Episode

109 – Malorie Peacock – Practical Procedures: Creation, Education & Implementation

On this episode of the Trial Lawyer Nation podcast, Michael is joined once again by his partner Malorie Peacock to discuss their firm’s procedures and how they implemented them. They’ll cover their firm’s journey with procedures, what to create procedures on, how to create, implement, and train on your procedures, how to achieve buy-in, and Patrick Lencioni’s Working Genius Model.

Michael and Malorie begin the episode with a look at their firm’s journey with procedures and why they felt the need to share it on the podcast. Michael shares that he drew inspiration from the book “The E-Myth Revisited” by Michael Gerber, which asserts that every business should be run like a McDonalds, and everything that can be systematized, should be. Having systems and training (and re-training) on them serves to empower your employees, ensures everyone is doing things the way you want them done, and creates a safety net so if someone leaves the firm, someone else can step in and take over where that employee left off.

Malorie then asks Michael a follow-up question- What kinds of things should you have procedures on, and what kinds of things should be left to the discretion of the person doing the job? Michaels answers simply that you need to be realistic. While he would love having a procedure for every little task, there isn’t’ enough time in the day and you need to prioritize 1-3 things that what will “give you the best bang for the buck.” Once you implement those 1-3 procedures, you can move on to a different 1-3.

If you’re feeling overwhelmed at the thought of having to practice law, run a business, and write and implement all these procedures, Michael has some good news for you- it doesn’t all have to be done by you. He’s learned that hiring and delegating things like creating, implementing, and training on new procedures to someone he trusts in his office frees him up to do other, more pressing items. Malorie agrees and adds that this is WHY you have these systems in the first place. It allows the owner to be able to take a step back and trust that things still get done the way he or she wants.

Malorie then asks Michael to share an interesting statistic that they discussed over coffee- that only 5% of employees can just figure new things out themselves. The other 95% need to be thoroughly trained and reminded continuously on how to do things the way you want. Your business systems should be designed for the 95%, NOT the 5%. While it can be frustrating to constantly remind your team of how you want things done, Malorie explains how it’s absolutely necessary to do, and if you go into it with the right mindset it takes a lot of the frustration out of it.

Regarding how detailed your procedures need to be, Michael says it really depends on what the job is. The procedure for someone in a filing or scanning role, a typically lower skilled job, will have step-by-step instructions; but the procedure for lawyers to set depos by a certain time will simply have guidelines to follow. Malorie adds that their firm procedures’ level of detail has fluctuated quite a bit, and the key to success is adapting to your firm’s current needs.

Malorie and Michael then take a deeper look at one of their procedures, for each lit team to have a monthly File Review on each case at the firm. They discuss why they have them and how they benefit Michael, then move on to how they hold teams accountable and achieve buy-in.

Achieving buy-in is the tough part. Looking at the big picture, Michael shares his firm’s “mantra” which they recite at the beginning of each meeting. If a team member buys into this mantra, he will do everything in his power to develop and support them. It’s something they look for in the hiring process and are up front on from the beginning, but if someone doesn’t want to buy into this mantra, it doesn’t mean they’re a bad lawyer, but his firm isn’t the right place for them.

Malorie then digs into the micro-level buy-in for each procedure, where they encourage feedback and brainstorm how to make the procedure better. They’ll get some great suggestions from their team, which they sometimes implement into the final procedure. They also make sure to explain the “why” behind each procedure, to make it clear they’re not trying to micro-manage the team or create unnecessary work.

After discussing some things they’ve learned from implementing procedures over the years, Michael brings up an upcoming Patrick Lencioni book on the concept of “The Working Genius Model” with the acronym “WIDGET”- Wonder, Idea, Discernment, Galvanizing, Enablement, and Tenacity. They elaborate on each of these working genius types, share the ones they each have and don’t have, and explain how they filled their team with the other types. The result has been a trusting, high-performing, complete team.

Michael and Malorie end the episode by encouraging listeners to work on building their ideal team and to start creating procedures for their firms. The result will be more joy and a better-performing law firm.

This episode also covers how to create procedures that leave room for creative lawyering, when to get rid of ineffective procedures, why perfection is the enemy of good work, how to incorporate Patrick Lencioni’s Working Genius Model into your firm, and so much more.

