In this Trial Lawyer Nation podcast, Michael Cowen talks with his law partner Malorie Peacock about their recent jury verdict. (In Episode 51 they discussed trial prep and included how they were preparing for an upcoming trial.) This time they will be discussing their $3,420,000 jury verdict, what worked well, how they overcame the challenges of this case, and the power “of a trial to heal.”
Malorie starts by sharing the background on the case. This was a construction site incident where their client was working when a trench collapsed and killed him. OSHA (Occupational Safety and Health Administration) found the company did not provide the required trench protection. (For our listeners outside of Texas, Michael explains that in Texas there is optional workers comp, so the company did not have workers comp at the time and he was able to directly sue the employer.)
At face value, this may seem “like an easy win.” However, there were challenges in the case. The first was the lack of eyewitnesses, which was an obstacle for liability, so the case required the use of witness statements. OSHA keeps their witness statements anonymous, so the ambiguity made it more difficult than using a live person. Because of this Michael and Malorie knew there would be doubt in the minds of the jurors, so Michael had to use Keith Mitnik’s philosophy “doubt is not an out” in order to address the issue of anonymous statements that didn’t answer all of the questions in this incident.
Another challenge on the case, which related to damages, was the client being undocumented and working under a different name. This was “the elephant in the room,” which Michael and Malorie discuss in detail explaining why they chose to share this information in trial (even if most lawyers fight to have this excluded). Michael also points out his absolute shock with the defense alleging this was a sham marriage just for papers and provides insight on how a lack of photos and the appearance of the widow was used to argue this.
After sharing the challenges of the case, the topic shifts to jury selection and how a large portion of their jury panel knew about OSHA. Michael also shares his disappointment to his question “who would like to be on the jury,” but Malorie felt differently and was very impressed with the response. In this trial Michael used Sari de la Motte’s inclusive voir dire, shares how it was received by the jury panel, and the result of it making the defense “be reactive instead of proactive.”
Using visuals to educate the jurors was also important, but this doesn’t happen overnight. They discuss how they planned the visuals, why you need to show them to your experts, and talk about how they can be used in an expert testimony. When you use PowerPoint in trial it forces you to stick to a visual plan, but with poster boards you can decide IF you want to use it AND when. Malorie loved when a juror would ask one of them to “move a little bit over” so they could read a poster board. And Michael loved that the jury felt comfortable enough to ask them to move out of the way. This showed them the jury wanted to understand the information and knew why it was important to see it.
The podcast ends with an emotionally raw and incredibly honest conversation about the power “of a trial to heal.” Malorie shares the moment when the jury put money in the blanks the client “started sobbing uncontrollably” and how powerful it was for both her and their client. Trial is “the last stage of closure” in a death case. It is extremely significant and impactful for your client.
This podcast also covers the interesting questions the jury asked and how those questions were answered, feedback from the two alternate jurors, what you can learn from the defense voir dire, dealing with spacing issues in the courtroom, the surprising link between OSHA and high school theatre sets, the process of building trust with your client, the differences between an injury case and a death case, as well as other trial details you will want to hear.
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In this Trial Lawyer Nation podcast, Michael Cowen sits down with a special guest, Dr. David Ball. David is a trial consultant, speaker, and one of the “fathers” of the book “The Reptile in the MIST.” His name and his books have been mentioned on numerous episodes not only Michael Cowen, but many of our Trial Lawyer Nation guests. With several books of David’s to choose from, Michael can’t help but note how “David Ball on Damages 3” has been very useful in helping him craft opening statements and serving as an outline for many trials. He also highly recommends all trial lawyers have this book within arms-reach of their desk (more on this later in the episode). And for those trial lawyers who don’t know David personally, it is important to also note he has probably done more good for trial lawyers than anyone else in the industry.
Having started down his path many years ago, David’s mission of trying to help trial attorneys make complicated things clear, originally came from his background in theatre, where much of what he had learned in theatre has been extremely useful for trial lawyers. In fact, working with a more classical repertoire theatre with works from Shakespeare, he wondered how he could make those plays crystal clear for the audience who is listening to it and how it might relate to the legal industry. His conclusion? “I realized lawyers have 2 problems: 1. They’re boring as hell and 2. They’re not very clear about what they’re talking about.” Today David describes what he does as helping to strategize cases to maximize the principles of what we’ve learned in the neurosciences and apply it to how people really make conclusions, how decisions are made, how we know things, and how logic has very little to do with any of it. Essentially, working as a bridge between the neurosciences and the courtroom.
