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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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80 – Tim McKey – Peak Performance: Developing Systems for Optimum Success
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In this episode of the Trial Lawyer Nation podcast, Michael sits down for the second time with Tim McKey, co-founder of Vista Consulting. As a business consultant who works with law firms, Tim was welcomed back to the show to talk about the effects of COVID-19 on law firms, measuring success using KPI’s, organizational culture, hiring, optimum vs. maximum, new trends in the industry, and transparency at your firm.
Michael and Tim begin their conversation with a look at remote work and how to measure the performance of your team members when you can’t see them. Tim’s solution doesn’t vary whether or not there’s a global pandemic. He insists you should ALWAYS measure success using KPI’s (Key Performance Indicators). This strategy focuses on the output of the employee, not the input. For example, a common KPI for a paralegal is to contact every client and conduct a meaningful check-in every month. Measuring this produces an objective number which can be used to evaluate performance and coach the team member on.
Michael then speaks to his experience using the KPI dashboard, and how he used to struggle to stay on top of it. Tim explains how the highest performing firms have somebody assigned to it, such as an Operations Manager. Some firms find success in the owner managing KPI’s, but Tim says it all comes down to what the owner is passionate about and good at. The goal is to remove as much of the other “fluff” as possible and hire great people to do the rest.
A brief discussion about the merits of having daily meetings leads Michael to ask Tim how to maintain culture when many are still working remotely. Tim explains that it’s even more crucial to intentionally develop culture when you’re not meeting in person. You do this through daily meetings, social events, strong core values, and reminding everyone of their part in the firm. After sharing an enlightening example of a receptionist and their huge purpose in the firm, Michael proudly recites his firm’s core values. He says them at the beginning of every meeting to remind his team members (and himself) of why they do what they do. This has also helped make decisions in the office and staying true to their values.
Tim adds that defining your core values makes the hiring process a lot easier, which leads Michael to dig deeper into Tim’s advice for hiring good team members. Tim insists that finding a good cultural fit is even more important than finding someone with the right skills, because it’s easier to train skills than values. His hiring process, which he calls “intentional hiring,” takes a LOT of time. He brings the prospective team member into the office, has them sit beside people, and explains to them in detail what their values and KPI’s are. Even with this lengthy hiring process, Tim says, “You’ll never bat 1000.” But, as Michael agrees, you can’t measure the cost of a bad hire. This thinking is why his firm is now creating an internal paralegal training program to help him continue to promote from within.
After a conversation that tied culture to college football, which will resonate with Alabama and A&M fans alike, they move on to discuss Optimum vs. Maximum, first in the context of intakes. Most lawyers saw a downturn in intakes during the pandemic, but Tim shares how there are two ways to a grow a law firm – get more cases, or add more value to the cases you already have. Citing The Dip by Seth Godin, Tim explains that while your reservoir of cases may be low, it’s not dry. Work on pushing the cases you DO have over the dam. Michael then ties this in beautifully to how far you push a case. It makes sense to push certain cases all the way to trial, but on other cases it’s better for the lawyer and the client to settle earlier on.
As a business consultant for law firms, Tim is always ahead of the curve when it comes to news and trends that effect how law firms do business. Something he’s keeping a close watch on is non-lawyer ownership of law firms, which recently became legal in both Utah and Arizona. He and Michael discuss the possible consequences of non-lawyer ownership, most notably consolidation of firms into large national practices. Michael says he’s already noticed this happening in large markets, and he’s very glad he found a niche in trucking litigation. Tim agrees within the next 10 years, it’s going to become very hard to be a general firm if you don’t have a huge advertising budget.
Tim and Michael end their conversation by talking about transparency. Tim shares an enlightening “10% rule” that he encourages every lawyer listening to consider. And while he falls on general transparency as much as possible, he acknowledges some limits to that.
If you’d like to learn more from or work with Tim, you can visit his website, email him at tmckey@vistact.com, or call his cell at 225-931-7045. He also has his annual conference coming up May 6-7 in Dallas, Texas, which will have in person and virtual attendance options.
