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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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40 – Ken Levinson – Focus Groups and Metaphors
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In this Trial Lawyer Nation podcast, Michael Cowen sits down with Ken Levinson, a successful trial attorney who is also very active with his trial consultant focus group practice, for a discussion on how his unique practice is getting big results in the courtroom. Ken selfishly loves his “split practice” primarily because of its process of constant learning which comes with both sides of his practice, noting that he’d never want to give either of them up.
The conversation begins by exploring focus groups, as Ken talks through how they help in cases because lawyers are able to find out what resonates with people and then test it before ever stepping into the courtroom. “Over time, I’ve learned the better approach is to accept what people tell you. Listen, and in a neutral way, find out what’s going on.” Ken goes on to say “I don’t want to fall in love with my case or a witness or a theory without really stepping back and almost looking at your case in a different way” which is exactly what focus groups help him do while pointing to the teachings of Michael Leizerman [link to Michael Leizerman episode] of needing to have a “Zen mind” or a beginners mind. He adds “I think we get lost in the language of being a lawyer and I’ve really tried to train myself to talk like real folks in everyday life about our cases.” Michael then points out how it is incredibly important to be yourself, noting the power that authenticity brings to human communication both inside and out of the courtroom.
After working with so many great lawyers, Michael wonders what Ken has seen separates the good from the elite. Ken points out two factors he’s seen in elite lawyers: 1. They know their cases inside and out and although they may seem to talk very casually about things in the courtroom, they actually work extremely hard; and 2. The better trial lawyers he’s gotten to know are always learning. Ken goes on to point out there are some firms he might do 20+ focus groups for in a given year, and although they have been getting multi-million dollar verdicts for decades now, they are always learning, testing, reading, revising, and thinking about how to improve.
Michael speaks to his own experiences on learning and how over the years, while there are some basic human things that don’t change, many things do change over time and thus, lawyers need to be open to continuing to learn in order to be effective in the courtroom. Ken follows up to describe some of the other things he’s doing to continually get better, such as reading a lot on decision-making, psychology, and metaphors, then discussing what he’s learned with friends and colleagues, testing things for himself in focus groups, case preparations, depositions, and in the courtroom. He also goes to seminars and holds in-house trainings. Ken also discusses some of the ideas he’s learned from R. Rex Parris [link to Rex episode] on metaphors and how he’s been able to incorporate them into his courtroom proceedings.
Talking more about Ken’s experiences with focus groups and testing theories within them, he describes a few exercises he’s used to better understand the imagery that focus group juries associate with their case using simple techniques. Then he takes things a step further to discuss the findings, one-on-one, with the focus group participants. Through this process, he’s discovered many great metaphors and images that have helped his cases as well as some that needed to be tweaked or reworked for a case, noting that it’s better to find out and understand things which can negatively impact your case prior to trial, than during it, of course.
Beyond running his law firm and focus groups, Ken has also written books and articles, which begs the question – how does he have time for all of this? Ken describes his methods of time management which include getting up several hours before his wife and kids, but also includes time blocking and scheduling things based on his own understanding of the best times for him to get work done, which he details more in this episode. Michael also talks through the structures he’s implemented in his life and his firm to help to “move the ball forward” toward accomplishing his goals.
Michael turns the conversation toward what lawyers can do to set themselves up to achieve their goals, whether it is getting a $43 million verdict or a $6 million settlement, to which Ken turns the table a little bit and points out some great advice he had heard from Michael about taking on the right cases and turning away the others. Michael elaborates on this point and discusses the juxtaposition of the normal mentality associated with turning down cases, which really hits the nail on the head in terms of getting more of the types of cases lawyers want to get and building their practice.
Their conversation rounds out in a discussion revolving around the terms Ken has seen come up over and over in focus groups involving trucking cases specifically. Ken talks about terms he’s found to be important to focus groups and juries alike such as “professional driver,” and ideas revolving around vision and forgiveness. Truly insightful information that Ken discusses more in depth, which not only brings perspective to trucking cases at their face value, but also the impact focus groups can have in helping to bring another element of humanity into our cases by getting the perspectives of what’s important in the eyes of others.
