Attorney Podcast

31 – Malorie Peacock – Proven Techniques for Proving Damages

In this Table Talk episode of Trial Lawyer Nation, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Malorie Peacock, to answer the questions of our listeners. This show focuses on how to prove your client’s harms and losses at trial.

The first listener question is regarding the idea of whether 3X the medical bills is typically what you use to determine damages or does that only apply in certain cases? Michael recalls being taught the 3X “rule of thumb” back when he was first starting as a trial lawyer, but since then, no longer does for several reasons. First and foremost, times have changed along with insurance company practices. If an insurance company or defense attorney does start to talk to you about 3X medical bills, it’s likely because your case is worth a lot more than that. Instead, Michael focuses on what a jury might do when they look at each element of damage (pain, mental anguish, impairment, or whatever the measure of damage is in a particular state) individually and determine what they feel compelled to put in each blank. That, paired with what Michael calls “piss off factors” based on things the defense might do to compel a juror to give full justice for, becomes a number he’d like to keep as high as possible. Of course, he also takes into account whether his client is for some reason not likable or the defense is super likable, which can also affect the jury’s motivation in an adverse way for his case. Malorie also brings up another important note on the effects of jurors taking into consideration the percentage of fault even though they are instructed not to do so. To which Michael elaborates a little more on how to potentially work the messaging of that to the jury.

The next question by our listeners is how do you work up damages, especially in a smaller case that doesn’t warrant bringing in experts or producing lots of exhibits? Michael starts to answer this question by clarifying that experts generally do not help work up damages, but rather help to prove calculations on future medical expenses or a vocational loss. Having said that, with regard to the human and non-economic damages, he believes people who come in and talk about your client, how they were before, what they went through, and what they are like now can have the biggest impact. This also doesn’t cost any money toward the case. It does, however, take a lot of time in order to visit with these people to talk through what they know of the client before, during, and after, as well as collect photos or videos showing the client in a different state prior to suffering damages, etc. Michael discusses how this approach, even by taking the time to meet with people and learning your client’s story better, will make you more authentic in the courtroom which can have a profound impact on your case. Malorie sums this point up reminding us that all of our clients are more than just their injuries.

The next question they explore is regarding a wrongful death case without economic damages, which Malorie takes the reins on and starts with conveying just how hard it is to put a number on life when no amount of money will ever replace someone’s loved one. She goes on to elaborate that although you can do focus groups, they are not truly predictive. It will always boil down to the 12 jurors you get on any specific day in court who will ultimately put that number on a case. Michael adds that liability is what really tends to drive the number in wrongful death cases and it sometimes becomes very hard to have a conversation with the surviving family member(s) on the difference in the value of life versus the value of a case. He also shares how going to trial in a death case is extremely tough for the family as they relive one of the most painful events in their lives, which places a real responsibility on us as lawyers to make sure we are doing the right thing. Whether that means turning down an offer that is not sufficient to go to trial to fight for more and making an informed choice while understanding upfront the process and pain that will likely come with going through the details all over again. Malorie also describes the importance of knowing your client (a common theme throughout this episode) and understanding their goals, hopes, and struggles for their future to be able to help guide them through the conversation about money.

Proving grief is another topic Michael and Malorie explore with the belief from some jurors that everyone dies at some point. They both agree that there is a definite difference between dying when it’s time and dying when it’s not your time because of a tragic incident. Michael also points out the balancing act that occurs when you don’t want to “torture” your client and make them cry by bringing up all the pain and suffering they encounter now that their loved one is no longer here vs. focusing on the hopes that were and the plans for the future that have now changed because of the actions of someone else. He also points out that this is a good time to utilize experts like grief counselors and let them talk about the pain and suffering your client is, and will, experience due to the loss as well as the grieving process and the natural cycle of grieving to help paint an appropriate picture for the jury. They also give several other examples of ways to express the pain and loss without having to pull tears out of the surviving family members directly.

Michael and Malorie continue their abundance mentality by sharing so much great information in this episode on topics like when to submit and when not to submit a medical bill toward damages; avoiding the status quo and navigating a case to motivate a jury to give your client the justice they deserve; where do your client’s harms and losses fit into the greater story of the trial; an ideal “3 act” trial story through the juror’s eyes; how not to present your client’s harms and losses in a vacuum; how to get your client’s actual story (hint – it’s not what you might think); tips on utilizing psychodramatic methods; expediting the process of spending time with your client to understand their story; how Pareto’s Law can be applied to your docket; and so much more.

These Table Talk episodes could not happen without the interaction and questions that are submitted by our listeners. 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 all of you.

30 – Mark Kosieradzki – Galvanizing Depositions

Mark Kosieradzki – Galvanizing Depositions

In this episode of Trial Lawyer Nation, Michael Cowen sits down with well-known attorney, author of 30(b)(6) Deposing Corporations, Organizations & the Government  (TLN listeners can use “30B619” for an exclusive discount) and Deposition Obstruction: Breaking Through, and long-time presenter at countless legal events, Mark Kosieradzki. This is the best legal podcast for new lawyers.

Mark recalls growing up with parents who were scrappy, rightfully so given their startling history, who instilled in him to stand up for principles, ultimately leading him down the path of becoming a trial lawyer. He points out that many go into the field with a “win at all costs” type mentality, but his father always told him that “if you cheat to win, you really didn’t win,” which he continues to carry with him throughout his successful career in law today.

