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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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71 – Richard Newsome – Mixed Method Advocacy: A Hybrid Approach to Sharpen Your Trial Skills
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In this Trial Lawyer Nation podcast, Michael sits down with his old friend and seasoned trial lawyer Richard aka Rich Newsome. Rich specializes in automotive product liability cases and is one of the top lawyers in this area in the country. They discuss Rich’s journey to success, his Trial School, the importance of young lawyers trying cases, how to move on and learn from a loss, and coping with fear and anxiety in the courtroom.
They begin the episode with Michael asking Rich about his journey to becoming one of the best automotive product liability plaintiff lawyers in the country. Rich explains how he began working in a federal prosecutor’s office right out of law school, then transitioned into working at a civil defense firm doing automotive product liability work. His transition into plaintiff’s work came after deposing a family in a particularly heartbreaking seat belt failure case. In that pivotal moment, he realized he needed to be working for the other side and representing people instead of massive corporations. He joined a small practitioner and began “knocking on doors” of other plaintiff lawyers to start trying product liability cases as their co-counsel.
Michael then brings up how automotive product liability is a tough field to get into on the plaintiff’s side, to which Rich whole-heartedly agrees. They discuss the difficulties of product liability cases and offer several recommendations for young lawyers looking to get into product liability including “getting plugged in” through AIEG, working for an experienced lawyer with the capital to try these notoriously expensive cases, and many more.
With the field being this tough and cases being so expensive to try, Michael asks Rich about his case selection process. He replies simply, “At the end of the day, you can’t try a product case for less than half a million dollars.” With that being said, the case needs to meet two guidelines: 1) There needs to be a catastrophic injury, and 2) there needs to be a clear fact pattern showing the plaintiff should not have sustained a catastrophic injury. He goes on to explain how even though “this whole area is fraught with mine fields,” the work is incredibly important for society in regards to policy changes and consumer safety.
Rich and Michael then discuss the importance of taking cases to trial and refusing to settle quietly, which leads them to every trial lawyer’s worst fear – taking a big case to trial and losing. They trade “war stories” of their most memorable losses which still haunt them to this day, but reflect on what they learned from those early losses and how they made them better trial lawyers. As Rich puts it, “When you take a big loss, it forces you to improve your game.”
Rich ultimately blames his biggest trial loss on picking a bad jury, which was surprising to him because he was following the voir dire method of some of the most successful trial lawyers in the country. This led him to get 30 of these great lawyers together for a 3-day focus group to try out different voir dire methods. They found that the most effective method was really a combination of a variety of methods, which is now known as “Mixed Method Advocacy.” Michael agrees and shares his experience of learning that one lawyer, no matter how great they are, does not have the ultimate answer of how to try a case. The real growth is in practicing and learning which methods work best for you, then being willing to constantly adapt and learn new things.
This discovery of Mixed Method Advocacy led Rich to start Trial School, a community of trial lawyers who freely share information for the betterment of the plaintiff bar. Trial School is free to join (yes, completely free), easy to access, and full of incredibly useful information for any trial lawyer.
The conversation then comes full circle to where Rich is today after applying the information he learned from those other great trial lawyers. He shares a story of a wrongful death case he tried in an extremely conservative county. He applied everything he had learned from both other lawyers and his own experiences, which resulted in the largest wrongful death verdict ever in that county. They dive into the details of the case and the numerous techniques he applied, which make this verdict even more impressive.
Michael then asks Rich about how he conquers the fear and anxiety associated with going to trial, a topic which Rich describes as “the great elephant in the room that nobody wants to talk about.” He admits to experiencing it and explains how it stunts your performance in the courtroom. He outlines numerous ways to cope with this including beta blockers, “batting practice,” and many more interesting strategies (even learning some from a hypnotist!). Rich feels so strongly about the need for better fear management in the legal industry that he’s dedicating Trial School’s spring program to the topic.
Michael continues on this point by sharing the strategies he’s learned over the years, to which Rich replies that Michael has a huge advantage over a lot of young lawyers due to his experience in the courtroom. Rich explains this by using an extremely helpful analogy about Nascar drivers which you need to hear to fully appreciate, but concludes with “I think one of the biggest solutions to fear is practice.”
They conclude the episode by discussing the need for young lawyers to get experience trying cases. While this can be a challenge, Michael insists that if you offer to try a firm’s small cases they’ll let you. He explains how if you get in there and lose a few times, you learn that you can survive a loss and gain invaluable confidence along the way.
