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In this Trial Lawyer Nation podcast, Michael Cowen sits down with Ohio attorney, Andy Young, who like Michael, specializes in trucking cases.
Andy’s journey over the past 20 years of practicing law and ultimately specializing in trucking cases started by accident when his hobby for rehabbing trucks, as well as starting a trucking company, turned out to be more valuable than he expected where he was being asked to speak at various trucking litigation groups. Essentially his passion for “anything on wheels” and his upbringing around big equipment propelled him toward the industry as well. He goes on to establish upfront that he indeed does not hate the trucking industry as some might conclude by having become a trucking attorney. Andy cares deeply for the truck drivers as well as the component of the industry that treats the drivers well while also explaining in great detail the parts of the industry he does not care for, which abuses the drivers and stokes safety issues all in the name of profits. He goes on to say that everything he does “ultimately is in favor of safety and in favor of the truck drivers too.”
Beyond filing lawsuits to try and improve the trucking industry, Andy is also involved in several advocacy efforts having originally become involved through some articles he had written and published back in 2011 on underride crashes, which have evolved all the way through giving testimony to Congress on the issue. He talks through some of the efforts that he’s been a part of in shining a light on the issues that surround truck crashes, specifically underride guards and rear guards, where the industry has made significant strides to reduce fatalities from crashes involving underrides in Europe, but continue to lack in the United States. While Andy has started to see the needle move a little bit in regards to instituting safety features that would prevent such fatalities, he also sees the trailer manufactures resist the urge to make their products safer while using federal regulations as a scapegoat for not making these life-saving improvements. This transitions into Andy sharing how helpful it can be for the families who have lost a family member to a truck crash to become active in safety advocacy as a way to give them some purpose to their loss.
Michael asks Andy, with his unique perspective as a truck driver and running a trucking company, what he’s learned to make him a better trucking lawyer. Undoubtedly, Andy refers to his time behind the wheel as being the most valuable and suggests that those who are looking to be great trucking lawyers do what Michael Cowen did and go to truck driving school to get a more intimate understanding of what truck drivers experience as well as a better understanding of what it’s like to maneuver such large pieces of equipment. Andy also continues to use his truck driving skills as a part of a small race car team where he drives the truck that carries the car and finds himself constantly thinking about his cases every time he gets behind the wheel. This has allowed him to more effectively communicate with truck drivers better and understand things that perhaps other attorneys might not consider. He goes on to describe several examples of how this has come in handy citing personal experiences that have helped him to debunk some theories placed on truck drivers in cases when it comes to the speeds they travel at in relation to what gear they are in, which he notes has “been very, very beneficial.”
The conversation shifts to Andy discussing his great results in the face of some fairly tough fact patterns, where Andy goes into detail regarding his litmus test on how he decides whether to take on a case. It’s worth noting that he does not think it matters whether his client has hit the back of a truck, has had a DUI, were speeding, or had some other issues going on. Instead, he looks at the truck driver and the truck company to see if they created a hazard whereby a crash would not have happened otherwise to determine if the case is worth pursuing or not. He goes into further details on case selection tips, including spending some money upfront to explore how the hazard was created and/or how it was confronted.
Moving the conversation into the courtroom, and wrapping up this podcast, Andy describes some of his techniques and analogies he uses to keep his case in a positive light including one he uses with his clients who are angry about their loss (rightfully so) but are in need of help to not become their case’s worst enemy by displaying their hostility. Another analogy he uses with his clients refers to how to determine what’s important and what’s not at trial, which he’s found to resonate well with his clients when he establishes the analogy with his clients early on. Andy also uses a technique where his client’s home is used as a witness, which is truly fascinating and the way he walks through it, literally and figuratively, can really give things a whole new perspective. Truly some incredible strategies and techniques worth listening to and incorporating into any case that’s going to trial.
