Episode

70 – Malorie Peacock – The Method: Our 9-Step Process for Evaluating & Working Up A Case

In this Trial Lawyer Nation podcast, Michael Cowen sits down with his law partner Malorie Peacock for an exciting preview of his upcoming Trial Guides book on trucking law. They’ll cover Michael’s 9-step method for case evaluation and detail each of those steps, so you can start applying them to your own case evaluation process.

They jump right into this episode with Step 1- initial triage. Michael explains how he derived the term from battlefield medicine, where patients are triaged based on the severity of their injuries and care is prioritized for the patients who need it most. He explains how trial lawyers only have a finite amount of resources, and the decision to put work into a case or not will effect more than just that case. It also takes those resources away from other cases and your personal life.

Michael then shares an example of how he used to work on automotive product liability cases, but his firm has since moved away from them. He has recently rejected five of these cases, even though they were all worthy cases someone will make money from. He chose to do this because these cases don’t fit in with his current docket, and there are other lawyers who will take them and excel at them because they do suit their dockets. Michael even sends his referral attorney to these other lawyers when the referral attorney brings him a case that he knows they will excel on – something that used to terrify him, but he’s since learned it builds an even stronger relationship between him and the referral attorney.

Before moving on to the next step, Michael clarifies that “Initial Triage” is NOT making a final decision on whether or not to accept the case. This step is simply deciding whether you want to look further into the case. In fact, Malorie clarifies that a lawsuit is typically not even filed until about Step 7 in this process.

Step 2 of “The Method” is to gather all the initially available information on the case. This information varies dramatically depending on the type of case it is, but the main goal of this step is to determine a general idea of the liability stories and issues with the case. Michael also explains the importance throughout this process of continually evaluating the case and asking, “Knowing what I know today, is this a case I would take?” If the answer is ever no, consider dropping the case. They conclude this step by discussing a recent example Malorie had of a case where the client was a great person and genuinely deserving, but the facts they discovered during this process made it a case that did not work on her docket.

Step 3 is to identify and analyze all potential immediate causes. Michael explains this as a brainstorming exercise where you record every possible immediate cause of the crash, even the causes that seem unlikely but are possible (for example, a bee in the vehicle). You then divide these potential causes into columns of “winners” and “losers.” Winners are causes which, if proven, help you win the case. Losers are causes which, if proven, mean you lose the case (or need to neutralize them).

After identifying the winners and losers in the case, you move on to Step 4 – conducting a root cause analysis. Michael explains how this concept was first developed by Mr. Toyota, the founder of Toyota Motor Company. Mr. Toyota decided that instead of fixing things when they went wrong, he would try to find the reason these things were going wrong by asking the “5 Why’s.”

To apply this to a case, you take the “winners” discussed in Step 3 and keep asking “Why?” until you find your ultimate root cause. Michael then shares an example from a rear-end case where he took the winner of “the truck driver rear-ended my client” and found “the company did not take the time or effort to train the driver” to be the root cause of the crash. He continues this process for every “winner” and develops multiple theories before he decides which theory he is going to use.

Malorie then re-emphasizes the fact that in an ideal world, you will not have filed the lawsuit yet at this point. They both agree there are times you need to file the lawsuit early to avoid any destroying of evidence, but if possible you should wait.

They move on to Step 5 – drafting the jury instructions. Michael shares how he used to feel doing this so early on was silly, but has since realized it really helps him design the case because he knows what he needs to prove. Malorie adds that doing this also better prepares you for depositions because you know what questions you need to be asking. She also emphasizes to not only look at liability instructions but also damage instructions. This all boils down to, “What do you have to prove?”

The next step in “The Method” is Step 6 – finding rules and anchors. These are authoritative sources for the rules, answering the question “says who?” Michael explains that this is one of the reasons he loves doing trucking cases, because there are so many rules and publications to use as anchors. The more sources that say a rule the better, because defendants are left with two choices: to say they know the rule and broke it, or to say they disagree with all those sources and have their own rule. Michael and Malorie then discuss numerous examples from different types of cases, showing that this method can be used on much more than trucking cases.

Malorie then asks Michael to clarify what an “anchor” is for those who don’t know. He explains an anchor as what you are “anchoring” your rules to. This is an authoritative source or publication of the rule, such as the CDL Manual, a driving company’s textbook, a store’s rules, an OSHA rule, and more. He then concludes this section by explaining how to arm your expert with these anchors to get the most out of their testimony.

