Artemis Malekpour

67 – Brendan Lupetin – Masked Justice: Part 1

In this Trial Lawyer Nation podcast, Michael sits down with trial attorney Brendan Lupetin out of Pittsburgh, Pennsylvania. Brendan, a self-proclaimed “trial nerd,” is one of just a handful of attorneys who has tried a case in the era of COVID-19, receiving a $10.8 million dollar jury verdict on his medical negligence case. They’ll discuss Brendan’s background, the details of the case, how he prepared, what it was like trying a case during a pandemic, and his advice for lawyers and courts across the country to start having jury trials again.

The episode begins with an overview of Brendan’s background and how he became the successful trial lawyer he is today. He explains how he began by trying about 10 bad cases where he lost “in brutal fashion,” and finally found his first victory with a $500 rear-end car case verdict. Since then, he’s focused on reading everything and anything he can on trials. Now, he’s tried 40 cases to jury verdict and has found great success in the last 10.

As a self-proclaimed “trial nerd,” Brendan spends most of his free time reading and studying the work of other great trial lawyers and legal scholars, citing Rick Friedman, Keith Mitnik, David Ball, Artemis Malekpour, Jude Basille, and many others. He and Michael discuss the difficulties of implementing all the trial theories and strategies available today, but Brendan explains how his approach is to blend them all together to find what works best for him. A sentiment echoed by Michael and certainly a recurring theme on the show.
Michael then asks Brendan about the details of the medical malpractice case he recently tried. While the difficulties of trying a case during a pandemic are apparent, Brendan insists his job was made easier by the fact that this was truly a great case. Brendan’s client, a 41-year old father and project manager, went to the hospital for an MRI. He had an allergic reaction to the contrasting chemical they injected him with. While the hospital had policies in place to protect patients in the event of an allergic reaction, none of those policies were followed and Brendan’s client was unfortunately left with a severe brain injury.

Michael then notes that Brendan ended up with such a simple theory, which Brendan explains was a long road to get to. They originally had 3 defendants, but after numerous focus groups and hiring John Campbell of Empirical Jury to run a study after Brendan “serendipitously” listened to his podcast episode 3 ½ weeks before the trial, they decided to drop one of the defendants because he complicated the story. Michael agrees that this was a smart move, quoting Rodney Jew by saying, “If you chase two rabbits, you won’t catch either one.”

Brendan also kept in mind Mark Mandell’s case framing theory throughout the trial and describes how he was tempted to dispute the defense’s timeline of events because he found they were about a minute and a half off. But after employing the case framing theory, he and his partner decided to leave that out because it drew away from the main focus of the case – “Policy violations caused delay, and delay is never good in an emergency.”

Michael then asks Brendan what else he’s learned throughout his study of advocacy that he used in the trial, to which Brendan simply replies, “everything.” He describes his journey to crafting the perfect opening statement, employing techniques from David Ball, Nick Rowley, Keith Mitnik, and many others. He also recorded the final product and shared it on his YouTube channel. It’s clear throughout the episode that Brendan is truly a lifelong learner and is constantly honing his craft as a trial lawyer.

After gaining insight into the case and Brendan’s trial techniques, Michael asks the question on everyone’s mind – What was it like trying a case during the pandemic? Brendan first gives credit to Judge Jackie Bernard and the court system for setting up an incredibly safe and effective trial plan, and emphasizes the need for more courts to follow suit and begin holding jury trials again.
The court began by sending out a questionnaire to potential jurors which asked hardship questions, immediately excluding anybody who had health concerns or was extremely uncomfortable attending a trial because of COVID-19. Voir dire was held in a huge courtroom with 45 people in the room, and 45 others in a separate room watching on video. The process was so streamlined and well planned that they were able to select the jury in less than four hours.

Once the trial began, this attention to detail became even more evident. Everybody wore masks for the duration of the trial, there was plexiglass around the judge and witness stand, and the jury was spread out around the room in a way so creative you have to hear it to believe it. By using these precautions, the trial went on without a hitch and with a significantly lower risk of infection than a traditional trial set up.

Brendan and Michael agree that without a significant threat of a trial, their big cases won’t result in a fair settlement. They discuss the immediate need for courts to find a safe solution to continue jury trials and the need for plaintiff lawyers to work together to persuade their courts to do so.

They end the episode on a surprising note. Brendan explains how everybody thinks trying a case during the pandemic is this crazy experience, but he said it really didn’t feel very different from trying a case in a courtroom you haven’t been in before. You always need to adapt to a new judge’s rules, a new courtroom set up, etc. This wasn’t much different than that. And by implementing the safety precautions Brendan described, courts around the country can begin to open and allow the pursuit of justice instead of pushing trials off further and further. As Brendan poetically put it, “Hope is not a plan.”