BACKGROUND
Andrew (Andy) R. Young concentrates his practice on catastrophic truck crashes and wrongful death litigation. He holds an active, interstate, Class A Commercial Driver’s License (CDL) and regularly drives his own Peterbilt semi-tractor and 45-foot racecar trailer. He has testified as a Truck Safety Advocate before the U.S. House of Representatives, Subcommittee on Highways and Transit. He is a member of the Owner Operators Independent Drivers Association (OOIDA). He has testified on behalf of OOIDA and the Ohio Association for Justice’s Truck Safety Section before the Ohio Senate Transportation Committee. He serves as an Executive Officer of the AAJ Trucking Litigation Group and is the immediate, past-president of the Lorain County Bar Association (LCBA). Mr. Young is “AV” rated by Martindale-Hubbell, has been included in Ohio Super Lawyers, and has received numerous awards from AAJ TLG, OAJ, and was the LCBA Member of the Year in 2016. Mr. Young serves on the Board of Regents for the Academy of Truck Accident Attorneys (ATAA) and serves as the ATAA’s current Education Chair. He lectures frequently at continuing legal education programs on trucking litigation and trial advocacy. Mr. Young has served as a Moderator and on the Organization Committee for two industry “Truck Underride Roundtables” hosted at the Insurance Institute for Highway Safety (IIHS) at their crash test facility in Ruckersville, Virginia. Mr. Young is also member of the American Board of Trial Advocates (ABOTA). Mr. Young is a partner with Young and McCarthy, LLP, located in Cleveland, Ohio and works with attorneys throughout the nation.
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54 – Michael O’Neill – Delivering Justice: From UPS Defense Attorney to Plaintiff Trial Lawyer
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In this Trial Lawyer Nation podcast, Michael Cowen sits down with former defense attorney for UPS and current plaintiff attorney, Michael O’Neill. This show covers an array of topics, including the defense’s advantages in catastrophic injury cases, why O’Neill switched sides of the courtroom (and why it made him such a good plaintiff attorney), what companies can’t defend against, and why referring out cases can make you more money.
The episode kicks off with Cowen asking O’Neill why large companies use the same defense firm for cases around the country. O’Neill says the lawyer needs to know a very specific field, know the company well, and have a consistent defense. O’Neill would receive a call in the middle of the night or on a weekend and would need to travel immediately to the scene of a crash. UPS would refer to this as “boots on the ground.” He emphasizes that marshalling evidence while it’s fresh is pertinent to the success of any case. O’Neill shares a story of a time where he went to the scene and pointed out a detail the police missed which would have hurt their case on liability. He was also there while the police were writing their reports and describes how he could influence what was written. Cowen and O’Neill discuss the defense’s role in shaping the narrative of the case from the start, the role of psychology with the first responders, the defense’s advantage in this, and what plaintiff lawyers CAN (but most DON’T) do to combat this.
Cowen then asks what everyone’s thinking; why did O’Neill switch to the plaintiff’s side? O’Neill replies that the curiosity has always been there. He then describes a scenario, not uncommon to him, where he had a defense verdict on a case he believed “that’s an easy 7-figure case that should have been won and we zeroed them.”
The conversation shifts to what companies CAN’T defend. Both agree on exposing poor training programs as the key to winning “nuclear verdicts” in commercial vehicle and trucking cases. They discuss this and other factors which make the case about the 3 months before, as opposed to the 5 seconds before the crash. O’Neill then brings up a defense trucking podcast by FreightWaves which recently discussed the defense’s fear of “the second lawyer” and the impact of referral attorneys on the insurance industry. As a “second lawyer” himself, Cowen shares a recent example of an insurance company who learned once he became involved all prior negotiations at a much lower number were out the window.
One of the most important details for a successful catastrophic injury lawyer to accomplish is to make the case about the company, not the individual. Cowen shares a story of a case where the CMV driver was high on meth at the time of the accident. The case against the driver was already strong, but when asked by a colleague why he was working so hard on the case Cowen replied, “It doesn’t take much money to teach a meth head a lesson. It needs to be about the company and what it takes to teach the company a lesson.” O’Neill echoes this with another great example of a strong case that he made even stronger by putting in the work.
