Michael Cowen

33 – Julian C. Gomez – Autonomous Vehicles: People v. Machines

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In this episode of Trial Lawyer Nation, Michael Cowen sits down with automotive products liability attorney, Julian C. Gomez, to discuss his expertise on product cases, specifically dealing with autonomous vehicles (AKA: Robot Cars). Most attorneys can relate, but the gist of every other talk Michael has ever heard on this topic, before Julian’s, was that we’re going to get robot cars, they’re never going to crash, and they’re going to put everyone out of business in 5 years. This is certainly what the automotive industry is trying to promise, but the data we have to date suggests otherwise.

Julian’s beginnings, getting into the field of automotive product cases, started back when he clerked for a judge who was the first in the country to try a Ford Explorer/Firestone case. He was able to sit through the trial and learn from some of the best lawyers in the country, which sparked his interest and set him on this path. When Julian started doing automotive product cases, he noticed the engineers were starting to address the legal issues as opposed to the engineering issues behind them. He points out that the engineering is really not all that difficult – the vehicle uses data gathering devices, puts the information into a data processor, which processes the data based on an algorithm, then an answer or result is spitting out, and makes the vehicle do something. Getting too far into the details can sometimes overcomplicate things, which Julian compares to the area of autonomous vehicles and states “I don’t have to be a computer engineer, to know that my computer is broken or to know that it’s working.”

Julian then describes the different levels of crash avoidance technologies (1-6) to include all sides of the vehicle along with the various types (signaling warnings to taking full-blown actions with the vehicle). He goes on to talk about how the levels start to gray out based on human data input as well as how there really are no “driverless” vehicles on the road today, despite what you hear on the news. He also discusses a recent AAA report addressing the confusion regarding the different types of autonomous systems due to the industry, and manufacturers, because there is not a standardized naming structure for these systems.

Interestingly, Julian explains the current way they are measuring the level 3-5 type autonomous vehicles is through disengagements, where the human driver has had to take over the car’s actions instead of it driving itself. In comparison, Apple had roughly 1 disengagement every 1.2 miles whereas, on the opposite end of the spectrum, Waymo had roughly 1 disengagement every 10,000 miles. And while there is a huge disparity between the top performers and the bottom, and numerous tragedies throughout the industry, Julian points out the real problem is there haven’t been enough vehicle miles driven to know how safe they are going to be. He also talks about the millions of vehicle miles driven each year compared to the thousands of deaths that occur on the road, and then extrapolates the data from when Uber had its recent fatality, based on the number of vehicle miles driven by autonomous cars at that point, to determine we would be experiencing around 1.6 million deaths each year. He brings this point home by stating even if you cut that number in half multiple times, it’s still much more than what is happening today on our roads.

Another problem Julian points out is the conflicts that occur between an objective algorithm system in the computer within the car working with a human subjective system. He gives a great example of how we’ve all seen cars, even before we started driving, interact in different ways when the driver is planning to turn right (IE: roll slowly through the light, even if it’s technically not the correct way). As humans, we are able to gauge how much space/time we have between our vehicle and the vehicle turning in front of us, whereas autonomous cars look at it from the standpoint of what the rule is and how it will obey that rule.

Michael points out how the computers can only do what they are programmed to do, making the job of the engineers to think of every possibility and then the safest possible outcome for each of the scenarios unfathomably enormous. Julian notes that as humans, the second most common function our bodies perform (breathing being the first) is seeing. We have been “seeing” and processing things through our eyesight for our entire lives, since day one. Some even suggest for a computer to process the amount of data we have seen in our lives, the computer would be the size of a warehouse, much less the size of a car, or the size of a computer in a car. Julian also discusses the responsibility to predict the unknown, which is nearly impossible, as if to say “tell me everything you don’t know.”

Michael and Julian recount the unfortunate incident in Arizona with the self-driving Uber car, the details of which are likely not what you might have heard previously, nor are they what you might expect (hint, hint – the frontal collision system was turned off, but by whom? Listen to find out). Also, perhaps somewhat shockingly, was the fact that the case was settled in 10 days, which Julian notes, might give you a sense of how Uber felt about their culpability in the case. Michael and Julian also discuss the perceptions of the “auto-piloted” cars as set forth by the marketing departments of the vehicles and how they are not exactly in line with what the cars are actually equipped to do.

