In this episode of Trial Lawyer Nation, Michael Cowen sits down with a nationally renowned trial consultant, Artemis Malekpour whose strength lies in her trial litigation strategy consulting. She describes it by boiling it all down to, “we help your case.”
However, the sheer magnitude of the scope of her work ranges from before you even file a case, to the end result, and everything in between, including focus groups, trial strategy, mediation strategy, discovery, pre-suit issues, voir dire, and opening statements to name just a few. Artemis describes her entry into the profession as coming initially from a background of psychology and starting down the pre-med path when realizations came to her, along with a pretty dramatic chain of events, that aligned her studies with a passion toward the legal industry. Her dilemma with the situation turned into learning more and taking in feedback from many different subsequent cases and being introduced to them from the inside, which eventually confirmed she was heading in the right direction for herself.
Empathizing with Michael, who also has a psychology degree, Artemis describes several of the cases she’s been through where the emotions start to take over and the desire to help everyone kicks in. Both Michael and Artemis give several examples of intake processes now firmly in place to help avoid accepting cases which are not suitable to take on both for the good of the firm or for the good of the client.
Artemis also opens up about her focus group experiences across the country, averaging sometimes around 40 per year, and divulges some of the trends she is seeing as a result of our current political climate. An interesting moment is a conversation between her and Michael about the power of silence, be it in the courtroom or with a focus group, and how it can be used to benefit your case. And while this technique and others are discussed, Artemis reinforces the importance of understanding there is no “magic formula” for success and describes what she believes the best trial lawyers do after trial.
The insights Artemis shares throughout the conversation are not just insightful, but practical toward any case. Michael jokingly refers to these insights as a “list of the things we do to screw up our own cases.” But we also know even that depiction is sometimes an understatement, which is why talking with Artemis was such a pleasure in this episode. She tells it like it is, and we all come out better on the other side.
Background on Artemis Malekpour
Artemis Malekpour is a partner in the litigation consulting firm of Malekpour & Ball. With a background in psychology and psychiatric research, she specializes in focus groups, case strategy, damages, and jury selection. Artemis did her undergraduate work at the University of North Carolina at Chapel Hill, then earned a Master’s in Healthcare Administration from UNC’s School of Public Health and a law degree with honors from Duke University. She has consulted on a wide variety of cases across the country, with a knack for identifying potential landmines, incorporating her knowledge from years of watching jury deliberations and talking with jurors.
For more info on Artemis Malekpour visit https://www.trialguides.com/authors/artemis-malekpour/
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By Michael Cowen — 4 weeks ago
In this episode of Trial Lawyer Nation, Michael Cowen sits down with former defense attorney for UPS and current plaintiff attorney, Michael O’Neill. This show covers an array of topics, including the defense’s advantages in catastrophic injury cases, why O’Neill switched sides of the courtroom (and why it made him such a good plaintiff attorney), what companies can’t defend against, and why referring out cases can make you more money.
The episode kicks off with Cowen asking O’Neill why large companies use the same defense firm for cases around the country. O’Neill says the lawyer needs to know a very specific field, know the company well, and have a consistent defense. O’Neill would receive a call in the middle of the night or on a weekend and would need to travel immediately to the scene of a crash. UPS would refer to this as “boots on the ground.” He emphasizes that marshalling evidence while it’s fresh is pertinent to the success of any case. O’Neill shares a story of a time where he went to the scene and pointed out a detail the police missed which would have hurt their case on liability. He was also there while the police were writing their reports and describes how he could influence what was written. Cowen and O’Neill discuss the defense’s role in shaping the narrative of the case from the start, the role of psychology with the first responders, the defense’s advantage in this, and what plaintiff lawyers CAN (but most DON’T) do to combat this.
Cowen then asks what everyone’s thinking; why did O’Neill switch to the plaintiff’s side? O’Neill replies that the curiosity has always been there. He then describes a scenario, not uncommon to him, where he had a defense verdict on a case he believed “that’s an easy 7-figure case that should have been won and we zeroed them.”
