Flaawsome Talk with Kjersti Flaa - Attorneys REACT !! Blake has lost it !!

00:00:00.000 To file a slap, a slap response, win it, and then say, now I want $8 million.

00:00:04.840 It's literally the definition of legal insanity.

00:00:10.060 I know judges who would slash that from $8 million to $80,000.

00:00:20.260 I was thinking, like, how am I going to introduce, like, two legends like you guys?

00:00:26.160 And I'm going to try my best.

00:00:28.080 You've been called Dumb and Dumber and Frick and Frack, so you can start with either one. 0.98

00:00:32.780 Far, far worse, no doubt. 0.99

00:00:34.480 Far, far worse is right.

00:00:36.300 Okay, I was just telling Matt that I was watching a lot of interviews with him.

00:00:40.640 So I would say that you're kind of the king of true crime.

00:00:43.620 Can we say that?

00:00:44.480 You've been prosecuting a lot of serial killers, and you wrote a book about it.

00:00:50.120 It was called The Book of Murder, and you also were working with Anna Kendrick on her

00:00:57.600 movie about a serial killer woman of the hour yes and mark you have defended so everybody yeah

00:01:08.660 everybody in hollywood i feel a lot of controversial figures and a lot of big celebrities like michael

00:01:14.800 jackson and the list goes on and on chris brown the menendez brothers mark's become even more

00:01:22.760 He's more famous than most of his clients, actually.

00:01:26.400 I think it's the sport coat that puts him over the top.

00:01:30.100 I love having you guys here, by the way.

00:01:32.320 It's such an honor that you come to my show.

00:01:35.140 And, of course, we have to talk a little bit about Blake Lively because that's been a main focus of mine.

00:01:40.100 As you know, I was on your show, the True Crime Podcast, not too long ago, In the Well.

00:01:47.040 And we spoke about how I was going to be a witness.

00:01:50.460 But now I want to ask you, because now, as you know, she filed her claim for attorney's fees last night.

00:01:57.520 Have you had the chance to look at that?

00:01:59.340 And what are your thoughts?

00:02:00.420 I looked at it.

00:02:02.220 It's quite astonishing.

00:02:04.840 I don't understand anything.

00:02:07.420 Maybe it's above my pay grade.

00:02:10.100 I'll give—I don't want to second-guess other lawyers, although I make a living out of doing that.

00:02:16.140 But I don't think they're reading the room.

00:02:21.920 How is that?

00:02:22.620 I'll put it at that.

00:02:24.340 They've got an audience of one, and I don't think they're reading that audience very well.

00:02:29.180 Yeah, I think that judge is over it, right?

00:02:31.720 I think better than any of us, he's got a very good sense of what this whole thing is about.

00:02:37.120 He's obviously seen things that we haven't even seen.

00:02:40.240 And I got a feeling that that goes poorly, but I haven't read it.

00:02:44.640 Well, so she's asking for $8 million, just to put the number on there.

00:02:51.580 Look, I know that I don't, by the way, as we have an office in New York and we have lawyers licensed in New York.

00:02:59.900 And I understand that New York prices are higher than anywhere else in the country, but even under the inflated or the tilted New York standards, the idea of $8 million on a anti—basically an anti-slap is so over-the-top ridiculous.

00:03:24.100 I know judges who would slash that from $8 million to $80,000 and would not even look twice, and there's no appeal.

00:03:35.380 And mind you, this is a judge.

00:03:38.540 I've said this before.

00:03:40.080 I don't know him.

00:03:41.960 I knew his father.

00:03:43.580 And his father was a legendary, legendary legal luminary who understood the First Amendment.

00:03:52.480 And the apple does not fall far from the tree.

00:03:55.820 This judge has both on the record and in his written rulings has said things about the First Amendment and has mused about the constitutionality of what Blake Lively's people are trying to do here.

00:04:12.220 I just think he's going to slash this request like nobody's ever seen.

00:04:18.620 Really? So what do you think?

00:04:20.180 Yeah, you think, Matt, as well?

00:04:22.200 Well, you know, there's almost two schools of thought in the practice of law that you see over and over again.

00:04:29.720 There's the lawyers that come in and will represent to a judge or a jury or the other attorney exactly what they think the case is actually worth.

00:04:37.580 You come in and you give an assessment.

00:04:40.400 You might have a little bit of wiggle room with some persuasion, and you come off as honest.

00:04:46.700 And then you've got others, and again, I'm with Mark on this.

00:04:49.420 I don't want to criticize lawyers.

00:04:50.980 I don't know.

00:04:51.460 However, $8 million is insane, and you have the second category of lawyers who will come in and make some broad claim.

00:04:59.840 It's like the prosecutor's mark.

00:05:01.320 They come in, and I know a case that's worth 60 days in misdemeanor land.

