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In this episode of Trial Lawyer Nation, 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 episode 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/
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24 – Michael Leizerman – The Zen Lawyer: Winning with Mindfulness
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(3 votes, average: 5.00 out of 5)
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In this episode of Trial Lawyer Nation, host Michael Cowen sits down with a brilliant trial lawyer, national speaker/lecturer, and author, Michael Leizerman. Cowen has learned an enormous number of methods and approaches over the years from Leizerman who takes mindfulness to a whole new level in and out of the courtroom.
The discussion begins with an in-depth look at the “beginner’s mind” and understanding how it adds to a case, and life, infinitely. Leizerman uses the example of the hierarchy of karate, where becoming a “black belt” is commonly misconstrued as becoming a “master,” when it simply means you are at the first level of Dan, meaning you are now a beginner once again. He also points out that he takes it upon himself to know when he feels like he has mastered anything, he needs to remind himself he is just a “beginner,” otherwise the jury will, his wife will, or life, in general, will remind him. As the discussion progresses, Leizerman and Cowen discuss the idea that in the beginner’s mind, there are many possibilities, whereas, in the master’s mind, there are few. Leizerman likes to bring this mindset to many aspects of his work and discusses how he uses it in depositions, saying, “There’s a feeling like I’ve never done one before” while holding confidence about himself knowing exactly what he wants to get out of the time.
In each case Leizerman approaches, he works to become mindful of what he calls “the 5 core truths,” which are also the basis of his book The Zen Lawyer: Winning with Mindfulness, as well as an essential part of the workshops he puts on with Joshua Karton [link to his episode] and Jay Rinsen Weik. He describes the mindfulness around the 5 core truths (Physical, Emotional, Logical, Motivational, and Zen) as being seen as simultaneous truths in every case and with the understanding that each core starts with the lawyer and their own understanding and experience. Leizerman talks through examples of each core including a powerful example where emotional truth was used in a case to show where a father’s simple love for his son led them to put the case on the line and not ask any questions of a witness. He also reveals how he used the 5 cores in a case which led to a record wrongful death verdict in Ohio and also why he believes lawyers don’t get large verdicts or are disappointed in verdicts. Hint, hint, it’s all based on these core truths.
Cowen and Leizerman agree sometimes trial lawyers forget that jurors, in general, want to see good done and want to help people and these core truths can motivate jurors to see their way to the best outcome based on their own truths. Leizerman also talks through the “curse of knowledge” we, as trial lawyers, have when we’re in front of a jury and it sometimes goes over the jury’s heads to where they feel “submerged” or lost in all the details.
Leizerman recalls coming to the conclusion after dissecting a case post-trial: we tend to bring the anger of a case to the courtroom without allowing the jury to experience it. Having a beginner’s mindset allows him to be the one who is grounded and the one who people look to for guidance vs. seeing him as the angry attorney who gets mad when things don’t go as planned. He finds that allowing the jury to experience the frustration for themselves when a defendant tells different stories that are contradictory instead of the lawyer pointing it out and calling them a liar, can become the lynchpin in a case. It comes down to letting the jury experience it for themselves vs. the jury trying to experience it through the upset lawyer. He makes note that when you get angry, it takes away the anger from the other party, even in many other significant relationships. In other words, if you get angry in the courtroom, often times it takes the anger away from the jury, the individuals you really want to experience the anger. He also points out if we were just analyzing the facts of the case, we could use a computer for that. We’re in the courtroom to live through the case and be the case that gets decided by the jury.
Cowen extracts many more nuggets of mindful wisdom from Leizerman throughout their conversation, including a hint to a possible addition to Leizerman’s authorship with a book on transformational storytelling, as well as how listeners can learn firsthand from him at the various workshops he holds throughout the year. This was definitely an exceptionally insightful interview with Leizerman and we look forward to learning more from him in the near future.
Guest Bio:
Michael Jay Leizerman is the co-founder of the Academy of Truck Accident Attorneys (ATAA). He concentrates his practice in select catastrophic injury truck collision cases across the country.
Michael is the author of the Thomson West/AAJ three-volume treatise, Litigating Truck Accident Cases. He was the first Chair of AAJ’s Trucking Litigation Group. Michael attended truck driving school and obtaining his Commercial Driver’s License while managing his law practice.
He has taken 14 truck and bus cases to trial in the last decade. He has received record-breaking truck accident settlements and verdicts across the country, including multiple verdicts with punitive damages. He has received over thirty multi-million dollar settlements and verdicts, including six settlements and verdicts in excess of $10 million.
Michael is the author of the Trial Guides book The Zen Lawyer: Winning with Mindfulness, published in 2018. He puts on a series of workshops teaching his Core Method, including meditation, Aikido and theater skills for lawyers (along with co-teachers Jay Rinsen Weik and Joshua Karton).
