Podcast: Play in new window | Download
Subscribe: Apple Podcasts | Android | Email | Google Podcasts | Stitcher | RSS | More
(6 votes, average: 4.83 out of 5)
Loading...
In this Table Talk episode of Trial Lawyer Nation, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Malorie Peacock, to answer the questions of our listeners. This show focuses on how to prove your client’s harms and losses at trial.
The first listener question is regarding the idea of whether 3X the medical bills is typically what you use to determine damages or does that only apply in certain cases? Michael recalls being taught the 3X “rule of thumb” back when he was first starting as a trial lawyer, but since then, no longer does for several reasons. First and foremost, times have changed along with insurance company practices. If an insurance company or defense attorney does start to talk to you about 3X medical bills, it’s likely because your case is worth a lot more than that. Instead, Michael focuses on what a jury might do when they look at each element of damage (pain, mental anguish, impairment, or whatever the measure of damage is in a particular state) individually and determine what they feel compelled to put in each blank. That, paired with what Michael calls “piss off factors” based on things the defense might do to compel a juror to give full justice for, becomes a number he’d like to keep as high as possible. Of course, he also takes into account whether his client is for some reason not likable or the defense is super likable, which can also affect the jury’s motivation in an adverse way for his case. Malorie also brings up another important note on the effects of jurors taking into consideration the percentage of fault even though they are instructed not to do so. To which Michael elaborates a little more on how to potentially work the messaging of that to the jury.
The next question by our listeners is how do you work up damages, especially in a smaller case that doesn’t warrant bringing in experts or producing lots of exhibits? Michael starts to answer this question by clarifying that experts generally do not help work up damages, but rather help to prove calculations on future medical expenses or a vocational loss. Having said that, with regard to the human and non-economic damages, he believes people who come in and talk about your client, how they were before, what they went through, and what they are like now can have the biggest impact. This also doesn’t cost any money toward the case. It does, however, take a lot of time in order to visit with these people to talk through what they know of the client before, during, and after, as well as collect photos or videos showing the client in a different state prior to suffering damages, etc. Michael discusses how this approach, even by taking the time to meet with people and learning your client’s story better, will make you more authentic in the courtroom which can have a profound impact on your case. Malorie sums this point up reminding us that all of our clients are more than just their injuries.
The next question they explore is regarding a wrongful death case without economic damages, which Malorie takes the reins on and starts with conveying just how hard it is to put a number on life when no amount of money will ever replace someone’s loved one. She goes on to elaborate that although you can do focus groups, they are not truly predictive. It will always boil down to the 12 jurors you get on any specific day in court who will ultimately put that number on a case. Michael adds that liability is what really tends to drive the number in wrongful death cases and it sometimes becomes very hard to have a conversation with the surviving family member(s) on the difference in the value of life versus the value of a case. He also shares how going to trial in a death case is extremely tough for the family as they relive one of the most painful events in their lives, which places a real responsibility on us as lawyers to make sure we are doing the right thing. Whether that means turning down an offer that is not sufficient to go to trial to fight for more and making an informed choice while understanding upfront the process and pain that will likely come with going through the details all over again. Malorie also describes the importance of knowing your client (a common theme throughout this episode) and understanding their goals, hopes, and struggles for their future to be able to help guide them through the conversation about money.
Proving grief is another topic Michael and Malorie explore with the belief from some jurors that everyone dies at some point. They both agree that there is a definite difference between dying when it’s time and dying when it’s not your time because of a tragic incident. Michael also points out the balancing act that occurs when you don’t want to “torture” your client and make them cry by bringing up all the pain and suffering they encounter now that their loved one is no longer here vs. focusing on the hopes that were and the plans for the future that have now changed because of the actions of someone else. He also points out that this is a good time to utilize experts like grief counselors and let them talk about the pain and suffering your client is, and will, experience due to the loss as well as the grieving process and the natural cycle of grieving to help paint an appropriate picture for the jury. They also give several other examples of ways to express the pain and loss without having to pull tears out of the surviving family members directly.