00:05:05.540 They'll come in and say, I want $180 because they're hoping maybe the judge will give them $60 or $90.

00:05:10.400 It's never the way I practice law.

00:05:12.440 It's definitely not the way Mark practices law.

00:05:15.140 I don't know.

00:05:16.820 It's just kind of cringy and makes me uncomfortable.

00:05:19.080 And $8 million, I agree with Mark.

00:05:22.060 That's insane.

00:05:23.540 Can you imagine, Mark, getting paid to file a slap response, win it, and then say, now I want $8 million?

00:05:29.980 It's literally the definition of legal insanity to ask for $8 million.

00:05:37.720 dollars. And to Matt's point, one of the reasons Matt and I used to bond when he was a prosecutor

00:05:44.720 and one of the kind of the little hidden kind of gems that I try to teach new lawyers, 0.99

00:05:51.500 if you go in there and you are patently ridiculous, you have no credibility. And 0.99

00:05:57.600 it's a very small community when you get down to it, the legal community, in a lot of ways.

00:06:03.800 I always say New York especially is very parochial in some ways in terms of it's a small community.

00:06:09.860 Everybody knows each other.

00:06:11.700 L.A. is the same way.

00:06:13.240 It's everybody who's doing or in the same kind of fishbowl knows each other.

00:06:18.520 And if you come in and you're asking for some ridiculous amount off the top, it basically, if Matt had done that as a prosecutor, we never would have become friends.

00:06:29.740 And I think it works vice versa.

00:06:31.940 He knew when I came in, I would make the argument.

00:06:34.860 I would tell him what I thought.

00:06:36.360 I wasn't trying to, I mean, I would posture to the extent that I'm giving my client's version, which he might be diametrically opposed to.

00:06:45.500 But I'm also trying to put myself in Matt's shoes.

00:06:49.900 He's not going to give away the store.

00:06:51.960 He's not going to do something he's not comfortable with.

00:06:54.760 But I'm going to try to explain to him why he should do something.

00:06:58.000 When you go to a judge who has, understand this framework, this judge has been given this plate of whatever, excrement, and told, we have no right to appeal.

00:07:12.920 Okay?

00:07:13.440 So that means he can do whatever he wants.

00:07:16.460 I mean, it's an unfettered trial court unicorn, because usually a trial judge always has to worry about what's going to happen from the appellate court.

00:07:28.600 Here, he doesn't have to worry.

00:07:30.380 Judge Lyman can do what he wants to do.

00:07:33.180 I wish there was a prediction market where I could bet the over and under on this amount, because I would bet.

00:07:41.900 Maybe there will be.

00:07:42.520 Yeah. I mean, if there is, Matt and I are going to be betting. We're going to take all of our in-the-well winnings and betting on the under.

00:07:51.060 Yeah. Look, I think you just nailed it, Mark. This is in the real world of real legal fees to file an anti-slap. It's about 80 grand. And that's about what that would be a reasonable response in my view on this.

00:08:04.060 And again, like you said, New York prices, but that's an $80,000 tab and anything over that.

00:08:11.820 And, you know, they can kind of declare victory.

00:08:13.640 But Mark's absolutely right.

00:08:15.440 You lose all credibility when you go in and do that. 0.98

00:08:18.820 And you just, it's silly. 0.72

00:08:20.740 They're not getting that.

00:08:22.220 They shouldn't get anything even close to that.

00:08:25.060 And I think this judge is over it.

00:08:27.000 But do you think that maybe Blake and Ryan pushed them to get the amount up as much as possible because this would be like a good like PR look for them?

00:08:36.780 I mean, I just saw the headlines everywhere like Blake asking for $8 million.

00:08:40.360 It sounds like he's done something wrong because she's asking for that amount of money.

00:08:45.400 That's exactly what it is.

00:08:47.100 Yeah.

00:08:47.260 They're, they're, they're so desperate for a win on this thing because they, they, they just, they lost almost everything throughout the whole case and, and they lost the public relations battle, I think, big time on this. And yeah, they're, they're desperately trying to get some W out of this whole thing. And, um, you know, they'll declare, they'll declare victory no matter what, but you know, Mark's, Mark's buddy, Brian defended Baldoni in this.

00:09:14.440 And I think he did a really fantastic job.

00:09:17.940 So they're technically entitled to attorney's fees and rolling in.

00:09:20.940 And, yeah, they would love to bankrupt this guy or his production company or whatever.

00:09:24.400 And it's just it's not going to happen with this judge.

00:09:26.540 This judge is not it's just not going to happen.

00:09:29.040 Like I said, you want to let's I'm going to take your suggestion and hope that they do post this on the prediction markets today.

00:09:35.960 Matt, I'll I'll take your proxy.

00:09:38.080 Whatever you want to bet, I'll front for you.

