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Episode

40 – Ken Levinson – Focus Groups and Metaphors

By Michael Cowen — 7 years ago

In this Trial Lawyer Nation podcast, Michael Cowen sits down with Ken Levinson, a successful trial attorney who is also very active with his trial consultant focus group practice, for a discussion on how his unique practice is getting big results in the courtroom. Ken selfishly loves his “split practice” primarily because of its process of constant learning which comes with both sides of his practice, noting that he’d never want to give either of them up.

The conversation begins by exploring focus groups, as Ken talks through how they help in cases because lawyers are able to find out what resonates with people and then test it before ever stepping into the courtroom. “Over time, I’ve learned the better approach is to accept what people tell you. Listen, and in a neutral way, find out what’s going on.” Ken goes on to say “I don’t want to fall in love with my case or a witness or a theory without really stepping back and almost looking at your case in a different way” which is exactly what focus groups help him do while pointing to the teachings of Michael Leizerman [link to Michael Leizerman episode] of needing to have a “Zen mind” or a beginners mind. He adds “I think we get lost in the language of being a lawyer and I’ve really tried to train myself to talk like real folks in everyday life about our cases.” Michael then points out how it is incredibly important to be yourself, noting the power that authenticity brings to human communication both inside and out of the courtroom.

After working with so many great lawyers, Michael wonders what Ken has seen separates the good from the elite. Ken points out two factors he’s seen in elite lawyers: 1. They know their cases inside and out and although they may seem to talk very casually about things in the courtroom, they actually work extremely hard; and 2. The better trial lawyers he’s gotten to know are always learning. Ken goes on to point out there are some firms he might do 20+ focus groups for in a given year, and although they have been getting multi-million dollar verdicts for decades now, they are always learning, testing, reading, revising, and thinking about how to improve.

Michael speaks to his own experiences on learning and how over the years, while there are some basic human things that don’t change, many things do change over time and thus, lawyers need to be open to continuing to learn in order to be effective in the courtroom. Ken follows up to describe some of the other things he’s doing to continually get better, such as reading a lot on decision-making, psychology, and metaphors, then discussing what he’s learned with friends and colleagues, testing things for himself in focus groups, case preparations, depositions, and in the courtroom. He also goes to seminars and holds in-house trainings. Ken also discusses some of the ideas he’s learned from R. Rex Parris [link to Rex episode] on metaphors and how he’s been able to incorporate them into his courtroom proceedings.

Talking more about Ken’s experiences with focus groups and testing theories within them, he describes a few exercises he’s used to better understand the imagery that focus group juries associate with their case using simple techniques. Then he takes things a step further to discuss the findings, one-on-one, with the focus group participants. Through this process, he’s discovered many great metaphors and images that have helped his cases as well as some that needed to be tweaked or reworked for a case, noting that it’s better to find out and understand things which can negatively impact your case prior to trial, than during it, of course.

Beyond running his law firm and focus groups, Ken has also written books and articles, which begs the question – how does he have time for all of this? Ken describes his methods of time management which include getting up several hours before his wife and kids, but also includes time blocking and scheduling things based on his own understanding of the best times for him to get work done, which he details more in this episode. Michael also talks through the structures he’s implemented in his life and his firm to help to “move the ball forward” toward accomplishing his goals.

Michael turns the conversation toward what lawyers can do to set themselves up to achieve their goals, whether it is getting a $43 million verdict or a $6 million settlement, to which Ken turns the table a little bit and points out some great advice he had heard from Michael about taking on the right cases and turning away the others. Michael elaborates on this point and discusses the juxtaposition of the normal mentality associated with turning down cases, which really hits the nail on the head in terms of getting more of the types of cases lawyers want to get and building their practice.

Their conversation rounds out in a discussion revolving around the terms Ken has seen come up over and over in focus groups involving trucking cases specifically. Ken talks about terms he’s found to be important to focus groups and juries alike such as “professional driver,” and ideas revolving around vision and forgiveness. Truly insightful information that Ken discusses more in depth, which not only brings perspective to trucking cases at their face value, but also the impact focus groups can have in helping to bring another element of humanity into our cases by getting the perspectives of what’s important in the eyes of others.