If you’d like to join Trial School, visit www.trialschool.org to apply. You will need two plaintiff lawyer references and to fill out an affidavit stating you only represent people, but it is 100% free and an incredibly valuable resource to every trial lawyer, both young and seasoned.
This podcast also covers the “gifts” they were given throughout their careers, the importance of visuals in trial, the voir dire technique Rich used in his big verdict, avoiding dogma in trial techniques, and so much more.
Bio:
Rich Newsome is the senior partner of the Newsome Melton law firm and represents people and families in complex civil litigation.
After graduating from the University of Florida College of Law in 1989, Rich worked as a federal prosecutor for the U.S. Attorney’s Office in the Northern and Middle Districts of Florida. Rich left the U.S. Attorney’s Office in 1993 and went to work for a large product liability defense firm in Orlando, Florida where he represented manufacturers. After defending a manufacturer in a case brought by a family who lost a child, Rich felt compelled to leave the defense practice and began representing only families and individuals. Since then, for more than 25 years, Rich’s practice has focused on representing people who have suffered catastrophic or fatal injuries.
In 2001, Rich was appointed by the Florida Governor to the Fifth District Court of Appeals Judicial Nominating Commission and served as the JNC’s Chairman during his term. He is a Past-President of the Orlando Federal Bar Association, Past-President of the Florida Justice Association, Past-Member of the Board of Governors of the American Association for Justice, Past-President of the Central Florida Trial Lawyers Association, and is a member of the American Board of Trial Advocacy.
Rich is a graduate of the Gerry Spence Trial Lawyer’s College and was invited to serve as a member of the College Faculty. Rich is a member of the Florida, Texas, New Mexico, and Oregon Bar Associations.
In 2016, Rich was selected as the “Orlando Personal Injury Lawyer of the Year” by Best Lawyers, a peer review publication. In 2015, Rich received the Steven C. Sharpe Public Service Award from the American Association for Justice, in recognition of his representation of Corey Burdick who was severely injured by a defective Takata airbag. The Steven C. Sharpe Award is awarded annually to one attorney and their client.
In 2017, Rich was appointed to the Constitution Revision Commission by Richard Corcoran, the Speaker of Florida’s House of Representatives. The 37 member Commission drafted and submitted 32 amendments to the Florida Constitution which were placed on the ballot and approved by Florida voters to be part of the Florida Constitution in November 2018.
In 2019, Rich was recognized by the National Law Journal as having won two of the Nation’s 100 largest verdicts in 2018.
Rich is a member of the Summit Council, a national group of America’s best plaintiff trial lawyers. Membership is limited to less than thirty trial lawyers from across the country, is by invitation only, and is extended to lawyers who have a proven record of large jury verdicts and are recognized as leaders of the national plaintiffs bar.
Rich is a founding faculty member of Trial School, Inc., a not-for-profit organization which seeks to foster collaboration between lawyers on today’s best trial advocacy methods and to provide free education and practice for trial lawyers who exclusively represent people and families.
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76 – Benedict Morelli – Never Deviate: Telling the Truth, Trusting Your Instincts & Taking Risks
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In this episode of the Trial Lawyer Nation podcast, Michael sits down with legendary trial lawyer Benedict Morelli. With several 8 and 9-figure verdicts under his belt from a wide range of civil litigation areas, Ben’s track record as an attorney and advocate is known across the country, from suing Bill O’Reilly for sexual harassment and representing Tracy Morgan in his trucking case against Walmart. He and Michael discuss Ben’s story and path to success, a number of his high-profile cases, how he connects with the jury, and so much more.
Ben’s legal career started over four years before he passed his bar exam, while he was working at a law firm in an administrative role. There, he had the opportunity sit in on several jury trials and jury selections. Because of this, he had a head start in figuring out what strategies worked for him, namely authenticity in front of the jury. He continues to hone his craft today by researching other cases and their results. Interestingly, he doesn’t focus so much on the amount the jury awarded. Instead, he digs deeper into the facts of the case to analyze how great the verdict really was and encourages his team of young lawyers to do the same.