BACKGROUND
Ken Levinson is a passionate advocate for accident survivors and child safety. For more than 20 years, he has represented disenfranchised clients against corporate giants. By using the law, the court system and his skill as a lawyer, his goal is to level the playing field for those facing the most challenging times of their lives.
Leadership
- Former Section Chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section
- Vice Chair of the American Association for Justice Trucking Group
- Board Member of the American Association for Justice National College of Advocacy
- Co-chair of Overcoming Jury Bias Litigation Group
- Regional Coordinator of the American Association for Justice Chicago Student Trial Advocacy Competition
- American Association of Justice Board of Advocates
- American Association for Justice Law Schools Committee
- American Association for Justice Voter Protection Committee
- Committee Chair of the American Association for Justice Litigation Group Coordination Committee
- Press Advisory Board American Association for Justice
- Chair Chicago Bar Association Solo & Small Firm Practice Committee
Ken also serves as chair of the section’s Practice Resources Committee, which compiles documents such as pleadings, research, expert reports and other information that might be helpful to fellow trial lawyers. As part of AAJ, Ken acts as Secretary of Motor Vehicle Collision, Highway, and Premises Liability Section and Chair of the newsletter committee; he has served as Education/CLE Vice-Chair of the Trucking Litigation Group (2014–2015) and Co-chair of Publications Committee (2013-2014). Additional memberships include the Chicago Bar Association, where Ken has also been the Solo & Small Firm Practice Committee Chair from 2009-2019, Vice Chair (2008 – 2009), and the Illinois Trial Lawyers Association, where he is currently a member of its Board of Managers. Under ITLA, Ken is also a co-chair of the legislative committee. In 2010, Ken was elected to serve a three-year term on the Trial Lawyers College Alumni Board. He is currently serving on the editorial board of The Warrior, the Trial Lawyers College magazine.
Ken has written numerous articles for prestigious lawyer publications and spoken at dozens of conventions for trial lawyers and American Bar Association organizations. Ken also recently appeared on an episode of the Trial Lawyer Nation podcast.
Honors and Awards
Ken is currently the Vice Chair of the American Association of Justice Trucking Group. Ken also formerly served as Chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section and Illinois Board of Governors for the American Association for Justice, a designation that carries Illinois Trial Lawyers Association (ITLA) Board status. He has been recognized by Leading Lawyers and Super Lawyers magazines as one of the top attorneys in Illinois, including the Super Lawyers Top 100 in 2012, 2016, 2017, 2018 and 2019. He is the co-author of Litigating Major Automobile Injury and Death Cases, a two-volume reference series designed to help attorneys build strong cases for their clients by highlighting real-life case studies related to Major Auto Injury and Death. The book is published by AAJ Press/Thomson Reuters.
Named one of The 40 Lawyers Under 40 to Watch in Illinois by the Law Bulletin Publishing Company, Ken is among a select group of trial attorneys that has graduated from legendary lawyer Gerry Spence’s Trial Lawyers College, which is dedicated to training and educating lawyers who represent people against corporate and government oppression. Ken is one of only 100 trial lawyers from Illinois selected for The American Trial Lawyers Association, where membership is by invitation only.
Education
After receiving his Bachelor of Arts degree from Hobart College in 1989 and his Juris Doctor in 1992 from Case Western Reserve University School of Law, Ken was appointed an Assistant Illinois Attorney General, representing state agencies and employees in civil matters, including both personal injury and civil rights cases. He has been admitted to practice before the Illinois Supreme Court and the Northern District of Illinois, United States District Court since 1992. Levinson is also admitted to the Federal Trial Bar.
