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In this Trial Lawyer Nation podcast, 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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38 – Wayne Pollock – The Court of Public Opinion
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In this Trial Lawyer Nation podcast, Michael Cowen sits down with attorney and founder of Copo Strategies, Wayne Pollock, for an in-depth discussion on the court of public opinion [copo] and how it can affect your clients, cases, firm, and reputation.
Having graduated college and working in public relations for a PR firm for about four years, he was introduced to the legal world through one of his clients at the time, Fox Rothschild, now an AM Law 100 law firm, which inspired Wayne to go to law school. Graduating law school from Georgetown University, he went to work at a big law firm for six and a half years as a litigation associate while he never stopped liking public relations. Wayne describes himself as an attorney focused on the court of public opinion, which really means he helps other attorneys and their clients, ethically, strategically, and proactively engage public opinion in order to help those clients resolve their cases favorably. Wayne does this work to help the attorneys build their practices, he also goes in as a consultant to law firms, and other times as limited scope co-counsel to the actual clients. Overall, his goal is to help clients resolve their cases favorably through the media and through outreach to the public, essentially blending media strategies with legal strategies, and ethical compliance with defamation avoidance.
Wayne describes the launch of this offering from his firm, mainly because he didn’t see this kind of fixture being offered to attorneys and clients. Often, he describes seeing, attorneys and clients who are talking to the media in connection with active litigation, but they didn’t seem to have a strategy. They don’t seem to be thinking about what’s happening in court when they’re saying things publicly. They certainly aren’t always thinking about the ethics. And he’s also seen plenty of press releases where the PR firm or the law firm is clearly defaming the other side. So, he took that need in the market and thought his services could be used in a different way, thereby launching his firm a couple of years ago, to do just that.
When it comes to being in the media, Wayne admits it’s daunting for many attorneys, mostly because unlike a normal litigation practice, there are no rules. There are literally no rules of evidence, no rules of procedure, and it’s somewhat of an “every person for themselves” type environment, and that’s difficult for attorneys to get used to. He points out there are obviously ethical rules and defamation rules, but in terms of how you engage with the media and what you say, there’s really no set core set of practices that are established. Regardless, Wayne still encourages his clients, and their end clients, to always be thinking about the court of public opinion and engage it head on as a part of their legal toolkit, because often times, they find that what happens in the court of public opinion impacts what happens in the court of law in this era of social media, online news, and the viralness of both. From Michael’s previous experience, he’s also found competing mindsets of the ego of wanting to be on TV and wanting to be quoted, pitted against the fear of not wanting to cause harm to anyone, especially his clients. Wayne goes on to discuss the privilege issue and how it is a huge problem when law firms hire outside PR firms. He explains it all in detail, but once he realized that he could help get around the privilege issue by serving as an attorney, the light bulb went off and he said to himself, “I guess I’m just going to have to do this myself.”
Wayne defines the “court of public opinion” as people who are not parties to a legal dispute, but whose perceptions of the dispute could impact how the dispute is resolved and how the litigant’s reputation or prosperity could be affected. He goes on to describe the many different types of pools of people who can be affected by the court of public opinion, as well as organizations who stand for the same kind of qualities a client, or their case, do which can help bolster a case by piggybacking on the case and drawing more attention to it. Wayne also describes the effects of the ripple far and wide when information is spread in the court of public opinion, whether it is compelling others to call in with crucial evidence or even developing additional suits with others who have experienced the same thing being tried in a current case, all of which adds to the snowball effect that is created. He’s even had judges tell him they will dot their i’s and cross their t’s that much more closely when they know they’re involved in a high-profile case because they know more eyeballs are on them. And he adds exactly how plaintiff attorneys can use the court of public opinion to their advantage to fight the David v. Goliath fight against the big law firms hired to represent defendants.
From a marketing perspective, Wayne talks about how being seen in public media outlets can give an attorney instant social proof of the work you’re doing, by literally seeing you in action. “It’s not just you sending a press release or someone visiting a website. They see you quoted in an article, they see you being an advocate for a client, and they think to themselves, wow, he/she really knows what they are doing. Maybe I should contact them. That’s a lot different than just Googling ‘trucking attorney in Texas’ and hoping that somehow they get to you.”