The episode concludes with Julian revealing his process for evaluating which product liability cases to take on as well as the “why” behind them versus simply going after damages, the results of which could do more harm to the legal industry than good when the wrong type of cases are pursued. They also make some predictions as to the future of mass-produced autonomous vehicles and where they’ll likely be used. As this technology continues to evolve, this episode drives home (no pun intended) the vast areas of the unknown in the auto industry in regards to where blame should be placed in such an environment where humans are sharing responsibility with computers, along with the engineers and companies who design them, to keep our roadways safe for everyone.

 

BACKGROUND ON JULIAN C. GOMEZ

Julian C. Gomez is an attorney in McAllen, Texas. Julian was raised in South Texas. Julian is a ninth-generation Texan and his family still ranches on their original Spanish land grant. Julian graduated from Texas A&M University with a degree in Agricultural Economics and was a member of the Corps of Cadets while at Texas A&M.

After graduation, Julian spent time on the floor of the Chicago Mercantile Exchange as an analyst in the cattle futures and options pits. Julian graduated from the University of Houston Law School in 2000. Julian was a law clerk for Filemon Vela, United States District Judge, Southern District of Texas, Brownsville Division and a law clerk for Reynaldo Garza, United States Circuit Court Judge, Fifth Circuit Court of Appeals. After his clerkships, Julian founded The Julian C. Gomez Law Firm and has practiced there since.

Julian has a national and international practice focusing primarily on catastrophic product liability and negligence cases, mass torts, and contingent commercial litigation. Julian is a past Chairman of the American Association for Justice’s Products Liability Section (the largest organization of plaintiffs product liability attorneys in the U.S.); on the executive board of and the vice president of continuing legal education for the Texas Trial Lawyers Association, on the board of directors of and co-chair of continuing legal education committee for the Attorneys Information Exchange Group (the largest organization of plaintiffs automotive product liability attorneys in the U.S.); has served on plaintiffs’ committees in national mass tort litigation; is a graduate of Gerry Spence’s Trial Lawyer’s College; is a graduate of the American Association for Justice’s Leadership Academy; is the special liaison to the National Highway Traffic Safety Administration on behalf of both American Association for Justice’s Products Liability Section and the Attorneys Information Exchange Group; regularly speaks at international, national, statewide, and local continuing legal education courses on topics ranging from federal jurisdiction to products liability; is the 2017 Men’s 40-44, –69k Texas Weightlifting Champion; and has a 3:45 marathon time.

Julian is a U.S. Coast Guard licensed captain, is on the board of directors of the USA Weightlifting Foundation (the foundation for United States’ Olympic weightlifting athletes) the board of directors of McAllen Educational Foundation (the foundation for the McAllen Independent School District), and the board of directors of the Texas International Fishing Tournament (the largest fishing tournament in the State of Texas). In his free time, Julian loves spending time with his number one legal assistant, his daughter, Averri; and is an avid outdoorsman, rancher, photographer, snow skier, and tarpon fly-fishing angler.

For more information on Julian C. Gomez visit his website at https://www.jcglf.com/

32 – Jim Adler – Building a Firm on Reputation

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In this episode of Trial Lawyer Nation, Michael Cowen sits down with prominent Texas attorney, Jim Adler, AKA “The Texas Hammer,” for a discussion on building a law practice on a solid reputation.

Running an efficient law firm that has allowed him the ability to spend quality time with his large family (4 kids and 9 grandkids) didn’t happen overnight. Having started his practice doing everything by himself, learning to delegate and understanding the business and marketing side of running a firm are two areas where Adler has focused on the most to build the successful law firm he has today.

Adler recalls back in “those days,” when he was starting out, thinking that it would have been ridiculous to believe he would ever make $100,000. When he started, he was struggling to support his family and manage to do everything himself. He initially started advertising in the “green sheets” and got a little business. But it was when he started using a company called “Lawyers Marketing Services,” that he saw more success. He was told to “try it, you’ll like it,” and went into TV advertising which quickly had his phone ringing off the hook. Of course, it didn’t come without its fair share of social pressures not to advertise to the public back then, due to the stigma that other attorneys attached to the tactic. Adler has also found himself bearing the brunt of parodies on TV, even being referenced on Beavis & Butthead as “Joe Adler.” To which Michael points out, “you know you’ve made it when a national tv show is referencing you.”

Now going on his 5th generation of TV viewers, The Texas Hammer has found himself up against finding the attention of younger people who don’t want to pay for TV, AKA “cord cutters.” These are the individuals who are watching entertainment on their Slingbox, Roku, PlayStation, Netflix, and YouTube, which makes it especially hard to reach them. People don’t have “TV” anymore, so you have to find them elsewhere, which is why Adler has a saying in his firm, “if we’re not changing, we’re dying.” It is this mindset and desire to continue to learn and adapt (more on that later in the episode), which continues to keep his name and brand so strong.