So, how do we get jurors to see things the way we want them to? Logic doesn’t deal with the law school version of tell them your case, they’ll understand your case, and if you’re in the right, they’ll give your client a just verdict. Justice has nothing to do with how people make decisions. How do we translate that into things you’re allowed to do in trial and in a way that will motivate jurors to do what we want them to do? David says, people don’t make their decisions on the basis of “justice,” but rather justice is simply the result of something you think you want. He goes on to explain why trial lawyers need to look at what they’ve got and then put this “stew” together into something someone REALLY wants, for it to end the way we want it to. The whole process of trial, as David describes it, is an alignment.
David continues to describe this alignment by combining solid research along with all the things he’s learned in theatre about what real storytelling is. The fundamental thing about The Reptile, he describes, is by getting the jurors to want themselves to be safe and live in a safe world, that becomes their want. He also points out that in order to get their want, he also needs to get his client’s “want,” which is money. Michael adds to this by stating the only power the jury has in the courtroom is to give or deny money in the case. David goes on to say that if the attorney is presenting their case well, jurors will understand if they give a good verdict it will make their world safer, but also giving a bad verdict will make their world a more dangerous place than it is now. In other words, once the jurors walk into the courtroom, they will be walking out with either a safer world or a more dangerous world, but it will never be the same way as when they walked in. Furthermore, David explains when you ask a client why they are doing the case, not only will they say it’s because they need the money (compensation) but they also want to make sure this won’t happen to anyone else. To expand on his point, David shares an example from his early years watching the trial of a case involving a wealthy woman in North Carolina, who was rear-ended and clearly didn’t need the compensation from the case. The answer the woman gave him when he asked her why she was going through with the case, even though it was painful, is priceless. And it helps us understand why even the smallest cases are important in making the world a safer place. David also talks about the points he describes to the jurors regarding their potential complicities in what they allow the defense to get away with and the affects it will have on others who face the same situations in the future.
Which leads Michael to pose the question, “how do we figure out what the jurors want?” David goes through a laundry list of things we know about what jurors want, including through focus groups and the neurosciences what motivates us to want something. Boiled down to its core, David explains this with a great example of teenage boys as jurors, which will shock you and make complete sense. And he wraps up with describing the fundamental drives that keep us alive, as well as the impact of disrespect and humiliation.
The topic shifts at one point to talk about when the other side brings in what they call an “independent medical examiner,” three lies in one person’s title, David jokes (sort of). Rather than disagreeing with their conclusion, David proposes you show what they did wrong in their methodology, to show they purposely arrived at the wrong conclusion. He goes on to show how the right types of questions posed to your own experts can further point out the flaws in their conclusions without the need to call the defense’s independent expert a liar. Michael also adds how it can be very effective to discuss the idea of a defense’s witness as “independent,” when they’ve been picked and paid for by the defense, in helping the jury not feel like their intelligence is being disrespected. David continues to talk about the difference between describing the defense as someone who may lie in order to protect themselves vs. someone who is disrespecting the jury by insulting their intelligence and the impact this can have on a jury. He goes on to point out how it is analogous to the difference between a doctor lying to a patient, where the patient might be being disrespected but the juror is not vs. a doctor getting on the witness stand and deliberately misleads the jury, and as such, disrespecting them.
One of the things David describes as loving about what he’s been able to do, is when he started writing his first theatre for trial book, there was nothing. Nobody was doing anything in the way of teaching major overall strategy and there were certainly no books on damages or doing it. He’d like to think that the Damages book helped give rise to this whole other industry. In one hand he should hate it, he created all his own competitors, and on the other hand it is the greatest feeling in the world for him.
David also suggests for every attorney to page through their Damages 3 book on a consistent basis to examine it through the lens of the case you’re working on currently, in order to see things you never saw before. He suggests this, mainly because so much information is lost after seminars and reading other books, because the only things you likely retain are the things which pertain to the case you’re working on right now.
Michael and David move on to the topic of the principles of persuasion and how David has brought his theatre experience into the courtroom. Revisiting the idea of “real storytelling,” David talks through the actual history of storytelling and how it has evolved over time. He points out why you have to make people want to hear the next part of the story, AKA “narrative thrust,” using “dramatic tension” to create tension between this moment and the next moment, and the next moment could be an hour away or two minutes away. Crafting what David describes as “forwards” where everyone sees the anticipated moment in the story and wants to hear it for themselves. He also points out these forwards are very case specific, very particular to the story, and it is a relatively sophisticated thing to do for people who are not natural born storytellers, but you can learn to do it. And he describes why the context in storytelling and where you put pieces of information in the story matter significantly to shaping the story.