Step 7 is to formulate the discovery plan. This is also where you draft the complaint or petition and plead what you need to get the discovery. For example, if you believe the root cause is negligent training, you need information to prove they have a negligent training system. Then, you formulate the discovery plan based on that. Michael cautions strongly against asking another lawyer for their interrogatories before drafting your own. You need to formulate your own based on your theories to prove what you need to prove. You can then use a form to double check and make sure you didn’t miss anything. Michael and Malorie then agree on a fantastic practice tip which makes this process a lot easier and discuss the importance of brainstorming with colleagues.

As discussed earlier, now is the ideal time to file the lawsuit. Then, step 8 is to continually re-evaluate the case. Malorie highlights the need to do this throughout each of the steps as well and to keep notes on what you’ve done so far to avoid repeating any unnecessary work. Michael then explains how as new facts, research, depositions, and discovery emerges, your initial root cause might not be the best strategy anymore and that’s okay. Malorie echoes this statement and adds that too many lawyers are afraid to ask for what they really want in discovery, and more lawyers should be specific and ask for specific documents referenced in other documents.

The above steps were mostly completed before you have all of the information about the case, which Michael cites to further emphasize the point that re-evaluation is key. He then shares some techniques he’s developed at his firm to ensure this gets done by all of his lawyers.

Michael and Malorie conclude the episode with the final step in “The Method”- test the case. Michael explains how the method of which you test the case varies depending on the value of it and lists a number of unconventional methods to do this on a budget. He then lists the advantages and disadvantages of other more conventional methods, including in-person focus groups and online studies like John Campbell’s Empirical Jury. While no method is 100% accurate, they can give you a good idea of where you stand.

This podcast also covers why you should file a FOIA request immediately, how implementing “vulnerability-based trust” by Patrick Lencioni has helped his firm, how to disprove or neutralize “losers” in a case, how Michael applies parts of this method to his employees, why you should research rules BEFORE hiring an expert, why you need to be constantly re-evaluating your case, and so much more.

69 – David Koechner – Hit Your WHAMMY! The Power of Storytelling

In this Trial Lawyer Nation podcast, Michael Cowen and his Director of Marketing and Business Development Delisi Friday are joined by a VERY unique guest – David Koechner! David is a Hollywood actor and comedian who has starred in over 190 films and TV shows. He is best known for his roles as Todd Packer from “The Office” and Champ Kind from “Anchorman” and “Anchorman 2.” You may be wondering how David has any connection to attorneys, but we assure you this episode is full of timely advice for trial lawyers and is just what we need to hear right now. The trio will discuss David’s path to success and his advice for presenting to an audience (think: the jury) both in person and through a screen.

The episode begins with Michael briefly explaining the premise of this special episode. He explains how David comes from the TV/film world, and lawyers are now having to adjust from a live audience to an audience through Zoom. He shares how he’s excited to “learn how to communicate with other human beings through a screen,” or a jury spread out across a stadium or convention center for socially distant in-person trials.

Michael then asks David about his background and how he got into acting. David shares how he grew up in a small town in Missouri and began working for his father’s turkey coop manufacturing business at the age of 7, something he says instilled a strong work ethic in him from a young age. Being from a small town, David had no idea acting was a possibility for him having never met an actor himself. So, he decided to attend college with a political science major where he realized in his third year that “To be in politics, you either need to come from a political family, you’re incredibly wealthy, or you’re the smartest person in any room you walk into. I was none of those things.” He then dropped out of college and worked three jobs until he visited Chicago to attend a “Second City” performance and realized, “This is it. This is what I’m going to do.”

From that moment on, David spent the next 9 years on stage at least 4 nights a week, putting in his “10,000 hours” and citing the book Outliers by Malcolm Gladwell until he made it onto Saturday Night Live. Michael aptly compares this to up-and- coming trial lawyers – you have to try a lot of small cases before you get a shot at the big ones. They follow with an insightful discussion of the role of “luck” in being successful, which David believes is “really about hard work, isn’t it?”

They then move onto the topic on everybody’s mind right now – How do you effectively communicate with a jury when you’re either wearing a mask or limited to a screen? David recognizes the challenges of doing so, but emphasizes that the most important thing is always your connection to the story. He believes that is the compelling part of any presentation – whether in the courtroom or through a TV screen.

David continues with his recommendations for preparing to present while wearing a face mask. He suggests that lawyers preparing for an in-person trial in the COVID era start observing other people wearing face masks wherever they go. He explains how you can easily tell if someone is calm and purposeful, or agitated by looking at their body language.

