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In this Trial Lawyer Nation podcast, Joshua Karton joins Michael for an introspective discussion on trial psychology and communication.
Joshua’s perspectives on turning off the “act” in a courtroom and getting back to just being (real) are deep and enlightening to listeners at all levels of the industry. The idea of “getting out of your own head” is turned upside down as Joshua challenges attorneys to embrace their role not as one there to protect themselves or their own ego, but rather as someone who is there to defend and protect their client and thereby connect with jurors who could see themselves in the position of the client one day and wanting the same protection.
Joshua shares what he believes allows people to trust through using everything you’ve got and not leaving anything in reserve. Joshua also breaks down the concept of not using negative objectives (such as not wanting to bore the jury, not wanting to piss off the judge, not wanting to embarrass yourself) that can’t be done, and instead of committing to objectives that are incompatible with the negative. Michael shares an application of this concept through the evolution of his own practice and how it’s propelled his success and allowed him to alleviate many of the stresses that tend to plague and follow most lawyers.
Joshua expounds on the power of goodness and how the recent political landscape has challenged this approach of connecting with jurors and how deep the need to be right has become a critical hurdle in the courtroom. Michael takes these ideas a step further by discussing how they have affected even the validity of eye witness testimony and the influences of psychodrama sessions. Self-awareness weaves its way throughout the podcast as the main theme that bolsters the success of attorneys in the right frame of mind and holds back others.
The episode concludes with a thoughtful discussion on the lens jurors see things through and how being aware of how you are setting yourself up to be perceived can change dramatically based on a single choice all attorneys have control over.
Background on Joshua Karton:
JOSHUA KARTON, president of Communication Arts, specializes in the application of the communication techniques of theatre/film/television to the art of trial advocacy. He serves on the faculties and develops curriculum for AAJ, the Gerry Spence Trial Lawyer’s College, NITA, the JAG Corps, ABA, NACDL, National Criminal Defense College, Loyola and California Western Schools of Law, state t.l.a.’s and criminal defense associations, as well as maintaining a professional practice of individual case consultation and witness preparation. Thirty years of work in this field culminated in his preparation of the winning oral argument to the United States Supreme Court in Hamdan v Rumsfeld, and the 2016 Lifetime Achievement Award for Excellence in Advocacy from Stetson University College of Law’s Center for Excellence in Advocacy. He co-authored Theater for Trial, released by Trial Guides November 1, 2017.
For more on Joshua Karton visit: https://www.trialguides.com/authors/joshua-karton/
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59 – Malorie Peacock – Discover Your “Why”: Committing to Organizational Health
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In this Trial Lawyer Nation podcast, Michael sits down with his law partner Malorie Peacock. They discuss their recent “deep dive” 2-day management retreat, the organizational health of your law firm, Zoom jury trials, and implications of the shut down on future business.
The episode begins with a review of their firm’s recent 2-day management retreat, which was a “deep dive” into their firm’s core values, focus, and goals based off the book “The Advantage: Why Organizational Health Trumps Everything Else in Business” by Patrick Lencioni. The retreat starts off with a seemingly simple question: Why does our law firm exist? Michael admits he was worried everyone would think the idea was “hokey,” but Malorie insists she was surprised at how complex the question really was. Michael, Malorie, and the rest of their management team spent significant time reflecting on this and decided their firm’s purpose is to “provide a ‘Special Forces’ level of representation to people who are hurt.” Michael recognizes this as an extremely high aspirational standard (which is why he hesitated at first to share) and sees this as their goal for the firm.
After deciding the firm’s purpose, their team was tasked with choosing the firm’s core values. Both Michael and Malorie emphasize the importance of choosing values you will embrace and commit to. As an example, Michael highlights the common PI lawyer core value of safety. He asks, “What do you do when you get a 5 million dollar offer without a safety change, or 1 million dollars with a safety change?” If the firm’s core value is safety, they should take the lower offer. Malorie echoes this sentiment and adds that PI lawyers face a lot of backlash from society, so they tend to overcompensate by expressing an unrealistic emphasis on safety over getting justice for their clients. The key is choosing values that truly represent your firm and its goals.
