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In this episode of Trial Lawyer Nation, Michael talks with acclaimed commercial motor vehicle trial attorney, Joe Fried, about his journey of going from 0 to 60 in becoming a trucking industry subject matter expert.
Joe’s calling to enter the field came from some unexpected sources as he explains to Michael the barrage of signs that led him to become a subject matter expert after finishing a large book of business against the Ford Motor Company. Joe describes the evolution of his role as a lawyer and the number one fear that was used as a driving force in his success.
On a larger scale, Joe encourages others to think beyond the boundaries of a case to serve a greater good by doing what’s right not only for the families affected but also what’s right for the industry and the families that can avoid having the same happen to them.
Throughout the podcast, the topic of hyper-specialization is explained both from the positive perspectives of becoming the only person who understands such a narrow subject, but also the trade-offs and sacrifices that need to be made in doing so with your practice. Joe also emphasizes the importance of inclusivity in the industry and using that mantra as a resource instead of something to be afraid of as he gives listeners a generous offer.
Background on Joseph A. Fried:
Joe Fried is one of only a few lawyers in America who limits his legal practice to handling truck and other commercial motor vehicle crash cases. Based out of Atlanta Georgia, Joe has handled commercial motor vehicle crash cases in over 30 States and has helped recover more than $500 million for clients. He holds several record settlements and verdict.
When he is not actually handling cases, Joe is writing about and teaching other lawyers how to get the best results possible in commercial motor vehicle crash cases. He has authored books, book chapters, peer-reviewed articles and a Trial Guides DVD specific to this unique field and has given over 250 presentations around the Country specific to this field.
Joe is a nationally recognized leader in trucking litigation. He is the founder and Founding Director of the Academy of Truck Accident Attorneys, immediate past chair of the American Association of Justice Trucking Litigation Group, and President of the National Trial Lawyers Trucking Division.
Joe brings a diverse background to each case. He is a former judge and police officer, has real-world training in accident investigation and reconstruction, physics, engineering, and human factors. At the same time, Joe has hundreds of hours of training in psychodrama, neurolinguistics and story development and is known for his unique ability to find and tell the compelling human story that underlies each of his cases.
For more on Joe Fried visit: https://www.frg-law.com/the-firm/joseph-a-fried/
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36 – David Ball – Finding the Alignment – Understanding What Jurors Want
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In this episode of Trial Lawyer Nation, 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 conversation 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
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42 – Cynthia Rando – Human Factors: How Space Station Precision Leads to Courtroom Results
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In this episode of Trial Lawyer Nation, Michael Cowen sits down with Cynthia Rando, a Certified Human Factors Professional who also operates as an expert witness on human factors in the courtroom.
Knowing she always wanted to run her own business, Cynthia started her career at NASA Johnson Space Center in Houston, Texas as a human factors engineer, working with the space station program where some of her work is still flying in space, assisting the crew it their missions. Michael notes the space station as an environment where the margin of error is small, and the consequence of error is huge to which Cynthia describes them as one of the most hostile environments you could ever have to design for and in the most stressful safety type environment.
Digging right in, Michael asks the question which is likely to be on most listeners minds – what exactly is “human factors?” Cynthia describes human factors as an extremely broad science that deals with how people interact and perceive their environment, the things they use in that environment, and also how they interact in work with other people. She goes on to boil it down to two things: 1. helping people optimize what they do well, whether it’s through design or understanding of human behavior, and also your physical body shape and limitations and, 2. mitigate what we don’t do well to avoid risk of injury or human error. For example, she describes driving perception, where a lot of people have issues on the roadway taking turns, so it is considered a very high cognitive load task. The human factors look at the process and procedure that the person took in taking a turn, the visibility of oncoming traffic, what that person or reasonable driver could have been able to see, and if all conditions were perfect, did they take the right steps.
Michael and Cynthia continue to explore examples and how they determine these scenarios retrospectively. It’s interesting to hear how her firm, Sophic Synergistics, doesn’t do accident reconstruction, but rather often works extremely close with the accident reconstructionist on the case. Cynthia describes her process of going out to conduct a site visit in order to look at the environment, the design of the roadway, where the vehicles were, and the vantage points for all the drivers or entities involved, including pedestrians, which establishes what everybody could see from their vantage point in a reasonable fashion. From there, she’s looking for the best line of facts which line up in corroboration with each other and which make the most sense in terms of probability based on what you know as human factors. Examples of this would be whether there is a question of reaction time, perception, performance, or if speed was involved or not. She describes it as dissecting the actions, behaviors, as well as the cognitive processes, to know what was possible or what wasn’t, based off the actual physical environment. In other words, it leads to understanding what the facts are telling you, and where they align and where they don’t.