Delisi then explains that Michael is going to be conducting voir dire in a football stadium in his upcoming trial. She asks David for advice on how to use your body in a venue that big to make everybody feel included. David suggests that Michael purposefully look at every single person he’s addressing, think about where his words will land, and pace around as he speaks so everyone feels included in the conversation. He also shares a very insightful strategy he uses when preparing for a show in a new venue, which will be helpful to every lawyer listening in future trials and other presentation preparation.

Michael then inquires as to how actors make the audience believe they’re reciting something for the first time when it’s actually been scripted and rehearsed countless times. David astutely replies – “I think that’s the point – rehearse.” He continues by explaining that if he has his lines completely down, he’s fully present and available because he’s not searching for his lines. This gives him (and every actor) the opportunity for “discovery” in a scene, where he is fully engaged with his scene partners and able to truly listen and react honestly to what they say. And it results in successful improv when he films with his comedy peers, like Will Ferrell and Steve Carell.

A brief discussion of the importance of letting silence sink in leads to a very interesting conversation about trusting your audience. Michael shares his experience of switching his mentality of “I need to say everything I have to say” to “It’s not about what I have to say, it’s about being heard,” and with that transition learning to trust the jury more and focus on telling the story, not on controlling the jury.

David then adds, “It’s about respect. You’re respecting the jury to make their own decisions. That will come across.” And while the difference between a crowd at a comedy show and a jury in a courtroom are apparent, the commonalities they share run deep. As Delisi so eloquently puts it, “at the end of the day you’re both storytellers.” David continues by explaining how if he hasn’t heard a laugh in 5 minutes, he knows he needs to change something about what he’s doing. While jurors don’t openly laugh or react, Michael insists “You know when you’re resonating with another human being. You feel it.”

They continue on this note to discuss coping with a loss. David shares how he always mentally prepares to fix what went wrong and assumes, “This is going to go well. Period.” David then describes his favorite adage to tell nervous actors, which is that you always hope the person presenting does well. While admitting it’s marginally different for lawyers, he insists that “they at least hope you’re competent,” which Michael agrees with wholeheartedly, ending this conversation by saying “People want to do the right thing.”

David, Michael, and Delisi end the episode by discussing David’s new business, “Hey, Good Meeting!” Michael and Delisi previously worked with David to surprise the audience at this year’s Big Rig Boot Camp with a comedic appearance by David. These types of events are exactly what Hey, Good Meeting specializes in and provides a unique experience with nationally recognized actors and comedians. If you’d like to book a live comedy experience customized for you and your guests at your next virtual event, holiday party, or referral partner gathering, go to www.heygoodmeeting.com for booking information.

This podcast also covers why all men are secretly 14 years old, what was so special about Chicago in 1996, the importance of listening, playing an outrageous character convincingly, applying the “Rule of 3” to the courtroom, David’s favorite improvised scene from “Anchorman,” using body language to communicate, how David deals with hecklers, and so much more.

 

 

Bio:

Actor, writer and producer David Koechner grew up in Tipton, Mo. working for his father in the family’s turkey coop manufacturing business. He studied political science at Benedictine College in Atchison, Kan, and then transferred to the University of Missouri. After college, Koechner moved to Chicago, where he studied improvisation at the IO (formerly the ImprovOlympic) with Del Close and Charna Halpern. He went on to become an ensemble member of Second City Theater Northwest.

From there, Koechner spent one season in the cast of “Saturday Night Live” before moving to Los Angeles and landing guest appearances on “Curb Your Enthusiasm” and “Reno 911” and a recurring role on “Still Standing.” He co-starred in indie films such as “Dill Scallion,” “Wakin’ Up in Reno,” “Dropping Out” and “Run Ronnie Run” while also turning solid performances in studio comedies such as “Out Cold,” “My Boss’ Daughter” and “A Guy Thing.” Koechner, along with Dave “Gruber” Allen, developed and performed The Naked Trucker & T-Bones Show on stage at Club Largo in Los Angeles. The show later became a Comedy Central series.