Michael and Wayne explore a myriad of topics surrounding the court of public opinion throughout this episode, including: the ethics surrounding being in the media and the change of societal narratives and perceptions; anchoring – a tactic rooted in psychology and persuasion; the rules of professional conduct when engaging with the media; getting consent from a client, especially with the understanding that there are many mean-spirited people in the world who are ready to say bad things; core factors to consider when determining if a case is newsworthy and how to frame cases to be “sexier” in the eyes of the media; and so much more. This episode is one to listen to several times for attorneys who are thrust into the spotlight feeling unprepared, as well as for attorneys with cases that could have greater potential through exposure from the court of public opinion.
“Please note the TLN19 discount code mentioned in this show has now expired.”
BACKGROUND
Wayne founded Copo Strategies in 2016 after spending over a decade achieving favorable legal and public relations results for his clients.
Prior to starting Copo, Wayne was a litigator at Dechert LLP, one of the largest and most prominent law firms in the world, with more than 900 attorneys worldwide, and more than $1 billion in annual revenues. In his more than six years at the firm, he obtained favorable outcomes for clients by analyzing and presenting complex legal and factual issues. While at the firm, Wayne worked on high-stakes, high-profile matters that were often reported on by local, national, and international media outlets. For example, he was on the Dechert team that represented the ten former independent directors of Lehman Brothers in the wave of investigations and litigation triggered by Lehman’s September 2008 collapse. He was also on the team that represented Takata, a leading automotive parts manufacturer, in litigation and regulatory investigations related to the company’s recall of tens of millions of potentially defective airbags. And, Wayne was on the team that represented the Marshall family in litigation against Vickie Lynn Marshall (a.k.a. Anna Nicole Smith).
Before law school, Wayne practiced public relations at The Star Group, a one-time Advertising Age “Top 100” marketing communications firm. In his four years at the firm, he developed and executed public relations and marketing initiatives on behalf of regional, national, and international clients. While at Star, Wayne cultivated relationships with journalists and secured dozens of placements for clients in national and regional media outlets including USA Today and The Wall Street Journal, regional television network affiliates, and national trade media outlets.
Publications, Media Appearances, and Speaking Engagements
Please click here for a list of Wayne’s publications, media appearances, and speaking engagements.
Education
Wayne graduated in 2009 from Georgetown University Law Center, where he was Senior Special Projects Editor for The Georgetown Law Journal.
Wayne graduated magna cum laude in 2002 from the S.I. Newhouse School of Public Communications at Syracuse University, where he majored in public relations.
Court Admissions
Wayne is admitted to practice law in all state courts in Pennsylvania and New Jersey. He is also admitted to practice in the U.S. District Court for the Eastern District of Pennsylvania, the U.S. Court of Appeals for the Third Circuit, and the U.S. Court of Federal Claims.
Personal
Wayne resides in Center City Philadelphia. If you keep an eye out, you might find him running on one of Philadelphia’s numerous running trails, desperately trying to keep Father Time away from his knees.
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57 – Sonia Rodriguez – The Digital Frontier: Technology, Roadblocks & Creative Solutions
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In this Trial Lawyer Nation podcast, Michael sits down with his law partner Sonia Rodriguez. They discuss pushing cases during COVID-19, educating the defense and clients on Zoom, the increased need for technology in law firms, finding creative solutions, the effect of the pandemic on jury attitudes, and strategies to safely return to the office.
The discussion begins on the topic of pushing cases and overcoming defense delay tactics during COVID-19. Sonia emphasizes the need to continue to move cases, even if you’re met with objections from the defense, saying “The wheels of justice don’t come to a complete halt.” Sonia suggests offering a clear, transparent proposal for technology to the defense prior to depositions. Fellow Cowen Rodriguez Peacock attorney Jacob Leibowitz has created guides for Zoom for Depositions and Zoom for Mediations which have been helpful in easing uncertainty surrounding this new technology. Michael has also found success in offering practice sessions to the defense counsel, noting that this works well when people are acting in good faith.
Unfortunately, not all defense attorneys are acting in good faith with their objections to this technology and will try to drag the case out. In these situations, Sonia encourages attorneys to file a Motion to Compel Deposition. She has found success in this because courts in Texas have been utilizing the technology themselves. This makes it hard for defense attorneys to suggest depositions by Zoom aren’t appropriate when the hearing may very likely be held by Zoom. Sonia and Michael agree that it’s in every firm’s best interest to keep their cases moving during COVID-19 and to find creative solutions to problems which may arise.
The conversation shifts to a discussion of preparing clients for Zoom depositions. Sonia insists the process isn’t much different, other than a loss of “relationship feel” between the client and the attorney during deposition prep. The important factor in this is ensuring you create a comfort level for your client that makes them feel prepared.