To understand more on how this might work in other types of cases, Cynthia describes a product liability case which involved a consumer product marketed to adults but ended up being used by children. She describes the product’s design as having been so attractive to little children that the children ended up becoming the primary users despite all the company’s efforts to say this product isn’t for kids. She goes on to describe how labeling is also hard to use as a strong enough warning because we, as human beings, are bad at seeing risk and how it pertains to us, making it very difficult to convince people via labeling. A great example Michael brings up of how those risks impact our behaviors is wearing your seatbelt, because there have always been consequence of dying, looming among us all if we don’t wear our seatbelt, but it wasn’t until laws were passed which extended the consequence to something as simple as getting a $200 ticket became associated with it, sparking more people to relate to it. Cynthia goes on to explain why this example worked saying “you need to believe the consequence, and if the consequence has never happened to you or you’ve never known someone to experience it, then you don’t really think it will happen to you.” IE: Perhaps you might not know someone who has died from not wearing their seatbelt, but you likely have experienced being pulled over, or know someone who has been, making the $200 ticket a more “real” potential consequence.
Michael and Cynthia continue to explore several other examples of human factors and how they become introduced in courtroom cases, as well as the many other areas Cynthia’s full-service human factors consulting firm works with using human factors in a wide variety of other industries. The detail to which they discuss human factors in this episode goes well beyond the surface and provides a great understanding in how they play a seemingly granular role with potentially momentous impacts … not unlike how they pertain to space stations.
BACKGROUND
Cynthia Rando is the Founder/CEO of Sophic Synergistics, LLC, a Human Factors consulting firm that is focused on optimizing human performance and experience in any environment- Building Better Businesses by Design.TM. Cynthia introduced the SOPHIC Conceptual model to the field, a model that utilizes human factors/human centered design as a profitable business model and strategy.
She has spent 17+ years in the field of Human Factors Design including 12 years at NASA’s Johnson Space Center in Houston, TX. During this time, she provided extensive leadership to the organization addressing several critical areas in Human Factors and Human Centered design including: user interface design, ergonomics, safety and risk mitigation strategies, usability and user experience, accident investigation and root cause analysis activities. During this time, she was instrumental in spearheading several culture change initiatives and innovative solutions for the agency including: the U.S. Governments’ first use of crowdsourcing as a disruptive business model and the development of the Center of Excellence for Collaborative Innovation and the NASA Human Health and Performance Center.
Cynthia is a Certified Human Factors Professional and the Vice President of the Board of Certification in Professional Ergonomics. She received her B.S. and M.S. in Human Factors Engineering from Clemson University and an MBA from Northeastern University. She has served as an associate professor at University of Houston Clearlake providing instruction in Human Factors and Ergonomics course material. Currently, she provides Human Factors consultation to the Texas Medical Center Innovation Incubator assisting medical device and software startup companies. She also serves on the board of advisors to ORintel for Human Factors and Ergonomics.
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29 – Keith Mitnik – Thoughtful Prep for Winning Cases
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(6 votes, average: 4.83 out of 5)
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In this episode of Trial Lawyer Nation, Michael Cowen sits down with renowned attorney, host of the Mitnik’s Monthly Brushstrokes podcast, and author of “Don’t Eat the Bruises – How to Foil Their Plans to Spoil Your Case” published by Trial Guides. With a $90M verdict, ten 8-figure verdicts, and a ton of 7-figure verdicts under his belt, Keith’s vast knowledge of trying civil court cases is truly extraordinary, to say the least.
Michael hits the rewind button right up front to ask Keith how he learned to become a trial lawyer. Keith recalls how he knew from a very early age that he wanted to become a lawyer, but always assumed he would become a criminal lawyer. It wasn’t until he asked a professor of his about connecting with some of the best lawyers in Orlando, which happened to be partners of his professor, that Keith learned about other opportunities outside of criminal law. His journey to becoming a civil trial lawyer was organic but swift, having interned for the lawyers his professor introduced him to, and trying his first case only 2 months after becoming licensed with the firm. Keith attributes much of his learning back then to being allowed to dig right in and learn from being “in the trenches” versus following someone around for 10 years before getting any “real” experience. It also helped that both his mentors were exceptional lawyers who came from opposite schools of thought, where one was the type to turn over every stone and simply outwork the other side, and the other was a brilliant free thinker in the courtroom. Michael also points out the myth that it is hard to get trial experience these days, whereas he suggests doing what he did in the beginning: get out there and tell other lawyers you’ll try their Allstate cases, and there are a lot out there to get experience from. It is also important to recognize there is value to taking a case to trial well beyond the verdict or settlement that is reached, especially for attorneys looking to get experience. Keith also advises young lawyers going into the courtroom that “it’s not about being pretty.” Jurors are not deciding about things based on how polished you are. They are deciding it based on your integrity, believability, honor, honesty, AND the preparation you did to get there. Not just in the hard work, but in the mental preparation of thinking through how it’s all going to play out and putting yourself in the best framework to maximize your chance of winning. And all of that happens outside of the bright lights and intimidation of the courtroom.