 

BACKGROUND

Ken Levinson is a passionate advocate for accident survivors and child safety. For more than 20 years, he has represented disenfranchised clients against corporate giants. By using the law, the court system and his skill as a lawyer, his goal is to level the playing field for those facing the most challenging times of their lives.

 

Leadership

  • Former Section Chair of the American Association for Justice  Motor Vehicle Collision, Highway and Premises Liability Section
  • Vice Chair of the American Association for Justice Trucking Group
  • Board Member of the American Association for Justice National College of Advocacy
  • Co-chair of Overcoming Jury Bias Litigation Group
  • Regional Coordinator of the American Association for Justice Chicago Student Trial Advocacy Competition
  • American Association of Justice Board of Advocates
  • American Association for Justice Law Schools Committee
  • American Association for Justice Voter Protection Committee
  • Committee Chair of the American Association for Justice Litigation Group Coordination Committee
  • Press Advisory Board American Association for Justice
  • Chair Chicago Bar Association Solo & Small Firm Practice Committee

Ken also serves as chair of the section’s Practice Resources Committee, which compiles documents such as pleadings, research, expert reports and other information that might be helpful to fellow trial lawyers. As part of AAJ, Ken acts as Secretary of Motor Vehicle Collision, Highway, and Premises Liability Section and Chair of the newsletter committee; he has served as Education/CLE Vice-Chair of the Trucking Litigation Group (2014–2015) and Co-chair of Publications Committee (2013-2014). Additional memberships include the Chicago Bar Association, where Ken has also been the Solo & Small Firm Practice Committee Chair from 2009-2019, Vice Chair (2008 – 2009), and the Illinois Trial Lawyers Association, where he is currently a member of its Board of Managers. Under ITLA, Ken is also a co-chair of the legislative committee. In 2010, Ken was elected to serve a three-year term on the Trial Lawyers College Alumni Board. He is currently serving on the editorial board of The Warrior, the Trial Lawyers College magazine.

Ken has written numerous articles for prestigious lawyer publications and spoken at dozens of conventions for trial lawyers and American Bar Association organizations. Ken also recently appeared on an episode of the Trial Lawyer Nation podcast.

 

Honors and Awards

Ken is currently the Vice Chair of the American Association of Justice Trucking Group. Ken also formerly served as Chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section and  Illinois Board of Governors for the American Association for Justice, a designation that carries Illinois Trial Lawyers Association (ITLA) Board status. He has been recognized by Leading Lawyers and Super Lawyers magazines as one of the top attorneys in Illinois, including the Super Lawyers Top 100 in 2012, 2016, 2017, 2018 and 2019. He is the co-author of Litigating Major Automobile Injury and Death Cases, a two-volume reference series designed to help attorneys build strong cases for their clients by highlighting real-life case studies related to Major Auto Injury and Death. The book is published by AAJ Press/Thomson Reuters.

Named one of The 40 Lawyers Under 40 to Watch in Illinois by the Law Bulletin Publishing Company, Ken is among a select group of trial attorneys that has graduated from legendary lawyer Gerry Spence’s Trial Lawyers College, which is dedicated to training and educating lawyers who represent people against corporate and government oppression. Ken is one of only 100 trial lawyers from Illinois selected for The American Trial Lawyers Association, where membership is by invitation only.

 

Education

After receiving his Bachelor of Arts degree from Hobart College in 1989 and his Juris Doctor in 1992 from Case Western Reserve University School of Law, Ken was appointed an Assistant Illinois Attorney General, representing state agencies and employees in civil matters, including both personal injury and civil rights cases. He has been admitted to practice before the Illinois Supreme Court and the Northern District of Illinois, United States District Court since 1992. Levinson is also admitted to the Federal Trial Bar.