The conversation then turns to when Adler became partners with a well-known U.S. District Judge, Robert O’Connor, who wanted to get back into practice. Judge O’Connor knew that Adler was wasting his time doing divorces, bankruptcy, and real estate and this was “the age of the specialization.” Taking that advice and focusing on personal injury cases has grown his firm to a staggering 30 attorneys and roughly 300 staff! Michael and Adler both agree that having so many people working for the firm is a lot of moving parts. But as Michael points out, it can be “a lot harder to run a business than to be a lawyer.”

Adler goes on to describe the way his firm has created a departmentalized system to take care of clients every step of the way. His intake department has specialists that only take new client calls and are separated from an operator who accepts all calls. His case management department with case managers who are assigned to each case and are supervised by a lawyer essentially works like a mini law practice within his law firm. The packaging department with specialists in preparing settlements and gathering all the hospital records, are all just the tip of the iceberg when you look at the organization he’s built.

In fact, evolution has been long and everchanging with the times. Adler recalls how all of these departments work well, but he received feedback that clients hated being passed around. Since then he has utilized his case managers to tee up the transition better and give the client a clear sense of what each step in their case is going to be. He goes on to describe their closing department, as well as their administrative departments and accounting departments, a strong litigation department, and an internet department, which ties into the firm’s marketing efforts. Over time, the evolution from having one secretary and an assistant, to set up all the different departments, developed through the use of statistics and formulas. From assessing how many cases a case manager could handle, to how many calls can an intake person handle, to how many cases can a lawyer try and/or settle, all of his operations were fine-tuned through statistical analysis. Adler describes himself to be a big believer in customer service and tries to promote their “service marketing” agenda to everyone throughout the firm in order to provide “over the top service” to their clients. He points out that if a lawyer does a good job for a client, he or she will likely be referred, 7 new people. Whereas the “bad-mouthers” are likely to tell 100 people if they didn’t have a good experience, regardless of the end result of their case.

Michael becomes curious about whether Adler had to figure these things out on his own or if he brought in any kind of consultants. Adler shares how he has read tons of books on business, such as The CEO Nextdoor by Elena L. Botelho and Kim R. Powell, Good to Great by Jim Collins, FOCUS by Daniel Goleman, as well as many other business publications like The Wallstreet Journal and Forbes Magazine. Thinking back to law school, Adler also recalls that they teach you how to be a good lawyer, but they don’t teach you how to become a good business owner. Adler has learned a lot from talking to people who were trying to sell him something, talking to other lawyers about how they do things, and going to TTLA meetings. Michael points out his own evolution from the mentality of being “a great lawyer and people should just line up at our firm’s door” to opening his mind to see other successful practices like Adler’s, and how they keep clients happy and run their firm in general. He also notes that although he doesn’t do TV advertising, he still spends hundreds of thousands of dollars on marketing to his referral partners.

Both Adler and Michael reflect on the importance of treating people with respect and dignity, even down to the importance of returning a phone call. The 45 seconds you take to let someone know you received their call and you are looking into their question or concern, can have a dramatic impact on the attorney/client relationship, even if just to tell them that you are in trial and will get back to them as soon as possible. Adler also goes a step further to ask for referrals when a case concludes and to remind their clients of all the different cases they handle.

The conversation certainly would have been remiss if Michael hadn’t brought up the obvious question – How did you come up with the name “The Texas Hammer?” Adler explains that it was Hayden Bramleigh, from the lawyer marketing service, who first suggested to him that he needed a trademark, similar to how every big brand has a trademark. Moreover, “The Texas Hammer” went through some evolution of its own through various focus groups and seeing how people around the country responded to the name being associated with other lawyers in different states. Admittedly, although some people might not know Adler’s name, they can still associate him with “The Texas Hammer” which is still an effective marketing tactic for him. Adler also points out that it’s been a long road, fighting battles with others who don’t agree with legal advertising, which oddly enough, he points out, tend to be other lawyers and not the end consumer.

The conversation with Adler goes on to talk about his strategies on developing lawyers in his firm, the tests they give to new lawyers joining their firm, transparency in reporting to the firm on settlements and new cases, professional training they’ve developed, the resources they use for case management, getting over the fear of public speaking, and so much more. The organization that Adler has built over the years is nothing less than astounding and we are so appreciative of the time he spent with us on this episode.

 

BACKGROUND ON JIM ADLER

Famously known as “The Texas Hammer,” injury lawyer Jim Adler has been hammering for victims for over 40 years, championing “the little guy” against big corporations and big insurance companies which would deny their legal rights.