O’Neill and Cowen then praise trucking trial lawyer Joe Fried and how instrumental he has been on creating the current “abundance mentality” of the Academy of Truck Accident Attorneys (ATAA). The ATAA abundance mentality encompasses the idea that there are plenty of trucking cases to go around, and we all perform better when we share information and establish good law. “The tide raises good ships,” O’Neill eloquently responds. When comparing this to the defense bar, O’Neill says the difference is night and day. Information on the defense side is kept from one another because there are fewer clients and essentially everyone can be your competition. He goes as far as to say that the way the plaintiff’s bar shares information “terrifies the defense.”
They then move into a discussion on the transition process from defense to plaintiff lawyer. Cowen asks O’Neill what it has been like changing into a role where he works at a firm that now funds cases and isn’t paid by the hour. O’Neill discusses some transitional difficulties, but insists he has been made confident through his experiences as a defense attorney, stating, “You start giving big checks to mediocre lawyers and you start to wonder, why am I not on the other end of this conversation?” Cowen then describes his history of funding cases by sharing his expertise in finance management and smart firm growth.
The conversation concludes with a discussion on package car cases- What makes them different from trucking cases? Why can they be so complicated? O’Neill highlights the necessity for specialized knowledge in this area, stating, “There’s a million ways to skin a cat, but you have to know how to skin the cat.” Because shipping companies usually work with subcontractors as delivery drivers, it can be difficult to make the case about the company. O’Neill shares valuable insight into how he’s overcome this barrier.
This podcast also covers efficient docket size, the order of your depositions, networking, direct to public marketing versus B2B marketing, and much more.
ABOUT THE GUEST
A northeastern Pennsylvania native, Attorney Michael O’Neill handles catastrophic injury litigation, including representing those who were in motor vehicle and truck accidents, medical malpractice, product liability, and premises liability. A former senior litigation associate at DLA Piper LLP, and a founder partner at a national litigation boutique law firm, O’Neill has served as first chair trial attorney in over 25 jury trials, or their equivalent, in ten different states. All of these complex litigation matters involved disputes of seven figures or more and resulted in successful verdicts or settlements.
With more than 20 years of complex litigation experience, O’Neill has appeared multiple times on NBC-10 television in Philadelphia, numerous radio broadcasts and national podcasts as a legal expert and to discuss cases he is handling on behalf of catastrophically injured people.
O’Neill is admitted to the Supreme Court of Pennsylvania, Supreme Court of New Jersey, and the Supreme Court of New York, as well as the United States District Court for the Eastern District of Pennsylvania, Middle District of Pennsylvania, Western District of Pennsylvania, District of New Jersey, and the Northern District of Texas.
O’Neill also has a distinguished military service record as a veteran of the United States Army. He is an honors graduate of the U.S. Army Officer Candidate School and the U.S. Army Aviation and Warfighting Center, was commissioned as a second lieutenant and trained to fly helicopters for the Army and the Pennsylvania National Guard. He remained active in the National Guard until 2005 and is a member of the First Troop Philadelphia City Cavalry, one of the oldest recognized organizations in the United States military.
O’Neill earned his Bachelor of Arts degree at the University of Scranton and received his Juris Doctor from the Villanova University School of Law in 1998. While at Villanova, he focused on litigation-related curriculum and after graduation taught trial advocacy for seven years as an adjunct professor. A lifelong athlete, he played collegiate football and baseball and was inducted into the Wayne/Pike County Area Sports Hall of Fame in 2018. He also has held a civilian aviation license for more than 30 years.
Michael O’Neill joined the offices of Fellerman & Ciarimboli in Philadelphia on March 1st.. He can be reached by phone at (215)776-5070 or by email at mjo@fclawpc.com.
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65 – Malorie Peacock – Lessons from a Virtual Seminar: Successful Applications in a Courtroom and Online
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In this Trial Lawyer Nation podcast, Michael talks with his law partner Malorie Peacock to discuss his recent virtual seminar, Cowen’s Big Rig Boot Camp. They draw parallels between the seminar and the courtroom, including utilizing camera angles through Zoom, energy management, and how to use slides and graphics effectively. Michael also shares a sneak peek inside his upcoming Trial Guides book on trucking law.