Personal
Ken volunteers his time and resources to a variety of community and charitable organizations in the Chicago area, such as sponsoring the Tristin Speaks Benefit, which raised funds for autism awareness. Ken is a former member of The Citizens’ Council of LaGrange, a non-partisan community group that promotes better government through the recruiting and evaluation of candidates for local public office, having co-chaired the Council’s Qualifications Committee. Ken participated in the 39-mile, two-day Avon Breast Cancer Walk and the St. Jude Walk/Run to End Childhood Cancer. Ken also supports Art in Motion, an event hosted by the Associate Board to raise funds for the Rehabilitation Institute of Chicago, now known as the Shirley Ryan AbilityLab.
Ken is an area native, born in Chicago and currently living in LaGrange, IL. He is happily married and the father of three boys, keeping him very active in youth and sports-related activities. One of his favorite pastimes is to go with his wife to their sons’ high school varsity games and in-state and out of state tournaments for basketball and volleyball.
Ken can be reached at all hours via email: Ken@LevinsonStefani.com
RESOURCES
How Customers Think: Essential Insights into the Mind of the Market by Gerald Zaltman
Marketing Metaphoria: What Deep Metaphors Reveal About the Minds of Consumers by Gerald Zaltman
Metaphors We Live By author George Lakoff and Mark Johnson
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23 – Tom Crosley – TBIs: An invisible, yet very real injury
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In this Trial Lawyer Nation podcast, Michael Cowen sits down with accomplished trial lawyer and national speaker, Tom Crosley, who has been incredibly successful in trying cases involving Traumatic Brain Injuries (TBIs).
Tom’s start in TBI-specialized cases began with a case involving a plumber who had a neck and shoulder injury with seemingly normal readings on his CT and MRI scans. The more he worked on the case, the more he found out through his client’s wife that his client just wasn’t the same as before the incident. It was when the defense lawyer was taking the plaintiff’s deposition that Tom realized his client likely had a TBI. All the things a plaintiff’s attorney cringes at in a depo were happening, from his client flying off the handle at the defense attorney, to forgetting his kid’s birthdays. Basically, all the things you think are going to be bad for your case. By the end of the deposition, Tom went from thinking this was a neck and shoulder injury case worth hundreds of thousands of dollars to thinking this could be a TBI case more than likely worth millions.
This sent Tom off to learn as much as he possibly could about TBIs, all in the face of having normal scan results, which back then were seen more as a barrier to proving TBI cases. His research inevitably led him to finding a case study where war veterans of Iraq and Afghanistan were not displaying outward signs of TBIs, nor were their CT or MRI scans showing any abnormalities, but were found to have TBIs through additional testing. Not to give the whole story away, but Tom tracked down the lead researcher, his client was tested and found to have a mild TBI, the case was won with a verdict over 20X the initial offer given pre-trial, and Tom’s specialty for TBI cases had begun.
Since then Tom attributes his ability to go from never having tried a TBI case to now being one of the country’s top TBI lawyers, to his penchant for reading medical literature and going to legal and medical conferences in order to gain knowledge of the cutting-edge science happening with TBIs. He also admits it’s not all brain science with TBI cases, but it also includes some very human nature elements sometimes overlooked. Things like before-and-after witnesses who can relay their own experiences with a plaintiff in a meaningful and impactful way, having nothing to gain from doing so. This puts the decision on the jury to conclude that this invisible injury (which many defense lawyers will proclaim isn’t real if it can’t be seen) either has a lot of people lying about it for the benefit of the plaintiff, or there is something very real about it given those who have first-hand accounts of seeing the plaintiff’s evolution from pre-injury to their current state. Michael shares his own firm’s experience about the timing of getting other witnesses involved in TBI cases and the hard lessons that experience has brought with it.
Next, Michael explores how Tom transitioned from having success with just one TBI case to building up the number of TBI specific cases to become successful. To which Tom explains that the sequence of your evidence at trial makes a big difference on the outcome of the trial and shares a perfect example based on his experience of the order where he has found the most success over time. Tom discusses the patterns which tend to work for him, although his process is nothing close to being cookie-cutter, and shares “just like no two snowflakes are alike, no two brain injury cases are alike.”
