115 – Malorie Peacock – How to Get Compelling Testimony From Treating Doctors

There’s data going all the way back to the 1970s showing that people have lost a leg while operating a forklift. Not only do these leg crush injuries keep occurring, but it’s the most common injury with a stand-up forklift.  It’s a big problem. However, the industry has been able to avoid having to change anything because they’ve been able to get the standard written to support their design decisions. 

On this episode of Trial Lawyer Nation, Michael Cowen and Malorie Peacock discuss how they overcame the odds to win $17.5M in damages for their client in a case against a forklift manufacturer.  All this occurred in a case where the defendant said they’d never even pay $100k. 

Tune in to this part one, of a two-part series, as Michael and Malorie discuss how they established liability in the case. What was one of the key winning trial strategies? Not getting sucked into disproving every argument the defense made. 

Don’t miss out! Michael’s book, Big Rig Justice: A Comprehensive Guide to Maximizing Value in Truck Accident Cases is now available!

Featured Guest

Name: Malorie J. 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 to help those who have been hurt, to each and every case.

Company: Cowen Rodriguez Peacock

Connect: LinkedIn 

Episode Highlights 

[04:39] Case background: The client operated a stand-up forklift, lost control of the forklift and crashed, resulting in a leg amputation. These types of incidents occur once every eight days, but the industry has been winning trials on defect allegations for decades.  Up until Michael and Malorie’s trial, the forklift industry was undefeated in the 2000s. 

[08:38] Understanding how a forklift works and the problematic design: The forklift is operated standing up, with one foot on a dead man’s pedal, one hand on a lever, and the other on a tiller. Just a minor loss of balance from someone steering a little too hard, or unexpectedly taking their foot off of something, can ultimately result in a crash where a foot gets crushed by a 7,000 pound forklift.

[17:52] Three data sources on injuries: There were incident reports (limited details), an OSHA database (type of injury/equipment but no manufacturer info), and another manufacturer’s data (revealed percentage of injuries). Additionally, one study showed 474 injuries and recommended a door for forklifts.

[21:34] Random test v. peer-reviewed study: Michael and Malorie discuss how they taught the jury the difference and why it mattered in this case. 

[36:35] The case was complicated, but strategic decisions made the difference: The client was not properly trained and the employer’s negligence was not considered. However, blaming the client would be unfair, and the focus should be on fixing the design. The defense argued about certification requirements, but it was better, strategically, to embrace the lack of training. Winning the case was a close call.

[40:08] Revealing the truth: Michael and Malorie share why it is essential to read defense cited literature, and how doing so made a difference in their case.

[46:13] Two ways to solve the problem: Michael and Malorie offered two alternative designs to the jury–a door or a seat with a seat belt. 

[51:38] Most jurors aren’t familiar with forklifts, so visuals were key: Michael and Malorie used visuals to make things simple–annotated photographs and videos.  They tried to use two life-sized forklift compartments—one the way it was and one with a seatbelt, but they wouldn’t fit through the courtroom door. Lesson learned!

[59:17] Preview of part-two: On part-two of this series, Michael and Malorie will discuss damages and how they made it a story–not just about despair–but also a story about love, hope, striving, and overcoming.

Connect with Trial Lawyer Nation

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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.

Produced and Sponsored by LawPods.

There are great episodes and there are John Romano episodes. This is not one you want to miss.

On this episode of Trial Lawyer Nation, Michael sits down with legendary trial lawyer John Romano as he shares wisdom acquired over five decades of law practice. John reveals valuable insights into the mindset of a winning trial attorney, practical preparation tips, the importance of  jury research, and even shares his pre-trial preparation checklist. Through personal anecdotes, John also addresses the fear frequently felt by young lawyers and offers practical advice for persevering.

There’s still time to sign up for Cowen’s Big Rig Boot Camp CLE Trucking Seminar. We’ll be covering the Nine-Step Method for Maximizing Value in Trucking Cases, Proving Corporate Negligence, Claims Against Other Parties, and more! Register now at BigRigBootCamp.com

Featured Guest

Name: John Romano

About: John Romano is a founding partner of Romano Law Group, a personal injury law firm located in West Palm Beach, Florida. John has successfully represented clients in a wide range of personal injury cases, including auto accidents, wrongful death, medical malpractice, and has successfully litigated to a verdict nearly every type of civil and criminal case. He is a civil trial advocate board-certified by the Florida Bar and the National Board of Trial Advocacy, as well as the American Board of Professional Liability Attorneys.

Company: Romano Law Group

Connect: LinkedIn

Episode Highlights 

[03:52] A marine’s leap into the legal world: John, a former marine, recounts his journey of finding his true calling as a trial lawyer.

[09:11] The vital role of mentors, seminars, and practical skills: John attributes his professional growth to the valuable lessons absorbed from seasoned lawyers and extensive workshops. He also delves into learning about the innovative use of jury research via mock trials and focus groups which honed his trial abilities.

[12:12] Debunking the myth that ‘it’s so tough to get trials’: Romano argues that trials are there, but that sometimes plaintiff lawyers look for ways to get out of trying a case. But he underscores that the client’s welfare should remain the overriding factor in all decisions. 