Mark describes one of the most successful tools he has learned to use in the courtroom are the rules themselves. He finds it to be a lot less stressful when you use the rules to get to the truth and if you play by the rules, you can force the other side to play by them too, which most times is not to their advantage. When Michael asks him how he might know if the opposing side is hiding something from you or not telling the truth, Mark very candidly replies that he starts with the premise that they are, and that trial lawyers want to tell the jury a story whereas a litigator wants to hide evidence. He goes on to impart that when they say they are going to give you “everything,” it’s really more like code for saying we’ll give you everything that doesn’t hurt their case.

Mark shares his evolution of new techniques regarding how he approaches depositions. He starts with a lot of case analysis, storyboarding, puts all his information in “buckets,” and then looks at what he’s trying to accomplish. With that, he starts with the assumption that one person could provide all the information, then structures an outline of what this one person could tell him and works at it to identify what documents are being electronically stored. Then he creates a request for production but doesn’t serve it, knowing there will be immediate objections. Next, he creates a 30(b)(6) designee deposition with a schedule of documents in it but doesn’t request the documents. We’d like someone who can provide all known documents in the organization that exist in this category, Mark continues. Where are they located, how are they organized, and most importantly, what are the methods available for searching? Without having requested anything, we are establishing the most effective and efficient way to request the electronic information, while also preempted all the boilerplate objections before we ask for them. Michael wonders about getting any push back regarding doing discovery on discovery to which Mark explains there is no discovery on discovery because you haven’t asked for the documents yet. Which is brilliant!

Michael asks how Mark structures his life to where he has time to storyboard, plot out cases, take depositions, and then craft his cases. The simple answer, Mark replies, is to just say “NO” to cases, continuing to say that his firm currently turns down 6-8 cases a day and work with small caseloads. Mark remembers starting out as a volume lawyer with 250-300 cases and works with the mentality of getting as many cases as you can and then you settle them based on getting each case’s fixed value with as little work as possible. That type of nonsense, however, assumes that the other side determines the value of each case. He’s also found that by spending more time up front on a case, their hourly value has gone up significantly because they take the time to get the evidence and prove each case. Michael relates his own firm where he’s found the fewer cases each of his lawyers have, the more revenue each lawyer generates. Settlements have gone up, the time from intake to the settlement has gone down, and the personal satisfaction of being able to be a craftsman of doing good for clients is significantly rewarding. It wasn’t until he got rid of the fear in his own mind that if you tell a referring attorney “no” on a case, they will disappear forever. When, in fact, the more time you can spend on the right type of case for yourself, the better the outcomes will be, and the more people will respect you and your practice. It also allows you more time to communicate with your clients which allows them to trust you more by knowing you have their best interests at heart.

The conversation shifts to talk about storyboarding cases. Mark describes the process as for where you lay out what your story to the jury ultimately will be and how you will focus the jury to consider the information which is important in your case. Mark points out that there are many great resources like Cusimano, Wenner, Rick Friedman, Carl Bettinger, and David Ball who have different methods of storyboarding cases, all of which are great, but he doesn’t subscribe to just one method. He explains how he tries to learn ALL the different methods because this is not a checkbox profession, but rather one requiring you to stay nimble in your approach in order to be able to counteract whatever gets thrown at you from the other side. In general, he starts first with a chronological account of the case from beginning to end, which admittedly isn’t always the most persuasive one. Then he begins to craft what he would like the jury to focus on first which in most cases is the decision making that has taken place by the wrongdoer. Mark shares a story using the information availability method that really drives the point home on the importance of sequencing details. Then to take things even a step further, they begin to formulate through whose eyes will they tell their story which is equally important given that there are hundreds of perspectives a story can be told…just ask Stephen Spielberg.

Michael and Mark round out this episode hitting on hot button issues including how to structure your questions to establish if the person being deposed is prepared, what you are really trying to get out of a deposition, and how to prove your oppositions unpreparedness. Mark also talks through a real-life example of how all these different techniques were used in a past case of his: Boswell v. Sherman County. The details of which are simply astounding and need to be heard for yourself. They wrap up with a brief discussion on what the future holds for Mark and even sneak in a little surprise at the end.

 

BACKGROUND ON MARK KOSIERADZKI

Mark Kosieradzki is a trial lawyer from Minneapolis, MN.  His 40-year career has spanned a vast array of cases throughout the United States.  Mark’s landmark civil right case on behalf of an incarcerated woman resulted in the application of section 1983 protections to detainees. His work on sexual abuse was featured in a CNN series on Rape in Nursing Homes.

http://www.cnn.com/interactive/2017/02/health/nursing-home-sex-abuse-investigation/

The Minneapolis Star Tribune has described him as “one of the nation’s most feared elder abuse litigators.” http://www.startribune.com/meet-the-minnesota-lawyer-taking-on-the-senior-care-industry/450626193/

He is recognized in the “Best Lawyers in America”.  He is certified by the National Board of Trial Advocacy as a Civil Trial Specialist.

Mark is recognized as one of the country’s leading authorities on deposition technique, strategy, and law.  He is the author of 30(B)(6): Deposing Corporations, Organizations & the Government, published by Trial Guides. His book Deposition Obstruction: Breaking Through has been described as the hornbook for dealing with deposition obstruction.

Mark has joined trial teams throughout the United States in a wide variety of wrongful death and catastrophic injury cases, including malpractice, bad faith, construction injuries, nursing home abuse, interstate trucking accidents, and products liability.

When Mark turned 50, he had a midlife crisis and started playing the blues harmonica. At 63 he took up salsa dancing in Havana.

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