 

Personal

Ken volunteers his time and resources to a variety of community and charitable organizations in the Chicago area, such as sponsoring the Tristin Speaks Benefit, which raised funds for autism awareness. Ken is a former member of The Citizens’ Council of LaGrange, a non-partisan community group that promotes better government through the recruiting and evaluation of candidates for local public office, having co-chaired the Council’s Qualifications Committee. Ken participated in the 39-mile, two-day Avon Breast Cancer Walk and the St. Jude Walk/Run to End Childhood Cancer. Ken also supports Art in Motion, an event hosted by the Associate Board to raise funds for the Rehabilitation Institute of Chicago, now known as the Shirley Ryan AbilityLab.

Ken is an area native, born in Chicago and currently living in LaGrange, IL. He is happily married and the father of three boys, keeping him very active in youth and sports-related activities. One of his favorite pastimes is to go with his wife to their sons’ high school varsity games and in-state and out of state tournaments for basketball and volleyball.

Ken can be reached at all hours via email: Ken@LevinsonStefani.com

 

RESOURCES

How Customers Think: Essential Insights into the Mind of the Market by Gerald Zaltman

Marketing Metaphoria: What Deep Metaphors Reveal About the Minds of Consumers by Gerald Zaltman

Metaphors We Live By author George Lakoff and Mark Johnson

 

 

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Episode

38 – Wayne Pollock – The Court of Public Opinion

By Michael Cowen — 7 years ago

In this Trial Lawyer Nation podcast, Michael Cowen sits down with attorney and founder of Copo Strategies, Wayne Pollock, for an in-depth discussion on the court of public opinion [copo] and how it can affect your clients, cases, firm, and reputation.

Having graduated college and working in public relations for a PR firm for about four years, he was introduced to the legal world through one of his clients at the time, Fox Rothschild, now an AM Law 100 law firm, which inspired Wayne to go to law school. Graduating law school from Georgetown University, he went to work at a big law firm for six and a half years as a litigation associate while he never stopped liking public relations. Wayne describes himself as an attorney focused on the court of public opinion, which really means he helps other attorneys and their clients, ethically, strategically, and proactively engage public opinion in order to help those clients resolve their cases favorably. Wayne does this work to help the attorneys build their practices, he also goes in as a consultant to law firms, and other times as limited scope co-counsel to the actual clients. Overall, his goal is to help clients resolve their cases favorably through the media and through outreach to the public, essentially blending media strategies with legal strategies, and ethical compliance with defamation avoidance.

Wayne describes the launch of this offering from his firm, mainly because he didn’t see this kind of fixture being offered to attorneys and clients. Often, he describes seeing, attorneys and clients who are talking to the media in connection with active litigation, but they didn’t seem to have a strategy. They don’t seem to be thinking about what’s happening in court when they’re saying things publicly. They certainly aren’t always thinking about the ethics. And he’s also seen plenty of press releases where the PR firm or the law firm is clearly defaming the other side. So, he took that need in the market and thought his services could be used in a different way, thereby launching his firm a couple of years ago, to do just that.

When it comes to being in the media, Wayne admits it’s daunting for many attorneys, mostly because unlike a normal litigation practice, there are no rules. There are literally no rules of evidence, no rules of procedure, and it’s somewhat of an “every person for themselves” type environment, and that’s difficult for attorneys to get used to. He points out there are obviously ethical rules and defamation rules, but in terms of how you engage with the media and what you say, there’s really no set core set of practices that are established. Regardless, Wayne still encourages his clients, and their end clients, to always be thinking about the court of public opinion and engage it head on as a part of their legal toolkit, because often times, they find that what happens in the court of public opinion impacts what happens in the court of law in this era of social media, online news, and the viralness of both. From Michael’s previous experience, he’s also found competing mindsets of the ego of wanting to be on TV and wanting to be quoted, pitted against the fear of not wanting to cause harm to anyone, especially his clients. Wayne goes on to discuss the privilege issue and how it is a huge problem when law firms hire outside PR firms. He explains it all in detail, but once he realized that he could help get around the privilege issue by serving as an attorney, the light bulb went off and he said to himself, “I guess I’m just going to have to do this myself.”