[15:33] Fostering hope in the face of legal challenges: John goes into the mental aspects of lawyering, particularly the interplay between fear and hope during trials. He advocates for embracing fear, transforming it into courage and action in the interest of clients. 

[23:30] Secrets in tackling a spectrum of cases and strategies: Romano shares insights from a variety of civil and criminal cases.

[29:08] The power of early preparation and preservation of evidence: John emphasizes the importance of proactive case preparation. He details the process, from the preservation of evidence to theme development, treating depositions as significant events, and the utility of written discovery. He also endorses early engagement with a trial consultant.

[33:18] Unpacking the pre-trial preparation checklist: John shares his pre-trial preparation checklist includes communication with defense counsel and going over deadlines, among other things.

[39:14] Leveraging facts, jury research, and persuasion: Romano shares his key strategies for successful case handling, underscoring the role of good facts, jury research, compelling opening statements, and effective persuasion techniques.

[44:29] Communicating effectively for impactful legal arguments: John explores the art of persuasion, emphasizing its role as a tool to help others understand and connect with one’s ideas rather than to force acceptance.

[47:34] The profound influence of mentors in the legal profession: Concluding with a poignant reflection on mentorship, Romano asserts its profound importance. Mentors, he says, offer more than just knowledge; they provide guidance, protection, and personal fulfillment, and can come from any walk of life.

Connect with Trial Lawyer Nation

☑️ Follow us on Twitter, Facebook, Instagram & LinkedIn.

☑️ Subscribe to Trial Lawyer Nation on Apple Podcasts, Spotify, Google Podcasts, and YouTube.

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.

Produced and Sponsored by LawPods.

A Trial Lawyer Nation listener since his Defense days, Ben Newman joins the podcast today to discuss his recent $1,076,000 verdict in Collin County, Texas.

At first blush, the facts of this case are problematic. Stemming from a spine injury the plaintiff suffered in a collision at an intersection, the case faced hurdles including, a traditionally conservative venue, a dispute over which party had a green light, an “invisible” injury, minimal therapy and injections, medical expenses of only $45,000, and a defendant that was an individual, not a faceless insurance company or corporate defendant.

Ben credits much of his success in this case to standing on the shoulders of legendary trial lawyers such as Joe Fried, Keith Mitnik, David Ball, and other Trial Lawyer Nation guests. “[The Trial Lawyer Nation] podcast is really what started me down this road of tracking down all of these resources to help me develop my trial technique.”

Ben says he consumed every podcast, video, book, and resource he could find on trial skills and trying cases. “Everything that I do in the courtroom can be traced back to something that I’ve read or something that I’ve seen.”

Join Michael Cowen and Ben Newman as they explore Ben’s incredible verdict and uncover the tools, tactics, and trial skills Ben employed to turn a $50,000 pre-trial offer into more than one million dollars for his client.

Featured Guest

Name: Ben Newman

About: Ben is a civil trial lawyer. He handles a wide range of cases in state and federal courts throughout Texas. For Ben, trial work is not just his profession, it’s an all-consuming passion. He spends countless hours learning the latest trial techniques. And other attorneys frequently hire Ben late in their cases to assist in taking them to trial.

Ben was recognized in Texas Monthly and Thomson Reuters as a Super Lawyer Rising Star. And he’s a lifetime member of the Million Dollar Advocate Forum – a group limited to trial attorneys who have won million-dollar verdicts, awards, and settlements.

Firm: Ben Newman Attorney at Law, PLLC

Connect: LinkedIn | 361-438-1073 | Email

Episode Highlights 

[02:46] A passion for trial: Ben Newman discusses his background, his passion for trying cases, and why he made the jump from defense to plaintiff’s work.

[05:39] Cultivating referral sources (and support): Ben shares how he got support from other firms and attorneys after hanging his shingle and was able to begin generating referrals quickly.

[09:54]: Learning the craft of a trial lawyer: Searching for valuable information to listen to during his commute, Ben discovered the Trial Lawyer Nation podcast. He listened to every episode and began digging into the resources Michael and his guest provided.

[14:53] The $1,076,000 verdict: Ben discusses the details of this case, addresses the unique challenges he faced, and share how one specific fact sold the jury.

[24:23] Calling the first witness: How he learned from David Ball to call the witness that can confirm the most facts from your opening statement. This way, you’re keeping the jury on track, sticking to your promises, and doing it quickly.

[29:50] Framing damages in the opening statement: How Ben focused on the invisible injuries, used an analogy from David Ball, and the per diem damage model.

[36:17] The nuances of the trial: The important role lay witnesses played, trusting the jury to make an unbiased decision, detailing harms and losses, and sending the case to the jury.

[43:42] Cutting against the stereotypes of injury attorneys: People expect injury attorneys to come to trial aggressive and ready to fight. Flipping the narrative, Ben made a point to be polite and positive to everyone in the courtroom — including the defense lawyers. 

[46:25] What’s next for Ben: From trial settings to parachuting in on cases, Ben has a list of things on his agenda. Overall, he’s continuing to learn, improve, and try as many cases as he can.

Connect with Trial Lawyer Nation

☑️ Follow us on Twitter, Facebook, Instagram & LinkedIn.

☑️ Subscribe to Trial Lawyer Nation on Apple Podcasts, Spotify, Google Podcasts, and YouTube.

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.

Produced and Sponsored by LawPods.