Learn more at his website www.TruckAccidents.com.
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37 -Sonia Rodriguez – Caseloads: Quality vs. Quantity
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In this episode of Trial Lawyer Nation, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Sonia Rodriguez, for another installment of TLN Table Talk to answer the questions of our listeners. This show focuses mainly on questions revolving around caseloads and determining the best approach for your practice.
The first question from our listeners is about the number of cases an attorney should take on at any given time. Sonia discusses the balancing act, especially for younger lawyers, of quality vs. quantity. Attorneys may want to trim down their docket of cases, but need to make sure these are quality cases that will help keep the lights on and not arbitrarily setting a number for maximum cases. She also reviews some of the dangers of trimming a docket and how it can be a very dangerous economic decision. And she notes that each case should be thoughtfully selected to match the goals for the practice.
Sonia came from a practice with partners with duel loads. (IE: One partner that handles big cases and more complex cases, and the other might carry a larger volume case load to help pay the bills and keep the lights on.) This was a consensus among the partners about how the practice would operate. She points out that her practice has never been based on a very small docket and personally finds this to be a scary prospect. Michael, on the other hand, has operated in the full spectrum of caseloads. He recalls early on having 200 car wreck cases at one time with average case values being fairly low, some of which in hindsight were never economically viable. He even breaks down the impact some of those low value cases can have on a practice. And he also points out it is nearly impossible to be a high-volume lawyer while also trying to be a boutique, high-quality on one case, lawyer. The systems for handling each are very different as well as the tradeoffs which need to be made regarding one type of practice versus the other, both from a personal and professional perspective. Sonia adds there are many lawyers out there building a heavy case load practice and becoming very successful, which ties directly into Michael’s assertion that the type of practice you choose to run must also match your personal preferences, personality type, and aspirations. Michael also describes this as knowing where you are in the marketplace and his explanation on how you figure this out is phenomenal for both young and seasoned lawyers to take note of. He also gives some direct advice for our younger attorney listeners to understand the path to getting bigger cases when you work in someone else’s firm and don’t have the final say in certain matters such as case load.
The next question comes in a few parts. The first being, do firms making the transition into reducing their caseloads spend less on marketing and instead spend more time focusing on referrals? Michael explains why he made a conscious decision to stop marketing to the public when he decided to raise the threshold on the size of cases he wanted to take on. He goes on to reveal the reasons behind this decision which may or may not be what you think. Sonia also brings up a great point about the type of practice you run being largely based on your own risk tolerance and how it relates to the demands of different types of practices.
Secondly, when a firm makes the transition to a smaller caseload, do they end up reducing staff as well? Michael has definitely seen this model work both ways, but discloses why he personally has more staff now, working even fewer cases. He has found when your average fee goes up, you can increase the amount of man/woman-power you can put into the case and so you can pay better, which in turn helps you attract more and better team members to work on cases. Sonia also adds, from her own experience, the more time you have to focus on a case for an extended period of time the more ways she thinks of how to really make a big impact on a case. In other words, the luxury of being able to focus your time and energy on one case, actually creates much more work than she previously appreciated. Michael also explains how it is important to make sure you have the right people in your firm based on the practice model you want to run with since not everyone will be the right fit.
And third, the listeners concern is that like many firms, there are highs and lows and the only way to neutralize this is by taking on a higher number of cases. Michael debunks this right off the bat from his own experience, by explaining how the lower his case volume is, the steadier his revenue has become. Sonia also lays out a great way to analyze the true value of a case when looking at a high-volume practice where cases can sometimes be prolonged with continuance requests (Hint – cases that you carry for a shorter amount of time tend to use less office resources).
Another listener asks: Are you ever embarrassed to have a damages number that is too high? Michael starts right out in stating if you don’t believe this is the right number to get justice for your client, or you are embarrassed about the number, then you definitely shouldn’t present it to a jury. Sonia also asserts that such embarrassment felt by a lawyer is likely to be attributed to the lack of understanding of what their client’s pain or damages truly is. Furthermore, she goes on to say any lawyer using a formula to come up with a number, such as 3X damages, isn’t doing what they’ve been retained to do. You really have to believe what you are fighting for, which sometimes requires you to work through some of your own thoughts which may be holding you back. Michael also points out when you’re trying a case, you want to be 100% dedicated to doing everything you can to win a case, but you cannot be attached to the result.
The conversation concludes with Michael and Sonia reviewing, by listeners request, some of the books they’ve read and would recommend to help run a better practice. And Michael shares his obsessive behavior to really dig into his reading when he finds resources that really click with him. This not only includes his reading of books pertaining to being a great trial lawyer, but also books about becoming a successful business owner.
These Table Talk episodes could not happen without the interaction and questions submitted by our listeners. We are incredibly thankful for your feedback. We encourage you to continue to send us your thoughts, ideas, and questions as we love sharing our experiences.
