Thomas J. McFeeley Communications

From  Sales and Service Excellence magazine October 2011 (subscription)

The Customer Always Has the Right of Way.

By John Swinburn

Executive Director of the Mystery Shopping Providers Association

The phrase is all too familiar; even calling it a cliché might even qualify as a cliché itself. The Customer is Always Right. The point is the customer’s voice – particularly the collective customer voice — cannot, and should not, be ignored. In fact, most organizations tailor their customer-facing policies and training programs largely on what they believe the customer expects, or would respond to, in the sales and service processes. In addition, companies make a brand promise to customers. If you don’t know what your brand promise is, you have a lot of work to do. Once you’ve clearly articulated that brand promise, your organization must get to work to measure how effectively that promise is being met.

But all too often organizations do not measure the actual customer experience.  By truly understanding what customers face while interacting with your sales people or other representatives, only then can you make critical adjustments (or complete overhauls) to the customer service delivery process. If you shift your thinking from “The customer is always right” to “The customer always has the right of way,” then you’ll have a complete roadmap to keeping truly satisfied and loyal customers. As importantly, your bottom line will be the beneficiary of measuring customer experience analytics.

Mystery shopping is the clearest and cleanest way to get a true measure of what’s happening on the transactional level of your organization. Mystery shopping is a management tool that verifies whether a company’s operational policies are carried out in practice.  Put another way, it measures the extent to which the company’s brand identity is reinforced at the customer level.  Mystery shopping can uncover misalignments in corporate policies that actually degrade customer service.

While you might think mystery shopping is as simple as identifying whether an associate is wearing a name tag or whether a sales person asked about buying the extended warranty, it can dig incredibly deeply into the customer experience and reveal significant improvements not considered when putting a mystery shopping program together. If customer experience management is a continual priority in your organization rather than simply providing occasional snapshots in time, you will logically follow the customer to an improved process. In other words, the customer always has the right  of way; if you follow for a little while, the customer will follow for a much longer period of time later.

Your company likely devotes considerable costs to surveys, market research and the like. Having that data is an invaluable first step in the customer experience management process. Think of mystery shopping as the central lynchpin that backs up that investment. When evaluating the customer experience management process in your organizations consider this sequence:

1. Learn about customer needs, desires, and expectations –Data mining, surveys, focus groups, etc.
2. Develop and implement or adjust processes and policies to meet or exceed their expectations–Brand promise
3. Measure whether you are adhering to your brand promise–Mystery shopping
4. Adjust policies and processes to correct deficiencies, as identified by the transparent mystery shopping process
5. Measure whether you are satisfying customers–Customer satisfaction measures, such as phone surveys, comment cards, web surveys, IVR, phone surveys, mail-out surveys, etc.
6. Repeat, starting at step 1

While surveys, comment cards and other means of asking specific questions of consumers generate valuable data, they do not provide the complete and accurate picture of the customer experience – especially taking into account issues and policies that are important to you, your company and that important brand promise. The collective data of mystery shopping often reveals revenue generating opportunities for your organization.

Consider this example from one of our member companies, LRA Worldwide. One of LRA’s areas of expertise is measuring the customer experience in hotels – an industry in which a company’s success rises and falls with customer satisfaction. LRA entered a contract with a Top 10 hotel brand that had worked hard to restructure its front-desk protocol for its loyalty program members. LRA was tasked with mystery shopping each location, specifically to ensure staff at the front desk was adhering to the new protocol and policies of the company. Hotels are almost literally built around brand promises and this chain realized that measuring that promise by evaluating loyalty program customer experiences at each location would be important in order to make these important visitors truly loyal.

The first results were extremely poor. As frequently can be the case with new processes, the employees were not performing at an optimal level. Because the mystery shopping program revealed the need for additional training, more extensive training processes were implemented by the hotel chain. With each new round of mystery shops, the service level at the front-desk improved. But even when they were performing at high-levels, the mystery shopping revealed a critical oversight.

Despite the high scores based on the training regimen, the mystery shops revealed that associates, while providing excellent service, including free upgrades and other rewards, were not being specific that those rewards were as a result of a guest’s membership in the loyalty program. For example, an employee might say, “Mr. Smith, I hope you enjoy your stay with us this week. Because we value your business, we are upgrading you to a suite and we hope you find it to your liking.”

While creating goodwill and perhaps building loyalty, this communication failed to connect the benefits of being a loyalty club member with actual membership. A simple change in wording creates that bond: “Mr. Smith, because you are a platinum member in our guest loyalty program, I am able to offer you a free upgrade to a suite for your stay.” The latter is a small, but distinct, difference that reminds the guest that his or her membership in that loyalty program was what earned the rewards that ordinary guests, or even repeat customers, would not enjoy.