108 – Jessica Brylo – Trial Dynamics: Tipping the Scales in Your Favor

On this episode of the Trial Lawyer Nation podcast, Michael sits down with Jessica Brylo, owner and lead consultant at Trial Dynamics. They discuss Jessica’s path to success, identifying juror attitudes, jury decision-making, case framing, focus groups, and much more.

Michael begins the episode by asking Jessica about her background and what got her into jury consulting. Jessica shares how she went to law school at Duke, where she got in contact with David Ball. She began attending focus groups and learning from David, and it became clear that jury research and consulting was her calling.

Michael then asks her to share some wisdom she’s learned along the way regarding juror attitudes. Jessica starts by stating most jurors and juries do a good job and arrive at logical conclusions; the interesting part as a researcher is looking at how they got there (Hint: It’s rarely how the lawyer thought they would). This is because jurors make decisions based on their own past experiences, and much of their decision-making process is unconscious.

Jessica continues on this line of thought by explaining how the different facts you hear every day are all brought into your brain and “filtered through your life experiences.” If this new fact fits within those experiences, you will likely accept it. If it does not fit within those experiences or goes against your beliefs, you’ll either change the fact in your mind or throw it out altogether. The key is to build your story around what those pre-existing beliefs are and fit it within that framework. And since every fact you hear is filtered through previously learned facts, Jessica emphasizes that messing up during voir dire and opening statement is extremely hard to come back from.

“When [jurors] hear a fact, they don’t just hear the fact in isolation.” – Jessica Brylo

Michael and Jessica continue to discuss Jessica’s experience and insights into juror decision making, including how to keep a positive atmosphere while finding what jurors you need to strike, what you can do to prepare a case of any value, and how to identify potential leaders on a jury panel.

The conversation then shifts to the practice of Case Framing, something Jessica specializes in. She defines it simply as the way in which you portray a case, then elaborates on the different ways to tell this story in a persuasive way, starting with not focusing on the plaintiff. Instead, Jessica says you should focus on the wrong the defendant did; better yet what the company or industry as a whole did, and the potential ramifications of that wrongdoing.

Additionally, Jessica explains how you need to keep your focus on the facts of YOUR case and not fall prey to the “red herrings” the defense throws at you. While you need to address what happened in the crash, you should remind the jurors that the point is irrelevant to the case as a whole. When the defense tries to take the crash out of context, it’s your job to put it back into context.

“You can’t play a defensive game all the time. You need to focus on your best facts, focus on where you need the jurors to be.” – Jessica Brylo

Michael then asks Jessica a somewhat controversial question- what is the main purpose of jury selection? She acknowledges the different opinions of Nick Rowley and other prominent trial lawyers, but says for her it’s:

  1. Reveal bad jurors.
  2. Form a connection with the jurors.

Jessica then shares her insightful strategies for finding out who the bad jurors are, then how she connects with the jurors.

While Jessica recognizes the differing opinions surrounding jury selection, there are certain mistakes that just should not be made. Common ones she sees are the lawyer talking too much about themselves, asking jurors if they “have a problem” with things or if they “can be fair” about things, and asking the jurors’ opinion about political topics like Trump or the COVID response.

“They’re trying to do the right thing, but it’s just not the right phrasing and words to do it.” – Jessica Brylo

Michael and Jessica wrap up the episode by discussing focus groups. In an ideal world, you could hire a consultant to run all your focus groups but given budget constraints and varying case values that’s just not realistic. When running your own focus group, Jessica recommends doing your best to find a truly representative jury pool, which can be harder than you’d think. She also cautions against some common mistakes she sees in focus groups, including pushing your own stuff too much and not focusing on the negative aspects of your case. They finish up on what to do with the valuable, though negative, information you receive at the focus group.

Jessica wrote and released a free e-book for plaintiff lawyers, detailing the do’s and don’ts of running your own focus group. If you’re interested in this free e-book, email jessica@trialdynamics.net and request a copy. If you’re interested in working with Jessica Brylo, visit her website at www.trialdynamics.net.

This episode also covers the Arizona Jury Project, why word choice is so important, how to use the defense’s behavior throughout the lawsuit against them with the jury, and so much more.

