Alabama

81 – Mallory Storey Ulmer – Baptism by Fire: When Tenacity Defeats Tenure

In this episode of the Trial Lawyer Nation podcast, Michael sits down with attorney Mallory Storey Ulmer from the Walton Law Firm in Auburn, Alabama. Mallory is a young lawyer who recently achieved a $15 million settlement for her clients in a not-so-plaintiff-friendly state. She and Michael discuss her path to such early success, the details of how she worked up the case, and her advice for other young lawyers who want to make a big impact on a big case.

They begin the episode with a bit on Mallory’s background. After working as a paralegal for 8 years, she decided to go to law school with the intention of becoming an insurance defense lawyer. While in law school, she received a prestigious internship at a plaintiff firm and fell in love with plaintiff work, stating “once you’re on the right side, you can’t switch over.” She and Michael then discuss the emotional toll of plaintiff work, especially in a state like Alabama that’s “no plaintiff’s paradise,” but agree the satisfaction of representing people who need it most can’t be beat (as long as you have the right mindset).

This leads Michael to ask Mallory what she’s done to develop her skillset. She says that one of the best decisions she made was joining an excellent firm with a great reputation. Walton Law Firm has robust systems, great lawyers, and makes education a top priority. She’s been able to learn from some of the best minds in the legal industry both in her office and through a wide variety of legal seminars.

While these opportunities helped build her knowledge base, she and Michael agree at some point you just have to jump in and start trying some cases (or as Mallory calls it, “baptism by fire.”) Michael also notes the importance of networking with other lawyers, to which Mallory agrees. Because of her networking and impressive resume of cases, she is now being invited to speak more often at legal conventions.

Next, the pair jumps into the nitty gritty of the $15,000,000 case Mallory recently settled. While she can’t share too many details due to a confidentiality agreement, she agrees to share what she can within those boundaries. This case had an incredibly complex liability sequence, which stemmed from a series of car wrecks and resulted in catastrophic injuries to her client. In fact, her client’s crash occurred when the defendant driver was not driving a commercial vehicle, further complicating the regulatory guidelines for the company.

Another difficult aspect of this case concerns the venue: Alabama, which is no “plaintiff’s paradise” and has contributory negligence, similar to North Carolina as discussed in our episode with Karonnie Truzy. In short, this means if the client is ANY part at fault for the wreck (even 1%), they cannot receive any compensation. This causes worry in any case, but in a case of this size, Mallory knew she needed a plan to combat this defense if the case went to trial.

She then describes a genius argument of wanton (willful) conduct which would have taken away the contributory negligence defense. While she was never able to use the argument because the case settled, this is an incredibly impressive strategy she plans to “keep in her pocket” for future use.

After discussing the importance of discovery and depositions in the case, Mallory shares why she decided to frame the case as a “systems failure.” This boils down to the fact that juries don’t like to award a large verdict against one driver; they’d much rather award a large verdict to a company where the driver was a victim as well.

Michael and Malorie then have a brief conversation about why it’s necessary to work with others (even if you don’t agree). This starts with politics and ends with an astute observation from Mallory about how this also applies to defense lawyers.

Moving back to Mallory’s case, Michael asks how Mallory found rules and systems to apply to her case when the defendant was not driving a commercial vehicle at the time of the crash. She decided to fall back on the company’s materials, training, and supervision. Regardless of the type of vehicle the defendant was driving, those standards should still apply.

Michael chimes in that his firm’s strategy for a case like this is “compared to what?” He will look at what other similar companies do and argue that while something may not be a regulation, it is certainly the industry standard. Mallory agrees with this strategy and adds that those publications are perfect for getting excellent sound bites in depositions and appealing to an educated jury pool who may sympathize with business owners but understand companies should care about and know these things.

The episode concludes with Mallory’s tips for other lawyers who get a big case like hers. Her first piece of advice is to posture aggressively from the beginning, meaning to act like you’re taking the case to trial. This is especially true in a case with large damages because there’s too much at stake. She insists that this is scary for defense lawyers who don’t want to try the case. Her second piece of advice is to “prepare, prepare, prepare.” She’s found this shuts out any fear that may creep in. It takes a LOT of time and energy, but it has always worked to her advantage as the defense is never as prepared as she is.