00:09:40.040 That's a deal. 0.91

00:09:40.580 But then when that happens, if he gives them, let's say he gives them $80,000, those headlines are going to be everywhere, too, which is going to be a much bigger loss for her because then it looks like she was really unreasonable.

00:09:52.040 Don't you think that's going to harm her even more?

00:09:54.920 Take a—if you—if he just did—gave an amount, which would probably be the largest amount in anti-slap California history—mind you, remember, this may be a New York litigation, but it's based on a California statute.

00:10:12.700 I would be hard-pressed, I could be wrong, but I have not seen any anti-slap fees award that has exceeded $500,000.

00:10:25.500 I haven't seen it.

00:10:26.820 In fact, as I sit here, I think the largest anti-slap fee award I have seen, which the winner of it, Abandoned on Appeal, was about $240,000.

00:10:38.940 And the judge, when awarding that amount, said specifically it was an existential threat involving the media company, but the media company walked away from it because basically they knew it was never going to last on appeal.

00:10:56.100 I've seen $80,000 bills slashed to $20,000.

00:11:01.860 The idea that there is a seven-figure—I wish I had somebody who does anti-slap for a living, and I know several lawyers who do.

00:11:12.300 And I should probably, for you, do a consensus of them.

00:11:17.000 I'll take a quick study.

00:11:18.200 I don't think any of them would say that they've ever seen $800,000 on an anti-slap as an award from a judge.

00:11:26.660 $800,000.

00:11:27.600 Now, they're going to do 10 times that much in a case that got gutted?

00:11:32.280 Yeah.

00:11:33.700 Yeah.

00:11:34.620 Yeah.

00:11:35.100 It'll be under a million bucks, whatever it is, guaranteed.

00:11:38.440 And it should be, like Mark's number, it should be $80,000 in my opinion.

00:11:42.400 $80,000 is the right number.

00:11:43.980 That's all it's worth.

00:11:45.000 And that's as if, you know, it reminds me, I defended Jesse Smollett, or the office did, the first time when his case got dismissed.

00:11:56.780 And then the second time he was prosecuted, and it ended in a conviction, but then the Illinois Supreme Court reversed that.

00:12:06.160 So he was never convicted of anything.

00:12:08.480 There was a law firm, and I think it was Dan Webb at Winston & Strong.

00:12:13.680 And I believe they said, we're doing this case pro bono.

00:12:18.020 They were the special prosecutor.

00:12:20.600 Matt, take a wild guess to prosecute Jesse Smollett.

00:12:26.780 What pro bono?

00:12:28.140 They didn't charge any attorney's fees.

00:12:30.300 Guess what their costs were in that case.

00:12:34.180 Oh, gosh, that's a tough one.

00:12:36.860 I mean, what it would actually cost?

00:12:39.480 Yeah, the cost that they charged.

00:12:40.700 Considering it was investigated by the police.

00:12:42.760 You got police reports, actual costs, 50 grand.

00:12:47.080 Yeah.

00:12:47.620 I believe they charged 900 plus, 900,000 plus in costs.

00:12:53.140 So I can only imagine the cost bill here.

00:12:56.620 I mean, you know, there was somebody who was prosecuted in New York recently, and I believe

00:13:04.180 J.P. Morgan had to pick up the financial institution, had to pick up the defense.

00:13:09.400 And when somebody did scroll down into the cost bill, it was incredible the things that they were billing for on costs.

00:13:18.420 I mean, it was, you know, it was not just pizza from Domino's for 50 bucks.

00:13:23.100 It was, I'm going to get lap dances or I'm going to do this or I'm going to do that.

00:13:28.480 Anything you can imagine.

00:13:29.460 They billed almost a million dollars to do a private prosecution market.

00:13:32.720 Yeah, right.

00:13:33.540 But that's cost.

00:13:35.300 That's no legal fees.

00:13:37.100 That's cost.

00:13:37.940 Can you imagine how many cases you can, what would be your cost to prosecute?

00:13:43.480 I mean, come on.

00:13:44.300 Oh, my God.

00:13:44.960 Well, and think about the amount of public value you get out of an experienced prosecutor then to do a big murder case, right?

00:13:52.520 Like something where you shut down your trial for months and months.

00:13:56.840 Yeah.

00:13:58.180 But, I mean, you guys have dealt with, you guys both dealt with so many big egos.

00:14:02.880 I mean, you dealt with serial killers face to face.

00:14:06.840 And, Mark, you've also had some clients with huge egos.

00:14:11.420 How would you compare some of the people that you represented or that you have prosecuted to Blake and Ryan?

00:14:19.600 What kind of people are they, would you say?

00:14:22.300 Would they, yeah.

00:14:26.300 Not that you have to compare them to serial killers.

