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In this Trial Lawyer Nation podcast, 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 podcasts 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.
“Please note the TLN19 discount code mentioned in this show has now expired.”
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17 – Jesse Wilson – Turning Victims into Victors in the Trial Lawyer Theatre
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In this Trial Lawyer Nation podcast, Michael Cowen sits down with communications specialist, speaking coach, and jury trial consultant, Jesse Wilson. As a student of Julliard and with a background in theatre, TV, and film, Jesse’s transition to the trial lawyer consulting world doesn’t seem ironic at all seeing as every courtroom shows us different characters. Ask him what he does, and his answer is “I help human beings become human beings in front of other human beings,” describing his talent to a “T.”
From his early studies in theatre, one technique he was taught using masks made such an impression on him that he continues to use it to this day. Literal face masks are a powerful communication tool as well as a strong metaphor for the masks we wear in our lives, Jesse says. As the old saying goes, “what we resist, persists,” and they (masks) allow us to turn toward the dark and deplorable and use them as an opportunity. Jesse describes his initial success using masks came while directing inmates in jailhouse theatre where they were able to play different roles in order to understand different perspectives.
Today, Jesse uses these techniques with trial lawyers and clients alike to aid in showing the human spirit in the courtroom and fighting against the natural urges to cast themselves as the “characters” they think the jury wants to see them as. He discusses in more depth the need not to show emotion but rather to be emotionally available and the need to show that your client knows joy, can feel joy and is fighting for joy. If you don’t do that, then you end up becoming your own audience member and the jury no longer has the ability to become the “hero.” It’s the worst thing that can happen to an actor as well as for a trial lawyer. In the end, our job as lawyers is to show what our clients have lost, and in order to do that, we need to show the jury what they had by talking about the times of joy. We and the jury can feel the loss 1,000 times more through the joy than through the grief. In other words, Jesse points out, we don’t need to show their grief or tears, we need to show that they are a fighter, and the subtext in this paradox is revealed that the one thing that is more powerful than a man crying is a man trying not to cry.
The process Jesse uses isn’t cookie cutter by any means: he spends as much time as possible with the client being the human sponge and soaking up all the information he can and then “squeezes the orange” to formulate the narrative, language, and themes. By using movie questions like What’s your favorite movie? Who’s the main character? What is his main obstacle (the thing that is holding them back from what they want)? This helps to create an understanding of the story while avoiding talking about their own life in order to put them on common ground. He goes on to ask – if you took away the main obstacle, would you want to see the movie? Most, of course, say no without hesitation because it would be really boring and the story would have no place to go. Kind of like in the movie Jaws if you were to take away the shark. This conversation then sets the stage and helps clients to understand the importance of the struggle and the value of the story in its entirety, which eventually leads to talking about the details of their own story.
Michael relates a similar example where a client lost her right arm and was right-handed. In the beginning, they were just showing liability and mentioned the amputation and the focus group felt that “sure the case is worth $1M and she is probably trying to cash in and doesn’t want to work anymore” and a lot of other negative things. Then they showed video of her doing cross fit, saying she’s not going to let this beat her, lifting more weight with her left hand than she used to with both hands, and the focus group numbers just skyrocketed for what they were willing to give. All because she was no longer playing the “victim.” Michael refers to it as displaying the hope dynamic where if you are asking the jury to help you, they need to see what you are doing to help yourself.
Of course, no amount of money will ever make our clients’ lives whole again, but what you’re doing is helping them to continue to get better. They discuss that it’s really a tough position to be in during a trial because clients feel like they need to stay hurt and not move forward, yet they are really hurting themselves more by NOT continuing to move forward. Jesse also points out that it is one thing to work with someone who has had a lifetime of joy and then (bam!) it’s lost due to a death or injury, but it is another to work with someone who might have a lifetime of abuse or neglect or has a negative self-image and needing to somehow get them to the point in the eyes of a jury where we can understand the extent of their loss. Certainly, a deep and difficult discussion to have for anyone, but an important one to uncover the emotional evidence in a case.
Michael and Jesse conclude their conversation discussing the other “roles” that need to be cast in the trial story like the villain, along with the characteristics and conduct that reveal them as villains. Truly a powerful and enlightening peek behind the curtain of the great work Jesse is bringing to the courtroom in some of the country’s biggest cases.
For more info on Jesse Wilson visit: www.tellthewinningstory.com
Workshop Discount: Trial Lawyer Nation listeners are able to receive a 10% discount on any of Jesse’s workshops in 2018 or 2019. To take advantage of this discount, please sign up for a workshop through his website and use the access code PODCAST.
