Podcast: Play in new window | Download
Subscribe: Apple Podcasts | Google Podcasts | Stitcher | Email | RSS | More
(7 votes, average: 4.71 out of 5)
Loading…
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.”
-
40 – Ken Levinson – Focus Groups and Metaphors
Podcast: Play in new window | Download
Subscribe: Apple Podcasts | Google Podcasts | Stitcher | Email | RSS | More
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
-
50 – Sari de la Motte – Voir Dire & Opening: Forming The Best Jury Possible
Podcast: Play in new window | Download
Subscribe: Apple Podcasts | Google Podcasts | Stitcher | Email | RSS | More
In this Trial Lawyer Nation podcast, Michael Cowen invites Sari de la Motte back to the show. Sari was one of our top episodes in 2019, so to celebrate 50 episodes and over 100,000 downloads we invited her to be our first returning guest. This show will cover voir dire, opening, the concept of group communication, and how all of these concepts help you form the best jury for your case.
To start things off, Sari shares that her book “From Hostage to Hero: Captivate the Jury by Setting Them Free” is now available for purchase. She reveals how her desire to help trial lawyers understand why jurors “don’t want to be there” (summoned for jury duty), how to deal with this, and then lead them from their “hostageness – their inability to say no to this process” to choosing to be a part of the jury, was how the idea for the book began. Michael adds how initially this reminded him of Carl Bettinger’s book “Twelve Heroes, One Voice” in that both Carl and Sari believe it is important to help your jury become the hero in the case. But after working with Sari, Michael sees how she focuses more on the hostage aspect, shows you how to release the jury panel from this, works to help you understand how important nonverbal communication can be, and gives practical tips to use in the courtroom.
Jumping right in Michael introduces the highly debated topic of “inclusive voir dire” versus “exclusionary voir dire.” He reveals how in the past he has used exclusionary voir dire to find his bad jurors, but understanding Sari’s thoughts on the “hostage mentality” has made him rethink his voir dire technique. Putting it bluntly Sari gives the example of “when you come in with the mindset of ‘who here is out to kill me and how do I kill them first’ that is like a poison and a disease” which then spreads and has your potential jurors wanting to find a way to get out of being selected for your jury. A different mindset where you find the people who want to help you can change this and Sari’s analogy involving hiring a new paralegal and sorting through resumes helps put everything into perspective.
Michael pivots the conversation into how important mindset is for trial lawyers. Sari truly believes “how you’re thinking, affects how you act, which affects your results” and explains how the CTFAR model can help. Michael gives the example of his mindset before his upcoming jury trial and how he is reminding himself “jurors are good people and want to do the right thing and help my client.” This example leads to Sari sharing just how useful the mindset of “the jurors love me” was for a client of hers and how the success of this led to a $10 million dollar jury verdict. And if you are thinking “this is bullshit” Sari explains the communication science behind it and why it works.
Moving from mindset back to voir dire, Sari and Michael discuss how frustrated potential jurors are in the jury selection process. When jurors are not sure why they are there and what is happening it’s critical to get to the point and say what they are in court to do. The next step is to then think about voir dire as a group process and not an individual process, because you are there to create a group and you want a group to reach a verdict in your case not 12 individuals. Michael adds how equally important it is to think about the information you share with the group, the order in which you share it, and how you shape the conversation. The order in which you share your information is crucial and your timing is too, which leads to Sari explaining how jurors will immediately think whatever principle or fact (good or bad) you bring up first is the most important part of your case.
Michael wraps up this episode with a discussion on managing energy. He shares his experiences as a trial lawyer by describing his energy level as a young attorney as being extremely high energy at all times, but then when he tried to slow down he came across as “low energy and passionless,” and now he has learned about “managing energy” to keep the jury engaged and never bored. “Ringing the bell” is an engaging way for attorneys to keep the jury on the edge of their seat and is described as a tool for great storytelling in your opening. However, these techniques are not natural and as Michael points out you have to practice before you do this in front of the jury successfully. Practice should not be confused with scripting an opening, so Sari reminds listeners this is for “the ease and the delivery of information not rehearsing it word for word.”
The podcast is filled with additional great advice ranging from the importance of videotaping yourself, why it is imperative to rehearse saying the dollar amount you want a jury to award, thinking about the principles in your case, how journaling can help you in your mindset, using devils advocate questions, thinking about voir dire and how it connects jurors to you in your opening, and so much more. It’s truly a show any attorney will want to listen to more than once.
BACKGROUND ON SARI DE LA MOTTE
Sari de la Motte is a nationally recognized coach, speaker, and trial consultant. She has trained extensively with an internationally recognized authority in nonverbal communication and is an expert in nonverbal intelligence.
Sari specializes in helping trial attorneys communicate with jurors.
Sari speaks to audiences of a few dozen people to audiences of over a thousand. A sought-after keynote speaker, Sari is often asked to headline conferences across the United States.
Sari consults with trial attorneys all over the country, assisting with trial strategy, voir dire and opening statement. She conducts mock trials in her studio in Portland, Oregon and assists with jury selection on-site.
Sari has spoken for, and works with, several members of the Inner Circle of Advocates, an invitation-only group consisting of the top 100 trial attorneys in the United States. She’s has been a featured columnist for Oregon Trial Lawyer’s Magazine, Sidebar, and has also written for Washington State Association of Justice, Oregon Criminal Defense Attorney, and other legal publications. She provides CLEs for various state association of justices around the country. Because of her unique ability to help attorneys communicate their real selves, she has been dubbed “The Attorney Whisperer.”