00:14:28.960 I'm leaving the opening salvo to Matt.

00:14:31.600 Yes, Matt.

00:14:32.500 You want to answer that, Matt?

00:14:34.500 Well, I'll take a stab at it.

00:14:35.960 I mean, look, I think the most telling moment of that entire thing, honestly, was your interview with them from 2016.

00:14:42.220 Not them, but her and Parker Posey.

00:14:45.360 Because I had Vietnam-style flashbacks to the Mean Girls in eighth grade. 1.00

00:14:50.760 You know, in the eighth grade lunchroom, they were just awful.

00:14:54.480 So I think that when you're, you know, we hear the word privilege a lot these days or entitlement.

00:15:01.500 And I think that when, you know, and Mark's the expert on this, truly.

00:15:04.460 I grew up in L.A. I knew I, you know, friends with famous parents. But Mark has really he's represented some of the biggest egos in Hollywood and done so very well, as we've all as we've all seen.

00:15:17.040 But I just, you know, when you have unlimited resources and you are offended by something or you've got a score to settle, you know, I think I think that that's what a lot of this lawsuit was.

00:15:29.800 It was it was ego driven and somebody got their back up and somebody being Blake Lively.

00:15:36.600 And I think that, you know, I think that that settlement at the end, I've always suspected somebody finally got to her, whether that was her her husband, whether that was some publicist saying you're getting killed in the in the, you know, public media right now online.

00:15:51.960 You look terrible. This whole thing needs to go away. And I've always suspected she finally listened to someone.

00:15:59.800 Or she wanted to go to the Met Gala.

00:16:04.620 Yeah, right.

00:16:05.280 Yeah.

00:16:05.980 Right.

00:16:06.240 But I mean, Mark's a master at that.

00:16:09.160 We call it the come to Jesus conversation where you finally get your client to listen.

00:16:15.620 And I'm still kind of a rookie in the whole defense world in private practice, which you don't have clients as a prosecutor.

00:16:25.740 So, you know, I couldn't even pretend to know how to deal with what the lawyers involved in this case must have been dealing with.

00:16:34.540 It's so funny that you say that, Matt, because my dad used to, who was a prosecutor, not as long as you, but it's what seemed like for the first 13 years of my life.

00:16:44.900 And he used to always say they don't teach you the care and feeding of clients in law school.

00:16:49.920 And it's very true. 0.62

00:16:51.480 I have had what you would characterize

00:16:54.360 as a come-to-Jesus talk.

00:16:56.460 My talk is generally, I will sit with a client.

00:17:00.100 It's usually, it's not on a one-off.

00:17:02.220 It's a repeat client.

00:17:03.580 It's a client who just hasn't learned.

00:17:05.100 I mean, I've had the unfortunate experience now

00:17:07.940 of representing the third generation 1.00

00:17:10.560 of certain families criminally,

00:17:13.120 which is mind-boggling.

00:17:14.360 The grandfather, the father, and now the grandson.

00:17:17.440 And I have said, I have had the talk where I've said,

00:17:20.280 You know, I get it. And, you know, all the literature says that the peak kind of criminal years are males between the ages of 16 and 25.

00:17:33.380 My father also jokingly used to say, if you want to solve the crime problem, just incarcerate all males between 16 and 25, crime will evaporate the next day.

00:17:44.260 But I have explained that to clients in these terms.

00:17:48.520 You know, this is the third or fourth case I've had with you.

00:17:52.240 You've now put my, you know, I used to say my daughter or my son through private schools.

00:17:59.260 You paid for their college education.

00:18:02.040 You know, now it's like you're funding my grandkids' college education.

00:18:07.180 Enough already.

00:18:08.340 You know, save for you as opposed to saving for me.

00:18:11.620 Just stop it.

00:18:12.700 I'm not going to do this anymore.

00:18:15.360 And you have to, the interesting thing about Blake Lively, I take a much more cynical view as to what happened.

00:18:23.420 I, and I've articulated this with Matt, I think what really happened was when Judge Lyman gutted, if you look at the order, when he gutted Blake's case, he was savage with the lawyers.

00:18:39.260 That goes back to what Matt says in terms of he's over this case.

00:18:44.020 All you got to do is read that order.

00:18:46.000 That was a judicial bench slap of an order.

00:18:49.900 And the lawyers saw that. 0.99

00:18:51.520 And the lawyers are not stupid. 0.96

00:18:53.380 They've been milking that cow for God knows how many months at probably $3 million a month in legal fees, maybe $5 million a month in legal fees. 0.87

00:19:03.120 They knew at that point, we are going to get either a claim for clawback of our attorney's fees or a legal malpractice action.

00:19:12.800 And legal malpractice was for real because the order was savage.

00:19:17.300 So they ran over and got this immediately within hours into a private mediation.