The conversation shifts to what companies CAN’T defend. Both agree on exposing poor training programs as the key to winning “nuclear verdicts” in commercial vehicle and trucking cases. They discuss this and other factors which make the case about the 3 months before, as opposed to the 5 seconds before the crash. O’Neill then brings up a defense trucking podcast by FreightWaves which recently discussed the defense’s fear of “the second lawyer” and the impact of referral attorneys on the insurance industry. As a “second lawyer” himself, Cowen shares a recent example of an insurance company who learned once he became involved all prior negotiations at a much lower number were out the window.
One of the most important details for a successful catastrophic injury lawyer to accomplish is to make the case about the company, not the individual. Cowen shares a story of a case where the CMV driver was high on meth at the time of the accident. The case against the driver was already strong, but when asked by a colleague why he was working so hard on the case Cowen replied, “It doesn’t take much money to teach a meth head a lesson. It needs to be about the company and what it takes to teach the company a lesson.” O’Neill echoes this with another great example of a strong case that he made even stronger by putting in the work.
O’Neill and Cowen then praise trucking trial lawyer Joe Fried and how instrumental he has been on creating the current “abundance mentality” of the Academy of Truck Accident Attorneys (ATAA). The ATAA abundance mentality encompasses the idea that there are plenty of trucking cases to go around, and we all perform better when we share information and establish good law. “The tide raises good ships,” O’Neill eloquently responds. When comparing this to the defense bar, O’Neill says the difference is night and day. Information on the defense side is kept from one another because there are fewer clients and essentially everyone can be your competition. He goes as far as to say that the way the plaintiff’s bar shares information “terrifies the defense.”
They then move into a discussion on the transition process from defense to plaintiff lawyer. Cowen asks O’Neill what it has been like changing into a role where he works at a firm that now funds cases and isn’t paid by the hour. O’Neill discusses some transitional difficulties, but insists he has been made confident through his experiences as a defense attorney, stating, “You start giving big checks to mediocre lawyers and you start to wonder, why am I not on the other end of this conversation?” Cowen then describes his history of funding cases by sharing his expertise in finance management and smart firm growth.
The conversation concludes with a discussion on package car cases- What makes them different from trucking cases? Why can they be so complicated? O’Neill highlights the necessity for specialized knowledge in this area, stating, “There’s a million ways to skin a cat, but you have to know how to skin the cat.” Because shipping companies usually work with subcontractors as delivery drivers, it can be difficult to make the case about the company. O’Neill shares valuable insight into how he’s overcome this barrier.
This episode also covers efficient docket size, the order of your depositions, networking, direct to public marketing versus B2B marketing, and much more.
ABOUT THE GUEST
A northeastern Pennsylvania native, Attorney Michael O’Neill handles catastrophic injury litigation, including representing those who were in motor vehicle and truck accidents, medical malpractice, product liability, and premises liability. A former senior litigation associate at DLA Piper LLP, and a founder partner at a national litigation boutique law firm, O’Neill has served as first chair trial attorney in over 25 jury trials, or their equivalent, in ten different states. All of these complex litigation matters involved disputes of seven figures or more and resulted in successful verdicts or settlements.
With more than 20 years of complex litigation experience, O’Neill has appeared multiple times on NBC-10 television in Philadelphia, numerous radio broadcasts and national podcasts as a legal expert and to discuss cases he is handling on behalf of catastrophically injured people.
O’Neill is admitted to the Supreme Court of Pennsylvania, Supreme Court of New Jersey, and the Supreme Court of New York, as well as the United States District Court for the Eastern District of Pennsylvania, Middle District of Pennsylvania, Western District of Pennsylvania, District of New Jersey, and the Northern District of Texas.
O’Neill also has a distinguished military service record as a veteran of the United States Army. He is an honors graduate of the U.S. Army Officer Candidate School and the U.S. Army Aviation and Warfighting Center, was commissioned as a second lieutenant and trained to fly helicopters for the Army and the Pennsylvania National Guard. He remained active in the National Guard until 2005 and is a member of the First Troop Philadelphia City Cavalry, one of the oldest recognized organizations in the United States military.