Michael and Tom both reference a shocking study which shows upwards of 56% of TBIs are misdiagnosed or go undiagnosed completely. Tom digs in and goes over some of the reasons WHY they get missed, starting with the most obvious in a traumatic medical situation where other orthopedic injuries tend to get the attention; i.e., someone goes to the ER with a bone sticking out of their leg and a concussion – the doctors focus on the bone first. Another challenge Tom points out is while a TBI is an invisible injury, their symptoms can also be described as things not brain injury related, such as age, depression, PTSD, psychiatric history, which also cause symptoms that mirror those of a TBI. So, the challenge becomes, in these cases, to figure out how those symptoms are related to brain damage and not related to something else. He goes on to discuss the lack of training most physicians receive on what to do with concussion patients, which adds another layer of complexity to many TBI cases.
Michael asks the question on all trial lawyers’ minds who work on TBI cases, and that is “what are some of the things that we should be doing when we get hired on these cases early in order to have the best possible chance of winning the case?” Tom explains the number one piece of advice when trial lawyers run into these types of cases is that as long as the plaintiff/patient is experiencing symptoms, they need to be getting documented in the medical records. You don’t want to go to trial with a gap in records where these life-changing symptoms are occurring, which Michael also points out is likely no different than the advice that you would give to a friend or a family member.
Michael and Tom explore several other nuances of TBI cases; but in the end, Tom explains, we are painting a portrait of a person whose life has been changed forever. Similar to a wrongful death case where the person who existed before is no longer; helping a jury understand the impact a TBI has on a person, their family, and the future and how this person no longer exists as they did before is EXACTLY what can turn a $100k case into a $16M case.
About Tom Crosley
Tom Crosley received his bachelor’s degree from the University of Texas in 1988, and his law degree from the University of Houston in 1992. He was admitted to the bar in the State of Texas in 1992 and is also admitted to practice in the United States District Courts for the Northern, Southern, Eastern and Western Districts of Texas, as well as the United States Court of Appeals for the Fifth Circuit. Prior to forming the Crosley Law Firm, P.C. in 2005, he was a partner with Branton & Hall, P.C. in San Antonio, where he worked for ten years. He began his legal career in Houston as an associate at Brown McCarroll, LLP.
Mr. Crosley is “AV” rated by Martindale-Hubbell, and is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and is board certified as a Civil Trial Advocate by the National Board of Trial Advocacy. He is a past president of the San Antonio Trial Lawyers Association in 2002. In 2001, he served under appointment by the Bexar County Commissioners Court to the Advisory Board for the Bexar County Dispute Resolution Center and he served in that position until 2006. He is a member of numerous legal organizations, including the American Association for Justice. He has been an active member of the Texas Trial Lawyers Association (Director, 2005-present, Advocates Director, 1999-2001), the San Antonio Trial Lawyers Association (Director, 2000-2001, President, 2002), the American Board of Trial Advocates, San Antonio Chapter (inducted 2004, Secretary, 2014, Treasurer, 2014, Vice President 2015, President-Elect 2016, and President 2017), the American Bar Association, the Texas Young Lawyers Association (Director, 1997-2001), the San Antonio Bar Association (President-Elect, 2018-2019, Vice President, 2017-2018, Secretary, 2016-2017, Treasurer, 2015-2016, Director, 2004-2006 and 2013-2016), the San Antonio Young Lawyers Association (Director, 1997-2001, Vice President, 2000) and the American Inns of Court. Mr. Crosley is a Life Fellow of the Texas and San Antonio Bar Foundation and is a member in good standing of the State Bar of Texas. Mr. Crosley has tried 50 cases as first-chair trial counsel, nearly all of them from the plaintiff’s side of the docket.