“Please note the TLN19 discount code mentioned in this show has now expired.”
RESOURCES
The Five Dysfunctions of a Team: A Leadership Fable by Patrick Lencioni
The Advantage: Why Organizational Health Trumps Everything Else in Business by Patrick Lencioni
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63 – Sonia Rodriguez – “You Got Me”: Discrediting Defense Paid Opinion Witnesses
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In this episode of Trial Lawyer Nation, Michael sits down with his law partner Sonia Rodriguez for an overview of deconstructing defense-paid opinion witnesses. They highlight many of their favorite strategies to use when dealing with a witness who won’t answer your questions, their favorite unexpected “gifts” from witnesses, and the importance of why someone becomes a defense-paid opinion witness in the first place. This episode is full of shocking real-life examples you don’t want to miss.
Michael begins the episode by highlighting the defense strategy to hire someone to discredit their client. He asks Sonia, “What do you do to deal with this?” Sonia describes the first action she takes, which is reviewing what organizations they show they are affiliated with on their CV (curriculum vitae). Most professional organizations have ethical guidelines which these witnesses must abide by. She’s found success in displaying these guidelines to the witness during the deposition and using them to prevent the witness from stating biased information.
Michael then describes the common narrative these witnesses all portray which every plaintiff attorney listening is sure to relate to. Any injury from the crash goes away in 6-12 weeks, but any injury from 10 years ago is most certainly the cause of everything today, even if they haven’t been to a doctor for it in 9 years. Sonia has combatted this in medical witnesses by focusing heavily on the client’s description of pain. Most doctors will admit that the patient’s description of pain is a very important part of the diagnosis. She uses this information to put the witness in a position of saying, “the records aren’t adequate,” which does not play well with the jury.
The conversation then shifts to the difficult but highly effective strategy of turning the defense paid opinion witness into your witness. Sonia explains why this is so difficult to do successfully, but has maneuvered these difficulties by focusing her depos on what she knows she can get from them. She shares an example of this where she was able to build up the witness’s credibility, then use it to get some simple, clear concessions.
On the other hand, Michael says his primary goal in every defense paid opinion witness depo is to make them his witness. Instead of fighting with them in an area where he does not have credibility, he spends his time researching the witness, reading prior depositions, and trying to find what they will give you based off those prior experiences.
Michael elaborates further on the importance of reading past testimonies by sharing a shocking example with a biomechanical engineer who claimed his client could not possibly have a herniated disc from the crash. Before trial, Michael read several of his previous depositions and went through all of the literature the witness cited in the case. He then shares an example of how he used those prior depos to discredit the witness, how his voir dire helped him do this while also relating to the jury, and why reading the literature can help your case.
Sonia wholeheartedly agrees and gives her real world experience using the literature to your advantage. She shares an example where a neurosurgeon used a study about the prevalence of herniated discs to claim her client’s pain wasn’t caused by the crash. After reading the article, Sonia found that it only referred to a specific type of herniated disc, which was not the type her client had. After revealing this, all the witness could say was, “You got me.”
Another all too familiar roadblock is the witness who just won’t answer your questions. While Sonia and Michael both agree this will always be a barrier, they both share insightful techniques on how you can overcome this. Sonia does this by always recording the testimony, so she can show the jury the witness was refusing to cooperate or concede to basic things. Michael then offers another strategy he employs with uncooperative witnesses – using basic, fair questions in a true or false format. While you may still need to ask the same question 10 times to get a response, you can always cut out the first 9 asks. The key to this is to never appear mad or frustrated because it doesn’t present well to the jury. Sonia agrees with this strategy and points out how well-suited it is for a Zoom deposition.
On a lighter note, Michael and Sonia share their favorite unexpected “gifts” they’ve received from paid opinion witnesses. Sonia details her experience of utilizing past testimony to prove an orthopedic surgeon was simply touting lies for money and highlights the importance of sharing information with other members of the plaintiff’s bar. Michael’s favorite “gift” was an ex-sheriff providing testimony on a drunk driving case, who made an incredibly racist statement in his deposition. The judge insisted the case not be made about race, which Michael had no issuing agreeing to. But when Michael asked the sheriff the same question at trial (assuming the witness had been prepped not to make the same mistake), he made the SAME racist statement he made in the deposition.
While these unexpected “gifts” are a huge blessing, they’re hard to come by on most cases. Sonia and Michael conclude the conversation by exploring why people become paid opinion witnesses in the first place. He accurately states, “This isn’t why people want to become doctors or engineers.” Michael explains how many of them either just weren’t good at their jobs or experienced an injury that rendered them unable to perform surgery.
Sonia and Michael also cover using before and after witnesses, focusing on the symptoms instead of the diagnosis, whether or not to “go in for the kill” in a deposition, verifying the qualifications of a witness, and so much more.