Through that simple word change the hotel’s brand promise to its loyalty members was significantly bolstered. But it required numerous rounds of evaluation and on-the-fly adjustments.

Mystery shopping allows managers to have eyes and ears beyond typical customer tools. Surveys often promise a chance to win a prize or a discount on a future purchase. Those incentives increase the likelihood that the survey taker will move rapidly through the process, not giving their full attention to providing the insight you hoped to receive. Expert mystery shoppers know what they are looking for before they begin the transaction and have customer service top of mind.

The customer is always right; especially when they relay their experience and your failure to deliver on your brand promise. Rather than focusing on those individual unhappy customers, remember “The customer always has the right of way” – follow all of them, see where they are taking you. Only then will you know what they prefer and what makes them take actioin, but you’ll know if you are delivering those important factors. Otherwise, they might take the next fork in the road – to your competitors – and because you were too busy trying to blindly lead them, you never saw them leave.

Mystery shopping can help you tailor your programs to drive true loyalty

Loyalty programs, once a very effective tool in increasing goodwill with hotel customers while boosting the bottom line, are struggling to stand apart and often are not returning the investment made to create and manage them. An infusion of innovation is necessary – even a complete retooling of these programs might be called for – but first there are achievable, tangible, and optimal opportunities for hotels to get more from their loyalty-program customers in the short term that must first be explored.

Difficult economic times, combined with increasingly competitive loyalty programs by boutique hotels, are forcing the major hotel chains to take a fresh look at their own programs. While it’s clear short-term trends will include simplifying point redemption and dropping the point levels required to earn free stays and other perks, those loyalty programs that actually grant genuine recognition to guests for their repeat business and make the guests feel that your hotel is their home away from home will be the most successful in the long term.

Utilizing customer experience analytics provided by the mystery shopping process can help put the loyalty back in your loyalty program while ensuring that, moving forward, customer preferences that drive loyalty are a top priority in every facet of interactions with guests.

Before you retool your loyalty program completely, we suggest you first grab the low-hanging fruit and simply do a better job at connecting with your customers today. Take the lesson we learned from LRA Worldwide, one of our member companies of the Mystery Shopping Providers Association (MSPA). They entered a contract with a Top 10 hotel brand that had worked hard to restructure its front-desk protocol for loyalty program members. LRA was tasked with mystery shopping each location, specifically to ensure staff at the front desk was adhering to the new protocol and policies of the company.

The first results were extremely poor. As frequently can be the case with new processes, the employees were not performing at an optimal level. Because the mystery shopping program revealed the need for additional training, more extensive training processes were implemented by the hotel chain. With each new round of mystery shops, the service level at the front-desk improved. But even when they were performing at high-levels, the mystery shopping revealed a critical oversight.

Despite the high scores based on the training regimen, the mystery shops revealed that associates, while providing excellent service, including free upgrades and other rewards, were not being specific that those rewards were as a result of a guest’s membership in the loyalty program. For example, an employee might say, “Mr. Smith, I hope you enjoy your stay with us this week. Because we value your business, we are upgrading you to a suite and we hope you find it to your liking.”

While creating goodwill and perhaps building loyalty, this communication failed to connect the benefits of being a loyalty club member with actual membership. A simple change in wording creates that bond: “Mr. Smith, because you are a platinum member in our guest loyalty program, I am able to offer you a free upgrade to a suite for your stay.” The latter is a small, but distinct, difference that reminds the guest that his or her membership in that loyalty program was what earned the rewards that ordinary guests, or even repeat customers, would not enjoy.

Those slight, but important, differences are what build those intangible feelings of actual loyalty (compared to simple point gathering in the program) and give the customer that feeling of a higher status. True customer loyalty is built outside of a loyalty program; the program is a tool to enable employees to build meaningful relationships with customers based on the individual needs of each guest. The LRA example is a good reminder that even hotel employees performing at above-average levels could be leaving opportunities on the table.

Similarly, a recent study by Coyle Hospitality, another MSPA member, revealed that 67 percent of hotel reservation agents ask the specific purpose of a potential guest’s stay. While that may be considered a fair number, it means that 33 percent of the time opportunities to offer incentives (such as Free wi-fi for a business trip or the hotel’s expert concierge service to help find a great restaurant or book a tee time at a top golf course) are being lost.  Even if the caller books a stay before being offered the incentive, the reservation agent or front-desk employee should be utilizing the information to surprise the customer at check-in, especially if they are a loyalty club member.