On the note of goal setting, Michael explains the importance of choosing one large goal and sticking to it. Citing Gary W. Keller’s book “The One Thing,” Michael reflects on past experiences of having lots of great ideas, but something would always come up and they would be forgotten. By choosing the one area which adds the most “bang” to your law firm, you can truly focus on that area and strive towards your goal every day. This strategy requires buy-in and personal work from every attorney at your firm, but when achieved is very effective.
Michael and Malorie then reflect on the implications of states re-opening and how it affects their ability to conduct legal work remotely. Malorie has already had opposing counsel insist on doing things in person again, but worries about what she’ll do down the line if the court forces her high-risk client to have an in-person deposition. Michael shares these concerns, stating “eventually I’ll be ordered to do something I’m not comfortable doing.”
As they switch to the topic of Zoom jury trials, Michael is quick to share his hesitance towards the idea. His concerns include a lack of nonverbal communication, distractions, a loss of group dynamics, and the inability to obtain a representative jury pool by excluding citizens without adequate internet or access to childcare. He does add that online focus groups have shown the numbers aren’t very different from in-person jury trials, but he would like to see more research before committing to one. Malorie also notes an interesting difference between an in-person trial and a virtual trial. In a virtual trial you have to sit in the same place for the entirety of the case, which means you can’t have witnesses act things out, do demonstrations, or have multiple ways of showing people information. This makes it more difficult to keep the attention of the jury. Michael and Malorie end this discussion by agreeing if this goes on for years, they will eventually have to adapt. And Michael ends by agreeing to try a jury trial case via Zoom with a podcast fan, an offer you’ll have to tune in to hear all of the details.
They finish off this episode with a conversation about future business implications because of this shut down. Malorie has noticed more people on the roads recently and only anticipates a 3-4 month lull in new cases, but believes it will pick back up quickly. Michael agrees and adds that people are getting stir crazy, and driving more recklessly than before, stating “gear up and get ready.” With that being said, Michael and Malorie encourage scrutiny when deciding what cases to invest in right now. Malorie believes small insurance companies may be less willing to pay out claims, and Michael is being very cautious with cases involving a risk retention group or a self-insured company. Many are currently teetering on insolvency and may not be able to pay out claims.
This podcast also covers answering legal questions for friends, “Zoom fatigue,” time management, return-to-office prep, and more.
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36 – David Ball – Finding the Alignment – Understanding What Jurors Want
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In this Trial Lawyer Nation podcast, Michael Cowen sits down with a special guest, Dr. David Ball. David is a trial consultant, speaker, and one of the “fathers” of the book “The Reptile in the MIST.” His name and his books have been mentioned on numerous episodes not only Michael Cowen, but many of our Trial Lawyer Nation guests. With several books of David’s to choose from, Michael can’t help but note how “David Ball on Damages 3” has been very useful in helping him craft opening statements and serving as an outline for many trials. He also highly recommends all trial lawyers have this book within arms-reach of their desk (more on this later in the episode). And for those trial lawyers who don’t know David personally, it is important to also note he has probably done more good for trial lawyers than anyone else in the industry.
Having started down his path many years ago, David’s mission of trying to help trial attorneys make complicated things clear, originally came from his background in theatre, where much of what he had learned in theatre has been extremely useful for trial lawyers. In fact, working with a more classical repertoire theatre with works from Shakespeare, he wondered how he could make those plays crystal clear for the audience who is listening to it and how it might relate to the legal industry. His conclusion? “I realized lawyers have 2 problems: 1. They’re boring as hell and 2. They’re not very clear about what they’re talking about.” Today David describes what he does as helping to strategize cases to maximize the principles of what we’ve learned in the neurosciences and apply it to how people really make conclusions, how decisions are made, how we know things, and how logic has very little to do with any of it. Essentially, working as a bridge between the neurosciences and the courtroom.