Michael and David touch briefly on social media and a trial lawyer’s first amendment right, where it is important to note David believes if you are a trial lawyer, you have accepted a fiduciary responsibility to your client which trumps your ability to have free speech. He also believes society has become so divisive these days on social media and now face to face, where we now have the challenge of bringing both sides together to fight for an even greater cause. David uses the example of 2 people fighting, but when someone comes in and tries to do harm to them, they will both unite because they are both in danger and need each other to save themselves. The heart of such a scenario, is the aim of every trial lawyer when working with diverse juries.
Digging deeper into David’s theatre background, Michael talks about how he has yet to see a trial lawyer facing a potentially multi-million-dollar trial rehearse as much as a community theatre where 30 people may be in the audience. David shares how being a trial lawyer is the only area of public performance where they don’t rehearse. He goes on to suggest you cannot fully rehearse on your own and, a full rehearsal, means a dress rehearsal. In the same way you cannot have football practice without eventually having a scrimmage with another side. When you are on the stage, you have a million other things on your mind, you’re being “Hamlet.” When you’re a lawyer, you’ve got your peers, the judge, and the jury all watching you. It distracts your attention from where it needs to be, so you seem very nervous. You cannot be a leader of human beings when you’re very nervous. And the best lawyers are leaders of human beings.
The podcast ends with a discussion on charisma in the courtroom as well as David’s important work in the criminal defense industry. And after spending this episode with David, it’s clear to see why so many trial lawyers look to him as a powerhouse in the industry.
“Please note the TLN19 discount code mentioned in this show has now expired.”
David Ball, who wrote trial advocacy’s best-selling strategy book – David Ball on Damages — is a litigation researcher and strategist with North Carolina’s Malekpour & Ball Consulting (JuryWatch, Inc.). He is the nation’s most influential jury consultant, communications expert, and advocacy teacher. His training is in science, engineering, and small-group communications, and he is a 30-year veteran of the professional theater.
Dr. Ball and his partner, lawyer/consultant Artemis Malekpour (firstname.lastname@example.org), consult on civil and criminal cases across the country. They are routinely credited with turning the most difficult cases into significant victories. They are the nation’s only trial consultants qualified to safely and comprehensively guide attorneys with Reptilian, David Ball on Damages, and David Ball on Criminal Defense methods and strategy. Their hundreds of brainstorming sessions – “WorkDays” – have become the gold standard for case-strategy development.
In addition to David Ball on Damages, Dr. Ball’s other landmark advocacy books include Theater Tips & Strategies for Jury Trials, Reptile (with Don Keenan), Theater for Trial (with Joshua Karton), Reptile in the MIST, and David Ball on Criminal Defense.
Dr. Ball has taught law students at North Carolina, Wake Forest, Pittsburgh, Minnesota, Roger
Williams, Loyola, and Campbell schools of law, and at Duke Law as Senior Lecturer. He’s an award-winning teacher for the North Carolina Advocates for Justice and the American Association for Justice’s National College of Advocacy. He has long been among the nation’s most in-demand of CLE speakers. His favorite job was taxi driver in the 1970s in Stamford, CT, and his Daddy was a Catskill Mountains bootlegger during Prohibition.
Dr. Ball is also a pioneer in adapting film and theater methods into trial techniques. His theater/film students have won Oscars, Obies, Tonies, and Emmies; his scripts have been staged at professional theaters off-Broadway, throughout North America, and overseas. He helped to lead the Guthrie Theater, as well as Carnegie-Mellon University’s renowned theater conservatory and, as Chair, Duke University’s Drama Department. His best-selling film and theater training book, Backwards and Forwards, has been the field’s standard every year since 1984, and is now in uses by trail lawyers as well. His crossover books, Theater Tips and Strategies for Jury Trials along with the new Theater for Trial, are the standards for the use of film and theater techniques in litigation.
Dr. Ball also wrote the cult classic film Hard Rock Zombies, though he made up for it by writing Swamp Outlaw, a novel about Civil War Era Lumbee hero Henry Berry Lowery, now under option for a motion picture. (TV viewers: Dr. Ball and Dr. Bull deny each other’s existence.)
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With overwhelmingly positive feedback from our listeners, TLN Table Talk podcast 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 email@example.com; and be sure to like, share, and subscribe to get the latest from the Trial Lawyer Nation podcast!
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Find out more about Sonia Rodriguez here.Post Views: 4,774
In this Trial Lawyer Nation podcast, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Malorie Peacock, for another TLN Table Talk to answer the questions of our listeners. This episode focuses on resources for trial lawyers, doctor referrals, and the process behind highlighting what’s most important to your case.