Michael and Malorie continue their abundance mentality by sharing so much great information in this episode on topics like when to submit and when not to submit a medical bill toward damages; avoiding the status quo and navigating a case to motivate a jury to give your client the justice they deserve; where do your client’s harms and losses fit into the greater story of the trial; an ideal “3 act” trial story through the juror’s eyes; how not to present your client’s harms and losses in a vacuum; how to get your client’s actual story (hint – it’s not what you might think); tips on utilizing psychodramatic methods; expediting the process of spending time with your client to understand their story; how Pareto’s Law can be applied to your docket; and so much more.
These Table Talk episodes could not happen without the interaction and questions that are submitted by our listeners. We are eternally grateful for and encourage you to continue to send us your thoughts, ideas, and questions as we love sharing our experiences with all of you.
“Please note the TLN19 discount code mentioned in this show has now expired.”
-
21 – Sonia Rodriguez – Winning (or Losing) a Case in Deposition
Podcast: Play in new window | Download
Subscribe: Apple Podcasts | Android | Email | Google Podcasts | Stitcher | RSS | More
(1 votes, average: 5.00 out of 5)Loading...
With overwhelmingly positive feedback from our listeners, TLN Table Talk is back again! This time featuring fellow partner at Cowen | Rodriguez | Peacock, Sonia Rodriguez, for a discussion mainly focused on how to win (or lose) a case in a deposition.
Michael is quick to note that many cases tend to settle before going to trial, making depositions an integral part of the process. Oftentimes it comes down to knowing the documents better than the defense attorneys while also knowing the right documents to order, which in many cases the defense may not have. It can also come down to a witness’s ability to know and articulate the truth in a deposition, which is frequently a direct reflection on those who have helped to prepare the witness (defense or plaintiff).
So how do Michael and Sonia prepare for depositions? Sonia explains her strategy of always looking back on the jury charge to see what exactly she is trying to gain from a witness, scour the defense record from production to find nuggets of useful information, dig into the footnotes, fine print, and back of pages to find what others might miss. She has also found social media to be useful to learn as much as you can on the person being deposed including who their friends and other contacts are, companies they’ve worked for, and digging in to find info on company manuals or other ways to authenticate them as an authority coming from a witness. Michael, on the other hand, points out the importance of networking and collaborating with other plaintiff’s lawyers as “we’re good at getting things and sharing information” such as prior admissions, reports, or testimony. There’s likely nothing more embarrassing for a witness, especially paid ones than to be cross-examined with contradictory testimony they gave in the past. Sonia, who recently had a deposition with a defense doctor, shares how his past testimony was the exact opposite of what he was testifying to in her case, which obviously played to her favor.
When it comes to the right length of a deposition, Sonia shares her wish to someday be able to take a short depo, but currently has her attention to detail and thoroughness to “blame” for the style of her depositions, one which sometimes drives opposing counsel mad. She tends to feel unsatisfied leaving a depo if she hasn’t covered a lot of ground, knowing the jury will likely not hear most of it. She has also found that many times when she’s taking a deposition, she’s not just doing a trial depo of a witness, but also trying to prepare in advance for a summary judgment response and how they can also be helpful to lay the groundwork for what she might need from another witness. In contrast, Michael prides himself on short but thorough depositions stating how it really depends on the witness and subject matter. He also admits the danger of taking shorter depositions in relation to “having a beginner’s mind” vs. the “curse of knowledge” where you might already know something, the defense already knows it, and the defense witness knows it, but the jury does not, and could lead to talking over the jury with jargon they might not understand. Both agree 100% no matter how you approach a deposition, you need to be actively engaged in listening to the responses and not just running down questions on an outline where you would likely miss the truly important parts of what the witness is saying, or not saying, which could make your case.
The conversation shifts to a lively debate heard in many firms of weighing the idea of “going for the kill” in the deposition vs. saving things for trial when you know the witness will be there in person. With different experiences from both Sonia and Michael prior to them partnering, each brings a unique perspective to the table from their mentors as well as from their personal experiences. Of course, they agree these tactics both have their place, but Michael also brings up the point how oftentimes with expert witnesses, if they don’t know something at a deposition, they tend to come to trial more prepared with a response.
Michael and Sonia jam pack the second half of their discussion with everything from preparing their own clients for deposition, videotaping depositions, deposing the other side’s experts, guiding medical experts to slow down their testimony while not losing the jury with industry terminology, and exceptions to all of the above.