 

Guest Bio:

Jessica Brylo, J.D., M.A. is the owner and lead consultant at Trial Dynamics. She graduated cum laude from Duke Law School in 2007 where she received her J.D. and Masters in Psychology. While there, she was trained by one of the nation’s leading trial consultants, David Ball, Ph.D. She was given the privilege held by only a handful of people in the country of being able to study video of real juries deliberating from the Arizona Project. While at Duke, she spent three years studying juries, visiting courthouses, interviewing jurors, and interning with Dr. Ball. She trained in the art of editing opening statements and closing arguments to address the jurors’ unconscious minds, thus making cases stronger by creating jurors who fight for your client when they are in the deliberation room.

She founded Hoffman Brylo Consulting, now Trial Dynamics, in 2008, a full-service consulting firm specializing in plaintiff’s cases. Since then, she has expanded the firm to serve a wider range of cases nationally. She believes that no two cases are alike and that jurors respond to small nuances that make huge differences in verdicts. Consulting strategy techniques can reveal these subtleties and shed light on how to overcome hidden problems in the case, but only if conducted properly with attention to detail.

107 – Stefano Portigliatti – The Power of the Individual: Insights into Juror Psychology, Communication & Understanding

In this episode of the Trial Lawyer Nation podcast, Michael sits down with Stefano Portigliatti, a trial lawyer out of Jacksonville, Florida, who recently secured a $14.6 million verdict on a tough trucking case. Michael and Stefano discuss Stefano’s background, how he connects with jurors individually, and all the details of his recent verdict.

To begin the episode, Michael asks Stefano about his background and how he got to where he is today. Stefano shares how his family is Italian, and how he grew up in Brazil. He had dropped out of college, but after some life experiences “woke him up to his priorities,” he decided to go stay with his brother in Tampa, Florida, and finish school. The pair finished college, then decided to attend law school together, where Stefano was bit by the “personal injury bug” and found his calling.

His family runs multiple businesses out of Orlando, including a Human Behavioral Research Group. It was in this lab where Stefano studied human behavior, motivation, personality, and social studies through neurosciences. Before law school, he applied this to executive coaching for businesses, but quickly realized the implications on jury communication and connection.

Stefano then elaborates on his personality assessment tool, which goes to the root of what we care about and how we communicate. Some jurors care about the rules being broken, others empathize with the social consequences, and others want to plainly see the numbers.

After Michael asks him what he does to motivate different people, Stefano explains the two-axis that separate people into four different quadrants. The first axis is their level of assertiveness, defined as those who need to influence the environment in accordance with what they want, versus those who look to the environment for cues. The other axis is the individual’s responsiveness, broken into task/objective-oriented versus people-oriented. When you place both continuums together, you get four quadrants from which 70% of human behavior can be attributed.

Michael digs further into how Stefano assesses these tendencies in jury selection. He shares how he doesn’t ask jurors explicitly but instead looks for cues based on their answers to questions, such as their occupation and eagerness to participate in the process. Once he has this information, he tailors his presentation of the case to each individual juror and what they value.

“Communication is not what you say. It’s what people understand.” – Stefano Portigliatti

This technique requires the lawyer to “talk to the juror, NOT the jury.” Stefano argues that this is so important because, at the end of the day, they are all individuals who are forming their own opinions until they step into the deliberation room. He then shares some enlightening examples from his recent trucking case verdict, including questioning a defense witness on his engineering qualifications when he had an engineering student on the jury, the client discussing his relationship with God after the incident when most of the jury were devout Christians, and even questioning the defense’s tow truck driver before relying on a truck driver on the jury to use “common sense” in deliberations.

Michael then asks Stefano to give some background on what happened in this case. Stefano explains how his client was an 18-wheeler driver who experienced air loss in his chassis while on the road during a bout of rain. He was unable to get off the roadway and eventually came to a hill, where he got stuck. He put out triangles on the road, but only put them out to about 160 feet instead of the required 200 feet. He gets back in his cab to avoid the rain when another semi comes over the hill, swerves, and jackknifes into the client’s semi. A witness later testified that the defendant driver was looking down the entire time.

