In this Trial Lawyer Nation podcast, Michael Cowen sits down with 25+ year veteran of the legal industry and founder of eDiscovery CoCounsel, Chad Roberts.
In a legal world where we are document heavy and paperless, eDiscovery sets out to avoid the abundance of obstacles trial lawyers encounter when in search of documents, be it the dump-truck effect of getting volumes of information or the paid search games that are played.
Primarily, people think about documentary evidence which is stored in a digital format, to which the rules have somewhat of a bias toward that type of framework, which tends to be the biggest challenge, explains Chad. He goes on to describe that it is not so much the format by which these documents are held, but rather the sheer volume of content that is available. For those of us who are not experts in e-discovery, not knowing the right questions to ask to receive what is sought after or even what is available to ask for, can make a case challenging. Chad points out one of the biggest “tectonic shifts” in the advantage/disadvantage for discovery really occurred back in December of 2015 with the new Rule 26, pertaining to the proportionality factors that came about under that rule, of which Chad dives deep on along with the ways around it.
Chad continues to reveal the dirty little secret that the more you know about the information structure and how documentation is filed, the easier it is to deconstruct the arguments of it being tremendously difficult for the defense to compile what you are looking for … which, coincidentally, is enormously easy for them to produce. Furthermore, Chad describes the other “human nature” side of the story where attorneys psychologically feel that they are out of their element, mostly because they don’t do excessive amounts of document productions, and are more likely to agree to things that are not best for a case.
Ideally, as Chad describes, his firm is typically brought in at the beginning of a case and start with Electronic Storage Information (ESI) protocols, where the front-end platform is established through discussions regarding agreement of the mutual expectations of those involved in the case, and this, of course, is the best line of defense in counteracting the diversions played by opposing counsel.
The podcast concludes with Michael and Chad discussing the types of cases that make the most sense to bring in a firm such as eDiscovery; and the description that Chad offers on why even the biggest of firms would likely have a significant flaw in their practice if they had the capacity of his firm is enlightening and makes perfect sense when you hear it.
Background on Chad Roberts
Chad Roberts is a seasoned trial lawyer with a career focused on technology, complex litigation, and multi-district litigation. He has been a litigation partner at an AmLaw 20 multi-national law firm as well as a small, boutique trial firm, winning multi-million dollar verdicts as lead trial counsel. His focus at eDiscovery CoCounsel, pllc includes predictive coding technology, discovery jurisprudence, and large scale litigation management. Chad received an Engineering Science degree from the Georgia Institute of Technology and graduated with high honors from the Florida State University College of Law, where he was an Associate Editor of the Florida State University Law Review.
For more info on Chad Roberts visit: www.edcclaw.com
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By Michael Cowen — 2 years ago
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.”
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 (firstname.lastname@example.org), 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.)
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By Michael Cowen — 2 years ago(6 votes, average: 4.83 out of 5)
In this Trial Lawyer Nation podcast, Michael Cowen sits down with an accomplished trial attorney, Jack Zinda, for an inside look at his bustling personal injury law practice. Built from the ground up in a county where seemingly no one wanted to start a law office because the juries are so conservative, Jack has built his practice up to include 3 offices with 63 people on his team, 23 of which are lawyers.
Jack’s humble beginnings working in his father’s restaurant washing dishes and waiting tables, contributed to him becoming a great trial lawyer by teaching him to learn how to talk to people, which he says was “great training.” Michael admits that he actually looks for “waiting tables” on the resumes of his potential lawyers as he understands that such experience comes with being able to deal with people, even when they are being unreasonable, among other reasons.
As they dig in deeper to Jack’s practice, he directly correlates the growth of business to an exercise he did after reading the book “The E Myth” where he laid out a plan for where he wanted his firm to be in the future and worked backward from there in order to develop a plan of action. He also made sure to account for his core values and not giving up practicing law seeing as one of his top motivators for getting into Personal Injury law was to help people, and he never wanted to lose that. Michael and Jack also talk through their views regarding the use of consultants and how egos sometimes get in the way of success in this industry. Jack makes it extremely clear that “none of what [he’s] done is original” and that he’s simply taken what he has learned from others and built upon it to become successful. It also, from Jack’s perspective, comes down to the systems that get put in place and following them consistently; an example being that each lawyer in his firm is highly encouraged to attend two networking events per week in order to continue to build relationships.