Trial Lawyer Nation plans to do more “Table Talks” in the future, as this podcast has always been about inclusive learning for all in our industry, which includes learning from each other! Please keep submitting your questions, comments, and topic suggestions to podcast@triallawyernation.com; and be sure to like, share, and subscribe to get the latest from the Trial Lawyer Nation podcast!
Find out more about Michael Cowen here.
Find out more about Sonia Rodriguez here.
-
16 – Devin Herz and Delisi Friday – Legal Marketing that Stands Out
Podcast: Play in new window | Download
Subscribe: Apple Podcasts | Android | Email | Google Podcasts | Stitcher | RSS | More
(2 votes, average: 5.00 out of 5)Loading...
In this episode of Trial Lawyer Nation, Michael Cowen sits down with Devin Herz, Chief Creative Consultant and Founder of Dynamic Marketing Consultants (DMC), along with the Marketing Director of Cowen | Rodriguez | Peacock, Delisi Friday. Devin describes his passion for marketing from a very young age as he watched his family build a small empire of retail stores taking particular notice of the marketing that made them so successful and later leveraging his creative genes and marketing strategies to help businesses multiply their revenues.
Devin talks through how his firm prides itself on developing marketing initiatives that stand out from the average industry niched pieces and credits some of their versatility to the fact that they don’t just work with attorneys, which helps to keep things fresh. When asked by Michael about the “silver bullet” of marketing that will bring in all the cases he needs to retire in a matter of years, Devin points out several realistic views that can achieve the same result and mentions if there were such a “bullet,” we’d all likely be retired already.
Seeing as the Trial Lawyer Nation podcast is aimed at personal injury lawyers, Devin is asked about the marketing tactics he’s seen that have worked and not worked in this specific industry to which he gives the example of looking at a website. He describes the differences between a legal firm’s website that is just like all the rest, touting the attorney’s credentials, and how they’re the best and will win every case; versus one that speaks more to the intended audience on a human level while balancing the authority-building credentials, which ultimately projects a much more successful image of that firm. Delisi also points toward delivering a consistent message to your audience, citing a recent referral from an attorney they have been marketing to for a long time whom they are now excited to work with more regularly. “It’s the marathon, not the sprint” as Devin puts it. And Delisi applies this same thought process to the attorneys who advertise with bus wraps and billboards. Michael agrees with both as he recalls the different “slow burn” strategies he’s implemented with Dynamic Marketing Consultants over the years that have proven to be successful at varying rates.
Devin describes the prioritization of audiences and the group that most attorneys, and business owners in general, tend to overlook when determining the best ROI for their practice. This parlays nicely with his discussion with Michael for those who may not have a 6-figure marketing budget, where Devin describes the internal marketing processes that are important to have in place and refined BEFORE targeting tons of new clients or cases.
The topic of social media also comes up, as the three discuss the importance of being relatable online in an era where every potential new client does their due diligence before calling a lawyer. Delisi talks about being personable because “someone is going to call you if they feel like they can actually relate to you.” Michael is of the same opinion sharing the importance of not always being about business and Devin eloquently states “social media is called ‘social media’ for a reason.” With social media being a necessity for lawyers, the conversation transitions into the different ways to automate this marketing technique and topics (like politics) to be careful discussing.
Michael and Delisi conclude the episode with a look back at how they started working together with DMC and the trials and tribulations they went through (like the split testing “trial by fire” of having multiple firms market an event), before partnering with DMC in a substantial way to become a valuable extension of their marketing team.
Background on Devin Herz
With 25+ years in marketing, Devin has not only been able to hone the craft of ROI-based marketing but has accrued the knowledge required to build a world-class team of consulting and marketing experts. Early on in his professional career, he became the owner of one of Tampa’s most successful event promotion and marketing companies, during which time he was the design and/or print firm for Quiznos, Exit Realty Corporate, Engel & Volkers Corporate, Tampa Bay Lightning, Tampa Bay Super Bowl, over 50 national recording artists, and many other successful individuals and companies. He won Addy Awards for a Dairy Queen marketing campaign and for a brochure for Exeter International, and a Gold Ink Award for design. He is also the Best-Selling Author of “ROI Secrets Revealed,” and continues to share his expertise with the public in books, through blogging, and in interviews.