Sonia and Michael agree the biggest roadblock they’ve faced regarding client preparation is a lack of available technology for the client. Many clients do not have a laptop, Wi-Fi, or a room where they can sit privately and quietly for a 3-4-hour deposition. Their firm has mitigated this issue by sending tablets to clients who need them and emphasizing technology training during deposition prep. They note that this strategy does not always work, and some depositions will inevitably need to be delayed until we can meet in person again. The underlying goal is to keep 95% of your cases moving.
Michael and Sonia move the conversation to the overall increased level of understanding regarding video conferencing technology like Zoom. Sonia describes her experience with sharing exhibits through Zoom, and her trial and error of doing so. She’s noticed how advanced the knowledge of this technology is for many court reporters and mediators and has learned through their advice as well. She then shares a story of when she served a witness with a Zoom deposition subpoena. She expected a lengthy process of explaining the technology to the witness, who shockingly replied that she was well-versed in Zoom through her children’s virtual school courses. Michael notes that he doesn’t know how enforceable a Zoom deposition subpoena would be, but again emphasizes the goal to move 95% of cases and save the rest for when we return to normal. Sonia echoes this by explaining the duty we have to our clients to move cases and represent them earnestly. While we cannot guarantee their trial date will go through, we can guarantee we are continuing to work on their case.
Michael makes the point that we all only have a given amount of energy to spend in the day. While it’s easy to get caught up in things outside of your control, it’s crucial to not let this suck up your energy. He emphasizes the importance of spending your energy on what you can control right now- moving your cases. Sonia agrees and adds that as trial lawyers, we are wired to be creative and tackle the unexpected in our cases and in the courtroom. She shares a brilliant example of this comparing today’s landscape with an elmo projector.
There has been much speculation around how COVID-19 will affect jurors’ perceptions in the long run. In Sonia’s opinion, this will depend on the economic situation once juries come back. If people have been out of work and cannot afford to be there because of their economic situation, this will not be good for the plaintiff’s side. She believes if the economy can stabilize, jurors may feel a heightened sense of civic duty and comradery around rallying on a jury. Michael has hesitations about trying a case where the jurors feel endangered by being present, but has a positive outlook on the long term effects, stating “Americans have an incredibly short memory.” He notes the worries of juror perception after events like 9/11 and the 2008 financial collapse, which had no long-term negative effect.
Sonia and Michael conclude with a discussion of how and when firms will begin to gather in a physical office space again. Sonia says our top priority needs to be to keep our clients and our families safe. Michael shares his hesitation to open too quickly by saying, “We sue companies for putting profits above people” and we should hold ourselves to this same standard.
This podcast also covers ethical concerns with virtual depositions, when to provide hard copies of exhibits in virtual depositions, bench trials via Zoom, overcoming technical issues, and much more.
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73 – Pat S. Montes – The Secret Weapon: Your Client’s Story & The Human Experience
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In this episode of the Trial Lawyer Nation podcast, Michael sits down with his good friend and “secret weapon,” Pat S. Montes. A practicing lawyer herself, Pat has developed a consulting business where she works with lawyers and their clients to help the clients tell their stories more effectively. They’ll take an in-depth look at her process for depo and trial prep and why it is so effective (and healing) for clients to tell their whole story.
They begin by looking at Pat’s background and how she got into her consulting business. A proud Mexican American and one of six siblings, she explains how her upbringing was hugely influential to her and played a substantial role in her success. She goes on to share how she attended the Trial Lawyers College in 2002 where she realized then that she didn’t really know her clients or their voices. She began a long journey of research and self-discovery, attending countless seminars on psychodrama and storytelling. While Pat does not do psychodrama herself, she utilizes many of the same techniques in her practice. She focuses on getting beyond the client’s outer layer to their inner layer, so they can show the jury what’s really going on inside them.
Pat continues by explaining what psychodrama is, which she simply defines as “finding truth in action.” In this process typically used for group psychotherapy, the “star” (the client) acts out scenes and stories from their life while the present group connects with that experience. In relation to the legal practice and our clients, it is a way of being able to connect with other humans and other human experiences and “finding the truth in the story.” Pat uses role reversal, teaches the clients how to “concretize” their feelings, and more to help them translate their feelings into a story for the jury.