00:19:24.760 And people say, well, why would you do that?

00:19:26.580 What would be the lawyer's benefit?

00:19:28.020 The benefit is if the case settles at a private mediation in California, given the broad nature of the mediation privilege, the lawyers can't be sued for malpractice.

00:19:41.880 So it was the lawyers saving their own skin that got this case settled.

00:19:47.420 In my humble opinion, I'm just connecting dots based on my experience.

00:19:53.960 So Brian Friedman, did he tell you that they came straight to him like very soon after the dismissal?

00:19:59.940 Do you know a little bit more?

00:20:01.380 I won't betray anything Brian said.

00:20:05.940 I will just tell you that it's been publicly reported that within hours or days of the issuance of Judge Lyman's decision that they were in front of the Uber mediator.

00:20:19.680 I call him that.

00:20:20.460 I won't reveal his name here.

00:20:21.780 But he's widely regarded as the guy who created mediation, a super mediator.

00:20:28.120 I remember back when he used to charge $25,000 a day.

00:20:31.540 Now you couldn't even get him to open his front door to his office for $25,000.

00:20:37.300 But they got into him immediately.

00:20:40.220 He resolved the case.

00:20:41.760 That's what gave the lawyers for Blake protection against getting sued for malpractice.

00:20:48.540 Wow.

00:20:50.220 So I've seen...

00:20:52.180 In my opinion, in my humble opinion.

00:20:54.440 So I've seen other people also, you know, speculate

00:20:59.440 because Michael Gottlieb kind of put it out there in some interviews.

00:21:03.660 He gave some statements that, you know, she could go and get damages

00:21:08.000 or punitive damages in California and take her claims there.

00:21:14.720 Or is that—is it—is that—could that happen at this point?

00:21:19.760 No, she's already—she's settled, number one.

00:21:23.460 There's a settlement agreement, number one.

00:21:26.020 Number two, the judge has already ruled on that issue.

00:21:31.000 She's agreed she would not appeal.

00:21:33.360 He has said no damages.

00:21:35.100 He has said no punitives.

00:21:36.920 Look, could she file it?

00:21:38.760 Yes, she can—anybody can file any case.

00:21:41.400 Would it prevail?

00:21:43.060 My humble opinion, never.

00:21:45.340 I agree.

00:21:47.020 Yeah.

00:21:47.300 At a certain point, God, don't you just have to let it go?

00:21:51.260 You know what I mean?

00:21:51.860 Right.

00:21:52.500 It's like, so when I went into private practice, I've told Mark this story before.

00:21:56.680 My old boss, his name is Lou Rosenblum, and he's a sage, right?

00:22:00.300 He's the guy that brought me into homicide.

00:22:01.740 He's a real thinker.

00:22:02.700 And when I was leaving, and he'd been in private practice for a while, and he said,

00:22:08.300 always remember and never forget the decision-making that these people engage in throughout their

00:22:13.400 lives that leads them to your office when they're sitting across from you, that way of thinking does

00:22:19.780 not end simply because you decide to represent them. And I think that's something that Mark

00:22:24.220 has probably seen about a thousand times where some people, they go through life in a contentious

00:22:31.080 way, whether they're kind of a vexatious litigant or whether that's criminality, but just that

00:22:37.640 decision-making that their little brands engage in doesn't stop simply because you get a good

00:22:42.200 lawyer who's giving you good advice um i don't know this she needs to move on and i think uh i

00:22:49.340 think i think the world is ready to move on i did hear though that did is it true that they're

00:22:53.260 separated now her and ron reynolds did i no no i don't think so but but they never yeah it's a

00:22:59.120 rumor but i don't think they're ever together because it looks like he's in the uk all the

00:23:02.680 time from his social media and whenever they're pretending that i mean they did that big pr stunt

00:23:08.960 in new york when they were walking together pretending they were on a date and there was

00:23:13.100 paparazzi there and she was piggy piggybacking piggybacking is it called that yeah anyway

00:23:18.720 back ride yeah on his back and it was just like so ridiculous the whole thing it was like okay

00:23:24.460 yeah we don't buy that but anyways i want to i saw an interview with you mark where you talked about

00:23:30.260 how uh this there was someone who's asked you how do you sleep at night when you represent

00:23:36.200 some of these people that are criminals, and you said, I don't sleep when I know that they're

00:23:43.940 innocents. Other than that, then I sleep. Can you explain a little bit? Because I want to try and

00:23:50.640 get into the mind of an attorney and why, you know, you're picking these cases that people

00:23:55.480 would be like, why would you defend people like this? So I've had either the fortune or good

00:24:02.760 fortune or misfortune of uh representing my in fact my daughter teddy who's probably eclipsed

00:24:09.660 both her father and her grandfather in terms of her legal acumen who's a lawyer she will

00:24:14.940 talk about the fact that when she was representing diddy last year that she grew up with her father

00:24:22.660 defending you know the current whoever the most hated man in america or the world was and it's

00:24:29.980 There is something to be said for going through that. I will tell you, I'll give you a perfect example. I was legal commenting, like I am now, 25 years ago about Scott Peterson's case.