Wayne defines the “court of public opinion” as people who are not parties to a legal dispute, but whose perceptions of the dispute could impact how the dispute is resolved and how the litigant’s reputation or prosperity could be affected. He goes on to describe the many different types of pools of people who can be affected by the court of public opinion, as well as organizations who stand for the same kind of qualities a client, or their case, do which can help bolster a case by piggybacking on the case and drawing more attention to it. Wayne also describes the effects of the ripple far and wide when information is spread in the court of public opinion, whether it is compelling others to call in with crucial evidence or even developing additional suits with others who have experienced the same thing being tried in a current case, all of which adds to the snowball effect that is created. He’s even had judges tell him they will dot their i’s and cross their t’s that much more closely when they know they’re involved in a high-profile case because they know more eyeballs are on them. And he adds exactly how plaintiff attorneys can use the court of public opinion to their advantage to fight the David v. Goliath fight against the big law firms hired to represent defendants.

From a marketing perspective, Wayne talks about how being seen in public media outlets can give an attorney instant social proof of the work you’re doing, by literally seeing you in action. “It’s not just you sending a press release or someone visiting a website. They see you quoted in an article, they see you being an advocate for a client, and they think to themselves, wow, he/she really knows what they are doing. Maybe I should contact them. That’s a lot different than just Googling ‘trucking attorney in Texas’ and hoping that somehow they get to you.”

Michael and Wayne explore a myriad of topics surrounding the court of public opinion throughout this episode, including: the ethics surrounding being in the media and the change of societal narratives and perceptions; anchoring – a tactic rooted in psychology and persuasion; the rules of professional conduct when engaging with the media; getting consent from a client, especially with the understanding that there are many mean-spirited people in the world who are ready to say bad things; core factors to consider when determining if a case is newsworthy and how to frame cases to be “sexier” in the eyes of the media; and so much more. This episode is one to listen to several times for attorneys who are thrust into the spotlight feeling unprepared, as well as for attorneys with cases that could have greater potential through exposure from the court of public opinion.

“Please note the TLN19 discount code mentioned in this show has now expired.”

 

BACKGROUND

Wayne founded Copo Strategies in 2016 after spending over a decade achieving favorable legal and public relations results for his clients.

Prior to starting Copo, Wayne was a litigator at Dechert LLP, one of the largest and most prominent law firms in the world, with more than 900 attorneys worldwide, and more than $1 billion in annual revenues. In his more than six years at the firm, he obtained favorable outcomes for clients by analyzing and presenting complex legal and factual issues. While at the firm, Wayne worked on high-stakes, high-profile matters that were often reported on by local, national, and international media outlets. For example, he was on the Dechert team that represented the ten former independent directors of Lehman Brothers in the wave of investigations and litigation triggered by Lehman’s September 2008 collapse. He was also on the team that represented Takata, a leading automotive parts manufacturer, in litigation and regulatory investigations related to the company’s recall of tens of millions of potentially defective airbags. And, Wayne was on the team that represented the Marshall family in litigation against Vickie Lynn Marshall (a.k.a. Anna Nicole Smith).

 

Before law school, Wayne practiced public relations at The Star Group, a one-time Advertising Age “Top 100” marketing communications firm. In his four years at the firm, he developed and executed public relations and marketing initiatives on behalf of regional, national, and international clients. While at Star, Wayne cultivated relationships with journalists and secured dozens of placements for clients in national and regional media outlets including USA Today and The Wall Street Journal, regional television network affiliates, and national trade media outlets.

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Publications, Media Appearances, and Speaking Engagements

Please click here for a list of Wayne’s publications, media appearances, and speaking engagements.

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Education

Wayne graduated in 2009 from Georgetown University Law Center, where he was Senior Special Projects Editor for The Georgetown Law Journal.
Wayne graduated magna cum laude in 2002 from the S.I. Newhouse School of Public Communications at Syracuse University, where he majored in public relations.

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Court Admissions

Wayne is admitted to practice law in all state courts in Pennsylvania and New Jersey. He is also admitted to practice in the U.S. District Court for the Eastern District of Pennsylvania, the U.S. Court of Appeals for the Third Circuit, and the U.S. Court of Federal Claims.

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Personal

Wayne resides in Center City Philadelphia. If you keep an eye out, you might find him running on one of Philadelphia’s numerous running trails, desperately trying to keep Father Time away from his knees.