Michael notes that one of the things he’s taken away from Keith’s books, podcast, and other teachings, is that he really takes the time to think through his cases and the best way to present them, but asks Keith exactly how he structures his life in a way that allows him to have enough uninterrupted time and deep focus to do the case right. Keith says anyone can learn to be a good talker, but what separates you from the pack is the thinking that goes on before you enter the courtroom. Most of the good talkers he’s seen have just gotten good at repeating the same, somewhat canned “routine,” or have gotten good at memorizing those lines. Whereas the exceptional lawyers separate themselves from the others because of the mental process of planning before they ever walk in and recognizing that the other side is going to put up a good defense, as they always do. Essentially preparing to dismantle their defense and ideally leave them with nothing. Keith goes on to explain not only will that set you apart, but it’s also the fun part of trying a case because you can be working toward solving the problems of the case no matter where you are in litigation. Keith then reminds us of Sherlock Homes and how his greatest gifts were not his analytical strengths or his extraordinary knowledge of science, the arts, math and physics, but rather it was his ability to focus on a problem long enough to solve it. Ideas and practices like this are good reminders not to shortchange yourself on one of the true joys of trial work and will likely also be included in Keith’s upcoming book. Before leaving the topic, Keith talks about one other core principle that he uses on every contested point of a case, which he calls “the wisdom of the whys,” where he asks why are we right and why are they wrong? Of course, you need to be brutally honest with yourself with these points, so you can see the times when the opposition is right on a point here or there, and then be able to take things one step further for those points to ask, even though they are right on one point, how are we still right overall, which Keith refers to as the million dollar question.
The conversation shifts to talk about the methods used to persuade a jury to give full damages in a case, or as Keith refers to it, maximum justice. Keith uses a two-pronged approach for this, the first being that you as the attorney need to believe in the number you are fighting for, and the second being that you need to present the jury with a reasonable damage model. This approach of believing and validating to the jury why your client deserves the damages you are asking for, and in some cases may seem like an extremely high number at first, allows the jury to gain perspective on the numbers instead of smelling the fear of those who might be inclined to just pick a big number out of the air that even they don’t understand or believe their client is deserving of. Keith also suggests if you can lay out a damages model that the jury can understand, even if they disagree with it, they can at least have the ability to discuss it in a format that makes sense instead of punishing you or your client for damages no one believes are just. To drive the point home even further, Keith describes the “pep talk” he’s given himself in the past about why he is trying this case in the first place and the thoughts he needs to be overcome, especially in the early years of a practice, in order to have the full and deserving confidence for what is being fought for in the courtroom. Truly inspiring and passionate words.
Keith and Michael are able to fit almost a full day’s worth of topics into this episode that every lawyer is likely to learn from including connecting with the jury through the power of analogy, tips and tactics for approaching voir dire to establish the ideal jury, the burden of proof, and the detailed strategy Keith uses to prepare for closing that gives him all the confidence in the world by design. Keith also is kind enough to offer an emailed version of a memo he drafted internally for his office regarding putting an end to the defense belittling the pain of your client just because you can’t see it. Michael had a terrific time talking with Keith and is excited to share this episode with everyone.
“Please note the TLN19 discount code mentioned in this show has now expired.”
BACKGROUND ON KEITH MITNIK
Keith Mitnik is the author of Trial Guides’ bestselling book, DON’T EAT THE BRUISES: How to Foil Their Plans to Spoil Your Case. https://www.trialguides.com/products/dont-eat-the-bruises
He is also known for his popular audio tape series “Winning at the Beginning” and for his monthly podcasts.
He is a frequent keynote speaker at seminars for trial lawyers across America.
Keith is Senior Trial Counsel for Morgan & Morgan. In that role, he is in trial almost every month, often times 2 or 3 times a month, trying everything from suits against cigarette companies, medical malpractice, and product cases to car crashes and premises cases.
His list of verdicts is staggering.
He has been a commentator on many national television broadcasts and has been interviewed by Mike Wallace on 60 Minutes.
Keith is recognized for creating and teaching systems that simply work – for any lawyer, in any case.
Lawyers all over the country attribute significant verdicts to his methods.