Jesse Wilson is a communication specialist, speaking coach, and jury trial lawyer consultant. A Juilliard Theater graduate, after 20 years of working in the world of theater, TV, and film, he has created “Tell The Winning Story” to empower trial lawyers to deliver high-impact presentations, as well as rapidly transform their communication and collaboration skills to effectively prepare clients and witnesses to testify. Jesse was inspired to create “Tell The Winning Story” after co-developing a Theater-Behind-Bars program for inmates. The program helped inmates make powerful changes in their lives.
The true power of a story always comes from inside us, the storyteller… And the path to developing a winning story begins with the lawyer owning their own story. “Tell The Winning Story” provides the lawyer the difference between telling a “hidden, safe, ‘surface’ story,” and powerfully connecting to a story that goes right to the heart of their audience, whomever that audience happens to be.
Jesse’s hands-on training are featured in his seminars, law firm retreats, intensives, workshops, and webinars.
For more info on Jesse Wilson visit: www.tellthewinningstory.com
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82 – Malorie Peacock – Working Through Others: Building a High-Performing Team
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In this episode of the Trial Lawyer Nation podcast, Michael sits down with his partner Malorie Peacock to discuss the art of managing your team and “working through others.” They cover effective delegation, hiring for experience vs. hiring for attitude, and how lawyers can be leaders to their teams.
Michael and Malorie kick off the episode with a look at delegating tasks to your team effectively, which is easier said than done when the team member has to do the work to your standards. Malorie starts by sharing her thought process when she wants to delegate a task. She first asks herself if this is something she could expect someone else to do in a way she approves of. If it is, she gives clear instructions and deadlines for when the task should be completed. Lastly, she makes a point to be available and open to answering any questions the team member may have about the task.
Michael then brings up a common pitfall for attorneys attempting to delegate tasks – if it’s not done right, he tends to just fix the errors instead of explaining the issues to the team member. Malorie cautions against doing this and outlines the perfect strategy for situations where the work needs to be fixed ASAP, but the team member needs to be taught the correct way for next time.
The conversation then transitions to a look at hiring and training – specifically for a paralegal position. Malorie shares how both of her paralegals started with the firm as receptionists with no legal experience. They were both trained up to the paralegal role which required a lot of work up front, but the benefit to this was they didn’t have any “bad habits.” Michael agrees that he prefers to train someone up from within, so they learn to do the job the way he wants them to, but not every lawyer agrees with this approach. They continue to discuss the pros and cons of hiring someone with experience vs. without experience, to which Malorie concludes it’s really about their ability to perform their main role of assisting the attorney.
After an insightful look at what the attorney can do to ensure their assistant is successful, they begin to discuss what lawyers can do to be leaders to their teams. Malorie reflects on the true meaning of being a leader and insists it all goes back to trust. Your team should trust you enough to tell you when they messed up, or when they need help with something.
Michael continues this line of thought with the necessity of having uncomfortable conversations about issues BEFORE they become a crisis. He recently had the opportunity to meet with Texas A&M football coach Jimbo Fisher, who is notoriously tough on his players. When Michael asked how he holds his players to such high standards, Jimbo highlighted the need for clear expectations, consistency, and for the team to believe that you hold them to those high expectations because you genuinely care about them. In order to have those necessary uncomfortable conversations, you need buy-in and trust from your team members, so they know you’re coaching them up and not putting them down.
Michael and Malorie then discuss how they communicate with their staff to lift them up. They share a variety of techniques that have worked for them, including not creating emergencies, overcommunicating, being willing to do parts of the paralegal’s job, and numerous strategies to show employee appreciation. One thing Michael has always done and will continue to do is invest in his staff’s education. He does this through weekly internal trainings and paying for his staff attend legal seminars like the annual ATAA symposium. Even the act of spending money on their hotels shows them they are valued and appreciated, and “if you buy-in, we’ll have your back.”
This leads Michael and Malorie to discuss the importance of having your team’s back. This doesn’t mean that you sweep issues under the rug- but it does mean you don’t bad mouth your team members to other people, especially to people outside of your team.
They end the episode with a discussion about managing anger and frustration, something many attorneys struggle with. Michael and Malorie both agree when someone does something wrong and it makes you upset, you need to wait until you’ve calmed down to have a conversation with them about it. Malorie finds it helpful to vent to a trusted person about what happened to let off steam, while Michael likes to take his own time to cool off. It comes down to what works best for you, so you can have a productive conversation without bringing the whole team down.
Attorney leadership, while easier said than done, is vital to the success of any law firm. This is why Michael and his firm will be dedicating the second half of 2021 to developing their attorneys into strong leaders. If this topic interests you, stay tuned for a follow-up episode later this year!
This podcast also covers why the “perfect assistant” doesn’t exist, praising your team members, why you need to avoid unrealistic expectations, Michael’s favorite strategies for building employee buy-in, and so much more.