Of those 67 percent who are executing on the fact-finding of the reason for a guest’s stay, still only 78 percent of them are utilizing the information to provide those amenities that will make the customer more comfortable, Coyle found.  While free stays earned by accumulated points are appreciated by customers, those “extra mile” opportunities will keep your customers from courting your competitors for their next trip, or even this one. They will feel an elevated status, even if the extra mile is the hotel policy required to build brand loyalty.

Hotel chains are under increasing pressure – competitive and economic. Loyalty programs must be geared at true loyalty, rather than the likely trend of strict point collection.

Mike Bare, CEO of BAREInternational, and MSPA co-founder, playfully says loyalty programs can work, but if they don’t stand apart from others, then other factors important to the traveler will win out.  “Loyalty programs make sense as long as they make sense. What I mean by that is every frequent traveler has a wallet full of loyalty cards. If staying at Hotel-X right next to my business meeting makes sense for me, the loyalty program at the Hotel-Y better be providing something special if it’s on the other side of town.”

This divided loyalty system means the guest will wait longer for free stays, but convenience is a strong factor against which hotel loyalty programs compete. Hotels currently struggle to differentiate their own programs from other chains and new efforts to link them to rental cars and airline travel will surely be met by more of the same by competitors – resulting in more consumer confusion and inability for one loyalty program to stand apart from the others. Boutique hotels know this and are acting nimbly in a way large chains simply cannot in order to differentiate their brands and programs.

Earlier this year, Global Hotel Alliance introduced GHA Discovery. This program combines the idea of a quicker status upgrade, but provides insider experiences that often large hotel chains cannot give. For example, guests are automatically enrolled as Gold members after a single stay. Gold status grants them bottled water, free Internet and other activities, including a brewery tour in Boston at one property. Other boutique loyalty programs might offer a balloon ride or local winery tours – special activities guests may not engage in on their own, but are made available simply because of their affiliation with a hotel brand.

The GHA program also provided status upgrades at 10 nights and 30 nights, an accelerated schedule compared to most large chains’ programs.

In fact, a study conducted this spring by the Cornell University Center for Hospitality Research concluded that loyalty programs tended to provide little value to customers or much return on investment for hotel firms. Loyalty programs suffer from a lack of differentiation and true customer insight, according to the report.

“The most telling sign of these copycat programs is that the basis for most program tier structures is based on industry convention rather than a strategic analysis of a firm’s customer base and the needed differentiation in the marketplace,” the report concluded.

The study evaluated a large hotel chain’s three-tiered loyalty program and recommended the program be reworked to add as many as four additional tiers. While the basic levels were restored, the study discovered four other of categories of hotel guests, based on hidden habits of a wide segment of hotel guests who typically spanned all three tiers of the program.

One such group was the “whales” – the highest spending per-visit classification of visitor who on the average only checked into a hotel every 18 months or so. But their higher-than-average spending habits give hotels reason to dig deeper about their motivation to travel and choice of hotel brands.  The study concluded that if this hotel chain targeted this important but hidden audience with exclusive promotions rather than generic price discounts, it likely would have a positive impact on their travel frequency and their already superior per-visit spending habits.

Though it can be a difficult process for hotels, the effort spent to evaluate why different groups of travelers choose one chain over another — and their habits while on property – is well worth the investment. Loyalty programs provide a special challenge because membership is so varied and the brand promise to them differs slightly from those outside the program. A highly targeted quality assurance plan aimed at loyalty programs can accelerate an important but underperforming factor in your hotel’s success.

Typically a hotel client will approach an MSPA member company in an effort to specifically evaluate the experience of their loyalty members and whether the brand promise is being met, protocol is being followed, and if there is low-hanging fruit (the purpose of their visit and the opportunities that information provides).

Suppose your firm looks deeper into the Cornell suggestions; to get better market research beyond your current tiers in your loyalty program. There will be a significant marketing expense associated with these findings and programs to cater to the data and the traveler’s preferences.

Your mystery shopping program would then track those new factors that you have identified are critical to attracting these newly tiered guests and whether they are consistently being delivered. In addition, competitors can be shopped to compare those services, amenities and other factors that are important to your loyalty club customers. As they do for your own sites, mystery shops will give you an actual but neutral view of travelers’ experience with another brand, data that will be valuable to measuring your own service delivery.

