Trial is not a law school exam. Just because you can technically put in evidence of certain elements of damages, doesn’t mean it’s in the client’s best interest to do so. It’s up to you–after having the conversation with your client, of course–to make strategic choices on damages. Afterall, the goal is to maximize chances of getting the best possible verdict for your client.
On this episode of Trial Lawyer Nation, Michael Cowen and Malorie Peacock continue their discussion on how they overcame the odds to win $17.5M in damages for their client in a case against a forklift manufacturer. In this part two of the series, Michael and Malorie share insight on how they told the client’s damages story. Tune in to learn why they presented the client as a strong superhero, how they found a different story for each of the damages witnesses to tell, why you should use the KING flipchart, and the persuasiveness of the “want ad” technique when asking for compensation.
To learn more about how Michael and Malorie established liability in the case, listen to part one.
Don’t miss out! Michael’s book, Big Rig Justice: A Comprehensive Guide to Maximizing Value in Truck Accident Cases is now available!
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
[03:30] Catastrophic damages: Malorie explains that the client’s foot was crushed between the forklift and a racking system in a warehouse. The crush to the foot ultimately resulted in a below-knee amputation of the client’s leg. The decision was made to amputate below the knee, as opposed to at the ankle, due to the greater prosthetic options.
[06:41] Splitting 50-50: Michael and Malorie split the entire trial 50-50 and that began with jury selection. Michael explains that it was critical to have Malorie handle the damages part from the very beginning, including jury selection, since she was going to be asking the jury for money in closing and needed to begin to develop the relationship with the jury.
[09:47] Presenting damages in opening: On the damages portion of opening, Malorie took a more “factual” approach. Strategically, they wanted to sell the jury on liability before they pressed too hard on damages.
[11:45] Making choices on damages: Michael and Malorie didn’t ask for past medical bills or lost wages. This was a strategic decision to anchor the jury to higher numbers, which ultimately worked in their favor. Before giving up an element of damages, though, it’s important to have the conversation with your client.
[18:39] Don’t bore the jury: Malorie shares her approach for getting a different story from each of the damages witnesses.
[20:01] Use the KING flipchart: During trial, Malorie wrote down really great phrases and words from the witnesses that she was able to use for two purposes: to keep the jury interested and to repeat in closing.
[24:24] Client’s social media videos were a goldmine: The client had posted videos of himself on TikTok–such as trying out his new leg and trying to exercise at the gym–which turned out to be very powerful videos that Michael and Malorie used on direct with witnesses.
[30:00] Saying no: Saying no to some witnesses who wanted to testify was one strategic decision that was key to getting the verdict.
[33:41] The “want ad”: Malorie shares how they came up with a way to ask for the amount of money that would be enough to compensate the client for his loss, but would also be tied to the evidence, make sense, and be persuasive.
[39:17] At the end: Malorie shares that she had a fleeting moment of disappointment because the client didn’t get $38M, an amount she believed the client deserved. However, the client still got an eight-figure verdict, which was still a great result for him, will help him get the medical care he needs, and help compensate him for the loss that he suffered.
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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.