Koechner’s first major film break came when he was cast as Champ Kind in “Anchorman: The Legend of Ron Burgundy” (a role he reprised in 2013’s “Anchorman 2: The Legend Continues”). Koechner has been seen in a variety of studio and independent films such as “Daltry Calhoun,” “The Dukes of Hazzard,” “The 40 Year Old Virgin,” “Waiting,” “Yours, Mine and Ours,” “Talladega Nights: The Ballad of Ricky Bobby,” “Snakes on a Plane,” “Let’s Go To Prison,” “Semi-Pro,” “Get Smart,” “My One and Only,” “The Goods: Live Hard, Sell Hard,” “Extract,” “Final Destination 5,” “A Haunted House,” “Paul,” “Scouts Guide to the Zombie Apocalypse,” “Priceless,” Legendary’s “Krampus,”  the animated feature “Barnyard,” the critically acclaimed “Thank You for Smoking,” and the film festival award-winning thriller “Cheap Thrills.” He also starred in the Fox Atomic comedy “The Comebacks.” Recent film projects include “Then Came You,” “Braking for Whales” and “Faith Based,” as well as the upcoming indie horror thriller, “Vicious Fun.”

Koechner currently plays Bill Lewis on ABC’s “The Goldbergs” and recently appeared on ABC’s “Bless This Mess,” CBS’s “Superior Donuts,” Showtime’s “Twin Peaks,” Comedy Central’s “Another Period” and IFC’s “Stan Against Evil.” He also voices reoccurring characters on FOX’s “American Dad” and Netflix’s “F is for Family” and “The Epic Tales of Captain Underpants.” Koechner is well-known for his character Todd Packer on NBC’s hit comedy “The Office.”

When not filming, Koechner performs live stand-up comedy across the country and creates original content videos for his YouTube channel, “Full On Koechner.” He also co-hosts Big Slick Celebrity Weekend – an annual charity event benefitting Children’s Mercy Hospital of Kansas City – with fellow KC natives, Rob Riggle, Paul Rudd, Jason Sudeikis and Eric Stonestreet. Koechner currently resides in Los Angeles, California.

 

68 – Chris Madeksho – Masked Justice: Part 2

In this Trial Lawyer Nation podcast, Michael sits down with another trail blazing trial lawyer, Chris Madeksho. Chris recently received a $13.9 million jury verdict on a Mesothelioma case tried in person using social distancing and other safety measures. They discuss Chris’s background, the details and challenges of the case he tried, the safety measures taken, and the numerous strategies Chris used to win this fantastic verdict in the age of COVID-19.

Chris specializes in toxic tort and was introduced to the area by his late father, who worked in asbestos installation when he was young and went on to become a trial lawyer. He began his practice in Texas, but later moved his principal office to California due to Texas tort reform. As most great trial lawyers do, he then attended the Trial Lawyers College and began learning from the other great trial lawyers and scholars in the arena, citing Sari de la Motte, Eric Penn, Nick Rowley, Keith Mitnik, and R. Rex Parris.

Michael then asks Chris about the details of the case he tried. Chris’s client was a 68-year old Mesothelioma patient who worked as an asbestos installer from ages 9 to 19. Because of some criminal details in his background, Chris was forced to drop the loss of consortium claim and only request damages in personal injury, BUT was still awarded $13 million in non-economic damages alone.

With this impressive verdict, Michael asks Chris if the defense wanted to try the case or not. Chris responds with a resounding, “No.” In fact, they even opposed Chris’s waiver of jury when he attempted to get a bench trial. So Chris pushed forward, complied with the judge’s orders, and was completely prepared for trial when the time came.

Chris then explains how the jury summons and voir dire process was handled safely. The summonses were sent out via email and included COVID-19 hardship questions. He shares how we know our most dangerous jurors are people who are not afraid of COVID-19, but our second most dangerous jurors are people who are there who don’t want to be. Eliminating people who don’t want to be there was very helpful in that respect.

But, a jury summons by email has its downfalls. The biggest being that the demographics of the jury pool were not representative of the populous. The resulting jury was more affluent, more connected with technology, and more conservative than a typical King County jury would be. But as Chris puts it, “When you have a client who’s going to die if you don’t try the case now, you just do the best you can.”

After summoning the jury pool, voir dire was conducted mostly through Zoom with only two panels attending in person due to security concerns. These in person panelists were separated by a 6-foot spacer and their voir dire took place in a convention center to allow for safe distancing. While Chris believes he connected better with the in-person panelists, the resulting jury ended up being comprised of 14 virtual panelists and only 1 in person panelist.