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99 – Sonia Rodriguez – The Pursuit of Happiness: Building the Attorney-Client Alliance
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In this episode of the Trial Lawyer Nation podcast, Michael is joined by his law partner Sonia Rodriguez to discuss a topic sure to resonate with every plaintiff lawyer listening; What can we do to keep our clients happy?
The pair begins the episode with a look at why we want to keep our clients happy. While some of the benefits seem obvious, such as not having a grievance filed against you, getting positive reviews online, and gaining future business through their referrals, Michael and Sonia discuss this in more detail. Michael shares why you want your client to take your advice. And for them to do that, they need to trust you. Sonia agrees and adds that lawyers have a fairly low reputation in the eye of the general public. Clients come to you with this in the back of their minds, so it’s crucial to be upfront, honest, and transparent.
“If you have a client that trusts you, you can go forward with the case strategy as a team.” – Sonia Rodriguez
This leads them to discuss what makes clients unhappy with their lawyer. Sonia explains how the client is initially unhappy when they don’t know how the lawyer is getting paid. To alleviate this strain, Sonia makes a point to have a very frank conversation about the contingency fee and how it works during her first meeting with the client. In this conversation, she also makes it clear that case expenses are separate from the fee. Repeating this throughout the life of the case and making it nonchalant goes very far in building trust with the client.
Michael agrees and adds how crucial it is to fix your own relationship with money to have these conversations. He used to cut his fees all the time, without the client even asking. Sonia shares something that helps with her mindset – that the attorney’s fee isn’t all going into her pocket. It also pays paralegals, investigators, employee health care, etc. It comes down to valuing yourself and your services.
Michael and Sonia’s next topic of conversation is one of the most commonly filed grievances against lawyers – a lack of communication with the client about what’s going on with their case. To nip this issue in the bud, they’ve developed a system which requires a meaningful client contact at least once every 30 days (discussed in more detail in this fan-favorite episode with Malorie Peacock). In this phone call, typically conducted by the paralegal, the client is asked a series of meaningful questions and provided with an update on their case. It not only keeps the client informed, but it also helps the firm know when the client is struggling to keep up with his or her medical appointments. This helps move the case forward, adds value to the case, and helps ensure the client is happy.
After briefly discussing the commonly held belief that the attorney only cares about the money and how to combat it, Sonia asserts a powerful point; attorneys should not put themselves in the position of needing to make the client happy. With a personal injury claim can come a lot of anxiety and depression, and sometimes you can never make a client truly happy. If that is your goal, then you are setting yourself up for failure.
This leads them to talk about managing expectations with clients. Michael and Sonia both agree that bringing up any issues with the case early leads to a happier client in the end. Sonia frames it as not having a “crystal ball.” She will not tell a client early on what she thinks the case is worth. Instead, she tells the client what she “imagines the insurance company wants to pay them.” This is a great way to point out any issues in the case, while diffusing any potential rift between herself and the client and uniting them against the insurance company on the other side.
Michael adds that if the client thinks you need the money, they will doubt you when you advise them to settle. He then shares the powerful explanation that he gives to clients in this situation, where he makes it clear that he is able to take on the risk of going to trial but shares the downsides of doing so for the client.
While there can be a real, scary financial risk for young lawyers with a lot of money invested into a case, Michael shares his personal experience of losing his first $100,000 and his shocking reaction looking back on that experience. At the end of the day, choosing to settle on your advice or not is the client’s decision, and when you make that clear from the start, you don’t need to lose sleep over it.
“It hurts, but when you survive it… it’s a very liberating thing.” – Michael Cowen
Having to be the bearer of bad news comes with the territory of being a lawyer. Michael and Sonia’s next talking point explores the different ways they handle delivering this bad news without damaging the attorney-client relationship. Sonia shares why telling them in person immediately or, if possible, in advance goes a long way to salvaging and potentially even strengthening your trust with the client. She then shares a recent example where her client refused to answer a question in a deposition. Sonia pulled her aside and explained the risks. When the client chose to move forward, she understood a motion to compel could be filed; but it was a decision the client made, and Sonia supported her.
The pair wraps up the episode with Michael sharing a philosophy he learned from his New Mexico office partner, Alex Begum. At the end of the day, personal injury clients don’t usually know if the lawyer is doing a good job or not; but what they do know is how they feel when they interact with your office. Things like offering them a beverage, giving them a gift package, and not making them wait for a long time when they come to see you go a long way. And while the strategies mentioned in this episode won’t make everything perfect all the time, implementing them at your firm will help maximize client happiness over time.
“When you make people feel more respected dealing with your office than anywhere else in their lives, then they will like you.” – Michael Cowen
This podcast episode also covers why online reviews are so important and when you should ask a client for a review, why client happiness is more important in personal injury than most other practices, how to show a client you care about them and not just the money, and much more.