Mallory’s last piece of advice is to know what you don’t know, and don’t be afraid to pull somebody else in if you need help. She urges other young lawyers to not be afraid of “looking stupid,” and be willing to spend the money you need to on experts and co-counsel. “You will most likely earn that back three-fold, and you’ll be glad you did it.” In the end, pulling in people who are experienced to guide you will result in a better fee for you and a better result for your client. Then next time, you can use what you learned, and you may not need to get as many people involved.

If you’d like to get in touch with Mallory to discuss a case, ask her to speak, or to learn more about this case, you can reach her by email at mallory@waltonlaw.net, or by phone at 334-321-3000. She’s happy to talk strategy or help in any way.

This podcast episode also covers the importance of discovery and depositions in Mallory’s case, proposed Texas House Bill 19, why you should try to work with defense attorneys (and what to do when they’re unbearable), Mallory’s approach to jury research, and so much more.

 

Guest Bio:

Mallory Storey Ulmer is an attorney at Walton Law Firm, P.C., in Auburn, Alabama. Prior to joining Walton Law Firm, P.C., Mallory gained experience in whistleblower, fraud, and employment litigation while working at Beasley Allen Law Firm, with some of those cases gaining national attention on merit. Mallory’s current practice is focused on representing victims in personal injury litigation, including the areas of wrongful death, motor vehicle and trucking litigation. She has experience handling cases in the Southeast and Midwest at state and federal court levels. Mallory recently obtained a $15 million settlement in a contested liability case arising from a crash that caused catastrophic injuries to our client.

Mallory is an advocate of the Alabama Head Injury Foundation, which provides resources for members of our communities affected by traumatic brain injuries, and she is passionate about representing people who have been seriously injured and families of those killed as a result of the negligence of others.

Mallory and her husband, Dr. Matthew J. Ulmer, and their daughter, Amory, reside in Auburn. They enjoy traveling, visiting with family, finding good local eateries, and being outdoors.

 

77 – Gregory Cusimano – Understanding & Utilizing The Jury Bias Model

In this episode of the Trial Lawyer Nation podcast, Michael sits down with trial lawyer and consultant Gregory Cusimano. As one of the authors of “Winning Case Preparation: Understanding Jury Bias, Gregory has conducted a plethora of research on why plaintiff’s lawyers win and lose cases. He and Michael discuss his 10 part jury bias model in detail and how you can apply it to your own cases. 

They start off the episode with Michael asking Gregory how he first got involved with this research. He explains how it began as an AAJ committee which he co-chaired with attorney David Winters. The committee was instated because there had been a trend of good lawyers losing good cases, and they wanted to understand why it was happening. After conducting around 1,000 focus groups on every case type imaginable, they developed the foundations of the jury bias model. 

Gregory goes on to share how it didn’t take long to identify the five common anti-plaintiff biases, which they called “untried issues.” These are issues which are important to a jury, but not to the plaintiff’s lawyer, so most lawyers would try the case without ever addressing them. The initial 5 untried issues included personal responsibility, suspicion, victimization, “stuff” happens, and “blame the plaintiff.” While some of these may seem obvious, Gregory explains why understanding these issues is critical for your case 

Michael then asks Gregory what plaintiff’s lawyers can do about these issues, which he admits was the much harder answer to find. In time, he was able to come up with the “10 Commandments,” or 10 decision-making events or aspects that tend to work. He emphasizes that these are in no way a fool-proof formula to win every case, but instead are a way to use social science to present your case in the best way possible.  

The first (and incredibly important) step is to develop the trial storyThe story should be discovered through jury research. Then, you frame your trial story to be consistent with the beliefs of the potential jurors in your venue. Gregory then eloquently ties in the concepts of Fundamental Attribution Error and Availability principle to explain how important framing and ordering of the facts is to the success of your case.  

The next step is to elicit confirmation. Once you’ve found through research what the jurors in your venue believe, you need to present the case in a way which is “hand in glove” to what they already believe. When Michael asks Gregory how the lawyer should figure this out, his answer is fitting with the research he’s done: concept focus groups. If the case warrants it, this is the gold standard in Gregory’s opinion. If it’s a smaller case or you don’t have the funds to hire an outside consultant to hold the focus group, Gregory STRONGLY cautions against attempting to do it yourself. Instead, you should ask colleagues, friends, or family to participate in the process. This is because lawyers are already so invested in their own cases it’s nearly impossible to not project your own biases to your mock jury. Lastly, it’s important to remember that a focus group is qualitative, not quantitative research. A group of 10 is not a big enough sample size to conclude why you need a specific type of person on your jury. 