Book a one-on-one call with Devin:
http://dynamicmarketingconsultants.com/schedule
Background on Delisi Friday
As the daughter of a trial attorney, Delisi is no stranger to the legal industry and has over 10 years of legal experience. Her strong ties to the legal community, along with a deep understanding and respect of the litigation process, have helped her succeed in her role as Marketing Director for Cowen | Rodriguez | Peacock. With a passion for legal marketing, Delisi is regularly working on branding initiatives, seminar planning, communications, business development, and the podcast Trial Lawyer Nation. She currently serves as Chair of the San Antonio city group and on the southwest regional conference committee for LMA (Legal Marketing Association). With a previous career in television and film, including a degree from the famed AADA (American Academy of Dramatic Arts), Delisi uses the experiences she learned from shows like Friday Night Lights, That’s So Raven, and Saturday Night Live to help the firm effectively tell a client’s story to a jury.
For more info on Delisi Friday visit:
-
19 – Malorie Peacock – Trial Tips: Voir Dire, Visuals, and Technology
Podcast: Play in new window | Download
Subscribe: Apple Podcasts | Android | Email | Google Podcasts | Stitcher | RSS | More
(1 votes, average: 5.00 out of 5)Loading...
Every month, our podcast receives questions from our listeners (which we love by the way, keep them coming) and we take the time to respond to each individually. After 8 months of being on the air, we thought it might be fun and valuable to dedicate an episode to reflect and respond to some of these questions in a new series we’re calling “TLN Table Talk.” In this episode of Trial Lawyer Nation, sought-after trial lawyer and fellow partner at Cowen | Rodriguez | Peacock, Malorie Peacock, flips the script and puts Michael in the “hot seat” for an open discussion to answers questions from our listeners.
Malorie digs right in with a note from a listener that asks – “Knowing that we all need to try more cases to get better, and sometimes you just can’t get to trial for one reason or another, how do you practice for the big moment of going to trial?” Michael reveals how he personally prepares for each trial and his approach toward different types of cases and jurors, along with his thoughts on prepared scripts. He goes on to share outstanding insights about planning and practicing for voir dire, where you don’t know what the jury panel is going to say; and allowing the truth to be acknowledged without letting it throw you off your intended path. Interestingly enough, Michael’s use of pizza and beer to get a deeper understanding of a case, while simple in practice, can also be incredibly useful in the courtroom. Michael also opens up about his rekindled respect for inclusive voir dire with a recent example of a case that turned a $125k offer into a $1.25M verdict, seemingly built in voir dire, before any evidence was ever discussed.
From there, Malorie talks with Michael about the firm’s strategy in trying most cases in pairs and asks him why he believes it’s better. His answer is perhaps not what you might expect, and the discussion shifts toward courtroom perceptions. Michael and Malorie both agree that every perception matters: from how you dress, to how you interact with your staff, to how people see you drive away in the parking lot. The same goes for your client too! Both also agree that understanding visual communication is extremely important as a trial lawyer.
Trial technology seems to be a hot topic for our listeners with all kinds of questions around what types we use, how we utilize them, and the thoughts around why we use them (or not). Michael is quick to point out that we all need to remember the purpose of the tech and the need to tailor the tech to the case, so you don’t look too slick when the other side brings in a manila folder and a legal pad. He does recommend that if the courtroom, and your budget, allows, there are some specific pieces of technology that are far better in his opinion in helping jurors understand pieces of evidence, so long as you are comfortable with it and prepared to proceed when it doesn’t work.
Michael and Malorie close the conversation in talking through strategies on figuring out how much money to ask a jury for and how to actually ask for it, the details of which you’ll have to listen to learn. Trial Lawyer Nation plans to do more “Table Talks” in the future as this podcast has always been about inclusive learning for all in our industry, which includes learning from each other! Please keep submitting your questions, comments, and topic suggestions to podcast@triallawyernation.com; and be sure to like, share, and subscribe to get the latest from the Trial Lawyer Nation podcast!
For more information about Michael Cowen, go here.
For more information about Malorie Peacock, go here.