00:24:45.020 And I made the comment at one point on CNN, back when people actually watched CNN, that there was more evidence against Scott when they found the bodies.

00:24:57.140 There was more evidence against him than a lot of people that are currently in state prison.

00:25:02.420 And they then, the family then, you know, was pushing back on it and called me and then eventually asked me to represent Scott.

00:25:11.400 And everybody uniformly told me, don't do it.

00:25:15.140 It's career suicide.

00:25:16.880 And in fact, after the verdict, CNN, speaking of CNN, actually did an online poll as to whether I had a career left 20-some-odd years ago.

00:25:27.820 It was two to—thank God for the public, two to one that I still had a career.

00:25:32.420 I have that in a snow globe.

00:25:34.460 One of the producers made a snow globe and gave it to me.

00:25:37.380 But the thing that made me take that case, there were two things.

00:25:40.940 Number one, when he was arrested and taken into the Stanislaus County Jail, it was surrounded by people wanting to lynch him, basically.

00:25:52.200 It was a modern-day kind of Jim Crow scene.

00:25:55.720 And I had gone to, as you might expect, my father, and said, you know, I'm torn because I really want to help this guy.

00:26:05.540 I believe.

00:26:06.420 I've talked to the family.

00:26:07.700 I just think it's something I would like to do.

00:26:11.900 It's an enormous challenge, but I would like to do it.

00:26:15.220 And he said, well, what's your hesitation?

00:26:17.040 I just said, I'm being counseled by everybody, including the other lawyers in the office, that it's career suicide.

00:26:23.380 And he says, if you're worried about that, go sell oranges on the side of the freeway.

00:26:28.000 And I'll never forget that.

00:26:29.820 But to answer your point, the system doesn't work if the lawyer is just kind of window dressing.

00:26:39.500 The lawyer is not there to judge.

00:26:43.560 Matt's role as a prosecutor is different than my role as a defense lawyer.

00:26:48.920 I'm here to zealously defend.

00:26:50.920 I'm here to hold Matt's feet to the fire.

00:26:53.360 I'm here to make Matt do his job, which, by the way, Matt was spectacular at his job.

00:26:59.180 And the reason was Matt understood what a prosecutor's role is.

00:27:04.140 It's not a conviction at any cost.

00:27:06.740 It's not to win at any cost.

00:27:08.960 It's to do justice.

00:27:10.620 And you can't do justice as a prosecutor if you've got a bump on a log, a sleeping lawyer, or a lawyer who's just going through the motions.

00:27:20.560 The system completely falls apart.

00:27:22.840 So I don't lose any sleep if I think my client is good for it, because I would do the same job. I do lose sleep when I don't think my client is good for the crime, because then it's on me. If I don't do my job, if I'm not on all, you know, hitting on all cylinders, it's a disaster for the system and for the client.

00:27:46.520 What about you, Matt? Have you ever prosecuted someone that you felt, oh, maybe this person is innocent?

00:27:52.840 So I've gotten that question probably as many times as Mark has gotten to how can you sleep at night one. It's an interesting thing. And a lot of people know that Mark knows this very well. The prosecutor's ethical duty is you must believe 100% in the guilt of the person you're prosecuting.

00:28:11.040 And as soon as you subjectively entertain a doubt, it is your sacrosanct ethical obligation to dismiss the case or the count immediately.

00:28:20.640 Sometimes that'll be in the form of an enhancement that you filed, but you have a job.

00:28:25.360 You don't pass go like Monopoly.

00:28:27.160 You have to go directly into court and dump it immediately.

00:28:31.280 And that's a very, very important and often sort of misunderstood role of the prosecutor.

00:28:36.880 It's exactly what Mark was just saying.

00:28:38.600 Your job is to do justice.

00:28:39.920 It's not to get convictions. It's to go in and make sure that the right thing is done. And sometimes, you know, you got to, it's hard. You know, like I had a guy once out of Newport Beach, very wealthy man who murdered his wife. And we thought that the dispute, because they're kind of on the cusp of a divorce and they're both talking to lawyers and one of those just really toxic relationships.