O’Neill earned his Bachelor of Arts degree at the University of Scranton and received his Juris Doctor from the Villanova University School of Law in 1998. While at Villanova, he focused on litigation-related curriculum and after graduation taught trial advocacy for seven years as an adjunct professor. A lifelong athlete, he played collegiate football and baseball and was inducted into the Wayne/Pike County Area Sports Hall of Fame in 2018. He also has held a civilian aviation license for more than 30 years.
Michael O’Neill joined the offices of Fellerman & Ciarimboli in Philadelphia on March 1st.. He can be reached by phone at (215)776-5070 or by email at email@example.com.Post Views: 493
By Michael Cowen — 12 months ago(11 votes, average: 4.91 out of 5)
In this episode of Trial Lawyer Nation, Michael Cowen sits down with automotive products liability attorney, Julian C. Gomez, to discuss his expertise on product cases, specifically dealing with autonomous vehicles (AKA: Robot Cars). Most attorneys can relate, but the gist of every other talk Michael has ever heard on this topic, before Julian’s, was that we’re going to get robot cars, they’re never going to crash, and they’re going to put everyone out of business in 5 years. This is certainly what the automotive industry is trying to promise, but the data we have to date suggests otherwise.
Julian’s beginnings, getting into the field of automotive product cases, started back when he clerked for a judge who was the first in the country to try a Ford Explorer/Firestone case. He was able to sit through the trial and learn from some of the best lawyers in the country, which sparked his interest and set him on this path. When Julian started doing automotive product cases, he noticed the engineers were starting to address the legal issues as opposed to the engineering issues behind them. He points out that the engineering is really not all that difficult – the vehicle uses data gathering devices, puts the information into a data processor, which processes the data based on an algorithm, then an answer or result is spitting out, and makes the vehicle do something. Getting too far into the details can sometimes overcomplicate things, which Julian compares to the area of autonomous vehicles and states “I don’t have to be a computer engineer, to know that my computer is broken or to know that it’s working.”
Julian then describes the different levels of crash avoidance technologies (1-6) to include all sides of the vehicle along with the various types (signaling warnings to taking full-blown actions with the vehicle). He goes on to talk about how the levels start to gray out based on human data input as well as how there really are no “driverless” vehicles on the road today, despite what you hear on the news. He also discusses a recent AAA report addressing the confusion regarding the different types of autonomous systems due to the industry, and manufacturers, because there is not a standardized naming structure for these systems.
Interestingly, Julian explains the current way they are measuring the level 3-5 type autonomous vehicles is through disengagements, where the human driver has had to take over the car’s actions instead of it driving itself. In comparison, Apple had roughly 1 disengagement every 1.2 miles whereas, on the opposite end of the spectrum, Waymo had roughly 1 disengagement every 10,000 miles. And while there is a huge disparity between the top performers and the bottom, and numerous tragedies throughout the industry, Julian points out the real problem is there haven’t been enough vehicle miles driven to know how safe they are going to be. He also talks about the millions of vehicle miles driven each year compared to the thousands of deaths that occur on the road, and then extrapolates the data from when Uber had its recent fatality, based on the number of vehicle miles driven by autonomous cars at that point, to determine we would be experiencing around 1.6 million deaths each year. He brings this point home by stating even if you cut that number in half multiple times, it’s still much more than what is happening today on our roads.
Another problem Julian points out is the conflicts that occur between an objective algorithm system in the computer within the car working with a human subjective system. He gives a great example of how we’ve all seen cars, even before we started driving, interact in different ways when the driver is planning to turn right (IE: roll slowly through the light, even if it’s technically not the correct way). As humans, we are able to gauge how much space/time we have between our vehicle and the vehicle turning in front of us, whereas autonomous cars look at it from the standpoint of what the rule is and how it will obey that rule.
Michael points out how the computers can only do what they are programmed to do, making the job of the engineers to think of every possibility and then the safest possible outcome for each of the scenarios unfathomably enormous. Julian notes that as humans, the second most common function our bodies perform (breathing being the first) is seeing. We have been “seeing” and processing things through our eyesight for our entire lives, since day one. Some even suggest for a computer to process the amount of data we have seen in our lives, the computer would be the size of a warehouse, much less the size of a car, or the size of a computer in a car. Julian also discusses the responsibility to predict the unknown, which is nearly impossible, as if to say “tell me everything you don’t know.”