Mr. Crosley frequently serves as an author and speaker at legal seminars, usually on topics related to personal injury trial law. Mr. Crosley has been selected as a Texas Super Lawyer each year since 2004 and has been named as one of the Top 50 Lawyers in Central and West Texas by that publication for the last several years.
Mr. Crosley’s docket of cases includes personal injury and wrongful death cases arising from automobile and trucking accidents, defective products, medical malpractice, and related areas. In 2006 ($28,000,000), 2010 ($16,000,000), and 2016 ($11,485,000)
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25 – Sonia Rodriguez – Defeating Defense Medical Experts
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In this Trial Lawyer Nation podcast, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Sonia Rodriguez, for another installment of TLN Table Talk to answer the questions of our listeners. This episode focuses on defense medical “experts,” or as Michael calls them, “paid opinion witnesses.”
Michael calls this spade a spade right from the get-go, in that the title of “defense medical experts” is a sham. Many times, he says, they are called “independent experts” when they are neither independent nor an expert, not to mention the fact that they are hand-picked by defense lawyers who pay them for their testimony. Michael believes it is a huge fraud being perpetrated on our clients, on the jury, and on the court system. He says, typically “we know what their report is going to say once we hear their name,” further exemplifying this flaw in the system.
So, Michael asks, “what do we do to expose this and show the jurors the truth?” Sonia believes it is critical we expose the relationships experts have with the lawyers who hired them, how often they’ve been used by that firm or the defense industry, as well as how much money they make from that business. She also uncovers what percentage of their business is spent on reviewing files for defense lawyers vs. practicing medicine, in some cases. All of which can go a long way in revealing these witnesses for what they really are, which is “paid opinion witnesses.” Michael also explains how he doesn’t like to even use the word “expert,” which gives them the mantle of that title. He goes on to discuss the harsh reality and his distain for medical professionals who misuse their degrees to go against the very oath they have taken to “do no harm,” while we represent legitimately injured clients, and they do it for money! They both agree how uncovering the financial ties and bias of these witnesses also says a lot about them because they could likely be making much more money by seeing patients, but instead are reviewing cases for a defense lawyer. Michael also talks through a real example of what he’s run into on how these medical witnesses come to find themselves making money in this way and how their path toward testifying can ironically parallel his client’s paths.
Michael and Sonia share a plethora of examples regarding their tactics on utilizing depositions, both past and present, to build their cases, ranging from networking with other attorneys and medical professionals to leveraging amazon.com in the middle of a deposition. Sonia explains how you cannot go into a deposition with a broad brush, but rather be laser-focused and able to drill down on even a single word, in some cases, to make your entire case. And to sum things up, Michael talks through the very polarizing two ends of the spectrum his preparations take him with defense medical experts, where they are likely to either be way “off the deep end” and obviously working as a paid witness, or he will focus his energies on essentially turning them to help his case. The strategies they both describe are pure methodical genius.
The conversation shifts to talk specifically about the tone and demeanor both Michael and Sonia use when deposing paid medical witnesses. They both agree the tone and demeaner you use in a paid medical witness deposition is extremely important, as it will likely be replayed for the jury at some point and jurors will also be watching to see how you handle yourself in this situation, the same way they do in the courtroom. We, as plaintiff attorneys, also need to be cognizant of how we are approaching the deposition so it leads the jury to come to their own conclusions regarding the credibility of the paid medical witness and their testimony. It also becomes reflective for the jury to feel the danger themselves of allowing these paid medical witnesses to get away with using their titles as a form of “expertness” in exchange for being paid by the defense. In other words, if we just “rip into them” it will likely backfire on us and not work at all in our favor. Not to mention, Sonia adds, that today’s juries are tired of the theatrics and enthusiastic approach of some lawyers, where the days of yelling and pounding your fist on the table are now long gone.
All in all, this Table Talk with Michael and Sonia was thorough and filled with an enormous number of real examples from their experiences over the years. As a trial lawyer, you will likely run into paid medical witnesses in trials often, and this table talk could be the one thing that prepares you most for success.