Sari is regularly interviewed on TV, radio, and in print, and has appeared in the Atlantic, Huffington Post, The Oregonian, Willamette Week and other publications. Her book, From Hostage to Hero: Captivate the Jury by Setting Them Free was released by Trial Guides in November, 2019.
For more information on Sari de la Motte you can visit http://www.saridlm.com/
-
76 – Benedict Morelli – Never Deviate: Telling the Truth, Trusting Your Instincts & Taking Risks
Podcast: Play in new window | Download
Subscribe: Apple Podcasts | Google Podcasts | Stitcher | Email | RSS | More
In this episode of the Trial Lawyer Nation podcast, Michael sits down with legendary trial lawyer Benedict Morelli. With several 8 and 9-figure verdicts under his belt from a wide range of civil litigation areas, Ben’s track record as an attorney and advocate is known across the country, from suing Bill O’Reilly for sexual harassment and representing Tracy Morgan in his trucking case against Walmart. He and Michael discuss Ben’s story and path to success, a number of his high-profile cases, how he connects with the jury, and so much more.
Ben’s legal career started over four years before he passed his bar exam, while he was working at a law firm in an administrative role. There, he had the opportunity sit in on several jury trials and jury selections. Because of this, he had a head start in figuring out what strategies worked for him, namely authenticity in front of the jury. He continues to hone his craft today by researching other cases and their results. Interestingly, he doesn’t focus so much on the amount the jury awarded. Instead, he digs deeper into the facts of the case to analyze how great the verdict really was and encourages his team of young lawyers to do the same.
After Ben explains that he simply refuses to play by the insurance’s rules of offering about half of what you ask for, Michael digs deeper into where Ben gets his courtroom confidence from. Ben uses something he calls “Ben Morelli’s personal moot court” and seeks feedback from his friends and family. He also references Tracy Morgan’s trucking case against Walmart, eloquently stating “When I have a royal flush, I don’t play it as a pair of two’s.” If you have a strong case in a good venue, have the guts to stick to your number while also analyzing the risk vs. the reward.
Ben is now at the point in his career where his reputation precedes him, and he shares a SHOCKING story from his case against Live Nation where it worked to his advantage.
Michael then digs in to one of Ben’s biggest strengths, how skilled he is at connecting with the jury. His short answer is, “I am them. I’m exactly them.” He grew up like most of them, doesn’t talk down to them, and ALWAYS tells them the truth. He also NEVER uses jury consultants or a mock jury, which is in stark contrast with how many of our previous guests choose a jury. Instead, he goes into voir dire with no bag, paper, or even a pen and ALWAYS sticks to his theory. He insists that his own instincts and knowledge have served him better over the years, and that “When I bet on the jury, I win.” While a unique approach, this technique has served him so well that he’s been told my numerous judges that he won the case in jury selection. He concludes this topi by clarifying that the most important thing is that you stick to who you are, and find what techniques work for you instead of “drinking the Kool-Aid.”
Ben is also unique by today’s standards because instead of specializing his practice, he takes on a wide variety of cases in different practice areas. His philosophy on this is that if it’s a civil case, he can learn it. He also genuinely enjoys the challenge and takes a lot of pride in the diversity of his practice, something he urges other lawyers to consider before they specialize.
Michael then asks Ben how he motivates and educates his large team of young lawyers. Ben describes his daily meetings with his lawyers and also with his staff. “I’m never too important,” he continues. Every attorney in the firm knows he will personally read every single thing they write. Michael agrees with this philosophy, and he and Ben discuss why it’s so imperative to stay involved in the litigation aspect of your firm, even after you’ve built up a great team.
The pair ends the episode by discussing two of Ben’s star-studded cases – Tracy Morgan’s trucking case against Walmart and suing Bill O’Reilly for sexual harassment. After sharing what it was like to represent a celebrity of Tracy Morgan’s caliber, he explains how suing Bill O’Reilly was one of the most nerve-wracking cases he’s ever had. They went after Ben, his wife, and his practice “with a vengeance.” The details of this story are shocking and Ben’s decision to stick with the case is truly inspiring.
This podcast also covers individual case lawyers vs. mass tort case lawyers, how Ben orders his witnesses (and why it’s SO important), how to internalize what your client’s been through, the power that plaintiff’s attorneys have, Ben’s record-breaking sexual harassment suit verdict, why Ben chose not to specialize his practice, and so much more. This episode is full of insightful and inspiring stories that are well worth the listen!
Guest Bio:
Benedict Morelli is one of the most successful plaintiff attorneys in the country, securing numerous multimillion-dollar results, including a $95M verdict in a sexual harassment case and a $102M verdict against Live Nation. He also helped negotiate a $265M settlement – the largest settlement for a passenger railroad accident in US history – for victims of the 2015 Amtrak train derailment. Mr. Morelli and his firm often litigate high-profile cases, including representing comedian Tracy Morgan in his lawsuit against Walmart and being one of the first to successfully sue Bill O’Reilly and Fox News for sexual harassment. He has deep experience in a variety of civil matters, including personal injury, truck and auto accidents, employment discrimination, medical malpractice, and product liability.