This podcast episode also covers a creative way to take advantage of the competitiveness of lawyers, why daily meetings and word choice are so important, the problem with traditional recruiters, developing “a discipline” in your team members, why Michael has two types of “clients” at his firm, deciding who can work remotely vs. who needs to work in the office, and so much more!
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64 – Mark Mandell – The Case Framing Mindset
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In this Trial Lawyer Nation podcast, Michael is joined by legendary trial lawyer and author Mark Mandell. Mark wrote the must-read books “Case Framing” and “Advanced Case Framing.” Michael and Mark take a detailed look inside these books, including what case framing is, how to apply case framing, what “I just can’t get over” issues are, using “echoes” in trial, Mark’s trial closing strategy, and the story of the hardest case Mark ever tried.
Michael begins the episode by asking Mark to describe what case framing is. Mark starts at the beginning and explains how when he first started practicing, plaintiff lawyers were basically in “the dark ages.” Mark began looking for new ways to try cases almost immediately, but found each method he tried had holes in it. Then about 15 years ago, he started to study decision science and put together the basis of case framing.
Mark insists case framing is not just a method. As another great lawyer stated and Mark has since adopted, “It’s more than a model. It’s a mindset.” Mark explains how case framing has become a part of him, and influences everything he does both pre-trial and in trial. When he was first asked to describe case framing in one sentence, Mark struggled initially but then settled on, “Every single thing you present at trial needs to be framed and sequenced in a way that focuses the attention of the jurors on the points YOU most want to make.” He goes on to describe how a case is decided by what it’s focused on, so why would you want to focus on anything else? As Mark astutely summarizes, “A case frame is the heart and soul of the case. It gives the case meaning.”
Mark continues with explaining how a case frame needs to have two qualities. It needs to relate to the facts of the case, and it needs to have universal application in our society. He shares the detailed example of how he first came to understand this from the OJ Simpson criminal trial. Mark lists off the issues of the case and explains how they aren’t case frames. After exhausting these, Mark explains how the case frame was actually wrongful accusation and elaborates on why that is such a powerful case frame to use because of both its power and universal applicability.
Michael then asks Mark to explain the next level of case framing, which Mark named “I just can’t get over” issues. Simply put, it’s an issue that if a jury can’t get over, it’s going to guide their verdict. These issues can come from an almost endless amount of places, but they need to embody that statement.
As a follow up Michael asks what every listener must be thinking, what are some examples of defense “I can’t get over” issues and what can plaintiff lawyers do to overcome them? Mark gives a laundry list of examples and directs listeners to his book “Advanced Case Framing” where he details 16 different ways to overcome them. He briefly explains how to overcome these issues by refuting them or by “substituting them” or “overcoming them” with more powerful issues.
Another aspect of case framing Mark discusses in his books is “echoes.” Marks insists this is actually one of the hardest concepts to understand. An echo needs to either support or defend an issue, or Mark says you shouldn’t use it. It can be a document, idea, exhibit, or many other things that cause a good issue to reverberate throughout the jury’s head throughout trial. Mark explains how people need echoes to fully understand something because nobody can pay attention indefinitely. He then provides several examples of echoes he used when trying a DRAM shop case which he says is the hardest case he’s ever tried. Through this example, he highlights the importance of ignoring chronology and starting the case at the #1 “good for you” issue in the case.
The conversation shifts to a discussion of Mark’s different closing strategies. The first of those is that he never discloses his overall case frame until closing. He has numerous reasons for doing this, including that you need to leave something new to tell the jury in closing – and since the jury always goes into closing arguments undecided on something, what could be better to present to them than your overall case frame? His other reasons include rebuttal rules and that your case frame can change during trial, based on how it unfolds.
Mark is also known for using questions in his closing arguments, which Michael asks Mark to explain. Mark offers a surprisingly simple answer – people don’t like being told what to do. Mark continues by explaining that when you tell the jury what to do, YOU become the issue. When jurors come up with the answer themselves, “They own that answer now.” He believes this causes them to go into deliberation much stronger. Michael adds that trusting the jury is both the most liberating and terrifying thing, to which Mark agrees. But, it makes trial a lot more fun AND leads to better results.