They move on to dig into Pat’s process for preparing the lawyer and their client for deposition. Michael begins this section by asking Pat how she discovered that putting something into action helps the client describe it better. She shares how this process gets the client convicted about how they feel and always begins by asking about the effect of the crash on the client’s life. Their immediate answer to this first question reveals a lot about who they are and how they’ve processed this life-changing event. She will then dig deeper into that answer to uncover the “whole truth,” a process which Michael has seen Pat do with his clients many times and strongly believes is incredibly important to the case, cathartic for the client, and vital for the lawyer to fully understand their client. Michael also notes the importance of the client being completely honest with the jury, because “juries have great bullshit detectors” and will punish you if they sense you’re being dishonest.
Pat will then dig into the client’s “before,” something she thinks is crucial for the client to be able to explain vividly to the jury, saying “If the jury can feel the before, then the jury can feel the loss.” She goes on to say that it’s perfectly fine if the client’s “before” was less than perfect. For example, if the client was in a transition phase before the crash, the last thing they needed was a life-altering injury.
Another important part of Pat’s process is teaching the client how to describe their pain and how it makes them feel. This not only helps them explain it vividly to the jury, but it can even uncover injuries and ailments that have been unnoticed by doctors. She then explains how the lawyer should model this to the client by first describing a recent pain they’ve had. She provides her own example of dealing with Sciatica in such detail that listeners are sure to feel the exact sensation of her pain as she says it.
While this process is meant to build trust and understanding between the lawyer and their client, it also serves to prepare the client to bare the burden of proof for the jury. Many clients initially believe they shouldn’t have to prove anything, or that their story speaks for itself. But Pat will constantly remind the client of how what they say looks to a jury. For example, if the client doesn’t remember the date of the accident, that could appear incongruent with their assertation that “the crash was devastating.”
To help the client go into their deposition feeling emboldened or proud, Pat employs a number of insightful techniques. One example she gives even uses the client’s sense of smell to bring them into their “safe place” which has a number of useful applications in the courtroom and in life. This also makes their story more engaging to the jury and helps the lawyer connect with the emotions they felt in that moment.
Pat then notes the importance of the client describing the joy that their past activities brought to their life. For example, when she asks most clients about their past job, they’ll talk about how it brought them respect and made them feel fulfilled. They typically don’t even mention the money! And when we talk about what these things meant to the client’s life, Pat says that’s where we get the anguish and the “struggles.”
This leads Michael to ask her to explain more about “struggles” and what she means by that. Pat provides a common example of a client saying, “I can’t even walk,” when in reality they can. Many lawyers shut off at hearing this because they think the client is overexaggerating or overly complaining. But while they can walk, they are doing so in a lot of pain. She then makes it clear to the client that they shouldn’t diminish anything, but they should not exaggerate anything.
Michael also adds that when clients are overstating, they’re often scared that if they don’t exaggerate, nobody will listen to them. This is why trust between the lawyer and the client is key, and Michael credits Pat for helping build many of his most trusting relationships with clients. He poetically adds, “Even if it’s not the perfect story, the truth is so powerful in the courtroom.” Pat agrees and adds that the less you have, the more you lose. So even if the client’s “before” story is filled with missteps, it’s vital to tell the whole truth to the jury.
They move on to discuss an insightful way to find the best witnesses for the client. Part of this process is the client acting out scenes from their life, which inherently reveals some people in their life that were there for those moments. Usually, they’re not anybody who the client would list unprompted, but end up being the perfect person to attest to the client’s loss. As Pat puts it, “It’s who knows your character, not who can speak to it.”
While most of this episode has been about Pat’s depo prep process, she and Michael briefly move on to discuss her trial prep process. This involves setting up a mock jury and having everybody rotate positions to be the jury, the defense lawyer, and the client. This prepares the client for the scrutiny of the defense and the jury, giving them the confidence they need to survive the brutal attacks that can happen in the courtroom. They’ll also cover things like eye contact, what a juror needs, practicing a direct, practicing a cross examination, and more. Between this and the depo prep described in this episode, the client will come out prepared, trusting, and sometimes even “healed” from their emotional wounds.
If you’d like to contact Pat Montes about consulting on a case, you can email her at patmontes@monteslaw.com. She is fluent in both English and Spanish. Michael hesitates to say this because he’s nervous about her getting booked up, but in the spirit of truthfulness, he highly recommends working with Pat to develop your clients’ trust and storytelling skills.
This podcast also covers how long this process takes, going to trial without medical bills, why you should ask your clients who influenced them to be the person they are, why the connection you share with your client should be your voir dire question, how acting out a scene can help clients understand the mechanics of their injury, how lawyers can learn more about this process, why the lawyer needs to be present for this to work, why the plaintiff lawyer should NEVER play the defense lawyer in a role play scenario, why this process feels like therapy, and so much more.