So, how do we get jurors to see things the way we want them to? Logic doesn’t deal with the law school version of tell them your case, they’ll understand your case, and if you’re in the right, they’ll give your client a just verdict. Justice has nothing to do with how people make decisions. How do we translate that into things you’re allowed to do in trial and in a way that will motivate jurors to do what we want them to do? David says, people don’t make their decisions on the basis of “justice,” but rather justice is simply the result of something you think you want. He goes on to explain why trial lawyers need to look at what they’ve got and then put this “stew” together into something someone REALLY wants, for it to end the way we want it to. The whole process of trial, as David describes it, is an alignment.
David continues to describe this alignment by combining solid research along with all the things he’s learned in theatre about what real storytelling is. The fundamental thing about The Reptile, he describes, is by getting the jurors to want themselves to be safe and live in a safe world, that becomes their want. He also points out that in order to get their want, he also needs to get his client’s “want,” which is money. Michael adds to this by stating the only power the jury has in the courtroom is to give or deny money in the case. David goes on to say that if the attorney is presenting their case well, jurors will understand if they give a good verdict it will make their world safer, but also giving a bad verdict will make their world a more dangerous place than it is now. In other words, once the jurors walk into the courtroom, they will be walking out with either a safer world or a more dangerous world, but it will never be the same way as when they walked in. Furthermore, David explains when you ask a client why they are doing the case, not only will they say it’s because they need the money (compensation) but they also want to make sure this won’t happen to anyone else. To expand on his point, David shares an example from his early years watching the trial of a case involving a wealthy woman in North Carolina, who was rear-ended and clearly didn’t need the compensation from the case. The answer the woman gave him when he asked her why she was going through with the case, even though it was painful, is priceless. And it helps us understand why even the smallest cases are important in making the world a safer place. David also talks about the points he describes to the jurors regarding their potential complicities in what they allow the defense to get away with and the affects it will have on others who face the same situations in the future.
Which leads Michael to pose the question, “how do we figure out what the jurors want?” David goes through a laundry list of things we know about what jurors want, including through focus groups and the neurosciences what motivates us to want something. Boiled down to its core, David explains this with a great example of teenage boys as jurors, which will shock you and make complete sense. And he wraps up with describing the fundamental drives that keep us alive, as well as the impact of disrespect and humiliation.
The topic shifts at one point to talk about when the other side brings in what they call an “independent medical examiner,” three lies in one person’s title, David jokes (sort of). Rather than disagreeing with their conclusion, David proposes you show what they did wrong in their methodology, to show they purposely arrived at the wrong conclusion. He goes on to show how the right types of questions posed to your own experts can further point out the flaws in their conclusions without the need to call the defense’s independent expert a liar. Michael also adds how it can be very effective to discuss the idea of a defense’s witness as “independent,” when they’ve been picked and paid for by the defense, in helping the jury not feel like their intelligence is being disrespected. David continues to talk about the difference between describing the defense as someone who may lie in order to protect themselves vs. someone who is disrespecting the jury by insulting their intelligence and the impact this can have on a jury. He goes on to point out how it is analogous to the difference between a doctor lying to a patient, where the patient might be being disrespected but the juror is not vs. a doctor getting on the witness stand and deliberately misleads the jury, and as such, disrespecting them.
One of the things David describes as loving about what he’s been able to do, is when he started writing his first theatre for trial book, there was nothing. Nobody was doing anything in the way of teaching major overall strategy and there were certainly no books on damages or doing it. He’d like to think that the Damages book helped give rise to this whole other industry. In one hand he should hate it, he created all his own competitors, and on the other hand it is the greatest feeling in the world for him.
David also suggests for every attorney to page through their Damages 3 book on a consistent basis to examine it through the lens of the case you’re working on currently, in order to see things you never saw before. He suggests this, mainly because so much information is lost after seminars and reading other books, because the only things you likely retain are the things which pertain to the case you’re working on right now.
