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In this Trial Lawyer Nation podcast, Michael talks with one of the nation’s top trial attorneys, Mikal Watts about his pursuit of the goals he established at a very young age which forced him to make some tough decisions early on in his career. Fear, exhilaration, and even his wife thinking he was crazy couldn’t keep Mikal from doing what had to be done before it was too late in his career.
Mikal describes the choices that were made when he initially started his own practice and their unlikely, yet practical, reasoning. Mikal also recalls his first big solo case and how literally moving some furniture around helped him put his best foot forward and became a pivotal moment for his practice. Mikal offers advice on the do’s and doesn’t for those looking to start their own firm, in addition to some of the sacrifices and deferred gratification that comes with the territory.
While there have been many to date, Mikal shares with Michael some of the verdicts that he has been most proud of thus far, such as his first case against Chrysler, and how those cases have added to the value of his practice beyond just the dollars and cents. Mikal delivers practical keys to success for the courtroom and how to truly connect with the jurors in the room, which by the way, have become keenly proficient in detecting BS (both factual and unscrupulous).
At the same time, both Michael and Mikal recognize and discuss the absolute need to break subjects down into their simplest terms (Mikal’s metaphor for tire tread is simply priceless). Humility and modesty shine through as Mikal describes his firm’s ethos and attitude for sharing with other lawyers, not unlike Michael and his firm, and the inherent benefits that come with such an inclusive environment, for both the firm and more importantly the clients they serve.
This podcast concludes with an important discussion of the biggest threats to the legal industry to which Mikal’s thoughts may surprise even the most seasoned attorney.
Background on Mikal Watts:
Mikal Carter Watts is the founding Partner of Watts Guerra LLP. He was born in Corpus Christi, TX in 1967. Mikal attended The University of Texas in Austin where he completed his undergraduate degree in two years. He then went on to the UT School of Law, where he also graduated in two years at the age of twenty-one. Following college, Mikal accepted a position working for The Honorable Thomas R. Phillips, Chief Justice of the Supreme Court of Texas, as a briefing attorney from 1989-1990. In 1997 Mikal opened his own law firm in his hometown and in 2006 he relocated to San Antonio.
Mikal was married in 1993 to his lovely wife Tammy. Together they have three children, Taylor, Hailey and Brandon as well as two grandsons, Caleb and Austin. His interests include spending time with his family, attending church, Spurs basketball games, and Longhorn football games.
For more information on Mikal Watts visit http://www.wattsguerra.com/lawyers/mikal-c-watts
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37 -Sonia Rodriguez – Caseloads: Quality vs. Quantity
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In this Trial Lawyer Nation podcast, 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 podcasts 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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50 – Sari de la Motte – Voir Dire & Opening: Forming The Best Jury Possible
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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/
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45 – Peter Kestner – Money and Strategy with “The Janitor”
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In this Trial Lawyer Nation podcast, Michael Cowen sits down with acclaimed author, speaker, and trucking lawyer, Peter Kestner, for a conversation on going up against insurance companies. Peter’s experience is somewhat unique having started out in the insurance industry working for the second largest trucking insurer in the country, handling truck litigation claims.
Then, after going back to law school, he ran an excess program for a sister insurer under the Travelers Umbrella with 30 of the largest trucking concerns with self-insured retentions (SIR’s) where he would audit their claims files to make sure they had proper reserves. In some cases when it was a high exposure case, Peter would have to interject himself into the case to settle it or make the decision to take it to trial. He was even nicknamed “The Janitor” because he would “clean the messes up.” Not long after, he made a change to become a plaintiff’s lawyer when he decided he wanted to help people instead of defending corporations. Michael points out that Peter’s background and experience from the other side is extremely valuable since he’s been on the other side valuing and negotiating the cases and helping make the decisions.