Michael and Julian recount the unfortunate incident in Arizona with the self-driving Uber car, the details of which are likely not what you might have heard previously, nor are they what you might expect (hint, hint – the frontal collision system was turned off, but by whom? Listen to find out). Also, perhaps somewhat shockingly, was the fact that the case was settled in 10 days, which Julian notes, might give you a sense of how Uber felt about their culpability in the case. Michael and Julian also discuss the perceptions of the “auto-piloted” cars as set forth by the marketing departments of the vehicles and how they are not exactly in line with what the cars are actually equipped to do.
The episode concludes with Julian revealing his process for evaluating which product liability cases to take on as well as the “why” behind them versus simply going after damages, the results of which could do more harm to the legal industry than good when the wrong type of cases are pursued. They also make some predictions as to the future of mass-produced autonomous vehicles and where they’ll likely be used. As this technology continues to evolve, this episode drives home (no pun intended) the vast areas of the unknown in the auto industry in regards to where blame should be placed in such an environment where humans are sharing responsibility with computers, along with the engineers and companies who design them, to keep our roadways safe for everyone.
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BACKGROUND ON JULIAN C. GOMEZ
Julian C. Gomez is an attorney in McAllen, Texas. Julian was raised in South Texas. Julian is a ninth-generation Texan and his family still ranches on their original Spanish land grant. Julian graduated from Texas A&M University with a degree in Agricultural Economics and was a member of the Corps of Cadets while at Texas A&M.
After graduation, Julian spent time on the floor of the Chicago Mercantile Exchange as an analyst in the cattle futures and options pits. Julian graduated from the University of Houston Law School in 2000. Julian was a law clerk for Filemon Vela, United States District Judge, Southern District of Texas, Brownsville Division and a law clerk for Reynaldo Garza, United States Circuit Court Judge, Fifth Circuit Court of Appeals. After his clerkships, Julian founded The Julian C. Gomez Law Firm and has practiced there since.
Julian has a national and international practice focusing primarily on catastrophic product liability and negligence cases, mass torts, and contingent commercial litigation. Julian is a past Chairman of the American Association for Justice’s Products Liability Section (the largest organization of plaintiffs product liability attorneys in the U.S.); on the executive board of and the vice president of continuing legal education for the Texas Trial Lawyers Association, on the board of directors of and co-chair of continuing legal education committee for the Attorneys Information Exchange Group (the largest organization of plaintiffs automotive product liability attorneys in the U.S.); has served on plaintiffs’ committees in national mass tort litigation; is a graduate of Gerry Spence’s Trial Lawyer’s College; is a graduate of the American Association for Justice’s Leadership Academy; is the special liaison to the National Highway Traffic Safety Administration on behalf of both American Association for Justice’s Products Liability Section and the Attorneys Information Exchange Group; regularly speaks at international, national, statewide, and local continuing legal education courses on topics ranging from federal jurisdiction to products liability; is the 2017 Men’s 40-44, –69k Texas Weightlifting Champion; and has a 3:45 marathon time.
Julian is a U.S. Coast Guard licensed captain, is on the board of directors of the USA Weightlifting Foundation (the foundation for United States’ Olympic weightlifting athletes) the board of directors of McAllen Educational Foundation (the foundation for the McAllen Independent School District), and the board of directors of the Texas International Fishing Tournament (the largest fishing tournament in the State of Texas). In his free time, Julian loves spending time with his number one legal assistant, his daughter, Averri; and is an avid outdoorsman, rancher, photographer, snow skier, and tarpon fly-fishing angler.
For more information on Julian C. Gomez visit his website at https://www.jcglf.com/Post Views: 5,265
By Michael Cowen — 1 year ago(6 votes, average: 4.83 out of 5)
In this Table Talk episode of Trial Lawyer Nation, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Malorie Peacock, to answer the questions of our listeners. This show focuses on how to prove your client’s harms and losses at trial.