 

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Episode

37 -Sonia Rodriguez – Caseloads: Quality vs. Quantity

By Michael Cowen — 7 years ago

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 Truth about Employee Engagement: A Fable about Addressing the Three Root Causes of Job Misery by Patrick Lencioni

The Advantage: Why Organizational Health Trumps Everything Else in Business by Patrick Lencioni

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Episode

34 – Sonia Rodriguez – Hindsight in the PI World

By Michael Cowen — 8 years ago
(11 votes, average: 5.00 out of 5)

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 episode focuses on advice for our up-and-coming personal injury attorneys on the things we know now and wishes we knew earlier in our careers.

Starting right off in the broad sense of the industry, we start with a question about what advice would we give to a lawyer who is in the first 2 years of practice. Learning the hard way, Sonia states why it is critical for a successful personal injury law practice to understand the difference between a PI practice and a typical business practice when you are talking to bankers and lenders. The discussions you’ll have with bankers and lenders about lines of credit and assets in regards to your practice can sound like a foreign language to certain bankers, so you really need to find a bank that knows the PI practice and knows that many times the assets you have are going to be intangible, and are more likely to be in your file cabinet or on your server. Michael also points out how the banking regulations have also tightened up in recent years where it has become harder for PI lawyers to borrow against their case list. To this point, Sonia suggests once you have a few years under your belt, you should start saving/hoarding your money so you can borrow against your own investments and savings when you want to. They both agree once you hit your first big case, you don’t want to start living like that has become your new lifestyle every year or every month and you need to live below your means for a long time. Michael recalls avoiding the temptation to go buy the expensive Mercedes and shares how his first house was only $67,000, which was in stark contrast to other lawyers who went out and bought big houses and could barely pay their credit cards or make it month to month. It was with this foresight and now shared knowledge, that Michael reveals his early financial habits have led him to build the successful practice he has today.

Providing additional advice for PI lawyers just starting out, Michael weighs the pros and cons of gaining experience by starting in a district attorney’s office (hint – it’s not advised…and for good reason). He goes on to suggest several much better ways to gain experience and learn from other attorney’s experience, this podcast being one of them, which will prove to be more advantageous in building a solid foundation for a personal injury practice. Thinking from the other end of the spectrum, Sonia also offers advice regarding business relationships and how they are bound to change over time and shares the key factors you need to consider before entering into a partnership, regardless of the current or past relationships status. A lesson the majority of seasoned attorneys would likely agree with, hindsight being 20/20. Michael, being one of them, recounts one of the things he knows now that he wishes he knew earlier, and how he wishes he had spent a seemingly small amount of money early on to hire a lawyer to draft his agreements with other lawyers. Being lawyers, he says, “we think we can do it ourselves,” and in the process, we end up overlooking the holes in an agreement and only looking at it through rose-colored glasses as if nothing will ever change in the relationship. Michael reveals, in his own hindsight, the amount of money he’s paid out on legal fees to draft things for him now, has turned out to be less than 1% of what he’s paying people that he wouldn’t have had to pay had he had those agreements in place. LESS THAN 1%!

Sonia transitions by discussing the amount of stress brought on day-to-day in this industry. Our bodies were never designed to handle these amounts of mental or physical stress that can come with a heavy litigation practice, she says, and on the plaintiff’s side, it can also be very easy to become emotionally invested in our client’s cases. As a trial lawyer, you need to find a mechanism for an outlet, such as exercise, meditation (if it works for you), or even journaling, in order to maintain your mental health. Michael adds that you need to find a balance in order to internalize and feel your client’s pain without it taking you over. The Harvard Business Review published a great article about the stress and anxiety of being a perfectionist, as we tend to do in this line of work which also lays out several options for mental self-care.

Michael continues to state, as he has on many episodes of this show, to get out there and try more cases. There is never a shortage of cases to be tried in any firm. And no one will remember the cases you lose as you gain experience or even years into your practice for that matter. He goes on to say that you do not suffer a reputational hit for losing a trial and how he has actually lost more cases than some people have ever tried, but still has tons of referrals coming in because attorneys remember the ones he’s won.