The first question brought to the table is about what the best resources for newer lawyers starting out in the personal injury trial lawyer world. Michael notes his favorite books today would likely not be his favorites for someone just starting out. Having said that, he recommends starting with books like the AAJ Deposition book by Phillip Miller and Paul Scoptur, pointing to the reality in which 90% of cases are likely going to settle and this book focuses on taking good depositions, increasing the likelihood of a higher value settlement for your clients. He also recommends David Ball’s book, Damages 3, which breaks down how to argue a case in a logical and coherent format, avoiding holes in your story, as well as Rules of the Road by Rick Friedman and Patrick Malone, that focuses on simplifying cases. As a follow up to reading all these great books which are meant to help simplify cases, Malorie poses the question of why it is important for lawyers just out of law school (where everything is so complex) to make the transition to presenting to a jury where you have to make things simple, and why it is so difficult. Michael explores this idea and feels that it takes a lot more work to make things simple, and the complexity is what we hide behind to mask our own insecurities. They both agree that complexity and confusion are great defense tools and by presenting a bunch of confusing ideas to a jury could end up playing right into the defense’s hands. To top off the discussion about resources, Michael adds several other courses, trial colleges, information exchange groups, and other programs that are offered and can help lay the foundation for up and coming trial attorneys and also suggests choosing an area to really focus on, since no one can really know everything about everything.
Beyond books and seminars, Malorie brings up the idea of going to trials and second chairing trials as another great way to gain real life learning experiences. Michael also describes his approach to pairing up attorneys with each other based on where they are in their career to gain practical experience in the courtroom. It’s also noted, in cases where your might be trying them on your own, it can still be beneficial to bring in other attorneys who have done what you are about to do, to strategize and help you prepare. Malorie talks about a specific instance of this coming up for her, where she plans to help a friend through voir dire in their upcoming case. Michael also reminisces about several times back in his early days, enticing friends to come over and practice voir dire and openings with pizza and beer in exchange for their feedback. Although, these weren’t professionals or experts, this practice did help him get more comfortable with talking to people while getting useful feedback.
Another question from our listeners is about lawyers referring people to doctors and the perceived issue that the people getting referred are not actually injured but are being sent to a doctor who will work up some medical documentation to make them look like they’ve sustained an injury in order to make more money for the lawyer. Michael describes his personal experience with this issue in that, he faces it head on and is upfront about it, thereby avoiding any awkwardness or perceived deviance on his part. For him, it basically boils down to having a client in pain, who asks for advice on what doctor to go see. They’re not sure what doctor to go see. They don’t know any specialists in this area. What should I do? Most people would say, tell them to go see a doctor and give them a name. In other words, if you own it, you’re not ashamed of it, and you haven’t done anything wrong and just talk about it, it doesn’t seem to be a problem. He also points out that he’s never lost a case on this issue. Malorie also notes, whatever you make a big deal about to a jury, is likely going to be what they think needs to be a big deal, and by confronting it in a matter of fact type way, people take your cues that it is not something to harp on but rather, just being human to one another.
The next question from our listeners is why is it so important for lawyers to make the case about the company and not the low-level employee, and how do you do that? Malorie digs right in, talking through how there are really two main reasons why the company is the bigger villain in a case: 1. The company is where the deep pocket is, and 2. Oftentimes, the individual that did something wrong is likeable. It becomes much “easier for people to dislike a company than it is to dislike an individual who made a mistake,” Malorie explains. Furthermore, “when a company puts an individual in a position where it’s inevitable that they’re going to make those mistakes, and it’s inevitable that they’re going to hurt someone, then it really is the company’s fault.” Michael expands on this idea with an example of a defendant driver, who is usually making a mistake over a period of seconds. Whereas companies that don’t have good safety programs and often make choices, not mistakes, over a period of months or years. So, “it’s just harder to forgive them, whereas it’s easy to forgive someone for making a mistake, for taking your eye off the road for a second, for being distracted for a minute, for driving a little too fast. It’s harder to forgive someone for knowing that you need to have a company safety program and you just don’t do it.” Malorie continues to explore the many types of negligence that can be aimed at companies in how they treat their employees (IE: negligent training, negligent supervision, negligent monitoring, negligent entrustment, etc.). They continue to explore the “how” to make the case about the company, which brings up some truly fascinating ideas and tactics.
Michael and Malorie continue to explore several other topics throughout this episode like testing theories and hypotheses, root cause analysis, reassessing your case throughout the process, and the curse of knowledge. They also explore the processes of walking people through your case one step at a time so that on their own, it inevitably leads to the conclusion of who the good guy is, who the bad guy is, what’s right, and what’s wrong. It takes a lot of work to get there, but Michael and Malorie agree, it’s so worth it.
These Table Talk podcasts also could not happen without the interaction and questions that are submitted by our listeners, for which 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 them.Post Views: 2,682