00:29:04.260 and he had a lot of money and you know i filed what's known as a uh a special circumstance for

00:29:12.180 financial gain in the state of california which is mark knows very well that means they're not

00:29:16.520 entitled to bail they can't get out because we believe that as long as financial as is there's

00:29:22.660 a financial component of of the murder um this i.e this guy wanting to you know if they're arguing

00:29:29.300 about money at all. That's all it takes for that. Anyway, we get into the computers and lo and

00:29:36.100 behold, what this guy was doing is he was going out and he was having sex with workers and he 0.91

00:29:41.280 kept giving his wife STDs. And that's what they were arguing about. And the more the investigation

00:29:45.680 went on, the more we learned that her family had a lot of money too. Turns out it was 0% about

00:29:52.000 about money so i had to go in immediately as it was my ethical obligation to dump it as as soon as

00:29:58.920 as soon as we got the computer results back and we learned what they were actually arguing about

00:30:03.100 my fear always was that this guy was going to split that he'd make bail and it was a million

00:30:07.500 dollar bail he could make it and then he would run and that's exactly what he did as soon as he made

00:30:12.240 bail he fled to mexico and it took us like three years to catch him again and but it was and and i

00:30:17.880 I knew he was going to, he was in my gut, I knew he was going to run, and he did, and it was a massive, it was a disaster for the case, but I had that ethical obligation to dump it because I no longer believed that it was financially motivated.

00:30:31.580 Let me let me give you. See, Matt would do the ethical thing. Let me give you an example of a prosecutor. And I don't even remember who the prosecutor was, but I remember trying the case in Compton Court as a young lawyer.

00:30:45.840 And I tried in front of a wonderful judge, Janice Clarecroft.

00:30:51.620 And midway through the trial was an assault with a deadly weapon, also an attempted murder.

00:30:58.820 And I represented a female who supposedly, with her shotgun, had stood on a balcony and shot at this person and hit them and was trying to kill them.

00:31:09.800 So midway through the trial, I keep banging away at the investigator on cross as to where the ballistics are, where the ballistics are.

00:31:20.100 So, mind you, we've almost got to the end of the prosecution's case.

00:31:24.400 They come up with the ballistics.

00:31:25.920 Guess what?

00:31:26.800 The gun that was recovered from the house does not match the ballistics.

00:31:33.740 So you'd think, oh, prosecutor's going to get up and dismiss the case, going to do the ethical thing.

00:31:39.080 Now, prosecutor got up in closing and argued, my client must have had the gun, fired the gun, put the gun down, picked up another gun, and run off with the other gun, and that's why the ballistics didn't match.

00:31:52.920 I mean, just ludicrous on its face.

00:31:55.800 The jury, I actually asked the jury, I said, you know, there's nothing that says you have to go back in the jury deliberation room. 0.98

00:32:02.520 You can vote right there, right now, and just tell this prosecutor, humiliate them right now, that that's the most ridiculous thing you've ever heard.

00:32:10.200 But they didn't take that invitation, and they acquitted in about 18 minutes. 0.96

00:32:14.960 But that is the definition of an unethical prosecutor.

00:32:19.680 Too bad I can't remember their name.

00:32:21.200 I'd hammer them on your show. 0.99

00:32:23.740 But that is how ridiculous some prosecutors behave. 0.98

00:32:27.580 So do you, I mean, of course you believe in justice 0.84

00:32:31.860 Because your attorneys

00:32:33.020 But do you think that justice is always served?

00:32:35.960 I feel like we've seen with this case now

00:32:39.000 With Blake Lively

00:32:39.900 I feel like it doesn't make any sense to me

00:32:43.540 Like, for example, now that he has to pay all this money

00:32:46.960 He's not going to pay that much

00:32:48.020 And it's probably maybe going to be

00:32:49.620 He's an insurance company paying it

00:32:51.640 But I think for people

00:32:53.980 They get really upset about this

00:32:55.360 Like, is the justice system really working?

00:32:57.580 when we see things like this happening.

00:33:02.680 Yeah, well, I mean, as far as it always happening,

00:33:05.140 yeah, it often, look, it's a,

00:33:07.960 the system is strained at the edges

00:33:10.440 and you do see injustice.

00:33:13.880 That's one of the things that I really enjoyed

00:33:15.620 about being a prosecutor is that on any of my cases,

00:33:18.760 that's your goal is to make sure at the end of the day

00:33:21.940 that the victim's family is treated well,

00:33:24.680 that you're honest with the judge,

00:33:26.060 that you present the best case you can and let the chips fall where they're going to.

00:33:31.460 But especially in the civil world, you see abuses all the time.

00:33:37.160 As a plaintiff's lawyer, I've seen abuses.

00:33:39.180 I've seen my clients be treated horribly by counties they've worked for,

00:33:42.700 where I think there was justice at the end.

00:33:44.700 But a lot of times the litigation itself can be so brutal that it's almost a second wrong that happens.

00:33:51.920 And I know Mark has seen it, you know, even more than I have, where those cases that Mark was talking about, when he really feels like his client is innocent, the ones that he's losing sleep over, those are the tough ones.