The episode begins with a brief overview of what Cowen’s Big Rig Boot Camp looked like in 2020. While it remained a 6-hour trucking seminar, it was done entirely virtually. Michael describes the multitude of tactics he used to keep the audience engaged, which included celebrity appearances and surprising attendees with actor and comedian David Koechner live.
He notes one of the biggest engagement factors was the use of multiple camera angles and a professional AV crew. Through this, he was able to stand for the presentation and use hand gestures naturally. Malorie and Michael draw parallels between this and a Zoom hearing or trial and agree they’d like to find a way to stand while conducting Zoom hearings. Michael goes as far as to say he’d like to set up a Zoom “studio” in the office in the future, and says he would even hire a professional AV crew again if he had a very big hearing or a virtual trial.
Malorie comments on how surprised she was that utilizing multiple camera angles made such a big difference in the presentation engagement. Michael agrees, and explains how he first heard of this concept from Mark Lanier who utilizes a 3-camera setup for his depositions. When showing depo footage in trial, Lanier will only show the same camera angle for 7 seconds. (This is how they do it in the news media to keep the audience engaged.) If virtual trials move forward, these concepts will all need to be considered to effectively produce a dynamic virtual experience which holds the jurors’ attention.
Malorie then asks Michael a question which must be on everyone’s mind, how did you keep your energy up for 6 ½ straight hours of speaking to a camera without a live audience? Michael notes how similar this was to presenting in a courtroom – you can be absolutely exhausted, but as soon as you step in the room, “you’re on.” He also explains how you can’t be high energy the entire time without coming off frantic and stressing your audience out. The key is to have a range of highs and lows, which serves to conserve your energy and make the highs more impactful.
This type of energy management has taken Michael years to master, and he shares an insightful story from a trial 15 years ago where he learned an important lesson – even if you can’t say everything you want to, you need to slow down and make it about the listener.
Michael goes on to explain his mindset change through the teachings of Carl Bettinger in the book “Twelve Heroes, One Voice.” He used to think it was his job to win the case, but now he knows that’s the jury’s job. And by incorporating this mindset, it’s abundantly clear that the jury deeply understanding the case is much more important than you saying everything you want to say. Malorie then describes her own journey through this, when she was told she speaks very loudly when she’s telling a story she’s passionate about. She realized this comes off as abrasive when the jury isn’t there with her yet and has worked to consciously change this.
Another strategy Michael used to manage his energy during the presentation was the strategic use of PowerPoint slides. He incorporated a variety of both “busy” slides filled with information and simple slides with just a topic or phrase. While presenting the information dense slides, he could be lower energy. But when there was a simple slide, he knew he had to be high energy to carry that portion of the presentation.
This leads Michael and Malorie to discuss the larger applicability of these tactics in the courtroom. When presenting in trial, Michael utilizes completely blank slides in his PowerPoints when he wants the jury to be focused on him. While they both agree more visuals will be necessary in a virtual trial, they recognize the need to incorporate film professionals to make those visuals effective.
On the topic of visuals, they shift to the role of graphics in the courtroom. Michael and Malorie agree that often a simpler graphic is much more effective than an intricate, expensive graphic from a courtroom exhibit company. Michael sums this up perfectly by stating, “If we have to explain the graphic, then we’re losing them.” He’s enjoyed working with his firm’s own graphic artist, and also recommends looking at Upwork and hiring an artist on a contract basis. Malorie adds you can even create some very effective graphics yourself in PowerPoint without spending a dime. This all boils down to the fact that you can’t win a complex case, and while intricate and expensive graphics certainly have their place in the courtroom, they are often overused and frankly a waste of money.
Malorie then shifts the conversation to a discussion of Michael’s upcoming book on trucking law, which Michael previewed during the virtual seminar. One of the major aspects of his research focused on electronic logs for truck drivers, and how they cheat on them. Michael explains how even though truck drivers are allowed to work up to 70 hours a week already, they spend so much time on unpaid activities (deliveries, loading, inspections, etc) they need to cheat in order to make a decent living. Trucking companies have been recommended to pay by the hour or a salary, but they almost always choose to pay their drivers by the mile because it’s better for the company economically.