That mission is why he launched his own law firm in 1973 with a one-man office in downtown Houston. Today, Jim Adler & Associates has offices in Houston’s Uptown/Galleria area, Channelview, Dallas, and San Antonio, with two dozen attorneys and more than 250 legal support staff. They share Jim Adler’s mission of helping injured Texans get the money they deserve from those who were at fault.

 

Family Man, Giving Back

You may know Jim Adler only from his media appearances and tough-talking TV ads. But he’s more than that. He’s also a family man who loves children and devotes much time and his firm’s resources to children’s charity causes.

In 2009, former Houston Mayor Bill White appointed Jim Adler to the Board of Directors of the Joint City/County Commission on Children, recognizing his lifelong devotion to helping children.

“I believe we all should give back to our communities,” said Adler, a Dallas native who speaks fluent Spanish. “I believe in helping people and doing good works.”

In fact, unlike his fierce TV image, Jim Adler is “a people person. I enjoy being around people from all walks of life. I love the joy of life – of just being alive.”

He’s also even more active than his busy legal work suggests.

“I love to sweat,” says the avid tennis player, snow skier, jogger and golfer. “I love sports of all kinds, and I work out five or six days a week — 30 minutes of cardio and 30 minutes of weightlifting. I’m also really big on nutrition and watching what I eat.”

Boosted by this commitment to health, he has no plans to retire — even now that son Bill Adler has joined the firm as an attorney.

 

Son at His Side

“Having my son at my side at the firm is the best thing that’s ever happened to me,” Jim Adler says. “He’ll ensure that all the work I’ve put in over the years and the family’s tradition of serving underdogs will continue.”

That family includes Jim Adler’s wife of 38 years, their four children and their five grandchildren.

Bill Adler was raised in Houston, but Jim Adler was raised in Dallas. He went to Austin to earn his undergraduate degree from the University of Texas, followed by his law degree from the UT School of Law.

He then served in the U.S. Army and U.S. Navy and was appointed a judge for the Office of Civilian Health and Medical Programs United Services (OCHAMPUS), adjudicating health and medical disputes for Army, Navy, Air Force, and Marine personnel. He then launched his law practice in Houston, home of his principal office today.

Jim Adler was admitted to practice law by the Supreme Court of Texas and is licensed to practice in the U.S. Courts of Appeal for the Fifth Circuit and U.S. District Courts for the Southern, Eastern, Northern and Western Districts of Texas.

He is a member of the State Bar of Texas, Houston Bar Association, Texas Bar Foundation, Dallas Trial Lawyers Association, Dallas Bar Association, American Bar Association, and American Trial Lawyers Association.

He’s also a director of the Texas Trial Lawyers Association and the Houston Trial Lawyers Association.

As a passionate advocate for injury victims, Jim Adler has handled lawsuits involving auto accidents, trucking accidents, offshore accidents, Jones Act cases, refinery accidents, construction injuries, burn injuries, brain injuries, on-the-job accidents, slip-and-fall cases, railroad accidents, electrical accidents and many other types of personal injury.

Getting payments for victims can be a battle. But Jim Adler became a lawyer to fight those battles.

“I always had a desire to help underdogs, the little guy, against big corporations and big insurance companies, and to level the playing field for accident victims,” he says.

 

Charitable Works

Jim Adler’s good works also include many charitable causes. He’s contributed to the American Cancer Society, Armed Forces Relief Trust, Association for Community Television, Alzheimer’s Disease & Related Disorders, Arthritis Foundation, American Heart Association, American Health Assistance Foundation, Special Olympics, Child Advocates of Fort Bend County, The Center for Hearing & Speech, Covenant House, Easter Seals Society and Galena Park Choir Boosters.

Still more of his causes include the Habitat for Humanity, Juvenile Diabetes Research Foundation, Federation of Greater Houston, Guild for the Blind, Leukemia & Lymphoma Society, March of Dimes, MD Anderson Cancer Center, Multiple Sclerosis Society, Primera Rosa De Saron, Susan G. Komen Breast Cancer Foundation, St. Jude Children’s Research Hospital, Texas Bar Foundation, Texas Children’s Hospital, US Olympic Committee, University of Texas Law School Foundation and UTMB Burn Care Research.

“I wish there were more hours in the day,” says Jim Adler. “I always want to do more.”

“Basically I believe in doing good works. Seeing families whose child was injured by an 18-wheeler or a defective drug puts me in a fighting mode. My good works then are about helping them recover financially. Those good works are my life’s mission.”