After Ben explains that he simply refuses to play by the insurance’s rules of offering about half of what you ask for, Michael digs deeper into where Ben gets his courtroom confidence from. Ben uses something he calls “Ben Morelli’s personal moot court” and seeks feedback from his friends and family. He also references Tracy Morgan’s trucking case against Walmart, eloquently stating “When I have a royal flush, I don’t play it as a pair of two’s.” If you have a strong case in a good venue, have the guts to stick to your number while also analyzing the risk vs. the reward.
Ben is now at the point in his career where his reputation precedes him, and he shares a SHOCKING story from his case against Live Nation where it worked to his advantage.
Michael then digs in to one of Ben’s biggest strengths, how skilled he is at connecting with the jury. His short answer is, “I am them. I’m exactly them.” He grew up like most of them, doesn’t talk down to them, and ALWAYS tells them the truth. He also NEVER uses jury consultants or a mock jury, which is in stark contrast with how many of our previous guests choose a jury. Instead, he goes into voir dire with no bag, paper, or even a pen and ALWAYS sticks to his theory. He insists that his own instincts and knowledge have served him better over the years, and that “When I bet on the jury, I win.” While a unique approach, this technique has served him so well that he’s been told my numerous judges that he won the case in jury selection. He concludes this topi by clarifying that the most important thing is that you stick to who you are, and find what techniques work for you instead of “drinking the Kool-Aid.”
Ben is also unique by today’s standards because instead of specializing his practice, he takes on a wide variety of cases in different practice areas. His philosophy on this is that if it’s a civil case, he can learn it. He also genuinely enjoys the challenge and takes a lot of pride in the diversity of his practice, something he urges other lawyers to consider before they specialize.
Michael then asks Ben how he motivates and educates his large team of young lawyers. Ben describes his daily meetings with his lawyers and also with his staff. “I’m never too important,” he continues. Every attorney in the firm knows he will personally read every single thing they write. Michael agrees with this philosophy, and he and Ben discuss why it’s so imperative to stay involved in the litigation aspect of your firm, even after you’ve built up a great team.
The pair ends the episode by discussing two of Ben’s star-studded cases – Tracy Morgan’s trucking case against Walmart and suing Bill O’Reilly for sexual harassment. After sharing what it was like to represent a celebrity of Tracy Morgan’s caliber, he explains how suing Bill O’Reilly was one of the most nerve-wracking cases he’s ever had. They went after Ben, his wife, and his practice “with a vengeance.” The details of this story are shocking and Ben’s decision to stick with the case is truly inspiring.
This podcast also covers individual case lawyers vs. mass tort case lawyers, how Ben orders his witnesses (and why it’s SO important), how to internalize what your client’s been through, the power that plaintiff’s attorneys have, Ben’s record-breaking sexual harassment suit verdict, why Ben chose not to specialize his practice, and so much more. This episode is full of insightful and inspiring stories that are well worth the listen!
Guest Bio:
Benedict Morelli is one of the most successful plaintiff attorneys in the country, securing numerous multimillion-dollar results, including a $95M verdict in a sexual harassment case and a $102M verdict against Live Nation. He also helped negotiate a $265M settlement – the largest settlement for a passenger railroad accident in US history – for victims of the 2015 Amtrak train derailment. Mr. Morelli and his firm often litigate high-profile cases, including representing comedian Tracy Morgan in his lawsuit against Walmart and being one of the first to successfully sue Bill O’Reilly and Fox News for sexual harassment. He has deep experience in a variety of civil matters, including personal injury, truck and auto accidents, employment discrimination, medical malpractice, and product liability.
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14 – Steven Gursten – Remarkable Customer Service = Extraordinary Law Practice (and Life)
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In this Trial Lawyer Nation podcast, Michael Cowen sits down with Michigan trial lawyer and owner of Michigan Auto Law, along with 3 other law firms, Steven Gursten. As an early adopter of internet legal marketing, Steven has built his firm to become extremely successful in Michigan and is recognized as having the TOP verdict in the state 8 out of the last 12 years, as well as success throughout the country.
Steven recalls in the first 10 years of his practice making it a goal to be a great trial lawyer and have attorneys all over the state refer him cases. To get there, he still recommends lawyers set aside 30 minutes to an hour every day to read and study some area of law. IE: Mondays would be opening statements, Tuesdays might be cross examining, Wednesdays – closings, Thursdays – medicine, and Fridays he wanted to become an expert on the Michigan no-fault law. Even now, Steven utilizes the massive amounts of information he’s accumulated, learned from, and still references. Similarly, Michael recalls and shares a story about learning through the process of proofreading a book another attorney in his office was writing and both agree the continuation of learning after passing the bar is extremely important.