Throughout the rest of this episode, Michael and Sonia discuss topics like: the power of saying “NO,” the importance of reputation; how to use a cost/benefit analysis to determine the right cases to take on; their opinions on paying for online profiles with various legal organizations, what to do in discovery when you think the other side is hiding something from you; how to (and more so, how not to) attract leads online; tricks to leveraging social media and pitfalls to avoid when using it; and many others along the way.

These Table Talk podcasts could not happen without the interaction and questions submitted by our listeners. We are eternally grateful and encourage you to continue to send us your thoughts, ideas, and questions as we love sharing our experiences with them.

“Please note the TLN19 discount code mentioned in this show has now expired.”

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Automotive Legal Podcast Episode

33 – Julian C. Gomez – Autonomous Vehicles: People v. Machines

By Michael Cowen — 8 years ago
(11 votes, average: 4.91 out of 5)

In this Trial Lawyer Nation podcast, Michael Cowen sits down with automotive products liability attorney, Julian C. Gomez, to discuss his expertise on product cases, specifically dealing with autonomous vehicles (AKA: Robot Cars). Most attorneys can relate, but the gist of every other talk Michael has ever heard on this topic, before Julian’s, was that we’re going to get robot cars, they’re never going to crash, and they’re going to put everyone out of business in 5 years. This is certainly what the automotive industry is trying to promise, but the data we have to date suggests otherwise.

Julian’s beginnings, getting into the field of automotive product cases, started back when he clerked for a judge who was the first in the country to try a Ford Explorer/Firestone case. He was able to sit through the trial and learn from some of the best lawyers in the country, which sparked his interest and set him on this path. When Julian started doing automotive product cases, he noticed the engineers were starting to address the legal issues as opposed to the engineering issues behind them. He points out that the engineering is really not all that difficult – the vehicle uses data gathering devices, puts the information into a data processor, which processes the data based on an algorithm, then an answer or result is spitting out, and makes the vehicle do something. Getting too far into the details can sometimes overcomplicate things, which Julian compares to the area of autonomous vehicles and states “I don’t have to be a computer engineer, to know that my computer is broken or to know that it’s working.”

Julian then describes the different levels of crash avoidance technologies (1-6) to include all sides of the vehicle along with the various types (signaling warnings to taking full-blown actions with the vehicle). He goes on to talk about how the levels start to gray out based on human data input as well as how there really are no “driverless” vehicles on the road today, despite what you hear on the news. He also discusses a recent AAA report addressing the confusion regarding the different types of autonomous systems due to the industry, and manufacturers, because there is not a standardized naming structure for these systems.

Interestingly, Julian explains the current way they are measuring the level 3-5 type autonomous vehicles is through disengagements, where the human driver has had to take over the car’s actions instead of it driving itself. In comparison, Apple had roughly 1 disengagement every 1.2 miles whereas, on the opposite end of the spectrum, Waymo had roughly 1 disengagement every 10,000 miles. And while there is a huge disparity between the top performers and the bottom, and numerous tragedies throughout the industry, Julian points out the real problem is there haven’t been enough vehicle miles driven to know how safe they are going to be. He also talks about the millions of vehicle miles driven each year compared to the thousands of deaths that occur on the road, and then extrapolates the data from when Uber had its recent fatality, based on the number of vehicle miles driven by autonomous cars at that point, to determine we would be experiencing around 1.6 million deaths each year. He brings this point home by stating even if you cut that number in half multiple times, it’s still much more than what is happening today on our roads.

Another problem Julian points out is the conflicts that occur between an objective algorithm system in the computer within the car working with a human subjective system. He gives a great example of how we’ve all seen cars, even before we started driving, interact in different ways when the driver is planning to turn right (IE: roll slowly through the light, even if it’s technically not the correct way). As humans, we are able to gauge how much space/time we have between our vehicle and the vehicle turning in front of us, whereas autonomous cars look at it from the standpoint of what the rule is and how it will obey that rule.