Thus, after decades of fighting for justice, Jim Adler is still on the case, helping those who need it the most. As thousands of injured Texans have learned when he fought for their legal rights, there’s only one “Texas Hammer.”

31 – Malorie Peacock – Proven Techniques for Proving Damages

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In this Table Talk episode of Trial Lawyer Nation, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Malorie Peacock, to answer the questions of our listeners. This show focuses on how to prove your client’s harms and losses at trial.

The first listener question is regarding the idea of whether 3X the medical bills is typically what you use to determine damages or does that only apply in certain cases? Michael recalls being taught the 3X “rule of thumb” back when he was first starting as a trial lawyer, but since then, no longer does for several reasons. First and foremost, times have changed along with insurance company practices. If an insurance company or defense attorney does start to talk to you about 3X medical bills, it’s likely because your case is worth a lot more than that. Instead, Michael focuses on what a jury might do when they look at each element of damage (pain, mental anguish, impairment, or whatever the measure of damage is in a particular state) individually and determine what they feel compelled to put in each blank. That, paired with what Michael calls “piss off factors” based on things the defense might do to compel a juror to give full justice for, becomes a number he’d like to keep as high as possible. Of course, he also takes into account whether his client is for some reason not likable or the defense is super likable, which can also affect the jury’s motivation in an adverse way for his case. Malorie also brings up another important note on the effects of jurors taking into consideration the percentage of fault even though they are instructed not to do so. To which Michael elaborates a little more on how to potentially work the messaging of that to the jury.

The next question by our listeners is how do you work up damages, especially in a smaller case that doesn’t warrant bringing in experts or producing lots of exhibits? Michael starts to answer this question by clarifying that experts generally do not help work up damages, but rather help to prove calculations on future medical expenses or a vocational loss. Having said that, with regard to the human and non-economic damages, he believes people who come in and talk about your client, how they were before, what they went through, and what they are like now can have the biggest impact. This also doesn’t cost any money toward the case. It does, however, take a lot of time in order to visit with these people to talk through what they know of the client before, during, and after, as well as collect photos or videos showing the client in a different state prior to suffering damages, etc. Michael discusses how this approach, even by taking the time to meet with people and learning your client’s story better, will make you more authentic in the courtroom which can have a profound impact on your case. Malorie sums this point up reminding us that all of our clients are more than just their injuries.

The next question they explore is regarding a wrongful death case without economic damages, which Malorie takes the reins on and starts with conveying just how hard it is to put a number on life when no amount of money will ever replace someone’s loved one. She goes on to elaborate that although you can do focus groups, they are not truly predictive. It will always boil down to the 12 jurors you get on any specific day in court who will ultimately put that number on a case. Michael adds that liability is what really tends to drive the number in wrongful death cases and it sometimes becomes very hard to have a conversation with the surviving family member(s) on the difference in the value of life versus the value of a case. He also shares how going to trial in a death case is extremely tough for the family as they relive one of the most painful events in their lives, which places a real responsibility on us as lawyers to make sure we are doing the right thing. Whether that means turning down an offer that is not sufficient to go to trial to fight for more and making an informed choice while understanding upfront the process and pain that will likely come with going through the details all over again. Malorie also describes the importance of knowing your client (a common theme throughout this episode) and understanding their goals, hopes, and struggles for their future to be able to help guide them through the conversation about money.

Proving grief is another topic Michael and Malorie explore with the belief from some jurors that everyone dies at some point. They both agree that there is a definite difference between dying when it’s time and dying when it’s not your time because of a tragic incident. Michael also points out the balancing act that occurs when you don’t want to “torture” your client and make them cry by bringing up all the pain and suffering they encounter now that their loved one is no longer here vs. focusing on the hopes that were and the plans for the future that have now changed because of the actions of someone else. He also points out that this is a good time to utilize experts like grief counselors and let them talk about the pain and suffering your client is, and will, experience due to the loss as well as the grieving process and the natural cycle of grieving to help paint an appropriate picture for the jury. They also give several other examples of ways to express the pain and loss without having to pull tears out of the surviving family members directly.

Michael and Malorie continue their abundance mentality by sharing so much great information in this episode on topics like when to submit and when not to submit a medical bill toward damages; avoiding the status quo and navigating a case to motivate a jury to give your client the justice they deserve; where do your client’s harms and losses fit into the greater story of the trial; an ideal “3 act” trial story through the juror’s eyes; how not to present your client’s harms and losses in a vacuum; how to get your client’s actual story (hint – it’s not what you might think); tips on utilizing psychodramatic methods; expediting the process of spending time with your client to understand their story; how Pareto’s Law can be applied to your docket; and so much more.