Stefano’s client was flung from the sleeper cab into the front of the cab, where he hit his head and was left with a bad neck injury. They later discovered he also suffered a brain injury in the crash.

Listening to this story, Michael notices some clear issues Stefano had to face, including blocking the lane of traffic on the roadway and that he should have inspected the vehicle before departing. But shockingly, the jury found Stefano’s client 0% liable for the wreck. Of course, Michael asks how Stefano was able to do this. In short, the answer is putting in a LOT of work.

Stefano began to work up this case by consulting with experts, including one on CMV safety, to figure out what happens when a chassis loses air. Then, he held a total of five focus groups just on liability. At each focus group, he was asked questions that he didn’t have answers to. By the end, he learned so much from each of these groups that he went from 70% liability on his client in the first focus group to just 20% liability in the last focus group. The key was accepting and owning the things his client didn’t do right while focusing on the inattention of the defendant driver.

Another interesting aspect of this case was that the client’s brain injury wasn’t diagnosed for over a year after the crash. Luckily for Stefano, while the diagnosis took a while, his client’s symptoms were well documented from the time of the crash. He experienced intense dizziness, vertigo, depression, nightmares, and issues with directions. When they did a specialized MRI on him, they found that he did in fact have a brain injury, which explained all these symptoms.

Stefano then explains how the human story added credibility to the medical story. He had lots of “before and after” witnesses, including family, friends, and co-workers. Each of these witnesses had a distinct reason for being there, which Stefano made sure to emphasize since the order of the trial was much different than he had anticipated.

Stefano’s client received $4.6 million for economic damages and a massive $10 million for human loss, so Michael’s next question is about how he was able to get so much for human loss. Stefano shares his highly effective “damages pie chart,” which he finds particularly useful in cases with high medical expenses in the past and future. He divided the pie into 6 slices, with only one of those being past and future medical bills. He then fills the rest of the slices with examples from the case, such as physical impairment and loss of quality of life. This chart resonated so well with the jury that they asked for it during deliberations.

To wrap up the episode, Stefano highlights two points that he thinks are the most significant of this trial; flexibility and credibility. Trials will never to exactly how you planned them, so being able to adapt and roll with the punches is key. He also put a lot of effort into credibility, opting to go for an understated opening statement to ensure he didn’t overstate by event 1%. This built trust with the jury, resulting in this incredible verdict for Stefano’s client.

This podcast episode also covers getting over the fear of the jury, detailed stories of how Stefano connected with each juror individually, how Stefano adapted to the defense’s delay of the trial, and so much more.

 

Guest Bio:

Stefano D. Portigliatti is a trial attorney specializing in commercial motor vehicle cases at Coker Law, PA in Jacksonville, FL.  He has represented clients in over a hundred trucking cases and helped obtain millions of dollars in verdicts and settlements. Stefano is among the first 20 attorneys in the United States to pass a rigorous exam on trucking laws and an intensive background check to prove that his practice is dedicated to litigating trucking crash cases. He was also one of the youngest attorneys to be included among Super Lawyer’s Rising Stars and the National Trial Lawyers’ Top 40 Under 40.

Stefano often presents on topics related to trial and trucking litigation. He is on the Board of Regents of the Academy of Truck Accident Attorneys. He is also the founder of truck.law™, which assists other plaintiffs’ attorneys handling trucking cases with forms, resources, and seminars available at www.truck.law.

Stefano was born in Sao Paulo, Brazil, to a hard-working Italian family. Before becoming a lawyer, he was engaged in diverse business ventures across multiple continents. Stefano is the Vice President of SOAR Global Institute – a laboratory that researches human behavior and development. Stefano speaks internationally in the areas of emotional intelligence, innovation, and human development. He is a certified master coach and trainer and has developed several courses and systems that apply psychology and behavioral analytics to management and trial strategies.

Stefano is a musician and likes to sail, golf, cook and travel with his wife, Brittany, and their two sons, Luca and Leonardo.

 

106 – Malorie Peacock – The Only Constant: Overcoming Change

In this episode of the Trial Lawyer Nation podcast, Michael sits down with his law partner Malorie Peacock for her first episode since coming back from maternity leave to have a fitting conversation about change. They’ll take a look at different types of changes, including personal, business, law, and intentional ones, and discuss how to embrace them instead of being overwhelmed by them.