The pair then move on to discuss Chris’s storytelling strategy. Chris explains how he’s worked extensively with Sari de la Motte and employed many of her Hostage to Hero strategies to craft his opening and closing arguments. He also emphasizes the importance of being “at ease” when speaking to the jury with a mask on. He shares the perfect analogy of being in a dark room where you can only see the other person’s eyes – you’re going to focus heavily on what you can see, so your eyes need to appear honest and relaxed.

Chris’s opening also focused heavily on the conduct of the defendant, a story he told by choosing the “villain” to be a corporate representative who is still alive. He decided to use her as the villain because she is more tangible to the jury than someone who may have done a lot of harm, but isn’t alive to pay for their wrongdoings. Chris and Michael then have a very insightful conversation on if the villain needs to be a person, or if the villain can simply be the organization as a whole – a subject discussed on this podcast in the past.

Michael then asks about how Chris told the damages story at trial, which Chris boiled down to “This is a man who worked his entire childhood. Now that he’s in his final days, he’s living his childhood for the first time.” He then shares how this powerful story was made stronger by getting the defense doctor to share the horrors of Mesothelioma – a useful strategy which every listener needs to hear.

The pair ends the episode with the defense’s shocking (and unsuccessful) closing argument. The defense lawyer basically said, “A lot of people are going to be dying painful deaths in this COVID era. They’re not getting any money.” As he said that, the jury set their tablets down and nobody wrote for the remainder of his argument. Chris agrees to share the transcripts for the full details, but the defense effectively ostracized themselves from the jury at this exact moment. While plaintiff lawyers everywhere have been concerned about this being used successfully against them, Chris’s experience shows it was ineffective.

If you’d like to reach Chris Madeksho, you can email him at cmadeksho@madeksholaw.com or visit his website at www.madeksholaw.com. He’s been kind enough to make himself available to speak with any plaintiff attorney who’s looking to get back in the courtroom and wants to learn from his experience.

This podcast also covers the intricacies of asbestos cases, the importance of putting your family first, working through personal issues with clients, Chris’s courtroom layout, trusting the jury, Chris’s advice for trial lawyers who want to improve, and so much more.

 

Interested in hearing more COVID Era trial stories? Check out our other Masked Justice episodes:

 

Bio:

Chris is licensed to practice law in three states – Texas, California and Washington State, and he has a national reputation for managing asbestos and other toxic torts. He has represented mesothelioma and toxic injury clients in courtrooms from New York to California, and from the Midwest down to Texas.  Chris is a graduate of the nationally-renowned Trial Lawyers College and is a fluent Spanish and French speaker.

In addition to trying cases for victims of cancer and toxic torts, Chris routinely tries cases pro bono for low-income families facing eviction in the Los Angeles area. He participated as trial counsel and adviser to tenants in the largest rent strike in Los Angeles County history. The tenants prevailed in their strike and the landlord eventually dismissed his eviction lawsuits after losing several trials. Helping his community is a passion for Chris.

Outside of work, you’ll find Chris spending time with his family — they especially enjoy gardening, exploring the outdoors, making music, and enjoying good food together. Chris’s dream is to eventually use his time and resources to reforest American ecosystems.

 

67 – Brendan Lupetin – Masked Justice: Part 1

In this Trial Lawyer Nation podcast, Michael sits down with trial attorney Brendan Lupetin out of Pittsburgh, Pennsylvania. Brendan, a self-proclaimed “trial nerd,” is one of just a handful of attorneys who has tried a case in the era of COVID-19, receiving a $10.8 million dollar jury verdict on his medical negligence case. They’ll discuss Brendan’s background, the details of the case, how he prepared, what it was like trying a case during a pandemic, and his advice for lawyers and courts across the country to start having jury trials again.

The episode begins with an overview of Brendan’s background and how he became the successful trial lawyer he is today. He explains how he began by trying about 10 bad cases where he lost “in brutal fashion,” and finally found his first victory with a $500 rear-end car case verdict. Since then, he’s focused on reading everything and anything he can on trials. Now, he’s tried 40 cases to jury verdict and has found great success in the last 10.

As a self-proclaimed “trial nerd,” Brendan spends most of his free time reading and studying the work of other great trial lawyers and legal scholars, citing Rick Friedman, Keith Mitnik, David Ball, Artemis Malekpour, Jude Basille, and many others. He and Michael discuss the difficulties of implementing all the trial theories and strategies available today, but Brendan explains how his approach is to blend them all together to find what works best for him. A sentiment echoed by Michael and certainly a recurring theme on the show.
Michael then asks Brendan about the details of the medical malpractice case he recently tried. While the difficulties of trying a case during a pandemic are apparent, Brendan insists his job was made easier by the fact that this was truly a great case. Brendan’s client, a 41-year old father and project manager, went to the hospital for an MRI. He had an allergic reaction to the contrasting chemical they injected him with. While the hospital had policies in place to protect patients in the event of an allergic reaction, none of those policies were followed and Brendan’s client was unfortunately left with a severe brain injury.