These Table Talk episodes could not happen without the interaction and questions that are submitted by our listeners. We are eternally grateful for and encourage you to continue to send us your thoughts, ideas, and questions as we love sharing our experiences with all of you.

30 – Mark Kosieradzki – Galvanizing Depositions

Mark Kosieradzki – Galvanizing Depositions

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In this episode of Trial Lawyer Nation, Michael Cowen sits down with well-known attorney, author of 30(b)(6) Deposing Corporations, Organizations & the Government  (TLN listeners can use “30B619” for an exclusive discount) and Deposition Obstruction: Breaking Through, and long-time presenter at countless legal events, Mark Kosieradzki. This is the best legal podcast for new lawyers.

Mark recalls growing up with parents who were scrappy, rightfully so given their startling history, who instilled in him to stand up for principles, ultimately leading him down the path of becoming a trial lawyer. He points out that many go into the field with a “win at all costs” type mentality, but his father always told him that “if you cheat to win, you really didn’t win,” which he continues to carry with him throughout his successful career in law today.

Mark describes one of the most successful tools he has learned to use in the courtroom are the rules themselves. He finds it to be a lot less stressful when you use the rules to get to the truth and if you play by the rules, you can force the other side to play by them too, which most times is not to their advantage. When Michael asks him how he might know if the opposing side is hiding something from you or not telling the truth, Mark very candidly replies that he starts with the premise that they are, and that trial lawyers want to tell the jury a story whereas a litigator wants to hide evidence. He goes on to impart that when they say they are going to give you “everything,” it’s really more like code for saying we’ll give you everything that doesn’t hurt their case.

Mark shares his evolution of new techniques regarding how he approaches depositions. He starts with a lot of case analysis, storyboarding, puts all his information in “buckets,” and then looks at what he’s trying to accomplish. With that, he starts with the assumption that one person could provide all the information, then structures an outline of what this one person could tell him and works at it to identify what documents are being electronically stored. Then he creates a request for production but doesn’t serve it, knowing there will be immediate objections. Next, he creates a 30(b)(6) designee deposition with a schedule of documents in it but doesn’t request the documents. We’d like someone who can provide all known documents in the organization that exist in this category, Mark continues. Where are they located, how are they organized, and most importantly, what are the methods available for searching? Without having requested anything, we are establishing the most effective and efficient way to request the electronic information, while also preempted all the boilerplate objections before we ask for them. Michael wonders about getting any push back regarding doing discovery on discovery to which Mark explains there is no discovery on discovery because you haven’t asked for the documents yet. Which is brilliant!

Michael asks how Mark structures his life to where he has time to storyboard, plot out cases, take depositions, and then craft his cases. The simple answer, Mark replies, is to just say “NO” to cases, continuing to say that his firm currently turns down 6-8 cases a day and work with small caseloads. Mark remembers starting out as a volume lawyer with 250-300 cases and works with the mentality of getting as many cases as you can and then you settle them based on getting each case’s fixed value with as little work as possible. That type of nonsense, however, assumes that the other side determines the value of each case. He’s also found that by spending more time up front on a case, their hourly value has gone up significantly because they take the time to get the evidence and prove each case. Michael relates his own firm where he’s found the fewer cases each of his lawyers have, the more revenue each lawyer generates. Settlements have gone up, the time from intake to the settlement has gone down, and the personal satisfaction of being able to be a craftsman of doing good for clients is significantly rewarding. It wasn’t until he got rid of the fear in his own mind that if you tell a referring attorney “no” on a case, they will disappear forever. When, in fact, the more time you can spend on the right type of case for yourself, the better the outcomes will be, and the more people will respect you and your practice. It also allows you more time to communicate with your clients which allows them to trust you more by knowing you have their best interests at heart.

The conversation shifts to talk about storyboarding cases. Mark describes the process as for where you lay out what your story to the jury ultimately will be and how you will focus the jury to consider the information which is important in your case. Mark points out that there are many great resources like Cusimano, Wenner, Rick Friedman, Carl Bettinger, and David Ball who have different methods of storyboarding cases, all of which are great, but he doesn’t subscribe to just one method. He explains how he tries to learn ALL the different methods because this is not a checkbox profession, but rather one requiring you to stay nimble in your approach in order to be able to counteract whatever gets thrown at you from the other side. In general, he starts first with a chronological account of the case from beginning to end, which admittedly isn’t always the most persuasive one. Then he begins to craft what he would like the jury to focus on first which in most cases is the decision making that has taken place by the wrongdoer. Mark shares a story using the information availability method that really drives the point home on the importance of sequencing details. Then to take things even a step further, they begin to formulate through whose eyes will they tell their story which is equally important given that there are hundreds of perspectives a story can be told…just ask Stephen Spielberg.