You may think that shopping a loyalty program can be difficult. It requires actual members of the program, but mystery shopping firms have programs that effectively recruit from a chain’s loyalty program members.  Experienced mystery shoppers who are recruited from a hotel’s program membership provide a seamless and transparent view of how these critical members are being handled, while bringing a knowledge of a firm’s brand and customer promise. Surveys and other valuable market research tools can provide useful insight, but the customer experience analysis provided through mystery shopping bolsters the investment in those tools, a hotel training program, and the brand promise carefully crafted by the firm.

Because mystery shoppers of loyalty programs are aware of the brand promises and execution against those promises, we have found that even small changes outside of the program – based on natural property-to-property observations – often make a notable difference.

One shopper, noting that their favorite hotel chain typically features three flag poles in front of the hotel, said that, aside from a United States and a state flag, the third pole at many locations is often empty. The observant mystery shopper remarked that at some locations, particularly near military communities, a hotel might fly a “POW-MIA” flag to appeal to the community. Such a suggestion has helped several other locations follow a best practice and build goodwill in the community, additional stays and, without a doubt, new loyalty customers.

Loyalty programs without a doubt are headed for an adjustment period. Their points-over-status qualities inherently need to be changed. Because true loyalty is built in communications and interactions with each hotel employee, hotel chains must meet the unique needs of travelers – if they even have identified them. Without a transparent evaluation of actual delivery of the services that satisfy increasingly sophisticated travelers, hotels will continue to miss out on the low-hanging fruit as well as the fruit trees they plant tomorrow.

John Swinburn is Executive Director of the Mystery Shopping Providers Association (MSPA), a position he has held for 11 years. He was involved in the process which transformed MSPA from what had been a primarily North American association into a global organization with four distinct and largely autonomous geographic regions serving the North American, European, Asia-Pacific, and Latin American markets. Swinburn graduated from the University of Texas at Austin with a bachelor of arts degree.  He took graduate level courses at Sam Houston State University.

We are offended by the publicity stunt of PETA in the form of an offensive remark about the deaths of three people. Our loved ones died in an imitation sweat lodge at the hands of a narcissistic self-proclaimed guru who lied about his qualifications and whose actions – not the lodge itself – have been found as the ultimate cause of these deaths.

We are offended that these three deaths and numerous injuries have been ridiculed by this proposed billboard and represents the ignorance we now seek to eliminate – the lack of knowledge that self-help leaders have an unchecked ability to mislead, lie, and put hard-working decent people in harm’s way for the sake of ego and wealth.

The outcome of this trial will never bring “closure” to our grief. There is no way to fill the enormous hole that Kirby’s death leaves in our family. We will always long for her joy, enthusiasm, love and compassion.  Our hearts are forever broken by her death, just as our lives are forever blessed by her life. 

The family of Kirby Brown would like to thank the members of this jury who have set aside their lives for 5 months as they carefully considered the evidence presented to them.  We appreciate their dedication and careful discernment of the facts presented and regret that so much information which may have led them to a different conclusion was withheld from them. This trial has been a bitterly trying time for us, as well as for the families of James Shore, Liz Neuman, and Colleen Conaway – and those participants who have been traumatized by the events of the Spiritual Warrior Retreat. 

Our system is clearly designed to protect the rights of the accused and while many of the rules of evidence are proper, those same rules can be manipulated to confuse and obfuscate the truth.  Just because James Ray has been found “not guilty” of manslaughter does not mean that he has not conducted his business or his teaching recklessly for years. Rather, he escaped through legal loopholes. If he practiced what he preached, he would have accepted responsibility for his actions. He is a dangerous person who has shown little regard for the victims of the tragedy in Sedona.  He should not be allowed to lead events such as the Spiritual Warrior Retreat in the future. 

As the horrific details of the three deaths emerged in this trial, we realized that the potential danger posed by “self-help” gurus extends well beyond James Ray.  Since Kirby’s voice has been forever silenced, her family will now speak for her.  We have launched a not-for-profit organization, SEEK, (Self-help Empowerment through Education and Knowledge) to educate the public about the self-help industry. It will empower all seekers to ask important questions and consider possible “red-flags” before following a self-proclaimed “guru”, even if they have been vetted by the public media.  We will work to protect those desiring personal growth by exposing scam artists and frauds. 

SEEK will advocate for professional standards, and explore avenues of accountability for this totally unregulated industry. 

The SEEKsafely.org website is officially ready for participation. Kirby, our “super nova”would be proud that we stood together, each day to speak and seek the truth. 

We would also like to thank the Victim Services of Arizona, who have been incredibly gracious and helpful to the family and friends of the victims during this nightmare.  To the prosecutorial team and police investigators, who have not just been our “legal” defenders, but have displayed incredible compassion and sensitivity all throughout this trial, we owe a great debt of gratitude.