Michael and Mark conclude the episode by taking a detailed look at the DRAM shop case which Mark insists is the most difficult case he’s ever tried. Mark walks listeners through the shocking details of the case and explains how he applied his methods throughout. After being told by countless lawyers to drop the case, Mark walked away with a $21.5 million verdict after interest. This story truly needs to be heard to be appreciated.
This podcast also covers Mark’s advice on one of Michael’s more challenging cases, using anchors in trial, secondary case frames, beginning every witness examination with an “I can’t get over” issue, and so much more.
If you’d like to learn more from Mark Mandell, visit his website and purchase his books “Case Framing” and “Advanced Case Framing” here.
Guest Bio:
Mark Mandell practices law at Mandell, Boisclair & Mandell, Ltd. in Providence, Rhode Island. He specializes in catastrophic personal injury, wrongful death, medical negligence, dram shop and products liability cases. He is triple Board Certified, nationally. His certifications are in the areas of Civil Trials, Civil Pretrial and Medical Negligence Litigation. Mr. Mandell is currently listed in “The Best Lawyers in America.” He is a member of the Inner Circle of Advocates. Mr. Mandell is a past president of American Association for Justice, Rhode Island Trial Lawyers Association, and The Rhode Island Bar Association. He is the immediate past chair of the Board of Directors of the Roger Williams University School of Law. He has more million dollar verdicts and verdicts of over $10,000,000 than any other lawyer in Rhode Island history. Mark has written two books “Case Framing” and “Advanced Case Framing”. He has also published 24 articles in national and state trial law journals on a variety of subjects and has lectured in 48 states.
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70 – Malorie Peacock – The Method: Our 9-Step Process for Evaluating & Working Up A Case
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In this Trial Lawyer Nation podcast, Michael Cowen sits down with his law partner Malorie Peacock for an exciting preview of his upcoming Trial Guides book on trucking law. They’ll cover Michael’s 9-step method for case evaluation and detail each of those steps, so you can start applying them to your own case evaluation process.
They jump right into this episode with Step 1- initial triage. Michael explains how he derived the term from battlefield medicine, where patients are triaged based on the severity of their injuries and care is prioritized for the patients who need it most. He explains how trial lawyers only have a finite amount of resources, and the decision to put work into a case or not will effect more than just that case. It also takes those resources away from other cases and your personal life.
Michael then shares an example of how he used to work on automotive product liability cases, but his firm has since moved away from them. He has recently rejected five of these cases, even though they were all worthy cases someone will make money from. He chose to do this because these cases don’t fit in with his current docket, and there are other lawyers who will take them and excel at them because they do suit their dockets. Michael even sends his referral attorney to these other lawyers when the referral attorney brings him a case that he knows they will excel on – something that used to terrify him, but he’s since learned it builds an even stronger relationship between him and the referral attorney.
Before moving on to the next step, Michael clarifies that “Initial Triage” is NOT making a final decision on whether or not to accept the case. This step is simply deciding whether you want to look further into the case. In fact, Malorie clarifies that a lawsuit is typically not even filed until about Step 7 in this process.
Step 2 of “The Method” is to gather all the initially available information on the case. This information varies dramatically depending on the type of case it is, but the main goal of this step is to determine a general idea of the liability stories and issues with the case. Michael also explains the importance throughout this process of continually evaluating the case and asking, “Knowing what I know today, is this a case I would take?” If the answer is ever no, consider dropping the case. They conclude this step by discussing a recent example Malorie had of a case where the client was a great person and genuinely deserving, but the facts they discovered during this process made it a case that did not work on her docket.
Step 3 is to identify and analyze all potential immediate causes. Michael explains this as a brainstorming exercise where you record every possible immediate cause of the crash, even the causes that seem unlikely but are possible (for example, a bee in the vehicle). You then divide these potential causes into columns of “winners” and “losers.” Winners are causes which, if proven, help you win the case. Losers are causes which, if proven, mean you lose the case (or need to neutralize them).