One of the first insights Peter shines a light on is how much the insurance industry has changed over the years in that they now operate more like the banking industry where it is focused more on getting the premium dollars in to the company versus being in the business of risk management. Peter explains, those are dollars the insurance company works the hardest to bring in, as evidence by all the marketing campaigns aimed at bringing in new customers. They then can use those dollars to invest where, unlike the banking industry, there is little regulation as to what they can put in their portfolios as they are regulated at the state level. He clarifies why this is important looking back to 1991 and the advent to Colossus and Allstate, when the McKenzie company did an audit and determined that Allstate was paying too much in claims and suggested they reduce the amount of third party liability settlements in order to increase profits. The assertion of this being that if an insurer can find ways to bring the number of claim settlements down and pay less in overall claims, it would be an acceptable risk when the practice results in a rare bad faith case against the company, keeping more money overall available to invest. It’s obvious that this strategy has worked, as Peter points out that the insurers have grown substantially to where they are now Fortune 100 companies with billions in assets.
The conversation throughout the bulk of this episode focuses mainly on a deep dive insight on a few cases Peter has encountered and how insurance factored into them. One case referred to several times in this episode is a fascinating case which involved a 63-year-old retired Seal Team 6 member who was hit by an 18-wheeler on a dusty road in Nevada. The details surrounding this case are particularly interesting when you consider the two trucks involved were from the same company and Peter’s client was found to have been 8 feet over the center line and they were still able to settle the case, after 3 days of trial, for a sizable amount. Other details, which you need to hear to believe, involved conflicting positions on who caused the accident from within the company (the driver of the truck and the official position of the company) where a Facebook post helped solidify his client was not at fault.
Peter and Michael give some amazing advice to those taking on trucking cases and how to handle insurance companies including: strategies on how (and why) to separate yourself from the insurance negotiations and trial discussions; defense counsel bluffs – how to spot and call them without getting taken advantage of; how to leverage focus groups to put together the best case for your client, even if it means not entering all the client’s injuries; how 5 seconds of hard data can (and did) defeat a defense theory; and so much more. This episode concludes with a discussion around the top things Peter has seen plaintiff’s lawyers do which ends up leaving money on the table. His insider knowledge is extremely helpful when considering case strategy and the whole episode is worth listening to several times over.
BACKGROUND
Peter Kestner has extensive experience with truck accident cases, both as a private attorney and representative for trucking insurers. He is a co-founder of the law firm McEwen & Kestner. Prior to founding his law firm, Peter served for 10 years as a claims adjuster and litigation manager with one of the largest tractor trailer insurers in the U.S. Peter earned his B.S. from Skidmore College in 1989, and his J.D. from William Mitchell College of Law in 2001. Peter now uses his defense experience to represent individuals injured by the negligent acts of trucking companies. Peter has also served as personal counsel to policy holders in disputes with their insurers as well as serving as an expert witness in insurance litigation matters. He is the past-chair of AAJ’s Interstate Trucking Litigation Group, Chair of AAJ’s Bus Litigation Group, sits on the Board of Regents for the Academy of Truck Accident Attorneys, he is on the board of directors of Minnesota Association for Justice and he also holds a CPCU professional designation in insurance. He has litigated truck accident cases in 19 different states in both State and federal Court. He is also Board Certified in Truck Accident Litigation by the National Board of Trial Advocates (NBTA)
- Past Chair AAJ Trucking Litigation Group
- Chair AAJ Bus Litigation Group 2017-present
- Co-Chair, Amicus Curiae Committee, AAJ Trucking Litigation Group 2011-present.
- Minnesota Association for Justice Board of Directors 2012-present.
- Academy of Truck Accident Attorneys- Board of Regents
LEGAL BACKGROUND
- Admitted to Bar, 2001, Minnesota and US District Court of Minnesota
- Appeared Pro-Hac Vice in Trucking Cases in the following jurisdictions: District of Colorado, Western District of Kentucky, Wyoming State Court, New York State Court, Iowa State Court, Illinois State Court, Wisconsin State Court, Kentucky State Court, South Carolina State Courts, District of North Carolina, Nevada State Court and North Dakota State Court, District of Utah, Texas State Courts, North Dakota State Courts, South Dakota State Courts, District of Mississippi.