Men, it is said (by women at least), have something called “selective hearing.”

The theory is simple. We hear what we want to hear. As a result, we remember what we want to remember.

I’m starting to think defense attorneys are like that. Or, stated a better way, they want the jury to have selective hearing, and memory.

Take the current witness, Ted Mercer. Mercer, of course, is the man who heated 100 rocks for James Ray’s sweat lodge. During his testimony, he revealed he was CPR certified, which may have surprised some. (He seems like a Jimmy Buffett burn-out. Not that that’s a bad thing. Just what he seems like.)

So when defense attorney Luis Li asked him about his observations about people’s physical conditions, he prefaced his questions with “I’m not asking you from a medical point of view, just what you observed.”  Then, when Li wanted to know if he thought ants should be all over day-old fruit in pans near the sweat lodge, he grilled Mr. Mercer as if he was the Orkin man and should possess expert testimony on insects.

Mercer, who was instructed to strictly answer yes/no questions only with those words or “I can’t answer that,” often would add to his answer “but can I explain?”  Li replies “we’ll get to that in a little while.”  Surprisingly, he never gets back to that point of explanation.

Mercer also testified that when the police asked him what was different with the 2009 sweat lodge compared to the other two James Ray lodges for which he has assisted, Mercer said the wood was different. In 2009, construction wood was used and in the past, at least a mix of “tree wood” and construction wood was used.

Li then presses Mr. Mercer to admit he has never been inside the sweat lodge, or any other for which he heated the rocks. So, he makes the point, he cannot personally testify that Mr. Ray’s lodges were hotter than others.

All great points (albeit out of context) for the defense. They do not consider that Mercer testified yesterday that the rocks themselves are what heats the lodge, and Ray ordered three times as many rocks to be heated.

Now Li’s team of attorneys is quite accomplished, talented and smart. I would even call them brilliant. They are probably the smartest people in the room, perhaps aside from the judge.

But superior intelligence does not equal emotional intelligence.

When you tell someone “we’ll get back to that” and then never do, the people in the jury box may remember that. If you say it more than 10 times, which Li has, the jury is sure to spot a pattern.  When you pick and choose when someone is an expert and when to ask questions that start with “Would it surprise you to know…” you’re walking a very clever line. You may in fact be smarter than the jury of your client’s peers, but that doesn’t mean they are stupid.

Throughout the trial, Prosecutor Sheila Polk has excelled at “cleaning up” the defense’s “selective” questioning. It’s as if the defense questions are a bag of flour dropped on the kitchen floor, she’s done a terrific job of “sweeping it up” so that the kitchen was pretty much as she left it.

Everybody has a job to do. And the defense has truly been great at highlighting bits of testimony that suit their cause. But they are selective as to context, content and the angles which they present to the jury.

Let’s hope the men and women in that box select to consider the truth, the whole truth and nothing but the truth.

Today marked the beginning to a truncated week six of the James Ray manslaughter trial. From the first few days of testimony and opening arguments that I witnessed in court both sides have been building their cases. The prosecution contended James Ray knew people could die and disregarded that notion; the defense said something else caused what it called an accident, and has frequently cited poison as a possible cause.

In the days prior to the trial, Judge Warren Darrow ruled out so-called “prior bad acts” of previous James Ray sweat lodges. In short, he said, there were never any life-threatening illnesses at previous sweat lodges. He at the time said a medical foundation needed to be presented, by experts, to show the presence of medical conditions that threatened lives.

A key witness in doing so was Dr. Jeanne Armstrong. You may recall she was not very friendly to the state, and was essentially a defense witness. At the time I wondered why the state called her, but said they must have a good reason. That reason turned out to be that she, in part, laid that medical foundation for a continuum of heat-related illnesses up to and including heat stroke. Now direct testimony about these symptoms will be allowed, and will be forthcoming.

This “prior acts” issue has been simmering since before the start of the trial. Numerous legal arguments have been forwarded by the state to try to include this evidence, and witnesses to previous sweat lodges. Judge Darrow, always careful and thoughtful , has resisted letting in this testimony.

Until today.

This simmering issue has now resulting in a full, heated boil. It’s a banner day for the prosecution. The defense is now fighting with all of its guns, immediately filing a motion for a mistrial. (It was denied, but they indicated they will file a special action to a higher court objecting to the Judge’s opinion.)

How does this ruling affect the trial? It pretty much completely changes it.