Another “commandment” is to “head the norm.” Gregory explains how this stems from the “norm principal,” and when applied to trial it means if the conduct of the defendant is “according to the norm,” juries are not likely to find liability. He shares an example of a case he had where a man was on the back of a garbage truck that crashed into another vehicle, amputating the man’s leg. He thought the case was perfect, but he kept losing in every focus group and mock trial. Eventually, he realized even though men standing on the back of a garbage truck is incredibly dangerous, every juror had seen people doing it. It was the norm, so they never found liability.  

They move on to discuss another commandment, “plan for hindsight bias.” This is framing your case in a way where a jury would think, “I knew that was going to happen.” For example, a product liability case begins in a corporate boardroom six years ago when they decided not to go with a safer option. As you share the subsequent meetings and decisions made, the jury already knows how the story is going to go when your client swerves to avoid a puppy in the road.  

The next commandment is to create empathy. ReferencingThinking Fast, Thinking Slowby Danny Kahneman, he explains how there are two distinct ways in which people make decisions – intuitive or logical and reasonable. It may seem backwards, but if you can get the jury to project empathy, they will begin to use more logic and analyze. Gregory then emphasizes empathy is NOT sympathy, and shares why it is such an important distinction. 

They move on to briefly discuss Michael’s favorite commandment, “drop the anchor” before the 10th and final commandment, “build the frame.” Citing Mark Mandell, Gregory elaborates that framing can be both overall and very minor. He and Michael both share examples they’ve used in cases which appear minor, but made a huge difference in the jury’s perception of a statement. 

They conclude the episode by discussing the third and final section of Gregory’s book, the new method for putting a case together. He describes how he uses the 10 commandments in such a clear and concise way anyone who puts in the work can do it. In fact, this strategy has been so successful that Gregory and his team have found it will move a good case 15-20% into the plaintiff lawyer’s favor! This incredibly informative episode is truly a must-listen for any plaintiff lawyer who wants a leg up with the jury!  

If you’d like to contact Gregory to learn more from him or to consult on a case, you can email him at greg@winningworks.com or call his office at 256-543-0400.  

 

Guest Bio:  

Gregory S. Cusimano is an owner of the law firm of Cusimano, Roberts, Mills & Knowlton, LLC in Gadsden, Al. and Winning Works LLC a national trial consulting firm. He concentrates his practice on serious personal injury and death cases.   He is a frequent speaker at continuing legal education programs throughout the country. Mr. Cusimano was twice elected to serve on AAJ’s Executive Committee and budget Committee, was chair of the ATLA Blue Ribbon Committee to study juror bias and continues to conduct research on tort reform rhetoric and juror attitudes.  He, along with David A. Wenner, developed the Jury Bias Model™ that many say revolutionized how cases are tried today. 

Cusimano has held every elected office in the Alabama Trial Lawyers Association, including president. The Association has honored him with an annual Cusimano Symposium.  He was appointed by the Alabama Supreme Court to committees to rewrite Alabama Rules of Evidence, the Alabama Pattern Jury Instructions, and to revise the Alabama Rules of Civil Procedure. On two occasions, Mr. Cusimano was asked to be the plenary speaker at his State Bar Association’s annual meeting. He served on the President’s Council of the ATLA, (American Association for Justice – AAJ), and was the first to be made a Lifetime Member of the Board of Governors, 

Mr. Cusimano has published numerous articles in state and national magazines and contributed to articles in various treatises.  He is contributing editor of the two volume Alabama Tort Law book, through the fourth edition and co-edited the six-volume set Litigating Tort Cases. He is one of the authors to Winning Case Preparation  published by Trial Guides. He is listed in Best Lawyers of America and is a Life Member in the National Registry of Who’s Who in American Law. Cusimano was the second inductee into the Hall of Fame of the Small Office Practice Section of AAJ.  He is a Diplomate of the International Academy of Litigators and The American Board of Trial Advocates. The designation of Diplomat and Champion of Trial Advocacy was bestowed on him by AAJ’s National College of Advocacy.  He was inducted as a Fellow of the American Bar Foundation, and the Alabama Law Foundation.  Cusimano served as Chairperson of the National College of Advocacy.  He was given the prestigious Lifetime Achievement Award by the Association of Trial Lawyers of America and the Leonard Ring Champion of Justice Award by AAJ. 

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