Michael and Mark round out this episode hitting on hot button issues including how to structure your questions to establish if the person being deposed is prepared, what you are really trying to get out of a deposition, and how to prove your oppositions unpreparedness. Mark also talks through a real-life example of how all these different techniques were used in a past case of his: Boswell v. Sherman County. The details of which are simply astounding and need to be heard for yourself. They wrap up with a brief discussion on what the future holds for Mark and even sneak in a little surprise at the end.

 

BACKGROUND ON MARK KOSIERADZKI

Mark Kosieradzki is a trial lawyer from Minneapolis, MN.  His 40-year career has spanned a vast array of cases throughout the United States.  Mark’s landmark civil right case on behalf of an incarcerated woman resulted in the application of section 1983 protections to detainees. His work on sexual abuse was featured in a CNN series on Rape in Nursing Homes.

http://www.cnn.com/interactive/2017/02/health/nursing-home-sex-abuse-investigation/

The Minneapolis Star Tribune has described him as “one of the nation’s most feared elder abuse litigators.” http://www.startribune.com/meet-the-minnesota-lawyer-taking-on-the-senior-care-industry/450626193/

He is recognized in the “Best Lawyers in America”.  He is certified by the National Board of Trial Advocacy as a Civil Trial Specialist.

Mark is recognized as one of the country’s leading authorities on deposition technique, strategy, and law.  He is the author of 30(B)(6): Deposing Corporations, Organizations & the Government, published by Trial Guides. His book Deposition Obstruction: Breaking Through has been described as the hornbook for dealing with deposition obstruction.

Mark has joined trial teams throughout the United States in a wide variety of wrongful death and catastrophic injury cases, including malpractice, bad faith, construction injuries, nursing home abuse, interstate trucking accidents, and products liability.

When Mark turned 50, he had a midlife crisis and started playing the blues harmonica. At 63 he took up salsa dancing in Havana.

29 – Keith Mitnik – Thoughtful Prep for Winning Cases

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In this episode of Trial Lawyer Nation, Michael Cowen sits down with renowned attorney, host of the Mitnik’s Monthly Brushstrokes podcast, and author of Don’t Eat the Bruises – How to Foil Their Plans to Spoil Your Case published by Trial Guides [TLN users can use discount code “MITNIK19” to purchase the book]. With a $90M verdict, ten 8-figure verdicts, and a ton of 7-figure verdicts under his belt, Keith’s vast knowledge of trying civil court cases is truly extraordinary, to say the least.

Michael hits the rewind button right up front to ask Keith how he learned to become a trial lawyer. Keith recalls how he knew from a very early age that he wanted to become a lawyer, but always assumed he would become a criminal lawyer. It wasn’t until he asked a professor of his about connecting with some of the best lawyers in Orlando, which happened to be partners of his professor, that Keith learned about other opportunities outside of criminal law. His journey to becoming a civil trial lawyer was organic but swift, having interned for the lawyers his professor introduced him to, and trying his first case only 2 months after becoming licensed with the firm. Keith attributes much of his learning back then to being allowed to dig right in and learn from being “in the trenches” versus following someone around for 10 years before getting any “real” experience. It also helped that both his mentors were exceptional lawyers who came from opposite schools of thought, where one was the type to turn over every stone and simply outwork the other side, and the other was a brilliant free thinker in the courtroom. Michael also points out the myth that it is hard to get trial experience these days, whereas he suggests doing what he did in the beginning: get out there and tell other lawyers you’ll try their Allstate cases, and there are a lot out there to get experience from. It is also important to recognize there is value to taking a case to trial well beyond the verdict or settlement that is reached, especially for attorneys looking to get experience. Keith also advises young lawyers going into the courtroom that “it’s not about being pretty.” Jurors are not deciding about things based on how polished you are. They are deciding it based on your integrity, believability, honor, honesty, AND the preparation you did to get there. Not just in the hard work, but in the mental preparation of thinking through how it’s all going to play out and putting yourself in the best framework to maximize your chance of winning. And all of that happens outside of the bright lights and intimidation of the courtroom.