Starting with personal change, Michael asks Malorie how she dealt with the change of not working during her 3-month maternity leave. She shares how at first, she was a zombie (which I’m sure all parents listening can relate to), but once she and her husband got into a routine, she found it hard not to check in on her cases. And while she enjoyed her leave, she’s happy to be back doing the job she loves again, and Michael is also glad to have her back.

Michael then shares his experience of taking over the housework while his wife stays in the guest house with Covid. He had a referring attorney call him when he was trying to help his wife and sons, but he had to ask the attorney to call back tomorrow. He was nervous the attorney would take his business somewhere else, but after their discussion the next morning he realized everything would be fine. Malorie poignantly shares that the fear and anxiety we have about change is usually worse than what actually happens.

Continuing with business change, Michael reflects on his law firm growing and the inevitable turnover that comes with growth. He’s found that no matter how much effort you put into making your law firm a good place to work, there are other factors that can cause people to leave. Malorie agrees, adding that it’s just not realistic to expect everyone at the firm to stay forever. And when someone does leave, even those you thought would be with you their entire career, having the right attitude is the key to moving forward effectively.

Michael continues this topic by mentioning the book “No B.S. Ruthless Management of Profits and People,” assuring listeners that the title makes it sound worse than it is. There’s a section of the book which discusses the employee-employer relationship, saying you need to be realistic about that relationship and how people see you. At the end of the day, this is just a job for them.  Malorie agrees and adds that psychologically, it’s a good thing if your employees expect to be treated well. It means they perceive themselves as people who work hard and are committed.

Michael then shares how he copes with drastic changes. He takes a 12-24 hour “mourning” period where he lets himself feel it and vents to someone trusted. After that’s done, his focus moves to how they can make it even better than it was before. Could the systems for that position be improved? Do you need to re-think how you structure the position completely? These are all questions you should be asking yourself for each employee turnover.

Moving on to changes in the law, Michael reflects on when he first became a lawyer, and they took the money out of workers’ compensation cases in the state of Texas. Then came the medical malpractice caps and other tort reform policies. Each time, there were lawyers who refused to change and faced serious financial struggles, and there were lawyers who got creative and found ways to adapt- sometimes resulting in them being better off than before the “bad” change. Malorie wholeheartedly agrees and adds that finding a group of lawyer friends to brainstorm with has been very helpful for her in these situations.

As Michael and Malorie begin to wrap up the episode, Michael praises Malorie for her positivity in the face of change and her ability to be creative and look for solutions. It’s something she partially credits to her natural personality, but she also makes a conscious effort to find something good about the change (even when it’s mostly bad) or take the time to think about all the good things in her life. It helps assure her that the world won’t end, and this positive outlook rubs off on those around her. Michael then shares his journey to having a positive outlook on change, and the two of them exchange a heartfelt moment of exchanges with their children that resonate with each of them.

The episode ends with a reminder to register for Cowen’s Big Rig Boot Camp as soon as possible. In-person seats are already full, but you can get on the waitlist or register virtually here! We’d love to see you there.

This episode also covers why “1” is the most dangerous number of anything, why you should avoid negative people, how to overcome some recent bad case law in Texas, and much more.

 

105 – Keith Mitnik – Deeper Cuts: Systems That Simply Work

In this episode of the Trial Lawyer Nation podcast, Michael sits down with legendary Morgan & Morgan trial lawyer, podcast host, and author, Keith Mitnik, for a second time. They discuss Keith’s recently released book, “Deeper Cuts: Systems That Simply Work from Winning Workups to Thumbs-Up Verdicts,” new voir dire techniques, and the importance of words.

Jumping right into the podcast episode, Michael asks Keith how he gets full damages on cases with no obvious villain. Keith shares a recent example where he framed everything around the statement, “It’s not about how much she’s going to get. It’s about what was taken, and what’s a fair value for what was lost.” He draws an insightful connection between our modern-day justice system and the “eye for an eye” justice system of the past. The “brutal” eye for an eye system was never about the punishment, but about recognizing fully what was taken from the person who was wronged. He’ll explain this concept to the jury, and the results are powerful.