Michael then notes that Brendan ended up with such a simple theory, which Brendan explains was a long road to get to. They originally had 3 defendants, but after numerous focus groups and hiring John Campbell of Empirical Jury to run a study after Brendan “serendipitously” listened to his podcast episode 3 ½ weeks before the trial, they decided to drop one of the defendants because he complicated the story. Michael agrees that this was a smart move, quoting Rodney Jew by saying, “If you chase two rabbits, you won’t catch either one.”

Brendan also kept in mind Mark Mandell’s case framing theory throughout the trial and describes how he was tempted to dispute the defense’s timeline of events because he found they were about a minute and a half off. But after employing the case framing theory, he and his partner decided to leave that out because it drew away from the main focus of the case – “Policy violations caused delay, and delay is never good in an emergency.”

Michael then asks Brendan what else he’s learned throughout his study of advocacy that he used in the trial, to which Brendan simply replies, “everything.” He describes his journey to crafting the perfect opening statement, employing techniques from David Ball, Nick Rowley, Keith Mitnik, and many others. He also recorded the final product and shared it on his YouTube channel. It’s clear throughout the episode that Brendan is truly a lifelong learner and is constantly honing his craft as a trial lawyer.

After gaining insight into the case and Brendan’s trial techniques, Michael asks the question on everyone’s mind – What was it like trying a case during the pandemic? Brendan first gives credit to Judge Jackie Bernard and the court system for setting up an incredibly safe and effective trial plan, and emphasizes the need for more courts to follow suit and begin holding jury trials again.
The court began by sending out a questionnaire to potential jurors which asked hardship questions, immediately excluding anybody who had health concerns or was extremely uncomfortable attending a trial because of COVID-19. Voir dire was held in a huge courtroom with 45 people in the room, and 45 others in a separate room watching on video. The process was so streamlined and well planned that they were able to select the jury in less than four hours.

Once the trial began, this attention to detail became even more evident. Everybody wore masks for the duration of the trial, there was plexiglass around the judge and witness stand, and the jury was spread out around the room in a way so creative you have to hear it to believe it. By using these precautions, the trial went on without a hitch and with a significantly lower risk of infection than a traditional trial set up.

Brendan and Michael agree that without a significant threat of a trial, their big cases won’t result in a fair settlement. They discuss the immediate need for courts to find a safe solution to continue jury trials and the need for plaintiff lawyers to work together to persuade their courts to do so.

They end the episode on a surprising note. Brendan explains how everybody thinks trying a case during the pandemic is this crazy experience, but he said it really didn’t feel very different from trying a case in a courtroom you haven’t been in before. You always need to adapt to a new judge’s rules, a new courtroom set up, etc. This wasn’t much different than that. And by implementing the safety precautions Brendan described, courts around the country can begin to open and allow the pursuit of justice instead of pushing trials off further and further. As Brendan poetically put it, “Hope is not a plan.”

If you’d like to learn more from Brendan Lupetin, visit his firm’s website and subscribe to his YouTube channel.

This podcast also covers Brendan’s favorite closing strategy, obtaining a representative jury during COVID-19, the “freaky” accurate results of Brendan’s Empirical Jury study with John Campbell, and so much more.

 

Interested in hearing more COVID Era trial stories? Check out our other Masked Justice episodes:

 

Bio:

Brendan is a trial lawyer in Pittsburgh, Pennsylvania.  He focuses on medical malpractice, product defect and personal injury law.  He loves helping the people he represents and trying their cases to jury verdict when necessary.

Brendan is a trial nerd and truly enjoys reading trial books, studying trial videos and seminars, watching trials and “talking shop” with fellow trial lawyers.

The son of a doctor and trauma counselor Brendan learned early on the importance of compassion, empathy and to always stand up for what is right, no matter the consequence.

Following a four-year tenure as a scholarship swimmer, Brendan received his B.S. from the University of Pittsburgh in 2000 and his J.D. from the University of Pittsburgh School of Law in 2005.
During his career, Brendan has tried numerous cases of all types to jury verdict.  Over the course of the past several years, Brendan has obtained numerous multi-million-dollar verdicts for his clients – all of which far exceeded the highest offers of settlement.