Michael notes that one of the things he’s taken away from Keith’s books, podcast, and other teachings, is that he really takes the time to think through his cases and the best way to present them, but asks Keith exactly how he structures his life in a way that allows him to have enough uninterrupted time and deep focus to do the case right. Keith says anyone can learn to be a good talker, but what separates you from the pack is the thinking that goes on before you enter the courtroom. Most of the good talkers he’s seen have just gotten good at repeating the same, somewhat canned “routine,” or have gotten good at memorizing those lines. Whereas the exceptional lawyers separate themselves from the others because of the mental process of planning before they ever walk in and recognizing that the other side is going to put up a good defense, as they always do. Essentially preparing to dismantle their defense and ideally leave them with nothing. Keith goes on to explain not only will that set you apart, but it’s also the fun part of trying a case because you can be working toward solving the problems of the case no matter where you are in litigation. Keith then reminds us of Sherlock Homes and how his greatest gifts were not his analytical strengths or his extraordinary knowledge of science, the arts, math and physics, but rather it was his ability to focus on a problem long enough to solve it. Ideas and practices like this are good reminders not to shortchange yourself on one of the true joys of trial work and will likely also be included in Keith’s upcoming book. Before leaving the topic, Keith talks about one other core principle that he uses on every contested point of a case, which he calls “the wisdom of the whys,” where he asks why are we right and why are they wrong? Of course, you need to be brutally honest with yourself with these points, so you can see the times when the opposition is right on a point here or there, and then be able to take things one step further for those points to ask, even though they are right on one point, how are we still right overall, which Keith refers to as the million dollar question.

The conversation shifts to talk about the methods used to persuade a jury to give full damages in a case, or as Keith refers to it, maximum justice. Keith uses a two-pronged approach for this, the first being that you as the attorney need to believe in the number you are fighting for, and the second being that you need to present the jury with a reasonable damage model. This approach of believing and validating to the jury why your client deserves the damages you are asking for, and in some cases may seem like an extremely high number at first, allows the jury to gain perspective on the numbers instead of smelling the fear of those who might be inclined to just pick a big number out of the air that even they don’t understand or believe their client is deserving of. Keith also suggests if you can lay out a damages model that the jury can understand, even if they disagree with it, they can at least have the ability to discuss it in a format that makes sense instead of punishing you or your client for damages no one believes are just. To drive the point home even further, Keith describes the “pep talk” he’s given himself in the past about why he is trying this case in the first place and the thoughts he needs to be overcome, especially in the early years of a practice, in order to have the full and deserving confidence for what is being fought for in the courtroom. Truly inspiring and passionate words.

Keith and Michael are able to fit almost a full day’s worth of topics into this episode that every lawyer is likely to learn from including connecting with the jury through the power of analogy, tips and tactics for approaching voir dire to establish the ideal jury, the burden of proof, and the detailed strategy Keith uses to prepare for closing that gives him all the confidence in the world by design. Keith also is kind enough to offer an emailed version of a memo he drafted internally for his office regarding putting an end to the defense belittling the pain of your client just because you can’t see it. Michael had a terrific time talking with Keith and is excited to share this episode with everyone.

 

BACKGROUND ON KEITH MITNIK

 

Keith Mitnik is the author of Trial Guides’ bestselling book, DON’T EAT THE BRUISES:  How to Foil Their Plans to Spoil Your Case. https://www.trialguides.com/products/dont-eat-the-bruises

He is also known for his popular audio tape series “Winning at the Beginning” and for his monthly podcasts.

He is a frequent keynote speaker at seminars for trial lawyers across America.

Keith is Senior Trial Counsel for Morgan & Morgan. In that role, he is in trial almost every month, often times 2 or 3 times a month, trying everything from suits against cigarette companies, medical malpractice, and product cases to car crashes and premises cases.

His list of verdicts is staggering.

He has been a commentator on many national television broadcasts and has been interviewed by Mike Wallace on 60 Minutes.

Keith is recognized for creating and teaching systems that simply work – for any lawyer, in any case.

Lawyers all over the country attribute significant verdicts to his methods.

 

TRIAL GUIDES

 

Trial Lawyer Nation is a proud partner with Trial Guides, leader in continuing education for civil plaintiff and criminal defense trial lawyers, with books, DVDs, CLEs, live webinars & more.

Visit https://www.trialguides.com and use code “MITNIK19” at check out to receive 10% off Keith Mitnik’s products. This Trial Lawyer Nation discount includes “Don’t Eat the Bruises: How to Foil Their Plans to Spoil Your Case” and “Winning at the Beginning: The Untapped Power of Voir Dire, Opening, and Beyond.”

Discount expires on August 31st, 2019.

 

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