Keith continues by explaining the evolution of his voir dire process over the years, including how and when he gets the jury to get a discussion going. He’s tried many methods throughout the years and shares their flaws, but feels very good about his current strategy, which he calls “The First Big 3.” He’ll set up voir dire with the story about full recognition, then start questioning the jury on the big 3 types of bias:

  1. Feelings against this type of lawsuit.

  2. Feelings against the non-economic part of pain and suffering.

  3. Feelings against large verdicts.

After asking the jury about these 3 items, he’ll share the idea that it’s not about how much was taken, but how much was lost, and ask how it felt when they heard that.

Continuing this line of thought, Keith adds another change he sometimes makes to his voir dire, which is asserting that the jury’s job is not to assess the income of your client – it’s about the value of his or her health, which is way more precious than income. These changes have made for a great dialogue between Keith and the jury.

Michael then asks Keith about something he loved in the book – having the client create a list of the “little things.” Keith explains how we often base damages around the big things that are important to the client – but especially with hobbies, those things are rarely important and are often unrelatable for the jury.

To assist with this process, Keith gives clients a small notepad and a homework assignment- to write down every little thing they notice has changed due to their injury. This includes things they continue to do but in a different way and things they do but now it hurts. Then, he’ll sit down with the client to choose a list of the best ones. By the time the client is deposed, the client is able to readily provide a laundry list of relatable examples of how the crash has changed their life, and the defense lawyer is highly motivated to settle the case.

This leads Keith to share a brief but heartfelt story of a recent trial where he decided to ask the jury in voir dire about race, and why he plans to do it again in the future. It’s a story sure to resonate with any trial lawyer hesitant to bring up a sensitive topic in voir dire.

If you follow Keith Mitnik, you know he’s a man of many words – a self-proclaimed “word nerd.” So Michael asks the next logical question – why do words matter, and how does he come up with the words he uses? Keith explains the process he uses to find the best anchor words, where he circles any words he feels might not be the best, then turns to one of his many trusty thesauruses to see what else is available (He recommends either Word Hippo for iPhone or Wordflex for iPad). He shares some real-life examples before explaining the difference between inert words and activator words:

     Inert Words – Ambiguous words with different meanings to different people.

Activator Words – Consistently activate a particular meaning and a feeling.

From there, a word can be either a positive or a negative activator word, meaning it can work in your favor or against you if you aren’t careful. Keith shares numerous examples of inert and activator words, and how he chooses them based on the person he’s addressing.

Moving away from “Deeper Cuts,” Michael asks Keith what his strategy is for going into a case that someone else worked up to try it. Keith highlights the obvious disadvantages as well as the not-so-obvious advantages of this – notedly that he’s able to experience the case “in one, overwhelming wave, just like it will with the jury.” It provides a truly fresh perspective. His one requirement is that he needs to spend time with the client before the trial begins, to connect with them in his heart.

He continues by sharing the different ways he’s split cases up with other lawyers before, and how it varies depending on the other lawyer’s experience and skillset – though as you probably know, he almost always takes the voir dire, opening, and closing.

Michael and Keith then wrap up the episode with a promise to have Keith return soon. In the meantime, you can purchase his books Deeper Cuts: Systems That Simply Work from Winning Workups to Thumbs-Up Verdicts and Don’t Eat the Bruises, listen to Keith’s own podcast “Mitnik’s Monthly Brushstrokes,” and even join his listserv. To join, email Keith at kmitnik@forthepeople.com and copy his assistant Mary Arnold at marnold@forthepeople.com asking to join. They’ll even send you the past editions if you ask!

This podcast episode also covers why it’s important to emphasize your client’s injuries were brought to them “unnaturally,” a story from a recent trial where Keith had to improvise with a client on the stand, how to combat a convincing defense expert, why Keith almost always does both voir dire and opening, and much more, including numerous stories of Keith’s real-life trial experiences.

 

Bio:

Keith Mitnik is the author of Trial Guides’ bestselling book, Don’t Eat the Bruises:  How to Foil Their Plans to Spoil Your Case.

He is also known for his popular audiotape 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, oftentimes 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.