For the state, they can call witnesses from previous sweat lodges who did NOT attend the 2009 Spiritual Warrior event. Expect stories of hallucinations, out of body experiences, convulsions, vomiting, participants screaming and yelling (including one who screamed “James Ray is trying to kill us.”) and speaking nonsense – all symptoms of the heat continuum and possible heat stroke.

For the defense, they will be objecting more than normal now. Because all testimony must have proper foundation, the defense will speak up whenever a witness has not properly demonstrated knowledge. And, as Judge Darrow said today, a mistrial is a clear risk if witnesses offer testimony beyond what they know.

Luis Li, Mr. Ray’s lead attorney, also said he would be filing a motion of misconduct by the prosecution, a serious allegation in a trial. We can also expect this case now to go to a higher court if the defense follows through on its threat of a special action.

The stakes have gone way up today. Mr. Ray’s talented and high priced defense team was outmaneuvered by the Yavapai County prosecutor’s office.  It will give them a cause for appeal if/when their client is convicted, but that was a foregone conclusion anyway.

Now  the state has many more tools in its shed to help them demonstrate James Ray knew there were risks in his sweat lodge ceremony.

And this simmering legal event is now likely to become a barroom brawl. Expect all the stops to be pulled and the intensity to increase, and to stay high through the end of the trial.

Stay tuned

When I think about my cousin Kirby Brown, I often think of imperfect people.  She cared about everyone, but she paid special attention to those who might have had a checkered background, who might have been left behind by society, or otherwise was an afterthought.

So when Fawn Foster (a worker at Angel Valley) took the stand today, I immediately thought about Kirby. Foster has a history of arrests (including a DUI about 15 years ago, possession of drug paraphernalia) that the defense plans to use to impeach her credibility. (A witness’s past is relevant; the defendant’s is not?)

As I watched her testimony, I learned that she stayed down by the sweat lodge during the imitation ceremony “because my gut told me to” and that she helped people she didn’t know “because that’s what you do.”

A veteran of about 10 sweat lodges, Miss Foster was concerned by what she saw and called the scene after the lodge as “about the worst thing you could imagine.” She had very good recall of what she saw and heard, including:

• Dream Team members pushing a participant back into the sweat lodge until someone spoke up for the woman;
• Someone saying “We have three people down back here” after round 7 of the ceremony, and Mr. Ray responding by saying they would have wait another round (about 15-20 minutes)
• Mr. Ray calling for 18 rocks in the lodge for one round, a number she called “astronomical.”

When she testified about the burning of the lodge two days after the deaths, Foster became emotional. Foster, who is at least 50 percent Native American, clearly respected the sweat lodge ceremony and was moved by the tragedy.

So I wondered if Fawn had said hello to Kirby during the week. Doubtful, but she was the type of person Kirby would spend an extra moment or two with. She would ask her about the locale or ask for a restaurant recommendation, or a great hiking trail. At the end of that conversation, Foster would feel a little better about herself, and seek out Kirby again. We all sought out Kirby.

Having met literally hundreds of people directly because of this tragedy, I’ve been reminded that Kirby had so many friends to whom I might not give a second chance. Or even a second glance.

She had that magical ability to instantly see something great in everyone, and to find it within one conversation.

So while Fawn Foster might be called an alcoholic or drug user (perhaps in court today, by the defense), I’ve learned to see something different. I choose to see her heart, her goodness, rather than her “record.”  I once heard that everything you can remember about your life is in your past. I don’t know who first said it, but it could just as well have been Kirby.  Today Fawn Foster is a hero; someone who is coming forth to tell the truth because “that’s just what you do.”

If we can all learn that lesson from Fawn and Kirby, we can make sure these senseless deaths actually have some meaning and we live a better today because of them.

I am a fan of the New York Mets (one of my many faults, I know). Have been since age 4.

One of my favorite players, just a few years back, was a pitcher named Steve Trachsel. He worked very deliberately – yes, slowly – on the mound. People called him “the human rain delay” and said watching him pitch was like watching paint dry.

But I liked him because his deliberate nature allowed me to think about his next pitch as he did. Even when I saw him pitch in person several times, I could follow his thought process: Whether is was disrupting a batter’s timing, throwing inside or outside/up in the strike zone or down, when to throw to first, or which pitch to select in a certain count.

He wasn’t the best pitcher in the world, but to me, his approach was clear and I understood his strategies more often than not. But, I do admit, he was a nightmare for other people to watch.

I thought of him today watching the James Ray triple manslaughter trial. Today’s witness, Melinda Martin, is a former James Ray employee who was both at the Spiritual Warrior retreat and has spoken to the news media about the tragedy. Her testimony will not surprise the defense too much.