After identifying the winners and losers in the case, you move on to Step 4 – conducting a root cause analysis. Michael explains how this concept was first developed by Mr. Toyota, the founder of Toyota Motor Company. Mr. Toyota decided that instead of fixing things when they went wrong, he would try to find the reason these things were going wrong by asking the “5 Why’s.”
To apply this to a case, you take the “winners” discussed in Step 3 and keep asking “Why?” until you find your ultimate root cause. Michael then shares an example from a rear-end case where he took the winner of “the truck driver rear-ended my client” and found “the company did not take the time or effort to train the driver” to be the root cause of the crash. He continues this process for every “winner” and develops multiple theories before he decides which theory he is going to use.
Malorie then re-emphasizes the fact that in an ideal world, you will not have filed the lawsuit yet at this point. They both agree there are times you need to file the lawsuit early to avoid any destroying of evidence, but if possible you should wait.
They move on to Step 5 – drafting the jury instructions. Michael shares how he used to feel doing this so early on was silly, but has since realized it really helps him design the case because he knows what he needs to prove. Malorie adds that doing this also better prepares you for depositions because you know what questions you need to be asking. She also emphasizes to not only look at liability instructions but also damage instructions. This all boils down to, “What do you have to prove?”
The next step in “The Method” is Step 6 – finding rules and anchors. These are authoritative sources for the rules, answering the question “says who?” Michael explains that this is one of the reasons he loves doing trucking cases, because there are so many rules and publications to use as anchors. The more sources that say a rule the better, because defendants are left with two choices: to say they know the rule and broke it, or to say they disagree with all those sources and have their own rule. Michael and Malorie then discuss numerous examples from different types of cases, showing that this method can be used on much more than trucking cases.
Malorie then asks Michael to clarify what an “anchor” is for those who don’t know. He explains an anchor as what you are “anchoring” your rules to. This is an authoritative source or publication of the rule, such as the CDL Manual, a driving company’s textbook, a store’s rules, an OSHA rule, and more. He then concludes this section by explaining how to arm your expert with these anchors to get the most out of their testimony.
Step 7 is to formulate the discovery plan. This is also where you draft the complaint or petition and plead what you need to get the discovery. For example, if you believe the root cause is negligent training, you need information to prove they have a negligent training system. Then, you formulate the discovery plan based on that. Michael cautions strongly against asking another lawyer for their interrogatories before drafting your own. You need to formulate your own based on your theories to prove what you need to prove. You can then use a form to double check and make sure you didn’t miss anything. Michael and Malorie then agree on a fantastic practice tip which makes this process a lot easier and discuss the importance of brainstorming with colleagues.
As discussed earlier, now is the ideal time to file the lawsuit. Then, step 8 is to continually re-evaluate the case. Malorie highlights the need to do this throughout each of the steps as well and to keep notes on what you’ve done so far to avoid repeating any unnecessary work. Michael then explains how as new facts, research, depositions, and discovery emerges, your initial root cause might not be the best strategy anymore and that’s okay. Malorie echoes this statement and adds that too many lawyers are afraid to ask for what they really want in discovery, and more lawyers should be specific and ask for specific documents referenced in other documents.
The above steps were mostly completed before you have all of the information about the case, which Michael cites to further emphasize the point that re-evaluation is key. He then shares some techniques he’s developed at his firm to ensure this gets done by all of his lawyers.
Michael and Malorie conclude the episode with the final step in “The Method”- test the case. Michael explains how the method of which you test the case varies depending on the value of it and lists a number of unconventional methods to do this on a budget. He then lists the advantages and disadvantages of other more conventional methods, including in-person focus groups and online studies like John Campbell’s Empirical Jury. While no method is 100% accurate, they can give you a good idea of where you stand.
This podcast also covers why you should file a FOIA request immediately, how implementing “vulnerability-based trust” by Patrick Lencioni has helped his firm, how to disprove or neutralize “losers” in a case, how Michael applies parts of this method to his employees, why you should research rules BEFORE hiring an expert, why you need to be constantly re-evaluating your case, and so much more.
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