The first listener question is regarding the idea of whether 3X the medical bills is typically what you use to determine damages or does that only apply in certain cases? Michael recalls being taught the 3X “rule of thumb” back when he was first starting as a trial lawyer, but since then, no longer does for several reasons. First and foremost, times have changed along with insurance company practices. If an insurance company or defense attorney does start to talk to you about 3X medical bills, it’s likely because your case is worth a lot more than that. Instead, Michael focuses on what a jury might do when they look at each element of damage (pain, mental anguish, impairment, or whatever the measure of damage is in a particular state) individually and determine what they feel compelled to put in each blank. That, paired with what Michael calls “piss off factors” based on things the defense might do to compel a juror to give full justice for, becomes a number he’d like to keep as high as possible. Of course, he also takes into account whether his client is for some reason not likable or the defense is super likable, which can also affect the jury’s motivation in an adverse way for his case. Malorie also brings up another important note on the effects of jurors taking into consideration the percentage of fault even though they are instructed not to do so. To which Michael elaborates a little more on how to potentially work the messaging of that to the jury.
The next question by our listeners is how do you work up damages, especially in a smaller case that doesn’t warrant bringing in experts or producing lots of exhibits? Michael starts to answer this question by clarifying that experts generally do not help work up damages, but rather help to prove calculations on future medical expenses or a vocational loss. Having said that, with regard to the human and non-economic damages, he believes people who come in and talk about your client, how they were before, what they went through, and what they are like now can have the biggest impact. This also doesn’t cost any money toward the case. It does, however, take a lot of time in order to visit with these people to talk through what they know of the client before, during, and after, as well as collect photos or videos showing the client in a different state prior to suffering damages, etc. Michael discusses how this approach, even by taking the time to meet with people and learning your client’s story better, will make you more authentic in the courtroom which can have a profound impact on your case. Malorie sums this point up reminding us that all of our clients are more than just their injuries.
The next question they explore is regarding a wrongful death case without economic damages, which Malorie takes the reins on and starts with conveying just how hard it is to put a number on life when no amount of money will ever replace someone’s loved one. She goes on to elaborate that although you can do focus groups, they are not truly predictive. It will always boil down to the 12 jurors you get on any specific day in court who will ultimately put that number on a case. Michael adds that liability is what really tends to drive the number in wrongful death cases and it sometimes becomes very hard to have a conversation with the surviving family member(s) on the difference in the value of life versus the value of a case. He also shares how going to trial in a death case is extremely tough for the family as they relive one of the most painful events in their lives, which places a real responsibility on us as lawyers to make sure we are doing the right thing. Whether that means turning down an offer that is not sufficient to go to trial to fight for more and making an informed choice while understanding upfront the process and pain that will likely come with going through the details all over again. Malorie also describes the importance of knowing your client (a common theme throughout this episode) and understanding their goals, hopes, and struggles for their future to be able to help guide them through the conversation about money.
Proving grief is another topic Michael and Malorie explore with the belief from some jurors that everyone dies at some point. They both agree that there is a definite difference between dying when it’s time and dying when it’s not your time because of a tragic incident. Michael also points out the balancing act that occurs when you don’t want to “torture” your client and make them cry by bringing up all the pain and suffering they encounter now that their loved one is no longer here vs. focusing on the hopes that were and the plans for the future that have now changed because of the actions of someone else. He also points out that this is a good time to utilize experts like grief counselors and let them talk about the pain and suffering your client is, and will, experience due to the loss as well as the grieving process and the natural cycle of grieving to help paint an appropriate picture for the jury. They also give several other examples of ways to express the pain and loss without having to pull tears out of the surviving family members directly.
Michael and Malorie continue their abundance mentality by sharing so much great information in this episode on topics like when to submit and when not to submit a medical bill toward damages; avoiding the status quo and navigating a case to motivate a jury to give your client the justice they deserve; where do your client’s harms and losses fit into the greater story of the trial; an ideal “3 act” trial story through the juror’s eyes; how not to present your client’s harms and losses in a vacuum; how to get your client’s actual story (hint – it’s not what you might think); tips on utilizing psychodramatic methods; expediting the process of spending time with your client to understand their story; how Pareto’s Law can be applied to your docket; and so much more.
These Table Talk episodes could not happen without the interaction and questions that are submitted by our listeners. We are eternally grateful for and encourage you to continue to send us your thoughts, ideas, and questions as we love sharing our experiences with all of you.
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