.