The defense attorney who will cross examine her is Tom Kelly. He is the man who has complained about the speed of the trial, complaining “I’m a busy man” who seemingly cannot afford a trial longer than anticipated. Every day he has objections and concerns, many relating to the 6^th Amendment (essentially the right to a speedy trial).

But he has objected dozens of times to the state’s questions to Ms. Martin. Form of the question. Leading questions. Lack of foundation. It seems as if he’s objected to about 50 percent of Sheila Polk’s questions (and winning many objections by the way).

Obviously, her testimony stands to be among the most damning for James Ray; she was employed for only a few months; had never been to Spiritual Warrior or one of Mr. Ray’s sweat lodges; spent a lot of time helping others and being shocked at the conditions people were in, only to be told it was “normal” and to assume a sunnier disposition about the whole experience.

So Mr. Kelly’s repeated objections are serving to: keep out damaging testimony, to throw the prosecutors off their game; and to play both sides of the same coin by working slowly while also complaining things are not moving quickly enough.

Aside from possibly frustrating a jury that is surely eager to move along, Kelly’s legal strategy is fairly sound. And, truthfully, many of Ms. Polk’s questions are inadmissible, perhaps her attempt to get the jury to hear things that they won’t forget, even if she needs to rephrase the question.

These are among the legal maneuvers designed to convict, or acquit, a defendant. It’s all part of the game. While Kelly’s stall tactics annoy me, I’m thinking maybe I young lawyer is watching him like I once watched Steve Trachsel.

The legal system, as we know, is not perfect. And neither are the lawyers who work in that system.

I try to remind myself of that fact every day while I watch the James Ray manslaughter trial. When  I saw Dr. Jeanne Armstrong’s name on the state’s witness lists, I furrowed my brow. I have read the transcripts of her two police interviews. I knew that she personally attended 10 James Ray events; I knew she claims to have heard almost no chatter in the tent that people needed assistance (as a half dozen witnesses have already testified). I knew she claims she had no idea anything was wrong until she stepped out of the sweat lodge to see what Lou Caci described as “a battleground.” (She of course didn’t paint such a picture. Shocking I know.)

Because she’s a state witness, the prosecution has the right to ask her questions (redirect) after the defense attorneys complete their cross examination. Prosecutor Bill Hughes seems like a nice man. He’s a bit soft-spoken, polite, and unassuming. I can picture him as an usher in his church. But I thought he missed many opportunities. Among the testimony he could have jumped on, but did not:

• Dr. Armstrong did not think Lou burning his arm was severe enough to check on him or stop the ceremony;
• Her roommate, a woman named Amy, was carried out of the tent because she “passed out” (some of the words Dr. Armstrong DID hear). Dr. Armstrong assumed because Amy was “petite” that her injuries didn’t warrant checking up on (during or after the sweat lodge)
• Dr. Armstrong attended 10 events, and five days of Spiritual Warrior, but hardly knew anyone’s name, including the last names of her roommates;
• She claimed to be upset by the impression in the media that Ray was a cultist or running a cult (a word hardy reported in any mainstream media, because I personally monitored all stories and was in touch with many reporters) yet claimed not to know Beverley Bunn’s last name. Beverley was the first victim of the event to go on the record and was on each morning show, the front page of the New York Times, 20/20 and Dateline;
• Dr. Armstrong thought the 2-hour ceremony was about 30 minutes long; but correctly knew ambulances didn’t arrive for about 25-30 minutes after she began CPR on James Shore and Kirby Brown;
• She claimed it took her 1-2 minutes to exit the lodge, even though she traveled further than Dr. Bunn, who testified she took up to 10 minutes to exit because she was helping lift a heavy woman out of the tent;
• Dr. Armstrong testified that one of symptoms of heat exhaustion, which comes before heat stroke on a “continuum” is impairment, but was not asked if she or others suffered from impaired judgment
• She testified she tuned “the entire thing” out (rounds 3 to 7 at least) but nobody asked if she was sleeping, was passed out or possibly had impaired judgment herself.

This is Mr. Hughes’s profession, and there are many things he’s surely thought of about this case that never crossed my mind. If he told me I wasn’t mourning properly or I wasn’t being a good public relations practitioner, (as one journalist told me weeks after my cousin died) I might take exception. I do think the state is carefully laying groundwork, leading up to medical experts. And, truthfully, the jury can choose to mostly ignore her testimony because it conflicts with so many others’.

