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In this Trial Lawyer Nation podcast, Michael Cowen sits down with Founding Partner at The Penn Law Firm, Eric Penn. To start things off, Eric describes his decision to focus on trucking cases and how it came from the simple fact that we can all relate to them. In fact, everyone (including attorneys) share the road with 18 wheelers. Eric goes on to point out that the general viewpoint of “cases never looking better than when you first work them up,” while true at times, seems to go the other way with trucking cases where they get consistently better the more you roll up your sleeves and dig into them.
Speaking of rolling up sleeves and digging in … Michael and Eric pull back the curtain on what turned out to be an $89.6M verdict for the bulk of this podcast, which in and of itself is enlightening, educational, and impactful.
The brief synopsis of the case would likely have many attorneys passing on the case from the very start considering how things looked on the surface – A mother with 3 children in the car, running errands on a Texas highway, hit a patch of black ice, loses control of their vehicle sending them through the median into oncoming traffic and is struck by an 18 wheeler, and the police report indicating that there was no fault to be placed. Michael suggests that more than 98% of personal injury attorneys in the state would likely not take on such a case and the others might even look at it and see a $1-2M settlement, which obviously wouldn’t be enough once you hear the unfortunate circumstances the victims faced moving forward. But not Eric!
Eric’s reasoning behind taking the case stemmed from getting to know the case on a deeper level, understanding that the injuries were dramatic, and having an in-depth knowledge of the Federal Motor Carrier Safety Regulations (the green book) and CDL Manual’s Safety Rules that are in place to protect all of us who share the road with 18 wheelers, citing one of the chapter’s intent is literally to “prevent crashes and save lives.” One might think that this type of case would revolve around the approximate 3-second sequence of the crash itself, but Eric’s explanation of how their focus became everything but those 3 seconds really shed a light on how this type of case can quickly grow to a much more substantial and just verdict. Spoiler Alert: Eric notes that EVERY case he has come into has 100% of the time been about the company behind the truck driver and how that company operates its fleet, making them much more responsible than they may like to admit. The compassion Eric demonstrates in describing his mental process in the decision to take on a case like this is palpable.
The details surrounding this case that Michael and Eric discuss are apt to be a significant learning tool from which any attorney can stand to learn.
Background on Eric Penn
Eric T. Penn believes that in order to keep our families and communities safe, we have to hold people or corporations who choose to violate safety rules accountable for the injuries and conditions they create. That is why he has been an outspoken advocate for seriously injured people for more than seventeen (17) years. He represents people who have been permanently and seriously injured through no fault of their own.
Eric is a born and raised Texan. He is a 1998 graduate of Baylor University. He received his Juris Doctorate (J.D.) from Baylor University School of Law. He was admitted to the practice of law in Texas and the U.S. District Court for the Eastern District of Texas in 2001.
A Trial Lawyer’s College (TLC) graduate, Eric is a frequent lecturer on Trucking litigation throughout the country. He is a member of American Association for Justice (AAJ) Trucking Litigation section, Attorney Information Exchange Group (AIEG), Academy of Trucking Accident Attorneys (ATAA) and the Texas Trial Lawyers Association (TTLA).
For more info on Eric Penn visit:
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03 – Mikal Watts – The Do’s and Don’ts of Running a Successful Law Firm
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In this Trial Lawyer Nation podcast, Michael talks with one of the nation’s top trial attorneys, Mikal Watts about his pursuit of the goals he established at a very young age which forced him to make some tough decisions early on in his career. Fear, exhilaration, and even his wife thinking he was crazy couldn’t keep Mikal from doing what had to be done before it was too late in his career.
Mikal describes the choices that were made when he initially started his own practice and their unlikely, yet practical, reasoning. Mikal also recalls his first big solo case and how literally moving some furniture around helped him put his best foot forward and became a pivotal moment for his practice. Mikal offers advice on the do’s and doesn’t for those looking to start their own firm, in addition to some of the sacrifices and deferred gratification that comes with the territory.
While there have been many to date, Mikal shares with Michael some of the verdicts that he has been most proud of thus far, such as his first case against Chrysler, and how those cases have added to the value of his practice beyond just the dollars and cents. Mikal delivers practical keys to success for the courtroom and how to truly connect with the jurors in the room, which by the way, have become keenly proficient in detecting BS (both factual and unscrupulous).
At the same time, both Michael and Mikal recognize and discuss the absolute need to break subjects down into their simplest terms (Mikal’s metaphor for tire tread is simply priceless). Humility and modesty shine through as Mikal describes his firm’s ethos and attitude for sharing with other lawyers, not unlike Michael and his firm, and the inherent benefits that come with such an inclusive environment, for both the firm and more importantly the clients they serve.
This podcast concludes with an important discussion of the biggest threats to the legal industry to which Mikal’s thoughts may surprise even the most seasoned attorney.
Background on Mikal Watts:
Mikal Carter Watts is the founding Partner of Watts Guerra LLP. He was born in Corpus Christi, TX in 1967. Mikal attended The University of Texas in Austin where he completed his undergraduate degree in two years. He then went on to the UT School of Law, where he also graduated in two years at the age of twenty-one. Following college, Mikal accepted a position working for The Honorable Thomas R. Phillips, Chief Justice of the Supreme Court of Texas, as a briefing attorney from 1989-1990. In 1997 Mikal opened his own law firm in his hometown and in 2006 he relocated to San Antonio.
Mikal was married in 1993 to his lovely wife Tammy. Together they have three children, Taylor, Hailey and Brandon as well as two grandsons, Caleb and Austin. His interests include spending time with his family, attending church, Spurs basketball games, and Longhorn football games.
For more information on Mikal Watts visit http://www.wattsguerra.com/lawyers/mikal-c-watts
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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)