Fast forwarding from 4 attorneys in his first practice to now having 20 attorneys across 4 diverse practices, Michael and Steven discuss the two very different disciplines of running a law firm vs. trying cases, both of which they do very successfully. He also goes into detail on some of the systems he has put in place as a solid foundation, in order to handle the hundreds of cases coming through his different practices, and how much he has embraced different technologies throughout the years. Steven also brings up a great point that in today’s online society, good lawyers will now more than ever be rewarded and bad lawyers will be punished because of Google reviews, Avvo, and other similar review sites, which makes customer service even more important. Meanwhile, those same systems are the ones which help great law firms stay on top of their cases and communicate with their clients to avoid the potential pitfalls easily avoided through systematic communication. Topics such as discussing what not to post on social media or making sure the client is going to their doctors’ appointments can have hundreds of thousands of dollars’ worth of impact on a case when communication is stagnant. Steven goes on to say that the same type of communication can also have a huge impact when it comes to keeping referring attorneys in the loop on shared cases, citing a recent case he referred to Michael in which he was extremely impressed with the follow up.
The conversation shifts when Michael asks Steven how he’s able to have the other 19 attorneys in his office use all of the systems he has in place. Without hesitation, Steven points to the culture of his firm which has guided everyone in the same direction, keeping them on the same page, regarding the inner workings of the practices. He is also quick to point out that establishing this type of culture starts with the ownership of a firm, and regardless of tenure no attorney should ever be above talking with their clients, which is something he tries to instill in each of his attorneys. Steven also shares some of the small things they do to build the culture, such as whenever they receive a great review, they send it out to everyone in the firm to further demonstrate its importance to the firm as a whole and praise those who are walking the talk.
So many great insights on running a successful firm (too many to list in this brief description) come from Steven and Michael throughout this episode, even down to the psychological testing Steven does with everyone in his firm which helps shed light on their ability to deliver a quality customer experience. Steven also shares several thoughts for those who are trying to build their practices, which any attorney can leverage to not only work in their practice but also on their practice.
The conversation transitions to traumatic brain injuries (TBIs) to which Steven again delivers a mountain’s worth of information in rapid succession. Steven is gracious enough to lay out not only the basics of how TBI cases are identified but also the more intricate and subtle ways clients who’ve suffered from a TBI are not only identified but also misunderstood, as Michael asks him questions to bridge the gap between customer service and delicate TBI cases. Steven’s view of customer service is engrained so deeply in him that even during this part of his conversation with Michael, he can’t help but note its importance when working with those who have suffered a TBI. Things like displaying a positive image online in order to be seen as approachable, being cognizant of the tremendous diplomacy it takes to work with clients who have had a TBI, and doing everything in your power to genuinely make things as easy as possible on the them. Perhaps THAT is why he doesn’t encounter many of the problems or issues other attorneys do.
Background on Steven Gursten
Steven Gursten is recognized as one of the nation’s top attorneys handling serious auto accident injury and wrongful death cases, and No-Fault insurance litigation. He is head of Michigan Auto Law, the state’s largest law firm handling car, truck and motorcycle accident cases for more than 50 years.Steven has recovered top-reported verdicts and settlements for car and truck accidents for multiple years, including a $34 million truck accident settlement in 2014 with Ohio co-counsel. In this capacity, Steve was named a Michigan Lawyers Weekly “Lawyer of the Year,” after recovering one of the largest truck accident settlements in Michigan history, as well four other top-reported trial verdicts in previous years.
Steven frequently lectures at legal seminars throughout the country on trial advocacy, trucking litigation, and traumatic brain injury cases. He is the annual moderator and speaker at the “Advanced Motor Vehicle Litigation Seminar,” offered through 360 Advocacy. He is the current President of the Motor Vehicle Trial Lawyers Association and a Past Chair of the American Association for Justice (AAJ) Trucking Litigation Group. Steven is also the chair-elect of the AAJ Traumatic Brain Injury Litigation Group.
In addition, he serves on the executive boards of the Melvin M. Belli Society and represents the state of Michigan in the Taos Trial Lawyers Society, an invitation-only group of distinguished trial attorneys from around the country.
For more info on Steven Gursten visit:
https://www.michiganautolaw.com/firm_profile/attorney-steven-gursten/
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