00:34:03.820 I've only had a couple since I've been in private practice, and fortunately, I've prevailed on the ones that I've had.

00:34:09.240 But you really do lose sleep because of that fear, and the more experience you have, the more cases you've seen that have gone wrong.

00:34:16.360 And as a prosecutor, look, I've had I've had jurors that have come back not guilty on cases.

00:34:21.500 I mean, fortunately, I didn't have too many of those.

00:34:23.500 I had a couple of misdemeanors. 0.99

00:34:24.540 My first DUI where the guy was was absolutely drunk, drunk off his butt. 0.93

00:34:29.520 But I lost that one because I just had I didn't have the skill set. 0.80

00:34:33.080 And I lost a bar fight once about two weeks later.

00:34:36.140 This is both in 1996 when I was just just learning how to do jury trials.

00:34:41.420 And, you know, the bad guys got away with them on that one.

00:34:44.220 One was just a DUI. Nobody got hurt.

00:34:45.840 The other one, he broke a bottle over another guy's head, only charged with a misdemeanor.

00:34:49.400 But you certainly see that, and that's why Mark loses sleep over the tough ones, because you know it can happen on any case.

00:34:57.820 Yeah, it's frustrating.

00:34:59.180 I remember another case where I had a kid was charged in Pasadena with a special circumstance, which, as Matt says, is death penalty-eligible murder.

00:35:12.620 and I knew he was, I'd done a parallel investigation.

00:35:16.040 I knew he was innocent and I had the cell phone records.

00:35:20.260 I had an alibi, I had a receipt

00:35:22.100 and prosecutor was just hell bent

00:35:25.340 on going forward with the prelim

00:35:27.120 and on top of it, tainting the case

00:35:32.420 because they had the poor mother of the victim

00:35:36.600 identifying my client at the preliminary hearing

00:35:39.540 because my client is sitting there in an orange jumpsuit next to me.

00:35:43.960 Like, yeah, do you see who killed your son in the courtroom?

00:35:46.880 Obviously, it's the orange jumpsuit.

00:35:49.420 Later, I get a tape of the photo ID, and the cop is telling, just ID this guy because don't worry, we've got other evidence.

00:35:58.880 So, I mean, it was just bad from the get-go.

00:36:01.880 I may have said, and I regret it, I do not recommend young lawyers say it,

00:36:08.140 But it was out of frustration. I may have said I told the judge when she wouldn't give me bail because it was special circumstance and held the person to answer.

00:36:17.620 I may have said, I wish I had an Uzi. I'd break my client out of here. This is outrageous or something to that effect.

00:36:24.660 Never heard of that story.

00:36:25.400 Yeah, that transcript is floating around. I often get it through my face. And, you know, ultimately, after we did a bunch of kind of further investigation, I went kind of up the flagpole of the DA's office.

00:36:43.700 They realized they had the wrong guy.

00:36:45.700 They dismissed.

00:36:47.260 We ended up suing the police department, local police department.

00:36:53.160 I'll never forget that jury.

00:36:55.020 I had a federal jury.

00:36:56.460 That jury came back, and they weren't supposed to do punitive damages.

00:37:00.760 They not only assessed punitive damages, they were yelling at me that I hadn't filed against the DA because they were so angry that the DA had prosecuted the guy.

00:37:09.540 It works, but most people don't have the resources or the wherewithal to fight those kinds of fights

00:37:20.000 Most of the time I think it winds up somewhere close to being in the right place

00:37:25.240 Most of the time, but certainly not always

00:37:28.420 Usually it winds up in the ballpark of the right thing

00:37:31.360 Let's hope that Justin Baldoni gets his career back

00:37:34.840 I feel like that would be at least something

00:37:38.000 It would be good vindication

00:37:39.400 yeah i think so too anyways you guys this was so amazing thank you so much for doing that so

00:37:46.260 everyone should go and watch your podcast on mk true crime and of course get your books anything

00:37:53.420 else that people should know and where to find you and we're gonna have you back on our show

00:37:58.780 everybody should know that exactly that's where i want to talk about i want to talk about norwegian

00:38:03.280 true crime i mean we love all the dark stories yes yeah i'll tell you that some of these netflix

00:38:10.680 shows i think i told you this out of norway are spectacular so i love it he's a very very big

00:38:17.860 author and they just did the harry hole harry hula as we say in norwegian yeah no i would love

00:38:23.500 to thank you guys so so much now i'm gonna go and watch the soccer match norway is playing

00:38:28.300 in about half an hour which is super exciting so yes thank you thank you so much and yeah i'll

00:38:36.220 see you soon on your show hopefully i love it thanks for having us thank you

Flaawsome Talk with Kjersti Flaa - July 02, 2026

Attorneys REACT !! Blake has lost it !!

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