Michael and David move on to the topic of the principles of persuasion and how David has brought his theatre experience into the courtroom. Revisiting the idea of “real storytelling,” David talks through the actual history of storytelling and how it has evolved over time. He points out why you have to make people want to hear the next part of the story, AKA “narrative thrust,” using “dramatic tension” to create tension between this moment and the next moment, and the next moment could be an hour away or two minutes away. Crafting what David describes as “forwards” where everyone sees the anticipated moment in the story and wants to hear it for themselves. He also points out these forwards are very case specific, very particular to the story, and it is a relatively sophisticated thing to do for people who are not natural born storytellers, but you can learn to do it. And he describes why the context in storytelling and where you put pieces of information in the story matter significantly to shaping the story.
Michael and David touch briefly on social media and a trial lawyer’s first amendment right, where it is important to note David believes if you are a trial lawyer, you have accepted a fiduciary responsibility to your client which trumps your ability to have free speech. He also believes society has become so divisive these days on social media and now face to face, where we now have the challenge of bringing both sides together to fight for an even greater cause. David uses the example of 2 people fighting, but when someone comes in and tries to do harm to them, they will both unite because they are both in danger and need each other to save themselves. The heart of such a scenario, is the aim of every trial lawyer when working with diverse juries.
Digging deeper into David’s theatre background, Michael talks about how he has yet to see a trial lawyer facing a potentially multi-million-dollar trial rehearse as much as a community theatre where 30 people may be in the audience. David shares how being a trial lawyer is the only area of public performance where they don’t rehearse. He goes on to suggest you cannot fully rehearse on your own and, a full rehearsal, means a dress rehearsal. In the same way you cannot have football practice without eventually having a scrimmage with another side. When you are on the stage, you have a million other things on your mind, you’re being “Hamlet.” When you’re a lawyer, you’ve got your peers, the judge, and the jury all watching you. It distracts your attention from where it needs to be, so you seem very nervous. You cannot be a leader of human beings when you’re very nervous. And the best lawyers are leaders of human beings.
The podcast ends with a discussion on charisma in the courtroom as well as David’s important work in the criminal defense industry. And after spending this episode with David, it’s clear to see why so many trial lawyers look to him as a powerhouse in the industry.
“Please note the TLN19 discount code mentioned in this show has now expired.”
BACKGROUND
David Ball, who wrote trial advocacy’s best-selling strategy book – David Ball on Damages — is a litigation researcher and strategist with North Carolina’s Malekpour & Ball Consulting (JuryWatch, Inc.). He is the nation’s most influential jury consultant, communications expert, and advocacy teacher. His training is in science, engineering, and small-group communications, and he is a 30-year veteran of the professional theater.
Dr. Ball and his partner, lawyer/consultant Artemis Malekpour (artemis@consultmmb.com), consult on civil and criminal cases across the country. They are routinely credited with turning the most difficult cases into significant victories. They are the nation’s only trial consultants qualified to safely and comprehensively guide attorneys with Reptilian, David Ball on Damages, and David Ball on Criminal Defense methods and strategy. Their hundreds of brainstorming sessions – “WorkDays” – have become the gold standard for case-strategy development.
In addition to David Ball on Damages, Dr. Ball’s other landmark advocacy books include Theater Tips & Strategies for Jury Trials, Reptile (with Don Keenan), Theater for Trial (with Joshua Karton), Reptile in the MIST, and David Ball on Criminal Defense.
Dr. Ball has taught law students at North Carolina, Wake Forest, Pittsburgh, Minnesota, Roger
Williams, Loyola, and Campbell schools of law, and at Duke Law as Senior Lecturer. He’s an award-winning teacher for the North Carolina Advocates for Justice and the American Association for Justice’s National College of Advocacy. He has long been among the nation’s most in-demand of CLE speakers. His favorite job was taxi driver in the 1970s in Stamford, CT, and his Daddy was a Catskill Mountains bootlegger during Prohibition.
Dr. Ball is also a pioneer in adapting film and theater methods into trial techniques. His theater/film students have won Oscars, Obies, Tonies, and Emmies; his scripts have been staged at professional theaters off-Broadway, throughout North America, and overseas. He helped to lead the Guthrie Theater, as well as Carnegie-Mellon University’s renowned theater conservatory and, as Chair, Duke University’s Drama Department. His best-selling film and theater training book, Backwards and Forwards, has been the field’s standard every year since 1984, and is now in uses by trail lawyers as well. His crossover books, Theater Tips and Strategies for Jury Trials along with the new Theater for Trial, are the standards for the use of film and theater techniques in litigation.
