On a good day, a personal injury trial can feel like an uphill battle. Now, add a small inhospitable venue, a less-than-sympathetic client, and a slew of video witnesses into the mix. That’s exactly where Michael and Malorie found themselves recently trying a commercial vehicle case. In this episode of the Trial Lawyer Nation, they’re here to reflect on the trial and discuss the unique challenges they faced, the strategies they employed, and actionable lessons you can take into your next trial.
To set the stage, the case involved an oilfield worker rear-ended on the highway. He suffered significant structural injuries, returned to work for a year, and ultimately had a hip replacement and additional therapies.
While liability was never in doubt, damages is where Michael and Malorie faced an uphill battle. The first challenge was that the client’s medical records said he had degenerative disc disease from childhood. How do you establish that his injuries are attributable to the motor vehicle wreck?
To complicate matters, the client returned to work, performing the same responsibilities as before the accident, only seeking treatment sporadically. To keep things interesting, the judge allowed the admission of evidence of the client’s cocaine use around the time of his treatment. These are just a few of the issues that threatened to derail our damages claims.
Join us on this episode to hear the details of the case, including our future-focused approach, witnesses and experts we called and why, the unique way we presented the medical and non-economic damages witnesses, and much more on this new episode of Trial Lawyer Nation featuring Malorie Peacock.
Name: Malorie Peacock
About: Malorie J. Peacock is a Partner at Cowen Rodriguez Peacock. She was born and raised in San Antonio, Texas, and received her J.D. from the University of Houston Law Center. During her time with Cowen Rodriguez Peacock, Malorie has worked on numerous commercial vehicle, trucking, and wrongful death cases. Malorie brings close attention to detail, commitment to finding safety issues and areas of neglect, continued utilization of technology, and cutting-edge visuals in cases, along with a sincere passion for helping those who have been hurt in every case.
Company: Cowen Rodriguez Peacock
Top takeaways from this episode
- You don’t need to prove your whole case with one witness. A witness to establish damages does not have to know everything about the client’s life or know them before and after the crash and be able to compare. Instead, it has to be someone involved. The key is to string together tidbits of information into a coherent story.
- Before using video depositions during a trial, you need to know the critical predicate questions in your jurisdiction to lay the foundation to use that either as a demonstrative or to get it admitted into evidence because it makes a giant difference. You also want to make sure your videos are reasonably short and engaging. None of the videos in this case exceeded 25 minutes.
- Your client may not be likable, but you must protect and fight for them. Some clients are tough to love, but if you take their case, you want to protect them as best you can from the jury selection process and throughout the trial by looking out for obvious sentiments that could go against your client.
[01:45] The case many lawyers didn’t want to touch (Including us): Malorie Peacock provides the background for the commercial vehicle accident case.
[02:33] The challenges with the case: Michael lays out the challenges and how it looked like an impossible case to win.
[04:41] Surmounting roadblocks: Despite the many challenges, Malorie knew that the fighting chance was in identifying and telling the most important stories.
[07:24] Witnesses make a great difference: Michael commends the choice and organization of witnesses called and how their testimonies help tie the evidence together and paint the full picture.
[15:50] The smart way to use video depositions: Malorie and Michael discuss how they used video depositions, carefully editing the testimony to go straight to the point, and keeping it brief.
[22:43] Use your expert witnesses as brushes to paint the true picture: Ultimately, you’re telling a story during trial. Sometimes you need other expert witnesses to help convey the story.
[28:10] Keep notes: How the team transformed live notes into exhibits.
[31:33] Why Malorie initially didn’t want to take the case: Malorie shares why the team almost did not take the case and the importance of letting the merits of the case lead decisions.
[36:41] With an unsympathetic client, jury selection is crucial: Why the team chose to bring in jury consultants, Michael’s admission that this voir dire was different from anything he has done before, and his favorite question, “Have you ever loved somebody that you didn’t like?”
[44:20] Trials can change people: Malorie recounts her personal experience with the client and his efforts during the process to reconnect with his family and be a better person.
[52:21] Settle when the number is right: At what point does it make sense to settle during trial? Michael and Malorie share their experience.
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In this popular and award-winning podcast for trial lawyers, noteworthy author, sought-after speaker, and renowned trial lawyer, Michael Cowen explores critical topics distinctive to the legal profession with some of the biggest names in the industry – specifically focused on developing extremely efficient law practices, securing a competitive edge in the industry, and wildly excelling in the courtroom.