What Brendan loves more than anything, however, is spending time with his wife and high school sweetheart Lacey and their three sons Nathan, John and Owen.

 

66 – Dorothy Clay Sims & Dr. Oregon Hunter – The Lawyer-Doctor Duo: Exposing Deceptive Defense Doctors

In this Trial Lawyer Nation podcast, Michael sits down with attorney Dorothy Clay Sims and Dr. Oregon Hunter to discuss their research on defense-paid medical witnesses. They’ll discuss how the pair became involved in this research, Dorothy’s book “Exposing Deceptive Defense Doctors,” Dr. Hunter’s published study on the subject, and take an in-depth look at Dorothy’s favorite tactics for exposing deception in defense doctors.

The episode begins with a brief overview of what Dorothy and Dr. Hunter each do and how they became involved in it. Dr. Hunter focuses on watching video tapes of defense medical exams and generating charts of everything the “expert” lied about in those statements. In his initial study, he’s sad to say they lied or misrepresented the facts 100% of the time.

Dorothy explains how she used to have a large worker’s comp practice in Florida when she noticed a pattern – 60 of her clients were found to be malingerers by a Harvard-educated, smooth talking defense doctor. He was giving them all the same test, the MMPI (Minnesota Multiphasic Personality Inventory). Dorothy decided to sit down with the doctor who first created the test and found that the defense doctor was completely misrepresenting the results of the test. She even got the doctor who created the test to sign an affidavit saying, “If he was a student, I’d flunk him.”

This sparked a deep interest in the subject, and she began researching other tests to see how they’ve been manipulated to serve the interests of the defense. As her work gained more attention, she began receiving phone calls from David Ball himself telling her, “You’ve got to write a book, dammit. You’ve got to do it!” So, she complied and wrote “Exposing Deceptive Defense Doctors,”which Michael describes as “the Bible” for any case where you have a doctor on the other side.

Dorothy goes on to share some of her more shocking findings, from 40% of defense doctors lying about their degrees, to a doctor who was fired for stealing from a poor patient’s medical fund to pay for prostitutes. She also shares some creative resources she uses to find this information and implores all plaintiff attorneys listening to do their due diligence whenever there’s a doctor on the other side trying to discredit their client.

Dorothy then shares her detailed, organized method for marking up her depo notes, allowing her to go into every defense doctor deposition prepared with the pertinent information (and a record of their lies). She has now compiled 30,000 pages of information on thousands of defense doctors, which she is willing to share with any plaintiff lawyer interested.

The conversation shifts to Dr. Oregon Hunter, whose published study on the subject.  He explains how if you look at the medical exams from defense doctors, they will appear at face value as an exam of a perfectly healthy person. But when he watches the video tape of the exam, all he can say is, “Oh my god.” He goes on to share countless examples of doctors who claimed they conducted a test, but either didn’t conduct the test at all or were so sloppy about it that there’s no way they could actually tell if the client was injured or not. He also shares how they’ll often use templates which contain information that has nothing to do with the person they’re examining. For example, a patient’s ankles were described as “normal,” but there was just one issue – the patient’s legs had both been amputated.

Michael then asks Dorothy, what are some other things we need to look out for when they’re “trying to pull the wool over our eyes?” Dorothy shares her experience with brain scans and the defense doctor showing slices of the scan which do not show damage, when there are other slices which show the damage much clearer. She continues with other examples of similar practices with different injuries and concludes by emphasizing the need to always be on the lookout for “false choices.” For example, the defense will say a client who had preexisting arthritis cannot have a herniated disc from the crash, when in reality you can have both.

Michael continues on this note by sharing a story of a radiologist who attempted to re-define the word “trauma” for the sake of the defense argument. After finding the book the doctor was referencing (MRI of the Brain and Spine by Scott Atlas) Michael uncovered a paragraph which states, “there is no legal or factual basis to date when a herniation happened from looking at an MRI.” After bringing this up in the deposition, he effectively ended the radiologist’s testimony career.