Dr. Ball also wrote the cult classic film Hard Rock Zombies, though he made up for it by writing Swamp Outlaw, a novel about Civil War Era Lumbee hero Henry Berry Lowery, now under option for a motion picture. (TV viewers: Dr. Ball and Dr. Bull deny each other’s existence.)
RESOURCES
Reptile: The 2009 Manual of the Plaintiff’s Revolution
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10 – Marion Munley – Building Equity in the Legal Industry from the Inside Out
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In this Trial Lawyer Nation podcast, Michael Cowen welcomes board-certified and award-winning personal injury lawyer, Marion Munley of Munley Law. Marion describes the long family history of strong female influencers who impacted the direction she took in becoming a trial attorney, as well as the inspiration she has drawn from them when giving back in a male-dominated industry.
Marion looks back at some of her more prominent cases in the trucking industry and recalls the lessons learned from research and expert testimony. The sheer volume of interstate highways that converge in her geographic location uniquely, and unfortunately, provide ample trucking cases which have only made her expertise in this focused field more honored. As the Chair-Elect of the AAJ (American Association for Justice) Trucking Litigation Group, Marion’s public speaking engagements have been vast in the trucking litigation arena.
Marion and Michael also explore some polarizing differences in approach when obtaining new cases or referrals and how egos, verdicts, and humbleness do not all fit into the same trial attorney personalities. Marion describes her approach to this and where it’s taken her over the course of her career. Hint, hint, her solid credentials tend to speak volumes, which they both agree are always to be added to in any successful practice.
Marion’s advice to lawyers moving into personal injury law is shared and she speaks directly to the importance of mentorship, training, and opportunities needed to be displayed to the next generation of trial attorneys. In fact, based on a study shared by the ABA, Marion sites that “we know that more women have to be groomed and mentored to become the first chair as there are women out there that are VERY capable and would be great trial lawyers who are just not getting the opportunity, and that all begins with just mentoring and trying to help young lawyers navigate what to do with their careers”… which is not often an easy task. It is clear and evident that Marion’s passion for mentorship comes from a desire to further add and build more equity into the industry.
Background on Marion Munley
Marion Munley is a senior partner in the Scranton law firm Munley Law. A champion of victims’ rights, Marion devotes her practice to representing individuals and families in personal injury litigation, with a special focus on cases involving a commercial truck and tractor-trailer accidents. Marion completed her undergraduate degree from the University of Scranton and earned her J.D. from Temple University School of Law.
Marion is an active member of the American Association for Justice and currently serves on the AAJ Board of Governors. She is Chair of the AAJ Women Trial Lawyers Caucus and the first female Chair-Elect of the AAJ Trucking Litigation Group. Marion also serves on the Board of Trustees for the National College of Advocacy. She is a member of the Pennsylvania Association for Justice where she serves on the Board of Governors and on its executive committee.
Munley is the second woman in Pennsylvania to become Board Certified as a Civil Trial Advocate by the National Board of Trial Advocacy. Among her other professional affiliations is the American Board of Trial Advocates and the International Society of Barristers. She has been named to the Best Lawyers in America list by Best Lawyers since 2012. Marion has been selected to the list of Pennsylvania Super Lawyers for the last 15 years and has been consistently recognized as one of the Top 50 Women Lawyers in Pennsylvania by Super Lawyers Magazine.
Marion frequently travels throughout the United States to lecture on trucking litigation, and recently published an article in Trial Magazine on retrieving electronic data from a crash.
Throughout her career, Marion has demonstrated an unwavering commitment to mentoring other women lawyers. In 2016, the Pennsylvania Bar Association honored Marion with the Lynette Norton Award in recognition of her excellence in the law and her dedication to mentoring other women lawyers.
Click here for more information on Marion Munley