But from my couch, I saw a lot of wasted opportunity with Dr. Armstrong. I personally wouldn’t have called her to the stand, but I assume the state had a purpose. Her testimony following directly after that of Lou Caci, a 20-year friend of Mr. Ray’s probably eliminated some points the state had just earned.

And, let’s face it, it’s early in the case. One witness in a four-month trial is probably not as important as it seems in real time. But today it feels like a lost opportunity.

Information is power. Limited information is dangerous.
That’s what I keep thinking as I watch this trial unfold. James Ray’s lawyer, Luis Li, told the jury in his Opening Statement that Angel Valley burned the sweat lodge within 48 hours of the incident. I remember being on a conference call of James Ray’s just five days after the event in which Barb Waters (a Dream Team member) talked about the closing ceremony to the event and about the healing power of burning the sweat lodge.
Every person there was given a match to help light the fire to destroy the sweat lodge. James Ray thanked Barb for summarizing the event and apologized for not being there (he left town hours after the sweat lodge).
So while I watch the trial, and listen to the commentators on InSession, I keep waiting for the evidence to surface. There was a reference to that conference call in court this week, so it’s probably a matter of time. Or perhaps it’s a matter of 509(b)(2) so some other legal clause that binds the proceedings in Camp Verde, AZ.
Even when the truth comes out, it can be shaded (or not properly illuminated) by the lawyers involved. Stephen Ray suffered a coma due to his injuries in the sweat lodge. He doesn’t know how he got out of the tent. He woke up 2 or 3 days later in the hospital. He remembers saying “I’ve got to get out of here,” verbalizing  the so-called “runner’s wall” he has experienced in marathons and triathalons. Defense Attorney Truc Do clarified that he didn’t specify that he has physical discomfort or other symptoms of illness. And several times she referred to his foggy/blurry memory, as if it happened due to a ragweed allergy.

The truth is Stephen Ray is a very likable witness. Soft spoken, in shape, doesn’t seem like he would hurt a fly. He takes care of himself and seemed like the kind of reflective person than could have benefitted by the teachings of a responsible mentor.

Today he has lost most of his sense of smell and taste. His memory sometimes suffers, as the defense has ironically used in its favor.

This prosecution witness has enabled the defense to score points in its several hours-long cross examination. As with all other witnesses, defense attorneys showed him the waiver that he had signed upon his arrival at Angel Valley. The fact that waivers do not apply in criminal situations – and that the only 3 waivers in question in this case are those of Kirby and James Shore (and if Liz Neuman signed one at all) – is never mentioned to the jury, at least not yet.

The defense keeps going back to the “poison theory”; in Stephen Ray’s testimony they cited two doctors reports that said he appeared to be a victim of poisons and not heat stroke. But the other 298 pages of his medical record were not presented as evidence. Li, in his opening, mentioned that the tarps were stored in a shed that contained rat poison.  That hearsay statement is not yet in evidence, yet hints of poisoning are sprinkled in throughout.

That’s where reasonable doubt comes in.

So the prosecution needed to score some points that the defense claimed this morning. Sheila Polk and Bill Hughes, the prosecutors, also have to try a case within a case, that these people died, and were injured, from something other than poison or other theories that pop up during the trial.

Only members of the jury know whether anyone “scored points” today. But in three months, when the jury convenes, will they even remember the subtleties of law or the highlights of anyone’s testimony.

Later in the day, Lou Caci was called to the stand as a prosecution witness. Again, I found myself thankful that Lou was well dressed, articulate and composed. In my mind, it’s helpful that participants were strong, successful, ambitious people.  But I don’t know if it’s helpful to the case, or to my cousin’s legacy. I do not want her remembered as a cult member; a freak who shaved her head (she cut it short, not bald). So personally I’m glad to see well-spoken, well-dressed people take the stand.

Lou’s testimony was difficult to hear. Liz Neuman’s death reminded him of the death of his brother and father (who died of cancer, according to his testimony) due to the way she was breathing in the lodge. He questioned why he returned to the sweat lodge after burning his forearm about halfway through. He wondered on the stand why he didn’t say anything about Liz’s struggles.

The prosecution is trying to get testimony included that James Ray was close enough to hear of Liz’s struggles; that testimony continues tomorrow.

But for tonight, I’m reminded that death and loss (of lives and long friendships) are all over this case. No matter what happens in this trial, Lou Caci will always wonder why he returned to the tent and then why he didn’t get Liz help sooner.

This trial — this Spiritual Warrior event — contains a lot of loss and pain. I hope the truth set us all free of that. But sometimes I doubt it will