If you’d like to learn more from Brendan Lupetin, visit his firm’s website and subscribe to his YouTube channel.

This podcast also covers Brendan’s favorite closing strategy, obtaining a representative jury during COVID-19, the “freaky” accurate results of Brendan’s Empirical Jury study with John Campbell, and so much more.

 

Interested in hearing more COVID Era trial stories? Check out our other Masked Justice episodes:

 

Bio:

Brendan is a trial lawyer in Pittsburgh, Pennsylvania.  He focuses on medical malpractice, product defect and personal injury law.  He loves helping the people he represents and trying their cases to jury verdict when necessary.

Brendan is a trial nerd and truly enjoys reading trial books, studying trial videos and seminars, watching trials and “talking shop” with fellow trial lawyers.

The son of a doctor and trauma counselor Brendan learned early on the importance of compassion, empathy and to always stand up for what is right, no matter the consequence.

Following a four-year tenure as a scholarship swimmer, Brendan received his B.S. from the University of Pittsburgh in 2000 and his J.D. from the University of Pittsburgh School of Law in 2005.
During his career, Brendan has tried numerous cases of all types to jury verdict.  Over the course of the past several years, Brendan has obtained numerous multi-million-dollar verdicts for his clients – all of which far exceeded the highest offers of settlement.

What Brendan loves more than anything, however, is spending time with his wife and high school sweetheart Lacey and their three sons Nathan, John and Owen.

 

36 – David Ball – Finding the Alignment – Understanding What Jurors Want

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.”

 

BACKGROUND

David Ball, who wrote trial advocacy’s best-selling strategy bookDavid Ball on Damagesis 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 (artemis@consultmmb.com), 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.)

 

RESOURCES

Reptile: The 2009 Manual of the Plaintiff’s Revolution

09 – Artemis Malekpour – All-Inclusive Trial Strategy

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In this Trial Lawyer Nation podcast, Michael Cowen sits down with a nationally renowned trial consultant, Artemis Malekpour whose strength lies in her trial litigation strategy consulting. She describes it by boiling it all down to, “we help your case.”

However, the sheer magnitude of the scope of her work ranges from before you even file a case, to the end result, and everything in between, including focus groups, trial strategy, mediation strategy, discovery, pre-suit issues, voir dire, and opening statements to name just a few. Artemis describes her entry into the profession as coming initially from a background of psychology and starting down the pre-med path when realizations came to her, along with a pretty dramatic chain of events, that aligned her studies with a passion toward the legal industry. Her dilemma with the situation turned into learning more and taking in feedback from many different subsequent cases and being introduced to them from the inside, which eventually confirmed she was heading in the right direction for herself.

Empathizing with Michael, who also has a psychology degree, Artemis describes several of the cases she’s been through where the emotions start to take over and the desire to help everyone kicks in. Both Michael and Artemis give several examples of intake processes now firmly in place to help avoid accepting cases which are not suitable to take on both for the good of the firm or for the good of the client.

Artemis also opens up about her focus group experiences across the country, averaging sometimes around 40 per year, and divulges some of the trends she is seeing as a result of our current political climate. An interesting moment is a conversation between her and Michael about the power of silence, be it in the courtroom or with a focus group, and how it can be used to benefit your case. And while this technique and others are discussed, Artemis reinforces the importance of understanding there is no “magic formula” for success and describes what she believes the best trial lawyers do after trial.

The insights Artemis shares throughout the conversation are not just insightful, but practical toward any case. Michael jokingly refers to these insights as a “list of the things we do to screw up our own cases.” But we also know even that depiction is sometimes an understatement, which is why talking with Artemis was such a pleasure in this episode. She tells it like it is, and we all come out better on the other side.

Background on Artemis Malekpour

Artemis Malekpour is a partner in the litigation consulting firm of Malekpour & Ball.  With a background in psychology and psychiatric research, she specializes in focus groups, case strategy, damages, and jury selection.  Artemis did her undergraduate work at the University of North Carolina at Chapel Hill, then earned a Master’s in Healthcare Administration from UNC’s School of Public Health and a law degree with honors from Duke University.  She has consulted on a wide variety of cases across the country, with a knack for identifying potential landmines, incorporating her knowledge from years of watching jury deliberations and talking with jurors.

For more info on Artemis Malekpour visit https://www.trialguides.com/authors/artemis-malekpour/

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