- Education: Skidmore College (B.S. 1989); William Mitchel College of Law (J.D. 2001)
PUBLICATIONS AND LECTURES
- Speaker: AAJ Summer Convention, Understanding the Transport Cycle, Summer 2019
- Speaker: AAJ Jazz Fest, Negotiation Matters, Winter 2019
- Speaker: New Jersey Association for Justice, The Defense Perspective, Spring 2019
- Speaker: Stratford Webinar- Finding the Hidden Motor Carrier, Fall 2018
- Speaker: Kentucky Association for Justice- The Broker Defense, Summer 2018
- Speaker: AAJ Members Only Truck Group- Trial of a Punitive Damage Truck Case
- Speaker: New Jersey Association for Justice: Maximizing the Recovery in Truck Cases, Spring 2018
- Speaker: 2018 Winter Convention AAJ, Negotiations Matter
- Speaker: National Board of Trial Advocacy, Summer 2018) (Understanding Broker Cases
- Speaker: Academy of Truck Accident Attorneys, Summer 2018- (Understanding the Transportation Cycle
- Course Chair and Lecturer- AAJ Trucking College, Spring 2018
- Course Chair/Moderator: AAJ Annual Convention, Summer 2017, Trucking Litigation Group.
- Speaker: Ohio Association for Justice, Spring 2017- Trucking Insurance
- Speaker: Florida Justice Association Winter 2016: Hell on the Highways, Maximizing the Recovery in Trucking Cases
- Speaker: ATAA Fall 2016 “Truck Insurance 101”
- Speaker/Course Chair: 2016 AAJ Trucking College
- Speaker: “Rules in Trucking Cases” (AAJ Summer Convention 2016)
- Speaker: “Mediating the Trucking Case” (Minnesota Association for Justice May 2016
- Speaker: “Maximizing Settlement in Auto Cases” (360 Advocacy Seminar Spring 2016).
- Speaker: “Understanding the Transportation Cycle” (New Jersey Association for Justice-Boardwalk Seminar 2016)
- Speaker: “Mediating Trucking Cases” (Minnesota Association for Justice- Spring 2016).
- Co-author: “Potential Source of Recovery in Commercial Trucking Case” The Advocate, Vol. 41 #5 (Kentucky Justice Association Sept./Oct 2013)
- Author- “SIR vs Deductible” (AAJ Insurance Section Newsletter Fall 2015)
- Speaker: “Discovery In Trucking Cases” Webinar (Fall 2015)
- Speaker: “Insurance 101” (New Jersey Association for Justice Spring 2015)
- Speaker: “Insurance 101” (North Carolina Association for Justice, Spring 2015)
- Author- “Broker Liability for Negligent Selection of an Independent Contractor”, Minnesota Trial, Volume 37, No. 4 (Minnesota Association for Justice Fall 2012).
- Author- “Broker Liability for Negligent Selection of an Independent Contractor”, Interstate Trucking Litigation Group Newsletter (Fall 2012)
- Author- “The MCS-90 Endorsement: No Coverage? No Problem, Minnesota Trial (Minnesota Association for Justice Summer 2008)
- Author- “Trucking Insurance Chapter” Truck Accident Litigation, 3rd Edition, (American Bar Association 2012)
- Speaker- “Debunking the Broker Defense” Interstate Trucking Litigation Group Broker Shipper Liability Seminar, October 2013
- Speaker- “Debunking the Broker Defense” Interstate Trucking Litigation Group Broker Shipper Liability Seminar, June 2013
- Speaker- “Finding all Defendants in Wrongful Death Trucking Cases” Minnesota Association for Justice Wrongful Death Seminar, May 2013
- Speaker- “Technology in Trucking Cases” New Jersey Boardwalk Seminar, April 2013
- Speaker- “ Insurance Company Rules” 360 Advocacy Group, Trucking Litigation Seminar, May 2012
- Speaker- “ Insurance Company Rules” Kentucky Justice Association, Trucking Litigation Seminar, June 2012
- Speaker- “ Insurance Company Rules” Tennessee Justice Association, Trucking Litigation Seminar, March 2012
- Speaker- “Maximizing Your Recovery: Finding Insurance Coverage, Minnesota Association for Justice Successfully Litigating the Commercial Truck Case, November 2010
- Speaker- “Insurance Company Rules: Strategies for Maximizing Recovery- IPITLA Seminar, September 2009
- Speaker- “Defense of Trucking Cases, Why Commercial Motor Vehicle Cases are Different, May 2007
Just listened to Michael’s interview with Mikal Watts. What a great interview! Thank you both for sharing your knowledge and for your willingness to mentor others. I need to find a friend with a shiny head in case I pick up a tire case! Haha. Thank you for your candor as well in the lessons you learned as you grew your practice.