As Jack reflects on the continued growth of his practice over the years, one of the most important decisions he discovered was who he hired to work at his firm. To prove his point, he describes the scenario where if you hire the most brilliant and amazing people to work for you in every aspect of your business and you have poor systems in place, chances are that you will likely still be successful. Whereas, even if you have the most robust and well-oiled systems in place, if you hire people who are unmotivated and don’t want to work hard, you are likely to fail. He goes on to say that even experience can be overrated when looking to hire someone. At the core, when looking to add people to your organization, people need to be hungry and driven, they need to be smart and organized, and they need to be hard working. Michael and Jack also talk through their hiring processes to get the “right people” into their firm. Surprisingly, the interview has very little to do with it and sometimes… neither does a candidate’s aspirations of working with your firm!
The conversation shifts to internal systems where Jack has gone so far as to hire a developer to create their case management system to his specifications. And not only has he found it to be a great way to customize his practice to run the way he wants it to but also works as a great training tool for everyone in his firm, even the most seasoned attorneys. Jack points out that even the simplest of things go into the firm’s checklists and procedures such as “read the local rules,” which, as easy as that might sound, he points out that it can be vital when working in as many jurisdictions as his firm does. Jack has also raised the bar on training and development within his firm by creating a position that solely focuses on it. Listening to Jack’s description of how he came up with and implemented this position is likely to deliver shock and awe to anyone who runs a firm, as it did for Michael during this podcast.
Michael wraps up the podcast with the question that is likely on everyone’s mind – How much of a “life” do you get to have, running a firm of this size and as successful as yours? Jack boils it down to really deciding what success means to you, first and foremost. What do you want to get out of the practice (note the sentiment of beginning with the end in mind)? Jack explains that he sets hard and fast rules on family time and personal time and has become VERY intentional about it, down to the alarm on his phone that goes off at 6 pm that reminds him to “go home.” Michael points out that there is also a difference between being in the room with your kids and being present with your kids. Jack goes on to describe how he turns off his phone when he gets home and puts it in a drawer, making it harder for him to somehow “find” it back in his hands, IE: working when he shouldn’t. “Willpower is overrated. I think you’ve got to set yourself up for success by setting the atmosphere to do what you want to do in order to be successful,” which is certainly a great mantra for us all to take away from this conversation with Jack.
John C. (Jack) Zinda is the founder and senior trial lawyer at Zinda Law Group.
Jack has served as lead attorney on a wide range of complex catastrophic injury cases across the United States, including:
- Fire death cases
- Gas explosions
- Wrongful deaths
- Governmental torts, including wrongful death cases caused by law enforcement
- Federal tort claims act cases
- Traumatic brain injury cases
- Commercial litigation
- Motor vehicle collisions
- Premises liability
- Interstate 18-wheeler collisions
- Product liability
As a trial attorney, Jack takes tremendous pride in giving a voice to individuals and families who need help battling Fortune 500 companies and large insurance conglomerates. His firm balances aggression with a strategy to maximize the outcome for clients, and every case is handled with a focus on getting ready for trial. He also knows the importance of communicating with his clients and ensures that they are part of the process. He is dedicated to always putting the needs of his clients first.
A native Texan, Jack graduated with a bachelor’s degree in business and political science from Southwestern University, where he distinguished himself as president of the Interfraternal Council and as a member of the Student Congress, the Student Judiciary, Phi Delta Theta, and the Pirates basketball team.
Jack went on to earn his Juris Doctorate from the prestigious Baylor University School of Law, which is perennially ranked as one of the top law schools for trial advocacy in the nation by U.S. News & World Report. While there, he was one of the finalists in the Bob and Karen Wortham Practice Court Competition.
Over the years, Jack has earned a reputation as a thought leader in the legal industry, and he has been featured as a speaker for numerous groups across the country, including the Brain Injury Association of Texas, the Williamson County Bar Association, and Mothers Against Drunk Driving.
Jack has also benefited his professional community through leadership positions in a variety of legal organizations. He has served as president of the Capital Area Trial Lawyers Association, as a member of the board of directors of the Texas Trial Lawyers Association, and as a member of the American Association for Justice, the Texas Bar Association, the Austin Bar Association, and WCBA. He is also involved with a number of consumer advocacy organizations.Post Views: 10,141
By Michael Cowen — 3 years ago(2 votes, average: 5.00 out of 5)
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/Post Views: 11,217