Michael then describes numerous ways these drivers cheat their logs, including driving on “personal conveyance” time, creating a “phantom driver,” and more which are so intricate they need to be heard to be believed.
Michael and Malorie wrap up the episode with some terrifying facts. Michael spent some time researching drug testing protocols for truck drivers, where he was very disappointed by the current system. Through a plethora of methods, drivers successfully cheat on urine tests and stay on the road. One study indicated as many as 310,000 truck drivers on the road today would fail a hair follicle drug test if given one, to which Malorie replies, “What if that number was commercial airline pilots? People don’t think that way, but they should. These things are huge.”
This podcast also covers Sari de la Motte’s teachings, courtroom models and exhibits, how to catch a truck driver who cheated on their electronic logs, raising the minimum insurance limits for trucking companies, and so much more.
If you’d like to attend Cowen’s Big Rig Boot Camp in 2021 in person or virtually, visit www.BigRigBootCamp.com for live updates.
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04 – Tim McKey – The Business Side of Practicing Law
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In this Trial Lawyer Nation podcast, Michael Cowen talks with Vista Consulting’s Owner, Tim McKey, who has been consulting on operational matters with successful plaintiff law firms since 2008.
Tim’s CPA background steers his focus toward numbers and metrics but he concedes that there is a lot more that goes into running a successful practice such as culture and human resources, which allows him to approach firms from a holistic stance. As a client of Vista, Michael shares that he has a personal appreciation for Vista’s value to plaintiff firms, which he also acknowledges has allowed him to sleep better at night knowing the firm runs smoother than ever.
Michael explores with Tim his launching point in working with plaintiff firms; and discovers the strategic decision Tim made after owning his own CPA firm, which drove him to work with attorneys in a big way. Tim also describes his passion for helping firms define success and desire to help CHANGE the score instead of just KEEPING the score as a substantial motivation. During his transition to the consulting world, Tim lightheartedly recalls how similar the process turned out to be for his first two clients; those being a plaintiff’s attorney and business at the polar opposite end of the spectrum (tune in to hear what the other business was). The process Tim uses to examine and analyze a firm is noted to work regardless of years in practice and focuses specifically on tightening up potential deficiencies within the firm and its client acquisition practices.
While being empathetic to the fact that attorneys, in general, are not introduced to business practices before setting out to run their own law practice, Michael recalls his early days in another law firm where trial and error was the modus operandi of their operations, long before he was introduced to Vista’s techniques. The difference between effective and efficient systems and processes are the cornerstone to what Tim advises throughout this episode as he offers listeners insights into breaking down their firm’s data to a dashboard view of the practice and what to do next.
This podcast concludes with Tim explaining things a step further to amplify the importance of having a project point person throughout the process of using what he calls the “public restroom theory.” It’s a wild analogy, but it hits home tremendously to anyone who tends to have lists of 100 “great ideas” being worked on by the firm. And for anyone who has felt the pain of turnover in their office, Tim talks about the mentality of “hire slow and fire fast,” along with the tools, training, and expectations being a key part in the onboarding process to set an employee up for success.
Background on Tim McKey
Tim co-founded Vista Consulting in 2009 with a vision to help plaintiff law firm owners reach their full potential. Tim has traditional CPA experience with local, regional, and national CPA firms. However, it is through Tim’s prior consulting practice that he found his passion. He has worked with many business owners assisting them with defining and attaining success in their business and personal lives.
Tim’s experience and interest allow him to assist Vista clients with developing a realistic vision of their firm into the future, creating a strategic plan to achieve that vision while working with firm owners in designing their desired lifestyle. Tim assists his clients in reviewing firm tax entity structure and accounting systems analysis, and financial reporting.
For more info on Tim McKey visit https://www.vistact.com/meet-the-team/tim-mckey.