The episode concludes with Dorothy’s final words of advice for deposing defense doctors. She recommends numerous helpful strategies, including having the plaintiff present when the doctor calls them a liar, having your own doctor present to induce what Dr. Hunter calls “the halo effect,” and finally (and most importantly) do your research. Does the doctor say they are board certified? Look into the organization (one even certified a cat). Does their CV say anything about Harvard? Definitely look into that, as she’s found 80% of defense doctors with Harvard on their resume are lying about it. Utilizing this advice and the excellent resources mentioned in this episode will ensure that even if the defense doctor is lying through their teeth, you won’t let them get away with it.

This podcast also covers gaining permission to video record defense doctor exams, sociopathy in defense doctors, what “grossly normal” on a report really means, the importance of reading the literature the defense doctor cites, and so much more.

You can reach Dorothy Clay Sims via email at dcs@dorothyclaysims.com and through her website at https://dorothyclaysims.com/.

 

Bio:

Dorothy Sims and her team combine decades of experience in medical, legal, and research fields.

On a daily basis, Dorothy consults with attorneys throughout the U.S., to provide methods of expert testimony cross-examination. If an attorney requests, Dorothy can depose experts herself. For more information about her consulting, visit the Consultations page .

Dorothy’s practice includes numerous other projects and philanthropic work. She is frequently invited to in-house seminars for lawyers and law firms on researching and cross-examining. She has given over 350 speeches internationally on medical/legal issues throughout the world and is often invited as the state keynote speaker. She has spoken in almost every state in the United States including Hawaii and Alaska. She has also been a featured speaker in Paris, France, Jaipur, India, and twice in Kyoto, Japan.

She has authored chapters in books with individuals such as David Ball and Don Keenan as well as Dr. Michael Freeman. Dorothy donates a percentage of her book profits various organizations including the American Association for Justice and the International Federation for Human Rights. Her book, “Exposing Deceptive Defense Doctors ” was a best seller for 3 years in a row and went into reprint status soon after publication, unheard of in the industry. She has also authored two children’s books for parents who are injured. The books are available for free upon request. She has also authored articles in national publications to include the Champion MagazineTrial Magazine (The American Association for Justice Journal) most recently on the cover of the December, 2015 issue, and Brain Injury Professional.

About Dorothy Sims

Dorothy received both her undergraduate and law degree from the University of Florida; and studied international law at Oxford University. She is licensed in the state of Florida, US District Court – Northern District of Florida, US District Court and the Middle District of Florida. She has also cross examined experts in many states throughout the US.

Dorothy initially represented miners in Kentucky who were denied black lung benefits. Going down into the bowels of a mine in Eastern Kentucky, she felt vibrations as the miners “shot coal” (exploded portions of the face to loosen the coal). Despite wearing a mask, her trip left her coughing and sneezing coal dust for days; leading to a newfound respect for the dreaded pneumoconiosis suffered by miners who had spent decades in the mines.

After representing coalminers, Dorothy began representing workers who were injured and denied medical care. She co-founded the Florida Workers’ Advocates – the state’s first watchdog over the insurance industry devoted to serving injured – and eventually served as president.

For over a decade, Sims volunteered time to lobby on behalf of the injured and was the first woman to be elected Chair of the Florida Bar Worker’s Compensation Section in its 22-year history. She also served as President of the Marion County Bar Association.

While practicing law, she began to notice an alarming pattern. Forensic experts hired by the other side were reaching conclusions by (1) misrepresenting the science (2) ignoring the science (3) misrepresenting the facts and/or their examination and/or (4) testifying beyond their own training and education.

About Dr. Oregon Hunter

Dorothy’s most recent addition to her team is Dr. Oregon K. Hunter, MD – a medical doctor licensed in Florida – who currently works on cases with Dorothy and other lawyers to determine if misrepresentations are made about the science. If you provide notice to defense counsel, he can attend a deposition as a non-testifying consultant. He can remote in for mediations to explain medical issues to the defense in support of the plaintiff’s case. He watches videotapes of defense exams and provides an analysis for lead counsel explaining what the other side’s expert misrepresented. For an example of an evaluation of a case conducted by Dr. Hunter in which the expert’s exam was videotaped contact us here.

Dr. Hunter is board certified in Physical Medicine and Rehabilitation and practiced medicine in Hawaii, California and Florida. He joined Dorothy’s team in 2015 and is an invaluable asset in reviewing cases.

Dr. Hunter is also available to attend mediations by video and explain weaknesses in defense’s position. Attorneys Evan Lubell (elubell@floridalegalrights.com) and Dan Ramsfeld (dan@ramsdelllaw.com) can be contacted as references for Dr. Hunter’s recent participation in their case.

 

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