Michael points out how the computers can only do what they are programmed to do, making the job of the engineers to think of every possibility and then the safest possible outcome for each of the scenarios unfathomably enormous. Julian notes that as humans, the second most common function our bodies perform (breathing being the first) is seeing. We have been “seeing” and processing things through our eyesight for our entire lives, since day one. Some even suggest for a computer to process the amount of data we have seen in our lives, the computer would be the size of a warehouse, much less the size of a car, or the size of a computer in a car. Julian also discusses the responsibility to predict the unknown, which is nearly impossible, as if to say “tell me everything you don’t know.”

Michael and Julian recount the unfortunate incident in Arizona with the self-driving Uber car, the details of which are likely not what you might have heard previously, nor are they what you might expect (hint, hint – the frontal collision system was turned off, but by whom? Listen to find out). Also, perhaps somewhat shockingly, was the fact that the case was settled in 10 days, which Julian notes, might give you a sense of how Uber felt about their culpability in the case. Michael and Julian also discuss the perceptions of the “auto-piloted” cars as set forth by the marketing departments of the vehicles and how they are not exactly in line with what the cars are actually equipped to do.

The podcast concludes with Julian revealing his process for evaluating which product liability cases to take on as well as the “why” behind them versus simply going after damages, the results of which could do more harm to the legal industry than good when the wrong type of cases are pursued. They also make some predictions as to the future of mass-produced autonomous vehicles and where they’ll likely be used. As this technology continues to evolve, this episode drives home (no pun intended) the vast areas of the unknown in the auto industry in regards to where blame should be placed in such an environment where humans are sharing responsibility with computers, along with the engineers and companies who design them, to keep our roadways safe for everyone.

“Please note the TLN19 discount code mentioned in this show has now expired.”

 

BACKGROUND ON JULIAN C. GOMEZ

Julian C. Gomez is an attorney in McAllen, Texas. Julian was raised in South Texas. Julian is a ninth-generation Texan and his family still ranches on their original Spanish land grant. Julian graduated from Texas A&M University with a degree in Agricultural Economics and was a member of the Corps of Cadets while at Texas A&M.

After graduation, Julian spent time on the floor of the Chicago Mercantile Exchange as an analyst in the cattle futures and options pits. Julian graduated from the University of Houston Law School in 2000. Julian was a law clerk for Filemon Vela, United States District Judge, Southern District of Texas, Brownsville Division and a law clerk for Reynaldo Garza, United States Circuit Court Judge, Fifth Circuit Court of Appeals. After his clerkships, Julian founded The Julian C. Gomez Law Firm and has practiced there since.

Julian has a national and international practice focusing primarily on catastrophic product liability and negligence cases, mass torts, and contingent commercial litigation. Julian is a past Chairman of the American Association for Justice’s Products Liability Section (the largest organization of plaintiffs product liability attorneys in the U.S.); on the executive board of and the vice president of continuing legal education for the Texas Trial Lawyers Association, on the board of directors of and co-chair of continuing legal education committee for the Attorneys Information Exchange Group (the largest organization of plaintiffs automotive product liability attorneys in the U.S.); has served on plaintiffs’ committees in national mass tort litigation; is a graduate of Gerry Spence’s Trial Lawyer’s College; is a graduate of the American Association for Justice’s Leadership Academy; is the special liaison to the National Highway Traffic Safety Administration on behalf of both American Association for Justice’s Products Liability Section and the Attorneys Information Exchange Group; regularly speaks at international, national, statewide, and local continuing legal education courses on topics ranging from federal jurisdiction to products liability; is the 2017 Men’s 40-44, –69k Texas Weightlifting Champion; and has a 3:45 marathon time.

Julian is a U.S. Coast Guard licensed captain, is on the board of directors of the USA Weightlifting Foundation (the foundation for United States’ Olympic weightlifting athletes) the board of directors of McAllen Educational Foundation (the foundation for the McAllen Independent School District), and the board of directors of the Texas International Fishing Tournament (the largest fishing tournament in the State of Texas). In his free time, Julian loves spending time with his number one legal assistant, his daughter, Averri; and is an avid outdoorsman, rancher, photographer, snow skier, and tarpon fly-fishing angler.

For more information on Julian C. Gomez visit his website at https://www.jcglf.com/